                                                                          ACCEPTED
                                                                      03-15-00471-CV
                                                                              7944716
                                                           THIRD COURT OF APPEALS
                                                                      AUSTIN, TEXAS
                                                               11/23/2015 10:57:58 AM
                                                                    JEFFREY D. KYLE
                                                                               CLERK
           Appeal No. 03-15-00471-CV
            ____________________
            In the Court of Appeals                   FILED IN
                                               3rd COURT OF APPEALS
             Third Judicial District               AUSTIN, TEXAS
                 AUSTIN, TX                   11/23/2015 10:57:58 AM
            ____________________                 JEFFREY D. KYLE
                                                       Clerk
              ROSE M. GEISTER
                 Appellant

                       v.

                DISCOVER BANK
                     Appellee
              ____________________
On Appeal from the County Court at Law Number Two
                Hays County, Texas
                Cause No. 14-0679C
   The Honorable David Glickler, Judge Presiding

             BRIEF OF APPELLEE



                            Respectfully submitted,

                       By: /s/ Troy D. Bolen________________
                           TROY D. BOLEN
                           State Bar Number 24006199
                           ELISE D. MANCHESTER
                           State Bar Number 24070566
                           ATTORNEYS FOR APPELLEE
                           ZWICKER & ASSOCIATES, P.C.
                           Old Town Square
                           1 Chisholm Trail, Suite 301
                           Round Rock, Texas 78681
                           ZATXattorneys@zwickerpc.com
                           512-218-0488
                           512-218-0477 fax
                    LIST OF PARTIES AND THEIR COUNSEL

          Pursuant to Rule 38.1(a) of the Texas Rules of Appellate Procedure, the

following is a complete list of the names and addresses of all parties to the trial

court’s final judgment and all trial and appellate counsel.

Parties                                     Counsel

ROSE M. GEISTER                              PRO SE
Appellant


DISCOVER BANK                                TROY D. BOLEN
Appellee                                     ELISE D. MANCHESTER
                                             ZWICKER & ASSOCIATES, P.C.
                                             A Law Firm Engaged in Debt
                                             Collection
                                             Old Town Square
                                             1 Chisholm Trail, Suite 301
                                             Round Rock, Texas 78681
                                             512-218-0488
                                             512-218-0477 fax
                                             ZATXattorneys@zwickerpc.com




Brief of Appellee
Rose M. Geister v. Discover Bank –
Page 2 of 15
                                             TABLE OF CONTENTS

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                       4-5

STATEMENT OF THE CASE                            ...............................                                5

STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . .                                              5

ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                 6

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                   6

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                              7

ARGUMENT AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                               7

         Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .            7

         Appellant Waived Her Objections to Appellee’s Motion for Summary
         Judgment by Failing to File a Timely, Written Response. . . . . . . . . .                               7

         Oral Testimony is not Permitted at Summary Judgment Hearings . . .                                     11

         Appellant is Precluded from Raising New Claims on Appeal. . . . . . .                                 12

         Appellant May Not Submit New or Additional Evidence on Appeal . .                                      13


PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   14

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                    15

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                         15




Brief of Appellee
Rose M. Geister v. Discover Bank –
Page 3 of 15
                                     INDEX OF AUTHORITIES

                                                    Case Law

City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671 (Tex. 1979). . 7, 8, 12

Harrell v. Patel, 225 S.W.3d 1 (Tex. App. —El Paso 2005, pet. denied) . . . . . .                                    9

Haynes v. Haynes, 178 S.W.3d 350 (Tex.App.—Houston [14th Dist.]
2005, pet. denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Life Ins. Co. of Va. v. Gar-Dal, Inc., 570 S.W.2d 378 (Tex. 1978) . . . . . . . . . . . 9

Loera v. Interstate Inv. Corp., 93 S.W.3d 224 (Tex. App. —Houston
[14th Dist.] 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857 (Tex. 2000) . . . . . . . 8

Martinez v. Leeds, 218 S.W.3d 845 (Tex.App.—El Paso 2007, no pet.) . . . . . . 11

Morriss v. Enron Oil & Gas Co., 948 S.W.2d 858
(Tex.App.—San Antonio 1997, no writ.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Rios v. Northwestern Steel & Wire Co., 974 S.W.2d 932
(Tex.App.—Houston [14th Dist.] 1998, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Rizkallah v. Conner, 952 S.W.2d 580 (Tex.App. —Houston
[1st Dist.] 1997, no writ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Sabine Offshore Serv. v. City of Port Arthur, 595 S.W.2d 840 (Tex. 1979) . . . . 13

Samara v. Samara, 52 S.W.3d 455 (Tex. App. —Houston
[1st Dist.] 2001, pet. denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Seidner v. Citibank, 201 S.W.3d 332 (Tex.App. —Houston
[14th Dist.] 2006, pet. denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9


Brief of Appellee
Rose M. Geister v. Discover Bank –
Page 4 of 15
Till v. Thomas, 10 S.W.3d 730 (Tex. App. — Houston [1st Dist.] 1999, no pet.) . 13

Valence Oper. Co. v. Dorsett, 164 S.W.3d 656 (Tex. 2005) . . . . . . . . . . . . . . . . . 7

Wiley-Reiter Corp. v. Groce, 693 S.W.2d 701
(Tex. App.—Houston [14th Dist.] 1985, no writ) . . . . . . . . . . . . . . . . . . . . . . . . 12

Winchek v. Am. Express Travel Related Servs. Co., 232 S.W.3d 197
(Tex. App.—Houston [1st Dist.] 2007, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . 10

                                                Statutes

Texas Rule of Civil Procedure 166a . . . . . . . . . . .. . . . . . . . . . . . . . . . . .   7, 8, 11

                                STATEMENT OF THE CASE

        This is an appeal from the July 13, 2015 order granting summary judgment

in favor of Appellee, Discover Bank, against Appellant, Rose M. Geister. (CR. 59-

60). Appellee’s underlying action is for breach of contract arising from an unpaid

balance due on Appellant’s Discover Bank credit card account. (CR. 4-6).

        Appellee filed a Motion for Summary Judgment. Appellant did not file a

response to Appellee’s Motion for Summary Judgment. (CR. 72-73). After notice

and hearing, summary judgment was granted in favor of Appellee. (CR. 59-60).

Appellant filed a Notice of Appeal on July 21, 2015. (CR. 61-63).

                  STATEMENT REGARDING ORAL ARGUMENT

        Appellee does not request oral argument for this appeal.




Brief of Appellee
Rose M. Geister v. Discover Bank –
Page 5 of 15
                              ISSUES PRESENTED

ISSUE ONE:         APPELLANT WAIVED HER OBJECTIONS TO
                   APPELLEE’S MOTION FOR SUMMARY JUDGMENT BY
                   FAILING TO FILE A TIMELY, WRITTEN RESPONSE

ISSUE TWO:         ORAL TESTIMONY IS NOT PERMITTED AT SUMMARY
                   JUDGMENT HEARINGS

ISSUE THREE:       APPELLANT IS PRECLUDED FROM ASSERTING NEW
                   DEFENSES ON APPEAL

ISSUE FOUR:        APPELLANT MAY NOT SUBMIT NEW OR ADDITIONAL
                   EVIDENCE ON APPEAL

                            STATEMENT OF FACTS

      Appellee, Discover Bank, filed suit against Appellant, Rose M. Geister, on

October 6, 2014 for breach of contract arising from charges associated with

Appellant’s Discover Bank credit card account. (CR. 4-6). Appellant was served

with the lawsuit November 3, 2014. (CR. 72). Appellee filed a Traditional Motion

for Summary Judgment on April 2, 2015 requesting that judgment be rendered for

Appellee on its breach of contract claim against Appellant. (CR. 7-11). Appellant

appeared at the summary judgment hearing but did not file a written response to

Appellee’s Motion for Summary Judgment. (CR. 72-73, RR. 2). After notice and

hearing, summary judgment was granted in favor of Appellee on July 13, 2015.

(CR. 59-60). Appellant filed a Notice of Appeal on July 21, 2015. (CR. 61-63).


Brief of Appellee
Rose M. Geister v. Discover Bank –
Page 6 of 15
                          SUMMARY OF THE ARGUMENT

      The trial court’s summary judgment should be affirmed because Appellant

waived her objections to Appellee’s Motion for Summary Judgment by failing to

file a timely, written response. Appellant was not permitted to testify at the

summary judgment hearing because oral testimony is not allowed during summary

judgment proceedings. Furthermore, Appellant is not permitted to assert new

defenses or present new evidence on appeal. The trial court’s judgment was

proper, in accordance with the rules regarding summary judgment practice, and

should be upheld by this Court

                      ARGUMENT AND AUTHORITIES

                  Standard of Review for Summary Judgment

      A traditional motion for summary judgment is reviewed on appeal de novo.

Valence Oper. Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).

    Appellant Waived Her Objections to Appellee’s Motion for Summary
          Judgment By Failing to File a Timely, Written Response

      Appellant did not file a written response to Appellee’s motion for summary

judgment thus waiving her objections on appeal. A response to a motion for

summary judgment must be in writing and must be filed and served at least seven

days before the hearing. Tex. R. Civ. P. 166a(c); See City of Houston v. Clear


Brief of Appellee
Rose M. Geister v. Discover Bank –
Page 7 of 15
Creek Basin Auth., 589 S.W.2d 671, 677 (Tex. 1979). In the summary judgment

context, the non-movant should assert all of its challenges to the summary

judgment in its response. See Tex. R. Civ. P. 166a(c); See Lopez v. Munoz,

Hockema & Reed, L.L.P., 22 S.W.3d 857, 862 (Tex. 2000); See also City of

Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex. 1979). On

appeal, the appellate court will not consider any issues as grounds for reversal that

were not presented to the trial court by a written response. Id. A party must object

in writing to any formal deficiencies in the summary judgment proof, or the party

waives the objection. Tex. R. Civ. P. 166a(f); City of Houston, 589 S.W.2d at 677.

None of the objections raised in Appellant’s brief were properly asserted before the

trial court in a written response filed seven days prior to the summary judgment

hearing.

      Appellant objects for the first time on appeal to the content of Appellee’s

summary judgment affidavit. The party objecting to the content of an affidavit

submitted to the trial court must identify the specific statements in the affidavit that

are objectionable and state why they are objectionable. See Haynes v. Haynes, 178

S.W.3d 350, 355 (Tex.App.—Houston [14th Dist.] 2005, pet. denied). Appellant

failed to file a written response or produce any evidence before the trial court




Brief of Appellee
Rose M. Geister v. Discover Bank –
Page 8 of 15
showing that Appellee’s summary judgment evidence was fraudulent or otherwise

inadmissible.

      Appellant also objects for the first time on appeal to the competency of

Appellee’s summary judgment affiant. The objection that an affidavit is made by

an incompetent witness must be made in the trial court or else the objection is

waived. Rizkallah v. Conner, 952 S.W.2d 580, 586 (Tex.App. —Houston [1st

Dist.] 1997, no writ).

      Next Appellant objects on appeal that Appellant’s summary judgment

affidavit contains hearsay testimony. An objection that testimony contains hearsay

must be made before the trial court, or else it is waived. Harrell v. Patel, 225

S.W.3d 1, 6 (Tex. App. —El Paso 2005, pet. denied). Unless a party objects to

hearsay evidence at trial, the evidence will support a grant of summary judgment.

Id. Similarly, the objection that an affidavit does not lay the proper predicate for

admissibility must be made at trial or else it is waived. Life Ins. Co. of Va. v. Gar-

Dal, Inc., 570 S.W.2d 378, 380-81 (Tex. 1978); Seidner v. Citibank, 201 S.W.3d

332, 334-35 (Tex.App.—Houston [14th Dist.] 2006, pet. denied).

      Appellee presented competent, admissible summary judgment evidence in

support of its Motion for Summary Judgment. Appellee’s summary judgment

affidavit states that the affidavit is made on the basis of the affiant’s personal



Brief of Appellee
Rose M. Geister v. Discover Bank –
Page 9 of 15
knowledge and the affidavit is properly sworn. (CR. 14-15). The documentary

evidence consisting of the bank’s business records attached to the affidavit shows

the balance due and owing on Appellant’s credit card account and the evidence

admitted by the trial court is sufficient to support the court’s award of a summary

judgment in Appellee’s favor. (CR. 17-56).

      Appellant argues on appeal that a signed contract should have been

produced at trial. However, the evidence admitted before the trial court of the

defendant’s acceptance and use of the credit card and then making payments on the

account demonstrates the existence of an contract between the parties.            See

Winchek v. Am. Express Travel Related Servs. Co., 232 S.W.3d 197, 204 (Tex.

App.—Houston [1st Dist.] 2007, no pet.).

      Appellant failed to properly and timely raise any of her objections in the trial

court by way of a written response to Appellee’s Motion for Summary Judgment.

As a result, Appellant’s defenses and objections to the summary judgment motion

were waived and should not be considered for the first time on appeal. The trial

court’s decision to grant Appellee’s Motion for Summary Judgment was proper

based on the pleadings and evidence presented to the trial court. There is no

reversible error presented on this appeal.




Brief of Appellee
Rose M. Geister v. Discover Bank –
Page 10 of 15
      Oral Testimony is Not Permitted at Summary Judgment Hearings

      Appellant argues that her Due Process rights were violated as a result of not

being allowed to testify and present evidence at the summary judgment hearing.

Texas Rule of Civil Procedure 166a(c) provides that no oral testimony shall be

received at a hearing on a motion for summary judgment. The trial court adhered

to this rule by prohibiting Appellant from testifying at the summary judgment

hearing.   Further, the trial court did not consider any documentary evidence

presented by the Appellant because it was not filed with a written response seven

(7) days prior to the hearing in accordance with Texas Rule of Civil Procedure

166a(c). Appellant’s rights were not violated by the trial court’s actions. On the

contrary, the trial court was applying the rules applicable to summary judgment

proceedings. These rules apply to all litigants regardless of whether the party is

proceeding pro se or is represented by counsel. See Martinez v. Leeds, 218 S.W.3d

845, 848 (Tex.App.—El Paso 2007, no pet.). A party acting pro se must comply

with substantive law and procedural rules. Id.

      Appellant’s    allegations     regarding   the   court   reporter’s   record   are

unsubstantiated and irrelevant to this appeal. In an appeal of a summary judgment

case, a reporter’s record is generally not filed because Texas Rule of Civil

Procedure 166a provides that no oral testimony shall be received at the hearing.



Brief of Appellee
Rose M. Geister v. Discover Bank –
Page 11 of 15
Rios v. Northwestern Steel & Wire Co., 974 S.W.2d 932, 936 (Tex.App.—Houston

[14th Dist.] 1998, no pet.). No reporter’s record is necessary in the summary

judgment context because no oral testimony shall be considered. See id. The

reporter’s record and Appellant’s various allegations regarding the reporter’s

record are not relevant or material to this appeal.

  Appellant is Precluded from Raising New Defenses and Claims on Appeal

      Appellant’s brief asserts various claims, causes of action, and defenses,

including but not limited to fraud, RICO violations, violations of the Fair Debt

Collection Practices Act, deceptive trade, statute of frauds, and state consumer

protection laws. None of these claims or defenses were properly asserted in the

trial court and cannot be asserted for the first time on appeal. It is well-settled that

an appellate court should not decide a case on a theory different from that on which

it was pleaded and tried. Loera v. Interstate Inv. Corp., 93 S.W.3d 224, 228 (Tex.

App. —Houston [14th Dist.] 2002) citing Wiley-Reiter Corp. v. Groce, 693 S.W.2d

701, 704 (Tex. App.—Houston [14th Dist.] 1985, no writ). The trial court’s grant

of summary judgment will not be reversed on a ground that was not expressly

presented to the trial court by a written motion, answer, or other response to the

motion for summary judgment. Morriss v. Enron Oil & Gas Co., 948 S.W.2d 858,

871 (Tex.App.—San Antonio 1997, no writ.).            Issues a non-movant contends



Brief of Appellee
Rose M. Geister v. Discover Bank –
Page 12 of 15
defeat the grant of summary judgment that are not expressly presented to the trial

court by written answer or other written response to the summary judgment motion

are waived on appeal. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d

671, 677 (Tex. 1979). Appellant did not include any of these defenses or claims in

her pleadings before the trial court. Therefore Appellant did not preserve these

issues for review on appeal.

      Appellant May Not Submit New or Additional Evidence on Appeal

      Appellant is prohibited from presenting new or additional evidence on

appeal that is not a part of the trial court’s record. An appellate court may not

consider matters outside the appellate record. Sabine Offshore Serv. v. City of Port

Arthur, 595 S.W.2d 840, 841 (Tex. 1979).         The attachment of documents as

exhibits or appendices to briefs is not formal inclusion in the record on appeal and,

thus, the documents cannot be considered. See Samara v. Samara, 52 S.W.3d 455,

456 n.1 (Tex. App. —Houston [1st Dist.] 2001, pet. denied); Till v. Thomas, 10

S.W.3d 730, 733-34 (Tex. App. — Houston [1st Dist.] 1999, no pet.).

      Appellant has attached to her brief, as well as filed independently with the

Court of Appeals, a number of documents that are not a part of the record on

appeal, including letters to the Clerk of the Court of Appeals, settlement

correspondence between the parties, proposed settlement documents sent to



Brief of Appellee
Rose M. Geister v. Discover Bank –
Page 13 of 15
Appellant after the summary judgment was signed, email correspondence with

Freedom Debt Relief, and a letter filed September 23, 2015 with the Court of

Appeals with various documents attached. (Appellant’s Brief, Appendix C & D).

None of the aforementioned documentation was included in the record on appeal

and should not be considered by the Court for determination of this appeal.

                                     PRAYER

      WHEREFORE, for the foregoing reasons as stated herein, Appellee

respectfully requests that the trial court’s order granting summary judgment be

affirmed in its entirety. Appellant further requests any and all such other relief to

which it may be entitled.

                                       Respectfully submitted,

                                       ZWICKER & ASSOCIATES, P.C.
                                       A Law Firm Engaged in Debt Collection
                                       Old Town Square
                                       1 Chisholm Trail, Suite 301
                                       Round Rock, TX 78681
                                       512-218-0488
                                       512-218-0477 fax
                                       ZATXattorneys@zwickerpc.com

                                       By: /s/ Troy D. Bolen
                                           Troy D. Bolen
                                           State Bar Number 24006199
                                           Elise D. Manchester
                                           State Bar Number 24070566
                                          Attorneys for Appellee
                                          DISCOVER BANK


Brief of Appellee
Rose M. Geister v. Discover Bank –
Page 14 of 15
                          CERTIFICATE OF SERVICE

      I certify that I have served a true copy of the above Brief of Appellee on all

parties, which are listed below, via certified mail, return receipt requested and

regular mail on November 20, 2015 as follows:

      ROSE MARIE GEISTER
      156 Granite Shoals Drive
      Kyle, Texas 78640


                                        By: /s/ Troy D. Bolen
                                            Troy D. Bolen
                                            State Bar Number 24006199
                                            Elise D. Manchester
                                            State Bar Number 24070566
                                           Attorneys for Appellee
                                           DISCOVER BANK


                      CERTIFICATE OF COMPLIANCE

      Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), the number of

words in the above Brief of Appellee is 3377.

                                        By: /s/ Troy D. Bolen
                                            Troy D. Bolen
                                            State Bar Number 24006199
                                            Elise D. Manchester
                                            State Bar Number 24070566
                                           Attorneys for Appellee
                                           DISCOVER BANK




Brief of Appellee
Rose M. Geister v. Discover Bank –
Page 15 of 15
