Opinion
NO. 03-15-00471-CV
04-27-2016
Rose M. Geister, Appellant v. Discover Bank, Appellee
FROM THE DISTRICT COURT OF HAYS COUNTY, COUNTY COURT AT LAW NO. 2
NO. 14-0679-C, HONORABLE DAVID GLICKLER, JUDGE PRESIDINGMEMORANDUM OPINION
Rose M. Geister, appearing pro se, appeals the trial court's summary judgment in favor of Discover Bank on its claim for breach of contract for delinquent payments due on Geister's credit card. Geister contests Discover's entitlement to summary judgment and raises other issues on appeal, including alleged due-process violations. Because the parties are familiar with the facts and procedural background, we dispense with a recitation of that information except as necessary to explain the reasons for our decision. See Tex. R. App. P. 47.4. We will affirm the trial court's final summary judgment.
In her first issue, Geister submits that the trial court erred in relying on Discover's summary-judgment proof in the form of a business-records affidavit. She contends that the affidavit was defective because it was not based on personal knowledge and that it contained hearsay. However, these are alleged defects in form, and Geister has waived them by not objecting to them in writing before the trial court. Tex. R. Civ. P. 166a(f) (defects in form of affidavits or attachments will not be grounds for reversal unless specifically pointed out by objection); Freeman Fin. Inv. Co. v. Toyota Motor Co., 109 S.W.3d 29, 33 (Tex. App.—Dallas 2003, pet. denied). Also within this first issue, Geister challenges the trial court's reliance on evidence in the form of a credit-card agreement that she claims she did not sign. This challenge is integral to Geister's fifth issue, in which she challenges Discover's entitlement to summary judgment as a matter of law. We therefore discuss the issues together.
Geister also seems to claim that the business-records affidavit is "fraudulent" because at the hearing, Discover's counsel inadvertently referred to the male affiant as "she" rather than "he." However, a party's entitlement to summary judgment must stand on the evidence itself, not the characterization or interpretation of that evidence by a party or its counsel. Moreover, it is not clear how counsel's mistake would render the affidavit "fraudulent."
In her fifth issue, Geister contends that the trial court erred in granting Discover's summary-judgment motion because there were material fact issues. However, Geister did not file any response to Discover's summary-judgment motion, nor did she timely produce any evidence in response to the motion. She therefore did not raise a material fact issue, and if Discover met its initial burden to establish its right to judgment as a matter of law, the trial court properly granted summary judgment. Wakefield v. Wells Fargo Bank, N.A., No. 14-12-00686-CV, 2013 WL 6047031, at *4 (Tex. App.—Houston [14th Dist.] Nov. 14, 2013, no pet.) (mem. op.); see Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005) (we review summary judgments de novo); Provident Life & Accid. Ins. Co. v. Knott, 128 S.W.3d 211, 215-16 (Tex. 2003) (traditional summary judgment is properly granted when movant establishes that there are no genuine issues of material fact and that it is entitled to judgment as matter of law).
Summary judgment is appropriate in a breach-of-contract suit seeking recovery on a credit-card debt when the plaintiff establishes: (1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by the defendant; and (4) damages sustained by the plaintiff as a result of the breach. Wakefield, 2013 WL 6047031, at *4 (citing Roof Sys., Inc. v. Johns Manville Corp., 130 S.W.3d 430, 442 (Tex. App.—Houston [14th Dist.] 2004, no pet.)). Discover attached the following evidence to its summary-judgment motion: a business-records affidavit, in which a Discover employee attested to the debt balance owed by Geister and the veracity of attached business records in the form of (1) a copy of the Cardmember Agreement governing Geister's account; (2) recent account statements listing Geister's purchases, payments and credits, interest charges and fees, and balance owing; and (3) a status report pursuant to the Servicemembers Civil Relief Act indicating that Geister is not on active military duty. This uncontroverted evidence conclusively established Discover's right to summary judgment as a matter of law. Wincheck v. American Exp. Travel Related Servs. Co., 232 S.W.3d 197, 204-06 (Tex. App.—Houston [1st Dist.] 2007, no pet.).
Geister challenges the existence of a valid agreement with Discover because the Cardmember Agreement does not bear her signature. However, the Cardmember Agreement attached to the business-records affidavit provided that by using the credit card issued to her by Discover, Geister accepted the agreement. Without contradicting evidence from Geister that she did not use the card during the period when she accrued an outstanding balance or any other facts demonstrating non-acceptance, Discover's evidence demonstrates that Geister accepted Discover's offer to provide credit and the terms of the Cardmember Agreement. See Wakefield, 2013 WL 6047031, at *5; Wincheck, 232 S.W.3d at 202. Accordingly, the trial court did not err in granting summary judgment in favor of Discover on its breach-of-contract claim. We overrule Geister's first and fifth issues.
In her brief, Geister also contends that the debt awarded to Discover as damages ($7,241.19) in the trial court's summary judgment was "settled with Freedom Debt Relief" (a debt-servicing company) after the judgment was signed and that she is on a payment plan, scheduled to complete making payments on the debt by June 30, 2016. However, any facts relating to this contention exist only in Geister's brief and are not in the record, and we therefore may not consider them in our review. See Carlisle v. Phillip Morris, Inc., 805 S.W.2d 498, 501 (Tex. App.—Austin 1991, writ denied) (materials outside appellate record may not be considered on appeal). Moreover, Geister does not explain how the fact that she has allegedly settled the debt through a third party would be relevant to her appeal of Discover's entitlement to judgment on the debt in the first instance.
In her second issue, Geister contends that her due-process rights were violated because she was not allowed to testify and present evidence at the summary-judgment hearing. However, no oral testimony may be received at a hearing on a motion for summary judgment, Tex. R. Civ. P. 166a(c); Laubach v. Chunn, No. 03-02-00431-CV, 2003 WL 21467082, at *2 (Tex. App.—Austin June 26, 2003, no pet.) (mem. op.), and documentary evidence must be filed with a written response to a summary-judgment motion seven days prior to the hearing, Tex. R. Civ. P. 166a(c); see also Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978) (pro se litigants must comply with applicable procedural rules, or else they would be given unfair advantage over litigants represented by counsel). Geister did not file any response to Discover's motion or pre-file evidence as required by the rules of civil procedure. Although the hearing transcript indicates that she sought to offer some unspecified documents to the court for late consideration but was denied that opportunity, there is no indication in the record of what exactly the proffered documents were, whether the documents were relevant to Discover's summary-judgment motion, and any explanation as to why they had not been timely filed. Without such information in the record, we cannot conclude that the trial court abused its discretion in not considering the documents. See Fowlkes v. Del Rio Bank & Trust Co., 747 S.W.2d 443, 444 (Tex. App.—San Antonio 1988, no writ) (we review trial court's denial of leave to file late summary-judgment evidence for abuse of discretion); see also Wisard v. Koenig, No. 03-13-00480-CV, 2015 WL 1778223, at *2 (Tex. App.—Austin Apr. 17, 2015, no pet.) (mem. op.) (in absence of complete record, we cannot find that trial court abused discretion). The trial court did not err in not permitting Geister to testify and present documentary evidence at the hearing. We overrule Geister's second issue.
The trial court's comments at the hearing indicate that the documents may have been print-outs from the internet or have pertained to Geister's dealings with a debt-servicing company, Freedom Debt Relief.
In her third issue, Geister contends that the court reporter "intentionally changed" the transcript of the summary-judgment hearing, which was a "fraudulent" act and "put [Geister] at a disadvantage." However, the only act we may review on appeal is the trial court's final summary judgment in favor of Discover, not alleged misconduct on the part of a court reporter. See Tex. R. App. P. 43.2 (providing different types of judgments that court of appeals may render when reviewing trial court's judgment). The court reporter's alleged improper conduct is simply not relevant to the issue of whether Discover's summary-judgment motion and attached proof entitled it to judgment as a matter of law, nor has Geister identified any manner in which the court reporter's alleged conduct was known to the trial court or affected its judgment. Moreover, the summary- judgment hearing was non-evidentiary, and Geister has not identified how alleged errors in how the hearing was transcribed harmed her or would affect our review of the trial court's determination on the summary-judgment motion, as our review is de novo and does not turn on the arguments made and interactions among the trial court and parties at the summary-judgment hearing. Finally, there are specific procedural rules for correcting inaccuracies in a reporter's record, and Geister has not identified in the record any efforts she made to comply with such procedures. See Tex. R. App. P. 34.6(e). We overrule her third issue.
In her fourth issue, Geister raises several claims and defenses—such as Discover's alleged violations of the Fair Debt Collection Practices Act (FDCPA)—for the first time in her appellate brief, arguing that the claims and defenses raise fact issues on Discover's entitlement to summary judgment. However, she did not file a written response to Discover's summary-judgment motion and therein raise any of the claims or defenses she now raises on appeal, nor did she assert any of the claims in a counter-petition; therefore, she may not challenge the summary judgment on the basis of these new grounds. See City of Hous. v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979) (with exception of attack on legal sufficiency of grounds expressly raised by movant, non-movant must expressly and in writing present to trial court any reasons seeking to avoid movant's entitlement, including presenting evidence when necessary to establish fact issue); see also McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 (Tex. 1993) (respondent must expressly present to trial court any reasons for avoiding movant's right to summary judgment). "Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal." Clear Creek Basin Auth., 589 S.W.2d at 678. Accordingly, we overrule Geister's fourth issue, in which she contends that the trial court's summary judgment was improper because Discover violated the FDCPA and other federal laws in attempting to collect on Geister's debt.
In her sixth and final issue, Geister complains that the trial court "allowed fraud." Besides the alleged "fraud" we have already discussed, Geister appears to be contending that the trial court's recitation in its final summary judgment that "After careful consideration of the pleadings, the other summary judgment evidence, and the arguments of the parties . . ." (emphasis added) is fraudulent because the trial court "did not allow her to speak" at the hearing. However, the transcript of the hearing indicates that, while Geister was not permitted to introduce evidence that she had not previously filed or provide oral testimony at the hearing, she was provided with the opportunity to make arguments and did so. Moreover, even if the trial court's recitation in its judgment that it had "considered the arguments of the parties" were false, Geister has not explained how such recitation harmed her or would amount to "fraud" or entitle her to any relief on appeal. To the extent that her sixth issue complains of any other "fraud," her brief does not explain in any detail the contention or make any record references, and she has, accordingly, waived the issue. See Tex. R. App. P. 38.1(i) (requiring brief to contain appropriate citations to record and authorities); Fredonia State Bank v. General Am. Life Ins. Co., 881 S.W.2d 279, 284-85 (Tex. 1994) (holding that appellate courts have discretion to deem issues waived due to inadequate briefing). We overrule Geister's sixth issue.
Geister filed a copy of the complaint she made against the court reporter with this Court, in which she included additional statements that she allegedly made at the hearing but that were omitted from the hearing transcript; she does not contend that the transcript contains any statements from any person that were not actually made. The reporter's record as it was filed with this Court, as well as Geister's alleged corrections (assuming we could properly consider them on appeal), both indicate that she had the opportunity to "speak" and make arguments at the hearing. --------
CONCLUSION
For the foregoing reasons, we affirm the trial court's summary judgment.
/s/_________
David Puryear, Justice Before Justices Puryear, Goodwin, and Bourland Affirmed Filed: April 27, 2016