Court of Appeals of Texas, Fifth District, Dallas
LUIS A. SANTIAGO & LINDA A. SANTIAGO, Appellants
MACKIE WOLF ZIENTZ & MANN, P.C., Appellee
Appeal from the 296th Judicial District Court Collin County,
Texas Trial Court Cause No. 296-01743-2013.
Justices Evans, Stoddart, and Boatright
and Linda Santiago appeal from an adverse summary judgment
ruling in favor of Mackie Wolf Zientz & Mann, P.C. and
the denial of their motion for continuance. In five issues,
appellants argue the trial court erred by granting summary
judgment on their claims, striking their summary judgment
evidence, and denying their motion for continuance. We affirm
the trial court's judgment.
obtained a home equity loan on their home in 2004. After
appellants defaulted on the loan, Bank of New York Mellon
(BONY) and Ocwen Loan Servicing, LLC. (Ocwen) retained Mackie
Wolf to handle the foreclosure proceedings. In January 2011,
Mackie Wolf sent a notice of default and acceleration to
appellants. After asking to inspect the original promissory
note for the loan, Luis Santiago went to Mackie Wolf's
office to inspect the note. According to appellants, the
promissory note was counterfeit and the signatures on the
note are not their signatures.
2011, appellants sued several entities, including BONY and
Ocwen, on numerous causes of action. Against Mackie Wolf,
appellants alleged claims for conspiracy to commit fraud,
violation of section 12.002 of the Texas Civil Practice and
Remedies Code, and negligent misrepresentation. Mackie Wolf
filed a traditional motion for summary judgment on the ground
that it was immune from liability for actions taken in its
representation of BONY and Ocwen in the foreclosure. The
trial court granted the motion for summary judgment, and
severed the claims against Mackie Wolf from the litigation
against other parties such as BONY and Ocwen. However, on
appeal, this Court reversed the trial court's judgment
and remanded for further proceedings. See Santiago v.
Mackie Wolf Zientz & Mann, P.C., No. 05-13-00621-CV,
2014 WL 4072131 (Tex. App.-Dallas Aug. 19, 2014) (mem. op.)
(Santiago I). Nine days after issuing our opinion in
Santiago I, this Court issued its opinion in
Santiago v. Novastar Mortgage, Inc., 443 S.W.3d 462
(Tex. App.-Dallas 2014), abrogated by Wood v. HSBC Bank
USA, N.A., 505 S.W.3d 542 (Tex. 2016) (Santiago
II), affirming the trial court's summary judgment in
favor of the other parties who were sued by appellants as a
result of the foreclosure, including BONY and Ocwen.
the case was remanded to the trial court, Mackie Wolf filed
its second motion for summary judgment asserting several
grounds on which it was entitled to judgment. Appellants
responded to the motion for summary judgment and moved for a
continuance. The trial court denied appellants' motion
for continuance and granted Mackie Wolf's motion for
summary judgment. The trial court also sustained Mackie
Wolf's objections to appellants' summary-judgment
evidence. This appeal followed.
their third issue, appellants argue the trial court erred by
sustaining Mackie Wolf's objections to four exhibits
attached to their response to the motion for summary
judgment. To resolve this appeal, we need only
consider appellants' complaint the trial court abused its
discretion by sustaining Mackie's Wolf's objections
to their Exhibit E: Luis Santiago's affidavit. Our
briefing rules require an appellant to make a clear and
concise argument for the contentions made and include
appropriate citations to authority. See Tex. R. App.
P. 38.1(i). When a party fails to do so, he does not
establish error in connection with the trial court's
evidentiary ruling and waives his complaint on appeal.
Flores v. Grayson County Cent. Appraisal Dist., No.
05-16-00180-CV, 2016 WL 7384161, at *2 (Tex. App.-Dallas Dec.
21, 2016, no. pet.) (mem. op.) (citing Tex.R.App.P. 38.1(i);
In re Estate of Marley, 390 S.W.3d 421, 425 (Tex.
App.-El Paso 2012, pet. denied)). Appellants cite no legal
authority to support their argument that the trial court
erred by sustaining objections to Luis Santiago's
affidavit and, therefore, appellants have waived this
complaint on appeal. We overrule appellants' third issue
to this extent.
also argue the trial court erred by signing the summary
judgment order without presenting it to appellants "for
form, substance, or any kind of approval or comment." To
support their argument, appellants cite Collin County Local
Rule 7.2, which states: "Within thirty (30) days after
rendition . . . counsel shall cause, unless ordered
otherwise, all judgments, decisions, and orders of any kind
to be reduced to writing approved as to form by opposing
counsel, and as to contents, if an agreed order, judgment, or
decree, and filed with the District Clerk." Collin
(Tex.) Civ. Dist. Ct. Loc. R. 7.2.
assume for purposes of this appeal that Mackie Wolf's
counsel did not comply with rule 7.2 and the trial court
erred by entering an order that was not presented to
appellants, we conclude appellants have not shown reversible
error. We will not reverse a trial court's judgment
unless the error "(1) probably caused the rendition of
an improper judgment; or (2) probably prevented the appellant
from properly presenting the case to the court of
appeals." Tex.R.App.P. 44.1. Before entering the final
judgment, the trial court issued a memorandum stating
appellants' motion for continuance was denied and Mackie
Wolf's motion for summary judgment was granted. The
memorandum then states: "The Court ORDERS counsel to
prepare an Order consistent to the rulings contained herein
and submit said Order to the Court for signature within 10
days." The record shows the trial court provided its
rulings to the parties and then ordered counsel to provide an
order for the court to enter, which Mackie Wolf's counsel
do not argue that any error caused the rendition of an
improper judgment or prevented them from properly presenting
their case to this Court, and, after reviewing the record, we
do not conclude that it did. We overrule the remainder of
appellants' third issue.
their second, fourth, and fifth issues, appellants argue the
trial court erred by granting Mackie Wolf's motion for
summary judgment. Mackie Wolf moved for summary judgment on
several grounds, including that appellants' claims are
barred by the doctrine of attorney immunity because the
claims are based on conduct that occurred as part of Mackie
Wolf's representation of its ...