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Santiago v. Mackie Wolf Zientz & Mann, P.C.

Court of Appeals of Texas, Fifth District, Dallas

March 10, 2017

LUIS A. SANTIAGO & LINDA A. SANTIAGO, Appellants
v.
MACKIE WOLF ZIENTZ & MANN, P.C., Appellee

         On Appeal from the 296th Judicial District Court Collin County, Texas Trial Court Cause No. 296-01743-2013.

          Before Justices Evans, Stoddart, and Boatright

          MEMORANDUM OPINION

          CRAIG STODDART JUSTICE

         Luis 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.

         Factual Background

         Appellants 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.

         In May 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.

         After 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.

         Law & Analysis

         In 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.[1] 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.

         Appellants 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.

         If we 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 did.

         Appellants 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.

         In 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 ...


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