Santiago v. Mackie Wolf Zientz & Mann, P.C.
| Decision Date | 19 August 2014 |
| Docket Number | No. 05-13-00620-CV,05-13-00620-CV |
| Court | Texas Court of Appeals |
| Parties | LUIS A. SANTIAGO AND LINDA A. SANTIAGO, Appellants v. MACKIE WOLF ZIENTZ & MANN, P.C., Appellee |
On Appeal from the 296th Judicial District Court Collin County, Texas
Before Chief Justice Wright, Justice Bridges, and Justice Richter1
Opinion by Justice Richter
Luis and Linda Santiago sued several entities involved in their home equity loan and the law firm of Mackie Wolf Zientz and Mann, P.C. (Mackie Wolf). After the trial court granted summary judgment in favor of Mackie Wolf on all of the Santiago's claims, the trial court granted Mackie Wolf's motion to sever. In two issues, appellants contend the trial court erred in granting Mackie Wolf's motion for summary judgment because (1) the trial court granted summary judgment on an unpleaded affirmative defense, and (2) Mackie Wolf is not entitled to attorney immunity on this record. We agree that Mackie Wolf is not entitled to attorney immunity on this record, and reverse and remand the trial court's judgment.
Appellants obtained a home equity loan secured by a deed of trust on their home in 2004. After appellants defaulted on the loan, Mackie Wolf was retained by the Bank of New York Mellon, successor in interest to JP Morgan Chase Bank, as Trustee for the registered holders of Novastar Mortgage Funding Trust (BONY) and Ocwen Loan Servicing, LLC. (Ocwen) to handle the foreclosure proceedings. In January 2011, appellants received a notice of default and acceleration from Mackie Wolf. Appellants sent a letter to Mackie Wolf requesting to inspect the original promissory note for the loan. Luis Santiago set an appointment and went to Mackie Wolf's office to inspect the note. According to appellants, the proffered promissory note was counterfeit.
Appellants filed suit on May 16, 2011, alleging that BONY and Ocwen conspired to commit fraud by producing and presenting a counterfeit promissory note to show that BONY owned the property in dispute. According to appellants, BONY and Ocwen did so to show that they had the authority to foreclose on the property. As the litigation progressed, the case was removed to federal court and appellants added Mackie Wolf as a defendant. The case was then remanded back to state district court. Once the case was remanded, appellants filed their third amended petition and specifically alleged claims against Mackie Wolf for conspiracy to commit fraud, negligent misrepresentation, and violations of section 12.002 of the Texas Civil Practice and Remedies Code. Eight days later, Mackie Wolf filed a traditional motion for summary judgment on the Santiago's conspiracy to defraud claim. In this motion, the only ground asserted by Mackie Wolf was that it was immune from liability for actions taken in its representation of BONY and Ocwen in the foreclosure as a matter of law.
Mackie Wolf contends all of the alleged actions it took were in the course of representing BONY and Ocwen in the foreclosure action. The cornerstone of Mackie Wolf's motion was theprinciple that an attorney is not liable to third parties for actions taken and advice given in representing a client. Importantly, Mackie Wolf did not allege no-evidence grounds in its motion for summary judgment and did not address appellants claims for negligent misrepresentation and violation of section 12.002. Appellants responded arguing that attorney immunity does not apply to their claims. After considering Mackie Wolf's motion and appellants' response, the trial court granted Mackie Wolf's motion for summary judgment. Subsequently, appellants' claims against Mackie Wolf were severed from the litigation, making the summary judgment final. Appellants timely appealed.
We review a trial court's decision to grant summary judgment de novo. Valence Operating v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins., Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). The standard for reviewing a traditional motion for summary judgment is well established. See Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 548-49 (Tex. 1985) (traditional motions under Rule 166a(c)). To prevail, the movant must establish that no genuine issue of material fact exists and it is entitled to judgment as a matter of law. Id.; see also TEX. R. CIV. P. 166a(c). When reviewing a summary judgment, we take as true all evidence favorable to the non-movant. See Valence Operating, 164 S.W.3d at 661. We also indulge every reasonable inference and resolve any doubts in the non-movants favor. Id.
A defendant may prevail on summary judgment by disproving at least one element of each of the plaintiff's claims or conclusively establishing all elements of an affirmative defense to each claim. Gen. Mills Rest., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 832 (Tex. App.—Dallas 2000, no pet.); Am. Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). Summary judgment on the basis of an affirmative defense is proper when the defendant has conclusively proved each essential element of their defense as a matter of law, leaving no genuine issue ofmaterial fact remaining. Henson v. Sw. Airlines Co., 180 S.W.3d 841, 843 (Tex. App.—Dallas 2005, pet. denied); Montgomery v. Kennedy, 669 S.W.2d 309, 310-311 (Tex. 1984). If the defendant establishes an affirmative defense which would bar the suit as a matter of law, the plaintiff must then present evidence raising a fact issue in avoidance of the affirmative defense, for example, facts which bring the matter within an exception or defense to the defendant's affirmative defense. See Gonzalez v. City of Harlingen, 814 S.W.2d 109 (Tex. App.—Corpus Christi 1991, writ denied); Palmer v. Ensearch Corp., 728 S.W.2d 431, 435 ().
Texas law authorizes attorneys to "practice their profession, to advise their clients, and to interpose any defense or supposed defense, without making themselves liable for damages." Kruegel v. Murphy, 126 S.W. 343, 345 (Tex. Civ. App.—Dallas 1910, writ ref'd). This doctrine is often termed "attorney immunity." The purpose behind the rule is to allow an attorney to fulfill his duty and zealously represent his clients within the bounds of the law by fully taking advantage of a client's rights and defenses without the threat of liability. See Bradt v. West, 892 S.W.2d 56, 71-72 (Tex. App. —Houston [1st Dist.] 1994, writ denied). It recognizes that the public has an important interest in "loyal, faithful and aggressive representation by the legal profession" Id. at 71 (quoting Maynard v. Caballero, 752 S.W.2d 719, 721 (Tex. App.—El Paso 1988, writ denied)), and if an attorney could be held liable for statements made or actions taken in the course representing a client, he would be forced to balance his own potential exposure against the client's best interest. See Alpert v. Crain, Caton & James, P.C., 178 S.W.3d 398, 405 (Tex. App.—Houston [1st Dist.] 2005, pet. denied). Therefore, "an attorney's conduct, even if frivolous or without merit, is not actionable as long as the conduct was part of the discharge of the lawyer's duties in representing his or her client." Toles v. Toles, 113 S.W.3d 899, 911 (Tex.App. —Dallas 2003, no pet.); see also Chapman Children's Trust v. Porter & Hedges, L.L.P., 32 S.W.3d 429, 441 (Tex. App.—Houston [14th Dist.] 2000, pet. denied).
However, a lawyer's protection from liability claims arising out of the representation of a client is not without limits. See Toles, 113 S.W.3d at 911. Texas courts have recognized exceptions to the attorney immunity defense based on an attorney's fraudulent or malicious conduct, even if the attorney's conduct was in the course of representing their client. See id.; McCamish, Martin, Brown & Loeffler v. F.E. Appling Interests, 991 S.W.2d 787, 794 (Tex. 1999); Likover v. Sunflower Terrace II, Ltd., 696 S.W.2d 468, 472 (Tex. App.—Houston [1st Dist.] 1985, no writ); Poole v. Houston & T.C. Ry., 58 Tex. 134, 137 (Tex. 1882).
An attorney can be held liable by a third party for actions that are not part of the discharge of his duties to his client. See Alpert, 178 S.W.3d at 406; see also Bradt, 892 S.W.2d at 71. As such, attorneys acting on behalf of their clients are not shielded from liability for their fraudulent conduct because fraudulent acts are entirely "foreign to the duties of an attorney." Poole, 58 Tex. at 137 (); see also Toles, 113 S.W.3d at 911-912 (). Furthermore, an attorney is also liable if he knowingly enters into a conspiracy to defraud a third person in the course of representing his client. See Likover, 696 S.W.2d at 472 (). And under certain circumstances, attorneys may also be liable to a third party for other torts, such as negligent misrepresentation, despite the absence of a general negligence duty to non-clients. See McCamish, Martin, Brown & Loeffler, 991 S.W.2d at 793-94. Thus, if the only ground for summary judgment is attorney immunity, and the plaintiff alleges claims that could arguably involve fraudulent conduct, the trial court should deny a motion for summary judgment based on attorney immunity as to thoseclaims. See Toles, 113 S.W.3d at 912 ().
Here, Mackie Wolf moved for summary judgment asserting the affirmative defense of attorney immunity. Appellants argue on appeal that summary judgment was improper because (1) it was granted on an unpleaded affirmative defense, and (2) attorney immunity does...
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