in Re Albert Ortiz

Petition Denied; Affirmed in Part; Affirmed as Modified in Part; Reversed in Part;
Remanded; and Opinion and Dissenting Opinion filed November 20, 2012.

In The

Fourteenth Court of Appeals

NO. 14-10-01125-CV

NATIONAL CITY BANK OF INDIANA AND HOME LOAN SERVICES, INC.
Appellants/Cross-Appellees

V.

ALBERT ORTIZ, Appellee/Cross-Appellant

On Appeal from the 164th District Court
Harris County, Texas
Trial Court Cause No. 2006-61178

NO. 14-10-01262-CV

IN RE ALBERT ORTIZ, Relator

ORIGINAL PROCEEDING
WRIT OF MANDAMUS

DISSENTING OPINION
I respectfully dissent.
 APPEAL

The main issue in this case is whether there is more than one reasonable
interpretation of two letters signed on behalf of National City Bank of Indiana (the
“Bank”) by Home Loan Services, Inc. (the “Servicer”), at the request of one of the
Bank’s borrowers, Albert Ortiz. A careful review of the text of these letters shows only
one reasonable interpretation: without receiving any consideration, the Bank expressly
waived all of its rights against Ortiz under the promissory note dated March 15, 2004
(“Note”). Because of this unambiguous waiver, the Bank is not entitled to recover under
the Note. Accordingly, this court should affirm the trial court’s partial take-nothing
summary judgment in favor of Ortiz on claims arising from the Note.
The majority errs by concluding that the letters are ambiguous. As explained
below, there is nothing unclear or uncertain about the waiver language or its effect.
Under a straightforward application of Texas law, the letters mean precisely what they
say. Though the Bank and the Servicer (collectively, the “Bank Parties”) assert that they
did not intend to waive all the claims under the Note, the words they used could hardly be
clearer. The Bank may have acted imprudently in renouncing its rights under the Note
without obtaining its own release or waiver from Ortiz but imprudent acts have
consequences under the law. The Bank stated that it “releases and waives . . . all . . .
claims regarding any obligations or liabilities of [Ortiz] in connection with the above-
referenced property, including the note and deed of trust associated with such property.”
The legal consequence of this act is a renunciation of the Bank’s claims under the Note.
This is the only reasonable interpretation of the language. Instead of holding the Bank to
its unambiguous words, the majority finds an ambiguity where none exists and remands
this case for a new trial.
Today’s decision is bad for borrowers and bad for lenders. By stretching and
straining to find that the unambiguous waiver language is ambiguous, the majority not
only contravenes the directives of the Supreme Court of Texas but also creates bad
precedent from this court that will make it more difficult for courts in this jurisdiction to

2
find any waiver language unambiguous.
An unambiguous waiver or release of claims serves a crucial purpose in our
economy. Waivers and releases are utilized to bring an immediate and final end to claims
and related disputes. By giving and receiving unambiguous waivers or releases, parties
can avoid the time, expense, and distraction of protracted litigation.
The ambiguous/unambiguous distinction is significant. Unambiguous provisions
can be enforced by summary judgment; ambiguous ones usually cannot. In many cases,
parties will not settle disputes if there is no reasonable expectation that courts will
enforce a waiver of rights without putting them to the time, expense, and uncertainty of a
full-blown trial. By refusing to hold the Bank to its unambiguous waiver, the majority
reaches the wrong result in this case and devalues all unambiguous waiver language.
Because the waiver language at issue is commonly used to settle claims, today’s decision
that this language is ambiguous will provide any party with waiver’s remorse an arguable
means of avoiding summary judgment. This time it is the Bank trying to avoid its
unambiguous waiver of claims against the borrower; next time, it may be a borrower who
seeks to avoid the unambiguous waiver of lender-liability claims against a bank.
Unambiguous waivers and releases are valued precisely because of the expectation
that courts will enforce them as written in response to a properly filed and presented
summary-judgment motion. When courts fail to do so, parties’ legitimate expectations are
frustrated and the law becomes uncertain and unpredictable. Predictability is beneficial
in the law because it enables parties to evaluate the strength of a proposed written waiver
or release and the likely outcome should the enforceability of the waiver or release
become an issue in court. Knowing how a court interprets standard waiver and release
language is critical to the settlement decision. When parties can trust courts to enforce
unambiguous waivers and releases, they will engage in settlement transactions. Without
that assurance, more often they will not. The citizens of this state are best served by a
jurisprudence that will foster predictability by holding parties to their written word.
Today’s decision undermines the certainty and predictability in the legal
interpretation of unambiguous language under Texas law. The majority has redefined

3
unambiguous language in a way that tends to erode confidence that courts will honor
unambiguous waivers and releases at the summary-judgment stage. Simple issues
previously resolved through summary judgment may have to be determined through trials
to fix the meaning of documents that should be declared clear and unambiguous as a
matter of law. Borrowers who have been released from debt obligations face uncertainty
because what they reasonably believed was an unambiguous renunciation of debt claims
now holds only the hope of enforcement at the end of long and costly litigation. Lenders
and other parties may end up paying twice for the same waiver or release just to avoid the
time, expense, and uncertainty of full-scale trials they already bargained to escape.
Application of longstanding Texas law demonstrates that the waiver language at
issue in this case is susceptible to only one reasonable interpretation. For this reason, the
Bank’s claims under the Note fail as a matter of law.
The trial court granted summary judgment as to the Bank Parties’ claims under the
Note, concluding that these claims were waived or released under section 3.604 of
the Texas Business and Commerce Code.

The trial court granted partial summary judgment in Ortiz’s favor, ordering that
the Bank Parties take nothing on any claim arising from the Note. The trial court based
this summary-judgment ruling upon its conclusion that the claims under the Note were
waived or released under section 3.604 of the Texas Business and Commerce Code. 1
This statute, entitled “Discharge by Cancellation or Renunciation,” provides in pertinent
part as follows:

(a) A person entitled to enforce an instrument, with or without
consideration, may discharge the obligation of a party to pay the
instrument:

(1) by an intentional voluntary act, such as surrender of the instrument to
the party, destruction, mutilation, or cancellation of the instrument,
cancellation or striking out of the party’s signature, or the addition of
words to the instrument indicating discharge; or

1
Unless otherwise stated, all statutory citations in this opinion are to the Texas Business and Commerce
Code.

4
 (2) by agreeing not to sue or otherwise renouncing rights against the
party by a signed record.

Tex. Bus. & Comm. Code Ann. § 3.604(a). Discharge by written renunciation, the type
of waiver addressed in section 3.604(a)(2), has a long pedigree stretching back many
years. See Hall v. Wichita State Bank & Trust Co., 254 S.W. 1036, 1037–39 (Tex. Civ.
App.—Amarillo 1923, writ refused); Bagley v. Kerr, 112 P.2d 459, 464–66 (Or. 1941). It
was imported into the law merchant from French law, and then the British Parliament
adopted it into English law from the law merchant in the Bills of Exchange Act of 1882.
See Hall, 254 S.W. at 1038. Though discharge by written renunciation was generally not
adopted into American common law, the drafters of the American Uniform Negotiable
Instruments Act incorporated it from English law into section 122 of that act, which was
eventually enacted in all American states. See Hall, 254 S.W. at 1038–39; Bagley, 112
P.2d at 465–66. This provision was the basis for the part of the Uniform Commercial
Code currently found in section 3.604(a). Despite having been the law of all American
states for many years, there are not many cases addressing discharge by written
renunciation. See Hall, 254 S.W. at 1037–39; Shaffer v. Akron Products Co., 109 N.E.2d
24, 26 (Ohio Ct. App. 1952); Bagley, 112 P.2d at 464–66. The parties have not cited and
research has not revealed any case in which a court has construed section 3.604(a)(2).
But, there is ample Texas jurisprudence on the law of waiver; renunciation is a species of
waiver.
This court reviews the trial court’s interpretation of applicable statutes de novo.
See Johnson v. City of Fort Worth, 774 S.W.2d 653, 655–56 (Tex. 1989). In interpreting
a statute, this court’s objective is to determine and give effect to the Legislature’s intent.
See Nat’l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex. 2000). If possible,
this court must ascertain that intent from the language the Legislature used in the statute
and not look to extraneous matters for an intent the statute does not state. Id. If the
meaning of the statutory language is unambiguous, the court is to adopt the interpretation
supported by the plain meaning of the provision’s words. St. Luke’s Episcopal Hosp. v.

5
Agbor, 952 S.W.2d 503, 505 (Tex. 1997). This court must yield to the plain sense of the
words the Legislature chose. See id.
Section 3.604(a)(2) is unambiguous. In this section the Legislature provides that a
person entitled to enforce a negotiable instrument may unilaterally and without
consideration discharge the obligation of a party to pay the instrument by agreeing in
writing not to sue the party or by expressly renouncing or waiving the person’s rights
against the party in a writing signed by the person. See Tex. Bus. & Comm. Code Ann.§
3.604(a). See also Hall, 254 S.W. at 1039 (stating that “‘a written renunciation or
discharge of a bill or note or of the liability of any party thereon is now good without
consideration’”) (quoting WILLISTON ON CONTRACTS); Shaffer, 109 N.E.2d at 26 (stating
that “[b]y ‘renunciation’ is meant the gratuitous abandonment or giving up of a right; and
express waiver without consideration”). That is precisely what we have in this case.

The Bank unambiguously waived its rights under the Note by written renunciation,
and the majority errs in concluding that the Letters are ambiguous.

An employee of the Servicer signed one letter on June 27, 2006 (“First Letter”),
and a second letter on July 6, 2006 (“Second Letter”). The summary-judgment evidence
contains the First Letter and the Second Letter (collectively, the “Letters”), both of which
are signed writings. The First Letter states, in pertinent part, as follows:

This Agreement shall confirm that Lender has completed and will
file an Internal Revenue Service Form 1099-A in connection with its
foreclosure on the above-referenced property. As a result, it does not intend
to and shall not file or pursue any lawsuit or other legal proceeding against
Borrower for any deficiency or otherwise. Lender agrees to and does fully
release Borrower from any and all obligations and liability that Borrower
may have or may have had to Lender, and Lender waives any and all
demands and claims regarding any such obligation or liability. It is agreed
that no further sums will be made or owed by Borrower, and no further
sums will be demanded or litigated by Lender.
Under the unambiguous language of the First Letter, the agent who signed this
writing did not sign it on behalf of the Bank. Nonetheless, as discussed below, under the
unambiguous language of the Second Letter the agent who signed the Second Letter

6
signed it on behalf of the Bank, and in the Second Letter, the Bank agreed to all of the
terms of the First Letter. The majority concedes that, at a minimum, the Second Letter
makes all the terms of the First Letter applicable to the Bank.
In the text of the First Letter, the Bank2 stated that, as a result of its foreclosure on
the real property that was the subject of the deed of trust (the “Property”), the Bank did
not intend to and would not “file or pursue any lawsuit or other legal proceeding against
[Ortiz] for any deficiency or otherwise.”3 (emphasis added). The majority concludes that
it is reasonable to construe this text as waiving only the Bank’s claim against Ortiz for the
deficiency remaining after the foreclosure sale. See ante at p. 20. But the words that
follow “deficiency” cannot be treated as though they are invisible; the Bank stated that it
would not file or pursue any lawsuit or legal proceeding against Ortiz “for any deficiency
or otherwise.” This language is plainly cast in the disjunctive and “or otherwise” plainly
entails more than “any deficiency.” To give effect to the “or otherwise” language, one
must interpret the Bank’s waiver to include its deficiency claim as well as all other claims
against Ortiz regarding the Note and the Property. The majority asserts that it is
reasonable to construe this language as waiving only the Bank’s deficiency claim. But
such a construction renders the words “or otherwise” meaningless; therefore, this
construction is unreasonable. See Gilbert Texas Construction, L.P. v. Underwriters at
Lloyd’s London, 327 S.W.3d 118, 133 (Tex. 2010) (concluding contract interpretation
was not reasonable because it would render part of the contract meaningless); Am. Mfrs.
Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 160 (Tex. 2003) (rejecting a contract
construction as unreasonable because it was inconsistent with language in the contract
that was clearly disjunctive); Virginia Power Energy Marketing, Inc. v. Apache Corp.,
297 S.W.3d 397, 403 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) (rejecting

2
For ease of reference, in discussing the First Letter, the “Lender” is referred to as the Bank, even though
the Bank did not become bound by the terms of the First Letter until an agent of the Bank signed the
Second Letter.

3
According to the majority, in the First Letter the Bank “agreed that ‘as a result’ of the foreclosure, it
would not pursue ‘further’ sums from Ortiz.” Ante at p. 20. This statement is not accurate.

7
contract interpretation that would render part of the contract meaningless); Coastal
Terminal Operators v. Essex Crane Rental Corp., No. 14-02-00627-CV, 2004 WL
1795355, at *6 (Tex. App.—Houston [14th Dist.] Aug. 12, 2004, pet. denied)
(concluding contract interpretation was not reasonable because it would render part of the
contract meaningless) (mem. op.). A faithful interpretation under Texas law cannot
render part of the document meaningless.
Because the “as a result” phrase refers to the foreclosure sale, the majority
concludes that it is reasonable to construe this sentence as waiving only the Bank’s claim
against Ortiz for the deficiency remaining after the foreclosure sale. See ante at pp. 19–
20. The majority finds ambiguity because of a perceived conflict between “broad and
sweeping” language in the First Letter and other language in the letter referring to the
foreclosure sale. See id. But the specific reference to the foreclosure sale does not make
it reasonable to construe “for any deficiency or otherwise” to mean “for any deficiency.”
See Memorial Medical Center of East Texas v. Keszler, 943 S.W.2d 433, 434–35 (Tex.
1997) (interpreting two documents that constituted a single agreement and concluding
that, even though the release given by releasor in one part of the agreement was clearly
narrower than the release given by releaser in another part of the agreement, the court
court would still give effect as a matter of law to the unambiguous, broader language);
Sterling Equities, Inc. v. Chubb Custom Ins. Co., 806 F. Supp. 2d 1004, 1007–1010 (S.D.
Tex. 2011) (applying Texas law and holding that broad language of release
unambiguously covered one of the insured’s properties, even though that property was
not specifically mentioned at all in the release and even though three other properties
were specifically mentioned as being the subject of the release). The additional words
the majority ignores add meaning, and it is not reasonable or proper to disregard these
words in construing the First Letter. They are a key and integral part of the operative
language.

In the next sentence of the First Letter, the Bank waives “any and all demands and
claims” regarding “any and all obligations and liability that [Ortiz] may have or may have

8
had to [the Bank].” (emphasis added). Again, the majority concludes it is reasonable to
construe the text of the First Letter as waiving only Ortiz’s obligations and liability under
the then-existing deficiency claim. This construction makes the words “or may have
had” meaningless; therefore, this construction is unreasonable. See Gilbert Texas
Construction, L.P., 327 S.W.3d at 133; Virginia Power Energy Marketing, Inc., 297
S.W.3d at 403; Coastal Terminal Operators, 2004 WL 1795355, at *6. The words “or
may have had” add meaning, and it is not reasonable or proper to ignore these words in
construing the text of the First Letter.

The majority relies upon the word “further” in the following sentence in the First
Letter: “It is agreed that no further sums will be made or owed by Borrower, and no
further sums will be demanded or litigated by Lender.” This language follows a sentence
in which the Bank waives any and all claims regarding Ortiz’s past or present obligations
and liabilities. In this context, the First Letter describes the Bank’s waiver as applying to
all claims regarding all of Ortiz’s past or present obligations and liability, and then the
letter states that no further obligations will accrue or be pursued by the Bank. Even
presuming that this sentence is limited to claims regarding further obligations and
liability, it is not reasonable to construe this sentence as limiting the waiver in the entire
letter to such obligations and liability.

In determining whether the First Letter is ambiguous, the majority relies upon the
summary-judgment standard of review, drawing all inferences in favor of the Bank
Parties because they were non-movants. See ante at p. 20. But, whether the First Letter
is ambiguous is a question of law that this court is supposed to determine de novo. See
Bowden v. Phillips Petroleum Co., 247 S.W.3d 690, 705 (Tex. 2008); Avenell v.
Chrisman Properties, L.L.C., No. 14-08-01180-CV, 2010 WL 1379972, at *2 (Tex.
App.—Houston [14th Dist.] Apr. 8, 2010, no pet.) (mem. op.). Therefore, the majority
does not apply the correct standard of review in reaching its result. See Bowden, 247
S.W.3d at 705; Avenell, 2010 WL 1379972, at *2. An analysis under the proper standard
yields the opposite result.

9
 The majority attaches significance to the fact that the First Letter contains a
reference to the IRS Form 1099-A that the Bank planned to file regarding the June 6,
2006 foreclosure sale. The First Letter contains a confirmation that the Bank has
completed and will file such a form. But the filing of this form does not speak to whether
the Bank waives any or all of its rights against Ortiz under the Note.

Under the unambiguous language of the First Letter, the Bank waived any and all
claims it had against Ortiz regarding any obligations or liabilities under the Note and
renounced in a signed writing the Bank’s rights against Ortiz under the Note. See Tex.
Bus. & Comm. Code Ann. § 3.604(a); Thompson v. Kerr, No. 14-08-00978-CV, 2010
WL 2361636, at *4 (Tex. App.—Houston [14th Dist.] June 15, 2010, no pet.) (holding
trial court properly granted summary judgment because, in a settlement agreement,
plaintiffs unambiguously manifested an intent to waive their rights against the defendant)
(mem. op.); Tran v. Compass Bank, No. 02-11-00189-CV, 2012 WL 117859, at *1–2
(Tex. App.—Fort Worth Jan. 12, 2012, no pet.) (holding that, under broad and
unambiguous provision of guaranty agreement, guarantor waived as a matter of law
statutory right to offset against a deficiency owed following foreclosure on deed-of-trust
lien) (mem. op.); ASI Technologies, Inc. v. Johnson Equipment Co., 75 S.W.3d 545, 547–
49 (Tex. App.—San Antonio 2002, pet. denied) (holding that, under unambiguous
language of settlement agreement, party waived its statutory indemnity rights as a matter
of law); Shaffer, 109 N.E.2d at 26 (stating that “all of the authorities agree that, where
there is an express renunciation in writing of a claim evidenced by a note by the holder
thereof, such instrument is discharged” and holding that writing signed by holder of note
discharged the note by written renunciation); Bagley, 112 P.2d at 466 (holding that
signed writing by holder of promissory note discharged the note by written renunciation).
As a matter of law, under the plain language of the First Letter, the Bank waived and
renounced all claims and demands against Ortiz based upon the Note. Hence, the
summary-judgment evidence proved as a matter of law the Bank’s waiver of its rights
under the Note based upon the First Letter.

10
 In pertinent part, the Second Letter contains the following language:

Thank you for providing a copy of the 1099-A and executing the
letter agreement I sent regarding the above-referenced matter. It has come
to my attention that National City Bank of Indiana was the current
mortgagee and that First Franklin Financial Corporation was the original
mortgagee. The letter agreement did not specifically reference National
City Bank of Indiana.[4]

Out of an abundance of caution, I am requesting that you please
confirm, by signing where indicated below, that all of the terms and
conditions of the June 23, 2006, letter agreement also apply to [the Bank],
as the Lender, and that [the Bank] also releases and waives any and all
actual and potential demands and claims regarding any obligations or
liabilities of the Borrower, Albert Ortiz, in connection with the above-
referenced property, including the note and deed of trust associated with
such property.
Under the unambiguous text of the Second Letter, the Bank confirmed that all of the
terms and conditions of the First Letter applied to the Bank. As discussed above, under
these terms and conditions, the Bank unambiguously waived any and all claims it had
against Ortiz regarding any obligations or liabilities arising from the Note. Under the
unambiguous conjunctive language of the Second Letter, the Bank also confirmed that it
released and waived any and all demands and claims regarding any obligations or
liabilities of Ortiz, in connection with the Property, including the Note and the deed of
trust securing payment of the Note (the “Deed of Trust”). The majority concludes that it
is reasonable to construe the text of the Second Letter as only confirming that the Bank is
bound by the First Letter. See ante at p. 21. But such a construction renders the word
“and” meaningless; so, this construction is unreasonable. See Gilbert Texas
Construction, L.P., 327 S.W.3d at 133; Am. Mfrs. Mut. Ins. Co., 124 S.W.3d at 160;
Virginia Power Energy Marketing, Inc., 297 S.W.3d at 403; Coastal Terminal Operators,
2004 WL 1795355, at *6. Under the only reasonable construction of the Second Letter,
the Bank confirmed two things: “that all of the terms and conditions of the [First Letter]

4
In the first letter, the “Lender” was incorrectly identified as “First Franklin Financial
Corporation/National City Home Loan Services, Inc.”

11
also apply to [the Bank], as the Lender, and that [the Bank] also releases and waives any
and all actual and potential demands and claims regarding any obligations or liabilities of
[Ortiz], in connection with the [Property], including the [Note] and [Deed of Trust].”
(emphasis added). By each of these confirmations, the Bank unambiguously agreed not
to sue Ortiz regarding any obligations or liabilities under the Note and renounced in a
signed writing all of the Bank’s rights against Ortiz under the Note.5 See Tex. Bus. &
Comm. Code Ann. § 3.604(a); Thompson, 2010 WL 2361636, at *4; Tran, 2012 WL
117859, at *1–2; ASI Technologies, Inc., 75 S.W.3d at 547–49; Shaffer, 109 N.E.2d at
26; Bagley, 112 P.2d at 466. The majority’s interpretation is not reasonable under Texas
law.

In support of its conclusion that it is reasonable to construe the Second Letter as
only confirming that the Bank is bound by the First Letter, the majority relies upon the
words “out of an abundance of caution” and “confirm.” But these words do not make it
reasonable to interpret the Second Letter as confirming one matter as opposed to two
matters. Ortiz’s lawyer identified an issue at the beginning of the Second Letter—the
Servicer had signed the First Letter on behalf of the wrong lender. Though addressing
this mistake in the First Letter was clearly a purpose of the Second Letter, the existence
of this purpose does not mean that the Bank cannot confirm two matters under the
unambiguous language of the Second Letter. See Memorial Medical Center of East
Texas, 943 S.W.2d at 434–35 (construing two documents that constituted a single
agreement and concluding that, even though the release given by releasor in one part of
the agreement was clearly narrower than the release given by releaser in another part of
the agreement, the court court would still give effect as a matter of law to the
unambiguous, broader language); Sterling Equities, Inc., 806 F. Supp. 2d at 1007–1010
(applying Texas law and holding that broad language of release unambiguously covered

5
Even presuming for the sake of argument that the First Letter is ambiguous as to whether the Bank
waived all of its rights against Ortiz under the Note, this second confirmation still would constitute an
unambiguous renunciation and waiver by the Bank in a signed writing of the Bank’s rights against Ortiz
under the Note.

12
one of the insured’s properties, even though that property was not specifically mentioned
at all in the release and even though three other properties were specifically mentioned as
being the subject of the release). As a matter of law, under the plain language of the
Second Letter, the Bank waived and renounced all claims and demands against Ortiz
based upon the Note.6 Therefore, the summary-judgment evidence proved as a matter of
law the Bank’s waiver of its rights under the Note based upon the Second Letter.7

The trial court did not err in concluding that, under section 3.604(a), in the Letters,
the Bank unambiguously waived its rights against Ortiz under the Note, without any
consideration.8 See Tex. Bus. & Comm. Code Ann. § 3.604(a); Thompson, 2010 WL
2361636, at *4; Tran, 2012 WL 117859, at *1–2; ASI Technologies, Inc., 75 S.W.3d at
547–49; Shaffer, 109 N.E.2d at 26; Bagley, 112 P.2d at 466. Because the Bank expressly
waived its rights against Ortiz under the Note in both the First Letter and the Second
Letter, the Bank Parties were not entitled to recover on the Note.
There is only one reasonable interpretation of the Letters, and this court should
enforce these documents as written. See Helmerich & Payne Int’l Drilling Co. v. Swift
Energy Co., 180 S.W.3d 635, 646 (Tex. App.—Houston [14th Dist.] 2005, no pet.). This
court should not disregard key words in the Letters or question the wisdom of the Bank’s
execution of them, nor should this court rewrite the provisions of the Letters under the
guise of interpretation. See id. Sometimes parties—even sophisticated ones like banks—
sign unambiguous documents that they later regret having signed. When that happens,

6
The Bank Parties also argue that intent is a fact issue for the jury and not a proper subject of a summary
judgment. But, this court has held that a court should find waiver when, as in this case, a party
unequivocally manifests an intent to no longer assert its rights and that a trial court may grant summary
judgment if such a waiver is proved by the language of an unambiguous writing. See Thompson, 2010
WL 2361636, at *4.
7
The Bank Parties cite three cases that they assert support their position; but these cases are not on point
because they all involve the alleged discharge of a negotiable instrument based upon conduct described in
section 3.604(a)(1) rather than under section 3.604(a)(2).
8
The majority relies upon Burton v. National Bank of Commerce of Dallas. See ante at p. 25 (relying
upon Burton v. National Bank of Commerce of Dallas, 679 S.W.2d 115 (Tex. App.—Dallas 1984, no
writ). In this case, the waiver was based upon oral statements, not upon any writing, as in the case under
review. See Burton, 679 S.W.2d at 116–18. See id. The Burton case is not on point.

13
the answer is not to make clear things cloudy or to strain to find fact issues that will spoil
a summary judgment and thereby give the hope of a better outcome in a jury trial. It is
this court’s duty to enforce clear waiver language as written. Doing so not only honors
the parties’ intentions as expressed in unambiguous writings but, even more importantly,
it strengthens crucial rule-of-law values that are so vital to the health of our system of
justice.
The Bank unequivocally waived its claims under the Note and it should be held to
its waiver. This court should affirm the trial court’s June 2010 partial summary judgment
that the Bank Parties take nothing on any claim arising from the Note (the “Partial
Summary Judgment”).
The trial court did not err in impliedly granting the borrower’s motion to disregard
the jury’s finding in response to Question 6.

The Bank Parties also argue that the trial court erred by impliedly granting Ortiz’s
motion to disregard the jury’s finding in response to Question 6. In this finding the jury
answered “no” to the following question, which was submitted without any
accompanying instructions:

With respect to the Letter Agreements, did [the Servicer] or [the Bank]
validly agree that Albert Ortiz would receive ownership and possession of
the [Property] without obligation for further payments on the Note, and that
[the Servicer] and [the Bank] would not pursue any claims, lawsuits and/or
obligations that they could have asserted against Albert Ortiz?

A trial court may disregard a jury finding if it is unsupported by evidence or if the
question is immaterial. See Spencer v. Eagle Star Ins. Co. of America, 876 S.W.2d 154,
157 (Tex. 1994). A question is immaterial when it should not have been submitted, when
it calls for a finding beyond the province of the jury, such as a question of law, or when it
was properly submitted but has been rendered immaterial by other findings. Id.

The trial court submitted Question 6 over Ortiz’s objection that this question does
not track the wording of the Letters. Ortiz’s counsel pointed out that the Letters were
signed after the foreclosure sale had occurred and before the trial court set it aside. Ortiz

14
objected to the language in this question about Ortiz receiving ownership and possession
of the Property because the Letters contain no such language. Ortiz’s objections were
valid. The Letters were signed within one month of the foreclosure sale and more than
two years before the trial court granted summary judgment on Ortiz’s wrongful-
foreclosure claim, set aside the trustee’s deed, and restored title in the Property to Ortiz.
When the Letters were signed, the Bank held title to the Property, and the Letters do not
mention any agreement that Ortiz would receive ownership and possession of the
Property. The Letters address an express waiver of the Bank’s rights under the Note and
Deed of Trust, but they do not purport to memorialize an agreement that Ortiz would
receive ownership and possession. Neither Ortiz nor the Bank Parties asserted that the
Letters were an agreement to convey ownership and possession of the Property to Ortiz.
Title and right to possession of the Property were conveyed to Ortiz when the trial court
ruled in his favor on his wrongful-foreclosure claim, and the Bank Parties have not
challenged this trial court ruling on appeal.

In addition, in Question 6, the trial court asked the jury to determine whether the
Letters contain a “valid” agreement between Ortiz and the Bank or the Servicer. This
question calls for a jury finding as to a question of law, which is beyond the province of
the jury. See Forest Oil Corp. v. McAllen, 268 S.W.3d 51, 55 n.9 (Tex. 2008) (noting
that the determination of an agreement’s validity is a legal question); J.M. Davidson, Inc.
v. Webster, 128 S.W.3d 223, 227 (Tex. 2003) (same); In re Guggenheim Corporate
Funding, LLC, No. 14-12-00329-CV, —S.W.3d—,—, 2012 WL 3939857, at *6 (Tex.
App.—Houston [14th Dist.] Sep. 11, 2012, orig. proceeding) (same). For this additional
reason, the question was immaterial.

In sum, Question 6 was immaterial both because it should not have been submitted
and because it calls for a legal determination, which is beyond the province of the jury.
See Ulico Cas. Co. v. Allied Pilots Ass’n, 262 S.W.3d 773, 787 (Tex. 2008); National
Plan Adm’rs v. National Health Ins. Co., 235 S.W.3d 695, 703–04 (Tex. 2007).
Accordingly, the trial court did not err by impliedly granting Ortiz’s motion to disregard

15
the jury’s finding in response to this question. See Ulico Cas. Co., 262 S.W.3d at 787;
National Plan Adm’rs, 235 S.W.3d at 703–04.

The trial court did not seek “to partially correct” an error in the Partial Summary
Judgment by submitting Question 6 to the jury.

According to the majority, after granting the Partial Summary Judgment based
upon the conclusion that the Letters were unambiguous, the trial court (1) realized it had
erred in reaching this conclusion, (2) set aside the Partial Summary Judgment, (3) sought
to “partially correct this error” by submitting Question 6 to the jury, and (4) changed its
ruling yet again after trial by reinstating the Partial Summary Judgment in the final
judgment. See ante at pp. 22–23. No oral or written rulings or actions of the trial court
support such findings.

The record does not reflect that the trial court set aside or vacated the Partial
Summary Judgment. Nor does the record reflect that the trial court determined it had
erred in granting the Partial Summary Judgment and sought to “partially correct this
error” by submitting Question 6 to the jury. Nor does the record show that the trial court
reinstated its Partial Summary Judgment. The unambiguous language of the Partial
Summary Judgment and of the trial court’s final judgment, and a careful review of the
entire record, show that the trial court never set aside or modified the Partial Summary
Judgment. Instead, the trial court incorporated the Partial Summary Judgment unchanged
into the final judgment, without having ever set aside the Partial Summary Judgment.

The majority infers that the trial court took these purported actions based upon the
majority’s conclusion that the trial court submitted the interpretation of the Letters to the
jury in Question 6. See ante at pp. 22–23. The majority cites a case for the proposition
that a trial court’s ruling that the interpretation of a contract should be submitted to the
jury is an implicit holding that the contract is ambiguous. See id. (citing Bowden v.
Phillips Petroleum Co., 247 S.W.3d 690, 705 (Tex. 2008)). But, notably, the trial court
did not submit the interpretation of the Letters to the jury in Question 6. In that question,
the trial court did not instruct the jury that it was the jury’s duty to interpret any part of
16
the Letters. Nor did the trial court instruct the jury to decide the meaning of the Letters
by determining the mutual intent of Ortiz and the Bank Parties when the Letters were
signed. Instead, the trial court asked the jury whether the parties validly entered into an
agreement that no party asserted had been made and of which there was no evidence.9
Unsurprisingly, the jury did not find that the parties had validly entered into this
agreement. The trial court did not submit the interpretation of the Letters to the jury in
Question 6. Therefore, the premise underlying the majority’s conclusion is fundamentally
flawed. The trial court did not set aside the Partial Summary Judgment, nor did the trial
court try to “partially correct” any alleged error in the Partial Summary Judgment by
submitting Question 6 to the jury.
The trial court granted summary judgment based upon a ground expressly stated in
Ortiz’s summary-judgment motion.

Under their first issue, the Bank Parties argue that, in response to the Bank Parties’
assertion that the Letters were not supported by consideration, the only issue properly
raised by Ortiz was that the Letters did not require consideration because the Letters are
waivers. The Bank Parties assert that the trial court erred by granting partial summary
judgment in Ortiz’s favor based upon section 3.604, which the Bank Parties assert is a
ground not stated in Ortiz’s summary-judgment motion.
The Bank Parties are correct that Ortiz did not cite section 3.604 in his summary-
judgment motion or response to the Bank Parties’ motion. Ortiz’s counsel first cited this
statute to the trial court during oral argument on the summary-judgment motion, and then
addressed section 3.604 further in supplemental briefing to the trial court. This court
cannot affirm a summary judgment on a ground not stated in the summary-judgment
motion. See Stiles v. Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex. 1993). But, in
evaluating what grounds were raised in a summary-judgment motion, this court must

9
The majority states that, in response to Question 6, “the jury found that in executing the Letter
Agreements, the Bank Parties did not agree to release Ortiz from any further obligation to make payments
on the Note if he received ownership and possession of the [Property].” Ante at p. 23. This statement is
inaccurate because this is not the finding that the jury was asked to make in Question 6.

17
remember that summary-judgment grounds may be stated concisely, without detail and
argument. See Allen v. City of Baytown, No. 01-09-00914-CV, 2011 WL 3820963, at *7
(Tex. App.—Houston [1st Dist.] Aug. 25, 2011, no pet.) (holding that traditional
summary-judgment ground may be raised in a footnote that concisely states the ground
without any argument or citation to legal authorities) (mem. op.); Coleman v. Revak, No.
01-07-00438-CV, 2008 WL 2466276, at *2 (Tex. App.—Houston [1st Dist.] June 19,
2008, no pet.) (stating that traditional summary-judgment ground may be raised by
merely identifying a theory of liability or defense) (mem. op.); Conquistador Petroleum,
Inc. v. Chatham, 899 S.W.2d 439, 441–42 (Tex. App.—Eastland 1995, writ denied)
(holding that the following sentence, which lacked any citation to legal authority, was
sufficient to expressly state a summary-judgment ground: “[defendant] moves for
summary judgment against [plaintiff] on the affirmative defense of unenforceability
pursuant to the Rule against Perpetuities.”). See also McConnell v. Southside
Independent School District, 858 S.W.2d 337, 340 (Tex. 1993) (stating in plurality
opinion that summary-judgment grounds may be stated in the motion concisely, without
detail or argument). Thus, as a threshold matter, this court must determine whether, in
his summary-judgment motion, Ortiz expressly identified a ground that was the basis of
the trial court’s partial summary judgment.

In the summary-judgment motion that was granted in part by the trial court in the
Partial Summary Judgment, Ortiz asserted that he is entitled to judgment as a matter of
law as to the Bank Parties’ claims on the Note because, under the plain language of the
Letters, the Bank Parties “expressly renounced any and all further rights to assert claims
against Ortiz.” Courts analyzing a predecessor statute to section 3.604(a)(2) have
concluded that, if the holder of a promissory note signs a writing in which the holder
expressly renounces any claim on the note, this action is sufficient to discharge the note.
See Hall, 254 S.W. at 1037–39; Shaffer, 109 N.E.2d at 26; Bagley, 112 P.2d at 464–66.
Under the unambiguous language of section 3.604(a), the Bank, without consideration,
may discharge the obligation of Ortiz to pay the Note “by agreeing not to sue or

18
otherwise renouncing rights against [Ortiz] by a signed record.” Tex. Bus. & Comm.
Code Ann. § 3.604(a). In his motion, Ortiz also asserted that, in the Letters, the Bank
Parties expressly waived all demands and claims regarding any obligations or liabilities
of Ortiz on the Note. In his summary-judgment motion, Ortiz expressly identified a
defensive theory that the Bank Parties waived their claims based upon the Note by
signing the Letters, writings in which the Bank Parties expressly renounced their rights
against Ortiz on the Note. See Coleman, 2008 WL 2466276, at *2. Significantly, Ortiz
did not limit this summary-judgment ground to common-law waiver. Though Ortiz
stated this ground concisely and without argument or citation to section 3.604, he
sufficiently raised this ground in his motion.10 See Allen, 2011 WL 3820963, at *7;
Coleman, 2008 WL 2466276, at *2; Conquistador Petroleum, Inc., 899 S.W.2d at 441–
42. The majority’s narrow reading of the grounds stated in the motion elevates form over
substance and ignores both the concept and the legal principles embodied in the motion
based upon the express waiver of rights by the Bank. In granting partial summary
judgment on this ground, the trial court did not grant summary judgment on a ground not
expressly stated in Ortiz’s summary-judgment motion.

Because all of the arguments asserted by the Bank Parties under their first issue
lack merit, this court should overrule this issue. The court correctly sustains the Bank
Parties’ second issue and Ortiz’s second cross-issue. Thus, this court should modify the
trial court’s judgment (1) to delete any monetary recovery in favor of Ortiz and against
the Bank, and (2) to award actual damages to Ortiz and against the Servicer in the amount
of $74,500 rather than in the amount of $10,000. After modifying the trial court’s

10
When the Letters were signed, Ortiz’s suit to enjoin the foreclosure sale was still pending, though the
foreclosure sale already had occurred and Ortiz later dismissed this suit. There is no evidence that the
Bank had filed any counterclaims in this suit when the Letters were signed. The majority asserts that,
even though Ortiz asserted waiver as a summary-judgment ground, “the parties were already in litigation
with one another [when the Letters were signed]; thus, Ortiz was asking the trial court, in effect, to treat
the [Letters] as releases.” Ante at p. 16. None of the cases cited by the majority support its assertion that
a party in litigation cannot waive or renounce its rights against another party in the litigation but must
release its rights. And, this proposition is contrary to the unambiguous language of section 3.604 and
Texas cases. See Tex. Bus. & Comm. Code Ann. § 3.604; ASI Technologies, Inc., 75 S.W.3d at 547–49.

19
judgment in this way, this court should affirm the judgment.

MANDAMUS

The Bank Parties assert judicial-foreclosure claims against Ortiz. On June 14,
2010, the trial court rendered an interlocutory take-nothing judgment against the Bank
Parties on their claims arising from the Note secured by the deed-of-trust lien that
provides the basis of the judicial-foreclosure claims. The parties’ other claims proceeded
to trial. After the jury’s verdict, but before the trial court signed a judgment, the Bank
Parties filed a notice of lis pendens regarding the Property, based upon the judicial-
foreclosure claims. Shortly thereafter, Ortiz filed a motion to expunge the notice of lis
pendens under Texas Property Code section 12.0071, a statute enacted by the Texas
Legislature in 2009. See Act of May 21, 2009, 81st Leg., R.S., ch. 297, 2009 Tex. Gen.
Laws 806, 806 (codified at Tex. Prop. Code Ann. § 12.0071 (West 2012)). On the same
day that it signed the final judgment ordering that the Bank Parties take nothing on their
judicial-foreclosure claims, the trial court signed an order denying Ortiz’s motion to
expunge.

Ortiz then filed a petition for writ of mandamus in this court, asserting that the trial
court abused its discretion by denying Ortiz’s motion to expunge and by impliedly
finding that the Bank Parties established by a preponderance of the evidence the probable
validity of their judicial-foreclosure claims. This court requested a response from the
Bank Parties, but, to date, they have not filed one.

A writ of mandamus generally will issue to correct a clear abuse of discretion
when there is no adequate remedy at law. See Walker v. Packer, 827 S.W.2d 833, 839
(Tex. 1992) (orig. proceeding). But, if a trial court abuses its discretion by failing to
cancel or expunge a notice of lis pendens, mandamus relief is available without any need
to show that there is no adequate remedy at law.11 See Flores v. Haberman, 915 S.W.2d

11
Thus, the only issue in the mandamus proceeding is whether the trial court abused its discretion by
denying Ortiz’s motion to expunge. See Flores v. Haberman , 915 S.W.2d 477, 478 (Tex. 1995) (per
curiam). The majority relies upon the harmless-error rule applicable in civil appeals, but that rule applies
20
477, 478 (Tex. 1995) (per curiam). A trial court clearly abuses its discretion if it reaches
a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of
law. See Walker, 827 S.W.2d at 839. With respect to the resolution of factual issues, this
court may not substitute its judgment for that of the trial court, even if this court would
have decided the issue differently. Id. at 839-40. Instead, this court may not overturn
the trial court’s decision on factual issues unless the trial court reasonably could have
reached only the opposite decision. See id. at 840. With respect to the resolution of legal
issues, however, the review is much less deferential. Id. The trial court has no discretion
in determining what the law is or in applying the law to the facts. Id. Therefore, a clear
failure by the trial court to analyze or apply the law correctly constitutes an abuse of
discretion. Id.

Texas Property Code section 12.0071, entitled “Motion to Expunge Lis Pendens,”
provides in pertinent part as follows:

(a) A party to an action in connection with which a notice of lis pendens
has been filed may:

(1) apply to the court to expunge the notice; and

(2) file evidence, including declarations, with the motion to expunge the
notice.

(b) The court may:

(1) permit evidence on the motion to be received in the form of oral
testimony; and

(2) make any orders the court considers just to provide for discovery by a
party affected by the motion.

only in civil appeals, not in mandamus proceedings. See Tex. R. App. 44.1 (a)(1) (stating that “[n]o
judgment may be reversed on appeal on the ground that the trial court made an error of law unless the
court of appeals concludes that the error complained of . . . .”) (emphasis added); London v. London, 342
S.W.3d 768, 776 (Tex. App.—Houston [14th Dist.] 2011, no pet.).

21
 (c) The court shall order the notice of lis pendens expunged if the court
determines that:

(1) the pleading on which the notice is based does not contain a real
property claim;

(2) the claimant fails to establish by a preponderance of the evidence the
probable validity of the real property claim; or

(3) the person who filed the notice for record did not serve a copy of the
notice on each party entitled to a copy under Section 12.007(d).
...
(e) The court shall rule on the motion for expunction based on the affidavits
and counteraffidavits on file and on any other proof the court allows.

Tex. Prop. Code Ann. § 12.0071. Research reveals only one case in which the court
interprets Property Code section 12.0071. See In re Cohen, 340 S.W.3d 889 (Tex.
App.—Houston [1st Dist.] 2011, orig. proceeding). That case, however, deals with
subsection (c)(1) of the statute rather than subsection (c)(2), which is at issue in the
mandamus petition before the court today. See id. The parties have not cited and
research has not revealed any case in which a court has construed or applied subsection
(c)(2), and its interpretation appears to be an issue of first impression.
Under its plain meaning, this subsection marks a substantial change in the legal
standard by which parties can seek expunction of notices of lis pendens. See Tex. Prop.
Code Ann. § 12.0071(c). Before enactment of Property Code section 12.0071, a party
seeking cancellation or expunction of a lis pendens notice had to show that the party
filing the notice (the claimant) did not have pending claims that fell into one of the
categories of claims contained in Property Code section 12.007(a). See Tex. Prop. Code
Ann. § 12.007(a) (West 2012). This inquiry focused on the nature of the claims asserted
and not on the merits or likelihood that the claims would be prosecuted successfully. See
id.; In re Collins, 172 S.3d 287, 293–94 (Tex. App.—Fort Worth 2005, orig. proceeding).
In enacting the new statute, the Legislature made a fundamental change by including
language that requires consideration of the merits of the claim that forms the basis of the

22
lis pendens. Under the plain meaning of Property Code section 12.0071, the trial court
must grant a motion for expunction of a lis pendens notice if “the claimant fails to
establish by a preponderance of the evidence the probable validity of the real property
claim.” Tex. Prop. Code Ann. § 12.0071(c)(2); In re Cohen, 340 S.W.3d at 892. The new
statute allows for discovery and evidentiary hearings regarding the evidence necessary to
meet the claimant’s burden of proof. See Tex. Prop. Code Ann. § 12.0071(b).

The language of Property Code section 12.0071(c) is substantially similar to
language in California statutes. Compare Tex. Prop. Code Ann. § 12.0071(c), with Cal.
Civ. P. Code § 405.31 (West 2012) (stating that “the court shall order the notice
expunged if the court finds that the pleading on which the notice is based does not
contain a real property claim”); id. § 405.32 (West 2012) (stating that “the court shall
order that the notice be expunged if the court finds that the claimant has not established
by a preponderance of the evidence the probable validity of the real property claim”). In
the Texas statute, “probable validity” is not defined, but in the California statute,
“‘[p]robable validity,’ with respect to a real property claim, means that it is more likely
than not that the claimant will obtain a judgment against the defendant on the claim.” Cal.
Civ. P. Code § 405.3 (West 2012).

The majority acknowledges that, in responding to Ortiz’s motion to expunge, the
Bank Parties had the burden of establishing by a preponderance of evidence the probable
validity of their judicial-foreclosure claims. See ante at p. 31. But, instead of reviewing
the Bank Parties’ response in the trial court to determine whether the trial court abused its
discretion in concluding that the Bank Parties satisfied this burden, the majority
summarily concludes that the trial court did not abuse its discretion because this court is
reversing the trial court’s judgment on appeal. See id. In doing so, the majority fails to
follow a fundamental rule of appellate practice which requires this court to review the
trial court’s ruling based upon the materials before the trial court when the trial court
made the ruling at issue and not based upon other materials or upon events occurring
after the trial court’s ruling. See In re Bristol-Myers Squibb Co., 975 S.W.2d 601, 605

23
(Tex. 1998) (noting that courts determine whether to grant mandamus relief based upon
the record that was before the trial court when it made the ruling at issue); Axelson, Inc.
v. McIlhany, 798 S.W.2d 550, 556 n.9 (Tex. 1990) (stating that, in determining whether
the trial court abused its discretion such that mandamus should issue, appellate courts do
not consider evidence and subsequent events that were not before the trial court when it
ruled); Univ. of Tex. v. Morris, 344 S.W.2d 426, 429 (Tex. 1961) (holding that appellate
court, in determining correctness of a trial court ruling, does not consider events that
occurred subsequent to the ruling unless they deprive the appellate court of jurisdiction);
Stephens County v. J.N. McCammon, Inc., 52 S.W.2d 53, 55 (Tex 1932) (stating that
“[w]hen an appellate court is called upon to revise the ruling of a trial court, it must do so
upon the record before that court when such ruling was made”); Keck v. First City Nat.
Bank of Houston, 731 S.W.2d 699, 700 (Tex. App.—Houston [14th Dist.] 1987, no writ)
(concluding that, in reviewing a trial court ruling, it is improper for an appellate court to
consider pleadings, actions by the parties, or actions by other courts taking place after the
trial court rendered the ruling at issue, unless the subsequent matters deprive the appellate
court of jurisdiction). Thus, in a mandamus proceeding such as this, in which subsequent
matters (such as this court’s opinion and judgment) do not deprive this court of
jurisdiction, this court’s review should focus on the state of affairs in the trial court at the
time of the ruling.

This court’s opinion and appellate judgment in the case under review occurred
after the trial court’s denial of Ortiz’s motion to expunge and were not before the trial
court when it ruled. Accordingly, this court’s opinion and judgment should not be
considered in determining whether the trial court abused its discretion by concluding that
the Bank Parties established by a preponderance of evidence the probable validity of their
judicial-foreclosure claims. The majority incorrectly makes this determination based
upon the outcome of the appeal rather than upon Ortiz’s motion to expunge and the Bank
Parties’ response. In Property Code section 12.0071, the Legislature has provided that
the trial court must grant a motion for expunction of a lis pendens notice if “the claimant

24
fails to establish by a preponderance of the evidence the probable validity of the real
property claim.” Tex. Prop. Code Ann. § 12.0071(c)(2); In re Cohen, 340 S.W.3d at 892.
The Legislature has not provided an exception to this rule if an intermediate court of
appeals reverses the trial court’s take-nothing judgment on the real property claim and
remands for a new trial.
CONCLUSION
Words matter. Borrowers and lenders and other parties who seek to resolve
disputes through waiver of claims want to use language that a court will enforce as
unambiguous without the time, expense, and uncertainty of trial. If lenders are permitted
to avoid summary judgment and pursue collection actions on unambiguously waived debt
claims, waivers will hold little value for borrowers. Likewise, if courts applying the
same interpretive principles do not grant summary judgment on unambiguous waivers of
lender-liability claims, lenders will lose the ability to reliably settle those claims.
The language the majority finds ambiguous today is garden-variety waiver and
release language, the sort used every day to settle disputes. Today’s decision diminishes
the chance for prompt enforcement of such unambiguous language through summary
judgment, a development that will tend to lower the value and utility of the unambiguous
waiver and release in the public square. Instead of finding this waiver language
ambiguous and sending the parties back to the trial court, this court should enforce the
unambiguous language of the Letters as written. By refusing to do so, the majority adds
uncertainty and unpredictability to the law. The better course would be to hold the Bank
to its unambiguous written word and thereby advance a jurisprudence that would foster a
more predictable legal environment, reduce unnecessary litigation, and honor rule-of-law
values that make our justice system strong.

/s/ Kem Thompson Frost
Justice

Panel consists of Justices Frost, Brown, and Christopher. (Christoper, J., majority).

25