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

D I S S E N T I N G O P I N I O N

I respectfully dissent.
2

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 abovereferenced 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 
3

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 
4

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.
5

(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. 
6

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 
7

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 Bank2stated 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.
8

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 
9

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.
10

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. 
11

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 abovereferenced 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.” 
12

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.
13

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.
14

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 
15

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 wrongfulforeclosure 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 
16

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 
17

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 summaryjudgment 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.
18

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 
19

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.
20

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 judicialforeclosure 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 
21

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.).
22

(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 
23

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 
24

(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 
25

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).