Bonnie Sue Roberts in Her Capacity as Independent of the Estate of Charlotte Roberts v. Wells Fargo Bank, N.A., 406 S.W.3d 702

In 1992 Charlotte Roberts obtained a mortgage on a home secured by a deed of trust; Wells Fargo later became the loan servicer and mortgagee.
Charlotte became disabled; she died in May 2009 and appellant Bonnie Sue Roberts (executrix) inherited the property.
Roberts defaulted on the mortgage and could not refinance or make payments after Sept. 2009.
In Sept./Oct. 2010 Roberts submitted an insurance check for hail damage to Wells Fargo after being told proceeds would be disbursed to a roofer; Wells Fargo instead held the funds and applied them to the delinquent mortgage.
Roberts sued Wells Fargo for conversion, breach of contract, and fraud (among other claims). Wells Fargo moved for partial summary judgment on the claims related to the insurance proceeds.
The trial court issued a letter on Oct. 13, 2011 announcing partial summary judgment in Wells Fargo’s favor; Roberts filed a nonsuit the next morning. The court later dismissed the summary-judgmented claims with prejudice and affirmed those dismissals on appeal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court’s Oct. 13 letter constituted rendition of partial summary judgment, preventing Roberts’ subsequent nonsuit from divesting that ruling	Roberts: the letter wasn’t a judicial pronouncement under Hyundai/Hyundai-related authority and wasn’t filed before her nonsuit, so no rendition occurred	Wells Fargo: the court officially announced its decision by memorandum (the letter), which constitutes rendition when publicly announced and filed; summary-judgmented claims were therefore final before nonsuit	Court: letter constituted rendition (memorandum announced Oct. 13 and filed Oct. 14); nonsuit filed after rendition did not avoid dismissal with prejudice — Issue overruled
Whether a genuine issue of material fact existed about Wells Fargo’s timeliness in electing to apply insurance proceeds to the loan rather than to repairs under the deed of trust	Roberts: Wells Fargo equivocated and did not timely make a single election; follow-up letters about repairs show lack of timely election, precluding summary judgment	Wells Fargo: deed of trust granted an option to apply proceeds to indebtedness; it timely elected (within days) to hold/apply proceeds because loan was delinquent and foreclosure procedures applied	Court: no genuine issue of material fact; Wells Fargo’s election within days was timely and contractually authorized application of proceeds to debt — Issue overruled

Hyundai Motor Co. v. Alvarado, 892 S.W.2d 853 (Tex. 1995) (nonsuit does not defeat adverse party’s right to have pending claims for affirmative relief heard; effect of nonsuit after unfavorable ruling)
Garza v. Texas Alcoholic Beverage Commission, 89 S.W.3d 1 (Tex. 2002) (judgment is rendered when announced in open court or by memorandum filed with clerk)
Via Net v. TIG Insurance Co., 211 S.W.3d 310 (Tex. 2006) (unpleaded claims first raised in summary-judgment response can be tried by consent if movant does not object)
Epps v. Fowler, 351 S.W.3d 862 (Tex. 2011) (Rule 162 nonsuit principles; effect of nonsuit on pending claims for affirmative relief)
Statewide Bank v. SN Servicing Corp. v. Keith, 301 S.W.3d 776 (Tex. App. Beaumont 2009) (mortgagee’s multi-month delay can be untimely election under deed of trust)
English v. Fischer, 660 S.W.2d 521 (Tex. 1983) (deed of trust provision permitting mortgagee to apply insurance proceeds to indebtedness is enforceable)
Lewis v. Wells Fargo Home Mortgage, Inc., 248 S.W.3d 828 (Tex. App. Texarkana 2008) (mortgagee’s contractual election to apply proceeds to debt is permissible and not subject to court reallocation)
Zidell v. John Hancock Mutual Life Insurance Co., 539 S.W.2d 162 (Tex. Civ. App. Dallas 1976) (upholding mortgagee’s right to apply insurance proceeds to debt under contract)