Texas Causes of Action & Affirmative Defenses

Texas Causes of Action & Affirmative Defenses

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Sunday, September 13, 2009

Waiver Defense Can Be Waived (Non-Waiver Clause in Contract or Settlement Agreement)


HOW DOES THE LAW DEFINE THE AFFIRMATIVE DEFENSE OF WAIVER?

Waiver is an intentional relinquishment of a known right. Straus v. Kirby Court Corp., 909 S.W.2d 105, 109 (Tex. App.-Houston [14th Dist.] 1995, writ denied).

NON-WAIVER CLAUSE IN CONTRACT MAY PRECLUDE WAIVER DEFENSE

 Creech's entire argument is based on Christian's ultimate acceptance of Creech's untimely or replacement payments. But the parties' Agreement contains a non-waiver clause; Christian hired an attorney, and the attorney unequivocally demanded the entire amount due as a result of the default; and there is no evidence in the record that Christian intended to accept a lesser amount than what he had demanded. [...] We will not construe Christian's efforts to collect past-due amounts as a waiver of his right to a full recovery. We overrule Creech's second issue as well.

SOURCE: DALLAS COURT OF APPALS - 05-08-00952-CV