WAIVER AS A DEFENSE TO ENFORCEMENT OF OTHER PARTY'S ASSERTED RIGHT
"The elements of waiver include (1) an existing right, benefit, or advantage held by a party; (2) the party's actual knowledge of its existence; and (3) the party's actual intent to relinquish the right, or intentional conduct inconsistent with the right." Ulico Cas. Co. v. Allied Pilots Ass'n, 262 S.W.3d 773, 778 (Tex. 2008). "Waiver is ordinarily a question of fact." Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 643 (Tex. 1996). "Where the facts and circumstances are admitted or clearly established, however, the question becomes one of law." Id.
SOURCE: HOUSTON COURT OF APPEALS - No. 01-11-00800-CV – 2/28/2013