Waiver as a Defense or Counterdefense: When does it apply? When not?

WAIVER AS AN AFFIRMATIVE DEFENSE OR COUNTERDEFENSE

What is waiver, legally speaking, in the context of litigation?

WAIVER DEFENSE DEFINED

“Waiver is the intentional relinquishment of a right actually known, or intentional conduct inconsistent with claiming that right.” Ulico Cas. Co. v. Allied Pilots Ass’n, 262 S.W.3d 773, 778 (Tex. 2008).

ELEMENTS OF WAIVER INCLUDE BEING AWARE OF WHAT IS BEING WAIVED

The elements of waiver are: (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 held or intentional conduct that is inconsistent with the right. Id.

SOURCE: HOUSTON COURT OF APPEALS - 01-12-00168-CV – 2/27/2014

 

 

Waiver of rights as a defense

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

Contractual rights may be waived and thereby become unenforceable

WAIVER OF CONTRACT RIGHT


A party may waive a contractual right, and waiver can be asserted as an affirmative defense against a party seeking to enforce a contractual right after the party intentionally relinquished the right or engaged in conduct inconsistent with enforcement of the right. Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 643 (Tex. 1996).

SOURCE: Houston Court of Appeals - 01-10-00146-CV - 6/30/11

RELATED LEGAL TERMS: contract defenses, affirmative defenses to enforcement of contract, estoppel

Waiver as an affirmative defense to lawsuits in Texas

 
WAIVER AS BAR TO CLAIM: MUST BE PLEADED AS AFFIRMATIVE DEFENSE
  
Waiver is an affirmative defense to a contract claim. See Tex. R. Civ. P. 94. In order to rely on the affirmative defense, a defendant must plead, prove, and secure findings to sustain the defense. Woods v. William H. Mercer, Inc., 769 S.W.2d 515, 517 (Tex. 1988).

The record does not reflect that AMS requested a jury question on the defense it now seeks to assert. By failing to do so, it has not preserved its argument for appellate review. See Tex. R. App. P. 33.1(a); Rivas v. Cantu, 37 S.W.3d 101, 116-17 (Tex. App.—Corpus Christi 2000, pet. denied) (holding defendant failed to preserve statute of frauds defense by, inter alia, failing to request jury charge or object to absence of charge issue); Abraxas Petrolrolium Corp. v. Hornburg, 20 S.W.3d 741, 763 (Tex. App.—El Paso 2000, no pet.) (holding defendant waived estoppel and waiver defenses by failing to submit a jury question).

SOURCE: Houston Court of Appeals 01-09-00360-CV 4/28/11

LEGAL TERMS: defense of waiver, release, estoppel

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