affirmative defenses waiver in Texas

2018And in that event, under Delaware law, the affirmative defenses of waiver and accord and satisfaction raised here would likely require inquiries at trial as to individual stockholders’ intent when tendering or selling some or all of their shares, which could potentially turn on a determination of the number of shares that 11 each individual stockholder tendered as opposed to retained or sold on the open market throughout the applicable period.1 See Amirsaleh, 27 A.3d at 529–30 (noting that party’s intent to waive known right is element of waiver); CitiSteel USA, 758 A.2d at 931 (noting that pa

2018And in that event, under Delaware law, the affirmative defenses of waiver and accord and satisfaction raised here would likely require inquiries at trial as to individual stockholders’ intent when tendering or selling some or all of their shares, which could potentially turn on a determination of the number of shares that each individual 14 stockholder tendered as opposed to retained or sold on the open market throughout the applicable period.1 See Amirsaleh, 27 A.3d at 529–30 (noting that party’s intent to waive known right is element of waiver); CitiSteel USA, 758 A.2d at 931 (noting that pa

2010See BMC Software Belg., N.V., 83 S.W.3d at 794 ; Lara, 267 S.W.3d at 226 ; see also Ventura, 102 S.W.3d at 257 .

2010See BMC Software Belg., N.V. , 83 S.W.3d at 794 ; Lara , 267 S.W.3d at 226 ; see also Ventura , 102 S.W.3d at 257 .

2022Accordingly, we find the arguments were sufficiently stated to fairly apprise Appellees and the trial court of the affirmative defenses of waiver and changed conditions. 3 Appellants did not waive the right to present these issues on appeal. 3 Texas courts have recognized since Cowling v. Colligan, 312 S.W.2d 943 (Tex. 1958) that, “in the context of restrictive covenants, the concepts of abandonment and waiver go hand in hand.” Musgrove v. Westridge St.

2016To establish that C & M had waived its rights under the leases, Thomas had the burden of proving (1) “an existing right, benefit, or advantage held by a party” (here, C & M); (2) “the party’s actual or constructive knowledge of its existence”; and (3) “the party’s actual intent to relinquish,” or intentional conduct inconsistent with, the right.6 To establish 6 See Perry Homes v. Cull, 258 S.W.3d 580 , 602–03 (Tex. 2008); see also Tenneco Inc. v. Enterprise Prods.

2015Vastine v. Bank of Dallas, 808 S.W.2d 463 , 464–65 (Tex. 1991) (per curiam); Futerfas Family Partners v. Griffin, 3 In his amended answer, Newman also asserted the affirmative defenses of waiver and release, modification of obligation, payment, equitable estoppel, quasi-estoppel, failure of consideration, fraud, failure to mitigate, discharge, accord and satisfaction, impairment of subrogation, impairment of collateral, and voidable contract. 4 In the conclusion and prayer of his response, Newman asserted that Firstmark had “refuse[d] to allow him time to investigate . . .[and] develop [his af

2014Waiver is an “ ‘intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right.’ ” Moayedi v. Interstate 35/Chisam Rd., L.P., 438 S.W.3d 1 (Tex.2014) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 , 58 S.Ct. 1019 , 82 L.Ed. 1461 (1938)).

2014Waiver is an “ ‘intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right.’ ” Moayedi v. Interstate 35/Chisam Rd., L.P., 438 S.W.3d 1 (Tex.2014) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 , 58 S.Ct. 1019 , 82 L.Ed. 1461 (1938)).

2014Waiver is an “ ‘intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right.’ ” Moayedi v. Interstate 35/Chisam Rd., L.P., 438 S.W.3d 1 (Tex.2014) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 , 58 S.Ct. 1019 , 82 L.Ed. 1461 (1938)).

2005On appeal, the District also claims that Watson = s Whistleblower action should be dismissed in light of the Texas Supreme Court decision in Texas Dept. of Transp. v. Needham , 82 S.W.3d 314 (Tex. 2002).

1996Johnson Co. Sheriff’s Posse v. Endsley, 926 S.W.2d at 285 .

1991In Wooldridge , the court held that a non-movant failed to present his affirmative defense of fraud expressly even though he clearly set out, facts sufficient to raise a question on the issue of fraud in an affidavit attached to his response. 603 S.W.2d at 341-42 .

1991In Cottrell , the court held that a non-movant failed to present issues of fact with regards to the affirmative defenses of waiver, estoppel, release and “accord and satisfaction ” expressly when he relied solely on his answer and attached affidavit. 646 S.W.2d at 493 .

1982As in Town North National Bank v. Broaddus, supra, the trial court properly granted summary judgment in favor of the bank, at least as to the affirmative defenses of waiver, estoppel and failure of consideration.