non-waiver clause in Texas

1996Rebich cites Giller Industries, Inc. v. Hartley, 644 S.W.2d 183, 184 (Tex.App. — Dallas 1982, no writ) where the Dallas court was presented with a similar non-waiver clause; the court concluded that although there was no Texas authority, the paragraph extinguished waiver as an affirmative defense.

1993In Giller, the court held as a matter of law that a non-waiver clause allowed a landlord to declare a lease in default for failure to timely pay rent, even though it had accepted late rent for the preceding six months. 2 Id. at 184 . *318 Another panel of the Dallas Court of Appeals, however, reversed a summary judgment based in part on a nonwaiver clause and remanded the case for consideration of affirmative defenses, including waiver; the court did not mention Giller.

2010See, e.g. , Enserch Corp. v. Rebich , 925 S.W.2d 75, 82 (Tex. App.—Tyler 1996, writ dism’d); Straus v. Kirby Court Corp. , 909 S.W.2d 105, 108 (Tex. App.—Houston [14th Dist.] 1995, writ denied); Zwick v. Lodewijk Corp. , 847 S.W.2d 316, 318 (Tex. App.—Texarkana 1993, writ denied).

2003See Straus v. Kirby Court Corp., 909 S.W.2d 105, 108-09 (Tex.App.-Houston [14th Dist.] 1995, writ denied); Giller Indus., Inc. v. Hartley, 644 S.W.2d 183, 184 (Tex.App.-Dallas 1982, no writ).

2018See id. at 482 (observing that contractual doctrine of waiver rests on principle “that any competent adult can abandon a legal right and if he does so then he has lost it forever”); see also id. at 482-83 (holding that even a non-waiver clause may be waived).

2018See id. at 482 (observing that contractual doctrine of waiver rests on principle “that any competent adult can abandon a legal right and if he does so then he has lost it forever”); see also id. at 482-83 (holding that even a non-waiver clause may be waived).

2010See, e.g. , Enserch Corp. v. Rebich , 925 S.W.2d 75, 82 (Tex. App.—Tyler 1996, writ dism’d); Straus v. Kirby Court Corp. , 909 S.W.2d 105, 108 (Tex. App.—Houston [14th Dist.] 1995, writ denied); Zwick v. Lodewijk Corp. , 847 S.W.2d 316, 318 (Tex. App.—Texarkana 1993, writ denied).

1996Winslow v. Dillard Deptment Stores, 849 S.W.2d 862, 864 (Tex.App. — Texarkana 1993, writ denied); Zwick v. Lodewijk, 847 S.W.2d 316, 318 (Tex.App.— Texarkana 1993, writ denied).

2010See, e.g. , Enserch Corp. v. Rebich , 925 S.W.2d 75, 82 (Tex. App.—Tyler 1996, writ dism’d); Straus v. Kirby Court Corp. , 909 S.W.2d 105, 108 (Tex. App.—Houston [14th Dist.] 1995, writ denied); Zwick v. Lodewijk Corp. , 847 S.W.2d 316, 318 (Tex. App.—Texarkana 1993, writ denied).

2001Enserch Corp. v. Rebich, 925 S.W.2d 75, 82 (Tex.App. — Tyler 1996, writ dism’d by agr.).

2025LeBlanc v. Lange, 365 S.W.3d 70, 88 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (“[T]he circumstances surrounding the negotiations must be shocking” to warrant a finding of procedural unconscionability.);72/ and • The absence of any contract terms that are “so one-sided that it is unconscionable under the circumstances existing when the parties made the contract.” In re FirstMerit Bank, N.A., 52 S.W.3d 749, 757 (Tex. 2001).

2025LeBlanc v. Lange, 365 S.W.3d 70, 88 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (“[T]he circumstances surrounding the negotiations must be shocking” to warrant a finding of procedural unconscionability.);72/ and • The absence of any contract terms that are “so one-sided that it is unconscionable under the circumstances existing when the parties made the contract.” In re FirstMerit Bank, N.A., 52 S.W.3d 749, 757 (Tex. 2001).

2025P'ship v. Bradberry, 526 S.W.3d 471, 481 (Tex. 2017) (“[A]s a general proposition, nonwaiver provisions are binding and enforceable.”); • The Fund’s conduct that was entirely consistent with the contract’s waiver restrictions and the 365 day repair and replacement timeline in the contract, including its approval of four written extensions of that deadline.71/ Id. at 474 (waiver of a non-waiver clause requires, at a minimum, conduct that is inconsistent with its terms); • The lack of any “shocking” circumstances surrounding the negotiation of the underlying contract between the Fund and 69/ CR

2025P'ship v. Bradberry, 526 S.W.3d 471, 481 (Tex. 2017) (“[A]s a general proposition, nonwaiver provisions are binding and enforceable.”); • The Fund’s conduct that was entirely consistent with the contract’s waiver restrictions and the 365 day repair and replacement timeline in the contract, including its approval of four written extensions of that deadline.71/ Id. at 474 (waiver of a non-waiver clause requires, at a minimum, conduct that is inconsistent with its terms); • The lack of any “shocking” circumstances surrounding the negotiation of the underlying contract between the Fund and 69/ CR

2022John, 218 S.W.3d 921, 925 (Tex. App.—Beaumont 2007, no pet.); Air Park- 1 Regarding the non-waiver clause mentioned in the majority opinion, Location said nothing of it in either its response to Depot’s motion for summary judgment or its appellant’s brief.

2014See Strategic Energy, 348 S.W.3d at 449 ; Rodriguez, 314 S.W.3d at 645 ; Guzman v. Ugly Duckling Car Sales of Tex., L.L.P., 63 S.W.3d 522, 528 (Tex. App.—San Antonio 2001, pet. denied) (prior acceptance of late 16 Ferstler testified that initially Texas Skyline wanted to avoid litigation over the loan and that only in discovery after suit was filed did Texas Skyline learn the full extent of the funds Woerner had transferred to his personal accounts. 19 payments without pursuing remedies under contract did not waive non-waiver clause where payee corresponded with payor and warned of delinquent

2014See Strategic Energy, 348 S.W.3d at 449 ; Rodriguez, 314 S.W.3d at 645 ; Guzman v. Ugly Duckling Car Sales of Tex., L.L.P., 63 S.W.3d 522, 528 (Tex. App.—San Antonio 2001, pet. denied) (prior acceptance of late 16 Ferstler testified that initially Texas Skyline wanted to avoid litigation over the loan and that only in discovery after suit was filed did Texas Skyline learn the full extent of the funds Woerner had transferred to his personal accounts. 19 payments without pursuing remedies under contract did not waive non-waiver clause where payee corresponded with payor and warned of delinquent

2012See id.

1996Winslow v. Dillard Deptment Stores, 849 S.W.2d 862, 864 (Tex.App. — Texarkana 1993, writ denied); Zwick v. Lodewijk, 847 S.W.2d 316, 318 (Tex.App.— Texarkana 1993, writ denied).

1993Regent Int’l Hotels, Ltd. v. Las Colinas Hotels Corp., 704 S.W.2d 101, 104 (Tex. App.—Dallas 1985, no writ).