nonwaiver clause in Texas

2026No failure by any party to insist upon strict performance of any covenant, duty, agreement, or condition of this Agreement or to exercise any right or remedy consequent upon a breach thereof shall constitute waiver of any such breach or any other covenant, duty, agreement or condition.107 [¶ 118] They cite Shields, 526 S.W.3d at 474 , for the point that “[t]o waive a nonwaiver clause, ʻthere must be at a minimum, some act inconsistent with its terms.’” 108 104 Stars’ Waiver MSJ at 14. 105 Stars’ Waiver MSJ at 1-8, 14. 106 Stars’ Waiver MSJ at 14. 107 Stars’ MSJ App., Vol. 1 at 106, 191 (emphas

2026The Mavericks’ Responses [¶ 120] The Mavericks responded that (i) the nonwaiver clauses are facially dispositive; (ii) their prior non-action of their redemption rights does not waive the nonwaiver-by-inaction clauses; and (iii) the Stars did not identify affirmative conduct that waived (a) the nonwaiver clauses or (b) the Mavericks’ redemption rights.111 [¶ 121] First, the Mavericks rely on Shields, 526 S.W.3d at 481-93 , to argue that to waive a nonwaiver clause a party must manifest clear intent to do so; otherwise, the clause is facially dispositive that waiver cannot be based 109 Stars’ Wai

2022We also conclude Fritz’s summary judgment evidence created an issue for the fact finder on whether Huge Real Estate also impliedly waived the nonwaiver clause. “[U]nless the facts and circumstances establishing waiver of the nonwaiver provision are admitted or established as a matter of law, whether the provision has been waived should be a fact question decided by the trier of fact on a case-by-case basis.” Vance v. Popkowski, 534 S.W.3d 474, 481 (Tex. App.—Houston [1st Dist.] 2017, pet. denied).

2019A nonwaiver clause will be held to be ineffective only if the party seeking to avoid the covenants can demonstrate “a complete abandonment of the entire set of restrictions, including the nonwaiver provision.” Vance v. Popkowski, 534 S.W.3d 474, 479-80 (Tex. App.— Houston [1st Dist.] 2017, pet. denied); Musgrove, 2009 WL 976010 at *4.

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

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

2026Opinion and Order on Combined Summary Judgment Motions, Page 49 [¶ 119] From there, they cite EWB-I, 527 S.W.3d at 469 , to argue that a nonwaiver clause based on inaction does not apply to a waiver based on affirmative breaches. 109 They then argue that the Mavericks’ designation of their principal office and place of business and location of DSRA’s controlling person in Las Vegas, Nevada conclusively waives the nonwaiver clause and thus permits waiver of the Mavericks’ redemption rights.110 C.

2026Opinion and Order on Combined Summary Judgment Motions, Page 49 [¶ 119] From there, they cite EWB-I, 527 S.W.3d at 469 , to argue that a nonwaiver clause based on inaction does not apply to a waiver based on affirmative breaches. 109 They then argue that the Mavericks’ designation of their principal office and place of business and location of DSRA’s controlling person in Las Vegas, Nevada conclusively waives the nonwaiver clause and thus permits waiver of the Mavericks’ redemption rights.110 C.

2022Cf. Straus v. Kirby Court Corp., 909 S.W.2d 105, 109 (Tex. App.—Houston [14th Dist.] 1995, writ denied) (finding no waiver of a nonwaiver clause when, in part, “[lessee] never testified he had an implied or express agreement –17– with [lessor] permitting him to remit his rent after the first day of each month”).

2017Shields, 526 S.W.3d at 482-83 , 2017 WL 2023602, at *8 ; Straus, 909 S.W.2d at 108 .

2026Co. v. Allied Pilots Ass’n, 262 S.W.3d 773, 778 (Tex. 2008). [¶ 86] The mere presence of a nonwaiver clause does not mean that waiver did not occur.

2026See Tenneco, 925 S.W.2d at 643-44 . [¶ 126] Second, the plaintiff’s inaction in Tenneco was in the face of the defendant’s direct breaches of contract duties owed to those plaintiffs.

2017By its plain terms—addressing waiver through inaction—the nonwaiver clause does not apply to the waiver argument presented here that is based on affirmative breaches: closure of the parking garage and closure of a large portion of the retail facility. 15 See Concierge Nursing Ctrs., Inc. v. Antex Roofing, Inc., 433 S.W.3d 37, 47 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) (contract terms given plain and ordinary meaning unless other intent is indicated or ambiguity exists). 1) Affirmative act of closing parking garage Overflow Owner’s first assertion of active violation of the ROA’s park

2017See Gym-N-I Playgrounds, Inc. v. Snider, 220 S.W.3d 905, 912 (Tex. 2007) (reaffirming that competent parties " ‘shall have the utmost liberty of contracting, and .that their contracts when entered into freely and voluntarily shall be held sacred and shall be enforced by Courts of justice' ” (quoting BMG Direct Mktg., Inc. v. Peake, 178 S.W.3d 763, 767 (Tex. 2005))); see also Phila.

2017See Gym-N-I Playgrounds, Inc. v. Snider, 220 S.W.3d 905, 912 (Tex. 2007) (reaffirming that competent parties " ‘shall have the utmost liberty of contracting, and .that their contracts when entered into freely and voluntarily shall be held sacred and shall be enforced by Courts of justice' ” (quoting BMG Direct Mktg., Inc. v. Peake, 178 S.W.3d 763, 767 (Tex. 2005))); see also Phila.

2017Thus, given the existence of a non-waiver provision, the landlord may demand strict compliance with a lease provision concerning time of payment without giving prior notice of such demand.”); see also Van Bibber v. Norris, 275 Ind. 555 , 419 N.E.2d 115, 121 (1981) (noting that a rule permitting waiver of a nonwaiver clause by accepting late payments is "illogical, since the very conduct which the clause is designed to permit[—]ae-ceptance of late payment[—]is turned around to constitute waiver of the clause permitting the conduct”). .

2017Thus, given the existence of a non-waiver provision, the landlord may demand strict compliance with a lease provision concerning time of payment without giving prior notice of such demand.”); see also Van Bibber v. Norris, 275 Ind. 555 , 419 N.E.2d 115, 121 (1981) (noting that a rule permitting waiver of a nonwaiver clause by accepting late payments is "illogical, since the very conduct which the clause is designed to permit[—]ae-ceptance of late payment[—]is turned around to constitute waiver of the clause permitting the conduct”). .

2017See S.H.V.C. v. Roy, 188 Conn. 503 , 450 A.2d 351, 354-55 (1982) (“The appellate court found that the only evidence offered in support of the defense of waiver was the acceptance by the plaintiff of late rental payments and that this evidence alone was insufficient to establish a waiver in light of the nonwaiver clause in the lease.

2017See S.H.V.C. v. Roy, 188 Conn. 503 , 450 A.2d 351, 354-55 (1982) (“The appellate court found that the only evidence offered in support of the defense of waiver was the acceptance by the plaintiff of late rental payments and that this evidence alone was insufficient to establish a waiver in light of the nonwaiver clause in the lease.

1993Giller Indus., Inc. v. Hartley, 644 S.W.2d 183, 184 (Tex.App.—Dallas 1982, no writ).

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.