law-waiver-as-affirmative-defense | waiver argument | waiver of governmental immunity by conduct | jury waiver |
waiver of right to arbitrate by litigation conduct |

ELEMENTS OF WAIVER

The elements of waiver are: (1) an existing right, benefit, or advantage; (2) actual or constructive notice
of its existence; (3) an actual intent to relinquish that right. Tenneco Inc. v. Enterprise Products Co., 925
S.W.2d 640, 643 (Tex. 1996). Ordinarily, the issue of waiver is a question of fact. Id. When, however,
facts are clearly established and are undisputed, waiver becomes a question of law. Id. 01-07-00971-
CV (11/25/09)

AFFIRMATIVE DEFENSE OF WAIVER

“The affirmative defense of waiver can be asserted against a party who intentionally relinquishes a known right
or engages in intentional conduct inconsistent with claiming that right.” Tenneco, Inc. v. Enter. Prods. Co., 925 S.
W.2d 640, 643 (Tex. 1996).   In order to be entitled to a summary judgment on waiver, Clear Channel had to
establish conclusively each element of this affirmative defense. See Sci. Spectrum, 941 S.W.2d at 911.
Therefore, Clear Channel was required to establish conclusively that Potter had either (1) expressly waived his
option to purchase or (2) engaged in conduct inconsistent with his option to purchase. See Tenneco, 925 S.W.
2d at 643.

Clear Channel did not do so. There is no evidence in the record that Potter expressly waived his option to
purchase, and the evidence offered on this matter does not conclusively establish an implied intent on the part
of Potter to waive his option to purchase. “Waiver is largely a matter of intent, and for implied waiver to be found
through a party’s actions, intent must be clearly demonstrated by the surrounding facts and circumstances.”
Jernigan v. Langley, 111 S.W.3d 153, 156 (Tex. 2003). In order to establish waiver by conduct, the conduct
must be “unequivocally inconsistent” with claiming a known right. Van Indep. Sch. Dist. v. McCarty, 165 S.W.3d
351, 353 (Tex. 2005). The evidence on summary judgment does not conclusively establish that Potter engaged
in “clear, unequivocal, and decisive acts” evidencing the intention to waive his option to purchase. See Estes v.
Wilson, 682 S.W.2d 711, 714 (Tex. App.—Fort Worth 1984, writ ref’d n.r.e.) (“It is an established rule of law that
to prove an implied waiver of a legal right, there must be a clear, unequivocal and decisive act of a party
showing a purpose or acts which amount to estoppel on his part.”). We hold that Clear Channel did not meet its
burden to be entitled to summary judgment on the affirmative defense of waiver.
Potter v. Clear Channel Outdoor, Inc. (Tex.App.- Houston [1st Dist.] Jul. 2, 2009)(Taft)
(
billboard lease, billboard lease, construction of lease, contract interpretation, quantum meruit, declaratory
judgment, UDJA, attorney's fees)   
AFFIRM TRIAL COURT JUDGMENT IN PART, REVERSE TRIAL COURT JUDGMENT IN PART, AND
REMAND CASE TO TRIAL COURT FOR FURTHER PROCEEDINGS: Opinion by
Justice Taft     
Before Chief Justice Radack, Justices Taft and Sharp   
01-07-00578-CV  Larry E. Potter v. Clear Channel Outdoor, Inc.   
Appeal from 333rd District Court of Harris County
Trial Court Judge:  
Hon. Joseph Halbach


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