law-waivers | jury waiver | waiver of trial and litigation by consenting to arbitration | waiver of contractual right
to arbitrate dispute by invoking judicial process to opponent's detriment | waiver of governmental immunity by
conduct | waiver-as-affirmative-defense | waiver argument | waiver of governmental immunity by conduct | jury
waiver | waiver of right to arbitrate by litigation conduct | procedural waivers | waiver of appellate review by
failure to preserve error in the trial court | waiver by failure to submit issue to the jury | waiver by litigation
WHAT IS WAIVER AS A LEGAL CONCEPT?
Waiver is an intentional relinquishment of a known right or intentional conduct inconsistent with claiming that
right. Avary v. Bank of Am., N.A., 72 S.W.3d 779, 788 (Tex.App.-Dallas 2002, pet. denied). A waivable right
may spring from law or from a contract. Tenneco Inc. v. Enterprise Prods. Co., 925 S.W.2d 640, 643 (Tex.
1996). Although waiver is ordinarily a question of fact, when the facts and circumstances are admitted or
clearly established, the question becomes one of law. Id.; see also Motor Vehicle Bd. of the Tex. DOT v. El
Paso Indep. Auto. Dealers Assoc., Inc., 1 S.W.3d 108, 111 (Tex.1999).
A party may waive its right to compel arbitration by substantially invoking the litigation process to its opponent’
s detriment. In re Bank One, N.A., 216 S.W.3d 825, 827 (Tex. 2007) (orig. proceeding). There is a strong
presumption against finding that a party has waived its right to arbitration; the burden to prove waiver is thus
a heavy one. Id.; In re D. Wilson Constr. Co., 196 S.W.3d 774, 783 (Tex. 2006). Any doubts regarding
waiver are resolved in favor of arbitration. In re Bruce Terminix Co., 988 S.W.2d 702, 705 (Tex. 1998).
Waiver may be express or implied, but it must be intentional. EZ Pawn Corp. v. Mancias, 934 S.W.2d 87, 89
(Tex. 1996). Waiver is a question of law based on the totality of the circumstances. The test for waiver is
whether the party moving for arbitration “has substantially invoked the judicial process to an opponent’s
detriment, the latter term meaning inherent unfairness caused by ‘a party’s attempt to have it both ways by
switching between litigation and arbitration to its own advantage.’” In re Citigroup Global Mkts., Inc., 258 S.W.
3d 623, 625 (Tex. 2008) (orig. proceeding) (quoting Perry Homes v. Cull, 258 S.W.3d 580, 597 (Tex. 2008),
cert. denied, 129 S. Ct. 952 (2009)).
Review of a denial of a motion to compel arbitration is conducted under the abuse of discretion standard.
Okorafor v. Uncle Sam & Assocs., Inc., 295 S.W.3d 27, 38 (Tex. App.—Houston [1st Dist.] 2009, pet.
denied). The trial court’s ultimate conclusion concerning waiver is a legal question that we review de novo.
Id. However, when the trial court must first resolve underlying facts, we defer to the trial court’s factual
resolutions and any credibility determinations that may have affected those resolutions, and we may not
substitute our judgment on these matters. Id.
WAIVER AS AFFIRMATIVE DEFENSE
Waiver is an affirmative defense, requiring a party to specifically plead and prove it. Cal-Tex Lumber Co., Inc.
v. Owens Handle Co., Inc., 989 S.W.2d 802, 812 (Tex.App.Tyler, 1999). "Waiver has been defined as an
intentional relinquishment of a known right or intentional conduct inconsistent with claiming it." U.S. Fidelity &
Guaranty Co. v. Bimco Iron & Metal Corp., 464 S.W.2d 353, 357 (Tex.1971). Waiver may be either express
or indicated by conduct that is inconsistent with an intent to claim the right. Cal-Tex. Lumber Co., Inc., 989 S.
W.2d at 812. "A party's intention is a primary factor in determining questions of waiver, and in the absence of
a clear intent expressed in words, acts, or conduct, waiver will be implied only to prevent fraud or inequitable
consequences." Id. (citing Stowers v. Harper, 376 S.W.2d 34, 40 (Tex.Civ.App.-Tyler 1964, ref. n.r.e.)).
Waiver is an intentional relinquishment of a known right or intentional conduct
inconsistent with claiming that right. Mass. Bond & Ins. Co. v. Orkin Exterm. Co., 416 S.W.2d 396,
401 (Tex. 1967).
Waiver is the intentional relinquishment of a known right or intentional conduct inconsistent with claiming that
right. 4901 Main, Inc., 187 S.W.3d at 632.
4901 Main, Inc. v. TAS Auto., Inc., 187 S.W.3d 627, 632 (Tex. App.-Houston [14th Dist.] 2006, no pet.).
Waiver is "an intentional relinquishment of a known right or intentional conduct inconsistent with claiming that
right." Jernigan v. Langley, 111 S.W.3d 153, 157 (Tex. 2003). For waiver to be implied based on a party's
actions, intent to waive must be clearly demonstrated in the surrounding facts and circumstances. Motor
Vehicle Bd. of Tex. Dep't of Transp. v. El Paso Indep. Auto. Dealers Ass'n, 1 S.W.3d 108, 111 (Tex. 1999). If
the person to be charged with waiver of a right says or does nothing inconsistent with an intent to rely upon
that right, the right has not been waived. Maryland Cas. Co. v. Palestine Fashions, Inc., 402 S.W.2d 883, 888
Under Texas law, waiver is "an intentional relinquishment of a known right or intentional conduct inconsistent
with claiming that right." Jernigan v. Langley, 111 S.W.3d 153, 156 (Tex. 2003) (per curiam) (quoting Sun
Exploration & Prod. Co. v. Benton, 728 S.W.2d 35, 37 (Tex. 1987)). "The elements of waiver are: (1) an
existing right, benefit, or advantage; (2) knowledge, actual or constructive, of its existence; and (3) actual
intent to relinquish the right, which can be inferred from conduct." First Interstate Bank of Ariz., N.A. v.
Interfund Corp., 924 F.2d 588, 595 (5th Cir. 1991) (citation omitted). "Waiver is largely a matter of intent, and
for implied waiver to be found through a party's actions, intent must beclearly demonstrated by the
surrounding facts and circumstances." Jernigan, 111 S.W.3d at 156 (emphasis added) (citation omitted).
For implied waiver to be found through a party's conduct, intent must be clearly demonstrated by the
surrounding facts and circumstances. Id.; see Van Indep. Sch. Dist. v. McCarty, 165 S.W.3d 351, 353 (Tex.
2005) ("[T]hat conduct must be unequivocally inconsistent with claiming a known right."). "There can be no
waiver of a right if the person sought to be charged with waiver says or does nothing inconsistent with an
intent to rely upon such right." Jernigan, 111 S.W.3d at 156. Waiver is ordinarily a question of fact, but when
the surrounding facts and circumstances are undisputed, the question becomes one of law. Id. at 156-57.
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