law-waiver | estoppel | waiver of right to arbitrate | waiver of right to jury trial | jury waiver
ELEMENTS OF WAIVER GENERALLY | AFFIRMATIVE DEFENSE OF WAIVER
WAIVER DEFINED: Waiver is an intentional relinquishment of a known right or
intentional conduct inconsistent with claiming that right. Sun Exploration & Prod. Co. v.
Benton, 728 S.W.2d 35, 37 (Tex. 1987). A waivable right may spring from law or from contract. Tenneco
Inc. v. Enterprise Prods. Co., 925 S.W.2d 640, 643 (Tex. 1996).
ELEMENTS OF WAIVER DEFENSE: Waiver is the intentional relinquishment of a right actually known, or
intentional conduct inconsistent with claiming that right. See In re Gen. Elec. Capital Corp., 203 S.W.3d
314, 316 (Tex. 2006); Jernigan v. Langley, 111 S.W.3d 153, 156 (Tex. 2003); Bocanegra v. Aetna Life Ins.
Co., 605 S.W.2d 848, 851 (Tex. 1980). The elements of waiver include (1) an existing right, benefit, or
advantage held by a party; (2) the party’s actual knowledge of its existence; and (3) the party’s actual
intent to relinquish the right, or intentional conduct inconsistent with the right. See Tenneco Inc. v. Enter.
Prods. Co., 925 S.W.2d 640, 643 (Tex. 1996).
Source: Ulico Casualty Co. v. Allied Pilots Association, No. 06-0247 (Tex. Aug. 29, 2008)(Johnson)
(insurance coverage, estoppel)
DISCLAIMER | WAIVER OF RELIANCE CLAUSE
Forest Oil Corp v. McAllen, No. 06-0178 (Tex. Aug. 29, 2008)(Willett)(arbitration, commercial contact,
fraudulent inducement claim barred by contractual waiver of reliance language)
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Chief Justice Jefferson delivered a dissenting opinion, in which Justice Medina joined.
WAIVER OF RIGHT TO ENFORCE ARBITRATION CLAUSE by LITIGATION CONDUCT
In Re Bank of America, N.A. (Tex. Feb. 27, 2009)(per curiam)(mandamus)
(contractual jury waiver enforced by mandamus, conspicuousness of waiver, knowing and voluntary
“[A] party waives an arbitration clause by substantially invoking the judicial process to the other
party’s detriment or prejudice.” Perry Homes v. Cull, ___ S.W.3d ___, ___ (Tex. 2007). Waiver is a
legal question for the court based on the totality of the circumstances, and asks whether a party 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.” Id. at __.
SOURCE: In Re Fleetwood Homes of Texas, LP, 257 S.W.3d 692 (Tex. 2008) (orig. proc.)(arbitration
clause enforced, no waiver)
Perry Homes v. Cull, No. 05-0882, 258 S.W.3d 850 (Tex. May 2, 2008)(Opinion by Scott A. Brister)
(arbitration award in favor of consumers overturned; court says home owners implicitly waived right to
arbitrate by their litigation conduct)
05-0882 PERRY HOMES, A JOINT VENTURE, HOME OWNERS MULTIPLE EQUITY, INC., AND
WARRANTY UNDERWRITERS INSURANCE COMPANY v. ROBERT E. CULL, AND S. JANE CULL; from
Tarrant County; 2nd district (02-04-00052-CV, 173 S.W.3d 565, 08-31-05)
The Court reverses the court of appeals' judgment, vacates the arbitration award, and remands the case
to the trial court.
Justice Brister delivered the opinion of the Court, in which Justice Hecht, Justice O'Neill, Justice
Wainwright, and Justice Medina joined, and in which Chief Justice Jefferson, Justice Green, Justice
Johnson, and Justice Willett joined as to parts I-V.
Justice O'Neill delivered a concurring opinion.
Justice Johnson wrote an opinion concurring and dissenting in part, which was joined by Chief Justice Jefferson and
Justice Willett delivered an opinion concurring in part and dissenting in part.
Opinion below: Perry Homes v. Cull, 02-04-00052-CV, (Tex.App.- Fort Worth, Aug 31, 2005, pet . filed)(reversed, and
arbitration award for home owners vacated)