Shields Limited P'ship v. Bradberry

Shields Limited P'ship v. Bradberry

Opinion

 [*473]  In this forcible-detainer action,¹ a commercial landlord seeks to oust a long-term tenant claiming a superior right of immediate possession under a lease-extension option. Though the tenant frequently defaulted on the lease's rental-payment terms, the landlord regularly accepted the tenant's rental payments when tendered and without protest. The parties had agreed, however, that the landlord's "acceptance of late installment of Rent shall not be a waiver and shall not estop Landlord from enforcing that provision or any other provision of [the] lease in the future"; "all waivers" must be "in writing and signed by the waiving party"; and any forbearance of enforcement shall not be construed to constitute [**2]  a waiver.²

Express contract terms notwithstanding, the tenant asserts the landlord waived the contractual nonwaiver provision by accepting late payments without protest and, therefore, cannot deny force and effect to a lease extension the tenant had the option to exercise if he had "fulfilled all of the  [*474]  terms and conditions" of the lease. The tenant contends the landlord's conduct in accepting late rental payments waived the contractual nonwaiver clause. The decisive issue is whether waiver of a nonwaiver provision can be anchored in the same conduct the parties specifically agreed would not give rise to a waiver of contract rights. We hold it cannot.³ A contrary conclusion could not be squared with Texas's strong public policy favoring freedom of contract⁴ or with the notion that waiver requires intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right.⁵ The lease's plain terms permit the landlord to rely on the contractual nonwaiver clause and accept due and payable, but late, rental payments without waiving its right to enforce the lease as written.

Though we do not hold ] a nonwaiver provision may never be [**3]  waived,⁶ there must, at a minimum, be some act inconsistent with its terms.⁷ Here, the record bears no evidence the landlord acted inconsistently with the contract's express terms. Nor has the tenant identified any false or misleading representation supporting an equitable-estoppel bar to eviction, as the tenant asserts. We therefore reverse the  [*475]  court of appeals' judgment rejecting the landlord's forcible-detainer action, render judgment in the landlord's favor, and remand to the trial court to award attorney's fees in accordance with the parties' contract.⁸

Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.