Fact Issue on Waiver?

Fritz American Mangagement LLC v. Huge American Real Estate, Inc. reversed a summary judgment in a contract case, noting, inter alia, fact issues on the defense of waiver. Points from the Fifth Court’s opinion include:

• Legal standard. In addition to the often-used definition of waiver as “an intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right,” the Court further observed: “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.” In the specific setting of a contractual right, the Court further said: “A waiver of a right granted in a contract can occur in any of three ways: the right may be expressly renounced; the renunciation may be shown when a party knowingly possessing the right is inactive or silent for an unreasonable period of time such that the intention to waive is implied; or waiver can occur if a party knowingly possessing the right acts in such a manner that the party misleads the other party into believing that a waiver has occurred.”  (all citations omitted).
• Factually. “[Plaintiff] gave this permission after declining to respond either affirmatively or negatively to Fritz’s e-mail seeking permission for the remodel. … This is particularly true in light of the evidence showing that both parties were experienced Burger King franchisees that understood the nature of franchisor requirements. That is, Fritz’s evidence supported a reasonable inference that Huge Real Estate would have understood the sort of remodel sought by Fritz, which was required to maintain a Burger King franchise on the premises pursuant to the lease.”  (emphasis added).