1 of 100 DOCUMENTS
ROSIE ZWICK, INDIVIDUALLY AND D/B/A POST OAK EXECUTIVE SUITES,
Appellant v. LODEWIJK CORPORATION, Appellee
COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA
847 S.W.2d 316;
1993 Tex. App. LEXIS 35
January 12, 1993, Decided
January 12, 1993, Filed
Appellee's Motion for Rehearing Overruled
February 9, 1993.
On Appeal from the 334th Judicial District Court.
Harris County, Texas. Trial Court No. 89-21737
The judgment in favor of Lodewijk and the Miller
Company is reversed, and the case is remanded to the
trial court for a trial.
Hon. William F. Harmeyer, Attorney at Law, 7324
Southwest Freeway, Suite 800, Houston, TX 77074.
Hon. Joseph O. Slovacek, Hoover, Bax & Shearer, 5847
San Felipe, Suite 2200, P. O. Box 4547, Houston, TX
Before Cornelius, C.J., Bleil and Grant, JJ.
Opinion by Justice Bleil
Rosie Zwick appeals the trial court's judgment in
favor of the Lodewijk Corporation and Henry S. Miller
Company. The primary issue is whether the clause in the
lease between the parties providing that failure of the
lessor to act on any default does not waive the default is
effective as a matter of law to preclude any waiver of a
default by the lessor. We conclude that the nonwaiver of
default provision is not so effective as a matter of law.
We also conclude that the statute of frauds and the lease
provision do not preclude a claim of oral
modification. We reverse the trial court's judgment and
remand the case for trial.
In 1982, Zwick leased most of a floor in a Houston
office building owned by the Lodewijk Corporation and
managed by the
Miller Company. Zwick used
the building space for a business called Post Oak
Executive Suites. She subleased office space in the
building and provided support services. Zwick fell
behind on her rental payments during the mid-1980's
and, in 1987, renegotiated her lease.
Due to the nature of Zwick's business, she routinely
collected rent from her subtenants around the first of the
month and remitted the rent to the Miller Company
sometime later in the month. Zwick maintained that the
Miller Company's express and implied representations
along with its long-standing course of conduct led her to
believe that her rent was not considered late if it was paid
within the month it was due.
Zwick was current in her lease payments as of