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847 sw2d 316 Zwick

847 sw2d 316 Zwick - 109NST Print Request Current Document...

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109NST Print Request: Current Document: 1 Time of Request: February 28, 2003 09:38 AM EST Number of Lines: 154 Job Number: 1822:0:82167714 Client ID/Project Name: me Research Information: TX State Cases, Combined when can the "no waiver" clause in a lease be waived Send to: BAIN, BRUCE 1535 WEST LOOP S FL 4 HOUSTON, TEXAS 77027-9509
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1 of 100 DOCUMENTS ROSIE ZWICK, INDIVIDUALLY AND D/B/A POST OAK EXECUTIVE SUITES, Appellant v. LODEWIJK CORPORATION, Appellee No. 6-92-088-CV 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 SUBSEQUENT HISTORY: [**1] Appellee's Motion for Rehearing Overruled February 9, 1993. PRIOR HISTORY: On Appeal from the 334th Judicial District Court. Harris County, Texas. Trial Court No. 89-21737 DISPOSITION: The judgment in favor of Lodewijk and the Miller Company is reversed, and the case is remanded to the trial court for a trial. COUNSEL: 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 77210. JUDGES: Before Cornelius, C.J., Bleil and Grant, JJ. OPINIONBY: CHARLES BLEIL OPINION: [*316] Opinion by Justice Bleil OPINION 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 [**2] 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 [*317] 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
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