## Facts

- Rosie Zwick, individually and doing business as Post Oak Executive Suites, leased most of a floor in a Houston office building owned by Lodewijk Corporation and managed by Henry S. Miller Company.
- Zwick operated an “executive suites” business: she subleased smaller offices and provided services to subtenants.
- Under the lease, rent was due at the beginning of each month, and late payment could constitute a default.
- The lease included a nonwaiver provision stating that the lessor’s failure to act on a default would not waive that default, and it also included an integration (merger) clause stating the written lease reflected the complete agreement.
- Because Zwick collected rent from her subtenants around the first of each month, she routinely remitted rent to the lessor/manager later in the month.
- Over an extended period, the lessor/manager accepted Zwick’s later-in-the-month payments without declaring a default, and Zwick claimed the lessor/manager’s express and implied representations reinforced the understanding that payment during the month would be treated as acceptable.
- Zwick asserted that by March 1989 she was current on the lease.
- On April 14, 1989, before Zwick remitted April rent (consistent with prior months), Henry S. Miller Company served notice terminating the lease for failure to timely pay April rent and demanded she vacate within three days.
- Zwick was evicted within about thirty days, and she claimed her business failed after the eviction.
- Zwick contended the termination was tied to another tenant’s desire to expand (Telecheck), which Zwick claimed had communicated its readiness to proceed around the time notice was given.
- Lodewijk and Miller sued Zwick for breach of the lease and sought monetary recovery; the trial court granted summary judgment for the plaintiffs, and Zwick appealed.

## Issues

1. Whether the lease’s nonwaiver clause was effective as a matter of law to prevent Zwick from raising a waiver defense based on the lessor’s repeated acceptance of late rent.
2. Whether the statute of frauds and the lease’s integration clause barred, as a matter of law, Zwick’s claim that the parties modified the rent-due timing by oral agreement or by their conduct.

## Decision

- The court of appeals reversed the summary judgment and remanded the case for trial.
- The nonwaiver clause was not effective as a matter of law to eliminate a fact question on waiver where there was evidence of a course of dealing inconsistent with strict enforcement of the due date.
- The statute of frauds and the lease’s integration clause did not, as a matter of law, defeat Zwick’s claim of oral modification concerning the timing of rent payments.
- Because Zwick’s evidence raised genuine issues of material fact on waiver and modification, the plaintiffs were not entitled to summary judgment.

## Legal Principles

- Waiver may be shown by conduct; a party’s repeated acceptance of late performance can support a claim that strict compliance was waived.
- A contractual nonwaiver-of-default clause is evidence against waiver, but it is not automatically conclusive; conduct may still create a jury question on waiver.
- An integration clause and the statute of frauds do not automatically bar proof of a later modification; depending on the nature of the change and the evidence of performance, an oral modification claim may proceed at least to the factfinder.
- Summary judgment is improper when the record contains evidence that would allow reasonable factfinders to differ on waiver or modification.

## Conclusion

The court held that, despite written lease provisions addressing waiver and integration, Zwick’s evidence of long-term acceptance of later-in-the-month rent and related representations created fact questions on waiver and oral modification of the rent-timing requirement; accordingly, the summary judgment for Lodewijk and Miller was reversed and the case was remanded for trial.


Zwick v. Lodewijk Corporation, 847 S.W.2d 316 (1993)