Zwick v. Lodewijk Corporation

847 S.W.2d 316 (Tex. App. 1993)

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Nature of the Case

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Facts

D leased most of a floor in a building owned by P. D subleased office space in the building and provided support services. D fell behind on her rental payments during the mid-1980s and, in 1987, renegotiated her lease. D claimed that P'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. D was current in her lease payments as of March 1989. In April 1989, D began collecting rent from her subtenants as usual. On April 14, 1989, P served D with notice that her lease was terminated for failure to timely pay the April rent and ordered her to vacate the premises within three days. D was evicted within thirty days, and her business collapsed. P sued D for breach of the lease, monies owing and attorney's fees. The court granted a partial summary judgment in favor of P. At trial, the court concluded as a matter of law that the statute of frauds and certain clauses in the lease agreement precluded D from asserting modification, waiver or estoppel. The clauses were an Integration clause, a Non-Waiver clause, and an Entire Agreement and Binding Effect clause. The court rendered judgment against D and D appealed. D claims that P accepted her rental payments during the month in which each was due for a number of years, that it was aware that her manner of payment resulted from the nature of her business, and that its agents expressly approved of her manner of payment. P maintains that D's decision to declare the lease in default had more to do with its desire to release her space to another tenant than with any action of hers.