See EWB-I, LLC v. PlazAmericas Mall Tex., LLC, 527 S.W.3d 447, 460 (Tex. App.-Houston [1st Dist.] 2017, pet. denied); Moseley v. Arnold, 486 S.W.3d 656, 663 (Tex. App.-Texarkana 2016, no pet.) (considering intent as to determining intended beneficiaries and in establishing changed conditions).

A nonwaiver clause can be waived by conduct. Shields L.P. v. Bradberry , 526 S.W.3d 471, 482–83 (Tex. 2017) ; EWB-I, LLC v. PlazAmericas Mall Tex., LLC , 527 S.W.3d 447, 468 (Tex. App.—Houston [1st Dist.] 2017, pet. denied) ; see alsoIn re Am. Nat'l Prop. & Cas. Co. , 582 S.W.3d 400, 405 (Tex. App.—San Antonio 2018, no pet.) ("[T]he inclusion in an insurance contract of a broadly-worded nonwaiver clause such as the one in this case is not dispositive, as a matter of law, on the issue of whether the insurer waived any of its rights under the contract.").

To establish waiver in such a case, the defendant must prove that violations then existing are "so great" as to lead the mind of an average person to reasonably conclude that the restriction in question has been abandoned and its enforcement waived. EWB-I, LLC v. PlazAmericas Mall Tex., LLC, 527 S.W.3d 447, 466 (Tex. App.—Houston [1st Dist.] 2017, pet. denied); Ski Masters of Tex., 269 S.W.3d at 673; Hicks v. Loveless, 714 S.W.2d 30, 35 (Tex. App.—Dallas 1986, writ ref'd n.r.e.). Factors to be considered include the number, nature, and severity of the existing violations; prior acts of enforcement of the restrictions; and whether it is still possible to realize to a substantial degree the benefits intended by the restrictions.

This is simply not a nonwaiver clause. See, e.g. , Shields Ltd. P'ship v. Bradberry , 526 S.W.3d 471, 481 (Tex. 2017) ;EWB–I, LLC v. PlazAmericas Mall Tex., LLC , 527 S.W.3d 447, 468 (Tex. App.—Houston [1st Dist.] 2017, pet. denied) ;In re GuideOne Nat'l Ins. , No. 07-15-00281-CV, 2015 WL 5766496, at *2 (Tex. App.—Amarillo Sept. 29, 2015, orig. proceeding) (mem. op.). Unlike the nonwaiver provisions in Shields Ltd. P'ship ; EWB–I, LLC ; In re GuideOne Nat'l Ins. ; or other provisions purportedly constituting nonwaiver provisions, this provision does not restrict or limit in any way Allstate's or Jackson's ability to waive any provision of Jackson's insurance policy with Allstate.

But a severability clause does not conclusively negate the possibility that waiver has occurred. EWB-I, LLC v. PlazAmericas Mall Tex., LLC, 527 S.W.3d 447, 467-68 (Tex. App.—Houston [1st Dist.] 2017, pet. denied); Vance v. Popkowski, 534 S.W.3d 474, 479 (Tex. App.—Houston [1st Dist.] 2017, pet. denied); see Shields Ltd. P'ship, 526 S.W.3d at 482-83 ("[W]e affirm that a party's rights under a nonwaiver provision may indeed be waived expressly or impliedly."). As such, the McCarleys cannot prevail on their affirmative defense of waiver unless they proffered sufficient evidence of conduct constituting a complete abandonment of the Restrictions as a whole, including the severability paragraph.

In other words, the clause exists precisely to stave off arguments like implied ratification.Cf.EWB-I, LLC v. PlazAmericas Mall Tex., LLC , 527 S.W.3d 447, 467–68 (Tex. App.—Houston [1st Dist.] 2017, pet. denied) ("The purpose of a nonwaiver provision is to prevent claims of waiver and abandonment of contract terms.... And in no event can waiver be premised on the same conduct the parties specifically agreed would not give rise to a waiver of contract[ual] rights."). We do not suggest that Strickhausen could never waive her anti-pooling rights by her conduct. SeeShields Ltd. P'ship v. Bradberry , 526 S.W.3d 471, 483–84 (Tex. 2017) (observing that any contract provision can be waived, including an anti-waiver clause).

See EWB-I, LLC v. Plazamericas Mall Texas, LLC, 527 S.W.3d 447, 464-65 (Tex. App.-Houston [1st Dist.] 2017, pet. denied) (property owner sought declaratory judgment that restrictive covenants were unenforceable and had been waived)

"Waiver-the 'intentional relinquishment of a known right'-can occur either expressly, through a clear repudiation of the right, or impliedly, through conduct inconsistent with a claim to the right." G.T. Leach Builders, LLC v. Sapphire V. P., LP, 458 S.W.3d 502, 511 (Tex. 2015); see also EWB-I, LLC v. PlazAmericas Mall Texas, LLC, 527 S.W.3d 447, 466 (Tex. App.- Houston [1st Dist.] 2017, pet. denied) ("Waiver is express when there is 'an intentional relinquishment of a known right,' and it is implied when there is 'intentional conduct inconsistent with claiming that right.'")

"The affirmative defense of waiver can be asserted against a party who intentionally relinquishes a known right or engages in intentional conduct inconsistent with claiming that right." Tenneco Inc. v. Enterprise Prods. Co., 925 S.W.2d 640, 643 (Tex. 1996); see EWB-I, LLC v. PlazAmericas Mall Texas, LLC, 527 S.W.3d 447, 465 (Tex. App.-Houston [1st Dist.] 2017, pet. denied). "

Suniverse, LLC v. Universal Am. Mortg. Co., LLC, No. 09-19-00090-CV, 2021 WL 632603, at *14 (Tex. App.-Beaumont Feb. 18, 2021, pet. denied) (mem. op.); see EWB-I, LLC v. PlazAmericas Mall Tex., LLC, 527 S.W.3d 447, 471 (Tex. App.-Houston [1st Dist.] 2017, pet. denied). In the amended motion for summary judgment, MERS stated that it no longer had any interest in the Property, and it pointed out that it was "not the foreclosing party."