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Flores v. Skaro11/3/2005
waiver. The law on waiver distinguishes between a showing of intent by actual renunciation and a showing of intent based on inference. In the latter situation, it is the burden of the party who is to benefit by a showing of waiver to produce conclusive evidence that the opposite party unequivocally manifested its intent to no longer assert its claim. Although waiver is ordinarily a question of fact, when the facts and circumstances are admitted or clearly established, the question becomes one of law.
In this case, other than Rogelio's claim in his deposition that he did not consent to the settlement distribution, no other evidence supports his claim that the settlement constituted a breach of the employment contract. The agreement did not provide for the precise apportionment of the clients' settlement proceeds. The record further reflects that Rogelio, as well as appellee's other clients, signed an itemized settlement statement approving distribution of the settlement proceeds. In his deposition testimony, Rogelio acknowledged that he signed the settlement statement. He also acknowledged receipt of a substantial amount of correspondence related to the underlying suit, but could not recall whether he read the settlement statement. Despite receiving several letters related to distribution of the settlement, Rogelio nonetheless maintains that he did not consent to the settlement distribution. Rogelio's deposition testimony, without more, is insufficient to create a reasonable inference that he did not consent to the settlement distribution that was previously agreed to by all of appellee's clients. Rogelio also initialed each page of the court's final judgment, which stated that the attorney's fees would be paid by him, individually and in his capacity as representative of the estate of Teresa. For approximately three years after final settlement of the underlying suit, Rogelio voiced no objection and remained silent with respect to the propriety of the settlement. Based on this evidence, we conclude Rogelio's conduct established his intent to relinquish his right to challenge the distribution of the settlement proceeds. Accordingly, we find that appellee conclusively established the affirmative defense of waiver. Therefore, summary judgment on traditional grounds was proper. As such, we overrule Rogelio's challenge to the trial court's grant of summary judgment on appellee's defense of waiver.
Conclusion
Because the trial court's grant of summary judgment on traditional grounds was appropriate, we need not address the remaining issues on appeal. We affirm the trial court's grant of summary judgment in favor of appellee.
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