                               Fourth Court of Appeals
                                        San Antonio, Texas
                                 MEMORANDUM OPINION

                                          No. 04-16-00755-CV

                                In the Estate of Aminta Perez-Muzza

                      From the County Court at Law No. 2, Webb County, Texas
                                Trial Court No. 2007PB7000089 L2
                               Honorable Jesus Garza, Judge Presiding

Opinion by:       Irene Rios, Justice

Sitting:          Marialyn Barnard, Justice
                  Rebeca C. Martinez, Justice
                  Irene Rios, Justice

Delivered and Filed: March 14, 2018

AFFIRMED

           Veronica Peña filed suit contesting the validity of the will of Aminta Perez-Muzza, in

which Perez-Muzza devised her entire estate to Rolando Peña. The trial court entered an order

granting Veronica’s traditional motion for summary judgment and setting aside its previous order

admitting the will to probate. On appeal, Rolando contends there is a genuine issue of material fact

regarding the laches defense he asserted in response to Veronica’s motion. We affirm the judgment

of the trial court.

                                            BACKGROUND

           Several months prior to her death in 2007, Perez-Muzza executed a will devising all of her

real and personal property to her nephew, Rolando, and naming him the independent executor of
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her estate. 1 On December 13, 2007, the trial court admitted the will to probate. On August 20,

2008, the trial court signed an order approving the final account of estate assets filed by Rolando.

        On December 10, 2009, Veronica filed suit contesting the validity of the will. In 2012, the

trial court dismissed the case for want of prosecution. Veronica appealed, and this court reversed

the dismissal and remanded the cause to the trial court, holding the trial court failed to provide

Veronica with notice of the dismissal. See In the Estate of Perez-Muzza, No. 04–12–00178–CV,

2013 WL 979128, at *1 (Tex. App.—San Antonio Mar. 13, 2013, no pet.) (mem. op.). In 2013,

the trial court again dismissed the case on the grounds that Veronica lacked proper standing to

bring the will contest. This court reversed and remanded the cause to the trial court. See In re

Estate of Perez-Muzza, 446 S.W.3d 415, 418 (Tex. App.—San Antonio 2014, pet. denied).

        Veronica filed a traditional motion for summary judgment in which she asked the trial court

to set aside its previous order admitting the will to probate because the witnesses who signed the

will did not do so in Perez-Muzza’s presence. See TEX. EST. CODE ANN. § 251.051 (West 2014)

(requiring that wills be “attested by two or more credible witnesses who are at least 14 years of

age and who subscribe their names to the will in their own handwriting in the testator’s presence”).

Rolando did not dispute the witnesses did not sign the will in Perez-Muzza’s presence. Instead,

Rolando filed a response to Veronica’s motion, claiming the doctrine of laches bars Veronica’s

will contest. On October 19, 2016, the trial court signed an order granting Veronica’s motion for

summary judgment and setting aside its previous order admitting the will to probate. Rolando

appeals.




1
  At the same time, Perez-Muzza also executed a deed transferring her ranch in Zapata, Texas to Rolando. In May
2009, maternal relatives of Perez-Muzza, including Veronica, sued Rolando to invalidate the deed. The record
indicates the lawsuit seeking to invalidate the deed was abated pending resolution of this case.

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                                      STANDARD OF REVIEW

       We review the trial court’s summary judgment de novo. Merriman v. XTO Energy, Inc.,

407 S.W.3d 244, 248 (Tex. 2013); Buck v. Palmer, 381 S.W.3d 525, 527 (Tex. 2012). In a

traditional motion for summary judgment, summary judgment is proper when there are no disputed

issues of material fact and the movant is entitled to judgment as a matter of law. TEX. R. CIV. P.

166a(c). The movant bears the burden to show no genuine issue of material fact exists and it is

entitled to judgment as a matter of law. Katy Venture, Ltd. v. Cremona Bistro Corp., 469 S.W.3d

160, 163 (Tex. 2015). “When reviewing a summary judgment, we take as true all evidence

favorable to the nonmovant and we indulge every reasonable inference and resolve any doubts in

the nonmovant’s favor.” Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 579 (Tex. 2017).

       Once a plaintiff proves she is entitled to judgment as a matter of law on every element of

her claim, the burden shifts to the defendant to produce evidence creating a genuine issue of

material fact as to the challenged element or elements in order to defeat the summary judgment.

Marx v. FDP, LP, 474 S.W.3d 368, 377 (Tex. App.—San Antonio 2015, pet. denied). A defendant

relying on an affirmative defense to defeat a motion for summary judgment must present sufficient

evidence to raise a genuine issue of material fact on each element of that defense. Id. at 378.

                                           DISCUSSION

       Rolando does not dispute Veronica proved as a matter of law the will was invalid because

the witnesses did not sign the will in Perez-Muzza’s presence. Instead, Rolando contends the trial

court erred by granting summary judgment because a genuine issue of material fact exists as to his

laches defense.

       The affirmative defense of laches precludes a plaintiff from asserting a legal or equitable

right after an unreasonable delay against a defendant who has changed his position in good faith

and to his detriment because of the delay. Doncaster v. Hernaiz, 161 S.W.3d 594, 603 (Tex.
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App.—San Antonio 2005, no pet.). As a general rule, laches is inappropriate when a statute of

limitations applies to the cause of action. Anderson Energy Corp. v. Dominion Oklahoma Texas

Expl. & Prod., Inc., 469 S.W.3d 280, 300 (Tex. App.—San Antonio 2015, no pet.). To prevail on

a laches defense where the cause of action was filed within the applicable statute of limitations,

the defendant must additionally show “extraordinary circumstances” that would work a “grave

injustice.” Caldwell v. Barnes, 975 S.W.2d 535, 538 (Tex. 1998); Fox v. O’Leary, No. 03-11-

00270-CV, 2012 WL 2979053, at *3 (Tex. App.—Austin July 10, 2012, pet. denied) (mem. op.).

         In this case, Veronica filed her suit contesting the will two days before the statute of

limitations expired. 2 Thus, to defeat Veronica’s motion for summary judgment with a laches

defense, Rolando was required to show the circumstances of this case are so “extraordinary” that

allowing Veronica to prosecute her will contest would work a “grave injustice.” See Fox, 2012

WL 2979053, at *3. Texas courts have examined a variety of scenarios where the circumstances

were not so “extraordinary” as to bar a suit filed within the statute of limitations. See Brewer v.

Nationsbank of Texas, N.A., 28 S.W.3d 801, 805 (Tex. App.—Corpus Christi 2000, no pet.)

(discussing cases where courts have refused to allow defendants to assert a laches defense to claims

filed within the applicable statute of limitations).

         For example, in Brink v. Fidelity Bank of Fort Worth, defendants asserted a laches defense

when a bank sued them to collect a deficiency from a foreclosure sale two days prior to the

expiration of the four-year statute of limitations. 966 S.W.2d 684, 684 (Tex. App.—Fort Worth

1998, no pet.). The court held that although defendants had taken out another loan from another




2
 Will contests must be filed within two years of the trial court’s order admitting the will to probate. TEX. EST. CODE
ANN. § 256.204(a). The trial court here entered its order admitting the will on December 13, 2007. Veronica filed her
suit contesting the will on December 10, 2009.

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institution and interest had accrued on the deficiencies, defendants could not assert a laches defense

because the case presented no extraordinary circumstances. Id. at 685.

       In Ayers v. Greater Houston Pipe, L.C., a vehicle restoration company abandoned a

Corvette in Greater Houston Pipe, L.C.’s (GHP) warehouse, and GHP subsequently sold the

vehicle, which changed hands twice and underwent $18,000 worth of repairs and restoration. No.

01-98-01022-CV, 2000 WL 1678443, at *1–*2 (Tex. App.—Houston [1st Dist.] Nov. 9, 2000, no

pet.) (mem. op.). Approximately two years after last inspecting the vehicle, Ayers, the original

owner of the Corvette, discovered the vehicle was missing and sued GHP, contending GHP did

not have a valid lien or the right to sell the Corvette. Id. GHP asserted a laches defense. Id. at *2.

On appeal, the court determined the record did not reveal circumstances so extraordinary as to

justify the application of laches to bar an action on which limitations had not run. Id. at *4.

       In this case, to support his laches defense, Rolando presented an affidavit in response to

Veronica’s motion for summary judgment. Rolando attested that although he interacted with

Veronica during the administration of the estate as independent executor, neither Veronica nor

anyone else in the family expressed concerns regarding the will’s validity. Rolando further attested

he relied on the validity of the will by paying estate debts and taxes and distributing estate assets.

To support his argument that this case presents extraordinary circumstances that would work a

grave injustice, Rolando attested:

       I no longer have much of the property that I inherited under the Will and that
       remained after paying estate debts and expenses as specifically ordered to do by
       this Court. Setting aside the probate of the Will at this late date would result in a
       grave injustice to me and any other person who acquired title and ownership of
       estate property without knowledge that the Will might be invalid, such as the banks
       who foreclosed on the certificates of deposit and the Internal Revenue Service.

       The record shows Rolando was the sole beneficiary under the probated will. Rolando

argues the record also indicates the independent administration of the will terminated in August


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2008. We note the trial court’s order did not specifically close the administration of the estate, but

only approved the final account of estate assets. Nevertheless, that order was entered

approximately eight months after the will was admitted to probate and fourteen months prior to

the expiration of the statute of limitations for a will contest to be filed. Despite his attestation that

no family members expressed concerns regarding the validity of the will, the record indicates

family members did file suit approximately seven months before the filing of the will contest to

invalidate a deed transferring a ranch to Rolando.

        Although Rolando argues he acted in good faith to his detriment because of Veronica’s

delay in filing the will contest, he does not present evidence that Veronica’s delay was

unreasonable. Rolando merely asserts he followed the procedures required for closing the estate

and argues that the independent administration of the estate was terminated prior to suit being

filed. Other than mentioning the IRS and the banks that foreclosed on the estate’s certificates of

deposit, Rolando does not specify how setting aside the trial court’s previous order probating the

will would result in a grave injustice to him or others, besides the IRS and banks. Additionally,

Rolando does not specify who acquired title and ownership of the disposed-of property or under

what circumstances. Further, Rolando does not specify when he disposed of estate property he

inherited — before or after Veronica filed suit to contest the validity of the will. Even taking as

true all evidence favorable to Rolando and resolving any doubts in his favor, given the scant

evidence presented by Rolando, we cannot say the circumstances of this case are so extraordinary

that allowing Veronica to prosecute her will contest would work a grave injustice. See Brink, 966

S.W.2d at 685.

        To defeat Veronica’s motion for summary judgment, Rolando was required to show a

genuine issue of material fact existed regarding his laches affirmative defense. See Marx, 474

S.W.3d at 378. Rolando did not show that he changed his position in good faith, and to his
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detriment, due to Veronica’s unreasonable delay in filing the will contest. Additionally, Rolando

failed to show this case presents extraordinary circumstances that would work a grave injustice.

Therefore, Rolando did not meet his burden of producing competent summary judgment evidence

sufficient to raise a fact issue on each element of his affirmative defense. See Brownlee v.

Brownlee, 665 S.W.2d 111, 112 (Tex. 1984). Accordingly, we conclude the trial court did not err

by granting Veronica’s motion for summary judgment and setting aside its previous order

admitting the will to probate.

                                          CONCLUSION

       For the foregoing reasons, the judgment of the trial court is affirmed.

                                                 Irene Rios, Justice




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