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