law-laches due diligence statutes of limitations                                           


“Two essential elements of laches are (1) unreasonable delay by one having legal or equitable rights in
asserting them; and (2) a good faith change of position by another to his detriment because of the delay.”
re Jindal Saw Ltd., 264 S.W.3d 755, 760 (Tex. App.—Houston [1st Dist.] 2008, orig. proceeding). (quoting
Rogers v. Ricane Enters., 772 S.W.2d 76, 80 (Tex. 1989)). “As a general rule, laches is inappropriate when
the controversy is one to which a statute of limitations applies.” Graves v. Diehl, 958 S.W.2d 468, 473 (Tex.
App.—Houston [14th Dist.] 1997, no pet.).

Laches is an affirmative defense that must be pled and proved by the party asserting the defense. TEX. R.
CIV.P. 94;  Jim Rutherford Invs., Inc. v. Terramar Beach Cmty. Ass’n, 25 S.W.3d 845, 852 (Tex. App.—
Houston [14th Dist.] 2000, pet. denied).  An affirmative defense that is not specifically pled is waived. TEX. R.
CIV. P. 94; Kinnear v. Tex. Comm’n on Human Rights ex rel. Hale, 14 S.W.3d 299, 300 (Tex. 2000).  

Lyle v. Guinn Revocable Trust (Tex.App.- Houston [1st Dist.] Mar. 11, 2010)(Keyes)
oil and gas law, assignment of oil and gas lease, statute of limitations, laches, statute of frauds)
Lyle also argues that the Japhet heirs’ claims are barred by the statute of frauds. The statute of frauds
requires that certain agreements be in writing and that they be signed by the person to be charged with the
promise or agreement to be enforceable. See Tex. Bus. & Com. Code Ann. § 26.01 (Vernon 2009).
Agreements to assign an interest in an oil and gas leasehold estate are subject to the requirements of the
statute of frauds. Westland Oil, 637 S.W.2d at 908. As we have already discussed, the 1919 Assignment was
in writing and was signed by all of the parties involved in that transfer of the lease. Lyle subsequently signed
the 1991 assignment in which Hablinski transferred a portion of that lease to him with the express statement
that the assignment was made subject to the 1919 Assignment. This satisfies the statute of frauds.
We conclude that the Japhet heirs’ claims are not barred by the statute of frauds.
Justice Keyes     
Before Justices Keyes, Sharp and Massengale   
01-09-00081-CV  Kenneth R. Lyle and Warbonnet Exploration Company v. Jane Guinn Revocable Trust,
Perry B. Menking, Jr. Investment Management Trust, Lynn Sahin, Kate Lutken Bruno Grantor Trust, Wesley
Lutken Grantor Trust, Daniel R. Japhet, Jr., Gretchen Japhet, Susan Japhet Scotty and Larken Japhet
Appeal from 149th District Court of Brazoria County
Trial Court Judge: The Honorable Robert E. May   
Here, Lyle has presented no evidence or argument that laches should apply to the Japhet heirs’ claims to
recover the royalty interest or that he made “a good faith change of position” to his detriment because of the

Laches Finally, GAO argues relators' petition should be denied on the equitable ground of laches.  See
Rivercenter Assocs. v. Rivera, 858 S.W.2d 366, 367 (Tex. 1993).  GAO asserts relators have slumbered on
their rights because they waited over a year after filing their answer to serve the first of their third-party
subpoenas, they did not seek a continuance of the summary judgment hearing for purposes of pursuing
third-party discovery, failed to move to compel any responses to the third-party subpoenas, and  waited until
shortly before the end of the discovery period to file this original proceeding.  In re Liberty Mutual Ins. Co.,
No. 14-09-00086-CV (Tex.App.- Houston [14th Dist.] Feb. 24, 2009)(Seymore)
discovery mandamus granted, laches argument overruled, no lack of diligence)

GAO cites to the supreme court's decision in Rivercenter Associates in support of this argument.  However,
Rivercenter Associates involved the application of laches when a relator unjustifiably delays seeking
mandamus relief.  858 S.W.2d at 367.  Such delay in seeking mandamus relief is not at issue here.  In any
event, when the trial court granted GAO's motion for partial summary judgment, on November 12, 2008,
neither GAO nor relators had taken any depositions.  Indeed, although the discovery period was set to close
on February 2, 2009, GAO waited until January 16, 2009, to unilaterally notice depositions for eighteen
witnesses.  Moreover, discovery on GAO's bad faith claims necessarily follows the trial court's ruling that
GAO's Hurricane Katrina-related claims are covered by the policies.  See Stoker, 903 S.W.2d at 341 (“As a
general rule there can be no claim for bad faith when an insurer has promptly denied a claim that is in fact
not covered.").  We find no lack of diligence on the part of relators to justify the denial of their petition for writ
of mandamus on equitable grounds.   

TEXAS COURT OF APPEALS OPINIONS  -->  laches as an equitable doctrine to bar enforcement