Summary
concluding that limitations did not bar action for forcible detainer that was brought within two years of subsequent notice to vacate and affirming judgment granting writ of possession
Summary of this case from Standiford v. CitiMortgage, Inc.Opinion
NO. 03-15-00362-CV
03-18-2016
Colette Custer, Appellant v. Wells Fargo Bank, N.A., Appellee
FROM THE COUNTY COURT AT LAW NO. 1 OF TRAVIS COUNTY
NO. C-1-CV-15-000426, HONORABLE TODD T. WONG, JUDGE PRESIDINGMEMORANDUM OPINION
Colette Custer appeals the county court at law's judgment in a forcible-detainer action denying her plea to the jurisdiction and granting Wells Fargo Bank, N.A. (Wells Fargo) a writ of possession of real property located in Pflugerville, Texas. For the following reasons, we will affirm.
BACKGROUND
This appeal concerns certain real property (the Property) that Custer once owned. Custer defaulted on a mortgage and lost title to the Property in a foreclosure sale conducted pursuant to a deed of trust securing the mortgage. Wells Fargo purchased the Property at the foreclosure sale on October 4, 2011. Custer continued to occupy the Property and became a tenant at sufferance pursuant to the terms of the deed of trust:
If the Property is sold pursuant to this [provision for foreclosure], Borrower or any person holding possession of the Property through Borrower shall immediately surrender possession of the Property to the purchaser at that sale. If possession is not
surrendered, Borrower or such person shall be a tenant at sufferance and may be removed by writ of possession.
On October 12, 2011, Wells Fargo sent Custer a demand for possession and notice to vacate the Property. Custer did not comply, and Wells Fargo proceeded to seek a writ of possession through four forcible-detainer actions. The first action was dismissed without prejudice for want of prosecution in December 2011. Wells Fargo obtained a default judgment in a second forcible-detainer action on June 4, 2013, but did not take possession at this time. Wells Fargo sent another demand for possession and notice to vacate on July 2, 2014, followed by a third forcible-detainer action, which it nonsuited without prejudice on September 18, 2014.
On September 9, 2014, Wells Fargo filed a fourth forcible-detainer action that eventually became the subject of this appeal. Custer filed a plea to the jurisdiction, contending that the two-year statute of limitations enumerated in Texas Civil Practice and Remedies Code Section 16.003(a) had expired. According to Custer, the statute of limitations commenced when she refused to vacate the Property in response to Wells Fargo's initial demand and notice mailed in 2011. Wells Fargo argued that the statute of limitations for this fourth forcible-detainer action did not commence until Custer refused to comply with its most recent demand and notice mailed in 2014.
The justice court dismissed the case, finding that the two-year statute of limitations began to run upon Custer's failure to comply with Wells Fargo's initial demand and notice. Wells Fargo appealed to the county court at law, and Custer again filed a plea to the jurisdiction. The county court at law heard the case de novo, denied Custer's plea to the jurisdiction, and granted Wells Fargo's writ of possession. Custer then perfected her appeal to this Court.
DISCUSSION
Custer brings three issues in this appeal: (1) whether the two-year statute of limitations enumerated in Texas Civil Practice and Remedies Code Section 16.003(a) bars Wells Fargo's forcible-detainer action; (2) whether Wells Fargo's forcible-detainer cause of action accrued before 2014; and (3) whether it would violate the Constitution of the State of Texas if a new forcible-detainer action accrues every time a landlord makes a new demand and notice and the tenant refuses to vacate. Custer also raises the affirmative defense of laches, but does not formally bring this as an issue on appeal.
Custer's briefing to this Court contains a discussion of res judicata. However, she does not raise this as an issue on appeal or explicitly contend that the fourth forcible-detainer action is barred by res judicata. Rather, she argues that the cases Wells Fargo relied upon below are distinguishable because they involved res judicata issues instead of statute-of-limitations issues. To the extent that Custer's brief could be read to raise the affirmative defense of res judicata, we conclude that she waived this claim by failing to adequately brief it. See Tex. R. App. P. 38.1(i) ("The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and the record."). --------
Wells Fargo contends that the two-year statute of limitations does not bar its September 9, 2014 forcible-detainer action because that action accrued when Custer failed to comply with the 2014 demand and notice. Wells Fargo further contends that Custer waived her constitutional claims and laches defense by failing to raise them below and failing to adequately brief them. See Tex. R. App. P. 33.1, 38.1(i).
We conclude that a new cause of action accrued upon Custer's refusal to comply with the 2014 demand and notice. Consequently, Section 16.003(a) did not bar Wells Fargo from bringing its fourth forcible-detainer lawsuit two months later. We further conclude that Custer waived her other arguments. We therefore affirm.
Forcible-Detainer Actions
"[A] tenant commits a forcible detainer by refusing to surrender possession of real property after the landlord has lawfully terminated the tenant's right to possession." Kennedy v. Andover Place Apartments, 203 S.W.3d 495, 497 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (citing Tex. Prop. Code § 24.002(a)). Prior to bringing a forcible-detainer action, the landlord must make a written demand for possession and notice to vacate. Id. (citing Tex. Prop. Code § 24.002(b)). A forcible-detainer action is a special proceeding designed to be a speedy, simple, and inexpensive means to obtain immediate possession of the property. Coinmach Corp. v. Aspenwood Apartment Corp., 417 S.W.3d 909, 919 (Tex. 2013); see also Tex. R. Civ. P. 510.3(e). The only relevant issue is "who has the right to possess the property now?" Puentes v. Fannie Mae, 350 S.W.3d 732, 738 (Tex. App.—El Paso 2011, pet. dism'd) (emphasis in original).
Standard of Review
Custer is appealing the county court at law's order granting the writ of possession and denying her plea to the jurisdiction. Her claims all stem from the contention that the statute of limitations has run. We therefore apply the de novo standard of review, affording no deference to the lower courts' rulings. See Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). De novo review is also appropriate because this appeal can be distilled to a single question of law: when did Wells Fargo's cause of action for forcible detainer accrue for the purpose of calculating the statute of limitations? See Exxon Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194, 202 (Tex. 2011) ("When a cause of action accrues is normally a question of law."); R.B. Underwood, Inc. v. State, 23 S.W.3d 468, 470 (Tex. App.—Houston [1st Dist.] 2000, pet. denied.) ("We review questions of law de novo and without deference to the lower court's conclusion.").
Statute of Limitations
Texas Civil Practice and Remedies Code Section 16.003(a) provides that a forcible-detainer action must be brought not later than two years after the date the cause of action accrues. See Tex. Civ. Prac. & Rem. Code § 16.003(a). "For the purposes of the application of limitation statutes, a cause of action can generally be said to accrue when the wrongful act effects an injury." Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex. 1990). A party that purchases real property at a foreclosure sale acquires the right to possess that property. See Coinmach Corp., 417 S.W.3d at 918. However, the new owner's ability to recover possession of the property through a forcible-detainer action does not arise—and the statute of limitations does not begin to run—until possession has been demanded and refused. Jones v. American Fed. Bank, F.S.B., No. 05-91-00634-CV, 1992 WL 32961, at *2 (Tex. App.—Dallas Jan. 30, 1992, writ dism'd w.o.j.) (not designated for publication).
Custer insists that the statute of limitations began to run when she refused to comply with Wells Fargo's initial 2011 demand and notice. Wells Fargo contends that Custer's refusal to comply with its subsequent 2014 demand and notice constituted a new injury, allowing it to bring a new forcible-detainer action anytime within the following two years. Based on precedent from this Court and others, we agree with Wells Fargo's contention.
In recent years, this Court has held that a new "forcible-detainer action accrues each time a person refuses to surrender possession of real property after a person entitled to possession delivers proper written notification to vacate." Montenegro v. Wells Fargo Bank N.A., No. 03-13-00123-CV, 2015 WL 3543055, at *4 (Tex. App.—Austin June 3, 2015, no pet. h.) (mem. op.); Massaad v. Wells Fargo Bank Nat'l Ass'n, No. 03-14-00202-CV, 2015 WL 410514, at *1 (Tex. App.—Austin Jan. 30, 2015, no pet.) (mem. op.) (citing Federal Home Loan Mortg. Corp. v. Pham, 449 S.W.3d 230, 235 (Tex. App.—Houston [14th Dist.] 2014, no pet.) ("[A] new and independent cause of action for forcible detainer arises each time a person refuses to surrender possession of real property after a person entitled to possession of the property delivers a proper written notice to vacate.")). These cases discuss accrual in the context of res judicata, but are equally applicable to the question of when an injury occurs and a cause of action accrues for the purpose of calculating the statute of limitations. Therefore, we conclude that a new forcible-detainer action accrued when Custer refused to comply with Wells Fargo's 2014 demand and notice and that the statute of limitations for this new action commenced at the same time. Because Wells Fargo brought its fourth forcible-detainer action within two years, it was not barred by Texas Civil Practice and Remedies Code Section 16.003(a). We overrule Custer's first and second issues.
Constitutional Arguments
Custer contends that a ruling for Wells Fargo would leave people in her position subject to an endless barrage of litigation because property owners could extend the statute of limitations for forcible-detainer actions indefinitely by making new demands for possession and notices to vacate. According to Custer, this violates the Constitution of the State of Texas. She cites to Article 1, Sections 3, 3a, and 9. She does not, however, explain how this scenario violates these particular constitutional provisions and has, therefore, waived this argument by failing to adequately brief it. See Tex. R. App. P. 38.1(i). Additionally, there is nothing in the record indicating that she raised any constitutional argument below. We therefore conclude that Custer failed to preserve her constitutional arguments. See Tex. R. App. P. 33.1; City of San Antonio v. Schautteet, 706 S.W.2d 103, 104 (Tex. 1986) (even constitutional challenges are waived when appellant fails to raise them before trial court). We overrule Custer's third issue.
Laches
Laches is an affirmative defense that must be pled and preserved below in order to be considered on appeal. See Hill v. Tx-An Anesthesia Mgmt. LLP, 443 S.W.3d 416, 422-23 (Tex. App.—Dallas 2014, no pet.) (citing Tex. R. App. P. 33.1(a)). There is no indication in the record that Custer raised the issue of laches below. We therefore conclude that Custer waived this defense.
CONCLUSION
For the foregoing reasons, we affirm the county court at law's judgment denying Custer's plea to the jurisdiction and granting Wells Fargo's writ of possession.
/s/_________
Cindy Olson Bourland, Justice Before Justices Puryear, Goodwin, and Bourland Affirmed Filed: March 18, 2016