Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the County Court at Law No. 2 of Williamson
Chief Justice Valdez and Justices Contreras and Hinojosa.
MEMORANDUM OPINION 
LETICIA HINOJOSA Justice.
and Lloyd Lamere (the Lameres) appeal the trial court's
judgment in a forcible-detainer action granting Deutsche Bank
National Trust Company as Trustee for Ameriquest Mortgage
Securities Inc. Asset Backed Pass-Through Certificates Series
2004-FR1 (Deutsche Bank) a writ of possession for real
property located in Round Rock, Texas (the property). In one
issue, the Lameres argue that Deutsche Bank's suit was
barred by the applicable two-year statute of limitations.
See Tex. Civ. Prac. & Rem. Code Ann. §
16.003(a) (West, Westlaw through 2017 1st C.S.) (providing a
two-year limitations period for forcible-detainer actions).
Bank purchased the subject property at a foreclosure sale on
August 7, 2012. A representative for Deutsche Bank served the
Lameres with a notice to vacate the property on November 21,
2015. See Tex. Prop. Code Ann. § 24.005(b)
(West, Westlaw through 2017 1st C.S.) (requiring notice to
vacate premises prior to filing a forcible-detainer suit).
The Lameres refused to vacate the property, and Deutsche Bank
filed a forcible-detainer action on November 30, 2015 in the
justice court. The justice court granted possession of the
property to Deutsche Bank, and the Lameres appealed the
judgment to the county court at law for a trial de novo.
See Tex. R. Civ. P. 506.3. In their pleadings before
the justice court and trial court, the Lameres asserted
limitations as an affirmative defense.
case proceeded to a bench trial, where the Lameres argued
that the action was barred by the applicable two-year statute
of limitations. The Lameres asserted that Deutsche Bank
pursued an earlier forcible-detainer action in the justice
court to a favorable judgment in October of 2012. However,
the Lameres did not introduce any evidence pertaining to the
earlier case or ask the trial court to judicially notice the
prior judgment. In response, Deutsche Bank argued that a new
forcible-detainer action accrues each time a tenant refuses
to vacate after receiving proper notice. The trial court
rendered judgment granting Deutsch Bank possession of the
property. This appeal followed.
Standard of Review and Applicable Law
is an affirmative defense, and a defendant asserting
limitations must plead, prove, and secure findings on that
issue. Tex.R.Civ.P. 94; Woods v. William M. Mercer,
Inc., 769 S.W.2d 515, 517 (Tex. 1988); Chacon v.
Andrews Distrib. Co., 295 S.W.3d 715, 721 (Tex.
App.-Corpus Christi 2009, pet. denied). Texas Civil Practice
and Remedies Code section 16.003(a) provides that a
forcible-detainer action must be brought no later than two
years after the date the cause of action accrues. Tex. Civ.
Prac. & Rem. Code Ann. § 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). When a cause of
action accrues is a legal question we review de novo.
Trelltex, Inc. v. Intecx, L.L.C., 494 S.W.3d 781, 787
(Tex. App.-Houston [14th Dist.] 2016, no pet.).
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). "[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 Ann. §
24.002(a) (West, Westlaw through 2017 1st C.S.)). 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. Ann. § 24.002(b)).
The judgment in a forcible-detainer action is a final
determination only of the right to immediate possession.
Coinmach Corp., 417 S.W.3d at 919.
Lameres argue that the forcible-detainer action "accrued
in 2012 when the initial notice to vacate was issued[.]"
The Lameres set out in their statement of facts that Deutsche
Bank initially filed suit in October of 2012 and was granted
"a judgment for eviction" on November 5, 2012.
However, the Lameres provide no citation to the appellate
record for this proposition. See Tex. R. App. P.
38.1(g), (i). Further, having conducted our own independent
review of the record, we find no evidence of the earlier
suit. Therefore, we cannot rely on the Lamere's bare
assertion that there was a 2012 notice to vacate and
corresponding judgment. See In re M.S., 115 S.W.3d
534, 546 (Tex. 2003) (noting that an appellate court
"may only consider the record presented to it").
Finally, the trial court did not take judicial notice of any
2012 proceedings; but even if it did, to the extent that
another court's judgment is the proper subject of
judicial notice, a party must still provide sufficient proof
to those records. See Freedom Commc'ns, Inc. v.
Coronado, 372 S.W.3d 621, 623 (Tex. 2012). The Lameres
have failed to do so.
we were to accept the Lameres' unsupported factual
assertions, we would not conclude that Deutsche Bank's
2015 forcible-detainer action is barred by limitations. The
Lameres do not dispute that Deutsche Bank filed the present
action within two years of serving the latest notice to
vacate. Nevertheless, they argue that we must look to the
first notice to vacate served in 2012 as the date of accrual
for the current forcible-detainer action. Deutsche Bank
responds that a new and independent forcible-detainer action
arose in ...