                                                                           ACCEPTED
                                                                       03-15-00215-CV
                                                                               7575225
                                                            THIRD COURT OF APPEALS
                                                                       AUSTIN, TEXAS
                                                                10/28/2015 11:15:25 AM
                                                                     JEFFREY D. KYLE
                                                                                CLERK
               No. 03-15-00215-CV

               LENNY ACEVEDO
                  Appellant                            FILED IN
                                                3rd COURT OF APPEALS
                                                    AUSTIN, TEXAS
                       vs.                     10/28/2015 11:15:25 AM
                                                  JEFFREY D. KYLE
                                                        Clerk
FEDERAL NATIONAL MORTGAGE ASSOCIATION
            AKA FANNIE MAE
                Appellee

  Appeal from the County Court at Law, Number 2
               Travis County, Texas
     Trial Court Case No. C-1-CV-15-000869
      Honorable Eric M. Shepperd, Presiding

            BRIEF FOR APPELLANT


                             Lenny Acevedo
                             c/o 13276 Research Blvd., Ste.204
                             Austin, Texas 78750
                             Proceeding Pro Se
                             Identity of the Parties

Appellant
Lenny Acevedo
c/o 13276 Research Blvd., Ste. 204
Austin, Texas 78750

Proceeding Pro Se


Appellee

FEDERAL NATIONAL MORTGAGE ASSOCIATION
AKA FANNIE MAE

Counsel for Appellee

Mark Hopkins
Hopkins & Williams
12117 Bee Caves Road, Suite 260
Austin, Texas 78738




                                       ii
                                      Table of Contents

Identity of the Parties ...................................................................... .ii

Table ofContents ........................................................................... .iii

Table of Authorities ........................................................................ v

Statement of the Case ........................................................................ 1

Jurisdictional Statement. .................................................................. 1

Issues Presented ............................................................................. 2

    1. Whether the two-year limitations period of Texas Civil Practice and
    Remedies Code §16.003 bars Appellee's Forcible Detainer suit for
    possession of the property?

    2. When did the legal injury resulting in the accrual of action begin?

    3. Whether it is in harmony with the Texas Constitution and statutory law for a
    court to rule that, in practice, there is no statute of limitations conveyed by
    Texas Civil Practice and Remedies Code §16.003, because the statute of
    limitations begins anew each and every time a notice to vacate is sent to the
    same forcible detainer at the same address for the same cause but with a new
    date on the notice to vacate?

Statement of Facts .......................................................................... 2

Summary ofthe Argument ............................................................... .4

Argument .................................................................................... .4

       Legal I~ury Rule .................................................................... .4

       Single Action Rule ................................................................... 7

       Res Judicata ........................................................................... 9

       Forcible Detainer versus Tenant at Sufferance or Tenant in Arrears ...... 10



                                                 iii
               1st Instance ................................................................... 10

               2"d Instance ................................................................... .11

       Laches ............................................................................... .l3

       State of Repose ...................................................................... 13

Conclusion .................................................................................. 16

Certificate of Compliance ................................................................ .18

Certificate of Service ...................................................................... .18

Appendix .................................................................................... 19




                                                iv
                                     Table of Authorities

Cases

Caldwell v. Barnes, 975 S.W.2d 535 (Tex.l998) ...................................... 13

Doe v. Catholic Diocese ofEl Paso, 362 S.W.3d 707, 716
(Tex.App.-E1 Paso 2011, no pet.)(same) ............................................. 16

Federal Home Loan Mortgage Corporation, v. Trinh Pham, Katherine Crawford
& Gary Block, 449 S.W.3d 230, (Tex.App.-Houston [14th Dist.] 2014) ......... 9

Fernandi v. Strully, 35 N.J. 434, 173 A.2d 277, 285 (1961) ......................... 6

Galveston, h. & S.A. 647*647 Ry. Co. v. Dowe, 70 Tex. 5, 7 S.W. 368,
371 (1888) .............................. ························ .............................. 8

Gautier v. Franklin, 1 Tex. 734, 739 (1847) ............................................ 5

Gideon v. Johns-Manville Sales Corp., 76 1 F.2d 1129, 1136-37 (5 1h Cir. 1985) .... 8

Johnson & Higgins of Tex. ,Inc. v. Kenneco Energy, Inc.,
962 S.W.2d 507, 514 (Tex.1998) ........................................................ 3

Murphy v. Campbell, 964 S.W.2d 265, 273 (Tex.1997) .............................. 3

Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 828 (Tex.1990) ....... 5, 16

Provident Life & Accident Ins. Co.v Knott, 128 S.W.3d 211, 221 (Tex.2003) .... 3

Puentes v. Fannie Mae, 350 S.W.3d 732 (Tex.App.-Corpus Christi, 2010)

Pustejovsky v. Rapid-American Corp., 35 S.W.3d 643,646 (Tex. 2000) ....... 3, 7

Robinson v. Weaver, 550 S.W.2d 18, 20 (Tex.1977) .................................. 6

Rogers v. Ricane Enterprises, Inc., 772 S.W.2d 76,80 (Tex.1989) ................ 13

S. V v. R. V, 933 S.W.2d 1 (Tex.1996) .............................................. 5, 16

Via Net v. TIG Ins. Co., 211 S.W.3d 310,313 (Tex.2006) ............................ 4


                                                  v
Villarreal v. Wells Fargo Brokerage Servs., 315 S.W.3d 109,
(Tex.App.-Houston [1st Dist]. 2010) .................................................. 4

Willis v. Maverick, 760 S.W.2d 642 (Tex.1988) ........................................ 6

Zale Corp. v. Rosenbaum, 520 S.W.2d 889, 891 (Tex. 1975) ....................... 3

Texas Rules of Civil Procedure

Texas Civil Practice & Remedies Code §16.003 .......... ........................ 1, 2, 6

Texas Property Code Chapter 24 ......................................................... 1

Texas Constitution

Texas Constitution, Art. 1, Sec. 3 ..................................................... 1, 13

Texas Constiution, Art. l. Sec. 3a ....................................................... 1

Texas Constitution, Art. 1, Sec. 9 ................................................ .... 1, 13

Texas Constitution, Art. 5 ................................................................. 1

References

Developments in the Law-Statutes of Limitations, 63 Harv.L.Rev. 1177,
1200 (1950) .................................................................................. 6

Joseph P. Story, Conflicts of Law 482 .................................................. 5




                                                vi
                            STATEMENT OF THE CASE

       This appeal stems from a forcible detainer case which was heard de novo in

Travis County Court at Law #2 on April2, 2015. Judgment was awarded in favor

of Lenny Acevedo, and Fannie Mae appealed.

       The property was foreclosed on AprilS, 2011, and sold to Fannie Mae.

       The I st Notice to vacate was sent on April 11, 2011 1• Appellant asserts that

the accrual of action began no later than April 16, 2011, as he refused to leave, thus

creating a legal injury.

       At the forcible detainer hearing before Judge Eric Shepperd, Attorney James

Minerve credibly argued the legal injury rule. Please refer to R.R. Vol. 2, pages 6

through 12.

       Judge Eric Shepperd ruled against Mr. Minerve's filings and arguments.

       It is from Judge Shepperd's order that Appellant appeals.

                           JURISDICTIONAL STATEMENT

       This Court has jurisdiction of this appeal because Appellant appeals a final

judgment from the Travis County Court at Law #2. Texas Civil Practice &

Remedies Code § 16.003, Texas Property Code, Chapter 24, Texas Constitution,

Art. 1, Sec. 3, 3a and 9, and Art. 5.




'Notice to vacate, Clerk's Record. page 21
                                             1
                                ISSUES PRESENTED

    1. Whether the two-year limitations period of Texas Civil Practice and
    Remedies Code §16.003 bars Appellee's Forcible Detainer suit for
    possession of the property?

    2. When did the legal injury resulting in the accrual of action begin?

    3. Whether it is in harmony with the Texas Constitution and statutory law for a
    court to rule that, in practice, there is no statute of limitations conveyed by
    Texas Civil Practice and Remedies Code §16.003, because the statute of
    limitations begins anew each and every time a notice to vacate is sent to the
    same forcible detainer at the same address for the same cause but with a new
    date on the notice to vacate?


                               STATEMENT OF FACTS

      Lenny Acevedo purchased a home in 2003, and like millions of other

Americans was caught in the economic downturn, could no longer afford to pay his

mortgage payments, and the note and lien were subsequently foreclosed in 2011.

      Several forcible detainer suits were brought by Fannie Mae, the last one

culminating in a judgment in favor of Appellant. At the trial de novo, Judge

Shepperd ruled in favor of Fannie Mae.

      Appellant asserts that Fannie Mae languished in obtaining its judgment for

forcible detainer. The forcible detainer statute of limitations in Tex.Civ.Pra. &

Rem. Code §16.003(a) states a person must bring suit no later than 2 years after

the cause of action accrues.

      The cause of action accrued no later than April 16, 2011.



                                          2
      Fannie Mae is estopped from obtaining possession of the property by the 2

year statute oflimitations.

                          SUMMARY OF THE ARGUMENT

      "A cause of action accrues when the plaintiff knows or reasonably should

know that he had been legally injured by the alleged wrong, however slightly."

Murphy v. Campbell, 964 S.W.2d 265, 273 (Tex.1997).

      An Order Dismissing Plaintiffs Case as Barred by Expiration of Statute of

Limitations was signed on September23, 2014 2 by Judge Elena Diaz.

      "A defendant moving for summary judgment on the affirmative defense of

limitations must conclusively establish the date on which the limitations

commenced; that is, the date on which the cause of action accrued.            See

Pustejovsky v. Rapid-American Corp., 35 S.W.3d 643,646 (Tex. 2000); Zale Corp.

v. Rosenbaum, 520 S.W.2d 889, 891 (Tex. 1975). The determination of this date is

typically a question of law." Provident Life & Accident Ins. Co.v Knott, 128

S.W.3d 211, 221 (Tex.2003).

      As a general rule, a cause of action accrues, and the statute of limitations

begins to run, when facts come into existence that authorize a party to seek a

judicial remedy. Id. (citing Johnson & Higgins of Tex.,Inc. v. Kenneco Energy,

Inc., 962 S.W.2d 507, 514 (Tex.1998)). In most cases, claims accrue "when a


'Clerk's Record page 26
                                        3
wrongful act causes some legal injury."         Via Net v. TIG Ins. Co., 211 S.W.3d

310,313 (Tex.2006). Villarreal v. Wells Fargo Brokerage Servs., 315 S.W.3d 109,

(Tex.App.-Houston [1 ' 1 Dist]. 2010).

       When Barrett Daffin Fappier Turner & Engel, LLP acting for Federal

National Mortgage Association aka Fannie Mae sent its letter on April 11, 2011 3

entitled "NOTICE TO VACATE", it triggered the running of the two year statute

of limitations no later than April 16, 2011.

                                    ARGUMENT

                                  Legal Injury Rule

      Legal injury rule is a principle that a cause of action generally accrues when

a wrongful act causes some legal injury. Therefore, the statute of limitations on a

claim does not begin to run until the claimant has sustained some legally actionable

damage. In a forcible detainer case, the legal injury occurs after a foreclosure sale

vests the title in another party, thereby creating a tenant at sufferance, and that

party issues a 3 day notice to vacate to the tenant at sufferance and the tenant

refuses to vacate the premises. The two exceptions to the legal injury rule are: the

discovery rule, and fraudulent concealment.

      The Texas Supreme Court has issued many opinions concerning the legal

injury rule. Among them:


'Reporter's Record, Volume 3, Defendant's Exhibit 11
                                            4
       "We have long recognized the salutary purpose of statutes of limitations. In

Gautier v. Franklin, 1 Tex. 734, 739 (1847), we wrote that statutes of limitations

     are justly held "as statutes of repose to quiet titles, to suppress frauds,
     and to supply the deficiencies of proof arising from the ambiguity,
     obscurity and antiquity of transactions. They proceed upon the
     presumption that claims are extinguished, or ought to be held
     extinguished whenever they are not litigated in the proper forum at the
     prescribed period. They take away all solid ground of complaint,
     because they rest on the negligence or laches of the party himself; they
     quicken diligence by making it in some measure equivalent to right.."
     [Joseph P. Story, Conflicts of Law 482]. S. V. v. R. V., 933 S.W.2d 1
     (Tex.1996)"

S. V. v. R. V. goes on to say:

     "Limitations statutes afford plaintiffs what the legislature deems a
     reasonable time to present their claims and protect defendants and the
     courts from having to deal with cases in which the search for truth may
     be seriously impaired by the loss of evidence, whether by death or
     disappearance of witnesses, fading memories, disappearance of
     documents or otherwise. The purpose of a statute of limitations is to
     establish a point of repose and to terminate stale claims." Murray v. San
     Jacinto Agency, Inc., 800 S.W.2d 826,828 (Tex.l990).

The court further explained that the definition of accrual is not prescribed by

statute and is thus left to the courts. "As a rule , we have held that a cause of

action accrues when a when a wrongful act causes some legal injury, even if the

injury is not discovered until later, and even if all resulting damages have not yet

occurred."




                                          5
       In a case offorcible detainer, it is a fact that the legal injury begins when the

tenant at sufferance is given notice to vacate the premises, and the tenant refuses to

do so. There is no "discovery rule" which could apply to a forcible detainer action.

      Further, in forcible detainer actions, there is no fraudulent concealment

involved, so neither of the two exceptions which apply to the legal injury rule are

present in a forcible detainer case.

      In Willis v. Maverick, 760 S.W.2d 642 (Tex.1988), the Supreme Court again

dealt with the accrual of action in a two-year statute of limitations.

       "Our analysis of the two-year statute of limitations question begins
     with an examination of prior decisions of this court construing the
     statute's "accrual" language. The primary purpose of the statute of
     limitations is to compel the exercise of a right of action with a
     reasonable time so that the opposing party has a fair opportunity to
     defend while witnesses are available and the evidences is fresh in their
     minds. Robinson v. Weaver, 550 S.W.2d 18, 20 (Tex.1977). For a suit
     to be timely under the two-year statute, it must be brought within two
     years following the date the cause of action accrues. Tex.Civ.Prac.&
     Rem.Code Ann. §16.003(a) (Vernon 1986). The phrase "accrues"
     embodies a substantive law concept, and the courts are called upon to
     determine when a cause of action accrues and thus when the statute of
     limitations commences.       Developments in the Law-Statutes of
     Limitations, 63 Harv.L.Rev. 1177, 1200 (1950). This court has
     previously twice relied upon the following language from Fernandi v.
     Strully, 35 N.J. 434, 173 A.2d 277, 285 (1961):

      The question when a cause of action accrues is a judicial one, and to
     determine it in any particular case is to establish a general rule oflaw for
     a class of cases, which rule must be founded on reason and justice .... "




                                           6
      Nowhere in the Texas Supreme Court's opinions does it say that a cause of

action accrues and accrues and accrues again. It is logical to state that when a

cause of action accrut)s, it does not do so over and over and over.

      This would be analogous to filing an insurance claim for damage to a

covered item, having the claim denied, and to keep refiling the same claim over

and over until the insurance company finally gives up and pays it, no matter how

long after the incident that caused the damage.

      The reliance on this court's opinions to determine that a cause of action in a

forcible detainer case accrues each and every time a new 3 day notice to vacate is

served is nonsensical, illogical and is based on cases which assert there is no res

judicata in justice courts.      Res judicata and statutes of limitation are two

completely separate and diverse judicial issues, and one cannot be resolved by

relying on the facts of the other.

                                     Single Action Rule

      In Pustejovsky v. Rapid-American Corp. v. Pustejovsky, 35 S.W.3d 643,
(Tex.2000), the single action rule is discussed:

        "The case raises the question whether a plaintiff may bring separate
    actions for separate latent occupational diseases caused by exposure to
    asbestos. Specifically, we must decide whether the single action rule or the
    statute of limitations bars Henry Pustejovsky, who settle an asbestosis suit
    with one defendant in 1982, from bringing suit against different defendants
    twelve years later for asbestos-related cancer. The court of appeals
    affirmed, holding that under the single action rule, Pustejovsky's cause of
    action for cancer accrued, and limitations began to run, when he knew of
    the asbestosis. 980 S.W.2d 828, 833. We conclude, however, that neither
                                             7
   the single action rule nor the statute of limitations bars Pustejovsky's later
   claim for asbestos-related cancer. "
      "The single action rule, also known as the rule against splitting claims,
   provides a plaintiff one indivisible cause of action for all damages arising
   from a defendant's single breach of a legal duty. See Gideon v. Johns-
   Manville Sales Corp., 76 1 F.2d 1129, 1136-37 (5th Cir. 1985). Our
   jurisprudence "was designed to prevent more than one suit growing out of
   the same subject-matter of litigation; and our decisions from the first have
   steadily fostered this policy." Galveston, h. & S.A. 647*647 Ry. Co. v.
   Dowe, 70 Tex. 5, 7 S.W. 368, 371 (1888).

       "The single action rule, like limitations and res judicata, serves the
    purpose of giving defendants a point of repose. However, a defendant is in
    no different position with respect to an asbestosis plaintiff who may
    develop mesothelioma in the future than with an individual who contracts
    mesothelioma without ever suffering asbestosis. And the defendant's need
    for repose must be balanced against the plaintiffs need of an opportunity to
    seek redress for the gravest injuries, those culminating in wrongful death."

      If a suit involves the same issue, the same property, and the same date of

foreclosure sale, the court cannot construe a new set of circumstances exists

because a more current notice to vacate is issued. It is obvious the accrual of

action began when the first notice to vacate issued and the tenant at sufferance

refused to vacate the property. It is at that point in time when the tenant at

sufferance takes on the legal status of forcible detainer.         Unless there is an

agreement or some other written concession, the forcible detainer maintains that

legal status until he is dispossessed, his dispossession is barred by limitations, or he

reaches a state of repose. In this case, the new owner issued a notice to vacate,

which accrued on April 16, 2011 and who filed 3 separate FED actions and the

exact same issues and causes of action. The only thing that changed from law suit
                                           8
to law suit over a period of four years was the date on the each Notice to Vacate

letter.

          When Barrett Daffin Frappier Turner & Engel, LLP., acting for Fannie Mae

sent its letter on April 11, 2011 entitled "NOTICE TO VACATE", it triggered the

running the of statute of limitations no later than April 16, 2011.

                                      Res Judicata

          In its brief at county court, Fannie Mae used as its basis, Puentes v. Fannie

Mae, 350 S.W.3d 732 (Tex.App.-Corpus Christi, 2010) and Federal Home Loan

Mortgage Corporation, v. Trinh Pham, Katherine Crawford & Gary Block, 449

S.W.3d 230, (Tex.App.-Houston [141h Dist.] 2014), which are cases that assert

claims of res judicata. The statute of limitations was not pled in these cases and

the cases are irrelevant to the case before this court.

          What Puentes and Crawford state is that res judicata does not apply in cases

in the justice court. In other words, one can sue the same party as many times as

one wishes, always attempting to receive a favorable order.

          There was no "continuous tort" and the inference fails under its own weight.

The legal status of the forcible detainer does not change once a foreclosure sale

occurs and subsequent to the forcible detainer action, a 3 day notice to vacate

issues. The forcible detainer's legal status does not change because a new notice to

vacate issues. It remains the same from the first time he is served with a notice to


                                            9
vacate and refused, thus becoming a forcible detainer, and the trigger which

accrues the action.

         In the instant case, BAC Home Loans Servicing, LP, fka Countrywide Home

Loans Servicing LP foreclosed on April 5, 2011 4•       On April 11, 2011, Barrett

Daffin Frappier Turner & Engel, sent a certified letter to Lenny Acevedo, on behalf

of its client, Fannie Mae, entitled "NOTICE TO VACATE".             When Appellant

refused to vacate the premises, he became a forcible detainer and his legal status

has remained consistently the same since that time.

         When presented with another "Notice to Vacate", which was mailed on

November 12, 2014, his legal status and position had not changed. The November

12, 2014 letter is an exact duplicate of the 2011 letter with the exception of the

date.

        Forcible Detainer versus Tenant at Sufferance or Tenant in Arrears

         There is a marked difference between a landlord - tenant suit for eviction

and a landlord- forcible detainer suit for eviction. The differences are:

                                     1'1 Instance

         A tenant who is renting or leasing a property has an obligation to pay rent

and comply with the terms of the lease. When this tenant fails to comply, the




4
    Clerk's Record page 46
                                          10
landlord gives a 3 day notice to vacate before he files a suit for eviction suit in the

justice court of jurisdiction where the property is located.

      The tenant has the option, before judgment, to comply with the delinquent

terms of the lease, i.e., if the tenant is behind in rent and pays the delinquent

amount to the landlord before the landlord obtains an order to evict, (Writ of

Possession), the tenant is restored to his legal capacity and can remain in the

property.

      The landlord can file for forcible entry and detainer (FED), as often as the

tenant is not compliant. This is the reason that there is no res judicata in justice

cases. The legislature has not put a finite number on the times a landlord can sue

the same tenant.

                                     2"d Instance

      There are two rights involved with property ownership. One is right to title

and one is right to possession.

      A former homeowner who has lost his right to title of the property through

foreclosure has a different standing than he did when he held the right to title.

This person became a tenant at will or sufferance, when the lien on his property

was foreclosed.    He no longer holds title to the property and is a tenant at

sufferance. Once the former owner of the property is served with a 3 day notice to

vacate and refuses to leave the property, he becomes a forcible detainer. He does


                                          11
not have the option to pay back rent or to negotiate for better terms. He has lost his

right to the property title in its entirety. He is now a forcible detainer and retains

only the right to possession, which must be legally wrested from him. His status

does not change unless there is an agreement between the new owners or the two

parties have come to an agreement concerning the occupancy of the property.

       Once the demand to vacate the property within 3 days is made and the tenant

at sufferance refuses to vacate, and the tenant becomes a forcible detainer, the new

title holder of the property has 2 years from the date the former tenant becomes a

forcible detainer to oust the forcible detainer. Texas Civil Practice & Remedies

Code §16.003. This limitation has been a Texas Statute since the beginning of the

written law in Texas.

      It is folly to believe that in the case of a forcible detainer, a letter to vacate

with a newer date changes the status or the circumstances of the action. That

theory obviously applies in the I st Instance, but cannot be used in the   2nd   Instance.

The forcible detainer status did not begin anew with the arrival of a newly dated

demand to vacate. His status is exactly what it was once he received the first

notice to vacate, that of a forcible detainer. Ergo, to find that the receipt of a letter

reflecting a newer, later date somehow switched the forcible detainer to a tenant at

sufferance and upon opening the letter, he is magically transformed into a forcible

detainer anew is nonsensical.


                                           12
      In point of fact, given the plethora of mortgage company foreclosures and

the resulting evictions based on the foreclosure, it would behoove the Texas

Supreme Court to promulgate a rule which considers an eviction in a mortgage

company/forcible detainer case as final. Then, there would be no question about

res judicata or accrual of action in these instances. To treat the landlord/tenant

relationship the same as a mortgage company/forcible detainer case only leads to

confusion and ambiguity.

                                        Laches

      Appellant asserts that the 4th Forcible Detainer suit was barred by laches.

Appellant asserts that Fannie Mae exercised unreasonable delay in asserting its

legal or equitable rights, and Appellant, in good faith, relied on the 2 year statute of

limitations and the April 16, 2011 accrual of action and made determinations, such

as improvements and repairs, based on the change of position which occurred after

the two years. Rogers v. Ricane Enterprises, Inc., 772 S.W.2d 76, 80 (Tex.l989);

Caldwell v. Barnes, 975 S.W.2d 535 (Tex.1998).

                                   State of Repose

      The current opinions in this court have left former home owners prey to

continual, never ending litigation where forcible detainers suits are at issue.

      There is no question that the continual litigation could be construed to be a

violation of one's rights under Art. 1, Sec. 3, 3a and Sec. 9 of the Texas


                                           13
Constitution. To allow a forcible detainer action to continue three years, four years

or more after the foreclosure sale and first notice to vacate is a travesty of the law

that should not be allowed.

      What this court has said is: Take as many shots as you want for as long as

you need, until the defendant gets worn out or worn down, or the courts uphold

your actions. And what mortgage company, knowing of the court's decisions,

would ever pass up the opportunity to simply re-date the notice to vacate and reset

the clock? Certainly not Fannie Mae!

      This is an intolerable abuse of the court's discretion. The court has an

obligation to determine when an action accrued, and it shouldn't be a matter of

discretion to determine the date, it should be a matter of law. When did the action

begin which would allow a party to seek a legal remedy?

      According to case opinion, an action accrues once a wrongful act causes

some legal injury and the injured party has the right to sue. In the instant case, the

court cannot determine that the discovery rule applies or that the once the notice is

sent, the statute of limitations tolls. There can be no doubt that the action accrues

shortly after the notice to vacate is sent.      The mortgage company, after all,

foreclosed on the property and is well aware it must send the notice to vacate

before it can sue for forcible detainer. There is nothing to discover.




                                          14
       To opine that every single letter that is sent begins the accrual of action over

again is counter intuitive to the law. There would never be a state of repose for the

one who is continually being sued.

       The only justification the courts could cite would be, a new action has

begun. That would be in contradiction to the law. Again, it is the same action, the

same cause, the same foreclosure date, and the same plaintiff and defendant. How

can the courts justify this kind of reasoning? From Appellant's perspective, only

by applying unequal protection of the law, a violation of the Texas Constitution

and Appellant's inviolate right to equal protection and open and fair courts.

       Appellant asserts that by ruling that every new notice to vacate sent is a new

cause of action, the court is violating the spirit of the law and the rights embodied

in the Bill of Rights ofthe Texas Constitution.

       Three exact same suits, having the same cause of action and naming the

same parties each and every time is harassment and legal abuse.

       Had Appellant sued this many times on the same issue with the same

adverse results, he would be labeled a vexatious litigant even though the suits are

all in justice court.

       By ruling as this court has ruled, to allow a mortgage company innumerable

suits over a period of four years, to continually bring suit for the same issue from

the same starting point, is the very definition of legal abuse.


                                           15
                                  CONCLUSION

      Lenny Acevedo's home was sold at foreclosure sale on April 5, 2011. That

is a fact. At that point, he became a tenant at sufferance. Fannie Mae did not

suffer him for any length of time, as Fannie Mae issued a Demand to Vacate

Premises letter on April 11, 2011. When Appellant received the demand and

determined not to cede possession of the property, he became a forcible detainer.

On April 16, 2011, the action accrued, and Fannie Mae could seek redress in the

courts.

      A cause of action generally accrues at the time when facts come into

existence authorizing a claimant to seek a judicial remedy. Murray v. San Jacinto

Agency, Inc., 800 S.W.2d 826, 828 (Tex.1990). In Texas, a Plaintiff's cause of

action accrues, and the applicable limitations period starts to run, "when a

wrongful act causes some legal injury, even if the fact of injury is not discovered

until later, and even if all resulting damages have not yet occurred." S. V v. R. V,

933 S.W.2d 1, 4 (Tex.1996). See also Doe v. Catholic Diocese of El Paso, 362

S.W.3d 707, 716 (Tex.App.-El Paso 2011, no pet.)(same).

      On April 16, 2011, Appellant became a forcible detainer, and that wrongful

act caused a legal injury upon which Fannie Mae was authorized to seek a judicial

remedy, which it did seek, but was not awarded judgment until2015.




                                         16
      A party seeking possession of a property, files a suit for forcible detainer,

which is an eviction suit, which is what Fannie Mae did on May 5, 2011, Cause

No. 61039 in the Justice of the Peace Court, Precinct 2.

      The process is designed to be speedy and efficient. It not meant to be

delayed for a process of years.

      During a 4 year period, Farmie Mae filed three eviction suits against the

forcible detainer. Not once during the four years did Appellant's status change.

He remained, from April 16, 2011 till now, a forcible detainer. Because he had

been issued a demand to vacate, it was not necessary to send a second or third or

fourth demand. The facts had not changed. He was in the same legal status in

2014 as he was on Aprill6, 2011.

      Farmie Mae is or should be aware of the limitation statutes. It knew or

should have known that it had two years to legally obtain possession from

Appellant, yet, on several of the trials, it didn't appear, or was ruled against. No

one could attribute due diligence to those actions. Finally, after its 3rd suit and

trial, the judge, who carefully studied and understood the law of forcible detainer

ruled that Farmie Mae was barred by expiration of statute of limitations. Further,

Appellant asserts the 3rd suit was barred by laches.

      Judge Elea Diaz's opinion is the correct one, and Appellant asks this court to

uphold the long, proud history of Texas law and rule in Appellant's favor.


                                         17
                                             Respectfully submitted,



                                                ~~     / A~--eJL
                                               enny Acevedo
                                             c/o 13276 Research Blvd. Ste. 204
                                             Austin, Texas 78750



                         CERTIFICATE OF COMPLIANCE

      I hereby certify that this document is typed in Times New Roman 14 point

type and contains 4355 words.




            I, the undersigned, hereby certify that a true and correct copy of
Appellant's Brief was sent by U. S. Postal Service on October 2Z, 2015 to:

      Mark Hopkins
      Hopkins & Williams
      12117 Bee Caves Road, Suite 260
      Austin, Texas 78738




                                        18
          APPENDIX

Judgment from Judge Eric Shepperd

          June 1, 2015




               19
                                 CAUSE NO. C-1-CV-15-000869
                                                                                                     ,
FEDERAL NATIONAL MORTGAGE
ASSOCIATION AI/KIA FANNIE MAE,
                                                   §              IN THE COf'i'g              cimJ\1
    Plaintiff,                                     :§                              ~gl         ;g ~
                                                                                   g~iij       I     0
v.                                                 §                               !i-< C:l    0'\   "
                                                                                   :<P~        •:z   ;;o
                                                   §                          Am~                    m
LENNY ACEVEDO AND ALL                              §                         (~w'Ro.£
OTHER OCCUPANTS OF 1108                            §                           ~-~ r~
FOX SPARROW COVE,
PFLUGERVILLE, TEXAS 78660
                                                   §
                                                   §
                                                                     '\~~~ '"<'V/ :)
                                                                     ' ~~·~,,·v
                                                   §                   '\""              ~
        Defendant(s),
                                                   §           ~~V.,\~00{,TEXAS
                                         JUDGMENv::::l           ~\)
        Plaintiff, Federal National Mortgage   Associatio~ ~a Fanrtfe~¥-'Piaintiff"), appeared
through its attorney of record.     Defendan~'\~~~)vbefendant") and all other
                                          //.~,~~
occupants of II 08 Fox Sparrow Cove,   P\g0/~60, appeared through counsel. The
Court, having reviewed the     pl/l~~idered the testimony, exhibits and all other
                       ~~tiff~dtlol to tho re>of oo"""
relev.mt """""'·;,of tho

        IT IS ORDERE •"tii8.'tPI~~entitled to possession of the premises described in

Plaintiffs Original Pe   ti~~ible D~iner, and have restitution, for which let writ issue, of
the premises       co.~~s~ 108 Fox Sparrow Cove, Pflugerville, Texas 78660, and
~·zy~?
 ~'f,~UQCK          C, KUEMPEL TRACT PHASE 3, SECTION FIVE, AN
        ~t~~dNJN TRAVIS COUNTY, TEXAS, ACCORDING TO THE PLAT
            JORD IN VOLUME 2002, PAGE 318, TRAVIS COUNTY, TEXAS.

              S FURTHER ORDERED that Plaintiff have and recover from Defendants

reasonable attorney's fees at the trial court level in the amount of $1,000.00, which may be

collected from the bond posted by defendant, if any, payable immediately by the Clerk of the

Court upon presentation of this order, together with reasonable attorney's fees if the case is

JUDGMENT
H609·15/ Acevedo                                                          Page 1
unsuccessfully appealed to the Courts of Appeal in the amount of $2,000.00, reasonable

attorney's fees if the case is unsuccessfully appealed on writ of error to the Supreme Court of

Texas in the amount of $3 ,500.00, and if writ is granted by the Supreme Court but the appeal is

unsuccessful, reasonable attorney fees in the amount of $2,500.00.

        IT IS FURTHER ORDERED that plaintiff recover from the Deftnaant(s) cost?f

court, for which let execution issue.                                     r- "'"'· ::/
                                                                                    /?      "'   '/ J

                                                                          ~,E~.:;;~~
        SIGNEDthis~ayof
                  "J 1 / ]              ¥'
        ALL RELIEF NOT EXPRESSLY GRANTED HEREIN IS
                                            ·~~·
                                            .           2015. \ , ,
                                                              ~ "\.
                                                                                v /~f'
                                                                                     >,"'
                                                                                                  ·"



                                                        ,._,_"v., '' \. ~./
                                                       ~-~                "\.   -~
                                                                                      )




                                                       fL.~          ""     v




JUDGMENT
H609·15/ Acevedo                                                                 Page2
