robert-j-thweatt-v-deutsche-bank-national-trust-compay-as-trustee-for ( 2014 )

Opinion issued June 5, 2014
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-14-00261-CV
———————————
ROBERT J. THWEATT, Appellant
V.
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR
AMERIQUEST MORTGAGE SECURITIES INC., ASSET-BACKED PASS-
THROUGH CERTIFICATES, SERIES 2004-R8, Appellee
On Appeal from the 23rd District Court
Brazoria County, Texas
Trial Court Case No. 75076-CV
MEMORANDUM OPINION
Appellee, Deutsche Bank National Trust Company, has filed a motion
seeking dismissal of appellant, Robert J. Thweatt’s, appeal. More than 10 days
have elapsed since appellee filed its motion to dismiss the appeal, and no response
has been filed. See TEX. R. APP. P. 10.3(a). We will grant the motion.
On November 27, 2013, appellee applied to the trial court for an order
allowing the foreclosure of a home equity lien, pursuant to Texas Rule of Civil
Procedure 736. See TEX. R. CIV. P. 735, 736.1. On March 24, 2014, the trial court
entered a “Home Equity Foreclosure Order,” granting the application. See TEX. R.
CIV. P. 736.8(a). Appellant filed a notice of appeal of the trial court’s order on
March 31, 2014.
On April 29, 2014, appellee filed its “Amended Motion to Dismiss for Want
of Jurisdiction,” requesting dismissal of this appeal. In the motion, appellee
contends that the appeal should be dismissed because Texas Rule of Civil
Procedure “736 expressly disallows appeals from orders allowing foreclosure
entered under that Rule.”
Under Texas Rule of Civil Procedure 736.8, “[a]n order granting or denying
the application is not subject to a motion for rehearing, new trial, bill of review, or
appeal. Any challenge to a Rule 736 order must be made in a suit filed in a
separate, independent, original proceeding in a court of competent jurisdiction.”
TEX. R. CIV. P. 736.8(c).
Accordingly, we grant appellant’s motion and dismiss the appeal for want of
jurisdiction. See TEX. R. CIV. P. 736.8(c); Johnson v. Residential Funding Real
2
Estate Holdings, LLC, No. 01-10-00287-CV, 2011 WL 2418516, at *1 (Tex.
App.—Houston [1st Dist.] May 26, 2011, no pet.) (mem. op.); Kelso v. CIT
Grp./Consumer Fin., Inc., No. 01-05-00671-CV, 2005 WL 3118182, at *1 (Tex.
App.—Houston [1st Dist.] Nov. 23, 2005, no pet.) (mem. op.); see also In re
Casterline, No. 13-13-00708-CV, 2014 WL 217285, at *5 (Tex. App.—Corpus
Christi Jan. 15, 2014, orig. proceeding) (noting that “courts routinely dismissed
appeals brought under the predecessor rule” to current Rule 736.8). We dismiss
any pending motions as moot.
PER CURIAM
Panel consists of Chief Justice Radack and Justices Higley and Brown.
3