Opinion
NO. 01-20-00037-CV
03-10-2020
DEBORAH DURST, Appellant v. COMMONS AT WESTBRAE HOMEOWNERS ASSOCIATION, INC., Appellee
On Appeal from the 269th District Court Harris County, Texas
Trial Court Case No. 2019-63360
MEMORANDUM OPINION
Appellee, Commons at Westbrae Homeowners Association, has filed a motion seeking dismissal of the appeal filed by appellant, Deborah Durst. 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 grant the motion.
On September 5, 2019, appellee filed an "Application for Expedited Foreclosure Proceeding Pursuant to Rule 736 of the Texas Rules of Civil Procedure," seeking an expedited order authorizing the foreclosure of appellant's property for non-payment of certain assessments, interest, late fees, costs and reasonable attorney's fees, all of which "are secured by a lien in favor of the [appellee] against the Property." See TEX. R. CIV. P. 736.1; see also TEX. R. CIV. P. 735.1; TEX. PROP. CODE § 209.0092. On November 18, 2019, the trial court signed a "Default Order to Proceed with Notice of Foreclosure Sale and Foreclosure Sale," ordering that appellee could proceed with the foreclosure. See TEX. R. CIV. P. 736.7. Appellant filed a notice of appeal on January 13, 2020 from the trial court's order.
On January 17, 2020, appellee filed a motion to dismiss the appeal for lack of jurisdiction. Appellant did not file a response. In its motion, appellee asserts the appeal should be dismissed because "[a]ny order entered under Tex. R. Civ. Pro. 736 is expressly non-appealable as provided by the Rule itself." Appellee is correct that an order granting or denying a Rule 736 application for foreclosure may not be appealed to this Court. See TEX. R. APP. P. 736.8(c) ("[A]n order granting or denying the [Rule 736] 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 filed in a court of competent jurisdiction."); see also Thweatt v. Deutsche Bank Nat'l Trust Co., No. 01-14-00261-CV, 2014 WL 2538691, at *1 (Tex. App.—Houston [1st Dist.] June 5, 2014, no pet.) (mem. op).
Accordingly, we grant appellee's motion and dismiss the appeal for want of jurisdiction. See TEX. R. CIV. P. 736.8(c); Johnson v. Residential Funding Real 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.) ("Because [appellant] appeals a Rule 736 order, we have no discretion to do anything but dismiss the appeal."). We dismiss any pending motions as moot.
PER CURIAM Panel consists of Justices Goodman, Landau, and Countiss.