Lydia M. McLane v. Washington Mutual Bank F/K/A Washington Mutual Bank, FA

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 2-07-460-CV

LYDIA M. MCLANE APPELLANT

V.

WASHINGTON MUTUAL BANK F/K/A APPELLEE WASHINGTON MUTUAL BANK, FA

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FROM THE 158TH DISTRICT COURT OF DENTON COUNTY

MEMORANDUM OPINION1 ------------

On November 27, 2007, the trial court signed an order granting the home

equity foreclosure application filed by Appellee Washington Mutual Bank f/k/a

Washington Mutual Bank, FA, which sought pursuant to Texas Rule of Civil

Procedure 736 an order allowing the in rem foreclosure sale of Appellant Lydia M.

McLane’s property. McLane filed a motion for new trial on November 30, 2007, and

an amended motion for new trial on December 3, 2007. On December 20, 2007, the

1 See TEX. R. APP. P. 47.4. trial court denied McLane’s motion for new trial. On December 28, 2007, McLane

filed a notice of appeal challenging the trial court’s order denying her motion for new

trial, not the trial court’s order granting Washington Mutual’s home equity foreclosure

application.2 Washington Mutual subsequently filed a motion to dismiss McLane’s

appeal for lack of jurisdiction and a motion to extend the deadline to file its brief,

arguing that we should either dismiss McLane’s appeal because the granting or

denial of an application under rule 736 is not an appealable order or, alternatively,

enter an order extending the deadline to file its brief if we determine that we have

jurisdiction over the appeal.

Rule 736(8)(A) provides that the granting or denial of an application under rule

736 “is not an appealable order.” TEX. R. CIV. P. 736(8)(A). The order granting

Washington Mutual’s foreclosure application also states that it “is not appealable.”

Although the order that McLane specifically challenges on appeal is the trial court’s

order denying her motion for new trial, it is the trial court’s order granting Washington

Mutual’s foreclosure application that McLane challenged in her motion for new trial.

McLane may not circumvent the rule prohibiting an appeal of this matter by

challenging the denial of her motion for new trial instead of the order granting

2 McLane’s notice of appeal states that she appeals the trial court’s “ORDER DENYING RESPONDENT’S MOTION FOR NEW TRIAL in cause no. 2006-20335- 158 In re: Order for Foreclosure Concerning Fred L. Mclane and Lydia M. Mclane (“Respondents”) and 3814 Cortadera, Flower Mound, Texas 75028 (“property mailing address”) and Washington Mutual Bank FKA Washington Mutual Bank, FA (“Applicant”) by the trial judge . . . on December 20, 2007.”

2 Washington Mutual’s foreclosure application because the order that McLane

ultimately complains of is not appealable. Consequently, we lack jurisdiction over

this appeal. See Grant-Brooks v. FV-1, Inc., 176 S.W.3d 933, 933 (Tex.

App.—Dallas 2005, pet. denied) (granting appellee’s motion to dismiss for want of

jurisdiction appeal challenging trial court’s granting of appellee’s home equity

foreclosure application). We grant Washington Mutual’s motion to dismiss and

dismiss this appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a), 43.2(f).

Having dismissed this appeal for want of jurisdiction, Washington Mutual’s motion

to extend the deadline to file its brief is moot.

PER CURIAM

PANEL D: HOLMAN, GARDNER, and WALKER, JJ.

DELIVERED: July 17, 2008