


Opinion issued November 23, 2005







In The
Court of Appeals
For The
First District of Texas
____________

NO. 01-05-00671-CV
____________

KENNETH J. KELSO, Appellant

V.

CIT GROUP/CONSUMER FINANCE, INC., Appellee




On Appeal from the 295th District Court
Harris County, Texas
Trial Court Cause No. 2005-20216




MEMORANDUM  OPINION
          Appellee, CIT Group/Consumer Finance, Inc., requests dismissal of appellant,
Kenneth J. Kelso’s, appeal and damages for the filing of a frivolous appeal.  More
than 10 days has elapsed since appellee filed its motion to dismiss the appeal, and
appellant, appearing pro se, has filed no response.
          On March 24, 2005, appellee applied to the trial court for an order of
foreclosure of a home equity lien, pursuant to Texas Rule of Civil Procedure 736.  As
the basis for the foreclosure, appellee alleged appellant defaulted under the Deed of
Trust or Security Agreement by failing to pay the monthly payment that came due
December 13, 2003 and every monthly installment that came due thereafter.  The
clerk’s record does not show that appellant answered appellee’s application.  On May
26, 2005, the trial court granted the application in favor of appellee, despite the fact
that the notice of submission states that the application will be considered June 20,
2005.  Appellee sold the property at a foreclosure sale on August 2, 2005, and is now
its record title owner.
          Appellant filed no post-judgment motions.  He filed his notice of appeal on
July 8, 2005, and his motion to extend the time for filing his notice of appeal on July
11, 2005.  We granted the motion.  Appellant’s brief was due to be filed on August
29, 2005.  On that date, appellant filed a motion to extend the time by 30 days to file
his brief, stating he needed the extension to provide time to hire an attorney.  We
granted appellant’s motion, extending the deadline for filing the brief to October 30,
2005.  Appellant has not filed his brief, or requested another extension of time to do
so.
          On October 20, 2005, appellee filed the motion to dismiss the appeal now
before us.  In it appellee asserts that the appeal should be dismissed because it is
unappealable by virtue of Texas Rule of Civil Procedure 736(8)(A), which, in
relevant part, provides as follows: “The granting or denial of the application is not an
appealable order.”  Tex. R. Civ. P. 736(8)(A) (Vernon Supp. 2005).  We agree and
dismiss the appeal for want of jurisdiction.
          Further, we deny appellee’s request for damages for a frivolous appeal.
PER CURIAM
Panel consists of Chief Justice Radack and Justices Alcala and Higley.
