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McKamy Evers Estates Homeowners Association v. PlainsCapital Bank

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MEMORANDUM OPINION *fn1

On June 17, 2010, we notified Appellants that this court may not have jurisdiction over this appeal because it appeared that the notice of appeal was not timely filed. We stated that the appeal would be dismissed for want of jurisdiction unless Appellants or any party desiring to continue the appeal filed with the court on or before June 28, 2010, a response showing grounds for continuing the appeal. See Tex. R. App. P. 42.3(a), 44.3.

We received a response from Appellants on June 29, 2010. Appellants provide no explanation for why their notice of appeal was not timely filed but instead argue that no final judgment exists. We requested and received a reply from Appellee PlainsCapital Bank. After reviewing Appellants’ response to our jurisdictional inquiry, Appellee’s reply, the trial court’s November 12, 2009 “Order Granting Plaintff’s Emergency Application For Appointment Of Receiver,”*fn2 the trial court’s February 10, 2010 “Interlocutory Judgment By Default,” and the trial court’s February 19, 2010 “Final Judgment By Default,” it appears that all parties and all issues have been disposed of. The trial court’s February 19, 2010 “Final Judgment By Default”–which states that there was an “absence of any answer, response or appearance in this suit by Defendants” and that “this Court finds that a final judgment by default in favor of Plaintiff and against Defendants [Appellants] should be entered”–appears to be a final judgment. See generally Tex. R. Civ. P. 239. Because the February 19, 2010 judgment is a final judgment disposing of all parties and all issues and because Appellants timely filed a motion for new trial, the appellate deadline for filing their notice of appeal was May 20, 2010, see Tex. R. App. P. 26.1(a), but Appellants did not file their notice of appeal until June 11, 2010.

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