J & R Cochran Family Trust, Jeremy W. Presley, Trustee v. Sunshine Corners, Inc.

Opinion

Opinion filed March 1, 2007

The court on this day, May 3, 2007, has withdrawn this opinion and judgment dated March 1, 2007, and substituted the opinion and judgment dated May 3, 2007.

Opinion filed March 1, 2007

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-06-00352-CV

                                                    __________

    J & R COCHRAN FAMILY TRUST, JEREMY W. PRESLEY, TRUSTEE,                                                             Appellant

                                                             V.

                                SUNSHINE CORNERS, INC., Appellee

                                          On Appeal from the 32nd District Court

                                                          Fisher County, Texas

                                                     Trial Court Cause No. 5914

                                            M E M O R A N D U M    O P I N I O N

This is an appeal from a default judgment.  We dismiss for want of jurisdiction.

When the clerk=s record was received, the clerk of this court  wrote the parties advising them that it appeared both the motion for new trial and the notice of appeal were out of time and directing the Cochran Family Trust to respond showing grounds for continuing their appeal.  The Cochran Family Trust filed a response contending that it did not have notice of the hearing on Sunshine=s motion for default judgment and that the timeliness of its motion for new trial Ais exactly the same issue for which [it] is seeking review.@

The judgment was signed on September 20, 2006.  Sixty-one days later on November 20, 2006, the Cochran Family Trust filed a motion for new trial.  Ninety days after the date the judgment was signed, the Cochran Family Trust filed a notice of appeal on December 19, 2006.  The trial court conducted a hearing on the motion for new trial and determined that the Cochran Family Trust=s allegations concerning lack of notice of the motion for default judgment and lack of notice of the September 20 judgment^[1] were not supported by the evidence.  The appellate jurisdiction of this court has not been invoked.  Tex. R. Civ. P. 306a, 329b; Tex. R. App. P. 26.1, 26.3; Verburgt v. Dorner, 959 S.W.2d 615 (Tex. 1997).  The appeal is dismissed.

PER CURIAM

March 1, 2007

Panel consists of:  Wright, C.J.,

McCall, J., and Strange, J.

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^[1]This finding is not subject to attack in an interlocutory appeal.  Tex. Civ. Prac. & Rem. Code Ann. ' 51.014 (Vernon Supp. 2006); Ward v. Parham, 198 S.W.3d 861, 862 (Tex. App.CTexarkana 2006, no pet.).