COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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KENNETH D. McKEOUGH, No. 08-21-00026-CV
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Appellant, Appeal from the
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v. County Court at Law No. 3
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CAMELOT TOWNHOMES of El Paso County, Texas
ASSOCIATION INC., §
(TC# 2019DCV3303)
Appellee. §
MEMORANDUM OPINION
Kenneth D. McKeough appeals from a traditional summary judgment granted in favor of
Camelot Townhomes Association, Inc. (Camelot). McKeough filed a second appeal under cause
number 08-21-00057-CV appealing the trial court’s no-evidence summary judgment granted in
favor of Camelot. We dismiss this appeal on our own motion and consolidate the record with cause
number 08-21-00057-CV.
I. BACKGROUND
Camelot, a Texas non-profit corporation and homeowner’s association consisting of
community condominiums and townhomes, filed suit against Kenneth McKeough, an owner and
resident of one of the condominiums located at 4800 N. Stanton, El Paso, Texas 79902 (the
Property). The basis of Camelot’s suit was to recover unpaid condominium assessment fees
pursuant to the Condominium Declaration referenced in McKeough’s deed. Camelot pleaded a
breach of the Declaration and petition for judicial foreclosure, alleging breach of the obligation to
pay assessments and late fees as required under the Declaration. As damages, Camelot sought
judgment against McKeough for specified sums and for the establishment and foreclosure of the
vendor’s lien retained to secure the obligations. It also sought attorney’s fees and court costs.
Camelot moved for traditional summary judgment on the outstanding assessment fees and
its foreclosure suit. McKeough opposed, and, after dueling responses, the trial court granted the
motion. However, upon McKeough’s request, the trial court granted a new trial based on COVID
19 grounds.
Camelot then filed a second motion for traditional summary judgment on the outstanding
assessment fees and its foreclosure suit. Camelot attached evidence in support of its motion
including: (1) the condominium declaration; (2) the warranty deed to Kenneth D. McKeough, as
grantee; (3) the 2019 demand letter sent by Camelot to McKeough; (4) McKeough’s interrogatory
answers; (5) McKeough’s supplemental interrogatory answers; (6) the affidavit of Barbara Lewis,
the records custodian of Camelot and ledger; and (7) the affidavit of Camelot’s attorney in support
of attorney’s fees. In response, McKeough amended his answer to include affirmative defenses of
offset and prior material breach. McKeough then responded to Camelot’s motion opposing the
award of attorney’s fees. Additionally, McKeough asserted Camelot was the first to breach through
failure to properly repair his unit.
On November 6, 2020, the trial court signed an order granting Camelot’s motion in its
entirety. The trial court ordered Camelot recover the outstanding assessment balance of $8,760
from McKeough. The trial court further ordered attorney’s fees in the amount of $23,890.99 and
court costs in the amount of $934.77. The trial court also awarded Camelot conditional appellate
attorney’s fees. Lastly, the trial court granted Camelot’s petition for judicial foreclosure and
ordered it could move forward with foreclosure. The trial court subsequently entered a nunc pro
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tunc order granting summary judgment to correct the date the judgment was signed: “SIGNED
this 10th day of November 2020 to be effective as of the 6th day of November, 2020.” Upon
motion from Camelot, the trial court then severed the summary judgment into a separate cause
number. 1
McKeough appealed.
II. DISMISSAL
On February 4, 2021, McKeough filed notice of appeal appealing the order signed on
November 10, 2020. We docketed the appeal under cause number 08-21-00026-CV. The
November 10 order granting summary judgment did not dispose of all pending motions and issues,
as McKeough’s counter claims asserting Camelot was the first to breach the Condominium
Declaration were still pending in the trial court. Soon following the November 10 order, Camelot
filed a no-evidence summary judgment motion against McKeough’s counter claim. The trial court
then granted the no-evidence motion on February 11, 2021. McKeough filed a notice of appeal
appealing that judgment on April 9, 2021, which we docketed in cause number 08-21-00057-CV.
On April 7, 2021, and June 10, 2021, this Court entered an order abating both appeals due
to McKeough’s pending bankruptcy filing. On October 1, 2021, this Court received notice of
dismissal of McKeough’s bankruptcy and reinstated the appeal. On October 8, 2021, McKeough
filed an agreed motion to consolidate. In the motion, McKeough informed this Court that, on
September 28, 2021, the parties executed a Rule 11 agreement in the United States Bankruptcy
Court. The Rule 11 contained an agreement that McKeough would dismiss the bankruptcy suit and
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The order granting severance stated the cause of action asserted by Camelot against McKeough for unpaid
assessments and suit to foreclose would be severed. The trial court stated the action would be made the subject of a
separate action styled “Camelot Townhomes Association, Inc. v. Kenneth D. McKeough.” However, the space for the
new cause number was left blank. In Camelot’s appellee brief, it stated the new cause number 2020DCV4040. Our
review of the public records does show the November summary judgment was severed into 2020DCV4040. However,
the appeal of the order was done under the original cause number 2019DCV3303.
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would agree to consolidate the two appeals in our Court. Accordingly, McKeough requested this
Court to consolidate the appeals “for purposes of judicial efficiency.” We denied the motion to
consolidate.
Our review of the record reveals the November 10, 2020, order was not final when
McKeough filed his notice of appeal on February 4, 2021. We have jurisdiction to consider appeals
only from final judgments and from certain interlocutory orders made immediately appealable by
statute or rule. See, e.g., TEX. CIV. PRAC. & REM. CODE ANN. § 51.014 (listing appealable
interlocutory orders). However, McKeough’s notice of appeal was prematurely filed and was
deemed filed on February 11, 2021, the date the trial court disposed of all pending claims rendering
the judgment final. TEX. R. APP. P. 27.1(a) (“In a civil case, a prematurely filed notice of appeal is
effective and deemed filed on the day of, but after, the event that begins the period for perfecting
the appeal.”).
It was unnecessary for McKeough to later perfect appeal of the November 10, 2020, order
when it became final. McKeough had, and continues to have, a right to appeal the various rulings
of the trial court and the final summary judgment in the context of the appeal in cause number 08-
21-00057-CV. Although we technically do have jurisdiction over this appeal, there is no reason to
have a second appeal of the same judgment and rulings.
We reverse our prior decision to deny the motion to consolidate and it is hereby granted.
This Court will consolidate the two above-referenced appeals for all purposes. The issues, records,
and documents filed in cause number 08-21-00026-CV are consolidated into cause number 08-21-
00057-CV. The consolidated appeal shall proceed under appeal number 08-21-00057-CV, and
appeal number 08-21-00026-CV is hereby dismissed. 2
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We consider the merits of McKeough’s summary judgment complaints in our opinion released this same day. See
Kenneth D. McKeough v. Camelot Townhome Association, Inc., No. 08-21-00057-CV, (Tex. App.—El Paso Feb. 27,
2023) (mem. op.).
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III. CONCLUSION
We dismiss this appeal under cause number 08-21-00026-CV.
GINA M. PALAFOX, Justice
February 27, 2023
Before Rodriguez, C.J., Palafox, and Alley, JJ.
Alley, J. (not participating)
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