whispering-pines-lodge-an-assumed-name-for-emsco-of-longview-inc ( 2005 )

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-05-00127-CV

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WHISPERING PINES LODGE, AN ASSUMED NAME FOR

EMSCO OF LONGVIEW, INC., WHISPERING PINES

LODGE, L.L.C., WHISPERING PINES LODGE I, L.L.P.,

WHISPERING PINES HEALTH-CARE, L.C.,

TEXAS HEIRS, INC. D/B/A WHISPERING PINES LODGE,

ETHEL PARIS, AND TONIA OLIVER, Appellants

V.

MABLE ABERCROMBIA, INDIVIDUALLY

AND AS NEXT FRIEND OF THE

ESTATE OF O. D. ABERCROMBIA, DECEASED, Appellee

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On Appeal from the 71st Judicial District Court

Harrison County, Texas

Trial Court No. 03-0913

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Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

            Whipering Pines Lodge I, L.L.P. and Whispering Pines Health-Care, L.C., have brought a restricted appeal of a default judgment rendered against them April 18, 2005. Pursuant to Rule 42.3, we notified the parties that the judgment being appealed may not be final. See Tex R. App. P. 42.3. The appellants have filed a response in which they agreed that the complained-of judgment was not a final judgment. Because the trial court's judgment is not final, we dismiss this appeal for want of jurisdiction.

            The defendants in the underlying lawsuit are Whispering Pines Lodge, an assumed name for EMSCO of Longview, Inc.; Whispering Pines Lodge, L.L.C.; Whispering Pines Lodge I, L.L.P.; Whispering Pines Health-Care, L.C.; Texas Heirs, Inc. d/b/a Whispering Pines Lodge; Ethel Paris; and Tonia Oliver. The record contains evidence of two default judgments. On April 18, 2005, the trial court rendered a default judgment against Whispering Pines Lodge, L.L.C.; Whispering Pines Lodge I, L.L.P.; and Whispering Pines Health-Care, L.C., and specifically noted the judgment pertained only to those defendants. On August 8, 2005, the trial court rendered judgment against Whispering Pines Lodge, an assumed name of EMSCO of Longview, Inc., and specifically noted the judgment pertained to that defendant only. The record does not contain evidence of a judgment against Ethel Paris; Tonia Oliver; or Texas Heirs, Inc. d/b/a Whispering Pines Lodge, or other order making the default judgments final.

            Generally, only final judgments of trial courts are appealable. Tex. Civ. Prac. & Rem. Code Ann. § 51.012 (Vernon 1997); Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001); Hinde v. Hinde, 701 S.W.2d 637, 639 (Tex. 1985). A restricted appeal requires that the judgment being appealed be final and appealable. See Tex. R. App. P. 30; Etter's Welding, Inc. v. Gainesville Nat'l Bank, 687 S.W.2d 521, 522 (Tex. App.—Fort Worth 1985, no writ.). Because the trial court's judgment does not dispose of all parties and claims, the complained-of default judgment is not a final judgment.

            Accordingly, we dismiss this appeal for want of jurisdiction.

                                                                        Jack Carter

                                                                        Justice

Date Submitted:          November 22, 2005

Date Decided:             November 23, 2005

family: 'Arial', sans-serif">          Detective Mark Warden of the Marshall Police Department investigated the theft of lawn equipment from the school. Warden's investigation led him to conclude the items that had been pawned by Smith at Cash America Pawn shop were the same items that had been stolen from the school. During Warden's investigation, he also interviewed Smith regarding the theft. Smith told him during that interview "that she felt that her sons had stolen the items." She also expressed to Smith that she believed the items she pawned were "hot."

          Fifteen-year-old Lawrence Smith, Sonya's son, also testified. Lawrence told the trial court he had stolen some lawn and garden equipment from the school and then asked his mother to pawn the items for him. While Lawrence testified he never told his mother the items were stolen, the State offered into evidence Lawrence's written juvenile confession in which Lawrence stated he had admitted to his mother he had stolen the lawn and garden equipment.

          Smith testified she took her sons to the pawn shop June 14, 2005, and allowed them to sell "their" lawn equipment. She denied knowing the items were stolen at the time she pawned them for her sons. She testified Lawrence did not tell her the items were stolen until after she had already been arrested for possessing (and selling) the stolen property. However, Smith's testimony was impeached through her admission to having been previously convicted of a felony drug offense and a felony theft offense. See Tex. R. Evid. 609(a).

          The evidence, when viewed in the light most favorable to the State, is legally sufficient to support the trial court's conclusion that Smith violated her conditions of community supervision by knowingly selling stolen property. Similarly, the greater weight of the credible evidence creates a reasonable belief Smith violated a condition of her community supervision. The trial court, therefore, did not abuse its discretion by revoking Smith's community supervision.

          We affirm the judgment.

                                                                Donald R. Ross

                                                                Justice

Date Submitted:      December 27, 2005

Date Decided:         December 30, 2005  

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