Regions Bank, F/K/A First Commercial Bank, N.A. v. Southwest Construction Receivables, Limited and Construction Invoice Funding Ltd.

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-08-00131-CV ______________________________ REGIONS BANK, F/K/A FIRST COMMERCIAL BANK, N.A., Appellant V. SOUTHWEST CONSTRUCTION RECEIVABLES, LIMITED AND CONSTRUCTION INVOICE FUNDING LTD., ET AL., Appellees On Appeal from the 202nd Judicial District Court Bowie County, Texas Trial Court No. 99C0985-202 Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Carter MEMORANDUM OPINION Appellant, Regions Bank, f/k/a First Commercial Bank, N.A., and appellees, Southwest Construction Receivables, Limited, Construction Invoice Funding, Ltd., Dennis O'Banion, and Dan W. Moore, have filed a joint motion for severance and remand, informing this Court that they have reached a settlement. In such a case, no real controversy exists, and in the absence of a controversy, the appeal is moot. We grant the motion. We set aside without regard to the merits the judgment of the trial court and remand the case to the trial court for rendition of judgment in accordance with the agreement. See Tex. R. App. P. 42.1(a)(2)(B). Jack Carter Justice Date Submitted: November 13, 2008 Date Decided: November 14, 2008 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 On Appeal from the 71st Judicial District Court Harrison County, Texas Trial Court No. 03-0913 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