Lewis, Charles and Crowder, Ruth v. Marina Bay Trucks, Inc and Sterling Financial Group, LLC

Affirmed and Memorandum Opinion filed March 27, 2007

Affirmed and Memorandum Opinion filed March 27, 2007.

In The

Fourteenth Court of Appeals

____________

NO. 14-02-00053-CV

____________

CHARLIE LEWIS AND RUTH CROWDER, Appellants

V.

MARINA BAY TRUCKS, INC. AND STERLING FINANCIAL GROUP, L.L.C., Appellees

On Appeal from the 113th District Court

Harris County, Texas

Trial Court Cause No. 00-54495

M E M O R A N D U M  O P I N I O N

Appellants, Charlie Lewis (ALewis@) and Ruth Crowder (ACrowder@), appeal from take-nothing summary judgments in favor of appellees Marina Bay Trucks, Inc. (AMarina Bay@) and Sterling Financial Group, L.L.C. (ASterling@).  In their first issue, appellants contend the trial court erroneously granted appellees= no-evidence motions for summary judgment, despite the existence of competent summary judgment evidence raising issues of material fact.  In their second issue, appellants claim the trial court erred in denying their motions for continuance of the September 5, 2001 summary judgment hearing and denying their motions for leave to file an untimely response to Marina Bay=s motion for summary judgment.  We affirm.

Factual and Procedural Background

Appellants Lewis and Crowder, plaintiffs below, originally filed suit against Marina Bay, Sterling, and six other defendants on October 25, 2000.^[1] Appellants asserted numerous causes of action against each defendant, allegedly arising from the sale, financing, and warranty of two used automobiles; specifically, a Chevrolet Corvette and a Mitsubishi 3000 GT.  Appellants filed their first amended petition on March 15, 2001 and subsequently did little, if anything, to prosecute their claims.  One defendant, identified in appellants= pleadings as AThe Answer,@ was never served.  The trial court signed five separate orders granting take-nothing summary judgments in favor of six defendants, including appellees Marina Bay and Sterling.  The trial court signed an order dismissing all claims against the last remaining defendant, Bank One Louisiana, N.A., on November 29, 2001.^[2] Appellants timely filed notice of appeal on December 14, 2001.  Appellees Marina Bay and Sterling are the only defendants who are parties to this appeal.^[3] Neither Marina Bay nor Sterling filed an appellate brief.

Discussion

I.        Appellants= Motions for Continuance of the September 5 Hearing and Motions for Leave to File an Untimely Response to Marina Bay=s Motion for Summary Judgment

We address appellants= second issue first because it affects our determination of whether the trial court=s grant of summary judgment in favor of Marina Bay was proper. Marina Bay=s motion for summary judgment was set for hearing on September 5, 2001. Appellants= second issue contains two arguments related to the September 5 hearing.  First, appellants contend the trial court erred in denying their motions to continue the September 5 hearing.  Second, appellants contend the trial court erred in denying their motions for leave to file an untimely summary judgment response.

A.      Did the Trial Court Abuse its Discretion by Denying Appellants= Motions to Continue the Summary Judgment Hearing Set for September 5?

Appellants first contend the trial court abused its discretion by denying their motions to continue the summary judgment hearing set for September 5, 2001.  Appellants filed a holographic motion on September 4, 2001 requesting a continuance of the September 5 hearing.^[4] On September 5, in a single document, appellants filed (1) a motion for continuance of the September 5 hearing, (2) a motion for leave to file untimely summary judgment responses, and (3) responses to summary judgment motions set for hearing on September 5.^[5]  The trial court conducted an oral hearing on September 5 and signed an order granting Marina Bay=s motion for summary judgment on September 7, 2001.  The record contains no order granting or denying appellants= motions for continuance.  Nothing in the record indicates appellants= motions were brought to the trial court=s attention during the September 5 hearing.  In their brief, appellants concede that the trial court did not expressly rule on their motions for continuance.  Appellants contend, however, that the trial court implicitly ruled on their motions by conducting an oral hearing on September 5 and granting Marina Bay=s motion for summary judgment on September 7.

A party opposing a summary judgment may file a motion to continue the summary judgment hearing in order to conduct additional discovery.  Tex. R. Civ. P. 166a(g).  Although appellants filed two motions for continuance, they neither requested a hearing on the matter nor obtained a written ruling from the trial court.  A party moving for continuance of a summary judgment hearing must obtain a written ruling on its motion in order to preserve the complaint for appellate review.   See Tex. R. App. P. 33.1(a); Kadhum v. Homecomings Fin. Network, Inc., ---S.W.3d---, 2006 WL 1125240, at *2 (Tex. App.CHouston [1st Dist.] 2006, pet. denied); Washington v. Tyler Indep. Sch. Dist., 932 S.W.2d 686, 690 (Tex. App.CTyler 1996, no writ).  Because appellants did not obtain a written ruling on their motions for continuance, they have failed to preserve this complaint for appellate review.

Even if the trial court can be deemed to have implicitly overruled appellants= motions for continuance, the decision to grant or deny a motion for continuance is within the trial court=s discretion, and such determination will be reversed only upon a showing of a clear abuse of discretion. BMC Software Belg. v. Marchand, 83 S.W.3d 789, 800 (Tex. 2002).  A  trial court abuses its discretion when it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.  Id.  On their face, neither of appellants= motions satisfy the requirements of Rule 252 of the Texas Rules of Civil Procedure.  See Tex. R. Civ. P. 252. (application for continuance must Astate that the continuance is not sought for delay only, but that justice may be done@). 

In the September 4 motion, appellants present the following argument as their basis for requesting a continuance: APltfs [sic] do not know yet if they got these motions and miscalendared, or what.  Pltfs [sic] move to reset the 9-5 hearing to a later date.@ The September 4 motion is neither verified nor accompanied by a supporting affidavit.  See Rogers v. Continental Airlines, Inc., 41 S.W.3d 196, 200 (Tex. App.CHouston [14th Dist.] 2001, no pet.) (requiring motion for continuance of summary judgment hearing to be verified or accompanied by affidavit explaining need for further discovery). 

In their September 5 motion, appellants request a continuance Abecause their lawyer=s office did not have the motions calendared and was blissfully unaware of them until the phone rang on the morning of September 4 and it was the clerk asking if she should be receiving them in the mail.@   The September 5 motion provides that appellants= trial counsel was unable to locate in his files two of the three summary judgment motions set for hearing, including the motion filed by Marina Bay.  Appellant=s trial counsel acknowledges that the summary judgment motion filed by defendants Dimension and Westchester was present in his files.  That motion contains a notice of hearing regarding the September 5 hearing, and a certificate of service dated August 10, 2001Ctwenty-six days prior to the date of the hearing.  When a party receives notice of a summary judgment hearing and the notice gives more than the twenty-one days required by the rules of civil procedure, denial of a motion for continuance based on a lack of time to prepare generally is not an abuse of discretion.  Karen Corp. v. Burlington N. & Santa Fe Ry. Co., 107 S.W.3d 118, 124 (Tex. App.CFort Worth 2003, pet. denied).

The affidavits of Lewis and appellants= trial counsel, Matt Muller, are attached to the September 5 motion.  Neither of the affiants testified that additional discovery was needed.  Both affiants testified that Crowder was ill and additional time was needed to obtain her affidavit. However, neither the motion nor the attached affidavits described the anticipated testimony of Crowder or how it was essential to their opposition to the summary judgment motions.  See Tex. R. Civ. P. 166a(g). Given the multiple deficiencies in appellant=s motions for continuance of the September 5 summary judgment hearing, we cannot say that the trial court abused its discretion in refusing to grant appellants= motions for continuance.

B.      Did the Trial Court Err in Denying Appellants= Motions for Leave to File an Untimely Response to Marina Bay=s Motion for Summary Judgment?

Appellants next contend the trial court erred in denying their motions for leave to file an untimely response to Marina Bay=s motion for summary judgment.^[6] Appellants filed a  handwritten motion for leave on September 4, 2001. On September 5, appellants filed a typewritten motion for leave and a response to Marina Bay=s motion for summary judgment.  Also on September 5, Marina Bay filed an objection to appellants= untimely response.  As stated above, an oral hearing was conducted on September 5, and the trial court signed an order granting Marina Bay=s motion for summary judgment on September 7, 2001. 

The record contains no order granting or denying appellants= motions for leave.  Nothing in the record indicates appellants= motions for leave were set for hearing or ruled upon by the trial court.  The order granting Marina Bay=s motion for summary judgment provides that Athe Court having considered the motion, all of the evidence, and arguments of counsel hereby GRANTS Defendant=s Motion for Partial Summary Judgment and ORDERS that Plaintiffs take nothing from Defendant, MARINA BAY TRUCKS, INC.@  In their appellate brief, appellants concede that the trial court did not expressly rule on their motions for leave.  Appellants contend, however, that the absence of a ruling on their motions for leave requires this court to presume that the motions were denied.   We disagree.

In order to address appellants= contention that the trial court erred in denying their motions for leave, we must first find that the trial court ruled, either expressly or implicitly, on those motions, or that the trial court refused to rule and appellants objected to the refusal.  Tex. R. App. P. 33.1(a).  In their brief, appellants contend Awe may presume that the [trial] court denied the motion [for leave] since the absence of a ruling on a motion for leave to late-file a summary judgment response seems to have been interpreted pasim [sic] to require the reviewing Court of Appeals to presume that the motion was denied.@  In support of their contention, appellants cite caselaw from this court and the Texas Supreme Court applying the following rule: When there is no order in the record granting leave for a late filing by the non-movant, we must presume the court did not consider the filing in rendering the take-nothing summary judgment. See Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996); INA of Texas v. Bryant, 686 S.W.2d 614, 615 (Tex. 1985); Brown v. Shores, 77 S.W.3d 884, 886 (Tex. App.CHouston [14th Dist.] 2002, no pet.); Geiselman v. Cramer Fin. Group, Inc., 965 S.W.2d 532, 536 (Tex. App.CHouston [14th Dist.] 1997, no writ).  These cases state an evidentiary presumption to be applied by appellate courts when reviewing a trial court=s order granting a motion for summary judgment.  See id.  None of the cases cited by appellants address the issue of whether a trial court implicitly denied a motion for leave to file a late response to a motion for summary judgment, nor do they address the issue of whether a trial court abused its discretion in denying a motion for leave to file a late response.  See id.

We cannot infer from the record in this case that the trial court implicitly denied appellants= motions for leave to file an untimely response.  The fact that the trial court signed an order granting Marina Bay=s motion for summary judgment on September 7, two days after appellants filed their untimely response, does not conclusively establish that appellants= motions for leave were implicitly denied.  See Delfino v. Perry Homes, ---S.W.3d---, 2006 WL 2042527, at *3 (Tex. App.CHouston [1st Dist.] 2006, no pet.) (A[R]ulings on a motion for summary judgment and objections to summary judgment evidence are not alternatives; nor are they concomitants.  Neither implies a ruling B or any particular ruling B on the other.  In short, a trial court=s ruling on an objection to summary judgment evidence is not implicit in its ruling on the motion for summary judgment.@); Franco v. Slavonic Mut. Fire Ins. Assoc., 154 S.W.3d 777, 784B85 (Tex. App.CHouston [14th Dist.] 2004, no pet.) (holding order granting motion for summary judgment does not constitute an implicit ruling on a special exception).  Under the facts of this case, we find the trial court=s order granting Marina Bay=s motion for summary judgment is equally consistent with either no ruling on appellants= motions for leave, a ruling granting a motion for leave, or a ruling denying the motions for leave.  See Tex. R. App. P. 33.1(a). We cannot review a ruling that we cannot ascertain, and we will not speculate thereon.  Accordingly, appellants have failed to preserve this complaint for our review.  See id.  Appellants= second issue is overruled.

II.       No-Evidence Motions for Summary Judgment Filed by Marina Bay and Sterling

Appellees Marina Bay and Sterling filed separate no-evidence motions for summary judgment, both of which were granted by the trial court.  In their first issue, appellants contend the trial court erred in granting appellees= no-evidence motions for summary judgment because appellants responded with competent summary judgment evidence raising issues of material fact.

A.      Standard of Review

In reviewing a no-evidence motion for summary judgment, we ascertain whether the nonmovant pointed out summary judgment evidence of probative force to raise a genuine issue of fact as to the essential elements attacked in the no-evidence motion. Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 206B08 (Tex. 2002).  We take as true all evidence favorable to the nonmovant, and we make all reasonable inferences therefrom in the nonmovant=s favor.  Dolcefino v. Randolph, 19 S.W.3d 906, 916 (Tex. App.CHouston [14th Dist.] 2000, pet. denied).  A no-evidence motion for summary judgment must be granted if the party opposing the motion does not respond with competent summary judgment evidence that raises a genuine issue of material fact.  Tex. R. Civ. P.  166a(i); Dolcefino, 19 S.W.3d  at 917.  When, as in this case, the order granting summary judgment does not specify the grounds upon which the trial court relied, we must affirm summary judgment if any of the independent summary judgment grounds is meritorious.  FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).

B.      Did the Trial Court Err in Granting Marina Bay=s No-Evidence Motion for Summary Judgment?

On August 14, 2001, Marina Bay filed a no-evidence motion for summary judgment identifying at least one essential element of each cause of action asserted by appellants as to which Marina Bay contended there was no evidence.  Marina Bay=s motion was set for hearing on September 5, 2001.  Appellants= response to Marina Bay=s motion was due on August 29, 2001.  See Tex. R. Civ. P. 166a(c) (AExcept on leave of court, the adverse party, not later than seven days prior to the day of hearing may file and serve opposing affidavits or other written response.@).  On September 4 and 5, appellants filed motions for leave to file an untimely response to Marina Bay=s motion for summary judgment. Appellants filed their only response to Marina Bay=s motion on September 5. 

Appellants admit they did not timely file a response to Marina Bay=s no-evidence motion for summary judgment.  Appellants further admit, and the record reflects, that they did not obtain a ruling from the trial court granting or denying their motions for leave.  When there is no order in the record granting leave for a late filing by the nonmovant, we must presume, in our review of the trial court=s order granting the take-nothing summary judgment, that the trial court did not consider the late filing in rendering the judgment.  Benchmark Bank, 919 S.W.2d at 663; Brown, 77 S.W.3d at 886.  Thus, we must presume the trial court did not consider appellants= untimely response to Marina Bay=s motion.  See id.  Because appellants failed to respond with competent summary judgment evidence raising genuine issues of fact as to any of the elements challenged by Marina Bay, the trial court did not err in granting Marina Bay=s no-evidence motion for summary judgment.  See Tex. R. Civ. P.  166a(i); Dolcefino, 19 S.W.3d  at 917.  

C.      Did the Trial Court Err in Granting Sterling=s No-Evidence Motion for Summary Judgment?

In their amended petition, appellants asserted the following causes of action against Sterling: breach of contract, breach of warranty, negligence, civil conspiracy, violation of the Texas Deceptive Trade Practices Act, and violation of the Texas Insurance Code.^[7]  On September 24, 2001, Sterling filed a no-evidence motion for summary judgment identifying at least one element of each cause of action asserted by appellants as to which Sterling contended there was no evidence.  Sterling=s motion was set for hearing on October 15.  Appellants timely filed a response to Sterling=s motion.  The affidavit of Lewis and various documents^[8] were attached to appellants= response.  On October 15, 2001, the trial court signed an order granting Sterling=s Motion for summary judgment.  The trial court=s order provides: AThe motion for summary judgment of Sterling Financial Group LLC is granted.@  Sterling did not file an appellate brief and, therefore, raises no objections on appeal to appellants= summary judgment evidence.  We address each of appellants= causes of action, the specific elements challenged in Sterling=s motion, and the evidence identified by appellants in their response.

1. Breach of Contract    

In its no-evidence motion for summary judgment, Sterling asserted that it was not liable for breach of contract because there was no evidence of the existence of a contract between appellants and Sterling.  A plaintiff asserting a cause of action for breach of contract must establish the existence of a valid contract. Frost Nat. Bank v. Burge, 29 S.W.3d 580, 593 (Tex. App.CHouston [14th Dist.] 2000, no pet.).  The elements of a contract are: (1) an offer; (2) acceptance in strict compliance with terms of the offer; (3) a meeting of the minds; (4) a communication that each party has consented to the terms of the agreement; (5) execution and delivery of the contract with an intent that it become mutual and binding on both parties; and (6) consideration.  Angelou v African Overseas Union, 33 S.W.3d 269, 278 (Tex. App.CHouston [14th Dist.] 2000, no pet.).

In response to Sterling=s no-evidence motion for summary judgment, appellants had the burden to point out evidence raising a genuine issue of fact as to the existence of a contract between appellants and Sterling.  See San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 330B31 (Tex. App.CHouston [14th Dist.] 2005 no pet.).  In their summary judgment response and appellate brief,^[9] appellants contend that the affidavit of Lewis and a one-page document titled AVehicle Service Contract Application,@ both of which were attached to their summary judgment response, establish that Sterling sold a Mitsubishi automobile to appellants.

The three-page affidavit of Lewis provides no evidence of the existence of any contract between appellants and Sterling.  The affidavit contains no mention of Sterling whatsoever.   In his affidavit, Lewis testified that he purchased both of the automobiles at issue, as well as an extended service plan for the Mitsubishi automobile, from Sam Grizzaffi and Terry Etzel at the Toys and Trucks used car dealership. 

Similarly, the Vehicle Service Contract Application (Athe Application@) fails to raise a fact issue as to the existence of a contract between appellants and Sterling. The Application is, by its terms, an application for an extended warranty on a used Mitsubishi automobile.  The Application identifies Sterling as the Adealer@ obligated to provide vehicle service under the contract and Ruth Crowder as the purchaser.  The Application further provides that the service contract becomes effective

upon the Application being received by the Administrator from the Seller, verified and accepted by the Administrator for Vehicle eligibility, and conformation and a Contract number is mailed to the Purchaser by the Administrator . . . . This application will be attached to, and will become part of the service contract.

The Application is signed by appellants Lewis and Crowder, as well as Jim Riordan, a purported representative of Sterling.  However, the Application is neither attached to, nor accompanied by, any contract.  The Application, in and of itself, does not establish a meeting of the minds between appellants and Sterling.  See Angelou, 33 S.W.3d at 278.  A correspondence from the AAdministration Department@ to Ruth Crowder titled ANotice of Rejection of Application@ is also attached to appellants= summary judgment response. This correspondence provides: AAfter careful review of your vehicle service contract application, we must inform you that your application cannot be accepted.@ We conclude that the trial court did not err in granting summary judgment as to appellants= breach of contract claim because appellants= summary judgment evidence does not raise a genuine issue of material fact as to the existence of a contract between appellants and Sterling.    

2. Breach of Warranty                 

In its motion for summary judgment, Sterling contends appellants have no evidence that Sterling sold or provided an express or implied warranty to appellants.  In their summary judgment response and appellate brief, appellants do not identify any evidence or make any arguments in support of their claim for breach of warranty. See Tex. R. Civ. P. 166a(i); Saba Energy, 171 S.W.3d at 330 (requiring a nonmovant responding to a no-evidence ground for summary judgment to point out evidence that raises a genuine issue of fact as to the challenged elements).  Assuming, arguendo, appellants contend that the Application provides some evidence of the existence of a warranty, we hold that the Application does not provide more than a scintilla of evidence of the existence of a warranty sold or provided by Sterling to appellants.  Accordingly, we conclude that the trial court did not err in granting summary judgment as to appellants breach of warranty claim.

3. Negligence

Sterling=s summary judgment motion contends appellants have no evidence of any essential element of a cause of action for negligence. Sterling specifically asserts that appellants have no evidence of the existence of a legal duty owed by Sterling to appellants, a breach of that duty, or damages proximately caused by the breach. Appellants= amended petition alleges Sterling provided financing and insurance for the two automobiles sold to appellants by Marina Bay Trucks. Appellants allege Sterling was negligent in the following manner: ASterling Financial Group, LLC=s employees probably conspired with Etzel and/or Grizzaffi and/or Marina Bay Trucks, Inc. to profit unlawfully from deceiving Lewis and his grandmother, but if Sterling didn=t know what kind of operation Toys & Trucks was running, they were willfully ignorant about it, or negligent in ignoring the situation.@ 

In their summary judgment response and appellate brief, appellants do not identify any evidence or cite any legal authority in support of their allegation that Sterling owed them a legal duty.  Appellants= summary judgment response makes no reference whatsoever to their negligence claim.  Accordingly, we conclude that the trial court did not err in granting summary judgment as to appellants= negligence claim because appellants failed to point out evidence raising a genuine issue of fact as to the existence of a legal duty owed by Sterling to appellants.  See FM Props. Operating Co., 22 S.W.3d at 872.  (AWhen a trial court=s order granting summary judgment does not specify the grounds relied upon, the reviewing court must affirm summary judgment if any of the summary judgment grounds are meritorious.@).

4. Civil Conspiracy

In its no-evidence motion, Sterling contends appellants have no evidence of the following elements of a cause of action for civil conspiracy: (1) an object to be accomplished, (2) an agreed upon course of action, (3) one or more unlawful, overt acts, and (4) damages as the proximate result.  See Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex. 1983). Appellants= amended petition alleges Sterling Aprobably conspired with Etzel and/or Grizzaffi and/or Marina Bay Trucks, Inc. to profit unlawfully . . . .@ However, appellants= summary judgment response fails to identify any evidence that Sterling agreed upon a course of action with any other alleged conspirator.  Therefore, the trial court did not err in granting summary judgment as to appellants= civil conspiracy claim.  See FM Props. Operating Co., 22 S.W.3d at 872. 

5. Texas Deceptive Trade Practices Act

Appellants= DTPA claim is based on alleged misrepresentations made by Sterling to appellants regarding the sale of a Mitsubishi automobile and extended warranty.  In their amended petition, appellants alleged: AThe insurance (extended warranty) deal got bent from the start as well.  It looks as if Etzel or someone else at the Toys & Trucks or Sterling end played with the mileage declaration and odometer statements and backdated the sale on the Mitsubishi so that the life of the extended warranty would be unnaturally shortened.@  See Tex. Bus. & Com. Code Ann. ' 17.46(b)(7) (Vernon Supp. 2005) (stating that misrepresentation of the standard, quality, grade, style or model of goods or services is a false, misleading, or deceptive act or practice under the DTPA).

Sterling=s summary judgment motion contends appellants have no evidence that Sterling made any misrepresentations to appellants regarding the sale of an automobile or warranty.  In their summary judgment response and appellate brief, appellants identify the Application as evidence of misrepresentations made by Sterling.  The Application contains information regarding the odometer reading and date of sale of the Mitsubishi automobile; however, appellants failed to identify any evidence showing that Sterling filled out the Application or made any of the alleged misrepresentations contained therein.  To the contrary, in his affidavit, Lewis stated that Sam Grizzaffi and Terry Etzel prepared the paperwork for the extended service plan and incorrectly stated the odometer reading in the paperwork.  Therefore, the trial court did not err in granting summary judgment as to appellants= DTPA claim.

6. Texas Insurance Code

In their amended petition, appellants allege Sterling knowingly made misrepresentations in violation of the Texas Insurance Code.^[10] The Insurance Code provides:

It is an unfair method of competition or an unfair or deceptive act or practice in the business of insurance to misrepresent an insurance policy by:(1) making an untrue statement of material fact;

(2) failing to state a material fact necessary to make other statements made not misleading, considering the circumstances under which the statements were made;

(3) making a statement in a manner that would mislead a reasonably prudent person to a false conclusion of a material fact;

(4) making a material misstatement of law; or

(5) failing to disclose a matter required by law to be disclosed, including failing to make a disclosure in accordance with another provision of this code.

Tex. Ins. Code Ann. ' 541.061 (Vernon 2004) (formerly codified at Tex. Ins. Code art. 21.21 (Vernon1981)) (emphasis added).

In its motion for summary judgment, Sterling contends appellants have no evidence that Sterling is in the business of selling insurance or that Sterling violated the Texas Insurance Code.  In their summary judgment response and appellate brief, appellants fail to identify any evidence in support of their claim that Sterling is in the business of selling insurance.  Accordingly, the trial court did not err in granting summary judgment as to appellants= cause of action for violation of the Texas Insurance Code.

Appellants failed to raise a genuine issue of fact as to at least one challenged element of each of appellants= causes of action against Sterling.  Therefore, we hold that the trial court did not err in granting summary judgment in favor of Sterling.  See FM Props. Operating Co., 22 S.W.3d at 872.  (AWhen a trial court=s order granting summary judgment does not specify the grounds relied upon, the reviewing court must affirm summary judgment if any of the summary judgment grounds are meritorious.@). Because we find that the trial court did not err in granting take-nothing summary judgments in favor of Marina Bay and Sterling, appellants= first issue is overruled.

Conclusion

Having considered and overruled each of appellants= issues on appeal, we affirm the judgment of the trial court. 

/s/      John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed March 27, 2007.

Panel consists of Justices Yates, Anderson, and Hudson.

---

^[1]  Appellants filed suit against Sterling Financial Group, L.L.C., Marina Bay Trucks, Inc., Dimension Service Corporation, The Answer, Westchester Fire Insurance Company, Bank One Louisiana, N.A., Terry Etzel, and Sam Grizzaffi.

^[2]   None of the parties contend that the orders granting summary judgment in favor of Marina Bay and Sterling are not final, appealable orders.  Nevertheless, we are obligated to review sua sponte issues affecting jurisdiction.  N.Y. Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 678 (Tex. 1990).  Appellants= first amended original petition asserted six causes of action against a defendant identified as AThe Answer@ and described as Aan entity of unknown structure which is engaged in the business of insurance in the State of Texas but which has not registered to do so . . . nor has it designated an agent for service of process.  Its principal offices are unknown despite diligent investigation.@  Defendant The Answer was never served, nor did it file an answer or any other pleadings or motions.  The record contains no order disposing of appellants= claims against The Answer. 

A judgment is final for the purposes of appeal if it disposes of all pending parties and claims in the record.  Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001).  However, where a judgment disposes of all parties except those who have not been served and have filed no answer, as is the case with The Answer, the judgment is final and the unserved party is considered to have been nonsuited without prejudice.  See M.O. Dental Lab v. Rape, 139 S.W.3d 671, 674B75 (Tex.2004) (holding summary judgment order that disposed of all named parties except one who had never been served was final for purposes of appeal based on record revealing (1) unserved party never filed any motions or pleadings and (2) plaintiff had no intention to serve unserved party); Galley v. Apollo Assoc. Servs., 177 S.W.3d 523, 526 n.1 (Tex. App.CHouston [1st Dist.] 2005, no pet.).  On November 29, 2001, the trial court signed an order dismissing with prejudice all claims against Bank One Louisiana, N.A.  The Answer was the only remaining defendant. The Answer has not been served, and the record contains no indication that appellants ever expected to obtain service upon The Answer.  Therefore, we conclude that the trial court=s orders granting summary judgment in favor of appellees Sterling and Marina Bay became final and appealable on November 29, 2001.  See id.

^[3]  In their notice of appeal and appellate brief, appellants challenge  the trial court=s orders granting summary judgment in favor of defendants Sterling Financial Group, L.L.C., Marina Bay Trucks, Inc., Dimension Service Corporation, Westchester Fire Insurance Company, Terry Etzel, and Sam Grizzaffi. However, during the pendency of this appeal, Terry Etzel and Sam Grizzaffi filed bankruptcy and received orders of discharge.  Also, on August 31, 2006, this court issued an order dismissing Dimension Service Corporation and Westchester Fire Insurance Company from this appeal pursuant to an agreed motion to dismiss.  Therefore, Marina Bay and Sterling are the only two appellees who remain parties to this appeal.

^[4]  The motion filed on September 4 also requested leave to file an untimely response to three pending motions for summary judgment. 

^[5]   Three separate summary judgment motions were set for hearing on September 5.  The defendants who filed the other two summary judgment motions are not parties to this appeal.

^[6]  Marina Bay=s motion for summary judgment was set for hearing on September 5, 2001.  Therefore, appellants were required to obtain leave of court to file a response later than August 29, 2001.  See Tex. R. Civ. P. 166a(c) (AExcept on leave of court, the adverse party, not later than seven days prior to the day of hearing may file and serve opposing affidavits or other written response.@). 

^[7]  Appellants asserted the same six causes of action against each of the eight defendants named in their amended petition. Additional causes of action were asserted against Marina Bay, Terry Etzel, and Sam Griffazzi. 

^[8]  Photocopies of the following documents were attached to appellants= response: photographs of a Mitsubishi automobile, a document titled ASterling Group Program Guidelines,@ a document titled ASterling Group The Automotive Financing Source,@ a February 17, 1999 correspondence from Sterling to Marina Bay authorizing Marina Bay to submit applications to Sterling, a March 11, 1999 document titled AVehicle Service Contract Application,@ an August 6, 1999 correspondence to Ruth Crowder rejecting Crowder=s Vehicle Service Contract Application, and a Texas certificate of title for a 1985 Chevrolet automobile. 

^[9]  The argument section of appellants= appellate brief contains only one and one-half pages of argument pertaining to the trial court=s order granting summary judgment in favor of Sterling.

^[10]  Appellants do not cite or refer to any specific provisions of the Texas Insurance Code or Texas Deceptive Trade Practices Act in their amended petition, response to Sterling= motion for summary judgment, or appellate brief.