Texas Judiciary Online - HTML Opinion

^{^[1]} Appellants filed suit against = Sterling=20 Financial Group, L.L.C., Marina Bay Trucks, Inc., Dimension = Service=20 Corporation, The Answer, Westchester Fire Insurance Company, Bank = One=20 Louisiana, N.A., Terry Etzel, and Sam Grizzaffi.

^{^[2]} None of the parties contend = that the=20 orders granting summary judgment in favor of Marina Bay and = Sterling are=20 not final, appealable orders. Nevertheless, we are obligated = to=20 review sua sponte issues affecting jurisdiction. = N.Y.=20 Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 678 (Tex.=20 1990). Appellants=3D first amended original petition = asserted six=20 causes of action against a defendant identified as AThe Answer@ and described as Aan entity of unknown structure which is = engaged in=20 the business of insurance in the State of Texas but which has not=20 registered to do so . . . nor has it designated an agent for = service of=20 process. Its principal offices are unknown despite diligent=20 investigation.@ Defendant The Answer was never = served, nor=20 did it file an answer or any other pleadings or motions. The = record=20 contains no order disposing of appellants=3D claims against The Answer. =

A judgment is final for the purposes of = appeal if=20 it disposes of all pending parties and claims in the record. = Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. = 2001). =20 However, where a judgment disposes of all parties except those who = have=20 not been served and have filed no answer, as is the case with The = Answer,=20 the judgment is final and the unserved party is considered to have = been=20 nonsuited without prejudice. See M.O. Dental Lab v. = Rape, 139=20 S.W.3d 671, 674B75 (Tex.2004) (holding summary judgment = order that=20 disposed of all named parties except one who had never been served = was=20 final for purposes of appeal based on record revealing (1) = unserved party=20 never filed any motions or pleadings and (2) plaintiff had no = intention to=20 serve unserved party); Galley v. Apollo Assoc. Servs., 177 = S.W.3d=20 523, 526 n.1 (Tex. App.CHouston [1st Dist.] 2005, no = pet.). On=20 November 29, 2001, the trial court signed an order dismissing with = prejudice all claims against Bank One Louisiana, N.A. The = Answer was=20 the only remaining defendant. The Answer has not been served, and = the=20 record contains no indication that appellants ever expected to = obtain=20 service upon The Answer. Therefore, we conclude that the = trial=20 court=3Ds orders granting summary judgment in = favor of=20 appellees Sterling and Marina Bay became final and appealable on = November=20 29, 2001. See id.

^{^[3]} In their notice of appeal and = appellate=20 brief, appellants challenge the trial court=3Ds orders granting summary judgment in = favor of=20 defendants Sterling Financial Group, L.L.C., Marina Bay Trucks, = Inc.,=20 Dimension Service Corporation, Westchester Fire Insurance Company, = Terry=20 Etzel, and Sam Grizzaffi. However, during the pendency of this = appeal,=20 Terry Etzel and Sam Grizzaffi filed bankruptcy and received orders = of=20 discharge. Also, on August 31, 2006, this court issued an = order=20 dismissing Dimension Service Corporation and Westchester Fire = Insurance=20 Company from this appeal pursuant to an agreed motion to = dismiss. =20 Therefore, Marina Bay and Sterling are the only two appellees who = remain=20 parties to this appeal.

^{^[4]} The motion filed on = September=20 4 also requested leave to file an untimely response to three = pending=20 motions for summary judgment. =20

^{^[5]} Three = separate summary=20 judgment motions were set for hearing on September 5. The = defendants=20 who filed the other two summary judgment motions are not parties = to this=20 appeal.

^{^[6]} Marina = Bay=3Ds motion for = summary judgment=20 was set for hearing on September 5, 2001. Therefore, = appellants were=20 required to obtain leave of court to file a response later than = August 29,=20 2001. See Tex. R.=20 Civ. P. 166a(c) (AExcept on leave of = court, the=20 adverse party, not later than seven days prior to the day of = hearing may=20 file and serve opposing affidavits or other written = response.@). =

^{^[7]} Appellants asserted the same six = causes of=20 action against each of the eight defendants named in their amended = petition. Additional causes of action were asserted against = Marina=20 Bay, Terry Etzel, and Sam Griffazzi.

^{^[8]} Photocopies of the = following=20 documents were attached to appellants=3D response: = photographs of a=20 Mitsubishi automobile, a document titled ASterling Group = Program=20 Guidelines,@ a document titled=20 ASterling Group The = Automotive=20 Financing Source,@ a February 17, = 1999=20 correspondence from Sterling to Marina Bay authorizing Marina Bay = to=20 submit applications to Sterling, a March 11, 1999 document titled=20 AVehicle Service = Contract=20 Application,@ an August 6, 1999=20 correspondence to Ruth Crowder rejecting Crowder=3Ds Vehicle Service = Contract=20 Application, and a Texas certificate of title for a 1985 Chevrolet = automobile.

^{^[9]} The argument section of=20 appellants=3D appellate brief contains only one and = one-half=20 pages of argument pertaining to the trial court=3Ds order granting summary judgment in = favor of=20 Sterling.

^{^[10]} Appellants do not cite or refer = to any=20 specific provisions of the Texas Insurance Code or Texas Deceptive = Trade=20 Practices Act in their amended petition, response to = Sterling=3D motion for summary judgment, or = appellate=20 = brief.