Court of Appeals of Texas, Dallas.

ST. PAUL INSURANCE COMPANY, Appellant,

v.

Nancy J. MEFFORD and Texas Workers’ Compensation Commission, Appellees.

No. 05-96-01581-CV.

|

Nov. 30, 1998.

Before LAGARDE, KINKEADE, and WRIGHT, JJ.

OPINION

LAGARDE.

*1 On November 4, 1998, this Court notified the parties that this Court lacked jurisdiction over this appeal because the trial court’s judgment did not appear to be final due to an outstanding claim for attorney’s fees. This Court notified the parties that, pursuant to Texas Rule of Appellate Procedure 42.3, this case would be dismissed if no party filed with this Court within ten days a response showing grounds for continuing the appeal. See Tex.R.App. P. 42.3. Both sides filed responses asserting that this Court has jurisdiction.

The parties cannot confer jurisdiction on a court by agreement. See Kirk v. Head, 137 Tex. 44, 152 S.W.2d 726, 728 (1941); Wilkinson v. Wilkinson, 419 S.W.2d 226, 228 (Tex.Civ.App.-Dallas 1967, no writ). Reviewing courts have the duty to inquire into their own jurisdiction. See Dallas County Appraisal Dist. v. Funds Recovery, Inc., 887 S.W.2d 465, 468 (Tex.App.-Dallas 1994, writ denied).

The record shows that St. Paul brought suit in the district court seeking judicial review of the decision of the Texas Workers’ Compensation Commission. Mefford filed counterclaims for breach of contract, violations of the Texas Deceptive Trade Practices-Consumer Protection Act (DTPA) and of the Texas Insurance Code, and breach of the duty of good faith and fair dealing. Mefford sought attorney’s fees under section 38.001(8) of the Texas Civil Practice and Remedies Code, which provides for attorney’s fees in a breach of contract case. See Tex. Civ. Prac. & Rem.Code Ann. § 38.001(8) (Vernon 1997). Mefford also sought attorney’s fees under the DTPA and the Texas Insurance Code. The trial court entered an agreed severance order stating:

After full consideration, it is ORDERED, ADJUDGED, AND DECREED that the “bad faith” claims, including alleged violations of the Texas Insurance Code, Article 21.21 and Deceptive Trade Practices Act, asserted by Nancy J. Mefford be, and the same hereby are, severed from the workers’ compensation claim asserted in Nancy J. Mefford’s pleadings for affirmative relief.

The parties argue that the severance order severed Mefford’s claims for attorney’s fees because they were “bootstrapped” to Mefford’s bad faith claims. None of Mefford’s claims are delineated “bad faith claims” in her pleading. The issue, then, is which of Mefford’s claims were severed and which, if any, remain.

The severance order states that the bad faith claims include the DTPA and insurance code claims. This leaves Mefford’s claim for breach of contract and breach of the duty of good faith and fair dealing. Mefford’s claim for breach of the duty of good faith and fair dealing alleges that St. Paul “acted with malicious, intentional, gross negligence and a conscious indifference to the rights of defendant [Mefford] in breaching its duty of good faith and fair dealing.” We conclude this claim falls under the category of “ ‘bad faith’ claims.” This leaves Mefford’s claim for breach of contract.

*2 Mefford alleged breach of contract as follows: “St. Paul Insurance Company breached the insurance contract by failing to provide coverage, resulting in damages to the Defendant [Mefford].” This claim does not allege bad faith. The severance order states that the bad faith claims are “severed from the workers’ compensation claim asserted in Nancy J. Mefford’s pleadings for affirmative relief.” The only claim in Mefford’s pleading to which this could refer is her breach of contract claim. Therefore, the breach of contract claim and its attendant claim for attorney’s fees under section 38.001 of the civil practice and remedies code were not severed from St. Paul’s claim for judicial review of the decision of the Texas Workers’ Compensation Commission.

Having determined that Mefford’s claims for breach of contract and attorneys’ fees were before the trial court, we must determine whether they were disposed of in the trial court’s order granting Mefford’s motion for summary judgment. Mefford moved for summary judgment “on plaintiff’s [St. Paul’s] cause of action for judicial review of the Texas Workers’ Compensation Commission Panel’s Decision No. 95-0606.” Although Mefford does not expressly mention her breach of contract claim in her motion for summary judgment, she asserts that St. Paul has not paid the insurance benefits for which it is liable to her. This appears to be the gravamen of her breach of contract claim. Mefford’s motion for summary judgment includes a claim for attorney’s fees but does not specify the legal authority supporting her claim. Mefford’s motion for summary judgment concludes with a prayer that “this Motion for Summary Judgment be granted in all respects.”

Before the trial court ruled on Mefford’s motion for summary judgment, the parties filed a rule 11 agreement in the form of a confirmation letter from St. Paul’s attorney to Mefford’s attorney stating: “This will confirm that you are withdrawing from your motion for summary judgment any claims for attorney’s fees against my client, St. Paul Fire and Marine Insurance Company. This will further confirm that St. Paul Fire and Marine Insurance Company need not file a response to your claim for attorney’s fees since you are not pursuing such claim.” This agreement provides that the claim for attorney’s fees was removed from the relief sought in Mefford’s motion for summary judgment; it does not purport to nonsuit the claim for attorney’s fees. Thus, the claim for attorney’s fees remained before the trial court.

The trial court’s order granting Mefford’s motion for summary judgment states: “After considering the motion and the response, and after a hearing on the motion, the court is of the opinion that the motion should be: In all things GRANTED.” The order did not include a “Mother Hubbard” clause purporting to dispose of all pending claims. Cf. Mafrige v. Ross, 866 S.W.2d 590, 592 (Tex.1993).

From these facts, two possibilities arise: (1) the summary judgment disposed of Mefford’s breach of contract claim by necessary implication, leaving only Mefford’s claim for attorney’s fees for breach of contract still pending before the trial court; or (2) the summary judgment disposed of neither the breach of contract nor the attorney’s fees claim, leaving both of those claims pending. Either way, the trial court’s judgment is interlocutory, not final. We hold that we lack jurisdiction over this appeal. See North East Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex.1966); New York Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 678-79 (Tex.1990).

*3 The parties have requested, pursuant to rule of appellate procedure 27.2, that we permit them to obtain, by modification, a final judgment from the trial court and file it with this Court in a supplemental clerk’s record. See  Tex.R.App. P. 27.2.¹ We treat this portion of their responses to our rule 42.3 notice as a joint motion for leave to file a supplemental transcript, and, by separate order, we grant this motion.

	Footnotes
1		Rule 27.2 provides, “The appellate court may allow an appealed order that is not final to be modified so as to be made final and may allow the modified order and all proceedings relating to it to be included in a supplemental record.” Tex.R.App. P. 27.2.