Court of Appeals of Texas, Dallas.

James WATKINS, Appellant,

v.

TEXAS WORKERS’ COMPENSATION INSURANCE FUND, Appellee.

No. 05-98-02122-CV.

|

May 25, 2001.

Before BRIDGES, FITZGERALD, and FARRIS, JJ.¹

OPINION

FARRIS.

*1 James Watkins appeals the denial of his claim for attorney’s fees out of the subrogation recovery by Texas Workers’ Compensation Insurance Fund. His complaint is based upon an agreement to conduct a separate trial on the issue of attorney’s fees. We overrule his complaint because the agreement was no longer in effect when the trial court ruled upon the attorney’s fees issue. We affirm.

Watkins was injured on the job in the course and scope of his employment and brought a third party action against three defendants. Watkins’s insurance carrier, Texas Workers’ Compensation Insurance Fund, intervened in the third party action. Watkins settled with each of the defendants. While the third party action was pending, Watkins filed a counterclaim on March 2, 1998, seeking attorney’s fees from the Fund’s subrogation. Trial had been set for March 10, 1998. The Fund filed a motion to strike the counterclaim or, alternatively, for continuance of trial on the counterclaim based on the short notice it had to prepare a defense. At a hearing on the Fund’s motion on April 17, 1998, the parties read into the record an agreement to continue the counterclaim for another time after the new April 28, 1998 trial date of the subrogation claim. No order for a separate trial was ever entered. The trial on the merits was rescheduled for August 11, and then August 28, 1998. The trial was finally held September 11, 1998, and an order was entered in favor of the Fund allowing them to treat as an advance against future benefits, $70,726.11. The Order also denied all other claims that could have been brought before the court; this included the counterclaim for attorney’s fees.

We review the trial court’s denial of the counterclaim under an abuse of discretion standard. Wood v. Tice, 988 S.W.2d 829, 830 (Tex.App.-San Antonio 1999, pet. denied). The test for abuse of discretion is whether the trial court acted without reference to any guiding rules and principles or whether the act was arbitrary and unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). The mere fact that a trial judge, within his discretionary authority, may decide a matter in a different manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred. See id. at 242.

Watkins asserts that the issue of attorney’s fees had been severed and therefore was not before the court on September 11, 1998. The record shows no agreement to sever, only a motion for a separate trial and continuance and an agreement of the same read into the record. The difference between a severance under Rule 41 and an order for separate trials under Rule 174 is that a severance divides the lawsuit into two or more separate and independent causes. Hall v. City of Austin, 450 S.W.2d 836, 837-38 (Tex.1970); TEX . R.CIV.P. 41, 174(b). An order for a separate trial leaves the lawsuit intact but enables the court to hear and determine one or more issues without trying all controverted issues at the same hearing. Id. at 838. The order entered at the conclusion of a separate trial is often interlocutory, because no final and appealable judgment can properly be rendered until all of the controlling issues have been tried and decided. Id. at 838. Here, there was never an order for either a severance or for separate trials. The Fund argues the parties’ agreement to continue Watkins’ counterclaim only pertained to the April 28, 1998 trial date and did not constitute an agreement to sever the issue of attorney’s fees.

*2 The agreement of the parties that was read into the record constitutes a trial stipulation or a rule 11 agreement. See Tex.R.Civ.P. 11. A stipulation constitutes a contract between parties. Fourticq v. Firemans Fund Ins. Co., 679 S.W.2d 562, 566 (Tex.App.-Dallas 1984, no writ). If the contract is worded so it can be given a certain or definite legal meaning or interpretation, then it is not ambiguous, and the court will construe the contract as a matter of law. Coker v. Coker, 650 S .W.2d 391, 393 (Tex.1983). If a stipulation is not clear or is ambiguous, the trial court should disregard it. See Am. Nat’l Petroleum Co. v. Transcon. Gas Pipe Line Corp., 798 S.W.2d 274, 281 (Tex.1990).

The stipulation in this case was that the parties would have a trial on the Fund’s subrogation claim on April 28, 1998, and to continue the counterclaim until another day.² If the language is unambiguous, then the stipulation refers only to the first trial date, and the trial court properly disregarded it. See Coker, 650 S.W.2d at 394. However, if the agreement could refer either to the first trial or to all trials of this case, it is ambiguous as a matter of law, and the trial court should have disregarded it. See Am. Nat’l Petroleum, 798 S.W.2d at 281. In either event, the trial court did not abuse its discretion by not applying the stipulation to the second trial.

Watkins contends the trial court cannot dismiss the counterclaim without a trial, summary judgment, or directed verdict. He claims that there was never a trial on the counterclaim. According to the judgment, however, Watkins was not denied a trial of his counterclaim. His request for attorney’s fees was not dismissed, it was denied.

The judgment states that “all causes of action seeking affirmative relief, brought herein or which could have been brought herein, not herein specifically granted are hereby in all things denied”. The counterclaim may have been set aside temporarily for a separate trial, as Rule 174(b) authorizes, but all the issues were brought back together in the later trial. TEX.R.CIV.P. 174(b).

Because the agreement was no longer in effect, the new trial setting included all matters. Although given an opportunity to do so, Watkins failed to present evidence entitling him to relief.

The judgment is affirmed.

	Footnotes
1		The Honorable David F. Farris, Retired Justice, Second District Court of Appeals, Fort Worth, Texas, sitting by assignment.
2		Mr. Dailey: … This counterclaim was recently filed. I claimed shock and surprise under the Texas Rules of Civil Procedure and filed a motion to strike and to continue. What plaintiff’s counsel has agreed to do is agreed to put off or continue any hearing if…. So he’s agreed to-to that, in effect, severance and continuance on his counterclaim and- Mr. Russell: John, I-I don’t want a severance. I want- Mr. Dailey: Continuance. Mr. Russell:-a separate trial and continuance…. Mr. Dailey: So we’ll be-the only thing we will be trying on the 28th is the apportionment issue. Anything related to the counterclaim will be put off and then tried another day, if necessary.