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St. Paul Insurance Co. v. Mefford11/30/1998
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. ยง 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.
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 decisio
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