concurring.
Although I concur in the results of the majority opinion, I write separately to clarify the effect of the prior opinion from this court. Contrary to appellee’s assertions, this court did not dismiss the appeal for lack of jurisdiction, nor did we limit the reversal to only certain issues. Employers Casualty Co. v. Graham, No. 04-92-00650-CV (Tex.App.— San Antonio Jan. 26, 1994, writ denied) (not designated for publication).
This court’s opinion in cause number 04-92-00650-CV states
The summary judgment order appears to be final, as evidenced by the Mother Hubbard clause. The judgment, however, grants more relief than requested: In essence, the summary judgment motions addressed only whether Zapata and its driver had insurance coverage. The summary judgment motions, however, did not address whether Employers was negligent, grossly negligent, or violated the DTPA by denying coverage to Zapata and its driver: *730all contentions raised by the Graham-Zapata petition.
We determined that the judgment issued by the trial court had granted more relief than requested under the cross motions for summary judgment. The substantive issues of the underlying ease should not have been determined in the motion for summary judgment. Therefore, under Mafrige v. Ross, 866 S.W.2d 590 (Tex.1993), we were required to reverse and remand the case. Because the remand was not limited to correct technical or procedural issues only, and liability had not been established in the prior record, the bond should have been released. See Resolution Trust Corp. v. Chair King, Inc., 827 S.W.2d 546, 550 (Tex.App. — Houston [14th Dist.] 1992, no writ); accord Neeley v. Bankers Trust Co. of Texas, 848 F.2d 658, 660 (5th Cir.1988).
Even though the result is a very harsh one for the plaintiff, I have no other option but to follow the law.
APPENDIX 1
COURT OF APPEALS FOURTH COURT OF APPEALS DISTRICT OF TEXAS SAN ANTONIO
OPINION
Appeal No. 04-92-00650-CV
Employers Casualty Company, Appellant v. John Frank Graham, Cherie Canion Graham, Leonel M. Valadez, and Zapata Ready Mix, Appellees
Appeal from the 49th District Court of Zapata County Trial No. 2768 Honorable Manuel R. Flores, Judge Presiding.
Opinion by: Alma L. Lopez, Justice
Sitting: Alfonso Chapa, Chief Justice, concur with results
Orlando Garcia, Justice
Alma L. Lopez, Justice
Delivered and Filed: January 26,1994
REVERSED & REMANDED.
An insurance company appeals from a summary judgment which established its liability pursuant to an insurance contract. We reverse the summary judgment and remand to the trial court.
FACTS
Vidaurri Trucking Company (Vidaurri) had been hired to build a road and to clear a pad for an oil drilling rig. To complete the job, Vidaurri hired Zapata Ready Mix (Zapata) to haul caliche to the work site. One day at the work site, a Zapata truck ran over John Graham thereby injuring him. Graham and his wife sued Vidaurri and Zapata for negligence claiming respondeat superior and loaned servant. The trial court granted Vi-daurri’s motion for summary judgment and severed the cause of action from the remaining claim against Zapata. A bench trial resulted in a $520,000.00 judgment against Zapata and the truck driver.
Vidaurri was insured by — Employers Casualty Company (Employers) Employers denied coverage to Zapata. The Grahams, Zapata, and the Zapata truck driver filed suit against Employers for negligence and breach of contract for denying coverage and for failing to provide a defense.
The Grahams and Zapata filed a motion for summary judgment addressing Employers’ liability pursuant to Vidáurri’s insurance contract and Texas motor carrier law; the motion was denied. Employers filed a motion for summary judgment asserting collateral estoppel. The Grahams and Zapata filed a motion to reconsider their motion for summary judgment. The trial court considered the motion to reconsider and Employers’ motion for summary judgment together. The Graham-Zapata summary judgment motion (Zapata summary judgment motion) was granted but Employers’ motion for summary judgment was denied.
Employers files this appeal.
APPELLATE JURISDICTION
Employers alleges the trial court erred by granting Zapata’s summary judgment and by failing to grant its motion for summary judgment.
*731“In order to be a final, appealable summary judgment, the order granting the motion must dispose of all parties and all issues before the court. If the order does not dispose of all issues and all parties, it is interlocutory and therefore not appealable absent a severance.” Mafriae v. Ross, 37 Tex. Sup.Ct. J. 82, 83 (Oct. 27,1993) (citation omitted).
Jurisdiction can neither be conferred by agreement nor waived. Duncan v. Tweedy, 582 S.W.2d 614, 615 (Tex.Civ.App. — Dallas 1979, no writ). “The question of jurisdiction is fundamental and can be raised at any time.” Tullos v. Eaton Corp., 695 S.W.2d 568, 568 (Tex.1985). It is reversible error for an intermediate appellate court to erroneously exercise its jurisdiction. See Tullos, 695 S.W.2d at 568-69. Therefore, we consider whether this cause is a final, appealable summary judgment.
The Grahams, Zapata, and the Zapata truck driver pleaded in their Second Amended Original Petition that by denying Zapata and the truck driver coverage for Graham’s claim and by failing to provide a defense, Employers “committed acts of negligence, negligence per se violations of Texas Deceptive Trade Practice and Unfair Claim Practices Acts, failure to act in good faith and deal fairly required in connection with insurance contracts, and gross negligence and breach of contract in Zapata County, Texas.” The plaintiffs prayed for both actual and exemplary damages.
The Zapata summary judgment motion alleged that Zapata and its driver were insureds under Vidaurri’s insurance contract pursuant to either the Texas motor carrier laws or pursuant to the contract’s hired automobile endorsement.
Employers responded to Graham’s motion for summary judgment by arguing the court was collaterally estopped from granting the motion: Vidaurri’s summary judgment established that Zapata was an independent contractor. Consequently, Zapata was not a hired or leased vehicle pursuant to the hired automobile endorsement. Alternatively, Zapata factually does not fall within the hired automobile endorsement. Finally, article 91 IB at most makes Vidaurri liable for Zapata’s negligent acts but does not make Employers the insurer of Zapata. Article 911B was not pleaded in the first cause of action; the finding of no liability collaterally estops this assertion now.
Employers filed a motion for summary judgment alleging the same collateral estop-pel argument made in its response to Zapata’s summary judgment motion.
The trial court denied Zapata’s summary judgment motion not because of a question of law but because a fact issue exists. The Grahams and Zapata filed a motion to reconsider their motion for summary judgment. The trial court considered the motion to reconsider and Employers’ summary judgment motion together. The Zapata summary judgment motion was granted but Employers’ summary judgment motion was denied. The final judgment awarded the Grahams the $500,000.00 policy limit; attorney fees; prejudgment and post-judgment interest; and included a Mother Hubbard clause reciting “all relief not specifically granted herein is denied.”1
The summary judgment order appears to be final, as evidenced by the Mother Hubbard clause. The judgment, however, grants more relief than requested: In essence, the summary judgment motions addressed only whether Zapata and its driver had insurance coverage. The summary judgment motions, however, did not address whether Employers was negligent, grossly negligent, or violated the DTPA by denying coverage to Zapata and its driver: all contentions raised by the Graham-Zapata petition.
The Texas Supreme Court has held that: If a summary judgment order appears to be final, as evidenced by the inclusion of language purporting to dispose of all claims or parties, the judgment should be treated as final for purposes of appeal. If the judgment grants more relief than re*732quested, it should be reversed and remanded, but not dismissed.
Mafrige, 37 Tex. Sup.Ct. J. at 84. Consequently, we reverse and remand the cause.
ALMA L. LOPEZ,
Justice
APPENDIX 2
COURT OF APPEALS FOURTH COURT OF APPEALS DISTRICT OF TEXAS SAN ANTONIO
OPINION
Cause No. 04-95-00568-CV
Amwest Surety Insurance Company, Relator, v. The Honorable Manuel R. Flores, Respondent.
From the 49th District Court of Zapata County Trial Court No. 2768
ON RELATOR’S PETITION FOR WRIT OF MANDAMUS
Opinion by: Catherine M. Stone, Justice
Concurring opinion by: Paul W. Green, Justice
Sitting: Alma L. Lopez, Justice
Catherine M. Stone, Justice
Paul W. Green, Justice
Delivered and Filed: October 25,1995
PETITION FOR WRIT OF MANDAMUS DENIED
The relator is the surety for a supersedeas bond. The issue in this original proceeding is whether the trial court, in applying the supersedeas bond to the amended final judgment. committed a clear abuse of discretion which provided no adequate remedy by appeal to the relator. We find that relator has an adequate remedy by appeal, therefore, we deny the petition for writ of mandamus.
Procedural History
On June 13, 1992, the trial court entered an interlocutory summary judgment in favor of plaintiffs, after which plaintiffs waived their remaining claims and requested entry of a final judgment. On July 20, 1992, the court entered a judgment captioned “Final Judgment” granting plaintiffs a million dollar money judgment against Employers Casualty Company. The judgment contained the briefest of “Mother Hubbard” clauses. After its motion for new trial was denied, Employers Casualty filed a supersedeas bond in the amount of $1,239,130.50 on December 3, 1992, seeking appellate review of the judgment. The record on appeal, however, did not include the motion for final judgment in which the waiver of other claims occurred. On January 27, 1994, this court reversed and remanded the case for want of jurisdiction because the judgment appeared to grant more relief than requested in the motion for summary judgment. Following a denial of plaintiffs’ application for writ of error to the supreme court, our mandate to reverse and remand issued on December 29,1994.
During the pendency of the appeal, Employers went into receivership, and a receiver appointed by the Texas Commissioner of Insurance made an appearance on behalf of Employers in the post-trial proceedings. In January 1995, Employers filed a motion to release the supersedeas bond and obtained an ex parte order to that effect from the trial court. On January 23, 1995, when plaintiffs received notice of the order releasing the bond, they immediately obtained a stay of the release from the court until the issue concerning the supersedeas bond could be properly determined.
Plaintiffs then filed another motion to enter final judgment. This motion again waived any remaining claims and sought entry of judgment based upon the summary judgment of June 13, 1992. This time, the judgment recited the waiver- of plaintiffs’ remaining claims, and incorporated the 1992 judgment into an amended final judgment which was entered on February 28, 1995. The time for appeal on the amended judgment expired and plaintiffs moved to apply the 1992 supersedeas bond to the amended *733final judgment pursuant to the turnover statute,.tex. CIV. PRAC. & REM. CODE § 31.002(b)(2). Following a hearing at which counsel for the plaintiffs and the surety appeared, the trial court ordered the superse-deas bond applied to the 1995 judgment. On July 27, 1995, relator sought leave to file a petition for writ of mandamus to order the trial court to rescind its order of July 17, 1995, and to release the supersedeas bond to the surety. On August 4, 1995, relator also filed a notice of appeal.
Standard of Review
Mandamus will issue only to correct a clear abuse of discretion or violation of a duty imposed by law when that abuse cannot be remedied by appeal. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992). Jurisdiction by this avenue is available in limited circumstances and the burden of showing that these two requirements are met is a heavy one. See Lutheran Social Serv., Inc. v. Meyers, 460 S.W.2d 887, 889 (Tex.1970). The requirement of an inadequate legal remedy is met only when the parties are in danger of permanently losing substantial rights. Canadian Helicopters Ltd. v. Wittig, 876 S.W.2d 304, 306 (Tex.1994).
Adequate Remedy at Law
Shortly after filing the instant application for extraordinary relief, relator also perfected its appeal on the turnover order which is the subject of both proceedings pending in this court. Nevertheless, relator stated in its mandamus petition that it has no adequate remedy on appeal because if it does not comply with the turnover order it may be subject to contempt of court. See Hennessy v. Marshall, 682 S.W.2d 340, 343 n. 1 (Tex.App. — Dallas 1984, orig. proceeding) (writ issued in light of potential contempt proceedings for failure to obey void order). The Hennessy case is distinguishable on its facts. The relator in Hennessy had not perfected an appeal at the time the mandamus was submitted, as relator has done in this case.
Real parties concede that the surety has standing to appeal the turnover order. It is clear that third parties to a turnover proceeding have a right to appeal from a post-judgment turnover order to protect their affected property interests. Schultz v. Fifth Judicial District Court of Appeals, 810 S.W.2d 738, 740 (Tex.1991) (orig.proceeding); International Paper Co. v. Garza, 872 S.W.2d 18, 19 (Tex.App. — Corpus Christi 1994, orig. proceeding). Moreover, jurisdiction over any potential contempt proceedings for failure to obey Judge Flores’ order lies with this court, not the trial court, while the appeal is pending. See Schultz, 810 S.W.2d at 740. No such proceedings have been instituted at this time. Consequently, the majority holds that, relator has an adequate remedy at law. Petition for writ of mandamus is denied.
CATHERINE M. STONE Justice. Recognized Mother Hubbard clauses include: all relief not expressly granted is denied; the summary judgment is granted as to all claims asserted by plaintiff; and plaintiff takes nothing against defendant. See Mafriae v. Ross, 37 Tex. Sup.Ct. J. at 83 n. 1.