Affirmed as Modified and Opinion filed November 3, 2015.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-14-00771-CV

                    HARRIS COUNTY, TEXAS, Appellant
                                         V.
                       GERALD GAMBICHLER, Appellee

                    On Appeal from the 127th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2011-68385

                                 OPINION


      After filing an intervention in a personal injury lawsuit based on its
subrogation rights as the plaintiff’s workers’ compensation insurer, Harris County,
Texas failed to appear for trial and was dismissed from the lawsuit with prejudice
against refiling. In this appeal, Harris County simply seeks reformation of the trial
court’s judgment to indicate it was dismissed without prejudice. We agree and so
reform the judgment.
                                    Background

      Tracey Ellis sued Gerald Gambichler for injuries she sustained in a traffic
incident allegedly caused by Gambichler on November 16, 2009. Ellis, the sole
witness at trial, acknowledged she was a Harris County employee and was sitting
in a Harris County vehicle at the time of the incident. She testified extensively
regarding her injuries and treatment. Ellis filed her lawsuit on November 10, 2011.
On November 30, 2012, Harris County filed its Original Intervention, alleging
Gambichler had caused the traffic incident that injured Ellis and that Ellis had
elected to receive workers’ compensation benefits including medical treatment and
income benefits. Harris County specifically sought recovery of Ellis’s common
law damages to the extent it was entitled to recoup the workers’ compensation
benefits it had paid to her. Harris County represented in the intervention that Ellis
had been paid approximately $16,433.76 in benefits but that amount could increase
if Ellis received additional benefits. Harris County further asserted that it had a
lien against any recovery Ellis might receive from her lawsuit. Lastly, Harris
County asserted that it sustained property damages, but it did not provide any
details regarding those alleged damages.

      As noted, counsel representing Harris County did not appear for trial, which
began on January 13, 2014. At the beginning of the trial, the judge noted the
intervention and Harris County’s absence and stated: “[I]f Harris County does not
appear prior to the end of evidence in this case, the Court will dismiss Harris
County’s intervention.” After both Ellis and Gambichler rested and the jury retired
for deliberations, the judge stated: “This Court stated at the outset that once the
evidence closed, if the County had not appeared, the County would be dismissed.
The County to this date has not appeared. Evidence has been closed. The jury is
in deliberation and the Court dismisses the County’s intervention with prejudice.”

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      Thereafter, the jury returned a verdict in Ellis’s favor, assessing her total
damages to be $3,500, including $1,500 for past physical pain, $1,500 for past
mental anguish, and $500 for past physical impairment. Although asked, the jury
did not award any amount for future physical pain, mental anguish, or impairment,
or for past medical care expenses incurred by Ellis. The jury was not asked about
lost earning capacity. The trial judge then signed a judgment awarding damages to
Ellis as found by the jury. The judgment further recites that “[i]t is further ordered
and adjudged by the Court that the cause of action of Harris County, Texas is
dismissed with prejudice and that Harris County, Texas take nothing by way of this
action.”

      In its Motion to Modify the Judgment, Harris County argued that the trial
court erred in not awarding to it the sums that Ellis was to receive from
Gambichler and that even if a dismissal was warranted, it should have been
without prejudice. Harris County attached to its motion an affidavit and records
representing that Harris County paid $16,433.76 in workers’ compensation benefits
for Ellis. In its order denying the Motion to Modify, the trial court stated that
Harris County’s claims were dismissed for want of prosecution pursuant to Texas
Rule of Civil Procedure 165a(1).

                                     Discussion

      In its sole issue on appeal, Harris County contends the trial court erred in
dismissing it from the lawsuit with prejudice rather than without prejudice. When
a claim is dismissed with prejudice, a subsequent suit based on that claim is barred
by the doctrine of res judicata. See Matthews Const. Co., Inc. v. Rosen, 796 S.W.2d
692, 694 n.2 (Tex. 1990); Sommers v. Concepcion, 20 S.W.3d 27, 37 (Tex. App.—
Houston [14th Dist.] 2000, pet. denied). Dismissal of a claim without prejudice
does not prevent the filing of a subsequent action based on that claim. See Vill. of

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Tiki Island v. Premier Tierra Holdings, Inc., 464 S.W.3d 435, 444 (Tex. App.—
Houston [14th Dist.] 2015, no pet.). We generally review a trial court’s dismissal
for want of prosecution under an abuse of discretion standard. See MacGregor v.
Rich, 941 S.W.2d 74, 75 (Tex. 1997) (per curiam); Sepeda v. State, No. 14-14-
00443-CV, 2015 WL 4366220, at *2 (Tex. App.—Houston [14th Dist.] July 16,
2015, no pet. h.). A trial court abuses its discretion when it fails to analyze or
apply the law correctly. Iliff v. Iliff, 339 S.W.3d 74, 78 (Tex. 2011).

       Rule 165a provides that “[a] case may be dismissed for want of prosecution
on failure of any party seeking affirmative relief to appear for any hearing or trial
of which the party had notice.” Tex. R. Civ. P. 165a(1). It is undisputed that
Harris County sought affirmative relief and failed to appear for trial.1 It is well-
settled that dismissal of a case with prejudice functions as a final determination on
the merits. Ritchey v. Vasquez, 986 S.W.2d 611, 612 (Tex. 1999) (per curiam).
But a dismissal for want of prosecution is not a determination on the merits, and
therefore dismissal with prejudice in such circumstances is improper. Martinez v.
Benavides, No. 01-14-00269-CV, 2015 WL 1501793, at *3 (Tex. App.—Houston
[1st Dist.] Mar. 31, 2015, no pet.) (mem. op.); see also Gracey v. West, 422
S.W.2d 913, 917 (Tex. 1968) (“The judgment of dismissal of the cause for want of
prosecution is not a judgment on the merits of the cause.”); cf. Porras v. Jefferson,
409 S.W.3d 804, 807-08 (Tex. App.—Houston [14th Dist.] 2013, no pet.)
(“[T]hough a trial court has the inherent power to dismiss a case for want of
prosecution, this power does not confer upon the court the authority to adjudicate
and deny the merits of the dismissed claim.”). An order of dismissal for want of
prosecution should simply place the parties in the position they were in prior to
filing the suit. See Martinez, 2015 WL 1501793, at *3; Dick Poe Motors, Inc. v.
       1
          In its briefing, Harris County suggests that it did not receive sufficient notice of the trial
setting, but it does not raise any appellate issues based on this suggestion.

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DaimlerChrysler Corp., 169 S.W.3d 478, 485 (Tex. App.—El Paso 2005, no pet.).

         As discussed above, in the present case, a trial in fact occurred on Ellis’s
underlying personal injury claims.       However, though Harris County did not
participate in the trial, a workers’ compensation insurer is not required to intervene
in a third-party action to enforce its right to reimbursement. See Autry v. Dearman,
933 S.W.2d 182, 188 (Tex. App.—Houston [14th Dist.] 1996, writ denied); Home
Indem. Co. v. Pate, 814 S.W.2d 497, 500–01 (Tex. App.—Houston [1st Dist.]
1991, writ denied); see also Travelers Ins. Co. v. Seidel, 705 S.W.2d 278, 281
(Tex. App.—San Antonio 1986, writ dism’d) (“It is only as a matter of judicial
economy that courts permit the carrier to intervene in the suit between the
employee or his representative against the third party tortfeasor.”). Accordingly,
the trial court abused its discretion in dismissing Harris County’s claims “with
prejudice.” See Noble v. Meyers, 13 S.W. 229, 229-30, 76 Tex. 280, 281-82
(1890) (holding trial court erred in entering judgment on the merits against
intervenor who failed to appear for trial and proper judgment would have been to
dismiss intervention without prejudice). We therefore sustain Harris County’s sole
issue.

         We modify the trial court’s judgment to strike the words “with prejudice” in
the first paragraph and the words “with prejudice and that Harris County, Texas
take nothing by way of this action” in the fifth paragraph. We affirm the judgment
as so modified.


                                        /s/       Martha Hill Jamison
                                                  Justice



Panel consists of Justices Jamison, McCally, and Wise.

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