Harris County, Texas v. Gerald Gambichler
479 S.W.3d 514
Tex. App.2015Background
- Tracey Ellis sued Gerald Gambichler for injuries from a 2009 traffic incident; Ellis testified she was a Harris County employee in a County vehicle when injured.
- Harris County intervened as Ellis’s workers’ compensation carrier seeking subrogation/reimbursement for ~$16,433.76 in benefits it paid and asserted a lien on any recovery.
- Harris County’s counsel did not appear for the jury trial that began January 13, 2014. The trial court warned at the outset that the County would be dismissed if it did not appear.
- After evidence closed and the jury deliberated, the court dismissed Harris County’s intervention "with prejudice."
- The jury awarded Ellis $3,500; the trial court entered judgment for Ellis and included the with-prejudice dismissal language as to Harris County.
- Harris County moved to modify the judgment, arguing dismissal should be without prejudice (and attaching records of benefits paid); the trial court denied the motion, stating dismissal was for want of prosecution under Tex. R. Civ. P. 165a(1).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dismissal of Harris County’s intervention for failure to appear at trial may be with prejudice | Harris County: dismissal with prejudice was improper because a dismissal for want of prosecution is not a merits determination and should be without prejudice | Ellis/Gambichler: (implicitly) trial court properly dismissed the County under Rule 165a for failing to appear | Court: Trial court abused its discretion in dismissing with prejudice; judgment reformed to dismiss Harris County without prejudice |
Key Cases Cited
- Matthews Const. Co., Inc. v. Rosen, 796 S.W.2d 692 (Tex. 1990) (dismissal with prejudice effects res judicata)
- Ritchey v. Vasquez, 986 S.W.2d 611 (Tex. 1999) (dismissal with prejudice is a final merits determination)
- Gracey v. West, 422 S.W.2d 913 (Tex. 1968) (dismissal for want of prosecution is not a judgment on the merits)
- Autry v. Dearman, 933 S.W.2d 182 (Tex. App.—Houston [14th Dist.] 1996) (workers’ compensation carrier need not intervene to preserve reimbursement rights)
- Porras v. Jefferson, 409 S.W.3d 804 (Tex. App.—Houston [14th Dist.] 2013) (trial court lacks authority to adjudicate merits by dismissing for want of prosecution)
- Vill. of Tiki Island v. Premier Tierra Holdings, Inc., 464 S.W.3d 435 (Tex. App.—Houston [14th Dist.] 2015) (dismissal without prejudice does not bar subsequent suit)