Court of Appeals of Texas,

Houston (14th Dist.).

EMPLOYERS CASUALTY COMPANY, Appellant,

v.

Ida Nell JONES, Individually and as Administrator of the Estate of Willie Lee Jones and as Next Friend of Cherlyn Nicole Jones and Rodney Lamont Jones, Marques O’Neal Jones, Reginald Lee Jones, and Ford Motor Company, Appellees.

No. 14-96-00996-CV.

|

Feb. 6, 1997.

Before YATES, HUDSON and FOWLER, JJ.

OPINION

PER CURIAM.

*1 This is an appeal from a dismissal for want of prosecution. In three points of error, appellant attacks the trial court’s dismissal. We reverse the judgment and remand the case.

In the trial court, Ida Nell Jones, Individually and as Administrator of the Estate of Willie Lee Jones and as Next Friend of Cherlyn Nicole Jones and Rodney Lamont Jones, Marques O’Neal Jones, Reginald Lee Jones (the Jones plaintiffs) were the plaintiffs and Ford Motor Company (Ford) was a defendant. Employers Casualty Company (Employers) was the intervenor.

In March 1990, Willie Lee Jones was killed when a tractor-trailer he was driving went out of control, left the roadway and overturned. The Jones plaintiffs and Employers contended that Ford manufactured the 1985 F9000 Truck Tractor involved in the accident and was negligent in the design, marketing, and manufacture of a part that caused the accident, and was liable under causes of action for strict products liability, negligence, gross negligence, and breach of warranty.

At the time of the accident Willie Lee Jones was in the course and scope of his employment with Central Freight Lines. Employers carried a policy of workers compensation insurance with Willie Lee Jones’s employer and paid workers compensation death benefits to the Jones plaintiffs in the amount of $78,052.45.

The Jones plaintiffs filed their original petition on March 27, 1992. Employers filed its petition for intervention on June 4, 1993, claiming a subrogation interest on any recovery by the Jones plaintiffs. On August 21, 1995, the Jones plaintiffs and Ford filed a “Joint Motion to Dismiss,” requesting entry of an order dismissing all claims against Ford with prejudice. On August 23, 1995, the court signed the “Partial Final Judgment” submitted by the Jones plaintiffs and Ford. The Partial Final Judgment contained the following language: “[A]ll liens and/or interventions claiming by, through, or on behalf of [plaintiffs] are dismissed with prejudice.”

Employers did not approve the motion to dismiss and the underlying settlement of approximately $40,000.00, did not sign the judgment, and received none of the settlement funds. The motion was not served on the Employers’ counsel of record, but was served on a former counsel of record, who had not been counsel of record for more than a year and a half at the time the motion was filed.

On March 8, 1996, Employers filed a Motion to Retain and to Set Aside Partial Final Judgment. Ford filed a response, requesting a hearing, and agreed that the judgment should be set aside. The court did not set the Motion to Retain and to Set Aside Partial Final Judgment for oral hearing, did not rule on the motion, and on April 18, 1996, dismissed the case for want of prosecution. On May 20, 1996, Employers filed a Motion to Reinstate and for New Trial, requesting an oral hearing. The court did not set the motion for hearing and did not rule on the motion. The motion was overruled by operation of law.

*2 Employers filed its brief in this appeal on September 13, 1996. On October 8, 1996, Ford filed a letter urging this court to grant appellant’s requested relief. On November 11, 1996, the clerk of this court wrote counsel for all parties. In that letter the clerk told the parties that if the Jones plaintiffs (appellees) did not file a response to appellant’s brief or a request to extend time for filing a response within 10 days of the date of the letter, the court would submit the case without argument.

The court received no response to the letter. Accordingly, we grant the relief Employers and Ford have requested. We reverse the judgment of the trial court and remand this case to the trial court for a hearing on the Motion to Reinstate and for New Trial.