dissenting.
The majority concludes the respondent’s December 31, 1991 dismissal order is interlocutory. Because of this conclusion, the majority denies the writ of mandamus. I think the order is final. I would grant the writ. I respectfully dissent.
THE UNDERLYING LITIGATION
In September 1990, real parties in interest William Max Schmidt and his wife sued relators Eduardo Macarangal and Metro Airlines, Inc. The Schmidts’ causes of action against relators arose from injuries Mr. Schmidt sustained in an accident at the Dallas/Fort Worth Airport in July 1989, when a baggage conveyor driven by Mr. Schmidt collided with a Metro Airlines van operated by Macarangal. In February, National Union Fire Insurance Company of Pittsburgh, Pennsylvania, intervened in the suit to secure reimbursement of workers’ compensation benefits it paid to Mr. Schmidt.
The Schmidts’ attorney did not take certain action respondent requested. Respondent dismissed the cause for want of prosecution on December 31, 1991. The Schmidts filed an unverified motion to reinstate on January 21, 1992. On February 14, 1992, the Schmidts filed an amended motion to reinstate, which they verified. Despite relators’ contention that his plenary jurisdiction had expired, respondent signed an order reinstating the cause on March 2,1992. The relators filed this original proceeding for writ of mandamus asserting that respondent lacked jurisdiction to enter the March 2 order. Relators contend the order is void because the court signed it after the court’s plenary jurisdiction expired.
THE ISSUE
The majority recognizes that the issue is whether respondent’s dismissal order is final. If it is final, respondent lost plenary jurisdiction to rule on the Schmidts’ February amended motion to reinstate. See McConnell v. May, 800 S.W.2d 194 (Tex.1990) (orig. proceeding). If it is interlocutory, respondent retained jurisdiction and could rule on the February amended motion to reinstate. See Massey v. Davis, 650 S.W.2d 551, 554 (Tex.App. — Eastland 1983, writ ref’d n.r.e.).
THE PARTIES’ CONTENTIONS
A. Relators
Relators contend the dismissal order entered on December 31, 1991, is a final order. Relators argue the order disposed of the claims of plaintiffs Schmidt and inter-venor National Union Fire Insurance Company of Pittsburgh, Pennsylvania. Rela-tors contend that because the plaintiffs and intervenor did not file a verified motion within thirty days of the entry of the December 31, 1991 dismissal order, respondent’s jurisdiction to reinstate the case expired on January 30, 1992. Relators argue that respondent abused his discretion when he granted the Schmidts’ motion to reinstate.
B. Respondent and Real Parties in Interest
Respondent and the real parties in interest contend that the December 31, 1991 dismissal order was interlocutory because it did not dispose of National’s claim in intervention. Respondent and the real parties in interest additionally argue that reinstatement was proper because neither they nor their attorneys received notice of the proposed dismissal.
THE APPLICABLE LAW
A. Motion to Reinstate
Rule 165a of the Texas Rules of Civil Procedure governs the reinstatement of cases dismissed for want of prosecution. See Tex.R.Civ.P. 165a. That rule requires a party seeking reinstatement to file a verified motion to reinstate within thirty days after the court signs the dismissal order or *637within the period provided by rule 306a. Tex.R.Civ.P. 165a(3). McConnell, 800 S.W.2d at 194; Butts v. Capitol City Nursing Home, Inc., 705 S.W.2d 696, 697 (Tex.1986). A trial court’s jurisdiction to reinstate a case expires within thirty days of the date of the entry of the dismissal order unless a party files a verified motion to reinstate within that thirty-day period. McConnell, 800 S.W.2d at 194; Butts, 705 S.W.2d at 697.
B. Finality of the Dismissal Order
To be final, a judgment must dispose of all issues and parties in a case. North East Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex.1966). When a trial court renders a judgment not intrinsically interlocutory in character in a case regularly set for conventional trial on the merits, we presume for appellate purposes the trial court intended to, and did, dispose of all parties legally before it and of all issues made by the pleadings between the parties. Aldridge, 400 S.W.2d at 897-98. This rule is subject to an exception in those cases where the judgment dismisses the case for want of prosecution. Aldridge, 400 S.W.2d at 897.
Where the court dismisses the plaintiffs suit and does not refer to or mention the defendant’s cross action, the judgment does not dispose of the cross action, expressly or by implication, and is therefore not a final judgment as will authorize an appeal from it. See Davis v. McCray Refrigerator Sales Corp., 136 Tex. 296, 150 S.W.2d 377, 378 (1941).
C. Workers’ Compensation Subrogation
A claim for recoupment of compensation is a derivative cause of action under article 8308-4.05(b). See Tex.Rev.Civ.Stat.Ann. art. 8308-4.05(b) (Vernon Supp.1992). The recoupment depends upon the injured employee’s recovery of damages from injuries sustained because of the act or omission of a third party. Yeary v. Hinojosa, 307 S.W.2d 325, 332 (Tex.Civ.App. — Houston [1st Dist.] 1957, writ ref’d n.r.e.). There is but one cause of action against the third-party tortfeasor. Fort Worth Lloyds v. Haygood, 151 Tex. 149, 246 S.W.2d 865, 868 (1952). No cause of action exists in favor of the injured employee except for the damages, if any, suffered in excess of the amount of compensation insurance collected by the employee. Fort Worth Lloyds, 246 S.W.2d at 868. That cause of action is that of the employee, who owns it burdened by the insurance carrier’s right to recover the compensation it paid the employee. Fort Worth Lloyds, 246 S.W.2d at 868; Phennel v. Roach, 789 S.W.2d 612, 615 (Tex.App. — Dallas 1990, writ denied); Evans v. Venglar, 429 S.W.2d 673, 675 (Tex.Civ.App. — Corpus Christi 1968, no writ).
THE MAJORITY’S CONCLUSIONS
The majority, while recognizing the derivative nature of the carrier’s subrogation claim, observes that it is well established that the Workers’ Compensation Act authorizes the carrier to bring suit against the third-party tortfeasor without joining the employee. See Watson v. Glens Falls Ins. Co., 505 S.W.2d 793, 796 (Tex.1974). Thus, the majority observes that National Union could have asserted its subrogation claim against relators even in the absence of a suit by the Schmidts.
The majority concludes that the dismissal order is at best ambiguous in its treatment of National’s subrogation claim. The majority uses this conclusion to dispose of this Court’s holding in Phennel. The majority then notes that because the order is a dismissal for want of prosecution, there is no presumption that the trial court disposed of the subrogation claim. Without analysis, the majority then concludes that because of its first two conclusions, National’s claim is transformed from a subrogation claim, which is wholly derivative in nature, to an affirmative counterclaim or cross action.1 I cannot agree with the majority’s suppositions or conclusions.
*638DERIVATIVE NATURE OF THE SUBROGATION CLAIM
National intervened in the Schmidts’ action against Macarangal and Metro. National claimed subrogation rights to the Schmidts’ causes of action against relators for the workers’ compensation benefits National Union paid to Mr. Schmidt. See Tex.Rev.Civ.Stat.Ann. art. 8308-4.05(b) (Vernon Supp.1992). National’s claim is wholly derivative of the Schmidts’ claim against Macarangal and Metro. Fort Worth Lloyds, 246 S.W.2d at 868; Phennel, 789 S.W.2d at 615; City of Houston v. Twin City Fire Ins. Co., 578 S.W.2d 806, 808 (Tex.Civ.App. — Houston [1st Dist.] 1979, writ ref’d n.r.e.). National’s claim for recoupment of compensation benefits paid to the Schmidts depends upon the Schmidts’ recovery from relators. Yeary, 307 S.W.2d at 332. There is but one cause of action against rela-tors — that of the Schmidts, who own it burdened by National’s right to recoup compensation paid. Fort Worth Lloyds, 246 S.W.2d at 870; Phennel, 789 S.W.2d at 615; Evans, 429 S.W.2d at 675.
Rule 165a(3) required the Schmidts to file a verified motion to reinstate within thirty days after the court signed the dismissal order. See Tex.R.Civ.P. 165a(3). If a party seeking reinstatement does not file a verified motion within thirty days of the dismissal order, the trial court’s jurisdiction to reinstate the case expires. McConnell, 800 S.W.2d at 194; Butts, 705 S.W.2d at 697.
In this case, the trial court signed the dismissal order on December 31,1991. The thirty-day period required by rule 165a(3) ended January 30, 1992. The Schmidts did not file their verified amended motion to reinstate until February 14, 1992. The trial court’s jurisdiction expired January 30, 1992.
Because the Schmidts did not follow rule 165a(3), and because National’s claim for recoupment of workers’ compensation benefits was a derivative claim dependent upon the Schmidts’ recovery, the Schmidts’ failure to follow the rule was fatal to National’s subrogation suit. I would hold that the trial court’s December 31, 1991 dismissal order was a final order disposing of Schmidts’ personal injury claim and National’s derivative subrogation claim.
AUTHORITIES ARE DISTINGUISHABLE
The majority relies upon Massey and Legrand v. Niagara Fire Insurance Co., 743 S.W.2d 241 (Tex.App. — Tyler 1987, no writ), to support its conclusions. The respondent and the real parties in interest also rely on Legrand and Tramco Enterprises, Inc. v. Independent American Savings Ass’n, 739 S.W.2d 944 (Tex.App. — Fort Worth 1987, no writ), to support their contentions. In my view, Massey, Legrand, and Tramco are all distinguishable.
In Massey, both the intervenors and the defendants filed cross actions for affirmative relief. The trial court dismissed the plaintiff’s cause of action for want of prosecution. Subsequently, a new judge reinstated the case on the docket. Both the dismissal and reinstatement orders were entered without notice to the parties or their attorneys. On appeal, the Massey defendants contended that the reinstatement order was void because the trial court signed it more than thirty days after entry of the order of dismissal. The Massey court held that the original dismissal order was interlocutory because it did not dispose of all the parties and issues pending before the court. The court reached this conclusion because there were affirmative cross actions pending. The Massey court relied on Davis and Barrier v. Lowery, 118 Tex. 227, 13 S.W.2d 688 (1929) (on reh’g), to support this conclusion.2 Massey differs from this case because independent cross actions were pending in Massey rather than a purely derivative action as in this case.
In Legrand, Legrand sued an insurance company, her former husband, and the partners of the agency that issued the poli*639cy. Legrand’s former husband filed a cross action against the insurance company and the partners. The district court sent a notice to Legrand’s former attorney of the court’s intention to dismiss her suit against the insurance company and the others for want of prosecution. Legrand and her former husband’s attorney did not receive the notice, nor did the court inform the attorney of the later dismissal order. Some months later, the attorney learned of the dismissal of Legrand’s suit against the insurance company. The court’s judgment dismissing the suit stated: “The above styled and numbered cause is hereby dismissed for want of prosecution.” That judgment made no reference to the ex-husband’s cross action.
The Legrand court held that the dismissal order was not a final judgment. The Legrand court held that the presumption of finality did not apply to this dismissal order. Because the order did not refer to or mention the ex-husband’s cross action, it was not final. See Legrand, 743 S.W.2d at 242. In Legrand, as in Massey, the cross action was not a derivative subrogation claim but an independent cross action. In my view, this factor makes the holdings of Legrand and Massey inapplicable to this case.
In Tramco, the trial court entered a dismissal with prejudice on the claims of the opposing parties in the main lawsuit. The trial court included Tramco’s intervention claim in the dismissal. Tramco’s intervention was an independent action by Tramco against parties over the foreclosure of a deed of trust covering a construction site. Tramco’s intervention action was not a derivative suit like National’s in this case. Tramco filed a writ of error to set aside the trial court’s dismissal order. In my view, Tramco does not offer support for the respondent’s position that the dismissal order is not a final judgment.
I would grant the writ. Because the majority declines to do so, I respectfully dissent.
. To bolster its conclusion that the alleged ambiguity in the order transforms National’s claim from a derivative action to an affirmative cross action, the majority relies on two summary judgment cases from this Court. The majority observes this Court declined to construe “ambiguous” summary judgment orders as final. A careful reading of both of these cases reveals that this Court did not characterize either order *638as ambiguous, nor did the court render any decision that lack of finality of the orders was because of ambiguity. See McClennahan v. First Gibraltar Bank, F.S.B., 791 S.W.2d 607 (Tex.App. — Dallas 1990, no writ); Sakser v. Fitze, 708 S.W.2d 40 (Tex.App. — Dallas 1986, no writ).
. Davis and Barrier were also cases where affirmative cross actions were pending. See Davis, 150 S.W.2d at 377; Barrier, 13 S.W.2d at 688.