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No. 05-02-01254-CV, 7/3/2003. Civil Litigation Click here for the full text of this decision FACTS:In this case, appellant Karen Gold appeals the trial court’s final judgment denying a bill of review that sought to set aside an order of dismissal for want of prosecution. HOLDINGAffirmed. Appellant was divorced from Richard Gold Jr. in 1984. In February 2000, appellant filed a petition for enforcement against her ex-husband and his father, Richard Gold Sr., alleging Gold Jr. had fraudulently transferred community assets to Gold Sr. before the divorce in violation of a settlement agreement incident to the divorce. In her petition, appellant sought an accounting of the marital property, a constructive trust over the property and damages. Appellees each filed answers in March 2000. The trial court dismissed the petition for want of prosecution on Aug. 10, 2000. The record contains copies of two undated postcards, one addressed to Gold Jr.’s attorney and one addressed to Gold Sr.’s attorney, advising that the trial court would dismiss the case for want of prosecution under Texas Rule of Civil procedure 165a unless there was good cause to maintain the case on the docket. The postcards set a dismissal hearing for Aug. 10, 2000, at 9 a.m. The record does not contain a similar postcard addressed to appellant’s attorney. It is undisputed that appellant’s attorney did not receive notice of the dismissal hearing, did not appear at the hearing, did not receive a copy of the order of dismissal, and did not file a motion to reinstate or for new trial before the time expired to do so. Appellant learned of the dismissal in late January 2001 and informed her attorney. On Feb. 8, 2001, appellant filed a bill of review, asking the trial court to set aside the order of dismissal for want of prosecution. After a non-jury trial, the trial court denied the bill of review. The trial court later filed findings of fact and conclusions of law. In seven issues, appellant appeals the trial court’s judgment, generally claiming the trial court abused its discretion in denying her bill of review and contending some of the trial court’s findings of fact are not supported by sufficient evidence. In her seventh issue, appellant contends the trial court abused its discretion by concluding there were adequate legal remedies available to her when she filed the bill of review. In findings of fact numbers eight and nine, the trial court stated appellant discovered the dismissal herself in January 2001 and filed her bill of review on Feb. 2, 2001, before the time for filing a restricted appeal had expired. Appellant does not challenge these findings. In conclusion of law number four, the trial court determined there were adequate legal remedies still available to appellant at the time she filed the bill of review. Appellant admits the six-month deadline for filing a restricted appeal under Texas rule of appellate procedure 26.1(c) had not expired when she filed her bill of review. She argues, however, that a restricted appeal was not an adequate legal remedy because she could not prove there was error on the face of the record, a necessary element of proof for a restricted appeal. A direct attack on a judgment by restricted appeal must 1. be brought within six months after the trial court signs the judgment; 2. by a party to the suit; 3. who did not participate in the “actual trial”; and 4. the error complained of must be apparent from the face of the record. There is no dispute that appellant satisfies the first three of these elements. Appellant argues that because the record does not affirmatively establish her lack of notice of the dismissal hearing, no error is “apparent from the face of the record” and a restricted appeal was therefore unavailable to her. She suggests that the record must affirmatively show lack of notice to overcome a presumption that the trial court only acts when proper notice has been given to parties. In response, appellees contend the fact that the record contains two postcards notifying counsel of the dismissal hearing, one addressed to Gold Jr.’s attorney and one addressed to Gold Sr.’s attorney, but no postcard addressed to appellant’s attorney, indicates that the trial court did not send notice of the hearing to appellant’s attorney. They contend this error is “apparent” on the face of the record. Appellant misstates the applicable standard of review for a restricted appeal. Error on the face of the record need not be “affirmatively established,” as appellant contends; it need only be “apparent.” Having examined the record under this standard, the court conclude the error, the court’s failure to send notice of the dismissal hearing under rule 165a, was apparent on the face of the record. Although the trial court did not have a duty to ensure the record contained evidence of notice to the parties, the court did so. The record before is not silent on the issue of notice. The two postcards to appellees’ attorneys, coupled with the lack of a similar postcard to appellant’s attorney, together indicate that the trial court did not send the required notice to appellant’s attorney. In addition, the parties agree that appellant’s attorney did not receive notice of the dismissal hearing. Because there was error apparent on the face of the record, appellant could have filed a restricted appeal before the deadline. The trial court did not abuse its discretion in concluding an adequate legal remedy was available to appellant, and consequently, she was not entitled to relief by bill of review. The record contains evidence of appellant’s lack of diligence in pursuing legal remedies against the dismissal order. Approximately five weeks after the trial court signed the dismissal order, appellant’s counsel received Gold Sr.’s objections to interrogatories, one of which stated “there is no suit pending against him to which these interrogatories can apply.” Appellant’s counsel did not inquire about the meaning of that objection. Additionally, in the six-month period between the August 2000 dismissal and the February 2001 bill of review, appellant did not serve discovery, take a deposition, file any pleadings in court, request a trial setting, call the court to check the case’s status or otherwise communicate to the court, with the exception of filing a vacation letter. This evidence is sufficient to uphold the trial court’s determination of lack of diligence. The trial court did not abuse its discretion by ruling appellant failed to establish due diligence in discovering the adverse order and availing herself of adequate legal remedies. OPINION:Morris, J.; Morris, Whittington and Francis, JJ.

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