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Click here for the full text of this decision FACTS:This is a restricted appeal from a summary judgment. Manuel Rivero complains the trial court’s judgment granted relief not sought in the pleadings and that he was deprived of notice of the proceedings against him. HOLDING:Affirmed. The pivotal question to be answered when analyzing the participation requirement of a restricted appeal is whether appellant took part in the decision-making event that results in the adjudication of his rights. Texaco Inc. v. Central Power & Light Co., 925 S.W.2d 586 (Tex. 1996). In the context of a summary judgment, a restricted appeal is not available to a party who takes part in all necessary steps of the summary judgment proceedings but merely fails to attend the summary judgment hearing. Rivero did not respond to or appear at the hearing on Blue Keel’s motion for summary judgment. Consequently, Rivero did not participate in the actual decision-making event from which the judgment against him resulted. Rivero did not sufficiently participate in the “actual trial” of the case so as to preclude relief by restricted appeal. Blue Keel’s petition named Rivero as a defendant and alleged specifically all but the last element to establish Rivero’s liability under his guaranty. Although the petition’s prayer does not specifically request relief against Rivero, the pleading gives fair notice that Rivero was being sued in his individual capacity as a guarantor under the lease agreements. Moreover, any dispute over the sufficiency of the pleading to state a cause of action against Rivero based on his guaranty should have been raised by appellant by special exception. The trial court’s summary judgment against Rivero is supported by the pleadings. Rivero also complains he was deprived of notice of the proceedings against him because his attorney never forwarded to him Blue Keel’s requests for admissions, summary judgment motion, or post-judgment motions. Rivero asserts that because of his attorney’s repeated failure to respond to Blue Keel’s discovery requests and motions, the trial court should have required that Rivero be personally notified after Rivero’s counsel failed to respond to Blue Keel’s post-judgment motions. The record contains no indication that Rivero did not receive copies of Blue Keel’s filings. Instead, it simply reveals that neither Rivero nor his counsel responded to these filings. A silent record is insufficient to establish error in a restricted appeal when no one has the duty to ensure notice was affirmatively shown in the record. Rivero’s counsel had been of record with the court since he filed an answer on Rivero’s behalf. He remained Rivero’s counsel of record throughout the pendency of the litigation. Thus, it was proper for Blue Keel to send all discovery requests, notices, and motions to his attention. The court finds no authority that would require Blue Keel to serve Rivero personally in addition to his counsel of record. Accordingly, Rivero’s notice complaint does not establish error apparent from the face of the record. OPINION:Morris, J.; Morris, Wright and Richter, JJ.

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