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Click here for the full text of this decision FACTS:The trial court dismissed Karen Gold’s bill of review because she did not file a restricted appeal first, and the court of appeals affirmed. HOLDING:Reversed and remanded. A restricted appeal was available to Karen Gold only if she 1. filed within six months of judgment; 2. was a party to the underlying suit; 3. did not participate in the dismissal hearing; and 4. showed error apparent on the face of the record. As she filed her bill of review two days short of six months, she could have met the first three requirements, but not the fourth. The court recently reaffirmed that the absence in the record of any proof that notice of intent to dismiss was sent to a party is “just that – an absence of proof of error.” Alexander v. Lynda’s Boutique, 134 S.W.3d 845 (Tex. 2004). Accordingly, it is not error apparent on the face of the record and could not support a restricted appeal. The court has never held that failing to file a restricted appeal bars a bill of review. The court has recognized only three prerequisites for such bills: 1. a meritorious defense; 2. that was not made due to fraud, accident or wrongful act by an opponent or official mistake by a clerk; and 3. unmixed with any fault or negligence of the party filing the bill. Failure to file a restricted appeal could only be relevant to the last, and then only if it constituted fault or negligence. The court holds it does not. If a motion to reinstate, motion for new trial, or direct appeal is available, it is hard to imagine any case in which failure to pursue one of them would not be negligence. But the same cannot be said about choosing to appeal by bill of review rather than a restricted appeal, for several reasons: 1. a bill of review allows trial courts to rectify their own errors, eliminating the need for lengthy appellate review; 2. all facts may be considered, not just those appearing on the face of the record; 3. discovery is available to find out what all the facts are. Finally, it avoids the need to follow both avenues of appeal seriatim. In addition to her failure to file a restricted appeal, the trial court found two other reasons for dismissing Karen’s bill of review. First, the court found that dismissal of the underlying case resulted at least in part from her own negligence. While the parties disputed whether she might have prosecuted her case more diligently, in any event she was entitled to notice and an opportunity to be heard before it was dismissed. Villarreal v. San Antonio Truck & Equipment, 994 S.W.2d 628 (Tex. 1999). As it is undisputed she got neither, the dismissal was erroneous. Finally, the trial court found that Karen failed to exercise diligence in discovering the case had been dismissed. Karen had no duty to find out more about the status of the case until she had some reason to suspect it had been dismissed. OPINION:Per curiam.

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