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Click here for the full text of this decision FACTS:On May 28, 2004, Daisy Mae Davis sued Jim R. Smith and Cost Plus of Texas Inc. (collectively, Cost Plus) for personal injuries that she allegedly sustained when she slipped and fell on defective flooring at a Cost Plus store. According to Cost Plus, the case was set for a status conference on March 11, 2005, and for trial on March 14, 2005. At the March 11, 2005, conference, the trial was reset, and the trial court ordered the parties to appear for a subsequent status conference on July 18, 2005. The trial court’s order stated that the case would be dismissed for want of prosecution if a party failed to appear without properly notifying the court coordinator. On April 26, 2005, Davis’ counsel reminded her by letter to appear on July 18, 2005. On June 21, 2005, Cost Plus moved to compel Davis’ deposition. On July 14, 2005, the trial court ordered Davis to appear for deposition on Aug. 15, 2005. On July 18, 2005, Davis did not show up for the status conference, and the trial court dismissed her suit for want of prosecution, pursuant to the March 11, 2005, order. On July 25, 2005, Davis moved to reinstate the case, asserting that her failure to appear at the status conference was neither intentional nor the result of conscious indifference, but the result of a calendaring error. It is undisputed that on July 29, 2005, at a hearing on Davis’ motion to reinstate, the trial court took Davis’ reason for her failure to appear under advisement and did not enter a written ruling. In addition, the trial court instructed Davis to appear for deposition on Aug. 15, 2005, as previously ordered. According to Cost Plus, however, the trial court also instructed Davis to request a rehearing of her motion to reinstate once the deposition was complete. Davis disputed that the court gave such an instruction. The record does not contain a transcript of the hearing. On Aug. 15, 2005, Davis appeared for deposition and, on Sept. 12, 2005, the reporter’s certification was filed in the trial court. Davis did not seek a ruling on her motion to reinstate. Rather, on Feb. 2, 2006, Davis moved to mediate the case. The trial court responded that it dismissed the case on July 18, 2005. On April 20, 2006, Davis filed a petition for bill of review, arguing that she was unable to present the merits of her case as a result of accident and official mistake. Specifically, Davis asserted that she had mistakenly believed that the filing of the reporter’s certification was sufficient to advise the court that Davis had met the condition necessary for reinstatement. In addition, Davis asserted that there was an official mistake in that she “believed that the Court would inform her that her cause had [to] be re-docketed upon the Court receiving an affirmative proof that she had met the conditions for doing so to wit: the reporter’s certification.” Cost Plus moved to dismiss Davis’ petition for bill of review on the grounds that Davis had failed to diligently pursue a ruling on her motion to reinstate, that the trial court no longer had plenary power to reinstate the case and that Davis had negligently permitted the judgment to become final without seeking an appellate remedy. On Aug. 16, 2006, the trial court granted the motion of Cost Plus and dismissed Davis’ petition for bill of review. Davis appealed, contending that the trial court erred by dismissing her petition for bill of review. HOLDING:Affirmed. A bill of review, the court stated, is an equitable proceeding brought by a person seeking to set aside a judgment that is no longer subject to challenge by a motion for new trial or appeal. Generally, a bill-of-review plaintiff must allege and prove a meritorious claim or defense to the cause of action that supports the judgment, which she was prevented from making by fraud, accident or wrongful act of the opposing party, unmixed with any fault or negligence of her own. If the bill-of-review plaintiff alleges that judgment was rendered without proper notice, the court stated that such a plaintiff need not make a showing on the first and second elements. The plaintiff, however, must still prove the third element: that “judgment was rendered unmixed with any fault or negligence” on the plaintiff’s part. In addition, the court stated, a bill of review is proper only when a party has exercised due diligence to prosecute all adequate legal remedies against a former judgment. The court first noted that on July 18, 2005, the trial court issued an order dismissing Davis’ case. Next, on July 29, 2005, the trial court held a hearing on Davis’ motion to reinstate but did not rule at that time. Generally, the trial court had until the 75th day after it signs a dismissal order to enter a written order to reinstate, otherwise the motion is deemed overruled by operation of law. Because Davis timely filed a motion to reinstate, the trial court retained plenary power over the case for an additional 30 days beyond the 75th day. Because the trial court did not issue a signed order reinstating the case during the 105-day period after the date of the dismissal order, Davis’ motion was deemed overruled, and the judgment of dismissal became final. The court first found that Davis was not entitled to notice by postcard when her motion to reinstate was overruled by operation of law. Next, the court stated that Davis contended that the trial court orally suggested during the hearing on the motion to reinstate that the case would be reinstated upon the completion of Davis’ deposition. Even if the trial court made a such a pronouncement, the court stated, a trial court’s oral pronouncement reinstating a cause is not an acceptable substitute for the written order required by the Texas Rules of Civil Procedure. The court further stated that “Davis is charged with knowing that a case may be reinstated only by written order and that when the trial court did not issue a written order granting reinstatement within 105 days after the dismissal, the motion was overruled as a matter of law.” Davis, the court stated, failed to diligently seek a ruling on her motion to reinstate and she failed to appeal either the dismissal of the underlying action or the denial of the motion to reinstate. The court then concluded that Davis could not obtain relief by bill of review, because Davis failed to exercise due diligence in availing herself of all adequate legal remedies. Thus, the court held that the trial court did not abuse its discretion by dismissing Davis’ petition for bill of review. OPINION:Carter, J.; Nuchia, Keyes and Higley, J.J.

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