Catherine D'unger v. William N. Woolsey, Individually, and Woolsey & Schmidt, L.L.P., a Partnership ( 2006 )

                             NUMBER 13-04-110-CV

                         COURT OF APPEALS

               THIRTEENTH DISTRICT OF TEXAS

                  CORPUS CHRISTI - EDINBURG

___________________________________________________________________

CATHERINE D=UNGER,                                              Appellant,

                                           v.

WILLIAM N. WOOLSEY, INDIVIDUALLY, AND

WOOLSEY & SCHMIDT, L.L.P., A PARTNERSHIP,          Appellees.

___________________________________________________________________

             On appeal from the County Court at Law No. 2

                           of Nueces County, Texas.

___________________________________________________  _______________

                     MEMORANDUM OPINION^[1]

       Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

                      Memorandum Opinion by Justice Rodriguez

This is an appeal from a summary judgment granted in favor of appellees, William N. Woolsey, individually, and Woolsey & Schmidt, L.L.P., a partnership, on the basis that appellant, Catherine D'Unger, failed to timely and diligently pursue an available appellate remedy by restricted appeal before filing her bill of review petition.  By five issues, appellant complains that the trial court erred in granting the summary judgment.  We reverse and remand.

                                                           I.  Standard of Review

We review the granting of a traditional motion for summary judgment de novo.^[2]  Branton v. Wood, 100 S.W.3d 645, 646 (Tex. App.BCorpus Christi 2003, no pet.) (citing Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994); Tex. Commerce Bank Rio Grande Valley v. Correa, 28 S.W.3d 723, 726 (Tex. App.BCorpus Christi 2000, pet. denied)).  To prevail, the movant has the burden of showing that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law.  Id. (citing Tex. R. Civ. P. 166a(c); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991)).

II.  Analysis

A bill of review is an equitable proceeding which may be filed by a party seeking to set aside a prior judgment that is no longer subject to a timely challenge for a new trial or appeal.  Caldwell v. Barnes, 975 S.W.2d 535, 537-38 (Tex. 1998); see Tex. R. Civ. P. 329b(f). A party must meet certain requirements in order to be entitled to bill of review relief, including the requirements that all other available legal remedies have been timely and diligently pursued.  Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 927 (Tex. 1999) (per curiam).  The Texas Supreme Court has recently held that a restricted appeal^[3] is not, however, among the adequate legal remedies that a bill of review claimant must pursue.  Gold v. Gold, 145 S.W.3d 212, 214 (Tex. 2004) (per curiam).

More generally, we have never held that failing to file a restricted appeal bars a bill of review. . . .  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.  First, a bill of review allows trial courts to rectify their own errors, eliminating the need for lengthy appellate review.  Second, all facts may be considered, not just those appearing on the face of the record.  Third, discovery is available to find out what all the facts are.  Finally, it avoids the need to follow both avenues of appeal seriatim. . . .  It is true we have sometimes stated that relief by bill of review is available "only if a party has exercised due diligence in pursuing all adequate legal remedies . . . [and not] if legal remedies were available but ignored." But a party is not "ignoring" its remedies when it chooses one appellate avenue rather than another.  We have never included a restricted appeal among the "adequate legal remedies" a bill of review claimant must pursue; we have only applied this rule to motions that could have been filed in the trial court's first proceeding.

Id. at 213‑14 (citations omitted).

The sole basis for the trial court granting the summary judgment in this case was that appellant failed to timely pursue an available appellate remedy by restricted appeal before filing her bill of review petition.  By her fourth issue, appellant contends that appellees did not establish, as a matter of law, that appellant was required to file a restricted appeal as a condition precedent to filing this bill of review.  We agree.

Reviewing the granting of this traditional motion for summary judgment de novo and based on the supreme court's reasoning and conclusions set out in Gold, we conclude that appellant was not required to file a restricted appeal as a prerequisite to filing her bill of review, and, thus, appellees have not shown that they are entitled to a judgment as a matter of law.  See id. at 214.  We, therefore, sustain appellant's fourth issue.

Because of our disposition of appellant's fourth issue, we need not address the remaining issues.  See Tex. R. App. P. 47.1.

III.  Conclusion

Accordingly, we reverse the judgment of the county court at law and remand the case for further proceedings.                                                                                             

NELDA V. RODRIGUEZ

Justice

Memorandum Opinion delivered and

filed this 6th day of April, 2006.

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^[1]As this is a memorandum opinion and all issues of law presented by this case are well settled and the parties are familiar with the facts, we will not recite the law and the facts in this memorandum opinion except as necessary to advise the parties of the Court=s decision and the basic reasons for it.  See Tex. R. App. P. 47.1, 47.4.

^[2]Appellees ask this Court to apply an abuse of discretion standard of review in this case because "the trial court's granting of the Appellees' Motion for Summary Judgment operated as a denial of D'Unger's Petition for Bill of Review."  While abuse of discretion is the proper review standard for the denial of a bill of review, see Manley v. Parsons, 112 S.W.3d 335, 337 (Tex. App.BCorpus Christi 2003, pet. denied), and while that is the effect of the judgment, this case was appealed from a summary judgment.  Thus, the appropriate standard in this case is that for the review of a summary judgment.

^[3]A restricted appeal is available only when a party appeals within six months after the judgment was signed, is a party to the suit, and must not have participated in the hearing that resulted in the judgment.  Tex. R. App. P. 26.1(c) & 30 (replacing writ of error appeals under former rule 45); Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004).  Also, the error must appear on the face of the record.  Laas v. Williamson, 156 S.W.3d 854, 857 (Tex. App.BBeaumont 2005, no pet.) (citing Quaestor Invs., Inc. v. State of Chiapas, 997 S.W.2d 226, 227 (Tex. 1999) (per curiam)).