REVERSED AND REMANDED; Opinion filed March 22,1999

In The

Court of Appeals

Jftftlj Btstrki of Gtexas at Uallas

No. 05-97-00122-CV

STEVEN PRENTICEWORTHEN, JEAN TAGER,

AND TSAI-TEEN LEE, Appellants

V.

JASON GLATZER, Appellee

On Appeal from the 192nd District Court

Dallas County, Texas

Trial Court Cause No. 94-08401-K

OPINION

Before Justices Kinkeade, Maloney, and James

Opinion By Justice James

Steven Prentice Worthen, Jean Tager, and Tsai-Tien Lee appeal the trial court's order

rendering apost answer defaultjudgment in favor ofJason Glatzer. Intheir second point oferror,

appellants contend they are entitled to anew trial because they did not have notice ofthe September

13, 1996 trial setting at which the default judgment was entered. We agree with appellants and

conclude the trial court abused its discretion in overruling appellants' motion for new trial.

Therefore, we sustain appellants' second point oferror, reverse the trial court's judgment, and

remand this cause to the trial court.
FACTUAL AND PROCEDURAL BACKGROUND

Appellee filed suit against appellants on August 17, 1994, alleging various causes ofaction

arising out of a real estate transaction. Appellants individually filed answers and counterclaims.

The case was set for trial on September 9, 1996. Appellants concede they had notice ofthe

September 9setting; however, appellants and their counsel failed toappear in the trial court for the

hearing. Appellants' trial counsel indicated in an affidavitthat the failure to appear at the September

9 hearing was basedupon hisreliance on rule 1.18 of the Dallas CivilDistrictCourt LocalRules.

Rule 1.18 provides as follows:

The court clerk shall notify counsel in not more than four cases to be present and

ready for trial ata specified hour on the following Monday. During the following

week, the clerk shall notify counsel when to be present for trial, but no more than

three cases shall becalled for trial at any time after Monday morning.

Dallas(Tex.) Civ.Dist. Ct. Loc. R. 1.18. Appellants' trial counsel contended he did not receive

the notice prescribed by rule 1.18 from the trial court, and thus counsel believed appellants were not

required to appear in the trial court on September 9.

The case was called for trial on September 9. The judge's docket form indicates the trial

judge noted appellants had not appeared in court that day and the case was "ripe for default." The

trial court reset the trial for September 13, 1996. Neither appellants nor their counsel received

notice ofthe resetting, and, consequently, appellants did not appear at the September 13 setting.

At the September 13 setting, appellee presented evidence on his causes of action and his

damages. The trial judge signed the default judgment in favor ofappellee and against appellants

on the same day. Each appellant individually filed amotion to set aside the defaultjudgment which

included an affidavit from trial counsel indicating he did not have notice ofthe September 13

setting. Appellants also filed affidavits contending they did not have notice ofthe September 13
setting. The triai court entered findings offact and conclusions oftaw on October 21, 1996. On

November 8, 1996, the trial court denied appellants' respective motions to set aside the default

judgment and rendered a"Reformed, Corrected and Modified Post-Answer Default Judgment" in

favor ofappellee and against appellants. Appellants filed a motion to vacate the modified default

judgment and amotion for new trial.1 Appellants timely perfected their appeal from the modified

defaultjudgment.

POST-ANSWER DEFAULT JUDGMENT

In theirsecond pointoferror, appellants contend they are entitled to anew trial because they

did not have notice ofthe September 13, 1996 trial setting at which the default judgment was

entered.

Standard of Review

We review the trial court'sruling on a motion for newtrial under an abuse of discretion

standard. See Director v. Evans, 889 S.W.2d266,268 (Tex. 1994);Mosser v. Piano Three Venture,

893 S.W.2d 8, 10 (Tex. App.-Dallas 1994, no writ); see also Osborn v. Osborn, 961 S.W.2d 408,

410 (Tex. App.-Houston [1st Dist.] 1997, pet. denied). "To set aside a post-answer default on

grounds oflack of notice, thedefendant must show his failure to attend trial was not intentional or

the result ofhis conscious indifference, but was due to accident ormistake." Osborn, 961 S.W.2d

at 410. In other words, the defendant is required to prove his failure to appear attrial "was due to

his failure to receive actual or constructive notice ofthe trialsetting." See id. (citingLopez v. Lopez,

757 S.W.2d 721, 723 (Tex. 1988)). Ifthe defendant satisfies this requirement, then the trial court

The record indicates the trial court set ahearing on the motion to vacate the modified default judgment and the motion for newtrial. However,

the record does not contain any evidence regarding this hearing orthe trial court's ruling on the motions. Appellee's briefstatesthe motion to vacate

the modified default judgment and the motion for new trial were denied bythe trial court.

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abuses its discretion by denying the defendant's motion for new trial. See id at 410-11 (citing

Green v. McAdams, 857 S.W.2d 816, 818 (Tex. App.-Houston [1st Dist.] 1993, no writ)).

Notice Requirements

Once a defendant has made an appearance in a cause, he is entitled to notice of the trial

setting asa matter of dueprocess under theFourteenth Amendment tothefederal constitution. See

LBL OilCo. v. InternationalPowerServs., Inc. Ill S.W.2d 390,390-91 (Tex. 1989)(citingPeralta

v. Heights Med Ctr., Inc., 485 U.S. 80, 86 (1988)). "A fundamental element ofdue process is

adequate andreasonable noticeof proceedings." Green, 857 S.W.2d at 819.

Rule245ofthe TexasRulesof CivilProcedureallowsthetrial courtto resetcontested cases2

for trial "to alater date on any reasonable notice to the parties orby agreement ofthe parties." TEX.

R. Crv. P. 245; see Osborn, 961 S.W.2d at411; Green, 857 S.W.2d at 819. The notice requirements

ofrule 245 are satisfied by serving the party himself, his agent, orhis attorney under the provisions

ofrule 21a ofthe Texas Rules ofCivil Procedure. See TEX. R. Crv. P.21a; Osborn, 961 S.W.2d at

411; Green, 857 S.W.2d at 819. As stated by the First District Court ofAppeals in Green:

Failure to comply with the rules ofnotice in acontested case deprives a party ofhis

constitutional right to be present at the hearing, to voice his objections in an

appropriate manner, and results ina violation offundamental due process.

Green, 857 S.W.2d at 819.

InLopez v. Lopez, 757 S.W.2d 721, 723 (Tex. 1988), theTexas Supreme Court concluded

a defendant who had no actual orconstructive notice ofatrial setting is not required to establish a

meritorious defense under Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124,

126 (1939) in order to obtain anew trial following the rendering ofapost-answer defaultjudgment.

2

In apost-answer default judgment situation, the defendant's answer places the merits ofthe plaintiffs cause ofaction at issue. See Green,

857 S.W.2d at 818. Therefore, as in Green, the instant case is "contested" even though adefault judgment was rendered.
See Lopez, 757 S.W.2d at 723, see alsoMosser, 893 S.W.2d at 12 (citingPeralta, 485 U.S. at 86).

Appellee does not dispute the fact appellants did not have actual notice ofthe September 13

setting. However, appellee argues appellants had constructive notice ofthe September 13 setting

because itresulted from the September 9setting ofwhich appellants did have notice. However, the

Green court expressly rejected this "constructive notice" argument because there was no evidence

in the record indicating appellants had notice ofthe subsequent hearing. See Green, 857 S.W.2d

at819. The instant case contains an almost identical procedural background as Green, and we are

persuaded by the holding of the First District Court of Appeals. Accordingly, we reject the

constructive notice argument provided by appellee.

In response to appellants' second point oferror, appellee contends the defaultjudgmentwas

actually rendered at the September 9setting, and the September 13 setting was not atrialsetting but

merely ahearing to prove up damages. Appellee thus argues appellants were not denied due process

because notice ofthe September 13 "hearing" was not required. We disagree. The record indicates

the case was disposed of on the merits on September 13. The default judgment was not rendered

until September 13. In addition, appellee's briefcharacterizes the September 13 setting as a"proveup which was a continuation from the September 9, 1996 request for adefault." Because appellee

merely "requested" the trial court torender adefaultjudgment inhis favor, and the request was not

disposed of by the trial court until September 13, appellee's argument lacks merit. Therefore,

appellants were entitled to notice ofthe September 13 setting as amatter ofdue process. See LBL

Oil Co., Ill S.W.2d at 390-91; Green, 857 S.W.2d at 819.

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Conclusion

Because the record establishes appellants had neither actual nor constructive notice of the

September 13,1996 setting atwhich the default judgment was rendered against them, weconclude

appellants need not satisfy the requirements of the Craddock test in order to establish their

entitlement to a new trial. See Mosser, 893 S.W.2d at 13. We conclude the trial court abused its

discretion inoverruling appellants' motion fornew trial. Therefore, wesustain appellants' second

point of error. Because of our disposition of appellants' second point of error, it is unnecessary to

address appellants' remaining points of error and appellee'sresponses. See TEX. R APP. P. 47.1.

Accordingly, we reverse the trial court's judgment and remand the cause to the trial court.

Do Not Publish

TEX. R. APP. P. 47

970122F.U05

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