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 of the September 13, 1996 trial setting at which the defaultjudgment 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 9 setting; however, appellants and their counsel failed toappear in the trial court for the 

### hearing. Appellants' trial counsel indicated in an affidavitthatthe failure to appear at the September 9 hearing was basedupon his reliance on rule 1.18 of the Dallas CivilDistrictCourt Local Rules. 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 atany 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. Thejudge'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 defaultjudgment in favor ofappellee and against appellants
on the same day. Each appellant individually filed amotion to set aside the defaultjudgmentwhich 

### 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 of fact 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 pointof error, appellants contendthey are entitledto anew trial becausethey did not have notice ofthe September 13, 1996 trial setting at which the defaultjudgment was
entered.
Standard ofReview We review the trial court's ruling on a motion for new trial under an abuse of discretion 

### standard. SeeDirectorv. 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 ofnotice, 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 orconstructive notice of thetrial setting." 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 courtset a hearing on the motion to vacate the modifieddefaultjudgmentandthe motionfornewtrial. However, the recorddoes notcontain any evidence regarding this hearing orthe trial court's ruling on the motions. Appellee's brief statesthe motionto vacate the modified defaultjudgment 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 noticeofproceedings." Green, 857 S.W.2d at 819. Rule245 ofthe TexasRulesof CivilProcedureallowsthetrial courtto resetcontested cases2 

### for trial "to alaterdate on any reasonable notice to the parties orby agreement of the parties." TEX. 

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


### adefendant 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 defaultjudgment situation, the defendant's answerplaces the merits of the plaintiffs cause of action at issue. See Green, 857 S.W.2d at 818. Therefore, as in Green, the instant case is "contested" even though adefaultjudgment 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 of the September 13 

### setting. However, appellee argues appellants had constructive notice ofthe September 13 setting because itresulted from the September 9setting of which 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 ofthe First District Court of Appeals. Accordingly, we reject the constructive notice argument provided by appellee. In response to appellants' second pointoferror, appellee contends the defaultjudgmentwas 

### actually rendered atthe September 9setting, and the September 13 setting was not atrial setting 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 ofon the merits on September 13. The defaultjudgment was not rendered until September 13. In addition, appellee's briefcharacterizes the September 13 setting as a"prove

### up which was acontinuation 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 ofby 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.

-5-Conclusion Because the record establishes appellants had neither actual nor constructive notice ofthe September 13,1996 setting atwhich the defaultjudgment 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 oferror. Because of our disposition ofappellants' second point oferror, it is unnecessary to address appellants' remaining points of error and appellee's responses. 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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