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 a post answer default judgment in favor ofJason Glatzer. Intheir second point of error, 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 of the September 9 setting; however, appellants and their counsel failed toappear in the trial court for the
hearing. Appellants' trial counsel indicated in an affidavit that the failure to appear at the September 9 hearing was based upon his reliance on rule 1.18 of the Dallas Civil DistrictCourt 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 at a 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 of appellee and against appellants on the same day. Each appellant individually filed amotion to set aside the default judgment which
included an affidavit from trial counsel indicating he did not have notice of the 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 default judgment.
POST-ANSWER DEFAULT JUDGMENT
In their 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.
Standard of Review
We review the trial court's ruling on a motion for new trial 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 of lack of notice, thedefendant must show his failure to attend trial was not intentional or
the result ofhis conscious indifference, but was due to accident or mistake." 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 trial 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 court set ahearing on the motion to vacate the modified default judgment and the motion for new trial. However, the record does not contain any evidence regarding this hearing orthe trial court's ruling on the motions. Appellee's briefstates the motion to vacate the modified default judgment and the motion for new trial were denied bythe trial court.
-3- 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 due process under theFourteenth Amendment to thefederal constitution. See
LBL Oil Co. 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 and reasonable noticeof proceedings." Green, 857 S.W.2d at 819.
Rule 245ofthe TexasRulesof CivilProcedureallowsthe trial 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 of rule 21a ofthe Texas Rules of Civil 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 a contested case deprives a party ofhis constitutional right to be present at the hearing, to voice his objections in an appropriate manner, and results in a violation of fundamental due process. Green, 857 S.W.2d at 819.
InLopez v. Lopez, 757 S.W.2d 721, 723 (Tex. 1988), the Texas 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.
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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 a post answer default judgment in favor ofJason Glatzer. Intheir second point of error, 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 of the September 9 setting; however, appellants and their counsel failed toappear in the trial court for the
hearing. Appellants' trial counsel indicated in an affidavit that the failure to appear at the September 9 hearing was based upon his reliance on rule 1.18 of the Dallas Civil DistrictCourt 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 at a 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 of appellee and against appellants on the same day. Each appellant individually filed amotion to set aside the default judgment which
included an affidavit from trial counsel indicating he did not have notice of the 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 default judgment.
POST-ANSWER DEFAULT JUDGMENT
In their 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.
Standard of Review
We review the trial court's ruling on a motion for new trial 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 of lack of notice, thedefendant must show his failure to attend trial was not intentional or
the result ofhis conscious indifference, but was due to accident or mistake." 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 trial 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 court set ahearing on the motion to vacate the modified default judgment and the motion for new trial. However, the record does not contain any evidence regarding this hearing orthe trial court's ruling on the motions. Appellee's briefstates the motion to vacate the modified default judgment and the motion for new trial were denied bythe trial court.
-3- 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 due process under theFourteenth Amendment to thefederal constitution. See
LBL Oil Co. 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 and reasonable noticeof proceedings." Green, 857 S.W.2d at 819.
Rule 245ofthe TexasRulesof CivilProcedureallowsthe trial 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 of rule 21a ofthe Texas Rules of Civil 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 a contested case deprives a party ofhis constitutional right to be present at the hearing, to voice his objections in an appropriate manner, and results in a violation of fundamental due process. Green, 857 S.W.2d at 819.
InLopez v. Lopez, 757 S.W.2d 721, 723 (Tex. 1988), the Texas 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 at 819. 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 default judgment was actually rendered at the 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 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"prove- up which was a continuation from the September 9, 1996 request for a default." Because appellee merely "requested" the trial court torender a defaultjudgment 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 of the September 13 setting as a matter of due 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 of the
September 13,1996 setting at which 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'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
-6-