 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.




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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 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.




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                                            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




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