Court of Appeals of Texas, Houston (1st Dist.).

Suzanne L. VIGNOS, Appellant,

v.

Trevor A. DAWKINS, Appellee.

No. 01-98-01009-CV.

|

March 16, 2000.

Panel consists of Chief Justice SCHNEIDER, Justice WILSON, and Justice SMITH.

OPINION

SMITH.¹

*1 This is an appeal of a post-answer default judgment granted to appellee, Trevor A. Dawkins, against his former wife, appellant, Suzanne L. Vignos. In three points of error, we are asked to reverse because the trial court abused its discretion when it denied appellant’s motion for new trial. Appellee has not filed a brief with this Court.

Background

Trevor Dawkins sued his former wife, Suzanne Dawkins Vignos, to recover a $4000 loan made in October 1996 and a $13,000 loan made to Vignos in January 1997. Counsel for Vignos answered the lawsuit with a verified denial and asserted several affirmative defenses. Counsel then withdrew, and Vignos proceeded pro se. Several months later, when Vignos failed to appear for trial, the trial court awarded Dawkins a default judgment for $17,000, plus interest. Vignos’s motion for new trial, supported by her affidavit, was overruled.

In her first two points of error, Vignos asserts the trial court should not have granted a post-answer default judgment against her and denied her motion for a new trial, because she did not receive reasonable or proper notice of the trial setting.

Standard of Review

A post-answer default is one rendered when a defendant has filed an answer, but then fails to appear at trial. Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex.1979). In reviewing a motion for new trial after a post-answer default judgment, we apply a three-part test to determine whether the trial court should have granted a new trial, specifically, here: (1) was Vignos’ failure to appear for trial intentional, or the result of conscious indifference on her part, or was it due to a mistake or an accident; (2) did Vignos’s motion for new trial set up a meritorious defense; and (3) was Vignos’s motion for new trial filed at a time when its granting would not result in a delay or otherwise injure Dawkins. Craddock v. Sunshine Bus Lines, 133 S.W.2d 124, 126 (1939); Cliff v. Huggins, 724 S.W.2d 778, 779 (Tex.1987) (the three Craddock requirements apply to post-answer default judgments).

We review the trial court’s ruling on a motion for new trial for an abuse of discretion. Director, State Employees Workers’ Compensation Div. v. Evans, 889 S.W.2d 266, 268 (Tex.1994). A trial court abuses its discretion if it denies a motion for new trial when the defendant satisfies the Craddock standard. Old Republic Ins. Co. v. Scott, 873 S.W.2d 381, 382 (Tex.1994).

Relevant Chronology

The trial court’s scheduling order scheduled a pre-trial conference for March 20, 1998, and set the case for trial on March 30, with a notation that, if the case was not assigned by the second Friday after that date [March 30], the case would be reset. An information sheet attached to the scheduling order states that the pretrial conference and trial dates can be changed only by motion filed and heard by the court. Vignos’s affidavit in support of her motion for new trial recites her attendance at the pretrial conference and confirms an entry on the pre-trial conference form informing the trial coordinator that, with the exception of May 4th, Dawkins’s attorney was unavailable for trial in April and May.

*2 The May 13, 1998 final judgment recites that Vignos did not appear for trial on March 30, pursuant to the previously issued scheduling order; however, no entry was made on the trial court’s docket sheet for March 30. The trial court’s findings of fact and conclusions of law, issued after the hearing on the motion for new trial, recite that Vignos received notice of the March 30 trial setting, but she did not appear. Both the final judgment and the findings of fact and conclusions of law state that the trial court had reset the case for trial on May 4, 1998, at 9:30 a.m. Both documents recite that the court coordinator left Vignos a telephone message on Friday, May 1st, informing her of the trial setting for Monday, May 4, 1998. Both documents state also that the court coordinator had received a message on the court’s answering machine the morning of May 4, in which Vignos acknowledged awareness of the trial setting, but indicated that she had something else to do and would not be attending the scheduled trial. When Vignos did not appear on May 4 at 9:30 a.m., the trial court heard evidence, concluded that Vignos owed Dawkins $17,000, and awarded him a judgment for that amount.

Following a hearing on Vignos’s motion for new trial, the trial court found that Vignos “did not demonstrate that her failure to appear at the final hearing was not intentional or the result of conscious indifference, but was the result of her mistake or accident.” The trial court further found that Vignos did not demonstrate that granting a new trial would not result in delay or prejudice to Dawkins.

Craddock Review

To determine whether the trial court abused its discretion in refusing to set aside the default judgment, we must determine whether Vignos’s failure to appear for trial was intentional or was the result of conscious indifference. “Conscious indifference” means failing to take some action that would seem indicated to a person of reasonable sensibilities under similar circumstances. Prince v. Prince, 912 S.W.2d 367, 370 (Tex.App.-Houston [14th Dist.] 1995, no writ); see also Guardsman Life Ins. Co. v. Andrade, 745 S.W.2d 404, 405 (Tex.App.-Houston [1st Dist.] 1987, writ denied) (reasoning that, for negligence to rise to level of conscious indifference, evidence must show “appellant was clearly aware of the situation and acted contrary to what such awareness dictated.”). In determining whether the failure to appear was intentional or the result of conscious indifference, we look to Vignos’s knowledge and acts.

In her affidavit in support of a new trial, Vignos does not deny that she received notice of the trial setting. However, the message Vignos received was about a trial setting for cause number “95-53051,” another suit pertaining to custody, that had already been concluded. As a result of the telephone call, Vignos left telephone and fax messages for the trial coordinator, and Dawkins’s attorney, to try and get information about the message. Vignos states that, had she known that her trial was actually to begin on May 4th, she would have been in court ready to begin.

*3 At the new trial hearing, Vignos’s counsel asserted that because Judge Dempster already had trials set, Vignos was told that the trial coordinator would have to let the parties know about a new trial setting. Vignos believed that a specific trial date was not set at the March 20th pretrial conference and that she was assured that she would be given plenty of notice when a date for trial was set.

The court coordinator’s testimony in the record from the default judgment hearing shows that she left messages for Vignos at two different telephone numbers on May 1 (a Friday) to inform her of the trial setting. The court coordinator had then received a message on her answering machine from Vignos at 6:30 a.m. the day of trial, May 4th, (the following Monday) to say that Vignos could not be there and that she was under the impression that the case had been continued.

The record does not include a response from Dawkins to the motion for new trial, nor objections to Vignos’s affidavit. Whether Vignos’s failure to appear at trial was intentional or the result of conscious indifference is a fact question. Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex.1984).

When the factual allegations in movant’s affidavit are not controverted, the question of conscious indifference must be determined in the same manner as a claim of meritorious defense. Id. If the factual assertions in the defendant’s affidavit are not controverted by the plaintiff, the defendant satisfies his burden if his affidavit sets forth facts that, if true, would negate intentional or consciously indifferent conduct. Estate of Pollack v. McMurrey, 858 S.W.2d 388, 397 (Tex.1993); Ivy v. Carrell, 407 S.W.2d 212, 214 (Tex.1966).

To set aside a default judgment, Vignos need only show a slight excuse for failing to appear. State v. Sledge, 982 S.W.2d 911, 914 (Tex.App.-Houston [14th Dist.] 1998, no pet.). A “good” excuse is not required under Craddock. Id. at 916. A failure to appear is not intentional or due to conscious indifference merely because it was deliberate; it must also be without adequate justification. Smith v. Babcock & Wilcox Constr. Co., 913 S.W.2d 467, 468 (Tex.1995). Proof of such justification-accident, mistake, or other reasonable explanation-negates the intent or conscious indifference for which reinstatement can be denied. Bank One, Texas, N.A. v. Moody, 830 S.W.2d 81, 84 (Tex.1992). Also, conscious indifference means more than mere negligence. Ivy, 407 S.W.2d at 213.

We find that Vignos’s affidavit satisfied the Craddock requirement that her failure to appear was due to unreasonable notice, and notice of the wrong cause, and was not due to conscious indifference. Even though it was deliberate, Vignos offered adequate justification for her failure to appear. We find that she has alleged a meritorious defense and the granting of Vignos’s motion for new trial would not have resulted in delay or injury to Dawkins. Vignos has met the Craddock guidelines. It was an abuse of discretion for the trial court to deny the defendant a new trial. See Blake v. Blake, 725 S.W.2d 797, 800 (Tex.App.-Houston [1st Dist.] 1987, no writ).

*4 We sustain point of error one. Because of our disposition of point of error one, we need not reach the remaining points of error.

We reverse the judgment and remand the case to the trial court.

	Footnotes
1		The Honorable Jackson B. Smith, Jr., retired Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.