FRED ROOTERS, d/b/aFROM A COUNTY COURT QUALITY INSURANCE AGENCY, APPELLANT, v. AMERICAN HALLMARK INSURANCE COMPANY OF TEXAS, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-88-01428-CV
FRED ROOTERS, d/b/aFROM A COUNTY COURT
QUALITY INSURANCE AGENCY,
 
        APPELLANT,
 
v.
 
AMERICAN HALLMARK INSURANCE
COMPANY OF TEXAS,
 
        APPELLEE. OF DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES STEWART, THOMAS, AND WHITTINGTON
OPINION BY JUSTICE WHITTINGTON
JUNE 23, 1989
        Fred Rooters, d/b/a Quality Insurance Agency appeals from a denial of a motion for new trial and to set aside a post-answer default judgment in favor of American Hallmark Insurance Company, entered when Rooter failed to appear for trial. For the reasons detailed below, we affirm the judgment of the trial court.
        A motion for new trial is addressed to the trial court's discretion and the court's ruling will not be disturbed on appeal in the absence of a showing of an abuse of discretion. Strackbein v. Prewitt, 671 S.W.2d 37 (Tex. 1984). The guidelines trial courts are to follow in determining whether to grant a motion for new trial are set forth in Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124 (Comm'n App. 1939, opinion adopted):
 
 
        A default judgment should be set aside and a new trial ordered in any case in which the failure of the defendant to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to mistake or an accident; provided the motion for new trial sets up a meritorious defense and is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff.
Craddock, 134 Tex. at , 133 S.W.2d at 126. The prerequisites for granting a motion to set aside a trial court's default judgment also apply to a post-answer default judgment. Grissom v. Watson, 704 S.W.2d 325, 326 (Tex. 1986).
        Rooters asserts that he satisfied all the elements of the Craddock test and, therefore, the trial court abused its discretion in denying the motion for new trial. We disagree. The record before us indicates that Rooters failed to satisfy the first prong of the Craddock test. The burden of proof is upon appellant to show that the failure to appear at trial was not negligent, intentional, or the result of conscious indifference. Ward v. Nava, 488 S.W.2d 736, 738 (Tex. 1973). The trial court determines all such disputed facts. Healy v. Wick Building Systems, Inc., 560 S.W.2d 713, 721 (Tex. Civ. App.--Dallas 1978, writ ref'd n.r.e.). Conscious indifference means failing to take some action which would seem indicated to a person of reasonable sensibilities under the same circumstances. Johnson v. Edmonds, 712 S.W.2d 651, 652 (Tex. App.--Fort Worth 1986, no writ).
        In the instant case, Rooters filed a pro se answer on May 23, 1988. Trial was scheduled for August 31, 1988. Rooters did not retain an attorney until 4:30 p.m. of the day before trial. Rooters attorney did not attend the 9:00 a.m. docket call; he first appeared in court at 9:40 a.m. after the default judgment was already entered. The attorney informed opposing counsel that he would be late, but he did not inform the court. Rooter's attorney instructed him not to appear in court, but to wait by the phone and be ready to come to court if the trial was called. When a litigant waits until the eve of trial to retain counsel, he is inviting circumstances and events leading to entry of a default judgment as occurred in this case. We hold that by waiting so long to retain counsel, Rooters demonstrated conscious indifference. See Holberg v. Short, 731 S.W.2d 584, 586 (Tex. App.--Houston [14th Dist.] 1987, no writ); Wood v. Zenith Mortgage Co., 538 S.W.2d 446, 448 (Tex. Civ. App.--Beaumont 1976, writ ref'd n.r.e.).
        Rooters has not met the first test of Craddock. Therefore, the trial court did not abuse its discretion in overruling his motion for new trial. We affirm the judgment of the trial court.
                                                          
                                                          JOHN WHITTINGTON
                                                          JUSTICE
DO NOT PUBLISH
TEX. R. APP. P. 90
88-01428.F
 
 
File Date[01-02-89]
File Name[881428F]