DAVID M. LIDE. JR., Appellant v. FARALONCO, N.V., INC. Appellee

Affirmed and Opinion filed November 30, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-89-00035-CV
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DAVID M. LIDE. JR., Appellant
V.
FARALONCO, N.V., INC. Appellee
 
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On Appeal from the County Criminal Court No. 5
Dallas County, Texas
Trial Court Cause No. CC88-5043-E
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O P I N I O N
Before Justices Howell, Thomas, and Ovard
Opinion By Justice Howell
        Appellant David M. Lide, Jr. appeals a default judgment in favor of appellee Faralonco, N.V. (Faralonco) for rental due and owing for the use of commercial office space. The only contention on appeal is that the trial court abused its discretion in overruling appellant's motion for new trial. We affirm the trial court's judgment.
        On February 4, 1987, Faralonco entered a lease agreement with Springfield Corporation for commercial office space in One Preston Centre. Lide signed the lease as guarantor of the rental payment. In paragraph two of the guarantee, Lide expressly waived notice of default by the tenant under the lease. On April 20, 1988, Faralonco brought suit against Lide for default under the lease agreement. Lide was subsequently served and answered by general denial on June 14, 1988. The case was set for trial on July 27, 1988, but at the request of Lide, the case was reset for trial. Lide's counsel notified Faralonco's counsel that the case had been reset for September 15, 1988. The parties entered into settlement negotiations which continued until the time of trial. The parties reached no agreement as of the September 15, 1988 trial setting. On September 15, 1988, at trial Lide although represented by counsel was not present. Lide's counsel orally moved for a continuance. The trial court overruled this motion. After hearing evidence and cross-examination the trial court entered judgment on October 5, 1988 in favor of Faralonco for $11,073.82, plus attorney fees. Lide filed a motion for new trial on November 4, 1988. The trial court denied the motion January 3, 1989.
        Lide contends that the trial court abused its discretion in overruling his motion for new trial because the motion was timely filed and satisfied the necessary factual matters required to entitle him to the granting of such motion. "A motion for new trial to set aside a default judgment is addressed to the sound discretion of the trial court and will only be overturned upon a showing of an abuse of discretion." Johnson v. Edmonds, 712 S.W.2d 651, 652 (Tex. App.--Fort Worth 1986, no writ). Rule 320 of the Texas Rules of Civil Procedure provides, in pertinent part, that "[n]ew trials may be granted and judgment set aside for good cause, on motion. . . ." (emphasis added). Courts have widely construed the "good cause" language to require proof of three elements before a new trial will be granted after default judgment: (1) that defendant's failure to answer was the result of an accident or mistake, rather than intentional or the result of conscious indifference; (2) that defendant has alleged a meritorious defense; and (3) that a new trial will not cause delay or injury to the plaintiff. E.g., Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex. 1984); Ivy v. Carrell, 407 S.W.2d 212, 213 (Tex. 1966); Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124, 126 (1939). Conscious indifference means the failure to take some action which would seem indicated to a person of reasonable sensibilities under the same or similar circumstances. Sunrizon Homes, Inc. v. Fuller, 747 S.W.2d 530, 532 (Tex. App.--San Antonio 1988, writ denied); see Johnson, 712 S.W.2d at 652. To determine whether there was intentional disregard or conscious indifference, the trial court must look to the knowledge and acts of the party motioning for new trial. See Sunrizon, 747 S.W.2d at 532.
        The record reflects that Lide was aware at all times when the trial was set. Furthermore, no settlement agreement was reached before trial. Despite Lide's absence from trial, Lide's counsel was present. Lide asserts that because the parties were in settlement negotiations his absence was not intentional or conscious indifferent. Texas Courts have recognized that there is no conscious indifference where extended settlement negotiations had taken place. See General Portland, Inc. v. Collins, 549 S.W.2d 757, 759 (Tex. Civ. App.--Fort Worth 1977, writ ref'd n.r.e.). In General Portland, Inc. there was evidence in the record that extensive negotiations had taken place. However, in the instant case there are only contentions that negotiations took place. The record does not reveal any evidence of extensive negotiations. We conclude that a person with reasonable sensibilities and knowledge would have been present at the trial. We hold that Lide's failure to attend the trial was the result of conscious indifference. We, therefore, conclude that the trial court did not abuse its discretion by overruling Lide's motion for new trial. We overrule Lide's point of error. Accordingly, we affirm the trial court's judgment.
 
 
 
                                                          
                                                          CHARLES BEN HOWELL
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 90
890035F.U05
 
 
File Date[11-30-89]
File Name[890035F]