STEPHEN C. MILLER, Appellant v. GATEWAY NATIONAL BANK, Appellee

Affirmed and Opinion filed October 16, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-89-00093-CV
............................
STEPHEN C. MILLER, Appellant
V.
GATEWAY NATIONAL BANK, Appellee
 
.................................................................
On Appeal from the County Court at Law No. 5
Dallas County, Texas
Trial Court Cause No. CC-88-6203-E
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O P I N I O N
Before Justices Stewart, Lagarde and Burnett
Opinion By Justice Stewart
        Stephen C. Miller appeals the denial of his motion for new trial, which was filed in an attempt to set aside a default judgment rendered against him and in favor of appellee, Gateway National Bank f/k/a First Bank (Gateway). In two points of error, Miller argues that the trial court erred in overruling his motion for new trial and in awarding attorney's fees without conducting an evidentiary hearing. We disagree and affirm the judgment of the trial court.
        Gateway filed suit against Miller to recover on a personal guaranty. It is undisputed that Miller was served with citation as to Gateway's suit. Miller failed to answer, which resulted in a default judgment in favor of Gateway for the amount of the outstanding indebtedness, plus ten percent attorney's fees pursuant to the guaranty contract. Miller filed a motion for new trial, accompanied by his affidavit. The motion and affidavit relied upon the following facts to show that Miller's failure to answer was the result of accident or mistake, rather than conscious indifference. Miller contacted an attorney concerning Gateway's lawsuit after he had been served with the citation. Miller was unaware that, due to a miscommunication between him and his secretary, the pleadings were never forwarded to the attorney and an answer was not timely filed.
        In his first point, Miller alleges that the trial court erred in overruling his motion for new trial. A motion for new trial is addressed to the trial court's discretion, and the court's ruling will not be disturbed on appeal absent a showing of abuse of discretion. Strackbein v. Prewitt, 671 S.W.2d 124, 126 (Tex. 1984). "While trial courts have some measure of discretion in the matter...it is not an unbridled discretion to decide cases as they might deem proper, without reference to any guiding rule or principle." Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (Tex. Comm'n App. 1939, opinion adopted). The rule applicable to motions for new trial which seek to set aside a default judgment entered on failure of a defendant to file an answer is as follows:
    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 a mistake or accident; provided the motion 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, 133 S.W.2d at 126.
        Under the first prong of the Craddock test, Miller must show that his failure to timely file an answer to Gateway's suit was due to mistake or accident, and not intentional or the result of conscious indifference. Miller relies on Strackbein, 671 S.W.2d 37, to support his contention that his failure to timely answer was due to mistake or accident. In Strackbein, the defendant relied on an officer of his corporation to assemble documents and to forward them to the attorney. Due to a miscommunication, the documents were never forwarded, and an answer was not timely filed. The court held that defendant's failure to answer was due to accident or mistake. Gateway replies that this case is distinguishable from Strackbein because Miller's affidavit is the only affidavit attached to his motion for new trial; the only reference to Miller's failure to answer is that mentioned above; and Miller's affidavit does not state specific facts to support his contention that his failure to answer was neither intentional nor the result of conscious indifference. In Strackbein, the defendant's motion for new trial was accompanied by affidavits from the defendant, his secretary, the vice president of his company, his attorney, and the setting clerk for the Bexar County District Clerk Coordinator which, taken together, specifically explained the mistake made by the defendant. When a party relies on an agent or representative to secure the filing of an answer, there must be a showing that the failure to file an answer was not intentional or the result of conscious indifference of either the party or his representative. Cornerstone Alternatives v. Patterson Olds, 696 S.W.2d 702 (Tex. App. -- Fort Worth 1985, no writ); Harris v. Lebow, 363 S.W.2d 184, 186 (Tex. Civ. App. -- Dallas 1962, writ ref'd n.r.e.). Miller's motion for new trial was not accompanied by an affidavit from his secretary or his attorney. Miller's own affidavit merely alleged that miscommunication led to his failure to answer. Miller has not shown that the failure to file an answer was not intentional or the result of conscious indifference of his secretary or his attorney. Miller relied on his representatives to his own peril and, therefore, took responsibility for their actions within the principal-agent relationship. Cornerstone Alternatives, 696 S.W.2d at 703.
        Miller's motion and affidavit also alleged that he had a meritorious defense to Gateway's cause of action, that a new trial would not injure Gateway, and that he would reimburse Gateway's expenses in obtaining the default judgment. We need not address these contentions in light of our holding that Miller has not shown that his failure to answer was due to accident or mistake. Miller's first point is overruled.
        In his second point, Miller contends that the trial court erred in awarding attorney's fees without conducting an evidentiary hearing. Damages may not be assessed in a default judgment proceeding without presenting evidence unless the claim is liquidated. Tex. R. Civ. P. 241 and 243. "Liquidated" as used in Rule 241 of the Texas Rules of Civil Procedure means that the amount due can be calculated with sufficient certainty solely from the instrument sued upon. Burrows v. Bowden, 564 S.W.2d 474, 475 (Tex. Civ. App. -- Corpus Christi 1978, no writ); Fears v. Mechanical & Indus. Technicians, Inc., 654 S.W.2d 524 (Tex. App. -- Tyler 1983, writ ref'd n.r.e.). The guaranty agreement provides in pertinent part: "...and Guarantors further agree to pay reasonable attorney's fees which shall not be less than ten percent (10%) of the indebtedness additional as attorney's fees should this contract be placed in the hands of an attorney for collection or should it be collected through any court."
        Miller argues that this language does not make the attorney's fees a liquidated claim, because it provides for a reasonable attorney's fee without fixing a definite or specific amount. He further contends that the language "...not less than ten percent (10%) of the indebtedness additional..." is extremely vague and not capable of interpretation without hearing evidence. Miller relies on Wallace v. Snyder Nat. Bank, 527 S.W.2d 485 (Tex. Civ. App.--Eastland 1975, writ ref'd n.r.e.) and Odom v. Pinkston, 193 S.W.2d 888 (Tex. Civ. App.--Austin 1946, writ ref'd n.r.e.), which involved suits on promissory notes that provided for reasonable attorney's fees in the event of nonpayment. Both courts of appeals reversed the trial court's award of attorney's fees because there was no record on the reasonableness of the fees awarded. We agree that a provision for reasonable attorney's fees, without more, raises a question of fact as to which the Court must hear evidence. Smith v. Texas Discount Co., 408 S.W.2d 804, 807 (Tex. Civ. App.--Austin 1966, no writ). However, we conclude that our facts are more analogous to those in Loomis v. Republic Nat. Bank of Dallas, 653 S.W.2d 75 (Tex. App. -- Dallas 1983, writ ref'd n.r.e.). In Loomis, the appellant also argued that the trial court erred in awarding attorney's fees without any evidence supporting the award. The note provided that attorney's fees of ten percent would be paid in the event that the note was placed in the hands of an attorney for collection. The court held that the trial court did not err in holding the parties to their contract. Loomis, 653 S.W.2d at 79.
        In this case, the parties contracted for a minimum of ten percent of the indebtedness owed as a reasonable attorney's fee. Since the principal balance due was certain, the minimum fee could be calculated with sufficient certainty from the instrument sued upon. Burrows, 564 S.W.2d at 475. The trial court awarded the minimum fee agreed to by the parties. Had the court awarded a fee in excess of the minimum fee specified in the agreement, a fact question of the reasonableness of the fee would have arisen and an evidentiary hearing would have become necessary. Wallace, 527 S.W.2d 485; Odom, 193 S.W.2d 888. On the other hand, because Miller contracted that the court's award was a reasonable fee, at a minimum, he was properly held to his agreement. Loomis, 653 S.W.2d at 79. Miller's second point is overruled.
        The judgment of the trial court is affirmed.
 
 
                                                  
                                                  ANNETTE STEWART
                                                  JUSTICE
 
Do Not Publish
Tex. R. App. P. 90
 
890093.U05
 
 
File Date[10-16-89]
File Name[890093]