dissenting.
I dissent.
Conscious indifference
To my mind, Mr. Vannerson established that his failure to appear was the result of an accident or mistake, and was not the result of conscious indifference. Trial settings are rescheduled daily in Texas with this same scenario: A lawyer calls the court, the court informs the lawyer if the other party will agree to a reset, the case will be passed, the lawyer calls the other lawyer, and then calls the court again to tell the court the other lawyer agreed. The only difference in this case is that the party, not his lawyer, called the court and the other lawyer.
The majority, in considering whether there was conscious indifference, considered that Mr. Vannerson left town, not that he swore he would return for the hearing if necessary. As Mr. Vannerson said in his brief, his divorce case had been pending for over 30 months, and he had to leave town occasionally for business. Mr. Vannerson had never missed another hearing. Mr. Vannerson swore that he had return airline tickets with him and would have flown *678back to Houston in time for the hearing if he had thought his presence was required. After talking to Fibich, he believed they agreed to a reset.
When Mr. Vannerson initially called the court, the clerk of the court read to him a request by Fibich to pass the case. Appellant testified Ramirez told him he needed to contact Fibich and discuss the matter with him. Mr. Vannerson gave Ramirez his telephone number in Washington, D.C., and asked her to call him if he needed to appear. Even Judge Stansberry testified he instructed Ramirez to tell appellant the trial was scheduled to go forward unless it was passed by all the parties.
Mr. Vannerson’s actions in calling the court, the other attorney, calling the court again, leaving his telephone number with the clerk and Fibich, are inconsistent with the notion of conscious indifference. In Beard v. McKinney, 456 S.W.2d 451, 455 (Tex.Civ.App. — Houston [1st Dist.] 1970, no writ), this Court held that a lawyer’s actions in taking discovery and setting the case for trial were inconsistent with the notion of conscious indifference. So here too, we should consider that the relevant inquiry is the day before the hearing. Today’s holding in looking at whether Mr. Vannerson left town at all that week, will jeopardize the travel and business plans of all parties and lawyers involved in litigation.
Delay or injury to plaintiff
In analyzing the third prong of the Crad-dock test, which requires the appellant to show that the granting of a motion for new trial will not cause delay or otherwise work an injury to the plaintiff, the majority holds that appellant did not meet his burden.
The majority criticizes Mr. Vannerson because he merely offered to pay Mrs. Van-nerson’s expenses and said the granting of a new trial would not cause delay or work an injury upon her. I do not know what else Mr. Vannerson could have said to meet this element. In Angelo v. Champion Restaurant Equipment Co., 713 S.W.2d 96, 98 (Tex.1986), the Supreme Court said that it was not necessary for the defendant to state it was willing to reimburse the plaintiff for the expenses incurred in getting the default. The Court said that the fact the plaintiff could have moved for a default judgment for three and three-quarters years, and did not, along with the allegation that no injury or delay would be caused, was enough to meet this element of the Craddock test.
The majority uses earlier continuances to show that Mr. Vannerson’s right to be present at his own trial was waived because of his failure to prove this element. The majority considers the past conduct of Mr. Vannerson and holds there was some evidence upon which the judge could reasonably conclude that the granting of a new trial would have caused delay and would have worked injury on the appellee. I think the majority is in error.
I would sustain point of error one.