BEAUMONT – The Ninth Court of Appeals is being asked to decide whether Judge Kent Walston erred in refusing to grant two individuals a new trial – a pair of defendants who defended themselves without representation.
Not long after their attorney withdrew, Attaboy Termite and Pest Control filed a motion for summary judgment against Andrew and Elizabeth Kennedy, court records show.
Attaboy sued the Kennedys and their company, Ambassador Pest Management, in 2017, alleging Andrew (a minority Attaboy shareholder) engaged in a conspiracy to breach his fiduciary duty (embezzlement) and that Elizabeth aided and abetted him.
Court records show that on Nov. 14, 2018, Judge Walston permitted the Kennedys’ attorney to withdraw.
On Dec. 3, 2018, (less than a month later) Attaboy Termite filed a motion for final summary judgment. The Kennedys represented themselves at the hearing.
Court records show that on Jan. 7, 2019 Walston granted Attaboy’s motion, finding that the company suffered actual damages in the amount of $1.1 million.
Walston also awarded Attaboy $200,000 in exemplary damages, plus more than $25,000 in attorney’s fees.
Armed with new counsel, the Kennedys filed a motion for new trial, which Walston denied following a brief hearing, court records show.
The Kennedys appealed the ruling and the case was submitted on briefs today.
“At the time of the summary judgment hearing, the Kennedys were pro se,” states the Kennedys’ appellate brief. “The Kennedys did not understand the need for filing a response and were not given additional time to do so. The trial court had granted summary judgment by default.”
The Kennedys argue that their failure to file response was not intentional and that Walston abused his discretion.
“At the hearing on the motion for new trial while ‘armed’ with new counsel, the Kennedys again pointed out this circumstance and their lack of understanding of the necessity of filing a response,” the brief states. “It was not intentional but inadvertent because of this misunderstanding.
“Yet, the trial court denied the Kennedys motion.”
The Kennedys argue that Walston should have allowed them leave to file a response.
“The trial court should have granted the Kennedys a new trial after the Kennedys showed the failure to file a response was inadvertent,” the brief states. “However, the trial court did not. Therefore, this Court should set aside the summary judgment and remand this cause for a rehearing.”
In its reply brief, Attaboy contends the Kennedys made no attempt to hire a new attorney and that its motion was granted based on “competent” evidence.
Attaboy is represented by Bruce Partain, attorney for the Beaumont law firm of Wells, Peyton, Greenberg & Hunt.
Beaumont attorney Bruce Cobb represents the Kennedys.
Walston presides over the 58th District Court.
Appeals case No. 09-19-00109-CV