BEAUMONT – The Ninth Court of Appeals has reversed Judge Kent Walston’s award of $1.34 million to Aattaboy Termite and Pest Control – a judgment Walston handed down when the defendants in the case were without representation.
In 2017, Aattaboy sued Andrew and Elizabeth Kennedy, claiming they embezzled money from the company.
The issues in the case stem from a motion for summary judgment Aattaboy filed against the Kennedys not long after their attorney withdrew.
Walston permitted the Kennedys’ attorney to withdraw on Nov. 14, 2018, court records show.
On Dec. 3, 2018, (less than a month later) Aattaboy filed its motion for final summary judgment. The Kennedys represented themselves at the hearing.
A month later, on Jan. 7, 2019, Walston granted Aattaboy’s motion, finding that the company suffered actual damages in the amount of $1.1 million.
Walston also awarded Aattaboy $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, arguing that they did not understand the need for filing a response and were not given additional time to do so. They assert the trial court had granted summary judgment by default.
On appeal, the Kennedys argued that their failure to file a 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.”
In its reply brief, Aattaboy argued that the Kennedys made no attempt to hire a new attorney and that its motion was granted based on “competent” evidence.
However, on April 22 the Ninth Court found that Aattaboy “failed to conclusively prove it was entitled to damages in the various sums” Walston awarded.
Justices reversed Walston and remanded the case, finding the Kennedys are entitled to a new trial on damages, as well as a new trial on liability issues.
Beaumont attorney Bruce Cobb represents the Kennedys.
Aattaboy is represented by Bruce Partain, attorney for the Beaumont law firm of Wells, Peyton, Greenberg & Hunt.
Walston presides over the 58th District Court in Jefferson County.
Appeals case No. 09-19-00109-CV