Randolph Jack Garrett v. Barnett Cycles, LLC and Jerrold Barnett Jr.

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-23-00017-CV
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RANDOLPH JACK GARRETT, Appellant

V.

BARNETT CYCLES, LLC AND JERROLD BARNETT JR., Appellees

________________________________________________________________________

On Appeal from the 457th District Court
Montgomery County, Texas
Trial Cause No. 21-04-06018-CV
________________________________________________________________________

MEMORANDUM OPINION

Randolph Jack Garrett appeals from the trial court’s dismissal of his claims

and entry of a default judgment in favor of Barnett Cycles, LLC and Jerrold Barnett

Jr. 1 In two issues on appeal, Garrett argues the trial court abused its discretion when

it denied his motion for new trial and his alternative motion to reinstate. Because the

1For the purposes of this appeal and the issues presented, we will refer to

Appellees collectively as Barnett.
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trial court may have reasonably concluded Garrett did not establish adequate

justification for his failure to appear for trial, we affirm.

Background

Garrett worked as a General Manager at Barnett Cycles. After Barnett Cycles

fired Garrett in April 2021, Garrett filed suit seeking damages and attorney fees from

Barnett for alleged conversion and violations of the Texas Theft Liability Act. Both

defendants answered and Barnett Cycles counter-claimed seeking damages and

attorney fees from Garrett for alleged conversion, breach of contract, fraud and

breach of fiduciary duty. In January 2022, the trial court signed a Docket Control

Order setting the case on the court’s two-week rolling docket on October 3, 2022. In

February 2022, Garrett’s trial counsel withdrew with Garrett’s and the trial court’s

approval.

On September 22, 2022, Garrett, acting pro se, filed a Motion for Continuance

indicating his case was set for trial on October 10, 2022, and asserting he needed

more time to hire an attorney. The next day, Garrett filed a Motion for Use of

Emergency Procedures, requesting to appear remotely because he was “working out

of State…and unable to get time off to attend the hearing in person.” Barnett filed

responses to both motions asserting that Garrett had over seven months to secure

counsel and “has offered no excuse and no reason why he has waited until the eve

of trial to do so” and that Garrett’s reasons for seeking to appear remotely did not
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justify emergency procedures which were intended to apply “in the context of the

COVID-19 State of Disaster.”

On September 23, 2022, the trial court’s administrator sent Garrett an email

notifying him that his motions were set on the submission docket but that if he did

not receive a ruling before October 10, 2022, he would need to appear in court on

that date “to discuss continuance with the judge.”

On September 29, 2022, Hurricane Ian struck Florida. According to Garrett,

the hurricane affected his ability to appear for trial, because he works in an

automobile repair shop, and “[w]e had work out the yin-yang because of all the

flooding. So they -- people had -- needed their cars fixed… there was nobody taking

time off. Everybody was working extra hours.” On Friday, October 7, 2022, Garrett

emailed the court administrator:

I am just following up to see if Judge Santini ruled on the motion for
continuance? I am in Florida dealing with the aftermath of the hurricane
and it is absolutely not possible for me to make it to appear before the
court on Monday, so I’m a little nervous about what to do. If there is
anyway someone could let me know the status on the motion it sure
would mean the world to us right now.

The court administrator answered that the trial court had denied Garrett’s

motions for continuance and remote attendance and that the parties were required to

appear for a bench trial at 9:00 a.m. on October 10, 2022. Garrett responded:

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I apologize but I will not be able to attend the hearing on Monday and,
as indicated before, am unrepresented at this time. I simply cannot leave
my wife and daughters dealing with the aftermath of the hurricane
alone. I truly apologize for any inconvenience this may cause.

The case proceeded to trial on October 10, 2022. When the case was called,

Garrett did not appear, and the trial court had the bailiff call for Garrett, with no

response. The trial court then dismissed Garrett’s claims and heard evidence on the

counterclaims. At the conclusion of the trial, the court awarded Barnett $210,000 in

damages plus approximately $30,000 in attorney’s fees and ordered Garrett to

deliver to Barnett certain property in Garrett’s possession. 2

On November 10, 2022, Garrett filed a Motion for New Trial or Alternatively,

Motion to Reinstate, asserting his failure to appear was not intentional or the result

of conscious indifference because, “at all times [he] was attempting to both procure

counsel on his behalf as well attempting to find means to take leave from work to

attend the trial date set in person outside his domicile state of Florida.” The motion

asserts Garrett has a meritorious defense because he “never misappropriated nor

embezzled funds from Defendants business” and records would show he had used

his own funds to purchase tools and equipment. Lastly, the motion asserts no undue

2Although the record does not contain a counterclaim on behalf of Jerrold

Barnett, Jr., Garrett did not object to his inclusion in the judgment’s award against
Garrett, nor does Garrett make any such complaint on appeal.
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delay or prejudice would result from granting a new trial because no witnesses or

evidence had disappeared. After a hearing during which the trial court heard

testimony from Garrett, the trial court denied Garrett’s Motion for New trial or

Alternatively, Motion to Reinstate. Garrett timely filed this appeal.

Analysis

In his first issue, Garrett argues that the trial court abused its discretion when

it denied his motion for new trial. In his second issue, Garrett argues the trial court

abused its discretion in denying his motion to reinstate. We address these issues

together.

In order to prevail on a motion for new trial to set aside a default judgment

resulting from a party’s failure to attend trial after having made an appearance in the

case, the movant must show his failure to appear was not intentional or the result of

conscious indifference, the motion must set up a meritorious defense, and granting

the motion must not cause undue delay or injury to the non-moving party. See

Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124 (Tex. 1939); B. Gregg Price,

P.C. v. Series 1 - Virage Master LP, 661 S.W.3d 419, 424 (Tex. 2023). The standard

for reinstating a claim dismissed for want of prosecution “is essentially the same as

that for setting aside a default judgment” except that the moving party is required to

establish only the first Craddock element. See Jackson v. Thurahan, Inc., No. 14-

02-00308-CV, 2003 Tex. App. LEXIS 2707, at *7 (Tex. App.—Houston [14th Dist.]
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Mar. 27, 2003, no pet.) (mem. op.) (citing Smith v. Babcock & Wilcox Constr. Co.,

913 S.W.2d 467, 468 (Tex. 1995)). “When a case is dismissed for want of

prosecution, ‘[t]he court shall reinstate the case upon finding after a hearing that the

failure of the party or his attorney [to appear] was not intentional or the result of

conscious indifference but was due to an accident or mistake or that the failure has

been otherwise reasonably explained.’” DanielDean.com, LLC v. Lapole, No. 09-

22-00323-CV, 2024 Tex. App. LEXIS 3403, at *1 (Tex. App.—Beaumont May 16,

2024, no pet.) (mem. op.) (citing Tex. R. Civ. P. 165a(3)).

Regarding Craddock’s first element, the critical question is: “Why did the

moving party not appear for trial?” See Fid. & Guar. Ins. Co. v. Drewery Constr.

Co., 186 S.W.3d 571, 574 (Tex. 2006). “[T]he parties may introduce affidavits,

depositions, testimony, and exhibits to explain what happened.” Id. The moving

party has the burden to negate intent and conscious indifference by establishing

“some excuse for the failure to appear at trial, which need not necessarily be a good

excuse.” Varady v. Gyorfi, No. 09-15-00237-CV, 2016 Tex. App. LEXIS 3877, at

*19-20 (Tex. App.—Beaumont Apr. 14, 2016, no pet.) (mem. op.).

A trial court’s decision on a motion for new trial may be reversed only when

the record demonstrates an abuse of discretion. Dolgencorp of Tex. v. Lerma, 288

S.W.3d 922, 926 (Tex. 2009). A trial court abuses its discretion when it acts “without

reference to any guiding rules and principles.” Downer v. Aquamarine Operators,
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Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). The “test is whether the act was arbitrary

or unreasonable.” Id. Denying a motion for new trial that establishes all three

Craddock elements is an abuse of discretion. Dolgencorp, 288 S.W.3d at 926. As

factfinder on a motion for new trial, the trial court is the sole judge of the credibility

of the witnesses and the weight to give their testimony. Sullivan v. Elliott, No. 09-

22-00368-CV, 2023 Tex. App. LEXIS 7212, at *4 (Tex. App.—Beaumont Sep. 14,

2023, no pet.) (mem. op.). “In reviewing the judgment of the trial court where there

are no findings of fact and conclusions of law requested or filed, the judgment must

be upheld on any legal theory that finds support in the evidence.” Strackbein v.

Prewitt, 671 S.W.2d 37, 38 (Tex. 1984).

Garrett asserted in his post-judgment motions and at the hearing that his

failure to appear was not intentional or the result of conscious indifference because

he would have lost his job and his family’s source of income had he appeared.

Garrett testified that after he was fired by Barnett the only place he could secure

employment was in Florida. According to Garrett, when Hurricane Ian hit Florida,

“people…needed their cars fixed[,]” and his employer was not allowing anyone to

take time off. He denied that he was “consciously indifferent towards the procedural

deadlines of the trial court[,]” stating “I tried to do what I could to be there, have

somebody here, be here, or get it delayed so that I could be here.” He testified that

in the weeks leading up to the trial, he thought he would be allowed to take off from
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work, but when the hurricane hit Florida, his employer would not let anyone take

leave, and he would have been fired had he left. Garrett described what he believed

would happen if he lost his job:

I would have been -- I would have been homeless because I live
paycheck to paycheck right now. My daughters, I’m not only paying
for where I live but my wife has left me and we’re now divorced, so I
wouldn’t have been able to support my daughters or pay her child
support or alimony, so I’d have been in trouble legally. They wouldn’t
have been able to pay rent because I’m the one that’s – I’m paying their
rent through the child support and alimony.

I mean, we would have lost cars. I can’t -- we just went through that
here. I can’t – I can’t go through being out of work again for another
year.

He testified he took every reasonable step to appear that day, without

“destroying his family.” When asked whether he understood the consequences of

failing to appear for trial, Garrett testified:

I thought I did. I mean, I -- so, look, I know -- I know being stupid about
this stuff isn’t, like, okay, but we were set for trial for me on my thing.
Right? Me suing the Barnetts for them firing me and stuff and them not
following the -- the injunction or restraining order or whatever that you
issued before that.

I had no idea that on the back end of that was going to be me getting
hammered with a 200 or whatever thousand-dollar judgment because I
couldn’t get off work. I mean, I figured worst case, I’d lose my end of
it, and, yeah, I’d be out a whole lot of tools and parts and it’d suck, but
I had no idea I was going to end up underwater on it.

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Based on Garrett’s testimony, the trial court may have reasonably concluded

Garrett made a conscious decision not to appear for trial. A party who deliberately

fails to appear for trial may still prevail on a motion for new trial or reinstatement

by establishing adequate justification for failing to appear. Smith, 913 S.W.2d at 468.

“Proof of such justification -- accident, mistake or other reasonable explanation --

negates the intent or conscious indifference for which reinstatement can be denied.”

Id. Garrett essentially argues his failure to appear was justified by his inability to

find an attorney, family responsibilities and the requirements of his job in the

aftermath of the hurricane, and anticipated financial distress should he lose his job

for attending trial.

The trial court correctly noted at the beginning of the motion for new trial

hearing that Garrett’s attorney had withdrawn in February 2022, and although

Garrett testified he tried to hire an attorney before the October 2022 trial date, in the

absence of admissible testimony describing the extent of any such efforts, the trial

court may have reasonably concluded they were less than diligent. At the conclusion

of the hearing, the trial court indicated he had previously denied Garrett’s motion

for continuance, which was based solely on Garrett’s lack of legal representation,

because, “I looked at when you consented to having your lawyer withdraw, that was

seven months. So I didn’t find that adequate, an adequate reason. I thought it was

more of a delay versus a valid reason.” Based on the record, we cannot say the trial
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court abused its discretion if it reached the same conclusion with respect to Garrett’s

assertion that his lack of legal representation justified his decision not to appear for

trial.

Garrett argues on appeal that he was “unable to leave his children unattended

in light of Hurricane Ian’s recent landfall in Florida.” But it is unclear from the

record that his children would have been “unattended” had he appeared for trial.

Although Garrett testified, “I couldn’t leave my family,” he also testified his wife

left him, they were divorced, and he was paying for two separate residences, one for

himself and one for his ex-wife and children through alimony and child support. The

trial court may have reasonably concluded Garrett failed to carry his burden to

establish that his family responsibilities were an adequate justification for his failure

to appear at trial.

The court may have also reasonably concluded Garrett’s responsibilities at

work, potential job loss, and any resulting financial distress were not adequate

justifications. At the conclusion of the hearing, the trial judge indicated Garrett’s

motion to attend trial remotely had been denied because, “my exact thought process

was, ‘Well, you’re the plaintiff. You filed the case. It’s either more important than

your work or it’s not.’” Garrett does not cite any authority, and we are aware of none,

indicating a self-represented litigant’s responsibilities at work, fear of being fired, or

anticipated financial difficulties are reasonable explanations for deciding not to
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attend trial. “In deciding whether a defendant has acted with conscious indifference,

courts are to make some allowances for a pro se litigant’s misunderstanding of the

law.” Ashworth v. Brzoska, 274 S.W.3d 324, 333 (Tex. App.—Houston [14th Dist.]

2008, no pet.) (citing Wheeler v. Green, 157 S.W.3d 439, 442 & n.1 (Tex. 2005)).

Nevertheless, a self-represented litigant “is still required to comply with the law and

rules of procedure.” Giddens v. Brooks, 92 S.W.3d 878, 880-81 (Tex. App.—

Beaumont 2002, pet. denied). “There cannot be two sets of procedural rules, one for

litigants with counsel and the other for litigants representing themselves. Litigants

who represent themselves must comply with the applicable procedural rules, or else

they would be given an unfair advantage over litigants represented by counsel.”

Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978). Given the

amount of time Garrett was aware of the trial setting (over eight months) and the

amount of time he was without counsel (nearly eight months), we cannot say the trial

court abused its discretion in concluding Garrett’s work-related excuses were

inadequate justifications for his decision not to attend trial.

Conclusion

Because the trial court could have reasonably concluded that Garrett failed to

establish adequate justification for a conscious decision not to appear for trial, we

conclude the trial court did not abuse its discretion when it denied Garrett’s Motion

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for New Trial or Alternatively, Motion to Reinstate. We overrule both of Garrett’s

issues and affirm the trial court’s judgment.

AFFIRMED.

KENT CHAMBERS
Justice

Submitted on December 2, 2024
Opinion Delivered January 30, 2025

Before Johnson, Wright and Chambers, JJ.

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