Nathan Cogsdil v. Jimmy Fincher Body Shop, LLC

• Court: Court of Appeals of Texas
• Decided: November 8, 2018
• Docket: 07-17-00054-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-17-00054-CV

NATHAN COGSDIL, APPELLANT

V.

JIMMY FINCHER BODY SHOP, LLC, APPELLEE

On Appeal from the County Court at Law No. 1 Potter County, Texas Trial Court No. 102609-00-1, Honorable W. F. (Corky) Roberts, Presiding

November 8, 2018

MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

In this appeal arising from post-judgment collection proceedings in Potter County

Court at Law Number One, appellant Nathan Cogsdil presents five issues pertaining to

the trial court’s disposition of a motion to compel and for the sanction of attorney’s fees

brought by appellee Jimmy Fincher Body Shop, LLC (Fincher).1 We will affirm the order

of the trial court.

1By order of February 21, 2017, we overruled Fincher’s motion to dismiss and recognized our jurisdiction over the appeal of the trial court’s sanction order. See Cogsdil Background

Because the facts are well known to the parties, and the law we apply is well

settled, we will not recite the facts here except as necessary to advise the parties of the

basic reasons for our disposition of the issues presented. TEX. R. APP. P. 47.4.

Fincher sued Cogsdil, alleging Cogsdil failed to pay Fincher for repairs made to

Cogsdil’s vehicle. After a bench trial the court rendered a money judgment in favor of

Fincher. Thereafter, Cogsdil filed a motion to recuse the trial judge on a ground he

assertedly discovered immediately after trial. The motion was referred to the regional

presiding judge who denied the motion. Cogsdil appealed, challenging a pretrial ruling

and the recusal judge’s ruling on the motion to recuse. In this Court, the appeal was

assigned case number 07-16-00303-CV. We affirmed the trial court and the recusal

judge.2

Meanwhile, Cogsdil did not supersede enforcement of the judgment and Fincher

served written discovery requests in aid of enforcement. See TEX. R. CIV. P. 621a. When

Cogsdil did not timely respond to Fincher’s discovery requests, Fincher sought an order

compelling responses and seeking attorney’s fees as a sanction under Texas Rule of Civil

v. Jimmy Fincher Body Shop, LLC, No. 07-17-00054-CV, 2017 Tex. App. LEXIS 1665 (Tex. App.—Amarillo Feb. 21, 2017, per curiam order) (citing Sintim v. Larson, 489 S.W.3d 551 (Tex. App.—Houston [14th Dist.] 2016, no pet.)). We will address all five issues Cogsdil raises. Cf. Texas R.R. Comm’n v. Air Prods. & Chems., Inc., 594 S.W.2d 219, 221-22 (Tex. Civ. App.—Austin 1980, writ ref’d n.r.e.); Letson v. Barnes, 979 S.W.2d 414, 417 (Tex. App.—Amarillo 1998, pet. denied). 2Cogsdil v. Jimmy Fincher Body Shop, LLC, No. 07-16-00303-CV, 2017 Tex. App. LEXIS 10166 (Tex. App.—Amarillo Oct. 30, 2017, pet. denied) (mem. op.).

2 Procedure 215.1(d).3 The trial court signed an order compelling Cogsdil’s responses to

Fincher’s discovery requests and awarding Fincher $750 as “reasonable expenses

incurred in obtaining [the] order.” This appeal followed.

Analysis

Recusal

By his first issue, Cogsdil complains the trial judge “continu[es] to refuse to recuse”

himself “where there was an appearance of impartiality.” In case number 07-16-00303-

CV we affirmed the regional presiding judge’s order overruling Cogsdil’s motion to recuse.

In the present appeal, the record and argument of the parties make clear that Cogsdil has

not filed a later recusal motion. Nothing is presented for our review. TEX. R. APP. P.

33.1(a). Cogsdil’s first issue is overruled.

Issues Two through Four

Cogsdil’s issues two through four present two contentions. First, he argues

Fincher’s motion to compel and for sanctions lacked certificates attesting that efforts to

resolve the discovery dispute without court intervention were attempted but failed. He

argues that if counsel for Fincher had conferred with counsel for Cogsdil before Fincher’s

motion to compel and for sanctions was prepared, the amount of attorney’s fees awarded

3 In relevant part the rule provides:

If the motion is granted, the court shall, after opportunity for hearing, require a party . . . whose conduct necessitated the motion . . . to pay . . . the moving party the reasonable expenses incurred in obtaining the order, including attorney fees . . . .

TEX. R. CIV. P. 215.1(d).

3 Fincher for preparing the motion could have been avoided. Second, he contends, at the

hearing on Fincher’s motion to compel and for sanctions, the trial court erred by denying

Cogsdil permission to argue a verified motion to strike Fincher’s motion.

Failure to Certify Attempted Non-Judicial Resolution

Cogsdil chose not to supersede Fincher’s money judgment and, for reasons not

made clear in the record, did not respond to Fincher’s written post-judgment discovery

requests. See TEX. R. CIV. P. 621a. Rather, almost a month after the due date for

discovery responses, Cogsdil provided counsel for Fincher a two-page personal financial

statement and, according to Cogsdil’s attorney’s transmittal letter to Fincher’s counsel,

offered to appear for a “short deposition to confirm his financial status/information.” The

letter concluded with the statement, “Let me know if these efforts to reach agreement on

discovery issues work for you. If not, attached is a Motion that we will present on the

issues.”4 The record contains no indication that Fincher’s counsel expressly responded

to the letter. Some six weeks after the date of the letter, Fincher filed his motion to compel

and for sanctions. The motion did not certify that efforts were made to resolve the dispute

without court intervention as required by Texas Rule of Civil Procedure 191.2.5 Although

4 The referred-to motion is not included in the record. 5 Rule 191.2 in pertinent part provides:

All discovery motions or requests for hearings relating to discovery must contain a certificate by the party filing the motion or request that a reasonable effort has been made to resolve the dispute without the necessity of court intervention and the effort failed.

TEX. R. CIV. P. 191.2.

4 not shown by the record, Cogsdil does not dispute that about ten days before the hearing

on Fincher’s motion, Fincher filed a certificate of conference pertaining to its motion.

At the outset of the hearing on Fincher’s motion, Cogsdil asked the court to hear

his previously unserved motion to strike Fincher’s motion to compel and for sanctions.

Fincher objected that Cogsdil’s motion was untimely under Texas Rule of Civil Procedure

21, and the court agreed. The parties then presented their arguments for and against the

relief Fincher sought. Fincher argued Cogsdil had waived all objections to the

unanswered discovery requests by not timely responding and nevertheless did not agree

to provide responses in the form requested. In Fincher’s view, its counsel and Cogsdil’s

counsel had sufficiently conferred about the discovery matter making further expression

of the impasse by a certificate of conference unwarranted. Counsel also pointed out a

certificate of conference was filed prior to the hearing. Cogsdil stressed the mandatory

nature of the certificate of conference requirements of rule 191.2. He asserted the

attorney’s fees Fincher sought for preparing its motion could have been avoided had

counsel for Fincher conferred with counsel for Cogsdil prior to beginning preparation of

the motion.

The court granted Fincher’s motion, ordering Cogsdil to respond to Fincher’s

written discovery requests within ten days of the order. It further ordered Cogsdil to pay

Fincher $750 for expenses incurred in obtaining the order.

We review a trial court’s ruling on a motion for sanctions for abuse of discretion.

Darya, Inc. v. Christian, 251 S.W.3d 227, 232 (Tex. App.—Dallas 2008, no pet.). “A trial

court abuses its discretion when it acts arbitrarily or unreasonably, without reference to

5 guiding rules or principles.” Iliff v. Iliff, 339 S.W.3d 74, 78 (Tex. 2011) (citing Downer v.

Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)).

This Court has held that “rules requiring certificates of conference are for the trial

court’s benefit; thus, they may be enforced at the option of the trial court.” Fuentes v.

Schooling, No. 07-07-00118-CV, 2008 Tex. App. LEXIS 9001, at *9 (Tex. App.—Amarillo

Dec. 3, 2008. no pet.) (mem. op.) (citing Tjernagel v. Roberts, 928 S.W.2d 297, 300-01

(Tex. App.—Amarillo 1996, orig. proceeding) (applying former rule); International Surplus

Lines Ins. Co. v. Wallace, 843 S.W.2d 773, 776 (Tex. App.—Texarkana 1992, orig.

proceeding) (because certifying that efforts to resolve a discovery dispute without court

intervention is for the benefit of the trial court, a trial court possesses discretion to forego

the benefit and not require a certificate). That the trial court opted not to vacate the

hearing on Fincher’s motion to compel and for sanctions as enforcement of the certificate

requirement in this instance does not demonstrate an abuse of discretion, especially since

the court had the benefit of a certificate of conference filed before the hearing.6

Failure to Proceed on Cogsdil’s Motion to Strike

As noted, at the hearing on Fincher’s motion Cogsdil presented a previously

unserved motion and sought its immediate hearing. By the motion, Cogsdil asked the

6 In the trial court and on appeal Cogsdil also has cited a local district court rule providing that courts will not set a hearing on any motion unless it is accompanied by a statement to the effect that, after conference on its merits, agreement could not be reached. Rules of Practice in Civil Cases in the District Courts of Potter and Randall Counties, Texas. Available at: http://www.co.potter.tx.us/page/potter.DCRules; last examined, November 5, 2018. His argument does not explain why the discretion afforded the trial court in its enforcement of rule 191.2 is not applicable also to the similar local rule.

6 court to strike Fincher’s motion, and his hearing request, because of his failure to comply

with rule 191.2. Although the trial court agreed with Fincher that Cogsdil’s motion was

untimely because it was served without three days’ notice as required by rule 21, review

of the hearing record shows the court allowed Cogsdil’s counsel to present the grounds

for relief requested by the motion as a counter-argument in defense of Fincher’s motion.

The court granted the relief Fincher requested. The following day, Cogsdil filed an

amended motion to strike which appears in essence identical to the motion he served the

previous day.

On appeal, Cogsdil contends the trial court wrongly applied rule 21 to his motion

to strike because it was filed during a hearing. In relevant part rule 21(b) provides: “An

application to the court for an order . . . not presented during a hearing or trial, must be

served upon all other parties not less than three days before the time specified for the

hearing . . . .” TEX. R. CIV. P. 21(b) (emphasis supplied). Here, we agree Cogsdil

presented his motion to strike during a hearing. Nonetheless, we are unable to see an

abuse of discretion in the procedure the court employed. We agree with Fincher that

Cogsdil was able to present the arguments made in his motion to strike. Moreover, the

motion reiterates his arguments based on Fincher’s failure to properly comply with rule

191.2’s certificate requirement. Because we have found the trial court did not abuse its

discretion by granting Fincher’s motion, notwithstanding Fincher’s failure initially to

comply with rule 191.2’s certification requirement, any error in not hearing Cogsdil’s

motion to strike, or in failing to set his amended motion for later hearing, was harmless.

Cogsdil’s second, third, and fourth issues are overruled.

7 Failure to File Findings of Fact and Conclusions of Law

By his fifth issue, Cogsdil argues the trial court reversibly erred by failing to file

timely requested findings of fact and conclusions of law concerning the hearing on

Fincher’s motion. The eighteen-page reporter’s record shows the hearing consisted only

of the argument of counsel. No testimonial or documentary evidence was offered or

received. For that reason its failure to file findings of fact and conclusions of law was not

error. See IKB Indus. v. Pro-Line Corp., 938 S.W.2d 440, 443 (Tex. 1997) (if a trial court

renders judgment or dismisses a case without hearing evidence, findings of fact and

conclusions of law are not appropriate). Cogsdil’s fifth issue is overruled.

Conclusion

Having overruled each of Cogsdil’s issues, we affirm the order of the trial court.

Per Curiam