In re Bill Heard Chevrolet, Ltd.

• Decision Date: 30 November 2006
• Docket Number: No. 01-06-00324-CV.,01-06-00324-CV.
• Citation: 209 S.W.3d 311
• Parties: In re BILL HEARD CHEVROLET, LTD., Relator.
• Court: Texas Court of Appeals

209 S.W.3d 311

In re BILL HEARD CHEVROLET, LTD., Relator.

No. 01-06-00324-CV.

Court of Appeals of Texas, Houston (1st Dist.).

November 30, 2006.

Wesson H. Tribble, Michael R. Ross, Tribble, Ross & Wagner, Houston, TX, for Relator.

Donna Patrice Willia Dorsey, Eddie M. Krenek, Krenek Law Offices, Houston, Tricia T. Connally, Krenek Law Offices, Katy, TX, for Real Party In Interest.

Panel consists of Justices TAFT, KEYES, and HANKS.

OPINION

TIM TAFT, Justice.

Relator, Bill Heard Chevrolet, Ltd., has filed a petition for writ of mandamus complaining of Judge Elliot's¹ December 16, 2005 and February 3, 2006 orders, denying relator's motion to compel arbitration and motion for reconsideration of that ruling. We deny the petition for writ of mandamus.

Background

John Todd and Suzanne Todd ("the Todds"), who are the real parties in interest, filed suit against relator, Bill Heard Chevrolet, Ltd., for violations under the Texas Deceptive Trade Practices—Consumer Protection Act ("DTPA"),² fraud, and breach of contract. Relator filed a motion to compel arbitration, which the trial court apparently denied, and a motion for reconsideration of its motion to compel arbitration. The trial court denied relator's motion for reconsideration, and relator filed a petition for writ of mandamus challenging that denial,³ asking this Court to order the trial court to withdraw its orders denying the motion to compel arbitration and denying reconsideration of that ruling.

Relator contends that the trial court denied its motion to compel arbitration because (1) the arbitration agreement was without consideration and (2) the "Retail Installment Contract" did not reference the agreement. The Todds do not dispute either that they signed the arbitration agreement as part of the process by which they purchased their vehicle, or that the Federal Arbitration Act ("FAA") applies, but, rather, they oppose arbitrating any claims because relator's alleged, repeated judicial admission that their transaction was a purchase in effect eliminated the issue in controversy.

This Court has concluded in the sister interlocutory appeal to this mandamus, Bill Heard Chevrolet v. John Todd & Suzanne Todd, 01-06-00183-CV, that the FAA applies both because the parties agreed to arbitrate under the FAA in the arbitration agreement and because the transaction involved interstate commerce. Accordingly, mandamus is appropriate to review the trial court's order denying arbitration. See In re Valero Energy Corp., 968 S.W.2d 916, 917 (Tex.1998).

Standard of Review

Mandamus is an extraordinary remedy, which will issue only to correct a clear abuse of discretion or a violation of a duty imposed by law when there is no adequate remedy by appeal. In re Ford Motor Co., 165 S.W.3d 315, 317 (Tex.2005) (orig. proceeding) (citing In re Prudential Ins. Co., 148 S.W.3d 124, 135-36 (Tex. 2004)); Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992) (orig. proceeding); Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985) (orig. proceeding); In re Taylor, 113 S.W.3d 385, 389 (Tex.App.-Houston [1st Dist.] 2003, orig. proceeding).

Mandamus Record

The mandamus record is insufficient for us to grant relief because it does not include either the trial court's written order denying relator's motion to compel arbitration or the reporter's record of the trial court's oral order denying relator's motion to compel arbitration. Moreover, considering that there is an indication that evidence was presented in hearings concerning the motion to compel arbitration, absent the reporter's records of those hearings, we must presume that the evidence before the trial court was adequate to support its denial of relator's motion to compel arbitration.

1. The Law

An appellate court may issue a writ of mandamus to correct a trial court for an abuse of discretion only if, after searching the record, it is clear that the trial court's decision was arbitrary and unreasonable. Walker, 827 S.W.2d 833, at 840. Hence, the party that complains of abuse of discretion has the burden to bring forth a sufficient record to show such abuse. See id. at 837 (holding that relator has burden of providing record establishing his right to mandamus relief); see also TEX.R.APP. P. 52.3(j)(1)(A) (requiring that appendix contain copy of any complained-of order); TEX.R.APP. P. 52.7(a)(1) (requiring that relator file with mandamus petition copy of every document material to his claim for relief).

The record in a mandamus proceeding must contain a certified or sworn copy of every document that is material to the relator's claim for relief and that was filed in any underlying proceeding and a properly authenticated transcript of any relevant testimony from any underlying proceeding, including any exhibits offered in evidence, or a statement that no testimony was adduced in connection with the matter of which complaint is made. TEX.R.APP. P. 52.7(a).

Rule 52.3(j)(1)(A) of the Rules of Appellate Procedure provides that the petition must contain, within its appendix, a certified or sworn copy of any complained-of order or any other document showing the complained-of matter. TEX.R.APP. P. 52.3(j)(1)(A). If the complained-of order is an oral order, the portion of the reporter's record that contains the order must be included in the petition's appendix. In re Vernor, 94 S.W.3d 201, 206 n. 8 (Tex.App.-Austin, 2002, orig. proceeding) (citing In re Perritt, 973 S.W.2d 776, 779 (Tex.App.-Texarkana 1998, orig. proceeding)).

Since 1923, Texas courts have consistently enforced the following general rule: all orders must be entered of record to be effective. Ex parte Rains, 113 Tex. 428, 433, 257 S.W. 217, 220 (1923). Entries made in a judge's docket are not accepted as a substitute for that record. Hamilton v. Empire Gas & Fuel Co., 134 Tex. 377, 384, 110 S.W.2d 561, 566 (1937). The order must be reduced to writing, signed by the trial court, and entered in the record. Utils. Pipeline Co. v. Am. Petrofina Mktg., 760 S.W.2d 719, 723 (Tex. App.-Dallas 1988, no writ); see TEX.R. CIV. P. 306a(2).⁴

One exception to the general rule exists. An order pronounced in open court is considered "rendered" when it is officially announced, and it is valid from that time forward, so that formal entry is only a ministerial act.⁵ Dunn v. Dunn, 439 S.W.2d 830, 832 (Tex.1969); UMC, Inc. v. Arthur Bros., Inc., 626 S.W.2d 819, 820 (Tex.App.-Corpus Christi 1981), writ ref'd n.r.e., 647 S.W.2d 244 (Tex.1982). Therefore, to be effective, all orders and rulings must be made on the record either in writing or in open court transcribed by the court reporter. See TEX.R.APP. P. 33.1(a)(2).

A docket-sheet entry ordinarily forms no part of the record that may be considered; rather, it is a memorandum made for the trial court and clerk's convenience. Energo Int'l Corp. v. Modern Indus. Heating, Inc., 722 S.W.2d 149, 151 (Tex.App.-Dallas 1986, no writ); Azopardi v. Hollebeke, 428 S.W.2d 167, 168 (Tex.Civ. App.-Waco 1968, no writ); Restelle v. Williford, 364 S.W.2d 444, 445 (Tex.Civ.App.-Beaumont 1963, writ ref'd n.r.e.). A docket-sheet entry cannot contradict or take the place of a written order or judgment. See, e.g., Smith v. McCorkle, 895 S.W.2d 692, 692 (Tex.1995); Faulkner v. Culver, 851 S.W.2d 187, 188 (Tex.1993) (holding that docket entry granting new trial was not substitute for signed order); In re Estate of Townes, 934 S.W.2d 806, 807-08 (Tex.App.-Houston [1st Dist.] 1996, orig. proceeding) (holding that trial court's oral granting of relator's motion for new trial, initialed docket sheet entry stating "MNT granted," and signed order setting case for trial, did not constitute "written order" granting new trial).

Docket-sheet entries are inherently unreliable because they lack the formality of orders and judgments. First Nat'l Bank of Giddings, Tex. v. Birnbaum, 826 S.W.2d 189, 191 (Tex.App.-Austin 1992, no writ) (citing Energo, 722 S.W.2d at 151 n. 2) (holding that docket entry denying turnover relief was not order). Perhaps due to this unreliability, a docket-sheet entry is generally considered insufficient to constitute a judgment or decree of the court. See Formby's KOA v. BHP Water Supply Corp., 730 S.W.2d 428, 430 (Tex. App.-Dallas 1987, no writ); Loper v. Hosier, 148 S.W.2d 889, 891 (Tex.Civ.App.-Dallas 1941, writ dism'd judgm't cor.). This rule is especially important if the docket-sheet entry is unsigned. See W.C. Banks, Inc. v. Team, Inc., 783 S.W.2d 783, 785 (Tex.App.-Houston [1st Dist.] 1990, no writ) (holding that unsigned docket-sheet entry reciting that judgment was rendered for one party held insufficient to constitute rendition of judgment).

Nevertheless, docket-sheet entries have, along with other evidence and under limited circumstances, supplied proof that the trial court orally rendered judgment on a certain date. See, e.g., Henry v. Cullum Co., Inc., 891 S.W.2d 789, 793 (Tex.App.-Amarillo 1995, writ denied) (determining that trial court rendered judgment on particular date when (1) trial court orally announced that it was granting partial summary judgment, even though there was no reporter's record showing trial court's comments at conclusion of hearing; (2) agreed motion for severance of claims acknowledged oral rendition of partial summary judgment at close of hearing; and (3) docket-sheet notation initialed by trial judge evidenced court's action).

The trial court's notation on the docket sheet can sometimes be used to support the contention that judgment was orally rendered on a certain date. See TEX. FAM.CODE ANN. § 101.026; Dearing v. Johnson, 947 S.W.2d 641, 643 (Tex.App.-Texarkana 1997, no writ) (holding that judge's affidavit that he orally rendered judgment and docket sheet notation "divorce granted" amounted to rendition of judgment); Oak Creek Homes Inc. v. Jones, 758 S.W.2d 288, 290-91 (Tex.App.-Waco 1988, no writ) (holding that judge's announcement that "I'll grant all the relief you've asked for"...