Opinion issued=20
November 30, 2006
In The
Court of=20
Appeals
For The
First =
District of=20
Texas
____________
NO. 01-06-00324-CV
____________
IN RE BILL HEARD CHEVEROLET, LTD.,=20
Relator
Original Proceeding on Petition for Writ =
of=20
Mandamus
O P I =
N I O N=20
<=
/SPAN>Relator, Bill Heard =
Cheverolet, Ltd.,=20
has filed a petition for writ of mandamus complaining of Judge=20
Elliot=E2=80=99s ![3DFootnote](3D"")
December 16, 2005 and February =
3, 2006=20
orders, denying relator=E2=80=99s motion to compel arbitration and =
motion for=20
reconsideration of that ruling. We deny the petition for =
writ of=20
mandamus.
Background
<=
/SPAN>John=20
Todd and Suzanne Todd (=E2=80=9Cthe Todds=E2=80=9D), who are the real parties in =
interest,=20
filed suit against relator, Bill Heard Chevrolet, Ltd., for =
violations=20
under the Texas Deceptive Trade Practices=E2=80=93Consumer =
Protection Act=20
(=E2=80=9CDTPA=E2=80=9D),
fraud, and breach of contract. =
Relator=20
filed a motion to compel arbitration, which the trial court =
apparently=20
denied, and a motion for reconsideration of its motion to compel=20
arbitration. The trial court denied relator=E2=80=99s =
motion for=20
reconsideration, and relator filed a petition for writ of mandamus =
challenging that denial,
asking this Court to order the =
trial court=20
to withdraw its orders =
denying the=20
motion to compel arbitration and denying reconsideration of that =
ruling.=20
<=
/SPAN>Relator contends that the =
trial court=20
denied its motion to compel arbitration because (1) the =
arbitration=20
agreement was without consideration and (2) the =E2=80=9CRetail =
Installment=20
Contract=E2=80=9D did not reference the agreement. The Todds do =
not dispute either=20
that they signed the arbitration agreement as part of the process =
by which=20
they purchased their vehicle, or that the Federal Arbitration Act =
(=E2=80=9CFAA=E2=80=9D)=20
applies, but, rather, they oppose arbitrating any claims because =
relator=E2=80=99s=20
alleged, repeated judicial admission that their transaction was a =
purchase=20
in effect eliminated the issue in controversy.
&nbs=
p;This=20
Court has concluded in the sister interlocutory appeal to this =
mandamus,=20
Bill Heard Chevrolet v. John Todd & Suzanne Todd,=20
01-06-00183-CV, that the FAA applies both because the parties =
agreed=20
to arbitrate under the FAA in the arbitration agreement and =
because the=20
transaction involved interstate commerce. Accordingly, mandamus is =
appropriate to=20
review the trial court=E2=80=99s order denying arbitration. See =
In re Valero=20
Energy Corp., 968 S.W.2d 916, 917 (Tex. =
1998).
<=
/SPAN>=20
Standard of Review
<=
/SPAN>Mandamus=20
is an extraordinary remedy, which will issue only to correct a =
clear abuse=20
of discretion or a violation of a duty imposed by law when there =
is no=20
adequate remedy by appeal. In re Ford Motor Co., 165 S.W.3d =
315,=20
317 (Tex. 2005) (orig. proceeding) (citing In re Prudential =
Ins.=20
Co., 148 S.W.3d 124, 135-36 (Tex. 2004)); Walker v. =
Packer, 827=20
S.W.2d 833, 839 (Tex. 1992) (orig. proceeding); Johnson v. =
Fourth Court=20
of Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. =
proceeding); In=20
re Taylor, 113 S.W.3d 385, 389 (Tex. App.=E2=80=94Houston [1st =
Dist.] 2003,=20
orig.=20
=
proceeding). &=
nbsp; &n=
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p;
Mandamus=20
Record
&nbs=
p;The=20
mandamus record is insufficient for us to grant relief =
because=20
it does not include =
either the=20
trial court=E2=80=99s written order denying relator=E2=80=99s =
motion to compel arbitration=20
or the reporter=E2=80=99s record of the trial court=E2=80=99s oral =
order denying relator=E2=80=99s=20
motion to compel arbitration. Moreover, considering that =
there is=20
an indication that =
evidence was=20
presented in hearings concerning the motion to compel arbitration, =
absent=20
the reporter=E2=80=99s records of those hearings, we must presume that the =
evidence before=20
the trial court was adequate to support its denial of =
relator=E2=80=99s motion to=20
compel arbitration.
&nbs=
p;1. The=20
Law
&nbs=
p;An appellate court may =
issue a=20
writ of mandamus to correct a trial court for an abuse of discretion only if, =
after=20
searching the record, it is clear that the trial court=E2=80=99s =
decision was=20
arbitrary and unreasonable. Walker, 827 S.W.2d 833, =
at 840.=20
Hence, the party that =
complains of=20
abuse of discretion has the burden to bring forth a sufficient =
record to=20
show such abuse. See id. at 837 (holding that relator has burden of =
providing=20
record establishing his right to mandamus relief); see also=20
Tex. R. App. =
P.=20
52.3(j)(1)(A) (requiring that appendix contain copy of any =
complained-of=20
order); Tex. R. App. =
P.=20
52.7(a)(1) (requiring that relator file with mandamus petition =
copy of=20
every document material to his claim for relief).
<=
/SPAN>The record in a mandamus =
proceeding must=20
contain a certified or sworn copy of every document that is =
material to=20
the relator=E2=80=99s claim for relief and that was filed in any =
underlying=20
proceeding and a properly authenticated transcript of any relevant =
testimony from any underlying proceeding, including any exhibits =
offered=20
in evidence, or a statement that no testimony was adduced in =
connection=20
with the matter of which complaint is made. Tex. R. App. P.=20
52.7(a).
&nbs=
p;Rule=20
52.3(j)(1)(A) of the Rules of Appellate Procedure provides that =
the=20
petition must contain, within its appendix, a certified or sworn =
copy of=20
any complained-of order or any other document showing the =
complained-of=20
matter. Tex. R. App. =
P.=20
52.3(j)(1)(A). If the complained-of order is an oral order, the =
portion of=20
the reporter=E2=80=99s record that contains the order must =
be included in=20
the petition=E2=80=99s appendix. In re Vernor, 94 S.W.3d 201, 206 n.8 (Tex. =
App.=E2=80=94Austin,=20
2002, orig. proceeding) (citing In re =
Perritt, 973=20
S.W.2d 776, 779 (Tex. App.=E2=80=94Texarkana 1998, orig.=20
proceeding).
&nbs=
p;Since=20
1923, Texas courts have consistently enforced the following =
general rule:=20
all orders must be entered of record to be effective. Ex parte=20
Rains, 113 Tex. 428, 433, 257 S.W. 217, 220 (1923). Entries =
made in a=20
judge=E2=80=99s docket are not accepted as a substitute for that =
record.=20
Hamilton v. Empire Gas & Fuel Co., 134 Tex. 377, 384, =
110=20
S.W.2d 561, 566 (1937). The order must be reduced to writing, =
signed by=20
the trial court, and entered in the record. Utils. Pipeline Co. =
v. Am.=20
Petrofina Mktg., 760 S.W.2d 719, 723 (Tex. App.=E2=80=94Dallas =
1988, no writ);=20
see Tex. R. Civ. =
P.=20
306a(2).
<=
/SPAN>One=20
exception to the general rule exists. An order pronounced in open =
court is=20
considered =E2=80=9Crendered=E2=80=9D when it is officially =
announced, and it is valid=20
from that time forward, so that formal entry is only a ministerial =
act.
Dunn v. Dunn, 439 S.W.2d 830, 832 =
(Tex.=20
1969); UMC, Inc. v. Arthur Bros., Inc., 626 S.W.2d 819, 820 =
(Tex.=20
App.=E2=80=94Corpus Christi 1981), writ ref=E2=80=99d n.r.e., 647 =
S.W.2d 244 (Tex. 1982).=20
Therefore, to be effective, all orders and rulings must be made on =
the=20
record either in writing or in open court transcribed by the court =
reporter. See Tex. =
R. App.=20
P. 33.1(a)(2).
<=
/SPAN>A=20
docket-sheet entry ordinarily forms no part of the record that may =
be=20
considered; rather, it is a memorandum made for the trial court =
and=20
clerk=E2=80=99s convenience. Energo Int=E2=80=99l Corp. v. =
Modern Indus. Heating,=20
Inc., 722 S.W.2d 149, 151 (Tex. App.=E2=80=94Dallas 1986, no =
writ);=20
Azopardi v. Hollebeke, 428 S.W.2d 167, 168 (Tex. Civ. =
App.=E2=80=94Waco=20
1968, no writ); Restelle v. Williford, 364 S.W.2d 444, 445 =
(Tex.=20
Civ. App.=E2=80=94Beaumont 1963, writ ref=E2=80=99d n.r.e.). A =
docket-sheet entry cannot=20
contradict or take the place of a written order or judgment. =
See,=20
e.g., Smith v. McCorkle, 895 S.W.2d 692, 692 (Tex. =
1995);=20
Faulkner v. Culver, 851 S.W.2d 187, 188 (Tex. 1993) =
(holding that=20
docket entry granting new trial was not substitute for signed =
order);=20
In re Estate of Townes, 934 S.W.2d 806, 807=E2=80=9308 =
(Tex. App.=E2=80=94Houston=20
[1st Dist.] 1996, orig. proceeding) (holding that trial =
court=E2=80=99s oral=20
granting of relator=E2=80=99s motion for new trial, initialed =
docket sheet entry=20
stating =E2=80=9CMNT granted,=E2=80=9D and signed order setting =
case for trial, did not=20
constitute =E2=80=9Cwritten order=E2=80=9D granting new =
trial).
<=
/SPAN>Docket-sheet=20
entries are inherently unreliable because they lack the formality =
of=20
orders and judgments. First Nat=E2=80=99l Bank of Giddings, =
Tex. v.=20
Birnbaum, 826 S.W.2d 189, 191 (Tex. App.=E2=80=94Austin 1992, =
no writ)=20
(citing Energo, 722 S.W.2d at 151 n.2) (holding that docket =
entry=20
denying turnover relief was not order). Perhaps due to this=20
unreliability, a =
docket-sheet=20
entry is generally considered insufficient to constitute a =
judgment or=20
decree of the court. See Formby=E2=80=99s KOA v. BHP Water =
Supply Corp.,=20
730 S.W.2d 428, 430 (Tex. App.=E2=80=94Dallas 1987, no =
writ); Loper v.=20
Hosier, 148 S.W.2d 889, 891 (Tex. Civ. =
App.=E2=80=94Dallas 1941, writ=20
dism=E2=80=99d judgm=E2=80=99t cor.). This rule is especially =
important if the=20
docket-sheet entry is unsigned. See W.C. Banks, Inc. v. Team, =
Inc.,=20
783 S.W.2d 783, 785 (Tex. App.=E2=80=94Houston [1st Dist.] 1990, =
no writ) (holding=20
that unsigned docket-sheet entry reciting that judgment was =
rendered for=20
one party held insufficient to constitute rendition of judgment).=20
<=
/SPAN>Nevertheless,=20
docket-sheet entries have, along with other evidence and under =
limited=20
circumstances, supplied proof that the trial court orally rendered =
judgment on a certain date. See, e.g., Henry v. Cullum =
Co.,=20
Inc., 891 S.W.2d 789, 793 (Tex. App.=E2=80=94Amarillo 1995, =
writ denied)=20
(determining that trial court rendered judgment on particular date =
when=20
(1) trial court orally announced that it was granting partial =
summary=20
judgment, even though there was no reporter=E2=80=99s record =
showing trial court=E2=80=99s=20
comments at conclusion of hearing; (2) agreed motion for severance =
of=20
claims acknowledged oral rendition of partial summary judgment at =
close of=20
hearing; and (3) docket-sheet notation initialed by trial judge =
evidenced=20
court=E2=80=99s action).
<=
/SPAN>The trial court=E2=80=99s notation on =
the docket sheet can=20
sometimes be used to support the contention that judgment =
was=20
orally rendered on a certain date.=20
See Tex. Fam. Code =
Ann.=20
=C2=A7 101.026; Dearing v. Johnson, 947 S.W.2d 641, =
643 (Tex.=20
App.=E2=80=94Texarkana 1997, no writ) (holding that =
judge=E2=80=99s affidavit that he=20
orally rendered judgment and docket sheet notation =
=E2=80=9Cdivorce granted=E2=80=9D=20
amounted to rendition of judgment); Oak Creek Homes Inc. v. =
Jones,=20
758 S.W.2d 288, 290=E2=80=9391 (Tex. App.=E2=80=94Waco 1988, no =
writ) (holding that=20
judge=E2=80=99s announcement that =E2=80=9CI=E2=80=99ll grant all =
the relief you=E2=80=99ve asked for=E2=80=9D and=20
docket notation of =E2=80=9Cdefault judgment,=E2=80=9D followed by =
judge=E2=80=99s signature,=20
amounted to rendition). We conclude, however, that =
the=20
initialed docket-sheet entry here was insufficient to constitute a =
decree=20
of the trial court.
<=
/SPAN>2. Analysis
<=
/SPAN>Here, relator provided =
verified copies=20
of (1) the Todds=E2=80=99 original petition, (2) the arbitration =
agreement signed=20
by the Todds, (3) relator=E2=80=99s motion to compel, (4) the =
trial court=E2=80=99s=20
docketing statement, (5) the motion for reconsideration of =
relator=E2=80=99s=20
motion to compel, and (6) the signed trial-court order denying =
relator=E2=80=99s=20
motion for reconsideration on its motion to compel arbitration.=20
Relator did not provide (1)=20
a signed, written order denying arbitration or a =
reporter=E2=80=99s record of the=20
oral order; (2) a reporter=E2=80=99s record of the December =
16 hearing held=20
by the trial court on relator=E2=80=99s motion to compel arbitration; or (3) a =
reporter=E2=80=99s=20
record of the February 3 hearing held by the trial court on =
relator=E2=80=99s motion for reconsideration on its motion to =
compel arbitration.=20
Other than the =
arbitration=20
agreement, no documents related to relator=E2=80=99s sale of the =
vehicle to the=20
Todds were attached to the petition for writ of mandamus, nor were =
any=20
such documents included in the clerk=E2=80=99s record in the =
related appeal, No. =
01-06-00183-CV.
&nbs=
p;The=20
mandamus record does not provide a written order or =
reporter=E2=80=99s record=20
reflecting an oral ruling in open court. The mandamus record =
includes the=20
trial court=E2=80=99s initialed docket sheet notation, stating, =
=E2=80=9CTook up=20
[Defendant=E2=80=99s] motions to compel arbitration and abate =
proceedings.=20
Denied.=E2=80=9D The record also includes an order denying =
relator=E2=80=99s motion for=20
reconsideration; however, that order does not state the trial =
court=E2=80=99s=20
ruling on the motion to compel.
The=20
mandamus record is insufficient because it does not include either =
the=20
trial court=E2=80=99s written order denying relator=E2=80=99s =
motion to compel arbitration=20
or the reporter=E2=80=99s record of the trial court=E2=80=99s oral =
order denying relator=E2=80=99s=20
motion to compel arbitration. See Tex. R. App. P. =
52.3(j)(1)(A);=20
see also In re Vernor, 94 S.W.3d at 206 n.8 (citing In =
re=20
Perritt, 973 S.W.2d at 779).
<=
/SPAN>Moreover,=20
relator=E2=80=99s verified record indicates that evidence =
contesting the validity=20
of the arbitration agreement was introduced at the hearings. =
Specifically,=20
relator=E2=80=99s motion for reconsideration recited, =
=E2=80=9C[The trial court] ruled=20
that the arbitration agreement entered into between [the Todds] =
and=20
[relator] was without consideration. The [trial court] also opined =
that=20
the Retail Installment Contract lacked a reference to the =
Arbitration=20
Agreement entered into between the parties.=E2=80=9D The =
=E2=80=9CRetail Installment=20
Contract=E2=80=9D is not part of the record before us; nor was it attached to =
relator=E2=80=99s=20
motion to compel arbitration or motion for=20
reconsideration.
<=
/SPAN>Given=20
relator=E2=80=99s recitation that the trial court considered =
evidence that is not=20
in the record and is not before us, the failure of relator to =
present=20
transcripts of the hearings creates a presumption that evidence was presented during =
the=20
hearings and that that evidence supported an implied =
finding by the=20
trial court that a valid =
arbitration agreement did not exist. See Michiana Easy =
Livin=E2=80=99 Country,=20
Inc. v. Holten, 168 S.W.3d 777, 781=E2=80=9384 (Tex. 2005) =
(stating that if=20
proceeding=E2=80=99s nature, trial court=E2=80=99s order, =
party=E2=80=99s briefs, or other=20
indications show that evidentiary hearing, at which evidence other =
than=20
that attached to motion under consideration was considered, took =
place in=20
open court, then complaining party must present record of that =
hearing to=20
establish harmful error). Compare In re Palm =
Harbor=20
Homes, Inc., 195 S.W.3d 672, 675=E2=80=9376 (Tex. 2006) (orig. =
proceeding)=20
(rejecting claim that appellate court must presume evidence that =
supported=20
trial court=E2=80=99s order was presented at pretrial hearing, when real =
party in=20
interest conceded that evidence was not presented at that=20
hearing).
<=
/SPAN>Relator=E2=80=99s own =
statements here and below=20
indicate that evidence other than that attached to its motions was =
presented to the trial court at the December 16 and February 3 =
hearings.=20
Absent the reporter=E2=80=99s records from those hearings, we must =
presume that=20
the evidence before the trial court was adequate to support =
its=20
denial of relator=E2=80=99s motion to compel arbitration in favor =
of the Todds.=20
See Bryant v. United Shortline Inc. Assurance Serv., N.A., =
972=20
S.W.2d 26, 31 (Tex. 1998); Sandoval v. Comm=E2=80=99n for =
Lawyer=20
Discipline, 25 S.W.3d 720, 722 (Tex. App.=E2=80=94Houston =
[14th Dist.] 2000,=20
pet. denied).
Conclusion
<=
/SPAN>We=20
deny the petition for writ of mandamus. See Tex. R. App. P. 52.8=20
(a).
&=
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p; =
; Tim =
Taft
=
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; Justice
Panel consists of =
Justices=20
Taft, Keyes, and Hanks.
Justice Keyes,=20
=
concurring. &=
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