*1 3H pro- eluded from Park and Yates fails to face, hearing, policy,
vide on its Further, procedural process. due
violates policy unconstitutionally
the unwritten
vague policy give since the fails to ade-
quate prohibited. notice of what conduct is policy
Because the on unwritten relied unconstitutional,
Pool is Pool au- lacked
thority Anthony to ban from Park Yates evidence, policy.
under such there-
fore, legally support insufficient to trespass.
conviction for criminal reasons,
For these we judg- reverse the judgment
ment conviction and render a acquittal. CHEVROLET,
In re BILL HEARD
LTD., Relator.
No. 01-06-00324-CV. Texas, Appeals
Court of (1st Dist.).
Houston
Nov. *2 Tribble, Ross, H. Michael R.
Wesson Houston, Tribble, TX, Wagner, Ross & Relator. Dorsey, M.
Donna Patrice Willia Eddie Offices, Houston, Krenek, Krenek Law Offices, Connally, T. Law Trida Krenek TX, Party for Real In Interest. Katy, TAFT, Panel consists of Justices KEYES, and HANKS.
OPINION TAFT, TIM Justice. Chevrolet,
Relator, Ltd., has Bill Heard com- petition for writ of mandamus December plaining Judge Elliot’s1 orders, denying February 2005 and Chevrolet,Ltd., Elliot, judge Bill Brady G. & Todd v. Heard Honorable The Suzanne County, Court of Fort Bend 268th District court cause no. 05-CV-144176. underlying John Todd lawsuit is Texas. motion arbitration and Bill Heard Chevrolet John Todd & Su- Todd, 01-06-00183-CV, ruling. motion for reconsideration of that zanne deny petition parties We for writ of manda- applies FAA both because the mus. agreed to FAA in the arbitrate under the *3 agreement arbitration and because the
Background transaction involved interstate commerce. (“the John Todd and Suzanne Todd Accordingly, appropriate mandamus is to Todds”), are parties who the real in inter- the denying review trial court’s order arbi- est, relator, suit against Bill Heard Energy Corp., tration. See In re 968 Valero Ltd., Chevrolet, 916, (Tex.1998). violations under 917 Deceptive Texas Trade Practices-Consum- (“DTPA”),2 fraud, er Protection Act and Standard of Review breach of contract. Relator filed a motion extraordinary Mandamus is an arbitration, to compel which trial court remedy, only which will issue to correct a denied, apparently motion and a for recon- clear abuse of discretion or a violation of a to compel sideration its motion arbitra- duty imposed by law when there tion. The court mo- denied relator’s remedy by appeal. In re Ford adequate reconsideration, tion for and relator filed a Co., (Tex.2005) 315, 165 Motor 317 petition for writ of mandamus challenging (orig. proceeding) (citing In re Prudential denial,3 that asking Court this to order the Co., (Tex. 124, Ins. 148 S.W.3d 135-36 to denying court its withdraw orders Packer, 2004)); 833, Walker v. 827 S.W.2d compel the motion to deny- arbitration and (Tex.1992) (orig. proceeding); 839 Johnson ing ruling. reconsideration of that Appeals, v. Fourth Court 700 S.W.2d Relator contends that the trial court de- (Tex.1985) (orig. proceeding); 917 In motion compel nied its be- arbitration re Taylor, (Tex.App. 113 S.W.3d 389 (1) cause agreement was 2003, orig. proceeding). -Houston[1st Dist.] (2)
without consideration and
the “Retail
Installment Contract” did not reference
Mandamus Record
agreement.
do
dispute
Todds
they signed
either
the arbitration
The mandamus record is insufficient for
agreement
part
process
as
of the
which us
in-
grant
relief because it does not
they purchased
vehicle,
their
or
clude either the trial court’s written order
(“FAA”)
Federal Arbitration
applies,
Act
denying
compel
relator’s motion to
arbi-
but, rather,
they oppose
any
arbitrating
or
reporter’s
tration
tri-
record of the
alleged,
claims because
repeated
relator’s
denying
al court’s oral order
mo-
judicial admission that
their transaction
Moreover,
compel
tion to
arbitration.
purchase
was a
in effect eliminated the
considering that
is an
there
indication that
controversy.
issue in
evidence was
presented
hearings con-
arbitration,
This Court has concluded in the sister
the motion
cerning
compel
interlocutory
mandamus,
appeal
to this
the reporter’s
absent
records of those
(Ver-
§§
2. Tex.
&
Bus. Com.Code Ann.
17.41-854
tion to
arbitration. We have consid-
Supp.2005).
non
&
01-06-00183-CV,
2002
ered cause numbers
2006
01-06-00324-CV,
WL
2006 WL
Appellant
interlocutory appeal,
also filed an
together,
315 1981), writ); (Tex.App.-Corpus App.-Dallas 1987, writ Loper Christi ref d no v. Hosi n.r.e., (Tex.1982). er, 889, S.W.2d 244 There- 891 (Tex.Civ.App.-Dal fore, effective, cor.). 1941, be rulings judgm’t all orders and las writ dism’d This be must made on especially the record either in rule is if important the docket- writing Banks, or in open entry court transcribed sheet unsigned. See W.C. Tex.R.App. reporter. Team, Inc., court See Inc. v. 783 S.W.2d 38.1(a)(2). (Tex.App.-Houston [1st Dist.] no writ) (holding unsigned docket-sheet A entry docket-sheet ordinari entry reciting judgment was rendered ly part forms no may the record that be party one held insufficient to constitute considered; rather, ais memorandum rendition of judgment). made the trial court and clerk’s con have, Nevertheless, docket-sheet entries Energo venience. Corp. Int’l v. Modern along with other evidence under limit- Inc., Heating, Indus. 722 S.W.2d circumstances, supplied ed proof that the 1986, writ); (Tex.App.-Dallas no Azopardi orally judgment rendered aon Hollebeke, (Tex.Civ. 167,168 428 S.W.2d See, e.g., certain date. Henry v. Cullum 1968, writ); App.-Waco Restelle v. Wil *5 Co., Inc., 789, 891 S.W.2d 793 (Tex.App.- liford, 444, 364 S.W.2d 445 (Tex.Civ.App.- denied) 1995, Amarillo writ n.r.e.). (determining 1963, Beaumont writ d A ref dock that trial judgment par- rendered on entry et-sheet cannot contradict or take (1) ticular date trial court orally when an- place of a written or judgment. order See, nounced that it e.g., McCorkle, granting partial was sum- Smith v. 895 S.W.2d mary 692, judgment, though (Tex.1995); Culver, 692 even there was no Faulkner v. (Tex.1993) reporter’s 187, showing record trial 851 S.W.2d court’s (holding 188 (2) entry that docket comments at conclusion of granting hearing; new trial was agreed order); not substitute for motion for severance of signed claims ac- In re Townes, 806, knowledged Estate oral of partial 934 S.W.2d rendition sum- 807-08 of (3) (Tex.App.-Houston 1996, mary judgment at of orig. hearing; Dist.] close and [1st proceeding) (holding trial docket-sheet by court’s oral notation initialed action). granting trial, judge relator’s motion for new evidenced court’s entry initialed docket stating sheet “MNT The trial court’s notation on the granted,” signed and setting order case for docket sheet can sometimes be used to trial, did not constitute “written order” support the that judgment contention was trial). granting new orally rendered a certain on date. See 101.026; Docket-sheet entries are § inher Dearing v. Tex. Fam.Code Ann. ently they Johnson, unreliable 641, because lack the for 947 (Tex.App.- S.W.2d 643 mality writ) judgments. 1997, orders and First Texarkana (holding no Birnbaum, Nat’l Bank of Giddings, Tex. v. judge’s orally affidavit that he rendered 189,191 1992, 826 S.W.2d (Tex.App.-Austin judgment and sheet docket notation “di writ) (citing no Energo, granted” 722 at 151 S.W.2d vorce amounted to rendition of 2) (holding entry n. judgment); docket denying Oak Creek Homes Inc. v. order). Jones, turnover relief was not Perhaps 758 290-91 (Tex.App. S.W.2d writ) to this a unreliability, due Waco (holding judge’s docket-sheet entry generally grant considered insufficient announcement that “I’ll all the relief to constitute a judgment you’ve decree of the asked for” and docket notation of court. See Formby’s judgment,” by v. BHP “default judge’s KOA Water followed (Tex. rendition). Supply Corp., signature, 730 430 amounted We 316
conclude, however, not include that the initialed dock cient because does either denying order relator’s entry was to con trial court’s written et-sheet here insufficient compel report- motion to arbitration or court. stitute a of the trial decree trial court’s oral order er’s record Analysis compel motion denying relator’s arbitra- TexR.App. Here, provided relator verified 52.3(j)(l)(A); tion. see See (1) original copies petition, the Todds’ Vemor, at n. also In re 94 S.W.3d 8 (2) by agreement 779). signed Perritt, the arbitration (citing In re at (3) Todds, compel, relator’s motion to Moreover, indi- relator’s verified record (4) statement, docketing trial court’s validity contesting that evidence cates (5) of rela- the motion for reconsideration agreement was intro- arbitration (6) signed compel, tor’s motion to and rela- hearings. Specifically, duced at the denying trial-court relator’s motion order recited, tor’s motion reconsideration compel on its motion to reconsideration ruled that the arbitration court] “[The (1) provide not a arbitration. Relator did into between agreement [the entered signed, denying 'written was consider- Todds] [relator] without order; reporter’s or a record of the oral opined that [trial court] ation. The also (2) the December reporter’s record of lacked the Retail Installment Contract on hearing by held the trial court Agreement Arbitration reference (3) arbitration; or a re- to compel motion parties.” The into between the entered February hearing porter’s of the part Contract” “Retail Installment held the trial court on relator’s motion us; nor was it at- of the record before compel on motion to for reconsideration its motion to arbi- tached to relator’s *6 the arbitration. Other than arbitration tration or motion for reconsideration. to rela- agreement, no documents related trial recitation that the Given relator’s to the Todds were tor’s sale the vehicle that is not in court considered evidence for writ manda- petition attached us, the failure record and not before mus, includ- nor such documents were of the hear present transcripts relator to in in the the related ed clerk’s record presumption a that evidence ings creates 01-06-00183-CV, No. 2006 WL appeal, during hearings and presented was 3438571. supported implied an that that evidence a arbi finding by the trial court that valid provide does The mandamus record not not Mic re- did exist. See agreement tration reporter’s a written order Holten, Easy Country, Livin’ Inc. ruling court. The hiana flecting open an oral in (Tex.2005) (stating court’s 168 781-84 the trial S.W.3d mandamus record includes nature, if trial court’s notation, stating, proceeding’s initialed docket sheet briefs, order, indications or other party’s up motions to [Defendant’s] “Took at evidentiary hearing, which De- abate show proceedings. arbitration and mo than attached to includes an order evidence other nied.” The record also considered, was for reconsidera- tion under consideration denying relator’s motion court, open complaining in tion; place took then however, does not state that order hearing present record of ruling party the motion must court’s on trial error). Compare In harmful to establish The mandamus record is insuffi- compel.6 acknowledging trial a brief party did not file interest real in interest However, for arbitra- petition. denial relator's motion in court’s response interlocutory party in tion. appeal, the real related Homes, Inc., cedure, re Palm Harbor procedure, not governs federal in (Tex.2006) 672, 675-76 (orig. proceeding) state court and provide Texas law does not (rejecting claim that appellate interlocutory court must for of an appeal order under presume FAA, only evidence that supported interlocutory appeal an presented court’s order was order under the pretrial at Texas Arbitration Act (TAA). hearing, Thus, when real in Id. at if party interest con 271-72. a motion ceded that to compel evidence was FAA presented at under the court, that hearing). heard in state mandamus is order, protest available to court’s Relator’s own statements here and be- even if though brought the same case were low indicate that evidence other than that court, FAA in under the federal interlocu- attached to its presented motions was available, tory appeal would if be the trial court at the December 16 and TAA, same brought case were under the February hearings. report- Absent the interlocutory appeal would be available. er’s records from hearings, those we must presume that the evidence before the trial supreme As the acknowledged adequate court was to support its denial of B. Anglin, litigants Jack allege who enti- relator’s motion to compel arbitration in FAA, tlement to arbitration under the favor of the Todds. Bryant See v. United TAA, the alternative under the “are Serv., N.A., Shortline Inc. Assurance 972 burdened pursue with the need to parallel (Tex.1998); Sandoval v. proceedings interlocutory appeal of —an Comm’n Lawyer Discipline, 25 S.W.3d the trial court’s denial under the Texas 720, 722 (Tex.App.-Houston [14th Act, Dist.] and a writ of mandamus from the denied). pet. denial under the Federal Act.” Id. Al- though the court opined, can “[W]e con- Conclusion ceive of no benefit from such an unneces- We deny petition for writ of manda- sarily expensive rule,” and cumbersome it Tex.R.App. mus. See 52.8(a). concluded, that it could enlarge appel- “not jurisdiction late legislative absent man- KEYES,
Justice concurring. Therefore, date.” Id. urged Legisla- *7 KEYES, ture “to Justice, amending EVELYN V. consider the Texas Act permit to concurring. interlocutory appeals of orders pursuant issued to the Federal Act.” Id. It join I panel opinion. I sepa- write urged in vain. rately to point out that this case illustrates the inequity and judi- enormous date, waste of To 1182 cases have cited to B. Jack cial and legal resources that Anglin. have followed Many of these cases in- have supreme on the court’s determination in volved situations where applicability of Co., Anglin Jack B. Inc. v. Tipps, 842 cases, the FAA was uncertain. In these (Tex.1992), S.W.2d 266 state court not must litigants go to the expense granting order denying a motion to of filings, two sets of reviewing courts compel arbitration under the go Federal Arbi- through process a two-fold of review (FAA) tration Act by just must be reviewed to determine the fundamental nature mandamus and by interlocutory not ap- jurisdiction, of their but there are hidden peal. Id. at 272. The court reasoned that in requiring filing risks of a mandamus although FAA provides itself cases, for inter- in FAA which this case illustrates. locutory review of orders on motions to Specifically, may the mandamus record be arbitration, Texas state pro- incomplete because, here, court as signed or- the mandamus or evidence resolve
der Angela EGGL, Appellant an petition, with the whereas is included interlocutory appeal simply be decid- could on the law. ed Nazir ARIEN and Sheltzad Moreover, appeal, unlike an review of Arien, Appellee. appeals required not
the court No. 05-06-00324-CV. its denial opinion explaining a written issue Tex.R.App. relief. Com/pare mandamus Texas, Appeals Court of (“When 52.8(d) an denying relief [in P. Dallas. may hand court original proceeding], the to do opinion required an but not down Dec. Tex.R.App.
so.”), (requiring 47.1 with every “that issue opinion addresses
written necessary disposition final
raised and Thus, only may the re- appeal”). not proceeding court a mandamus
viewing court’s to reach the of the trial
fail merits compelling denying FAA, required
under the is not even mandamus litigants their
tell record, or complete want of
failed for was not veri-
perhaps petition because
fied, than for a meritorious rather want of of the
argument inviting repetition —thus
error. writing years supreme
Like the Anglin, B. I “can conceive
ago Jack unnecessarily ex- from such an
no benefit rule,” I but rec- and cumbersome
pensive enlarge “may
ognize that courts jurisdiction legislative
appellate absent Therefore, at 273.
mandate.” 842 S.W.2d request supreme court’s
I second permit TAA to Legislature amend the *8 pur-
interlocutory appeals orders issued the FAA.
suant to Firm, Eaker, M. Eaker Law
David Appellant. Adams, Patrick Collins &
Timothy G. Westmoreland, Associates, Stacy Brad K. Dallas, Condor, Appellee. & BRIDGES, Before Justices FITZGERALD, and LANG.