in Re: Mark DeMattia ( 2021 )

Denied and Opinion Filed November 23, 2021
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00460-CV
IN RE MARK DEMATTIA, Relator
Original Proceeding from the 471st Judicial District Court
Collin County, Texas
Trial Court Cause No. 471-04107-2020
MEMORANDUM OPINION
Before Justices Schenck, Nowell, and Garcia
Opinion by Justice Nowell
Before the Court is relator Mark DeMattia’s petition for writ of mandamus
contending the trial court abused its discretion by denying his motion for summary
judgment seeking advancement of his legal expenses to defend himself in the
underlying proceedings. The trial court did not rule on the motion at the summary
judgment hearing, and the mandamus record does not include an order signed by the
trial judge denying the relief the relator requested. Instead, relator relies on a docket
sheet entry that reads, “Def/Counter-PI’s MSJ is DENIED; parties requested to e-
file proposed written order.”
A docket entry forms no part of the record which may be considered; it is a
memorandum made for the trial court and clerk’s convenience.” Energo Intern.
Corp. v. Modern Indus. Heating, Inc., 722 S.W.2d 149, 151 (Tex. App—Dallas
1986, no writ). As this Court has previously noted, “[d]ocket sheet entries are
inherently unreliable because they lack the formality of orders and
judgments.” Bailey–Mason v. Mason, 122 S.W.3d 894, 897 (Tex. App—Dallas
2003, pet. denied). For that reason, a docket sheet entry standing alone typically
cannot constitute a judgment or decree of a court. Id. For a docket sheet to constitute
an order of the court, there must be some indication in the record that the trial judge
did not intend to enter a formal order but instead intended to rely on the docket entry
as the sole judgment or decree of the court. Id. Such circumstances might be present
where the trial court announces its decision in open court while calling the attention
of the parties to the docket entry or formally files the docket entry with the clerk as
the trial court’s judgment. See id. (citing Formby’s KOA v. BHP Water Supply
Corp., 730 S.W.2d 428, 430 (Tex. App—Dallas 1987, no writ)); see also Garza v.
Texas Alcoholic Beverage Com’n, 89 S.W.3d 1, 7 (Tex. 2002) (district court’s
initialed, hand-written entry on docket sheet reciting the substance of the court’s
final order was not a judgment in absence of evidence that court had publicly
announced its decision, issued a memorandum or otherwise publicly announced
rendition on that date).
Here, there is no indication that the docket sheet entry was intended to
constitute the final disposition of relator’s motion for summary judgment. To the
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contrary, the docket sheet entry indicates that the parties were instructed to submit a
proposed order for the trial court’s consideration. Under these circumstances, it is
not reasonable to conclude the trial court intended the notation to constitute the sole,
final embodiment of an order denying the motion.
Because the mandamus record does not include a copy of the trial court’s
order by which it determined relator’s motion, relator has not established his right to
relief. We deny relator’s petition for writ of mandamus without prejudice to refiling
a petition with an adequate record. See TEX. R. APP. P. 52.3(k) (1)(A); 52.8(a).
/Erin A. Nowell//
210460f.p05 ERIN A. NOWELL
JUSTICE
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