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At a Glance:
Title:
Barnfield v. Tomaski
Date:
April 9, 1998
Citation:
01-96-01052-CV
Status:
Unpublished Opinion

Barnfield v. Tomaski

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

Ronald D. BARNFIELD, Appellant,

v.

J.W. TOMASKI and Service Enterprises, Inc. D/B/A Crown Services, Appellees.

No 01-96-01052-CV.

|

April 9, 1998.

On Appeal from the 80th District Court Harris County, Texas Trial Court Cause No. 95-43697.

OPINION

NUCHIA, Justice.

*1 The trial court ordered arbitration and dismissed appellant’s cause of action. Appellant filed this appeal and appellees filed a cross point for sanctions. We dismiss appellant’s appeal for want of jurisdiction. We also overrule appellee’s motion for sanctions.

BACKGROUND

Appellant Ronald D. Barnfield’s employer, Service Enterprises, Inc. d/b/a Crown Services (Crown) opted out of the Texas Workers’ Compensation Act. Crown requires its employees, as a part of their employment contract, to arbitrate any claim relating to their employment.

Barnfield was hired as a plumber’s helper by Crown, and as a part of his employment contract, entered into the arbitration agreement. While working for Crown, Barnfield was injured. Barnfield later sued Crown and Tomaski without complying with the arbitration agreement.

On January 29, 1996, the trial court determined that the arbitration agreement was valid and ordered arbitration. The trial court also ordered that Barnfield be allowed to select the arbitrator and that arbitration be completed within thirty days. On January 30, 1996, Crown and Tomaski moved for reconsideration of a portion of this order because the arbitration procedures the order stipulated did not comport with the procedures of the American Arbitration Association. On February 1, 1996, Barnfield moved the court to reconsider its ruling that the case be compelled to arbitration. On March 11, 1996, the trial court granted Crown and Tomaski’s motion for reconsideration regarding the selection of the arbitrator as well as the thirty day deadline. At the conclusion of the order, the trial court stated that “this civil action is hereby DISMISSED with prejudice.”

On April 16, 1996, the trial court entered another order granting Crown’s request for arbitration. In this order, the trial court ordered that the arbitration be conducted pursuant to “procedures of the American Arbitration Association so long as said procedures do not deny the plaintiff any rights or remedies available in a court of law; and that all common law rights and remedies available to plaintiff in this Court be made available to plaintiff in arbitration.”

Crown moved for reconsideration of the April 16, 1996 order, and on May 13, 1996 the trial court entered an order vacating the April 16, 1996 order. The new order compelled Barnfield’s case to arbitration, and it dismissed Barnfield’s case without prejudice.

Barnfield raises two points of error.

DISCUSSION

Barnfield’s Appeal

In both of his points of error, Barnfield contends that the arbitration agreement he signed is unenforceable, and that the trial court erred in compelling arbitration. We lack jurisdiction to address these points.

A trial court, absent a motion for new trial, only has plenary power for 30 days after a judgment is signed. Scott & White Memorial Hosp. v. Schexnider, 940 S.W.2d 594, 596 (Tex.1996). Because the trial court did not timely modify the March 11, 1996 order that dismissed the entire case with prejudice, the trial court lost its plenary power thirty days later. As a result, the subsequent orders were nullities, and this appeal was not timely filed.

*2 Barnfield argues in his supplemental briefs that he was not aware of the March 11, 1996 order, and therefore, the trial court’s plenary power did not expire for ninety days. See TEX.R. CIV. P. 306a(5). Nonetheless, Barnfield’s appeal would still be untimely since he did not file his affidavit of inability to pay costs until August 12, 1996, well beyond the June 10, 1996 deadline. The motion for new trial Barnfield filed on June 11, 1996 does not change this result since it was also filed outside the ninety day time period.

Barnfield also argues that his motion for reconsideration filed on February 1, 1996 made his appeal timely due to rule 306c would still not apply to this case.

The March 11, 1996 order vacated a portion of the January 29, 1996 order relating to how the arbitration would be performed and dismissed Barnfield’s case with prejudice. This order did not compel Barnfield’s case to arbitration because the previous order on January 29, 1996 already had done so. Barnfield’s motion for reconsideration solely “assailed” the compelling of his case to arbitration; Barnfield’s motion did not assail the dismissal of his case nor the vacation of the procedural requirements. Thus, rule 306(c) is inapplicable because Barnfield’s motion for reconsideration does not assail the order signed on March 11, 1996.

Barnfield makes the alternative argument that the trial court did not intend to enter the March 11, 1996 order. Barnfield argues that the docket sheet and the Justice Information Management System (JIMS) do not contain a notation of this order.

A docket sheet entry is not part of the official record of a case and cannot properly be used to modify or change the plain effect of the order actually signed by the trial court. Energo Int’l Corp., 722 S.W.2d at 151 n. 2).

*3 There is a signed order in the record before this Court and that order clearly prevails over the lack of a notation on the docket sheet or the JIMS. We dismiss Barnfield’s appeal for want of jurisdiction.

Motion for Sanctions

In appellee’s cross-point, they argue that appellant should be sanctioned because his appeal is frivolous. Because we find that appellant did not bring this appeal for the purpose of delay, we deny appellee’s motion for sanctions. TEX.R.APP. P. 84, 733-734 S.W.2d (Texas Cases) CVI (Tex.1987).3

We overrule appellee’s cross-point.

SMITH, JJ., concur.4

Footnotes

1

“Assail” means to attack forcefully or violently by nonphysical means (as with words) and to encounter or confront in order to prevail over. WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 130 (Phillip Babcock Gove, Ph.D., ed., G. & C. Merriam Co.1971) (unabridged).

2

Cf. Padilla v. LaFrance, 907 S.W.2d 454, 458 (Tex.1995) (where trial court denied appellant’s motion for summary judgment but granted that of appellee, appellant’s motion for reconsideration, which raised same grounds alleged in motion for summary judgment plus one additional ground was the equivalent of a motion to modify the judgment).

3

This appeal was perfected before the Texas Rules of Appellate Procedure were amended effective September 1, 1997. Therefore, we have applied the rules in effect at the time this appeal was perfected. See Final Approval of Revisions to the Texas Rules of Appellate Procedure, misc. docket No. 97-9134 ¶ 2, 748-749 S.W.2d (Texas Cases) XLII (Tex.1997).

4

The Honorable Jackson B. Smith, Jr., retired Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.

End of Document
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