                         NUMBER 13-10-00326-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI—EDINBURG

______________________________________________________________________

CHRISTUS HEALTH,                                                          Appellant,
                                          v.
ROSALINDA RAGSDALE,                                                       Appellee.


                   On appeal from the 319th District Court
                         of Nueces County, Texas
______________________________________________________________________


                         MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Rodriguez and Perkes
               Memorandum Opinion by Justice Perkes

      Rosalinda Ragsdale, Appellee (―Ragsdale‖) filed suit against CHRISTUS Spohn

Health System Corporation (―CHRISTUS Spohn‖) to recover for injuries she suffered

while working as a nurse at CHRISTUS Spohn Hospital Corpus Christi—Memorial.

During arbitration, CHRISTUS Health appeared, and stated there was a misnomer and

that it was the correct party. Based upon that and other representations, the arbitrator
entered an award in the sum of $348,843.00 in damages against CHRISTUS Health.1

The trial court confirmed the arbitration award. By one issue, CHRISTUS Health argues

that the trial court erred in granting Ragsdale’s motion to confirm the arbitration award.

We affirm.

                            I. FACTUAL AND PROCEDURAL BACKGROUND

        Ragsdale worked as a nurse at CHRISTUS Spohn Hospital Corpus Christi—

Memorial in Corpus Christi, Texas, where she sustained an on-the-job injury. On June

20, 2008, Ragsdale sued CHRISTUS Spohn in the trial court for her injuries. On July

24, 2008, CHRISTUS Spohn filed its original answer, subject to its motion to compel

arbitration. The parties subsequently agreed to arbitrate. On September 28, 2008, the

trial court granted the parties’ agreed motion to abate.2                 On June 4-5, 2009, an

evidentiary hearing was held in the arbitration.              During the arbitration, CHRISTUS

Health’s counsel stated that a ―misnomer‖ of CHRISTUS Health’s name existed, but that

it ―. . . makes no difference in terms of the coverage of the claim or anything at all . . .

and it has no bearing whatsoever on any of the substantive issues in the case here,‖

and that the parties would correct it by agreement.3 The parties thereafter entered into

a written stipulation which stated:


        1
          During arbitration, Ragsdale agreed to dismiss all of her claims against CHRISTUS Spohn,
based upon CHRISTUS Health’s representations that it was the proper party and substituting it for
CHRISTUS Spohn was inconsequential. Ragsdale’s ―Motion to Confirm Arbitration Award‖ is styled only
in the name of CHRISTUS Health and only seeks relief against CHRISTUS Health. CHRISTUS Spohn is
neither mentioned in the motion or the final judgment (order confirming award).
        2
           The motion generally sought abatement of the proceedings while the parties proceeded to
arbitration under the terms of the Texas Occupational Injury Assistance Plan (the Plan). The agreed order
states in pertinent part: ―IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that this case is
abated while the case proceeds to arbitration, as agreed to by the parties.‖
        3
           After the arbitrator’s award was entered, CHRISTUS Health began arguing that Ragsdale’s suit
against CHRISTUS Spohn instead of CHRISTUS Health was a misidentification instead of a misnomer,
and that it was not a party to the Nueces County proceeding.

                                                   2
        The parties acknowledge that the parties are not properly named under
        the current arbitration pleadings. Thus, the parties have agreed to
        stipulate that the properly named parties are Claimant, Rosalinda
        Ragsdale and Respondent, CHRISTUS Health. In so doing, the parties
        also agree that claims against the improperly named party, Respondent
        CHRISTUS Spohn Health System d/b/a CHRISTUS Spohn Hospital
        Corpus Christi—Shoreline, are dismissed with prejudice. The parties
        request that the Arbitrator take whatever steps are necessary to effectuate
        the proper naming of parties and the dismissal.4

        On September 16, 2009, the arbitrator entered an award in favor of Ragsdale

and against CHRISTUS Health in the amount of $343,843.00, plus costs. In its award,

the arbitrator stated:

        It is further ordered, pursuant to the agreed stipulation of the parties, that
        name of the Claimant is Rosalina [sic] Ragsdale and the correct name of
        the Respondent is CHRISTUS Health. Pursuant to the parties’ agreement
        the claims against the improperly named party, CHRISTUS Spohn Health
        Stytem [sic] d/b/a CHRISTUS Spohn Hospital Corpus Christi—Shoreline
        are dismissed with prejudice.

        On December 22, 2009, CHRISTUS Health, ignoring the Nueces County lawsuit,

filed a new lawsuit in Harris County, seeking to vacate the arbitration award. Ragsdale

challenged venue. On April 22, 2010, the Harris County district court issued an order

denying Ragsdale’s motion to transfer venue, but also stated:

        [a motion to transfer venue] is not the appropriate procedural motion under
        the facts and circumstances described by the parties in this case. The
        Court further finds that the proper procedural motion would instead be a
        plea in abatement. It is the Court’s intention to grant such a plea should it
        be later be [sic] requested by any party. This would permit the 319 th
        District Court of Nueces County, Texas, (in Cause Number 08-3021-G) to
        proceed regarding all matters concerning the arbitration made the basis of
        this suit.



        4
         During oral argument, CHRISTUS Health’s counsel stated that: ―I was present at the arbitration
along with another counsel . . . there is no question of authority. We’re not contesting the authority of
anyone. There were proper representatives at the arbitration. I do not disavow the statement nor do I
challenge the section of the record appellee has submitted ….‖


                                                   3
The Harris County district court subsequently abated CHRISTUS Health’s lawsuit based

upon an agreement of the parties.

        Meanwhile, on March 5, 2010, Ragsdale filed a motion to confirm the arbitration

award in the pending Nueces County lawsuit and obtained a May 17, 2010 hearing

date. On May 13, 2010, CHRISTUS Health filed a motion to transfer venue. On May

14, 2010, CHRISTUS Health filed a motion for continuance, and CHRISTUS Spohn filed

an objection to Ragsdale’s motion to confirm the arbitration award and, in the

alternative, motion to dismiss. On May 17, 2010, the trial court held a hearing and

entered an order confirming the arbitration award and final judgment.                        This appeal

followed.5

                                         II. ISSUE PRESENTED

        By a single issue, CHRISTUS Health argues the trial court erred by granting

Ragsdale’s motion to confirm the arbitration award. It asserts four sub-issues in support

of its argument: (1) whether the trial court had jurisdiction to enter a judgment against

CHRISTUS Health; (2) whether the trial court should have deferred to the Harris County

district court; (3) whether the trial court erred by refusing to grant a hearing on

CHRISTUS Health’s motion to transfer venue; and (4) whether the trial court abused its

discretion in denying CHRISTUS Health’s motion for continuance.




        5
          CHRISTUS Spohn did not file a notice of appeal and is not a party to this appeal. The trial
court’s order included language that ―This judgment is final, disposes of all claims and parties. All relief
requested that is not expressly granted is denied.‖ As such, the order effectively dismissed CHRISTUS
Spohn from this lawsuit. See Moritz v. Preiss, 121 S.W.3d 715, 718–19 (Tex. 2003); John v. Marshall
Health Servs., Inc., 58 S.W.3d 738, 740 (Tex. 2001) (presumption of finality).

                                                     4
                                             III. ANALYSIS

A.      Jurisdiction Over CHRISTUS Health

        In its first sub-issue, CHRISTUS Health argues that the trial court was without

jurisdiction to render a judgment against CHRISTUS Health because it was neither

named as a party nor served as a party in the Nueces County lawsuit. It further argues

that it is a separate corporation from CHRISTUS Spohn and that the two entities cannot

be legally interchanged, and that it was fundamental error for the trial court to render

judgment against a party not before it.

        To render a binding judgment, a court must have both subject matter jurisdiction

over the controversy and personal jurisdiction over the parties. See Spir Star AG v.

Kimich, 310 S.W.3d 868, 871 (Tex. 2010) (special appearance).6 Whether a court has

personal jurisdiction over a defendant is determined as a matter of law, which appellate

courts review de novo. Id. When, as here, a trial court does not issue findings of fact or

conclusions of law regarding its determination, we presume that all factual disputes

were resolved in favor of the trial court’s ruling. Id. at 872–73.

        Under the Federal Arbitration Act (―FAA‖), a state court can exercise jurisdiction

to confirm an arbitration award as long as doing so is consistent with the parties’

arbitration agreement. See 9 U.S.C.A. § 9 (2009); Palisades Acquisitions XVI, LLC v.

Chatman, 288 S.W.3d 552, 556 (Tex. App.—Houston [14th Dist.] 2009, no pet.). Here,

the parties do not contend confirmation in state court is inconsistent with their arbitration

agreement—they argue which state court was the proper forum for the confirmation

hearing. Under the FAA, a state court that exercised its jurisdiction to compel arbitration

        6
           CHRISTUS Health does not challenge subject matter jurisdiction, though it generally asserts the
trial court did not have jurisdiction over it. CHRISTUS Health has not filed a special appearance; a
special appearance is not available for a resident of this State. See TEX. R. CIV. P. 120a.

                                                    5
of a dispute under the FAA retains jurisdiction to confirm the arbitrator’s award in the

same dispute. See generally, Chatman, 288 S.W.3d at 555–56 (discussing scope of

state courts’ jurisdiction to confirm arbitration awards under the FAA); Credigy

Receivables, Inc. v. Mahinay, 288 S.W.3d 565, 567–68 (Tex. App.–Houston [14th Dist.]

2009, no pet.) (same); Lesser Towers, Inc. v. Roscoe-Ajax Constr. Co., 258 F. Supp.

1005, 1009–12 (S.D. Cal. 1966) (concluding provisions vesting jurisdiction in federal

court on filing of an application to confirm an arbitration award do not contemplate

situation wherein jurisdiction over the case vested in state court that considered and

ruled on initial proceedings).

       Here, the application to compel arbitration was filed in the Nueces County district

court where Ragsdale’s lawsuit was pending. The trial court compelled arbitration and

its abatement order only abated Ragsdale’s suit ―while the case proceeds to arbitration.‖

By the plain terms of the abatement order, the case was no longer abated once

arbitration was concluded.       Because the award which Ragsdale sought to confirm

involved the same dispute as the lawsuit she initially filed in Nueces County, and

because the motion to compel arbitration was made in the Nueces County district court,

it was proper for the trial court to confirm the arbitration award.

       To the extent CHRISTUS Health’s jurisdiction complaint is premised on

traditional notions of personal jurisdiction, we observe the following. After the arbitration

award was delivered, Ragsdale named CHRISTUS Health in her motion to confirm the

arbitration award. CHRISTUS Health thereafter filed both CHRISTUS Health’s motion

to transfer venue and its motion for continuance on [Ragsdale’s] motion to confirm

arbitration award in the trial court. No new service was required because CHRISTUS



                                              6
Health made a general appearance by filing motions in the trial court, and thereby

submitted itself to the personal jurisdiction of the trial court. See TEX. R. CIV. P. 121;

see also Smith v. Lippmann, 826 S.W.2d 137, 138 (Tex. 1992) (holding letter to court

constituted an answer); Torres v. Johnson, 91 S.W.3d 905, 910 (Tex. App.—Fort Worth

2002, no writ) (concluding party appeared in case by moving for summary judgment);

Fridl v. Cook, 908 S.W.2d 507, 515 (Tex. App.—El Paso 1995, writ dism’d w.o.j.)

(interpreting party’s moving to compel arbitration and stay litigation as a general

appearance). In addition, CHRISTUS Health’s attorney announced during the hearing

that he was appearing both on behalf of CHRISTUS Spohn and CHRISTUS Health at

the hearing on Ragsdale’s motion to confirm the arbitration award, and he thereafter

argued for and sought relief on behalf of CHRISTUS Health.                        When a defendant’s

attorney enters an appearance in open court, such appearance shall have the same

force and effect as if the citation had been duly issued and served as provided by law. 7

TEX. R. CIV. P. 120. Any defect in service is cured by a general appearance. See Baker

v. Monsanto Co., 111 S.W.3d 158, 160–61 (Tex. 2003). CHRISTUS Health’s first sub-

issue is overruled.

B. Dominant Jurisdiction

       In its second sub-issue, CHRISTUS Health argues that the Nueces County district

court erred in failing to defer to the case it filed in Harris County, which it considers the

        7
            Estoppel also should be noted with respect to the arbitration and confirmation proceedings. A
party cannot complain on appeal the trial court took a specific action the complaining party requested.
Tittizer v. Union Gas Corp., 171 S.W.3d 857, 862 (Tex. 2005). "The invited error doctrine applies to
situations where a party requests the court to make a specific ruling, then complains of that ruling on
appeal." In re Dep't of Family & Protective Servs., 273 S.W.3d 637, 646 (Tex. 2009). The principle is one
of estoppel in the interest of a sound administration of the laws whereby the regularity or even validity of
an act procured by one himself cannot be raised—not that the act is valid, for it may not be, and estoppel
does not make valid the thing complained of, but merely closes the mouth of the complainant.‖ Spence v.
State National Bank, 5 S.W.2d 754, 756 (Tex. 1928); Wackenhut Correctional Corp. v. De La Rosa, 305
S.W.3d 594, 624 (Tex. App.—Corpus Christi 2009, no pet.).

                                                     7
first filed matter. CHRISTUS Health argues that since it was not originally named as a

party in the Nueces County lawsuit, that the Harris County lawsuit it filed after the

arbitration proceedings was the first lawsuit to be filed and thus obtained dominant

jurisdiction. We disagree.

     Dominant jurisdiction excludes other courts from exercising jurisdiction over the

same case. Curtis v. Gibbs, 511 S.W.2d 263, 267 (Tex. 1997). The long-standing

Texas common law rule is that the first court to acquire jurisdiction over the subject

matter and the parties of a controversy has dominant jurisdiction over all other courts.

Joe Williamson Constr. Co. v. Raymondville Indep. Sch. Dist., 251 S.W.3d 800, 805

(Tex. App.—Corpus Christi 2008, no pet.) (citing Cleveland v. Ward, 285 S.W. 1063,

1070 (Tex. 1926) (applying dominant-jurisdiction rule in the arbitration context); see also

BHP Billiton Petroleum (Americas), Inc. v. Atlanta Offshore Ltd., 312 S.W.3d 813, 821

(Tex. App.—Houston [1st Dist.] 2009, orig. proceeding) (applying dominant-jurisdiction

rule in the arbitration context). Where jurisdiction has attached, the district court has the

power to permit the pleadings to be amended, new parties to be added, to determine all

essential questions, and to do anything with reference thereto authorized by law.

Williamson Construction Co., 251 S.W.3d at 805; San Miguel v. Bellows, 35 S.W.3d

702, 704 (Tex. App.—Corpus Christi 2000, pet. denied).

       The Nueces County district court had jurisdiction over both the subject matter

and the parties in this lawsuit, and thereby obtained dominant jurisdiction over this

matter. The record shows the Nueces County lawsuit was filed in the trial court on June

20, 2008, whereas the Harris County lawsuit was not filed until December 22, 2009.

The fact CHRISTUS Health was arguably not actually named in the Nueces County



                                             8
lawsuit until after CHRISTUS Health had filed its own lawsuit in Harris County is

irrelevant.   See Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex. 1988)

(explaining that for dominant jurisdiction to attach, it is not necessary that all parties be

included in the first action before the second is filed).       The question of dominant

jurisdiction is based upon whether the first court had jurisdiction over both the subject

matter and the parties in the first lawsuit. Upon that event, the court obtains dominant

jurisdiction over the matter, and the pleadings can be amended, new parties can be

added, and the court is authorized to determine all essential questions and perform any

act permitted by law. See id.

       In this case, the Nueces County and Harris County lawsuits involve the identical

subject matter—recovery of damages by Ragsdale for an injury sustained while working

as a nurse at CHRISTUS Spohn Hospital Corpus Christi—Memorial in Corpus Christi,

Texas. Further, CHRISTUS Health has not challenged the trial court’s jurisdiction over

CHRISTUS Spohn in this lawsuit. The fact that CHRISTUS Health was later added into

the lawsuit does not affect the trial court’s jurisdiction. We also note that principles of

equity estop CHRISTUS Health from disputing the trial court’s dominant jurisdiction in

this case because of its stipulation and representation in the arbitration proceeding that

changing the name of the party defendant made ―no difference‖ to ―anything at all.‖ See

Miles v. Ford Motor Co., 914 S.W.2d 135, 138 (Tex. 1995) (recognizing exception to

rule of dominant jurisdiction when a party engages in inequitable conduct that estops it

from asserting prior active jurisdiction).    CHRISTUS Health’s second sub-issue is

overruled.




                                             9
       C. Request for Hearing on Motion to Transfer Venue

       By its third sub-issue, CHRISTUS Health claims that the trial court erred in

refusing its request for a venue hearing prior to ruling on Ragsdale’s motion to confirm

the arbitration award. We disagree. We review a trial court’s denial of a request for a

hearing on a motion to transfer venue for an abuse of discretion. See Carlile v. RLS

Legal Solutions, Inc., 138 S.W.3d 403, 408 (Tex. App.—Houston [14th Dist.] 2004, no

pet.). At the end of the confirmation hearing, the following dialogue occurred as the trial

was working on its judgment:

       CHRISTUS Counsel:           Respectfully, Your Honor, if I could be allowed,
                                   just so there’s no question of preservation. We
                                   timely filed a motion for — to transfer venue
                                   prior to this hearing as a first filed. I’m not 100
                                   percent sure we filed a request for hearing on
                                   that motion, if I may be allowed here today to
                                   formally make that request for a hearing if that
                                   was not implicit in my argument, so that we
                                   have a record that we not only filed the motion
                                   but made a request for hearing before this
                                   judgment was signed.

       Court:                      All right. Sure.

                                       *****

       CHRISTUS Counsel:           And again, specifically for the record, my
                                   request for a hearing on my venue motion is
                                   also denied, Your Honor?

       Court:                      Yes . . . .

       In its motion to transfer venue, CHRISTUS Health states the motion is filed under

rule 86 of the Texas Rule of Civil Procedure. See TEX. R. CIV. P. 86. Assuming without

deciding rule 86 applies in this context, rule 87 provides ―[e]xcept on leave of court,

each party is entitled to at least 45 days notice of a hearing on the motion to transfer



                                                 10
[venue].‖ See Id. at R. 87. A party filing a venue motion has the burden to diligently

request a setting on the motion and to obtain a ruling prior to a trial on the merits. See

TEX. R. CIV. P. 87(1); Carlile, 138 S.W.3d at 408; Cliff Jones, Inc. v. Ledbetter, 896

S.W.2d 417, 418 (Tex. App.—Houston [1st Dist.] 1995, no writ); Whitworth v. Kuhn, 734

S.W.2d 108, 111 (Tex. App.—Austin 1987, no writ). A delay in obtaining a hearing can

provide a basis for the trial court to deny a venue motion. See Bristol v. Placid Oil Co.,

74 S.W.3d 156, 160 (Tex. App.—Amarillo 2002, no pet.).

        The record shows Ragsdale filed her motion to confirm on March 5, 2010.

CHRISTUS Health filed its motion to transfer venue at 4:29 p.m. on May 13, 2010, the

Thursday8 before the May 17th hearing on Ragsdale’s confirmation motion. Although

CHRISTUS Health states in its subsequent motion for a continuance that it requested a

hearing on is motion to transfer venue, neither the venue motion nor the appellate

record show any request for a hearing on the motion to transfer venue prior to the

confirmation hearing. Rather, the record shows CHRISTUS Health requested a hearing

on its motion to transfer venue at the end of the confirmation hearing as the trial court

was literally writing in missing information to complete its judgment in this case.9

       In light of CHRISTUS Health’s delay in requesting a venue hearing, we conclude

the trial court did not abuse its discretion in denying its request for a hearing on its

motion to transfer venue.         See Ledbetter, 896 S.W.2d at 418–19.               We overrule

appellant’s third sub-issue.


       8
         We hereby take judicial notice that May 13, 2010 was a Thursday and that, May 17, 2010, was
a Monday. See e.g., In re Baylor Med. Ctr. at Garland, 280 S.W.3d 227, 229 n.6 (Tex. 2008) (orig.
proceeding) (taking judicial notice sua sponte that trial judge had been replaced by election during
pendency of mandamus case).
       9
        CHRISTUS Spohn did not file a motion to transfer venue and never challenged venue in the
Nueces County lawsuit.

                                                11
      D. Motion for Continuance

      By its fourth sub-issue, CHRISTUS Health argues that the trial court abused its

discretion in denying its motion for continuance. We disagree. We review a trial court's

denial of a motion for continuance under an abuse-of-discretion standard.           See

Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 685 (Tex. 2002).

CHRISTUS Health’s motion for continuance was filed Friday, May 14, 2010, at 4:33

p.m. The confirmation hearing occurred on the following Monday, May 17, 2010, and

the record is silent concerning any request for a hearing on that motion.

      Texas courts applying the FAA follow Texas rather than federal procedure. See

In re Palacios, 221 S.W.3d 564, 565 (Tex. 2006) (orig. proceeding). Nevertheless, it is

important for federal and state law to be as consistent as possible, because federal and

state courts have concurrent jurisdiction to enforce the FAA. See id. Section 6 of the

FAA provides that an application to confirm an arbitration award shall be heard in the

manner and with the notice required for making and hearing a motion filed in a pending

civil action in district court. See 9 U.S.C. § 6. The purpose of this rule is to expedite

judicial handling of matters pertaining to arbitration. See Crossmark, Inc. v. Hazar, 124

S.W.3d 422, 430 (Tex. App.—Dallas 2004, pet. ref’d).

      CHRISTUS Health filed its motion for continuance under rule 251 of the Texas

Rules of Civil Procedure. See TEX. R. CIV. P. 251. Rule 251 provides a continuance

shall only be granted on ―sufficient cause supported by affidavit.‖ Id. Whether a party

delayed unreasonably in bringing its motion for continuance is a factor a reviewing court

may consider in determining whether a trial court abused its discretion in denying a

motion for continuance. Beutel v. Dallas County Flood Control Dist, No. 1, 916 S.W.2d



                                            12
685, 693 (Tex. App.—Waco 1996, writ denied) (holding trial court did not abuse its

discretion in denying motion for continuance filed one week before trial when motion

could have been brought several months earlier).

       CHRISTUS Health sought a continuance of the confirmation hearing on four

grounds: (1) CHRISTUS Health had not appeared in the Nueces County lawsuit prior to

filing its motion to transfer venue and therefore did not consider itself a party in the

Nueces County lawsuit; (2) CHRISTUS Health believed the Nueces County lawsuit was

still abated; (3) CHRISTUS Health desired a ruling on its motion to transfer venue prior

to the confirmation hearing; and (4) CHRISTUS Health’s suit in Harris County which it

claimed was first-filed was still pending, though an abatement order was forthcoming.

In the motion for continuance, CHRISTUS Health states that Ragsdale’s motion to

abate the Harris County proceeding was pending in Harris County district court and set

for hearing on June 11, 2010. The transcript of the confirmation hearing shows that by

the time of the confirmation hearing, the parties knew the case in Harris County would in

all likelihood be abated.

       Assuming without deciding rule 251 applies in this context, in light of

congressional intent that arbitration proceedings be expedited and that confirmation

hearings follow civil motions practice, we hold that under the facts of this case, the trial

court’s denial of CHRISTUS Health’s motion for a continuance was not an abuse of

discretion. See 9 U.S.C. § 6; Hazar, 124 S.W.3d at 430. As set forth above in this

opinion, each of CHRISTUS Health’s grounds for seeking a continuance lacks merit,

and its motion for continuance was filed on the eve of the confirmation hearing, when it




                                            13
could have been filed at least two months earlier. See TEX. R. CIV. P. 251; Beutel, 916

S.W.2d at 693. We overrule appellant’s fourth sub-issue.

                                     IV. CONCLUSION

       Having overruled CHRISTUS Health’s sole issue on appeal, including all sub-

issues, we affirm the trial court’s judgment.

                                                     ____________________________
                                                     Gregory T. Perkes
                                                     Justice


Delivered and filed the
31st day of August 2011.




                                                14
