                             NUMBER 13-06-608-CV

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


JOE WILLIAMSON CONSTRUCTION COMPANY,                                        Appellant,

                                           v.

RAYMONDVILLE INDEPENDENT SCHOOL DISTRICT,                                   Appellee.


                  On appeal from the 139th District Court
                        of Hidalgo County, Texas.


                                  OPINION

    Before Chief Justice Valdez and Justices Rodriguez and Garza
                    Opinion by Justice Rodriguez

      This is an accelerated appeal from the issuance of a temporary injunction. See TEX .

R. APP. P. 28.1. Pursuant to two construction contracts, appellant, Joe Williamson

Construction Company (JWCC), acted as the general contractor on the construction of

three schools in Willacy County for appellee, Raymondville Independent School District

(RISD). The January 13, 1999 contract involved a project described as "renovations and
additions to the Raymondville High School"; the October 17, 1999 contract involved a

project described as "Pittman & L.C. Smith Elementary Schools." RISD subsequently filed

two lawsuits, one in Willacy County and one in Hidalgo County, against JWCC, among

others—lawsuits involving construction issues related to the contracts and schools. During

the course of the proceedings, the 139th District Court of Hidalgo County granted a

temporary injunction enjoining JWCC from complying with an order of arbitration that had

been issued earlier by the 107th District Court of Willacy County. JWCC appeals the

granting of the temporary injunction.

        By three issues, JWCC contends that the 139th District Court of Hidalgo County,

Texas, abused its discretion when it issued a temporary injunction because the 107th

District Court of Willacy County, Texas, has dominant jurisdiction, and alternately, that

RISD failed to prove that it would suffer an imminent and irreparable injury if the injunction

did not issue and that it had no adequate remedy at law. We vacate the temporary

injunction and dismiss the Hidalgo County lawsuit. See TEX . R. APP. P. 43.2(e).

                                           I. Background

        On April 28, 2005, RISD filed its original petition in Willacy County alleging that the

suit arose "from the acquisition, design, and construction of Raymondville High School, and

two elementary schools."1 JWCC filed an application for arbitration, and on August 15,

2005, the 107th District Court of Willacy County granted the application and ordered the

parties to arbitrate "[a]ll disputes between . . . [RISD] and [JWCC] arising out of and related




        1
        Other defendants in the W illacy County lawsuit include Villars Consulting Engineers, LTD., Lopez
Engineering Group, Inc., and Lopez & Lopez Architects, Inc. They are not parties to this appeal.

                                                   2
to the two construction contracts." The 107th District Court of Willacy County also abated

the proceedings pending the outcome of the arbitration.

        On April 5, 2006, approximately eight months after arbitration was ordered, RISD

filed a notice of non-suit in Willacy County. No order granting the non-suit appears in the

record, and on April 27, 2006, the 107th District Court of Willacy County signed an order

setting aside the non-suit and reinstating the case. The order was filed on May 4, 2006.2

        Notwithstanding the Willacy County lawsuit, RISD filed a second suit in Hidalgo

County.3 RISD's first amended petition, filed on April 19, 2006, provided that the Hidalgo

County suit arose "from the acquisition, design and construction of a new school and

gymnasium from Raymondville I.S.D."4 On June 22, 2006, the American Arbitration

Association sent a letter to the parties in the Willacy County lawsuit regarding arbitration

procedures and rules. That same day, RISD filed an application for an emergency

temporary restraining order requesting that the 139th District Court of Hidalgo County

enjoin JWCC from including in its arbitration application in Willacy County the projects

involved in the Hidalgo County litigation. On June 23, 2006, the 139th District Court of

Hidalgo County granted RISD's application.                    RISD filed its Hidalgo County second

amended original petition on June 30, 2006, alleging that the suit arose "from the


        2
          W e have taken judicial notice of our files from the related m andam us proceeding. See In re: Joe
W illiamson Construction Company, No. 13-06-440-CV, 2006 Tex. App. LEXIS 8321 (Tex. App.–Corpus Christi
Sept. 18, 2006, pet. denied) (m em . op.). That file contains a copy of RISD's April 5, 2006 notice of non-suit
and the court's reinstatem ent order which the 107th District Court of W illacy County signed within its plenary
power on April 27, 2006, and filed of record on May 4, 2006. W e note this because a chronology provided
by JW CC in its brief recites that the case was reinstated on May 24, 2006.

        3
        RISD filed suit in Hidalgo County against Magic Valley Roofing and Lim on Masonry, Inc., in Hidalgo
County. These defendants, however, are not parties to this appeal.

        4
            W e note that RISD's original petition filed in Hidalgo County does not appear in the record.

                                                        3
construction of Raymondville High School and High School Athletic Center for

Raymondville I.S.D. . . ."           RISD's motion to convert the Hidalgo County temporary

restraining order to a temporary injunction and JWCC's motion to dissolve the temporary

restraining order were heard on July 6, 2006.

        At the July 6 hearing, the 139th District Court of Hidalgo County admitted copies of

the following petitions into evidence: (1) RISD's original petition filed in Willacy County on

April 28, 2005, describing the suit as arising "from the acquisition, design, and construction

of Raymondville High School, and two elementary schools"; (2) RISD's April 19, 2006 first

amended petition filed in Hidalgo County stating that suit as arising "from the acquisition,

design and construction of a new school and gymnasium from Raymondville I.S.D"; and,

(3) RISD's undated and unsigned third amended petition in the Willacy County action

setting out that the "suit arises from the acquisition, design and construction of Pitman

Elementary and L.C. Smith Elementary [Schools]."5 Other documents admitted as exhibits

at the hearing included the following: (1) JWCC's Willacy County application to compel

arbitration and motion to abate the proceedings pending arbitration filed June 10, 2005,

with contracts between RISD and JWCC attached;6 (2) the 107th District Court of Willacy

County's August 15, 2005 order granting JWCC's arbitration application and abatement



        5
           At the hearing, an unsigned copy of the W illacy County third am ended petition was adm itted as
plaintiff's Exhibit 1. RISD's second am ended petition filed in Hidalgo County, describing the suit as one arising
"from the construction of Raym ondville High School and High School Athletic Center for Raym ondville I.S.D,"
was also offered at the hearing. It is unclear from the record whether this petition was adm itted at the hearing,
although an unfile-stam ped copy is attached to the reporter's record as plaintiff's Exhibit 2. The 139th District
Court of Hidalgo County did indicate that it took judicial notice of all docum ents on file, and the appellate
record contains a copy of the second am ended petition, file stam ped June 30, 2006. Therefore, we conclude
the second am ended original petition was before the court at the hearing.

        6
         The application filed two weeks later referenced JW CC's April 28, 2005 W illacy County petition that
alleged JW CC im properly constructed the Raym ondville High School as well as two elem entary schools.

                                                        4
motion; (3) RISD's Hidalgo County application for an emergency temporary restraining

order and a temporary and a permanent injunction dated June 22, 2006; (4) letters dated

June 22, 2006, and June 30, 2006, from the American Arbitration Association addressed

to counsel for RISD and counsel for JWCC regarding the arbitration procedure; and (5) an

online filing demand for arbitration form acknowledging receipt of demand/submission for

arbitration on June 15, 2006. The trial court also took judicial notice of all documents on

file.

        At the hearing, JWCC called Sam Loya, president of RISD, as a witness. On direct

examination, Loya testified, in relevant part, as follows:

        The January 18, 1999 contract between RISD and JWCC identified the
        project as "renovating and additions to the Raymondville High School, One
        Bearkat Boulevard, Raymondville, Texas";

        The October 27, 1999 contract between RISD and JWCC involved the
        "construction of Pittman and L.C. Smith elementary schools";

        The [April 28, 2005] original petition filed in Willacy County set out that "[t]his
        suit arises from acquisition, design, and construction of Raymondville High
        School and two elementary schools [Pittman and L.C. Smith]";

        The August 15, 2005 order of the Willacy County District Court ordered RISD
        and JWCC to go to arbitration on the two contracts; and,

        The lawsuit in Hidalgo County between RISD and JWCC and others
        provided, in the [April 19, 2006] first amended original petition that "[t]his suit
        arises from the acquisition, design and construction of a new school and
        gymnasium for the Raymondville ISD."

Loya agreed that, from what he read in the petitions, the suits in the two counties covered

the same thing.

        On cross-examination by RISD's counsel, Loya testified, in relevant part, to the

following:


                                                5
       The Willacy County third amended petition provided that "[t]his suit arises
       from the acquisition, design and construction of Pittman Elementary and L.C.
       Smith Elementary";

       He agreed that the language of the Hidalgo County first amended original
       petition—"[t]his suit arises from the acquisition, design and construction of
       the new school and gymnasium for the Raymondville ISD"—was not clear as
       to what school (the high school, L.C. Smith or Pittman) RISD was talking
       about; and,

       The Hidalgo County second amended original petition [filed on June 30,
       2006,] provides that "[t]his suit arises from the construction of Raymondville
       High School and high school athletic center for Raymondville ISD," and there
       is no mention of the elementary school.

       RISD called Eloy Castaneda, superintendent for the Raymondville schools, as a

rebuttal witness. Castaneda testified as follows:

       He was aware that a lawsuit was filed in Hidalgo County involving a high
       school and the athletic complex at Raymondville and that an application for
       arbitration had been filed asking to arbitrate the claims the district is making
       for the high school and the athletic complex;

       He was familiar with the problems the district was having with the high school
       and the athletic complex with regard to construction, including (1) water
       running into the gymnasium, (2) floors warping, (2) water
       accumulating—three or four inches—between the high school and the
       gymnasium, (3) floors in the main building cracking and
       separating–separating one wing from the other, (4) the roof leaking in the
       cafeteria where they are constantly replacing ceiling tiles, (5) unbearable
       smells from the drains in the cafeteria, and (7) water coming in through the
       library walls damaging some of the books;

       He did not feel that a five-year-old building should have these problems; and,

       To his knowledge, the only two projects that JWCC has done for [RISD] are
       the Raymondville High School, the January 1999 contract, and the Pittman
       and Smith Elementary School, the October 1999 contract.

       On July 17, 2006, the 139th District Court of Hidalgo County issued an order

enjoining JWCC from seeking arbitration on the legal or factual issues raised in the Hidalgo

County lawsuit, including alleged construction defects, liability, and damages.           This

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interlocutory appeal from the temporary injunction ensued.7 See TEX . CIV. PRAC . & REM .

CODE ANN . § 51.014(a)(4) (Vernon Supp. 2007).

                                          II. Dominant Jurisdiction

         By its first issue, JWCC contends that the 139th District Court of Hidalgo County

abused its discretion when it issued a temporary injunction enjoining JWCC from complying

with an order of arbitration issued by the 107th District Court of Willacy County, the court

that has dominant jurisdiction over this matter. In response, RISD asserts that the

temporary injunction does not interfere with the arbitration order because both suits involve

separate and distinct claims and dominant jurisdiction lies in Hidalgo County where the

court ruled on jurisdiction and resolved the issue in favor of RISD.8

                                           A. Standard of Review

         Appellate review of an order granting or denying a temporary injunction is
         strictly limited to a determination of whether there has been a clear abuse of
         discretion by the trial court in granting or denying the interlocutory order. On
         appeal, the appellate court is not to substitute its judgment for that of the trial
         court, but must determine whether the trial court's action was so arbitrary as
         to exceed the bounds of reasonable discretion.


         7
           This Court previously considered the petition for writ of m andam us filed by Joe W illiam son
Construction Com pany concerning this issue. See In re W illiamson Construction, 2006 Tex. App. LEXIS
8321, at *1. W e denied the petition concluding that relator has not shown itself entitled to the relief sought.
Id. (citing T EX . C IV . P RAC . & R EM . C OD E A N N . § 51.014(a)(4) (Vernon Supp. 2007) (providing that an appeal
can be taken from an interlocutory order of a district court that grants a tem porary injunction)).

         8
           Alternately, RISD argues that JW CC exhibited an intent not to prosecute arbitration in the W illacy
County suit by failing to pursue arbitration for over ten m onths after the order com pelling arbitration was
signed. See W yatt v. Shaw Plumbing, 760 S.W .2d 245, 248 (Tex. 1988) (providing exceptions to the rule
requiring m andatory abatem ent by the second court in a plea in abatem ent challenge). W ithout m ore, see
T EX . R. A PP . P. 38.1(h), and because we determ ine below that dom inant jurisdiction lies in W illacy County on
another basis, we are not persuaded by this argum ent.

RISD also argues that because the abatem ent order in the W illacy County court has no tim e lim it or term for
abatem ent, it violates the open courts provision of the Texas Constitution. See Trapnell v. Hunter, 785
S.W .2d 426, 429 (Tex. App.–Corpus Christi 1990, orig. proceeding) (concluding that abating a case
indefinitely has been found to violate the open courts provisions). This, however, is a challenge to the 107th
District Court's arbitration order and is not properly before this Court in this proceeding.

                                                          7
Haq v. America's Favorite Chicken Co., 921 S.W.2d 728, 730-31 (Tex. App.–Corpus Christi

1996, writ dism'd w.o.j.) (citations omitted). A clear failure by the trial court to analyze or

apply the law correctly will constitute an abuse of discretion. Walker v. Packer, 827

S.W.2d 833, 839 (Tex. 1992). A trial court abuses its discretion when it issues an

injunction that interferes with the orders of the court of dominant jurisdiction. See San

Miguel v. Bellows, 35 S.W.3d 702, 705 (Tex. App.–Corpus Christi 2000, pet. denied).

                                      B. Applicable Law

       "The long-standing common law rule in Texas 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." Id. at 704 (citing Cleveland v. Ward, 285 S.W. 1063,

1070 (Tex. 1926)); see Curtis v. Gibbs, 511 S.W.2d 263, 267 (Tex. 1997). "Where

jurisdiction of a district court has attached, it has the power to permit pleadings to be

amended, new parties to be made, to determine all essential questions, and to do anything

with reference thereto authorized by law." San Miguel, 35 S.W.3d at 704 (citing Cleveland,

286 S.W. at 1069). Dominant jurisdiction excludes other courts from exercising jurisdiction

over the same case. Curtis, 511 S.W.2d at 267; San Miguel, 35 S.W.3d at 704.

       A non-suit is effective as soon as the plaintiff files a motion for non-suit. See

Greensberg v. Brookshire, 640 S.W.2d 870, 872 (Tex. 1982) (per curiam). However, while

the plaintiff has an absolute and unqualified right to file a non-suit, it can only do so as long

as the defendant has not made a claim for affirmative relief. See BHP Petroleum Co. v.

Millard, 800 S.W.2d 838, 840 (Tex. 1990); Quanto Int'l Co., Inc. v. Lloyd, 897 S.W.2d 482,

487 (Tex. App.–Houston [1st Dist.] 1995, orig. proceeding) (holding that Quanto's non-suit



                                               8
could not prejudice the defendants' right to be heard on their pending claim for affirmative

relief (the request for arbitration)). Thus, a non-suit does not affect affirmative relief such

as a request for arbitration or, in this case, court-ordered arbitration. See Hagberg v. City

of Pasadena, 224 S.W.3d 477, 483 (Tex. App.–Houston [1st Dist.] 2007, no pet.). That

affirmative relief remains pending after a non-suit by the opposing party is filed. See Dean

Foods Co. v. Anderson, 178 S.W.3d 449, 453 (Tex. App.–Amarillo 2005, pet. denied)

(holding that pleading requesting attorney's fees constituted a claim for affirmative relief

that remained pending after opposing party's non-suit); see also TEX . R. CIV. P. 162 ("A

dismissal under this rule shall have no effect on any motion for sanctions, attorney's fees

or other costs, pending at the time of dismissal, as determined by the court."); Lentino v.

Frost Nat'l Bank, 159 S.W.3d 651, 654 (Tex. App.–Houston [14th Dist.] 2003, no pet.)

(providing "where another party has a claim pending for affirmative relief, a non-suit does

not bring about a dismissal of the entire case").

                                         C. Analysis

       The record reveals that in April 2005, RISD filed a lawsuit in Willacy County, alleging

that the suit arose "from the acquisition, design, and construction of Raymondville High

School, and two elementary schools." This was the live pleading when JWCC's application

for arbitration was granted on August 15, 2005. The 107th District Court of Willacy County

ordered arbitration of all disputes between RISD and JWCC arising out of and related to

the two construction contracts—one pertaining to renovations and additions to the

Raymondville High School, the second pertaining to the two elementary schools. Although

RISD filed a notice of non-suit, the 107th District Court of Willacy County reinstated RISD's



                                              9
lawsuit, never losing power over the suit, and the affirmative claims of arbitration survived.

See BHP Petroleum, 800 S.W.2d at 840; Quanto Int'l, 897 S.W.2d at 487.

       RISD's amended petition filed in Hidalgo County on April 19, 2006, approximately

eight months after arbitration was ordered by the 107th District Court of Willacy County,

set out that the suit arose "from the acquisition, design and construction of a new school

and gymnasium for [RISD]." It is undisputed that this is one of the school projects ordered

to arbitration by the 107th District Court of Willacy County.

       In addition, Loya testified that the two elementary schools referred to in the Willacy

County lawsuit were Pittman and L.C. Smith Elementary Schools. He also testified that,

to his understanding of the pleadings, the suit in Hidalgo County involved the same thing

covered by the suit in the Willacy County District Court—two construction contracts

between JWCC and RISD involving two elementary schools and the Raymondville High

School. On cross-examination, Loya admitted it was unclear from RISD's pleadings as to

which of the three schools, Raymondville High School, L.C. Smith, or Pittman Elementary,

were involved.    Additionally, Castaneda testified that the only two projects, to his

knowledge, that JWCC had done for RISD were covered by the Raymondville High School

and Pittman and Smith Elementary Schools contracts.

       Based on the above, we conclude that the 107th District Court of Willacy County

was the first court to acquire jurisdiction over the subject matter and the parties of the

controversy and that it maintained such jurisdiction. See San Miguel, 35 S.W.3d at 704;

Curtis, 511 S.W.2d at 267. The 107th District Court of Willacy County, where jurisdiction

attached, had the power to determine all essential questions and to do anything with

reference thereto authorized by law. See San Miguel, 35 S.W.3d at 704. The 107th

                                             10
District Court of Willacy County had dominant jurisdiction which excluded the 139th District

Court of Hidalgo County from exercising jurisdiction over the same case. See Curtis, 511

S.W.2d at 267; San Miguel, 35 S.W.3d at 704.

       Nonetheless, the Hidalgo County District Court issued an injunction preventing the

parties from complying with the arbitration order issued by 107th District Court of Willacy

County. The 139th District Court of Hidalgo County interfered with a prior action in a court

with dominant jurisdiction. See Curtis, 511 S.W.2d at 267; San Miguel, 35 S.W.3d at 704.

       San Miguel is precedent for this Court. In that case, we held that the district court

in Live Oak County abused its discretion when it enjoined a party from complying with the

rulings of the court with dominant jurisdiction. 35 S.W.3d at 705. In San Miguel, as in the

present case, the district court where the lawsuit was first filed had dominant jurisdiction

over the matter in controversy and the parties involved. Id. at 704-05. In San Miguel, as

in this case, a party sought injunctive relief from a second district court after suffering an

adverse ruling in the district court where the case was first filed. Id. at 703-04. The

defendant in San Miguel lost the trial; here, RISD was ordered to arbitration. Id. at 703.

In both cases, the losing party obtained an injunction in a second district court in another

county, seeking to avoid the application of the adverse ruling issued by the court of

dominant jurisdiction. Id. at 704. In San Miguel, the defendants could have appealed the

jurisdiction and ruling of the Harris County District Court to the Houston courts of appeals.

Id. at 705. In the case now before this Court, the arbitration ruling could have been

challenged by RISD by seeking relief from this Court. In San Miguel, this Court recognized




                                             11
that the second court abused its discretion when it enjoined a party from complying with

the rulings of the court of dominant jurisdiction. Id.

        RISD attempts to distinguish San Miguel by highlighting the fact that San Miguel was

complaining, by way of mandamus, of the trial court's ruling denying a plea in abatement

and, by way of appeal, of the trial court's grant of a temporary injunction. Id. at 704. RISD

appears to suggest that by filing a plea in abatement San Miguel preserved her arguments

regarding dominant jurisdiction, while in the present case JWCC did not file a plea in

abatement and, thus, failed to preserve its argument regarding dominant jurisdiction. We

disagree.

        Preservation was not addressed in San Miguel. In fact, our analysis in the San

Miguel appeal was not based on the trial court's denial of the pleas and motions that

formed the basis of the mandamus proceeding.9 See id. Rather, our analysis of the

appeal focused on the trial court's granting of the temporary injunction and how its actions

impacted the jurisdiction of another district court that had dominant jurisdiction in that case.

Id. at 704-05. Our analysis in the present case again focuses on the granting of a

temporary injunction.

        Additionally, RISD contends that the question of dominant jurisdiction has not been

preserved because JWCC did not seek an order of abatement in the 139th District Court

of Hidalgo County. The cases relied on by RISD for this proposition, however, do not

involve reviews of temporary injunctions. See Mower v. Boyer, 811 S.W.2d 560, 563 (Tex.

1991) (citing Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 247-48 (Tex. 1988); Curtis,


         9
          In San Miguel v. Bellows, we concluded that "[o]ur disposition of the interlocutory appeal m akes San
Miguel's application for writ of m andam us m oot." 35 S.W .3d 702, 705 (Tex. App.–Corpus Christi 2000, pet.
denied).

                                                     12
511 S.W.2d at 267; Estate of Maxey, 559 S.W.2d 458, 460-61 (Tex. Civ. App.–Texarkana

1977, writ ref'd n.r.e.)). And, as discussed above, the present case involves JWCC's

challenge to the issuance of a temporary injunction by the 139th District Court of Hidalgo

County, and so our review is to determine whether the trial court abused its discretion in

granting the injunction. Whether or not a dilatory plea in abatement was filed is not

determinative in this case. See Curtis, 511 S.W.2d at 267 ("If the second court refuses to

sustain a plea in abatement, or attempts to interfere with the prior action, this court has the

power to act by mandamus or other appropriate writ to settle the conflict in jurisdiction.")

(emphasis added)).

       Not being persuaded by RISD's attempt to distinguish San Miguel from this case or

its preservation argument, we conclude that the 139th District Court of Hidalgo County

abused its discretion when it exercised jurisdiction over the case by issuing the temporary

injunction. We sustain JWCC's first issue.

       Furthermore, having sustained JWCC's first issue, we need not consider the

remaining issues because they are not "necessary to the final disposition of the appeal."

See TEX . R. APP. P. 47.1.

                                       III. Conclusion

       Accordingly, we order the temporary injunction vacated and the Hidalgo County

lawsuit dismissed.


                                                     NELDA V. RODRIGUEZ
                                                     Justice

Opinion delivered and filed this
13th day of March, 2008.



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