
 
 



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.

 

O P I N I O N


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
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
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
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:
	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
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.

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
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
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
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
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,
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.
1. Other defendants in the Willacy County lawsuit include Villars Consulting Engineers, LTD., Lopez
Engineering Group, Inc., and Lopez & Lopez Architects, Inc.  They are not parties to this appeal.
2. We have taken judicial notice of our files from the related mandamus proceeding.  See In re: Joe
Williamson Construction Company, No. 13-06-440-CV, 2006 Tex. App. LEXIS 8321 (Tex. App.-Corpus Christi
Sept. 18, 2006, pet. denied) (mem. op.).  That file contains a copy of RISD's April 5, 2006 notice of non-suit
and the court's reinstatement order which the 107th District Court of Willacy County signed within its plenary
power on April 27, 2006, and filed of record on May 4, 2006.  We note this because a chronology provided
by JWCC 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 Limon Masonry, Inc., in Hidalgo
County.  These defendants, however, are not parties to this appeal.
4. We note that RISD's original petition filed in Hidalgo County does not appear in the record.
5. At the hearing, an unsigned copy of the Willacy County third amended petition was admitted as
plaintiff's Exhibit 1.  RISD's second amended petition filed in Hidalgo County, describing the suit as one arising
"from the construction of Raymondville High School and High School Athletic Center for Raymondville I.S.D,"
was also offered at the hearing.  It is unclear from the record whether this petition was admitted at the hearing,
although an unfile-stamped 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 documents on file, and the appellate
record contains a copy of the second amended petition, file stamped June 30, 2006.  Therefore, we conclude
the second amended original petition was before the court at the hearing.
6. The application filed two weeks later referenced JWCC's April 28, 2005 Willacy County petition that
alleged JWCC improperly constructed the Raymondville High School as well as two elementary schools.
7. This Court previously considered the petition for writ of mandamus filed by Joe Williamson
Construction Company concerning this issue.  See In re Williamson Construction, 2006 Tex. App. LEXIS
8321, at *1.  We denied the petition concluding that relator has not shown itself entitled to the relief sought. 
Id. (citing Tex. Civ. Prac. & Rem. Code Ann. § 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 temporary injunction)).
8. Alternately, RISD argues that JWCC exhibited an intent not to prosecute arbitration in the Willacy
County suit by failing to pursue arbitration for over ten months after the order compelling arbitration was
signed.  See Wyatt v. Shaw Plumbing, 760 S.W.2d 245, 248 (Tex. 1988) (providing exceptions to the rule
requiring mandatory abatement by the second court in a plea in abatement challenge).  Without more, see
Tex. R. App. P. 38.1(h), and because we determine below that dominant jurisdiction lies in Willacy County on
another basis, we are not persuaded by this argument.

RISD also argues that because the abatement order in the Willacy County court has no time limit or term for
abatement, 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.
9. In San Miguel v. Bellows, we concluded that "[o]ur disposition of the interlocutory appeal makes San
Miguel's application for writ of mandamus moot."  35 S.W.3d 702, 705 (Tex. App.-Corpus Christi 2000, pet.
denied).

