CONDITIONALLY GRANT and Opinion Filed February 6, 2019
Court of Appeals
S In The
Fifth District of Texas at Dallas
No. 05-18-00975-CV
IN RE THE BIG 12 CONFERENCE, INC., Relator
Original Proceeding from the County Court at Law No. 1
Dallas County, Texas
Trial Court Cause No. CC-18-00585-A
MEMORANDUM OPINION
Before Justices Bridges and Brown1
Opinion by Justice Bridges
On January 25, 2019, the Texas Supreme Court issued In re Houston Specialty Insurance
Co., No. 17-1060, 2019 WL 321152 (Tex. Jan. 25, 2019) (orig. proceeding) (per curiam). In light
of that opinion and on the Court’s own motion, we withdraw our December 21, 2018 opinion and
issue this substitute memorandum opinion. This is now the opinion of the Court.
This original proceeding involves a question of dominant jurisdiction in which two parallel
proceedings are pending in two courts of concurrent jurisdiction. We are asked to decide whether
the trial court abused its discretion by denying relator’s plea in abatement.
Texas Christian University (TCU), its Board of Trustees, and various members of the
athletic department filed a separate original petition involving the same underlying facts as the
present original petition. See In re Tex. Christian Univ., No. 05-18-00967-CV (Tex. App.—Dallas,
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Justice Boatright was on the original panel; however, as of January 1, 2019, he is no longer a justice on the Court and did not participate in
deciding this substitute opinion. See TEX. R. APP. P. 41.1(b).
Feb. 6, 2019, orig. proceeding). For the reasons we conditionally granted TCU’s original petition,
we likewise conclude the first-filed rule applies here without exception and conditionally grant
relator’s petition.
Further, to the extent Kolby Listenbee, the real party in interest, argues relator does not
have standing, his argument is misplaced. Listenbee argues relator “does not have standing to
complain that the trial court did not abate the underlying case in favor of another suit in another
county to which relator is not a party.” Listenbee’s argument conflates the issue of standing with
relator’s procedural right to file a plea in abatement challenging dominant jurisdiction. “In Texas,
the standing doctrine requires a concrete injury to the plaintiff and a real controversy between the
parties that will be resolved by the court.” Heckman v. Williamson Cty., 369 S.W.3d 137, 154
(Tex. 2012) (emphasis added). Relator is not a plaintiff in the underlying suit. Moreover,
Listenbee’s argument runs afoul of the well-settled principle that for two suits to be inherently
related, such that the first-filed rule applies, “it is not required that the exact issues and all the
parties be included in the first action before the second is filed.” Wyatt v. Shaw Plumbing Co., 760
S.W.2d 245, 248 (Tex. 1988). It is undisputed relator is not a party to the first-filed case in Tarrant
County; however, that does not foreclose the Tarrant County lawsuit and the Dallas County
lawsuit, to which relator is a party, from being interrelated. Moreover, the proper procedural
vehicle for relator to bring to the trial court’s attention the first-filed case in Tarrant County is
through a plea in abatement.
We conditionally grant relator’s petition. On January 3, 2019, the trial court complied with
our December 21, 2018 order by issuing an order vacating its July 23, 2018 order denying relator’s
plea in abatement, granting the plea in abatement, and abating the case.
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The underlying proceeding remains abated pending outcome of the Tarrant County lawsuit.
/David L. Bridges/
DAVID L. BRIDGES
JUSTICE
180975F.P05
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