dissenting.
I agree wholeheartedly with the court’s articulation of the rule of dominant jurisdiction. We do not disagree on the law; we disagree on its application to this cause.
Unquestionably, the general rule is that the court in which suit is first filed acquires dominant jurisdiction and that any subsequent suit involving the same parties and the same controversy must be dismissed if, by a plea in abatement, a party calls the court’s attention to the pendency of the prior suit. Curtis v. Gibbs, 511 S.W.2d 263 (Tex.1974), Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063 (1926). I would not in any way abandon this general rule.
However, an exception to this general rule has long been recognized. If the court in which suit is first filed cannot properly dispose of the whole subject matter of the litigation as to all necessary parties and issues, then the second court’s ruling on any plea in abatement asserted there is a discretionary matter. See Cleveland v. Ward, 285 S.W. at 1070; see also Dolenz v. Continental National Bank of Fort Worth, 620 S.W.2d 572 (Tex.1981); First State Bank of Bishop, Texas v. Norris, 611 S.W.2d 680 (Tex.Civ.App.—Tyler 1980, writ ref’d n.r.e.). The court’s opinion today still pays lip service to this exception when it states:
It is not required that the exact issues and all the parties be included in the first action before the second is filed, provided that the claim in the first suit may be amended to bring in all necessary and proper parties and issues.
760 S.W.2d at 247 (emphasis added). The problem is that the court ignores its own “provided that” language and refuses to recognize that Shaw Plumbing could not have joined Spear in the Duval County suit.
The venue laws effective at the time of this suit protected a party from being brought into a suit as a third-party defendant if venue was not proper as to that party independent of the main action.1 See Union Bus Lines v. Byrd, 142 Tex. 257, 177 S.W.2d 774, 776 (1944). Shaw Plumbing’s claim against Spear is based on an oral contract. As such, the only proper place of venue for Shaw Plumbing’s cause of action against Spear was Spear’s county of residence, Nueces County. See former Tex.Rev.Civ.Stat. art. 1995 [3 West’s Tex. Stats, and Codes (1974 and 1977- Supp.)]. Therefore, because venue in Duval County was not proper as to Spear independent of the main action, Spear could not have been brought in as a third-party defendant, and thus the Duval County court would not have been able to dispose of all necessary parties and issues in the case.
The court offers two reasons for its conclusion that Spear could have been joined in Duval County. First, it assumes that Spear was Wyatt’s agent and suggests that somehow this fact resolves the venue problem. However, the question of whether Spear was Wyatt’s agent or an independent contractor was hotly contested. The jury in the Nueces County suit did find that Spear was Wyatt’s agent, but this court’s decision will result in the lawsuit being tried again in Duval County where the le*250gal relationship between Spear and Wyatt will be determined anew. To this date, even in his briefs before this court, Wyatt has never conceded that Spear is his agent. Thus, in order to conclude that venue as to Spear would be proper in Duval County, the court affords Wyatt the benefit of a fact that Wyatt himself is still refuting.
Second, as if to hedge its bets, the court cites in a footnote to the continuance provision of the 1983 Act amending article 1955 and asserts that, because the Nueces County lawsuit “was not on appeal on the effective date of the new venue law,” the old venue laws are not effective as to the question of whether Spear could have been joined in Duval County. The continuance provision of the 1983 Act stated:
This Act takes effect September 1, 1983, and shall not apply to pending appeals on venue questions. For the purpose of appeals on venue questions pending prior to September 1, 1983, the former law is continued in effect.
There have been prior disputes concerning the meaning of this provision. However, the questions at least arose in the context of pleas of privilege and interlocutory appeals from them, the statutory language, “appeals on venue questions,” has never been construed to mean anything other than interlocutory appeals from pleas of privilege. See, e.g., Gonzalez v. H.E. Butt Grocery Co., 667 S.W.2d 188 (Tex.App.—Corpus Christi 1983, writ dism’d w.o.j.); Grubbs v. Mercantile Texas Corp., 668 S.W.2d 429 (Tex.App.—Eastland 1984, no writ); Graue-Haws, Inc. v. Fuller, 666 S.W.2d 238 (Tex.App.—El Paso 1984, orig. proceeding); Boyd v. Raymondville State Bank, 668 S.W.2d 466 (Tex.App.—Corpus Christi 1984, no writ). This continuance provision has never previously been applied to or even discussed in any scenario such as this one involving an appeal from a final judgment raising a plea in abatement question.
Moreover, the court also assumes that the trial judge, on his own, should have figured out the applicability of the continuance provision. Wyatt never mentioned anything at all about the new venue laws, much less about this continuance provision, in either his first or second plea in abatement. His position has always been that venue as to Spear was immaterial.
The court strains too hard and thereby betrays the inherent weakness of its position. Under the old venue laws, if Shaw Plumbing had attempted to join Spear in Duval County, Spear could have asserted a plea of privilege which would have been proper. In order to avoid this reality, the court is forced to rely on an attenuated construction of a continuance provision that was never argued either at trial or on appeal.2
There is still another reason for why the Nueces County trial judge acted properly in refusing to abate the second suit. Curtis v. Gibbs, 511 S.W.2d at 267, stated the following exception to the general rule of dominant jurisdiction:
[T]he plaintiff in the first suit may be guilty of such inequitable conduct as will estop him from relying on that suit to abate a subsequent proceeding brought by his adversary.
In this case, Wyatt filed his DTPA suit against Shaw Plumbing after having already received Shaw Plumbing’s thirty day demand letter, and he did so without giving the thirty day notice required of him under the Deceptive Trade Practices — Consumer Protection Act. Tex.Bus. & Com.Code Ann. § 17.505 (Vernon 1987).
Wyatt’s failure to give the required stat-. utory notice enabled him to beat Shaw Plumbing to the courthouse and fix venue in Duval County. The proper remedy for a party’s failure to give the required DTPA *251notice is ordinarily abatement rather than dismissal. The Moving Company v. Whitten, 717 S.W.2d 117 (Tex.App.—Houston [14th Dist.] 1986, writ ref'd n.r.e.); see also Schepps v. Presbyterian Hospital, 652 S.W.2d 934 (Tex.1983). Under the circumstances of this case, I would hold that although a party’s failure to comply with the statutory notice requirement will not result in dismissal, it is nevertheless a type of “inequitable conduct” that cannot be used as a vehicle for fixing venue. Thus, I would further hold that Wyatt’s failure to give the required DTPA notice estops him from relying on his first-filed suit to abate the subsequent suit.3
Although the court’s opinion acknowledges the exceptions to the general rule of dominant jurisdiction, it summarily states that none apply. Upon analysis, I am unable to reach the same conclusion. Therefore, I dissent from the court’s opinion and would affirm the judgment of the court of appeals.
PHILLIPS, C.J., and MAUZY, J., join.. Contrast this with the currently effective law which expressly states that "venue of the main action shall establish venue of a counterclaim, cross claim, or third party claim_” Tex.Civ. Prac. & Rem.Code Ann. § 15.062 (Vernon 1986).
. Furthermore, Wyatt did not raise this argument in either of his attempts to obtain mandamus relief against the Nueces County trial judge; In seeking to compel the trial judge to grant the plea in abatement, Wyatt filed in the Corpus Christi Court of Appeals a petition for writ of mandamus. That court denied the writ. Wyatt v. Westergren, 704 S.W.2d 148 (Tex.App.—Corpus Christi 1986, orig. proceeding). Wyatt then submitted a petition for writ of mandamus to this court and we overruled his motion for leave to file. Wyatt v. Westergren, No. C-5008 (Feb. 19, 1986).
. In a concurring opinion, Justice Kilgarlin also voices his concern about the manner in which Wyatt effectively fixed venue by failing to give the required DTPA notice. However, he refuses to address the matter because Shaw Plumbing did not brief it. Of course, Shaw Plumbing had no reason to complain about this matter on appeal because it won at the trial court and won in the court of appeals. See Boyce Iron Works, Inc. v. Southwestern Bell Telephone Co., 747 S.W.2d 785 (Tex.1988). By contrast, Wyatt as the petitioner here did have the burden of preserving his arguments. Tex.R.App.P. 131. Wyatt never raised any argument concerning the venue laws, new or old, and certainly never mentioned the continuance provision to the 1983 amendments; yet the court does not hesitate to reach that matter.