in Re: The Big 12 Conference, Inc.

Opinion

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,

1 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.

–2– 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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