153-297658-18 FILED

TARRANT COUNTY
1/31/2018 2:33 PM
THOMAS A. WILDER
CAUSE NO. 153-297658-18 DISTRICT CLERK

TEXAS CHRISTIAN UNIVERSITY § IN THE DISTRICT COURT

§
Plaintiff, §
§
VS. § OF TARRANT COUNTY, TEXAS
§
KOLBY LISTENBEE §
§
Defendant. § 153rd JUDICIAL DISTRICT

PLAINTIFF’S FIRST AMENDED ORIGINAL PETITION FOR DECLARATORY RELIEF

TO THE HONORABLE JUDGE OF SAID COURT:

NOW COMES TEXAS CHRISTIAN UNIVERSITY, (hereinafter “Plaintiff” or

“TCU”) and pursues a declaratory relief claim involving and complaining of KOLBY

LISTENBEE (“Defendant” or “Listenbee”) 1, and files this its First Amended Plaintiff’s

Original Petition for Declaratory Relief and for cause of action would respectfully show

the Court the following:

I.

THE PARTIES

1.01 Plaintiff is a Texas non-profit Texas corporation whose principal place of

business is located in Tarrant County, Texas.

1.02 Defendant Kolby Listenbee is believed to be a resident of Tarrant County,

Texas, and may be served with citation and process in Tarrant County, Texas at his

residence believed to be 2748 White Oak Drive, Grand Prairie, Texas 75052.

1
JPS Physician Group, Inc. is joined as a necessary party as joinder is feasible and required to the extent
the Court determines that absent JPS Physician Group, Inc.’s participation in this lawsuit, complete relief
cannot be afforded to Plaintiff and Defendant. No monetary relief is sought by Plaintiff from JPS
Physician Group, Inc.

PLAINTIFF’S FIRST AMENDED ORIGINAL PETITION FOR DECLARATORY RELIEF Page 1

I:\09700\0044\12N0916.DOCX
 1.03 JPS Physician Group, Inc. is a charitable organization created by the

board of Tarrant County Hospital District and is a unit of local government as provided

in Section 281.0565, Texas Health and Safety Code. JPS Physician Group, Inc. may

be served with citation and process by serving its registered agent, Kristin Jenkins, or

other designated agent authorized to accept service of process, at 1500 S. Main, Fort

Worth, Texas 76104.

II.

DISCOVERY LEVEL

2.01 Plaintiff pleads that discovery will be conducted in accordance with a

discovery control plan under Texas Rule of Civil Procedure 190.4 (Level 3), such

designation being without prejudice to subsequent requests for modification, if any.

III.

JURISDICTION AND VENUE

3.01 The Plaintiff in this case seeks non-monetary relief in the form of a

declaratory judgment. This Court has subject matter jurisdiction over this action

pursuant to Section 37.003 of the Texas Civil Practice and Remedies Code and

because all of the material events giving rise to this cause of action occurred in Tarrant

County, Texas and the amount in controversy is within the jurisdictional limits of the

court.

3.02 Venue is proper in Tarrant County under Texas Civil Practices &

Remedies Code Section 15.002(a)(1) and (2) because all or a substantial part of the

events or omissions giving rise to the claim occurred in Tarrant County and Defendant

resided in Tarrant County at the time his alleged cause of action occurred.

PLAINTIFF’S FIRST AMENDED ORIGINAL PETITION FOR DECLARATORY RELIEF Page 2

I:\09700\0044\12N0916.DOCX
 3.03 Venue of this action is also mandatory in Tarrant County under Section

281.056, Texas Public Health and Safety Code which requires that any claim involving

or pertaining to a health care liability claim under the Texas Medical Liability Act may be

brought against the charitable local governmental unit only in the county in which the

district that created the charitable local governmental unit is established. Tarrant

County Hospital District is established and located in Tarrant County, Texas.

IV.

BRIEF STATEMENT OF FACTS

4.01 Defendant is a former TCU student. He also played football and ran track

for TCU. He graduated from TCU in December 2015.

4.02 Defendant alleges he was injured on September 19, 2015 during the TCU

football game against Southern Methodist University in Fort Worth, Texas. Following

the game, Defendant was seen by Dr. Michele Kirk (“Kirk”) and/or Dr. Jason Mogonye

(“Mogonye”) who, at all relevant times, were JPSPG physicians for TCU’s student

athletes pursuant to a Health Services Contract.

4.03 Plaintiff and JPS Physician Group, Inc. (“JPSPG”) entered into a Health

Services Contract (“the Contract”) effective as of November 1, 2013. Pursuant to the

Contract, JPSPG agreed to provide Primary Care Services through licensed physicians.

According to the Contract, the JPSPG relationship to TCU was one of independent

contractor and the employees or agents of JPSPG were not to be deemed or construed

to be the employees of TCU for any purpose. Kirk and Mogonye’s services for TCU as

pertaining to Listenbee were pursuant to the Contract.

PLAINTIFF’S FIRST AMENDED ORIGINAL PETITION FOR DECLARATORY RELIEF Page 3

I:\09700\0044\12N0916.DOCX
 4.04 Following his injury, Defendant was treated by these physicians until

January 2, 2016.

4.05 Defendant’s last game for TCU was played on January 2, 2016 against

Oregon. Following that game, Defendant failed to return to TCU to complete an exit

exam by either physician.

4.06 Upon information and belief, Defendant trained extensively in January and

February 2016 at a facility in another state. He also voluntarily participated in the NFL

Combine in Indianapolis, Indiana in late February of 2016 where he posted the second

fastest time that year in the 40-yard dash at 4.39 seconds.

4.07 Upon information and belief, in March and July 2016, Defendant

underwent surgery to repair two sports hernias. In April 2016, Defendant was selected

in the 6th round of the NFL Draft by the Buffalo Bills and later signed a four-year rookie

contract with the Bills. The Bills placed Defendant on the non-football injury list in

August 2016.

4.08 In December 2016, Defendant underwent a third surgical procedure while

employed by the Buffalo Bills football club.

4.09 On September 13, 2017, Defendant’s counsel sent a demand letter to

Plaintiff threatening to sue TCU and certain employees and alleged agents under the

Texas Medical Liability Act. In that letter, and in an earlier letter in which a draft petition

was sent to TCU, Listenbee threatened to file suit against TCU in Tarrant County

District Court. His counsel further alleged that Listenbee’s claims arose from TCU’s

acts or omissions relating to his medical treatment following the incident on September

19, 2015. Further, they allege TCU is vicariously liable for the alleged acts or omissions

PLAINTIFF’S FIRST AMENDED ORIGINAL PETITION FOR DECLARATORY RELIEF Page 4

I:\09700\0044\12N0916.DOCX
of its employees, including an allegation that the JPSPG physicians are agents and/or

employees of TCU.

V.

ACTION FOR DECLARATORY RELIEF

5.01 Plaintiff incorporates the factual allegations set forth in this petition as if

set forth fully herein as to the declaratory relief sought. Plaintiff seeks declaratory relief,

pursuant to the Texas Uniform Declaratory Judgment Act, Texas Civil Practice and

Remedies Code, Section 37.001. Plaintiff hereby requests that this Court construe and

interpret the terms of the Health Services Contract and declare that the physicians

provided thereunder are independent contractors and not employees or agents of TCU

and accordingly, TCU is not vicariously liable for injuries or damages, if any, arising out

of their alleged acts and/or omissions, if any, in the medical care and treatment of

Defendant.

5.02 Additionally, Plaintiff hereby requests that this Court declare, as admitted

by Listenbee through his attorney, that his claims, regardless of how worded, arise from

the alleged medical negligence of the JPSPG physicians and are healthcare liability

claims that must be brought against a health care provider under the Texas Medical

Liability Act.

5.03 Additionally, Plaintiff hereby requests that this Court declare that any and

all alleged acts or omissions complained of by Defendant and alleged to have been

committed by Kirk, Mogonye, JPSPG or any other employee or agent of JPSPG cannot,

as a matter of law, be imputed to TCU.

PLAINTIFF’S FIRST AMENDED ORIGINAL PETITION FOR DECLARATORY RELIEF Page 5

I:\09700\0044\12N0916.DOCX
 VI.

ATTORNEY’S FEES

6.01 The Plaintiff has retained the law firm of McDonald Sanders, a

Professional Corporation, to represent the Plaintiff in this action and has agreed to pay

the firm reasonable and necessary attorney’s fees. An award of reasonable and

necessary attorney’s fees to the Plaintiff would be equitable and just and therefore

authorized by Section 37.009 of the Civil Practice and Remedies Code.

VII.

RELIEF REQUESTED

WHEREFORE, PREMISES CONSIDERED, Plaintiff, Texas Christian University

prays that Defendant, Kolby Listenbee and JPSPG be cited to appear and answer

herein, and that upon final hearing hereof that Plaintiff have judgment as follows:

1. declaratory judgment against Defendant for the relief requested in

Paragraphs 5.01 through 5.03 above;

2. Plaintiff’s reasonable and necessary attorney’s fees;

3. all costs of Court; and

4. for such other and further relief to which Plaintiff may be justly entitled.

PLAINTIFF’S FIRST AMENDED ORIGINAL PETITION FOR DECLARATORY RELIEF Page 6

I:\09700\0044\12N0916.DOCX
 Respectfully submitted,

McDONALD SANDERS,
A Professional Corporation

By: /s/ George C. Haratsis

George C. Haratsis
State Bar No. 08941000
gharatsis@mcdonaldlaw.com

Jennifer N. Littman
State Bar No. 00786142
jlittman@mcdonaldlaw.com

777 Main Street, Suite 1300

Fort Worth, Texas 76102
(817) 336-8651 Telephone
(817) 334-0271 Facsimile

ATTORNEYS FOR PLAINTIFF

TEXAS CHRISTIAN UNIVERSITY

PLAINTIFF’S FIRST AMENDED ORIGINAL PETITION FOR DECLARATORY RELIEF Page 7

I:\09700\0044\12N0916.DOCX