STONE LOUGHLIN & SWANSON, LLP

 ATTORNEYS AT LAW

 DAN PRICE

 DPRICE@SLSAUSTIN.COM

P.O. BOX 30111

AUSTIN, TEXAS 78755

512.343.1300

512.343.1385 FAX

WWW.SLSAUSTIN.COM

December 14, 2015

Via E-Filing

Jeffrey D. Kyle, Clerk

Court of Appeals

Third District of Texas 

P.O. Box 12547

Austin, Texas 78711-2547

Re: California Insurance Guarantee Association, Oklahoma Property and Casualty Insurance

Guaranty Association and Texas Property and Casualty Insurance Guaranty Association v.

Hill Brothers Transportation, Inc., Cause No. 03-15-00314-CV, in the 3 Court of Appeals rd

Texas, Trial Court No. D-1-GN-09-001010; SLS No. 21744

AMENDED LETTER BRIEF

(adding Certificate of Compliance with TEX. R. APP. P. 9.4)

Dear Mr. Kyle:

During oral argument on December 2, 2015, the Court presented the parties with the question of

whether Hill Bros.’ cross-point of appeal is a jurisdictional issue that must be addressed by the

Court, irrespective of whether the issue was the proper subject of appeal of the trial court’s summary

judgment. This letter brief is provided in response to the Court’s request.

Applying a liberal reading to the arguments presented in support of the cross-appeal, the Guaranty

Associations acknowledge Hill Bros. raised as an issue whether the Guaranty Associations have

standing to sue for breach of contract.

Issue Presented on Cross-Appeal

Hill Bros.’ issue on cross-appeal alleges “the Guaranty Associations are not proper parties to sue for

breach of contract.”1

Appellee’s Br. at 17. 1

OFFICES LOCATED AT 3508 FAR WEST BOULEVARD, SUITE 200, AUSTIN, TEXAS 78731

ACCEPTED

03-15-00314-CV

8219871

THIRD COURT OF APPEALS

AUSTIN, TEXAS

12/14/2015 11:47:51 AM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 12/14/2015 11:47:51 AM JEFFREY D. KYLE Clerk
STONE LOUGHLIN & SWANSON, LLP

 ATTORNEYS AT LAW

Standing is a Jurisdictional Question

Whether a plaintiff has standing is an issue of subject matter jurisdiction that may be raised for the

first time on appeal. Tex. Ass’n of Business v. Tex. Air Control Bd., 852 S.W.2d 440, 445-46 (Tex.

1993).

Standing in Breach of Contract Cases

“The general test for standing in Texas requires that there ‘(a) shall be a real controversy between

the parties, which (b) will be actually determined by the judicial declaration sought.’” Id. (quoting

Bd. of Water Eng’rs v. City of San Antonio, 283 S.W.2d 722, 724 (Tex. 1955)). A justiciable

controversy exists “only if there is a real and substantial controversy involving a genuine conflict of

tangible interests and not merely a theoretical dispute.” Basic Energy Servs., Inc. v. D-S-B Props.,

Inc., 367 S.W.3d 254, 260 (Tex. App.–Tyler 2011) (citing Bonham State Bank v. Beadle, 907

S.W.2d 465, 467 (Tex. 1995)).

In breach of contract cases, this Court has determined that the issue of standing is raised when a

defendant alleges a plaintiff is: (1) not a party to the contract, Hamilton v. Washington, No. 03-11-

00594-CV, 2014 WL 7458988, *9 (Tex. App.–Austin Dec. 23, 2014); (2) not in privity of contract

with the defendant, First-Citizens Bank &Trust Co. v. Greater Austin Telecommunications Network,

318 S.W3d 560, 566 (Tex. App.–Austin 2010); and (3) not a third party beneficiary to the contract,

Hamilton, 2014 WL 7458988 at *9.

The Guaranty Associations Acknowledge Hill Bros. Raised an Issue of Standing

In Appellee’s Brief, Hill Bros. submits the Guaranty Associations are not proper parties to sue for

breach of contract because: (1) they do not stand in the shoes of Legion for purposes of enforcing

the Policy, (2) they are not third-party beneficiaries of the Policy, (3) they lack statutory authority 2 3

to sue Hill Bros., and (4) the cause of action the Guaranty Associations allege is owned by the 4

Legion Liquidator. At oral argument Hill Bros. also alleged the Guaranty Associations cannot sue 5

because they lack privity of contract with Hill Bros.

Applying a liberal reading to these arguments, the basic premise asserted is that the Guaranty

Associations do not have standing to sue to enforce the Policy because neither the Policy nor any

statute nor any order grants the Guaranty Associations Legion’s the right to sue Hill Bros. to enforce

the Policy. In making these arguments, Hill Bros. specifically raised allegations the Court previously

defined as issues of standing (e.g., lack of privity, lack of third party beneficiary status). Further, in

Id. Unless otherwise specified, as used herein, capitalized terms shall having the meaning ascribed in

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Appellee’s Brief.

Id.

3

Id. at 18. 

4

Id.

5

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STONE LOUGHLIN & SWANSON, LLP

 ATTORNEYS AT LAW

alleging the breach of contract claim is owned by Legion, Hill Bros. alleges Legion suffered the

injury of Hill Bros.’ breach and, therefore, the Guaranty Associations lack a justiciable interest in

the controversy.

Because the Court has previously determined similar allegations to those presented by Hill Bros. on

cross-appeal raised issues of standing, and because Hill Bros. asserts the GuarantyAssociations lack

a justiciable interest in the litigation, the GuarantyAssociations acknowledge the cross-appeal raised

the jurisdictional issue of standing.

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Conclusion

While Hill Bros.’ cross-appeal raises issues of standing, for the reasons stated in Appellants’ Reply

Brief and as presented at oral argument, the GuarantyAssociations respectfullysubmit that the crossappeal lacks merit. 

The Guaranty Associations unquestionably have standing and are proper parties to sue for breach

of contract in this case.

Very truly yours,

STONE LOUGHLIN & SWANSON, LLP

Dan Price

DP/rer

G:\SLS\21744\Appeal\Drafts\2015-12-14 GAs' Amended Letter Brief on Authority to Sue (final).wpd

Certificate of Compliance

Relying on the word count program of the computer program used to prepare Appellants’

Amended Letter Brief, the total number of words in this document, excluding words that are not to

be counted under TEX. R. APP. P. 9.4(i)(1), is 783.

Dan Price

Please note, although the Guaranty Associations acknowledge the issue on cross-appeal raised the issue

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of standing, nothing herein should be construed by the Court asthe Guaranty Associations’ agreement to or endorsement of

any argument made by Hill Bros. in support of its cross-appellate issue.

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STONE LOUGHLIN & SWANSON, LLP

 ATTORNEYS AT LAW

cc: Via E-Filing

Marnie McCormick

Adrian Ciechanowicz

DUGGINS WREN MANN & ROMERO, LLP

P.O. Box 1149

Austin, Texas 78767-1149

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