                                                                                                                      ACCEPTED
                                                                                                                  03-15-00314-CV
                                                                                                                          8343638
                                                                                                       THIRD COURT OF APPEALS
                                                                                                                  AUSTIN, TEXAS
                                                                                                            12/22/2015 1:32:36 PM
                                                                                                                JEFFREY D. KYLE
                                                                                                                           CLERK




                                                                                               FILED IN
One American Center                                                                     3rd COURT OF APPEALS
       600 Congress                                                                          AUSTIN, TEXAS
           Suite 1900                                   December 22, 2015
   Austin, TX 78701                                                                     12/22/2015 1:32:36 PM
                                                                                            JEFFREY D. KYLE
      P.O. Box 1149                                                                              Clerk
    Austin, TX 78767

    p: 512.744.9300
     f: 512.744.9399
  www.dwmrlaw.com       Via E-Filing
                        Jeffrey D. Kyle, Clerk
                        Court of Appeals for the Third District of Texas
                        209 West 14th Street, Room 101
                        Austin, Texas 78701

                        RE:     Court of Appeals Number: 03-15-00314-CV
                                Trial Court Case Number: D-1-GN-09-001010

                                California Insurance Guarantee Association, Oklahoma Property
                                and Casualty Insurance Guaranty Association, and Texas Property
                                and Casualty Insurance Guaranty Association v. Hill Brothers
                                Transportation, Inc.

                        Dear Mr. Kyle:

                               At the oral argument of this case on December 2, 2015, the Court
                        asked whether Appellee Hill Brothers Transportation, Inc.’s cross-point
                        raises an issue of subject-matter jurisdiction. The appellant guaranty
                        associations filed a letter on December 11, 2015, acknowledging that Hill
                        Brothers’ cross-point is a jurisdictional issue.

                               Although there appears to be some disagreement among Texas
                        courts, this Court has consistently analyzed the question of whether one is
                        the proper party to bring a breach of contract action as a jurisdictional issue
                        of “standing.”1 The most recent of these cases is Justice Field’s opinion in

                        1
                          See Handwerker Hren Legal Search, Inc. v. Recruiting Partners GP, Inc., No. 03-13-
                        00239-CV, 2015 WL 4999054 (Tex. App. – Austin Aug. 19, 2015, pet. requested)
                        (employees of recruiting firm sued to recover under contract between their employer and
                        another; whether employees could sue for breach of contract was jurisdictional issue of
                        “standing”); Hamilton v. Washington, No. 03-11-00594-CV, 2014 WL 7458988 *9
Jeffrey D. Kyle, Clerk
December 22, 2015
Page 2

Handwerker Hren Legal Search, Inc. v. Recruiting Partners GP, Inc.,
issued a mere five months ago.2

       This Court has correctly treated the issue as a jurisdictional one. Hill
Brothers’ cross-point asserts that the guaranty associations have no legal
interest in the contract rights of Legion, an insolvent insurer being
liquidated in the Pennsylvania courts. In other words, the guaranty
associations have no legally-cognizable interest in the contract they seek to
enforce. This is an issue of standing, or subject matter jurisdiction.

       For the reasons explained in its Appellee’s Brief, Hill Brothers
respectfully requests that the Court either dismiss the judgment of the
district court for want of jurisdiction, or affirm the judgment.




(Tex. App. – Austin Dec. 23, 2014, no pet.) (same when officer sued to collect under
contract between city and police association); see also Gonzales v. VATR Const., LLC,
418 S.W.3d 777, 789 (Tex.App.—Dallas 2013, no pet.) (same when estate of deceased
worker sued under contract between contractor and property owner); First-Citizens Bank
& Trust Co. v. Greater Austin Telecommunications Network, 318 S.W.3d 560, 566 (Tex.
App. – Austin 2010, no pet.) (same when assignee bank sued on contract between
cabling company and government); OAIC Commercial Assets, L.L.C. v. Stonegate Vill.,
L.P., 234 S.W.3d 726, 738 (Tex.App.—Dallas 2007, pet. denied) (same when
“unadmitted assignee” of partner’s interest sued on partnership agreement). But see
John C. Flood of DC, Inc. v. SuperMedia, 408 S.W.3d 645, 651 (Tex.App.—Dallas
2013, pet. denied) (company sued to collect under a contract to which it was not a party;
authority to bring breach-of-contract action held to be non-jurisdictional issue of
“capacity”); Dakil v. Lege, 408 S.W.3d 9, 11 (Tex. App. – El Paso 2012, no pet.) (same
when contractor sued for payment on invoices of corporation but did not prove authority
to sue on behalf of corporation); Yasuda Fire & Marine Ins. Co. of Am. v. Criaco, 225
S.W.3d 894, 898 (Tex. App. – Houston [1st Dist.] 2007, no pet.) (same when law firm
sued to recover under agreement between firm’s client and client’s insurance company);
Spurgeon v. Coan & Elliott, 180 S.W.3d 593, 597 (Tex. App. – Eastland 2005, no pet.)
(same when lawyers sued to collect under contract between client and law firm).
2
  See 2015 WL 4999054.
Jeffrey D. Kyle, Clerk
December 22, 2015
Page 3

                                      Sincerely,


                                       /s/ Marnie McCormick
                                      Marnie McCormick


                     CERTIFICATE OF COMPLIANCE

      I certify that this document contains 337 words in the portions of the
document that are subject to the word limits of Texas Rule of Appellate
Procedure 9.4(i), as measured by the undersigned’s word-processing
software.


                                       /s/ Marnie McCormick
                                      Marnie McCormick




CC: Via E-Filing
    Dan Price
    STONE LOUGHLIN & SWANSON, LLP
    P.O. Box 30111
    Austin, Texas 78755
    dprice@slsaustin.com
