                                                                                    ACCEPTED
                                                                                13-15-00097-CV
                                                                THIRTEENTH COURT OF APPEALS
                                                                       CORPUS CHRISTI, TEXAS
                                                                          4/27/2015 11:50:43 AM
                                                                              DORIAN RAMIREZ
                                                                                         CLERK

                           NO. 13-15-00097-CV

                                                        FILED IN
                                                13th COURT OF APPEALS
                                             CORPUS CHRISTI/EDINBURG, TEXAS
                        IN THE COURT OF APPEALS
                                FOR THE         4/27/2015 11:50:43 AM
                                                  DORIAN E. RAMIREZ
             THIRTEENTH COURT OF APPEALS DISTRICT OF  TEXAS
                                                         Clerk




               TIMOTHY D. RAUB AND RAUB LAW FIRM, P.C.,
                                          APPELLANTS,

                              — VERSUS—

             GATE GUARD SERVICES, L.P., SIDNEY L. SMITH, AND
              ASSOCIATION CASUALTY INSURANCE COMPANY,
                                              APPELLEES.



                    BRIEF OF APPELLANTS
            TIMOTHY D. RAUB AND RAUB LAW FIRM, P.C.



ABRAHAM MOSS                           BETH WATKINS
STATE BAR NO. 14581700                 STATE BAR NO. 24037675
MOSS LAW OFFICE                        SHANNON K. DUNN
5350 SOUTH STAPLES STREET              STATE BAR NO. 24074162
SUITE 209                              LAW OFFICE OF BETH WATKINS
CORPUS CHRISTI, TEXAS 78411            926 CHULIE DRIVE
(361) 992-8999– PHONE                  SAN ANTONIO, TEXAS 78216
(361) 232-5007– FAX                    (210) 225-6666– PHONE
AMOSS@AMLAWYERS.COM                    (210) 225-2300– FAX
                                       BETH.WATKINS@WATKINSAPPEALS.COM
                                       SHANNON.DUNN@WATKINSAPPEALS.COM


                  ATTORNEYS FOR APPELLANTS
           ORAL ARGUMENT CONDITIONALLY REQUESTED
                   IDENTITIES OF PARTIES AND COUNSEL

APPELLANTS
Timothy D. Raub and Raub Law Firm, P.C.

     APPELLANT’S COUNSEL AT TRIAL AND ON APPEAL
     Abraham Moss
     State Bar No. 14581700
     MOSS LAW OFFICE
     5350 South Staples Street, Suite 209
     Corpus Christi, Texas 78411
     (361) 992-8999– phone
     (361) 232-5007– fax
     amoss@amlawyers.com

     APPELLANT’S COUNSEL ON APPEAL
     Beth Watkins
     State Bar No. 24037675
     Shannon K. Dunn
     State Bar No. 24074162
     LAW OFFICE OF BETH WATKINS
     926 Chulie Drive
     San Antonio, Texas 78216
     (210) 225-6666– phone
     (210) 225-2300– fax
     Beth.Watkins@WatkinsAppeals.com
     Shannon.Dunn@WatkinsAppeals.com




                                    -i-
APPELLEES
Gate Guard Services, L.P., Sidney L. Smith, and Association Casualty Insurance
Company

     APPELLEES’ COUNSEL AT TRIAL AND ON APPEAL
     Greg C. Wilkins
     State Bar No. 00797669
     Monica L. Wilkins
     State Bar No. 24043968
     ORGAIN BELL & TUCKER, LLP
     Post Office Box 1751
     Beaumont, Texas 77704
     (409) 838-6412– phone
     (409) 838-6959– fax
     gcw@obt.com
     mwilkins@obt.com




                                     -ii-
                                          TABLE OF CONTENTS

IDENTITIES OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix

STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . x

ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xi

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

ARGUMENT AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

I.      STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

II.     RAUB HAS STANDING TO SUE GATE GUARD BECAUSE HIS PLEADINGS
        DEMONSTRATED THAT HE SUFFERED A PARTICULARIZED INJURY AS A
        RESULT OF GATE GUARD’S CONDUCT TOWARD HIM . . . . . . . . . . . . . . . . . 8

        A.       The Trial Court Should Have Rejected Gate Guard’s Standing
                 Argument Because They Go To The Merits of Raub’s Claims, Not
                 To The Trial Court’s Power to Hear Them Or Raub’s Right To
                 Assert Them . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

                 1.       A plaintiff’s lack of true jurisdictional standing can deprive
                          a court of power to hear a case, but a lack of contractual
                          “standing” cannot . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

                 2.       Raub’s pleadings demonstrated that he has standing to sue
                          Gate Guard for its wrongful conduct . . . . . . . . . . . . . . . . . . 10


                                                       -iii-
                3.       Gate Guard’s plea to the jurisdiction did not deny that Raub
                         had suffered a particularized injury, but instead complained
                         only that Raub had sued the wrong party . . . . . . . . . . . . . . 11

        B.      Berry Does Not Apply To The Facts Of This Case . . . . . . . . . . . . 15

                1.       Berry involved derivative claims and relied on a Supreme
                         Court opinion that involved derivative claims. This case
                         does not involve a derivative claim . . . . . . . . . . . . . . . . . . . 15

                2.       Because this case involves a “secret settlement,” the
                         outcome here is dictated by the Supreme Court’s opinion in
                         Ginther, not this Court’s opinion in Berry . . . . . . . . . . . . . 19

                3.       Despite Gate Guard’s exclusive reliance on Berry, that case
                         is so distinguishable from these facts as to make it
                         essentially worthless for the resolution of this dispute . . . . 20

        C.      Gate Guard’s Standing Arguments Are Belied By Its Own Actions
                In This Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

                1.       If Gate Guard cannot be liable to Raub because Raub lacks
                         standing to sue it, then the indemnity agreement between
                         Gate Guard, Craft, and Henry is essentially meaningless . . 22

                2.       By pointing out that Raub lacks contractual privity with it,
                         Gate Guard implicitly recognized that Raub is not bound by
                         the indemnity agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

CONCLUSION AND PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28




                                                      -iv-
APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

         DOCUMENT                                                                                               TAB

         January 30, 2015 Order granting Gate Guard’s plea to the jurisdiction . . 1




                                                         -v-
                                        INDEX OF AUTHORITIES

CASES                                                                                                      PAGE

Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845 (Tex. 2005) . . . . . . . 7, 8, 10

Berry v. Nueces County, No. 13-05-00383-CV, 2006 WL 1280901 (Tex.
      App.–Corpus Christi May 11, 2006, pet. denied) (mem. op.)
      . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 14, 15, 16, 17, 18, 19, 20, 21, 22

Burris v. Metro. Transit Auth., 266 S.W.3d 16 (Tex. App.–Houston [1st Dist.]
      2008, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 22

City of Houston v. Morua, 982 S.W.2d 126 (Tex. App.–Houston [1st Dist.]
      1998, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

City of Houston v. Rhule, 417 S.W.3d 440 (Tex. 2013) . . . . . . . . . . . . . . . . . . . . 7

Concerned Cmty. Involved Dev., Inc. v. City of Houston, 209 S.W.3d 666 (Tex.
     App.–Houston [14th Dist.] 2006, pet. denied) . . . . . . . . . . . . . . . . . . . . . . 8

Dairyland County Mut. Ins. Co. v. Estate of Basnight, 557 S.W.2d 597 (Tex.
      Civ. App.–Waco 1977, writ ref’d n.r.e.) . . . . . . . . . . . . . . . . . . . . . . . . . 25

Dow Chem. Co. v. Benton, 357 S.W.2d 565 (Tex. 1962) . . . . . . . . . . . 16, 17, 18

Galveston, H. & S. A. Ry. Co. v. Ginther, 72 S.W. 166 (Tex. 1903) . . . . . . 19, 20

Gen. Motors Acceptance Corp. v. Harris County Mun. Util. Dist. # 130, 899
     S.W.2d 821 (Tex. App.–Houston [14th Dist.] 1995, no writ) . . . . . . . . . . 8

Honeycutt v. Billingsley, 992 S.W.2d 570 (Tex. App.–Houston [1st Dist.] 1999,
     pet. denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15, 18

Hudson v. Hinton, 435 S.W.2d 211 (Tex. Civ. App.–Dallas 1968, no writ) . . 24




                                                   -vi-
Ingersoll-Rand Co. v. Valero Energy Corp., 997 S.W.2d 203 (Tex. 1999)
       . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 24, 25

Nootsie, Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659 (Tex.
      1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Rapid Settlements, Ltd. v. Green, 294 S.W.3d 701 (Tex. App.–Houston [1st
      Dist.] 2009, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154 (2010) . . . . . . . . . . . . . . . . . . . . . 9

Rogers v. Duke, 766 S.W.2d 547 (Tex. App.–Houston [1st Dist.] 1989, no writ)
      . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 22

Sammons & Berry, P.C. v. Nat’l Indemnity Co., No. 14-13-00070-CV, 2014
    WL 3400713 (Tex. App.–Houston [14th Dist.] July 10, 2014, no pet.)
    (mem. op.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13, 14

Terrell v. Pampa Indep. Sch. Dist., 345 S.W.3d 641 (Tex. App.–Amarillo 2011,
      pet. denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 22

Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440 (Tex. 1993) . . . . 7, 8

Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) . . . . . 7

Williams v. Huff, 52 S.W.3d 171 (Tex. 2001) . . . . . . . . . . . . . . . . 8, 9, 11, 15, 18

Yasuda Fire & Marine Ins. Co. of Am. v. Criaco, 225 S.W.3d 894 (Tex.
     App.–Houston [14th Dist.] 2007, no pet.) . . . . . . . . . . . . . . . . . . . 9, 12, 14

STATUTES AND RULES

Tex. Gov’t Code Ann. § 25.1802 (Lexis 2013) . . . . . . . . . . . . . . . . . . . . . . 10, 11

Tex. R. Civ. P. 306a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4




                                                          -vii-
CONSTITUTION

Tex. Const. art. V, § 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10




                                                       -viii-
                               STATEMENT OF THE CASE

       This is an appeal of a dismissal after a plea to the jurisdiction arguing the

plaintiffs lacked standing to assert their claims. CR 143.1 Appellants Timothy D. Raub

and Raub Law Firm, P.C. (collectively, “Raub”) sued Appellees Gate Guard Services,

L.P., Sidney L. Smith, and Association Casualty Insurance Company (collectively,

“Gate Guard”) on claims of tortious interference with existing contract, conspiracy,

fraud, and promissory estoppel. CR 5-11. Raub’s tort claims against Gate Guard arise

out of a secret settlement Gate Guard negotiated with Raub’s former client, Tonya

Craft, in a different lawsuit. See id. Gate Guard and Craft settled their claims and

obtained a judgment without notice to Raub, even though Raub timely intervened in

the lawsuit and Gate Guard expressly recognized the existence of Raub’s interest in

the lawsuit before it settled with Craft. CR 6-7; CR 139-42; CR 56.

       Despite pleadings alleging that Raub had suffered a particularized injury, on

January 30, 2015, the County Court at Law Number 1 of Nueces County, Texas, the

Honorable Martha Huerta, presiding, dismissed Raub’s lawsuit on standing grounds.

CR 143. Raub timely filed his Notice of Appeal on February 25, 2015. CR 147-49.




       1
       Raub will cite the Clerk’s Record as “CR [page number].” Raub will cite the four-volume
Reporter’s Record as “[volume number] RR [page/exhibit number].”

                                             -ix-
                   STATEMENT REGARDING ORAL ARGUMENT

      This is a relatively simple appeal of the trial court’s erroneous conclusion that

Raub lacked standing to seek judicial relief on his claims that Gate Guard committed

numerous torts against him and that he suffered damages as a result. There are no

complicated questions of law or fact at issue here. For this reason, Raub does not

believe oral argument will be helpful to the Court. If, however, the Court decides to

grant oral argument in this case, Raub will attend and present argument.




                                         -x-
                                  ISSUE PRESENTED

      Despite Gate Guard’s insistence in the trial court that Raub’s claims against it

were “derivative” of Craft’s claims against it, Raub did not allege that Gate Guard’s

liability to him arose out of either his contract with Craft or Gate Guard’s tortious

conduct toward Craft. Instead, Raub alleged that Gate Guard was liable to him for

damages he suffered as a result of Gate Guard’s own wrongdoing directly against him.

Furthermore, even if Gate Guard were correct that Raub sued the “wrong” party, that

allegation goes to the merits of Raub’s lawsuit, not to the court’s power to hear it. Did

Raub have standing to sue Gate Guard to recover for the damages that its own

wrongdoing caused him to suffer?




                                          -xi-
                              STATEMENT OF FACTS

      In April of 2011, Appellee Sidney L. Smith was driving through Corpus Christi

in the course and scope of his employment with Appellee Gate Guard Services, L.P.

when he suddenly and unexpectedly veered into a vehicle driven by Kristilyn Carlock.

3 RR 9; CR 6; 4 RR Exh. 1-2. Craft was a passenger in Carlock’s vehicle, and both

she and Carlock suffered injuries in the accident. 3 RR 9; CR 6. Shortly after the

accident, both Carlock and Craft hired Raub to represent them in their lawsuit against

Gate Guard. 3 RR 9; CR 140; CR 6; 4 RR Exh. 1. Craft’s contract with Raub assigned

him a contingent interest in any money Craft recovered from Gate Guard, a

contractual and equitable lien on those funds, and reimbursement for reasonable

expenses Raub incurred or paid on Craft’s behalf. CR 6-7.

      In July of 2011, Craft terminated her contract with Raub without cause and

hired the Law Office of Thomas J. Henry (“Henry”) instead. CR 7. Carlock, however,

opted to retain Raub as her lawyer. CR 140; 3 RR 9. Henry filed a lawsuit against

Gate Guard on Craft’s behalf on October 17, 2011. CR 7; 3 RR 9. Carlock, through

Raub, intervened in that lawsuit. 3 RR 9. With Raub’s assistance, Carlock eventually

settled and dismissed her claims against Gate Guard. See id.; see also 4 RR Exh. 2.

      But Carlock was not the only intervenor in Craft’s lawsuit. On February 27,

2013, Raub intervened on his own behalf to assert his interest in that lawsuit: his

                                         -1-
contractually assigned attorneys’ fees and reimbursement of the expenses he had

incurred in Craft’s case before she unjustifiably fired him. CR 139-42. Raub’s

intervention explicitly asserted an interest in and a lien on “any money derived as a

result of settlement or final judgment obtained in this case and cause.” CR 140. Raub

served notice of his intervention on both Gate Guard and Craft. CR 142. Raub also

sent Gate Guard’s attorneys a letter and a proposed Rule 11 agreement regarding his

claim to a portion of any settlement or final judgment in Craft’s lawsuit. CR 56.

      On May 17, 2013, Gate Guard sent Raub a letter acknowledging his interest in

Craft’s recovery in the underlying lawsuit. CR 56. In that letter, Gate Guard agreed

that Craft’s lawsuit could not be resolved without addressing the claims Raub asserted

through his intervention:




                                         -2-
CR 56. In August of 2013—just three months after Gate Guard expressly

acknowledged and recognized Raub’s interest in Craft’s lawsuit—Gate Guard and

Craft agreed to mediate Craft’s claims. CR 7; 3 RR 19-20; 4 RR Exh. 1. Neither Gate

Guard nor Craft notified Raub of their mediation even though (a) he was an intervenor

in the case and (b) Gate Guard had acknowledged the existence of his interest in

writing. Raub did not participate in the mediation because he had no way of knowing

that it was taking place. See id.




                                         -3-
      The mediation ended in a settlement between Gate Guard and Craft, and Craft

agreed to accept $350,000 in exchange for the release of her claims. CR 59. As part

of its agreement to pay the $350,000, Gate Guard asked Craft to indemnify it against

any future lawsuits brought by Raub. CR 60. By doing so, Gate Guard confirmed both

its knowledge that Raub had an interest in the case and its recognition that Raub might

someday file a lawsuit against it. See id.

      On September 3, 2013, the County Court at Law Number 2 of Nueces County

signed an Agreed Take Nothing Final Judgment memorializing the settlement and

dismissing Craft’s lawsuit. CR 65. Neither Gate Guard nor Craft—both of whom were

indisputably aware of Raub’s asserted interest in the outcome of the case—bothered

to notify Raub of the mediation, the settlement, or the final judgment. 3 RR 20. Raub

also did not receive notice of the judgment from the court, even though the judgment

purported to deny “[a]ll relief not expressly granted herein”—i.e., the relief requested

in Raub’s petition in intervention. CR 65; 3 RR 20; see also Tex. R. Civ. P. 306a

(Raub was entitled to notice of the judgment). Raub did not learn of the settlement and

final judgment until November of 2013, when he happened to find a notation of the

judgment on the Nueces County District Clerk’s website. CR 7; 3 RR 20-21.

      After he learned that Gate Guard and Craft had deliberately excluded him from

the settlement negotiations and the resulting judgment, Raub sued Gate Guard for

                                             -4-
tortious interference with existing contract, conspiracy, fraud, and promissory

estoppel. CR 9-10. Because the amount of his damages—albeit not the factual cause

of the damages themselves—was tied to the terms of his contract with Craft, he also

sought a declaratory judgment on the validity of his contract with Craft and a

declaration of his rights under that contract. CR 8. Importantly, Raub did not allege

that Gate Guard had breached that contract or that its liability to him arose under it;

instead, Raub specifically requested both compensatory and exemplary damages

arising out of Gate Guard’s own tortious conduct toward him. CR 10.

      In response to Raub’s lawsuit, Gate Guard filed a plea to the jurisdiction

alleging Raub lacked standing to sue it. CR 21-22. It based this assertion on its belief

that “the claims Raub has asserted against [Gate Guard] are wholly derivative of the

claims of Craft, and Raub’s rights, claims, and causes of action, are against Craft, not

[Gate Guard].” CR 21. It urged the trial court to find that this Court’s opinion in Berry

v. Nueces County2 mandated the dismissal of Raub’s lawsuit. See id. After a hearing,

the trial court granted Gate Guard’s plea to the jurisdiction and dismissed Raub’s

lawsuit against Gate Guard for lack of subject matter jurisdiction. CR 143. This appeal

followed. CR 147.



      2
        No. 13-05-00383-CV, 2006 WL 1280901 (Tex. App.–Corpus Christi May 11, 2006, pet.
denied) (mem. op.).

                                           -5-
                           SUMMARY OF THE ARGUMENT

      Gate Guard’s position in the trial court was that Raub lacked standing to sue it

for the attorneys’ fees he was owed under his contract with Craft because Raub’s

claims are allegedly “derivative” of those raised by Craft in her own lawsuit. But this

argument—which the trial court erroneously accepted—distorts the true nature of

Raub’s lawsuit against Gate Guard. While the monetary value of Raub’s damages can

be determined by referring to his contract with Craft, the actual fact of the damages

themselves arose out of Gate Guard’s own tortious actions toward Raub, not out of

Gate Guard’s tortious actions toward Craft. Nevertheless, even though Raub’s lawsuit

plainly complains of Gate Guard’s own wrongdoing, Gate Guard used the fact that

those torts deprived Raub of his attorneys’ fees in the Craft lawsuit as a smokescreen

to confuse the trial court into believing Raub sued the “wrong” defendant. This Court

should look beyond Gate Guard’s shell game and recognize that its claim that Raub

lacks standing to sue it for its own wrongdoing—wrongdoing that injured Raub—is

patently absurd.




                                          -6-
                           ARGUMENT AND AUTHORITIES

I.    STANDARD OF REVIEW

      The trial court dismissed Raub’s lawsuit for lack of subject matter jurisdiction

on the basis that Raub lacked standing to sue Gate Guard. CR 143; CR 21-22. The

question of whether the trial court had subject matter jurisdiction over Raub’s

lawsuit—including the question of Raub’s standing to sue—is a legal issue this Court

reviews de novo. See, e.g., City of Houston v. Rhule, 417 S.W.3d 440, 442 (Tex.

2013).

      The plaintiff bears the burden “to allege facts that affirmatively demonstrate the

court's jurisdiction to hear the cause.” Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852

S.W.2d 440, 446 (Tex. 1993). To demonstrate standing, a plaintiff must allege “(1)

a real controversy between the parties, that (2) will be actually determined by the

judicial declaration sought.” Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 849

(Tex. 2005). In reviewing the trial court’s decision to grant Gate Guard’s plea to the

jurisdiction, this Court must construe the jurisdictional allegations in Raub’s pleadings

liberally and in Raub’s favor. See, e.g., Tex. Dep’t of Parks & Wildlife v. Miranda,

133 S.W.3d 217, 226 (Tex. 2004); City of Houston v. Morua, 982 S.W.2d 126, 127

(Tex. App.–Houston [1st Dist.] 1998, no pet.).




                                           -7-
II.   RAUB HAS STANDING TO SUE GATE GUARD BECAUSE HIS PLEADINGS
      DEMONSTRATED THAT HE SUFFERED A PARTICULARIZED INJURY AS
      A RESULT OF GATE GUARD’S CONDUCT TOWARD HIM.

      A.     The Trial Court Should Have Rejected Gate Guard’s
             Standing Arguments Because They Go To The Merits of
             Raub’s Claims, Not To The Trial Court’s Power to Hear
             Them Or Raub’s Right To Assert Them.

             1.     A plaintiff’s lack of true jurisdictional standing can deprive
                    a court of power to hear a case, but a lack of contractual
                    “standing” cannot.

      “The doctrine of standing identifies suits appropriate for judicial

determination.” Concerned Cmty. Involved Dev., Inc. v. City of Houston, 209 S.W.3d

666, 670 (Tex. App.–Houston [14th Dist.] 2006, pet. denied). When a defendant like

Gate Guard files a plea to the jurisdiction asserting the plaintiff lacks standing, that

defendant is really arguing that the court lacks the power to hear the plaintiff’s claims.

See, e.g., Gen. Motors Acceptance Corp. v. Harris County Mun. Util. Dist. # 130, 899

S.W.2d 821, 824 n.3 (Tex. App.–Houston [14th Dist.] 1995, no writ). This is because

jurisdictional standing is a prerequisite to maintaining a lawsuit in either state or

federal court. Williams v. Huff, 52 S.W.3d 171, 178 (Tex. 2001). The test for standing

in Texas asks whether a real controversy exists between the parties and whether that

controversy can be resolved by the judicial declaration sought. See Austin Nursing

Ctr., 171 S.W.3d at 840; Tex. Ass’n of Bus., 852 S.W.2d at 443-44. This test is



                                           -8-
satisfied if the plaintiff can “demonstrate that he or she possesses an interest in a

conflict distinct from that of the general public, such that the defendant’s actions

have caused the plaintiff some particular injury.” Williams, 52 S.W.3d at 178

(emphasis added).

      Occasionally, however, courts and litigants also use the word “standing” as

shorthand to describe whether a person has a right to recover under a contract. See,

e.g., Yasuda Fire & Marine Ins. Co. of Am. v. Criaco, 225 S.W.3d 894, 898 (Tex.

App.–Houston [14th Dist.] 2007, no pet.). But unlike true jurisdictional standing, a

lack of “standing” to sue under a contract will not deprive the trial court of power to

hear the case—instead, contractual “standing” simply goes to the merits of the

plaintiff’s claim. See id. A court cannot properly dismiss a claim for lack of subject

matter jurisdiction on the basis that the plaintiff lacks “standing” to sue under a

contract. See id.; see also Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 160-61

(2010) (“‘Jurisdiction’ refers to a court’s adjudicatory authority. Accordingly, the term

‘jurisdictional’ properly applies only to prescriptions delineating the classes of cases

(subject-matter jurisdiction) and the persons (personal jurisdiction) implicating that

authority.”) (internal quotation marks and citations omitted).




                                           -9-
             2.     Raub’s pleadings demonstrated that he has standing to sue
                    Gate Guard for its wrongful conduct.

      “A plaintiff has standing when it is personally aggrieved, regardless of whether

it is acting with legal authority.” Nootsie, Ltd. v. Williamson County Appraisal Dist.,

925 S.W.2d 659, 661 (Tex. 1996). Raub’s pleadings alleged that he suffered a

particularized injury—i.e., an injury that was personal to him—as a result of Gate

Guard’s decision to (a) tortiously interfere with Raub’s existing contract with Craft;

(b) conspire with Craft and Henry to accomplish an unlawful purpose; (c) make

material and false representations directly to Raub, upon which Raub then justifiably

relied; and (d) promise Raub that his interest in the Craft lawsuit would be addressed

in any settlement agreement or final judgment. CR 9-10. He also contended that this

injury would be remedied by “the judicial declaration sought”: compensatory and

exemplary damages. CR 10.

      In other words, Raub’s pleadings alleged that a real controversy existed

between him and Gate Guard and that he suffered personal harm as a result; that the

controversy resulted from Gate Guard’s own actions; and the court had the power to

resolve that dispute. See CR 9-10; Austin Nursing Ctr., 171 S.W.3d at 840; Nootsie,

Ltd., 925 S.W.2d at 661; see also Tex. Const. art. V, § 8 (Texas district courts are

courts of general jurisdiction); Tex. Gov’t Code Ann. § 25.1802(a)(1) (Lexis 2013)



                                         -10-
(the county courts at law of Nueces County have “the jurisdiction provided by the

constitution and by general law for district courts”).

       These allegations—which the standard of review requires this Court to accept

as true—were sufficient to demonstrate that Raub “possesses an interest in a conflict

distinct from that of the general public, such that the defendant’s actions have caused

the plaintiff some particular injury.” Williams, 52 S.W.3d at 178. Accordingly, these

allegations demonstrated Raub’s standing to sue Gate Guard, and this Court should

reverse the trial court’s order granting Gate Guard’s plea to the jurisdiction. See id.

              3.     Gate Guard’s plea to the jurisdiction did not deny that Raub
                     had suffered a particularized injury, but instead complained
                     only that Raub had sued the wrong party.

       According to Gate Guard, the terms of its settlement agreement with

Craft—which included a promise from Craft that she would indemnify Gate Guard

against any claims Raub might assert against it in the future—mandated dismissal of

Raub’s lawsuit against it. 3 RR 13. Gate Guard based this assertion on its contention

that “as the litigants entitled to a release, [it was] justifiably entitled to rely upon the

fact that [Craft’s promise to indemnify Gate Guard against Raub’s claims] had been,

in fact, satisfied.” Id. Gate Guard also contended that Raub’s claims against it were

“derivative” of Craft’s claims against it because—at least according to Gate

Guard—those claims arose solely out of Raub’s contract with Craft. 2 CR 21-22. In

                                            -11-
other words, Gate Guard contended that the terms of both its contract with Craft—a

contract to which Raub was not a party because Gate Guard and Craft made sure he

would not be—and Raub’s contract with Craft meant that Raub only had “standing”

to sue Craft, not Gate Guard. See id.; see also 3 RR 14 (“I don’t have the wherewithal,

Your Honor, to understand why it is that Mr. Raub has chosen to sue parties with

whom he has no contractual privity[.]”).3 But by asserting that Raub sued the “wrong”

party, Gate Guard incorrectly conflated jurisdictional standing—which goes to the

court’s power to hear Raub’s claims—with contractual “standing,” which may affect

Raub’s right to recover on his claims but cannot deprive the court of power to decide

those claims. See Yasuda Fire, 225 S.W.3d at 898.

       The Fourteenth Court of Appeals in Houston recently rejected an argument

almost identical to Gate Guard’s in another case regarding a law firm’s right to collect

its fees. See Sammons & Berry, P.C. v. Nat’l Indemnity Co., No. 14-13-00070-CV,

2014 WL 3400713, at *3 (Tex. App.–Houston [14th Dist.] July 10, 2014, no pet.)

(mem. op.). In Sammons, a law firm sued an insurance company to recover attorneys’


       3
         Gate Guard’s complaint that it lacks “contractual privity” with Raub is unavailing, because
Raub sued Gate Guard on tort theories of liability, not for breach of contract. CR 9-10. Furthermore,
Gate Guard’s “contractual privity” argument is wholly at odds with its insistence that Raub’s right
to recover against it is somehow foreclosed by the terms of Craft’s promise to indemnify Gate Guard
against Raub’s claims. See 3 RR 14 (“The release that both [Craft] and [Henry], as her counsel,
executed addressed by name their responsibility to address Mr. Raub’s claimed interest; and quite
frankly, in executing and returning that, my clients, as the litigants entitled to a release, were
justifiably entitled to rely upon the fact that that condition had been, in fact, satisfied.”).

                                                -12-
fees it was owed in connection with a former client’s lawsuit. See id. at *1. The

insurance company defendant argued, inter alia, that the law firm lacked standing to

sue it, and the trial court agreed. See id.

       The Fourteenth Court rejected this conclusion and held that the law firm did

have standing to sue the insurance company.4 See id. It noted that the Sammons

defendant did not “base its challenge to jurisdiction on a lack of a real controversy

regarding [the law firm’s] entitlement to attorneys’ fees, but instead contends [the law

firm] has sued the wrong party.” See id. at *3. The court then concluded:

       We need not decide whether [the defendant] is correct that [the law firm]
       may maintain suit solely against its former client because this
       contention relates to [the law firm’s] entitlement to the remedy
       sought, not the court’s adjudicatory authority. Because [the
       defendant’s] contention does not deprive the trial court of subject-matter
       jurisdiction, we conclude it does not support dismissal.

Id. at *3 (emphasis added). This conclusion is consistent with a similar holding from

the First Court of Appeals in Houston, which has concluded that in a case like this

one, an attorney in Raub’s position may recover from a defendant tortfeasor as a

matter of law if the evidence shows the tortfeasor “had actual knowledge of [the

original attorney’s] interest, but chose to disregard it and make payment only to the


       4
        Although the Houston Court of Appeals held the law firm had standing to sue the insurance
company, it refused to reinstate the law firm’s suit because it held that the trial court properly
dismissed the case on the basis of forum non conveniens. Sammons, 2014 WL 3400713 at *1. Unlike
in Sammons, however, there are no forum non conveniens problems at issue in this lawsuit.

                                              -13-
[plaintiff] and [the plaintiff’s new lawyer].” Honeycutt v. Billingsley, 992 S.W.2d 570,

585 (Tex. App.–Houston [1st Dist.] 1999, pet. denied).5

       Here, as in Sammons, the only argument Gate Guard asserted to support its

standing argument was its contention that Raub sued the “wrong” party. Compare CR

21-22, with Sammons, 2014 WL 3400713 at *3. This allegation is absurd on its face,

because Raub sued Gate Guard for its own wrongful actions. CR 9-10. But even if

Gate Guard’s allegation were correct, it was not sufficient to deprive the trial court of

subject matter jurisdiction on the basis of standing because that argument goes to the

merits of Raub’s claims, not to his right to request relief for those claims or the court’s

power to hear them. Yasuda Fire, 225 S.W.3d at 898; Honeycutt, 992 S.W.2d at 585;

Sammons, 2014 Tex. App. LEXIS 7470 at *8-9. Furthermore, Gate Guard itself

recognized that a lack of capacity to sue or be sued is an affirmative defense to suit,

not a jurisdictional bar to the court’s power to hear a claim. CR 22-25 (the affirmative

defenses in Gate Guard’s original answer to Raub’s lawsuit, denying, inter alia, both

Raub’s capacity to sue Gate Guard and Gate Guard’s liability in the capacity in which

Raub sued it). Finally, Gate Guard did not even attempt to dispute that Raub


       5
        In Berry, this Court distinguished Honeycutt on the basis that “all parties involved [in
Honeycutt], including the defendant, were apparently on notice of the referral and contingent fee
agreement.” Berry, 2006 WL 1280901 at *3 (citing Honeycutt, 992 S.W.2d at 574-75). Here, the
evidence shows that Gate Guard was indisputably on notice of Raub’s contingent fee agreement with
Craft well before it cut a settlement check to Craft and Henry. CR 56; CR 60.

                                              -14-
“possesses an interest in a conflict distinct from that of the general public, such that

the defendant’s actions have caused the plaintiff some particular injury.” Compare

Williams, 52 S.W.3d at 178, and Honeycutt, 992 S.W.2d at 585, with CR 21-22. As

a result, Gate Guard failed to show that Raub lacked standing to sue it, and the trial

court should have denied Gate Guard’s plea to the jurisdiction. See id.

      B.     Berry Does Not Apply To The Facts Of This Case.

             1.     Berry involved derivative claims and relied on a Supreme
                    Court opinion that involved derivative claims. This case
                    does not involve a derivative claim.

      In the trial court, Gate Guard argued that this Court’s opinion in Berry v.

Nueces County mandated dismissal of Raub’s claims against it. CR 21-22; 3 RR 11.

In Berry, an attorney filed a petition in intervention after a settlement agreement

between his former client and the defendant. Berry, 2006 WL 1280901 at *1. The

attorney argued that his client and the defendant were jointly and severally liable for

attorneys’ fees he was entitled to under his contract with the client, but he did not

assert any independent tort claims against the defendant. See id. The defendant filed

a plea to the jurisdiction “alleging various defenses that would defeat the trial court’s

jurisdiction,” including claims of governmental immunity. See id. The defendant did

not, however, question the attorney’s standing to being suit against it. See id. The trial




                                           -15-
court granted the defendant’s plea to the jurisdiction, and the attorney appealed to this

Court. See id.

      A divided panel of this Court vacated the trial court’s order granting the

defendant’s plea to the jurisdiction. Id. at *4. However, the Court did not reinstate the

attorney’s lawsuit; instead, it dismissed his claims on the basis that he lacked standing

to assert those claims against the defendant. Id. The Court concluded that the attorney

in Berry lacked standing to sue the defendant tortfeasor because “the attorney-client

relationship is one of contract, and the attorney’s rights are wholly derivative from

those of his client. Thus, once dismissed by his client, the attorney may sue that client,

but no longer has a cause of action to assert against the opposing party[.]” Berry,2006

WL 1280901 at *2 (internal citation omitted).

      In reaching this conclusion, the Court relied heavily on the Texas Supreme

Court’s opinion in Dow Chemical Co. v. Benton. See id. at *2-3 (citing Dow Chem.

Co. v. Benton, 357 S.W.2d 565 (Tex. 1962)). In Dow, the defendant moved to dismiss

a plaintiff’s lawsuit against it as a sanction because the plaintiff failed to appear for

his deposition. Dow, 357 S.W.2d at 566. The plaintiff’s attorneys then filed a petition

in intervention seeking to prosecute the plaintiff’s claims so they could recover their

contingent fee interest. See id. The Supreme Court held that the attorneys lacked

standing to do so because “we have never held that the [client’s] cause of action is

                                           -16-
divisible and may be tried for only a percentage of the cause of action”—i.e., the

attorneys’ fees alone. Dow, 357 S.W.2d at 567.

      This Court’s conclusion in Berry and the Supreme Court’s conclusion in Dow

made perfect sense within the context of those cases, because those lawyers’ claims

arose solely out of their clients’ contractual duties to them, not any independent

wrongdoing the defendants had committed against the attorneys. See Dow, 357

S.W.2d at 566; Berry, 2006 WL 1280901 at *1. Both the Berry attorneys and the Dow

attorneys simply sought to collect their contingent fees from the defendants—either

jointly and severally with the client, as in Berry, or in lieu of the client, as in Dow—

even though they did not assert that the defendants had independently harmed them

rather than the clients. See id. In fact, the attorneys in Dow specifically sought

permission “to prosecute the same claim [as their former client] to secure their

contingent fee” even after the client’s lawsuit had been dismissed. Dow, 357 S.W.3d

at 566 (emphasis added). In other words, the claims raised by the attorneys in Dow

and Berry were completely dependent on the defendants’ tort liability to the clients,

not any independent tort liability to the attorneys themselves. See Dow, 357 S.W.3d

at 566; Berry, 2006 WL 1280901 at *1.

      The opposite is true here. Unlike the attorneys in Berry and Dow, Raub has

asserted independent tort claims against Gate Guard that complain of Gate Guard’s

                                          -17-
actions toward Raub, not its actions toward Craft. CR 9-10. Raub alleged that Gate

Guard committed tortious acts directly against Raub that caused him to suffer an

individualized injury. CR 9-10. Specifically, he alleged that Gate Guard knew he had

an interest in the outcome of Craft’s lawsuit and explicitly promised him that his

interest would be “addressed” in any settlement or judgment it reached with Craft, but

nevertheless deliberately disregarded his interests during the settlement with Craft. CR

9-10; CR 56; see also Honeycutt, 992 S.W.2d at 584-85. These claims cannot be

“derivative” of Craft’s claims against Gate Guard because they have nothing to do

with Craft or her claims against Gate Guard. CR 9-10.

      Raub’s claim against Gate Guard—that Raub suffered an injury because of Gate

Guard’s actions toward him—is all that is required to trigger the trial court’s power

to hear the lawsuit that arose out of those acts. See, e.g., Williams, 52 S.W.3d at 178.

Because this fact was not present in either Berry or Dow, those cases are

distinguishable from this one and cannot control the outcome here. See, e.g., Terrell

v. Pampa Indep. Sch. Dist., 345 S.W.3d 641, 644 (Tex. App.–Amarillo 2011, pet.

denied); Burris v. Metro. Transit Auth., 266 S.W.3d 16, 22 (Tex. App.–Houston [1st

Dist.] 2008, no pet.); Rogers v. Duke, 766 S.W.2d 547, 549 (Tex. App.–Houston [1st

Dist.] 1989, no writ).




                                          -18-
             2.     Because this case involves a “secret settlement,” the
                    outcome here is dictated by the Supreme Court’s opinion in
                    Ginther, not this Court’s opinion in Berry.

      Despite what Gate Guard urged the trial court to believe, the fact that the

amount of Raub’s damages—but not the fact of Gate Guard’s liability for that

amount—can be traced to his contract with Craft does not negate that Raub would not

have suffered those damages in the first place if Gate Guard had not committed the

acts alleged in Raub’s lawsuit. Compare CR 9-10 with Berry, 2006 WL 1280901 at

*1. In fact, the Texas Supreme Court has held that a defendant like Gate Guard—one

who knows of the attorney’s contingent fee interest and nevertheless decides to settle

with and pay the client behind the attorney’s back—puts itself in the position “of any

other person paying a debt to the original creditor instead of an assignee whose rights

were known.” Galveston, H. & S. A. Ry. Co. v. Ginther, 72 S.W. 166, 167 (Tex. 1903).

This Court actually took note of the Ginther opinion in Berry, and distinguished that

case by recognizing that Berry “[did] not present a case in which the parties

themselves arrange a secret settlement in order to defraud their own attorneys.” Berry,

2006 WL 1280901 at *3 (citing Ginther, 72 S.W. at 167).

      Berry may not have presented a case of a “secret settlement,” but this case does.

CR 9-10. For this reason, as the Court itself recognized in Berry, this case must be

decided under the Supreme Court’s ruling in Ginther. See Ginther, 72 S.W. at 167;

                                         -19-
Berry, 2006 WL 1280901. And Ginther holds that because Gate Guard was aware of

Raub’s interest in the outcome of Craft’s lawsuit, Raub’s rights against Gate Guard

“could not be defeated by payment to [Craft].” Ginther, 72 S.W. at 167.

             3.     Despite Gate Guard’s exclusive reliance on Berry, that case
                    is so distinguishable from these facts as to make it
                    essentially worthless for the resolution of this dispute.

      Berry was the only authority Gate Guard presented in support of its assertion

that Raub lacked standing to sue it. CR 21; 3 RR 11, 12, 17. But despite Gate Guard’s

exclusive reliance on Berry, it is easily distinguishable from the facts at issue here:

         Berry v. Nueces County                        Raub v. Gate Guard
 After an attorney’s former client fired     After Raub’s former client, Craft, fired
 him, he intervened in her lawsuit to        him, he intervened in her lawsuit to
 protect his claim for attorney’s fees       protect his claim for attorney’s fees (CR
 (2006 WL 1280901 at *1).                    139-42).
 With the help of her new attorney, the With the help of her new attorney, Craft
 client amicably settled with the amicably settled with the tortfeasor, Gate
 defendant (2006 WL 1280901 at *1).     Guard (CR 58-62).
 The defendant “did not have knowledge       Gate Guard sent Raub written
 that [the attorney] might assert a claim    acknowledgment that Raub’s “claimed
 against it instead of [the client]” (2006   interest must be addressed in connection
 WL 1280901 at *3).                          with any settlement agreement reached
                                             with Ms. Craft and [Henry].” (CR 56).




                                          -20-
The defendant’s settlement agreement         Gate Guard’s settlement agreement with
with the client provided that the client     Craft explicitly required Craft to
“had not ‘assigned, authorized, or           indemnify Gate Guard against “any lien
transferred . . . any claims . . . of any    applicable to or attorneys’ fee interest in
kind or character, which Plaintiff has or    the settlement amount reference herein
may have had against one or more             held or claimed by Timothy D. Raub or
Defendants, except to the extent of any      the Raub Law Firm, P.C.” (CR 60).
agreement between Plaintiff and her
current attorney(s).” (2006 WL 1280901
at *1 n.2).
The client’s new attorney informed er        Neither Gate Guard nor Craft informed
former attorney about the settlement         Raub about the settlement (CR 7; see
with the defendant (2006 WL 1280901          also 3 RR 9 (Gate Guard’s attorney’s
at *1).                                      recognition in the trial court that
                                             “[Craft’s] claim was settled. There is a
                                             number of allegations regarding the
                                             timing and who told what to whom,
                                             some of which, quite frankly, I don’t
                                             disagree with[.]”).
After being informed about the               Raub did not file a second intervention,
settlement, the attorney filed a second      because he did not know about the
petition in intervention arguing that the    settlement until two months after the
client and the defendant were jointly and    trial court entered a judgment dismissing
severally liable for the attorney’s          Craft’s lawsuit (CR 7; 3 RR 20-21).
claimed attorneys’ fees out of the
settlement (2006 WL 1280901 at *1).
The defendant filed its plea to the          Gate Guard filed a plea to the
jurisdiction in response to the attorney’s   jurisdiction arguing that Raub did not
second petition in intervention, which       have standing to seek relief on his claims
merely repeated his contractual right to     based on Gate Guard’s own wholly
attorney’s fees and did not assert any       independent wrongdoing against Raub
independent claims against the               (Compare CR 8-10 with CR 21-22).
defendant (2006 WL 1280901 at *1).




                                         -21-
 This Court noted that the attorney’s      Raub explicitly alleged that “Craft, Gate
 claims against the defendant “[did] not   Guard and Smith entered into a secretive
 present a case in which the parties       release and settlement agreement
 themselves arrange a secret settlement in pertaining to all claims alleged by Craft
 order to defraud their own attorneys.”    in the Lawsuit” and that “[t]he
 (2006 WL 1280901 at *3).                  mediation, settlement of the Lawsuit, the
                                           submission of the final judgment and the
                                           entry by the court . . . were deliberately
                                           concealed from Raub by Craft, Gate
                                           Guard and Smith by and through their
                                           attorneys[.]” (CR 7-8).
      A prior case that is factually distinguishable from the present case is not

controlling authority that mandates a certain result. See, e.g., Terrell, 345 S.W.3d at

644; Burris, 266 S.W.3d at 22; Rogers, 766 S.W.2d at 549. The factual situation

presented in Berry is simply too different from these facts to offer any help to the

Court in resolving this dispute. As a result, this Court’s opinion in Berry does not

mandate the dismissal of Raub’s lawsuit. Cf. Burris, 266 S.W.3d at 22.

      C.     Gate Guard’s Standing Arguments Are Belied By Its Own
             Actions In This Case.

             1.     If Gate Guard cannot be liable to Raub because Raub lacks
                    standing to sue it, then the indemnity agreement between
                    Gate Guard, Craft, and Henry is essentially meaningless.

      Gate Guard’s settlement agreement with Craft includes an indemnity clause that

specifically references Raub’s claims. CR 60. That indemnity clause requires Craft

and Henry to “indemnify, defend and hold and save harmless (at my sole cost and

expense, including attorneys’ fees) [Gate Guard] from . . . any lien applicable to or

                                         -22-
attorneys’ fee interest in the settlement amount . . . held or claimed by [Raub].” Id.

The broad language of this clause “evidences an agreement to indemnify [Gate Guard]

against liability” to Raub. See Ingersoll-Rand Co. v. Valero Energy Corp., 997 S.W.2d

203, 207 (Tex. 1999). The clause therefore entitles Gate Guard to recover from Craft

and Henry “when the liability becomes fixed and certain, as by rendition of a

judgment.” Id. In other words, this clause ensured that if Raub sued Gate Guard and

won, Craft and Henry would then be liable to Gate Guard for any judgment Gate

Guard was ordered to pay Raub. Compare id. with CR 60.

      Gate Guard recognized the existence and purpose of this clause when it filed

a third-party petition against Craft and Henry in Raub’s lawsuit. CR 25-27. Gate

Guard did not, however, offer the trial court any reason why it would have done so if

the indemnity clause would never be triggered—i.e., if Raub had no right to sue Gate

Guard at all, and Craft and Henry’s liability under the indemnity clause could

therefore never “become[] fixed and certain.” See Ingersoll-Rand Co., 997 S.W.2d at

207 (a broad indemnity clause like this one is not triggered until “the liability becomes

fixed and certain”).

      Nor did Gate Guard offer the trial court any authority to support its assertion

that the existence of the indemnity clause somehow deprived Raub of standing to sue

Gate Guard. See, e.g., CR 13 (“The release that both [Craft] and [Henry], as her


                                          -23-
counsel, executed addressed by name their responsibility to address Mr. Raub’s

claimed interest[.]”). This is because no such authority exists. An indemnity clause

like this one cannot deprive a court of standing; all it does is establish Gate Guard’s

right to recover from Craft and Henry if Gate Guard is eventually found liable to

Raub. CR 60; cf. Ingersoll-Rand Co., 997 S.W.2d at 207. Because Gate Guard

obviously cannot be found liable to Raub if Raub has no standing to sue Gate Guard

in the first place, Gate Guard’s arguments in the trial court essentially contend that its

own indemnity clause is meaningless. 3 RR 13; Ingersoll-Rand Co., 997 S.W.2d at

207.

             2.     By pointing out that Raub lacks contractual privity with it,
                    Gate Guard implicitly recognized that Raub is not bound by
                    the indemnity agreement.

       An indemnity clause, by its very nature, is an agreement between parties to a

contract. See, e.g., Hudson v. Hinton, 435 S.W.2d 211, 214 (Tex. Civ. App.–Dallas

1968, no writ) (indemnity clauses are “construed by the application of ordinary rules

of [contract] construction”). If Gate Guard wanted Raub to be bound by any of the

contractual terms in the settlement agreement, it needed to make sure Raub was a

party to that agreement. See, e.g., Rapid Settlements, Ltd. v. Green, 294 S.W.3d 701,

706 (Tex. App.–Houston [1st Dist.] 2009, no pet.) (“It goes without saying that a

contract cannot bind a nonparty.”) (internal quotation marks omitted). It did not do so.


                                           -24-
3 RR 13 (Gate Guard’s argument in the trial court that Raub lacked “contractual

privity” with Gate Guard). In fact, the entire basis of Raub’s lawsuit against Gate

Guard is that it went out of its way to ensure Raub was not a party to the settlement

agreement. CR 9-10.

      Furthermore, because Gate Guard took pains to assure Raub that his interest

would be “addressed” during any settlement, it would be unjust to allow Gate Guard

to use the terms of that settlement to block Raub from obtaining a recovery here:

      Where one party has by his words or conduct made to the other a
      promise or assurance which was intended to affect the legal relations
      between them and to be acted on accordingly, then, once the other party
      has taken him at his word and acted on it, the party who gave the
      promise cannot afterward be allowed to revert to the previous
      relationship as if no such promise had been made. This does not create
      a contract where none existed before, but only prevents a party from
      insisting upon his strict legal rights when it would be unjust to allow him
      to enforce them.

Dairyland County Mut. Ins. Co. v. Estate of Basnight, 557 S.W.2d 597, 602 (Tex. Civ.

App.–Waco 1977, writ ref’d n.r.e.) (internal quotation marks omitted).

      In essence, Gate Guard told the trial court “Craft agreed to indemnify us if Raub

sued us, so now Raub has no right to sue us.” 3 RR 13-14. This argument evinces a

fundamental misunderstanding of the purpose and application of an indemnity clause.

See, e.g., Ingersoll-Rand Co., 997 S.W.2d at 207. For this reason, this Court should




                                         -25-
reject Gate Guard’s contention that the indemnity clause in its contract with Craft has

any bearing on Raub’s right to sue Gate Guard for its own wrongdoing.

                             CONCLUSION AND PRAYER

      Raub sued Gate Guard because Gate Guard took actions that caused him harm.

This is all that is required to establish standing. The trial court had the power to hear

that lawsuit, and this Court’s opinion in Berry did not hold otherwise. For these

reasons, Appellants Timothy D. Raub and Raub Law Firm, P.C. pray that this Court

will reverse the trial court’s January 30, 2015 order dismissing this cause for lack of

subject matter jurisdiction and remand this cause for trial. Appellants further pray for

any additional relief to which they may be entitled in law or equity.

                                                      Respectfully submitted,


                                                        /s/ Shannon K. Dunn
                                                      Beth Watkins
                                                      Texas Bar No. 24037675
                                                      Shannon K. Dunn
                                                      Texas Bar No. 24074162
                                                      LAW OFFICE OF BETH WATKINS
                                                      926 Chulie Drive
                                                      San Antonio, Texas 78216
                                                      (210) 225-6666– phone
                                                      (210) 225-2300– fax
                                                      Attorneys for Appellants
                                                      Timothy D. Raub and
                                                      Raub Law Firm, P.C.



                                          -26-
                             CERTIFICATE OF SERVICE

      I hereby certify that on April 27, 2015, a true and correct copy of this brief and
appendix was forwarded in accordance with rule 9.5 of the Texas Rules of Appellate
Procedure to the following counsel of record:

      Greg C. Wilkins
      Monica L. Wilkins
      ORGAIN BELL & TUCKER, LLP
      Post Office Box 1751
      Beaumont, Texas 77704
      (409) 838-6412– phone
      (409) 838-6959– fax
      gcw@obt.com
      mwilkins@obt.com




                                                        /s/ Shannon K. Dunn
                                                      Shannon K. Dunn
                                                      Attorney for Appellants




                                          -27-
                         CERTIFICATE OF COMPLIANCE

      Pursuant to Tex. R. App. P. 9.4(i)(3), undersigned counsel certifies that this

brief complies with the type-volume limitations of Tex. R. App. P. 9.4(i)(2).

      1. Exclusive of the portions exempted by Tex. R. App. P. 9.4(i)(1), this brief

contains 6,245 words printed in a proportionally spaced typeface.

      2. This brief is printed in a proportionally spaced, serif typeface using Times

New Roman 14 point font in text and Times New Roman 12 point font in footnotes

produced by Corel WordPerfect X6 software and converted to PDF format by Acrobat

Distiller 10.1.3.


                                                 /s/ Shannon K. Dunn
                                           Shannon K. Dunn
                                           Attorney for Appellants




                                        -28-
                                 APPENDIX
DOCUMENT                                                                  TAB

    January 30, 2015 Order granting Gate Guard’s plea to the jurisdiction . . 1




                                    -29-
                    Tab 1
           January 30, 2015 Order
granting Gate Guard’s plea to the jurisdiction
143
