Law School Case Brief
KB Tex. Invs., LLC v. Spiller - No. 01-16-00068-CV, 2017 Tex. App. LEXIS 711 (Tex. App. Jan. 26, 2017)
A plaintiff may substitute itself without leave of court if trial would not be delayed. The intentional omission of a plaintiff from a pleading dismisses the plaintiff from the suit as allowed under the Texas Rules of Civil Procedure: first, because an amended pleading supersedes earlier pleadings under Tex. R. Civ. P. 65; second, because parties may be dropped and added on their own initiative under Tex. R. Civ. P. 41; and third, because Tex. R. Civ. P. 37 allows the addition of parties unless the time or manner causes unreasonable delay. Therefore, a plaintiff may reasonably amend its pleadings to dismiss parties, including plaintiffs, from the suit.
In 1941, Roderick and Ann Marie’s great aunts, Sarah and Georgie, purchased a house on lot 35 with an existing shed, dirt driveway, and fence sequentially along the southern boundary of lot 36. In 1944, KB Investments, LLC purchased lot 36. In 2005, Roderick and Ann Marie became owners of the lot as they were successors-in-title to the aunts. After a series of disagreements regarding the borders, KB Investments, LLC sued Roderick and Ann Marie to remove an encroaching fence, driveway, and concrete slab, formerly a garage, and to settle a boundary dispute between the two lots. After the suit was filed, Lot 36 was transferred to KB Texas Investments, LLC from KB Investments, LLC. On December 16, 2014, KB Investments LLC, amended Plaintiff's First Amended Original Petition to list the plaintiff as KB Texas Investments, LLC. The Texas entity did not seek leave of court to substitute into the case or otherwise request court permission to change the plaintiff nor did Roderick and Ann Marie challenge the change in plaintiff. The jury found that Roderick, Ann Marie, and their predecessors in privity, the aunts, committed a hostile act to possess the disputed strip of land on August of 1941, and subsequently used the strip continuously and uninterrupted until June 18, 2013, when KB Texas filed suit. The trial court accepted the verdict, and rendered a judgment subsequent to Roderick and Ann Marie's motion for judgment against "KB INVESTMENTS, LLC, dba KB TEXAS INVESTMENTS, LLC." KB Texas filed both a judgment notwithstanding the verdict and a motion for new trial. The trial court denied both motions, and KB Texas timely appealed. On the other hand, in one cross-point, Roderick and Ann Marie argued KB Texas lacks standing because it is not the legal entity named in the lawsuit.
Did KB Texas Investments LLC lack standing as it did not seek leave of court to substitute into the case or otherwise request court permission to change the plaintiff?
The Court held that a plaintiff may substitute itself without leave of court if trial would not be delayed. As enunciated in Mercure Co., N.V. v. Rowland, a plaintiff may reasonably amend its pleadings to dismiss parties, including plaintiffs, from suit. Applying Mercure, KB Texas's addition to the amended petition added it to the lawsuit, and KB Investments, LLC's, omission from the petition dismissed it from the lawsuit. The Court held that this addition and subtraction, without leave of the trial court, was permissible and the record provided no evidence of delay. In the case at bar, the Court noted that Roderick and Ann Marie did not specifically object that the trial court's judgment was entered against, "KB INVESTMENTS, LLC, dba KB TEXAS INVESTMENTS, LLC," and not "KB Texas Investments, LLC. The Court averred that KB Texas’s misnomer as a dba did not prevent them from bring the current appeal. According to the Court, a misnomer in a judgment did not automatically invalidate a judgment.
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