Amended Petition Adding Publicly Traded Party After September 1, 2024 Does Not 'Commence' New Action for Business Court Jurisdiction
Read the Court's Opinion (PDF)
Chief Justice Scott Brister
The Fifteenth Court of Appeals denied mandamus relief to Kimco entities seeking to keep their case in the Business Court after being added as defendants via third-amended petition in September 2024, holding that a civil action 'commences' when originally filed, not when an amended petition adds a publicly traded company. The court rejected relators' argument that adding a publicly traded defendant after the September 1, 2024 effective date triggers Business Court jurisdiction, reaffirming its holding in In re ETC Field Services that removal or amendment does not commence a new civil action.
Background: Partnership Dispute and Late-Added Corporate Parent
Real party in interest Cypress Towne Center, Ltd. filed suit in Harris County district court in June 2022 against a general partner and a limited partner over interpretation of a limited partnership agreement. More than two years later, on September 20, 2024—twenty days after the Business Court's September 1, 2024 effective date—Cypress filed a third-amended petition adding Kimco Realty Corporation, a publicly traded company, asserting theories of vicarious liability, alter ego, and conspiracy against the corporate parent. Relators removed the case to Business Court Division 11A, but the Business Court remanded it back to district court. Relators sought mandamus relief from the Fifteenth Court of Appeals.
The Jurisdictional Question: When Does an Action 'Commence'?
The central issue was whether adding a publicly traded defendant after September 1, 2024 via amended petition satisfies the Business Court Act's effective date provision, which states that "changes in law made by this Act apply to civil actions commenced on or after September 1, 2024." Relators argued the case was distinguishable from the court's recent decision in In re ETC Field Services, LLC, 707 S.W.3d 924 (Tex. App.—15th Dist. 2025), contending that while removal does not commence a new action, "filing an amended petition after September 1, 2024, that adds a publicly-traded party and asserts new claims, bringing the entire action under the business court's jurisdiction," does. They emphasized that Government Code Section 25A.004(c) grants the Business Court jurisdiction "if a party to the action is a publicly traded company," and that Kimco Realty Corporation became such a party only after the effective date.
The Court's Analysis: Distinguishing 'Commenced' from 'Filed'
The court rejected relators' arguments as irreconcilable with ETC. The court emphasized the Legislature's deliberate word choice in the statutory text:
by using "commenced" only once in the effective date clause and "filed" over a dozen times in other parts of Chapter 25A, the Legislature meant to distinguish a civil action's original filing from later filings in both the trialcourts and the Business Court. The court concluded that this case was "on all fours" with ETC, where it held that removal "does not 'commence' a new civil action but simply transfers an existing one."
The court found that relators' argument "cannot be squared with our decision in ETC." While the opinion acknowledges relators' contention that "every dispute in this action falls within the categories enumerated in Subsection (b)" and that "for the first time on [September 20, 2024], a publicly traded company became 'a party to the action,'" the court determined these facts did not distinguish the case from its prior holding. The Legislature's use of "commenced" in the effective date provision refers to when the civil action was originally filed—here, June 2022—not to subsequent amendments adding new parties, even publicly traded ones.