Responding to a Texas Lawsuit Naming an LLC That Was Never Formed

Attorney Answer

File an answer before the deadline, and make sure it is the right kind of answer — because in Texas a general answer filed out of order can waive the very objections your mother needs to raise.

The deadline first. Under Tex. R. Civ. P. 99(b), a written answer must be on file by 10:00 a.m. on the Monday next after the expiration of 20 days after the date of service. If nothing is filed, Tex. R. Civ. P. 239 lets the plaintiff take a default judgment at any time after the answer is due. That is the whole answer to "what happens if she doesn't."

Now the part most people get wrong. Under Tex. R. Civ. P. 121 an answer constitutes an appearance, dispensing with the need for citation. So simply filing a general denial can concede issues your family wants to fight. The objections here — that the LLC never existed, and that your mother is not liable in the capacity in which she is sued — are raised by a verified denial under Tex. R. Civ. P. 93, sworn under oath, including Rule 93(1)-(2) (that a party is not entitled to recover in the capacity sued, or is not liable in the capacity in which sued) and Rule 93(5) (denying the alleged corporate or partnership existence or capacity). It must be verified and filed in due order. A lawyer should draft it.

On the underlying exposure: a deceased person's liabilities are pursued against her estate through its personal representative under Texas probate administration, not against next of kin personally. Being someone's daughter or sister does not make you liable for her debts. Note also that Tex. Civ. Prac. & Rem. Code § 71.004 — the section people quote in wrongful death cases — identifies who may bring the action, for the exclusive benefit of the surviving spouse, children and parents. It says nothing about who may be held liable as a defendant, so it does not answer your mother's exposure question.

As for countersuing for emotional distress: that is not the move here. A counterclaim by a defendant for grief over losing a relative in the same collision is a narrow and difficult claim in Texas, and it will not shorten or defeat the suit against your mother. The defenses above are the real work.

What you can do 1. Find the citation and the return of service and identify the exact date your mother was served — everything is measured from that date under Rule 99(b). 2. Hire a Texas defense lawyer this week, before filing anything. Filing the wrong paper first can waive the capacity objections. 3. Pull the Texas Secretary of State entity records showing no such LLC was ever formed, and save the search result. 4. Determine whether any probate estate has been opened for your aunt and whether a personal representative has been appointed; that is who the claim properly runs through. 5. Notify your aunt's auto liability insurer immediately if there was a policy — the insurer generally owes a defense, and a fatality claim belongs in front of it. 6. If a default judgment has already been entered, say so on the first call with the lawyer. There are post-judgment remedies for a defendant who was never properly served or never knew, and they run on their own short deadlines.

⏱ Time limits apply. The answer deadline in Tex. R. Civ. P. 99(b) is 10:00 a.m. on the Monday next after 20 days from service, and Tex. R. Civ. P. 239 permits a default the moment it passes. If a judgment has already been signed, the deadlines to attack it are short and run from dates specific to your case — have a lawyer calculate them immediately rather than counting days yourself.