
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-00-00661-CV





Union Pacific Corporation, Appellant


v.


Dan V. Legg, Jr. and Suzanne Legg, Individually, as the Surviving Parents of Ryan

Dustin Legg, Deceased and as Anticipated Administrators of the Estate

of Ryan Dustin Legg, Appellees






FROM THE DISTRICT COURT OF MILAM COUNTY, 20TH JUDICIAL DISTRICT

NO. 26,954, HONORABLE CHARLES E. LANCE, JUDGE PRESIDING






	Union Pacific Corporation appeals from a no-answer default judgment recovered
by Dan V. Legg, Jr., and Suzanne Legg ("the Leggs") on causes of action arising out of the death
of their son Ryan Dustin Legg in a train-automobile collision that occurred November 21, 1999,
in Rockdale, Texas.  We will reverse the judgment and remand the cause to the trial court.


THE CONTROVERSY
	In an original petition filed March 21, 2000, the Leggs alleged two causes of
action.  The first was a wrongful-death action to recover for losses sustained by them as a result
of their son's death.  In their alleged capacity "as the anticipated administrators of the Estate of
Ryan Dustin Legg," the Leggs also stated a survival cause of action for the pain, suffering, and
death suffered by Ryan.  See Gandara v. Slade, 832 S.W.2d 164, 167 (Tex. App.-Austin 1992,
no writ).  Each cause of action was founded upon the alleged negligence and gross negligence of
two defendants named in the Leggs' original petition, namely "Willie Bennie Baker and Union
Pacific Corporation."
	The district clerk issued a citation requiring service upon "Union Pacific Railroad,
by serving C. T. Corporation System, 350 N. St. Paul Street, Dallas, Texas 75201."
	Before either defendant appeared in the cause, the Leggs obtained, on April 17,
2000, a default judgment against the two named defendants, jointly and severally, in the apparent
amount of $70,824,424. (1)
	In an original answer filed April 24, 2000, Union Pacific Railroad Company
appeared in the cause.  The record does not indicate that a citation was ever issued, directed to,
or served upon Union Pacific Corporation, the defendant named in the Leggs' petition, or upon
Union Pacific Railroad Company, which filed a post-judgment answer on April 24, 2000.
	Union Pacific Corporation and Willie Bennie Walker first appeared in the cause on
May 16, 2000, by filing a joint motion to set aside the default judgment and to obtain a new trial. 
The motion states that Walker was "incorrectly named Willie Bennie Baker" in the Leggs'
original petition and that Union Pacific Corporation was "incorrectly served as Union Pacific
Railroad."  The motion set out legal and equitable grounds for the relief requested, most of which
are brought forward in this appeal.  In orders signed June 16, 2000, the trial judge ordered a new
trial for "Willie Bennie Baker," severed the Leggs' actions against him, and denied the relief
requested by Union Pacific Corporation.
	Union Pacific Corporation perfected an appeal to this court, contending the citation
and its return were fatally defective and therefore insufficient for the trial court to acquire personal
jurisdiction over the corporation; that the trial court erred in denying the corporation's equitable
motion for new trial under Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124 (Tex. 1939);
that the Leggs lacked standing to assert Ryan's survival cause of action; and various other
complaints of reversible error.  Because we believe the face of the record does not demonstrate
the trial court acquired personal jurisdiction over Union Pacific Corporation, owing to a want of
strict compliance with the rules governing issuance, service, and return of citation, we will
consider and discuss only that aspect of the default judgment.
ISSUANCE, SERVICE, AND RETURN OF CITATION
	In addition to "Willie Bennie Baker," the Leggs' original petition designated Union
Pacific Corporation as the only other defendant.  It appears to be undisputed that Union Pacific
Corporation is a corporation organized and existing under the laws of the State of Utah; that the
train was owned and operated, at the time of the collision, by Union Pacific Railroad Company,
a Delaware corporation and a wholly owned subsidiary of Union Pacific Corporation; and that
Willie Bennie Walker was the train engineer at the time.  Insofar as the Leggs' original petition
is concerned, however, the only defendants are Willie Bennie Baker and Union Pacific
Corporation.  Nothing therein suggests a theory upon which Union Pacific Corporation is
vicariously liable for the acts or omissions of Union Pacific Railroad or Union Pacific Railroad
Company, neither of which is mentioned in the petition.
	The Leggs' petition requested that Willie Bennie Baker and Union Pacific
Corporation "be duly cited to appear and answer" in the cause.  Nothing else pertaining to the
Baker citation is in our record.  The record before us contains a copy of a single citation.  It is
directed to "Union Pacific Railroad, by serving C. T. Corporation System, 350 North St. Paul
Street, Dallas, Texas 75201."  Our copy does not show a seal (2) but states the citation was issued
at Cameron, Texas, on March 21, 2000.  The citation bears the signature of "Cindy (illegible),"a
deputy clerk of the district court.
	We will set forth in its entirety the return of citation found in our appellate record. 
It is as follows:

No. 26,954

Dan V. Legg, Jr., et al.				In the District Court

vs.						of Milam County, Texas

Willie Bennie Baker, et al.				20th Judicial District

Notice Given to Defendant by Sending a True and Correct Copy of:


Citation
 Copy of Plaintiffs' Original Petition

by depositing the said instrument in a postpaid properly addressed wrapper in a
post office under the care and custody of the United States Postal Service, same
being sent by Certified Mail, Return Receipt Requested, to Defendant Union
Pacific Railroad, by Serving C. T. Corporation System, 350 N. St. Paul Street,
Dallas, Texas 75201.

Said notice was deposited in a post office in Cameron, Texas, on the 22nd day of
March 2000.  Further attached hereto is the receipt of certified mail no. P970 208
736 indicating the number and address of the mailing described herein.

					Betty Robertson
					Clerk, District Court
					By /s/ Cindy (Illegible)
					Deputy
	The appellate record includes a photocopy of each side of the Postal Service Form
3811, titled "Receipt for Certified Mail," referred to in the return.  The receipt was addressed by
the clerk as follows:

Union Pacific Railroad
C. T. Corporation System
350 North St. Paul Street
Dallas, Texas 75201


The receipt bears a postal-service postmark of March 22, 2000.  The reverse of the receipt shows
the same addressees.  Section 5 of the form, headed "Received By: (Print Name)," is blank. 
Section 6, headed "Signature: Addressee or Agent," contains the stamped legend "C. T. Corp
Systems" in block letters, but no signature in the form of a handwritten signature.  Section 7 of
the receipt, headed "Date of Delivery," bears the handwritten numbers "3/24."
	It is evident that the deputy clerk attempted service and return of the citation by
certified mail, return receipt requested; and, we find in the record no basis for believing the return
receipt was not attached to the return.  See Tex. R. Civ. P. 103, 105, 106, 107. (3)
	Our appellate record indicates the citation was "issued March 21, 2000," but
nothing in the record indicates that the citation, the return, or the certified-mail receipt were ever
filed in the cause.  None bears the district clerk's file mark.

DISCUSSION AND HOLDINGS
	Familiar precepts govern our review in this direct appeal from the default judgment
taken below.

[T]here are no presumptions in favor of valid service of process. . . .  A judgment
under direct attack must be reversed unless jurisdiction of the court to render the
judgment appears on the face of the record. . . .  If strict compliance is not
affirmatively shown, the service of process is invalid and has no effect. . . .  In
order for a default judgment to withstand direct attack, strict compliance with the
rules of civil procedure relating to the manner and mode of service of citation 
must appear on the face of the record.


Renaissance Park & Renaissance Park Apartments v. Davila, 27 S.W.3d 252, 255 (Tex.
App.-Austin 2000, no pet.) (citations omitted); see also Whitney v. L. & L. Realty Corp., 500
S.W.2d 94, 97 (Tex. 1973).  "For well over a century, [the supreme] court has required that strict
compliance with the rules for service of citation affirmatively appear on the record in order for
a default judgment to withstand direct attack."  Primate Constr., Inc. v. Silver, 884 S.W.2d 151,
152 (Tex. 1994).  Concerning the requisite return of citation, the same court has said:

The return of service is not a trivial, formulaic document.  It has long been
considered prima facie evidence of the facts recited therein. . . .  The recitations
in the return of service carry so much weight that they cannot be rebutted by the
uncorroborated proof of the moving party. . . .  The weight given to the return is
no less when the recitations impeach the judgment than when they support it . . . . 
It is the responsibility of the one requesting service, not the process server, to see
that service is properly accomplished.  Tex. R. Civ. P. 99(a).  This responsibility
extends to seeing that service is properly reflected in the record.  The Rules of
Civil Procedure allow for liberal amendment of the return of service to show the
true facts of service.  Tex. R. Civ. P. 118.  If the facts as recited in the [officer's]
return . . . are incorrect and do not show proper service, the one requesting service
must amend the return prior to judgment.


Id., at 152-53 (citations omitted).
	We believe the appellate record does not demonstrate a strict, that is to say a literal,
compliance with the rules governing the issuance, service, and return of citation.  We should
preface our remarks by noting that the rules allow for liberal amendment of "any process or proof
of service" before a default judgment is taken.  See Tex. R. Civ. P. 118.  No such amendment
was attempted here.
	Rule 99 of the Texas Rules of Civil Procedure requires that citation "be directed
to the defendant."  Id. 99b(8) (emphasis added).  Although their petition named Union Pacific
Corporation as the correct or intended defendant, the Leggs procured service of a citation directed
to Union Pacific Railroad.  Union Pacific Corporation contends this was a fatally defective
misidentification of the defendant.  The Leggs contend Union Pacific Railroad was simply a
misnomer that was not shown to mislead or prejudice Union Pacific Corporation.  See Chilkewitz
v. Hyson, 22 S.W.3d 825, 828 (Tex. 1999); Ensearch Corp. v. Parker, 794 S.W.2d 2, 4-5 (Tex.
1990).
	A misnomer occurs when a plaintiff intends to sue the correct defendant (Union
Pacific Corporation in this instance); misnames him in the petition, citation, or both; describes
events in the petition in such a way that the correct defendant, when he receives service thereof,
is apprised of the fact that he is the intended defendant; "and, most important of all, . . . the
intended defendant is actually served with citation."  Susan Jean Miller, Misnomer: Default
Judgments and Strict Compliance with Service of Process Rules, 46 Baylor L. Rev. 633, 634
(1994) (emphasis added).  "The doctrine of strict compliance considers whether the record shows
that exact procedural requirements are met, not whether the intended party received notice of the
lawsuit."  Id. at 642 (emphasis added).  The controlling issue in this appeal is, therefore, whether
the record shows an exact compliance with the rules that govern the issuance, service, and return
of citation.  That issue should not be synthesized and confused with the question of misnomer. 
See id., passim.
	The Leggs' original petition identified the defendant as Union Pacific Corporation. 
The petition does not suggest that Union Pacific Corporation and Union Pacific Railroad (named
in the citation and return) are one and the same, or that the latter is a trade name employed by the
former.  Moreover, Union Pacific Corporation is described in the Leggs' petition as a Utah
corporation while the character of Union Pacific Railroad is not shown in the record.
	The record shows only that Union Pacific Railroad Company, a Delaware
Corporation,  received service of a citation directed to it by that name, together with a copy of
a petition in which it was not named as a defendant.  See Primate Const. Co. v. Silver, 884
S.W.2d at 152; Verlander Enters., Inc. v. Graham, 932 S.W.2d 259, 261 (Tex. App.-El Paso
1996, no writ).  The record does not show the issuance, service, and return of a citation directed
to Union Pacific Corporation, the defendant named in the petition.  The only citation in the record
is therefore fatally defective under Rule 99 for failing to name the correct defendant.  See Uvalde
Country Club v. Martin Linen Supply Co., 690 S.W.2d 884-85 (Tex. 1985); Hendon v. Pugh, 46
Tex. 211, 212 (1876); Faver v. Robinson, 46 Tex. 204 (1876); Pharmakinetics Lab., Inc. v. Katz,
717 S.W.2d 704, 706 (Tex. App.-San Antonio 1986, no writ); Brown-McKee, Inc. v. J. F. Bryan
& Assoc., 522 S.W.2d 958, 959 (Tex. Civ. App.-Texarkana 1975, no writ).  We hold
accordingly.  The record, however, reveals other fatal defects.
	Rule 107 of the Texas Rules of Civil Procedure prohibits the granting of a "default
judgment until the citation . . . shall have been on file with the clerk of the court ten days,
exclusive of the day of filing and the day of judgment.  Tex. R. Civ. P. 107 (emphasis added). 
The clerk's return of the citation directed to Union Pacific Railroad and the accompanying
certified-mail receipt do not bear a file mark or other indication that they were in fact filed with
the clerk on a particular day, or that they were, indeed, filed at all.  Consequently, they do not
show they were "on file" for the requisite ten days before default judgment was granted.  We hold
this violates the strict-compliance requirement.  See Onyx TV v. The TV Strategy Group, LLC, 990
S.W.2d 427, 431 (Tex. App.-Texarkana 1999, no pet.); HB & WM, Inc., v. Smith, 802 S.W.2d
279, 282 (Tex. App.-San Antonio 1990, no writ); Melendez v. John R. Schatzman, Inc., 685
S.W.2d 137, 138 (Tex. App.-El Paso 1985, no writ).  The default judgment declares the
"[c]itation was served according to law and returned to the clerk where it remained on file for the
time required by law."  This recitation in the default judgment does not cure the defect in
question.  Personal jurisdiction over a defendant must appear affirmatively by a showing of due
service and return of process independent of recitations in a judgment taken by default.  See
Brown-McKee, Inc. v. J. F. Bryan & Associates, 522 S.W.2d at 959.
	Rule 107 also requires that the return receipt bear "the addressee's signature" when
service is by certified mail.  Tex. R. Civ. P. 107.  The return receipt in this instance bears only
a stamp rather than a handwritten signature, and a blank following the words "Received By: (Print
Name)."  We believe the return receipt does not bear the requisite addressee's signature.  A
stamped signature may be sufficient if shown to be authorized by proof in the record, but no such
proof appears here.  We hold the return fatally defective for the reason indicated.  See 14.9 Grams
of Methamphetamine v. State, 28 S.W.3d 146, 148 (Tex. App.-Texarkana 2000, no pet.); Fowler
v. Quinlan Indep. Sch. Dist., 963 S.W.2d 941, 943-44 n.2 (Tex. App.-Texarkana 1998, no pet.).
	Rule 124 prohibits rendition of judgment "against any defendant unless upon
service, or acceptance or waiver of process, or upon an appearance of the defendant" as
prescribed by the rules, except where otherwise expressly provided by law or the rules.  Tex. R.
Civ. P. 124 (emphasis added).  When the default judgment was taken here, the Leggs' petition
designated as defendants Union Pacific Corporation and "Willie Bennie Baker" and the default
judgment was taken against both.  The record does not reflect, however, that "Baker" had been
served with citation before the judgment was signed, or that there existed any of the exceptional
circumstances referred to in rule 124 with respect to service of process.  Consequently, the default
judgment cannot stand against Union Pacific Corporation.  See HB & WM, Inc. v. Smith, 802
S.W.2d at 282; Sindorf v. Cen-Tex Supply co., 172 S.W.2d 775, 776 (Tex. Civ. App.-El Paso
1943, no writ).  We hold accordingly.
	For the reasons stated, we reverse the judgment below and remand the cause to the
trial court.


  
					John E. Powers, Justice
Before Justices Yeakel, Patterson and Powers*
Reversed and Remanded
Filed:   April 26, 2001
Publish



















*	Before John E. Powers, Senior Justice (retired), Third Court of Appeals, sitting by assignment. 
See Tex. Gov't Code Ann. § 74.003(b) (West 1998).
1. 	The default judgment, signed on April 17, 2000, after an evidentiary hearing, recites
that the court found Willie Bennie Baker and Union Pacific Corporation jointly and severally
"indebted" to the Leggs "individually" and "as executors of the Estate of Ryan Dustin Legg,"
in various amounts set out in the judgment.  These sums total $72,762,804 but the decretal part
of the judgment awards the plaintiffs, in their representative and individual capacities, an
aggregate sum of $70,824,424.

	In an order signed June 16, 2000, the trial court granted the Leggs' motion to sever
their causes of action against Union Pacific Corporation and "Willie Bennie Walker, named as
Willie Bennie Baker" in the Leggs' original petition.  On the same day, evidently on his own
motion, the trial judge signed an "amended judgment" in which he found Union Pacific
Corporation, alone, "indebted" to the Leggs for various sums named in the "amended judgment." 
The decretal part of the "amended judgment" awards $50,608,582 to the Leggs, "individually"
and "as the executors of the Estate of Ryan Dustin Legg."

	The record is silent concerning the evolution of the Leggs from their status "as the
anticipated administrators of the Estate of Ryan Dustin Legg," as described in their original
petition, to their status as executors of Ryan's estate.  Nothing in the record shows their
appointment as administrators or executors.  The "amended judgment" finds the "Estate of Ryan
Dustin Legg" sustained a total of $5,855,273 in damages exclusive of any part of the prejudgment
interest and punitive damages awarded in the same instrument.  It is settled, of course, that an
estate is not a legal entity.  See Henson & Int'l Aero, Inc. v. Estate of Crow, 734 S.W.2d 648,
649 (Tex. 1987).
2. 	Rule 99 of the Texas Rules of Civil Procedure requires that the citation "be signed by
the clerk under seal of court."  Tex. R. Civ. P. 99(b); see Barker CATV Constr., Inc. v. Ampro,
Inc., 989 S.W.2d 789, 792 (Tex. App.-Houston [1st Dist.] 1999, no pet.); Verlander Enters.,
Inc. v. Graham, 932 S.W.2d 259, 262 (Tex. App.-El Paso 1996, no writ).  Because of other
errors found in the issuance, service, and return of citation, we will not pursue the question of
whether there was in fact a seal affixed to the original citation issued in the cause.
3. 	Rule 103 authorizes the clerk of the court, on request, to effect service of citation by
certified mail, return receipt requested.  Rule 106 authorizes service in that manner by mailing
to the defendant a true copy of the citation with a copy of the petition attached.  Rule 107 requires
that in such cases the return "contain the return receipt with the addressee's signature."  Rule 105
requires that "[t]he officer . . . to whom process is delivered shall endorse thereon the day and
hour on which he received it."  No such endorsement appears on the citation naming Union
Pacific Railroad a defendant.  Because the defects discussed in the text of our opinion are
sufficient to reverse the judgment, we need not discuss the applicability of Rule 105 in instances
where the clerk serves a citation by certified mail.

>, 802
S.W.2d at 282; Sindorf v. Cen-Tex Supply co., 172 S.W.2d 775, 776 (Tex. Civ. App.-El Paso
1943, no writ).  We hold accordingly.
	For the reasons stated, we reverse the judgment below and remand the cause to the
trial court.


  
					John E. Powers, Justice
Before Justices Yeakel, Patterson and Powers*
Reversed and Remanded
Filed:   April 26, 2001
Publish



















*	Before John E. Powers, Senior Justice (retired), Third Court of Appeals, sitting by assignment. 
See Tex. Gov't Code Ann. § 74.003(b) (West 1998).
1. 	The default judgment, signed on April 17, 2000, after an evidentiary hearing, recites
that the court found Willie Bennie Baker and Union Pacific Corporation jointly and severally
"indebted" to the Leggs "individually" and "as executors of the Estate of Ryan Dustin Legg,"
in various amounts set out in the judgment.  These sums total $72,762,804 but the decretal part
of the judgment awards the plaintiffs, in their representative and individual capacities, an
aggregate sum of $70,824,424.

	In an order signed June 16, 2000, the trial court granted the Leggs' motion to sever
their causes of action against Union Pacific Corporation and "Willie Bennie Walker, named as
Willie Bennie Baker" in the Leggs' original petition.  On the same day, evidently on his own
motion, the trial judge signed an "amended judgment" in which he found Union Pacific
Corporation, alone, "indebted" to the Leggs for various sums named in the "amended judgment." 
The decretal part of the "amended judgment" awards $50,608,582 to the Leggs, "individually"
and "as the executors of the Estate of Ryan Dustin Legg."

	The record is silent concerning the evolution of the Leggs from their status "as the
anticipated administrators of the Estate of Ryan Dustin Legg," as described in their original
petition, to their status as executors of Ryan's estate.  Nothing in the record shows their
appointment as administrators or executors.  The "amended judgment" finds the "Estate of Ryan
Dustin Legg" sustained a total of $5,855,273 in damages exclusive of any part of the prejudgment
interest and punitive damages awarded in the same instrument.  It is settled, of course, that an
estate is not a legal entity.  See Henson & Int'l Aero, Inc. v. Estate of Crow, 734 S.W.2d 648,
649 (Tex. 1987).
2. 	Rule 99 of the Texas Rules of Civil Procedure requires that the citation "be signed by
the clerk under seal of court."  Tex. R. Civ. P. 99(b); see Barker CATV Constr., Inc. v. Ampro,
Inc., 989 S.W.2d 789, 792 (Tex. App.-Houston [1st Dist.] 1999, no pet.); Verlander Enters.,
Inc. v. Graham, 932 S.W.2d 259, 262 (Tex. App.-El Paso 1996, no writ).  Because of other
errors found in the issuance, service, and return of citation, we will not pursue the question of
whether there was in fact a seal affixed to the original citation issued in the cause.
3. 	Rule 103 authorizes the clerk of the court, on request, to effect service of citation by
certified mail, return receipt requested.  Rule 106 authorizes service in that manner by mailing
to the defendant a true copy of the citation with a copy of the petition attached.  Rule 107 requires
that in such cases the return "contain the return receipt with the addressee's signature."  Rule 105
requires that "[t]he officer . . . to whom process is delivered shall endorse thereon the day and
hour on which he received it."  No such endor