Opinion

Court: Texas Court of Appeals, 3rd District (Austin)
Filed: Apr 26, 2001
Status: Published
Cited by: 0 cases
Authority: More cited than 35.9%

The opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-00-00661-CV

Union Pacific Corporation, Appellant

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.

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