Reversed and Remanded and Memorandum Opinion filed November 3, 2011.




                                        In The

                      Fourteenth Court of Appeals

                                 NO. 14-11-00232-CV

 RMS RESIDENTIAL PROPERTIES, LLC, ASSIGNEE OF ENCORE CREDIT
                     CORPORATION, Appellant

                                           V.

                A.M. MOLINA AKA ARLETTE MOLINA, Appellee

                      On Appeal from the 333rd District Court
                               Harris County, Texas
                         Trial Court Cause No. 2010-30712



                        MEMORANDUM OPINION

      Appellant, RMS Residential Properties, LLC, assignee of Encore Credit
Corporation, (―RMS‖) files this restricted appeal from a summary judgment against
appellee, A.M. Molina aka Arlette Molina. We reverse and remand.

                                   BACKGROUND

      On May 17, 2010, Molina filed suit against RMS for breach of contract,
declaratory relief and to quiet title, slander of credit, and violations of the Deceptive
Trade Practices Act. RMS did not answer or otherwise appear in the case.
       The petition states that ―RMS Residential Properties LLC is a Delaware
corporation that can be served by serving its registered agent Corporation Service
Company, 2711 Centerville Road Suite 400, Wilmington, Delaware 19808.‖ The citation
is directed to

       RMS RESIDENTIAL PROPERTIES LLC (AS ASSIGNEE OF ENCORE
       CREDIT CORPORATION) (DELAWARE CORPORATION) BY
       SERVING ITS REGISTERED AGENT
       CORPORATION SERVICE COMPANY
       2711 CENTERVILLE ROAD SUITE 400 WILMINGTON DE 19808.

The return provides as follows:

       Received on the 7 day of June, 2010, at 11:00 o’clock A.M., and executed
       the same in n New Castle County, Delaware on the 7 day of June, 2010, at
       3:13 o’clock P.M., by summoning the RMS Residential Properties LLC by
       leaving in the principal office during office hours with Sue Rhea, Managing
       Agent of the said Corporation Service Co., Registered Agent a true copy of
       this notice, together with accompanying copy of Plaintiff’s Original
       Petition.

The return was hand-written on a pre-printed form and sworn to by Daniel Newcomb
before a Notary Public from the State of Delaware.

       On July 12, 2010, Molina filed a summary judgment motion with an affidavit and
a notice setting submission for July 26, 2010. On August 19, 2010, the court granted the
summary judgment.       After neither participating in the proceedings nor filing post-
judgment motions, a request for findings of facts and conclusions of law, or a notice of
appeal, appellant filed a notice of restricted appeal on February 18, 2011.

                                       ANALYSIS

A.     Standard of Review

       RMS attacks the trial court’s judgment by restricted appeal. See Tex. R. App. P.
30. A direct attack on a judgment by restricted appeal must (1) be brought within six
months after the trial court signs the judgment, (2) by a party to the suit, (3) who did not

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participate in the actual trial, and (4) the error complained of must be apparent on the face
of the record. Norman Commc’n v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997)
(per curium). In a restricted appeal, an appellant is afforded the same scope of review as
an ordinary appeal, which includes a review of the entire case. Id. Here, the parties do
not dispute that the first three elements are met; thus we only consider whether error is
apparent on the face of the record.

B.     Sufficiency of Service and Return

       In its second issue, RMS asserts that the trial court did not acquire jurisdiction
over it because the service and return are defective. For purposes of a restricted appeal,
there are no presumptions favoring valid issuance, service, and return of citation. Fid. &
Guar. Ins. Co. v. Drewery Consrt. Co., 186 S.W.3d 571, 573 (Tex. 2006) (per curium).
This rule is justified because presumptions can neither be confirmed nor rebutted by
evidence in the appellate court. Id. Thus, strict compliance with the rules for service of
citation must affirmatively appear on the face of the record for a trial court to obtain
jurisdiction over a defendant. Harvestons Sec., Inc. v. Narnia Invs., Ltd., 218 S.W.3d
126, 133 (Tex. App.—Houston [14th Dist.] 2007, pet. denied).

       Texas Rule of Civil Procedure 103, which governs who may serve process,
provides in pertinent part:

       Process—including citation and other notices, writs, orders, and other
       papers issued by the court—may be served anywhere by (1) any sheriff or
       constable or other person authorized by law, (2) any person authorized by
       law or by written order of the court who is not less than eighteen years of
       age, or (3) any person certified under order of the Supreme Court.

Tex. R. Civ. P. 103. Here, there are two problems with the return of citation. First,
nothing on the return reflects that the person who executed the citation, Daniel
Newcomb, is either an officer or an authorized person to serve process. See Tex. R. Civ.
P. 103. Newcomb did not sign as a sheriff or constable, or otherwise indicate that he is a
person authorized to serve process.

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       Second, according to the citation, RMS’s registered agent is a foreign corporation,
Corporation Service Company. A proper agent for service to a foreign corporation
includes the president, each vice president, or a governing person, such as an officer or
director. See Tex. Bus. Orgs. Code Ann. § 5.255(1), (4) (West 2009). Here, the return
does not indicate that the person served, Sue Rhea, is the president, vice president, or a
governing person of the service corporation. See id. Signing as ―managing agent‖ does
not establish Rhea’s capacity as a statutorily recognized agent of the service corporation.
Nothing in the record, including the recitals in the petition and the citation, designates
Rhea as an authorized agent to receive service. Cf. Harvestons, 218 S.W.3d at 134–35
(concluding that inability to determine from the record the capacity or authority of
individual accepting service constitutes error apparent on the face of the record).

       Because service was defective, error appears on the face of the record.
Accordingly, without considering RMS’s other issues, 1 we sustain its second issue.

                                         CONCLUSION

       Having found error apparent on the face of the record in this restricted appeal, we
reverse the trial court’s judgment and remand the case for proceedings consistent with
this opinion.




                                       /s/            Adele Hedges
                                                      Chief Justice


Panel consists of Chief Justice Hedges and Justices Anderson and Christopher.




       1
         Because this issue is dispositive of the appeal, we need not consider RMS’s other two issues.
See Tex. R. App. P. 47.1.
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