REVERSE and REMAND and Opin ion Filed March 18, 2024 

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In The 

### Court of Appeals Fifth District of Texas at Dallas No. 05-23-00259-CV NEW RESIDENTIAL MORTGAGE, LLC, Appellant V. LEGACY BROKERAGE, LLC, Appellee On Appeal from the 366th Judicial District Court Collin County, Texas Trial Court Cause No. 366-01691-2022 MEMORANDUM OPINION Before Justices Garcia, Breedlove, and Kennedy Opinion by Justice Garcia In this restricted appeal, New Resid ential Mortgage, LLC (“NRM”) appeals the trial court’s entry of a final no-answ er default judgment en tered in favor of Legacy Brokerage, LLC (“Lega cy”). In three issues, NRM argues there is error on the face of the record because: (i) the c itation was issued in the wrong name, (ii) Legacy did not comply with the methods of service specified by T EX

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. 106(a), and (iii) the trial court awarded gr eater relief than Legacy requested. We conclude that NRM has established error appa rent on the face of the record because the record does not reflect that the defe ndant named in the default judgment was–2– served with process. We therefore revers e the trial court’s judgment and remand for further proceedings.
I. B ACKGROUND Legacy acquired an interest in propert y in McKinney, Texa s (the “Property”) in a 2021 foreclosure sale of a homeown er’s association lien. NRM claimed a superior lien interest in the Property. Legacy filed suit to quiet title, alleging that NRM is the record owner of a deed of trust encumbering the Property (the “Deed of Trust”). The original petition caption names “New Residential Mortgate [sic] Company LLC,” and the service paragraph requests service on “New Residential Mortga ge Company, LLC.” The petition requested that the court decree the Deed of Trust unenforceable, or alternatively, decree that Legacy is ent itled to receive information sufficient to discharge the lien. The citation names “New Residential Mo rtgage Company LLC,” to be served through its registered agent, CT Corpora tion Systems. Six days after the original petition and citation were se rved, Legacy filed an am ended petition correcting the name of NRM to “New Residential Mort gage LLC,” but a new citation was not issued. A return of service was filed on Ma y 16, 2022, reflecting service on “New Residential Mortgage Compan y, LLC,” by delivery to its registered agent, CT Corporation at its registered office. NRM di d not answer or appear, so Legacy moved–3– for a default judgment. A supplement to the motion was filed on July 11, 2022, and included Secretary of State records showi ng the appointment of CT Corporation as registered agent for NRM, an affidavit fr om the process server attesting to the practices and procedures followed in serv ing CT Corporation during the pandemic, an acknowledgment from CT Corporation th at process was received on April 8, 2022, and a copy of the assignment to NRM. The trial court granted final judgment in favor of Legacy against “New Resid ential Mortgage LLC” on September 28, 2022. The trial court’s judgment decrees that the Deed of Trust is “terminated, set aside, and declared to be void. ” But the judgment also decrees: The Court further finds and DECREES that Defendant NEW RESIDENTIAL MORTGAGE, LLC owns no interest whatsoever in and to the property at 800 Aviary Rd., McKi nney, Texas, and more particularly described as Lot 20, Block D, Falcon Creek Phase IV, an Addition to the City of McKinney, Collin County, Texa s, according to the Map thereof recorded in Volu me K, Page 589, Map Records of Collin County, Texas. (Emphasis added). On March 20, 2023, NRM filed this restricted appeal.
II. A NALYSIS A. Restricted Appeals The law abhors default judgments. Diagnostic Clinic of Longview, P.A. v. Neurometrix, Inc ., 260 S.W.3d 201, 205 (Tex. A pp.—Texarkana 2008, no pet.) (citing Titan Indem. Co. v. Ol d S. Ins. Grp., Inc ., 221 S.W.3d 703, 708 (Tex. App.— San Antonio 2006, no pet.)). In a restricted appeal, an appellant may directly attack–4– such a judgment. See Gen. Elec. Co. v. Falcon Ri dge Apartments, Joint Venture , 811 S.W.2d 942, 943 (Tex.1991). A party can prevail in a restricted a ppeal only if: (1) it filed notice of the restricted appeal within six months afte r the judgment was signed; (2) it was a party to the underlying lawsuit; (3) it did not participate in the hearing that resulted in the judgment complained of and did not time ly file any postjudgment motions or requests for findings of fact and conclusions of law; and (4) erro r is apparent on the face of the record. Ins. Co. of State of Penn. v. Lejeune , 297 S.W.3d 254, 255 (Tex. 2009). For purposes of a restricted appeal, th e face of the record consists of all the papers on file before the judgment as well as any reporter’s record. Reed Elsevier, Inc. v. Carrollton-Farmers Branch Indep. Sch. Dist ., 180 S.W.3d 903, 905 (Tex. App.—Dallas 2005, pet. denied ). Here, the record estab lishes, and neither party disputes, that the first three elements ar e met. We must therefore decide whether error appears on the face of the record

. B. Was Service Defective? NRM argues that service was defectiv e because the original petition named and citation was issued to “New Residentia l Mortgage Company, LLC,” rather than New Residential Mortgage, LLC. “In a restrict ed appeal, defective service of process constitutes error apparent on the face of the record.” Dolly v. Aethos Communications Sys., Inc ., 10 S.W.3d 384, 388 (Tex. A pp.—Dallas 2000, no pet.). Whether service strictly complied with the rules is a question of law we review de–5– novo. Daigrepont v. Preuss , No. 05-18-01271-CV, 2019 WL 2150916, at *3 (Tex. App.—Dallas May 17, 2019, no pet.) (mem. op.); U.S. Bank Tr., N.A. v. AJ & SAL Enters., LLC, No . 05-20-00346-CV, 2021 WL 1712213, at *2 (Tex. App.—Dallas Apr. 30, 2021, no pet.) (mem. op.). To withstand this challenge, the record must demonstrate strict compliance with service rules. Primate Const., Inc. v. Silver , 884 S.W.2d 151, 152 (Tex. 1994). “There are no presumptions in favor of valid issuance, service, and return of service.” Id . If the record in a restricted appeal fails to affirmatively show strict compliance with the rules of civil pro cedure governing service of citation, the attempted service of process is invalid and of no effect. See Uvalde Country Club v. Martin Linen Supply Co., Inc ., 690 S.W.2d 884, 885 (Tex . 1985). When failure to comply with the rules renders the attempted service of process invalid, the trial court acquires no personal jurisd iction over the defendant. Lytle v. Cunningham , 261 S.W.3d 837, 839–40 (Tex. App. —Dallas 2008, no pet.). A judgment based on improper service is void. Id. As the Texas Supreme Court has observed, “we rigidly enforce rules governing service when a default judgment is entered because the only ground supporting the judgment is that the defendant has failed to res pond to the action in confor mity with the applicable procedure for doing so.” Hubicki v. Festina , 226 S.W.3d 405, 408 (Tex. 2007). Legacy argues that naming and serv ing “New Residential Mortgage Company, LLC,” rather than New Residential Mortgage, LL C, is a misnomer, not a–6– misidentification. Under Texa s law, a misnomer occurs when a plaintiff sues the correct entity but misnames it. Chilkewitz v. Hyson , 22 S.W.3d 825, 828 (Tex.1999). Conversely, a misidentification arises when two separate legal entities actually exist and a plaintiff mistakenly sues the entity w ith a name similar to that of the correct entity. Id. When a misnomer occurs, service upon the correct party is proper and the defendant is then under a duty to plead the misnomer and seek abatement. Rios v. Northwestern Steel & Wire Co ., 974 S.W.2d 932, 934 (Tex. App.—Houston [14th Dist.] 1998, no pet.). We recognize that strict complian ce with the rules does not require “obeisance to the minutest detail.” Cate v. Posey , No. 05-17-01216-CV, 2018 WL 6322170, at *2 (Tex. App.—Dalla s Dec. 4, 2018, no pet.) (m em. op.). As long as the record as a whole, including the petition, c itation, and return, shows that the citation was served on the defendant in the suit, se rvice of process will not be invalidated. Id. But the cases justifying slight deviations from service involve situations such as mistaken capitalization in a name or spelling errors too minor to raise any doubt that the correct person was served. See, e.g., Westcliffe, Inc. v. Bear Creek Constr., Ltd ., 105 S.W.3d 286, 290–91 (Tex. App.—Dal las 2003, no pet.) (omission of a single letter at the end of defendant’s name); Color Smart, Inc. v. Little , No. 04–00– 00294–CV, 2001 WL 1230526, at *2 (Tex. App.—San Antonio Oct.17, 2001, no pet.) (not designated for pub lication) (“Spelling errors too minor to raise any doubt–7– that the correct person was served are insufficient to invalidate service.”); Ortiz v. Avante Villa at Corpus Christi, Inc. , 926 S.W.2d 608, 612–13 (Tex. App.—Corpus Christi 1996, writ denied) (holding that omission of an accent mark and the substitution of “@” for “at” did not invalidate service); Herbert v. Greater Gulf Coast Enters., Inc ., 915 S.W.2d 866, 871 (Tex. App.—H ouston [1st Dist.] 1995, no writ) (op. on reh’g) (concluding that serv ice was not ineffective when the citation referred to the “petition” as a “complaint”); Cockrell v. Estevez , 737 S.W. 2d 138, 140 (Tex. App.—San Antonio 1987, no wr it) (defendant’s na me misspelled in citation). The correct name of a corporate en tity, however, is not a minute detail. See U.S. Bank Trust, N.A. v. AJ and SAL Enterp., LLC , No. 05-20-00346-CV, 2021 WL 1712213, at *3 (Tex. App.—Dallas Apr. 30, 2021, no pet.) (mem. op) (entity served not the entity named in petition and judgment); Midstate Env’l Servs. LP v. Peterson , 435 S.W.3d 287, 290 (Tex. A pp.—Waco 2014, no pet.) (discrepancy in named defendant and entity that was served); Hercules Concrete Pu mping Svs., Inc. v. Bencon Management and Cent’ l Contracting, Corp ., 62 S.W.3d 308, 310 (Tex. App.—Houston [1st Dist.] 2001, pet. denied) (incomplete name of corporate defendant). Rule 99 provides th at a citation shall “show the names of the parties . .
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. P. 99. An incorrect name of a party to the suit demonstrates that a citation is not in compliance. Uvalde Country Club v. Martin Linen Supply Co ., 690 S.W. 2d 884, 885 (Tex. 1985); Patrick O’Connor & Assoc., L.P. v. Hall , No. 01-15-–8– 00661-CV, 2016 WL 4440665, at *2 (Tex. A pp.—Houston [1st Dist.] Aug. 23, 2016, pet denied) (mem. op.). Indeed, “virtu ally any deviation” from the rules “will be sufficient to set aside a default judgment in a restricted appeal.” Dolly , 10 S.W.3d
at 388. Legacy contends that there is no cause for confusion in this case because the petition identified the property, the borro wer, and the assignment through which NRM acquired an interest in the deed of trust. This ignores, however, that the defendant described is not the defendant who was name d and served. Legacy was aware of this defect when it amended th e petition to correctly name the party it intended to sue, but a new citation was ne ver issued in the intended party’s name. Legacy also argues that there is no evid ence that there is another entity named “New Residential Mortgage Co mpany, LLC.” While this ma y be true, it is equally feasible that there is such an entity. Regardless, in a rest ricted appeal, these are not inferences we are permitted to make. See Primate , 884 S.W.2d at 152; see also Rome Engineering Serv., Ltd. v. Culberson, 317 S.W.3d 506, 510 (Tex. App.—Dallas 2010, no pet.) (regardless of wh ich entity was intended, th e defendant named in the default was not served with process). As our court has observed: Although the strict compliance require ments sometimes lead the courts to rather weird conclusions, prev enting us from making even the most obvious and rational inferences, we believe good public policy favors the standard. The end effect of our application of the strict compliance standard is an increased opportunity for trial on the merits. This policy justifies what may at first bl ush seem a hyper-technical rule.–9– Pro-Fire & Sprinkler, L.L. C. v. The Law Company, 661 S.W.3d 156, 164 (Tex. App.—Dallas 2021, no pet.). Because the record does not reflect se rvice on “New Residential Mortgage LLC,” the party against whom judgment was entered, service wa s defective. Proper service not being shown, there is error on the face of the record. See Primate , 884 S.W.2d at 153. NRM’s issue concerning defective service is sustained, and we need not reach the remaining issues. See T EX

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. P. 47.1. We reverse the trial court’s judgment and remand for further proceedings.

230259F.P05 /Dennise Garcia/ DENNISE GARCIA JUSTICE–10– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT

NEW RESIDENTIAL MORTGAGE, LLC, Appellant

No. 05-23-00259-CV V. LEGACY BROKERAGE, LLC, Appellee On Appeal from the 366th Judicial District Court, Collin County, Texas Trial Court Cause No. 366-01691- 2022. Opinion delivered by Justice Garcia. Justices Breedlove and Kennedy participating. In accordance with this Court’s opinion of this date, the judgment of the trial court is REVERSED and this cause is REMANDED to the trial court for further proceedings consistent with this opinion. It is ORDERED that appellant NEW RE SIDENTIAL MORTGAGE, LLC recover its costs of this appeal fr om appellee LEGACY BROKERAGE, LLC.
Judgment entered March 18, 2024