Opinion
No. 04-03-00884-CV
Delivered and Filed: January 19, 2005.
Appeal from the 79th Judicial District Court, Jim Wells County, Texas, Trial Court No. 03-06-41495-Cv Honorable Terry A. Canales, Judge Presiding.
Reversed in Part and Remanded.
Sitting: Catherine STONE, Justice, Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice.
MEMORANDUM OPINION
This restricted appeal arises from a default judgment rendered against Gregory J. Gibson. The only contested element is whether error is apparent on the face of the record. See, e.g., Norman Communications. v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (listing elements required for successful restricted appeal). Appellant argues this element has been met because the face of the record establishes that, although service of process was sent to "Gregory J. Gibson dba Stony's Trucking," the certified mail receipt was signed by "J. Horner"; and the record does not establish that "J. Horner" was defendant's agent for service of process. We agree. See, e.g., American Universal Ins. Co. v. D.B. B., Inc., 725 S.W.2d 764, 765 (Tex.App. 1987, writ ref'd n.r.e.) (reversing default judgment because service of process, which was addressed to Jack Keith as the registered agent of Universal Insurance Co., was signed by J. Williams in the space labeled "agent"; and the record did not establish that J. Williams was an agent of Jack Keith or American Universal Insurance Co.).
The two corporations against whom judgment was also rendered have not appealed.
Zo-Vac argues that American Universal is distinguishable because J. Williams merely "sign[ed] the receipt . . . in a space reserved for an agent" and "did not affirmatively show that [he] was indeed signing in such capacity," while here "there is such an affirmative showing" because next to the signature box on the green card, the word "agent" is checked. We disagree. Neither establishes that the signer is an agent authorized to receive service of process. See, e.g., Great Amer. Cas. Co. v. Eichelberger, 73 S.W.2d 1050, 1052 (Tex.Civ.App. 1931, writ ref'd) (distinguishing general and special agents by the scope of their authority).
Because appellant has met the requirements for a restricted appeal, we reverse the trial court's judgment against Gregory J. Gibson and remand the cause for further proceedings consistent with this opinion.