Opinion issued December 17, 2024
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-23-00214-CV ——————————— T. EDWARD WILLIAMS AND WILLIAMS LLP, Appellants V. KABOOMRACKS, INC., RWVK, LLC AND ROBERT VAN KIRK, Appellees
On Appeal from the 190th District Court Harris County, Texas Trial Court Case No. 2022-26492
MEMORANDUM OPINION
Appellants T. Edward Williams and Williams LLP (collectively, the
“Williams Parties”) appeal the trial court’s entry of a default judgment against them,
as well as the trial court’s denial of their motion to set aside the default judgment.
We affirm. Background
This case began as a legal malpractice action. The Williams Parties are a
lawyer and his law firm. Appellees Kaboomracks, Inc., RWVK, LLC, and Robert
Van Kirk (collectively, “Appellees”) are engaged in a business relating to the sale
of cryptocurrency mining hardware. They claim the Williams Parties were negligent
in representing them in an arbitration proceeding, which resulted in an adverse award
and ultimately a judgment against them. Appellees filed this suit to recover the
damages they allegedly suffered because of the Williams Parties’ professional
negligence.
The Underlying Litigation and Events Giving Rise to This Malpractice Suit.
Appellees’ business operations are in Texas. T. Edward Williams
(“Williams”) is an attorney based in New York; he is licensed to practice law in New
York and Colorado. Williams LLP is Williams’s New York law firm (the “Williams
Firm”). Both Williams and the Williams Firm say they are residents of New York
and Colorado.
In 2019, Williams contacted Van Kirk about a lawsuit pending in New York
state court involving an alleged theft of bitcoin mining equipment. The parties
apparently agree the Williams Parties advised Appellees in connection with the New
York state lawsuit.
2 At the same time the New York suit was pending, a “related” arbitration
proceeding was being conducted in New York. Appellees were parties to the
arbitration. Appellees contend they engaged the Williams Parties to represent them
in the arbitration proceeding; the Williams Parties disagree.
The arbitration proceedings resulted in an adverse award against Appellees.
The prevailing parties in the arbitration sued Appellees in New York state court to
have the arbitration award confirmed as a judgment. Appellees apparently believed
the Williams Parties were representing them in the suit to confirm the arbitration
award, while the Williams Parties believed they had not been engaged in that
capacity. Accordingly, neither Appellees themselves nor the Williams Parties
appeared for Appellees in the suit to confirm the arbitration award, and Appellees
defaulted. The New York state court entered the arbitration award as a judgment
against them in the amount of $47,830.00, plus interest and costs. The New York
judgment was later domesticated as a Texas judgment, and Appellees paid $58,946
to satisfy it. They also paid $16,565 in attorney’s fees to the Williams Parties.
This Malpractice Suit and Appeal.
Appellees sued the Williams Parties in Texas, claiming the adverse arbitration
award and judgment entered against them in the New York proceedings were caused
by the Williams Parties’ negligence and breach of fiduciary duty. In response, the
Williams Parties, represented by Williams, filed an “Entry of Special Appearance”
3 in July 2022, arguing the Texas trial court lacked personal jurisdiction over them.
The bases for the Williams Parties’ special appearance were that they were “not
residents of this state,” Appellees had “fabricated this suit,” and they did not receive
service of “Plaintiff’s Complaint.” Although Williams “certif[ied]” the special
appearance was “meritorious,” neither Williams nor the Williams Firm swore to the
facts stated in it. The Williams Parties did not set the special appearance for a hearing
or take other action to bring it to the trial court’s attention; instead, they state in their
brief that they “awaited a trial setting on the special appearance.”
The case then went dormant for several months, and the trial court notified
the parties it would be dismissed for want of prosecution. Appellees filed a verified
motion to retain, in which they informed the trial court they intended to file a motion
for default judgment. The Williams Parties did not respond to the motion to retain,
nor did they set their special appearance for hearing.
A short time later, Appellees filed a motion for default judgment and set it for
hearing. It was supported with copies of the returns of service of the citations on
Williams and the Williams Firm; a “soldier’s and sailor’s affidavit” stating that
Williams was not a member of the armed services; a certificate of the last known
addresses for Williams and the Williams Firm; the declaration of Kaboomracks,
Inc.’s CEO setting out the liquidated damages amounts Appellees claimed they had
suffered as a result of malpractice by Williams and the Williams Firm; and an
4 affidavit from Appellees’ counsel on the attorney’s fees they had incurred in this
matter.
The record shows that the Williams Parties were served with both Appellees’
motion for default judgment and the notice of hearing. The record also confirms that
the Williams Parties opened the electronic service copy of the notice of hearing. But
the Williams Parties did not respond to the motion for default judgment or appear at
the hearing, nor did they set their special appearance for hearing.
The trial court entered a default judgment for Appellees. It awarded them
$75,511 in actual damages, $2,750 in attorney’s fees, post-judgment interest, and
costs. The default judgment states that it “disposes of all parties and all claims and
is a final judgment and is appealable.” The trial court signed the default judgment
on December 5, 2022.
The Williams Parties contend they became aware of the default judgment nine
days later, on December 14, 2022, while “speaking with the Clerk about a status
update on when the [trial court] would rule on [their] Special Appearance.”
Later that day, the Williams Parties moved to set aside the default judgment.
The motion to set aside did not claim lack of timely notice of the judgment, nor did
it state that it was made subject to the Williams Parties’ special appearance. While
the motion to set aside includes jurisdictional arguments, the Williams Parties also
made substantive arguments about the merits of the case, claiming that Appellees
5 “and their attorney have made up lies and perpetuated fraud on [the trial court]. To
put it simply, [Appellees] cannot maintain a suit against the [Williams Parties]
because they know correctly that the [Williams Parties] never represented them in
any shape, form, or fashion.” Appellees opposed the motion to set aside, and the trial
court denied it in a written order entered on January 26, 2023.
On February 24, 2023, the Williams Parties, now represented by Texas
counsel, moved for a new trial. Appellees opposed this motion as well, and the trial
court signed an order denying it on March 20, 2023.
The Williams Parties appealed. Their notice of appeal states that they are
appealing the trial court’s default judgment, as well as the order denying their motion
to set aside the default judgment “pending the outcome” of their motion for new
trial.
Analysis
In three issues, the Williams Parties contend the trial court’s entry of default
judgment was improper. Their first issue argues the trial court lacked personal
jurisdiction over them, and that their special appearance preserved their objection to
the trial court’s exercise of personal jurisdiction. Therefore, they say, the trial court
had to rule on their special appearance before it could take any other action in the
case, including its entry of default judgment.
6 In their second issue, the Williams Parties again contend their special
appearance precluded the trial court from entering a default judgment. But here, they
argue the special appearance should be construed as an answer and general
appearance that precluded the trial court from hearing Appellees’ motion for default
judgment.
And finally, in their third issue, the Williams Parties argue the trial court
violated Texas Rule of Civil Procedure 45 by failing to give them 45 days’ notice
before entering the default judgment.
I. The Williams Parties Waived Their Special Appearance.
The Williams Parties first contend the trial court lacked personal jurisdiction
over them, and that any delay in setting a hearing on their special appearance did not
waive it. But this argument has not been preserved for appellate review. And even if
it had, we would overrule the Williams Parties’ first issue on its merits.
A. The Williams Parties Did Not Preserve Their First Issue for Appellate Review.
The Williams Parties did not timely raise their first issue in the trial court, and
thus they did not preserve it for appellate review. See TEX. R. APP. P. 33.1(a) (“As a
prerequisite to presenting a complaint for appellate review, the record must show
that . . . the complaint was made to the trial court by a timely request, objection, or
motion . . . .”); Abacan Tech. Servs. Ltd. v. Glob. Marine Int’l Servs. Corp., 994
S.W.2d 839, 844 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (“Abacan did not 7 preserve this complaint because Abacan did not raise it in the trial court.”). The
Williams Parties first raised this argument in their motion for new trial, but their
motion for new trial was untimely.
Motions for new trial must be filed “prior to or within thirty days after the
judgment or other order complained of is signed.” TEX. R. CIV. P. 329b(a). The
“judgment or other order complained of” in the Williams Parties’ motion for new
trial was the default judgment. The trial court signed the default judgment on
December 5, 2022. Therefore, any motions for new trial were due by January 4,
2023. See id.
The Williams Parties did not file their motion for new trial until February 24,
almost two months after the deadline had passed. As a result, it did not meet Texas
Rule of Appellate Procedure 33.1(a)’s requirement that a complaint be “timely”
presented to the trial court “[a]s a prerequisite to presenting [it] for appellate review.”
TEX. R. APP. P. 33.1(a). And because it was untimely, the Williams Parties’ motion
for new trial was a “nullity for purposes of preserving issues for appellate review.”
Moritz v. Preiss, 121 S.W.3d 715, 720 (Tex. 2003); see also Boyd v. Kobierowski,
283 S.W.3d 19, 24 (Tex. App.—San Antonio 2009, no pet.) (“[A]n untimely motion
can be a legal nullity.”).
8 B. The Williams Parties Waived Their Special Appearance by Invoking the Trial Court’s Authority on the Merits of the Case.
We would overrule the Williams Parties’ first issue even if it was preserved.
They contend the trial court was required to rule on their special appearance
challenge to personal jurisdiction before considering any other issue, but the
Williams Parties waived their special appearance by invoking the trial court’s
authority on the merits of the case before obtaining a ruling on the personal
jurisdiction question. See Grynberg v. M-I L.L.C., 398 S.W.3d 864, 877–79 (Tex.
App.—Corpus Christi-Edinburg 2012, no pet.) (litigant’s filing of motion for new
trial waived objection to exercise of personal jurisdiction) (citing Liberty Enters. v.
Moore Transp. Co., 690 S.W.2d 570, 571–72 (Tex. 1985)). This issue—the trial
court’s decision about a party’s waiver of objections to personal jurisdiction—is a
question of law that we review de novo. See Moore v. Pulmosan Safety Equip. Corp.,
278 S.W.3d 27, 32 (Tex. App.—Houston [14th Dist.] 2008, pet. denied).
Texas courts can exercise personal jurisdiction over an out-of-state defendant
consistent with the defendant’s due process rights and as permitted by Texas’s
long-arm statute. Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex.
2007) (“Texas courts may assert in personam jurisdiction over a nonresident if (1)
the Texas long-arm statute authorizes the exercise of jurisdiction, and (2) the
exercise of jurisdiction is consistent with federal and state constitutional due-process
guarantees.”). A defendant’s objection to the trial court’s exercise of personal 9 jurisdiction “can be waived,” Trenz v. Peter Paul Petroleum Co., 388 S.W.3d 796,
800 (Tex. App.—Houston [1st Dist.] 2012, no pet.), and the defendant can effect
such a waiver in a variety of ways. Conners v. ContiCarriers & Terminals, Inc., 944
S.W.2d 405, 415 (Tex. App.—Houston [14th Dist.] 1997, no writ.) (“[T]here are a
variety of legal arrangements by which a litigant may give express or implied
consent to the personal jurisdiction of the court.”).
One way in which a defendant can waive challenges to personal jurisdiction
is by making a general appearance. Adeleye v. Driscal, 544 S.W.3d 467, 476 (Tex.
App.—Houston [14th Dist.] 2018, no pet.). A defendant makes a general appearance
when it “(1) invokes the judgment of the court on any question other than the court’s
jurisdiction, (2) recognizes by its acts that an action is properly pending, or (3) seeks
affirmative action from the court.” Exito Elecs. Co. v. Trejo, 142 S.W.3d 302, 304
(Tex. 2004).
By contrast, Texas Rule of Civil Procedure 120a establishes the procedure for
challenging a trial court’s exercise of personal jurisdiction. Rule 120a allows a party
to make a “special appearance”—a limited appearance for the sole purpose of
challenging personal jurisdiction—without making a general appearance that waives
the objection to personal jurisdiction. See TEX. R. CIV. P. 120a; First Oil PLC v. ATP
Oil & Gas Corp., 264 S.W.3d 767, 776 (Tex. App.—Houston [1st Dist.] 2008, pet.
denied) (“Rule 120a requires compliance with its terms, by stating that the
10 consequence for failure to comply with its terms is a waiver of the special
appearance.”). And Rule 120a is the exclusive method by which defendants can
directly challenge the trial court’s exercise of personal jurisdiction over them. See
Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 201 (Tex. 1985) (other than
following the special appearance procedure set out in Rule 120a, a “nonresident
defendant [has] only two options: he [can] either appear and consent to jurisdiction
or allow a default judgment to be taken against him and attack the Texas judgment
as being void if the plaintiff brought suit in the defendant’s state to enforce the
judgment”).
A defendant must strictly comply with Rule 120a’s requirements. See
Silbaugh v. Ramirez, 126 S.W.3d 88, 93 (Tex. App.—Houston [1st Dist.] 2002, no
pet.). A defendant’s failure to strictly comply waives any jurisdictional challenge.
See TEX. R. CIV. P. 120a.1 (“Every appearance, prior to judgment, not in compliance
with this rule is a general appearance.”).
Rule 120a contains a mandatory order of operations. It requires that a “special
appearance shall be “filed prior to . . . any other plea, pleading, or motion,” TEX. R.
CIV. P. 120a.1, and “heard and determined before . . . any other plea or pleading may
be heard.” TEX. R. CIV. P. 120a.2. These requirements are known as the
“due-order-of-pleading” and “due-order-of-hearing” requirements, respectively.
PetroSaudi Oil Servs. Ltd. v. Hartley, 617 S.W.3d 116, 136 (Tex. App.—Houston
11 [1st Dist.] 2020, no pet.). And because Rule 120a requires strict compliance, a failure
to strictly adhere to its due-order-of-pleading and due-order-of-hearing requirements
waives jurisdictional challenges. See Nationwide Distrib. Servs., Inc. v. Jones, 496
S.W.3d 221, 224 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (“A defendant that
does not strictly comply with the procedural requirements of Rule 120a, including
the due-order-of-pleading and due-order-of-hearing requirements, waives its
jurisdictional challenge and enters a general appearance.”).
In determining whether a defendant has strictly complied with Rule 120a and
thus preserved his special appearance, our focus is the defendant’s actions and
whether those actions invoke the court’s jurisdiction—not on the court’s response to
those actions. See Angelou v. African Overseas Union, 33 S.W.3d 269, 276 (Tex.
App.—Houston [14th Dist.] 2000, no pet.) (“[T]he relevant inquiry concerning a
defendant’s waiver of a special appearance, is not what a court does in response to a
filing . . . . Rather, the pertinent inquiry is whether a defendant truly seeks any
affirmative action from the court.”). “Generally, if a defendant obtains a hearing on
a motion that seeks affirmative relief unrelated to his special appearance before he
obtains a hearing and ruling on his special appearance, he has entered a general
appearance and thus waived any challenge to personal jurisdiction; but if a defendant
obtains a hearing on a motion that only seeks relief appurtenant to his special
appearance, it may not result in waiver.” Trenz, 388 S.W.3d at 802. The test for
12 determining whether a defendant’s motion makes a general appearance before
obtaining a ruling on his special appearance is whether the other motion seeks
“affirmative relief inconsistent with [the defendant’s] assertion that the district court
lacked jurisdiction.” Dawson-Austin v. Austin, 968 S.W.2d 319, 323 (Tex. 1998).
Here, there is no dispute that the Williams Parties complied with Rule 120a’s
due-order-of-pleading requirement, because they filed their special appearance
before filing “any other plea, pleading or motion.” TEX. R. CIV. P. 120a.1. Instead,
the question is whether they later waived their special appearance by moving to set
aside the default judgment and obtaining a ruling on that motion before obtaining a
ruling on their special appearance—that is, whether the Williams Parties’ motion to
set aside the default judgment violated the due-order-of-hearing requirement. Cf.
Glob. Paragon Dall., LLC v. SBM Realty, LLC, 448 S.W.3d 607, 613 (Tex. App.—
Houston [14th Dist.] 2014, no pet.) (“SBM Realty violated rule 120a’s
due-order-of-hearing requirement and entered a general appearance because it
obtained a ruling on its motion for new trial before obtaining a ruling on its special
appearance.”).
We conclude that it did. First, several Texas courts have held that a motion
for new trial is a request to invoke the court’s authority that is inconsistent with a
challenge to its exercise of personal jurisdiction. See, e.g., id. (“[A] motion for new
trial is an acknowledgement of the court’s jurisdiction and a request to invoke the
13 court’s authority.”); Anderson v. Anderson, 786 S.W.2d 79, 81 (Tex. App.—San
Antonio 1990, no writ) (“A motion for new trial seeks to invoke the authority of the
court, while the special appearance necessarily challenges that same authority.”).
And while the Williams Parties labeled their filing a “motion to set aside default
judgment” rather than a “motion for new trial,” it was a motion for new trial for
purposes of the due-order-of-hearing requirement. See Lab’y Corp. of Am. v.
Mid-Town Surgical Ctr., Inc., 16 S.W.3d 527, 528 (Tex. App.—Dallas 2000, no pet.)
(“We deem appellant’s motion to set aside the default judgment to be a motion for
new trial because a motion for new trial following a default judgment requests that
the default judgment be set aside.”). The Williams’ Parties thus sought to invoke the
trial court’s jurisdiction when they moved to set aside the default judgment.
Second, the motion to set aside makes clear it sought the trial court’s
affirmative relief on the merits of the case rather than mounting a purely
jurisdictional challenge. In it, the Williams Parties argue that: (1) they “can defend
this action because the action is frivolous”; (2) Appellees “cannot maintain a
suit . . . because they know correctly that [the Williams Parties] never represented
them in any shape, form, or fashion”; and (3) “[Appellees] and their attorney have
made up lies and perpetuated fraud on this Court.” The motion to set aside thus
sought the trial court’s ruling on matters unrelated to the question of personal
jurisdiction, and in doing so it sought affirmative relief the trial court could award
14 only if it had jurisdiction. See Boyo v. Boyo, 196 S.W.3d 409, 418 (Tex. App.—
Beaumont 2006, no pet.) (“When a party asks a court to set aside a judgment, that
request is treated generally as a submission to the jurisdiction of the Courts of this
State.”); see also Glob. Paragon, 448 S.W.3d at 613 (motion for new trial waived
special appearance because it was a “challenge to the trial court’s award [that] seeks
affirmative relief that the court could grant only if it had jurisdiction”).
Third, the Williams Parties’ special appearance was ineffective because it was
not sworn. Cf. TEX. R. CIV. P. 120a.1 (special appearance “shall be made by sworn
motion”); Dawson-Austin v. Austin, 968 S.W.2d 319, 321–22 (Tex. 1998) (“[A]n
unsworn special appearance does not comply with Rule [120a.1], and thus is
ineffectual to challenge in personam jurisdiction.”).
And the Williams Parties never stated that the motion was subject to their
special appearance. Cf. Puri v. Mansukhani, 973 S.W.2d 701, 707 (Tex. App.—
Houston [14th Dist.] 1998, no pet.) (“Many Texas courts generally recognize that if
a non-resident defendant discovers a default judgment was entered, he should file a
special appearance and then a motion for new trial subject to his special
appearance.” (emphasis in original; citations omitted)); Lang v. Cap. Res. Invs. I &
II, LLC, 102 S.W.3d 861, 864–65 (Tex. App.—Dallas 2003, no pet.) (defendant’s
motion for new trial did not waive special appearance in part because it was made
“subject to” the special appearance). Instead, they sought affirmative relief on the
15 merits of the case and then proceeded to allow the trial court to rule on their motion,
without first obtaining a ruling on their special appearance. See Landry v.
Daigrepont, 35 S.W.3d 265, 268 (Tex. App.—Corpus Christi-Edinburg 2000, no
pet.) (“We conclude Daigrepont waived his special appearance by arguing his
motion for new trial before the special appearance had been determined.”).
It does not matter that the Williams Parties also included jurisdictional
arguments in their motion to set aside. See Shapolsky v. Brewton, 56 S.W.3d 120,
140 (Tex. App.—Houston [14th Dist.] 2001, pet. denied) (defendant waived special
appearance by seeking relief “at least partially unrelated to” special appearance); see
also Glob. Paragon, 448 S.W.3d at 613 (special appearance waived even though
defendant’s “motion to vacate default judgment and for new trial contains arguments
that overlap to some extent with the arguments in its special appearance, [in part
because] its July 24 motion for new trial addresses the merits of the default
judgment’s award of unliquidated damages and that the judgment provides a double
recovery”). The fact that they sought and obtained a merits ruling before securing a
jurisdictional ruling means the Williams Parties waived their special appearance. See
Trenz, 388 S.W.3d at 803 (“By obtaining and participating in hearings on requests
for affirmative relief from the trial court before obtaining a ruling on his special
appearance, Trenz violated Rule 120a and waived his challenge to personal
jurisdiction.”).
16 This invocation of the trial court’s authority on the merits of the case, at odds
with the Williams Parties’ jurisdictional challenge, waived their special appearance.
See Klingenschmitt v. Weinstein, 342 S.W.3d 131, 134 (Tex. App.—Dallas 2011, no
pet.). As the Williams Parties concede in their brief, “[a] party enters a general
appearance, and so waives its special appearance, if the party invokes the judgment
of the court on any question other than the court’s jurisdiction or recognizes by its
acts that an action is properly pending against it.”
The Williams Parties nevertheless argue their special appearance remains
viable because a “[d]elay in setting a hearing on a special appearance does not waive
the special appearance.” And they are correct: the mere passage of time—even long
periods of time—does not in itself waive a special appearance. See Horizon
Shipbuilding, Inc. v. BLyn II Holding, LLC, 324 S.W.3d 840, 846 (Tex. App.—
Houston [14th Dist.] 2010, no pet.) (“Delay in setting the hearing did not waive the
special appearance.”) (citing Peninsula Asset Mgmt. (Cayman) Ltd. v. Hancock Tire
Co., Ltd., No. 02-04-00254-CV, 2006 WL 1030185, at *4 (Tex. App.—Fort Worth
Apr. 20, 2006, pet. denied) (mem. op.) (delay of 18 months in setting special
appearance for hearing did not waive it)); Alpine Ocean Seismic Survey, Inc. v.
Moore, No. 14-19-00499-CV, 2021 WL 2325097, at *2 (Tex. App.—Houston [14th
Dist.] June 8, 2021, no pet.) (mem. op.) (delay of 20 months did not waive special
appearance).
17 But the issue here was not merely the passage of time; rather, the issue was
that the Williams Parties waived their special appearance by invoking the trial
court’s authority when they moved to set aside and then allowed the trial court to
rule on the motion to set aside without first securing a ruling on the special
appearance, or at a minimum stating that the motion to set aside was made subject
to the special appearance. See Glob. Paragon, 448 S.W.3d at 613; Trenz, 388 S.W.3d
at 803; Puri, 973 S.W.2d at 707.
The Williams Parties also suggest in their brief that it was the trial court’s
“duty” to take up their special appearance before taking any other action in the case.
But “it is the specially appearing defendant’s responsibility timely to request a
hearing and secure a ruling on the preliminary question of personal jurisdiction. The
specially appearing defendant must not only request a hearing, but specifically call
that request to the trial court’s attention. He waives his special appearance by not
timely pressing for a hearing thereon.” Bruneio v. Bruneio, 890 S.W.2d 150, 154
(Tex. App.—Corpus Christi-Edinburg 1994, no pet.).
Here, it is undisputed that the Williams Parties never set their special
appearance for hearing or submission, and nothing in the record shows that they
brought the special appearance to the trial court’s attention before asking for a ruling
on the merits in their motion to set aside the default judgment. Therefore, they
“violated Rule 120a’s due-order-of-hearing requirement and entered a general
18 appearance because [they] obtained a ruling on [their] motion for new trial before
obtaining a ruling on [their] special appearance.” Glob. Paragon, 448 S.W.3d at 613.
We overrule the Williams Parties’ first issue.
II. The Williams Parties’ Special Appearance Was Not an Answer and General Appearance Barring the Entry of Default Judgment.
In their second issue, the Williams Parties contend the trial court’s “failure to
hear” their special appearance prohibited it from considering Appellees’ motion for
default judgment. They argue that “the special appearance constitutes a general
appearance and answer to the suit” that “prohibit[s] the trial court from moving
forward hearing Appellees’ motion for default judgment.” The sole authority the
Williams Parties cite in support is Brown v. Brown, 520 S.W.2d 571, 575 (Tex.
App.—Houston [1st Dist.] 1975, writ dism’d), and specifically Brown’s conclusion
that a “special appearance was, of itself, an appearance . . . that amounted to a
submission to the court’s jurisdiction.” Id. at 575.
But Brown is distinguishable, and its holding does not apply. Brown was a
divorce case in which the defendant husband filed a special appearance challenging
the trial court’s exercise of personal jurisdiction over him. Brown, 520 S.W.2d at
572–73. The husband’s special appearance contained a stipulation in which he
agreed to make alimony payments, and in which he also agreed that any missed
alimony payment would “automatically withdraw” the special appearance and
convert it to “a general denial and general appearance.” Id. at 574. The husband then 19 missed an alimony payment, and the court of appeals concluded, consistent with his
stipulation, that he had withdrawn his special appearance and generally appeared.
See id. at 575. Thus, while Brown concluded the husband’s special appearance
would be treated as an appearance that “amounted to a submission to the court’s
jurisdiction,” it also was careful to note that this conclusion was limited to “the facts
of this case” and a result of “the stipulation attached to [the husband’s] special
appearance.” Id. Contrary to the Williams Parties’ contention, Brown does not
announce a general rule that a special appearance should be treated as an answer and
general appearance precluding default judgment.
This argument is also contrary to the special appearance process established
by the Texas Rules of Civil Procedure. Rule 120a sets the special appearance as a
unique procedure designed specifically to challenge personal jurisdiction. See TEX.
R. CIV. P. 120a. Conflating special and general appearances would defeat that
purpose. See Trenz, 388 S.W.3d at 800. And as we noted above, it was the Williams
Parties’ responsibility, and not that of the trial court, to bring their special appearance
to the trial court’s attention and secure a ruling on it before proceeding with their
motion to set aside. See Bruneio, 890 S.W.2d at 154.
We overrule the Williams Parties’ second issue.
20 III. The Williams Parties Waived Their Third Issue.
The Williams Parties contend in their third issue that the trial court erred by
not giving them 45 days’ notice before entering default judgment, which they argue
was required by Texas Rule of Civil Procedure 245. Rule 245 requires that the parties
to “contested cases” be given at least 45 days’ notice of “a first setting for trial.”
TEX. R. CIV. P. 245. Building on their second issue, the Williams Parties’ position
appears to be that their special appearance should be construed as an answer that
made this a “contested case,” thus entitling them to the 45-day notice period required
by Rule 245.
But again, the Williams Parties did not present this argument to the trial court;
they raise it for the first time on appeal. As a result, they failed to preserve their third
issue for appellate review. See TEX. R. APP. P. 33.1(a); Abacan Tech. Servs., 994
S.W.2d at 844.
Even if this issue had been preserved, Rule 245’s notice requirement does not
apply. Rule 245 also states that “[n]oncontested cases may be tried or disposed of at
any time whether set or not, and may be set at any time for any other time.” TEX. R.
CIV. P. 245. As the Williams Parties’ concede, “[a] case is ‘noncontested,’ and thus
is not subject to Rule 245’s [45] day notice requirement, when the defendant does
not file a written answer.” Long v. Comm’n for Law. Discipline, No.
14-11-00059-CV, 2012 WL 5333654, at *2 (Tex. App.—Houston [14th Dist.] Oct.
21 30, 2012, no pet.) (mem. op.). Here, the Williams Parties did not answer, and for the
reasons explained above their special appearance cannot be construed as an answer.
Therefore, Rule 245’s notice requirement was not applicable.
Finally, the Williams Parties claim that the problem was not merely that they
did they not receive 45 days’ notice of a hearing on Appellees’ motion for default
judgment, but rather that they did not receive any notice of either the motion or the
hearing. The record shows otherwise. It reflects that the Williams Parties were
electronically served with Appellees’ motion for default judgment and notice of
hearing on November 10, 2022, and that the Williams Parties opened the electronic
service copy of the notice of hearing on November 28, 2022.
We overrule the Williams Parties’ third issue.
Conclusion
We affirm the trial court’s judgment.
Sarah Beth Landau Justice
Panel consists of Justices Kelly, Landau, and Rivas-Molloy.