T. Edward Williams and William LLP v. Kaboomracks, Inc., RWVK, LLC and Robert Van Kirk

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.

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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”

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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

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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

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“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.

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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

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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.”).

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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

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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

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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

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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

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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

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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

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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.”).

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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).

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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

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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

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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.

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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.

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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.

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