The San Antonio Court of Appeals has held that a party challenging a default judgment may well risk losing the opportunity to challenge the exercise of personal jurisdiction over him unless special precautions are taken.

In Boyd v. Kobierowski, Kobierowski, a Texas resident, sued Boyd, a California resident, in Texas for breach of contract, fraud, misrepresentation and DTPA violations.  All causes of action arose from the sale of a vehicle  Boyd sold to Kobierowski. 

Boyd did not answer the suit and Kobierowski took a default judgment against Boyd.  Boyd subsequently filed a restricted appeal to challenge the default judgment.  He prevailed on appeal because of a defect in personal service.  See Appeal No. 04-06-0041-CV. 

On remand, Kobierowski repeatedly tried to get Boyd to answer the suit, but Boyd did not respond.  Kobierowski then took a second default judgment.  Boyd subsequently filed a special appearance and a motion for new trial subject to the special appearance.  The trial court denied the special appearance, but granted the motion for new trial.  In a second (interlocutory) appeal, Boyd argued that it was error to deny his special appearance.

The court of appeals reviews the history of the special appearance rules in Texas, pointing out that historically Texas’ special appearance rules put a defaulting defendant to an election of either collaterally attacking the default judgment or making a general appearance and attempting to directly set aside the default.  The San Antonio Court of Appeals holds that the present special appearance practice in Texas creates a ppresumption of a general appearance, but that Rule 120a establishes an exception to the presumption if the exception is properly employed.   The court holds that a non-resident defendant may enter a special appearance after a judgment is reversed for defective or no service, but the failure to file a special appearance following a remand results in a general appearance.   Because Boyd filed nothing for the five months following remand, the court of appeals holds that Boyd made a general appearance.

The court’s opinion may be found here.  One question raised by the court’s opinion is whether the result would have been different had there been no evidence that Kobierowski made numerous attempts to get Boyd to file an answer?  Or, would the result have been different if the elapsed time between remand and the filing of the special appearance were one month or one week?