Appellant Euler-Siac S.P.A. Creamar Spa “Euler-Siac” appeals the trial court’s decisions setting aside default judgments and dismissing Euler-Siac’s complaints in an action on an open account and in a subsequent garnishment based on the default judgment entered in the prior action.1 The trial court found that it lacked jurisdiction in the initial action based on a forum selection clause in which both parties agreed to the “exclusive jurisdiction of Texas courts and the application of its law.” The trial court also found that because the judgment underlying the garnishment was void, the garnishment was also void. However, we find that Drama Marble failed to timely raise its defenses of lack of jurisdiction and venue based on the forum selection clause and, therefore, waived the defenses. Accordingly, we reverse the trial court’s decision setting aside the default judgments and dismissing the complaints. The record reflects that on November 27, 2001, Euler-Siac filed an action against appellee Drama Marble Co., Inc. “Drama Marble” in Fulton County State Court seeking, inter alia, $53,930.94 as money owed on an open account. The complaint alleged in pertinent part that “Defendant is a corporate citizen of this state with its registered office in this county. Defendant is subject to the jurisdiction of this Court and venue is proper in this county.” Attached and incorporated into the complaint as “Exhibit A” were several account invoices, which also included the terms of the parties’ agreement. The terms included a forum selection clause that specified, “Buyer and Seller consent to the exclusive jurisdiction of Texas courts and the application of its law.”
Drama Marble was served with process on December 6, 2001 through its registered agent, Steven Strelzick, whose office was located in Fulton County, Georgia. However, Drama Marble failed to file an answer or other responsive pleading. As such, the trial court entered a default judgment “the underlying judgment” in favor of Euler-Siac on or about January 30, 2002.
