TERRY JENNINGS, Justice.
Appellant, Marina Presley, challenges the trial court's judgment entered in favor of appellee, N.V. Masureel Veredeling ("Masureel"), in Masureel's suit against Presley for enforcement of a foreign judgment. In two issues, Presley contends that the trial court erred in recognizing a judgment entered in favor of Masureel by a court located in Belgium.
We affirm.
Masureel is a company in the business of "yarns and fabrics finishing" with production facilities located in and around Korujtik, Belgium. Presley is President of Sudaglass Fiber Company, Inc. ("Sudaglass"). On September 6, 2000, Presley, individually and on behalf of Sudaglass, Presley's business partner Graham Miller, and a Masureel representative executed a joint venture agreement that provided that the parties wished to incorporate, under the laws of Belgium, a joint venture limited liability company for the purposes of representing and selling "continuous filament fiber worldwide." The joint venture agreement provided that it was to be "governed by, and construed and interpreted in accordance with the laws of Belgium." The joint venture agreement further provided that
Masureel, Presley, and Miller also executed, on September 6, 2000, a loan agreement, which was attached as an exhibit to the joint venture agreement. The loan agreement identified Masureel as the "[l]ender" and Presley and Miller as the "[b]orrower." The loan agreement recited that, "[w]ithin the framework of the joint venture agreement" and "subject to the terms and conditions of the present agreement," Masureel would lend to Presley and Graham $600,000 for specified purposes; the loaned amounts would be reimbursed "on the earliest of either the moment at which" specified shares in the joint venture were sold by Presley and Miller to Masureel
On October 30, 2000, Masureel, as lender, and Presley and Graham, as borrowers, executed a second loan agreement, evidencing a second loan by Masureel to Presley and Graham for an additional $51,466.32 that was to be used to "constitute" the joint venture company. Similar to the first loan agreement, the second loan agreement recited that the loaned amounts were to be reimbursed "on the earliest of either" the selling of specified shares to Masureel "under the terms of the joint venture agreement ..., by means of set off, or December 31, 2000." And Masureel would be entitled to "immediate reimbursement" of the loaned amounts if the "financial situation" of Presley or Miller was "modified to the extent that the ability of one of them to reimburse the loan appears jeopardi[z]ed." The second loan agreement contained a "Law and Jurisdiction" clause identical to the same clause in the first loan agreement, which provided that the agreement was to be governed by and construed in accordance with Belgium law and the courts of Kortrijk, Belgium had "non exclusive jurisdiction for any dispute which may arise under or in connection with this agreement."
Masureel funded the two loan agreements. Although the parties dispute the factual reasons for non-payment, Masureel was not reimbursed for the loan amounts by December 31, 2000, which was the date by which Masureel was entitled to reimbursement under the terms of both loan agreements. In 2001, Masureel filed a lawsuit against Presley, Miller, and Sudaglass, in the "Court of the First Instance of the District of Kortrijk (Belgium)." In its lawsuit, Masureel sought as its damages the amount of its loan payments for which it had not been reimbursed. Masureel argued that it was entitled to the repayment of its loans because the contractually-specified date of December 31, 2000 had passed, Presley and Graham had not fulfilled their obligations under the loan agreements, and the financial situation of Presley and Graham had changed to the extent that their ability to reimburse the loans had been jeopardized.
In the Belgium court proceedings, Presley challenged the Belgium court's jurisdiction by contending that the joint venture agreement and loan agreement "constitute one whole." Presley asserted that the arbitration clause in the joint venture agreement, which applied to disputes "arising from or relating to" the joint venture agreement, controlled and mandated that the parties' entire dispute be submitted to arbitration. Presley also sought a judgment dissolving the joint venture agreement.
(Emphasis added).
After rejecting Presley's jurisdictional argument, the Belgium court ruled that both loan agreements had expired by their own terms and Masureel was contractually entitled, as of December 31, 2000, to demand reimbursement of the loan amounts. Thus, the court ordered Presley to pay Masureel the amount of its loans. The Belgium court also concluded that it did not have jurisdiction to entertain Presley's claim for dissolution and breach of the joint venture agreement.
Presley appealed the Belgium court's judgment to the Court of Appeals of Ghent, which issued its opinion in March 2004. In regard to the issue of jurisdiction, the Belgium court of appeals stated that it agreed with the reasoning of the
The Belgium court of appeals also stated that it "completely" agreed with the trial court and the trial court had no jurisdiction to consider Presley's counterclaim for breach of the joint venture agreement.
Masureel, in the underlying Harris County district court, filed on July 26, 2006 its Original Petition for Enforcement of Foreign Judgment.
The trial court, recognizing the Belgium trial court's judgment, entered a judgment stating that the foreign judgment is "enforceable in the same manner as a judgment from Texas or any sister state."
In her first and second issues, Presley argues that the trial court erred in recognizing the Belgium trial court's judgment because it "was obtained in a derogation of the parties' agreement to arbitrate disputes" and the Belgium trial court failed to provide Presley a fair trial.
Under the Uniform Foreign Money — Judgments Recognition Act (the "Act"), a judgment creditor may seek recognition of a foreign country judgment
The Act sets forth the grounds for "nonrecognition" of a foreign country judgment. See id. § 36.005 (Vernon 2008). Relevant to the instant case, a foreign country judgment is "not conclusive" if it "was rendered under a system that does not provide impartial tribunals or procedures compatible with the requirements of due process of law." See id. § 36.005(a)(1). And a foreign country judgment "need not be recognized" if "the proceeding in the foreign country court was contrary to an agreement between the parties under which the dispute in question was to be settled otherwise than by proceedings in that court." See id. § 36.005(b)(5). A party contesting recognition of a foreign country judgment may file and serve a motion for nonrecognition no later than the 30th day after the date of service of the notice of filing of judgment is provided under the Act. See id. § 36.0044(a) (Vernon 2008). The party filing the motion for nonrecognition shall include with the motion all supporting affidavits, briefs, and other documentation; the party opposing the motion must file any response, including supporting affidavits, briefs, and other documentation not
The party seeking to avoid recognition has the burden of proving a ground for nonrecognition and, unless that party satisfies his burden of proof by establishing one or more of the specific grounds for nonrecognition, the court is required to recognize the foreign country judgment. Courage Co. v. Chemshare Corp., 93 S.W.3d 323, 331 (Tex.App.-Houston [14th Dist.] 2002, no pet.). By limiting the defenses available to a judgment debtor, the Act creates standards for recognizing foreign country judgments and prevents parties from relitigating issues that were conclusively settled by courts of foreign countries, unless such issues create an exception to recognition. Beluga Chartering, B.V. v. Timber S.A., 294 S.W.3d 300, 304 (Tex.App.-Houston [14th Dist.] 2009, no pet.); Dart v. Balaam, 953 S.W.2d 478, 480 (Tex.App.-Fort Worth 1997, no writ). A trial court's enforcement of a foreign country judgment presents a question of law, and, thus, we review de novo a trial court's recognition of a foreign country judgment. Sanchez, 317 S.W.3d at 785; Courage Co., 93 S.W.3d at 331.
Presley first argues that because the parties agreed to arbitrate any claims arising out of or relating to the joint venture agreement, and because the joint venture agreement and the loan agreements "constitute one agreement" and are "inextricably intertwined," Masureel obtained the Belgium court judgment "in violation of the parties' agreement to arbitrate." See id. § 36.005(b)(5).
Initially, we note that Presley does not dispute that the loan agreements, as well as the joint venture agreement, specify that Belgium law is to be applied to the construction of the agreements. Moreover, Presley does not cite, or discuss in any significant detail, Belgium law regarding the interpretation of the dispute resolution, choice of law, and forum selection clauses in the joint venture and loan agreements. Rather, Presley asserts that Masureel waived any argument regarding the application of Belgium law by failing to provide notice that it intended to raise an issue concerning the law of Belgium. See TEX.R. EVID. 203. We disagree. The record reveals that Masureel provided notice that it was relying on the judgments issued by the Belgium trial and appellate courts, and it furnished the trial court with complete copies of the Belgium trial court and court of appeals' judgments and English translations of these judgments. See id. The judgments reflect that the Belgium courts applied Belgium law in considering, and rejecting, Presley's arguments that the arbitration clause in the joint venture agreement should trump the choice of law and forum selection clauses in the loan agreements. Presley has not provided this Court with analysis challenging the Belgium courts' application of Belgium law. See Autonation Direct.com, Inc. v. Thomas A. Moorehead, Inc., 278 S.W.3d 470, 472 (Tex.App.-Houston [14th Dist.] 2009, no pet.) (stating that Texas courts will respect parties' choice of law provision and will "apply the law the parties chose" to substantive matters, including contract construction); see also El Polio Loco, S.A. de C.V. v. El Pollo Loco, Inc., 344 F.Supp.2d 986, 988 (S.D.Tex.2004) (citation omitted) (stating that "Texas choice of law principles give effect to choice of law clauses if the law chosen by the parties has a reasonable relationship with the parties and the chosen state, and the law of the chosen state is not contrary to a fundamental policy of the state"); BDO Seidman v. Miller, 949 S.W.2d 858, 860-61 (Tex.App.-Austin 1997, writ dism'd w.o.j.)
Nevertheless, even if we were to consider the merits of Presley's arguments, which are based upon general principles of Texas contract construction law rather than Belgium law, we would conclude that the trial court did not err in denying Presley's motion for nonrecognition. In support of her argument that the Belgium trial court's judgment violated the parties' arbitration clause, Presley cites our sister court's opinion in Courage. In Courage, the Fourteenth Court of Appeals considered the proper construction of "plainly inconsistent" forum selection and choice of law clauses that were included within two separate agreements that were executed by the same parties seven months apart. 93 S.W.3d at 332-33. In analyzing the two conflicting agreements, the court noted that, under Texas law, "when a second contract deals with the same subject matter as the first contract made by the same parties, but does not specify whether or to what extent it is intended to operate in discharge or substitution," the contracts are to be "interpreted together, and to the extent that they are inconsistent, the later one prevails." Id. Because the court found that the agreements pertained to the same subject matter and were "inextricably interwined," the court concluded that the parties intended for the subsequently-executed agreement "to supersede and to control." Id. at 335. Based upon these legal principles, and after noting that the parties had failed to submit their disputes to arbitration in accord with the clauses in the subsequently-executed agreement, the court affirmed the trial court's order refusing to recognize a foreign country judgment that had been entered by a court outside the scope of the required arbitration proceedings. Id. at 336.
Courage is substantively distinguishable. First, as noted above, Belgium, rather than Texas, law applies to the substance of this dispute. Second, although the joint venture agreement and the loan agreements refer to each other, the loan agreements plainly provide that any disputes arising under or in connection with the loan agreements may be submitted to the courts of Kortrijk, Belgium. By their express terms, the loan agreements are significantly narrower than the joint venture agreement. The only reasonable construction to apply to these agreements is to recognize that the parties expressly elected to allow disputes that arose from the loan agreements to be submitted to Belgium courts rather than arbitration. See Seagull Energy E & P, Inc. v. Eland Energy, Inc., 207 S.W.3d 342, 345 (Tex.2006) (stating that we must examine and consider entire writing in effort to harmonize and to give effect to all provisions of contract so that none will be rendered meaningless); Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133-34 (Tex.1994) (providing that specific provisions control over more general ones). Moreover, the second loan agreement, which contains a choice of law and forum selection clause that is identical to the first loan agreement, was executed after the joint venture agreement. See Courage, 93 S.W.3d at 332-33 (stating that "to the extent" contracts clauses "are inconsistent, the later one prevails"). Accordingly, we hold that the trial court did not err in recognizing the Belgium court's judgment on the ground that it was contrary to an arbitration agreement between the parties. See TEX. CIV. PRAC. & REM. CODE ANN. § 36.005(b)(5).
Second, Presley argues that because the Belgium trial court refused to hear her defenses that were based upon
Recognition of a foreign country judgment under the Act "does not require that the procedures used in the courts of a foreign country be identical to those used in the courts of the United States." The Society of Lloyds v. Webb, 156 F.Supp.2d 632, 639-40 (N.D.Tex.2001). Rather, the Act requires only that the foreign procedures are "compatible with the requirements of due process of law" and do "not offend against basic fairness." Id. at 640 (internal quotations and citations omitted). To establish a prima facie case that conclusive effect should be given to a foreign country judgment, courts have explained that a party may demonstrate that "the rendering court had jurisdiction over the person and subject matter, that there was timely notice and an opportunity to present a defense, that no fraud was involved, that the proceedings were according to a civilized jurisprudence are the same for both favored and nonfavored systems." Id. (citation omitted).
The record reflects that Presley appeared in the Belgium court proceedings, and the Belgium courts considered and addressed Presley's arguments that the entire matter should be submitted to arbitration pursuant to the joint venture agreement's arbitration clause. The record further reflects that the Belgium courts ruled that Presley's counterclaim for breach of the joint venture agreement against Masureel should be pursued in arbitration. Although Presley disputes the Belgium court's determination that Masureel's request for reimbursement under the loan agreements and the other disputes arising from the joint venture agreement are not "indivisible," we conclude that the record does not support Presley's assertions that the Belgium courts failed to provide her with an impartial tribunal and the procedures used by the Belgium courts were "incompatible" with due process of law. Presley has not cited any authority for the proposition that a ruling like that reached by the Belgium courts under the circumstance here, in which Presley was directed to pursue her affirmative claims in accord with an arbitration clause, renders the foreign country's procedures fundamentally unfair.
We overrule Presley's first and second issues.
We affirm the judgment of the trial court.
