Reversed and Rendered and Majority and Dissenting Opinions filed November 3, 

2011.

In The

Fourteenth Court of Appeals

NO. 14-10-01061-CV

DIAMOND OFFSHORE (BERMUDA), LTD., Appellant

V.

SUZANNE ELISABETH HAAKSMAN AS BENEFICIARY OF ROBERT 

DUNCAN BURN QUINN, AND THOMAS JOSEPH MCCARTNEY, 

Appellees

On Appeal from the 234th District Court

Harris County, Texas

Trial Court Cause No. 2004-00307

M A J O R I T Y O P I N I O N

Diamond Offshore (Bermuda), Ltd. appeals the trial court‘s recognition, pursuant 

to the Texas Uniform Foreign Country Money-Judgments Recognition Act,1of two 

judgments rendered by a court in The Netherlands in favor of Duncan Burn Quinn and 

Thomas Joseph McCartney. Because we conclude that the trial court erred by denying 

Diamond Bermuda‘s motion for nonrecognition, we reverse and render.

 

1

See TEX. CIV. PRAC. & REM. CODE ANN. §§ 36.001–.008 (West 2008). 
2

BACKGROUND

Robert Duncan Burn Quinn and Thomas Joseph McCartney were employees of 

Diamond Offshore (Bermuda), Ltd. (―Diamond Bermuda‖), working on an oil rig in the 

North Sea off the coast of The Netherlands. When Diamond Bermuda ceased operating 

the rig off the shore of The Netherlands, it offered Quinn and McCartney jobs on another 

rig. Instead of accepting the jobs, Quinn and McCartney filed suit against Diamond 

Bermuda in The Netherlands despite forum selection clauses contained in their written 

employment agreements with Diamond Bermuda providing for exclusive jurisdiction in 

Bermuda and the application of Bermuda law. The Dutch court rendered judgment in 

favor of Quinn and McCartney pursuant to Dutch law (the ―Dutch judgments‖). 

On January 7, 2004, Quinn and McCartney filed their notice of filing of the Dutch

judgments in Harris County, asking the Texas district court to recognize those judgments 

against Diamond Bermuda.

2

 On February 6, 2004, Diamond Bermuda filed a special 

appearance, motion to dismiss based on improper venue, motion to quash service, and 

motion for nonrecognition of foreign judgments. 

On May 3, 2006, the trial court entered an order granting Diamond Bermuda‘s 

special appearance, and appellees appealed the judgment to this court. We reversed the 

judgment and remanded the case to the trial court. See Haaksman v. Diamond Offshore 

(Bermuda), Ltd., 260 S.W.3d 476 (Tex. App.—Houston [14th Dist.] 2008, pet. denied).

We explained that the trial court may not review a foreign-country judgment in relation to 

any matter not specified in the Texas Uniform Foreign Country Money-Judgments 

Recognition Act (―UFCMJRA‖). Id. at 480 (citing TEX. CIV. PRAC. & REM. CODE ANN. 

§§ 36.0044(g), 36.005). Therefore, we held that the court could not refuse recognition 

based on the Texas court‘s lack of personal jurisdiction over the judgment debtor because 

 

2 Appellees also asked the trial court to recognize the Dutch judgments against Diamond Offshore 

Drilling Netherlands, B.V. (―Diamond Netherlands‖). Appellees, however, subsequently abandoned their 

claims against Diamond Netherlands, and the trial court ordered those claims dismissed with prejudice.
3

that is not one of the grounds for nonrecognition set forth in section 36.005 of the 

UFCMJRA. Id. The Texas Supreme Court denied Diamond Bermuda‘s petition for 

review. 

On August 23, 2010, the trial court held a hearing on Diamond Bermuda‘s motion 

to quash service, motion to dismiss based on improper venue, and motion for 

nonrecognition and, on September 22, 2010, entered an order denying the motions and 

recognizing the Dutch judgments. In thirteen issues, Diamond Bermuda challenges the 

trial court‘s denial of its motions. 

ANALYSIS

Because it is dispositive of this appeal, we shall address Diamond Bermuda‘s 

twelfth issue. Diamond Bermuda contends that the trial court erred by denying its motion 

for nonrecognition because the Dutch proceeding was contrary to the forum-selection and 

choice-of-law clauses in the employment contracts. See TEX. CIV. PRAC. & REM. CODE 

ANN. § 36.005(b)(5). 

The UFCMJRA governs the recognition of foreign country money judgments. 

Courage Co., LLC v. Chemshare Corp., 93 S.W.3d 323, 330 (Tex. App.—Houston [14th 

Dist.] 2002, no pet.). When recognition is not contested or a contest is overruled, a 

foreign-country judgment is conclusive between the parties to the extent that it grants 

recovery or denial of a sum of money. Id.; Reading & Bates Constr. Co. v. Baker Energy 

Res. Corp., 976 S.W.2d 702, 706 (Tex. App.—Houston [1st Dist.] 1998, pet. denied). It 

is enforceable in the same manner as a judgment of a sister state entitled to full faith and 

credit. Courage Co., 93 S.W.3d at 330; Reading & Bates Constr. Co., 976 S.W.2d at 

706. The party seeking to avoid recognition has the burden of proving a ground for 

nonrecognition. Courage Co., 93 S.W.3d at 331; Dart v. Balaam, 953 S.W.2d 478, 480 

(Tex. App.—Fort Worth 1997, no writ). Unless the judgment debtor satisfies its burden 

of proof by establishing one or more of the specific grounds for nonrecognition, the court 
4

is required to recognize the foreign judgment. Courage Co., 93 S.W.3d at 331. We 

review a trial court‘s ruling on recognition of a foreign-country judgment de novo. 

Sanchez v. Palau, 317 S.W.3d 780, 785 (Tex. App.—Houston [1st Dist.] 2010, pet. 

denied); Courage Co., 93 S.W.3d at 331.3 

Section 36.0044(g) provides that ―[t]he court may refuse recognition of the foreign 

judgment if the motions, affidavits, briefs, and other evidence before it establish grounds 

for nonrecognition as specified in Section 36.005.‖ TEX. CIV. PRAC. & REM. CODE ANN. 

§ 36.0044(g). Section 36.005 sets forth the exclusive grounds for nonrecognition of a 

foreign-country judgment. TEX. CIV. PRAC. & REM. CODE ANN. § 36.005. These are the 

only defenses available to a judgment debtor. Courage Co., 93 S.W.3d at 330; Dart, 953 

S.W.3d at 480. By limiting the defenses that the judgment debtor may raise, the 

UFCMJRA creates standards for recognizing judgments and prevents parties from 

relitigating issues that were conclusively settled by the foreign country court, 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.). 

A foreign-country judgment need not be recognized if ―the proceeding in the 

foreign country 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.‖ TEX.

CIV. PRAC. & REM. CODE ANN. § 36.005(b)(5); see also Courage Co., 93 S.W.3d at 336 

(holding that it was not error for the district court to grant the judgment debtor‘s motion 

for nonrecognition because the parties had agreed to arbitrate their disputes). Under the 

employment agreements, the parties ―irrevocably consent[ed] in advance to the exclusive 

jurisdiction‖ of the Bermuda courts to hear and determine ―any claims, disputes, suits, 

actions or proceedings . . . pertaining to this Agreement or to any matter relating to or 

 

3 Although section 36.0044(g) provides a court with ―discretion‖ to refuse recognition, a trial 

court never has ―discretion‖ to improperly determine the law or misapply the law to the facts. Walker v. 

Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding).
5

arising out of this Agreement.‖ Therefore, according to Diamond Bermuda, the Dutch 

proceedings held in The Netherlands were contrary to the parties‘ agreements. 

Appellees contend that Diamond Bermuda is required to show that the named 

forum recognizes the validity of forum-selection clauses. See Barnett v. Network 

Solutions, Inc., 38 S.W.3d 200, 203 (Tex. App.—Eastland 2001, pet. denied) (citing Sw. 

Intelecom, Inc. v. Hotel Networks Corp., 997 S.W.2d 322, 324 (Tex. App.—Austin 1999, 

pet. denied)). We do not agree that current Texas law requires Diamond Bermuda to 

make such a showing. 

In 2004, the Texas Supreme Court adopted the federal approach set forth in M/S 

Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972), to determine the enforceability of 

forum-selection clauses. See In re Automated Collection Techs., Inc., 156 S.W.3d 557, 

559 (Tex. 2004) (orig. proceeding) (per curiam); In re AIU Ins. Co., 148 S.W.3d 109, 

111–14 (Tex. 2004) (orig. proceeding). Under the federal approach adopted by the Texas 

Supreme Court, forum-selection clauses are generally enforceable and presumptively 

valid. In re Laibe Corp., 307 S.W.3d 314, 316 (Tex. 2010) (orig. proceeding) (per 

curiam); In re Int’l Profit Assocs., Inc., 274 S.W.3d 672, 675 (Tex. 2009) (orig. 

proceeding) (per curiam). A trial court abuses its discretion in refusing to enforce a 

forum-selection clause unless the party opposing enforcement meets its heavy burden of 

showing that (1) enforcement would be unreasonable or unjust, (2) the clause is invalid 

for reasons of fraud or overreaching, (3) enforcement would contravene a strong public 

policy of the forum where the suit was brought, or (4) the selected forum would be 

seriously inconvenient for trial. In re ADM Inv. Servs, Inc., 304 S.W.3d 371, 375 (Tex. 

2010) (orig. proceeding). 

Prior to the Texas Supreme Court‘s adoption of the federal approach, a number of 

Texas intermediate appellate court decisions had developed their own approach to the 

enforceability of forum-selection clauses. In re Tyco Elecs. Power Sys., No. 05-04-

01808, 2005 WL 237232, at *4 (Tex. App.—Dallas Feb. 2, 2005, orig. proceeding 
6

[mand. denied]) (mem. op.); see also Holeman v. Nat’l Bus. Inst., Inc., 94 S.W.3d 91, 97 

(Tex. App.—Houston [14th Dist.] 2002, pet. denied) (―Texas courts have developed their 

own approach to the enforceability of forum-selection clauses.‖). Under that approach, 

the moving party was required to show that the other forum recognized the validity of 

forum-selection clauses. See, e.g., Holeman, 94 S.W.3d at 97; Accelerated Christian 

Educ., Inc. v. Oracle, 925 S.W.2d 66, 70 (Tex. App.—Dallas 1996, no writ). However, 

those cases, including the cases cited by appellees, predate the Texas Supreme Court‘s 

opinions in AIU Insurance and Automated Collection Technologies adopting the federal 

approach and do not reflect current Texas law. In re Tyco Elecs. Power Sys., 2005 WL 

237232, at *4. Therefore, under current Texas law, there is no requirement that Diamond 

Bermuda establish that Bermuda courts would recognize the validity of forum-selection 

clauses. See Deep Water Slender Wells, Ltd. v. Shell Int’l Exploration & Prod., Inc., 234 

S.W.3d 679, 695 (Tex. App.—Houston [14th Dist.] 2007, pet. denied); Phoenix Network 

Techs. (Europe) Ltd. v. Neon Sys., Inc., 177 S.W.3d 605, 618 (Tex. App.—Houston [1st 

Dist.] 2005, no pet.).4

Appellees further contend that Diamond Bermuda is precluded from attacking the 

Dutch judgments because ―[a] judgment debtor is precluded from collaterally attacking a 

foreign judgment when an issue was litigated before a foreign court or the party was 

given the opportunity to litigate the issue before that court.‖ Courage Co., 93 S.W.3d at 

331 (citing Dart, 953 S.W.2d at 480).5 We do not agree with appellees that Diamond 

 

4 Diamond Bermuda filed its motion for nonrecognition, and appellees filed their response to the 

motion, before the Texas Supreme Court issued its decisions in AIU Insurance and Automated Collection 

Technologies adopting the federal approach. A decision of the Texas Supreme Court operates 

retroactively unless the court exercises its discretion to modify its application. Bowen v. Aetna Cas. & 

Sur. Co., 837 S.W.2d 99, 100 (Tex. 1992) (per curiam). Because there is nothing in AUI Insurance or 

Automated Collection Technologies indicating that the Texas Supreme Court intended for those decisions 

to apply only prospectively, we conclude that the court intended to apply those decisions retroactively. 

See Pickett v. Tex. Mut. Ins. Co., 239 S.W.3d 826, 833 (Tex. App.—Austin 2007, no pet.); Dees v. 

Bowles, 907 S.W.2d 626, 627–28 (Tex. App.—Dallas 1995, no writ). 

5 Appellees do not dispute that ―Diamond Bermuda previously made its forum-selection clause 

argument — in the Dutch court, and those arguments were found wanting.‖
7

Bermuda‘s having previously raised the forum-selection clauses in the Dutch proceedings 

precludes Diamond Bermuda from raising the clauses as a nonrecognition ground in the 

Texas proceeding. In Beluga Chartering B.V., this court explained: 

In limiting the defenses that may be raised by a judgment debtor, the 

UFCMJRA creates standards for recognizing foreign judgments and 

prevents parties from relitigating issues that were conclusively settled by 

courts of foreign countries, unless such issues create an exception to 

recognition.

294 S.W.3d at 304 (emphasis added). Because one of the express statutory grounds for 

nonrecognition is ―the proceeding in the foreign country 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,‖6 Diamond Bermuda is not precluded from raising that issue 

in the recognition proceeding.7 

In its response to Diamond Bermuda‘s motion for nonrecognition, appellees also 

argued that the forum-selection clause is not applicable because their recovery in the 

Dutch judgments did not arise out of the employment agreements, but from the Dutch 

―Employment in North Sea Mining Act.‖8 We disagree. The forum-selection clause 

covers ―claims, disputes, suits, actions or proceedings . . . brought against such party by 

the other party and pertaining to this Agreement or any matter relating to or arising out of 

 

6 TEX. CIV. PRAC. & REM. CODE ANN. § 36.005(b)(5). 

7 Moreover, in Courage Co., we also stated a ground for nonrecognition may be waived if a party 

had the right to assert that ground as an objection or defense in the foreign country court but failed to do 

so. 93 S.W.3d at 331. If raising one of the section 36.005 nonrecognition grounds in a foreign country 

court proceeding were a bar to raising it as nonrecognition ground in the Texas proceeding, then the 

judgment debtor would never be able to challenge a foreign judgment on any of the express statutory 

nonrecognition grounds if the judgment debtor also waives such ground by not raising it the foreign 

country court proceeding. Indeed, ―unless the judgment debtor 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.‖ Id. Therefore, the prohibition from ―collaterally attacking a foreign judgment 

when an issue was litigated before a foreign court‖ does not apply to one of the nonrecognition grounds 

set forth in section 36.005. 

8 Diamond Bermuda addresses this argument in its appellate brief. Although appellees raised this 

argument in the trial court, they do not address it in their appellate brief. 
8

this Agreement.‖ Appellees‘ claims for the termination of the employment contracts 

clearly fall within the scope of the forum-selection clauses. See RSR Corp. v. Siegmund, 

309 S.W.3d 686, 701 (Tex. App.—Dallas 2010, no pet.) (interpreting the language, ―any 

action or proceeding arising out of or relating to this Agreement,‖ as broad and 

encompassing all claims that have some possible relationship with the agreement, 

including those claims that may only ―relate to‖ the agreement); see also TGI Friday’s, 

Inc. v. Great Nw. Rests., Inc., 652 F. Supp. 2d 750, 759 (N.D. Tex. 2009) (―Forum 

selection clauses covering claims  ̳relating to‘ an agreement are broad in scope.‖). Thus, 

we conclude that the parties‘ forum selection clause does apply.

Finally, on the substantive question of nonrecognition under the forum-selection 

clause, Diamond Bermuda argues that appellees have not met their heavy burden to avoid 

the agreement. Specifically, Diamond Bermuda urges that appellees have not shown that 

trial in Bermuda would ―be so gravely difficult and inconvenient that [they] will for all 

practical purposes be deprived of [their] day in court.‖ M/S Bremen, 407 U.S. at 18. 

Appellees respond that Diamond Bermuda has no assets or presence in Bermuda, and ―all 

of its officers are in Houston, where its business is controlled.‖9 This evidence fails to 

address or satisfy their burden to show that a trial on their claims in Bermuda rather than 

in The Netherlands would have been so gravely difficult and inconvenient that for all 

practical purposes they would have been deprived of their day in court. See In re Lyon 

Fin. Servs., Inc., 257 S.W.3d 228, 234 (Tex. 2008) (per curiam) (―By entering into an 

agreement with a forum-selection clause, the parties effectively represent to each other 

that the agreed forum is not so inconvenient that enforcing the clause will deprive either 

party of its day in court, whether for cost or other reasons.‖); see also In re Laibe Corp., 

307 S.W.3d at 317 (explaining that, absent proof of special and unusual circumstances, 

trial in another forum is not is not so gravely difficult and inconvenient as to warrant 

disregarding the contractually-specified forum); In re Int’l Profit Assocs., Inc., 274 

 

9 Appellees appear to be addressing the issue as if they had to show that a trial in Bermuda would 

be seriously inconvenient when compared to Texas, rather than The Netherlands. 
9

S.W.3d at 680 (―[I]t is not a special or unusual circumstance for many, or even most, of 

fact witnesses in a lawsuit to reside somewhere other than in the area where the suit is 

brought.‖).

Although the statute affords the trial court certain discretion regarding the 

recognition of foreign-country judgments, Texas law requires this court review the 

exercise of such discretion de novo. The facial incongruity of these standards is of no 

consequence in this case, however. Whether we apply a de novo standard or an abuse of 

discretion standard to the trial court‘s determination in this case, our conclusion is the 

same because the trial court does not have discretion to improperly determine the law or 

misapply the law to the facts. See Walker, 927 S.W.2d at 840; Sanchez, 317 S.W.3d at 

785 n.13. Here, the trial court abused its discretion by failing to properly analyze the 

forum-selection clauses. 

We sustain Diamond Bermuda‘s twelfth issue.10 

Accordingly, we reverse the trial court‘s judgment denying Diamond Bermuda‘s 

motion for nonrecognition and recognizing the Dutch judgments and render judgment 

that the Dutch judgments not be recognized. 

/s/ Sharon McCally

Justice

Panel consists of Justices Frost, Jamison, and McCally. (Frost, J., dissenting).

 

10 In light of our disposition of Diamond Bermuda‘s appeal on this issue, we need not address

Diamond Bermuda‘s issues challenging the denial of its motion to quash service and motion to dismiss 

based on improper venue.