                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-12-00196-CV


NEW HAMPSHIRE INSURANCE                                             APPELLANT
COMPANY

                                          V.

MAGELLAN REINSURANCE                                                     APPELLEE
COMPANY, LTD.


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        FROM THE 236TH DISTRICT COURT OF TARRANT COUNTY

                                       ----------

                          OPINION ON REHEARING

                                       ----------

      Appellant New Hampshire Insurance Company filed a motion for rehearing

of our opinion issued February 14, 2013. We deny the motion, withdraw our

opinion and judgment dated February 14, 2013, and substitute the following.

                                   I. INTRODUCTION

      The   litigation   between    New     Hampshire   and   Appellee    Magellan

Reinsurance Company, Ltd. has been lengthy, vigorously contested, and well
traveled. It began in 2004 in the Turks and Caicos Islands (TCI), included brief

proceedings in New York, and is now—eight years later, yet still in its infancy—

ongoing in Texas. While the essence of the underlying dispute between New

Hampshire and Magellan has remained unchanged since the inception of the

litigation, New Hampshire‘s opinion about the arbitrability of the disputed matters

has not.   Because we hold that New Hampshire is judicially estopped from

compelling arbitration, we will affirm the trial court‘s order denying New

Hampshire‘s motion to compel arbitration.

                   II. FACTUAL AND PROCEDURAL BACKGROUND

      New Hampshire is a Pennsylvania corporation that is authorized to

conduct business in Texas. Magellan is a corporation chartered in the TCI. Its

primary place of business is Tarrant County, Texas.

      In 1997, New Hampshire and Magellan entered into a ―Contractual

Reimbursement Insurance Reinsurance Agreement,‖ whereby Magellan agreed

to accept 100% of New Hampshire‘s obligations and liabilities under a number of

automobile dealer insurance policies issued by New Hampshire in exchange for

100% of the gross written premiums paid under the policies, less a provisional

ceding commission to New Hampshire. The Reinsurance Agreement required

Magellan to establish a trust account, from which New Hampshire was

authorized to withdraw funds to secure payments under the Reinsurance

Agreement. The Reinsurance Agreement also contains an arbitration provision,

which provides in relevant part that ―[a]ll disputes or differences arising out of the


                                          2
interpretation of this Agreement shall be submitted‖ to arbitration in New York.

[Emphasis added.]

      In April 2002, New Hampshire made ―a series of withdrawals‖ from the

trust account—over $2 million according to Magellan—―effectively emptying‖ it.

New Hampshire subsequently informed Magellan that the trust fund required a

deposit of approximately $1.2 million. Magellan identified several discrepancies

in New Hampshire‘s claims handling and accounting, disagreed that the deposit

was necessary, and requested a refund from New Hampshire in the amount of

approximately $995,000. New Hampshire and Magellan continued to exchange

correspondence over the next few years—New Hampshire defended its claims

handling and accounting and demanded that Magellan deposit approximately

$1.4 million into the trust account, and Magellan challenged New Hampshire‘s

claims amounts, demanded to inspect New Hampshire‘s books and records, and

refused to deposit the $1.4 million into the trust account.

      Relying upon the demanded but unpaid $1.4 million and a TCI ordinance

related to a company‘s inability to pay a ―debt,‖ New Hampshire filed a petition in

August 2004 in a TCI court to ―wind up‖ Magellan‘s business.             Magellan

responded by moving to stay the proceedings and to compel arbitration. New

Hampshire argued against arbitration, contending that the dispute did not involve

the interpretation of the Reinsurance Agreement but only whether Magellan was

insolvent. The TCI lower court agreed with New Hampshire, declined to compel




                                          3
arbitration, and ordered Magellan to be wound up. An appeal reversing the lower

court, a remand, and additional litigation in the TCI courts ensued.

      Meanwhile, at some point before the TCI lower court issued its final ruling,

Magellan initiated a proceeding in a New York state court to enjoin the TCI

litigation and to compel New Hampshire to arbitration in New York.           New

Hampshire contested the action, arguing that Magellan‘s ―statutory insolvency‖

under TCI law was not a dispute that involved the interpretation of the

Reinsurance Agreement. After the TCI lower court had ruled, the New York court

denied Magellan‘s requested relief, concluding—just like the TCI lower court

had—that ―[t]he question of whether [Magellan] owes money is not an

interpretation of the reinsurance contract; rather, it is a factual controversy

concerning respondent‘s calculation of the amount in dispute . . . .‖

      In September 2005, while the TCI litigation was still pending, Magellan

sued New Hampshire in Texas and asked the trial court to make nine

declarations regarding the parties‘ rights ―under the Reinsurance Agreement.‖

Magellan amended its original petition later in September 2005, and with the

exception of two declarations, Magellan asked the trial court to make all of the

same declarations as those pleaded in the original petition.

      In December 2005, New Hampshire filed a motion to dismiss or abate

Magellan‘s Texas action. New Hampshire argued that the relief was necessary

because ―[t]he issues Magellan now asks this Court to decide mirror those




                                         4
raised, litigated[,] and currently pending in the TCI . . . Action.‖ The trial court

abated the Texas action in February 2006 pending resolution of the TCI litigation.

      The TCI litigation came to a conclusion in July 2009 when the Lords of the

Judicial Committee of the Privy Council held that New Hampshire was not a

―creditor‖ of Magellan and, therefore, could not ―wind up‖ Magellan‘s business.

Two years later, in June 2011, the Texas trial court purported to vacate the order

abating the case.

      In November 2011, New Hampshire, for the first time, moved to compel

arbitration of Magellan‘s then-pleaded declaratory judgment claims.            New

Hampshire argued that arbitration was necessary because Magellan had

repeatedly admitted as much in earlier proceedings. Detailing New Hampshire‘s

history of contesting arbitration, Magellan responded that judicial estoppel,

judicial admission, collateral estoppel, and waiver barred New Hampshire from

compelling arbitration of Magellan‘s claims.      In December 2011, before the

hearing on New Hampshire‘s motion, Magellan filed its second amended petition,

removing its nine requests for declaratory relief and substituting claims against

New Hampshire for breach of contract, fraud, breach of fiduciary duty,

conversion, accounting, and theft under the Texas Theft Liability Act. The trial

court ultimately denied New Hampshire‘s motion to compel arbitration.          This

interlocutory appeal followed.




                                         5
                 III. PRIOR DISMISSAL FOR WANT OF PROSECUTION

      Neither party raises any jurisdictional arguments, but we feel compelled to

first address a procedural matter that was partly the subject of a recent original

proceeding in this court. On December 30, 2009, the Texas trial court dismissed

for want of prosecution Magellan‘s lawsuit against New Hampshire.            Almost

fifteen months later, on March 17, 2011, the trial court vacated its December 30,

2009 dismissal order and reinstated the cause. New Hampshire later filed a

petition for writ of mandamus, arguing that the trial court lacked plenary power to

reinstate the cause. See In re New Hampshire Ins. Co., No. 02-12-00281-CV,

2012 WL 3264392, at *1 (Tex. App.—Fort Worth Aug. 13, 2012, orig. proceeding

[mand. denied]) (mem. op.).         This court agreed with New Hampshire

(notwithstanding that the cause had been abated when the trial court dismissed

it) and conditionally granted the petition. Id. at *1–2. Although our holding meant

that the cause was not reinstated in March 2011, Magellan later invoked the

Texas trial court‘s subject-matter jurisdiction by filing the second amended

petition in December 2011.      See Leach v. Brown, 156 Tex. 66, 68–69, 292

S.W.2d 329, 330–31 (1956) (holding that the filing of an amended petition in the

same cause in which a final judgment had already been entered was, like an

original petition, sufficient to invoke the trial court‘s jurisdiction). We therefore




                                         6
observe no jurisdictional impediment to our consideration of this interlocutory

appeal.1

                    IV. ARBITRABILITY OF MAGELLAN’S CLAIMS

      In what we construe as a single issue, New Hampshire argues that the trial

court erred by refusing to compel arbitration of the claims pleaded by Magellan in

its second amended petition. Specifically, New Hampshire contends that the

claims involve the interpretation of the Reinsurance Agreement, that it did not

waive the right to arbitrate any of the claims, and that none of the other equitable

principles cited by Magellan prevent enforcement of the arbitration provision

because the pending claims are separate and distinct from the matters involved

in the TCI and New York litigation.

      Magellan responds that its fraud, breach of fiduciary duty, conversion,

theft, and accounting claims are outside the scope of the arbitration clause

because, on their face, they do not involve the interpretation of the Reinsurance

Agreement.    Further, although Magellan does not dispute that its breach of

contract claim is within the scope of the arbitration agreement, it argues that its

former requests for declaratory relief ―essentially morphed‖ into the breach of


      1
        This court has also previously issued a memorandum opinion addressing
New Hampshire‘s arguments that Magellan failed to comply with the
requirements for recognition of foreign country judgments under the Uniform
Foreign Country Money-Judgment Recognition Act. See New Hampshire Ins.
Co. v. Magellan Reins. Co., No. 02-11-00334-CV, 2013 WL 105654, at *1 (Tex.
App.—Fort Worth Jan. 10, 2013, no pet.) (mem. op.). Nothing in that opinion
conflicts with our holding in this memorandum opinion.


                                         7
contract claim and that New Hampshire‘s request to compel arbitration of the

breach of contract claim is barred by judicial estoppel, judicial admission,

collateral estoppel, and waiver because of New Hampshire‘s prior conduct

contesting arbitration in the TCI litigation, the New York proceeding, and the pre-

second amended petition Texas litigation. To the extent that the non-breach of

contract claims are covered by the arbitration agreement, Magellan argues that

they too are barred on the same grounds.

      New Hampshire replies that its past arguments contesting arbitration are

irrelevant and cannot preclude it from compelling arbitration at this point because

the second amended petition alleges entirely new causes of action, the

arbitrability of which New Hampshire has never argued against.

      A.    Standard of Review

      We review the trial court‘s denial of a motion to compel arbitration for an

abuse of discretion. See In re Labatt Food Svc., L.P., 279 S.W.3d 640, 643 (Tex.

2009) (orig. proceeding); Cleveland Constr., Inc. v. Levco Constr., Inc., 359

S.W.3d 843, 851–52 (Tex. App.—Houston [1st Dist.] 2012, pet. dism‘d)

(explaining standards of review for arbitration appeals). Under this standard, we

defer to the trial court‘s factual determinations that are supported by the record

and review legal questions de novo. Cleveland Constr., Inc., 359 S.W.3d at 851–

52.




                                        8
      B.     Choice of Law

      The Reinsurance Agreement states that it ―shall be governed by and

construed in accordance with the laws of the State of New York.‖ Although New

Hampshire observes that the Reinsurance Agreement is governed by New York

law and cites a number of New York cases in its briefing, it predominantly relies

on Texas caselaw and has confirmed on several occasions that there is no

relevant distinction between Texas and New York law. ―As there appears to be

no conflict of laws, ‗there can be no harm in applying Texas law.‘‖              In re

AdvancePCS Health L.P., 172 S.W.3d 603, 606 (Tex. 2005) (orig. proceeding)

(quoting Compaq Computer Corp. v. Lapray, 135 S.W.3d 657, 672 (Tex. 2004));

Aldridge v. Thrift Fin. Mktg., LLC, 376 S.W.3d 877, 882 (Tex. App.—Fort Worth

2012, no pet.) (reasoning similarly). We therefore apply Texas law.

      C.     Magellan’s Non-Breach of Contract Claims

      A party attempting to compel arbitration must establish a valid arbitration

agreement whose scope includes the claims asserted.2             In re Dillard Dep’t

Stores, Inc., 186 S.W.3d 514, 515 (Tex. 2006) (orig. proceeding). In determining

whether a claim falls within the scope of an arbitration agreement, we focus on

the factual allegations of the complaint, rather than the legal causes of action

asserted. See Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 271 (Tex. 1992).

Any doubts about whether Magellan‘s non-breach of contract claims fall within

      2
        Whether the Federal Arbitration Act (FAA), Texas Arbitration Act, or both
apply is not at issue in this appeal, nor does it affect our analysis or jurisdiction.


                                          9
the scope of the arbitration agreement must be resolved in favor of arbitration.

Prudential Sec. Inc. v. Marshall, 909 S.W.2d 896, 899 (Tex. 1995). The policy in

favor of enforcing arbitration agreements is so compelling that a court should not

deny arbitration unless it can be said with positive assurance that an arbitration

clause is not susceptible of an interpretation that would cover the dispute at

issue.    Id.   If a party establishes a valid arbitration agreement whose scope

includes the claims asserted, the burden shifts to the party opposing arbitration to

prove its defenses to arbitration. AdvancePCS Health, L.P., 172 S.W.3d at 607.

         Here, there is no dispute that a valid arbitration agreement exists. As for

whether Magellan‘s non-breach of contract claims are subject to arbitration, the

fraud claim complains of ―words, acts, [and] conducts [by New Hampshire] . . .

which were false.‖       The breach of fiduciary duty claim alleges that New

Hampshire ―acted in its own best interest and contrary to the interest of

Magellan.‖ The conversion claim alleges that in withdrawing trust funds, New

Hampshire ―converted property which belonged to Magellan.‖ The theft claim

alleges that New Hampshire ―unlawfully appropriated or stole the funds contained

in the trust account.‖ And the accounting claim alleges that New Hampshire

―should be required to render a full and complete detailed accounting of all claims

and monies paid.‖ Thus, to some extent, each of Magellan‘s claims implicates

New Hampshire‘s duties and responsibilities under the Reinsurance Agreement.

We therefore cannot conclude with positive assurance that Magellan‘s non-

breach of contract claims do not require—or at a minimum, touch upon in some


                                          10
way—the interpretation of the Reinsurance Agreement. See, e.g., In re FirstMerit

Bank, N.A., 52 S.W.3d 749, 754–56 (Tex. 2001) (compelling arbitration of tort

claims related to financing contract); Jack B. Anglin Co., 842 S.W.2d at 271

(―Although the City‘s misrepresentation claims are grounded in legal theory

distinct from its contract claim, they are factually intertwined, and thus are subject

to the arbitration provision of the contract.‖); Hou-Scape, Inc. v. Lloyd, 945

S.W.2d 202, 205–06 (Tex. App.—Houston [1st Dist.] 1997, orig. proceeding)

(holding that tort claims were arbitrable because they arose out of and were

related to contract). We hold that Magellan‘s fraud, breach of fiduciary duty,

conversion, theft, and accounting claims are within the scope of the arbitration

agreement.

      D.     Magellan’s Defense to Arbitration: Judicial Estoppel

      Magellan argues that even if all of its claims are subject to arbitration, New

Hampshire is judicially estopped from compelling arbitration of those claims. We

agree.

      The doctrine of judicial estoppel precludes a party who successfully

maintains a position in one proceeding from afterwards adopting a clearly

inconsistent position in another proceeding to obtain an unfair advantage.

Ferguson v. Bldg. Materials Corp. of Am., 295 S.W.3d 642, 643 (Tex. 2009);

Pleasant Glade Assembly of God v. Schubert, 264 S.W.3d 1, 6 (Tex. 2008), cert.

denied, 555 U.S. 1137 (2009). It is not intended to punish inadvertent omissions

or inconsistencies but rather to prevent parties from playing fast and loose with


                                         11
the judicial system for their own benefit. Ferguson, 295 S.W.3d at 643. As one

court has observed, the doctrine‘s purpose is ―to prohibit the deliberate shifting of

position to suit exigencies of each particular case that may arise concerning the

subject matter in controversy.‖ Moore v. Neff, 629 S.W.2d 827, 829 (Tex. App.—

Houston [14th Dist.] 1982, writ ref‘d n.r.e.).

       The record demonstrates that Magellan first raised the issue of arbitration

at the outset of the TCI litigation, when it sought to stay those proceedings. New

Hampshire argued against arbitration and described the dispute as regarding the

―calculation of sums owing,‖ which according to New Hampshire, did not involve

the interpretation of the Reinsurance Agreement. The TCI lower court agreed

with New Hampshire and denied Magellan‘s request to stay the proceedings for

arbitration.   Thus, in successfully defending against arbitration in the TCI

litigation, New Hampshire convinced the TCI lower court that the scope of the

proceedings there did not involve any interpretation of the Reinsurance

Agreement.

       Magellan raised the issue of arbitration again in the New York proceeding

when it sought to enjoin the TCI proceedings.        As in the TCI litigation, New

Hampshire argued against arbitration, describing its petition in the TCI action as

one that was ―not based upon a dispute regarding the interpretation of the

Reinsurance Agreement‖ and explaining that ―Magellan‘s statutory insolvency

under‖ TCI law did not involve the interpretation of the Reinsurance Agreement.

The New York court declined to stray from the reasoning of the TCI lower court‘s


                                          12
order denying arbitration and, like the TCI lower court, adopted New Hampshire‘s

narrow interpretation of the proceedings, concluding that ―[t]he question of

whether petitioner owes money is not an interpretation of the‖ Reinsurance

Agreement.

      In September 2005, as the TCI litigation progressed, Magellan initiated the

Texas action and sought nine declarations regarding the parties‘ rights ―under the

Reinsurance Agreement.‖ Notwithstanding Magellan‘s unambiguous reference

explaining its intent in seeking the declarations (to determine rights ―under the

Reinsurance Agreement‖), even the most cursory review of the nine declarations

reveals that each indisputably required an interpretation of the Reinsurance

Agreement; they stated,

      a.     Whether [New Hampshire] validly withdrew funds from the
             trust and whether [New Hampshire] is obligated to refund
             amounts previously withdrawn in error from the trust and the
             amount of such refund, including interest;

      b.     Whether the Reinsurance Agreement allows a deduction for
             ―timing differences‖;

      c.     Whether [New Hampshire] can withdraw amounts from the
             Trust without providing supporting detailed claims
             documentation that supports the amounts withdrawn;

      d.     Whether [New Hampshire] has sole discretion to summarily
             determine the amount of unearned premium reserves
             pursuant to Article IV of the Reinsurance Agreement;

      e.     the detail required in the cession statements under Article VII
             of the Reinsurance Agreement;

      f.     Magellan‘s right to audit [New Hampshire‘s] books and
             records under Article XI of the Reinsurance Agreement; and


                                        13
            whether, under Article XI of the Reinsurance Agreement,
            Magellan sufficiently disputed the amount [New Hampshire]
            claims is owing to the Trust;

      g.    the identity of dealers and/or contracts covered by the
            Reinsurance Agreement;

      h.    whether, under Article XI of the Reinsurance Agreement,
            Magellan‘s request to audit [New Hampshire‘s] books and
            records can be conditioned on Magellan depositing the
            amount requested by [New Hampshire] into the Trust, and
            vice versa; and

      i.    the correct and valid amount of the reinsurance claims, if any,
            by [New Hampshire] against Magellan.

Although New Hampshire had successfully argued against arbitration by narrowly

defining both the purpose and scope of the proceedings as involving only a

determination of the amount of money owed by Magellan to New Hampshire,

when it sought to dismiss or abate Magellan‘s Texas lawsuit, it argued that ―[t]he

issues Magellan now asks this Court to decide [which obviously involved an

interpretation of the Reinsurance Agreement] mirror those raised, litigated[,] and

currently pending in the TCI . . . Action.‖   [Emphasis added.]     Indeed, New

Hampshire successfully argued,

      The central issue in the TCI lawsuit is whether Magellan should be
      wound up for its failure to adequately fund a trust account pursuant
      to the terms of a reinsurance agreement between the parties.
      Though that precise issue is not presented to this Court in
      Magellan‘s request for declaratory judgment, all issues presented
      are part and parcel of that determination and all concern the amount
      of Magellan‘s debt to [New Hampshire], an issue that will be
      addressed by the liquidator appointed in the TCI Action. Because all
      issues in this subsequently-filed action may be, or currently are, in
      litigation in the TCI lawsuit, this Court should dismiss Magellan‘s
      request for declaratory judgment. [Emphasis added.]


                                       14
      Thus, in seeking to dismiss or abate the Texas action, New Hampshire‘s

interpretation of the scope of the TCI litigation shifted from its earlier narrow

description of the proceedings as merely involving a determination of the amount

of money owed by Magellan to broadly construing the proceedings to include all

of Magellan‘s declarations seeking to interpret multiple parts of the Reinsurance

Agreement. Notwithstanding this, and perhaps intending to quash any further

attempts by Magellan to compel arbitration in light of New Hampshire‘s amended

perception of the scope of the proceedings there, New Hampshire stated in a

footnote in its motion to dismiss or abate that it ―denies that there is a dispute

‗arising out of interpretation of the Reinsurance Agreement,‘‖ a statement that

irreconcilably conflicted with its arguments broadly construing the scope of the

TCI litigation. New Hampshire subsequently prevailed, just as it had in the TCI

lower court and the New York litigation.

      Several years later, after the TCI litigation had concluded, New Hampshire

moved to compel arbitration of Magellan‘s claims, which at the time were those

included in Magellan‘s first amended petition—the nine declarations. According

to New Hampshire, ―a valid arbitration agreement exists that is in writing,

encompasses the subject matter of the dispute, involves transactions in interstate

commerce, and therefore requires arbitration under the FAA.‖ Although Magellan

quickly filed its second amended petition, removing the declaration requests and




                                           15
substituting them with its current claims, New Hampshire‘s intent was clear: it

now wanted to arbitrate Magellan‘s claims.

      The foregoing portions of the record thus show that, regarding the scope of

the TCI and New York litigation as it pertained to the propriety of compelling

arbitration, New Hampshire, to its benefit, maintained a position in the TCI lower

court and the New York proceeding that was inconsistent with its position in the

Texas action. Now, a number of years later, New Hampshire is attempting to

accomplish a similar feat; it successfully argued against arbitration of Magellan‘s

claims in the TCI litigation and the New York proceeding but now wants to

compel arbitration. The unfair advantage that New Hampshire stands to gain

simply consists of the fruits of shifting position to suit the exigencies of each

particular cause. See Ferguson, 295 S.W.3d at 643; Moore, 629 S.W.2d at 829.

This is the precise conduct that judicial estoppel is meant to prohibit.

      New Hampshire argues on rehearing that judicial estoppel is inapplicable

because the doctrine does not apply to contradictory positions taken in the same

proceeding. See Pleasant Glade Assembly of God, 264 S.W.3d at 6, 8. It states

that ―[n]either the Court nor Magellan contends that [New Hampshire‘s] motion to

compel arbitration is inconsistent with [New Hampshire‘s] position in the TCI and

New York courts. The only alleged inconsistencies are the statements from [New

Hampshire‘s] motion to dismiss or abate.‖          New Hampshire misreads our

analysis. We do not rely upon any inconsistency between the motion to dismiss

or abate and the motion to compel arbitration in the Texas action to support our


                                         16
conclusion that New Hampshire is judicially estopped from compelling arbitration.

Our conclusion applying judicial estoppel rests upon the inconsistencies between

New Hampshire‘s motion to compel arbitration in the Texas proceeding and its

arguments and contentions in the TCI and New York proceedings contesting

arbitration. Pleasant Glade Assembly of God is therefore inapposite.

      New Hampshire argues that its prior conduct contesting arbitration is

irrelevant because it has never argued that the claims alleged by Magellan in its

second amended petition are not arbitrable.      According to New Hampshire,

―Magellan identifies no case law or other authority . . . holding that an alleged

waiver or estoppel of a party‘s right to arbitration applies to a later-amended

complaint alleging entirely new causes of action.‖ This is a compelling argument,

but it is ultimately unpersuasive because it relies upon a hypertechnical

perspective of the proceedings that is inconsistent with the reality of what this

dispute has always been, and continues to be, about—both parties‘ rights and

duties and compliance or noncompliance with one or more terms of the

Reinsurance Agreement.

      When Magellan filed its original petition in the Texas action, it attached

correspondence between it and New Hampshire dating as far back as 2002.

Even at this early stage of the dispute, it was apparent that the disagreements

between the parties involved their respective rights and duties under the

Reinsurance Agreement—New Hampshire defended its claims handling and

accounting and demanded that Magellan deposit funds into the trust account,


                                       17
and Magellan challenged New Hampshire‘s claims amounts, demanded to

inspect New Hampshire‘s books and records, and refused to deposit additional

funds into the trust account. The correspondence abounds with references to the

Reinsurance Agreement.

      In the TCI litigation, New Hampshire convinced the TCI lower court that

arbitration was unnecessary because the dispute involved only the calculation of

money owed by Magellan, an exclusively non-interpretive, factual matter. But the

record belies this overly narrow characterization; the dispute involved much more

than a simple debt, and Magellan tried to explain this in the TCI litigation. Philip

Apgar‘s affidavit, which Magellan appears to have filed as part of its first appeal

of the lower court‘s order requiring Magellan‘s business to be wound up,

illuminated the extent of the dispute between the parties, stating,

             It is apparent that there are significant differences between the
             parties. They are in effect of at least two types.

      (1)    First there are issues regarding the principles on which [New
             Hampshire] has produced its Cession Statements and the
             appropriate sums that ought to be included within them.
             These include questions regarding the extent of [New
             Hampshire‘s] discretion to charge its costs against premiums
             and to determine the level of unearned premium reserve.

      (2)    Secondly, there is the question of whether under the
             Reinsurance Agreement the parties intended that Magellan,
             when faced with a payment demand which could only be
             validated by an audit of the Petitioner‘s records under Art XI,
             would in effect be barred from challenging that demand unless
             it had exercised its audit right within two calendar quarters of
             service of the demand by the Petitioner.

                   ....


                                        18
             I am advised that [the] winding up procedure ought not to be
      used for claims other than genuinely undisputed debts and claims
      where, though there is a dispute, the dispute can be shown easily
      and quickly to be not genuine in the sense of being groundless. I
      would submit that it is apparent from what I say above that here
      there is a real dispute which is still unresolved after months of
      detailed argument by myself and, on [New Hampshire‘s] behalf, Ms.
      Cheshire.

            It is moreover a dispute of a type which the parties have
      agreed should be dealt with by arbitration and which is particularly
      suitable for arbitration.

      And particularly telling is the judgment of the Lords of the Judicial

Committee of the Privy Council. Even though the limited issue before the high

court concerned New Hampshire‘s status as a ―creditor,‖ the judgment includes

approximately five single-spaced pages of excerpts from the Reinsurance

Agreement.       Given that New Hampshire‘s and Magellan‘s relationship is

governed by the Reinsurance Agreement, it is no surprise that the high court

chose to begin its analysis by extensively referencing the Reinsurance

Agreement‘s terms.

      In   the   New   York   proceeding,   New   Hampshire   persisted   in   its

characterization of the dispute as one not involving the interpretation of the

Reinsurance Agreement, but in doing so, it simultaneously observed that the

dispute involved Magellan‘s failure to deposit funds into a trust account ―as

required by the Reinsurance Agreement.‖ [Emphasis added.] Thus, even when

narrowly characterizing the scope of the dispute before the New York court, New




                                       19
Hampshire could not escape the significance of the Reinsurance Agreement as it

pertained to New Hampshire‘s relationship and dispute with Magellan.

      And finally, although Magellan has amended its petition several times, its

claims in the Texas litigation—whatever label they have been given—have

consistently implicated an interpretation of the terms of the Reinsurance

Agreement. Cf. Jack B. Anglin Co., 842 S.W.2d at 271 (reasoning that we focus

on the factual allegations of the complaint, rather than the legal causes of action

asserted, when determining whether claim falls within the scope of an arbitration

agreement).

      A thorough review of the record thus reveals this: Neither New

Hampshire‘s varying characterizations of the proceedings nor the labels attached

to the claims alleged by Magellan in its petitions define the essence of the

dispute between New Hampshire and Magellan.             The dispute has always

centered around, and continues to entail, each party‘s rights and duties and

compliance or noncompliance under the Reinsurance Agreement. On more than

one occasion, in one form or another, New Hampshire has argued against the

arbitrability of this dispute. Its conduct has been overwhelmingly inconsistent

with its present attempt to compel arbitration.

      New Hampshire argues on rehearing that we should not rely upon its

conduct in the TCI litigation to support a determination of judicial estoppel

because to do so requires, erroneously, a broad construction of the arbitration

provision. But reliance on New Hampshire‘s conduct in the TCI litigation does


                                         20
not require us to broadly construe the arbitration provision—or to even construe it

at all. As our analysis demonstrates, we merely review numerous documents

evidencing years of litigation—a unique perspective unavailable to the other

courts—to conclude that the claims asserted by Magellan in its second amended

petition involve facts and issues that are no different than the issues contested by

the parties in the other forums.

      Accordingly, in light of all the foregoing, we cannot agree with New

Hampshire‘s overriding argument that it has never challenged the arbitrability of

the claims alleged by Magellan in its second amended petition.

      We hold that New Hampshire is judicially estopped from compelling

arbitration and, therefore, that the trial court did not abuse its discretion by

denying New Hampshire‘s motion to compel arbitration.           We overrule New

Hampshire‘s sole issue.

                                   V. CONCLUSION

      Having overruled New Hampshire‘s only issue, we affirm the trial court‘s

order denying New Hampshire‘s motion to compel arbitration.




                                                   BILL MEIER
                                                   JUSTICE

PANEL: GARDNER, MCCOY, and MEIER, JJ.

DELIVERED: May 2, 2013


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