                                                                                                ACCEPTED
                                                                                            03-15-00408-CV
                                                                                                    6934112
                                                                                 THIRD COURT OF APPEALS
                                                                                            AUSTIN, TEXAS
                                                                                       9/15/2015 2:29:57 PM
                                                                                          JEFFREY D. KYLE
                                                            Oral Argument Requested                  CLERK



                                No. 03-15-00408-CV
                                                                      FILED IN
                                                               3rd COURT OF APPEALS
                                                                   AUSTIN, TEXAS
                                                               9/15/2015 2:29:57 PM
                IN THE COURT OF APPEALS                  OF TEXASJEFFREY   D. KYLE
                                                                       Clerk
                     THIRD DISTRICT, AT AUSTIN


          ALAN B. RICH d/b/a LAW OFFICE OF ALAN B. RICH,

                                      Appellant,

                                          vs.

      CANTILLO & BENNETT, L.L.P., SPECIAL DEPUTY RECEIVER
          OF SANTA FE AUTO INSURANCE COMPANY, INC.,

                                      Appellee.


          Appeal from the 98th Judicial District Court of Travis County, Texas
              Hon. Amy Clark Meachum, 201st District Court, Presiding
                      Trial Court Cause No. D-1-GN-15-000799



                     APPELLANT’S REPLY BRIEF


Alan B. Rich
State Bar No. 16842350
4244 Renaissance Tower
1201 Elm Street
Dallas, Texas 75270
214.744.5100
214.744.5101 [fax]
arich@alanrichlaw.com

COUNSEL FOR APPELLANT
                                             Table of Contents

Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

I.      Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II.     Reply Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

        A.       There Was No Failure of Proof. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

        B.       The Receiver’s Suit Constitutes a Dispute over Fees. . . . . . . . . . . . . . 7

        C.       When the underlying facts intertwine and there is an arbitrable
                 cause of action, the entire case is subject to arbitration. . . . . . . . . . . . 8

        D.       The arbitration savings clause of the Insurance Code does
                 not parse a receiver's capacity in bringing suit, but instead
                 unambiguously provides that any and all arbitration clauses
                 of an insolvent insurer are valid and enforceable against
                 the receiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

        E.       Under the "Eight-Corners" rule, the fees paid in the Home State
                 and Transatlantic matters are not at issue in this case, and when a
                 third-party attempts to assert rights arising out of a contract
                 containing an arbitration clause, that third-party becomes bound
                 to the arbitration clause. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

        F.       The legal services agreement clearly states that any matter
                 related to the Lincoln General litigation was encompassed by
                 the legal services agreement, and the re-filed Lincoln General
                 case is definitively related to the initially filed, dismissed, then
                 re-filed case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14




                                                        -i-
III.    Conclusion and Prayer for Relief.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Certificate of Compliance.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Certificate of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17




                                                       -ii-
                                           Index of Authorities

Cases                                                                                                        Page

City of Houston v. Bates, 406 S.W.3d 539 (Tex. 2013). . . . . . . . . . . . . . . . . . . . 11

Daniels v. Walters, No. 03-03-00375-CV, 2004 WL 741672
      (Tex. App. – Austin, April 8, 2004, pet. denied). . . . . . . . . . . . . . . . . . . . . . 9

Hillkee, Inc. v. Navarro Sav. Ass'n, 632 S.W.2d 374
      (Tex. App. – Waco 1982, no writ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

In re FirstMerit Bank, N.A., 52 S.W.3d 749 (Tex. 2001). . . . . . . . . . . . . . . . . . . 13

In re Sun Communications, Inc., 86 S.W.3d 313
       (Tex. App. – Austin 2002, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

National Union Fire Ins. Co. of Pittsburgh, Pa. v. Pennzoil Co.,
      866 S.W.2d 248 (Tex. App. – Corpus Christi 1993, no pet.). . . . . . . . . . . . . 4

Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266 (Tex. 1992). . . . . . . . . . . . . . . 9

Prudential Sec. Inc. v. Marshall, 909 S.W.2d 896 (Tex. 1995). . . . . . . . . . . . . . . . 7

Reagan Nat. Advertising of Austin, Inc. v. Hazen, No. 03-05-00699-CV,
     2008 WL 2938823 (Tex. App. – Austin, July 29, 2008, no pet.). . . . . . . . . . 9

Robinson v. Ultramar Diamond Shamrock Corp., No. 01-02-0738-CV,
      2003 WL 21101730 (Tex. App. – Houston [1st Dist.], May 15, 2003,
      pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Simi, Inc. v. HEB Grocery Co., L.L.P, No. 01-11-00506-CV,
       2012 WL 1143649 (Tex. App. – Houston [1st Dist.], Apr. 5, 2012,
       pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Vireo, P.L.L.C. v. Cates, 953 S.W.2d 489
      (Tex. App. – Austin 1997, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . 9


                                                       -iii-
Statutes                                                                                                 Page

Section 443.005(e), T EX. INS. CODE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Section 443.154(m), T EX. INS. CODE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Section 443.206(a), T EX. INS. CODE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Sections 443.154(s), TEX. INS. CODE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Rule 103, T EX. R. EVID... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Rule 33.1(a), T EX. R. APP. P RO.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7




                                                     -iv-
                                               I.

                                        Introduction

         Leading with the chin, the receiver’s opening salvo is to claim there was a

failure of proof below since the legal services agreement was not formally

introduced into evidence at the hearing. That position is, however, utterly devoid

of merit and lacking in candor because the record shows that the agreement was

before the trial court and actively debated at the hearing, without any objection

whatsoever by the receiver. Indeed, and more troubling, the receiver’s own pre-

hearing response to the motion to compel arbitration and affidavit, as well as

receiver’s counsel’s statements at the hearing, conceded the existence and content

of the agreement and its arbitration clause. This means, of course, that the

receiver’s newly minted evidentiary objection was waived and cannot now unfairly

be employed in this Court to ambush Appellant.

         As for the merits, the receiver’s brief is remarkable not for its content, but

for what is glaringly absent. The receiver completely ignores a host of crucial

issues, making no discernable response to the primary legal issues presented to this

Court.

         !      The receiver ignored the authorities holding that when the underlying

                facts intertwine and there is an arbitrable cause of action, the entire

                case – including all other causes of action – is subject to arbitration.

                                              -1-
!   The receiver ignored the canons of statutory interpretation, which

    teach that the arbitration savings clause of the Insurance Code does

    not parse a receiver’s capacity in bringing suit, but instead

    unambiguously provides that any and all arbitration clauses of an

    insolvent insurer’s agreements are valid and enforceable against the

    receiver.

!   The receiver ignored the “Eight-Corners” rule and by ipse dixit argued

    that the fees paid in the Home State and Transatlantic matters are at

    issue in this case, but they are not.

!   The receiver ignored the authorities holding that when a third-party

    attempts to assert rights arising out of a contract containing an

    arbitration clause, that third-party becomes bound to the arbitration

    clause.

!   The receiver ignored the language of the arbitration agreement which

    clearly states that any matter related to the Lincoln General litigation

    was encompassed by the legal services agreement, definitively

    undermining the receiver’s argument that the post-failed-settlement

    re-filing of the Lincoln General litigation was not subject to the legal

    services agreement.


                                  -2-
       The only important issue which the receiver did not ignore is whether any

part of its suit against the Appellant can plausibly be termed a dispute over fees

paid to the Appellant by Santa Fe. Of course, the receiver argued that its suit does

not concern fees paid by Santa Fe; but that position finds absolutely no support in

the record. The receiver’s “this is not a fee dispute” argument is based solely on a

recitation of the legal pigeon-holes into which it believes its factual allegations fall,

culminating in a declaration of victory since none of its causes of action are titled

“Disputed Fees.” Yet, a simple examination of the receiver’s petition quickly

reveals that the factual basis for the case is fees paid by Santa Fe to Appellant, and

the primary remedy sought is the return of all of the fees paid by Santa Fe to the

Appellant. If that is not a dispute over fees, then there is no such thing as a fee

dispute.

       There was a valid and binding arbitration clause in this case, and the trial

court erred in not enforcing it. This Court must, therefore, reverse and render

judgment that the claims of the receiver against the Appellant must be arbitrated.




                                              -3-
                                           II.

                                   Reply Argument

      A.     There Was No Failure of Proof

      The Receiver first claims that the decision must be affirmed because, at the

hearing below, the Appellant did not “introduce into evidence” the legal services

agreement which contained the arbitration clause. This complaint was waived.1

      The legal services agreement containing the arbitration provision was before

the trial court at the hearing. Indeed, the trial court’s Order acknowledged that the

agreement was before the court and considered in reaching its decision. CR 183

(“After reviewing Defendant Alan Rich's Motion to Compel Arbitration and Plea

in Abatement,2 the response, the briefs, the evidence, the pleadings3 and the

arguments of counsel, the Court rules as follows”). Not only was the agreement

      1
         Although the receiver cites a case that likens the proceedings on a motion
to compel arbitration to a summary judgment, and while that may be sometimes the
case, it was not the case here, since there was a hearing at which the receiver called
the Appellant to testify. A better analogy would be the quasi-evidentiary hearings
which sometimes take place on procedural motions such as motions to strike
interventions. See, e.g., National Union Fire Ins. Co. of Pittsburgh, Pa. v.
Pennzoil Co., 866 S.W.2d 248 (Tex. App. – Corpus Christi 1993, no pet.). In such
cases, there is no need for evidentiary formality. Id. at 250-51.
      2
       The legal services agreement was attached to Appellant’s motion and brief
to compel. CR 103 at 139.
      3
       The legal services agreement was attached to Appellant’s Original Answer
(CR 24 at 30).
                                           -4-
discussed extensively at the hearing. But even prior to the hearing, the receiver

conceded the existence and nature of the legal services agreement and its

arbitration provision.

       In the receiver’s opposition brief, the agreement’s existence and content is

admitted in paragraphs 7 and 16 (CR 38, 41),4 as well as in the receiver’s own

supporting affidavit in paragraph 10. CR 485 Moreover, in the receiver’s hearing

brief, provided to the trial court at the hearing, it again specifically admitted that:

“The arbitration language in the only agreement between Rich and Santa Fe is very


       4
        “On August 6, 2008, Gamma Group, Santa Fe, CSi Agency Services, Inc.,
Alpha Partners, Ltd., James D. Maxwell, and James T. Maxwell entered into an
engagement agreement with Rich for legal representation in Cause No. 3:07 -CV
-1985-B, Lincoln General Insurance Co. v. US Auto Insurance Services, Inc., et al.
("Lincoln General I Lawsuit"), in the U.S. District Court, Northern District of
Texas, Dallas Division.”

       “Rich contends that language in a letter sent to Santa Fe and five other
parties for his services in the Lincoln General I Lawsuit creates a binding
arbitration agreement for all claims in this lawsuit. Rich Motion to Compel at 1-2.
The language in this alleged agreement states: ‘In the event of a fee in dispute
which is not readily resolved, you have the right to request arbitration under
supervision of the state or local bar associations for the jurisdictions in which we
practice ....Any dispute regarding payment shall be submitted to arbitration.’”
       5
          “On August 6, 2008, Gamma Group, Santa Fe, CSi Agency Services, Inc.,
Alpha Partners, Ltd., James D. Maxwell, and James T. Maxwell entered into an
engagement agreement with Alan Rich for legal representation in Cause No. 3:07-
CV-1985-B, Lincoln General Insurance Co. v. US Auto Insurance Services, Inc.,
et al. (the "Lincoln General I Lawsuit"), in the U.S. District Court, Northern
District of Texas, Dallas Division.”
                                             -5-
limited. The paragraph refers specifically to ‘fee disputes’ and ‘disputes regarding

payment.’” CR 194.

       At the hearing itself, the receiver twice admitted the existence of an

agreement to arbitrate between Appellant and Santa Fe:

       !      “There are two Lincoln General lawsuits. There is a – there is a

              arbitration agreement between Mr. Rich and Santa Fe, what I refer to

              as Lincoln General I.” (RR Vol. 2 at 35)

       !      Because we’ve got four – four sets of transfers, but only an agreement

              to arbitrate on one of them. (RR Vol. 2 at 42)

       The complaint the receiver makes now, for the first time on appeal, that the

legal services agreement was not “formally” introduced into “evidence” has been

waived. To sum up the situation:

       1.     The trial court’s Order stated that it had the arbitration agreement

before it and relied upon it in making its decision.

       2.     The agreement and arbitration provision were discussed extensively at

the hearing – without objection.

       3.     The receiver admitted the agreement’s existence and arbitration

provisions, even at points reciting its terms, (a) in its written response to the

motion to compel; (b) in the receiver’s affidavit in support of its written response


                                             -6-
to the motion to compel; (c) in the receiver’s hearing brief; and (d) in the receiver’s

own representations to the court at the hearing.

       Considering the foregoing, the receiver’s complaint on appeal concerning

the evidentiary propriety of legal agreement cannot now be considered. See Rule

103, T EX. R. EVID.; Rule 33.1(a), T EX. R. APP. P RO.; see also Simi, Inc. v. HEB

Grocery Co., L.L.P, No. 01-11-00506-CV, 2012 WL 1143649, *3 (Tex. App. –

Houston [1st Dist.], Apr. 5, 2012, pet. denied) (when party-opponent provides

evidence to court, it waives any appellate challenge to that evidence); Hillkee, Inc.

v. Navarro Sav. Ass'n, 632 S.W.2d 374, 374-75 (Tex. App. – Waco 1982, no writ)

(documents attached to pleadings are proper evidence absent objection); Robinson

v. Ultramar Diamond Shamrock Corp., No. 01-02-0738-CV, 2003 WL 21101730,

*2 (Tex. App. – Houston [1st Dist.], May 15, 2003, pet. denied) (“Robinson also

complains, for the first time on appeal, that pleadings are not competent summary

judgment evidence. This complaint is waived. See TEX. R. APP. P. 33.1.”)

       B.     The Receiver’s Suit Constitutes a Dispute over Fees

       Of course, “a court should not deny arbitration unless it can be said with

positive assurance that an arbitration clause is not susceptible of an interpretation

which would cover the dispute at issue.” See Prudential Sec. Inc. v. Marshall, 909

S.W.2d 896, 899 (Tex. 1995) (emphases by the Court). Put in terms particular to


                                            -7-
this case, the issue is whether any part of the receiver’s suit against the Appellant

can plausibly be termed a dispute over fees paid to the Appellant by Santa Fe. The

receiver understandably argues that this case is not a dispute about fees, but that

just disregards the substance of the petition. The receiver’s argument is based on

the causes of action it asserts, while ignoring the underlying facts that it pleads. To

be sure, there is no cause of action titled “Fee Dispute,” yet that is immaterial. The

receiver’s petition reveals, unequivocally, that the factual basis for the case is that

Santa Fe paid attorney’s fees to Appellant that the receiver alleges should not have

been paid. The primary remedy sought by the receiver is the return of all of the

fees paid by Santa Fe to the Appellant. Other than actually having a cause of

action titled “Return of Disputed Attorney’s Fees,” the situation really cannot be

much clearer, especially given the applicable law, which presumes that an

arbitration clause covers a claim unless it is clear that it does not.

       C.     When the underlying facts intertwine and there is an arbitrable
              cause of action, the entire case is subject to arbitration

       The receiver spends a great deal of time and effort attempting to convince

this Court that, for a whole host of reasons, certain of the causes of action it brings

cannot be arbitrated. Whether the claims “belong” to Santa Fe, whether they

existed at the time of the legal services agreement, whether they are statutory or



                                             -8-
sound in tort, whether the receiver is “special” and unlike ordinary litigants, and on

and on. All of these arguments are, however, red herrings, given well-known

arbitration law that the receiver simply ignored – a suit making allegations that fall

under the terms of an arbitration clause is subject to arbitration, lock, stock and

barrel.

          A single example suffices to prove the point. In is beyond debate that at

least one cause of action and the underlying facts alleged in relation thereto against

Appellant could only be brought by a client (i.e. Santa Fe, now the receiver)

against his or her lawyer, i.e. the “breach of fiduciary duty” claim seeking the fee

forfeiture remedy. Reagan Nat. Advertising of Austin, Inc. v. Hazen, No.

03-05-00699-CV, 2008 WL 2938823, *2 (Tex. App. – Austin, July 29, 2008, no

pet.); Daniels v. Walters, No. 03-03-00375-CV, 2004 WL 741672, *3 (Tex. App. –

Austin, April 8, 2004, pet. denied). Since it is manifest that the factual

underpinnings of the breach of fiduciary duty claims are closely intertwined with

those underlying all of the causes of action, the entire case is subject to arbitration.

See, e.g., In re Sun Communications, Inc., 86 S.W.3d 313, 318 (Tex. App. – Austin

2002, no pet.); Vireo\, P.L.L.C. v. Cates, 953 S.W.2d 489, 494 (Tex. App. – Austin

1997, pet. denied), citing Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 271




                                             -9-
(Tex. 1992).6

       D.     The arbitration savings clause of the Insurance Code does not
              parse a receiver’s capacity in bringing suit, but instead
              unambiguously provides that any and all arbitration clauses of
              an insolvent insurer are valid and enforceable against the receiver

       Closely related to the prior argument, the receiver argues that it is “special,”

and, unlike ordinary litigants, it cannot be forced to arbitrate claims simply because

the insolvent insurer agreed to do so. In particular, the receiver asserts that the

“capacity” in which it sues is somehow a critical distinction under the Insurance

Code. This time the receiver ignores well-worn rules of statutory interpretation.

The Insurance Code specifically provides, clearly and unambiguously, that the

receiver is bound by arbitration provisions of the insurer: “Except as to claims

against the estate, nothing in this chapter deprives a party of any contractual right

to pursue arbitration.” Section 443.005(e), TEX. INS. CODE.

       In the arbitration savings clause, the Legislature did not parse the receiver’s

capacity. This is of critical importance in interpreting the statute because the

Legislature did precisely that – make distinctions based on capacity – in other



       6
        It is thus not necessary to refute the actual litany of reasons certain causes
of action are argued to be beyond the scope of the arbitration provision.
Nevertheless, they are not beyond the scope, as argued in the Appellant’s opening
brief.

                                           -10-
sections of the same chapter of the insurance code.7 Since the Legislature made the

arbitration savings clause absolute when the receiver is suing, and because the

Legislature could have formulated the savings clause in the manner the receiver

wants, but did not,8 this Court must give the savings clause its plain meaning. That

is to say, any contractual right to arbitration is preserved when the receiver sues,

period. See, e.g., City of Houston v. Bates, 406 S.W.3d 539, 544, 546 (Tex. 2013)

(a statutory term (like “any” in this case) should be given its “plain meaning”

unless that leads to absurd results, and it is presumed (as is the case here) that “the

omission of a phrase contained within similar statutes had a purpose.”)

       The “capacity” in which the receiver claims it has sued is immaterial to

whether an arbitration clause can be interposed against a receiver’s suit.9




       7
           Compare Sections 443.206(a), 443.154(m), 443.154(s), T EX. INS. CODE.
       8
         Viz. "Except as to claims against the estate where the receiver is acting in
the capacity of a policyholder, creditor, member, or stockholder of the insurer,
nothing in this chapter deprives a party of any contractual right to pursue
arbitration."
       9
         Given that capacity is immaterial under the arbitration savings clause, it is
not necessary to address the various sui generis bankruptcy code cases cited by the
receiver. Notably, none address the statute at issue in this case, and none were
decided in the face of a provision of the same statute which says that capacity is
immaterial when the question is whether the case must be arbitrated.

                                           -11-
      E.     Under the “Eight-Corners” rule, the fees paid in the Home State
             and Transatlantic matters are not at issue in this case, and when a
             third-party attempts to assert rights arising out of a contract
             containing an arbitration clause, that third-party becomes bound
             to the arbitration clause

      The receiver argues that its petition makes allegations against the Appellant

based on fees paid in two matters (Home State and Transatlantic) involving

Gamma Group, Inc., a Santa Fe affiliate. For that reason, the receiver asserts that

Santa Fe cannot be forced to arbitrate this case. This argument fails for two

independent reasons.10 First, reading the four-corners of the petition leaves one

completely in the dark as to how the case concerns the Home State or Transatlantic

matters. The receiver cites to a single paragraph that mentions fees paid on behalf

of Gamma Group, a paragraph that does not mention either the Home State or

Transatlantic matter. It is quite unremarkable that Gamma Group is mentioned in

the lawsuit and that paragraph, since Gamma Group was a defendant in the Lincoln

General case represented by the Appellant. Indeed, the Home State and

Transatlantic matters are referenced no where in the petition; yet Lincoln General

appears on nearly every page.




      10
          Even were the receiver were correct, which it is not, that means only that a
small part of the receiver’s suit against the Appellant is not subject to arbitration.

                                          -12-
      Second, the receiver again ignores important arbitration law, failing to

address why it matters to the outcome whether Home State or Transatlantic are at

issue. If its petition is indeed read to encompass the Home State and Transatlantic

matters, the receiver would be asserting rights that arise from the Home State and

Transatlantic legal services agreements – agreements with arbitration clauses

identical to the one in the Lincoln General agreement. The petition would have to

be read as claiming that Appellant, by accepting payments from Santa Fe,

somehow violated duties created by or related to the Home State and Transatlantic

agreements and therefore Santa Fe is entitled to disgorgement of those fees too.

The law, however, is to the contrary, and went undiscussed by the receiver. Since

the receiver, a third-party to the Home State and Transatlantic agreements, seeks to

benefit from those agreements, the receiver is also bound by the arbitration

provisions in those agreements. See, e.g., In re FirstMerit Bank, N.A., 52 S.W.3d

749, 755-56 (Tex. 2001). Thus, it matters not whether Home State and

Transatlantic are part of this case (although they are not), because arbitration is

still mandated.




                                           -13-
       F.     The legal services agreement clearly states that any matter related
              to the Lincoln General litigation was encompassed by the legal
              services agreement, and the re-filed Lincoln General case is
              definitively related to the initially filed, dismissed, then re-filed case

       The receiver differentiates between “Lincoln I” and “Lincoln II” and claims

that there can be no arbitration involving “Lincoln II” (which constitutes the bulk

of the fees which the receiver seeks to recover). It is quite remarkable that the

receiver fails to address the fact that the Lincoln General legal services agreement

clearly and unambiguously binds the parties with respect to the Lincoln General

litigation in whatever form it may take as the representation progresses over time.

Specifically, the agreement states that Rich’s “representation of you in this matter

is limited solely to the defense of the Lawsuit and proceedings directly related

thereto, to the extent needed.” (CR 140). While what the receiver calls “Lincoln

II” was simply the re-filing of the original case as contemplated by the parties’

Memorandum of Understanding after the failed settlement attempt, even were the

so-called Lincoln I case and Lincoln II case not considered to be the “same”

litigation, Lincoln II was, at the very least, a case “directly related” to the original

Lincoln General suit.

       As such, the receiver is bound by the arbitration provision to arbitrate any

fee-related claims involved in the Lincoln General litigation, no matter the Roman



                                             -14-
numeral that follows the title.11

                                             IV.

                                    Conclusion and Prayer

       The trial court legally erred by refusing to compel the dispute between the

receiver and Appellant to arbitration, as required by the arbitration provision of the

written legal services agreement concerning the Lincoln General litigation. The

receiver is bound by the agreement by virtue of the Insurance Code’s arbitration

savings clause, because it is asserting claims that only Santa Fe could assert as

client, and the facts underlying the claims only a client may assert are inextricably

intertwined with everything else alleged.

       This lawsuit is also within the scope of the legal services agreement. It is

simply impossible not to read the petition as concerning the payment by Santa Fe

of attorney’s fees to the Appellant. Further, the receiver’s position concerning fees

paid in the Home State and Transatlantic matters are not supported by any

reasonable interpretation of the petition, and regardless, the receiver is asserting


       11
         With respect to the receiver’s arguments concerning the Federal
Arbitration Act, and the associated issue of “reverse-preemption,” the Appellant
has nothing to add other than what is already argued in his opening brief. See
Appellant’s Opening Brief at 4 n.3, 16 n.6. In sum, it is not necessary to decide any
of these issues since a decision under the Texas act is based on the exact same
principals and will have precisely the same outcome.

                                            -15-
rights under those agreements which subjects the receiver to those arbitration

provisions.

       It is immaterial whether the receiver claims to be suing on behalf of creditors

and policyholders. The Insurance Code differentiates between capacities in which

a receiver can act, whenever it is material. However, the arbitration savings clause

of the Insurance Code makes no such distinctions. Instead, the code provides that

any otherwise valid arbitration provisions are preserved, with no capacity-related

limitations at all on that broad language.

       This Court must, therefore, reverse the trial court order and render a

judgment that requires the case below between the receiver and Rich be arbitrated.

Rich also seeks all relief to which he is entitled.




                                             -16-
                                         Respectfully submitted,

                                         /s/ Alan B. Rich
                                         Alan B. Rich
                                         State Bar No. 16842350
                                         4244 Renaissance Tower
                                         1201 Elm Street
                                         Dallas, Texas 75270
                                         214.744.5100
                                         214.744.5101 [Fax]
                                         arich@alanrichlaw.com

                                         COUNSEL FOR THE APPELLANT

                              Certificate of Compliance

       This document complies with the typeface requirements of T EX. R. APP. P.
9.4(e) because it has been prepared in a conventional typeface no smaller than
14-point for text and 14-point for footnotes. This document also complies with the
word-count limitations of TEX. R. APP. P. 9.4(i), if applicable, because it contains
3594 words, excluding any parts exempted by Tex. R. App. P. 9.4(i)(1).

                                         /s/ Alan B. Rich
                                         Alan B. Rich


                                Certificate of Service

      The undersigned certifies that on September 15, 2015 a copy of this brief
were served on the Attorneys for the Appellee through the court’s electronic filing
system as follows: Fuller Law Group, Christopher Fuller, State Bar No. 07515500
4612 Ridge Oak Drive, Austin, Texas 78731, Telephone: (512) 470-9544
Email: cfuller@fullerlaw.org

                                         /s/ Alan B. Rich
                                         Alan B. Rich




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