Gregory Joe Wickline v. Board of Regents for the Oklahoma Agricultural and Mechanical Colleges, Acting for and on Behalf of Oklahoma State University And James Michael Holder, in His Individual Capacity and in His Capacity as Vice President for Athletic Programs and Director Of

• Court: Court of Appeals of Texas
• Decided: March 12, 2015
• Docket: 03-15-00077-CV
• Status: Published

Opinion

ACCEPTED 03-15-00077-CV 4469224 THIRD COURT OF APPEALS AUSTIN, TEXAS 3/12/2015 9:56:12 AM JEFFREY D. KYLE CLERK No. 03-15-00077-CV FILED IN IN THE THIRD COURT OF APPEALS 3rd COURT OF APPEALS AUSTIN, TEXAS AUSTIN, TEXAS 3/12/2015 9:56:12 AM JEFFREY D. KYLE Clerk GREGORY JOE WICKLINE, Appellant,

V.

BOARD OF REGENTS FOR THE OKLAHOMA AGRICULTURAL AND MECHANICAL COLLEGES, ACTING FOR AND ON BEHALF OF OKLAHOMA STATE UNIVERSITY; AND JAMES MICHAEL HOLDER, IN HIS INDIVIDUAL CAPACITY AND IN HIS CAPACITY AS VICE PRESIDENT FOR ATHLETIC PROGRAMS AND DIRECTOR OF INTERCOLLEGIATE ATHLETICS FOR OKLAHOMA STATE UNIVERSITY, Appellees.

Appeal from the 98th District Court of Travis County, Texas, Trial Court Case No. D-1-GN-14-004391

BRIEF OF APPELLANT

BECK REDDEN LLP BECK REDDEN LLP Karson K. Thompson David J. Beck State Bar No. 24083966 State Bar No. 00000070 kthompson@beckredden.com dbeck@beckredden.com Christopher Cowan 1221 McKinney, Suite 4500 State Bar No. 24084975 Houston, TX 77010 ccowan@beckredden.com (713) 951-3700 515 Congress Avenue, Suite 1750 (713) 951-3720 (Fax) Austin, TX 78701 (512) 708-1000 (512) 708-1002 (Fax)

COUNSEL FOR APPELLANT, GREGORY JOE WICKLINE IDENTITY OF PARTIES AND COUNSEL

Appellant: Gregory Joe Wickline

Counsel for Appellant: David J. Beck State Bar No. 00000070 dbeck@beckredden.com BECK REDDEN LLP 1221 McKinney, Suite 4500 Houston, TX 77010 (713) 951-3700 (713) 951-3720 (Fax)

Karson K. Thompson State Bar No. 24083966 kthompson@beckredden.com Christopher Cowan State Bar No. 24084975 ccowan@beckredden.com BECK REDDEN LLP 515 Congress Avenue, Suite 1750 Austin, TX 78701 (512) 708-1000 (512) 708-1002 (Fax)

Appellees: Board of Regents for the Oklahoma Agricultural and Mechanical Colleges, and James Michael Holder

Counsel for Appellees: Sean Breen State Bar No. 00783715 sbreen@howreybreen.com Randy Howry State Bar No. 10121690 rhowry@howrybreen.com James Hatchitt State Bar No. 24072478 jhatchitt@howrybreen.com HOWRY, BREEN & HERMAN, L.L.P. 1900 Pearl Street i Austin, TX 78705 (512) 474-7300 (512) 474-8557 (Fax)

Trial Court: Hon. Amy Clark Meachum Judge, 201st District Court Travis County Civil Courthouse 1000 Guadalupe, 5th Floor Austin, TX 78701 (512) 854-9305

ii TABLE OF CONTENTS

PAGE

IDENTITY OF PARTIES AND COUNSEL ...........................................................................i

TABLE OF CONTENTS ................................................................................................ iii

INDEX OF AUTHORITIES............................................................................................... v

STATEMENT REGARDING ORAL ARGUMENT ..............................................................ix

STATEMENT OF JURISDICTION ..................................................................................... x

ISSUE PRESENTED.......................................................................................................xi

STATEMENT OF FACTS AND PROCEDURAL HISTORY.................................................... 1

SUMMARY OF ARGUMENT ........................................................................................... 3

STANDARD OF REVIEW ................................................................................................ 4

ARGUMENT ................................................................................................................. 5

I. THE FORUM-SELECTION CLAUSE IS NARROWLY DRAFTED .............................. 5

II. NEITHER OF COACH WICKLINE’S CLAIMS FALL WITHIN THE NARROW SCOPE OF THE FORUM-SELECTION CLAUSE ....................................... 9

A. Coach Wickline’s Tortious Interference Claim is not an “Action to Enforce” the OSU Contract ................................................. 9

B. Coach Wickline’s Declaratory Judgment Action is not an “Action to Enforce” the OSU Contract ............................................... 14

CONCLUSION & PRAYER ........................................................................................... 18

CERTIFICATE OF SERVICE .......................................................................................... 20

CERTIFICATE OF COMPLIANCE .................................................................................. 21

iii APPENDIX

Final Order of Dismissal and Judgment (CR 195–96) ............................ Tab A

OSU Contract (CR 23–36) ...................................................................... Tab B

Defendants’ Brief in Support of Motion to Dismiss (CR 75–101).......... Tab C

December 18, 2014 Hearing Transcript (RR 1–35) ................................ Tab D

Plaintiff’s First Amended Original Petition (CR 187–94)....................... Tab E

iv INDEX OF AUTHORITIES

CASES Page(s)

360 Mortg. Grp., LLC v. Stonegate Mortg. Corp., No. A-13-CA-942-SS, 2014 WL 2092496 (W.D. Tex. May 19, 2014) .................7

City of Gadsden v. Boman, 143 So.3d 695 (Ala. 2013) .....................................................................................8

Corcovado Music Corp. v. Hollis Music, Inc., 981 F.2d 679 (2d Cir. 1993) .................................................................................12

Daniels v. Dataworkforce LP, No. 14-cv-00822-KMT, 2014 WL 6657794 (D. Colo. Nov. 24, 2014) .................7

Davis v. Lewis, 487 S.W.2d 411 (Tex. Civ. App.—Amarillo 1972, no writ) ...............................11

Dixon v. TSE Int’l Inc., 330 F.3d 396 (5th Cir. 2003) ................................................................................12

Excentus Corp. v. Giant Eagle, Inc., No. 3:11-CV-3331-B, 2012 WL 2525594 (N.D. Tex. July 2, 2012) ............... 7, 12

Hardware Dealers Mut. Ins. Co. v. Berglund, 393 S.W.2d 309 (Tex. 1965) ................................................................................18

In re AIU Ins. Co., 148 S.W.3d 109 (Tex. 2004) ......................................................................... 17, 18

In re Counsel Fin. Servs., L.L.C., No. 13-12-00151-CV, 2013 WL 3895317 (Tex. App.—Corpus Christi July 25, 2013, orig. proceeding) ........................ 6, 12

In re Harris Corp., No. 03-13-00192-CV, 2013 WL 2631700 (Tex. App.—Austin June 4, 2013, no pet.) (mem. op.) ......................................4, 5

v In re Int’l Profit Assocs., Inc., 274 S.W.3d 672 (Tex. 2009).................................................................................10

In re Tyco Elecs. Power Sys., No. 05-04-018008-CV, 2005 WL 237232 (Tex. App.—Dallas Feb. 2, 2005, orig. proceeding) ...........................................17

J.E.M. v. Fid. & Cas. Co. of N.Y., 928 S.W.2d 668 (Tex. App.—Houston [1st Dist.] 1996, no writ) ................ 14, 15

Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001)................................................................................... ix

Malik v. Hood, No. 11-81090-CIV, 2012 WL 1906306 (S.D. Fla. May 25, 2012)......................16

Okla. Oncology & Hematology P.C. v. US Oncology, Inc., 160 P.3d 936 (Okla. 2007) ...................................................................................16

One Call Sys., Inc. v. Hous. Lighting & Power, 936 S.W.2d 673 (Tex. App.—Houston [14th Dist.] 1996, writ denied)..............16

Perry v. Nat’l City Mortg., Inc., No. 05-cv-891-DRH, 2006 WL 2375015 (S.D. Ill. Aug. 15, 2006) ......................7

Peterson Grp., Inc. v. PLTQ Lotus Grp., L.P., 417 S.W.3d 46 (Tex. App.—Houston [14th Dist.] 2013, pet. denied) ................17

Phillips v. Audio Active Ltd., 494 F.3d 378 (2d Cir. 2007) .................................................................................12

Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74 (Tex. 2000).............................................................................. 10, 13

Remedial Fin. Corp. v. Indem. Ins. Co. of N. Am., 36 P.2d 858 (Okla. 1934) .....................................................................................16

Sacra v. Hudson, 59 Tex. 207 (1883) ...............................................................................................15

vi Sw. Bell Tel. Co. v. DeLanney, 809 S.W.2d 493 (Tex. 1991) ................................................................................10

Sw. Intelecom, Inc. v. Hotel Networks Corp., 997 S.W.2d 322 (Tex. App.—Austin 1999, pet. denied) .......................................9

Tenneco Inc. v. Enterprise Products Co., 925 S.W.2d 640 (Tex. 1996)...................................................................................9

Vankineni v. Santa Rosa Beach Development Corp. II, 57 So.3d 760 (Ala. 2010) .......................................................................................8

Yates v. Fleetwood Transp. Servs., Inc., No. 07-0960, 2007 WL 3146369 (W.D. La. Oct. 26, 2007) ..................................8

Young v. Valt.X Holdings, Inc., 336 S.W.3d 258 (Tex. App.—Austin 2010, pet. dism’d) ...................................4, 5

vii STATEMENT OF THE CASE

Nature of the Case Plaintiff Gregory Joe Wickline left his job as Offensive Line Coach at Oklahoma State University for a job as Offensive Coordinator at The University of Texas. Oklahoma State University and its Athletic Director, James Michael Holder, subsequently accused Coach Wickline and The University of Texas of conspiring to avoid Coach Wickline’s contractual obligations to Oklahoma State University.

Coach Wickline sued for tortious interference with his employment contract with The University of Texas, and for a declaratory judgment construing a single, disputed term of his contract with Oklahoma State University. Defendants moved to dismiss both claims based on a forum-selection clause in Coach Wickline’s prior employment agreement with Oklahoma State University.

Trial court Hon. Amy Clark Meachum, 201st District Court of Travis County, Texas.

Disposition below The trial court granted defendants’ motions to dismiss based on the forum-selection clause.

viii STATEMENT REGARDING ORAL ARGUMENT

Coach Wickline does not believe oral argument is necessary in this case. The

legal issues presented are relatively simple and will be adequately addressed by the

parties’ briefs.

ix STATEMENT OF JURISDICTION

This appeal is from an order granting the defendants’ motions to dismiss

based on a forum-selection clause. The “Final Order of Dismissal and Judgment”

expressly states it is “final and effectively resolves all issues pending before this

Court, and is therefore appealable.” See Tab A at CR 195; Lehmann v. Har-Con

Corp., 39 S.W.3d 191, 192–93 (Tex. 2001) (“[A] judgment issued without a

conventional trial is final for purposes of appeal if . . . it states with unmistakable

clarity that it is a final judgment as to all claims and all parties.”). Therefore, this

Court has jurisdiction to entertain this appeal.

x ISSUE PRESENTED

Coach Wickline’s prior employment agreement with Oklahoma State

University contains a forum-selection clause, which states that “[a]ny action to

enforce any of the provisions” of that contract “shall be filed” in Oklahoma. Coach

Wickline sued the defendants in Texas for tortious interference with a different

contract, and sought a declaratory judgment construing a disputed term in the

parties’ agreement. The defendants filed motions to dismiss based on the forum-

selection clause.

Did the trial court err in granting the motions to dismiss?

xi STATEMENT OF FACTS AND PROCEDURAL HISTORY

Plaintiff Gregory Joe Wickline is among the finest football coaches in the

country. See Tab E [Pl.’s 1st Am. Orig. Pet.] at CR 190. From 2005 through 2013,

Coach Wickline was employed by Oklahoma State University as the Cowboys’

Offensive Line Coach. See Tab E at CR189. The most recent terms of Coach

Wickline’s employment were set forth in a 2009 employment contract and its two

amendments (the “OSU Contract”). See Tab B [OSU Contract] at CR 23–36.

Contained in that contract is the forum-selection clause at the heart of this appeal:

“Any action to enforce any of the provisions of this Agreement shall be filed in the

Payne County [Oklahoma] District Court.” See Tab B at CR 31.

Because OSU knew that Coach Wickline’s valuable talents were in high

demand, OSU discouraged Coach Wickline from voluntarily terminating his

contract by including a liquidated damages provision. See Tab E at CR 189–90. As

of January 2012, Coach Wickline would have owed OSU approximately $800,000

if he quit his job. See Tab B at CR 30, 36. But Coach Wickline did have a way out:

a safe harbor provision allowed Coach Wickline to walk away free and clear if he

accepted a job as “an Offensive Coordinator (with play calling duties) at a[n]

NCAA Division I-A institution.” See Tab B at CR 34.

In 2014, Coach Wickline exercised his contractual rights and voluntarily

terminated his employment with OSU, accepting a promotion to the role of

1 Offensive Coordinator (with play calling duties) at The University of Texas, an

NCAA Division I-A institution and a Big 12 Conference rival. See Tab E at CR

189. Despite knowing that Coach Wickline’s departure complied with the letter and

spirit of the OSU Contract, OSU and its Athletic Director, Mike Holder, began a

campaign of harassment to bully Coach Wickline—or his new employer—into

paying nearly $600,000 in liquidated damages. See Tab E at CR 190. As part of this

campaign, OSU sent letters to Coach Wickline’s UT office accusing him of

conspiring with UT to avoid his contractual obligations by contriving a false and

misleading job title and lying about his job responsibilities. See Tab E at CR 190.

Coach Wickline didn’t pay, and neither did UT. Instead, Coach Wickline

sued OSU and Holder in Travis County District Court.1 The petition alleged two

causes of action: (1) a claim for tortious interference with Coach Wickline’s new

employment contract with UT; and (2) a declaratory judgment action asking the

court to construe the phrase “Offensive Coordinator (with play calling duties)” in

the OSU Contract. See Tab E at CR 189–92.

Defendants responded by filing, among other pleadings, a motion to dismiss

based on the OSU Contract’s forum-selection clause. After a round of briefing and

a hearing, the trial court issued a letter stating that the motion was granted. The

court subsequently entered final judgment, and this appeal followed.

1 OSU also sued Coach Wickline for breach of contract in Stillwater, Payne County, Oklahoma, where OSU is located. That lawsuit remains pending.

2 SUMMARY OF ARGUMENT

The trial court erred by granting the defendants’ motions to dismiss based on

the forum-selection clause in the OSU Contract. That clause does not apply to

Coach Wickline’s claim for tortious interference with contract, nor does it apply to

Coach Wickline’s declaratory judgment action. The dispositive legal question on

appeal—the scope of the forum-selection clause—is plainly answered by the

simple text of the parties’ agreement.

The scope of the forum-selection clause in the OSU Contract is narrow,

applying only to “action[s] to enforce” the OSU Contract. That limiting contractual

language distinguishes the clause at issue in this case from the most common forms

of forum-selection clauses, which often employ language covering disputes

“arising out of” or “relating to” a contract. Presumably relying on the numerous

cases the defendants cited involving those broad “arising under” style forum-

selection clauses, the trial court impermissibly rewrote the OSU Contract and

expanded the scope of its forum-selection clause.

Had the trial court applied the forum-selection clause as it is written, it

would have properly concluded that neither of Coach Wickline’s claims in this case

fall within the scope of the clause. First, Coach Wickline’s tortious interference

claim is a tort claim—not a contract claim—involving a different contract. The

defendants’ pleading of an affirmative defense of justification, based on their extra-

3 textual reading of the OSU Contract’s other provisions, does not transform a tort

action into a suit to enforce a contract. The scope of the forum-selection clause

here is far narrower than every example touted by the defendants in support of

their argument to the contrary. Second, Coach Wickline’s declaratory judgment

action seeks only construction, not enforcement, of the OSU Contract. Both courts

and contracts regularly distinguish between the act of contract interpretation and

the act of contract enforcement. Because Coach Wickline did not seek enforcement

of the OSU Contract by way of his declaratory judgment action, dismissal was

improper.

STANDARD OF REVIEW

In general, this court’s review of a motion to dismiss based on a forum-

selection clause employs an abuse-of-discretion standard. Young v. Valt.X Holdings,

Inc., 336 S.W.3d 258, 261 (Tex. App.—Austin 2010, pet. dism’d). But the trial

court’s contractual interpretation of the forum-selection clause, a legal matter, is

reviewed de novo. Id.

Analysis of a forum-selection clause is a two-step process. In re Harris

Corp., No. 03-13-00192-CV, 2013 WL 2631700, at *2 (Tex. App.—Austin June 4,

2013, no pet.) (mem. op.) (citing Young, 336 S.W.3d at 262). First, the party

seeking to enforce the forum-selection clause has the burden to establish that the

clause applies to the opposing party’s claims. Id. If that showing is made, the

4 burden shifts to the party resisting enforcement of the clause to show that

enforcement would be improper. Id. The only dispute in this case is whether the

forum-selection clause in the OSU Contract applies to Coach Wickline’s claims.2

To determine the scope of a forum-selection clause, the court should apply

ordinary principles of contract interpretation, with the “primary objective” being

“to ascertain and give effect to the intentions the parties have objectively

manifested in the written instrument.” Young, 336 S.W.3d at 262. “Contract terms

are given their plain, ordinary, and generally accepted meanings, and contracts are

to be construed as a whole in an effort to harmonize and give effect to all

provisions of the contract.” Id. at 263.

ARGUMENT

I. THE FORUM-SELECTION CLAUSE IS NARROWLY DRAFTED

The OSU Contract contains a simple and plain forum-selection clause,

which reads:

“Any action to enforce any of the provisions of this Agreement shall be filed in the Payne County District Court.”

See Tab B at CR 31. The language of that clause is specific and narrow. The clause

applies only to actions “to enforce” the provisions of the OSU Contract. Forum-

2 The parties agree that Texas’s forum-selection-law principles apply in this case, despite the presence of an Oklahoma choice-of-law clause in the OSU Contract. See In re Lisa Laser USA, Inc., 310 S.W.3d 880, 883 n.2 (Tex. 2010) (“This Court has applied Texas law in the mandamus cases in which the parties seek to enforce a forum-selection clause, even if the contract also contains a choice-of-law clause selecting the application of another’s state’s substantive law.”).

5 selection clauses are often drafted more broadly, applying, for example, to disputes

“arising out of” or “related to” a contract. OSU could have drafted its forum-

selection clause more broadly, but it chose not to. That choice has consequences.

The trial court erred by rewriting the parties’ agreement and broadening the scope

of the forum-selection clause to match the scope of wholly dissimilar clauses.

In the trial court, the defendants advanced the position that the phrase “[a]ny

action to enforce any of the provisions of this Agreement” is equivalent to the

phrase “any dispute arising under or involving this Agreement.” See Tab D

[Hearing Transcript] at RR 8:9–13 (“[The OSU Contract] also, Your Honor, had a

mandatory forum selection clause that set the District Court of Payne County,

Oklahoma, as the situs for disputes arising under the contract or involving the

contract.”) (emphasis added). Arguing from that false premise, the defendants cited

several cases involving “arising under” style forum-selection clauses to persuade

the court that Coach Wickline’s claims fell within the scope of the OSU Contract’s

forum-selection clause. E.g., In re Counsel Fin. Servs., L.L.C., No. 13-12-00151-

CV, 2013 WL 3895317, at *1 (Tex. App.—Corpus Christi July 25, 2013, orig.

proceeding) (“any claims and disputes . . . pertaining to . . . any matter arising out

of or related to” the contract; “each action . . . arising out of or otherwise relating

to” the contract); Excentus Corp. v. Giant Eagle, Inc., No. 3:11-CV-3331-B, 2012

6 WL 2525594, at *2 (N.D. Tex. July 2, 2012) (“any action arising out of this

agreement”).

But not all forum-selection clauses are created equal. The universe of

potential “action[s] to enforce” a contract is plainly smaller than the universe of

potential actions “arising under” or “related to” that contract. For example, a suit

for unpaid overtime wages under the Fair Labor Standards Act unquestionably

“relates to” a worker’s employment contract, but an FLSA action is not a suit “to

enforce” that contract. See, e.g., Daniels v. Dataworkforce LP, No. 14-cv-00822-

KMT, 2014 WL 6657794, at *2 (D. Colo. Nov. 24, 2014) (FLSA claim not within

scope of clause covering any action “to interpret or enforce any provision of” the

contract); Perry v. Nat’l City Mortg., Inc., No. 05-cv-891-DRH, 2006 WL

2375015, at *4–5 (S.D. Ill. Aug. 15, 2006) (same for clause limited to suits

involving the terms of the contract itself); see also 360 Mortg. Grp., LLC v.

Stonegate Mortg. Corp., No. A-13-CA-942-SS, 2014 WL 2092496, at *6 (W.D.

Tex. May 19, 2014) (employer’s suit alleging former employee conspired to steal

trade secrets not covered by clause in employment agreement applying to “[a]ny

action to enforce, challenge or construe the terms or making of this Agreement or

to recover for its breach”).

Although there are no Texas cases squarely on point, courts outside of Texas

have properly construed “enforcement” style forum-selection clauses more

7 narrowly than “arising under” or “related to” style clauses. See Vankineni v. Santa

Rosa Beach Development Corp. II, 57 So.3d 760, 763 (Ala. 2010).3 In Vankineni,

the plaintiff signed a contract to purchase a condominium unit, and the purchase

contract contained a forum-selection clause requiring “[a]ny action to enforce a

provision of” the purchase contract to be brought in Florida. Id. at 761. The

plaintiff later sued the seller in Alabama to recover the amount he had paid and to

have the purchase contract declared invalid and unenforceable. Id. at 762. The

Alabama Supreme Court held the plaintiff’s claims were not covered by the forum-

selection clause because the plaintiff was not “seeking to enforce any provision of

the purchase contract.” Id. at 763. To hold to the contrary, the court reasoned,

would be “to rewrite the forum-selection clause, under the guise of construing it, to

extend its scope to actions arising under or relating to the purchase contract.” Id.;

see also Yates v. Fleetwood Transp. Servs., Inc., No. 07-0960, 2007 WL 3146369,

at *4 (W.D. La. Oct. 26, 2007) (suit alleging wrongful denial of benefits under

employer-sponsored occupational injury plan was not an “action ‘to enforce’” a

lease agreement conditioned upon plan subscription).

3 Alabama’s principles of contract interpretation generally mirror those of Texas. See Vankineni, 57 So.3d at 762 (unambiguous contracts must be enforced as written); City of Gadsden v. Boman, 143 So.3d 695, 704 (Ala. 2013) (outlining general principles of contract interpretation). Coach Wickline was unable to locate a decision of any Texas court, state or federal, construing the scope of an “enforcement” style forum-selection clause like the one at issue in this case.

8 The logic of decisions like Vankineni and Daniels is sound. A forum-

selection clause directed at actions “to enforce” the contract is narrowly tailored to

encompass breach-of-contract actions, not unrelated tort claims or requests for

declaratory relief. By equating the language in the OSU Contract with much

broader “arising under” type clauses, the trial court failed to “give effect to the

written expression of the parties’ intent.” Sw. Intelecom, Inc. v. Hotel Networks

Corp., 997 S.W.2d 322, 324 (Tex. App.—Austin 1999, pet. denied); see also

Tenneco Inc. v. Enterprise Products Co., 925 S.W.2d 640, 646 (Tex. 1996) (“We

have long held that courts will not rewrite agreements to insert provisions parties

could have included or to imply restraints for which they have not bargained.”).

II. NEITHER OF COACH WICKLINE’S CLAIMS FALL WITHIN THE NARROW SCOPE OF THE FORUM-SELECTION CLAUSE

Coach Wickline brought two claims against the defendants. First, he sued for

tortious interference with his current employment contract with UT. Second, he

sued for a declaratory judgment construing the phrase “Offensive Coordinator

(with play calling duties)” in the OSU Contract. Neither claim seeks “to enforce”

the OSU Contract.

A. Coach Wickline’s Tortious Interference Claim is not an “Action to Enforce” the OSU Contract

By alleging that the defendants tortiously interfered with his employment

contract with UT, Coach Wickline is certainly not seeking “to enforce” the OSU

9 Contract. The elements of a tortious interference claim are: “(1) an existing

contract subject to interference, (2) a willful and intentional act of interference with

the contract, (3) that proximately caused the plaintiff’s injury, and (4) caused actual

damages or loss.” Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d

74, 77 (Tex. 2000). None of those elements require Coach Wickline to “enforce”

his contract with OSU. Further, a final judgment in Coach Wickline’s favor would

not “enforce” the OSU Contract, but instead would compensate Coach Wickline

for the defendants’ unlawful interference with a different contract.

Coach Wickline’s position is consistent with Texas Supreme Court precedent

calling for courts to conduct “common-sense examination[s] of the claims and the

forum-selection clause to determine if the clause covers the claims.” In re Int’l

Profit Assocs., Inc., 274 S.W.3d 672, 677 (Tex. 2009). “[A] claim is brought in

contract if liability arises from the contract, while a claim is brought in tort if

liability is derived from other general obligations imposed by law.” Id. Put

somewhat differently, “[i]f the defendant’s conduct . . . would give rise to liability

independent of the fact that a contract exists between the parties, the plaintiff’s

claims may also sound in tort.” Sw. Bell Tel. Co. v. DeLanney, 809 S.W.2d 493,

494 (Tex. 1991). In this case, the defendants’ liability does not arise from the OSU

Contract, which is why Coach Wickline is not suing them for breaching that

contract. Instead, their liability arises from the “general duty not to interfere with

10 another’s business relations.” Davis v. Lewis, 487 S.W.2d 411, 414 (Tex. Civ.

App.—Amarillo 1972, no writ). The defendants would be liable for their tortious

interference even if the OSU Contract did not exist. Because Coach Wickline’s

tortious interference claim sounds in tort, not in contract, it is not an “action to

enforce” the OSU Contract.

Recognizing that the elements of Coach Wickline’s tort claim have nothing

to do with the OSU Contract, the defendants argued to the trial court that Coach

Wickline is nevertheless bringing an “action to enforce” the OSU Contract because

their affirmative defense of justification requires reference to the OSU Contract.

That argument unpersuasively conflates Coach Wickline’s claim—the “action”—

with the defendants’ affirmative defense. The nature of Coach Wickline’s tort

action is not controlled by the defenses the defendants choose to assert.

The defendants’ argument to the trial court that the need to reference the

OSU Contract to resolve the tortious interference claim transforms this case into an

“action to enforce” the OSU Contract is fundamentally flawed in a second way. In

advancing that argument, the defendants again relied on distinguishable cases

interpreting “arising under” style forum-selection clauses with far broader scopes

than the “enforcement” style clause in the OSU Contract.

In Counsel Financial Services, for example, the district court noted that the

forum-selection clauses were “broad and encompasse[d] all claims, including those

11 that may only relate to the agreement.” 2013 WL 3895317, at *5 (emphasis

added). Because all of the plaintiff’s claims, both affirmative and defensive, related

to the parties’ various loan agreements, the court found the forum-selection clauses

in those agreements applied. Id. The story in Excentus Corp. is similar: the plaintiff

sued its contractual partner for patent infringement and sought a declaration that

the parties’ contract did not grant the defendant a license to practice the patented

inventions. 2012 WL 2525594, at *1. The court held those claims “arose out of”

the parties’ contract because interpretation of the contract was essential to

resolving them. Id. at *4.

Coach Wickline has no quarrel with the holdings of cases like Counsel

Financial Services and Excentus Corp.4 But the logic of those cases is inextricably

bound to broad contractual language not present in the OSU Contract. In the

defendants’ view, any claim that requires reference to a contract must implicate

that contract’s forum-selection clause, regardless of the actual language of the

clause itself. That rule would ignore one of the most fundamental principles of

contract interpretation: words matter. See Dixon v. TSE Int’l Inc., 330 F.3d 396, 398

(5th Cir. 2003) (holding forum-selection clause mandating suit be brought in “The

4 The Second Circuit has repeatedly rejected the reasoning employed in similar cases. See Phillips v. Audio Active Ltd., 494 F.3d 378, 391 (2d Cir. 2007) (“Because the recording contract is only relevant as a defense in this suit, we cannot say that Phillips’ copyright claims originate from, and therefore ‘arise out of,’ the contract.”); see also Corcovado Music Corp. v. Hollis Music, Inc., 981 F.2d 679, 682–83 (2d Cir. 1993) (explaining that if a contract “is at most a defense” to a non-contractual claim, the forum-selection clause in the contract does not apply).

12 Courts of Texas” operated as waiver of right to removal because federal courts may

be in Texas, but they are not of Texas).

Alternatively, even if the assertion of a contract right as a defense to a claim

were relevant to the forum-selection-clause analysis, the mere pleading of a

justification defense did not entitle the defendants to dismissal. It is true that an

affirmative defense of justification can defeat a tortious interference claim on the

merits, and such a defense may be rooted in a contractual right to interfere.

Prudential Ins. Co., 29 S.W.3d at 80. But the Texas Supreme Court also held in

Prudential that a party “may not exercise an otherwise legitimate privilege by

resort to illegal or tortious means.” Id. at 81. “Thus, if the plaintiff pleads and

proves methods of interference that are tortious in themselves, then the issue of

privilege or justification never arises.” Id. (emphasis added).

Coach Wickline has alleged the defendants tortiously interfered with his

current employment contract with UT by falsely accusing him of, in essence,

conspiring to defraud the State of Oklahoma (through the board of regents of one

of its universities) to the tune of nearly $600,000. If Coach Wickline ultimately

proves those allegations, the defendants’ conduct is not justified as a matter of law

and the OSU Contract is irrelevant. See id. at 82–83 (holding Prudential had failed

to establish its justification defense as a matter of law because its contract rights

13 did not “entitle Prudential to falsely accuse FRS of fraud, knowing its charges are

baseless”).

B. Coach Wickline’s Declaratory Judgment Action is not an “Action to Enforce” the OSU Contract

Coach Wickline’s declaratory judgment action asked the court to construe

the disputed phrase “Offensive Coordinator (with play calling duties)” in the OSU

Contract. The parties have a real controversy regarding the meaning of that phrase

because the defendants are dissatisfied with the contract they drafted, and have

attempted to enforce an interpretation of that clause with no support, textual or

otherwise. As the defendants told the district court, the defendants believe that

phrase means something other than what it plainly says. See Tab C [Defendants’

Brief] at CR 84 (suggesting the safe harbor requires Coach Wickline to have

“exclusive play-calling duties” (emphasis added)). Coach Wickline is entitled to a

declaratory judgment construing this disputed term. “An interested party under a

written contract whose rights and legal relations are at issue may ask the court to

resolve questions of construction or validity arising under the contract.” J.E.M. v.

Fid. & Cas. Co. of N.Y., 928 S.W.2d 668, 671 (Tex. App.—Houston [1st Dist.]

1996, no writ) (emphasis added) (citing TEX. CIV. PRAC. & REM. CODE

§ 37.004(a)).

A declaratory judgment action seeking an interpretation of one contract term

is not an action “to enforce” that contract. Contract construction and enforcement

14 are two fundamentally different procedures. The former calls upon the court to

pronounce the meaning of a disputed term, thereby resolving the parties’

interpretive dispute. One of the primary purposes of the declaratory judgment

action is to allow parties to resolve such disputes and clarify their rights and

obligations “even before any wrong has actually been committed,” and thus before

any enforcement action is ripe for adjudication. Id. By contrast, an enforcement

action harnesses the machinery of the courts to compel some party to act. A

contract enforcement action in the context of this case already exists: OSU’s

pending lawsuit in Oklahoma alleges Coach Wickline breached the OSU Contract,

and OSU seeks as a remedy a money judgment compelling Coach Wickline to pay

nearly $600,000 in liquidated damages. Coach Wickline’s declaratory action in this

case does not ask the court to compel any party to do anything. A favorable

judgment in Coach Wickline’s favor will not compel OSU to pay damages, or

dismiss its Oklahoma lawsuit, or stop harassing Coach Wickline. It will merely

give the parties a definitive construction of a term of their contract. Once that

construction has been given, any enforcement that is needed will come through

some other legal action.

Texas courts have recognized the existence of these dual duties of

construction and enforcement for well over a century. See, e.g., Sacra v. Hudson,

59 Tex. 207, 208 (1883) (“It is the duty of courts to construe and enforce

15 contracts.” (emphasis added)). Oklahoma law is identical.5 See Okla. Oncology &

Hematology P.C. v. US Oncology, Inc., 160 P.3d 936, 948 (Okla. 2007) (contract

clause “contemplated that either party may file a legal action to enforce or

interpret” the contract (emphasis added)); see also Remedial Fin. Corp. v. Indem.

Ins. Co. of N. Am., 36 P.2d 858, 859 (Okla. 1934) (court’s obligation is to “simply

construe and enforce the contracts as made”). If construction and enforcement

were synonymous, it would be unnecessary for the courts to explain their role as

encompassing both tasks.

This enforcement/construction distinction is often put to use in modern

contracts. A well-drafted forum-selection clause may apply, for example, to “[a]ny

action to enforce or construe” the contract. Malik v. Hood, No. 11-81090-CIV,

2012 WL 1906306, at *2 (S.D. Fla. May 25, 2012) (emphasis added) (interpreting

Texas-law contract selecting the courts of Dallas County). The Malik court held the

plaintiff’s claims there were within the scope of that “enforce or construe” forum-

selection clause precisely because resolution of the claims required the court to

construe the contract. Id. Similarly, contractual attorney’s fees provisions often

apply to actions “brought by either party to enforce or interpret any of the terms”

of the contract. One Call Sys., Inc. v. Hous. Lighting & Power, 936 S.W.2d 673,

675 (Tex. App.—Houston [14th Dist.] 1996, writ denied) (emphasis added); see

5 Because the OSU Contract contains an Oklahoma choice-of-law clause, a Texas court will construe it in accordance with Oklahoma law.

16 also Peterson Grp., Inc. v. PLTQ Lotus Grp., L.P., 417 S.W.3d 46, 60 (Tex.

App.—Houston [14th Dist.] 2013, pet. denied) (contractual attorney’s fees

provision triggered by any action “to enforce or interpret any term, provision or

condition” of the contract).

In an effort to avoid the most textually faithful reading of the forum-

selection clause in this case, the defendants told the trial court that “Texas courts

regularly conclude a request for declaratory relief concerning all or part of a

contract falls within a forum-selection clause contained within that contract.” See

Tab C [Defendants’ Brief] at CR 89. While that statement has elements of truth, its

breadth and vagueness hide critical factual distinctions. First, neither case cited by

the defendants in support of that proposition even addressed the issue of the scope

of a forum-selection clause; both were about enforceability, the second step of the

two-step analysis. See In re AIU Ins. Co., 148 S.W.3d 109, 111–15 (Tex. 2004); In

re Tyco Elecs. Power Sys., No. 05-04-018008-CV, 2005 WL 237232, at *1 (Tex.

App.—Dallas Feb. 2, 2005, orig. proceeding). Second, even if those cases had

addressed the scope issue, their holdings would be irrelevant: neither case involved

an “enforcement” style forum-selection clause. In Tyco Electronics, the clause was

a typical “any dispute involving or arising under” clause, which obviously

encompassed a declaratory judgment action regarding the enforceability of a

provision of the contract. 2005 WL 237232, at *1. And AIU is even less helpful for

17 the defendants, as the clause in that case specifically applied to disputes regarding

“the meaning, interpretation or operation of any term” of the contract, thereby

capturing a declaratory judgment action concerning the scope of the contract. 148

S.W.3d at 110.

OSU could have drafted the forum-selection clause in its contract with

Coach Wickline in the style of the clause at issue in AIU, applying to disputes

regarding “the meaning, interpretation or operation of any term” in the contract. It

did not. Instead, OSU drafted a clause limited to “action[s] to enforce” the

contract. If OSU is now unhappy with its drafting choices, its remedy lies in the

standard practice of amending the contract. Unilaterally reinterpreting the contract,

or asking a court to rewrite its provisions by judicial fiat to be more expansive and

beneficial, will not work. Hardware Dealers Mut. Ins. Co. v. Berglund, 393

S.W.2d 309, 314 (Tex. 1965) (“[I]t is our duty to construe and enforce contracts

and not to make them.”).

CONCLUSION & PRAYER

For the foregoing reasons, Coach Wickline respectfully asks that the Court

reverse the trial court’s order granting the defendants’ motions to dismiss, and

remand this case for further proceedings.

18 Respectfully submitted,

BECK REDDEN LLP

By: /s/ David J. Beck David J. Beck State Bar No. 00000070 dbeck@beckredden.com 1221 McKinney Street, Suite 4500 Houston, TX 77010 (713) 951-3700 (713) 951-3720

Karson K. Thompson State Bar No. 24083966 kthompson@beckredden.com Christopher R. Cowan State Bar No. 24084975 ccowan@beckredden.com 515 Congress Avenue, Suite 1750 Austin, TX 78701 (512) 708-1000 (512) 708-1002

ATTORNEYS FOR APPELLANT, GREGORY JOE WICKLINE

19 CERTIFICATE OF SERVICE

I hereby certify that on March 12, 2015, a true and correct copy of the above and foregoing Brief of Appellant was forwarded to all counsel of record by the Electronic Filing Service Provider, if registered, and by email, as follows:

Sean E. Breen HOWRY, BREEN & HERMAN, L.L.P. 1900 Pearl Street Austin, Texas 78705-5408 Email: sbreen@howrybreen.com

Counsel for Appellees

/s/ David J. Beck David J. Beck

20 CERTIFICATE OF COMPLIANCE

1. This brief complies with the type-volume limitation of Tex. R. App. P. 9.4 because it contains 4,392 words, excluding the parts of the brief exempted by Tex. R. App. P. 9.4(i)(2).

2. This brief complies with the typeface requirements of Tex. R. App. P. 9.4(e) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2007 in 14 point Times New Roman font.

Dated: March 12, 2015.

/s/ David J. Beck David J. Beck COUNSEL FOR APPELLANT, GREGORY JOE WICKLINE

21 No. 03-15-00077-CV

IN THE THIRD COURT OF APPEALS AUSTIN, TEXAS

GREGORY JOE WICKLINE, Appellant,

BOARD OF REGENTS FOR THE OKLAHOMA AGRICULTURAL AND MECHANICAL COLLEGES, ACTING FOR AND ON BEHALF OF OKLAHOMA STATE UNIVERSITY; AND JAMES MICHAEL HOLDER, IN HIS INDIVIDUAL CAPACITY AND IN HIS CAPACITY AS VICE PRESIDENT FOR ATHLETIC PROGRAMS AND DIRECTOR OF INTERCOLLEGIATE ATHLETICS FOR OKLAHOMA STATE UNIVERSITY, Appellees.

Appeal from the 98th District Court of Travis County, Texas, Trial Court Case No. D-1-GN-14-004391

APPENDIX TO BRIEF OF APPELLANT

TAB A Final Order of Dismissal and Judgment (CR 195-96)

B OSU Contract (CR 23-36)

C Defendants’ Brief in Support of Motion to Dismiss (CR 75-101)

D December 18, 2014 Hearing Transcript (RR 1-35)

E Plaintiff’s First Amended Original Petition (CR 187-94) TAB A Final Order of Dismissal and Judgment (CR 195-96) DC BK15028 PG516 ·--·----- - - -- - ·· - .. Filed In The District Court of Travis County, Texeis

:~ ;rr~B.'~1S Velvu L Price, District Clerk

Cause No. D-l-GN-14-004391

GREGORY JOE WICKLJNE, 1' s IN THE DISTRICT COURT § Plain.tiff. § § vs. § § BOARD OF REGENTS for the Oklahoma § Agricultural and Mechanical Colleges, § OF TRAVIS COUNTY, TEXAS acting for and on behalf of Oklahoma State § University; and JAMES M ICHAEL § HOLDER, in his individual capacity and in § his capacity as Vice President for Athletic § Programs and Director of Intercollegiate § Ath.letics for Oklahoma State University, § § Defendants. § 98TH JUDICIAL DCSTRlCT

FINAL ORDER OF DISMISSAL AND JUDGMENT

Before this Court are Defendants' motion to enforce a mandatory forum-selection clause

and, in the altemative, motion to stay. After careful consideration of the motion, the response,

the briefs, the reply. and the pleadings and arguments of counsel , this Court finds the

Defendants' Motion to Dismiss b~e

hereby is GRANTED in all things.

All of Plaintiffs claims against Defendants in this lawsuit are hereby DISMISSED

without prejudice to refi ling in the Payne County District Court of Payne County, Oklahoma.

This order is final and effectively resolves all issues pending before this Court, and is therefore

appealable.

SO ORDERED.

'"· ./\ ."? Signed:---'~'----'-~---'~----' 2015.

195 ---- DC BK15028 PGS17

AGREED AS TO FORM:

/ BECK REP.DE) LLP

~11~f. 1;#kr - DaVid B~~ 1-/ . pt;~i'\'\ ~\\ Wt\ Slate Bar No. 00000070 1 dbeck@beckredden.com 1221 McKinney Street, Suite 4500 Houston, Texac; 77010 Tel. (713) 951-3700 rhowry@howrybreen.com Fax (713) 951-3720 James Hatchjtt Slate Bar No. 24072478 Christopher R. Cowan jhatchitt@howrybreen.com State Bar No. 24084975 1900 Pearl Street ccowan@beckredden.com Austin, Texas 78705-5408 Karson K. Thompson Tel. (512) 474-7300 State Bar No. 24083966 Fax (512) 474-8557 kthompson@beckredden.com 515 Congress Avenue, Suite 1750 Attorneys for Defen.dants Board of Regen.Ts for Austin, Texas 78701. the Oklahoma Agricultural and Mechanical Tel. (512) 708-1 000 Colleges, acting for and on behalf of Fax (512) 708-1002 Oklahom.a State University, and James Michael Holder Attorneys for Plaintiff Gregory Joe Wickline

196 TAB B OSU Contract (CR 23-36) i. ,.

EMl?LOYI1ENT CON~RACT

This :Agreement, made by and between OKLAHOMA STATE UNIVERSITY, hereinafter referred to as the "University", and Grego:ry Joe Wickline, hereinafter referred to as "Coach11 ;

WIT.NESSETH:

WHEREAS, University requires the services of an Assistant Coach for the University's Intercollegiate Football Team; and WHEREAS, Gregory Joe Wickline meets the University's quali£ications for the position and has been employed as such.by University pursuant to an Employment Contract and Amendments thereto ail of which the parties intend to cancel and replace by this Agreement; NOW, THEREFORE, in consideration of the mutual covenants and conditions herein contained, the University and the Coach agree as follows: l. Subject to ·the conditions stated in the provisions of this agreement, the University hereby employs Cop,ch as Assistant Coach for the University's Intercollegiate Football Team at Oklahoma State University for a designated period beginninsr with the 1st day of January, 2009 and ending on the fi:rsl: to occur of any of the following: (i) D~cember 31, 2013; (ii) 180 days following the resignation of the Head Football Coach; or {iii} texmination of this Contract as otherwise provided herein. The Coach hereby agrees to and does accept the terms and conditions for said employment for the designated period. Neither this Contract nor Coach• s employment hereunder shall in any way grant the coach a claim to tenure in employment, Ol;" any years of employment attributable to tenure within the University. 2. The compensation paid by the University to the Coach fer serqices and satisfactory performance of the conditions of this Contract shal~ be at the annual ~alary rate of $157,500.00 per annum payable in monthly installments out of legally available funds by the University to the Coach on the last day of each calendar month during the term of this Contract. In addition, Coa~ shall

23 .·

receive from legally available funds bonuses earned, if any, based on the performance incentives attained in the football season of the then current fiscal year in accordance with "Exhibit A entitled "Financial Incentives," attached 0

hereto and made a I?art hereof. It is agreed that the compensation so paid shall be subject to the same payroll deductions (for example, state and federal tax"es, F.I . C. A. withholding, and retirement plans} that apply to University administrative and professional (A&P) employees. The Coach shall be eligible to participate in group insurance and retirement programs and voluntary payroll deduction programs on the same basis, and with the same employer contributions, that apply to university administrative and professional (A&P) employees. 3. The Coach shall devote his full time and attention to such duties and responsibilities as an Assistant Coach as assigned by and serving under the direction of the University's Head Football Coach. The Coach shall conduct such travel as is necessary to carry out his duties and the Coach shall be entitled to reimbursement for transportation ·and per diem expenses at the maximUill rate authorized by law and University regulations. 4. The Coach shall recognize and comply with the policies , rules, and re.g ulations of and governing Oklahoma State University and its employees and the rules of the Big Twelve Conference and the National Collegiate Athletic Association, as now constituted or as any of the same may be amended during the term hereof. Coach shall respond, and shall not counsel or instruct any coach, student, or any other person to fail to respond, accurately and fully within a reasonable time to any reasonable request or inguixy relating to the performance of his duties hereunder or the performance of his duties during his prior employment at any other institution of higher learning propounded by University, NCAA, the Big Twelve Conference or other governing body having supervision ove.r the athletic programs of University or such other institution of higher learning, or required by law, governing athletic rules or University policies and regulations. without limitation upon any right or remedy of the University in the event the Coach breaches this Contract, it is specifically agreed that i f the

24 .·

University finds after due hearing that the Coach is. has been, or was at any time, involved in violations of the ll1CAA legislation applicable to University or to any prior employer of the Coach which was at the time of such employment a member of NCAA, it may take one or more of the following actions that it deems appropriate: (1) termination of employment; (2) suspension, with or without pay, for a period of time as the University shall determine; (3) modification of duties; or (4) reassignment to other employment duties within the University. Coach shall indemnify the University for all costs (includin.g attorney fees) incurred by University in responding to any official inquiry of ~be NCAA resulting in a show cause penalty against the Coach by the Infractions Committee. 5. coach shall conduct himself with due regard to public convention and morals, shall not do any act that will tend to degrade him in society or ?ring him into public hatred, contempt, scorn, or ridicule, or that will tend to shock, or insult the community or offend public morals or decency, and he shall not do any act that tends to impair his capacity to fully comply with his obligat:i.ons hereunder. 6. coach recognizes that university has assigned a high priority to the academic achievement J:>f the students who participate in its athletic programs and that it is the expectation of the President and the Board of Regents that Coach will emphasize the importance of academic achievement to the students who are athletes at the University. Coach shall maintain a cooperative relationship with Academic Services for Student-Athletes in order to as~ure student-athletes are offered every opportunity to achieve academic expectations and success. 7. coach shall comply fully with all NCAA, Conference, and institutional regulations governing outside employment and compensation. Any television, radio, consultant, endorsement, or outside employment agreement or contract of any nature as wel1 as all other activities related to Coach's involvement in Uhi.versity athletics will be under the supervision, direction, and control of the Athletic Director. All such arrangements and activities must first be approved annually in writing by the Athletic Director and shall not conflict with the best interest of the university.

25 ,·

.. Coach must receive annually prior ~Tritten approval from the President for all athletically related income and benefits from sources outside the institution, including but not limited to income from gifts to Coach from don,ors or from friends of the Athletic Department; annuities; sports camps; housing benefits (including prefere~tial arrangements); countzy club melllbershLps; complimentaey ticket sales; television and radio programs; and endorsements or consultation contracts with athletl,cs shoe, apparel, or equipment manufacturers. It is specifically understood that Coach shall not use, directly or by implication, the name of the University or its logos in the endorsement of commercial products or services for personal gain without the prior written approval of the President. 8. The University reserves the right to either te:rminate this Contract, or to suspend the coach for a period of time from pe.r formance of duties with or without pay without termination of this Contract for cause, including but not timited to any of the following : (l) the university has a reasonable basis for believing Coach has been involved in deliberate and significant or repetitive violations of Provision No. 4 of this Agreement, or (2) failure of Coach to comply with any of tbe provisions set forth in Provision Nos. 5 or 11 of this Agreement, or {3) any conduct of Coach in violation of any criminal statute (excluding minor traffic offenses) whether prosecuted or not, or any act of moral turpitude, or (4) violations by Coach of any of the other terms of this Agreement which cannot be or has not been remedied after thirty (30) days written notice thereof t.o Coach, or (5) conduct of Coach determined by the University to be seriously prejudicial to its best interests or the best interests of its athletic program, or (6) material misrepresentation of Coach's educational or other qualifications for employment as Coach hereunder, or (7) fraud or dishonesty of Coach in the performance of his duties or responsibilities under this Agreement, or (8) use or consumption by Coach of alcoholic beverages, drugs, controlled substances, steroids or other chemicals in such degree and for such appreciable period as to impair significantly or materially his ability to perform his duties hereunder or failure by Coach to fully cooperate in the enforcement and

26 .. implementation of any drug testing program established by University for student- athletes, or (9} any cause adequate to sustain the termination or suspension, as the case :may be, of any other University employee. The Head Football Coach or the Director of Intercollegiate Athletics shall have the administrative authority to order suspension of the Coach from duties and salary for causes identified in this Provision No. 8, provided, that notice of any such suspension shall be provided in writing, detailing the reasons for such suspension, and setting forth a reasonable time within which Coach may respond to same. The .coaah shall have the procedural right, upon his written request, for a review and hearing relat~ve to any such suspension. Any ~uch

hearing shall be governed by the normal University grievance procedures provided for administrative and professional (A&P) employees, as now or hereafter amended, unless other procedures are agreed upon by the parties in lieu thereof. Termination of this Contract by the University .may occur only after recommendation of such action by the Head Football Coach and approva1 thereof by the Director of Intercollegiate Athletics. If such adverse action is to be initiated for causes identified in this Provision No . 8, the Head Football Coach shall inform Coach in writing of his preliminary intent to recommend tennination before making any such formal recommendation to the Director of Intercollegiate Athletics. In such case, the Head Football Coach will inform Coach in writing of specific concerns and provide Coach a meaningful opportunity to address the concerns of the Head Football Coach withln a reasonable period of time (in no event less than fifteen (15} days) before proceeding with an adverse recommendation. Any other liearing which may. be permitted shall be governed by

the normal University grievance procedures provided for administrative and professional (A&P) employees, as now or hereafter amended unless other procedures are agreed upon by the parties in lieu thereof. In the event this Contract is terminated by University for cause or causes under this Provision No. 8, University's sole liability to Coach ~hall be limited to payment of salary or installments thereof, which may have been earned and accrued before the end of the month of such termination.

27 9. Not:wi thstanding the term of duration of this Contract as stated in Paragraph One (l} hereof, and subject to the terms of Paragraphs Ten (10) and Eleven ( 11) hereof, either party may terminate this contract without particular calise by giving written notice to the other . party of. the terminating party ' s exercise of this right to terminate. Such termination shall be effective illlmediately upon receipt of such written notice by the other party, unless spec~fied otherwise in said written notice·.

10. In the event University terminates this Contract without cause Uhder Paragraph Nine (9) hereof, then Coach agrees to accept liquidated damages as specified in this Section 10 in complete satisfaction of and payment in full for all obligations, if any, due and owing by University to Coach. As .liqUidated damages, University shall pay Coach a sum equal to the sum of the gross base monthly salary in effect on the date of termination and remaining due under Section 2 of this Contract but for termination of the Contract, payable in equal monthly installments from legally available funds until the date on which the Contract would have expired, plus any _bonuses (i.e . , "Financial Incentives" as set forth in "Exhibit Au) earned as of the date of termination . Coach shall be responsible for all truces thereon. Coach shall be entitled to maintain health insurance coverage, at Coach's sole expense, as provided under law. The parties have bargained for and agreed to this liquidated damages provision and have agreed· that the payment of such liquidated damages shall constitute reasonable and adequate compensation for damages that might ensue as a result of University's termination of this Contract without cause, including any loss by Coach of any collateral business opportunities or any other benefits, perquisites or income from any other sources or agreements. Said liquidated damages shall not be construed as a penalty.

Notwithstanding the foregoing, a condition precedent to the university's obligations to pay the foregoing payments is that Coach diligently seek mitigation of this payment obligation by obtaining full-time e~ployment, business or professional income (for example, but not limited to, football coaching, media commentator, speaking engagements, teaching or other academic activities,

28 .•

consulting or participation in business or any other income producing opportunities). Coach shall begin and shall thereafter continue making very diligent efforts to obtain such income as soon as practicable but not later than thirty {30) days following such termination and each thirty {30) days thereafter shall provide University with a written report of the specific efforts undertaken in this regard including the amount of income, if any, resulting directly or indirectly therefrom. University's financial obligation under this Contract shall cease or be reduced commensurately by the amount of any such income. 11 . The Coach agrees that he will not personally or, directly or indirectly, through any agent or representative, inquire into, seek, negotiate for, or accept other full-time or part-time employment of any nature at any time during the te:rm of this Cont:iract without first having obtained the written permission of the Head Football Coach and the Director of Intercollegiate Athlet~cs, which permission shall not be unreasonably withheld. Tl;le parties hereby agree that Coach has special, exceptional, and unique

knowledge, skill, and ability as a football coach which, in addition to future acquisitions of coaching experience at the University, as well as the University's special need for continuity in its Intercollegiate Football Program, will render the coach's services unique. The Coach recognizes that the loss of Coach's services to the Univers~ty, without University approval and release, prior to the expiration of the term of this Contract or any renewal thereof, would cause an inherent loss to the University which cannot be estimated with certainty, or fairly or adequately compensated by money da:mages. The Coach therefore agrees, and hereby specifically promises, not to accept employment, under any circumstances, as a football coach at any institution of higher education which is a member of the National Collegiate Athletic Association, or for any football team participating in any professional league or conference in the United States or elsewhere, requiring performance of duties prior to the expiration date of the term of this Contract or any extension thereof, without first obtaining a release of this Contract, or a negotiated settlement thereof in writing accepted by _the Coach and the Director of

29 ..

Intercollegiate Athletics and approved by the President of tlie Uni~ersity .

In the event of Coach's termination of this Contract without cause tµlder

Paragraph Nine (9) hereof prior to its expiration date without first obtaining a release therefrom by the University, Coach shall pay to University, as liquidated damages, a sum equal to fifty percent (50%) of the sum of the gross base monthly salary in effect on the date of tennination and remaining due under Section 2 of this Contract but for termination of the Contract, said sum t o become due and payable within thirty (30) days of the effective. date of termination of the Contract, pr ovided, however, University agrees to release coach from his obligations under the Contract upon his request in order to enable him to assume employment as a Head Football Coach at a NCAA Division I-A institution and thereafter no liquidated damages shall be payable by Coach upon his termination of the Contract without cause. The parties have bargained for and agreed to the foregoing liquidated damages provision, giving consideration to the fact that university will incur a~nistrative, recruiting, resettlement, and other costs in obtaining a replacement for Coach, in addition to potentially increased conpensation costs if Coach terminates this Agreement prior to its expiration, which damages are extremely difficult or impracticable to determine with certainty. The payment of said sum shall constitute adequate and :reasonable compensation to the university for the damages and injury suffered because of such termination by Coach. The foregoing shall not be, nor be construed to be, a penalty. 12 . The coach shall be entitled to ann\lal vacation or leave time and sick leave in accordance with University policies governing administrative and professional (A&P) employees; except, however, no ter.minal vacation leave (i.e., accrued but unused annual leave) shall be due to or claimed by Coach upon termination or separation from University employment . 13. The University, as additional compensation to Coach, shall make arrangements for the provision to Coach on a loan basis an automobile for his use. :rt is further agreed that University shall provide and make available to Coach appropriate gasoline credit cards for Coach's use in the performance of his

30 .•

duties with the University pursuant to this Contract, which cards shall be available to Coach throughout the term of this Contract. The University further agrees to provide appropriate liability and comprehensive automobile insurance to cover Coach in the use and operation of said vehicle, during the term of l:his Contract. 14. Any action to enforce any of the provisions of this Agreement shall be filed in the Payne County District Court. No such action may be filed until the party claiming to be aggrieved shall first have delivered to the other a written notice of intention to f i le suit, including an outline of complaints . This notice shall be deliver~d at least 30 days before any suit is filed, and the parties shall use that period to engage in good-faith negotiations aimed at resolving the dispute without litigation. This paragraph is not intended to limit or circumscribe the legal rights of any party thereto, but rather to ensure that the parties exhaust all avenues of seeking a mutually agreeable accommodation of their differences before instituting litigation. In any situation where the terms of this paragraph might affect the legal rights of any party hereto, the parties shall stipulate to appropriate extensions of limitation periods al1d other mqtters to eliminate any such potential effect. 15. :rt is understood and agreed that this Contract shall not be effective until signed by the President of Oklahoma State University, with the recommendation of its Head Football Coach and its Director of Intercollegiate Athletics, and that no amendments, alterations, or interpretations thereof shall be binding upon the University unless so made in writing and so approved by the

President. 16. The relationship between the Coach and the University shall be detennined solely by the tenns and conditions of this Contract and tbi_s Contract supersedes and replaces all previous agreements between the parties and amendments thereto which are hereby cancelled by mutual consent. 17 • This Contract has been entered into under and shall be governed by the laws of the State of Oklahoma and any ~rovision of this Contract prohibited by the laws of said State shall be ineffective to the extent of such prohibition

31 without invalidating the remaining provisions of this Contract. 18. This Contract may be amended by mutual agreement executed in writing and appended hereto. It is contemplated that any adjustments in compensation paid the Coach that may be agreed upon will be accomplished in the same manner and on the same forms as are utilized by the University for other Athletic Departmept and University employees . 1st day of January, 2009 .

OKLAHOMA S'l'ATE UNIVERSITY

.BY: . Mik President for v. Burns Ha:tgis Athletic Programs and Director President of Intercollegiate Athletics

32 Financial Incentives

Overall Performance Incentives

Categorv Base Amount Championship National Championship $20,000.00 Big 12 Championship $10,000.00 Big 12 South Championship $ 5,000.00

Final National Ranking - CNN/USA Today Poll

Top10 $5,000.00 11-15 $3,000.00 16-25 $2,000.00

Post Season Bowl Game Participation*

BCSBowl Up to 2 months .Univ~rslty salary as determined by the Athletic Ofrector

All Others Up to 1 month Unlversitysalaryas determined by the Athletic Director

*Post Season Bowl Incentive payments shall not be earned by or payable to Coach if he voluntarily leaves the employment of the University and/ortermfnates this Contract without cause prior to the official date for signing of the National Letter of Intent for the sport of football followfng the Bowl appearance.

The incentives will be paid according to the highest level achieved in each category. Thus, onty one payment per category is applicable. The decision of the Athletic Director shall be final as to any interpretations or disputes pertaining to these financial incentives. Exhibit A

33 ! • ., • -c-••"'

.. - FIRST AMENDMENT TO EMPLOYMENT CONTRACT

This First Amendment is hereby entered into effective this 1st day of January 2011 to that certain Employment Contract dated January 1; 2009, between Oklahoma State Univers.ity and Gregory Joe Wickline.

IN CONSJDERATION of the performance of the covenants and conditions contained herein and in the said Employment Contract dated January 1, 2009, the parties hereto agree that said Employment Contract is hereby amended in the following respects only:

• The annual salary set forth in Paragraph Two (2} is hereby increased to $200,000.00 beginning Janu~ry 1, 2011; • Paragraph 1 .(ii) is modified to read as follows "one year following the resignation of th? Head Football Co?lch; or"; Jn Section 11 the referenced percentage for calculating liquidated damages payable by Coach to University shall be increased to seventy-five percent {75%}; • That in addition to employment as a Head Football Coach, Coach shall also be released from the obligation to pay liquidated damages upon assumption of employment as an Offensive Coordinator (with play calling duties} at a NCAA Division I-A institution or as an Assistant Coach in the NFL; and • "Exhibit A" entitled "Financial lncentives'r attached to said Contract is hereby deleted and the attached "Amended Exhibit A" is substituted therefor.

It is expressly agreed that this Amendment is supplemental to the original Employment Contract of January 1, 2009, which is made a part hereof by reference, and all terms, conditions, and provisions of said original Contract, unless specifically modified hereby, are m~de a part hereof as though expressly incorporated and included herein.

IN WITNESS WHEREOF, the parties hereto have executed this First Amendment on the date and year first above written.

OKLAHOMA STATE UNIVERSITY

e H der, Vice President for Athletic Programs and Director of Intercollegiate Athletics

34 _, . ·' .. Financial Incentives Assistant Coach {Amended Exhibit A)

Overall Performance Incentives Category Base Amount

Champlonshie Natlonal Championship $20,000.00 Big 12 Championship $10,000.00 Big 12 South Championship $ 5,000.00

Final National Ranking - CNN/USA Today Poa Top 10 $5,000.00 11-15 $3,000.00 16-25 $2,000.00

Post Season Bowl Game Participation

BCS Bowl Up to 2 months total compensation (salary plus talent) as determined by the Athletlc Director

All Others Up to 1 month total compensation (salary plus 'talent) as determined by the Athletrc Director

The incentive payments shall be made in January according to the high_e st level achieved in each category. Thus, only one payment per category is applicable. The decision of the Athletic Director shall be final as fo' any interpretations or disputes pertaining to these financial incentives.

35 " SECOND AMENDMENT TO EMPLOYMENT CONTRACT

This Second Amendment is hereby entered into effective this 1$t day of January, 2012, to that certain Employment Contract dated January 1, 2009, between Oklahoma State University and Gregory Joe Wickline.

IN CONSIDERATION of the performance of the covenants and conditions contained herein and In the said Employment Contract dated January 1, 2009, as subsequently amended by a First Amendment theret.9, the parties hereto agree that said Employment Contract ls hereby amended in the following respects only: . . • The date set forth in Paragraph 1.(i) of said Employment Contract Is changed to December 31, 2016; and

• Subject to the exceptions allowing release In Section 11, the referenced percentage for calculating liquidated damages payable by Coach to University shaJI be one hundred percent (100%) in the event Coach accepts employment by a member instJtution of the Big Twelve Conference.

ft is expressf y agreed tha!J!lis Second Ame12Em.~ is supplemental to the .Q[i9ina: Employment Cont~act o_!i~!!Y 1, _~009, and Firsi: Amendment thereto, which are made a part hereof by reference, and ~II terms, conditions, and provisions of said original Contract, and First Amendment thereto, unless specifically modified hereby, are made a part her~of as though expressly incorporated and included herein.

F, the·parties hereto have executed this Second Amendment on rst above written.

COACH ~~ ~Wickline OKLAHOMA STATE UNIVERSITY

Ider, Vice President for Athletic Programs and Director of Intercollegiate Athletics

36 TAB C Defendants’ Brief in Support of Motion to Dismiss (CR 75-101) 12/17/201410:49:19 AM Amalia Rodriguez-Mendoza District Clerk Travis County D-1-GN-14-004391 Cause No. D-l-GN-14-004391

GREGORY JOE WICKLINE, § IN THE DISTRICT COURT § Plaintiff, § § w. § § BOARD OF REGENTS for the Oklahoma § Agricultural and Mechanical Colleges, § OF TRAVIS COUNTY, TEXAS acting for and on behalf of Oklahoma State § U11iversity; and JAMES MICHAEL § HOLDER, in his individual capacity and in § his capacity as Vice President for Athletic § Programs and Director of Intercollegiate § Athletics for Oklahoma State University, § § Defendants. § 98TH JUDICIAL DISTRICT

DEFENDANTS' BRIEF IN SUPPORT OF THEffi MOTION TO DISMISS BASED ON MANDATORY FORUM-SELECTION CLAUSE OR, IN THE ALTERNATIVE, MOTION TO STAY

Sean E. Breen State Bar No. 00783715 sbreen@howrybrecn.com Randy Howry State Bar No. 10121690 rhowry@howrybreen.com James Hatchitt State Bar No. 24072478 jhatchitt@howrybreen.com 1900 Pearl Street Austin, Texas 78705-5408 Tel. (512) 474-7300 Fax (512) 474-8557

Attorneys for Defendants Board of Regents for the Oklahoma Agricultural and Mechanical Colleges, acting/or and on beha(f of Oklahoma State University, and Jmnes Michael Holder 75 TABLE OF CONTENTS

I. INTRODUCTION .............................................................................................................. 1

II. BACKGROUND .......... ................................................................................ ...................... 2

A. The Contract's liquidated-damages clause and its amendments ............................. 3

B. Mr. Wickline leaves OSU to accept the position of "offensive coordinator" at UT ........................... ... ........................... ......... ........ .............. .......... 5

C. Shawn Watson, not Mr. Wickline, is calling offensive plays for UT' s football tea1n.................................................................................................. 5

D. The Oklahoma lawsuit ....................................................................... ..................... 6

E. Mr. Wickline's belated race to the courthouse ........................................ ....... ........ 7

III. ARGUMENTS AND AUTHORITIES ............................ ................................................... 7

A. T he Contract's mandatory forum-selection clause compels dismissal of Mr. Wickline's claims....................................................................... . 7

1. The Contract's mandatory forum-selection clause applies to claims that "give force or effect to or carry out the clauses of the Contract." ........ ................................................................. ................. 8

2. All of Mr. Wickline's claims fall within the scope of the Contract's mandatory forum-selection clause .......................................... 10

3. Mr. Wickline cannot clearly show the Contrnct's mandatory forum-selection clause should not be enforced ...................... . 15

4. Defendant Mike Holder is entitled to invoke the Contract's mandatory forum-selection clause ....... ................ ....... ........ .................... .. 16

B. Comity requires this Court to defer to the first-filed Oklahoma lawsuit. .... .............................................................................................................. 17

IV. CONCLUSION ........................ .......... ......... ............ ... ............... ..... .. ....... .. ........................ 21

CERTIFICATE OF SERVICE .............................................................................. ........ ...... ......... 23

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76 TABLE OF AUTHORITIES Texas Cases Accelerated Christian Educ., Inc. v. Oracle C01p., 925 S.W.2d 66 (Tex. App.- Dallas 1996, no writ) ............................................................................................................. 8, 12 AIU Ins. Co., 148 S.W.3d 109 (Tex. 2004) ......... ......................................................................... 12 Ashton Grove L.C. v. Jackson Walker L.L.P., 366 S.W.3d 790 (Tex. App.-Dallas 2012, no pet.) ....................................................................... .... ....................... .................... 19, 20 Barnette v. United Research Co., 823 S.W.2d 368 (Tex. App.-Dallas 1991, writ denied) ................................................................. .................................................. .............. ...... 12 Busse v. Pac~fic Cattle Feeding Fund# 1, Ltd. , 896 S.W.2d 807, 812-13 (Tex. App.-Texarkana 1995, writ denied) ................................ ................ .......... ............ ................... 8 Crown Leasing Corp. v. Sims, 92 S.W.3d 924 (Tex. App.-Texarkana 2002, no pet.) ........................................................................................................................................... 18 Fish & Falk, l.L.P. v. Pinkston's Lawnmower & Equip., Inc., 317 S.W.3d 523 (Tex. App.- Dallas 2010, no pet.) ...... ............ .............. .... .... ..................... ............................... 15 Greenwood v. Tillamook Country Smoker, Inc., 857 S. W.2d 654 (Tex. App.- Houston [1st Dist.] 1993, no writ) ...................................................................... ........................ 8 In re ADM Inves. Servs., Inc., 304 S.W.3d 371 (Tex. 2010) ... ..................... ........ ... .............. ... 8, 15 In re BP Oil Supply Co., 317 S.W.3d 915 (Tex. App.-Houston [14th Dist.] 2010, orig. proceeding) .... ......... ..................................................... ............................. ... ............... 20, 21 In re Cornerstone Healthcare Holding Grp., Inc., 348 S.W.3d 538 (fex. App.- Dallas 2011, no pet.) ............................................................................................... .................. 17 In re Counsel Fin. Servs., LLC, No. 13-12-00151-CV, 2013 Tex. App. LEXIS 9255 (Tex. App.-Corpus Christi July 25, 2013, orig. proceeding) ........................................ 13 Jn re Int'! .Profit Assocs., Inc. , 274 S.W.3d 672 (Tex. 2009) .................................................... 9, 12 In re Laibe Corp. , 307 S.W.3d 314 (Tex. 2010) ........................................ .. ............................. 7, 15 In re Lisa Laser US., Inc. , 310 S.W.3d 880 (Tex. 2010) ..... ............ ... ........................................ ... 7 In re State Farm Mut. Auto. Ins. Co. , 192 S.W.3d 897 (Tex. App.-Tyler 2006, orig. proceeding) ................................................................................................................. 18, 19 In re Tyco Elecs. Power Sys., Inc. , No. 05-04-01808-CV, 2005 Tex. App. LEXIS 819 (Tex. App.-Dallas Feb. 2, 2005, orig. proceeding) .... ............................. ... ................... .. 11 MBM Fin. Corp. v. Woodlands Operating Co. , L.P., 292 S.W.3d 660 (Tex. 2009) .................... 12 Phoenix Network Techs. (Europe) Ltd. v. Neon Sys. , Inc. , 177 S.W.3d 605 (Tex. App-Houston [1st Dist.] 2005, no pet.) ............. .... .............. ....................... ........................ 9, 17 Pozero v. Alfa Travel, Inc. , 856 S.W.2d 243, 244 (Tex. App.-San Antonio 1993, no writ) ........................................................................................................................................ 8 Prudential Ins. Co. ofAm. v. Fin. Review Servs., Inc. , 29 S.W.3d 74 (Tex. 2000) ...................... 14

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77 RSR Corp. v. Siegmund, 309 S.W.3d 686 (Tex. App.-Dallas 20 10, no pet.) ......................... 9, 10 Space A·faster Int'!, Inc. v. Porta-Kamp Mfg. Co., 794 S. W.2d 944 (Tex. App.- Houston [I st Dist.] 1990,nowrit) ................... ............................................... .............. 18, 20,21 Sw. Jntelecom, Inc. v. Hotel Networks Corp., 997 S.W.2d 322 (Tex. App.- Austln 1999, pet. denied) ..... ............................................................. ................................. ..................... 9 Young v. Valt.X Holdings, Inc., 336 S.W.3d 258 (Tex. App.-Austin 2010, pet. disin'd) ............................... .......... ...................................................................................... 8, 9, 15

Federal Cases Aerus LLC v. Pro Team, Inc., No. 3:04-CV-1985-M, 2005 U.S. Dist. LEXIS 8559 (N.D. Tex. May 9, 2005) ..................................................... ................. ..................................... 14 Excentus Corp. v. Giant Eagle. lnc., No. 3:1l-CV-3331-B,2012 U.S. Dist. LEXIS 91250 (N.D. Tex. July 2, 2012) .............. ................... .............................. .......... ........... 14

Other Authorities BLACK'S LA w DrcTrONARY (8th ed. 2004) .................................. ................................................. 10 MERRrAM-WEBSTER'S COLLEGIATED1CTIONARY (11th ed. 2003) ............................................... 10

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78 Subject to and without waiver of their special appearances, Defendants Board of Regents

for the Oklahoma Agricultural and Mechanical Colleges, acting for and on behalf of Oklahoma

State University (OSU), and James Michael Holder, in both his individual capacity and his official

capacity as Vice President for Athletic Programs and Director of Intercollegiate Athletics for

Oklahoma State University, file this brief in support of their motion to dismiss based on a

mandatory forum-selection clause or, in the alternative, motion to stay, and in support thereof

would respectfully show as follows:

I. INTRODUCTION

This second-filed, forum-shopped lawsuit does not belong in this Court. OSU and Plaintiff

Gregory Joe Wickline dispute the nature of his current employment as an assistant football coach

for the University of Texas at Austin (UT) and, as a result, Mr. Wickline's obligation to pay

liquidated damages for leaving his previous position as an assistant football coach for OSU without

cause. (The liquidated damages are required under an employment contract Mr. Wickline signed

with OSU on January 1, 2009, and two subsequent amendments (the Contract).1)

After months of attempted resolution with and contract-mandated notice to Mr. Wickline,

OSU filed suit for breach of contract against Mr. Wickline in the District Court of Payne County,

Oklahoma, on October 17, 2014. Three days later, Mr. Wickline filed this lawsuit in this Court,

which should be halted for either or both of the following reasons:

• Mr. Wickline and OSU selected the District Court of Payne County, Oklahoma, as the exclusive venue to enforce the provisions of Mr. Wick.line's employment contract. The substance of Mr. Wickline's claims against OSU and Mr. Holder in this lawsuit implicate the Contract's mandatory forum-selection clause, and his claims necessarily require an interpretation of the Contract. For both of those reasons, all of Mr. WickJine's claims fall within this clause under Texas law.

1 Employment Contract between Gregory Joe Wickline and Oklahoma State University (Jan. I, 2009), attached as Exhibit I; First Amendment to Employment Contract (Jan. 1, 2011), attached as Exhibit 2; Second Amendment to Employment Contract (Jan. I, 2012), at1ached as Exhibit 3.

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79 • As a matter of comity, this Court should stay these proceeding out of deference to the first-filed Oklahoma lawsuit. In accordance with the Contract's mandatory forum-selection clause, OSU filed suit for breach of contract in Oklahoma state court in Payne County, three days before this lawsuit was filed. Because the Oklahoma lawsuit involves the same subject matter as this lawsuit and will resolve all claims and all defenses as to all parties in both lawsuits, Texas law strongly urges the stay of this lawsuit.

Accordingly, OSU and Mr. Holder respectfully request an order: (i) dismissing all of Mr.

Wickline' s claims in this lawsuit without prejudice based on the Contract's mandatory forum-

selection clause; or, in the alternative, (ii) staying this lawsuit pending the outcome of the first-

filed Oklahoma lawsuit.

II. BACKGROUND

Mr. Wickline is a very good football coach. That is why OSU originally hired him in 2005,

offered him the Contract on January 1, 2009, to remain as an assistant coach for the OSU football

team, and granted him a raise and extended the Contract through two different amendments.

During this process, both sides inserted provisions into the Contract to protect themselves if certain

circumstances arose. For example, because Mr. Wickline's importance to tl1e football team and

OSU was valuable and difficult to calculate, the Contract was intended to protect OSU in the event

Mr. Wickline left before the Contract expired. The following three provisions are important to

Defendants' motion:

(i) a liquidated-damages clause to compensate OSU if Mr. Wickline terminated the Contract without cause before it expired on its own terms;2

(ii) a provision that would permit Mr. Wickline to avoid the liquidated-damages clause if he terminated the Contract without cause to assume employment as, among other things, "an Offensive Coordinator (with play calling duties) at a NCAA Division I-A institution"· 3 and '

2 See Ex. 1 (Contract), at ,111. 3 See Ex. I (Contract), at ~ J 1; Ex. 2 (first amendment to the Contract); Ex. 3 (second amendment to the Contract).

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80 (iii) a mandatory forum-selection clause that selected the District Court of Payne County, Oklahoma, as the exclusive venue for a lawsuit to enforce the Contrnct. 4

A. The Contract's liquidated-damages clause and its amendments

As the Contract explains, and as the parties agreed, Mr. Wickline has "special, exceptional,

and unique knowledge, skill, and ability as a football coach which . .. render [his] services

unique," 5 and OSU's loss of his services before the Contract expires "cannot be estimated with

certainty, or fairly or adequately compensated by money damages." 6 Replacing Mr. Wickline

would affect OSU in many ways:

(i) the valuable relationships he developed while recruiting players to join OSU's football team would be impacted, particularly if he left OSU to join a competing member institution of the Big Twelve Conference, where his recruiting relationships could be used for the benefit of a direct competitor recruiting from the same geographic region as OSU;

(ii) his coaching and development of current players would be adversely affected;

(iii) it would take time and resources to recruit, hire, and train Mr. Wick.line's replacement, and

(iv) his knowledge of OSU's offensive schemes and tendencies could be reported to OSU's direct conference competition to be used against OSU.

Many, if not most, of these consequences cannot accurately be measured in dollars.

To account for these difficult-to-measure damages that would be caused by Mr. Wickline's

premature departure from OSU, the parties agreed upon and contracted for liquidated damages in

the event the Contract was terminated before it expired on its own terms. 7 The Contract initially

provided that if Mr. Wickline left OSU for any reason-other than to become the head football

4 Ex. I (Contract), at if 14. 5 Ex. 1 (Contract), at if l 1. 6 Ex. 1 (Contract), at if 11. 7 See Ex. I (Contract), at '1~ 9- l l.

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81 coach at an NCAA Division I-A institution-he would owe OSU liquidated damages in the amount

of 50% of the remaining salary he was due under the Contract on the date of termination. 8 The

Contract's liquidated-damages clause runs both ways: if OSU terminated the Contract without

cause, it would become obligated to pay Mr. Wickline his salary for the remainder of the Contract. 9

The head-coach exemption, and other exemptions discussed below, were intended to

remove disincentives for Mr. Wickline to climb the football-coaching ladder and pursue positions

with more responsibility with other teams. Such clauses are not uncommon for assistant football

coaches, and this one permitted Mr. Wickline to seek advancement elsewhere while still protecting

OSU from early contract termination if Mr. Wickline attempted to make a lateral move to accept

a similar assistant coaching job at another school.

The liquidated-damages provisions were later amended in two important respects. First,

two additional categories of jobs were added for which Mr. Wickline would not owe liquidated

damages if he left OSU early: (i) offensive coordinator (with play calling duties) at an NCAA

Division l-A institution or (ii) assistant coach in the National Football League. 10 Second, subject

to the job-category exemptions explained earlier, the amount of liquidated damages was increased

to 100% of Mr. Wickline' s remaining salary on the date of termination if he accepted employment 11 with another member institution of the Big Twelve Conference. As discussed above, the hann

caused if Mr. Wickline left OSU to accept employment with a direct conference competitor would

be greater than if he left to join other schools: among other things, he would be utilizing recruiting

8 Ex. 1 (Contract), at 1f 11. 9 Ex. 1 (Contract), at ii I0. IO See Ex. 2 (first amendment to the Contract). 11 See Ex. 3 (second amendment to the Contract).

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82 relationships he developed at OSU for the benefit of a direct regional competitor, and would be

providing knowledge of OSU' s offensive schemes to an opponent it played every year.

B. Mr. Wickline leaves OSU to accept the position of "offensive coordinator" at UT

On or about January 12, 2014, Mr. Wickl ine unilaterally te1minated the Contract and was

hired as the offensive line coach and supposed "offensive coordinator" for the UT football team

by UT's new head football coach, Charlie Strong. (Mr. Strong had recently been hired by UT after

spending the previous four years as the head football coach for the University of Louisville.) Mr.

Wickline and Mr. Strong had previously worked together when Mr. Wickline served on the

football coaching staff at the University of Florida.

At the time, Mr. Wickline represented to OSU his new title at UT would be "offensive

coordinator" and that he would have "play-calling duties," thereby allegedly excusing his payment

of liquidated damages under the second amendment to the Contract. 12 Based on Mr. Wickline's

representations, OSU did not attempt to enforce the liquidated-damages clause in the Contract

when Mr. Wickline left in January 2014. Later, OSU discovered Mr. Wickline's representations

were untrue.

C. Shawn Watson, not M r. WickJine, is calling offensive plays for UT's football team.

At or near the same time Mr. Wickline was hired by UT, Shawn Watson was also hired as

"assistant head coach for offense." Immediately before joining UT, Mr. Watson served as the

offensive coordinator for Mr. Strong at the University of Louisville, where Mr. Watson called

offensive plays. During spring football practices a few months after Mr. Watson and Mr. Wickline

were hired, Mr. Strong was quoted as saying: (i) Mr. Watson is "gonna be in charge" of play

12 See Ex. 3 (second amendment to the Contract).

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83 calling, to CBS Sports reporter Jeremy Fowler; 13 and (ii) in terms of play-calling, "[t]he one final

voice will be Shawn," to ESPN repo1ter Max Olson. 14 A number of things became clear after Mr.

Strong's comments to the media: Mr. Wickline was UT's "offensive coordinator" in name only,

he would not have exclusive play-calling duties, and bis new title was likely an attempt to avoid

the Contract's liquidated-damages clause.

Mr. Holder, in his official capacity as Vice President for Athletic Programs for OSU, sent

Mr. Wickline a letter on March 24, 2014, to inform him his new position at UT did not exempt

Wickline from payment of liquidated damages under Section 11 of the Contract after Mr. Strong

publicly confirmed the true nature of Mr. Wickline's new position with UT. 15 Accordingly, OSU

requested payment of the liquidated damages described by Section 11 of the Contract. 16

D. The Oklahoma lawsuit

As required by Section 14 of the Contract, a second letter was sent to Mr. Wickline on

April 22, 2014, which gave bim 30 days' notice of OSU's intent to file a lawsuit to enforce the

Contrncfs liquidated-damages clause. 17 After months of waiting for Mr. Wickline to comply with

the Contract's obligations, OSU filed suit in the District Court of Payne County, Oklahoma, on

October 17, 2014 (the Okla11oma lawsuit). A copy of the file-stamped petition in Board ofRegents

v. Gregory Joe Wickline, cause nun1ber CJ-2014-430, is attached as Exhibit 8.

13 Fowler article (Mar. 7, 2014), at 2, attached as Exhibit 4. 14 Olson a1ticle (Mar. 19, 2014), at 1, attached as Exhibit 5. 15 See genera/fy Holder letter to Wickline (Mar. 24, 2014), attached as Exhibit 6. 16 Ex. 6 (Holder letter to Wickline), at 2. 17 See Stephens letter to Wickline (Apr. 22, 2014), attached as Exhibit 7; Ex. 1 (Contrnct), at~ 14.

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84 E. Mr. Wickline's belated race to the courthouse

Instead of proceeding in Oklahoma-as required by his agreement in the Contract and

where a lawsuit was already pending-Mr. Wickline filed this second lawsuit three days later, on

October 20, 2014 (the Texas lawsuit). He has asserted two claims in this suit, both of which will

or could be resolved by the Oklahoma lawsuit: (l) a request for declaratory relief against OSU to

construe and interpret the phrase "Offensive Coordinator (with play calling duties)" from the

Contract; and (2) tortious interference with existing contractual relations against both OSU and

Mr. Holder, based on their alleged interference with his new UT contract.

III. ARGUMENTS AND AUTHOIUTIES

Defendants move to dismiss all of Mr. Wickline's claims in this lawsuit based on the

Contract's mandatory forum-selection clause. In the alternative, Defendants move to stay

proceedings in this lawsuit until the first-filed Oklahoma lawsuit is resolved.

A. The Contract's mandatory forum-selection clause compels dismissal of Mr. Wickline's claims.

While the Contract contains a choice-of-law provision stating it is being entered into under

and shall be governed by Oklahoma law, 18 Texas courts apply Texas law when interpreting and

applying fomm-selection clauses, regardless of whether the parties contracted to apply the

substantive law of another jurisdiction. 19 Therefore, Texas forwn-selection law should be applied

to this dispute.

Under Texas law, forum-selection clauses are generally enforceable and presumptively

valid. 20 A motion to dismiss is the proper procedural vehicle to enforce a mandatory forum-

18 Ex. I (Contract), atil 17. 19 See Jn re Lisa laser U.S.. fnc. , 310 S.W.3d 880, 883 n.2 (Tex. 2010). 20 Jn re laibe Corp. , 307 S. W.3d 3 J 4, 3 I 6 (Tex. 20 l 0).

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85 selection clause.21 A two-step analysis is used to determine the applicability and enforceability of

a forum-selection clause:22

• First, the party seeking to enforce the clause bears the bmden to demonstrate two things: the parties entered into an agreement for an exclusive forum to settle disputes, and the scope of the fonun-selection agreement applies to the claims involved. 23

• Second, the burden shifts to the party resisting enforcement to clearly show: (1) enforcement would be mu·easonable 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. 24

1. The Contract's mandatory forum-selection clause applies to claims that "give force or effect to or carry out the clauses of the Contract."

As the parties seeking to enforce a forum-selection clause, Defendants bear the burden

under step one to show the clause applies to the claims at issue. 25 Here, there should be no dispute

the Contract contains a forum-selection clause: Section 14 plainly requires that any lawsuit to

enforce the Contract must be filed in Payne County, Oklahmna.26 The operative language of the

Contract's forum-selection clause is pasted below:

21 See Accelerated Christian Educ., Inc. v. Oracle Corp., 925 S.W.2d 66, 70 (Tex. App.- Dallas 1996, no writ); Busse Pac{(ic Cattle Feeding Fund#/, ltd., 896 S.W.2d 807, 812- 13 (Tex. App.- Texarkana 1995, writ denied); 11. Greenwood v. Tillamook Country Smoker, Inc. , 857 S.W.2d 654, 657 (Tex. App.-Houston [lst Dist.] I 993, no writ); Pozero v. Alfa Travel, Inc., 856 S. W.2d 243, 244 (Tex. App.-San Antonio 1993, no writ). 22 Young v. Valt.X Holdings, Inc., 336 S.W.3d 258, 262 (Tex. App.- Austin 20 I 0, pet. dism'd). 23 Young, 336 S.W.3d at262. 24 In re ADM Inves. Servs., inc. , 304 S. W.3d 371, 375 (Tex. 20 l 0). 25 Young, 336 S.W.3d at262. 26 Ex. I (Contract), at~ 14.

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86 to cover Coach in the use and operation of said vehicle, during the term of this Contract . 14 . Any action to enforce any of the provisions of this Agreement shall be filed in the Payne County District court. No such action may be filed tmtil the party claiming to be aggrieved shall first have delivered to the other a written notice of intention to file suit, including an outline of complaints.

Further, the use of the plu·ase "shall be filed'' renders the clause mandatory under Texas law.27 The

only remaining question-and the likely source of Mr. Wickline's resistance-is whether his

claims fall within the scope of the clause. The answer to that question is yes (as he himself bas

conceded in his recent filings in the Oklahoma lawsuit). 28

In determining the scope of a forum-selection clause, Texas courts apply principles of

contract interpretation, with the primary objective being to ascertain and give effect to the parties'

intentions.29 That means, unless the contract shows otherwise, terms will be given their "plain,

ordinary, and generally accepted meaning."30 In other words, the court engages in a "common-

sense examination of the claims and the forum-selection clause to determine if the clause covers

the claims. "3 1

27 See Phoenix Network Techs. (Europe) Ltd. v. Neon Sys. , inc., 177 S.W.3d 605, 615 (Tex. App-Houston [1st Dist.] 2005, no pet.) ("The use of 'shall' generally indicates a mandatory requirement."). 28 See Mr. Wickline' s special appearance and motion to dismiss the Oklahoma lawsuit, at 10, attached as Exhibit 9. 29 Young, 336 S. W.3d at 262 (citing Sw. lntelecom, Inc. v. Hotel Networks Corp., 997 S.W.2d 322, 324-25 (Tex. App.- Austin 1999, pet. denied)). 30 See RSR Corp. v. Siegmund, 309 S.W.3d 686, 700 (Tex. App.- Dallas 2010, no pet.) (citing Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 662 (Tex. 2005)). 31 In re Int'/ Profit Assocs., Inc., 274 S.W.3d 672, 677 (Tex. 2009).

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87 In this case, the phrase requiring interpretation is "[a]ny action to enforce any of the

provisions of this Agreement."32 For our purposes, it can be broken into two patts: (1) "enforce"

and (2) "provisions of this Agreement."

Texas courts commonly turn to dictionaries like Black's Law Dictionary or Merriam-

Webster's Collegiate Dictionary when interpreting contractual terms. 33 Merriam-Webster's

Collegiate Dictionary defines "enforce>' as "to give force to" or "to carry out effectively. "34 In

Black's Law Dictionary, it is defined as "to give force or effect to>' or "to compel obedience to."35

" [P]rovisions of this Agreement" is a simple, direct phrase, and a clear reference to the benefits

and obligations contained within the Contract. Further, Black's Law Dictionary defines

"provision" as "a clause in a statute, contract, or other legal instrument. "36 Combining these

definitions, the phrase "enforce any of the provisions of this Agreement" therefore means " to give

force or effect to or to cany out the clauses of the Contract."

2. All of Mr. Wickline's claims fall within the scope of the Contract's mandatory forum-selection clause.

As stated above, Mr. Wickline has asserted two claims in this lawsuit: (1) a request for

declaratory relief against OSU; and (2) tortious interference claims against OSU and Mr. Holder

for allegedly interfering with Mr. Wickline's new UT contract. Both of these claims are actions

to give force or effect to or to carry out the clauses of the ContTact.

32 See Ex. 1 (Contract), at ii 14. 33 See, e.g. , RSR Corp., 309 S.W.3d at 70 I (consulting Webster's Third New International Dictionary and Black's Law Dictionary to interpret the word "hereunder"). 34 MERRIAM-WEBSTER'S COLLEG IATE DICTIONARY 413 (l. lfJ1 ed. 2003). 35 BLACK'S LAW DICTIONARY 569 (8th ed. 2004). 36 BLACK'S LAW DICTIONARY 1262 (8th ed. 2004).

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88 a. The declaratory judgment claim falls within the clause.

Mr. Wickline' s claim for declaratory relief against OSU-which asks this Court to construe

the plu·ase "Offensive Coordinator (with play calling duties)"-is an action to give force or effect

to or carry out a clause of the Contract. As discussed above, the Contract requires Mr. Wickline

to pay liquidated damages if he terminates the Contract prematurely, but he is excused from paying

such damages if the termination was to accept certain enumerated positions.37 ln other words, the

default rule for early termination is the payment of liquidated damages, and excusing payment

because Mr. Wickline accepted ce1tain types of employment is the exception. "Offensive

Coordinator (with play calling duties)" is one of the positions for which Mr. Wickline could leave

OSU without paying liquidated damages, a category that was added by the Contract's second

amendment. 38

The only purpose of Mr. Wickline's claim for declaratory relief in this lawsuit is to enable

him to "give force or effect to or to carry out" the Contract's second amendment, which would

permit him to avoid paying liquidated damages. Without doubt, Mr. Wickline is seeking this

Comi's interpretation of the plu-ase "Offensive Coordinator (with play calling duties)" to enforce

the Contract's second amendment. This interpretation is altogether common-Texas courts

regularly conclude a request for declaratory relief concerning all or part of a contract falls within

a forum-selection clause contained within that contract. 39 Further, Mr. Wickline's suggestion that

a declaratory-judgment action is distinct from (and therefore dissimilar to) a breach-of-contract

37 Ex. l (Contract), at ir 11. 38 Ex. l (Contract), at ii I l; Ex. 3 (second amendment to the Contract) . 39 See, e.g., AIU ins. Co., 148 S.W.3d at 110-1 l; Jn re Tyco Elecs. Power Sys., inc., No. 05-04-0 1808-CV, 2005 Tex. App. LEXIS 819, at *l- 2 (Tex. App.- Dallas Feb. 2, 2005 , orig. proceeding).

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89 claim because a declaratory-judgment action is "preventative in nature" 40 is simply wrong: Texas

law is very clear that a declaratory-judgment suit may be brought before or after a breach of the

contract to be interpreted. 4 L

Because Mr. Wickline's request for declaratory relief is an action to give force or effect to

the Contract's second amendment, in order to avoid paying OSU liquidated damages under Section

11 of the Contract, it falls within the Contract's mandatory forum-selection clause and should be

dismissed.

b. The tortious interference claims fall within the clause.

It is conunon for plaintiffs seeking to avoid a contractual forum-selection clause to

characterize their claims as torts rather than contract-based actions. 42 This artful-pleading

technique has been rejected by the Texas Supreme Couti, which has "foresworn slavish adherence

to the contract/tort distinction" when detem1ining the applicability of a forum-selection clause. 43

Instead of evaluating whether a forum-selection clause applies to a plaintiffs claim based on the

claim's title, Texas trial cou1is are directed to look beyond such labels and to conduct a "common-

sense examination of the substance of the claims made. "44

First, the Contract's mandatory forum-selection clause applies to the substance of Mr.

Wickline's claims that OSU and Mr. Holder tortiously interfered with Mr. Wickline's new

40 See Mr. Wickline's response to Defendants' motion to dismiss and motion to stay, at 4, attached as Exhibit 10. 41 See MBM Fin. Corp. v. Woodlands Operating Co., L.P., 292 S.W.3d 660, 667 (Tex. 2009). 42 Barnelte v. United Research Co., 823 S.W.2d 368, 370 (Tex. App.- Dallas 1991, writ denied) (appellate court rejected plaintiff's argument that noncontractual theories fel I outside the forum-selection clause because the claims "ar[o]se out of the contractual relation and implicate the contract's terms"); Oracle Corp., 925 S.W.2d at 72- 73, overruled in part on other grounds by In re AIU Ins. Co., I48 S.W.3d J09 (Tex. 2004) (same). 43 See Int '/ Pro.fit Assocs., 274 S.W.3d at 677. 44 fnt'l Profit Assocs., 274 S.W.3d at 677- 78.

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90 employment contract with UT. 45 A closer look at allegations underlying the claim reveal

Defendants' allegedly tortious conduct actually concerns their attempts to secure Mr. Wickline's

compliance with the Contract. What Mr. Wickline characterizes as "harassing and intimidating"

behavior in paragraphs 12-16 of his original petition were letters explicitly asking Mr. Wickline

to comply with Section 11 of the Contract.46 (Copies of the letters Mr. Wickline references have

been submitted as exhibits 6 and 7 to this brief.) The same allegations are repeated in Mr.

Wickline's latest filing, where he again assetis hjs tortious-inte1ference claims arise from

Defendants' letters that sought compll ance with the Contract's terms. 47

Those letters were sent as mandated by the terms of the Contract. In other words, the bases

for Mr. Wick.line's tort claims are OSU and Mr. Holder's efforts to enforce rights under and

comply with the terms of the Contract. Under any common-sense examination of the substance

of Mr. Wickline's tortious-interference claims, they concern an effort to give force or effect to or

to carry out a clause of the Contract.

Second, decisions in similar cases demonstrate the Contract's mandatory forum-selection

clause applies to Mr. Wickline's tortious-interference claims. In In re Counsel Financial Services,

L.L. C., the Corpus Christi comt of appeals held a forum-selection clause was implicated because

a party's defensive claims would not exist but for the contract containing the forum-selection

clause. 48 Federal district cou1is in Texas have explicitly held a forum-selection clause is triggered

45 Orig. pet. at ilil 18- 20. 46 Orig. pet. at ilil 12- 16; see also Ex. 6 (Holder letter); Ex. 7 (Stephens letter). 47 Ex. I0 (Mr. Wickline's response to Defendants' motion to dismiss), at 4. 48 No. l3-l2-00151-CV, 20 13 Tex. App. LEXlS 9255, at * 17- 18 (Tex. App.- Corpus Christi .July 25, 2013, orig. proceeding).

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91 wbere-iJ1 order to resolve a plaintiff's claims or a defendant's defenses-the court is required to

construe the contract containing the forum-selection clause.49

That is exactly what will be required here: Defendants have asserted in their responsive

pleadings that their allegedly tortious actions (letters to Mr. Wickline seeking liquidated damages

under the Contract) were privileged or justified because they were the exercise of Defendants' own

contractual rights, because Mr. Wickline did not accept employment as an "Offensive Coordinator

(with play calling duties)." 50 (Under Texas law, a paity may assert the affirmative defenses of

privilege or justification in response to a tortious interference claim. 51 ) Just as in Counsel

Financial Services, Giant Eagle, and Aerus LLC, the Contract's forum -selection clause is

implicated because this Court will be required to construe the Contract to resolve Defendants'

privilege and justification defenses to Mr. Wickline' s tortious-interference claims.

Mr. Wicldine's attempt to artfully plead around the Contract's forum-selection clause is

unavailing. His to1iious-interference claims implicate the clause because (i) the substance of his

claims concern enforcement of the provisions of the Contract, and (ii) Defendants' defenses would

not exist without the Contract. Therefore, those claims should be dismissed.

49 See Excentus Corp. v. Giant Eagle, Inc., No. 3:11-CV-3331 -B, 2012 U.S. Dist. LEXIS 91250, at *15-16 (N.D. Tex. July 2, 2012); Aerus llC v. Pro Team, Inc., No. 3:04-CV-1985-M, 2005 U.S. Dist. LEX1S 8559, at *24- 25 (N.D. Tex. May 9, 2005). so Mr. Holder's special appearance, motion to dismiss, motion to stay, plea to the jurisd iction, and original answer, at ifif 39-40; OSU's special appearance, motion to dismiss, motion to stay, plea to the jurisdiction, and original answer, atifif 38- 39. 51 See Prudential Ins. Co. ofAm. v. Fin. Review Servs., inc., 29 S. W.3d 74, 81 (Tex. 2000) ("Generally, justification is established as a matter of law when the acts the plaintiff complains of as tortious interference are merely the defendant's exercise of its own contractual rights.").

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92 3. Mr. Wickline cannot clearly show the Contract's mandatory forum-selection clause should not be enforced.

Because Defendants have shown there is a forwn-selection clause and Mr. Wickline' s

claims fall w ithin its scope, the burden now shifts to Mr. Wickline to clearly show: (1) enforcement

of the clause would be umeasonable 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. 52 The burden of

proof is heavy for the party challenging enforcement. 53

None of tbe factors listed above supp01is a failure to enforce tbe forum-selection clause:

(1) To make enforcement unreasonable or unjust, any inconvenience of litigating in the chosen forum that was foreseeable at the time of contracting must render trial "so gravely difficult and inconvenient that [Mr. Wickline] will for all practical purposes be deprived of his day in court. " 54

(2) In order to invalidate a forum -selection clause, any fraud or overreaching must involve the negotiation of the forum-selection clause itself. 55 Any alleged fraud or overreaching related to other portions of the contract is not sufficient. 56 Mr. Wickline has not alleged, and in all likelihood will not allege, there was fraud or overreaching during negotiation of the forum-selection clause.

(3) Mr. Wickline has not identified any strong Texas public policy that would be contravened by dismissal of this suit so that it can proceed in Payne County Oklahoma, and Defendants are not aware of any.

(4) And finally, simply by entering into the Contract, Mr. Wickline represented to OSU and Mr. Holder that Payne County, Oklahoma, is not so inconvenient that it would deprive him of his day in court. 57

52 ADM Jnves. Servs., 304 S. W.3d at 375. 53 ADM Jnves. Servs. , 304 S.W.3d at 375. 54 See Fish & Falk, L.l.P. v. Pinkston's l awnmower & Equip., Inc. , 317 S.W.3d 523, 529- 30 (Tex. App.- Dallas 20 I0, no pet.). 55 Young, 336 S.W.3d at266. 56 Young, 336 S.W.3d at 266.

57 See laibe, 307 S.W.3d at 317.

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93 Because Mr. Wickline has not and cannot meet his " heavy burden" to show the Contract's

mandatory forum-selection clause should not be enforced, his claims in this lawsuit should be

4. Defendant Mike Holder is entitled to invoke the Contract's mandatory forum- selection clause.

To the extent Mr. Wickline attempts to claim Mr. Holder is not entitled to invoke the

Contract's forwn-selection clause, this is incorrect. Mr. Holder is a signatory to the Contract and

both contractual amendments. An image of the Contract's signature page is below:

and on the same forms as are utilized by t:he University for other Athletic Department and University employees. ist day of January, 2 009 .

By:J!._..:._j~~~~r:::..t.~~;.2:1~~ Mik gold r, Vice President for · v . Burns Hargis Athletic Programs and Director President of Intercollegiate Athletics

Further, Mr. Holder's approval through his signature, as director of intercollegiate athletics, was

explicitly required by Section 15 before the Contract became effective. 58 Mr. Holder's status as a

signatory to the Contract means he may enforce any of its provisions, including the mandatory

forum-selection clause.

58 Ex. l (Contract), at 4i! I I.

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94 Any suggestion by Mr. Wickline that Mr. Holder may not invoke the forum-selection

clause because he is being sued in his individual capacity would also be incorrect. Even if Mr.

Holder is considered a non-signatory to the forwn-selection clause-which he is not-Texas

courts have repeatedly held a non-signatory may enforce the clause against a signatory-plaintiff if

the plaintiffs claims assert "substantially interdependent and conceited misconduct by both

nonsignatories and one or more signatories." 59 Here, Mr. Wickline alleges in his original petition

that "Defendants immediately began harassing and intimidating Coach Wickline with false

allegations for the purpose of interfering with his ongoing employment with UT and his UT

Contract. " 60 T hose factual allegations constitute interdependent and concerted misconduct by a

signatory (OSU) and an alleged non-signatory (Mr. Holder).

For both of these reasons, Mr. Holder is entitled to enforce the Contract's forum-selection

clause with the same force and effect as OSU.

B. Comity requires this Court to defer to the first-filed Oklahoma lawsuit.

As discussed above, OSU filed suit against Mr. Wickline in the District Court of Payne

County, Oklahoma, on October 17, 2014. This lawsuit was fi led three days later, on October 20,

2014. Even if Mr. Wickline's claims are not covered by the Contract' s mandato1y forum-selection

clause-which they are- this lawsuit should be stayed in deference to the first-filed suit in

Oklahoma for three reasons: (1) Mr. Wickline himself has admitted the lawsuits concern the same

issues; (2) Texas trial courts are "strongly urged" to stay or dismiss second-filed actions; and (3)

Texas discourages the use of declaratory relief as a forum-shopping device.

59 In re Cornerstone Healthcare Holding Grp., Inc. , 348 S.W.3d 538, 544-45 (Tex. App.- Dallas 201 1, no pet.); see also Phoenix Network Techs., 177 S. W.3d at 620 (same). 60 See Orig. pet. at , l 2.

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95 Texas courts, as a matter of comity, stay their own proceedings if a suit involving the same

subject matter is already pending in another state. 61 In general, the two suits must involve the same

cause of action, concern the same su~ject matter, involve the same issues, and seek the same

relief. 62 Though a stay is not automatically available as a matter of r1ght, the Texas trial court in

which the second action is filed is "strongly urge[ d]" to stay its proceedings. 63

First, and most importantly, Mr. Wickline himself conceded the lawsuits address the same

subject matter. In his initial pleading in the Oklahoma lawsuit, Mr. Wickline made the following

statement: 64

There are alternatives. One of them may be Travis County, Texas. Coach Wickline

has filed a lawsuit against OSU in Travis County, Texas, requesting, among other things,

a declaratory judgment concerning the meaning of "play calling duties" in the Employment

Contract - the same issues in this case. Travis County is a much more just and proper

forum for both Parties to argue their respective cases. The Defendant lives in Austin,

Mr. Wickline's recent denial that the two lawsuits concern the same issues is belied by his own

filings.

Second, even if Mr. Wickline has not already conceded the lawsuits concern the same

issues-which he has- the parties' pleadings bear that out. The Oklahoma lawsuit is for breach

of contract, and was filed by OSU against Mr. Wickline. The Texas lawsuit, filed by Mr. Wickline,

seeks the same declaratory relief as the Oklahoma lawsuit's breach-of-contract claim, and also

61 See Crown Leasing Cmp. v. Sims, 92 S. W.3d 924, 927 (Tex. App.-Texarkana 2002, no pet.) (citing Space Master Int'/, Inc. v. Porta-Kamp Mfg. Co., 794 S.W.2d 944, 946 (Tex. App.-Houston [1st Dist.] 1990, no writ)). 62 In re State Farm Mut. Auto. Ins. Co., 192 S.W.3d 897, 90 J (Tex. App.-Tyler 2006, orig. proceeding). 63 State Farm, 192 S. W.3d at 901. 64 See Ex. 9 (Mr. Wickline's Oklahoma special appearance), at 10.

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96 includes a claim for tortious interference with existing contractual relations against OSU and Mr.

Holder. Mr. Wickline attempts to avoid the stay and argue the parties and causes of action in the

Oklahoma lawsuit are different than the Texas lawsuit, citing Ashton Grove L. C. v. Jackson Walker

L.L.P., a case involving an Oklahoma legal-malpractice suit and a Texas breach-of-contract suit

where the Dallas court of appeals affirmed a denia1 of a motion to stay. 65 In Ashton Grove, the

court of appeals upheld the denial of a motion to stay, finding the claims asserted and relief sought

in each case were dissimilar. 66

The lack of identity as to parties and claims in this case, however, is not dispositive of

Defendants' motion to stay: both suits address the same issue. In In re State Farm Mutual

Automobile Insurance Co., the Tyler cou1t of appeals described a test to employ if the similarity

of two pending lawsuits is in doubt: can the parties obtain all the relief in the first-ft led suit that

they would be entitled to obtain in the second suit?67 Here, there is only one issue in dispute

between the parties, it will necessarily be decided in both suits, and it will resolve all claims and

defenses asserted by all parties:

Does Mr. Wickline's current position as an assistant football coach at UT qualify as an "Offensive Coordinator (with play calling duties)" within the meaning of the Contract?

If tJ1e answer is yes, Mr. Wickline has not breached the Contrnct and his tortious interference

claims could be litigated. If the answer is no, Mr. Wickline breached the Contract and there was

no totiious interference as a matter of law. In either case, all claims and all defenses could and

would be settled in the Oklahoma lawsuit, where all parties are indisputably subject to jurisdiction

65 Ex. l 0 (Mr. Wickline's response to Defendants' motion to dismiss), at 6 (citing Ashton Grove L.C. v. Jackson Walker L.L.P. , 366 S. W.3d 790, 795 (Tex. App.-Dallas 20 12, no pet.)). 66 Ashton Grove, 366 S.W.3d at 795.

67 State Farm, 192 S. W.3d at 901 .

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97 and venue is proper. This result is distinguishable from the situation presented in Ashton Grove

because the Texas breach-of-contract case (whether a legal client paid its bills) could be resolved

without affecting the merits of the Oklahoma legal-malpractice case.68

Third, Texas comts are generally averse to entertaining requests for declaratory relief

where, as here, the subject matter of the declaratory judgment action is already pending in another

jurisdiction. That's exactly what happened in In re BP Oil Supply Co. and Space Master

International, Inc. v. Porta-Kamp Manufacturing Co., which upheld the dismissals of Texas

declaratory judgment suits because other suits were already pending in foreign jurisdictions

regarding the same subject matter. 69

In support of its ruling, the Space Master court noted the Texas Supreme CoUii has held:

"[A]s a general rule, an action for declaratory judgment will not be entertained if there is pending,

at the time it is filed, another action or proceeding between the same parties and in which may be

adjudicated the issues involved in the declaratory action."70 The Space Master opinion ended with

the following guidance:

Space Master, in the case at bar, conceded that the suit for declaratory judgment involved the same parties and issues as the proceedings pending in the New Jersey state couit and in the Massachusetts federal court. Space Master should not be allowed to use declaratory relief as a forum-shopping device. 71

Just as in Space Master, Mr. Wickline is using declaratory relief as a forum-shopping device.

Instead of confronting the same subject matter in the first-filed OkJahoma lawsuit-after months

68 See Ashton Grove, 366 S.W.3d at 795. 69 In re BP Oil Supply Co., 317 S.W.3d 915, 921- 22 (Tex. App.- Houston [14th Dist.] 2010, orig. proceeding); Space Master, 794 S.W.2d at 945. 70 Space Master, 794 S. W.2d at 947 (quoting Tex. Liquor Control Bd. v. Canyon Creek Land Corp., 456 S.W.2d 89 1 (Tex. 1970)). 71 Space Master, 794 S.W.2d at 948.

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98 of requests and warnings from OSU-he ran to the courthouse in Travis County in an attempt to

obtain what would be a competing interpretation of the Contract. In the words of the Houston

court of appeals, " [t]he Declaratory Judgment Act was never intended to provide for the piecemeal

litigation of lawsuits. " 72

Finally, to the extent Mr. Wickline attempts to minimize the deference due to the first-fi led

Ok lahoma suit because it was fi led "merely" three days before this lawsuit, Texas courts have

deferred based on much less. In BP Oil Supply, the Texas lawsuit was filed less than six hours

after a lawsuit in Delaware, and the Texas cotui's decision to defer was still upheld. 73

In summary, ~tlr. Wickline admits the Oklahoma lawsuit and this lawsuit concern the same

issues; that alone is sufficient to invoke the doctrine of comity to stay or dismiss this case. Further,

under State Farm , this lawsuit should be stayed because Mr. Wickline may obta1n all the relief he

seeks in the Oklahoma lawsuit. And under BP Oil Supply and Space Master, Texas courts are

discouraged from rewarding the type oflitigation tactics employed by Mr. Wickline in this lawsuit:

blatant forum -shopping through the use of declaratory relief For all three of these reasons, this

lawsuit should be stayed in favor of the first-filed Oklahoma lawsuit.

IV. CONCLUSION

This case does not belong in this Court. It is one to enforce a contract signed in Oklahoma,

executed by Oklahoma residents, performable in Oklahoma, and with the District Court of Payne

County, Oklahoma, selected as the exclusive venue for suit as agreed to by the parties. OSU

attempted for months to secure Mr. Wickline's cooperation, and only after OSU was forced to file

suit did Mr. Wickline file this second lawsuit, a lawsuit he admits has the same issues.

72 Space Master, 794 S .W.2d at 948. 73 BP Oil Supply, 3 I7 S.W.3d at 917- 18.

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99 For any or all of the reasons enumerated above, OSU and Mr. Holder respectfully request

an order: (i) dismissing all of Mr. Wickline's claims in this lawsuit without prejudice based on the

Contract's mandatory forum-selection clause; or, in the alternative, (ii) dismissing or staying this

lawsuit pending the outcome of the first-filed Oklahoma lawsuit.

Dated: December 17, 2014 Respectfully submitted,

Sean E. Breen State Bar No. 00783715 sbreen@howrybreen.com Randy Howry State Bar No. 10121690 rhowry@howrybreen .com James Hatchitt State Bar No. 24072478 jhatchi tt@howrybreen.com 1900 Pearl Street Austin, Texas 78705-5408 Tel. (512) 474-7300 Fax (512) 474-8557

Attorneys for Defendants Board ofRegents for the Oklahoma Agricultural and Mechanical Colleges, acting for and on behalfofOklahoma State University, and James Michael Holder

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100 CERTIFICATE OF SERVICE

I certify that a true and correct copy of this document was delivered on December 17, 2014, in compliance with Rules 21 and 2la of the Texas Rules of Civil Procedure, to the parties listed and in the maimer indicated below:

David J. Beck ../ Electronic service dbeck@beckredden.com o In person BECK REDDEN, LLP o Registered mail, return receipt requested 1221 McKinney Street, Suite 4500 o Commercia l delivery service Houston, Texas 77010 o Facsimile Tel. (713) 951-3700 ../ Electronic mail Fax (713) 951-3720

Clu·istopher R. Cowan ccowru1@beckredden.com Kru·son K. Thompson kthompson@beckredden.com BECK REDDEN, LLP 5 15 Congress Avenue, Suite 1750 Austin, Texas 78701 Tel. (512) 708- 1000 Fax (512) 708-1002

Attorneys.for Plaintiff Gregory Joe Wickline

Sean E. Breen

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101 TAB D December 18, 2014 Hearing Transcript (RR 1-35) 1

1 REPORTER'S RECORD VOLUME 1 OF 1 VOLUME 2 TRIAL COURT CAUSE NO. D-1-GN-14-004391 COURT OF APPEALS NO. 03-15-00077-CV FILED IN 3 3rd COURT OF APPEALS AUSTIN, TEXAS 4 GREGORY JOE WICKLINE, ) IN THE DISTRICT COURT 2/13/2015 9:23:19 AM Plaintiff, ) JEFFREY D. KYLE 5 ) Clerk VS. ) 6 ) BOARD OF REGENTS FOR THE ) 7 OKLAHOMA AGRICULTURAL AND ) MECHANICAL COLLEGES, ) 8 ACTING FOR AND ON BEHALF ) OF OKLAHOMA STATE ) 9 UNIVERSITY; AND JAMES ) TRAVIS COUNTY, TEXAS MICHAEL HOLDER, IN HIS ) 10 INDIVIDUAL CAPACITY AND ) IN HIS CAPACITY AS VICE ) 11 PRESIDENT FOR ATHLETIC ) PROGRAMS AND DIRECTOR OF ) 12 INTERCOLLEGIATE ATHLETICS ) FOR OKLAHOMA STATE ) 13 UNIVERSITY, ) Defendants. ) 98TH JUDICIAL DISTRICT 14 15 16 17 _______________________________________________________ 18 19 MOTION TO DISMISS AND MOTION TO STAY 20 21 _______________________________________________________ 22 23 24 25 2

1 On the 18th day of December, 2014, the following 2 proceedings came on to be heard in the above-entitled 3 and numbered cause before the Honorable Amy Clark 4 Meachum, Judge Presiding, held in Austin, Travis 5 County, Texas: 6 Proceedings reported by machine shorthand. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3

1 APPEARANCES 2 3 FOR THE PLAINTIFF: 4 DAVID J. BECK SBOT NO. 00000070 5 BECK REDDEN LLP Suite 4500 6 1221 McKinney Street Houston, Texas 77010 7 Phone: (713) 951-3700 8 - AND - 9 KARSON K. THOMPSON SBOT NO. 24083966 10 BECK REDDEN LLP Suite 1750 11 515 Congress Avenue Austin, Texas 78701 12 Phone: (512) 708-1000 13 14 FOR THE DEFENDANTS: 15 SEAN E. BREEN SBOT NO. 00783715 16 RANDY HOWRY SBOT NO. 10121690 17 JAMES HATCHITT SBOT NO. 24072478 18 HOWRY BREEN & HERMAN, L.L.P. 1900 Pearl Street 19 Austin, Texas 78705 Phone: (512) 474-7300 20 21 22 23 24 25 4

1 INDEX 2 VOLUME 1 3 MOTION TO DISMISS AND MOTION TO STAY 4 5 Page Vol. 6 DECEMBER 18, 2014 7 8 Announcements............................ 5 1 9 Argument by Mr. Breen.................... 6 1 10 Argument by Mr. Beck..................... 22 1 11 Argument by Mr. Breen.................... 31 1 12 Taken Under Advisement................... 33 1 13 Adjournment.............................. 35 1 14 Court Reporter's Certificate............. 36 1 15 16 17 18 19 20 21 22 23 24 25 5

1 THE COURT: This is GN-14-4391, Wickline 2 vs. Oklahoma State. 3 Let me go ahead and take the attorney 4 announcements and also who you're representing for the 5 record. 6 MR. BREEN: Good afternoon, Your Honor. 7 Sean Breen here with Randy Howry and James Hatchitt. 8 We represent the defendants in the case, which we'll 9 refer to as Oklahoma State University and the Athletic 10 Director, Mike Holder. 11 MR. BECK: May it please the Court, David 12 Beck and Karson Thompson for the plaintiff, Coach Joe 13 Wickline. 14 THE COURT: All right. We are here on a 15 motion to dismiss and a motion to stay. That's what I 16 have. I haven't had a chance to read any of the 17 pleadings on this case, just because I was calling the 18 unassigned this afternoon, and so I'm cold, is what I'm 19 saying. So tell me first off, who's the movant and 20 what your motions are. 21 MR. BREEN: Your Honor, the defendants 22 are the movants. We have two very specific motions. 23 They're being made subject to a special appearance that 24 we have filed and subject to a plea in the 25 jurisdiction, which are sort of the bookends on either 6

1 side. 2 These motions are a motion to dismiss 3 because of a mandatory forum selection clause in the 4 contract at issue, and the second motion is an 5 alternative motion to stay or dismiss based on comity, 6 because this is a second filed lawsuit. This lawsuit 7 was filed by Mr. Wickline after a substantially similar 8 or the same lawsuit was filed already in Oklahoma. So 9 those are the two grounds. 10 THE COURT: Okay. And you are the 11 movant? 12 MR. BREEN: Yes, I am, Judge. 13 THE COURT: So please proceed. 14 ARGUMENT BY MR. BREEN 15 MR. BREEN: Thank you very much. Judge, 16 this second filed lawsuit does not belong here in 17 Austin, in the state of Texas. We're asking the Court 18 here today, based on a mandatory forum selection clause 19 and based on its discretion under principles of comity, 20 to dismiss this case and allow the case that was first 21 filed in Oklahoma to proceed. 22 This deals with what you probably have 23 seen in the news a lot lately this time of year, which 24 is coaches that decide to change universities and coach 25 football at a different university. Some do it 7

1 voluntarily, others do it involuntarily. This was a 2 voluntary move by the offensive line coach, 3 Mr. Wickline, from Oklahoma State University to a 4 competitor within the Big XII, the University of Texas 5 here in Austin. 6 Judge, what I've done to help orient you 7 is I -- I have created a timeline of events that I 8 think this -- Judge, that are -- or I will just 9 succinctly walk through with you, which I think help 10 orient and frame then the fairly straightforward 11 analysis on the forum selection clause and then under 12 the motion to stay or dismiss based on comity. 13 So, Mr. Wickline was coaching the 14 offensive line and the running game coordinator at the 15 University of Florida from 2002 to 2004. He then 16 moved, Your Honor, and was hired by Oklahoma State 17 University. They've been sued through the Board of 18 Regents in this case, but shorthand, I'll -- I'll just 19 use that phrase, or OSU, if the Court doesn't mind. 20 And then Mr. Holder is the Athletic Director and one of 21 the vice presidents at the University -- Oklahoma State 22 University. 23 Mr. Wickline signed his first employment 24 contract with OSU to become the offensive line coach in 25 January of 2005. That first contract had a term to it. 8

1 And pertinent to these issues, Judge, it also had a 2 couple of provisions; one, it had a mutual 3 liquidated-damage provision. Easy to understand. If 4 the University fired him, he got paid a liquidated sum 5 of money. If he quit and went somewhere else, he would 6 have to pay a liquidated sum of money. It's very 7 common in the coaching industry to have that in 8 employment contracts. 9 It also, Your Honor, had a mandatory 10 forum selection clause that set the District Court of 11 Payne County, Oklahoma, as the situs -- for disputes 12 arising under the contract or involving the contract. 13 That's Paragraph 14. I put a little sticky on it, 14 Judge, in your notebook. It's under Tab 5. It has a 15 sticky. 16 Paragraph 14 there that says, "Any action 17 to enforce any of the provisions of this agreement 18 shall be filed in the Payne County District Court." 19 That's the pertinent sentence that runs through every 20 single renewal or contract that Mr. Wickline signed 21 with OSU. And, Judge, that was seven of them. Seven 22 times he renewed or signed ratifying that mandatory 23 forum selection clause. You'll note it uses the term 24 shall. 25 He signed a second contract in January of 9

1 2009. It made some provisions, Judge, because the 2 intent of the agreement was, if Mr. Wickline took a job 3 that was a promotion, NFL or a head coach, et cetera, 4 then that would be a -- what the plaintiff refers to as 5 a safe harbor. He wouldn't have to pay back the 6 liquidated-damage clause, because it was intended to 7 just apply to lateral moves, not moves where he was 8 furthering himself up the ladder. 9 And mind you, Judge, this is a very 10 talented coach. He was extremely successful at 11 Oklahoma State University, and some believe performed 12 miracles here at UT this fall given the decimated line 13 that he had. So there's no disparaging or bad feelings 14 or -- or lack of talent on Mr. Wickline's part. It's 15 just the opposite. That's exactly why these provisions 16 were in the contract is because he is so talented and 17 important. 18 You'll see in January 2011, Judge, there 19 was another employment contract amendment signed. And 20 this one is also at issue here. It added a -- again, 21 what a phrase the plaintiff uses, a safe harbor phrase 22 that says, If he become the offensive coordinator with 23 play-calling duties, then that's an exception, and he 24 doesn't have to pay back the liquidated-damage clause. 25 So, again, Judge, if he made a move and 10

1 became an offensive coordinator pretty much anywhere 2 with these play-calling duties, he wouldn't have to pay 3 back the money that he had agreed to pay. In January 4 of 2012 -- 5 THE COURT: Hold on one second. 6 (Off the record.) 7 MR. BREEN: In January of 2012, the 8 seventh time Mr. Wickline signed an employment 9 contract, it increased the liquidated-damage provision 10 if Mr. Wickline left to go to a competitor within the 11 Big XII, such as UT. And, in fact, Judge, that's 12 exactly what happened. 13 In January of 2014, Mr. Strong became the 14 coach at the University of Texas. Given his previous 15 ties with Mr. Wickline and Mr. Wickline's immense 16 talent, Mr. Wickline then unilaterally and voluntarily 17 terminated his employment with OSU and became a coach 18 here at the University of Texas. He represented that 19 his new position was offensive coordinator, offensive 20 line coach, and that he would have play-calling duties. 21 That, then, Judge, allegedly put him 22 within the safe harbor so that he didn't have to pay 23 back the money that he'd agreed to under the contract, 24 the mutual liquidated-damage clause. 25 In March of 2014 it became apparent 11

1 through comments in the press, or at least readily 2 apparent to Oklahoma State University, that 3 Mr. Wickline did not have the play-calling duties that 4 had been the intent of the contract to save the 5 liquidated-damage provision. There are a couple of 6 articles that I have included, not for the truth of the 7 matter but just for notice, that indicated to OSU he 8 was not going to be the person calling the plays; 9 instead Mr. Shawn Watson was. 10 Therefore, Judge, on March 24th, the 11 Athletic Director, Mike Holder, sent a letter to 12 Mr. Wickline. The letter is also included in our 13 packet to you. It's Exhibit D. The letter is called 14 for by the employment contract to give notice to 15 Mr. Wickline that Oklahoma State believes he owes them 16 the liquidated-damage money because he didn't have the 17 play-calling duties. Mr. Holder obviously sent it and 18 signed it on Oklahoma State letterhead, expressly 19 signed as Vice President for Athletic Programs and 20 Director of Intercollegiate Athletics. It's in his 21 official capacity of VP and Athletic Director for 22 Oklahoma State. 23 That was then followed up by a letter, 24 April 22nd, by the general counsel for Oklahoma State 25 because the contract requires, before a lawsuit can be 12

1 filed in the mandatory venue of Oklahoma, you have to 2 give 30 days' notice and participate in good faith 3 negotiations. That was delivered on April of 2014. 4 Some six months later, with no progress 5 in the negotiations, Oklahoma State filed the suit, and 6 you have a copy of it, Judge. And it's for breach of 7 contract against Mr. Wickline, and it's requesting the 8 liquidated damages that are -- he owes them under the 9 provisions of the contract; the two main ones that 10 we've talked about. 11 Mr. Wickline answered in that lawsuit and 12 he filed a motion to dismiss, among other different 13 things. But, importantly, Judge, three days later, he 14 also filed this lawsuit here in Texas, in Travis 15 County, against Oklahoma State and the Athletic 16 Director, and we believe it's virtually identical and 17 essentially the same issues, Judge. 18 He's suing on two things. One, he's 19 asking for declaratory relief under Chapter 37 of the 20 Civil Practice & Remedies Code about a provision in the 21 contract, that's the play-calling duties provision. 22 And then, Judge, he also sued Mr. Holder and the 23 University for tortious interference with his -- his 24 employment contract here at UT. And the basis in the 25 pleadings is, the letters that Oklahoma State 13

1 University sent to Mr. Wickline under the contract, the 2 notice letters that you see in your packet. Those are 3 the claims that are made here. 4 The University, as I pointed out to you, 5 Judge, we filed a special appearance because of lack of 6 jurisdiction. We've also filed on the back-end 7 basically Tort Claims Act defenses under Oklahoma law 8 because Oklahoma law applies. 9 But there's ample case law in the state 10 of Texas that says, This narrow issue of forum 11 selection or comity can be addressed, because as you 12 know, the losing party would either have the right of 13 appeal or mandamus right away. And it would be 14 potentially dispositive of the whole case here. 15 Interestingly, I've been informed that 16 Mr. Wickline's motion to dismiss in Oklahoma was denied 17 this morning. There was a hearing in Oklahoma. It was 18 denied, and that case is moving forward on the merits 19 in Oklahoma, as we speak. 20 Now, Judge, that brings us to the two 21 issues before you, and that is, should the Court 22 dismiss the case based on the forum selection clause, 23 the answer's yes; or alternatively, should be dismissed 24 or stayed based on principles of comity, if it isn't 25 dismissed because of the forum selection clause. 14

1 In the first instance, Judge, what I've 2 done is, we set out for you -- and you haven't had a 3 chance to see it -- that even though Oklahoma law 4 applies under the contract, under forum selection 5 analysis, Texas law applies. So all the cases that I 6 cited to you and that Mr. Hatchitt cited to you in the 7 brief, are Texas cases on the issue. 8 Now, two points, Judge. As you well 9 know, we're seeking to dismiss it, so we have the 10 burden to demonstrate two things; that there's an 11 agreement for an exclusive forum to settle the disputes 12 and the scope of that agreement includes the claims 13 that are made here. All right? 14 So turning to the first one, as you've 15 seen -- and I don't believe is in dispute in this 16 case -- there's clearly a mandatory forum selection 17 clause in Paragraph 14 of the employment agree -- 18 agreement, and it's there to enforce any of the 19 provisions of this agreement that has to be done in 20 Oklahoma, per the agreement of the parties. It shall 21 means mandatory, and it was agreed to by Mr. Wickline 22 seven times. 23 There isn't anything I've seen yet that 24 challenges the existence of the agreement. Instead 25 Mr. Wickline has opposed this motion based on the scope 15

1 of the agreement. Their claims are that to enforce any 2 of the provisions of the agreement don't apply to the, 3 basically, mirror claims that he has brought in this 4 case, which we believe are really the same issues, 5 Judge. 6 So that then takes you to what I've put 7 in Tabs 3 and 4 of your notebook, which is the law that 8 applies to the scope of a forum selection clause and 9 how we determine it. And really, Judge, it boils down 10 to a common sense examination of the terms. That's 11 really simply what the Supreme Court has said that we 12 have to do in this instance. So you have to first 13 decide, what does enforce any provisions of the 14 agreement mean? And we believe that a common sense 15 interpretation of that simply means to give force or 16 effect or to carry out the clauses of the contract. 17 It's just that simple. And that makes perfect sense. 18 So then, Judge, what you do is you look 19 at the two claims they've made, and you decide, okay, 20 do any of those two claims implicate that provision, 21 and if so, they fall within the forum selection clause. 22 The first one is expressly -- expressly 23 asking the Court to interpret a provision of that 24 Oklahoma State contract. Okay? That clearly -- 25 that dec action, absolutely on its face, calls for the 16

1 Court to carry out and interpret what and whether this 2 safe harbor provision will apply. There -- I don't 3 believe there's any question about that whatsoever. 4 The second issue, Judge, is that the -- 5 the case here has this twist because it -- there was 6 this tortious interference added. Okay. Tortious 7 interference allegedly -- mind you, Coach Wickline 8 hasn't lost his job at UT. He still gets paid. 9 There's -- there really, Judge, when you look at this, 10 is probably very much of a similarity to the type of 11 pleadings sometimes in federal court that you see, a 12 sham pleading with -- with all due respect, to try to 13 get jurisdiction or get around something. That clearly 14 is what this appears to be, yet it doesn't successfully 15 save it from the forum selection clause. 16 Okay. When you look at common sense 17 examination of the substance of the claims, Judge, here 18 what you're going to have to ask is, what are they 19 suing Oklahoma State and this Athletic Director for? 20 Committing a tort. What tort? Sending letters that 21 are required under the very contract that has the forum 22 selection clause. That implicates the clause. The 23 case law says that implicates the clause. 24 Secondly, in addition to suing these -- 25 the entities and -- and the person for doing what the 17

1 contract requires them to do, it also implicates an 2 affirmative defense that my clients have. My clients 3 have affirmative defenses of justification and 4 privilege because if, in fact, in good faith, they were 5 exercising their rights under the contract, even if 6 there's a disagreement on whether the safe harbor issue 7 applies, then that also implicates the mandatory forum 8 selection clause. 9 And there's three cases for you, Judge, 10 in your notebook that have that rule, the affirmative 11 defense implicates the contract rule, Tab 5, Tab 6, and 12 Tab 7. It's the In re Counsel Financial Services, the 13 Excentus and Aerus case, which I've highlighted the 14 pertinent language for Your Honor and also provided a 15 copy to counsel. Those cases, we believe, are right on 16 point. If you have an affirmative defense that 17 implicates the contract, and the contract has the forum 18 selection clause, then it makes perfect common sense 19 that you're enabled to get the benefit of the clause, 20 particularly when the individual signed it seven times. 21 Next, Judge, there would be an exception 22 perhaps in the case if Mr. Wickline could avail himself 23 to any of the four ways to bust a forum selection 24 clause, but he hasn't pled or proved those. And I 25 don't believe has forwarded an argument that somehow 18

1 there's an exception that the clause should not be 2 enforced, either through fraud in the inducement, 3 material unfairness, et cetera. 4 So it really does boil down to the issue 5 of, when you look at the language, you look at the 6 claims pled, the interpretation of the contract there, 7 Judge, does it apply? The last issue is, can 8 Mr. Holder invoke the forum selection clause? He 9 certainly can. He's a signatory to the agreement. 10 He's an actual signatory to it. And even if he wasn't, 11 they've pled an inextricable intertwined nature of a 12 tort here. Therefore, under that case law, he also 13 deserves the benefit of the forum selection clause. 14 So, Judge, when you look at what the law 15 is, in this instance, the intent of the parties, what 16 Mr. Wickline agreed to, the fact that the suit was 17 filed first in Oklahoma, that it's proceeding, and the 18 nature of the claims he has made here in Texas, even if 19 he tries to artfully plead a tortious interference, it 20 shouldn't succeed. The forum selection clause should 21 be enforced, and this case should be dismissed without 22 prejudice so he can do it up in Oklahoma. 23 Now, there's an alternative argument, 24 too, Judge. If for some reason you would disagree with 25 that, which we hope doesn't happen, but if you do, 19

1 there are cases that say the principles of comity apply 2 here, and the first-filed rule should be applied. 3 Now, Judge, I concede to you that this is 4 within your discretion. This is a discretionary 5 matter, but there's a lot of urging by the Texas 6 Supreme Court and other pertinent cases that say you 7 really ought to honor the fact that the case was filed 8 first in Oklahoma and defer to that, for really three 9 main reasons. 10 One, Judge, is, Mr. Wickline himself has 11 conceded in Oklahoma in his pleadings up there that 12 this case in Texas is really the same case. I have a 13 blurb for you that's in your packet, and we put it in 14 the brief as well, where he basically says to the Court 15 up there, Why don't you transfer this down or let it go 16 down to Travis County where the same issues in this 17 case are pending? Okay. 18 So we believe Mr. Wickline has 19 admitted -- and, of course, he has different counsel in 20 Oklahoma than -- than Mr. Beck, but, nonetheless, I -- 21 I gave you a certified copy of it, and I think that 22 speaks volumes. All right? 23 Second, they say, Well, Judge, you 24 can't -- you shouldn't stay or dismiss this case based 25 on comity because it's not the same parties or not the 20

1 same claims. Well, Judge, what the case law says is, 2 it doesn't have to be a specific identity of parties; 3 otherwise, you could just defeat a first-filed rule by 4 adding a party in like they have, which is really just 5 a sham pleading anyway. Mind you, I haven't seen a 6 single case that says it's a tort, much less even 7 jurisdiction, to send a demand letter that's required 8 under a contract. 9 So, Judge, we believe the law -- and if 10 you look at the In re State Farm case that we have 11 cited for you, I believe it's 11 and in 12, are the two 12 tabs. The law says, Look, ask the question, can the 13 parties obtain all the relief in the first-filed suit 14 that they would be entitled to do down here in Texas? 15 And the answer is yes, they certainly can. 16 And, third, Judge, Wickline says, Well, I 17 have a dec action pending here. That's different 18 somehow, and I'm using a dec action so it's not the 19 same identity of party or the same identity as claims. 20 Judge, there's two cases, 9 and 10 in your packet, BP 21 Oil Supply Company and Porta-Kamp that say, you know 22 what, you can't avoid the first-filed rule by filing a 23 dec action in Texas after the case has already been 24 filed in another state. And, in fact, in those cases, 25 it -- the dismissal was either upheld or mandated by 21

1 the Court of Appeals. 2 Now, I also included in the very end of 3 the packet for you, Judge, just as sort of to be 4 instructive, a couple of state cases that have to do 5 with pleas to the -- or a special appearance based on 6 allegations that demand letters were somehow 7 actionable. And in those cases, Judge, not only did 8 they find they weren't torts, but they weren't even 9 enough for sufficient contacts to be a plea -- a plea 10 to the jurisdiction and -- or to sustain a -- overcome 11 a special appearance. So, Judge, we think that you can 12 look behind the pleadings and apply common sense 13 application when it comes to the rules of comity. 14 Now, the final thing, Judge, that's 15 instructive is, the cause of action against Mr. Holder 16 in -- in his capacity as Athletic Director, is not even 17 actionable under Oklahoma law. And we, again, think 18 you can look to that, as -- when you're looking at the 19 common sense interpretation, Oklahoma law says, under 20 the Tort Claims Act equivalent, that you have to sue -- 21 if you're suing somebody in their capacity as an 22 employee, then that suit is barred. You have to sue 23 the entity, the governmental entity, not the 24 individual. So, again, Judge, that shows here that it 25 shouldn't and can't be a basis to sustain this. 22

1 So it's for those reasons we ask for the 2 forum selection clause to be enforced, this to be 3 dismissed, or alternatively, this to be dismissed based 4 on comity. 5 THE COURT: All right. Thank you. 6 ARGUMENT BY MR. BECK 7 MR. BECK: May it please the Court, Your 8 Honor. David Beck for plaintiff, Mr. Wickline, 9 respondent to the motion. We're not talking about the 10 merits of this underlying dispute. The Court's been 11 given certain documents. There are other documents 12 that we could give the Court that -- that bear upon the 13 merits of this case. For example, one of the documents 14 not submitted to you is a May 6, 2014 document letter 15 from the representative of Oklahoma State accusing not 16 only my client, but the University of Texas, of giving 17 him a misleading title of offensive coordinator when he 18 was not the offensive coordinator. And I will 19 represent to the Court, his contract expressly says 20 that he is the offensive coordinator at the University 21 of Texas. This letter goes on to say that 22 statements -- they put are assuredly untrue. They talk 23 about contriving job titles and disingenuous comments 24 and so on and so forth. 25 Coach Wickline is being sued up in 23

1 Oklahoma for three times what his annual salary was. 2 His annual salary was $200,000. They're trying to get 3 from him, as liquidated damages, three times that 4 amount. But we're not talking about the merits in the 5 case before Your Honor. We're talking about two very 6 narrow issues. 7 Counsel is absolutely correct. We are 8 talking about a forum selection provision. That's the 9 sole basis of their request that you somehow transfer 10 this case up to Oklahoma -- at Stillwater where 11 Oklahoma State is located. 12 Now, this provision, this contract, was 13 drafted by Oklahoma State. They knew exactly what they 14 wanted in this contract. They're the ones that came up 15 with this forum selection provision. And if you look 16 at this forum selection provision, Your Honor, you will 17 see that it is a very narrow provision. It was 18 obviously designed and intended to allow Oklahoma 19 State, when it wanted to enforce its contracts, to sue 20 in its hometown. That is the obvious import of this 21 forum selection provision. But it also specifically 22 talks about any action to enforce the contract. 23 Coach Wickline is not trying to enforce 24 anything in the suit before Your Honor. In fact, he 25 doesn't think that this liquidation provision is valid, 24

1 but the fact of the matter is, that he's not trying to 2 enforce anything. What he's trying to do is 3 essentially two things: One is to ask Your Honor, 4 under the declaratory judgment statute, to tell us what 5 the meaning is of one provision in his contract. 6 Now, the fact of the matter is -- and 7 I'll get into this in just a moment -- regardless of 8 how you interpret that provision of the contract, 9 that's not going to end this dispute. There will not 10 be an order from you -- and, for example, if you rule 11 in favor of Oklahoma State, you are not going to be 12 entering an order to say, Coach Wickline, write them a 13 check. On the other hand, if you rule in favor of 14 Coach Wickline, that's not going to end the litigation 15 either. So the litigation in -- before Your Honor is 16 doing to continue regardless of what happens up in 17 Oklahoma. 18 So one of the essential and underlying 19 basis for their claim is that somehow this action up in 20 Oklahoma is going to dispose of everything. And I 21 respectfully disagree with that and will show the Court 22 in just a moment that, under the applicable case law in 23 Texas, that is not correct. 24 Now, the -- that's essentially what 25 they're arguing in -- in terms of this forum selection 25

1 provision. So our provision simply stated is, number 2 one, it doesn't apply by its very terms because it 3 applies only in an effort to enforce the contract. And 4 you can look in vain to the plaintiff's original 5 petition in this case before you, and you will not see 6 any provision or any request for relief that somehow 7 Coach Wickline wants you to enforce anything. It is 8 simply asking for declaratory judgment. 9 Now, we also have before you a second 10 cause of action, which is a tortious interference 11 claim. Obviously, that is a tort action that is 12 totally separate and apart from the declaratory 13 judgment action. And as I said, even if somehow that 14 Oklahoma case goes forward and even assuming, for the 15 sake of discussion, that Coach Wickline loses up 16 there -- we don't think he will, but assuming that -- 17 that he does, we still have our tortious interference 18 claim because our provision -- our position is that 19 even if you have a valid contract and even if you have, 20 under a tortious interference claim, an arguable 21 defense of justification or privilege, that doesn't 22 mean that you can, with impunity, say anything or do 23 anything you want with respect to the employee and 24 with -- certainly with respect to the employee's 25 employer, which would be, in this case, the University 26

1 of Texas. 2 The Supreme Court of Texas in the 3 Prudential case -- and I've given Your Honor a copy of 4 that case. 5 THE COURT: Yes. 6 MR. BECK: -- was in -- clearly involved 7 a situation where Pruden- -- the contract at issue was 8 valid. There's no question that Prudential had certain 9 rights with respect to its policies and with respect to 10 its -- with respect to the people it was doing business 11 with. The people that held policies, its 12 policyholders. 13 But the court goes on to say -- and I'm 14 want to quote this so that I don't misrepresent it in 15 any way. And the Supreme Court of Texas says -- and I 16 quote -- "But that does not mean that Prudential could 17 say or do anything under the guise of exercising a 18 privilege. A party may not exercise an otherwise 19 legitimate privilege by resorting to illegal or 20 tortious means. Thus, if the plaintiff pleads and 21 proves methods of interference that are tortious in 22 themselves, then the issue of privilege or 23 justification never arises," end of quote. 24 Again, this is not the merits. But we 25 are pointing out that their efforts in our tortious 27

1 interference case to inject the contract by way of this 2 justification and privilege defense still doesn't get 3 them where they need to go, because under the 4 applicable law, and specifically the Texas Supreme 5 Court, they still have to account for what they've 6 done. They still have to account for some of these 7 statements that they made publicly. They still have to 8 account for these letters that they have written, not 9 just to my client, but which the University of Texas 10 has become aware of. 11 And so we intend at the proper time, 12 again subject to rulings that you make, to prove a 13 tortious interference case and to show that -- that 14 Mike Holder and -- and also Oklahoma State University 15 tortiously interfered with Coach Wickline's contract; 16 not his contract with Oklahoma State, but his contract 17 with the University of Texas. That's the contract 18 we're claiming was tortiously interfered with. 19 So that is our position with respect to 20 the very narrow issue of whether or not this forum 21 selection provision, which is limited to enforcing the 22 OSU contract, somehow justifies Your Honor in 23 dismissing our case entirely on the basis that it gets 24 transferred to Oklahoma. 25 Let me turn very briefly to their comity 28

1 argument. On their motion to stay, they're basically 2 arguing that the case in Oklahoma was first filed. And 3 they're right. This case was filed three days later. 4 This case would have been filed whether or not they 5 filed that case a week, two weeks, or whatever, because 6 there's a difference in facts and -- and a different 7 basis for our cause of action. 8 So when you look at the basis of their 9 motion to stay, we have to look at the applicable law. 10 And -- and -- for example, in the State Farm case, 11 which is a Tyler Court of Appeals case, 2006, it 12 clearly sets forth what the general rule is, Your 13 Honor. And it says, To obtain a stay of the second 14 filed action -- which is the one before you -- the 15 movant has the obligation to show that both suits, 16 number one, involve the same cause of action; number 17 two, involve the same subject matter; number three, 18 involve the same issues; and number four, involve the 19 same parties. 20 Well, we would submit, as a matter of 21 law, that is not correct. We've got different causes 22 of action because Oklahoma -- Oklahoma State is arguing 23 breach of contract up there. Down in here we're 24 talking about a declaratory judgment action under our 25 statute and a tortious interference claim. 29

1 So you don't have the same causes of 2 action. You don't have the same subject matter because 3 the causes of action are different. You don't have the 4 same issues because the causes of action are different. 5 And you don't even have the same parties in this case 6 because Mr. Holder is not a party up in Oklahoma. He 7 is a party down here, for reasons that we've asserted 8 in our -- in our petition. 9 And the relief requested is different. 10 In Oklahoma, they're requesting that -- that -- that 11 Coach Wickline pay three times what his contract for 12 Oklahoma State called for; whereas down here, we're -- 13 we're basically suing for damages solely on the basis, 14 at this time, of this tortious interference claim. And 15 then we're asking for declaratory judgment. So 16 regardless of what happens up there, Your Honor is 17 still going to have this case down here. 18 So -- now, in the DJ action, as I've 19 said, even if that case goes forward up there, this 20 case will not be over, for the reasons that I've talked 21 about, and specifically the Prudential case. So at 22 some point we're going to have to -- to fight over what 23 they've done and how they did it. 24 A person may or may not have a -- an 25 arguable legal right, Your Honor, but that doesn't mean 30

1 you can assert it any way you want. Your Honor may be 2 familiar with a lot of these collection agency cases 3 where somebody has a contract with some store. They 4 haven't paid their bill. The collection agency goes 5 after the person. But that doesn't mean that they can 6 do some of the things that some of them have been 7 accused of and -- and supposedly did. You -- it's the 8 way you do things that are just as important as whether 9 you have an underlying arguable basis for what you do. 10 So, again, you've got two narrow issues. 11 One is what we've asserted, an action to enforce the 12 Oklahoma State contract, and we say it is not, for the 13 reasons I've already explained and is in our papers. 14 And then the second reason is that the -- 15 the tortious interference claim and the motion to stay, 16 again, is a very narrow request, because if you go 17 through the elements of what's required, they can't 18 meet that burden. 19 So, Your Honor, we would respectfully 20 request that both of these cases ought to go forward in 21 their normal course because it doesn't matter which one 22 comes to judgment first. The other one is going to 23 continue. 24 So for those reasons -- oh, one other 25 thing I'd like to mention, Your Honor. We got -- and 31

1 I'm not fussing with anybody, I want to make it clear. 2 We got a 22-page brief with some exhibits yesterday, 3 and I would like a reasonable opportunity to respond. 4 And I can do that very quickly. And with that, Your 5 Honor, that concludes our comments. 6 THE COURT: You'd have the final word. 7 ARGUMENT BY MR. BREEN 8 MR. BREEN: Thank you, Judge. Brief. 9 Yes, final. A couple of things, Judge. First, it's 10 been raised that somehow there's a materiality to the 11 fact that he's being sued for three times his annual 12 salary, something he agreed to in the contract. I will 13 point out that most honorable collegiate institutions 14 usually pay the buyouts of their coaches when they hire 15 them. And I don't know why that didn't occur here, but 16 it's not material to the forum selection clause. The 17 fact of what he owes and why he agreed to it isn't 18 material at all. 19 Next, we're not asking the Court to 20 transfer the case as was stated. We're asking for the 21 case to be dismissed. Mr. Wickline could make these 22 claims in Oklahoma where he agreed to make them and 23 where his lawsuit -- and where the lawsuit against him 24 is proceeding. So that's just incorrect. 25 THE COURT: I don't know that I could 32

1 transfer a case. 2 MR. BREEN: I don't -- you can't, Judge. 3 THE COURT: All right. 4 MR. BREEN: You can't at all. But he 5 certainly could make these claims in Oklahoma. Of 6 course, he's going to have to do it pursuant to the 7 applicable laws up there. 8 There was an argument made under the 9 forum -- forum selection clause that we're arguing that 10 the Oklahoma case will dispose of everything under the 11 forum selection clause. That's not correct. I'm not 12 making that argument. What I'm making the argument of, 13 and which wasn't addressed at all by counsel in this 14 case, is -- but what is proved unequivocally by his 15 Prudential case is, Prudential says that an affirmative 16 defense to tortious interference is, you had a 17 contractual right to do it. 18 Well, guess what, Judge, if the contract 19 provides the basis for an affirmative defense, I've 20 given you three cases that say, that means it's within 21 the forum selection clause. That's Tab 5, 6, and 7. 22 It's not addressed in any way because they're right on 23 point, and Prudential shows you, if the contract is at 24 issue in the affirmative defense, there's where it 25 goes, is to the forum selection clause. 33

1 And then, Judge, as to the comity, they 2 say this is a different case. I'd just ask Your Honor 3 to look at Mr. Wickline's pleadings. That's not what 4 he told the Oklahoma court. He told them the truth. 5 It's essentially the same case. 6 You can try to disguise it. You can try 7 to plead around it. But at the end of the day, Judge, 8 the fact that they assert, Well, we would have filed 9 this anyway, is belied by the fact that they had a copy 10 of the prospective lawsuit for six months. They didn't 11 file any lawsuit. They didn't file this one until 12 three days after they were sued -- he was sued in 13 Oklahoma. And it's clear why. 14 For some reason he doesn't believe he can 15 get a fair trial in the venue that he selected and 16 lived in for all those years. That's what they 17 expressly told the Judge. That's what they are 18 essentially telling you here. And that's not a basis 19 to not enforce the principles of comity. So, Judge, 20 for those reasons, we'd ask for you to dismiss this 21 case. 22 TAKEN UNDER ADVISEMENT 23 THE COURT: Okay. Well, I am going to 24 take it under advisement. If you -- let's see. You 25 want a chance to read what was filed yesterday, it 34

1 sounds like -- 2 MR. BECK: Right. 3 THE COURT: -- and an opportunity to 4 respond? Is Monday... 5 MR. BECK: We can do it by Monday, Your 6 Honor. 7 THE COURT: Okay. 8 MR. BECK: Close of business? 9 THE COURT: Yes, close of business on 10 Monday. 11 MR. BECK: Yes, we can. 12 THE COURT: And is there any -- am I 13 under any deadline? Am I under -- because I probably 14 would not -- since that's coming on Monday, my guess is 15 I wouldn't get something out to you until after the 16 first of the year, but I -- but I want to make sure I'm 17 not under any deadline. 18 MR. BREEN: No, Judge, you're not under 19 any deadline. 20 MR. BECK: And I agree with that. 21 THE COURT: Okay. Thank you. 22 MR. BREEN: Although our Christmas wish 23 list is quite large. 24 THE COURT: Duly noted. 25 MR. BECK: No Christmas Eve orders, 35

1 please. 2 THE COURT: All right. Then we can go 3 off the record at this time. 4 (Court adjourned.) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 TAB E Plaintiff’s First Amended Original Petition (CR 187-94) 12/23/20141 :31 :16 PM Amalia Rodriguez-Mendoza District Clerk CAUSE NO. D-1-GN-14-004391 Travis County D-1-GN-14-004391 GREGORY JOE WICKLJNE, § lN THE DISTRICT COURT OF § Plaintiff, § v. § § THE BOARD OF REGENTS FOR THE § OKLAHOMAAGRICULTURALAND § MECHANICAL COLLEGES, acting for and on § TRAVIS COUNTY, TEXAS behalf of Oklahoma State University, and JAMES § MICHAEL HOLDER, in bis individual capacity § and in his capacity as Vice President for Athletic § Programs and Director of Intercollegiate Athletics § for Oklahoma State University § § Defendants, § 98TH JUDICIAL DISTRICT §

PLAINTIFF'S FIRST AMENDED ORIGINAL PETITION

TO THE HONORABLE JUDGE OF THIS COURT:

COMES NOW Gregory Joe Wickline ("Coach Wickline") and hereby files this First

Amended Original Petition against The Board of Regents for the Oklahoma Agricultural and

Mechanical CoJJeges, acting for and on behalf of Oklahoma State University ("OSU") and

James Michael Holder ("Holder") (collectively, the "Defendants"), and would show the

Honorable Court the following:

I. DISCOVERY LEVEL

l. Discovery in this case is intended to be conducted according to a Level lll

discovery control plan under Rule 190.4 of the Texas Rules of Civil Procedure.

II. THE PARTIES

2. Plaintiff Wickline is an individual residing in Travis County, Texas.

3. Upon information and belief, Defendant OSU is a publi.c educational institution

organized under the constitution and laws of the State of Oklahoma, which conducts business in

the State of Texas, but does not maintain a resident agent for service of process in the State of

187 Texas. Pursuant to Section 17 .044 of the Texas Civil Practice & Remedies Code, OSU may be

served with process as follows:

Oklahoma State University c/o Office of the Secretary of State Statutory Documents Section - Citations Uni.t P.O. Box 12079 Austin, Texas 78711-2079

The Secretary of State is requested to forward the citation to Defendant Oklahoma State

University, attention General Counsel Steve Stephens, at its principal place of business:

Oklahoma State University c/o Steve Stephens, General Counsel 5th Floor - Student Union Stillwater, OK 74078-7044

4. Upon information and beliet: Defendant Holder is an individual residing in

Oklahoma and the Vice President for Athletic Programs and Director of Intercollegiate Athletics

for OSU, who conducts business in the State of Texas, but does not maintain a resident agent for

service of process in the State of Texas. Pursuant to Section 17.044 of the Texas Civil Practice

& Remedies Code, Holder may be served with process as follows:

Mike Holder c/o Office of the Secretary of State Statutory Documents Section - Citations Unit P.O. Box 12079 Austin, Texas 78711-2079

The Secretary of State is requested to fotward the citation to Defendant Holder at his pri.ncipal

place of business:

Mike Holder 202 Athletics Center Oklahoma State University Stillwater, OK 74078

188 Ill. JURISDJCTION AND VENUE

5. This Court has personal jurisdiction over OSU, which purposefully availed itself

of the privileges and benefits of conducting business in Texas. Defendants' wrongful acts that

form the basis of Coach Wickline's claims in this petition occurred in Travis County, Texas.

6. The damages sought in this cause of action are within the minimum jurisdictional

limits of this Court.

7. Venue is proper in Travis County, Texas, because all or substantially all of the

events giving rise to Coach Wickline's claims occurred in Travis County. TEX. Clv. PRAC. &

REM. CODE § 15.002(1). In the unlikely event Section 15.002(1) is not applicable, venue is

proper in Travis County because Coach Wickline resides in Travis County and did so at the time

of the accrual of his causes of action against Defendants.

IV. FACTS

8. On or around January 2014, Coach Wickline was offered and accepted the

position of Offensive Coordinator for the University of Texas at Austin's ("UT") football team.

UT is an NCAA Division I-A institution. He and UT entered into an employment contract shortly

thereafter (the "UT Contract").

9. As the Offensive Coordinator, part of Coach Wickline's duties is to call plays for

UT's offense. Prior to accepting his position at UT, he was the Offensive Line Coach for OSU's

football team.

10. However, Coach Wickline's employment contract with OSU provides that OSU

will release Coach Wickline from the OSU Contract and any liability for liquidated damages, or

otherwise, if Coach Wickline is offered and accepts a position as the "Offensive Coordinator

(with play calling duties) at another NCAA Division I-A institution." UT is such an institution

189 and Coach Wickline continues to be UT's Offensive Coordinator and continues to have "play

calling duties."

11. Defendants, however, had no intention of letting their star 0 ffensi ve Line Coach

go to UT. Indeed, shortly before UT offered Coach Wickline the Offensive Coordinator position,

Defendant Holder told Coach Wickline that he would never release him from the OSU Contract

because he was "the best offensive line coach in the country."

12. Despite knowing that OSU was required to release Coach Wickline from the OSU

Contract and any obligation to pay liquidated or other damages, Defendants immediately began

harassing and intimidating Coach Wickline with false allegations for the purpose of interfering

with his ongoing employment with UT and his UT Contract.

13. On March 24, 2014, Holder sent a letter to Coach Wickline's UT office

demanding that he immediately pay $593,478 in liquidated damages to OSU-an amount that

exceeds Coach Wick.line's current yearly salary as UT's Offensive Coordinator. In that letter,

Holder falsely claimed that Coach Wickline was not hired as UT's Offensive Coordinator and did

not have "play calling duties."

14. Less than a month later, OSU sent another letter to Coach Wickline's UT office-

this time attaching a draft lawsuit petition against Coach Wickline for the same amount plus

interest, attorney's fees, and costs.

15. In response, Coach Wickline explained to OSU what it already knew: he was

hired by UT as the Offensive Coordinator and that he, in fact, did have play calli_ng duties.

16. On May 6, 2014, OSU sent yet another letter to Coach Wickline's UT office. OSU

not only claimed that Coach Wickline was lying about his position and duties at UT, but also

alleged that UT was "attempting to aid" Coach Wickline in "avoiding the tem1s" of the OSU

Contract by providing Coach Wickline with the "misleading title of Offensive Coordinator."

190 17. On information and belief, OSU has filed a lawsuit in Oklahoma against Coach

Wickline for liquidated and other damages. The lawsuit is baseless and its sole purpose is to

interfere with Coach Wick.line's ongoing employment relationship with UT and the UT Contract.

V. CAUSES OF ACTION

TORTIOUS INTERFERENCE WITH AN EXISTING CONTRACT

AGAINST BOTH DEFENDANTS

18. Coach Wickline restates and incorporates the allegations set forth in Paragraphs

1- 16 as set forth fully herein.

19. As described above, through their campaign of harrassment, threats, and

intimidation, Defendants have willfully and intentionally interfered with Coach Wickline's valid

employment contract with UT.

20. As a direct and proximate cause of Defendants' tortious interference, Coach

Wickline has suffered injury and mental anguish. At this time, Coach Wickline seeks damages in

excess of $100,000 but not more than $200,000. See T EX. R. Crv. P. 47(c)(3).

DECLARATORY JUDGMENT ACTION AGAINST OSU

21. Coach Wickline restates and incorporates the allegations set forth in Paragraphs

1-20 as set forth fully herein.

22. OSU contends the contractual phrase "Offensive Coordinator (with play caUing

duties)" means something other than the plain and ordinary meaning of those words. According

to Coach Wickline 's contract with UT, he is UT's Offensive Coordinator and he has play calling

duties. Pursuant to Chapter 37 of the Texas Civil Practice & Remedies Code, Coach Wickline

requests a declaratory judgment construing this phrase according to its plain and ordinary

meaning, consistent with the parties' intent, and declaring the rights and obligations of the parties

accordingly.

191 23. Coach Wickline also requests an award of reasonable and necessary attorney's

fees and costs, pursuant to Texas Civil Practice & Remedies Code§ 37.009.

VJ. JURY DEMAND

24. Pursuant to Rules 216 of the Texas Rules of Civil Procedure, Coach Wickline

hereby requests a jury trial and tenders its fee in support of that request. Coach Wickline requests

that this cause be placed on the Court's Jury Docket.

Vil . PRAYER

25. WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully prays that

Defendants be cited to appear and answer herein, and that upon a final hearing of the cause,

judgment be entered for Coach Wickline against Defendants for damages in a reasonable amount

within the jurisdictional limits of the Court, and declaring the parties' rights and obligations

under the OSU Contract, together with pre-judgment interest (from the date of the injury through

the date of judgment, at the maximum rate allowed by law), post-judgment interest at the legal

rate, attorney's fees, costs of court, and such other and further relief to which Coach Wickline

may be entitled at law or in equity.

Respectfully submitted,

BECK REDDEN, LLP

By: Isl David J. Beck David J. Beck State Bar No. 00000070 1221 McKinney Street, Suite 4500 Houston, Texas 77010 Tel: 713-951-3700 Fax: 713-951-3720 Email: dbeck@beckredden .corn ggannaway@beckreddcn.com

Christopher R. Cowan State Bar No. 24084975

192 515 Congress Avenue, Suite 1750 Austin, Texas 78701 Tel: 512-708-1000 Fax: 512-708-1002 Email: ccowan@beckredden.com

Karson K. Thompson State Bar No. 24083966 515 Congress Avenue, Suite 1750 Austin, Texas 7870 I Tel: 512-708-1000 Fax: 512-708-1002 Email: kthompson@beckredden.com

ATTORNEYS FOR PLAINTIFF GREGORY JOE WJCKLJNE

193 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was served on December 23, 2014 on the following counsel ofrecord by email:

HOWRY, BREEN & HERMAN, L.L.P. Sean E. Breen 1900 Pearl Street Austin, Texas 78705-5408 Email: sbreen@howrybrcen.com

COUNSEL OF RECORD FOR DEJ\' ENDANTS

Isl David J. Beck David J. Beck