                                                                                              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,

                                    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


           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<l   on Mandatory Forum-Selection Clause should be and

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


                                                1




                                                                                               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


                                               2




                                                                                              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.


                                          3




                                                                                         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


                                                4




                                                                                                    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.


                                                 5




                                                                                                  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,


                                          6




                                                                                          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


                                                    7




                                                                                                           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


                                              8




                                                                                             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


                                                     9




                                                                                                       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




                                        10




                                                                                   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




                                                                     - l -


                                                                                                                                                      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

                                                                        - ll -


                                                                                                                                                          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




                                                                       - ll1 -


                                                                                                                                                        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.

                                                   - 1-

                                                                                                               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).

                                                          - 2-

                                                                                                                         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.


                                                      -3-

                                                                                                              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).

                                                     -4-

                                                                                                         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).

                                                     -5-

                                                                                                     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.

                                                            -6-

                                                                                                         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).

                                                                   -7-

                                                                                                                   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.

                                                             -8-

                                                                                                                      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).

                                                           -9-

                                                                                                                        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).


                                                     - 10 -

                                                                                                                   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).

                                                           - 11 -

                                                                                                                        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.

                                                         - 12 -

                                                                                                                         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).

                                                              - 13 -

                                                                                                                  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.").

                                                         - 14 -

                                                                                                                            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.


                                                     - 15 -

                                                                                                                 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

dismissed.

         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 .




                                                           OKLAHOMA STATE UNIVERSITY


                                                           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.


                                                  - 16 -

                                                                                                      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.


                                                      - 17 -

                                                                                                                      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.

                                                        - 18 -

                                                                                                                 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 .

                                                      - 19 -

                                                                                                                 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.

                                                     - 20 -

                                                                                                               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.

                                                     - 21 -

                                                                                                            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




                                               -22 -

                                                                                                       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




                                               - 23 -

                                                                                                      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




                                                 2

                                                                                                    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




                                                 3

                                                                                                      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."


                                                 4

                                                                                                     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.


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       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


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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




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                               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




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