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

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 p

This text is long and has been trimmed here. Open the source document for the complete record.