# 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 > Texas Court of Appeals, 3rd District (Austin) · March 12, 2015 URL: https://www.frixlaw.com/law-library/cases/4052183 ## Case - **Court:** Texas Court of Appeals, 3rd District (Austin) - **Decided:** March 12, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4052183 ## Opinion text 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~ef 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. [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4052183. Public record. Not legal advice.