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 ( 2015 )


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  •                                                                                               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 Sel. Cas. 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 26
    6.
    57 See 
    laibe, 307 S.W.3d at 317
    .
    - 15 -
    93
    Because Mr. Wickline has not and cannot meet his " heavy burden" to show the Contract's
    mandatory forum-selection clause should not be enforced, his claims in this lawsuit should be
    dismissed.
    4.         Defendant Mike Holder is entitled to invoke the Contract's mandatory forum-
    selection clause.
    To the extent Mr. Wickline attempts to claim Mr. Holder is not entitled to invoke the
    Contract's forwn-selection clause, this is incorrect. Mr. Holder is a signatory to the Contract and
    both contractual amendments. An image of the Contract's signature page is below:
    and on the same forms as are utilized by t:he University for other Athletic
    Department and University employees.
    ist day of January, 2 009 .
    OKLAHOMA STATE UNIVERSITY
    By:J!._..:._j````r:::..t.``;.2:1``
    Mik gold r, Vice President for                            ·   v . Burns Hargis
    Athletic Programs and Director                                President
    of Intercollegiate Athletics
    Further, Mr. Holder's approval through his signature, as director of intercollegiate athletics, was
    explicitly required by Section 15 before the Contract became effective. 58 Mr. Holder's status as a
    signatory to the Contract means he may enforce any of its provisions, including the mandatory
    forum-selection clause.
    58 Ex. l (Contract), at 4i! I I.
    - 16 -
    94
    Any suggestion by Mr. Wickline that Mr. Holder may not invoke the forum-selection
    clause because he is being sued in his individual capacity would also be incorrect.                 Even if Mr.
    Holder is considered a non-signatory to the forwn-selection clause-which he is not-Texas
    courts have repeatedly held a non-signatory may enforce the clause against a signatory-plaintiff if
    the plaintiffs claims assert "substantially interdependent and conceited misconduct by both
    nonsignatories and one or more signatories." 59 Here, Mr. Wickline alleges in his original petition
    that "Defendants immediately began harassing and intimidating Coach Wickline with false
    allegations for the purpose of interfering with his ongoing employment with UT and his UT
    Contract. " 60 T hose factual allegations constitute interdependent and concerted misconduct by a
    signatory (OSU) and an alleged non-signatory (Mr. Holder).
    For both of these reasons, Mr. Holder is entitled to enforce the Contract's forum-selection
    clause with the same force and effect as OSU.
    B.        Comity requires this Court to defer to the first-filed Oklahoma lawsuit.
    As discussed above, OSU filed suit against Mr. Wickline in the District Court of Payne
    County, Oklahoma, on October 17, 2014. This lawsuit was fi led three days later, on October 20,
    2014. Even if Mr. Wickline's claims are not covered by the Contract' s mandato1y forum-selection
    clause-which they are- this lawsuit should be stayed in deference to the first-filed suit in
    Oklahoma for three reasons: (1) Mr. Wickline himself has admitted the lawsuits concern the same
    issues; (2) Texas trial courts are "strongly urged" to stay or dismiss second-filed actions; and (3)
    Texas discourages the use of declaratory relief as a forum-shopping device.
    59
    In re Cornerstone Healthcare Holding Grp., Inc. , 
    348 S.W.3d 538
    , 544-45 (Tex. App.- Dallas 201 1, no pet.); see
    also Phoenix Network 
    Techs., 177 S.W.3d at 620
    (same).
    60 See Orig. pet. at , l 2.
    - 17 -
    95
    Texas courts, as a matter of comity, stay their own proceedings if a suit involving the same
    subject matter is already pending in another state. 61 In general, the two suits must involve the same
    cause of action, concern the same           su~ject   matter, involve the same issues, and seek the same
    relief. 62 Though a stay is not automatically available as a matter of r1ght, the Texas trial court in
    which the second action is filed is "strongly urge[ d]" to stay its proceedings. 63
    First, and most importantly, Mr. Wickline himself conceded the lawsuits address the same
    subject matter. In his initial pleading in the Oklahoma lawsuit, Mr. Wickline made the following
    statement: 64
    There are alternatives. One of them may be Travis County, Texas. Coach Wickline
    has filed a lawsuit against OSU in Travis County, Texas, requesting, among other things,
    a declaratory judgment concerning the meaning of "play calling duties" in the Employment
    Contract -    the same issues in this case. Travis County is a much more just and proper
    forum for both Parties to argue their respective cases. The Defendant lives in Austin,
    Mr. Wickline's recent denial that the two lawsuits concern the same issues is belied by his own
    filings.
    Second, even if Mr. Wickline has not already conceded the lawsuits concern the same
    issues-which he has- the parties' pleadings bear that out. The Oklahoma lawsuit is for breach
    of contract, and was filed by OSU against Mr. Wickline. The Texas lawsuit, filed by Mr. Wickline,
    seeks the same declaratory relief as the Oklahoma lawsuit's breach-of-contract claim, and also
    61
    See Crown Leasing Cmp. v. Sims, 
    92 S.W.3d 924
    , 927 (Tex. App.-Texarkana 2002, no pet.) (citing Space
    Master Int'/, Inc. v. Porta-Kamp Mfg. Co., 
    794 S.W.2d 944
    , 946 (Tex. App.-Houston [1st Dist.] 1990, no writ)).
    62
    In re State Farm Mut. Auto. Ins. Co., 
    192 S.W.3d 897
    , 90 J (Tex. App.-Tyler 2006, orig. proceeding).
    63
    State 
    Farm, 192 S.W.3d at 901
    .
    64
    See Ex. 9 (Mr. Wickline's Oklahoma special appearance), at 10.
    - 18 -
    96
    includes a claim for tortious interference with existing contractual relations against OSU and Mr.
    Holder. Mr. Wickline attempts to avoid the stay and argue the parties and causes of action in the
    Oklahoma lawsuit are different than the Texas lawsuit, citing Ashton Grove L. C. v. Jackson Walker
    L.L.P., a case involving an Oklahoma legal-malpractice suit and a Texas breach-of-contract suit
    where the Dallas court of appeals affirmed a denia1 of a motion to stay. 65 In Ashton Grove, the
    court of appeals upheld the denial of a motion to stay, finding the claims asserted and relief sought
    in each case were dissimilar. 66
    The lack of identity as to parties and claims in this case, however, is not dispositive of
    Defendants' motion to stay: both suits address the same issue. In In re State Farm Mutual
    Automobile Insurance Co., the Tyler cou1t of appeals described a test to employ if the similarity
    of two pending lawsuits is in doubt: can the parties obtain all the relief in the first-ft led suit that
    they would be entitled to obtain in the second suit?67 Here, there is only one issue in dispute
    between the parties, it will necessarily be decided in both suits, and it will resolve all claims and
    defenses asserted by all parties:
    Does Mr. Wickline's current position as an assistant football coach at UT qualify
    as an "Offensive Coordinator (with play calling duties)" within the meaning of the
    Contract?
    If tJ1e answer is yes, Mr. Wickline has not breached the Contrnct and his tortious interference
    claims could be litigated. If the answer is no, Mr. Wickline breached the Contract and there was
    no totiious interference as a matter of law. In either case, all claims and all defenses could and
    would be settled in the Oklahoma lawsuit, where all parties are indisputably subject to jurisdiction
    65
    Ex. l 0 (Mr. Wickline's response to Defendants' motion to dismiss), at 6 (citing Ashton Grove L.C. v. Jackson
    Walker L.L.P. , 
    366 S.W.3d 790
    , 795 (Tex. App.-Dallas 20 12, no pet.)).
    66 Ashton 
    Grove, 366 S.W.3d at 795
    .
    67
    State 
    Farm, 192 S.W.3d at 901
    .
    - 19 -
    97
    and venue is proper. This result is distinguishable from the situation presented in Ashton Grove
    because the Texas breach-of-contract case (whether a legal client paid its bills) could be resolved
    without affecting the merits of the Oklahoma legal-malpractice case.68
    Third, Texas comts are generally averse to entertaining requests for declaratory relief
    where, as here, the subject matter of the declaratory judgment action is already pending in another
    jurisdiction.     That's exactly what happened in In re BP Oil Supply Co. and Space Master
    International, Inc. v. Porta-Kamp Manufacturing Co., which upheld the dismissals of Texas
    declaratory judgment suits because other suits were already pending in foreign jurisdictions
    regarding the same subject matter. 69
    In support of its ruling, the Space Master court noted the Texas Supreme CoUii has held:
    "[A]s a general rule, an action for declaratory judgment will not be entertained if there is pending,
    at the time it is filed, another action or proceeding between the same parties and in which may be
    adjudicated the issues involved in the declaratory action."70 The Space Master opinion ended with
    the following guidance:
    Space Master, in the case at bar, conceded that the suit for declaratory judgment
    involved the same parties and issues as the proceedings pending in the New Jersey
    state couit and in the Massachusetts federal court. Space Master should not be
    allowed to use declaratory relief as a forum-shopping device. 71
    Just as in Space Master, Mr. Wickline is using declaratory relief as a forum-shopping device.
    Instead of confronting the same subject matter in the first-filed OkJahoma lawsuit-after months
    68
    See Ashton 
    Grove, 366 S.W.3d at 795
    .
    69
    In re BP Oil Supply Co., 
    317 S.W.3d 915
    , 921- 22 (Tex. App.- Houston [14th Dist.] 2010, orig. proceeding);
    Space 
    Master, 794 S.W.2d at 945
    .
    70
    Space 
    Master, 794 S.W.2d at 947
    (quoting Tex. Liquor Control Bd. v. Canyon Creek Land Corp., 
    456 S.W.2d 89
    1 (Tex. 1970)).
    71
    Space 
    Master, 794 S.W.2d at 948
    .
    - 20 -
    98
    of requests and warnings from OSU-he ran to the courthouse in Travis County in an attempt to
    obtain what would be a competing interpretation of the Contract. In the words of the Houston
    court of appeals, " [t]he Declaratory Judgment Act was never intended to provide for the piecemeal
    litigation of lawsuits. " 72
    Finally, to the extent Mr. Wickline attempts to minimize the deference due to the first-fi led
    Ok lahoma suit because it was fi led "merely" three days before this lawsuit, Texas courts have
    deferred based on much less. In BP Oil Supply, the Texas lawsuit was filed less than six hours
    after a lawsuit in Delaware, and the Texas cotui's decision to defer was still upheld. 73
    In summary, ~tlr. Wickline admits the Oklahoma lawsuit and this lawsuit concern the same
    issues; that alone is sufficient to invoke the doctrine of comity to stay or dismiss this case. Further,
    under State Farm , this lawsuit should be stayed because Mr. Wickline may obta1n all the relief he
    seeks in the Oklahoma lawsuit. And under BP Oil Supply and Space Master, Texas courts are
    discouraged from rewarding the type oflitigation tactics employed by Mr. Wickline in this lawsuit:
    blatant forum -shopping through the use of declaratory relief For all three of these reasons, this
    lawsuit should be stayed in favor of the first-filed Oklahoma lawsuit.
    IV.   CONCLUSION
    This case does not belong in this Court. It is one to enforce a contract signed in Oklahoma,
    executed by Oklahoma residents, performable in Oklahoma, and with the District Court of Payne
    County, Oklahoma, selected as the exclusive venue for suit as agreed to by the parties. OSU
    attempted for months to secure Mr. Wickline's cooperation, and only after OSU was forced to file
    suit did Mr. Wickline file this second lawsuit, a lawsuit he admits has the same issues.
    72
    Space Master, 794 S .W.2d at 948.
    73
    BP Oil Supply, 3 I7 S.W.3d at 917- 18.
    - 21 -
    99
    For any or all of the reasons enumerated above, OSU and Mr. Holder respectfully request
    an order: (i) dismissing all of Mr. Wickline's claims in this lawsuit without prejudice based on the
    Contract's mandatory forum-selection clause; or, in the alternative, (ii) dismissing or staying this
    lawsuit pending the outcome of the first-filed Oklahoma lawsuit.
    Dated: December 17, 2014                      Respectfully submitted,
    Sean E. Breen
    State Bar No. 00783715
    sbreen@howrybreen.com
    Randy Howry
    State Bar No. 10121690
    rhowry@howrybreen .com
    James Hatchitt
    State Bar No. 24072478
    jhatchi tt@howrybreen.com
    1900 Pearl Street
    Austin, Texas 78705-5408
    Tel. (512) 474-7300
    Fax (512) 474-8557
    Attorneys for Defendants Board ofRegents for the
    Oklahoma Agricultural and Mechanical Colleges,
    acting for and on behalfofOklahoma State
    University, and James Michael Holder
    -22 -
    100
    CERTIFICATE OF SERVICE
    I certify that a true and correct copy of this document was delivered on December 17, 2014, in
    compliance with Rules 21 and 2la of the Texas Rules of Civil Procedure, to the parties listed and
    in the maimer indicated below:
    David J. Beck                                           ../ Electronic service
    dbeck@beckredden.com                                    o In person
    BECK REDDEN,   LLP                                      o Registered mail, return receipt requested
    1221 McKinney Street, Suite 4500                        o Commercia l delivery service
    Houston, Texas 77010                                    o Facsimile
    Tel. (713) 951-3700                                     ../ Electronic mail
    Fax (713) 951-3720
    Clu·istopher R. Cowan
    ccowru1@beckredden.com
    Kru·son K. Thompson
    kthompson@beckredden.com
    BECK REDDEN, LLP
    5 15 Congress Avenue, Suite 1750
    Austin, Texas 78701
    Tel. (512) 708- 1000
    Fax (512) 708-1002
    Attorneys.for Plaintiff Gregory Joe Wickline
    Sean E. Breen
    - 23 -
    101
    TAB D
    December 18, 2014 Hearing Transcript
    (RR 1-35)
    1
    1                      REPORTER'S RECORD
    VOLUME 1 OF 1 VOLUME
    2           TRIAL COURT CAUSE NO. D-1-GN-14-004391
    COURT OF APPEALS NO. 03-15-00077-CV
    FILED IN
    3                                        3rd COURT OF APPEALS
    AUSTIN, TEXAS
    4   GREGORY JOE WICKLINE,       ) IN THE DISTRICT       COURT
    2/13/2015 9:23:19 AM
    Plaintiff,              )          JEFFREY D. KYLE
    5                               )                Clerk
    VS.                         )
    6                               )
    BOARD OF REGENTS FOR THE    )
    7   OKLAHOMA AGRICULTURAL AND   )
    MECHANICAL COLLEGES,        )
    8   ACTING FOR AND ON BEHALF    )
    OF OKLAHOMA STATE           )
    9   UNIVERSITY; AND JAMES       ) TRAVIS COUNTY, TEXAS
    MICHAEL HOLDER, IN HIS      )
    10   INDIVIDUAL CAPACITY AND     )
    IN HIS CAPACITY AS VICE     )
    11   PRESIDENT FOR ATHLETIC      )
    PROGRAMS AND DIRECTOR OF    )
    12   INTERCOLLEGIATE ATHLETICS   )
    FOR OKLAHOMA STATE          )
    13   UNIVERSITY,                 )
    Defendants.             ) 98TH JUDICIAL DISTRICT
    14
    15
    16
    17   _______________________________________________________
    18
    19            MOTION TO DISMISS AND MOTION TO STAY
    20
    21   _______________________________________________________
    22
    23
    24
    25
    2
    1       On the 18th day of December, 2014, the following
    2   proceedings came on to be heard in the above-entitled
    3   and numbered cause before the Honorable Amy Clark
    4   Meachum, Judge Presiding, held in Austin, Travis
    5   County, Texas:
    6       Proceedings reported by machine shorthand.
    7
    8
    9
    10
    11
    12
    13
    14
    15
    16
    17
    18
    19
    20
    21
    22
    23
    24
    25
    3
    1                         APPEARANCES
    2
    3   FOR THE PLAINTIFF:
    4       DAVID J. BECK
    SBOT NO. 00000070
    5       BECK REDDEN LLP
    Suite 4500
    6       1221 McKinney Street
    Houston, Texas 77010
    7       Phone: (713) 951-3700
    8            - AND -
    9       KARSON K. THOMPSON
    SBOT NO. 24083966
    10       BECK REDDEN LLP
    Suite 1750
    11       515 Congress Avenue
    Austin, Texas 78701
    12       Phone: (512) 708-1000
    13
    14   FOR THE DEFENDANTS:
    15       SEAN E. BREEN
    SBOT NO. 00783715
    16       RANDY HOWRY
    SBOT NO. 10121690
    17       JAMES HATCHITT
    SBOT NO. 24072478
    18       HOWRY BREEN & HERMAN, L.L.P.
    1900 Pearl Street
    19       Austin, Texas 78705
    Phone: (512) 474-7300
    20
    21
    22
    23
    24
    25
    4
    1                            INDEX
    2                          VOLUME 1
    3            MOTION TO DISMISS AND MOTION TO STAY
    4
    5                                               Page   Vol.
    6   DECEMBER 18, 2014
    7
    8   Announcements............................   5      1
    9   Argument by Mr. Breen....................   6      1
    10   Argument by Mr. Beck.....................   22     1
    11   Argument by Mr. Breen....................   31     1
    12   Taken Under Advisement...................   33     1
    13   Adjournment..............................   35     1
    14   Court Reporter's Certificate.............   36     1
    15
    16
    17
    18
    19
    20
    21
    22
    23
    24
    25
    5
    1                  THE COURT:    This is GN-14-4391, Wickline
    2   vs. Oklahoma State.
    3                  Let me go ahead and take the attorney
    4   announcements and also who you're representing for the
    5   record.
    6                  MR. BREEN:    Good afternoon, Your Honor.
    7   Sean Breen here with Randy Howry and James Hatchitt.
    8   We represent the defendants in the case, which we'll
    9   refer to as Oklahoma State University and the Athletic
    10   Director, Mike Holder.
    11                  MR. BECK:    May it please the Court, David
    12   Beck and Karson Thompson for the plaintiff, Coach Joe
    13   Wickline.
    14                  THE COURT:    All right.   We are here on a
    15   motion to dismiss and a motion to stay.     That's what I
    16   have.   I haven't had a chance to read any of the
    17   pleadings on this case, just because I was calling the
    18   unassigned this afternoon, and so I'm cold, is what I'm
    19   saying.   So tell me first off, who's the movant and
    20   what your motions are.
    21                  MR. BREEN:    Your Honor, the defendants
    22   are the movants.   We have two very specific motions.
    23   They're being made subject to a special appearance that
    24   we have filed and subject to a plea in the
    25   jurisdiction, which are sort of the bookends on either
    6
    1   side.
    2                 These motions are a motion to dismiss
    3   because of a mandatory forum selection clause in the
    4   contract at issue, and the second motion is an
    5   alternative motion to stay or dismiss based on comity,
    6   because this is a second filed lawsuit.      This lawsuit
    7   was filed by Mr. Wickline after a substantially similar
    8   or the same lawsuit was filed already in Oklahoma.       So
    9   those are the two grounds.
    10                 THE COURT:     Okay.    And you are the
    11   movant?
    12                 MR. BREEN:     Yes, I am, Judge.
    13                 THE COURT:     So please proceed.
    14                    ARGUMENT BY MR. BREEN
    15                 MR. BREEN:     Thank you very much.     Judge,
    16   this second filed lawsuit does not belong here in
    17   Austin, in the state of Texas.       We're asking the Court
    18   here today, based on a mandatory forum selection clause
    19   and based on its discretion under principles of comity,
    20   to dismiss this case and allow the case that was first
    21   filed in Oklahoma to proceed.
    22                 This deals with what you probably have
    23   seen in the news a lot lately this time of year, which
    24   is coaches that decide to change universities and coach
    25   football at a different university.      Some do it
    7
    1   voluntarily, others do it involuntarily.   This was a
    2   voluntary move by the offensive line coach,
    3   Mr. Wickline, from Oklahoma State University to a
    4   competitor within the Big XII, the University of Texas
    5   here in Austin.
    6                  Judge, what I've done to help orient you
    7   is I -- I have created a timeline of events that I
    8   think this -- Judge, that are -- or I will just
    9   succinctly walk through with you, which I think help
    10   orient and frame then the fairly straightforward
    11   analysis on the forum selection clause and then under
    12   the motion to stay or dismiss based on comity.
    13                  So, Mr. Wickline was coaching the
    14   offensive line and the running game coordinator at the
    15   University of Florida from 2002 to 2004.   He then
    16   moved, Your Honor, and was hired by Oklahoma State
    17   University.   They've been sued through the Board of
    18   Regents in this case, but shorthand, I'll -- I'll just
    19   use that phrase, or OSU, if the Court doesn't mind.
    20   And then Mr. Holder is the Athletic Director and one of
    21   the vice presidents at the University -- Oklahoma State
    22   University.
    23                  Mr. Wickline signed his first employment
    24   contract with OSU to become the offensive line coach in
    25   January of 2005.   That first contract had a term to it.
    8
    1   And pertinent to these issues, Judge, it also had a
    2   couple of provisions; one, it had a mutual
    3   liquidated-damage provision.   Easy to understand.     If
    4   the University fired him, he got paid a liquidated sum
    5   of money.   If he quit and went somewhere else, he would
    6   have to pay a liquidated sum of money.   It's very
    7   common in the coaching industry to have that in
    8   employment contracts.
    9                  It also, Your Honor, had a mandatory
    10   forum selection clause that set the District Court of
    11   Payne County, Oklahoma, as the situs -- for disputes
    12   arising under the contract or involving the contract.
    13   That's Paragraph 14.    I put a little sticky on it,
    14   Judge, in your notebook.   It's under Tab 5.   It has a
    15   sticky.
    16                  Paragraph 14 there that says, "Any action
    17   to enforce any of the provisions of this agreement
    18   shall be filed in the Payne County District Court."
    19   That's the pertinent sentence that runs through every
    20   single renewal or contract that Mr. Wickline signed
    21   with OSU.   And, Judge, that was seven of them.   Seven
    22   times he renewed or signed ratifying that mandatory
    23   forum selection clause.    You'll note it uses the term
    24   shall.
    25                  He signed a second contract in January of
    9
    1   2009.   It made some provisions, Judge, because the
    2   intent of the agreement was, if Mr. Wickline took a job
    3   that was a promotion, NFL or a head coach, et cetera,
    4   then that would be a -- what the plaintiff refers to as
    5   a safe harbor.    He wouldn't have to pay back the
    6   liquidated-damage clause, because it was intended to
    7   just apply to lateral moves, not moves where he was
    8   furthering himself up the ladder.
    9                    And mind you, Judge, this is a very
    10   talented coach.    He was extremely successful at
    11   Oklahoma State University, and some believe performed
    12   miracles here at UT this fall given the decimated line
    13   that he had.   So there's no disparaging or bad feelings
    14   or -- or lack of talent on Mr. Wickline's part.      It's
    15   just the opposite.    That's exactly why these provisions
    16   were in the contract is because he is so talented and
    17   important.
    18                    You'll see in January 2011, Judge, there
    19   was another employment contract amendment signed.      And
    20   this one is also at issue here.    It added a -- again,
    21   what a phrase the plaintiff uses, a safe harbor phrase
    22   that says, If he become the offensive coordinator with
    23   play-calling duties, then that's an exception, and he
    24   doesn't have to pay back the liquidated-damage clause.
    25                    So, again, Judge, if he made a move and
    10
    1   became an offensive coordinator pretty much anywhere
    2   with these play-calling duties, he wouldn't have to pay
    3   back the money that he had agreed to pay.   In January
    4   of 2012 --
    5                 THE COURT:   Hold on one second.
    6                 (Off the record.)
    7                 MR. BREEN:   In January of 2012, the
    8   seventh time Mr. Wickline signed an employment
    9   contract, it increased the liquidated-damage provision
    10   if Mr. Wickline left to go to a competitor within the
    11   Big XII, such as UT.   And, in fact, Judge, that's
    12   exactly what happened.
    13                 In January of 2014, Mr. Strong became the
    14   coach at the University of Texas.   Given his previous
    15   ties with Mr. Wickline and Mr. Wickline's immense
    16   talent, Mr. Wickline then unilaterally and voluntarily
    17   terminated his employment with OSU and became a coach
    18   here at the University of Texas.    He represented that
    19   his new position was offensive coordinator, offensive
    20   line coach, and that he would have play-calling duties.
    21                 That, then, Judge, allegedly put him
    22   within the safe harbor so that he didn't have to pay
    23   back the money that he'd agreed to under the contract,
    24   the mutual liquidated-damage clause.
    25                 In March of 2014 it became apparent
    11
    1   through comments in the press, or at least readily
    2   apparent to Oklahoma State University, that
    3   Mr. Wickline did not have the play-calling duties that
    4   had been the intent of the contract to save the
    5   liquidated-damage provision.    There are a couple of
    6   articles that I have included, not for the truth of the
    7   matter but just for notice, that indicated to OSU he
    8   was not going to be the person calling the plays;
    9   instead Mr. Shawn Watson was.
    10                    Therefore, Judge, on March 24th, the
    11   Athletic Director, Mike Holder, sent a letter to
    12   Mr. Wickline.    The letter is also included in our
    13   packet to you.    It's Exhibit D.   The letter is called
    14   for by the employment contract to give notice to
    15   Mr. Wickline that Oklahoma State believes he owes them
    16   the liquidated-damage money because he didn't have the
    17   play-calling duties.    Mr. Holder obviously sent it and
    18   signed it on Oklahoma State letterhead, expressly
    19   signed as Vice President for Athletic Programs and
    20   Director of Intercollegiate Athletics.    It's in his
    21   official capacity of VP and Athletic Director for
    22   Oklahoma State.
    23                    That was then followed up by a letter,
    24   April 22nd, by the general counsel for Oklahoma State
    25   because the contract requires, before a lawsuit can be
    12
    1   filed in the mandatory venue of Oklahoma, you have to
    2   give 30 days' notice and participate in good faith
    3   negotiations.   That was delivered on April of 2014.
    4                   Some six months later, with no progress
    5   in the negotiations, Oklahoma State filed the suit, and
    6   you have a copy of it, Judge.   And it's for breach of
    7   contract against Mr. Wickline, and it's requesting the
    8   liquidated damages that are -- he owes them under the
    9   provisions of the contract; the two main ones that
    10   we've talked about.
    11                   Mr. Wickline answered in that lawsuit and
    12   he filed a motion to dismiss, among other different
    13   things.   But, importantly, Judge, three days later, he
    14   also filed this lawsuit here in Texas, in Travis
    15   County, against Oklahoma State and the Athletic
    16   Director, and we believe it's virtually identical and
    17   essentially the same issues, Judge.
    18                   He's suing on two things.   One, he's
    19   asking for declaratory relief under Chapter 37 of the
    20   Civil Practice & Remedies Code about a provision in the
    21   contract, that's the play-calling duties provision.
    22   And then, Judge, he also sued Mr. Holder and the
    23   University for tortious interference with his -- his
    24   employment contract here at UT.   And the basis in the
    25   pleadings is, the letters that Oklahoma State
    13
    1   University sent to Mr. Wickline under the contract, the
    2   notice letters that you see in your packet.   Those are
    3   the claims that are made here.
    4                   The University, as I pointed out to you,
    5   Judge, we filed a special appearance because of lack of
    6   jurisdiction.   We've also filed on the back-end
    7   basically Tort Claims Act defenses under Oklahoma law
    8   because Oklahoma law applies.
    9                   But there's ample case law in the state
    10   of Texas that says, This narrow issue of forum
    11   selection or comity can be addressed, because as you
    12   know, the losing party would either have the right of
    13   appeal or mandamus right away.   And it would be
    14   potentially dispositive of the whole case here.
    15                   Interestingly, I've been informed that
    16   Mr. Wickline's motion to dismiss in Oklahoma was denied
    17   this morning.   There was a hearing in Oklahoma.   It was
    18   denied, and that case is moving forward on the merits
    19   in Oklahoma, as we speak.
    20                   Now, Judge, that brings us to the two
    21   issues before you, and that is, should the Court
    22   dismiss the case based on the forum selection clause,
    23   the answer's yes; or alternatively, should be dismissed
    24   or stayed based on principles of comity, if it isn't
    25   dismissed because of the forum selection clause.
    14
    1                  In the first instance, Judge, what I've
    2   done is, we set out for you -- and you haven't had a
    3   chance to see it -- that even though Oklahoma law
    4   applies under the contract, under forum selection
    5   analysis, Texas law applies.   So all the cases that I
    6   cited to you and that Mr. Hatchitt cited to you in the
    7   brief, are Texas cases on the issue.
    8                  Now, two points, Judge.   As you well
    9   know, we're seeking to dismiss it, so we have the
    10   burden to demonstrate two things; that there's an
    11   agreement for an exclusive forum to settle the disputes
    12   and the scope of that agreement includes the claims
    13   that are made here.   All right?
    14                  So turning to the first one, as you've
    15   seen -- and I don't believe is in dispute in this
    16   case -- there's clearly a mandatory forum selection
    17   clause in Paragraph 14 of the employment agree --
    18   agreement, and it's there to enforce any of the
    19   provisions of this agreement that has to be done in
    20   Oklahoma, per the agreement of the parties.    It shall
    21   means mandatory, and it was agreed to by Mr. Wickline
    22   seven times.
    23                  There isn't anything I've seen yet that
    24   challenges the existence of the agreement.    Instead
    25   Mr. Wickline has opposed this motion based on the scope
    15
    1   of the agreement.   Their claims are that to enforce any
    2   of the provisions of the agreement don't apply to the,
    3   basically, mirror claims that he has brought in this
    4   case, which we believe are really the same issues,
    5   Judge.
    6                 So that then takes you to what I've put
    7   in Tabs 3 and 4 of your notebook, which is the law that
    8   applies to the scope of a forum selection clause and
    9   how we determine it.   And really, Judge, it boils down
    10   to a common sense examination of the terms.   That's
    11   really simply what the Supreme Court has said that we
    12   have to do in this instance.   So you have to first
    13   decide, what does enforce any provisions of the
    14   agreement mean?   And we believe that a common sense
    15   interpretation of that simply means to give force or
    16   effect or to carry out the clauses of the contract.
    17   It's just that simple.   And that makes perfect sense.
    18                 So then, Judge, what you do is you look
    19   at the two claims they've made, and you decide, okay,
    20   do any of those two claims implicate that provision,
    21   and if so, they fall within the forum selection clause.
    22                 The first one is expressly -- expressly
    23   asking the Court to interpret a provision of that
    24   Oklahoma State contract.   Okay?   That clearly --
    25   that dec action, absolutely on its face, calls for the
    16
    1   Court to carry out and interpret what and whether this
    2   safe harbor provision will apply.    There -- I don't
    3   believe there's any question about that whatsoever.
    4                 The second issue, Judge, is that the --
    5   the case here has this twist because it -- there was
    6   this tortious interference added.    Okay.   Tortious
    7   interference allegedly -- mind you, Coach Wickline
    8   hasn't lost his job at UT.   He still gets paid.
    9   There's -- there really, Judge, when you look at this,
    10   is probably very much of a similarity to the type of
    11   pleadings sometimes in federal court that you see, a
    12   sham pleading with -- with all due respect, to try to
    13   get jurisdiction or get around something.    That clearly
    14   is what this appears to be, yet it doesn't successfully
    15   save it from the forum selection clause.
    16                 Okay.    When you look at common sense
    17   examination of the substance of the claims, Judge, here
    18   what you're going to have to ask is, what are they
    19   suing Oklahoma State and this Athletic Director for?
    20   Committing a tort.    What tort?   Sending letters that
    21   are required under the very contract that has the forum
    22   selection clause.    That implicates the clause.   The
    23   case law says that implicates the clause.
    24                 Secondly, in addition to suing these --
    25   the entities and -- and the person for doing what the
    17
    1   contract requires them to do, it also implicates an
    2   affirmative defense that my clients have.   My clients
    3   have affirmative defenses of justification and
    4   privilege because if, in fact, in good faith, they were
    5   exercising their rights under the contract, even if
    6   there's a disagreement on whether the safe harbor issue
    7   applies, then that also implicates the mandatory forum
    8   selection clause.
    9                  And there's three cases for you, Judge,
    10   in your notebook that have that rule, the affirmative
    11   defense implicates the contract rule, Tab 5, Tab 6, and
    12   Tab 7.   It's the In re Counsel Financial Services, the
    13   Excentus and Aerus case, which I've highlighted the
    14   pertinent language for Your Honor and also provided a
    15   copy to counsel.    Those cases, we believe, are right on
    16   point.   If you have an affirmative defense that
    17   implicates the contract, and the contract has the forum
    18   selection clause, then it makes perfect common sense
    19   that you're enabled to get the benefit of the clause,
    20   particularly when the individual signed it seven times.
    21                  Next, Judge, there would be an exception
    22   perhaps in the case if Mr. Wickline could avail himself
    23   to any of the four ways to bust a forum selection
    24   clause, but he hasn't pled or proved those.   And I
    25   don't believe has forwarded an argument that somehow
    18
    1   there's an exception that the clause should not be
    2   enforced, either through fraud in the inducement,
    3   material unfairness, et cetera.
    4                    So it really does boil down to the issue
    5   of, when you look at the language, you look at the
    6   claims pled, the interpretation of the contract there,
    7   Judge, does it apply?    The last issue is, can
    8   Mr. Holder invoke the forum selection clause?     He
    9   certainly can.    He's a signatory to the agreement.
    10   He's an actual signatory to it.    And even if he wasn't,
    11   they've pled an inextricable intertwined nature of a
    12   tort here.    Therefore, under that case law, he also
    13   deserves the benefit of the forum selection clause.
    14                    So, Judge, when you look at what the law
    15   is, in this instance, the intent of the parties, what
    16   Mr. Wickline agreed to, the fact that the suit was
    17   filed first in Oklahoma, that it's proceeding, and the
    18   nature of the claims he has made here in Texas, even if
    19   he tries to artfully plead a tortious interference, it
    20   shouldn't succeed.    The forum selection clause should
    21   be enforced, and this case should be dismissed without
    22   prejudice so he can do it up in Oklahoma.
    23                    Now, there's an alternative argument,
    24   too, Judge.    If for some reason you would disagree with
    25   that, which we hope doesn't happen, but if you do,
    19
    1   there are cases that say the principles of comity apply
    2   here, and the first-filed rule should be applied.
    3                   Now, Judge, I concede to you that this is
    4   within your discretion.     This is a discretionary
    5   matter, but there's a lot of urging by the Texas
    6   Supreme Court and other pertinent cases that say you
    7   really ought to honor the fact that the case was filed
    8   first in Oklahoma and defer to that, for really three
    9   main reasons.
    10                   One, Judge, is, Mr. Wickline himself has
    11   conceded in Oklahoma in his pleadings up there that
    12   this case in Texas is really the same case.      I have a
    13   blurb for you that's in your packet, and we put it in
    14   the brief as well, where he basically says to the Court
    15   up there, Why don't you transfer this down or let it go
    16   down to Travis County where the same issues in this
    17   case are pending?   Okay.
    18                   So we believe Mr. Wickline has
    19   admitted -- and, of course, he has different counsel in
    20   Oklahoma than -- than Mr. Beck, but, nonetheless, I --
    21   I gave you a certified copy of it, and I think that
    22   speaks volumes.   All right?
    23                   Second, they say, Well, Judge, you
    24   can't -- you shouldn't stay or dismiss this case based
    25   on comity because it's not the same parties or not the
    20
    1   same claims.   Well, Judge, what the case law says is,
    2   it doesn't have to be a specific identity of parties;
    3   otherwise, you could just defeat a first-filed rule by
    4   adding a party in like they have, which is really just
    5   a sham pleading anyway.   Mind you, I haven't seen a
    6   single case that says it's a tort, much less even
    7   jurisdiction, to send a demand letter that's required
    8   under a contract.
    9                  So, Judge, we believe the law -- and if
    10   you look at the In re State Farm case that we have
    11   cited for you, I believe it's 11 and in 12, are the two
    12   tabs.   The law says, Look, ask the question, can the
    13   parties obtain all the relief in the first-filed suit
    14   that they would be entitled to do down here in Texas?
    15   And the answer is yes, they certainly can.
    16                  And, third, Judge, Wickline says, Well, I
    17   have a dec action pending here.   That's different
    18   somehow, and I'm using a dec action so it's not the
    19   same identity of party or the same identity as claims.
    20   Judge, there's two cases, 9 and 10 in your packet, BP
    21   Oil Supply Company and Porta-Kamp that say, you know
    22   what, you can't avoid the first-filed rule by filing a
    23   dec action in Texas after the case has already been
    24   filed in another state.   And, in fact, in those cases,
    25   it -- the dismissal was either upheld or mandated by
    21
    1   the Court of Appeals.
    2                  Now, I also included in the very end of
    3   the packet for you, Judge, just as sort of to be
    4   instructive, a couple of state cases that have to do
    5   with pleas to the -- or a special appearance based on
    6   allegations that demand letters were somehow
    7   actionable.   And in those cases, Judge, not only did
    8   they find they weren't torts, but they weren't even
    9   enough for sufficient contacts to be a plea -- a plea
    10   to the jurisdiction and -- or to sustain a -- overcome
    11   a special appearance.   So, Judge, we think that you can
    12   look behind the pleadings and apply common sense
    13   application when it comes to the rules of comity.
    14                  Now, the final thing, Judge, that's
    15   instructive is, the cause of action against Mr. Holder
    16   in -- in his capacity as Athletic Director, is not even
    17   actionable under Oklahoma law.   And we, again, think
    18   you can look to that, as -- when you're looking at the
    19   common sense interpretation, Oklahoma law says, under
    20   the Tort Claims Act equivalent, that you have to sue --
    21   if you're suing somebody in their capacity as an
    22   employee, then that suit is barred.   You have to sue
    23   the entity, the governmental entity, not the
    24   individual.   So, again, Judge, that shows here that it
    25   shouldn't and can't be a basis to sustain this.
    22
    1                   So it's for those reasons we ask for the
    2   forum selection clause to be enforced, this to be
    3   dismissed, or alternatively, this to be dismissed based
    4   on comity.
    5                   THE COURT:    All right.   Thank you.
    6                      ARGUMENT BY MR. BECK
    7                   MR. BECK:    May it please the Court, Your
    8   Honor.   David Beck for plaintiff, Mr. Wickline,
    9   respondent to the motion.     We're not talking about the
    10   merits of this underlying dispute.     The Court's been
    11   given certain documents.     There are other documents
    12   that we could give the Court that -- that bear upon the
    13   merits of this case.   For example, one of the documents
    14   not submitted to you is a May 6, 2014 document letter
    15   from the representative of Oklahoma State accusing not
    16   only my client, but the University of Texas, of giving
    17   him a misleading title of offensive coordinator when he
    18   was not the offensive coordinator.     And I will
    19   represent to the Court, his contract expressly says
    20   that he is the offensive coordinator at the University
    21   of Texas.    This letter goes on to say that
    22   statements -- they put are assuredly untrue.      They talk
    23   about contriving job titles and disingenuous comments
    24   and so on and so forth.
    25                   Coach Wickline is being sued up in
    23
    1   Oklahoma for three times what his annual salary was.
    2   His annual salary was $200,000.    They're trying to get
    3   from him, as liquidated damages, three times that
    4   amount.   But we're not talking about the merits in the
    5   case before Your Honor.    We're talking about two very
    6   narrow issues.
    7                    Counsel is absolutely correct.   We are
    8   talking about a forum selection provision.    That's the
    9   sole basis of their request that you somehow transfer
    10   this case up to Oklahoma -- at Stillwater where
    11   Oklahoma State is located.
    12                    Now, this provision, this contract, was
    13   drafted by Oklahoma State.    They knew exactly what they
    14   wanted in this contract.    They're the ones that came up
    15   with this forum selection provision.    And if you look
    16   at this forum selection provision, Your Honor, you will
    17   see that it is a very narrow provision.    It was
    18   obviously designed and intended to allow Oklahoma
    19   State, when it wanted to enforce its contracts, to sue
    20   in its hometown.    That is the obvious import of this
    21   forum selection provision.    But it also specifically
    22   talks about any action to enforce the contract.
    23                    Coach Wickline is not trying to enforce
    24   anything in the suit before Your Honor.    In fact, he
    25   doesn't think that this liquidation provision is valid,
    24
    1   but the fact of the matter is, that he's not trying to
    2   enforce anything.   What he's trying to do is
    3   essentially two things:   One is to ask Your Honor,
    4   under the declaratory judgment statute, to tell us what
    5   the meaning is of one provision in his contract.
    6                   Now, the fact of the matter is -- and
    7   I'll get into this in just a moment -- regardless of
    8   how you interpret that provision of the contract,
    9   that's not going to end this dispute.   There will not
    10   be an order from you -- and, for example, if you rule
    11   in favor of Oklahoma State, you are not going to be
    12   entering an order to say, Coach Wickline, write them a
    13   check.    On the other hand, if you rule in favor of
    14   Coach Wickline, that's not going to end the litigation
    15   either.    So the litigation in -- before Your Honor is
    16   doing to continue regardless of what happens up in
    17   Oklahoma.
    18                   So one of the essential and underlying
    19   basis for their claim is that somehow this action up in
    20   Oklahoma is going to dispose of everything.     And I
    21   respectfully disagree with that and will show the Court
    22   in just a moment that, under the applicable case law in
    23   Texas, that is not correct.
    24                   Now, the -- that's essentially what
    25   they're arguing in -- in terms of this forum selection
    25
    1   provision.   So our provision simply stated is, number
    2   one, it doesn't apply by its very terms because it
    3   applies only in an effort to enforce the contract.     And
    4   you can look in vain to the plaintiff's original
    5   petition in this case before you, and you will not see
    6   any provision or any request for relief that somehow
    7   Coach Wickline wants you to enforce anything.   It is
    8   simply asking for declaratory judgment.
    9                  Now, we also have before you a second
    10   cause of action, which is a tortious interference
    11   claim.   Obviously, that is a tort action   that is
    12   totally separate and apart from the declaratory
    13   judgment action.   And as I said, even if somehow that
    14   Oklahoma case goes forward and even assuming, for the
    15   sake of discussion, that Coach Wickline loses up
    16   there -- we don't think he will, but assuming that --
    17   that he does, we still have our tortious interference
    18   claim because our provision -- our position is that
    19   even if you have a valid contract and even if you have,
    20   under a tortious interference claim, an arguable
    21   defense of justification or privilege, that doesn't
    22   mean that you can, with impunity, say anything or do
    23   anything you want with respect to the employee and
    24   with -- certainly with respect to the employee's
    25   employer, which would be, in this case, the University
    26
    1   of Texas.
    2                    The Supreme Court of Texas in the
    3   Prudential case -- and I've given Your Honor a copy of
    4   that case.
    5                    THE COURT:    Yes.
    6                    MR. BECK:    -- was in -- clearly involved
    7   a situation where Pruden- -- the contract at issue was
    8   valid.   There's no question that Prudential had certain
    9   rights with respect to its policies and with respect to
    10   its -- with respect to the people it was doing business
    11   with.    The people that held policies, its
    12   policyholders.
    13                    But the court goes on to say -- and I'm
    14   want to quote this so that I don't misrepresent it in
    15   any way.    And the Supreme Court of Texas says -- and I
    16   quote -- "But that does not mean that Prudential could
    17   say or do anything under the guise of exercising a
    18   privilege.   A party may not exercise an otherwise
    19   legitimate privilege by resorting to illegal or
    20   tortious means.    Thus, if the plaintiff pleads and
    21   proves methods of interference that are tortious in
    22   themselves, then the issue of privilege or
    23   justification never arises," end of quote.
    24                    Again, this is not the merits.   But we
    25   are pointing out that their efforts in our tortious
    27
    1   interference case to inject the contract by way of this
    2   justification and privilege defense still doesn't get
    3   them where they need to go, because under the
    4   applicable law, and specifically the Texas Supreme
    5   Court, they still have to account for what they've
    6   done.   They still have to account for some of these
    7   statements that they made publicly.   They still have to
    8   account for these letters that they have written, not
    9   just to my client, but which the University of Texas
    10   has become aware of.
    11                  And so we intend at the proper time,
    12   again subject to rulings that you make, to prove a
    13   tortious interference case and to show that -- that
    14   Mike Holder and -- and also Oklahoma State University
    15   tortiously interfered with Coach Wickline's contract;
    16   not his contract with Oklahoma State, but his contract
    17   with the University of Texas.   That's the contract
    18   we're claiming was tortiously interfered with.
    19                  So that is our position with respect to
    20   the very narrow issue of whether or not this forum
    21   selection provision, which is limited to enforcing the
    22   OSU contract, somehow justifies Your Honor in
    23   dismissing our case entirely on the basis that it gets
    24   transferred to Oklahoma.
    25                  Let me turn very briefly to their comity
    28
    1   argument.   On their motion to stay, they're basically
    2   arguing that the case in Oklahoma was first filed.       And
    3   they're right.    This case was filed three days later.
    4   This case would have been filed whether or not they
    5   filed that case a week, two weeks, or whatever, because
    6   there's a difference in facts and -- and a different
    7   basis for our cause of action.
    8                    So when you look at the basis of their
    9   motion to stay, we have to look at the applicable law.
    10   And -- and -- for example, in the State Farm case,
    11   which is a Tyler Court of Appeals case, 2006, it
    12   clearly sets forth what the general rule is, Your
    13   Honor.   And it says, To obtain a stay of the second
    14   filed action -- which is the one before you -- the
    15   movant has the obligation to show that both suits,
    16   number one, involve the same cause of action; number
    17   two, involve the same subject matter; number three,
    18   involve the same issues; and number four, involve the
    19   same parties.
    20                    Well, we would submit, as a matter of
    21   law, that is not correct.    We've got different causes
    22   of action because Oklahoma -- Oklahoma State is arguing
    23   breach of contract up there.    Down in here we're
    24   talking about a declaratory judgment action under our
    25   statute and a tortious interference claim.
    29
    1                  So you don't have the same causes of
    2   action.   You don't have the same subject matter because
    3   the causes of action are different.   You don't have the
    4   same issues because the causes of action are different.
    5   And you don't even have the same parties in this case
    6   because Mr. Holder is not a party up in Oklahoma.     He
    7   is a party down here, for reasons that we've asserted
    8   in our -- in our petition.
    9                  And the relief requested is different.
    10   In Oklahoma, they're requesting that -- that -- that
    11   Coach Wickline pay three times what his contract for
    12   Oklahoma State called for; whereas down here, we're --
    13   we're basically suing for damages solely on the basis,
    14   at this time, of this tortious interference claim.     And
    15   then we're asking for declaratory judgment.    So
    16   regardless of what happens up there, Your Honor is
    17   still going to have this case down here.
    18                  So -- now, in the DJ action, as I've
    19   said, even if that case goes forward up there, this
    20   case will not be over, for the reasons that I've talked
    21   about, and specifically the Prudential case.   So at
    22   some point we're going to have to -- to fight over what
    23   they've done and how they did it.
    24                  A person may or may not have a -- an
    25   arguable legal right, Your Honor, but that doesn't mean
    30
    1   you can assert it any way you want.   Your Honor may be
    2   familiar with a lot of these collection agency cases
    3   where somebody has a contract with some store.   They
    4   haven't paid their bill.   The collection agency goes
    5   after the person.   But that doesn't mean that they can
    6   do some of the things that some of them have been
    7   accused of and -- and supposedly did.    You -- it's the
    8   way you do things that are just as important as whether
    9   you have an underlying arguable basis for what you do.
    10                 So, again, you've got two narrow issues.
    11   One is what we've asserted, an action to enforce the
    12   Oklahoma State contract, and we say it is not, for the
    13   reasons I've already explained and is in our papers.
    14                 And then the second reason is that the --
    15   the tortious interference claim and the motion to stay,
    16   again, is a very narrow request, because if you go
    17   through the elements of what's required, they can't
    18   meet that burden.
    19                 So, Your Honor, we would respectfully
    20   request that both of these cases ought to go forward in
    21   their normal course because it doesn't matter which one
    22   comes to judgment first.   The other one is going to
    23   continue.
    24                 So for those reasons -- oh, one other
    25   thing I'd like to mention, Your Honor.   We got -- and
    31
    1   I'm not fussing with anybody, I want to make it clear.
    2   We got a 22-page brief with some exhibits yesterday,
    3   and I would like a reasonable opportunity to respond.
    4   And I can do that very quickly.     And with that, Your
    5   Honor, that concludes our comments.
    6                    THE COURT:   You'd have the final word.
    7                       ARGUMENT BY MR. BREEN
    8                    MR. BREEN:   Thank you, Judge.   Brief.
    9   Yes, final.   A couple of things, Judge.    First, it's
    10   been raised that somehow there's a materiality to the
    11   fact that he's being sued for three times his annual
    12   salary, something he agreed to in the contract.      I will
    13   point out that most honorable collegiate institutions
    14   usually pay the buyouts of their coaches when they hire
    15   them.   And I don't know why that didn't occur here, but
    16   it's not material to the forum selection clause.       The
    17   fact of what he owes and why he agreed to it isn't
    18   material at all.
    19                    Next, we're not asking the Court to
    20   transfer the case as was stated.     We're asking for the
    21   case to be dismissed.    Mr. Wickline could make these
    22   claims in Oklahoma where he agreed to make them and
    23   where his lawsuit -- and where the lawsuit against him
    24   is proceeding.    So that's just incorrect.
    25                    THE COURT:   I don't know that I could
    32
    1   transfer a case.
    2                 MR. BREEN:    I don't -- you can't, Judge.
    3                 THE COURT:    All right.
    4                 MR. BREEN:    You can't at all.    But he
    5   certainly could make these claims in Oklahoma.     Of
    6   course, he's going to have to do it pursuant to the
    7   applicable laws up there.
    8                 There was an argument made under the
    9   forum -- forum selection clause that we're arguing that
    10   the Oklahoma case will dispose of everything under the
    11   forum selection clause.    That's not correct.   I'm not
    12   making that argument.   What I'm making the argument of,
    13   and which wasn't addressed at all by counsel in this
    14   case, is -- but what is proved unequivocally by his
    15   Prudential case is, Prudential says that an affirmative
    16   defense to tortious interference is, you had a
    17   contractual right to do it.
    18                 Well, guess what, Judge, if the contract
    19   provides the basis for an affirmative defense, I've
    20   given you three cases that say, that means it's within
    21   the forum selection clause.   That's Tab 5, 6, and 7.
    22   It's not addressed in any way because they're right on
    23   point, and Prudential shows you, if the contract is at
    24   issue in the affirmative defense, there's where it
    25   goes, is to the forum selection clause.
    33
    1                  And then, Judge, as to the comity, they
    2   say this is a different case.     I'd just ask Your Honor
    3   to look at Mr. Wickline's pleadings.    That's not what
    4   he told the Oklahoma court.   He told them the truth.
    5   It's essentially the same case.
    6                  You can try to disguise it.    You can try
    7   to plead around it.   But at the end of the day, Judge,
    8   the fact that they assert, Well, we would have filed
    9   this anyway, is belied by the fact that they had a copy
    10   of the prospective lawsuit for six months.    They didn't
    11   file any lawsuit.   They didn't file this one until
    12   three days after they were sued -- he was sued in
    13   Oklahoma.   And it's clear why.
    14                  For some reason he doesn't believe he can
    15   get a fair trial in the venue that he selected and
    16   lived in for all those years.     That's what they
    17   expressly told the Judge.   That's what they are
    18   essentially telling you here.     And that's not a basis
    19   to not enforce the principles of comity.     So, Judge,
    20   for those reasons, we'd ask for you to dismiss this
    21   case.
    22                    TAKEN UNDER ADVISEMENT
    23                  THE COURT:   Okay.   Well, I am going to
    24   take it under advisement.   If you -- let's see.     You
    25   want a chance to read what was filed yesterday, it
    34
    1   sounds like --
    2                    MR. BECK:    Right.
    3                    THE COURT:    -- and an opportunity to
    4   respond?   Is Monday...
    5                    MR. BECK:    We can do it by Monday, Your
    6   Honor.
    7                    THE COURT:    Okay.
    8                    MR. BECK:    Close of business?
    9                    THE COURT:    Yes, close of business on
    10   Monday.
    11                    MR. BECK:    Yes, we can.
    12                    THE COURT:    And is there any -- am I
    13   under any deadline?    Am I under -- because I probably
    14   would not -- since that's coming on Monday, my guess is
    15   I wouldn't get something out to you until after the
    16   first of the year, but I -- but I want to make sure I'm
    17   not under any deadline.
    18                    MR. BREEN:    No, Judge, you're not under
    19   any deadline.
    20                    MR. BECK:    And I agree with that.
    21                    THE COURT:    Okay.   Thank you.
    22                    MR. BREEN:    Although our Christmas wish
    23   list is quite large.
    24                    THE COURT:    Duly noted.
    25                    MR. BECK:    No Christmas Eve orders,
    35
    1   please.
    2                 THE COURT:   All right.   Then we can go
    3   off the record at this time.
    4                 (Court adjourned.)
    5
    6
    7
    8
    9
    10
    11
    12
    13
    14
    15
    16
    17
    18
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    22
    23
    24
    25
    TAB E
    Plaintiff’s First Amended Original Petition
    (CR 187-94)
    12/23/20141 :31 :16 PM
    Amalia Rodriguez-Mendoza
    District Clerk
    CAUSE NO. D-1-GN-14-004391                                   Travis County
    D-1-GN-14-004391
    GREGORY JOE WICKLJNE,                                §          lN THE DISTRICT COURT OF
    §
    Plaintiff,                            §
    v.                                                   §
    §
    THE BOARD OF REGENTS FOR THE                         §
    OKLAHOMAAGRICULTURALAND                              §
    MECHANICAL COLLEGES, acting for and on               §              TRAVIS COUNTY, TEXAS
    behalf of Oklahoma State University, and JAMES       §
    MICHAEL HOLDER, in bis individual capacity           §
    and in his capacity as Vice President for Athletic   §
    Programs and Director of Intercollegiate Athletics   §
    for Oklahoma State University                        §
    §
    Defendants,                           §              98TH JUDICIAL DISTRICT
    §
    PLAINTIFF'S FIRST AMENDED ORIGINAL PETITION
    TO THE HONORABLE JUDGE OF THIS COURT:
    COMES NOW Gregory Joe Wickline ("Coach Wickline") and hereby files this First
    Amended Original Petition against The Board of Regents for the Oklahoma Agricultural and
    Mechanical CoJJeges, acting for and on behalf of Oklahoma State University ("OSU") and
    James Michael Holder ("Holder") (collectively, the "Defendants"), and would show the
    Honorable Court the following:
    I. DISCOVERY LEVEL
    l.      Discovery in this case is intended to be conducted according to a Level lll
    discovery control plan under Rule 190.4 of the Texas Rules of Civil Procedure.
    II. THE PARTIES
    2.      Plaintiff Wickline is an individual residing in Travis County, Texas.
    3.      Upon information and belief, Defendant OSU is a publi.c educational institution
    organized under the constitution and laws of the State of Oklahoma, which conducts business in
    the State of Texas, but does not maintain a resident agent for service of process in the State of
    187
    Texas. Pursuant to Section 17 .044 of the Texas Civil Practice & Remedies Code, OSU may be
    served with process as follows:
    Oklahoma State University
    c/o Office of the Secretary of State
    Statutory Documents Section - Citations Uni.t
    P.O. Box 12079
    Austin, Texas 78711-2079
    The Secretary of State is requested to forward the citation to Defendant Oklahoma State
    University, attention General Counsel Steve Stephens, at its principal place of business:
    Oklahoma State University
    c/o Steve Stephens, General Counsel
    5th Floor - Student Union
    Stillwater, OK 74078-7044
    4.      Upon information and beliet: Defendant Holder is an individual residing in
    Oklahoma and the Vice President for Athletic Programs and Director of Intercollegiate Athletics
    for OSU, who conducts business in the State of Texas, but does not maintain a resident agent for
    service of process in the State of Texas. Pursuant to Section 17.044 of the Texas Civil Practice
    & Remedies Code, Holder may be served with process as follows:
    Mike Holder
    c/o Office of the Secretary of State
    Statutory Documents Section - Citations Unit
    P.O. Box 12079
    Austin, Texas 78711-2079
    The Secretary of State is requested to fotward the citation to Defendant Holder at his pri.ncipal
    place of business:
    Mike Holder
    202 Athletics Center
    Oklahoma State University
    Stillwater, OK 74078
    2
    188
    Ill. JURISDJCTION AND VENUE
    5.       This Court has personal jurisdiction over OSU, which purposefully availed itself
    of the privileges and benefits of conducting business in Texas. Defendants' wrongful acts that
    form the basis of Coach Wickline's claims in this petition occurred in Travis County, Texas.
    6.       The damages sought in this cause of action are within the minimum jurisdictional
    limits of this Court.
    7.       Venue is proper in Travis County, Texas, because all or substantially all of the
    events giving rise to Coach Wickline's claims occurred in Travis County. TEX. Clv. PRAC. &
    REM. CODE § 15.002(1). In the unlikely event Section 15.002(1) is not applicable, venue is
    proper in Travis County because Coach Wickline resides in Travis County and did so at the time
    of the accrual of his causes of action against Defendants.
    IV. FACTS
    8.       On or around January 2014, Coach Wickline was offered and accepted the
    position of Offensive Coordinator for the University of Texas at Austin's ("UT") football team.
    UT is an NCAA Division I-A institution. He and UT entered into an employment contract shortly
    thereafter (the "UT Contract").
    9.       As the Offensive Coordinator, part of Coach Wickline's duties is to call plays for
    UT's offense. Prior to accepting his position at UT, he was the Offensive Line Coach for OSU's
    football team.
    10.      However, Coach Wickline's employment contract with OSU provides that OSU
    will release Coach Wickline from the OSU Contract and any liability for liquidated damages, or
    otherwise, if Coach Wickline is offered and accepts a position as the "Offensive Coordinator
    (with play calling duties) at another NCAA Division I-A institution." UT is such an institution
    3
    189
    and Coach Wickline continues to be UT's Offensive Coordinator and continues to have "play
    calling duties."
    11.     Defendants, however, had no intention of letting their star 0 ffensi ve Line Coach
    go to UT. Indeed, shortly before UT offered Coach Wickline the Offensive Coordinator position,
    Defendant Holder told Coach Wickline that he would never release him from the OSU Contract
    because he was "the best offensive line coach in the country."
    12.     Despite knowing that OSU was required to release Coach Wickline from the OSU
    Contract and any obligation to pay liquidated or other damages, Defendants immediately began
    harassing and intimidating Coach Wickline with false allegations for the purpose of interfering
    with his ongoing employment with UT and his UT Contract.
    13.     On March 24, 2014, Holder sent a letter to Coach Wickline's UT office
    demanding that he immediately pay $593,478 in liquidated damages to OSU-an amount that
    exceeds Coach Wick.line's current yearly salary as UT's Offensive Coordinator. In that letter,
    Holder falsely claimed that Coach Wickline was not hired as UT's Offensive Coordinator and did
    not have "play calling duties."
    14.     Less than a month later, OSU sent another letter to Coach Wickline's UT office-
    this time attaching a draft lawsuit petition against Coach Wickline for the same amount plus
    interest, attorney's fees, and costs.
    15.     In response, Coach Wickline explained to OSU what it already knew: he was
    hired by UT as the Offensive Coordinator and that he, in fact, did have play calli_ng duties.
    16.     On May 6, 2014, OSU sent yet another letter to Coach Wickline's UT office. OSU
    not only claimed that Coach Wickline was lying about his position and duties at UT, but also
    alleged that UT was "attempting to aid" Coach Wickline in "avoiding the tem1s" of the OSU
    Contract by providing Coach Wickline with the "misleading title of Offensive Coordinator."
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    17.     On information and belief, OSU has filed a lawsuit in Oklahoma against Coach
    Wickline for liquidated and other damages. The lawsuit is baseless and its sole purpose is to
    interfere with Coach Wick.line's ongoing employment relationship with UT and the UT Contract.
    V. CAUSES OF ACTION
    TORTIOUS INTERFERENCE WITH AN EXISTING CONTRACT
    AGAINST BOTH DEFENDANTS
    18.     Coach Wickline restates and incorporates the allegations set forth in Paragraphs
    1- 16 as set forth fully herein.
    19.     As described above, through their campaign of harrassment, threats, and
    intimidation, Defendants have willfully and intentionally interfered with Coach Wickline's valid
    employment contract with UT.
    20.      As a direct and proximate cause of Defendants' tortious interference, Coach
    Wickline has suffered injury and mental anguish. At this time, Coach Wickline seeks damages in
    excess of $100,000 but not more than $200,000. See T EX. R. Crv. P. 47(c)(3).
    DECLARATORY JUDGMENT ACTION AGAINST OSU
    21.      Coach Wickline restates and incorporates the allegations set forth in Paragraphs
    1-20 as set forth fully herein.
    22.      OSU contends the contractual phrase "Offensive Coordinator (with play caUing
    duties)" means something other than the plain and ordinary meaning of those words. According
    to Coach Wickline 's contract with UT, he is UT's Offensive Coordinator and he has play calling
    duties. Pursuant to Chapter 37 of the Texas Civil Practice & Remedies Code, Coach Wickline
    requests a declaratory judgment construing this phrase according to its plain and ordinary
    meaning, consistent with the parties' intent, and declaring the rights and obligations of the parties
    accordingly.
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    23.     Coach Wickline also requests an award of reasonable and necessary attorney's
    fees and costs, pursuant to Texas Civil Practice & Remedies Code§ 37.009.
    VJ. JURY DEMAND
    24.     Pursuant to Rules 216 of the Texas Rules of Civil Procedure, Coach Wickline
    hereby requests a jury trial and tenders its fee in support of that request. Coach Wickline requests
    that this cause be placed on the Court's Jury Docket.
    Vil . PRAYER
    25.     WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully prays that
    Defendants be cited to appear and answer herein, and that upon a final hearing of the cause,
    judgment be entered for Coach Wickline against Defendants for damages in a reasonable amount
    within the jurisdictional limits of the Court, and declaring the parties' rights and obligations
    under the OSU Contract, together with pre-judgment interest (from the date of the injury through
    the date of judgment, at the maximum rate allowed by law), post-judgment interest at the legal
    rate, attorney's fees, costs of court, and such other and further relief to which Coach Wickline
    may be entitled at law or in equity.
    Respectfully submitted,
    BECK REDDEN, LLP
    By:     Isl David J. Beck
    David J. Beck
    State Bar No. 00000070
    1221 McKinney Street, Suite 4500
    Houston, Texas 77010
    Tel: 713-951-3700
    Fax: 713-951-3720
    Email: dbeck@beckredden .corn
    ggannaway@beckreddcn.com
    Christopher R. Cowan
    State Bar No. 24084975
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    515 Congress Avenue, Suite 1750
    Austin, Texas 78701
    Tel: 512-708-1000
    Fax: 512-708-1002
    Email: ccowan@beckredden.com
    Karson K. Thompson
    State Bar No. 24083966
    515 Congress Avenue, Suite 1750
    Austin, Texas 7870 I
    Tel: 512-708-1000
    Fax: 512-708-1002
    Email: kthompson@beckredden.com
    ATTORNEYS FOR PLAINTIFF
    GREGORY JOE WJCKLJNE
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    CERTIFICATE OF SERVICE
    I hereby certify that a true and correct copy of the foregoing was served on December 23,
    2014 on the following counsel ofrecord by email:
    HOWRY, BREEN & HERMAN, L.L.P.
    Sean E. Breen
    1900 Pearl Street
    Austin, Texas 78705-5408
    Email: sbreen@howrybrcen.com
    COUNSEL OF RECORD FOR DEJ\' ENDANTS
    Isl David J. Beck
    David J. Beck
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