### No. 03- 15 -00077- CV

I N T HE T HIRD C OURT OF A PPEALS A USTIN , T EXAS


### G REGORY 

### J OE 

### W ICKLINE 

### ,

Appellant ,
V 

### . B OARD OF 

### R EGENTS FOR THE 

### O KLAHOMA 

### A GRICULTURAL AND 

### M ECHANICAL 

### C OLLEGES 

### , ACTING FOR AND ON BEHALF OF 

### O KLAHOMA 

### S TATE 

### U NIVERSITY 

### ; AND 

### J AMES 

### M ICHAEL 

### H OLDER 

### , IN HIS INDIVIDUAL CAPACITY AND IN HIS CAPACITY AS 

### V ICE 

### P RESIDENT FOR 

### A THLETIC 

### P ROGRAMS AND 

### D IRECTOR OF 

### I NTERCOLLEGIATE 

### A THLETICS FOR 

### O KLAHOMA 

### S TATE 

### U NIVERSITY 

### , Appellees .
Appeal from the 98 th District Court of Travis County, Texas,

Trial Court Case No. D-1
- GN -1 4 -004391 

## R EPLY 

## B RIEF OF 

## A PPELLANT

B ECK 

### R EDDEN 

### LLP Karson K. Thompson State Bar No. 240 83966 kthompson @beckredden.com Christopher Cowan State Bar No. 24084975 ccowan@beckredden.com 51 5 Congress Avenue, Suite 1 90 0 Austin, TX 78701 (512) 708

- 1000 (512) 708

- 1002 (Fax) 

### B ECK 

### R EDDEN 

### LLP David J. Beck State Bar No. 00000070 dbeck@beckredden.com 1221 McKinney, Suite 4500 Houston, TX 77010 (713) 951

- 3700 (713) 951

- 3720 (Fax)



### C OUNSEL FOR 

### A PPELLANT 

### , G REGORY 

### J OE 

### W ICKLINE ACCEPTED 03-15-00077-CV 5096192 THIRD COURT OF APPEALS

AUSTIN, TEXAS 4/30/2015 10:35:01 AM JEFFREY D. KYLE

CLERKi T ABLE OF C ONTENTS P AGE 

### T ABLE OF 

### C ONTENTS



### ................................ ................................ ......................... i I NDEX OF 

### A UTHOR ITIES



### ................................ ................................ .................. ii I NTRODUCTION



### ................................ ................................ ................................ . 1 A RGUMENT IN 

### R EPLY


### ................................ ................................ ....................... 2 I. T HE FORUM

- SELECTI ON CLAUSE IS LIMITED IN SCOPE TO BREACH

- OF

- CONTRACT ACTIONS
. ................................ ........................... 2 II. C OACH W ICKLINE ’ S DECLARATORY ACTION DOES NOT SEEK
“ TO ENFORCE ” THE OSU C ONTRACT
. ................................ ..................... 5 III. C OACH W ICKLINE ’ S TORT CLAIM DOES NO T SEEK “ TO ENFORCE ” THE OSU C ONTRACT
. ................................ ............................ 7 

### C ONCLUSION 

### & P RAYER


### ................................ ................................ ................ 12 C ER TIFICATE OF 

### S ERVICE



### ................................ ................................ .............. 13 C ERTIFICATE OF 

### C OMPLIANCE



### ................................ ................................ ...... 14ii I NDEX OF A UTHORITIES C ASES Page(s) Aerus LLC v. Pro Team, Inc. , No. 3:04

- CV

- 1985

- M, 2005 U.S. Dist. LEXIS 8559 (N.D. Tex. May 9, 2005)

................................ ................................ ............... 10, 11 Corcovado Music Corp. v. Hollis Music, Inc. , 981 F.2d 679 (2d Cir. 1993)

................................ ................................ ................. 11 Daniels v. Dataworkforce, LP , No. 14

- cv - 00822

- KMT, 2014 WL 6657794 (D. Colo. Nov. 24, 2014)

................. 4 Excentus Corp. v. Gia nt Eagle, Inc. , No. 3:11

- CV

- 3331

- B, 2012 WL 2525594 (N.D. Tex. July 2, 2012)

.................... 10
In re AIU Ins. Co. , 148 S.W.3d 109 (Tex. 2004)

................................ ................................ ............... 5, 6 In re Counsel Fin. Servs. , No. 13

- 12

- 00151

- CV, 2013 WL 3895317 (Tex. App.

— Corpus Christi 2013, no pet.) (mem. op.)

................................ ......... 9 In re Tyco Elecs. Power Sys. , No. 0 5

- 04

- 018008

- CV, 2005 WL 237232 (Tex. App.

— Dallas Feb. 2, 2005, orig. proceeding)

................................ .............. 5 Penn, L.L.C. v. New Edge Network, Inc. , No. 03 C 5496, 2003 WL 22284207 (N.D. Ill. Oct. 3, 2003)

................... 1, 10, 11 Phillips v. Audio Active L td. , 494 F.3d 378 (2d Cir. 2007)

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

................................ ................................ ................................ . 6 Terraspan, LLC v. Rave, LLC , No. 3:12

- CV

- 0816

- K, 2012 U.S. Dist. LEXIS 174672 (N.D. Tex. Dec. 10, 2012)

................................ ................................ .................... 10iii

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

................................ ................................ .............. 2, 3, 9 Yates v. Fleetwood Transp. Servs., Inc. , No. 07

- 0960, 2007 WL 3146369 (W.D. La. Oct. 26, 2007)

................................ .. 4 S TATUTES T EX
. C IV
. P RAC
. & R EM
. C ODE § 37.003

................................ ................................ .... 61 I NTRODUCTION Wickline’s opening brief demonstrated that this lawsuit was properly filed in
Texas because Wickline’s claims do not fall within the scope of the forum

- selection clause in the OSU Contract. In response, the defendants mostly ignore the legal arguments and authorities raised by Wickline

. First , Wickline’s proffered interpretation of the forum

- selection clause is and has always been consistent with the law’s treatment of enforcement actions: “A
forum

- selection clause directed at actions ‘to enforce’ the contract is narrowly tailored to encompass breach

- of

- contract actions, not unrelat ed tort claims or requests for declaratory relief.” Appellant’s Br. at 9. Second , the defendants offer absolutely no response to Wickline’s well

supported argument that “enforcement” style clauses are much different than “arising under” style clauses

. Se e Appellant’s Br. at 6

– 9, 11

– 12. T he defendants continue to rely exclusively on cases employing this “arising under” logic, including the new case made the centerpiece of their brief

. See Penn, L.L.C. v. New Edge Network, Inc. , No. 03 C 5496 , 2003 WL 22284 207 , at *2 (N.D. Ill. Oct. 3, 2003) (“All disputes the resolution of which arguably depend upon the construction of an agreement ‘arise out of’ that agreement for purposes of a forum selection clause.” (internal quotation marks omitted)). Third , the defendants also refuse to acknow ledge that contract construction2

and contract enforcement are materially different as well. See Appellant’s Br. at
14

– 18. The forum

- selection clause is directed only at the latter, while Wickline’s declaratory judgment claim seeks only the former.
A RGUMENT IN R EPLY
I. T HE FORUM - SELECTION CLAUSE IS LIMITED IN SCOPE TO BREACH OF - CONTRACT ACTIONS . As Wickline argued in his opening brief, “[a] forum

- selection clause directed at action s ‘to enforce’ the contract is narrowly tailored to encompass breach

- of

contrac t actions, not unrelated tort claims or requests for declaratory relief.” Appellant’s Br. at 9. This is a common

- sense interpretation of the forum

- selection clause, and is consistent with the dictionary definitions offered by the defendants. Wickline’s int erpretation is also supported by state and federal case law, none of which is persuasively distinguished or rebutted by the defendants. First , n otably absent from the defendants’ brief is any mention of the Vankineni case, in which the Supreme Court of Al abama construed the scope of a n identical forum

- selection clause covering “[a]ny action to enforce a provision of” the parties’ contract. Vankineni v. Santa Rosa Beach Dev. Corp. II , 57 So.3d 760, 763 (Ala. 2010)

. 1 The court held that claims seeking rescission of the contract, as well as a declaration that the contract was invalid and unen forceable, did not fall

1 As Wickline previously explained, Vankineni should not be disregarded simply because it was decided under Alabama law. Alabama’s contract interpretation principles mirror those of Texas. See Appellant’s Br. at 8 n.3

. The defendants did not challenge this assertion.3

within the scope of that forum

- selection clause. Id. Relying on the exact Black’s Law Dictionary definition of “enforce” that the defendants here rely upon, the court explained that “[n]one of these claims involves the enforcement o f any provision of the purchase contract.” Id. at 762

– 63

. The defendant in Vankineni , Santa Rosa, made another argument the defendants here repeat: that “[t]he purchase agreement and its interpretation [are] central to each of the actions raised by [Vankineni and that] each of [his] claims flows from the existence of the contract.” Id. at 763. The court rejected that argument, too, noting that “to accept Santa Rosa’s argu ments, we would have 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. Vankineni is directly on point and logically sound. The defendants deal w ith
V ankineni by simply ignoring it. Wickline urges this Court to follow that well

reasoned decision and reject the defendants’ plea to have this Court rewrite the forum

- selection clause in their favor. Second , in attempting to distinguish the federal cas es Wickline cited in his opening brief, the defendants miss the purpose and relevance of those authorities. Discussing Daniels and Yates , two federal cases involving FLSA claims, the defendants explain that “the plaintiffs in each case were attempting to ‘ enforce’ rights derived by statute, not rights granted by the contract containing the forum

-4

selection clause.” Appellee’s Br. at 19 (citing Daniels v. Dataworkforce, LP , No.
14

- cv - 00822

- KMT, 2014 WL 6657794, at *2 (D. Colo. Nov. 24, 2014) ; Yates v. Fleetwood Transp. Servs., Inc. , No. 07

- 0960, 2007 WL 3146369, at *4 (W.D. La. Oct. 26, 2007) ). Wickline agrees

— and that’s the point. In this case, as in Daniels and Yates , Wickline is seeking to enforce a legal right to be free from interference in his business dealings. That right is granted by Texas law, not the OSU Contract.
D avis v. Lewis , 487 S.W.2d 411, 414 (Tex. Civ. App.

— Amarillo 1972, no writ) (recognizing the “general duty not to interfere with another’s business relations” under Texas law). Because Wickline would have that right even if the OSU Contract never existed, h e cannot, as a matter of law, be seeking “to enforce” any provision of the OSU Contract by suing for tortious interference. Third , the defendants now argue for the first time that the legal definition of the word “action” broadens the scope of the forum

- s election clause

. As the Texas Supreme Court recently recognized, “[t]he term ‘action’ is generally synonymous with ‘suit,’ which is a demand of one’s rights in court.” Jaster v. Comet II Constr.,
Inc. , 438 S.W.3d 556, 564 (Tex. 2014) (internal quotation ma rks omitted). This uncontroversial proclamation is not helpful to the defendants. It is the plaintiff who controls the scope of the action by filing the suit. Wickline could hav e sued to enforce the contract

— by suing for its breach

— but did not. The defenda nts do not cite a single authority defining the scope of an “action” in terms of the affirmative5

defens es raised by the defendant. Moreover , the defendants do not cite a single case interpreting the term “action” as used in a contract, but nevertheless jum p to the conclusion that the mere use of that word makes the forum

- selection clause here “broad indeed.” See Appellee’s Br. at 18. In addition , to the extent the defendants’ new arguments rely on this “action” language, those arguments still
rest on the fl awed conflation of “enforcement” style and “arising under” style forum

- selection clauses.
II. C OACH W ICKLINE ’ S DECLARATORY ACTION DOES NOT SEEK “ TO ENFORCE ” THE OSU C ONTRACT . Wickline’s opening brief explained the difference between contract
construction and contract enforcement, including case

- based examples of how forum

- selection clauses are usually drafted to capture each type of claim. See Appellant’s Br. at 14

– 18. In this case, the OSU Contract’s forum

- selection clause is plainly drawn to encompass only enforcement actions, not construction actions. The cases the defendants chose to rely on before the trial court on this point, AIU and Tyco Electronics , turned out to be useful examples of this distinction, even though neither case interpreted the scope of a forum

- selection clause. See In re AIU
Ins. Co. , 148 S.W.3d 109, 110 (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) . The forum

- selection clause in AIU , for example, specifically applied to disputes regarding “the meaning, interpretation, or operation” of any contract6

term , thus captur ing contract construction claims . 148 S.W.3d 109, 110 (Tex. 2004) . Wickline’s opening brief distinguished AIU and Tyco on these grounds. See Appellant’s Br. at 17

– 18. In their brief , the defend ants apparently abandon any reliance on those cases, relegating AIU to single, non

- substantive citation in a footnote and omitting Tyco altogether. Recognizing the weakness of the position a rgued to the trial court, the defendants offer another new argume nt on appeal: the Texas Declaratory Judgment Act’s “pl ain language” shows Wickline’s declaratory action is an attempt to enforce the OSU Contract. But the statute says nothing of the sort. Section 37.003 of the Texas Civil Practice and Remedies Code vests Texas courts with the power to render declaratory judgments. See T EX
. C IV
. P RAC
. & R EM
. C ODE § 37.003 (“Power of Courts to Render Judgment; Form and Effect”). Su b section (b) states that a declaratory judgment “has the force and effect of a final judgment.” Id. § 37.003(b). Although the words “force” and “effect” also appear in the dictionary definition of the phras e “enforce,” nothing in Section 37.003(b) says tha t an action construing a contract term is an action to enforce that contract. A declaratory judgment has the force and effect of a final judgment. It is not a judgment “to enforce” a contract. See Appellant’s Br. at 15

– 16 (citing Sacra v. Hudson , 59 Tex.
2 07, 208 (1883) ).7

Wickline s eeks a declaratory judgment as to the meaning of the disputed phrase “Offensive Coordinator (with play calling duties),” beca use the defendants interpret that phrase to include qualifiers not present in the unambiguous text (e.g., “exclusive”). A judgment from the trial court in Wickline’s favor on this claim will give the parties a legally enforceable construction of that term. It will not dismiss OSU’s separate lawsuit, nor will it force any party to do anything under the OSU
Contract . Because a judgment construing a contract term does not “ enforce ” that contract, Wickline’s declaratory judgment action is not covered by the for um selection clause.
III. C OACH W ICKLINE ’ S TORT CLAIM DOES NOT SEEK “ TO ENFORCE ” THE OSU C ONTRACT . Wickline is not suing the defendants to enforce the OSU Contract; he is suing the defendants for their efforts to tortiously interfere with his employment
contr act with The University of Texas. The defendants offer two substantive arguments on appeal: first, they argue that Wickline’s claim is a contract claim masquerading as a meritless tort claim; second, they argue their invocation of the affirmative defense o f justification “necessarily involve[s] the OSU contract” and
therefore makes this case an action to enforce it. See Appellee’s Br. at 24. Neither argument withstands scrutiny. As an initial matter, the defendants’ first argument is largely an irre levant attack on the merits of Wickline’s tort claim. See id. at 22

– 23 (arguing the8

defendants’ conduct was not tortious); id. at 23 (arguing Wickline has suffered no harm). An appeal of a motion to dismiss based on a forum

- selection clause is not the proper vehi cle for litigating the merits of that claim. The trial court never considered the merits of Wickline’s tort claim , and therefore the defendants’
merits

- based arguments are well outside the boun ds of this appeal and should be disregarded. To the limited ex ten t the defendants argue Wickline’s tort claim does not truly sound in tort, they are wrong. The defendants offer no response to Wickline’s invocation of the International Profit Associates case. Instead, the defendants resort to characterizing Wickline’s tort claim using phrases like “artful pleading,” “baseless,” “transparent attempt to avoid,” and “attempts to disguise.” See Appellee’s Br. at 22

– 23. Unlike the claim asserted in International Profit
Associates , where the consultant’s liability arose “fro m the contractual relationship between the parties, not from general obligations imposed by law,” Wickline’s tort claim is based on conduct that would have been tortious even without a contract.
See In re Int’l Profit Assocs., Inc. , 274 S.W.3d 672, 678 (Te x. 2009)

. The defendants also argue Wickline’s tort claim is covered by the forum

selection clause because the claim, along with the defendants’ justification defense, “necessarily involve[s] the OSU contract.” See Appellee’s Br. at 24. As the Court will recall, this is the exact argument rejected by the Alabama Supreme Court in9

Vanki n e ni , a case the defendants completely ignore. See 57 So.3d at 763 (rejecting the argumen t that “[t]he purchase agreement and its interpretation [are] central to each of the actions” and therefore within the scope of the forum

- selection clause). The court in Vankineni properly rejected that argument because it impermissibly expanded the scope of the forum

- selection clause from actions “to enforce” the contract to actions “arising under or relating to” the contract. Id. The few cases the defendants do discuss do not help their argument. For example, the defendants argue that “multiple courts ha ve held a contract’s forum

selection clause is triggered if the scope of the clause covers lawsuits involving a defense found within the contract containing the clause.” See Appellee’s Br. at 24. The support for this statement is a footnote containing a st ring cite to one Texas court of appeals case and four federal district court cases, three from Dallas and one from Illinois. Id. at 24 n.83. The Texas case, In re Counsel Financial Services , was distinguished by Wickline in his opening brief on the basis t hat its holding was tied to an extremely expansive forum

- selection clause, which “encompass[ed] all claims , including those that may only relate to the agreement.” See Appellant’s Br.
at 11

– 12 (quoting In re Counsel Fin. Servs. , No. 13

- 12

- 00151

- CV, 2013 WL 3895317, at *5 (Tex. App.

— Corpus Christi 2013, no pet.) (mem. op.) (clause applied to “each action

. . . arising out of or otherwise relating to this Agreement” (all emphasis added))). Wickline distinguished Excentus Corp. on the same10

grounds, be cause the court’s holding that the asserted claims “arose out of” the parties’ contract was tied to the forum

- selection clause’s “any action arising out of this agreement” language. See Appellant’s Br. at 12 (quoting Excentus Corp. v. Giant Eagle, Inc. , No . 3:11

- CV

- 3331

- B, 2012 WL 2525594, at *2 (N.D. Tex. July 2, 2012) ). The defendants never responded to the distinguishing features of these cases, but instead simply piled on more cases employing the same inapplicable logic. E.g. , Terraspan, LLC v. Rave, LLC , No. 3:12

- CV

- 0816

- K, 20 12 U.S. Dist. LEXIS 174672, at *3 (N.D. Tex. Dec. 10, 2012) (clause applied to “any action on a claim arising out of, under or in connection with this Agreement”). Only two cases cited by the defendants involve forum

- selection clauses without the extremely broad “aris ing under” style language. See Penn , L.L.C. , 2003 WL 22284207, at *1 (clause applies to “any action or suit to enforce any right or remedy of this agreement”); Aerus LLC v. Pro Team, Inc. , No. 3:04

- CV

- 1985

- M, 2005 U.S. Dist. LEXIS 8559, at *7 (N.D. Tex. May 9, 2005) (clause applies “[i]n the event either Party asserts a breach or default by the other under the terms of this Agreement”). Both of those cases are righ tly characterized as outliers because, despite the language of those contracts, both courts expressly invoked authorities interpreting “arising under” style clauses and wrongly applied their logic in reaching their decisions. See Penn, L.L.C. , 2003 WL 2228 4207, at *2 (“All disputes the resolution of which arguably depend upon the construction of an11

agreement ‘arise out of’ that agreement for pu rposes of a forum selection clause.” (internal quotation marks omitted)); Aerus LLC , 2005 U.S. Dist. LEXIS at *22 (“Claims that arise out of the contractual relationship and implicate the agreement are subject to the forum selection clause.” (internal quotation marks omitted)). That was judicial redrafting of the unambiguous plain text of those forum

- selection clauses. It is not enough, as t he Penn, L.L.C. court concluded, that a contractual defense “ involves a right or remedy under the contract,” and the court was only able to justify its holding by directly citing and relying exclusively upon cases interpreting broader, dissimilar forum

- sel ection clauses

. See 2003 WL 22284207,
at *2 (citing multiple cases interpreting “arising under” style clauses). In a line of copyright cases , the Second Circuit has repeatedly rejected the indefensibly broad approach to contract interpretation exemplified by cases like Penn, L.L.C. and Aerus, LLC . As the court explained, a contractual forum

- selection clause is not implicated by a non

- contractu al claim if the contract “is at most a defense” to the claim. Corcovado Music Corp. v. Hollis Music, Inc. , 981 F.2d 679, 683 (2d Cir. 1993)

. Stated another way, where the plaintiff “asserts no rights under a contract with the defendant containing a forum

- selection clause, the forum

selection clause has no effect.” Id. at 682; see als o 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 originate12

from, and therefore ‘arise o ut of,’ the contract.”). Here, Wickline asserts no rights under the OSU Contract , and the forum

- selection clause is therefore irrelevant

. C ONCLUSION & P RAYER For the foregoing reasons, 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.

Respectfully submitted,
B ECK R EDDEN 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 (Fax) Karson K. Thom

pson State Bar No. 240 83966 kthompson @beckredden.com Christopher R. Cowan State Bar No. 24084975 ccowan@beckredden.com 515 Congress Avenue, Suite 1 90 0 Austin , TX 78701 (512) 708

- 1000 (512) 708

- 1002 (Fax) A TTORNEYS FOR A PPELLANT , G REGORY J OE W ICKLINE13 C ERTIFICATE OF S ERVICE I hereby certify that on April 30, 2015 , a true and correct copy of the above and foregoing Reply Brief of Appellant was forwarded to al l counsel of record by the Electronic Filing Service Provider , if registered, and by email, as follows : Sean E. Breen H OWRY , B REEN & H ERMAN , L.L.P. 1900 Pearl Street Austin, Texas 78705

- 5408 Email: sbreen@howrybreen.com Counsel for Appellees

/s/ David J. Beck David J. Beck14 C ERTIFICATE OF C OMPLIANCE 1. This brief complies with the type

- volume limitation of Tex. R. App. P. 9.4 because it contains 2,741 words, excluding the parts of the brief exempted by Tex. R. App. P. 9.4(i)( 1 ).
2. This brief comp lies 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: April 30, 2015

.

/s/ David J. Beck David J. Beck C OUNSE L FOR A PPELLANT , G REGORY J OE W ICKLINE