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Case 0:15-cv-60581-WPD Document 8 Entered on FLSD Docket 03/24/2015 Page 1 of 24

UNITED STATES DISTRICT COURT


SOUTHERN DISTRICT OF FLORIDA
FORT LAUDERDALE DIVISION
JANE DOE, individually and for all others
similarly situated,
Plaintiff,
vs.
TEXAS A&M UNIVERSITY 12th MAN
FOUNDATION a/k/a THE 12TH MAN
FOUNDATION,
Defendant.

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No. 0:15-cv-60581-WPD
MOTION FOR ORDERS PURSUANT
TO RULE 23(d)(5) AND THE
INHERENT AUTHORITY OF THE
COURT
Expedited Relief Requested

Plaintiffs Motion for Rule 23(d)(5) Orders

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Pursuant to Federal Rule of Civil Procedure 23(d)(5) and the Courts inherent authority,
Plaintiff respectfully moves the Court to order on an expedited basis that Defendant Texas A&M
University 12th Man Foundation (Foundation) disclose to potential and recent purchasers of
seating rights at Texas A&M Universitys Kyle Field football stadium that certain Permanently
Endowed seating rights are in dispute in this litigation. The order is necessary so that the
equitable rights of Plaintiff and the Class to specific performance of their Permanently Endowed
Scholarship Program contracts with the Foundation are not disturbed by any claim of a bona fide
purchaser without notice.
Additionally, Plaintiff asks the Court to order the Foundation to cease and desist and
otherwise to refrain from its efforts to harass, intimidate, punish or disadvantage Plaintiff and the
Class Members for their expressed disagreement with, and actions to prevent or remedy, the
Foundations Reseating Plan for Kyle Field that is the basis of Plaintiffs Original Class Action
Complaint in this proposed class action.
As more fully developed below and in Plaintiffs Original Class Action Complaint, this
lawsuit concerns the Foundations unilateral abolition of lifetime stadium seating rights
bargained for by 494 major donors to the Foundation including Plaintiff Doe prior to the
Foundations unilateral decision to remodel and reseat the locations in Kyle Field in which the
1760 premium seats of the proposed class of Permanently Endowed Scholarship Donors had
long been established. The Foundations Reseating Plan denies Plaintiff and the Class two
promises that the Foundation kept for decades until now: 1) the right to an established seat
location within Kyle Field for the duration of their endowment agreements (lifetime or 30-year),
and 2) the right to maintain (and to improve) those established seat locations at no additional cost
for the duration of their endowment agreements. Plaintiff and the Class seek specific
performance of these promises.
Disclosure that the 1,760 seat locations at issue (out of 102,512 in the stadium) in this
lawsuit is necessary to preserve the equitable remedy of specific performance for breach of
contract to Plaintiff and the Class, and to achieve full disclosure to Foundation members, who

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are unaware that the seat locations they may be selecting are claimed to be subject to a superior,
pre-existing right of ownership, the resolution of which claim is one of the subjects of this
lawsuit. While the Foundation should want to protect its own interests by full disclosure to its
customers, see 501.204, Fla. Stat. Ann. (declaring deceptive acts or practices in the conduct of
any trade or business unlawful), Plaintiff asks the Court to order disclosure so that the
Foundations new purchasers of these disputed seating rights do so with full knowledge and thus
gain no equitable claim to the seats as bona fide purchasers without notice.
Protection of Plaintiff and the Class from intimidation and retaliation by the Foundation
is, unfortunately, also necessary. The legal rights of the parties before the Court cannot be fairly
determined under threat by one of retaliation against the other. Courts frequently control access
and the flow of information to potential class members to preserve the integrity of the legal
process.
The Courts acting on an expedited basis is necessary because the Defendants
Seating Selection process began March 16, 2015, and is ongoing. Each day, the highest
ranked donors of the Foundation are selecting their seats from the best, remaining seating
locations, some of which belong to Plaintiff and the Class. Thus, each day that passes the
rights of the Class to seek specific performance of the Endowment Agreement to regain their
established seating locations at Kyle Field may be diminished to the extent the new persons
could maintain that they acquired their seats in good faith without notice of the claims of
Plaintiff and the Class.
Activity Prior to This Filing
The Foundations goal from the very beginning has to been to string the Endowed Donors
along and continuously jerk them around until the Reseating Process began, at which point the
Foundation thought it would be home free from the claims of the Endowed Donors. A detailed
account of the despicable actions of the Foundation is contained in the Affidavit of Claude M.
McQuarrie III, Exhibit 4 hereto. Initially, certain Endowed Donors tried to resolve the issues with

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the Foundation informally, to no avail1. Finally in 2013, Endowed Donors began filing individual
state court actions. Eventually, a judge ordered all the cases to a global mediation in the Fall
of 2014. Id., at para. 25. The mediations did not begin until February 2015 and continued right
up to the impending March 16th deadline with no resolution in sight for some Endowed Donors.
Id.
Finally, Friday, March 6, 2015, at 5:00 p.m., negotiations broke off for three of the
Endowed Donors, who recognized they were not being dealt with in good faith. Those
Endowed Donors recognized they would have to take extraordinary action to protect their Seat
Locations and those of other fellow Aggie Endowed Donors, which was important to them.
Sammy D. York, Henry H. Holubec, Jr. and Gregory Hayes were forced to step forward and
seek injunctive relief.
They filed a Class Action Complaint and Motion for Temporary Restraining Order
(TRO) and Preliminary Injunction in the United States District Court for the Eastern District
of Texas. Judge Rodney Gilstrap of that court denied the TRO and Preliminary Injunction,
finding that those plaintiffs had not met the high standard for such extraordinary relief. York v.
Texas A&M 12th Man Foundation, No. 2:15-cv-00352-JRG, slip op. at 3 (U.S. Mar. 14, 2015)
(copy attached as Exhibit 1).
At the time of filing its Opposition to the Motion for TRO and Preliminary Injunction, the
Foundation filed a Motion to Dismiss for Lack of Jurisdiction and submitted credible evidence
that an exception to CAFA existed in that case, and Texas court lacked jurisdiction. Rather than
rush to non-suit, the York Plaintiffs researched whether the jurisdictional defect could be cured
by adding an out of state Plaintiff. The Foundations position is that Plaintiff Doe cannot proceed
in Florida with her case as long as the York case is pending. So, as the games continued, the
Foundation rushed and filed an answer in an attempt to keep the very case alive that the
Foundation said could not proceed in federal court in Texas. The York Plaintiffs, who do not

Affidavit of Claude M. McQuarrie III, Exhibit 4, para. 24.

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wish to waste the Texas courts resources, joined in the Defendants Motion to Dismiss and filed
their own Motion to Dismiss the Texas action. These motions are pending before the Texas
court.
Specific Relief Requested
Plaintiff moves the Court upon the allegations in her Original Class Action Complaint,
the following memorandum of law, and evidence in the affidavits attached to the Complaint of
the following participants in the Foundations Permanently Endowed Scholarship Program:
Plaintiff Doe (Complaint Exhibit 1) (sealed), Sammy D. York (Complaint Exhibit 7), former
Foundation Executive Committee member Henry H. Holubec, Jr. (Complaint Exhibit 8), and
Gregory R. Hayes (Complaint Exhibit 9), for orders:
1.
requiring Defendant 12th Man Foundation to disclose in writing prior to the time
of purchase and within 48 hours of the Courts order to the purchasers of seating locations in
the Redeveloped Kyle Field that correspond to the locations of Plaintiffs established seating
locations and to those of proposed Class members that the right to be seated at those locations
this year, and for the term of their 15-year endowment and thereafter, is disputed in this action
and subject to determination by the Court. Plaintiff asks the Court to order Defendant to mail
notice to purchasers and to provide notice in advance of purchase via notice posted or
appearing at mouse-click or hover-over selection of a disputed seating location on the
Foundations Seat Selection webpage;
2.
restraining Defendant 12th Man Foundation from its efforts to harass and
intimidate the Permanently Endowed Donors who object to the Foundations plan to reseat
Kyle Field; and
3.
ordering Defendant 12th Man Foundation to refrain from taking any action that
would punish or disadvantage Plaintiff or any other Permanently Endowed Donor by reason
of the bringing of this lawsuit.
As additional evidence in support of this relief, Plaintiff files with this motion the Affidavit
of Deborah Lawson detailing the threats made against her alumni group by the Foundation, when
the group was considering legal action against the Foundation to protect its three Endowed Seats.
See Exhibit 3, filed herewith. Other Foundation threats and intimidation are detailed in Mr.
Holubecs affidavit attached to the Complaint at Exhibit 8.
Finally, the Affidavit of Claude M. McQuarrie III filed with the Complaint at Exhibit 6

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is updated to include information about the history of related litigation and filed with this motion
as Exhibit 4.
Dated: March 24, 2015
Respectfully submitted,

PODHURST ORSECK, P.A


s/ JOHN GRAVANTE, III
Peter Prieto
John Gravante III
25 West Flagler Street, Suite 800
Miami, Florida 33130
(305) 358-2800
PPrieto@podhurst.com
JGravanteIII@podhurst.com

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DEBRA BREWER HAYES
CHARLES CLINTON HUNTER
700 Rockmead, Suite 210
Houston, TX 77339-2111
Telephone: (281)-815-4963
Facsimile: (832) 575-4759
dhayes@dhayeslaw.com
chunter@dhayeslaw.com
ATTORNEYS FOR PLAINTIFF

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MEMORANDUM IN SUPPORT OF MOTION FOR RULE 23(D)(5) ORDERS


Plaintiff asks the Court to protect her property interests and to protect the integrity of this
litigation by issuing orders pursuant to rule 23(d)(5) and the Courts inherent authority requiring
the Defendant Foundation to make certain disclosures and restraining the Foundation from
intimidating and punishing Plaintiff and Class members, either for voicing their objections to the
Foundations reseating plan, or for participating in this action.
Introduction
Plaintiff has sued Defendant for specific performance of her Permanently Endowed Donor
contract. As alleged in Plaintiffs Original Class Action Complaint, Ms. Does father contributed
over $30,000 to the Foundation to endow four seats in exchange for the best tickets to all Texas
A&M University (TAMU) football games, the best available seating and best available
parking at TAMUs Kyle Field, and admission to a pre-game buffetall at no charge other than
the endowment. Defendants Development Staff uniformly and consistently represented to
potential donors that they also could upgrade their seats during the term of their endowments
without additional charge, as other endowed seating locations became available through death or
attrition. Class Action Complaint (CAC) 2.
Over time, the stadium seats and parking spaces became more valuable, and the
Foundation concluded that it had made bad deals with the Permanently Endowed Donors, who the
Foundation believed had not continued to donate at levels of the new generation of Aggie alumni
that had come along. Thus, the Foundation began to erode the benefits bargained for by the
established Permanently Endowed Donors so that it could attract new and additional donations
from the next generation of the 12th Man donors. See Aggie Access Priority Point Program
described on the Foundations website page, printed at Complaint Exhibit 12. Ultimately, the
Foundation created a rewards and incentive structure called the Priority Points Program that it first
applied to parking, promising that it would not impact Endowed seating.

Recently, the

Foundation decided to remodel a portion of Kyle Field in which the Endowed seating is located

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and took that event as an occasion to break its promises and apply the Priority Points Program to
seating in the Redeveloped Kyle Field.
This lawsuit is brought because, despite Defendants rationalization of convenience,
Permanently Endowed Donors have not received full value for the financial sacrifices they made
long ago before Johnny Football Manziel boosted TAMUs Aggie football program into national
prominence.
Rather than grand-father the Class Endowed seating locations into its Reseating Plans
Seat Selection process2, the Foundation has required the Class to compete with new donors for the
seating rights promised to them in their Endowment Agreements. First, the Reseating Plan took
away the Seating Locations the Endowed Donors have held for years. Then, the Reseating Plan
required the Endowed Donors to make additional contributions to compete for ranking in the Seat
Selection process and thereafter to make substantial, additional and continuing annual payments
(called Capital Campaign Gifts and Annual Seat Contributions) to the Foundation just to be
eligible to watch Aggie football games from the Endowed seating locations that they had long ago
established as theirs. The Reseating Plan does not provide any guaranteed right for the Endowed
Donor to get their exact Seat Location, no matter what they pay. The Reseating Plan is not the
experience or the deal for which Plaintiff and the Class bargained with the Foundation.
Argument
Plaintiff and the Class are entitled to specific performance of the Endowment Agreement.
The Court has the power and the duty to protect this equitable right by ordering disclosures about
this litigation to participants in the Foundations Seat Selection process. The Court also has the
power and duty to protect the integrity of is processes from the threats, intimidation and
punishment of the Foundation leveled at putative Class members.

In contrast, the University of Texas at Austin honored its commitments to alumni with grand-fathered stadium
ticket pricing, but is restricting resale rights on those seats. See Stefan Scrafield, Longhorns football ticket prices
increase; best seats command hefty cost for new buyers, available at http://collegesportsblog.dallasnews.com/
2015/03/texas -increases-football-ticket-prices-by-six-percent-introduces-199-season-ticket-option.html/.

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I.

THE COURT HAS THE POWER AND DUTY TO ISSUE THE


REQUESTED ORDERS, AND GOOD CAUSE EXISTS FOR THEM
The Court may exercise its inherent powers or its broad discretionary powers under rule

23(d)(5) to protect the parties, class members and the Courts processes during this litigation both
before and after class certification. As a federal district court in Florida noted long ago:
It has long been recognized that a Court has the inherent power to enter such Orders
as may be necessary to the proper administration of the litigation before it. This
concept is embodied in Rule 23(d), Federal Rules of Civil Procedure, which provides,
inter alia, that the Court, in class actions such as these, may make appropriate orders:
(1) determining the course of proceedings * * * (3) imposing conditions on the
representative parties * * * (and) (5) dealing with similar procedural matters.
Peoples v. Wainwright, 325 F. Supp. 402, 403 (M.D. Fla. 1971) (issuing orders embodying the
ultimate relief sought in prisoner rights litigation pursuant to inherent powers and rule 23(d)(5)).
See also, Newberg, Orders in the Conduct of Class Actions: A Consideration of Subdivision (d),
in The Class ActionA Symposium, 1969, 10 B.C.Ind. & Com.L.Rev. 577.
The federal rules were amended in 1966 to state specifically that courts have the power
to issue orders to control class action litigation. See, 1796 Orders Relating to the Conduct of
Class ActionsOther Procedural Matters, 7B Fed. Prac. & Proc. Civ. 1796 (3d ed.) (Although
prior to 1966 there was no specific provision governing the courts power to issue orders
controlling the procedure in class actions, it generally was recognized that there was wide judicial
latitude in the management of class suits.). The only limitation is that a court cannot issue orders,
in the guise of managing the action, that actually substantially alter a partys ability to present the
merits of a claim or defense. Id.
The Court has the power and the duty to direct or restrict communications from the
Foundation to prevent interference with the proper administration of a class action and the
effectiveness of its remedial nature and to restrict conduct that abuses the rights of members of the
class. The Court may control any abuse of the class action process
as well at the precertification stage as after certification as a class action in view
of its supervisory power over and its special responsibility in actions brought as

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class actionsthe District Court would appear to have an ample arsenal to


checkmate any abuse of the class action procedure, if unreasonable prejudice to
absentee class members would result, irrespective of the time when the abuse arises.
Shelton v. Pargo, Inc., 582 F.2d 1298, 1306 (4th Cir. 1978). The Court is a fiduciary who must
protect the rights of absent class members. See, e.g., Burford v. Cargill, Inc., CIV.A. 05-0283,
2013 WL 4506224, at *7 (W.D. La. Aug. 21, 2013) (invalidating companies collection services
agreement with class members).
Courts have used rule 23(d)(5) to order the parties and their counsel to refrain from
contacting absent members of a class with regard to the litigation without the courts approval. See
cases cited in 7B Fed. Prac. & Proc. Civ. 1796 n.11 and discussion id., at 1794.
Moreover, good cause exists to issue the requested orders. Plaintiff and the members of
the proposed class need, as wells as the new purchasers, the Courts protection from the
Foundation. Once new seating rights are issued to unwitting purchasers, the situation will become
like that described by a court asked to order re-seating of a football stadium in Pittsburgh.
Moreover, we do not believe that greater injury would result from refusing rather
than granting Plaintiffs request for an injunction ordering Defendants to reissue
all seat licenses and all season ticket seats. To the contrary, the granting of such
injunctive relief would disturb the seating assignments of thousands of fans who
may be as satisfied with their seats as Plaintiffs are dissatisfied. Inevitably, this
would lead to the filing of additional lawsuits, prolonging the outcome of this
litigation.
Yocca v. Pittsburgh Steelers Sports, Inc., 806 A.2d 936, 946 (Pa. Commw. Ct. 2002), rev'd, 578
Pa. 479, 854 A.2d 425 (2004). Full disclosure of the claims made in this lawsuit to the
participants in the Foundations Seat Selection process will avoid such problems in the re-seating
of Kyle Field. In that way, expectations of the new purchasers will not become settled, and the
equitable rights of Plaintiff and the Class will not be diminished. As shown below, Plaintiff and
the Class have a strong case for specific performance that deserves protection by the Court. As
it is the Foundation who as acted in opposition to the settled expectations of the Permanently
Endowed Class, equity dictates that it fully inform participants in its Seating Selection process

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that the rights to 1760 seats in Kyle Field are in dispute.


Similarly, good cause exists for the Court to order Defendant not to attempt to influence
the outcome of this litigation via threats, harassment and punishment of parties and Class
members. The evidence adduced by Plaintiff in the affidavits of Deborah Lawson and Henry
Holubec is sufficient to find a likelihood of serious abuses. Ojeda-Sanchez v. Bland Farms,
600 F. Supp. 2d 1373, 1378 (S.D. Ga. 2009) (citation omitted). Actual harm need not proven,
id., although Ms. Lawson relates that the threats against her organization were harmful enough to
keep it from bringing the litigation it had considered against the Foundation.
II.

PLAINTIFFS ENTITLEMENT TO SPECIFIC PERFORMANCE


SHOULD BE PROTECTED AS AGAINST SUBSEQUENT PURCHASERS
Plaintiff asks the Court to order the Defendant Foundation to notify persons participating

in the Seat Selection process of this lawsuit and of Plaintiffs claims so that these participants
(and through them the Foundation) cannot later claim the equitable rights of a bona fide
purchaser without notice and thereby defeat specific performance.
Plaintiff and the Class are entitled to specific performance. They bought the right to
experience Aggie football from the vantage point of Permanently Endowed Donors. The
contractual rights of Plaintiff and the Class are peculiar and unique location rights akin to real
estate, for which specific performance is readily available. The Foundation has admitted the
existence of the Endowment Agreements, their terms and duration, and it has admitted that the
Reseating Plan breaches these agreements. The Foundation has no meritorious defense to
specific performance of its contract with Plaintiff and the Class.
A.

DEFENDANT HAS ADMITTED THE EXISTENCE OF


ENDOWED DONOR CONTRACTS AND THAT THE
RESEATING PLAN VIOLATES THOSE CONTRACTS

The history of the endowed donor program is summarized by the Foundation in its Parking
Report created in January 2005 (attached as Complaint Exhibit 5). In the report, the Foundation
admits the existence of the permanently endowed donor parking and seating benefits. On page

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10 of Parking Report, the history of the bargains made with Permanently Endowed Donors are
summarized.
The Foundations motivation for eroding Permanently Endowed Donor benefits is
explained on page 15 of the Parking Report as The perks from the Endowment Program have not
created incremental financial loyalty to the Athletic Program. The data provided shows the
opposite result.
A committee charged with studying the impact on Permanently Endowed Donors of the
Foundations Reseating Plan recommended that the rights of Permanently Endowed Donors be
preserved by grand-fathering them (Priority Point Task Force, February 1, 2006 meeting) but
the Foundations trustees overrode this recommendation. (Full Development Committee meeting,
February 24, 2006; see Complaint Exhibit 18.) The Foundation claims that its Reseating Plan is
fair and that the Permanently Endowed Donors should just be good Aggies and accept the
changes.
More specifically, over the years, the Foundation has made the following admissions
against its interests:
a. In a letter dated June 10, 1988, Defendant describes Mr. Yorks Permanently Endowed
Donors benefits to include four complimentary tickets to all A&M football games, buffets at
home football games and parking at all home games. This was the commitment of the Aggie
Club. (Emphasis added.) (Copy attached as Complaint Exhibit 7-B.)
b. In letter to Permanently Endowed Donor York dated October 10, 1991, and signed by
the Foundations Executive Director Harry J. Green, Jr., the Foundation admits the existence
of the 12th Man Foundations Permanently Endowed Scholarship Program and that it included
benefits for Plaintiff York of a 2-seat endowment to be honored during the lifetimes of Sammy
York and/or Cherisa York. (Copy attached hereto as Complaint Exhibit 7-D.)
c. In a Memorandum of Endowment Subcommittee Recommendations dated June 22,
2004, the Foundation admits the existence of endowments and discusses a buy-back program
and recommends that the upgrade benefits no longer be honored unless the endowed member
has a written agreement. (Copy attached hereto as Complaint Exhibit 14.)
d. In a letter dated March 3, 2005, Foundation Executive Director W. Miles Marks
discusses the benefits of Permanently Endowed Donors and grand-fathered seating for Kyle
Field not subject to change and how the suggested Priority Points System will not affect grand-

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fathered programs like that of the endowed donors. (Copy attached hereto as Complaint
Exhibit 16.)
e. In its February 24, 2006 Minutes of the Full Development Committee Meeting, written
and verbal promises having been made incident to endowment agreements are acknowledged.
(Copy attached hereto as Complaint Exhibit 18.)
f. In its April 7, 2006, Executive Committee Meeting Minutes the Foundation
memorializes its decision to deny appeals of Priority Point System decisions on oral promises
that lack other supporting documentation. (At item XII.) (Copy attached hereto as Complaint
Exhibit 19).
g. In its Q&A Points for Aggie Access Priority Points System at the Foundations Annual
Board Meeting on June 24, 2006, the Foundation notes in the response to Question 2 that cash
[rather than honor] drove the priority point system. (Copy attached hereto as Complaint
Exhibit 17.)
h. In its Recap of Development Committee September 12, 2006, Conference Call Minutes
the Foundation acknowledges agreements in place for lifetime endowments and considered
honoring its obligation by passing to beneficiaries actual parking spaces but decided instead to
pass priority points. (Copy attached hereto as Exhibit 5.)
i. 2007 Minutes of a Board meeting of the Foundation reveal in its last item that Priority
Points appeals have resulted in exceptions for certain Permanently Endowed Donors. (Copy
attached hereto as Exhibit 6.)
j. In Minutes of the September 28, 2007, Board of Trustees meeting, the Foundation
reports that it is the ninth highest in the nation for fundraising for athletics and the largest
endowment in the Big 12. The Priority Points program has been a success. The issues of
reassigning parking have been worked out, and no lawsuits have been filed.(Copy attached
hereto as Exhibit 7.)
k. Per the Minutes of a Foundation Budget Committee Meeting on August 26, 2008, the
Foundations Executive Director recommended that the Arkansas game in Dallas not be
included in the Permanently Endowed Donors complimentary, preferred seating tickets for
home and away games by designating the game as a neutral site. (Copy attached hereto as
Complaint Exhibit 20.)
l. Minutes of the Priority Seating Task Force on April 3, 2009, reveal that the Foundation
has no seating policy documents prior to 1985. In Mr. Taylors opinion the (unspecified)
policy changes made in 1991 did not give any right(s) to specific seat(s). Other comments
about a letter sent to all donors in 1991 do not appear to concern Permanently Endowed Donors
but instead all donors. Mr. Taylor acknowledges that the letter could create problems for
reseating. Mr. Sparks comments that the renovation [of Kyle Field] will mean new seats and
if a donor was always guaranteed the same seat, there could never be any stadium expansion

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or renovation. He states that the next step is to list groups with agreements and a fair and
equitable plan will be needed for seating. (Copy attached hereto as Complaint Exhibit 21.)
m. Minutes of the December 17, 2012, meeting of the Foundations Seating Committee
list various options (on page 2) for dealing with the rights of Permanently Endowed Donors,
and the Committee recommends that legal counsel be engaged. The options include: honoring
the endowment contracts; refunding endowment contributions; eliminating the endowed
seating program; and issuing credits to Permanently Endowed Donors to use for seating
options. (Copy attached hereto as Complaint Exhibit 23.)
n. Minutes of the April 3, 2013, Priority Seating Committee Endowed Members Meeting
show an appreciation by the Foundation that, in the collective opinions of its Permanently
Endowed Donors, the Foundations proposed reseating is altering or reducing benefits of
Permanently Endowed Donors; that the reseating process will significantly downgrade
Permanently Endowed Donors seating locations including continual downgrading of locations;
and a common theme among Permanently Endowed Donors is that the Foundation needs to
honor the agreement with Permanently Endowed Donors. (Copy attached hereto as Complaint
Exhibit 26.)
o. Foundation Board of Trustees April 4, 2013, meeting minutes, page 4, discuss the
anticipated reseating process, particularly as it affects Endowed Donors. There, referring to
the Endowed Donors (who have lifetime or 30 year term) benefits, it is stated, There are about
1,800 tickets for endowed donors and 1,300 are a lifetime seat location. See Exhibit 1 on
Affidavit of Claude M. Mcquarrie (attached hereto as Exhibit 4). The Foundation thus
admits, in the context of discussing the soon-to-be-announced Reseating Plan, that the
Endowed Donors have seat locations for life (in the case of donors whose purchased
benefits that were for life).
p. Foundation letter to Permanently Endowed Donors dated May 17, 2013, states that
500 unique endowed seat holders exist with approximately 1899 seats. The letter admits
the existence of agreements with the Permanently Endowed Donors but contends that the
privileges of the endowed seat holders vary widely. While the Foundation claims that it
intends to operate fairly, the letter goes on to describe how the Foundation will breach the
endowment agreements by unilaterally changing the performance it will render. (Copy
attached hereto as Complaint Exhibit 25.)
q. Email from Foundation President Skip Wagner dated May 29, 2013, acknowledges
existence of endowment agreements and his decision to allow Permanently Endowed Donors
to participate in the seat selection process so they could pay the going rate to remain in the
general location their seats are currently in. (Copy attached hereto as Exhibit 28.)
r. Email from Michael Solomon dated May 31, 2013, regarding Permanently Endowed
Donors Seat Holder Reconsideration and stating that allowing Permanently Endowed Donors
to pick first is doing the best job we can in honoring their agreement. (Copy attached hereto
as Exhibit 9.)

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s. Email thread among Foundation leaders with seating option table on page two showing
the West Legacy Club and other desirable locations sold out as of August 22, 2013. (Copy
attached hereto as Exhibit 10.)
t. Board of Trustees Meeting Minutes dated September 6, 2013, and indicating on page
3 that out of 495 Permanently Endowed Donors accounts, 353 paid additional money to the
Foundation as a result of its Reseating Plan (indicating the number of Class members entitled
to incidental monetary relief). (Copy attached hereto as Complaint Exhibit 15.)
These admissions by the Defendant Foundation establish the existence of endowment
agreements, the terms of the agreements, the duration of the agreements, and that the Foundation
knowingly reneged on its obligations to the Permanently Endowed Donor Class under the excuse
of seizing an opportunity to raise more money from a new generation of Aggie donors and with
little regard for how its so-called fair reseating plan breached the Endowment Agreements,
dishonoring Texas A&M University and the Aggie community.
B. THE FOUNDATIONS RESEATING OF ENDOWED
SEATS CONSTITUTES BREACH OF CONTRACT
As noted above, the Foundation acknowledged that the contract rights of Plaintiff and of
the proposed Endowed Donor class could create problems for reseating. The Foundations
unilateral decisions to deliver less and less on the benefits it sold to Plaintiff and the class for the
purchasers lifetimes (or in some instances, for 30 years) and to charge the Endowed Donors for
benefits that were already paid for constitutes breach of the Foundations Endowment contract.
A strikingly similar case was recently decided in a donors favor by the Supreme Court of
South Carolina. In Lee v. Univ. of S. Carolina, 407 S.C. 512, 757 S.E.2d 394 (2014), rehg
denied (May 7, 2014), a season ticket holder brought a declaratory judgment action against a
state university and university donor club seeking determination of whether actions by the
university and the club constituted breach of the contract between the parties. The contract
provided the ticket holder the opportunity to purchase tickets to football and basketball games for
his lifetime in exchange for naming the university the sole, irrevocable beneficiary of a $100,000
life insurance policy.

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A dispute arose when the club later unilaterally imposed a seat license fee in addition
to ticket costs, just as the Foundation, here, has added its additional and substantial charges that
have priced-out Plaintiff and the Class from their established seating locations in Kyle Field.
The excuse the club used to justify its imposition of the extra fee was that the life insurance
policy for which it had bargained had not realized the intended $100,000 face value. That is, the
club imposed the extra fee because it, like the Foundation, later thought it had made a bad deal
with the donor. Id. at 515-16, 757 S.E.2d at 369-97.
The South Carolina Supreme Court ruled that the clubs unilateral attempt to modify the
Agreement is impermissible. [because] once a bargain is formed, and the obligations set, a
contract may only be altered by mutual agreement and for further consideration. Id., at 518, 757
S.E.2d at 398 (internal quotations and citation omitted); accord St. Joe Corp. v. McIver, 875 So.
2d 375, 382 (Fla. 2004). The court held that the club was required to allow the season ticket
holder the opportunity to purchase tickets without being subject to the payment of a seat license
fee that was not part of the original bargain.
In the case at bar, the Foundation has literally tried to bully the Permanently Endowed
Donors into accepting a new seating deal without the Endowed Donors consent and without
consideration to the Endowed Donors for what the Foundation wants to take from them. The
Foundations Reseating Plan and the Seat Selection Plan that commenced on March 16, 2015,
breaches the Permanent Scholarship Endowment Agreement made between the Foundation and
Plaintiff and the members of the proposed Class. See Am. Airlines, Inc. v. Wolens, 513 U.S. 219
(1995) (retroactive modification of frequent flyer program actionable as breach of contract).
C. IMPOSSIBILITY DOES NOT EXCUSE THE FOUNDATIONS
BREACH, AND THERE HAS BEEN NO UNDUE DELAY
The Foundation has attempted to justify its breach of the Endowment Agreement by
claiming that the Endowed Donors seats in Kyle Field no longer exist, but instead have been
replaced by new, more luxurious and fewer seats. Thus, the Foundation claims that further

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performance by it under the Endowment Agreements is impossible or unfair. Obviously,


unfair is not a defense to breach of contract regardless how bad the deal turns out for one of
the parties.
Moreover, the Foundations argument is entirely disingenuous. In the individual cases
filed against it in Texas, the Foundation located seats closely related to the Endowed Donors
previous seating locations and pulled those from the Reseating Plan and Seat Selection process
while settlement negotiations ensued. Thus, it is possible to specifically redress the Plaintiff and
the putative Class Members rights.
In any event, impossibility of performance is not available as a defense to a party who by
its voluntary act created the impossibility. Solomon v. Greenblatt, 812 S.W.2d 7, 18 (Tex.App.Dallas 1991, no writ) (citing Martin v. Star Publishing Co., 126 A.2d 238, 242 (Del.1956) and 6
S. Williston: A Treatise on the Law of Contracts 1960). Stafford, 231 S.W.3d at 537.
In Florida, impossibility of performance is a defense to nonperformance and refers to
situations where the purpose for which the contract was made has become impossible to
perform. Spring Lake NC, LLC v. Figueroa, 104 So.3d 1211, 1216 (Fla. 2d DCA 2012). When
determining impossibility, courts focus on whether an unanticipated circumstance has made
performance of the promise vitally different from what should reasonably have been within the
contemplation of both parties when they entered into the contract. Ferguson v. Ferguson, 54
So.3d 553, 556 (Fla. 3d DCA 2011) (quoting 6 Williston, Contracts (Rev. ed.) 1931 (1938)).
Where the risk was foreseeable when the agreement was made and could have been expressly
addressed in the agreement, [t]he doctrine of impossibility of performance should be employed
with great caution. Am. Aviation, Inc. v. AeroFlight Serv., Inc., 712 So.2d 809, 810 (Fla. 4th
DCA 1998).
Even where performance actually becomes impossible after execution of the agreement,
the doctrine cannot be invoked as a defense if knowledge of the facts making performance
impossible was available at the inception of the agreement to the party claiming impossibility.
Zephyr Haven Health & Rehab Ctr., Inc. v. Hardin ex rel. Hardin, 122 So. 3d 916, 920 (Fla. 2d

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DCA 2013) review denied sub nom. Hardin v. Zephyr Haven Health Rehab Ctr., 135 So. 3d 287
(Fla. 2014) (citations omitted).
A football stadium is not a permanent structure. At the time of entering the Permanent
Endowment Scholarship Program agreements with Plaintiff and Class members, the Foundation
knew or should have known that repairs, remodeling and additions were likely within the
lifetimes of Plaintiff and Class members and their Permanently Endowed Donor children.
Moreover, any remodeling that did not provide enough seating for existing Permanently
Endowed Donors (if this Foundation claim is true) is the sole fault of the Foundation. Thus, any
claim by the Foundation that it cannot allow Plaintiffs to retain their seat locations because they
no longer exist and have been replaced with fewer, nicer seats is without merit.
Moreover, undeniably, the Permanently Endowed Donors seating locations still exist. The
redeveloped Kyle Field will have a 50 yard line, a west side, three decks, and rows of seats
located on all three decks at various yard lines that correspond with the Permanently Endowed
Donors established seat locations. Plaintiffs and the Class established seat locations will still
exist and will still rightfully belong to them. And, Plaintiff will still be entitled to these seats for
free throughout her lifetime.

The remedy to this situation caused by the actions of the

Foundation is to grand-father Plaintiff and the Permanently Endowed Class, an option


considered but discarded by the Foundation in its lust for cash from the new generation of
Aggie alumni.
In the Texas case, the Foundation had the nerve to argue to Judge Gilstrap that the
plaintiffs there had waited too long to sue. As detailed above and in the Affidavit of Claude M.
McQuarrie III (Exhibit 4 hereto), it is the Foundation who has delayed and forced this latest
effort of the Class for justice.
If any Class member has delayed, it is not the unreasonable delay that constitutes laches.
The Foundation has not done anything or made any expenditure that it would not have made had
the Class acted more promptly. See, e.g., De Huy v. Osborne, 118 So. 161, 164 (Fla. 1928)
(laches prevents purchaser from acceptance of deed seven months after failed tender and after

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vendee made substantial improvements in reliance on the default). Neither Plaintiff, nor the
Class, has delayed speculating on a price increase of the asset. Cf. Perry v. Benson, 107 So. 2d
213, 215-16 (Fla. 2d DCA 1958).
The Foundation has no meritorious defense to breach of contract.
III.

PLAINTIFF FACES LOSS OF EQUITABLE RIGHTS UNLESS


PARTICIPANTS IN THE FOUNDATIONS SEAT SELECTION
PROCESS ARE FULLY INFORMED OF THE CLAIMS MADE IN
THIS LAWSUIT
Plaintiff asks the Court to protect her property interest3 and that of the Class by ordering

the Foundation to disclose to persons who have participated or will participate in the Seat
Selection process the existence of this litigation and the nature of Plaintiffs claims. Disclosure is
necessary to preserve Plaintiffs equitable right to specific performance of the Endowment
Agreement against claims of that participants in the Foundations Seat Selection process acquire
stadium seating rights as bona fide purchasers without notice.
A. SPECIFIC PERFORMANCE IN FLORIDA
The granting or withholding of a decree for specific performance is a matter within the
sound judicial discretion of a court of equity, controlled by settled principles of law and equity
applicable to the particular facts. Robinson v. Univ. of Miami, 100 So. 2d 442, 444-45 (Fla. 3d
DCA 1958). In Florida, specific performance of a contract is a matter of equitable cognizance as
applied both to real and personal property, and where, in the case of personal property, it is of a
peculiar character and value, specific performance will be granted. Fraser v. Cohen, 31 So. 2d
463 (Fla. 1947).

The Foundation treats rights under the Endowment Agreement as property that is transferable within the Endowed
family. See Seating Options, Terms Available at http://kylefield.com/seating (last visited March 8, 2015) (The
donor of record may transfer the rights to the seats for the remaining years of the term to their spouse or their lineal
ascendants or descendants. (Note: Priority Points are not transferrable.)). And, in Texas, tickets to sporting events
are community property subject to division in divorce proceedings. Warriner v. Warriner, 394 S.W.3d 240, 248
(Tex. App.El Paso 2012, no pet.) (Texas Christian University football season tickets). Similarly, contract rights
represented by points systems are valuable personal property. In re Marriage of C.A.S. & D.P.S., 405 S.W.3d 373,
388 (Tex. App. 2013), rehg dismissed (Aug. 6, 2013) (airline reward miles and hotel points).

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Also, when the value of the property involved is uncertain or not readily ascertainable in
the open market, or if the damages resulting from the breach of the contract are too uncertain or
indefinite, specific performance will be granted. Damages in a law action cannot be speculative
or conjectural, but must be reasonably ascertainable. Hogan v. Norfleet, 113 So. 2d 437, 439
(Fla. 2d DCA 1959).
Thus, Florida courts have decreed specific performance of a contract granting an
exclusive franchise to export bananas. Fraser v. Cohen, 31 So. 2d 463 (Fla. 1947) (peculiar
character found in all the bananas delivered for export at two named ports in the Dominican
Republic). Similarly, due to the limitations respecting the number and location of liquor
establishments and the conditions under which the license is issued, a liquor license has come to
have the quality of property such that specific performance lies. House v. Cotton, 52 So. 2d 340,
341 (Fla. 1951)).
In Lewis v. Arthur, 72 So. 2d 397 (Fla. 1954), the court ordered specific performance of a
contract for purchase of corporate stock of a closed or closely held corporation relying on the
reasoning of McCutcheon v. Nat'l Acceptance Corp., 197 So. 475, 478 (Fla. 1940) (specific
performance lies because such stocks that have no recognized market value, or [] are not readily
procurable except from the defendant). Accord: Baruch v. W. B. Haggerty, Inc., 188 So. 797,
799 (Fla. 1939).
Perhaps the uniqueness of the location was the basis for the courts grant of specific
performance in Legg v. Hill, 42 So. 2d 168, 169 (Fla. 1949), where suit was brought to enforce
an option for the purchase of a restaurant.
Sale of businesses including franchises and good will have frequently been the subject of
specific enforcement in equity. Hogan v. Norfleet, 113 So. 2d 437, 439 (Fla. 2d DCA 1959)
(citing 49 Am.Jur. 151 and Annotation in 152 A.L.R. 4). The reasons advanced for decreeing
specific enforcement are that franchises and good will of a business or the value of a going
business and the profits involved cannot be readily ascertained and the estimation of value would
be so indefinite that recovery would not furnish a complete and adequate remedy at law. Id.

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(citing Chamber of Commerce of Hot Springs v. Barton, 195 Ark. 274, 112 S.W.2d 619 (1937)
(sale of radio stations); Garber v. Siegel, 194 Misc. 966, 87 N.Y.S.2d 597 (Sup. Ct. 1948)
modified, 274 A.D. 1068, 86 N.Y.S.2d 456 (App. Div. 1949) (carbonated beverage route and
business); Sw. Pipe Line Co. v. Empire Natural Gas Co., 33 F.2d 248 (8th Cir. 1929) (contract to
sell merchantable natural gas).
B. SPECIFIC PERFORMANCE IN THE CASE AT BAR
Specific performance is appropriate in the case at bar. A lifetime, prepaid seating
location in the same, upgradeable location in the Endowed Seating area among other
Permanently Endowed Donors in the football stadium of ones college alma mater is locationspecific personal property of a unique and peculiar nature, such that damages are not an adequate
remedy under Florida jurisprudence. The certainty of the enjoyment of this experience over a
lifetime cannot be replaced with money and cannot be matched week after week by purchasing
game tickets on Stub Hub (if a ticket is available) for a random set of seats. Stub Hub does not
allow one to plan a seasons worth of Aggie football game experiences. In any event, the
Endowed Donor Aggie football game experience purchased from the Foundation by Plaintiff and
the Class is so unique and peculiar that it cannot be monetized.
The unique and peculiar character of sporting events was recognized in a case brought
over the disqualification of the University of Washington from PAC-10 games, including the
bowl game, for two years. The court ruled that, while the players claimed loss of the benefits
associated with playing in a bowl game (airfare, hotel expenses and the like) can be ascertained
to the penny, their claims regarding the right to attend a bowl game in 1994 cannot be
quantified. The latter are cognizable in equity. Hairston v. Pac.-10 Conference, 893 F. Supp.
1485 (W.D. Wash. 1994), as amended (Dec. 19, 1996), aff'd sub nom. Hairston v. Pac. 10
Conference, 101 F.3d 1315 (9th Cir. 1996).4

Cf. Yocca v. Pittsburgh Steelers Sports, Inc., 806 A.2d 936, 946 (Pa. Commw. Ct. 2002), rev'd on other grounds,
578 Pa. 479, 854 A.2d 425 (2004) (claim that fan was charged higher Club I price for seats that were really Club II
seats can be adequately compensated by money damages); Brotherson v. Prof'l Basketball Club, L.L.C., 604 F. Supp.

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Not only are the Endowed Seating rights peculiar and unique, their value is impossible to
ascertain. Like the stock in the McCutcheon case, Endowed Seats may be procured only from
Defendant. Stub Hub does not sell them. And because the Foundation can change the pricing of
the extra charges and add additional fees and charges at whim, Affidavit of Claude M.
McQuarrie III 15 (Exhibit 4 hereto), the value of Plaintiffs loss cannot be determined with any
degree of certainty today. Thus, the only complete remedy for Defendants breach of the
Permanent Endowment Agreements is specific performance.
Conclusion
We all know money rules college football. At the intersection of money and morality, a
strong moral compass is required. Unfortunately, increased emphasis on fundraising has been
allowed to trump honor at the Foundation, whose trustees have knowingly chosen to ignore the
promises it made decades ago to (and until recently, performed for) its most loyal members in
return for their substantial payments. Plaintiff asks the Court to issue orders preserving her right
to seek specific performance by notifying Seat Selection participants of her claims and those of
the Class, and also to order the Foundation not to communicate threats or punish objectors to its
Reseating Plan, so that the legal processes of the Court are maintained.
Dated: March 24, 2015

Respectfully submitted,
PODHURST ORSECK, P.A
s/ JOHN GRAVANTE, III
Peter Prieto
John Gravante III.
25 West Flagler Street, Suite 800
Miami, Florida 33130
(305) 358-2800
PPrieto@podhurst.com
JGravanteIII@podhurst.com

2d 1276, 1293-94 (W.D. Wash. 2009) (season ticket holders were not interested in attending games transferred to
another city, but only sought tickets to resell).

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THE HAYES LAW FIRM, PC


DEBRA BREWER HAYES
CHARLES CLINTON HUNTER
700 Rockmead, Suite 210
Houston, TX 77339-2111
Telephone: (281)-815-4963
Facsimile: (832) 575-4759
dhayes@dhayeslaw.com
chunter@dhayeslaw.com
ATTORNEYS FOR PLAINTIFF

CERTIFICATE OF SERVICE

I hereby certify that Randel Howard, the Registered Agent for Service of Process of the
Defendant Foundation, was served with summons and complaint on March 24, 2015. The
Process Servers return of service is expected to be available for filing with the Court on March
24, 2015.
A courtesy copy of this motion was served on March 24, 2015, on counsel for the
Foundation in the Texas federal action by electronic mail, as follows:
Layne E. Kruse (State Bar No. 11742550)
layne.kruse@nortonrosefulbright.com
Randall S. Richardson (State Bar No. 24027658)
randall.richardson@nortonrosefulbright.com
Otway Denny (State Bar No. 05755500)
otway.denny@nortonrosefulbright.com
NORTON ROSE FULBRIGHT US LLP
1301 McKinney, Suite 5100
Houston, Texas 77010
Telephone: (713) 651-5151
Telecopier: (713) 651-5246
s/ Charles Clinton Hunter
____________________________
Charles Clinton Hunter, declarant

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