D's Motion to Dismiss Skip's Affidavit

Exhibit A

Case 0:15-cv-60581-WPD Document 30-1 Entered on FLSD Docket 04/24/2015 Page 1 of 12

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

FORT LAUDERDALE DIVISION

CASE NO. 015-cv-60581-WPD

BARBARA BRUNNER Plaintiff,

v.

TEXAS A&M UNIVERSITY 12TH MAN FOUNDATION a/k/a THE 12TH MAN FOUNDATION,

Defendant.

DECLARATION OF IRVEN E. SKIP WAGNER

I, Irven E. Skip Wagner, make the following declaration under 28 U.S.C. 1746.

1. My name is Skip Wagner. I am over the age of twenty-one (21) years and am competent to complete this declaration. The facts stated in this declaration are true and correct, and I have personal knowledge of these facts.

2. I am a resident of College Station, Brazos County, Texas. I am currently the President of the Texas A&M University 12th Man Foundation. The Texas A&M University 12th Man Foundation (the Foundation) is a Texas nonprofit corporation with its principal place of business in College Station, Texas.

3. In preparing this declaration, I have referred to the business records of the Foundation, of which I am a custodian. I have personal knowledge about how the Foundations business records are collected and maintained. The records to which I have referred (a) were made at or near the time of the events they record, (b) were made by or from information transmitted by a person with knowledge of the events they record, and (c) were kept in the ordinary course of the Foundations business. It was the regular practice of the Foundations business to make those records.

4. The Foundation is a Texas nonprofit corporation established under the laws of the State of Texas. The Foundations principal place of business and only office is located in College Station, Texas, on the campus of Texas A&M University. All of the Foundations employees are located in College Station, Texas. The Foundations entire business operation is conducted out of its office in College Station, Texas and all of its business records are located in College Station, Texas. All prospective witnesses in the captioned matter (other than Plaintiff) are located in Texas.


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5. Nearly all of the Foundations activities, including ticket sales, fundraising, advertising, and outreach occur in Texas. The Foundation does not operate, conduct, engage in, or carry on a business venture in Florida through Texas A&M Universitys participation in the Southeastern Conference (SEC). The Foundation is not a member of the SEC. The SEC is not a principle or agent of the Foundation. The Foundation does not act in concert with other members of the SEC to advertise or promote in Florida SEC athletic contests, to sell tickets in Florida to SEC events held in Florida, or to assist in athletic contests involving Texas A&M University athletes being played in Florida.

6. The Foundation directs no activity towards the Florida market except to the limited extent it provides correspondence and tickets to the very small number of non-endowed donors that reside in Florida. Tickets to athletic events in Florida are provided to the Foundation by Texas A&M Universitys Athletic Department.

7. The Foundation does not sell or license the sale of merchandise or other services related to Texas A&M University athletic events in Florida. The Foundation does not exploit the Texas A&M University name, logo, or other intellectual property on sportswear or other merchandise in Florida.

8. The Foundation has no interaction with potential athletic recruits. The Foundation is not involved with and does not assist in the preparation or management of recruiting trips in Florida. The Foundation generally provides funding to the Texas A&M University Athletic Department but does not determine how such funding is allocated.

9. The Foundation does not specifically maintain a program for soliciting donations from persons in Florida. The Foundation may contact a very small number of non-endowed donors that reside in Florida and correspond with these donors regarding donations at their Florida address. However, the overwhelming majority of solicitations by the Foundation occurs in Texas.

10. The Foundation, Kyle Field, and all of the parking and seating areas described in Plaintiffs Corrected Amended Complaint are located in College Station, Texas. Texas A&M University home football games are played at Kyle Field, and will be played in the redeveloped Kyle Field, which are both located in College Station, Texas. Kyle Field is owned by Texas A&M University, which is an arm of the State of Texas, and Kyle Field is considered property of the State of Texas.

11. The pre-game buffet that occurs before home football games takes place in College Station, Texas. The Aggie Access Points System (also called the 12th Man Foundation Priority Points System) discussed in Plaintiffs Corrected Amended Complaint is and was, at all times, administered out of the Foundations office in College Station, Texas. All decisions to create, develop, and implement the Priority Points Program were made in Texas. All decisions regarding the implementation of the Redevelopment of Kyle Field, including the reseating were made in Texas. The west side of Kyle Field is where almost all endowed donors previously sat.

12. Plaintiffs current addresses according to Foundation records are in Texas. Foundation records show that Plaintiff is associated with various Texas addresses. All


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correspondence that is mailed to Plaintiff is mailed to one of these Texas addresses. Attached as Exhibits 1-3 to this declaration are true and correct copies of Foundation correspondence that were attached to Plaintiffs First Amended Complaint as Exhibits B, C, and E to Exhibit 1, respectively. To date, the Foundation has no record that Plaintiff has provided a Florida address or requested to update her contact information. The Foundation has no records that show any correspondence was mailed to Plaintiff at a Florida address.

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I dccJarc under penally of pcryury that the foregoing is true and correct.

Executed on April .Z,!f-, 2015.

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Exhibit 1


1! September 14, 1983

Miss Barbara A. Brunner 1407 Hamlin Valley Drive Houston, Texas 77090

Dear Miss Brunner:

We would like to make the presentation of your 12th Man Permanently Endowed Scholarship plaque at a pre-game ceremony prior to the University of Houston game on October 8th. Please let us know by September 28th if you will be present. Detailed information will be sent after that date to those who plan to attend.

We look forward to seeing you on campus at that time.

HJG/jcp

;~::.:1rul~y, urz~vU/f~. Harry J. G ee , Jr. Executi e Dir ctor

AGGIELAND STATION, COLLEGE STATION, TEXAS 77844

I I ( I

I I I I


Exhibit 2


THE AGGIE CLUB P. 0 . DRAWER L-1

AGGIELANO STATION COLLEGE STATION, TEXAS 77844

(409) 846-8892 EXECUTIVE OFFICES

ON JOE ROUTT BOULEVARD BETWEEN G. AOLLIE WHITE COLISEUM AND DEWARE FIELDHOUSE

Michael J. Brunner 2907 Cedar Placid Circle Houston, TX 770681421

Dear Michael:

November 14, 1988

Our records indicate that we have received 5,500.00 toward the 30,000.00 commitment you made in 1985, leaving you with a remain-ing balance of 24,500.00. At the time of your commitment, the endow-ment was to be fully funded in three years. Since that time you have received benefits amounting to 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. With these commitments, The Aggie Club must have contributions from those who have made commitments to The Aggie Club since it is in the business of fund raising.

As a result, at their September meeting The Aggie Club Executive Committee discussed the endowment program and those who had not fulfilled their commitment. These were discussed by dollar amounts and not by names. The Committee passed a motion and gave me the charge to write those who had an outstanding commitment to advise them that they have until December 31, 1988 to :fulfill their commit-ment.

If you cannot pay the entire $30,000 by that date but have al-ready contributed $20,000 by December 31, you will receive the bene-fits of a two-seat endowment. This two-seat endowment can then be raised to a four-seat endowment by a contribution of an additional $20,000 over four years pursuant to the present endowment program if this commitment is made prior to any subsequent increase in the amount of a 12th Man Permanently Endowed Scholarship. If you have not contributed a total of $20,000 by December 31, the privileges of your endowment will be suspended until your contributions total $20,000. If your endowment becomes a two-seat endowment or is subse-quently changed from a two-seat to a four-seat endowment, it will probably result in changing your seat assignment in Kyle Field.

SCHOLARSHIPS FOR STUDENT ATHLETES AT TEXAS A&M UNIVERSITY


November 14, 1988 Page 2

It is unfortunate that it was necessary to take this action. However, we believe you can understand the position of The Aggie Club. Please feel free to contact me if you have any questions or desire further discussion.

Sincerely,

I l -.'.V'! ~ 1/Li-{ 'l~J ~arry J~ re n, Jr Executive Di ecto

HJG/tsh


Exhibit 3


September 24 , 1991

Ms. Ba.:!:bara A. Brunner 2907 Cedar Placid Circle Houston TX 77068-1421

Dear Ba...---bara:

121MAN F 0 U N D A- T 1-0 'N _

We are currently reviewing the 12th Man Fourrlation' s Pennanently Errlowed Scholarship program to ensure that our agreemant made in 1983 is in order.

our records indicate the benefits of your $15,000 (2-seat) errlowment will be honored during your lifetime as you were the donor of record when the errlowment was established.

Please indicate your agree:rrent by signing this letter on the lines below arrl return the original to the 12th Man Fourrlation. A copy is also enclosed for your files as well as a self-addressed envelope for your convenience in returning the signed copy.

Again, thank you for your generous support of the 12th Man Fourrlation.

Sincerely,

!!:::lfi~ Executive Director

Enclosures

Texas A&M University 12111 Man Foumfalion P.O. Drawer L-1 Collrgr Station. Texas 7784-1 Te/ejJhonc (409) 8-16-8892 Fctr (-109) B-16-2445

Exccutiuc Offices 011 joe Rou/1 Bouleuard a/ Clar/1 Street

I _I


DECLARATION OF IRVEN E. SKIP WAGNER1. My name is Skip Wagner. I am over the age of twenty-one (21) years and am competent to complete this declaration. The facts stated in this declaration are true and correct, and I have personal knowledge of these facts.2. I am a resident of College Station, Brazos County, Texas. I am currently the President of the Texas A&M University 12th Man Foundation. The Texas A&M University 12th Man Foundation (the Foundation) is a Texas nonprofit corporation with its prin...3. In preparing this declaration, I have referred to the business records of the Foundation, of which I am a custodian. I have personal knowledge about how the Foundations business records are collected and maintained. The records to which I have ref...4. The Foundation is a Texas nonprofit corporation established under the laws of the State of Texas. The Foundations principal place of business and only office is located in College Station, Texas, on the campus of Texas A&M University. All of the...5. Nearly all of the Foundations activities, including ticket sales, fundraising, advertising, and outreach occur in Texas. The Foundation does not operate, conduct, engage in, or carry on a business venture in Florida through Texas A&M Universitys ...6. The Foundation directs no activity towards the Florida market except to the limited extent it provides correspondence and tickets to the small number of donors that reside in Florida. Tickets to athletic events in Florida are provided to the Found...7. The Foundation does not sell or license the sale of merchandise or other services related to Texas A&M University athletic events in Florida. The Foundation does not exploit the Texas A&M University name, logo, or other intellectual property on sp...8. The Foundation has no interaction with potential athletic recruits. The Foundation is not involved with and does not assist in the preparation or management of recruiting trips in Florida. The Foundation generally provides funding to the Texas A&...9. The Foundation does not specifically maintain a program for soliciting donations from persons in Florida. The Foundation may contact a very small number of members that reside in Florida and correspond with these donors regarding donations at the...10. The Foundation, Kyle Field, and all of the parking and seating areas described in Plaintiffs Corrected Amended Complaint are located in College Station, Texas. Texas A&M University home football games are played at Kyle Field, and will be played...11. The pre-game buffet that occurs before home football games takes place in College Station, Texas. The Aggie Access Points System (also called the 12th Man Foundation Priority Points System) discussed in Plaintiffs Corrected Amended Complaint is a...12. Plaintiffs current addresses according to Foundation records are in Texas. Foundation records show that Plaintiff is associated with various Texas addresses. All correspondence that is mailed to Plaintiff is mailed to one of these Texas addresse...[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]Wagner Aff Final.pdfDECLARATION OF IRVEN E. SKIP WAGNER1. My name is Skip Wagner. I am over the age of twenty-one (21) years and am competent to complete this declaration. The facts stated in this declaration are true and correct, and I have personal knowledge of these facts.2. I am a resident of College Station, Brazos County, Texas. I am currently the President of the Texas A&M University 12th Man Foundation. The Texas A&M University 12th Man Foundation (the Foundation) is a Texas nonprofit corporation with its prin...3. In preparing this declaration, I have referred to the business records of the Foundation, of which I am a custodian. I have personal knowledge about how the Foundations business records are collected and maintained. The records to which I have ref...4. The Foundation is a Texas nonprofit corporation established under the laws of the State of Texas. The Foundations principal place of business and only office is located in College Station, Texas, on the campus of Texas A&M University. All of the...5. Nearly all of the Foundations activities, including ticket sales, fundraising, advertising, and outreach occur in Texas. The Foundation does not operate, conduct, engage in, or carry on a business venture in Florida through Texas A&M Universitys ...6. The Foundation directs no activity towards the Florida market except to the limited extent it provides correspondence and tickets to the very small number of non-endowed donors that reside in Florida. Tickets to athletic events in Florida are prov...7. The Foundation does not sell or license the sale of merchandise or other services related to Texas A&M University athletic events in Florida. The Foundation does not exploit the Texas A&M University name, logo, or other intellectual property on sp...8. The Foundation has no interaction with potential athletic recruits. The Foundation is not involved with and does not assist in the preparation or management of recruiting trips in Florida. The Foundation generally provides funding to the Texas A&...9. The Foundation does not specifically maintain a program for soliciting donations from persons in Florida. The Foundation may contact a very small number of non-endowed donors that reside in Florida and correspond with these donors regarding donat...10. The Foundation, Kyle Field, and all of the parking and seating areas described in Plaintiffs Corrected Amended Complaint are located in College Station, Texas. Texas A&M University home football games are played at Kyle Field, and will be played...11. The pre-game buffet that occurs before home football games takes place in College Station, Texas. The Aggie Access Points System (also called the 12th Man Foundation Priority Points System) discussed in Plaintiffs Corrected Amended Complaint is a...12. Plaintiffs current addresses according to Foundation records are in Texas. Foundation records show that Plaintiff is associated with various Texas addresses. All correspondence that is mailed to Plaintiff is mailed to one of these Texas addresse...[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]

Documents

D's Motion to Dismiss Skip's Affidavit