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

Exhibit A

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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
2

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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.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]

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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

Case 0:15-cv-60581-WPD Document 30-1 Entered on FLSD Docket 04/24/2015 Page 7 of 12

1!
September 14, 1983

Miss Barbara A. Brunner

1407 Hamlin Valley Drive
Houston, Te xas
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 se ei ng you on campus at that
time.

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

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HJG/jcp

AGGIELAND STATION, COLLEGE STATION, TEXAS 77844

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Exhibit 2

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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

November 14, 1988

Michael J. Brunner
2907 Cedar Placid Circle
Houston, TX
770681421
Dear Michael:
Our records indicate that we have received 5,500.00 toward the
30,000.00 commitment you made in 1985, leaving you with a remaining balance of 24,500.00. At the time of your commitment, the endowment 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 commitment.
If you cannot pay the entire $30,000 by that date but have already contributed $20,000 by December 31, you will receive the benefits 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 subsequently 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

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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,

l -.'.V'! ~ 1/Li-{ 'l~J

I
~arry
J~

re n, Jr
Executive Di ecto

HJG/tsh

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Exhibit 3

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121MAN
F 0

U N D A- T

1-0

'N _

September 24 , 1991

Ms. Ba.:!:bara A. Brunner

2907 Cedar Placid Circle

Houston TX 77068-1421
Dear Ba...---bara:

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

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