Sides argue Rodriguez countersuit

MORGANTOWN – Attorneys for West Virginia University today sought a partial dismissal of former football coach Rich Rodriguez's counter lawsuit.

Deposition dates were also set in the case against Rodriguez, from whom WVU is seeking $4 million. Rodriguez broke his contract with WVU when he took the head coaching job at the University of Michigan in December.

Attorneys Thomas Flaherty and Jeffrey Wakefield requested, on behalf of the West Virginia University Board of Governors, that Rodriguez's counterclaim of being fraudulently induced to sign the August amendment to his original contract be dismissed.

Flaherty accused Rodriguez's legal team of an untimely response to questions he submitted to it, stating that Sean McGinley and Marvin Robon did not answer his questions in the allotted 48 hours.

When Monongalia County Circuit Judge Robert Stone said that he thought it was only two days, Flaherty responded, "I've got a copy of the rules, your honor, if you'd like them."

Stone replied, "I'm not going to throw out the case because they were a few hours late."

Flaherty claimed that the affidavit of Mike Brown, Rodriguez's agent, was merely hearsay and should be thrown out per the parole evidence rule which states that a written contract can't be altered by evidence of oral agreements. The purported hearsay included in Brown's affidavit apparently included such evidence.

Flaherty cited two clauses that make Rodriguez's counterclaim "fail as a matter of law" -- the integration clause and the attorneys' clause.

The integration clause states that any changes to the contract must be made in writing and must be signed by all parties, and the attorneys' clause cited states that both parties' lawyers and tax advisors of their own choosing were present during the construction of and for the signing of the contract or amendments.

Initially, Robon stated that there was no integration clause in the contract, which Flaherty then proceeded to read aloud. Robon also claimed that Rodriguez did not have counsel when he signed the amendment.

However, Flaherty again retorted, saying that he was represented by counsel during the construction of the contract and the amendments to it.

Robon's third claim was that there was no mutuality in the contract because he believes WVU does not have the ability to fund $4 million if it breached the contract.

Flaherty stated that WVU did not terminate the contract, and Rodriguez did. He also noted that the no mutuality rule only applied to state boards and commissions and would never void the contract. However, even if this was the case, WVU is the alter-ego of the state and therefore, no mutuality did not apply to it.

Robon's fourth claim was that the attorney general must approve deals for purchasing by state agencies, but again, Flaherty stated that WVU was the alter-ego of the state, so again, it did not apply.

Robon claimed that the contract term sheet for the second amendment to the contract "sat around" without being signed for over eight months because Rodriguez did not want to sign a $4 million liquidated damages clause.

But, according to Robon, WVU President Mike Garrison -- in front of Rodriguez agent Mike Brown, WVU chief of staff Craig Walker and Rita Rodriguez -- told him he had to sign because football season was about to start and said, "We will work it out; we're not going to enforce it."

Robon said that Garrison told Rodriguez he "didn't believe in buyouts" and that Garrison knew Rodriguez was seeking "additional money for coaches."

Flaherty called the allegation "ludicrous… patently offensive and obviously plain wrong."