in Re Solid Software Solutions, Inc., D/B/A Edible Software ( 2015 )

NO. 01-15-00267-CV
FILED IN
1st COURT OF APPEALS
IN THE COURT OF APPEALS HOUSTON, TEXAS
FOR THE 1ST JUDICIAL DISTRICT OF TEXAS
3/25/2015 12:01:47 PM
AT HOUSTON CHRISTOPHER A. PRINE
Clerk
IN RE SOLID SOFTWARE SOLUTIONS, INC., d/b/a EDIBLE SOFTWARE
Original Proceeding from the 215th Judicial District
Of Harris County, Texas
Trial Court Cause No. 2013-74668
RELATOR SOLID SOFTWARE SOLUTIONS INC. d/b/a EDIBLE
SOFTWARE’ S APPENDIX D TO PETITION FOR WRIT OF MANDAMUS
Gregg M. Rosenberg
Texas State Bar No. 17268750
Tracey D. Lewis
Texas State Bar No. 24090230
ROSENBERG SPROVACH
3518 Travis, Suite 200
Houston, Texas 77002
Telephone (713) 960-8300
Facsimile (713) 621-6670
gregg@rosenberglaw.com
Attorneys for Relators
TABD
2/20/2015 4:02:54 PM
Chris Daniel -District Clerk Harris County
Envelope No. 4236215
By: JEANETTA SPENCER
Filed: 2/20/2015 4:02:54 PM
No.2013-74668
ANDREA FARMER § IN THE DISTRICT COURT OF
§
v. § HARRIS COUNTY, TEXAS
§
HENRI M0 RRIS and
SOLID SOFTWARE SOLUTIONS, INC.
§
§ ~
d/b/a EDIBLE SOFTWARE § 2151h JUDIC``ISTRICT
0~
PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTIO~ DISMISS OR,
ALTERNATNELY TRADITIONAL MOTION FOR MARY JUDGMENT
C),
TO THE HONORABLE JUDGE OF SAID COURT: (~
0~
COMES NOW Andrea Farmer, ("Ms. F~@'er"), and herewith respectfully
responds to the Motion to Dismiss or, alternati¥~,] Traditional Motion for Summary
O~J!
Judgment, ("M/MSJ"), heretofore filed h&by Defendants Henri Morris and Solid
Software Solutions, Inc. d/b/a Edib& Software, ("Morris", "Edible", collectively
"Defendants"); and, in support pede the following information, argument and
authority: 0~
,lQ~ I.
~SJ RESPONSE EXHIBITS
In order to pro~q support her Response to the instant M/MSJ with admissible
0``
evidence or o`` appropriate authority, Ms. Farmer respectfully marks for
identification~ attaches hereto the following Response Exhibits: 1
1) ~onse Ex. "A," file-marked copy of Plaintiffs Original Petition
herein, reflecting a file-date of December 13, 2013, attached for ease of
reference;
1
Each and all of such are incorporated herein and made a part hereof as if set out in full,
pursuant to Tex. R. Civ. P. 58. See also Malone v. Shoemaker, 597 S.W.2d 473, 476 (Tex. Civ.
App. 1980, no pet.); Jacox v. Cobb, 659 S.W.2d 743, 745 (Tex.App.- Tyler 1983, no pet.).
1
2) Response Ex. "B," file-marked copy of Defendant's (sic) Original
Answer herein, reflecting a file-date of December 18, 2013, attached for
ease of reference;
3) Response Ex. "C," file-marked copy of Defendants' Plea to the Court's
Jurisdiction, filed in Cause Nos. 2012-65503, 2012-65503-A and 2012-
65503-B, styled collectively Keri Hill, Michelle Barnett a11!if Stacy
Stewart v. Henri Morris and Solid Software Solutions, I~djbja
Edible Software, reflecting a file-date of February 21, 201('f®J
4) Response Ex. "D," file-marked copy of Plaintiffs' Re~p to said Plea,
in Cause No. 2012-65503, styled Keri Hill and lie Barnett v.
Henri Morris and Solid Software Solutions~, . djbja Edible
Software, reflecting a file-date of February 27, ~
5) Response Ex. "E," file-marked copy of thei!:®?Denying Defendants'
Plea to the Jurisdiction, of Hon. Jeff Shad · , dated March 3, 2014, in
Cause No. 2012-65503, Styled Keri HjJI)fA ichelle Barnett and Stacy
Stewart v. Henri Morris and Solid~lutions, Inc. djbja Edible
Software; ;r!!P
6) Response Ex. "F," file-marked~ of the Superseding Indictment
entered in Criminal Action ~:1i-12-255SS, pending in the United
States District Court for t~'Southern District of Texas, Houston
Division, styled United S,tfl!!s of America v. Henri De Sola Morris,
(Doc. 67), reflecting a f~'dl1lte of August 5, 2013;
7) Response Ex. "fiG" 1~arkedcopy of the Plea Agreement entered in
said federal cri~ l cause, (Doc. 129), reflecting a file-date of
December 3, 20
8) Response ~q,, copy of download of article posted online by the
Houston ,``ronicle, on its officially maintained website,
htt : .chron.com news houston-texas article, dated December
entitled "Software Exec Pleads Guilty to Drugging, Abusing
~Employees, quoting comments by Morris' counsel of record in
t e · deral criminal cause;
9) Response Ex. "I," relevant portions of the transcript of the deposition
of Ms. Farmer, taken on July 11, 2013 in regard to Cause No. 2012-
65503, styled Hill, et al v. Morris, et al, pertaining to the matters at
issue herein;
10) Response Ex. "J," relevant portions of the transcript of the deposition
of Beth Jackson, ("Jackson"), taken on July 24, 2013, in regard to
2
Cause No. 2012-65503, styled Hill, et al v. Morris, et al, pertaining to
the matters at issue herein.
II.
RELEVANT FACTS AND PROCEDURAL HISTORY
A. Introduction.
Defendants' M/MSJ asserts basically two defenses: (1) Civ. Pra~ Rem. Code
tort limitations; and, (2) the failure of Ms. Farmer to conform to the``s Commission
on Human Rights Act's ("TCHRA'') administrative requirement~ither defense has
any vitality whatsoever under controlling Texas law or
·~
un~"1ny reasonable notion
·{ffJ~
whatever of basic human decency, fairness or justice. l':'fVarmer has asserted viable
and timely claims and they should be allowed to re``nding in anticipation of a full
trial on their merits before a jury of the Parties' p``
The general facts of this case are sucply and relevantly summarized in the
~
federal criminal Superseding Indictmeending against Morris, (Response Ex. F).
During roughly the period of Feb``f;» 8, 2010, through about February 27, 2012,
Morris took various female e * e s with him on business-related trips to cities
outside Texas. On each trip, ~Qhis victims were thus isolated, far from home and all
the more vulnerable, Q~ date-rape drugged and, without their consent, sexually
abused, molested anlhtook nude photographs of his unconscious and completely
o~@>v
insensate and d~eless victims. Although each trip arose out of Morris' capacity as
President a~ of Edible and the supervisor of each of his victims, and the company
should be hcla liable for the intentionally tortious acts of its principal, Morris' predatory
acts had nothing whatever to do with his victims' work conditions. Among his victims
was Ms. Farmer and Defendants' instant effort to characterize her claims as workplace
complaints is franldy both cynical and delusional.
3
In confirmation of that, it's important for the Court to note that in their instant
M/MSJ, Defendants' entire Section II, "Statement ·of Facts," (M/MSJ, pgs. 2-8),
addresses the alleged nature and scope of Ms. Farmer's recollections of her violation by
Morris, with numerous citations to her Original Petition, (Response Ex. A), her.
statement to the FBI, (Motion Ex. D), and her deposition, (Motion Ex. ~espouse Ex.
£~@;
I), as though those documents constitute the exclusive factual univ~ upon which this
case and Ms. Farmer's claims are based. Moreover, such factu#entation adds much
that has no actual role in this case, namely Ms. FarmQ~iscussions of workplace
conditions. First, she discusses such only in response .fu. Defendants' counsel's direct
0~
questioning in her discovery deposition. Second, ~ facts might be very important
were Ms. Farmer asserting an employment sexu~arassment
``
or discrimination claim.
However, regarding her actual claims, all ~ facts are completely irrelevant.
Conversely, not a single word or re&nce is therein contained regarding the bigger
picture of this case, which is, again,~ically important to each of the bases Defendants
assert in support of their disne'fand/or summary judgment motion. Absent is any
reference to the Supersedi~dictment, (Response Ex. F), Morris' Plea Agreement,
IQJ~ .
(Response Ex. G), and ~rris' persistently cynical denial of any responsibility for his
·~
actions whatsoever~reflected in Response Ex. H. 2 Careful examination of the fuller
picture of wha#. Farmer had to say in her Original Petition, FBI statement and
deposition,$n considered in the context of the Superseding Indictment, Plea
2
See "Software Exec Pleads Guilty to Drugging, Abusing Female Employees," December 3, 2014,
http: l/www.chron.com/news/houston-texas/article, "Morris's attorney, Dan Cogdell, had said
that the women were consenting adults who willingly drank with Morris, and that Morris never
drugged anyone or intended to break any laws. He also said they [the women accusers, including
Ms. Farmer] were only making accusations against him to bolster civil suits pending in Harris
County." (Such article is admissible pursuant to Tex. R. Evid. 902(6)).
4
Agreement and media accounts of Morris' criminal lawyer's summary of Morris'
categorical denial of responsibility will demonstrate Morris to be a callous predator,
whose actions stunned Ms. Farmer and deeply affected her perceptions of what actually
happened to her. Defendants concentrate solely upon her representations in a vacuum
because by doing so they cleverly attempt to diminish the emotional a~j'lsychological
f2~rf!!
impacts of her victimization. When those serious consequences are ~unably and quite
~
properly factored in, Defendants' statute of limitations a``xas Commission on
Human Rights Act, ("TCHRA"), preemption argument~upport of dismissal or
. Q·
summary disposition are revealed to be utterly untenabl~herefore, Ms. Farmer will, as
0~
briefly as possible, present the fuller facts of this c~nd then apply to those facts the
controlling law. In doing so, she will demon``~to the Court's satisfaction that the
instant M/MSJ should be denied in each a~ry particular.
B. The complete facts. ~
In her deposition, (Respo``· I),a Ms. Farmer testified in relevant part that
she went with Morris to Phil~j)hia and Newark about two weeks after she started
working at Edible, (75:18- ~), [in May, 2011]. She flew by herself and met Morris at
the Philadelphia airpo~7:7-17). Morris had a rental car he used to pick her up,
~
(77:18-21). This w~ a Sunday evening, (77:25- 78:3); and, they drove to the hotel,
(78:2-4), (a Ma~, (79:23)). Morris wanted to meet in the concierge lounge, but it was
~ in the hotel bar, (79:2-8). They stayed there about an hour and a half,
closed so ~et
(79:18-19); then she went to sleep, (79:20-21). However, the next night, they went to the
Newark Marriott, (81:14-17); in order to see a New Jersey client the following day,
(81:23-24). Later, she could vaguely remember being at dinner and that a comedian was
3 Transcript citations are by page and line(s).
5
there whose picture Morris kept taking, (84:13-22). She has no idea where they were or
what she had for dinner, or any other details, (86: 9-13). She remembered going through
a tunnel on the way to dinner, but little else, (89:6-13). That evening, she and Morris
had met in the hotel concierge lounge and had drinks, (89:14-18). She drinks wine and
asked for a glass of it, but Morris insisted she have a mixed drink, ~:18-25). She
_e~(fjj
insisted on wine and he poured her a glass, but, then he told her th~1ould get another
drink to-go and go to dinner in Manhattan and he insisted sh`` a mixed drink, and
he fixed her a drink in a to-go cup, (90:17-25). Howeve~drink was so strong she
couldn't drink it, and she told him iliat. He then added ~·e soda to it and insisted iliat
o;JEF
she drink it, (91:1-22). Shortly, she began to feel v~dizzy, (92:1-10). In the elevator,
Morris began to massage her neck and back, wh~ she thought was weird, (93:4-16);
o~JI
she told him that was not necessary as~as making her uncomfortable, and he
stopped. But, later he put his hands o~r shoulders anyway, (93:16-25). By the time
iliey arrived in Manhattan, she wa``oriented, (92:11-13); and, Morris began holding
her hand which made her feel ``comfortable, (93:1-3).
Ms. Farmer has absoh~y no memory of anything about ilie dinner or going to it
~g~"
or getting home, (95:2{il6:15). At some point that night, she awoke in her hotel bed
with a pillow and
.JJ!covers over her head and her blanket
s``~
. down around her anldes.
Then, she hear# click of a phone camera and she looked and realized she was naked
and MorriSs standing over her, (81:23- 82:4). She was so tired she had trouble
adjusting to what was going on and she muttered, "Wait, I'm not ... like what is going
on?" Then, she sat up and asked Morris if he had just taken a nude picture of her, (82:5-
11); which he hastily denied, (82:12). She became upset and asked him what he was
doing there, and she told him to leave and to give her the picture she knew he had taken,
6
(82:12-15). She was disoriented and confused, but she told him he could not have the
picture, but he just said "it was fine," (82:19-23). Then, Morris left the room and came
right back in to show her his Blackberry, with no picture in it. She tried to index it, but
couldn't, (83:8-17). Then, he left again and she went back to sleep for four hours, (84:6-
9).
She very vaguely recalls that when she awoke in her hotel
~
*
~ bed nude, with
Morris standing over her, it was about 4:00am, (99:4-8). She# a d an apprehension
that he was taking nude pictures of her because she heaQ~ click of the Blackberry,
(97:15-20). That he actually did so was not confirmed n~J much later after Morris was
0~-
arrested and they found several nude photos of her~ locked flash drive in his office,
(101:1-13). She clearly remembers him in her rlil;;J and herself naked in bed, (98:1-5).
``
He left her room about 4:00 am and she t r e p t until about 8:oo am, (99:4-11). She
emphatically denied giving Morris co~t to take nude pictures of her, (104:4-24).
More importantly, in addition to b~i?'Zil~ng she had been photographed nude, she also
``r'
feels certain that she was physi~'§ violated because she had redness in her vaginal area
and bruises on her arm anch"\ip area". (99:12-22). Although she did not feel she had
©~
been raped, she felt li~she had "been touched" and she was sore in her "female
``
regions", especially(J),_,-...e outside, (100:1-10).
The nex#ning, incredibly, Morris was at the door of her hotel room asking
why she w``ready to see the client! (102:7- 103:8). She met him downstairs and it
was she who was apologizing for being unprofessional, (103:11-15); she blamed herself
for losing control, (103:22- 104:3). In response, Morris dismissed her concern by saying
it "was no big deal", (106:11-15). She felt terrible that day and continued to feel
disoriented, (107:1-7). Later, he told her he had "never done anything like this before
7
and he really liked her." (113:4-7). Then, he claimed he had a bad marriage, (113:10-12).
She told him their relationship had to be professional; but, he told her he would hug her
whenever he felt like it, (113:13- 114:1). She started looking for another job immediately,
(114:18-20) .. Ms. Farmer took one more business trip with Morris. On that trip, once
again, Morris had her meet him in the concierge lounge of their hote~6:9~10). He
~®i
asked her if she wanted a drink and she asked for a chardonnay. B1~tter he brought it
to her, it tasted disgusting, like strong medicine, with a #itter alkaline taste,
(116:18-25). She said the taste was definitely not a norm~, (118:3-25). She tried a
few sips and then said she couldn't drink it, (119:16-iRl. They went to dinner; and,
afterwards, Morris pressured her to have anothe~nk,
·~' but this time she refused,
(121:1-6). After they returned to Houston, she ``~y learned that Morris refused to talk
~
to her anymore, for a pretextual reason~:14-25). And, he remained distant and
standoffish to her, (125:6-10). ~
Contrary to Morris' deceitf~lil>resentation to Ms. Farmer that "he had never
done anything list this before, ~is criminal lawyer's comment that Ms. Farmer and
the other victims were mo.v~
~JU
making allegations up to aggrandize their civil suits,
(obviously including tl~one), ((Response Ex. H), it should be noted that in the
~
Superseding Indict~, he was criminally charged with very similarly violating four (4)
other female e&~yee victims, (Response Ex. F). And, while charge does not equal
conviction,~gard to Ms. Farmer, in the Plea Agreement, (Response Ex. G), Morris
explicitly agreed to the truth and validity of the facts alleged in Count Five thereof, that:
"On or about May 8, 2011, Morris traveled in interstate commerce and committed, and
attempted to commit, the drug-facilitated sexual assault of [Ms. Farmer]." (Id., pg. 6-7).
And, Morris further plead guilty to the offenses of "violating 18 U.S.C. § 2421, as well as
8
New Jersey Statutes Annotated 2C:14-9(b), Invasion of Privacy." (Id.). Morris further
agreed that he was arrested by the FBI on February 27, 2012, at IAH, when he was
attempting to leave on another business trip. He had with him three bottles of the
"unknown liquid" he used to dilute the drugs he administered to Ms. Farmer by means
of alcoholic beverages he supplied to her. He also had four Viagra table~d four Cialis
tablets for himself and five pills of the type he administered
_c;'il.~!f!j; Farmer, which
t~.
included sleeping pills and sedatives, which according t`` analysis and a
~
supervisory FBI Forensic Chemist and Toxicologist were ~tent with the symptoms
she described when she was attacked by Morris, which~luded drowsiness, dizziness,
0``
loss of muscle control, slurred speech, deere~ inhibitions, memory loss or
``orris agreed that he drugged Ms.
impairment, loss of consciousness. (Id., pg. O'V
. ~
Farmer's drink at the New Jersey hotel, j``he testified, and that she suffered all the
disorientation and intoxication at din~he testified to. He also agreed that he took
nude, unconsented photographs of~ Farmer with his cell phone, and that copies of
those pictures were preserve`` thumb drive in his possession at the time of his
arrest. Time/date stamps q~ch confirmed they were taken between 2:00 and 4:00
©>~
am. He also confirme~ lies he told her the next morning. She also had physical
~
markings confirmi~r violation and the photographs were nude and explicit. So, it's
imperative for ~ourt to observe that while she was very confused that night and
afterwards,~ore story has been confirmed by forensic evidence and the confession of
Morris!
In Ms. Farmer's statement to the FBI, dated February 22, 2013, (Motion Ex. D),
her explanation of the fuzziness and limits of her recollections on the night she was
9
assaulted, (Id., pgs. 29-42; 45-46), are virtually identical to her deposition testimony, in
every particular.
During the entirety of discovery in this case and the Hill companion case, the
total of depositions taken of witnesses in support of Morris has been one, that of Beth
Jackson, (Response Ex. J). Jackson testified in her deposition,4 in re~t part, that
. /?._'@
She drinks 2-3 mixed drinks daily, (28:3-9); and, she has often be~put drinking with
Defendant Morris, (22:1-5; 27:19-21; 30:3-8; 33:25- 34:3). Sh)l~ed that initially, she
. ~
had a business relationship with Morris, (32:10-12); but~ater conceded that even
though she knows he is married to Ruth, whom she has .ifu.t, (35:3-10), she has travelled
o``r
with him at least once a month since 2009, (37:~, and she had a long-running
"personaI reIatwns
. h'1p" Wit
. h h'1m smce
. Q(49:4-22), Iastmg
ab out 2GQS'; . mto
. 2011, (51:21-
o~
52:4); which specifically included a sexua~onship with him, (49:20- 50:4). During
this time, both of them were marrie~ other people, even though their respective
spouses did not !mow oftheir ill``ationship, Cso:s-20). This relationship included
sexual intercourse, (50:1-4), ~tal penetration, (53:6-8), and allowing him to
photograph her nude, (53:``), on numerous occasions and in numerous locations,
0~
(53:24- 54:5). He took ~e nude photos with his cell phone, which he would then save
~
by downloading t~i?onto hard drives or flash drives, (55:3-8); her only restriction
bein)l; that in t~ly nude photos, her face not be shown, (54:16- 55:2). She said she
intended M@-~ to use the photos to arouse himself with his wife because while she
easily aroused him, his wife did not, (54:9- 56:2; 57:8- s8:s; 58:25- 59:19; 60:5-19). The
FBI now has the photos, (61:1-7). She also conceded that Morris confided to her
that he also took nude photos ofAndrea Farmer, (61:8-19).
4 Citations to the transcript thereof are by page and line(s).
10
Jackson said Morris often travels with small "airplane" bottles, (63:8-10); which
she assumed he used to "re-cycle" liquor, (63:24- 64:4); and, she has seen Morris often
make drinks for others, (68:12-14), including the use of "to-go" cups, (69:1-3).
Nevertheless, she obdurately disagrees with Andrea Farmer's testimony "too%", (67:14-
16). The Court can evaluate the credibility of such testimony. '*
!f!1
Finally, in her Original Petition on file herein, (Response rfi1' A), Ms. Farmer
made very clear that the factual basis of her claims was that: "~ant Morris drugged
Farmer by putting an unknown substance into a drink, u``ownst to Farmer. During
this time, Morris attempted to sexually assault Farmer``
o;!f[F took pictures of her while
she was unconscious." (Id., pg. 2). Thus, while t~aims asserted are assault and
invasion of privacy, the gravamen thereof are dm2nduced unconsciousness and sexual
O~J
assault, the very crimes Morris has pled g~ in federal court.
Therefore, on the basis of this ~ of supporting evidence and information, it
seems remarkably disingenuous tl),vfendants, in their instant M/MSJ, (filed January
16, 2015, over five (5) weeks ae~orris' entry of his sworn guilty plea), are even now
contending: (1) "plaintiff WJili~Ware of the alleged assault and impermissible pictures
g~
taken of her at the time~ events occurred," (M/MSJ, Pg. 3); (2) "she could remember
~
... Morris allegedly~aging in sexually inappropriate and/or offensive behavior with
her," (Id.); (3) "~ad reason to believe that she had been physically violated," (Id., pg.
4); and, (4~'Ye allegedly saw, was aware of and observed these things at that time."
(Id.). First, there is nothing whatever "alleged" about what Morris did to Ms. Farmer. He
has pled guilty to every lurid detail of it under oath! Second, Defendants want to lock
Ms. Farmer into specific recollections, when the thrust of her entire testimony was that
she was drugged and completely out of it during her violation and has only the vaguest
11
recollections of it. Such a distortion is especially reprehensible where Morris admitted
the sophisticated nature of his carefully plotted and executed drugging of Ms. Framer to
achieve exactly the intoxication and disorientation Defendants now contend she doesn't
have! Third, not only does her testimony support her claims, even Defendants admit
that when she was questioned by the FBI, she expressly denied memo~ recollection
of the pictures taken or what they depicted until the FBI showed
~e~!@
~n to her, (Id., pg.
~
s). ~
II. ·~
ARGUMENTANDAUTHO~
Given the truly egregious nature of this case:~ Farmer and her undersigned
counsel believe it's both necessary and approp~«fc, bluntly respond to the defenses
asserted in Defendants' instant M/MSJ, base~on five (5) critically important issues.
~
First, in Defendants' Motion to Dismi~(ttey only infer a two (2) year limitations
defense, per Civ. Prac. & Rem. Code ``003(a), yet the Court should note how strange
it is that Defendants never once ~at statute, merely discussing case law applying it.
If they are so confident of its ~9-cation, why would they be so coy? Obviously, because
in both law and equity, ``3(a) does not apply. Instead, this case is clearly governed
by the provisions of~v. Prac. & Rem. Code § 16.0045(a), which provides for an
·~©r
applicable five ``ar limitations period, pursuant to which Ms. Farmer's claims are
manifestly`` asserted. Second, even if § 16.003(a) did control, which is not the
case, .that statute's two (2) year limitation period has been tolled under the doctrine of
fraudulent-concealment. Third, even if§ 16.003(a) applied and had been timely asserted
as a basis for dismissal, neither of which is the case, Defendants' Motion to Dismiss
is not timely, pursuant to Tex. R. Civ. P. 91.a3(a). Fourth, in Defendants' Traditional
12
Motion for Summary Judgment, virtually all of the factual assertions are at stark
variance with the appalling "Factual Basis for Guilty Plea," as contained in the Plea
Agreement Morris has now entered into in his federal criminal prosecution, (Response
Ex. G). The total facts of this case literally cry out for a jury trial of Ms. Farmer's claims.
Fifth, Defendants' attempt to fit this case within the parameters of ~CHRA is a
~@)
complete distortion of that law. Ms. Farmer is not making an(Jl'ort of workplace
complaint; she was sexually abused, molested and photograp#ude by Morris, after
her drugged her unconscious in a hotel room in New J ersel!_f
The fact that the instant M/MSJ has been very r~ssionally prepared is a fitting
~
tribute to opposing counsel's fine professional rep~on. But, its glossy polish should
not in any way distract the Court from the harib~th
``
that Morris is a convicted sexual
predator who, on the one hand, will no do~ll the federal court how contrite he is at
his pending February 27, 2015 sentenc~for crimes against Ms. Farmer specifically,
while here, he is the same smug, a~ant bully who drugged and abused Ms. Farmer
and numerous other victims 1~ and denying as strongly as ever. How utterly
contradictory that he will b``doubtedly remorseful to Ms. Farmer in the court where
rg~"'
he faces federal prison ~ yet, here, he is still denying everything and trivializing Ms.
~
Farmer's humiliati~ his cruel hands. Therefore, Ms. Farmer now addresses each of
the forgoing fi~) issues seriatim, in the fervent hope that this Court will hold
Defendant``e same accountability here as Morris has been compelled, by the awful
facts he authored, to submit to in the federal court.
A. Ms. Farmer's Claims Are Governed by Civ. Prac. & Rem. Code §
16.0045(a)'s Five (5) Year Limitation Period.
13
Ms. Farmer agrees that in her Original Petition on file herein, (Response Ex. A),
she has asserted causes of action against Morris based upon the torts of "intentional
physical contact... directly and through the instrumentality of drugs," (Id., '1! 10), and
"intruding on... seclusion when tak[ing] photographs of [Ms. Farmer] when she was
unconscious." (Id., '1l 12). These were further characterized as claims f~sault, (Id., '1f
__ e_,rt@
n), and invasion of privacy, (Id., '1!13), as regards Edible. Defendar~ant to take these
terms at face value, in a factual vacuum, to lock them into t`` (2) year limitation
period provided by Civ. Prac. & Rem. Code § 16.003(a). ~ver, these claims do not
arise from a punch in the nose, a car wreck or a routin~lip-and-fall. They arise from
o~F
truly insidious sexual abuse facts which shock th~nscious. Therefore, Ms. Farmer
vigorously asserts that her claims fall more re~ably
``
Within the parameters of Civ.
Prac. & Rem. Code § 16.0045(a), which p~s for a five (5) year limitation period in
cases involving sexual abuse; and, it is t~longer period which should control here.
Defendants cite a number of R@lles regarding the application of§ 16.003(a)'s two
~'f:J"
(2) year limitation period to ~ion of privacy claims, but a close reading thereof
reveals them to be disting"'~ble
~·&<
from Ms. Farmer's instant claims. The invasion of
privacy cause of action~ first recognized by the Texas Supreme Court in Billings v.
Atkinson, 489 Jz~
S.W.Q~58, 86o (Tex. 1973). However, it was there defied as "A judicially
approved defin, of the right of privacy is that it is the right to be free from the
unwarrant~):propriation or exploitation of one's personality, the publicizing of one's
private affairs with which the public has no legitimate concern, or the wrongful
intrusion into one's private activities in such manner as to outrage or cause mental
suffering, shame or humiliation to a person of ordinary sensibilities." I d., at 859. What
happened to Ms. Farmer is far more egregwus that any of that. In Matlock v.
14
McCormick, 948 S.W.2d 308, 311 (Tex.App.- San Antonio 1997, no pet.), § 16.003(a)'s
two (2) year limitation was held applicable to an employee's claim arising out of other
employees being told she was under investigation for selling drugs at work. In
Stevenson v. Koutzarov, 795 S.W.2d 313, 318 (Tex.App.- Houston [1st Dist.] 1990, writ
denied), it was applied to a third-party claim in a nasty divorce case. t-il;=rovington v.
ri'``
Houston Post, 743 S.W.2d 345, 347-48 (Tex.App.-Houston [14th~.] 1987, no writ),
it was held that the two (2) year limitation statute was applic~ a claim based upon
a newspaper's article placing a person in a false light. QJff;
And, it's particularly interesting to note thq~efendants cite Ramirez v.
·~
Mansour, No. 04-06-00536-CV, 2007 WL 21871~t *6, (not reported in S.W.3d)
(Tex.App.- San Antonio Aug. 1, 2007, no pet,-}~r the proposition that assault and
·~
battery actions are limited by a two-years~ oflimitations, (M/MSJ, pg. 9, n. 39). In
that case, the San Antonio CCA made v~clear that while: "Assault and battery actions
are limited by a two-year statute ~itations. Tex. Civ. Prac. & Rem. Code Ann. §
16.003 (Vernon 2006) ... sexu~ault actions are limited to five years. Tex.
Civ. Prac. & Rem. Code ~. § 16.0045 (Vernon 2006). (Emphasis added)." Id.,
rg~:~
at *6. And, Bros. v. Gilttg;j}, 950 S.W.2d 213, 215 (Tex.App.- Eastland 1997, pet. den' d),
~
dealt with a simpl~1sault and sexual harassment claim arising out of a workplace
unconsented t~ng. Nothing about that case begins to rise to the level of Ms.
Farmer's ~ assault claims while she was drugged unconscious. Similarly,
Marburger v. Jackson, 513 S.W.2d 652, 654 (Tex. Civ. App. 1974, writ refused n.r.e.),
involved a simple physical altercation. When the much more appalling facts of Ms.
15
Farmer's instant claims are considered in the context of the entire facts, it becomes
readily apparent that far more is involved in tbe proper limitations analysis here.s
§ 16.0045(a)(1) allows a victim to bring a claim witbin five (5) years if tbe injury
arises as a result of conduct tbat violates "Section 22.011, Penal Code." Id. §
22.011(a)(1)(A) makes it an offense to penetrate the sexual organ of an``>var
``·v
person by
any means, without that Person's consent. Id. Lack of consent Qesent where the
victim has not consented to such penetration and the.perpe~knows the victim is
unconscious or physically unable to resist. Id. Ms. Farm~'We very clear in both her
v~nal region was red and sore,
FBI statement and her deposition testimony that heroiffJJ~
$
5 Defendants are being disingenuous when they charaQize Ms. Farmer's claims as based upon
simple assault and invasion of privacy, wholly sep~d from the entire facts of her humiliating
sexual abuse. If Ms. Farmer did not plead her!!! ltrt's~with sufficiently horrifying detail to make
the totality of them understandable to ovew e Defendants' feigned myopia has no legal
significance. She pled them sufficiently to~ · e Texas pleading standard. See Tex. R. Civ. P.
45(petition shall "consist of a statement i ain and concise language" to give "notice to the
opponent" of the "allegations as a whole~Ji le 45(a)("An original petition... shall contain (a) a
short statement of the cause of action ~cient to give fair notice of the claim involved ... "); see
also Texas Dep't of Parks & W1mldl' ~Miranda, 133 S.W.3d 217, 230 (Tex. 2004)("Rule 45
does not require that the plainti ut in his pleadings the evidence upon which he relies to
establish his asserted cause of a ti n. Mullr, 749 S.W.2d at 494-95."); Sw. Bell Tel. Co. v.
Garza, 164 S.W.3d 607, 617, n.A(Tex. 2004)("See HorizonjCMS Healthcare Corp. v. Auld, 34
S.W.3d 887, 896-897 (Tex.2`` ('Texas follows a "fair notice" standard for pleading, which
looks to whether the oppasi>&?-1>arty can ascertain from the pleading the nature and basic issues
of the controversy a~d ·li'hll.festimony will be relevant .... "A petition is sufficient if it gives fair
and adequate notice of~0
facts upon which the pleader bases his claim. The purpose of this rule
is to give the opposi rty information sufficient to enable him to prepare a defense." Roark v.
Allen, 633 S.W~2 , 810 (Tex.1982).')."); HorizonjCMS Healthcare Corp. v. Auld, 34 S.W.3d
887, 897 (Tex. 2 ("Horizon's intent to invoke the punitive-damages cap found in the Texas
Civil Practice emedies Code, even though the pleading referred to an incorrect version of
the statute. oS~ e.g., CKB & Assocs., Inc. v. Moore McCormack Petroleum, Inc., 809 S.W.2d
577, 586 (Te'ieipp.- Dallas 1991, writ denied)('A pleading that gives adequate notice will not fail
merely because the draftsman named it improperly.')."). And, in stark confirmation of
Defendants' obdurate refusal to acknowledge Ms. Farmer's entire claims, one of the Movants
here, Morris, has pled guilty to the entire gruesome scope of what Ms. Farmer claims!
16
indicating to her at least some degree of penetration, although she did not believe she
had been raped, (see Response Ex. I, 99:20-100:7, [she believed she had been sexually
violated and was sore in her "female regions"]). And, the circumstances surrounding her
violation and Morris' subsequent arrest absolutely confirm his successful intention to
render her unconscious and unable to resist him. Again, in his Ple~reement, he
explicitly confessed to such! u"i"'-@)
Thus, while he has not been formally charged unde``s criminal law, his
federal criminal conviction is the functional equivalent ``f. And, justice requires
that victims such as Ms. Farmer should be accn~d a reasonably expansive
Q~
interpretation of the applicable limitations pe11~ instead of applying a rigid
interpretation, like an Old English form of oo~, which distinctly favors a craven
Q~
predator like Morris or his enabling em~, Edible. And, her invasion of privacy
claim is actually a part and parcel of & sexual violation. Morris took his salacious
liberties with Ms. Farmer while ~ was in a helpless condition and then took
photographs of her nude bodyG~ding close-ups of her vaginal area, as proof of his
sadistic conquest, which he~· bragged about to his mistress Jackson. He was such a
g~"''
coward that he took pai~o cover Ms. Farmer's face with a pillow while photographing
~
his "trophy ldll" ``n repeatedly lied to Ms. Farmer about taldng the photos. Thus,
he is the last pe~1 on earth the limitations period should be strictly applied in favor of.
In s$rt of such interpretation, in Stephanie M. v. Coptic Orthodox
Patriarchate Diocese of S. U.S., 362 S.W.3d 656, 659 (Tex.App.- Houston [14'h Dist.]
2011, rev. den' d), the CCA specifically held, in reversing and remanding the granting of
summary judgment to defendants, that:
17
"Focusing on the second portion of subsection (a), the Diocese and Church
defendants/appellees argue that the extension of the statute of limitations
applies only to suits against the person or persons whose conduct violates
the Penal Code. But section 16.0045(a) applies to a 'suit for personal
injury,' which includes claims for negligence. There is no language
restricting this particular limitations statute to certain types
ofpersonal-injury claims; hence, there is nothing in the statute
to indicate that the legislature intended to limit this~r vision
to causes of action against only the perpetrators o xual
assault. Part (c) of section 16.0045 permits a plaintiff G signate
unknown persons as defendants in a civil suit based on ch(Id. § 16.0045(c). Subsection (a) amends;N;1fe default
limitations provision provided in section 16.0~ extend the
limitations period from two to five years.~mpare id. §
16.0045(a) (expanding limitations periodSfive years for
victims of various types of sexual assaul{j,JVith id. § 16.003
("Except as provided by Sections 16.o~o 6 ·ury
0031, and 16.0045,
a person must bring suitfor trespassfo to the estate or
to the property of another, conversi of personal property,
taking or detaining the personal pr~ ty of another, personal
injury, forcible entry and detain~
Stephanie M., at 659. See also~ Catholic Soc. of Religious & Literary Educ., No.
CIV. A. H-09-1059, 2010 0
W~3ZJ:5926, at *16, (not reported'm F.Supp.2d), (S.D. Tex.
Jan. 22, 2010)("The stQt®~f limitations for a personal injury suit based on sexual
assault is five years. 'i'rot. Civ. Prac. & Rem. Code § 16.0045. This five-year limitations
";£©Y
period clearly a~ to the vicarious liability claims. The five-year limitations period
may apply``er claims as well, particularly the direct liability. claims that the
defendants' negligence allowed the alleged abuse to occur. In interpreting section
16.0045, this court has previously concluded that 'the Texas Supreme Court would join
the majority of state courts considering similar statutes and hold that the limitations
period of Section 16.0045 applies to claims against nonperpetrators of sexual abuse as
18
well as to claims against alleged perpetrators.' Doe I v. Roman Catholic Diocese of
Galveston-Houston, No. 05-1047, slip op. at 21 (S.D. Tex. Mar. 27, 2006)."); Doe v.
Catholic Diocese of El Paso, 362 S.W.3d 707, 717 (Tex.App.- El Paso 2011, reh'g
overruled, rule 53.7(f) motion granted)(" Ordinarily the two-year personal injury statute
of limitations applies to negligence... See Tex. Civ. Prac. & Rem~de Ann. §§
-12~1@ plaintiff brings
16.003(a) ... However, a five-year statute oflimitations applies whe~1e
suit for personal injury caused by sexual assault or aggravat``al assault. See Tex.
Prac. & Rem. Code Ann. § 16.0045(a)."); Mayzone v. ~onary Oblates of Mary
Immaculate of Texas, No. 04-13-00275-CV, 2014 WL "~7249, at *3, (not reported in
oilffF
S.W.3d), (Tex.App.- San Antonio July 30, 2014-JY[~lor rev. filed)("When a plaintiff
brings suit for personal injury caused by sexualJlll``t or aggravated sexual assault, the
0~
five-year statute of limitations applies. (!'~ex. Civ. Prac. & Rem. Code Ann. §
16.0045(a) (West Supp.2014); Catholic&cese of El Paso, 362 S .W.3d at 717 (applying
five-year statute of limitations to ~gence, breach of fiduciary duty, and intentional
infliction of emotional distr``aims arising from allegations of sexual abuse);
Stephanie M. v. Coptic Or"~ox Patriarchate Diocese of the So. United States, 362
g~"
S.W.3d 656, 659-60 (~App.-Houston [14th Dist.] 2011, pet. denied) (applying five-
~
year statute of li ions to negligence claim arising from allegations of sexual
abuse).").
~·
©
Ob``' if the § 16.0045 limitations period is applied to the instant claims,
which occurred in May, 2011, Defendants' limitations argument evaporates. And, justice
demands no less.
B. Limitation Has Been Tolled In the Instant Facts.
19
Even were this Court inclined, arguendo, to determine that the two (2) year
limitation period set out in § 16.003(a) applied to the invasion of privacy claim, (which
should not be the case where, as here, the taking of such photos was a part and parcel of
Ms. Farmer's sexual assault), then the limitations period applicable thereto should
commence to run as of February 27, 2012, the date Morris was arrest~nd the nude
£,1/@J
photos of Ms. Farmer were found by FBI agents on the flash drive~1is possession, or
even thereafter, in May, 2012, when the FBI showed them t``see Response Ex. I,
101:1-18, [she was shown the photos by the FBI, and incluQ~ctures of her nude taken
in both her first assault and later during a New Orleans t& with Morris]). As mentioned
·~
supra, on February 22, 2013, Ms. Farmer met ~rthe FBI to give her statement,
(M/MSJ Ex. D), and she confirmed to the FB-q t while she thought Morris took a
·~a
picture of her nude, "he won't give me his ~' and then all of a sudden I can't find his
phone or what he did with it," (33:13-1~"he was like, I swear, I swear, I swear I didn't
take a picture of you. I swear I didn'~'e a picture of you," (33:20-23), "so he leaves the
~
room and I'm just totally disor~d ... he leaves and shuts the door and then he knocks
like five seconds later and T``n the door and he is like, look, look, I don't - he shows
``
me his phone and he ``' I don't have any pictures. So I take his phone ... if I was with
it and not like so gf:F, I might have been able to find the picture ... and I just couldn't
even figure out ~to, you know, work my way around that phone," (35:3-15). Virtually
identically,Ser deposition, (Response Ex. I), Ms. Farmer confirmed, "And, so I was
like, popped up, and I was like, 'What are you doing? Are you - did you just take a
picture of me?' And, he was like, 'What? No, no,'" (82:9-12), "And I was so disoriented
and so confused... He was like, 'No, no, no. It's fine. It's fine. I didn't take a picture. I
6 As with depositions, citations are by page and line(s).
20
didn't take a picture,' " (82:16-23), "And so then he, he walks out of the room ... And then
he knocks, and he's like, 'See, look, I don't have any pictures of you,'" (83:8-11), "I can't
like even really figure out how to work the phone. Like I think I was trying to look
through the pictures, but I like couldn't think to figure out how to get to where I wanted
to go,'' (83:13-17). Indeed, Morris steadfastly denied he had in any '~abused Ms.
. ri!J'~
Farmer or any other of his four victims, until the entry of his Plea A~ent.
Defendants proffer no facts which contradict either ``~mer's abject mental
confusion on the night of her molestation or her lack of ~l knowledge of what the
pictures of her actually depicted until well after her viol``n. Defendants contend "[Ms.
o;J!Ir
Farmer] confirmed with the FBI that the pictures fq~ in or around May 2012 were in
fact her, but she had knowledge that the pictm;,e~ere
``
taken at the time of the alleged
incidents when they occurred in 2011," ~ her deposition, at pgs. 176 and 201.
(M/MSJ, pg. s-6). Respectfully, tha&flatly untrue. As noted, Ms. Framer was
completely disoriented at the tim~44ier violation. And, in her deposition, at pg. 176,
she made clear that it was not ``May, 2012, after the pictures had been found, that "I
confirmed the pictures wer``," (176:21). And, Defendants' proffered quote from her
co~·"'"
deposition, at pg. 2o~Cij\at Ms. Farmer had knowledge of the photos is a blatant
misstatement of w~<¥he said. She confirmed she had merely a belief that Morris had
taken photos, #uer he repeatedly, vehemently denied. Indeed, Ms. Farmer made
clear that s~t saw the photos only after the FBNI seized them, (101:1-9).
InS. V. v. R. V., 933 S.W.2d 1, 6 (Tex. 1996), the Texas Supreme Court made clear
that: "Accrual of a cause of action is deferred in two types of cases. In one type, those
involving allegations of fraud or fraudulent concealment, accrual is
deferred because a person cannot be permitted to avoid liability for his
21
actions by deceitfully concealing wrongdoing until limitations has run ...
Restated, the general principle is this: accrual of a cause of action is
deferred in cases... in which the wrongdoing is fraudulently
concealed... (Emphasis added)." Id., at 6. And, very recently, the Court reiterated that:
"We have long held that "fraud prevents the running of the statute of li~tions until it
is discovered, or by the exercise of reasonable diligence might
.e.~r@
ha~)Jeen discovered."
Ruebeclc v. Hunt, 142 Tex. 167,176 S.W.2d 738, 739 (1943). a:#Y··· 'a person cannot
be permitted to avoid liability for his actions by deceitfull~ealing wrongdoing until
limitations has run,' S.V. v. R.V., 933 S.W.2d 1, 6 (Te~996). Because 'fraud vitiates
0~
whatever it touches,' Borderlon v. Peck, 661 S.W.~o7, 909 (Tex.1983), limitations
does not start to run until the fraud is discoveredSf the exercise of reasonable diligence
0~
would discover it, Marshall, 342 S.W.3~9. The same rule applies to claims of
fraudulent inducement..." Hooks v. Sa~n Lone Star, Ltd. P'ship, No. 12-0920, 2015
WL 393380, at *3, _ S.W.3d _, (~Jan. 30, 2015).
And, in Bertrand v. B~d, 449 S.W.3d 856 (Tex.App.- Dallas 2014, reh'g
overruled Jan. 22, 2015), ``alias CCA observed that: " 'Fraudulent concealment is
based upon the doctrin~quitable estoppel ... [and] estops a defendant from relying
~
on the statute o``ions as an affirmative defense to plaintiff's claim.' Borderlon v.
Peele, 661 S.W.~'>l)07, 908 (Tex.1983). A party asserting fraudulent concealment or
equitable e~el as an affirmative defense to the statute of limitations has the burden
to raise it in a response to the summary judgment motion and to come forward with
summary judgment evidence raising a fact issue on each of the elements of these
defenses. KPMG Peat Marwick v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746,
749 (Tex.1999).' " Id., at 856. See also Ward v. Stanford, 443 S.W.3d 334, 351
22
(Tex.App.- Dallas 2014, reh'g overruled Oct. 3, 2014)("Fraudulent concealment is an
affirmative defense to the statute of limitations. See KPMG Peat Marwick, g88 S.W.2d
at 749. As a party asserting fraudulent concealment, appellant has the burden to raise it
in response to the summary judgment motion and to come forward with summary
judgment evidence raising a fact issue on each element of that defens~e id. A party
_[!'}~_!@
asserting fraudulent concealment must establish an underlying ~g, and that 'the
defendant actually knew the plaintiff was in fact wronged, ~&ncealed that fact to
deceive the plaintiff.' BP Am. Prod. Co. v. Marshall, 3``.3d 59, 67 (Tex. 2011)
(quoting Earle v. Ratliff, 998 S.W.2d 882, 888 (Tex.,'i'>ng)). Fraudulent concealment.
oiJ?
only tolls the running of limitations until the fra~ discovered or could have been
discovered with reasonable diligence. Id."). As&~foregoing
0~
factual recitations clearly
confirm, Ms. Farmer has herein asserted~helmingly sufficient facts to justify the
application of the fraudulent concealme&octrine to the instant limitations analysis.
C. The Instant Motio~Dismiss Is Untimely.
As this Court is well-aw``e Texas Rules of Civil Procedure have not had, until
relatively recently, a proco~l equivalent of the Fed. R. Civ. P. 12(b)(6) dismissal
~:r
motion. Tex. R. Civ. P. ~' "Dismissal of Baseless Causes of Action," became effective
~
on March 1, 2013, ~over nine (g) months prior to the filing of this suit.7 Therefore,
the reported c # w applying such is only now beginning to emerge. See Wooley v.
``
7 See GoDaddy.com, LLCv. Toups, 429 S.W.3d 752,754 (Tex.App.- Beaumont 2014, rev. den'd
Nov. 21, 2014)("Before Rule 91a, Texas procedure did not have a counterpart to Rule 12(b)(6) of
the Federal Rules of Civil Procedure. Fort Bend Cnty. v. Wilson, 825 S.W.2d 251, 253 (Tex.App.-
Houston [14th Dist.]1992, no writ). In 2011, this deficiency was remedied when the Legislature
promulgated section 22.004(g) of the Texas Government Code, which provides that the
'supreme court shall adopt rules to provide for the dismissal of causes of action that have no
basis in law or fact on motion and without evidence.' See Tex. Gov't Code Ann. § 22.004(g)
(West 2013).'').
23
Schaffer, 447 S.W.3d 71, 74 (Tex.App.- Houston [14th Dist.] 2014, reh'g overruled Oct. 9,
2014)("We must decide as a matter of first impression in this court what standard of
review to apply to a trial court's ruling on a motion to dismiss under Rule 91a."); City of
Austin v. Liberty Mut. Ins., 431 S.W.3d 817 (Tex.App.- Austin 2014, no pet.);
GoDaddy.com, LLC v. Toups, 429 S.W.3d at 754. According to the spe~ language of
Rule 91a.3(a), the emerging case law applying it and the federal
p~
R~2(b)(6) decisions
. h Texas courts h ave d eemed reIevant
wh1c . ~ .~ mstant
. an d "'mstruct!Ve,,``e . Motwn
' to
·~
Dismiss is not timely and must be denied on that basis.~natively, limitations has
, <(Jv
been evasively asserted in this case and in fact and in I`` Ms. Farmer had five years to
oiJ!f
bring her instant claims, not two years, as Defenda!J~aim. Further, alternatively, Ms.
Farmer's claims are timely under applicable~ng
``di
rules of Texas case law, even
assuming the provisions of Civ. Prac. & R~ode § 16.003(a) apply, which is not the
case, as discussed at length infra. ~-
In GoDaddy.com, LLC, the 1c~A specifically held that: "Rule 12(b)(6) allows
~r:J;<0
dismissal if a plaintiff fails \``~)ate a claim upon which relief can be granted[.]
... dismissal is appropriate ;,~ court determines beyond doubt that the plaintiff can
~·~
prove no set of facts t``ort a claim that would entitle him to relief. Scanlan v. Tex. A
& M Univ., 343 F.~3, 536 (5th Cir.2003). Just as a motion to dismiss for failure to
state a claim un~kule 12(b)(6) is a proper vehicle to assert a claim of immunity under
the federal``, a motion to dismiss· under Rule 91a is a proper vehicle to assert an
affirmative defense of immunity... " I d., at 754-55. Thus, by reasonable extension a Rule
91a motion is equally the proper vehicle to assert a limitations defense. Similarly, in
Wooley, 447 S.W.3d at 75-76, the Houston 14th CCA explained:
24
"Although we aclmowledge that Rule 91a motions to dismiss are unique,
we find them to be analogous to pleas to the jurisdiction, which require a
court to determine whether the pleader has alleged facts demonstrating
jurisdiction. See Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d
217, 225-26 (Tex.2004). In that context, we construe the pleadings
liberally in favor of the plaintiff, look to the pleader's intent, and accept as
true the factual allegations in the pleadings to determine if the pleader has
alleged facts that affirmatively demonstrate the trial court's ju~i diction
over a claim. I d. at 226. Even though we are construing the jur' · ional
facts alleged in the petition, whether a pleader has aile`` ts that
demonstrate jurisdiction is a question of law that we revie novo. I d.
This determination is consistent with the requirement in ~!r 91a to take
the allegations, together with any reasonable inferences ``rue." See Tex.
R. Civ. P. 91a.1... ~
0~
Federal courts also apply a de novo standard of ~w to a trial court's
ruling on a motion to dismiss under Federa!rl;ule of Civil Procedure
0
12(b)(6). In re Katrina Canal Breaches Litip· ~95 F.3d 191, 205 Csth
Cir.2007). Rule 91a has unique language~!· 'ng dismissal of causes of
action with no basis in law or fact. Tex. 1 • P. 91a. However, Federal
Rule of Civil Procedure 12(b)(6) simi\~/&; !lows dismissal if a plaintiff
fails 'to state a claim upon which relief~ be granted"; therefore, we find
case law interpreting Rule 12(b)(6)~ructive. Fed. R. Civ. P. 12(b)(6);
see also GoDaddy, 429 S.W.3d at~W..''
Wooley, at 75-76. ,.!{@«:J
Thus, federal decisions ad~ing a defendant's assertion of a limitation defense,
as Defendants do here, are v~Qstructive." In Whiddon v. Chase Home Fin., LLC, 666
F. Supp. 2d 681, 686 (E.D~. 2009), the court said:
"Generally, th~9urt may not look beyond the four corners of .the
plaintiff's pi ngs. See Indest v. Freeman Decorating, Inc., 164 F.3d
258, 261 ,£ir.1999); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir.1996);
McCar ~v. First City Bank, 970 F.2d 45, 47 Csth Cir.1992).
Furthe re, 'a complaint that shows relief to be barred by an
a.ffi tive defense, such as the statute of limitations, may be
dismissed for failure to state a cause of action.' Kaiser Aluminum
& Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th
Cir.1982), cert. denied, 459 U.S. 1105 (1983); accord La Porte Constr. Co.
v. Bayshore Nat'l Bank of La Porte, 805 F.2d 1254, 1255 Csth Cir.1986).
Thus, a plaintiffs noncompliance with the applicable statute of
limitations' "may support dismissal under Rule 12(b)(6) where
it is evident from the plaintiffs pleadings that the action is
barred and the pleadings fail to raise some basis for tolling or
25
the like." ' Davis v. Dallas County, 541 F. Supp. 2d 844, 856
(N.D.Tex.2oo8) (quoting Jones v. Alcoa, Inc., 339 F.3d 359, 366 (5th
Cir.2003), cert. denied, 540 U.S. 1161(2004)); see Nationwide Bi-Weekly
Admin., Inc. v. Belo Corp., 512 F.3d 137, 141 (5th Cir.2007); Taylor v.
Books A Million, Inc., 296 F.3d 376, 378-79 (5th Cir.2002), cert. denied,
537 u.s. 1200 (2003).
' "A motion to dismiss under rule 12(b)(6) 'is viewe~ with
disfavor and is rarely granted.' " ' Gregson v. Zurich Amp. Co.,
322 F.3d 883, 885 (5th Cir.2003) (quoting Collins, 224 =``rat 498
(quoting Kaiser Aluminum & Chern. Sales, Inc., 677 F.2d at~)); accord
Harrington v. State Farm Fire & Cas. Co., 563 F.3~41, 147 (5th
Cir.2009); Lormand v. U.S. Unwired, Inc., 565 F. ~28, 232 (5th
Cir.2009). ' "The question therefore is whether e light most
favorable to the plaintiff and with every d resolved in his
behalf, the complaint states any valid clai r relief." ' Collins,
224 F.3d at 498 (quoting sA Charles A. Wright &~thur R. Miller, supra,
§ 1357, at 332-36); accord Lowrey v. Tex~s ~M Univ. Sys., 117 F.3d
242, 247 (5th Cir.1997). 'In other words, a nto dismiss an action for
failure to state a claim "admits the fact@' eged in the complaint, but
challenges plaintiffs rights t.o relief ba~,~upon those facts." 'Ramming,
281 F.3d at 161-62 (quoting Tel-Phon~rvs., Inc. v. TBS Int'l, Inc., 975
F.2d 1134, 1137 (5th Cir.1992))." ~
Whiddon, at 686. Based upon the com~d logic of this collective authority, two issues
are presented. First, have Defenda~aived limitations by failing to timely assert it, by
means of a Rule 91a.3(a) moti#econd, even if not, can Ms. Farmer assert a tolling
exception to § 16.003(a)? ~"\ the answer to both questions is emphatically Yes, the
instant Motion to Dism``ould be denied.
~
Prior to the ``tive date of Rule 91a, (March 1, 2013), Defendants could have
asserted a limi#ns affirmative defense much like they have attempted here. But,
under the ``c terms of Rule 91a.3(a), they were procedurally obligated to do so in
conformity therewith. s Factually, such an oversight seems particularly significant
because, since this entire series of appalling events came to light, Morris has steadfastly
8See Rule 91a.3(a)(motion to dismiss must be filed within "6o days" of movant's service with
pleading containing allegedly baseless action).
26
denied every allegation asserted against him. Instead, Defendants now move for
dismissal ostensibly pursuant to two-year limitations period set out in Civ. Prac. & Rem.
Code § 16.003(a).9 Such statute does mandate that tort claims based upon "personal
injury" must be brought "not later than two years after the day the cause of action
accrues." Id. AB "personal injury" and "accrues" are not defined in t~atute, Texas
~@
courts have supplemented it by common law. However, Ms. Farme~'hstant claims are
not time-barred, under the doctrines of equitable estopp``/or the fraudulent
concealment doctrine, as will be discussed at length infra.J;fly, while the Defendants'
having pled limitations in their Answer may have preserill.A it as an asserted affirmative
0~
defense, 10 subject to tolling as hereinafter discusse~ey waived the right to move to
dismiss this case on the basis thereof, pursuantAo~ule 91a.3(a) and the foregoing cases
0~
applying such. Consequently, the instaU~tion to Dismiss should be denied as
untimely. ~
D. The TCI-IRA l-Ias No A-~cation in the Instant Facts.
~n
9 Once again, such a position ``einferred, however, as the statute is oddly never once
mentioned in the M/MSJ. Ins``~ Defendants only cite case law, (M/MSJ, pg. 9), which discuss
and apply such. ~
10See Storck v. Tres La Qop. Owners Ass'n, Inc., 442 S.W.3d 730, 743 (Tex.App.- Texarkana
2014, reh'g overruled0 ( • 16, 2014), reconsideration en bane den'd (Oct. 7, 2014)("Rule 94 of
the Texas Rules of Procedure requires a party to plead affirmatively those affirmative
defenses listed i rule 'and any other matter constituting an avoidance or affirmative
defense.' Tex. R. . P. 94· ' "If an affirmative defense is not pleaded or tried by consent, it is
waived," and 1al court has no authority to make a fact finding on that issue.' See Compass
Bank v. M n. Servs., Inc., 152 S.W.3d 844, 851 (Tex.App.- Dallas 2005, pet. denied)
(quoting REI of Tex., Inc. v. Katar Corp., 961 S.W.2d 324, 327-28 (Tex.App.- Houston [1st
Dist.] 1997, pet. denied)); Matter of Marriage of Collins, 870 S.W.2d 682, 685 (Tex.App.-
Amarillo 1994, writ denied). 'The party asserting the affirmative defense bears the burden of
pleading and proving its elements.' Compass Bank, 152 S.W.3d at 851 (citing Welch v. Hrabar,
no S.W.3d 601, 6o6 (Tex.App.-Houston [14th Dist.]2003, pet. denied)).'').
27
Defendants' attempt to invoke the provision of the TCHRA as a purported
preemptive bar to Ms. Farmer's claims is a complete red herring. In the companion case
of Hill, et al v. Morris, et al, Defendants trotted out the exact same strategy, (Response
Ex. C), and Hon. Jeff Shadwick unequivocally rejected it, (Response *E). The Hill
plaintiffs' pleading setting out a thorough response thereto, (Respon~. D, 83 pages),
. attachdh
1s e ereto and.mcorporate dherem,
. so a more succmct
. u .
r~onse 1s appropnate
.
¢~
here. ~
o~dJ .
The TCHRA is found in Chapter 21 of the Texas La~ Code; and, indeed, its very
~
placement there denotes the Legislature's intent~that it apply to workplace
situations, not non-work related intentional tort``eeping with such, § 21.051 of that
Chapter addresses workplace discrimination pprovides, in relevant part:
~
"An employer commits an unla~lJemployment practice if because of
race, color, disability, religion, se&ational origin, or age the employer:
(1) fails or refuses to hire .:.~ndividual, discharges an individual, or
discriminates in a"'~h~r manner against an individual in
connection with ~pensation or the terms, conditions, or
privileges of e``Oy'ment; or
(2) limits,se}for~s, or classifies an employee or applicant for
employmet_U:i)in a manner that would deprive or tend to deprive
an in~}jb~al of any employment opportunity or adversely affect
in any~'tter manner the status of an employee."
Tex. Labor Cod~.§ 21.051 (Vernon). Basically, as a matter of both legislative intent
and the v~rding the Legislature employed in the statute, both this sub-section
specifically and Chapter 21 generally were designed to apply the anti-discrimination
tenants of the federal Title VII to Texas workplaces. (See Tex. Labor Code§ 21.001). But,
it is critical to note that Chapter 21 applies to actions in the workplace which implicate
28
the conditions of employment. In Nagel Mfg. & Supply Co. v. Ulloa, S12 S.W.2d 7S, So
(Tex.App.-Austin 1991, writ denied), the CCA explained:
"Sexual harassment, as the court defined it for the jury, 'means to engage
in unwelcome sexual advances, requests for sexual favors, sexually abusive
or vulgar language, or other verbal, visual or physical conduct,' if
compliance is made a condition of employment or used as a
basis for an employment decision or if such conduct ill'*feres
with worlc performance or creates an intimidating``tile or
offensive working environment. (Emphasis added)." (Jl
Ulloa, at So. See also Wal-Mart Stores, Inc. v. Itz, 21 S.W.3d ~o (Tex.App.- Austin
2000, reh'g overruled, rev. denied)("Under Title VII and~exas Human Rights Act,
an employer may be held vicariously liable for quid-p~uo sexual harassment by its
~
supervisor. See Burlington Indus., Inc. v. Ellerth, ~U.S. 742, 753 (199S); Ewald v.
Warnick Family Foods Corp., 87S S.W.2d 65~, ~(Tex.App.-Corpus Christi 1994, writ
denied). The elements of the cause of acti?tlas follows: (1) A supervisor (2) because
of sex (3) subjects an employee to (4)~;elcome conduct that (5) affects a tangible
aspect of the employment relatio``· See Ellerth, 524 U.S. at 752-54; Meritor Sav.
Bank, FSB v. Vinson, 477 U``7, 64-67 (1986); Ewald, S7S S.W.2d at 659. An
employer's liability in such"~ derives from the law of agency. Because discriminatory
o~"
conduct ordinarily lies ~ide the agent's scope of authority, for a principal to be held
~-
liable it must be sh~that the agency relationship aided the supervisor in committing
the discriminat#ct. See Burlington Indus., 524 U.S. at 759-60.").
In 4e House, Inc. v. Williams, 313 S.W.3d 796, 802-03 (Tex. 2010), the
Supreme Court addressed a claim arising out of an unconsented, inappropriate
workplace touching. In holding the TCHRA applicable to such claim, the Court
determined: "Today's question is whether employer liability for unwanted sexual
touching by a coworker (simple assault under Texas law given its 'offensive or
29
provocative' nature) is limited to a tailored TCHRA scheme that specifically covers
employer liability for sexual harassment. We think the answer should be yes." Id., at
802-03. That is manifestly distinguishable from the instant facts. Morris didn't abuse
Ms. Farmer to "affect a tangible aspect of the employment relationship," a key element
of a TCHRA claim, he drugged her unconscious to sexually molest her~
~..,~
photograph
her nude for his own deviant gratification, just as he has confessed i~eral court.
Also, because Title VII and the TCHRA are desig#o achieve identical
purposes, federal court decisions with regard to the form`` instructive as to claims
under the latter. See Prairie View A & M Univ. v. Chnfttn, 381 S.W.3d 500, 504 (Tex.
o~r
2012), reh'g denied (Nov. 16, 2012)("The TCH~as 'enacted to address the
specific evil of discrimination and retali~n in the workplace,' as well as
``d)
to coordinate and conform wi~ederal anti-discrimination and
retaliation laws under Title VII. ~ty of Waco v. Lopez, 259 S.W.3d 147, 153-
55 (Tex.2oo8). (Emphasis added)."``
That the TCHRA has no~tcation here is manifestly evident from the M/MSJ,
pg. 10, and cases cited at ~ Defendants cannot and do not point to a single "term,
condition, or privilege ``e
plaintiffs employment" affected by "harassment." (Id.).
~
And, their misc-``ization of her claims as based solely upon "unwelcome sexual
harassment," (~- pg. 10, n. 46), would be laughable, were it not so offensive.
Defendant`` Padilla v. Flying J, Inc., 118 S.W.3d 911 (Tex.App.- Dallas 2003, no
pet.), in support of the TCHRA's application. Yet, in that case, the CCA held: "The
legislature enacted the Texas Commission on Human Rights Act to correlate state law
with federal law in the area of employment discrimination. See Tex. Lab. Code Ann. §
21.051 (Vernon 1996); Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 485
30
(Tex.1991). TCHRA prohibits an employer from discriminating against an individual
with respect to compensation, or the terms, conditions, or privileges of employment
because ofrace, color, disability, religion, sex, and national origin. Tex. Lab. Code Ann. §
21.051 (Vernon 1996); Williams v. Vought, 68 S.W.3d 102, 107 (Tex.App.- Dallas 2001,
no pet.). To establish a claim for sexual harassment, a plaintiff mu~rove (1) she
~!!@
belongs to a protected group; (2) she was subjected to unwelcom~fassment; (3) the
~
harassment was based on sex; and (4) the harassm~Uaffected a term,
condition, or privilege of her employment. Gulf S~Toyota, Inc. v. Morgan,
89 S.W.3d 766, 770 (Tex.App.- Houston [1st Dist.] 2oo~no pet.). (Emphasis added)."
o;;J[J"
I d., at 914-15. There, the entirety of the plaintiffs c~aint was offensive comments by
her boss to her at work. Neither of Ms. Farmer~
?~
claims in this case have anything
whatever to do with employment decisi`` conditions of employment. They have
exclusively to do with a confessed pre-~itated, intentional sexual assault committed
well outside the workplace, in fact i~=?emote state.
Similarly Defendants cite Willborn v. Formosa Plastics Corp. Of Texas, No. 13-
04-007-CV, 2005 WL 1797022, at *7 (unreported) (Tex.App.- Corpus Christi-Edinburg
~'
July 28, 2005, reh'g anUh'g en bane den'd, rev. den' d), (Id., pg. 10, n. 46), although
~
frankly Defendants~illiot make clear why. There, the CCA considered a Title VII claim
and noted: "W~n includes a claim for sexual harassment, which is one form of
prohibited ~oyment discrimination. Hoffmann-La Roche, Inc. v. Zeltwanger, 144
S.W.3d 438, 445 (Tex.2004); see also Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64
(1986); Ewald v. Warnick Family Foods, Corp., 878 S.W.2d 653, 658 (Tex.App.- Corpus
Christi 1994, writ denied)... Courts have traditionally defined 'unwelcome sexual
harassment' as 'sexual advances, requests for sexual favors, and other verbal or physical
31
conduct of a sexual nature that is unwelcome in the sense that it is unsolicited or
unincited and is undesirable or offensive to the employee.' Wyerick v. Bayou Steel
Corp., 887 F.2d 1271, 1274 (5th Cir.1g8g).'' Id., at *7. Respectfully, so what?!
Do Defendants seriously suggest that what Morris did was no more than an
"unwelcome advance"? If so, it seems very strange that in the feder~iminal case
~I@
against him, he confessed to a sexual abuse crime. The Defendan~nt the TCHRA to
apply because it is yet another effort to derail this case ~ upon a contrived
~
limitations theory. However, the relegation of the sexQ~lestation of a drugged,
insensate woman to a mere employment grievance~nnot possibly be what the
o!ff!r
Legislature had in mind in enacting the TCHRA, ~ is emphasized by the statute's
very name: the Texas Commission on Huma .· ~hts Act! And, Defendants do not,
o~f
because they cannot, direct the Court to ~ngle word in that statute, its legislative
history or any decision applying it, ~h mandates or permits such a cruel and
inhuman result. IJ:jl@
In a substantial footnot``xas Mut. Ins. Co. v. Ruttiger, 381 S.W.3d 430, 461,
n.3 (Tex. 2012), reh'g dep.~(Sept. 21, 2012), the Supreme Court expressed some
r§!"
serious policy conside~ns which bear directly upon the validity of Ms. Farmer's
.~
instant tort claims:QY
"We hav~eatedly addressed situations in which common law claims
and ~o~ remedies seem to overlap, and we have embraced a
fra~rk to guide our analysis in such cases. The touchstone of this
analysis, as in all statutory interpretation, is legislative intent. We start
with the proposition that statutes abrogating common law
causes of action are disfavored. Cash Am. Int'l Inc. v. Bennett, 35
S.W.3d 12, 16 (Tex.2ooo). A statute banishing a common law right
' "will not be extended beyond its plain meaning or applied to
cases not clearly within its purview." 'Id. (quoting Satterfield v.
Satterfield, 448 S.W.2d 456, 459 (Tex.1969)). Abrogation by
implication is disfavored. Id. For that reason, courts must
32
examine whether the statute's language 'indicate[s] clearly or
plainly that the Legislature intended to replace' a common law
claim with an exclusive statutory remedy, and we 'decline [] to
construe statutes to deprive citizens of common-law rights
unless the Legislature clearly expressed that intent.'3 Id.
3 We have applied this framework repeatedly. For example, in
Lopez, which the Court cites but then seems to forget about we
noted that "[w]hether a regulatory scheme is an exclus#'ve r dy
depends on whether 'the Legislature intended for the r ~ tory
process to be the exclusive means for remedying the em to
which the regulation is addressed.' " City of Waco v.'>;!kopez, 259
S.W.3d 147, 153 (Tex.2oo8) (quoting In re Sw. Be_~,jpl. Co., 235
S.W.3d 619, 624-25 (Tex.2007)) (emphasis adde~ Likewise, in
Wa.tfle House, Inc. v. Williams, 313 S.W.3d 79~2 (Tex.2010),
we held that 'the legislative creation of a stat~y remedy is not
presumed to displace common-law remid'~ To the contrary,
abrogation of common-law claims is disC t51ied.' Acknowledging
the centrality of legislative intent, see id. 09 n. 66, we looked at
the statute's 'meticulous legislative desili;fi\ id. at 805. Similarly, we
have held that 'absent clear legislatbeYntent we have declined to
construe statutes to deprive citizen ~ mmon-law rights.' Dealers
Elec. Supply Co. v. Scoggins . Co., 292 S.W.3d 650, 66o
(Tex.2009) (emphasis added)~ have also written that 'statutes
can modify common law rulefB ut before we construe one to do so,
we must look carefully to /;!,~ ure that was what the Legislature
intended.' Energy Serv. qef{,!Jbj Bowie v. Superior Snubbing Servs.,
Inc., 236 S.W.3d 19``4 (Tex.2007) (emphasis [in original]
(Emphasis added).'' Q
Ruttiger, at 461, n.3. <~
cg'%
And, in Perez v.!{jjJJing Centers-Devcon, Inc., 963 S.W.2d 870, 872 (Tex.App.-
~
San Antonio 1998,i!l>~ denied), the CCA made clear that: "The TCHRA prohibits
employment ~crimination on the basis of 'race, color, disability,
religion, ``national origin, or age.' Tex. Lab. Code Ann. § 21.052 (Vernon
1996). The act essentially codified federal employment law. Compare 42
U.S.C. § 20ooe (1994) (prohibiting employment discrimination on the basis of race,
color, religion, sex or national origin), § 12101-213 (1994) (prohibiting employment
discrimination on basis of disability) and 29 U.S.C. §§ 621-34 (1994) (prohibiting
33
employment discrimination on basis of age), with Tex. Lab. Code Ann.§ 21.052 (Vernon
1996) (prohibiting same conduct)." Id., at 872. Then, in Jackson v. Creditwatch, Inc.,
84 S.W.3d 397, 402 (Tex. App.- Fort Worth 2002) rev'd in part, (on unrelated grounds)
157 S.W.3d 814 (Tex. 2005), the CCA noted that: "The Perez court examined the
legislative history and legislative intent behind the ena~ent of the
TCHRA and concluded: "Notably, neither an intent to se~ps an exclusive
_ _p~
remedy, nor an intent to preclude common law 'CG~es of action, is
~"'-
contained within the stated purposes of the TCJiliA. Additionally, the
. Qv
statute contains no provision that implies th'ifu,TCHRA's administrative
¢~v
review system precludes a lawsuit for cwc::hon law causes of action.
Instead, the opposite proposition canc-'fi:j implied from section 21.211.
0~
(Emphasis added)." Id., at 402. Therefore~ again, there is nothing in the TCHRA's
"meticulous legislative design" which p~rts to justify Defendants' tortured reading of
it merely to argue insulation from ~lity from utterly appalling misconduct. Indeed,
~
their very argument of such 0~ slap in the face of every mother, wife, sister and
daughter in the State of Te``
Ms. Farmer was ``arassed or discriminated against. She was sexually violated,
w
physically abused ~ emotionally humiliated. This case is. not about the legitimate
work-related gr~ces of being patted on the fanny or having a breast brushed against
in the w4ce, or being made to suffer annoying workplace humor directed
disparagingly at women, or not getting a raise or promotion because of a gender-based
glass ceiling. Rather it is about truly vile and criminally confessed sexual abuse
degradation. The Defendants should be held legally and morally accountable in a public
trial before a jury of the Parties' peers for their reprehensible conduct.
34
E. Defendants Completely Fail to Meet the Traditional Summary
Judgment Standard.
The basis upon which Defendants seek summary judgment on each of Ms.
Farmer's claims is solely Civ. Prac. & Rem. Code § 16.003(a)'s two (2) year limitation
period. For the reasons discussed at length supra, the MSJ should fa~Respectfully,
while Defendants are correct that summary disposition may be soug~rsuant to Tex.
R. Civ. P. 166a, in their pursuit thereof here that's all they are cor~Yabout. Defendants
6~
cite Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2~, as the authority upon
o{P
which they seek summary judgment, (M/MSJ, pg. 13, n.~, but fail to consider what
~
the Supreme Court therein said: "To prevail o~,~aditional summary-judgment
motion, a movant must show that no genuine is~Wr material fact exists and that it is
entitled to judgment as a matter of law. ~ R. Civ. P. 166a(c). A movant who
~
conclusively negates at least one essen~tiJllement of a cause of action is entitled to
summary judgment on that claim.~ff:ftt-Williams Co. v. Diaz, 9 S.W.3d 801, 803
(Tex.1999). When reviewing a su~ry judgment, we take as true all evidence favorable
to the nonmovant, and we in~ every reasonable inference and resolve any doubts in
the nonmovant's favorU!@J~ce Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911
(Tex.1997); Friendsw?llid Dev. Co. v. McDade & Co., 926 S.W.2d 280, 282 (Tex.1996)."
o;{,({Ji"
Id., at 215. See ~HS Cedars Treatment Ctr. of DeSoto, Texas, Inc. v. Mason, 143
S.W.3d 79~(Tex. 2004)(same); M.D. Anderson Hosp. & Tumor Inst. v. Willrich,
28 S.W.3d 22, 23-24 (Tex. 2000)("Under Texas summary judgment law, the party
moving for summary judgment carries the burden of establishing iliat no material fact
issue exists and iliat it is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166
a(c); Rh6ne-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222 (Tex.1999); Worniclc Co. v.
35
Casas, 856 S.W.2d 732, 733 (Tex.1993) ... When reviewing a motion for summary
judgment, the court takes the nonmovant's evidence as true, indulges every reasonable
inference in favor of the nonmovant, and resolves all doubts in favor of the nonmovant.
See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985)."). As
the CCA noted in Schrank v. Laerdal Med. Corp., 440 S.W.3d 250, 256 ~.App.- Waco
,;=>'!.{@
2013, rev. den'd Feb. 14, 2014), "The function of a summary judg~t
"'0.
is to eliminate
patently unmeritorious claims and untenable defenses, not ``rive litigants of the
right to a trial by jury. Tex. Dep't of Parks & Wildlife v. ~da, 133 S.W.3d 217, 228
(Tex.2004)." Id., at 256. Here, the Defendants have nifu,;ted nothing, much less any
·~
prima facie elements of Ms. Farmer's claims. rJ/.!!!'
At most, what Defendants have demons,~d to the Court that the Defendants
·~
and Ms. Farmer will present at trial starlddrent aspects of the facts surrounding her
sexual abuse. Conflicting evidence giv~rise to genuine issue(s) of fact, Randall v.
Dallas Power & Light Co., 752 S~d 4, 5 (per curiam); and, so does ambiguous
~
evidence, Parker v. Yen, 823 S~d 359, 365 (Tex.App.- Dallas 1991, no writ). See also
Ellert v. Lutz, 930 S.W.=?~2, 155 (Tex.App.- Dallas 1996, no writ); Frazin v.
rg~
Grunning, 05-01-0049~, 2002 WL 84457, *1 (Tex.App.- Dallas Jan. 23, 2002, pet.
~
denied). "[I]n sum~ judgment proceedings, courts are not to weigh the evidence or
determine its c&~ility. It is the court's duty to determine if there are any fact issues to
be tried. ~kian v. Penn, 151 Tex. 412, 252 S.W.2d 929." White v. Cooper, 415
S.W.2d 246, 250 (Tex. Civ. App.- Amarillo 1967, no writ). And, "summary judgment is to
be applied with caution and should not be granted where there is doubt as to the facts."
In rePrice's Estate, 375 S.W.2d 900, 904 (Tex.Sup.1964)(superseded on other grounds
in Stiles v. Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex. 1993)); Kiser v. Lemco
36
Indus., Inc., 536 S.W.2d 585, 590 (Tex. Civ. App.- Amarillo 1976, no writ). Further, in
Dan Lawson & Associates v. Miller, 742 S.W.2d 528, 530 (Tex.App.- Fort Worth 1987,
no writ), the court held that: "Summary judgment should never be granted when the
issues are inherently those for a jury or trial judge, as in cases involving intent, reliance,
reasonable care, uncertainty and the like. Kolb v. Texas Emp. Ins. A~ 585 S.W.2d
~@
870, 873 (Tex.Civ.App.- Texarkana 1979, writ refd n.r.e.)." Id., at 5~
Oddly, Defendants cite the federal decisions, Celotex ~v. Catrett, 477 U.S.
317, 323 (1986), and Little v. Liquid Air Corp., 37 F.3d ~ 1075 (5th Cir. 1994), in
support of their MSJ, (Id., pg. 13, n. 58). Inasmuch as th~ cases address Fed. R. Civ. P.
0~
56, they are wholly inapplicable to the instant anal~ Indeed, in Casso v. Brand, 776
S.W.2d 551, 555-56 (Tex. 1989), the Texas SJW~ Court made it explicitly clear that
Texas courts are guided by different stand~together from those which bind federal
courts regarding the analysis of summa~-;;e disposition:
"Summary judgmentt;~ieral courts are based on dlfferent
assumptions, with erent purposes, than summary
judgments in Texaf1_~ 1 the federal system, '[s]ummary judgment
procedure is properly Regarded not as a disfavored procedural shortcut,
but rather as an int part of the Federal Rules as a whole, which are
designed "to sec e just, speedy and inexpensive determination of
every action." Fe ule Civ. Proc. 1.' Celotex Corp. v. Catrett, 477 U.S. 317,
327 (1986)... '~
o~(Jr
Texas l r;Jf;f course, is different. While the language of our rule is
interpretation of that language is not. We use summary
u«iifts merely 'to eliminate patently unmeritorious claims
an tenable defenses,' City of Houston v. Clear Creek Basin
Authority, 589 S.W.2d 671, 678 n. 5 (Tex.1979), and we never shift the
burden of proof to the non-movant unless and until the movant
has 'establish[ed] his entitlement to a summary judgment on
the issues expressly presented to the trial court by conclusively
proving all essential elements of his cause of action or defense
as a matter of law.' Id. at 678. (Emphasis added)."
37
Casso, at 555-56. And, Casso remains the rule in Texas, regarding summary judgment
consideration.ll
In Walton v. Phillips Petroleum Co., 65 S.W.3d 262, 271 (Tex.App.- El Paso 2001,
38
assault: "The elements for civil assault mirror those required for criminal assault. See
Johnson v. Davis, 178 S.W.3d 230, 240 (Tex.App.-Houston [14th Dist.] 2005, pet.
denied). A person commits an assault if he intentionally or knowingly causes physical
contact with another when the person knows or should reasonably believe that the other
will regard the contact as offensive or provocative. See Tex. Pen. Code~ 22.01(a)(3)
(Vernon Supp.2007)." Id., at 436. In Umana, the assault ;P~
allege~as a supervisor's
snatching an apron string from an employee's neck, an incide``ing no more than "a
few seconds," (Id.). Here, as discussed at length supra, fa~e egregious conduct was
involved. In Ms. Farmer's Original Petition, (Response -~ A), she made very clear that
0{/p-
her assault claim was based upon Morris' intentionq)_~gging of her for the specific and
illicit purpose of sexually molesting her and taki~nauthorized nude photos of her, all
``J
of which he has confessed! (See Response~. Thus, to attempt to recharacterize her
claim as analogous to that involved in U~;;a is, respectfully, wholly without merit.
In the same way, Defendant~ation of Polly v. Houston Lighting & Power Co.,
~
803 F. Supp. 1, 7 (S.D. Tex. ~), (Id., at pg. 13, n. 59), is inapposite. That federal
decision dealt with a Title -~' claim and abusive physical contact on the job. It has
©~'I)
nothing to do with(j\1s. Farmer's sexual molestation while drugged into
~
unconsciousness. ~larly, Defendants cite Fisher v. Westmont Hospitality, 935
~if;))
S.W.2d 222, 2~ex.App.- Houston [14'11 Dist.] 1996, no pet.), (Id., pg. 13, n. 6o),
which is e~ irrelevant as there the plaintiff asserted a straightforward premises
liability slip-and-fall claim. Likewise, Brothers v. Gilbert, 950 S.W.2d 213 (Tex.App.-
Eastland 1997, reh'g overruled, rev. den'd), (cited at Id., pg. 14, n. 61), considered a
workplace sexual harassment case, in whicll the court specifically noted: "There is no
competent evidence offraudulent concealment..." Id., at 216. That determination readily
39
distinguishes the case from the instant analysis. Finally, Marburger v. Jackson, 513
S.W.2d 652, 654 (Tex. Civ. App. 1974, writ refused n.r.e.), (cited Id., pg. 14, n. 61), dealt
with a physical assault arising out of a workplace-related scuffle.
Defendants attempt the same self-serving recharacterization of Ms. Farmer's
invasion of privacy claim. Defendants contend Ms. Farmer was aw~of the nude
photos of her on the night they were taken, citing a mere
R,rfl/! her deposition
snip~
testimony, (M/MSJ, pg. 15, n. 70 and 71). First, that's a mani~actual distortion, as
~
already explained in detail, supra at pgs. 19-21. Second, ~eady explained in detail
supra, this claim should be controlled by Civ. Prac. & R~. Code § 16.0045(a)(1)'s five
. o~"
(5) year limitation period. Alternatively, the limi~n period was tolled under the
doctrine of fraudulent concealment, since Mor~ent to absurd lengths to lie to Ms.
O~,J!
Farmer about taking the photos, and she ~o actual knowledge of their existence or
what they depicted until May, 2012, w~Ms. Farmer actually learned about both from
the FBI. In that regard, it is mos``s that Defendants cite Bell v. Philadelphia Int'l
Records, 981 F. Supp. 2d 621,~ (S.D. Tex. 2013), (M/MSJ pgs. 14-15, n. 68). While
the Bell court did state that •~laintiffs allegations that a record label misappropriated
©~{P
his name, image and lil~ss for gain was a claim based on invasion of privacy and that
~
since he failed to ~nt evidence or argument as to when the claim arose, but the
apparent event#urred "long ago", the claim was time-barred, (Id.); the court also
said: "Clo~'1!lated to the discovery rule is the doctrine of fraudulent concealment.
Unlike the discovery rule, fraudulent concealment is an equitable doctrine that is fact-
specific. Shell Oil Co. v. Ross, 356 S.W.3d 924, 927 (Tex.2011). To invoke this exception,
Bell must show that the defendants 'actually knew a wrong occurred, had a fixed
purpose to conceal the wrong, and did conceal the wrong.' Id. Even then, '[f]raudulent
40
concealment only tolls the statute of limitations until "the fraud is discovered, or could
have been discovered with reasonable diligence." 'Id. (quoting B.P. Am. Prod. Co. v.
Marshall, 342 S.W.3d 59, 67 (Tex.2011))." Thus, Bell supports the timeliness of Ms.
Farmer's invasion of privacy claim, even were the Court to decide it was not part and
parcel of her sexual abuse. She learned of the photos and what they slo~d only after
. ;Fv
the FBI seized them from Morris and showed them to her in May~2. This suit was
filed on December 13, 2013, (Response Ex. A), nineteen (19) u:#thereafter.
In summary, when all of the facts of this case are ~ered, it becomes crystal
clear that Defendants have completely failed to state ~,~per basis for Tex. R. Civ. P.
0~
166a(c) summary judgment, as a matter of both fact~ law.
CONCLU~{B~
For each and all of the foregoing r~s, Ms. Farmer respectfully requests this
Court to deny Defendants' M/MSJ in ev~ particular. Ms. Farmer has stated completely
viable tort claims for sexual assaul~d invasion of privacy integrally related thereto.
~
Her claims are timely pursua~Civ. Prac. & Rem. Code § 16.0045(a). Alternatively,
even assuming § 16.003(a) "~ied to her invasion of privacy claim, its limitation period
&l"
was tolled until May, ~' when Ms. Farmer actually learned from the FBI that the
~
nude photos of her~y existed and what they depicted. Moreover, Ms. Farmer's two
tort claims ha#solutely nothing to do with the TCHRA. Defendants' Motion to
Dismiss is ``y untimely and their Traditional Motion for Summary Judgment fails as
having no factual basis and hence no legal vitality. Defendants should not be permitted
to unilaterally characterize Ms. Farmer's claims to suit their desire to avoid 'legal and
moral responsibility for her egregious sexual abuse and Ms. Farmer's claims should be
fully aired in a public trial upon their merits by a jury of the Parties' peers.
41
Respectfully submitted,
THE LAW FIRM OF ALTON C. TODD
By: ----,-,-------,,-,-----
Jeffrey N. Todd
t
State Bar No. 24028048.
312 South Friendswood e
Friendswood, Texas~
281-992-8633 (f .
281-648-8633 c~· ile)
ATTORNEYS F LAINTIFF
~
0~
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Q$
os.t£@
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a ~
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42
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was forwarded to the
counsel listed below, via the method(s) indicated, on this the 2oth day of February, 2015:
Gregg M. Rosenberg
3555 Timmons Lane, Suite 610
Houston, Texas 77027
Via Facsimile, Efile or CM/RRR
43
12/13/2013 7:52:38 AM
Chris Daniel- District Clerk Harris County
Envelope No. 7311.9
2013-74668 I Court: 215 By; Nelson cuero
No. _ __
ANDREA FARMER § IN THE DISTRICT COURT OF
§
V. § HARRIS COUNTY, TEXAS
HENRI MORRIS and
§§ ,';0L
~
SOLID SOFTWARE SOLUTIONS, INC. § _JJ!fl
d/b/a EDIDLE SOFTWARE § JUDICl!\~TRICT
PLAINTIFF'S ORIGINAL PETITION .~rrtf
TO THE HONORABLE COURT: f{f;~"
Plaintiff, ANDREA FARMER, eomplains of HENRI ~S and SOLID SOFTWARE
SOLUTIONS, L.L.C., d/b/a EDIBLE SOFTWARE, ani/support hereof would show as
follows:
Discovery.
1. Pursua11t to TEX. R. CN. P. c , Plaintiff intends to conduct discovery under
Rule 190.3, Leve\2,
Texas.
2.
3.
, "'"'"
Plaintiff, AND~ FARMER ("F'ARMER"), is a resident of Aransas County,
place of business at 3603 Westcenter Drive, Suite 100, Houston, Texas
77042.
4. Defendant SOLID SOFTWARE SOLUTIONS, L.L.C., d/b/a EDIBLE
SOFTWARE, is a domestic limited liability company and may be served by serving its
EXHIBIT
i t'IJ''
registered agent, Henri Mon·is, at its registered b11siness address of3603 Westcenter Drive, Suite
100, Houston, Texas 77042.
Request Pursuant to Rule 28
5. To the extent that Defendants are conducting business under an am~!!la name or
trade name, this suit is brought under TEX. R. CN. P. 28, and Plaintiff maKe~:;!' that, upon
answering this suit, Defendants make answer in their correct legal and tratf~8;n1es.
Jurisdiction & Venue
6. This Conrt has personal jurisdiction over all pa.J~ilfo this suit. The Court has
subject matter jurisdiction over this case because in controversy is within the
jurisdictional limits of the Court, and no other Court ffi~,.,:ive. jmisdiction over this matter.
7. Venue is proper because the defendant has its principal place of
business in Harris Coun1y, and the claims corporate and individual defendants arise
out of the same transaction or series of trm1~1))l'lfeJJtdaJJt HENRI MORRIS was the President and CEO of the
as Plaintiff FARMER's direct supe1visor.
9. of 2011, Defenda11t MORRIS, acting in his capaci1y and within the scope
of his dun~>B' President and CEO of Defendant SOLID SOFTWARE SOLUTIONS directed
FARMER to join him on a business trip to New Jersey and New York to meet clients. During
this business trip, Defendant MORRIS dmgged FARMER by putting an unknown substance into
a drink, unbeknownst to FARMER. Dming this time, MORRIS attempted to sexually assault
2
FARMER and took pich1res of her while she was unconscious. Because FARMER was
unconscious she did not know and was not able to know that impermissible pictures had been
taken of her until she was shown the pictures in or around March of2012,
10.
Causes of Action
A. Assault as to Defendant HENRI MORRIS
Defendant MORRIS intentionally caused physical c~t
, ~
with Plaintiff
FARMER directly and throngh the instmmentality of drugs, while ~ or should. reasonably
have known that FARJ:viER would find that contact offensiv.ee mor'IJcative.
SOFTWA~LUTIONS, L.L.C.
0
B. Assault as to Defendant SOLID
cla~fendant MORRIS was employed in
II.
a managerial capacity by Defendant SOLID
FARMER's supervisor. At all times
sr
At all times relevant to FARJ\ffiR's
relevan~ose
ARE SOLUTIONS, L.L.C., and was
claims, Defendant MORRIS was acting
D~dant SOLID SOFTWARE SOLUTIONS, L.L.C.,
within the scope of his employment by
and exercised control over FARM=-``t:ue of his managerial authority as President and CEO
of Defendant SOLID SOFTWA9~sOLUTIONS, L.L.C., and as FARMER's supervisor.
Consequently, Defendant ARE SOLUTIONS, L.L.C., is vicariously liable for
of Privacy as to Defendant HENRI MORRIS
12. MORRIS intentionally intruded on Plaintiff FARMER's seclusion
have known that FARMER would find that intrusion highly offensive or provocative to a
reasonable person.
3
B. Invasion of Privacy as to Defendant SOLID SOFTWARE SOLUTIONS, L.L.C.
13. At all times relevant to FARMER's claims, Defendant MORRIS was employed in
a managerial capacity by Defendant SOLID SOFTWARB SOLUTIONS, L.L.C., and was
FARMER's supervisor. At all times relevant to those claims, Defendant MO~vas acting
within the scope of his employment by Defendant SOLID SOFTWARE S~NS, L.L.C.,
and exercised control over FARMER by virtue of his managerial autlwri~resident and CEO
of Defenda11t SOLID SOFTWARE SOLUTIONS, L.L.C., and ~R's supervisor.
Consequently, Defendant SOLID SOFTWARE
the actions of its President and CEO. o,
SOLUTIONS~.,
@i
is vicariously liable for
14. As a result of the foregoing, suffered the following
damages for which she seeks recovery:
a. Physical pain, suffering, an~:irment from the time of the incidents described
herein through trial~, .
b. Mental anguish m · iety from the time of the iucidents described herein
through trial;
c.
d. @siltnir•gs and earning capacity sustained fi·om the date of the incident
to the time of trial.
Exemplary Damages
15. FARMER would show that the actions of Defendant MORRIS,
individnally and as imputed to Defendant SOLID SOFTWARE SOLUTIONS, L.L.C., were
done intentionally and with malice and/or gross negligence. Consequently, Plaintiff FARMER
4
seeks exemplaty damages in an amount within the discretion of the jmy and within the
jurisdictional limits of the Comt.
Prejudgment and Post-judgment Interest
16. Plaintiff FARMER fmther seek prejudgment and
allowed by law.
Notice to Maintain Records
17. Notice is SOFTWARE
hard copy or electronic formats that reference either their employment with
18. Plaintiff FARMER hereby trial by jmy on all issues presented in this
case.
WHEREFORE, PREMISES~IDERED, Plaintiff ANDREA FARMER respectfully
request that the Defendants be ~ to appear herein and that upon answer and trial of this
together with pre-judgment and post-judgment interest at the
that they have such other and fmther relief, at law or in equity, to which
the.ms,elv.es en ti tied.
5
Respectfully submitted,
THELAWFIRMOF ALTON C. TODD
By: _____.,_J8illy~__,N.l.-'-.--±_Tatl~----,.-
Jeffl"ey N. Todd ~
State Bar No, 20092000 ~
312 S. Friendswood D~··,
~v
Friendswood, Texas 7,
(281) 992-86il3
(281) 648-8633 Pi nile No.
ATTORNEYS PLAINTIFF
./
6
12/18/201311:19:53AM 713-755-1451 Page 214
Filed 13 December 18 A11:20
Chris Daniel· District Clerk
Harris County
FAX15672436
CAUSE NO. 2013-74668
ANDREA FARMER § IN THE DISTRICT COURT OF
Plainti!f, §
§
v. § HARRIS COUNTY, TEXAS
§
HENRI MORRlS and SOLID §
.i&
JUDICIA~iRICT
SOFTWARE SOLUTIONS, INC. d/b/a §
EDIBLE SOFTWARE § 2l5TH
Dettmdmtt.
DEFENDANT'S ORIGINAL ANSWE~
¢lf
o:fj
Det~is, Suite 200
Ho_t~n, Texas 77002
~ 960-8300 (Tel)
~3) 621-6670 (Fax)
~Attontey-in-Charge tor Defendnt1ts
OfCounsel: ~
ROSNEBERG SPROVACH `` ATTOR[\!EYS FOR DEFENDANTS
©;
313 S.W.3d 796, 803 (Tex. 2010), ~equent to Wajjle House, there
~
have been several comt of appeals opinions that cited Q``t injected a jurisdictional approach
to the analysis in holding for employers in claims0 w!w.re employees assert common law claims
§:df
that are pre-empted by specifically written ~ment discrimination statutes. One of these
cases, Pruitt v. International Association/J!tFire Fighters, 366 S.W.3d 740 (Tex. App ~
Texarkana, 2012 (no pet.) took th~*oach, holding that in fact patterns such as the ones
before this Court, there is no j t~tion to hear the claims asserted by the Plaintiffs. Pruill
relied on several cases that !~hat a failure to file employment based discrimination claims,
including those alleging ~1lous instances of sexual harassment, with the proper administrative
~
agency (In this case~ Texas Workforce Commission- Civil Rights Division "TWC-CRD")
deprives the co#Jurisdiction to hear the case.
D~ts' Plea to the Comt's Jurisdiction should be granted purely as a matter of law
because Plaintiffs have inconectly brought forth common law claims of assault for alleged
conduct that falls within the scope of the Texas Commission for Human Rights Act's
("TCHRA") exclusive remedy for workplace sexual harassment. Defendants are cognizant of
2
the severity of the allegations being asserted by each of the Plaintiffs in tllis suit. Regardless,
even if the allegations of assault of a sexual nature were ttue, the exclusive remedy lies within
the confines of the TCHRA. This co uti has no jurisdiction to bear them because administrative
prerequisites were circumvented by Plaintiff Ked Hill, or in the case of plaintiffs Michelle
Barnett and Stacy Stewati, wholly ignored. ``
STATEMENTOFFACTS 1 ~U
I. Plaintiffs' Employment History with Defendant Edible So~
~
a. Barnett's Employment History ~
Plaintiff Michelle Barnett ("Bamett") began het• ~yment with Defendant Edible
.
Software on August 1, 2011 as an Operattons ,a~ ' She was transferred from
OffiQ\uager.
Operations Office Manager to an Implementation"~ within Edible Software as of November
~
2011. 3 In the Implementation Role, Barn~s expected to assist new customers with
purchased software, either on site or at the~ility. 4 She went on two business trips during her
employment; (1) a business trip to ,~ Georgia to attend a trade show on or about October
15, 2011 and (2) a business trip~ew Ol"leans, Louisiana to meet a prospective client on or
about November 14, 2011. 5 ~tt continued to work for Defendant Edible Software until in or
©!~
about February 2012, wh~he resigned from her employment. 6
~ .
b. Hill'~ployment History
``
#
1
In this Plea to the Jurisdiction, the Statement ofFacts is entirely the same as what has previously been presented to
the Court in the Motion ibr Summary Judgment. They are incorporated here as a matter of convenience. For the
purposes of this plea all facts are to be constmed most favorably against Defendants.
2
Barnett Dep., Ex. 1, at 24:5-15,
'BarnettDep.,Ex.1,at27:11-12.
4
BamettDep.,Ex.l,at25:12-l8.
5
Barnett Dep., Ex. I, at 29:17-25; 30:22-31:7; 75-76.
6
BarnettDep., Ex. 1, at 11:25-12:5.
3
Plaintiff Keri Hill ("Hill") began her employment with Defendant Edible Software on
December 12, 2011 as a Sales and Marketing Manager. 7 As part of her job duties, Hill was
required to meet and help secure prospective clients. 8 To that end, she went on two business
trips during her employment; (I) a business trip to New York to meet prospective client Anchor
Seafood on or about January 8, 2012 and (2) a business trip to Chicago m~iJ!Ma, Illinois to
meet prospective client Pasqua! on or about January 22, 2012. 9 Hill wa~ed by Defendant
~
Morris to attend the New York business trip. 10
She initiated a requ~ttend the Chicago trip
and told Defendant Morris that if he thought it would be a goo~ing expedence for her she
would like to attend. 11 On April 11, 2012, Hill was put ~aid leave of absence and was
subsequently notified of her termination approximatel``~eeks later."
c. Stewart's Employment History o"'@;j
~
Plaintiff Stacy Stewart ("Stewmt") `` her employment with Defendant Edible
Software in or about February 2011. 13~ewart was employed to implement software at
customet· sites. From March 18, 20 ``tgh March 22, 20 II, she attended the Boston Seafood
Show. Upon her return, Defen<@~orris and Beth Jackson, a management level consultant,
met with Stewart to discuss,~erfotmance at the show. Defendant Morris commented that
g"Id.
43
Id.
44
Barnett Dep., Ex. L, 128:10-20.
45
BamettDep., Ex. 1, 130:12-132:10.
46 !d.
47
Id.
"Barnett FBI Interview, Feb, 6, 2012, Ex. 4, at p.42.
49
See Plaintiff's Second Amended Petition, at~ I I.
8
that such incidents of unwanted sexual contact actually took place and/or that she was actually
drugged by Defendant MmTis. 50
i. New York business trip allegations
Hill departed fi·om Houston with Defendant Morris to LaGuardia Airpott in
New York on January 8, 2012. Defendant Morris and Hill visited the Presid~ub VIP area
before take-off. She consumed two (2) "Bloody Mary" alcoholic bevera~ithin a fmty-five
~
(45) minute period in the President's Club at the airpoti. 51 De``t Morris and Hill sat
c@@
together in first class on the airplane. She ordered and consu~o (2) cranbeny and vodkas
approximately forty-five (45) minutes after take-off. 52 c,jjf
Upon arrival in New York, Defendant MorrQ~ill checked into the Man·iot hotel
located only 2-3 miles from the airport." Hill and~ndant Morris met in the concierge lounge
of the hotel after briefly visiting their rooms, ~dant Morris fixed himself and Hill cranberry
~hen it was time to leave the concierge lounge to
and vodka drinks in the concierge lounge.
go to dinner, Defendant Mon·is tra``d his drink and Hill's drink into two go cups. Hill 55
took her drink to the car and too~·oximately two (2) sips from it. 55
Hill alleges that Def(!ffif~t MmTis insetted drugs in her to-go cup drink at the concierge
©~
lounge in the hotel. 57 9CeJlnever saw Defendant Morris insert anything into her drink. At the
point Defendant ~Ps
~ gave Hill the to-go cup drink, she had consumed four (4) alcoholic
beverages and~ns of a 5th alcoholic drink. Hill testi-fied that she very rarely drank mixed
;;:;~
50
Hill Dep., Ex. 2, at 126:14-127:6; 130:14-131:4; see also Hill FBIInterview, Feb. 24,2012, Ex. 5, alp. 16.
51
Hill Dep., Ex. 2, at 53:16-54:4.
52
Hill Dep., Ex. 2, at 57:16-58:9.
53
Hill Dep., Ex. 2, at 61:15-23.
54
Hill Dep., Ex. 2, at 71:16-75:10; see also Hill FBI Interview, Feb. 24, 2012, Ex. 5, at p. 21.
55
Hill Dep., Ex. 2, at 76:2-77:8.
56
Id
57
Hill Dep., Ex. 2, at 130:14-131:4.
9
drinks or hard alcohol; she never consumed five (5) alcoholic dl'inks in a 7-8 hour period before
in her life and that she never drank on an airplane before."
After consuming four (4) mixed drinks containing hard alcohol and a portion of a fifth,
Hill does not remember anything else that happened during the night except flash memories that
only amount to pure speculation. 59 She confirmed that she had no memory o~g Manhattan
on January 8, 2012 as she had planned to do earlier that day with D``nt Morris. She 60
testified that she did remember getting into an elevator, into a car a``car moving as well as
some memory of trying to get out of a car, but she did not kno~ther she was in Manhattan
or at the hotel." Hill confirmed that she could not rememb~efendant Morris was with her
at this point." Her next memory is trying to find her ~d noticing that she had urinated on
herself." She does recall that Defendant Morris ~ed her that he had been looking for her,
called her telephone multiple times" and wa~erned because he could not find her. 65 Hill
~dant Morris, "I'm fine, you're blowing this out of
stated that she could recall responding to
prop01iion." Hill asked Defenda``~s to leave her room and he told her to sit down, they
would watch TV for a moment~ she would feel better. Hill asked him to leave again and
Defendant Morris left her ro``
rF~
The next morning,J"Iill called her husband and her husband infotmed her that she had
,oJJ.}
called him the ni``l!;"f'vre and told him that Defendant Morris wanted to watch TV and she was
~
~OJ
"Hill
59
Dep.~2, at 98:9-100:14; 202:13-24.
Hill Dep., Ex. 2, at 78:2-7; see also Hill FBI Interview, Feb. 24,2012, Ex. 5, at p. 23-25.
"ld.
"Hill Dep., Ex. 2, at 78:2-7; 79:7-25.
"Hill Dep., Ex. 2, at 81:24·82:6.
"Hill Dep., Ex. 2, at 81 :2-18; 194:24-196:11.
"'Hill Dep., Ex. 2, at 164:2-165:20,
"Hill Dep., Ex. 2, at 82:15-83:3.
66
Hill Dep., Ex. 2, at 82:15-83:3.
10
uncomfortable. 67 She testified that she did not feel that she had been physically violated by
Defendant Morris at this point. 68 She apologized to her husband and told him she was
embarrassed about her behavior. 69 Hill did not allege that her conduct was due to anything that
Defendant Morris did at this time. She also apologized to Defendant Morris that morning at
breakfast." Defendant Morris informed Hill that they went downtown Man~she was fine
at first and then Defendant Morris had to hold her by the mm to assist he1~Ylking. 71
The next evening, on January 9, 2012, after meeting with the~ctive client, Hill went
to Manhattan with Defendant Morris. Defendant Morris had o~o take her again since she
did not remember going to Manhattan the night before. 7\~ and Defendant Morris visited
Rockefeller Center and NY Times Square. 73 The foll~ay, Hill and Defendant Morris met
with another client. After the client meeting, Hi``fendant Morris and another employee of
Defendant Solid Software Solutions, Beth Ja`` had dinner at the hotel restaurant. Hill had
t~er and one beer at dinner. Hill did not speak
one drink in the conciet·ge lounge prior 74
with anyone about the incidents in``ork, did not accuse Defendant Morris of drugging her
and did not repmt any such spec~n to anyone even when she arrived back at work.
ii. Chicago/Peo©~inois business trip allegations
Hill initiated her(ttllndance on the Chicago/Peoria, illinois trip with Defendant Morris.
~
Despite her claim ~efendant Morris allegedly dmgged her and subjected her to unwelcome
sexual contact# last business trip in New York, she told Defendant Morris that if he thought
``
"Hill Dep., Ex. 2, at 85:9-86:13,
"Hill Dep., Ex. 2, at 86:14-87:1.
"Hill Dep., Ex. 2, at 94:3-95:14.
10
Hill Dep., Ex. 2, at 89:2-90:22.
71
Hill Dep., Ex. 2, at 89:2-90:22.
72
Hill Dep., Ex. 2, at 97:2-9.
73
Hill Dep., Ex. 2, at100-102:3-6.
74
Hlll Dep., Ex. 2, at I 03-107.
ll
the Chicago trip would be a good learning experience for her she wanted to go. 75 Less than two
weeks after the alleged incidents on the New York business trip, Hill left for another business
trip in Chicago, alone with Defendant Morris.
Hill met Defendant Mon·is at the airport. Prior to the plane's departure, she consumed a
beer. 76 On the airplane, she ordered a Bacardi and Diet coke. 77 She then ~&/Jffthe restroom
on the plane. Hill and Defendant were sitting in a three (3) person rot'Jlh another woman
occupying a seat within the row. Hill alleges that when she went~ restroom, Defendant
o@;i;
Morris put drugs into her drink. 78 While she was in the restt·oo~'l'endant Morris and Paulina
Sorig, the other woman seated in the row, remained in their s~79
Hill does not remember exiting the plane or t~t upon arrival. She has a series of
"flash" memories between the time that she co~1ed her third alcoholic beverage on the
airplane to approximately I 0:00 pm the ni~ January 22, 2012. Hill testified that she
remembered (I) Defendant Morris holdi~r hands; (2) Defendant Morris' face pressed up
against hers; (3) Defendant Morris``her hand and rubbing in her vaginal area and up and
fr~f a woman with Defendant Morris and the woman giving
down her leg; (4) standing in
them a recommendation for ~a\ll'ant to eat dinner; (5) drinks in the refi•igerator in her hotel
!Q~
room and (6) Defendant~rris being in her hotel room and asking hinl to leave." She testified
~
that she also reme``Qi!d seeing a condom packet but then confirmed that she did not know if
~vv
what she saw ~ct was a condom packet. 81 Hill's flashes of memory include her being in
``
75
Hill Dep., Ex. 2, at 109:20-110:18.
,. Hill Fl31 Interview, Feb. 24,2012, Ex. 5, at p. 48.
77
Hi!! Dep., Ex. 2, at 206:2-12.
78
Hill Dep., Ex. 2, at 130:14-19.
"HillDep., Ex. 2, at Zll:?A-212:19; 214-216.
"Hill FBI Interview, Feb. 24, 2012, Ex. 5, at p. 48.
81
Hill Dep., Ex. 2, at 134:14-16.
12
public places such as the airport, which has a high level of security and the hotel. She does not
recall any persons commenting on her behavior or questioning her mental and/or physical state.
Hill confirmed that she did not see Defendant Mords put anything in her drinks."' She
admitted that she was just speculating as to what happened in New York and in Chicago."' She
had absolutely no physical proof that Defendant Morris did anything to her p``· in any way
tampered with her drinks." The day after the alleged incidents of unidh1e sexual contact
described above, Hill went with Defendant Morris to see the client ``~a, Illinois. She did not
confront Defendant Morris about any suspicions or concems. Q~
Hill spoke with het· husband after she visited the cl~and was informed that she had
called him the night before. Her husband stated sQ4if slurred speech, told him she had
consumed two (2) drinks and said that she was flQ~ Her husband also informed her that he
~
then stated, "if you've only had two drinks so~'s drugged you." Up to this point, Hill had
not alleged or even insinuated she had bee~gged by Defendant Morris at any time.
c. Plaintiff Stewart's Aile``of Unwanted Sexual Contact by Defendant Morris
i. Boston,Massaclu~Business Trip Allegations
On March 18, 2011, ~art was informed by Defendant Morris that she was invited to
©!~
attend the Boston Sea~ Show. 87 She welcomed the opportunity to attend the show."
~
Defendant Morris ~ed Stewatt that the reason for her attendance would be to observe and
``
#
"Hill Dep., Ex. 2, at 192:4-17.
"HillDep., Ex. 2, at 126:4-127:6; 130:14-131:4.
84
Hill Dep., Ex. 2, at 217:10-219:22.
85
Hill Dep., Ex. 2, atl45:6-146:3.
"/d.
87
Stewart Dep., Ex. 3, at 56:24-58:5.
"Stewart Dep., Ex. 3, at 57:23-25.
13
learn the product, 89 Defendant Edible Software provided hotel arrangements at the Marriott
hotel. 90
Stewart departed on March 20, 20 II on a I p.m. flight headed to Boston, Massachusetts
where she would attend the Boston Seafood Show. 91 At the airpott, prior to boarding the flight,
she ordered and drank a Tanqueray & Tonic dtink!' On the plane, she ord~d consumed
two glasses of wine. 93 When Stewart arrived at the hotel, she was met ~Yfendant Morris in
Q~
the lobby area to check-in, After the check-in procedure she brie``nt to her room to get
0~
settled in. Then she met Defendant Morris along with Beth ~on and her mother in the
concierge lounge. Stewati had another Tanqueray and To``·ink she fixed herself upon her
arrival at the concierge lounge." She had now consu~ me~m· (4) alcoholic beverages from the
time she arrived at the airpoti to the time she arrh~t the Man·iot in Boston. Stewart had her
fifth drink of the day, another Tanqueray a~nic, when Defendant Morris arrived at the
concierge lounge and made it for her. 95 ~
After leaving the concierge~1/!Jt. Stewatt, Ms. Jackson and her mother, Steve Nysis,
another Edible employee, and ~dant Morris went to dinner at Legal Seafood in Copley
Mall." Stewart consumed`` of wine at dinner, her sixth drink for the day, 97
After dinner,
Stewart spent about te\,
cWminutes shopping for a shirt but was unable to find what she wanted
Q~
``
"Stewart ~·``q· at 58:4-58:12; 85:14-86:9.
90
Stewart~x. 3, at 61:14-23.
91
StewartDep., Ex. 3, at59:10-23.
"Stewa1i Dep., Ex. 3, at62:14-24.
" Stewart Dep., Ex, 3, at 62:8-13 (Note: In her deposition testimony Stewart first testifies that she only had one
glass of wine but when asked whether she had told FBI Agent Gregory that she had two glasses, she confirmed that
she had in fact told agent Gregory that.); see also Stewart FBI Interview, Mar. 7, 2012, Ex.6, p. 21.
"Stewart Dep., Ex. 3, at 64:7:65:1; see also Stewart FBI Interview, Mar. 7, 2012, Ex.6, p. 25.
"Stewart Dep., Ex. 3, a165:2-23.
96
Stewart FBIInterview, Mar. 7, 2012, Ex.6, p.26-27.
"Stewart Dep., Ex. 3, at 66:16-67:19.
14
before the mall closed at 9:00 p.m.•• Stewati has a clear recollection of walking back towards
her hotel that night, which was connected to the Copley Mall. 99 She also recalls speaking with
her husband that night on the phone in her hotel room around 11 p.m. 100 At this time, Stewart
was on two medications, one of which her doctor had informed her not to "drink a lot" while
taking the medication.'" ``
Defendant~s a text informing
The following morning, March 21,2011, Stewart sent
him that she was going to the mall to get a shirt and then she \~come to the Seafood
..
``for a white shili. 103 When
Show."' She left the hotel before 9:00 a.m. to go shopping at t~Vu
she arrived, Stewart realized the retail stores in the mal! did``en until I 0 a.m. so she decided
to get some food and something to drink while she ``104 She testified that she was not
feeling well and she felt like she had a hangover.'E``evertheless, Stewati attended the Seafood
~
Show and stayed for its duration. 106 ~
After the show ended, Stewmt me.endant Morris, a friend of Defendant Morris and
Beth Jackson in the concierge lo``f the hotel. Despite feeling hung over earlier that
morning, she had two Tanquera~ Tonic drinks while she was in the concierge lounge; the
first one Stewart prepared fo~self and the second one allegedly was prepared by Defendant
g~
Morris. 107
Stewati tes~'Jlthat she did not see Defendant Morris prepare her drink but he had
0~
~({;j
g
"Stewart ., x. 3, at 69:10-69:16.
99
/d.; Stewa ep., Ex. 3, at71:23-70:1.
100
Stewart Dep., Ex. 3, at 70:13-17.
101
Stewart Dep., Ex. 3, at 165:21-166:5.
101
Stewart Dcp., Ex. 3,at 71:24-72:7.
"'Stewart Dep., Ex. 3, at 41:5-19.
104 Id.
105
Stewart Dep., Ex. 3, at 37:4-15.
105
StewartDep., Ex. 3, at 85:3-86:9.
101
Stewart Dep., Ex. 3, at 88:3-90:3.
15
asked if anyone wanted another drink and then came back with the drinks requested, 108 After she
had consnrned the two drinks she went to dinner at California Pizza Kitchen in the Copley Mall
and walked back to the hotel with Defendant Morris, Beth and her mother and Steve Nysis.
Stewart has a clear recollection of her time in the concierge lounge, consuming the two (2)
Tanquemy and Tonics at the concierge lounge, attending dinner, and walki~ through the
mall to the Marriott hotel after dinner. 109 ~!(j
Stewart and Defendant Morris stayed in the lounge/bar a`` the hotel after they
0~
returned from dinner. Defendant Morris and Stewart had a ``rsation, which included a
discussion about Stewart's involvement in the company~ She alleges that during this
'~
conversation, Defendant Morris massaged her shoulde~he hotel lounge area. 111 Stewart also
alleges that Defendant Morris asked her if he coul~e to her room and finish the massage. 112
When she said no, he did not persist and she ``o her room locked the door and did not have
fen~ Morris the rest of the night."' Stewmt called her
any contact or communication with De
husband and informed him that De`` Morris had massaged her shoulders and asked if he
could come to her room and fini~e massage."' She testified that her husband was mad but
she could not recall what he <'~15 Her husband did not advise her to repmt Defendant Morris'
o~
alleged behavior."' ~!(j
The followi#orning, Stewmt sent Defendant Morris a text message to find out what
time they woul``eeting to board the shuttle to the second day of the Boston Seafood Show.
108 !d.
``
"'Stewart Dep., Ex. 3, at 90:5·91:19.
110
StewartDep., Ex. 3, at 92:12-18.
m Stewart Dep., Ex. 3, at 47:11-49:20; 92:12-93:9; see also Stewart FBI Interview, Mar. 7, 2012, Ex.6, p. 39-40.
u' StewartDep., Ex. 3, at 93:10-94:25; see also Stewart FBI Interview, Mar. 7, 2012, Ex.6, p. 42.
"'Stewart Dep., Ex. 3, at 94:4-14.
114
Stewart Dep., Ex. 3, at 95:10-97:7.
mId.
116
StewattDep., Ex. 3, at95:10-97:7.
16
He informed her that they would meet at the concierge at 8:35am for breakfast and then get to
show by 9am. 117 Stewatt testified that she felt terrible that moming and it was her belief this
"te11·ible" feeling was becanse Defendant Morris had contaminated her drink the night before. 118
Stewatt attended the second day of the show but left a little early so she would make her flight
a* eli
back to Houston. 119
III. Reporting of Incidents of Alleged Assault
~
a. Barnett's Failure to Repm·t Alleged Assault ~
Barnett never repmted any of the incidents that she a~ occurred during the New
Orleans business trip to any representative at Edible Softwat~n November 10, 2012,just four
(4) days before her trip to New Orleans, Barnett was~ with Defendant Edible Software's
sexual harassment policy.'" After she returned~ the New Orleans business trip, Bamett
attended a Lunch and Learn on the compan~ual harassment policy. 121 Barnett was well
a~epo1ting procedures however she never repmted
aware of the sexual harassment policy
Defendant Morris' alleged actions l~he New Orleans trip. It was not until February 2012
that she repotted the incidents to ``deral Bureau oflnvestigation ("FBI")."'
b. Hill's Faihtrll(~eport Alleged Assault
OJ"
Hill never report~e alleged incidents in New York to any representatives at Defendant
~
Edible Software. S so never reported the incidents in Chicago/Peoria to any representative at
``
Edible Soflwa1~t her husband's recommendation, Hill spoke with a narcotics agent when she
``
117
Stewart Dep., Ex. 3, at 100:13-21.
118
Stewart Dep., Ex. 3, at 100:22-102:2.
119
Stewart Dep., Ex. 3, at 117:19-118:12.
120
Hill Dep., Ex. 2, at 67:2-69.
121
Hill Dep., Ex. 2, at 79:9-14.
122
Barnett FB!lnterview, Feb. 27, 2012, Ex. 4.
17
returned from the Chicago trip."' The narcotics agent, a friend of Hill's husband, then referred
her to FBI Special Agent Glen Gregory. Hill met with Gregory twice and produced a written
statement. The FBI planned with Hill to circumvent the next planned business trip and take
Defendant Morris into custody. The FBI met Hill and Defendant Morris at the airpm1 and
apprehended Defendant Morris. Even after the FBI apprehended Defendant#- Hill lied to
Trevor Morris of Defendant Edible Software as to her knowledge of wht~ndant Morris was
apprehended and that she had reported his alleged conduct to the FB~(Jj
After Hill's employment with Defendant Edible Soft\``as terminated in or about
April 2011, she filed a claim with the Equal Employmen~portunity Commission."' She
received a Notice of Dismissal and Rights from the Q~ated November 19, 2012 in which
the EEOC was unable to find any violation. 125 o @?
§dl
c. Stewart's Failure to Report~ Assault
Stewart took no action regarding ~llegation against Defendant Monis or Defendant
Edible Software for nine (9) mont``March 2011 ~January 2012. 127
However, on the day
her employment was terminated,``;ked Defendant Mon·is if she was being fired because she
turned down "his offer to COl~ [her] room and finish the massage."" She did not make any
©~
complaints internally to~ Defendant Edible Software's HR Depatiment or file a charge with
~
the EEOC or Tl``n January 2012, agent FBI Special Agent Gregory contacted Stewart and
spoke to her f``roximately thirty (30) minutes about her knowledge and/or experience with
Defendan``is.
"'Hill Dep., Ex. 2, atl47:16·151:9.
'"Hill Dep., Ex. 2, at 153·154:20; 224:11-227.
125
Hill Dep., Ex. 2, at 155:18·156:14.
120
Hill Dep., Ex. 2, at 157:24-159:14.
127
Stewart Dep., Ex. 3, at 30:3-10.
128
Stewart Dep., Ex. 3, at 131:25-132:19.
1
" Stewart Dep., Ex. 3, at 131:10-132:4.
18
Specifically, FBI Special Agent Gregory asked Stewmt if she recalled any loss of
memory or waking up with a hangover while on a business trip with Defendant Mon·is in Boston
in March 2011. 130 She responded that she had not. 131 During that conversation Stewart informed
agent Gregory that the Monday night of the Boston Seafood show business trip, she went to the
bar with Defendant Morris and had a drink while she sat in the lounge ~Stewart also
informed FBI Special Agent Gregory that when Defendant Morris mass~her shoulders and
when they got in the elevator at the hotel, he asked if he could com``er room and finish the
massage."' At the end of that conversation FBI Special Agen~ry provided his telephone
number and told Stewart if she could recall anything else to~ct him. 133
Stewart then called her husband and informed~ the conversation she had with FBI
agent Gregory. Her husband told her that she had~Jled him when she was in Boston and told
him she was at the mall looking for some
~"'
Co~a and something to eat and drink because she
conversatio~ith her husband, Stewmt called Gregory back and
did not feel well. 134 After the
told him the information her husb``d allegedly reminded her of; that she had called him
while on the Boston business tri``arch 2011 and told him she was hung over and looking for
something to eat and dl'ink b~e she didn't feel well."'
g~
On March 7, 2i!Jjj Stewat't gave a recorded statement to the FBI. 136 Also, Stewart
~
contacted a lawyer~arch 2012. However, Stewart did not retain him because he declined to
``
accept her cas~
``
130
Stewart Dep., Ex. 3, at 32:4-35:3.
"'Id.
"'Stewart Dep., Ex. 3, at 46:1-l 1; see also Stewart FBl Interview, Mar. 7, 2012, Ex.6.
133
Stewart Dep., Ex. 3, at 34:11- l 4.
134
Stewmt Dep., Ex. 3, at 37:4-15.
135
Stewart Dep., Ex. 3, at 37:4-40:3.
'"Stewart Dep., 3, at 54:7-55:19.
"'Stewart Dep., Ex. 3, at 28:21-30: II.
19
ARGUMENT AND AUTHORITY
I. STANDARD OF REVIEW
A plea to the jurisdiction may be used to challenge the presence of subject-matter
jurisdiction. This dilatory plea is used to defeat the alleged claims without regard to whether they
have merit. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000)``urpose of a
~Jbut to establish a
dilatory plea is not to force [a] plaintiffi] to preview [its] case on the
reason why the merits of the plaintiff['s] claims should never be reac~Jd. In this Plea to the
Comt's Jurisdiction Defendants will conclusively show that ~ ~raintiffs' circumvention of
jurisdictional prerequisites to disguise standard employment~·hnination disputes as common
·
Iaw to1ts depnves th'rs comt of'Jlll'IS
· d'!chon c,!aj~
· to hear the ~ .
a. Applicability of the Plea to the Co~"' Jurisdiction at Bar
Defendant's argument throughout rem~at because the common law claims brought
inte~ned with claims that are required to be brought
by all three plaintiffs are inextricably
under the TCHRA, which requires ``1\on of administrative remedies, the claims asserted, in
a``empted.
the fashion that they have been,
When a statute, such `` TCHRA requires the exhaustion of administrative remedies
g~
before a plaintiff may fil~it, the plaintiff bears the burden to show he has met the prerequisite
~
to suit." Dworscha'f:l1l·ansocean Offshore Deepwater Drilling, Inc., 352 S.W.3d 191, 200
(Tex. App.-Ho# [14th Dist.] 2011, no pet.) (citing Permian Basin Ctnty. Ch·s. for Menta/
Health & ~Retardation v. Johns, 951 S.W.2d 497, 502 (Tex. App.-El Paso 1997, no writ);
Rodriguez v. Am. Gen. Fire & Cas. Co., 788 S.W.2d 583, 585 (TexApp.-EI Paso 1990, writ
denied)). It's undisputed in this case that the Plaintiffs have not exhausted the jurisdictional
prerequisite required by the TCHRA.
20
Once the failure to exhaust issue is resolved, it is incumbent upon the trial court being
asked to resolve a plea to its jurisdiction review the evidence to determine if a fact issue exists
with regard to jurisdiction, Miranda, 133 S.W.3d at 227 (citing Land v. Dollar, 330 U.S. 731,
735 & n. 4, 67 S. Ct. 1009, 91 L. Ed. 1209 (1947), overruled by implication on other grounds by
Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. ``~ L.Ed. 1628
f~Q is the case here, a
(I 949). If the pleadings or evidence affirmatively negate a jurisdictional
court may grant a plea to the jurisdiction without allowing the plaint~mend her pleadings."
City of Waco v. Lopez, 259 S.W.3d 147, 150 (Tex. 2008). qor?@
II. ANALOGOUS FACTS POST WAFFLE HOl',_~SUPPORT DEFENDANTS'
JURISDICTIONAL CHALLENGE ~
W'i
si~ to the one here. There was no claim
In Pruill, the jurisdictional challenge was
·~
filed with the Texas Workforce Commission p~ bringing suit. Prui/1, 366 S.W.3d at 743.
Though Pruitt was not a case grounded in``Jiions of s~xually based assaults"' in the course
and scope of employment, the Fire Chie``tiff was claiming racial discrimination.
The TIICRA is essentially '~"~borate process developed by the legislature to resolve
ITa
employment discrimination c`` Pnlill, 366 S.W.3d at 745. A plaintiff must comply with
mandatory and jurisdictiQ&inistrative prerequisites contained within the TCHRA to sustain
an employment discrittltrultion cause of action. Bartosh v. Sam Houston State Uitiv., 259 S.W.3d
·~fi/
317, 321 (Tex.``xarkana 2008, pet. denied).
As tl~uitt court observed, there are three reasons why exhaustion of Chapter 21's
.. ~
admmtstmllve remed"tes 1s
. a prereqms1te
. . to bnngmg
" " a ClVl
" "I actiOn
" 10r
" d"Iscnmmatwn
" " " cI a1ms.
"
Schroeder v. Tex. kon Works, Inc., 813 S.W.2d 483, 488 (Tex.l991), overruled in patton other
grounds by In reUnited Servs. Auto. Ass'n, 307 S.W.3d 299 (Tex. 2010).
'" Sexual harassment is a form of sexual discrimination. Merit or Sav. Bank, FSB v. Vinson 477 U.S. 57, 67, 106 S. Ct.
2399 (1986)
21
P. 1
I I l Communi Gat ion Result Report ( ~eb, 19. 2015 4:46PM) I I I
il
Date/Time: Feb. 19. 2015 4:28PM
f i Ie Page
No. Mode Destination pg (s) Result No\ Sen\
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JNT/
First, as the Pruitt couti observed, the various provisions of Chapter 21 stwngly indicate a
requirement of mandatory exhaustion of administrative remedies.
For example, the Section entitled "Civil Action by Complainant" reads,
"[w]ithin 60 days after the date a notice of the right to file a civil action is
received, the complainant may bring a civil action aga}_ljff the
respondent." TEX. LAB.CODE ANN. § 21.254 (emphasi~ded).
Moreover, "[a} civil action may not be brought under this suh__.ter later
than the second anniversary of the date the complaint rela\ir`` the action
is filed," TEX. LAB.CODE ANN. § 21.256 (West, WU) (emphasis
added). Additionally, a judicial proceeding under Cl~· 21 "is by trial
de novo." TEX. LAB.CODE ANN. § 21.262 ~ 2006) (emphasis
added). Pndtt, 366 S.W.3d at 745. ~v
0~
Next, although the language of Chapter 21,~es that a person "may" file
an administrative complaint, the legisl``as designed to "encourage [ ]
compliance through voluntary res o~ili\', conference, conciliation and
0
persuasion-informal processes ~· than litigation." Schroeder, 813
S.W.2d at 486-87. Thus, the 1)x'f.Supreme Court "do[es] not believe the
Legislature's comprehensive ~edial scheme allows aggrieved employees
to proceed on dual tracksQbne statutory and one common-law, with
inconsistent proce~dures~l\?~ndards, elements, defenses, and remedies,"
since interpreting t tute to allow for simultaneous litigation would
frustrate its purp~ ajjle House, Inc. v. Williams, 3 I 3 S.W .3d 796, 799
(Tex.20IO); s``hroeder, 813 S.W.2d at 486-87.
Third, b~ the general purpose of Chapter 21 was to provide for the
exec uti~ of the policies of Title VII of the Civil Rights Act of I 964 and
its so ~uent amendments, and "the United States Supreme Com1 ha[ d)
0
...l»~-{tt clear that Title VII include[d]" the requirement to "first fil[ing] a
~· e with the EEOC" prior to bringing a civil action, the Texas statute
``hould also be interpreted in the same manner. Schroeder, 813 S.W.2d at
485-87 (citing Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94
S. Ct. 1011, 39 L. Ed. 2d 147 (1974); McDonnell Douglas Cmp. v. Green,
411 U.S. 792, 798, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973); Love v. Pullman
Co., 404 U.S. 522, 523, 92 S. Ct. 616, 30 L. Ed. 2d 679 (1972)); see TEX.
LAB.CODE ANN. § 21.001(1) (West 2006). Thus, "failure to file a
complaint and to pursue ... administrative remedies with the Commission
22
creates a jurisdictional bar to" discrimination claims. Schroeder, 813
S.W.2d at 488; Waffle House, 313 S.W.3d at 804-05.
Pruitt, 366 S.W.3d at 746, citing Schroeder, 813 S.W.2d at 487.
This precedent from the Texas Supreme Comt requires the exhaustion of administrative
remedies with the TWC prior to filing suit for intentionally aiding or abe``crimination.
Pruitt, 366 S.W.3d at 746. ~U
The Pruitt comt cited to Waffle House in setting forth ~ for the precise pre-
o©Ji
emption/exclusion remedy that the Defendants are asking the ~to invoke in this case. The
task of the court is resolving the jurisdictional issue in Efi!Jt was to determine whether the
gravamen of the plaintiffs claim was essentially on~ial discrimination and whether his
common law causes of action were based on the sll)~ourse of conduct giving rise to a statutory
~
discrimination claim. Because Chapter 2l~re-emptive when the actions forming the
complained of torts are entwined with thdomplained of discrimination, the test for the court
was to determine whether or not t~4~re additional facts that were unrelated to the statutory
discrimination claim that would ``ndently suppOlt a tort claim. Pruitt, 366 S.W.3d at 749,
citing Waffle House, 313 S."'~t 808.
6~"'
The Texas Suj~Court has held that a plaintiff cannot proceed on a common law track
for the alleged as~ff when such claims are t'OOted in facts inseparable from a claim of
harassment, re#d exclusively by the statutory provisions of the TCHRA. A statutory cause
of action~brogate a common-law claim if there is a "clear repugnance between the two
causes of action."'" If claims involving sexual harassment are pursued as common law torts,
139
Waffle House v. Williams, 313 S.W.3d at 802.
23
"the statutory procedut·es and limitations applicable to such claims would be rendered
superfluous."'"
Plaintiffs base their common law claims on Defendant Morris' alleged actions of
unwanted sexual contact during business trips where both Defendant Motl'is and Plaintiffs were
acting in their capacity as employees of Defendant Edible Software. Sue`` hamssment
allegations occun-ing within the employment relationship are exclusiv~ govemed by the
~
TCHRA. This CoUt1 has no jmisdiction because the TCHRA i~exclusive remedy for
workplace sexual harassment, and the plaintiffs have not satisfi~urisdictional prerequisites
to bringing suit.
141
"/!!J'
a, Plaintiffs' claim that Defendant Edible So``
liable for the alleged unwanted
sexual touching by Defendant Morris ~ ~tted to the TCHRA scheme for such
employer-employee relations. ~
0
Plaintiffs admit in their petition th~Jlncidcnts of assault complained of all occurred
when, "Defendant Morris was employe~iMJ. managerial capacity by Defendant Solid Software
Solutions, L.L.C.," and that "~ant Morris was acting within the scope of his
employment."'" An employe~Qhility for unwanted sexual touching by another employee is
limited to the tailored ~ scheme that specifically covers employer liability for sexual
harassment. 14' Even t1Jl:wgh unwanted sexual touching is considered simple assault undet· Texas
o{,({Y'
law due to its ~sive and provocative" nature, such claims arising in the workplace are
exclusively ~ned by statutory regime. 144 A reading of the Petition in this case clearly reveals
~
140
Id. at 802.
141
/d. at 801 (The court agreed with Defendant's assertion that the common law claims asserted by Plahtliffshould
fail as a matter of Jaw because the TCHRA is the exclusive remedy for workplace sexual harassment).
14 ' PlaintiffS' Second Amended Petition, at ``18-19.
143
Wqff/e House v. Williams, 313 S.W.3d at 803.
t4·1 Jd.
24
that the alleged conduct occurred while Defendant Monis was acting in his capacity as an
employee of Defendant Solid Software Solutions.'"
Additionally, Plaintiffs attended the business trips as part of a function of their
employment with Defendant Solid Software Solutions. Hill was required to meet and help
secure prospective clients as patt of her job duties. 14' Therefore Hills' attend``the business
trip to New York to meet prospective client Anchor Seafood on or about ~\J'Y 8, 2012 and the
business trip to Chicago and Peoria, Illinois to meet prospective ~¥Pasqua! on or about
January 22, 2012 was within the scope of her employment. "~the Implementation Role,
Bamett was expected to assist new customers with purchase~vare, either on site or at their
facility, therefore she attended business trip/shows ``~vith clients as a part of her job.'"'
Stewart described the reason for her attending the ~;ljton Seafood show business trip, the event
in which she alleges the incidents of assault o~d, as related to the scope of her employment.
Stewart testified that when she was invited ~he trip, she was told by Defendant Morris that her
duties and responsibilities while on`` was to "observe and learn the product," a function of
he~· job. 149
~
All Plaintiffs in the cl,!ll~ttended the business trips as part of their work and as a patt of
©~
their employment with ~dant Edible Sofuvare. The allegations of unwanted sexual contact
~
allegedly took plac~le on business trips within the employer-employee relationship. Thus,
Plaintiffs claim~rding employer liability for alleged sexual harassment must be governed by
theTCI-``
145
See e.g., Mosley v. Wai-Mal'l Stores Texas LLC, 2011 WL 2893086 (N.D. Tex. June 20, 2011).
146
Hill Dep., Ex. 2, at 45:24-45:1.
147
See Waffle House v. Williams, 313 S.W.3d at 803; See also HillDep., Ex. 2, at 169:21-23;169:24-170:1.
148
BamettDep.,Ex.1,at25:12-18.
149
Stewart Dep., Ex, 3, at 57:23-58:12; 86:2-9.
25
b. Plaintiffs' claims of assault stem from the same facts that support a sex
discrimination (sexual harassment) claim exclusively governed by the TCHRA.
Plaintiffs' common law claims of assault are preempted because the TCHRA provides the
exclusive remedy for workplace sexual harassment. The Texas Supreme Comi has recognized
that a plaintiff is bm1'ed from recovery based on a common law tort where a st``·y remedy is
available for the same conduct that underlies the tort claim. 150 The TC``onfers both the
right to be fi·ee from sexual hamssment and the remedy to combat it. 151 1\\h.en the gravamen of a
·~'
plaintiffs case is TCHRA - covered harassment, the Act fot``s common-law theories
predicated on the same underlying sexual harassment facts." 152~Q~
·\f@
w-
The TCHRA provides a specific statutory scheme.~ remedy for sexual harassment."'
This includes discriminatory conduct in the form of ~nted sexual touching creating a hostile
·~ environment claim as a result of sexual
work environment.'" The elements of a hosti~"§:·k
me``Jl of a protected class, an allegation of being
harassment include plaintiff being a
subjected to unwanted sexual advanc``~assment based on sex and harassment affecting a
term or condition of employrnent. 1 ~ims with facts that give rise to those elements fall under
the TCHRA which provides a~Yuue for a plaintifl' to assert a claim of liability on an employer
when subjected to sexuaQ~sive verbal and physical contacts in the workplace,
Plaintiff Bam&alleged that Defendant Morris, "attempted to sexually assault" and
•;:£(/Jj'
"attempted to ``ly remove her [Barnett's] clothing."'" Plaintiff Hill stated that she "awoke
150
~
Wqf}le H01 e v. Williams, 313 S.W.3d 796, 802 {Tex. 2010).
150 Id
152
Wajjle House v. Williams, 313 S.W.3d 796, 813 {Tex. 2010)(citing Pl'uitt v. Int'l Assoc. of Fire Fighte1·s, eta!.,
366 S.W.3d 740, 747 (Tex. App. 2012)(citing Black's Law Dictionary 770 (9th ed. 2009)([T]he gravamen is "the
substantial point or essence of a claim, grievance, or comph1int.").
'"Tex. Lab. Code §21.051.
154
Hardy v, Fleming Food Co., Inc. 1996 WL 145463 (S.D. Tex. 1996),
"'Prigmore v. Houston Pizza Ventures, Inc., 189 F. Supp. 2d 635, 642 (S,D, Tex. 2002).
'"Plaintiffs Second Amended Petition, at~ 9.
26
with memories of Morris' face pressed against her and being sexually assaulted by Morris."'"
Plaintiff Stewatt alleged that Defendant Morris massaged her shoulders and propositioned to
finish the massage in her hotel room. Plaintiffs allege that these actions took place during
business trips where Defendant Morris was acting in his capacity and within the scope of his
duties as President and CEO of Defendant Solid Software."' According to~#· Defendant
Morris' alleged conduct was "offensive or provocative."'" Addition~ their deposition
testimony, the Plaintiffs allege the following incidents of unwanted s``ouching.
Plaintiff Hill's speculations of unwanted sexual touchin`` the Chicago business trip
include: o~
(~
• Defendant Morris holding her hands.'"' ~
~
• Defendant Morris' face pressed against!`` ofPlaintiffHill's face. 161
• Defendant MoiTis held Plaintiff Hil~Ynd and rubbed in her vaginal area and up and
g
down her leg.'" @
Plaintiff Barnett's speculations of ~ted sexual touching during the New Orleans business
trip include: "-~
0
• Defendant MorriU@Ji:'il Plaintiff Barnett's sweater off.'"
Plaintiff Stewart speci'lreally stated that she believes she was sexually harassed while working
o~@'~
for Defendant E~oftware in her deposition testimony as follows:
Q: ``o you know what the term sexual harassment means?
A~"'yes.
Q: Do you believe you were sexually harassed working at Edible Software?
157
Plaintiff's Second Amended Petition, at~ 12.
158
Plaintiff's Second Amended Petition, `` 8-9, 10-11.
"'D's First Amended Petition, at 1l1l15-17.
160
Hill Dep., Ex. 2, at 122:1-123;22.
161
Hill Dep., Ex. 2, at 123:11-20.
162
Hill Dep., Ex. 2, at 123:18-124:15.
163
See Plaintiffs Second Amended Petition; Barnett Dep., Ex. 1, at 109-116:12.
27
A: Yes.
Q: Okay. And your complaint against Edible Software in the civil suit is for sexual
harassment, correct?
A: Yes."'
Stewart also testified:
Q: ... When you contacted the lawyer named Bashinski, what was it~ you though
youhad? rj/jj
A; Sexual harassment. F'~
Q: Okay. So even as earlie1~as early as April of 2011 you kh\,w you had a sexual
harassment claim, correct? That's why you went to see .a &er?
A; fu.~ ~
Q: Okay. ln other words, you lmow, in your lawsui~lege that you were, as you
say, sexually harassed, right? Correct? ``
A: Yes .166 rpj';
.'}!!!
Stewart's assertions of unwanted sexual touching dm·``oston Seafood Show business trip
include: ~
§"@ 0 .
• Defendant Morris allegedly massaged ``uldet·s in the hotel lounge area on March
21,2011.'" ~(J
• Defendant Morris allegedly askaHouse, 313 S.W.3d at 813 ("As the complained of acts constitute actionable harassment under the
T<:IIRA they cannot moonlight as the basis of a negligence claim, a claim that presents far different standards,
procedures, elements, defenses and remedies.'')
71
Brammer v. Martinaire, Inc,, 838 S.W.2d 844, 847 (Tex. App.-Amarillo 1992, no writ),
172
See Brammer, 838 S.W.2d at 846.
I7J Tex. Rev. Civ. Stat. Ann. art. 5221k, § 7.01(a) (Vernon 1987).
114
Qwesl Mlcrowm•e, Inc. v. Bedard, 756 S.W.2d 426,434 (Tex. App.-Dallas 1988, no writ),
29
The aforementioned facts giving rise to Plaintiffs common-law assault causes of action
are inextricably intettwined with the facts giving rise to a sexual harassment complaint that
should have been resolved through TCHRA administrative procedures.
Plaintiff Hill filed a charge of discrimination with the EEOC however the EEOC issued a
Notice of Dismissal finding it was unable to conclude that the information ob,stablished a
violation of the statutes.'" To satisfy the jurisdictional prerequisite requ~nder the TCHRA,
Plaintiff Hill was required to file a complaint within either the Texa#kforce Commission or
o@j
the EEOC within 180 days of the alleged sexual harassment.'" ~use the Texas Labor Code
provides a statutory remedy for the alleged sexually harass~nduct, Plaintiffs common law
claims for assault is Jlreempted. 111
!VJ~
With regard to P1aintiffBarnett, the allege``al harassment occurred on November 14,
2011. Barnett never filed a charge of discri6ton with the EEOC or the Texas Workforce
Commission."' ~
The alleged sexual harass``~ Plaintiff Stewatt complains of occurred in March
2011. She never filed a charge o@rimination with the EEOC even though she was aware the
EEOC addressed harassmeni;<~s. She also never filed a charge of discrimination with the
©~
Texas Workforce Com~s)l)n. In fact, she initiated no legal action regarding the alleged sexual
~
harassment un~til
\``0 12, when she contacted a lawyer who declined to accept het• case. 119
If Plai ~are allowed to pursue their claims under the assetted "assault" cause of
!\0
action, th~uld be allowed to unjustly side-step the standards and procedures set by the
"'Hill Dep., Ex. 2,at 155:18-156:14.
'"Tex. Lab. Code §21.202; Texas Youth Commission v. Garza, No. 13-11-00091-CV, 2009 WL 1238582 (Tex.
ArP·- Corpus Christi 2009).
17
JVqj]le House, 313 S.W.3d at 802.
118
Barnett Dep., Ex. 1, 197:2-23.
'"Stewart Dep., Ex. 3, at28:21-30:11.
30
TCHRA for sexual harassment claims. In essence, Plaintiffs would be able to evade the,
"statutory requirements of exhaustion of administrative remedies and the purposes behind the
administrative phase of proceedings, the relatively short statute of limitations, the limits on
compensatory and punitive damages, the requirement that the plaintiff prove an abusive working
environment, and all other special tu!es and procedures governing th``ory sexual-
harassment claim ."" ~
U
Other courts have consistently held that claims such as the o``erted by the plaintiffs
in this case, when addressed by a statutory remedy, must yield t~emedy. If the gravamen of
a plaintiff's complaint is the type of wrong that the staMo~emedy was meant to cover, a
~
plaintiff cannot maintain an intentional infliction clail~less of whether he or she succeeds
on, or even makes, a statutory claim." Ho.ffinann-J.nf1mche Inc. v. Zeltwange1~ 144 S.W.3d 438,
~
448 (Tex. 2008) ~
In Taylor v. Seton Healthcare, 2012 W~80 (W.D. Tex. 2012) several employees brought
assault and offensive physical ~ottd~claims based on theol'ies of respondeat supel'ior,
~ .
ratification, and negligence agai~ former co-worker and against their employer for sexual
harassment and retaliation u~oth Title VII and the TCHRA. Similar to what the Plaintiffs
here are alleging, the ~«y plaintiffs claimed that they were sexually harassed by the co-
~
employee from the t~ey each began working for the employet·.
/~g. claims under Title VII and the TCHRA they alleged that the co-
``etting
In addition
employee'~uct constituted assault and offensive physical contact; that the employer ratified
the co-employee's tmtious acts; and that the employer was negligent in its employment of the
offending employee.
180
Waffle House, 313 S.W.3d at 807.
31
Predictably, the Taylor com1 observed that the Texas Supreme Comt's holding that the
TCHRA is the exclusive remedy for workplace sexual harassment and preempts common law
claims of assault against employers where the claims are predicated on the same conduct
underlying a TCHRA claim. Taylor, citing Wajjle House, Inc. v. Williams, 313 S.W.3d 796,803
(Tex.20 I 0) ("employer liability for unwanted sexual touching by a cowo``~1ple assault
under Texas law given its 'offensive or provocative' nature) is limited to~ TCHRA scheme
~
that specifically covers employer liability for sexual harassment"). ~rt;j
o.@oi
Both in Taylor, the case at Bar and Wajjle House, the Plaint``sault claims are predicated
on the same conduct that underlies their TCHRA claims. T~ ~\ti in Wajjle House held:
~
[s]exual harassment as a legal claim i``tory creation of legislators,
not a common-law creation of jud As [plaintiff's] to1t claim is
grounded on sexual harassment, it:,j!ii')J.l d impose liability for failing to
prevent a harm not cognizable ~er Texas common law. Further,
recognizing a common-law caus~ action in this context would negate
the Legislature's carefull~h\ll:!II~ced and detailed statutory regime
applicable to sexual-harass · claims, and effectively repeal the TCHRA
in sexual-harassment cas~G§,W ere physical contact occurs. Id. at 811-812.
rt:J;'@
"~ agreement by both pmties that the common law claims
Interestingly, in Taylor, there
against the employer were b~
u"under Wcrffle House. The distinguishlng fac!Ol' in Taylor was
that the plaintiffs argued~one of the plaintiffs failed to establish a sexual harassment claim
under the TCHRA, th~heir common law claims should be permitted to go forward, The Court
o~'
ruled that this p~ misinterpreted Waffle House.
The m``9rretation in Taylor is instructive as to the disposition of the Pleas to the
Jurisdiction presently before the Court. In Wajjle House, the Texas Supreme Court held that, if
conunon law and statutory claims based on the same underlying sexual-harassment facts are
allowed to coexist:
32
the panoply of special rules applicable to TCHRA claims could be
circumvented in any case where the alleged sexual harassment included
eveu the slightest physical contact. In any such case, the plaintiff could
claim that a physical contact, even if not actionable as statut01y sexual
harassment, and even if not normally actionable as a common-law battery,
was 'offensive or provocative' because it occurred in the context and
course of the coworker's sexual harassment of the plaintiff.
Any excuse that the Plaintiffs would advance as an explanation
requirements of a TCHRA claim based on the same gravamen would
*
f``
al~Qem
meeting the
to circumvent
o(b
its unique standards and procedures, including the statutory req~ents of exhaustion of
o§@
administmtive remedies, the relatively shol1 statute of limitati``he limits on compensatory
and punitive damages, and the requirement that the ``ff prove an abusive working
environment. Id. at 807. The Texas Supreme Comt ~ re~d this very result in Wajj/e House,
stating that "[w]here the gravamen of a plaintiffso&.;,. is TCHRA-covered harassment, the Act
~09'
forecloses common-law theories predicated o~ame underlying sexual-harassment facts." Id.
at 813. It is for this reason that the Com& ;aylor dismissed all of the common law claims
asserted by the employees, Taylor 1'f!!fj!n@!Healthcare, 2012 WL 13680 (W.O. Tex. 2012)
·~
In the context of upholding~\ttration agreement between the pa1ties a court aligned a sexual
assault claim with a sex``ssment claim, For pmposes of arbitration, a sexual assault claim
was "related to" plaitl.'tl:ll's employment when the assault was committed by a member of her
o~@''
company's uppe``agement, occul'!'ed at a work conference attended by plaintiff as part of her
responsibilit~r the company, and contributed to an alleged pattern of sexual harassment that
had occm~at work. Forbes v. A. G. Edwards & Sons, Inc., No. 08-CV-552, 2009 WL 424146,
at *8 (S.D.N.Y. Feb. 18, 2009).
In essence, any claim that is in any way intertwined with a statutory remedy will yield to the
statutmy cause of action. In Jones v. Halliburton Company, 791 F. Supp. 2d 567 (S.D. Tex. 2011)
33
affirmed on other grounds, 583 F.3d 228 (5th Cir. 2009), the comt, relying on Waffle House,
ruled that negligence and negligent undertaking claims including claims for the failure to train,
supervise, and maintain employees, the failure to provide a safe working environment, and the
failure to supervise the project and premises were all intertwined factually with the plaintiffs
underlying allegations of sexual harassment. Jones, citing Wajjle House, 313 S~ at 800.
(}
Lastly, Texas courts have gone to great pains to respect the specifi~ of a statute, even at
the expense of a claim potentially being brought under a different,``e. In City of Waco v.
0'/JP
Lopez, 259 S.W.3d 147, 149 (Tex.2008), the plaintiff filed st~nder the Whistleblower Act
alleging retaliatory discharge for rep01ting age and race ``nation. Although Lopez did not
invoke the TCRA in his pleadings, the court decide~?his claims fell within the TCHRA's
ambit. Id. The court wrote "the touchstone is ``ailment, but availability of the TCHRA
remedies." Id. at 151. Because Lopez's cl``uld have been raised under the TCHRA the
Texas Supreme Court found that the lowet.IQ\mts erred in not granting a plea to the jurisdiction ..
(@>
Jd.at156. ~
~QNCLUSION & PRAYER
WHEREFORE, P~S CONSIDERED, Defendants move that the Court grant
summary judgment 0i~ favor as to all such claims as to which the Court finds it proper to do
so, award Defe1i,~ts costs of court, and grant Defendants all such other and further relied, at
law or in ``as to which Defendants may show itself to be justly entitled.
34
Respectfully submitted,
Is/ Gregg M. Rosenberg
Gregg M. Rosenberg
Texas State Bar No. 17268750
*
ROSENBERG & SPROVACH
3518 Travis Street, Suite 200
Houston, Texas 77002
(713) 960-8300 G~
(713) 621-6670 (Facsim~
Attorney-in-Charge f``ndants
0~
OF COUNSEL: ~
ROSENBERG & SPROVACH ATTORNE~R DEFENDANTS
0~
CERTIFICATE OF SER~E
w;
I ce1tify that a l!ue and correct copy of the fo1~ng instrument has been fmwarded via
Texfile.gov Electronic Service on this the 21 ' 1 day qf~bruary 2014 to:
~
JeffreyN. Todd rF~
312 S. Friendswood Drive ``!
Friendswood, Texas 77546 g
(281) 992-8633 (Tel) riJ?o
(281) 648-8633 (Fax) o 0J"Y
Q~ ls/GreggM. Rosenberg
~ GREGG M. ROSENBERG
g~
~a
o;f1{j
~(iJ
~
~
35
2/27/2014 5:15:59 PM
Chris Daniel~ District Clerk Harris County
Envelope No. 591022
By: JONATHAN PATTON
Cause Number: 2012-65503
KERI HILL AND MICHELLE BARNETI ( IN THE DISTRICT COURT OF
(
VS. ( HARRIS COUNTY, TEXAS
(
HENRI MORRIS AND SOLID SOFTWARE ( :>Jk,
SOLUTIONS, INC. D/B/A EDIBLE SOFTWARE ( 55TH JUDICI~STRICT
PLAINTIFFS' RESPONSE TO DEFENDANTS' P~
TO THE COURT'S JURISDICTION ~
0~
Plaintiffs Keri Hill, Michelle Barnett and StaJ:>.~tewart, ("Plaintiffs",
0~
"Assault Victims"), herewith respectfully respond to the@dants' Plea to the Court's
Jurisdiction, heretofore filed herein by Defendant``·i Morris and Solid Software
Solutions, Inc. dfb/a Edible Software, ("Morri~ible", collectively "Defendants'');
and, in support provide the following inform~, argument and authority:
·. RELEVANT FACTS~ PROCEDURAL HISTORY
~
The Assault Victims filed t~ Third Amended Petition on August 23rd, 2013.
Following relevant discover~endants filed a Motion for Summary Judgment,
("MSJ"), which this Court werly denied. On February 21st, 2014, Defendants filed their
Plea to the Court's Ju~ion, ("Plea"), to which the Assault Victims herein respond. To
quote the inimit``ogi Berra, "It's like deja-vu all over again."• In their instant Plea,
exactly as the~ in their previously denied MSJ, Defendants obdurately cling to the
g
self-ser~.@stortion that this case involves nothing more than routine workplace
discrimination claims and not the appalling reality that the Assault Victims were
surreptitiously drugged, completely incapacitated and then sexually molested and
otherwise violated, The single grudging reference to that awful truth in Defendants' Plea
' http:/fwww.baseball-almanac.com/ quotes.
fiillill!l!i!!EX~H!i!'!II!!BI!i!TIIl!l!ili!!llltA 1
j \ \D /)
is renounced in the very next sentence: "Defendants are cognizant of the severity of the
allegations being asserted by each of the Plaintiffs in this suit. Regardless, even if the
allegations of assault of a sexual nature were true, the exclusive remedy lies within the
confines of the TCHRA." 2 As the Assault Victims will clearly show in their following
analysis, that is a denial of established fact and a manifestly inco``atement of
controlling Texas law; and, consequently, the Plea should be denie~rt:jach and all of its
particulars. ~rfj
II. ``
0"'~
ARGUMENT AND AUTHORI'F:r:f<:S
~
The Defendants' Plea sub judice is premised u~three fatal flaws: (1) this case is
~ission for Human Rights Act,
most certainly not controlled by the Texas
("TCHRA"), or the presumptive preemptio`` been seemingly accorded by the Texas
Supreme Court, in Waffle House v. WilY, 313 S.W.gd 796 (Tex. 2010)3, as discussed
in Pruitt v. Int'l Ass'n of FireFigh~rp>366 S.W.gd 740, 745-46 (Tex.App.- Texarkana
2012, no pet.), regarding all clai~ising out of workplace discrimination, consequently
the Assault Victims had ~Vstatutory procedural obligation to exhaust TCHRA
administrative remedie~re commencing the instant suit; (2) while the question of
whether this Court !lTCHRA?" 313 S.W.3d at 798-99. Plaintiffs herein bring no such claim. In the very next paragraph,
the Court admonishes: "the TCHRA does not foreclose an assault-based negligence claim arising
from independent facts unrelated to sexual harassment." Id., at 799· Here, Plaintiffs assert assault
claims against Morris and negligence claims against Edible for allowing a predator to victimize
them. Neither claim is in any way precluded by the TRCHA or its application in Waffle House.
2
jurisdiction, see Tex. Dep't ofParks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex.
2004), see also Comunidad Balboa, LLC v. Citzj ofNassau Bay, 402 S.W.3d 479, 482-83
(Tex.App.- Houston [14th Dist.] June 13, 2013, no pet.), a proper reading of Mi1•anda and
its progeny mandate that the Court keep this case; and, (3) even if the Court were to
somehow determine the Assault Victims' claims are presently defic`` supporting
jurisdiction, the Court should afford them the opportunity to amend Yr pleadings to do
~
so. The Assault Victims will treat each of these Plea defects sep~y.
I. Plaintiffs'ClaimsAreNotCovm·ed by the«!!RA or Waffle House:
Like Br'er Rabbit's clever ploy of constantly reCJJ!.g his adversaries, Br'er Bear
~
and Br'er Fox to "throw me into the Briar Patch,Q.e he would be quite comfortably
at home, the Defendants' expert discl'iminatj~aw counsel has throughout this case
insisted that the instant claims are m~kplace discrimination claims and not
egregious, humiliating sexual assaults. &proof of how fallacious such a characterization
is, the Court should note that base~ large part upon the facts asserted by the Assault
Victims in their Third Amen~ition on file herein, Morris was indicted by a federal
Houston Grand Jury, (se~ Superseding Indictment, dated Aug. 5, 2013, in Criminal
Cause No. H-12-255S``led United States ofAmerica vs. Hem•i De Sola Mo1•ris, now
pending in the H~n Division of the U.S. District Court for the Southern District of
og
Texas, attach~reto as Exhibit "A", and incorporated herein and made a part hereof by
g
referenc~ set out in full, pursuant to Tex. R. Civ. P. 58. Morris has now pled guilty to
the federal criminal charges arising from crossing state lines to put drugs into the drinks
4 Uncle Remus: His Songs and His Sayings, Harris, Joel Chandler, D. Appleton & Co., New
York, N.Y., 188o.
3
of four female employees to allow him to sexually abuse them while they were thereby
rendered helpless and totally vulnerable.s When directly asked on the record by the
presiding federal district judge, during Morris' criminal plea healing, whether he put the
s See: Houston~ic!e, Software Company ChiefAdmits to Drugging Female Employees for
Sex Abuse, No dfuer 1, 2013: New York Daily News, Softwm•e ChiefAdmits to Raping Four
Women on ~?~ ess Trips, November 2, 2013, attached hereto as Exhibits "B" and "C" and
1
·
admissibJ€\~er Tex. R. Evid. 902(6), Hardy v. Hannah, 849 S.W.2d 355, 359 (Tex.App.-
Austin 1~writ denied); Donaldson v. Taylor, 713 S.W.2d 716,717 (Tex.App.- Beaumont 1986,
no writ).
6This confession of relevant facts is admissible under Tex. R. Evid. 902(4), 6og(a), 803(22). See
Benton v. State, 336 S.W.3d 355, 357 (Tex.App.- Texarkana 2011, pet.ref'd)(copies of public
records admissible), Reese v. State, 273 S.W.3d 344, 349 (Tex.App.- Texarkana 2008, no
pet.)Uudgtnent regarding previous conviction admissible) and Hardy, 849 S.W.2d at 359.
4
the Comt to pe1form that evidentiary analysis, the following relevant facts are provided
from Plaintiffs' pleadings and discovery herein undertaken to date.
a. The evidentiary facts the Court may and should consider.
In their Plaintiffs' Third Amended Petition, the specific assault~ery claims
asserted by the Assault Victims are as follows: ``
1. During a November, 2011 trip to New· Orleans, Louisiana, M``·ugged Plaintiff
¢~
Michelle Barnett by putting an unknown substance int~ drink, unbeknownst
o@j
to her. During this time, Morris attempted to ~"1\lly assault Barnett and
attempted to forcefully remove her clothing, ( P`` ~ 9);
2. During a January, 2012 h•ip to New York, N~k, Morris drugged Plaintiff Keri
Hill by putting an unl)}l~
evening, (84:2-8); and, they stayed there about 30'V tes or less, (84:9-13). She went to
a setup buffet and obtained some appetizers on~@ate, (84:18-19), and she poured herself
'"'~
a vodka soda drink, (84:20-23), at a self-~catt, (85:2-14). However, she only drank
about half of it, (86:16-19). ~
That day, before arrivingJR"'~41ounge, Ms. Barnett had eaten breakfast, a salad
for lunch and two bags of pea`` the plane, (85:16-25);, then, in the lounge, she had
the appetizers, (85:19-21).~e Morris arrived in the lounge, they only stayed there a
short time, (86:12-16).~9ris wanted to go to a restaurant for dinner and he made to-go
~
cup drinks to take ~e drive there, (86:19- 87:10). Morris poured the remaitung half on
her drink into ~fo-go cup and then he added to it, (87:9-16); and, he prepared a to-go
drink for~lftoo, (88:4-5). Importantly, Morris took her drink from her to make her
to-go cup drink, (88:6-9); and, during the time he made it, he went behind her so that she
could not see what he was doing, (88:6-20). They did not have reservations, (89:7-18);
so, they then wentto Mr. B's for dinner, which was across the streetfrom the hotel, (88:19-
89:6). There was no wait at the restaurant and they were seated immediately, (89:19-25).
10
Ms. Barnett only had a sip or two of her to-go drink because it was very strong,
(90:8-11). When they went into the restaurant, the drinks were taken from them, (89:24-
90:7); so, they ordered more drinks, hers again being a vodka soda, (90:15-18). Up until
that time, Manis had done nothing assaultive, (91:25- 92:6); but, near the end oftheir
meal, significant events occurred, (93:8-11), During the course of her di~"'toth of them
drank and she consuming a total ofthree drinks, (92:10-24); the d~Qasting about two
hours, (92:25- 93:1). Near the end of dessert, a waitress asked ``fthey wanted more
o@;J)
drinks, and she said no, (93:8-14); however, she excused h~o go to the restroom and
when she returned to the table, two drinks were sit~ere, one for her, (93:14-16;
95:13-16). Morris claimed the waitress had just br~em, (93:19-24). Since she didn't
want this new drink, she only had a few sips of~'bJ4:12-24); then she dumped it out into
her water glass, (94:21-25; 95:17-24), bec~e didn't want it, (95:22-25).
Then, they left to walk on Bou~ Street to look at the customer's building,
(96:20-24); but they never got th~doing into a piano bar called PJ's instead, (96:25-
97:7). (She later corrected t!Q~e to Pat O'Brien's, (145:15- 146:2)).Going in was
Morris' idea, (97:8-21); sh~tipsywhen they arrived there, (97:22-24). Morris ordered
more drinks even tho~1fe did not ask her if she wanted one of, if she did, what kind,
~
(98:18-25), The dt~he received, she later learned, was a "Hurricane", (99:1-15). She
nq;~G .
didn't refuse ~'e;;lft•ink, but she felt Morris was intentionally trying to get her to drink
more tha~vanted to, (99:20- 100:4), because she had specifically told him at the end
of dinner that she didn't want to drink more because they had to see the elient in the
moming, (100:5-10). But, she felt compelled to dt·ink more at the piano bar because she
was with her boss and she was trying to "go along", (100:17-21; 101:19-23). The Hmricane
was a very big drink, (100:22- 101:8); and, she didn't !mow he was ordering it and
11
therefore didn't have a chance to say she didn't want it, (102:6-21). Once it came, she a
third to a half ofit, (103:6-7), because it was very "alcohol intensive", (103:8-13); but, even
so, while she was again in the restroom, Morris ordered another one, (103:16-23). This
time, she told him directly she didn't want another and asked him why he had ordered it,
(104:21-24); in response, he told her to drink the new, full Hurricane a~ moved the
half-full one away from her, (104:25- 105:3)! ~a
s`` compelled to drink
She again told him she didn't want it, (105:6-8); but,
some of it and she drank about a quarter of it, (106:2-~e later learned tbat tbe
principle alcohol in such drinks is Bacardi 151 proof ru~o6:7-17); and, she could not
recall ever before having drunk such potent alcoh``:l-6). She has no recollection of
leaving the piano bar; she can only remember ani'llrm pulling her out of her chair and that
{!?
is the last thing she remembers, (105:17~08:9-13). Later, she discovered the next
morning tbat it was Morris, who had p~ on her arm, (108:18-23). The next thing she
remembers is Morris pulling he``er off, (109:19-22); then, she remembers running
to the bathroom in her hotel~ to throw up, (110:1-5; 110:25- 111:3). She remembers
saying, 'Oh, this isn't hap~g to me." (111:7-9); and she remembers someone pulling
her clothing off and sh@fearful for her safety, (111:10-14). But, she doesn't have a vivid
recollection of ``g else, (116:10-12). And, it is here that the real horror of her
experience b~es exquisitely clear. This good and decent woman was rendered
incohere``the intentional drugging of Morris; and, she is left now to forever wonder
about what vile things he did to her while she was unconscious. Did he rape her? Sodomize
her? Photograph her naked as he did others? Share those salacious photos with others?
The possibilities are extensive and the implications foul and odious. And, despite
Defendants' persistent assertions to the contrary, her awful victimization is not erased
12
because she has no memory of it; in the same way that a surgeon's malpractice blunders
are not negated by the fact that the patient was asleep when his tort occurred!
In the morning, she called her husband, (116:13-15). She told him about the
previous evening and that she felt uncomfmtable and didn't want to go see the client,
(117:12-15). Her husband advised her to go to the client's in a separa``nd to write
what she could remember down and to tell Morris that what had ha~gd made her very
uncomfortable, (117:18- 118:1); which she did, (118:2-3). Lat~ notes upset her so
oci@
much she threw them out, (118:4- 119:3). Opposing coun~essed Ms. Baxnett about
why she didn't call 911 or otherwise report that night; h~e said she couldn't be sure a
crime had been committed, 122:3-23); and, she ~nted to go home and make the
evening go away, (123:12-18). But, she didn't gg~me immediately; she prepared herself
~
for the day ahead even though she didn't ~o, (123:19- 124:25); and, then she texted
Morris that she was uncomfortable ab~he previous night and she wanted to go home
and would get herself to the airpo``h5:1-4; 126:10). Morris' breathtakingly deceitful
response was to show up im~ly at her door indicating that he was very unhappy,
(126:11-25)! He knocked ~r door, but at first she didn't answer because she wanted
him to go away, (127:~but, he kept knocking "like forever", (127:4-5). Through the
door, she told him`` away, (127:11-14); but, as she entered the hallway with her packed
bag, he was st~e, so she had to talk to him, (127:13-25),
81~ him she was uncomfortable and wanted to go home, (127:25- 128:5); she
was not 100% sure it had been Morris; but, she felt that he had assaulted her and tried to
ruin her clothing, (128:13-25). She was certain she was with him and left the piano bar
with him, (129:1); and, she felt he had done this to her, (129:7-9). In response to her
discomfort, suave predator that he is, he told her he didn't understand her concern
13
because she had come to his room and laid in his bed, where he didn't touch her, (129:18-
20); but, she adamantly disagreed with this version of the events because she didn't even
know where his room was, (129:21-24; 131:9-14); and, she told him so, (131:6-14). He
responded that he "respected her and didn't want to lose her", 131:15-18). Very
interestingly, Morris gave her back the sweater he had taken o``ffering no
explanation as to why he had it, (136:14-19). He asked her to go see it,Yient, and though
~he did, (132:11-12).
she didn't want to, she finally agreed to do so, (132:1-10);
However, because of their conversation tlley were late arr~t the client's, so Morris
lied and said tlley had problems getting the car out oft~rage, (134:1-7).
Defendants, just as they did in their MSJ, ``uch of the fact that Ms. Bamett
testified that her claims against Morris arise ftQ~ns role as her supervisor in the course
~
and scope of employment, (137:18-21); b~ectfully, she is not a legal expert and has
no basis to make such a legal assertion~ey also focus on her testimony that her claims
concern her employment and M~$~onduct in a work context, (198:11-16); but, again,
she is not qualified to make s~etermination. Ms. Barnett is the highly traumatized
victim of a vicious assault ~1e is not a qualified expe1t on Texas or federal employment
law. Moreover, Defen~9offer not one word of explanation as to how drugging a woman
~
at dinner for pu~s of sexual molestation relates in any conceivable way to job
o(!:J'
performance ``rkplace conditions; for the obvious reason that it does not.
W~e returned home, she talked to her husband, (145:7-9); because she just
couldn't understand how she went from being in control of herself to having no
recollection, (145:10-14). She decided then she needed to look for another job, (146:8-14);
and, she began to look for one, (146:15-16). She liked Beth Jackson, but didn't trust her
and tlley did not discuss what happened, (147:22- 148:10); and, she not discuss it with
14
any other Edible employees until a few weeks later, when she talked with a new employee,
Erin Bjork, (148:11-22). She specifically told her she thought she had been drugged and
that Morris had attempted to sexually assault her, (149:25- 150:18). She also told her
husband that, (150:19-21). She made no attempt to preserve a urine sample or other
evidence because she just didn't have the opportunity to do so,
further conversations with Morris about the matter until about
*
(151:~. She had no
a~M later, which he
initiated, (153:21-25); he said he was concerned for her and ``plied she was fine,
o!?@
(154:1-7). A similar exchange occurred on another occasio~4:8-14). She just tried to
avoid him, (155:11-19), unless contact with him was re~®a, (155:20-22).
Ms. Barnett never discussed the matter wi~v employee Michelle Byrd, who
dealt with sexual harassment matters, becau``e felt it would be unsafe to do so as
Morris was the company president, 158:~9:2); thus the anti-harassment plan was
"unsafe" for her, (159:9-24). She thougl~e idea that Morris would lose his job while she
kept hers was ridiculous, (159:3-~ owned the company and she was a hireling, and
any complaint she made wo4e gone directly to him, (160:1-24). After Morris had
been arrested for the cri`` charges against him, (including one flowing from her
complaint), she told M``nk Lettieri, with her former employer, what happened to her,
~
(163:4-8). After r~ng her assault to the FBI, she had a difficult time, (170:6-7). But,
she couldn't j~it until she found another job because she couldn't afford it, (172:21-
173:1). L``en she did quit, she needed family assistance to make ends meet, (187:15-
22). She finally talked to Keri Hill about her assault, at the suggestion of Erin Bjorl<,
(173:8-16). Their mutual allegations were remarkably similar: both traveled with Morris
early in their tenure with the company; both met Morris in a hotel concierge lounge; both
received to-go cups from him, containing drinks he had mixed; both completely lost their
15
memories; both had no history of excessive drinking; and, both were terribly
uncomfortable about what happened to them, (174:14-25; 175:1-6). Ms. Hill specifically
told her about Morris pressing his face to hers and telling her what a good employee she
was and that he wanted her to be with him for a long time, (175:11-14). However, even
when she resigned fl'Om the company, she did not give the attack as a ``because she
feared for her physical safety, (190:7-16). ~U
After she left the company, she sought unemployment ~s and told the Texas
Workforce Commission she had been a crime victim, ~4-24), (not a victim of
workplace discrimination). She told them all she coulcb~mber, (193:22-194:6); she is
now certain she was drugged by Morris because sQ~consciousness and later when he
was arrested, blackout drugs were reported in~ news to be on him, (194:18- 195:19).
~
Again, opposing counsel pressed Ms. Bar~ the fact that she really has no memOl'y of
what happened to her, (199:4- 200:1~ut, that speaks to the efficacy of his assault
technique, it doesn't negate its oai{Vce or legitimate claims arising therefrom. Indeed,
she eloquently explained tha~ day since the attack, she has suffered panic attacks,
anxiety, fear, panic, bein``~mt from her family, having to think about this "shit" every
single day and not b``ere for her children when they need her, (201:12-21; 204:6-
. ~·
20); for whiCh s``s seen the FBI counselor, (203:1- 204:3). She has also lost work,
(204!23-25).``efore, her testimony completely supports the prima facie
assaultf~y claims she herein asserts.
Plaintiff Keri Hill testified in her eight and a half hour long discovery deposition,
(in which undersigned counsel for Ms. Hill again reserved all questions until time of trial),
in relevant part, that she lives in Houston, v.1th her husband and two children, a 13-year-
old son and a 5-year-old daughter, (5:15- 6:8). She graduated from Texas Tech University
16
with a bachelor's degree in social work, (27:14-23; 28:4-5). She left her employment at
Edible on April 30, 2012, (20:3-8); and, did not find a new job until August 2, 2012,
(18:10-12). She first learned of a job at Edible in November, 2011, (31:13-15). Slightly later,
she had an interview and met Defendant Morris, (37:10-15). They hired her, but before
she began worldng there, on December 12, 2011, (40:3-4), she att~their office
Christmas party, (39:17-25). There was drinldng at the party,(43:1``~.
About a month after she began worldng there, a u·ip to ~qork came up, (45:9-
o@;j)
19). Morris made all the travel arrangements, (48:6-7). ~ flew to New York on a
Sunday, (50 :12-14), and she drove herself to the airport``et Morris in the Continental
President's Club, (50:21- 51:5). She got to the airp`` and ate lunch by herself, (51:10-
17). As soon as they entered the VIP lounge, 1~s ordered two Bloody Marys, (52:1-5);
Morris obtained the drinks at a bar and ~ht hers to her, (52:10-15). The choice of
drinks was Morris', (53:7-12); and, she ~nd up drinking two of them, over about 30-45
minutes, both ordered by Morri``6- 55:1). She also ate a plate of snacks during that
time, (55:2-4). On the plane,~ sat next to Henri in first class, (55:7-10); as he had
upgraded her to ticket, (5~0). During the flight, she drank two vodka and cranberry
drinks, 57:22- 58:9); ll[~espite having four drinks during that day, she felt fine, (58:6-
12), as she also at``al
o{»
during the flight, (58:13-25).
When ``ane landed, they obtained a rental car, (59:10- 60:12); which Morris
got to pi``d in doing so she felt he was showing off, (60:16- 61:9). Then, they drove to
a Marriott hotel, which was so close to the airport she thought it would have been just as
easy to walk there from the airport, (61:15- 62:1). When they checked in, Morris was very
jovial, knew many of the employees by name and went behind the counter to hug several
people, (63:3-8); from this she assumed he traveled there a lot, (63:20-24). During such,
17
Morris advised her that Beth Jackson would also be arriving, (63:8-17), He checked both
of them in, (64:11-20); they had rooms on the same floor, (64:21-22). They got to their
rooms at about 5 pro, (65:13-15). Since she had never been to Manhattan before, Morris
said he would drive her there for diner, (65:18- 66:23). She wanted to see the lincoln
had time, (68:10-24). Weirdly, there was a single photo of it in
*
Center skating rink, (67:10-20).; and, since there was business plann~t night, they
he~Yne the next day,
but, she had no memory of being there, (111:1- 5). ·~
~
..``
Before dinner, Ms. Hill called her husband to tell ~e had arrived safely and
that they were going into the city to eat at a deli, (69: 1•~and, she also talked with her
kids, (70:3-7). After that, as instructed, she met ~in the hotel's concierge lounge,
(70:22). There were a Jot of snacks there and sh&li1•anted some; but, Morris told her not
~&
to fill up because they wonld be eating a b~er, (71:16-22). Dming that time, Morris
ordered two vodl{a and cranberry and ~ixed both his and hers and handed her drink
to her, (71:21-25), She drank abo];!t~# of her drink, (72:14-15); when Morris told her it
was time to leave for dinner, ``went up to the bar and got two to-go cups, (72:16-
25). He said the cups won~em take their drinks in the car, (73:1-4), Importantly, he
took her half-empty d~from her and replaced it 11oith a new drink which she didn't
~
want and didn't a~r; then he turned his back to her and made the to-go cup drinks
while she coul#see what he was doing, (73:7-11). She knew drinking in a car was not a
good ide~he said she wouldn't have done it herself, but, she was 11oith her boss in a
new job, so she didn't protest about it, (73:22- 74:24). Morris brought three cups, on
which he had written his name on one, her name on another and "spare" on the third,
which struck her as ve1y odd, (74:25-75!4). Morris carried two and she carried her own,
(75:8-10); and, they walked to the ear, (75:11- 76:1). She had two sips from her drink
18
during this walk, (76:2-7). After that, she has absolutely no recollection of the entire
evening, until she remembered trying to get out of the car back at the hotel, much later,
and trying to find her room, (77:1-19). She has a vague recollection of getting into the car
and the car moving, but none of anything else that night, (78:2-25).
She has a one-two second flash memory of trying to get out of~' (79:9-18).
(79:2~-f. She remembers
She can't recall eating or drinking anything that entire night,
trying to find her room because she felt uncomfortable and lo`` couldn't figure out
where she was, (80:1-13). She felt like a little ldd who was ~and dreaming; saying, "I
had zero ability or control over what was happening, a~ remember that I don't know
where I was, but I remember that I wet my panQ~5-10). The next recollection she
has is standing in her hotel room, with Mo``tanding over her saying he had been
looking for her, (82:15-20). She had no~ how he got into her room, (82:21-22).
Opposing counsel asks her if it is true tl~orris was expressing concern for her, and she
agrees that this is what he said, ~V 84:6); but, with due respect to opposing counsel
for doing his job, the total pict``ich emerges from this nightmare is horrific. Ms. Hill,
a wife, mother and colle~duate, on her first company trip, has been reduced to a
terrified, confused, in~qnent mess because she was drugged into insensibility; and,
here is her attacl``pressing his crocodile tear concern for the awful predicament he
0~
has malicious~tentionally put her in! Bluntly, it's difficult to imagine a more fiendish
exploita`` trust or the dignity of another human being. Moreover what he did to her
on still another trip only confirms her darkest fears of what he did to her on this one.
Ms. Hill remembers asking him to leave, (84:14-15); he responded by telling her to
sit on the bed and watch TV with him so she would feel better, (84:16-21). She refused
and asked him again to leave, and he did. (85:5-8). But, he likely did so because by then,
19
she had her husband on the phone, (85:9-13). She was later told by him that she said
Morris was in her room and she had walked into the bathroom because she felt very
uncomfortable that he wanted to stay to watch TV. Her husband told her to ask Morris to
leave; but, she has no direct memory ofthat conversation, (85:14-25). At that point, she
didn't feel physically violated or in danger, (86:14-25); but the next ``~g, Monday,
Morris made a comment about her drinking the previous evenin~Y she felt terribly
embarrassed that she had ruined her new job, (89:2-6); so, ~pologized profusely,
0~
(89:7-8; 89:22- 90:3; 90:16-19). Morris told her he had~"Relp her walk around the
previous evening, but, she had no memory of that, (89•``·
After breakfast, they went to see the client, ``24); and, she was functional that
day, (93:17-20). Late that afternoon, they retu~:o the hotel and Morris decided he
~
wanted to take her back into Manhattan a~or dinner, which he did, (94:3-11). Before
they went, she again talked to her hus~ and apologized as she had never before had
an "alcohol issue" before, (94:``). Her husband was perplexed about what had
happened because that was n~bo she was", (95:10-21). Even then, she didn't believe
Morris was responsible fo~ previous night, (95:22- 96:1); but after her trip with him
to Chicago, she compW~ changed her mind, (96:2-6), However, that second night in
Manhattan was tl.~ntfnl, (96:24- 97:12); although when he again brought up the
o\0)
previous eve`` she told him what happened to her was scary as it was so out of
charact``er, (97:17-21), Also, while she did agree to have a beer in the concierge
lounge, Morris offered to make her stronger drinks a couple of times which this time she
flatly refused, (98:10-18).
The next day they worked with another client and Beth ,Tackson arrived at the
airport late that day and theywentto pick her up, (102:23-103:16). She met Beth the first
20
time then, (103:20-21). That evening, she, Morris and Beth met in the hotel restaurant for
dinner; but, during the meal, Morris left and when he retumed, he had drinks he said he
got from the concierge lounge, which she again thought was vety odd, (105:23- 106:6,
106:23-25). She left the next morning by herself and didn't see Morris again until later
that week, (107: 10-19). '*
~([7$
Her next trip with Morris was to Chicago, to meet a client i``ria, (108:12-20).
He initially asked Erin Bjork to go; but, she refused, (109:8-18)``s. Hill volunteered,
0 "@,
(109:19-110:18). This trip was in February and they flew o~tnwest, (113:6-12). At the
airport, she ate lunch and had a beer, (114:4-17). She ~rum and coke on the plane,
(115:5-6), and Morris had a drink too, (116:3-4).#when she went to the restroom,
Morris ordered her another drink and was po~ it into a new cup when she returned,
~
(117:8-21). After that, she has no more r~ctions of the rest of the day, (119:10-16),
except that she could recall that the ne,~ink looked "muddy" or "foggy" and that Morris
poured it really quickly and hand~e first cup off to the flight attendant, (119:19-23;
120:3-15; 120:24). She finally~ to be conscious of her surroundings again about 10
pm that night, (121: 20-25~ has flash memories of Morris had her hands intertwined
or locked together wit~ris', (122: 1-6); and, this may have happened a couple of times,
(123:1-2). She als~embers Morris' face being pressed against the side of her face and
her feeling v``comfortable physically and emotionally. He told her she had a long
career a~t she was a valuable member of his team, and he "had ahold of my hand
that was nowrubbingin my vaginal area as well as up and down my leg." (123:9-20; 124:1-
8). This contact was outside of her clothing, (123:24-25). During this attack, she got
physically sick several times and she felt the need to try to get up and get away from where
21
she was, and she again felt like a little kid, (124:19-25). When his face was pressed agaulSt
hers, she also recalled seeing a square condom packet, (132:1-7).
This time, she was certain she had been drugged because she was on a business
trip in the daytime and she got on a plane to go to Peoria, yet she was there without any
memory of how she got there; and it definitely was not a dream or nigh~(125:7-20).
She firmly believes her drink was drugged, (126:9-10). And, a~JlVrorris' criminal
attorney, Chip Lev.>is admitted in a news broadcast that MolT``s arrested with such
drugs on his person, (126:20-25). Her next recollection w~g in her hotel room and
Morris was there too and a to-go cup was on her dres``he asked Morris to leave and
he did so, (129:17-23). Based upon his druggi`` on the flight on this trip, she
concluded that he had drugged her before in th~ew York concierge lounge before they
~
went to dinner, (130:14-24). The govern~ld her that tests confirmed such drugs on
Morris' person, (131:10-16). ~
The next day was spentwi~client, (135:9-10); and throughout the day, Morris
made several sarcastic comme~at the trip took a long time because "they had to stop
seven times" for her, (135~). That night, they went to dinner \lith the client and she
had a glass of wine, (``19). On the way to dinner, Morris grabbed her hand and she
pulled it back qui~ecause she felt extremely uncomfortable and he told her she was
being silly, (1f:'9:). Then, as they entered the restaurant, he told her he would hold her
hand du~nner under the table, but she ignored him, (137:18-23). When they got back
to the hotel, he asked her to go to the casino. When she refused, he got very frustrated and
sarcastic and began whining and pouting that he would have to sit by himself, so she
relented and said she would have one drink with him, (138:6-15). They went into a bar
and Morris ordered two drinks; but, when they came, he took them behind a dessert menu
22
with his back to her, so she walked over and got her drink, a glass of wine, and sat down.
He was on the phone. (138:16- 139:5). She was worried he might do something to it,
(139:10-15). She knew at that point that something was seriously wrong, but she had
trouble "getting her head around it", (139:16-23).
Even so, she was scared to report what had happened, (140:4``d, she was
very confused and trying hard to make sense of what had actu~appened to her,
(140:17-22). However, she told her husband about it when sh~ome, (140:11-16). In
the meantime, she went with Morris back to Chicago fro~·ia to see another client,
(141:2-25); and, there were no more problems, (142~®). When she did talk to her
husband, he saw a bruise on her arm; but, she tolQ~he hit a wall because she ·wanted
to "wrap my head around a much bigger conve~tion that I knew we were going to have
~
to have," (143:12-15). She first noticed th~se when she awoke in Peoria the morning
after her bizarre previous day, (144:7~. Finally, she and her husband discussed the
matter frankly, (15-17). They m``unch and she told him she was ve1y upset about
having major memmy losses ~o successive business trips, (145:3-11). He told her that
when they talked on the ~ while she apparently was in the car ·with Morris enroute
to dinner, her r?.r;»
speec~as slurred and he was astonished at the extent of her ve1y
~
uncharacteristic ~dng, if that was what the problem was; and even then he told her
she might ha «f-in drugged, (145:15- 146:1). She had no recollection of even having that
~
phone c``ation, (146:4-13).
She then told her husband all the rest that had happened in both New York and
Chicago; and, he became very sad and upset and suggested that she discuss the matter
with a friend of theirs who is a narcotics investigators with the Houston Police
Department, (146:15-24). She did have that conversation and was referred to the FBI,
23
(147:16- 148:9). As a result of that, a sting was arranged with her at the Houston airport,
so Morris could be arrested, (149:23- 150:3). Not surprisingly, the day after Morris was
arrested, she was placed on leave of absence and less than two weeks later, she was fired,
(154:23- 155:13). Needless to say, her abrupt termination for reporting Morris' repeated,
depraved violations of her stands as profound and eloquent ~on of her
apprehensions about ever reporting Morris' conduct. She believ~Wt would be both
pointless and dangerous and she was absolutely right! Since th``cidents, Ms. Hill has
o~ci@
suffered lots of anxiety, panic attacks and "fear of movem~"tts7:11-16).
Both Monis' civil and criminal lawyers pressed~ Hill for long hours on many
details surrounding these matters; but, while De``~s seized upon various aspects of
her answers in their MSJ and continue to do SQ~ the instant Plea, they at the very most
~
present only a broad range of relevant fa~out which reasonable minds could differ.
Ms. Hill has pt·esented more than eno~testimony to support her prima facie liability
allegations. Therefore, the Plea ~·ly defective as a matter of both fact and law and
should be denied in all of its ``Iars.
Plaintiff Stacy Stew~stified in relevant part, in her discovery deposition which
lasted in excess of fiv~rs, that she lives in Austin, (4:23-24), with her husband and
~
two children, \8~2), a 13-year-old daughter and a 12-year-old son, (9:3-12). She
worked at E.:lq,f~
'§Sy only about six weeks, (11:4-7). She was a software implementation
speciali~4-15). She graduated from the University of Texas at Austin in 1993, with a
bachelor's in business administration, concentrating in business information
management computing systems, (18:8-19). To get her job at Edible, she interviewed with
Morris, (21:7-25). The meeting lasted an hour and she also met Trevor Morris and Beth
Jackson, (23:14-18); and, she understood travel would be required in this job, (23:3-10).
24
She was offered the job there and she accepted, (24:3-10); and, this was in late February,
2011, (24:12-20).
Her testimony in regard to her abuse by Morris is a bit curious in that opposing
counsel chose to question her in the context of what she told the FBI when she was
subsequently interviewed by them about it; so in transcripted form i~third-party
feel. But, in that contest, she stated that she travelled to Boston wit~J·ris to attend the
0~
Boston Seafood Show, (46:1-8), on March 18, 2011, (57:3-~ she went at Morris'
invitation, (57:12- 58:8). Morris made all of the travel ~ments, 59:10-15). They
stayed in a Maniott hotel while there, (61:2-6). At ``ouston airport, she drank a
Tanqueray & tonic, (62:14-21); and, during the fl~Boston, she had a glass of wine,
(61:24- 65:7). §!P
After she arrived in Boston, she ~orris in the lobby and they checked in
together, (63:3-6); then, as instructed``met him in the hotel's concierge lounge for
drinks, (63:10-16). There, she n``ris, Beth Jackson and Beth's mother, who lives in
the Boston a1•ea, {64:2-10 ). S~ another Tanqueray & tonic, (64:8-11). She made that
drink herself; but, a short"'~"' later Morris made her another one and brought it to her,
g~:~;f'''
(64:22- 65:3), She als~ some snacks, (65:19-20; 66:2-4), Then, they went to dinner at
~
Legal Seafood, (~-21). At dinner, she had a glass of wine, (67:8-9). They left the
restaurant at~ 8:45pm because she wanted to walk to an adjacent mall to buy a shirt
before t~es closed, (67= 12- 68 :2). From then on, her recollections were very sketchy,
(69!15-70:1).
The next morning, she woke up with a severe hangover, (46:18-19; 47:3-6); and,
she went to a nearby mall to look for a Colee and some food to make herself feel better,
{52:14-16). She explicitly stated that her hangover was caused by Morris' drugging her by
25
putting something in her drink, (73:3-24; 73:25- 75:7). Her hangover felt like she had
been run over by a truck, (75:8-13). She did not see Morris put the substance in her drink,
(83:25- 842); but, she is certain that he did, (84:3-7).
Later that morning, she attended the food show, which lasted all day, (85:3- 86:9).
When they all returned to the hotel, they, (meaning herself, Morris, ``ackson and
another man), again gathered in the concierge lounge, (87:4- 88:~Kere, she had two
Tanqueray & tonics, (88:11-17). Manis made the second dr~ut of her sight and
brought it to her, (89:4-9; 89:23- 90:4). Then, they went ``er at a pizza restaurant,
{90:4-10). Beth's mother joined them at dinner, (90~>~). There was no drinking at
dinner, (90:22-25); and, she could recall that s``·ned to the hotel where Morris
instructed her to join him in the bar while he :~he others to "go ahead", (91:2-9). They
had a conversation during which Morris t~r how important she was to the company,
(92:10-14); then, the conversation turn``irdlyto another woman's breasts, (92:15-18).
Then, Morris went to ge``~ for them at the bar; and, after he returned, he
began to massage her should~92:18-21). This was out of the blue, (48:17-20; 11-14);
and, it mad.e her very unc``rtable. But, before she could protest about it, he stopped,
(49:17-20). Later, wh~ywent up to their respective rooms, Manis asked if he could
~
come into her roo~ continue the massage, (44:19- 45:4; 46:1-6; 51:3-9; 93:13-18). She
quickly decli~d Morris left, (51:10-15); although she thinks he may have tried to get
into her~' (93:21-25). During that evening, she had two Tanqueray & tonic drinks,
both of which Morris brought to her, (46:9- 47:2). The next morning, she again awoke
with a severe hangover, (99:14-18); which she again attributes to being drugged, (101:12-
17i 101:24- 102:15).
26
It deeply upsets her that about the first night she no recollections and has no idea
what happened to her; and, on the second night, Morris offensively touched and
propositioned her, and on both following mornings, she awoke with severe hangovers,
(102:8-12), Also, she feels that because Morris' arrest "with drugs that co~o that" on
his person proves her darkest fears, (103:8-11). It worries her that she ~@t know if she
was raped, (104:10-11). Once again, opposing counsel asked M~wart if she was
0~
sexually harassed and she agreed, (55:20-25; 93:5-12; 116:13-2~:5-15); however, she
o~er suit are, (149:18- 150:7);
J
therefore, she is not qualified to discuss its legal ~ s. She can only speak to the facts
she knows. Moreover, it is unfortunate in the~eme that while she is plagued by the
haunting fear that she was raped while in~e and totally vulnerable through no fault
of her own, Defendants' only focus i~ dismiss the matter as a routine matter of
workplace misconduct which sho`` disposed of on irrelevant technicalities,
Mter she returned to~ston, from the Boston trip, Morris criticized her
a~t.e didn't tell him she was offended by his conduct because
performance, (125:7-22); ~Ml
"she felt the time to ~o was with a lawyer in a courtroom", (129:3-22). While the
~·
company had a h~ resources department, she felt it would have been futile to talk to
it because it w~aded by Allen, Morris' son, (129:23- 130:17); and, she never received
the comp``exual harassment policy, (130:18- 131:9). However, when Morris fired her
in April, only six weeks after she began, she bluntly asked him if it was because she
declined the massage proposition and he cut her off, saying, "We're not going there."
(131:25- 132:19). In regard to her overall testimony, it should be noted that there are
disturbing consistencies in the facts alleged by all three of the Plaintiffs; each was isolated
27
on a trip with Morris shortly after beginning work at Edible; drinking was a prominent
feature of every trip; Morris encouraged the drinking and brought drinks he made to each
woman; each suffered blackouts and memmy loss; each alleges physical offensive contact;
each was primed with virtually identical soothing assurances; each was made to feel ve1y
uncomfortable; and, each fears she was raped while unconscious. An`` this was at
the hands of the company president and CEO, many years theikYor and married.
Individually and in toto, they clearly state viable prima fa~saultjbattery claims
against the Defendants, which have nothing what~o do with workplace
discrimination. o,jjff
In addition to the facts presented in the d~ depositions of the three Assault
Victims, additional depositions have been, ~rein obtained as well. Interestingly,
~
Defendants made no mention whateve1· ~m in their previously denied Motion for
Summa1y Judgment and they persis~ that glaring omission in their instant Plea.
However, their testimony is velyore.ant to the Court's instant analysis, so they too are
succinctly summarized. Q~
Andrea Farmer te~8 that Morris was frequently inappropriate in the office,
such as hugging wo...k'-~nployees
``/
and drank excessively, (22:6-15); and, she saw him
pour something ~eth Jackson's drink in Chicago, (22:16-19). Indeed, she felt he was
"constantly it&~ropriate", (24:3-5). She worked at Edible for three months, (24:14-15);
(May, ``ugust, 2011, (68:23- 69:2)), and, in fact she complained to Morris' sons,
Trevor and Allen and she was told, "That's just the way he is. Just ignore him." (24:16-
26:6). On two trips, she observed him being sexually inappropriate with Beth Jaclife
did not, (54:9- 56:2; 57:~:5; 58:25- 59:19; 60:5-19). The FBI now has the photos,
(61:1-7). She also con~q that Morris confided to her that he also took nude photos of
~"
Andrea Farmer, (``19). .
She sa~orris often travels with small "airplane" bottles, (63:8-10); which she
assume``ed to "re-cycle" liquor, (63:24- 64:4); and, she has seen Morris often make
drinks for others, (68:12-14), including the use of "to-go" cups, (69:1-3). Therefore,
though she disagrees with Andrea Farmer's testimony "too%", (67:14-16); and also 100%,
(83:12-13), ·with that of Keri Hill, (76:22- 80:15), and even v.>ith that of Stacy Stewart,
(85:17- 88:3), Samantha Gluclc, (88:8-25) and, even Ms. Farmer's allegations about the
37
Aunt Sally's comptroller, (91:20- 93:2); such multiple disagreement must be filtered
through her obvious bias in favor of her longtime lover, (107:20- 108:8), Defendant
Morris.
On the basis of this mass of testimony, it was clear to the Court in its denial of
Defendants previously filed MSJ and its should continue to be clear in t~nt analysis
Am`` Petition claims,
of Defendants' equally flawed Plea that, as set out in their Third
what Morris did to the Assault Victims is morally and legally ``trous. Morris didn't
discriminate against the Assault Victims, whether in or o~e workplace; rather, he
physically attacked and sexually violated them! Mor`` expressly confessed that he
invited or induced the deferential and trusting ~$victims across state lines; where
in remote cities he mendaciously drugged~ and all of them into intentional
insensibility, with the explicit intent offor~y removing their clothing, photographing
them naked and sexually assaultin~em while they were completely inert and
vulnerable. He treated each of ~.J;?fJas slabs of meat, to be abused while completely
insensate and defenseless, fm~sole purpose of gratifying his perverse, deviant sexual
appetites. And, because hi"~n-practiced drugging technique was ve1y effective, he now
``
comes to this Court ~ng that the claims of the Assault Victims be trivialized and
``
disposed of nude~ rubric of the TCHRA, which was intended by the Legislature to
provide an or# mechanism to deal with workplace discrimination and most certainly
never in~d as a procedural means to protect deviant sexual predators. In seeking such
a result, the Defendants brazenly ask for perfect immunity from personal, moral and legal
responsibility for Morris' overtly criminal and intentionally tortious acts. What an
astonishing extremis to twist a "Human Rights Act" into!
38
Both the previously denied MSJ and the instant Plea are factually predicated upon
the Assault Victims' physical inability to remember all of the details of their victimization.
But, such chemically induced diminished memory does not erase either the occurrence or
magnitude of their violation; it only emphasizes just how appallingly awfully they were
treated. Defendants' persistent pursuit of summary and/ or proced~"~ief on this
dismissive basis defies logic and common sense and is fatally defec``r four important
nea``entical, even though
reasons. First, the stories of all of the Assault Victims are
they were separate in time, place and victim; which very ``cingly establish Morris'
modus opemndi, as well as his malevolent, confessed ``anal conduct. Second, these
allegations are further confirmed by the depositi~rin McMullan, Andrea Farmer,
and Samantha Gluck, the latter two being ad``al assault victims who do not happen
to be plaintiffs in this case. So, thus f~y five victims corroborate Morris' vile
conduct.' 2 Third, no less than a grand j~f the United States of America considered the
fractured memories of the thoro``raumatized Assault Victims and came to the polar
opposite perception of such~ch Defendants now urge upon this Court; finding
sufficient cause to indict~ on multiple federal felony charges which precisely mirror
the actual claims eac``ntiff makes. And, fifth, Morris has already pled guilty to this
~
entire disgusting ``rio!
b. PlaintL~ssert
g"'l' valid assault claims against Morris under Texas law.
T`` should be clear that not one single Plaintiff asserted any claim whatsoever
which is based upon or arises out of sexual harassment in tllEi worl335 B.R. 631, 642 (Bankr. N.D. Tex. 2005), the comt
noted that:
"Texas courts also adhere to the principle that a remedy is
pl'Ovidedfor every legal wrong. See Payant v. Corpus Christi Plaza
Hotel Co., 149 S.W.2d 665-667 (Tex.Civ.App-El Paso 1941, writ dism'd).
However, the Texas Supreme Court is not keen on recognizing _n~rts,
and 'treads cautiously' in this area. See TI·evino v. Ortega, 969 ~d 950,
951 (Tex.1998). The Texas Supreme Court in Trevino stated: (j
This Court treads cautiously when deciding whether ~ognize a
new tort. See generally Kramer v. Lewisville Me ' osp., 858
S.W.2d 397, 404-06 (Tex.1993); Graffv. Beard,• S.W.2d 918,
920 (Tex.1993); Boyles v. Kerr, 855 S.W.2d 5 , . oo (Tex.1993).
While the law must adjust to meet society's cha~ g needs, we must
balance that adjustment against boundles~!1ms in an already
crowded judicial system. We are especially~rse to creating a tort
that would only lead to duplicative litiga\'iJ&encouraging inefficient
relitigation of issues better handled w'1hfu1' the context of the core
cause of action. ~ -664 F.3d 985, 993 (5th
Cir. 2011) cert. deni~132 S. Ct. 2433 (U.S. 2012), the 5th Circuit ruled that: "In Texas ...
•;fllf
'A person... co~ civil assault if he "intentionally or lmmving1y causes physical contact
with anoth~en the person !mows or should reasonably believe that the other will
regard t~ontact as offensive or provocative,"' Id. (quoting Tex. Penal Code Ann. §
22.01(a)(3))." Id., at 993. The 5th Circuit, in Cot1'0neo v. Shaw Env't & Infmstructure,
Inc., 639 F.gd 186, 195 (5th Cir. 2011) cert. denied, 133 S. Ct. 22 (U.S. 2012), further ruled
that: "An 'offensive contact' claim is a type of battery claim under Texas law. '[R]ather
41
than physical injury, offensive contact is the gravamen of the action; consequently, the
defendant is liable not only for contacts which cause actual physical harm, but also for
those which are offensive and provocative.' Foye v. Montes, 9 S.W.3d 436, 441
(Tex.App.-Houston [14th Dist.] 1999, pet. denied); see also P1•ice v. Sho~31 S.W.2d
677, 687 (Tex.App.-Dallas 1996, no pet.) ('Battery requires only an ~ive touching
.... '). Thus, an 'offensive contact' claim does not require a plaintiff to .ru:?Qe that the battery
0``
caused any physical injmy. Foye, 9 S.W.3d at 441." I d., at 195· ~1ifore, it would appear
0~
clear that each Plaintiff may properly assert an "assaul.ery" claim for offensive
d~ instrumentality of drugging
contact. Morris physically touched each Plaintiff thro``~,e
them into unconsciousness; and, he further s~y assaulted each and forcefully
attempted to remove their clothing and/or p~raphed them naked. Any notion that
snch contact was not "offensive" or "pro~ve" defies logic, common sense and any
rational interpretation of human decen~
While the Texas Supreme ~might be reluctant to create new torts, as noted in
Pla:@J.~s do not mge that. Instead, they assert assaultfbattety
In re VarTec Telecom, Inc.,
claims which the Supreme ~t recognized forty-five yea1•s ago, in its lengtl1y treatment
©l~
of such in Fisher v. Ca~sel Motor Hotel, Inc., 424 S.W.2d 627, 629-30 (Tex. 1967):
0
~
"[I]t bas lo en settled that there can be a battety without an assault, and
that act~ifJfi:ysical contact is not necessary to constitute a battery, so long
as ther ontact with clothing or an object closely identified with the body.
1 Ha · -· James, The Law of Torts 216 (1956); Restatement ofTorts 2d, ss
18 9· In Prosser, Law of Torts 32 (3d Ed. 1964), it is said:
'The interest in freedom from intentional and unpermitted contacts
with the plaintiff's person is protected by an action for the tort
commonly called battery. The protection extends to any part of the
body, or to anything which is attached to it and practically identified
with it. Thus contact with the plaintiff's clothing, or with a cane, a
paper, or any other object held in his hand will be sufficient; * * • Tbe
42
plaintiff's interest in the integrity of his person includes all those
things which are in contact or connected with it.'
'To constitute an assault and battery, it is not necessary to touch the
plaintiff's body or even his clothing; knocking or snatching anything from
plaintiff's hand or touching anything connected with his person, 1vhen, done
is an offensive manner, is sufficient.' Morgan v. Loyacomo, 190M``· 656,
1 So. 2d 510 (1941). ~
~
The rationale for holding an offensive contact with such an ~ to be a
battery is explained in 1 Restatement of Torts 2d s 18 (Co~nt p. 31) as
follows: o~
'Since the essence of the plaintiff's grievance consA the offense
to the dignity involved in the unpe1·mitted and i~ional invasion
of the inviolability of his person and not in anmysical harm done
to his body, it is not necessary that the pld~tfffs actual body be
disturbed. Unpermitted and intentional cp~cts with anything so
connected with the body as to be custo~regarded as part of the
other's person and therefore as part~i!:tg of its inviolability is
actionable as an offensive contact ''~is person. There are some
things such as clothing or a c``~., indeed, anything directly
grasped by the hand which areq o timately connected with one's
body as to be universally regm~- as patt of the person.'
g
In Hamed v. E-ZFinance Co., W1 Tex. 641, 254 S.W.2d 81 (1953), this Court
refused to adopt the 'new twz,j;_@'intentional interference with peace of mind
which permits recovery fli\\:fuental suffering in the absence of resulting
physical injury or an as~lt and battmy... However, it is not necessaLy to
adopt such a cause _d[ action ... The Harned case recognized the well
established rule th~ntal suffering is compensable in suits for willful
torts 'which arlJP~gnized as torts and actionable independently and
separately from~ental suffering or other injury.' 254 S.W.2d at 85.
Damages for ntal suffel'ing are recoverable without the necessity for
sho1-1ing ac hysical injmy in a case of willful battery because the basis
of that a · . is the unpermitted and intentional invasion of the plaintiff's
perso~ ot the actual harm done to the plaintiff's body. Restatement of
Torts · · 18, Personal indignity is the essence of an action for batte1y; and
cons&~ ently the defendant is liable not only for contacts which do actual
ph~l harm, but also for those which are offensive and insulting. Prosser,
supra; Wilson v. Orr, 210 Ala. 93, 97 So. 123 (1923), We hold, therefore, that
plaintiff was entitled to actual damages for mental suffering due to the
willful battery, even in the absence of any physical injury. (Emphasis
added).''
Fisher, at 629-30.
43
Moreover, based on Fisher, the Supreme Court, in Moore v. Lillebo, 722 S.W.2d
683, 684-85 (Tex. 1986), made clear that:
"Generally, before awarding mental anguish damages, the majority of
states, including Texas, requires proof of a physical injury resulting from
mental anguish, or a physical manifestation of mental anguish ... In some
cases, however, we have recognized exceptions to this general 1~ See
Fisher v, Carrousel Motor Hotel, Inc., 424 S.W.2d 627, 630 (Te~7).
These exceptions have involved cases of intentional torts, gr~.(l_Qegligence,
or a willful and wanton disregard for another's rights. S~!J., Brown v.
American Tmnsfer & Storage Co., 601 S.W.2d 931, 9~"''ex.1980) (rule
stated) ... We held damages for mental anguish recm~ev · · for a willful and
unwarranted invasion of privacy in Billings v. Atki s , 489 S.W.2d 858,
861 (Tex.1973). And, in a case of assault and batt~, ve approved mental
anguish damages without forcing the plaintiff tO>~onstrate any resulting
physical injury. Fisher, 424 S.W.2d at 630... ,:~
~-
Similarly, in Fisher we applied the same nWecause 'personal indignity is
the essence of an action for battery;~nd :~equently the defendant is liable
not only for contacts which do actual ..' cal harm, but also for those which
are offensive and insulting.' 424 . . d at 630. Each of these decisions
rejected arguments that proof of ll>Jl'Ys cal injury should be required. This is
because torts inherently involvi~ental anguish claims demand proof of
mental anguish, not physical oain. (Emphasis added),"
·(jfY
Moore, 684-85. . ~Y
c. Plaintiffs assert v~qxemplary damages claims against Edible.
Further·, in Fis~Q~ Supreme Court recognized the liability of a tortfeasor's
employer for exemp~'V damages in certain circumstances, including the precise facts of
o~({?'
the instant cas~U
"WE·' turn to the question of the liability of the corporations for
e ary damages. In this regard, the jury found that Flynn was acting
wit n the course and scope of his employment on the occasion in question;
that Flynn acted maliciously and with a wanton disregard of the rights and
feelings of plaintiff on the occasion in question .. , The jury further found that
the defendant Carrousel did not authorize or approve the conduct of Flynn.
The rule in Texas is that a principal or master is liable for exemplary or
punitive damages because of the acts of his agent, but only if:
44
(c) the agent was employed in a managel'ial capacity and was
acting in the scope of employment...
The above test is set out in the Restatement of Torts s 909 and was adopted
in King v. McGuff, 149 Tex. 434, 234 S.W.2d 403 (1950). (Emphasis
added)."
Fisher, at 630. See also Moore v. Lillebo, 722 S.W.2d 683, 685 (Tex. 198~ty of Tyler
v. Likes, 962 S.W.2d 489, 495 (Tex. 1997); Pleasant Glade Assembl~d v. Schubel·t,
264 S.W.3d 1, 16 (Tex. 2008); Texas Dept. of Pub. Safety v. Cox'[~ Newspapers, L.P.,
343 S.W.3d 112, 115 (Tex. 2on). ~
• c?@
d. Even if Texas law did not authorize assault``s,
under its choice of
law rules, such claims still exist under th`` ohelevant states.
Assuming arguendo that the TCHRA and f/' House are somehow determined
to bear on the instant claims, the intentional tofts Morris committed against each of the
~"'
Plaintiffs occurred in states other than ~; and, as confirmed by the Superseding
Indictment now pending againstMor~nd his confessed guilt, such intentional torts
give rise to claims governed b``aw of the state in which each attack occnrred.
Therefore, under Texas' choi~aws rules, the law of the respective assault situs states
should control; and, as h``er discussed, each state's law allows for the claims here
rg~
asserted. Q
In Gutien~ollins, 583 S.W.2d 312, 318 (Tex. 1979), the Texas Supreme Court
overruled lex``elicti, in tort actions. In its place, the Court parsed the many available
alternat~ories and ultimately decided that: "in the future all conflicts cases sounding
in t01t will be governed by the 'most significant relationship' test as enunciated in Sections
6 and 145 of the Restatement (Second) of Conflicts." I d., at 318.
Each case's contacts must be considered individually and, although being often fact-
intensive, is a matter oflaw to be decided by the court. Jd., at 319· More, in subsequent
45
decisions, the Supreme Court emphasized that the application of the contact factors is
not a mathematical calculation of totaling contacts; but, instead must focus on the most
significant contacts.
In 1984, the Supreme Court decided Duncan v. Cessna Aircraft ``65 S.W.2d
414 (Tex. 1984). That case involved a tort, a fatal air ct·ash; but, i`` contained a
significant contract issue, the issue of enforceability of a release. P~Ying to that issue,
o\Qj
the trial court determined that New Mexico law controlled. T~stin C.C.A. reversed
o@gl
and ruled that Texas law governed the release as it was e~ed in Texas; and that the
rule of lex loci contractus required the law of the place ~ making of the contract. Both
parties appealed that decision, arguing that: "the~approach is the most significant .
relationship methodology of the Restatement~ond) of Conflict of Laws, which w[as]
adopted in Gutierrez v. Collins, 583 S.W.2rl'~ (Tex.1979), for tort choice oflaw issues."
i;,g
I d., at 420. g
The Supreme Court reite~tlits holding in Gutierrez that the rule of lex loci
delicti, (application of the la>~re the wrong occurred), was simplistic and arbitrary
and often led to inequitab)R~ults .in a modern, highly mobile society. It noted that the
©~
"significant relationsh~ethodology" of §§ 6 & 145 of the Restatement (Second) of
~·
Conflicts "offers i~onal yet flexible approach to conflicts problems, ... represents a
collection of tf~t thinking on this subject ... [and] include [s] "most of the substance"
of all the``rn theories.' [Gutierrez], at 318." Duncan, 665 S.W.2d at 421. Therefore,
for uniformity and because all of the lex loci rules presented impermissible problems, the
Comt abandoned all such rules for Texas conflicts analysis:
"Consequently, the lex loci rules will no longer be used in this state to
resolve conflicts problems. Instead, in all choice oflaw cases, except those
contract cases in which the parties have agreed to a valid choice of law
46
clause, the law of the state with the most significant relationship to the
particular substantive issue will be applied to resolve that issue,"
Duncan v. CessnaAilocrajt Co., 665 S.W.2d at 421.See also Torrington Co. v. Stutzman,
46 S.W.3d 829,848 (Tex.2ooo); Drennen v. Exxon Mobil Cm'P., 367 S.W.3d 288, 294
(Tex.App.- Houston [14th Dist.] 2012, reh'g denied, review granted Aug. ~013).
Thus, the trial court must decide the issue in the first instancedtermination of
the facts, to which the Restatement sections are then applied).);h..t, that decision of
o~"
whether to apply Texas law is reviewed on appeal de novo. (Sg?~mesota Mining & Mfg.
Co. v. Nishika Ltd., 955 S.W.2d 853, 856 (Tex.1996)).~Q~umber of contacts is not
determinative; as some contacts are more important``
~'>H
others because they "implicate
state policies underlying the particular substant~ssue. Consequently, selection of the
applicable law depends on the qualitative ``of the particular contacts. [Gutierrez1
at 319," Duncan, at 421. ~U
Then, in Hughes Wood Pr·od1jff!jf4nc. v. Wagner, 18 S.W.3d 202, 205 (Tex. 2000 ),
the Court added that: .e."'-0
. ~
"[T]he Restatement r~Qres the court to consider which state's law has the
most significant ~f~onship to the pw·ticular substantive issue to be
r·esolved. See ``tement (Second) of Conflict of Laws § 145(1) (1971),
Section 145(1)~cifically provides that '[t]he rights and liabilities of the
parties with i'Mpect to an issue in tort are determined by the local law of the
state v.~hic£@fth respect to that issue, has the most significant relationship
to the renee and the parties under the principles stated in § 6.' Id.
(emp~ [the court's]); see Duncan, 665 S.W.2d at 421."
Wagne``05. As stated in Duncan, "In applying § 6 to this case, we must first identify
the state contacts that should be considered. Once these contacts are established, the
question of which state's law will apply is one of law. Gutierrez, 583 S.W.2d at 319.
Moreover, the number of contacts with a particular state is not determinative. Some
contacts are more important than others because they implicate state policies underlying
47
the particula1· substantive issue. Consequently, selection of the applicable law depends on
the qualitative nature of the particular contacts. I d. at 319." I d., at 421.
In pe1forming a Restatement Sec. 145 analysis of the contact factors involved in
this case, it is true that the relationship between Morris and Edible awe Assault
Victims is centered in Texas and all of the parties are residents ofTexa~ell. However,
the specific confessed criminal conduct of Morris which give rise
o(\j
t~VPlaintiffs' claims
and the place they were each injured is the remote location ~e each was attacked.
o@;j)
While Plaintiffs firmly believe Texas substantive law afforqem viable assault/battery
claims; in the event it does not, clearly the most ~-~
si!'>~"nt contacts militate for the
-~
application of the law of the state where the att~Qfccurred. Each of those states has
strong criminal sanctions and fully viable tor~ to which authorize these claims; and,
justice requires the application of that tor~which affords to Plaintiffs the fairest and
fullest opportunity to be made whole. ~
However, in Vanderbilt J. & Fin., Inc. v. Posey, 146 S.W.3d 302, 313 (Tex.
App.-Texarkana 2004, no pe~e court noted that before a conflict of laws analysis
commences:
25 S.W.3d 900, 903 n. 2 (Tex.App.-Houston [1st Dist.]
2000, pet. dism'd by agr.); see Duncan, 665 S.W.2d at 419-21. There are no
conflicts if there are no differences between the laws of the respective states
concerning the issues relevant to the case. See Duncan, 665 S.W.2d at 419-
21; Vandeventer, 101 S.W.3d at 711-12; Young Ref. Corp. v. Pennzoil Co.,
46 S.W.3d380, 385 (Tex.App.-Houston [1st Dist.] 2001, pet. denied); Saint
Paul Surplus Lines Ins. Co., 25 S.W.3d at 903 n. 2."
48
VanderbiltMortg. & Fin., Inc. v. Posey, 146 S.W.3d at 313. Further, in a conflicts analysis,
it may be determined that "Texas la\v may apply to some claims, but not other claims. See,
e.g., Snyder Gen. Corp. v. Great Am. Ins. Co., 928 F. Supp. 674, 678 (N.D.Tex.1996),"
Scottsdale Ins. Co. v. Nat'l Emergency Services, Inc., 175 S.W.3d 284, 291 (Tex. App.-
Houston [1st Dist.] 2004, reh'g overruled, rev. denied). Therefore,
Jaws rules, having established the instant claims under Texas l~Q
*
u``ch choice of
is necessary to
"P.":K:J
consider the assault/battery law of each state where the attack~emTed,
e. The assault/battery laws of relevant states p~ the instant claims.
Once again, Plaintiffs vigorously maintain that~ have viable intentional tort
claims against Defendants based upon the forego~ t& lysis of Texas assault/battery tort
Jaw. But, if for some reason they don't, a fai~lication of Texas choice of laws rules
mandates that they be able to assert via~t claims pursuant to the law of the state
II~-Superseding Indictment, attached hereto as
where each sexual attack occurred.
Exhibit A, the United States Att`` Office and the grand jury of the Houston Division
of the Southern District of ~s have made clear that taking nude photographs of a
person without that pers-~mowledge and/or consent is "Improper Photography" in
i!J}!a
violation of Texas Penrijflode § 21.15, and "Sexual Abuse in the First Degree", in violation
~
of New York Pen~w § 130.65. Further, the transportation of a person from Texas to
New York for~ purpose is a violation of Title 18, United States Code, Sec. 2421. (See
Indictm``ount 1).
Further, unconsented sexual activity with another person is also "Sexual Abuse in
the First Degree", in violation of New York Penal Law§ 130.65; and, the transportation of
a person from Texas to New York to attempt such is a violation of Title 18, United States
Code, Section 2421. (See Indictment, Counts 2 and 3).
49
Further, unconsented sexual activity with another person in "Indecent Assault" in
violation of Pennsylvania Consolidated Statutes § 3126; and, the transportation of a
person from Texas to Pennsylvania to attempt such is a violation of Title 18, United States
Code, Section 2421. (See Indictment, Count 4).
Finally, unconsented sexual activity with another person
Privacy", in violation of New Jersey Statutes Annotated 2C:``
* i``"Invasion
(b); and, the
of
o(Qj
transportation of a person from Texas to New Jersey to attempt~ is a violation of Title
orf'@
18, United States Code, Section 2421. (See Indictment, Co~.
A closer examination of those various state cri~tatutes, as well as analogous
ones from Louisiana, Illinois and Massachuset`` the case law interpreting and
applying such will fully demonstrate that ~ single one of these acts, of which
Defendant Morris is most certainly guil~(~ felonies and very serious offenses. And,
~of these states, in federal law or in the law of
there is not one shred of authOl'ity in
Texas which supports the asto;~4~ proposition, which Defendants persist in glibly
asserting, that the consequen~ such should be nullified and set aside merely because
the Defendants choose t``racterize them as incidences of mere workplace sexual
~1<1
harassment. Indeed~Y incomprehensible that the Texas Legislature, in passing the
TCHRA, part,l``bor Code, ever in its ·wildest imagination envisioned that a statue
designed sole~w make workplace discrimination law in Texas unifm·m and compatible
with the~al Title VII would be asserted to prevent criminal convictions for heinous
sexual offenses or to thwart valid tort claims for depraved, intentional sexual
depredations. To the contrary, such a notion shocks the conscience and offends every
reasonable notion of decency, respect for women and human dignity. Moreover, criminal
50
law aside, the civil tmt law of each state where an attack took place authorizes the very
assault/battery claims here asserted, just as Texas law does.
Plaintiff Michelle Barnett claims that Morris intentionally drugged her while she
was in New Orleans, Louisiana; and, after she was rendered unconscious*tripped off
her clothing without her knowledge or consent. (This is what she ex`` knows; God
only knows what else happened, which she cannot remember a``ich she can only
o(\J
imagine. But, for purposes of this claim, the law is conse``ly examined only in
0~
relation to what she actually knows). In Louisiana, "batte1``efined as "the intentional
use of force or violence upon the person of another; %,~intentional administration of
'~
a poison or other noxious liquid or substance t``er." La, Rev. Stat. Alm. § 14:33.
Simple battery is a batte1y con1mitted witho~e consent of the victim, La. Rev. Stat.
Ann. § 14:35; this carries a penalty o(~ousand dollar fine and/or six months'
imprisonment. In State v. Chehard~o12-1337 (La. App. 3 Cir. 5/1/13), 2013 WL
1809891, _ So.3d _,the cou``~d that: "The offense of aggravated battery requires
'physical contact whetherinj~s or merely offensive.' State v. Dauzat, 392 So. 2d 393,
396 (La.1980)." And, in ~v. Schenck, 513 So. 2d 1159, 1165 (La. 1987), the Louisiana
rFQ;
Supreme Court he1,'fu~t: "An essential element of battery is 'physical contact whether
injurious or~111~%ffensive', and it may be committed by touching another through
clothing. [Ci ~Dauzet).'' Indeed, in Redmon v. Bi-Lo Supermarket, 2002-888 (La. App.
"'=!
3 Cir. 2(;g;~1), 846 So. 2d 820, 823, the court affirmed that even "spitting on another is
wrong and is an actionable battery even though there is no real physical damage."
Therefore, it would appear axiomatic that drugging a person with a substance powerful
enough to induce deep unconsciousness is manifestly ''noxious"; and, that forcefully
stripping the clothes off an unconscious person is battery. Even if a battery attempted is
51
uncompleted, Louisiana has determined that: "Assault is an attempt to commit a battery,
or the intentional placing of another in reasonable apprehension of receiving a battery."
La. Rev. Stat. Ann. § 14:36. And, respectfully, it is difficult to imagine either such charge
being dismissed by a Louisiana court because the defendant said, Oh no, I was just
sexually harassing her. ~i!J!:
In Griffith v. Young, 46,184 (La. App, 2 Cir. 4/13/11), 62 s;SlQ 856, 859, reh'g
denied (May 12, 2011), the court made clear that: "Under La, ``rt. 2315, a person is
~ of battery is a harmful
liable for acts which cause damage to another. The intentio``;V~;t
or offensive contact with a person, resulting from an act ~nded to cause the plaintiff to
~
suffer such a contact. Touchet v. Hampton, 2oo8-a~· App. 3d Cir.12/n/o8), 1 So. 3d
729, wr•it denied, 2009-0076 (La.3j27 jog), 5 ``d:'i41." The court further noted thatto
prevail, the plaintiff need only show that ~'s prima facie elements have been met
and that there was an absence of conser&i, at 859. That means, according to Goldman
v. Doe, 12-531 (La. App. 5 Cir. 3/2Z~ 113 So. 3d 376, 383, that: "It is not necessary for
the act to intend to inflict ac``mage, rather, it is 'sufficient if the actor intends to
inflict either a harmful or o~ive contact without the other's consent.'" Mattingly, 720
So. 2d at 1230 (citing ~e, 512 So. 2d at 391)." Thus, drugging a woman unconscious
and while she is ``ipping off her clothes meets the elements for the assertion of a
~
claim for inten~l battery; and Ms. Barnett should be entitled to do so. And, since Ms.
g
Barnett fil~it within one-year of her assault, her claim is timely. See Chaver·ri v. Dole
Food Co., Inc., 896 F. Supp. 2d556, 567 (E. D. La. 2012) affd, 12-31026, 2013 WL 5274446
(5th Cir. Sept. 19, 2013)("Louisiana Civil Code article 3492 provides a one-year liberative
prescription period for delictual actions. La. Civ. Code art. 3492. Prescription begins to
52
run from the day the plaintiffs injury is sustained. Id."); see also Elzy v. Roberson, 868
F.2d 793, 794 (5th Cir.1989); Jacobsen v. Osborne, 133 F.3d 315, 319 (5th Cir. 1998).
Plaintiff Keri Hill asserts that she was drugged and sexually assaulted by Morris in
New York and Illinois. As noted, supra, such conduct clearly violates New York law and
*
gives rise to a well-recognized claim for assault/battery; and, the law ``ois is no less
claim~Qt out in the Third
forgiving. Therefore, she clearly states viable assault/battery
Amended Petition on file herein. Regarding New York, Penal~ 130.00(3) provides
oci@
that: " 'Sexual contact' means any touching of the sexu~other intimate parts of a
person for the purpose of gratifying sexual desire of eit~arty. It includes the touching
of the actor by the victim ... ".§ 130.00(6) states:``tally incapacitated' means that a
person is rendered temporarily incapable of ~ising or controlling his conduct owing
to the influence of a narcotic or intoxica~ubstance administered to him without his
consent, or to any other act committec&on him without his consent." N.Y. Penal Law§
130.00 (McKinney). Indeed, e``pposing for a moment that Ms. Hill voluntarily
rendered herself unconsciou`` her own drinking, (which she most certainly did not),
in People v. Bjork, 105 A<~ 1258, 1260, 963 N.Y.S.2d 472, 476 (N.Y. App. Div. 2013)
rg~
leave to appeal den~UN.Y.gd 1040 (2013), the court firmly ruled that:
We reject~ndant's contention that the People did not meet their burden
to pro ~\lt}he victim was physically helpless. For purposes of defendant's
convi ns for sexual abuse in the first degree ... a person is physically
h s when he or she 'is unconscious or for any other reason is physically
u a. e to communicate unwillingness to an act' (Penal Law § 130.00[7];
see ... 130.65[2] ). A person who is asleep or unable to communicate as a
result of voluntary intoxication is considered to be physically helpless (see
People v. Morrow, 304 A.D.2d 1040, 1042, 758 N.Y.S.2d 215 [2003], lv.
denied 100 N.Y.2d 564, 763 N.Y.S.2d 821, 795 N.E.2d 47 [2003]; People v.
Himmel, 252 A.D.2d 273, 275-276, 686 N.Y.S.2d 504 [1999], lv. denied 93
N.Y.2d 899, 689 N.Y.S.2d 711,711 N.E.2d 987 [1999] )."
Bjork, at 1260.
53
Further, Penal Law § 130.65 prohibits "Sexual Abuse in the First Degree", in
relevant part, as: "A person is guilty of sexual abuse in the first degree when he or she
subjects another person to sexual contact: 2. When the other person is incapable of
consent by reason of being physically helpless... " N.Y. Penal Law§ 130.6~cKinney).
Pursuant to Penal Law §70.02(c), such offense is a Class D felony, for~ Penal Law§
70.80 4(a)(iii) mandates a prison term of not less than two, nor ``an seven years.
oCS'J
Thus, New York treats actions such as those of Defendant M~ very seriously; and,
o0
careful research reveals no excuse, under the New York~ Code, for such conduct,
-·~
based upon an asserted defense that such conduct m~ constitutes workplace sexual
ol~t of such depredations.
harassment. And, its relevant civil law is no less t~
In Stanley v. Amalithone Realty, Inc.,~isc. 3d 995, 1006, 921 N.Y.S.2d 491,
501 (N.Y. Sup. Ct. 2011) appeal dismisse6A.D.3d 140, 940 N.Y.S.2d 65 (N.Y. App.
Div. 2012) leave to appeal denied, 20~d 857, 983 N.E.2d 771 (2013), the court held:
"Assault is defined as an intenti``empt or threat to do injury or commit a battery.
To sustain a cause of action to ~'er damages for assault, there must be proof of physical
conduct placing the plain* imminent apprehension of harmful contact (see Holtz v.
i?"g
Wildenstein & Co., ~JA.D.2d 336, 693 N.Y.S.2d 516 [1st Dept. 1999] ). A battery is
intentional an``! physical contact with a person without his or her consent (see
id.; see also P~lil"v. State, 192 Misc. 587,79 N.Y.S.2d 466 [N.Y.Ct.Cl.1948] affd, 277 Ohio App.
Div. 101$.Y.S.2d 1019 (1950); Clayton v. Keeler, 18 Misc. 488, 42 N.Y.S. 1051 [Sup.
Ct., N.Y. County 1896] )."Id., 1006. In Oteri v. Viii. ofPelham, 100 A.D.3d 725,726,954
N.Y.S.2d 171, 172 (N.Y. App. Div. 2012), the court affirmed that: " '[O]nce intentional
offensive conduct has been established, the actor is liable for assault and not negligence'
(Panzella v. Burns, 169 A.D.2d 824, 825, 565 N.Y.S.2d 194; see Thomas v. Fayee, 302
54
A.D.2d 451, 452, 756 N.Y.S.2d 584; W1•ase v. Bosco, 271 A.D.2d 440, 706 N.Y.S.2d 434;
Barraza v. Sambade, 212 A.D.2d 655, 622 N.Y.S.2d 964; see also Ciminello v. Sullivan,
65 A.D.3d 1002, 885 N.Y.S.2d 118)." I d., at 726. Then, in Holland v. City ofPoughkeepsie,
90 A.D.3d 841, 846, 935 N.Y.S.2d 583, 590 (N.Y. App. Div. 2011), the court confirmed
that: " 'To recover damages for battery, a plaintiff must prove
contact, that the contact was offensive, i.e., wrongful under all of
*
tha~e was bodily
t~cumstances, and
o{j
intent to make the contact without the plaintiffs consent' ~ins v. Hamilton, 18
A.D.3d 436, 436, 794 N.Y.S.2d 421)." Id., at 846. Q·~
Thus, the facts of Morris' attack of Ms. Hill in N~rk clearly give rise to a viable
.~
assault/battery claim under applicable New York ~w. Moreover, as she was assaulted
in January, 2012 and her Original Petition '``led in November, 2012, she properly,
timely asserted such claim 1Nithin the oner6limitation period provided by New York's
N.~.P.L.R. 215 (McKinney), which states: "The
applicable statute of limitations,
following actions shall be comr:`` ·within one year: 3· an action to recover damages
See~Yong Wen Mo v. Gee Ming Chan, 17 A.D.3d 356, 358,
for assault, battery... " Id.
792 N.Y.S.2d 589, 590 (N,~pp. Div. 2005)("The Supreme Court correctly determined
0~
that the causes of acti~lleging assault and battery are governed by the one-year statute
~
ofli.mitations ... (s~LR 215[3]; Matter ofPlaza v. Estate of Wisser, 211 A.D.2d 111, 118,
~-
626 N.Y.S.2~).").
~ing her violation by Morris in illinois, pursuant to that state's relevant
criminal statute, 720 ILCS 5/12-3, § 12-3, "Battery" is defined as follows: "(a) A person
commits battery if he or she knowingly without legal justification by any means (1) causes
bodily harm to an individual or (2) makes physical contact of an insulting or provoking
nature with an individual." See also U.S. ex l'el. Leyva v. Walls, 230 F. Supp. 2d 847, 855
55
(N.D. Ill. 2002)("Under Illinois law, '[a] person commits battery if he intentionally or
knowingly without legal justification and by any means, (1) causes bodily harm to an
individual or (2) makes physical contact of an insulting or provoking nature with an
individual.' 720 ILCS s/12-3(a)."). Such an offense is a Class A misdeme~. 720 ILCS
5/2-11, § 2-11 defines a "misdemeanor" as "any offense for which a se`` to a term of
imprisonment in other than a penitentiary for less than one year ~qe imposed." 720
¢~
ILCS 5/2-11. ~
oc?@
In People v. Grieco, 44 Ill. 2d 407, 410, 255 N.E.2~, 899 (1970), the Illinois
Supreme Court ruled that: "The term 'battery' i~e of common usage and
-~
understanding, and the statute itself sets forth ``ents necessary to constitute the
offense intended to be punished, viz., causing~ly harm to an individual, intentionally
and knowingly without legal justification.'~at 899. Further, in People v. Smith, 19 Ill.
~ App. Ct. 1974), the court noted that: "Blows...
App. 3d 704, 707, 312 N.E.2d 355, 357
are not necessary to the commis~ the offense of battety. Battety may be committed
by any physical contact of anil~ng, provoking nature. lll. Rev. Stat, 1969, ch. 38, para.
12-3(a)(2)." Id., at 357· ~
rFg
With regard ~"ciJilliability for Morris' attack of Ms. Hill in Illinois, in Curtis v.
Jaskey, 326 TIL ``d 90, 931 759 N.E.2d 962, 964 (Ill. App. Ct. 2001), the court held
that: "A batte~s been defined as the unauthorized touching of the person of another.
Gaskin
~
~ldwasser, 166 Ill.App.3d 996, 1011-12, 117 Ill. Dec. 734, 520 N.E.2d 1085
(1988)." I d., at 964; and, in McNeil v. Carter, 318 Ill. App. 3d 939, 944, 742 N.E.2d 1277,
1281 (Ill. App. Ct. 2001), the court held that: "A claim of assault must include an allegation
of a reasonable apprehension of an imminent battery. Rosenbe1'g v. Packerland Packing
Co., 55 Ill.App.3d 959, 13 IlL Dec. 208, 370 N.E.2d 1235 (1977). The elements of a battery
56
must include an intentional act on the part of the defendants and a resulting offensive
contact with the plaintiffs person. McNeil v. Brewer, 304 Ill.App.3d 1050, 238 Ill. Dec.
183, 710 N.E.2d 1285 (1999)." Id., at 944·
Further, in Flores v. Santiago, 2013 IL App (1st) 122454, 986 N.E~ 1216, 1219-
20, in an opinion particularly enlightening in light of relatively analog~cts, the court
stated that: ~U
ol!;};
"Generally, battery is committed by an individual if: ' "(~acts intending
to cause a harmful or offensive contact with the pe~ of the other or a
third person, or an imminent apprehension of su~ contact, and (b) a
harmful contact with the person of the other dire~&· indirectly results."'
Bakes v. St.Alexius Medical Center, 2011 IL~t) 101646, '1122, 352 Ill.
Dec. 902, 955 N.E.2d 78 (quoting Restate~ (Second) of Torts § 13
(1965)). Illinois courts have stated that ba~_Ahay be defined as the wilful
touching of the person of another or a succ~ul attempt to commit violence
on the person of another. Bakes, 20~1 I · p (1st) 101646, ~!22, 352 Ill. Dec.
902,955 N.E.2d 78 (and cases cite - ' ·-in). We have also defined battery
as involvin~ defendant performinliS~. e affirmatiye act intende~ to cause
an unpermitted contact. I d. ' "['FlH1irgist of the actiOn for battery IS not the
hostile intent of the defendan@l'lt rather the absence of consent to the
contact on the part of thelc'ntiff." ' Country Mutual Insurance Co. v.
Olsak, 391 Ill.App.3d 29{i,~330 Ill. Dec. 433, 908 N.E.2d 1091 (2009)
(quoting Cowan v. Ins`` • Co. ofNorth America, 22 Ill.App.3d 883,890,
318 N.E.2d 315 (1974)Q
Plaintiff argues ``ny consent was vitiated in this case because the
defendant alleYl~Illied her with illegal drugs on almost every occasion of
sexual cont cYefendant does not deny that severe intoxication may
render a per unable to consent to sexual contact. See People v. Vaughn,
2011 ILA o, st) 092834, '1137, 356 Ill. Dec. 498, 961 N.E.2d 887; see also
Doe v. psi/on International, 2011 ILApp (1st) 110306, '114, 357 Ill. Dec.
374, ~ .E.2d 327 ...
I~ law recognizes that episodes of nonconsensual sex may occur within
a generally consensual relationship, even if they are difficult to prove. See
People v. M.D., 231 TII.App.3d 176, 192, 172 Ill. Dec. 341, 595 N.E.2d 702
(1992)."
Flores, at 1219-20.
57
Thus, it appears crystal clear that Ms. Hill states a viable claim for assaultfbattety
pursuant to illinois law. Moreover, given its particular nature, it is timely asserted
pursuant to Illinois' applicable limitations period, per Williams v. Ali, 145 Ill. App. 3d
458, 460, 495 N.E.2d 1052, 1053 (Ill. App. Ct. 1986), in which the court held:
Section13-202 of the Illinois Code of Civil Procedure states in ``t:
'Actions for damages for an injmy to the person, or for falseku-Ysonment,
or malicious prosecution, or statutory penalty, or for ~'t:tion, or for
seduction, or for criminal conversation, shall be co~ed within two
years next after the cause of action accrued·• * *.' (Il!.~Lat.1981, ch. 110,
par. 13-202.) Q
It has long been a tenet of Illinois law that a ci*tion for sexual assault
falls within this two-year limitation period. (Tli?iiftas v. Mm·gan (1901), 96
Ill. App. 629 ... " tt;;J?f;;
~
Williams, at 1053. See also Akins-Brakefield t``ilip Envtl. Services Corp., 08-CV-710-
,~
DRH, 2010 WL 1032632 (S.D. Ill. Mar. 1~0)("[U]nder Illinois law, causes of action
for assault, battery and negligent supe`` are subject to a two-year limitations period.
See Hollander v. Brawn, 457 ``88, 692 (7th Cir.2oo6) (stating that assault and
battery claims are considere~sonal injmy actions and applying two-year statute of
limitation set forth in T~. Comp. Stat.. 5/13-202); see also Williams v. Ali, 145
~495 N.E.2d 1052, 1053 (Il!.App.Ct.1986) (applying same
~
for civil claimJ{``l assault) ...").
More~ the Illinois Supreme Court, in Jones v. Jones, 71 Ill. 562, 566 (1874),
stated t``f appellant was guilty [of assault/battety], he was bound, at all events, for
an amount of damages that would compensate appellee for the injury sustained, and if
the acts on the part of appellant were wanton and wilful, the juty, according to well and
uniformly recognized rules, had the right to give punitive damages .. .'' Id., at 566.
Consequently, Ms. Hill states a viable claim for assault/battery under applicable Illinois
58
law; which has been timely submitted and for which the full measure of her actual and
exemplary damages may be recovered.
Finally, Plaintiff Stacy Stewart asserts that on a March, 2011 trip to Boston,
Massachusetts with Morris, he drugged her into unconsciousness and w~ she was so
compromised, he attempted to sexually assault her and to forcefully re~ her clothing.
Pursuant to that state's criminal law, in Com. v. Ebm·hart, 461 Mass~C'J. 818, 965 N.E.2d
o!QJ
791, 798 (2012), the court held that: "The statutory crime of a~t and battery, G.L. c.
0~
265, § 13A, encompasses three common-law crimes: har``battery, recldess battety,
~
and offensive battery. Commonwealth v. Burke, 390°``s. 480, 482, 457 N.E.2d 622
(1983); Commonwealth v. Boyd, 73 (';t``194-195, 897 N.E.2d 71 (2008) ...
Mass.App·-~-,
Offensive battety occurs when 'the def:~t, without justification or excuse,
intentionally touched the victim, and ... ~uching, however slight, occurred without
the victim's consent.' Commonwealth ~;rtnett, 72 Mass.App.Ct. 467, 476, 892 N.E.2d
805 (2008). 'The affront to the~··s personal integrity is what makes the touching
offensive.' Commonwealth v. ~)~,supra at 483, 457 N.E.2d 622." Id., at 798. See also
United States v. Sumrall, 'AF.3d 42, 43, n.1 (1st Cir. 2012) cert. denied, 133 S. Ct. 894,
©~
184 L. Ed. 2d 694 c~U013)("In all events, the Massachusetts Supreme Judicial Court
has noted that '{~sive battery is a form ofintentional battery.' Eberhart, 965 N.E.2d
at 798 n. 13; #so id. at 798 (characterizing offensive batte1y as an intentional touching
without ~ctim's consent that is an 'affront to the victim's personal integrity').''),
Further, in Com. v. Marzilli, 457 Mass. 64, 67, 927 N.E.2d 993, 996 (2010), the
court noted that:
"An indecent assault and battery is 'an intentional, unprivileged and
indecent touching of the victim.' Commonwealth v. Mosby, 30
Mass.App.Ct. 181, 184, 567 N.E.2d 939 (1991), quoting Commonwealth v.
59
Perretti, 20 Mass.App.Ct. 36, 43-44, 477 N.E.2d 1061 (1985). Thus, to
prove the intent element, the Commonwealth must prove that the
defendant intended-had a conscious purpose, see Commonwealth v.
Gunter, 427 Mass. 259, 268-269, 692 N.E.2d 515 (1998)-to commit an
indecent Ol' offensive touching of the complainant without her consent. See
Commonwealth v. Burke, supm at 482-484, 457 N.E.2d 622 ...
General Laws c. 274, § 6, criminalizes an 'attempt' to commit ~me,'
without limiting its application (insofar as is relevant here~t ~icular
substantive crimes. While a defendant may not be prosecuted n r G.L. c.
265, § 13H, for indecent assault without a completed battery dian, supra,
the fortuity that the defendant failed in his attempt to comm~ a crime does
not absolve him from responsibility for it. An attempt``decent assault
and battery under§ 13H, may serve as a predicate offen~inder G.L. c. 274,
§6: ~
Marzilli, at 996.Regarding civil liability, Mass. Gen.o``s Alm. ch. 260, § 4 (West),
provides that an action arising from assault and b``ust be commenced within three
years; thus, Ms. Stewart asserts a timely claim~
Therefore, even assuming m·guend`` Texas substantive law does not provide a
~iffs assault/battery claim, (which is not the
viable basis for the assertion of each
case), the laws of the states w``ch attack occmred certainly does. However, no
matter what state's law appl~ the claims herein asserted, the TCHRA is not the
controlling law in this cas~stead, the Plaintiffs' claims are predicated upon vicious
©!"
intentional sexual ass,1l:s and not in any way whatsoever upon legitimate notions of
~
workplace dis~¥``ion, which is all that statute addresses. The Defendants' strained
reading of t~CHRA for the sole purpose of imposing its short limitation period is
manifest``ust and factually and legally insupportable. The Supreme Court's decision
in WafJle House explicitly preserves claims predicated upon assault/battery. Plaintiffs
have stated and viably supported just such claims and they are entitled to their day in
court on all legal and evidentiary matters asserted.
f. Neithel' the TCHRA nol' Wqffle House controls this case.
60
In the face of the controlling Texas substantive law clearly supporting the
assault/battery claims of Plaintiffs, discussed supra, Defendants attempt to run for cover
under the TCHRA. They have repeatedly contended that the sole claim available to each
Plaintiff is under that Act; but, a careful reading of such will quic~*reveal how
insupportable such a contention is. The TCHRA is found in Chapter 21 ~Texas Labor
Code; and, indeed, its very placement there denotes the Legislat~f intention that it
·~
apply to workplace situations, not non-\vork related intentio~orts. In keeping with
or!@
such,§ 21.051 of that chapter addresses worlcplace dis~ination and provides, in
~
relevant part: o:f[p
..if;;
"An employer commits an unlawful emplo~'rlt practice if because of race,
color, disability, religion, sex, national orl$~ or age the employer:
•'§fJ!
(1) fails or refuses to hire an in~··
·~1, discharges an individual, or
discriminates in any othe nner against an individual in
connection with compe~a1 on Ol' the terms, conditions, or
privileges of emp1oymen~1
(2) limits, segregates.e,``assifies
an employee or applicant for
employment in a m~'¥r that would deprive or tend to deprive an
individual of any e~'Yment opportunity or adversely affect in any
other manner t``atus of an employee."
Tex. Labor Code Ann6~.Cl51 (Vemon). Basically, as a matter of both legislative intent
and the very wm·n~ the Legislature employed in the statute, both this sub-section
oi?P'
specifically ``apter 21 generally were designed to apply the anti-discrimination
tenants ``~l\1ederal Title VII to Texas workplaces. (See Tex. Labor Code§ 21.001). But,
it is critlcitf to note that Chapter 21 applies to actions in the workplace which implicate
the conditions of employment. In Nagel Mfg. & Supply Co. v. Ulloa, 812 S.W.2d 78, 80
(Tex.App.-Austin 1991, writ denied), the CCA explained:
"Sexual harassment, as the court defined it for the jury, 'means to engage in
unwelcome sexual advances, requests for sexual favors, sexually abusive or
61
vulgar language, or other verbal, visual or physical conduct,' if
compliance is made a condition of employment or used as a
basis for an employment decision OJ' if such conduct interferes
with work pe1:formance OJ' creates an intimidating, hostile or
offensive working environment. (Emphasis added)."
Ulloa, at So. See also Wal-Mart Stores, Inc. v. Itz, 21 S.W.3d 456, 470 (T~pp.- Austin
2000, reh'g overruled, rev. denied)("Under Title VII and the Texas Hu``ghtsAct, an
employer may be held vicariously liable for quid-pro-quo sexu~Yarassment by its
0~
supervisor. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 7~753 (1998); Ewald v.
0 @@"
Warnick Family Foods Corp., 878 S.W.2d 653, 659 (Tex.~Corpus Christi 1994, writ
~
denied). The elements of the cause of action are as fo``: (1) A supervisor (2) because
of sex (3) subjects an employee to (4) unwelcome ~ct that (5) affects a tangible aspect
of the employment relationship. See Ellerth, s~'tl.s. at 752-54; Mel'itor· Sav. Bank, FSB
v. Vinson, 477 U.S. 57, 64-67 (1986); Ew~78 S.W.2d at 659. An employer's liability
in such cases derives from the law of a~c; Because discriminatory conduct ordinarily
lies outside the agent's scope of a~J'~ty, for a principal to be held liable it must be shown
that the agency relationship a~ the supervisor in committing the discriminatory act.
See Burlington Indus., 5 ~S. at 759-60."). Absolutely none of the claims Plaintiffs
~
herein assert has a~Yg whatever to do with employment decisions or conditions of
employment. T``have exclusively to do vl'ith corifessed p1•e-meditated,
intentional#al assaults committed well outside the workplace, in fact in remote
states. ``
In that regard, a close reading of the Texas Supreme Court's decision in Waffle
House, Inc. v. Williams, 313 S.W.3d 796, 802 (Tex. 2010), in terms of the Defendants'
contention of the limits it allegedly imposes upon workplace sexual harassment claims,
immediately demonstrates just how off-base tl1eir reliance upon and interpretation of it
62
is in their instant Plea, just as it was in their previously denied MSJ. They completely
ignore the critical, relevant p01tion of the opinion which leaves intact the very claims
Plaintiffs herein assert:
"The issue before us is not whether Williams has a c~se of
action for batte1y against Davis, her coworker. Althou fnvial,
everyday physical contacts do not necessarily result in a batte~ ensive
contacts, or those which are contrary to all good manners,~d not be
tolerated.' Hence, '[t]aking indecent libe1•ties with~·erson is of
course a battmy.' Neither side questions thejur . nding that
Davis assaulted Williams. ~
o@@
The issue before us, however, is not wheqwilliams has a
viable tm·t claim against a coworker.• fl£issue is whethe1• a
common-law negligence action should li' CJ ainst her employer
fm• allowing the coworker's tortious.. criminal conduct to
occm•, 01' whether, instead, u stututQJ.'fk'1Jkgime comprehensively
addressing employer-employee relatiiJns in this context should
exclusively gove1•n. We have recog~ generally that employers 'have
a duty to use ordinary care in provid~"'safe work place.' However, Texas
comts have also held that the ex~"'e statutory workers' compensation
scheme sometimes provides the r!wledy against an employer for the assault
on or sexual harassment of an e~1oyee. Today's question is whether
employer liabilityfor1i!nnted se;\:ual touching by a cowm•km•
(simple assault un ' 'exas law given its 'offensive m·
p1•ovocative' nutuJ•e`` mited to a tailored TCHRA scheme that
specifically covm·s '4riPloyer liabilityfm• sexual hamssment. We
think the answer sh&uld be yes. (Internal citations omitted; emphasis
added)." W
©!"
Waffle House, Inc.``Iiams, at 802-03. See also Rodriguez v. Boe1jan, 399 S.W.3d
223, 230 (Tex.A~San Antonio 2012, mle 53.7(f) motion filed Oct. 15, 2012)("[A]
person com~vil assault if he intentionally or knowingly causes offensive physical
contact ``nother. See Waffle House, Inc. v. Williams, 313 S.W.3d 796, 801 n. 4
(Tex.2o10) (citing Umana v. Kroger Tex., L.P., 239 S.W.3d 434, 436 (Tex.App.-Dallas
2007, no pet.); Johnson v. Davis, 178 S.W.3d 230, 240 (Tex.App.-Houston [14th Dist.]
2005, pet. denied).''); and, Rollerson v. City of Freeport, Tex., CIV.A. H-12-1790, 2013
WL 2189892, *9 (S.D. Tex. May 16, 2013)("The elements of assault are the same in a
63
criminal or civil matter. To establish a claim for assault, a plaintiff must show that the
defendant (1) intentionally, knowingly, or recklessly caused him bodily injury, (2)
intentionally or knowingly threatened him with imminent bodily injury, or (3)
intentionally or lmowingly caused physical contact with him when the def~nt knew or
should have reasonably believed that he would regard the conta~ri offensive or
provocative. Cox v. Waste Management of Texas, Inc., 300 S.W.3~24,
0 439 (Tex.App.-
o~
Fort Wm'th 2009), citing Tex. Penal Code Ann. § 22.01 (Vern-313 S.W.3d 796, 802-03 & nn. 15 a~ (Tex.201o), citing W. Page Keeton, et
al., Prosser and Keeton on the Law ojTo1``(5th ed.1984)."),
Also, because Title Vll and the T~ are designed to achieve identical purposes,
federal court decisions "11-ith reg``~the former are instructive as to claims under the
latter. See Pmil'ie View A & ~Iiv. v. Chatha, 381 S.W.sd 500, 504 (Tex. 2012), reh'g
denied (Nov, 16, 2012)`` TCHRA was 'enacted to address the specific evil of
discrimination and ~lilition in the workplace,' as well as to coordinate and conform
with federal anti-``mination and retaliation laws under Title Vli. See City of Waco v.
Lopez, 259 S.-#147, 153-55 (Tex.2oo8).").In Young v. Houston Lighting & Power Co.,
11 F. Sup~21, 932 (S.D. Tex. 1998)(Kent, J.), the court made clear that:
"Plaintiff asserts a claim of hostile environment sexual harassment under
Title Vll. For such a claim, Young must prove the following elements:
(1) she belongs to a protected group;
(2) she was subject to unwelcome sexual harassment,
64
(3) the harassment was based upon sex;
(4) the harassment affected a term, condition or privilege of
employment,
*
(5) the employer knew or should have known of the harassment in
question and failed to take prompt remedial action.
See Waltman v. International Paper Co., 875 F.2d 468, 477 Csth~989)."
Young, at 932. In the instant analysis, the intentional sexual
orcJ
~gt of each
Plaintiff had nothing to do ·with a "term, condition or privi~e~ employment",
Absent such, neither Title VII nor TCHRA have any a~ility thereto. The
Plaintiffs' claims rest upon intentional sexual assault1``e from the workplace.
The facts and focus in Waffle House are e~t distinguishable from the instant
analysis. There the Supreme Court made it ve``r that the core issue there was whether
an employer may be held negligent in per~g workplace sexual harassment, (Id., 798-
~
99); and, that: "A statutory remed@s not always the sole J'emedy, and the
.rw
TCHRA does notforeclose ~i.Wisault-based negligence claim arising .from
.~
independentfact'S um•eld~ to sexual hm•assment.(Emphasis added)." Id, at
799. 'The plaintiff, a waitrN®~as subjected to repeated incidences of sexual harassment
~"%
by a cook, Id. He r!Y against her breasts with his arm; he made offensive sexual
conmwnts with h~lfnds in his pants, blocked her exit from a storeroom and held her
arms down w#s body, Id. All of these events occurred in the kitchen area where the
two worl``ether and directly involved the conditions of employment. She complained
several times to her superiors and called a company hotline; but, no action was taken to
remedy the situation, Id.
These events, while obnoxious and offensive, are light years from the intentional
drugging of a woman in a remote state and while she was unconscious, sexually assaulting
55
her, trying to forcefully remove her clothing and photographing her naked. Moreover, the
sole question the Supreme Court considered in Waffle House was whether the employer
could be held liable for negligence; making it explicitly clear that the plaintiff's right to
assert a battery claim was a given and not the subject of the Court's consid~ionl (Jd., at
802). Moreover, in separating out the battery claim which was not b`` it, the Court
noted that: "We have recognized that the legislative creation of a
0~
s~Yory remedy is not
presumed to displace common-law remedies. To the contrary, a~ation of common-law
o@;j
claims is disfavored." Id., at 802. q
~
Waffle House also discussed two other Supremeo~rt decisions which are facially
/~
inelevant to the instant claims. The Court noted tl``~bty of Waco v. Lopez, 259 S.W.3d
147 (Tex. 2008), it held "that an employee cla~g he was terminated in retaliation for
complaining of age and race discrimil@lJ~ could not bring a claim under the
Whistleblower Act. [Tex. Govt. Code§ ~001-010]." Id,, at 807. Obviously, such a claim
is irrelevant here; And, in "HotJ-La Roche Inc. v. Zeltwange1', [144 S.W.3d 438
~on-law claim for intentional infliction of emotional
(Tex. 2004)] we held that a
distress was not availabl~ an employee complaining of sexual harassment by a
g~
supervisor." Id., at s~aat decision was limited to the unique aspects of that particular
tmt and the re!$t~cts of that case did not implicate the instant issues in any way.
There£`` respectfully, Defendants' Plea contention that Plaintiffs have
incorrec~erted common law claims of assault for alleged conduct that falls within the
scope of the TCHRA's exclusive remedy for workplace sexual harassment, (Plea, pgs. 2-3,
23), is flatly, absolutely wrong. Assault claims do not fall within the ambit of tlle TCHRA
and, they are not incidences of workplace sexual harassment. Therefore, Defendants'
reliance uponPruittv. Int'IAssn. ofFire Fighte1·s, 366 S.W.3d 740 (Tex.App.- Texarkana,
66
2012 no. pet.) is all the more inexplicable. There, the plaintiff was an African-American
municipal fire chief who alleged a conspiracy to deprive him of his job. Such obviously
discriminatory facts have absolutely nothing to do with the instant analysis; and, the
· authority the CCA cites in Pruitt "when a statute requires the exhaustion of administrative
remedies before a plaintiff may file suit," I d., at 743, is wholly ineleva``
Likewise, when Defendants claim that: "because the comm~Jl, claims brought
by all three plaintiffs (sic) are inextricably intertwined with clahp``at are required to be
brought under the TCHRA, which requites exhaustion of~1istrative remedies, the
claims asserted, in the fashion that they have been, are~empted", (Plea pgs. 20, 30);
respectfully, they are literally making up self-servi``s as they go along, devoid of the
offer of any supporting authority whatever. ``eir citation to Waffle Hause, for the
contention that: "If claims involving sexual#ment are pursued as common law torts,
the 'statutory procedures and lhnitatio&pplicable to such claims would be rendered
superfluous' ",(Plea, pgs. 23-24); is ~@.il.lly unavailing. First, the Plaintiffs' claims herein
~q"
have nothing to do with work``arassment; second, in the language they quote the
Supreme Court was referrind»the employer's liability, not the assault assailant's, As the
Court made clear in WWHouse, "The TCHRA contemplates discrimination affecting
the 'terms, conditi``r privileges of employment.' [Citing Labor Code§ 21.051(1)].'' Id.,
at 8os. It says 1~e single word about intentional, non-workplace confessed criminal
g
assaults! ~efendants' contention that: "An employer's liability for unwanted sexual
touching by another employee is limited to the tailored TCHRA scheme that specifically
covers employer liability for sexual harassment", citing to Waffle House, at 803," (Plea,
pg. 24), is equally unavailing.
67
In the first place, Plaintiffs claims for sexual assault are against Morris, not the
employer; second, Waffle House, at 802 explicitly preserved the Assault Victims' claims
of tortious battery. Morris wasn't "acting in his capacity as an employee," (Plea, pgs. 24-
25), he was acting as a deviant, sexual predator which had nothing to ~th his job
withA~le, objective
whatsoever! Indeed, if the Court steps back to view these claims
u~
common sense, Defendants' entire reliance upon characterizing al!~fie appalling facts
oCSJ
of these claims are mere wm·kplace discrimination c``ely evaporates and
Defendants' strategy is exposed as no more than a cruel dec~ould this Court properly
~
deny the Plea and assert its entirely appropriate juriS'~on over the Assault Victims'
claims, they are not being "allowed to unjustly sid#he standards and procedures set
by the TCHRA for sexual harassment claims,"~a, pgs. 30-31), they are being allowed
to hold a cowardly rapist accountable. (f
In that regard, the authority cite&;efendants in suppmt of denying the Assault
Victims their right to assert thei~s is singularly unavailing. In Hoffman-La Roche
~ 438, 448 (Tex. 2008), the Texas Supreme Court
..
Inc. v. Zeltwange1•, 144 S. v~
considered a clearly work``situation where a worker's supervisor repeated made off-
color jokes and rem~U her and after she complained, he retaliated in the workplace
by screaming at h~d otherwise belittling her. The Court determined that the plaintiff
there could nf,sert both a sexual harassment claim and an intentional infliction of
emotion``ress tort. As Defendants note, (Plea, pg. 31), the Court did say, "If the
gravamen of a plaintiffs complaint is the type of wrong that the statutory remedy was
meant to cover, a plaintiff ca1mot maintain an intentional infliction claim regardless of
whether he or she succeeds on, or even makes, a statutory claim." Id, at 448. But, they
miss the point of that quote entirely. The operative factor was the type of wrong a
68
"statutory remedy was meant to cover." Here, there is no such statutmy remedy
mandatorily applicable!
Similarly, every single decision Defendants' cite in purported support of the
applicability of Wqffle House is distinguishable from or inapposite to the ``nt analysis.
In Taylor v. Seton Healthcare, 2012 WL 13680 (W.D. Tex. 2012), 1;\,~aintiffs were
hospital employees who alleged hair pulls, smelling of hair, sh~Q. touches, hugs,
0~
brushing contact, a possible buttocks touching, touching of ~;ts, sexual innuendo
o2009 WL 424146, at *8 (S.D .N.Y.
Feb. 18, 2009), is distinguis~e because there the court's prima1y focus was the
enforcement of a broad aE~tion clause, which is of course not present in this case.
©!~
Likevl'ise, in Jones v. ~burton Co., 791 F. Supp. 2d 567,581 (S.D. Tex. 2011), the court
~
applied the Defen~ses Act, (DBA), which extends the LHWCA, 33 U.S. C. § 901, et seq
to injuries or ~s occurring on overseas milita1y bases. The plaintiff alleged she was
raped on``y a fellow contractor employee and the court determined that her remedy
was under the exclusive provisions of the Act. Once again, that simply has nothing to do
with the instant analysis, where the TCHRA does not apply. Finally, in City of Waco v.
Lopez, 259 S.W.3d 147, 149 (Tex. 2008), the Supreme Comt considered a claim by the
City's Chief Plumbing Inspector, who was transferred and demoted. The Court noted that
69
any claim he had was under the TCHRA and not the Texas Whistleblower Act.
Respectfully, so what? That factual scenario has absolutely no relevance whatever to the
instant analysis. Indeed, Defendants fail to cite one single case in which the TCHRA was
applied in facts such as those involved here. The reason for that is obvious: ~e are none!
Why do Defendants work so hard to bring Plaintiffs' claims u~the TCHRA?
Defendants make clear that these claims must fall within the TC~n order to argue
o(Q5
that they are time-barred. (Plea, pgs. 29-34). Under Civ. Prac. ~m. Code§ 16.003(a),
ocf@
the Plaintiffs each have two (2) years from date of injury~ing their assault/battery
~
claims. See Etan Indus., Inc. v. Lehmann, 359 S.W.3d ~ 623 (Tex. 2011), reh'g denied
u§
(Mar. 30, 2012)("The applicable [tort] statute of ~--tions runs for two years from the
day the cause of action accrues. Tex. Civ. Prac~em. Code § 16.003. Generally, a cause
of action accmes when a wrongful act cau~gal injury. Provident Life & Accident Ins.
Co. v. Knott, 128 S.W.3d 211, 221 (T``03). The date a cause of action accrues is
normally a question oflaw. I d.; !Jfflcorp. v. Emerald Oil & Gas Co., 348 S.W.3d 194,
202 (Tex.2on)."). See alsoSc~r v. Gulf Coast Reg'/ Blood Ctr., 10 F.3d 327, 331 (sth
Cir. 1994)("In Texas, caus$\)~ action for personal injuries are governed by a two-year
©~
statute of limitations, tkllich specifically provides in pertinent part that 'a person must
~
bring suit for .. ``q?al injury ... not later than two years afterthe day the cause of action
accrues.' TEX~.PRAC. & REM.CODEANN. §§ 16.oos(a) & (b)."); In reNeely, BR 04-
44898-``013 WL 3148676, *19 (S.D. Tex. June 19, 2013).
But, under the TCHRA, Plaintiffs arguable sexual harassment claims would be
time-barred unless brought within "the 18oth day after the date the alleged unlawful
employment practice occurred." Labor Code§ 21.202(a). Moreover, it has been held that:
"Under the TCHRA, a person claiming to be aggrieved by an unlawful employment
70
practice ... must file a complaint with the Texas Workforce Commission not later than the
18oth day after the date the alleged unlawful employment practice occurred. See Tex.
Labor Code § 21.202(a). This administrative step is required before the person may seek
relief in a civil action. Schroeder v. Tex. Iron Works, Inc., 813 S.W.2~3, 487-88
(Tex.1991) (concluding that 'exhaustion of administrative 1·emedie~ mandat01y
prerequisite to ffiing a civil action alleging violations of the [TCH~qverruled in part
~>
on other grounds by In re United Sm·vs.Auto.Ass'n, 307 S.W.3~9 (Tex.201o); see also
~IS2;
Waffle House, Inc. v. Williams, 313 S.W.3d 796, 804 (Te4) (citing Schr·oeder·, 813
S.W.2d at 487)." Dworschak v. Tr·ansocean Offsho~epwater Drilling, Inc., 352
S.W.3d 191, 199-200 (Tex.App.- Houston [14th Di~11, no pet.).
Within the facts of the Assault Victims' ~cularly poignant claims arising out of
uniquely egregious facts, the result of an~·oper application of the TCHRA (Labor
Code) limitation period would be si~arly pemicious. The Supreme Court has
m~sual of circumstances' is conduct so extreme and
admonished that: "Only 'in the
outrageous that it is removed`` the realm of ordinary employment disputes. GTE
Southwest[, Inc. v. Bruce]<~ S.W.2d [6os,]at 613 [Tex.1999]." Wal-Mart Stores, Inc.
o~
v. Canchola, 121 S.W.3~5, 741 (Tex. 2003); Dworschak, 352 S.W.3d at 198. However,
~ .
it is difficult to l~ conduct more extreme or outrageous that what Morris did to the
Plaintiffs. And\6~ectfully, to argue the application of a completely irrelevant statute for
the avow~pose of contorting the assaultjbatte1y claims into mere workplace sexual
harassment claims for the self-serving, sole purpose of extinguishing completely valid and
especially serious claims would be the height of injustice. Once again, the relegation of
the raping of drugged, insensate women to a mere employment grievance cannot possibly
be what the Legislature had in mind in enacting the TCHRA, which is emphasized by the
71
statute's very name: the Texas Commission on Human Rights Act! And, Defendants do
not, because they cannot, direct the Court to one single word in that statute, its legislative
history or any decision applying it, which mandates such a cruel and inhuman result.
In a substantial footnote, in Texas Mut. Ins. Co. v. Ruttiger, 381 S.~ 430, 461,
n.3 (Tex. 2012), reh'g denied (Sept. 21, 2012), the Supreme Court expre``ome serious
a``tjbattery claims
policy considerations which bear directly upon Plaintiffs' instant
and neatly concur with evety argument Plaintiffs herein make: ~
o35 S.W.3d 12, 16
(Tex.2ooo).A statute banishingEc . on law 1-ight' "will not be
extended beyond its plain me . g 01' applied to cases not
cleal'ly within its pw'View." 'Id . ting Satterfield v, Satte1:field, 448
S.W.2d 456, 459 (Tex.1969)).Ch.A rogation by implication is
disfavOJ•ed. Id. For• that rea~n, cou1•ts must examine whethm·
the statute's language 'i~cate[s] clearly or• plainly that the
Legislatw•e intended. ``{~lace' a common law claim with an
exclusive statutoJ•y r·~dy, and we 'decline [ ] to constl·ue
statutes to deprive ~ens of common-law 1>ights unless the
Legislature clem•ly~f!i\Pl'essed that intent.'3 I d.
_Q»
3 We have app].i,e§l)Jhis framework repeatedly. For example, in Lopez,
which the Cou~ites but then seems to forget about, we noted that
"[w]hether mgulatory scheme is an exclusive remedy depends on
whether.;'t~gislature intended for the regulatory process to be the
exclu~i ~a~ for remedying the problem to which the regulation is
addre?, . " City of Waco v. Lopez, 259 S.W.3d 147, 153 (Tex.2008)
(quo ·. In re Sw. Bell Tel. Co., 235 S.W.3d 619, 624-25 (Tex.2007))
(~ asis added). Likewise, in Waffle House, Inc. v. Williams, 313
S.W3d 796, 802 (Tex.2010), we held that 'the legislative creation of a
statutory remedy is not presumed to displace common-law remedies.
To the contrary, abrogation of common-law claims is disfavored.'
Acknowledging the centrality of legislative intent, see id. at 809 n. 66,
we looked at the statute's 'meticulous legislative design,' id. at 8os.
Similarly, we have held that 'absent clear legislative intent we have
declined to construe statutes to deprive citizens of common-law rights.'
Deale1•s Elec. Supply Co. v. Scoggins Constr. Co., 292 S.W.3d 6so, 66o
72
(Tex.2009) (emphasis added), We have also Wl'itten that 'statutes can
modify common law rules, but before we construe one to do so, we must
look carefully to be sure that was what the Legislature intended.'
Energy Ser·v. Co. of Bowie v. Superior Snubbing Servs., Inc., 236
S.W.3d 190, 194 (Tex.2007) (emphasis added); see also, e.g., Emps.
Ret. Sys. ofTex. v, Duenez, 288 S.W.3d 905, 919 (Tex.2009) (the proper
inquiry is legislative intent); Pruett v. Harris Cnty. Bail Bond B.~9
S.W.3d 447, 454 (Tex.2oo8) (same); Butnaru v. For·d Motor• ~ u4
S.W.3d 198, 208 (Tex.2002) (same). (Emphasis added)." ~!(@
'
R uttiger·, at 4 61, n.3. ~ 0
.``
And, in Perez v. Living Centers-Devc:on, Inc., 963 S.W.2~, 872 (Tex.App.- San
o@j
Antonio 1998, pet. denied), the court made clear tha~he TCHRA pPohibits
employment discr•imination on the basis of'J•a#olol', disability, Peligion,
sex, national ol'igin, OJ' ~
age.' Tex. Lab. Code~ _ 21.052 (Vernon 1996). The act
essentially codifiedfederal employme~Jf;!:,W.V· Compare 42 U.S.C. § 2000e (1994)
(prohibiting employment discrimination~e basis of race, color, religion, sex Ol'
national origin),§ 12101-213 (1994) (p~biting employment discl'imination on basis of
disability) and 29 U.S.C. §§ 621``994) (prohibiting employment discrimination on
basis of age), with Tex. Lab~e Ann. § 21.052 (Vernon 1996) (prohibiting same
conduct)." Id., at 872. Th``l Jackson v. Creditwatch, Inc., 84 S.W.3d 397, 402 (Tex.
©!"
App.-Fort Worth 2o&iilrev'd in part, (on unrelated grounds) 157 S.W.3d 814 (Tex.
2005), the CCA nl'that: "The Pe1•ez court examined the legislative histm·y
and legislatrfntent behind the enactment of the TCHRA and concluded:
''Notab~ithe1• an intent to se1•ve as an exclusive remedy, no1• an intent
to preclude common law causes of action, is contained within the stated
purposes ofthe TCHRA. Additionally, the statute contains no provision that
implies the TCHRA 's adminish·ative 1·eview system p1•ecludes a lawsuit for
common law causes of action. Instead, the opposite proposition can be
73
impliedfi•om section :u.211. (Emphasis added)." Id., at 402. Therefore, once again,
there is nothing in the TCHRA's "meticulous legislative design" which purports to justify
Defendants' tortured reading of it merely to argue insulation from liability from utterly
appalling misconduct; indeed the very argument of such is a slap in th~ce of every
mother, wife, sister and daughter in the State of Texas. ~rif§
The Assault Victims were not harassed or discriminated agai``eywere sexually
o\Q
violated, physically abused and emotionally humiliated. This~ is not about being
olf'@
patted on the fanny in a kitchen, as occurred in Waffle H~ or being made to suffer
annoying locker room humor directed disparagingly at~en, or not getting a raise or
promotion because of a gender-based glass :J
c~ _. Rather it is about the \1lest
degradation imaginable for which the law prnVliles significant criminal sanctions in
1::~
addition to ci~l liability. Morris and ~e must be made to answer, to take
~ally accountable in a court of law for their
responsibility, to be held legally and
reprehensible conduct. As the EloP~ CCA said so eloquently in the fearful days just
~
months before the Japanese a~ on Pearl Harbor plunged the nation into the darkness
and terror of world war: "I~ the pwpose of the law to provide a remedy for
g~
every legal WJ•ongfr:i)hd the desi1•e of the courts to see justice done and
``
litigants given Pc!Ji· day in com•t. It is too often the regret of the courts that
they ar•e p#•less to protect against the ovm•sight and omissions of
litigant~ thei1• counsel. When it may be done without doing violence to
established J•ules of law, then a sense ofjustice and duty compels it·.'' Payant
v. C01pus Christi Plaza Hotel Co., 149 S.W.2d 665, 667 (Tex. Civ. App.- El Paso 1941, writ
dism'djudgm't em·.). See also In re VarTec Telecom, Inc., 335 B.R. at 642, In conformity
with that noble mandate, the Assault Victims most earnestly request this Court to allow
74
them to seek true and fair justice in the resolution of their legitimate claims on their
merits by denying Defendants' Plea.
II. Under Miranda the Plea Should Be Denied:
Defendants' contention that Miranda's analytic rub1·ic mandates dismissal of the
Assault Victims' claims herein in incorrect as explained in not only Mil'``tself, but in
three very recent Houston C.C.A. decisions applying it as well. ~U
ortj
In Mimnda, the Supreme Court did articulate the anal~( rubric Texas courts
' determmmg
must app1y m . . JU!'IS
' ' dictwn.
' ' h af&:@j)
To procee d Wlt ' 1 court must
~'ease, the tna
have jurisdiction over the parties and the subjecto~er, Id., at 226; and, that
determination is a question of law, Id.; but~tantly, "disputed evidence of
jurisdictional facts that also implicate the meritsId., at 227. In that regard,6Court made clear that: "... if a plea to the
jurisdiction challenges the existence ~;isdictional facts ... [which] require[es] the
examination of evidence ... the tr``~Gh exercises its discretion in deciding whether the
jurisdictional deternrlnation se~ be made at a preliminary hearing or await a fuller
development of the case." ~d, pursuant to U.S. Supreme Court mandate, "[internal
. .
citatiOns mmtte ·ti~ eVI'dence creates a c,act quest'1011 regard'mg th· e JUris
. d) , ... 1~e . . d'JCtlona
. 1
issue, then the tri~rt cannot grant the plea to the jurisdiction, and thefact
issue will be~:f/,lved
g
by thefactfinder. (Emphasis added)." I d., at 228.
01~asis thereof, Miranda made clear that such standards only impose a
persuasion burden on each party, which "mirrors that of a summary judgment." Id.
"However, by reserving for the fact finder the resolution of disputed jurisdictional facts
that implicate the merits of a claim or defense, we pJ•eseJ'Ve the parties' right to
p1•esent the me1•its of their case at h-ial. (Emphasis added)." I d.
75
In Kubash v. Hm·1·is CnttJ., 01-12-00214-CV, 2013 WL 1844217, *2, __
S.W.3d__ (Tex.App.- Houston [1st Dist.] May 2, 2013, pet. for rev. filed June 17, 2013),
in reliance upon MiT'anda's teaching, the court made clear that while:
"The plaintiff must allege facts that affirmatively establish the b·ia~urt's
subject matter jurisdiction. Id.; City of Pasadena v. Kuhn, 260 S. . 93,
95 (Tex.App.-Houston [1st Dist.] 2008, no pet.). In determin~ 1ether
the plaintiff has satisfied this burden, we construe the~f!dings
liberally in the plaintiffsfavor and deny the plea t!J!!f!plaintijj'
has alleged facts qffi1'11tatively demonstmting j~diction to
hear the case. Miranda, 133 S.W.3d at 226-27; Smith ~ftiilveston Cnty.,
326 S.W.3d 695, 697-98 (Tex.App.-Houston [1st ~fiil 2010, no pet.).
(Emphasis added)." 2013 WL 1844217, •·2. o~
.~
In Univ. of Texas M.D. Anderson Cancer Cf!:J'fiifKing, 417 S.W.3d 1, 5 (Tex.App.-
Houston [14th Dist.] 2013, no pet.), citing to~itwda, the CCA stated:
"If a plea to the jurisdiction challen@~e existence of jurisdictional facts,
comts must consider relevant evid;lil.:rl'clfsubmitted by the parties. [Miranda]
at 227. The standard of review f@)'ll jurisdictional plea based on evidence
generally mirrors that of a tradi<\'J£>nal summary judgment. I d. at 228. Under
this standard, we credit afhol~all evidence favoring the nonmovant and
draw all reasonable infer`` in the nonmovant's favor. Id. The movant
must assert the abse~ of subject-matter jurisdiction and present
conclusive proof that t~e ti'ial court lacks subject-matter jurisdiction. I d. If
the movant dischar``llis burden, the nonmovant must present evidence
sufficient to raisy,J\._~'liuine issue of material fact regarding jurisdiction, or
the plea 'vl'ill be~tained. I d. As with a traditional motion for summary
judgment, if t avant fails to present conclusive proof of facts negating
subject-mat urisdiction, the burden does not shift to the nonmovant to
establis~ xistence of an issue of material fact. See id."
King, at 5· §::rg
Fu~r, in HorizonjCMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 897 (Tex.
2000 ), the Sup1•eme Court stated that:
"Texas follows a 'fair notice' standard for pleading, which looks to whether
the opposing party can ascertain from the pleading the nature and basic
issues of the controversy and what testimony will be relevant. See Broom v.
Brookshire Bros., Inc., 923 S.W.2d 57, 6o (Tex.App.-Tyler 1995, writ
76
denied) ... 'A petition is sufficient if it gives fair and adequate notice of the
facts upon which the pleader bases his claim. The purpose of this rule is to
give the opposing party information sufficient to enable him to prepare a
defense.' Roark v. Allen, 633 S.W.2d 804, 810 (Tex.1982).
Auld, at 897.
Miranda merely amplifies the long-prevailing standards for. ~ial court's
evaluation of a plea to the jurisdiction; which standards remain very~h intact, post-
Mimnda, as the following case law explains. In City ofAustin v.t!Jras, 160 S.W.3d 97,
100 (Tex. App.- Austin 2004, reh'g overruled), (relying onMh``~), the court noted that:
"In reviewing a trial court's ruling on a plea to th~sdiction, we do not
look at the merits of the case; rather, we constr~e pleadings in favor of
the plaintiff, look to the pleader's intent, and~pt the pleadings' factual
allegations as true. TexasAss'n ofBus. v. Te§B~ir· Control Ed., 852 S.W.2d
440, 443 (Tex.1993). A jurisdictional challen~ may implicate the merits of
the plaintiffs cause of action. See T.``Dep't of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 227 (Tex~ ). If evidence raises a fact issue
concerning the court's jurisdiction;f' II' uld be inappropriate for the court
to grant a plea to the jurisdiction.~"< t 227-28."
Id., at 100. Similarly, in Timdo v. Ci'#Jl9El Paso, 361 S.W.3d 191, 194-95 (Tex. App.- El
Paso 2012, no pet.), the court rei~d that:
"The existence of suif' 9matter jurisdiction is a legal question which we
review de novo. Mir , 133 S.W.3d at 226-27; State Dept. of Highways
and Public Tmn~ . Gonzalez, 82 S.W.3d 322, 327 (Tex.2o02). In
conducting our ~ew, we do not look at the merits of the case but construe
the pleadings ~erally in favor of the plaintiff, look to the pleader's intent,
and accept ~852
S.W.2d 6; Arnold v. University of'Texas Southwestern Medical Center
at D , 279 S.W.3d 464, 467 (Tex.App.-Dallas 2009, no pet.); City of
A s . Lamas, 160 S.W.3d 97, 100 (Tex.App.-Austin 2004, no pet.) ...
If the evidence shows a fact question regarding the jurisdictional issue, a
plea to the jurisdiction may not be granted and the fact finder should resolve
the fact issue. [Miranda], at 228.''
Timdo, at 194-95.
77
Fmther, Miranda did nothing to disturb the principles regarding jurisdiction
which the Supreme Court set out in Peek v. Equip. Serv. Co. of San Antonio, 779 S.W.2d
"[A] liberal construction of the pleadings is appropriate. As we wrote in
Pecos & Nm·them Texas Railway Co. v. Rayzor, 106 Tex. 544, 54~8, tlks.w.
1103, 1105 (1915): 'In any doubtful case all intendments of th 'ntiffs
pleading will be in favm of the jurisdiction.' Unless it is cl@lr~ rom the
pleadings that the court lacks jurisdiction of the amount in dfit'i·oversy, it
should retain the case. Dwyer v. Bassett & Bassett, 63 Tex. , 276 (1885).
As one court recently said: '[W]e must presume · avor of the
jurisdiction unless lack ofjurisdiction qffirma
the face of the petition.' Smith v. Texas Impro1l2012 WL 3758084,
*3 (Tex. App.- Ft. Worth Aug. ~12), reh'goverruled (Nov.1, 2012); Buethev. O'Brien,
03-09-00363-CV, 2010 W~3087, *3 (Tex. App.- Austin June 30, 2010, no pet.).
III. If Plaint~eadings A1•e Deficient, They Should Be Allowed to
Amend:.~
o~@r
Defend~eliance upon City ofWaco v. Lopez, 259 S.W.sd 147, 150 (Tex. 2008),
discussed s~, for the proposition that they are entitled to the granting of the Plea
vvithout ~ntiffs being given an opportunity to amend their pleadings, (Plea, pg. 21), is
misplaced. There, the Supreme Court authorized dismissal without granting leave to a
plaintiff to amend only where "the pleadings or evidence affirmatively negate a
jurisdictional fact." I d., at 151. This mirrored the Court's prior ruling in Mimnda, "If the
78
pleadings affu·matively negate the existence of jurisdiction, then a plea to the jurisdiction
may be granted without allowing the plaintiffs an opportunity to amend." I d., at 227. But,
no such negation has here occurred and the Assault Victims' Third Amended Petition
clearly states the viable claims of each of them. See Kess ling v. Friendswood Indep. Sch.
the justiciability challenges, Kessling is only required to plead su~Q
*
Dist., 302 S.W.3d 373, 380 (Tex.App.- Houston [14th Dist.]2009, pet.``d)("To avoid
facts to support
o(ij
jurisdiction. See City of Waco v. Lopez, 259 S.W.3d 147, 15``x.2oo8)."); Willie v.
o@'@
Comm'njor Lawyer Discipline, 14-10-00900-CV, 2011 W~4158 (Tex.App.- Houston
[14th Dist.] July 26, 2011, pet. denied)(plea to juris~1 sustained without right to
amend pleading because disciplinary proceeding~t judge did not waive sovereign
immunity); Univ. of Texas M.D. Anderson~cer Ctr. v. King, 417 S.W.3d 1, 11
(Tex.App.- Houston [14th Dist.] 2013, n~(exercise of medical judgment does not
sovereign immunity so granting of ple~jurisdiction v.':ithout leave to amend pleading
proper). (19
In Schwartzott v. Ethe1``rop. Mgmt., 14-11-00950-CV, 2013 WL 1802628, *2
(Tex.App.- Houston [141h Jm~] Apr. 30, 2013, no pet.), in '':irtually tbe same terms and
©;~
also relying uponMir~, the court stated:
~
"When a_m;~y has.filed a plea to thejurisdiction challenging the
pleadi a reviewing cow•t must consl~·ue the pleadings
libera ' nfavo1' of the pleade1• and look to the pleader's intent,
iranda, 133 S.W.3d at 226] If the facts alleged
aft``';atively demonsh•ate the trial cow•t's jurisdiction to Item•
the ause, the plea to the jurisdiction must be denied. See id. If
the pleadings do not contain sttfficient facts to affinnatively
demonsh•ate the trial court's jurisdiction, but do not
affiJ•matively demonsh•ate incurable diifects in the jurisdiction,
the issue is one ofpleading sufficiency and t"he plaintiffs should
be affm•ded the oppo1•tunity to amend. (Emphasis added)."
79
Schwm·tzott, at 2013 WL 1802628, *2, See also Texas A & M Univ. Sys. v. Koseoglu, 233
S.W.3d 835, 840 (Tex. 2007)(plaintiff deserves the opp01tunity to amend pleadings if
defects can be cured). Moreover, the Schwartzott court also reiterated the Supreme
Comt's imp01tantruling, in Miranda, that: ''If the evidence creates afact question
See [Miranda], at 227-28. (Emphasis added.)" Id. ~!f;J
*
regarding the jurisdictional issue, then the plea to the jurisdiction~ be denied.
And, in Univ, of Texas Med. B1•anch at Galveston v. Ta``89 S.W.3d 457, 461
o@j
(Tex.App.- Houston [1st Dist.] 2012, no pet.), the court hel~:
"If the facts affirmatively demonstrate the trial ~'s jurisdiction to hear
the case, the plea to the jurisdiction must b~d,tl. See id. at 226-27; see
also Kamel v. Univ. of Tex. Health Sci. C ' ouston, 333 S.W.3d 676,
681 (Tex.App.-Houston [1st Dist.] 2010, pe enied) ('[W]e are required to
construe the aUegations in favor of ju~iction unless, on its face, the
petition affirmatively demonstratesi!'~f jurisdiction.'). If the pleadings
do not demonstrate incurable de£ - n the jm·isdiction, but also fail to
allege sufficient facts to demonstJ;Mimn~ 133 S.W.3d at 226-27."
Tatum, at{61. See also Houston .o?.~TerminalRy. Co. v.
rf'Y City ofHouston, 14-13-00273-
CV, 2014 WL 258557, *3, ---;;;,~W.3d _, (Tex.App.- Houston [14th Dist.] Jan. 23, 2014,
no. pet. h.); Dallas CQ1@"9J:Fex. v. Logan, 05-11-00480-CV, 2014 WL 69038, *5, _
S.W.3d_, {Tex.Apl),~allas Jan. 9, 2014, no. pet. h.); and, City of San Antonio v. Rogers
0 ~©r
Shavano Ranc``' 383 S.W.3d 234, 241 (Tex.App.- San Antonio 2012, mv. denied).
!f;::Q CONCLUSION
Fo~l of the foregoing reasons, the Defendants' Plea to the Jurisdiction of the
Court is fundamentally deficient and Plaintiffs request the Court to deny such Plea in each
and all of its particulars. The Assault Victims have properly pled and thereby assert
completely viable claims over which this Court can and should exercise jurisdiction,
80
allowing such claims to be decided upon their merits. Plaintiffs further request any
additional relief to which they may have shown themselves justly entitled to receive.
Respectfully submitted,
The Law Firm of Alton C~d
~
a
BY: /s/ Jeffr``odd
Jeffrey - odd
Sta~· No. 24028048
!3l``riendswood Drive
~dswood, Texas 77546
<~·992.8633
``81.648.8633 (Facsimile)
A\~JURNEYS FOR PLAINTIFFS
¢"'@;];
~
a
~
(@
~I{J
((j
``
(!Jg
~
¢;@
~g
~
~
81
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was served upon the
following defense counsel on the 27th day of February, 2014 viae-file:
Gregg M. Rosenberg
3555 Timmons Lane, Suite 610
Houston, Texas 77027
*
~rtf!JJ'
{sf JeffreyN. To~
82
2/21/2014 2:37:35 PM
Chris Daniel- District Clerk
Harris County
Envelope No: 535642
By: PATION, JONATHAN R
CAUSE NO. 2012-65503
KERIHILL, § IN THE DISTRICT COURT OF
MICHELLE BARNETT §
and STACY STEWART §
P/alllllffs, §
§ HARRIS COUNTY, TE~
v. §
§ ~
HENRI MORRIS and
SOLID SOFTWARE SOLUTIONS, INC.
§
§ 5S'b JUDICIAL ~aiCT
~rf:j
d/b/a EDIBLE SOFTWARE
Defendants.
0~
CAUSE NO. 2012-65505-A: ``
MICHELLE BARNETT § INo~DISTRICT COURT OF
Plaintiff, § -~
v. ~ ~0@}
b~ HARRIS COUNTY, TEXAS
HENRI MORRIS and
SOLID SOFTWARE SOLUTIONS, INC.
d/b/a EDIBLE SOFTWARE
Defendants. & § 55 1h JUDICIAL DISTRICT
rw
``B NO. 2QI;! 6SSG3 lil
STACY STEWART ~"V § INTHEDISTRICTCOURTOF
Plaintiff,
$il~ §
v. Qcg ~
MORRIS~ ~
HARRIS COUNTY, TEXAS
HENRI
SOLID SOFT``~OLUTIONS, INC. §
d/b/a EDTBLE ~wARE §
Defendants.(g § 55 111 JUDICIAL DISTRICT
`` btN~j}J&,
ORDER GRAN~EFENDANTS' PLEA TO THE JURISDICTION
Pendmg before the Court is the Plea to the Court's Jurisdiction filed by Henri Morris and
Solid S(}f\ware Solutions, Inc. d/b/a Edtble Software. After considering the pleadmgs on 111e and
RECORDER'S MEMORANDUM
nus mstrument IS of poor quilhty
,, E ,,
Grantmg Defendants' Plea to the Junsd1ctton
a\ the Lnne of !!llaglfl{l
-fW m~\hA \IJ ~eNIP~.
the arguments of counsel it is this Court's opinion that ?u• ta tho Plointi€f•' fojlure to exhaust,
}heirjJlrisdictiopal prexequisitEls,..this eetttt does Jtot ltave subjeCt mattm jmisdjction to hear the
oo!llls. 'Fhe cases are hereby 15i:SMISSEb WITH PREJUDICE.
SIGNED THIS~ DAY OF MARCH, 2014
Order Grantmg Defendants' Plea tQ the JunsdJctlon
Case 4:12-cr-00255 Document 67 Filed in TXSD on 08/05/13 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT United lltom Courts
SoUihlln District of Texi!S
filED
FOR THE SOUTHERN DISTRICT OF TEXAS
AUG- 5 Zlll3
HOUSTON DIVISION P>.11ld J. Bradley, Clerk of Court..•
UNITED STATES OF AMERICA
vs.
§
~ CRIMINAL NO. H-l@ss
Jt
§ ~
HENRI DE SOLA MORRIS
§ ~
<6~
~
SUPERSEDING INDICT~T
Qi@}
THE GRAND JURY CHARGES THAT: o"'-:f@
u
&UN1'1
``
@!
On or about February 27, 2~Q.,ithin the Southern District of Texas, and elsewhere,
U HENRI MORRIS
~
defendant, knowingly attet~ to transport, an individual, KH, between Texas and New York,
with intent that KH
0
etlM~in sexual activity for which any person could be charged with a
~@'-
criminal offens``fically "Improper Photography" in violation of Texas Penal Code § 21. 15
and "Sexua~use in the f1irst Degree," in violation ofNew York Penal Law§ ! 30.65.
~
All in violation of Title 18, United States Code, Section 2421.
EXHIBIT
l1 ,~ c ,,
ll r
Case 4:12-cr-00255 Document 67 Filed in TXSD on 08/05/13 Page 2 of 3
COUNT2
On or about January 8, 2012, within the Southern District of Texas, and elsewhere,
HENRI MORRIS
defendant, knowingly transp01ted, and attempted to transport, an individual, KH, ~en Texas
and New York, with intent that KH engage in sexual activity for which any -·~could be
py
charged with a criminal offense, specifically "Sexual Abuse in the First Q-~." in violation of
New York Penal Law§ 130.65. o lf!}~
Q~
All in violation ofTitle 18, United States Code, Secti``l.
11!~
Qy
cou~
On or about November 8, 20 I 0, within ~uthern District of Texas, and elsewhere,
~·
HEJ\~ MORRIS
.@!
defendant knowingly transported, an~pted to transport, an individual, DM, between Texas
and New Yark, with intent that D~1gage in sexual activity for which any person could be
charged with a criminal offe~ecifically "Sexual Abuse in the First Degree," in violation of
New York Penal Law §~Ys.
o{?
All in via~ of Title 18, United States Code, Section 2421.
~g
~
COUNT4
On or about February 8, 2010, in the Southern District of Texas, and elsewhere,
HENRI MORRIS
2
Case 4: 12-cr-00255 Document 67 Filed in TXSD on 08/05/13 Page 3 of 3
defendant, knowingly transpo1ted, and attempted to transp01t, an individual, SG, between Texas
and Pennsylvania, with the intent that SG engage in sexual activity for which any person could
be cha!'ged with a criminal offense, specifically "Indecent Assault," in violation ofPennsylvania
Consolidated Statutes§ 3126.
All in violation of Title 18, United States Code, Section 2421. o
#}
a
lJf
*
``~
COUNTS
On or about May 8, 2011, in the Southern District
if
ofT~, and elsewhere,
HENRIMO ~ RR~
defendant, knowingly transported, and attempted to~port, an individual, AF, between Texas
and New Jersey, with the intent that AF engagt(~ual activity for which any person could
be charged with a criminal offense, specific``nvasion of Privacy," in violation of New Jersey
(@
Statutes Annotated 2C: 14-9 (b). ~
All in violation of Title 18~7ted States Code, Section 2421.
00~
~
o~OJ A TRUE BILL
~u ORIGINAL SIGNATURE ON FILE
~0 ~URbPERl'lON OF THE GRAND JURY
agidso
tes At
3
Case 4:12·cr-00255 Document 129 Filed in TXSD on12/03/14 Page 1 of 16
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
UNl'l'ED STATES OF AMEIUCA §
v.
HENRI DESOLA MORRIS,
§
§
§
§
CRIMINAL NO.
~u
*
12-255~
~
Defcndnnt. §
PLEA AGREEMENT Q~
The United States of America, by and through Kenneth~gtdson, United States Attorney
O~v
for the Southern District of Texas, and Sherri L. Znck m``ll\e Ehnilady, Assistant United
States Attomeys, and the defendant, Hemi Morris CQ~tdant"), and Defendant's counsel, Dan
0~
Cogdell, pursuant to Rule ll(c)(l)(A) of the Fe``ules of Criminal Procedure, state that they
. u
have entered into an agreement, the tenus m~onditions of which arc as follows:
g
Dc~aut's Agreement
1. Defendant agrees to p~i!ty to Count Five of the Superseding Indictment. Count
Five charges Defendant with T<~sportation, in violation of Title 18, United States Code, Section
2421. Defendant, by ct~his plea, agrees that he is waiving any right to have tl1c facts that
the law lll'\kes esseo~ the punishment either charged h1 the indictment, or proved to a jury or
o(CJJ
proven beyond ``onablc doubt.
§:;:g Punishment Range
~
2. The ~tatutory maximum penalty for each violation of Title 18, United States Code,
Section 2421, is imprisonment of not more than 10 years and a fine of not more than $250,000.00.
Additionally, Defendant may receive a term of supervised release after imprisonment of at least 5
years aad up to Life. See Title 18, United States Code, sections 3559(a) and 3583(k). Defendant
Case 4:12-cr-00255 Document 129 Fllecl in TXSD on 12/03/14 Page 2 of 16
acknowledges and understands that ifhe should violate the conditions of any period of supervised
release which may be imposed as part of his sentence, then Defendant may be imprisoned for the
entire teml of supervised release, without credit for time already served on the tenn of supervised
release prior to such violation. See Title 18, United Stated Code, sections 3559\~ld 3583(e)
·~
and (k). Defendant understands that he cannot have the imposition or cxec~'iravcl for
business. ~
·~
Durh1g the execution of the wanant, several items ofevident~ue were found. Three
(3) fifty (50) milliliter Jack Daniel's bottles containing a clear li``vhiclilab tested negative for
o(@j
controlled substances, were located in MORRIS' carry on s,~sc. MORRIS, having heard a
WI
conversati011 between two agents about the fact that Ja~niels is not a clear liquid, stated
something to the effect of" ... , there could be a p~ reasonable explanation for that." .
MORRIS used the unknown liquid to dilute t``gs he administered to A.F. by adding it to the
alcoholic drinks he supplied to her. !f7!»!!;)
The search also uncovered hl~ackages containing pills.
.``
One package contained,
within four (4) individual blist~\fue diamond shaped tablets marked "VOR 50" or "VGR 5,0"
imprinted on one side. ·0``lls appear to be the erectile dysfunction drug sold co!nmercially
as Viagra. A four se~Iw blister pack with one missing tablet wus found which contained
¢~@'·
Tadalafil. This~1ysician's sample of the drug commercially known as Cinlis, another
erectile dysf~on drug.
l~ unmllrked prescription bottle, located in MORRJS' belongings but not contained in
the compartmentalized pill box he also possessed, were 5 pills. These pills were analyzed by the
Drug Enforcement Administration. Two of the pills were determined to be Zolpidem which is
7
Case 4:12-cr-00255 Document 129 Filed in TXSD on 12/03/14 Page 8 of 16
commercially knoWll as Am bien. One of the pills was determined to be Oxazepam, a
benzodiazepine. The remaining two pills were determined to be diphenhydramine; this drug is
commercially known as Bcnadryl. FBI Supervisory Forensic Chemist/Forensic Toxicologist
Marc Lebeau, an expert in drug facilitated sexual assault, reviewed the facts ofthi~e and the
toxicology results and determined the symptoms described by the victim arc c<>~ent with her
. Q"-·
being administered these drugs in combination wiU1thc ingestion of alcoh"~
0``
The Society of Forensic Toxicologists defines drug-1acilitate0~al assault (DFSA) as
"when a person is subjected to nonconsensual sexual acts whileigre incapacitated or
0~
unconscious due lo the effect(s) of ethanol, a drug and/or oll~noxicating Sltbstancc •md arc
therefore prevented from resisting and/or unable to con~ w The Society of Forensic
Toxicologists further identify the following as typi``ptoms of DFSA: drowsiness, dizziness,
loss of muscle control, slurred speech, decrci~bitions, memory loss or impainnent, loss of
consciousness, and vomiting. The Socie``orensic Toxicologists compiled a list of drugs, in
addition to ethanol, as known to hav~ associated with Dl'SA. The drugs found on MORRlS
at IAH arc on that list. ~Q
A.F. was employed ~ible Sollware from May 2011 through August 20 II.
Approximately one w~Qcr
o@J
beginning hired and pursuant to a work assignment she had
received from M``· A.F. traveled with MORRlS to Philadelphia, Pennsylvania. Continental
Airlines coni~ that MORl11 A. I'. identifying the images an~ ~parisons on distinct
markings on A.F. it was proven that the images are in fact of A.F. 'lll~":tographs
n,~ .
are date and
time stamped conesponding to the New Jersey incident chargcc:kin'llfc superseding indictment.
. ffl~
o{Y
Records show that MORRIS and/or his company, E"'~Software purchased or redeemed
{!j"'
miles to pay lor the travel in interstate conmlerce inclu~ airfare and rental car fees. It is clear
based on the inlonnation provided by the viclim``~ks found on A. F., the drugs tom1d during
the search, the photos found during the searc~Vthe behavior ofMORRlS, that MORRlS
transported A.F. in interstate conunerce ``tc intent to engage with him in a sexual activity for ·
which he CO\tld he charged with ncr~ offense, specifically he took photographs of her
exposed intimate parts without !:WQ1scnt for which he did not have a license/privilege to do so in
vialation of New Jersey Q'(JJ~
'~
~/
o;{!PJ
~ Breach of Pica Agreement
15. ~fendanl should fail in any way to fulfill completely all of the obligations under
this plea ~ement, the United States will be released from its obligations under the plea
agreement, and Defendant's plea and sentence will stand. If nt nuy time Defendant retains,
conceals, or disposes of a•scts in violation of litis plea agreement, or if Defendant knowingly
II
Case 4:12-cr-00255 Document 129 Fllecl in TXSD on 12103/14 Page 12 of 16
withllOlds evidence or is otherwise not completely truthful with the United States, then the United
States may move the Court to set aside the guilty plea and reinstate prosecution. Any infom1ation
and documents that have been disclosed by Defendant, whether prior to or subsequent to this plea
agreement, and all leads derived therefrom, will be used against defendant in any 1~cution.
CJrrt[f
Rcstifulion, Jlurfciture, and Fines- Generally
J 6. This Plea Agreement is being entered into by the United ~Ys on the basis of
o§;'j
Defendant's express representation that he will make a full and complt~isclosure
s~lib~> I<> til~ }loudonCtlrnnl~lf! I Sll~pplng I Classllieds I Obils IPlace en .Ad )laVoz
· ·.68'F Overcasll Hovston l'luthu
Homil I lot~ I I US &World I Spvrt~ I Buslneu 1Entertainment I Life:otyle I Jabs I Cars I Rw.l e-s.tate
Software exec pleads guilty to drugging, abusing female
employees
By Dane Schiller) D~X:ember 3, 2014 J Upd3ted: December .3, '2014 l:OBpm
cos-mn~nls . E-mall Prill\
Texas Home Insurance
Lntt:sl Vid~os
A former l{ouston soltwareC(Impanyexeeutlve pleaded
(IUll\yWednecday to drugging Md ~exu~lty abusing a Whii\Youl.lln~-02!9201S_MA!N
female Employee- stoppil\9 11 federal trial bef()(ethe ~-.;C.'l""'\1
lirsl of as man)''llS u half doaenwornenwr;rl! to tes111y
agalnsl him.
HenriMouls. f1umerly the head of Eilib\e SOftv1nre
Solution I', now faees uptt~10year$ln prlse>n and a
$ZSO,OOO fine. He a]SI) h~s I01~i$lct for the 1estofhls
life as a se>roflender.
Mwis, 1>7, was slumped fo!Word in Ills clla!rln the
courtroom, appe~red to hvetrotJble bre.1.1hlng, and
1t1as shaking u hlslawyershuddled wlll'l pros~cutors
to humm~r out an agreement with prosE~utors.
Relnted Stories 6y adm)Uing~owhat he did to one of the we moo,
pnJ:t~ecutors d"ropp('d tfie r.lher eharges ·and s11ared all
!rial &tarts fur tJC softWare e.x~aecusW of of them f10m M.vfng topubliclyte.otifyabovt lite C>altol
drugging, sexuaUy .abuslJl!lemployoo' as well as wharlooked to be a grueliflg C/09$·
Jud9e revokes bond for exec a~u'ed of examlnat!r.n by l.lnrris's fe~al teall'l.
drugg:Tng female employe!!$ Whfle Mor(i9 was shaken, hlsviolim$ and \hell ramllles
Softwareeomp~nl' cllleft\dmltt to drugging corMQrted each other snd shared u fe~ling r.f Jennlf~r Anirlon's Bikini
four female empli:>yeM for sex abuse: vlndiwthm. llod lhrough the Ag~'>l
[U$\\'e-el1her wom~n &nd th&lrfamlllMY;ho li11ed the first two rows of the CCIUrtr\Xln1 ltiGitor
set~lin!,l ~rea.
u.s. District Judge Meliml~ Hannon, who told Morris hel~ould be b~ck Tn hercOllrtroom In February for
sentencing, had r~ected a plea agreemeJJt last ye~rthat would hve capped hl~prison lime atoneyear.After
hurit19' his victimG testify at 11 sentencing hearing, Harmon uldlhe Ca$e would ffistead pr()ceed to tri~t
Top Stories
Uurin11 openin~t9rgvments TUWd~,PfOsecl>tOJr Sberri Zack told jurors th~l Morris was a c~lculallnll sexual
predator WhCltooll a 'rape kit' on bu$ineS$ trip$\0 rai``em,l)loyee'$ driflhwith dru~s and later <1bv$t them I
phys!cally,!neluding tal< e. photograph; of their nutle bl)diu. -K::.,,.
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2of4 02/20/2015 1:53PM
ANDREA FARMER 7/11/2013
1 (Pages 1 to 4)
1 3
CAUSE NO, 2012-65503
INDEX
' KERI HILL and IN' 7!11:": PlSl'RtCt COURT
3
Appearances......................................... 2
3 MICIJ:ELLE BARNE71'
Plaintiffs
'
' ' ANDREA FARMER
vs.
• 55TH JUDICIAL DISTRICT
Examination by Mr. Rosenberg................... 5
HEURI MORRIS and SOLID ' Examination by Mr. Cogdell ..................... J48
5 SOF11lME SOLUtiONs, rNc., §
Re-Examination by Mr. Ros~ ............ ,... 222
d/b/a EDIBLE SOFn1ARE
Defendants
§
' HARRIS COlJNTY, TEXAS
10
11
Certified Question ........ iF'``·········· 143
Signature and Changes Sf.~!d}...................... 239
+• `` ** ~++H·*++. + ** * +++' **. * •• *** H 12
Reporter's Certificatefu........................ 241
~!fj
10 ORAL JUID VlDE.Ol'AP.ED DEPOSITION OF
l1 ANDREA Fl\.BMER ::
~BITS
12 JUL't 11 1 2013
15
13 o
14 16
NUMBE~ESCRIPTION PAGE
15 ORAL AND VIDEOl'Al'ED DEPOSI'lTON of A.'lDR£1!. FARMER,
16 producad as a HitneEs at the instance of the Defendant~,
17
Exh~b``~to of Andr~a and Come_dian ............ 85
Ht E~b~A) Phot~ ofHenn and Comed1?n ............. 95
17 and duly s1mrn 1 was taken in the 11hove-atyled and
1a nu.t:'l:lered cause on the llth of July 2013, fro::~ 10:09 a.n.
19
E· ib3Email fromAitdrea to Hcnn .............. 125
19 to 3:56 p,n,, before Molly C~r:ter, Cl:>R .in and fo~ the it 4 Handwritten Notes on Back of Statement., 149
20 state of 'i'oax:as, :reported by nachine sho.a:thand, at the 5/9/11 Facebook Post .................... 193
21 offices of U.S. Leyal SUPIJo&t, 602 1/orth carancahua, 5/9/11 FacebookPost .................•.• 193
22 Suite 2261), Cotpus chriati 1 Texas, pursuant to the Texas ¢ 3
Exhibit 7 5/IO&Illll FacebookPosts ........•..••.. 222
23 Rules of Civil Procedure and the provisions stateo:l Qn the {
Exhibit 8 5/9/J I Facebook Post .................... 222
24 •ecorcl or <~ttac:hed llereto. ~ 25
25 (_
Exhibit 9 5/11&12/11 Facebook Posts ............... 222
4
APPEARANCES 1
Exhibit 10 5/12 & 7/27/11 Facebook Posts ..•••.•••.• 222
'' FOR THE PLATNTIFF(S): ' Exhibit I I 7/27&29/1 I Facebook Posts ............•.. 222
MR. JEFFREYN. TODD 3
Exhibit12 8/2/ll Facebook Post ..........•...•..... 222
The Lnw Firm of Alton C. Todd 4
312 South Frlend&wood Drive Exhibit13 812&8111 Facebook Posts ........••.••..•. 222
Friendswood, Texas 77546 ' Exhibit 14 8/8/11 Faccbook Post .................... 222
Phone: (281) 992-8633
p.,, (28!)648·8633
jeff@at:llaw.wm
" 30
a
11
12
13
" 14
"
,. FO~,``~-HENRl
1S
" MORRIS:
c~ 16
17 Street, 4th Floor 17
Houston, Texas 77002 10
Phone; (713) 426-2244
Ftt"t: (713) 426-2255 19
dan@cogd3
A. I'm one credit away from gL·adunting, so no.
Q. Did you accept? Q. Okay. One credit away?
A. I officially ac-cepted on that Friday, when I 5 A. Uh-hul,,
ro tool< in my offer ldtcr to sign. Q, Right now?
Q. So it was Wednesday ·when you had the interview, 7
A. (Nodding head,)
a they offered you the position then, and then there was a e Q. What`` assuming you ~t credit, what do
9 process in which you obtained an offer lett~r?
you expect your degree to be ;``ed in?
10 A. Yes. I w• Rlld I can't recall if it was that 10
A. ABA in sociolo``~l\t'Wa minor in business.
11 Wednesday C\'ening or that Thursday C\'tning that I 11
Q. Okay. When wa~'fi.st time you've taken
12 received the offel' Jette I'. And J \Yas ldnd of\\'altlng •• 1
~ courses towards your~ree?
13
to me, I didn't officially accept ~mtill signed the 13 A. In 2010. 1``ed a com-se and didn't finish
u offer letter, or they didn't officially offer me the 14 it. ``
H> position untU I signed the offer letter. 15
Q, TI1a-t.:.\\``ore you gave your statement to the
" Q. You wanted it in writing? 16
FBI. Co~
A. Right, and I wanted to see the sala1·y am1,l 11 A. y~
16 18
mean, that's just rww you get a job. Q. · n the time you began at Edible until the··
¢
19
Q. What was the salary? ~9 let it U1is \Vay: How much time did, were yo11, was
" A. It was 48,00(} a year, lYitb commission, 3 ~0 • , t you were working at Edible until you took your
21
percent on caclt net sale {If the software. t trip?
Q. How did that compare to wltat you were making aL A. Oh:1 two weeks.
23
the Mattress Firm? Q. Okay. How did that come about? Ho\\' did the
24 24
A. Ihl'as more. And I was making about the same ( trip come about?
" In safa~·y, and then I·· but I was going to be maid~ A. Well, Henri had planned on going to visit a
Q 74 76
1 additional ton1n1iSsions at Edible Sot'tWRI'(~: ID was 1
couple of clients the1·e, nnd two of which were--
substantially mm·e, · ,!&,~ Q. Where?
Q. What were your duties and respo~i:J)ncs when A. ln --there's a client he wanted to l'isit in
4
you first started? \U ~ Philadelphia, and then one in New Jersey, one In Newarl{,
A. To set up all of our social edh(, to mnlntain .5 Or I guess that's New Jersey as well. Some,-..· here in the
G a~d learn how to mnintain the · te, to learn bow to 6
lll{e countrr of New Jersey and then dol\'ll in the ports of
7
demo the sofh'ntre, to maltc o clients:! like cold '1 Newark. So the first two were prospects. They weren't
* calls. I wonl1
A. I t1·aveled by myself. ~ Q. Order~d nacks or food or something like
16 Q. Okay. Where dld you first meet,Jp with Henri? "that? A~
A. Uh~
17
A. At the Philadelphia a!rpoJ·t.
16
Q. He picked you up, I take it ta Q. ,~lmigwerey'allthere?
" A. Yes, He, I thin I<, h:\d gotten In a little 19
A:~Jybe Rll hour·and~a-hnlf.
20 earllel' tfrnn I bad, so he \Yent and got the rental car and 20
.h~And what happened next?
21
then picked me up outsldc. ~({Jfi.. I went to sleep.
22
Q. Okay, About what time of day was it that you ~ Q Okay With regard to that encounter at this
23
arrived? `` ~: non-concierge bar at the Philadclphm l\1arriott ..
"25 A. It ,.,1as e\•enlng, probabb· Like 8:00. ```` :~W
10 10
sort of sports gnme on. So notblng substantial,
11
Q. DidymJ``..-\vlmtroomhewasin? 11
Q. Okay. This is a Sunday night }~all are getting
" A. No`` l\! in there.
1J
" CO PORTER: I'm sorry? A. Uh-hul1,
14 Q. ~ . Rosenberg) Did yo11 know-- my question
15
wa~. ``U know what room he \VfiS in? And then your
",, Q. How long was the business trip to Iast?
A. Okay, let me think. I guess we were to be back
16 lm~o that question was? 16
that Thursday ewning,
17
A. No. Q. Okay. Without going through every bit of
10 18
Q. Do you know if he knew what your room was? detail about the trip and the clients and the customers
1
~ A. I assume he did. He chedtcd 11s in, 1
'.1 you've seen, 1 want you to tell me the frrst thing that
20 20
Q, After you got situated in your room, I imagine happened on that trip. So it's the one that ended, you
21 21
you just got to your room, did what you had to do, and believe, the Thursday evening?
22
went somewhere.
" A. Uh-hub. Wdl, we ended up getting back that
" A. Uh-huh. 23
Thursday morning, becntlse the last client canceled, so 'i\'C
Q. Correct? 24
took an earlier flight thnt Thursday,
A. Yes. Q. 1'd like you to tell me anything that l111ppened
O,S. LEGAL SUPPORT
RIO GRANDE VALLEY -(800) 881-0670 CORPUS CHRISTI - ( 361) 883-1716
ANDREA FARMER 7/11/2013
21 (Pages 81 to 84)
81 83
1 1
duriElg that trip that you believe to be sexually to lUre pat and lll picture orr ofhere, 11 but I couldn't tYCn think to work
4 ~lamllug over me, and I'm naked. U 4
lhe BlackBerry.
And so I Wftli Sr;t tlrerl, arnl I just u~t enn So 1 Just handed it back to him, ~ncl I was lilu•,
~ a·e.all)' nglster what was going o tblnk I like (; "You JICCd to lea\'C, 11 And I sbut fbi! t1oor and locked 11·,
1
lor.~kcd .find then closed my eye 1
and then went back in bed and like lnld there for a
8
llke, "W~tit, Pm not 11 --Ill ...-:r\ t's. going on?" e second thinking like, "What iu the world just happeDed?''
9 Ami so I was lik<'1 PQ{Wtl··up, and I was like, "Whn.t 9
And tll~n l fell back aslt:ep for like four hours.
~ 9 are you doing? Are~XW~id youjnsf lake a plclure or Q. Okay. I appreciate your recollection of the
11
rue? 11 (f'~(}! n transactimt1 but I want to go back.
12
And be Wllf< ~'hnt? No, no." A. Uh-hnh.
1~ And l was J1 WJ1y are you i.n here? What are you Q. The Jast recollect1on you have before waking up
14
u doing?" ef out of here, get out of hue." l was with the blanket around you, and as you've described for
S like, '~.1\~'1:
1 10
\'e to get the picture." us, without nny clothes on-·
u An~as so disoriented and so confused, and tlte A. Uh-hult,
17
bed was just like really, like the cm•ea-s were all Q. ··what's the last recollection you had?
H fluffed up and there were pillows aU around. And .so I A. I remember beiug at dinner, and I~ it's like
19 19
wnsjust like looking around, and Thad the covers pulled really fuzzy. Like I real!)' don't remember a lot, but I
29
around me, and I was like1 11 Yop need to gh•e me that zo remember tlaerc \Yas some comedian there, and that Henl'l
21
camera. You can't ha\'C thRt picture." ~ 1 llkt:d himf and he- was like tnldng pictures of him and
22
" He was like, "No, no, no. It's flne. lt's fine. I talldng to him.
23
didn't ta!re a picture. I didn't take a plctnrr, 11 But it feels Jlke1 Ul{e I remember it and I lmow I
24
"25 So then I don't see the p'hone anywhere, and il\'!i 25
was present and I Jmow I was talking, but I don't know
ldtld of dark in the nwm, And so l'mllke kind of trying n·hat I was talking about or ifl was making any scosc or
U.S. LEGAL SUPPORT
RIO GRANDE VALLEY -(800) 881-0670 CORPUS CHRISTI - (361) 883-1716
ANDREA FARMER 7/11/2013
22 (Pages 85 to 88)
85 87
1 1
anything. But l know that there was a comedian there 1 Q. All right. We know three things. We know that
2 2
and I know thnt I was sitting at like a table. this is a picture of you and somebody. Rlght?
~ (Exhibit 1 mnrked for identiflcatlon,) :.l A. (Nodding head,)
4 4
Q. (By Mr. Rosenberg) Take a Jook at Exhibit l to Q. Correct?
5 5
your deposition. A. Uh-huh.
6 A. Uh-hoh. 6 Q. Yes?
1
Q. What is that? 7 A. Yes.
0
A. Me and a man. 6
Q. And we know that this~ was taken the
9
Q. Doyouknowwho thoma:n is? 9
nightyou1re talidng about, be~e this is whntyou were
10
A. No. 10
wearing. rF~!f!l/"'
ll Q. lsthat--doyourecallthatasbeingthe 11
A. Yes. y
12 12
comedian J.'OU1re referring to? Q. Okay. Wher~ you before that? Whatever
13
A. I mean, obviousl.)·lt Is who it M·lil\e -- 13
place this picture22
A. I don't lrnow who this person is. ~ Q, All right. But you know which one it was.
23
Q. lunders(andthal. Isthisthemanwhowas ¢ ~ A. Yes.
2 ~ identified to_ you as 11 comedirul that night?
25
A. So that question's: C{mfusiog, because I'm a, o" 1,,_(;::::.~ ``2524 Q. Was that what you were wearing all day?
A, No.
~"-------------------4``------------------------~
~86 88
L telling you I clou't remember who the come~l~·as. Q. So you changed into this article of clothiog ~·
Q. And I'm not asking for his name, /"iiflz~
2
A. Yes.
3 A. I don't C\-'enrcrncnlber bjs face.~ke'l ''aguely Q. ``before y'all went out to dinner.
4
remember llrnow he looll:e10
A. In Newark, right.
n Q. Okay. lf''i:S 11 Q. And then yOli went into Manhattan.
12
A. I can 1 t~ ``lnko£trhJ\t I brul for dinner or 12
A. Yes.
13
u the I"Citftur~ ~Itt I was at. Q. Did you take the train to Manhattan?
14 Q. Le ~ k this, is this you? A. No, Henri dro\'C the tun rental car.
" A Q, You remember it bchig a tan rental car.
26
Q~ ~y. Is this what you were wearing that 16
A. Uh·huh.
11
night? Q. Now, from Newark, there are three ways to get
19
A. Ye-s. into Manhattan. You could have taken the Linc-oln Tunnel,
19
Q. All right I'm not trying to trick you. l'm the Holland Tunnel, or the George Washington Bridge. Do
20 just tr)'hlg to~- 20
you remember?
21 21
A. No, I' Ill just trying to figure out what you want A, Took a tunnel.
22
me to "how you nould like me to answer the que.stion, " Q. But you don't know which one it was?
Q. J just \Yflntyou to answer the -questions as it A. Do they botb go underwater?
24
happened, tnlthfhlly, to the best of your kllO'I-\'Iedge. Q. Both tunnels go -~ yeah. You go actually under
25
A. That's what l'm trying to do. the Hudson River.
U.S. LEGAL SUPPORT
RIO GRANDE VALLEY -(800) 881-0670 CORPUS CHRISTI - (361) 883-1716
ANDREA FARMER 7/11/2013
23 (Pages 89 to 92)
89 91
1 A. It's a to-go coffee cup, Like that )'OU have in
A. ''Vhat are the hto names of the tunnels?
2
'3 Q. Lincoln end Hollnnd. The Lincoln Tunnel gets
3
the lmtcJ, probably about this tall. Twelve ounce-s
you out at 42nd Street. The Hollruld Tunnel gets you out maybe, or ten ounces. And I asked for vodka soda. And
4 4
at 14th Street. so he makes it for rue. And it wns so strong, like so
5 6
A. I don't know. I'm not familiar. strong I couldn't e\'en drinl{ lt. All I could taste was,
6 Q. All right. You remember taking`` do you 6
it tasted lik~ I was dr-inking a cup ofvodka.
7
7
remember, do you remember going over a bridge? And 1 was teJJing Henri, I was llke, 11 1 cannot ddnl{
8
s A. \Ye went un18
A. I met Henri in the concierge lounge. I asked 18
like,}t ~he attendant at the concierge lounge, and she
19
for a glass of wine. Henl'i was always 1'Cry like u bro me a bottle, like a little glass bottle ofsoda,
20
persistent that I have a real cocldai:l, and I like to zo was pouring fnto it.
21 drink n·ine, And I don 1t really do \'el')' well with I'Cal ~ o then we're drh·Jng~ and rm drinking this dJ·Ink
2
22 liquor, And-- ~nd kind oflilu~ pourlngint(llt ntthe same time. And I
23
Q. When you say "realliquor,n you mean vodka, ':r ~ just remember like- it was ldnd of a long drive, nnd it
24 gin, bourbon? ~ ~,_.2. 4 was still light outside, so I guess tt was still right
2
" A. Yeah, ha1·d liquor. ff_ ('f · 25
aromld rush hom·,
~90 92
1
Q. Okay, @> And !remember gning nuder the tunnels and through
2
A, And so I •·em ember the night bc-fe~(-$was 2
the bridges, nnd we wne stuck In traffic, and 1he to1ls 1
3
haling a glass of wine with dlnnel' nt {hk~ade1phla l and just reeling teaily fuzzy, a111I Uke, "Oh, my gosb 1
4 restnunmt, the bar at the hot•d, H~llke, 11 0h, 4
I'm ge(tlng really tipsy off of this dt·Ink, and maybe I
5
you1rli! not going to haYe a real ~"fiilfu 5
haven't eaten a lot today,'' and just kind of do llke n
" And I was like, "I just rea~)y.:_:to drink wine." ti mental cl!eck on myself.
7
7
And so then again, I a~k a glass of wine. I And I think that that-- I always try and do tlult
0
8
ass111ne ihrns a red wi~'(· r _ so he poured me tf1e glass when I'm drinking and I'm starting to fed lighHteaded,
9
of wine, and then '"e~ canting and c11ting some 9
just kind of, okay, reeognize howl feel, slow it down,
10
¢ ~
10
uppelizers. and know that I need to ldnd of be nware of myself.
11
And he was li.l``ell, let's, rou know, '''e can go " But by the time ·we got into the city and parked by,
12
l 2 eltber to A11 or we can go into Manhattan, I guess we parl,cd by Times Square, I was feeling very,
" Wl1a~doyo•``~todo?" 13
like really tipsy nn(l disoriented I guess,
14 And I !tt!, "Well 1 I want to go to Mnnhattan Q. So you have recollection of getting through the
15
l$ then." . I have no Interest in gning to Atlantic tunnel, parking at le.ast to recognize it was Times
1
16 CUy. ~ Square, or something you thought was Times Square.
"
18
And he's like, 11 0ltay,H And he was like, "WeU, "
18
A. Yes.
let•s get another drink before we go, But have a real Q. Okay.
" drink, and 111l fh: it fol' you. 11 " A. And then llenrl shon·cd me tills, It was Uke a
" And, ~nil so he fixed me this drink1 and ltwns in " subway or a train station where the•·e were these men
21
like a cup just Ul{e that. " currying this beam, And then it's like it was like an
" Q. It's the courl reporter's cup, hut it looks " optical Illusion painting, where if you looT< from like
" like a-· " two different shJesJ that ills the same, Hke they're
" A. It's a eoft'ee cup, " each carrying the same bench or log or whatc\'er it was.
" Q. -- to-go cup, coffee enp. " I ran't remember.
U.S. LEGAL SUPPORT
RIO GRANDE VALLEY -(800) 881-0670 CORPUS CHRISTI -- (361) 883-1716
ANDREA FARMER 7/11/2013
24 (Pages 93 to 96)
93 95
And so he's showing this to me1 and hc1s being kind 1
this is wher.e it just stRl'(S losing it.
2
of like really hands on wllh me, and I remember it making 2 Q. Okay.
3
me: feel uncomfortable. A. Like I can't remember nnythlng. I rememb~r the
And I remember when we were leayJng the conderge " t!ODledian being there. I remembe1' us frtldng pictures.
5 lounge, we 'l'e-re in Che eleYator, and I wns ldnd of like 5
But I don't remembeL·leavlug. I don't remember eating.
6 5
standing like kind of tense. And he was like, 11 0h, you I don't remember getting into tbe car.
7
h1we like your`` you look tense right here." And he 1
Q. So ifl ask you whnt you bad for dinner, you
8
like kind of pressed on my shoulder, e couldn't tell me? ~L
"' And 1 was like, "Ob, yeah, 1 guess I am, from 9
A. No, I couldu't tell you``
1
(1 sleeping In a hotel bed;• 1
(1 (E,:hlbit 2 mat·ked fo````!~fihtton,)
11
11 And he was like, 0h, wen, I studied anatomy, and T
11
Q. (By Mr. Rosenbe{~ you identifyExhibit2?
12 was like-· started to get my degree in massage therapy t:.> A. Tllis Is Henri ~11S,
13
'''hen 1 WMI in IsrAel, before I was in the Army and I n Q. Okay. 0
~
14
fought In the wsr.H 14
A, And I d``ow who this man is.
lll So 1 was like, 11 0kay, 11 And I was lil.:e1 that's 16
Q. But it's``e pecsonas in Exhibit 1?
• A. lt~e [Jerson as the picture thut I'm
16 6
weird, bnt I don't retdly want 111m to rub my back. So l
17
l'mjnst llke, 11 011, I'm finet Uke "I'm not tense," you 17
m, ~
18 know. 18 Q. r~' simple. do )'OU recall Henri wearillg a
19 And so that was like the- first time thAt he was like l
9
s``ooked kind of like tbnt in this terrible
20
ldnd of touching me. And I was like, ooh, this nhlh:e-s me 20
t~uctfon that night?
21
uncomfortable, A,_ifjjjj\. No. I mean~-
n Q. That was in the hotel before you loft? V Q. Okay.
~3 A. That n·as in, tllaf was in the elevatol., And ~23 A. It's a man's sblrt, sn --
24 j
then when \\e were at fhe subway station, be kiml of like
0
~d/24 Q. I understand. So you, your testimony is you
25
had i1is hands on my shoulders and was like poJntin(~ 2
t> don't remember anything from thnt point forward that you
~94 96
Hke 11 Look up, look up," And that matlc me~
1 1 just described --
0 ~ 'J
2
uncomfortable too. A. Uh-huh.
' Q. Now, the thing you're referring t~ Q. ·· until )'Ou get back to the hotel?
• S\lbway station where the murals wero. ' A. Right.
' A. Where the muruls were, o~:~ rain stution. ' Q. So you don't remember drivU1g back to the 80
' And then·· do we need tot~ · uk? ' A. No.
' Q. I'lil sony? Not yet. W& omg to get it in ' Q, ··to New Jersey or anything of that nature?
' about two or three minut[J\0 ' A. No.
'10 A. Okny. So thet pped and wanted to get a ' Q. You don't remember what you ate?
drink at sonte little~£ ike some side· bar, like a sfde 10
A. No.
11
stmt, And l a~ e was like, "I can't dl'lnk 11
Q. Don't remember what you migl1t have drank at
12
anything ci~ Jh•end)' feeling like l can't walk," 11
dinner that night?
" And soh ~a drink, nnd ht: wanted to walk with it
14 on the st · ;f!J. was Jll{C Henri, "I don't think that ." A. No.
Q. Or nnything like that'/
" you'1 wed to do that. 11 " A. (Shaldng heud.)
" e was llkc, ttOh, no, It's fine. It's fine, u " Q. All right. Thls is probably a good time to
n take a break.
" But then I think the bal'teudcl· or the bouncer nt the
" door ended up teiiing him, 11 No, you can't, 11 so he kind of " A. Ol6
A. It,.,. •li!1 A. I heard like the sound of RBhtci{Bcrry camera.
" Q. Like a clicking type of a sound?
A. Like a clicking, Jike the picture sound that~
20 BlackBerry makes when it's taldng a tJicturc.
" 2
Q. Do you recall ·with any degree of specificity
:>. how much time Henri was in your room?
A. No.
"25 Q. You just kno\Y he was there? A. 1 was having picture-s taken of me wllb my
A. I mean, I saw him there. clothes off.
g 98 100
1 Q, So that's how you know he was there, ~1se Q. Okay. Anything else that would lead you to
you saw him? ~> ~ 2
believe you were sexually violated?
A. Right. ~ A. I felt like I had been like touched, but not
Q. You snid you had no clothes fi 4
like~- Hlu~ it didn 1t feellil8 A. 1 said, 111'11 be dowu in te~tes,ll
' A. Yes, ' Q. Okay. At any point that !f!ji
g, did you ask
10
Q. Did the FBI tell you how they obtained them? " him about the previous nl~
H 11
A, They had a search warrant for the technology on A. I didn't ask him a ut t. I said, 11 1 dontt
12
Henri's computer and in his office, and they found them " know what happened, ~twas so Inappropriate. 1'his Is
" on n locked flash ddve. " not like who I 1'\Dl, ~completely unprofessional. I
H
Q. To your kno"1edge, are those the only pictures l4
don't know wba~ ned between us, but I know that it
" he had, that he took of you? " was wrong, 11 0 ~
" A. No. " And I`` ng on my mnl{enp In the car, Rnd I
" Q. Okay. What other pictures were taken ofymt1 " felt Ilk~ s lnnpproprlate, to be out drinking the
10
., A. There were plc1ures taf{en (If 111e in New Orleans. '" night b , and then wake up RDd your boss fs In your
"
21
Q.
Correct?
Okay. New Orleans was a couple oftrips later.
A. Yes,
ij
"
'
ro``
~
then I skpt Inte, nnd then I was In thecnr
;>jon client and puttlng my makeup on In front of
2
" Q. Because it was the last trip out of a sequence Like I just felt like the wholl' situation was
"
~
of four that you were`` 0 incredibly Inappropriate rmd tncl'edibly unprofessional on
" A. Fh·e. .:'! t>, both of our paris, And I dldn 1t know what had happe-ned,
" Q. --with Henri alone.
n c(J but Ilmew thnt at some point I lost control, and I felt
~2 104
' A, With Henri-- no, I wns only with Hem;@lce 1
Uke -~what happened? Like I just, I didn't know. l
' alone, ~\{Jj ' kne·w it was a mistake, nnd I knew it was wrong, but I
' Q. Okay. The New York trip. `` ' didn 1 t understand how 1 got ft•om Point A to Point D.
' A, NcwYorktrlp.
Q. And the New Orleans trip. ~
0 '
5
Q. So you don\ you're not inn position to te1l
" us whether or not what happened between you and Henri
~ that night wa~ consensual. You can'tteU tls, because
' A. And the New Orlenus tri~
Q. The n~i morning, you ~
i.V
1
' and Henri calls you don't remember. Is that fair'?
• you? ' JviR. TODD: Form.
' A. lie knocks on ' THE WITNESS: No.
"u Q. What did you di
¢~
whenheknocked on yollr "
H
Q. (By Mr. Rosenberg) Why not?
door? A. Hyou --I did not eon sent to those pictures
"u A. He was~.{l;'bere nrc yon? Me you ready'/ "u being taken.
Wd'"~ iscllent." And I guess he had been Q. How do you knm\1 You don't remember them belng
" trying tot'..] Q, but I n·as asleep. And so he knocked " taken.
" 011 the nd I kind of cracked the door open. He was " A. I feel like I dOn't hll"i'C to ansWCI' this
" like, 11~ ~e not ready,'' "n question,
11
And 1 was llli:e, "Ob, my gosh, no, I'm not ready.'' Q. I feel like you do.
" So I just' like hopped out of bed and '''as sUIJ -~because " A. The photos were taken without my knowledge.
" J had slept f-or, you know, a good amount of time between "
20
Whether 1 was drugged by Henri, I'm not sure. But I cau
" that, stiiJ kind oflike getting my whereabouts together. tell you in my Ufe, I've: never taken plchtres like that.
" And I just quickly threw on my clothes and like ran " I cnn tell you I would ne,•er consent to h. king pictures
" downstairs mtd JJopped in the car with him. " like that. I would ne\·er consent to hovh1g a sexual
" Q. Okay. So he, yon cracked open the door. He's " relationsl!ip with my boss, being In a sound state of
" asking-- " mind.
" A. "Are }'Ou ready?" " Q, Did you have a SC;"Llnl relationship with your
U.S. LEGAL SUPPORT
RIO GRANDE VALLEY -(800) 881-0670 CORPUS CHRISTI- (361) 883-1716
ANDREA FARMER 7/11/2013
27 (Pages 105 to 108)
105 107
1 boss that night? A. No, because at that tinte, I still dfdn't renJJy
2
A. I don't lmow. remember waking up, becausf- I had been back asleep, and
3
Q. Okay, So you don't know if you consented to be'-'ause of like the hustle- and bustle of me waking up and
4 one or not, because you don't know whether or not you had ~ just, you know, going to get rcady-,.,·lth this client and
5
one. trying to get refl.d.)' and feeling so sick and nauseous A.Dd
6 just \'Cry dlsorlent~d. I didn't, wasn't thinking about
A. Now I·~
MR. TODD: Leading. 1
the picture or waking llp.
THE WITNESS: ··do. 8
Q. Js it fair to say that you didrt~ll the
Q. {By Mr. Rosenberg) How do you know? pictures or remember the pictures-~hc FBI showed
A. Based on (he pictures. Don't you think a 10
them to you? rF~(@"'"
11 sexual relationship is up to and containing som-ebody 11
A, No. ~!
12
taking very explicit naked pldures of you? And don't 12
Q. When was the fi~ne you remembered tl1em?
n you think It is not consensual ifl was un ~·completely 13
A. I think I re~·ed It when we were in the
14
unaware of those pictul'cs being ta]{eo at the tlme? u Connecticut hotet.4hc~{ hAd ldud ofeahued dom1 and n·as
thinking baclt.R_~ut then T rem~mbered •. I didn't
"
16
Q. I understand and respect your testimony that
you don't m:all it. My question to you, and whnt I'm
15
16
que$tion h~"1t, because I remembered looking through
11
examining you about ls to deterrnine how you know, since 11
his pho~'riuiot seeing it, So I thought ma)·be it
.lo )'Ou don't rementber, what you consented to and what you u dldn~ ~u, maybe I imagined it, or marbe it wAs
19 19
didn't consent to. som g else thnt I hea•·d.
A. Thet·c's no WAY of lrnowing. During a, during a visit with !his client, was
"
22
Q, The next day, you're-- do you remember how far
the drive was from the hotel in Newark to-- was it a
zJ client on the docks? Yes?
A. Uh-huh. A, Yes.
" Q, So we're talking maybe 15 mlnutcs) if I'm Q. 1 hate to keep doing that to you.
6 lOB
1 recalling cOJrectly? @l A. Tltnt's ol2
A. ItwasiJkeinAugustor``yeab,ltwasin
3 3
this, but this is not the sort of thing that I do.f' August that" I started inter\'lewing with ADP.
Aud he was like> 11 11\'e ne\'CI'1 ever, ever done Q. That was at the time your employment with
5 anything like this before, eYel'." Like stressing. He 5
Edible was ending.
6
was like, 11 Th is is the first one and, you know, I really A, 1 was stlll wol'klng the-re.
1 lllte you,,. Q. Close to the end, right?
And fnllike, "No, this can never happen ngnin, and a A. Close to the end. I had e:h&kcd out at that
9
we can never talk about this again." point with them. .~
And he's like, "Well, you knO\\'t my DlllJTlage has been 10
Q. Whenyousayyou~out--
11 O\'er fol' a really long time, anrl we dnn't talk, and ,..,.e ll
A, Like I didn't wa~b the~'(!, I didn't want
12 haYe problems.'' 12
to be there. I didn't~ to see Henri. I dldTl't want
anything to do~l·l ~at nil,
And 1 was like, you know} "It 1·ea1Iy just doesn't 13
14
matter to me, any of that, It's wrong, and I don't want H Q. And whc ou check oUI?
15 it to happen again, Rnd I don't want to talk about It 15
A. After<); ew Orleans trip.
16
agnln. 11
Clc'N' H Q, \~s --remind me when it was. I'm sorry.
17 And be's like, 11 WeJ1 11 •• I was jus( like, "I just 17
A. .t ~be beginning of August.
18
u want to keep .om· relationship strictly }Jrofesslonal." n you went from Davidson to LaGuardia, a11d
" And he was Uke, "Well, but I'm Jo-nely1 and I'm an 19
mg about the Marriott··
Right,
2.o affectionate per!lon, And If I want to gh·c you a bug, 20 /r
21
then I still want to be able to give you a bug." ~ , ·• in LaGua(dia, what time of day did ycm
1 was IJke, 11 You know, I really just don't feel ~ivethere?
23
cnmfortable with that. I really just want to keep our t:t ~ A. It was late el'enlng. I think it was Jil Q. On Ute television?
:~. And I was like, "Probably not." ~\Q A. On tlle teJevJsion, And thc-re were a few people
And so that was kind of that, lil, 11 0kay." 11 don•t know. I was just ~stwby does tl1fs ·-like
" So I went and looked at the bottle, and It was a 12
trying to figure itout~d of, you know. Lll'e If you
13
\Yoodbridge Chardonnay, which is IIIH~ 11ngular house 13 Julve n glass nfwln``'s kind of \'lriegared nnd you're
14 that~- I mean, \l"C carried it at the hotel that 1 worked 14
llke tasting it, li~"if vfnegared or is it not
15 at for five years, I'm verr familiar wltl1 the way that 1
1~
~ vinegnred? 0 ©
16 It tastes. And I was like, "Oh, this tastes so gross," So llu~· sips of It just h·ylng to figure out
17
you know. 11
_ ~on with it, nn!l tben I wHs like, "No, I
whatif.''
So I'm kind ofJII'e holding It nnd not drinking It, HI just ~n ·ink this."
19
and lu~lplng Heurl nntlldlld of talking to some other " ~ got down to the bar, the hotel restaurant/bar
20 20
people about the basketball game nnd the concierge, Rlld a 1d I gave it to the waitress nnd asked her to
21 then we dedde fogo downst11lrs for dinner. ~' g me something e[S(\ and she brought men glass of
2
" Q. Let me stop you for a second. ~dwlne.
~1~
A. Uh-huh. Q. So you didn't drink the bad wine?
Q. I don't mean to intem1pt you But have you •• A. Nv. Well, I had f1 few sips of it.
25 yme"e been in the food and beyera.ge bl1slness ;o``" Q. Okay. A few sips is--
"0
~8 120
1
tangentially in different places. llight? ~ ' A. Three.
2
A. Uh-lmh. a!f':z4iJ ';
Q. •• tlOt u big quantity?
3 1
Q. Have you ever had wlne tlmt ~ oxidized? A. No, no.
4
Chardonnay? Q '
5
Q. Okay.
'"~
5 A, It was !Ike barely any-- you eouldll't enn
A. Yes.
' Q. Okay. You know wba\'':\J"~tnstes like? ti ten that I had any out of it.
7
8
A. llight. t9~ 1 7
8
Q. And then you chose vnrletals altogether .. you
switched varietuls altogether.
Q. Have you ever l e that S been, using the
9 tem1 "corked 11 ? ~ ' A. Rlgbt.
10
A. Yes. -~ "u Q. Anything else unusual happen that night?
11
Q. Okay. Y~&'6'w what that is? A. Well, Henri wns Uke ··the concierge lounge
A. Yes.J:._~
12
12 wns nboutto c-lose,nnd we ended up having dinner with
13
Q.~esc ~hat corked wine is. 13
14
these other two gentlemen. They were lll[e, work for this
"
15
A. It' · d of like a, i1 tastes dil'ly.
15
llllblic speaking company.
Q. ' . s not the taste you had? Q. Did you know them before ym1 g-ot tlterc?
"
"
A. ·•
Q. But oxidized? 11
A. Huh-uh. We just started taHdng to them, and 1
don't know how I started talking to them. Dnt I think
1
A. Oxidized is JjJ{e a stronget taste, but this is ~ rna)' be we were still wearing our Edlb1e Software shirts!
19 19 and they asked about it. And so we just got Jn n
not Ute tuste.
20 20
Q. So you, you1re telling the, \vhoever is rending conversation about publlcspealdug. and the)' ended up
21 jolnlug us for dinner,
21
this or listening to it ~-
,
"23 A. I fcellll - just want to see ifl 11
"I need you to bring me those notes Immediately. 11 And so
12 can test your re J6n. Do you remember .any instance H I called the office, nntl Marlene, the front desk--
13 after the tri-st , New York, New Jersey and 13 Q. Finkelstein?
t;l you recaU learning that Henri did J\Ot " A. Yes. She answered, nnd she was like, "l'nl
15
0 }1>U? suppostd to tell you thn.f Henri doesn't wish to talk to
16 16 you."
"
18
And I was like·· I thought, I honestly thought she
A. We bad gotten back flt·lltte 10:.00 a.m., and I wn.sjoklng. Like whatever, like okay, bejustmustbe
19 19 b11sy or joking nrou.nd or something.
told Hend that I wanted to go home and take a nap,
20
because 1 just felt so tired fl·om the fl"ip and And so I \l'as like, "Ob, hR ha. Okay. No, seriously
21
a Cl'Cryfhing, let me lnlk to Henrl. 11
" And M wns like, ''Oh, sureJ sure, SUl"'c.'' Site was like, "No, he doesn't w.ant to talk to you."
"
24
Well~ Jt was my understanding ut the time, nnd it
was similar fo this at Mattress Firm, and I had discussed
And I was like~ 11 \\'bat for? 11
And she Wlls like, "Because you didn't com-e back Into
2 s. 25
this with them U]lOD hiring me, that if l was going to be the orflce."
U.S. LEGAL SUPPORT
RIO GRANDE VALLE.Y - (800) 881-0670 CORPUS CHRISTI - (361) 883-1716
ANDREA FARMER 7/11/2013
61 (Pages 241 to 243)
241 243
CAUSE NO. 2012-65503 FURTHER CERTrFICATION UNDER RULE 203
KERI HILL and IN TilE DISTRlCT COURT
3 Ute original deposition was/was not returned to the
MICHELLE BARNETT I 4
Plainliffs § deposition officer on_-;--,=---=-.,-----
§ Ifretumed, the attached Chlillges illld Signature page
6
vs. § 5STII JUDICIAL DISTRICT contains any change.s and the reasons therefor; if
1
§ rehliiled, the original deposition was delivered to
HENR1 MORRIS and SOLID § " MR. GREGG M. ROSENBERG, Custodial Attorney;
' SOFnVARE SOLUTIONS, INC.• 9
That $ is the dep`` officers charges
d!b/a EDIBLE SOFfWARE § 10
to the Defendant(s) for preparing_~&Original deposition
Ddendants § HARR.lS COUNTY, TEXAS 11
transcript and any copie.saf ~'iS;
12
That the deposition w ered in accordance with
REPORTER'S CERTlFICATFJFILlNG CERTIFICATE 13
Rule 203.3, and that a co this certificate wns
ORAL AND VIDEOTAPED DEPOSmONOF ANDREA FARMER 14
JULy ll, 2013 served on all parties s!m herein and filed with the
15
clerk. o~y-
11 I, MOLLY CARTER, Certili~d Shorthand Reporter in_ and 1' Certified to lw..&'1ws _ _ day of _ _ _ _ __
u for The Slate of Tens, hereby certify to 1he following: "2013. ,~
n That the witness, ANDREA FARMER, \\ru du!y swom by " 0~
~Q
14 the offiecr Wld that the tra!lScript of the ornl
1
~ Ueposhion is n true record of the testimony Biven b}' the ::
E \\ilness;
0
~ ~M~O~L,-Ly=c"AR"TE=Rc-,-=cs=Rc-,-=RP-:R,~C"'R"R
11
18
That the deposition transcript was submilled oo_
to the witness or 10 the attorney for the
" "~ CSR NO, 2613, Expires 12-31-13
22
19
witness for ex!lmfuation, signature and return to U.S. 1;,~- U.S. LEGAL SUPPORT
2 (1 Legal Support by _ _ _ _ _ __; ~i.Qr Fim1 No. 342
11 Tlmt the amount of time used by each party at the ~ 802 North Carancahua, Suite 2280
22
deposition is as follows: 0
rf!:;;> Corpus Christi, Texas 78401
" 1\iR. JEFFREY N. TODD; (00:00) C'"d< Telephone: (361) 883-1716
" :MR. GREOO M. ROSENBERG: (03: 15) Fa" (361) 888-6550
" lviRDANCOGDELL: (01:26)
"
42
1
That pursuant to infonnaticn given to the depos~
Q
officer at the time said testimony was laken,~e
following includes all parties of record: ``
MR. JEFFREY N. TODD, Atlomey tift1s)
~GREGGM.ROSENBERG,A n yforDefendant(s)
MR. OAN COGDELL, Attorney De'fendant(s)
J ·further certify that I am neither l for,
0
related to, nor employed by any m-ties or
9
attorneys in the action in wl ·
10
taken, and further that 1am nncially or otherwise
11
inlere.sted in the outcom~he action.
12
Further certific~t!``~rements pursuant to Rule
13
" occurred.
1
~
#
203 ofTRCP will ~'fted to after they have
Certified to . this 22nd day of July 2013.
"
" ``
" Finn No. 342
, 802 North Carancahua, Suite 2280
Corpus Christi, Texas 78401
" Telephone; (361) 883-1716
Fax; (361) 888-6550
"
"
U.S. LEGAL SUPPORT
RIO GRANDE VALLEY -(800) 881-0670 CORPUS CHRISTI - (361) 883-1716
Beth Jackson
July 24, 2013 Job No. 14756
Page 1 Page 3
NO. 2012·65503 1 INDEX
KERl HJLL and MICHELLE 'IN THE DJS1RICT COURT OF 2
BARNETT Stipulations......................... ........ 1
3 Appearances............... ,................... 2
4
v. 'HARRIS COUNTY, TEXAS BETII JACKSON
5
HENRl MORRlS and SOLID Examination by Mr. Todd.................. 4
SOFTWARE SOLUTIONS, INC., 6
dlb/o EDIBLE SOFTWARE ' 55TH JUDICIAL DISTRICT 7 SignaiUre and Changes ............. ,.......... 128
Reporter's Certificate....................... ~
0
(eY~
ORAL AND VIDEOTAPED DEPOSITION
OF BETH JACKSON
9
10
11
12
NO. DESCRIPTION
(No exhibits marked)
EXHIBITS
u
REQUESTED DOC~NTSffi'.IFO.RlvrATION
``PAGE
~
~
JULY 24,2013 13
NO. DESCRIPTION PAGE
****+++++**********************************************
ORAL AND VIDEOTAPED DEPOSITION OF BETH
14
15
(None) 0 J/i3
JACKSON, produced as a witness at the instance of!11e
16
C~QUESTIONS
PlaintiffS and duly sworn, was taken in the above
styled and numbered cause on July 24, 2013, from 10:02 NO. (~ PAGE/LINE
a.m. to 12:3& p.m., before Amy J. Doube-nmier, CSR, in 17 <> fu
and for the State of Texas, reported by machine 18 (Non~
`` !Q)i(p}
shorthand, at the offices of Rosenberg & Sprovach, 3555
Tinuuons LMe, Suite 610, Houston, Texns, P'Lirsilant to
the Texas Rules ofCh•il Procedure and the provisions
ri'
stated on the record herein.
~f!
1
Page Page 4
1
2
APPEARANCES g 1 THE VIDEOGRAPHER: Today's date is July
3 FOR 1HE PLAINDFFS: @ 2 24th, 2013. The time is 10:02 a.m., and we're on the
4 Mr<.JEFFREVN. TODD ~o,_,ifJ 3 record.
STATE BAR Nffi..ffiER 24028048 '-.'-'.>
4
(\Q~
5 THELAW:FIRMOFALTONC.TODD BETH JACKSON,
6
312SouthFriendswoodDrive
Friendswood, Te;o;as 71546 ~
· 5 having been first duly sworn, testified on her oath as
Telephone28l.992.~G33 ......_~
6 follows:
7 fit'\ 2!31.648.13633 ~ 7 (The time is 10:03 a.m.)
E~mailjeff@acHaw.com ~ 8 EXAMINATION
~
8
9 FOR THE DEFENDANTS' (f' 9 BYMR.TODD:
10 MR. GREGG M. ROSENBERG ~) 10 Q. Good morning, ma'am.
ROSENBERG & :SPROVACH ~
11 3555 Timmons Lme, Suite 610 ,~ 11 A. Good morning.
Houston, Texas 77027 <>~(Qr 12 Q. Can you, please, state your full name for the
12 Telephone '1U.960.&300 tP ~ 13
... 71l.6Z!.6670 "If~
record?
13 E-mail grcgg@rosenberglaw.~ 14 A. Beth Ann Jackson.
14
15
THE VIDEOGRAPHER' !!:::rg 15
16
Q. And, Mrs. Jackson, my name is Jeff Todd, and
you and I met briefly at Andrea Farmer1s deposition,
MR. JOSEPH TAVJ.~ 17 correct?
16 FOX REPORTIN~
4550 Post Oak Place, Suite 201 18 A. That is correct.
17 Houston, Texas 77027 19 Q. And I know you sat in for some of that, so you
Telephone 713.622,1580
18 20 kind of saw a little bit about what all is involved
19 ALSO PRESENT: 21 with a deposition, correct?
20 MR. TREVOR MORRIS 22
21 A. Yes, sir,
22 23 Q. Have you ever given a deposition?
23 24 A. No,sir.
24
25 25 Q. Okay. I'm sure, after seeing that with Andrea
1 (Pages 1 to 4)
I~ l T I I
I~ --=-
c..J _ _
Electronically signed by Amy Doubenmler (201·0B3·9B3·52•11fiememllllimi!lli!E.I' 7 5 bO 8e32·ddf1-4170-ab20-0 67220224a62
Beth Jackson
July 24, 2013 Job No. 14756
Page 21 Page 23
1 A Yes, sir. 1 with prepping you for this deposition. Is that
2 Q. And is Edible Software still located there •• 2 correct?
3 here in Houston? 3 A. No, sir.
4 A. In Houston, yes. 4 Q. What was the purpose of you attending Andrea
5 Q. Okay. And where are you ``where do you 5 Fam1er's deposition?
6 currently reside? 6 A. As a corporate representative.
7 A. Cumming, Georgia. 7 Q. Okay. Are you actually employed by Edible
8 Q. Okay. W1lere your company is? B Software? "'L
9 A. Yes, sir. 9 A. No, sir. ~
10 Q. How many employees were there at Edible 10 Q. How would you ``rporate representative of
11 Software. if you know, at the time you came down in 11 Edible Software, ify~liOt employed by Edible
12 December of2004?
13
12 Software? ~
A. Ten, 12. I mean. that's a guesstimaticm. 13 MR. RQ ERG: Object to form.
14 Q. Thafs fine. So, you meet Henri in pers011 at 14 Q. (BY D) I'm just trying to
15 Thanksgiving. You come down in December. Did you come 15 understand --, se I heat· you say, 1\ve" and things
16 by yourself or with anybody else from Culinary Masters? 16 like that. ~ 0
17 A. By myself. 17 A. ~
18 Q. Okay. And did you meet with Trevor on that 18 Q. ~l'i\st t1ying to understand the
19 occasion? 19 relati~•P·
20 A. Jdon't recall meeting with Trevor. I was 2 0 ~I have a longstanding working relationship
21 there for training, specific training, on how to get 21 his company. I do a lot of consulting internally
22 the software up and rmming. 22 e company as well as the clients ofEdible
23 Q. Okay. And how long did that trip take? 23 vare.
24 A. I think l was there for two days, if! :1!~ Q. Okay. Do you have any other consulting jobs,
25 remember correctly. othe1 than Edible Software?
;;
Page 2~f!J Page 24
1 Q. Okay. Did you go out to dinner with Henri org 1 A. Currently, no.
2 anyone else? @; 2 Q. Okay. Have you in the last couple of years?
3 A. With Henri, yes, I did. . "`` 3 A. No, sir.
4 Q. Did y'all have drinks? ~ 4 Q. So, Edible Software has been your sole client?
5 A. Yes. \U 5 A. Right now, yes.
6 Q. Do y~u recall where y'aU went~· dt'mier? 6 Q. And Edible Software has been your sole source
7 A. No, str, I do not. 7 of income tbr the last couple of years?
8 Q. Did he ever handle any ofy~ri ks that 8 A. Yes.
9 evening? . rF \\)"' 9 Q. Okay. Has there ever been a discussion about
10 A. No, su·. ~! 10 actually betng brought on as an employee of Edible
11 Q. Okay. Other than talkllw. to counsel kind of 11 Software?
12 generally about what a ddon is, did you do 12 A. Yes.
13 anything else to prepal'J).I!l1J1i)our deposition here 13 Q. And when did those discussions take place?
14 today? -~ 14 A. They1ve taken place over the our period of
ww
15 A.. I met with ~'osenberg yesterday, and that 15 our vendor rchttionship. Yes.
16 wastt. ~ 16 Q. Okay. Is there .. what's the .. is there a
17 Q. For hm.v~ug? 17 sticking point, so to speak, or wlmt's the-- it just
18 A. I was l~hree hours .. was I -· 18 never really progressed further than discussing it?
19 approximately. 19 A. There's no real sticking point, no. It just
20 Q. Okay. Had you ever met with Mr. Rosenberg or 20 --we talk about Hand then do something else. You
21 Mr. Cogdell at any other tune, prior to yesterday, in 21 know what I mean? You get hung up with another client
22 preparation for your deposition? 22 or whatever and just .. no sticking point as to why it
23 A. No, sir. 23 hasn't happened. No, sir.
24 Q. Okay. Other than you traveled with them for 24 Q. Okay. Do you have any idea why it hasn't
25 Andrea Farmer's deposition. But that had nothing to do 25 happened?
6 (Pages 21 to 24)
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Page 25 Page 27
1 A. It's just no. I mean, there's no
RW 1 A. Yes.
2 particular reason. No 1 sir. 2 Q. Andrea Fanner's?
3 Q. l mean, if you became an employee of Edible 3 A. Yes.
4 Software1 would you get benefits, health benefits, if 4 Q. And that's it?
5 you know? 5 A. Stacy Stewart ••
6 MR. ROSENBERG: Form. 6 Q. Okay.
7 A. Yes. 7 A. ··Brannen DeVille··
8 Q. (BY MR. TODD) Do you have any health benefits 8 Q. Okay. ~
9 through your cmTent company? 9 A. -- Diedre MacLeoud~"mantha Gluck.
10 A. I have health benefils through my husband. 10 Q. Okay. Have y;;:;.&@wed any of the deposition
11 Q. Okay. Do you know of any other additional 11 testimony that has be ';;)8~ided in this case to date?
12 benefits, other than health benefits, that may be 12 o 't, ot all of it.
A. A little bil't
13 available tlu·ough Edible Software? 13 Q. Which d '· n testimony have you reviewed?
14 A. I'm aware of what they have for health plans 14 A. Keri Hill,_~ ·Michelle Barnett.
15 and dental plans. Yes. 15 Q. OkaJ'·~" haven't reviewed Andrea Farmer's?
16 Q. But any 401(k)s or any profit sharing or 16 A. N~
17 an)1hing like that? 17 Q. ~ Okay. Now, I'm jumping back to-· you
18 A. rm not a hundred percent familiar with 1B come}ll:!;Iouston. You have the trah1ing for two days.
19 evet)1hing that they have to offer. 19 Y~o dinner with Henri. Yon did have drinks with
`` ~Yes.
20 Q. Do you expect to continue having discussions
21 with Edible Software about having a more perman_ent
22 relationship as an employee? 22 ~ Q. What·· do you recall what you drank?
23 A. 1 anticipate we will. 23 A. I drank vodka and cranberry. So, I have to
24 Q. Okay. Do you know ·when that may occur? ~ assume. But, I mean, that's just the drink I drink.
25 A. No, sir. Q. Got you. Any pa•1icular vodka or just kind of
ri
Page`` Page 28
1 Q. Other than meeting with counsel, did you go Q 1 house or whatever they have on hand?
2 over any documents in preparation for today's ·'Q(@ 2 A. ABSOLUT.
3 deposition? .6 A. I drink on a daily basis.
7 A. That's fine. ~ 7 Q. Okay. And how many drinks a day would you
8 Q. You've already seen that, th ' gone from 8 say?
9 one thing to another. I mean, y attorneys ask 9 A. Two to three drinks.
10 about preparation at the very b · 1ing1 and, you know, 10 Q. Have you ever thought to yourself or has
11 I'm several questions in. ,~ 11 anyone else said to you that you may have a drinking
12 A. That's ok~y. 0
~(Qr 12 problem?
13 Q. But you didn'``~r any documentation in 13 A. No, sir.
14 preparation for toda~"'G@osition? 14 Q. Okay. Have you ever attended an AA meeting?
15 A. Nothing. g 15 A. No, sir.
16 Q. Okay.~@)iou reviewed any of the statements 16 Q. Have you ever gone into any other treatment or
17 that have be o'Vided by Ked Hill, A11drea Farmer, 17 anything else to discuss drinking> as far as a possible
1B Michelle Barne or anyone else involved in this 18 problem?
19 matter? 19 A. In reference to myself?
20 A. Yes. 20 Q. Yes, ma'am.
21 Q. Okay. Whose statements have you read? 21 A. No, sir.
22 A. The women you just listed. 22 Q. Okay. How about with anyone else?
23 Q. Okay. Keri Hill's, correct? 23 A. I am familiar with the AA program due to
24 A. Yes. 24 family members. Yes.
25 Q. Michelle Barnett's? 25 Q. Okay. And I don't want to delve into
7 (Pages 25 to 28)
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Beth Jackson
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Page 29 Page 31
1 individuals, but has there •• is there alcoholism 1 A. Absolute!)'·
2 within your fumily? 2 Q, Okay. How would you describe Henri's
3 A. Yes, sir, there is. 3 tolerance, if you can, for alcohol?
4 Q. Okay. Do you think alcohol has negatively 4 A. Vety good.
5 impacted your life in any way? 5 Q. Okay. Meaning: Do you notice any changes in
6 A. No> sir. 6 Henri after three drinks?
7 Q. Okay. How about drugs? Do you take illegal 7 A. No.
8 drugs? 8 Q. Okay. Do you notice ..,,Rchanges in Henri
9 A. No, sir. 9 after five drinks? ·~
10 Q. Okay. And are you under any medicadons here 10 A. I can't say that I ``e.r seeing him
11 today that may affect your ability to tell the truth or 11 consume five drinks, b w• 1e never seen a change in
12 understand my questions? 12 his demeanor when,~r traveled with him drinking.
13 A. No, sir. 13 Q. Ever? " (\Ji
14 Q. Okay. Are you under any medication at all? 14 A. Not that ``ecali. No, sir,
15 A. I take a thyroid medicine. 15 Q. Okay. u think he has been with you and
16 Q. Okay. And Is that a daily medication? 16 he has s~ ge in you from your drinking?
17 A. It's an every-other-day. 17 jl.OSENBERG: Object to form.
18 Q. Okay. You go to dinner with Henri, and then 18 A. ``t answer that.
19 you head back to Atlanta? 19 ~Ql ~MR. TODD) Okay, Whenyou'vebeeninhis
20 A. Yes, sir. 20 e, have you felt different after consuming
21 Q. When was the next occasion you met with Henri 21 ?
22 or Trevor in person? 22 Q . No different than when I would drink by
23 A. Like I said before, I believe Henri visited 23 . ~yself.
24 om offices in 2005> shortly after we went through an f@ Q. Okay. You indicated you gave a statement to
25 implementation. the FBI. And that was in their offices?
((
-
Page 3~d Page 32
1 Q. Okay. And was he alone? .g 1 A, Yes, sir.
2 A. Yes, sir, he was. , ~ 2 Q. Did you give any other testimony?
3 Q, Okay, And after that meeting with f!~id 3 A. l'vegivenagrandjurytestimony.
4 -- or when he came to the offices in 2005~"811 go 4 Q, Okay. When you went to dinner with Henri
5 out to dinner? () 5 Morris in 2005, did he handle your drinks at all?
6 A. Yes, sir. I believe we did. '\:. 6 A. No, sir. We were in a restaurant.
7 Q. Okay. And did y'all have dr``ll 7 Q. Okay. And at that point you have only met
8 A. I believe we did. `` 8 Henri two times in person?
9 Q. And I know vodka and b rry is your drink 9 A. In person, yeah. Probably that is correct.
10 of choice, Does Henri have a ·· of choice? 10 Q. And how would you describe y'alt's
11 A. He's normally a bourllbn drinker·- 11 relationship at that point?
12 Q, Okay. ";{(IY 12 A. A business relationship.
13 A. •• or a gin dr~· 13 Q. Okay, After that meeting, did you ever meet
14 Q. And kind of back to you: I know that 14 with Trevor or Henri in person again, prior to leaving
15 you've indicated Y'\I[J. on a daily basis. Do you 15 Culinary Masters?
16 know what ln~nen I speak about, like, tolerance 16 A. I don't believe I've ever met with Trevor,
17 levels? ~- 17 I -- well, 1 take that back. Trevor and Charles and
18 A. Uh-huh. 18 Henri were in town for a trade show. I believe I met
19 Q. You'r~ a very fit, in-shape person. Do you 19 them. It was in the fall-- it would have had to have
20 consider yourself to have a low tolerance, average 20 been in the fall, But, yes. I met with Henri several
21 tolerance, or high tolerance} as far as alcohol is 21 times before I left Culinary Masters.
22 concemed? 22 Q. In person?
23 A. I have a decent tolerance for alcohol. 23 A. Yes, sir.
24 Q. Okay. Despite your slight frame, you think 24 Q. Okay. In Atlanta or here in Houston or both?
25 you can handle a couple of drinks? 25 A. It was in Atlanta.
8 (Pages 29 to 32)
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Page 33 Page 35
1 Q. Okay. Tell me who Charles is. 1 with another travel compm1ion?
2 A. Charles Butler is our vice president of sales. 2 A. Not that! recall. No, sir.
3 Q. Okay. And is he still working for Edible 3 Q. Okay. Do you know if Henri is married?
4 Software? 4 A. Yes, I do.
5 A. YesJ sir. 5 Q. Was he married at that time?
6 Q. Who is Allan Morris? 6 A. Yes, he was.
7 A. Allan Morris Ls Henri Morris,s son. 7 Q. Do you know his wife's name?
8 Q. Okay. And does he work at Edible Software? 8 A. Ruth. ~
9 A. Yes, sir. 9 Q. Do you .. have you&'t>met her?
10 Q. And what's his job title? 10 A. Yes. ``~J;f
11 A. He 1s our human resource director. 11 Q. When was thelifrst'lime you met her?
12 Q. And what is Trevor Morrls'sjob title, if you 12 A. Itwouldha"$,._hliiflohavebeenin2007.
13 know? 13 Q. Okay. AJ!~Y do you say, "It would have had
14 A. He is our CEO. 14 to have been~' ~'
15 Q. Okay. When did he become the CEO? 15 A. 2007, . Because that's when I sta1ied
16 A. Within the last, I think, 90 days. Sixty days 16 consulti _o~0 em. in 2007.
17 probably is more accurate-- 60 days. 17 Q. Q' So, when you left Culinary Masters and
18 Q. Okay. Who was the prior CEO? 18 1
starte~'Wown consulting business in 2006, who
19 A. That was Henri's title. 19 w~.`` who were your clients at that time?
20 Q. Okay. And, again, let me just talk briefly 20 -"'~ I started my corporation b1 2006. I started
21 about some of these. When they came in in the fall for 21 ~ulting the beginning of the second quarter of2007.
22
23
the trade show, it was just those three gentlemen that
you recall?
22
23
Q Q. Okay. And who was your client at that time?
A. I had several clients locally.
24 A. Yes, sir, that I recall. Q. Okay. And was Edible a client at that time?
25 Q. Did y'all go out to dinner? A. Yes. on a part-time basis,
ri
Page 3~"o,!J Page 36
1 A. Yes, sir~ we did. ©; 1 Q. Okay. An3 A. I believe so. ,,8 A. I believe J was out of town th)l eekend otl n 8 A. I transitioned around 2009.
9 business trlp myself. tF 0 9 Q. Did you leave Culinary Masters on good terms?
10 Q. So, you didn 1t meet witWtlJm? 10 A. Culinary Masters was purchased by another
11 A. No, I did. ~ 11 company.
12 Q. Okay. o~Qr 12 Q. Who were they purchased by?
13 A. When I retun`` into Atlanta, they were 13 A. Atlanta Foods International.
14 still .. I met them fo · er upon my return. 14 Q. And did they decide to retain you, or '''hat
15 Q. Okay. Sor~ t that. Pardon my confusion. 15 happened?
16 And then aft~er ``ade show meeting, when did yon 16 A. Yes. 1 stayed on thrm1gh the transition.
17 next meet w - ~'rlri? 17 Q. Okay. And then what were the terms of your
18 A. Henri ha been to our offices in 2005 and 18 separation?
19 2006. I don't recall the exact months. 19 A. I chose to separate.
20 Q. And on those occasions, did he travel alone, 20 Q. Okay. Between2007 when you first started
21 or did he have another individual with Edible Software? 21 working and doing work on your own and 2009 when you
22 A. He was traveling alone. 22 transitioned into working almost exclusively ·with
23 Q. Okay. Other than the trade show time, did 23 Edible, did you have in-person meetings with Henri?
24 Henri ever come to-- while you were at Culinary 24 A. Yes.
25 Masters, did Henri ever come to Atlanta to visit y'aU 25 Q. Would you travel to Houston at that point?
9 {Pages 33 to 36)
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Page 3'1 Page 39
1 A. I traveled to Houston. Yes. 1 A. Yes, sir.
2 Q. Okay. And would he travel to Atlanta? 2 Q. And what is that flat retainer amonnt?
3 A. No. 3 A. Currently?
4 Q. Okay. Would you go on any other business 4 Q. During 2007.
5 trips with Henri at that time? 5 A. That I don't recall exactly.
6 A. Yes. 6 Q. Okay.
7 Q. Between 2007 and 2009, how often would you 7 A. Probably around three·· on a part·time basis
8 accompany Henri on business trips? 8 it was probably around tl~ $4,000.
9 A. I can't give you an exact number. 9 Q. Pel' month? r&f![(;,
10 Q. Once a month? 10 A. Pennonth. ``
11 A. It could have been. 11 Q. Okay. What \i:boi)r•os?
12 Q. Okay. And what was your role when you 12 A. I believe it'i'!J~ed a little bit. I don't
13 accompanied him on the business u·ips? 13 recall the exacl,roff,;pi'er amount. So, it's in the··
14 A. Business analyst and the •• we would go to do 14 it was still inJ!ie~,000 range ••
15 .. business analyst and training and that kind of 15 Q. Okay,~
16 stuff. 16 A. ~range. The rates changed a couple
17 Q. Okay. So, you would assist in meeting with 17 oftime~pologize. !just don't recall.
Q ~JUSt hying to get a general idea.
18
19
potential clients or existing clients?
A. Yes.
18
19
1
``eah. It's··
20 Q. And you would assist in analyzing a potential 20 ,"'-~ I'm not going to cross-examine you at trial
21 client's business to see how Edible could assist them? 21 !@"say, "You were $10 off."
22 A. Yes. 22 ~ A. Yeah.
23 Q. You would also assist with making sure 2 ~ib Q. So, I assume in '09 it changed because you
24 existing clients were doing well and implemented the ~Jtj~dJ transilioned.
25 software and using it correctly? A. It changed in '09 and 'I 0. And I'm sorry. I
li
Page~,!! Page 40
1 A. Correct. © 1 don't rccalJ the exact. There was a significant change
2 Q. Okay. And I don't want to .. well, how,~ 2 in rate around that 2009 area, because I was going
3 you being paid at that time? _!);,~ 3 fbll-time.
4 A. I invoiced the company. ~ 4 Q. Okay.
5 Q. Okay. I mean, is it weekly, hour~ary? 5 A. I want to say it was probably around $6,000 a
6 How-· what's the stmcture? ~ 6 month``
7 A. I have an agreed amount ret · 7 Q. Okay.
8 Q. Okay. I mean, is that per ' ss trip or 8 A. .. give or take.
9 per month or .. {jj 9 Q. And this is 2009?
10 A. Per month. ~/ 10 A. '8 or '9, yeah.
11 Q. Okay. So, each mot~'all have a retainer? 11 Q. Okay. And then what about '1 0?
12 A. (Witness nods.) o;{({J" 12 A. In' 10 it went to approximately 8,000 a month.
13 Q. And then do il\``'rby the hour against that 13 Q. Okay. And what about 'II?
14 retainer? ~ 14 A. It's been constant give or taken couple
15 A. No, sir. Ji:Ji 15 hundred bucks since 2010.
16 Q. ?kay``o you bill •• do you bill against 16 Q, Okay. And that's up until present?
17 the retamer, ·) u JUSt .. 17 A. Correct.
18 A. I have a , at retainer. 18 Q. Okay. Can you tell me how Edible Software is
19 Q. Okay. And that flat !'etainer, one month if 19 doing since Henri's arrest?
20 you work, you know, ridiculous hours, it's sUI! that 20 A. We are doing very well.
21 flat amount? 21 Q. Okay, I mean, it hasn't changed the business?
22 A. Yes, sir, 22 A. No,sir.
23 Q. And if the next month you don't work as much 23 Q. I mean, other than, obviously, you know,
24 and only do one business trip, it's still the flat 24 Trevor is the CEO. !just mean financially y'all ..
25 retainer? 25 Edible Software is still doing really well?
10 (Pages 37 to 40)
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Page 49 Page 51
1 A. No. 1 A. Last year.
2 Q. Okay. 2 Q. I take it Trevor is aware ofthis
3 A. Currently, no. 3 relationship.
4 Q. Okay. Has It ever been an>1hing more than a 4 A. Yes.
5 professional relationship? 5 Q. And he didn't become aware of that here in
6 A. Yes. 6 this room today. Is that correct?
7 Q. Okay. How so? 7 A. That is correct.
8 A. I've had a personal relationship with Mr. 8 Q. Do you know whe1~ecame aware of the
9 Morris. 9 relationship? rj;;"'
10 Q. ''Personal" meaning y'all have done non-work 10 A. Last year. if.";}'!
11 vacations or visits or personal in what way? 11 Q. And who tol~'l
12 A. I had a personal relationship with Mr. Morris. 12 A. I'mnotce~
13 Q. When did •• when would you say your 13 Q. Wasil``
14 relationship with Mr. Morris became personal? 14 A. No, si~'\'iild not.
15 A. My relationship with Mr. Morris became 15 Q. W!~the one that told Ruth?
16 personal in late 2005 or somewhere in 2005. 16 A.``:
17 Q. Okay. And that-- so, that was while you were 17 Q. ~·;:r'"n aware of the relationship?
18 still working with Culina•y Masters? 18 A"`` not know.
19 A. That is correct. 19 ``at about Mr. Butler?
20 Q. And when you say, 11 personal" does that mean 20 -~ I do not believe so.
21 intimate? 21 A«?jjfj_. And this physical, sexual relationship started
22 A. Yes. 22 '¥n2005?
23 Q. Did you and Henri have a physical 231@ A. Yes.
24 relationship? ~;`` Q. And hO\hV long did that relationship conthtue?
25 A. Yes. "r~'l;. A. 11troug approximately2011.
Page 5~c/ Page 52
1 Q. Did you and Henri have a sexualrelationshi?k"© 1 Q. Okay. And what happened in 2011 for it to
2 A. Yes. pffy 2 cease?
3 Q. Did that include sexual intercourse? J(;,~ 3 A. It was my personal choice and HenrPs personal
4 A. Yes. ~ 4 choice.
5 Q. \Vere you married at the time? Q 5 Q. Okay. Are you all right to go forward?
6 A. Yes. ~"' 6 THE VIDEOGRAPHER: Can we take just a
7 Q. Was he married at the time? <6"1 7 real quick break?
8 A. Yes. `` 8 THE WITNESS: I would like to take a
9 Q. Had you-- was your hus~f(ftQ •are of this 9 break. Yes.
10 sexual relationship? `` 10 THE VIDEOGRAPHER: The time is 10:54
11 A. No. .~ 11 a.m., and we're off the record.
12 Q. Is he awru·e now? ·~if); 12 (Short break taken from 10:54 a.m. to
13 A. Yes. ,_5 A. It was not discussed with me.
6 Q. When you and Henri would~. a e'ffugether, 6 Q. Okay. Have you ever seen Henri take any
7 would y'all stay in separate rooms or- same room? 7 medications?
8 A We had two separate rooms C5 8 A. He takes heart medicine.
9 Q. And how frequent wot!!d'~ engage in sexual 9 Q. Okay. Any other medications, to your
10 intercourse? ~! 10 knowledge?
11 A Mr. Todd, I can't~iv u an exact number. 11 A. Not that 11m aware of, no.
12 Not every time we staye ther, not necessarily. 12 Q. Okay. H"''e you ever-- well, strike that.
13 Q. Okay. The P1~ tat we've talked about, 13 Back to the purpose ofthe pictures and
14 were those done wi``i,~qur consent? 14 assisting him with his arousal problems: Was your
15 A Absolutely.g 1.5 intent that he would look at the pictures to get
16 Q. And w~s the reason for taking the 16 aroused and then go have relations with his wife?
17 pictures ofy~'You were naked? 17 A. Would you repeat your question, please?
18 A. Yes, sir. ~1 was naked. 18 Q. Yeah. I'm just trying to understand the
19 Q. Were y'all in the pictures together? 19 intent there. I mean) you suggested it. So, you're
20 A. No. 20 the one that thought, "This may help you," Did you
21 Q. They were just pictures ofyou7 21 have any inkling that pictures of a naked person helped
22 A. They were just pictures of me. 22 Henri get aroused?
23 Q. Full body shots? 23 A. I had no --1 had no reason to believe. No.
24 A. No. There's my face is concealed.
ww 24 I had no knowledge.
25 Q. Why is that? 25 Q. Had you ever let anyone else take pictures of
14 (Pages 53 to 56)
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Beth Jackson
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Page 57 Page 59
1 you naked? 1 wife, correct?
2 A. No. 2 A. My understanding, yes.
3 Q. Henri is the only person that's taken pictures 3 Q. And, so, you suggested to him, "Take these
4 of you naked? 4 pictures of me with a concealed face. Take these naked
5 A. Yes. 5 pictures of me, and it will help you, or it may help
6 Q. Is your husband aware of the pictures? 6 you with your arousal problems."
7 A. I told him. Yes. 7 A. I suggested it, Mr. Todd.
8 Q. Okay. And you suggested that he take these 8 Q. Okay. So, the next s~: How is it going
9 pictures to assist him with his arousal problems. What 9 to actually help him with ``1'0usal problems?
10 were you thinking he would use the pictures for? 10 Because his arousal prQ:i&~ are at the time he's
11 A. Would you break down your question? 11 trying to have relatio~"lh his wife. Is that
12 Q. Yeah, because I'm m.issing something. I'll 12 correct? ~
13 just go into detail. Did you think that he would be in 13 A. Well, pe.!ni,lle ··I mean, sir, 1 didn't
14 bed with his wife and pull out the pictures to get 14 give·· you'r~a me to answer a question on a
15 excited? 15 presumptio sorry. My thought was: If it would
16 A. Sir, l really didn't --this was a private 16 help hil J'~ ld help him.
17 conversation between Henri and I that transpired. And 17 Q. Rf,h)l ~
18 that's his personal business. I didn't really think 18 A.`` can look at the pictmes beforehand, it
19 about how he or when he would, but, obviously, I 19 m~p him. Okay?
20 suggested it, because I thought it might help him. I 2 0 ~ That's what 1'1i1 getling at.
21 can't give you any more detail than that. 21 ··1) • Okay. That is my intent. I'm sorry. I'm not
22 Q. I mean, you weren't saying it in jest; were 22 ;;:;] rying to be difficult.
23 you? ~ Q. No. No. I mean, you made the suggestion.
24 A. No. So, I'm thinking you thought in your mh1d •.
25 Q. You were seriously atlempting to help him with If' A. My .. if he can look at tills, he can, perhaps,
Page ~· Page 60
1 his arousal problems? © 1 get aroused or whatever. I mean, I'm --that was my
2 A. Yes, sir. , @ 2 tl1inking.
3 Q. Okay. And you made the suggestion_;1lt"\f,~,. 3 Q. That's the clarity I'm seeking.
4 mind, what were you thinking these picture~1kt do? 4 A. Okay.
5 A. Help him g(;t an erection. \U 5 Q. When you said, "Hey, maybe you should take
6 Q. Okay. And he needed an ere~ti at'the time 6 these pictures of me. It may help you with arousal,1'
7 he was going to have relations with hl · e, con-ect? 7 your thought process was, you know, 111ust beforehand
8 Right? QjC) 8 you look at these `` you get aroused when you1re with
9 A. Yes. rF ~ 9 me. So, you would get aroused by looking at these
10 Q. I mean •• ~1 10 pictures just beforehand, and then go in and do ym1r
11 A. I would assume. ~ 11 thing." Is that ••
12 Q. •• it would do him0~'gbod to be aroused with 12 A. I mean. I wouldn,t --I'm not going to accept
13 his wife, to be in A~loking atthe pictures, 13 your words, but my intent was for him to be able to
14 when she1s here in n, Texas. Is that correct? 14 look at the pictures and hopefully be aroused. Ycs.
15 A. I'm sorry. ~ ou repeat what you just said? 15 Q. Do you know if he ever utilized the pictures
16 Q. Yes."`` 16 for that purpose?
17 A. And ~('trying to be difficult. I'm 17 A. My understanding, yes.
18 sorry. 18 Q. And did it have its intended effect?
19 Q. I understand. I told you I would ask you 19 A. Sometimes, I think.
20 confusing questions. Because I am honestly just-- it 20 Q. Okay.
21 makes absolutely no sense to me. 21 A. But I don't know exactly. Sometimes.
22 A. Well, I'm sorry for that. 22 Q. Do you have copies of those pictures?
23 Q. But eve1ybody is different. That's why I'm 23 A. No, sir, I do not.
24 just trying to figure out the thinking. You thought·· 24 Q. Did he ever give you copies of those pictures?
25 you understood he was having arousal problems with his 25 A. No, sir, he did not.
15 (Pages 57 to 60)
FOX REPORTING
(713) 622.1580
81ectronlcatty signed by Amy Doubanmier (201 ·083-983·5249) 75 bO 8o32-ddf1 -4f70-a b20·067220224a62
Beth Jackson
July 24, 2013 Job No. 14756
Page 61 Page 63
1 Q. Does he still have those pictmes? 1 then"attorney discussing--
2 A. They "-I don't know that. 2 A. Yes, I did.
3 Q. Okay. I mean, do you know ifthey were 3 Q. Okay. Did-- are you aware of whether or not
4 deleted or if they exist in any form or fashion? 4 he had airplane bottles with him?
5 A. I do know they exist. 5 A. I don't know firsthand.
6 Q. Okay. And how do you know they exist? 6 Q. Okay.
7 A. Because the FBI has them. 7 A. I mean--
8 Q. Okay. Do you know if Henri has taken pictures 8 Q. Have you ever seen ~i travel with airplane
9 ofeny other females, other than yourself, while being 9 bottles of alcohol? r&~
10 naked? 10 A. Yes. Yes. "``
11 A. Yes. 11 Q. And when 1 t~ut "airplane bottles," do
12 Q. Whoelse? 12 you know what I -~
13 A. Andrea Farmer. 13 A. Minis. 0 §;Jj
14 Q. Have you seen those pictures? 14 Q. Okay.~.ou travel with minis?
15 A. No, sir. I have not seen those pictures. 15 A. I~!Se ;j;g~es.
16 Q. How did you become aware of those pictures? 16 Q. A n you say, 11 used to," when did you
17 A. Henri told me about it, 17 travel ' mis?
18 Q. When? 18 A. ~e , actually, I still do on occasion, It
19 A. Last year. 19 ju``nds. Just over the course oftime,
20 Q. Do you recall the date that Henri was 20 ·"~ Okay. And I take it your minis are vodka.
21 arrested? 21 WJ!.· Yes.
22 A. April9th,2012. 22 {;J Q. What minis did Henri travel with.'?
23 Q. Did he tell you about the pictures of Andrea 23 V A. Vodka or bourbon, that I've seen in the past.
24 Farmer before or after that date? Q. Okay. Can you think of any reason why "
25 A. I believe it was before, bull don't recall What color is bourbon?
Ji
Page Page 64
1 exactly, Mr. Todd. 1 A. It's brown.
2 Q. Okay. And the" one of the things that I, (©J 2 Q. Can you think of any reason why bourbon minis
3 tltink has been kind of the source ofconfus~·&L~me 3 would have a clear liquid in them?
5
6
4
where he was in the airport, and he was
custody. Are you aware of that?
e
of these depositions is: I think there was a '(II<,"'
nto
4
5
6
A. Because Henri recycles,
Q. Okay. So, he would --was he pouring vodka
into them?
7 A. Yes,sir. `` 7 A. Yes.
8 Q. And he wasn't anested at th ' e, was he? 8 Q. Okay. Would there be any reason for it to
9 A. No, sir. rF' ~ 9 have just water in it?
10 Q. Okay. Do you lmow if~as searched at that 10 A. No.
11 time? ~ 11 Q. I mean, has Herui told you any reason why he
12 A. Yes, sir. I believ&h~s. 12 may have minis that don't have alcohol in them?
13 Q. Do you know ' >tliWfo,;~d anything on his 13 A. No. And--
14 person, otlter than h' ~tes and his bags? 14 Q. Can you think of any reason why someone would
15 A. What exaitl tf you referring to? 15
16
travel with minis that don't have alcohol in them?
A, Are you~- if you're asking me a question,
16 Q. Did th~ ny drugs on him'/
17 A. He ha h , tedications on him. Yes. 17 I've never seen him with minis with just water. Are
18 Q. Just his art medications that we discussed 18 you insinuating there is? I'm not certain of how to
19 previously? 19 answer the question.
20 A. My understanding is: They're saying there was 20 Q, 1 don't know. 1 don't know the nnswer to that
21 something else on him, but I don't know what that is. 21 question.
22 Q. Okay. You have no personal knowledge 22 A. Okay.
23 yoursel:l'l 23 Q. I'm asking: Do you know if he had minis that
24 A. 1 have no personal knowledge. No. 24 didn't have alcohol in them?
25 Q. Okay. Did you see the news report with his 25 A. He's never had minis, to my knowledge, that
16 (Pages 61 to 64)
FOX REPORTING
(713) 622.1580
Electronically signed by Amy Doubenmlar (201-083-983-5249) 75b08e 32-d df1-417 0 -ab20·0 67220224a62
Beth Jackson
July 24, 2013 Job No. 14756
Page 65 Page 67
1 did not have alcohol in them. 1 Would you like to come?''
2 Q. Okay. Have you heard from anyone whether he 2 ,,No, thank you. I'm getting ready for bed.''
3 had minis that did not contain alcohol? 3 Q. Okay.
4 A. It's my understanding the legal documentation 4 A. lnuuediately following that, Trevor Morris, who
5 indicated that. But it's also my understanding that 5 is sitting across from you, picked up the phone and
6 that is not the case. But I've never seen him with 6 would not take "No" for an answer, which is typically
7 minis with water. 7 what he says to me.
8 Q. Okay. Have you ever asked Henri to add 8 Q. Okay. ~
9 alcohol to your drinks so that you wouldn't have to 9 A. And I put my clothes!/ilick on, and !walked
10 order a double in fi·ont of others? 10 over to the John Hanco~t@llding.
11 A. Absolutely not. 11 Q. But-- rF ~
12 Q. Okay, Are you aware of Andrea Fanner's 12 A. And he never~'liJt,'"Henri is not there. Don't
13 testimony concerning the Chicago business trip? 13 worry about it," ,}>~lever you just stated.
14 A. I am aware of Andrea Fanner's statement. Yes. 14 Q. Okay.tf:o, you disagree with Andt·ea
15 Q, Okay, 15 Farmer's test' in that respect?
16 A. Regarding me, I should say. 16 A. 0~ red percent.
17 Q. And very good words, because there's a 17 Q. And you go to the bar?
18 difference between statement and testimony. You were 18 A.~,
19 at the deposition, but I think you had left by the 19 ~@1ld you order a vodka cranberry?
20 time-- 20 ``es,Idid.
21 A. Uh-huh. 21 ii?Qf. Did Henri ask y'all to all look out the window
22 Q. And I may be wrong. I don't remember at what 22 nt'somepoint?
23 point )'Oll lefi. Bllt -·and I haven't seen her 23;p~ A. No, We all walked over to the window together
24 statement, but I was there for her deposition. She - r~dl at some point.
25 talked about the trip to Chicago. fi ~'Y Q. Okay. Who is "all" of us?
~-------------------------------~kHr---------------------------------11
Page 6~f!' Page 68
1 A. Uh-huh.
cg 1 A. Andrea, Trevor, myself and Henri.
2 Q, She testified that )"all had been walking @J 2 Q. And did you have your drinks in hand?
3 around, and that J'all were going to go to the :i!JilY 3 A. I don't recall that.
4 you weren't with them. She was with Trevo~ went 4 Q. Do you know whether Henri added alcohol to
5 to a Cubs game. They happened upon He~llslde, 5 your drink that night?
6 A. Okay. ~. 6 A. Yes. Actually, we did order another neat
7 Q. And they decided they wante~t T'ilto, I 7 vodka from the waitress.
8 believe it's called, the Hancock buil - 8 Q. Okay. But did Henri add alcohol to your
9 A. Uh-huh. flIF 9 drink?
10 MR. ROSENBERG: I~! a "Yes"? 10 A. I don't know if he poured it or I poured it.
11 A. I'm sorry. 11 Yes, 11 sir. -~sorry, 11 l can't -·I can't speak to that.
12 Q. (flY MR. TODD) t~d have caught that 12 Q. Have you been on business trips where Henri
13 myself. o~ 13 made drinks for others?
14 A. Sorry. &:~ 14 A. Actlmlly, I have,
15 Q. And that Tre~'alled you. Do you recall 15 Q. And has he made drinks for you?
16 tl1at? ~ 16 A. Yes.
17 A. Actual • , I do. 17 Q. Have you ever gone unconscious when you\te
18 Q. Okay. A that he was saying, 11Go to the bar 18 been with Henri?
19 with us, and, no, Henri is not with us}' ls that 19 A. No.
20 your recollection? 20 Q. Have you ever had blackouts when you've been
21 A. That is factually inaccurate. 21 with Henri?
22 Q. Okay. What do you recall the conversation to 22 A. No.
23 entail? · 23 Q. Have you ever had gaps in your memory when
24 A. Here's what transpired, Henri called me. He 24 you've been with Henri?
25 said, 11 \Ve1re going to go to the Hancock building. 25 A. No.
17 (Pages 65 to 68)
FOX REPORTING
(713) 622.1580
Electronically signed by Amy Doubenmler (201-083-983-5249) 75b0Be32-ddf1-4170-ab20·067220224a62
Beth Jackson
July 24, 2013 Job No. 14756
Page 129 Page 131
1 SfGNATURE PAGE 1 That pursuant to inform11tlon given to the
2 2 deposition O:ffi!;'cr at the time said testimony was
I, BElli JACKSON, h!lYe read the foregoillg deposition
3 tmd hereby affix my signarure that same is true and 3 taken, the following includes counsel for all parties
co~!, eX(ept as noted on the comxcion page. 4 ofreC(Ir(i:
4 5 JEFFREY N. TODD -ATTORNEY FOR PLAINTIFFS
5 GREGG M. ROSENBERG -ATTORNEY FOR DEFENDANTS
6 BETH JACKSON
6
7 7 I further certif).• that I runnei1her counsel for,
B 8 related to, nor employed by any in the
9 1liE STATE OF TEXAS 9 RCtion in which this further
comrrtor ____ 10 that I run not in
10
11
outcom````~l:l~i::``````l
11 Before me on thls day
personally appe,md knom.tto me 12 theFurther
12 {orpro,·ed tomeonthooathof or 13 203 ofTRCP will be
through (demiption ofider~Hty 14 occurred.
13 card or other docwnent)J to be lhe penon whose name is
subscribed to the foregoing instrument and acknowledged 15 Cer!ified to by rne~i#;l\\dday
14 to me that he/she executed tlte same fur the ptnposes 16
and consideration therein expre5sed, 17
15 Given tllldermyhaod and seal of office this _ _
dayof 2013.
16 18
17
19
18 NOTARYPUBLICINA!'I.TOFOR
THESIATEOFTEXAS
19 20
20 My Commission E.'"Pim;
21
22
23
24
25
Page 13~ Page 132
1
2
NO. 2012-65503
KERJ HTLL and MICHELLE ' IN TilE DISTRJCT COt~F
© 1
2
FURTHER CERTIFICATION UNDER RULE 203 TRCP
BARNETT 3 The original deposition ( ) was { )was not returned
3 oQ
~ to the deposition officer "1thin 20 days;
4
V. • HARRJS COUNTY, TEXAS 5 If returned, the attached Changes and Signature
4
5
HENRJ MORRJS and SOLID
SOFTWARE SOLUTIONS, INC., [~
Q 6
"/
page contains any changes and the reasons therefor;
If retumed. the original deposition was deUvered
d/b/a EDffiLE SOFTWARE '55TH JUD~ u lSTRJCT 8 to Jeffrey N. Todd, Custodial Attomey;
6 9 1bat $ is the deposition officer's
~
7 10 charges to Plaintiffs for preparing the original
REPOKTER'S CERT!F!CA'n6N 11 deposition transcript and any copies of exhibits;
8 VIDEOTAPED DEPOS!TIONJlRiE!fH JACKSON 12 That the deposition was delivered in accordance
TAKEN JULY 24, 2013 ~ 13 with Rule 203.3 and that a copy of this certificate was
9 0 () 14 served on an parties sl1own herein and filed with the
10 I, Amy J. Doubemnier, Certiti orthand Reporter 15 Clerk.
11 in and for the State of Texas certify to the 16 Certified to by me this~-- day of
12 following: :'S 17
13 'fhal the witne.r;s, BETr '- SON, was duly S'i\'Ont by --~--~2013.
14 the officer and that the t 1pt of the oral 18
15 deposition is a tn1e r the testimony given by 19
16 the witness; ·
17 TI1at the deposition t1;'nscript was submitted on 20 Amy J. Douhenmier, CSR
18 to the wilttess or to the attorney fur CSR NO, 7361; Expiration Date: 12-31-13
19 "tl~,.-"~.i~ln-es-s"'fo'"r-e-xa-m~ination, signature and returned to 21 FOX Reporting
20 me within 20 days; Firm Registration No. 530
21 TJ1at the amount oftirne used by eMh parly at the 22 4550 Post Oak Ph'tee1 Suite 201
22 deposition is RS follows: HOtlston, Texas 77027
23 JEFFREY N. TODD- 2:14 23
GREGG M. ROSENBERG- 0:0 713.622.1580
24 24
25 25
33 (Pages 129 to 132)
FOX REPORTING
(713) 622.1580
Electronlcafly slgnod by Amy Doubenmier {201-083·983-5249) 76b08e3 2-ddf1·-4 flO -ab20 -0 87220224a62