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

Opinion

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.).

2

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

3

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.

4

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)).

5

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).

6

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,

7

(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

8

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

9

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

10

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).

11

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

12

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

13

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.

14

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.

15

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.

16

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!

17

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:

18

"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(<l'B! od sexual abuse. 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~<ind forcible detainer not later than two years after t~ Clay the cause of action accrues."). Taken together, t~ovisions of section 16.0045 unambiguously show a legiM~e intent to provide victims of sexual assault... more time f§'seek damages for their injuries. (Emphasis added)." . @>

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

19

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.

20

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).

21

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

22

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

23

(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).'').

24

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:

25

"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

26

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).

27

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)).'').

28

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

29

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

30

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

31

(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

32

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

33

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

34

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.

35

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.

36

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

37

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)."

38

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,

39

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

40

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

41

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.

42

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~

~(J o{P

Q$

os.t£@

~~

a ~

"~~!© dP ug~ ~ o~(j} ~({;)

§::>Q! ~

43

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

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'l<ms.

Facts

8. At all times rel'"v~W:Jto her claims asserted in this lawsuit, Plaintiff ANDREA

l'Je:fem!ant SOLID SOFTWARE SOLUTIONS, L.L.C., d/b/a

fuf'De>feJJtdaJJt 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

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.

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

5

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.

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

./

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<etu\ants Henri Morris and Solid So!\ware Solutim~~. d/b/a Edible Softwure oe©

(Defendants) now file this Original Answer, and in su~thereol; respectfully show the Cout11he following: Q o§"@

I. G~'1'Jenial

Pursuant to Rule 92 of the Texru; Ru~t·jEvi1 Procedure, Dcfendan ts generally deny each and every, aU and singular ~gatiot1 in Plaintiff's Original Petition, and Q([J!flE

0

respectfully re!)llest that Plain~rovide strict proof of all such allegations by the

preponderance of the evi~~·

0

Ug II. Atl'innativc Defense

Defendants af!Jtmativdy plead that the claims asserted by the Plaintiff m·e precluded ¢~v

by specit1c s~, including but 11ot limited to~ 21.001 of the Texas Labor Code.

Defe~s also uffinnntively plead the defense oflimitations. D~dmtts resetve the rigbt to atnend their Atwwet· pursuant to the Texas Rules of Civil Procedure.

III. Pmyer fur Relief

J11erefore, Deiendm1ls pray that, atler a hem·ing, the court:

Defendants• Original Answer

12/18/201311:19:53 AM 713-755-1451 Page 3 I 4

I. Enter judgment against Plaintiff dismissing the petition in this case;

2. Award Defendants costs of suit; and

3. Grant nt,Y otl:ter reliefthnt the Defendants m·e entitled.

~rij

Respectfully subn~Q

*

0~ ~

Is/ Gl'egg M~senhel'g Gregg l\:liR1;i enberg State~'%'. 17268750 3518>~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 ©;

<J:JJ@ ~

~ ~~

u©; ~ ¢~

~ ~©;

~

Defendants' Original Ansv;rer

12/18/201311:19:53 AM 713-755-1451 Page 4/4

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing instrument was duly served upon the tbllowittg by Celtitied Mail/Retum Receipt Requested, Reguhu· Mail, Facsiniile, Ovemight Delivery and/or Hand Delivery on this the 18th day of December, 2013:

1\lr. JeffreyN. Todd 312 S. Friendswood Drive Friendswood, Texas 77546 (281) 992·8633 (Tel) (281) 648-8633

Defendants' Original Answer

2/21/2014 2:37:35 PM

Chns Daniel- Dlstnct Clerk Harrts County Envelope No. 635642 By: JONATHAN PATION

CAUSE NO. 2012-65503

KERIHILL, § IN THE DISTRICT COURT OF MICHELLE BARNETT § and STACY STEWART § Plaintiffs, § § HARRIS COUNTY, TEXAS v. §

HENRI MORRIS and SOLID SOFTWARE SOLUTIONS, INC.

§ §

~1ucT

55th JUDICIAL

~

§

d/b/a EDIBLE SOFTWARE ~ Defendants. ~r{J CAUSE NO. 2012-65503-A Q(jj MICHELLE BARNETT § II~~ DISTRICT COURT OF Plaintiff, § -~

v. ~ Q~ § o @? HARRIS COUNTY, TEXAS HENRI MORRIS and SOLID SOFTWARE SOLUTIONS, INC. ~~ d/b/a EDIBLE SOFTWARE Defendants. ~§ 55th JUDICIAL DISTRICT

'(:_.5)1@ ~E NO. 2012-65503-B

STACY STEWART ~\Q § INTHEDISTRICTCOURTOF Plaintiff, ~")) § rF!fdJ § v. ~ § ~ § HARRIS COUNTY, TEXAS HENRI MORRIS af!d'(O} § SOLID SOFT~~OLUTIONS, INC. § d/b/a EDIBLE WARE § Defendant~O § 55 1hJUDICIAL DISTRICT

~ DEFENDANTS' PLEA TO THE COURT'S JURISDICTION

COMES NOW, Henri Morris ("Defendant MmTis") and Solid Software Solutions, Inc.

d/b/a Edible Software ("Defendant Edible So11.ware"), Defendants in the above-styled and

numbered cause of action, and files this Plea to the Court's Jurisdiction showing as follows:

INTRODUCTION

This Court has previously overruled a motion for summary judgment that was filed to

address Plaintiffs' common law claims of assault against Defendants all of which allegedly arose

in the course and scope of their employment. This motion is asserted because, despite the ruling

on the summary judgment motion, this Court does not have subject matter j~~ion over the claims assetted in this lawsuit. Because of the Jack of subject matter jurisYon, the case must ~

be dismissed, ~r!;j The Motion for Summary Judgment relied heavily on the~ Supreme Comt's holding

in Wafjle House v. Williams, 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

3

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.

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"<S

Stewart's personality \~ike night and day" and that she seemed to have a personality change ~

while working at t~afood Show. 14 In a meeting with only Defendant Morris and Stewart

present, Defen~~orris indicated that he was dissatisfied with Stewart's performance at the :::J~

7 Hil!Dep., Ex. 2, at 40:3"4; 36:18"19. 'Hill Dep., Ex. 2, at 45:24"45:1. 9 Hil!Dep., Ex. 2, at169:21"170:1. 10 Hill Dep., Ex. 2, at 46:19-47:2. 11 Hill Dep., Ex. 2, at 109:20"110: 18. 12 Hill Dep., Ex. 2, at 155:5-13. " Stewart Dep., Ex. 3, at 24:8-23. 14 Stewart Dep., Ex, 3, at 123:23-25.

show including her failure to interact with people. 15 Defendant was then absent in Aprll 20 II to

care for her son who was sick and then for her own subsequent illness. Stewart's employment

was terminated during the week of April II, 20 I I, six weeks into her tenure with the company .16

While Stewart was employed by Edible Software, she was taking two physician

prescribed medications, Wellbutrin for depression (diagnosed in 1998) and ~~~ for restless leg syndrome (diagnosed in 1993). 17 Stewmt was also diagnosed with bilM· disorder in 2005,

2006, and again as of approximately April2013. 18 ~if';j II. Incidents Regarding Allegations of Unwanted Sexual~ct a. Barnett's Allegations of Unwanted Sexual Con~y Defendant Morris

Plaintiff Barnett alleges that she was druggQ~efendant Morris and subjected to unwanted sexual contact while on a business trJMo New Orleans, Louisiana in or about ~d

November 2011. 19 On November 14, 20~arnett departed from Houston, Texas with

Defendant Morris. 20 While on the plane ~ing to New Orleans, Barnett consumed a glass of red wine. 21 Upon arrival in New ~~ Barnett and Defendant Morris checked into the JW Man·iot hotel in New Orleans' F~ Quarter and then met in the concierge lounge of the hotel after briefly visiting their im!~ual hotel rooms. 22 At the concierge lounge, Barnett made g~

herself a vodka soda at(bll sclf"serve bar." Barnett consumed half of the vodka soda when ~

Defendant Mon·is ~d to put her drink into a to-go cup so they could depmt to dinner at Mr.

g~

15 Stewart De ., Ex. 3, at 126:7"128:14. 16 Stewart Dep., Ex. 3, at 132:10-12. 11 Stewart Dep., Ex. 3, at 107:17-110:20. 18 Stewart Dep., Ex. 3, at 114:14-116:2. 19 See Plaintiffs' Second Amended Petition, at~ 9. 20 Barnett Dcp., Ex. 1, at 75-76. "Barnett FBI Interview, Feb. 27,2012, Ex. 4, at p.13. "Barnett Dep., Ex. 1, at 83:24-84:17. "Barnett Dep., Ex. 1, at 84:20-86:15.

B 's restaurant. 24 Barnett consumed a few sips from the to-go drink before it was taken by the

waitress at Mr. B's restaurant. 25

During dinner at Mr. B's restaurant, Barnett ordered three (3) Vodka sodas that she

consumed over approximately a two hour period. 26 Bamett also consumed a few sips from a

fourth drink that was at her table when she returned from the restroom at ~restaurant. 27

At this time, Barnett had consumed five (5) alcoholic beverages and mul~ips from (2) other alcoholic beverages. Barnett testified during her deposition that at th~~t she felt "tipsy.""

After dinner at Mr. B's restaurant, Barnett and Defenda~ris went to PJ's Piano Bar ("PJ's"). At PJ's, Barnett consumed approximately half~~ alcoholic beverage called the

"Hurricane."" Barnett described the Hurricane as ~ intensive" and as being a potent alcoholic beverage. 30 Barnett went to the restroo~d when she returned, there was a second

Hurricane at her table. 31 She informed Defen~orris that she did not want to drink anymore.

~:pproximately V. of the second Hurricane drink."

On her own accord, Barnett proceeded to

Even though Barnett confirmed sh~~~psy" when she left Mr. B's restaurant, she consumed

pmtions of two more drinks at P@~ this point, Barnett had consumed (5) alcoholic beverages 1 red wine, 3.5 vodka soda· ~~fa Hurricane) and multiple sips from two (2) other alcoholic ~"

beverages. 33 U .~ "~(Iff

~VJ (j

24 Barnett ., .... 1, at 86:18~88: 18.

~ Id ,. Barnett Dep., Ex. I, at 92:18-93:1; See also Barnett FBI Interview, Feb, 27,2012, Ex. 4, at p.21-22. 27 Barnett Dep., Ex. 1, at 93:2-97:24. "Id "Barnett Dep., Ex. 1, at 98:21-103:7. "BarnettDep.,Ex.l, atl03:8-!03:1I. 31 Barnett Dep., Ex. I, at 103:8-103:23; See also Barnett FBI Interview, Feb, 27, 2012, Ex. 4, atp. 26-27. "Barnett Dep., Ex. 1, at 104:21-106:5. "Barnett Dep., Ex. I, at 107:7-16.

Barnett does not remember how she arrived back at the JW Marriot hotel after departing

PJ's. The only memory Barnett can recall between consumption of a few sips of the second

Hurricane beverage at PJs to her arrival back at the JW Maniot is Defendant Morris pulling her

arm at PJ's, 34 Although Bamett admits that she cannot remember clearly anything from that

night {November 14, 2011), following the portion of the second Hurricane s\~1med at PJs, da~Ym; (2) she stated

she testified that: (I) someone attempted to pull off her sweater in a

"oh, no, this is not happening and (3) she disengaged from the swe~~d ran into a bathroom

because she was sick." Bamett testified that she was only sp~ng that Defendant Morris was with her in a hotel room. ' 6 Specifically, Barnett testifie~t she could not be one hundred percent sure that Defendant Morris assaulted her and c~d that she was just speculating:

Q: What was it you felt he did to you att._~ point? A: He assaulted me and tried to IUinn1~othing. Q: But you said at that point you did~"know it was Henri because he hadn't told you about it yet, and you told(l)lU&rlkr you didn't know who it was. lsn 't that correct? ~ A: I couldn't be one hundre~l!f~rcent sure because the person was behind me. Q: Okay. So at that po,~t~ti still weren't one hundred percent sure when he's knocking on your h~~or.

A: No, but I felt it wali'mti1. Q: You're just spec!J\~g. A: yes." 0"))

©!~

The next mornin~ November 15, 2011, Barnett text messaged her husband and she ~

spoke with him ove~1phone." She informed her husband that she felt uncomfortable and did

not want to go#e client. 39 She had thme (3) conversations with her husband that moming

during w~ advised her to drive her own car to the client to avoid having to get in the car

"Barnett Dep., Ex. 1, at 108:14-109:15. "Barnett Dep., Ex. 1, at 109-116:12. 36 BarnettDep., Ex. 1, at 128:21-129:11. 37 Barnett Dep., Ex. I, at 128:18-129:11. "BarnettDep., Ex. I, at 116:13-123:13: see also Barnett FBIInterview, Feb, 27,2012, Ex. 4, at p. 28. , Jd

8

with Defendant Morris and to take notes about everything that occuned. 40 Bamett then text

messaged Defendant Morris stating that she felt uncomfotiable about what occurred the night

before and she did not want to go to the client. 41

After receiving her text message, Defendant MmTis knocked on the door of Barnett's

hotel room. 42 Barnett first told Defendant Morris to go away but then came~~e hallway to speak with him. 43 At this time, she speculated that Defendant Morris ha~Q to assault her the night before and ruin her clothing. 44 During their conversation !#hallway of the hotel, o§@

Bamett told Defendant Morris that she was uncomfortable ~"\t what happened the night before." Defendant Morris responded that he did not un~d her accusations and that she ,,~

had come to his room and laid down. 46 Defendant M~<®nfirmed that he did not touch her. 47

Defendant Morris asked Bamett to meet with the 1~ as planned. She agreed. After the client

meeting, Barnett and Defendant Mol'l'is ro~ether to the airport and Defendant MatTis

thanked her for her attendance. 48 ~ -

b. Hill's Allegation ofUn~~ Sexual Contact by Defendant Morris

Plaintiff Hill alleges thU1e was dl'llgged by Defendant Morris and subjected to

unwanted sexual contact whil~ a business trip in New York on or about January 8, 2012 and ~~

again on a business t~Vchicago and Peoria, Illinois on or about January 22, 2012.' 9 Hill

confirmed that all ~incidents she references are based on speculation, as she cannot confirm ©!

~

40 41 Id ~~ BarnettDep.,Ex. I, 126:2-127:14.

42 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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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 US 57, 67, 106 S.Ct. 2399 (1986)

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\ -----~~-----~~~-----~------~~----~-------------------------------------------------------~----------

0619 Memory TX 18664401655 P. OK

~

~ &~ fiFo

""~

------------------------------------------------------------------~~-----------------------------

R(l<II>OI"' for orror ~ E.1 Hang up or line fall E.2) Busy E. 35

No an s we. r

E. 5) Exceeded max:. E-mail size E. 4) N v fa --'m l 1 e conn e c; t l on

~

!@rift~

-

TTHE LAW FIRM OF l"i!flt!,'t: j11 ALTON C. TODD -·-~ -~ k<111Mi1!..<U

..

h2S.l'ri=!.--.:d!MI"<!tl"rr<n<-kwoal.'l'e<.u71'51.!; 0 ~~ ~~

@glo~·~""

-fc2!~

VTAPJ..Clm.ill.l!:806.«0.1r.s3 """"""'"" .r'II!tll~W How.toQ Spe(blly ~

U

P.O. Bo)(Bl);MII$ """""~}!) ffoust;:,n.Te>:U,~t>

Re ~~ Mlradl.l 'Ru:w.ll

~

~~ IXillyM(II.Lfattj ofl.t:>S9 Jtt1yJ2.,20N ~i Nttrn'lter 0333833"lii'

~

~~ i'!O!'l$mn.:£a.illal'URPOSBSONLY ¢

""

g

~ ~ 1 Mvewmeyed: the ('OH~ oC $6,100.00 Wtnj' (tiMt Dl'.d ibM .,.s)...a.J, tlut Ild:ndly nject &~:rue. H'<Twoo-.-cr,inthe~pbllol~~shebMallthmtudmt\o~$18,000..00vnhtr b~, ~~ill}'OW:urlff:ltCOII~t,

0 ~~lll<lyoo.tlu.\'$LU\f~O<,_,;~onymo111.ln!Dnmlk>n,.pleu.e&.!Ilrrebl«m~.\'t\

1

(/J»~ Ktnde!il ft!lerdS',

~ w'Hf70M Jefi'1¢'JN. T«fd

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

23

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 preo ©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.

"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.

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.

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.

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.

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 aska<h~wmt if her could come to her room and finish the ~

massage after they left th"~l lounge area and headed back to their separate hotel

0

rooms."' ~~

The alleged "un~d sexual touching" described by Plaintiffs as the essence of their ~ of behavior addressed by the statutory provisions of the TCHRA.

claims is exactly t~~¥pe

Texas case la\,~nequivocally recognized unwanted physical touching within the employer employe~~onship as sexual harassment under the TCHRA. Stewart even specifically stated

164 Stewart Dep., Ex. 3, at 55:20-56:4.

"'Stewart Dep., Ex. 3, at 56:16-23. 166 Stewart Dep., Ex. 3, at 118:18-22.

167 Stewart Dep., Ex. 3, at 92:12-93:9 168 Stewart Dep., Ex. 3, at 93:10-20.

that when she sought legal representation she knew she had a sexual harassment claim."'

Therefore, Plaintiffs cannot "moonlight," as the basis for an assault claim, alleged acts that fall

within actionable harassment under the TCHRA. 17"

c. Plaintiffs' failure to adhere to the administrative requirements of t~CHRA for claims governed by its statutory scheme render Plaintiffs claims tin~~n·ed. Plaintiff attempts to avoid the administrative requirements ~dated for sex ~

discrimination sexual harassment claims under the TCHRA by asse1~mmon law claims of

assault. Plaintiffs assetied claims are time-barred under the T~~bor Code which requires that Charges of Discrimination be brought no later than 180 d"~fthe last discriminatory event.

o~r

Claims brought under the TCHRA requil'e the ex~ on of administrative remedies as a

mandatory prerequisite to the filing of a suit by an ~idual. 171 The event which triggers both 0~

the administrative and legal remedies provide~ TCHRA is the filing of a proper complaint

with the Commission. To be properly fil&section 6.01 (a) of the TCHRA requires that the

.complaint be both verified and filed,F(~hin 180 days of the alleged unlawful employment

-~

practice. 172 The time for bringingO., ,1 action is based on the date the complaint is filed. 173 The

complainant must satisfy the ~rements of section 6.0l(a) as a jurisdictional prerequisite to

pursuing the private ju~ remedy allowed in section 7.01(a). Subject matter jurisdiction

cannot be waived; e~ court has jurisdiction, or it does not. 1' 4

~rg

~g ~

169 Stewart Dep., Ex. 3, at 56:16-23.

"" Waffle House, 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),

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.

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.

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:

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)

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.

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

~

~

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 !l<w qscretion to exercise its jurisdiction to consider the merits of the o ~©Y

matters at is~rein is properly procedurally raised by means of a plea to the

g

2 Plea,p~~ 3 As discussed in detail infi•a, Defendants fundamentally misread Waffle House. In the opinion's second paragraph, the Supreme Colll't makes very clear that it is considering a core question of first impression: "may a plaintiff recover negligence damages for harassment covered by the TCHRA?" 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.

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.

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.

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<nown substance itlrliJ!r drink, unbeknownst to her. Hill lost ~

consciousness and awoke some fiv~x hours later, having no memory of the

intervening time period, (Petitiobn). Later in January, 2012, during a trip to

Chicago, illinois, Morris a~~th_gged Hill by putting an unknown substance into

her drink, unbeknowns~er. This time, she awoke from being unconscious to find Morris' face p1~ against hers while she was being sexually assaulted,

(Petition ,!12); UQ 3. During a M~o11 trip to Boston, Massachusetts, Morris drugged Plaintiff Stacy Stewart~tting au unlmovm substance into her drink, unbeknownst to her. Wh~~1e was semi-conscious, Morris attempted to sexually assault her and attempted to forcefully remove her clothing, (Petition , 14);

4· On the basis of these respective factual allegations, eacll and all of said Plaintiffs

claimed that Morris, individually, intentionally caused physical contact directly or

6

through the instrumentality of drugs, while he knew or reasonably should have

known that each Plaintiff would find that contact offensive or provocative;

5· Further, each Plaintiff claimed against Edible because the basis for each b·ip arose

out of Morris' capacity as President and CEO of Edible and the sup,ervisor of each

Plaintiff and the company should be held liable for the intentio~~rtious acts of its principal; (Petition ~~ 18-20, inclusive). However, no ~Wtiff asserted any

claim against either Morris, individually, or Edible aris~t of any contention of sexual discrimination. Instead, every claim a~ arises directly out of intentionally tortious conduct of Morris and l;b~xual assault of each of the ~

victims; and, Qi/lj? 6. As a result of these several intentional 0 ~al assault torts, each Plaintiff claims

damages for: physical pain, suffeef.nd impairment from tlte time of the

incidents described through tria&~tal anguish and anxiety from the time of the

incidents through trial; men~guish and anxiety to be experienced in the future;

and, loss of earnings a~ing capacity sustained from the date of each incident to time of trial. ~ Plaintiff also seeks exemplary damages for Morris'

outrageous, ma~s and intentional conduct, (Petition~~ 21-26, inclusive).

And, each and all ~Assault Victims' claims and theh· asserted damages are copiously supported by ~ition testimony obtained in the discovety which has thus far been cg

undertal~·ein.7

1 In Defendants' Plea, the deposition transcripts of the three Assault Victims are appended, as Exhibits "1", (Barnett), "2", (Hill), and "3" (Stewart"). To avoid confusion, the same exhibits are adopted and incorporated herein by reference, per Tex. R. Civ. P. 58. Citations thereof are to page and line. As did Defendants, the Assault Victims set out virtually the same factual summary as was contained in their Response to Defendants' Motion for Summary Judgment. They apologize for this seeming imposition upon the Court's time and precious judicial resources, but, feel that for completeness and ease of analysis such facts are here relevant as well.

In her discovery deposition, Plaintiff Michelle Barnett testified that she is a

January, 2000 graduate of San Francisco State University, with a bachelor's degree in

history, (10:19-24). She lives in Cypress, Texas with her husband and two children, an 8-

year-old daughter and a 6-year-old son, (13:13- 14:2). She resigned from Edible late in

February, 2012, (12:2-5); having been hired in about June, 2011, (16~1she became aware of the company from use of its software at a prior job, begin~ about January,

2009, (17:1-10). She interviewed for her job at Edible with De~~t Hemi Morris and o@;i;

his son Trevor, (20:20-23). She began work at Edible~l\ugust 1st, 2011, as the

Operations Office Manager, (24:5-8). She understood j~ravel would be a part of her

job, (27:13-20). Her first trip for the company w~~lanta, in October, 2011, (29:17-

25); she was accompanied by Morris, Trevm;, ~ Beth Jackson, (30:1-6). Beth was a

software implementation specialist, (30:7#· Barnett reported to Defendant Morris,

(30:13-16). They left on the trip on a Fr&, (30:17-24); and, they returned the following

Sunday, (31:4-7), She flew to Atlan~ herself and stayed in a Marriott hotel; the travel

arrangements having been m~~ someone else, (31:7-16). Trevor, Morris and Beth were already there when s~\rived at the hotel, (32:6-9).

Ms. Barnett weUdinner that Friday night with Trevor and Morris, (34:17-25).

She had two alcoh~rinks, (35:3-18). She also went to a buffet dinner on Saturday, with oU

a lot of peopl~n the trade show, (35:25- 36:10); and, there was drinking there too, ©1

although~ould not remember what she drank or the number of drinks, although she assumed it was wine or vodka, her usual choices, (36:10- 37:10). These two dinners were

the only occasions when she drank alcohol on that trip, (37:15- 38:6). Both Morris and

Trevor drank at the Friday night dinner, (38:7-16), and at the Saturday buffet, (38:17-20);

but, she could not recall what the two men drank at those functions, (38:15-16, 21-22).

She was not under the influence of alcohol on Friday night, (39:2-8); but, on Saturday

night, she did, (39:9-10), She felt "tipsy", (39:11-12). She was driven back to the hotelfrom

the buffet by Morris, (16-19). Trevor was with them and he might have driven, (39:21-

40:10). But, she was neither drugged nor had any complaints about that trip, (40:16-25).

When she returned to work, everything was fine, (41:6-8).

*

~ri/j

In response to very adroit q~estioning by seasoned opposin~~sel, Ms. Barnett

admitted that she had harassment training at the compan~~:17-22); and if she observed it, she was supposed to report it, (57:5-10). ~~as given a copy of the

company's \ITitten harassment policy, (67:2-21); and, s~ew who to report problems

to, (68:18- 69:23). She went to a "lunch and lea1Q~t it, (70:1-11). Early in her time with the company, (17 days after beginning), &)).~bserved Andrea Farmer at work when

she appeared to be intoxicated, and s~ed Beth about it, (65:12- 66:7). She understood the policy and what wor~ce sexual harassment was, which included

unwanted sexual advance, touc~~~ents, (70:15- 71:8), She understood the policy

applied to anyone she worked~~ (71:12-23). But, very importantly, she did not feel that

the policy had an effect re~'j,ng the president of the company, Morris, (73:25-74:8). In

fact, she expressly fel~~ could not be protected if the sexual harassment came from Morris, (74:19); s~~r she was attacked in New Orleans, she decided to not to report it to the compa~ich she believed would be futile, (75:7-16); and, instead she reported

it to the ~74:23- 75:1). However, even that report was not made until the following

February, (75:2-3), three month after she was attacked in New Orleans, because it took

her that long to sum up the courage to do sol

In this regard, it is imperative that the Court understand two critical aspects of

such testimony. First, the deposition of Ms. Barnett was not to preserve her trial

9

testimony; rather it was for discovery pUl'poses only. Undersigned counsel for Ms.

Barnett reserved all question until time of trial, (281:19-21). Thus, all of her testimony

was in response only to the questions opposing counsel artfully chose to ask. Second, even

so, during her protracted deposition, which began at 9:33am, (6:1), and concluded more

than seven hours later at 4:36 pro, (281:25), the magnitude of what ha~ to her and the devastatingly traumatic effect it had upon her come vividly thr~ven in response

only to wily interrogation by opposing counsel. In the face of ~right physical attack

by company president and CEO Morris, all of the normal ru~arding workplace sexual

harassment went completely out the window. Therefo~o hold Ms. Barnett to solely those rules in analyzing this case can only serve tQvi/fl:a manifestly gross injustice, The

superb skills of opposing counsel in framing h~inquiries simply cannot be allowed to ~

mask over the horrific nature of Monis'~edations and the injuries it proximately

caused. ~ About two or three weeks a~the Atlanta trip, Ms. Barnett was asked to travel

again, in November, 2011, (4~~:3); this time to New Orleans, (42:4-5). Morris told her that the purpose of he~ticipation on this trip was to implement software for Aunt

Sally's Pralines, (42:6~She was excited about the trip because it was her first client implementation, ~-22); and, also it was her first trip there, (77:13-17). Morris made o(\J

the travel arr~ments, (57:24-25), They departed on November 141h, 2011, in the (Ql

afternoo~:17-22); she flew ·with Morris, (58:23-24), on Southwest, (58:25- 59:2). She though it was unusual that the trip details were not given to her until just before the trip,

(59:3-21), She asked Morris about it and he told her not to wony and seemed annoyed

that she asked, (59:22- 60:2).

They left on a Monday, (60:12-13); she and Morris drove separately from work to

the airport, (60:14-25). On the flight to New Orleans, she sat next to Morris, (77:20-25;

78:22-24; 79:3-9). During that flight both she and Morris had one drink, hers a red wine,

(79:9-24). Once they arrived, Morris rented a car, (81:25- 82:2), and they drove to the

checked them both in, (82:3-25). Then, they went up to their

*

Marriot hotel in the French Quarter, (8o:8-2o). When they arrived a~~otel, Morris

res~Qe rooms, on the o(lj

same floor, (83:1-23). They had rooms on the concierge floor, (~11); and, this was the

first time she had ever been to a concierge lounge, (81:12-1~ere, the hotel provided a TV, hor d'oeuvres, and drinks, (81:18-22). By the time ~~et in the lounge it was early >)}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).

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

12

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

13

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

14

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

15

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

16

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

17

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,

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

19

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,

20

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

21

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

22

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

23

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,

(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).

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

26

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).

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<i@

is not qualified to make that purely legal determination. I~d, she conceded that she ~

doesn't even understand what the specific legal goals>~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

28

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 Jacl<son,

8 Deposition transcript of Fanner is attached hereto as Exhibit "D". Citations thereto are by page and line.

clients and herself, (27:13-16). She told the FBI she saw Morris pour something in Beth

Jackson's drink in Chicago and she decided that, "Oh my gosh, something's gone terribly

wrong." She felt that pouring something into a woman's drink without her knowledge was

deeply immoral, (29:8-20). They were in Chicago for a convention, including Morris, his ~

son Trevor, Beth Jackson and herself, (32:3-14). At the end of one day~§ gathered for

drinks, (32:22-25). Morris had been drinking liquor out of a Peps~Ye during the day o0

and was quite drunk, (35:16- 36:2). They ordered drinks and wl~hey came to the table,

Morris made a big deal of yelling for them to all look out ~~ndow; while they did so, he poured something in Beth's drink, (37:5- 38:10). Sll~rted to question him about it

because she was alarmed, and he said, "Shh, it's fi~kay, don't say anything." (38: 11-

u

17). Then, Beth mentioned that the dink tastOOcstronger and she stopped drinking it, ~d

(38:18-21).

At the time, she thought he mig~ve just added alcohol to Beth's drink, (43:23-

44:1); but, later she decided it w~8ug. This was based upon seeing Beth with Morris

~or she could barely hold herself up and another time in Washington, D.C. in such

in Houston when Beth w~~th him and appeared ve1y ill, grayish-green and looking (1_)~

terrible, (44:2- 45:2o)~'§he said Morris' encouragement of excessive drinldng by others ~

seemed very su;f$Ws, (47:11-19). On another occasion, she observed Morris and the

female comp1;l~r !Q.

at Aunt Sally's pralines in New Orleans. They met for drinks in the

concier~ge of their hotel. Shortly after that, they went out to walk on Bourbon Street and the woman appeared so drunk she could barely walk, which made her very

uncomfortable. They went to Pat O'Brien's and Morris left her there, saying he was going

to find the woman a cab, (53:13- 55:15); but, he was gone for over an hour and he had

been inappropriately touching her, so she believed he took her back to his hotel room for

30

illicit purposes, (59:3-18). This suspicion was enhanced when later he told her he had

taken the woman back to the hotel, which made no sense because she wasn't staying there,

(61:16-22). Also, when they got back together, Morris' clothes were disheveled, he was

very sweaty and his hair was amuck, and he was over-excited and almost disoriented

later, the woman apologized profusely for being so drunk, adding

*

about where they had been, (63:1-10). Then, when she talked to the co~~ller two days

~n1le had no memo1y o(ij

of that night or how she wound up getting home and into bed, \~1-20). She mentioned 0~

that to Morris and he got excited and pressed her to rem·· that they saw her in the Nl~ 65:3).

hotel lobby later; but, she remembered no such thing, €~1-

r!?~

Ms. Farmer went with Morris to Philadel~"and Newark about two weeks after

she started working at Edible, (75:18- 76:18)~ flew by herself and met Morris at the Philadelphia airport, (77:7-17). Morris h~~ntal car he used to pick her up, (77:18-21). This was on a Sunday evening, C7T25~8:3); and, they drove to the hotel, (78:2-4), (a . (f{p

Mal'l'iott, (79:23)), Morris want~ meet in the concierge lounge, but it was closed so

they met in the hotel bar, (~~~· They stayed there about an hour and a half, (79:18- 19); then she went to s:e~:20-21). However, the next night, theywentto the Newark

(81:14-17~rder to see a New Jersey client the following day, (81:23-24).

Marriott,

They went to d~~hat evening, but she has absolutely no memo1y of anything about ~

the dinne1· or~'hg to it or getting home, (95:24- 96:15); and, the next morning, she woke

up in he~1elroom bed with a pillow and some covers over her head and her blanket down around her ankles. Then, she heard the click of a phone camera and she looked and

realized she was naked and Morris was 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

31

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, (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 r * and came

right back in to show her his Blackbeny, v.ith no picture in it. She tr~~ index it, but

can't, (83:8-17). Then, he left again and she went back to sleep for f~Qours, (84:6-9).

0~

Morris denied it, but, she was certain he took nude pi~s of her in her hotel olf@

room, (97:15-20). And, of course this was confirmed after~is was arrested and they

found several nude photos of her in a locked flash drive~ office, (101:1-13). She clearly ,§:;'

remembers him in her room and herself naked i~ (98:1-5). He left her room about

4:00am and she then slept until about 8:oo ~(99:4-11). More importantly, she also

feels certain she was raped because she ~edness and bruises on her arm and "hip area". (99:12-22), She also felt like she ~een touched" and she was sore in her "female

regions", especially on the inside~~1-10).

Ms. Farmer took one ~rip with Morris. On that trip, once again, Morris had her meet him in the conciel!~Unge oftheir hotel, (116:9-10). He asked her if she wanted ©!~

a drink and she aske~ ~chardonnay. But, after he brought it to her, it tasted disgusting, like strong medic~~th a very bitter alkaline taste, (116:18-25). She said the taste was

definitely not#mal taste, (118:3-25). She tried a few sips and then said she couldn't

drink it, ~~6-18). They went to dinner; and, afterwards, Morris pressured her to have another drink, but this time she mfused, (121:1-6). After they returned to Houston, she

shortly learned that Morris refused to talk to her anymore, for a pretextual reason,

(124:14-25). And, he remained distant and standoffish to her, (125:6-10).

Later, she could vaguely remember being at dinner and that a comedian was 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 dri~e and asked for a glass of it, but Morris insisted she have a mixed drink, (89:1~Q. She insisted on o(\j

wine and he poured her a glass, but, then he told her they sho~t another drink to-go

and go to runner in Manhattan and he insisted she have a ~~drink, and he fixed her a drink in a to-go cup, (90:17-25). However, the drink w~ strong she couldn't drink it,

and she told him that. He then added some soda~£ insisted that she drink it, (91:1- 22). Shortly, she began to feel very dizzy, (92ffi10). In the elevator, Morris began to ~C'

massage her neck and back, which she t~t was weird, (93:4-16); she told him that

was not necessary as it was making he~comfortable, and he stopped. But, later he put

his hands on her shoulders an~~~Jih:16-25). By the time they arrived in Manhattan, she was Clisoriented, (92:11-16d, Morris began holding her hand which made her feel

very uncomfortable, (93 :1~ efJJ

This next morn~; incredibly, Morris was at the door of her hotel room asking why ~

she wasn't ready ~~e the client! (102:7- 103:8). She met him downstairs and it was she

who was apo~ng for being unprofessional, (103:11-15); she blamed herselffor losing control! ~22- 104:3). This is a creepy aspect of evmy one of Morris' victims: what

happened to them is so outlandish and bizarre; it is always they who take responsibility.

And, that is one of the most heartrending aspects of this case. Morris has already

confessed to federal felonies; but, even now he refuses to take any moral or civil legal

responsibility whatever for these heinous attacks. She emphatically denied giving Morris

33

consent to take nude pictures of her, (104:4-24). 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), They went to dinner in Connecticut that night, but there

were no problems, (108:2- 110:8). On the final night of the trip, Morris *tioned the

night of her attack by saying he "didn't want her to feel uncomfortabl~use they had done nothing wrong." (111:24- 112:3); he added that he felt a consi~<;Jle "attraction" to 0~

her, and that he wanted her to stay with the company for a~ time, (112:4-9). She o0

replied that even if she had consented to what had happ~it was wrong because he

was married, (112:10-15); but, he said he had "never do~ything like this before and he really liked her." (113:4-7). Then, he claimed he h~ marriage, (113:10-12). She told him their relationship had to be professional; ~~e told her he would hug her whenever

he felt like it, (113:13- 114:1). She sta1ted~ng fOl' another job immediately, (114:18- 20). ~-

Erin Bjork testified9 that~orked for Edible from November, 2011, to mid-

February, 2012, (7:3-13). She r@ent!yinteracted with Defendant Morris, (14:14-16). He

made her feel very tmcom~le, (15:2-5); for instance, one day he came into her office, ,prpJ

shut the door and beg~scussing her bathroom habits, (15:9-11; 15:16-21). On a day ~ wanted a sandwich in her room or whether she wanted to "go out trip, he asked her ~e

because they #on the road", whicll she thought was very weird, (17:1-6). Morris asked

her to tr~~th him, but she firmly declined, (18:20-19:13). He did not come onto her,

but, she received a detailed complaint that he had from Michelle Barnett, which shocked

her and made her sad, (20:12- 22:17). She was certain that the complaint was true, (23:10-

9Deposition transcript of Bjork is attached hereto as Exhibit "E". Citations thereto are by page and line.

22). She told her husband the story and he advised her to leave the company and she told

her mother, who was equally shocked, (24:20- 25:8). She felt Ms. Barnett should report

the matter, because she had been violated and she believed her, but it wasn't her call,

(25:9- 26:1).

Then, later, Keri Hill came back from a trip with Morris, loold~ted and all out of sorts". At first, she denied any problems, but then said she ~roubled because

on the trip she blacked out and had no memory, (30:19- 31:14t~ had a rape kit d~ne 0 '!@~

and said her husband told her she had been drugged, (3~~ 32:5); and, she was very

distraught, (32:17-19). This second story about Morri~~ply disturbed her, (32:9-10); because the two stories were so similar, (34:4-8~ that, she refused to travel with Morris, and she was let go by him, (35:6-16; 3~~16).

Further, Samantha Gluck testified(f'her discovery deposition, in relevant part,

that Defendant Morris assaulted her b~~hing her and trying to get her to do things she

didn't want to do and she report~* to the FBI, (29:2-10). Very interestingly, opposing

counsel asked most of the 11'.it~s about sexual harassment, which is a manifestly legal

term; yet, when Ms. Glue!~~ she had been assaulted, he questioned her at length about

the fact that she had ~al training to allow her to define that term, (29:11- 30:1). She ~

countered that s~~ant that Morris had tried to kiss hel' and had toucl!ed her breasts,

rubbed his h #up and down her sides and grabbed her, "on her breasts, evmywhere",

(30:2-8~lso tried to get her to both drink alcohol and to drink more of it than she wanted, (30:13-16). All of these things happened on out-of-town trips, (30:17-20).

10 Deposition transcript of Gluck is attached hereto as Exhibit "F". Citations thereto are by page and line.

In Philadelphia, after they exited the elevator after dinner, to go to their respective

rooms, Morris tried to "really" ldss her and he grabbed her breasts with both hands and

told her to come to his room to "talk and have champagne". She was very shocked and

pushed him away and said no; but, he was very persistent and kept grabbing her. She told

him to stop, but, he just kept at it. Finally, he stopped and she ~lro her room devastated, (66:11- 67:25). She called her husband, crying and up~~9:5-13); and, he

too became upset, (69:13-14). He said he "wanted to kill the b~", (76:2-17). But, the

next day, she did not talk to Morris about the matter becau~was afraid, (80:25- 81:6). However, she was adamant that he attacked her and sh~'t initiate the contact, (81:18-

82:2). Morris was quiet all day, (82:8-17). Q~ Then, there was a second trip to Phila:fl~hia, (89:12-14). And, the first incident

was essentially repeated: Monis invitee(~to his room after dinner and when she arrived, he had his shirt off and starte~ on her again, (95:19-23). He had earlier made .. @!

her a drink, but it didn't taste~ (96:23- 97:6). (Later, she came to believe he had

drugged it, (109:4-12)). EvenQ he l<ept telling her, drink up, drink up, no matter how

badly it tasted, (97:17-1~"'1a, he continued to pressure her about it, which she found very odd, (99:9-10)~oon as she got to his room, he tried to get to sit on the bed and he began aggr~~ kissing her and touching her all over. She repeatedly told him no;

but, he said ~dy would know. Finally, she bolted out of the room, (107:4-18). She

drank ve1~;a1h1e that night, but the next morning, she felt terrible, so she believes Morris put something in her funny tasting drink, (109:25-110:14). But, she never reported these

incidents because offear, (137:19-24).

Still later, Morris resuscitated her after she fainted; and, when she awoke, her bra

was undone; he said that was to allow her to breathe easier, which she thought ridiculous,

(142!16-24).

During the discovery deposition of Ms. Beth Jackson, the onl*e of those

discussed herein in which the undersigned counsel for Plaintiffs as~uestions, she testifiedu in relevant part that she is a graduate of Boston Colleg~\Jh a bachelor's in finance, (8:9-12). She never ·worked for Edible; instead she .&~ cQJ~uted for them, (13:10-

Qt?@

16). She first dealt with Defendant Morris in March/Apri1~4, (15:16- 16:1). She has a

cozy relationship with Edible: she met with Defendanti~nsel for three hours before he .·~

deposition; she attended Andre Farmer's deposit~~ a "company representative" even

though she is not employed by the company: ~ij;jnly consulting client and only source of

income for the last several years has be~ible; and, they have often discussed her

working there, (22:11- 24:12). Initially~e said she reviewed no documents before her deposition, (26:13-15); but, then~nceded that before her own deposition, she in fact

read the statements of Keri~, Michelle Barnett, Andrea Farmer, Stacy Stewart,

Brannen DeVille, Diedra Ml.\~eoud and Samantha Gluck, as well as the depositions of ~~

Keri Hill and MichelleUnett, (26:13- 27:14). She also referred to Charles Butler as "our"

~

vice-president"~~ Allan Morris as "our" human resources director and Trevor Morris as "onr" CE~'en though those men work for Edible and she does not, (32:1-14) .

.\Q.

Further,~ asked how Edible has been doing, she replied, "We are doing very well", (40:18-20; and, she considers herself"a part of the team", (40:23- 41:3).

" Deposition transcript of Jackson is attached hereto as Exhibit "G". Citations thereto are by page and line.

She drinks 2-3 mixed drinks daily, (28:3-9); and, she has often been out drinking

with Defendant Morris, (22:1-5; 27:19-21; 30:3-8; 33:25- 34:3). She stated that initially,

she had a business relationship with Morris, (32:10-12); but, she later conceded that even

though she knows he is married to Ruth, whom she has met, (35:3-10), she has travelled

with him at least once a month since 2009, (37:4-11), and she h~~ng-running "personal relationship" with him since about 2005, (49:4-22), lasili"to 2011, (51:21-

0~

52:4); which specifically included a sexuall·elationship with h~~9:20- 50:4). During

this time, both of them were married to other people, event~ their respective spouses did not lmow of their illicit relationship, (50:5-20). ~relationship included sexual intercourse, (50:1-4), digital penetration, (53:6-~allowing him to photograph her nude, (53:21-23), on numerous occasions anl~Jilumerous locations, (53:24- 54:5). He

took these nude photos with his cell pho~ich he would then save by downloading

them onto hard drives or flash drives, (~-8); her only restriction being that in the fully

nude photos, her face not be shpfb4:16- 55:2). She said she intended Morris to use

the photos to arouse himself ~~is wife because while she easily aroused him, his Vl>ife

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

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!

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 worl<place; and, Defendants'

12 Still other victims have rendered statements to the FBI; but, as they have not been deposed in

discovery herein, there stories are not herein discussed. However, they are out there as further corroboration of Morris' heinous conduct.

persistent contentions that their claims are all so intertwined with sexual harassment in

the workplace as to be controlled by the TCHRA and Waffle House is a distortion of the

facts and claims herein and a misstatement of that law. It is true that each Plaintiff was

enticed, directed or induced to travel with Morris on a "business trip". But, his intentional

drugging of each Assault Victim had nothing to do with work or job du~~atsoever. If Morris had travelled to each of the stated cities on business; and, w~~ere he had gone

out into the night and knoeked some stranger on the head a~ile that person was unconscious he sexually assaulted him or her, it would be ~ous to allege that he did so as a part of his business. The exact same logic app~o the instant claims. Morris wholly deviated from any arguable job purpose ~e elected to drug and violate his victims for his corifessed personal, sociopath~~ual gratification; and, for Defendants

to persist in arguing that he should be abl~o so with impunity, hiding behind a Texas

jo~ace discrimination, is completely unavailing.

statute designed solely to address

Alternatively, even if Morris w~~ehow in the course and scope of his employment

when he committed the ass~ they were assaults, not acts of discrimination; and

Waffle House explicitly ~~erved "an assault-based negligence claim arising from ~~

independent facts u~ed to sexual harassment." 313 S.W.3rd at 799· And, as discussed

infra, under ven~4!Jle Texas Supreme Court authority, both Defendants remain fully liable for bo~al and exemplaty damages for the damages proximately caused to each and all ~~Plaintiffs.

Moreover, Defendants' contention that the TCHRA and Waffle House control this

analysis is fundamentally misplaced for a second important reason. If Texas substantive

law does control these actions, there is a considerable body of such which supports the

Plaintiffs' assaultjbattery claims, expressly preserved to them by Wqffle House, at 799.

In In 1'e VarTec Telecom, Inc., 335 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. ~ <!@ I d. at 952.(Emphasis added)." . ~

In re VarTec Telecom, Inc., at 642. T~~re, the initial inquiry is whether Plaintiffs assert viable claims under Texas law:•,a,S, if so, as to each, what is that claim?

rf:J'Y

a.>-<!2.~ in theh· Plea that the only claim available to each Defendants once again 0'-

Plaintiff is workplace sexua~\issment stated under the TCHRA. But, respectfully, that

is far too narrow a vie\U®~mplywrong. In Rockwell v. Brown, 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

42

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

43

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.

44

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:

45

(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

46

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

47

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

48

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:

<Rl"

©!~

"The first ste Qeciding choice of law is whether the laws of the various jurisdictions - flict. When a party contends that the law of another jurisdictio o uld apply, Texas courts will first examine if the applicable laws co . If the laws do not conflict, there is no need to resolve the choice ofla•~-, !em. Vandeventer v. All Am. Life & Cas. Co., 101 S.W.sd 703, 711- ex.App.-Fort Worth 2003, no pet.); Saint Paul Surplus Lines Ins. C~ eo Pipe Co., 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."

49

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).

50

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

51

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

52

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

53

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.

54

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 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

55

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

56

(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

57

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,~<i'1 , 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.

58

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 ~<!

Iil.App.3d 458, 99 Ill.~c. 317, 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

59

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.

60

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.

61

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

62

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

63

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

64

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-<A~upp.2009). 'Although o{flf'

trivial, everyday physical contacts do not necessarily r q in a battery, "offensive ~

contacts, or those which are contrary to all good ma~~eed not be tolerated." Hence

"[t]aking indecent libet'ties with a person is of c~Wa battery." 'Waffle House, Inc. v.

Williams, 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,

(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

66

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,

67

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.

68

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

69

"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 o<f@

comments, inappropriate private questions and sugg~ movements, which all ~

occurred on the job, in the context of daily duties ~e physical workplace. After

complaints were made, severe disciplina1y r-Pif ~--cussions followed against the

complainants. While certainly serious allega~, these are classic workplace sexual

harassment contentions. Therefore, the C~ decision that such complaints supported

TCHRA claims, but not assaultclai~ply has no relevance to the instant claims. Forbes v. A.G. Edwards & Sons,~~ o. o8-CV-552, 2009 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

70

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

71

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

72

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: ~ o<S@

''We have repeatedly addressed situations in which c~on law claims and statutory remedies seem to overlap, and we have~raced a framework to guide our analysis in such cases. The touchston tllis analysis, as in all statutory interpretation, is legislative inte11~ e stm•t with the proposition that statutes abr•ogati~mmon law causes of action are diifavored. Cash Am. Int'l I~. Bennett, 35 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

73

(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

74

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

75

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 merits<O£the case may require resolution by the ~

finder of fact." Id., 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.

76

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)." <V (~

Kubosh, at 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

77

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 ~<J5leadings' factual allegations as true. Texas Dept. ofTransp. v. Ramir· ~4 S.W.3d 864, 867 (Tex.2002); Texas Assn. of Business, 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.

78

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 Impro1l<ffi1iffi 90, 92 (Tex.Civ.App.-Dallas 1978, no writ). "'-

o~

The failure of a plaintiff to state a jurisdictional~unt in controversy in its petition, without more, thus will not depri~~ trial comt of jurisdiction. See W. Dmsaneo, 1 Texas Litigation Guid~11.02(4)(a) (1989); Newton, CoJ1flict of Laws, 33 Sw.L.J. 425p ~1-32 (1979). Even if the jurisdictional amount is neve~lished by pleading, infact, a plaintiffmay J•ecover ifjuris ;wn is p1•oved at t1•ial. Dorsaneo, supra, § 2.Dl(4)Cb); 2 R. McDm11J!c 1 exas Civil Practice in District uml County Cow·ts § 6.09.1 (rev.198~'eEmphasis added).''

Peek, at 804-05. See also Sadeg~ Hudspeth, 02-11-00095-CV, 2012 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

79

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)."

80

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;<ttE- 1e trial court's jurisdiction, the issue is one of pleading sufficiency ~11 the plaintiff should be afforded an opportunity to amend. 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,

81

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

~

~

82

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~

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

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

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~'<Jf the sentence

suspended, nor is he eligible for parole. ~ ·~

3. The defendant understands that under the Sex ~der Registration and ·,)j!p"'"

Notification Act, the defendant must register and keep such info~~n current in the jurisdictions 0. ((7),j

where the defendant resides, is employed, and is a studcn:~~e defendant further understands

that the requirement to keep the registration current inc~nfbm1ing such jurisdictions not later than three (3) business days afler any change of th~endant's nan1c, residence, employment or -~

student status. The defendant understands t~Gi\Jure to comply with these obligations subjects the defendant to prosecution for failure to rc~ter under federal law, specifically, Title 18, United @:)!

States Code, Section 2250, as well ~icable state statutes. ·

0

g~1mdatory Spcch1l Assessment 4. Pursuant t~Ve 18, United States Code, section 3013(a)(2)(A), immediately afler o@j

sentencing, Def~ will pay to the Clerk of the United States District Court a special

assessment ii~~ount of one hundred dollars ($100.00) per count of conviction. The payment

will be by~cr's check or money order, payable to the Clerk of the United States District Court, c/o District Clerk's Office, P.O. Box 61010, Houston, Texas 77208, Al1cntion: Finance.

Case 4:12-cr-00255 Document 129 Filed in TXSD on12/03/14 Page 3 of 16

Immigration Consequences

5. Defendant recognizes that pleading guilty may have consequences with respect to his

immigration status if he is not a citizen of the United States. Defendant UtJdcrstands that if he is

not a citizen of the United States, by pleading guilty he/she may be removed ~~the United

States, denied citizenship, and denied admission to the United States in the~ Defendant's attomey has advised Defendant of the potential immigration conseo~ces resulting from 0~~

Defendant's plea of guilty. 0~ Waive•· of Appeal and Collateral ~~v . _,J!lj

G. Defendm11 is aware that Title 28, United Stat~~de, section \291, and Title 18,

United States Code, section 3742, a!Iord a defenda~~right to appeal the conviction and

sentence imposed. Defendant is also aware that Till~ United States Code, section2255, affords ~

the right to contest or "collaterally utlac~Uonviction or sentence after the judgment of

conviction and sentence has become final. ~fendm1t knowingly and voluntarily waives the right (!@

to appeal or "collaterally attack" t~~viction and sentence, except that Defendant does not waive the right to raise a clain~Werrective assist!lllce of counsel on direct appeal, if otherwise permitted, or on collateral ~~w in a motion under Title 28, United States Code, section 2255. In the event Defendm~ o@j

a notice of appeal following the imposition of the sentence or later

collaterally atta~~ conviction or sentence, the United States will assert its rights under U1is

agreement U\~~ specilic performance or' these waivers. ·

7.~ agreeing to these waivers, Defendant is aware that a sentence has not yet been detennincd by the Court. Defendant is also aware that mty estimate of the possible sentencing

rm1ge under the sentencing guidelines that he may have received from his counsel, the United

Case 4:12-cr-00255 Document 129 Filed in TXSD on 12/03/14 Page 4 of 16

States or the Probation omce, is a prediction and not a promise, did not induce his guilty plea, and

is not binding on the United States, the Probation Office or the Court. The United States does not

make any promise or representation eouceming what sentence the defendant will receive.

Defendant further understands and agrees that the United Slates Sentencing ~clines arc

"effectively advisory" to the Court. See United States v. Booker, 54~. 220 (2005).

Accordingly, Defendant understands !hat, although the Cowt must '"l;h.ult the Sentencing 0~~

~1e Court is not bow1d to Guidelines and must take them into account when sentencing Defend'

o~"'l

follow the Sentencing Guidelines nor sentence Defendant withi~calculated guideline range.

0 @~

8. Defendant understands and agrees that eacl~"d all waivers contained in the

Agreement are made in exchange for the concessio4e by the United States in this plea

agreement. }?,<tf!J ~'»

~

The Unitcd'iLII:Js• Agreements

9. The United States agrees to ,e~Qfthe following: (a) If Defendant plead~to Count Five of the superseding indictment and persists in that plea th~ utencing, and if the Court accepts this plea agreement, the Unitc~.~~es I move to dismiss any remaining counts of the superseding indictmc~'1V'c time of sentencing; .

¢

A~~:Jt ~({Y

Binding- Southern District of Texas Only

I 0. Th~~d States agrees that it will not further criminally prosecute Defendant in the Southem D~ of Texas for offenses arising from conduct charged in the superseding

indictme~'his plea agreement binds only the United States Attomey's Office for the Southem District of Texas and Detendant. It does not bind any other United States Attorney. The United

Case 4:12-cr-00255 Document 129 Filecl in TXSD on 12103/14 Page 5 of 16

States will bring this plea agreement and the full extent of Defendant's cooperation to the attention

of other prosecuting offices, if requested.

United States' Non-Waiver of Appcnl

11. The United States reserves the right to carry out its responsibilities u~ guidelines

sentencing. Specifically, the United States reserves the right: ar/Jj (a) to bring its version of the facts of this case, including its0 e~ncc file and any investigative files, to the attention of the Probation Offic~~nnection with that office's preparation of a presentence report; 0 @@

(b) to set forth or dispute sentencing factors or facts~~~~ to sentencing;

o@j

(c) to seek resolution of such factors or facts i!~fcrcncc with Defendant's counsel and the Probation Office; Qt;§; (d) to file a pleading relating to these iss)!~ in accordance with section 6At.2 of the United States Sentencing Guide~~~nd Title 18, United States Code, section 3553(a); and , Q"' (c) to appeal the sentence impos~r the manner in which it was dctcmiincd.

St~c Determination

12. Defci1dant is aware t~cntence will be imposed after consideration ofthe United States Sentencing Guidclin~ Policy Statements, which are only advisory, as well as the

provisions of Title I ~ited States Code, section 3553(a). Defendant nonetheless ~

acknowledges and~~ that the Court has authority to impose any sentence up to and including

tl1e statutory ·-~~m ~Ql"

set for the offcnse(s) to which Defendant pleads guilty, and that the '

sentence ~mposed is within the sole discretion of the sentencing judge after the Court has

consulted the applicable Sentencing Guidelines. Defendant understands and agrees that the

parties' positions regarding the application of the Sentencing Guidelines do not bind the Court and

that the sentence imposed is within the discretion of the sentencing judge. If the Court should

Case 4:12-cr-00255 Document 129 Filed in TXSD on 12/03/14 Page 6 of 16

impose any sentence up to the maximum established by statute, or should the Court order any or all

of the sentences imposed to nm consecutively, Defendant cannot, for that reason alone, withdraw a

guilty plea, and will remain bound to fulfill all of the obligations under this plea agreement.

Rights at Trial * 13. Defendant understands that by entering into this agreement, he #dcrs certain

rights as provided in this plea agreement. Defclldant understands that th~s of a defendant 0~

include the following: i!ffi.

0~

(a) If De(endant persisted in a plea of not guilty to~ charges, defendant would have the right to a speedy jury trial with the ass~'st! of counsel. The trial may be conducted by a judge sitting without a jury if dant, the United States, and the court all agree. @j {b) At a trial, the United States would be ~ired to present witnesses and other evidence against Defendant. Dcfen · would have the opportunity to confront those witnesses and his attomey ' be allowed to cross-examine them. ln turn, Defendant could, but would not €})quired to, present witnesses and other c\•idence on his owu behalf. If the ~tnesses for Defendant would not appear voluntarily, he could require their ati@.ctancc through the subpoena power of the court; and r!J2;; (c) Defendant~~ At a trial, rely on a privilege against self-incrimination and decline to testify, and no ~~~cc of guilt could be drawn from such refusal to testify. However, ifD~ant d(~Sircd to do so, he could testify on his own behalf.

(}~~actual Basis for Guilty Plea 14. Defenda~~)leading guilty becnuse he is in fact guilty of the charges contained it1

Count Five of th~seding indictment If this case were to proceed to trial, the United States

g

could prov~~element of the offense beyond a rea.,onable doubt The following facts, among

others would be offered to establish Defendant's guilt:

On or about May 8, 2011, HENRI DESOLA MORRIS {MORRIS) traveled in interstate

commerce and committed, and attempted to commit, the drug-facilitated sexual assault of A.F.

Case 4:12-cr-00255 Document 129 Filed in TXSD on 12/03/14 Page 7 of 16

violating Titlel8, United States Code, Section 2421. In the process of nttempting to c'Ommit the

sexual assault against this woman, MORRiS violated the law of New Jersey. Specifically, as to

Count Five, MORRIS violated New Jersey Statutes Annotated 2C: 14-9(b),lnvasion of Privacy.

Based on their investigation, the FBI obtained a search warrant for MORR~d his

belongings to be executed at IAH on February 27, 2012 when be was schedu\d'2>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

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 MORl<JS utilized his Continental Jrequent flyer miles to purchase a ticket

for A.F. o~1itcd flight #3274, which departed from Houston Intercontinental Airport, Ho\Jston, Texas to Philadelphia International Airport, Philadelphia, Pennsylvania on May 8, 2011.

Continental Airlines also confirmed that MORRIS traveled on May&, 2011 on Continental

Case 4:12-cr-00255 Document 129 Filed in TXSD on 12/03/14 Page 9 of 16

Airlines flight 1676 !romllo\Jstonlntcrcontinental Airport, Houston, Texas to Philadelphia

International Airport, Philadelphia, Pennsylvania.

Upon arrival in Philadelphia, MORRIS and A.F. met up and checked into a Marriott hotel

in close proximity to the airport. ~

The following day MORRIS and A.F. met with two different clients i~hiladclphia

,'t",--~n arrival in

metropolitan area before traveling in a rental car to Newark, New Jersey.o~yv

Newark, MORRIS and A. F. checked into a MarrioH hotel, in Newat*V Jersey. MORRIS

instructed A. F. to meet him in the concierge lounge at the lvfarr~Q~.F. met MORRIS in the concierge lounge. MORRIS asked A. F. if she wanted to h nncr in Manhattan and if she @}

wanted to see the city. MORRIS told A.F. to have a 'qdrink" and she agreed to have a vodka ~"-~

and soda. MORRJS prepared n drink for A. F. ,~"ffe drugged and presented it to A.F. in a

ex~\Jy strong.

travel cup. A. F. recalled the drink being

After MORRIS prepared A.F.'sjWJ~J)and added crushed Ambien pills to it, she and

MORRIS departed the hotel in the r~ar. A.F. stated after consuming an unknown lffilOUnt of

the drink she began feeling "rc~9eally tipsy" while driving into Manhattan. A.F. described

feeling inexplicitly "ver~~atcd" when she and MORRiS mrivcd in Mm1hattan. A.F.

recalled parking on th~eet in Manhattan, exiting the vehicle, and walking into a train station that ¢~(/)'

had murals on t~~ing. MORRIS stood behind A.F. and had his hnnds on her shoulders while

he talked to ~out the murals. A.F. m1d MORRIS walked to a restaurant to eat ditmer. A.F.

lost her t~ory after recalling having their picture taken in the restaurm1t.

The next memory A.P. had was awakening on her bed in her hotel room. A. F. was

completely naked and a pillow wa$ covering the side of her face. The covers were pulled down

Case 4:12-cr-00255 Document 129 Filed in TXSD on 12/03/14 Page 10 of 16

around A.F. 's ankles. A.F. heard a "click" S0\11\d and observed MORRIS standing over her

holding his cellular telephone. MORRIS had been taking pictures of her with his cellular

telephone. A.F. never gave MORRIS permission to photograph her nor did she consent to the

photographs being taken. These photos were recovered on a thumb drive found ii~RR!S'

possession during the execution of the search at lAH. The date/time stamps (J!,i;,ed in the

EXIF data embedded in the photographs corresponds to the date of travel ij~hc time A.F.

0~)

believes the images were taken between approximately 2am and 4am.,§ 0~

A. F. recalled feeling very "disoriented," "groggy" and "~Qtired". A.F. stated she

was very familiar with operating and navigating through Ill~~~ Blackberry phone but was so disoriented and groggy she was unable to properly ins~re phone.

The following morning A.F. observed scrat"i~rks on each of her hips. A.F. described . . ~ the scratches as being from the front to the b~~t·i~ontal, as viewed in a standing position].

A.F. further recalled having some bruisi,n~~he back of her upper Je[l ann.

After meeting with clients in~rk, MORRIS and A.F. drove to meet with a client in

Connecticut. At the conclusio~Qe meeting, MORRIS and A.F. drove to the Marriott hotel at LaGuardia Airport. While ~g to LaGuardia MORIUS told A.F. that he did not want her to

feel awkward about .

wh~ 0<f1P}

occurred in the hotel room in Newark, that he did not want her to feel

like she should ~~~another job, that he wanted her to be part of the company for a long lime,

and that she !~one a great job working with the client in Connecticut. MORRIS told A.F.

that hew~ A. F. to feel comfortable to travel with ]lim aguin. MORIUS told A.F. that he had

never "done anything like tl'lis before." MORIUS told A.F. that he was "lonely" and that

"sometimes I just need a hug."

Case 4:12-cr-00255 Document 129 Filed in TXSD on 12/03/14 Page 11 of 16

After the search wanant was executed in February of 2012, thumb drives found in the

Defendant's belongings were searched. This search revealed photographs of A.F. taken in New

Jersey. The photographs taken in New Jersey depict A.F. on a bed. There are ~ody nude

images with her face completely covered by a pillow. There arc images of A.Fd~sls as well as close up images of her vagina. Based 011 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 <!'@~

of all assets

,8.

0

over which he exercises direct or indirect control, or in whicl~1as any financial interest.

Defendant agrees not to dispose of an)' assets or take any,~·- that would effect a transfer of

property in which he has an interest, unless Defendant ~ifs the prior written pennission of the

United States. iJ!P 17. Defendant agrees to make compl~ancial disclosure by tmU1fuHy executing a sworn financial statement (Form .

OBD-500~imilar

(Cfl)

form) within 14 days of signing this plea

agreement. Defendant agrees to aut~~ the release of all Jlnancial infom1ation requested by the

United Stales, including, but not lQ)cd to, executing authorization forms permitting the United

Stales to obtain tax inibm1"1~ o~

bank acco\Ull records, credit histories, and social security

information. Defcnda~'J\es to discuss and answer any questions by the United States relating ~"'~fimancm' I dtsc

to Defendant's com~ ' Iosurc.

a'f:.~ .

18. Dc~nt agrees to take all steps necessary to pass clear title to lbrfeitable assets to the Unite~~ and to assist fully in the collection of restitution and fines, including, but not limited to, surrendering title, executing a wammty deed, signing a consetll decree, stipulating to

facts regarding the transfer of title and the basis for the forfeiture, and signing any other documents

Case 4:12-cr-00255 Document 129 Filed in TXSD on12/03/14 Page 13 of 16

necessary to eftectuatc such transfer. Defendant also agrees to direct any banks which have

custody of his assets to deliver all funds and records of such assets to the United States.

19. Defendant understands that forfeiture, restitution, m1d tines nrc separate components

~

of sentencing and are separate obligations.

Restitution

a

20. Defendant agrees to pay full restitution to the victim(s} reg,a1~s of the count(s} of ;~,

conviction, Defendant understands and agrees that the Court \~l~ennine the amount of restitution to fully compensate the victim(s). Defcnd1111t agre~Q~ restitution imposed by the 0~

Court will be due and payable immediately ru1d that Defen".;_~will not attempt to avoid or delay ~'*

payment Subject to the provisions above, DefendQvaives the right to challenge in any 0~

manner, including by direct appeal or in a collaten'!~oceeding, the restitution order imposed by '~

the Com1. ~(j ©Fines

r17/ , (.JJ'Y

21. Defendant understand~~nder the Sentencing Guidelines !he Court is permitted to

order Defendant to pay a fin~Q suiTtcicnt to reimburse the government for the costs of any imprisonment or term oQ~~ised release, if any. Defendant agrees that any fine imposed by

the Court will be due 1\nd payable immediately, and Defendrult will not attempt to avoid or delay o~~)"

payment. Sub~ the provisions contained in the plea agreement, Defendant waives the right

to challe~~nc in any mmmer, including by direct appeal or in a collateral proceeding.

Complete Agreement

22. Tlus written plea agreement, consisting of 16 pages, including the ultachcd addendum

of Defendant and his uttowey, constitutes the complete plea agreement between the United Stales,

Case 4:12-cr-00255 Document 129 Filecl in TXSD on 12103/14 Page 14 of 16

Defendant, and Defendant's counsel. No promises or representations have been made by the

United States except as set f01th in writing in this plea agreement. Defendant acknowledges that

no threats have been made against him and that he is pleading guilty freely and voluntarily because

he is guilty. ~

23. Any modification of this plea agreement must be in writing and~ by all parties.

Subscribed and sworn to before me on -~<.~-{;,~[____-1_ __ , 2014.

~

<t2_~ J. BRADLEY, Clerk ~NlTED STATES DISTlUCT CLERK.

Q

f£1~- .J, ~ .-.:::-::::.._ De 1 y Uniteds!tesp· trict Clerk

APPROVED: ~~ rF!fij

Kenneth Magids01.\d' United States 4_ttamey o;:£f6f

By:

. ,0~ £_

Dan Cogdell Attorney for Defendant

Case 4:12-cr-00255 Document 129 Filed in TXSD on 12/03/14 Page 15 of 16

UNITED STATl<:S DISTIUCT COURT SOUTHimN DISTRICT OF TEXAS HOUSTON DIVISION

~

UNITED STATES OF AMERICA § § ~

a

v. § CRIMINAL NO.~SSS §

HENRI DESOLA MORIUS, Defendant.

§ § <6~

(~ Q'i!!!

~$

Q"'@;;J -~

PLEA AGREEMFC1 ADDENDUM

I have fillly explained to Defendant h~cr rights with respect to the pending indictment I

have reviewed the provisions ofth:~~tates Sentencing Conunission's Guidelines Manual

and Policy Statements and I have~cy and carefully explained to Defendant the provisions of ~~

those Guidelines which may~ in this case. I have also explained to Defendant that the

Sentencing Guidelines a~y advisory and the court may sentence Defendant up to the

maximum allowed l~1te per count of conviction. Further, I have carefiilly reviewed every

-"if:::$) with Defendant To my knowledge, Defendant's decision to enter into part of this plea ~~ent

Q

this agree1~ an informed and voluntary one.

~c:-~_Av Date

Case 4:12-cr-00255 Document 129 Filecl in TXSD on12/03/14 Page 16 of 16

~([@

~

I have consulted with my attorney and fully understand nil my d~ with u respect to the

fz~'

indictment pending against me. My attorney has fully explained, and5f~derstand, all my rights 0~

with respect to the provisions of the United States Sentencing ~Qission 's Guidelines Manual

which may apply in my case. I have read and carefully rev~e~very part of this plea agreement

nd this agreement and I v~«frily agree to its tenns.

;&.. c~t/1'1 -~~---- ~ ([@

~1\j

~ ~~ 0©5

·~ ~1\j

~© ~

Software exec pleads guilty to drugging, abusing female employees ... http://wlvw.chron.com/news/houston-texasiaiticle/Sudden-ctelay-in-tr...

Sul>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-el<Js)

updated: rMdjltcaaQrHmenl "Tha tru\11 eome.o otl~ • ~~ldO'll! oflhewomen allegedly Ylctimlzd m~t away with It for a l(lng tim~ ~nd MW evefYbody knl)w.s whr. he lmly Is, •

I'

I of4 02/20/2015 1:53PM

Software exec pleads guilty to drugging, abusing female employees ... http://www.chron.com/newsfllouston-texns/nrticle/Sudden-delay-in-tr...

[:-

Obamacare Sign Up gohealthlnsurance.comiObamacare

You May Still Quality To Enroll I Explore Your Options Today.

sh{. sat be$ld.,sevcr1111>1her 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::.,,. He was arrestW In 2012 at aush tnter.c:ontioen\RI Airport as he pr~pared \1) reave en anorherbusiness trip with Tht 7·ytar Itch l$1•.ul fa~\$ (( ~ 11 wl)man who had cornpl~lned to the FBI about him. a!'ld pretending to be going elorlg on the tsip so that agentg could galhtr e~ldenca. 'Kit' "'-

'". -"'- pror!ill/lion exp~itclte$ Morris's allowey, Dan Cogdel~ had said th~l the women were consenting ad~l\s who wminoly drank wllh M~~rrls, and that t.\ol'(\s ne~er drugged anyone Cit Intended to break any laws. He al5o uld they were only rna!:Jn9 aceuutlans aga!tist him lo bolster civil suits pEndin!Jin Harrls Count)'.

.

""''''"" 0"

~-

j)'

fwHou&ton

Morris sp«:iffcally pleaded guilty to one cmmt of taking a p~raon ~eros; state ljneslo cllmmil a su crime.

~""' ~ .])_

to bo~t lineup

·v

~ther-s-ex ~cal\<ial prO!Iiplt fWeraiiAwtuilM Tennessee Mtn Property o .~"">"'""""

,.1~ Seew11atSpol\ll lllt!s,rated swimsuit modelsre~lly tntand.com ~~ v looUh Waterfalls, vrews & Level Mtn Land Only Minutes From ~«t!fj CooltiFL.;cneeplhtlm~t~fllll~mns Chattanooga, TN. ~ ;~~~obaJJd'slnd$hlgtrtl'iilsiJ~s'.heHouston

COntribute to this sloty. SEond u~ a tlp Su~<yost a C1u~ti~n ~ Hot Topi~s

E·mall Print Two~t :17 c{f billle Schiller I Hepoll~r, Houston Chronicle Em~ilf.l~ ~ Famou$ ptople who l'lt~ Ctdholle

You Might Al$o Lik~

LOU!Jtim0 eelthtily JCYMl:B<!)'On~e Ml ~ollples:Then an<f now \(IOl<illJI 'ftawless' #WeAreHouston

We l\eco1mmmd

'The'Biuue<:l eSpuks!(M~d~Mln) • DSK trial: PsostTtute said ot~y w~s like • KowC!l~'n

~ ourOraysCouldlmpMtYour 'anlhjuily'

• l>~llli$t~h~rgfld ln deeth cfpa~entgetun9 20 O•~ce ~a!tloC..ntmQ teeth pull~

• ftr 11 rrtLunslittleloThe Cm~ !J (SI)'IeBis!ro· Looll Book1} • HustyYate$ see$ 'eerr~· $ll'llli~Hll~s between Andt~O Yatn, fleW P!ttsblll\lh-

• 14 Blggest Chii!<~ters In Sport~ Hlstory.•. ll~ Will Sh~Jek YUill (Pfenroom\IIP) ' WGmansMuggfes (ltlhlnto Jallln her vanl11a • Ktty Hi~h.School MumnlAssodaUon )lQS new • Ctlfiu~ RO$MlO'$ l:~tosiYe ln$tagram Pit$ w~bsite (losslp)

• Study warns of mag a ~lallght to oome • The Most Beaot!M C::etebrltyW~nlOn o~erthe ~go of 5() (SIIe Budgets) • lwo Hall$lon nelghbD!hoCH!s calf~d most daJJgerou1ln U.S.

• 8 Col~b6YOUWOtl't BelieVe Went TCI Rehab {tntEn>slicle)

• Bus drl'l'er a\n.lggles to support 9 ch~d1en • Family drMm$ of having their owo home agaln • Rockt\$ fltll\g $miles to th~ n~edy • H~a.lthy lddu I~ Goodfellow$ roor~'$ $Ole wiah • ooodfellow9 helps si[)fieg$ get gifts they deserve

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@cogd<Jll-!aw.com 20

21 ALSO PRESENT:

" MR. TOMMY KLTNG, VIDEOGRAPHER MR. DESTRY QUffiOZ, VIDEOORAPHER "

23

MR. TREVOR MOAA!S MS. BETil JACKSON (Present from 10:09 to I 0:38) 24

" " "

u.

RIO GRANDE VALLEY -(BOO) 88 CHRISTI - (361) 883-1716

ANDREA FARMER 7/11/2013 19 (Pages 73 to 76)

73 75 Q. Oka)•. How long did it take for you to be ~ Q. Did you, did you graduate from the University 2 2 offered a position? ofTex:as?

A. I Vi'RS offered the position that same (fay. 3 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 wonl<l cold call ~t n clients who had, they 9 Edible Soflware clients. And then that he wanted to !Lad been talking to ~hiffl::reached out to us saying they 9 visit n cunent and '\'Cry old client ln Newark, and then n 10 were lnten~sted h~U -~-rare. AndJ and I would write 10 prospect ln Connecticut, and then we were sllpposctl to 11 different p!etcs, ~ nd marketing type pieces about 11 YlsSt another client in New York as wen, but that ended 12 Edible Sofhy~ 12 up cnuc~:llng.

13 Q. Do~~~~e expcric11Ce doing that type of work? " Q. Okay. " A. UJt!W\, " A, So he, upon this trlp coming up~ he snld that 15 Q. ~"{; 1where? 15 he thought it would be a really good learning experience 16 A~fi the sales sltJe, I sold '~'ith 1\IaUress Firm, 16 for me and fillggestcd that I go, 17 11 and I did sales training with them. And when I '"'as in Q. Were you excited to be going?

18 LeaL·nfng Deydopment at MAttress Firm, I wrote conf('llt, tralnlng sales \'on tent there, " A. Yes, nbsoluteiy.

IS " Q. Had yon ever been to the Efl~t Coast before?

And from a accounting nml inventory standpoint, J, A. I had been to the East Coast1 IIJ~;c southeast, 21 21 in coiicge, bad n'orked nt the Crowue Plaza Hotel and did but not i\lanhRttan, New York aren.

22 their inventory and accounting fm· food and b~serage, "23 Q. So it was an opportunity for a new, anew 23 which was the bar, restaurant and room serl'lce. experience or to visit some place you hadn't been?

So I guess an of those facets combined, And I did A. Yeah, b11t I mean, l've been a Jot of places, so ~5 trade shows for Mattress Firm as well. 25 you know, and I cerfRfnly -~if was a work trip, so I did

U.S, LEGAL SUPPORT

RIO GRANDE VALLEY -(800) 881-0670 CORPUS CHRISTI - (361) 883-1716

ANDREA FARMER 7/11/2013 20 (Pages 77 to 80)

77 79 1 understand Umt tt \Vns going to be like in the ports of Q. Where did you go? 2 New Yo1·k as well, soJ yes. A. We went-- Henri wanted to go to the concierge 3 Q. Which is where the clients are? 3 Jouuge, but since it wAs Sunday, It wl'!s closed. That's 4 A. Right. 4 bowl rem~mbertd it was SundAy, And he-· so we ended up 5 Q. Especially the searood people. 5 going to the bar nnd orderlng food from the bAr, because 6 6 A. Right. tbntwns the only thing that wns open At that time. So I

7

Q. How did you -- what was your frrst stop on the went down on my own, and then Henri met me like a couple 8 .~

trip? 8 of minutes later.

' A. The hoteJ. What clfcnt was my first stop? , Q. When-- how long were yot~~ oefore Henri " Q. No. ·what city was frrst? 10 v.-as there? ~r@ A. Philadelphia. 11

12

A. T\l'O minutes, (U

" Q. How did you get there? Q. Did you visit \Vithlf~1'during that time you 13 A. By airplane. 13 v.oere there? 9

~

A. Yes. ~

14 Q. Did you travel with Henri or by yourself? "

lS 1 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. ~~~~ :<t A. Ub-huh.

Q. What day of the week? ~ 25 Q. --are you, do you have flll)' infonnation or (U)' ~78 80 1 A. Sunday, lt:'4/ 1 testimony about anything sexunll)' inappropriate or <' Q. Okay. After he picks you up frm_~alrport, 2 se:-.."Ually offensive that happened between you and ~

3 3 where did you all go? Mr. Morris then? 4 A. We went to the hotel. (()) A. No.

5 Q. Were you present nt the c!~" process? Q. What was your conversation like? A. I don't think I \'i;n~s li r~~ding over hlm.

6 A, It was just polite conYersation between two 7 1 Q. All right. He chec 1 in? people wh-o dldn1t !mow ea('h other th.at wen, We tallted 8 A. Yes. rF ~ 6 a. bout our flight. He was talldng to the bartender as 9 Q. You got si111~e~mlr room? ::~ well, She was n blonde lady. l think there was some A. Uh~bub.<>~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<e feel on his like pants pockets where 2 onensive or sexually inappropriate between you and ~ his pt1one is1and 1 can't flnd It, 3 Mr. Morris. He's like, "Hey, stop, What n1•e you doing? Stop, A. Can you be more specific? 4 stop, stop that. 11 Q. I mean, do you have any recollection of 5 And rm lil{e, "No, you haye to gfyc ~~you cannot

6

6 Mr. Morris engaging in anytl1ing during that trip that wa.s haveR plctut·e of me like that. Why are )'OU in here?

1 1 sexually offensive or inappropriate with ynu? What's bappening? 11 A. Yes. I don't h~we a recollection of dinne-r or 8 And so then he, he walks o~.d!H! room, and I shut 9 getting back to tbe hotel. the door, and l'm Just Iilu~ -- I$m~ no Idea wbnt's 10 Q. On what da)'? lO going on. And Chen he,, G nd he's Hkc, 11 See, look,

11

I don't hnye anr pictur o ·ou, 11 and he hands me his " A. On- thls would ha\'e been Monday night.

~

12 12 Q. Okay. So your second night of the trip? BlackBerry.

13

" A. My setmld night there.

14

Well1 I sta1·t tryhU look flmlUgh it, but 1 can't like even really~~uc bow to work the phone. Like " 15 Q. And that's a different l10tel thEm ·where you ·were the .first time? 1 $ I thinl'- I Wfl&!_l9,;Wg to look through the pictures, but

A. It's a different hotel, It's RMarriott in 16 like I co~~liiluk to flgu1'C out how to get to where I 17 Nen·ark. 11 wnnte~1af

Q. Downtown Ne\-vark, or by Newark airport? u i"~~·~s really fl'nstratlng, I rcnte1uber, becnusc A. I don't know. 19 ~~~<j~::sd BlackDerry forever, and I know how to like

20

~Jl sec1·et folders and-~ or not secret folders, '" Q. You just !mow it 'vas in Newark.

~ ;~ Hard to access folders?

A. Right, " Q. Okay. " A. Beet~ use the client that we were meeting Ibe o ~ A. Hard to access foldea·s, right, and look In the 24 24 next day "'as in Newark. So we went to dlnuel', and I files, And so that's what, In nt)' mind, I wanted to do,

25

25 bJanl{ out, and I don't remember anything up until w~~ but I just couldn't tlllnk about like what I was doing or

84

1 up "ilh lll'c n pillow and some tO\'Crs on,· my f~nd 1 bow to clo it or n~nlike -~ youluloW, I just remembe1· some bloukets around my ankles and hea_~t~~tbod)' tnl1e t ba,1ng this phone in my hand lll<e 11 l'vc got to get this a plelure. And wben I moyed tb.e eonrs ~'1Ienrl's :> 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 picture<Sf.v:i:~en in, where were you before H Q. I'm just asking. 14 it? ~Jd'-~ 15 A. Based on what I'm wearing and the fact tbat I 15 A, At tb~·eU 1 we were Rlot of places. Do H remember being there and taking pictures and the context 16 you wa~fustart from the beginning? 11 ofthlscnnversation, yes. 11 Q.iN~hat I want 1o get at, the clothing, you 18 Q. rm nsking you-· 10 sal~)~" call what you were wearing.

19 A. Yeah.

19

--~ h~h11h,

20 Q. You know, I know who this person is because 20 '!J!Jf!'

To me it looks like a top.

:a he's a public figure. But I'm asking you. ~ A. Right. 22 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:e<llike he ®J~<e a pL·omhunt A. Yes. 5 nose and kind ofredtlisb hair, an~hcrc was Hnot1ter Q. After the work day, you changed outfits.

6

6 gentleman with him that wns m~ lke dfdu't lun-e Riot A. Yes. 7 of hair, but I -don't~~ suffice~n 'I have a good ., Q. Okay. 'Vhen you changed 011tfits, you were at 8

'

memorr.

Q. Uh-huh. "'-

U 8 that airport ~· l'm sorry k- you were at that hotel in

9

Nc·wark?

10 A. And lcJm'\,t~fdetnils. 10 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 un<lcr a, \Ye went in fl tunnel. this. This is too strong," I ,,.esJike... "Let's mal<e two 9 Q. Okay. 9 drinksoutofft. 11 -~ 10 A. And we were on a b1·idge, yes. 10 He was like, "No, tlo,_d fiflll', rt•s fine. u Q. Do you remember going through the tmmel? 11 Here, let me get you an~bottle ofsodn, and you can i2: A. Kind of. lt starts getting fuzzy wbcn ·we were 12 just kind of add to Jt.~

13 driving there. 13 And I '''as 11kep~I think we should just ntake H Q. Okay. Prlor to driving there, did you have 14 tl1is two drinks~~ 15 anything to drink? 15 He's likeb 11 ~tio, no, just here." 16 A. Yes. 16 And s~d the larly M. the•·ewasn't nny soda 11 Q. What? 11 right t~'hlon't thlnk. And so I asked the lady that 18 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. Ol<a)'· " like guzzled It down. "20 THE VIDEOGRAPHER: Time is 12:21 p.m. We're " And (ben we continued t& walk, And then 1 remember. off the record. " him giylng me the option between two restaurants. And I " (Recess from 12:21 p.m. to 12:54 p.m.) "23 guess I picked one. I don't remember tbRt. Or I don't " THE VIDEOGRAPHER: Tite time is 12:54. Weare

,. remember which one it was, but th~•·e ·wns like a -1, it " recording.

dnesn1 t matter. 1 couldn't describe It, " Q. (B)' Mr. Rosenberg) Okay. Ms. Fanner. we've had " But~~ and that's ·where I remember slttillg --and " a break. And before the break, we stopped the

U.S. LEGAL SUPPORT

RIO GRANDE VALLEY -·(800) 881-0670 CORPUS CHRISTI- (361) 883-1716

ANDREA FARMER 7/11/2013 25 (Pages 97 to 100)

97 99 1 questioning at, I believe yo\I told me everythiilg you A. Correct. 2 Q, But after Henri left, you remember sleeping for remembered about the dbmer in Manhattan ww

3

3 A. Uh-huh. about four more- hours? Q. --the night you believe you met someone who A. Yeah. Because I feel like-- I think I looked 5 was purported to be a comedian who you can't identify. s nt tht dock and lt was around 4:00 n.m. I beli~·e the

6

A. Right. question I answered was, "Do you lmow how long Htnri was Q. And you don't remember .an}1hing about the trip 7 to your room?" No, (don't know bow long he \)'fiS in my 8 back to Newark, ~ room. When I woke up, I belleyeJl~ ar.ound 4:00a.m.

A. No. And then I remember blm knoc~~the door and waking Q. But you do remember-- you shared with us what 10 me up a( around 8:00. That'~~ came up with four 11 you did remember when you did retumj when you were at 11 more hours. (F ~ 12 the hotel, and that is Henri in your room with yon had no 12 Q. Did you haYe- any~aiinfto believe at that 13 clothes on. 13 point that you had be$n~cally violated'l 14 A. UII-llUil., u A. Yes. ~ lS Q. And you believed he was taking pictures. 1s Q. Okay, gt@- hion? 16 Correct? 16 A. It,.,. •li!<e red, and I had some bruises 1'1 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 feellil<c anybody lmd sex wHh me.

5 A. Correct. 'V Q. Allright.

Q. But the pillows in the be~. situated in a A. But I was ldnd of III(e sore in my femnlc

7

fashion you were able to deaEsc · me, regions.

A. They were, like J(g11 hey were, there was Q. You believed you were sore in your female

10 liken lump on-- mi:'be'h cwas a couple of pillows at 9 regions?

the end of the bcdJ AJl en most of the pillows were 10 A. Yeah, but not~~ like on the outside.

11 11 [dnd of Uke nii·out nnd oyer my fa.cc. Q. Okay. Where ·was the bruising? I'm sorry.

Q. At any 1 this transaction-~ 1 know your 12 ll A. I had bruising on my hips, and then at the top

1

13 testimony is t enri took pictures -- did }'OU take any 13 of my left arm, like on the bncl< side of it.

14 pictures to.-~xamp1c, to preserve 'Nhat the room 14 Q. And without belaboring this, so I can move on 1 15 looked wt~~where you were, or Rllything that '\Vould l$ none of this was documented by terms of photographs or 1G" help ~dy looking back to reconstruct the scene? H;: other ways to preserve the fbct that you had been1 1?

" A. No. experienced some trauma. " Q. You owned a cell phone at that time, Correct? lB A. " 7ell, other than the pJcturc that Henri took. "

19

A. RigM. Q. I'm talking about the bruising. Did the

20

20 Q. Wns it a phone that had a. camera feature in it? pictures depict bmising?

21 A. Yes. A. Yes,

22

" Q. You told me you don't remember what time this

23

Q. Okay. At that point, when did you·· at that "24 was.

24

point, you never-- you never reported it to My body at A. Uh-huh. that point. Correct?

25 25 Q. Right? A. No.

U.S. LEGAL SUPPORT

RIO GRANDE VALLEY -(800) 881-0670 CORPUS CHRISTI - (361) 883-1716

ANDREA FARMER 7/11/2013 26 (Pages 101 to 104)

101 103 1 1 Q. How did you~~ tell me how you obtained the Q. ··if you're ready.

~ pictures. ' A, Uh·huh, 3 A. The FBI showed them to me afte1· they had fRl{eU ' Q. You realize you weren't ready.

' them from Henri. ' A, Uh-huh. ' Q. All right. Up until the pou1t of the FBI ' Didn't say M)'thing to him other than you were Q.

6 showing them to you. you bad never seen them? 6 going to get re~dy and then you got •• ns you described.

1

' A, No. got dressed? • Q. And you were able to identifY them? 8 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 ol<ny.

A. Marbc a little bit, mnybc like 3~}/i~t&. Q. That night, did you go to dinner? Q. Okay, You had w• you had conver~~-with A. Yes.

Henri about what happened the night \~· Q. Where did you go to dinner? s A. J, I tall{cd about it, 1u1d sa~· Jg)l\atitwas 5 A. This like Italian place somewhere in wrong and Inappropriate. An1e nd thlll- I need~d to 6 Connectlcut.

find a differ~nt job, g Q. Oh, so you drove from tho docks--

Q. You said that? {)) A. To Connecticut. A. Uh-huh. ~ · Q. --into Connecticut? Q. And what di% I 10 A. ffi1-huh.

u A. He said, )'• 1 , no. 11 He was like, 11 Don 1t 1l Q. Do you remcmb~r where in Connecticut?

12 wony about i a. If's not a big deal. No1 no, 11 12 A. No, wherever the Davidson Is,

13

" t's inappropriale? It's not Q. J'msorry?

here's nothing inappropriate. It's A. \Vherevu Davidson Foorls --it's a company.

15

It's a big-

Q. 'htng else between the time you got to -w 16 Q. The client is named Davidson?

1 ~ ·was this a client or a prospect? A. Right.

A. Client, Q. And the city where they're in is the city you Q. Anything else between the time you got to the I !I were in?

20 client? A. Yes.

" A, Huh-uh, Q. At nnypoint didyoujusl. did you come-out and 22 Q. Okay. You had dinner at an Italian " 23 say to him. with specifics, ''You took picture-s of me restaurant w-

A. Uh-huh.

~~ without my clothes en," or aJ)ything pinpointing the exact Q, •w in that area? 25 conduct that yo\l're describing? A, Uh-huh,

U.S. LEGAL SUPPORT

RIO GRANDE VALLEY -(800) 881-0670 CORPUS CHRISTI - (361) 883-1716

ANDREA FARMER 7/11/2013 29 (Pages 113 to 116)

113 115 1 Second of nil, )'011 haYc a wife," And I was like, "And it Q. Later, like when? :< Is" and 1 WllS like, 11 1 don't know how often you do w•

2

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<e 24 relationship professional." probably around like 9:00, because the concierge lounge And so he said, "Okay, but I still, rm stiJI going U ' 24 25 was stlll open, and there was a basketball gallle playing,

g 14 116 1 to gh·e yon a hug." (@> 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<e he ~I 3 up there watddng tlte basketball game. And we had to el"pressed to him tllat J thought tltat ~ wrong and 4 change our flights, because the othl'r customer that we

5

inappropriate and that it could nev 1.'liifppen again. And were supposed to meet tfmt Thursday eaneele<l on us. So 6 6 be told me that he and his niCe l ltring problen1s, and we were going to fr)' And take an earlll'l' flight out.

1 that they didn't really have a age anymore, and that And so I want to say Henri was there before·- at 8 he had ne\·er done anythijgl\~ this before, and that-· a soml' point we tool< the rental ea1· back, and \l·e tonk 1he ldnd of almost expres~z'to-.--fuc-lii[C ~-well, I don1t 9 slndtle bal'k from the rental car. And then we ·were up In 10 10 InlOw. I don't want t me an)'thlng, But it, I got the concierge lounge, ::uul Henri couldn't get the computer 11 the Impression he i~- feel that it was as wrong as I 11 towork.

12 rclt u was, nna~Ylwt the married one tu that " And so he was llkl', "Oh, you know, help me, I can't 13 situation. ~"' l l tlgure this out. Ws not worldng." S-o I'm Uke Jdud of 14 So that IW!ormnde me feel like-~ il really did 14 getting where he needs to go.

)inion of him, if t11e night before hud not, or " Q. Computer in the -concierge?

" 17 before had not already, that I like shu·ted seeing uu·ough bfs facade of like stuff.

A. In the conciergl', An(l there's like these n lllllars and these big round tables. And Pm kind of like

"19 Q, At any point afie( thnt, did you start putting feelers out looking for another job?

u watching the game and tigul'ing fbis out. Ami Henri's 19 Jill;e, 11 0h, do you want a glfiS:S ofw1ne?" And like .. or , A. Yes. 20 he's Jlke, "Do you WRill some tiling to drlok? 11 Q. In what. in what ln!lllrJer? " I was like, "Sure, I'll hn\'C a Chardonnay."

" A. \Yell, I mean, I woul<llook online, and I was "

2

So hl' goes and gets me .p Ctumlonnay, and I tnke n 23 talking to a friend at Mattress Firm, and also I was ~ sip of H, nnd it just tastes disgusting, like so strong, 24 24 intnvien-iug with ADP, It's auotbcr like sales company, like alcohol, Ol' medidne, or just very, very like 25 25 Ru1 that was like later. bitter, like alkaline bitter. And--

U.S. LEGAL SUPPORT

RIO GRANDE VALLEY -(800) 881-0670 CORPUS CHRISTI - (361) 883-1716

ANDREA FARMER 7/11/2013 30 (Pages 117 to 120)

117 119 1 1 Q. Alkaline bitter? l Q. All right. So you're, )'0\1 re, so you're--

2 A. Yeah, like soap or~· what I originally 2 because of your knowledge and experience, you're able to 3 thought, like I was like, 11 h (-here like"-~ I was like, 3 nile out corked. Right?

4 4 "Henri, did you put yodka In tltb? 11 A, Uh-huh.

5

And he was like, "No, no.'' Q. And you're able to rule out oxidized?

6

And I was like, 1'1s this like the end of a wine A. Right.

1 bottle?'' I was like maybe somebody else·~ I don't know. Q. Okay. Just wanted to make sure. Go on. I'm I was Jil[e, ''This just doesn 1t taste right." ~ 6 ' sorry.

s He was liln.·, l!No 1 I poured It out·· J got a brand 9 A, That's why, nnd th~:~t'.,s~ I also ehecketl, IJke 10 new boUle." 10 mn)·be the bottle had be~~he for a wltJle, or ·-I n And I was Ilk<>, 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<e oxidized is almost like a soul'

23

And so then we were golug back up, becau.se !guess taste. Henri tohl the lady to Ill[e put n plece of dessert ont

" 25 Q. Right. A. But this Is not that taste.

2t for him in the concierge lounge so he tould go get It

25

when he nnlsbed.

U.S. LEGAL SUPPORT

RIO GRANDE VALLEY -(800) 881-0670 CORPUS CHRISTI - (361) 883-1716

ANDREA FARMER 7/11/2013

31 (Pages 121 to 124)

121 123 He wns like, nob, weU, come up and ha-ve one more 1 trav-eling over a weekend day, llS I did on Sunday, Cha1 I

2

z drlnl(, Have one more drink." could flex that tlme, And 11m like, 111 cnn't, Hen d. I'm just so tired." So you know, a lrave1 day ls a travel day. You

4

And so I went upstair's and went to sleep. And then don't necessarily hnve to go bnck Into work. You can if

5

s we woiH~ up really, real])• early the uext day for ou•· you want to. Tltat day we weren't due ba;:k into the ' flight. 6 offi;:e, because we were supposed to ~:ome in late front our

1

Q. And flew back to Houston? flight. A. And flew h::tclr to Houston togetbcl', a So I was like, you knowt I'm ~g,to go take a nap, Q. Do you remember what airline? nnd tllcn Jill go baclt up, may~~~-:-. On my accord, 10 A, Continental. 10 Ul{e deciding if I was goi~~~P there, it was n Q. Did you sit first class? 11 because I needed to do a~plilngs, not tbat I had to go "13 A. No. 12 back up. ~~

Q. Did he? 13 So I tool\ a nap~~)i)ad a missed ('RIJI\·om Hend, H A. No. 14 and he was ask,%.rthe notes. And so I called back a " Q. You sat together? 15 little bit late](, ·ro ~-

" 17 A. Uh-hub, "

11

Q. ~~

• I •

Q. Was there drinking on the plane? a ad been takmg at Da,•ldson. Sorry. I 1B A. No. •t mention that. I took a bunch ofno1es at 10 Q. Okay. When was ··this was in May. Right? A. Uh·hub. 20 ,r " 21 ~ OIWh<Jt)JUrpose?

Q. Arouud May what, would you think, would you A note taker. And he wanted the notes. Or . I'm

" believe? ~otoftimes be's likE\ "WrUe this down." And so I " " "

A. The last wcel'- ofi\lay. Q. 11\e last week of May'/ A. No.

' . 0~ ,..,Tite it down, because I'm alrf'ntly taking notes.

And so I guess he bad called me or texted me and said tbat be wanted the notes. And then --I don't know

0 2 124 1 Q. Memorial Dny? (W» 1 ifl e-ntlliled bin~ bnrk that I wasn't planning on coming A. No, no, no, That was the Chlca~, ~~'fills 2 In, that I would bring him the notes tomorrow. And then was probably tbe second, first or seco ~{of May. I 3 he --I can't r~member exaclly \l'hnt happened, but somehow started the very beginning of them~ th them. So 4 I knew that he Wll!i" mad that I WIISil'l bringing him I he

5

5 Ma:\-' 7Ch'r I don't·lmow, ~ notes that day.

Q. Was there ever a tune afi!r-

;a%\\'lthin close Q. Okay.

proximity to it, but aflct that, lh 1leamed that A. Maybe It was based on the mtssage tltat lte left Henri didn't want to speukMftJ\\ 11 for one reason or me. , another? ~) Q. And what was that message?

A. Will you expa1 that'? A. Very btltl<!d, like, 11 1-- this ts urgent." L!l\1~ u Q. I \Viii in a bi <> - 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)

FOX REPORTING (713) 622.1580

Electronically signed by Amy Doubenmlor (201·083-983-5249) 75b08e32·ddf1-4f70-ab20·067220224a62

Beth Jackson

July 24, 2013 Job No. 14756 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? .<i:~ 3 Q. Okay. And I don't mean to .. like, I hate 4 A. No~ sir. _ ~ 4 asking uncomfortable questions. But when you say you 5 9· And bear with me. I'll tell you th~no 5 drink vodka and cranberry, how often do you drink? 6 to JUmp around. .,.__~ 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)

FOX REPORTING (713) 622.1580

Electronically signed by Amy Doubenmler (201-0B3·9B3·5249) 75b08e32-ddf1-4170·ab20-067220224a62

Beth Jackson July 24, 2013 Job No. 14756 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)

FOX REPORTING (713) 622.1580

Electronically signed by Amy Doubenmler (201-083·983-5249) 75b0Be32-ddf1-4170-ab20·0S7220224a62

Beth Jackson July 24, 2013 Job No. 14756

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. An<l who were your local clients? 2 Q. Did y'all have drinks? , ~ 2 A. Diama.x Industries. Ever Clear Window Cleaning~ 3 A. I believe so. ,,<fc~ 3 Wayne's Auto. I had a marble guy, Gus. I'm forgetting 4 Q. Okay. Do you recall how many da~.vere 4 the name of his marble company. And I picked up 5 in Atlanta? O· 5 clients from a CPA called Ledger Plus. 6 A. They would have been there for ~'eo days. 6 Q. Okay. At what point did Edible essentially 7 Q. Okay. ~ 7 become your sole c1ient? 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)

FOX REPORTING {713) 622.1580

Electronically signed by Amy Doubenmter (201-083-983-5249) 75b08e32 ·ddll-4 170-a b20·0672202 24a6 2

Beth Jackson July 24, 2013 Job No. 14756 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)

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 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. ,_<!;~ 13 11:06 a.m.) 14 Q. Do you know m~ri's wlfe was aware of this 14 THE VIDEOGRAPHER: The time is II :06 15 relationship? Q 15 a.m., and we~re back on the record. 16 A. Was or~·~ 16 Q. (BY MR. TODD) Okay. Are you ready to 17 Q. Was. . 17 continue? 18 A. Not to my owlcdgc. No. 18 A. Yes1 sir. 19 Q. Is she now? 19 Q. Okay. And 1 apologize for delving into all of 20 A. Yes. 20 these details. But because of the allegations in this 21 Q. When did your husband become aware of the 21 case, I'm obligated to kind of try and talk to you 22 relationship? 22 about it and kind of figure out what all, you know, 23 A. Last year. 23 occurred between you and Henl'i. Okay? 24 Q. Okay. Do you know when Rnth became aware of 24 A. Uh~huh. That's a "Yes." Jim sorry. 25 the relationship? 25 Q. And because of how folka, namely President

13 (Pages 49 to 52)

FOX REPORTING (713) 622.1580

Electronlcatty signed by Amy Doubenmler (201·083·983-5249) 75b0 Be32-ddf1·417 O·a b20· 067220224a62

Beth Jackson July 24, 2013 Job No. 14756 Page 53 Page 55 1 Clinton, minced words and things Like that, I may have 1 A. Because I didn't want to be able to tell who 2 to use some terminology that isn't the most polite. 2 the person was. 3 But when we talk about sexua1 intercourse, did Henri 3 Q. What did he take the pictures with? 4 ever penetrate you? 4 A. His cell phone. 5 A. Yes. 5 Q. Do you -- did he just retain them on his cell 6 Q. Okay. And did he ever penetrate you with his 6 phone or download them to a flash drive or a hard 7 fingers? 7 drive? 8 A. Yes. 8 A. He has downloaded t~ljl;n., Yes. 9 Q. Did he ever penetrate you with his fingers 9 Q. And what was the p\!&'iiSO oftaking these 10 when you were unconscious? 10 pictures? ~~ 11 A. No. 11 A. The purpose oflfakfug those pictures was at my 12 Q. Did he ever penetrate you otherwise when you 12 suggestion, becausW'fW~s having arousal issues at 13 were unconscious? 13 home with his 'Wf~~ I suggested that these may 14 A. No. 14 help. ~ 15 Q. Did he ever have any sexual relationship with 15 Q. Okay.~- and I'm not going to, you know, 16 you when you were unconscious? 16 argue wi~r quibble. !just want to understand. 17 A. No. 17 So, Hen~shaving arousal problems? 18 Q. Did Henri ever take pictures of you when you 18 A. ~s. 19 were unconscious? 19 ~~ould you consider that-- was Henri impotent, 20 A No. 20 "-'"'~s you knew? 21 Q. Has Henri ever taken pictmes of you 21 iJfE No. 22 undressed, as far as you know? 22 Q Q. Did he utilize any medications to help him 23 A Yes. 23 . ~vith his arousal problems?

fi~(pJ

24 Q. When did ·- has Henri taken pictures ofyou7 A. He did not have au arousal prob1em with me. 25 A. There were several times. The exact dates I Q. Okay, But he was having an arousal problem

Page ~P'; Page 56 1 don't recall, but over a period of time. ©i 1 with his spouse? 2 Q. On various business trips? ~ 2 A. My understanding. 3 A. Yes. _e,:fijJ 3 Q. And did he ever have to take any medication to 4 Q. And hotel rooms? ~ 4 assist him with his amusal problems with his wife? 5 A. Yes. i()i 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)

FOX REPORTING (713) 622.1580

Electronicatly signed by Amy Doubenmlar (201·083-983-5249) 75b0Se32-ddf1-4f70·ab20·067220224a62

Beth Jackson July 24, 2013 Job No. 14756

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