Jackie Anderson, Patrick Cockerham, Diann Banks, Herbert Lenton, and Mable Caleb v. Terry Grier, Superintendent of the Houston Independent School District

Opinion

CAUSE NO. 2010-21712

JACKIE ANDERSON, PATRICK § IN THE DISTRICTFILED COURTIN OF 1st COURT OF APPEALS COCKERHAM, DIANN BANKS, § HOUSTON, TEXAS HERBERT LENTON, and MABLE § 5/11/2015 8:16:19 PM CALEB, § CHRISTOPHER A. PRINE Plaintiffs, § Clerk § HARRIS COUNTY, TEXAS v. § § TERRY GRIER, SUPERINTENDENT § OF THE HOUSTON INDEPENDENT § SCHOOL DISTRICT, § 164TH JUDICIAL DISTRICT Defendants. §

PLAINTIFF-APPELLANTS’ REQUEST FOR COURT REPORTER’S RECORD

To: Ms. Donna King, CSR; Official Court Reporter, 164th Judicial District Court of Harris County, Texas; 201 Caroline, 12th floor; Houston, Texas 77002; Tel. No. (713) 368-6256 .

Under Texas Rule of Appellate Procedure 34.6, Plaintiff-Appellants Jackie

Anderson, Patrick Cockerham, Diann Banks, Herbert Lenton, and Mable Caleb

hereby request the official court reporter to supplement the record on appeal with

the Reporter’s Records previously prepared in this matter. The portions of the

proceedings for which transcripts were previously requested and prepared to be

included are as follows:

1. May 11, 2012, Oral hearing on Defendants Elizabeth Mata Kroger and

Martin, Disiere, Jefferson & Wisdom, L.L.P.’s motion to dismiss

Plaintiffs’ second amended petition for failure to replead in compliance with special exceptions (Reporter’s Record attached as Exhibit A); and

2. September 30, 2011, Oral hearing on Defendants’ Motion to Strike

Pleading (Reporter’s Record attached as Exhibit B).

Plaintiff-Appellants have previously made payment for the costs/fees for

preparation of the court reporter’s record. Under Texas Rule of Appellate Procedure

37.3, Plaintiff-Appellants accept responsibility for payment of any additional

costs/fees for preparation and filing of the court reporter’s record for appeal.

Date: May 11, 2015.

Respectfully Submitted,

WATTS & COMPANY LAWYERS, LTD.

/s/ Larry Watts Laurence (“Larry”) Watts State Bar No. 20981000 Melissa Azadeh State Bar No. 24064851 P.O. Box 2214 Missouri City, Texas 77459 Tel: (281) 431-1500 Fax: (877) 797-4055 Email: wattstrial@gmail.com

ATTORNEYS FOR PLAINTIFF-APPELLANTS JACKIE ANDERSON, PATRICK COCKERHAM, DIANN BANKS, HERBERT LENTON, AND MABLE CALEB

2 CERTIFICATE OF SERVICE

I hereby certify that on this 11th day of May 2015, a true, complete, and correct

copy of the foregoing and attached documents were served on all opposing

counsel(s) of record via e-filing, e-service, if available, and/or facsimile

transmission, in accordance with the rules, to:

Arturo Michel amichel@thompsonhorton.com John Hopkins jhopkins@thompsonhorton.com Thompson & Horton, LLP 3200 Southwest Freeway, Suite 2000 Houston, Texas 77027-7554

The Honorable Christopher A. Prine Clerk of Court First Court of Appeals 301 Fannin Street Houston, Texas 77002-2066

/s/ Larry Watts Laurence (“Larry”) Watts

3 1

1 CAUSE NUMBER 2010-21712

2 JACKIE ANDERSON, PATRICK : IN THE DISTRICT COURT COCKERHAM, DIANN BANKS, : 3 and HERBERT LENTON, et al. : : 4 v. : HARRIS COUNTY, TEXAS : 5 TERRY GRIER, Superintendent : of the HOUSTON INDEPENDENT : 6 SCHOOL DISTRICT; ELIZABETH : MATA KROGER; MARTIN, : 7 DISIERE, JEFFERSON & WISDOM,: L.L.P.; DAVID P. FRIZELL; : 8 FRIZELL GROUP, : INTERNATIONAL, L.L.C.; and : 9 ESTEBAN MAJLAT : 164th JUDICIAL DISTRICT

12 *************************************************

13 MAY 11, 2012

14 *************************************************

17 On the 11th day of May, 2012, the following

18 proceedings came on to be heard in the above-entitled

19 and -numbered cause before the Honorable Alexandra

20 Smoots-Hogan, Judge Presiding, held in Houston,

21 Harris County, Texas.

22 Proceedings reported by Certified Shorthand

23 Reporter and Machine Shorthand/Computer-Aided

24 Transcription.

DONNA KING, CSR 164TH OFFICIAL REPORTER

EXHIBIT A (713) 368-6256 2

2 A P P E A R A N C E S

4 FOR THE PLAINTIFFS: Mr. Laurence Watts, SBN 20981000 5 WATTS & ASSOCIATES P.O. Box 2214 6 Missouri City, Texas 77459 Telephone: 281-408-4107 7 Facsimile: 877-797-4055

8 FOR THE DEFENDANTS, ELIZABETH MATA KROGER and 9 MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P.: Mr. Richard A. Morris, SBN 14497750 10 Mr. Adam D. Courtin, SBN 24053153 ROGERS, MORRIS & GROVER, L.L.P. 11 5718 Westheimer Road, Suite 1200 Houston, Texas 77057 12 Telephone: 713-960-6000 Facsimile: 713-960-6025 13

14 FOR THE DEFENDANT, TERRY M. GRIER, SUPERINTENDENT OF THE HOUSTON INDEPENDENT SCHOOL DISTRICT: 15 Mr. John M. Hopkins, SBN 24041127 THOMPSON & HORTON, L.L.P. 16 3200 Southwest Freeway, Suite 2000 Houston, Texas 77027 17 Telephone: 713-554-6767 Facsimile: 713-583-8884 18

19 FOR THE DEFENDANTS, DAVID P. FRIZELL, FRIZELL GROUP INTERNATIONAL, L.L.C., and ESTEBAN MAJLAT: 20 Mr. Donald W. Crump, SBN 24069556 HARTLINE DACUS BARGER DREYER, LLP 21 3600 One Houston Center 1221 McKinney Street 22 Houston, Texas 77010 Telephone: 713-759-1990 23 Facsimile: 713-652-2419

DONNA KING, CSR 164TH OFFICIAL REPORTER (713) 368-6256 3

1 P R O C E E D I N G S

2 THE COURT: We are on the record in

3 Cause Number 2010-21712, Jackie Anderson versus Terry

4 Grier, and appearance for the record, Counsel.

5 MR. WATTS: Larry Watts, Your Honor,

6 for the plaintiffs.

7 MR. MORRIS: Your Honor, Rick Morris

8 for Defendant, the Martin, Disiere, Jefferson law

9 firm and Ms. Elizabeth Mata Kroger.

10 MR. HOPKINS: John Hopkins for Terry

11 Grier.

12 MR. CRUMP: Your Honor, Donald Crump

13 for David Frizell, Frizell Group, and Esteban Majlat.

14 MR. COURTIN: Adam Courtin for the law

15 firm Martin, Disiere, Jefferson & Wisdom and

16 Elizabeth Mata Kroger.

17 THE COURT: All righty. Y'all have

18 been here on this before.

19 MR. MORRIS: We have, Your Honor.

20 THE COURT: So did we do the

21 interrogatories that we talked about last time?

22 MR. WATTS: I'm sorry, Your Honor?

23 THE COURT: Last time we talked about

24 doing five interrogatories --

25 MR. WATTS: Yes.

DONNA KING, CSR 164TH OFFICIAL REPORTER (713) 368-6256 4

1 THE COURT: Remember? -- real targeted

2 so that we could get a sense of exactly where we're

3 coming from.

4 MR. WATTS: They were pretty precise.

5 The objections that came back were essentially that

6 they were overbroad, that they invaded

7 attorney/client privilege and they had invaded the --

8 the privilege of attorney work product.

9 The objection that they were overbroad

10 I think is not well taken. I think if you read them,

11 they're -- they're -- they're pretty precise, and

12 especially if you look at the billing information I

13 submitted to you that Ms. Mata Kroger and her firm

14 had submitted to the --

15 THE COURT: Do you have the interrog --

16 does somebody have them handy?

17 MR. MORRIS: Your Honor, I do believe

18 we have them.

19 MR. WATTS: Here, Your Honor, is a copy

20 of the -- this is the first sup -- supplement that I

21 filed, the second supplement, the third supplement.

22 THE COURT: Can you hand those to me,

23 Mr. Morris?

24 MR. MORRIS: (Tendering document.)

25 THE COURT: Thank you.

DONNA KING, CSR 164TH OFFICIAL REPORTER (713) 368-6256 5

1 MR. WATTS: And -- here. This is an

2 affidavit that I've previously filed.

3 THE COURT: Have you set these motions

4 to compel for a hearing?

5 MR. WATTS: I set the motion to compel

6 for a hearing back early on --

7 THE COURT: Uh-huh.

8 MR. WATTS: -- and it was pointed out

9 to me that I'd -- I had lapsed and not conferred for

10 the setting of the -- the date, so -- that was the

11 only -- main objection. In fact, counsel said when

12 we get through with getting the dates straightened

13 out, then we'll talk about why -- why our answers are

14 deficient. So now we're about a month and a half,

15 two months down the line, at a date that they -- that

16 they -- we've all agreed upon, so we're here.

17 The -- the objections, Your -- not --

18 Your Honor, that they've made are not well taken. In

19 fact, I think that the objections --

20 THE COURT: Oh, here we go. I'm sorry.

21 I was looking through your motion to compel, but I'm

22 not seeing the actual --

23 MR. WATTS: Oh, here's the motion to

24 compel on it, Your Honor. I'm sorry.

25 THE COURT: No. No, no, no. I got

DONNA KING, CSR 164TH OFFICIAL REPORTER (713) 368-6256 6

1 that. I -- I was looking for the actual

2 interrogatories.

3 MR. WATTS: I've -- I'm going to ask,

4 Your Honor, that -- you -- you'll notice that -- that

5 I did not attach the interrogatories to the motion to

6 compel. Counsel was kind enough to point that out,

7 and he was kind enough to put the five

8 interrogatories in. I've sort of had my plate full

9 with some physical issues, which are going to --

10 thank God. -- be resolved on the 22nd of May, when

11 I'm told that I'll be, thereafter, good as new.

12 THE COURT: Okay. Well, good.

13 MR. WATTS: Thank you, Your Honor. So

14 the -- and this is the first time I've ever argued

15 from a wheelchair, so -- the -- the point is that

16 they say "We had attorney/client privilege." Well,

17 that's not what -- they -- they tell you that.

18 THE COURT: Uh-huh.

19 MR. WATTS: But -- but they -- they

20 don't tell the public that, and they don't tell the

21 Commissioner of Education that, and they don't tell

22 each other that, and -- and -- and they, in fact,

23 are -- are -- I've -- I've shown you -- I've attached

24 the exhibits that point out that they say that they

25 were investigators. In fact, they don't even charge

DONNA KING, CSR 164TH OFFICIAL REPORTER (713) 368-6256 7

1 as attorneys. They're charging $220 an hour to make

2 the $250,000 investigation. There -- they charged

3 $220 an hour as investigators. They didn't even put

4 on there for attorneys' fees.

5 They say that -- well -- and besides

6 that, they didn't -- they didn't think about 193.3.

7 They never have raised that issue.

8 Then on the attorneys' work product --

9 they can't do that because there was no litigation

10 anticipated. There were -- this wasn't done in

11 anticipation of litigation, so those are bad-faith

12 objections. All I want to do -- they say, "Well,

13 she's interviewed -- she interviewed in the process."

14 Okay. Got to back up just a minute.

15 THE COURT: Well, hold on. Let's

16 back -- let's back up even more than that, because

17 the motion to compel isn't set for today, right?

18 MR. WATTS: No. It was set for today.

19 THE COURT: The only thing I have is a

20 motion to dismiss. That's all --

21 MR. WATTS: No. Well, Your Honor, I

22 sent a setting in for a motion -- we -- we put it on

23 the calendar.

24 THE COURT: On my calendar?

25 MR. WATTS: Yes, ma'am. And we sent a

DONNA KING, CSR 164TH OFFICIAL REPORTER (713) 368-6256 8

1 setting in --

2 THE COURT: Is there a setting?

3 THE CLERK: No. The only thing I have

4 is a motion to -- there was a setting from last week.

5 THE COURT: For last -- that's right.

6 Oh --

7 MR. WATTS: And we pass -- we passed --

8 we passed it. We -- we -- we moved it a week

9 because --

10 THE COURT: You talked to somebody and

11 told them you were moving --

12 MR. WATTS: Yes.

13 THE COURT: -- it a week?

14 MR. WATTS: Yes. Yes, Your Honor. We

15 called --

16 THE COURT: Did you tell the other

17 side?

18 MR. WATTS: Yes. We agreed. The other

19 side and I agreed. Everything was to be set this

20 week.

21 MR. MORRIS: We did agree to move it to

22 this date, Your Honor; but consistently we have had

23 problems being served with notices of resetting.

24 THE COURT: Uh-huh.

25 MR. MORRIS: So I don't know that any

DONNA KING, CSR 164TH OFFICIAL REPORTER (713) 368-6256 9

1 notice of resetting was actually sent to ensure that

2 it was on your calendar. I know that we filed a

3 notice to set --

4 MR. WATTS: And we filed a motion --

5 MR. MORRIS: -- a motion --

6 MR. WATTS: -- to set --

7 MR. MORRIS: -- to re-urge dismissal to

8 today, realizing that we were agreeable to having a

9 hearing on this date, but we -- I don't believe we

10 ever received service of the motion to compel being

11 set on this date.

12 THE COURT: Okay.

13 MR. WATTS: Well, it was faxed over.

14 It's --

15 THE COURT: Hmm.

16 MR. MORRIS: Your Honor, we only

17 learned of the original motion to compel -- and the

18 reason it was set on the 13th is because we had not

19 been served with notice of the hearing on the 13th,

20 and only through affirmatively looking on PACER or

21 electronically, we learned about that hearing and

22 contacted Mr. Walls -- Mr. Watts --

23 MR. WATTS: Watts.

24 MR. MORRIS: -- informing that I was

25 not available on that date and had not received

DONNA KING, CSR 164TH OFFICIAL REPORTER (713) 368-6256 10

1 proper notice. That's what necessitated trying to

2 reschedule the motion to rehear -- or to hear the

3 motion to compel in the first instance --

4 THE COURT: Okay.

5 MR. WATTS: Well --

6 MR. MORRIS: -- because we're not

7 getting properly served --

8 MR. WATTS: Well --

9 MR. MORRIS: -- with filings in this

10 case.

11 MR. WATTS: First of all, let's go back

12 a little bit. There have been some instances

13 recently when you may not have been properly served,

14 Mr. Morris. I don't think you've had that experience

15 with me. I know Mr. -- Mr. Hopkins has, and he and

16 I, I think, have straightened that out. A lot of

17 that has been caused by -- by my focus on other

18 things, perhaps, or lapse.

19 But I do know, Your Honor, that -- that

20 when I originally filed the motion to compel -- the

21 motion to compel was filed a matter of days before I

22 was -- before I was in the hospital on a problem, and

23 I was -- I may have missed it. They called me,

24 and -- Mr. -- Mr. Courtin calls and says that, you

25 know, "You didn't serve us. We didn't confer." We

DONNA KING, CSR 164TH OFFICIAL REPORTER (713) 368-6256 11

1 communicate. I said, "Okay. We'll -- we'll take

2 care of that."

3 We had another conversation. I've

4 recited that. They gave me some dates that they

5 wanted to have the motion to compel heard on. Fine.

6 I did it. Then last week -- I was notified on

7 May 2nd that my -- my hip was gone and that I'm going

8 to have to have emergency surgery. I can't walk.

9 So then I asked -- I called him

10 back. -- "Can we do this -- instead of this Friday,

11 can we do it next Friday?" "Yes."

12 Mr. Gonzalez here is my assistant.

13 Mr. Gonzalez called down here. We got the -- the

14 setting. I was listening. We then did the notice of

15 setting and did a FREEfax filing on that.

16 Unfortunately, I don't have that here with me, but --

17 THE COURT: Okay.

18 MR. WATTS: I'm -- I'm --

19 THE COURT: All right. Well -- so I

20 haven't looked at any of the motion to compel stuff

21 because I didn't think it was set for today. So --

22 hmm. Doesn't make a whole lot of sense to me to be

23 ruling on the motion to dismiss prior to ruling on

24 the motion to compel, provided there -- I mean, I

25 don't know if there is some issue. Have you all had

DONNA KING, CSR 164TH OFFICIAL REPORTER (713) 368-6256 12

1 a conversation about --

2 MR. WATTS: We have.

3 THE COURT: -- motion to compel?

4 MR. WATTS: We had -- Mr. -- Mr. Morris

5 and I had a -- the whole -- yes, and they don't

6 intend to -- to give me an answer.

7 They keep saying, "Well, you don't have

8 a lawsuit. You -- you -- your -- your questions

9 aren't what Judge Smoots-Hogan wanted you to ask.

10 She wanted you to ask one question, and that is, 'Did

11 you enter into an agreement to violate the

12 Constitution of the United States or the State of

13 Texas?'" or something, and -- and --

14 THE COURT: I asked you to do that?

15 MR. WATTS: That's what Mr. Morris

16 has -- has indicated to me, and that's what Mr. -- if

17 you look, by the way, in their -- in their documents,

18 you'll see that they have said as much. That's what

19 he told me on May 3rd.

20 THE COURT: Yeah. Wait. Stop. I'm

21 asking you because those are not words that generally

22 come out of my mouth.

23 MR. WATTS: No. I agree.

24 THE COURT: I mean --

25 MR. WATTS: I totally agree, and I --

DONNA KING, CSR 164TH OFFICIAL REPORTER (713) 368-6256 13

1 I --

2 THE COURT: I -- I -- stop. I sort of

3 have an MO about those sort of things, and I'm not

4 one to be, like, "Yeah. I'm going to need you to

5 talk about the Constitution of the United States." I

6 mean, that kind of stuff doesn't come out of my

7 mouth, so I'm trying to figure out exactly what it is

8 that we were supposed to be asking and supposed to be

9 answering. So hold on a second. Let's see what

10 Mr. Morris has to say.

11 MR. MORRIS: Your Honor, we actually

12 have a transcript that's filed with our pleadings --

13 THE COURT: Uh-huh.

14 MR. MORRIS: -- of the hearing in which

15 you directed Mr. Watts that he would have an

16 opportunity to ask five interrogatories that were

17 supposed to specifically address the special

18 exceptions that have been the subject of two prior

19 hearings. So by way of history, because this really

20 is not as complicated as it seems, we filed special

21 exceptions to the original petition in this matter.

22 The Court granted all nine special

23 exception -- exceptions -- sustained them -- excuse

24 me. -- and then asked Mr. Watts to re-plead to cure

25 the special exceptions.

DONNA KING, CSR 164TH OFFICIAL REPORTER (713) 368-6256 14

1 THE COURT: Okay.

2 MR. MORRIS: He filed an amended

3 petition. It did not in any way address the special

4 exceptions. We set a hearing for a motion to

5 dismiss --

6 THE COURT: Uh-huh.

7 MR. MORRIS: -- for failure to comply

8 with the special exceptions and a motion to strike.

9 We had that hearing. It -- it was clear during the

10 course of the hearing, which is all reflected in a

11 transcript that you have before you in the pleadings,

12 that the central issue was whether or not our client,

13 Ms. Mata Kroger, who had been hired to conduct an

14 investigation, conspired with Mr. Grier to retaliate

15 against Mable Caleb and other of the plaintiffs --

16 THE COURT: I remember this. Yeah.

17 MR. MORRIS: -- for this pointed

18 exercise of free-speech rights.

19 MR. WATTS: Or --

20 MR. MORRIS: Now, Mr. Watts -- in the

21 course of that, this Court -- and it's in the

22 transcript. -- very specifically questioned Mr. Watts

23 to direct you where in his amended petition he had

24 set forth the special facts that would support the

25 existence of a conspiracy because the basis of the

DONNA KING, CSR 164TH OFFICIAL REPORTER (713) 368-6256 15

1 sustained special exception was it's not good enough

2 to simply say there was a conspiracy. You have to

3 give facts regarding an agreement between parties to

4 commit an unlawful act or to commit a lawful act by

5 unlawful means.

7 MR. MORRIS: Mr. Watts couldn't do

8 that -- again, that's reflected in the transcript. --

9 but then told this Court that he had cross-examined

10 Ms. Kroger in the course of a non-renewal hearing of

11 his client, Anderson, and that he learned in the

12 course of that cross-examination that there was

13 evidence to support that allegation of conspiracy.

14 Well, Your Honor, that's the first time

15 I heard that -- heard that, and post the hearing we

16 endeavored to go find that transcript, and it's just

17 not true. It's just facially not true, what you were

18 told was the basis of the conspiracy -- groundless

19 conspiracy allegation that's kept this litigation

20 alive against Ms. Kroger, who was simply hired to do

21 an independent investigation of some alleged

22 wrongdoing at HISD.

23 Nevertheless, the Court, in the course

24 of the hearing, having heard that there might be a

25 basis for the conspiracy allegation, told Mr. Watts

DONNA KING, CSR 164TH OFFICIAL REPORTER (713) 368-6256 16

1 he was going to get five interrogatories, no more

2 than five, and gave him very specific instruction

3 that they were to be directed at the special

4 exceptions problems that were the basis of the motion

5 to dismiss and warned him that "You're only going to

6 get one shot at this. They should not be

7 objectionable. They should be tailored to address

8 these issues." Okay? And again, I'm -- that --

9 that's a paraphrasing of what I believe is accurately

10 set forth in the transcript. If I'm wrong about it,

11 the Court can certainly see for itself what the tenor

12 of the discussion was.

13 So, Your Honor, we get the five

14 interrogatories. One of the interrogatories calls

15 for a "Yes" or "No" answer. We answer "Yes." It's

16 clearly responsive. That's Number 2, Your Honor.

17 The -- the writ -- 4 and 5 have direct responses.

18 What we're really fighting about is

19 interrogatories Number 1 and Number 3 that are the

20 classic Martin versus Loftin fishing expeditions that

21 ask --

22 MR. WATTS: Wrong.

23 MR. MORRIS: -- that ask --

24 Excuse me, Mr. Watts.

25 MR. WATTS: You're excused.

DONNA KING, CSR 164TH OFFICIAL REPORTER (713) 368-6256 17

1 MR. MORRIS: -- ask to "Please identify

2 every date, every occurrence, every event regarding

3 Ms. Kroger's contacts with any district

4 representatives." Your Honor, the problem with that

5 is -- is there are 50, plus, people that she spoke

6 with in the course of an investigation.

7 Mr. Watts is in possession, like the

8 public is, of an investigative report that's about

9 the size of a phone book.

10 THE COURT: Uh-huh.

11 MR. MORRIS: That's not the proper --

12 that's not the type of interrogatory that the Court

13 suggested would address the special exceptions, nor

14 is it the type of permissible interrogatory that the

15 Supreme Court tells us is -- is allowed under the

16 rules because it would've required us to go on in

17 single space for 15 pages to detail all those events.

18 But he very specifically represented to

19 you that there was an agreement reached between

20 Ms. Kroger and Ms. Grier [sic].

21 So Mr. Watts files a motion to compel.

22 It doesn't speak to the specifics of any

23 interrogatory. It just says the responses are in bad

24 faith and they're incomplete. He doesn't attach the

25 motion -- the interrogatories or the answers to his

DONNA KING, CSR 164TH OFFICIAL REPORTER (713) 368-6256 18

1 original motion. He does not confer regarding the

2 substance of the motion at the time he files his

3 motion to compel. It was not just a failing in

4 conferring regarding the date for setting the

5 hearing. He has to have a certificate of conference

6 regarding the merits of the discovery dispute before

7 he files that. He did not do that. I did see

8 Mr. Watts long after he filed his motion to compel in

9 a hearing at HISD where I initiated the discussion

10 with him about the substance of the problems.

11 THE COURT: Okay.

12 MR. MORRIS: If he had asked, very

13 appropriately and simply, "Identify all discussions

14 that Kroger had with Terry Grier," which was what --

15 he told you was where the conspiracy was formed --

16 THE COURT: Uh-huh.

17 MR. MORRIS: -- "the dates, the times,

18 the substance of those discussions," we would've

19 responded to those interrogatories. They would've

20 been sworn to. But what Mr. Watts told me -- and not

21 only told me, but he set it forth in his own

22 pleadings -- he said he would not expect it to yield

23 a profitable answer, so that's why he didn't ask it.

24 MR. WATTS: Not what I said.

25 MR. MORRIS: It's verbatim. I'm

DONNA KING, CSR 164TH OFFICIAL REPORTER (713) 368-6256 19

1 reading --

2 MR. WATTS: No, no. You're reading the

3 profitable answer, but you're not reading the entire

4 statement, like -- like you've been skewing what --

5 what has happened in your statement, Counsel.

6 MR. MORRIS: So what he's essentially

7 arguing to the Court is he didn't ask the relevant

8 questions because he believed that Ms. Kroger would

9 say, "No. We didn't have any agreement to go after

10 Mable Caleb." Well, Your Honor, he has to take the

11 evidence as he gets it. If, in fact, that's the

12 answer, a sworn-to answer by a member of the bar,

13 then, as this Court pointed out in -- at the time

14 that you had argument with him about the

15 interrogatories -- if that's the answer, he doesn't

16 have evidence to support the conspiracy claims, and

17 the conspiracy claims should, appropriately, go away.

18 What I find most telling about this

19 whole case is that the lawsuit was initially filed

20 against HISD. Okay? My clients didn't get added to

21 the case until far further down the road, despite the

22 purported evidence that Mr. Watts had of a conspiracy

23 existing between HISD and my clients.

24 Your Honor, he could've taken Terry

25 Grier's deposition. "Mr. Grier, please tell me.

DONNA KING, CSR 164TH OFFICIAL REPORTER (713) 368-6256 20

1 What discussions did you have with Ms. Kroger?" He

2 could've tried to garner some evidence against proper

3 defendants in the case before filing a baseless and

4 groundless allegation against my client, who was

5 simply hired to conduct an investigation.

6 This is not the first time that

7 Mr. Watts has sued an HISD investigator, only to end

8 up being -- to dismiss the investigator down the

9 road. Sued Rusty Hardin. My firm represented

10 Mr. Hardin, only to end up dismissing Mr. Hardin from

11 the case. He sued Mr. Richard Hightower in

12 connection with an investigation that he did for

13 Houston Community College, only to end up dismissing

14 Mr. Hightower in the case.

15 This is a tool of harassment. Another

16 piece of evidence that it's a tool of harassment that

17 has gone on far too long is that when we submitted

18 the motion to re-urge the dismissal on -- to dismiss

19 the case for failure to plead in compliance with the

20 special exceptions, Mr. Watts contacted my office and

21 said, "I've had some health problems. I need an

22 extension." We granted him the extension of time to

23 file a response, but the very day that the motion was

24 supposed to be submitted, which was the Monday after

25 the Friday he called seeking the extension, what we

DONNA KING, CSR 164TH OFFICIAL REPORTER (713) 368-6256 21

1 found out is that he had been spending considerable

2 time preparing a new lawsuit regarding the same

3 transactions and occurrences as the basis of the

4 lawsuit in the current court, except he filed it in

5 federal court and added Mable Caleb, one of the

6 actors -- central actors to this play, as a plaintiff

7 in that case. Your Honor, we initially came before

8 you in August of last year, I believe --

9 THE COURT: Uh-huh.

10 MR. MORRIS: -- filing the special

11 exceptions. We got rulings regarding the sustained

12 special exceptions, I believe, in May. This has been

13 an awful lot of unnecessary and unfair expense to my

14 clients, who did nothing more than get hired to do an

15 investigation and then got sued. And what those

16 interrogatories reveal to me, one and three --

17 THE COURT: Uh-huh.

18 MR. MORRIS: -- is that he's trying to

19 backfill with facts to support conspiracy

20 allegations, facts that he didn't have when he

21 originally filed the lawsuit against Ms. Kroger and

22 her law firm. And so I understand he's got a motion

23 to compel. The Court can certainly address that at

24 the appropriate point in time, but we're simply

25 urging at the earliest possibility that the baseless

DONNA KING, CSR 164TH OFFICIAL REPORTER (713) 368-6256 22

1 claims that are brought against our clients be

2 dismissed from this lawsuit.

3 MR. WATTS: Your Honor, may I respond?

4 THE COURT: Yes.

5 MR. WATTS: First of all, I want to

6 talk about just some -- some of the -- he's told you

7 that his client was hired to investigate. He said

8 that several times, four, I think, that I counted.

9 That's not what he told you in the objections.

10 In the objections he told you his

11 client was hired as an attorney, that the function

12 was an attorney/client relationship. That's not

13 true. He knows it's not true because now I provided

14 him with the documents that -- that I have that shows

15 that -- that that's -- that's -- that's false.

16 The second thing he says is that I make

17 it a pattern and practice, bad-faith harassment.

18 I've sued Rusty Hardin in the Cuadra case because

19 he -- this -- this is a -- Cuadra was a template

20 developed by Mr. -- Mr. Morris's firm and -- and,

21 frankly, Mr. -- Mr. Hopkins' firm.

22 THE COURT: Okay. Stop. I really

23 don't have time to go into the minutiae --

24 MR. WATTS: Okay.

25 THE COURT: -- of whatever other

DONNA KING, CSR 164TH OFFICIAL REPORTER (713) 368-6256 23

1 claims. I'm trying to figure out what we can do

2 productive today.

3 MR. WATTS: Well, what we can --

4 THE COURT: What I would like you to

5 respond to is why the first question is, frankly, the

6 most open-ended question there was, because I

7 remember. You told me that there was some hearing

8 where -- there was some communication that happened

9 where there was a conspiracy agreement made.

10 This question does not address the

11 hearing or what we talked about before.

12 MR. WATTS: I think it -- I think, Your

13 Honor, if you'll look at the question -- first of

14 all, let me -- let me start off by saying counsel --

15 counsel slides on -- on -- on what has happened.

16 When I took -- in the Anderson -- in

17 the An -- in the -- in the -- in the Jackie Anderson

18 termination hearing, I -- Ms. Merri Schneider-Vogel

19 presented Mata Kroger as a witness. In the process

20 of that, I asked her -- and now I had -- I had -- had

21 heard about the billing. The billing for Mata Kroger

22 and Martin Disiere had not been completed yet, or I

23 didn't have access to it. I was going to get access,

24 and that's why I waited to file -- to join them in

25 this lawsuit, to make sure that I had done a

DONNA KING, CSR 164TH OFFICIAL REPORTER (713) 368-6256 24

1 reasonable investigation.

2 But in that hearing, in that

3 examination I did of Ms. Kroger, I asked her, "When

4 did you first get involved in this," words to that

5 effect. She said that she was called by Merri

6 Schneider-Vogel to go meet with -- with Elneita

7 Hutchins Taylor, general counsel, at the school

8 district, and she went down and met with her.

9 Well, if you look at the billing, which

10 I now have and which I've attached and given to you,

11 that doesn't meet anywhere. That doesn't even --

12 that doesn't -- it's not reflected. She -- she bills

13 for everything. I mean, there's $140,000 worth of

14 billing in that package alone, and there's another

15 110,000 in another package, but she doesn't --

16 doesn't show in her billing that meeting.

17 The second thing that I knew: I knew

18 that when the -- Majlat, Kroger and Frizell started

19 interviewing my clients, it was said by Mr. Majlat

20 that they had been meeting regularly or had been

21 meeting with the superintendent. That's Grier. In

22 fact, he said "the new superintendent."

23 Now, that happened in January of 2010.

24 He said that they had been meeting with him and that

25 the new superintendent said that he wanted to clean

DONNA KING, CSR 164TH OFFICIAL REPORTER (713) 368-6256 25

1 the house, and she -- that's what they told Jackie

2 Anderson, and -- and -- and they even told Jackie

3 An -- the new superintendent wanted to clean the

4 house --

5 THE COURT: Get to the --

6 MR. WATTS: -- fire everybody at Key.

7 THE COURT: Get to the part where there

8 is a conspiracy --

9 MR. WATTS: That's the --

10 THE COURT: -- between --

11 MR. WATTS: Okay. But, Your Honor, if

12 they had been having meetings --

14 MR. WATTS: If they had been having

15 meetings with Grier and Grier was telling his

16 investigators that he wanted to clean house at Key --

17 that, Your Honor, is the core of -- of -- I think,

18 of -- of an agreement that was there. I don't

19 have --

20 THE COURT: But that doesn't show that

21 there was a meeting of the minds between Ms. Kroger

22 or any of the other people. I mean, some of the

23 stuff I read yesterday when I was going through

24 this -- you've named other lawyers at the Disiere

25 firm as well.

DONNA KING, CSR 164TH OFFICIAL REPORTER (713) 368-6256 26

1 MR. WATTS: There's one other lawyer,

2 Jacks -- well, he -- if you look in there, he's the

3 one --

4 THE COURT: I looked in there. You --

5 MR. WATTS: He's the signatory on

6 the --

7 THE COURT: Stop. Stop. We had this

8 problem last time, where you like to talk when I'm

9 talking.

10 MR. WATTS: I'm just trying to --

11 THE COURT: No, no. Stop. Okay? We

12 had this before. I'm not going to go through that

13 again. Okay? I'm really not going to have that

14 today. So what I'm trying to tell you is: You got

15 bigger issues than you're realizing.

16 Your five interrogatories, frankly,

17 just don't -- this interrogatory doesn't cut it. It

18 just doesn't cut it. It doesn't get to the meat of

19 it. Everything you've just told me -- maybe

20 Mr. Grier --

21 Sorry, Mr. Hopkins.

22 But maybe Mr. Grier's got some issues,

23 but that doesn't mean that the Disiere firm,

24 Ms. Kroger, Ms. Gomez -- Perez Gomez, whatever --

25 doesn't mean that any of them made an agreement with

DONNA KING, CSR 164TH OFFICIAL REPORTER (713) 368-6256 27

1 Mr. Grier. That's what I'm asking you. That's what

2 I thought this interrogatory was going to say --

3 was -- was "Please list out the gist of every single

4 conversation between you, Ms. Kroger, and Mr. Grier

5 or Ms. Gomez and Mr. Grier."

6 MR. WATTS: Well, I'm trying to get

7 there, Your Honor, and I -- and I ask -- if you look,

8 it's not over. First of all, by the way, Loftin

9 doesn't say. Loftin deals with requests for

10 production. It doesn't deal with interrogatories, so

11 counsel -- counsel's off base on that.

12 THE COURT: Get -- get to it.

13 MR. WATTS: But secondly -- but

14 secondly, Your Honor, in -- in -- in the -- in -- in

15 the -- in the first interrogatory, what I've asked

16 her to do is to tell me -- I -- I've -- I -- I had,

17 at that time, the -- and -- and was -- and pretty

18 much still have it, I guess. -- the -- the billing

19 information. "Tell me who you talked to, and tell me

20 when you talked to them." She's -- she's put down in

21 her billing information, which I think was crafted

22 for the public and not crafted for fact -- but she's

23 put down in her billing information on a quarter-hour

24 basis what she's doing and who she's doing it with.

25 All I want me -- all I want to do is --

DONNA KING, CSR 164TH OFFICIAL REPORTER (713) 368-6256 28

1 like in the Black Lake oil case, I want to see the

2 backup. I want to see the notes. I want to know who

3 she --

4 THE COURT: Stop. Let me try this one

5 more time. Did you ever ask about the communications

6 between Ms. Kroger and Mr. Grier or Ms. Perez Gomez

7 and Mr. Grier? Did you ask about that? No.

8 MR. WATTS: I think I did.

9 THE COURT: No. This interrogatory --

10 MR. WATTS: I think --

11 THE COURT: Stop. This interrogatory

12 says "Tell me every conversation you've ever had with

13 anybody." "Anybody."

14 MR. WATTS: I want to know who she

15 interviewed, and -- and -- and -- and I want to know

16 who she talked to, and if -- and if Majlat is telling

17 me the truth -- or if he's telling my clients the

18 truth when he's telling them under threatening

19 circumstances that "We've been" -- that "You might as

20 well give us the answer. We've been told by the

21 new -- the new superintendent, in meetings with them,

22 to clean the house out there" -- that means they were

23 meeting with Grier.

24 THE COURT: But -- stop. Being told "I

25 want to clean the house" -- maybe Grier's got some

DONNA KING, CSR 164TH OFFICIAL REPORTER (713) 368-6256 29

1 agenda, but being told "I want to clean the house"

2 does not tell me there's an agreement unless the very

3 next statement from Ms. Kroger or Ms. Perez Gomez is

4 "You're right, Terry. I will work with you to clean

5 the house at Key." Is there such a statement? Does

6 that exist?

7 MR. WATTS: Your Honor, with -- with --

8 I don't know if there's such a statement. They won't

9 ask -- answer because they've -- they've objected on

10 phony -- on phony objection.

11 THE COURT: You didn't ask the

12 question.

13 MR. WATTS: I did.

14 THE COURT: I gave you a chance --

15 MR. WATTS: Well -- well, I -- I --

16 THE COURT: -- to ask the question.

17 Stop. I gave you a chance to ask the question. You

18 didn't ask the question. I can't help you try this

19 case. It's not my job to prosecute this case. I

20 gave you a chance to ask.

21 I remember. At the last hearing I told

22 you, "I'm giving you a gift that I'm giving you a

23 chance to ask the very question that they probably

24 don't want to answer, but I'm giving you a chance to

25 ask it." I gave it to you. You didn't ask the

DONNA KING, CSR 164TH OFFICIAL REPORTER (713) 368-6256 30

1 question, so we don't have the answer.

2 Here's what I'm going to do. At this

3 point I'm going to dismiss the conspiracy claims

4 against the Disiere firm and Ms. Mata Kroger because

5 as we sit here today, there is nothing in front of me

6 that makes any kind of conspiracy claim against them.

7 As we sit here today.

8 If -- months from now and you talk to

9 Mr. Grier and Mr. Grier says, "You know what? I did.

10 I sat down with Ms. Kroger," then I am happy to hear

11 a motion for rehearing or an amended pleading at that

12 time, but until there's some evidence of that, not

13 going to happen. So give me an order because I'm

14 dismissing these conspiracy claims.

15 MR. WATTS: May I have my stuff back,

16 Your Honor, please?

17 THE COURT: Yes. Here's this.

18 Can you give this back to him? What is

19 this?

20 MR. MORRIS: Your Honor, the special

21 exceptions and motion to re-urge also extended beyond

22 just the conspiracy allegation. It's just that the

23 conspiracy allegation became the primary focus

24 because that's the only response that was really made

25 on that issue.

DONNA KING, CSR 164TH OFFICIAL REPORTER (713) 368-6256 31

1 THE COURT: I remember that. The

2 claims against the Disiere firm and Ms. Mata Kroger

3 are out.

4 MR. WATTS: For what purpose? In all

5 capacity? For all reasons?

6 THE COURT: All capacities, all

7 reasons, they're out. If you get some evidence later

8 on that makes it prudent to bring them back in, happy

9 to hear that, but --

10 MR. WATTS: Your Honor, if I -- if I --

11 THE COURT: -- we haven't done anything

12 now.

13 MR. WATTS: I'm going to make a motion

14 to sever the rest of the case from -- from this

15 action. Will -- will there -- is -- should I set

16 that for a hearing, or should I just send it down to

17 you?

18 THE COURT: Set it for hearing if you

19 want me to hear something. Happy to hear that, but

20 you need to set it for a hearing.

21 MR. WATTS: You understood? I never

22 did sue Ms. Mike Gomez. I never sued her. She's not

23 a defendant.

24 THE COURT: Okay. But you named her

25 in --

DONNA KING, CSR 164TH OFFICIAL REPORTER (713) 368-6256 32

1 MR. WATTS: No. I didn't name her.

2 THE COURT: So --

3 MR. WATTS: I named -- I named Mata

4 Kroger.

5 THE COURT: Okay.

6 MR. WATTS: She -- Mat -- Ms. Mike

7 Gomez is a -- is a witness because she's Ms. Mata

8 Kroger's assistant.

9 THE COURT: Uh-huh. She's named in

10 these pleadings that are on file --

11 MR. WATTS: That's right.

12 THE COURT: -- because I read her name.

13 MR. WATTS: Well -- well -- that's

14 right, but that doesn't -- un -- unfortunately, if --

15 if she --

16 THE COURT: It doesn't matter. I've

17 made my ruling. You're excused.

18 (End of proceedings.)

DONNA KING, CSR 164TH OFFICIAL REPORTER (713) 368-6256 33

1 THE STATE OF TEXAS ) ) 2 COUNTY OF HARRIS )

4 I, Donna King, Official Court Reporter in and for the 164th Judicial District Court of Harris 5 County, Texas, do hereby certify that the above and foregoing contains a true and correct transcription 6 of all portions of evidence and other proceedings requested in writing by counsel for the parties to be 7 included in this volume of the Reporter's Record in the above-styled and -numbered cause, all of which 8 occurred in open court or in chambers and were reported by me. 9

10 I further certify that this Reporter's Record of the proceedings truly and correctly 11 reflects the exhibits, if any, admitted by the respective parties. 12

13 I further certify that the total cost for the preparation of this Reporter's Record is 14 $_____________ and was paid/will be paid by ___________________. 15

16 WITNESS MY OFFICIAL HAND this, the _____ day of __________________, 2012. 17

19 _______________________________ DONNA KING, Texas CSR 6273 20 Expiration Date: 12/31/12 Official Court Reporter 21 164th Judicial District Court Harris County, Texas 22 201 Caroline, 12th Floor Houston, Texas 77002 23 (713) 368-6256

DONNA KING, CSR 164TH OFFICIAL REPORTER (713) 368-6256 1

2 JACKIE ANDERSON, PATRICK : IN THE DISTRICT COURT COCKERHAM, DIANN BANKS, : 3 and HERBERT LENTON, et al. : : 4 v. : HARRIS COUNTY, TEXAS : 5 TERRY GRIER, Superintendent : of the HOUSTON INDEPENDENT : 6 SCHOOL DISTRICT; ELIZABETH : MATA KROGER; MARTIN, : 7 DISIERE, JEFFERSON & WISDOM,: L.L.P.; DAVID P. FRIZELL; : 8 FRIZELL GROUP, : INTERNATIONAL, L.L.C.; and : 9 ESTEBAN MAJLAT : 164th JUDICIAL DISTRICT

13 SEPTEMBER 30, 2011

17 On the 30th day of September, 2011, the

18 following proceedings came on to be heard in the

19 above-entitled and -numbered cause before the

20 Honorable Alexandra Smoots-Hogan, Judge Presiding,

21 held in Houston, Harris County, Texas.

DONNA KING, CSR 164TH OFFICIAL REPORTER (713) 368-6256 EXHIBIT B 2

4 FOR THE PLAINTIFFS: Mr. Laurence Watts, SBN 20981000 5 Ms. Susan Soto, SBN 24076707 WATTS & ASSOCIATES 6 P.O. Box 2214 Missouri City, Texas 77459 7 Telephone: 281-408-4107 Facsimile: 877-797-4055 8

9 FOR THE DEFENDANTS, ELIZABETH MATA KROGER and MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P.: 10 Mr. Richard A. Morris, SBN 14497750 ROGERS, MORRIS & GROVER, L.L.P. 11 5718 Westheimer Road, Suite 1200 Houston, Texas 77057 12 Telephone: 713-960-6000 Facsimile: 713-960-6025 13

14 FOR THE DEFENDANT, TERRY M. GRIER, SUPERINTENDENT OF THE HOUSTON INDEPENDENT SCHOOL DISTRICT: 15 Mr. John M. Hopkins, SBN 24041127 THOMPSON & HORTON, L.L.P. 16 3200 Southwest Freeway, Suite 2000 Houston, Texas 77027 17 Telephone: 713-554-6767 Facsimile: 713-583-8884 18

19 FOR THE DEFENDANTS, DAVID P. FRIZELL, FRIZELL GROUP INTERNATIONAL, L.L.C., and ESTEBAN MAJLAT: 20 Mr. James M. Corbett, SBN 00783875 BARKER LYMAN, P.C. 21 3600 One Houston Center 1221 McKinney Street 22 Houston, Texas 77010 Telephone: 713-759-1990 23 Facsimile: 713-652-2419

2 THE COURT: All right. We are on the

3 record in Cause Number 2010-21712, Jackie Anderson

4 versus Terry Grier. If I could have appearance for

5 the record, Counsel.

6 MR. WATTS: Larry Watts for Jackie

7 Anderson, Patrick Cockerham, Herbert Lenton. We had

8 filed a motion to sever. We're going to file a

9 motion for non-suit this morning on Gloria Nash,

10 intervenor. We've settled that case with the school

11 district, and we're going to -- we filed a motion to

12 sever Karen Cotton because it was more primarily

13 related to the core issues through the Nash matter.

14 THE COURT: Okay.

15 MR. WATTS: So it's going to leave

16 Anderson, Cockerham, Lenton --

17 THE COURT: Uh-huh. Got it.

18 MR. WATTS: -- and Banks. Excuse me.

19 THE COURT: Okay. Your introduction.

20 MR. MORRIS: Your Honor, my name is

21 Rick Morris. I'm here on behalf of Elizabeth Mata

22 Kroger --

23 THE COURT: Okay.

24 MR. MORRIS: -- and the Martin,

25 Disiere, Jefferson, and Wisdom law firm.

1 MR. HOPKINS: John Hopkins for Terry

2 Grier.

3 MR. CORBETT: Jim Corbett for

4 Defendants Frizell -- Frizell Group, David Frizell,

5 and Esteban Majlat.

6 THE COURT: All right. Okay. So,

7 sounds like you've reached some sort of meeting of

8 the minds with respect to Karen Cotton, so we don't

9 need to --

10 MR. WATTS: Well --

11 THE COURT: -- talk about that.

12 MR. WATTS: -- Gloria Nash.

13 THE COURT: I thought you said Gloria

14 Nash and --

15 MR. WATTS: No, no. What we're

16 doing on Gloria Nash --

18 MR. WATTS: We have reached a meeting

19 of the minds on Gloria Nash. We're waiting for the

20 final papers and funding on that.

21 THE COURT: Okay.

22 MR. WATTS: The Karen Cotton matter is

23 being severed because her link to the core issues of

24 this case was through the -- more -- more -- more

25 akin to Gloria Nash. So since it's -- since Nash is

1 out, I think that it makes more sense to sever.

2 THE COURT: Wouldn't it make more sense

3 for me just to grant the motion to strike the

4 petition intervention, you file a separate lawsuit as

5 to Karen Cotton? Because that's what I was going to

6 tell you to do before you started talking.

7 MR. WATTS: Well, I would -- I would --

8 I would think that it would make more -- more -- more

9 sense to sever, but, Judge, I don't -- whatever seems

10 more sensible to you is what's going to be more

11 sensible in the case, I suspect.

12 THE COURT: Yeah. I mean, it makes

13 more sense to me. It's procedural and, frankly, a

14 logistical and administrative nightmare to sever

15 cases as it is, and it's just going to make it sticky

16 as we go forward trying to say "Are we on the 'A'

17 case, the main case" and all the rest of it. It's

18 better just to be a separate case.

19 MR. WATTS: All right, Your Honor.

20 THE COURT: So I'm going to grant the

21 motion to strike the petition intervention, not that

22 you can't re-file it at the --

23 MR. WATTS: As to Cotton.

24 THE COURT: As to Cotton. All right.

25 That's one down. Now, let's see. We've also got --

1 what's the rest that we have today? The -- the --

2 MR. WATTS: The rest of it, I think,

3 Your Honor, is the -- the -- Mata Kroger, Martin

4 Disiere --

5 THE COURT: Yes.

6 MR. WATTS: -- have a complaint about

7 whether or not I've satisfied -- I think they've --

8 they originally had nine special exceptions, which

9 you granted.

11 MR. WATTS: I think they're now

12 complaining about four special exceptions.

13 Is that --

14 MS. SOTO: Five.

15 MR. WATTS: Five special exceptions.

16 THE COURT: Well, let's hear from them

17 and see what they say.

18 MR. MORRIS: Your Honor, we are here on

19 a motion to strike in follow-up to special exceptions

20 that were previously sustained by the Court.

21 THE COURT: Uh-huh.

22 MR. MORRIS: Before I turn to that, I

23 do want to at least comment on the successive

24 interventions that were filed in this Court, although

25 I recognize the Court has addressed those. One has

1 been mooted. The Court's going to dismiss the other.

2 My client, who's really trapped in what

3 was originally a dispute between the plaintiffs and

4 HISD, has had to expend time and money opposing two

5 interventions, two completely unrelated matters in

6 this lawsuit, and what was most remarkable about the

7 recently filed motion to sever on -- on behalf of

8 Cotton is the grounds asserted in the motion to sever

9 allege that it's got nothing to do with the facts or

10 allegations in the underlying lawsuit, which was the

11 same basis for which we filed the motion to strike.

12 I -- I simply want to be on record that

13 I think it's an abuse of process to file repeated and

14 successive interventions in this underlying matter

15 that opposing counsel knows to be unrelated and would

16 ask that, hopefully, we avoid having future

17 interventions and that this lawsuit does not become

18 the dumping ground for every dispute that some HISD

19 employee has with its employer because my clients,

20 the Martin Disiere Jefferson law firm, shouldn't bear

21 the burden of being involved in that satellite

22 litigation. It should be filed in separate lawsuits

23 and assigned to the appropriate court pursuant to the

24 rules of procedure.

25 MR. WATTS: May I respond?

1 THE COURT: Sure, although I've already

2 ruled --

3 MR. WATTS: Okay.

4 THE COURT: -- so this is all just --

5 MR. WATTS: All right.

6 THE COURT: -- you all --

7 MR. WATTS: Well, that -- then --

8 THE COURT: -- talking, but go ahead.

9 MR. WATTS: No, no. I -- all I'm

10 saying -- when the -- there is -- the -- the -- the

11 central part of this lawsuit is that when Terry Grier

12 became superintendent, he had -- he developed an

13 agenda, and part of the agenda was to -- to take out

14 Mabel Caleb and other leaders of that particular

15 community, which included Gloria Nash.

16 It happened that a part of the --

17 the -- his process was to inter -- interject into the

18 operations of the district a pattern and practice of

19 using -- of using people within the district to -- to

20 strike out at -- at people that he didn't want.

21 Karen Cotton was one of those victims.

22 Now, Karen Cotton -- we never

23 complained in her lawsuit -- in her intervention that

24 she had an issue with -- with Mr. Morris's clients.

25 Mr. Morris read that. He -- he -- he had to supply

1 that information from his own mind, not from the

2 pleading by Karen Cotton. The -- that's the reason.

3 When -- when Gloria Nash, who was

4 the -- the nexus between the -- the core lawsuit and

5 Karen Cotton, was no longer going to be part of this

6 lawsuit, then the pattern and practice that had

7 linked Karen Cotton to the core issue of the lawsuit,

8 the Grier part of the lawsuit, was -- was no

9 longer -- made -- made no -- made no sense, so -- to

10 me, so I took her out. That -- that's the whole --

11 that was the whole deal.

12 THE COURT: Okay. Well, I mean, it's

13 still the same thing I already said. It needs to

14 be --

15 MR. WATTS: Oh.

16 THE COURT: -- separate.

17 MR. WATTS: Thank you.

18 THE COURT: I -- I -- I didn't

19 really --

20 MR. WATTS: And we'll re-file.

21 THE COURT: -- need any more --

22 MR. WATTS: Okay.

23 THE COURT: -- rhetoric about it. I've

24 already taken care of it. So --

25 MR. WATTS: All right.

1 THE COURT: What's next?

2 MR. MORRIS: All right, Your Honor.

3 Let me move on to the motion to strike. This Court

4 has sustained some special exceptions to Plaintiffs'

5 pleadings on two separate occasions, one time prior

6 to the time that the Martin Disiere Jefferson Wisdom

7 defendants were added in the case. That was in

8 January of last year. And then again in May of last

9 year, you sustained a second set of special

10 exceptions that were filed on behalf of my client.

11 So Plaintiff has had two opportunities

12 to re-plead in this case. The principal challenge to

13 Plaintiffs' pleadings was that they're asserting

14 allegations of conspiracy. And you may remember,

15 Your Honor, that when you sustained special

16 exceptions, a particular concern were that the

17 allegations of conspiracy were addressing fellow

18 members of the bar, and the Court, at the urging of

19 counsel, warned opposing counsel that those types of

20 allegations should not be taken lightly and that

21 there should be compliance with the rules

22 requirements that there be good-faith investigation.

23 I can tell you and I think I'll be able

24 to demonstrate to you why there has not been

25 good-faith investigation and why the special

1 exceptions in that matter have not been met.

2 But let me say this that will make this

3 much easier. It's undisputed, in review of the two

4 sets of pleadings that have been filed in this case

5 by Plaintiffs' counsel, that my clients did only a

6 couple of things. They, as attorney-investigators,

7 investigated allegations of employee misconduct for a

8 client, for HISD, and then they provided the client a

9 confidential investigative report, as any lawyer who

10 conducts an investigation would provide to their

11 client. That's it.

12 There's no allegation that my clients

13 were involved in any recommendation with respect to

14 any employment actions taken against any of the

15 plaintiffs, nor were my clients consultant --

16 consulted or involved in the decision of HISD to

17 publish the attorney/client report or confidential

18 report that was provided by the Disiere firm to HISD.

19 THE COURT: Okay. So the long and the

20 short of this is they did the report, but it's not

21 like they sat in Terry Grier's office and said "Go

22 and fire this person"?

23 MR. MORRIS: That's absolutely right.

24 Nor did they tell --

25 THE COURT: Okay.

1 MR. MORRIS: -- him "Release the

2 report" --

3 THE COURT: I realize you completely

4 disagree, but I'm trying to short-circuit and

5 summarize what's coming out of his mouth. Okay?

6 That's going to be your position. Got it. Yes.

7 MR. MORRIS: Your Honor, I think what's

8 telling is -- is if my clients were really involved

9 in a conspiracy of which opposing counsel had

10 good-faith belief, then they would've been included

11 in the original filing of this lawsuit.

12 What I strongly suspect happened is

13 once the original filing was made and Plaintiffs were

14 confronted with the variety of governmental immunity

15 defenses that were asserted in the first round of

16 special exceptions, they realized they needed to find

17 a new target and added the Disiere defendants to the

18 lawsuit. They could have, much like you just heard

19 in your prior hearing, taken depositions in the

20 case --

22 MR. MORRIS: -- to find out if there

23 was any evidence to support any allegation of any

24 conspiracy, which, of course, requires specific

25 intent and agreement to engage in an unlawful act by

1 lawful means or to engage in a lawful act by unlawful

2 means, and that's what's missing from the allegations

3 in this case. Despite this Court's admonitions, I

4 think what best reveals the fact that they don't have

5 the evidence to support the allegations and that

6 these allegations have not -- brought in good faith

7 are their own wordings when they assert the claims

8 against the Disiere defendants.

9 They say Mata Kroger, MDJW, Frizell,

10 FGI, and Majlat personally assisted Grier in a

11 substantial way and/or -- and/or encouraged him in a

12 substantial way and/or conspired with Grier to

13 accomplish his tortuous goals.

14 Mr. Watts, just a few minutes ago,

15 outlined for you his belief that Mr. Grier has a

16 scheme where he's trying to retaliate against Mabel

17 Caleb or his supporters. But what's conspicuously

18 absent from any pleading that's been filed in this

19 case is any allegation that any of my clients were

20 even aware of Mr. Grier's designs or schemes, much

21 less that they had any intent to do anything unlawful

22 to accomplish those schemes or any allegations that

23 there was any agreement -- any date/time/place

24 discussion wherein they all agreed that they were

25 going to try to accomplish something in retaliation

1 by virtue of my clients conducting their

2 investigation. In the absence of those allegations,

3 there's no sufficient allegation of conspiracy

4 sufficient to hold my clients in the case.

5 Opposing counsel also doesn't address

6 the clear legal impediment to their claims. It's the

7 Intracorporate Conspiracy Doctrine. Your Honor, that

8 doctrine says an agent can't conspire with its master

9 unless that agent is acting outside the course and

10 scope of its duties.

11 Here, their own pleadings and their own

12 separate allegations of negligent investigation make

13 it clear that my clients only engaged in actions that

14 were in the course and scope of their employment.

15 For that reason, they can't, as a

16 matter of law, have conspired with any of the HISD --

17 THE COURT: Well, let me ask you this

18 question. Why haven't we had depositions in this

19 case so far?

20 MR. MORRIS: Well, Your Honor --

21 MR. WATTS: Special exceptions.

22 MR. MORRIS: Frankly, I'm trying to

23 avoid subjecting my client to the cost. They can be

24 there as witnesses.

25 THE COURT: I realize that you're

1 trying to do that, but -- but here's the -- here's

2 the point. And you're -- not that you're not making

3 a good point, but all he has to do is take one

4 deposition, and all of these special exceptions would

5 go away. We might still deal with it at summary

6 judgment level, but on summary judgment pra -- or

7 special exceptions practice we could do away with it

8 with a little bit of discovery.

9 MR. MORRIS: Well, Your Honor, we

10 could.

11 THE COURT: Uh-huh.

12 MR. MORRIS: That is a practical

13 consideration --

14 THE COURT: Uh-huh.

15 MR. MORRIS: -- that I understand could

16 moot some of these issues, but before we get there,

17 my clients have an entitlement to require that they

18 plead a viable cause of action. And -- and I want --

19 I want the Court to understand. This is not

20 Mr. Watts's first rodeo in suing attorney-

21 investigators in connection with allegations made

22 against governmental entities. My firm --

23 MR. WATTS: It's my second rodeo.

24 MR. MORRIS: Third, actually.

25 My firm defended Rusty Hardin, who

1 served --

2 MR. WATTS: Third rodeo.

3 MR. MORRIS: -- as attorney-

4 investigator against HISD, only to have those claims

5 against him dismissed.

6 MR. WATTS: When he admitted -- when he

7 admitted that --

8 THE COURT: Okay.

9 MR. WATTS: -- HISD --

10 THE COURT: Okay. Okay. Stop.

11 MR. WATTS: -- kept information --

12 THE COURT: Stop.

13 MR. WATTS: -- from him.

14 THE COURT: Stop. Stop, stop, stop.

15 MR. MORRIS: Second.

16 THE COURT: We're not going to go there

17 this morning. All right, guys? Number one, I really

18 don't like it when people talk over me. That

19 generally makes me angry. It's not good for me to

20 get angry for anyone here. Okay?

21 So, the other thing you should know is

22 I don't know how many rodeos you two have had before,

23 but this is your first one with me. Let's make it a

24 pleasant adventure during this rodeo. Okay?

25 Now, having accepted all of those

1 little warnings, let's get to the issue at hand.

2 Okay? I understand you have some issues with the way

3 that he's pled. He's got a hundred-page petition at

4 this point, which, I mean, I will confess, I have

5 tried to get through, but, as you know, I have a

6 giant docket. I have some people waiting to talk to

7 me for a good long hour at 10:00 o'clock today about

8 one motion. So you understand where I'm going with

9 this? Can we short-circuit all this?

10 Show me the passage, if you will, in

11 the petition that you think does not give you enough

12 to just get us over the special-exception hurdle.

13 I'm not going to discuss the merits of

14 any claim at all. Okay? Whether or not he

15 ultimately will have the proof of this -- that's for

16 summary judgment time. Okay? I want to see if we

17 have enough in this hundred pages to even get us down

18 the road because if we don't have enough in this

19 hundred pages to get us down the road, then you'll be

20 right and it'll be time to get rid of this claim.

21 So, point me to the little passage that --

22 MR. MORRIS: Your Honor, I can't

23 because it's the converse. It's the absence of

24 adequate pleading of a viable claim that brings me

25 here before you today.

2 MR. MORRIS: And -- and I -- I would

3 say this, though. Under the Intercorporate

4 Conspiracy Doctrine [sic], the affirmative

5 allegations that they were clearly engaging in course

6 and scope of their employment, were hired by HISD as

7 counsel -- that prohibits those claims against my

8 clients. All the other claims stem from the -- the

9 conspiracy claims. For instance, he's got

10 Constitutional claims. My clients are gover -- are

11 private actors. They can't be held responsible for

12 violations of the Texas Constitution except and

13 unless they engage in a conspiracy.

14 So if the conspiracy allegations fall

15 away as a matter of law, then essentially their

16 entire case against us falls away as a matter of law.

17 They also assert a negligent

18 investigation claim. The Texas Supreme Court has

19 already rejected the notion of a Texas -- of a

20 negligent investigation claim in the Sears case,

21 Your Honor, Texas Farm Bureau Mutual versus Sears,

22 Texas 2002 case. There's no privity of relationship,

23 of course, between my clients, as attorney-

24 investigators, with his client. The Supreme Court

25 made that clear in Barcelo versus Elliott, Texas,

1 nineteen -- Texas Supreme Court case, again 1996.

2 With respect to the Intercorporate

3 Conspiracy Doctrine, our 14th Court of Appeals, in

4 Atlantic Richfield Co. versus Misty, made that clear.

5 And, Your Honor, I point out to you it's well

6 established -- and, actually, I have had many rodeos

7 with Mr. Watts on this very point. -- that where you

8 fail to plead in accordance with special exceptions,

9 the proper remedy for the Court is to dismiss the

10 claim.

11 MR. WATTS: We've had no rodeos on

12 that, Counsel.

13 MR. MORRIS: Well, there's --

15 MR. MORRIS: -- an appellate

16 decision --

17 THE COURT: You two have --

18 MR. MORRIS: -- in the Corpus Court

19 of -- Christi Court of Appeals on --

20 THE COURT: -- this discussion without

21 me.

22 MR. WATTS: Well, you'll have to show

23 it to me, Counsel.

24 MR. MORRIS: I will.

25 THE COURT: I'm about to walk out of

1 the room because I'm not sure you heard me before.

2 MR. WATTS: I'm sorry, Your Honor.

3 THE COURT: Enough. We get it. You

4 two don't like each other. I really don't, frankly,

5 care. All I'm trying to do is get you an answer so

6 that you can get about your business for the rest of

7 your day. All right?

8 MR. WATTS: Yes.

9 THE COURT: So --

10 MR. MORRIS: Just --

11 THE COURT: Are you finished?

12 MR. MORRIS: Just so the record's

13 clear, I'm actually very fond of Mr. Watts.

14 THE COURT: Okay. Well, good. You all

15 have that kumbaya later.

16 Mr. Watts, your response.

17 MR. WATTS: Yes, Your Honor. First of

18 all, on the -- let's take -- there were nine special

19 exceptions. There are now four that they're -- five

20 that they complain of. The five that they complain

21 of are, number one, the -- they say I failed to plead

22 intent to conspire on the civil conspiracy.

23 In -- in the requirements, all I have

24 to do is plead that there was a meeting of the minds.

25 Just by way of example, if counsel will turn to the

1 pleading, which is erroneously marked "99 of 212,"

2 and it's actually Page 88 -- what I state in the

3 pleading there -- this is by way of example. In

4 Paragraph 3: "Grier and MSB recruited the MDJW

5 defendants to force Plaintiffs to bear false witness

6 against Caleb, and when they wouldn't, Defendants

7 accused Plaintiffs of being obstructive and bearing

8 false witness to protect Caleb and Adebayo."

9 4.4: "Grier was joined and/or assisted

10 by the MDJW defendants in his plan to force

11 Plaintiffs to testify falsely. When Plaintiffs

12 wouldn't testify falsely, the MDJW defendants joined

13 Grier to retaliate against Plaintiffs by fraudu --

14 fraudulently inducing Plaintiffs to engage in

15 interviews in which Defendants would then claim

16 Plaintiffs had withheld information or told untruths

17 to protect Caleb." It goes on.

18 If you would look then, next, to the

19 next page, which is erroneously marked nine-something

20 of 212 -- it's eighty -- it's the 89th page,

21 actually, but it's the one following the one that I

22 just had. At the top, which would be the continuing

23 of Paragraph 4, "Plaintiff Mata Kroger, MD -- Mata

24 Kroger, MDJW, Frizell, FGI, and Majlat personally

25 assisted Grier in a substantial way and/or encouraged

1 him in a substantial way and/or conspired with Grier

2 to accomplish his tortuous goals, and each breached a

3 legal duty owed to Plaintiffs." Let me stop before I

4 go further, Your Honor.

5 MR. MORRIS: Counsel --

6 THE COURT: Whoa, whoa, whoa, whoa.

7 Stop. Actually, you just said something that was

8 very telling. They -- that the law firm defendants

9 breached a duty owed to Plaintiffs. That's the

10 allegation? That's one of the allegations?

11 MR. WATTS: Yes, Your Honor. They

12 breached a duty that they owed to the plaintiffs.

13 THE COURT: Why did they owe a duty to

14 Plaintiffs? Did Plaintiffs --

15 MR. WATTS: Well --

16 THE COURT: -- hire them?

17 MR. WATTS: First of all, you owe a --

18 they owed a duty not to misrepresent or not to

19 intimidate or not to coerce or not to threaten. Let

20 me --

21 THE COURT: That's a stretch.

22 MR. WATTS: I'm stopping -- I'm

23 stopping a little early, but let me -- let me -- let

24 me -- let me come back, and I'm going to make -- I

25 want to talk about that duty. That was down the

1 line. But counsel says that it's obvious that I

2 didn't do an investigation because I didn't have his

3 clients in the lawsuit from the very beginning. This

4 lawsuit was filed in March 2010.

5 THE COURT: Yeah. Here -- before you

6 waste time talking about that, I'm not swayed by that

7 argument.

8 MR. WATTS: Okay.

9 THE COURT: So go to your next one.

10 MR. WATTS: All right.

11 THE COURT: How about we just go back

12 to that duty question that I just asked you?

13 MR. WATTS: All right. Well, let's --

14 let's -- well, the duty -- I have evidence,

15 Your Honor, that -- that as a result -- and I

16 cross-examined, in one of the hearings, Ms. Mata

17 Kroger.

19 MR. WATTS: Ms. Mata Kroger, when -- I

20 have evidence that she was contacted initially

21 through another outside counsel and that she was told

22 that -- that Grier wanted the firm, as selected by

23 this outside counsel, to -- to build a case against

24 Mabel Caleb, that -- Mata Kroger then admitted in her

25 testimony that she met with Merri Schneider-Vogel of

1 Bracewell Giuliani --

2 THE COURT: Uh-huh.

3 MR. WATTS: -- at the time, and -- may

4 have been Bracewell -- may have been Thompson. Same

5 group.

7 MR. WATTS: -- she met with them and --

8 and Elneita Hutchins-Taylor, general counsel, at

9 their office and got her march -- marching orders.

10 She knew what -- the -- the deal was

11 to -- to -- to -- to -- to basically discredit Mabel

12 Caleb and then to try to build the evidence against

13 her. That's why she had Patrick Cockerham, and

14 that's why she had Jackie Anderson, and that's why

15 she tried to -- to get -- and Herbert Lenton. That's

16 why they tri -- she and Frizell and Majlat and a

17 couple of others -- one other that I can think of

18 right now, Ms. Paris from her firm, tried to get my

19 clients to -- to tell falsehoods about Mabel Caleb.

20 The duty that is owed to my clients?

21 They owed the duty to tell -- they owed the duty --

22 as third-party beneficiaries, they owed the duty to

23 my client not to try to force my client into lying.

24 My clients, on behalf of themselves or anybody

25 else -- my clients have, under West Virginia versus

1 Barnett -- since 1943 it's a Supreme-Court-

2 recognized right to silence. They have a right not

3 to speak out. But --

4 THE COURT: Yeah. That doesn't

5 establish a duty. You got issues there. That

6 doesn't --

7 MR. WATTS: Well --

8 THE COURT: -- establish a duty.

9 MR. WATTS: Okay. Okay. On the

10 negligence issue, negli -- if the -- the -- there is

11 not a -- a -- everything in this lawsuit is

12 essentially intentional or -- or -- or gro -- or

13 callus disregard.

15 MR. WATTS: Everything --

16 THE COURT: Have you -- stop. Have you

17 alleged -- because -- I -- I mean, show me in this

18 hundred-and-whatever pages where we are alleging that

19 Mata Kroger intended to get fraudulent testimony out

20 of these --

21 MR. WATTS: Paragraph 7 on -- on

22 Page -- actually, Page 89 of the complaint.

23 "Mata Kroger, acting for herself and for MDJW,

24 Frizell, acting for himself and FGI, and Majlat,

25 acting for himself, Frizell, and FGI, intentionally

1 constructed and/or misconstructed -- misconstrued

2 facts and linked them with inflammatory statements

3 and false conclusions and implications to tortuously

4 interfere with the employment and/or business and/or

5 careers of Plaintiffs', and in instances where

6 Plaintiffs are certified by the state of Texas, used

7 their influence to assist Grier to cause the TEA

8 division of educator certification to harass and

9 threaten Anderson and attempt to stigmatize, without

10 legal basis, the educator certificates not only of

11 Caleb, but also Anderson." That's still going on.

12 THE COURT: Stop. Stop. You're suing

13 Mata Kroger for her opinion, how she interpreted

14 whatever she was told by these people?

15 MR. WATTS: No. She was there. She

16 was -- it was -- it wasn't that -- what she was told.

17 She was present when -- and -- and -- and if -- and

18 if not present, her -- her -- these were her agents,

19 and they were present. She --

20 THE COURT: Right. But stop. Listen

21 to my question, because what you just read to me --

22 all right? -- which --

23 MR. WATTS: That's only one part.

24 THE COURT: Stop. What you just read

25 to me -- which, let's just go on record now. I'm not

1 a giant fan of being read to, which is why I always

2 ask people just -- just to hand it to me, and I can

3 read it myself. But what you just read to me was

4 that she misconstrued fact and that she did so in an

5 intentionally fraudulent way. Right? By its very

6 definition, misconstruing facts is her interpretation

7 of what she heard from these people, right?

8 MR. WATTS: Well, that's not what I

9 meant to say. What I meant to say is that she got an

10 apple and -- and told the -- and -- and said that she

11 received an orange. What she --

12 THE COURT: Now, that -- that's in --

13 that's intentional. That would be a lie.

14 MR. WATTS: That's a lie.

15 THE COURT: If that's what you're

16 saying --

17 MR. WATTS: I said "lie" before and got

18 in trouble with counsel, and I don't want to say --

19 THE COURT: Well -- because if you're

20 going to say that she's lying and you're saying that

21 an officer of the court is lying, then -- you then

22 have a duty not only to sue her in this context, but

23 take her up to the State Bar to the grievance

24 committee behind --

25 MR. WATTS: Well --

1 THE COURT: -- stuff like that.

2 MR. WATTS: -- I'm not sure I have that

3 right, but I think that I have the right to prove

4 whether or not that's a fact.

5 The -- you know, the fact that

6 counsel -- the -- the -- the foun -- the fact that

7 Ms. Mata Kroger -- by the way, on -- on -- let me

8 just say that in the Hardin matter -- I just put that

9 to rest. In the --

10 THE COURT: I have already forgotten

11 it.

12 MR. WATTS: Okay. Ms. Mata Kroger, by

13 being a member of the bar, is -- is -- is not immune

14 from responsibility to the truth and integrity.

15 Ms. Mata Kroger was placed in the position she was

16 placed in where her firm was able to pick up a half a

17 million dollars for doing this investigation.

18 THE COURT: Okay. I don't -- I don't

19 need any of that stuff.

20 MR. WATTS: Well, I -- but I -- that's

21 part of --

22 THE COURT: I'm trying to get to where

23 in here it tells me that you allege that she intended

24 to, for lack of a better word, lie --

25 MR. WATTS: Okay. Well, I --

1 THE COURT: -- because so far --

2 MR. WATTS: -- said that -- I said

3 that -- I said that several times throughout here,

4 but let me -- let me go through, and I'll -- I'll

5 point -- by the way, on the -- the intracorporate --

6 can I touch that while I'm on it briefly, the

7 intracorporate conspiracy?

8 That was created by the Fifth Circuit

9 in 1952 in Nelson Radio versus Motorola. That's an

10 antitrust case. It doesn't apply to civil rights

11 cases. It -- it doesn't apply to civil rights cases

12 for the very clear reason that it -- it -- that it is

13 a -- a -- an attempt to re-visit a post-

14 reconstruction attitude, and it's -- it's law that

15 really just doesn't apply. The -- and I think -- I

16 think probably one of the greatest examples or

17 dissertations on that is by Horowitz at Northwestern

18 Law Review, but the point is that -- that -- what I

19 do say about Mata Kroger --

20 THE COURT: Uh-huh.

21 MR. WATTS: All right?

22 THE COURT: And -- and -- you know

23 what? Before we go even one step further, have we

24 had any written discovery to Ms. Mata Kroger, any

25 interrogatories?

1 MR. WATTS: Haven't done anything, and

2 I'm ready -- I'd like to do that, but I -- I

3 understand that -- I -- I know that were I to send

4 discovery out --

5 John, did I send you discovery in --

6 MR. HOPKINS: We've exchanged written

7 discovery.

8 MR. WATTS: We have exchanged written

9 discovery, but not with Mata Kroger.

10 MR. HOPKINS: I'm wait -- waiting on --

11 I'm waiting on answers.

12 MR. WATTS: Yeah. But not with

13 Mata Kroger.

14 THE COURT: Mr. Morris, is -- is he

15 about to say that if he had sent you interrogatories,

16 you would've objected to answering them in light of

17 the special exceptions?

18 MR. MORRIS: I honestly don't know,

19 Your Honor. I probably would have given the state of

20 these pleadings and the fact that there's no viable

21 claims asserted. I probably would've done that.

22 It -- it -- I -- I say it with some

23 degree of speculation because I think it would've

24 depended on the nature of the discovery and how

25 difficult it would've been to respond. So I -- I

1 don't know without having seen it, but I will confess

2 to the Court, given my belief that there clearly is

3 no viable claim asserted against my clients, I

4 probably would've opposed it.

5 THE COURT: Uh-huh.

6 MR. WATTS: Your Honor --

7 THE COURT: I am tempted -- because,

8 frankly, I would just like to put this issue to bed,

9 and I'm not sure that doing what you wish me to do at

10 this time would actually fully and completely put

11 this issue to bed. I almost think it's better served

12 to do a little written discovery, which is not a

13 great expense. Yeah, I'm sure a depo probably would

14 because he'd try and go on for hours, and then you'll

15 have to come down here and complain about it or you

16 have to call in the middle of it about objections and

17 all that good stuff.

18 I almost think these issues could

19 really be taken care of with a couple of carefully

20 worded interrogatories to Mr. -- to Ms. Mata Kroger.

21 That might answer all of this,

22 because -- for example, if it's a flat-out question

23 of: Did you, you know, have some private meeting

24 with so-and-so and intend to misrepresent the facts

25 that you were given --

1 MR. WATTS: She'll probably say --

2 THE COURT: And if she says "No," then

3 this goes away because you have nothing. That's the

4 whole point.

5 MR. WATTS: That's not entirely true,

6 Your Honor.

7 THE COURT: That's whole point. I'm

8 trying to end this once and for all for everybody at

9 the least expense. I mean, continually --

10 MR. WATTS: Well, can I at least

11 take --

12 THE COURT: -- coming down here --

13 MR. WATTS: Can I take some

14 depositions?

15 THE COURT: -- to hear -- I'm sorry.

16 Was I talking? Was I talking? I know I've gone over

17 this a couple of times. I really know I've gone over

18 this a couple of times. Usually when I'm opening my

19 mouth and sound comes out -- that means I'm talking.

20 And if you would stop and actually

21 listen to the thoughts that are coming out of my

22 mouth, you would realize that I was actually giving

23 you a break. But you're so busy interrupting me

24 instead of listening to where I was going that it

25 creates problems for your own argument. Maybe if I

1 speak louder, you will understand that I am talking,

2 therefore, you should not be. Understand?

3 MR. WATTS: Understood.

4 THE COURT: As I was saying, my

5 inclination and what I'm going to do at this point,

6 since my 9:00 o'clock docket is now over -- I'm going

7 to table this issue. I'm not going to rule on it.

8 What I am going to instruct you to do,

9 Mr. Watts, is to send five interrogatories. They

10 must be carefully worded. You get one shot at it.

11 If you don't word them right and he comes back with

12 valid objections, then you got a big problem.

13 Understand?

14 MR. WATTS: (Indicating.)

15 THE COURT: No. I'm not done yet.

16 You're going to answer those five

17 questions in a shortened time frame so that we can

18 get rid of this whole matter. You got two weeks --

19 two weeks. -- to answer those when you get them.

20 You have one week to craft -- one week

21 to design five interrogatories that will deal with

22 the issues that we keep on seeing on these special

23 exceptions.

24 You got two weeks to answer them.

25 Period, the end.

DONNA KING, CSR 164TH OFFICIAL REPORTER (713) 368-6256 34

1 Then we will come down here and have a

2 productive conversation, where I'm sure Mr. Watts

3 will have learned not to talk over me. Understand?

4 MR. MORRIS: Yes, Your Honor.

5 THE COURT: That's what we're doing.

6 This hearing is over. Good day.

7 (End of proceedings.)

DONNA KING, CSR 164TH OFFICIAL REPORTER (713) 368-6256 35

4 I, Donna King, Official Court Reporter in and for the 164th Judicial District Court of Harris 5 County, Texas, do hereby certify that the above and foregoing contains a true and correct transcription 6 of all portions of evidence and other proceedings requested in writing by counsel for the parties to be 7 included in this volume of the Reporter's Record in the above-styled and -numbered cause, all of which 8 occurred in open court or in chambers and were reported by me. 9

10 I further certify that this Reporter's Record of the proceedings truly and correctly 11 reflects the exhibits, if any, admitted by the respective parties. 12

13 I further certify that the total cost for the preparation of this Reporter's Record is 14 $_____________ and was paid/will be paid by ___________________. 15

16 WITNESS MY OFFICIAL HAND this, the _____ day of __________________, 2011. 17

19 _______________________________ DONNA KING, Texas CSR 6273 20 Expiration Date: 12/31/12 Official Court Reporter 21 164th Judicial District Court Harris County, Texas 22 201 Caroline, 12th Floor Houston, Texas 77002 23 (713) 368-6256

DONNA KING, CSR 164TH OFFICIAL REPORTER (713) 368-6256