NO. 01-15-00267-CV FILED IN 1st COURT OF APPEALS IN THE COURT OF APPEALS HOUSTON, TEXAS FOR THE 1ST JUDICIAL DISTRICT OF TEXAS 3/25/2015 12:01:47 PM AT HOUSTON CHRISTOPHER A. PRINE Clerk IN RE SOLID SOFTWARE SOLUTIONS, INC., d/b/a EDIBLE SOFTWARE Original Proceeding from the 215th Judicial District Of Harris County, Texas Trial Court Cause No. 2013-74668 RELATOR SOLID SOFTWARE SOLUTIONS INC. d/b/a EDIBLE SOFTWARE’ S APPENDIX D TO PETITION FOR WRIT OF MANDAMUS Gregg M. Rosenberg Texas State Bar No. 17268750 Tracey D. Lewis Texas State Bar No. 24090230 ROSENBERG SPROVACH 3518 Travis, Suite 200 Houston, Texas 77002 Telephone (713) 960-8300 Facsimile (713) 621-6670 gregg@rosenberglaw.com Attorneys for Relators TABD 2/20/2015 4:02:54 PM Chris Daniel -District Clerk Harris County Envelope No. 4236215 By: JEANETTA SPENCER Filed: 2/20/2015 4:02:54 PM No.2013-74668 ANDREA FARMER § IN THE DISTRICT COURT OF § v. § HARRIS COUNTY, TEXAS § HENRI M0 RRIS and SOLID SOFTWARE SOLUTIONS, INC. § § ~ d/b/a EDIBLE SOFTWARE § 2151h JUDIC~~ISTRICT 0~ PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTIO~ DISMISS OR, ALTERNATNELY TRADITIONAL MOTION FOR MARY JUDGMENT C), TO THE HONORABLE JUDGE OF SAID COURT: (~ 0~ COMES NOW Andrea Farmer, ("Ms. F~@'er"), and herewith respectfully responds to the Motion to Dismiss or, alternati¥~,] Traditional Motion for Summary O~J! Judgment, ("M/MSJ"), heretofore filed h&by Defendants Henri Morris and Solid Software Solutions, Inc. d/b/a Edib& Software, ("Morris", "Edible", collectively "Defendants"); and, in support pede the following information, argument and authority: 0~ ,lQ~ I. ~SJ RESPONSE EXHIBITS In order to pro~q support her Response to the instant M/MSJ with admissible 0~~ evidence or o~~ appropriate authority, Ms. Farmer respectfully marks for identification~ attaches hereto the following Response Exhibits: 1 1) ~onse Ex. "A," file-marked copy of Plaintiffs Original Petition herein, reflecting a file-date of December 13, 2013, attached for ease of reference; 1 Each and all of such are incorporated herein and made a part hereof as if set out in full, pursuant to Tex. R. Civ. P. 58. See also Malone v. Shoemaker, 597 S.W.2d 473, 476 (Tex. Civ. App. 1980, no pet.); Jacox v. Cobb, 659 S.W.2d 743, 745 (Tex.App.- Tyler 1983, no pet.). 1 2) Response Ex. "B," file-marked copy of Defendant's (sic) Original Answer herein, reflecting a file-date of December 18, 2013, attached for ease of reference; 3) Response Ex. "C," file-marked copy of Defendants' Plea to the Court's Jurisdiction, filed in Cause Nos. 2012-65503, 2012-65503-A and 2012- 65503-B, styled collectively Keri Hill, Michelle Barnett a11!if Stacy Stewart v. Henri Morris and Solid Software Solutions, I~djbja Edible Software, reflecting a file-date of February 21, 201('f®J 4) Response Ex. "D," file-marked copy of Plaintiffs' Re~p to said Plea, in Cause No. 2012-65503, styled Keri Hill and lie Barnett v. Henri Morris and Solid Software Solutions~, . djbja Edible Software, reflecting a file-date of February 27, ~ 5) Response Ex. "E," file-marked copy of thei!:®?Denying Defendants' Plea to the Jurisdiction, of Hon. Jeff Shad · , dated March 3, 2014, in Cause No. 2012-65503, Styled Keri HjJI)fA ichelle Barnett and Stacy Stewart v. Henri Morris and Solid~lutions, Inc. djbja Edible Software; ;r!!P 6) Response Ex. "F," file-marked~ of the Superseding Indictment entered in Criminal Action ~:1i-12-255SS, pending in the United States District Court for t~'Southern District of Texas, Houston Division, styled United S,tfl!!s of America v. Henri De Sola Morris, (Doc. 67), reflecting a f~'dl1lte of August 5, 2013; 7) Response Ex. "fiG" 1~arkedcopy of the Plea Agreement entered in said federal cri~ l cause, (Doc. 129), reflecting a file-date of December 3, 20 8) Response ~q,, copy of download of article posted online by the Houston ,~~ronicle, on its officially maintained website, htt : .chron.com news houston-texas article, dated December entitled "Software Exec Pleads Guilty to Drugging, Abusing ~Employees, quoting comments by Morris' counsel of record in t e · deral criminal cause; 9) Response Ex. "I," relevant portions of the transcript of the deposition of Ms. Farmer, taken on July 11, 2013 in regard to Cause No. 2012- 65503, styled Hill, et al v. Morris, et al, pertaining to the matters at issue herein; 10) Response Ex. "J," relevant portions of the transcript of the deposition of Beth Jackson, ("Jackson"), taken on July 24, 2013, in regard to 2 Cause No. 2012-65503, styled Hill, et al v. Morris, et al, pertaining to the matters at issue herein. II. RELEVANT FACTS AND PROCEDURAL HISTORY A. Introduction. Defendants' M/MSJ asserts basically two defenses: (1) Civ. Pra~ Rem. Code tort limitations; and, (2) the failure of Ms. Farmer to conform to the~~s Commission on Human Rights Act's ("TCHRA'') administrative requirement~ither defense has any vitality whatsoever under controlling Texas law or ·~ un~"1ny reasonable notion ·{ffJ~ whatever of basic human decency, fairness or justice. l':'fVarmer has asserted viable and timely claims and they should be allowed to re~~nding in anticipation of a full trial on their merits before a jury of the Parties' p~~ The general facts of this case are sucply and relevantly summarized in the ~ federal criminal Superseding Indictmeending against Morris, (Response Ex. F). During roughly the period of Feb~~f;» 8, 2010, through about February 27, 2012, Morris took various female e * e s with him on business-related trips to cities outside Texas. On each trip, ~Qhis victims were thus isolated, far from home and all the more vulnerable, Q~ date-rape drugged and, without their consent, sexually abused, molested anlhtook nude photographs of his unconscious and completely o~@>v insensate and d~eless victims. Although each trip arose out of Morris' capacity as President a~ of Edible and the supervisor of each of his victims, and the company should be hcla liable for the intentionally tortious acts of its principal, Morris' predatory acts had nothing whatever to do with his victims' work conditions. Among his victims was Ms. Farmer and Defendants' instant effort to characterize her claims as workplace complaints is franldy both cynical and delusional. 3 In confirmation of that, it's important for the Court to note that in their instant M/MSJ, Defendants' entire Section II, "Statement ·of Facts," (M/MSJ, pgs. 2-8), addresses the alleged nature and scope of Ms. Farmer's recollections of her violation by Morris, with numerous citations to her Original Petition, (Response Ex. A), her. statement to the FBI, (Motion Ex. D), and her deposition, (Motion Ex. ~espouse Ex. £~@; I), as though those documents constitute the exclusive factual univ~ upon which this case and Ms. Farmer's claims are based. Moreover, such factu#entation adds much that has no actual role in this case, namely Ms. FarmQ~iscussions of workplace conditions. First, she discusses such only in response .fu. Defendants' counsel's direct 0~ questioning in her discovery deposition. Second, ~ facts might be very important were Ms. Farmer asserting an employment sexu~arassment ~~ or discrimination claim. However, regarding her actual claims, all ~ facts are completely irrelevant. Conversely, not a single word or re&nce is therein contained regarding the bigger picture of this case, which is, again,~ically important to each of the bases Defendants assert in support of their disne'fand/or summary judgment motion. Absent is any reference to the Supersedi~dictment, (Response Ex. F), Morris' Plea Agreement, IQJ~ . (Response Ex. G), and ~rris' persistently cynical denial of any responsibility for his ·~ actions whatsoever~reflected in Response Ex. H. 2 Careful examination of the fuller picture of wha#. Farmer had to say in her Original Petition, FBI statement and deposition,$n considered in the context of the Superseding Indictment, Plea 2 See "Software Exec Pleads Guilty to Drugging, Abusing Female Employees," December 3, 2014, http: l/www.chron.com/news/houston-texas/article, "Morris's attorney, Dan Cogdell, had said that the women were consenting adults who willingly drank with Morris, and that Morris never drugged anyone or intended to break any laws. He also said they [the women accusers, including Ms. Farmer] were only making accusations against him to bolster civil suits pending in Harris County." (Such article is admissible pursuant to Tex. R. Evid. 902(6)). 4 Agreement and media accounts of Morris' criminal lawyer's summary of Morris' categorical denial of responsibility will demonstrate Morris to be a callous predator, whose actions stunned Ms. Farmer and deeply affected her perceptions of what actually happened to her. Defendants concentrate solely upon her representations in a vacuum because by doing so they cleverly attempt to diminish the emotional a~j'lsychological f2~rf!! impacts of her victimization. When those serious consequences are ~unably and quite ~ properly factored in, Defendants' statute of limitations a~~xas Commission on Human Rights Act, ("TCHRA"), preemption argument~upport of dismissal or . Q· summary disposition are revealed to be utterly untenabl~herefore, Ms. Farmer will, as 0~ briefly as possible, present the fuller facts of this c~nd then apply to those facts the controlling law. In doing so, she will demon~~~to the Court's satisfaction that the instant M/MSJ should be denied in each a~ry particular. B. The complete facts. ~ In her deposition, (Respo~~· I),a Ms. Farmer testified in relevant part that she went with Morris to Phil~j)hia and Newark about two weeks after she started working at Edible, (75:18- ~), [in May, 2011]. She flew by herself and met Morris at the Philadelphia airpo~7:7-17). Morris had a rental car he used to pick her up, ~ (77:18-21). This w~ a Sunday evening, (77:25- 78:3); and, they drove to the hotel, (78:2-4), (a Ma~, (79:23)). Morris wanted to meet in the concierge lounge, but it was ~ in the hotel bar, (79:2-8). They stayed there about an hour and a half, closed so ~et (79:18-19); then she went to sleep, (79:20-21). However, the next night, they went to the Newark Marriott, (81:14-17); in order to see a New Jersey client the following day, (81:23-24). Later, she could vaguely remember being at dinner and that a comedian was 3 Transcript citations are by page and line(s). 5 there whose picture Morris kept taking, (84:13-22). She has no idea where they were or what she had for dinner, or any other details, (86: 9-13). She remembered going through a tunnel on the way to dinner, but little else, (89:6-13). That evening, she and Morris had met in the hotel concierge lounge and had drinks, (89:14-18). She drinks wine and asked for a glass of it, but Morris insisted she have a mixed drink, ~:18-25). She _e~(fjj insisted on wine and he poured her a glass, but, then he told her th~1ould get another drink to-go and go to dinner in Manhattan and he insisted sh~~ a mixed drink, and he fixed her a drink in a to-go cup, (90:17-25). Howeve~drink was so strong she couldn't drink it, and she told him iliat. He then added ~·e soda to it and insisted iliat o;JEF she drink it, (91:1-22). Shortly, she began to feel v~dizzy, (92:1-10). In the elevator, Morris began to massage her neck and back, wh~ she thought was weird, (93:4-16); o~JI she told him that was not necessary as~as making her uncomfortable, and he stopped. But, later he put his hands o~r shoulders anyway, (93:16-25). By the time iliey arrived in Manhattan, she wa~~oriented, (92:11-13); and, Morris began holding her hand which made her feel ~~comfortable, (93:1-3). Ms. Farmer has absoh~y no memory of anything about ilie dinner or going to it ~g~"" or getting home, (95:2{il6:15). At some point that night, she awoke in her hotel bed with a pillow and .JJ!covers over her head and her blanket s~~~ . down around her anldes. Then, she hear# click of a phone camera and she looked and realized she was naked and MorriSs standing over her, (81:23- 82:4). She was so tired she had trouble adjusting to what was going on and she muttered, "Wait, I'm not ... like what is going on?" Then, she sat up and asked Morris if he had just taken a nude picture of her, (82:5- 11); which he hastily denied, (82:12). She became upset and asked him what he was doing there, and she told him to leave and to give her the picture she knew he had taken, 6 (82:12-15). She was disoriented and confused, but she told him he could not have the picture, but he just said "it was fine," (82:19-23). Then, Morris left the room and came right back in to show her his Blackberry, with no picture in it. She tried to index it, but couldn't, (83:8-17). Then, he left again and she went back to sleep for four hours, (84:6- 9). She very vaguely recalls that when she awoke in her hotel ~ * ~ bed nude, with Morris standing over her, it was about 4:00am, (99:4-8). She# a d an apprehension that he was taking nude pictures of her because she heaQ~ click of the Blackberry, (97:15-20). That he actually did so was not confirmed n~J much later after Morris was 0~- arrested and they found several nude photos of her~ locked flash drive in his office, (101:1-13). She clearly remembers him in her rlil;;J and herself naked in bed, (98:1-5). ~~ He left her room about 4:00 am and she t r e p t until about 8:oo am, (99:4-11). She emphatically denied giving Morris co~t to take nude pictures of her, (104:4-24). More importantly, in addition to b~i?'Zil~ng she had been photographed nude, she also ~~r' feels certain that she was physi~'§ violated because she had redness in her vaginal area and bruises on her arm anch"\ip area". (99:12-22). Although she did not feel she had ©~ been raped, she felt li~she had "been touched" and she was sore in her "female ~~ regions", especially(J),_,-...e outside, (100:1-10). The nex#ning, incredibly, Morris was at the door of her hotel room asking why she w~~ready to see the client! (102:7- 103:8). She met him downstairs and it was she who was apologizing for being unprofessional, (103:11-15); she blamed herself for losing control, (103:22- 104:3). In response, Morris dismissed her concern by saying it "was no big deal", (106:11-15). She felt terrible that day and continued to feel disoriented, (107:1-7). Later, he told her he had "never done anything like this before 7 and he really liked her." (113:4-7). Then, he claimed he had a bad marriage, (113:10-12). She told him their relationship had to be professional; but, he told her he would hug her whenever he felt like it, (113:13- 114:1). She started looking for another job immediately, (114:18-20) .. Ms. Farmer took one more business trip with Morris. On that trip, once again, Morris had her meet him in the concierge lounge of their hote~6:9~10). He ~®i asked her if she wanted a drink and she asked for a chardonnay. B1~tter he brought it to her, it tasted disgusting, like strong medicine, with a #itter alkaline taste, (116:18-25). She said the taste was definitely not a norm~, (118:3-25). She tried a few sips and then said she couldn't drink it, (119:16-iRl. They went to dinner; and, afterwards, Morris pressured her to have anothe~nk, ·~' but this time she refused, (121:1-6). After they returned to Houston, she ~~~y learned that Morris refused to talk ~ to her anymore, for a pretextual reason~:14-25). And, he remained distant and standoffish to her, (125:6-10). ~ Contrary to Morris' deceitf~lil>resentation to Ms. Farmer that "he had never done anything list this before, ~is criminal lawyer's comment that Ms. Farmer and the other victims were mo.v~ ~JU making allegations up to aggrandize their civil suits, (obviously including tl~one), ((Response Ex. H), it should be noted that in the ~ Superseding Indict~, he was criminally charged with very similarly violating four (4) other female e&~yee victims, (Response Ex. F). And, while charge does not equal conviction,~gard to Ms. Farmer, in the Plea Agreement, (Response Ex. G), Morris explicitly agreed to the truth and validity of the facts alleged in Count Five thereof, that: "On or about May 8, 2011, Morris traveled in interstate commerce and committed, and attempted to commit, the drug-facilitated sexual assault of [Ms. Farmer]." (Id., pg. 6-7). And, Morris further plead guilty to the offenses of "violating 18 U.S.C. § 2421, as well as 8 New Jersey Statutes Annotated 2C:14-9(b), Invasion of Privacy." (Id.). Morris further agreed that he was arrested by the FBI on February 27, 2012, at IAH, when he was attempting to leave on another business trip. He had with him three bottles of the "unknown liquid" he used to dilute the drugs he administered to Ms. Farmer by means of alcoholic beverages he supplied to her. He also had four Viagra table~d four Cialis tablets for himself and five pills of the type he administered _c;'il.~!f!j; Farmer, which t~. included sleeping pills and sedatives, which according t~~ analysis and a ~ supervisory FBI Forensic Chemist and Toxicologist were ~tent with the symptoms she described when she was attacked by Morris, which~luded drowsiness, dizziness, 0~~ loss of muscle control, slurred speech, deere~ inhibitions, memory loss or ~~orris agreed that he drugged Ms. impairment, loss of consciousness. (Id., pg. O'V . ~ Farmer's drink at the New Jersey hotel, j~~he testified, and that she suffered all the disorientation and intoxication at din~he testified to. He also agreed that he took nude, unconsented photographs of~ Farmer with his cell phone, and that copies of those pictures were preserve~~ thumb drive in his possession at the time of his arrest. Time/date stamps q~ch confirmed they were taken between 2:00 and 4:00 ©>~ am. He also confirme~ lies he told her the next morning. She also had physical ~ markings confirmi~r violation and the photographs were nude and explicit. So, it's imperative for ~ourt to observe that while she was very confused that night and afterwards,~ore story has been confirmed by forensic evidence and the confession of Morris! In Ms. Farmer's statement to the FBI, dated February 22, 2013, (Motion Ex. D), her explanation of the fuzziness and limits of her recollections on the night she was 9 assaulted, (Id., pgs. 29-42; 45-46), are virtually identical to her deposition testimony, in every particular. During the entirety of discovery in this case and the Hill companion case, the total of depositions taken of witnesses in support of Morris has been one, that of Beth Jackson, (Response Ex. J). Jackson testified in her deposition,4 in re~t part, that . /?._'@ She drinks 2-3 mixed drinks daily, (28:3-9); and, she has often be~put drinking with Defendant Morris, (22:1-5; 27:19-21; 30:3-8; 33:25- 34:3). Sh)l~ed that initially, she . ~ had a business relationship with Morris, (32:10-12); but~ater conceded that even though she knows he is married to Ruth, whom she has .ifu.t, (35:3-10), she has travelled o~~r with him at least once a month since 2009, (37:~, and she had a long-running "personaI reIatwns . h'1p" Wit . h h'1m smce . Q(49:4-22), Iastmg ab out 2GQS'; . mto . 2011, (51:21- o~ 52:4); which specifically included a sexua~onship with him, (49:20- 50:4). During this time, both of them were marrie~ other people, even though their respective spouses did not !mow oftheir ill~~ationship, Cso:s-20). This relationship included sexual intercourse, (50:1-4), ~tal penetration, (53:6-8), and allowing him to photograph her nude, (53:~~), on numerous occasions and in numerous locations, 0~ (53:24- 54:5). He took ~e nude photos with his cell phone, which he would then save ~ by downloading t~i?onto hard drives or flash drives, (55:3-8); her only restriction bein)l; that in t~ly nude photos, her face not be shown, (54:16- 55:2). She said she intended M@-~ to use the photos to arouse himself with his wife because while she easily aroused him, his wife did not, (54:9- 56:2; 57:8- s8:s; 58:25- 59:19; 60:5-19). The FBI now has the photos, (61:1-7). She also conceded that Morris confided to her that he also took nude photos ofAndrea Farmer, (61:8-19). 4 Citations to the transcript thereof are by page and line(s). 10 Jackson said Morris often travels with small "airplane" bottles, (63:8-10); which she assumed he used to "re-cycle" liquor, (63:24- 64:4); and, she has seen Morris often make drinks for others, (68:12-14), including the use of "to-go" cups, (69:1-3). Nevertheless, she obdurately disagrees with Andrea Farmer's testimony "too%", (67:14- 16). The Court can evaluate the credibility of such testimony. '* !f!1 Finally, in her Original Petition on file herein, (Response rfi1' A), Ms. Farmer made very clear that the factual basis of her claims was that: "~ant Morris drugged Farmer by putting an unknown substance into a drink, u~~ownst to Farmer. During this time, Morris attempted to sexually assault Farmer~~ o;!f[F took pictures of her while she was unconscious." (Id., pg. 2). Thus, while t~aims asserted are assault and invasion of privacy, the gravamen thereof are dm2nduced unconsciousness and sexual O~J assault, the very crimes Morris has pled g~ in federal court. Therefore, on the basis of this ~ of supporting evidence and information, it seems remarkably disingenuous tl),vfendants, in their instant M/MSJ, (filed January 16, 2015, over five (5) weeks ae~orris' entry of his sworn guilty plea), are even now contending: (1) "plaintiff WJili~Ware of the alleged assault and impermissible pictures g~ taken of her at the time~ events occurred," (M/MSJ, Pg. 3); (2) "she could remember ~ ... Morris allegedly~aging in sexually inappropriate and/or offensive behavior with her," (Id.); (3) "~ad reason to believe that she had been physically violated," (Id., pg. 4); and, (4~'Ye allegedly saw, was aware of and observed these things at that time." (Id.). First, there is nothing whatever "alleged" about what Morris did to Ms. Farmer. He has pled guilty to every lurid detail of it under oath! Second, Defendants want to lock Ms. Farmer into specific recollections, when the thrust of her entire testimony was that she was drugged and completely out of it during her violation and has only the vaguest 11 recollections of it. Such a distortion is especially reprehensible where Morris admitted the sophisticated nature of his carefully plotted and executed drugging of Ms. Framer to achieve exactly the intoxication and disorientation Defendants now contend she doesn't have! Third, not only does her testimony support her claims, even Defendants admit that when she was questioned by the FBI, she expressly denied memo~ recollection of the pictures taken or what they depicted until the FBI showed ~e~!@ ~n to her, (Id., pg. ~ s). ~ II. ·~ ARGUMENTANDAUTHO~ Given the truly egregious nature of this case:~ Farmer and her undersigned counsel believe it's both necessary and approp~«fc, bluntly respond to the defenses asserted in Defendants' instant M/MSJ, base~on five (5) critically important issues. ~ First, in Defendants' Motion to Dismi~(ttey only infer a two (2) year limitations defense, per Civ. Prac. & Rem. Code ~~003(a), yet the Court should note how strange it is that Defendants never once ~at statute, merely discussing case law applying it. If they are so confident of its ~9-cation, why would they be so coy? Obviously, because in both law and equity, ~~3(a) does not apply. Instead, this case is clearly governed by the provisions of~v. Prac. & Rem. Code § 16.0045(a), which provides for an ·~©r applicable five ~~ar limitations period, pursuant to which Ms. Farmer's claims are manifestly~~ asserted. Second, even if § 16.003(a) did control, which is not the case, .that statute's two (2) year limitation period has been tolled under the doctrine of fraudulent-concealment. Third, even if§ 16.003(a) applied and had been timely asserted as a basis for dismissal, neither of which is the case, Defendants' Motion to Dismiss is not timely, pursuant to Tex. R. Civ. P. 91.a3(a). Fourth, in Defendants' Traditional 12 Motion for Summary Judgment, virtually all of the factual assertions are at stark variance with the appalling "Factual Basis for Guilty Plea," as contained in the Plea Agreement Morris has now entered into in his federal criminal prosecution, (Response Ex. G). The total facts of this case literally cry out for a jury trial of Ms. Farmer's claims. Fifth, Defendants' attempt to fit this case within the parameters of ~CHRA is a ~@) complete distortion of that law. Ms. Farmer is not making an(Jl'ort of workplace complaint; she was sexually abused, molested and photograp#ude by Morris, after her drugged her unconscious in a hotel room in New J ersel!_f The fact that the instant M/MSJ has been very r~ssionally prepared is a fitting ~ tribute to opposing counsel's fine professional rep~on. But, its glossy polish should not in any way distract the Court from the harib~th ~~ that Morris is a convicted sexual predator who, on the one hand, will no do~ll the federal court how contrite he is at his pending February 27, 2015 sentenc~for crimes against Ms. Farmer specifically, while here, he is the same smug, a~ant bully who drugged and abused Ms. Farmer and numerous other victims 1~ and denying as strongly as ever. How utterly contradictory that he will b~~doubtedly remorseful to Ms. Farmer in the court where rg~"' he faces federal prison ~ yet, here, he is still denying everything and trivializing Ms. ~ Farmer's humiliati~ his cruel hands. Therefore, Ms. Farmer now addresses each of the forgoing fi~) issues seriatim, in the fervent hope that this Court will hold Defendant~~e same accountability here as Morris has been compelled, by the awful facts he authored, to submit to in the federal court. A. Ms. Farmer's Claims Are Governed by Civ. Prac. & Rem. Code § 16.0045(a)'s Five (5) Year Limitation Period. 13 Ms. Farmer agrees that in her Original Petition on file herein, (Response Ex. A), she has asserted causes of action against Morris based upon the torts of "intentional physical contact... directly and through the instrumentality of drugs," (Id., '1! 10), and "intruding on... seclusion when tak[ing] photographs of [Ms. Farmer] when she was unconscious." (Id., '1l 12). These were further characterized as claims f~sault, (Id., '1f __ e_,rt@ n), and invasion of privacy, (Id., '1!13), as regards Edible. Defendar~ant to take these terms at face value, in a factual vacuum, to lock them into t~~ (2) year limitation period provided by Civ. Prac. & Rem. Code § 16.003(a). ~ver, these claims do not arise from a punch in the nose, a car wreck or a routin~lip-and-fall. They arise from o~F truly insidious sexual abuse facts which shock th~nscious. Therefore, Ms. Farmer vigorously asserts that her claims fall more re~ably ~~ Within the parameters of Civ. Prac. & Rem. Code § 16.0045(a), which p~s for a five (5) year limitation period in cases involving sexual abuse; and, it is t~longer period which should control here. Defendants cite a number of R@lles regarding the application of§ 16.003(a)'s two ~'f:J"" (2) year limitation period to ~ion of privacy claims, but a close reading thereof reveals them to be disting""'~ble ~·&< from Ms. Farmer's instant claims. The invasion of privacy cause of action~ first recognized by the Texas Supreme Court in Billings v. Atkinson, 489 Jz~ S.W.Q~58, 86o (Tex. 1973). However, it was there defied as "A judicially approved defin, of the right of privacy is that it is the right to be free from the unwarrant~):propriation or exploitation of one's personality, the publicizing of one's private affairs with which the public has no legitimate concern, or the wrongful intrusion into one's private activities in such manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities." I d., at 859. What happened to Ms. Farmer is far more egregwus that any of that. In Matlock v. 14 McCormick, 948 S.W.2d 308, 311 (Tex.App.- San Antonio 1997, no pet.), § 16.003(a)'s two (2) year limitation was held applicable to an employee's claim arising out of other employees being told she was under investigation for selling drugs at work. In Stevenson v. Koutzarov, 795 S.W.2d 313, 318 (Tex.App.- Houston [1st Dist.] 1990, writ denied), it was applied to a third-party claim in a nasty divorce case. t-il;=rovington v. ri'~~ Houston Post, 743 S.W.2d 345, 347-48 (Tex.App.-Houston [14th~.] 1987, no writ), it was held that the two (2) year limitation statute was applic~ a claim based upon a newspaper's article placing a person in a false light. QJff; And, it's particularly interesting to note thq~efendants cite Ramirez v. ·~ Mansour, No. 04-06-00536-CV, 2007 WL 21871~t *6, (not reported in S.W.3d) (Tex.App.- San Antonio Aug. 1, 2007, no pet,-}~r the proposition that assault and ·~ battery actions are limited by a two-years~ oflimitations, (M/MSJ, pg. 9, n. 39). In that case, the San Antonio CCA made v~clear that while: "Assault and battery actions are limited by a two-year statute ~itations. Tex. Civ. Prac. & Rem. Code Ann. § 16.003 (Vernon 2006) ... sexu~ault actions are limited to five years. Tex. Civ. Prac. & Rem. Code ~. § 16.0045 (Vernon 2006). (Emphasis added)." Id., rg~:~ at *6. And, Bros. v. Gilttg;j}, 950 S.W.2d 213, 215 (Tex.App.- Eastland 1997, pet. den' d), ~ dealt with a simpl~1sault and sexual harassment claim arising out of a workplace unconsented t~ng. Nothing about that case begins to rise to the level of Ms. Farmer's ~ assault claims while she was drugged unconscious. Similarly, Marburger v. Jackson, 513 S.W.2d 652, 654 (Tex. Civ. App. 1974, writ refused n.r.e.), involved a simple physical altercation. When the much more appalling facts of Ms. 15 Farmer's instant claims are considered in the context of the entire facts, it becomes readily apparent that far more is involved in tbe proper limitations analysis here.s § 16.0045(a)(1) allows a victim to bring a claim witbin five (5) years if tbe injury arises as a result of conduct tbat violates "Section 22.011, Penal Code." Id. § 22.011(a)(1)(A) makes it an offense to penetrate the sexual organ of an~~>var ~~·v person by any means, without that Person's consent. Id. Lack of consent Qesent where the victim has not consented to such penetration and the.perpe~knows the victim is unconscious or physically unable to resist. Id. Ms. Farm~'We very clear in both her v~nal region was red and sore, FBI statement and her deposition testimony that heroiffJJ~ $ 5 Defendants are being disingenuous when they charaQize Ms. Farmer's claims as based upon simple assault and invasion of privacy, wholly sep~d from the entire facts of her humiliating sexual abuse. If Ms. Farmer did not plead her!!! ltrt's~with sufficiently horrifying detail to make the totality of them understandable to ovew e Defendants' feigned myopia has no legal significance. She pled them sufficiently to~ · e Texas pleading standard. See Tex. R. Civ. P. 45(petition shall "consist of a statement i ain and concise language" to give "notice to the opponent" of the "allegations as a whole~Ji le 45(a)("An original petition... shall contain (a) a short statement of the cause of action ~cient to give fair notice of the claim involved ... "); see also Texas Dep't of Parks & W1mldl' ~Miranda, 133 S.W.3d 217, 230 (Tex. 2004)("Rule 45 does not require that the plainti ut in his pleadings the evidence upon which he relies to establish his asserted cause of a ti n. Mullr, 749 S.W.2d at 494-95."); Sw. Bell Tel. Co. v. Garza, 164 S.W.3d 607, 617, n.A(Tex. 2004)("See HorizonjCMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 896-897 (Tex.2~~ ('Texas follows a "fair notice" standard for pleading, which looks to whether the oppasi>&?-1>arty can ascertain from the pleading the nature and basic issues of the controversy a~d ·li'hll.festimony will be relevant .... "A petition is sufficient if it gives fair and adequate notice of~0 facts upon which the pleader bases his claim. The purpose of this rule is to give the opposi rty information sufficient to enable him to prepare a defense." Roark v. Allen, 633 S.W~2 , 810 (Tex.1982).')."); HorizonjCMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 897 (Tex. 2 ("Horizon's intent to invoke the punitive-damages cap found in the Texas Civil Practice emedies Code, even though the pleading referred to an incorrect version of the statute. oS~ e.g., CKB & Assocs., Inc. v. Moore McCormack Petroleum, Inc., 809 S.W.2d 577, 586 (Te'ieipp.- Dallas 1991, writ denied)('A pleading that gives adequate notice will not fail merely because the draftsman named it improperly.')."). And, in stark confirmation of Defendants' obdurate refusal to acknowledge Ms. Farmer's entire claims, one of the Movants here, Morris, has pled guilty to the entire gruesome scope of what Ms. Farmer claims! 16 indicating to her at least some degree of penetration, although she did not believe she had been raped, (see Response Ex. I, 99:20-100:7, [she believed she had been sexually violated and was sore in her "female regions"]). And, the circumstances surrounding her violation and Morris' subsequent arrest absolutely confirm his successful intention to render her unconscious and unable to resist him. Again, in his Ple~reement, he explicitly confessed to such! u"i"'-@) Thus, while he has not been formally charged unde~~s criminal law, his federal criminal conviction is the functional equivalent ~~f. And, justice requires that victims such as Ms. Farmer should be accn~d a reasonably expansive Q~ interpretation of the applicable limitations pe11~ instead of applying a rigid interpretation, like an Old English form of oo~, which distinctly favors a craven Q~ predator like Morris or his enabling em~, Edible. And, her invasion of privacy claim is actually a part and parcel of & sexual violation. Morris took his salacious liberties with Ms. Farmer while ~ was in a helpless condition and then took photographs of her nude bodyG~ding close-ups of her vaginal area, as proof of his sadistic conquest, which he~· bragged about to his mistress Jackson. He was such a g~"'' coward that he took pai~o cover Ms. Farmer's face with a pillow while photographing ~ his "trophy ldll" ~~n repeatedly lied to Ms. Farmer about taldng the photos. Thus, he is the last pe~1 on earth the limitations period should be strictly applied in favor of. In s$rt of such interpretation, in Stephanie M. v. Coptic Orthodox Patriarchate Diocese of S. U.S., 362 S.W.3d 656, 659 (Tex.App.- Houston [14'h Dist.] 2011, rev. den' d), the CCA specifically held, in reversing and remanding the granting of summary judgment to defendants, that: 17 "Focusing on the second portion of subsection (a), the Diocese and Church defendants/appellees argue that the extension of the statute of limitations applies only to suits against the person or persons whose conduct violates the Penal Code. But section 16.0045(a) applies to a 'suit for personal injury,' which includes claims for negligence. There is no language restricting this particular limitations statute to certain types ofpersonal-injury claims; hence, there is nothing in the statute to indicate that the legislature intended to limit this~r vision to causes of action against only the perpetrators o xual assault. Part (c) of section 16.0045 permits a plaintiff G signate unknown persons as defendants in a civil suit based on ch( Stephanie M., at 659. See also~ Catholic Soc. of Religious & Literary Educ., No. CIV. A. H-09-1059, 2010 0 W~3ZJ:5926, at *16, (not reported'm F.Supp.2d), (S.D. Tex. Jan. 22, 2010)("The stQt®~f limitations for a personal injury suit based on sexual assault is five years. 'i'rot. Civ. Prac. & Rem. Code § 16.0045. This five-year limitations ";£©Y period clearly a~ to the vicarious liability claims. The five-year limitations period may apply~~er claims as well, particularly the direct liability. claims that the defendants' negligence allowed the alleged abuse to occur. In interpreting section 16.0045, this court has previously concluded that 'the Texas Supreme Court would join the majority of state courts considering similar statutes and hold that the limitations period of Section 16.0045 applies to claims against nonperpetrators of sexual abuse as 18 well as to claims against alleged perpetrators.' Doe I v. Roman Catholic Diocese of Galveston-Houston, No. 05-1047, slip op. at 21 (S.D. Tex. Mar. 27, 2006)."); Doe v. Catholic Diocese of El Paso, 362 S.W.3d 707, 717 (Tex.App.- El Paso 2011, reh'g overruled, rule 53.7(f) motion granted)(" Ordinarily the two-year personal injury statute of limitations applies to negligence... See Tex. Civ. Prac. & Rem~de Ann. §§ -12~1@ plaintiff brings 16.003(a) ... However, a five-year statute oflimitations applies whe~1e suit for personal injury caused by sexual assault or aggravat~~al assault. See Tex. Prac. & Rem. Code Ann. § 16.0045(a)."); Mayzone v. ~onary Oblates of Mary Immaculate of Texas, No. 04-13-00275-CV, 2014 WL "~7249, at *3, (not reported in oilffF S.W.3d), (Tex.App.- San Antonio July 30, 2014-JY[~lor rev. filed)("When a plaintiff brings suit for personal injury caused by sexualJlll~~t or aggravated sexual assault, the 0~ five-year statute of limitations applies. (!'~ex. Civ. Prac. & Rem. Code Ann. § 16.0045(a) (West Supp.2014); Catholic&cese of El Paso, 362 S .W.3d at 717 (applying five-year statute of limitations to ~gence, breach of fiduciary duty, and intentional infliction of emotional distr~~aims arising from allegations of sexual abuse); Stephanie M. v. Coptic Or"~ox Patriarchate Diocese of the So. United States, 362 g~" S.W.3d 656, 659-60 (~App.-Houston [14th Dist.] 2011, pet. denied) (applying five- ~ year statute of li ions to negligence claim arising from allegations of sexual abuse)."). ~· © Ob~~' if the § 16.0045 limitations period is applied to the instant claims, which occurred in May, 2011, Defendants' limitations argument evaporates. And, justice demands no less. B. Limitation Has Been Tolled In the Instant Facts. 19 Even were this Court inclined, arguendo, to determine that the two (2) year limitation period set out in § 16.003(a) applied to the invasion of privacy claim, (which should not be the case where, as here, the taking of such photos was a part and parcel of Ms. Farmer's sexual assault), then the limitations period applicable thereto should commence to run as of February 27, 2012, the date Morris was arrest~nd the nude £,1/@J photos of Ms. Farmer were found by FBI agents on the flash drive~1is possession, or even thereafter, in May, 2012, when the FBI showed them t~~see Response Ex. I, 101:1-18, [she was shown the photos by the FBI, and incluQ~ctures of her nude taken in both her first assault and later during a New Orleans t& with Morris]). As mentioned ·~ supra, on February 22, 2013, Ms. Farmer met ~rthe FBI to give her statement, (M/MSJ Ex. D), and she confirmed to the FB-q t while she thought Morris took a ·~a picture of her nude, "he won't give me his ~' and then all of a sudden I can't find his phone or what he did with it," (33:13-1~"he was like, I swear, I swear, I swear I didn't take a picture of you. I swear I didn'~'e a picture of you," (33:20-23), "so he leaves the ~ room and I'm just totally disor~d ... he leaves and shuts the door and then he knocks like five seconds later and T~~n the door and he is like, look, look, I don't - he shows ~~ me his phone and he ~~' I don't have any pictures. So I take his phone ... if I was with it and not like so gf:F, I might have been able to find the picture ... and I just couldn't even figure out ~to, you know, work my way around that phone," (35:3-15). Virtually identically,Ser deposition, (Response Ex. I), Ms. Farmer confirmed, "And, so I was like, popped up, and I was like, 'What are you doing? Are you - did you just take a picture of me?' And, he was like, 'What? No, no,'" (82:9-12), "And I was so disoriented and so confused... He was like, 'No, no, no. It's fine. It's fine. I didn't take a picture. I 6 As with depositions, citations are by page and line(s). 20 didn't take a picture,' " (82:16-23), "And so then he, he walks out of the room ... And then he knocks, and he's like, 'See, look, I don't have any pictures of you,'" (83:8-11), "I can't like even really figure out how to work the phone. Like I think I was trying to look through the pictures, but I like couldn't think to figure out how to get to where I wanted to go,'' (83:13-17). Indeed, Morris steadfastly denied he had in any '~abused Ms. . ri!J'~ Farmer or any other of his four victims, until the entry of his Plea A~ent. Defendants proffer no facts which contradict either ~~~mer's abject mental confusion on the night of her molestation or her lack of ~l knowledge of what the pictures of her actually depicted until well after her viol~~n. Defendants contend "[Ms. o;J!Ir Farmer] confirmed with the FBI that the pictures fq~ in or around May 2012 were in fact her, but she had knowledge that the pictm;,e~ere ~~ taken at the time of the alleged incidents when they occurred in 2011," ~ her deposition, at pgs. 176 and 201. (M/MSJ, pg. s-6). Respectfully, tha&flatly untrue. As noted, Ms. Framer was completely disoriented at the tim~44ier violation. And, in her deposition, at pg. 176, she made clear that it was not ~~May, 2012, after the pictures had been found, that "I confirmed the pictures wer~~," (176:21). And, Defendants' proffered quote from her co~·"'" deposition, at pg. 2o~Cij\at Ms. Farmer had knowledge of the photos is a blatant misstatement of w~<¥he said. She confirmed she had merely a belief that Morris had taken photos, #uer he repeatedly, vehemently denied. Indeed, Ms. Farmer made clear that s~t saw the photos only after the FBNI seized them, (101:1-9). InS. V. v. R. V., 933 S.W.2d 1, 6 (Tex. 1996), the Texas Supreme Court made clear that: "Accrual of a cause of action is deferred in two types of cases. In one type, those involving allegations of fraud or fraudulent concealment, accrual is deferred because a person cannot be permitted to avoid liability for his 21 actions by deceitfully concealing wrongdoing until limitations has run ... Restated, the general principle is this: accrual of a cause of action is deferred in cases... in which the wrongdoing is fraudulently concealed... (Emphasis added)." Id., at 6. And, very recently, the Court reiterated that: "We have long held that "fraud prevents the running of the statute of li~tions until it is discovered, or by the exercise of reasonable diligence might .e.~r@ ha~)Jeen discovered." Ruebeclc v. Hunt, 142 Tex. 167,176 S.W.2d 738, 739 (1943). a:#Y··· 'a person cannot be permitted to avoid liability for his actions by deceitfull~ealing wrongdoing until limitations has run,' S.V. v. R.V., 933 S.W.2d 1, 6 (Te~996). Because 'fraud vitiates 0~ whatever it touches,' Borderlon v. Peck, 661 S.W.~o7, 909 (Tex.1983), limitations does not start to run until the fraud is discoveredSf the exercise of reasonable diligence 0~ would discover it, Marshall, 342 S.W.3~9. The same rule applies to claims of fraudulent inducement..." Hooks v. Sa~n Lone Star, Ltd. P'ship, No. 12-0920, 2015 WL 393380, at *3, _ S.W.3d _, (~Jan. 30, 2015). And, in Bertrand v. B~d, 449 S.W.3d 856 (Tex.App.- Dallas 2014, reh'g overruled Jan. 22, 2015), ~~alias CCA observed that: " 'Fraudulent concealment is based upon the doctrin~quitable estoppel ... [and] estops a defendant from relying ~ on the statute o~~ions as an affirmative defense to plaintiff's claim.' Borderlon v. Peele, 661 S.W.~'>l)07, 908 (Tex.1983). A party asserting fraudulent concealment or equitable e~el as an affirmative defense to the statute of limitations has the burden to raise it in a response to the summary judgment motion and to come forward with summary judgment evidence raising a fact issue on each of the elements of these defenses. KPMG Peat Marwick v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 749 (Tex.1999).' " Id., at 856. See also Ward v. Stanford, 443 S.W.3d 334, 351 22 (Tex.App.- Dallas 2014, reh'g overruled Oct. 3, 2014)("Fraudulent concealment is an affirmative defense to the statute of limitations. See KPMG Peat Marwick, g88 S.W.2d at 749. As a party asserting fraudulent concealment, appellant has the burden to raise it in response to the summary judgment motion and to come forward with summary judgment evidence raising a fact issue on each element of that defens~e id. A party _[!'}~_!@ asserting fraudulent concealment must establish an underlying ~g, and that 'the defendant actually knew the plaintiff was in fact wronged, ~&ncealed that fact to deceive the plaintiff.' BP Am. Prod. Co. v. Marshall, 3~~.3d 59, 67 (Tex. 2011) (quoting Earle v. Ratliff, 998 S.W.2d 882, 888 (Tex.,'i'>ng)). Fraudulent concealment. oiJ? only tolls the running of limitations until the fra~ discovered or could have been discovered with reasonable diligence. Id."). As&~foregoing 0~ factual recitations clearly confirm, Ms. Farmer has herein asserted~helmingly sufficient facts to justify the application of the fraudulent concealme&octrine to the instant limitations analysis. C. The Instant Motio~Dismiss Is Untimely. As this Court is well-aw~~e Texas Rules of Civil Procedure have not had, until relatively recently, a proco~l equivalent of the Fed. R. Civ. P. 12(b)(6) dismissal ~:r motion. Tex. R. Civ. P. ~' "Dismissal of Baseless Causes of Action," became effective ~ on March 1, 2013, ~over nine (g) months prior to the filing of this suit.7 Therefore, the reported c # w applying such is only now beginning to emerge. See Wooley v. ~~ 7 See GoDaddy.com, LLCv. Toups, 429 S.W.3d 752,754 (Tex.App.- Beaumont 2014, rev. den'd Nov. 21, 2014)("Before Rule 91a, Texas procedure did not have a counterpart to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Fort Bend Cnty. v. Wilson, 825 S.W.2d 251, 253 (Tex.App.- Houston [14th Dist.]1992, no writ). In 2011, this deficiency was remedied when the Legislature promulgated section 22.004(g) of the Texas Government Code, which provides that the 'supreme court shall adopt rules to provide for the dismissal of causes of action that have no basis in law or fact on motion and without evidence.' See Tex. Gov't Code Ann. § 22.004(g) (West 2013).''). 23 Schaffer, 447 S.W.3d 71, 74 (Tex.App.- Houston [14th Dist.] 2014, reh'g overruled Oct. 9, 2014)("We must decide as a matter of first impression in this court what standard of review to apply to a trial court's ruling on a motion to dismiss under Rule 91a."); City of Austin v. Liberty Mut. Ins., 431 S.W.3d 817 (Tex.App.- Austin 2014, no pet.); GoDaddy.com, LLC v. Toups, 429 S.W.3d at 754. According to the spe~ language of Rule 91a.3(a), the emerging case law applying it and the federal p~ R~2(b)(6) decisions . h Texas courts h ave d eemed reIevant wh1c . ~ .~ mstant . an d "'mstruct!Ve,,~~e . Motwn ' to ·~ Dismiss is not timely and must be denied on that basis.~natively, limitations has , <(Jv been evasively asserted in this case and in fact and in I~~ Ms. Farmer had five years to oiJ!f bring her instant claims, not two years, as Defenda!J~aim. Further, alternatively, Ms. Farmer's claims are timely under applicable~ng ~~di rules of Texas case law, even assuming the provisions of Civ. Prac. & R~ode § 16.003(a) apply, which is not the case, as discussed at length infra. ~- In GoDaddy.com, LLC, the 1c~A specifically held that: "Rule 12(b)(6) allows ~r:J;<0 dismissal if a plaintiff fails \~~~)ate a claim upon which relief can be granted[.] ... dismissal is appropriate ;,~ court determines beyond doubt that the plaintiff can ~·~ prove no set of facts t~~ort a claim that would entitle him to relief. Scanlan v. Tex. A & M Univ., 343 F.~3, 536 (5th Cir.2003). Just as a motion to dismiss for failure to state a claim un~kule 12(b)(6) is a proper vehicle to assert a claim of immunity under the federal~~, a motion to dismiss· under Rule 91a is a proper vehicle to assert an affirmative defense of immunity... " I d., at 754-55. Thus, by reasonable extension a Rule 91a motion is equally the proper vehicle to assert a limitations defense. Similarly, in Wooley, 447 S.W.3d at 75-76, the Houston 14th CCA explained: 24 "Although we aclmowledge that Rule 91a motions to dismiss are unique, we find them to be analogous to pleas to the jurisdiction, which require a court to determine whether the pleader has alleged facts demonstrating jurisdiction. See Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex.2004). In that context, we construe the pleadings liberally in favor of the plaintiff, look to the pleader's intent, and accept as true the factual allegations in the pleadings to determine if the pleader has alleged facts that affirmatively demonstrate the trial court's ju~i diction over a claim. I d. at 226. Even though we are construing the jur' · ional facts alleged in the petition, whether a pleader has aile~~ ts that demonstrate jurisdiction is a question of law that we revie novo. I d. This determination is consistent with the requirement in ~!r 91a to take the allegations, together with any reasonable inferences ~~rue." See Tex. R. Civ. P. 91a.1... ~ 0~ Federal courts also apply a de novo standard of ~w to a trial court's ruling on a motion to dismiss under Federa!rl;ule of Civil Procedure 0 12(b)(6). In re Katrina Canal Breaches Litip· ~95 F.3d 191, 205 Csth Cir.2007). Rule 91a has unique language~!· 'ng dismissal of causes of action with no basis in law or fact. Tex. 1 • P. 91a. However, Federal Rule of Civil Procedure 12(b)(6) simi\~/&; !lows dismissal if a plaintiff fails 'to state a claim upon which relief~ be granted"; therefore, we find case law interpreting Rule 12(b)(6)~ructive. Fed. R. Civ. P. 12(b)(6); see also GoDaddy, 429 S.W.3d at~W..'' Wooley, at 75-76. ,.!{@«:J Thus, federal decisions ad~ing a defendant's assertion of a limitation defense, as Defendants do here, are v~Qstructive." In Whiddon v. Chase Home Fin., LLC, 666 F. Supp. 2d 681, 686 (E.D~. 2009), the court said: "Generally, th~9urt may not look beyond the four corners of .the plaintiff's pi ngs. See Indest v. Freeman Decorating, Inc., 164 F.3d 258, 261 ,£ir.1999); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir.1996); McCar ~v. First City Bank, 970 F.2d 45, 47 Csth Cir.1992). Furthe re, 'a complaint that shows relief to be barred by an a.ffi tive defense, such as the statute of limitations, may be dismissed for failure to state a cause of action.' Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir.1982), cert. denied, 459 U.S. 1105 (1983); accord La Porte Constr. Co. v. Bayshore Nat'l Bank of La Porte, 805 F.2d 1254, 1255 Csth Cir.1986). Thus, a plaintiffs noncompliance with the applicable statute of limitations' "may support dismissal under Rule 12(b)(6) where it is evident from the plaintiffs pleadings that the action is barred and the pleadings fail to raise some basis for tolling or 25 the like." ' Davis v. Dallas County, 541 F.Supp.2d 844, 856 (N.D.Tex.2oo8) (quoting Jones v. Alcoa, Inc., 339 F.3d 359, 366 (5th Cir.2003), cert. denied, 540 U.S. 1161(2004)); see Nationwide Bi-Weekly Admin., Inc. v. Belo Corp., 512 F.3d 137, 141 (5th Cir.2007); Taylor v. Books A Million, Inc., 296 F.3d 376, 378-79 (5th Cir.2002), cert. denied, 537 u.s. 1200 (2003). ' "A motion to dismiss under rule 12(b)(6) 'is viewe~ with disfavor and is rarely granted.' " ' Gregson v. Zurich Amp. Co., 322 F.3d 883, 885 (5th Cir.2003) (quoting Collins, 224 =~~rat 498 (quoting Kaiser Aluminum & Chern. Sales, Inc., 677 F.2d at~)); accord Harrington v. State Farm Fire & Cas. Co., 563 F.3~41, 147 (5th Cir.2009); Lormand v. U.S. Unwired, Inc., 565 F. ~28, 232 (5th Cir.2009). ' "The question therefore is whether e light most favorable to the plaintiff and with every d resolved in his behalf, the complaint states any valid clai r relief." ' Collins, 224 F.3d at 498 (quoting sA Charles A. Wright &~thur R. Miller, supra, § 1357, at 332-36); accord Lowrey v. Tex~s ~M Univ. Sys., 117 F.3d 242, 247 (5th Cir.1997). 'In other words, a nto dismiss an action for failure to state a claim "admits the fact@' eged in the complaint, but challenges plaintiffs rights t.o relief ba~,~upon those facts." 'Ramming, 281 F.3d at 161-62 (quoting Tel-Phon~rvs., Inc. v. TBS Int'l, Inc., 975 F.2d 1134, 1137 (5th Cir.1992))." ~ Whiddon, at 686. Based upon the com~d logic of this collective authority, two issues are presented. First, have Defenda~aived limitations by failing to timely assert it, by means of a Rule 91a.3(a) moti#econd, even if not, can Ms. Farmer assert a tolling exception to § 16.003(a)? ~"\ the answer to both questions is emphatically Yes, the instant Motion to Dism~~ould be denied. ~ Prior to the ~~tive date of Rule 91a, (March 1, 2013), Defendants could have asserted a limi#ns affirmative defense much like they have attempted here. But, under the ~~c terms of Rule 91a.3(a), they were procedurally obligated to do so in conformity therewith. s Factually, such an oversight seems particularly significant because, since this entire series of appalling events came to light, Morris has steadfastly 8See Rule 91a.3(a)(motion to dismiss must be filed within "6o days" of movant's service with pleading containing allegedly baseless action). 26 denied every allegation asserted against him. Instead, Defendants now move for dismissal ostensibly pursuant to two-year limitations period set out in Civ. Prac. & Rem. Code § 16.003(a).9 Such statute does mandate that tort claims based upon "personal injury" must be brought "not later than two years after the day the cause of action accrues." Id. AB "personal injury" and "accrues" are not defined in t~atute, Texas ~@ courts have supplemented it by common law. However, Ms. Farme~'hstant claims are not time-barred, under the doctrines of equitable estopp~~/or the fraudulent concealment doctrine, as will be discussed at length infra.J;fly, while the Defendants' having pled limitations in their Answer may have preserill.A it as an asserted affirmative 0~ defense, 10 subject to tolling as hereinafter discusse~ey waived the right to move to dismiss this case on the basis thereof, pursuantAo~ule 91a.3(a) and the foregoing cases 0~ applying such. Consequently, the instaU~tion to Dismiss should be denied as untimely. ~ D. The TCI-IRA l-Ias No A-~cation in the Instant Facts. ~n 9 Once again, such a position ~~einferred, however, as the statute is oddly never once mentioned in the M/MSJ. Ins~~~ Defendants only cite case law, (M/MSJ, pg. 9), which discuss and apply such. ~ 10See Storck v. Tres La Qop. Owners Ass'n, Inc., 442 S.W.3d 730, 743 (Tex.App.- Texarkana 2014, reh'g overruled0 ( • 16, 2014), reconsideration en bane den'd (Oct. 7, 2014)("Rule 94 of the Texas Rules of Procedure requires a party to plead affirmatively those affirmative defenses listed i rule 'and any other matter constituting an avoidance or affirmative defense.' Tex. R. . P. 94· ' "If an affirmative defense is not pleaded or tried by consent, it is waived," and 1al court has no authority to make a fact finding on that issue.' See Compass Bank v. M n. Servs., Inc., 152 S.W.3d 844, 851 (Tex.App.- Dallas 2005, pet. denied) (quoting REI of Tex., Inc. v. Katar Corp., 961 S.W.2d 324, 327-28 (Tex.App.- Houston [1st Dist.] 1997, pet. denied)); Matter of Marriage of Collins, 870 S.W.2d 682, 685 (Tex.App.- Amarillo 1994, writ denied). 'The party asserting the affirmative defense bears the burden of pleading and proving its elements.' Compass Bank, 152 S.W.3d at 851 (citing Welch v. Hrabar, no S.W.3d 601, 6o6 (Tex.App.-Houston [14th Dist.]2003, pet. denied)).''). 27 Defendants' attempt to invoke the provision of the TCHRA as a purported preemptive bar to Ms. Farmer's claims is a complete red herring. In the companion case of Hill, et al v. Morris, et al, Defendants trotted out the exact same strategy, (Response Ex. C), and Hon. Jeff Shadwick unequivocally rejected it, (Response *E). The Hill plaintiffs' pleading setting out a thorough response thereto, (Respon~. D, 83 pages), . attachdh 1s e ereto and.mcorporate dherem, . so a more succmct . u . r~onse 1s appropnate . ¢~ here. ~ o~dJ . The TCHRA is found in Chapter 21 of the Texas La~ Code; and, indeed, its very ~ placement there denotes the Legislature's intent~that it apply to workplace situations, not non-work related intentional tort~~eeping with such, § 21.051 of that Chapter addresses workplace discrimination pprovides, in relevant part: ~ "An employer commits an unla~lJemployment practice if because of race, color, disability, religion, se&ational origin, or age the employer: (1) fails or refuses to hire .:.~ndividual, discharges an individual, or discriminates in a"'~h~r manner against an individual in connection with ~pensation or the terms, conditions, or privileges of e~~Oy'ment; or (2) limits,se}for~s, or classifies an employee or applicant for employmet_U:i)in a manner that would deprive or tend to deprive an in~}jb~al of any employment opportunity or adversely affect in any~'tter manner the status of an employee." Tex. Labor Cod~.§ 21.051 (Vernon). Basically, as a matter of both legislative intent and the v~rding the Legislature employed in the statute, both this sub-section specifically and Chapter 21 generally were designed to apply the anti-discrimination tenants of the federal Title VII to Texas workplaces. (See Tex. Labor Code§ 21.001). But, it is critical to note that Chapter 21 applies to actions in the workplace which implicate 28 the conditions of employment. In Nagel Mfg. & Supply Co. v. Ulloa, S12 S.W.2d 7S, So (Tex.App.-Austin 1991, writ denied), the CCA explained: "Sexual harassment, as the court defined it for the jury, 'means to engage in unwelcome sexual advances, requests for sexual favors, sexually abusive or vulgar language, or other verbal, visual or physical conduct,' if compliance is made a condition of employment or used as a basis for an employment decision or if such conduct ill'*feres with worlc performance or creates an intimidating~~tile or offensive working environment. (Emphasis added)." (Jl Ulloa, at So. See also Wal-Mart Stores, Inc. v. Itz, 21 S.W.3d ~o (Tex.App.- Austin 2000, reh'g overruled, rev. denied)("Under Title VII and~exas Human Rights Act, an employer may be held vicariously liable for quid-p~uo sexual harassment by its ~ supervisor. See Burlington Indus., Inc. v. Ellerth, ~U.S. 742, 753 (199S); Ewald v. Warnick Family Foods Corp., 87S S.W.2d 65~, ~(Tex.App.-Corpus Christi 1994, writ denied). The elements of the cause of acti?tlas follows: (1) A supervisor (2) because of sex (3) subjects an employee to (4)~;elcome conduct that (5) affects a tangible aspect of the employment relatio~~· See Ellerth, 524 U.S. at 752-54; Meritor Sav. Bank, FSB v. Vinson, 477 U~~7, 64-67 (1986); Ewald, S7S S.W.2d at 659. An employer's liability in such"~ derives from the law of agency. Because discriminatory o~"" conduct ordinarily lies ~ide the agent's scope of authority, for a principal to be held ~- liable it must be sh~that the agency relationship aided the supervisor in committing the discriminat#ct. See Burlington Indus., 524 U.S. at 759-60."). In 4e House, Inc. v. Williams, 313 S.W.3d 796, 802-03 (Tex. 2010), the Supreme Court addressed a claim arising out of an unconsented, inappropriate workplace touching. In holding the TCHRA applicable to such claim, the Court determined: "Today's question is whether employer liability for unwanted sexual touching by a coworker (simple assault under Texas law given its 'offensive or 29 provocative' nature) is limited to a tailored TCHRA scheme that specifically covers employer liability for sexual harassment. We think the answer should be yes." Id., at 802-03. That is manifestly distinguishable from the instant facts. Morris didn't abuse Ms. Farmer to "affect a tangible aspect of the employment relationship," a key element of a TCHRA claim, he drugged her unconscious to sexually molest her~ ~..,~ photograph her nude for his own deviant gratification, just as he has confessed i~eral court. Also, because Title VII and the TCHRA are desig#o achieve identical purposes, federal court decisions with regard to the form~~ instructive as to claims under the latter. See Prairie View A & M Univ. v. Chnfttn, 381 S.W.3d 500, 504 (Tex. o~r 2012), reh'g denied (Nov. 16, 2012)("The TCH~as 'enacted to address the specific evil of discrimination and retali~n in the workplace,' as well as ~~d) to coordinate and conform wi~ederal anti-discrimination and retaliation laws under Title VII. ~ty of Waco v. Lopez, 259 S.W.3d 147, 153- 55 (Tex.2oo8). (Emphasis added)."~~ That the TCHRA has no~tcation here is manifestly evident from the M/MSJ, pg. 10, and cases cited at ~ Defendants cannot and do not point to a single "term, condition, or privilege ~~e plaintiffs employment" affected by "harassment." (Id.). ~ And, their misc-~~ization of her claims as based solely upon "unwelcome sexual harassment," (~- pg. 10, n. 46), would be laughable, were it not so offensive. Defendant~~ Padilla v. Flying J, Inc., 118 S.W.3d 911 (Tex.App.- Dallas 2003, no pet.), in support of the TCHRA's application. Yet, in that case, the CCA held: "The legislature enacted the Texas Commission on Human Rights Act to correlate state law with federal law in the area of employment discrimination. See Tex. Lab. Code Ann. § 21.051 (Vernon 1996); Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 485 30 (Tex.1991). TCHRA prohibits an employer from discriminating against an individual with respect to compensation, or the terms, conditions, or privileges of employment because ofrace, color, disability, religion, sex, and national origin. Tex. Lab. Code Ann. § 21.051 (Vernon 1996); Williams v. Vought, 68 S.W.3d 102, 107 (Tex.App.- Dallas 2001, no pet.). To establish a claim for sexual harassment, a plaintiff mu~rove (1) she ~!!@ belongs to a protected group; (2) she was subjected to unwelcom~fassment; (3) the ~ harassment was based on sex; and (4) the harassm~Uaffected a term, condition, or privilege of her employment. Gulf S~Toyota, Inc. v. Morgan, 89 S.W.3d 766, 770 (Tex.App.- Houston [1st Dist.] 2oo~no pet.). (Emphasis added)." o;;J[J" I d., at 914-15. There, the entirety of the plaintiffs c~aint was offensive comments by her boss to her at work. Neither of Ms. Farmer~ ?~ claims in this case have anything whatever to do with employment decisi~~ conditions of employment. They have exclusively to do with a confessed pre-~itated, intentional sexual assault committed well outside the workplace, in fact i~=?emote state. Similarly Defendants cite Willborn v. Formosa Plastics Corp. Of Texas, No. 13- 04-007-CV, 2005 WL 1797022, at *7 (unreported) (Tex.App.- Corpus Christi-Edinburg ~' July 28, 2005, reh'g anUh'g en bane den'd, rev. den' d), (Id., pg. 10, n. 46), although ~ frankly Defendants~illiot make clear why. There, the CCA considered a Title VII claim and noted: "W~n includes a claim for sexual harassment, which is one form of prohibited ~oyment discrimination. Hoffmann-La Roche, Inc. v. Zeltwanger, 144 S.W.3d 438, 445 (Tex.2004); see also Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986); Ewald v. Warnick Family Foods, Corp., 878 S.W.2d 653, 658 (Tex.App.- Corpus Christi 1994, writ denied)... Courts have traditionally defined 'unwelcome sexual harassment' as 'sexual advances, requests for sexual favors, and other verbal or physical 31 conduct of a sexual nature that is unwelcome in the sense that it is unsolicited or unincited and is undesirable or offensive to the employee.' Wyerick v. Bayou Steel Corp., 887 F.2d 1271, 1274 (5th Cir.1g8g).'' Id., at *7. Respectfully, so what?! Do Defendants seriously suggest that what Morris did was no more than an "unwelcome advance"? If so, it seems very strange that in the feder~iminal case ~I@ against him, he confessed to a sexual abuse crime. The Defendan~nt the TCHRA to apply because it is yet another effort to derail this case ~ upon a contrived ~ limitations theory. However, the relegation of the sexQ~lestation of a drugged, insensate woman to a mere employment grievance~nnot possibly be what the o!ff!r Legislature had in mind in enacting the TCHRA, ~ is emphasized by the statute's very name: the Texas Commission on Huma .· ~hts Act! And, Defendants do not, o~f because they cannot, direct the Court to ~ngle word in that statute, its legislative history or any decision applying it, ~h mandates or permits such a cruel and inhuman result. IJ:jl@ In a substantial footnot~~xas Mut. Ins. Co. v. Ruttiger, 381 S.W.3d 430, 461, n.3 (Tex. 2012), reh'g dep.~(Sept. 21, 2012), the Supreme Court expressed some r§!" serious policy conside~ns which bear directly upon the validity of Ms. Farmer's .~ instant tort claims:QY "We hav~eatedly addressed situations in which common law claims and ~o~ remedies seem to overlap, and we have embraced a fra~rk to guide our analysis in such cases. The touchstone of this analysis, as in all statutory interpretation, is legislative intent. We start with the proposition that statutes abrogating common law causes of action are disfavored. Cash Am. Int'l Inc. v. Bennett, 35 S.W.3d 12, 16 (Tex.2ooo). A statute banishing a common law right ' "will not be extended beyond its plain meaning or applied to cases not clearly within its purview." 'Id. (quoting Satterfield v. Satterfield, 448 S.W.2d 456, 459 (Tex.1969)). Abrogation by implication is disfavored. Id. For that reason, courts must 32 examine whether the statute's language 'indicate[s] clearly or plainly that the Legislature intended to replace' a common law claim with an exclusive statutory remedy, and we 'decline [] to construe statutes to deprive citizens of common-law rights unless the Legislature clearly expressed that intent.'3 Id. 3 We have applied this framework repeatedly. For example, in Lopez, which the Court cites but then seems to forget about we noted that "[w]hether a regulatory scheme is an exclus#'ve r dy depends on whether 'the Legislature intended for the r ~ tory process to be the exclusive means for remedying the em to which the regulation is addressed.' " City of Waco v.'>;!kopez, 259 S.W.3d 147, 153 (Tex.2oo8) (quoting In re Sw. Be_~,jpl. Co., 235 S.W.3d 619, 624-25 (Tex.2007)) (emphasis adde~ Likewise, in Wa.tfle House, Inc. v. Williams, 313 S.W.3d 79~2 (Tex.2010), we held that 'the legislative creation of a stat~y remedy is not presumed to displace common-law remid'~ To the contrary, abrogation of common-law claims is disC t51ied.' Acknowledging the centrality of legislative intent, see id. 09 n. 66, we looked at the statute's 'meticulous legislative desili;fi\ id. at 805. Similarly, we have held that 'absent clear legislatbeYntent we have declined to construe statutes to deprive citizen ~ mmon-law rights.' Dealers Elec. Supply Co. v. Scoggins . Co., 292 S.W.3d 650, 66o (Tex.2009) (emphasis added)~ have also written that 'statutes can modify common law rulefB ut before we construe one to do so, we must look carefully to /;!,~ ure that was what the Legislature intended.' Energy Serv. qef{,!Jbj Bowie v. Superior Snubbing Servs., Inc., 236 S.W.3d 19~~4 (Tex.2007) (emphasis [in original] (Emphasis added).'' Q Ruttiger, at 461, n.3. <~ cg'% And, in Perez v.!{jjJJing Centers-Devcon, Inc., 963 S.W.2d 870, 872 (Tex.App.- ~ San Antonio 1998,i!l>~ denied), the CCA made clear that: "The TCHRA prohibits employment ~crimination on the basis of 'race, color, disability, religion, ~~national origin, or age.' Tex. Lab. Code Ann. § 21.052 (Vernon 1996). The act essentially codified federal employment law. Compare 42 U.S.C. § 20ooe (1994) (prohibiting employment discrimination on the basis of race, color, religion, sex or national origin), § 12101-213 (1994) (prohibiting employment discrimination on basis of disability) and 29 U.S.C. §§ 621-34 (1994) (prohibiting 33 employment discrimination on basis of age), with Tex. Lab. Code Ann.§ 21.052 (Vernon 1996) (prohibiting same conduct)." Id., at 872. Then, in Jackson v. Creditwatch, Inc., 84 S.W.3d 397, 402 (Tex. App.- Fort Worth 2002) rev'd in part, (on unrelated grounds) 157 S.W.3d 814 (Tex. 2005), the CCA noted that: "The Perez court examined the legislative history and legislative intent behind the ena~ent of the TCHRA and concluded: "Notably, neither an intent to se~ps an exclusive _ _p~ remedy, nor an intent to preclude common law 'CG~es of action, is ~"'- contained within the stated purposes of the TCJiliA. Additionally, the . Qv statute contains no provision that implies th'ifu,TCHRA's administrative ¢~v review system precludes a lawsuit for cwc::hon law causes of action. Instead, the opposite proposition canc-'fi:j implied from section 21.211. 0~ (Emphasis added)." Id., at 402. Therefore~ again, there is nothing in the TCHRA's "meticulous legislative design" which p~rts to justify Defendants' tortured reading of it merely to argue insulation from ~lity from utterly appalling misconduct. Indeed, ~ their very argument of such 0~ slap in the face of every mother, wife, sister and daughter in the State of Te~~ Ms. Farmer was ~~arassed or discriminated against. She was sexually violated, w physically abused ~ emotionally humiliated. This case is. not about the legitimate work-related gr~ces of being patted on the fanny or having a breast brushed against in the w4ce, or being made to suffer annoying workplace humor directed disparagingly at women, or not getting a raise or promotion because of a gender-based glass ceiling. Rather it is about truly vile and criminally confessed sexual abuse degradation. The Defendants should be held legally and morally accountable in a public trial before a jury of the Parties' peers for their reprehensible conduct. 34 E. Defendants Completely Fail to Meet the Traditional Summary Judgment Standard. The basis upon which Defendants seek summary judgment on each of Ms. Farmer's claims is solely Civ. Prac. & Rem. Code § 16.003(a)'s two (2) year limitation period. For the reasons discussed at length supra, the MSJ should fa~Respectfully, while Defendants are correct that summary disposition may be soug~rsuant to Tex. R. Civ. P. 166a, in their pursuit thereof here that's all they are cor~Yabout. Defendants 6~ cite Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2~, as the authority upon o{P which they seek summary judgment, (M/MSJ, pg. 13, n.~, but fail to consider what ~ the Supreme Court therein said: "To prevail o~,~aditional summary-judgment motion, a movant must show that no genuine is~Wr material fact exists and that it is entitled to judgment as a matter of law. ~ R. Civ. P. 166a(c). A movant who ~ conclusively negates at least one essen~tiJllement of a cause of action is entitled to summary judgment on that claim.~ff:ftt-Williams Co. v. Diaz, 9 S.W.3d 801, 803 (Tex.1999). When reviewing a su~ry judgment, we take as true all evidence favorable to the nonmovant, and we in~ every reasonable inference and resolve any doubts in the nonmovant's favorU!@J~ce Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997); Friendsw?llid Dev. Co. v. McDade & Co., 926 S.W.2d 280, 282 (Tex.1996)." o;{,({Ji" Id., at 215. See ~HS Cedars Treatment Ctr. of DeSoto, Texas, Inc. v. Mason, 143 S.W.3d 79~(Tex. 2004)(same); M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23-24 (Tex. 2000)("Under Texas summary judgment law, the party moving for summary judgment carries the burden of establishing iliat no material fact issue exists and iliat it is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166 a(c); Rh6ne-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222 (Tex.1999); Worniclc Co. v. 35 Casas, 856 S.W.2d 732, 733 (Tex.1993) ... When reviewing a motion for summary judgment, the court takes the nonmovant's evidence as true, indulges every reasonable inference in favor of the nonmovant, and resolves all doubts in favor of the nonmovant. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985)."). As the CCA noted in Schrank v. Laerdal Med. Corp., 440 S.W.3d 250, 256 ~.App.- Waco ,;=>'!.{@ 2013, rev. den'd Feb. 14, 2014), "The function of a summary judg~t "'0. is to eliminate patently unmeritorious claims and untenable defenses, not ~~rive litigants of the right to a trial by jury. Tex. Dep't of Parks & Wildlife v. ~da, 133 S.W.3d 217, 228 (Tex.2004)." Id., at 256. Here, the Defendants have nifu,;ted nothing, much less any ·~ prima facie elements of Ms. Farmer's claims. rJ/.!!!' At most, what Defendants have demons,~d to the Court that the Defendants ·~ and Ms. Farmer will present at trial starlddrent aspects of the facts surrounding her sexual abuse. Conflicting evidence giv~rise to genuine issue(s) of fact, Randall v. Dallas Power & Light Co., 752 S~d 4, 5 (per curiam); and, so does ambiguous ~ evidence, Parker v. Yen, 823 S~d 359, 365 (Tex.App.- Dallas 1991, no writ). See also Ellert v. Lutz, 930 S.W.=?~2, 155 (Tex.App.- Dallas 1996, no writ); Frazin v. rg~ Grunning, 05-01-0049~, 2002 WL 84457, *1 (Tex.App.- Dallas Jan. 23, 2002, pet. ~ denied). "[I]n sum~ judgment proceedings, courts are not to weigh the evidence or determine its c&~ility. It is the court's duty to determine if there are any fact issues to be tried. ~kian v. Penn, 151 Tex. 412, 252 S.W.2d 929." White v. Cooper, 415 S.W.2d 246, 250 (Tex. Civ. App.- Amarillo 1967, no writ). And, "summary judgment is to be applied with caution and should not be granted where there is doubt as to the facts." In rePrice's Estate, 375 S.W.2d 900, 904 (Tex.Sup.1964)(superseded on other grounds in Stiles v. Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex. 1993)); Kiser v. Lemco 36 Indus., Inc., 536 S.W.2d 585, 590 (Tex. Civ. App.- Amarillo 1976, no writ). Further, in Dan Lawson & Associates v. Miller, 742 S.W.2d 528, 530 (Tex.App.- Fort Worth 1987, no writ), the court held that: "Summary judgment should never be granted when the issues are inherently those for a jury or trial judge, as in cases involving intent, reliance, reasonable care, uncertainty and the like. Kolb v. Texas Emp. Ins. A~ 585 S.W.2d ~@ 870, 873 (Tex.Civ.App.- Texarkana 1979, writ refd n.r.e.)." Id., at 5~ Oddly, Defendants cite the federal decisions, Celotex ~v. Catrett, 477 U.S. 317, 323 (1986), and Little v. Liquid Air Corp., 37 F.3d ~ 1075 (5th Cir. 1994), in support of their MSJ, (Id., pg. 13, n. 58). Inasmuch as th~ cases address Fed. R. Civ. P. 0~ 56, they are wholly inapplicable to the instant anal~ Indeed, in Casso v. Brand, 776 S.W.2d 551, 555-56 (Tex. 1989), the Texas SJW~ Court made it explicitly clear that Texas courts are guided by different stand~together from those which bind federal courts regarding the analysis of summa~-;;e disposition: "Summary judgmentt;~ieral courts are based on dlfferent assumptions, with erent purposes, than summary judgments in Texaf1_~ 1 the federal system, '[s]ummary judgment procedure is properly Regarded not as a disfavored procedural shortcut, but rather as an int part of the Federal Rules as a whole, which are designed "to sec e just, speedy and inexpensive determination of every action." Fe ule Civ. Proc. 1.' Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986)... '~ o~(Jr Texas l r;Jf;f course, is different. While the language of our rule is interpretation of that language is not. We use summary u«iifts merely 'to eliminate patently unmeritorious claims an tenable defenses,' City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 n. 5 (Tex.1979), and we never shift the burden of proof to the non-movant unless and until the movant has 'establish[ed] his entitlement to a summary judgment on the issues expressly presented to the trial court by conclusively proving all essential elements of his cause of action or defense as a matter of law.' Id. at 678. (Emphasis added)." 37 Casso, at 555-56. And, Casso remains the rule in Texas, regarding summary judgment consideration.ll In Walton v. Phillips Petroleum Co., 65 S.W.3d 262, 271 (Tex.App.- El Paso 2001, 38 assault: "The elements for civil assault mirror those required for criminal assault. See Johnson v. Davis, 178 S.W.3d 230, 240 (Tex.App.-Houston [14th Dist.] 2005, pet. denied). A person commits an assault if he intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative. See Tex. Pen. Code~ 22.01(a)(3) (Vernon Supp.2007)." Id., at 436. In Umana, the assault ;P~ allege~as a supervisor's snatching an apron string from an employee's neck, an incide~~ing no more than "a few seconds," (Id.). Here, as discussed at length supra, fa~e egregious conduct was involved. In Ms. Farmer's Original Petition, (Response -~ A), she made very clear that 0{/p- her assault claim was based upon Morris' intentionq)_~gging of her for the specific and illicit purpose of sexually molesting her and taki~nauthorized nude photos of her, all ~~J of which he has confessed! (See Response~. Thus, to attempt to recharacterize her claim as analogous to that involved in U~;;a is, respectfully, wholly without merit. In the same way, Defendant~ation of Polly v. Houston Lighting & Power Co., ~ 803 F. Supp. 1, 7 (S.D. Tex. ~), (Id., at pg. 13, n. 59), is inapposite. That federal decision dealt with a Title -~' claim and abusive physical contact on the job. It has ©~'I) nothing to do with(j\1s. Farmer's sexual molestation while drugged into ~ unconsciousness. ~larly, Defendants cite Fisher v. Westmont Hospitality, 935 ~if;)) S.W.2d 222, 2~ex.App.- Houston [14'11 Dist.] 1996, no pet.), (Id., pg. 13, n. 6o), which is e~ irrelevant as there the plaintiff asserted a straightforward premises liability slip-and-fall claim. Likewise, Brothers v. Gilbert, 950 S.W.2d 213 (Tex.App.- Eastland 1997, reh'g overruled, rev. den'd), (cited at Id., pg. 14, n. 61), considered a workplace sexual harassment case, in whicll the court specifically noted: "There is no competent evidence offraudulent concealment..." Id., at 216. That determination readily 39 distinguishes the case from the instant analysis. Finally, Marburger v. Jackson, 513 S.W.2d 652, 654 (Tex. Civ. App. 1974, writ refused n.r.e.), (cited Id., pg. 14, n. 61), dealt with a physical assault arising out of a workplace-related scuffle. Defendants attempt the same self-serving recharacterization of Ms. Farmer's invasion of privacy claim. Defendants contend Ms. Farmer was aw~of the nude photos of her on the night they were taken, citing a mere R,rfl/! her deposition snip~ testimony, (M/MSJ, pg. 15, n. 70 and 71). First, that's a mani~actual distortion, as ~ already explained in detail, supra at pgs. 19-21. Second, ~eady explained in detail supra, this claim should be controlled by Civ. Prac. & R~. Code § 16.0045(a)(1)'s five . o~"" (5) year limitation period. Alternatively, the limi~n period was tolled under the doctrine of fraudulent concealment, since Mor~ent to absurd lengths to lie to Ms. O~,J! Farmer about taking the photos, and she ~o actual knowledge of their existence or what they depicted until May, 2012, w~Ms. Farmer actually learned about both from the FBI. In that regard, it is mos~~s that Defendants cite Bell v. Philadelphia Int'l Records, 981 F. Supp. 2d 621,~ (S.D. Tex. 2013), (M/MSJ pgs. 14-15, n. 68). While the Bell court did state that •~laintiffs allegations that a record label misappropriated ©~{P his name, image and lil~ss for gain was a claim based on invasion of privacy and that ~ since he failed to ~nt evidence or argument as to when the claim arose, but the apparent event#urred "long ago", the claim was time-barred, (Id.); the court also said: "Clo~'1!lated to the discovery rule is the doctrine of fraudulent concealment. Unlike the discovery rule, fraudulent concealment is an equitable doctrine that is fact- specific. Shell Oil Co. v. Ross, 356 S.W.3d 924, 927 (Tex.2011). To invoke this exception, Bell must show that the defendants 'actually knew a wrong occurred, had a fixed purpose to conceal the wrong, and did conceal the wrong.' Id. Even then, '[f]raudulent 40 concealment only tolls the statute of limitations until "the fraud is discovered, or could have been discovered with reasonable diligence." 'Id. (quoting B.P. Am. Prod. Co. v. Marshall, 342 S.W.3d 59, 67 (Tex.2011))." Thus, Bell supports the timeliness of Ms. Farmer's invasion of privacy claim, even were the Court to decide it was not part and parcel of her sexual abuse. She learned of the photos and what they slo~d only after . ;Fv the FBI seized them from Morris and showed them to her in May~2. This suit was filed on December 13, 2013, (Response Ex. A), nineteen (19) u:#thereafter. In summary, when all of the facts of this case are ~ered, it becomes crystal clear that Defendants have completely failed to state ~,~per basis for Tex. R. Civ. P. 0~ 166a(c) summary judgment, as a matter of both fact~ law. CONCLU~{B~ For each and all of the foregoing r~s, Ms. Farmer respectfully requests this Court to deny Defendants' M/MSJ in ev~ particular. Ms. Farmer has stated completely viable tort claims for sexual assaul~d invasion of privacy integrally related thereto. ~ Her claims are timely pursua~Civ. Prac. & Rem. Code § 16.0045(a). Alternatively, even assuming § 16.003(a) "~ied to her invasion of privacy claim, its limitation period &l" was tolled until May, ~' when Ms. Farmer actually learned from the FBI that the ~ nude photos of her~y existed and what they depicted. Moreover, Ms. Farmer's two tort claims ha#solutely nothing to do with the TCHRA. Defendants' Motion to Dismiss is ~~y untimely and their Traditional Motion for Summary Judgment fails as having no factual basis and hence no legal vitality. Defendants should not be permitted to unilaterally characterize Ms. Farmer's claims to suit their desire to avoid 'legal and moral responsibility for her egregious sexual abuse and Ms. Farmer's claims should be fully aired in a public trial upon their merits by a jury of the Parties' peers. 41 Respectfully submitted, THE LAW FIRM OF ALTON C. TODD By: ----,-,-------,,-,----- Jeffrey N. Todd t State Bar No. 24028048. 312 South Friendswood e Friendswood, Texas~ 281-992-8633 (f . 281-648-8633 c~· ile) ATTORNEYS F LAINTIFF ~ 0~ ~(J o{P Q$ os.t£@ ~~ a ~ "~~!© dP ug~ ~ o~(j} ~({;) §::>Q! ~ 42 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was forwarded to the counsel listed below, via the method(s) indicated, on this the 2oth day of February, 2015: Gregg M. Rosenberg 3555 Timmons Lane, Suite 610 Houston, Texas 77027 Via Facsimile, Efile or CM/RRR 43 12/13/2013 7:52:38 AM Chris Daniel- District Clerk Harris County Envelope No. 7311.9 2013-74668 I Court: 215 By; Nelson cuero No. _ __ ANDREA FARMER § IN THE DISTRICT COURT OF § V. § HARRIS COUNTY, TEXAS HENRI MORRIS and §§ ,';0L ~ SOLID SOFTWARE SOLUTIONS, INC. § _JJ!fl d/b/a EDIDLE SOFTWARE § JUDICl!\~TRICT PLAINTIFF'S ORIGINAL PETITION .~rrtf TO THE HONORABLE COURT: f{f;~"" Plaintiff, ANDREA FARMER, eomplains of HENRI ~S and SOLID SOFTWARE SOLUTIONS, L.L.C., d/b/a EDIBLE SOFTWARE, ani/support hereof would show as follows: Discovery. 1. Pursua11t to TEX. R. CN. P. c , Plaintiff intends to conduct discovery under Rule 190.3, Leve\2, Texas. 2. 3. , "'"'"" Plaintiff, AND~ FARMER ("F'ARMER"), is a resident of Aransas County, place of business at 3603 Westcenter Drive, Suite 100, Houston, Texas 77042. 4. Defendant SOLID SOFTWARE SOLUTIONS, L.L.C., d/b/a EDIBLE SOFTWARE, is a domestic limited liability company and may be served by serving its EXHIBIT i t'IJ'' registered agent, Henri Mon·is, at its registered b11siness address of3603 Westcenter Drive, Suite 100, Houston, Texas 77042. Request Pursuant to Rule 28 5. To the extent that Defendants are conducting business under an am~!!la name or trade name, this suit is brought under TEX. R. CN. P. 28, and Plaintiff maKe~:;!' that, upon answering this suit, Defendants make answer in their correct legal and tratf~8;n1es. Jurisdiction & Venue 6. This Conrt has personal jurisdiction over all pa.J~ilfo this suit. The Court has subject matter jurisdiction over this case because in controversy is within the jurisdictional limits of the Court, and no other Court ffi~,.,:ive. jmisdiction over this matter. 7. Venue is proper because the defendant has its principal place of business in Harris Coun1y, and the claims corporate and individual defendants arise out of the same transaction or series of trm1~1))l'lfeJJtdaJJt HENRI MORRIS was the President and CEO of the as Plaintiff FARMER's direct supe1visor. 9. of 2011, Defenda11t MORRIS, acting in his capaci1y and within the scope of his dun~>B' President and CEO of Defendant SOLID SOFTWARE SOLUTIONS directed FARMER to join him on a business trip to New Jersey and New York to meet clients. During this business trip, Defendant MORRIS dmgged FARMER by putting an unknown substance into a drink, unbeknownst to FARMER. Dming this time, MORRIS attempted to sexually assault 2 FARMER and took pich1res of her while she was unconscious. Because FARMER was unconscious she did not know and was not able to know that impermissible pictures had been taken of her until she was shown the pictures in or around March of2012, 10. Causes of Action A. Assault as to Defendant HENRI MORRIS Defendant MORRIS intentionally caused physical c~t , ~ with Plaintiff FARMER directly and throngh the instmmentality of drugs, while ~ or should. reasonably have known that FARJ:viER would find that contact offensiv.ee mor'IJcative. SOFTWA~LUTIONS, L.L.C. 0 B. Assault as to Defendant SOLID cla~fendant MORRIS was employed in II. a managerial capacity by Defendant SOLID FARMER's supervisor. At all times sr At all times relevant to FARJ\ffiR's relevan~ose ARE SOLUTIONS, L.L.C., and was claims, Defendant MORRIS was acting D~dant SOLID SOFTWARE SOLUTIONS, L.L.C., within the scope of his employment by and exercised control over FARM=-~~t:ue of his managerial authority as President and CEO of Defendant SOLID SOFTWA9~sOLUTIONS, L.L.C., and as FARMER's supervisor. Consequently, Defendant ARE SOLUTIONS, L.L.C., is vicariously liable for of Privacy as to Defendant HENRI MORRIS 12. MORRIS intentionally intruded on Plaintiff FARMER's seclusion have known that FARMER would find that intrusion highly offensive or provocative to a reasonable person. 3 B. Invasion of Privacy as to Defendant SOLID SOFTWARE SOLUTIONS, L.L.C. 13. At all times relevant to FARMER's claims, Defendant MORRIS was employed in a managerial capacity by Defendant SOLID SOFTWARB SOLUTIONS, L.L.C., and was FARMER's supervisor. At all times relevant to those claims, Defendant MO~vas acting within the scope of his employment by Defendant SOLID SOFTWARE S~NS, L.L.C., and exercised control over FARMER by virtue of his managerial autlwri~resident and CEO of Defenda11t SOLID SOFTWARE SOLUTIONS, L.L.C., and ~R's supervisor. Consequently, Defendant SOLID SOFTWARE the actions of its President and CEO. o, SOLUTIONS~., @i is vicariously liable for 14. As a result of the foregoing, suffered the following damages for which she seeks recovery: a. Physical pain, suffering, an~:irment from the time of the incidents described herein through trial~, . b. Mental anguish m · iety from the time of the iucidents described herein through trial; c. d. @siltnir•gs and earning capacity sustained fi·om the date of the incident to the time of trial. Exemplary Damages 15. FARMER would show that the actions of Defendant MORRIS, individnally and as imputed to Defendant SOLID SOFTWARE SOLUTIONS, L.L.C., were done intentionally and with malice and/or gross negligence. Consequently, Plaintiff FARMER 4 seeks exemplaty damages in an amount within the discretion of the jmy and within the jurisdictional limits of the Comt. Prejudgment and Post-judgment Interest 16. Plaintiff FARMER fmther seek prejudgment and allowed by law. Notice to Maintain Records 17. Notice is SOFTWARE hard copy or electronic formats that reference either their employment with 18. Plaintiff FARMER hereby trial by jmy on all issues presented in this case. WHEREFORE, PREMISES~IDERED, Plaintiff ANDREA FARMER respectfully request that the Defendants be ~ to appear herein and that upon answer and trial of this together with pre-judgment and post-judgment interest at the that they have such other and fmther relief, at law or in equity, to which the.ms,elv.es en ti tied. 5 Respectfully submitted, THELAWFIRMOF ALTON C. TODD By: _____.,_J8illy~__,N.l.-'-.--±_Tatl~----,.- Jeffl"ey N. Todd ~ State Bar No, 20092000 ~ 312 S. Friendswood D~··, ~v Friendswood, Texas 7, (281) 992-86il3 (281) 648-8633 Pi nile No. ATTORNEYS PLAINTIFF ./ 6 12/18/201311:19:53AM 713-755-1451 Page 214 Filed 13 December 18 A11:20 Chris Daniel· District Clerk Harris County FAX15672436 CAUSE NO. 2013-74668 ANDREA FARMER § IN THE DISTRICT COURT OF Plainti!f, § § v. § HARRIS COUNTY, TEXAS § HENRI MORRlS and SOLID § .i& JUDICIA~iRICT SOFTWARE SOLUTIONS, INC. d/b/a § EDIBLE SOFTWARE § 2l5TH Dettmdmtt. DEFENDANT'S ORIGINAL ANSWE~ ¢lf o:fj Det~is, Suite 200 Ho_t~n, Texas 77002 ~ 960-8300 (Tel) ~3) 621-6670 (Fax) ~Attontey-in-Charge tor Defendnt1ts OfCounsel: ~ ROSNEBERG SPROVACH ~~ ATTOR[\!EYS FOR DEFENDANTS ©; uager. Operations Office Manager to an Implementation"~ within Edible Software as of November ~ 2011. 3 In the Implementation Role, Barn~s expected to assist new customers with purchased software, either on site or at the~ility. 4 She went on two business trips during her employment; (1) a business trip to ,~ Georgia to attend a trade show on or about October 15, 2011 and (2) a business trip~ew Ol"leans, Louisiana to meet a prospective client on or about November 14, 2011. 5 ~tt continued to work for Defendant Edible Software until in or ©!~ about February 2012, wh~he resigned from her employment. 6 ~ . b. Hill'~ployment History ~~ # 1 In this Plea to the Jurisdiction, the Statement ofFacts is entirely the same as what has previously been presented to the Court in the Motion ibr Summary Judgment. They are incorporated here as a matter of convenience. For the purposes of this plea all facts are to be constmed most favorably against Defendants. 2 Barnett Dep., Ex. 1, at 24:5-15, 'BarnettDep.,Ex.1,at27:11-12. 4 BamettDep.,Ex.l,at25:12-l8. 5 Barnett Dep., Ex. I, at 29:17-25; 30:22-31:7; 75-76. 6 BarnettDep., Ex. 1, at 11:25-12:5. 3 Plaintiff Keri Hill ("Hill") began her employment with Defendant Edible Software on December 12, 2011 as a Sales and Marketing Manager. 7 As part of her job duties, Hill was required to meet and help secure prospective clients. 8 To that end, she went on two business trips during her employment; (I) a business trip to New York to meet prospective client Anchor Seafood on or about January 8, 2012 and (2) a business trip to Chicago m~iJ!Ma, Illinois to meet prospective client Pasqua! on or about January 22, 2012. 9 Hill wa~ed by Defendant ~ Morris to attend the New York business trip. 10 She initiated a requ~ttend the Chicago trip and told Defendant Morris that if he thought it would be a goo~ing expedence for her she would like to attend. 11 On April 11, 2012, Hill was put ~aid leave of absence and was subsequently notified of her termination approximatel~~~eeks later." c. Stewart's Employment History o"'@;j ~ Plaintiff Stacy Stewart ("Stewmt") ~~ her employment with Defendant Edible Software in or about February 2011. 13~ewart was employed to implement software at customet· sites. From March 18, 20 ~~tgh March 22, 20 II, she attended the Boston Seafood Show. Upon her return, Defen<@~orris and Beth Jackson, a management level consultant, met with Stewart to discuss,~erfotmance at the show. Defendant Morris commented that g"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,~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'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 22 creates a jurisdictional bar to" discrimination claims. Schroeder, 813 S.W.2d at 488; Waffle House, 313 S.W.3d at 804-05. Pruitt, 366 S.W. 3d at 746, citing Schroeder, 813 S.W.2d at 487. This precedent from the Texas Supreme Comt requires the exhaustion of administrative remedies with the TWC prior to filing suit for intentionally aiding or abe~~crimination. Pruitt, 366 S.W. 3d at 746. ~U The Pruitt comt cited to Waffle House in setting forth ~ for the precise pre- o©Ji emption/exclusion remedy that the Defendants are asking the ~to invoke in this case. The task of the court is resolving the jurisdictional issue in Efi!Jt was to determine whether the gravamen of the plaintiffs claim was essentially on~ial discrimination and whether his common law causes of action were based on the sll)~ourse of conduct giving rise to a statutory ~ discrimination claim. Because Chapter 2l~re-emptive when the actions forming the complained of torts are entwined with thdomplained of discrimination, the test for the court was to determine whether or not t~4~re additional facts that were unrelated to the statutory discrimination claim that would ~~ndently suppOlt a tort claim. Pruitt, 366 S.W. 3d at 749, citing Waffle House, 313 S."'~t 808. 6~"' The Texas Suj~Court has held that a plaintiff cannot proceed on a common law track for the alleged as~ff when such claims are t'OOted in facts inseparable from a claim of harassment, re#d exclusively by the statutory provisions of the TCHRA. A statutory cause of action~brogate a common-law claim if there is a "clear repugnance between the two causes of action."'" If claims involving sexual harassment are pursued as common law torts, 139 Waffle House v. Williams, 313 S.W.3d at 802. 23 "the statutory procedut·es and limitations applicable to such claims would be rendered superfluous."'" Plaintiffs base their common law claims on Defendant Morris' alleged actions of unwanted sexual contact during business trips where both Defendant Motl'is and Plaintiffs were acting in their capacity as employees of Defendant Edible Software. Sue~~ hamssment allegations occun-ing within the employment relationship are exclusiv~ govemed by the ~ TCHRA. This CoUt1 has no jmisdiction because the TCHRA i~exclusive remedy for workplace sexual harassment, and the plaintiffs have not satisfi~urisdictional prerequisites to bringing suit. 141 "/!!J' a, Plaintiffs' claim that Defendant Edible So~~ liable for the alleged unwanted sexual touching by Defendant Morris ~ ~tted to the TCHRA scheme for such employer-employee relations. ~ 0 Plaintiffs admit in their petition th~Jlncidcnts of assault complained of all occurred when, "Defendant Morris was employe~iMJ. managerial capacity by Defendant Solid Software Solutions, L.L.C.," and that "~ant Morris was acting within the scope of his employment."'" An employe~Qhility for unwanted sexual touching by another employee is limited to the tailored ~ scheme that specifically covers employer liability for sexual harassment. 14' Even t1Jl:wgh unwanted sexual touching is considered simple assault undet· Texas o{,({Y' law due to its ~sive and provocative" nature, such claims arising in the workplace are exclusively ~ned by statutory regime. 144 A reading of the Petition in this case clearly reveals ~ 140 Id. at 802. 141 /d. at 801 (The court agreed with Defendant's assertion that the common law claims asserted by Plahtliffshould fail as a matter of Jaw because the TCHRA is the exclusive remedy for workplace sexual harassment). 14 ' PlaintiffS' Second Amended Petition, at ~~18-19. 143 Wqff/e House v. Williams, 313 S.W.3d at 803. t4·1 Jd. 24 that the alleged conduct occurred while Defendant Monis was acting in his capacity as an employee of Defendant Solid Software Solutions.'" Additionally, Plaintiffs attended the business trips as part of a function of their employment with Defendant Solid Software Solutions. Hill was required to meet and help secure prospective clients as patt of her job duties. 14' Therefore Hills' attend~~the business trip to New York to meet prospective client Anchor Seafood on or about ~\J'Y 8, 2012 and the business trip to Chicago and Peoria, Illinois to meet prospective ~¥Pasqua! on or about January 22, 2012 was within the scope of her employment. "~the Implementation Role, Bamett was expected to assist new customers with purchase~vare, either on site or at their facility, therefore she attended business trip/shows ~~~vith clients as a part of her job.'"' Stewart described the reason for her attending the ~;ljton Seafood show business trip, the event in which she alleges the incidents of assault o~d, as related to the scope of her employment. Stewart testified that when she was invited ~he trip, she was told by Defendant Morris that her duties and responsibilities while on~~ was to "observe and learn the product," a function of he~· job. 149 ~ All Plaintiffs in the cl,!ll~ttended the business trips as part of their work and as a patt of ©~ their employment with ~dant Edible Sofuvare. The allegations of unwanted sexual contact ~ allegedly took plac~le on business trips within the employer-employee relationship. Thus, Plaintiffs claim~rding employer liability for alleged sexual harassment must be governed by theTCI-~~ 145 See e.g., Mosley v. Wai-Mal'l Stores Texas LLC, 2011 WL 2893086 (N.D. Tex. June 20, 2011). 146 Hill Dep., Ex. 2, at 45:24-45:1. 147 See Waffle House v. Williams, 313 S.W.3d at 803; See also HillDep., Ex. 2, at 169:21-23;169:24-170:1. 148 BamettDep.,Ex.1,at25:12-18. 149 Stewart Dep., Ex, 3, at 57:23-58:12; 86:2-9. 25 b. Plaintiffs' claims of assault stem from the same facts that support a sex discrimination (sexual harassment) claim exclusively governed by the TCHRA. Plaintiffs' common law claims of assault are preempted because the TCHRA provides the exclusive remedy for workplace sexual harassment. The Texas Supreme Comi has recognized that a plaintiff is bm1'ed from recovery based on a common law tort where a st~~·y remedy is available for the same conduct that underlies the tort claim. 150 The TC~~onfers both the right to be fi·ee from sexual hamssment and the remedy to combat it. 151 1\\h.en the gravamen of a ·~' plaintiffs case is TCHRA - covered harassment, the Act fot~~s common-law theories predicated on the same underlying sexual harassment facts." 152~Q~ ·\f@ w- The TCHRA provides a specific statutory scheme.~ remedy for sexual harassment."' This includes discriminatory conduct in the form of ~nted sexual touching creating a hostile ·~ environment claim as a result of sexual work environment.'" The elements of a hosti~"§:·k me~~Jl of a protected class, an allegation of being harassment include plaintiff being a subjected to unwanted sexual advanc~~~assment based on sex and harassment affecting a term or condition of employrnent. 1 ~ims with facts that give rise to those elements fall under the TCHRA which provides a~Yuue for a plaintifl' to assert a claim of liability on an employer when subjected to sexuaQ~sive verbal and physical contacts in the workplace, Plaintiff Bam&alleged that Defendant Morris, "attempted to sexually assault" and •;:£(/Jj' "attempted to ~~ly remove her [Barnett's] clothing."'" Plaintiff Hill stated that she "awoke 150 ~ Wqf}le H01 e v. Williams, 313 S.W.3d 796, 802 {Tex. 2010). 150 Id 152 Wajjle House v. Williams, 313 S.W.3d 796, 813 {Tex. 2010)(citing Pl'uitt v. Int'l Assoc. of Fire Fighte1·s, eta!., 366 S.W.3d 740, 747 (Tex. App. 2012)(citing Black's Law Dictionary 770 (9th ed. 2009)([T]he gravamen is "the substantial point or essence of a claim, grievance, or comph1int."). '"Tex. Lab. Code §21.051. 154 Hardy v, Fleming Food Co., Inc. 1996 WL 145463 (S.D. Tex. 1996), "'Prigmore v. Houston Pizza Ventures, Inc., 189 F. Supp. 2d 635, 642 (S,D, Tex. 2002). '"Plaintiffs Second Amended Petition, at~ 9. 26 with memories of Morris' face pressed against her and being sexually assaulted by Morris."'" Plaintiff Stewatt alleged that Defendant Morris massaged her shoulders and propositioned to finish the massage in her hotel room. Plaintiffs allege that these actions took place during business trips where Defendant Morris was acting in his capacity and within the scope of his duties as President and CEO of Defendant Solid Software."' According to~#· Defendant Morris' alleged conduct was "offensive or provocative."'" Addition~ their deposition testimony, the Plaintiffs allege the following incidents of unwanted s~~ouching. Plaintiff Hill's speculations of unwanted sexual touchin~~ the Chicago business trip include: o~ (~ • Defendant Morris holding her hands.'"' ~ ~ • Defendant Morris' face pressed against!~~ ofPlaintiffHill's face. 161 • Defendant MoiTis held Plaintiff Hil~Ynd and rubbed in her vaginal area and up and g down her leg.'" @ Plaintiff Barnett's speculations of ~ted sexual touching during the New Orleans business trip include: "-~ 0 • Defendant MorriU@Ji:'il Plaintiff Barnett's sweater off.'" Plaintiff Stewart speci'lreally stated that she believes she was sexually harassed while working o~@'~ for Defendant E~oftware in her deposition testimony as follows: Q: ~~o you know what the term sexual harassment means? A~"'yes. Q: Do you believe you were sexually harassed working at Edible Software? 157 Plaintiff's Second Amended Petition, at~ 12. 158 Plaintiff's Second Amended Petition, ~~ 8-9, 10-11. "'D's First Amended Petition, at 1l1l15-17. 160 Hill Dep., Ex. 2, at 122:1-123;22. 161 Hill Dep., Ex. 2, at 123:11-20. 162 Hill Dep., Ex. 2, at 123:18-124:15. 163 See Plaintiffs Second Amended Petition; Barnett Dep., Ex. 1, at 109-116:12. 27 A: Yes. Q: Okay. And your complaint against Edible Software in the civil suit is for sexual harassment, correct? A: Yes."' Stewart also testified: Q: ... When you contacted the lawyer named Bashinski, what was it~ you though youhad? rj/jj A; Sexual harassment. F'~ Q: Okay. So even as earlie1~as early as April of 2011 you kh\,w you had a sexual harassment claim, correct? That's why you went to see .a &er? A; fu.~ ~ Q: Okay. ln other words, you lmow, in your lawsui~lege that you were, as you say, sexually harassed, right? Correct? ~~ A: Yes .166 rpj'; .'}!!! Stewart's assertions of unwanted sexual touching dm·~~oston Seafood Show business trip include: ~ §"@ 0 . • Defendant Morris allegedly massaged ~~uldet·s in the hotel lounge area on March 21,2011.'" ~(J • Defendant Morris allegedly aska Jd.at156. ~ ~QNCLUSION & PRAYER WHEREFORE, P~S CONSIDERED, Defendants move that the Court grant summary judgment 0i~ favor as to all such claims as to which the Court finds it proper to do so, award Defe1i,~ts costs of court, and grant Defendants all such other and further relied, at law or in ~~as to which Defendants may show itself to be justly entitled. 34 Respectfully submitted, Is/ Gregg M. Rosenberg Gregg M. Rosenberg Texas State Bar No. 17268750 * ROSENBERG & SPROVACH 3518 Travis Street, Suite 200 Houston, Texas 77002 (713) 960-8300 G~ (713) 621-6670 (Facsim~ Attorney-in-Charge f~~ndants 0~ OF COUNSEL: ~ ROSENBERG & SPROVACH ATTORNE~R DEFENDANTS 0~ CERTIFICATE OF SER~E w; I ce1tify that a l!ue and correct copy of the fo1~ng instrument has been fmwarded via Texfile.gov Electronic Service on this the 21 ' 1 day qf~bruary 2014 to: ~ JeffreyN. Todd rF~ 312 S. Friendswood Drive ~~! Friendswood, Texas 77546 g (281) 992-8633 (Tel) riJ?o (281) 648-8633 (Fax) o 0J"Y Q~ ls/GreggM. Rosenberg ~ GREGG M. ROSENBERG g~ ~a o;f1{j ~(iJ ~ ~ 35 2/27/2014 5:15:59 PM Chris Daniel~ District Clerk Harris County Envelope No. 591022 By: JONATHAN PATTON Cause Number: 2012-65503 KERI HILL AND MICHELLE BARNETI ( IN THE DISTRICT COURT OF ( VS. ( HARRIS COUNTY, TEXAS ( HENRI MORRIS AND SOLID SOFTWARE ( :>Jk, SOLUTIONS, INC. D/B/A EDIBLE SOFTWARE ( 55TH JUDICI~STRICT PLAINTIFFS' RESPONSE TO DEFENDANTS' P~ TO THE COURT'S JURISDICTION ~ 0~ Plaintiffs Keri Hill, Michelle Barnett and StaJ:>.~tewart, ("Plaintiffs", 0~ "Assault Victims"), herewith respectfully respond to the@dants' Plea to the Court's Jurisdiction, heretofore filed herein by Defendant~~·i Morris and Solid Software Solutions, Inc. dfb/a Edible Software, ("Morri~ible", collectively "Defendants''); and, in support provide the following inform~, argument and authority: ·. RELEVANT FACTS~ PROCEDURAL HISTORY ~ The Assault Victims filed t~ Third Amended Petition on August 23rd, 2013. Following relevant discover~endants filed a Motion for Summary Judgment, ("MSJ"), which this Court werly denied. On February 21st, 2014, Defendants filed their Plea to the Court's Ju~ion, ("Plea"), to which the Assault Victims herein respond. To quote the inimit~~ogi Berra, "It's like deja-vu all over again."• In their instant Plea, exactly as the~ in their previously denied MSJ, Defendants obdurately cling to the g self-ser~.@stortion that this case involves nothing more than routine workplace discrimination claims and not the appalling reality that the Assault Victims were surreptitiously drugged, completely incapacitated and then sexually molested and otherwise violated, The single grudging reference to that awful truth in Defendants' Plea ' http:/fwww.baseball-almanac.com/ quotes. fiillill!l!i!!EX~H!i!'!II!!BI!i!TIIl!l!ili!!llltA 1 j \ \D /) is renounced in the very next sentence: "Defendants are cognizant of the severity of the allegations being asserted by each of the Plaintiffs in this suit. Regardless, even if the allegations of assault of a sexual nature were true, the exclusive remedy lies within the confines of the TCHRA." 2 As the Assault Victims will clearly show in their following analysis, that is a denial of established fact and a manifestly inco~~atement of controlling Texas law; and, consequently, the Plea should be denie~rt:jach and all of its particulars. ~rfj II. ~~ 0"'~ ARGUMENT AND AUTHORI'F:r:f<:S ~ The Defendants' Plea sub judice is premised u~three fatal flaws: (1) this case is ~ission for Human Rights Act, most certainly not controlled by the Texas ("TCHRA"), or the presumptive preemptio~~ been seemingly accorded by the Texas Supreme Court, in Waffle House v. WilY, 313 S.W.gd 796 (Tex. 2010)3, as discussed in Pruitt v. Int'l Ass'n of FireFigh~rp>366 S.W.gd 740, 745-46 (Tex.App.- Texarkana 2012, no pet.), regarding all clai~ising out of workplace discrimination, consequently the Assault Victims had ~Vstatutory procedural obligation to exhaust TCHRA administrative remedie~re commencing the instant suit; (2) while the question of whether this Court !l)}l~ evening, (84:2-8); and, they stayed there about 30'V tes or less, (84:9-13). She went to a setup buffet and obtained some appetizers on~@ate, (84:18-19), and she poured herself '"'~ a vodka soda drink, (84:20-23), at a self-~catt, (85:2-14). However, she only drank about half of it, (86:16-19). ~ That day, before arrivingJR"'~41ounge, Ms. Barnett had eaten breakfast, a salad for lunch and two bags of pea~~ the plane, (85:16-25);, then, in the lounge, she had the appetizers, (85:19-21).~e Morris arrived in the lounge, they only stayed there a short time, (86:12-16).~9ris wanted to go to a restaurant for dinner and he made to-go ~ cup drinks to take ~e drive there, (86:19- 87:10). Morris poured the remaitung half on her drink into ~fo-go cup and then he added to it, (87:9-16); and, he prepared a to-go drink for~lftoo, (88:4-5). Importantly, Morris took her drink from her to make her to-go cup drink, (88:6-9); and, during the time he made it, he went behind her so that she could not see what he was doing, (88:6-20). They did not have reservations, (89:7-18); so, they then wentto Mr. B's for dinner, which was across the streetfrom the hotel, (88:19- 89:6). There was no wait at the restaurant and they were seated immediately, (89:19-25). 10 Ms. Barnett only had a sip or two of her to-go drink because it was very strong, (90:8-11). When they went into the restaurant, the drinks were taken from them, (89:24- 90:7); so, they ordered more drinks, hers again being a vodka soda, (90:15-18). Up until that time, Manis had done nothing assaultive, (91:25- 92:6); but, near the end oftheir meal, significant events occurred, (93:8-11), During the course of her di~"'toth of them drank and she consuming a total ofthree drinks, (92:10-24); the d~Qasting about two hours, (92:25- 93:1). Near the end of dessert, a waitress asked ~~fthey wanted more o@;J) drinks, and she said no, (93:8-14); however, she excused h~o go to the restroom and when she returned to the table, two drinks were sit~ere, one for her, (93:14-16; 95:13-16). Morris claimed the waitress had just br~em, (93:19-24). Since she didn't want this new drink, she only had a few sips of~'bJ4:12-24); then she dumped it out into her water glass, (94:21-25; 95:17-24), bec~e didn't want it, (95:22-25). Then, they left to walk on Bou~ Street to look at the customer's building, (96:20-24); but they never got th~doing into a piano bar called PJ's instead, (96:25- 97:7). (She later corrected t!Q~e to Pat O'Brien's, (145:15- 146:2)).Going in was Morris' idea, (97:8-21); sh~tipsywhen they arrived there, (97:22-24). Morris ordered more drinks even tho~1fe did not ask her if she wanted one of, if she did, what kind, ~ (98:18-25), The dt~he received, she later learned, was a "Hurricane", (99:1-15). She nq;~G . didn't refuse ~'e;;lft•ink, but she felt Morris was intentionally trying to get her to drink more tha~vanted to, (99:20- 100:4), because she had specifically told him at the end of dinner that she didn't want to drink more because they had to see the elient in the moming, (100:5-10). But, she felt compelled to dt·ink more at the piano bar because she was with her boss and she was trying to "go along", (100:17-21; 101:19-23). The Hmricane was a very big drink, (100:22- 101:8); and, she didn't !mow he was ordering it and 11 therefore didn't have a chance to say she didn't want it, (102:6-21). Once it came, she a third to a half ofit, (103:6-7), because it was very "alcohol intensive", (103:8-13); but, even so, while she was again in the restroom, Morris ordered another one, (103:16-23). This time, she told him directly she didn't want another and asked him why he had ordered it, (104:21-24); in response, he told her to drink the new, full Hurricane a~ moved the half-full one away from her, (104:25- 105:3)! ~a s~~ compelled to drink She again told him she didn't want it, (105:6-8); but, some of it and she drank about a quarter of it, (106:2-~e later learned tbat tbe principle alcohol in such drinks is Bacardi 151 proof ru~o6:7-17); and, she could not recall ever before having drunk such potent alcoh~~:l-6). She has no recollection of leaving the piano bar; she can only remember ani'llrm pulling her out of her chair and that {!? is the last thing she remembers, (105:17~08:9-13). Later, she discovered the next morning tbat it was Morris, who had p~ on her arm, (108:18-23). The next thing she remembers is Morris pulling he~~er off, (109:19-22); then, she remembers running to the bathroom in her hotel~ to throw up, (110:1-5; 110:25- 111:3). She remembers saying, 'Oh, this isn't hap~g to me." (111:7-9); and she remembers someone pulling her clothing off and sh@fearful for her safety, (111:10-14). But, she doesn't have a vivid recollection of ~~g else, (116:10-12). And, it is here that the real horror of her experience b~es exquisitely clear. This good and decent woman was rendered incohere~~the intentional drugging of Morris; and, she is left now to forever wonder about what vile things he did to her while she was unconscious. Did he rape her? Sodomize her? Photograph her naked as he did others? Share those salacious photos with others? The possibilities are extensive and the implications foul and odious. And, despite Defendants' persistent assertions to the contrary, her awful victimization is not erased 12 because she has no memory of it; in the same way that a surgeon's malpractice blunders are not negated by the fact that the patient was asleep when his tort occurred! In the morning, she called her husband, (116:13-15). She told him about the previous evening and that she felt uncomfmtable and didn't want to go see the client, (117:12-15). Her husband advised her to go to the client's in a separa~~nd to write what she could remember down and to tell Morris that what had ha~gd made her very uncomfortable, (117:18- 118:1); which she did, (118:2-3). Lat~ notes upset her so oci@ much she threw them out, (118:4- 119:3). Opposing coun~essed Ms. Baxnett about why she didn't call 911 or otherwise report that night; h~e said she couldn't be sure a crime had been committed, 122:3-23); and, she ~nted to go home and make the evening go away, (123:12-18). But, she didn't gg~me immediately; she prepared herself ~ for the day ahead even though she didn't ~o, (123:19- 124:25); and, then she texted Morris that she was uncomfortable ab~he previous night and she wanted to go home and would get herself to the airpo~~h5:1-4; 126:10). Morris' breathtakingly deceitful response was to show up im~ly at her door indicating that he was very unhappy, (126:11-25)! He knocked ~r door, but at first she didn't answer because she wanted him to go away, (127:~but, he kept knocking "like forever", (127:4-5). Through the door, she told him~~ away, (127:11-14); but, as she entered the hallway with her packed bag, he was st~e, so she had to talk to him, (127:13-25), 81~ him she was uncomfortable and wanted to go home, (127:25- 128:5); she was not 100% sure it had been Morris; but, she felt that he had assaulted her and tried to ruin her clothing, (128:13-25). She was certain she was with him and left the piano bar with him, (129:1); and, she felt he had done this to her, (129:7-9). In response to her discomfort, suave predator that he is, he told her he didn't understand her concern 13 because she had come to his room and laid in his bed, where he didn't touch her, (129:18- 20); but, she adamantly disagreed with this version of the events because she didn't even know where his room was, (129:21-24; 131:9-14); and, she told him so, (131:6-14). He responded that he "respected her and didn't want to lose her", 131:15-18). Very interestingly, Morris gave her back the sweater he had taken o~~ffering no explanation as to why he had it, (136:14-19). He asked her to go see it,Yient, and though ~he did, (132:11-12). she didn't want to, she finally agreed to do so, (132:1-10); However, because of their conversation tlley were late arr~t the client's, so Morris lied and said tlley had problems getting the car out oft~rage, (134:1-7). Defendants, just as they did in their MSJ, ~~uch of the fact that Ms. Bamett testified that her claims against Morris arise ftQ~ns role as her supervisor in the course ~ and scope of employment, (137:18-21); b~ectfully, she is not a legal expert and has no basis to make such a legal assertion~ey also focus on her testimony that her claims concern her employment and M~$~onduct in a work context, (198:11-16); but, again, she is not qualified to make s~etermination. Ms. Barnett is the highly traumatized victim of a vicious assault ~1e is not a qualified expe1t on Texas or federal employment law. Moreover, Defen~9offer not one word of explanation as to how drugging a woman ~ at dinner for pu~s of sexual molestation relates in any conceivable way to job o(!:J' performance ~~rkplace conditions; for the obvious reason that it does not. W~e returned home, she talked to her husband, (145:7-9); because she just couldn't understand how she went from being in control of herself to having no recollection, (145:10-14). She decided then she needed to look for another job, (146:8-14); and, she began to look for one, (146:15-16). She liked Beth Jackson, but didn't trust her and tlley did not discuss what happened, (147:22- 148:10); and, she not discuss it with 14 any other Edible employees until a few weeks later, when she talked with a new employee, Erin Bjork, (148:11-22). She specifically told her she thought she had been drugged and that Morris had attempted to sexually assault her, (149:25- 150:18). She also told her husband that, (150:19-21). She made no attempt to preserve a urine sample or other evidence because she just didn't have the opportunity to do so, further conversations with Morris about the matter until about * (151:~. She had no a~M later, which he initiated, (153:21-25); he said he was concerned for her and ~~plied she was fine, o!?@ (154:1-7). A similar exchange occurred on another occasio~4:8-14). She just tried to avoid him, (155:11-19), unless contact with him was re~®a, (155:20-22). Ms. Barnett never discussed the matter wi~v employee Michelle Byrd, who dealt with sexual harassment matters, becau~~e felt it would be unsafe to do so as Morris was the company president, 158:~9:2); thus the anti-harassment plan was "unsafe" for her, (159:9-24). She thougl~e idea that Morris would lose his job while she kept hers was ridiculous, (159:3-~ owned the company and she was a hireling, and any complaint she made wo4e gone directly to him, (160:1-24). After Morris had been arrested for the cri~~ charges against him, (including one flowing from her complaint), she told M~~nk Lettieri, with her former employer, what happened to her, ~ (163:4-8). After r~ng her assault to the FBI, she had a difficult time, (170:6-7). But, she couldn't j~it until she found another job because she couldn't afford it, (172:21- 173:1). L~~en she did quit, she needed family assistance to make ends meet, (187:15- 22). She finally talked to Keri Hill about her assault, at the suggestion of Erin Bjorl<, (173:8-16). Their mutual allegations were remarkably similar: both traveled with Morris early in their tenure with the company; both met Morris in a hotel concierge lounge; both received to-go cups from him, containing drinks he had mixed; both completely lost their 15 memories; both had no history of excessive drinking; and, both were terribly uncomfortable about what happened to them, (174:14-25; 175:1-6). Ms. Hill specifically told her about Morris pressing his face to hers and telling her what a good employee she was and that he wanted her to be with him for a long time, (175:11-14). However, even when she resigned fl'Om the company, she did not give the attack as a ~~because she feared for her physical safety, (190:7-16). ~U After she left the company, she sought unemployment ~s and told the Texas Workforce Commission she had been a crime victim, ~4-24), (not a victim of workplace discrimination). She told them all she coulcb~mber, (193:22-194:6); she is now certain she was drugged by Morris because sQ~consciousness and later when he was arrested, blackout drugs were reported in~ news to be on him, (194:18- 195:19). ~ Again, opposing counsel pressed Ms. Bar~ the fact that she really has no memOl'y of what happened to her, (199:4- 200:1~ut, that speaks to the efficacy of his assault technique, it doesn't negate its oai{Vce or legitimate claims arising therefrom. Indeed, she eloquently explained tha~ day since the attack, she has suffered panic attacks, anxiety, fear, panic, bein~~~mt from her family, having to think about this "shit" every single day and not b~~ere for her children when they need her, (201:12-21; 204:6- . ~· 20); for whiCh s~~s seen the FBI counselor, (203:1- 204:3). She has also lost work, (204!23-25).~~efore, her testimony completely supports the prima facie assaultf~y claims she herein asserts. Plaintiff Keri Hill testified in her eight and a half hour long discovery deposition, (in which undersigned counsel for Ms. Hill again reserved all questions until time of trial), in relevant part, that she lives in Houston, v.1th her husband and two children, a 13-year- old son and a 5-year-old daughter, (5:15- 6:8). She graduated from Texas Tech University 16 with a bachelor's degree in social work, (27:14-23; 28:4-5). She left her employment at Edible on April 30, 2012, (20:3-8); and, did not find a new job until August 2, 2012, (18:10-12). She first learned of a job at Edible in November, 2011, (31:13-15). Slightly later, she had an interview and met Defendant Morris, (37:10-15). They hired her, but before she began worldng there, on December 12, 2011, (40:3-4), she att~their office Christmas party, (39:17-25). There was drinldng at the party,(43:1~~~. About a month after she began worldng there, a u·ip to ~qork came up, (45:9- o@;j) 19). Morris made all the travel arrangements, (48:6-7). ~ flew to New York on a Sunday, (50 :12-14), and she drove herself to the airport~~et Morris in the Continental President's Club, (50:21- 51:5). She got to the airp~~ and ate lunch by herself, (51:10- 17). As soon as they entered the VIP lounge, 1~s ordered two Bloody Marys, (52:1-5); Morris obtained the drinks at a bar and ~ht hers to her, (52:10-15). The choice of drinks was Morris', (53:7-12); and, she ~nd up drinking two of them, over about 30-45 minutes, both ordered by Morri~~6- 55:1). She also ate a plate of snacks during that time, (55:2-4). On the plane,~ sat next to Henri in first class, (55:7-10); as he had upgraded her to ticket, (5~0). During the flight, she drank two vodka and cranberry drinks, 57:22- 58:9); ll[~espite having four drinks during that day, she felt fine, (58:6- 12), as she also at~~al o{» during the flight, (58:13-25). When ~~ane landed, they obtained a rental car, (59:10- 60:12); which Morris got to pi~~d in doing so she felt he was showing off, (60:16- 61:9). Then, they drove to a Marriott hotel, which was so close to the airport she thought it would have been just as easy to walk there from the airport, (61:15- 62:1). When they checked in, Morris was very jovial, knew many of the employees by name and went behind the counter to hug several people, (63:3-8); from this she assumed he traveled there a lot, (63:20-24). During such, 17 Morris advised her that Beth Jackson would also be arriving, (63:8-17), He checked both of them in, (64:11-20); they had rooms on the same floor, (64:21-22). They got to their rooms at about 5 pro, (65:13-15). Since she had never been to Manhattan before, Morris said he would drive her there for diner, (65:18- 66:23). She wanted to see the lincoln had time, (68:10-24). Weirdly, there was a single photo of it in * Center skating rink, (67:10-20).; and, since there was business plann~t night, they he~Yne the next day, but, she had no memory of being there, (111:1- 5). ·~ ~ ..~~ Before dinner, Ms. Hill called her husband to tell ~e had arrived safely and that they were going into the city to eat at a deli, (69: 1•~and, she also talked with her kids, (70:3-7). After that, as instructed, she met ~in the hotel's concierge lounge, (70:22). There were a Jot of snacks there and sh&li1•anted some; but, Morris told her not ~& to fill up because they wonld be eating a b~er, (71:16-22). Dming that time, Morris ordered two vodl{a and cranberry and ~ixed both his and hers and handed her drink to her, (71:21-25), She drank abo];!t~# of her drink, (72:14-15); when Morris told her it was time to leave for dinner, ~~went up to the bar and got two to-go cups, (72:16- 25). He said the cups won~em take their drinks in the car, (73:1-4), Importantly, he took her half-empty d~from her and replaced it 11oith a new drink which she didn't ~ want and didn't a~r; then he turned his back to her and made the to-go cup drinks while she coul#see what he was doing, (73:7-11). She knew drinking in a car was not a good ide~he said she wouldn't have done it herself, but, she was 11oith her boss in a new job, so she didn't protest about it, (73:22- 74:24). Morris brought three cups, on which he had written his name on one, her name on another and "spare" on the third, which struck her as ve1y odd, (74:25-75!4). Morris carried two and she carried her own, (75:8-10); and, they walked to the ear, (75:11- 76:1). She had two sips from her drink 18 during this walk, (76:2-7). After that, she has absolutely no recollection of the entire evening, until she remembered trying to get out of the car back at the hotel, much later, and trying to find her room, (77:1-19). She has a vague recollection of getting into the car and the car moving, but none of anything else that night, (78:2-25). She has a one-two second flash memory of trying to get out of~' (79:9-18). (79:2~-f. She remembers She can't recall eating or drinking anything that entire night, trying to find her room because she felt uncomfortable and lo~~ couldn't figure out where she was, (80:1-13). She felt like a little ldd who was ~and dreaming; saying, "I had zero ability or control over what was happening, a~ remember that I don't know where I was, but I remember that I wet my panQ~5-10). The next recollection she has is standing in her hotel room, with Mo~~tanding over her saying he had been looking for her, (82:15-20). She had no~ how he got into her room, (82:21-22). Opposing counsel asks her if it is true tl~orris was expressing concern for her, and she agrees that this is what he said, ~V 84:6); but, with due respect to opposing counsel for doing his job, the total pict~~ich emerges from this nightmare is horrific. Ms. Hill, a wife, mother and colle~duate, on her first company trip, has been reduced to a terrified, confused, in~qnent mess because she was drugged into insensibility; and, here is her attacl~~pressing his crocodile tear concern for the awful predicament he 0~ has malicious~tentionally put her in! Bluntly, it's difficult to imagine a more fiendish exploita~~ trust or the dignity of another human being. Moreover what he did to her on still another trip only confirms her darkest fears of what he did to her on this one. Ms. Hill remembers asking him to leave, (84:14-15); he responded by telling her to sit on the bed and watch TV with him so she would feel better, (84:16-21). She refused and asked him again to leave, and he did. (85:5-8). But, he likely did so because by then, 19 she had her husband on the phone, (85:9-13). She was later told by him that she said Morris was in her room and she had walked into the bathroom because she felt very uncomfortable that he wanted to stay to watch TV. Her husband told her to ask Morris to leave; but, she has no direct memory ofthat conversation, (85:14-25). At that point, she didn't feel physically violated or in danger, (86:14-25); but the next ~~~g, Monday, Morris made a comment about her drinking the previous evenin~Y she felt terribly embarrassed that she had ruined her new job, (89:2-6); so, ~pologized profusely, 0~ (89:7-8; 89:22- 90:3; 90:16-19). Morris told her he had~"Relp her walk around the previous evening, but, she had no memory of that, (89•~~· After breakfast, they went to see the client, ~~24); and, she was functional that day, (93:17-20). Late that afternoon, they retu~:o the hotel and Morris decided he ~ wanted to take her back into Manhattan a~or dinner, which he did, (94:3-11). Before they went, she again talked to her hus~ and apologized as she had never before had an "alcohol issue" before, (94:~~). Her husband was perplexed about what had happened because that was n~bo she was", (95:10-21). Even then, she didn't believe Morris was responsible fo~ previous night, (95:22- 96:1); but after her trip with him to Chicago, she compW~ changed her mind, (96:2-6), However, that second night in Manhattan was tl.~ntfnl, (96:24- 97:12); although when he again brought up the o\0) previous eve~~ she told him what happened to her was scary as it was so out of charact~~er, (97:17-21), Also, while she did agree to have a beer in the concierge lounge, Morris offered to make her stronger drinks a couple of times which this time she flatly refused, (98:10-18). The next day they worked with another client and Beth ,Tackson arrived at the airport late that day and theywentto pick her up, (102:23-103:16). She met Beth the first 20 time then, (103:20-21). That evening, she, Morris and Beth met in the hotel restaurant for dinner; but, during the meal, Morris left and when he retumed, he had drinks he said he got from the concierge lounge, which she again thought was vety odd, (105:23- 106:6, 106:23-25). She left the next morning by herself and didn't see Morris again until later that week, (107: 10-19). '* ~([7$ Her next trip with Morris was to Chicago, to meet a client i~~ria, (108:12-20). He initially asked Erin Bjork to go; but, she refused, (109:8-18)~~s. Hill volunteered, 0 "@, (109:19-110:18). This trip was in February and they flew o~tnwest, (113:6-12). At the airport, she ate lunch and had a beer, (114:4-17). She ~rum and coke on the plane, (115:5-6), and Morris had a drink too, (116:3-4).#when she went to the restroom, Morris ordered her another drink and was po~ it into a new cup when she returned, ~ (117:8-21). After that, she has no more r~ctions of the rest of the day, (119:10-16), except that she could recall that the ne,~ink looked "muddy" or "foggy" and that Morris poured it really quickly and hand~e first cup off to the flight attendant, (119:19-23; 120:3-15; 120:24). She finally~ to be conscious of her surroundings again about 10 pm that night, (121: 20-25~ has flash memories of Morris had her hands intertwined or locked together wit~ris', (122: 1-6); and, this may have happened a couple of times, (123:1-2). She als~embers Morris' face being pressed against the side of her face and her feeling v~~comfortable physically and emotionally. He told her she had a long career a~t she was a valuable member of his team, and he "had ahold of my hand that was nowrubbingin my vaginal area as well as up and down my leg." (123:9-20; 124:1- 8). This contact was outside of her clothing, (123:24-25). During this attack, she got physically sick several times and she felt the need to try to get up and get away from where 21 she was, and she again felt like a little kid, (124:19-25). When his face was pressed agaulSt hers, she also recalled seeing a square condom packet, (132:1-7). This time, she was certain she had been drugged because she was on a business trip in the daytime and she got on a plane to go to Peoria, yet she was there without any memory of how she got there; and it definitely was not a dream or nigh~(125:7-20). She firmly believes her drink was drugged, (126:9-10). And, a~JlVrorris' criminal attorney, Chip Lev.>is admitted in a news broadcast that MolT~~s arrested with such drugs on his person, (126:20-25). Her next recollection w~g in her hotel room and Morris was there too and a to-go cup was on her dres~~he asked Morris to leave and he did so, (129:17-23). Based upon his druggi~~ on the flight on this trip, she concluded that he had drugged her before in th~ew York concierge lounge before they ~ went to dinner, (130:14-24). The govern~ld her that tests confirmed such drugs on Morris' person, (131:10-16). ~ The next day was spentwi~client, (135:9-10); and throughout the day, Morris made several sarcastic comme~at the trip took a long time because "they had to stop seven times" for her, (135~). That night, they went to dinner \lith the client and she had a glass of wine, (~~19). On the way to dinner, Morris grabbed her hand and she pulled it back qui~ecause she felt extremely uncomfortable and he told her she was being silly, (1f:'9:). Then, as they entered the restaurant, he told her he would hold her hand du~nner under the table, but she ignored him, (137:18-23). When they got back to the hotel, he asked her to go to the casino. When she refused, he got very frustrated and sarcastic and began whining and pouting that he would have to sit by himself, so she relented and said she would have one drink with him, (138:6-15). They went into a bar and Morris ordered two drinks; but, when they came, he took them behind a dessert menu 22 with his back to her, so she walked over and got her drink, a glass of wine, and sat down. He was on the phone. (138:16- 139:5). She was worried he might do something to it, (139:10-15). She knew at that point that something was seriously wrong, but she had trouble "getting her head around it", (139:16-23). Even so, she was scared to report what had happened, (140:4~~d, she was very confused and trying hard to make sense of what had actu~appened to her, (140:17-22). However, she told her husband about it when sh~ome, (140:11-16). In the meantime, she went with Morris back to Chicago fro~·ia to see another client, (141:2-25); and, there were no more problems, (142~®). When she did talk to her husband, he saw a bruise on her arm; but, she tolQ~he hit a wall because she ·wanted to "wrap my head around a much bigger conve~tion that I knew we were going to have ~ to have," (143:12-15). She first noticed th~se when she awoke in Peoria the morning after her bizarre previous day, (144:7~. Finally, she and her husband discussed the matter frankly, (15-17). They m~~unch and she told him she was ve1y upset about having major memmy losses ~o successive business trips, (145:3-11). He told her that when they talked on the ~ while she apparently was in the car ·with Morris enroute to dinner, her r?.r;» speec~as slurred and he was astonished at the extent of her ve1y ~ uncharacteristic ~dng, if that was what the problem was; and even then he told her she might ha «f-in drugged, (145:15- 146:1). She had no recollection of even having that ~ phone c~~ation, (146:4-13). She then told her husband all the rest that had happened in both New York and Chicago; and, he became very sad and upset and suggested that she discuss the matter with a friend of theirs who is a narcotics investigators with the Houston Police Department, (146:15-24). She did have that conversation and was referred to the FBI, 23 (147:16- 148:9). As a result of that, a sting was arranged with her at the Houston airport, so Morris could be arrested, (149:23- 150:3). Not surprisingly, the day after Morris was arrested, she was placed on leave of absence and less than two weeks later, she was fired, (154:23- 155:13). Needless to say, her abrupt termination for reporting Morris' repeated, depraved violations of her stands as profound and eloquent ~on of her apprehensions about ever reporting Morris' conduct. She believ~Wt would be both pointless and dangerous and she was absolutely right! Since th~~cidents, Ms. Hill has o~ci@ suffered lots of anxiety, panic attacks and "fear of movem~"tts7:11-16). Both Monis' civil and criminal lawyers pressed~ Hill for long hours on many details surrounding these matters; but, while De~~~s seized upon various aspects of her answers in their MSJ and continue to do SQ~ the instant Plea, they at the very most ~ present only a broad range of relevant fa~out which reasonable minds could differ. Ms. Hill has pt·esented more than eno~testimony to support her prima facie liability allegations. Therefore, the Plea ~·ly defective as a matter of both fact and law and should be denied in all of its ~~Iars. Plaintiff Stacy Stew~stified in relevant part, in her discovery deposition which lasted in excess of fiv~rs, that she lives in Austin, (4:23-24), with her husband and ~ two children, \8~2), a 13-year-old daughter and a 12-year-old son, (9:3-12). She worked at E.:lq,f~ '§Sy only about six weeks, (11:4-7). She was a software implementation speciali~4-15). She graduated from the University of Texas at Austin in 1993, with a bachelor's in business administration, concentrating in business information management computing systems, (18:8-19). To get her job at Edible, she interviewed with Morris, (21:7-25). The meeting lasted an hour and she also met Trevor Morris and Beth Jackson, (23:14-18); and, she understood travel would be required in this job, (23:3-10). 24 She was offered the job there and she accepted, (24:3-10); and, this was in late February, 2011, (24:12-20). Her testimony in regard to her abuse by Morris is a bit curious in that opposing counsel chose to question her in the context of what she told the FBI when she was subsequently interviewed by them about it; so in transcripted form i~third-party feel. But, in that contest, she stated that she travelled to Boston wit~J·ris to attend the 0~ Boston Seafood Show, (46:1-8), on March 18, 2011, (57:3-~ she went at Morris' invitation, (57:12- 58:8). Morris made all of the travel ~ments, 59:10-15). They stayed in a Maniott hotel while there, (61:2-6). At ~~ouston airport, she drank a Tanqueray & tonic, (62:14-21); and, during the fl~Boston, she had a glass of wine, (61:24- 65:7). §!P After she arrived in Boston, she ~orris in the lobby and they checked in together, (63:3-6); then, as instructed~~met him in the hotel's concierge lounge for drinks, (63:10-16). There, she n~~ris, Beth Jackson and Beth's mother, who lives in the Boston a1•ea, {64:2-10 ). S~ another Tanqueray & tonic, (64:8-11). She made that drink herself; but, a short"'~"' later Morris made her another one and brought it to her, g~:~;f''' (64:22- 65:3), She als~ some snacks, (65:19-20; 66:2-4), Then, they went to dinner at ~ Legal Seafood, (~-21). At dinner, she had a glass of wine, (67:8-9). They left the restaurant at~ 8:45pm because she wanted to walk to an adjacent mall to buy a shirt before t~es closed, (67= 12- 68 :2). From then on, her recollections were very sketchy, (69!15-70:1). The next morning, she woke up with a severe hangover, (46:18-19; 47:3-6); and, she went to a nearby mall to look for a Colee and some food to make herself feel better, {52:14-16). She explicitly stated that her hangover was caused by Morris' drugging her by 25 putting something in her drink, (73:3-24; 73:25- 75:7). Her hangover felt like she had been run over by a truck, (75:8-13). She did not see Morris put the substance in her drink, (83:25- 842); but, she is certain that he did, (84:3-7). Later that morning, she attended the food show, which lasted all day, (85:3- 86:9). When they all returned to the hotel, they, (meaning herself, Morris, ~~ackson and another man), again gathered in the concierge lounge, (87:4- 88:~Kere, she had two Tanqueray & tonics, (88:11-17). Manis made the second dr~ut of her sight and brought it to her, (89:4-9; 89:23- 90:4). Then, they went ~~er at a pizza restaurant, {90:4-10). Beth's mother joined them at dinner, (90~>~). There was no drinking at dinner, (90:22-25); and, she could recall that s~~·ned to the hotel where Morris instructed her to join him in the bar while he :~he others to "go ahead", (91:2-9). They had a conversation during which Morris t~r how important she was to the company, (92:10-14); then, the conversation turn~~irdlyto another woman's breasts, (92:15-18). Then, Morris went to ge~~~ for them at the bar; and, after he returned, he began to massage her should~92:18-21). This was out of the blue, (48:17-20; 11-14); and, it mad.e her very unc~~rtable. But, before she could protest about it, he stopped, (49:17-20). Later, wh~ywent up to their respective rooms, Manis asked if he could ~ come into her roo~ continue the massage, (44:19- 45:4; 46:1-6; 51:3-9; 93:13-18). She quickly decli~d Morris left, (51:10-15); although she thinks he may have tried to get into her~' (93:21-25). During that evening, she had two Tanqueray & tonic drinks, both of which Morris brought to her, (46:9- 47:2). The next morning, she again awoke with a severe hangover, (99:14-18); which she again attributes to being drugged, (101:12- 17i 101:24- 102:15). 26 It deeply upsets her that about the first night she no recollections and has no idea what happened to her; and, on the second night, Morris offensively touched and propositioned her, and on both following mornings, she awoke with severe hangovers, (102:8-12), Also, she feels that because Morris' arrest "with drugs that co~o that" on his person proves her darkest fears, (103:8-11). It worries her that she ~@t know if she was raped, (104:10-11). Once again, opposing counsel asked M~wart if she was 0~ sexually harassed and she agreed, (55:20-25; 93:5-12; 116:13-2~:5-15); however, she o~er suit are, (149:18- 150:7); J therefore, she is not qualified to discuss its legal ~ s. She can only speak to the facts she knows. Moreover, it is unfortunate in the~eme that while she is plagued by the haunting fear that she was raped while in~e and totally vulnerable through no fault of her own, Defendants' only focus i~ dismiss the matter as a routine matter of workplace misconduct which sho~~ disposed of on irrelevant technicalities, Mter she returned to~ston, from the Boston trip, Morris criticized her a~t.e didn't tell him she was offended by his conduct because performance, (125:7-22); ~Ml "she felt the time to ~o was with a lawyer in a courtroom", (129:3-22). While the ~· company had a h~ resources department, she felt it would have been futile to talk to it because it w~aded by Allen, Morris' son, (129:23- 130:17); and, she never received the comp~~exual harassment policy, (130:18- 131:9). However, when Morris fired her in April, only six weeks after she began, she bluntly asked him if it was because she declined the massage proposition and he cut her off, saying, "We're not going there." (131:25- 132:19). In regard to her overall testimony, it should be noted that there are disturbing consistencies in the facts alleged by all three of the Plaintiffs; each was isolated 27 on a trip with Morris shortly after beginning work at Edible; drinking was a prominent feature of every trip; Morris encouraged the drinking and brought drinks he made to each woman; each suffered blackouts and memmy loss; each alleges physical offensive contact; each was primed with virtually identical soothing assurances; each was made to feel ve1y uncomfortable; and, each fears she was raped while unconscious. An~~ this was at the hands of the company president and CEO, many years theikYor and married. Individually and in toto, they clearly state viable prima fa~saultjbattery claims against the Defendants, which have nothing what~o do with workplace discrimination. o,jjff In addition to the facts presented in the d~ depositions of the three Assault Victims, additional depositions have been, ~rein obtained as well. Interestingly, ~ Defendants made no mention whateve1· ~m in their previously denied Motion for Summa1y Judgment and they persis~ that glaring omission in their instant Plea. However, their testimony is velyore.ant to the Court's instant analysis, so they too are succinctly summarized. Q~ Andrea Farmer te~8 that Morris was frequently inappropriate in the office, such as hugging wo...k'-~nployees ~~/ and drank excessively, (22:6-15); and, she saw him pour something ~eth Jackson's drink in Chicago, (22:16-19). Indeed, she felt he was "constantly it&~ropriate", (24:3-5). She worked at Edible for three months, (24:14-15); (May, ~~ugust, 2011, (68:23- 69:2)), and, in fact she complained to Morris' sons, Trevor and Allen and she was told, "That's just the way he is. Just ignore him." (24:16- 26:6). On two trips, she observed him being sexually inappropriate with Beth Jaclife did not, (54:9- 56:2; 57:~:5; 58:25- 59:19; 60:5-19). The FBI now has the photos, (61:1-7). She also con~q that Morris confided to her that he also took nude photos of ~" Andrea Farmer, (~~19). . She sa~orris often travels with small "airplane" bottles, (63:8-10); which she assume~~ed to "re-cycle" liquor, (63:24- 64:4); and, she has seen Morris often make drinks for others, (68:12-14), including the use of "to-go" cups, (69:1-3). Therefore, though she disagrees with Andrea Farmer's testimony "too%", (67:14-16); and also 100%, (83:12-13), ·with that of Keri Hill, (76:22- 80:15), and even v.>ith that of Stacy Stewart, (85:17- 88:3), Samantha Gluclc, (88:8-25) and, even Ms. Farmer's allegations about the 37 Aunt Sally's comptroller, (91:20- 93:2); such multiple disagreement must be filtered through her obvious bias in favor of her longtime lover, (107:20- 108:8), Defendant Morris. On the basis of this mass of testimony, it was clear to the Court in its denial of Defendants previously filed MSJ and its should continue to be clear in t~nt analysis Am~~ Petition claims, of Defendants' equally flawed Plea that, as set out in their Third what Morris did to the Assault Victims is morally and legally ~~trous. Morris didn't discriminate against the Assault Victims, whether in or o~e workplace; rather, he physically attacked and sexually violated them! Mor~~ expressly confessed that he invited or induced the deferential and trusting ~$victims across state lines; where in remote cities he mendaciously drugged~ and all of them into intentional insensibility, with the explicit intent offor~y removing their clothing, photographing them naked and sexually assaultin~em while they were completely inert and vulnerable. He treated each of ~.J;?fJas slabs of meat, to be abused while completely insensate and defenseless, fm~sole purpose of gratifying his perverse, deviant sexual appetites. And, because hi"~n-practiced drugging technique was ve1y effective, he now ~~ comes to this Court ~ng that the claims of the Assault Victims be trivialized and ~~ disposed of nude~ rubric of the TCHRA, which was intended by the Legislature to provide an or# mechanism to deal with workplace discrimination and most certainly never in~d as a procedural means to protect deviant sexual predators. In seeking such a result, the Defendants brazenly ask for perfect immunity from personal, moral and legal responsibility for Morris' overtly criminal and intentionally tortious acts. What an astonishing extremis to twist a "Human Rights Act" into! 38 Both the previously denied MSJ and the instant Plea are factually predicated upon the Assault Victims' physical inability to remember all of the details of their victimization. But, such chemically induced diminished memory does not erase either the occurrence or magnitude of their violation; it only emphasizes just how appallingly awfully they were treated. Defendants' persistent pursuit of summary and/ or proced~"~ief on this dismissive basis defies logic and common sense and is fatally defec~~r four important nea~~entical, even though reasons. First, the stories of all of the Assault Victims are they were separate in time, place and victim; which very ~~cingly establish Morris' modus opemndi, as well as his malevolent, confessed ~~anal conduct. Second, these allegations are further confirmed by the depositi~rin McMullan, Andrea Farmer, and Samantha Gluck, the latter two being ad~~al assault victims who do not happen to be plaintiffs in this case. So, thus f~y five victims corroborate Morris' vile conduct.' 2 Third, no less than a grand j~f the United States of America considered the fractured memories of the thoro~~raumatized Assault Victims and came to the polar opposite perception of such~ch Defendants now urge upon this Court; finding sufficient cause to indict~ on multiple federal felony charges which precisely mirror the actual claims eac~~ntiff makes. And, fifth, Morris has already pled guilty to this ~ entire disgusting ~~rio! b. PlaintL~ssert g"'l' valid assault claims against Morris under Texas law. T~~ should be clear that not one single Plaintiff asserted any claim whatsoever which is based upon or arises out of sexual harassment in tllEi worl-~onstrate any resulting physical injury. Fisher, 424 S.W.2d at 630... ,:~ ~- Similarly, in Fisher we applied the same nWecause 'personal indignity is the essence of an action for battery;~nd :~equently the defendant is liable not only for contacts which do actual ..' cal harm, but also for those which are offensive and insulting.' 424 . . d at 630. Each of these decisions rejected arguments that proof of ll>Jl'Ys cal injury should be required. This is because torts inherently involvi~ental anguish claims demand proof of mental anguish, not physical oain. (Emphasis added)," ·(jfY Moore, 684-85. . ~Y c. Plaintiffs assert v~qxemplary damages claims against Edible. Further·, in Fis~Q~ Supreme Court recognized the liability of a tortfeasor's employer for exemp~'V damages in certain circumstances, including the precise facts of o~({?' the instant cas~U "WE·' turn to the question of the liability of the corporations for e ary damages. In this regard, the jury found that Flynn was acting wit n the course and scope of his employment on the occasion in question; that Flynn acted maliciously and with a wanton disregard of the rights and feelings of plaintiff on the occasion in question .. , The jury further found that the defendant Carrousel did not authorize or approve the conduct of Flynn. The rule in Texas is that a principal or master is liable for exemplary or punitive damages because of the acts of his agent, but only if: 44 (c) the agent was employed in a managel'ial capacity and was acting in the scope of employment... The above test is set out in the Restatement of Torts s 909 and was adopted in King v. McGuff, 149 Tex. 434, 234 S.W.2d 403 (1950). (Emphasis added)." Fisher, at 630. See also Moore v. Lillebo, 722 S.W.2d 683, 685 (Tex. 198~ty of Tyler v. Likes, 962 S.W.2d 489, 495 (Tex. 1997); Pleasant Glade Assembl~d v. Schubel·t, 264 S.W.3d 1, 16 (Tex. 2008); Texas Dept. of Pub. Safety v. Cox'[~ Newspapers, L.P., 343 S.W.3d 112, 115 (Tex. 2on). ~ • c?@ d. Even if Texas law did not authorize assault~~s, under its choice of law rules, such claims still exist under th~~ ohelevant states. Assuming arguendo that the TCHRA and f/' House are somehow determined to bear on the instant claims, the intentional tofts Morris committed against each of the ~"' Plaintiffs occurred in states other than ~; and, as confirmed by the Superseding Indictment now pending againstMor~nd his confessed guilt, such intentional torts give rise to claims governed b~~aw of the state in which each attack occnrred. Therefore, under Texas' choi~aws rules, the law of the respective assault situs states should control; and, as h~~er discussed, each state's law allows for the claims here rg~ asserted. Q In Gutien~ollins, 583 S.W.2d 312, 318 (Tex. 1979), the Texas Supreme Court overruled lex~~elicti, in tort actions. In its place, the Court parsed the many available alternat~ories and ultimately decided that: "in the future all conflicts cases sounding in t01t will be governed by the 'most significant relationship' test as enunciated in Sections 6 and 145 of the Restatement (Second) of Conflicts." I d., at 318. Each case's contacts must be considered individually and, although being often fact- intensive, is a matter oflaw to be decided by the court. Jd., at 319· More, in subsequent 45 decisions, the Supreme Court emphasized that the application of the contact factors is not a mathematical calculation of totaling contacts; but, instead must focus on the most significant contacts. In 1984, the Supreme Court decided Duncan v. Cessna Aircraft ~~65 S.W.2d 414 (Tex. 1984). That case involved a tort, a fatal air ct·ash; but, i~~ contained a significant contract issue, the issue of enforceability of a release. P~Ying to that issue, o\Qj the trial court determined that New Mexico law controlled. T~stin C.C.A. reversed o@gl and ruled that Texas law governed the release as it was e~ed in Texas; and that the rule of lex loci contractus required the law of the place ~ making of the contract. Both parties appealed that decision, arguing that: "the~approach is the most significant . relationship methodology of the Restatement~ond) of Conflict of Laws, which w[as] adopted in Gutierrez v. Collins, 583 S.W.2rl'~ (Tex.1979), for tort choice oflaw issues." i;,g I d., at 420. g The Supreme Court reite~tlits holding in Gutierrez that the rule of lex loci delicti, (application of the la>~re the wrong occurred), was simplistic and arbitrary and often led to inequitab)R~ults .in a modern, highly mobile society. It noted that the ©~ "significant relationsh~ethodology" of §§ 6 & 145 of the Restatement (Second) of ~· Conflicts "offers i~onal yet flexible approach to conflicts problems, ... represents a collection of tf~t thinking on this subject ... [and] include [s] "most of the substance" of all the~~rn theories.' [Gutierrez], at 318." Duncan, 665 S.W.2d at 421. Therefore, for uniformity and because all of the lex loci rules presented impermissible problems, the Comt abandoned all such rules for Texas conflicts analysis: "Consequently, the lex loci rules will no longer be used in this state to resolve conflicts problems. Instead, in all choice oflaw cases, except those contract cases in which the parties have agreed to a valid choice of law 46 clause, the law of the state with the most significant relationship to the particular substantive issue will be applied to resolve that issue," Duncan v. CessnaAilocrajt Co., 665 S.W.2d at 421.See also Torrington Co. v. Stutzman, 46 S.W.3d 829,848 (Tex.2ooo); Drennen v. Exxon Mobil Cm'P., 367 S.W.3d 288, 294 (Tex.App.- Houston [14th Dist.] 2012, reh'g denied, review granted Aug. ~013). Thus, the trial court must decide the issue in the first instancedtermination of the facts, to which the Restatement sections are then applied).);h..t, that decision of o~" whether to apply Texas law is reviewed on appeal de novo. (Sg?~mesota Mining & Mfg. Co. v. Nishika Ltd., 955 S.W.2d 853, 856 (Tex.1996)).~Q~umber of contacts is not determinative; as some contacts are more important~~ ~'>H others because they "implicate state policies underlying the particular substant~ssue. Consequently, selection of the applicable law depends on the qualitative ~~of the particular contacts. [Gutierrez1 at 319," Duncan, at 421. ~U Then, in Hughes Wood Pr·od1jff!jf4nc. v. Wagner, 18 S.W.3d 202, 205 (Tex. 2000 ), the Court added that: .e."'-0 . ~ "[T]he Restatement r~Qres the court to consider which state's law has the most significant ~f~onship to the pw·ticular substantive issue to be r·esolved. See ~~tement (Second) of Conflict of Laws § 145(1) (1971), Section 145(1)~cifically provides that '[t]he rights and liabilities of the parties with i'Mpect to an issue in tort are determined by the local law of the state v.~hic£@fth respect to that issue, has the most significant relationship to the renee and the parties under the principles stated in § 6.' Id. (emp~ [the court's]); see Duncan, 665 S.W.2d at 421." Wagne~~05. As stated in Duncan, "In applying § 6 to this case, we must first identify the state contacts that should be considered. Once these contacts are established, the question of which state's law will apply is one of law. Gutierrez, 583 S.W.2d at 319. Moreover, the number of contacts with a particular state is not determinative. Some contacts are more important than others because they implicate state policies underlying 47 the particula1· substantive issue. Consequently, selection of the applicable law depends on the qualitative nature of the particular contacts. I d. at 319." I d., at 421. In pe1forming a Restatement Sec. 145 analysis of the contact factors involved in this case, it is true that the relationship between Morris and Edible awe Assault Victims is centered in Texas and all of the parties are residents ofTexa~ell. However, the specific confessed criminal conduct of Morris which give rise o(\j t~VPlaintiffs' claims and the place they were each injured is the remote location ~e each was attacked. o@;j) While Plaintiffs firmly believe Texas substantive law afforqem viable assault/battery claims; in the event it does not, clearly the most ~-~ si!'>~""nt contacts militate for the -~ application of the law of the state where the att~Qfccurred. Each of those states has strong criminal sanctions and fully viable tor~ to which authorize these claims; and, justice requires the application of that tor~which affords to Plaintiffs the fairest and fullest opportunity to be made whole. ~ However, in Vanderbilt J. & Fin., Inc. v. Posey, 146 S.W.3d 302, 313 (Tex. App.-Texarkana 2004, no pe~e court noted that before a conflict of laws analysis commences: on other grounds by In re United Sm·vs.Auto.Ass'n, 307 S.W.3~9 (Tex.201o); see also ~IS2; Waffle House, Inc. v. Williams, 313 S.W.3d 796, 804 (Te4) (citing Schr·oeder·, 813 S.W.2d at 487)." Dworschak v. Tr·ansocean Offsho~epwater Drilling, Inc., 352 S.W.3d 191, 199-200 (Tex.App.- Houston [14th Di~11, no pet.). Within the facts of the Assault Victims' ~cularly poignant claims arising out of uniquely egregious facts, the result of an~·oper application of the TCHRA (Labor Code) limitation period would be si~arly pemicious. The Supreme Court has m~sual of circumstances' is conduct so extreme and admonished that: "Only 'in the outrageous that it is removed~~ the realm of ordinary employment disputes. GTE Southwest[, Inc. v. Bruce]<~ S.W.2d [6os,]at 613 [Tex.1999]." Wal-Mart Stores, Inc. o~ v. Canchola, 121 S.W.3~5, 741 (Tex. 2003); Dworschak, 352 S.W.3d at 198. However, ~ . it is difficult to l~ conduct more extreme or outrageous that what Morris did to the Plaintiffs. And\6~ectfully, to argue the application of a completely irrelevant statute for the avow~pose of contorting the assaultjbatte1y claims into mere workplace sexual harassment claims for the self-serving, sole purpose of extinguishing completely valid and especially serious claims would be the height of injustice. Once again, the relegation of the raping of drugged, insensate women to a mere employment grievance cannot possibly be what the Legislature had in mind in enacting the TCHRA, which is emphasized by the 71 statute's very name: the Texas Commission on Human Rights Act! And, Defendants do not, because they cannot, direct the Court to one single word in that statute, its legislative history or any decision applying it, which mandates such a cruel and inhuman result. In a substantial footnote, in Texas Mut. Ins. Co. v. Ruttiger, 381 S.~ 430, 461, n.3 (Tex. 2012), reh'g denied (Sept. 21, 2012), the Supreme Court expre~~ome serious a~~tjbattery claims policy considerations which bear directly upon Plaintiffs' instant and neatly concur with evety argument Plaintiffs herein make: ~ oights unless the Legislature clem•ly~f!i\Pl'essed that intent.'3 I d. _Q» 3 We have app].i,e§l)Jhis framework repeatedly. For example, in Lopez, which the Cou~ites but then seems to forget about, we noted that "[w]hether mgulatory scheme is an exclusive remedy depends on whether.;'t~gislature intended for the regulatory process to be the exclu~i ~a~ for remedying the problem to which the regulation is addre?, . " City of Waco v. Lopez, 259 S.W.3d 147, 153 (Tex.2008) (quo ·. In re Sw. Bell Tel. Co., 235 S.W.3d 619, 624-25 (Tex.2007)) (~ asis added). Likewise, in Waffle House, Inc. v. Williams, 313 S.W3d 796, 802 (Tex.2010), we held that 'the legislative creation of a statutory remedy is not presumed to displace common-law remedies. To the contrary, abrogation of common-law claims is disfavored.' Acknowledging the centrality of legislative intent, see id. at 809 n. 66, we looked at the statute's 'meticulous legislative design,' id. at 8os. Similarly, we have held that 'absent clear legislative intent we have declined to construe statutes to deprive citizens of common-law rights.' Deale1•s Elec. Supply Co. v. Scoggins Constr. Co., 292 S.W.3d 6so, 66o 72 (Tex.2009) (emphasis added), We have also Wl'itten that 'statutes can modify common law rules, but before we construe one to do so, we must look carefully to be sure that was what the Legislature intended.' Energy Ser·v. Co. of Bowie v. Superior Snubbing Servs., Inc., 236 S.W.3d 190, 194 (Tex.2007) (emphasis added); see also, e.g., Emps. Ret. Sys. ofTex. v, Duenez, 288 S.W.3d 905, 919 (Tex.2009) (the proper inquiry is legislative intent); Pruett v. Harris Cnty. Bail Bond B.~9 S.W.3d 447, 454 (Tex.2oo8) (same); Butnaru v. For·d Motor• ~ u4 S.W.3d 198, 208 (Tex.2002) (same). (Emphasis added)." ~!(@ ' R uttiger·, at 4 61, n.3. ~ 0 .~~ And, in Perez v. Living Centers-Devc:on, Inc., 963 S.W.2~, 872 (Tex.App.- San o@j Antonio 1998, pet. denied), the court made clear tha~he TCHRA pPohibits employment discr•imination on the basis of'J•a#olol', disability, Peligion, sex, national ol'igin, OJ' ~ age.' Tex. Lab. Code~ _ 21.052 (Vernon 1996). The act essentially codifiedfederal employme~Jf;!:,W.V· Compare 42 U.S.C. § 2000e (1994) (prohibiting employment discrimination~e basis of race, color, religion, sex Ol' national origin),§ 12101-213 (1994) (p~biting employment discl'imination on basis of disability) and 29 U.S.C. §§ 621~~994) (prohibiting employment discrimination on basis of age), with Tex. Lab~e Ann. § 21.052 (Vernon 1996) (prohibiting same conduct)." Id., at 872. Th~~l Jackson v. Creditwatch, Inc., 84 S.W.3d 397, 402 (Tex. ©!"" App.-Fort Worth 2o&iilrev'd in part, (on unrelated grounds) 157 S.W.3d 814 (Tex. 2005), the CCA nl'that: "The Pe1•ez court examined the legislative histm·y and legislatrfntent behind the enactment of the TCHRA and concluded: ''Notab~ithe1• an intent to se1•ve as an exclusive remedy, no1• an intent to preclude common law causes of action, is contained within the stated purposes ofthe TCHRA. Additionally, the statute contains no provision that implies the TCHRA 's adminish·ative 1·eview system p1•ecludes a lawsuit for common law causes of action. Instead, the opposite proposition can be 73 impliedfi•om section :u.211. (Emphasis added)." Id., at 402. Therefore, once again, there is nothing in the TCHRA's "meticulous legislative design" which purports to justify Defendants' tortured reading of it merely to argue insulation from liability from utterly appalling misconduct; indeed the very argument of such is a slap in th~ce of every mother, wife, sister and daughter in the State of Texas. ~rif§ The Assault Victims were not harassed or discriminated agai~~eywere sexually o\Q violated, physically abused and emotionally humiliated. This~ is not about being olf'@ patted on the fanny in a kitchen, as occurred in Waffle H~ or being made to suffer annoying locker room humor directed disparagingly at~en, or not getting a raise or promotion because of a gender-based glass :J c~ _. Rather it is about the \1lest degradation imaginable for which the law prnVliles significant criminal sanctions in 1::~ addition to ci~l liability. Morris and ~e must be made to answer, to take ~ally accountable in a court of law for their responsibility, to be held legally and reprehensible conduct. As the EloP~ CCA said so eloquently in the fearful days just ~ months before the Japanese a~ on Pearl Harbor plunged the nation into the darkness and terror of world war: "I~ the pwpose of the law to provide a remedy for g~ every legal WJ•ongfr:i)hd the desi1•e of the courts to see justice done and ~~ litigants given Pc!Ji· day in com•t. It is too often the regret of the courts that they ar•e p#•less to protect against the ovm•sight and omissions of litigant~ thei1• counsel. When it may be done without doing violence to established J•ules of law, then a sense ofjustice and duty compels it·.'' Payant v. C01pus Christi Plaza Hotel Co., 149 S.W.2d 665, 667 (Tex. Civ. App.- El Paso 1941, writ dism'djudgm't em·.). See also In re VarTec Telecom, Inc., 335 B.R. at 642, In conformity with that noble mandate, the Assault Victims most earnestly request this Court to allow 74 them to seek true and fair justice in the resolution of their legitimate claims on their merits by denying Defendants' Plea. II. Under Miranda the Plea Should Be Denied: Defendants' contention that Miranda's analytic rub1·ic mandates dismissal of the Assault Victims' claims herein in incorrect as explained in not only Mil'~~tself, but in three very recent Houston C.C.A. decisions applying it as well. ~U ortj In Mimnda, the Supreme Court did articulate the anal~( rubric Texas courts ' determmmg must app1y m . . JU!'IS ' ' dictwn. ' ' h af&:@j) To procee d Wlt ' 1 court must ~'ease, the tna have jurisdiction over the parties and the subjecto~er, Id., at 226; and, that determination is a question of law, Id.; but~tantly, "disputed evidence of jurisdictional facts that also implicate the meritsnal summary judgment. I d. at 228. Under this standard, we credit afhol~all evidence favoring the nonmovant and draw all reasonable infer~~ in the nonmovant's favor. Id. The movant must assert the abse~ of subject-matter jurisdiction and present conclusive proof that t~e ti'ial court lacks subject-matter jurisdiction. I d. If the movant dischar~~llis burden, the nonmovant must present evidence sufficient to raisy,J\._~'liuine issue of material fact regarding jurisdiction, or the plea 'vl'ill be~tained. I d. As with a traditional motion for summary judgment, if t avant fails to present conclusive proof of facts negating subject-mat urisdiction, the burden does not shift to the nonmovant to establis~ xistence of an issue of material fact. See id." King, at 5· §::rg Fu~r, in HorizonjCMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 897 (Tex. 2000 ), the Sup1•eme Court stated that: "Texas follows a 'fair notice' standard for pleading, which looks to whether the opposing party can ascertain from the pleading the nature and basic issues of the controversy and what testimony will be relevant. See Broom v. Brookshire Bros., Inc., 923 S.W.2d 57, 6o (Tex.App.-Tyler 1995, writ 76 denied) ... 'A petition is sufficient if it gives fair and adequate notice of the facts upon which the pleader bases his claim. The purpose of this rule is to give the opposing party information sufficient to enable him to prepare a defense.' Roark v. Allen, 633 S.W.2d 804, 810 (Tex.1982). Auld, at 897. Miranda merely amplifies the long-prevailing standards for. ~ial court's evaluation of a plea to the jurisdiction; which standards remain very~h intact, post- Mimnda, as the following case law explains. In City ofAustin v.t!Jras, 160 S.W.3d 97, 100 (Tex. App.- Austin 2004, reh'g overruled), (relying onMh~~~), the court noted that: "In reviewing a trial court's ruling on a plea to th~sdiction, we do not look at the merits of the case; rather, we constr~e pleadings in favor of the plaintiff, look to the pleader's intent, and~pt the pleadings' factual allegations as true. TexasAss'n ofBus. v. Te§B~ir· Control Ed., 852 S.W.2d 440, 443 (Tex.1993). A jurisdictional challen~ may implicate the merits of the plaintiffs cause of action. See T.~~Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex~ ). If evidence raises a fact issue concerning the court's jurisdiction;f' II' uld be inappropriate for the court to grant a plea to the jurisdiction.~"< t 227-28." Id., at 100. Similarly, in Timdo v. Ci'#Jl9El Paso, 361 S.W.3d 191, 194-95 (Tex. App.- El Paso 2012, no pet.), the court rei~d that: "The existence of suif' 9matter jurisdiction is a legal question which we review de novo. Mir , 133 S.W.3d at 226-27; State Dept. of Highways and Public Tmn~ . Gonzalez, 82 S.W.3d 322, 327 (Tex.2o02). In conducting our ~ew, we do not look at the merits of the case but construe the pleadings ~erally in favor of the plaintiff, look to the pleader's intent, and accept ~.11ld J. Bradley, Clerk of Court..• UNITED STATES OF AMERICA vs. § ~ CRIMINAL NO. H-l@ss Jt § ~ HENRI DE SOLA MORRIS § ~ <6~ ~ SUPERSEDING INDICT~T Qi@} THE GRAND JURY CHARGES THAT: o"'-:f@ u &UN1'1 ~~ @! On or about February 27, 2~Q.,ithin the Southern District of Texas, and elsewhere, U HENRI MORRIS ~ defendant, knowingly attet~ to transport, an individual, KH, between Texas and New York, with intent that KH 0 etlM~in sexual activity for which any person could be charged with a ~@'- criminal offens~~fically "Improper Photography" in violation of Texas Penal Code § 21. 15 and "Sexua~use in the f1irst Degree," in violation ofNew York Penal Law§ ! 30.65. ~ All in violation of Title 18, United States Code, Section 2421. EXHIBIT l1 ,~ c ,, ll r Case 4:12-cr-00255 Document 67 Filed in TXSD on 08/05/13 Page 2 of 3 COUNT2 On or about January 8, 2012, within the Southern District of Texas, and elsewhere, HENRI MORRIS defendant, knowingly transp01ted, and attempted to transport, an individual, KH, ~en Texas and New York, with intent that KH engage in sexual activity for which any -·~could be py charged with a criminal offense, specifically "Sexual Abuse in the First Q-~." in violation of New York Penal Law§ 130.65. o lf!}~ Q~ All in violation ofTitle 18, United States Code, Secti~~l. 11!~ Qy cou~ On or about November 8, 20 I 0, within ~uthern District of Texas, and elsewhere, ~· HEJ\~ MORRIS .@! defendant knowingly transported, an~pted to transport, an individual, DM, between Texas and New Yark, with intent that D~1gage in sexual activity for which any person could be charged with a criminal offe~ecifically "Sexual Abuse in the First Degree," in violation of New York Penal Law §~Ys. o{? All in via~ of Title 18, United States Code, Section 2421. ~g ~ COUNT4 On or about February 8, 2010, in the Southern District of Texas, and elsewhere, HENRI MORRIS 2 Case 4: 12-cr-00255 Document 67 Filed in TXSD on 08/05/13 Page 3 of 3 defendant, knowingly transpo1ted, and attempted to transp01t, an individual, SG, between Texas and Pennsylvania, with the intent that SG engage in sexual activity for which any person could be cha!'ged with a criminal offense, specifically "Indecent Assault," in violation ofPennsylvania Consolidated Statutes§ 3126. All in violation of Title 18, United States Code, Section 2421. o #} a lJf * ~~~ COUNTS On or about May 8, 2011, in the Southern District if ofT~, and elsewhere, HENRIMO ~ RR~ defendant, knowingly transported, and attempted to~port, an individual, AF, between Texas and New Jersey, with the intent that AF engagt(~ual activity for which any person could be charged with a criminal offense, specific~~nvasion of Privacy," in violation of New Jersey (@ Statutes Annotated 2C: 14-9 (b). ~ All in violation of Title 18~7ted States Code, Section 2421. 00~ ~ o~OJ A TRUE BILL ~u ORIGINAL SIGNATURE ON FILE ~0 ~URbPERl'lON OF THE GRAND JURY agidso tes At 3 Case 4:12·cr-00255 Document 129 Filed in TXSD on12/03/14 Page 1 of 16 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION UNl'l'ED STATES OF AMEIUCA § v. HENRI DESOLA MORRIS, § § § § CRIMINAL NO. ~u * 12-255~ ~ Defcndnnt. § PLEA AGREEMENT Q~ The United States of America, by and through Kenneth~gtdson, United States Attorney O~v for the Southern District of Texas, and Sherri L. Znck m~~ll\e Ehnilady, Assistant United States Attomeys, and the defendant, Hemi Morris CQ~tdant"), and Defendant's counsel, Dan 0~ Cogdell, pursuant to Rule ll(c)(l)(A) of the Fe~~ules of Criminal Procedure, state that they . u have entered into an agreement, the tenus m~onditions of which arc as follows: g Dc~aut's Agreement 1. Defendant agrees to p~i!ty to Count Five of the Superseding Indictment. Count Five charges Defendant with T<~sportation, in violation of Title 18, United States Code, Section 2421. Defendant, by ct~his plea, agrees that he is waiving any right to have tl1c facts that the law lll'\kes esseo~ the punishment either charged h1 the indictment, or proved to a jury or o(CJJ proven beyond ~~onablc doubt. §:;:g Punishment Range ~ 2. The ~tatutory maximum penalty for each violation of Title 18, United States Code, Section 2421, is imprisonment of not more than 10 years and a fine of not more than $250,000.00. Additionally, Defendant may receive a term of supervised release after imprisonment of at least 5 years aad up to Life. See Title 18, United States Code, sections 3559(a) and 3583(k). Defendant Case 4:12-cr-00255 Document 129 Fllecl in TXSD on 12/03/14 Page 2 of 16 acknowledges and understands that ifhe should violate the conditions of any period of supervised release which may be imposed as part of his sentence, then Defendant may be imprisoned for the entire teml of supervised release, without credit for time already served on the tenn of supervised release prior to such violation. See Title 18, United Stated Code, sections 3559\~ld 3583(e) ·~ and (k). Defendant understands that he cannot have the imposition or cxec~'iravcl for business. ~ ·~ Durh1g the execution of the wanant, several items ofevident~ue were found. Three (3) fifty (50) milliliter Jack Daniel's bottles containing a clear li~~vhiclilab tested negative for o(@j controlled substances, were located in MORRIS' carry on s,~sc. MORRIS, having heard a WI conversati011 between two agents about the fact that Ja~niels is not a clear liquid, stated something to the effect of" ... , there could be a p~ reasonable explanation for that." . MORRIS used the unknown liquid to dilute t~~gs he administered to A.F. by adding it to the alcoholic drinks he supplied to her. !f7!»!!;) The search also uncovered hl~ackages containing pills. .~~ One package contained, within four (4) individual blist~\fue diamond shaped tablets marked "VOR 50" or "VGR 5,0" imprinted on one side. ·0~~lls appear to be the erectile dysfunction drug sold co!nmercially as Viagra. A four se~Iw blister pack with one missing tablet wus found which contained ¢~@'· Tadalafil. This~1ysician's sample of the drug commercially known as Cinlis, another erectile dysf~on drug. l~ unmllrked prescription bottle, located in MORRJS' belongings but not contained in the compartmentalized pill box he also possessed, were 5 pills. These pills were analyzed by the Drug Enforcement Administration. Two of the pills were determined to be Zolpidem which is 7 Case 4:12-cr-00255 Document 129 Filed in TXSD on 12/03/14 Page 8 of 16 commercially knoWll as Am bien. One of the pills was determined to be Oxazepam, a benzodiazepine. The remaining two pills were determined to be diphenhydramine; this drug is commercially known as Bcnadryl. FBI Supervisory Forensic Chemist/Forensic Toxicologist Marc Lebeau, an expert in drug facilitated sexual assault, reviewed the facts ofthi~e and the toxicology results and determined the symptoms described by the victim arc c<>~ent with her . Q"-· being administered these drugs in combination wiU1thc ingestion of alcoh"~ 0~~ The Society of Forensic Toxicologists defines drug-1acilitate0~al assault (DFSA) as "when a person is subjected to nonconsensual sexual acts whileigre incapacitated or 0~ unconscious due lo the effect(s) of ethanol, a drug and/or oll~noxicating Sltbstancc •md arc therefore prevented from resisting and/or unable to con~ w The Society of Forensic Toxicologists further identify the following as typi~~ptoms of DFSA: drowsiness, dizziness, loss of muscle control, slurred speech, decrci~bitions, memory loss or impainnent, loss of consciousness, and vomiting. The Socie~~orensic Toxicologists compiled a list of drugs, in addition to ethanol, as known to hav~ associated with Dl'SA. The drugs found on MORRlS at IAH arc on that list. ~Q A.F. was employed ~ible Sollware from May 2011 through August 20 II. Approximately one w~Qcr o@J beginning hired and pursuant to a work assignment she had received from M~~· A.F. traveled with MORRlS to Philadelphia, Pennsylvania. Continental Airlines coni~ that MORls~lib~> I<> til~ }loudonCtlrnnl~lf! I Sll~pplng I Classllieds I Obils IPlace en .Ad )laVoz · ·.68'F Overcasll Hovston l'luthu Homil I lot~ I I US &World I Spvrt~ I Buslneu 1Entertainment I Life:otyle I Jabs I Cars I Rw.l e-s.tate Software exec pleads guilty to drugging, abusing female employees By Dane Schiller) D~X:ember 3, 2014 J Upd3ted: December .3, '2014 l:OBpm cos-mn~nls . E-mall Prill\ Texas Home Insurance Lntt:sl Vid~os A former l{ouston soltwareC(Impanyexeeutlve pleaded (IUll\yWednecday to drugging Md ~exu~lty abusing a Whii\Youl.lln~-02!9201S_MA!N female Employee- stoppil\9 11 federal trial bef()(ethe ~-.;C.'l""""'\1 lirsl of as man)''llS u half doaenwornenwr;rl! to tes111y agalnsl him. HenriMouls. f1umerly the head of Eilib\e SOftv1nre Solution I', now faees uptt~10year$ln prlse>n and a $ZSO,OOO fine. He a]SI) h~s I01~i$lct for the 1estofhls life as a se>roflender. Mwis, 1>7, was slumped fo!Word in Ills clla!rln the courtroom, appe~red to hvetrotJble bre.1.1hlng, and 1t1as shaking u hlslawyershuddled wlll'l pros~cutors to humm~r out an agreement with prosE~utors. Relnted Stories 6y adm)Uing~owhat he did to one of the we moo, pnJ:t~ecutors d"ropp('d tfie r.lher eharges ·and s11ared all !rial &tarts fur tJC softWare e.x~aecusW of of them f10m M.vfng topubliclyte.otifyabovt lite C>altol drugging, sexuaUy .abuslJl!lemployoo' as well as wharlooked to be a grueliflg C/09$· Jud9e revokes bond for exec a~u'ed of examlnat!r.n by l.lnrris's fe~al teall'l. drugg:Tng female employe!!$ Whfle Mor(i9 was shaken, hlsviolim$ and \hell ramllles Softwareeomp~nl' cllleft\dmltt to drugging corMQrted each other snd shared u fe~ling r.f Jennlf~r Anirlon's Bikini four female empli:>yeM for sex abuse: vlndiwthm. llod lhrough the Ag~'>l [U$\\'e-el1her wom~n &nd th&lrfamlllMY;ho li11ed the first two rows of the CCIUrtr\Xln1 ltiGitor set~lin!,l ~rea. u.s. District Judge Meliml~ Hannon, who told Morris hel~ould be b~ck Tn hercOllrtroom In February for sentencing, had r~ected a plea agreemeJJt last ye~rthat would hve capped hl~prison lime atoneyear.After hurit19' his victimG testify at 11 sentencing hearing, Harmon uldlhe Ca$e would ffistead pr()ceed to tri~t Top Stories Uurin11 openin~t9rgvments TUWd~,PfOsecl>tOJr Sberri Zack told jurors th~l Morris was a c~lculallnll sexual predator WhCltooll a 'rape kit' on bu$ineS$ trip$\0 rai~~em,l)loyee'$ driflhwith dru~s and later <1bv$t them I phys!cally,!neluding tal< e. photograph; of their nutle bl)diu. -K::.,,. 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\"'"""" ,.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$hlgtrtl'iilsiJ~s'.heHouston COntribute to this sloty. SEond u~ a tlp Su~~llli$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 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~W 10 10 sort of sports gnme on. So notblng substantial, 11 Q. DidymJ~~..-\vlmtroomhewasin? 11 Q. Okay. This is a Sunday night }~all are getting " A. No~~ l\! in there. 1J " CO PORTER: I'm sorry? A. Uh-hul1, 14 Q. ~ . Rosenberg) Did yo11 know-- my question 15 wa~. ~~U know what room he \VfiS in? And then your ",, Q. How long was the business trip to Iast? A. Okay, let me think. I guess we were to be back 16 lm~o that question was? 16 that Thursday ewning, 17 A. No. Q. Okay. Without going through every bit of 10 18 Q. Do you know if he knew what your room was? detail about the trip and the clients and the customers 1 ~ A. I assume he did. He chedtcd 11s in, 1 '.1 you've seen, 1 want you to tell me the frrst thing that 20 20 Q, After you got situated in your room, I imagine happened on that trip. So it's the one that ended, you 21 21 you just got to your room, did what you had to do, and believe, the Thursday evening? 22 went somewhere. " A. Uh-hub. Wdl, we ended up getting back that " A. Uh-huh. 23 Thursday morning, becntlse the last client canceled, so 'i\'C Q. Correct? 24 took an earlier flight thnt Thursday, A. Yes. Q. 1'd like you to tell me anything that l111ppened O,S. LEGAL SUPPORT RIO GRANDE VALLEY -(800) 881-0670 CORPUS CHRISTI - ( 361) 883-1716 ANDREA FARMER 7/11/2013 21 (Pages 81 to 84) 81 83 1 1 duriElg that trip that you believe to be sexually to lUre pat and lll picture orr ofhere, 11 but I couldn't tYCn think to work 4 ~lamllug over me, and I'm naked. U 4 lhe BlackBerry. And so I Wftli Sr;t tlrerl, arnl I just u~t enn So 1 Just handed it back to him, ~ncl I was lilu•, ~ a·e.all)' nglster what was going o tblnk I like (; "You JICCd to lea\'C, 11 And I sbut fbi! t1oor and locked 11·, 1 lor.~kcd .find then closed my eye 1 and then went back in bed and like lnld there for a 8 llke, "W~tit, Pm not 11 --Ill ...-:r\ t's. going on?" e second thinking like, "What iu the world just happeDed?'' 9 Ami so I was lik<'1 PQ{Wtl··up, and I was like, "Whn.t 9 And tll~n l fell back aslt:ep for like four hours. ~ 9 are you doing? Are~XW~id youjnsf lake a plclure or Q. Okay. I appreciate your recollection of the 11 rue? 11 (f'~(}! n transactimt1 but I want to go back. 12 And be Wllf< ~'hnt? No, no." A. Uh-hnh. 1~ And l was J1 WJ1y are you i.n here? What are you Q. The Jast recollect1on you have before waking up 14 u doing?" ef out of here, get out of hue." l was with the blanket around you, and as you've described for S like, '~.1\~'1: 1 10 \'e to get the picture." us, without nny clothes on-· u An~as so disoriented and so confused, and tlte A. Uh-hult, 17 bed was just like really, like the cm•ea-s were all Q. ··what's the last recollection you had? H fluffed up and there were pillows aU around. And .so I A. I remember beiug at dinner, and I~ it's like 19 19 wnsjust like looking around, and Thad the covers pulled really fuzzy. Like I real!)' don't remember a lot, but I 29 around me, and I was like1 11 Yop need to gh•e me that zo remember tlaerc \Yas some comedian there, and that Henl'l 21 camera. You can't ha\'C thRt picture." ~ 1 llkt:d himf and he- was like tnldng pictures of him and 22 " He was like, "No, no, no. It's flne. lt's fine. I talldng to him. 23 didn't ta!re a picture. I didn't take a plctnrr, 11 But it feels Jlke1 Ul{e I remember it and I lmow I 24 "25 So then I don't see the p'hone anywhere, and il\'!i 25 was present and I Jmow I was talking, but I don't know ldtld of dark in the nwm, And so l'mllke kind of trying n·hat I was talking about or ifl was making any scosc or U.S. LEGAL SUPPORT RIO GRANDE VALLEY -(800) 881-0670 CORPUS CHRISTI - (361) 883-1716 ANDREA FARMER 7/11/2013 22 (Pages 85 to 88) 85 87 1 1 anything. But l know that there was a comedian there 1 Q. All right. We know three things. We know that 2 2 and I know thnt I was sitting at like a table. this is a picture of you and somebody. Rlght? ~ (Exhibit 1 mnrked for identiflcatlon,) :.l A. (Nodding head,) 4 4 Q. (By Mr. Rosenberg) Take a Jook at Exhibit l to Q. Correct? 5 5 your deposition. A. Uh-huh. 6 A. Uh-hoh. 6 Q. Yes? 1 Q. What is that? 7 A. Yes. 0 A. Me and a man. 6 Q. And we know that this~ was taken the 9 Q. Doyouknowwho thoma:n is? 9 nightyou1re talidng about, be~e this is whntyou were 10 A. No. 10 wearing. rF~!f!l/"' ll Q. lsthat--doyourecallthatasbeingthe 11 A. Yes. y 12 12 comedian J.'OU1re referring to? Q. Okay. Wher~ you before that? Whatever 13 A. I mean, obviousl.)·lt Is who it M·lil\e -- 13 place this picture 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. 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 feelliljon 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 11 11\'e ne\'CI'1 ever, ever done Q. That was at the time your employment with 5 anything like this before, eYel'." Like stressing. He 5 Edible was ending. 6 was like, 11 Th is is the first one and, you know, I really A, 1 was stlll wol'klng the-re. 1 lllte you,,. Q. Close to the end, right? And fnllike, "No, this can never happen ngnin, and a A. Close to the end. I had e:h&kcd out at that 9 we can never talk about this again." point with them. .~ And he's like, "Well, you knO\\'t my DlllJTlage has been 10 Q. Whenyousayyou~out-- 11 O\'er fol' a really long time, anrl we dnn't talk, and ,..,.e ll A, Like I didn't wa~b the~'(!, I didn't want 12 haYe problems.'' 12 to be there. I didn't~ to see Henri. I dldTl't want anything to do~l·l ~at nil, And 1 was like, you know} "It 1·ea1Iy just doesn't 13 14 matter to me, any of that, It's wrong, and I don't want H Q. And whc ou check oUI? 15 it to happen again, Rnd I don't want to talk about It 15 A. After<); ew Orleans trip. 16 agnln. 11 Clc'N' H Q, \~s --remind me when it was. I'm sorry. 17 And be's like, 11 WeJ1 11 •• I was jus( like, "I just 17 A. .t ~be beginning of August. 18 u want to keep .om· relationship strictly }Jrofesslonal." n you went from Davidson to LaGuardia, a11d " And he was Uke, "Well, but I'm Jo-nely1 and I'm an 19 mg about the Marriott·· Right, 2.o affectionate per!lon, And If I want to gh·c you a bug, 20 /r 21 then I still want to be able to give you a bug." ~ , ·• in LaGua(dia, what time of day did ycm 1 was IJke, 11 You know, I really just don't feel ~ivethere? 23 cnmfortable with that. I really just want to keep our t:t ~ A. It was late el'enlng. I think it was Jil Q. On Ute television? :~. And I was like, "Probably not." ~\Q A. On tlle teJevJsion, And thc-re were a few people And so that was kind of that, lil, 11 0kay." 11 don•t know. I was just ~stwby does tl1fs ·-like " So I went and looked at the bottle, and It was a 12 trying to figure itout~d of, you know. Lll'e If you 13 \Yoodbridge Chardonnay, which is IIIH~ 11ngular house 13 Julve n glass nfwln~~'s kind of \'lriegared nnd you're 14 that~- I mean, \l"C carried it at the hotel that 1 worked 14 llke tasting it, li~""if vfnegared or is it not 15 at for five years, I'm verr familiar wltl1 the way that 1 1~ ~ vinegnred? 0 © 16 It tastes. And I was like, "Oh, this tastes so gross," So llu~· sips of It just h·ylng to figure out 17 you know. 11 _ ~on with it, nn!l tben I wHs like, "No, I whatif.'' So I'm kind ofJII'e holding It nnd not drinking It, HI just ~n ·ink this." 19 and lu~lplng Heurl nntlldlld of talking to some other " ~ got down to the bar, the hotel restaurant/bar 20 20 people about the basketball game nnd the concierge, Rlld a 1d I gave it to the waitress nnd asked her to 21 then we dedde fogo downst11lrs for dinner. ~' g me something e[S(\ and she brought men glass of 2 " Q. Let me stop you for a second. ~dwlne. ~1~ A. Uh-huh. Q. So you didn't drink the bad wine? Q. I don't mean to intem1pt you But have you •• A. Nv. Well, I had f1 few sips of it. 25 yme"e been in the food and beyera.ge bl1slness ;o~~" Q. Okay. A few sips is-- "0 ~8 120 1 tangentially in different places. llight? ~ ' A. Three. 2 A. Uh-lmh. a!f':z4iJ '; Q. •• tlOt u big quantity? 3 1 Q. Have you ever had wlne tlmt ~ oxidized? A. No, no. 4 Chardonnay? Q ' 5 Q. Okay. '""~ 5 A, It was !Ike barely any-- you eouldll't enn A. Yes. ' Q. Okay. You know wba\'':\J"~tnstes like? ti ten that I had any out of it. 7 8 A. llight. t9~ 1 7 8 Q. And then you chose vnrletals altogether .. you switched varietuls altogether. Q. Have you ever l e that S been, using the 9 tem1 "corked 11 ? ~ ' A. Rlgbt. 10 A. Yes. -~ "u Q. Anything else unusual happen that night? 11 Q. Okay. Y~&'6'w what that is? A. Well, Henri wns Uke ··the concierge lounge A. Yes.J:._~ 12 12 wns nboutto c-lose,nnd we ended up having dinner with 13 Q.~esc ~hat corked wine is. 13 14 these other two gentlemen. They were lll[e, work for this " 15 A. It' · d of like a, i1 tastes dil'ly. 15 llllblic speaking company. Q. ' . s not the taste you had? Q. Did you know them before ym1 g-ot tlterc? " " A. ·• Q. But oxidized? 11 A. Huh-uh. We just started taHdng to them, and 1 don't know how I started talking to them. Dnt I think 1 A. Oxidized is JjJ{e a stronget taste, but this is ~ rna)' be we were still wearing our Edlb1e Software shirts! 19 19 and they asked about it. And so we just got Jn n not Ute tuste. 20 20 Q. So you, you1re telling the, \vhoever is rending conversation about publlcspealdug. and the)' ended up 21 jolnlug us for dinner, 21 this or listening to it ~- , "23 A. I fcellll - just want to see ifl 11 "I need you to bring me those notes Immediately. 11 And so 12 can test your re J6n. Do you remember .any instance H I called the office, nntl Marlene, the front desk-- 13 after the tri-st , New York, New Jersey and 13 Q. Finkelstein? t;l you recaU learning that Henri did J\Ot " A. Yes. She answered, nnd she was like, "l'nl 15 0 }1>U? suppostd to tell you thn.f Henri doesn't wish to talk to 16 16 you." " 18 And I was like·· I thought, I honestly thought she A. We bad gotten back flt·lltte 10:.00 a.m., and I wn.sjoklng. Like whatever, like okay, bejustmustbe 19 19 b11sy or joking nrou.nd or something. told Hend that I wanted to go home and take a nap, 20 because 1 just felt so tired fl·om the fl"ip and And so I \l'as like, "Ob, hR ha. Okay. No, seriously 21 a Cl'Cryfhing, let me lnlk to Henrl. 11 " And M wns like, ''Oh, sureJ sure, SUl"'c.'' Site was like, "No, he doesn't w.ant to talk to you." " 24 Well~ Jt was my understanding ut the time, nnd it was similar fo this at Mattress Firm, and I had discussed And I was like~ 11 \\'bat for? 11 And she Wlls like, "Because you didn't com-e back Into 2 s. 25 this with them U]lOD hiring me, that if l was going to be the orflce." U.S. LEGAL SUPPORT RIO GRANDE VALLE.Y - (800) 881-0670 CORPUS CHRISTI - (361) 883-1716 ANDREA FARMER 7/11/2013 61 (Pages 241 to 243) 241 243 CAUSE NO. 2012-65503 FURTHER CERTrFICATION UNDER RULE 203 KERI HILL and IN TilE DISTRlCT COURT 3 Ute original deposition was/was not returned to the MICHELLE BARNETT I 4 Plainliffs § deposition officer on_-;--,=---=-.,----- § Ifretumed, the attached Chlillges illld Signature page 6 vs. § 5STII JUDICIAL DISTRICT contains any change.s and the reasons therefor; if 1 § rehliiled, the original deposition was delivered to HENR1 MORRIS and SOLID § " MR. GREGG M. ROSENBERG, Custodial Attorney; ' SOFnVARE SOLUTIONS, INC.• 9 That $ is the dep~~ officers charges d!b/a EDIBLE SOFfWARE § 10 to the Defendant(s) for preparing_~&Original deposition Ddendants § HARR.lS COUNTY, TEXAS 11 transcript and any copie.saf ~'iS; 12 That the deposition w ered in accordance with REPORTER'S CERTlFICATFJFILlNG CERTIFICATE 13 Rule 203.3, and that a co this certificate wns ORAL AND VIDEOTAPED DEPOSmONOF ANDREA FARMER 14 JULy ll, 2013 served on all parties s!m herein and filed with the 15 clerk. o~y- 11 I, MOLLY CARTER, Certili~d Shorthand Reporter in_ and 1' Certified to lw..&'1ws _ _ day of _ _ _ _ __ u for The Slate of Tens, hereby certify to 1he following: "2013. ,~ n That the witness, ANDREA FARMER, \\ru du!y swom by " 0~ ~Q 14 the offiecr Wld that the tra!lScript of the ornl 1 ~ Ueposhion is n true record of the testimony Biven b}' the :: E \\ilness; 0 ~ ~M~O~L,-Ly=c""AR""TE=Rc-,-=cs=Rc-,-=RP-:R,~C"'R""R 11 18 That the deposition transcript was submilled oo_ to the witness or 10 the attorney for the " "~ CSR NO, 2613, Expires 12-31-13 22 19 witness for ex!lmfuation, signature and return to U.S. 1;,~- U.S. LEGAL SUPPORT 2 (1 Legal Support by _ _ _ _ _ __; ~i.Qr Fim1 No. 342 11 Tlmt the amount of time used by each party at the ~ 802 North Carancahua, Suite 2280 22 deposition is as follows: 0 rf!:;;> Corpus Christi, Texas 78401 " 1\iR. JEFFREY N. TODD; (00:00) C'"d< Telephone: (361) 883-1716 " :MR. GREOO M. ROSENBERG: (03: 15) Fa" (361) 888-6550 " lviRDANCOGDELL: (01:26) " 42 1 That pursuant to infonnaticn given to the depos~ Q officer at the time said testimony was laken,~e following includes all parties of record: ~~ MR. JEFFREY N. TODD, Atlomey tift1s) ~GREGGM.ROSENBERG,A n yforDefendant(s) MR. OAN COGDELL, Attorney De'fendant(s) J ·further certify that I am neither l for, 0 related to, nor employed by any m-ties or 9 attorneys in the action in wl · 10 taken, and further that 1am nncially or otherwise 11 inlere.sted in the outcom~he action. 12 Further certific~t!~~~rements pursuant to Rule 13 " occurred. 1 ~ # 203 ofTRCP will ~'fted to after they have Certified to . this 22nd day of July 2013. " " ~~ " Finn No. 342 , 802 North Carancahua, Suite 2280 Corpus Christi, Texas 78401 " Telephone; (361) 883-1716 Fax; (361) 888-6550 " " U.S. LEGAL SUPPORT RIO GRANDE VALLEY -(800) 881-0670 CORPUS CHRISTI - (361) 883-1716 Beth Jackson July 24, 2013 Job No. 14756 Page 1 Page 3 NO. 2012·65503 1 INDEX KERl HJLL and MICHELLE 'IN THE DJS1RICT COURT OF 2 BARNETT Stipulations......................... ........ 1 3 Appearances............... ,................... 2 4 v. 'HARRIS COUNTY, TEXAS BETII JACKSON 5 HENRl MORRlS and SOLID Examination by Mr. Todd.................. 4 SOFTWARE SOLUTIONS, INC., 6 dlb/o EDIBLE SOFTWARE ' 55TH JUDICIAL DISTRICT 7 SignaiUre and Changes ............. ,.......... 128 Reporter's Certificate....................... ~ 0 (eY~ ORAL AND VIDEOTAPED DEPOSITION OF BETH JACKSON 9 10 11 12 NO. DESCRIPTION (No exhibits marked) EXHIBITS u REQUESTED DOC~NTSffi'.IFO.RlvrATION ~~PAGE ~ ~ JULY 24,2013 13 NO. DESCRIPTION PAGE ****+++++********************************************** ORAL AND VIDEOTAPED DEPOSITION OF BETH 14 15 (None) 0 J/i3 JACKSON, produced as a witness at the instance of!11e 16 C~QUESTIONS PlaintiffS and duly sworn, was taken in the above styled and numbered cause on July 24, 2013, from 10:02 NO. (~ PAGE/LINE a.m. to 12:3& p.m., before Amy J. Doube-nmier, CSR, in 17 <> fu and for the State of Texas, reported by machine 18 (Non~ ~~ !Q)i(p} shorthand, at the offices of Rosenberg & Sprovach, 3555 Tinuuons LMe, Suite 610, Houston, Texns, P'Lirsilant to the Texas Rules ofCh•il Procedure and the provisions ri' stated on the record herein. ~f! 1 Page Page 4 1 2 APPEARANCES g 1 THE VIDEOGRAPHER: Today's date is July 3 FOR 1HE PLAINDFFS: @ 2 24th, 2013. The time is 10:02 a.m., and we're on the 4 Mr<.JEFFREVN. TODD ~o,_,ifJ 3 record. STATE BAR Nffi..ffiER 24028048 '-.'-'.> 4 (\Q~ 5 THELAW:FIRMOFALTONC.TODD BETH JACKSON, 6 312SouthFriendswoodDrive Friendswood, Te;o;as 71546 ~ · 5 having been first duly sworn, testified on her oath as Telephone28l.992.~G33 ......_~ 6 follows: 7 fit'\ 2!31.648.13633 ~ 7 (The time is 10:03 a.m.) E~mailjeff@acHaw.com ~ 8 EXAMINATION ~ 8 9 FOR THE DEFENDANTS' (f' 9 BYMR.TODD: 10 MR. GREGG M. ROSENBERG ~) 10 Q. Good morning, ma'am. ROSENBERG & :SPROVACH ~ 11 3555 Timmons Lme, Suite 610 ,~ 11 A. Good morning. Houston, Texas 77027 <>~(Qr 12 Q. Can you, please, state your full name for the 12 Telephone '1U.960.&300 tP ~ 13 ... 71l.6Z!.6670 "If~ record? 13 E-mail grcgg@rosenberglaw.~ 14 A. Beth Ann Jackson. 14 15 THE VIDEOGRAPHER' !!:::rg 15 16 Q. And, Mrs. Jackson, my name is Jeff Todd, and you and I met briefly at Andrea Farmer1s deposition, MR. JOSEPH TAVJ.~ 17 correct? 16 FOX REPORTIN~ 4550 Post Oak Place, Suite 201 18 A. That is correct. 17 Houston, Texas 77027 19 Q. And I know you sat in for some of that, so you Telephone 713.622,1580 18 20 kind of saw a little bit about what all is involved 19 ALSO PRESENT: 21 with a deposition, correct? 20 MR. TREVOR MORRIS 22 21 A. Yes, sir, 22 23 Q. Have you ever given a deposition? 23 24 A. No,sir. 24 25 25 Q. Okay. I'm sure, after seeing that with Andrea 1 (Pages 1 to 4) I~ l T I I I~ --=- c..J _ _ Electronically signed by Amy Doubenmler (201·0B3·9B3·52•11fiememllllimi!lli!E.I' 7 5 bO 8e32·ddf1-4170-ab20-0 67220224a62 Beth Jackson July 24, 2013 Job No. 14756 Page 21 Page 23 1 A Yes, sir. 1 with prepping you for this deposition. Is that 2 Q. And is Edible Software still located there •• 2 correct? 3 here in Houston? 3 A. No, sir. 4 A. In Houston, yes. 4 Q. What was the purpose of you attending Andrea 5 Q. Okay. And where are you ~~where do you 5 Fam1er's deposition? 6 currently reside? 6 A. As a corporate representative. 7 A. Cumming, Georgia. 7 Q. Okay. Are you actually employed by Edible 8 Q. Okay. W1lere your company is? B Software? "'L 9 A. Yes, sir. 9 A. No, sir. ~ 10 Q. How many employees were there at Edible 10 Q. How would you ~~rporate representative of 11 Software. if you know, at the time you came down in 11 Edible Software, ify~liOt employed by Edible 12 December of2004? 13 12 Software? ~ A. Ten, 12. I mean. that's a guesstimaticm. 13 MR. RQ ERG: Object to form. 14 Q. Thafs fine. So, you meet Henri in pers011 at 14 Q. (BY D) I'm just trying to 15 Thanksgiving. You come down in December. Did you come 15 understand --, se I heat· you say, 1\ve" and things 16 by yourself or with anybody else from Culinary Masters? 16 like that. ~ 0 17 A. By myself. 17 A. ~ 18 Q. Okay. And did you meet with Trevor on that 18 Q. ~l'i\st t1ying to understand the 19 occasion? 19 relati~•P· 20 A. Jdon't recall meeting with Trevor. I was 2 0 ~I have a longstanding working relationship 21 there for training, specific training, on how to get 21 his company. I do a lot of consulting internally 22 the software up and rmming. 22 e company as well as the clients ofEdible 23 Q. Okay. And how long did that trip take? 23 vare. 24 A. I think l was there for two days, if! :1!~ Q. Okay. Do you have any other consulting jobs, 25 remember correctly. othe1 than Edible Software? ;; Page 2~f!J Page 24 1 Q. Okay. Did you go out to dinner with Henri org 1 A. Currently, no. 2 anyone else? @; 2 Q. Okay. Have you in the last couple of years? 3 A. With Henri, yes, I did. . "~~ 3 A. No, sir. 4 Q. Did y'all have drinks? ~ 4 Q. So, Edible Software has been your sole client? 5 A. Yes. \U 5 A. Right now, yes. 6 Q. Do y~u recall where y'aU went~· dt'mier? 6 Q. And Edible Software has been your sole source 7 A. No, str, I do not. 7 of income tbr the last couple of years? 8 Q. Did he ever handle any ofy~ri ks that 8 A. Yes. 9 evening? . rF \\)"' 9 Q. Okay. Has there ever been a discussion about 10 A. No, su·. ~! 10 actually betng brought on as an employee of Edible 11 Q. Okay. Other than talkllw. to counsel kind of 11 Software? 12 generally about what a ddon is, did you do 12 A. Yes. 13 anything else to prepal'J).I!l1J1i)our deposition here 13 Q. And when did those discussions take place? 14 today? -~ 14 A. They1ve taken place over the our period of ww 15 A.. I met with ~'osenberg yesterday, and that 15 our vendor rchttionship. Yes. 16 wastt. ~ 16 Q. Okay. Is there .. what's the .. is there a 17 Q. For hm.v~ug? 17 sticking point, so to speak, or wlmt's the-- it just 18 A. I was l~hree hours .. was I -· 18 never really progressed further than discussing it? 19 approximately. 19 A. There's no real sticking point, no. It just 20 Q. Okay. Had you ever met with Mr. Rosenberg or 20 --we talk about Hand then do something else. You 21 Mr. Cogdell at any other tune, prior to yesterday, in 21 know what I mean? You get hung up with another client 22 preparation for your deposition? 22 or whatever and just .. no sticking point as to why it 23 A. No, sir. 23 hasn't happened. No, sir. 24 Q. Okay. Other than you traveled with them for 24 Q. Okay. Do you have any idea why it hasn't 25 Andrea Farmer's deposition. But that had nothing to do 25 happened? 6 (Pages 21 to 24) 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? . 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. An1hing 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. ,_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