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

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(<l'B! od sexual

abuse. Id. § 16.0045(c). Subsection (a) amends;N;1fe default

limitations provision provided in section 16.0~ extend the

limitations period from two to five years.~mpare id. §

16.0045(a) (expanding limitations periodSfive years for

victims of various types of sexual assaul{j,JVith id. § 16.003

("Except as provided by Sections 16.o~o 6 ·ury

0031, and 16.0045,

a person must bring suitfor trespassfo to the estate or

to the property of another, conversi of personal property,

taking or detaining the personal pr~ ty of another, personal

injury, forcible entry and detain~<ind forcible detainer not

later than two years after t~ Clay the cause of action

accrues."). Taken together, t~ovisions of section 16.0045

unambiguously show a legiM~e intent to provide victims of

sexual assault... more time f§'seek damages for their injuries.

(Emphasis added)." . @>

Stephanie M., at 659. See also~ Catholic Soc. of Religious & Literary Educ., No.

CIV. A. H-09-1059, 2010 0

W~3ZJ:5926, at *16, (not reported'm F.Supp.2d), (S.D. Tex.

Jan. 22, 2010)("The stQt®~f limitations for a personal injury suit based on sexual

assault is five years. 'i'rot. Civ. Prac. & Rem. Code § 16.0045. This five-year limitations

";£©Y

period clearly a~ to the vicarious liability claims. The five-year limitations period

may apply~~er claims as well, particularly the direct liability. claims that the

defendants' negligence allowed the alleged abuse to occur. In interpreting section

16.0045, this court has previously concluded that 'the Texas Supreme Court would join

the majority of state courts considering similar statutes and hold that the limitations

period of Section 16.0045 applies to claims against nonperpetrators of sexual abuse as

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

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42

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was forwarded to the

counsel listed below, via the method(s) indicated, on this the 2oth day of February, 2015:

Gregg M. Rosenberg

3555 Timmons Lane, Suite 610

Houston, Texas 77027

Via Facsimile, Efile or CM/RRR

43

12/13/2013 7:52:38 AM

Chris Daniel- District Clerk Harris County

Envelope No. 7311.9

2013-74668 I Court: 215 By; Nelson cuero

No. _ __

ANDREA FARMER § IN THE DISTRICT COURT OF

§

V. § HARRIS COUNTY, TEXAS

HENRI MORRIS and

§§ ,';0L

~

SOLID SOFTWARE SOLUTIONS, INC. § _JJ!fl

d/b/a EDIDLE SOFTWARE § JUDICl!\~TRICT

PLAINTIFF'S ORIGINAL PETITION .~rrtf

TO THE HONORABLE COURT: f{f;~""

Plaintiff, ANDREA FARMER, eomplains of HENRI ~S and SOLID SOFTWARE

SOLUTIONS, L.L.C., d/b/a EDIBLE SOFTWARE, ani/support hereof would show as

follows:

Discovery.

1. Pursua11t to TEX. R. CN. P. c , Plaintiff intends to conduct discovery under

Rule 190.3, Leve\2,

Texas.

2.

3.

, "'"'""

Plaintiff, AND~ FARMER ("F'ARMER"), is a resident of Aransas County,

place of business at 3603 Westcenter Drive, Suite 100, Houston, Texas

77042.

4. Defendant SOLID SOFTWARE SOLUTIONS, L.L.C., d/b/a EDIBLE

SOFTWARE, is a domestic limited liability company and may be served by serving its

EXHIBIT

i t'IJ''

registered agent, Henri Mon·is, at its registered b11siness address of3603 Westcenter Drive, Suite

100, Houston, Texas 77042.

Request Pursuant to Rule 28

5. To the extent that Defendants are conducting business under an am~!!la name or

trade name, this suit is brought under TEX. R. CN. P. 28, and Plaintiff maKe~:;!' that, upon

answering this suit, Defendants make answer in their correct legal and tratf~8;n1es.

Jurisdiction & Venue

6. This Conrt has personal jurisdiction over all pa.J~ilfo this suit. The Court has

subject matter jurisdiction over this case because in controversy is within the

jurisdictional limits of the Court, and no other Court ffi~,.,:ive. jmisdiction over this matter.

7. Venue is proper because the defendant has its principal place of

business in Harris Coun1y, and the claims corporate and individual defendants arise

out of the same transaction or series of trm1~1))l'l<ms.

Facts

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

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

fuf'De>feJJtdaJJt HENRI MORRIS was the President and CEO of the

as Plaintiff FARMER's direct supe1visor.

9. of 2011, Defenda11t MORRIS, acting in his capaci1y and within the scope

of his dun~>B' President and CEO of Defendant SOLID SOFTWARE SOLUTIONS directed

FARMER to join him on a business trip to New Jersey and New York to meet clients. During

this business trip, Defendant MORRIS dmgged FARMER by putting an unknown substance into

a drink, unbeknownst to FARMER. Dming this time, MORRIS attempted to sexually assault

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

oe©

(Defendants) now file this Original Answer, and in su~thereol; respectfully show the

Cout11he following: Q

o§"@

I. G~'1'Jenial

Pursuant to Rule 92 of the Texru; Ru~t·jEvi1 Procedure, Dcfendan ts generally deny

each and every, aU and singular ~gatiot1 in Plaintiff's Original Petition, and

Q([J!flE

0

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

preponderance of the evi~~·

0

Ug II. Atl'innativc Defense

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

¢~v

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

Defe~s also uffinnntively plead the defense oflimitations.

D~dmtts resetve the rigbt to atnend their Atwwet· pursuant to the Texas Rules of

Civil Procedure.

III. Pmyer fur Relief

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

Defendants• Original Answer

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

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

2. Award Defendants costs of suit; and

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

~rij

Respectfully subn~Q

*

0~

~

Is/ Gl'egg M~senhel'g

Gregg l\:liR1;i enberg

State~'%'. 17268750

3518>~is, Suite 200

Ho_t~n, Texas 77002

~ 960-8300 (Tel)

~3) 621-6670 (Fax)

~Attontey-in-Charge tor Defendnt1ts

OfCounsel: ~

ROSNEBERG SPROVACH ~~ ATTOR[\!EYS FOR DEFENDANTS

©;

<J:JJ@

~

~

~~

u©;

~

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~

Defendants' Original Ansv;rer

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

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing instrument was duly

served upon the tbllowittg by Celtitied Mail/Retum Receipt Requested, Reguhu· Mail,

Facsiniile, Ovemight Delivery and/or Hand Delivery on this the 18th day of December,

2013:

1\lr. JeffreyN. Todd

312 S. Friendswood Drive

Friendswood, Texas 77546

(281) 992·8633 (Tel)

(281) 648-8633

Defendants' Original Answer

2/21/2014 2:37:35 PM

Chns Daniel- Dlstnct Clerk Harrts County

Envelope No. 635642

By: JONATHAN PATION

CAUSE NO. 2012-65503

KERIHILL, § IN THE DISTRICT COURT OF

MICHELLE BARNETT §

and STACY STEWART §

Plaintiffs, §

§ HARRIS COUNTY, TEXAS

v. §

HENRI MORRIS and

SOLID SOFTWARE SOLUTIONS, INC.

§

§

~1ucT

55th JUDICIAL

~

§

d/b/a EDIBLE SOFTWARE ~

Defendants. ~r{J

CAUSE NO. 2012-65503-A Q(jj

MICHELLE BARNETT § II~~ DISTRICT COURT OF

Plaintiff,

§ -~

v. ~ Q~

§ o @? HARRIS COUNTY, TEXAS

HENRI MORRIS and

SOLID SOFTWARE SOLUTIONS, INC. ~~

d/b/a EDIBLE SOFTWARE

Defendants. ~§ 55th JUDICIAL DISTRICT

'(:_.5)1@

~E NO. 2012-65503-B

STACY STEWART ~\Q § INTHEDISTRICTCOURTOF

Plaintiff, ~")) §

rF!fdJ §

v. ~ §

~ § HARRIS COUNTY, TEXAS

HENRI MORRIS af!d'(O} §

SOLID SOFT~~OLUTIONS, INC. §

d/b/a EDIBLE WARE §

Defendant~O § 55 1hJUDICIAL DISTRICT

~ DEFENDANTS' PLEA TO THE COURT'S JURISDICTION

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

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

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

INTRODUCTION

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

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

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

on the summary judgment motion, this Court does not have subject matter j~~ion over the

claims assetted in this lawsuit. Because of the Jack of subject matter jurisYon, the case must

~

be dismissed, ~r!;j

The Motion for Summary Judgment relied heavily on the~ Supreme Comt's holding

in Wafjle House v. Williams, 313 S.W.3d 796, 803 (Tex. 2010), ~equent to Wajjle House, there

~

have been several comt of appeals opinions that cited Q~~t injected a jurisdictional approach

to the analysis in holding for employers in claims0 w!w.re employees assert common law claims

§:df

that are pre-empted by specifically written ~ment discrimination statutes. One of these

cases, Pruitt v. International Association/J!tFire Fighters, 366 S.W. 3d 740 (Tex. App ~

Texarkana, 2012 (no pet.) took th~*oach, holding that in fact patterns such as the ones

before this Court, there is no j t~tion to hear the claims asserted by the Plaintiffs. Pruill

relied on several cases that !~hat a failure to file employment based discrimination claims,

including those alleging ~1lous instances of sexual harassment, with the proper administrative

~

agency (In this case~ Texas Workforce Commission- Civil Rights Division "TWC-CRD")

deprives the co#Jurisdiction to hear the case.

D~ts' Plea to the Comt's Jurisdiction should be granted purely as a matter of law

because Plaintiffs have inconectly brought forth common law claims of assault for alleged

conduct that falls within the scope of the Texas Commission for Human Rights Act's

("TCHRA") exclusive remedy for workplace sexual harassment. Defendants are cognizant of

2

the severity of the allegations being asserted by each of the Plaintiffs in tllis suit. Regardless,

even if the allegations of assault of a sexual nature were ttue, the exclusive remedy lies within

the confines of the TCHRA. This co uti has no jurisdiction to bear them because administrative

prerequisites were circumvented by Plaintiff Ked Hill, or in the case of plaintiffs Michelle

Barnett and Stacy Stewati, wholly ignored. ~~

STATEMENTOFFACTS 1 ~U

I. Plaintiffs' Employment History with Defendant Edible So~

~

a. Barnett's Employment History ~

Plaintiff Michelle Barnett ("Bamett") began het• ~yment with Defendant Edible

.

Software on August 1, 2011 as an Operattons ,a~ ' She was transferred from

OffiQ\<!!<>uager.

Operations Office Manager to an Implementation"~ within Edible Software as of November

~

2011. 3 In the Implementation Role, Barn~s expected to assist new customers with

purchased software, either on site or at the~ility. 4 She went on two business trips during her

employment; (1) a business trip to ,~ Georgia to attend a trade show on or about October

15, 2011 and (2) a business trip~ew Ol"leans, Louisiana to meet a prospective client on or

about November 14, 2011. 5 ~tt continued to work for Defendant Edible Software until in or

©!~

about February 2012, wh~he resigned from her employment. 6

~ .

b. Hill'~ployment History

~~

#

1

In this Plea to the Jurisdiction, the Statement ofFacts is entirely the same as what has previously been presented to

the Court in the Motion ibr Summary Judgment. They are incorporated here as a matter of convenience. For the

purposes of this plea all facts are to be constmed most favorably against Defendants.

2

Barnett Dep., Ex. 1, at 24:5-15,

'BarnettDep.,Ex.1,at27:11-12.

4

BamettDep.,Ex.l,at25:12-l8.

5

Barnett Dep., Ex. I, at 29:17-25; 30:22-31:7; 75-76.

6

BarnettDep., Ex. 1, at 11:25-12:5.

3

Plaintiff Keri Hill ("Hill") began her employment with Defendant Edible Software on

December 12, 2011 as a Sales and Marketing Manager. 7 As part of her job duties, Hill was

required to meet and help secure prospective clients. 8 To that end, she went on two business

trips during her employment; (I) a business trip to New York to meet prospective client Anchor

Seafood on or about January 8, 2012 and (2) a business trip to Chicago m~iJ!Ma, Illinois to

meet prospective client Pasqua! on or about January 22, 2012. 9 Hill wa~ed by Defendant

~

Morris to attend the New York business trip. 10

She initiated a requ~ttend the Chicago trip

and told Defendant Morris that if he thought it would be a goo~ing expedence for her she

would like to attend. 11 On April 11, 2012, Hill was put ~aid leave of absence and was

subsequently notified of her termination approximatel~~~eeks later."

c. Stewart's Employment History o"'@;j

~

Plaintiff Stacy Stewart ("Stewmt") ~~ her employment with Defendant Edible

Software in or about February 2011. 13~ewart was employed to implement software at

customet· sites. From March 18, 20 ~~tgh March 22, 20 II, she attended the Boston Seafood

Show. Upon her return, Defen<@~orris and Beth Jackson, a management level consultant,

met with Stewart to discuss,~erfotmance at the show. Defendant Morris commented that

g"<S

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

~

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

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

:::J~

7

Hil!Dep., Ex. 2, at 40:3"4; 36:18"19.

'Hill Dep., Ex. 2, at 45:24"45:1.

9

Hil!Dep., Ex. 2, at169:21"170:1.

10

Hill Dep., Ex. 2, at 46:19-47:2.

11

Hill Dep., Ex. 2, at 109:20"110: 18.

12

Hill Dep., Ex. 2, at 155:5-13.

" Stewart Dep., Ex. 3, at 24:8-23.

14

Stewart Dep., Ex, 3, at 123:23-25.

4

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

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

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

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

prescribed medications, Wellbutrin for depression (diagnosed in 1998) and ~~~ for restless

leg syndrome (diagnosed in 1993). 17 Stewmt was also diagnosed with bilM· disorder in 2005,

2006, and again as of approximately April2013. 18 ~if';j

II. Incidents Regarding Allegations of Unwanted Sexual~ct

a. Barnett's Allegations of Unwanted Sexual Con~y Defendant Morris

Plaintiff Barnett alleges that she was druggQ~efendant Morris and subjected to

unwanted sexual contact while on a business trJMo New Orleans, Louisiana in or about

~d

November 2011. 19

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

Defendant Morris. 20 While on the plane ~ing to New Orleans, Barnett consumed a glass of

red wine. 21 Upon arrival in New ~~ Barnett and Defendant Morris checked into the JW

Man·iot hotel in New Orleans' F~ Quarter and then met in the concierge lounge of the hotel

after briefly visiting their im!~ual hotel rooms. 22

At the concierge lounge, Barnett made

g~

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

~

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

g~

15

Stewart De ., Ex. 3, at 126:7"128:14.

16

Stewart Dep., Ex. 3, at 132:10-12.

11

Stewart Dep., Ex. 3, at 107:17-110:20.

18

Stewart Dep., Ex. 3, at 114:14-116:2.

19

See Plaintiffs' Second Amended Petition, at~ 9.

20

Barnett Dcp., Ex. 1, at 75-76.

"Barnett FBI Interview, Feb. 27,2012, Ex. 4, at p.13.

"Barnett Dep., Ex. 1, at 83:24-84:17.

"Barnett Dep., Ex. 1, at 84:20-86:15.

5

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

waitress at Mr. B's restaurant. 25

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

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

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

At this time, Barnett had consumed five (5) alcoholic beverages and mul~ips from (2) other

alcoholic beverages. Barnett testified during her deposition that at th~~t she felt "tipsy.""

After dinner at Mr. B's restaurant, Barnett and Defenda~ris went to PJ's Piano Bar

("PJ's"). At PJ's, Barnett consumed approximately half~~ alcoholic beverage called the

"Hurricane."" Barnett described the Hurricane as ~ intensive" and as being a potent

alcoholic beverage. 30 Barnett went to the restroo~d when she returned, there was a second

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

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

On her own accord, Barnett proceeded to

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

pmtions of two more drinks at P@~ this point, Barnett had consumed (5) alcoholic beverages

1 red wine, 3.5 vodka soda· ~~fa Hurricane) and multiple sips from two (2) other alcoholic

~"

beverages. 33 U

.~

"~(Iff

~VJ

(j

24

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

~ Id

,. Barnett Dep., Ex. I, at 92:18-93:1; See also Barnett FBI Interview, Feb, 27,2012, Ex. 4, at p.21-22.

27

Barnett Dep., Ex. 1, at 93:2-97:24.

"Id

"Barnett Dep., Ex. 1, at 98:21-103:7.

"BarnettDep.,Ex.l, atl03:8-!03:1I.

31

Barnett Dep., Ex. I, at 103:8-103:23; See also Barnett FBI Interview, Feb, 27, 2012, Ex. 4, atp. 26-27.

"Barnett Dep., Ex. 1, at 104:21-106:5.

"Barnett Dep., Ex. I, at 107:7-16.

6

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

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

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

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

night {November 14, 2011), following the portion of the second Hurricane s\~1med at PJs,

da~Ym; (2) she stated

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

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

because she was sick." Bamett testified that she was only sp~ng that Defendant Morris

was with her in a hotel room. ' 6 Specifically, Barnett testifie~t she could not be one hundred

percent sure that Defendant Morris assaulted her and c~d that she was just speculating:

Q: What was it you felt he did to you att._~ point?

A: He assaulted me and tried to IUinn1~othing.

Q: But you said at that point you did~"know it was Henri because he hadn't told

you about it yet, and you told(l)lU&rlkr you didn't know who it was. lsn 't that

correct? ~

A: I couldn't be one hundre~l!f~rcent sure because the person was behind me.

Q: Okay. So at that po,~t~ti still weren't one hundred percent sure when he's

knocking on your h~~or.

A: No, but I felt it wali'mti1.

Q: You're just spec!J\~g.

A: yes." 0"))

©!~

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

~

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

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

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

"Barnett Dep., Ex. 1, at 108:14-109:15.

"Barnett Dep., Ex. 1, at 109-116:12.

36

BarnettDep., Ex. 1, at 128:21-129:11.

37

Barnett Dep., Ex. I, at 128:18-129:11.

"BarnettDep., Ex. I, at 116:13-123:13: see also Barnett FBIInterview, Feb, 27,2012, Ex. 4, at p. 28.

, Jd

7

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

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

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

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

hotel room. 42 Barnett first told Defendant Morris to go away but then came~~e hallway to

speak with him. 43 At this time, she speculated that Defendant Morris ha~Q to assault her the

night before and ruin her clothing. 44 During their conversation !#hallway of the hotel,

o§@

Bamett told Defendant Morris that she was uncomfortable ~"\t what happened the night

before." Defendant Morris responded that he did not un~d her accusations and that she

,,~

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

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

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

thanked her for her attendance. 48 ~ -

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

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

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

~~

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

Hill

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

©!

~

40

41

Id ~~

BarnettDep.,Ex. I, 126:2-127:14.

42 Id.

43

Id.

44

Barnett Dep., Ex. L, 128:10-20.

45

BamettDep., Ex. 1, 130:12-132:10.

46 !d.

47

Id.

"Barnett FBI Interview, Feb, 6, 2012, Ex. 4, at p.42.

49

See Plaintiff's Second Amended Petition, at~ I I.

8

that such incidents of unwanted sexual contact actually took place and/or that she was actually

drugged by Defendant MmTis. 50

i. New York business trip allegations

Hill departed fi·om Houston with Defendant Morris to LaGuardia Airpott in

New York on January 8, 2012. Defendant Morris and Hill visited the Presid~ub VIP area

before take-off. She consumed two (2) "Bloody Mary" alcoholic bevera~ithin a fmty-five

~

(45) minute period in the President's Club at the airpoti. 51 De~~t Morris and Hill sat

c@@

together in first class on the airplane. She ordered and consu~o (2) cranbeny and vodkas

approximately forty-five (45) minutes after take-off. 52 c,jjf

Upon arrival in New York, Defendant MorrQ~ill checked into the Man·iot hotel

located only 2-3 miles from the airport." Hill and~ndant Morris met in the concierge lounge

of the hotel after briefly visiting their rooms, ~dant Morris fixed himself and Hill cranberry

~hen it was time to leave the concierge lounge to

and vodka drinks in the concierge lounge.

go to dinner, Defendant Mon·is tra~~d his drink and Hill's drink into two go cups. Hill 55

took her drink to the car and too~·oximately two (2) sips from it. 55

Hill alleges that Def(!ffif~t MmTis insetted drugs in her to-go cup drink at the concierge

©~

lounge in the hotel. 57 9CeJlnever saw Defendant Morris insert anything into her drink. At the

point Defendant ~Ps

~ gave Hill the to-go cup drink, she had consumed four (4) alcoholic

beverages and~ns of a 5th alcoholic drink. Hill testi-fied that she very rarely drank mixed

;;:;~

50

Hill Dep., Ex. 2, at 126:14-127:6; 130:14-131:4; see also Hill FBIInterview, Feb. 24,2012, Ex. 5, alp. 16.

51

Hill Dep., Ex. 2, at 53:16-54:4.

52

Hill Dep., Ex. 2, at 57:16-58:9.

53

Hill Dep., Ex. 2, at 61:15-23.

54

Hill Dep., Ex. 2, at 71:16-75:10; see also Hill FBI Interview, Feb. 24, 2012, Ex. 5, at p. 21.

55

Hill Dep., Ex. 2, at 76:2-77:8.

56

Id

57

Hill Dep., Ex. 2, at 130:14-131:4.

9

drinks or hard alcohol; she never consumed five (5) alcoholic dl'inks in a 7-8 hour period before

in her life and that she never drank on an airplane before."

After consuming four (4) mixed drinks containing hard alcohol and a portion of a fifth,

Hill does not remember anything else that happened during the night except flash memories that

only amount to pure speculation. 59 She confirmed that she had no memory o~g Manhattan

on January 8, 2012 as she had planned to do earlier that day with D~~nt Morris. She 60

testified that she did remember getting into an elevator, into a car a~~car moving as well as

some memory of trying to get out of a car, but she did not kno~ther she was in Manhattan

or at the hotel." Hill confirmed that she could not rememb~efendant Morris was with her

at this point." Her next memory is trying to find her ~d noticing that she had urinated on

herself." She does recall that Defendant Morris ~ed her that he had been looking for her,

called her telephone multiple times" and wa~erned because he could not find her. 65 Hill

~dant Morris, "I'm fine, you're blowing this out of

stated that she could recall responding to

prop01iion."" Hill asked Defenda~~~s to leave her room and he told her to sit down, they

would watch TV for a moment~ she would feel better. Hill asked him to leave again and

Defendant Morris left her ro~~

rF~

The next morning,J"Iill called her husband and her husband infotmed her that she had

,oJJ.}

called him the ni~~l!;"f'vre and told him that Defendant Morris wanted to watch TV and she was

~

~OJ

"Hill

59

Dep.~2, at 98:9-100:14; 202:13-24.

Hill Dep., Ex. 2, at 78:2-7; see also Hill FBI Interview, Feb. 24,2012, Ex. 5, at p. 23-25.

"ld.

"Hill Dep., Ex. 2, at 78:2-7; 79:7-25.

"Hill Dep., Ex. 2, at 81:24·82:6.

"Hill Dep., Ex. 2, at 81 :2-18; 194:24-196:11.

"'Hill Dep., Ex. 2, at 164:2-165:20,

"Hill Dep., Ex. 2, at 82:15-83:3.

66

Hill Dep., Ex. 2, at 82:15-83:3.

10

uncomfortable. 67 She testified that she did not feel that she had been physically violated by

Defendant Morris at this point. 68 She apologized to her husband and told him she was

embarrassed about her behavior. 69 Hill did not allege that her conduct was due to anything that

Defendant Morris did at this time. She also apologized to Defendant Morris that morning at

breakfast." Defendant Morris informed Hill that they went downtown Man~she was fine

at first and then Defendant Morris had to hold her by the mm to assist he1~Ylking. 71

The next evening, on January 9, 2012, after meeting with the~ctive client, Hill went

to Manhattan with Defendant Morris. Defendant Morris had o~o take her again since she

did not remember going to Manhattan the night before. 7\~ and Defendant Morris visited

Rockefeller Center and NY Times Square. 73 The foll~ay, Hill and Defendant Morris met

with another client. After the client meeting, Hi~~fendant Morris and another employee of

Defendant Solid Software Solutions, Beth Ja~~ had dinner at the hotel restaurant. Hill had

t~er and one beer at dinner. Hill did not speak

one drink in the conciet·ge lounge prior 74

with anyone about the incidents in~~ork, did not accuse Defendant Morris of drugging her

and did not repmt any such spec~n to anyone even when she arrived back at work.

ii. Chicago/Peo©~inois business trip allegations

Hill initiated her(ttllndance on the Chicago/Peoria, illinois trip with Defendant Morris.

~

Despite her claim ~efendant Morris allegedly dmgged her and subjected her to unwelcome

sexual contact# last business trip in New York, she told Defendant Morris that if he thought

~~

"Hill Dep., Ex. 2, at 85:9-86:13,

"Hill Dep., Ex. 2, at 86:14-87:1.

"Hill Dep., Ex. 2, at 94:3-95:14.

10

Hill Dep., Ex. 2, at 89:2-90:22.

71

Hill Dep., Ex. 2, at 89:2-90:22.

72

Hill Dep., Ex. 2, at 97:2-9.

73

Hill Dep., Ex. 2, at100-102:3-6.

74

Hlll Dep., Ex. 2, at I 03-107.

ll

the Chicago trip would be a good learning experience for her she wanted to go. 75 Less than two

weeks after the alleged incidents on the New York business trip, Hill left for another business

trip in Chicago, alone with Defendant Morris.

Hill met Defendant Mon·is at the airport. Prior to the plane's departure, she consumed a

beer. 76 On the airplane, she ordered a Bacardi and Diet coke. 77 She then ~&/Jffthe restroom

on the plane. Hill and Defendant were sitting in a three (3) person rot'Jlh another woman

occupying a seat within the row. Hill alleges that when she went~ restroom, Defendant

o@;i;

Morris put drugs into her drink. 78 While she was in the restt·oo~'l'endant Morris and Paulina

Sorig, the other woman seated in the row, remained in their s~79

Hill does not remember exiting the plane or t~t upon arrival. She has a series of

"flash" memories between the time that she co~1ed her third alcoholic beverage on the

airplane to approximately I 0:00 pm the ni~ January 22, 2012. Hill testified that she

remembered (I) Defendant Morris holdi~r hands; (2) Defendant Morris' face pressed up

against hers; (3) Defendant Morris~~her hand and rubbing in her vaginal area and up and

fr~f a woman with Defendant Morris and the woman giving

down her leg; (4) standing in

them a recommendation for ~a\ll'ant to eat dinner; (5) drinks in the refi•igerator in her hotel

!Q~

room and (6) Defendant~rris being in her hotel room and asking hinl to leave." She testified

~

that she also reme~~Qi!d seeing a condom packet but then confirmed that she did not know if

~vv

what she saw ~ct was a condom packet. 81 Hill's flashes of memory include her being in

~~

75

Hill Dep., Ex. 2, at 109:20-110:18.

,. Hill Fl31 Interview, Feb. 24,2012, Ex. 5, at p. 48.

77

Hi!! Dep., Ex. 2, at 206:2-12.

78

Hill Dep., Ex. 2, at 130:14-19.

"HillDep., Ex. 2, at Zll:?A-212:19; 214-216.

""Hill FBI Interview, Feb. 24, 2012, Ex. 5, at p. 48.

81

Hill Dep., Ex. 2, at 134:14-16.

12

public places such as the airport, which has a high level of security and the hotel. She does not

recall any persons commenting on her behavior or questioning her mental and/or physical state.

Hill confirmed that she did not see Defendant Mords put anything in her drinks."' She

admitted that she was just speculating as to what happened in New York and in Chicago."' She

had absolutely no physical proof that Defendant Morris did anything to her p~~· in any way

tampered with her drinks." The day after the alleged incidents of unidh1e sexual contact

described above, Hill went with Defendant Morris to see the client ~~~a, Illinois. She did not

confront Defendant Morris about any suspicions or concems. Q~

Hill spoke with het· husband after she visited the cl~and was informed that she had

called him the night before. Her husband stated sQ4if slurred speech, told him she had

consumed two (2) drinks and said that she was flQ~ Her husband also informed her that he

~

then stated, "if you've only had two drinks so~'s drugged you."" Up to this point, Hill had

not alleged or even insinuated she had bee~gged by Defendant Morris at any time.

c. Plaintiff Stewart's Aile~~of Unwanted Sexual Contact by Defendant Morris

i. Boston,Massaclu~Business Trip Allegations

On March 18, 2011, ~art was informed by Defendant Morris that she was invited to

©!~

attend the Boston Sea~ Show. 87 She welcomed the opportunity to attend the show."

~

Defendant Morris ~ed Stewatt that the reason for her attendance would be to observe and

~~

#

"Hill Dep., Ex. 2, at 192:4-17.

"HillDep., Ex. 2, at 126:4-127:6; 130:14-131:4.

84

Hill Dep., Ex. 2, at 217:10-219:22.

85

Hill Dep., Ex. 2, atl45:6-146:3.

"/d.

87

Stewart Dep., Ex. 3, at 56:24-58:5.

"Stewart Dep., Ex. 3, at 57:23-25.

13

learn the product, 89 Defendant Edible Software provided hotel arrangements at the Marriott

hotel. 90

Stewart departed on March 20, 20 II on a I p.m. flight headed to Boston, Massachusetts

where she would attend the Boston Seafood Show. 91 At the airpott, prior to boarding the flight,

she ordered and drank a Tanqueray & Tonic dtink!' On the plane, she ord~d consumed

two glasses of wine. 93 When Stewart arrived at the hotel, she was met ~Yfendant Morris in

Q~

the lobby area to check-in, After the check-in procedure she brie~~nt to her room to get

0~

settled in. Then she met Defendant Morris along with Beth ~on and her mother in the

concierge lounge. Stewati had another Tanqueray and To~~·ink she fixed herself upon her

arrival at the concierge lounge." She had now consu~ me~m· (4) alcoholic beverages from the

time she arrived at the airpoti to the time she arrh~t the Man·iot in Boston. Stewart had her

fifth drink of the day, another Tanqueray a~nic, when Defendant Morris arrived at the

concierge lounge and made it for her. 95 ~

After leaving the concierge~1/!Jt. Stewatt, Ms. Jackson and her mother, Steve Nysis,

another Edible employee, and ~dant Morris went to dinner at Legal Seafood in Copley

Mall." Stewart consumed~~ of wine at dinner, her sixth drink for the day, 97

After dinner,

Stewart spent about te\,

cWminutes shopping for a shirt but was unable to find what she wanted

Q~

~~

"Stewart ~·~~q· at 58:4-58:12; 85:14-86:9.

90

Stewart~x. 3, at 61:14-23.

91

StewartDep., Ex. 3, at59:10-23.

"Stewa1i Dep., Ex. 3, at62:14-24.

" Stewart Dep., Ex, 3, at 62:8-13 (Note: In her deposition testimony Stewart first testifies that she only had one

glass of wine but when asked whether she had told FBI Agent Gregory that she had two glasses, she confirmed that

she had in fact told agent Gregory that.); see also Stewart FBI Interview, Mar. 7, 2012, Ex.6, p. 21.

"Stewart Dep., Ex. 3, at 64:7:65:1; see also Stewart FBI Interview, Mar. 7, 2012, Ex.6, p. 25.

"Stewart Dep., Ex. 3, a165:2-23.

96

Stewart FBIInterview, Mar. 7, 2012, Ex.6, p.26-27.

"Stewart Dep., Ex. 3, at 66:16-67:19.

14

before the mall closed at 9:00 p.m.•• Stewati has a clear recollection of walking back towards

her hotel that night, which was connected to the Copley Mall. 99 She also recalls speaking with

her husband that night on the phone in her hotel room around 11 p.m. 100 At this time, Stewart

was on two medications, one of which her doctor had informed her not to "drink a lot" while

taking the medication.'" ~~

Defendant~s a text informing

The following morning, March 21,2011, Stewart sent

him that she was going to the mall to get a shirt and then she \~come to the Seafood

..

~~for a white shili. 103 When

Show."' She left the hotel before 9:00 a.m. to go shopping at t~Vu

she arrived, Stewart realized the retail stores in the mal! did~~en until I 0 a.m. so she decided

to get some food and something to drink while she ~~104 She testified that she was not

feeling well and she felt like she had a hangover.'E~~evertheless, Stewati attended the Seafood

~

Show and stayed for its duration. 106 ~

After the show ended, Stewmt me.endant Morris, a friend of Defendant Morris and

Beth Jackson in the concierge lo~~f the hotel. Despite feeling hung over earlier that

morning, she had two Tanquera~ Tonic drinks while she was in the concierge lounge; the

first one Stewart prepared fo~self and the second one allegedly was prepared by Defendant

g~

Morris. 107

Stewati tes~'Jlthat she did not see Defendant Morris prepare her drink but he had

0~

~({;j

g

"Stewart ., x. 3, at 69:10-69:16.

99

/d.; Stewa ep., Ex. 3, at71:23-70:1.

100

Stewart Dep., Ex. 3, at 70:13-17.

101

Stewart Dep., Ex. 3, at 165:21-166:5.

101

Stewart Dcp., Ex. 3,at 71:24-72:7.

"'Stewart Dep., Ex. 3, at 41:5-19.

104 Id.

105

Stewart Dep., Ex. 3, at 37:4-15.

105

StewartDep., Ex. 3, at 85:3-86:9.

101

Stewart Dep., Ex. 3, at 88:3-90:3.

15

asked if anyone wanted another drink and then came back with the drinks requested, 108 After she

had consnrned the two drinks she went to dinner at California Pizza Kitchen in the Copley Mall

and walked back to the hotel with Defendant Morris, Beth and her mother and Steve Nysis.

Stewart has a clear recollection of her time in the concierge lounge, consuming the two (2)

Tanquemy and Tonics at the concierge lounge, attending dinner, and walki~ through the

mall to the Marriott hotel after dinner. 109 ~!(j

Stewart and Defendant Morris stayed in the lounge/bar a~~ the hotel after they

This text is long and has been trimmed here. Open the source document for the complete record.