# in Re Solid Software Solutions, Inc., D/B/A Edible Software > Texas Court of Appeals, 1st District (Houston) · March 25, 2015 URL: https://www.frixlaw.com/law-library/cases/4053434 ## Case - **Court:** Texas Court of Appeals, 1st District (Houston) - **Decided:** March 25, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4053434 ## Opinion text 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 ~·&var ~~·v person by any means, without that Person's consent. Id. Lack of consent Qesent where the victim has not consented to such penetration and the.perpe~knows the victim is unconscious or physically unable to resist. Id. Ms. Farm~'We very clear in both her v~nal region was red and sore, FBI statement and her deposition testimony that heroiffJJ~ $ 5 Defendants are being disingenuous when they charaQize Ms. Farmer's claims as based upon simple assault and invasion of privacy, wholly sep~d from the entire facts of her humiliating sexual abuse. If Ms. Farmer did not plead her!!! ltrt's~with sufficiently horrifying detail to make the totality of them understandable to ovew e Defendants' feigned myopia has no legal significance. She pled them sufficiently to~ · e Texas pleading standard. See Tex. R. Civ. P. 45(petition shall "consist of a statement i ain and concise language" to give "notice to the opponent" of the "allegations as a whole~Ji le 45(a)("An original petition... shall contain (a) a short statement of the cause of action ~cient to give fair notice of the claim involved ... "); see also Texas Dep't of Parks & W1mldl' ~Miranda, 133 S.W.3d 217, 230 (Tex. 2004)("Rule 45 does not require that the plainti ut in his pleadings the evidence upon which he relies to establish his asserted cause of a ti n. Mullr, 749 S.W.2d at 494-95."); Sw. Bell Tel. Co. v. Garza, 164 S.W.3d 607, 617, n.A(Tex. 2004)("See HorizonjCMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 896-897 (Tex.2~~ ('Texas follows a "fair notice" standard for pleading, which looks to whether the oppasi>&?-1>arty can ascertain from the pleading the nature and basic issues of the controversy a~d ·li'hll.festimony will be relevant .... "A petition is sufficient if it gives fair and adequate notice of~0 facts upon which the pleader bases his claim. The purpose of this rule is to give the opposi rty information sufficient to enable him to prepare a defense." Roark v. Allen, 633 S.W~2 , 810 (Tex.1982).')."); HorizonjCMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 897 (Tex. 2 ("Horizon's intent to invoke the punitive-damages cap found in the Texas Civil Practice emedies Code, even though the pleading referred to an incorrect version of the statute. oS~ e.g., CKB & Assocs., Inc. v. Moore McCormack Petroleum, Inc., 809 S.W.2d 577, 586 (Te'ieipp.- Dallas 1991, writ denied)('A pleading that gives adequate notice will not fail merely because the draftsman named it improperly.')."). And, in stark confirmation of Defendants' obdurate refusal to acknowledge Ms. Farmer's entire claims, one of the Movants here, Morris, has pled guilty to the entire gruesome scope of what Ms. Farmer claims! 16 indicating to her at least some degree of penetration, although she did not believe she had been raped, (see Response Ex. I, 99:20-100:7, [she believed she had been sexually violated and was sore in her "female regions"]). And, the circumstances surrounding her violation and Morris' subsequent arrest absolutely confirm his successful intention to render her unconscious and unable to resist him. Again, in his Ple~reement, he explicitly confessed to such! u"i"'-@) Thus, while he has not been formally charged unde~~s criminal law, his federal criminal conviction is the functional equivalent ~~f. And, justice requires that victims such as Ms. Farmer should be accn~d a reasonably expansive Q~ interpretation of the applicable limitations pe11~ instead of applying a rigid interpretation, like an Old English form of oo~, which distinctly favors a craven Q~ predator like Morris or his enabling em~, Edible. And, her invasion of privacy claim is actually a part and parcel of & sexual violation. Morris took his salacious liberties with Ms. Farmer while ~ was in a helpless condition and then took photographs of her nude bodyG~ding close-ups of her vaginal area, as proof of his sadistic conquest, which he~· bragged about to his mistress Jackson. He was such a g~"'' coward that he took pai~o cover Ms. Farmer's face with a pillow while photographing ~ his "trophy ldll" ~~n repeatedly lied to Ms. Farmer about taldng the photos. Thus, he is the last pe~1 on earth the limitations period should be strictly applied in favor of. In s$rt of such interpretation, in Stephanie M. v. Coptic Orthodox Patriarchate Diocese of S. U.S., 362 S.W.3d 656, 659 (Tex.App.- Houston [14'h Dist.] 2011, rev. den' d), the CCA specifically held, in reversing and remanding the granting of summary judgment to defendants, that: 17 "Focusing on the second portion of subsection (a), the Diocese and Church defendants/appellees argue that the extension of the statute of limitations applies only to suits against the person or persons whose conduct violates the Penal Code. But section 16.0045(a) applies to a 'suit for personal injury,' which includes claims for negligence. There is no language restricting this particular limitations statute to certain types ofpersonal-injury claims; hence, there is nothing in the statute to indicate that the legislature intended to limit this~r vision to causes of action against only the perpetrators o xual assault. Part (c) of section 16.0045 permits a plaintiff G signate unknown persons as defendants in a civil suit based on ch( Stephanie M., at 659. See also~ Catholic Soc. of Religious & Literary Educ., No. CIV. A. H-09-1059, 2010 0 W~3ZJ:5926, at *16, (not reported'm F.Supp.2d), (S.D. Tex. Jan. 22, 2010)("The stQt®~f limitations for a personal injury suit based on sexual assault is five years. 'i'rot. Civ. Prac. & Rem. Code § 16.0045. This five-year limitations ";£©Y period clearly a~ to the vicarious liability claims. The five-year limitations period may apply~~er claims as well, particularly the direct liability. claims that the defendants' negligence allowed the alleged abuse to occur. In interpreting section 16.0045, this court has previously concluded that 'the Texas Supreme Court would join the majority of state courts considering similar statutes and hold that the limitations period of Section 16.0045 applies to claims against nonperpetrators of sexual abuse as 18 well as to claims against alleged perpetrators.' Doe I v. Roman Catholic Diocese of Galveston-Houston, No. 05-1047, slip op. at 21 (S.D. Tex. Mar. 27, 2006)."); Doe v. Catholic Diocese of El Paso, 362 S.W.3d 707, 717 (Tex.App.- El Paso 2011, reh'g overruled, rule 53.7(f) motion granted)(" Ordinarily the two-year personal injury statute of limitations applies to negligence... See Tex. Civ. Prac. & Rem~de Ann. §§ -12~1@ plaintiff brings 16.003(a) ... However, a five-year statute oflimitations applies whe~1e suit for personal injury caused by sexual assault or aggravat~~al assault. See Tex. Prac. & Rem. Code Ann. § 16.0045(a)."); Mayzone v. ~onary Oblates of Mary Immaculate of Texas, No. 04-13-00275-CV, 2014 WL "~7249, at *3, (not reported in oilffF S.W.3d), (Tex.App.- San Antonio July 30, 2014-JY[~lor rev. filed)("When a plaintiff brings suit for personal injury caused by sexualJlll~~t or aggravated sexual assault, the 0~ five-year statute of limitations applies. (!'~ex. Civ. Prac. & Rem. Code Ann. § 16.0045(a) (West Supp.2014); Catholic&cese of El Paso, 362 S .W.3d at 717 (applying five-year statute of limitations to ~gence, breach of fiduciary duty, and intentional infliction of emotional distr~~aims arising from allegations of sexual abuse); Stephanie M. v. Coptic Or"~ox Patriarchate Diocese of the So. United States, 362 g~" S.W.3d 656, 659-60 (~App.-Houston [14th Dist.] 2011, pet. denied) (applying five- ~ year statute of li ions to negligence claim arising from allegations of sexual abuse)."). ~· © Ob~~' if the § 16.0045 limitations period is applied to the instant claims, which occurred in May, 2011, Defendants' limitations argument evaporates. And, justice demands no less. B. Limitation Has Been Tolled In the Instant Facts. 19 Even were this Court inclined, arguendo, to determine that the two (2) year limitation period set out in § 16.003(a) applied to the invasion of privacy claim, (which should not be the case where, as here, the taking of such photos was a part and parcel of Ms. Farmer's sexual assault), then the limitations period applicable thereto should commence to run as of February 27, 2012, the date Morris was arrest~nd the nude £,1/@J photos of Ms. Farmer were found by FBI agents on the flash drive~1is possession, or even thereafter, in May, 2012, when the FBI showed them t~~see Response Ex. I, 101:1-18, [she was shown the photos by the FBI, and incluQ~ctures of her nude taken in both her first assault and later during a New Orleans t& with Morris]). As mentioned ·~ supra, on February 22, 2013, Ms. Farmer met ~rthe FBI to give her statement, (M/MSJ Ex. D), and she confirmed to the FB-q t while she thought Morris took a ·~a picture of her nude, "he won't give me his ~' and then all of a sudden I can't find his phone or what he did with it," (33:13-1~"he was like, I swear, I swear, I swear I didn't take a picture of you. I swear I didn'~'e a picture of you," (33:20-23), "so he leaves the ~ room and I'm just totally disor~d ... he leaves and shuts the door and then he knocks like five seconds later and T~~n the door and he is like, look, look, I don't - he shows ~~ me his phone and he ~~' I don't have any pictures. So I take his phone ... if I was with it and not like so gf:F, I might have been able to find the picture ... and I just couldn't even figure out ~to, you know, work my way around that phone," (35:3-15). Virtually identically,Ser deposition, (Response Ex. I), Ms. Farmer confirmed, "And, so I was like, popped up, and I was like, 'What are you doing? Are you - did you just take a picture of me?' And, he was like, 'What? No, no,'" (82:9-12), "And I was so disoriented and so confused... He was like, 'No, no, no. It's fine. It's fine. I didn't take a picture. I 6 As with depositions, citations are by page and line(s). 20 didn't take a picture,' " (82:16-23), "And so then he, he walks out of the room ... And then he knocks, and he's like, 'See, look, I don't have any pictures of you,'" (83:8-11), "I can't like even really figure out how to work the phone. Like I think I was trying to look through the pictures, but I like couldn't think to figure out how to get to where I wanted to go,'' (83:13-17). Indeed, Morris steadfastly denied he had in any '~abused Ms. . ri!J'~ Farmer or any other of his four victims, until the entry of his Plea A~ent. Defendants proffer no facts which contradict either ~~~mer's abject mental confusion on the night of her molestation or her lack of ~l knowledge of what the pictures of her actually depicted until well after her viol~~n. Defendants contend "[Ms. o;J!Ir Farmer] confirmed with the FBI that the pictures fq~ in or around May 2012 were in fact her, but she had knowledge that the pictm;,e~ere ~~ taken at the time of the alleged incidents when they occurred in 2011," ~ her deposition, at pgs. 176 and 201. (M/MSJ, pg. s-6). Respectfully, tha&flatly untrue. As noted, Ms. Framer was completely disoriented at the tim~44ier violation. And, in her deposition, at pg. 176, she made clear that it was not ~~May, 2012, after the pictures had been found, that "I confirmed the pictures wer~~," (176:21). And, Defendants' proffered quote from her co~·"'" deposition, at pg. 2o~Cij\at Ms. Farmer had knowledge of the photos is a blatant misstatement of w~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 , ;!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. ~ denied), the CCA made clear that: "The TCHRA prohibits employment ~crimination on the basis of 'race, color, disability, religion, ~~national origin, or age.' Tex. Lab. Code Ann. § 21.052 (Vernon 1996). The act essentially codified federal employment law. Compare 42 U.S.C. § 20ooe (1994) (prohibiting employment discrimination on the basis of race, color, religion, sex or national origin), § 12101-213 (1994) (prohibiting employment discrimination on basis of disability) and 29 U.S.C. §§ 621-34 (1994) (prohibiting 33 employment discrimination on basis of age), with Tex. Lab. Code Ann.§ 21.052 (Vernon 1996) (prohibiting same conduct)." Id., at 872. Then, in Jackson v. Creditwatch, Inc., 84 S.W.3d 397, 402 (Tex. App.- Fort Worth 2002) rev'd in part, (on unrelated grounds) 157 S.W.3d 814 (Tex. 2005), the CCA noted that: "The Perez court examined the legislative history and legislative intent behind the ena~ent of the TCHRA and concluded: "Notably, neither an intent to se~ps an exclusive _ _p~ remedy, nor an intent to preclude common law 'CG~es of action, is ~"'- contained within the stated purposes of the TCJiliA. Additionally, the . Qv statute contains no provision that implies th'ifu,TCHRA's administrative ¢~v review system precludes a lawsuit for cwc::hon law causes of action. Instead, the opposite proposition canc-'fi:j implied from section 21.211. 0~ (Emphasis added)." Id., at 402. Therefore~ again, there is nothing in the TCHRA's "meticulous legislative design" which p~rts to justify Defendants' tortured reading of it merely to argue insulation from ~lity from utterly appalling misconduct. Indeed, ~ their very argument of such 0~ slap in the face of every mother, wife, sister and daughter in the State of Te~~ Ms. Farmer was ~~arassed or discriminated against. She was sexually violated, w physically abused ~ emotionally humiliated. This case is. not about the legitimate work-related gr~ces of being patted on the fanny or having a breast brushed against in the w4ce, or being made to suffer annoying workplace humor directed disparagingly at women, or not getting a raise or promotion because of a gender-based glass ceiling. Rather it is about truly vile and criminally confessed sexual abuse degradation. The Defendants should be held legally and morally accountable in a public trial before a jury of the Parties' peers for their reprehensible conduct. 34 E. Defendants Completely Fail to Meet the Traditional Summary Judgment Standard. The basis upon which Defendants seek summary judgment on each of Ms. Farmer's claims is solely Civ. Prac. & Rem. Code § 16.003(a)'s two (2) year limitation period. For the reasons discussed at length supra, the MSJ should fa~Respectfully, while Defendants are correct that summary disposition may be soug~rsuant to Tex. R. Civ. P. 166a, in their pursuit thereof here that's all they are cor~Yabout. Defendants 6~ cite Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2~, as the authority upon o{P which they seek summary judgment, (M/MSJ, pg. 13, n.~, but fail to consider what ~ the Supreme Court therein said: "To prevail o~,~aditional summary-judgment motion, a movant must show that no genuine is~Wr material fact exists and that it is entitled to judgment as a matter of law. ~ R. Civ. P. 166a(c). A movant who ~ conclusively negates at least one essen~tiJllement of a cause of action is entitled to summary judgment on that claim.~ff:ftt-Williams Co. v. Diaz, 9 S.W.3d 801, 803 (Tex.1999). When reviewing a su~ry judgment, we take as true all evidence favorable to the nonmovant, and we in~ every reasonable inference and resolve any doubts in the nonmovant's favorU!@J~ce Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997); Friendsw?llid Dev. Co. v. McDade & Co., 926 S.W.2d 280, 282 (Tex.1996)." o;{,({Ji" Id., at 215. See ~HS Cedars Treatment Ctr. of DeSoto, Texas, Inc. v. Mason, 143 S.W.3d 79~(Tex. 2004)(same); M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23-24 (Tex. 2000)("Under Texas summary judgment law, the party moving for summary judgment carries the burden of establishing iliat no material fact issue exists and iliat it is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166 a(c); Rh6ne-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222 (Tex.1999); Worniclc Co. v. 35 Casas, 856 S.W.2d 732, 733 (Tex.1993) ... When reviewing a motion for summary judgment, the court takes the nonmovant's evidence as true, indulges every reasonable inference in favor of the nonmovant, and resolves all doubts in favor of the nonmovant. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985)."). As the CCA noted in Schrank v. Laerdal Med. Corp., 440 S.W.3d 250, 256 ~.App.- Waco ,;=>'!.{@ 2013, rev. den'd Feb. 14, 2014), "The function of a summary judg~t "'0. is to eliminate patently unmeritorious claims and untenable defenses, not ~~rive litigants of the right to a trial by jury. Tex. Dep't of Parks & Wildlife v. ~da, 133 S.W.3d 217, 228 (Tex.2004)." Id., at 256. Here, the Defendants have nifu,;ted nothing, much less any ·~ prima facie elements of Ms. Farmer's claims. rJ/.!!!' At most, what Defendants have demons,~d to the Court that the Defendants ·~ and Ms. Farmer will present at trial starlddrent aspects of the facts surrounding her sexual abuse. Conflicting evidence giv~rise to genuine issue(s) of fact, Randall v. Dallas Power & Light Co., 752 S~d 4, 5 (per curiam); and, so does ambiguous ~ evidence, Parker v. Yen, 823 S~d 359, 365 (Tex.App.- Dallas 1991, no writ). See also Ellert v. Lutz, 930 S.W.=?~2, 155 (Tex.App.- Dallas 1996, no writ); Frazin v. rg~ Grunning, 05-01-0049~, 2002 WL 84457, *1 (Tex.App.- Dallas Jan. 23, 2002, pet. ~ denied). "[I]n sum~ judgment proceedings, courts are not to weigh the evidence or determine its c&~ility. It is the court's duty to determine if there are any fact issues to be tried. ~kian v. Penn, 151 Tex. 412, 252 S.W.2d 929." White v. Cooper, 415 S.W.2d 246, 250 (Tex. Civ. App.- Amarillo 1967, no writ). And, "summary judgment is to be applied with caution and should not be granted where there is doubt as to the facts." In rePrice's Estate, 375 S.W.2d 900, 904 (Tex.Sup.1964)(superseded on other grounds in Stiles v. Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex. 1993)); Kiser v. Lemco 36 Indus., Inc., 536 S.W.2d 585, 590 (Tex. Civ. App.- Amarillo 1976, no writ). Further, in Dan Lawson & Associates v. Miller, 742 S.W.2d 528, 530 (Tex.App.- Fort Worth 1987, no writ), the court held that: "Summary judgment should never be granted when the issues are inherently those for a jury or trial judge, as in cases involving intent, reliance, reasonable care, uncertainty and the like. Kolb v. Texas Emp. Ins. A~ 585 S.W.2d ~@ 870, 873 (Tex.Civ.App.- Texarkana 1979, writ refd n.r.e.)." Id., at 5~ Oddly, Defendants cite the federal decisions, Celotex ~v. Catrett, 477 U.S. 317, 323 (1986), and Little v. Liquid Air Corp., 37 F.3d ~ 1075 (5th Cir. 1994), in support of their MSJ, (Id., pg. 13, n. 58). Inasmuch as th~ cases address Fed. R. Civ. P. 0~ 56, they are wholly inapplicable to the instant anal~ Indeed, in Casso v. Brand, 776 S.W.2d 551, 555-56 (Tex. 1989), the Texas SJW~ Court made it explicitly clear that Texas courts are guided by different stand~together from those which bind federal courts regarding the analysis of summa~-;;e disposition: "Summary judgmentt;~ieral courts are based on dlfferent assumptions, with erent purposes, than summary judgments in Texaf1_~ 1 the federal system, '[s]ummary judgment procedure is properly Regarded not as a disfavored procedural shortcut, but rather as an int part of the Federal Rules as a whole, which are designed "to sec e just, speedy and inexpensive determination of every action." Fe ule Civ. Proc. 1.' Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986)... '~ o~(Jr Texas l r;Jf;f course, is different. While the language of our rule is interpretation of that language is not. We use summary u«iifts merely 'to eliminate patently unmeritorious claims an tenable defenses,' City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 n. 5 (Tex.1979), and we never shift the burden of proof to the non-movant unless and until the movant has 'establish[ed] his entitlement to a summary judgment on the issues expressly presented to the trial court by conclusively proving all essential elements of his cause of action or defense as a matter of law.' Id. at 678. (Emphasis added)." 37 Casso, at 555-56. And, Casso remains the rule in Texas, regarding summary judgment consideration.ll In Walton v. Phillips Petroleum Co., 65 S.W.3d 262, 271 (Tex.App.- El Paso 2001, 38 assault: "The elements for civil assault mirror those required for criminal assault. See Johnson v. Davis, 178 S.W.3d 230, 240 (Tex.App.-Houston [14th Dist.] 2005, pet. denied). A person commits an assault if he intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative. See Tex. Pen. Code~ 22.01(a)(3) (Vernon Supp.2007)." Id., at 436. In Umana, the assault ;P~ allege~as a supervisor's snatching an apron string from an employee's neck, an incide~~ing no more than "a few seconds," (Id.). Here, as discussed at length supra, fa~e egregious conduct was involved. In Ms. Farmer's Original Petition, (Response -~ A), she made very clear that 0{/p- her assault claim was based upon Morris' intentionq)_~gging of her for the specific and illicit purpose of sexually molesting her and taki~nauthorized nude photos of her, all ~~J of which he has confessed! (See Response~. Thus, to attempt to recharacterize her claim as analogous to that involved in U~;;a is, respectfully, wholly without merit. In the same way, Defendant~ation of Polly v. Houston Lighting & Power Co., ~ 803 F. Supp. 1, 7 (S.D. Tex. ~), (Id., at pg. 13, n. 59), is inapposite. That federal decision dealt with a Title -~' claim and abusive physical contact on the job. It has ©~'I) nothing to do with(j\1s. Farmer's sexual molestation while drugged into ~ unconsciousness. ~larly, Defendants cite Fisher v. Westmont Hospitality, 935 ~if;)) S.W.2d 222, 2~ex.App.- Houston [14'11 Dist.] 1996, no pet.), (Id., pg. 13, n. 6o), which is e~ irrelevant as there the plaintiff asserted a straightforward premises liability slip-and-fall claim. Likewise, Brothers v. Gilbert, 950 S.W.2d 213 (Tex.App.- Eastland 1997, reh'g overruled, rev. den'd), (cited at Id., pg. 14, n. 61), considered a workplace sexual harassment case, in whicll the court specifically noted: "There is no competent evidence offraudulent concealment..." Id., at 216. That determination readily 39 distinguishes the case from the instant analysis. Finally, Marburger v. Jackson, 513 S.W.2d 652, 654 (Tex. Civ. App. 1974, writ refused n.r.e.), (cited Id., pg. 14, n. 61), dealt with a physical assault arising out of a workplace-related scuffle. Defendants attempt the same self-serving recharacterization of Ms. Farmer's invasion of privacy claim. Defendants contend Ms. Farmer was aw~of the nude photos of her on the night they were taken, citing a mere R,rfl/! her deposition snip~ testimony, (M/MSJ, pg. 15, n. 70 and 71). First, that's a mani~actual distortion, as ~ already explained in detail, supra at pgs. 19-21. Second, ~eady explained in detail supra, this claim should be controlled by Civ. Prac. & R~. Code § 16.0045(a)(1)'s five . o~"" (5) year limitation period. Alternatively, the limi~n period was tolled under the doctrine of fraudulent concealment, since Mor~ent to absurd lengths to lie to Ms. O~,J! Farmer about taking the photos, and she ~o actual knowledge of their existence or what they depicted until May, 2012, w~Ms. Farmer actually learned about both from the FBI. In that regard, it is mos~~s that Defendants cite Bell v. Philadelphia Int'l Records, 981 F. Supp. 2d 621,~ (S.D. Tex. 2013), (M/MSJ pgs. 14-15, n. 68). While the Bell court did state that •~laintiffs allegations that a record label misappropriated ©~{P his name, image and lil~ss for gain was a claim based on invasion of privacy and that ~ since he failed to ~nt evidence or argument as to when the claim arose, but the apparent event#urred "long ago", the claim was time-barred, (Id.); the court also said: "Clo~'1!lated to the discovery rule is the doctrine of fraudulent concealment. Unlike the discovery rule, fraudulent concealment is an equitable doctrine that is fact- specific. Shell Oil Co. v. Ross, 356 S.W.3d 924, 927 (Tex.2011). To invoke this exception, Bell must show that the defendants 'actually knew a wrong occurred, had a fixed purpose to conceal the wrong, and did conceal the wrong.' Id. Even then, '[f]raudulent 40 concealment only tolls the statute of limitations until "the fraud is discovered, or could have been discovered with reasonable diligence." 'Id. (quoting B.P. Am. Prod. Co. v. Marshall, 342 S.W.3d 59, 67 (Tex.2011))." Thus, Bell supports the timeliness of Ms. Farmer's invasion of privacy claim, even were the Court to decide it was not part and parcel of her sexual abuse. She learned of the photos and what they slo~d only after . ;Fv the FBI seized them from Morris and showed them to her in May~2. This suit was filed on December 13, 2013, (Response Ex. A), nineteen (19) u:#thereafter. In summary, when all of the facts of this case are ~ered, it becomes crystal clear that Defendants have completely failed to state ~,~per basis for Tex. R. Civ. P. 0~ 166a(c) summary judgment, as a matter of both fact~ law. CONCLU~{B~ For each and all of the foregoing r~s, Ms. Farmer respectfully requests this Court to deny Defendants' M/MSJ in ev~ particular. Ms. Farmer has stated completely viable tort claims for sexual assaul~d invasion of privacy integrally related thereto. ~ Her claims are timely pursua~Civ. Prac. & Rem. Code § 16.0045(a). Alternatively, even assuming § 16.003(a) "~ied to her invasion of privacy claim, its limitation period &l" was tolled until May, ~' when Ms. Farmer actually learned from the FBI that the ~ nude photos of her~y existed and what they depicted. Moreover, Ms. Farmer's two tort claims ha#solutely nothing to do with the TCHRA. Defendants' Motion to Dismiss is ~~y untimely and their Traditional Motion for Summary Judgment fails as having no factual basis and hence no legal vitality. Defendants should not be permitted to unilaterally characterize Ms. Farmer's claims to suit their desire to avoid 'legal and moral responsibility for her egregious sexual abuse and Ms. Farmer's claims should be fully aired in a public trial upon their merits by a jury of the Parties' peers. 41 Respectfully submitted, THE LAW FIRM OF ALTON C. TODD By: ----,-,-------,,-,----- Jeffrey N. Todd t State Bar No. 24028048. 312 South Friendswood e Friendswood, Texas~ 281-992-8633 (f . 281-648-8633 c~· ile) ATTORNEYS F LAINTIFF ~ 0~ ~(J o{P Q$ os.t£@ ~~ a ~ "~~!© dP ug~ ~ o~(j} ~({;) §::>Q! ~ 42 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was forwarded to the counsel listed below, via the method(s) indicated, on this the 2oth day of February, 2015: Gregg M. Rosenberg 3555 Timmons Lane, Suite 610 Houston, Texas 77027 Via Facsimile, Efile or CM/RRR 43 12/13/2013 7:52:38 AM Chris Daniel- District Clerk Harris County Envelope No. 7311.9 2013-74668 I Court: 215 By; Nelson cuero No. _ __ ANDREA FARMER § IN THE DISTRICT COURT OF § V. § HARRIS COUNTY, TEXAS HENRI MORRIS and §§ ,';0L ~ SOLID SOFTWARE SOLUTIONS, INC. § _JJ!fl d/b/a EDIDLE SOFTWARE § JUDICl!\~TRICT PLAINTIFF'S ORIGINAL PETITION .~rrtf TO THE HONORABLE COURT: f{f;~"" Plaintiff, ANDREA FARMER, eomplains of HENRI ~S and SOLID SOFTWARE SOLUTIONS, L.L.C., d/b/a EDIBLE SOFTWARE, ani/support hereof would show as follows: Discovery. 1. Pursua11t to TEX. R. CN. P. c , Plaintiff intends to conduct discovery under Rule 190.3, Leve\2, Texas. 2. 3. , "'"'"" Plaintiff, AND~ FARMER ("F'ARMER"), is a resident of Aransas County, place of business at 3603 Westcenter Drive, Suite 100, Houston, Texas 77042. 4. Defendant SOLID SOFTWARE SOLUTIONS, L.L.C., d/b/a EDIBLE SOFTWARE, is a domestic limited liability company and may be served by serving its EXHIBIT i t'IJ'' registered agent, Henri Mon·is, at its registered b11siness address of3603 Westcenter Drive, Suite 100, Houston, Texas 77042. Request Pursuant to Rule 28 5. To the extent that Defendants are conducting business under an am~!!la name or trade name, this suit is brought under TEX. R. CN. P. 28, and Plaintiff maKe~:;!' that, upon answering this suit, Defendants make answer in their correct legal and tratf~8;n1es. Jurisdiction & Venue 6. This Conrt has personal jurisdiction over all pa.J~ilfo this suit. The Court has subject matter jurisdiction over this case because in controversy is within the jurisdictional limits of the Court, and no other Court ffi~,.,:ive. jmisdiction over this matter. 7. Venue is proper because the defendant has its principal place of business in Harris Coun1y, and the claims corporate and individual defendants arise out of the same transaction or series of trm1~1))l'lfeJJtdaJJt HENRI MORRIS was the President and CEO of the as Plaintiff FARMER's direct supe1visor. 9. of 2011, Defenda11t MORRIS, acting in his capaci1y and within the scope of his dun~>B' President and CEO of Defendant SOLID SOFTWARE SOLUTIONS directed FARMER to join him on a business trip to New Jersey and New York to meet clients. During this business trip, Defendant MORRIS dmgged FARMER by putting an unknown substance into a drink, unbeknownst to FARMER. Dming this time, MORRIS attempted to sexually assault 2 FARMER and took pich1res of her while she was unconscious. Because FARMER was unconscious she did not know and was not able to know that impermissible pictures had been taken of her until she was shown the pictures in or around March of2012, 10. Causes of Action A. Assault as to Defendant HENRI MORRIS Defendant MORRIS intentionally caused physical c~t , ~ with Plaintiff FARMER directly and throngh the instmmentality of drugs, while ~ or should. reasonably have known that FARJ:viER would find that contact offensiv.ee mor'IJcative. SOFTWA~LUTIONS, L.L.C. 0 B. Assault as to Defendant SOLID cla~fendant MORRIS was employed in II. a managerial capacity by Defendant SOLID FARMER's supervisor. At all times sr At all times relevant to FARJ\ffiR's relevan~ose ARE SOLUTIONS, L.L.C., and was claims, Defendant MORRIS was acting D~dant SOLID SOFTWARE SOLUTIONS, L.L.C., within the scope of his employment by and exercised control over FARM=-~~t:ue of his managerial authority as President and CEO of Defendant SOLID SOFTWA9~sOLUTIONS, L.L.C., and as FARMER's supervisor. Consequently, Defendant ARE SOLUTIONS, L.L.C., is vicariously liable for of Privacy as to Defendant HENRI MORRIS 12. MORRIS intentionally intruded on Plaintiff FARMER's seclusion have known that FARMER would find that intrusion highly offensive or provocative to a reasonable person. 3 B. Invasion of Privacy as to Defendant SOLID SOFTWARE SOLUTIONS, L.L.C. 13. At all times relevant to FARMER's claims, Defendant MORRIS was employed in a managerial capacity by Defendant SOLID SOFTWARB SOLUTIONS, L.L.C., and was FARMER's supervisor. At all times relevant to those claims, Defendant MO~vas acting within the scope of his employment by Defendant SOLID SOFTWARE S~NS, L.L.C., and exercised control over FARMER by virtue of his managerial autlwri~resident and CEO of Defenda11t SOLID SOFTWARE SOLUTIONS, L.L.C., and ~R's supervisor. Consequently, Defendant SOLID SOFTWARE the actions of its President and CEO. o, SOLUTIONS~., @i is vicariously liable for 14. As a result of the foregoing, suffered the following damages for which she seeks recovery: a. Physical pain, suffering, an~:irment from the time of the incidents described herein through trial~, . b. Mental anguish m · iety from the time of the iucidents described herein through trial; c. d. @siltnir•gs and earning capacity sustained fi·om the date of the incident to the time of trial. Exemplary Damages 15. FARMER would show that the actions of Defendant MORRIS, individnally and as imputed to Defendant SOLID SOFTWARE SOLUTIONS, L.L.C., were done intentionally and with malice and/or gross negligence. Consequently, Plaintiff FARMER 4 seeks exemplaty damages in an amount within the discretion of the jmy and within the jurisdictional limits of the Comt. Prejudgment and Post-judgment Interest 16. Plaintiff FARMER fmther seek prejudgment and allowed by law. Notice to Maintain Records 17. Notice is SOFTWARE hard copy or electronic formats that reference either their employment with 18. Plaintiff FARMER hereby trial by jmy on all issues presented in this case. WHEREFORE, PREMISES~IDERED, Plaintiff ANDREA FARMER respectfully request that the Defendants be ~ to appear herein and that upon answer and trial of this together with pre-judgment and post-judgment interest at the that they have such other and fmther relief, at law or in equity, to which the.ms,elv.es en ti tied. 5 Respectfully submitted, THELAWFIRMOF ALTON C. TODD By: _____.,_J8illy~__,N.l.-'-.--±_Tatl~----,.- Jeffl"ey N. Todd ~ State Bar No, 20092000 ~ 312 S. Friendswood D~··, ~v Friendswood, Texas 7, (281) 992-86il3 (281) 648-8633 Pi nile No. ATTORNEYS PLAINTIFF ./ 6 12/18/201311:19:53AM 713-755-1451 Page 214 Filed 13 December 18 A11:20 Chris Daniel· District Clerk Harris County FAX15672436 CAUSE NO. 2013-74668 ANDREA FARMER § IN THE DISTRICT COURT OF Plainti!f, § § v. § HARRIS COUNTY, TEXAS § HENRI MORRlS and SOLID § .i& JUDICIA~iRICT SOFTWARE SOLUTIONS, INC. d/b/a § EDIBLE SOFTWARE § 2l5TH Dettmdmtt. DEFENDANT'S ORIGINAL ANSWE~ ¢lf o:fj Det~is, Suite 200 Ho_t~n, Texas 77002 ~ 960-8300 (Tel) ~3) 621-6670 (Fax) ~Attontey-in-Charge tor Defendnt1ts OfCounsel: ~ ROSNEBERG SPROVACH ~~ ATTOR[\!EYS FOR DEFENDANTS ©; uager. Operations Office Manager to an Implementation"~ within Edible Software as of November ~ 2011. 3 In the Implementation Role, Barn~s expected to assist new customers with purchased software, either on site or at the~ility. 4 She went on two business trips during her employment; (1) a business trip to ,~ Georgia to attend a trade show on or about October 15, 2011 and (2) a business trip~ew Ol"leans, Louisiana to meet a prospective client on or about November 14, 2011. 5 ~tt continued to work for Defendant Edible Software until in or ©!~ about February 2012, wh~he resigned from her employment. 6 ~ . b. Hill'~ployment History ~~ # 1 In this Plea to the Jurisdiction, the Statement ofFacts is entirely the same as what has previously been presented to the Court in the Motion ibr Summary Judgment. They are incorporated here as a matter of convenience. For the purposes of this plea all facts are to be constmed most favorably against Defendants. 2 Barnett Dep., Ex. 1, at 24:5-15, 'BarnettDep.,Ex.1,at27:11-12. 4 BamettDep.,Ex.l,at25:12-l8. 5 Barnett Dep., Ex. I, at 29:17-25; 30:22-31:7; 75-76. 6 BarnettDep., Ex. 1, at 11:25-12:5. 3 Plaintiff Keri Hill ("Hill") began her employment with Defendant Edible Software on December 12, 2011 as a Sales and Marketing Manager. 7 As part of her job duties, Hill was required to meet and help secure prospective clients. 8 To that end, she went on two business trips during her employment; (I) a business trip to New York to meet prospective client Anchor Seafood on or about January 8, 2012 and (2) a business trip to Chicago m~iJ!Ma, Illinois to meet prospective client Pasqua! on or about January 22, 2012. 9 Hill wa~ed by Defendant ~ Morris to attend the New York business trip. 10 She initiated a requ~ttend the Chicago trip and told Defendant Morris that if he thought it would be a goo~ing expedence for her she would like to attend. 11 On April 11, 2012, Hill was put ~aid leave of absence and was subsequently notified of her termination approximatel~~~eeks later." c. Stewart's Employment History o"'@;j ~ Plaintiff Stacy Stewart ("Stewmt") ~~ her employment with Defendant Edible Software in or about February 2011. 13~ewart was employed to implement software at customet· sites. From March 18, 20 ~~tgh March 22, 20 II, she attended the Boston Seafood Show. Upon her return, DefenOI"' for orror ~ E.1 Hang up or line fall E.2) Busy E. 35 No an s we. r E. 5) Exceeded max:. E-mail size E. 4) N v fa --'m l 1 e conn e c; t l on ~ !@rift~ - TTHE LAW FIRM OF l"i!flt!,'t: j11 ALTON C. TODD -·-~ -~ k:U,~t> Re ~~ Mlradl.l 'Ru:w.ll ~ ~~ IXillyM(II.Lfattj ofl.t:>S9 Jtt1yJ2.,20N ~i Nttrn'lter 0333833"lii' ~ ~~ i'!O!'l$mn.:£a.illal'URPOSBSONLY ¢ "" g ~ ~ 1 Mvewmeyed: the ('OH~ oC $6,100.00 Wtnj' (tiMt Dl'.d ibM .,.s)...a.J, tlut Ild:ndly nject &~:rue. H'n,.pleu.e&.!Ilrrebl«m~.\'t\ 1 (/J»~ Ktnde!il ft!lerdS', ~ w'Hf70M Jefi'1¢'JN. T«fd JNT/ First, as the Pruitt couti observed, the various provisions of Chapter 21 stwngly indicate a requirement of mandatory exhaustion of administrative remedies. For example, the Section entitled "Civil Action by Complainant" reads, "[w]ithin 60 days after the date a notice of the right to file a civil action is received, the complainant may bring a civil action aga}_ljff the respondent." TEX. LAB.CODE ANN. § 21.254 (emphasi~ded). Moreover, "[a} civil action may not be brought under this suh__.ter later than the second anniversary of the date the complaint rela\ir~~ the action is filed," TEX. LAB.CODE ANN. § 21.256 (West, WU) (emphasis added). Additionally, a judicial proceeding under Cl~· 21 "is by trial de novo." TEX. LAB.CODE ANN. § 21.262 ~ 2006) (emphasis added). Pndtt, 366 S.W. 3d at 745. ~v 0~ Next, although the language of Chapter 21,~es that a person "may" file an administrative complaint, the legisl~~as designed to "encourage [ ] compliance through voluntary res o~ili\', conference, conciliation and 0 persuasion-informal processes ~· than litigation." Schroeder, 813 S.W.2d at 486-87. Thus, the 1)x'f.Supreme Court "do[es] not believe the Legislature's comprehensive ~edial scheme allows aggrieved employees to proceed on dual tracksQbne statutory and one common-law, with inconsistent proce~dures~l\?~ndards, elements, defenses, and remedies," since interpreting t tute to allow for simultaneous litigation would frustrate its purp~ ajjle House, Inc. v. Williams, 3 I 3 S.W .3d 796, 799 (Tex.20IO); s~~hroeder, 813 S.W.2d at 486-87. Third, b~ the general purpose of Chapter 21 was to provide for the exec uti~ of the policies of Title VII of the Civil Rights Act of I 964 and its so ~uent amendments, and "the United States Supreme Com1 ha[ d) 0 ...l»~-{tt clear that Title VII include[d]" the requirement to "first fil[ing] a ~· e with the EEOC" prior to bringing a civil action, the Texas statute ~~hould also be interpreted in the same manner. Schroeder, 813 S.W.2d at 485-87 (citing Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974); McDonnell Douglas Cmp. v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Love v. Pullman Co., 404 U.S. 522, 523, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972)); see TEX. LAB.CODE ANN. § 21.001(1) (West 2006). Thus, "failure to file a complaint and to pursue ... administrative remedies with the Commission 22 creates a jurisdictional bar to" discrimination claims. Schroeder, 813 S.W.2d at 488; Waffle House, 313 S.W.3d at 804-05. Pruitt, 366 S.W. 3d at 746, citing Schroeder, 813 S.W.2d at 487. This precedent from the Texas Supreme Comt requires the exhaustion of administrative remedies with the TWC prior to filing suit for intentionally aiding or abe~~crimination. Pruitt, 366 S.W. 3d at 746. ~U The Pruitt comt cited to Waffle House in setting forth ~ for the precise pre- o©Ji emption/exclusion remedy that the Defendants are asking the ~to invoke in this case. The task of the court is resolving the jurisdictional issue in Efi!Jt was to determine whether the gravamen of the plaintiffs claim was essentially on~ial discrimination and whether his common law causes of action were based on the sll)~ourse of conduct giving rise to a statutory ~ discrimination claim. Because Chapter 2l~re-emptive when the actions forming the complained of torts are entwined with thdomplained of discrimination, the test for the court was to determine whether or not t~4~re additional facts that were unrelated to the statutory discrimination claim that would ~~ndently suppOlt a tort claim. Pruitt, 366 S.W. 3d at 749, citing Waffle House, 313 S."'~t 808. 6~"' The Texas Suj~Court has held that a plaintiff cannot proceed on a common law track for the alleged as~ff when such claims are t'OOted in facts inseparable from a claim of harassment, re#d exclusively by the statutory provisions of the TCHRA. A statutory cause of action~brogate a common-law claim if there is a "clear repugnance between the two causes of action."'" If claims involving sexual harassment are pursued as common law torts, 139 Waffle House v. Williams, 313 S.W.3d at 802. 23 "the statutory procedut·es and limitations applicable to such claims would be rendered superfluous."'" Plaintiffs base their common law claims on Defendant Morris' alleged actions of unwanted sexual contact during business trips where both Defendant Motl'is and Plaintiffs were acting in their capacity as employees of Defendant Edible Software. Sue~~ hamssment allegations occun-ing within the employment relationship are exclusiv~ govemed by the ~ TCHRA. This CoUt1 has no jmisdiction because the TCHRA i~exclusive remedy for workplace sexual harassment, and the plaintiffs have not satisfi~urisdictional prerequisites to bringing suit. 141 "/!!J' a, Plaintiffs' claim that Defendant Edible So~~ liable for the alleged unwanted sexual touching by Defendant Morris ~ ~tted to the TCHRA scheme for such employer-employee relations. ~ 0 Plaintiffs admit in their petition th~Jlncidcnts of assault complained of all occurred when, "Defendant Morris was employe~iMJ. managerial capacity by Defendant Solid Software Solutions, L.L.C.," and that "~ant Morris was acting within the scope of his employment."'" An employe~Qhility for unwanted sexual touching by another employee is limited to the tailored ~ scheme that specifically covers employer liability for sexual harassment. 14' Even t1Jl:wgh unwanted sexual touching is considered simple assault undet· Texas o{,({Y' law due to its ~sive and provocative" nature, such claims arising in the workplace are exclusively ~ned by statutory regime. 144 A reading of the Petition in this case clearly reveals ~ 140 Id. at 802. 141 /d. at 801 (The court agreed with Defendant's assertion that the common law claims asserted by Plahtliffshould fail as a matter of Jaw because the TCHRA is the exclusive remedy for workplace sexual harassment). 14 ' PlaintiffS' Second Amended Petition, at ~~18-19. 143 Wqff/e House v. Williams, 313 S.W.3d at 803. t4·1 Jd. 24 that the alleged conduct occurred while Defendant Monis was acting in his capacity as an employee of Defendant Solid Software Solutions.'" Additionally, Plaintiffs attended the business trips as part of a function of their employment with Defendant Solid Software Solutions. Hill was required to meet and help secure prospective clients as patt of her job duties. 14' Therefore Hills' attend~~the business trip to New York to meet prospective client Anchor Seafood on or about ~\J'Y 8, 2012 and the business trip to Chicago and Peoria, Illinois to meet prospective ~¥Pasqua! on or about January 22, 2012 was within the scope of her employment. "~the Implementation Role, Bamett was expected to assist new customers with purchase~vare, either on site or at their facility, therefore she attended business trip/shows ~~~vith clients as a part of her job.'"' Stewart described the reason for her attending the ~;ljton Seafood show business trip, the event in which she alleges the incidents of assault o~d, as related to the scope of her employment. Stewart testified that when she was invited ~he trip, she was told by Defendant Morris that her duties and responsibilities while on~~ was to "observe and learn the product," a function of he~· job. 149 ~ All Plaintiffs in the cl,!ll~ttended the business trips as part of their work and as a patt of ©~ their employment with ~dant Edible Sofuvare. The allegations of unwanted sexual contact ~ allegedly took plac~le on business trips within the employer-employee relationship. Thus, Plaintiffs claim~rding employer liability for alleged sexual harassment must be governed by theTCI-~~ 145 See e.g., Mosley v. Wai-Mal'l Stores Texas LLC, 2011 WL 2893086 (N.D. Tex. June 20, 2011). 146 Hill Dep., Ex. 2, at 45:24-45:1. 147 See Waffle House v. Williams, 313 S.W.3d at 803; See also HillDep., Ex. 2, at 169:21-23;169:24-170:1. 148 BamettDep.,Ex.1,at25:12-18. 149 Stewart Dep., Ex, 3, at 57:23-58:12; 86:2-9. 25 b. Plaintiffs' claims of assault stem from the same facts that support a sex discrimination (sexual harassment) claim exclusively governed by the TCHRA. Plaintiffs' common law claims of assault are preempted because the TCHRA provides the exclusive remedy for workplace sexual harassment. The Texas Supreme Comi has recognized that a plaintiff is bm1'ed from recovery based on a common law tort where a st~~·y remedy is available for the same conduct that underlies the tort claim. 150 The TC~~onfers both the right to be fi·ee from sexual hamssment and the remedy to combat it. 151 1\\h.en the gravamen of a ·~' plaintiffs case is TCHRA - covered harassment, the Act fot~~s common-law theories predicated on the same underlying sexual harassment facts." 152~Q~ ·\f@ w- The TCHRA provides a specific statutory scheme.~ remedy for sexual harassment."' This includes discriminatory conduct in the form of ~nted sexual touching creating a hostile ·~ environment claim as a result of sexual work environment.'" The elements of a hosti~"§:·k me~~Jl of a protected class, an allegation of being harassment include plaintiff being a subjected to unwanted sexual advanc~~~assment based on sex and harassment affecting a term or condition of employrnent. 1 ~ims with facts that give rise to those elements fall under the TCHRA which provides a~Yuue for a plaintifl' to assert a claim of liability on an employer when subjected to sexuaQ~sive verbal and physical contacts in the workplace, Plaintiff Bam&alleged that Defendant Morris, "attempted to sexually assault" and •;:£(/Jj' "attempted to ~~ly remove her [Barnett's] clothing."'" Plaintiff Hill stated that she "awoke 150 ~ Wqf}le H01 e v. Williams, 313 S.W.3d 796, 802 {Tex. 2010). 150 Id 152 Wajjle House v. Williams, 313 S.W.3d 796, 813 {Tex. 2010)(citing Pl'uitt v. Int'l Assoc. of Fire Fighte1·s, eta!., 366 S.W.3d 740, 747 (Tex. App. 2012)(citing Black's Law Dictionary 770 (9th ed. 2009)([T]he gravamen is "the substantial point or essence of a claim, grievance, or comph1int."). '"Tex. Lab. Code §21.051. 154 Hardy v, Fleming Food Co., Inc. 1996 WL 145463 (S.D. Tex. 1996), "'Prigmore v. Houston Pizza Ventures, Inc., 189 F. Supp. 2d 635, 642 (S,D, Tex. 2002). '"Plaintiffs Second Amended Petition, at~ 9. 26 with memories of Morris' face pressed against her and being sexually assaulted by Morris."'" Plaintiff Stewatt alleged that Defendant Morris massaged her shoulders and propositioned to finish the massage in her hotel room. Plaintiffs allege that these actions took place during business trips where Defendant Morris was acting in his capacity and within the scope of his duties as President and CEO of Defendant Solid Software."' According to~#· Defendant Morris' alleged conduct was "offensive or provocative."'" Addition~ their deposition testimony, the Plaintiffs allege the following incidents of unwanted s~~ouching. Plaintiff Hill's speculations of unwanted sexual touchin~~ the Chicago business trip include: o~ (~ • Defendant Morris holding her hands.'"' ~ ~ • Defendant Morris' face pressed against!~~ ofPlaintiffHill's face. 161 • Defendant MoiTis held Plaintiff Hil~Ynd and rubbed in her vaginal area and up and g down her leg.'" @ Plaintiff Barnett's speculations of ~ted sexual touching during the New Orleans business trip include: "-~ 0 • Defendant MorriU@Ji:'il Plaintiff Barnett's sweater off.'" Plaintiff Stewart speci'lreally stated that she believes she was sexually harassed while working o~@'~ for Defendant E~oftware in her deposition testimony as follows: Q: ~~o you know what the term sexual harassment means? A~"'yes. Q: Do you believe you were sexually harassed working at Edible Software? 157 Plaintiff's Second Amended Petition, at~ 12. 158 Plaintiff's Second Amended Petition, ~~ 8-9, 10-11. "'D's First Amended Petition, at 1l1l15-17. 160 Hill Dep., Ex. 2, at 122:1-123;22. 161 Hill Dep., Ex. 2, at 123:11-20. 162 Hill Dep., Ex. 2, at 123:18-124:15. 163 See Plaintiffs Second Amended Petition; Barnett Dep., Ex. 1, at 109-116:12. 27 A: Yes. Q: Okay. And your complaint against Edible Software in the civil suit is for sexual harassment, correct? A: Yes."' Stewart also testified: Q: ... When you contacted the lawyer named Bashinski, what was it~ you though youhad? rj/jj A; Sexual harassment. F'~ Q: Okay. So even as earlie1~as early as April of 2011 you kh\,w you had a sexual harassment claim, correct? That's why you went to see .a &er? A; fu.~ ~ Q: Okay. ln other words, you lmow, in your lawsui~lege that you were, as you say, sexually harassed, right? Correct? ~~ A: Yes .166 rpj'; .'}!!! Stewart's assertions of unwanted sexual touching dm·~~oston Seafood Show business trip include: ~ §"@ 0 . • Defendant Morris allegedly massaged ~~uldet·s in the hotel lounge area on March 21,2011.'" ~(J • Defendant Morris allegedly aska Jd.at156. ~ ~QNCLUSION & PRAYER WHEREFORE, P~S CONSIDERED, Defendants move that the Court grant summary judgment 0i~ favor as to all such claims as to which the Court finds it proper to do so, award Defe1i,~ts costs of court, and grant Defendants all such other and further relied, at law or in ~~as to which Defendants may show itself to be justly entitled. 34 Respectfully submitted, Is/ Gregg M. Rosenberg Gregg M. Rosenberg Texas State Bar No. 17268750 * ROSENBERG & SPROVACH 3518 Travis Street, Suite 200 Houston, Texas 77002 (713) 960-8300 G~ (713) 621-6670 (Facsim~ Attorney-in-Charge f~~ndants 0~ OF COUNSEL: ~ ROSENBERG & SPROVACH ATTORNE~R DEFENDANTS 0~ CERTIFICATE OF SER~E w; I ce1tify that a l!ue and correct copy of the fo1~ng instrument has been fmwarded via Texfile.gov Electronic Service on this the 21 ' 1 day qf~bruary 2014 to: ~ JeffreyN. Todd rF~ 312 S. Friendswood Drive ~~! Friendswood, Texas 77546 g (281) 992-8633 (Tel) riJ?o (281) 648-8633 (Fax) o 0J"Y Q~ ls/GreggM. Rosenberg ~ GREGG M. ROSENBERG g~ ~a o;f1{j ~(iJ ~ ~ 35 2/27/2014 5:15:59 PM Chris Daniel~ District Clerk Harris County Envelope No. 591022 By: JONATHAN PATTON Cause Number: 2012-65503 KERI HILL AND MICHELLE BARNETI ( IN THE DISTRICT COURT OF ( VS. ( HARRIS COUNTY, TEXAS ( HENRI MORRIS AND SOLID SOFTWARE ( :>Jk, SOLUTIONS, INC. D/B/A EDIBLE SOFTWARE ( 55TH JUDICI~STRICT PLAINTIFFS' RESPONSE TO DEFENDANTS' P~ TO THE COURT'S JURISDICTION ~ 0~ Plaintiffs Keri Hill, Michelle Barnett and StaJ:>.~tewart, ("Plaintiffs", 0~ "Assault Victims"), herewith respectfully respond to the@dants' Plea to the Court's Jurisdiction, heretofore filed herein by Defendant~~·i Morris and Solid Software Solutions, Inc. dfb/a Edible Software, ("Morri~ible", collectively "Defendants''); and, in support provide the following inform~, argument and authority: ·. RELEVANT FACTS~ PROCEDURAL HISTORY ~ The Assault Victims filed t~ Third Amended Petition on August 23rd, 2013. Following relevant discover~endants filed a Motion for Summary Judgment, ("MSJ"), which this Court werly denied. On February 21st, 2014, Defendants filed their Plea to the Court's Ju~ion, ("Plea"), to which the Assault Victims herein respond. To quote the inimit~~ogi Berra, "It's like deja-vu all over again."• In their instant Plea, exactly as the~ in their previously denied MSJ, Defendants obdurately cling to the g self-ser~.@stortion that this case involves nothing more than routine workplace discrimination claims and not the appalling reality that the Assault Victims were surreptitiously drugged, completely incapacitated and then sexually molested and otherwise violated, The single grudging reference to that awful truth in Defendants' Plea ' http:/fwww.baseball-almanac.com/ quotes. fiillill!l!i!!EX~H!i!'!II!!BI!i!TIIl!l!ili!!llltA 1 j \ \D /) is renounced in the very next sentence: "Defendants are cognizant of the severity of the allegations being asserted by each of the Plaintiffs in this suit. Regardless, even if the allegations of assault of a sexual nature were true, the exclusive remedy lies within the confines of the TCHRA." 2 As the Assault Victims will clearly show in their following analysis, that is a denial of established fact and a manifestly inco~~atement of controlling Texas law; and, consequently, the Plea should be denie~rt:jach and all of its particulars. ~rfj II. ~~ 0"'~ ARGUMENT AND AUTHORI'F:r:f366 S.W.gd 740, 745-46 (Tex.App.- Texarkana 2012, no pet.), regarding all clai~ising out of workplace discrimination, consequently the Assault Victims had ~Vstatutory procedural obligation to exhaust TCHRA administrative remedie~re commencing the instant suit; (2) while the question of whether this Court !l)}l~ evening, (84:2-8); and, they stayed there about 30'V tes or less, (84:9-13). She went to a setup buffet and obtained some appetizers on~@ate, (84:18-19), and she poured herself '"'~ a vodka soda drink, (84:20-23), at a self-~catt, (85:2-14). However, she only drank about half of it, (86:16-19). ~ That day, before arrivingJR"'~41ounge, Ms. Barnett had eaten breakfast, a salad for lunch and two bags of pea~~ the plane, (85:16-25);, then, in the lounge, she had the appetizers, (85:19-21).~e Morris arrived in the lounge, they only stayed there a short time, (86:12-16).~9ris wanted to go to a restaurant for dinner and he made to-go ~ cup drinks to take ~e drive there, (86:19- 87:10). Morris poured the remaitung half on her drink into ~fo-go cup and then he added to it, (87:9-16); and, he prepared a to-go drink for~lftoo, (88:4-5). Importantly, Morris took her drink from her to make her to-go cup drink, (88:6-9); and, during the time he made it, he went behind her so that she could not see what he was doing, (88:6-20). They did not have reservations, (89:7-18); so, they then wentto Mr. B's for dinner, which was across the streetfrom the hotel, (88:19- 89:6). There was no wait at the restaurant and they were seated immediately, (89:19-25). 10 Ms. Barnett only had a sip or two of her to-go drink because it was very strong, (90:8-11). When they went into the restaurant, the drinks were taken from them, (89:24- 90:7); so, they ordered more drinks, hers again being a vodka soda, (90:15-18). Up until that time, Manis had done nothing assaultive, (91:25- 92:6); but, near the end oftheir meal, significant events occurred, (93:8-11), During the course of her di~"'toth of them drank and she consuming a total ofthree drinks, (92:10-24); the d~Qasting about two hours, (92:25- 93:1). Near the end of dessert, a waitress asked ~~fthey wanted more o@;J) drinks, and she said no, (93:8-14); however, she excused h~o go to the restroom and when she returned to the table, two drinks were sit~ere, one for her, (93:14-16; 95:13-16). Morris claimed the waitress had just br~em, (93:19-24). Since she didn't want this new drink, she only had a few sips of~'bJ4:12-24); then she dumped it out into her water glass, (94:21-25; 95:17-24), bec~e didn't want it, (95:22-25). Then, they left to walk on Bou~ Street to look at the customer's building, (96:20-24); but they never got th~doing into a piano bar called PJ's instead, (96:25- 97:7). (She later corrected t!Q~e to Pat O'Brien's, (145:15- 146:2)).Going in was Morris' idea, (97:8-21); sh~tipsywhen they arrived there, (97:22-24). Morris ordered more drinks even tho~1fe did not ask her if she wanted one of, if she did, what kind, ~ (98:18-25), The dt~he received, she later learned, was a "Hurricane", (99:1-15). She nq;~G . didn't refuse ~'e;;lft•ink, but she felt Morris was intentionally trying to get her to drink more tha~vanted to, (99:20- 100:4), because she had specifically told him at the end of dinner that she didn't want to drink more because they had to see the elient in the moming, (100:5-10). But, she felt compelled to dt·ink more at the piano bar because she was with her boss and she was trying to "go along", (100:17-21; 101:19-23). The Hmricane was a very big drink, (100:22- 101:8); and, she didn't !mow he was ordering it and 11 therefore didn't have a chance to say she didn't want it, (102:6-21). Once it came, she a third to a half ofit, (103:6-7), because it was very "alcohol intensive", (103:8-13); but, even so, while she was again in the restroom, Morris ordered another one, (103:16-23). This time, she told him directly she didn't want another and asked him why he had ordered it, (104:21-24); in response, he told her to drink the new, full Hurricane a~ moved the half-full one away from her, (104:25- 105:3)! ~a s~~ compelled to drink She again told him she didn't want it, (105:6-8); but, some of it and she drank about a quarter of it, (106:2-~e later learned tbat tbe principle alcohol in such drinks is Bacardi 151 proof ru~o6:7-17); and, she could not recall ever before having drunk such potent alcoh~~:l-6). She has no recollection of leaving the piano bar; she can only remember ani'llrm pulling her out of her chair and that {!? is the last thing she remembers, (105:17~08:9-13). Later, she discovered the next morning tbat it was Morris, who had p~ on her arm, (108:18-23). The next thing she remembers is Morris pulling he~~er off, (109:19-22); then, she remembers running to the bathroom in her hotel~ to throw up, (110:1-5; 110:25- 111:3). She remembers saying, 'Oh, this isn't hap~g to me." (111:7-9); and she remembers someone pulling her clothing off and sh@fearful for her safety, (111:10-14). But, she doesn't have a vivid recollection of ~~g else, (116:10-12). And, it is here that the real horror of her experience b~es exquisitely clear. This good and decent woman was rendered incohere~~the intentional drugging of Morris; and, she is left now to forever wonder about what vile things he did to her while she was unconscious. Did he rape her? Sodomize her? Photograph her naked as he did others? Share those salacious photos with others? The possibilities are extensive and the implications foul and odious. And, despite Defendants' persistent assertions to the contrary, her awful victimization is not erased 12 because she has no memory of it; in the same way that a surgeon's malpractice blunders are not negated by the fact that the patient was asleep when his tort occurred! In the morning, she called her husband, (116:13-15). She told him about the previous evening and that she felt uncomfmtable and didn't want to go see the client, (117:12-15). Her husband advised her to go to the client's in a separa~~nd to write what she could remember down and to tell Morris that what had ha~gd made her very uncomfortable, (117:18- 118:1); which she did, (118:2-3). Lat~ notes upset her so oci@ much she threw them out, (118:4- 119:3). Opposing coun~essed Ms. Baxnett about why she didn't call 911 or otherwise report that night; h~e said she couldn't be sure a crime had been committed, 122:3-23); and, she ~nted to go home and make the evening go away, (123:12-18). But, she didn't gg~me immediately; she prepared herself ~ for the day ahead even though she didn't ~o, (123:19- 124:25); and, then she texted Morris that she was uncomfortable ab~he previous night and she wanted to go home and would get herself to the airpo~~h5:1-4; 126:10). Morris' breathtakingly deceitful response was to show up im~ly at her door indicating that he was very unhappy, (126:11-25)! He knocked ~r door, but at first she didn't answer because she wanted him to go away, (127:~but, he kept knocking "like forever", (127:4-5). Through the door, she told him~~ away, (127:11-14); but, as she entered the hallway with her packed bag, he was st~e, so she had to talk to him, (127:13-25), 81~ him she was uncomfortable and wanted to go home, (127:25- 128:5); she was not 100% sure it had been Morris; but, she felt that he had assaulted her and tried to ruin her clothing, (128:13-25). She was certain she was with him and left the piano bar with him, (129:1); and, she felt he had done this to her, (129:7-9). In response to her discomfort, suave predator that he is, he told her he didn't understand her concern 13 because she had come to his room and laid in his bed, where he didn't touch her, (129:18- 20); but, she adamantly disagreed with this version of the events because she didn't even know where his room was, (129:21-24; 131:9-14); and, she told him so, (131:6-14). He responded that he "respected her and didn't want to lose her", 131:15-18). Very interestingly, Morris gave her back the sweater he had taken o~~ffering no explanation as to why he had it, (136:14-19). He asked her to go see it,Yient, and though ~he did, (132:11-12). she didn't want to, she finally agreed to do so, (132:1-10); However, because of their conversation tlley were late arr~t the client's, so Morris lied and said tlley had problems getting the car out oft~rage, (134:1-7). Defendants, just as they did in their MSJ, ~~uch of the fact that Ms. Bamett testified that her claims against Morris arise ftQ~ns role as her supervisor in the course ~ and scope of employment, (137:18-21); b~ectfully, she is not a legal expert and has no basis to make such a legal assertion~ey also focus on her testimony that her claims concern her employment and M~$~onduct in a work context, (198:11-16); but, again, she is not qualified to make s~etermination. Ms. Barnett is the highly traumatized victim of a vicious assault ~1e is not a qualified expe1t on Texas or federal employment law. Moreover, Defen~9offer not one word of explanation as to how drugging a woman ~ at dinner for pu~s of sexual molestation relates in any conceivable way to job o(!:J' performance ~~rkplace conditions; for the obvious reason that it does not. W~e returned home, she talked to her husband, (145:7-9); because she just couldn't understand how she went from being in control of herself to having no recollection, (145:10-14). She decided then she needed to look for another job, (146:8-14); and, she began to look for one, (146:15-16). She liked Beth Jackson, but didn't trust her and tlley did not discuss what happened, (147:22- 148:10); and, she not discuss it with 14 any other Edible employees until a few weeks later, when she talked with a new employee, Erin Bjork, (148:11-22). She specifically told her she thought she had been drugged and that Morris had attempted to sexually assault her, (149:25- 150:18). She also told her husband that, (150:19-21). She made no attempt to preserve a urine sample or other evidence because she just didn't have the opportunity to do so, further conversations with Morris about the matter until about * (151:~. She had no a~M later, which he initiated, (153:21-25); he said he was concerned for her and ~~plied she was fine, o!?@ (154:1-7). A similar exchange occurred on another occasio~4:8-14). She just tried to avoid him, (155:11-19), unless contact with him was re~®a, (155:20-22). Ms. Barnett never discussed the matter wi~v employee Michelle Byrd, who dealt with sexual harassment matters, becau~~e felt it would be unsafe to do so as Morris was the company president, 158:~9:2); thus the anti-harassment plan was "unsafe" for her, (159:9-24). She thougl~e idea that Morris would lose his job while she kept hers was ridiculous, (159:3-~ owned the company and she was a hireling, and any complaint she made wo4e gone directly to him, (160:1-24). After Morris had been arrested for the cri~~ charges against him, (including one flowing from her complaint), she told M~~nk Lettieri, with her former employer, what happened to her, ~ (163:4-8). After r~ng her assault to the FBI, she had a difficult time, (170:6-7). But, she couldn't j~it until she found another job because she couldn't afford it, (172:21- 173:1). L~~en she did quit, she needed family assistance to make ends meet, (187:15- 22). She finally talked to Keri Hill about her assault, at the suggestion of Erin Bjorlis admitted in a news broadcast that MolT~~s arrested with such drugs on his person, (126:20-25). Her next recollection w~g in her hotel room and Morris was there too and a to-go cup was on her dres~~he asked Morris to leave and he did so, (129:17-23). Based upon his druggi~~ on the flight on this trip, she concluded that he had drugged her before in th~ew York concierge lounge before they ~ went to dinner, (130:14-24). The govern~ld her that tests confirmed such drugs on Morris' person, (131:10-16). ~ The next day was spentwi~client, (135:9-10); and throughout the day, Morris made several sarcastic comme~at the trip took a long time because "they had to stop seven times" for her, (135~). That night, they went to dinner \lith the client and she had a glass of wine, (~~19). On the way to dinner, Morris grabbed her hand and she pulled it back qui~ecause she felt extremely uncomfortable and he told her she was being silly, (1f:'9:). Then, as they entered the restaurant, he told her he would hold her hand du~nner under the table, but she ignored him, (137:18-23). When they got back to the hotel, he asked her to go to the casino. When she refused, he got very frustrated and sarcastic and began whining and pouting that he would have to sit by himself, so she relented and said she would have one drink with him, (138:6-15). They went into a bar and Morris ordered two drinks; but, when they came, he took them behind a dessert menu 22 with his back to her, so she walked over and got her drink, a glass of wine, and sat down. He was on the phone. (138:16- 139:5). She was worried he might do something to it, (139:10-15). She knew at that point that something was seriously wrong, but she had trouble "getting her head around it", (139:16-23). Even so, she was scared to report what had happened, (140:4~~d, she was very confused and trying hard to make sense of what had actu~appened to her, (140:17-22). However, she told her husband about it when sh~ome, (140:11-16). In the meantime, she went with Morris back to Chicago fro~·ia to see another client, (141:2-25); and, there were no more problems, (142~®). When she did talk to her husband, he saw a bruise on her arm; but, she tolQ~he hit a wall because she ·wanted to "wrap my head around a much bigger conve~tion that I knew we were going to have ~ to have," (143:12-15). She first noticed th~se when she awoke in Peoria the morning after her bizarre previous day, (144:7~. Finally, she and her husband discussed the matter frankly, (15-17). They m~~unch and she told him she was ve1y upset about having major memmy losses ~o successive business trips, (145:3-11). He told her that when they talked on the ~ while she apparently was in the car ·with Morris enroute to dinner, her r?.r;» speec~as slurred and he was astonished at the extent of her ve1y ~ uncharacteristic ~dng, if that was what the problem was; and even then he told her she might ha «f-in drugged, (145:15- 146:1). She had no recollection of even having that ~ phone c~~ation, (146:4-13). She then told her husband all the rest that had happened in both New York and Chicago; and, he became very sad and upset and suggested that she discuss the matter with a friend of theirs who is a narcotics investigators with the Houston Police Department, (146:15-24). She did have that conversation and was referred to the FBI, 23 (147:16- 148:9). As a result of that, a sting was arranged with her at the Houston airport, so Morris could be arrested, (149:23- 150:3). Not surprisingly, the day after Morris was arrested, she was placed on leave of absence and less than two weeks later, she was fired, (154:23- 155:13). Needless to say, her abrupt termination for reporting Morris' repeated, depraved violations of her stands as profound and eloquent ~on of her apprehensions about ever reporting Morris' conduct. She believ~Wt would be both pointless and dangerous and she was absolutely right! Since th~~cidents, Ms. Hill has o~ci@ suffered lots of anxiety, panic attacks and "fear of movem~"tts7:11-16). Both Monis' civil and criminal lawyers pressed~ Hill for long hours on many details surrounding these matters; but, while De~~~s seized upon various aspects of her answers in their MSJ and continue to do SQ~ the instant Plea, they at the very most ~ present only a broad range of relevant fa~out which reasonable minds could differ. Ms. Hill has pt·esented more than eno~testimony to support her prima facie liability allegations. Therefore, the Plea ~·ly defective as a matter of both fact and law and should be denied in all of its ~~Iars. Plaintiff Stacy Stew~stified in relevant part, in her discovery deposition which lasted in excess of fiv~rs, that she lives in Austin, (4:23-24), with her husband and ~ two children, \8~2), a 13-year-old daughter and a 12-year-old son, (9:3-12). She worked at E.:lq,f~ '§Sy only about six weeks, (11:4-7). She was a software implementation speciali~4-15). She graduated from the University of Texas at Austin in 1993, with a bachelor's in business administration, concentrating in business information management computing systems, (18:8-19). To get her job at Edible, she interviewed with Morris, (21:7-25). The meeting lasted an hour and she also met Trevor Morris and Beth Jackson, (23:14-18); and, she understood travel would be required in this job, (23:3-10). 24 She was offered the job there and she accepted, (24:3-10); and, this was in late February, 2011, (24:12-20). Her testimony in regard to her abuse by Morris is a bit curious in that opposing counsel chose to question her in the context of what she told the FBI when she was subsequently interviewed by them about it; so in transcripted form i~third-party feel. But, in that contest, she stated that she travelled to Boston wit~J·ris to attend the 0~ Boston Seafood Show, (46:1-8), on March 18, 2011, (57:3-~ she went at Morris' invitation, (57:12- 58:8). Morris made all of the travel ~ments, 59:10-15). They stayed in a Maniott hotel while there, (61:2-6). At ~~ouston airport, she drank a Tanqueray & tonic, (62:14-21); and, during the fl~Boston, she had a glass of wine, (61:24- 65:7). §!P After she arrived in Boston, she ~orris in the lobby and they checked in together, (63:3-6); then, as instructed~~met him in the hotel's concierge lounge for drinks, (63:10-16). There, she n~~ris, Beth Jackson and Beth's mother, who lives in the Boston a1•ea, {64:2-10 ). S~ another Tanqueray & tonic, (64:8-11). She made that drink herself; but, a short"'~"' later Morris made her another one and brought it to her, g~:~;f''' (64:22- 65:3), She als~ some snacks, (65:19-20; 66:2-4), Then, they went to dinner at ~ Legal Seafood, (~-21). At dinner, she had a glass of wine, (67:8-9). They left the restaurant at~ 8:45pm because she wanted to walk to an adjacent mall to buy a shirt before t~es closed, (67= 12- 68 :2). From then on, her recollections were very sketchy, (69!15-70:1). The next morning, she woke up with a severe hangover, (46:18-19; 47:3-6); and, she went to a nearby mall to look for a Colee and some food to make herself feel better, {52:14-16). She explicitly stated that her hangover was caused by Morris' drugging her by 25 putting something in her drink, (73:3-24; 73:25- 75:7). Her hangover felt like she had been run over by a truck, (75:8-13). She did not see Morris put the substance in her drink, (83:25- 842); but, she is certain that he did, (84:3-7). Later that morning, she attended the food show, which lasted all day, (85:3- 86:9). When they all returned to the hotel, they, (meaning herself, Morris, ~~ackson and another man), again gathered in the concierge lounge, (87:4- 88:~Kere, she had two Tanqueray & tonics, (88:11-17). Manis made the second dr~ut of her sight and brought it to her, (89:4-9; 89:23- 90:4). Then, they went ~~er at a pizza restaurant, {90:4-10). Beth's mother joined them at dinner, (90~>~). There was no drinking at dinner, (90:22-25); and, she could recall that s~~·ned to the hotel where Morris instructed her to join him in the bar while he :~he others to "go ahead", (91:2-9). They had a conversation during which Morris t~r how important she was to the company, (92:10-14); then, the conversation turn~~irdlyto another woman's breasts, (92:15-18). Then, Morris went to ge~~~ for them at the bar; and, after he returned, he began to massage her should~92:18-21). This was out of the blue, (48:17-20; 11-14); and, it mad.e her very unc~~rtable. But, before she could protest about it, he stopped, (49:17-20). Later, wh~ywent up to their respective rooms, Manis asked if he could ~ come into her roo~ continue the massage, (44:19- 45:4; 46:1-6; 51:3-9; 93:13-18). She quickly decli~d Morris left, (51:10-15); although she thinks he may have tried to get into her~' (93:21-25). During that evening, she had two Tanqueray & tonic drinks, both of which Morris brought to her, (46:9- 47:2). The next morning, she again awoke with a severe hangover, (99:14-18); which she again attributes to being drugged, (101:12- 17i 101:24- 102:15). 26 It deeply upsets her that about the first night she no recollections and has no idea what happened to her; and, on the second night, Morris offensively touched and propositioned her, and on both following mornings, she awoke with severe hangovers, (102:8-12), Also, she feels that because Morris' arrest "with drugs that co~o that" on his person proves her darkest fears, (103:8-11). It worries her that she ~@t know if she was raped, (104:10-11). Once again, opposing counsel asked M~wart if she was 0~ sexually harassed and she agreed, (55:20-25; 93:5-12; 116:13-2~:5-15); however, she o~er suit are, (149:18- 150:7); J therefore, she is not qualified to discuss its legal ~ s. She can only speak to the facts she knows. Moreover, it is unfortunate in the~eme that while she is plagued by the haunting fear that she was raped while in~e and totally vulnerable through no fault of her own, Defendants' only focus i~ dismiss the matter as a routine matter of workplace misconduct which sho~~ disposed of on irrelevant technicalities, Mter she returned to~ston, from the Boston trip, Morris criticized her a~t.e didn't tell him she was offended by his conduct because performance, (125:7-22); ~Ml "she felt the time to ~o was with a lawyer in a courtroom", (129:3-22). While the ~· company had a h~ resources department, she felt it would have been futile to talk to it because it w~aded by Allen, Morris' son, (129:23- 130:17); and, she never received the comp~~exual harassment policy, (130:18- 131:9). However, when Morris fired her in April, only six weeks after she began, she bluntly asked him if it was because she declined the massage proposition and he cut her off, saying, "We're not going there." (131:25- 132:19). In regard to her overall testimony, it should be noted that there are disturbing consistencies in the facts alleged by all three of the Plaintiffs; each was isolated 27 on a trip with Morris shortly after beginning work at Edible; drinking was a prominent feature of every trip; Morris encouraged the drinking and brought drinks he made to each woman; each suffered blackouts and memmy loss; each alleges physical offensive contact; each was primed with virtually identical soothing assurances; each was made to feel ve1y uncomfortable; and, each fears she was raped while unconscious. An~~ this was at the hands of the company president and CEO, many years theikYor and married. Individually and in toto, they clearly state viable prima fa~saultjbattery claims against the Defendants, which have nothing what~o do with workplace discrimination. o,jjff In addition to the facts presented in the d~ depositions of the three Assault Victims, additional depositions have been, ~rein obtained as well. Interestingly, ~ Defendants made no mention whateve1· ~m in their previously denied Motion for Summa1y Judgment and they persis~ that glaring omission in their instant Plea. However, their testimony is velyore.ant to the Court's instant analysis, so they too are succinctly summarized. Q~ Andrea Farmer te~8 that Morris was frequently inappropriate in the office, such as hugging wo...k'-~nployees ~~/ and drank excessively, (22:6-15); and, she saw him pour something ~eth Jackson's drink in Chicago, (22:16-19). Indeed, she felt he was "constantly it&~ropriate", (24:3-5). She worked at Edible for three months, (24:14-15); (May, ~~ugust, 2011, (68:23- 69:2)), and, in fact she complained to Morris' sons, Trevor and Allen and she was told, "That's just the way he is. Just ignore him." (24:16- 26:6). On two trips, she observed him being sexually inappropriate with Beth Jaclife did not, (54:9- 56:2; 57:~:5; 58:25- 59:19; 60:5-19). The FBI now has the photos, (61:1-7). She also con~q that Morris confided to her that he also took nude photos of ~" Andrea Farmer, (~~19). . She sa~orris often travels with small "airplane" bottles, (63:8-10); which she assume~~ed to "re-cycle" liquor, (63:24- 64:4); and, she has seen Morris often make drinks for others, (68:12-14), including the use of "to-go" cups, (69:1-3). Therefore, though she disagrees with Andrea Farmer's testimony "too%", (67:14-16); and also 100%, (83:12-13), ·with that of Keri Hill, (76:22- 80:15), and even v.>ith that of Stacy Stewart, (85:17- 88:3), Samantha Gluclc, (88:8-25) and, even Ms. Farmer's allegations about the 37 Aunt Sally's comptroller, (91:20- 93:2); such multiple disagreement must be filtered through her obvious bias in favor of her longtime lover, (107:20- 108:8), Defendant Morris. On the basis of this mass of testimony, it was clear to the Court in its denial of Defendants previously filed MSJ and its should continue to be clear in t~nt analysis Am~~ Petition claims, of Defendants' equally flawed Plea that, as set out in their Third what Morris did to the Assault Victims is morally and legally ~~trous. Morris didn't discriminate against the Assault Victims, whether in or o~e workplace; rather, he physically attacked and sexually violated them! Mor~~ expressly confessed that he invited or induced the deferential and trusting ~$victims across state lines; where in remote cities he mendaciously drugged~ and all of them into intentional insensibility, with the explicit intent offor~y removing their clothing, photographing them naked and sexually assaultin~em while they were completely inert and vulnerable. He treated each of ~.J;?fJas slabs of meat, to be abused while completely insensate and defenseless, fm~sole purpose of gratifying his perverse, deviant sexual appetites. And, because hi"~n-practiced drugging technique was ve1y effective, he now ~~ comes to this Court ~ng that the claims of the Assault Victims be trivialized and ~~ disposed of nude~ rubric of the TCHRA, which was intended by the Legislature to provide an or# mechanism to deal with workplace discrimination and most certainly never in~d as a procedural means to protect deviant sexual predators. In seeking such a result, the Defendants brazenly ask for perfect immunity from personal, moral and legal responsibility for Morris' overtly criminal and intentionally tortious acts. What an astonishing extremis to twist a "Human Rights Act" into! 38 Both the previously denied MSJ and the instant Plea are factually predicated upon the Assault Victims' physical inability to remember all of the details of their victimization. But, such chemically induced diminished memory does not erase either the occurrence or magnitude of their violation; it only emphasizes just how appallingly awfully they were treated. Defendants' persistent pursuit of summary and/ or proced~"~ief on this dismissive basis defies logic and common sense and is fatally defec~~r four important nea~~entical, even though reasons. First, the stories of all of the Assault Victims are they were separate in time, place and victim; which very ~~cingly establish Morris' modus opemndi, as well as his malevolent, confessed ~~anal conduct. Second, these allegations are further confirmed by the depositi~rin McMullan, Andrea Farmer, and Samantha Gluck, the latter two being ad~~al assault victims who do not happen to be plaintiffs in this case. So, thus f~y five victims corroborate Morris' vile conduct.' 2 Third, no less than a grand j~f the United States of America considered the fractured memories of the thoro~~raumatized Assault Victims and came to the polar opposite perception of such~ch Defendants now urge upon this Court; finding sufficient cause to indict~ on multiple federal felony charges which precisely mirror the actual claims eac~~ntiff makes. And, fifth, Morris has already pled guilty to this ~ entire disgusting ~~rio! b. PlaintL~ssert g"'l' valid assault claims against Morris under Texas law. T~~ should be clear that not one single Plaintiff asserted any claim whatsoever which is based upon or arises out of sexual harassment in tllEi worl-~onstrate any resulting physical injury. Fisher, 424 S.W.2d at 630... ,:~ ~- Similarly, in Fisher we applied the same nWecause 'personal indignity is the essence of an action for battery;~nd :~equently the defendant is liable not only for contacts which do actual ..' cal harm, but also for those which are offensive and insulting.' 424 . . d at 630. Each of these decisions rejected arguments that proof of ll>Jl'Ys cal injury should be required. This is because torts inherently involvi~ental anguish claims demand proof of mental anguish, not physical oain. (Emphasis added)," ·(jfY Moore, 684-85. . ~Y c. Plaintiffs assert v~qxemplary damages claims against Edible. Further·, in Fis~Q~ Supreme Court recognized the liability of a tortfeasor's employer for exemp~'V damages in certain circumstances, including the precise facts of o~({?' the instant cas~U "WE·' turn to the question of the liability of the corporations for e ary damages. In this regard, the jury found that Flynn was acting wit n the course and scope of his employment on the occasion in question; that Flynn acted maliciously and with a wanton disregard of the rights and feelings of plaintiff on the occasion in question .. , The jury further found that the defendant Carrousel did not authorize or approve the conduct of Flynn. The rule in Texas is that a principal or master is liable for exemplary or punitive damages because of the acts of his agent, but only if: 44 (c) the agent was employed in a managel'ial capacity and was acting in the scope of employment... The above test is set out in the Restatement of Torts s 909 and was adopted in King v. McGuff, 149 Tex. 434, 234 S.W.2d 403 (1950). (Emphasis added)." Fisher, at 630. See also Moore v. Lillebo, 722 S.W.2d 683, 685 (Tex. 198~ty of Tyler v. Likes, 962 S.W.2d 489, 495 (Tex. 1997); Pleasant Glade Assembl~d v. Schubel·t, 264 S.W.3d 1, 16 (Tex. 2008); Texas Dept. of Pub. Safety v. Cox'[~ Newspapers, L.P., 343 S.W.3d 112, 115 (Tex. 2on). ~ • c?@ d. Even if Texas law did not authorize assault~~s, under its choice of law rules, such claims still exist under th~~ ohelevant states. Assuming arguendo that the TCHRA and f/' House are somehow determined to bear on the instant claims, the intentional tofts Morris committed against each of the ~"' Plaintiffs occurred in states other than ~; and, as confirmed by the Superseding Indictment now pending againstMor~nd his confessed guilt, such intentional torts give rise to claims governed b~~aw of the state in which each attack occnrred. Therefore, under Texas' choi~aws rules, the law of the respective assault situs states should control; and, as h~~er discussed, each state's law allows for the claims here rg~ asserted. Q In Gutien~ollins, 583 S.W.2d 312, 318 (Tex. 1979), the Texas Supreme Court overruled lex~~elicti, in tort actions. In its place, the Court parsed the many available alternat~ories and ultimately decided that: "in the future all conflicts cases sounding in t01t will be governed by the 'most significant relationship' test as enunciated in Sections 6 and 145 of the Restatement (Second) of Conflicts." I d., at 318. Each case's contacts must be considered individually and, although being often fact- intensive, is a matter oflaw to be decided by the court. Jd., at 319· More, in subsequent 45 decisions, the Supreme Court emphasized that the application of the contact factors is not a mathematical calculation of totaling contacts; but, instead must focus on the most significant contacts. In 1984, the Supreme Court decided Duncan v. Cessna Aircraft ~~65 S.W.2d 414 (Tex. 1984). That case involved a tort, a fatal air ct·ash; but, i~~ contained a significant contract issue, the issue of enforceability of a release. P~Ying to that issue, o\Qj the trial court determined that New Mexico law controlled. T~stin C.C.A. reversed o@gl and ruled that Texas law governed the release as it was e~ed in Texas; and that the rule of lex loci contractus required the law of the place ~ making of the contract. Both parties appealed that decision, arguing that: "the~approach is the most significant . relationship methodology of the Restatement~ond) of Conflict of Laws, which w[as] adopted in Gutierrez v. Collins, 583 S.W.2rl'~ (Tex.1979), for tort choice oflaw issues." i;,g I d., at 420. g The Supreme Court reite~tlits holding in Gutierrez that the rule of lex loci delicti, (application of the la>~re the wrong occurred), was simplistic and arbitrary and often led to inequitab)R~ults .in a modern, highly mobile society. It noted that the ©~ "significant relationsh~ethodology" of §§ 6 & 145 of the Restatement (Second) of ~· Conflicts "offers i~onal yet flexible approach to conflicts problems, ... represents a collection of tf~t thinking on this subject ... [and] include [s] "most of the substance" of all the~~rn theories.' [Gutierrez], at 318." Duncan, 665 S.W.2d at 421. Therefore, for uniformity and because all of the lex loci rules presented impermissible problems, the Comt abandoned all such rules for Texas conflicts analysis: "Consequently, the lex loci rules will no longer be used in this state to resolve conflicts problems. Instead, in all choice oflaw cases, except those contract cases in which the parties have agreed to a valid choice of law 46 clause, the law of the state with the most significant relationship to the particular substantive issue will be applied to resolve that issue," Duncan v. CessnaAilocrajt Co., 665 S.W.2d at 421.See also Torrington Co. v. Stutzman, 46 S.W.3d 829,848 (Tex.2ooo); Drennen v. Exxon Mobil Cm'P., 367 S.W.3d 288, 294 (Tex.App.- Houston [14th Dist.] 2012, reh'g denied, review granted Aug. ~013). Thus, the trial court must decide the issue in the first instancedtermination of the facts, to which the Restatement sections are then applied).);h..t, that decision of o~" whether to apply Texas law is reviewed on appeal de novo. (Sg?~mesota Mining & Mfg. Co. v. Nishika Ltd., 955 S.W.2d 853, 856 (Tex.1996)).~Q~umber of contacts is not determinative; as some contacts are more important~~ ~'>H others because they "implicate state policies underlying the particular substant~ssue. Consequently, selection of the applicable law depends on the qualitative ~~of the particular contacts. [Gutierrez1 at 319," Duncan, at 421. ~U Then, in Hughes Wood Pr·od1jff!jf4nc. v. Wagner, 18 S.W.3d 202, 205 (Tex. 2000 ), the Court added that: .e."'-0 . ~ "[T]he Restatement r~Qres the court to consider which state's law has the most significant ~f~onship to the pw·ticular substantive issue to be r·esolved. See ~~tement (Second) of Conflict of Laws § 145(1) (1971), Section 145(1)~cifically provides that '[t]he rights and liabilities of the parties with i'Mpect to an issue in tort are determined by the local law of the state v.~hic£@fth respect to that issue, has the most significant relationship to the renee and the parties u [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4053434. Public record. Not legal advice.