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000135963
7/07/2008
No. GN 600294
CHARLES H. EMMETT, JR. IN THE DISTRICT COURT
VS.
OF TRAVIS COUNTY, TEXAS
THE AUSTIN BOARD OF REALTORS, ;
DAVID M. FOSTER, ROGER STURGELL,
VICKI HARRIS, AND UNNAMED STAFF
534 JUDICIAL DISTRICT . =
AND DIRECTORS OF ABOR
ew SSS
‘
PLAINTIFF’S FIRST AMENDED PETITION 5
ss
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES Charles H. Emmett, Jr. (Emmett), Plaintiff in the above-styled and
numbered case, and files this his First Amended Petition, complaining of the Austin
Board of Realtors (ABOR), David M. Foster (Foster), Roger Sturgell (Sturgell), Vicki
Harris (Harris), and Various, Unnamed Staff and Directors of the Austin Board of
Realtors (collectively “Staff’), and would respectfully show the Court as follows:
I. DISCOVERY
Discovery in this case should be conducted under Level 2 of Tex. R. Civ.
I. PARTIES
2. Plaintiff Charles H. Emmett, Jr. is an individual who resides in
Williamson County, Texas.
3. Defendant Austin Board of Realtors is a Texas corporation, with its
principal place of business in Travis County, Texas. It may be served with citation
through its President and CEO, David M. Foster, at 10900 Stonelake Blvd., Suite 100
Austin, Texas, 78759.
i
54, Defendant David M. Foster is an individual, employed by the Austin
Board of Realtors, a corporation with its principal place of business in Travis County,
Texas, as its President and CEO. He is being sued in both his individual and corporate
capacities, for wrongful conduct committed on the job. He may be served with citation at
10900 Stonelake Blvd., Suite 100 Austin, Texas, 78759.
5. Defendant Roger Sturgell is an individual, formerly acting as Chairman of
the Board of Directors of the Austin Board of Realtors, a corporation with its principal
place of business in Travis County, Texas. He is being sued in both his individual and
corporate capacities, for wrongful conduct committed in the course of his official duties.
He may be served with citation at 12710 Research Blvd., No. 120, Austin, Texas, 78759.
6. Defendant Vicki Harris is an individual, employed by the Austin Board of
Realtors, a corporation with its principal place of business in Travis County, Texas. She
is being sued in both her individual and corporate capacities, for wrongful conduct
committed on the job. She may be served with citation at 10900 Stonelake Bivd., Suite
100 Austin, Texas, 78759. Suit against this Defendant relates back to Plaintiff's original
petition, filed January 25, 2006.
7. Defendants Various, Unnamed Staff and Directors are individuals, employed
by the Austin Board of Realtors, or serving on its Board of Directors, a corporation with
its principal place of business in Travis County, Texas. They are individuals, referred to
in correspondence from Defendant Foster, or in other internal, corporate memoranda, or
who are referred to or otherwise identified in documents under the corporation’s control,
or who have participated in any way in the conduct complained of below. They will bea a
named and served with citation, in both their individual and corporate capacities, when
their identities are revealed through the course of discovery.
8. This suit will be collectively referred to below as Emmett v. ABOR.
Ill. JURISDICTION
9. The amount in controversy in this case exceeds the minimum jurisdictional
limits of this Court.
IV. VENUE
10. Venue is proper in Travis County, Texas, pursuant to Tex. Civ. Prac. &
business residence of Defendants Foster, Sturgell, Harris, and Staff, in Travis County,
Texas at the time of the events made the basis of Plaintiff's claims.
V. FACTS
11. Emmett is a licensed real estate agent in the State of Texas.
12. Prior to the communications and actions made the basis of the claims in
this case, Emmett entered into an agency relationship with Wes Walters Realty, Inc.,
and/or with Weston E. Walters, its President, “Owner,” and Qualifying Broker
(collectively “Walters”), to engage in real estate brokerage. The effective date of the
creation of this formal, agency relationship was September 3, 2004, the date on which the
Texas Real Estate Commission (TREC) changed Emmett’s status from inactive to active
under Walters’ license. The Application for Sponsorship form is bates numbered
EMMETT 0001, produced by Plaintiff in Emmett v. ABOR.
Rem. Code §§15.002, since Defendant ABOR had its principal place of business, also the
)
13. Walters was a member of ABOR.10712006,
14. As a condition of creating the formal agency relationship with Walters,
Emmett was obliged to “join” ABOR as an associated agent/member. The effective date
of said joining was on September 13, 2004. Said association included the use of ABOR’s
Multiple Listing Service (MLS) and Lockbox System (LBS). The means of joining was
Emmett’s signature on ABOR’s form, executed in Walters’ office. This form is bates
numbered EMMETT 0002, produced by Plaintiff in Emmett v. ABOR.
15. Asa condition of maintaining his “active” status with ABOR, Emmett was
compelled to take a National Association of Realtors (NAR) seminar course,
administered by ABOR, in December 2004, to become familiarized with NAR’s ethical
standards and requirements, the Code of Ethics. Emmett paid a separate consideration of
$27.00 for this course and completed it.
16. The course stressed the importance of being careful to be “ethical,”
emphasizing disciplinary procedures, and possible sanctions, that would arise in the event
of violations. The course materials made it very clear that proper procedure would turn
around a “due process” hearing, complete with a summons, notice of charges,
presentation of evidence, opportunity to answer, and put on defensive evidence, including
the right to call witnesses.
17. Emmett and Walters had a marketing plan.
18. Foundational to going to the market with this plan, Walters required that
Emmett draft requests for advisory opinions from TREC and ABOR, to ensure that the
plan met legal and ethical requirements, respectively. In ABOR’s case, the concern was
that, without such an opinion, if ABOR disliked anything about the plan, subsequent to
its implementation, it could and would convene a hearing against Walters and/or Emmett7107/2008
that could easily result in sanctions, based on NAR’s Code of Ethics. Emmett opined to
Walters, at that time, that, though ethics advisory opinions from ABOR are generally
acceptable, it was (is) not legal for ABOR to voice an opinion about marketing plans,
particularly in the area of price and competition; but Walters insisted, leaving Emmett no
choice.
19. On January 24, 2005 Emmett went to ABOR’s offices, at 10900 Stonelake
Blvd., Suite 100, Austin, Texas, to present the written request for the envisioned ethics
advisory opinion, signed by Emmett and Walters. There is no signature line on the
request itself, so no reasonable person would think that a signature was being requested
from ABOR, on the form proper. This request is bates numbered EMMETT 0004,
produced by Plaintiff in Emmett v. ABOR.
20. Jacklin Hardeman (Hardeman) was the receptionist on duty in ABOR’s
lobby at the time of Emmett’s arrival. Emmett has chosen to sue Hardeman separately,
filed as cause of action number GN 601783, in the 53" Judicial District Court of Travis
County, Texas, styled Emmett v. Hardeman (Emmett v. Hardeman), because her actions
and communications, complained of in the separate suit, are individual, original and/or
unique, though related to the time-frame encompassed by this suit. As each individual, in
the overall fact pattern, is responsible for his/her own alleged torts, Emmett asserts his
right to sue each Defendant individually, or together, as he chooses. Lone Star Salt
Water Disposal Co. v. Railroad Comm’n, 800 S.W.2d 924, 930 (Tex.App.—Austin
1990, no writ).
21. Emmett had just come from TREC, where he had submitted the written
request for the /egal advisory opinion, also signed by both Emmett and Walters. There isa 10172006,
also no signature line on the request to TREC. This request is bates numbered
EMMETT 0003, produced by Plaintiff in Emmett v. ABOR.
22. TREC’s staff attorney read the request, and understood that it requested that
a written opinion be forwarded to Emmett and Walters, at Walters business address; she
complimented the request as being in the exact form required by TREC’s rules.
23. Emmett simply presented the request to TREC, without incident, and left
TREC’s premises.
24. TREC rendered its written opinion and sent same to Walters, as requested,
about a week later. This response is bates numbered EMMETT 0005, produced by
Plaintiff in Emmett v. ABOR.
25. Upon leaving TREC, Emmett went straight to ABOR, a trip of about 20 to
30 minutes.
26. At ABOR, Emmett approached Hardeman, requesting to speak to an
appropriate advisor to whom he could present his and Walters’ request to ABOR, as he
had just done at TREC. The approach was business-like and polite, because Emmett had
no reason to think that it should be any other way. In fact, when Emmett had been to
ABOR’s offices, including the Education Department, in November 2004, with his wife,
he had found the experience to be very pleasant.
27. Hardeman, the receptionist, announced that ABOR does not offer advisory
opinions. The Defendants, in this case, have denied that they do not give advisory
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opinions. They have also denied that they have never given an advisory opinion. Thus,
they have impliedly admitted that ABOR does give and has given such opinions.28. Emmett was stunned by Hardeman’s announcement, and told her that, in his
opinion, she was not the one to say what ABOR would or would not do for its
client/members. At that point she became visibly defensive, angry and “snappy,”
persisting vigorously in her argument that no advisory opinion would be forthcoming,
despite Emmett’s repeated requests to deal with someone else.
29. As the discussion with Hardeman tured into an argument, other ABOR
personnel began to drift into the lobby to see what was happening. In a witness
statement, produced by the Defendants in Emmett v. ABOR as ABOR 0161, one of
Hardeman’s co-workers, Michael Autry, commented: “Nobody was yelling as I walked
through, but I could tell that it was slightly intense and that Jacklin had ‘some buttons
pushed.’” Apparently he has seen Hardeman angry before. This testimony controverts
Hardeman’s affidavit, produced by the Defendants in Emmett v. ABOR as ABOR 0001,
where she represents, under oath, that she remained completely calm and demur
throughout the entire unpleasant interaction.
30. | Hardeman’s sworn testimony regarding the entire event, and her handling
of it, is controverted by ABOR’s “Procedures for conducting business with members who
have lost their privilege of visiting our office” (“Procedures”), produced by the
Defendants in Emmett v. ABOR as ABOR 0005, which requires the following:
“If the member should visit our facility, staff should refrain from confrontation.
Instead, staff should notify their manager immediately. The manager will take the
member to the atrium area (away from other members and closer to security) and politely
remind the member how they are required to interact with ABoR. Jf the member gets
hostile, security should be summonsed and will escort the member from the premises”
(emphasis Emmett’s).
It is highly unlikely to be true that Hardeman would deviate from the script, given
the cloistered, controlling atmosphere at ABOR. And though Emmett had there-to-for
-7-TOTT2006
not been banished (discussed below), his purported, excessive conduct, as alleged by
Hardeman, should have triggered these procedures immediately. According the ABOR’s
Employee Handbook, produced by the Defendants in Emmett v. ABOR as ABOR 0010 to
0014, for violating these procedures (“the association’s policies”) she could be
disciplined, “up to and including discharge.” Hardeman did not call her managing
supervisor, according to ABOR’s organizational chart, produced by the Defendants in
Emmett v. ABOR as ABOR 0008, and she called no one immediately. The proper
conclusion is that events did not occur as represented by Hardeman. And since the
Emmett v. ABOR Defendants have relied on Hardeman’s testimony to justify their
actions, complained of below, and to formulate their defense, they have a problem.
31. | Upon again demanding to speak to someone else, and apparently because
the demand was made in front of witnesses, Hardeman finally called for an advisor from
ABOR’s Education Department to come to the ABOR lobby. As opposed to Hardeman’s
sworn testimony, Emmett requested someone with knowledge of and/or connection to an
ethics advisory or review committee; it was Hardeman’s choice to call the Education
Department.
32. The advisor was Gina Willemsen (Willemsen), whom Emmett has chosen
to sue separately, filed as cause of action number GN 602071, in the 201" Judicial
District Court of Travis County, Texas, styled Emmett v. Willemsen (Emmett v.
Willemsen), because her actions and communications, complained of in the separate suit,
are individual, original and/or unique, though related to the time-frame encompassed by
this suit. As each individual, in the overall fact pattern, is responsible for his/her own—EEEEEEE—EEEE~ TOT TOO0S.
alleged torts, Emmett asserts his right to sue each Defendant individually, or together, as
he chooses (id at 930).
33. | Emmett told Hardeman, in front of the above-mentioned witnesses, that he
had never been treated so rudely, in such a professional context, before. This fact is
confirmed by Willemsen in her so called affidavit, produced by the Defendants in Emmett
v. ABOR as ABOR 0003 (created January 25, 2005, but not notarized until January 31,
2005): “As I was trying to read the document and understand what he was talking about,
he was carrying on a conversation with Jacklin Hardeman; (sic) receptionist at that time,
about how rude she was to him” (emphasis Emmett’s).
34. Willemsen suggested that she and Emmett step out into the main hall of the
building, outside of ABOR’s lobby, and presumably the range of hearing of the witnesses
who were present.
35. Emmett reiterated the request for an advisory opinion to Willemsen, only to
be told again that ABOR does not offer advisory opinions. Upon being asked whether it
is true that, if the marketing plan were challenged, ABOR would conduct a hearing to
determine if an ethics violation had been committed, Willemsen admitted adamantly that
this is true.
36. Emmett next informed Willemsen that the request was signed by a
broker/member, Wes Walters, and that it was his (Emmett’s) opinion that it was patently
unfair to refuse a request for an evaluation of the ethical footing for a specific, planned
course of action, while maintaining the right to review and punish ethical violations
stemming from the same course of action. This seemed especially true in the light of the7107/2008
seminar course, which Emmett had been compelled to take the month before, and
ABOR’s proactive stance about the subject.
37. Willemsen said that she would “pass it on,” and returned to her office,
request in hand. Emmett left the premises, voluntarily and without demand.
38. The conversations between Emmett and Hardeman, and between Emmett
and Willemsen, while “intense,” were controlled and orderly. At no time did anyone
shout, cuss, threaten, or personally demean anyone. At no time did anyone suggest that
they felt threatened, or belittled, on the basis of any slur or pejorative. Emmett was not
confronted, while on ABOR’s premises, for being rude, insulting, demeaning, violent,
aggressive, indecent, profane, or for any other reason. At no time did anyone seek
intervention from the security guard stationed in the building’s entry hall, who was in
“eye shot” of the conversation with Willemsen. Finally, at no time did any one threaten
to call the police, nor were they called for any reason, particularly for Emmett’s
threatening or disorderly conduct. This lack of any official action, especially on
Hardeman’s and Willemsen’s parts, in the light of their allegations, is a huge mystery; it
strongly controverts their testimony. And since the Emmett v. ABOR Defendants have
relied on Hardeman’s and Willemsen’s testimonies to justify their actions, complained of
below, and to formulate their defense, they have a problem.
39. Since Willemsen, as established in her own statement, had followed the
Procedures up to the point of escorting Emmett out into the main hall, to be near to the
guard, the fact that she did not “summonsed” him is proof positive that the contact was
peaceable.
-10-OLS
40. Walters remarked to Emmett, after hearing about the incident at ABOR’s
office from Emmett, immediately after the events of January 24, 2005, that he should
have “warned” Emmett about the attitude at ABOR. Walters commented that ABOR’s
people “think we’re here for the them, not the other way around” (the same assertion
Emmett had made at ABOR), and that they must be handled with “kid gloves.” Walters
also mentioned that he had been called before the Ethics Committee “a couple of times”
for violations (“They’ve had me down there a couple of times”), perhaps thinking that the
most ABOR would do with the disagreement was hold some sort of hearing regarding it.
He concluded by saying that “we'll have to wait and see, but probably nothing will come
of it.”
41. Emmett came away from the events of January 24, 2005 expecting someone
to call Walters, regarding the request. ABOR never rendered the requested advisory
opinion, not even for Wes Walters, and never even acknowledged the request, as proven
by the fact that they did not produce any evidence of having done so, as requested by
Emmett. In fact, the Defendants admit in discovery that they cannot even locate the
request in their records, and had to ask Emmett for a copy, produced in Emmett v. ABOR
as EMMETT 0004. What makes it interesting is that this piece of evidence is the only
thing that could have objectively corroborated or further controverted Hardeman’s and/or
Willemsen’s testimonies about the events of January 24, 2005. Plaintiff deems this
disappearance to be an act of spoiliation of evidence.
42. According to Hardeman’s sworn testimony, Hardeman proceeded to the
manager’s office to talk to “Cindy,” who went to talk to “Gina” (presumably the
-li-Defendant in Emmett v. Willemsen), beginning the pattern of defamatory publication, and
republication, complained of below.
43. On January 26, 2005 Defendant David M. Foster (Foster) sent Hardeman a
Memo requesting to know if anyone else had been present when “Mr. Emmett called you
a ‘s...0f a b.... (sic) or were you alone with him?” Since this memo was also produced
by the Defendants in the course of discovery in Emmett v. ABOR, as ABOR 0151, and
the Defendants could produce no such corroborating testimony, the answer to Foster’s
question must clearly be “no.” At the same time, this memo clearly demonstrates that
someone had published, or republished, Hardeman’s defamatory communication to
David Foster. Whoever the intermediate or final source to Foster, Hardeman was the
originator of the allegations. And though Hardeman was the originator of the defamation
against Emmett, it seems likely that the publication went up, and over and up, through the
hierarchy, which, according the Hardeman’s affidavit, included “Gina.” Regardless of
the route of transmission, it is completely obvious that the Emmett v. ABOR Defendants
believed and acted upon these wrongful allegations.
44. The Defendants’ Privilege Log, produced in Emmett v. ABOR without a
bates number, includes an entry for January 31, 2005 wherein Defendant Vicki Harris
(Harris) solicited Hardeman’s and Willemsen’s written statements, on behalf of Foster.
45. These written statements are admitted by Defendants, and shown by
documents produced by the Defendants, to have been created before January 31, 2005.
Thus, they were prepared not in anticipation of litigation, as falsely claimed by Foster,
but rather as a part of, and in anticipation of, committing the conduct and
communications complained of below.
-12-46. Harris also acted as notary public, in the creation of Hardeman’s and
Willemsen’s so called affidavits, thus conspiring in, encouraging, and facilitating their
conduct and communications complained of below.
47. Hardeman’s affidavit, finally dated January 31, 2005, created at Foster’s
request, solicited by Harris, and asserted by Foster as part of the basis for the publications
and conduct complained of below, states the following (Emmett’s controverting
comments are in parenthesis):
a) Emmett came into ABOR’s offices, on January 24, 2005, “very upset;”
she said she could tell because of Emmett’s body language, and the tone of
his voice, “very loud and angry;” “Everything was tried to assist Mr.
Emmett but it was clear that no type of assistance would please him since
he was angry upon arrival to ABoR...”
Emmett—{The above quoted phrases, though normally innocuous, are
common law and statutory libel per se, in this context, acting as attacks on
Emmett’s business and personal character and reputation. Additionally,
this testimony is odd and absurd, given the nature of Emmett’s quest at
ABOR that day, and the previous courses of dealing at both TREC and
ABOR, which were very routine and peaceable. Also, she did not follow
the prescribed procedure, if Emmett had been as angry as she says,
impugning her testimony; not cogent, not credible.)
b) Emmett said, “I have a legal document that need to be signed in a very
hostile voice (sic);”
Emmett—(Again, citing Emmett for hostility, in this context, is common
law and statutory libel _per se, acting as an attack on Emmett’s business
and personal character and reputation. Also, Hardeman obviously did not
read the document [as the attorney at TREC had done], a request for an
ethics opinion, not a signature. And “hostile” about what? Hardeman
does not testify that she followed any particular, reasonable procedure,
including the one prescribed in the “Procedures,” for dealing with this
situation.)
-13-c) Hardeman practically begged Emmett, three times, to tell her what
department he wanted her to call to help him;
Emmett—{This testimony is also not cogent or cedible: the receptionist
needed the client to tell her whom to call to solve his problem? What
about “immediately” calling her manager?)
d) “I ask him again, sir, what department do (sic) your form need to go
too (sic) and then he said, don’t start with me and that bureaucratic bullshit
you just get me someone right now, so then he replied I need Education;”
Emmett—(First bureaucracy is “bullshit,” then Emmett, the client,
mystically, abruptly thinks to request “Education”? But more to the point,
asserting that Emmett cussed in a public and professional environment,
especially in the light of the accusation of hostility, is common Jaw and
Statutory libel _per_se, acting as an attack on Emmett’s business and
personal character and reputation.)
e) “Now at this time it left Mr. Emmett and myself in the front together,
he said again don’t give me that bureaucratic bullshit you son of a bitch;”
Emmett—(Regarding the cussing, ditto the rejoinder made in “d.”
Additionally, Hardeman seems to imply, in the quote above, that she and
Emmett were left alone together, at the point of his worst, purported
cussing. This testimony is dubious, since no one else heard this cussing,
as verified above and below. But if Emmett were so hostile and profane
as she testifies, why did Hardeman allow herself to be alone with him,
against policy? And if Emmett was finally getting what he wanted,
someone other than Hardeman to talk to, why the sudden, additional
attack? [Normal people do not get angrier when they are getting what
they want.] And most men do not call a woman a “son of a bitch,” even if
they do want to cuss one out, which Emmett did not—it’s stupid and
meaningless, Again, Hardeman is not cogent or credible.)
f) “I ask (sic) Mr. Emmett to please have a seat in order to get some
distance between the both of us since he was so hostile and someone will
be up shortly, he then backed away from the desk after he heard the front
door open...;”
-14-10712006,
Emmett—(Hardeman is insinuating criminally assaultive conduct, on
Emmett’s part—common law libel and slander per se.)
g) “He then told Gina that I was rude too (sic) him and I replied in a calm
voice that I was not rude Mr. Emmett you were yelling at me;”
Emmett—(No other witness corroborates this “yelling.” In fact, Michael
Autry testifies that “nobody was yelling,” and Brett Boydston states, “I
was standing by the front desk towards the very end of the
conversation...J missed the yelling [Emmett’s emphasis on Boydston]..../
didn’t hear any threats, inappropriate language, etc...” These two
witnesses fully contradict and controvert Hardeman’s testimony [see
ABOR 0161], and it is not Willemsen’s testimony that Emmett was
yelling or cussing [see ABOR 0003]. But more to the point, asserting that
Emmett was yelling in a public and professional environment, especially
in the light of the accusations of hostility and cussing, is common law and
statutory libel _per_se, acting as an attack on Emmett’s business and
personal character and reputation.)
48. Hardeman’s statement is not cogent, clear or credible, stating mostly
opinion and not facts.
49. Hardeman’s statement fails to conform to the standards of a proper
affidavit, and is not admissible.
50. For her part, Willemsen appears to go out of her way, in her statement
turned “affidavit,” solicited by Harris and asserted by Foster as part of the basis for the
publications and conduct complained of below, to find something negative to say about
Emmett (Emmett’s controversions are in parenthesis):
a) “He said in a rather ugly tone, ‘You work for me, not the other way
around.””
Emmett—(“Rather” is not a fact, but an opinion, and inappropriate for an
affidavit. The quote from Emmett is the absolute truth, and needs no
defense; Emmett freely admits saying it. “Ugly” is a nondescript word,
and a relative concept, adding nothing to Willemsen’s affirmative defense
of substantial truth, while it is statutory libel per se, in this context, acting
as an attack on Emmett’s personal character and reputation.)
-15-TO1T2006
b) “His tone became louder and he referred to the Code of Ethics and said
that it was clear that we (Board) didn’t care if members were ethical or
not.”
Emmett—{As above, “louder” than what?—telative, nondescript, adding
nothing to Willemsen’s defense. “(He) said that it was clear that we
(Board) didn’t care if members were ethical or not” is common law libel
per se, as a direct attack on Emmett’s business character and reputation, as
well as statutory libel per se, as another direct attack on Emmett’s personal
character and reputation. It is also a very dubious allegation, given the
overall factual context, and is not cogent or credible.)
c) “Mr. Emmett displayed unprofessional as well as very abrasive
behavior and looking back I can honestly say that I was feeling a bit
apprehensive talking to him and felt strongly that we hadn’t heard the last
of him.”
Emmett—(“Unprofessional behavior” is again a direct attack on
Emmett’s business character and reputation, common law libel per se.
“Very abrasive behavior” is a direct attack on Emmett’s personal character
and reputation, statutory libel per_se. “I was feeling a bit apprehensive
talking to him” falsely imputes dangerous, criminal conduct on Emmett’s
part, statutory libel per se. And while having made the
insinuation/imputation, Willemsen also uses the qualifier “a bit.” This is
an indeterminate amount, but suggests a small amount, enough to libel
Emmett, while simultaneously controverting Hardeman’s testimony on the
same subject [Emmett denies having done anything that should have made
a reasonable person “apprehensive”]. And since, like Hardeman,
Willemsen did not “summonsed” the guard, this report of purported
apprehension is gratuitous, self-serving and useless for purposes of
meeting her burden, under the affirmative defense of substantial truth.
“We hadn’t heard the last of him” indicates that “we” intended to hear the
last of him, a judicial admission of her intent to tortiously interfere in
Emmett’s contract with Walters and ABOR, as discussed below.)
opinion and not facts.
52. Willemsen’s statement fails to conform to the standards of a proper
31. Willemsen’s statement is not cogent, clear or credible, stating mostly
affidavit, and is not admissible.
-16-TOTT2006"
53. In a memo cover sheet to Foster, dated January 26, 2005, covering her
memo to him, dated January 25, 2005 (apparently before Vicki Harris “turned” it into an
affidavit), produced in Emmett v. ABOR as ABOR 0150, Willemsen writes: “Here is the
document that you asked me to write up. My report of the incident may not be as strong
as Jacklin’s, but this is my recollection of the events that happened to me” (emphasis
Emmett’s)—clear evidence of a collaboration and/or conspiracy between Foster, Harris,
Hardeman and Willemsen, and showing Willemsen (with Hardeman) to be the source of
the tortious publications and actions that followed.
54. The Defendants’ Privilege Log indicates that Hardeman’s and Willemsen’s
false allegations, against Emmett, were published and republished repeatedly, inside and
outside of ABOR, over the course of the following days. Looking at the Log, it is clear
that Foster and/or Harris were the progenitors of the activity.
55. Harris’s name appears thirteen times in this Privilege Log. She was
instrumental in the communications and conduct of and between Foster and Staff,
regarding the wrongs committed against Emmett, complained of below. Thus, she was
an integral part of a conspiracy, and is jointly and severally liable for each and every
publication or act.
56. Foster’s name appears fourteen times in the Privilege Log. Aside from his
own direct wrongful conduct, complained of below, as President and CEO of ABOR he is
jointly and severally liable for any and all wrongful conduct committed by his staff.
57. Sturgell’s name does not appear in the Privilege Log. But as the then acting
Chairman of the Board of Directors of ABOR he was the ultimate vice-principal, and as
such was responsible for, and liable for, all of the conduct of the organization on his
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watch. As indicated by the Defendants inability to produce any evidence to the contrary,
he did not exercise due caution and care to direct the corporation’s business, to keep it
out of legal trouble, either through reckless disregard or as an intentional act. He is thus
vicariously liable for all of the wrongful conduct of the whole corporation, as complained
of below.
58. One week later, on January 31, 2005, Walters called Emmett to say that
Foster had called him, to republish Hardeman’s and Willemsen’s defamatory
communications (the Defendants admit, in Emmett v. ABOR, that Foster’s call was made
on January 31, 2005). Walters began by saying, “Well, it’s worse than you said,”
showing that he had come to doubt Emmett’s word. He continued, saying that Foster
claimed that Emmett had “thrown a fit” at ABOR’s office, and had called one of the
female employees “a bitch” (not a “son of a bitch” as Hardeman contends). Walters
further informed Emmett that Foster claimed to have a videotape of “the whole thing,”
(which these Defendants admit they cannot find, “after a [another] diligent search,” and
the spoiliation of more evidence) as well as “affidavits” from two employees swearing to
the facts (the Hardeman and Willemsen “affidavits,” referred to above). According to
Walters, Foster further informed him that Emmett was no longer welcome on ABOR’s
premises, because of his (Emmett’s) threatening, rude conduct.
59. Emmett denied the allegations, saying “It didn’t happen, Wes,” and
informing Walters that he wanted to view the affidavits and videotape, suggesting that the
latter must have been produced by a machine with a very good audio capability, since it
was not readily visible, and yet could record him (Emmett) calling someone a bad name.
Emmett also said that he expected to be given a “due process” hearing by ABOR, the
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proper procedure under the NAR Code of Ethics. Emmett also asked Walters why it had
taken Foster a week to act, if the allegations were true, to which Walters answered that he
did not know. Emmett’s defense to Walters must have placed some doubt in Walters’
mind, since he arranged a meeting with Foster to view the evidence, on February 9, 2005,
after Foster returned from an out-of-town trip.
60. Subsequently, however, Walters decided that he was not interested in “going
down there” with or without Emmett, a condition that Foster had put in place regarding
the February 9" meeting at ABOR’s offices. Walters also said that if Foster said they
have the evidence that they claim, that was “good enough for him” (Walters). Walters
further opined that Emmett was “finished down there” (at ABOR), and that he (Walters)
could not have an agent, who was not allowed to go to ABOR’s offices, associated with
him. Walters continued that if he maintained his relationship with Emmett, and that if he
sent anyone “down there,” that they (ABOR’s staff) would be wondering if this was “the
Frankenstein,” and that he could not have his reputation and business relationship with
“the Board” thus impinged. When Emmett reminded Walters that he had said that a
viewing was “fair enough,” Walters merely replied, “The decision is made.” Walters
concluded by informing Emmett that he was sending back the latter’s license to TREC,
ending their agency relationship.
61. Foster next sent Walters a letter, dated February 4, 2005, produced and
verified in the course of discovery in Emmett v. ABOR as ABOR 0156, following-up on
his previous phone conversation with the latter, and again republishing Hardeman’s and
Willemsen’s defamatory communications. In this letter Foster repeated his charges that
Emmett had been “rude” in his behavior, “coarse” in his language, and insulting to a
-19-RR
female employee. In commenting upon his prohibition against Emmett’s physical
presence at ABOR’s offices, he also opined that he had “no choice but to protect the
safety and welfare” of his employees, implying that Emmett is dangerous (criminal).
Foster copied Emmett, and Defendant Roger Sturgell (Sturgell), in his capacity as
Chairman of the Board of Directors of ABOR, on this letter.
62. The Defendants have produced no documentary evidence that this letter
was placed before the Board of Directors by Sturgell, nor that Sturgell answered Foster’s
letter, nor that Sturgell took any other action regarding these matters. Given the
sensitivity of the issues, Sturgell’s proven, admitted silence can only be viewed as a
ratification of both Foster’s acts, and through Foster of the acts of everyone else. He is
thus jointly and severally liable for ali the communications and conduct complained of
below.
63. Foster refused Emmett’s repeated requests, placed by phone and e-mail, the
latter produced by the Defendants in Emmett v. ABOR as ABOR 0152, 0153, 0157, 0158
and 0160, for a hearing, with an opportunity to view the evidence. Emmett thus
concludes that Foster completely believed Hardeman’s and Willemsen’s allegations
against Emmett, adopting them as his own, and making his communications and conduct,
to Walters, Sturgell, and others, absolute republications of Hardeman’s and Willemsen’s
allegations, complete with all the intended results.
64. Foster admits that he never contacted Emmett to get his side of the story,
before making allegations on ABOR’s behalf, by phone and letter to Walters, nor before
engaging in all the other actions and conduct complained of below.
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VI. CLAIMS FOR SLANDER
A. FOSTER
65. The allegations of Paragraphs 1 through 64 are incorporated by reference as
if set forth fully in this Paragraph.
66. Defendant Foster has slandered Emmett, both individually and as a vice-
principal and/or employee of ABOR, by recklessly and/or intentionally, willfully and
maliciously publishing and republishing to Wes Walters, on the phone, on January 31,
2005, facts about Emmett that were false, that any reasonable person would consider
defamatory, and that were intended to injure, have injured, and will continue to injure,
Emmett. The sources of the factual statements, made and remade by Foster, were false
written and verbal statements made by Jacklin Hardeman and Gina Willemsen. His
liability is joint and several.
67. Defendant Foster has also slandered Emmett, both individually and as a
vice-principal and/or employee of ABOR, by recklessly and/or intentionally, willfully
and maliciously communicating to Vicki Harris, Brett Boydston, Michael Autry, Beth
Gatlin, Amanda Herring, Andrew Knieberg, Carrie Stallones, Kimbra Froehlich, Rebecca
Partida, Rita Brousee, Roxane Campbell, Stanley Martin, Steve James, Sylvia Medrano,
Tamara Warner, Anthony Petry, Merle Long, Roger Sturgell, Joseph R. Knight, Allison
Bowers, other unknown staff and directors of the Austin Board of Realtors, other
unknown staff, associates and partners of Baker and Botts, LLP., and perhaps other
additional persons, by the verbal publication or republication, of facts about Emmett that
were false, that any reasonable person would consider defamatory, and that were intended
to injure, have injured, and will continue to injure, Emmett. The sources of the factual
-21-7107/2006
statements, made and remade by Foster, were false written and verbal statements made
by Jacklin Hardeman and Gina Willemsen. His liability is joint and several.
68. Defendant Foster has also slandered Emmett, both individually and as a
vice-principal and/or employee of ABOR, by directing, encouraging, acquiescing in,
conspiring in and/or ratifying each and every reckless and/or intentional, willful,
malicious and verbal publication or republication of false, defamatory, and injurious facts
about Emmett, to each and every third party, committed by those under his direction and
control, particularly Hardeman and Willemsen. His liability is joint and several.
69. Emmett asserts that every single such verbal publication or republication is
a separate act of slander. Because these acts, if not based on substantial truth, are
intentional torts, Foster has no claim to privilege or justification. Emmett intends to seek
damages for each act, known and to be known, through the course of intensive discovery.
70. Each and every such verbal publication or republication, on Foster’s part, is
common law slander per se, in that it falsely imputes violent, dangerous, criminal
conduct to Emmett, and/or in that it has done injury to Emmett’s business reputation.
71. | Hardeman’s and Willemsen’s written statements are the only evidence that
Foster has been able to produce to meet his burden under the affirmative defense of
substantial truth. As a witness, who is also a party with an interest in the separate lawsuit
filed against her, Emmett v. Hardeman, Hardeman’s affidavit testimony is subject to
controversion. Emmett has already substantially controverted it, through the recitation of
evidence produced by the Defendants in Emmett v. ABOR. Also, the statement must be
credible, which it is not. As a witness, who is also a party with an interest in the separate
lawsuit filed against her, Emmett v. Willemsen, Willemsen’s affidavit testimony is subject
-22-7107/2008 -
to controversion. Emmett has already substantially controverted it, through the recitation
of evidence produced by the Defendants in Emmett v. ABOR. Additionally, Willemsen’s
affidavit is flawed, the jurat having been added, by Harris, approximately five days after
the execution of the written statement. Thus, Emmett contends that Willemsen can offer
no evidence to meet her burden, under the affirmative defense of substantial truth, since
her written statement is not an affidavit. Thus, Foster cannot meet his burden under the
affirmative defense of substantial truth.
72. Emmett is relying on the theory of strict liability in tort, such that no
showing that Foster knew his, or others’, statements were false is required.
B. STURGELL
73. The allegations of Paragraphs 1 through 72 are incorporated by reference as
if set forth fully in this Paragraph.
74. Defendant Sturgell has slandered Emmett, both individually and as an
agent and/or vice-principal of ABOR, by directing, encouraging, acquiescing in,
conspiring in and/or ratifying Foster’s conduct, in the aforementioned reckless and/or
intentional, willful, malicious, false, defamatory, injurious phone communication of
January 31, 2005, to Wes Walters, about Emmett. The sources of the factual statements,
made by Sturgell through Foster, were false written and verbal statements made by
Jacklin Hardeman and Gina Willemsen. Sturgell’s liability is joint and several.
75. Defendant Sturgell has also slandered Emmett, both individually and as
an agent and/or vice-principal of ABOR, by directing, encouraging, acquiescing in,
conspiring in and/or ratifying each and every reckless and/or intentional, willful,
malicious and verbal publication or republication of false, defamatory, and injurious facts
-23-TOTT2006
about Emmett, to each and every third party, committed by those under his direction and
control. His liability is joint and several.
76. Emmett asserts that every single such verbal publication or republication
is a separate act of slander. Because these acts, if not based on substantial truth, are
intentional torts, Sturgell has no claim to privilege or justification. Emmett intends to
seek damages for each act, known and to be known, through the course of intensive
discovery.
71. Each and every such verbal publication or republication, on Sturgell’s
part, is common law slander per se, in that it falsely imputes violent, dangerous, criminal
conduct to Emmett, and/or in that it has done injury to Emmett’s business reputation.
78. | Hardeman’s and Willemsen’s written statements are the only evidence that
Sturgell has been able to produce to meet his burden under the affirmative defense of
substantial truth. As a witness, who is also a party with an interest in the separate lawsuit
filed against her, Emmett v. Hardeman, Hardeman’s affidavit testimony is subject to
controversion. Emmett has already substantially controverted it, through the recitation of
evidence produced by the Defendants in Emmett v. ABOR. Also, the statement must be
credible, which it is not. As a witness, who is also a party with an interest in the separate
lawsuit filed against her, Emmett v. Willemsen, Willemsen’s affidavit testimony is subject
to controversion. Emmett has already substantially controverted it, through the recitation
of evidence produced by the Defendants in Emmett v. ABOR. Additionally, Willemsen’s
affidavit is flawed, the jurat having been added, by Harris, approximately five days after
the execution of the written statement. Thus Emmett contends that Willemsen can offer
no evidence to meet her burden, under the affirmative defense of substantial truth, since
-24-7107/2008
her written statement is not an affidavit. Thus, Sturgell cannot meet his burden under the
affirmative defense of substantial truth.
79. Emmett is relying on the theory of strict liability in tort, such that no
showing that Sturgell knew his, or others’, statements were false is required.
C. HARRIS
80. The allegations of Paragraphs 1 through 79 are incorporated by reference
as if set forth fully in this Paragraph.
81. Defendant Harris has slandered Emmett, both individually and as a
supervising employee of ABOR, by encouraging, acquiescing in, conspiring in, and/or
assisting in Foster’s conduct, in the aforementioned reckless and/or intentional, willful,
malicious, false, defamatory, injurious phone communication of January 31, 2005, to
Wes Walters, about Emmett. The sources of the factual statements, made by Harris
through Foster, were false written and verbal statements made by Jacklin Hardeman and
Gina Willemsen. Her liability is joint and several.
82. Defendant Harris has also slandered Emmett, both individually and as an
supervising employee of ABOR, by recklessly and/or intentionally, willfully and
maliciously communicating to David M. Foster, Brett Boydston, Michael Autry, Beth
Gatlin, Amanda Herring, Andrew Knieberg, Carrie Stallones, Kimbra Froehlich, Rebecca
Partida, Rita Brousee, Roxane Campbell, Stanley Martin, Steve James, Sylvia Medrano,
Tamara Warner, Anthony Petry, Merle Long, Roger Sturgell, Joseph R. Knight, Allison
Bowers, other unknown staff and directors of the Austin Board of Realtors, other
unknown staff, associates and partners of Baker and Botts, LLP., and perhaps other
additional persons, by the verbal publication or republication, of facts about Emmett that
-25-were false, that any reasonable person would consider defamatory, and that were intended
to injure, have injured, and will continue to injure, Emmett. The sources of the factual
statements, made and remade by Harris, were false written and verbal statements made
by Jacklin Hardeman and Gina Willemsen. Her liability is joint and several.
83. Defendant Harris has also slandered Emmett, both individually and as a
supervising employee of ABOR, by verbally encouraging, acquiescing in, conspiring in,
and/or assisting in Hardeman’s and Willemsen’s conduct, in the creation and notarization
of the false, written statements that became the basis for the aforementioned reckless
and/or intentional, willful, malicious, false, defamatory, injurious phone communication,
about Emmett, to Walters, made through Foster. Her liability is joint and several.
84. Emmett asserts that every single such verbal publication or republication,
on Harris’s part, is a separate act of slander. Because these acts, if not based on
substantial truth, are intentional torts, Harris has no claim to privilege or justification.
Emmett intends to seek damages for each act, known and to be known, through the
course of intensive discovery.
85. Each and every such verbal publication or republication, on Harris’s part,
is common jaw slander per_se, in that it falsely imputes violent, dangerous, criminal
conduct to Emmett, and/or in that it has done injury to Emmett’s business reputation.
86. Hardeman’s and Willemsen’s written statements are the only evidence
that Harris has been able to produce to meet her burden under the affirmative defense of
substantial truth. As a witness, who is also a party with an interest in the separate lawsuit
filed against her, Emmett v. Hardeman, Hardeman’s affidavit testimony is subject to
controversion. Emmett has already substantially controverted it, through the recitation of
-26-T07/2008
evidence produced by the Defendants in Emmett v. ABOR. Also, the statement must be
credible, which it is not. As a witness, who is also a party with an interest in the separate
lawsuit filed against her, Emmett v. Willemsen, Willemsen’s affidavit testimony is subject
to controversion. Emmett has already substantially controverted it, through the recitation
of evidence produced by the Defendants in Emmett v. ABOR. Additionally, Willemsen’s
affidavit is flawed, the jurat having been added, by Harris, approximately five days after
the execution of the written statement. Thus, Emmett contends that Willemsen can offer
no evidence to meet her burden, under the affirmative defense of substantial truth, since
her written statement is not an affidavit. Thus, Harris cannot meet her burden under the
affirmative defense of substantial truth.
87. Emmett is relying on the theory of strict liability in tort, such that no
showing that Harris knew her, or others’, statements were false is required.
D. ABOR
88. The allegations of Paragraphs 1 through 87 are incorporated by
reference as if set forth fully in this Paragraph.
89. Defendant ABOR has slandered Emmett through the actions of its
agents, vice-principals and/or employees, and is liable under the doctrines of Agency
and/or Respondeat Superior.
90. Every claim and/or argument, urged or made against the individual
defendants above, is re-urged and/or remade here against ABOR.
-27-Vil. CLAIMS FOR STATUTORY & COMMON LAW LIBEL
A. FOSTER
91. The allegations of Paragraphs 1 through 90 are incorporated by reference
as if set forth fully in this Paragraph.
92. Defendant Foster has libeled Emmett, both individually and as a vice-
principal and/or employee of ABOR, by recklessly and/or intentionally, willfully and
maliciously publishing and republishing to Wes Walters, by letter dated February 4,
2005, facts about Emmett that were false, that any reasonable person would consider
defamatory, and that were intended to injure, have injured, and will continue to injure,
Emmett. The sources of the factual statements, made and remade by Foster, were false
written and verbal statements made by Jacklin Hardeman and Gina Willemsen. His
liability is joint and several.
93. Defendant Foster has also libeled Emmett, both individually and as a
vice-principal and/or employee of ABOR, by recklessly and/or intentionally, willfully
and maliciously communicating to Vicki Harris, Brett Boydston, Michael Autry, Beth
Gatlin, Amanda Herring, Andrew Knieberg, Carrie Stallones, Kimbra Froehlich, Rebecca
Partida, Rita Brousee, Roxane Campbell, Stanley Martin, Steve James, Sylvia Medrano,
Tamara Warner, Anthony Petry, Merle Long, Roger Sturgell, Joseph R. Knight, Allison
Bowers, other unknown staff and directors of the Austin Board of Realtors, other
unknown staff, associates and partners of Baker and Botts, LLP., and perhaps others
additional persons, by the written publication or republication, of fa
Preview
m 0 AA 000135963 7/07/2008 No. GN 600294 CHARLES H. EMMETT, JR. IN THE DISTRICT COURT VS. OF TRAVIS COUNTY, TEXAS THE AUSTIN BOARD OF REALTORS, ; DAVID M. FOSTER, ROGER STURGELL, VICKI HARRIS, AND UNNAMED STAFF 534 JUDICIAL DISTRICT . = AND DIRECTORS OF ABOR ew SSS ‘ PLAINTIFF’S FIRST AMENDED PETITION 5 ss TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES Charles H. Emmett, Jr. (Emmett), Plaintiff in the above-styled and numbered case, and files this his First Amended Petition, complaining of the Austin Board of Realtors (ABOR), David M. Foster (Foster), Roger Sturgell (Sturgell), Vicki Harris (Harris), and Various, Unnamed Staff and Directors of the Austin Board of Realtors (collectively “Staff’), and would respectfully show the Court as follows: I. DISCOVERY Discovery in this case should be conducted under Level 2 of Tex. R. Civ. I. PARTIES 2. Plaintiff Charles H. Emmett, Jr. is an individual who resides in Williamson County, Texas. 3. Defendant Austin Board of Realtors is a Texas corporation, with its principal place of business in Travis County, Texas. It may be served with citation through its President and CEO, David M. Foster, at 10900 Stonelake Blvd., Suite 100 Austin, Texas, 78759. i 54, Defendant David M. Foster is an individual, employed by the Austin Board of Realtors, a corporation with its principal place of business in Travis County, Texas, as its President and CEO. He is being sued in both his individual and corporate capacities, for wrongful conduct committed on the job. He may be served with citation at 10900 Stonelake Blvd., Suite 100 Austin, Texas, 78759. 5. Defendant Roger Sturgell is an individual, formerly acting as Chairman of the Board of Directors of the Austin Board of Realtors, a corporation with its principal place of business in Travis County, Texas. He is being sued in both his individual and corporate capacities, for wrongful conduct committed in the course of his official duties. He may be served with citation at 12710 Research Blvd., No. 120, Austin, Texas, 78759. 6. Defendant Vicki Harris is an individual, employed by the Austin Board of Realtors, a corporation with its principal place of business in Travis County, Texas. She is being sued in both her individual and corporate capacities, for wrongful conduct committed on the job. She may be served with citation at 10900 Stonelake Bivd., Suite 100 Austin, Texas, 78759. Suit against this Defendant relates back to Plaintiff's original petition, filed January 25, 2006. 7. Defendants Various, Unnamed Staff and Directors are individuals, employed by the Austin Board of Realtors, or serving on its Board of Directors, a corporation with its principal place of business in Travis County, Texas. They are individuals, referred to in correspondence from Defendant Foster, or in other internal, corporate memoranda, or who are referred to or otherwise identified in documents under the corporation’s control, or who have participated in any way in the conduct complained of below. They will bea a named and served with citation, in both their individual and corporate capacities, when their identities are revealed through the course of discovery. 8. This suit will be collectively referred to below as Emmett v. ABOR. Ill. JURISDICTION 9. The amount in controversy in this case exceeds the minimum jurisdictional limits of this Court. IV. VENUE 10. Venue is proper in Travis County, Texas, pursuant to Tex. Civ. Prac. & business residence of Defendants Foster, Sturgell, Harris, and Staff, in Travis County, Texas at the time of the events made the basis of Plaintiff's claims. V. FACTS 11. Emmett is a licensed real estate agent in the State of Texas. 12. Prior to the communications and actions made the basis of the claims in this case, Emmett entered into an agency relationship with Wes Walters Realty, Inc., and/or with Weston E. Walters, its President, “Owner,” and Qualifying Broker (collectively “Walters”), to engage in real estate brokerage. The effective date of the creation of this formal, agency relationship was September 3, 2004, the date on which the Texas Real Estate Commission (TREC) changed Emmett’s status from inactive to active under Walters’ license. The Application for Sponsorship form is bates numbered EMMETT 0001, produced by Plaintiff in Emmett v. ABOR. Rem. Code §§15.002, since Defendant ABOR had its principal place of business, also the ) 13. Walters was a member of ABOR.10712006, 14. As a condition of creating the formal agency relationship with Walters, Emmett was obliged to “join” ABOR as an associated agent/member. The effective date of said joining was on September 13, 2004. Said association included the use of ABOR’s Multiple Listing Service (MLS) and Lockbox System (LBS). The means of joining was Emmett’s signature on ABOR’s form, executed in Walters’ office. This form is bates numbered EMMETT 0002, produced by Plaintiff in Emmett v. ABOR. 15. Asa condition of maintaining his “active” status with ABOR, Emmett was compelled to take a National Association of Realtors (NAR) seminar course, administered by ABOR, in December 2004, to become familiarized with NAR’s ethical standards and requirements, the Code of Ethics. Emmett paid a separate consideration of $27.00 for this course and completed it. 16. The course stressed the importance of being careful to be “ethical,” emphasizing disciplinary procedures, and possible sanctions, that would arise in the event of violations. The course materials made it very clear that proper procedure would turn around a “due process” hearing, complete with a summons, notice of charges, presentation of evidence, opportunity to answer, and put on defensive evidence, including the right to call witnesses. 17. Emmett and Walters had a marketing plan. 18. Foundational to going to the market with this plan, Walters required that Emmett draft requests for advisory opinions from TREC and ABOR, to ensure that the plan met legal and ethical requirements, respectively. In ABOR’s case, the concern was that, without such an opinion, if ABOR disliked anything about the plan, subsequent to its implementation, it could and would convene a hearing against Walters and/or Emmett7107/2008 that could easily result in sanctions, based on NAR’s Code of Ethics. Emmett opined to Walters, at that time, that, though ethics advisory opinions from ABOR are generally acceptable, it was (is) not legal for ABOR to voice an opinion about marketing plans, particularly in the area of price and competition; but Walters insisted, leaving Emmett no choice. 19. On January 24, 2005 Emmett went to ABOR’s offices, at 10900 Stonelake Blvd., Suite 100, Austin, Texas, to present the written request for the envisioned ethics advisory opinion, signed by Emmett and Walters. There is no signature line on the request itself, so no reasonable person would think that a signature was being requested from ABOR, on the form proper. This request is bates numbered EMMETT 0004, produced by Plaintiff in Emmett v. ABOR. 20. Jacklin Hardeman (Hardeman) was the receptionist on duty in ABOR’s lobby at the time of Emmett’s arrival. Emmett has chosen to sue Hardeman separately, filed as cause of action number GN 601783, in the 53" Judicial District Court of Travis County, Texas, styled Emmett v. Hardeman (Emmett v. Hardeman), because her actions and communications, complained of in the separate suit, are individual, original and/or unique, though related to the time-frame encompassed by this suit. As each individual, in the overall fact pattern, is responsible for his/her own alleged torts, Emmett asserts his right to sue each Defendant individually, or together, as he chooses. Lone Star Salt Water Disposal Co. v. Railroad Comm’n, 800 S.W.2d 924, 930 (Tex.App.—Austin 1990, no writ). 21. Emmett had just come from TREC, where he had submitted the written request for the /egal advisory opinion, also signed by both Emmett and Walters. There isa 10172006, also no signature line on the request to TREC. This request is bates numbered EMMETT 0003, produced by Plaintiff in Emmett v. ABOR. 22. TREC’s staff attorney read the request, and understood that it requested that a written opinion be forwarded to Emmett and Walters, at Walters business address; she complimented the request as being in the exact form required by TREC’s rules. 23. Emmett simply presented the request to TREC, without incident, and left TREC’s premises. 24. TREC rendered its written opinion and sent same to Walters, as requested, about a week later. This response is bates numbered EMMETT 0005, produced by Plaintiff in Emmett v. ABOR. 25. Upon leaving TREC, Emmett went straight to ABOR, a trip of about 20 to 30 minutes. 26. At ABOR, Emmett approached Hardeman, requesting to speak to an appropriate advisor to whom he could present his and Walters’ request to ABOR, as he had just done at TREC. The approach was business-like and polite, because Emmett had no reason to think that it should be any other way. In fact, when Emmett had been to ABOR’s offices, including the Education Department, in November 2004, with his wife, he had found the experience to be very pleasant. 27. Hardeman, the receptionist, announced that ABOR does not offer advisory opinions. The Defendants, in this case, have denied that they do not give advisory | | | opinions. They have also denied that they have never given an advisory opinion. Thus, they have impliedly admitted that ABOR does give and has given such opinions.28. Emmett was stunned by Hardeman’s announcement, and told her that, in his opinion, she was not the one to say what ABOR would or would not do for its client/members. At that point she became visibly defensive, angry and “snappy,” persisting vigorously in her argument that no advisory opinion would be forthcoming, despite Emmett’s repeated requests to deal with someone else. 29. As the discussion with Hardeman tured into an argument, other ABOR personnel began to drift into the lobby to see what was happening. In a witness statement, produced by the Defendants in Emmett v. ABOR as ABOR 0161, one of Hardeman’s co-workers, Michael Autry, commented: “Nobody was yelling as I walked through, but I could tell that it was slightly intense and that Jacklin had ‘some buttons pushed.’” Apparently he has seen Hardeman angry before. This testimony controverts Hardeman’s affidavit, produced by the Defendants in Emmett v. ABOR as ABOR 0001, where she represents, under oath, that she remained completely calm and demur throughout the entire unpleasant interaction. 30. | Hardeman’s sworn testimony regarding the entire event, and her handling of it, is controverted by ABOR’s “Procedures for conducting business with members who have lost their privilege of visiting our office” (“Procedures”), produced by the Defendants in Emmett v. ABOR as ABOR 0005, which requires the following: “If the member should visit our facility, staff should refrain from confrontation. Instead, staff should notify their manager immediately. The manager will take the member to the atrium area (away from other members and closer to security) and politely remind the member how they are required to interact with ABoR. Jf the member gets hostile, security should be summonsed and will escort the member from the premises” (emphasis Emmett’s). It is highly unlikely to be true that Hardeman would deviate from the script, given the cloistered, controlling atmosphere at ABOR. And though Emmett had there-to-for -7-TOTT2006 not been banished (discussed below), his purported, excessive conduct, as alleged by Hardeman, should have triggered these procedures immediately. According the ABOR’s Employee Handbook, produced by the Defendants in Emmett v. ABOR as ABOR 0010 to 0014, for violating these procedures (“the association’s policies”) she could be disciplined, “up to and including discharge.” Hardeman did not call her managing supervisor, according to ABOR’s organizational chart, produced by the Defendants in Emmett v. ABOR as ABOR 0008, and she called no one immediately. The proper conclusion is that events did not occur as represented by Hardeman. And since the Emmett v. ABOR Defendants have relied on Hardeman’s testimony to justify their actions, complained of below, and to formulate their defense, they have a problem. 31. | Upon again demanding to speak to someone else, and apparently because the demand was made in front of witnesses, Hardeman finally called for an advisor from ABOR’s Education Department to come to the ABOR lobby. As opposed to Hardeman’s sworn testimony, Emmett requested someone with knowledge of and/or connection to an ethics advisory or review committee; it was Hardeman’s choice to call the Education Department. 32. The advisor was Gina Willemsen (Willemsen), whom Emmett has chosen to sue separately, filed as cause of action number GN 602071, in the 201" Judicial District Court of Travis County, Texas, styled Emmett v. Willemsen (Emmett v. Willemsen), because her actions and communications, complained of in the separate suit, are individual, original and/or unique, though related to the time-frame encompassed by this suit. As each individual, in the overall fact pattern, is responsible for his/her own—EEEEEEE—EEEE~ TOT TOO0S. alleged torts, Emmett asserts his right to sue each Defendant individually, or together, as he chooses (id at 930). 33. | Emmett told Hardeman, in front of the above-mentioned witnesses, that he had never been treated so rudely, in such a professional context, before. This fact is confirmed by Willemsen in her so called affidavit, produced by the Defendants in Emmett v. ABOR as ABOR 0003 (created January 25, 2005, but not notarized until January 31, 2005): “As I was trying to read the document and understand what he was talking about, he was carrying on a conversation with Jacklin Hardeman; (sic) receptionist at that time, about how rude she was to him” (emphasis Emmett’s). 34. Willemsen suggested that she and Emmett step out into the main hall of the building, outside of ABOR’s lobby, and presumably the range of hearing of the witnesses who were present. 35. Emmett reiterated the request for an advisory opinion to Willemsen, only to be told again that ABOR does not offer advisory opinions. Upon being asked whether it is true that, if the marketing plan were challenged, ABOR would conduct a hearing to determine if an ethics violation had been committed, Willemsen admitted adamantly that this is true. 36. Emmett next informed Willemsen that the request was signed by a broker/member, Wes Walters, and that it was his (Emmett’s) opinion that it was patently unfair to refuse a request for an evaluation of the ethical footing for a specific, planned course of action, while maintaining the right to review and punish ethical violations stemming from the same course of action. This seemed especially true in the light of the7107/2008 seminar course, which Emmett had been compelled to take the month before, and ABOR’s proactive stance about the subject. 37. Willemsen said that she would “pass it on,” and returned to her office, request in hand. Emmett left the premises, voluntarily and without demand. 38. The conversations between Emmett and Hardeman, and between Emmett and Willemsen, while “intense,” were controlled and orderly. At no time did anyone shout, cuss, threaten, or personally demean anyone. At no time did anyone suggest that they felt threatened, or belittled, on the basis of any slur or pejorative. Emmett was not confronted, while on ABOR’s premises, for being rude, insulting, demeaning, violent, aggressive, indecent, profane, or for any other reason. At no time did anyone seek intervention from the security guard stationed in the building’s entry hall, who was in “eye shot” of the conversation with Willemsen. Finally, at no time did any one threaten to call the police, nor were they called for any reason, particularly for Emmett’s threatening or disorderly conduct. This lack of any official action, especially on Hardeman’s and Willemsen’s parts, in the light of their allegations, is a huge mystery; it strongly controverts their testimony. And since the Emmett v. ABOR Defendants have relied on Hardeman’s and Willemsen’s testimonies to justify their actions, complained of below, and to formulate their defense, they have a problem. 39. Since Willemsen, as established in her own statement, had followed the Procedures up to the point of escorting Emmett out into the main hall, to be near to the guard, the fact that she did not “summonsed” him is proof positive that the contact was peaceable. -10-OLS 40. Walters remarked to Emmett, after hearing about the incident at ABOR’s office from Emmett, immediately after the events of January 24, 2005, that he should have “warned” Emmett about the attitude at ABOR. Walters commented that ABOR’s people “think we’re here for the them, not the other way around” (the same assertion Emmett had made at ABOR), and that they must be handled with “kid gloves.” Walters also mentioned that he had been called before the Ethics Committee “a couple of times” for violations (“They’ve had me down there a couple of times”), perhaps thinking that the most ABOR would do with the disagreement was hold some sort of hearing regarding it. He concluded by saying that “we'll have to wait and see, but probably nothing will come of it.” 41. Emmett came away from the events of January 24, 2005 expecting someone to call Walters, regarding the request. ABOR never rendered the requested advisory opinion, not even for Wes Walters, and never even acknowledged the request, as proven by the fact that they did not produce any evidence of having done so, as requested by Emmett. In fact, the Defendants admit in discovery that they cannot even locate the request in their records, and had to ask Emmett for a copy, produced in Emmett v. ABOR as EMMETT 0004. What makes it interesting is that this piece of evidence is the only thing that could have objectively corroborated or further controverted Hardeman’s and/or Willemsen’s testimonies about the events of January 24, 2005. Plaintiff deems this disappearance to be an act of spoiliation of evidence. 42. According to Hardeman’s sworn testimony, Hardeman proceeded to the manager’s office to talk to “Cindy,” who went to talk to “Gina” (presumably the -li-Defendant in Emmett v. Willemsen), beginning the pattern of defamatory publication, and republication, complained of below. 43. On January 26, 2005 Defendant David M. Foster (Foster) sent Hardeman a Memo requesting to know if anyone else had been present when “Mr. Emmett called you a ‘s...0f a b.... (sic) or were you alone with him?” Since this memo was also produced by the Defendants in the course of discovery in Emmett v. ABOR, as ABOR 0151, and the Defendants could produce no such corroborating testimony, the answer to Foster’s question must clearly be “no.” At the same time, this memo clearly demonstrates that someone had published, or republished, Hardeman’s defamatory communication to David Foster. Whoever the intermediate or final source to Foster, Hardeman was the originator of the allegations. And though Hardeman was the originator of the defamation against Emmett, it seems likely that the publication went up, and over and up, through the hierarchy, which, according the Hardeman’s affidavit, included “Gina.” Regardless of the route of transmission, it is completely obvious that the Emmett v. ABOR Defendants believed and acted upon these wrongful allegations. 44. The Defendants’ Privilege Log, produced in Emmett v. ABOR without a bates number, includes an entry for January 31, 2005 wherein Defendant Vicki Harris (Harris) solicited Hardeman’s and Willemsen’s written statements, on behalf of Foster. 45. These written statements are admitted by Defendants, and shown by documents produced by the Defendants, to have been created before January 31, 2005. Thus, they were prepared not in anticipation of litigation, as falsely claimed by Foster, but rather as a part of, and in anticipation of, committing the conduct and communications complained of below. -12-46. Harris also acted as notary public, in the creation of Hardeman’s and Willemsen’s so called affidavits, thus conspiring in, encouraging, and facilitating their conduct and communications complained of below. 47. Hardeman’s affidavit, finally dated January 31, 2005, created at Foster’s request, solicited by Harris, and asserted by Foster as part of the basis for the publications and conduct complained of below, states the following (Emmett’s controverting comments are in parenthesis): a) Emmett came into ABOR’s offices, on January 24, 2005, “very upset;” she said she could tell because of Emmett’s body language, and the tone of his voice, “very loud and angry;” “Everything was tried to assist Mr. Emmett but it was clear that no type of assistance would please him since he was angry upon arrival to ABoR...” Emmett—{The above quoted phrases, though normally innocuous, are common law and statutory libel per se, in this context, acting as attacks on Emmett’s business and personal character and reputation. Additionally, this testimony is odd and absurd, given the nature of Emmett’s quest at ABOR that day, and the previous courses of dealing at both TREC and ABOR, which were very routine and peaceable. Also, she did not follow the prescribed procedure, if Emmett had been as angry as she says, impugning her testimony; not cogent, not credible.) b) Emmett said, “I have a legal document that need to be signed in a very hostile voice (sic);” Emmett—(Again, citing Emmett for hostility, in this context, is common law and statutory libel _per se, acting as an attack on Emmett’s business and personal character and reputation. Also, Hardeman obviously did not read the document [as the attorney at TREC had done], a request for an ethics opinion, not a signature. And “hostile” about what? Hardeman does not testify that she followed any particular, reasonable procedure, including the one prescribed in the “Procedures,” for dealing with this situation.) -13-c) Hardeman practically begged Emmett, three times, to tell her what department he wanted her to call to help him; Emmett—{This testimony is also not cogent or cedible: the receptionist needed the client to tell her whom to call to solve his problem? What about “immediately” calling her manager?) d) “I ask him again, sir, what department do (sic) your form need to go too (sic) and then he said, don’t start with me and that bureaucratic bullshit you just get me someone right now, so then he replied I need Education;” Emmett—(First bureaucracy is “bullshit,” then Emmett, the client, mystically, abruptly thinks to request “Education”? But more to the point, asserting that Emmett cussed in a public and professional environment, especially in the light of the accusation of hostility, is common Jaw and Statutory libel _per_se, acting as an attack on Emmett’s business and personal character and reputation.) e) “Now at this time it left Mr. Emmett and myself in the front together, he said again don’t give me that bureaucratic bullshit you son of a bitch;” Emmett—(Regarding the cussing, ditto the rejoinder made in “d.” Additionally, Hardeman seems to imply, in the quote above, that she and Emmett were left alone together, at the point of his worst, purported cussing. This testimony is dubious, since no one else heard this cussing, as verified above and below. But if Emmett were so hostile and profane as she testifies, why did Hardeman allow herself to be alone with him, against policy? And if Emmett was finally getting what he wanted, someone other than Hardeman to talk to, why the sudden, additional attack? [Normal people do not get angrier when they are getting what they want.] And most men do not call a woman a “son of a bitch,” even if they do want to cuss one out, which Emmett did not—it’s stupid and meaningless, Again, Hardeman is not cogent or credible.) f) “I ask (sic) Mr. Emmett to please have a seat in order to get some distance between the both of us since he was so hostile and someone will be up shortly, he then backed away from the desk after he heard the front door open...;” -14-10712006, Emmett—(Hardeman is insinuating criminally assaultive conduct, on Emmett’s part—common law libel and slander per se.) g) “He then told Gina that I was rude too (sic) him and I replied in a calm voice that I was not rude Mr. Emmett you were yelling at me;” Emmett—(No other witness corroborates this “yelling.” In fact, Michael Autry testifies that “nobody was yelling,” and Brett Boydston states, “I was standing by the front desk towards the very end of the conversation...J missed the yelling [Emmett’s emphasis on Boydston]..../ didn’t hear any threats, inappropriate language, etc...” These two witnesses fully contradict and controvert Hardeman’s testimony [see ABOR 0161], and it is not Willemsen’s testimony that Emmett was yelling or cussing [see ABOR 0003]. But more to the point, asserting that Emmett was yelling in a public and professional environment, especially in the light of the accusations of hostility and cussing, is common law and statutory libel _per_se, acting as an attack on Emmett’s business and personal character and reputation.) 48. Hardeman’s statement is not cogent, clear or credible, stating mostly opinion and not facts. 49. Hardeman’s statement fails to conform to the standards of a proper affidavit, and is not admissible. 50. For her part, Willemsen appears to go out of her way, in her statement turned “affidavit,” solicited by Harris and asserted by Foster as part of the basis for the publications and conduct complained of below, to find something negative to say about Emmett (Emmett’s controversions are in parenthesis): a) “He said in a rather ugly tone, ‘You work for me, not the other way around.”” Emmett—(“Rather” is not a fact, but an opinion, and inappropriate for an affidavit. The quote from Emmett is the absolute truth, and needs no defense; Emmett freely admits saying it. “Ugly” is a nondescript word, and a relative concept, adding nothing to Willemsen’s affirmative defense of substantial truth, while it is statutory libel per se, in this context, acting as an attack on Emmett’s personal character and reputation.) -15-TO1T2006 b) “His tone became louder and he referred to the Code of Ethics and said that it was clear that we (Board) didn’t care if members were ethical or not.” Emmett—{As above, “louder” than what?—telative, nondescript, adding nothing to Willemsen’s defense. “(He) said that it was clear that we (Board) didn’t care if members were ethical or not” is common law libel per se, as a direct attack on Emmett’s business character and reputation, as well as statutory libel per se, as another direct attack on Emmett’s personal character and reputation. It is also a very dubious allegation, given the overall factual context, and is not cogent or credible.) c) “Mr. Emmett displayed unprofessional as well as very abrasive behavior and looking back I can honestly say that I was feeling a bit apprehensive talking to him and felt strongly that we hadn’t heard the last of him.” Emmett—(“Unprofessional behavior” is again a direct attack on Emmett’s business character and reputation, common law libel per se. “Very abrasive behavior” is a direct attack on Emmett’s personal character and reputation, statutory libel per_se. “I was feeling a bit apprehensive talking to him” falsely imputes dangerous, criminal conduct on Emmett’s part, statutory libel per se. And while having made the insinuation/imputation, Willemsen also uses the qualifier “a bit.” This is an indeterminate amount, but suggests a small amount, enough to libel Emmett, while simultaneously controverting Hardeman’s testimony on the same subject [Emmett denies having done anything that should have made a reasonable person “apprehensive”]. And since, like Hardeman, Willemsen did not “summonsed” the guard, this report of purported apprehension is gratuitous, self-serving and useless for purposes of meeting her burden, under the affirmative defense of substantial truth. “We hadn’t heard the last of him” indicates that “we” intended to hear the last of him, a judicial admission of her intent to tortiously interfere in Emmett’s contract with Walters and ABOR, as discussed below.) opinion and not facts. 52. Willemsen’s statement fails to conform to the standards of a proper 31. Willemsen’s statement is not cogent, clear or credible, stating mostly affidavit, and is not admissible. -16-TOTT2006" 53. In a memo cover sheet to Foster, dated January 26, 2005, covering her memo to him, dated January 25, 2005 (apparently before Vicki Harris “turned” it into an affidavit), produced in Emmett v. ABOR as ABOR 0150, Willemsen writes: “Here is the document that you asked me to write up. My report of the incident may not be as strong as Jacklin’s, but this is my recollection of the events that happened to me” (emphasis Emmett’s)—clear evidence of a collaboration and/or conspiracy between Foster, Harris, Hardeman and Willemsen, and showing Willemsen (with Hardeman) to be the source of the tortious publications and actions that followed. 54. The Defendants’ Privilege Log indicates that Hardeman’s and Willemsen’s false allegations, against Emmett, were published and republished repeatedly, inside and outside of ABOR, over the course of the following days. Looking at the Log, it is clear that Foster and/or Harris were the progenitors of the activity. 55. Harris’s name appears thirteen times in this Privilege Log. She was instrumental in the communications and conduct of and between Foster and Staff, regarding the wrongs committed against Emmett, complained of below. Thus, she was an integral part of a conspiracy, and is jointly and severally liable for each and every publication or act. 56. Foster’s name appears fourteen times in the Privilege Log. Aside from his own direct wrongful conduct, complained of below, as President and CEO of ABOR he is jointly and severally liable for any and all wrongful conduct committed by his staff. 57. Sturgell’s name does not appear in the Privilege Log. But as the then acting Chairman of the Board of Directors of ABOR he was the ultimate vice-principal, and as such was responsible for, and liable for, all of the conduct of the organization on his -17-7107/2008 watch. As indicated by the Defendants inability to produce any evidence to the contrary, he did not exercise due caution and care to direct the corporation’s business, to keep it out of legal trouble, either through reckless disregard or as an intentional act. He is thus vicariously liable for all of the wrongful conduct of the whole corporation, as complained of below. 58. One week later, on January 31, 2005, Walters called Emmett to say that Foster had called him, to republish Hardeman’s and Willemsen’s defamatory communications (the Defendants admit, in Emmett v. ABOR, that Foster’s call was made on January 31, 2005). Walters began by saying, “Well, it’s worse than you said,” showing that he had come to doubt Emmett’s word. He continued, saying that Foster claimed that Emmett had “thrown a fit” at ABOR’s office, and had called one of the female employees “a bitch” (not a “son of a bitch” as Hardeman contends). Walters further informed Emmett that Foster claimed to have a videotape of “the whole thing,” (which these Defendants admit they cannot find, “after a [another] diligent search,” and the spoiliation of more evidence) as well as “affidavits” from two employees swearing to the facts (the Hardeman and Willemsen “affidavits,” referred to above). According to Walters, Foster further informed him that Emmett was no longer welcome on ABOR’s premises, because of his (Emmett’s) threatening, rude conduct. 59. Emmett denied the allegations, saying “It didn’t happen, Wes,” and informing Walters that he wanted to view the affidavits and videotape, suggesting that the latter must have been produced by a machine with a very good audio capability, since it was not readily visible, and yet could record him (Emmett) calling someone a bad name. Emmett also said that he expected to be given a “due process” hearing by ABOR, the -18-TOT/2006 proper procedure under the NAR Code of Ethics. Emmett also asked Walters why it had taken Foster a week to act, if the allegations were true, to which Walters answered that he did not know. Emmett’s defense to Walters must have placed some doubt in Walters’ mind, since he arranged a meeting with Foster to view the evidence, on February 9, 2005, after Foster returned from an out-of-town trip. 60. Subsequently, however, Walters decided that he was not interested in “going down there” with or without Emmett, a condition that Foster had put in place regarding the February 9" meeting at ABOR’s offices. Walters also said that if Foster said they have the evidence that they claim, that was “good enough for him” (Walters). Walters further opined that Emmett was “finished down there” (at ABOR), and that he (Walters) could not have an agent, who was not allowed to go to ABOR’s offices, associated with him. Walters continued that if he maintained his relationship with Emmett, and that if he sent anyone “down there,” that they (ABOR’s staff) would be wondering if this was “the Frankenstein,” and that he could not have his reputation and business relationship with “the Board” thus impinged. When Emmett reminded Walters that he had said that a viewing was “fair enough,” Walters merely replied, “The decision is made.” Walters concluded by informing Emmett that he was sending back the latter’s license to TREC, ending their agency relationship. 61. Foster next sent Walters a letter, dated February 4, 2005, produced and verified in the course of discovery in Emmett v. ABOR as ABOR 0156, following-up on his previous phone conversation with the latter, and again republishing Hardeman’s and Willemsen’s defamatory communications. In this letter Foster repeated his charges that Emmett had been “rude” in his behavior, “coarse” in his language, and insulting to a -19-RR female employee. In commenting upon his prohibition against Emmett’s physical presence at ABOR’s offices, he also opined that he had “no choice but to protect the safety and welfare” of his employees, implying that Emmett is dangerous (criminal). Foster copied Emmett, and Defendant Roger Sturgell (Sturgell), in his capacity as Chairman of the Board of Directors of ABOR, on this letter. 62. The Defendants have produced no documentary evidence that this letter was placed before the Board of Directors by Sturgell, nor that Sturgell answered Foster’s letter, nor that Sturgell took any other action regarding these matters. Given the sensitivity of the issues, Sturgell’s proven, admitted silence can only be viewed as a ratification of both Foster’s acts, and through Foster of the acts of everyone else. He is thus jointly and severally liable for ali the communications and conduct complained of below. 63. Foster refused Emmett’s repeated requests, placed by phone and e-mail, the latter produced by the Defendants in Emmett v. ABOR as ABOR 0152, 0153, 0157, 0158 and 0160, for a hearing, with an opportunity to view the evidence. Emmett thus concludes that Foster completely believed Hardeman’s and Willemsen’s allegations against Emmett, adopting them as his own, and making his communications and conduct, to Walters, Sturgell, and others, absolute republications of Hardeman’s and Willemsen’s allegations, complete with all the intended results. 64. Foster admits that he never contacted Emmett to get his side of the story, before making allegations on ABOR’s behalf, by phone and letter to Walters, nor before engaging in all the other actions and conduct complained of below. -20-7107/2008 VI. CLAIMS FOR SLANDER A. FOSTER 65. The allegations of Paragraphs 1 through 64 are incorporated by reference as if set forth fully in this Paragraph. 66. Defendant Foster has slandered Emmett, both individually and as a vice- principal and/or employee of ABOR, by recklessly and/or intentionally, willfully and maliciously publishing and republishing to Wes Walters, on the phone, on January 31, 2005, facts about Emmett that were false, that any reasonable person would consider defamatory, and that were intended to injure, have injured, and will continue to injure, Emmett. The sources of the factual statements, made and remade by Foster, were false written and verbal statements made by Jacklin Hardeman and Gina Willemsen. His liability is joint and several. 67. Defendant Foster has also slandered Emmett, both individually and as a vice-principal and/or employee of ABOR, by recklessly and/or intentionally, willfully and maliciously communicating to Vicki Harris, Brett Boydston, Michael Autry, Beth Gatlin, Amanda Herring, Andrew Knieberg, Carrie Stallones, Kimbra Froehlich, Rebecca Partida, Rita Brousee, Roxane Campbell, Stanley Martin, Steve James, Sylvia Medrano, Tamara Warner, Anthony Petry, Merle Long, Roger Sturgell, Joseph R. Knight, Allison Bowers, other unknown staff and directors of the Austin Board of Realtors, other unknown staff, associates and partners of Baker and Botts, LLP., and perhaps other additional persons, by the verbal publication or republication, of facts about Emmett that were false, that any reasonable person would consider defamatory, and that were intended to injure, have injured, and will continue to injure, Emmett. The sources of the factual -21-7107/2006 statements, made and remade by Foster, were false written and verbal statements made by Jacklin Hardeman and Gina Willemsen. His liability is joint and several. 68. Defendant Foster has also slandered Emmett, both individually and as a vice-principal and/or employee of ABOR, by directing, encouraging, acquiescing in, conspiring in and/or ratifying each and every reckless and/or intentional, willful, malicious and verbal publication or republication of false, defamatory, and injurious facts about Emmett, to each and every third party, committed by those under his direction and control, particularly Hardeman and Willemsen. His liability is joint and several. 69. Emmett asserts that every single such verbal publication or republication is a separate act of slander. Because these acts, if not based on substantial truth, are intentional torts, Foster has no claim to privilege or justification. Emmett intends to seek damages for each act, known and to be known, through the course of intensive discovery. 70. Each and every such verbal publication or republication, on Foster’s part, is common law slander per se, in that it falsely imputes violent, dangerous, criminal conduct to Emmett, and/or in that it has done injury to Emmett’s business reputation. 71. | Hardeman’s and Willemsen’s written statements are the only evidence that Foster has been able to produce to meet his burden under the affirmative defense of substantial truth. As a witness, who is also a party with an interest in the separate lawsuit filed against her, Emmett v. Hardeman, Hardeman’s affidavit testimony is subject to controversion. Emmett has already substantially controverted it, through the recitation of evidence produced by the Defendants in Emmett v. ABOR. Also, the statement must be credible, which it is not. As a witness, who is also a party with an interest in the separate lawsuit filed against her, Emmett v. Willemsen, Willemsen’s affidavit testimony is subject -22-7107/2008 - to controversion. Emmett has already substantially controverted it, through the recitation of evidence produced by the Defendants in Emmett v. ABOR. Additionally, Willemsen’s affidavit is flawed, the jurat having been added, by Harris, approximately five days after the execution of the written statement. Thus, Emmett contends that Willemsen can offer no evidence to meet her burden, under the affirmative defense of substantial truth, since her written statement is not an affidavit. Thus, Foster cannot meet his burden under the affirmative defense of substantial truth. 72. Emmett is relying on the theory of strict liability in tort, such that no showing that Foster knew his, or others’, statements were false is required. B. STURGELL 73. The allegations of Paragraphs 1 through 72 are incorporated by reference as if set forth fully in this Paragraph. 74. Defendant Sturgell has slandered Emmett, both individually and as an agent and/or vice-principal of ABOR, by directing, encouraging, acquiescing in, conspiring in and/or ratifying Foster’s conduct, in the aforementioned reckless and/or intentional, willful, malicious, false, defamatory, injurious phone communication of January 31, 2005, to Wes Walters, about Emmett. The sources of the factual statements, made by Sturgell through Foster, were false written and verbal statements made by Jacklin Hardeman and Gina Willemsen. Sturgell’s liability is joint and several. 75. Defendant Sturgell has also slandered Emmett, both individually and as an agent and/or vice-principal of ABOR, by directing, encouraging, acquiescing in, conspiring in and/or ratifying each and every reckless and/or intentional, willful, malicious and verbal publication or republication of false, defamatory, and injurious facts -23-TOTT2006 about Emmett, to each and every third party, committed by those under his direction and control. His liability is joint and several. 76. Emmett asserts that every single such verbal publication or republication is a separate act of slander. Because these acts, if not based on substantial truth, are intentional torts, Sturgell has no claim to privilege or justification. Emmett intends to seek damages for each act, known and to be known, through the course of intensive discovery. 71. Each and every such verbal publication or republication, on Sturgell’s part, is common law slander per se, in that it falsely imputes violent, dangerous, criminal conduct to Emmett, and/or in that it has done injury to Emmett’s business reputation. 78. | Hardeman’s and Willemsen’s written statements are the only evidence that Sturgell has been able to produce to meet his burden under the affirmative defense of substantial truth. As a witness, who is also a party with an interest in the separate lawsuit filed against her, Emmett v. Hardeman, Hardeman’s affidavit testimony is subject to controversion. Emmett has already substantially controverted it, through the recitation of evidence produced by the Defendants in Emmett v. ABOR. Also, the statement must be credible, which it is not. As a witness, who is also a party with an interest in the separate lawsuit filed against her, Emmett v. Willemsen, Willemsen’s affidavit testimony is subject to controversion. Emmett has already substantially controverted it, through the recitation of evidence produced by the Defendants in Emmett v. ABOR. Additionally, Willemsen’s affidavit is flawed, the jurat having been added, by Harris, approximately five days after the execution of the written statement. Thus Emmett contends that Willemsen can offer no evidence to meet her burden, under the affirmative defense of substantial truth, since -24-7107/2008 her written statement is not an affidavit. Thus, Sturgell cannot meet his burden under the affirmative defense of substantial truth. 79. Emmett is relying on the theory of strict liability in tort, such that no showing that Sturgell knew his, or others’, statements were false is required. C. HARRIS 80. The allegations of Paragraphs 1 through 79 are incorporated by reference as if set forth fully in this Paragraph. 81. Defendant Harris has slandered Emmett, both individually and as a supervising employee of ABOR, by encouraging, acquiescing in, conspiring in, and/or assisting in Foster’s conduct, in the aforementioned reckless and/or intentional, willful, malicious, false, defamatory, injurious phone communication of January 31, 2005, to Wes Walters, about Emmett. The sources of the factual statements, made by Harris through Foster, were false written and verbal statements made by Jacklin Hardeman and Gina Willemsen. Her liability is joint and several. 82. Defendant Harris has also slandered Emmett, both individually and as an supervising employee of ABOR, by recklessly and/or intentionally, willfully and maliciously communicating to David M. Foster, Brett Boydston, Michael Autry, Beth Gatlin, Amanda Herring, Andrew Knieberg, Carrie Stallones, Kimbra Froehlich, Rebecca Partida, Rita Brousee, Roxane Campbell, Stanley Martin, Steve James, Sylvia Medrano, Tamara Warner, Anthony Petry, Merle Long, Roger Sturgell, Joseph R. Knight, Allison Bowers, other unknown staff and directors of the Austin Board of Realtors, other unknown staff, associates and partners of Baker and Botts, LLP., and perhaps other additional persons, by the verbal publication or republication, of facts about Emmett that -25-were false, that any reasonable person would consider defamatory, and that were intended to injure, have injured, and will continue to injure, Emmett. The sources of the factual statements, made and remade by Harris, were false written and verbal statements made by Jacklin Hardeman and Gina Willemsen. Her liability is joint and several. 83. Defendant Harris has also slandered Emmett, both individually and as a supervising employee of ABOR, by verbally encouraging, acquiescing in, conspiring in, and/or assisting in Hardeman’s and Willemsen’s conduct, in the creation and notarization of the false, written statements that became the basis for the aforementioned reckless and/or intentional, willful, malicious, false, defamatory, injurious phone communication, about Emmett, to Walters, made through Foster. Her liability is joint and several. 84. Emmett asserts that every single such verbal publication or republication, on Harris’s part, is a separate act of slander. Because these acts, if not based on substantial truth, are intentional torts, Harris has no claim to privilege or justification. Emmett intends to seek damages for each act, known and to be known, through the course of intensive discovery. 85. Each and every such verbal publication or republication, on Harris’s part, is common jaw slander per_se, in that it falsely imputes violent, dangerous, criminal conduct to Emmett, and/or in that it has done injury to Emmett’s business reputation. 86. Hardeman’s and Willemsen’s written statements are the only evidence that Harris has been able to produce to meet her burden under the affirmative defense of substantial truth. As a witness, who is also a party with an interest in the separate lawsuit filed against her, Emmett v. Hardeman, Hardeman’s affidavit testimony is subject to controversion. Emmett has already substantially controverted it, through the recitation of -26-T07/2008 evidence produced by the Defendants in Emmett v. ABOR. Also, the statement must be credible, which it is not. As a witness, who is also a party with an interest in the separate lawsuit filed against her, Emmett v. Willemsen, Willemsen’s affidavit testimony is subject to controversion. Emmett has already substantially controverted it, through the recitation of evidence produced by the Defendants in Emmett v. ABOR. Additionally, Willemsen’s affidavit is flawed, the jurat having been added, by Harris, approximately five days after the execution of the written statement. Thus, Emmett contends that Willemsen can offer no evidence to meet her burden, under the affirmative defense of substantial truth, since her written statement is not an affidavit. Thus, Harris cannot meet her burden under the affirmative defense of substantial truth. 87. Emmett is relying on the theory of strict liability in tort, such that no showing that Harris knew her, or others’, statements were false is required. D. ABOR 88. The allegations of Paragraphs 1 through 87 are incorporated by reference as if set forth fully in this Paragraph. 89. Defendant ABOR has slandered Emmett through the actions of its agents, vice-principals and/or employees, and is liable under the doctrines of Agency and/or Respondeat Superior. 90. Every claim and/or argument, urged or made against the individual defendants above, is re-urged and/or remade here against ABOR. -27-Vil. CLAIMS FOR STATUTORY & COMMON LAW LIBEL A. FOSTER 91. The allegations of Paragraphs 1 through 90 are incorporated by reference as if set forth fully in this Paragraph. 92. Defendant Foster has libeled Emmett, both individually and as a vice- principal and/or employee of ABOR, by recklessly and/or intentionally, willfully and maliciously publishing and republishing to Wes Walters, by letter dated February 4, 2005, facts about Emmett that were false, that any reasonable person would consider defamatory, and that were intended to injure, have injured, and will continue to injure, Emmett. The sources of the factual statements, made and remade by Foster, were false written and verbal statements made by Jacklin Hardeman and Gina Willemsen. His liability is joint and several. 93. Defendant Foster has also libeled Emmett, both individually and as a vice-principal and/or employee of ABOR, by recklessly and/or intentionally, willfully and maliciously communicating to Vicki Harris, Brett Boydston, Michael Autry, Beth Gatlin, Amanda Herring, Andrew Knieberg, Carrie Stallones, Kimbra Froehlich, Rebecca Partida, Rita Brousee, Roxane Campbell, Stanley Martin, Steve James, Sylvia Medrano, Tamara Warner, Anthony Petry, Merle Long, Roger Sturgell, Joseph R. Knight, Allison Bowers, other unknown staff and directors of the Austin Board of Realtors, other unknown staff, associates and partners of Baker and Botts, LLP., and perhaps others additional persons, by the written publication or republication, of fa