Preview
000127628
6/23/08
No. 602071
CHARLES H. EMMETT, JR. ) IN THE DISTRICT COURT
) ~
VS. ) OF TRAVIS COUNTY, TEXAS=
) m™! OTT
GINA WILLEMSEN AND THE ) 201" JUDICIAL DISTRICT. =
“AUSTIN BOARD OF REALTORS ) wg
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3
PLAINTIFF’S FIRST AMENDED PETITION CG
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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 Gina
Willemsen (Willemsen) and the Austin Board of Realtors (ABOR), and would
respectfully show the Court as follows:
I. DISCOVERY
1. Discovery in this case should be conducted under Level 2 of Tex. R. Civ.
P. 190.
i]. PARTIES
2. Plaintiff Charles H. Emmett, Jr. is an individual who resides in
Williamson County, Texas.
3. Defendant Gina Willemsen is an individual, employed by the Austin
Board of Realtors (ABOR), a corporation with its principal place of business in Travis
County, Texas. She is being sued for her conduct while on the job. She may be served
with citation at 10900 Stonelake Bivd., Suite 100, Austin, Texas, 78759.
4. 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 its6/23/08
President and CEO, David M. Foster, at 10900 Stonelake Bivd., Suite 100 Austin, Texas,
78759,
Hl. JURISDICTION
5. The amount in controversy in this case exceeds the minimum
jurisdictional limits of this Court.
TV, VENUE
6. Venue is proper in Travis County, Texas, pursuant to Tex. Civ. Prac. &
Rem. Code §§15.002, since Defendant Willemsen committed the wrongful acts,
complained of below, while on the job at the Austin Board of Realtors, a Texas
Corporation with its principal place of business in Travis County.
V. GROUNDS OF SUIT
7. Willemsen is one of the “Unnamed Staff’ complained of in Emmett’s
Original Petition against the Austin Board of Realtors (ABOR), David M. Foster (Foster),
and Roger Sturgell (Sturgell) (collectively “the ABOR Defendants”), filed as cause of
action number GN 600294, in the 353" Judicial District Court of Travis Caqunty, Texas,
styled Emmett v. ABOR, et al (Emmett v. ABOR). She was unknown to Emmett at the
time of that filing.
8. Emmett asserts the Discovery Rule exception to the normal one-year Statute
of Limitations, applicable to an action for defamation, because he only became aware of
Willemsen’s identity, in April 2006, through discovery conducted in Emmett v. ABOR.
9. In the alternative, Plaintiff Emmett asks the Court to relate this filing back to
the filing date of Emmett v. ABOR, January 25, 2006, That former date is clearly within
the period of limitations, as proven in discovery in the earlier suit.6/23/08
10. Plaintiff Emmett has chosen to sue this Defendant separately, because her
actions and communications, complained of below, are individual, original and/or unique,
though related to the time-frame encompassed by the other, earlier suit.
11. Additionally, the claims below are the only claims Emmett plans to assert
against Willemsen, whereas, along with these, there are several other claims that Emmett
plans to assert against the ABOR Defendants—the lack of equality in the claims is likely
to cause or increase confusion in a single lawsuit.
12. It is also Emmett’s contention (below) that Willemsen, who did not have an
identity of interest in Emmett’s contract with ABOR, induced and was the proximate
cause of ABOR/Foster’s breach of contract with Emmett. Thus, Emmett has a claim
against Willemsen that he does not have against the other ABOR Defendants.
13. Finally, Emmett asserts that the main actors in his various claims, presented
in different suits for convenience, for the torts of defamation and interference in contract,
are the individual defendants. ABOR is always liable for the wrongful conduct of its
agents and employees, committed in the course of their work, under the doctrines of
Agency and Respondeat Superior. Texas law allows Plaintiff to sue individual
defendants separately, and he has chosen to do so. Lone Star Salt Water Disposal Co. v.
Railroad Comm’n, 800 S.W.2d 924, 930 (Tex.App.—Austin 1990, no writ). This suit
will not add to Defendants’ costs, because each Defendant must respond individually to
the claims against it, anyway. There is no possible argument that the claims are
duplicitous, because each Defendant is individually responsible and liable for its own
acts, whether jointly, severally, directly, participatorially, or vicariously. There is little
likelihood of duplication of discovery costs, as Plaintiff has already demonstrated, in this6/23/08
petition, his inclination to use everything discovered once, everywhere that he can. And
there is no surprise or prejudice to any Defendant that would justify denying Plaintiff his
legal right to sue separately, as cited above.
VI. FACTS
14. The allegations of Paragraphs 1 through 13 are incorporated by reference as
if set forth fully in this Paragraph.
15. 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 Emment v. ABOR.
16. | Walters was a member of ABOR.
17. 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.
18. As an express condition precedent to the formation of their formal
relationship, Emmett and Walters agreed that Walters would “sponsor” Emmett’s state6/23/08
license, with a purpose of pursuing brokerage/agency relationships with buyers and
sellers of real estate, in ABOR’s five county market, by offering discounted and/or
rebated commissions to principals, under formal, exclusive agency contracts (The
Marketing Plan).
19. 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 ethics 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 Emmett
that could easily result in sanctions, based on the National Association of Realtors’
(NAR) 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.
20. 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.
21, Jacklin Hardeman (Hardeman), sued by Emmett in a separate lawsuit, filed
as cause of action number GN 6001783, in the 53 Judicial District Court of Travis6/23/08
County, Texas, styled Emmett v. Hardeman (Emmett v. Hardeman), was the receptionist
on duty in ABOR’s lobby at the time of Emmett’s arrival.
22. 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 is
also no signature line on the request to TREC. This request is bates numbered
EMMETT 0003, produced by Plaintiff in Emmett v. ABOR.
23. | 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.
24. Emmett simply presented the request to TREC, without incident, and left
TREC’s premises.
25. 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.
26. Upon leaving TREC, Emmett went straight to ABOR, a trip of about 20 to
30 minutes.
27, 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.6/23/08
28. Hardeman, the receptionist, announced that ABOR does not offer advisory
opinions. The Emmett v. ABOR Defendants 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.
29. 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.
30. 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, where she represents, under oath, that she remained completely
calm and demur throughout the entire unpleasant interaction.
31. 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 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. If the member gets6/23/08
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. According the ABOR’s Employee
Handbook, produced in Emmert v. ABOR as ABOR 0010 to 0014, for violating these
procedures (“the association’s policies”) she could be disciplined, “up to and including
discharge.”
32. Upon again demanding to speak to someone else, and apparently because
the demand was made in front of witnesses, Hardeman finally calied for an advisor from
ABOR’s Education Department to come to the ABOR lobby. As opposed to Hardeman’s
swom testimony, Emmett requested someone with knowledge of or connection to an
ethics advisory or review committee; it was Hardeman’s choice to call the Education
Department.
33. The advisor was Defendant Gina Willemsen (Willemsen).
34, 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 affidavit, produced in Emmett v. ABOR as ABOR 0003:
“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).
35. Willemsen, suggested that she and Emmett step out into the main hail of the
building, outside of ABOR’s lobby, and presumably the range of hearing of the witnesses
who were present.6/23/08
36. Emmett reiterated the request for an advisory opinion to Willemsen, only to
be told again that ABOR does not offer advisory opinions.
37. Emmett told Willemsen, that since the request was signed by a
broker/member, Wes Walters, and since ABOR could “indict” Emmett and/or Walters for
a violation of the Code of Ethics, for conduct specifically related to the request for
advice, a fact that she confirmed, it was patently unfair and unethical to refuse to give the
advisory opinion.
38. Willemsen said that she would “pass it on,” and returned to her office,
request in hand. Emmett left the premises, voluntarily and without demand.
39. It is interesting that the ABOR Defendants are unable to produce either the
original request or any copy, after a “diligent search,” as requested in Emmett v. ABOR.
It is also interesting that the ABOR Defendants never rendered the requested opinion, not
even for Wes Walters, and never even acknowledged his request. This latter fact is
deemed admitted, by Emmett, in that they did not produce any document, as requested in
discovery in Emmett v. ABOR, which rebuts this presumption. What makes it interesting
is that this piece of paper is at the heart of all the events of January 24, 2005, as well as
ail that followed. Plaintiff deems this disappearance to be an act of spoiliation of
evidence.
40. 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,6/23/08
aggressive, indecent, 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 official action, on Hardeman’s and Willemsen’s parts, in
the light of their allegations, is a huge mystery; it strongly controverts their testimony.
41. Since Willemsen, as established in her own written 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.
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
Defendant), beginning the pattern of defamatory publication, and republication,
complained of below.
43. On January 26, 2005 David Foster, ABOR’s President, sent Hardeman a
memo requesting to know if anyone else had been present when “Mr. Emmett called you
a ‘s...of 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
since 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. And though Hardeman was the originator of the
defamation against Emmett, it seems likely that the publication went up, and over and up,
-10-6/23/08
through the hierarchy, which, according the Hardeman’s written statement, included
“Gina.”
44. The Defendants’ Privilege Log, produced in Emmett v. ABOR without a
bates number, includes an entry for January 31, 2005 wherein Hardeman’s and
Willemsen’s written statements were solicited by Vicki Harris, on behalf of David Foster.
45. The Privilege Log also 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, a veritable defamation machine.
46. Willemsen appears to go out of her way, in her statement turned “affidavit,”
to find something negative to say about Emmett (Emmett’s controversions are in
parenthesis):
1) “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.)
2) “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?—relative, 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 not nondescript. This 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, since Emmett was arguing so
vigorously for an ethics opinion from the “Board.”)
3) “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.”
-1l-6/23/08
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.)
47. 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 conspiracy between Foster, Harris, Hardeman and
Willemsen, and showing Willemsen (with Hardeman) to be the source of the tortious
publications and actions that followed.
48. 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
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further informed Emmett that Foster claimed to have a videotape of “the whole thing,”
(which the Defendants in Emmett v. ABOR admit they cannot find, “after a [another]
diligent search,”) 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.
49. It is interesting that the ABOR Defendants are unable to produce the
videotape, after a “diligent search,” as requested in Emmett v. ABOR. 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 testimony about the
events of January 24, 2005. Plaintiff deems this disappearance to be an act of spoiliation
of evidence.
50. 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
proper procedure under the 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 a previously planned trip.
-13-6/23/08
51, | Emmett now has the answer to the rhetorical question he posed to Walters,
understanding that Foster and company, including Willemsen, were using the week of
January 24 to January 31, 2005, not to do a fair investigation, but to prepare to commit
the torts against him that ensued.
52. Subsequently, Walters decided that he was not interested in “going down
there” with 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, and their marketing plan (the subject of the requests for
legal and ethical advisory opinions) with it.
53. Thus, Walters stated to Emmett that Foster’s republication of Hardeman’s
and Willemsen’s allegations was the exact reason for terminating his contract with
Emmett.
54. Foster next sent Walters a letter, dated February 4, 2005, produced and
verified by the Defendants in the course of discovery in Emmett v. ABOR as ABOR
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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 “personally” insulting to a 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 Roger Sturgell, the then
Chairman of ABOR’s Board of Directors, on this letter. These insinuations and
allegations fit perfectly with Willemsen’s written statement (“affidavit”).
55. In the above-mentioned letter, Foster further writes:
“As I stated earlier, if Charles Emmett remains affiliated with your firm and meets his
other membership obligations, (then) we 7/ continue to recognize him as a member with
all other rights, privileges and access to our services” (emphasis Emmett’s).
It could not be clearer that Foster had already raised the issue of Emmett’s status, with
Walters, in the phone conversation of January 31, 2005. Foster’s visiting this subject
twice, the first time before Emmett even knew of the defamatory allegations against him,
strongly suggests and indicates an intent to interfere in Emmett’s contract with Walters.
It also confesses an intent to breach ABOR’s contract with Emmett, pending termination
of Emmett by Walters. Thus, the actions, which Emmett alleges to be defamatory and
interfering, are inextricably intertwined. it is Emmett’s allegation, below, that Willemsen
knowingly or intentionally induced Foster, and through him Walters, through her false,
defamatory publications, to follow this exact course of action.
56. Foster refused Emmett’s repeated requests, placed by phone and e-mail, the
latter as ABOR 0152, 0153, 0157, 0158 and 0160, for a hearing, with an opportunity to
-15-6/23/08
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 to Walters, Sturgell, and others, absolute republications, complete with
the intended results.
37. In an e-mail to Emmett, dated February 8, 2005, produced and verified by
the Defendants in the course of discovery in Emmett v. ABOR as ABOR 0157, Foster
claims, “We neither suspended nor terminated your access to our services.” However, he
goes on to indicate that these services were strictly contingent on a relationship between
Emmett and a broker/member, reiterating his comments to Walters, found in ABOR 0156
(mentioned in paragraph 54). ABOR/Foster, by republishing Hardeman’s and
Willemsen’s allegations against Emmett, and by taking the affirmative step of prohibiting
Emmett’s presence on ABOR’s premises, based on those allegations, made sure that
Emmett did not have such a relationship with Walters, and was not likely to get with
anyone else.
58. Sometime after January 31, 2005 ABOR did unilaterally and arbitrarily
suspend (terminate) all of its services to Emmett, including access to the MLS and LBS.
The Defendants in Emmett v. ABOR admit this fact, and through documents they have
produced, suggest that the date of said termination was February 9, 2005 (see ABOR
0006 and 0007, and the Privilege Log).
59. This termination was without notice or explanation, and followed the
communications and conduct, first on the part of Hardeman and Willemsen, and
subsequently on the part of ABOR and its other agents, particularly Foster (the subject
matter of Emmett v, ABOR), that resulted in Emmett’s loss of his agency relationship with
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Wes Walters Realty, Inc. It was this loss of agency that ABOR appears to have relied
upon in terminating its services to Emmett.
60. Thus, Hardeman’s and Willemsen’s allegations ruined Emmett’s business
reputation with his broker, which led to the loss of that contractual relationship. The loss
of the contract with Walters, resulting from Hardeman’s and Willemsen’s defamatory
publications, induced ABOR to breach its contract with Emmett.
VII. CLAIMS FOR SLANDER
A. WILLEMSEN
61. The allegations of Paragraphs | through 60 are incorporated by reference
as if set forth fully in this Paragraph.
62. Defendant Willemsen has slandered Emmett, by recklessly and/or
intentionally, willfully, and maliciously communicating to David Foster, Vicki Harris,
Jacklin Hardeman, 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 Wamer,
Anthony Petry, Merle Long, Weston E. Walters, 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.
63. 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
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intentional torts, Willemsen 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.
64. Willemsen’s publications are common law slander per se, in that they
have falsely imputed violent, dangerous, criminal conduct to Emmett, and in that they
have done injury to Emmett’s business reputation.
65. Hardeman’s and Willemsen’s “affidavits,” produced in Emmett v. ABOR,
are the only purported evidence that the Defendants, in that case, have been able to
produce to meet their burden under the affirmative defense of substantial truth.
Presumably, the same will be true of Willemsen in this case. As a witness, who is also a
party with an interest, Hardeman’s affidavit testimony is subject to controversion.
Emmett has already substantially controverted it, through the recitation of evidence
produced in Emmett v. ABOR. Also, the statement must be credible, which it is not. Asa
witness, who is also a party with an interest, Willemsen’s affidavit testimony is also
subject to controversion. Emmett has already substantially controverted it, through the
recitation of evidence produced in Emmett v. ABOR. Additionally, Willemsen’s affidavit
is flawed, the jurat having been added, by Vicki 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, Willemsen cannot meet her burden under the
affirmative defense of substantial truth.
66. Emmett is relying on the theory of strict liability in tort, such that no
showing that Willemsen knew her statements were false is required.
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B. ABOR
67. The allegations of Paragraphs | through 66 are incorporated by reference as
if set forth fully in this Paragraph.
68. 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.
69. Every claim and/or argument, urged or made against Willemsen above, is
re-urged and/or remade here against ABOR.
VIII. CLAIMS FOR STATUTORY & COMMON LAW LIBEL
A. WILLEMSEN
70. The allegations of Paragraphs 1 through 69 are incorporated by reference as
if set forth fully in this Paragraph.
71. Defendant Willemsen has libeled Emmett, by recklessly and/or
intentionally, willfully, and maliciously communicating to David Foster, Vicki Harris,
Jacklin Hardeman, 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, Weston E. Walters, 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 written 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.
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72. Emmett asserts that every single such written publication or republication is
a separate act of libel. Because these acts, if not based on substantial truth, are
intentional torts, Willemsen 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.
73. Willemsen’s publications are common law libel per se, in that they have
falsely imputed violent, dangerous, criminal conduct to Emmett, and in that they have
done injury to Emmett’s business reputation.
74. Willemsen’s publications are statutory libel per se, in violation of Tex. Civ.
Prac. & Rem. Code § 73.001, in that they have falsely impeached Emmett’s honesty, and
in that they have done injury to Emmett’s personal reputation.
75. | Hardeman’s and Willemsen’s “affidavits,” produced in Emmett v. ABOR,
are the only purported evidence that the Defendants, in that case, have been able to
produce to meet their burden under the affirmative defense of substantial truth.
Presumably, the same will be true of Willemsen in this case. As a witness, who is also a
party with an interest, Hardeman’s affidavit testimony is subject to controversion.
Emmett has already substantially controverted it, through the recitation of evidence
produced 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, Willemsen’s affidavit testimony is also
subject to controversion. Emmett has already substantially controverted it, through the
recitation of evidence produced in Emmett v. ABOR. Additionally, Willemsen’s affidavit
is flawed, the jurat having been added, by Vicki Harris, approximately five days affer the
execution of the written statement. Thus Emmett contends that Willemsen can offer no
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evidence to meet her burden, under the affirmative defense of substantial truth, since her
written statement is not an affidavit. Thus, Willemsen cannot meet her burden under the
affirmative defense of substantial truth.
76. Emmett is relying on the theory of strict liability in tort, such that no
showing that Willemsen knew her statements were false is required.
B. ABOR
77. The allegations of Paragraphs 1 through 76 are incorporated by reference as
if set forth fully in this Paragraph.
728. Defendant ABOR has libeled Emmett through the actions of its agents,
vice-principals and/or employees, and is liable under the doctrines of Agency and/or
Respondeat Superior.
79. Every claim and/or argument, urged or made against Willemsen above, is
re-urged and/or remade here against ABOR.
Ix, CLAIMS FOR TORTIOUS INTERFERENCE IN CONTRACT
A. CONTRACT WITH WALTERS
1. WILLEMSEN
80. The allegations of Paragraphs | through 79 are incorporated by reference
as if set forth fully in this Paragraph.
81. | Emmett had a valid contract with Weston E. Walters and/or Wes Walters
Realty, Inc. (collectively “Walters”), to engage in real estate agency marketing services.
This contract is more specifically described in paragraphs 15 and 18 above.
82. Defendant Willemsen has willfully and intentionally interfered in
Emmett’s contract with Walters, through the defamatory publications and republications
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described above. Because the interference was in the form of another intentional tort,
Willemsen cannot claim any privilege or justification as a defense (Prudential, 29
S.W.3d at 81).
83. Willemsen knew of Emmett’s contract with Walters, because one cannot
join ABOR, as an associate member, without being in a contractual relationship with a
broker. Willemsen admits, in her written statement of January 25, 2005, that she read the
Emmett/Walters request, referring to Walters as Emmett’s “broker,” and judicially
admitting the contract.
84. Willemsen had no identity of interest in Emmett’s contract with Walters.
85. Willemsen intentionally interfered in Emmett’s contract with Walters, by
knowingly inducing Walters to terminate his contract with Emmett. This knowing
inducement and interference were the proximate cause of Emmett’s injury. By
intentionally defaming Emmett, by verbal and written publication to Foster, and hence by
verbal and written republication, through Foster to Walters, Willemsen injured Emmett’s
business and personal reputations, falsely imputed criminal conduct to Emmett, and
impeached Emmett’s honesty until Walters terminated his contract with Emmett.
Willemsen either wanted to cause this consequence, the natural result of her act, or knew
that this consequence was substantially certain to result from her act, her intentional
defamation of Emmett. Willemsen’s defamation against Emmett, and interference in his
contract with Walters, are inextricably intertwined conduct.
86. The evidence of the effectiveness of this intent has been produced, by the
Defendants in Emmett v. ABOR as ABOR 0154 and 0155, which are Walters’ letters to
TREC and Emmett, reducing Emmett’s termination to writings.
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87. Willemsen’s interference in Emmett’s contract with Walters has caused
Emmett actual, un-liquidated damage and loss.
2. ABOR
88. The allegations of Paragraphs | through 87 are incorporated by reference as
if set forth fully in this Paragraph.
89. Defendant ABOR has tortiously interfered in Emmett’s contract with
Walters 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 Hardeman above, is
re-urged and/or remade here against ABOR.
B. CONTRACT WITH ABOR
1. WILLEMSEN
91. The allegations of Paragraphs 1 through 90 are incorporated by reference
as if set forth fully in this Paragraph.
92. Emmett had a valid contract with the Austin Board of Realtors (ABOR), for
the procurement of unique services, in support of Emmett’s real estate agency
marketing, through Wes Walters Realty, Inc. This contract is more specifically
described in paragraph 17 above.
93. Defendant Willemsen has willfully and intentionally interfered in Emmett’s
contract with ABOR, through the defamatory publications and republications described
above. Because the interference was in the form of another intentional tort, Willemsen
cannot claim any privilege or justification as a defense (Prudential, 29 §.W.3d at 81).
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94. Willemsen knew of Emmett’s contract with ABOR, referring to Walters as
Emmett’s “broker” in her written statement, judicially admitting the contract.
95. As a regular employee, Willemsen had no identity of interest in Emmett’s
contract with ABOR.
96. Willemsen intentionally interfered in Emmett’s contract with ABOR, by
knowingly inducing ABOR to terminate its contract with Emmett. This knowing
inducement and interference were the proximate cause of Emmett’s injury. By
intentionally defaming Emmett, by written and verbal publication to Foster, and hence by
written and verbal republication, through Foster to Walters, Willemsen injured Emmett’s
business and personal reputations, falsely imputed criminal conduct to Emmett, and
impeached Emmett’s honesty until Walters terminated his contract with Emmett.
Following said termination of Emmett’s contract by Walters, and relying on same, Foster,
acting for ABOR, “suspended” all of ABOR’s services to Emmett, despite his false
denial of February 8, 2005. This suspension was full and permanent, constituting a
material, anticipatory breach of contract, against Emmett, on ABOR’s part. Willemsen
either wanted to cause this consequence, the natural result of her act, or knew that this
consequence was substantially certain to result from her act, her intentional defamation
of Emmett. Willemsen’s defamation against Emmett, and interference in his contract
with ABOR, are inextricably intertwined conduct.
97. The evidence of the effectiveness of this intent has been acknowledged by
the Defendants in Emmett v. ABOR, produced as ABOR 0154 and 0155, Walters’ letters
to TREC and Emmett, which reduce Emmett’s termination to writings. That ABOR has
these letters in its file shows the key role that Walters’ termination, of Emmett, played in
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ABOR’s decision to breach its contract with Emmett. Thus, Willemsen’s defamation of
Emmett to Walters, and interference in his contract with Walters, were primogenitor in
Emmett’s loss of relationship with, and services from, ABOR, as demonstrated by
ABOR.
98. Willemsen’s interference in Emmett’s contract with ABOR has caused, and
will cause, Emmett actual, unliquidated damage and loss.
2. ABOR
99. The allegations of Paragraphs | through 98 are incorporated by reference as
if set forth fully in this Paragraph.
100. ABOR is not liable for interfering in its own contract with Emmett, except
to the degree that it specifically ratified, assisted or encouraged Willemsen’s actions.
X. ACTUAL DAMAGES
A. WILLEMSEN
101. The allegations of Paragraphs 1 through 100 are incorporated by reference
as if set forth fully in this Paragraph.
102. Defendant Willemsen is liable to Emmett for her reckless and/or
intentional, knowing, willful, false, defamatory, verbal publications and republications,
which have resulted in actual damages to Emmett, including but not limited to the
following:
1) General damages for injury to Emmett’s business character and/or
reputation, in multiple instances, as found by the trier of fact;
2) General damages for injury to Emmett for falsely imputing criminal
conduct to him, in multiple instances, as found by the trier of fact;
3) General damages for injury to Emmett’s feelings, in multiple
instances, as found by the trier of fact;
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4) General damages for injury to Emmett, by causing him mental
anguish and humiliation, in multiple instances, as found by the trier of fact.
103. Defendant Willemsen is liable to Emmett for her reckless and/or
intentional, knowing, willful, false, defamatory, written publications and republications,
which have resulted in actual damages to Emmett, including but not limited to the
following:
1) General damages for injury to Emmett’s business character and/or
reputation, in multiple instances, as found by the trier of fact;
2) General damages for injury to Emmett’s personal character and/or
reputation, in multiple instances, as found by the trier of fact:
3) General damages for injury to Emmett for falsely imputing
criminal conduct to him, in multiple instances, as found by the trier of fact;
4) General damages for injury to Emmett for falsely impeaching his
honesty, in multiple instances, as found by the trier of fact;
5) General damages for injury to Emmett’s feelings, in multiple
instances, as found by the trier of fact;
6) General damages for injury to Emmett, by causing him mental
anguish and humiliation, in multiple instances, as found by the trier of fact.
104. Defendant Willemsen is liable to Emmett for her knowing, willful, and
intentional interference in his contract with Walters, which has resulted in actual damages
to Emmett, including but not limited to the following:
1) General damages for injury to Emmett, by causing him mental
anguish and humiliation, as found by the trier of fact.
2) General damages for injury to Emmett’s business character and/or
reputation, as found by the trier of fact;
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105. Defendant Willemsen is liable to Emmett for her knowing, willful, and
intentional interference in his contract with ABOR, which has resulted in actual damages
to Emmett, including but not limited to the following:
1) General damages for injury to Emmett, by causing him mental
anguish and humiliation, as found by the trier of fact.
2) General damages for injury to Emmett’s business character and/or
reputation, as found by the trier of fact;
106. The Defendants, in Emmett v. ABOR, have attempted to assert failure to
mitigate damages as an affirmative defense, and Plaintiff Emmett expects Willemsen to
do the same here. As in the earlier case, this defense is misplaced and ineffective,
because Emmett is not asserting damages that are subject to being mitigated.
B. ABOR
107. The allegations of Paragraphs 1 through 106 are incorporated by reference
as if set forth fully in this Paragraph.
108. Defendant ABOR is vicariously liable for all the actual damages caused
by Willemsen, under the doctrines of Agency and/or Respondeat Superior.
109. The Defendants, in Emmett v. ABOR, have attempted to assert failure to
mitigate damages as an affirmative defense, and Plaintiff Emmett expects Willemsen to
do the same here. As in the earlier case, this defense is misplaced and ineffective,
because Emmett is not asserting damages that are subject to being mitigated.
XI. EXEMPLARY DAMAGES
110. The allegations of Paragraphs 1 through 109 are incorporated by
reference as if set forth fully in this Paragraph.
111. Plaintiff Emmett is an individual “claimant,” as defined in Tex. Civ. &
Rem. Code § 41.001(1), the “Damages Act,” seeking exemplary damages against
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Defendant Willemsen for her reckless and/or intentional, knowing, willful, false,
defamatory, interfering, repeated and malicious conduct, in the underlying claims, for
injuries against himself.
112. The underlying claims for slander, libel and tortious interference in
contract fall within the control of the Damages Act, as defined in Tex. Civ. & Rem.
Code § 41.002(a)(b).
113. Defendant Gina Willemsen is individually liable for her own wrongful
conduct, as described above. Her reckless and/or intentional acts, conduct and/or
communications, against Plaintiff Emmett, were and are so knowing, foreseeable,
willful, false, defamatory, interfering, malicious, repeated, damaging, egregious, and on-
going as to justify the awarding of exemplary damages to Emmett, as found by the trier
of fact.
114. Her defamatory allegations, against Emmett, have already been published
to over 20 individuals, with disastrous personal and business consequences to Emmett.
115. Her interference in two of Emmett’s contracts has had a crushing impact
on Emmett.
116. The prohibition on Emmett’s physical presence on ABOR’s premises, put
in place by David Foster at Willemsen’s behest, very likely will negatively impact on
Emmett’s prospective business opportunities, harbinging long-term impact and possible
future damages.
XII. REQUEST FOR TRIAL BY JURY
117. The allegations of Paragraphs | through 116 are incorporated by reference
as if set forth fully in this Paragraph.
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118. Pursuant to TRCP 216, Plaintiff Emmett hereby requests trial by jury of
the issues in this case.
119, Plaintiff Emmett has tendered the proper jury fee to the Clerk of the
Court.
WHEREFORE, Plaintiff requests that Willemsen and ABOR be cited to appear
and answer in this suit, and that upon final jury trial Plaintiff have judgment against
Defendant as follows:
a) that Plaintiff have and recover from Defendants for his actual damages for
multiple instances of slander, libel, and tortious interference in contract;
b) that Plaintiff have and recover from Defendant Willemsen exemplary
damages for Defendant’s individual, reckless and/or intentional, knowing, foreseeable,
willful, false, defamatory, interfering, malicious, repeated, damaging, egregious, and
ongoing conduct, in the commission of her wrongful acts against Plaintiff:
c) that Plaintiff have and recover from Defendants prejudgment and post-
judgment interest in accordance with applicable law;
d) that Plaintiff have and recover from Defendants his costs of court; and
e) that the Court provide Plaintiff with such other and further relief to which
he is justly entitled.
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Respectfully submitted,
CHARLES H. EMMETT, JR.
1104 Water Hole Trail
Cedar Park, Texas 78613
(512) 249-1687
(512) 249-1687 (Fax)
By. CAw 2,
Charles H. Emmett, Jr.
PLAINTIFF PRO SE
CERTIFICATE OF SERVICE
This certifies that a true and correct copy, of the above and foregoing Plaintiff's
First Amended Petition, has been delivered to Mr. Joseph R. Knight, Baker & Botts, LLP,
98 San Jacinto Bivd., Suite 1500, Austin, Texas 78701-4039, by U.S. Certified Mail,
Return Receipt Requested, in accordance with the Texas Rules of Civil Procedure, on this
23" day of June 2006.
Che ~~ FH
Charles H. Emmett, Jr.
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000127628 6/23/08 No. 602071 CHARLES H. EMMETT, JR. ) IN THE DISTRICT COURT ) ~ VS. ) OF TRAVIS COUNTY, TEXAS= ) m™! OTT GINA WILLEMSEN AND THE ) 201" JUDICIAL DISTRICT. = “AUSTIN BOARD OF REALTORS ) wg ot 3 PLAINTIFF’S FIRST AMENDED PETITION CG oO 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 Gina Willemsen (Willemsen) and the Austin Board of Realtors (ABOR), and would respectfully show the Court as follows: I. DISCOVERY 1. Discovery in this case should be conducted under Level 2 of Tex. R. Civ. P. 190. i]. PARTIES 2. Plaintiff Charles H. Emmett, Jr. is an individual who resides in Williamson County, Texas. 3. Defendant Gina Willemsen is an individual, employed by the Austin Board of Realtors (ABOR), a corporation with its principal place of business in Travis County, Texas. She is being sued for her conduct while on the job. She may be served with citation at 10900 Stonelake Bivd., Suite 100, Austin, Texas, 78759. 4. 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 its6/23/08 President and CEO, David M. Foster, at 10900 Stonelake Bivd., Suite 100 Austin, Texas, 78759, Hl. JURISDICTION 5. The amount in controversy in this case exceeds the minimum jurisdictional limits of this Court. TV, VENUE 6. Venue is proper in Travis County, Texas, pursuant to Tex. Civ. Prac. & Rem. Code §§15.002, since Defendant Willemsen committed the wrongful acts, complained of below, while on the job at the Austin Board of Realtors, a Texas Corporation with its principal place of business in Travis County. V. GROUNDS OF SUIT 7. Willemsen is one of the “Unnamed Staff’ complained of in Emmett’s Original Petition against the Austin Board of Realtors (ABOR), David M. Foster (Foster), and Roger Sturgell (Sturgell) (collectively “the ABOR Defendants”), filed as cause of action number GN 600294, in the 353" Judicial District Court of Travis Caqunty, Texas, styled Emmett v. ABOR, et al (Emmett v. ABOR). She was unknown to Emmett at the time of that filing. 8. Emmett asserts the Discovery Rule exception to the normal one-year Statute of Limitations, applicable to an action for defamation, because he only became aware of Willemsen’s identity, in April 2006, through discovery conducted in Emmett v. ABOR. 9. In the alternative, Plaintiff Emmett asks the Court to relate this filing back to the filing date of Emmett v. ABOR, January 25, 2006, That former date is clearly within the period of limitations, as proven in discovery in the earlier suit.6/23/08 10. Plaintiff Emmett has chosen to sue this Defendant separately, because her actions and communications, complained of below, are individual, original and/or unique, though related to the time-frame encompassed by the other, earlier suit. 11. Additionally, the claims below are the only claims Emmett plans to assert against Willemsen, whereas, along with these, there are several other claims that Emmett plans to assert against the ABOR Defendants—the lack of equality in the claims is likely to cause or increase confusion in a single lawsuit. 12. It is also Emmett’s contention (below) that Willemsen, who did not have an identity of interest in Emmett’s contract with ABOR, induced and was the proximate cause of ABOR/Foster’s breach of contract with Emmett. Thus, Emmett has a claim against Willemsen that he does not have against the other ABOR Defendants. 13. Finally, Emmett asserts that the main actors in his various claims, presented in different suits for convenience, for the torts of defamation and interference in contract, are the individual defendants. ABOR is always liable for the wrongful conduct of its agents and employees, committed in the course of their work, under the doctrines of Agency and Respondeat Superior. Texas law allows Plaintiff to sue individual defendants separately, and he has chosen to do so. Lone Star Salt Water Disposal Co. v. Railroad Comm’n, 800 S.W.2d 924, 930 (Tex.App.—Austin 1990, no writ). This suit will not add to Defendants’ costs, because each Defendant must respond individually to the claims against it, anyway. There is no possible argument that the claims are duplicitous, because each Defendant is individually responsible and liable for its own acts, whether jointly, severally, directly, participatorially, or vicariously. There is little likelihood of duplication of discovery costs, as Plaintiff has already demonstrated, in this6/23/08 petition, his inclination to use everything discovered once, everywhere that he can. And there is no surprise or prejudice to any Defendant that would justify denying Plaintiff his legal right to sue separately, as cited above. VI. FACTS 14. The allegations of Paragraphs 1 through 13 are incorporated by reference as if set forth fully in this Paragraph. 15. 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 Emment v. ABOR. 16. | Walters was a member of ABOR. 17. 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. 18. As an express condition precedent to the formation of their formal relationship, Emmett and Walters agreed that Walters would “sponsor” Emmett’s state6/23/08 license, with a purpose of pursuing brokerage/agency relationships with buyers and sellers of real estate, in ABOR’s five county market, by offering discounted and/or rebated commissions to principals, under formal, exclusive agency contracts (The Marketing Plan). 19. 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 ethics 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 Emmett that could easily result in sanctions, based on the National Association of Realtors’ (NAR) 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. 20. 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. 21, Jacklin Hardeman (Hardeman), sued by Emmett in a separate lawsuit, filed as cause of action number GN 6001783, in the 53 Judicial District Court of Travis6/23/08 County, Texas, styled Emmett v. Hardeman (Emmett v. Hardeman), was the receptionist on duty in ABOR’s lobby at the time of Emmett’s arrival. 22. 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 is also no signature line on the request to TREC. This request is bates numbered EMMETT 0003, produced by Plaintiff in Emmett v. ABOR. 23. | 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. 24. Emmett simply presented the request to TREC, without incident, and left TREC’s premises. 25. 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. 26. Upon leaving TREC, Emmett went straight to ABOR, a trip of about 20 to 30 minutes. 27, 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.6/23/08 28. Hardeman, the receptionist, announced that ABOR does not offer advisory opinions. The Emmett v. ABOR Defendants 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. 29. 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. 30. 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, where she represents, under oath, that she remained completely calm and demur throughout the entire unpleasant interaction. 31. 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 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. If the member gets6/23/08 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. According the ABOR’s Employee Handbook, produced in Emmert v. ABOR as ABOR 0010 to 0014, for violating these procedures (“the association’s policies”) she could be disciplined, “up to and including discharge.” 32. Upon again demanding to speak to someone else, and apparently because the demand was made in front of witnesses, Hardeman finally calied for an advisor from ABOR’s Education Department to come to the ABOR lobby. As opposed to Hardeman’s swom testimony, Emmett requested someone with knowledge of or connection to an ethics advisory or review committee; it was Hardeman’s choice to call the Education Department. 33. The advisor was Defendant Gina Willemsen (Willemsen). 34, 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 affidavit, produced in Emmett v. ABOR as ABOR 0003: “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). 35. Willemsen, suggested that she and Emmett step out into the main hail of the building, outside of ABOR’s lobby, and presumably the range of hearing of the witnesses who were present.6/23/08 36. Emmett reiterated the request for an advisory opinion to Willemsen, only to be told again that ABOR does not offer advisory opinions. 37. Emmett told Willemsen, that since the request was signed by a broker/member, Wes Walters, and since ABOR could “indict” Emmett and/or Walters for a violation of the Code of Ethics, for conduct specifically related to the request for advice, a fact that she confirmed, it was patently unfair and unethical to refuse to give the advisory opinion. 38. Willemsen said that she would “pass it on,” and returned to her office, request in hand. Emmett left the premises, voluntarily and without demand. 39. It is interesting that the ABOR Defendants are unable to produce either the original request or any copy, after a “diligent search,” as requested in Emmett v. ABOR. It is also interesting that the ABOR Defendants never rendered the requested opinion, not even for Wes Walters, and never even acknowledged his request. This latter fact is deemed admitted, by Emmett, in that they did not produce any document, as requested in discovery in Emmett v. ABOR, which rebuts this presumption. What makes it interesting is that this piece of paper is at the heart of all the events of January 24, 2005, as well as ail that followed. Plaintiff deems this disappearance to be an act of spoiliation of evidence. 40. 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,6/23/08 aggressive, indecent, 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 official action, on Hardeman’s and Willemsen’s parts, in the light of their allegations, is a huge mystery; it strongly controverts their testimony. 41. Since Willemsen, as established in her own written 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. 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 Defendant), beginning the pattern of defamatory publication, and republication, complained of below. 43. On January 26, 2005 David Foster, ABOR’s President, sent Hardeman a memo requesting to know if anyone else had been present when “Mr. Emmett called you a ‘s...of 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 since 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. And though Hardeman was the originator of the defamation against Emmett, it seems likely that the publication went up, and over and up, -10-6/23/08 through the hierarchy, which, according the Hardeman’s written statement, included “Gina.” 44. The Defendants’ Privilege Log, produced in Emmett v. ABOR without a bates number, includes an entry for January 31, 2005 wherein Hardeman’s and Willemsen’s written statements were solicited by Vicki Harris, on behalf of David Foster. 45. The Privilege Log also 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, a veritable defamation machine. 46. Willemsen appears to go out of her way, in her statement turned “affidavit,” to find something negative to say about Emmett (Emmett’s controversions are in parenthesis): 1) “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.) 2) “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?—relative, 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 not nondescript. This 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, since Emmett was arguing so vigorously for an ethics opinion from the “Board.”) 3) “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.” -1l-6/23/08 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.) 47. 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 conspiracy between Foster, Harris, Hardeman and Willemsen, and showing Willemsen (with Hardeman) to be the source of the tortious publications and actions that followed. 48. 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 -12-6/23/08 further informed Emmett that Foster claimed to have a videotape of “the whole thing,” (which the Defendants in Emmett v. ABOR admit they cannot find, “after a [another] diligent search,”) 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. 49. It is interesting that the ABOR Defendants are unable to produce the videotape, after a “diligent search,” as requested in Emmett v. ABOR. 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 testimony about the events of January 24, 2005. Plaintiff deems this disappearance to be an act of spoiliation of evidence. 50. 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 proper procedure under the 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 a previously planned trip. -13-6/23/08 51, | Emmett now has the answer to the rhetorical question he posed to Walters, understanding that Foster and company, including Willemsen, were using the week of January 24 to January 31, 2005, not to do a fair investigation, but to prepare to commit the torts against him that ensued. 52. Subsequently, Walters decided that he was not interested in “going down there” with 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, and their marketing plan (the subject of the requests for legal and ethical advisory opinions) with it. 53. Thus, Walters stated to Emmett that Foster’s republication of Hardeman’s and Willemsen’s allegations was the exact reason for terminating his contract with Emmett. 54. Foster next sent Walters a letter, dated February 4, 2005, produced and verified by the Defendants in the course of discovery in Emmett v. ABOR as ABOR -14-6/23/08 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 “personally” insulting to a 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 Roger Sturgell, the then Chairman of ABOR’s Board of Directors, on this letter. These insinuations and allegations fit perfectly with Willemsen’s written statement (“affidavit”). 55. In the above-mentioned letter, Foster further writes: “As I stated earlier, if Charles Emmett remains affiliated with your firm and meets his other membership obligations, (then) we 7/ continue to recognize him as a member with all other rights, privileges and access to our services” (emphasis Emmett’s). It could not be clearer that Foster had already raised the issue of Emmett’s status, with Walters, in the phone conversation of January 31, 2005. Foster’s visiting this subject twice, the first time before Emmett even knew of the defamatory allegations against him, strongly suggests and indicates an intent to interfere in Emmett’s contract with Walters. It also confesses an intent to breach ABOR’s contract with Emmett, pending termination of Emmett by Walters. Thus, the actions, which Emmett alleges to be defamatory and interfering, are inextricably intertwined. it is Emmett’s allegation, below, that Willemsen knowingly or intentionally induced Foster, and through him Walters, through her false, defamatory publications, to follow this exact course of action. 56. Foster refused Emmett’s repeated requests, placed by phone and e-mail, the latter as ABOR 0152, 0153, 0157, 0158 and 0160, for a hearing, with an opportunity to -15-6/23/08 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 to Walters, Sturgell, and others, absolute republications, complete with the intended results. 37. In an e-mail to Emmett, dated February 8, 2005, produced and verified by the Defendants in the course of discovery in Emmett v. ABOR as ABOR 0157, Foster claims, “We neither suspended nor terminated your access to our services.” However, he goes on to indicate that these services were strictly contingent on a relationship between Emmett and a broker/member, reiterating his comments to Walters, found in ABOR 0156 (mentioned in paragraph 54). ABOR/Foster, by republishing Hardeman’s and Willemsen’s allegations against Emmett, and by taking the affirmative step of prohibiting Emmett’s presence on ABOR’s premises, based on those allegations, made sure that Emmett did not have such a relationship with Walters, and was not likely to get with anyone else. 58. Sometime after January 31, 2005 ABOR did unilaterally and arbitrarily suspend (terminate) all of its services to Emmett, including access to the MLS and LBS. The Defendants in Emmett v. ABOR admit this fact, and through documents they have produced, suggest that the date of said termination was February 9, 2005 (see ABOR 0006 and 0007, and the Privilege Log). 59. This termination was without notice or explanation, and followed the communications and conduct, first on the part of Hardeman and Willemsen, and subsequently on the part of ABOR and its other agents, particularly Foster (the subject matter of Emmett v, ABOR), that resulted in Emmett’s loss of his agency relationship with -16-6/23/08 Wes Walters Realty, Inc. It was this loss of agency that ABOR appears to have relied upon in terminating its services to Emmett. 60. Thus, Hardeman’s and Willemsen’s allegations ruined Emmett’s business reputation with his broker, which led to the loss of that contractual relationship. The loss of the contract with Walters, resulting from Hardeman’s and Willemsen’s defamatory publications, induced ABOR to breach its contract with Emmett. VII. CLAIMS FOR SLANDER A. WILLEMSEN 61. The allegations of Paragraphs | through 60 are incorporated by reference as if set forth fully in this Paragraph. 62. Defendant Willemsen has slandered Emmett, by recklessly and/or intentionally, willfully, and maliciously communicating to David Foster, Vicki Harris, Jacklin Hardeman, 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 Wamer, Anthony Petry, Merle Long, Weston E. Walters, 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. 63. 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 -17-6/23/08 intentional torts, Willemsen 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. 64. Willemsen’s publications are common law slander per se, in that they have falsely imputed violent, dangerous, criminal conduct to Emmett, and in that they have done injury to Emmett’s business reputation. 65. Hardeman’s and Willemsen’s “affidavits,” produced in Emmett v. ABOR, are the only purported evidence that the Defendants, in that case, have been able to produce to meet their burden under the affirmative defense of substantial truth. Presumably, the same will be true of Willemsen in this case. As a witness, who is also a party with an interest, Hardeman’s affidavit testimony is subject to controversion. Emmett has already substantially controverted it, through the recitation of evidence produced in Emmett v. ABOR. Also, the statement must be credible, which it is not. Asa witness, who is also a party with an interest, Willemsen’s affidavit testimony is also subject to controversion. Emmett has already substantially controverted it, through the recitation of evidence produced in Emmett v. ABOR. Additionally, Willemsen’s affidavit is flawed, the jurat having been added, by Vicki 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, Willemsen cannot meet her burden under the affirmative defense of substantial truth. 66. Emmett is relying on the theory of strict liability in tort, such that no showing that Willemsen knew her statements were false is required. -18-6/23/08 B. ABOR 67. The allegations of Paragraphs | through 66 are incorporated by reference as if set forth fully in this Paragraph. 68. 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. 69. Every claim and/or argument, urged or made against Willemsen above, is re-urged and/or remade here against ABOR. VIII. CLAIMS FOR STATUTORY & COMMON LAW LIBEL A. WILLEMSEN 70. The allegations of Paragraphs 1 through 69 are incorporated by reference as if set forth fully in this Paragraph. 71. Defendant Willemsen has libeled Emmett, by recklessly and/or intentionally, willfully, and maliciously communicating to David Foster, Vicki Harris, Jacklin Hardeman, 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, Weston E. Walters, 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 written 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. -19-6/23/08 72. Emmett asserts that every single such written publication or republication is a separate act of libel. Because these acts, if not based on substantial truth, are intentional torts, Willemsen 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. 73. Willemsen’s publications are common law libel per se, in that they have falsely imputed violent, dangerous, criminal conduct to Emmett, and in that they have done injury to Emmett’s business reputation. 74. Willemsen’s publications are statutory libel per se, in violation of Tex. Civ. Prac. & Rem. Code § 73.001, in that they have falsely impeached Emmett’s honesty, and in that they have done injury to Emmett’s personal reputation. 75. | Hardeman’s and Willemsen’s “affidavits,” produced in Emmett v. ABOR, are the only purported evidence that the Defendants, in that case, have been able to produce to meet their burden under the affirmative defense of substantial truth. Presumably, the same will be true of Willemsen in this case. As a witness, who is also a party with an interest, Hardeman’s affidavit testimony is subject to controversion. Emmett has already substantially controverted it, through the recitation of evidence produced 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, Willemsen’s affidavit testimony is also subject to controversion. Emmett has already substantially controverted it, through the recitation of evidence produced in Emmett v. ABOR. Additionally, Willemsen’s affidavit is flawed, the jurat having been added, by Vicki Harris, approximately five days affer the execution of the written statement. Thus Emmett contends that Willemsen can offer no -20-6/23/08 evidence to meet her burden, under the affirmative defense of substantial truth, since her written statement is not an affidavit. Thus, Willemsen cannot meet her burden under the affirmative defense of substantial truth. 76. Emmett is relying on the theory of strict liability in tort, such that no showing that Willemsen knew her statements were false is required. B. ABOR 77. The allegations of Paragraphs 1 through 76 are incorporated by reference as if set forth fully in this Paragraph. 728. Defendant ABOR has libeled Emmett through the actions of its agents, vice-principals and/or employees, and is liable under the doctrines of Agency and/or Respondeat Superior. 79. Every claim and/or argument, urged or made against Willemsen above, is re-urged and/or remade here against ABOR. Ix, CLAIMS FOR TORTIOUS INTERFERENCE IN CONTRACT A. CONTRACT WITH WALTERS 1. WILLEMSEN 80. The allegations of Paragraphs | through 79 are incorporated by reference as if set forth fully in this Paragraph. 81. | Emmett had a valid contract with Weston E. Walters and/or Wes Walters Realty, Inc. (collectively “Walters”), to engage in real estate agency marketing services. This contract is more specifically described in paragraphs 15 and 18 above. 82. Defendant Willemsen has willfully and intentionally interfered in Emmett’s contract with Walters, through the defamatory publications and republications -21-6/23/08 described above. Because the interference was in the form of another intentional tort, Willemsen cannot claim any privilege or justification as a defense (Prudential, 29 S.W.3d at 81). 83. Willemsen knew of Emmett’s contract with Walters, because one cannot join ABOR, as an associate member, without being in a contractual relationship with a broker. Willemsen admits, in her written statement of January 25, 2005, that she read the Emmett/Walters request, referring to Walters as Emmett’s “broker,” and judicially admitting the contract. 84. Willemsen had no identity of interest in Emmett’s contract with Walters. 85. Willemsen intentionally interfered in Emmett’s contract with Walters, by knowingly inducing Walters to terminate his contract with Emmett. This knowing inducement and interference were the proximate cause of Emmett’s injury. By intentionally defaming Emmett, by verbal and written publication to Foster, and hence by verbal and written republication, through Foster to Walters, Willemsen injured Emmett’s business and personal reputations, falsely imputed criminal conduct to Emmett, and impeached Emmett’s honesty until Walters terminated his contract with Emmett. Willemsen either wanted to cause this consequence, the natural result of her act, or knew that this consequence was substantially certain to result from her act, her intentional defamation of Emmett. Willemsen’s defamation against Emmett, and interference in his contract with Walters, are inextricably intertwined conduct. 86. The evidence of the effectiveness of this intent has been produced, by the Defendants in Emmett v. ABOR as ABOR 0154 and 0155, which are Walters’ letters to TREC and Emmett, reducing Emmett’s termination to writings. -22-6/23/08 87. Willemsen’s interference in Emmett’s contract with Walters has caused Emmett actual, un-liquidated damage and loss. 2. ABOR 88. The allegations of Paragraphs | through 87 are incorporated by reference as if set forth fully in this Paragraph. 89. Defendant ABOR has tortiously interfered in Emmett’s contract with Walters 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 Hardeman above, is re-urged and/or remade here against ABOR. B. CONTRACT WITH ABOR 1. WILLEMSEN 91. The allegations of Paragraphs 1 through 90 are incorporated by reference as if set forth fully in this Paragraph. 92. Emmett had a valid contract with the Austin Board of Realtors (ABOR), for the procurement of unique services, in support of Emmett’s real estate agency marketing, through Wes Walters Realty, Inc. This contract is more specifically described in paragraph 17 above. 93. Defendant Willemsen has willfully and intentionally interfered in Emmett’s contract with ABOR, through the defamatory publications and republications described above. Because the interference was in the form of another intentional tort, Willemsen cannot claim any privilege or justification as a defense (Prudential, 29 §.W.3d at 81). -23-6/23/08 94. Willemsen knew of Emmett’s contract with ABOR, referring to Walters as Emmett’s “broker” in her written statement, judicially admitting the contract. 95. As a regular employee, Willemsen had no identity of interest in Emmett’s contract with ABOR. 96. Willemsen intentionally interfered in Emmett’s contract with ABOR, by knowingly inducing ABOR to terminate its contract with Emmett. This knowing inducement and interference were the proximate cause of Emmett’s injury. By intentionally defaming Emmett, by written and verbal publication to Foster, and hence by written and verbal republication, through Foster to Walters, Willemsen injured Emmett’s business and personal reputations, falsely imputed criminal conduct to Emmett, and impeached Emmett’s honesty until Walters terminated his contract with Emmett. Following said termination of Emmett’s contract by Walters, and relying on same, Foster, acting for ABOR, “suspended” all of ABOR’s services to Emmett, despite his false denial of February 8, 2005. This suspension was full and permanent, constituting a material, anticipatory breach of contract, against Emmett, on ABOR’s part. Willemsen either wanted to cause this consequence, the natural result of her act, or knew that this consequence was substantially certain to result from her act, her intentional defamation of Emmett. Willemsen’s defamation against Emmett, and interference in his contract with ABOR, are inextricably intertwined conduct. 97. The evidence of the effectiveness of this intent has been acknowledged by the Defendants in Emmett v. ABOR, produced as ABOR 0154 and 0155, Walters’ letters to TREC and Emmett, which reduce Emmett’s termination to writings. That ABOR has these letters in its file shows the key role that Walters’ termination, of Emmett, played in -24-6/23/08 ABOR’s decision to breach its contract with Emmett. Thus, Willemsen’s defamation of Emmett to Walters, and interference in his contract with Walters, were primogenitor in Emmett’s loss of relationship with, and services from, ABOR, as demonstrated by ABOR. 98. Willemsen’s interference in Emmett’s contract with ABOR has caused, and will cause, Emmett actual, unliquidated damage and loss. 2. ABOR 99. The allegations of Paragraphs | through 98 are incorporated by reference as if set forth fully in this Paragraph. 100. ABOR is not liable for interfering in its own contract with Emmett, except to the degree that it specifically ratified, assisted or encouraged Willemsen’s actions. X. ACTUAL DAMAGES A. WILLEMSEN 101. The allegations of Paragraphs 1 through 100 are incorporated by reference as if set forth fully in this Paragraph. 102. Defendant Willemsen is liable to Emmett for her reckless and/or intentional, knowing, willful, false, defamatory, verbal publications and republications, which have resulted in actual damages to Emmett, including but not limited to the following: 1) General damages for injury to Emmett’s business character and/or reputation, in multiple instances, as found by the trier of fact; 2) General damages for injury to Emmett for falsely imputing criminal conduct to him, in multiple instances, as found by the trier of fact; 3) General damages for injury to Emmett’s feelings, in multiple instances, as found by the trier of fact; -25-6/23/08 4) General damages for injury to Emmett, by causing him mental anguish and humiliation, in multiple instances, as found by the trier of fact. 103. Defendant Willemsen is liable to Emmett for her reckless and/or intentional, knowing, willful, false, defamatory, written publications and republications, which have resulted in actual damages to Emmett, including but not limited to the following: 1) General damages for injury to Emmett’s business character and/or reputation, in multiple instances, as found by the trier of fact; 2) General damages for injury to Emmett’s personal character and/or reputation, in multiple instances, as found by the trier of fact: 3) General damages for injury to Emmett for falsely imputing criminal conduct to him, in multiple instances, as found by the trier of fact; 4) General damages for injury to Emmett for falsely impeaching his honesty, in multiple instances, as found by the trier of fact; 5) General damages for injury to Emmett’s feelings, in multiple instances, as found by the trier of fact; 6) General damages for injury to Emmett, by causing him mental anguish and humiliation, in multiple instances, as found by the trier of fact. 104. Defendant Willemsen is liable to Emmett for her knowing, willful, and intentional interference in his contract with Walters, which has resulted in actual damages to Emmett, including but not limited to the following: 1) General damages for injury to Emmett, by causing him mental anguish and humiliation, as found by the trier of fact. 2) General damages for injury to Emmett’s business character and/or reputation, as found by the trier of fact; -26-6/23/08 105. Defendant Willemsen is liable to Emmett for her knowing, willful, and intentional interference in his contract with ABOR, which has resulted in actual damages to Emmett, including but not limited to the following: 1) General damages for injury to Emmett, by causing him mental anguish and humiliation, as found by the trier of fact. 2) General damages for injury to Emmett’s business character and/or reputation, as found by the trier of fact; 106. The Defendants, in Emmett v. ABOR, have attempted to assert failure to mitigate damages as an affirmative defense, and Plaintiff Emmett expects Willemsen to do the same here. As in the earlier case, this defense is misplaced and ineffective, because Emmett is not asserting damages that are subject to being mitigated. B. ABOR 107. The allegations of Paragraphs 1 through 106 are incorporated by reference as if set forth fully in this Paragraph. 108. Defendant ABOR is vicariously liable for all the actual damages caused by Willemsen, under the doctrines of Agency and/or Respondeat Superior. 109. The Defendants, in Emmett v. ABOR, have attempted to assert failure to mitigate damages as an affirmative defense, and Plaintiff Emmett expects Willemsen to do the same here. As in the earlier case, this defense is misplaced and ineffective, because Emmett is not asserting damages that are subject to being mitigated. XI. EXEMPLARY DAMAGES 110. The allegations of Paragraphs 1 through 109 are incorporated by reference as if set forth fully in this Paragraph. 111. Plaintiff Emmett is an individual “claimant,” as defined in Tex. Civ. & Rem. Code § 41.001(1), the “Damages Act,” seeking exemplary damages against -27-6/23/08 Defendant Willemsen for her reckless and/or intentional, knowing, willful, false, defamatory, interfering, repeated and malicious conduct, in the underlying claims, for injuries against himself. 112. The underlying claims for slander, libel and tortious interference in contract fall within the control of the Damages Act, as defined in Tex. Civ. & Rem. Code § 41.002(a)(b). 113. Defendant Gina Willemsen is individually liable for her own wrongful conduct, as described above. Her reckless and/or intentional acts, conduct and/or communications, against Plaintiff Emmett, were and are so knowing, foreseeable, willful, false, defamatory, interfering, malicious, repeated, damaging, egregious, and on- going as to justify the awarding of exemplary damages to Emmett, as found by the trier of fact. 114. Her defamatory allegations, against Emmett, have already been published to over 20 individuals, with disastrous personal and business consequences to Emmett. 115. Her interference in two of Emmett’s contracts has had a crushing impact on Emmett. 116. The prohibition on Emmett’s physical presence on ABOR’s premises, put in place by David Foster at Willemsen’s behest, very likely will negatively impact on Emmett’s prospective business opportunities, harbinging long-term impact and possible future damages. XII. REQUEST FOR TRIAL BY JURY 117. The allegations of Paragraphs | through 116 are incorporated by reference as if set forth fully in this Paragraph. ~28 -6/23/08 118. Pursuant to TRCP 216, Plaintiff Emmett hereby requests trial by jury of the issues in this case. 119, Plaintiff Emmett has tendered the proper jury fee to the Clerk of the Court. WHEREFORE, Plaintiff requests that Willemsen and ABOR be cited to appear and answer in this suit, and that upon final jury trial Plaintiff have judgment against Defendant as follows: a) that Plaintiff have and recover from Defendants for his actual damages for multiple instances of slander, libel, and tortious interference in contract; b) that Plaintiff have and recover from Defendant Willemsen exemplary damages for Defendant’s individual, reckless and/or intentional, knowing, foreseeable, willful, false, defamatory, interfering, malicious, repeated, damaging, egregious, and ongoing conduct, in the commission of her wrongful acts against Plaintiff: c) that Plaintiff have and recover from Defendants prejudgment and post- judgment interest in accordance with applicable law; d) that Plaintiff have and recover from Defendants his costs of court; and e) that the Court provide Plaintiff with such other and further relief to which he is justly entitled. -29-6/23/08 Respectfully submitted, CHARLES H. EMMETT, JR. 1104 Water Hole Trail Cedar Park, Texas 78613 (512) 249-1687 (512) 249-1687 (Fax) By. CAw 2, Charles H. Emmett, Jr. PLAINTIFF PRO SE CERTIFICATE OF SERVICE This certifies that a true and correct copy, of the above and foregoing Plaintiff's First Amended Petition, has been delivered to Mr. Joseph R. Knight, Baker & Botts, LLP, 98 San Jacinto Bivd., Suite 1500, Austin, Texas 78701-4039, by U.S. Certified Mail, Return Receipt Requested, in accordance with the Texas Rules of Civil Procedure, on this 23" day of June 2006. Che ~~ FH Charles H. Emmett, Jr. -30-