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CANTON A0VA
000138693
~ 111212006
No. GN 601783
IN THE DISTRICT COURT:
CHARLES H. EMMETT, JR. )
) -
VS. ) OF TRAVIS COUNTY, TEXAS ~
) ee L
JACKLIN HARDEMAN AND THE ) 53" JUDICIAL DISTRICT
AUSTIN BOARD OF REALTORS )
PLAINTIFF’S SECOND AMENDED PETITION
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES Charles H. Emmett, Jr. (Emmett), Plaintiff in the above-styled K
numbered case, and files this his Second Amended Petition, complaining of Jackhin
Hardeman (Hardeman) and the Austin Board of Realtors (ABOR), and voi
respectfully show the Court as follows:
I. DISCOVERY n
1. Discovery in this case should be conducted under Level 2 of Tex. Retiv.S
P. 190. Me sy
I. PARTIES re 3
wo
2. Plaintiff Charles H. Emmett, Jr. is an individual who resides iff
Williamson County, Texas.
3. Defendant Jacklin Hardeman 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 Blvd., 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 its“711212006
President and CEO, David M. Foster, at 10900 Stonelake Blvd., Suite 100 Austin, Texas,
78759.
Il. JURISDICTION
5. The amount in controversy in this case exceeds the minimum
jurisdictional limits of this Court.
IV. VENUE
6. Venue is proper in Travis County, Texas, pursuant to Tex. Civ. Prac. &
Rem. Code §§15.002, since Defendant Hardeman 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. Hardeman is one of the “Unnamed Staff’ complained of in Emmett’s First
Amended Petition against the Austin Board of Realtors (ABOR), David M. Foster
(Foster), Roger Sturgell (Sturgell), Vicki Harris (Harris), et al (collectively “the ABOR
Defendants”), filed as cause of action number GN 600294, in the 3534 Judicial District
Court of Travis County, Texas, on January 25, 2006, 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
Hardeman’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.TA212006
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. As each individual, in the overall fact pattern, is responsible for his/her own
alleged torts, Emmett asserts his right to sue each Defendant individually, or together, as
he chooses. Lone Star Salt Water Disposal Co. v. Railroad Comm’n, 800 S.W.2d 924,
930 (Tex.App.—Austin 1990, no writ). 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. This suit will not add to Defendants’ costs, because
each Defendant must respond individually to the claims against it, and to the discovery
sought from it, regardless where the claims are asserted.
VL_ FACTS
12. The allegations of Paragraphs 1 through 11 are incorporated by reference as
if set forth fully in this Paragraph.
13. Prior to the communications and actions made the basis of the claims in this
case, Emmett entered into an agency relationship with Wes Walters Realty, Inc., and/or
with Weston E. Walters, its President, “Owner,” and Qualifying Broker (collectively
“Walters”), to engage in real estate brokerage. The effective date of the creation of this
formal, agency relationship was September 3, 2004, the date on which the Texas Real
Estate Commission (TREC) changed Emmett’s status from inactive to active under
Walters’ license. The Application for Sponsorship form is bates numbered EMMETT
0001, produced by Plaintiff in Emmett v. ABOR.
14. Walters was a member of ABOR.15. As a condition of creating the formal agency relationship with Walters,
Emmett was obliged to “join” ABOR as an affiliated agent/member. The effective date
of said joining was on September 13, 2004. Said affiliation 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.
16. Emmett and Walters had a marketing plan.
17. 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.
18. 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 EMMET
0004, produced by Plaintiff in Emmett v. ABOR.19. Defendant Hardeman was the receptionist on duty in ABOR’s lobby at the
time of Emmett’s arrival.
20. 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.
21. 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.
22. Emmett simply presented the request to TREC, without incident, and left
TREC’s premises.
23. 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.
24. Upon leaving TREC, Emmett went straight to ABOR, a trip of about 20 to
30 minutes.
25. 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.26. 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.
27. | 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.
28. It is Hardeman’s testimony on this point, made in a written statement
produced by the Defendants in Emmett v. ABOR as ABOR 0001, that she practically
begged Emmett, three times, to tell her which department he wanted. This is not
credible, controverted by the very nature of her job, which is to direct the flow of
client/members to the best source of help for their individual problem, without having to
ask the client. The very event of the unpleasant exchange indicates that Hardeman had
become an impediment to this flow. The fair conclusion is that Hardeman’s testimony is
false; if it were as she says, and she were as incompetent as she claims, she would simply
have called her supervisor for instructions.
29. It is not clear to Emmett why Hardeman took the “no advisory opinions”
posture, but it does explain her absurd story about Emmett’s demand for a signature
(discussed below) on a form that does not ask for one, and does not have a place for a
signature on its face. And who would expect a receptionist to be the proper signatory,
anyway?7/12/2006
30. As the discussion with Hardeman turned 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, are controverted by ABOR’s “Procedures for conducting business with members
who have lost their privilege of visiting our office” (“Procedures”), produced by the
Defendants in Emmett v. ABOR as ABOR 0005, which requires the following:
“If the member should visit our facility, staff should refrain from confrontation.
Instead, staff should notify their manager immediately. The manager will take the
member to the atrium area (away from other members and closer to security) and politely
remind the member how they are required to interact with ABoR. Jf the member gets
hostile, security should be summonsed and will escort the member from the premises”
(emphasis Emmett’s).
It is highly unlikely to be true that Hardeman would deviate from the script, given
the cloistered, controlling atmosphere at ABOR. And though Emmett had there-to-for
not been banished (discussed below), his purported, excessive conduct, as alleged by
Hardeman, should have triggered these procedures immediately. According the ABOR’s
Employee Handbook, produced in Emmett v. ABOR as ABOR 0010 to 0014, for
violating these procedures (“the association’s policies”) she could be disciplined, “up to
and including discharge.” Hardeman did not call her managing supervisor, according to
ABOR’s organizational chart, produced in Emmett v. ABOR as ABOR 0008, and shecalled no one immediately. The proper conclusion is that events did not occur as
represented by Hardeman.
32. 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 Gina Willemsen (Willemsen), in her written statement, produced by the
Defendant’s 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).
33. | Upon again demanding to speak to someone else, and apparently because
the demand was made in front of witnesses, Hardeman finally called for an advisor from
ABOR’s Education Department to come to the ABOR lobby. As opposed to Hardeman’s
sworn testimony, Emmett requested someone with knowledge of or connection to an
ethics advisory or review committee; it was Hardeman’s choice to call the Education
Department.
34. The advisor was Willemsen, whom Emmett has also chosen to sue
separately, filed as cause of action number GN 602071, in the 201" Judicial District
Court of Travis County, Texas, styled Emmett v. Willemsen (Emmett v. Willemsen), for
her part in these events.
35. Willemsen suggested that she and Emmett step out into the main hall of the
building, outside of ABOR’s lobby, and presumably the range of hearing of the witnesses
who were present.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. Itis interesting that the ABOR Defendants were unable to produce either the
original request or any copy, after a “diligent search,” as requested in Emmett v. ABOR.
In fact, they had to request that Plaintiff produce a copy to them. 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 all 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,aggressive, indecent, profane, or for any other reason. At no time did anyone seek
intervention from the security guard stationed in the building’s entry hall, who was in
“eye shot” of the conversation with Willemsen. Finally, at no time did any one threaten
to call the police, nor were they called for any reason, particularly for Emmett’s
threatening or disorderly conduct. This lack of official action, especially on Hardeman’s
or Willemsen’s parts, in the light of their allegations, is a huge mystery; it strongly
controverts their testimonies.
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 Willemsen),
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. Whoever the intermediate or final source to Foster,
Hardeman was the originator of the allegations.
-10-7/12/2006
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. Hardeman’s “affidavit” of January 31, 2005, created at Foster’s request,
states the following (Emmett’s controverting comments are in parenthesis):
a) Emmett came into ABOR’s offices, on January 24, 2005, “very
upset;” she said she could tell because of Emmett’s body language, and
the tone of his voice, “very loud and angry;” “Everything was tried to
assist Mr. Emmett but it was clear that no type of assistance would please
him since he was angry upon arrival to ABoR...”
Emmett—(The above quoted phrases, though normally innocuous, are
common law and statutory libel per se, in this context, acting as attacks on
Emmett’s business and personal character and reputation. Additionally,
this testimony is odd and absurd, given the nature of Emmett’s quest at
ABOR that day, and the previous courses of dealing at both TREC and
ABOR, which were very routine and peaceable. Also, she did not follow
the prescribed procedure, if Emmett had been as angry as she says,
impugning her testimony.)
b) Emmett said, “I have a legal document that need to be signed in a
very hostile voice (sic);”
Emmett—(Again, citing Emmett for hostility, in this context, is common
law and statutory libel per se, acting as an attack on Emmett’s business
and personal character and reputation. Also, Hardeman obviously did not
read the document [as the attorney at TREC had done], a request for an
ethics opinion, not a signature. And “hostile” about what? Hardeman
does not testify that she followed any particular, reasonable procedure,
including the one prescribed in the “Procedures,” for dealing with this
situation.)
c) Hardeman practically begged Emmett, three times, to tell her what
department he wanted her to call to help him;
-ll-Emmett—{This testimony is also not cogent or credible: the receptionist
needed the client to tell her whom to call to solve his problem? What
about “immediately” calling her manager?)
d) “T ask him again, sir, what department do (sic) your form need to
go too (sic) and then he said, don’t start with me and that bureaucratic
bullshit you just get me someone right now, so then he replied I need
Education;”
Emmett—(First bureaucracy is “bullshit,” then Emmett, the client,
mystically, abruptly thinks to request “Education”? But more to the point,
asserting that Emmett cussed in a public and professional environment,
especially in the light of the accusation of hostility, is common law and
statutory libel _per_se, acting as an attack on Emmett’s business and
personal character and reputation.)
e) “Now at this time it left Mr. Emmett and myself in the front
together, he said again don’t give me that bureaucratic bullshit you son of
a bitch;”
Emmett—(Regarding the cussing, ditto the rejoinder made in “d.”
Additionally, Hardeman seems to imply, in the quote above, that she and
Emmett were left alone together, at the point of his worst, purported
cussing. This testimony is dubious, since no one else heard this cussing,
as verified below, and witnesses were coming on going, by Hardeman’s
admission. But if Emmett were so hostile and profane as she testifies,
why did Hardeman allow herself to be alone with him, against policy?
And if Emmett was finally getting what he wanted, someone other than
Hardeman to talk to, why the sudden, additional attack? [Normal people
do not get angrier when they are getting what they want.] And most men
do not call a woman a “son of a bitch,” even if they do want to cuss one
out, which Emmett did not—it’s stupid and meaningless. Again,
Hardeman did not follow procedure. Her testimony is completely lacking
in credibility.)
fy “T ask (sic) Mr. Emmett to please have a seat in order to get some
distance between the both of us since he was so hostile and someone will
-12-TH1212006
be up shortly, he then backed away from the desk after he heard the front
door open...;”
Emmett—(Hardeman is insinuating criminally assaultive conduct, on
Emmett’s part—common law libel and slander per se.)
g) “He then told Gina (Willemsen) that I was rude too (sic) him and I
replied in a calm voice that I was not rude Mr. Emmett you were yelling at
”
me;
Emmett—(No other witness corroborates this “yelling.” In fact, Michael
Autry testifies that “nobody was yelling,” and Brett Boydston states, “I
was standing by the front desk towards the very end of the
conversation. ../ missed the yelling {Emmett’s emphasis on Boydston]..../
didn’t hear any threats, inappropriate language, etc...” These two
witnesses fully contradict and controvert Hardeman’s testimony [see
ABOR 0161], and it is not Willemsen’s testimony that Emmett was
yelling or cussing [see ABOR 0003]. But more to the point, asserting that
Emmett was yelling in a public and professional environment, especially
in the light of the accusations of hostility and cussing, is common law and
statutory libel per_se, acting as an attack on Emmett’s business and
personal character and reputation.)
46. Hardeman’s statement is not cogent, clear or credible, stating mostly
opinion and not facts.
47. Hardeman’s statement fails to conform to the standards of a proper affidavit,
and is not admissible.
48. The Defendants’ Privilege Log, produced in Emmett v. ABOR without a
bates number, indicates that Hardeman’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.
49. One week later, on January 31, 2005, Walters called Emmett to say that
Foster had called him, on the phone, to republish Hardeman’s and Willemsen’s
-13-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 (honesty). He continued,
saying that Foster claimed that Emmett had “thrown a fit” at ABOR’s office, and had
called one of the female employees “a bitch” (not a “son of a bitch” as Hardeman
contends). Walters further informed Emmett that Foster claimed to have a videotape of
“the whole thing,” (which 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.
50. 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 testimony about the events of January
24, 2005. Plaintiff deems this disappearance to be an act of spoiliation of evidence.
51. 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
-14-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,
supposedly after Foster returned from a previously planned trip.
52. | Emmett now has the answer to the rhetorical question he posed to Walters,
understanding that Foster and company, including Hardeman, 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.
53. Ultimately, Walters decided that he was not interested in “going down
there” with or without Emmett, a condition that Foster had put in place regarding the
February 9" meeting at ABOR’s offices, Walters also said that if Foster said they have
the evidence that they claim, that was “good enough for him” (Walters). Walters further
opined that Emmett was “finished down there” (at ABOR), and that he (Walters) could
not have an agent, who was not allowed to go to ABOR’s offices, associated with him.
Walters continued that if he maintained his relationship with Emmett, and that if he sent
anyone “down there,” that they (ABOR’s staff) would be wondering if this was “the
Frankenstein,” and that he could not have his reputation and business relationship with
“the Board” thus impinged. When Emmett reminded Walters that he had said that a
viewing was “fair enough,” Walters merely replied, “The decision is made.” Walters
concluded by informing Emmett that he was sending back the latter’s license to TREC,
ending their agency relationship.
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
0156, following-up on his previous phone conversation with the latter, and again
-15-T1212006
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 Hardeman’s written statement (“affidavit”).
55. Foster refused Emmett’s repeated requests (demands), placed by phone and
e-mail, the latter as ABOR 0152, 0153, 0157, 0158 and 0160, for a hearing, with an
opportunity to view the evidence. Emmett thus concludes that Foster completely
believed Hardeman’s and Willemsen’s allegations against Emmett, adopting them as his
own, and making his communications to Walters, Sturgell, and others, absolute
republications, complete with the intended results.
56. Foster admits that he never contacted Emmett to get his side of the story,
before making allegations on ABOR’s behalf, by phone and letter to Walters, nor before
engaging in all the other actions and conduct complained of below.
VII. CLAIMS FOR SLANDER
A. HARDEMAN
57. The allegations of Paragraphs 1 through 56 are incorporated by reference
as if set forth fully in this Paragraph.
58. Defendant Hardeman has slandered Emmett, by recklessly and/or
intentionally, willfully, and maliciously communicating to David Foster, Vicki Harris,
-16-Gina Willemsen, 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 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.
59. Emmett asserts that every single such verbal publication or republication
is a separate act of slander. Because these acts, if not based on substantial truth, are
intentional torts, Hardeman 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.
60. Hardeman’s publications are common law slander per se, in that they have
falsely imputed violent, dangerous, criminal conduct to Emmett, and/or in that they have
done injury to Emmett’s business reputation.
61. | 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, thanks to
the “lost” videotape. Presumably, the same will be true of Hardeman in this case. As a
witness, who is also a party with an interest, Hardeman’s affidavit testimony is subject to
being controverted. Emmett has already substantially controverted it, through the
-17-recitation of evidence produced by the Defendants in Emmett v. ABOR. Also, the
statement must be credible, which it is not. As a witness, who is also a party with an
interest in the separate lawsuit filed against her, Emmett v. Willemsen, Willemsen’s
affidavit testimony is subject to being controverted. Emmett has already substantially
controverted it, through the recitation of evidence produced by the Defendants in Emmett
v. ABOR. Additionally, Willemsen’s affidavit is flawed, the jurat having been added, by
Vicki Harris (a party with an interest), 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. As a result of these deficiencies in both witness statements, Hardeman
cannot meet her burden under the affirmative defense of substantial truth.
62. Emmett is relying on the theory of strict liability in tort, such that no
showing that Hardeman knew her statements were false is required.
B. ABOR
63. The allegations of Paragraphs 1 through 62 are incorporated by reference as
if set forth fully in this Paragraph.
64. 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.
65. Every claim and/or argument, urged or made against Hardeman above, is
re-urged and/or remade here against ABOR.
-18-VII. CLAIMS FOR STATUTORY & COMMON LAW LIBEL
A. HARDEMAN
66. The allegations of Paragraphs 1 through 65 are incorporated by reference as
if set forth fully in this Paragraph.
67. Defendant Hardeman has libeled Emmett, by recklessly and/or
intentionally, willfully, and maliciously communicating to David Foster, Vicki Harris,
Gina Willemsen, 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.
68. 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, Hardeman 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.
69. Hardeman’s publications are common law libel per se, in that they have
falsely imputed violent, dangerous, criminal conduct to Emmett, and/or in that they have
done injury to Emmett’s business reputation.
-19-70. Hardeman’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/or in that they have done injury to Emmett’s personal reputation.
71. 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, thanks to the
“lost” videotape. Presumably, the same will be true of Hardeman in this case. As a
witness, who is also a party with an interest, Hardeman’s affidavit testimony is subject to
being controverted. Emmett has already substantially controverted it, through the
recitation of evidence produced by the Defendants in Emmett v. ABOR. Also, the
statement must be credible, which it is not. As a witness, who is also a party with an
interest in the separate lawsuit filed against her, Emmett v. Willemsen, Willemsen’s
affidavit testimony is subject to being controverted. Emmett has already substantially
controverted it, through the recitation of evidence produced by the Defendants in Emmett
v. ABOR. Additionally, Willemsen’s affidavit is flawed, the jurat having been added, by
Vicki Harris (a party with an interest), 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. As a result of these deficiencies in both witness statements, Hardeman
cannot meet her burden under the affirmative defense of substantial truth.
72. Emmett is relying on the theory of strict liability in tort, such that no
showing that Hardeman knew her statements were false is required.
- 20 -B. ABOR
73. The allegations of Paragraphs 1 through 72 are incorporated by reference as
if set forth fully in this Paragraph.
74. 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.
75. Every claim and/or argument, urged or made against Hardeman above, is
re-urged and/or remade here against ABOR.
Ix. ACTUAL DAMAGES
A. HARDEMAN
76. The allegations of Paragraphs 1 through 75 are incorporated by reference as
if set forth fully in this Paragraph.
77. Defendant Hardeman is liable to Emmett for her reckless and/or
intentional, 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;
4) General damages for injury to Emmett, by causing him mental
anguish and humiliation, in multiple instances, as found by the trier of fact.
-21-78. Defendant Hardeman is liable to Emmett for her reckless and/or intentional,
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.
79. The Defendants, in Emmett v. ABOR, have attempted to assert failure to
mitigate damages as a defense, and Plaintiff Emmett expects Hardeman 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
80. The allegations of Paragraphs 1 through 79 are incorporated by reference as
if set forth fully in this Paragraph.
81. Defendant ABOR is vicariously liable for all the actual damages caused by
Hardeman, under the doctrines of Agency and/or Respondeat Superior.
82. The Defendants, in Emmett v. ABOR, have attempted to assert failure to
mitigate damages as a defense, and Plaintiff Emmett expects Hardeman to do the same
-22-here. As in the earlier case, this defense is misplaced and ineffective, because Emmett is
not asserting damages that are subject to being mitigated.
X. EXEMPLARY DAMAGES
83. The allegations of Paragraphs 1 through 82 are incorporated by reference
as if set forth fully in this Paragraph.
84. Plaintiff Emmett is an individual “claimant,” as defined in Tex. Civ. &
Rem. Code § 41.001(1), the “Damages Act,” seeking exemplary damages against
Defendant Hardeman for her reckless and/or intentional, willful, false, defamatory,
repeated and malicious conduct, in the underlying claims, for injuries against himself.
85. The underlying claims for slander and libel fall within the control of the
Damages Act, as defined in Tex. Civ. & Rem. Code § 41.002(a)(b).
86. Defendant Jacklin Hardeman 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 willful, false, defamatory,
malicious, repeated, damaging, egregious, and ongoing as to justify the awarding of
exemplary damages to Emmett, as found by the trier of fact.
87. Her defamatory allegations, against Emmett, have already been published to
over 20 individuals, with disastrous personal and business consequences to Emmett.
88. The prohibition on Emmett’s physical presence on ABOR’s premises, put in
place by David Foster at Hardeman’s behest, very likely will negatively impact on
Emmett’s prospective business opportunities, harbinging long-term impact and possible
future damages.
-23-XI. REQUEST FOR TRIAL BY JURY
89. The allegations of Paragraphs 1 through 88 are incorporated by reference as
if set forth fully in this Paragraph.
90. Pursuant to TRCP 216, Plaintiff Emmett hereby requests trial by jury of the
issues in this case.
91. Plaintiff Emmett has tendered the proper jury fee to the Clerk of the Court.
WHEREFORE, Plaintiff requests that Hardeman and ABOR be cited to appear
and answer in this suit, and that upon final jury trial Plaintiff have judgment against
Defendants as follows:
a) that Plaintiff have and recover from Defendants for his actual damages for
multiple instances of slander and libel;
b) that Plaintiff have and recover from Defendant Hardeman exemplary
damages for Defendant’s individual, reckless and/or intentional, willful, false,
defamatory, 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.
-24-
Preview
CANTON A0VA 000138693 ~ 111212006 No. GN 601783 IN THE DISTRICT COURT: CHARLES H. EMMETT, JR. ) ) - VS. ) OF TRAVIS COUNTY, TEXAS ~ ) ee L JACKLIN HARDEMAN AND THE ) 53" JUDICIAL DISTRICT AUSTIN BOARD OF REALTORS ) PLAINTIFF’S SECOND AMENDED PETITION TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES Charles H. Emmett, Jr. (Emmett), Plaintiff in the above-styled K numbered case, and files this his Second Amended Petition, complaining of Jackhin Hardeman (Hardeman) and the Austin Board of Realtors (ABOR), and voi respectfully show the Court as follows: I. DISCOVERY n 1. Discovery in this case should be conducted under Level 2 of Tex. Retiv.S P. 190. Me sy I. PARTIES re 3 wo 2. Plaintiff Charles H. Emmett, Jr. is an individual who resides iff Williamson County, Texas. 3. Defendant Jacklin Hardeman 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 Blvd., 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 its“711212006 President and CEO, David M. Foster, at 10900 Stonelake Blvd., Suite 100 Austin, Texas, 78759. Il. JURISDICTION 5. The amount in controversy in this case exceeds the minimum jurisdictional limits of this Court. IV. VENUE 6. Venue is proper in Travis County, Texas, pursuant to Tex. Civ. Prac. & Rem. Code §§15.002, since Defendant Hardeman 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. Hardeman is one of the “Unnamed Staff’ complained of in Emmett’s First Amended Petition against the Austin Board of Realtors (ABOR), David M. Foster (Foster), Roger Sturgell (Sturgell), Vicki Harris (Harris), et al (collectively “the ABOR Defendants”), filed as cause of action number GN 600294, in the 3534 Judicial District Court of Travis County, Texas, on January 25, 2006, 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 Hardeman’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.TA212006 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. As each individual, in the overall fact pattern, is responsible for his/her own alleged torts, Emmett asserts his right to sue each Defendant individually, or together, as he chooses. Lone Star Salt Water Disposal Co. v. Railroad Comm’n, 800 S.W.2d 924, 930 (Tex.App.—Austin 1990, no writ). 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. This suit will not add to Defendants’ costs, because each Defendant must respond individually to the claims against it, and to the discovery sought from it, regardless where the claims are asserted. VL_ FACTS 12. The allegations of Paragraphs 1 through 11 are incorporated by reference as if set forth fully in this Paragraph. 13. Prior to the communications and actions made the basis of the claims in this case, Emmett entered into an agency relationship with Wes Walters Realty, Inc., and/or with Weston E. Walters, its President, “Owner,” and Qualifying Broker (collectively “Walters”), to engage in real estate brokerage. The effective date of the creation of this formal, agency relationship was September 3, 2004, the date on which the Texas Real Estate Commission (TREC) changed Emmett’s status from inactive to active under Walters’ license. The Application for Sponsorship form is bates numbered EMMETT 0001, produced by Plaintiff in Emmett v. ABOR. 14. Walters was a member of ABOR.15. As a condition of creating the formal agency relationship with Walters, Emmett was obliged to “join” ABOR as an affiliated agent/member. The effective date of said joining was on September 13, 2004. Said affiliation 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. 16. Emmett and Walters had a marketing plan. 17. 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. 18. 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 EMMET 0004, produced by Plaintiff in Emmett v. ABOR.19. Defendant Hardeman was the receptionist on duty in ABOR’s lobby at the time of Emmett’s arrival. 20. 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. 21. 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. 22. Emmett simply presented the request to TREC, without incident, and left TREC’s premises. 23. 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. 24. Upon leaving TREC, Emmett went straight to ABOR, a trip of about 20 to 30 minutes. 25. 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.26. 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. 27. | 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. 28. It is Hardeman’s testimony on this point, made in a written statement produced by the Defendants in Emmett v. ABOR as ABOR 0001, that she practically begged Emmett, three times, to tell her which department he wanted. This is not credible, controverted by the very nature of her job, which is to direct the flow of client/members to the best source of help for their individual problem, without having to ask the client. The very event of the unpleasant exchange indicates that Hardeman had become an impediment to this flow. The fair conclusion is that Hardeman’s testimony is false; if it were as she says, and she were as incompetent as she claims, she would simply have called her supervisor for instructions. 29. It is not clear to Emmett why Hardeman took the “no advisory opinions” posture, but it does explain her absurd story about Emmett’s demand for a signature (discussed below) on a form that does not ask for one, and does not have a place for a signature on its face. And who would expect a receptionist to be the proper signatory, anyway?7/12/2006 30. As the discussion with Hardeman turned 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, are controverted by ABOR’s “Procedures for conducting business with members who have lost their privilege of visiting our office” (“Procedures”), produced by the Defendants in Emmett v. ABOR as ABOR 0005, which requires the following: “If the member should visit our facility, staff should refrain from confrontation. Instead, staff should notify their manager immediately. The manager will take the member to the atrium area (away from other members and closer to security) and politely remind the member how they are required to interact with ABoR. Jf the member gets hostile, security should be summonsed and will escort the member from the premises” (emphasis Emmett’s). It is highly unlikely to be true that Hardeman would deviate from the script, given the cloistered, controlling atmosphere at ABOR. And though Emmett had there-to-for not been banished (discussed below), his purported, excessive conduct, as alleged by Hardeman, should have triggered these procedures immediately. According the ABOR’s Employee Handbook, produced in Emmett v. ABOR as ABOR 0010 to 0014, for violating these procedures (“the association’s policies”) she could be disciplined, “up to and including discharge.” Hardeman did not call her managing supervisor, according to ABOR’s organizational chart, produced in Emmett v. ABOR as ABOR 0008, and shecalled no one immediately. The proper conclusion is that events did not occur as represented by Hardeman. 32. 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 Gina Willemsen (Willemsen), in her written statement, produced by the Defendant’s 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). 33. | Upon again demanding to speak to someone else, and apparently because the demand was made in front of witnesses, Hardeman finally called for an advisor from ABOR’s Education Department to come to the ABOR lobby. As opposed to Hardeman’s sworn testimony, Emmett requested someone with knowledge of or connection to an ethics advisory or review committee; it was Hardeman’s choice to call the Education Department. 34. The advisor was Willemsen, whom Emmett has also chosen to sue separately, filed as cause of action number GN 602071, in the 201" Judicial District Court of Travis County, Texas, styled Emmett v. Willemsen (Emmett v. Willemsen), for her part in these events. 35. Willemsen suggested that she and Emmett step out into the main hall of the building, outside of ABOR’s lobby, and presumably the range of hearing of the witnesses who were present.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. Itis interesting that the ABOR Defendants were unable to produce either the original request or any copy, after a “diligent search,” as requested in Emmett v. ABOR. In fact, they had to request that Plaintiff produce a copy to them. 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 all 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,aggressive, indecent, profane, or for any other reason. At no time did anyone seek intervention from the security guard stationed in the building’s entry hall, who was in “eye shot” of the conversation with Willemsen. Finally, at no time did any one threaten to call the police, nor were they called for any reason, particularly for Emmett’s threatening or disorderly conduct. This lack of official action, especially on Hardeman’s or Willemsen’s parts, in the light of their allegations, is a huge mystery; it strongly controverts their testimonies. 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 Willemsen), 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. Whoever the intermediate or final source to Foster, Hardeman was the originator of the allegations. -10-7/12/2006 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. Hardeman’s “affidavit” of January 31, 2005, created at Foster’s request, states the following (Emmett’s controverting comments are in parenthesis): a) Emmett came into ABOR’s offices, on January 24, 2005, “very upset;” she said she could tell because of Emmett’s body language, and the tone of his voice, “very loud and angry;” “Everything was tried to assist Mr. Emmett but it was clear that no type of assistance would please him since he was angry upon arrival to ABoR...” Emmett—(The above quoted phrases, though normally innocuous, are common law and statutory libel per se, in this context, acting as attacks on Emmett’s business and personal character and reputation. Additionally, this testimony is odd and absurd, given the nature of Emmett’s quest at ABOR that day, and the previous courses of dealing at both TREC and ABOR, which were very routine and peaceable. Also, she did not follow the prescribed procedure, if Emmett had been as angry as she says, impugning her testimony.) b) Emmett said, “I have a legal document that need to be signed in a very hostile voice (sic);” Emmett—(Again, citing Emmett for hostility, in this context, is common law and statutory libel per se, acting as an attack on Emmett’s business and personal character and reputation. Also, Hardeman obviously did not read the document [as the attorney at TREC had done], a request for an ethics opinion, not a signature. And “hostile” about what? Hardeman does not testify that she followed any particular, reasonable procedure, including the one prescribed in the “Procedures,” for dealing with this situation.) c) Hardeman practically begged Emmett, three times, to tell her what department he wanted her to call to help him; -ll-Emmett—{This testimony is also not cogent or credible: the receptionist needed the client to tell her whom to call to solve his problem? What about “immediately” calling her manager?) d) “T ask him again, sir, what department do (sic) your form need to go too (sic) and then he said, don’t start with me and that bureaucratic bullshit you just get me someone right now, so then he replied I need Education;” Emmett—(First bureaucracy is “bullshit,” then Emmett, the client, mystically, abruptly thinks to request “Education”? But more to the point, asserting that Emmett cussed in a public and professional environment, especially in the light of the accusation of hostility, is common law and statutory libel _per_se, acting as an attack on Emmett’s business and personal character and reputation.) e) “Now at this time it left Mr. Emmett and myself in the front together, he said again don’t give me that bureaucratic bullshit you son of a bitch;” Emmett—(Regarding the cussing, ditto the rejoinder made in “d.” Additionally, Hardeman seems to imply, in the quote above, that she and Emmett were left alone together, at the point of his worst, purported cussing. This testimony is dubious, since no one else heard this cussing, as verified below, and witnesses were coming on going, by Hardeman’s admission. But if Emmett were so hostile and profane as she testifies, why did Hardeman allow herself to be alone with him, against policy? And if Emmett was finally getting what he wanted, someone other than Hardeman to talk to, why the sudden, additional attack? [Normal people do not get angrier when they are getting what they want.] And most men do not call a woman a “son of a bitch,” even if they do want to cuss one out, which Emmett did not—it’s stupid and meaningless. Again, Hardeman did not follow procedure. Her testimony is completely lacking in credibility.) fy “T ask (sic) Mr. Emmett to please have a seat in order to get some distance between the both of us since he was so hostile and someone will -12-TH1212006 be up shortly, he then backed away from the desk after he heard the front door open...;” Emmett—(Hardeman is insinuating criminally assaultive conduct, on Emmett’s part—common law libel and slander per se.) g) “He then told Gina (Willemsen) that I was rude too (sic) him and I replied in a calm voice that I was not rude Mr. Emmett you were yelling at ” me; Emmett—(No other witness corroborates this “yelling.” In fact, Michael Autry testifies that “nobody was yelling,” and Brett Boydston states, “I was standing by the front desk towards the very end of the conversation. ../ missed the yelling {Emmett’s emphasis on Boydston]..../ didn’t hear any threats, inappropriate language, etc...” These two witnesses fully contradict and controvert Hardeman’s testimony [see ABOR 0161], and it is not Willemsen’s testimony that Emmett was yelling or cussing [see ABOR 0003]. But more to the point, asserting that Emmett was yelling in a public and professional environment, especially in the light of the accusations of hostility and cussing, is common law and statutory libel per_se, acting as an attack on Emmett’s business and personal character and reputation.) 46. Hardeman’s statement is not cogent, clear or credible, stating mostly opinion and not facts. 47. Hardeman’s statement fails to conform to the standards of a proper affidavit, and is not admissible. 48. The Defendants’ Privilege Log, produced in Emmett v. ABOR without a bates number, indicates that Hardeman’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. 49. One week later, on January 31, 2005, Walters called Emmett to say that Foster had called him, on the phone, to republish Hardeman’s and Willemsen’s -13-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 (honesty). He continued, saying that Foster claimed that Emmett had “thrown a fit” at ABOR’s office, and had called one of the female employees “a bitch” (not a “son of a bitch” as Hardeman contends). Walters further informed Emmett that Foster claimed to have a videotape of “the whole thing,” (which 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. 50. 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 testimony about the events of January 24, 2005. Plaintiff deems this disappearance to be an act of spoiliation of evidence. 51. 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 -14-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, supposedly after Foster returned from a previously planned trip. 52. | Emmett now has the answer to the rhetorical question he posed to Walters, understanding that Foster and company, including Hardeman, 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. 53. Ultimately, Walters decided that he was not interested in “going down there” with or without Emmett, a condition that Foster had put in place regarding the February 9" meeting at ABOR’s offices, Walters also said that if Foster said they have the evidence that they claim, that was “good enough for him” (Walters). Walters further opined that Emmett was “finished down there” (at ABOR), and that he (Walters) could not have an agent, who was not allowed to go to ABOR’s offices, associated with him. Walters continued that if he maintained his relationship with Emmett, and that if he sent anyone “down there,” that they (ABOR’s staff) would be wondering if this was “the Frankenstein,” and that he could not have his reputation and business relationship with “the Board” thus impinged. When Emmett reminded Walters that he had said that a viewing was “fair enough,” Walters merely replied, “The decision is made.” Walters concluded by informing Emmett that he was sending back the latter’s license to TREC, ending their agency relationship. 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 0156, following-up on his previous phone conversation with the latter, and again -15-T1212006 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 Hardeman’s written statement (“affidavit”). 55. Foster refused Emmett’s repeated requests (demands), placed by phone and e-mail, the latter as ABOR 0152, 0153, 0157, 0158 and 0160, for a hearing, with an opportunity to view the evidence. Emmett thus concludes that Foster completely believed Hardeman’s and Willemsen’s allegations against Emmett, adopting them as his own, and making his communications to Walters, Sturgell, and others, absolute republications, complete with the intended results. 56. Foster admits that he never contacted Emmett to get his side of the story, before making allegations on ABOR’s behalf, by phone and letter to Walters, nor before engaging in all the other actions and conduct complained of below. VII. CLAIMS FOR SLANDER A. HARDEMAN 57. The allegations of Paragraphs 1 through 56 are incorporated by reference as if set forth fully in this Paragraph. 58. Defendant Hardeman has slandered Emmett, by recklessly and/or intentionally, willfully, and maliciously communicating to David Foster, Vicki Harris, -16-Gina Willemsen, 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 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. 59. Emmett asserts that every single such verbal publication or republication is a separate act of slander. Because these acts, if not based on substantial truth, are intentional torts, Hardeman 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. 60. Hardeman’s publications are common law slander per se, in that they have falsely imputed violent, dangerous, criminal conduct to Emmett, and/or in that they have done injury to Emmett’s business reputation. 61. | 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, thanks to the “lost” videotape. Presumably, the same will be true of Hardeman in this case. As a witness, who is also a party with an interest, Hardeman’s affidavit testimony is subject to being controverted. Emmett has already substantially controverted it, through the -17-recitation of evidence produced by the Defendants in Emmett v. ABOR. Also, the statement must be credible, which it is not. As a witness, who is also a party with an interest in the separate lawsuit filed against her, Emmett v. Willemsen, Willemsen’s affidavit testimony is subject to being controverted. Emmett has already substantially controverted it, through the recitation of evidence produced by the Defendants in Emmett v. ABOR. Additionally, Willemsen’s affidavit is flawed, the jurat having been added, by Vicki Harris (a party with an interest), 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. As a result of these deficiencies in both witness statements, Hardeman cannot meet her burden under the affirmative defense of substantial truth. 62. Emmett is relying on the theory of strict liability in tort, such that no showing that Hardeman knew her statements were false is required. B. ABOR 63. The allegations of Paragraphs 1 through 62 are incorporated by reference as if set forth fully in this Paragraph. 64. 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. 65. Every claim and/or argument, urged or made against Hardeman above, is re-urged and/or remade here against ABOR. -18-VII. CLAIMS FOR STATUTORY & COMMON LAW LIBEL A. HARDEMAN 66. The allegations of Paragraphs 1 through 65 are incorporated by reference as if set forth fully in this Paragraph. 67. Defendant Hardeman has libeled Emmett, by recklessly and/or intentionally, willfully, and maliciously communicating to David Foster, Vicki Harris, Gina Willemsen, 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. 68. 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, Hardeman 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. 69. Hardeman’s publications are common law libel per se, in that they have falsely imputed violent, dangerous, criminal conduct to Emmett, and/or in that they have done injury to Emmett’s business reputation. -19-70. Hardeman’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/or in that they have done injury to Emmett’s personal reputation. 71. 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, thanks to the “lost” videotape. Presumably, the same will be true of Hardeman in this case. As a witness, who is also a party with an interest, Hardeman’s affidavit testimony is subject to being controverted. Emmett has already substantially controverted it, through the recitation of evidence produced by the Defendants in Emmett v. ABOR. Also, the statement must be credible, which it is not. As a witness, who is also a party with an interest in the separate lawsuit filed against her, Emmett v. Willemsen, Willemsen’s affidavit testimony is subject to being controverted. Emmett has already substantially controverted it, through the recitation of evidence produced by the Defendants in Emmett v. ABOR. Additionally, Willemsen’s affidavit is flawed, the jurat having been added, by Vicki Harris (a party with an interest), 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. As a result of these deficiencies in both witness statements, Hardeman cannot meet her burden under the affirmative defense of substantial truth. 72. Emmett is relying on the theory of strict liability in tort, such that no showing that Hardeman knew her statements were false is required. - 20 -B. ABOR 73. The allegations of Paragraphs 1 through 72 are incorporated by reference as if set forth fully in this Paragraph. 74. 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. 75. Every claim and/or argument, urged or made against Hardeman above, is re-urged and/or remade here against ABOR. Ix. ACTUAL DAMAGES A. HARDEMAN 76. The allegations of Paragraphs 1 through 75 are incorporated by reference as if set forth fully in this Paragraph. 77. Defendant Hardeman is liable to Emmett for her reckless and/or intentional, 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; 4) General damages for injury to Emmett, by causing him mental anguish and humiliation, in multiple instances, as found by the trier of fact. -21-78. Defendant Hardeman is liable to Emmett for her reckless and/or intentional, 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. 79. The Defendants, in Emmett v. ABOR, have attempted to assert failure to mitigate damages as a defense, and Plaintiff Emmett expects Hardeman 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 80. The allegations of Paragraphs 1 through 79 are incorporated by reference as if set forth fully in this Paragraph. 81. Defendant ABOR is vicariously liable for all the actual damages caused by Hardeman, under the doctrines of Agency and/or Respondeat Superior. 82. The Defendants, in Emmett v. ABOR, have attempted to assert failure to mitigate damages as a defense, and Plaintiff Emmett expects Hardeman to do the same -22-here. As in the earlier case, this defense is misplaced and ineffective, because Emmett is not asserting damages that are subject to being mitigated. X. EXEMPLARY DAMAGES 83. The allegations of Paragraphs 1 through 82 are incorporated by reference as if set forth fully in this Paragraph. 84. Plaintiff Emmett is an individual “claimant,” as defined in Tex. Civ. & Rem. Code § 41.001(1), the “Damages Act,” seeking exemplary damages against Defendant Hardeman for her reckless and/or intentional, willful, false, defamatory, repeated and malicious conduct, in the underlying claims, for injuries against himself. 85. The underlying claims for slander and libel fall within the control of the Damages Act, as defined in Tex. Civ. & Rem. Code § 41.002(a)(b). 86. Defendant Jacklin Hardeman 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 willful, false, defamatory, malicious, repeated, damaging, egregious, and ongoing as to justify the awarding of exemplary damages to Emmett, as found by the trier of fact. 87. Her defamatory allegations, against Emmett, have already been published to over 20 individuals, with disastrous personal and business consequences to Emmett. 88. The prohibition on Emmett’s physical presence on ABOR’s premises, put in place by David Foster at Hardeman’s behest, very likely will negatively impact on Emmett’s prospective business opportunities, harbinging long-term impact and possible future damages. -23-XI. REQUEST FOR TRIAL BY JURY 89. The allegations of Paragraphs 1 through 88 are incorporated by reference as if set forth fully in this Paragraph. 90. Pursuant to TRCP 216, Plaintiff Emmett hereby requests trial by jury of the issues in this case. 91. Plaintiff Emmett has tendered the proper jury fee to the Clerk of the Court. WHEREFORE, Plaintiff requests that Hardeman and ABOR be cited to appear and answer in this suit, and that upon final jury trial Plaintiff have judgment against Defendants as follows: a) that Plaintiff have and recover from Defendants for his actual damages for multiple instances of slander and libel; b) that Plaintiff have and recover from Defendant Hardeman exemplary damages for Defendant’s individual, reckless and/or intentional, willful, false, defamatory, 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. -24-