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No. GN 6001783
CHARLES H. EMMETT, JR.
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IN THE DISTRICT COURT sy
OF TRAVIS COUNTY, FExAs,
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VS.
JACKLIN HARDEMAN AND THE
534 JUDICIAL DISTRICT,
AUSTIN BOARD OF REALTORS
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06 Jud 2
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PLAINTIFF’S FIRST AMENDED PETITION
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 Jacklin
Hardeman (Hardeman) and the Austin Board of Realtors (ABOR), and would
respectfully show the Court as follows:
I. DISCOVERY
Discovery in this case should be conducted under Level 2 of Tex. R. Civ.
P. 190.
Il. PARTIES
2. Plaintiff Charles H. Emmett, Jr. is an individual who resides in
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 itsPresident and CEO, David M. Foster, at 10900 Stonelake Bivd., Suite 100 Austin, Texas,
78759,
Ili. 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 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
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 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.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 Hardeman, 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 Hardeman, 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 Hardeman 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 thispetition, 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.
VE FACTS
14. The allegations of Paragraphs | 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 Emmett 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 statelicense, 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. Defendant 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 Jegal 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.
28. Hardeman, the receptionist, announced that ABOR does not offer advisory
opinions. The Emmett v. ABOR Defendants have denied that they do not give advisoryopinions. 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. 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 cogent,
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, she would simply have called her supervisor for instructions.
31. 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?
32. 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 ofHardeman’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.
33. 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 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 she
called no one immediately. The proper conclusion is that events did not occur as
represented by Hardeman.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 Gina Willemsen (Willemsen), in her written statement, produced by the
Defendant’s in Emmert 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. 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
De ent.
36. The advisor was Willemsen, whom Emmett has also chosen to sue
separately, filed as cause of action number GN 6002071, in the 201" Judicial District
Court of Travis County, Texas, styled Emmett v. Willemsen (Emmett v. Willemsen), for
her part in these events.
37. 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.
38. Emmett reiterated the request for an advisory opinion to Willemsen, only to
be told again that ABOR does not offer advisory opinions.39. 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.
40. Willemsen said that she would “pass it on,” and returned to her office,
request in hand. Emmett left the premises, voluntarily and without demand.
41. 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
all that followed. Plaintiff deems this disappearance to be an act of spoiliation of
evidence.
42. 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, 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
-10-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.
43. 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.
44. 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.
45. 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 calied 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.
46. Hardeman’s “affidavit” of January 31, 2005, created at Foster’s request,
states the following (Emmett’s controverting comments are in parenthesis):
-li-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;
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) “I ask him again, sir, what department do (sic) your form need to
go too (sic) and then he said, don’t start with me and that bureaucratic
-12-bullshit you just get me someone right now, so then he replied I need
Education;”
Emmett—(First bureaucracy is “bullshit,” then Emmett, the client,
mystically, abruptly thinks to request “Education”? But more to the point,
asserting that Emmett cussed in a public and professional environment,
especially in the light of the accusation of hostility, is common Jaw and
statutory libel _per_se, acting as an attack on Emmett’s business and
personal character and reputation.)
e) “Now at this time it left Mr. Emmett and myself in the front
together, he said again don’t give me that bureaucratic bullshit you son of
a bitch;”
Emmett—(Regarding the cussing, ditto the rejoinder made in “d.”
Additionally, Hardeman seems to imply, in the quote above, that she and
Emmett were left alone together, at the point of his worst, purported
cussing. This testimony is dubious, since no one else heard this cussing,
as verified 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.)
f) “I ask (sic) Mr. Emmett to please have a seat in order to get some
distance between the both of us since he was so hostile and someone will
be up shortly, he then backed away from the desk after he heard the front
door open...;”
Emmett—(Hardeman is insinuating criminally assaultive conduct, on
Emmett’s part—common law libel and slander per se.)
-13-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. ..7 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.)
47. Overall, aside from being in-artful and sometimes inarticulate, Hardeman’s
testimony is self-serving, illogical, counter-intuitive, false, rebutted and controverted.
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.
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 defamatory
communications (the Defendants admit, in Emmett v. ABOR, that Foster’s call was made
on January 31, 2005). Walters began by saying, “Well, it’s worse than you said,”
showing that he had come to doubt Emmett’s word. He continued, saying that Foster
claimed that Emmett had “thrown a fit” at ABOR’s office, and had called one of the
female employees “a bitch” (not a “son of a bitch” as Hardeman contends). Walters
further informed Emmeit that Foster claimed to have a videotape of “the whole thing,”
-14-(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 Waiters, 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
not know. Emmett’s defense to Walters must have placed some doubt in Walters’ mind,
since he arranged a meeting with Foster to view the evidence, on February 9, 2005, after
Foster returned from an out-of-town trip.
52. Subsequently, however, 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
-15-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 ethics advisory opinions) with it.
53. Thus, Walters stated to Emmett that Foster’s republication of Hardeman’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
0156, following-up on his previous phone conversation with the latter, and again
republishing Hardeman’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 Chairman of ABOR’s Board
of Directors, on this letter.
-16-55. 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, we ‘// 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 implies 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 Hardeman
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
view the evidence. Emmett thus concludes that Foster completely believed Hardeman’s
allegations against Emmett, adopting them as his own, and making his communications
to Walters, Sturgell, and others, absolute republications of Hardeman’s allegations,
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
-17-(mentioned in paragraph 54). ABOR/Foster, by republishing Hardeman’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 the Emmett v. ABOR Defendants did
unilaterally and arbitrarily suspend (terminate) all of ABOR’s services to Emmett,
including access to the MLS and LBS. They 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).
59. This termination was without notice or explanation, and followed the
communications and conduct, first on the part of Hardeman, 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 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 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 defamatory publications, induced ABOR to breach
its contract with Emmett.
VII. CLAIMS FOR SLANDER
A. HARDEMAN
61. The allegations of Paragraphs 1 through 60 are incorporated by reference
as if set forth fully in this Paragraph.
~18-62. Defendant Hardeman has slandered 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 Warmer, Anthony
Petry, Merle Long, Weston E. Waiters, Roger Sturgell, Joseph R. Knight, Allison
Bowers, other unknown staff and directors of the Austin Board of Realtors, other
unknown staff, associates and partners of Baker and Botts, LLP., and perhaps others, 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
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.
64, | Hardeman’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 written statements are the only evidence that
Hardeman has been able to produce to meet her burden under the affirmative defense of
substantial truth. As a witness, who is also a party with an interest, Hardeman’s affidavit
testimony is subject to being controverted. Emmett has already substantially
-19-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, 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, Hardeman 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 Hardeman knew her statements were false is required.
B. ABOR
67. The allegations of Paragraphs 1 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 Hardeman above, is
re-urged and/or remade here against ABOR.
-20-VIII. CLAIMS FOR STATUTORY & COMMON LAW LIBEL
A. HARDEMAN
70. The allegations of Paragraphs 1 through 69 are incorporated by reference as
if set forth fully in this Paragraph.
71. 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 others, 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.
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, 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.
73. Hardeman’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.
-21-74. 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
in that they have done injury to Emmett’s personal reputation.
75. | Hardeman’s and Willemsen’s written statements are the only evidence that
Hardeman has been able to produce to meet her burden under the affirmative defense of
substantial truth. As a witness, who is also a party with an interest, 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 Emmeit 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, Hardeman 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 Hardeman 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.78. 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 Hardeman above, is
re-urged and/or remade here against ABOR.
IX. CLAIMS FOR TORTIOUS INTERFERENCE IN CONTRACT
A. CONTRACT WITH WALTERS
1. HARDEMAN
80. The allegations of Paragraphs 1 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 “Waiters”), to engage in real estate agency marketing services.
This contract is more specifically described in paragraphs 15 and 18 above.
82. Defendant Hardeman has willfully and intentionally interfered in
Emmett’s contract with Walters, through the defamatory publications and republications
described above. Because the interference was in the form of another intentional tort,
Hardeman cannot claim any privilege or justification as a defense (Prudential, 29
S.W.3d at 81).
83. Hardeman 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.
Hardeman refers to Emmett as a “member” in the first sentence of her “affidavit,” thus
judicially admitting the contract.
84. | Hardeman had no identity of interest in Emmett’s contract with Walters.
-23-85. Hardeman 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, Hardeman 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.
Hardeman 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. Hardeman’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.
87. Hardeman’s interference in Emmett’s contract with Walters has caused
Emmett actual, un-liquidated damage and loss.
2. ABOR
88. The allegations of Paragraphs 1 through 87 are incorporated by reference as
if set forth fully in this Paragraph.
89. Defendant ABOR has tortiously interfered in Emmett’s contract with
Waiters through the actions of its agents, vice-principals and/or employees, and is liable
under the doctrines of Agency and/or Respondeat Superior.
-24-90. 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. HARDEMAN
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 Hardeman 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, Hardeman
cannot claim any privilege or justification as a defense (Prudential, 29 S.W.3d at 81).
94. Hardeman knew of Emmett’s contract with ABOR, referring to Emmett as
a “member” in the first sentence of her affidavit, judicially admitting the contract.
95. As a regular employee, Hardeman had no identity of interest in Emmett’s
contract with ABOR.
96. Hardeman 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, Hardeman injured Emmett’s
-25-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. Hardeman
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. Hardeman’s defamation against Emmett, and interference in his contract
with ABOR, are inextricably intertwined conduct.
97. The evidence, of the effectiveness of Hardeman’s 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 ABOR’s decision to breach its contract with Emmett.
Thus, Hardeman’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. Hardeman’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 1 through 98 are incorporated by reference as
if set forth fully in this Paragraph.
~26-100. ABOR is not liable for interfering in its own contract with Emmett, except
to the degree that it specifically ratified, assisted or encouraged Hardeman’s actions.
X. ACTUAL DAMAGES
A. HARDEMAN
101. The allegations of Paragraphs 1 through 100 are incorporated by reference
as if set forth fully in this Paragraph.
102. Defendant Hardeman 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:
nH 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.
103. Defendant Hardeman 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
Teputation, 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;
-27-4) 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 Hardeman 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:
dy 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;
105. Defendant Hardeman 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
Teputation, 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 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.
-28-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 Hardeman, 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 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.
XI. EXEMPLARY DAMAGES
110. The allegations of Paragraphs 1 through 109 are incorporated by
reference as if set forth fully in this Paragraph.
ti. 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, 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 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 knowing, foreseeable,
-29-willful, false, defamatory, interfering, malicious, repeated, damaging and egregious 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.
11S. 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 Hardeman’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 1 through 116 are incorporated by reference
as if set forth fully in this Paragraph.
118. Pursuant to TRCP 216, Plaintiff Emmett hereby requests tri
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000127587 x = ~> No. GN 6001783 CHARLES H. EMMETT, JR. Fpl ig i IN THE DISTRICT COURT sy OF TRAVIS COUNTY, FExAs, & : VS. JACKLIN HARDEMAN AND THE 534 JUDICIAL DISTRICT, AUSTIN BOARD OF REALTORS ww wee ee 06 Jud 2 [fname Herne PLAINTIFF’S FIRST AMENDED PETITION 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 Jacklin Hardeman (Hardeman) and the Austin Board of Realtors (ABOR), and would respectfully show the Court as follows: I. DISCOVERY Discovery in this case should be conducted under Level 2 of Tex. R. Civ. P. 190. Il. PARTIES 2. Plaintiff Charles H. Emmett, Jr. is an individual who resides in 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 itsPresident and CEO, David M. Foster, at 10900 Stonelake Bivd., Suite 100 Austin, Texas, 78759, Ili. 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 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 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 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.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 Hardeman, 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 Hardeman, 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 Hardeman 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 thispetition, 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. VE FACTS 14. The allegations of Paragraphs | 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 Emmett 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 statelicense, 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. Defendant 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 Jegal 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. 28. Hardeman, the receptionist, announced that ABOR does not offer advisory opinions. The Emmett v. ABOR Defendants have denied that they do not give advisoryopinions. 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. 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 cogent, 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, she would simply have called her supervisor for instructions. 31. 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? 32. 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 ofHardeman’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. 33. 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 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 she called no one immediately. The proper conclusion is that events did not occur as represented by Hardeman.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 Gina Willemsen (Willemsen), in her written statement, produced by the Defendant’s in Emmert 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. 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 De ent. 36. The advisor was Willemsen, whom Emmett has also chosen to sue separately, filed as cause of action number GN 6002071, in the 201" Judicial District Court of Travis County, Texas, styled Emmett v. Willemsen (Emmett v. Willemsen), for her part in these events. 37. 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. 38. Emmett reiterated the request for an advisory opinion to Willemsen, only to be told again that ABOR does not offer advisory opinions.39. 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. 40. Willemsen said that she would “pass it on,” and returned to her office, request in hand. Emmett left the premises, voluntarily and without demand. 41. 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 all that followed. Plaintiff deems this disappearance to be an act of spoiliation of evidence. 42. 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, 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 -10-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. 43. 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. 44. 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. 45. 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 calied 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. 46. Hardeman’s “affidavit” of January 31, 2005, created at Foster’s request, states the following (Emmett’s controverting comments are in parenthesis): -li-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; 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) “I ask him again, sir, what department do (sic) your form need to go too (sic) and then he said, don’t start with me and that bureaucratic -12-bullshit you just get me someone right now, so then he replied I need Education;” Emmett—(First bureaucracy is “bullshit,” then Emmett, the client, mystically, abruptly thinks to request “Education”? But more to the point, asserting that Emmett cussed in a public and professional environment, especially in the light of the accusation of hostility, is common Jaw and statutory libel _per_se, acting as an attack on Emmett’s business and personal character and reputation.) e) “Now at this time it left Mr. Emmett and myself in the front together, he said again don’t give me that bureaucratic bullshit you son of a bitch;” Emmett—(Regarding the cussing, ditto the rejoinder made in “d.” Additionally, Hardeman seems to imply, in the quote above, that she and Emmett were left alone together, at the point of his worst, purported cussing. This testimony is dubious, since no one else heard this cussing, as verified 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.) f) “I ask (sic) Mr. Emmett to please have a seat in order to get some distance between the both of us since he was so hostile and someone will be up shortly, he then backed away from the desk after he heard the front door open...;” Emmett—(Hardeman is insinuating criminally assaultive conduct, on Emmett’s part—common law libel and slander per se.) -13-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. ..7 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.) 47. Overall, aside from being in-artful and sometimes inarticulate, Hardeman’s testimony is self-serving, illogical, counter-intuitive, false, rebutted and controverted. 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. 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 defamatory communications (the Defendants admit, in Emmett v. ABOR, that Foster’s call was made on January 31, 2005). Walters began by saying, “Well, it’s worse than you said,” showing that he had come to doubt Emmett’s word. He continued, saying that Foster claimed that Emmett had “thrown a fit” at ABOR’s office, and had called one of the female employees “a bitch” (not a “son of a bitch” as Hardeman contends). Walters further informed Emmeit that Foster claimed to have a videotape of “the whole thing,” -14-(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 Waiters, 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 not know. Emmett’s defense to Walters must have placed some doubt in Walters’ mind, since he arranged a meeting with Foster to view the evidence, on February 9, 2005, after Foster returned from an out-of-town trip. 52. Subsequently, however, 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 -15-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 ethics advisory opinions) with it. 53. Thus, Walters stated to Emmett that Foster’s republication of Hardeman’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 0156, following-up on his previous phone conversation with the latter, and again republishing Hardeman’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 Chairman of ABOR’s Board of Directors, on this letter. -16-55. 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, we ‘// 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 implies 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 Hardeman 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 view the evidence. Emmett thus concludes that Foster completely believed Hardeman’s allegations against Emmett, adopting them as his own, and making his communications to Walters, Sturgell, and others, absolute republications of Hardeman’s allegations, 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 -17-(mentioned in paragraph 54). ABOR/Foster, by republishing Hardeman’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 the Emmett v. ABOR Defendants did unilaterally and arbitrarily suspend (terminate) all of ABOR’s services to Emmett, including access to the MLS and LBS. They 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). 59. This termination was without notice or explanation, and followed the communications and conduct, first on the part of Hardeman, 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 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 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 defamatory publications, induced ABOR to breach its contract with Emmett. VII. CLAIMS FOR SLANDER A. HARDEMAN 61. The allegations of Paragraphs 1 through 60 are incorporated by reference as if set forth fully in this Paragraph. ~18-62. Defendant Hardeman has slandered 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 Warmer, Anthony Petry, Merle Long, Weston E. Waiters, Roger Sturgell, Joseph R. Knight, Allison Bowers, other unknown staff and directors of the Austin Board of Realtors, other unknown staff, associates and partners of Baker and Botts, LLP., and perhaps others, 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 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. 64, | Hardeman’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 written statements are the only evidence that Hardeman has been able to produce to meet her burden under the affirmative defense of substantial truth. As a witness, who is also a party with an interest, Hardeman’s affidavit testimony is subject to being controverted. Emmett has already substantially -19-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, 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, Hardeman 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 Hardeman knew her statements were false is required. B. ABOR 67. The allegations of Paragraphs 1 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 Hardeman above, is re-urged and/or remade here against ABOR. -20-VIII. CLAIMS FOR STATUTORY & COMMON LAW LIBEL A. HARDEMAN 70. The allegations of Paragraphs 1 through 69 are incorporated by reference as if set forth fully in this Paragraph. 71. 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 others, 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. 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, 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. 73. Hardeman’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. -21-74. 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 in that they have done injury to Emmett’s personal reputation. 75. | Hardeman’s and Willemsen’s written statements are the only evidence that Hardeman has been able to produce to meet her burden under the affirmative defense of substantial truth. As a witness, who is also a party with an interest, 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 Emmeit 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, Hardeman 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 Hardeman 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.78. 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 Hardeman above, is re-urged and/or remade here against ABOR. IX. CLAIMS FOR TORTIOUS INTERFERENCE IN CONTRACT A. CONTRACT WITH WALTERS 1. HARDEMAN 80. The allegations of Paragraphs 1 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 “Waiters”), to engage in real estate agency marketing services. This contract is more specifically described in paragraphs 15 and 18 above. 82. Defendant Hardeman has willfully and intentionally interfered in Emmett’s contract with Walters, through the defamatory publications and republications described above. Because the interference was in the form of another intentional tort, Hardeman cannot claim any privilege or justification as a defense (Prudential, 29 S.W.3d at 81). 83. Hardeman 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. Hardeman refers to Emmett as a “member” in the first sentence of her “affidavit,” thus judicially admitting the contract. 84. | Hardeman had no identity of interest in Emmett’s contract with Walters. -23-85. Hardeman 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, Hardeman 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. Hardeman 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. Hardeman’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. 87. Hardeman’s interference in Emmett’s contract with Walters has caused Emmett actual, un-liquidated damage and loss. 2. ABOR 88. The allegations of Paragraphs 1 through 87 are incorporated by reference as if set forth fully in this Paragraph. 89. Defendant ABOR has tortiously interfered in Emmett’s contract with Waiters through the actions of its agents, vice-principals and/or employees, and is liable under the doctrines of Agency and/or Respondeat Superior. -24-90. 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. HARDEMAN 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 Hardeman 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, Hardeman cannot claim any privilege or justification as a defense (Prudential, 29 S.W.3d at 81). 94. Hardeman knew of Emmett’s contract with ABOR, referring to Emmett as a “member” in the first sentence of her affidavit, judicially admitting the contract. 95. As a regular employee, Hardeman had no identity of interest in Emmett’s contract with ABOR. 96. Hardeman 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, Hardeman injured Emmett’s -25-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. Hardeman 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. Hardeman’s defamation against Emmett, and interference in his contract with ABOR, are inextricably intertwined conduct. 97. The evidence, of the effectiveness of Hardeman’s 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 ABOR’s decision to breach its contract with Emmett. Thus, Hardeman’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. Hardeman’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 1 through 98 are incorporated by reference as if set forth fully in this Paragraph. ~26-100. ABOR is not liable for interfering in its own contract with Emmett, except to the degree that it specifically ratified, assisted or encouraged Hardeman’s actions. X. ACTUAL DAMAGES A. HARDEMAN 101. The allegations of Paragraphs 1 through 100 are incorporated by reference as if set forth fully in this Paragraph. 102. Defendant Hardeman 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: nH 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. 103. Defendant Hardeman 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 Teputation, 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; -27-4) 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 Hardeman 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: dy 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; 105. Defendant Hardeman 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 Teputation, 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 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. -28-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 Hardeman, 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 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. XI. EXEMPLARY DAMAGES 110. The allegations of Paragraphs 1 through 109 are incorporated by reference as if set forth fully in this Paragraph. ti. 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, 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 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 knowing, foreseeable, -29-willful, false, defamatory, interfering, malicious, repeated, damaging and egregious 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. 11S. 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 Hardeman’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 1 through 116 are incorporated by reference as if set forth fully in this Paragraph. 118. Pursuant to TRCP 216, Plaintiff Emmett hereby requests tri