section_id,filing_id,heading,summary
269,36,I. Introduction,"Court denied Kassab's original MSJ on limitations, res judicata, and attorney immunity on August 3, 2021. Despite nothing changing, Kassab reargues those issues. The 'illegal acts' defense fails because: (1) preempted by proportionate responsibility statute; (2) Pohl's actions adjudicated and not 'admittedly' criminal; (3) no proximate cause between alleged illegal act and Pohl's claims. Nicholson's release defense fails because she flagrantly violated the Settlement Agreement. Attorney immunity and judicial proceedings privilege don't apply to tortious acts outside client representation."
270,36,I. Factual Background,"Pohl engaged Precision Marketing for PR, evidence gathering, and client liaison services for BP and motor vehicle claims. Precision gained access to Pohl's confidential information. In November 2016, facilitated by Nicholson, Kassab and Montague purchased Pohl's stolen information from Favre for $250,000 plus bonuses, taking possession in December 2016. They used the information to solicit Pohl's clients. Pohl brought suit August 28, 2018."
271,36,The Barratry Allegations,"All allegedly illegal acts were subject to seven State Bar grievances, all dismissed. Walker testified Nicholson prepared him for deposition and told him 'buzz words to say' including 'barratry' and 'cold calling' — words he'd never heard before. Walker admitted he 'listened and did what my attorney said to do.' Santana wrote letter to Judge Starrett stating she was coerced into signing first affidavit by Nicholson and Favre. Audio recording confirms Nicholson/Favre pressure. Santana rejected Kassab's suggestion that Pohl set up barratry scheme ('The marketing firm is the one that hired me'). The $50,000 Santana payment was consideration under May 21, 2014 release agreement, predating both affidavits. Relevant Santana timeline: May 21, 2014 (release), Sept. 24, 2016 (first affidavit by Nicholson), Oct. 3, 2017 (coercion letter), Dec. 19, 2017 (retraction)."
272,36,Precision's Representations and Misconduct,"Precision represented to Pohl it had considerable experience with law firms, operated under guidance of experienced Mississippi attorneys, would organize public events for marketing, and would train/supervise staff for compliance. Precision failed to live up to expectations: referred clients to other lawyers, fabricated expenses, overcharged Pohl, failed to keep time records, then sued in Mississippi claiming underpayment. When lack of time records became a problem and Nicholson got involved, Precision changed position from hourly fee to percentage fee. Nicholson raised barratry issue, provided scripts to Precision witnesses, and threatened witnesses unless they delivered scripted testimony."
273,36,Evidentiary Objections,"Defendants rely on numerous inadmissible deposition transcripts from other lawsuits constituting hearsay under Tex. R. Evid. 801(3). Kassab cites eight inadmissible depositions over 100 times. Nicholson cites four more over a dozen times. Kassab's authentication of exhibits as 'business records' fails under Tex. R. Evid. 902(10) — David Kassab cannot be familiar with creation of items produced in discovery by other parties, failing 803(6)(A) personal knowledge requirement. Court should exclude and deny motions as insufficient."
274,36,B. Limitations Defense,"Pohl's claims accrued no earlier than November 2016 purchase. Conversion accrues at 'unlawful taking' (Burns v. Rochon); each possession is a new conversion (Pemex). TUTSA accrues when trade secret is 'actually used' commercially (Berry-Helfand). Conspiracy accrues with each underlying tort (Agar Corp.). Two-year conversion period and three-year TUTSA period both satisfied. Prior wrongful conduct by others (Walker, Ladner, Precision) is irrelevant to when claims against these defendants accrued — discovery rule doesn't shorten limitations to before defendant commits the tort. At most, defendants raise fact issue on accrual date."
275,36,C. Unlawful Acts Doctrine,"Three-part rebuttal: (1) Preempted by proportionate responsibility statute — Dugger v. Arredondo held common law unlawful acts doctrine is 'no longer a viable defense' under § 33.003; Kassab himself filed motion to designate responsible third parties under this statute. (2) Even if available, requires 'admittedly unlawful act' (Denson; Macias) and proximate cause (Pyeatt; Arredondo); Pohl can prove all claim elements without proving any illegal act (Marathon Oil; Macias); illegal conduct arises only in defense, not in Pohl's case (Carcamo-Lopez). (3) Kassab's cited cases (McAllister) are distinguishable — involved admitted illegal fee-sharing contracts, not ownership claims. (4) Defendants wholly failed to establish Pohl committed illegal acts as matter of law — State Bar dismissed all grievances. Pohl addresses four specific allegations: unauthorized practice of law, sharing office with non-lawyers, illegal solicitation, failure to protect client information — all dismissed by State Bar, all with controverting evidence."
276,36,D. Immunity Defenses,"Attorney immunity: applies only to 'lawyerly work' in adversarial contexts (Taylor v. Tolbert); requires both type of conduct and existence of attorney-client relationship at the time (Youngkin v. Hines). Purchasing stolen property before having any client is neither within scope of representation nor 'uniquely lawyerly capacity' (Landry's). Solicitation to obtain clients necessarily precedes attorney-client relationship formation (Tanox v. Akin Gump). Judicial proceedings privilege: applies only to communications in 'due course of judicial proceeding' and only to libel/slander claims (Landry's). Pohl's claims arise from theft, not communications. Rule 17.09: Pohl's suit is predicated on conversion/misappropriation, not on Kassab's grievance filings. The subsequent use of stolen property to file grievances does not trigger 17.09 protection."
277,36,E. Release Defense (Nicholson),"Nicholson has not provided admissible evidence of Settlement Agreement terms — purports to quote but hasn't attached or verified the agreement. Release language does not cover future torts not yet committed at time of agreement. More importantly, Nicholson flagrantly violated Settlement Agreement Paragraph 27: 'Claimants and Affiliates...promise and agree not to make or cause to be made any claim...and not to file or cause to be filed any legal action against any of the Lawyer Releasees [including Pohl].' Nicholson's violations invalidate any release defense."
278,36,F. TUTSA Protection of Trade Secrets,"Nicholson's argument that absence of confidentiality provision 'conclusively negates' TUTSA claim fails. TUTSA requires only 'reasonable measures under the circumstances.' Must consider special nature of attorney-client relationship and ability to share with 'lawyer representatives' under Rule 503. Pohl took extensive steps: informed Precision of confidential nature, office at top of Hancock Bank with 24-hour security, coded elevators, security cameras, files under lock and key, clearly labeled engagement agreements. Mississippi court issued protective orders: Oct. 14, 2016 order required strict confidentiality protections on client information; March 22, 2017 protective order defined 'Confidential Information' to include client names, addresses, telephone numbers with strict protections. Limited production in Mississippi went between parties who already had the information."
279,36,G. Ownership,"Kassab's own argument is self-defeating — even if client files belong to clients, Pohl had right to possession until clients demanded turnover, and there is no evidence of any such demand. Evidence demonstrates Pohl is rightful owner. Walker admitted he knew contracts, computers, and client lists belonged to Pohl. Ladner believed materials belonged to Pohl but was told by Nicholson they didn't — yet conceded they were all 'Pohl's stuff.' Contracts are voidable under barratry statute (§ 82.0651(a)), not void — none have been declared void."
280,36,H. Damages,"TUTSA authorizes recovery of 'actual loss caused by misappropriation' (§ 134A.004(a)), including lost profits, defendant's actual profits, value a reasonably prudent investor would have paid, development costs avoided, and reasonable royalty (Sw. Energy). Defense fees from defending barratry suits constitute actual loss. Martin-Simon v. Womack (only case defendants cite on prior attorneys' fees) was directly questioned by Texas Supreme Court in Akin Gump v. National Development and subsequent caselaw confirms prior litigation fees may be recovered as actual damages (Dixon v. Chang). Walker and Ladner testified Pohl's client list was worth $6 million. Favre confirmed information was one of Precision's 'most valuable asset.'"