Filing Sections
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25 rows where filing_id = 66
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| section_id ▼ | filing_id | heading | summary |
|---|---|---|---|
| 498 | 66 66 | Summary | Lists 22 grounds for new trial (see doc_type_detail for enumeration). Argues that to the extent Court does not grant JNOV, it should grant new trial for any one of the listed reasons. |
| 499 | 66 66 | I. Newly discovered evidence of bribery and witness tampering | In a December 8, 2023 recorded phone call with Kassab, Scott Walker (co-owner of Precision) confessed he and Kirk Ladner were promised 30% of any judgment against Kassab in exchange for their depositions, testimony, and positions. Walker said they were coached on how to be deposed, and 'the whole premise of the depositions was based on the 30 percent that we were promised.' Constitutes witness tampering (Tex. Pen. Code § 36.05(a)) and suborned aggravated perjury (§§ 37.02, 37.03). Walker reversed position between Mississippi litigation (testified Pohl paid $5M in barratry money, 'clear to him it was barratry') and this case (recanted after being coached by Pohl). Walker also reversed on ownership of 17 boxes of materials. Walker's statements admissible as statements against penal interest (Tex. R. Evid. 803(24)(A)) and as agent/co-conspirator statements (Tex. R. Evid. 801(e)(2)(D),(E)). False testimony impacted Q1, Q2, Q4. |
| 500 | 66 66 | II. Factual insufficiency — Q1 trade secret ownership | Insufficient evidence that Pohl owned trade secrets. Attorney-client contracts owned by clients (In re George). Pohl's expert Zavitsanos testimony was conclusory. Pohl's own office manager Mary Francis Arnold testified she did not consider contracts trade secrets. Client lists created by Jimmy Williamson and Precision, not Pohl; Favre testified Precision's list owned by Precision. Pohl testified he did not have a list. No evidence of independent economic value or competitive advantage (Fmc Techs.). No reasonable secrecy measures — contracts not marked confidential, multiple people had unfettered access, Arnold kept information at home in unlocked cabinets, information also in Ladner's garage unsecured, master list on PACER for six years, produced in Mississippi litigation without protective order. |
| 501 | 66 66 | III. Q2 charge error — failure to distinguish acts of each defendant | Q2 improperly tracked § 134A.002(3)(A) (direct misappropriation) when Pohl only pled indirect misappropriation under § 134A.002(3)(B). Definition of 'improper means' improperly included multiple acts beyond theft when Pohl only alleged theft. Jury influenced by erroneous theories — found Precision did not misappropriate yet found Kassab 70% responsible. Broad-form question error under Crown Life v. Casteel; cannot rule out jury relied on invalid theory (Morrison). Harmful error. |
| 502 | 66 66 | IV. Factual insufficiency — Q2 misappropriation | Jury found Precision did NOT misappropriate (Q2(a)(3), Q2(b)(3)) and assigned 0% fault (Q4(3)). If Precision didn't misappropriate, Favre couldn't have acquired by improper means, breaking chain to Kassab. Favre purchased Precision which certified ownership; Favre certified to Kassab information belonged to Precision. No evidence Kassab knew or had reason to know information was Pohl's trade secret. |
| 503 | 66 66 | V. Q3 charge error — wrongful conduct untied to charge | Q3 asked about Pohl's wrongful conduct but was not tied to privilege question, proportionate responsibility, or anything else in charge. Finding left hanging without effect on other questions. |
| 504 | 66 66 | VI. Proportionate responsibility question error | Court refused Kassab's proposed proportionate responsibility question (Exhibit 5, Proposed Question 7) which would have allowed jury to assign fault to Pohl if they found his wrongful conduct contributed. Instead Q4 only asked about parties found in Q2 — jury put 0% for Pohl because Pohl wasn't identified in Q2. Improper limitation. |
| 505 | 66 66 | VII. Q5 limitations question error — 'by Kassab' language | Q5 improperly included 'by Kassab' when misappropriation is not continuing tort and conspiracy liability runs from any co-conspirator's first act. Proper inquiry is when misappropriation by any alleged co-conspirator was discovered. Evidence: Pohl knew of Precision's theft in June 2014; sale to Favre in May 2015; lawsuit filed August 2018 — more than 3 years. Under Agar Corp., conspiracy claim accrues when underlying tort accrues. |
| 506 | 66 66 | VIII. Factual insufficiency — Q5 answer | Jury found Pohl should have discovered misappropriation by August 19, 2017. Uncontroverted evidence showed Pohl knew of Precision's appropriation in June 2014. Pohl testified Kassab was part of 'team of thieves' in 2014. At latest, discovery should have been May 2015 when Precision sold to Favre. |
| 507 | 66 66 | IX. Refusal to submit unlawful acts defense (Proposed Q6) and immunity/privilege defense (Proposed Q8) | Trial court required to submit questions raised by pleadings and evidence (Tex. R. Civ. P. 278, Elbaor v. Smith). (A) Proposed Q6 asked whether Pohl committed barratry/unauthorized practice to acquire trade secrets — supported by substantial evidence including Pohl's own testimony, Arnold testimony, Donalda Pohl testimony, Lacy Reese testimony, Kassab testimony, Professor Cooper expert testimony. (B) Proposed Q8 asked whether Kassab used/disclosed information to report suspected violation of law — supported by evidence Kassab disclosed to State Bar, courts, affected clients. Both were contested critical issues; refusal constituted harmful error (R.R. Comm'n v. Gulf Energy, Palazzolo). |
| 508 | 66 66 | X. Exclusion of barratry expert testimony | Court improperly precluded Kassab and experts from testifying Pohl committed barratry. Expert opinion on ultimate issue permissible (Tex. R. Evid. 704). Whether Pohl committed barratry is mixed question of law and fact (In re Christus Spohn, Mega Child Care). Texas courts regularly allow expert testimony on barratry (Kilpatrick, Mercier, Reynolds v. State). Kassab limited to testifying only to personal 'belief.' Exclusion probably caused improper verdict — jury could have found Pohl not legal owner of trade secrets or primarily responsible for his injuries. |
| 509 | 66 66 | XI. Q6 charge error — 'in an attorney client relationship' language | Trial court may not comment on weight of evidence (Tex. R. Civ. P. 277, Bilotto). 'While in an attorney client relationship' language in Q6 suggested court's opinion that Kassab could not have used trade secrets while in attorney-client relationship because alleged misappropriation occurred before Kassab had clients. This was improper comment on weight of evidence. |
| 510 | 66 66 | XII. Factual insufficiency — Q6 attorney-client relationship | Jury's 'No' answer to Q6 supported by insufficient evidence. Evidence demonstrated Kassab used client contact information to send notification letters through middle of 2017 while in attorney-client relationships with hundreds of clients beginning February 2017. Except for one grievance, Kassab filed all proceedings on behalf of clients while in attorney-client relationships. Acquisition of clients and filing lawsuits fall within attorney immunity (Youngkin v. Hines). Court of appeals previously noted conduct 'arose out of commercial transaction involving type of legal services Kassab provides' (Kassab v. Pohl, 612 S.W.3d at 578). |
| 511 | 66 66 | XIII. Q7(1) charge error — attorney fees not recoverable under TUTSA | TUTSA 'actual loss' (§ 134A.004) does not include attorney fees from other litigation. Sister-state cases define actual loss as lost profits, lost customers, lost market share (K3 Enter., GME v. Carter, Twin Falls Staffing). Pre-TUTSA Texas law same (Sw. Energy). Fees from prior litigation generally not recoverable absent agreement (Martin-Simon, Tana Oil). Tort of another exception not adopted by Texas Supreme Court (Akin Gump), rejected by 14th COA (Naschke), requires wholly innocent plaintiff (Per-Se Techs.) — jury found Pohl not wholly innocent (Q3), and Pohl stipulated he was not seeking equitable remedies. Expert/lay opinion testimony must be helpful (Tex. R. Evid. 701, 702); attorney fee testimony irrelevant and should have been excluded as gatekeeper function (Enbridge Pipelines). |
| 512 | 66 66 | XIV. Factual insufficiency — Q7(2) and Q7(3) | Q7(2): Jury awarded $250,000 for fair market value but Pohl presented no market value evidence — only intrinsic/actual value. Purchase price alone cannot establish market value (Pike v. Tex. EMC); one sale not sufficient (InterFirst Bank, Mo. K&T). Q7(3): Jury awarded $200,000 for development costs but Pohl presented no evidence for jury to make reasonable inference about Kassab's avoided costs (Szczepanik, Pike, Sw. Energy). |
| 513 | 66 66 | XV. Property owner rule error | Court erroneously allowed Pohl to testify on trade secret value under property owner rule (Tex. R. Evid. 701). Rule does not extend to technical/specialized matters (Jatex Oil v. Nadel). Trade secret valuation is specialized (Arkoma Basin). Pohl only designated to opine on 'reasonable value at time of conversion/misappropriation' — intrinsic value, not market value. Pohl's deposition: claimed 'intrinsic value of stolen property' worth $250,000 to $6 million. Property owner testimony must be market value, not intrinsic/speculative (Accurate Precision Plating). |
| 514 | 66 66 | XVI. Factual insufficiency — willful and malicious (Q8, Q17) | Insufficient evidence of clear and convincing evidence of malice. Must analyze malice evidence for each defendant separately (Horizon Health). Evidence of tort itself insufficient for malice finding (Safeshred). Kassab's only alleged malicious acts: filing grievance and copying news outlets/DA — but these were ethically obligated disclosures of criminal conduct. No evidence Kassab knew information belonged to Pohl (as opposed to Precision/clients). Uncontroverted evidence: information freely transferred to Favre, disclosed without confidentiality protections, Kassab believed information was in public domain. No injury independent of misappropriation itself (Eagle Oil). Legally justified conduct not probative of malice (Safeshred). |
| 515 | 66 66 | XVII. Factual insufficiency — $3M exemplary damages (Q19) | Non-unanimous Q17 and insufficient malice evidence make exemplary damages improper. TUTSA caps exemplary at twice actual loss (§ 134A.004) — if attorney fees excluded, maximum is $500,000. Exemplary damages factors all favor Kassab: economic harm only, questionable culpability (Kassab didn't know information belonged to Pohl), Kassab was promoting justice by exposing barratry, no net worth evidence presented. Award was against great weight of evidence, probably based on passion/prejudice. |
| 516 | 66 66 | XVIII. Conspiracy preemption (Q15) | TUTSA displaces conflicting tort remedies (§ 134A.007). Conspiracy claim based entirely on alleged misappropriation (Q15 references Q2). Under Reynolds v. Sanchez Oil and VEST Safety, claims primarily based on misappropriation are preempted. Error harmful because it allowed Pohl to conflate Kassab's conduct with co-conspirators, requiring jury to speculate on individual vs. indirect misappropriation. |
| 517 | 66 66 | XIX. Denial of responsible third party designations | Court abused discretion by denying designation of George W. Shepherd (Billy Shepherd), Donalda Pohl, Edgar Jaimes, Ken Talley, and Magdalena Santana as responsible third parties. Shepherd knew Walker/Seymour/Ladner sold Precision to Favre including alleged trade secrets, failed to protect Pohl by ensuring proprietary information was gathered/returned/destroyed in settlement. Donalda, Jaimes, Talley, Santana routinely placed Pohl's alleged trade secrets in public domain by circulating marketing lists and documents to third parties. Denial skews proceedings and compromises defense (Sanchez v. Castillo, In re YRC). |
| 518 | 66 66 | XX. Denial of motion to abate | Court erroneously denied motion to abate pending Cheatham v. Pohl (civil barratry litigation, 1st COA). Two reasons: (1) if Cheatham resulted in barratry judgment against Pohl, he could not argue all barratry claims were frivolous; (2) Pohl sought attorney fees in this case for defending Cheatham while it was still ongoing — if found liable for barratry, Pohl would owe fees to plaintiffs. Denial allowed Pohl to take positions that substantially altered trial. |
| 519 | 66 66 | XXI. Offensive use of privilege / withholding relevant information | Court erred by denying motion to compel under offensive use doctrine (Ginsberg v. Fifth Court of Appeals). Pohl cannot sue Kassab claiming theft of trade secrets while claiming privilege to deny access to discovery on limitations, illegality, ownership. Court should have found privilege waived between Pohl and Shepherd regarding when misappropriation discovered, secrecy efforts, and barratry. Pohl also cannot claim privilege for billing records while seeking attorney fee damages (In re Nat'l Lloyds, In re Beirne). Redacted invoices should have been excluded (Remington Arms). Error harmful — jury relied on redacted records for attorney fee award. |
| 520 | 66 66 | XXII. Dismissal of barratry counterclaims | Court erroneously granted Pohl's summary judgment on Kassab's counterclaims for civil barratry under Tex. Gov't Code § 82.0651. Four arguments refuted: (1) Res judicata inapplicable because facts and party relationships changed (Marino v. State Farm) — clients assigned barratry claims to Kassab for counterclaims, revived by § 16.069; (2) Limitations tolled under § 16.069 (same transaction, filed within 30 days of answer deadline); (3) Assignments valid — technical disciplinary rule non-compliance insufficient to void valid contracts; (4) Assignments not against public policy — barratry is not legal malpractice or DTPA claim (the only non-assignable claims). Error harmful — prevented Kassab from pursuing claims and presenting barratry evidence at trial. |
| 521 | 66 66 | XXIII. Insufficient evidence for attorney fees — conclusory testimony and redacted invoices | Zavitsanos' testimony conclusory under Rohrmoos and Arthur Andersen factors — insufficient on time/labor, novelty/difficulty, skill required, preclusion of other employment, customary fees, time limitations, professional relationship, experience/reputation/ability of individual billers. Invoices 'so heavily redacted, it is impossible to determine what tasks were performed' (THB Constr.). No segregation of recoverable from unrecoverable fees (Tony Gullo Motors) — award includes fees for conversion claim which is unrecoverable. Conditional appellate fees also insufficient — Zavitsanos not qualified on appellate fees, provided only conclusory amounts without testimony on specific services or hourly rates (Yowell, KBIDC, Jimmie Luecke). |
| 522 | 66 66 | Conclusion & Prayer | Asks Court to grant motion, vacate final judgment, and order new trial. |
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CREATE TABLE filing_sections (
section_id INTEGER PRIMARY KEY AUTOINCREMENT,
filing_id INTEGER REFERENCES filings(filing_id),
heading TEXT,
summary TEXT
);