filing_id,date,doc_type,party,description,doc_type_detail,procedural_posture,chain,outcome,phase,filename,relief_requested,full_text
61,2023-09-20,LTR,Kassab,Letter to judge re final judgment,"Kassab's letter brief to Judge Christine Weems responding to Pohl's Reply filed the night before the hearing on entry of final judgment, addressing new arguments on exemplary damages, attorneys' fees, TUTSA preemption of conspiracy, and Precision's exoneration","Post-hearing letter brief filed September 20, 2023 in the 281st Judicial District Court, Harris County, Cause No. 2018-58419. Addressed to Judge Christine Weems. Pohl's Reply was filed well after working hours the evening of September 18, 2023 — the night before the September 19, 2023 hearing on entry of final judgment. This letter responds to new arguments and authorities raised in that Reply. Written by Kevin Dubose (Alexander Dubose & Jefferson LLP, Board Certified Civil Appellate Law).",JDGMT-1,N/A,Phase 5,2023-09-20_LTR_Kassab-Letter-to-Judge-re-Final-Judgment_FILED.pdf,That the Court refrain from signing Pohl's proposed final judgment and sustain Kassab's objections,"9/20/2023 3:18 PM
Kevin Dubose Marilyn Burgess - D18is4tr4ic Ht aCrlvearkr dH Satrrreise Ct ounty
kdubose@ adjtlaw.com Houston, TEenxvaes lo7p7e0 0N8o-.4 7394726 5300
By: Bonnie Lugo
(713) 523-0667 www.adjtlaw.com
Filed: 9/20/2023 3:18 PM
Board Certified Civil
Appellate Law
September 20, 2023
The Honorable Christine Weems
Judge 281st District Court
201 Caroline, 14th Floor
Houston, Texas 77002
Re: Cause No. 2018-58419; Michael A. Pohl, and Law Otffice of Michael A.
Pohl, PLLC v. Lance Christopher Kassab and Lanrcie Christopher Kassab,
P.C. D/B/A The Kassab Law Firm s
Dear Judge Weems: s
Pohl’s response to Kassab’s objections to the gproposed judgment were filed well
after working hours the night before the hearing orn entry of judgment. Because that
response raised some new arguments and authoriBties that Kassab has not had a chance to
address, we file the following letter brief to addnress some of those new matters.
A. Exemplary damages are not rercoverable because Question 17 was not
answered unanimously. M
Pohl relies on several cases noot previously addressed, and all are distinguishable for
important reasons. e
• Bruce v. Oscar Renda Cofntracting, 657 S.W.3d 453, 464 (Tex. App.—El Paso 2022, pet.
filed). In Bruce there was no Additional Certificate in which the jury was instructed to
certify whether certain jury questions were unanimous. Id. at 463. In the present case, there
was an Additionaol Certificate in which the jury failed to certify that Question 17 was
unanimous. C
• Stover v. ADM Milling Co., No. 05-17-00778-CV, 2018 Tex. App. LEXIS 10883 (Tex.
App.—Dallas Dec. 28, 2018, pet. denied) (mem. op.). In Stover there was an Additional
Certificfate, and the jury certified that the predicate question for exemplary damages
(Qunestions 15 and 16 on fraud and malice) were answered unanimously. Id. at *12. In the
prUesent case, the equivalent predicate question (Question 17 on willful and malicious
misappropriation) was not certified as unanimous.
• Bryan v. Papalia, 542 S.W.3d 676, 692–93 (Tex. App.—Houston [14th Dist.] 2017, rev.
granted, judgm’t vacated w.r.m.). In Bryan the trial court noticed an ambiguity between
the requirement that two questions be answered unanimously and the Verdict Certificate
generally stating that only ten jurors had agreed to all of the questions. It appears from the
opinion that the judge noticed this ambiguity, discussed the situation with the lawyers, and
September 20, 2023
Page 2
decided to instruct the jurors to return to the jury room and deliberate further. But there is
nothing in the opinion suggesting that the party who did not have the burden of obtaining
a unanimous verdict to obtain exemplary damages was required to object or ask that the
jury be sent back to deliberate further in order to preserve error.
The case most analogous to the present case is Redwine v. Peckinpaeugh, 535 S.W.3d
44 (Tex. App.—Tyler 2017, no pet.). Pohl erroneously attempts to dCistinguish Redwine
because it “dealt with a single cause of action giving rise to liability, [so] the certification
of non-unanimity was in conflict with an award of exemplary damages.”1 But the same is
true in this case, where the jury was asked to answer questions relatting to the single TUTSA
cause of action. Just like in Redwine, the jury’s failure to certifyi that the predicate question
of liability (Question 17) was unanimous bars the recovery of exemplary damages.
Pohl also suggests it was Kassab’s burden to eraise the issue.2 But as noted in
Redwine, “this situation does not amount to a conflicting jury finding, where a party must
object before the jury is discharged to preserve error.” Id. at 52. Rather, that burden was on
Pohl as the party with the burden of proof seeking exemplary damages. See United
Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 481 (Tex. 2017) (“A defendant has no
obligation to complain about a plaintiff's omi lission of an independent theory of recovery;
rather, the burden to secure proper findinags to support that theory of recovery is on the
plaintiff, and a plaintiff who fails to satisfy that burden waives that claim.”). See also TEX.
CIV. PRAC. & REM. CODE § 41.003(b
) f(""The claimant must prove by clear and convincing
evidence the elements of exemplary damages . . . . This burden of proof may not be
shifted to the defendant . . . ."" c(emphasis added)). Kassab was not required “to ask the
trial court to fix an error that wfould, as here, ultimately result in a judgment in its favor.”
Id. at 481.
B. Attorney’s fees in other litigation are not recoverable as actual
damagCes under TUTSA.
Pohl argues that attorney’s fees incurred in satellite litigation are recoverable “actual
losses” under TUTSA because the statute permits a “flexible and imaginative approach” to
damages.3 Buft when the Court asked Pohl if any court in any jurisdiction had ever been
flexible annd imaginative enough to award attorney’s fees in other litigation as actual
damages for a trade secret claim, the silence was telling, and should resolve this issue.
1 Reply, at 6.
2 Reply, at 7.
3 Reply, at 9.
September 20, 2023
Page 3
Pohl cites two out-of-state cases to argue that actual damages under TUTSA is not
limited to things like loss of profits, lost customers or lost market share.4 But both of those
cases authorize recovery of lost profits, fees, or commissions. See Dunsmore & Assocs. v.
D'Alessio, 409906, 2000 Conn. Super. LEXIS 114, at *36 (Super. Ct. 2000) (“the issue is
whether the defendant used the plaintiff's documents to make candidate placements that
resulted in the defendant's receipt of fees or commissions.”); World Wide Prosthetic Supply
v. Mikulsky, 640 N.W.2d 764, 770 (Wis. 2002) (concluding “actual loss” “may include lost
profits resulting from [competitor’s] manufacture and distribution otf a defective product
incorporating [plaintiff’s] trade secret”). i
Pohl argues that Texas permits the recovery of attorDney’s fees incurred in other
litigation as actual damages, relying on Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l
Dev. & Research Corp., 299 S.W.3d 106 (Tex. 2009).5 Tshat case concluded “the general
rule as to recovery of attorney's fees from an adversge party in litigation does not bar a
malpractice plaintiff from claiming damages in a mralpractice case for fees it paid its
attorneys in the underlying suit.” Id. at 119. But PBohl is not a “malpractice plaintiff,” and
is not seeking fees paid to remedy malpractice committed by Kassab in an underlying suit.
Rather, Pohl is suing Kassab to recover attorneyy’s fees that Pohl incurred defending against
barratry claims and grievances brought br iy Pohl’s former clients, who initiated the
proceedings after Kassab alerted them to Pohl’s barratry. The “malpractice plaintiff”
exception stated in Akin does not apply.
Pohl also seeks an equitablee remedy based on the tort-of-another doctrine, which
Kassab has previously briefed. Pohl does not deny that the jury found in Question 3 that
Pohl’s wrongful conduct contrfibuted to the injury. Pohl points to Question 4, in which the
jury failed to assign any percentage of responsibility to Pohl. But the issue here is not
related to causation of damages in this case. The point is simply that one without clean
hands cannot obtain ano equitable remedy, and one found to have engaged in “wrongful
conduct” does not have clean hands. See Frazier v. Havens, 102 S.W.3d 406, 414 (Tex.
App.—Houston [14lth Dist.] 2003, no pet.) (“one who seeks an equitable remedy must do
equity and comei to court with clean hands.”) Pohl cannot claim the equitable tort-of-
another exceptfiion.
4 Reply, at 10.
5 Reply, at 9.
September 20, 2023
Page 4
C. Conspiracy is preempted by TUTSA.
Pohl asserts that no Texas case law supports the proposition that conspiracy is
preempted by TUTSA. Yet the First Court of Appeals recently considered this issue and
found that TUTSA preempts a similar theory of joint liability.
In Reynolds v. Sanchez Oil & Gas Corp., No. 01-18-00940-CV, 2023 Tex. App.
LEXIS 3067 (Tex. App.—Houston [1st Dist.] May 9, 2023, no pet. th.), the plaintiff sued
for misappropriation of trade secrets and aiding and abetting breacih of fiduciary duty. Id.
at *7-8. The court of appeals concluded that the aiding and abestting claim was “primarily
based on the individual appellants’ misappropriation of tradDe secrets” and “provide[ed]
remedies for the underlying misconduct of misappropriation of trade secrets.” Id. at 47.
“Under the plain language of TUTSA, these claims csonflict with civil remedies for
misappropriation of a trade secret.” Id. Therefore, “TUgTSA preempts these claims to the
extent they are based on appellants' alleged misapprorpriation of trade secrets.” Id. at *48.
Pohl’s conspiracy claim, like the aiding and abetting claim in Reynolds, is based
entirely on Kassab’s alleged misappropriatioyn of trade secrets. The conspiracy question
asked, “[r]egarding the conduct you found inr ianswer to Question No. 2 [which asked “[d]id
any of the parties listed below misappropriate Pohl’s trade secret?”], was Kassab part of a
conspiracy that damaged Pohl with any of those named below?”6 Because Pohl’s
conspiracy claim is based on alleged omisappropriation of trade secrets, it is preempted. See
Reynolds, 2023 Tex. App. LEXIS e3067, at *47-48.
D. The jury’s findifng of no liability on Precision means no liability
on Kassab.
Pohl contends thoat Kassab waived his right to object to any alleged inconsistency in
the jury’s finding t C hat Precision was not liable for misappropriation.7 But as Pohl
acknowledges, “thelre is nothing inconsistent” about the jury’s findings.8 Rather, the issue
is whether Pohl cian legally recover against Kassab after the jury concluded that Precision,
and those assof iciated with Precision, did not misappropriate anything — meaning that
Precision eitoher owed no duty to Pohl or it breached no duty to Pohl when it provided Pohl's
alleged information to Kassab. If there was no misappropriation when the information
passed from Pohl to precision, then no one else downstream in the chain of possession
could have misappropriated the information from Pohl. Thus, the jury’s exoneration of
6 Motion, at Exhibit A, Question No. 15.
7 Reply, at 15.
8 Reply, at 16.
September 20, 2023
Page 5
Precision precludes liability against Kassab as a matter of law. Kassab was not required to
object and have the jury reconsider the issue to potentially “forfeit a winning hand.” Levine,
537 S.W.3d at 481 (a plaintiff has the burden to secure proper findings to support its theory
of recovery, not the defendant).
Respectfully submitted,
/s/Kevin Dubose t
Kevin Dubose i
kdubose@adjtlaw.scom
State Bar No. 06D150500
1844 Harvards Street
Houston, Texas 77008
Telephonge: (713) 523-2358
Facsimilre: (713) 522-4553
Mnurray Fogler
Sytate Bar No. 07207300
rmfogler@foglerbrar.com
MFOGLER BRAR O’NEIL & GRAY LLP
909 Fannin, Suite 1640
o Houston, Texas 77002
e Telephone: (713) 481-1010
Facsimile: (713) 574-3224
Lance Kassab
State Bar No. 00794070
o David Kassab
State Bar No. 24071351
l THE KASSAB LAW FIRM
i 1214 Elgin Street
f i Houston, Texas 77004
o Telephone: (713) 522-7400
eserve@kassab.law
Attorneys for Kassab Defendants
September 20, 2023
Page 6
CERTIFICATE OF SERVICE
On September 20, 2023, I electronically filed this Reply to Pohl’s Response to
Objections to Judgment Letter Brief with the Clerk of Court using the eFile.TXCourts.gov
electronic filing system which will send notification of such filing to the following:
Jean C. Frizzell
jfrizzell@reynoldsfrizzell.com
REYNOLDS FRIZZELL LLP r i
1100 Louisiana St., Suite 3500 s
Houston, Texas 77002 D
/s/Kevin Dubose
Kevin gDubose
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
David Kassab
Bar No. 24071351
david@kassab.law r
Envelope ID: 79765300
Filing Code Description: No Fee Documents
Filing Description: 9.20.2023-Ltr to Judge Weems in Responste to
Objections to Judgment Letter Brief i
Status as of 9/20/2023 3:59 PM CST s
Case Contacts 
Name BarNumber Email g TimestampSubmitted Status
Todd Taylor ttaylor@jandflaw.com 9/20/2023 3:18:40 PM SENT
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 9/20/2023 3:18:40 PM SENT
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 9/20/2023 3:18:40 PM SENT
Harris Wells hwaells@reynoldsfrizzell.com 9/20/2023 3:18:40 PM SENT
Todd Taylor ttaylor@jandflaw.com 9/20/2023 3:18:40 PM SENT
Scott M.Favre scott@favrepa.com 9/20/2023 3:18:40 PM SENT
Lawyer Wade c lawyerwade@hotmail.com 9/20/2023 3:18:40 PM SENT
Chris C.Pappas f cpappas@krcl.com 9/20/2023 3:18:40 PM SENT
Non-Party Witness Billy Shepherd  bshepherd@spcounsel.com 9/20/2023 3:18:40 PM SENT
Non-Party Dona Pohl DonaLyann@yahoo.com 9/20/2023 3:18:40 PM SENT
Non-Party Edgar Jaimes C edgarsroom@gmail.com 9/20/2023 3:18:40 PM SENT
Kevin Dubose a 6150500 kdubose@adjtlaw.com 9/20/2023 3:18:40 PM SENT
Marisa Barrera Cruz Hurd 24041157 mhurd@adjtlaw.com 9/20/2023 3:18:40 PM SENT
Lance Kassab o lance@kassab.law 9/20/2023 3:18:40 PM SENT
David KassabU david@kassab.law 9/20/2023 3:18:40 PM SENT
Nicholas Pierce nicholas@kassab.law 9/20/2023 3:18:40 PM SENT
Lance Kassab eserve@kassab.law 9/20/2023 3:18:40 PM SENT
Andrea Mendez andrea@kassab.law 9/20/2023 3:18:40 PM SENT
Murray JFogler mfogler@foglerbrar.com 9/20/2023 3:18:40 PM SENT
Murray Fogler mfogler@fbfog.com 9/20/2023 3:18:40 PM SENT
Andrew Johnson ajohnson@thompsoncoe.com 9/20/2023 3:18:40 PM SENT
Benjamin Ritz britz@thompsoncoe.com 9/20/2023 3:18:40 PM SENT
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
David Kassab
Bar No. 24071351
david@kassab.law r
Envelope ID: 79765300
Filing Code Description: No Fee Documents
Filing Description: 9.20.2023-Ltr to Judge Weems in Responste to
Objections to Judgment Letter Brief i
Status as of 9/20/2023 3:59 PM CST s
Case Contacts 
Dale Jefferson 10607900 jefferson@mdjwlgaw.com 9/20/2023 3:18:40 PM SENT
Raul Herman Suazo 24003021 suazo@mdjwlaw.com 9/20/2023 3:18:40 PM SENT
Kevin Graham Cain 24012371 cain@mdjwlaw.com 9/20/2023 3:18:40 PM SENT
D Kassab david@kassab.law 9/20/2023 3:18:40 PM SENT
Murray J. Fogler 7207300 mfaogler@foglerbrar.com 9/20/2023 3:18:40 PM SENT
Thallia Malespin tmalespin@reynoldsfrizzell.com 9/20/2023 3:18:40 PM SENT
Misty Davis mdavis@reynoldsfrizzell.com 9/20/2023 3:18:40 PM SENT
Harris Wells c hwells@reynoldsfrizzell.com 9/20/2023 3:18:40 PM SENT
L Kassab f lance@kassab.law 9/20/2023 3:18:40 PM SENT
Kelly Skelton  reception@kassab.law 9/20/2023 3:18:40 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 9/20/2023 3:18:40 PM SENT
Harris Wells C hwells@reynoldsfrizzell.com 9/20/2023 3:18:40 PM SENT
Harris Wells a hwells@reynoldsfrizzell.com 9/20/2023 3:18:40 PM SENT"