filing_id,date,doc_type,party,description,doc_type_detail,procedural_posture,chain,outcome,phase,filename,relief_requested,full_text
65,2024-01-19,MJNOV,Kassab,Mtn for JNOV and Disregard Jury Findings,"Kassab Defendants' Motion for Judgment Notwithstanding the Verdict and to Disregard Jury Findings, asserting 10 grounds for JNOV (no trade secret, no misappropriation evidence, limitations, unlawful acts doctrine, privilege to disclose, grievance immunity, judicial proceedings privilege, attorney immunity, unrecoverable damages, no causation), plus arguments that conspiracy is preempted by TUTSA and exemplary damages are improper due to non-unanimous Q17 finding","Post-judgment motion filed January 19, 2024, 28 days after entry of the Final Judgment on December 22, 2023. Kassab seeks JNOV on all claims or alternatively on exemplary damages and conspiracy claim. Filed simultaneously with Motion for New Trial.",POST-1,N/A,Phase 5,2024-01-19_MJNOV_Kassab-Mtn-for-JNOV-and-Disregard-Jury-Findings_FILED.pdf,"Judgment notwithstanding the verdict in favor of Kassab on all claims (take-nothing judgment), or alternatively: (1) JNOV on exemplary damages due to non-unanimous Q17 finding; (2) JNOV on conspiracy claim as preempted by TUTSA, eliminating joint and several liability; (3) disregard of jury findings","1/19/2024 3:31 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 83597613
By: Rhonda Momon
Filed: 1/19/2024 3:31 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et al. § IN THE DISTRICT COURT
V. § OF HARRIS COUNTY, TEXAS
SCOTT FAVRE, et al. § 281st JUDICIALk DISTRICT
THE KASSAB DEFENDANTS’ MOTION FOR JUDGMCENT NOT
WITHSTANDING THE VERDICT AND TO DISREGARD JURY FINDINGS
Defendants, Lance Christopher Kassab and Lance Chtristopher Kassab, P.C.
d/b/a The Kassab Law Firm (“Kassab”), files this Motion for Judgment
Notwithstanding the Verdict and to Disregard Jurey Findings and would show as
follows. u
SUMMARY
Pohl’s claims against Kassab are abarred as a matter of law. Therefor the Court
should disregard the findings of the jury and enter a judgment notwithstanding the
verdict in favor of Kassab for aney one of the following reasons:
1. Pohl’s claims are ba
rrfed as a matter of law because the information at
issue is not a trade secret:
• not Pohl’s trade secret because he does not own the information at
issue; l
• not Piohl’s (or anyone’s) trade secret because the information at issue
dooes not have any independent economic value from not being
generally known;
• not Pohl’s (or anyone’s) trade secret because he made no reasonable
measures to keep the subject information secret.
2. Pohl’s claims fail as a matter of law because there is no evidence that
Kassab engaged in regular or willful misappropriation; specifically,
there is no evidence that Kassab knew the information was Pohl’s trade
secret or had been acquired by improper means. The jury’s finding that
those associated with Precision, did not misappropriate anything
precludes liability against Kassab. k
3. Pohl’s claims are barred by limitations because they accruedC, if at all, in
the summer of 2014 when Precision engaged in the first acts of alleged
misappropriation, or at the latest in the spring ofi 2015, when both
Precision and Favre engaged in additional acts of alleged
misappropriation.
4. Pohl’s claims are barred by the unlawful acts doctrine because Pohl’s
acts are inexorably intertwined withl his crimes.
5. Pohl’s claims are barred becauMse Kassab had the privilege to use the
client-related information to disclose to those clients1 that Pohl had
committed unlawful actiivities.
6. Pohl’s claims are barred as a matter of law to the extent they are
predicated on oKassab’s filing of a grievance against Pohl for which
Kassab has labsolute and unqualified immunity.
7. Pohl’s cilaims are barred by the judicial proceedings privilege because
they arise out of communications that Kassab made to prospective
clients (solicitation letters), and to actual judicial proceedings (the
barratry litigation and grievance process).
1 We will use “clients” to refer to actual, potential or rejected clients.
8. Pohl’s claims are barred by attorney immunity because an attorney
cannot recover against another attorney for conduct the second attorney
engaged in as part of the discharge of his duties as a lawyer representing
clients. k
9. Pohl’s claims fail because his purported damages are unrecCoverable as
a matter of law, or because Pohl presented no evidence to support any
actual losses. i
10. Pohl’s claims fail for lack of causation because Pohl’s barratry was the
sole cause of his damages;, Kassab conduct did not cause damages to
Pohl.
Even if the Court does enter judgment in flavor of Kassab on the preceding grounds,
it should at least enter judgment notMwithstanding the verdict in favor of Kassab on
exemplary damages because predicate findings for exemplary damages were not
answered by the jury unanimiously and on Pohl’s conspiracy claim because it is
preempted by TUTSA.2
o ARGUMENT
A trial courtl may disregard a jury's findings and grant a motion for judgment
notwithstandinig the verdict (JNOV) when a directed verdict would have been proper.
See TEX. R. CIV. P. 301; Prudential Ins. Co. v. Fin. Review Servs., Inc., 29 S.W.3d 74,
77 (Tex. 2000). “A JNOV should be granted when the evidence is conclusive and one
party is entitled to recover as a matter of law or when a legal principle precludes
2 Texas Uniform Trade Secrets Act.
recovery.” B&W Supply, Inc. v. Beckman, 305 S.W.3d 10, 15 (Tex. App.—Houston [1st
Dist.] 2009, pet. denied); United Parcel Serv., Inc. v. Tasdemiroglu, 25 S.W.3d 914,
916 n.4 (Tex. App. – Houston [14th Dist.] 2000, pet. denied) (“A court should grant a
motion for judgment notwithstanding the verdict if a legal principle prekvents a party
from prevailing on its claim.”). For the reasons enumerated belowC, the Court should
enter judgment notwithstanding the verdict because Pohl’s claims against Kassab
fail as a matter of law. i
I. Pohl’s claims against Kassab are barred as a matter of law
because the information at issue eis not a trade secret
owned by Pohl.
“To bring a successful TUTSA claim, the claimant must first show that it owns
a trade secret in the information it sleeks to protect.” Title Source, Inc. v.
HouseCanary, Inc., 612 S.W.3d 517, 5M27 (Tex. App.—San Antonio 2020, pet. denied);
TEX. CIV. PRAC. & REM. CODE § 134A.002(3-a), (6) (requiring claimant to be a “owner”
of the trade secret informaition at issue). The information must also derive
independent economic value from not being generally known to, and not being readily
ascertainable througho proper means by, another person who can obtain economic
value from the d
islclosure or use of the information. TEX. CIV. PRAC. & REM. CODE §
134A.002(6). Aind it is axiomatic that “the subject matter of a trade secret must be
secret.” J.C. Kinley Co. v. Haynie Wire Line Serv., Inc., 705 S.W.2d 193, 198 (Tex.
App.—Houston [1st Dist.] 1985, writ ref'd n.r.e.); TEX. CIV. PRAC. & REM. CODE §
134A.002(6) (defining “trade secret” to mean certain types of information in which
the owner “has taken reasonable measures under the circumstances to keep the
information secret”). The information at issue here is not Pohl’s trade secret as a
matter of law because Pohl is not the owner of the information, the information does
not derive independent economic value to Pohl from not being generally known, and
the information is not secret, nor did Pohl take reasonable measurkes under the
circumstances to keep the information secret. C
Pohl is not the owner of the attorney-client contracts between him and his
clients. Rather, attorney-client contracts are part of the cliient’s file which is owned
by the client, not the lawyer. See In re George, 28 S.W.3d 511, 516 (Tex. 2000) (“The
attorney is the agent of the client, and the work product generated by the attorney in
representing the client belongs to the client.”) (emphasis added); In re McCann,
422 S.W.3d 701, 704-705 (Tex. Crim. Alpp. 2013) (“[T]he Texas Supreme Court
recognized explicitly that an attorneyM is an agent of his client and implicitly that a
client owns the contents of his or her file.”). The fact that Pohl can assert a lien
over the client file does not miean he is the rightful, legal, or equitable owner of the
contracts. See In re McCann, 422 S.W.3d 701, 706 (Tex. Crim. App. 2013) (noting that
“a lien, by its definitioon, is a transitory interest in someone else's property and,
therefore, the attolrney asserting such a lien never owns the property at issue, the
client owns thei file by implication (if the attorney does not)”) (emphasis added). Pohl,
as an agent, cannot claim trade secret protection in property belonging to his clients,
the principals. See RMS Software Dev. v. LCS, Inc., No. 01-96-00824-CV, 1998 Tex.
App. LEXIS 1053, at *11 (Tex. App.—Houston [1st Dist.] Feb. 19, 1998, no pet.)
(unpublished) (“RMS is not the owner of the trade secret involved in this lawsuit,
thus it has no standing to sue for misappropriation of that secret.”).
Moreover, the information is not a trade secret because Pohl offered no
evidence at trial that the attorney-client contracts or list of actual, kpotential, or
rejected clients “derives independent economic value, actual or pCotential, from not
being generally known to, and not being readily ascertainable through proper means
by, another person who can obtain economic value from thie disclosure or use of the
information.” TEX. CIV. PRAC. & REM. CODE § 134A.0
02(6)(B). To meet his burden,
Pohl was required to prove that the contracts or compilation of client contact
information provided him with a “competitive advantage.” Fmc Techs. v. Murphy, No.
01-21-00455-CV, 2023 Tex. App. LEXIS 59l84, at *62 (Tex. App.—Houston [1st Dist.]
Aug. 10, 2023, pet. filed) (mem. op.). PMohl failed to plead and present any evidence to
demonstrate how the information at issue provided him with a competitive
advantage.3 i
The information at issue has no demonstrated independent value to Pohl
because, regardless ofo its disclosure, Pohl can still use the client-related information.
Pohl’s only intereslt was to keep the identities of individuals whom Pohl unlawfully
3 Nor could nhe because as a matter of law, Pohl cannot have a “competitive advantage” by using the
client-relaUted information to the exclusion of the potential, actual and rejected clients. See ERI
Consulting Eng'rs, Inc. v. Swinnea, 318 S.W.3d 867, 872 (Tex. 2010) (“if the fiduciary … acquires any
interest adverse to his principal, without a full disclosure, it is a betrayal of his trust and a breach of
confidence, and he must account to his principal for all he has received.”); TEX. R. PROF’L COND.
1.05(b)(4) (lawyer may not use confidential information of a former client to the client’s disadvantage
or use “privileged information of a client for the advantage of the lawyer or of a third person, unless
the client consents after consultation.”); id. at 1.08(f) (generally prohibiting a lawyer from “acquir[ing]
a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for
a client”).
solicited from being disclosed to lawyers like Kassab who could inform those
individuals about Pohl’s unlawful solicitation. That interest is not only against public
policy that favors disclosure of criminal conduct,4 but it is insufficient to qualify as
independent economic value under TUTSA. “Without more, … a comkbination [of
information] does not qualify as a trade secret; it must also provCide ‘a competitive
advantage.’” Fmc Techs., 2023 Tex. App. LEXIS 5984, at *62. Pohl presented no
evidence at trial that the information at issue provided ihim with a competitive
advantage.
Moreover, there is no evidence that Pohl took “reasonable measures under the
circumstances to keep the information secret.” TEX. CIV. PRAC. & REM. CODE §
134A.002(6). The contracts that Pohl had wlith his actual, potential or rejected clients
are not secret; they are not even conMfidential or privileged as a matter of law. See
Landry v. Burge, No. 05-99-01217-CV, 2000 Tex. App. LEXIS 6606, at *18 (Tex.
App.—Dallas Oct. 2, 2000, no piet.) (mem. op.) (recognizing “the general rule that
a client's identity is not privileged” or considered “confidential
information” undero the disciplinary rules); Borden, Inc. v. Valdez, 773 S.W.2d
718, 720-21 (Tex. lApp.—Corpus Christi 1989, no writ) (noting that “the terms and
4 “[P]ublic pnolicy strongly favors exposure of crime.” Wal-Mart Stores, Inc. v. Medina, 814 S.W.2d 71,
73 (Tex. AUpp.—Corpus Christi 1991, writ denied). Kassab had an ethical obligation to notify the State
Bar and the affected individuals of Pohl’s misconduct under the rules of ethics and as an officer of the
court. See Tex. Disc. R. Prof’l Cond. 8.03(a) (“a lawyer having knowledge that another lawyer has
committed a violation of applicable rules of professional conduct that raises a substantial question as
to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the
appropriate disciplinary authority.”); id. at Cmt. 1 (“Reporting a violation is especially important
where the victim is unlikely to discover the offense.”). Kassab was doing what Pohl should have done,
disclosing misconduct to the individuals. See Cluck v. Mecom, 401 S.W.3d 110, 114 (Tex. App.—
Houston [14th Dist.] 2011, pet. denied) (“A fiduciary has an affirmative duty to make a full and
accurate confession of all his fiduciary activities, transactions, profits, and mistakes.”).
conditions of an attorney's employment and the purpose for which an attorney has
been engaged” are considered “nonconfidential matters”); Jim Walter Homes, Inc. v.
Foster, 593 S.W.2d 749, 752 (Tex. Civ. App.—Eastland 1979, no writ) (“The general
rule appears to be that the fee arrangement is not privileged.”); see aklso Jordan v.
Sony BMG Music Entm't, Inc., No. H-06-1673, 2008 U.S. Dist. LECXIS 47415, at *5
(S.D. Tex. 2008) (recognizing that a attorney-client contract “is not privileged.”);
Early, Ludwick & Sweeney, LLC v. Steele, 1998 Conn. Siuper. LEXIS 2256, at *6
(Super. Ct. 1998) (concluding list of client contact information was not a trade secret
owned by a law firm because the clients’ identities were “known to the defendants in
their respective lawsuits.”).
But even if the contracts or lists arel confidential, “confidential information is
not necessarily a trade secret.” ReynMolds v. Sanchez Oil & Gas Corp., No. 01-18-
00940-CV, 2023 Tex. App. LEXIS 8903, at *49 (Tex. App.—Houston [1st Dist.] Nov.
30, 2023, no pet. h.) (mem. op.i on rehearing); Early, Ludwick & Sweeney, LLC, 1998
Conn. Super. LEXIS 2256, at *7 (“The efforts made by [the law firm] to maintain
secrecy of the alleged otrade secrets appear to be no more than the usual precautions
taken by a law firlm to ensure clients' files remain confidential. Not all confidential
information mieets the definition of trade secret.”). Pohl alleged that he “made clear
to Precision and its representatives the confidential and nature of the above listed
information” and that “Precision and its representatives expressed their
understanding of the confidential and proprietary nature of the information and that
the information belonged to Pohl.”5 Pohl did not plead that he told Precision that the
information was his trade secrets.
Moreover, Pohl presented no evidence that the information was not generally
known, or was not readily ascertainable through proper means. The idekntity of Pohl’s
clients was even known to third parties, like the defendants in thCe underlying cases
and their lawyers. And the uncontroverted testimony at trial established that the list
of clients was created by Precision, not by Pohl, and was voluintarily produced to Scott
Favre, Tina Nicholson and several third parties6 in August 2016 as part of discovery
during the Mississippi litigation. Moreover, this information was produced to others
in discovery before the information was provided to Kassab – without a protective
order, confidentiality stamp, confidentialitly agreement, or anything else prohibiting
its disclosure. Furthermore, Pohl nevMer filed an injunction or any other document in
the Mississippi litigation to prevent disclosure of what he claims are his trade secrets.
Finally, the “Master List” of Piohl’s alleged clients has been available on PACER for
the last six years and is still there today.
Accordingly, anoy evidence that Pohl took reasonable measures under the
circumstances to kleep the information secret is “so weak as to do no more than create
a mere surmisie, [and is therefore] no more than a scintilla and, thus, no evidence.”
Beckman, 305 S.W.3d at 16; Sci. Mach. & Welding, Inc. v. Rose, No. 03-20-00564-CV,
5 Plaintiffs’ First Amended Petition, ¶ 25.
6 Those parties included, among others, Nathan Farmer, Charles Mikhail, Carl Hagwood, James
Welch, Scott Walker, Steve Seymour, Kirk Ladner, Ciyndi Rusnak, Marian Mchehee, Yousef
Nasrallah, Trevor Brock and Robin Gross.
2022 Tex. App. LEXIS 1884, at *6 (Tex. App.—Austin Mar. 23, 2022, no pet. h.) (mem.
op.) (trade secret status was waived because, “despite having the opportunity under
a protective order to designate the drawings as ‘confidential’ during this litigation,
[the party] failed to do so and produced them without such designationk.”); Baxter &
Assocs., L.L.C. v. D&D Elevators, Inc., No. 05-16-00330-CV, 2017C Tex. App. LEXIS
1352, at *28 (Tex. App.—Dallas Feb. 15, 2017, no pet.) (mem. op.) (information in
question was not the subject of any efforts to maintain its secirecy when “the ‘customer
lists’ in question are not labeled as confidential or proprietary”); Stemtech Int'l Inc. v.
Drapeau, No. 1:16-cv-918-RP, 2016 U.S. Dist. LEXIS 178591, at *35 (W.D. Tex. 2016)
(“public availability of [the information] makes them ineligible for trade secret
protection … when disclosure is made [andl] … the persons to whom the information
is disclosed are under no obligation toM keep it confidential.”).
Because Pohl is not the owner of a “trade secret” as a matter of law, the Court
should enter a JNOV in favori of Kassab. See Glob. Water Grp., Inc. v. Atchley, 244
S.W.3d 924, 931 (Tex. App.—Dallas 2008, pet. denied) (trial court did not err in
granting judgment onotwithstanding the verdict on a corporation's claims of
misappropriation olf trade secrets given that a trade secret was not shown).
II. Piohl’s claims fail as a matter of law because there is no
oevidence Kassab engaged in misappropriation, either
regular or willful.
Pohl alleged that Favre and Precision illegally misappropriated trade secrets
from him, and that Kassab subsequently committed indirect misappropriation by
10
acquiring illegally misappropriated trade secrets from Favre and Precision.7
Although Pohl originally sued Precision, he non-suited his claims against Precision.
Nevertheless, Precision was designated as a responsible third party, and defined in
the charge to include Precision’s former owners (Scott Walker, Steve kSeymour and
Kirk Ladner) prior to May 12, 2015, and Favre after May 12, 201C5.8 When the jury
was asked whether Precision misappropriated trade secrets from Pohl, it found that
Precision did not.9 In consistent fashion, the jury answereid “0” in Question 4 when
asked to assign what percentage of the “fault that caused the injury” was attributable
to Precision.10 These findings demonstrate that there is no evidence that Kassab
could have engaged in regular or willful misappropriation because he obtained the
information legally from parties who did nlot misappropriate it.
To be liable for misappropriatiMon based upon the acquisition of a trade secret,
Kassab must “know[] or ha[ve] reason to know that the trade secret was acquired by
improper means” or “derived firom or through a person who used improper means to
7 Plaintiff’s First Amendedp Petition, at ¶ 21 (“Favre and Precision illegally misappropriated
Pohl’s proprietary ando confidential information and property …which included information
about and/or communicCations with as many as 10,000 or more of Pohl’s clients/prospective clients.
Favre and Precision stole physical copies of certain of the information, stole Pohl’s computers,
and misappropriateda electronic data to which they had access through Precision’s work for Pohl.”)
(emphasis addedc); iid. at ¶ 40 (“Favre, Precision, and Nicholson willfully and maliciously
misappropriated iPohl’s trade secrets by acquiring them through improper means—specifically, by
theft.”); id. at o¶ 41 (“Favre, Precision, and Nicholson willfully and maliciously misappropriated Pohl’s
trade secretns by disclosing them via sale to Kassab and Montague (who purchased the trade
secret inUformation knowing that it had been stolen) without the express or complied consent of
Pohl.”) (emphasis added); id. at ¶ 42 (“All Defendants willfully and maliciously misappropriated Pohl’s
trade secrets by using them without the express or implied consent of Pohl.”).
8 See Verdict, at Definitions.
9 Verdict, Question 2(a)(3) and 2(b)(3).
10 Verdict, Question 4(3).
11
acquire the trade secret.” TEX. CIV. PRAC. & REM. CODE §§ 134A.002(3)(A), (B)(ii)(a).
But here, the jury determined that Precision did not engage in any
misappropriation.11 And, if Precision and its former owners did not engage in
misappropriation by wrongfully acquiring the information and thenk selling it to
Favre, then Favre could not have acquired the information by imCproper means. In
other words, the jury’s finding that Precision did not misappropriate anything —
meaning it either owed no duty to Pohl or breached no dutyi to Pohl when it provided
Pohl's alleged information to Favre and Kassab — precludes liability against Kassab
for indirect misappropriation.
Even if liability against Kassab is not precluded by the jury’s finding of no
liability on Precision, there is no evidence thlat Kassab knew the information had been
acquired by improper means. See TEX M. CIV. PRAC. & REM. CODE § 134A.002(3)(A). The
term “improper means” “includes bribery, misrepresentation, breach or inducement
of a breach of a duty to maintiain secrecy, to limit use, or to prohibit discovery of a
trade secret, or espionage through electronic or other means.” Id. at 134A.002(2). The
testimony was that Foavre purchased Precision, and that the principals of Precision
certified in purchalse documents that they owned the information at issue. Favre then
provided that iinformation to Kassab, after certifying to Kassab that the information
belonged to Precision and not to Pohl. Thus, there was no evidence that Kassab knew
or had reason to know that the information was a trade secret owned by Pohl as
opposed to information owned by Precision. Nor was there evidence to establish that
11 Verdict, Question 2(a)(3) and 2(b)(3).
12
the information was obtained by Favre or Precision through improper means. Nor
was there any evidence to establish that the contracts or any other information in a
client file is owned by anyone other than the client, if not owned by Precision.
III. Pohl’s claims are barred as a matter of law by limitkations
because they accrued, if at all, in the summer of 2e014 and
this suit was filed in 2018, more than three yearCs later.
“A person must bring suit for misappropriation of trade secrets not later than
three years after the misappropriation is discovered or by tihe exercise of reasonable
diligence should have been discovered.” TEX. CIV. PRAsC. & REM. CODE 16.010(a). “A
misappropriation of trade secrets that continues over time is a single cause of
action and the limitations period described by Subsection (a) begins running
without regard to whether the misaplpropriation is a single or continuing
act.” Id. at § 16.010(b) (emphasis addeMd). In other words, TUTSA “explicitly precludes
treating trade secret misappropriation as a continuing tort.” Gen. Universal Sys. v.
HAL Inc., 500 F.3d 444, 451 (5ith Cir. 2007).
“A cause of action for trade-secret misappropriation accrues when the trade
secret is actually usedo.” Sw. Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 721
(Tex. 2016). Pohl lalleged that Precision “stole physical copies of certain of the
information, sitole Pohl’s computers, and misappropriated electronic data to which
they had access through Precision’s work for Pohl” and then “secretly sold Pohl’s
stolen confidential information and property to Kassab and Montague.”12 The
evidence established that the alleged theft by Precision and its former owners,
12 Plaintiffs’ First Amended Petition, at ¶ 21.
13
Walker, Ladner and Seymore, occurred in June 2014 and Pohl knew that the files
and materials he claims are his trade secrets had been misappropriated on that date.
Precision and its former owners used the client-related information in the Mississippi
litigation to file claims against Pohl. See id. (“Use of the trade skecret means
commercial use by which the offending party seeks to profit froCm the use of the
secret.”). That alleged act of misappropriation, which occurred in June 2014, is when
the cause of action accrued for purposes of the statute of l
imiitations. TEX. CIV. PRAC.
& REM. CODE 16.010(b); Sw. Energy, 491 S.W.3d at 72
1.
Even if the cause of action had not accrued in 2014, it unquestionably accrued
when Precision’s former owners profited from the alleged trade secret information by
selling Precision and its files, including thel alleged trade secret information, to Favre
in May 2015. See Sw. Energy, 491 MS.W.3d at 722 (defining “use” to mean “any
exploitation of the trade secret that is likely to result in injury to the trade secret
owner or enrichment to the [nion-trade secret owner]”) (emphasis added). Thus, Pohl
was required to file his cla
ims against Kassab before May 2018, at the latest. See TEX.
CIV. PRAC. & REM. COoDE 16.010(a).
Although Plohl consulted with an attorney about pursuing claims against
Kassab in Junie 2017,13 Pohl did not file this lawsuit until August 2018, alleging
Kassab, Favre and Precision “engaged in a scheme pursuant to which they illegally
obtained, maintained, and used trade secrets and other confidential information and
13 See Plaintiffs’ Trial Exhibit 124 at November 13, 2017 Invoice.
14
property belonging to Pohl.”14 This was more than three years after Precision’s
owners sold Pohl’s purported trade secrets to Favre in May 2015.
Pohl alleges that his claim against Kassab did not accrue until November 2016,
when Favre entered into an expert retainer agreement with Kassabk which Pohl
characterizes as an agreement to purchase the purported tradeC secrets. But the
transfer or use of already-misappropriated trade secrets by a purported co-
conspirator does not re-start the limitations clock. See TEDXi. CIV. PRAC. & REM. CODE
16.010(a); Agar Corp., Inc. v. Electro Circuits Int'l, LLC, 580 S.W.3d 136, 145 (Tex.
2019) (rejecting the “last-overt-act accrual rule” and concluding that conspiracy claim
for misappropriation of trade secrets accrues against all co-conspirators “when the
underlying tort accrues.”) (citing with applroval Harang v. Aetna Life Ins. Co., 400
S.W.2d 810, 813 (Tex. Civ. App.—MHouston 1966, writ ref'd n.r.e.) (concluding
limitations runs from when the injury occurs and therefore conspiracy claim against
the late-added co-conspiratoris was time-barred)). In other words, “[a] conspiracy
claim based on an earlier underlying tort does not re-accrue when the co-conspirators
agree to commit a secoond tort or make another overt act.” Agar Corp., 580 S.W.3d at
145. Accordingly, Plohl’s claims against Kassab are barred by limitations. See id.
IV. Piohl’s claims are barred by the unlawful acts doctrine
obecause Pohl’s acts are inexorably intertwined with his
crimes.
The unlawful acts doctrine bars a plaintiff from recovery if, at the time of
injury, he was engaged in an unlawful act that was inextricably intertwined with the
14 Plaintiffs’ Original Petition, ¶ 2
15
claim and the alleged damages would not have occurred but for the illegal act. Dugger
v. Arredondo, 408 S.W.3d 825, 827-28 (Tex. 2013). Although Dugger concluded that
the unlawful acts doctrine has been preempted by the statutory proportionate
responsibility scheme in “personal injury and wrongful death cases,” ikd. at 833, the
doctrine remains viable in all other types of cases, including claimCs against lawyers.
For instance, “a plaintiff [is] precluded from recovering damages in the legal
malpractice context due to the plaintiff's underlying criminail conduct.” Id. (collecting
cases). In those cases, “a client's criminal conduct, as a matter of law, was the sole
proximate or producing cause of the client's conviction, and . . . . the client could not
bring a legal malpractice claim unless she had been exonerated from the criminal
conviction.” Id. (citing Peeler v. Hughes &l Luce, 909 S.W.2d 494 (Tex. 1995)). The
Court reasoned, “[b]ecause the clientM's conduct, and not the attorney's, is the sole
cause of any injury resulting from conviction, the plaintiff cannot satisfy the
causation element of a legal mialpractice claim absent exoneration.” Id.
The same reasoning applies here, where Pohl’s wrongful conduct is the sole
cause of his purportedo injuries. Question 3 asked whether “the wrongful conduct of
Pohl, if any, contrlibute to the injury, if any, found by the jury,” to which the jury
answered “yesi.” Because the jury concluded that Pohl’s wrongful conduct (illegal
barratry and unauthorized practice of law) “contributed to” Pohl’s injury (attorney’s
fees incurred defending the barratry litigation and grievances), Pohl cannot recover
anything from Kassab. See Dugger, 408 S.W.3d at 839 (“where it is shown that, at the
time of the injury, the plaintiff was engaged in the denounced or illegal act, the rule
16
is, if the illegal act contributed to the injury he can not recover”); Truyen Luong
v. McAllister, No. 01-17-00198-CV, 2018 WL 3651103, at *4 (Tex. App.—Houston [1st
Dist.] Aug. 2, 2018, pet. denied) (barring claims arising out of solicitation of BP clients
and unlawful fee-sharing arrangements); Denson v. Dallas Cnty. Credkit Union, 262
S.W.3d 846, 855 (Tex. App.—Dallas 2008, no pet.) (unlawful acCts doctrine barred
claims arising from illegal sale of automobiles); Sharpe v. Turley, 191 S.W.3d 362
(Tex. App.—Dallas 2006, pet. denied) (precluding plaintiiff from recovering from
attorney because plaintiff's conduct forming the basis of the underlying civil fraud
claim was unlawful); Farha v. Elam, 385 S.W.2d 692, 695 (Tex. Civ. App.—Fort
Worth 1964, writ ref’d n.r.e.) (denying recovery for claimant who practiced
architecture without a license and then suled his partner in the architectural firm).
Since the jury found that Pohl’s wrongMful conduct contributed to his injury, he cannot
recover.
V. Pohl’s claims arie barred because Kassab had the privilege
to use the pufrported trade secrets – the client-related
information – to disclose to those clients that Pohl had
committed unlawful activities.
The jury’s finding that Pohl engaged in wrongful conduct contributing to his
injury also suppiorts Kassab’s claims of privilege, which is found in the Texas Rules
of Evidenceo, the Defense of Trade Secrets Act, and the common-law.
The Texas rules of evidence provide that Kassab has a privilege to reveal even
trade secrets if “nondisclosure will tend to conceal fraud or otherwise work injustice.”
TEX. R. EVID. 507(a). Even if client-related information could be considered Pohl’s
trade secrets (and it cannot), the evidence established that Kassab used that
17
information to make disclosure to the clients, to the Texas courts through the
barratry litigation, and to the State Bar of Texas through the grievances, about Pohl’s
ongoing illegal barratry. Nondisclosure of Pohl’s illegal activity not only would have
worked an injustice to the clients, but also would have violated Kassab’ks professional
obligations to the public. See TEX. DISC. R. PROF’L COND. 8.03(a) C(“a lawyer having
knowledge that another lawyer has committed a violation of applicable rules of
professional conduct … shall inform the appropriate discipliinary authority.”).
Under the Defense of Trade Secrets Act, Kassab cannot be held civilly liable
under TUTSA for “the disclosure of a trade secret that is made (i) in confidence to a
Federal, State, or local government official, either directly or indirectly, or to an
attorney; and (ii) solely for the purpose of lreporting or investigating a suspected
violation of law; or is made in a comMplaint or other document filed in a lawsuit or
other proceeding, if such filing is made under seal.” 18 U.S.C. § 1833(b)(1)(A)-(B)
(emphasis added). i
Moreover, “trade secret law permits disclosures relevant to public health or
safety, commission ofo crime or tort, or other matters of substantial public concern.”
Bartnicki v. Vop a pler, 532 U.S. 514, 539 (2001); RESTATEMENT (THIRD) OF UNFAIR
COMPETITION
§i 40, cmt. c (1995) (“A privilege is likely to be recognized, for example,
in connection with the disclosure of information that is relevant to public health or
safety, or to the commission of a crime or tort, or to other matters of substantial public
concern.”); RESTATEMENT OF THE LAW, TORTS § 757, cmt. d (“A privilege to disclose
may also be given by the law, independently of the other's consent, in order to promote
18
some public interest.”); Alderson v. United States, 718 F. Supp. 2d 1186, 1200 (C.D.
Cal. 2010), aff'd, 686 F.3d 791 (9th Cir. 2012) (“[T]here simply cannot be any trade
secret about ongoing illegality.”); Sys. Operations, Inc. v. Sci. Games Dev. Corp., 425
F. Supp. 130, 136 (D.N.J. 1977) (“disclosure of trade secret informationk may itself be
privileged.”). C
Here, the evidence established that Kassab used the purported trade secret
information – the client’s identities and contact informiation – to report Pohl’s
misconduct to the State Bar of Texas and to inform those very individuals that Pohl
may have committed unlawful barratry. Kassab’s disclosure of the information to
Pohl’s former clients, the courts, and the State Bar falls within these privilege
doctrines. The jury’s finding that Pohl enlgaged in wrongful conduct demonstrates
that these doctrines should be appliedM to bar Pohl’s claims against Kassab.
VI. Pohl’s claims or damages are barred as a matter of law to
the extent they aere predicated on Kassab’s participation
in the attorneyi disciplinary system for which Kassab has
absolute and ufnqualified immunity.
Rule 17.09 of the Texas Rules of Disciplinary Procedure provides immunity to
persons filing grievance procedures: “No lawsuit may be instituted against any
Complainant or iwitness predicated upon the filing of a Grievance or participation in
the attorneoy disciplinary and disability system . . . . The immunity is absolute and
unqualified and extends to all actions at law or in equity.” TEX. R. DISC. P. 17.09
(emphasis added). Even “allegations of wrongdoing . . . in connection with [the]
prosecution of disciplinary actions” are absolutely immune, so long as they are
“predicated upon” participation in the attorney disciplinary system. Crampton v.
19
Farris, 596 S.W.3d 267, 274-75 (Tex. App.—Houston [1st Dist.] 2019, no pet.).
Pohl’s claims against Kassab are “predicated” upon Kassab’s filing of
grievances against Pohl or participation in the attorney disciplinary system. Pohl
alleged that Kassab used the attorney-client contracts and the list idenktifying Pohl’s
potential, actual and rejected clients to solicit them to file claiCms and grievance
“complaints” against Pohl.15 Pohl testified that Kassab used the purported trade
secret information to initiate grievances against Pohl, aind he asked the jury to
compensate him for the attorney’s fees he incurred defending against those
grievances.16 The jury found that the attorney’s fees incurred by Pohl in the grievance
proceedings were the “proximate cause” the alleged misappropriation.17 Because
Pohl’s lawsuit is “predicated” upon Kassab’ls participation in the attorney disciplinary
system, Kassab has “absolute and unqMualified” immunity that “extends to all actions
at law or in equity.” TEX. R. DISC. P. 17.09; Crampton, 596 S.W.3d at 274-75
(“immunity likewise extendsi to all actions.”). Thus, Kassab has absolute and
unqualified immunity.
VII. Pohl’s colaims are barred by the judicial proceedings
privilege because they arise out of communications that
Kasslab made to prospective clients (solicitation letters)
andi actual judicial proceedings (the barratry litigation
aind grievance process).
“The judicial-proceedings privilege is an absolute privilege that covers any
15 Plaintiffs’ First Amended Petition, at ¶¶ 29, 32.
16 Verdict, at Question 7(1)(e), (f).
17 Verdict, at Question 7(1)(e), (f).
20
statement made by the judge, jurors, counsel, parties or witnesses, and attaches to
all aspects of the proceedings, including statements made in open court, pre-trial
hearings, depositions, affidavits and any of the pleadings or other papers in the case.”
Landry's, Inc. v. Animal Legal Def. Fund, 631 S.W.3d 40, 46 (Tex. 20k21) (internal
quotations omitted). It attaches even to “communications preliminCary to a proposed
judicial proceeding” if “the communication has some relation to a proceeding that is
actually contemplated in good faith and under serious consiideration by the witness
or a possible party to the proceeding.” Id. at 48-49. “Even in the pre-suit context,
… the privilege protects communications that are themselves preparatory
to the lawsuit.” Id. (emphasis added). The privilege protects all communications
that are “necessary to set the judicial mlachinery in motion.” Id. at 50 (quoting
RESTATEMENT (SECOND) OF TORTS § 5M86 cmt. a) (emphasis added).
“Although most cases addressing the judicial communication privilege involve
claims of libel or slander, Texais courts have consistently applied the privilege
to claims arising out of communications made in the course of judicial
proceedings, regardoless of the label placed on the claim.” Laub v. Pesikoff, 979
S.W.2d 686, 690 (Tlex. App. – Houston [1st Dist.] 1998, pet. denied) (emphasis added).
Thus, the priviilege applies to any cause of action “when the essence of a claim is
damages that flow from communications made in the course of a judicial
proceeding.” Id. at 691 (emphasis added).
Here, Pohl’s alleged damages indisputably “flow from” communications that
Kassab made in the barratry litigation and grievance proceedings. Pohl sued Kassab
21
alleging he “solicited … clients/prospective clients to act as plaintiffs … to bring cases
against Pohl for alleged barratry and other claims.”18 Pohl testified to these
allegations, stating Kassab used the purported trade secret information to acquire
clients and file barratry proceedings against Pohl, which damaged his kreputation in
the community and “ruined him.”19 Pohl asked the jury to award hiCm “attorney’s fees,
expenses, and costs that Pohl has incurred in connection with the … lawsuits,
appeals, and grievances that Kassab filed,” and the jury didi.20
Because Pohl’s alleged damages “flow from” communications that Kassab
made in the barratry litigation and grievance proceedings, Pohl’s claims against
Kassab are barred regardless of their label. See Laub, 979 S.W.2d at 690 (holding
privilege applied to claims for “intentionall interference, civil conspiracy, intentional
infliction of emotional distress, negligMence, and constitutional violations”); Tex. Mut.
Ins. Co. v. Ray Ferguson Interests, Inc., No. 01-02-00807-CV, 2006 Tex. App. LEXIS
2001, at *27-28 (Tex. App.—Hoiuston [1st Dist.] Mar. 16, 2006, pet. denied) (mem. op.)
(privilege applied to statutory claim under Texas Insurance Code because “although
[plaintiff] did not pleoad defamation, its theory of damages was that its clients,
creditors, and bonlding companies abandoned it, in part, because of the [insurer's]
allegations andi assertions . . . made in the course of this judicial proceeding”).
18 Plaintiff’s First Amended Petition, at ¶ 29.
19 Pohl testified that after the barratry proceedings were filed, he was considered a “tar baby” and
nobody wanted to do business with him.
20 Verdict, at Question 7.
22
VIII. Pohl’s claims are barred by attorney immunity because an
attorney does not have a right of recovery against another
attorney arising from conduct the second attorney
engaged in as part of the discharge of his duties as a
lawyer.
Under the doctrine of attorney immunity, “an attorney does not hkave a right of
recovery, under any cause of action, against another attorney arCising from conduct
the second attorney engaged in as part of the discharge of his duties in representing
a party.” Bradt v. West, 892 S.W.2d 56, 72 (Tex. App.—Houiston [1st Dist.] 1992, writ
denied) (emphasis added). “[A]n attorney is immune from liability to nonclients for
conduct within the scope of his representation of his clients.” Youngkin v. Hines, 546
S.W.3d 675, 681 (Tex. 2018). The inquiry “focuses on the kind of conduct at issue
rather than the alleged wrongfulness of slaid conduct.” Id. “That is, a lawyer is no
more susceptible to liability for a giMven action merely because it is alleged to be
fraudulent or otherwise wrongful.” Id. “Merely labeling an attorney’s conduct
‘fraudulent’ does not and shoulid not remove it from the scope of client representation
or render it ‘foreign to the duties of an attorney.’” Id. at 483. Even “criminal conduct
is not categorically excoepted from the protections of attorney civil immunity when the
conduct alleged isl connected with representing a client in litigation.” Bethel v.
Quilling, Selanider, Lownds, Winslett & Moser, P.C., 595 S.W.3d 651, 657 (Tex. 2020);
Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 483 (Tex. 2015) (“an attorney’s conduct
may be wrongful but still fall within the scope of client representation”).
Kassab’s conduct that forms the basis of Pohl’s claims falls squarely within the
confines of attorney immunity, regardless of whether it is alleged to have violated the
23
TUTSA, because that statute does not expressly repudiate the defense. Taylor v.
Tolbert, 644 S.W.3d 637, 642 (Tex. 2022) (attorney immunity applied to statutory
claim because the statute did “not expressly, or by necessary implication, abrogate
the immunity defense”). Pohl sued Kassab because he allegedly used thke purportedly
“stolen and misappropriated confidential information … to contacCt and solicit Pohl’s
clients/prospective clients”21 in order to “bring cases against Pohl for alleged barratry
and other claims.”22 The acquisition of clients and filing of liawsuits are actions taken
“to facilitate the rendition of legal services” that fall within attorney immunity.
Youngkin, 546 S.W.3d at 682 (recognizing that “the complained-of actions included
filing lawsuits and pleadings” fell within the doctrine of attorney immunity); Clayton
v. Oldcastle Materials Tex., Inc., No. 09-18-l00063-CV, 2019 Tex. App. LEXIS 1112, at
*12, 15 (Tex. App.—Beaumont Feb. 1M4, 2019, no pet.) (mem. op.) (applying attorney
immunity to attorney “selling his legal services to the City as a potential client” and
subsequent conduct which “ocicurred in the course of his undertaking to represent”
those clients).
The fact that Koassab is alleged to have committed the misconduct before any
litigation is immalterial because “attorney immunity applies to claims based on
conduct outsidie the litigation context[.]” Haynes & Boone, LLP v. NFTD, LLC, 631
S.W.3d 65, 78-79, 81 (Tex. 2021); Cantey Hanger, 467 S.W.3d at 485 (concluding that
attorney was immune from conduct that occurred after litigation had ended). In other
21 Plaintiffs’ First Amended Petition, ¶ 26.
22 Plaintiffs’ First Amended Petition, ¶ 29.
24
words, Pohl’s characterization of Kassab’s activities as part of a business transaction
that occurred before litigation does not negate attorney immunity because Kassab
engaged in the conduct as part of his ultimate provision of legal services to his clients.
See Haynes & Boone, 631 S.W.3d at 78-79, 81 (applying attorney immunikty to lawyer’s
conduct committed as part of business transaction). In an appeaCl arising from this
case the court of appeals opined that all of Kassab’s conduct that Pohl complains
about “arose out of a commercial transaction involiving the type of legal
services Kassab provides.” Kassab v. Pohl, 612 S.W.3d 571, 578 (Tex. App.—
Houston [1st Dist.] 2020, pet. denied) (emphasis added).
Question 6, the attorney immunity question, asked “Did Kassab acquire or use
Pohl’s trade secret while in an attorney clielnt relationship and attempting to provide
legal services in that relationship iMnvolving the unique office professional skill,
training and authority of an attorney?”23 Although the jury answered “no” to this
question, there is no evidence ito support that finding.
The evidence demonstrated that on November 11, 2016, Kassab entered into a
joint venture agreemeont with other lawyers to investigate and pursue barratry claims
against Pohl. The luncontroverted evidence was that Kassab obtained his first client
at least by Febiruary 2017 and that Kassab continued to use the alleged trade secret
information after this date to acquire more plaintiffs to bring four barratry lawsuits
against Pohl on behalf of more than 400 of Pohl’s former and potential clients. If the
attorney-client contracts and identities of Pohl’s clients are Pohl’s trade secrets, the
23 Verdict, Question 6. As discussed in Kassab’s Motion for New Trial, the Court erred by including
the language “while in an attorney client relationship” in this question.
25
evidence established that Kassab “used” that information while in an attorney-client
relationship with his clients because that information was “used” to file and pursue
the barratry claims. The evidence conclusively proved that Kassab used client contact
information to send notification letters to victims of Pohl’s barratry schkeme through
the middle of 2017, while he was in attorney-client relationshipsC with hundreds of
clients beginning in February 2017. Therefore, there is no evidence to support the
jury’s finding that Kassab did not use client-related informaition while in an attorney-
client relationship and the jury’s answer should be disregarded.
Accordingly, Pohl’s claims against Kassab are barred by attorney immunity.
See Taylor, 644 S.W.3d at 648 (attorney could not be held civilly liable for conduct
which was “criminal in nature” because it wlas committed while discharging duties to
client); Highland Capital Mgmt., LPM v. Looper Reed & McGraw, P.C., No. 05-15-
00055-CV, 2016 Tex. App. LEXIS 442, at *10-11 (Tex. App.—Dallas Jan. 14, 2016,
pet. denied) (mem. op.) (applyiing attorney immunity to claim that attorney engaged
in “malicious conduct with respect to its illegal acquisition, retention, use, and
threatened disclosureo of [the plaintiff’s] proprietary and confidential information”
that “it knew to ble stolen and proprietary in furtherance of its scheme to extort,
slander, and diisparage [the plaintiff]” and “refusing to return and cease use of [the
plaintiff’s] proprietary information”).
26
IX. Pohl’s claims fail as a matter of law because his purported
damages are unrecoverable as a matter of law or because
Pohl presented no evidence of actual loss.
Pohl’s has no recoverable damages against Kassab because TUTSA does not
allow attorney’s fees from other litigation as “actual loss” damagkes, and Pohl
presented no evidence of fair market value or any other actual lossC at trial.
A. Pohl cannot recover attorney’s fees from other
litigation as actual damages as a mattter of law.
TUTSA provides recovery for “actual loss[es] caused by misappropriation,”
TEX. CIV. PRAC. & REM. CODE § 134A.004, but thee act does not define that term.
Although no Texas case has provided a definitioun, the act requires this provision to
“be applied and construed to effectuate its general purpose to make uniform the law
with respect to the subject of this chaapter among states enacting it.” See id. §
134A.008. Thus, the Court must look to and be guided by decisions from other states
that have adopted the Uniform Terade Secrets Act. See Morgan v. Clements Fluids S.
Tex., Ltd., 589 S.W.3d 177, 19f1 n.4 (Tex. App.—Tyler 2018, no pet.) (looking to Florida
law when interpreting TUTSA because “[t]he Florida Uniform Trade Secrets Act is
very similar to the TUTSA”).
Courts in iother jurisdictions “have made clear that ‘actual loss’ means ‘loss of
profits, losto customers or lost market share.’” K3 Enter., Inc. v. Sasowski, No. 20-
24441-CIV-CAN, 2022 U.S. Dist. LEXIS 234206, at *10 (S.D. Fla. 2022) (concluding
reputational damage was not an “actual loss” under Florida’s Uniform Trade Secrets
Act) (citing Fin. Info. Techs., LLC v. iControl Sys., USA, LLC, 21 F.4th 1267, 1276
(11th Cir. 2021) (understanding “actual loss” in terms of lost profits); Selectica, Inc. v.
27
Novatus, Inc., No. 6:13-cv-1708-Orl-40TBS, 2015 U.S. Dist. LEXIS 191940, at *9
(M.D. Fla. 2015) (“‘Actual loss’ has been defined as ‘loss of profits, lost customers or
lost market share.’”); Saforo & Assocs., Inc. v. Porocel Corp., 991 S.W.2d 117, 124
(Ark. 1999) (“actual loss” means “the plaintiff’s lost profits or the defekndant’s gain,
whichever affords the greater recovery.”). C
In a case construing the Idaho Uniform Trade Secrets Act, the Idaho Supreme
Court held that “actual loss” means “lost profits, lost custoimers, lost market share,
and similar losses,” but specifically held that “it would be an anomaly for us to allow
attorney fees to be recovered in a case like this as part of damages.” GME, Inc. v.
Carter, 917 P.2d 754, 757 (Idaho 1996); see also Twin Falls Staffing, LLC v. Visser
(In re Visser), No. 1:13-cv-00408-BLW, 201l4 U.S. Dist. LEXIS 56705, at *9 (D. Idaho
2014) (losses from misappropriation oMf trade secrets “logically include lost profits, but
not attorneys’ fees.”).
The conclusion that attiorney’s fees from other litigation are not actual losses
recoverable under TUTSA is consistent with Texas trade secret law before the statute
was enacted. The Texoas Supreme Court defined recoverable losses for a trade secret
claim as “the valuel of the plaintiff’s lost profits, the defendant’s actual profits from
the use of the isecret, the value a reasonably prudent investor would have paid for
the trade secret, the development costs the defendant avoided by the
misappropriation, and a reasonable royalty.” Sw. Energy Prod. Co. v. Berry-
Helfand, 491 S.W.3d 699, 710–11 (Tex. 2016) (emphasis added). No Texas court has
ever allowed attorneys’ fees in other cases to be recovered as actual damages in a
28
trade secret claim. In fact, at least one has concluded the opposite while dismissing a
TUTSA claim. See Lacore Enters., LLC v. Angles, No. 05-21-00798-CV, 2023 Tex. App.
LEXIS 1926, at *32-33 (Tex. App.—Dallas Mar. 23, 2023, no pet. h.) (mem. op.)
(rejecting contention that “disclosure of [party’s] confidential informaktion” caused
“the attorney’s fees that have been incurred [which] is evidence of Cdamages” because
“attorney’s fees incurred in a lawsuit are not actual damages.”).
This conclusion is further reinforced by Texas law iregarding attorney’s fees
incurred in previous litigation. “[F]ees expended in prior litigation generally are not
recoverable as damages; fees are recoverable only when an agreement between the
parties so provides.” Martin-Simon v. Womack, 68 S.W.3d 793, 797 (Tex. App.—
Houston [14th Dist.] 2001, pet. denied); see lalso Tana Oil & Gas Corp. v. McCall, 104
S.W.3d 80, 81-82 (Tex. 2003) (attorneMy’s fees for defending a different claim are not
recoverable as damages as a matter of law); O’Neal v. Dale, No. 02-20-00173-CV, 2021
Tex. App. LEXIS 466, at *28 i(Tex. App.—Fort Worth Jan. 21, 2021, no pet.) (mem.
op.) (“a party’s claim that he incurred attorney’s fees to defend against [another] claim
is not a viable damageo claim.”); Tex. Mut. Ins. Co. v. Ray Ferguson Interests, Inc., No.
01-02-00807-CV, 2l006 Tex. App. LEXIS 2001, at *23-24 (Tex. App.—Houston [1st
Dist.] Mar. 16i, 2006, pet. denied) (mem. op.) (“financial loss due to time spent by
[party] on litigation matters” in another case was not, as a matter of law, recoverable).
And the law is clear that “[a] party relying on assertions of non-recoverable damages
alone, such as attorney’s fees and expenses sustained in defending a lawsuit . . . has
presented a legal barrier to any recovery.” Woodhaven Partners Ltd. v. Shamoun &
29
Norman, L.L.P., 422 S.W.3d 821, 837 (Tex. App.—Dallas 2014, no pet.).
Pohl has argued that he is entitled to recover attorney’s fees based on an
exception to the general rule based on the “tort of another,” which provides that “[o]ne
who through the tort of another has been required to act in the proktection of his
interests by bringing or defending an action against a third perCson is entitled to
recover reasonable compensation for loss of time, attorney fees and other
expenditures thereby suffered or incurred in the earlier iaction.” Naschke v. Gulf
Coast Conference, 187 S.W.3d 653, 655 (Tex. App.—Houston [14th Dist.] 2006, pet.
denied) (quoting RESTATEMENT (SECOND) OF TORTS § 914 (1979)). But that exception
has never been embraced by the Texas Supreme Court24 and has been flatly rejected
by the Fourteenth Court of Appeals.25 See lNaschke, 187 S.W.3d at 655 (“Because we
are bound to follow the existing lawsM of the State, we are not at liberty to adopt a
theory of recovery that has not been enacted by the Legislature or adopted by the
Texas Supreme Court.”). i
The First Court of Appeals has not specifically held whether the “tort of
another” exception iso viable. But it has stated that because this exception is an
24 See Akin, Gum f ip, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d 106, 119
(Tex. 2009) (“o[W]e need not and do not address whether the exception set out in section 914(2) of the
Second Restnatement should be adopted as Texas law.”).
25 Other intermediate courts of appeals have likewise refused to adopt the tort of another doctrine.
Riner v. Neumann, 353 S.W.3d 312, 323 (Tex. App.—Dallas 2011, no pet.) (“Given the supreme court’s
faithful adherence to the American Rule, and its strong statement in Tony Gullo that trial courts lack
the inherent authority to award fees contrary to the Rule, we decline to adopt a new equitable
exception to the Rule.”); TOKA Gen. Contractors v. Wm. Rigg Co., No. 04-12-00474-CV, 2014 Tex. App.
LEXIS 3776, at *20 (Tex. App.—San Antonio Apr. 9, 2014, pet. denied) (mem. op.) (collecting cases);
Per-Se Techs., Inc. v. Sybase, Inc., No. 01-03-01293-CV, 2005 Tex. App. LEXIS 5096, at *24 (Tex.
App.—Houston [1st Dist.] June 30, 2005, no pet.) (mem. op.) (collecting cases).
30
equitable doctrine it can only apply when the plaintiff is “wholly innocent” of any
wrongdoing. See Per-Se Techs., Inc. v. Sybase, Inc., No. 01-03-01293-CV, 2005 Tex.
App. LEXIS 5096, at *24 (Tex. App.—Houston [1st Dist.] June 30, 2005, no pet.) (mem.
op.); see also Brannan Paving GP, LLC v. Pavement Markings, Inc., 44k6 S.W.3d 14,
27 (Tex. App.—Corpus Christi 2013, pet. denied) (referring to thCe “tort of another
exception” as an “equitable exception” to the general rule).
Here, the jury concluded in response to Question 3 thiat the “wrongful conduct
of Pohl . . . contribute[d] to the injury.”26 Pohl argues that in Question 4, the jury
failed to assign any percentage of responsibility to Pohl. But the issue is not related
to Pohl’s proportionate responsibility. Rather, the point is simply that one without
clean hands cannot obtain an equitable relmedy, and one found to have engaged in
“wrongful conduct” does not have cleaMn hands. See Frazier v. Havens, 102 S.W.3d 406,
414 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (“one who seeks an equitable
remedy must do equity and coime to court with clean hands.”).
Pohl cannot claim the equitable tort of another exception even if it is viable
under Texas law. Seeo Per-Se Techs., 2005 Tex. App. LEXIS 5096, at *24; see also
Pacesetter Pools, Ilnc. v. Pierce Homes, Inc., 86 S.W.3d 827, 834 (Tex. App.—Austin
2002, no pet.) i(“[B]ecause the jury found that Allcox’s damages were caused by the
negligent conduct of both Pierce Homes and Pacesetter, equitable principles do not
allow Pierce Homes to recover its previously incurred attorney’s fees as damages.”);
Dayton Hudson Corp. v. Eldridge, 742 S.W.2d 482, 488 (Tex. App.—Dallas 1987, writ
26 Verdict, at Question 3.
31
denied) (“[I]n the present case, Eldridge is not an innocent party forced to incur costs
and expenses, including attorneys’ fees, to be treated as the legal consequences of
some original wrongful act of another and permitted to be recovered as damages.”).
B. Pohl presented no evidence to support his kother
elements of damage. e
Pohl also sought damages in the form of the “price that a willing buyer and a
willing seller would have agreed on, at the time of the misatppropriation, as a fair
price for Kassab’s [alleged] use of the trade secret(s)” for which the jury awarded
$250,000.27 But Pohl did not present any testimony eabout the “market value” of the
information at issue. See City of Harlingen v. Eustate of Sharboneau, 48 SW.3d 177,
182 (Tex. 2001) (defining “market value” to mean “the price the property will bring
when offered for sale by one who desiresa to sell, but is not obliged to sell, and is bought
by one who desires to buy, but is under no necessity of buying.”). Pohl did testify that
the information about his clientse had intrinsic value to him because he could contact
them as former clients. Butf intrinsic value is not the same as market value. See
Accurate Precision Plating, LLC v. Guerrero, No. 01-14-00706-CV, 2015 Tex. App.
LEXIS 12034, at *7 (Tex. App.—Houston [1st Dist.] Nov. 24, 2015, pet. denied) (mem.
op.). As the purpiorted owner of the property, Pohl could only testify (if he had been
properly deosignated)28 about “market value, not intrinsic value or some speculative
value of the property.” Id. There was no evidence to support the jury’s finding on the
27 Verdict, Question 7(2).
28 As explained in Kassab’s Motion for New Trial, Pohl was erroneously allowed to testify on this issue
over Kassab’s objection.
32
market value of the purported trade secrets.
Presumably, the jury extrapolated the $250,000 figure from evidence that
Kassab and Montague paid Favre a retainer to act as an expert in the barratry
litigation. Even if the jury could reasonably conclude that the $250,000k figure was a
“purchase price” for Pohl’s alleged trade secrets, that would be conCsidered an “actual
value” and not “market value,” which was the theory submitted to the jury. Pike v.
Tex. EMC Mgmt., LLC, 610 S.W.3d 763, 784 n.27 (Tex. 2020i) (distinguishing between
“market value” and “actual value” and noting that “evidence of purchase price alone
cannot establish market value” and approving cases rendering take-nothing
judgments “where purchase price was only evidence of damages presented”).
“[P]urchase price is merely a starting poinlt for calculating actual value,” not market
value. See id. at 784. Further, “one saMle [is] not sufficient to fix a fair market value.”
InterFirst Bank Dall., N.A. v. Risser, 739 S.W.2d 882, 891 (Tex. App.—Texarkana
1987, no writ); Mo., K. & T. Ri. Co. v. Moss, 135 S.W. 626, 627 (Tex. Civ. App. 1911,
no writ) (“Evidence of a single sale is admissible, but not alone sufficient to establish
market value.”). o
Finally, thelre was no evidence to support the jury’s award of $200,000 for the
“value of the dievelopment costs that Kassab avoided by [allegedly] misappropriating
Pohl’s trade secret(s).”29 There was no testimony by Pohl about Kassab’s development
costs. Kassab testified that he did not know how much in costs he avoided, if any, by
using information provided by Precision. And no other witness testified about
29 Verdict, Question 7(3).
33
development costs. Although damages in trade-secret cases can be flexible and
imaginative, damages “cannot be based on sheer speculation.” Sw. Energy, 491
S.W.3d at 712. Because Pohl presented no evidence for the jury to make a just and
reasonable inference regarding development costs saved by Kassab, thkat award was
improper. C
X. Pohl’s claims fail for lack of causation because it was
Pohl’s barratry that was the sole cause of htis damages, not
anything that Kassab did. i
Pohl failed to present legally sufficient evidence of proximate cause.
“Proximate cause has two elements: cause in fact and foreseeabilty.” Akin, Gump,
Strauss, Hauer & Feld, L.L.P. v. Nat'l Dev. & Research Corp., 299 S.W.3d 106, 122
(Tex. 2009). “Causation must be proved, anld conjecture, guess, or speculation will not
suffice as that proof.” Id. In Akin, GMump, the Court found insufficient evidence to
support the jury’s award of appellate attorney’s fees as damages to the client in a
legal malpractice claim becausie there was no evidence that if the client had obtained
a favorable judgment, the opposing party in the underlying case would not have
appealed and caused tohose fees to be incurred. Id. at 123.
Likewise, Plohl presented no evidence that Pohl would not have been sued for
barratry and iincurred the fees that he did if Kassab had not obtained the client
information from Favre. None of the damages claimed by Pohl were caused by
Kassab’s conduct, but instead occurred because of Pohl’s own misconduct. If Pohl had
not committed barratry, he would not have been sued or grieved by his former clients
for committing barratry. In other words, Pohl’s criminal conduct was the sole
34
proximate cause of his own damages, see Peeler, 909 S.W.2d at 496-97, or by Pohl’s
former clients’ decision to bring the barratry proceedings were a superseding or new
and intervening causes of Pohl’s damages. See Stanfield, 494 S.W.3d at 102-03. There
is no evidence to support the jury’s conclusion that Kassab’s condkuct was the
proximate cause of Pohl’s damages. See Akin, Gump, 299 S.W.3d Cat 123; Saulsberry
v. Ross, 485 S.W.3d 35, 50 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (client’s
award of attorney’s fees as damages was insufficient wheni evidence suggested that
client “would have incurred legal fees” regardless of the lawyer’s actions).
Even if Kassab created a condition by notifying Pohl’s former and rejected
clients of Pohl’s barratry, the resulting harm – the attorney’s fees Pohl incurred
defending against those proceedings – wasl caused by Pohl, who committed barratry
in the first instance, and the clients, Mwho sued Pohl for committing that barratry. It
was not caused by Kassab, the lawyer merely representing those clients. See
Stanfield, 494 S.W.3d at 99 (eixplaining that the mere fact original tortious conduct
is a “but for” cause of intervening conduct does not make the first actor liable for the
conduct of the secondo). Accordingly, Pohl’s claims against Kassab fail as a matter of
law for lack of caulsation.
XI. Piohl’s conspiracy claim is pre-empted under TUTSA or
oChapter 33.
TUTSA provides that it “displaces conflicting tort, restitutionary, and other
law of this state providing civil remedies for misappropriation of a trade secret.” TEX.
CIV. PRAC. & REM. CODE §134A.007. In Reynolds v. Sanchez Oil & Gas Corp., No. 01-
18-00940-CV, 2023 Tex. App. LEXIS 8903 (Tex. App.—Houston [1st Dist.] Nov. 30,
35
2023, no pet. h.), the plaintiff sued for misappropriation of trade secrets and aiding
and abetting breach of fiduciary duty. Id. at *7-8. The court of appeals concluded that
the aiding and abetting claim was “primarily based on the individual appellants’
misappropriation of trade secrets” and “provide[ed] remedies for thke underlying
misconduct of misappropriation of trade secrets.” Id. at 47. “Under Cthe plain language
of TUTSA, these claims conflict with civil remedies for misappropriation of a trade
secret.” Id. at *47-48. Therefore, “TUTSA preempts these iclaims to the extent they
are based on appellants’ alleged misappropriation 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 misappropriation of trade secrets. The conspiracy
question asked, “[r]egarding the conduct ylou found in answer to Question 2 [which
asked “[d]id any of the parties listed bMelow misappropriate Pohl’s trade secret?”], was
Kassab part of a conspiracy that damaged Pohl with any of those named below?”30
Because Pohl’s conspiracy claiim is “primarily based on” alleged misappropriation of
trade secrets, it is preempted. See Reynolds, 2023 Tex. App. LEXIS 3067, at *47-48;
VEST Safety Med. Serovs., LLC v. Arbor Env't, LLC, No. 4:20-CV-0812, 2022 U.S. Dist.
LEXIS 127285, at l*10 (S.D. Tex. 2022) (“the weight of authority from district courts
within the Fiifth Circuit … [demonstrate a] conspiracy claim is preempted by
TUTSA.”). Thus, the judgment should not include joint and several liability against
Kassab.
30 Verdict, Question 15.
36
XII. Exemplary damages are improper because one of the
predicate findings for exemplary damages was not
answered by the jury unanimously.
“Whether a jury's award of exemplary damages is supported by a unanimous
finding as to liability and the amount of exemplary damages is constkrued as a ‘no
evidence’ or ‘matter of law’ issue.” Redwine v. Peckinpaugh, 535 SC.W.3d 44, 50 (Tex.
App.—Tyler 2017, no pet.); Cullum v. White, 399 S.W.3d 173, 188 (Tex. App.—San
Antonio 2011, pet. denied) (whether plaintiff is entitledi to exemplary damages
because there was not a unanimous verdict is a “matter of law issue.”).
Question 19 was the only question in the jury charge that asked about
exemplary damages. The predicate instruction for Question 19 said, “Answer the
following question only if you unanimouslly answered ‘Yes’ to Question No. 17 or
Question No. 18. Otherwise, do not anMswer the following question.”31
The jury did not answer Question 18.
Some members of the ijury answered Question 17 “Yes,” finding that the
misappropriation of trade secrets was willful and malicious.32 But the certificate at
the end of the jury veordict makes it unmistakably clear that the answer to Question
17 was not unanilmous. First, in the general part of the jury certificate the jury
declined to chieck the box indicating that “Our verdict is unanimous,” but instead
checked the box indicating that only ten jurors agreed to every answer:
31 Verdict, Question 19.
32 Verdict, Question 17.
37
The additional certificate required the jury to indicate whether certaink liability and
damages questions were answered unanimously: l
In response to that instruction, the presiding juruor signed certificates indicating that
Questions 2 and 19 were unanimous. But thne presiding juror conspicuously did not
sign the certificate for Question 17: r i
Thus, the jury’s ansCwer to Question 17 was unmistakably not unanimous.
The jury’s failure to answer Question 17 unanimously precludes any award of
exemplary d
afmages by both rule and statute. See TEX. R. CIV. P. 292 (“A verdict may
be rendered awarding exemplary damages only if the jury was unanimous in finding
liability for and the amount of exemplary damages.”) (emphasis added); TEX. CIV.
PRAC. & REM. CODE § 41.003(d) (“Exemplary damages may be awarded only if the
jury was unanimous in regard to finding liability for and the amount of exemplary
38
damages.”) (emphasis added).
Texas cases have not hesitated to apply this principle articulated in both rule
and statute. See Cullum, 399 S.W.3d at 188 (“As a matter of law, a party cannot
recover exemplary damages without a unanimous verdict on the underlkying theory of
liability.”); Redwine, 535 S.W.3d at 52 (concluding “that the trCial court erred in
entering judgment awarding exemplary damages” when “[d]espite [the jury] having
answered the exemplary damages question, which was prediicated on its unanimously
having found that [the defendant] made multiple defamatory statements, the jury
stated in the charge that its verdict was not unanimous.”); DeAtley v. Rodriguez, 246
S.W.3d 848, 850 (Tex. App.—Dallas 2008, no pet.) (a non-unanimous verdict on
liability was insufficient as a matter of llaw to support an award of exemplary
damages). M
Because the predicate finding of malicious misappropriation was the only way
to get to exemplary damages, aind that question was not answered unanimously, the
judgment cannot include exemplary damages as a matter of law.
o CONCLUSION & PRAYER
For these relasons, Kassab asks the Court to grant this motion, disregard the
jury findings, iand enter a take nothing judgment in favor of Kassab or reduce the
judgment as set forth herein.
39
ALEXANDER DUBOSE JEFFERSON
/s/ Kevin Dubose
Kevin Dubose
kdubose@adjtlaw.com
Texas State Bar No. 0615050k0
1844 Harvard Street e
Houston, Texas 77008 C
Phone (713) 523-0667 
Facsimile (713) 522-4553
FOGLER, BRAR, Oi’NEIL & GRAY, LLP
/s/ Murray Fogler
Murray Foegler
mfogler@foglerbrar.com
Texas uState Bar No. 07207300
909 Fannin, Suite 1640
Houston, Texas 77002
(l713) 481-1010
a(713) 574-3224 (Fax)
THE KASSAB LAW FIRM
e /s/ David Eric Kassab
i Lance Christopher Kassab
f Texas State Bar No. 00794070
David Eric Kassab
Texas State Bar No. 24071351
o 1214 Elgin Street
Houston, Texas 77004
l Telephone: (713) 522-7400
i E-service: eserve@kassab.law
o ATTORNEYS FOR KASSAB DEFENDANTS
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this document has been
forwarded to all parties pursuant to the Texas Rules of Civil Procedure on this the
19th day of January, 2024.
/s/ David Eric Kassab
David Eric Kassab
40
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: 83597613
Filing Code Description: No Fee Documents
Filing Description: THE KASSAB DEFS MOTION FOR JUDGtMENT NOT
WITHSTANDING THE VERDICT AND TO DISREGARD JUiRY FINDINGS
Status as of 1/19/2024 3:37 PM CST s
Case Contacts 
Name BarNumber Email g TimestampSubmitted Status
Todd Taylor ttaylor@jandflaw.com 1/19/2024 3:31:14 PM SENT
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT
Harris Wells hwaells@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT
Todd Taylor ttaylor@jandflaw.com 1/19/2024 3:31:14 PM SENT
Scott M.Favre scott@favrepa.com 1/19/2024 3:31:14 PM SENT
Lawyer Wade c lawyerwade@hotmail.com 1/19/2024 3:31:14 PM SENT
Chris C.Pappas f cpappas@krcl.com 1/19/2024 3:31:14 PM SENT
Non-Party Witness Billy Shepherd  bshepherd@spcounsel.com 1/19/2024 3:31:14 PM SENT
Non-Party Dona Pohl DonaLyann@yahoo.com 1/19/2024 3:31:14 PM SENT
Non-Party Edgar Jaimes C edgarsroom@gmail.com 1/19/2024 3:31:14 PM SENT
Kevin Dubose a 6150500 kdubose@adjtlaw.com 1/19/2024 3:31:14 PM SENT
Marisa Barrera Cruz Hurd 24041157 mhurd@adjtlaw.com 1/19/2024 3:31:14 PM SENT
Lance Kassab o eserve@kassab.law 1/19/2024 3:31:14 PM SENT
Murray JFogleUr mfogler@foglerbrar.com 1/19/2024 3:31:14 PM SENT
Murray Fogler mfogler@fbfog.com 1/19/2024 3:31:14 PM SENT
Andrew Johnson ajohnson@thompsoncoe.com 1/19/2024 3:31:14 PM SENT
Benjamin Ritz britz@thompsoncoe.com 1/19/2024 3:31:14 PM SENT
Dale Jefferson 10607900 jefferson@mdjwlaw.com 1/19/2024 3:31:14 PM SENT
Raul Herman Suazo 24003021 suazo@mdjwlaw.com 1/19/2024 3:31:14 PM SENT
Kevin Graham Cain 24012371 cain@mdjwlaw.com 1/19/2024 3:31:14 PM SENT
D Kassab david@kassab.law 1/19/2024 3:31:14 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: 83597613
Filing Code Description: No Fee Documents
Filing Description: THE KASSAB DEFS MOTION FOR JUDGtMENT NOT
WITHSTANDING THE VERDICT AND TO DISREGARD JUiRY FINDINGS
Status as of 1/19/2024 3:37 PM CST s
Case Contacts 
D Kassab david@kassab.lagw 1/19/2024 3:31:14 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 1/19/2024 3:31:14 PM SENT
L Kassab lance@kassab.law 1/19/2024 3:31:14 PM SENT
Kelly Skelton reception@kassab.law 1/19/2024 3:31:14 PM SENT
Murray J. Fogler 7207300 mfaogler@foglerbrar.com 1/19/2024 3:31:14 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT
Thallia Malespin tmalespin@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT
Misty Davis c mdavis@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT
Harris Wells f hwells@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT
David Kassab  david@kassab.law 1/19/2024 3:31:14 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT"