filing_id,date,doc_type,party,description,doc_type_detail,procedural_posture,chain,outcome,phase,filename,relief_requested,full_text
46,2022-11-30,MSJ,Pohl,Partial MSJ on Barratry Liability,Plaintiffs' Rule 166(g) Motion on Barratry Liability and Specific Affirmative Defenses Asserted by the Kassab Defendants,"Pre-trial motion filed November 30, 2022 by Pohl, five days before the December 5, 2022 trial setting. Seeks legal rulings under Tex. R. Civ. P. 166a(g) to narrow trial issues by: (1) finding barratry is not legally relevant to this lawsuit, and (2) striking 10+ of Kassab's affirmative defenses as barred as a matter of law.",MSJ-3,N/A,Phase 3,2022-11-30_MSJ_Pohl-Partial-MSJ-Barratry-Liability_FILED.pdf,"Find that: (1) establishing whether barratry occurred is not legally relevant to this lawsuit; (2) Kassab's affirmative defenses of unlawful acts, illegality, criminal acts, in pari delicto, justification, immunity under Rule 17.09, unclean hands, release, accord and satisfaction, estoppel, subject to a valid contract, assumption of the risk, and contribution are barred as a matter of law","11/30/2022 8:20 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 70589892
By: Deandra Mosley
Filed: 11/30/2022 8:20 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et. al § IN THE DISTRICT COURT OF
Plaintiffs, §
V. § HARRIS COUNTY,k TEXAS
§ r
LANCE CHRISTOPHER § l
KASSAB, et. al §
§ c
Defendants. § 189TH JUDrICIAL DISTRICT
PLAINTIFFS’ RULE 166(g) MOTION ON BARRATRY LIDABILITY AND SPECIFIC
AFFIRMATIVE DEFENSES ASSERTED BY THE KASSAB DEFENDANTS
Under Texas Rule of Civil Procedure 166(g), Plaintiffs Michael Pohl and Law Office of
Michael A. Pohl PLLC (collectively “Pohl”) file this Motion on the issues of the relevance of
barratry liability and the legal viability of specific affirmative defenses asserted by the Kassab
defendants (the “Motion”). Pohl requests tahat the Court find Defendants Lance Christopher
Kassab and Lance Christopher Kassab P.C.’s (collectively, “Kassab”) theories regarding
establishing barratry and certain otheer legal defenses fail as a matter of law.
f I. STANDARD
Under Texas Rule ofy Civil Procedure 166(g), this Court can decide legal issues at pretrial
“to assist in the disposition of the case without undue expense or burden to the parties . . . .” See
Tex. R. Civ. P. 166a(g). Allowing this trial to subsume the question of whether Pohl committed
barratry, in connfection with clients whose information Kassab later misappropriated, would greatly
extend the length of trial, and it would needlessly complicate the issues presented to the jury. A
legal determination by this Court that whether barratry did in fact occur is immaterial to Pohl’s
claims—whether as a matter of denial or as a defense—would assist in disposing of this case with
less undue burden and expense. Furthermore, determining whether certain defenses fail as a matter
of law is a set of legal questions the Court can decide to appropriately focus the trial in this case.
II. DISCUSSION
To prevent “undue expense” and additional “burden to the parties,” and to ensure that trial
does not proceed for longer than is necessary, this Court should find that establishing whether
barratry occurred is not legally relevant to the material issues in this case and that ten of Kassab’s
affirmative defenses are not legally viable and have no bearing at trial. l
A. The alleged existence of barratrous conduct by Pohl is not ac dtenial of or defense to
Pohl’s claims, and Kassab’s desire to present evidence on irti is not material.
Barratry does not constitute a defense to claims for theft oDf tirade secrets,1 conversion,2 or
conspiracy.3 Even if Kassab could show that all of Pohl’s fosrmer and prospective clients were
obtained through barratry—and he cannot—it would not prevent, nor is it material to, Pohl’s ability
to establish the elements of his claims. 4 Because the alleged existence of barratry does not impact
Pohl’s ability to establish his claims, nor does it constitute a defense to Pohl’s claims if established,
the Court should find that as a matter of lawM, establishing barratry is not legally relevant at trial.
Kassab’s position is that, as oa lawyer, he was entitled or otherwise justified in
misappropriating and converting ncot only another lawyer’s proprietary information, but also
confidential and privileged information about another lawyer’s clients simply because Kassab
hoped to find evidence of bparratry claims to pursue against Pohl. Kassab likewise suggests that it
was appropriate to solicit and entice the employees or contractors of another lawyer to violate their
1 A trade secrets cfl f aim under the Texas Uniform Trade Secrets Act (“TUTSA”) involves the following elements: (1)
a plaintiff owned trade secrets; (2) a defendant misappropriated the trade secrets; and (3) that the misappropriation
caused the plaintiff damages. See Tex. Civ. Prac. & Rem. Code §§ 134A.002 & 134A.004.
2 A conversion claim can include the following elements: “(1) the plaintiff owned, had legal possession of, or was
entitled to possession of the property; (2) the defendant assumed and exercised dominion and control over the property
in an unlawful and unauthorized manner, to the exclusion of and inconsistent with the plaintiff’s rights; and [applicable
in some cases] (3) the defendant refused the plaintiff’s demand for return of the property.” Akin v. Santa Clara Land
Co., Ltd., 34 S.W.3d 334, 344 (Tex. App.—San Antonio 2000, pet. denied); see also Hunt v. Baldwin, 68 S.W.3d 117,
131 (Tex. App.—Houston [14th Dist.] 2001, no pet.).
3 The elements of conspiracy are familiar: (1) a combination of at least two persons; (2) the persons seek to accomplish
an object or course of action; (3) there is a meeting of the minds on the object or course of action; (4) one or more
unlawful, overt acts are taken in furtherance of the conspiracy; and (5) damages occur.
4 Pohl asserts claims for conversion, TUTSA violations, and conspiracy. Plaintiff’s First Amended Petition ¶¶ 35–43.
obligations by disclosing confidential information, simply because Kassab believed it could help
support a claim against Pohl. However, the law does not authorize tortious conduct because a
person may believe that conduct could help them uncover some other allegedly wrongful acts.
As will be discussed further in the motions in limine and before the Coukrt, the topic of
barratry is relevant to this case in certain, limited respects. The fact that Kassabl wanted to and did
pursue barratry claims against Pohl necessarily will be a part of this casec. But evidence trying to
prove the merits of such claims for barratry should not be presented sto the jury. However, since
the start of this lawsuit, Kassab has attempted to inject the broader question of whether barratry
did in fact occur into this lawsuit—Kassab even surreptitiously asserted claims pending in other
lawsuits as counterclaims in this lawsuit. But there is a reason that Kassab uses bombastic
language and allegations rather than clear and plain language to articulate the relevance of
barratry—Kassab is intent on using this issuea to paint Pohl in a negative light in front of the jury.
Still, any presentation of evidence directed at establishing whether Pohl violated rules against
barratry is not material to the issues ine this case, because establishing barratry does not (1) prevent
Pohl from establishing the elemenfts of his claims; and (2) is not a defense to Pohl’s claims.
1. Establishing barryatry does not deny the factual bases of Pohl’s claims or prevent Pohl
from establishing the elements of his claims.
On their face, the elements necessary to establish a TUTSA claim, a conversion claim, and
the existence of ac conspiracy have nothing to do with barratry. Kassab conflates the idea that a
client contract procured through barratry is voidable (in an action brought by the client who is a
party to the contract) with the distinct issue of ownership of trade secret information. Establishing
that barratry occurred does not entail revoking an attorney’s ownership of compilations of
information about clients the attorney has represented. Nor does a contract’s voidability impact
the ownership of information reflected in the contract. Thus, whether Pohl committed barratry is
not a relevant matter that could deny Pohl the ability to establish the elements of his claims.
Kassab incorrectly appears to believe that barratry may implicate Pohl’s ownership of the
trade secrets. There is no legal basis for this position. Because establishing that bakrratry occurred
will not operate to deny Pohl the ability to establish his claims, it is not a relelvant issue that the
jury needs to consider or receive evidence on. c
i. The alleged barratry does not impact Pohl’s ownershisp of the trade secrets.
To prevail on his TUTSA claim, Pohl must be an owner of trade secrets. The statute
provides that owner “means, with respect to a trade secret, the person or entity in whom or in which
rightful, legal, or equitable title to, or the right to enforce rights in, the trade secret is reposed.”
See Tex. Civ. Prac. & Rem. Code § 134A.002(3 n -a).5 To the extent that Kassab argues that
establishing that Pohl committed barratry impracts Pohl’s ability to be the owner of any trade
secrets, that argument fails as a matter of law. Kassab has conflated the enforceability of a client
contract against a client allegedly eobtained through barratry with whether Pohl owns the
information regarding with whomf Pohl has contracted—information reflected on copies of Pohl’s
own client contracts. y
Pohl has legal or equitable title to the information that comprises his client list, as well as
the collection of coapies of attorney-client fee agreements, and the other files misappropriated by
Kassab regardlefss of how clients listed in those files were obtained. Based on his prior arguments,
Kassab appears to believe that Pohl cannot prevail on his claims without showing that every client
5 To the extent that Kassab suggests that the phrase “equitable title” imports some form of equitable analysis to whether
Pohl owns the trade secrets, there is no legal support for this position. The reference to “equitable title,” especially in
connection with the reference to “legal title,” simply incorporates the idea of beneficial ownership into the statutory
definition. Equitable title is a “title that indicates a beneficial interest in property and that gives the holder the right to
acquire formal legal title.” See Title: Equitable Title, Black’s Law Dictionary (11th ed. 2019).
behind each client contract was procured without barratry. That is not the case, and Kassab cannot
demonstrate that the existence of barratry is legally material to this lawsuit.
To understand why establishing barratry is not material, it may be useful to contemplate
what the impact would be if one assumed that Kassab can show that Pohl had obktained some, or
even all, of his clients and potential clients through barratry. Even if a client hlas a valid claim for
barratry, there is no legal support for the idea that simply because barractry occurred, the former
lawyer loses (1) ownership of the collection of information constitutisng the lawyer’s client list; or
(2) ownership of the attorney’s copy of the client contract. Rather, the statutory scheme suggests
the precise opposite. A client contract is not rendered void even if it is established that barratry
occurred. It is merely voidable if the client brings an action to have the contract declared void.
See Tex. Gov’t Code § 82.0651(a). There is no dispute that none of Pohl’s client contracts have
been declared void. This would not change eaven if Kassab established that barratry occurred in
this lawsuit, because only the client can have a contract declared void. See id.
But the lack of relevance exteends a step further. Even in a hypothetical world where some
of Pohl’s clients had their client cfontracts declared void, that would not mean that Pohl’s client list
and copies of client contractsy no longer belong to him. It would simply mean that a client contract
that was declared voidC is not enforceable against the client. There is no support for the idea once
a contract has been daeclared void, an attorney is divested of ownership of the information regarding
with whom he hfas contracted. Nor would an attorney be divested of ownership of all copies of the
void clienUt contract in his possession. Nor would the fact that a contract was declared void impact
an attorney’s ownership of a compilation of information about clients that included the information
about one client whose contract was declared void. There simply is no support for the idea that a
finding of barratry, even if it voids a client contract, results in relief, finding, or a circumstance
where an attorney must then purge his or her records of all references to that client and their
information.
Kassab’s arguments around barratry rely on obfuscating the issues that are actually before
the Court. Kassab has conflated the voidability of a contract—which can preveknt that contract
from being enforced—with ownership of trade secrets that include the compilaltion of information
contained in those contracts. Regardless of whether barratry occurred, Pohcl owned the information
about with whom he has done business, whether that information toosk the form of client contracts
or client lists. While Kassab may dispute if Pohl owned those trade secrets, whether barratry
occurred will not impact that determination.
2. Establishing barratry is not a standalone defense to Pohl’s claims.
While Kassab’s various other pled defenses are discussed below, it is important to note that
despite Kassab’s framing of this case, establishirng barratry is not an affirmative defense to Pohl’s
claims. There are no “outlaws” under Texas law. Kassab’s unsubstantiated belief that Pohl
engaged in barratry does not give Kaessab the right to ignore Pohl’s legal rights (and to treat Pohl
as outside the law’s protections) bfy misappropriating and converting Pohl’s property.
“An affirmative defeynse is defined as ‘a denial of the plaintiff’s right to judgment even if
the plaintiff establishes every allegation in its pleadings.’ An affirmative defense allows the
defendant to introdauce evidence to establish an independent reason why the plaintiff should not
prevail; it does fnot rebut the factual proposition of the plaintiff’s pleading.” Hassell Constr. Co.,
Inc. v. Stature Commercial Co., Inc., 162 S.W.3d 664, 667 (Tex. App.—Houston [14th Dist.] 2005,
no pet.) (citations omitted).
Despite prior insinuations from Kassab, establishing barratry is not a standalone defense to
Pohl’s claims, nor has Kassab pled it as a standalone defense. See generally Kassab’s Eighth
Amended Answer, Affirmative Defenses and Counterclaim (“Kassab’s Eighth Answer”). Even if
Kassab could prove that Pohl committed barratry, that is not an independent basis for denying Pohl
recovery on his claims in this lawsuit. Kassab’s desire to focus on allegations of barratry is part
of his strategy to distract and prejudice the jury against Pohl through Kassab’s repetitive,
inaccurate, and inflammatory claims that Pohl is a criminal or has violated felony crkiminal statutes.
Kassab’s attempts to use his allegations of barratry as a defense are novell and without legal
support. Kassab cannot cite to any Texas cases involving a claim for thceft of trade secrets or a
claim for conversion where barratry was found to be an affirmatisve defense to those claims.
Instead, what Kassab has pointed to are cases where courts have stated that they will not enforce
a contract that is void for illegality. The defenses of illegality and unlawful acts are discussed
more thoroughly below. See infra Part II(B)(1). But the Court should not be confused by Kassab’s
attempt to cite inapplicable caselaw in this context. Pohl is not seeking to enforce any client
contract, nor is he seeking to recover the procaeeds generated under any of those client contracts.
Because it does not constitute a defense and has not been explicitly pled as a defense, the Court
should find that establishing barratry eis not a standalone defense to Pohl’s claims.
3. Kassab should not be fpermitted to prejudice the jury through unconnected allegations
of prior bad acts that Kassab has no standing to assert.
The rules against barratry can only be enforced by specific parties against a lawyer through
specific and limited avenues. The Texas State Bar can enforce disciplinary rules involving barratry
through disciplincary proceedings brought against a lawyer. The State of Texas can enforce
criminal statutes prohibiting barratry by bringing criminal charges against a lawyer. And finally,
Texas allows clients who were solicited through barratry to sue under a civil statute. Kassab has
no standing under any of these three avenues to allege and prove that Pohl committed barratry.
If the Court permits Kassab to introduce evidence to try and establish that barratry
occurred, it would be allowing Kassab to enforce the disciplinary rules, criminal statutes, or the
civil liability statute even though Kassab would have no ability to do so in any other proceeding.
This would be improper and distract from the issues that the jury must decide in this case.
To the extent that evidence concerning, relating to, or mentioning barratry is permitted, it
should be limited, and be accompanied by a limiting instruction, to evidence thatk can be directly
linked to the plaintiffs who seek civil liability against Pohl (which are all reprelsented by Kassab).
These are the only clients for which allegations of barratry have any placusible bearing. But this
should be very carefully limited to prevent the use of the evidence as simproper character evidence
or to suggest that Pohl procured all of his clients through barratry.
B. Ten of Kassab’s so-called affirmative defenses fail as a matter of law.
In his eighth amended answer, Kassab asserted numerous affirmative defenses. As a matter
of law, ten of those defenses do not exist or do not apply in this case. To streamline the issues
presented at trial, the Court should find that the rten defenses discussed below are not legally viable
and will not be considered at trial. 
1. Kassab’s Unlawful Acts Deoctrine defense—whether called illegality, criminal acts, or
“in pari delicto”—is preccluded under clear Texas Supreme Court Precedent.
Kassab’s current pleading asserts a defense of “Illegality/Criminal Acts,” but his prior
answer described it as thep “Illegality/Criminal Acts/Unlawful Acts Rule” defense. Compare
Kassab’s Eighth Answer, at 4, with Kassab’s Seventh Answer, at 4. Separately, Kassab also asserts
a defense of “in pcairi delicto.” See Kassab’s Eighth Answer, at 4. Regardless of the title Kassab
uses to descroibe it, the unlawful acts doctrine has been supplanted under Texas law. As for
illegality and in pari delicto, they apply when a plaintiff seeks to enforce an illegal contract.
Because none of Pohl’s claims involve a request to enforce any contract—let alone one that is
allegedly illegal—the defenses of in pari delicto and illegality have no application to this case.
First, to the extent that the unlawful acts doctrine could have any relevance, it is preempted
by Texas’s proportionate responsibility statute. In Dugger v. Arredondo, the Texas Supreme Court
considered “whether the common law unlawful acts doctrine is available as an affirmative defense
under the proportionate responsibility framework.” 408 S.W.3d 825, 831–32 (Tekx. 2013). The
Court found that “it is not,” and that “[t]he plain language of section 33.003 cllearly indicates that
the common law unlawful acts doctrine is no longer a viable defense.” Idc. at 832.
Pohl laid out the preemption problem in his response to Kasssab’s affirmative motion for
traditional summary judgment.6 Kassab likely changed his description of this defense due to that
prior briefing and Pohl pointing out that Kassab acknowledged this defense was preempted in prior
briefing.7 However, Kassab describing the defense differently does not make a difference. While
this defense would fail on the merits, that question is not reached, as the defense is preempted. A
defense does not become un-preempted becauase a party calls it a different name.
Second, there are other related defenses that go by the name of “illegality,” or sometimes
“in pari delicto.” Kassab’s assertionse of these defenses also fail as a matter of law. Those defenses
apply to a party seeking to enforfce an illegal contract. Because it is undisputed that Pohl is not
attempting to enforce any coyntract, let alone an illegal contract, these defenses do not apply.
Illegality or theC in pari delicto defense apply when a party comes into court seeking to have
the court enforce ana illegal agreement. See Jefferson Cnty. v. Jefferson Cnty. Constables Ass’n,
546 S.W.3d 661f, 666 (Tex. 2018) (discussing illegality defense); Geis v. Colina Del Rio, LP, 362
S.W.3d 1U00, 106 (Tex. App.—San Antonio 2011, pet. denied) (“The defense of in pari delicto
requires Texas Courts, as a general rule, to decline to enforce illegal contracts when the contracting
6 Pohl incorporates that briefing and its evidence as it pertains to the issue of the Unlawful Acts Doctrine. See
Plaintiffs’ Response In Opposition to the Traditional Motions for Summary Judgment Filed by the Kassab Defendants
and the Nicholson Defendants, at 19–27, filed Sept. 12, 2022.
7 See Plaintiffs’ Response to the Kassab Defendants’ Motion to Abate Trial Setting, at 6–7, filed Sept. 15, 2022.
parties are equally blameworthy.”). These defenses are related to the unlawful acts doctrine. See
Dugger, 408 S.W.3d at 829 (unlawful acts “doctrine originated with the principle of in pari delicto
or ‘unclean hands’ in the contract context, but was extended to tort causes of action”).
Pohl has not asserted any contract claim against Kassab, nor do any ofk his tort claims
involve enforcing the terms of any allegedly illegal contract. See generallly Pohl’s Amended
Petition. Even if the enforceability of Pohl’s client fee agreements were rcelevant, that condition is
satisfied here. The Texas legislature provided that agreements prsocured through barratry are
voidable, not void, and that a client may obtain a finding that voids the agreement.8 It is undisputed
that not a single one of Pohl’s client fee agreements have been declared void.
Because the unlawful acts doctrine has been preempted it cannot apply, regardless of what
name Kassab uses to describe it. And because there is no contract the Court could decline to
enforce, the defenses of illegality and in pari daelicto do not apply as a matter of law. Alternatively,
even if such defenses could apply, they would not be triggered absent the statutory finding that a
contract was void, which has not ocecurred and cannot occur in this lawsuit. For these and the
reasons discussed above, the Coufrt should find that these defenses do not apply as matter of law.
2. The defense of “jyustification” is not available as a matter of law.
Kassab also asserts the defense of “justification.” Kassab’s Eighth Answer, at 3. Kassab
presumably contendas that he was “justified” in stealing Pohl’s client lists and other trade secrets
because he beliefves Pohl committed barratry. The problem with this theory is that “justification”
is not a defense to Pohl’s claims. Even if it were, Kassab could not arguably be “justified” in
stealing Pohl’s trade secrets because Kassab does not allege that Pohl’s barratry involved Kassab.
8 See Tex. Gov’t Code § 82.0651(a) (stating that “client may bring an action to void a contract for legal services that
was procured as a result of conduct” often described as barratry).
10
Justification is an affirmative defense to a claim of tortious interference with contract. See
Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 210 (Tex. 1996) (describing defense); Knox v.
Taylor, 992 S.W. 2d 40, 59 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (justification is an
affirmative defense to tortious interference). “Justification” is not a recognized dekfense to theft of
trade secrets, conversion, or conspiracy. The defense is an assertion that the deflendant was legally
justified in interfering with the plaintiff’s contract through either a contracctual or legal right. See
Tex. Beef Cattle, 921 S.W.2d at 210. It is not a generally available dsefense to all torts.9 Even for
claims where the justification is available as a defense, if a party’s acts “are tortious in themselves,
then the issue of privilege or justification never arises.” See Prudential Ins. Co. of Am. v. Fin.
Review Servs., Inc., 29 S.W.3d 74, 81 (Tex. 2000).
Even if Texas recognized “justification” as a defense to claims of theft of trade secrets,10
conversion, or conspiracy, Kassab has not anad could not allege a basis on which to assert such a
defense. First, Pohl’s allegations are that Kassab’s actions were tortious in themselves, and thus,
justification does not apply. See Prudeential, 29 S.W.3d at 81. Second, Kassab cannot legitimately
contend that Pohl took any actionf against them or that involved them before they committed the
torts that form the basis of Pyohl’s claim. The notion that Kassab was “justified” in committing
torts to obtain confidenCtial trade secrets so he could pursue claims of barratry, on behalf of third
9 There is one case, previously cited by Kassab, that states justification is an affirmative defense in the antitrust context.
See Money Mastefrs, Inc. v. TRW, Inc., No. 05-98-02017-CV, 2003 WL 152770, at *5 (Tex. App.—Dallas Jan. 23,
2003, pet. denied). However, this case further supports the conclusion that justification is not a generally applicable
defense that can be asserted against any tort claim. In finding that “[j]ustification is an affirmative defense to both an
antitrust claim and a claim for tortious interference,” the court cited to a specific statute that provides that a party is
justified in engaging in activities that may otherwise violate antitrust law if those activities are required under certain
statutory or regulatory authority. See id. (citing Tex. Bus. & Com. Code § 15.05(g)). Pohl does not dispute that the
Texas legislature could create a statutory justification defense to additional claims. However, the legislature has not
extended the applicability of the defense of justification to any of the claims asserted by Pohl in this case.
10 Kassab has also argued that “Texas courts have considered the defense in relation to theft of trade secrets” in his
prior briefing and cited to one case. See Lamont v. Vaquillas Energy Lopeno Ltd., LLP, 421 S.W.3d 198 (Tex. App.—
San Antonio 2013, pet. denied). While that case involved a claim for theft of trade secrets, the defense of justification
was not applied to that claim, rather, the court applied it to a tortious interference claim and stated that “[l]egal
justification or privilege ‘is an affirmative defense to tortious interference with contract.’” See id. at 218.
11
parties, fails as a matter of law and as a matter of logic. To the extent that Kassab argues that he
was justified in engaging in this tortious conduct on behalf of clients that did not exist at the time
he committed the relevant tortious activity, there is no support to his interpretation of this defense.
To streamline the issues presented at trial, the Court should find that this defense fkails legally.
3. The so-called defense of “Immunity under Rule 17.09 of thel Texas Rules of
Disciplinary Procedure” does not apply as a matter of law.
Kassab asserts that “Immunity under Rule 17.09 of the Texrais Rules of Disciplinary
Procedure” protects him from liability for his actions in this lawsuiDt. See Kassab’s Eighth Answer,
at 4. However, Kassab misunderstands Rule 17.09. It providess immunity to certain officials, such
as members of the Texas Commission for Lawyer Discipline. It also limits a plaintiff’s ability to
file a lawsuit predicated on a person’s involvement in the grievance process when that person is
the complainant or a witness. However, because Pohl’s claims, and thus the lawsuit, are not
predicated on Kassab’s involvement in the Mgrievance process, Rule 17.09 does not apply.
Rule 17.09 provides that: “Noo lawsuit may be instituted against any Complainant or
witness predicated upon the filing ocf a Grievance or participation in the attorney disciplinary and
disability system.” TEX. RULES DISCIPLINARY P. R. 17.09. It does not provide immunity simply
because there is some connection between a case and the grievance process. The immunity that is
provided under the rule is limited to certain officials connected to the State Bar, and such officials
“are immune fromc suit for any conduct in the course of their official duties.” Id. For a lawsuit to
be “predicate o d upon” something, that something must be what the lawsuit is based or founded on.11
Kassab’s involvement in the grievance process does not give rise to Pohl’s claims. Pohl’s
claims against Kassab are based on his misappropriation and conversion of Pohl’s property—
11 Predicate, Merriam-Webster.com Dictionary, https://www.merriam-webster.com/dictionary/predicate (accessed
Nov. 28, 2022) (listing “FOUND, BASE” as a definition of “predicated”).
12
including his improper purchase and/or acquisition of Pohl’s client list, which included actual
attorney-client fee agreements. See generally Amended Petition. These claims accrued upon
Kassab’s acquisition of the client information or use of the client information to solicit those
clients. Thus, Pohl’s claims accrued prior to any grievance being filed by Kassakb. Because the
claims asserted pre-date the filing or participation in any grievance by Kassab, lthis lawsuit cannot
have been “predicated upon the filing of a Grievance,” and Rule 17.09 doces not apply.
Based on Kassab’s prior briefing on this subject, he appears tos believe (or wish through his
selective quotations) that Rule 17.09 provides absolute immunity to him for anything he can
connect to the grievance process—even though he is not a State Bar official. But that is not what
the rule provides. A simple hypothetical shows how this lawsuit is not predicated on Kassab’s
participation in the grievance process. If Kassab had never filed or participated in the grievance
process, would Pohl’s claims in this lawsuit satill exist? Given that Pohl’s claims accrued prior to
Kassab’s participation in the grievance process (starting in 2028), the answer is clearly yes. The
fact that Kassab has taken the positioen on multiple occasions that Pohl’s claims accrued prior to
2018 and are barred by limitationfs shows that the fact that the basis or predicate of Pohl’s claims
predates the grievances is noyt something that can be disputed.12
Pohl anticipateCs that Kassab may argue that a small portion of Pohl’s damages are
connected to the griaevance process, and that this triggers application of Rule 17.09. However, the
fact that there isf some connection that can be drawn between a grievance and a lawsuit does not
implicateU Rule 17.09. There must be a showing that the lawsuit is predicated upon the grievance,
not merely connected to it, especially when the claims accrued prior to the filing of any grievance.
Participating in the grievance process is not a get-out-of-jail-free card for prior wrongful conduct.
12 See, e.g., Kassab’s Traditional Motion for Summary Judgment, at 2, 44–57, filed Aug. 29, 2022 (arguing that Kassab
had conclusively established that Pohl’s claims against Kassab accrued years prior to the filing of this lawsuit).
13
A party’s participation in the grievance process is protected. But a person who commits a tort and
then subsequently files a grievance is not somehow absolved for what they did prior to their
involvement in the grievance process.
Because this lawsuit is not predicated on Kassab’s participation in the grikevance process,
the Court should find that Rule 17.09 does not apply as a matter of law. l
4. Unclean hands is not a defense to legal claims. c
Kassab asserts “unclean hands” as an affirmative defense. Ssee Kassab’s Eighth Answer,
at 3. Here again, Kassab presumably hopes to inject his claims of barratry to muddy the issues in
the trial of this case. But unclean hands is not available as a defense to the claims asserted here,
nor is it applicable to the type of relief currently sought by Pohl.
Texas law provides that unclean hands is an affirmative defense that may bar a party with
unclean hands from obtaining equitable relief. r See Wood v. Wiggins, 650 S.W.3d 533, 556 (Tex.
App.—Houston [1st Dist.] 2021, pet. denied). However, there is both a nexus requirement, and a
requirement that the party invoking tehe defense “must show an injury to himself arising from the
conduct.” Id. “‘The clean hands mfaxim should not be applied when the defendants have not been
seriously harmed and the wryong complained of can be corrected without applying the doctrine.’”
Id. (citation omitted).
Kassab’s usae and dissemination of Pohl’s trade secrets is a bell that cannot be unrung.
Thus, while Pohfl previously pled injunctive relief in his petition, to streamline issues for trial, Pohl
will no longer seek this relief. Because Pohl does not seek any equitable relief, and the defense is
not available to Pohl’s tort claims, the Court should preclude consideration of the “unclean hands”
defense at trial as a matter of law.
To the extent that Kassab can show that the defense still has legal application for some
other reason, the Court can still narrow the issues for trial by finding that Kassab cannot use
14
allegations of barratry, improper solicitation, or other supposed conduct relating to Pohl’s former
and prospective clients to prove up this defense. There is no plausible theory by which that conduct
caused Kassab an injury, rather than an alleged injury to Pohl’s former clients. See Wiggins, 650
S.W.3d at 556 (party asserting defense “must show an injury to himself arising fromk the conduct.”).
Because the defense of unclean hands does not apply to Pohl’s claims orl the relief he seeks,
the Court should find that as a matter of law, the defense has no applicaction or relevance to the
trial in this matter. In the alternative, the Court should find that, as as matter of law, any theory of
unclean hands based on Kassab’s allegations that Pohl committed barratry or other misconduct
relating to Pohl’s former and prospective clients is not relevant, as it did not harm Kassab.
5. The defenses of release, accord and satisfaction, estoppel, and “subject to a valid
contract” are not available as a matter of law.
Kassab’s current answer also purports to assert defenses of “release,” “accord and
satisfaction,” “estoppel,” and “subject to a Mvalid contract.” See Kassab’s Eighth Answer, at 3–4.
However, in his prior summary judgmoent briefing, Kassab acknowledged that “contract-related
affirmative defenses of release, accocrd and satisfaction, estoppel do not apply to Kassab.”13 Pohl
agrees, and thus, this Court should find that because Pohl has not pled a contract claim against
Kassab, the defenses of release, accord and satisfaction, and estoppel do not apply in this case as
a matter of law. See Plaintiff’s First Amended Petition ¶¶ 35–43 (not asserting any claims
sounding in contrcact against Kassab).
As for Kassab’ assertion of the defense of “subject to a valid contract,” this defense appears
to be a rewording of the express contract defense. That defense has no application here as a matter
of law. The express contract defense applies to prevent a plaintiff from recovering in quantum
13 See The Kassab Defendants’ Response to Plaintiffs’ Motion for Partial Traditional and No-Evidence Summary
Judgment, at 16, filed Sept. 12, 2022.
15
meruit when a plaintiff seeks “to recover the reasonable value of services rendered or materials
supplied” but “there is an express contract that covers those services or materials.” See Pepi Corp.
v. Galliford, 254 S.W.3d 457, 462 (Tex. App.—Houston [1st Dist.] 2007, pet. denied). Pohl has
not pled or argued claims that would support such a defense, nor has Kassab madek any allegations
that could plausibly support this defense. l
Because these affirmative defenses relate to claims made in conctract, and Pohl has not
alleged any contract claims against Kassab, the Court should find sthat the defenses of release,
accord and satisfaction, estoppel, and “subject to a valid contract” do not apply as a matter of law.
6. Affirmative defenses of assumption of the risk and contributory negligence are no
longer independent defenses apart from proporrtionate responsibility.
Kassab asserts “assumption of the risk” and “contribution”14 as affirmative defenses. See
Kassab’s Eighth Answer, at 3–4. Neither of these defenses are proper defenses to the claims in
this case. The Texas Supreme Court has dMeclared that “the common law affirmative defenses of
assumption of the risk and contributory onegligence no longer exist under Texas law,” rather, their
“underlying concepts remain relevacnt under Texas’s proportionate-responsibility statute.” Austin
v. Kroger Tex., L.P., 465 S.W.3d 193, 209–10 (Tex. 2015) (footnote and citation omitted). To
narrow the issues at trial, the Court should find that these defenses are not legally viable.
PRAYER
For the recaisons set forth herein, Pohl asks the Court to find that establishing whether
barratry occuorred is not legally relevant to this lawsuit and that Kassab’s affirmative defenses of
unlawful acts; illegality; criminal acts; in pari delicto; justification; immunity under Rule 17.09;
unclean hands; release; accord and satisfaction; estoppel; subject to a valid contract; assumption
of the risk; and contribution are barred as a matter of law.
14 It is unclear what defense Kassab’s reference to “Contribution” could refer to other than contributory negligence.
16
Dated: November 30, 2022 Respectfully submitted,
REYNOLDS FRIZZELL LLP
By: /s/ Jean C. Frizzell
Jean C. Frizzell
State Bar No. 07484650 k
1100 Louisiana St., Suite 3500 r
Houston, Texas 77002 l
Tel. 713.485.7200
Fax 713.485.7250 c
jfrizzell@reynoldsfrizzell.rcom
Attorney for PlaintifDfs Michael Pohl
and Law Office of Michael A. Pohl, PLLC
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this document was served on all counsel of
record pursuant to the Texas Rules of Civil Procedure on this 30th day of November, 2022.
M /s/ Jean C. Frizzell
 Jean C. Frizzell
17
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.
Suni Blue on behalf of Jean Frizzell
Bar No. 7484650
sblue@reynoldsfrizzell.com r
Envelope ID: 70589892
Status as of 12/1/2022 8:34 AM CST
Case Contacts r i
Name BarNumber Email TimestampSubmitted Status
Solace Southwick ssouthwick@reynoldssfrizzell.com 11/30/2022 8:20:45 PM SENT
Zandra EFoley zfoley@thompsogncoe.com 11/30/2022 8:20:45 PM SENT
Andrew Johnson ajohnson@thoumpsoncoe.com 11/30/2022 8:20:45 PM SENT
Benjamin Ritz britz@thompsoncoe.com 11/30/2022 8:20:45 PM SENT
Murray JFogler mfogleyr@foglerbrar.com 11/30/2022 8:20:45 PM SENT
Murray Fogler mfaogler@fbfog.com 11/30/2022 8:20:45 PM SENT
Dale Jefferson 10607900 jefferson@mdjwlaw.com 11/30/2022 8:20:45 PM SENT
Raul Herman Suazo 24003021osuazo@mdjwlaw.com 11/30/2022 8:20:45 PM SENT
Kevin Graham Cain 24012371 cain@mdjwlaw.com 11/30/2022 8:20:45 PM SENT
Misty Davis f mdavis@reynoldsfrizzell.com 11/30/2022 8:20:45 PM SENT
Non-Party Witness Billy Shepherd bshepherd@spcounsel.com 11/30/2022 8:20:45 PM SENT
Lance Kassab p eserve@kassab.law 11/30/2022 8:20:45 PM SENT
Jean C.Frizzell C jfrizzell@reynoldsfrizzell.com 11/30/2022 8:20:45 PM SENT
Harris Wells a l hwells@reynoldsfrizzell.com 11/30/2022 8:20:45 PM SENT
Scott M.Favre scott@favrepa.com 11/30/2022 8:20:45 PM SENT
Lawyer Wade o lawyerwade@hotmail.com 11/30/2022 8:20:45 PM SENT
Andrea MendeUz andrea@kassab.law 11/30/2022 8:20:45 PM SENT
Lance Kassab lance@kassab.law 11/30/2022 8:20:45 PM SENT
David Kassab david@kassab.law 11/30/2022 8:20:45 PM SENT
Nicholas Pierce nicholas@kassab.law 11/30/2022 8:20:45 PM SENT
D Kassab david@kassab.law 11/30/2022 8:20:45 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 11/30/2022 8:20:45 PM SENT
L Kassab lance@kassab.law 11/30/2022 8:20:45 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 11/30/2022 8:20:45 PM SENT"
22,2021-12-07,MSJ,Pohl,Pohl’s MSJ on Kassab Counterclaims,Plaintiffs' Motion for Summary Judgment on Defendants' Counterclaims for Civil Barratry,"Pohl's dispositive motion seeking traditional summary judgment on Kassab's counterclaims for civil barratry based on 242 assigned claims. Filed December 7, 2021, after Kassab's Fourth Amended Answer. This is the principal motion in the CC-1 chain, which was ultimately granted. Attorney: Jean C. Frizzell of Reynolds Frizzell LLP.",CC-1,GRANTED,Phase 2,2021-12-07_MSJ_Pohl-MSJ-on-Kassab-Counterclaims_FILED.pdf,Grant summary judgment dismissing Kassab's counterclaims for civil barratry,"12/7/2021 4:11 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 59800424
By: Ozuqui Quintanilla
Filed: 12/7/2021 4:11 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL AND LAW OFFICE OF § IN THE DISTRICT COURT OF
MICHAEL A. POHL, PLLC, §
Plaintiffs, §
V. § k
§ e
SCOTT FAVRE and SCOTT M. FAVRE PA, § C l
LLC; PRECISION MARKETING GROUP, § HARRIS COUNTY, TEXAS
LLC; LANCE CHRISTOPHER KASSAB and § c
LANCE CHRISTOPHER KASSAB, P.C. d/b/a § r
THE KASSAB LAW FIRM; TINA § s
NICHOLSON and BAKER NICHOLSON, §
LLP d/b/a BAKER NICHOLSON LAW § s
FIRM; and DOUGLAS MONTAGUE III and § s
MONTAGUE PITTMAN & VARNADO, P.A., §
Defendants. § r189TH JUDICIAL DISTRICT
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
ON DEFENDANTS’ COUNTERCLAIMS
Plaintiffs Michael Pohl and Law Officae of Michael A. Pohl (collectively “Pohl”) move for
summary judgment on the Defendants’ counterclaims for civil barratry.
SU e MMARY OF ARGUMENT
Defendants Lance Christfopher Kassab and Lance Christopher Kassab, P.C., d/b/a The
Kassab Law Firm (collectiveyly “Kassab”) assert counterclaims that have already been adjudicated.
Kassab’s clients previoCusly brought these very claims and lost them. Kassab’ counterclaims fail
because they are barred by res judicata, they are not revived by the savings provision of the Texas
Civil Practice fafnd Remedies Code and are accordingly time-barred, and because the purported
assignmeUnts of the claims are invalid and unenforceable.
After purchasing Pohl’s stolen client lists and contact information, Kassab solicited Pohl’s
clients to bring barratry claims. When courts (including this one) found those barratry claims to
be barred by limitations, Kassab obtained purported “assignments” of those claims and asserted
them as counterclaims in this action, contending they had been “revived” pursuant to the savings
provision of Civil Practices and Remedies Code section 16.069. The statutory requirements of
section 16.069 are not met for multiple reasons, and Kassab’s effort to revitalize the stale claims
fails. In addition, civil barratry claims are not legally assignable under Texas lawk. Like a DTPA
claim, a barratry claim is a punitive statutory cause of action that the Texas llegislature has not
explicitly made assignable, and they cannot be freely assigned. Furthcermore, assignments of
causes of action that are made to increase or prolong litigation, and wshich are made in violation of
ethical restrictions on lawyers having an interest in clients’ causses of action—like the assignments
to Kassab here—violate Texas public policy and are void.
STATEMENT OF F BACTS
Pohl is a lawyer who represented various persons and entities in claims arising from motor
vehicle accidents and the British Petroleum Daeepwater Horizon oil spill.1 Pohl engaged Precision
Marketing Group, LLC (“Precision”) to provide public relations services, to gather and preserve
evidence, and to screen and liaise witeh Pohl’s clients and prospective clients.2 By 2014, Pohl had
ceased all efforts to secure additiofnal clients in relation to the Deepwater Horizon oil spill.3
While working for Pyohl, Precision gained access to Pohl’s confidential and proprietary
information and propeCrty, including trade secret materials.4 Defendant Scott Favre, individually
or through Scott M. a Favre PA, LLC (collectively “Favre”), is the managing member of Precision.5
Favre took copfifes of Pohl’s information, stole Pohl’s computers, and misappropriated data.6
1 Sworn Declaration of Michael A. Pohl (the “Pohl Declaration”) ¶ 3, attached as Ex. A.
2 Id. ¶ 4.
3 Id. ¶ 5.
4 Id. ¶¶ 6–7.
5 Id. ¶ 7.
6 Id. ¶¶ 6–8.
In November 2016, Kassab—who specializes in suing other lawyers—purchased Pohl’s
stolen confidential information and property from Favre (with the assistance of other Defendants)
paying $250,000, plus bonuses.7 Kassab took possession of at least some of the information and
property in December 2016.8 Kassab valued Pohl’s stolen and misappropriatked confidential
information and property because, after purchasing it, he used it to contact and slolicit Pohl’s clients
and prospective clients9 and convinced some of them to bring barratry actiocns against Pohl in various
courts in Harris County (the “Barratry Claims”). Kassab’s purchase ansd use of Pohl’s confidential
information and property constitute conversion, violations of tshe uniform trade secrets act, and
because he was acting with others with tortious purpose, conspiracy.
Pohl filed this suit against Kassab and the other Defendants on August 28, 2018.10 At the
time, two lawsuits involving the Barratry Claims were ongoing—the Brumfield Case (which this
Court heard) and the Gandy Case.11 The plaaintiffs in the Brumfield and Gandy Cases alleged,
among other claims, that Pohl committed barratry when soliciting them to bring claims concerning
the Deepwater Horizon oil spill.12 Thee Brumfield and Gandy cases did not go well for Kassab; at
the time Pohl filed this lawsuit, thfe trial courts had granted summary judgment on the vast majority
of the barratry claims, on bayses including limitations, in both cases.13 Since that time, the trial
courts have entered judCgment against all of Kassab’s clients on all claims, and the First Court of
7 November 10, 2016, Agreement, attached as Exhibit 1 to the Pohl Declaration.
8 December 7, 201f6, Email, attached as Exhibit 2 to the Pohl Declaration.
9 Kassab admits using Pohl’s client files (while erroneously claiming that they belonged to Precision) to contact Pohl’s
clients and former clients to solicit them to file claims against Pohl. See Declaration of Lance Christopher Kassab,
attached as Exhibit 1 to Kassab’s Motion to Dismiss, filed October 24, 2018, attached as Ex. B.
10 See generally Pohl’s Original Petition, filed August 28, 2018.
11 Cause No. 2017–38294, Dezzie Brumfield d/b/a LAD Enterprises, et al v. Michael A. Pohl, et al, in the 189th Judicial
District Court of Harris County, Texas (the “Brumfield Case”); No. 459,062-401, Alice Marie Gandy, et al v. Michael
A. Pohl, et al., in the Probate Court No. 2 of Harris County, Texas (the “Gandy Case”).
12 See Plaintiffs’ Fourth Amended Petition, at 74–76, filed on March 15, 2019, attached as Ex. C (filed in Brumfield
Case); Plaintiffs’ Third Amended Petition, at 63–65, filed on June 8, 2018, attached as Ex. D (filed in Gandy Case).
13 See Court Order, dated July 31, 2018, attached as Ex. E (granting take nothing summary judgment against all but
six plaintiffs in Brumfield Case on claims including civil barratry claim); see also Court Order, dated June 26, 2018,
attached as Ex. F (granting take nothing summary judgment on claims in Gandy Case including civil barratry claim).
Appeals has affirmed both judgments in separate opinions.14 The cases are pending on petitions
for review to the Supreme Court of Texas.15
Evidently dissatisfied with the lack of a return on his $250,000 investment, Kassab devised
a scheme to try to circumvent the adverse rulings of this Court and the probate cokurt. Sometime
after Pohl filed the current lawsuit, Kassab apparently obtained from 242 of hlis clients “Limited
Assignment[s]” (the “Assignments”) of the very same barratry claims Kascsab had previously filed
on behalf of those clients.16 All of 242 Assignments reflect the idsentical date—September 28,
2018—and they purport to assign to Kassab “any and all basrratry claims or causes of action
against” Pohl.17 Even accepting the September 28 date reflected on all 242 Assignments as
accurate, by that date, the trial courts had already adjudicated all but two18 of the Barratry Claims.19
Kassab contends that the consideration for the Assignments of his own clients’ claims was
“[a]dditional legal work and the opportunity toa make the client’s case viable.” Although the cases
originally brought by his clients remained pending, Kassab did not substitute in as plaintiff, nor
did he otherwise notify this Court, ethe probate court, or the appellate courts that the original
plaintiffs had purportedly assignefd the Barratry Claims to him.20 The cases are currently pending
on petition for review to they Texas Supreme Court, and Kassab has not notified that Court that
he—rather than the listCed parties—owns a significant number of the pending claims.
14 See Brumfield v. Williamson, --- S.W.3d ---, 01-19-00336-CV, 2021 WL 2149335, at *32 (Tex. App.—Houston
[1st Dist.] May 27f, 2021, pet. filed); Gandy v. Williamson, --- S.W.3d ---, 01-19-00335-CV, 2021 WL 2149833, at *1
(Tex. App.—Houston [1st Dist.] May 27, 2021, pet. filed).
15 Id.
16 Kassab Depo., at 10:13–12:11, attached as Ex. G; Kassab Depo. Exhibit 1, attached as Ex. H (stating Assignments
were effective after this lawsuit was filed). See also Kassab Depo., at 15:6–9 (confirming Kassab brought claims on
behalf of Assignors) & 17:10–19 (confirming Assignors were clients of Kassab at time they executed Assignments);
see also Kassab’s First Amended Objections and Responses to Pohl’s Discovery, at 28, attached as Ex. I.
17 See, e.g., Ex. J (example Assignments [Kassab_079806, Kassab_079885, Kassab_079942]).
18 The Barratry Claims assigned by Assignors Gloria Clemons and Wilber Riggs were resolved at a later date. See
Court Order, dated June 3, 2019, attached as Ex. K (granting judgment on remaining six plaintiffs’ claims and
disposing of “entire case”) (filed in Brumfield Case).
19 Kassab Depo., at 20:2–19 (testifying that all Assignments came from Plaintiffs in the Brumfield and Gandy cases).
20 See, e.g., Kassab Depo., at 20:20–21:6 (confirming Kassab did not notify appellate court of Assignments).
Kassab’s attempt to revive the failed Barratry Claims does not succeed for a number of
reasons, and summary judgment on Kassab’s counterclaims is appropriate.
ARGUMENT AND AUTHORITIES
I. Kassab’s counterclaims are barred by res judicata. k
Kassab admits that his counterclaims are the very same claims as thosle resolved by prior
final judgments on the merits.21 Res judicata applies to such claims, can t d the prior judgments
dismissing the Barratry Claims on the basis of limitations preclude Ksassab from re-litigating them
through his counterclaim in this lawsuit. 
“Res judicata prevents parties and those in privity with them from relitigating a case that a
competent tribunal has adjudicated to finality.” Houtex Ready Mix Concrete & Materials v. Eagle
Const. & Envtl. Services, L.P., 226 S.W.3d 514, 518 (Tex. App.—Houston [1st Dist.] 2006, no
pet.). “Res judicata requires: (1) a prior final judgment on the merits by a court of competent
jurisdiction, (2) identity of parties or those in privity with them, and (3) a second action based on
the same claims that were raised or ceould have been raised in the first action.” Id. at 519.
A judgment is final for pfurposes of res judicata even if it is appealed. See Gonzalez v.
Guilbot, 315 S.W.3d 533, 53y6 n.3 (Tex. 2010). A decision based on the statute of limitations is a
decision on the merits.C See Igal v. Brightstar Info. Tech. Group, Inc., 250 S.W.3d 78, 90 (Tex.
2008); Livingston va. U.S. Bank Nat’l Ass’n, 02-19-00185-CV, 2020 WL 1646741, at *3 (Tex.
App.—Fort Wofrth Apr. 2, 2020, no pet.) (“the fact that the first suit was resolved based on what
AppellanUts contend was a “procedural device”—statute of limitations—has no bearing on the
preclusive effect of res judicata.”). A party is in privity with a party to a prior action when the
party is “a successor-in-interest, deriving its claim through a party to the prior action.” Samuel v.
21 See Kassab Depo., at 20:2–19, attached as Ex. G.
Fed. Home Loan Mortg. Corp., 434 S.W.3d 230, 235 (Tex. App.—Houston [1st Dist.] 2014, no
pet.); Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 653 (Tex. 1996) (finding successors in interest
were in privity with plaintiffs to prior lawsuit).
Kassab’s counterclaim satisfies all three elements of res judicata. First,k there are final
judgments on the merits for Assignors’ Barratry Claims—those claims were rlejected by the trial
courts (including this Court) which issued final judgments stating that Acssignors take nothing on
their claims.22 Although those judgments are currently before the sSupreme Court of Texas on
petitions for review,23 the pendency of those petitions does not asffect the finality of the judgments
for purposes of res judicata. See Gonzalez, 315 S.W.3d at 536 n.3.
Second, Kassab is not merely in privity with the Assignors, he is actually reasserting their
failed claims. “Privity” can hardly be challenged in this circumstance. Given that Kassab is “a
successor-in-interest, deriving [his] claim tharough a party to the prior action,” privity is well-
established. Samuel, 434 S.W.3d at 235. 
Third, Kassab’s counterclaime is an “action based on the same claims that were raised or
could have been raised in the firstf action.” Houtex, 226 S.W.3d at 519. Again, Kassab admits that
the Barratry Claims in Kassayb’s counterclaim are the same claims asserted and rejected in the prior
actions.24 C
22 See Court Order, dated July 31, 2018, attached as Ex. E (granting take nothing summary judgment against all but
six plaintiffs on cflaims including the civil barratry claim) & Court Order, dated June 3, 2019, attached as Ex. K
(granting summary judgment on remaining six plaintiffs’ claims and disposing of “entire case”) (both filed in
Brumfield Case); see also Court Order, dated June 26, 2018, attached as Ex. F (granting take nothing summary
judgment on multiple claims including the civil barratry claim) & Court Order, dated June 24, 2019, attached as Ex.
L (granting non-suit on remaining alternative negligence claims and stating that “final judgment is entered”) (both
filed in Gandy Case). The orders in the initial partial summary judgment rulings from the two courts became final
upon the courts issuing orders that resolved the remaining issues in the respective cases. See Newco Drilling Co. v.
Weyand, 960 S.W.2d 654, 656 (Tex. 1998).
23 See Brumfield v. Williamson, --- S.W.3d ---, 01-19-00336-CV, 2021 WL 2149335, at *32 (Tex. App.—Houston
[1st Dist.] May 27, 2021, pet. filed); Gandy v. Williamson, --- S.W.3d ---, 01-19-00335-CV, 2021 WL 2149833, at *1
(Tex. App.—Houston [1st Dist.] May 27, 2021, pet. filed).
24 See Kassab Depo., at 20:2–19, attached as Ex. G (confirming that the Barratry Claims Kassab was assigned had
been asserted on behalf of the Assignors in prior litigation).
Because the Assignors’ Barratry Claims are subject to final judgments, Kassab is in privity
with the Assignors, and Kassab’s counterclaims assert Assignors’ Barratry Claims that have been
resolved by final judgments, res judicata applies and prevents Kassab from recovering on his
counterclaims. k
II. Kassab’s counterclaims are barred by limitations. C l
Kassab’s counterclaims for civil barratry are barred by limitatiocns because they accrued
more than four years before Kassab filed the counterclaims. Kasssab does not dispute that the
underlying Barratry Claims are barred by limitations; instead, he asserts that section 16.069 of the
Civil Practice and Remedies Code revives claims purportedly assigned to him. Section 16.069
does not revive the claims.
As fully argued in both the Brumfield Case and the Gandy Case, a claim for barratry
accrues when a potential client is improperly solicited. See Gandy v. Williamson, --- S.W.3d ---,
01-19-00335-CV, 2021 WL 2149833, at *13–14 (Tex. App.—Houston [1st Dist.] May 27, 2021,
pet. filed). The date of a client’s esignature on a contract can be used to demonstrate when
solicitation occurred and that a clfaim for barratry accrued prior to the date of that contract. See id.
at *14. Claims for civil barryatry are subject to a statute of limitations of up to four years. See id.
at *12–13. If a claimaCnt alleging barratry did not enter into a contract as the result of the alleged
barratry, the claim afor barratry is governed by a two-year limitations period. See id. at *12; see
also TEX. GOVf ’fT CODE § 82.0651(c).
AUs Pohl established in the Brumfield and Gandy cases, all but two of the alleged
Assignors25 signed contracts no later than May 2013.26 Accordingly, any solicitation must have
25 Those Assignors are Gloria Clemons and Wilber Riggs.
26 Gandy v. Williamson, --- S.W.3d ---, 01-19-00335-CV, 2021 WL 2149833, at *7 (Tex. App.—Houston [1st Dist.]
May 27, 2021, pet. filed); Brumfield v. Williamson, --- S.W.3d ---, 01-19-00336-CV, 2021 WL 2149335, at *7 (Tex.
App.—Houston [1st Dist.] May 27, 2021, pet. filed).
occurred no later than May 2013, which is more than five years before Kassab filed his
counterclaims. Regardless of whether a two-year or four-year statute of limitations applies, the
Barratry Claims were barred no later than May 2017—prior to the initiation of this lawsuit or
Kassab asserting his counterclaim.27 k
It is not disputed that Assignors Gloria Clemons and Wilber Riggs ldid not enter into
contracts with Pohl and that they could not have been solicited after 2014c.28 Thus, under the two-
year statute of limitations applicable to a barratry claim not resulting ins a contract, claims stemming
from the alleged solicitation of Assignors Gloria Clemons ands Wilber Riggs are barred by the
statute of limitations running no later than 2016. See Gandy, 2021 WL 2149833, at *12.
A. Section 16.069 does not apply to Kassab’s counterclaim.
Kassab contends that section 16.069 of the Civil Practice and Remedies Code revives his
counterclaim despite the applicable statute of li r mitations.29 That statute provides that:
If a counterclaim or cross claim arises out of the same transaction or occurrence
that is the basis of an action, a paorty to the action may file the counterclaim or cross
claim even though as a separaete action it would be barred by limitation on the date
the party’s answer is requirecd.
TEX. CIV. PRAC. & REM. CODE § 16.069(a).
There are at leaspt three reasons why section 16.069 does not apply to Kassab’s
counterclaim. First, the Barratry Claims that make up the counterclaims, do not arise out of the
same transactionsc or occurrences that are the bases for Pohl’s action as required by the statute.
Second, Kassoab did not assert a valid counterclaim within the 30-day time limit required. And
27 See generally Pohl’s Original Petition (filed August 28, 2018).
28 Compare Defendants’ Motion for Summary Judgment on Remaining Six Plaintiffs’ Claims, at 1, 4 (dated April 26,
2019), attached as Ex. M (arguing that no contracts were entered into and “the remaining six Plaintiffs could not have
been solicited by Pohl or Williamson, to the extent they were solicited at all, later than 2014”), with Certain Plaintiffs'
Response to Defendants’ Motion for Summary Judgment on Six Plaintiffs Claims, at 2, 5–6 (dated May 24, 2019),
attached as Ex. N (not disputing that no contracts were entered and that alleged solicitation occurred no later than
2014) (both filed in Brumfield Case). See also Pohl Declaration ¶ 5, attached as Ex. A.
29 See Kassab’s Fourth Amended Answer and Counterclaim, at 12 (filed Oct. 13, 2021) (“Kassab’s Counterclaim”).
third, section 16.069 cannot be used to revive stale claims assigned after a lawsuit is commenced.
The purpose of section 16.069—to protect against a tactical delay of a lawsuit until an adversary’s
potential counterclaim grew stale—would be upended if a claim assigned after a lawsuit was
initiated could trigger the section’s provisions. k
1. The Barratry Claims do not arise of out of the s
amle transaction or
occurrence as Pohl’s claims.
Section 16.069 “is a savings clause, ‘intended to prevent a plainr itiff from waiting until an
adversary’s valid claim arising from the same transaction wasD barred by limitations before
asserting his own claim.’” Pitts & Collard, L.L.P. v. Schechtser, 369 S.W.3d 301, 323–24 (Tex.
App.—Houston [1st Dist.] 2011, no pet.) (citation omitrted); TEX. CIV. PRAC. & REM. CODE §
16.069(a) (requiring that “a counterclaim or cross claim arises out of the same transaction or
occurrence that is the basis of an action”). To dletermine whether this requirement is satisfied,
courts use a “logical relationship test,” whiMch “is met when the same facts, which may or may not
be disputed, are significant and logicallyo relevant to both claims.” Schechter, 369 S.W.3d at 324.
In other words, “[t]he essential factsc on which the counterclaim is based must be significantly and
logically relevant to both claims.” Smith v. Ferguson, 160 S.W.3d 115, 120 (Tex. App.—Dallas
2005, pet. denied).
The facts “significant and logically relevant” to the purportedly assigned claims for civil
barratry are in noc way relevant to Pohl’s claims of conversion and theft of trade secrets. The facts
essential to the Barratry Claims—determining whether Pohl improperly solicited the Assignors in
2012–2014—are not significant or relevant to Pohl’s claims regarding Kassab’s 2016 purchase
and subsequent use of Pohl’s stolen property. Because Kassab’s counterclaims do not arise out of
the same transaction or occurrence as Pohl’s claims, section 16.069 does not apply.
Courts have refused to apply section 16.069 in cases involving much more related claims
than the counterclaims Kassab asserts. In Freeman v. Cherokee Water Co., the court held that a
claim requesting interpretation of a particular provision in a deed and a counterclaim attacking the
validity or legality of the entire deed did not satisfy the logical relationship test. k See 11 S.W.3d
480, 483 (Tex. App.—Texarkana 2000, pet. denied); cf. also Wright v. Matthewls, 26 S.W.3d 575,
577 (Tex. App.—Beaumont 2000, pet denied) (finding that counterclaicm for breach of a sales
contract and action to quiet title did not arise “out of same transactsion or occurrence,” because
quiet title claim arose out of filing of contract in property recordss, not the contract itself).
Similarly, in T&C Constr., Ltd. v. Brown Mech. Services, Inc., the First Court of Appeals
applied the logical relationship test to a dispute between a contractor and subcontractor involving
two projects (Project 1 and Project 2) between the parties. 01-19-00041-CV, 2020 WL 3866659,
at *5–6 (Tex. App.—Houston [1st Dist.] Jauly 9, 2020, no pet.). The jury found that the
subcontractor was overpaid $14,000 in relation to Project 1 and it was owed $8,000 for Project 2.
Id. at *2–3. The contractor allegedely withheld payment on Project 2 to compensate for the
overpayment on Project 1—the fcommunication of this justification to the subcontractor was
disputed. Id. The subcontrayctor sued the contractor for breach of the Project 2 contract. Id. at *2.
The contractor respondCed with a counterclaim for unjust enrichment “for the remaining alleged
overpayment, $6,609.75” that resulted from subtracting the amount owed on Project 2 from the
overpayment ofnf Project 1. Id. The court found that section 16.609 did not apply because:
[CUontractor]’s claim for unjust enrichment depended on evidence regarding the
payments made on Project 1. [Subcontractor]’s claim for breach of contract
depended on evidence about payments made for a separate job: Project 2. Under
the circumstances presented here, the logical relationship test is not satisfied
because the same facts are not significant and logically relevant to both claims.
Id. at *6.
10
The facts essential to determining whether Pohl improperly solicited the Assignors in
2012–2014 have no bearing on Kassab’s conduct starting in 2016.30 Kassab cannot plausibly argue
that the factual bases for his claims—separated in time by years, involving different parties, and
sharing no common elements of proof—“arise[] out of the same transaction or occkurrence.” TEX.
CIV. PRAC. & REM. CODE § 16.069(a).
Because the same facts are not significant and logically relevant tco both Pohl’s claims and
Kassab’s counterclaim, the logical relationship test is not met, and sesction 16.069 does not apply.
2. Kassab did not assert a valid counterclasim within the time limit required
under section 16.069. s
To revive a claim under section 16.069, it must be arsserted as a counterclaim or cross claim
“not later than the 30th day after the date on which
the party’s answer is required.” TEX. CIV.
PRAC. & REM. CODE § 16.069(b). Kassab’s allegaltion of unspecified “assigned barratry claims”—
without any indication of who assigned thMe claims or fair notice of the facts giving rise to the
claims—does not satisfy the requiremeont to assert a counterclaim within the time prescribed by
section 16.069. c
In Rogers v. Ardella Veigel Inter Vivos Tr. No. 2, the court looked to the requirements of
Rule 47 of the Texas Rules of Civil Procedure to determine whether a party filed a counterclaim
within the period required by section 16.069. See 162 S.W.3d 281, 289 (Tex. App.—Amarillo
2005, pet. deniedc). The court noted that to be a counterclaim, the pleading must provide “fair
notice,” meaning “the allegations must be sufficient to inform a reasonably competent attorney of
the nature and basic issues of the controversy and of the potentially relevant evidence.” Id.
Because there was not sufficient fair notice provided by the pleading to comply with Rule 47, the
court found that section 16.069 did not apply to revive the counterclaims. Id. at 289–90.
30 See Pohl’s First Amended Petition, at 5–12, filed on Nov. 30, 2018 (describing the factual bases for Pohl’s claims).
11
Kassab did not provide fair notice of his counterclaims within the 30-day period required
by section 16.069(b). His counterclaims are devoid of any of the facts giving rise to the claims,
and Kassab does not identify any of the “242 claimants” who originally held the Barratry Claims.31
Kassab does not incorporate any prior factual discussion into his counterclaim.32 kNor could Pohl
reasonably infer when Kassab filed his counterclaim that the factual discussionl that was included
formed the basis of the counterclaim—the allegations appear instead to bec an explanation for why
Kassab believes the lawsuit is retaliatory.33 Until he obtained copiess of the Assignments through
discovery—in 2021—Pohl had no way of knowing that Kassabs’s claims were identical to those
asserted by Kassab’s clients and rejected by the courts.
Kassab’s assertion of anonymous “assigned” claims lacked even the typical notice of the
identities of those behind the claims—Kassab’s counterclaims did not provide fair notice “of the
nature and basic issues of the controversy anda of the potentially relevant evidence.” See Rogers,
162 S.W.3d at 289. Kassab did not assert his counterclaims within the required 30-day period to
revive claims barred by limitations, aend this Court should dismiss Kassab’s counterclaims.
3. The Barraftry Claims assigned to Kassab after this lawsuit was filed
cannot be revived under section 16.069.
Even if Kassab’s counterclaims arose out of the same transaction or occurrence and had
been asserted timely, section 16.069 cannot revive claims assigned after a lawsuit to circumvent
the otherwise appclicable statute of limitations.
“Section 16.069(a) is intended to prevent a party from waiting until an opponent’s valid
claim, arising out of the same transaction or occurrence, is time-barred before asserting its own
claim.” Holman St. Baptist Church v. Jefferson, 317 S.W.3d 540, 545 (Tex. App.—Houston [14th
31 See Kassab’s Counterclaim, at 12.
32 See id.
33 See id. at 11–12.
12
Dist.] 2010, pet. denied) (citations omitted); J.M.K. 6, Inc. v. Gregg & Gregg, P.C., 192 S.W.3d
189, 199 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (“[it] allows those who are already
parties to the action to assert claims against one another that would otherwise be time-barred.”).
Despite the broad text of section 16.069, courts have limited its reach, such kas ruling it does
not revive claims made in response to declarations not requesting affirmative rlelief. See Holman,
317 S.W.3d at 545–46 (citing Ball v. SBC Communications, Inc., 04-0c2-00702-CV, 2003 WL
21467219, at *3 (Tex. App.—San Antonio June 25, 2003, pet. dsenied)). Courts apply the
provisions of the Code Construction Act when construing sections 16.069, and thus, its purpose and
the consequences of a particular interpretation are relevant to determining if section 16.069 should
apply. See Ball, 2003 WL 21467219, at *3–4; TEX. G BOV’T CODE § 311.023.
The court in Ball pointed to the object of section 16.069, its purpose, the consequences of
a particular construction, and the public intearest to find that section 16.069 did not apply to a
counterclaim in response to a declaratory judgment that did not seek affirmative relief, despite
such a counterclaim falling under thee unambiguous terms of section 16.069. See Ball, 2003 WL
21467219, at *3–6. This construfction of 16.069 has been cited favorably and was adopted by the
Fourteenth Court of Appealsy. See, e.g., Swoboda v. Ocwen Loan Servicing, LLC, 579 S.W.3d 628,
637–38 (Tex. App.—HCouston [14th Dist.] 2019, no pet.) (citing to Ball with approval).
When looking at the object of section 16.069, the court in Ball noted how the record did
not show that tfhfe plaintiff had “sought to postpone its lawsuit so that Ball’s claim or claims would
be barredU by limitations.” Ball, 2003 WL 21467219, at *3. The purpose of the statute was not
met, because the situation before it was not where “one of the litigants does not file his cause of
action until a short period before the relevant statute of limitations runs [and][t]he normal period
in which to answer the cause of action and file the counterclaim or cross claim would have been
13
cut short by the statute of limitation[s].” Id. at *4 (citation and quotation omitted). The court
looked to the consequences of the proposed construction to determine that it would be unjust and
unreasonable to construe the statute to make a declaratory judgment on the issues of limitations
fruitless. See id. at *4. Finally, it stated that the public interest would be hinderekd if it permitted
Ball “to circumvent limitations by relying on section 16.069” and allowing “Balll’s private interest
to outweigh the public’s interest in preventing the litigation of stale claimcs.” Id. at *5.
The court’s reasoning in Ball applies here. Kassab’s effort tos use section 16.069 to revive
adjudicated and stale claims that he did not even own until aftser the initiation of a lawsuit fails.
Pohl sued Kassab, not the parties that held the claims barred by limitations.34 Pohl could not have
intended to avoid the application of the statute of limitations because Kassab did not even receive
the purported Assignments until after Pohl filed this lawsuit.35 The object and purpose of section
16.069 would be frustrated by permitting its aapplication to these claims.
III. The Assignments of the Barratry Claims are invalid as a matter of law.
The Assignments of the Baerratry Claims are void because they are impermissible
assignments of statutory punitivef claims, a transparent device to avoid limitations and increase
litigation, and a violation ofy ethical rules. The Court should refuse to endorse the Assignments
and should dismiss theC counterclaims as a matter of law.
Texas law gaenerally prohibits the assignment of punitive statutory claims when the statute
does not expliciftly authorize assignments. A claim for civil barratry is a punitive statutory claim
that is noUt expressly assignable.
34 See generally Pohl’s Original Petition.
35 Compare Pohl’s Original Petition (filed August 28, 2018), with Kassab Depo. Exhibit 1, attached as Ex. H (noting
that purported assignments were “Effective September 24, 2018”).
14
A statutory cause of action that “does not explicitly provide for survival and [when] the
right to recovery . . . is punitive in nature” does not survive a plaintiff’s death and is thus not
assignable.36 See Tex. Farm Bureau Mut. Ins. Co. v. Rogers, 351 S.W.3d 103, 107 (Tex. App.—
San Antonio 2011, pet. denied); see also PPG Indus., Inc. v. JMB/Houston Centerks Partners Ltd.
P’ship, 146 S.W.3d 79, 82 (Tex. 2004) (“the personal and punitive aspects of DlTPA claims cannot
be squared with a rule allowing them to be assigned as if they were mere cproperty”).
In PPG, the Court looked at four factors to determine the assisgnability of a statutory cause
of action:37 (1) the text of the statute; (2) the purpose of thes statute; (3) related common-law
principles; and (4) whether the assignment may increase or distort the litigation. PPG, 146 S.W.3d
at 83–92. For the first factor, the Court found it significant that the DTPA statute did not explicitly
provide for assignment of a claim, even though the legislature knew how to make such a claim
assignable. Id. at 84. Because the statute wasa silent on the issue of assignments of a DTPA claim,
the Court turned to the other three considerations.
In looking at the statute’s puerpose, the Court said that “[w]hile the DTPA allows the
attorney general to bring consumfer protection actions, one of the statute’s primary purposes is to
encourage consumers themseylves to file their own complaints.” Id. It also notes that the protective
purpose of the DTPA mCay be thwarted by assignments, because “[c]onsumers are likely to be at a
severe negotiating disadvantage with the kinds of entrepreneurs willing to buy DTPA claims cheap
and settle themf fdear.” Id. at 86. The Court considered related common-law principles and said
that “the aUssignability of most claims does not mean all are assignable” and that “Courts addressing
assignability have often distinguished between claims that are property-based and remedial and
36 Under Texas law, a claim must be capable of surviving the plaintiff’s death to be assignable. See State v. Oakley,
227 S.W.3d 58, 61 (Tex. 2007); see also PPG Indus., Inc. v. JMB/Houston Centers Partners Ltd. P’ship, 146 S.W.3d
79, 92 n.58 (Tex. 2004).
37 Factors 2–4 only came into play if the statute was silent on the issue of assignability. PPG, 146 S.W.3d at 83–92.
15
claims that are personal and punitive, holding that the former are assignable and the latter are not.”
Id. at 87 (emphasis in original) (footnotes omitted). Finally, the Court noted that allowing these
assignments could “increase or distort litigation.” Id. at 90.
The Court’s analysis in PPG regarding the assignability of DTPA claimsk also applies to
the assignability of barratry claims in this case. The statute creating a civil lcause of action for
barratry does not provide for assignment of the claim. See TEX. GOV’T CcODE § 82.0651. The fact
that the legislature did not provide for assignment “can be significanst” and provides the starting
point for a court’s analysis. See PPG, 146 S.W.3d at 84. s 
The civil barratry statute’s purpose is analogous to the DTPA’s purpose, as they both
provide private civil remedies to a specific class of individuals for conduct that the State otherwise
polices. Compare id. (“DTPA allows the attorney general to bring consumer protection actions”
and noting that DTPA complaints were limaited to “consumers”), with TEX. GOV’T CODE §
82.0651(a) (providing private cause of action to a “client” for violations of criminal provisions).38
Just as the Court noted that the typees of “entrepreneurs” that will buy DTPA claims will place
consumers at a disadvantage, as fconsumers will not know the value of their claims, so too are
clients at a disadvantage in eyvaluating the value of their barratry claims. See PPG, 146 S.W.3d at
86. Lawyers like KassCab are in a position to take advantage of clients by purchasing assignments
far below their potential value given the statutory penalties.
DTPA fafnd civil barratry claims are also analogous in that they are both personal and
punitive iUn nature. See PPG, 146 S.W.3d at 88–89; TEX. GOV’T CODE § 82.0651. The DTPA is
38 Both statutes state their purpose in similar language. See TEX. BUS. & COM. CODE § 17.44(a) (stating purpose is
“to protect consumers against false, misleading, and deceptive business practices, unconscionable actions, and
breaches of warranty and to provide efficient and economical procedures to secure such protection.” (emphasis
added)); TEX. GOV’T CODE § 82.0651(e) (stating purpose is “to protect those in need of legal services against unethical,
unlawful solicitation and to provide efficient and economical procedures to secure that protection.” (emphasis added)).
16
concerned with the “deceivers and the deceived,” and a claim for barratry is concerned with the
solicitor and the solicited, giving both types of claims “a personal aspect that cannot be squared
with a rule that allows assignment.” See PPG, 146 S.W.3d at 91. Furthermore, a right to collect
a penalty is personal. Cf. id. at 878 n.32. A claim for civil barratry is punitive beckause it provides
for a $10,000 penalty and return of fees paid independent of “actual damag
esl.” See TEX. GOV’T
CODE § 82.0651. Penalties are by their nature punitive. See In re Xeroxc Corp., 555 S.W.3d 518,
530 & n.69 (Tex. 2018). The penalties for civil barratry and right thse return of fees are punitive
in nature and are in contrast with “remedial” claims that are msore likely to be assignable. See
PPG, 146 S.W.3d at 87.
Because civil barratry claims are personal and punitive in design, they are not assignable,
and this Court should find that the Assignments of the Barratry Claims to Kassab are void and
without effect. a
B. The Assignments violate public policy because they increase and prolong
litigation and were procured in violation of ethical rules.
Because Kassab procured tche Assignments for his counterclaim to evade the statute of
limitations and in violation of his ethical obligations, the Assignments of the Barratry Claims are
void as they violate considerations of equity and public policy.
“[T]he assignability of most claims does not mean all are assignable; exceptions may be
required due to eqcuity and public policy.” PPG, 146 S.W.3d at 87 (emphasis in original) (footnotes
omitted). The Texas Supreme Court has provided that “assignments may be invalidated on public
policy grounds.” See Sw. Bell Tel. Co. v. Mktg. on Hold Inc., 308 S.W.3d 909, 916 (Tex. 2010).
“[C]ourts should inquire as to whether there are notions of equity and public policy that would
vitiate the assignment of the claim under the circumstances,” including the circumstances in a
17
“particular case.” See Am. Homeowner Pres. Fund, LP v. Pirkle, 475 S.W.3d 507, 518–19 (Tex.
App.—Fort Worth 2015, pet. denied).
Courts may look to equitable considerations to invalidate assignments when the
assignments “tend to increase or prolong litigation unnecessarily” or when an asskignment is used
as a “transparent device” to “increase and distort litigation.” Sw. Bell Tel. Co., l308 S.W.3d at 916;
LAKXN Income, Inc. v. TLC Hosp., LLC, 02-20-00415-CV, 2021 WL 308c5755, at *5 (Tex. App.—
Fort Worth July 22, 2021, no pet. h.) (citing State Farm Fire & Cass. Co. v. Gandy, 925 S.W.2d
696, 708, 711 (Tex. 1996)). A court may also consider whether sthe assignment “has a tendency to
injure the public good.” See Wright v. Sydow, 173 S.W.3d 534, 551 (Tex. App.—Houston [14th
Dist.] 2004, pet. denied) (cleaned up).
The court’s analysis in American Homeowner Preservation Fund, LP v. Pirkle, 475 S.W.3d
507 (Tex. App.–Fort Worth 2015, pet. denieda), is instructive here. Finding that the assignment
before it “work[ed] to encourage litigation, rather than curb it,” and countenanced a sort of
collateral attack on a prior tax judgmeent, the court in that case held that that “notions of equity and
public policy . . . vitiate the assigfnment of the claim under the circumstances.” Id. at 519.
In Wright v. Sydow, tyhe Fourteenth Court of Appeals found assignments of claims invalid
because they injured thCe public good. See 173 S.W.3d 534, 551 (Tex. App.—Houston [14th Dist.]
2004, pet. denied). In that case, the court was confronted with a situation where “[a]proximately
two weeks beffofre they executed the Settlement Agreement, [two parties] secretly assigned their
claims toU [a third party] solely to circumvent the releases in the Settlement Agreement.” Id. at
552. The court found that “under the circumstances of this case, the assignments violate the strong
public policy of this State favoring voluntary settlement agreements and are void.” Id. at 553.
18
The Assignments here are similarly void. Kassab is attempting to use the Assignments to
avoid the application of the statute of limitations in a manner that increases and promotes litigation,
rather than curbing it. The sole purpose of the Assignments was to circumvent the statute of
limitations and promote further litigation. Assignments that injure the public gookd such as these
should be rejected. l
Finally, in obtaining these Assignments, Kassab violated the ethiccal rules governing Texas
lawyers. The Assignments are between Kassab and his clients.39 Thsey concern causes of action
and the subject matter of litigation where Kassab represented thsose clients.40 Such an assignment
is a prohibited transaction. See TEX. DISCIPLINARY R. OF PRgOF’L CONDUCT 1.08(h) (providing that
generally “[a] lawyer shall not acquire a proprietary interest in the cause of action or subject matter
of litigation the lawyer is conducting for a client”). The Court should refuse to recognize
assignments made in violation of ethical rulesa.
PRAYER
For the foregoing reasons, Pohel requests that the Court grant summary judgment dismissing
Kassab’s counterclaims. f
39 See supra Note 16.
40 See supra Notes 16 & 21.
19
Dated: December 7, 2021 Respectfully submitted,
REYNOLDS FRIZZELL LLP
By: /s/ Jean C. Frizzell
Jean C. Frizzell
State Bar No. 07484650 k
1100 Louisiana St., Suite 3500 e
Houston, Texas 77002 l
Tel. 713.485.7200
Fax 713.485.7250 c
jfrizzell@reynoldsfrizzell.rcom
Attorney for PlaintifDfs Michael Pohl
and Law Office of Michael A. Pohl, PLLC
CERTIFICATE OF SERrVICE
I hereby certify that a true and correct copy of this document was served on all counsel of
record pursuant to the Texas Rules of Civil Procedure on this 7th day of December, 2021.
M /s/ Jean C. Frizzell
 Jean C. Frizzell
20
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.
Suni Blue on behalf of Jean Frizzell
Bar No. 7484650
sblue@reynoldsfrizzell.com r
Envelope ID: 59800424
Status as of 12/7/2021 4:44 PM CST
Case Contacts r i
Name BarNumber Email TimestampSubmitted Status
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com s12/7/2021 4:11:54 PM SENT
Andrew J. Sarne asarne@krcl.com g12/7/2021 4:11:54 PM SENT
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Todd Taylor C ttaylor@jandflaw.com 12/7/2021 4:11:54 PM SENT
Lance Kassab a l eserve@kassab.law 12/7/2021 4:11:54 PM SENT
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Kathryn Laflin KLaflin@KRCL.com 12/7/2021 4:11:54 PM SENT"