filing_id,date,doc_type,party,description,doc_type_detail,procedural_posture,chain,outcome,phase,filename,relief_requested,full_text
59,2023-09-15,OBJ,Kassab,Objection to proposed final judgment,"Kassab's Objections to Pohl's Proposed Final Judgment, challenging exemplary damages, recoverability of attorneys' fees as actual damages, double recovery of unjust enrichment and market value, joint and several liability based on conspiracy, and indirect misappropriation theory","Filed September 15, 2023 in the 281st Judicial District Court, Harris County, Cause No. 2018-58419. Filed 10 days after Pohl's Motion for Entry of Final Judgment, objecting to specific elements of the proposed judgment while reserving right to file subsequent motions challenging jury findings on other grounds. New appellate counsel Kevin Dubose (Alexander Dubose & Jefferson LLP) appears for Kassab.",JDGMT-1,N/A,Phase 5,2023-09-15_OBJ_Kassab-Objection-to-Pohl-Proposed-Final-Judgment_FILED.pdf,"That the Court refrain from signing Pohl's proposed final judgment and exclude: (1) exemplary damages ($3,000,000) due to non-unanimous Q17 finding, (2) attorneys' fees from barratry cases and grievances as actual damages, (3) one of the duplicative damage measures ($250,000 market value or $200,000 development costs), (4) joint and several liability based on conspiracy, and (5) all damages given Precision's exoneration breaking the indirect misappropriation chain","9/15/2023 1:38 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 79605741
By: Patricia Gonzalez
Filed: 9/15/2023 1:38 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et al § IN THE DISTRICT COURT
V. § OF HARRIS COUNTY, TEXAS
§ k
§ e
SCOTT FAVRE, et al § 281st JUDICCIAL DISTRICT
KASSAB’S OBJECTIONS TO
POHL’S PROPOSED FINAL JUDGMEtNT
Lance Christopher Kassab and Lance Christopher Kassab, P.C. d/b/a The
Kassab Law Firm (“Kassab”) file these Objection teo the proposed Final Judgment
submitted by Plaintiffs Michael Pohl and uLaw Office of Michael A. Pohl
PLLC’(“Pohl”).
INTRODUCTIOaN AND OVERVIEW
Kassab will file subsequent motions challenging the jury findings against him
on various grounds. But this filineg will be limited to objecting to elements of recovery
in Pohl’s proposed judgmenft that are legally insupportable, even with these jury
findings. Specifically:
• The judgment should not include exemplary damages because one of the
predicate ifindings for exemplary damages was not answered by the jury
unanoimously.
• The judgment should not include as actual damages attorney’s fees incurred
by Pohl in actions against him by former clients and rejected potential clients
who were victims of Pohl’s barratry. Attorney’s fees are not an element of
recoverable damages under TUTSA.
• The judgment should not include actual damages for both unjust enrichment
of Kassab and the fair market value of the alleged trade secret misappropriated
from Pohl because they are two impermissibly overlapping versions of the same
loss. Pohl should have to elect one of those remedies rather than being awarded
a double recovery. C
• The judgment should not include joint and several liabili i ty under a conspiracy
theory because conspiracy is pre-empted under TUTiSA or subject to Chapter
33’s proportionate responsibility scheme.
• The judgment should not include any actual damages for theft of trade secrets
because of the jury’s findings that Precision did not misappropriate trade
secrets. Because Kassab acquired Plohl’s alleged trade secrets from Precision,
and the jury found that PrecMision acquired the information lawfully, then
Kassab could not have misappropriated trade secrets from Pohl.
i ARGUMENT
I. The judgment should not include exemplary damages because
the predicate question to reach the exemplary damages
question was onot answered unanimously.
Question 19l was the only question in the jury charge that asked about
exemplary damiages. The predicate instruction for Question 19 said, “Answer the
following question only if you unanimously answered ‘Yes’ to Question No. 17 or
Question No. 18. Otherwise, do not answer the following question.”1
The jury did not answer Question 18.
1 Motion, Exhibit A, at Question 19.
Some members of the jury answered Question 17 ‘Yes,” finding that the
misappropriation of trade secrets was willful and malicious.2 But the answer to
Question 17 was not unanimous — contrary to Pohl’s erroneous and false assertion
that “the jury unanimously found that the misappropriation of Pohl’s ktrade secrets
by Kassab was willful and malicious.”3 C
The certificate at the end of the jury verdict makes it unmistakably clear that
the answer to Question 17 was not unanimous. First, in thie general part of the jury
certificate the jury declined to check the box indicating that “Our verdict is
unanimous,” but instead checked the box indicating that ten jurors agreed to every
answer:
The additional certificate requcired the jury to indicate whether certain liability and
damages questions were answered unanimously:
In respoUnse to that instruction, the presiding juror signed certificates indicating that
Questions 2 and 19 were unanimous. But the presiding juror conspicuously did not
2 Motion, Exhibit A, at Question 17.
3 Motion, at 3.
sign the certificate for Question 17:
Thus, the jury’s answer to Question 17 was unmistakably not iunanimous.
The jury’s failure to answer Question 17 unanimouDsliy precludes any award of
exemplary damages by both rule and statute. See TEXs. R. CIV. P. 292 (“A verdict may
be rendered awarding exemplary damages only ifr the jury was unanimous in finding
liability for and the amount of exemplary d
amages.”) (emphasis added); TEX. CIV.
PRAC. & REM. CODE § 41.003(d) (“Exempl
alry damages may be awarded only if the
jury was unanimous in regard to finding liability for and the amount of exemplary
damages.”) (emphasis added).
Texas cases have not heisitated to apply this principle articulated in both rule
and statute. See Redwine v. Peckinpaugh, 535 S.W.3d 44, 52 (Tex. App.—Tyler 2017,
no pet.) (concluding o“that the trial court erred in entering judgment awarding
exemplary damaagles” when “[d]espite [the jury] having answered the exemplary
damages quesftiion, which was predicated 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.) (trial court did not err in reforming a judgment where
Rule 292 required a unanimous jury finding both liability for and the amount of
exemplary damages; a non-unanimous verdict on liability was insufficient as a matter
of law to support an award of exemplary damages).
Because the predicate finding of malicious misappropriation was the only way
to get to exemplary damages, and that question was not answered unaknimously, the
judgment cannot include exemplary damages. C
II. The judgment should not include attorney’s fees incurred in
Pohl barratry cases and grievance procedures betcause they are
not recoverable under TUTSA or the Disciplinairy Rules.
A. Attorney’s fees incurred in Pohl’s barratry cases and
grievances are not recoverable undeer TUTSA.
Attorney’s fees incurred by Pohl in defenuding barratry suits and grievances
filed by his former clients and rejected potential clients are not recoverable under
TUTSA. TUTSA provides recovery for a“actual loss[es] caused by misappropriation”
and unjust enrichment. TEX. CIV. PRAC. & REM. CODE § 134A.004. The act does not
define that term, and no Texase case has attempted a definition. However, the act
requires it to “be applied anfd construed to effectuate its general purpose to make
uniform the law with respect to the subject of this chapter among states enacting it.”
TEX. CIV. PRAC. & REM. CODE § 134A.008. Thus, the Court must look to and be guided
by decisions fromi other states that have adopted the Uniform Trade Secrets Act. See
Morgan v. Colements Fluids S. Tex., Ltd., 589 S.W.3d 177, 191 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 other jurisdictions “have made clear that ‘actual loss’ means ‘loss of
profits, lost 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); Skelectica, Inc.
v. Novatus, Inc., No. 6:13-cv-1708-Orl-40TBS, 2015 U.S. Dist. LECXIS 191940, at *9
(M.D. Fla. 2015) (“‘Actual loss’ has been defined as ‘loss of profits, lost customers or
lost market share.’”). In a case construing the Idaho Uniforim Trade Secrets Act, the
Idaho Supreme Court held that actual loss means “lost profits, lost customers, 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 (Idalho 1996). Thus, attorney’s fees that Pohl
incurred defending the barratry claimMs and grievances brought against him are not
actual losses recoverable under the statute.
This conclusion is consiistent with Texas trade secret law before TUTSA. The
Supreme Court of Texas defined recoverable losses for a trade secret claim as “the
value of the plaintiff’so lost profits, the defendant’s actual profits from the use of the
secret, the value al reasonably prudent investor would have paid for the trade secret,
the developmient 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); see also Carbo Ceramics, Inc. v. Keefe, 166 F. App'x 714, 722-23 (5th Cir.
2006) (“In an action for trade secret misappropriation, the plaintiff may recover
actual damages based on either the value of what has been lost by the plaintiff or
the value of what has been gained by the defendant. … The value of what has been
lost by the plaintiff is usually measured by lost profits.”) (applying Texas law)
(emphasis added). No Texas court has ever allowed attorneys’ fees in other cases to
be recovered as actual damages in a trade secret claim. In fact, at leakst one recent
Texas court has concluded the opposite in dismissing a TUTSA Cclaim. 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.) (irejecting contention that
“disclosure of [party’s] confidential information” caused “the attorney’s fees that have
been incurred [which] is evidence of damages” because “attorney’s fees incurred in a
lawsuit are not actual damages.”).
This conclusion is further reinforceld by Texas law regarding attorney’s fees
incurred in previous litigation. “[F]eeMs expended in prior litigation generally are not
recoverable as damages; fees are recoverable only when an agreement between the
parties so provides.” Martin-Siimon v. Womack, 68 S.W.3d 793, 797 (Tex. App.—
Houston [14th Dist.] 2001, pet. denied); see also Tana Oil & Gas Corp. v. McCall, 104
S.W.3d 80, 81-82 (Texo. 2003) (attorney’s fees for defending a different claim are not
recoverable as damlages as a matter of law); O'Neal v. Dale, No. 02-20-00173-CV, 2021
Tex. App. LEXiIS 466, at *28 (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 damage claim.”); Tex. Mut. Ins. Co. v. Ray Ferguson Interests, Inc., No.
01-02-00807-CV, 2006 Tex. App. LEXIS 2001, at *23-24 (Tex. App.—Houston [1st
Dist.] Mar. 16, 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. vk. Shamoun &
Norman, L.L.P., 422 S.W.3d 821, 837 (Tex. App.—Dallas 2014, no Cpet.).
Pohl may argue that he is entitled to recover attorney’s fees based on an
exception to the general rule based on the “tort of another,” wihich provides that “[o]ne
who through the tort of another has been required to act in the protection of his
interests by bringing or defending an action against a third person is entitled to
recover reasonable compensation for loss of time, attorney fees and other
expenditures thereby suffered or incurredl in the earlier action.” Naschke v. Gulf
Coast Conference, 187 S.W.3d 653, 6M55 (Tex. App.—Houston [14th Dist.] 2006, pet.
denied) (quoting RESTATEMENT (SECOND) OF TORTS § 914 (1979)). But that exception
has never been embraced by tihe Texas Supreme Court4 and has been flatly rejected
by the Fourteenth Court of Appeals.5 See Naschke, 187 S.W.3d at 655 (“Because we
are bound to follow thoe existing laws of the State, we are not at liberty to adopt a
4 See Akin, Gum f pi, 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.”).
5 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).
theory of recovery that has not been enacted by the Legislature or adopted by the
Texas Supreme Court.”).
The First Court of Appeals has not specifically held whether the “tort of
another” exception is viable. But it has stated that because this exkception is an
equitable doctrine it can only apply when the plaintiff is “whollyC 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.]i June 30, 2005, no pet.)
(mem. op.); see also Brannan Paving GP, LLC v. Pavement Markings, Inc., 446 S.W.3d
14, 27 (Tex. App.—Corpus Christi 2013, pet. denied) (referring to the “tort of another
exception” as an “equitable exception” to the general rule).
Here, the jury concluded in responsel to Question 3 that the “wrongful conduct
of Pohl . . . contribute[d] to the injury.M”6 Because Pohl is not a wholly innocent party,
he may not invoke the “tort of another exception” to the general rule even if it is a
viable doctrine under Texas laiw. See Per-Se Techs., 2005 Tex. App. LEXIS 5096, at
*24; see also Pacesetter Pools, Inc. v. Pierce Homes, Inc., 86 S.W.3d 827, 834 (Tex.
App.—Austin 2002, noo pet.) (“[B]ecause the jury found that Allcox's damages were
caused by the neglligent conduct of both Pierce Homes and Pacesetter, equitable
principles do niot 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 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
6 Motion, at Exhibit A, at Question No. 3.
consequences of some original wrongful act of another and permitted to be recovered
as damages.”).
Accordingly, attorney’s fees incurred by Pohl in defending against barratry
litigation and grievances are not recoverable “actual losses” under TUTSkA and should
not be included in the judgment. C
B. Attorneys’ fees are never recoverable against persons
bringing grievance procedures. t
Rule 17.09 of the Texas Rules of Disciplinary Procedure provides immunity to
persons filing grievance procedures: “No lawsuit emay be instituted against any
Complainant or witness predicated upon the filinug of a Grievance or participation in
the attorney disciplinary and disability system . . . . The immunity is absolute and
unqualified and extends to all actions ata law or in equity.” TEX. R. DISC. P. 17.09. Even
“allegations of wrongdoing . . . in connection with [the] prosecution of disciplinary
actions” are absolutely immune,e so long as they are “predicated upon” the filing of a
grievance. Crampton v. Farfris, 596 S.W.3d 267, 274-75 (Tex. App.—Houston [1st
Dist.] 2019, no pet.).
Thus, the $112,286 in attorney’s fees for defending against grievances that the
jury found in Quiestion 7(1)(e) and 7(1)(f) and are not recoverable damages as a matter
of law. See ToEX. R. DISC. P. 17.09.
III. The judgment should not include damages for both unjust
enrichment and fair market value; Pohl should have to elect
between the two.
Under TUTSA, a claimant is entitled to recover “actual loss caused by the
misappropriation and unjust enrichment caused by misappropriation that is not
10
taken into account in computing actual loss.” TEX. CIV. PRAC. & REM. CODE §134A.004.
Pohl’s request for judgment seeks an improper double recovery. In response to
Question 7(2) the jury found $250,000 in damages for actual loss, that is, the price a
willing buyer and a willing seller would have agreed on, at the time okf the alleged
misappropriation, as a fair price for Kassab’s use of the allegedC trade secrets. In
response to Question 7(3), the jury found $200,000 in unjust enrichment damages,
that is, the value of the development costs that Kassiab avoided by allegedly
misappropriating Pohl’s trade secrets.
If Pohl recovers the fair market value of his alleged trade secrets he will be
fully compensated for any actual loss. If he were willing to sell the alleged secrets to
a third party, that buyer would necessarilyl possess the secrets and would avoid any
development costs as part of the acqMuisition. Therefore, the development costs are
“taken into account” in the market value and duplicate the fair market value. TEX.
CIV. PRAC. & REM. CODE § 134Ai.004. In other words, Pohl cannot recover both of these
duplicative elements of damages under TUTSA but should be required to make an
election between the towo.
IV. The judgmlent should not include joint and several liability
under a iconspiracy theory because conspiracy is pre-empted
under TiUTSA or subject to proportionate responsibility under
Chapoter 33.
Pohl’s proposed judgment includes joint and several liability against Kassab
based on a conspiracy finding by the jury in Question 15. But Pohl’s conspiracy claim
is either preempted by TUTSA or subject to the proportionate responsibility scheme
of Chapter 33 of the Texas Civil Practice & Remedies Code.
11
With respect to TUTSA, the act 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.
Although no Texas case has addressed this issue, a federal district cokurt sitting in
Texas has concluded that “the weight of authority from district courCts within the Fifth
Circuit … [demonstrate a] conspiracy claim is preempted by TUTSA.” VEST Safety
Med. Servs., LLC v. Arbor Env't, LLC, No. 4:20-CV-0812i, 2022 U.S. Dist. LEXIS
127285, at *10 (S.D. Tex. 2022) (collecting cases).
With respect to Chapter 33, it applies to “any cause of action based on tort in
which a defendant, settling person, or responsible third party is found responsible for
a percentage of the harm for which relief ils sought.” TEX. CIV. PRAC. & REM. CODE §
33.002(a). “Civil conspiracy is an inMtentional tort.” Firestone Steel Prods. Co. v.
Barajas, 927 S.W.2d 608, 617 (Tex. 1996). Chapter 33 lists those claims to which it
does not apply and does not lisit conspiracy. See id. at § 33.002(c). Accordingly, courts
have concluded that Chapter 33’s proportionate responsibility scheme applies to
conspiracy claims, ratoher than joint and several liability. See Seven Seas Petroleum,
Inc. v. Cibc World lMkts. Corp., No. H-08-3048, 2013 U.S. Dist. LEXIS 101112, at *73-
74 (S.D. Tex. i2013) (“when the Legislature has chosen to impose joint and several
liability rather than proportionate liability, it has clearly said so.”); Pemex
Exploracion Y Produccion v. BASF Corp., No. H-10-1997, 2011 U.S. Dist. LEXIS
156655, at *43-48 (S.D. Tex. 2011) (claims for conspiracy are not expressly exempted
from Chapter 33's proportionate responsibility framework).
12
Because the conspiracy claim is either preempted by TUTSA or subject to the
proportionate responsibility scheme under Chapter 33, the judgment should not
include joint and several liability against Kassab.
V. The judgment should not include any damages against Kkassab
because the jury’s finding of no wrongdoing by Perecision
destroys the misappropriation claim against Kassab. C
Pohl alleged that Precision illegally misappropriated trade secrets from him,
and that Kassab subsequently committed indirect misappriopriation of trade secrets
by acquiring illegally misappropriated trade secrets from Precision.7 Although Pohl
originally sued Precision, he non-suited his claims against Precision. Nevertheless,
Precision was designated as a responsible third party, and when the jury was asked
whether Precision misappropriated trade lsecrets from Pohl, it found that Precision
did not.8 In consistent fashion, the juryM answered “0” in Question 4 when asked to assign what
percentage of the “fault that caused the o injury” was attributable to Precision.9
Indirect misappropriation of trade secrets has been described as a “daisy-
chain” type liability in that the plaintiff must show “that the defendant knew or
had reason to knowo before the use or disclosure that the information was a trade
secret and knew olr had reason to know that the disclosing party had acquired it
7 Plaintiff’s nFirst Amended Petition, at ¶ 21 (“Favre and Precision illegally misappropriated
Pohl’s prUoprietary and confidential information and property …which included information
about and/or communications 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 misappropriated electronic data to which they had access through Precision’s work for Pohl.”)
(emphasis added).
8 Motion, at Exhibit A, Question 2(a)(3) and 2(b)(3).
9 Motion, Exhibit A, at Question No. 4(3).
13
through improper means or was breaching a duty of confidentiality by disclosing it.”
AssuredPartners of Or., LLC v. Reese, No. 6:22-cv-00673-MC, 2022 U.S. Dist. LEXIS
233618, at *7 (D. Or. 2022) (emphasis added). In other words, the jury must find the
first person in the chain committed direct misappropriation — i.e. kacquired the
information by improper means – before any of those indirectly misCappropriating can
be found liable. See TEX. CIV. PRAC. & REM. CODE § 134A.002
(3)(B)(ii)(a) (requiring
the person misusing the trade secret to know or have reaison know that the trade
secret was “derived from or through a person who used improper means to acquire
the trade secret”).
Here, the jury answered “No” to the question of whether Precision had
misappropriated Pohl’s trade secrets even tlhough Precision was defined in the charge
to include Walker, Seymour and LadnMer prior to May 12, 2015 and Favre after May
12, 2015.10 The jury’s finding that Precision, and those associated with Precision, did
not misappropriate anything —i meaning it either owed no duty to Pohl or breached
no duty to Pohl when it provided Pohl's alleged information to Kassab — precludes
liability against Kassaob for indirect misappropriation.
a l PRAYER FOR RELIEF
For all tihese reasons, Kassab objects to the judgment submitted by Pohl and
respectfully requests that the Court refrain from signing the proposed judgment.
10 See Motion, at Exhibit A, p. 5.
14
ALEXANDER DUBOSE & JEFFERSON LLP
/s/ Kevin Dubose
Kevin Dubose
kdubose@adjtlaw.com
Texas State Bar No. 06150500
1844 Harvard Street k
Houston, Texas 77008 e
Phone (713) 523-0667 C
Facsimile (713) 522-4553
FOGLER, BRAR, O’NEItL & GRAY, LLP
/s/ Murray Fogler
Murray Fogler
mfogler@feoglerbrar.com
Texas State Bar No. 07207300
909 Faunnin, Suite 1640
Houston, Texas 77002
(713) 481-1010
(l713) 574-3224 (Fax)
THME KASSAB LAW FIRM
/s/ David Eric Kassab
e Lance Christopher Kassab
i Texas State Bar No. 00794070
f David Eric Kassab
Texas State Bar No. 24071351
1214 Elgin Street
o Houston, Texas 77004
Telephone: (713) 522-7400
l E-service: eserve@kassab.law
i ATTORNEYS FOR KASSAB DEFENDANTS
CERTIFICATE OF SERVICE
I certify that this document has been forwarded to all counsel pursuant to the
Texas Rules of Civil Procedure on September 15th, 2023.
/s/ David Eric Kassab
David Eric Kassab
15
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: 79605741
Filing Code Description: No Fee Documents
Filing Description: t
Status as of 9/15/2023 2:32 PM CST i
Case Contacts D
Name BarNumber Email e TimestampSubmitted Status
Todd Taylor ttaylor@jandflaw.com 9/15/2023 1:38:22 PM SENT
Jean C.Frizzell jfrizzell@reBynoldsfrizzell.com 9/15/2023 1:38:22 PM SENT
Jean C.Frizzell jfrizzell@nreynoldsfrizzell.com 9/15/2023 1:38:22 PM SENT
Harris Wells hwellsi l@reynoldsfrizzell.com 9/15/2023 1:38:22 PM SENT
Todd Taylor ttaylor@jandflaw.com 9/15/2023 1:38:22 PM SENT
Scott M.Favre scott@favrepa.com 9/15/2023 1:38:22 PM SENT
Lawyer Wade lawyerwade@hotmail.com 9/15/2023 1:38:22 PM SENT
Chris C.Pappas cpappas@krcl.com 9/15/2023 1:38:22 PM SENT
Non-Party Witness Billy Shepherd O bshepherd@spcounsel.com 9/15/2023 1:38:22 PM SENT
Non-Party Dona Pohl y DonaLyann@yahoo.com 9/15/2023 1:38:22 PM SENT
Non-Party Edgar Jaimes o edgarsroom@gmail.com 9/15/2023 1:38:22 PM SENT
Lance Kassab lance@kassab.law 9/15/2023 1:38:22 PM SENT
David Kassab david@kassab.law 9/15/2023 1:38:22 PM SENT
Nicholas Pierce f i nicholas@kassab.law 9/15/2023 1:38:22 PM SENT
Lance Kassab eserve@kassab.law 9/15/2023 1:38:22 PM SENT
Andrea Mendez andrea@kassab.law 9/15/2023 1:38:22 PM SENT
Murray JFogler mfogler@foglerbrar.com 9/15/2023 1:38:22 PM SENT
Murray Fogler mfogler@fbfog.com 9/15/2023 1:38:22 PM SENT
Andrew Johnson ajohnson@thompsoncoe.com 9/15/2023 1:38:22 PM SENT
Benjamin Ritz britz@thompsoncoe.com 9/15/2023 1:38:22 PM SENT
Dale Jefferson 10607900 jefferson@mdjwlaw.com 9/15/2023 1:38:22 PM SENT
Raul Herman Suazo 24003021 suazo@mdjwlaw.com 9/15/2023 1:38:22 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: 79605741
Filing Code Description: No Fee Documents
Filing Description: t
Status as of 9/15/2023 2:32 PM CST i
Case Contacts D
Kevin Graham Cain 24012371 cain@mdjwlaw.com 9/15/2023 1:38:22 PM SENT
D Kassab david@kassab.law 9/15/2023 1:38:22 PM SENT
Murray J. Fogler 7207300 mfogler@foBglerbrar.com 9/15/2023 1:38:22 PM SENT
L Kassab lance@knassab.law 9/15/2023 1:38:22 PM SENT
Murray J. Fogler 7207300 mfoglielr@foglerbrar.com 9/15/2023 1:38:22 PM SENT
Thallia Malespin tmalespin@reynoldsfrizzell.com 9/15/2023 1:38:22 PM SENT
Misty Davis mdavis@reynoldsfrizzell.com 9/15/2023 1:38:22 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 9/15/2023 1:38:22 PM SENT
Kevin Dubose 6150500 kdubose@adjtlaw.com 9/15/2023 1:38:22 PM SENT
Marisa Barrera Cruz Hurd 2O4041157 mhurd@adjtlaw.com 9/15/2023 1:38:22 PM SENT
Kelly Skelton y reception@kassab.law 9/15/2023 1:38:22 PM SENT
Harris Wells o hwells@reynoldsfrizzell.com 9/15/2023 1:38:22 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 9/15/2023 1:38:22 PM SENT"
47,2022-11-30,OBJ,Pohl,Objection to Kassab supp. RTP,Pohl's Objection to Kassab's Supplemental Motion to Designate Responsible Third Parties,"Filed November 30, 2022 in response to Kassab's Supplemental RTP Motion filed November 15, 2022. Judge Dollinger denied Kassab's original RTP Motion on October 31, 2022 (finding Pohl's objection was 'well taken') and gave Kassab 14 days to replead. Kassab filed 15 days later (one day late). Pohl argues the supplemental motion contains no new factual allegations. Pohl does not object to designation of Favre and Precision as RTPs.",RTP-1,N/A,Phase 3,2022-11-30_OBJ_Pohl-Objection-to-Kassab-Supp-RTP_FILED.pdf,"Deny Kassab's Supplemental RTP Motion without leave for Kassab to attempt to replead, as Kassab failed to plead sufficient facts after already being granted leave to replead","11/30/2022 4:26 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 70583280
By: Ashley Lopez
Filed: 11/30/2022 4:26 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et. al § IN THE DISTRICT COURT OF
Plaintiffs, §
V. § HARRIS COUNTY,k TEXAS
§ e
LANCE CHRISTOPHER § C l
KASSAB, et. al § 
§ c
Defendants. § 189TH JUDrICIAL DISTRICT
POHL’S OBJECTION TO KASSAB’S SUPPLEMENTAL MOTION TO DESIGNATE
RESPONSIBLE THIRD PARTsIES
Plaintiffs Michael Pohl and Law Office of Michael A. Pohl PLLC (collectively “Pohl”) file
this Objection to Defendants Lance Christopher Kassab and Lance Christopher Kassab, P.C. d/b/a
The Kassab Law Firm’s Supplemental Motion to Designate Responsible Third Parties1 (the
“Supplemental RTP Motion”) and would showa the Court as follows:
Kassab’s Supplemental RTP Motion does not address the failings of the original RTP
Motion. The Court denied Kassab’se first RTP Motion2 because Kassab failed to plead sufficient
facts showing that the alleged resfponsible third parties were responsible for the harms underlying
Pohl’s claims. Kassab was ygiven a chance to replead with sufficient new facts to demonstrate
liability. However, thCe Supplemental RTP Motion contains the same factual allegations copied
and pasted from the briefing before the Court when it denied the RTP Motion. Kassab tried to
disguise this bfyf reordering and lightly paraphrasing or modifying the allegations. But Kassab
1 This Objection is primarily directed at Kassab’s Supplemental RTP Motion, filed Nov. 15, 2022. Kassab also filed
a Second Supplemental Motion to Designate Responsible Third Parties, filed Nov. 22, 2022 (“Second Supplemental
RTP Motion”). Pohl does not object to the designation of Scott Favre and Precision Marketing Group, LLC as
responsible third parties. However, Pohl objects to the Second Supplemental RTP Motion, on the same grounds as
set forth in this briefing, to the extent that it seeks the same relief sought in the Supplemental RTP Motion or seeks to
designate anyone as a responsible third party other than Scott Favre and Precision Marketing Group, LLC.
2 See Kassab’s Motion to Designate Responsible Third Parties, filed May 13, 2022 (the “RTP Motion”); see also Court
Order, dated Oct. 31, 2022 (denying the RTP Motion).
provided no new factual allegations since the Court ruled on the RTP Motion, and thus, the Court
should deny the Supplemental RTP Motion for the same reasons it denied the RTP Motion.
I. BACKGROUND
Kassab seeks the same relief in the Supplemental RTP Motion as he soukght in the RTP
Motion—he seeks to designate eight allegedly responsible third parties—Billly Shepherd, Scott
Walker (“Walker”), Steve Seymour (“Seymour”) Kirk Ladner (“Ladncer”), Dona Pohl, Edgar
Jaimes, Ken Talley, and Magdalena Santana (collectively, the “Allesged RTPs”). See generally
RTP Motion; Supplemental RTP Motion. 
After Kassab filed the RTP Motion, on May 31, 2022, Pohl timely filed his Objection to
Kassab’s Motion to Designate Responsible Third Parties (“Pohl’s Original RTP Objection”). It
clearly laid out how the allegations in Kassab’s original RTP Motion were deficient, and how none
of the Alleged RTPs “caused or contributed to causing” the harms underlying Pohl’s claims. See
generally Pohl’s Original RTP Objection (quoting TEX. CIV. PRAC. & REM. CODE § 33.011(6)).
The Court was required to designate tehe Alleged RTPs as responsible third parties unless the Court
found that Pohl’s Original RTP Ofbjection demonstrated that Kassab had failed to “plead sufficient
facts concerning the alleged yresponsibility of the person to satisfy the pleading requirement of the
Texas Rules of Civil PCrocedure.” See TEX. CIV. PRAC. & REM. CODE § 33.004(g)(1).
Kassab waiated until September 2022, to request a ruling on this issue. See generally
Kassab’s Motiofn to Rule on Plaintiffs’ Objection to Designation of Responsible Third Parties
(“MotionU to Rule”), filed Sept. 22, 2022. After Kassab’s Motion to Rule was filed, the Court held
an oral hearing, and the Court found that Pohl’s Original RTP Objection was “well taken,” and
denied Kassab’s RTP Motion. See Court Order, dated Oct. 31, 2022. Kassab was given leave to
“replead and seek the relief sought in the” RTP Motion “within 14 days of this ORDER.” Id.
Despite the Court’s deadline, Kassab took 15 days to file the Supplemental RTP Motion,3
and he then requested a continuance in part on the basis that responsible third parties had not been
designated. But even though he took 15 days, rending the request untimely, Kassab chose to
make no new material factual allegations when repleading. All of the factual akllegations in the
Supplemental Motion were contained in the RTP Motion and the Motion to Rulle. Thus, there are
no new factual allegations before the Court that the Court did not have in cfront of it when it denied
Kassab’s RTP Motion last month. s
II. COMPARISON OF THE ORIGINAL (ALREADY DENIEDs) RTP MOTION TO KASSAB’S
SUPPLEMENTAL RTP MO s TION
To assist the Court in understanding how Kassarb failed to plead new facts to justify
designating the Alleged RTPs as responsible third parties—and instead just copied and rearranged
prior allegations—Pohl provides the following dliscussion of how Kassab’s Supplemental RTP
Motion differs (or does not differ) from tMhe RTP Motion. The original RTP Motion and the
Supplemental RTP Motion are collectivoely referred to as the “Motions.”
The Motions are word-for-wcord identical for their first six and a half pages—excluding
references to the respective titles of the Motions. Compare RTP Motion, 1–7, with Supplemental
RTP Motion, 1–7. The “Facts” sections of both Motions are 100% identical to each other. See id.
The first set of real differences between the Motions are the opening three paragraphs of
the Supplementalc RTP Motion’s “Argument” section. These paragraphs discuss legal standards
and how the Court permitted Kassab to replead after the Court denied the RTP Motion. See
Supplemental RTP Motion ¶¶ 15–17. There are no new relevant factual allegations concerning
any Alleged RTP in these paragraphs. See id. Although these three paragraphs are not contained
3 The day before Kassab filed the Supplemental RTP Motion, Kassab filed an eighth amended answer containing the
same copied and pasted allegations found in his prior briefing. But Kassab did not replead and “seek the relief” he
sought in the RTP Motion until he filed the Supplemental RTP Motion after the Court-ordered deadline.
in the RTP Motion, they were copied almost word-for-word from Kassab’s Motion to Rule.
Compare id., with Motion to Rule, at 2–3.4
The only real addition of factual allegations comes with paragraph 18, which is not directly
copied and pasted from the prior RTP Motion. Compare Supplemental RTP Moktion ¶ 18, with
RTP Motion. This paragraph focuses exclusively on three Alleged RTPs—Wallker, Seymour, and
Ladner—it does not address the lack of allegations against other Alleged RcTPs. See Supplemental
RTP Motion ¶ 18. Furthermore, it is copied nearly word-for-word frosm Kassab’s brief asking the
Court to rule on the RTP Motion. Compare id., with Motion to sRule, at 3–4.5
The remaining seven paragraphs (paragraphs 19–25) of the Supplemental RTP Motion are
either directly copied from the RTP Motion, or they are lightly modified or paraphrased versions
of what was previously pled in the RTP Motion:
• Compare Supplemental RTP Maotion ¶ 19, with RTP Motion ¶ 19 (showing same
factual allegations were copMied and/or paraphrased).
• Compare Supplemental RoTfP Motion ¶ 20, with RTP Motion ¶ 17 (same).
• Compare Supplementeal RTP Motion ¶ 21, with RTP Motion ¶¶ 16–17 (same).
• Compare Supplemfeintal RTP Motion ¶ 22, with RTP Motion ¶ 18 (showing same
factual allegatioOns were copied and pasted with a few words deleted).
• Compare Supyplemental RTP Motion ¶ 23, with RTP Motion ¶ 20 (showing same
factual allegations were copied and/or paraphrased).
• Compare Supplemental RTP Motion ¶ 24, with RTP Motion ¶ 20 (showing same
factuaall allegations were copied and pasted with minor alterations or omissions).
• Co c mpare Supplemental RTP Motion ¶ 25, with RTP Motion ¶ 20 (showing same
ffactual allegations were copied and pasted with minor alterations).
4 Almost every word of these three paragraphs of the Supplemental RTP Motion was directly copied from the Kassab’s
Motion to Rule, other than a sentence noting that the Court denied the RTP Motion and granted leave to replead. See
Supplemental RTP Motion ¶ 16. This statement is not material.
5 The last clause of paragraph 18 adds: “as had Walker, Ladner and Seymour not stolen Pohl’s alleged trade secrets as
he alleges, they could not have sold the alleged trade secrets to Favre and thus, Favre could not have given the alleged
trade secrets to Kassab.” See Supplemental RTP Motion ¶ 18. However, this is not a new factual allegation, as it
simply lightly synthesizes other prior factual allegations. See generally RTP Motion.
There is one exception regarding those seven paragraphs. Paragraph 25 of the Supplemental RTP
Motion appears to be a combination of two different paragraphs—one from the RTP Motion, and
one from the Motion to Rule. Compare Supplemental RTP Motion ¶ 25 (containing new legal
arguments and citations), with RTP Motion ¶ 20, and Motion to Rule, at 4–5. Thkus, there are no
new substantive factual additions in the Supplemental RTP Motion. All thle facts alleged are
contained in the briefing that was before the Court when it ruled on the RcTP Motion.
III. DISCUSSION s
Resolution of Kassab’s Supplemental RTP Motion is easy. Despite the factual allegations
contained in the RTP Motion and the Motion to Rule, on October 31, 2022, this Court ruled that
Kassab had failed “plead sufficient facts concerning the alleged responsibility of the person to
satisfy the pleading requirement of the Texas Rules of Civil Procedure.” See Tex. Civ. Prac. &
Rem. Code § 33.004(g)(1). Nothing has chaanged since the Court made this ruling.
Because this Court already found that Pohl’s Original RTP Objection demonstrated that
Kassab’s allegations were deficient uender the rules, it should also be sufficient as an objection to
the substantively identical Supplefmental RTP Motion. Pohl therefore incorporates by reference,
in its entirety, Pohl’s Originayl RTP Objection. The Court should reject Kassab’s “butterfly effect”
theory of proportionateC responsibility and deny Kassab’s Supplemental RTP Motion for the same
reason it denied Kaassab’s prior RTP Motion—because Kassab fails to allege facts showing how
the alleged respfonsible third parties are responsible for the harms underlying Pohl’s tort claims.
U IV. CONCLUSION
For the foregoing reasons, and for the reasons stated in Pohl’s Original RTP Objection,
Pohl objects to Kassab’s Supplemental RTP Motion and request that the Court deny the
Supplemental RTP Motion without leave for Kassab to attempt to replead, as Kassab failed to
plead sufficient facts after being granted leave to replead.
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 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 30th day of November, 2022.
M /s/ Jean C. Frizzell
 Jean C. Frizzell
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: 70583280
Status as of 12/1/2022 8:15 AM CST
Case Contacts r i
Name BarNumber Email TimestampSubmitted Status
Solace Southwick ssouthwick@reynoldssfrizzell.com 11/30/2022 4:26:40 PM SENT
Zandra EFoley zfoley@thompsogncoe.com 11/30/2022 4:26:40 PM SENT
Andrew Johnson ajohnson@thoumpsoncoe.com 11/30/2022 4:26:40 PM SENT
Benjamin Ritz britz@thompsoncoe.com 11/30/2022 4:26:40 PM SENT
Murray JFogler mfogleyr@foglerbrar.com 11/30/2022 4:26:40 PM SENT
Murray Fogler mfaogler@fbfog.com 11/30/2022 4:26:40 PM SENT
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 11/30/2022 4:26:40 PM SENT
Dale Jefferson 10607900ojefferson@mdjwlaw.com 11/30/2022 4:26:40 PM SENT
Raul Herman Suazo 24003021 suazo@mdjwlaw.com 11/30/2022 4:26:40 PM SENT
Jason M.Ciofalo f jason@ciofalolaw.com 11/30/2022 4:26:40 PM SENT
Chris C.Pappas cpappas@krcl.com 11/30/2022 4:26:40 PM SENT
Todd Taylor p ttaylor@jandflaw.com 11/30/2022 4:26:40 PM SENT
Misty Davis C mdavis@reynoldsfrizzell.com 11/30/2022 4:26:40 PM SENT
Non-Party Witness Billy Sahlepherd bshepherd@spcounsel.com 11/30/2022 4:26:40 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 11/30/2022 4:26:40 PM SENT
Todd Taylor o ttaylor@jandflaw.com 11/30/2022 4:26:40 PM SENT
Scott M.FavreU scott@favrepa.com 11/30/2022 4:26:40 PM SENT
Lawyer Wade lawyerwade@hotmail.com 11/30/2022 4:26:40 PM SENT
Andrea Mendez andrea@kassab.law 11/30/2022 4:26:40 PM SENT
Lance Kassab lance@kassab.law 11/30/2022 4:26:40 PM SENT
David Kassab david@kassab.law 11/30/2022 4:26:40 PM SENT
Nicholas Pierce nicholas@kassab.law 11/30/2022 4:26:40 PM SENT
Kevin Graham Cain 24012371 cain@mdjwlaw.com 11/30/2022 4:26:40 PM SENT
D Kassab david@kassab.law 11/30/2022 4:26:40 PM SENT
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Suni Blue on behalf of Jean Frizzell
Bar No. 7484650
sblue@reynoldsfrizzell.com r
Envelope ID: 70583280
Status as of 12/1/2022 8:15 AM CST
Case Contacts r i
Murray J. Fogler 7207300 mfogler@foglerbrar.com 11/30/2022 4:26:40 PM SENT
L Kassab lance@kassab.law s 11/30/2022 4:26:40 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbgrar.com 11/30/2022 4:26:40 PM SENT
Lance Kassab eserve@kassuab.law 11/30/2022 4:26:40 PM SENT"
40,2022-09-19,OBJ,Kassab,Objection to Pohl’s MSJ evidence,"Defendants' Objections to Plaintiffs' Summary Judgment Evidence — joint filing by Kassab and Nicholson Defendants challenging admissibility of Pohl's summary judgment evidence including the Pohl Declaration (paragraphs 4, 6, 10-18, 20-32) and numerous exhibits, with additional deposition testimony offered under Rule 107","Evidentiary objections filed September 19, 2022 at 8:16 AM by Kassab and Nicholson defendants jointly, on the morning of the summary judgment hearing. Challenges admissibility of Pohl's September 12, 2022 declaration and exhibits attached to both the traditional and no-evidence MSJ responses. Attaches complete depositions of Ladner, Seymour, and Walker under Rule 107. Addressed to Judge Scot 'Dolli' Dollinger.",MSJ-3,N/A,Phase 3,2022-09-19_OBJ_Kassab-Objection-to-Pohl-MSJ-Evidence_FILED.pdf,"Sustain all objections, strike objectionable portions of Pohl Declaration and exhibits, and grant summary judgment for Kassab and Nicholson defendants","9/19/2022 8:16 AM
Marilyn Burgess - District Clerk Harris County
Envelope No. 68367189
By: Deandra Mosley
Filed: 9/19/2022 8:16 AM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et al § IN THE DISTRICT COURT
V. § OF HARRIS COUNTY, TEXAS
SCOTT FAVRE, et al § 189th JUDICIALk DISTRICT
DEFENDANTS’ OBJECTIONS TO C
PLAINTIFFS’ SUMMARY JUDGMENT EVIDENCE
TO THE HONORABLE JUDGE SCOT “DOLLI” DOLLINGEtR:
Defendants Lance Christopher Kassab and Lance Christopher Kassab, P.C.
d/b/a/ The Kassab Law Firm (“the Kassab Defendeants”) and Tina Nicholson and
Baker Nicholson, LLP (“Nicholson”) (both sets ouf Defendants collectively referred to
as “Defendants”) file this, their Objections to Plaintiffs’ Summary Judgment
Evidence, and would respectfully show athe following.
OBJECTIONS TO POHL’S EVIDENCE IN RESPONSE TO TRADITIONAL MSJ
Plaintiffs Michael A. Pohel and Law Office of Michael A. Pohl, PLLC (“Pohl”)
attached to his summary judfgment responses as Exhibit A a declaration from Pohl
dated September 12, 2022 with exhibits (“Pohl Declaration”). Defendants object to
the following statements or paragraphs in the Pohl Declaration for the following
reasons: i
Paoragraph/Statement Objection/Basis
¶ 4 – “During the period that I Conclusory. Unsupported by factual or
maintained office space in Mississippi, I legal basis.
shared that space only with contractors
and employees whom I employed full
time and were treated for privilege and
confidentiality purposes as functional
employees of my law firm.
¶ 6 – “I was informed that Maxwell- Hearsay.
Walker had retained Mississippi
attorneys to advise it and confirm that
its agreement with me as well as the
public relations and marketing services
it was anticipated to provide under the
agreement were in compliance with
Mississippi law.” e
¶ 10 – “Precision represented to me that Conclusory. Hearstay. Vague and
their independent attorney or attorneys ambiguous as to whio at “Precision” made
had reviewed and approved each of the alleged represtentations so this
contracts I signed with them. In fact, interested-witneiss testimony is not
Precision and/or their independent “clear, positive and direct” as required by
attorneys prepared or redrafted several Rule 166a(sc).
of the services agreements.” e
¶ 11 – “Precision also represented that, Conclusory. Hearsay. Vague and
in addition to their public relations ambiguous as to who at “Precision” made
services, they were competent to handle alleged representations so this
client liaison services and claims linterested-witness testimony from Pohl
management with respect to clients whao is not “clear, positive and direct” as
retained me and Jimmy WilliamsonM to required by Rule 166a(c).
investigate and potentially prosecute
their BP claims.”
¶ 12 – “I am and was the righitful owner Conclusory. Improper lay or expert
of all the confidential, pOrivileged and opinion on legal issues for which Pohl is
trade secret information and property not properly qualified or designated to
that Kassab, Montagupe and Nicholson provide testimony on. Unsupported by
obtained from Scott Foavre and Precision factual or legal basis. More specifically,
Marketing Group, LLC on which this Pohl’s statements that he is a rightful
lawsuit is baseda. l… as a lawyer, I am owner of the information, that the
also entitled tco imaintain a copy of the information is a “trade secret,” and that
files and havfei a possessory interest in he has a possessory and ownership
them. Moroeover, with respect to the interest in the information are
attorney-client contracts to which I was conclusory without any supporting basis.
a party, as a contracting party I likewise
have an ownership interest in each of
the attorney-client contracts.”
¶ 13 – “while a single client may have Conclusory. Improper lay or expert
the right to request and obtain his/her opinion on legal issues for which Pohl is
file, that client does not have the right to not properly qualified or designated to
possess or even access other client files. provide testimony on. Unsupported by
The compilation of my clients and their factual or legal basis.
contact information, or any subset of my
clients, belongs to me and is in fact a
‘customer list.’ This is equally true if the
materials consist of over 11,000
attorney-client contracts from which one
can ascertain my ‘client’ or ‘customer e
list’.” C
¶ 14 – “I repeatedly stressed to Precision Conclusory. Heairsay. Vague and
and its staff the importance of keeping ambiguous as to wtho at “Precision” made
client information confidential including alleged repreisentations so this
the attorney-client contracts and the interested-witness testimony from Pohl
corresponding files. In turn, Precision is not “clsear, positive and direct” as
represented to me that they would be required eby Rule 166a(c). Improper lay
providing their marketing and client or expert opinion on legal issues for
services exclusively to me and knew and which Pohl is not properly qualified or
understood that their work and designated to provide testimony on.
communications with clients including Unsupported by factual or legal basis.
the underlying information of the clients l
and any of my contracts with the clienats
were confidential and could not Mbe
disclosed without my express consent.
Although Precision was a third-party
provider of legal related services, for
purposes of privileged or cionfidential
information, they were eOffectively the
functional equivalent of employees
working full time for pme out of offices
arranged for and poaid for by me. I
considered them to be a ‘lawyer
representative’ asl that term is used in
the Texas Rules iof Civil Evidence.
¶ 15 – “I likoewise took additional steps to Conclusory. Improper lay or expert
safeguard my confidential and opinion on legal issues for which Pohl is
proprietary information. My offices, not properly qualified or designated to
where my information was kept, were at provide testimony on. Unsupported by
the top floor of a bank building which factual or legal basis.
had 24-hour security. The elevators were
programmed such that after hours a
person could only access a floor or floor
for which that person had authority. The
building itself contained numerous
security cameras. My firm would lock
and secure the offices after office hours,
and my files were therefore kept under
lock and key. I also made sure my
computers were password protected.
With respect to my contracts with my
clients, the contracts were written in a e
way that left no doubt that they were an C
agreement between a lawyer and a client t 
or clients for the rendition of legal
services.” t
¶ 16 – “I did not commit barratry. The Conclusory. Improper lay or expert
assertions made by the Defendants in opinion ons legal issues for which Pohl is
their motions for summary judgment not propeerly qualified or designated to
that I committed barratry and that I provide testimony on. Unsupported by
agreed to pay Precision any percentage factual or legal basis.
of the attorney’s fees I was to receive is
not true.”
¶ 17 – “At all times, I attempted tao Conclusory. Hearsay. Improper lay or
conform to the requirements relatinMg to expert opinion on legal issues for which
practicing in states in which I was not Pohl is not properly qualified or
licensed. I note that the filing process in designated to provide testimony on.
the BP Matter permitted the Unsupported by factual or legal basis.
participation of non-lawyers. iThere was
no requirement of bar Oadmission for
filing claims.” 
¶ 18 – “the assertionso that I ever agreed Conclusory. Vague and ambiguous as to
to pay any percentage of my attorney's who at “Precision” made alleged
fees to Precisiona lare not true. Instead, representations so this interested-
the May 25, c2i012 and July 15, 2012 witness testimony from Pohl is not
Contracts faiccurately reflect the “clear, positive and direct” as required by
agreement oorally discussed and Rule 166a(c). Unsupported by factual or
understood by all of the parties before legal basis.
their execution. The agreement required
that the Precision ""shall keep accurate
daily time records of all efforts expended
on behalf of LOMAP."" The %-of-
attorney's-fees clause was simply to
impose a ""cap"" on amounts that may be
due under the other terms of the
agreement, not an independent promise
to pay any percentage of the attorney's
fees earned by LOMAP on the subject
claims. This was orally discussed and
understood by the parties before the May
25, 2012 and July 15, 2012 Contracts
were executed.”
¶ 20 – “Further with respect to the terms Conclusory. Vague andC ambiguous as to
of agreement and services to be provided who at “Precisiont ” made alleged
under the May 25, 2012 Contract and representations sio this interested-
the July 15, 2012 Contract, I was witness testimonty from Pohl is not
informed by Precision that they wanted “clear, positive aind direct” as required by
to confer with their attorneys before Rule 166a(c). Unsupported by factual or
finalizing and executing the agreement legal basiss.
documentation. We specifically discussed e
that the inclusion of the agreed
maximum-price provisions was essential
to me in agreeing to either a ""reasonable
rate"" formula or a specified contract
rate. Precision subsequently confirmed l
to me that they had conferred with theiar
Mississippi attorneys, who had advMised
that the terms of the agreement and
anticipated services thereunder were
lawful, and executed the agreement
accordingly.” i
¶ 21 – “Precision and its members Hearsay.
agreed they would orpganize and host
festivals, town hall moeetings and other
gatherings to appropriately educate the
public as part of thleir marketing efforts.”
¶ 22- “On my cbiehalf, Precision and its Conclusory. Vague and ambiguous as to
members agrfeied they would organize who at “Precision” Pohl is referring to, so
and host foestivals, town hall meetings this interested-witness testimony from
and other gatherings to appropriately Pohl is not “clear, positive and direct” as
educate the public as part of their required by Rule 166a(c). Unsupported
marketing efforts. Precision was also by factual or legal basis.
responsible for training and supervising
their staff to ensure optimal results and
compliance with the rules governing
their marketing activities.”
¶ 22 – “This included Precision sending Conclusory. Vague and ambiguous as to
me falsified and inflated invoices and who at “Precision” Pohl is referring to, so
expense information. It was also later this interested-witness testimony from
discovered that Precision had Pohl is not “clear, positive and direct” as
systematically overcharged me on all required by Rule 166a(c). Unsupported
amounts I paid them under the public by factual or legal basis.
relations agreement.”
¶ 23 – “Precision admitted that they had Conclusory. Vague andC ambiguous as to
been stealing from me. Thus, from the who at “Precision” otr “PR Consultants”
inception of my relationship with PR Pohl is referring tio, so this interested-
Consultants, they consistently witness testimonty from Pohl is not
overstated to me the amount of the “clear, positive aind direct” as required by
actual costs they charged me for, and Rule 166a(c). Unsupported by factual or
then misappropriated, converted and/or legal basiss.
stole the inflated amounts for their own e
use and benefit.”
¶ 24 – “Precision took my property Conclusory. Vague and ambiguous as to
including my engagement agreements, who at “Precision” Pohl is referring to, so
client files, contact information, lthis interested-witness testimony from
computers and other informatioan Pohl is not “clear, positive and direct” as
without my permission. These files wMere required by Rule 166a(c). Unsupported
at one time maintained in approximately by factual or legal basis. Hearsay as to
seventeen clear plastic file containers. what Ladner – who is not a party to this
Ladner admitted absconding with those case – stated.
files from my satellite law ioffice and,
without my consent, keptO them at his
residence until they were later delivered,
also without my consenpt, to Scott Favre,
who had purchasedo Precision (from
Walker, Seymour, and Ladner) and
became its managilng member.”
¶ 24 – “Precf iision and Tina Nicholson Conclusory. Vague and ambiguous as to
refused to roeturn and converted to their who at “Precision” Pohl is referring to, so
own use my computers that I purchased this interested-witness testimony from
for my office and which Precision used Pohl is not “clear, positive and direct” as
while there performing services for me. required by Rule 166a(c). Improper lay
Those computers held software and or expert opinion on legal issues for
stored data that I had paid for, which Pohl is not properly qualified or
specialized legal forms (that had been designated to provide testimony on.
prepared in compliance with various Unsupported by factual or legal basis.
state law after consultation with local
counsel in those jurisdictions),
marketing information and other trade
secrets, my proprietary administrative
client forms, various fee-agreement
forms prepared in accordance with the
laws of various states, internal emails
and other work product relating to the
BP claims and other matters for which e
Precision rendered services in connection C
with our services agreements.” t 
¶ 25 – “This theft and unlawful Conclusory. Heatrsay. Vague and
disclosure was made even more ambiguous as toi who at “Precision” Pohl
egregious by the fact that, from the is referring to, so this interested-witness
outset of their contractual relationship testimony sfrom Pohl is not “clear,
with me, Precision expressed their positive aend direct” as required by Rule
understanding of the confidential nature 166a(c). Pohl’s statement about what
of the information based on their prior “appears” to have occurred is not
experience in providing litigation related competent summary judgment evidence,
services to attorneys, a field in which and his statement about a “barratry
Precision held themselves out to me as lscheme” is conclusory and unsupported
experienced professionals. Neverthelesas, by factual or legal basis. Moreover, not
without my consent, and without lMegal designated to opine on the issue of legal
title to the contracts, documents, title.
computers, passwords or data stored
thereon, Precision sold the contracts,
documents, computer, passwoirds and/or
stored data to Scott FavreO (even after I
had informed Favre that the materials
had been stolen from pme by Precision),
who it appears eventoually sold some or
all of those items and the information
therein to Kaslsab, Montague and
Nicholson for theiir barratry scheme.
¶ 26 – “Aso part of that enforcement of Conclusory and unsupported by factual
the settlement agreement, certain or legal basis.
Defendants were sanctioned.”
¶ 27 – “The materials at issue have Conclusory. Improper lay or expert
independent economic value from not opinion on legal issues for which Pohl is
being generally known to or not properly qualified or designated to
ascertainable through proper means by provide testimony on. Unsupported by
another person who can obtain economic factual or legal basis.
value from them.”
¶ 27 – “I agree with this valuation and Conclusory. Improper lay or expert
believe it constitutes the fair market opinion on legal issues for which Pohl is
price for what an investor would pay for not properly qualified or designated to
such information. However, the provide testimony on. Pohl’s statement
conversion and misappropriation of my about what he “believes” is not
client information has deprived me of competent summary judgement evidence.
this value.” Unsupported by factuaCl or legal basis.
¶ 28 – “I have suffered injury as a result Conclusory. Impropter lay or expert
of the Defendants’ misappropriation of opinion on legal issiues for which Pohl is
my trade secrets and conversion of my not properly quatlified or designated to
property. My injury includes the costs I provide testimDoiny on. Unsupported by
have incurred in legal fees and expenses factual or legal basis. Pohl fails to
that I would never have incurred but for provide susfficient factual support about
the conversion of my property and the fees hee alleges as damages.
misappropriation of my trade secrets. I
have personally incurred hundreds of
thousands of dollars in attorneys’ fees
and expenses in relation to defending
the lawsuits orchestrated by Defendants, l
including the Berry, Brumfielad,
Cheatham, and Gandy lawsuits. I Mwas
also harmed, as I paid a substantial sum
of money as part of a settlement
agreement under which certain
Defendants were required to ireturn my
materials and not fomOent litigation
against me. But I did not receive those
benefits.” p
¶ 29 – “The filing process in the BP Conclusory. Hearsay. Improper lay or
Matter permitteadl the participation of expert opinion on legal issues for which
non-lawyers. Tchiere was no requirement Pohl is not properly qualified or
of bar admissfioin for filing claims.” designated to provide testimony on.
o Unsupported by factual or legal basis.
¶ 30 – “At no time did I knowingly Conclusory. Unsupported by factual or
participate in any illegal solicitation of legal basis.
clients in Mississippi, Louisiana, Texas
or elsewhere. I always instructed
everyone in my employ to abide by the
laws of the state in which they were
acting. I, at all times, attempted to
adhere to the rules of the State Bar of
Texas and other relevant states
regarding the solicitation of clients.
¶ 31 – “Prior to the two year period Conclusory. Vague and ambiguous as to
leading up to the filing of this case, I was who at “Precision” Pohl is referring to, so
unaware that Scott Favre and Precision, this interested-witness testimony from
with the assistance of Tina Nicholson, Pohl is not “clear, positivee and direct” as
had sold my information to Kassab and required by Rule 166Ca(c). Unsupported
Montague. And, in fact, that sale by factual or legal bast is.
occurred in November of 2016, less than i
two years before this suit was filed. t
¶ 32 – “The grievances involved those Conclusory. 
same allegations.” s
Defendants request the Court to sustain these objections and strike these
objectionable portions of the Pohl Declaration. With those statements struck, Pohl
has no evidence to support his claimls against Kassab, rendering summary
judgment appropriate. M
In addition, Defendants object to several of Pohl’s summary judgment
exhibits on the following grounds.
Exhibit/Description Objection/Basis
Exhibit F - November 15, 2019 letter Hearsay. Irrelevant because outcomes of
from Office of Cohief Disciplinary grievance proceedings are not res
Counsel. judicata in civil matters. See Charles v.
l Diggs, No. 14-19-00725-CV, 2020 Tex.
Exhibit G – Feibruary 24, 2020 letter App. LEXIS 8502, at *5 (Tex. App.—
from Office iof Chief Disciplinary Houston [14th Dist.] Oct. 29, 2020, pet.
Counsel. o denied) (client’s claim against lawyer
Exhibit H – May 14, 2020 Letter from was not precluded by dismissal of
Board of Disciplinary Appeals. grievance because “the disciplinary rules
do not set the standard for civil
Exhibit I – January 14, 2020 letter from liability”); TEX. RULES DISCIPLINARY P. R.
Office of Chief Disciplinary Counsel. 17.03 (“Neither the Complainant nor the
Respondent is affected by the doctrines
Exhibit J – April 10, 2020 Letter from of res judicata or estoppel by judgment
Board of Disciplinary Appeals. from any Disciplinary Action.”).
Exhibit K – January 9, 2020 letter from
Office of Chief Disciplinary Counsel.
Exhibit L – April 10, 2020 Letter from
Board of Disciplinary Appeals.
Exhibit M – January 9, 2020 letter from e
Office of Chief Disciplinary Counsel. C
Exhibit N – April 10, 2020 Letter from
Board of Disciplinary Appeals. t
Exhibit O – January 9, 2020 letter from 
Office of Chief Disciplinary Counsel.
Exhibit P – April 10, 2020 Letter from
Board of Disciplinary Appeals.
Exhibit T – January 9, 2020 letter from
Office of Chief Disciplinary Counsel. l
Exhibit R – October 3, 2017 Letter fMrom Hearsay.
Magdalena Santana 
Exhibit S – Transcription of audiotaped Hearsay as to statements made by
conversation between Lance Kiassab and Magdalena Santana.
Magdalena Santana. O
Exhibit Y – emails and letter from Hearsay
counsel p
Additionalalyl, Pohl attached to his response only portions of the depositions of
Scott Walker f(iExhibit D), Kirk Ladner (Exhibit V), and Steve Seymour (Exhibit W),
taken August 29-31, 2022, after Defendants filed their motions for summary
judgment. For purposes of optional completeness, Defendants attach the entire
depositions of these witnesses as Exhibits 1 (Ladner), 2 (Seymour) and 3 (Walker) to
this pleading and asks the Court to consider those depositions part of the summary
10
judgment record. See TEX. R. EVID. 107 (“If a party introduces part of an act,
declaration, conversation, writing, or recorded statement, an adverse party may …
introduce any other act, declaration, conversation, writing, or recorded statement
that is necessary to explain or allow the trier of fact to fully understkand the part
offered by the opponent.”). This exhibits include, for example, adCditional proof for
Defendants’ summary-judgment arguments, such as Kirk Ladner’s following
testimony: i
• Precision owned the marketing and client lists. Ex. 1 at 44-45.
• Helping hands decided which law firms to refer clients to. Ex. 1 at 55-56, 62-
64
• Ladner did his own research to find lthe motor vehicle accident cases. Ex. 1 at
97, 285-89. M
• Pohl was really splitting attorney’s fees with Precision and his contracts were
a deceptive smokescreein to make the scheme appear legal. Ex. 1 at 77-79,
83-85, 94-95, 269-271, 276, 287-288, 398-416, 443
• Forms and maroketing lists used by Precision belonged to Precision. Ex. 1 at
128-29. l
• Pohl nef iver told Lander to return the documents, which belonged to ladner.
Ex. 1 at 133, 173-74
• The BP claimants were clients of Precision first. Ex. 1 at 214-215.
• Pohl never told Ladner to keep the information confidential. Ex. 1 at 232-35,
264-65, 500-502
11
• Spreadsheets of claimants and pre-questionnaire forms belonged to Precision.
Ex. 1 at 244-245, 262-263.
• Pohl committed barratry. Ex. 1 at 274-280, 285-86
• Helping Hands and GM Verification signed up the claimants as their own
clients. 444 C
Additionally, Steve Seymour testified that Walker creaited claimant lists but
Pohl never said the client lists were confidential. Ex. 2 ati 96-98, 147-149, 221-222.
Walker testified that the marketing lists were Precission’s work product and so was
the initial screening forming Precision had claimants compete. Ex. 3 at 232-33,
237-242.
OBJECTIONS TO POHL’S EVIDENCE INl RESPONSE TO NO-EVIDENCE MSJ
Because the Pohl DefendantsM use the same declaration to support their
Response to the No-Evidence Motion for Summary Judgment, Defendants
incorporate by reference all thie above-stated objections and assert them as to Pohl’s
declaration attached to the No-Evidence Response as Exhibit A.
EXHIBIT/DES o CRIPTION EXHIBIT/BASIS
Exhibit BB – Omnibus Transcript Hearsay
Exhibit D – Grcieivance documents Hearsay. Irrelevant because outcomes of
f i grievance proceedings are not res
o judicata in civil matters. See Charles v.
Diggs, No. 14-19-00725-CV, 2020 Tex.
App. LEXIS 8502, at *5 (Tex. App.—
Houston [14th Dist.] Oct. 29, 2020, pet.
denied) (client’s claim against lawyer
was not precluded by dismissal of
grievance because “the disciplinary rules
do not set the standard for civil
liability”); TEX. RULES DISCIPLINARY P. R.
12
17.03 (“Neither the Complainant nor the
Respondent is affected by the doctrines
of res judicata or estoppel by judgment
from any Disciplinary Action.”).
Exhibit S – Zavitsanos Report Hearsay, unsworn.
Exhibit T – Pohl Deposition at 115-116 Hearsay regarding what third-parties
allegedly told Nicholson. Also, Pohl’s
testimony was nonresponsive.
Exhibit Y – Pohl Declaration
¶ 4 Conclusory. Improiper lay or expert
opinion on legal sitssues for which Pohl is
not properly Dquialified or designated to
provide testimony on. Unsupported by
factual or slegal basis. More specifically,
Pohl’s statements that he is a rightful
owner of the information, that the
information is a “trade secret,” and that
he has a possessory and ownership
interest in the information are
lconclusory without any supporting basis.
¶¶ 5, 6 Conclusory. Vague and ambiguous as to
 who at “Precision” Pohl is referring to, so
this interested-witness testimony from
Pohl is not “clear, positive and direct” as
i required by Rule 166a(c). Unsupported
O by factual or legal basis. Hearsay as to
 what Ladner – who is not a party to this
p case – stated.
¶ 7 Conclusory. Hearsay. Vague and
a l ambiguous as to who at “Precision” Pohl
c i is referring to, so this interested-witness
f i testimony from Pohl is not “clear,
o positive and direct” as required by Rule
166a(c). Pohl’s statement about what
“appears” to have occurred is not
competent summary judgment evidence,
and his statement about a barratry
scheme is conclusory and unsupported
by factual or legal basis. Moreover, not
designated to opine on issue of legal
¶ 8 title.
13
¶ 9 Conclusory. Vague and ambiguous as to
who at “Precision” Pohl is referring to, so
this interested-witness testimony from
Pohl is not “clear, positive and direct” as
required by Rule 166a(c). Unsupported
by factual or legal basis. e
¶¶ 10, 13, 14 Not designated as an expert on damages,
and his damages topines are conclusory,
speculative, unireliable, and lack any
factual support.
¶ 11 Conclusoery
CONCLUSION & PRAYER
For the foregoing reasons, the Court should sustain these objections to Pohl’s
summary judgment evidence. With the aobjections sustained, the Court should grant
Kassab’s request for traditional and no-evidence summary judgment and order that
Pohl take nothing his claims against Kassab.
O Respectfully submitted,
p THE KASSAB LAW FIRM
/s/ David Eric Kassab
l DAVID ERIC KASSAB
i Texas State Bar No. 24071351
i david@kassab.law
o LANCE CHRISTOPHER KASSAB
Texas State Bar No. 00794070
lance@kassab.law
NICHOLAS R. PIERCE
Texas State Bar No. 24098263
nicholas@kassab.law
1214 Elgin Street
Houston, Texas 77004
Telephone: 713-522-7400
14
Facsimile: 713-522-7410
E-Service: eserve@kassab.law
ATTORNEYS FOR KASSAB DEFENDANTS
THOMPSON, COE, COUSINS & IRONS, LLP
By: /s/ Andrew L. Johneson
Andrew L. Johnson C
State Bar No.: 24060025
Zandra E. Foley
State Bar No.: 2t4032085
Benjamin S. Riitz
State Bar No.: 24096147
One Riverway, Suite 1400
Houstoen, Texas 77056
(713) 403-8210 – Telephone
(71u3) 403-8299 – Facsimile
ajohnson@thompsoncoe.com
zfoley@thompsoncoe.com
lbritz@thompsoncoe.com
ATTORNEYS FOR DEFENDANTS TINA
NICHOLSON AND BAKER
fNICHOLSON, LLP
OCERTIFICATE OF SERVICE
I certify that onp this date, September 19, 2022, I electronically filed this
document with the Clerk of the Court using the eFile.TXCourts.gov electronic filing
system which will send notification of such filing to all parties or counsel of record.
f /s/ David Eric Kassab
DAVID ERIC KASSAB
15
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 e
Bar No. 24071351 C
david@kassab.law t
Envelope ID: 68367189 r
Status as of 9/19/2022 8:41 AM CST
Case Contacts
Name BarNumber Email sTimestampSubmitted Status
Solace Southwick ssouthwick@reynoldsfrizzell.com 9/19/2022 8:16:53 AM SENT
Zandra EFoley zfoley@thompsoncoe.com r 9/19/2022 8:16:53 AM SENT
Andrew Johnson ajohnson@thompsoncoe.com 9/19/2022 8:16:53 AM SENT
Andrew J. Sarne asarne@krcl.com 9/19/2022 8:16:53 AM SENT
Benjamin Ritz britz@thompsoncoe.conm 9/19/2022 8:16:53 AM SENT
Kathryn Laflin KLaflin@KRCL.com 9/19/2022 8:16:53 AM SENT
Dale Jefferson 10607900 jefferson@mdjwlarw.com 9/19/2022 8:16:53 AM SENT
Raul Herman Suazo 24003021 suazo@mdjwlaw.com 9/19/2022 8:16:53 AM SENT
Kevin Graham Cain 24012371 cain@mdjwlaw.com 9/19/2022 8:16:53 AM SENT
Larry Newsom lnewsom@fkrcl.com 9/19/2022 8:16:53 AM SENT
Jason M.Ciofalo jason@ciofalolaw.com 9/19/2022 8:16:53 AM SENT
Chris C.Pappas cpappas@krcl.com 9/19/2022 8:16:53 AM SENT
Todd Taylor titaylor@jandflaw.com 9/19/2022 8:16:53 AM SENT
Misty Davis fmdavis@reynoldsfrizzell.com 9/19/2022 8:16:53 AM SENT
Non-Party Witness Billy Shepherd bshepherd@spcounsel.com 9/19/2022 8:16:53 AM SENT
Deidre Hicks y GWS_GROUP@spcounsel.com 9/19/2022 8:16:53 AM SENT
Harris Wells hwells@reynoldsfrizzell.com 9/19/2022 8:16:53 AM SENT
Jean C.Frizzell C jfrizzell@reynoldsfrizzell.com 9/19/2022 8:16:53 AM SENT
Todd Taylor  ttaylor@jandflaw.com 9/19/2022 8:16:53 AM SENT
Lawyer Wade a lawyerwade@hotmail.com 9/19/2022 8:16:53 AM SENT
Scott M.Favre c scott@favrepa.com 9/19/2022 8:16:53 AM SENT
Andrea Mendez f i andrea@kassab.law 9/19/2022 8:16:53 AM SENT
Lance Kassab o lance@kassab.law 9/19/2022 8:16:53 AM SENT
David Kassab david@kassab.law 9/19/2022 8:16:53 AM SENT
Nicholas Pierce nicholas@kassab.law 9/19/2022 8:16:53 AM SENT
Murray Fogler mfogler@fbfog.com 9/19/2022 8:16:53 AM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 9/19/2022 8:16:53 AM SENT
Katie Budinsky kbudinsky@krcl.com 9/19/2022 8:16:53 AM ERROR
E. MarieJamison jamison@wrightclosebarger.com 9/19/2022 8:16:53 AM SENT
Jessica Z.Barger barger@wrightclosebarger.com 9/19/2022 8:16:53 AM SENT"
28,2022-05-31,OBJ,Pohl,Pohl’s objection to RTP designation,"Pohl's Objection to Kassab's Motion to Designate Responsible Third Parties, arguing the designated persons did not cause or contribute to the harms underlying Pohl's tort claims and that Kassab failed to satisfy pleading requirements","Phase 3 response to Kassab's RTP motion. Pohl objects on grounds that the designated persons are not responsible for the specific harms underlying Pohl's conversion and TUTSA claims, distinguishing between harm to Pohl and general connection to events. Also argues Kassab failed to timely disclose RTP identities in discovery. Filed by Reynolds Frizzell LLP.",RTP-1,N/A,Phase 3,2022-05-31_OBJ_Pohl-Objection-to-Kassab-RTP-Designation_FILED.pdf,Deny Kassab's Motion to Designate Responsible Third Parties with leave for Kassab to attempt to replead,"5/31/2022 5:00 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 64998436
By: cassie combs
Filed: 5/31/2022 5:00 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL AND LAW OFFICE OF § IN THE DISTRICT COURT OF
MICHAEL A. POHL, PLLC, §
Plaintiffs, §
V. § k
§ r
SCOTT FAVRE and SCOTT M. FAVRE PA, § 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, § D
LLP d/b/a BAKER NICHOLSON LAW § 
FIRM; and DOUGLAS MONTAGUE III and § s
MONTAGUE PITTMAN & VARNADO, P.A., §
Defendants. § r189TH JUDICIAL DISTRICT
POHL’S OBJECTION TO KASSAB’S MOTION TO DESIGNATE RESPONSIBLE
THIRD PARTIES
Plaintiffs Michael Pohl and Law Officae of Michael A. Pohl (collectively “Pohl”) file this
Objection to Defendants Lance Christopher Kassab and Lance Christopher Kassab, P.C. d/b/a The
Kassab Law Firm’s Motion to Desiegnate Responsible Third Parties (the “Motion”) and would
show the Court as follows: f
y I. INTRODUCTION
The Court shouCld deny Kassab’s Motion because he fails to allege facts showing how the
alleged responsiblea third parties are responsible for the harms underlying Pohl’s tort claims.
Kassab seeks tfo designate eight different allegedly responsible third parties—Billy Shepherd
(“ShepheUrd”), Scott Walker (“Walker”), Steve Seymour (“Seymour”) Kirk Ladner (“Ladner”),
Dona Pohl (“Dona”), Edgar Jaimes (“Jaimes”), Ken Talley (“Talley”), and Magdalena Santana
(“Santana”) (collectively, the “Alleged RTPs”). None of the Alleged RTPs “caused or contributed
to causing” the harms underlying Pohl’s claims. TEX. CIV. PRAC. & REM. CODE § 33.011(6).
Reading Kassab’s Motion, one might be forgiven for thinking that a responsible third party
is any person who bears some (or any) connection with events related to a lawsuit and whose
actions could allegedly have impacted the amount of damages suffered by a claimant. See
generally Motion. But Texas has not adopted a “butterfly effect” theory okf proportionate
responsibility. Texas’s proportionate responsibility statute requires sufficielnt allegations of a
party’s responsibility for the harm underlying a plaintiff’s cause of acction before designation
as a responsible third party is proper. s
The statute applies only to tort claims and requires that potential responsibility be
determined as to each cause of action asserted. See TEX. CIV. PRAC. & REM. CODE §§ 33.002,
33.003. The tort claims relevant to this analysis are Pohl’s claims for (1) conversion and (2)
violations of the Texas Uniform Trade Secrets Act (“TUTSA”).
In his Motion, Kassab fails to sufficieantly plead the Alleged RTPs “caused or contributed
to causing . . . the harm for which recovery of damages is sought.” See TEX. CIV. PRAC. & REM.
CODE § 33.011(6). The Alleged RTPes did not cause or contribute to the harm underlying Pohl’s
conversion claim—Defendants’ f“unlawful taking” of Pohl’s property. Nor did they cause or
contribute to Defendants’ “yuse” of Pohl’s trade secrets, which is the harm underlying Pohl’s
TUTSA claim. SimpCly put, Kassab’s allegations about the Alleged RTPs’ conduct do not
sufficiently plead thaat the Alleged RTPs meet the statutory definition of a responsible third party.
f II. LEGAL STANDARD
AU party seeking to designate responsible third parties must timely file “a motion for leave
to designate” that pleads sufficient facts concerning those parties’ responsibility as responsible
third parties. See TEX. CIV. PRAC. & REM. CODE § 33.004(a) & (g). A party can object to the
motion on the basis that the movant did satisfy their pleading obligations. Id. § 33.004(g).
To withstand an objection, the movant must satisfy the notice pleading standard with its
allegations regarding the responsibility of potential responsible third parties. In re Cordish Co.,
617 S.W.3d 909, 913 (Tex. App.—Houston [14th Dist.] 2021, orig. proceeding). This requires the
movant to provide notice of the alleged duty breached and sufficient allegations kof causation, so
that the parties to the lawsuit “can ascertain from [the allegations] the nature land basic issues of
the controversy regarding causation, and what type of evidence might be rcelevant.” See id. at 915.
The statute defines a responsible third party, as a person whso “caused or contributed to
causing in any way the harm for which recovery of damages is sought, whether by negligent act
or omission, by any defective or unreasonably dangerous product, by other conduct or activity that
violates an applicable legal standard, or by any comb
ination of these.” TEX. CIV. PRAC. & REM.
CODE § 33.011(6). Importantly, responsibility for “harm” in this context is not the same as
responsibility for “damages.” See In re Smitah, 366 S.W.3d 282, 286 (Tex. App.—Dallas 2012,
orig. proceeding); City Nat’l Bank of Sulphur Springs v. Smith, No. 06-15-00013-CV, 2016 WL
2586607, at *7 (Tex. App.—Texarkeana May 4, 2016, pet. denied) (discussing how “harm” is
synonymous with “injury” and hafs a meaning distinct from “damages”).
A potential responsibyle third party must allegedly be responsible for the harm underlying
the pled cause of actionC, not merely be plausibly connected with the damages associated with that
harm. See City Nata’l Bank of Sulphur Springs, 2016 WL 2586607, at *7–9 (“to be a responsible
third party, onef must contribute to the harm for which damages are sought, not to the damages
themselvUes”); DLA Piper LLP (US) v. Linegar, 539 S.W.3d 512, 517 (Tex. App.—Eastland 2017,
pet. denied).
III. FACTUAL BACKGROUND ON POHL’S CLAIMS
In Pohl’s First Amended Petition, the live pleading, he asserts four different causes of
action: (1) A breach of contract claim; (2) conversion; (3) violations of TUTSA; and (4)
conspiracy. See Plaintiffs Michael Pohl and Law Office of Michael A. Pohlk, PLLC’s First
Amended Petition (the “Petition”) ¶¶ 35–43, filed Nov. 30, 2018. l
Pohl’s first claim, for breach of contract, is not subject to the procportionate responsibility
statute. See TEX. CIV. PRAC. & REM. CODE § 33.002 (“This chapters applies to: (1) any cause of
action based on tort . . . .”). The harm underlying Pohl’s conspiracy claim is entirely derivative of
the conversion and TUTSA claims, and thus there is no need to analyze it independently from
those claims. Thus, the only claims relevant to the responsible third party analysis are Pohl’s
claims for (1) conversion and (2) violations of TUTSA. See TEX. CIV. PRAC. & REM. CODE §
33.003 (stating trier of fact shall determine reasponsibility “as to each cause of action asserted”).
A. The harm or injury for Pohl’s conversion claim is the “unlawful taking” of his property.
Pohl’s conversion claim ceneters around his allegations that “Kassab and Montague
knowingly purchased [Pohl’s] stolfen information/property.” Petition ¶ 38. The “injury” or “harm”
that gives rise to a claim fyor conversion is a defendant’s “unlawful taking” of the plaintiff’s
property. See Burns v. Rochon, 190 S.W.3d 263, 271 (Tex. App.—Houston [1st Dist.] 2006, no
pet.). Each wrongfaul possession is a separate conversion. See Pemex Exploracion y Produccion
v. BASF Corp., fCIV.A. H-10-1997, 2013 WL 5514944, at *31 (S.D. Tex. Oct. 1, 2013) (applying
Texas law).
The conversions that Pohl complains about involve the Defendants in this lawsuit, not any
of the Alleged RTPs. See Petition ¶¶ 36–38. Thus, the alleged harms or injuries for which Pohl
seeks recovery for in relation to his conversion claim are the “unlawful takings” by Defendants in
this lawsuit.
B. The harm or injury for Pohl’s TUTSA claim is the wrongful “use” of his property.
Pohl’s TUTSA claim is based on the improper acquisition and sale of Pohl’s trade secrets,
particularly in relation to the sale and subsequent use of them by Kassab and Montague. See
Petition ¶¶ 39–42. The harm or injury giving rise to a trade-secret misappropriation claim, like
Pohl’s TUTSA claim, is the unauthorized use of the trade secrets. See Sw. Elnergy Prod. Co. v.
Berry-Helfand, 491 S.W.3d 699, 721 (Tex. 2016). c t
There are multiple harms or injuries for which Pohl seekss recovery of damages in
connection with his TUTSA claim. One such harm is when Pohl’s trade secrets were used by
Favre, Precision, and Nicholson in their sale of the trade secrets to Kassab and Montague. See
Petition ¶ 41; Berry-Helfand, 491 S.W.3d at 722 (discussing how “[u]se of the trade secret means
commercial use by which the offending party seeks to profit from the use of the secret.” (citation
omitted)). Another harm is Kassab and Montrague’s use of Pohl’s stolen trade secrets to bring
unfounded lawsuits against him. See Petition ¶¶ 26–29; Motion ¶ 12 (confirming Kassab used the
alleged stolen materials to solicit clieents to bring claims against Pohl).
fIV. DISCUSSION
Kassab does not bothyer to identify which Alleged RTP is responsible for which of Pohl’s
claims, nor does he identify the harms underlying Pohl’s claims that the Alleged RTPs are
supposed to have caaused or contributed to. See generally Motion. Kassab’s conclusory and vague
allegations do nfot meet the fair notice standard because Pohl cannot ascertain the nature and basic
issues of the potential controversies with the Alleged RTPs. Kassab has not sufficiently pled that
the Alleged RTPs violated legal duties in a way that proximately caused Pohl’s harms. Finally,
Kassab failed to timely provide notice of the identity of potential responsible third parties in his
discovery responses.
A. Shepherd is not a responsible third party.
Kassab’s allegations against Pohl’s attorney, Billy Shepherd, are especially tortured.
Kassab apparently contends that in the scope of Shepherd’s representation of Pohl in a separate
lawsuit, Shepherd failed to protect Pohl from Kassab’s intentionally tortious conduct. This theory
is as ridiculous as it sounds. Such a tenuous connection to the harm on its face ldoes not satisfy the
definition of a responsible third party. Kassab has not sufficiently pled cthtat Shepherd possessed
any legal duty that he violated, nor has he adequately alleged that Shespherd’s conduct proximately
caused Pohl’s harms. 
Kassab’s factual allegations concerning Shepherd are limited to three paragraphs. See
Motion ¶¶ 16–18. The only allegations relevant to establishing a duty are that Shepherd was
“Pohl’s attorney in the Mississippi Litigation,” and he negotiated a settlement with certain person
connected to that litigation. Id. ¶ 17. But Kassrab’s allegations only suggest that Shepherd owed
a duty in relation to “the Mississippi Litigation,” and nothing pled supports a duty on Shepherd’s
part to go out and prevent tortious acetivities “from all third parties” who may have gained access
to Pohl’s information. Id. Nor cafn Kassab allege in good faith that Shepherd was retained to do
so. Without adequate alleygations that Shepherd violated an applicable duty, he cannot be
designated as a respons
ible third party. See TEX. CIV. PRAC. & REM. CODE § 33.011(6).
Even if Kasasab’s conclusory allegations were sufficient at this stage to allege a legal duty,
he has not sufficfiently alleged that any breach of that duty proximately caused the harms suffered
by Pohl. Even if Kassab’s allegations were true, Shepherd’s conduct in relation to negotiating the
settlement in the Mississippi Litigation wase not a substantial and foreseeable factor in bringing
about the harms for which Pohl seeks recovery in connection with his conversion and TUTSA
claims. In fact, Kassab’s allegations actively undermine proximate cause, as Shepherd’s alleged
failure to go out and prevent the intentionally tortious conduct of third parties at most suggests
Shepherd “furnish[ed] a condition that made the injury possible.” Ambrosio v. Carter’s Shooting
Ctr., Inc., 20 S.W.3d 262, 266 (Tex. App.—Houston [14th Dist.] 2000, pet. denied). Alleging in
a conclusory manner that Shepherd could have stopped unspecified parties from engaging in
tortious conduct outside the litigation in which he represented Pohl does not sufkficiently allege
causation. l
Ultimately, there are not sufficient allegations that Shepherd vicolated a legal duty that
existed in a way that proximately caused Defendants’ “unlawful taksing” of (for the conversion
claim) or use of (for the TUTSA claim) Pohl’s confidential and trade secret information. See
generally Motion. Without sufficient allegations that Shepherd “caused or contributed to causing”
these harms, he cannot be designated as a responsibl
e third party. See TEX. CIV. PRAC. & REM.
CODE § 33.011(6).
B. The remaining Alleged RTPs do naot meet the definition of responsible third parties.
Kassab’s theory of why the other Alleged RTPs—Walker, Seymour, Ladner, Dona, Jaimes,
Talley and Santana—are responsiblee third parties is similarly lacking. Kassab fails to make any
factual allegations connecting onef Alleged RTP with the claims in this lawsuit, and for others,
Kassab makes the conclusoyry allegation that they independently “placed Pohl’s alleged trade
secrets and documents in the public domain,” not that they caused or contributed to Defendants’
unlawful taking or ause of those materials. See Motion ¶ 20. These allegations are not sufficient
to designate thefse persons as responsible third parties.
One of the most egregious examples of Kassab’s failure to satisfy the pleading requirement
is in relation to Dona. Kassab makes no particularized allegations concerning Dona at all. See
generally Motion. There is no explanation of who she is, what conduct she engaged in, why she
possessed a legal duty that she violated, or how she proximately caused or contributed to Pohl’s
harms. See id. Kassab’s single conclusory allegation that Dona, listed with six other Alleged
RTPs, “routinely placed Pohl’s alleged trade secrets and documents in the public domain,
circulating Precision’s marketing lists and other documents allegedly belonging to Pohl to
numerous third parties rather than safeguard these documents and lists,” is not sufficient to satisfy
the fair notice pleading standard. Id. ¶ 20. Even if that conclusory allegation wkere true, it does
not even suggest that Dona caused or contributed to the harms at issue in this lawlsuit—Defendants’
unlawful taking and/or use of Pohl’s materials. c
Kassab provides slightly more information in connection withs his allegations about Jaimes,
Talley and Santana. See Motion ¶¶ 5–10. However, none of those allegations connect Jaimes,
Talley or Santana with the harms underlying Pohl’s claims—Defendants’ unlawful taking and/or
use of Pohl’s materials. Like with Dona, the closest Kassab comes is the conclusory allegation
that these individuals “routinely placed Pohl’s alleged trade secrets and documents in the public
domain . . . . Id. ¶ 20. But this allegation doaes not provide fair notice of how these individuals
caused or contributed to the relevant harms in this lawsuit.1
Finally, Kassab alleges that eWalker, Seymour, and Ladner were previous owners of
Precision, allegedly making themf responsible for conversion by Defendants in the case. See
Motion ¶ 19. However, aty most, their ownership connects them with a separate instance of
conversion, which givCes rise to its own harm. See Pemex Exploracion y Produccion v. BASF
Corp., CIV.A. H-10a-1997, 2013 WL 5514944, at *31 (S.D. Tex. Oct. 1, 2013) (stating that when
property is allegfed to have been converted and then transferred to another party, “each possession
is a new cUonversion.” applying Texas law)). Movant’s allegations against Walker, Seymour, and
1 For many of the Alleged RTPs—such as Dona, Jaimes, Talley and Santana—Kassab did not allege that they had a
legal duty that they violated that proximately caused Pohl’s harms. See Motion ¶ 20. Instead, Kassab merely states
that these persons could have breached a duty “if” they “had an agreement and/or duty to safeguard any property,” but
without ever alleging such an agreement or duty existed. See generally id.
Ladner are not sufficient to demonstrate they are responsible for or contributed to the relevant
harms giving rise to the conversion and TUTSA claims against Defendants in this lawsuit.
C. Kassab has not timely disclosed the identities of responsible third parties.
Kassab cannot designate the Alleged RTPs as responsible third parties because the
limitations periods on Pohl’s torts claims have passed with respect the Allegedl RTPs, and Kassab
failed to comply with his obligations “to timely disclose that the[se] perscont[s] may be designated
as a responsible third party under the Texas Rules of Civil Procedusre.” See TEX. CIV. PRAC. &
REM. CODE § 33.004(d). Pohl’s conversion and TUTSA claims are subject to two and three-year
statutes of limitations respectively. See TEX. CIV. PRAC. & REM. CODE § 16.003(a) (conversion);
TEX. CIV. PRAC. & REM. CODE § 16.010(a) (trade secrets). Given that Pohl filed this lawsuit in
2018, these limitations periods have all run.
In response to Pohl’s requests for disclorsure, Kassab was required to provide “the name,
address, and telephone number of any person who may be designated as a responsible third party.”
TEX. R. CIV. P. 194.2(l) (rule in effecet for cases filed prior to Jan. 1, 2021). However, Kassab’s
responses do not provide this infofrmation.2 A party’s failure to provide any of the three pieces of
information in their disclosuyre responses can show they did not satisfy their “obligations under
Rule 194.2(l) and section 33.004(d).” See In re Dawson, 550 S.W.3d 625, 630 (Tex. 2018).
Kassab’s disaclosure responses do not name Shepherd as a person that may be designated
as a third partyf.
The responses also do not provide the address or telephone number for any
Alleged RTP.4 As a result, Kassab “may not designate [any Alleged RTP] as a responsible third
2 See Kassab Defendants’ First Amended Response to Plaintiffs’ Request for Disclosure, at 3, attached as Exhibit A.
3 See id.
4 See id.
party,” because he has not timely disclosed any Alleged RTP under the Texas Rules of Civil
Procedure. See TEX. CIV. PRAC. & REM. CODE § 33.004(d); Dawson, 550 S.W.3d at 630.
V. CONCLUSION
For the foregoing reasons, Plaintiffs Michael Pohl and Law Offices of Mkichael A. Pohl
object to Kassab’s Motion and request that the Court deny the Motion with lleave for Kassab to
attempt to replead. c
Dated: May 31, 2022 Respectfully submitted,
REYNOLDS FRIZZELL LLP
By: /s/ Jean C. Frizzell
Jean C. Frizzell
State Bar No. 07484650
1100l Louisiana St., Suite 3500
Haouston, Texas 77002
MTel. 713.485.7200
Fax 713.485.7250
ojfrizzell@reynoldsfrizzell.com
c Attorney for Plaintiffs Michael Pohl
f and Law Office of Michael A. Pohl, PLLC
CERTIFICATE OF SERVICE
I hereby ccertify that a true and correct copy of this document was served on all counsel of
record pursuantf to the Texas Rules of Civil Procedure on this 31st day of May, 2022.
/s/ Jean C. Frizzell
Jean C. Frizzell
10
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: 64998436
Status as of 6/1/2022 8:30 AM CST
Case Contacts r i
Name BarNumber Email TimestampSubmitted Status
Zandra EFoley zfoley@thompsoncoe.com s5/31/2022 5:00:45 PM SENT
Andrew Johnson ajohnson@thompsoncoe.comg5/31/2022 5:00:45 PM SENT
Jean C.Frizzell jfrizzell@reynoldsfrizzell.coum 5/31/2022 5:00:45 PM SENT
Murray JFogler mfogler@foglerbrar.com 5/31/2022 5:00:45 PM SENT
Andrew J. Sarne asarne@krcl.com y 5/31/2022 5:00:45 PM SENT
Dale Jefferson 10607900 jefferson@mdjwalaw.com 5/31/2022 5:00:45 PM SENT
Larry Newsom lnewsom@krcl.com 5/31/2022 5:00:45 PM SENT
Jason M.Ciofalo jason@cioofalolaw.com 5/31/2022 5:00:45 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 5/31/2022 5:00:45 PM SENT
Solace Southwick ssofuthwick@reynoldsfrizzell.com 5/31/2022 5:00:45 PM SENT
E. MarieJamison jamison@wrightclosebarger.com 5/31/2022 5:00:45 PM SENT
Todd Taylor pttaylor@jandflaw.com 5/31/2022 5:00:45 PM SENT
Raul Herman Suazo 24003C021 suazo@mdjwlaw.com 5/31/2022 5:00:45 PM SENT
Kevin Graham Cain 24a01l2371 cain@mdjwlaw.com 5/31/2022 5:00:45 PM SENT
Jessica Z.Barger barger@wrightclosebarger.com 5/31/2022 5:00:45 PM SENT
Chris C.Pappas o cpappas@krcl.com 5/31/2022 5:00:45 PM SENT
Todd Taylor U ttaylor@jandflaw.com 5/31/2022 5:00:45 PM SENT
David R.Wade lawyerwade@hotmail.com 5/31/2022 5:00:45 PM SENT
Katie Budinsky kbudinsky@krcl.com 5/31/2022 5:00:45 PM SENT
Scott M.Favre scott@favrepa.com 5/31/2022 5:00:45 PM SENT
Lance Kassab eserve@kassab.law 5/31/2022 5:00:45 PM SENT
Murray Fogler mfogler@fbfog.com 5/31/2022 5:00:45 PM SENT
Kathryn Laflin KLaflin@KRCL.com 5/31/2022 5:00:45 PM SENT"
10,2018-11-05,OBJ,Kassab,Objections to Pohl’s TCPA response evidence,Kassab's Objections to Plaintiffs' Response Evidence and Reply in Support of TCPA Motion to Dismiss,"Filed November 5, 2018 as a combined objection and reply brief in further support of Kassab's TCPA Motion to Dismiss. Responds to Pohl's November 1, 2018 opposition, challenging the admissibility of Pohl's evidence and arguing the commercial speech exception does not apply. Filed in Cause No. 2018-58419, 189th Judicial District Court, Harris County, Texas. Addressed to the Honorable Judge Bill Burke.",TCPA-1,N/A,Phase 1,2018-11-05_OBJ_Kassab-Objections-to-Pohl-Response_FILED.pdf,Grant the TCPA Motion to Dismiss; strike Shepherd affidavit and all attached documents; strike Pohl's declaration paragraphs 3-9; order Plaintiffs take nothing; award reasonable and necessary attorney's fees and costs as required by the statute,"11/5/2018 8:03 AM
Chris Daniel - District Clerk Harris County
Envelope No. 28779207
By: Deandra Mosley
Filed: 11/5/2018 8:03 AM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et al § IN THE DISTRICT COURT
V. § OF HARRIS COUNTY, TEXAS
SCOTT FAVRE, et al § 189th JUDICIAkL DISTRICT
THE KASSAB DEFENDANTS’ OBJECTIONS TO PLAINTlIFFS’
RESPONSE AND REPLY IN SUPPORT OF MOTION TO DISMISS
TO THE HONORABLE JUDGE BILL BURKE: r
Defendants/Counter-Plaintiffs Lance Christopher Kassab Dand Lance Christopher Kassab,
P.C. d/b/a/ The Kassab Law Firm (“Kassab”) file this reply asnd objections in further support of
their Motion to Dismiss Pursuant to the Texas Citizens Parrticipation Act.
OBJECTIONS
A. Plaintiffs’ Exhibit A (Affidavait of Billy Shepherd)
Kassab objects to Plaintiffs’ Exhibit A, the alleged affidavit of Billy Shepherd
(“Shepherd”) and all exhibits attacheed thereto. Specifically, Shepherd’s affidavit fails as an
affidavit on its face because itf is not based upon “personal knowledge” or state that the
statements therein are “true yand correct”, thus perjury does not attach, and therefore, the alleged
affidavit is nothing moCre than a statement by Pohl’s “interested” counsel. An affidavit must be
based on the affianta’s personal knowledge and must state that the facts in it are true. Humphreys
v. Caldwell, 88
8f S.W.2d 469, 470 (Tex. 1994); see TEX. R. EVID. 602 (evidence must show the
witness hUas personal knowledge); Radio Station KSCS v. Jennings, 750, S.W.2d 760, 761-62
(Tex. 1988). An affidavit must contain direct and unequivocal statements that, if false, would be
grounds for perjury. Burke v. Satterfield, 525 S.W.2d 950, 955 (Tex. 1975); Hall v. Stephenson,
919 S.W.2d 454, 466 (Tex. App.—Fort Worth 1996, writ denied).
Additionally, Shepherd’s statement appears to attempt to prove up business records, but
this attempt fails. To introduce a business record through a witness, a party must prove the
following: (1) the record is a memorandum, report, other compilation of data; (2) the witness is
the custodian or another qualified witness; (3) the record was made from informaktion transmitted
by a person with knowledge of the facts; (4) the record was made at or near thle time of the acts,
events, conditions, opinions, or diagnoses appearing on it; (5) the recordc was made as part of the
regular practice of that business activity; and (6) the record was kepst in the course of a regularly
conducted business activity. See TEX. R. EVID. 101 (h)(4),
803 (6)(A)-(6)(D); Freeman v.
American Motorists Ins., 53 S.W.3d 710, 715 (Tex. App.—Houston [1st Dist.] 2001 no pet.).
The alleged affidavit fails in all respects.
The alleged affidavit also fails to conform with Texas Rules of Evidence, 902 (10), and
therefore, fails to establish the exhibits as baus r iness records.1 Specifically, the alleged affidavit
fails to adequately show that Shepherd is the custodian of records or otherwise establish how he
knows what each particular documeent is other than he is a lawyer for Pohl. This does not
establish the requisite “knowledgfe.” See id. Therefore, the documents attached as exhibits are
nothing more than hearsay yupon hearsay. TEX. R. EVID. 902 (10). Moreover, Shepherd has
failed to provide the Crequisite notice of his filing. Id. For these reasons, the “affidavit” of
Shepherd and all doacuments attached must be struck from the record.
B. Pflaintiffs’ Exhibit B (Declaration of Michael A. Pohl).
KUassab objects to Plaintiffs’ Exhibit B, the sworn declaration of Michael A. Pohl,
Paragraphs 3, 4, 5, 6, 7, 8 and 9. The statements contained in this declaration are conclusory and
constitute no evidence at all. Conclusory affidavits do not raise fact issues and are incompetent
evidence as a matter of law. Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996);
1 Response, at Exhibit A.
Stephens v. Precision Drilling Oilfield Servs. Corp., No. 01-11-00326-CV, 2013 Tex. App.
LEXIS 5700, 2013 WL 1928797, at *19 (Tex. App.—Houston [1st Dist.] May 9, 2013, no pet.)
(mem. op.). “A conclusory statement is one that does not provide the underlying facts to support
the conclusion.” Dolcefino v. Randolph, 19 S.W.3d 906, 930 (Tex. App. – Houskton [14th Dist.]
2000, pet. denied). Moreover, an affidavit is conclusory when it expresses “la factual inference
without stating the underlying facts on which the inference is based.” E.Ic. du Pont de Nemours &
Co. v. Shell Oil Co., 259 S.W.3d 800, 809 (Tex. App.—Houston [1sts Dist.] 2007, pet. denied).
Pohl’s declaration consists of nothing but conclusory statements. Kassab objects to
Paragraph 3, which states: “I was and am the rightful owner of the confidential, privileged and
trade secrete information that Kassab obtained from Scott Favre and Tina Nicholson on which
this suit is based.”2 This statement is conclusory because Pohl fails to describe what the
purported confidential information or trade seacrets are or explain how he is the rightful owner of
this information as opposed to Scott Favre or his entities who have claimed to be the owner of
the marketing lists provided to Kassaeb. Moreover, Pohl fails to explain how the information even
constitutes a trade secret. See Gafme Sys. v. Forbes Hutton Leasing, Inc., No. 02-09-00051-CV,
2011 Tex. App. LEXIS 4098y, at *76 (Tex. App. – Fort Worth, May 26, 2011, no pet.) (mem. op.)
(statement that the softCware “constitutes a trade secret” was conclusory and not proper evidence).
Kassab objeacts to Paragraph 4 which states, “I did not provide consent for Kassab to
exercise dominifon and control over the property, and his exercise of that dominion and control is
wrongfulU.”3 Pohl does not provide any factual support for this statement or explain why Kassab’s
exercise and control over lists he obtained rightfully from Favre or his counsel is wrongful. See
2 Response, Exhibit B, ¶ 3.
3 Response, Exhibit B, ¶ 4.
McCollum v. Bank of N.Y. Mellon Tr. Co., 481 S.W.3d 352, 362 (Tex. App.—El Paso 2015, no
pet.) (conclusory statements in affidavit that conduct is “allegedly wrongful” is insufficient to
raise fact issue that conduct alleged is in fact wrongful).
Kassab objects to Paragraph 5 which states, “I have incurred damagesk as a result of
Kassab’s conversion of my property, through at the very least, by thel exposure of the
confidential materials and information, which results in a loss of the cintrinsic value to me as
trade secrets and confidential materials.”4 Again, Pohl does not prosvide any factual support for
the conclusion that he had been damaged. Pohl does not state what the alleged trade secrets or
confidential materials are or explain how he is allegedly damaged by Kassab’s alleged
misappropriation of the material. See Celtic Props., L.C. v. Cleveland Reg'l Med. Ctr., L.P., No.
09-13-00464-CV, 2015 Tex. App. LEXIS 8051, 2015 WL 4600661, at *3 (Tex. App.—
Beaumont July 31, 2015, no pet.) (mem. op.)a (statement that property was “damaged” as a result
of defendant’s conduct was insufficient as a matter of law); Chapa v. Stonehaven Dev., Inc., No.
13-13-00030-CV, 2013 Tex. App. LeEXIS 10159, at *9 (Tex. App. – Corpus Christi, Aug. 15,
2013, no pet.) (mem. op.) (statefment “we lost the profits we would have made” is conclusory
because it provides no undeyrlying facts to support the conclusion); see also Fraud-Tech, Inc. v.
Choicepoint, Inc., No.C 02-05-150-CV, 2006 Tex. App. LEXIS 3181, 2006 WL 1030189, at *5
(Tex. App.—Fort Waorth Apr. 20, 2006, no pet.) (mem. op.) (finding affidavit testimony that
appellants weref damaged because of the alleged conversion conclusory when affiant did “not
supply faUcts underlying its conclusions”).
Kassab objects to Paragraph 6 which states “Before they were stolen, I took substantial
measures to maintain the materials and information that Kassab obtained from Scott Favre and
4 Response, Exhibit B, ¶ 5.
Tina Nicholson as confidential and protected them as valuable trade secrets. I strictly limited
access to them and by maintaining physical copies under lock and key.”5 These statements are
conclusory. Pohl does not describe what “substantial” measures he allegedly took to maintain
information obtained by Kassab, what the information obtained by Kassab even kis, or state how
the information obtained by Kassab is allegedly a “valuable trade secret.” Polhl makes no effort
to describe how he “strictly limited” access to his alleged confidential icnformation given that it
freely ended up in the hands of Favre, who claimed ownerships of the marketing material
provided to Kassab. 
Kassab objects to Paragraph 7 which states, “The stolen materials and information have
independent economic value from not being generally known to, and not readily being
ascertainable through proper means by, another person who can obtain economic value from the
disclosure or use of the information.”6 This staat r ement is conclusory as Pohl does not provide any
facts to support this statement. Pohl does not describe how any materials were purportedly
stolen, what the materials even are, ehow the materials are not known to the general public, or
how the materials allegedly provifde economic value to Pohl.
Kassab objects to pyaragraph 8 which states “Kassab’s misappropriation of my trade
secrets has caused meC damages in both the form of actual loss of the value of my confidential
materials and of unajust enrichment to Kassab as a result of his wrongful misappropriation.”7 This
statement is confclusory. Pohl provides no facts to explain how Kassab allegedly misappropriated
the tradeU secrets, how the information even constitutes a trade secret, or how the loss of the
5 Response, Exhibit B, ¶ 6.
6 Response, Exhibit B, ¶ 7.
7 Response, Exhibit B, ¶ 8.
information allegedly caused Pohl damages or unjustly enriched Kassab. See Plas-Tex, Inc. v.
Jones, NO. 03-99-00286-CV, 2000 Tex. App. LEXIS 3188, at *18 (Tex. App. – Austin, May 18,
2000, pet. denied) (mem. op.) (“conclusory statements regarding the value of intangible assets
such as unidentified trade secrets” was insufficient to support claim of damages)k. The purported
loss to Pohl of any alleged misappropriation of trade secrets is also speculativel.
Finally, Kassab objects to Paragraph 9 which states “In the sacme ways that Kassab’s
conversion and misappropriation of my confidential information injusred me, I was injured by the
conspiracy to commit those torts.”8 This is a conclusory statement within a conclusory statement.
Pohl does not describe the purported conversion or misappropriation and makes no effort to
provide any facts supporting the alleged conspiracy claims. This statement is insufficient as a
matter of law. See Methodist Hosp. v. Zurich Am. Ins. Co., 329 S.W.3d 510, 530 (Tex. App.—
Houston [14th Dist.] 2009, pet. denied) (caoncluding that affiant’s “bare assertion” that the
conduct of the opposing party was the “causal connection” of its damages was conclusory and
“substantively defective” and nothinge more than affiant’s subjective opinion).
f II
REPLY
A. Any documentation that Kassab obtained from Favre and/or his
counselC, Tina Nicholson come from Precision, not Pohl.
Pohl arguesa that Kassab converted and stole his files. However, the evidence is clear that
any documents fKassab obtained from Favre or Nicholson came into Favre’s possession when he
purchasedU Precision Marketing Group. Precision owned the documents, not Pohl. Even
assuming arguendo that the documents were somehow part of Pohl’s legal files, which Kassab
8 Response, Exhibit B, ¶ 9.
denies, Pohl still would not own the files because those files would belong to the client. Texas
Rule of Professional Conduct, 1.15 (d) specifically provides:
Upon termination of representation, a lawyer shall take steps to the extent
reasonably practicable to protect a client’s interests, such as giving reasonable
notice to the client, allowing time for employment of other counsel, surrenkdering
papers and property to which the client is entitled and refunding anyr advance
payments of fee that has not been earned. The lawyer may retain paplers relating
to the client to the extent permitted by other law only if such retention will not
prejudice the client in the subject matter of the representation. c
TEX. DISCIPLINARY R. PROF’L. CONDUCT 1.15 (d) (emphasis added).s
The Rule cited above is clear and concise. Moreover, the courts enforcing this Rule are
clear and unambiguous. The Texas Supreme Court has stated, “The attorney is the agent of the
client, and the work product generated by the attorney in representing the client belongs to the
client.” In Re Kenneth George-consolidated with- In Re Epic Holdings, Inc., 28 S.W.3d 511,
516 (Tex. 2000); see also Hebisen v. State, 6a15 r S.W.2d 866, 868 (Tex. Civ. App.—Houston [1st
Dist.] 1981, no writ). Moreover, everything in the entire file having to do with a clients’
representation, i.e. attorney notes, elegal memoranda, etc., etc., etc. belongs to the client.
Resolution Trust Corp. v. H--, Pf.C., 128 FRD 647, (N.D. Tex. 1989) (holding that the attorney
may retain a copy of the filey at the attorney’s expense, however, the original file belongs to the
client); Nolan v. FCoreman, 665 F.2d 738, reh’g denied, 671 F.2d 1380 (5th Cir.
1982). Furthermorea, the contents of a client’s file must be turned over to the client promptly
upon request. Hfebisen, 615 S.W.2d at 868. The failure to do so is willful and malicious, and
constituteUs dishonorable conduct. Smith v. State, 490 S.W.2d 902, 909 (Tex. Civ. App.—
Corpus Christi 1972, writ ref’d, n.r.e.). Retention of documents is only permitted to secure a
debt if and only if such retention will not prejudice the client in the subject matter of the
representation. Smith, 490 S.W.2d at 910; TEX. DISCIPLINARY R. PROF’L. CONDUCT 1.15 (d).
Therefore, Pohl lacks standing to sue Kassab for conversion or theft of trade secrets because Pohl
never owned any of the subject documents.
B. The commercial exception does not apply.
Pohl argues in his response that the TCPA does not apply to this case bekcause this case
falls under the statutory exemption for commercial speech found in sectioln 27.010(b). This
section states: c
[The TCPA] does not apply to a legal action brought againsst a person primarily
engaged in the business of selling or leasing goods or servDices, if the statement or
conduct arises out of the sale or lease of goods, services, or an insurance product,
insurance services, or a commercial transaction in whisch the intended audience is
an actual or potential buyer or customer.
TEX. CIV. PRAC. & REM. CODE § 27.010(b). “The par
ty asserting the exemption bears the burden
of proving its applicability.” See Castleman v. Internet Money Ltd., 546 S.W.3d 684, 688 (Tex.
2018); Schimmel v. McGregor, 438 S.W.3d 8a47, 857 (Tex. App.—Houston [1st Dist.] 2014, pet.
denied). 
Pohl contends that that his ceonversion and theft of trade secrets claims fall within this
exemption because (1) Kassab wfas primarily engaged in the business of selling legal services;
(2) the claims against Kassayb arose from Kassab’s conduct in allegedly purchasing Pohl’s list of
clients and former clCients for the purpose of soliciting those clients; (3) Kassab’s conduct
occurred in the coaurse of delivering his legal services; and (4) the intended audience of his
conduct was a pfotential buyer, the clients.9 This is not accurate.
InU determining whether some of Pohl’s claims fall within the commercial-speech
exemption, the Court must examine the evidence, which in this case consists of Pohl’s own
pleadings. See TEX. CIV. PRAC. & REM. CODE § 27.006. Pohl alleges that Favre and his counsel
9 Response, p. 11.
stole from him information about his clients and prospective clients and “secretly sold Pohl’s
stolen confidential information and property to Kassab” and that Kassab “knew that the
information and property that [he was] purchasing was stolen and not Favre’s and/or [his
counsel’s] to sell.”10 Pohl alleges that “Using the stolen confidential informatiokn and property
that he knowingly purchased, Kassab solicited those clients/prospective clientsl to act as plaintiffs
… to bring cases against Pohl for alleged barratry and other claims.”11 Pco t hl does not allege that
the agreement between Kassab and Favre effectuated a sale of legasl services or that any of the
conduct for which he sues Kassab arises out of the sale of services that Kassab is “primarily
engaged” in.
“The exemption expressly provides that the TCPA does not apply to a legal action
brought against a person primarily engaged in the business of selling or leasing goods or
services, but only if the statement or conducat arises out of the sale or lease of goods, services,
or an insurance product, insurance services, or a commercial transaction.” Castleman, 546
S.W.3d at 688 (emphasis added) (inteernal quotations omitted). The Texas Supreme Court opined
in Castleman that the exception fcan only apply when “(1) the defendant was primarily engaged
in the business of selling ory leasing goods, (2) the defendant made the statement or engaged in
the conduct on which Cthe claim is based in the defendant's capacity as a seller or lessor of those
goods or services, a(3) the statement or conduct at issue arose out of a commercial transaction
involving the kifnd of goods or services the defendant provides, and (4) the intended audience of
the statemUent or conduct were actual or potential customers of the defendant for the kind of
goods or services the defendant provides. Id. Pohl has failed to prove establish each of these
elements.
10 Plaintiffs’ Original Petition, ¶ 21.
11 Plaintiffs’ Original Petition, ¶ 22.
More specifically, even if the alleged conduct at issue (i.e., conduct amounting to
conversion or theft of trade secretes) “arose out of” Kassab’s alleged theft of trade secrets or
conversion of files, as Pohl alleges, Pohl has nevertheless failed to establish that this type of
conduct is a “commercial transaction involving” legal services or any other type kof services that
Kassab is primarily engaged in. See id. In other words, Pohl has not establlished that Kassab
“engaged in the conduct on which the claim is based in the defendant'cs capacity as a seller or
lessor of those goods or services.” Id. Stated another way, Kassab sis not primarily engaged in
purchasing marketing lists and client files, which is the business which Pohl alleges these claims
arise. Similarly, with respect to the fourth element of the commercial exception, Pohl has failed
to demonstrate that the intended audience of Kassab’s alleged conduct (i.e., the conversion and
theft of trade secrets) were actual or potential customers of Kassab for the kind of goods or
services that Kassab is “primarily engaged” ina. See id. Consequently, Pohl has therefore failed to
establish that his conversion and theft of trade secret claims fall within the commercial-speech
exemption. e
f III
CONCLUSION & PRAYER
For the reasons set forth herein and in the initial motion, Defendants/Counter-Plaintiffs
Lance Christopher Kassab and The Kassab Law Firm respectfully request the Court to grant this
Motion to Dismiscs Pursuant to the Texas Citizens Participation Act and order that Plaintiffs take
nothing in their claims against Lance Christopher Kassab and The Kassab Law Firm and award
reasonable and necessary attorney’s fees and costs as required by the statute.
10
Respectfully submitted,
THE KASSAB LAW FIRM
/ s / Lance Christopher Kassab
LANCE CHRISTOPHER KASSAB
Texas State Bar No. 0079407k0
lance@kassab.law r
DAVID ERIC KASSAB
Texas State Bar No. 24071351
david@kassab.law c
1214 Elgin Street r
Houston, Texas s77004
Telephone: 71D3.522.7400
Facsimile: 713.522.7410
ATTORNEYS FOR LANCE CHRISTOPHER
KASSAB rAND THE KASSAB LAW FIRM
CERTIFICAaTE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing instrument has
been forwarded to all parties pursuant too the Texas Rules of Civil Procedure on this the 5th day of
November, 2018. e
f / s / Lance Christopher Kassab
Lance Christopher Kassab
11"