filing_id,date,doc_type,party,description,doc_type_detail,procedural_posture,chain,outcome,phase,filename,relief_requested,full_text
60,2023-09-18,RPL,Pohl,Reply ISO Mtn for Final Judgment,"Pohl's Reply in Support of Motion for Entry of Final Judgment, responding to Kassab's five objections to the proposed judgment regarding exemplary damages unanimity, attorneys' fees recoverability, overlapping damages, conspiracy preemption, and Precision's exoneration","Reply brief filed September 18, 2023 in the 281st Judicial District Court, Harris County, Cause No. 2018-58419. Filed three days after Kassab's September 15, 2023 objections to Pohl's September 5, 2023 Motion for Entry of Final Judgment. Addresses each of Kassab's five objections and argues the court must enter judgment consistent with the jury verdict.",JDGMT-1,N/A,Phase 5,2023-09-18_RPL_Pohl-Reply-ISO-Mtn-for-Final-Judgment_FILED.pdf,That the Court overrule Kassab's objections and enter the Final Judgment in the form attached to the Motion as Exhibit B,"9/18/2023 8:21 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 79681130
By: Bonnie Lugo
Filed: 9/18/2023 8:21 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL AND LAW OFFICE OF § IN THE DISTRICT COURT OF
MICHAEL A. POHL, PLLC, §
Plaintiffs, §
V. § k
§ e
SCOTT FAVRE and SCOTT M. FAVRE PA, § C l
LLC; PRECISION MARKETING GROUP, § HARRIS COUNTY, TEXAS
LLC; LANCE CHRISTOPHER KASSAB and § c
LANCE CHRISTOPHER KASSAB, P.C. d/b/a § r
THE KASSAB LAW FIRM; TINA § s
NICHOLSON and BAKER NICHOLSON, §
LLP d/b/a BAKER NICHOLSON LAW § s
FIRM; and DOUGLAS MONTAGUE III and § s
MONTAGUE PITTMAN & VARNADO, P.A., §
Defendants. § r281ST JUDICIAL DISTRICT
POHL’S REPLY IN SUPPORT OF HIS MOTION FOR ENTRY OF FINAL JUDGMENT
On September 5, 2023, Plaintiffs Michaell Pohl and Law Offices of Michael A. Pohl PLLC
(collectively, “Pohl”) filed their motion foMr entry of a Final Judgment and to adjudge costs (the
“Motion”). On September 15, 2023, Lance Christopher Kassab and Lance Christopher Kassab,
P.C. d/b/a The Kassab Law Firm’s (collectively, “Kassab”) filed Objections to Pohl’s Proposed
Final Judgment (the “Response”). Kassab fails to demonstrate in the Response that the Court
would commit error in any way by entering final judgment in the form requested by Pohl.
 OVERVIEW
Kassab liscts five general objections to entry of judgment. None of the objections withstand
scrutiny.
• Kassab objects to the inclusion of exemplary damages in the judgment because he
contends the Jury’s answer of “Yes” to Question 17 was not unanimous. But
Kassab is factually incorrect because, on its face, the Jury Verdict shows that the
Jury unanimously answered “Yes” to Question 17. The Court instructed the Jury
to only answer “Yes,” in response to Question 17 if it was unanimous, and the Jury
is presumed to have followed those instructions. Moreover, the Court instructed
the Jury to answer Question 19 “only if you unanimously answered “Yes” to
Question no. 17,” and the Jury answered Question 19. k
• Kassab objects to the inclusion of attorneys’ fees from a prCiorl lawsuit as part of
Pohl’s damages. But Pohl’s damages are recoverable, becacuse attorneys’ fees from
a prior, different lawsuit—not the current lawsuit—can properly constitute actual
loss, which are recoverable damages under TUTSsA.
• TUTSA expressly authorizes the recovery ofg both actual loss and unjust enrichment
damages together. The Jury was instruBcted to not award duplicative damages and
awarded both damages. Thus, Pohyl is entitled to recover both amounts.
• Conspiracy is a means of imaposing joint and several liability. It is not an
independent claim givingf rise to a remedy that could conflict with TUTSA.
Conspiracy is not preempted by TUTSA or the proportionate responsibility statute,
and Kassab was unfable to cite any binding precedent stating otherwise.
• The jury’s finding that Precision did not misappropriate trade secrets is consistent
with itsC finding that Kassab—who acquired those trade secrets from Favre, not
Precision—did misappropriate Pohl’s trade secrets.
f DISCUSSION
I. TUhe Jury properly awarded Pohl exemplary damages.
Kassab contends that an award of exemplary damages is unsupported and improper
because the Jury did not unanimously answer “Yes” in response to Question 17. See Response at
3. This is not true. On its face, the Jury Charge shows that the Jury unanimously answered “Yes”
to Question 17 after being instructed to only answer “Yes” if the finding was unanimous. If Kassab
believed that the certificate of unanimity was in conflict with the findings contained in the Jury
Verdict, it was his duty to request a polling of the Jury. While no actual conflict exists, Kassab’s
failure to raise this issue waived any conflict that might exist. k
“The jury is presumed to have followed the court’s instructions.” Collumbia Rio Grande
Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 862 (Tex. 2009). When cpossible, a court “must”
“reasonably construe the [jury’s] findings in a way that harmonizes thsem.” USAA Tex. Lloyds Co.
v. Menchaca, 545 S.W.3d 479, 509 (Tex. 2018); Bender v. S. Psac. Transp. Co., 600 S.W.2d 257,
260 (Tex. 1980). Failure to reconcile answers in favor of the jury’s verdict when possible is
reversible error. Luna v. Southern Pacific Transp. Co., 724 S.W.2d 383, 384 (Tex. 1987). Even
where the jury findings are ambiguous or unclear, the court must try to interpret the findings so as
to uphold the verdict. Jackson v. U.S. Fid. & Gauar. Co., 689 S.W.2d 408, 412 (Tex. 1985). When
a party contends that a jury’s award of exemplary damages is not supported by a unanimous jury
finding, it is reviewed as a “no evidenece” point. Redwine v. Peckinpaugh, 535 S.W.3d 44, 50 (Tex.
App.—Tyler 2017, no pet.). f
There is clear evidenyce that the Jury made the required unanimous findings supporting an
award of exemplary daCmages. First, the fact that the Jury answered “Yes” in response to Question
17 shows that its finding was unanimous. The Jury was instructed that it could only answer “Yes”
to Question 17f iff its answer was “unanimous.”1
SeUcond, the fact that the Jury awarded exemplary damages in response to Question 19 also
shows that its answer to Question 17 was unanimous. The Court instructed the Jury that it could
only answer Question 19 if the Jury “unanimously answered ‘Yes’ to Question No. 17 or Question
1 Jury Charge at 24, attached as Ex. A to the Motion.
No. 18.”2 The Jury did not answer Question 18.3 But the Jury answered Question 19 and found
that an award of exemplary damages of $3,000,000 against Kassab was proper.4 Given the Court’s
instructions, the Jury only could have answered this question if it unanimously answered “Yes” to
Question 17. k
The Court’s instructions to the Jury show that its answer in response tlo Question 17 was
unanimous. See Bruce v. Oscar Renda Contracting, 657 S.W.3d 453, 4c64 (Tex. App.—El Paso
2022, pet. filed) (“Because the jury was instructed to only answer thse gross negligence question,
and the exemplary damages award question if unanimity was resached, we must presume it did so
by following the instructions.”). In contrast, Kassab’s argument requires the Court to presume that
the Jury ignored the Court’s instructions in response to multiple questions, which would be an
improper and impermissible presumption. Columbia Rio Grande Healthcare, L.P., 284 S.W.3d at
862 (“The jury is presumed to have followed athe court’s instructions.”). Kassab contends that the
Jury’s answer to Question 17 was not unanimous because the Presiding Juror appears to have
inadvertently failed to sign the certificeate of unanimity with respect to Question 17. See Response
at 3–4. This contention is not sufpported by the Jury’s affirmative findings based on the Court’s
instructions as reflected in thye Jury Verdict.
The Dallas CouCrt of Appeals confronted a similar situation in Stover v. ADM Milling Co.,
No. 05-17-00778-CV, 2018 WL 6818561 (Tex. App.—Dallas Dec. 28, 2018, pet. denied). The
court was askefdf to find that the jury’s award of exemplary damages was not supported “because
the findinUgs on the threshold jury question nos. 5 and 6 were not certified to be unanimous.” 2018
WL 6818561, at *12. But the court rejected this argument and found that “the evidence is legally
2 Id. at 26.
3 Id. at 25.
4 Id. at 26.
sufficient to support the jury's award of exemplary damages” because the jury later unanimously
answered questions predicated on unanimous answers to question nos. 5 and 6. See id. The court
held:
[W]e address Holmes and Holmes Law's argument that the evidence wask legally
insufficient to support the jury's award of exemplary damages in jury qeuestion no.
17 because the findings on the threshold jury question nos. 5 and l6 were not
certified to be unanimous. In support of their argument, they point to the verdict
certificate where the jury stated, ‘Our verdict is not unanimous. Ecleven of us have
agreed to each and every answer and have signed the certificate rbelow.’ However,
the record also contains an additional certificate signed by thse presiding juror that
states, ""I certify that the jury was unanimous in answering QDuestion No. 15, 16, 17,
and 18. All 12 of us agreed to each of the answers."" In sjury question nos. 5 and 6,
the jury found Holmes and Holmes Law liable for comsmon law fraud and statutory
fraud. The instructions for those jury questions did not require a unanimous
verdict. However, both jury question nos. 15 (clrear and convincing evidence of
fraud and statutory fraud) and 16 (malice) instructed the jury to answer those
questions ‘only if [] [they] [] unanimously answered 'Yes' to any part of Question
No. 5 [common law fraud] or if [they] unanimously answered 'Yes' to any part of
Question No. 6 [statutory fraud] and Quelstion No. 7 [actual awareness].’ Further,
jury question no. 17 (exemplary damaages) instructed the jury that they should only
answer the question ‘if [they] unaMnimously answered 'Yes' to Question 15 or
Question No. 16.’ The jury is presumed to have followed the trial court's
instructions. See, e.g., Columbia Rio Grande Healthcare L.P. v. Hawley, 284
S.W.3d 851, 862 (Tex. 2009)e. We conclude the evidence is legally sufficient to
support the jury's award of exemplary damages in jury question no. 17. Holmes
and Holmes Law's issue 3f.3(a) is decided against them.
Id. y
Stover is directCly on point with the facts of this case and directly refutes the argument
asserted by Kassab.a
In contrafst, the case Kassab relies on—Redwine v. Peckinpaugh, 535 S.W.3d 44, 50 (Tex.
App.—TyUler 2017, no pet.)—is different for many reasons. In Redwine, the jury had a single cause
of action for defamation before it. Redwine, 535 S.W.3d at 47. While it answered an exemplary
damages question that it was instructed to only answer if unanimous, its answer was directly in
conflict with its certification that the entire verdict was otherwise not unanimous. See id. at 51–
52. The court then polled the jury and confirmed the lack of unanimity. See id.
As explained in Bruce v. Oscar Renda Contracting, because Redwine dealt with a single
cause of action giving rise to liability, the certification of non-unanimity was in conflict with an
award of exemplary damages. 657 S.W.3d 453, 464 (Tex. App.—El Paso 2022, pet. filed). The
court in Bruce contrasted the facts in Redwine with a set a facts similar to those in thkis case, saying:
“We conclude that the jury’s certification at issue here does not have the samle conclusive effect
as it did in Redwine, given that this jury was permitted to answer severacl questions by a 10 to 2
vote, unless otherwise instructed to only answer upon reaching unansimity.” Id. In other words,
because not all of the verdict needed to unanimous, a general cerstificate of non-unanimity is not in
conflict with an award of exemplary damages.
Furthermore, in this case, like in Stover, the jury unanimously answered a question
(Question 19) that was predicated on a unanimous answer to Question 17 after answering Question
17. Like in Stover, the Jury here could not haave answered the latter question (Question 19) unless
it unanimously answered the earlier question at issue (Question 17). That was not the case in
Redwine. e
The Jury is presumed to have ffollowed the Court’s instructions, and the Court must “reasonably
construe the [jury’s] findingsy in a way that harmonizes them.” USAA Tex. Lloyds Co., 545 S.W.3d
at 509. Given the JurCy’s responses to Questions 17 and 19, and the Court’s related unanimity
instructions, the only reasonable construction of the Jury’s findings is that the Jury was unanimous
in answering “Yf fes” to Question 17. Because there is evidence indicating that the Jury unanimously
found exeUmplary damages against Kassab, the Court “must” give effect to the Jury’s findings and
enter a judgment awarding exemplary damages against Kassab. See id.; Bender v. S. Pac. Transp.
Co., 600 S.W.2d at 260.
Finally, and as we previously stated, while no actual conflict in the Jury’s answers exists,
Kassab’s failure to raise this issue before the Jury was discharged waived the alleged conflict that
Kassab now claims to exist. Texas law is well settled that “to preserve error based on fatally
conflicting jury answers, parties must raise that objection before the trial court dischkarges the jury.”
USAA Texas Lloyds, 545 S.W.3d 479, 518 (discussing how Rule 295 requlires that potential
conflicts in the verdict should be resolved by the trial court giving instrucctions to the jury before
the jury is dismissed). The rule is the same whether the complaint resgarding the jury’s answers is
that they are incomplete or that they are in fatal conflict; the obsjection must be raised before the
jury is discharged in order to afford the trial court the opportunity to correct the error. As further
stated by the Supreme Court in USAA Texas Lloyds:
[Texas Rule of Civil Procedure] 295 provides the procedure for resolving
incomplete and nonresponsive jury verdiclts as well as those containing conflicting
answers. Tex. R. Civ. P. 295. Addresasing incomplete verdicts, we have long held
that a judgment will not be reversMed ""unless the party who would benefit from
answers to the issues objects to the incomplete verdict before the jury is discharged,
making it clear that he desires that the jury redeliberate on the issues or that the trial
court grant a mistrial."" Fleeet v. Fleet, 711 S.W.2d 1, 3 (Tex. 1986); see also
Continental Cas. Co. v. Street, 379 S.W.2d 648, 650 (Tex. 1964) (holding party
failed to preserve error bfecause he ""did not object to the acceptance of the jury
verdict as incomplete, and thus by timely objection afford the trial court the
opportunity, before thye jury was discharged, of correcting the error (if such it was)
of accepting the verdict with the issues unanswered""). We conclude that the same
error-preservatiCon requirement applies when a party complains of a judgment based
on conflicting jury answers.
Id. at 519. c
Had Kassab timely raised the asserted conflict prior to the jury being discharged, Rule 295
would have resolved any confusion regarding how many jurors joined in answering the Question
17. That is exactly what happened in Bryan v. Papalia, 542 S.W.3d 676, 692–93 (Tex. App.—
Houston [14th Dist.] 2017, rev. granted, judgm’t vacated w.r.m.), where the Fourteenth Court of
Appeals addressed the issue at length as follows:
When the jury originally returned its verdict, the verdict form showed that the jury
had answered “yes” as to Question 1 for Papalia and “yes” as to Question 2. The
trial court had instructed the jury that it could answer “yes” to Question 2 only if
all jurors agreed on that answer and only if all jurors had agreed to answer “yes” in
Question 1 as to Papalia. Despite this instruction, the jury’s verdict certificate
originally showed that only ten jurors had agreed to all of the jury’s answers so only
ten had agreed to answer Question 1 “yes” for Papalia and to answer Qukestion 2
“yes,” but, in light of the trial court’s instructions in Question 2, ethe jury’s
affirmative answer to Question 2 indicated that the jury had answeredl these two
questions unanimously.
After discussing this situation with counsel and polling the jur iry, the trial court
explained to the jury in open court and on the record that the vesrdict form contained
an ambiguity because the jury was instructed to answer “yeDs” to Question 2 only if
all jurors agreed to that answer, but the jurors indicated in the verdict certificate
that only ten jurors agreed to this answer. The trial cosurt then directed the jury to
return to the jury room and clarify on the verdict certificate whether the answer to
Question 2 was unanimous . . . . The jury later rerturned with an amended verdict
certificate indicating that the answers to the first two questions were unanimous
and that ten jurors agreed to the answers to Questions 3 through 9 . . .
Papalia argued in the JNOV Motion that the trial court should disregard the answer
to Question 2 because only ten jurors agrreed to that answer and signed the original
verdict certificate. Though it is trueM that only ten jurors signed the original verdict
certificate, after the jury returned to the jury room, the jury amended the verdict
certificate to show that all jurorso agreed to the answers to the first two questions. In
this context, the original verdiect certificate does not provide a basis for disregarding
the jury’s answer to Questiocn 2.
Bryan, 542 S.W.3d at 692–93.
The Court “must” reconcile the jury’s answers to support its award of exemplary damages
against Kassab. Here, the only way to reconcile the Jury Verdict is to give effect to the Jury’s
answers to Questicons 17 and 19. But even assuming arguendo that reconciliation were not possible
because of ano assertedly “fatal” conflict, Kassab waived the complaint by not raising it before the
jury was discharged. Id. As the party relying on the asserted conflict to avoid the effect of the
answers awarding exemplary damages, Kassab bore the burden to timely object and failed to do
so. Id. (citing Burbage v. Burbage, 447 S.W.3d 249, 256 (Tex. 2014)). Because Kassab did not
make any such timely objection, he waived the right to complain regarding the alleged conflict.
II. Pohl is entitled to recover his actual losses as damages under TUTSA.
Kassab objects to Pohl’s damages that are based on attorneys’ fees from underlying
proceedings based on two grounds. First, Kassab says attorneys’ fees are not recoverable under
TUTSA. See Response at 5–10. Second, Kassab argues that the attorneys’ kfees cannot be
recovered in connection with the grievance procedures. See id. at 10. Neither lof these arguments
is correct. c
A. Pohl’s TUTSA damages are recoverable. s
Despite having previously asserted the same rejected arguments5 on multiple prior
occasions, Kassab continues to claim that portions of Pohl’s edamages are not recoverable because
they are based on attorneys’ fees incurred in separate proceedings. See Response at 5–10. Kassab
was wrong before, and he remains wrong now. Int is true that attorneys’ fees typically do not
constitute actual damages when incurred in the rsame lawsuit. But attorneys’ fees from a separate
lawsuit—incurred as the result of wrongful conduct of the defendant—can constitute actual
damages in a separate, subsequent laewsuit. See, e.g., Akin Gump Strauss Hauer & Feld, LLP v.
National Development & Researchf Corp., 299 S.W.3d 106, 119-22 (Tex. 2009). Kassab conflates
these distinct scenarios in aryguing otherwise.
TUTSA authorizes the recovery of damages, including “actual loss caused by
misappropriation.” a Tex. Civ. Prac. & Rem. Code § 134A.004(a). On its face, the plain meaning
of “actual loss” fis broad and encompasses consequential losses. This broad definition of damages
is not surprising, because a “‘flexible and imaginative’ approach is applied to the calculation of
damages in misappropriation-of-trade-secrets cases.” Sw. Energy Prod. Co. v. Berry-Helfand, 491
5 See Kassab’s Traditional Motion for Summary Judgment, at 76–80 filed Aug. 29, 2022; Pohl’s Response in
Opposition to the Traditional Motions for Summary Judgment Filed by the Kassab Defendants and the Nicholson
Defendants, filed Sept. 12, 2022; see also Court Order, entered Oct. 31, 2022 (denying Kassab’s request for summary
judgment). Pohl incorporates his prior briefing on this issue by reference.
S.W.3d 699, 710 (Tex. 2016). To the extent that the Court wishes to look at persuasive authority
from other states, they too have recognized that the definition of “actual loss” is broad and
encompasses tort damages where a “plaintiff must prove that its loss was caused by the defendant’s
violation.” See World Wide Prosthetic Supply, Inc. v. Mikulsky, 640 N.W.2d 764, 7k70 (Wis. 2002);
see also Dunsmore & Associates, Ltd. v. D'Alessio, No. 409906, 2000 WL 124l995, at *10 (Conn.
Super. Ct. Jan. 6, 2000) (“Actual loss in this context means the amount ofc money that the plaintiff
lost from the defendant's misappropriation; it is measured by how smuch better off the plaintiff
would have been but for the defendant's misappropriation.”). s 
The weakness of Kassab’s position is showcased by his misleading use of caselaw. Kassab
cites to out of state caselaw asserting that “‘actual loss’ means ‘loss of profits, lost customers or
lost market share.’” See Response at 5 (citations omitted). While Pohl disputes that Florida limits
actual loss damages to these three categories, iaf it did, it demonstrates why the Court should ignore
this out-of-state authority. Kassab does not dispute that Texas allows recovery of damages outside
those three categories of damages. Seee, e.g., Response at 10–11 (not disputing that market value
is recoverable as a measure of “acftual loss”).
Kassab’s citations toy Texas caselaw fares little better. This case concerns recovery of
attorneys’ fees incurredC in separate proceedings. But Kassab cites to multiple cases dealing with
recovery of attorne a ys’ fees incurred in the same proceeding. See Response at 7.6 Some of the
6 Lacore Enters., LLC v. Angles, No. 05-21-00798-CV, 2023 WL 2607562, at *9 (Tex. App.—Dallas Mar. 23, 2023,
no pet.) (standing for the non-controversial conclusion that fees from the same lawsuit are not recoverable as damages
under the American rule); O’Neal v. Dale, No. 02-20-00173-CV, 2021 WL 210848, at *10 (Tex. App.—Fort Worth
Jan. 21, 2021, no pet.) (standing for the uncontroversial proposition that fees incurred in the present lawsuit do not
typically constitute damages); Woodhaven Partners, Ltd. v. Shamoun & Norman, L.L.P., 422 S.W.3d 821, 839 (Tex.
App.—Dallas 2014, no pet.) (“the only damages stated by appellants consist of legal fees and expenses they incurred
in defending against this lawsuit brought by appellee and in prosecuting their counterclaims.”).
10
cases did not concern recovery of attorneys’ fees at all.7 One is cited for a proposition that was
subsequently overruled.8 The Court should ignore Kassab’s misleading citations to caselaw that
do not govern the issue before the Court.
And even if the Court were not convinced that TUTSA alone authorized kthe recovery of
Pohl’s damages, Pohl’s damages are recoverable under equitable principlesl. See Dixon Fin.
Services, Ltd. v. Chang, 325 S.W.3d 668, 678 (Tex. App.—Houston [1st cDist.] 2010, pet. denied)
(“Equitable principles allow the recovery of attorney’s fees as actuasl damages when a party was
required to prosecute or defend a prior legal action as a conssequence of a wrongful act of the
defendant.”).9
Kassab acknowledges the potential applicability of this doctrine, but he claims that Pohl
cannot qualify because “Pohl is not a wholly innocent party.” See Response at 9. Pohl disputes
that the “wholly innocent party” notion is paroperly part of the tort of another doctrine.10 But
7 Tana Oil & Gas Corp. v. McCall, 104 S.W c .3d 80, 81 (Tex. 2003) (rejecting argument that parties could recover for
the value of their own time because thfe Court saw “no causal relationship between the tortious interference the
McCalls allege and the only damageOs they claim.”); Tex. Mut. Ins. Co. v. Ray Ferguson Interests, Inc., No. 01-02-
00807-CV, 2006 WL 648834, at *8 (Tex. App.—Houston [1st Dist.] Mar. 16, 2006, pet. denied) (finding that a
company’s financial loss due to employees spending time on depositions and discovery did not constitute damages in
the same lawsuit). o
8 See Response at 7 (citingC Martin-Simon v. Womack, 68 S.W.3d 793, 797 (Tex. App.—Houston [14th Dist.] 2001,
pet. denied) for the proposition that “attorney’s fees are recoverable only when an agreement between the parties so
provides.”). This is in adilrect conflict with multiple subsequent Texas Supreme Court cases. See, e.g., Akin, Gump,
Strauss, Hauer & Feldi, L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d 106, 120–21 (Tex. 2009) (finding an
award of attorneys’ fees could be proper even absent an agreement between the parties).
9 Kassab continuefs to cite inapplicable caselaw throughout. For example, he cites to Riner v. Neumann, 353 S.W.3d
312, 323 (Tex. App.—Dallas 2011, no pet.) as support for his contention that “[o]ther intermediate courts of appeals
have likewise refused to adopt the tort of another doctrine.” See Response at 8 n.5. This is false. Riner does not
mention the tort of another doctrine. See generally Riner, 353 S.W.3d 312. Instead, the court in that case declined to
adopt an exception to the American rule prohibiting recovery of attorneys’ fees in the same case absent authorization.
See id. at 322.
10 Kassab cites multiple cases demonstrating that there is no wholly innocent party element to the tort of another
theory. See Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d 106 (Tex. 2009);
Naschke v. Gulf Coast Conference, 187 S.W.3d 653 (Tex. App.—Houston [14th Dist.] 2006, pet. denied); Brannan
Paving GP, LLC v. Pavement Markings, Inc., 446 S.W.3d 14 (Tex. App.—Corpus Christi 2013, pet. denied). Kassab’s
reliance on the idea of a wholly innocent party exception is not consistent with the history of this theory. See James
Michael Stanton, Recovering Attorney’s Fees in Equity Under Texas Law: Why Some Texas Courts of Appeal Have
It Wrong, 29 T. Marshall L. Rev. 243, 278 (2004).
11
regardless, Kassab is incorrect that the Jury found that Pohl’s trade secrets damages were caused
by Pohl’s conduct. In response to Question 4—which was the proportionate responsibility
question specifically tied to the trade secrets claim—the Jury assigned Pohl 0% of the fault. See
Ex. A to the Motion at 10. Kassab ignores this question and instead contends the kJury’s response
to Question 3 shows that Pohl is not “wholly innocent.” See Response at 9. Blut this question is
not tied to the misappropriation of trade secrets. See Ex. A to the Motiocn at 9. In fact, the Jury
specifically asked if they should still answer Question 3 even if theys found that no trade secrets
existed. With the agreement of counsel for Kassab, the Court insstructed the Jury that they should
still respond to Question 3 even if they answered “No” to both parts of Question 1.
The attorneys’ fees Pohl incurred in underlying proceedings as the result of Kassab’s
wrongful conduct are recoverable as Pohl’s actual losses in this lawsuit. Kassab’s arguments
otherwise are not supported by binding caselaaw and rely in large part on the misleading use of
caselaw. The Court should reject Kassab’s arguments and enter judgment in favor of Pohl for the
full amount of actual loss damages foeund by the Jury.
B. Rule 17.09 of the fTexas Rules of Disciplinary Procedure is not applicable.
As a threshold mattyer, this lawsuit is not predicted on Kassab filing a grievance or
participating in the grCievance process. Thus, Rule 17.09 of the Texas Rules of Disciplinary
Procedure does not aapply, and the Court should reject Kassab’s argument otherwise. See Response
at 10. This issufe has been briefed extensively before, and Pohl will not repeat the same arguments
further. PUohl incorporates this prior briefing by reference. See, e.g., Pohl’s Rule 166(g) Motion,
at 12–14, filed Nov. 30, 2022 (including the briefing discussed therein). Bottom line, the Court
rejected Kassab’s position on this issue before and should reject it again now.
12
III. Pohl’s requested damages are not improperly overlapping.
Pohl’s requested damages are not overlapping. TUTSA explicitly authorizes the recovery
of both actual damages, and unjust enrichment “that is not taken into account in computing actual
loss.” Tex. Civ. Prac. & Rem. Code § 134A.004. Kassab agrees that the marketk value damages
found by the Jury are “actual loss” damages. Response at 11. He also agrees lthat the Jury found
unjust enrichment damages in the form of avoided development costs. Idc. The only question is if
those damages are overlapping. s
Here, the Jury was specifically told that it should “not award any sum of money on any
element if you have otherwise, under some other element in this question, awarded a sum of money
for the same loss.” See Ex. A to the Motion at 13. Once again, the Court must presume that the
Jury followed its instructions. Columbia Rio Grande Healthcare, L.P., 284 S.W.3d at 862. The
damages are not overlapping because the Jury could have found that the market value damages
compensated Pohl for the loss of value of his trade secrets going forward, as this value was
destroyed by their improper use and edisclosure by Kassab. The Jury also could have found that
this was separate from the loss fassociated with Kassab’s unjust enrichment based on avoided
development costs that wouyld otherwise have been incurred in the past. Because the Jury could
have viewed this unjuCst enrichment as not being accounted for in its award of “actual loss”
damages, it is not dauplicative under TUTSA.
IV. Texas cfontinues to recognize that conspirators are jointly and severally liable.
Kassab argues that the Court should ignore the Jury’s conspiracy finding because he
contends that conspiracy is “either preempted by TUTSA or subject to the [statutory] proportionate
responsibility scheme.” See Response at 11. Kassab cites no binding precedent holding that Pohl’s
conspiracy claim is improper, and the Court should reject Kassab’s arguments.
13
Based on unpublished federal cases, Kassab claims “courts have concluded that Chapter
33’s proportionate responsibility scheme applies to conspiracy claims, rather than joint and several
liability.” See id. at 12. But Kassab ignores contrary published Texas caselaw. The Dallas Court
of Appeals stated that it rejected “the premise that Chapter 33 superseded thek rule that civil
conspiracy findings result in joint and several liability.” Guillory v. Dietrichl, 598 S.W.3d 284,
296 (Tex. App.—Dallas 2020, pet. denied). Other Texas appellate courtcs have come to the same
conclusion. See, e.g., Stephens v. Three Finger Black Shale P’ship,s 580 S.W.3d 687, 719 (Tex.
App.—Eastland 2019, pet. denied) (We are of the opinion that sjoint and several liability attaches
to a civil conspiracy finding and is not affected by the proportionate responsibility statutes.”).
Kassab also has no Texas caselaw finding there can no longer be a conspiracy to
misappropriate trade secrets to support his TUTSA preemption argument. See Response at 11–13.
The absence of this caselaw is telling. Undaer the facts of this case, there is no reason to find
preemption. TUTSA provides that it “displaces conflicting tort, restitutionary, and other law of
this state providing civil remedies fore misappropriation of a trade secret.” Tex. Civ. Prac. & Rem.
Code § 134A.007(a) (emphasis afdded). Conspiracy does not provide a conflicting remedy in this
case.11 It merely provides thyat damages are joint and several.
Conspiracy, likCe proportionate responsibility, does not provide a conflicting remedy that is
preempted under TUTSA. Texas trial courts have continued to submit TUTSA and conspiracy
claims to the jufrfy.12 Pohl’s TUTSA claim provides the remedy—damages for the misappropriation
11 As an aside, Kassab’s TUTSA expert, Joseph Cleveland, appears to assume that allegations of conspiracy can exist
alongside a TUTSA claim, as he makes no mention of preemption in discussing them in conjunction with each other.
Cf. Joseph F. Cleveland, Jr., J. Heath Coffman, Kevin C. Smith, A Practitioner's Guide to the Texas Uniform Trade
Secrets Act, Tex. J. Bus. L. 1, 16 (2019) (discussing how pleading conspiracy in connection with a TUTSA claim “will
virtually guarantee that the TCPA applies”).
12 See, e.g., Whitlock v. CSI Risk Mgmt., LLC, No. 05-19-01297-CV, 2021 WL 1712215, at *13 (Tex. App.—Dallas
Apr. 30, 2021, pet. denied), reh'g denied (June 7, 2021) (holding that the conspiracy finding was supported by the
underlying tort of misappropriation of trade secrets).
14
of Pohl’s trade secrets. Applying proportionate responsibility would modify that remedy so a
defendant is responsible for a percentage of the harm. Kassab does not dispute that TUTSA
permits this modification of the remedy.13 Similarly, applying conspiracy simply makes the same
remedy apply jointly and severally among multiple defendants. That is no more okbjectionable or
inconsistent with TUTSA than the proportionate responsibility statute. The Clourt should reject
Kassab’s selective and incorrect invocation of TUTSA preemption. c
V. The Jury’s misappropriation findings are consistent with seach other.
As a threshold matter, Kassab waived his right to object on the basis of any alleged
inconsistency in the Jury Verdict by not asserting any objections prior to the dismissal of the Jury.
See Bryan v. Papalia, 542 S.W.3d 676, 692–93 (Tex. App.—Houston [14th Dist.] 2017, rev.
granted, judgm’t vacated w.r.m.); Bruce v. Oscar Renda Contracting, 657 S.W.3d 453, 463 (Tex.
App.—El Paso 2022, pet. filed).
But even looking past Kassab’s waiver of this issue, his argument—that “the jury’s finding
of no wrongdoing by Precision destreoys the misappropriation claim against Kassab”—does not
make sense on its face. See Resfponse at 13. Kassab’s argument is that “because [he] acquired
Pohl’s alleged trade secretsy from Precision, and the jury found that Precision acquired the
information lawfully, tChen Kassab could not have misappropriated trade secrets from Pohl.” Id. at
2. But this argumenat is factually incorrect and fails for multiple reasons.
First, Kafssab is wrong. The Jury had ample evidence before it to conclude that Kassab
obtained UPohl’s trade secrets from Favre—by purchasing them through the November 2016
agreement—not from Precision. And the Jury did find that Favre bore some responsibility for the
13 Kassab requested that the Court include Question 4 in the Jury Charge so that the Jury could allocate responsibility
for the TUTSA claim based on the proportionate responsibility statute.
15
misappropriation. See Jury Verdict, at 10, attached as Ex. A to the Motion. This is fatal to
Kassab’s objection.
Second, there is nothing inconsistent about the Jury finding that Precision did not
misappropriate the information and Kassab did. The Jury could have found that Prekcision obtained
the information lawfully because Precision obtained the information at thel request of, while
working for, and while being paid by Pohl. The Jury also could have bacsed its misappropriation
finding on Kassab’s post-acquisition “use” or “disclosure” of the trasde secrets, even if it did find
that Kassab obtained the trade secrets directly from Precision. s 
Because Kassab waived this argument, and because it based on a factually unsupported
version of how Kassab obtained Pohl’s trade secrets, the Court should overrule Kassab’s objection
based on a supposed inconsistency in the Jury’s misappropriation findings.
CONaCLUSION
WHEREFORE, premises considered, Pohl requests that the Court overrule Kassab’s
objections asserted in the Response aend instead enter the Final Judgment in the form attached to
the Motion as Exhibit B, and forf such other and further relief at law or in equity, to which Pohl
may be entitled. y
16
Dated: September 18, 2023 Respectfully submitted,
REYNOLDS FRIZZELL LLP
By: /s/ Jean C. Frizzell
Jean C. Frizzell
State Bar No. 07484650 k
1100 Louisiana St., Suite 3e500
Houston, Texas 77002 l
Tel. 713.485.7200
Fax 713.485.7250 c
jfrizzell@reynoldsrfrizzell.com
Attorney for PlaintifDfs Michael Pohl
and Law Office of Michael A. Pohl, PLLC
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this document was served on all counsel of
record pursuant to the Texas Rules of Civil Proceldure on this 18th day of September 2023.
M /s/ Jean C. Frizzell
 Jean C. Frizzell
17
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Suni Blue on behalf of Jean Frizzell
Bar No. 7484650
sblue@reynoldsfrizzell.com r
Envelope ID: 79681130
Filing Code Description: No Fee Documents
Filing Description: Pohl's Reply ISO Motion for Entry of Final Jtudgment
Status as of 9/19/2023 8:22 AM CST i
Case Contacts D
Name BarNumber Email e TimestampSubmitted Status
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 9/18/2023 8:21:13 PM SENT
Andrew Johnson ajohnson@Bthompsoncoe.com 9/18/2023 8:21:13 PM SENT
Benjamin Ritz britz@thnompsoncoe.com 9/18/2023 8:21:13 PM SENT
Murray JFogler mfoglielr@foglerbrar.com 9/18/2023 8:21:13 PM SENT
Murray Fogler mfogler@fbfog.com 9/18/2023 8:21:13 PM SENT
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 9/18/2023 8:21:13 PM SENT
Todd Taylor ttaylor@jandflaw.com 9/18/2023 8:21:13 PM SENT
Dale Jefferson 10607900 jefferson@mdjwlaw.com 9/18/2023 8:21:13 PM SENT
Raul Herman Suazo 2O4003021 suazo@mdjwlaw.com 9/18/2023 8:21:13 PM SENT
Scott M.Favre y scott@favrepa.com 9/18/2023 8:21:13 PM SENT
Lawyer Wade o lawyerwade@hotmail.com 9/18/2023 8:21:13 PM SENT
Chris C.Pappas cpappas@krcl.com 9/18/2023 8:21:13 PM SENT
Non-Party Witness Billy Shepherd bshepherd@spcounsel.com 9/18/2023 8:21:13 PM SENT
Non-Party Dona Pohfli DonaLyann@yahoo.com 9/18/2023 8:21:13 PM SENT
Non-Party Edgar Jaimes edgarsroom@gmail.com 9/18/2023 8:21:13 PM SENT
Kevin Dubose 6150500 kdubose@adjtlaw.com 9/18/2023 8:21:13 PM SENT
Marisa Barrera Cruz Hurd 24041157 mhurd@adjtlaw.com 9/18/2023 8:21:13 PM SENT
Andrea Mendez andrea@kassab.law 9/18/2023 8:21:13 PM SENT
Lance Kassab lance@kassab.law 9/18/2023 8:21:13 PM SENT
David Kassab david@kassab.law 9/18/2023 8:21:13 PM SENT
Nicholas Pierce nicholas@kassab.law 9/18/2023 8:21:13 PM SENT
Lance Kassab eserve@kassab.law 9/18/2023 8:21:13 PM SENT
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Suni Blue on behalf of Jean Frizzell
Bar No. 7484650
sblue@reynoldsfrizzell.com r
Envelope ID: 79681130
Filing Code Description: No Fee Documents
Filing Description: Pohl's Reply ISO Motion for Entry of Final Jtudgment
Status as of 9/19/2023 8:22 AM CST i
Case Contacts D
Kevin Graham Cain 24012371 cain@mdjwlaw.com 9/18/2023 8:21:13 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 9/18/2023 8:21:13 PM SENT
L Kassab lance@kasBsab.law 9/18/2023 8:21:13 PM SENT
Kelly Skelton receptionn@kassab.law 9/18/2023 8:21:13 PM SENT
Murray J. Fogler 7207300 mfoglielr@foglerbrar.com 9/18/2023 8:21:13 PM SENT
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Harris Wells hwells@reynoldsfrizzell.com 9/18/2023 8:21:13 PM SENT
D Kassab david@kassab.law 9/18/2023 8:21:13 PM SENT
Harris Wells O hwells@reynoldsfrizzell.com 9/18/2023 8:21:13 PM SENT"
54,2023-03-15,RPL,Kassab,Reply ISO Mtn to Rule,Kassab Defendants' Reply in Support of Their Motion to Rule on Plaintiffs' Objections to Kassab's Deposition on Written Questions of Scott Favre,"Filed March 15, 2023 in the 281st Judicial District Court before Judge Christine Weems. Kassab replies to Pohl's response (filing #53) opposing Kassab's motion to rule on objections to his DWQ of Scott Favre, arguing his questions are not leading, Pohl's own questions are leading, and Pohl's boilerplate objections are waived.",MSJ-2R,N/A,Phase 4,2023-03-15_RPL_Kassab-Reply-ISO-Mtn-to-Rule_FILED.pdf,Overrule Pohl's objections to Kassab's deposition on written questions of Scott Favre,"3/15/2023 5:09 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 73705718
By: Bonnie Lugo
Filed: 3/15/2023 5:09 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 DEFENDANTS’ REPLYIN SUPPORT OF THIER
MOTION TO RULE ON PLAINTIFFS’ OBJEtCTIONS
TO THE KASSAB DEFENDANTS’ NOTICEi TO TAKE
DEPOSITION ON WRITTEN QUESTIONS OF SCOTT FAVRE
TO THE HONORABLE JUDGE CHRISTINE WEEMeS:
Defendants, Lance Christopher Kassab aund Lance Christopher Kassab, P.C.
D/B/A The Kassab Law Firm (collectively “Knassab”) file this, their Reply In Support
of Their Rule on Plaintiffs’ Objectionsa to the Kassab Defendants Notice to Take
Deposition on Written Questions of Scott Favre and would respectfully show the
following. e
KASSAB DOES N OOT f AGREE THAT HIS QUESTIONS ARE LEADING,
BUT POHL’S QUESTIONS TO FAVRE WERE
Plaintiffs claimo “[t]here is no dispute that Kassab asked leading questions,
nor does Kassab clontend that any of Pohl’s “leading” objections were directed at
non-leading quiestions.”1 Pohl’s claim is false as none of the questions propounded
by Kassab are leading in the first place and Kassab made that abundantly clear to
Pohl’s counsel in an email, stating “[t]he objections are all meritless.”2 After stating
that all the objections were meritless, Kassab stated “[a]dditionally, your clients’
1 Exhibit F, p. 3
2 Exhibit A.
leading objections are improper” for two other reasons: leading questions are
permitted on cross examination and for hostile witnesses.3 Kassab’s motion to rule
simply focused on Plaintiffs’ absurd argument—meaning even if Kassab’s questions
were leading, which they are not, Favre should be treated as a hostile wkitness.
One need only look to the questions Pohl served Favre to Csee that Pohl has
persuaded Favre to contradict his prior testimony to help Pohl with his frivolous
retaliatory lawsuit against Kassab. i
For instance, Favre has already testified in an affidavit and in Federal Court
in Mississippi that:
• In May 2016, he purchased Precision Marketing Group, LLC
(PMG) from Scott Walker and Kirk Ladner and is the sole
member of PMG.4 l
• PMG has developed propMrietary marketing lists consisting of the
names of persons and business on the Gulf Coast, particularly in
Mississippi.5
• PMG’s marketingi lists were and are solely the work product and
property of POMfG, developed during the normal course of its
marketing business.6
• Marketinog firms such as PMG develop lists of marketing
contracts (individually and/or businesses) and sell information
from lthose lists to their clients.7
• P f iMG used its marketing lists to identify potential clients and
othe lists themselves have always remained the proprietary
business property of PMG.8
3 Id. Emphasis added.
4 Exhibit B, par. 3.
5 Id., par. 11.
6 Id., par. 12.
7 Id., par. 13.
8 Id., par. 14.
• PMG’s marketing lists contain the names of thousands of
persons who eventually became Pohl’s former clients, and/or
whom Pohl solicited for representation.9
• PMG’s marketing lists constitute one of PMG’s most valuable
assets.10
• PMG never offered to sell any contracts, did not esell any
contracts and did not sell any marketing lists.11 C
• He agreed to give PMG’s marketing lists to Tina iNicholson to do
whatever she wanted to do with them.12 t
• He allowed Tina Nicholson to use PMG’s marketing lists, but
the list was never sold to anyone.13 s
• Michael Pohl and his counsel, Billy Shepherd “could care less if
that list gets out there or not.”14
Yet, after Pohl nonsuited Favre without any settlement terms whatsoever,
Pohl, in cahoots with Favre’s counsel, Daavid Wade, sent DWQ’s to Favre designed to
contradict Favre’s prior testimony rather than having a normal deposition.15 For
instance, an example of Pohl’s DWQ’s are as follows:
• Not all lists oOf contact information for individuals or businesses
that Precision possessed were lists of marketing contacts that
Precision opwned, correct?16
• In fact, at times, Precision had possession of lists of contact
infoarmlation for individuals or businesses that were created on
hialf of Mr. Pohl, correct?17
9 Id., par. 16.
10 Id., par. 20.
11 Exhibit C, p. 91-94
12 Id., p. 92.
13 Id., p. 92-93
14 Id., p. 93
15 Exhibits D & E.
16 Exhibit E, quest. 3
17 Id., quest. 4
• What had you been told, if anything, prior to executing Exhibit 4
regarding Michael Pohl and his consent to the purchase of the
assets outlined in Exhibit 4?18
Pohl’s “leading” questions suggest an answer for Favre. They suggest that
Favre possessed marketing lists not owned by PMG. They also suggest that PMG
possessed lists of contact information created on behalf of Pohl Crather than PMG.
They even suggest that Favre had been told that he needed Michael Pohl’s consent
to purchase PMG’s assets. Favre has already testified thiat PMG is a marketing
company he purchased in May of 2016 and that PMG developed marketing lists
containing contact information of businesses and individuals. He testified that all
of the marketing contact lists and contracts were PMG’s sole property and that he
was PMG’s sole member. Favre has also lalready testified that he freely gave this
information to Tina Nicholson to do wMhatever she wanted to do with it so that Pohl
could be held accountable for his illegal acts.19
Pohl’s questions are desiigned to suggest that Favre perjured himself when he
testified earlier. Of course, Pohl now objects to almost every question posed to
Favre by Kassab in ao transparent attempt to keep all of the facts that decimate his
frivolous retaliatorly case from coming to lite. In any event, Kassab’s questions are
not vague or aimbiguous, and they are certainly not leading.
KASSAB’S QUESTIONS ARE NOT LEADING
Leading questions are questions that suggest a specific desired answer.
Implement Dealers Mut. Ins. Co. Castleberry, 368 S.W.2d 249, 253 (Tex. Civ. App.—
18 Id., quest. 15
19 Exhibit C, p. 92-93
Beaumont 1963, writ ref’d n.r.e.) (‘“[T]he essential element necessary to render the
question improper is that it suggests the specific answer desired.”’) (quoting 1
CHARLES T. MCCORMICK & ROY R. RAY, TEXAS PRACTICE, TEXAS LAW OF EVIDENCE
CIVIL AND CRIMINAL § 571, at 451 (2d ed. 1956))); MCCORMICK ON EVI k DENCE, supra
note 2, § 6, at 11 (leading question “is one that suggests to the wCitness the answer
desired by the examiner”). See generally 3 WIGMORE, supra not
e 303, §§ 769-772.
Pohl made leading objections to Kassab’s questionsi 15-19, 24-26, 29, 31-39,
45-47, 53, 56-70, 73-79, 91-96, 109-112, 114-118, 120-122 and 129-145. All of these
leading objections are frivolous. A sampling of the questions which Pohl lodged
leading objections are as follows
• 15. Is PMG a marketing colmpany?
• 56. Is it true or falseM that you are listed as the purchaser in
Exhibit 4? 
• 63. Did you purchase all of the assets listed in paragraphs
1.1.1 through 1.1i.7 of Exhibit 4?
• 73. After you purchased PMG, were you the 100% owner of
PMG? p
• 78. Did you tell Lance Kassab that you needed Michael Pohl’s
conselnt to give any documents owned by PMG to Lance Kassab?
• 7f i9. Did you tell Lance Kassab that any of the documents you
ogave to Lance Kassab belonged to Michael Pohl?
• 91. Did the amendments contained in Exhibit 6 become
effective as of noon on the 9th day of December, 2015?
• 94. Does Exhibit 6 add paragraph 1.1.7 to Exhibit 4?
• 111. Did you use PMG’s client contact information to help you
or one of your companies bring claims against BP?
• 112. Did you purchase PMG so that you could help bring
claims against Michael Pohl?
• 117. Did you tell Lance Kassab that you had/were in lawful
possession of Precision’s marketing lists? e
• 133. Did you testify under oath at the Octobter 25, 2017
hearing in front of Judge Starrett that, “At no tiime was it ever
sold to anyone.”? t
• 134. Does “it” in question 133 refer to Precision’s marketing
lists containing Precision’s client contacts information?
• 139. Did you testify under oath at the October 25, 2017
hearing in front of Judge Starrett that Michael Pohl and Billy
Shepherd told you, “We could care less if that list gets out there
or not.”?
• 140. Does the “We” in quaestions 139 refer to Michael Pohl and
Billy Shepherd?
These are not leading questions as they do not suggest a specific answer.
Even if they could be construied as doing so, they are not “impermissible” leading
questions. The mere fact that a question may be answered by a simple “yes” or “no”
does not render it ano impermissibly leading question. Wheeler v. State, 433 S.W.3d
650, 655 (Tex. Aaplp.—Houston [1st Dist.] 2014, pet. ref’d) (citing Newsome v. State,
829 S.W.2d, 2f i69 (Tex. App.—Dallas 1992, no pet.). It is only when the question
suggests which answer is desired, “yes” or “no,” that it becomes a leading
question. Newsome, 829 S.W.2d at 269. Although many of these questions can be
answered with a “yes” or “no”, they are not leading because they do not suggest
what the answer should be. The answer could be “yes” or “no.” Thus, the questions
do not suggest a “specific desired answer.”
Moreover, leading questions may also be permitted to clarify a witness’s
previous testimony or to jog the memory of a witness whose recollectkion has been
exhausted. See MCCORMICK ON EVIDENCE, supra note 2, § 6, at 1C3l see also Holbert
v. State, 457 S.W.2d 286, 289 (Tex. Crim. App. 1970). Additionally, rather than
abandoning all efforts to bring out a witnesses’ testimoniy, a judge may exercise
discretion in allowing leading questions so that the full truth may be presented. See
MCCORMICK ON EVIDENCE, supra note 2, § 6, at 13; 3 WIGMORE, supra note 303, §
770, at 161-62, § 773, at 166.
Kassab has attempted to take thel deposition of Favre for more than two
years. Favre has resisted being depMosed for various reasons, the latest being his
health. Favre admits that he is exhausted and cannot sit for a normal deposition.
Thus, Kassab has been rendeired helpless with his pursuit to depose Favre in a
normal fashion where questions can be stated over and rephrased to accommodate
an objection, even ao frivolous objection. Here, Kassab only has the awkward
approach of DWQ’ls to get usable testimony that will prove Pohl’s case is illusory at
best, brought iin bad faith, at worst. It is understandable as to why Pohl wishes to
have none of this testimony in front of a jury. However, it is highly prejudicial to
prevent Kassab from attaining this testimony and presenting it to a jury.
Kassab attempted to make answering the DWQ’s easy for Favre because of
his condition by providing documents wherein Favre was a party to refresh or jog
his memory. See MCCORMICK ON EVIDENCE, supra note 2, § 6, at 13l see also Holbert
v. State, 457 S.W.2d 286, 289 (Tex. Crim. App. 1970). Yet, the DWQ’s are phrased so
an answer is not suggested as Favre can answer “yes” or “no” to many of the
questions. Moreover, none of Kassab’s questions suggest a correckt answer by
containing a tag phrase such as “didn’t he,” “isn’t it true that,” “wCould you agree” or
“correct” as many of Pohl’s questions do. Nor do the questions instruct the witness
how to answer the questions. Thus, none of Kassab’s iquestions are leading or
improper.
POHL WAIVED HIS OBJECTIONS
Pohl made many vague and ambiguous objections to many of Kassab’s
DWQ’s. However, Pohl fails to complyl or carry his burden regarding these
objections, thus, they are waived. M
It is settled that a responding party must have “a good faith factual and
legal basis” for each objectioin “at the time the objection is made.” TEX. R. CIV.
P. 193.2(c) (emphasis added). “The party must state specifically the legal or
factual basis for the oobjection and the extent to which the party is refusing
to comply with
tlhe request.” TEX. R. CIV. P. 193.2(a) (emphasis added). Thus, a
responding pairty who objects to a request because it is vague and ambiguous,
equally available, unduly burdensome, duplicative, overly broad, or assumes facts
not in evidence – as Plaintiffs have done here – must explain “specifically” at the
time the objection is made why the discovery request is objectionable and must
state “the extent to which [they are] refusing to comply” with the request. See id.
But here, Plaintiffs merely asserted the same or similar improper, prophylactic,
boilerplate objections in an attempt to obstruct justice and hide evidence with
improper and frivolous boiler plate objections.20 By failing to comply with proper
discovery procedures, Plaintiffs have waived their objections. See TE k X. R. CIV. P.
193.2(e); In re Soto, 270 S.W.3d 732, 735 (Tex. App.—AmCarillo 2008, orig.
proceeding [mand. denied]) (party’s failure to comply with rules of civil procedure
waives objections). i
KASSAB’S QUESTIONS ARE NOT VAGUE AsND AMBIGUOUS
Moreover, a responding party has a duty to use common sense when
interpreting words and phrases used in discovery requests, giving them their
ordinary meanings, their specialized melaning used in the industry at issue, or
defining them as the opposing party Mhas defined or used them in its pleadings. See
In re Swepi L.P., 103 S.W.3d 578, 590 (Tex. App.—San Antonio, 2003, orig.
proceeding) (recognizing thati the terms used in the discovery requests, although
undefined, were “easily defined in the context of the lawsuit.”). Plaintiffs and their
counsel hold themselvoes out as accomplished seasoned lawyers; surely together they
can understand thle terms used in Kassab’s DWQ’s in the context of the lawsuit or
given their oridinary meaning, even if they are not defined. Plaintiffs should not
have to define words such as “PMG’s clients” for counsel who claims to be a “Top
100 Super Lawyer.”21
20 Exhibit D, p. 25.
21 https://www.reynoldsfrizzell.com/attorneys/jean-frizzell/
Additionally, simply because a typo exists in a question or a phrase is not
spelled exactly the same as depicted in a document that is attached to a DWQ, does
not warrant an objection. It is difficult enough to take a pertinent deposition on
DWQs without well-seasoned, Super Lawyers lodging frivolous objecktions because
they somehow cannot understand a sentence due to a typo. C It is even more
obstructive and disingenuous for Plaintiffs to lodge an objection as to vague and
ambiguous due to a passage written that is not exact fromi a document, when they
had to look at the document to be able to discern that a typo existed. This
underscores Plaintiff’s intentional obstructionism through frivolous objections. Pohl
has abused the discovery process by failing to use common sense in an effort to
obstruct Favre’s testimony. The Court sholuld not condone such obstructionism.
CONCL M USION & PRAYER
For the reasons stated herein, and in the motion to rule, Pohl’s objections
should be overruled. i
 Respectfully submitted,
o THE KASSAB LAW FIRM
i __________________________
f i DAVID ERIC KASSAB
o Texas State Bar No. 24071351
LANCE CHRISTOPHER KASSAB
Texas State Bar No. 00794070
NICHOLAS R. PIERCE
Texas State Bar No. 24098263
1214 Elgin Street
Houston, Texas 77004
Telephone: 713-522-7400
Facsimile: 713-522-7410
10
E-Service: eserve@kassab.law
ATTORNEYS FOR KASSAB DEFENDANTS
CERTIFICATE OF SERVICE
I certify that on this date, March 15, 2023, I electronically fileed this document
with the Clerk of the Court using the eFile.TXCourts.gov electrConic filing system
which will send notification of such filing to all parties or counsel of record.
_______________________
DAVID eERIC KASSAB
11
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: 73705718
Filing Code Description: No Fee Documents
Filing Description: Kassab Defendants' Reply ISO Motion to Rtule on
Objections to DWQ to Favre i
Status as of 3/16/2023 8:32 AM CST s
Case Contacts 
Name BarNumber Email g TimestampSubmitted Status
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 3/15/2023 5:09:32 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 3/15/2023 5:09:32 PM SENT
Todd Taylor ttaylor@jandflaw.com 3/15/2023 5:09:32 PM SENT
Scott M.Favre scaott@favrepa.com 3/15/2023 5:09:32 PM SENT
Lawyer Wade lawyerwade@hotmail.com 3/15/2023 5:09:32 PM SENT
Todd Taylor ttaylor@jandflaw.com 3/15/2023 5:09:32 PM SENT
Misty Davis c mdavis@reynoldsfrizzell.com 3/15/2023 5:09:32 PM SENT
Lance Kassab f eserve@kassab.law 3/15/2023 5:09:32 PM SENT
Andrea Mendez  andrea@kassab.law 3/15/2023 5:09:32 PM SENT
Chris C.Pappas cpappas@krcl.com 3/15/2023 5:09:32 PM SENT
Non-Party Witness Billy SheCpherd bshepherd@spcounsel.com 3/15/2023 5:09:32 PM SENT
Non-Party Dona Pohl a DonaLyann@yahoo.com 3/15/2023 5:09:32 PM SENT
Lance Kassab lance@kassab.law 3/15/2023 5:09:32 PM SENT
David Kassab o david@kassab.law 3/15/2023 5:09:32 PM SENT
Nicholas PiercUe nicholas@kassab.law 3/15/2023 5:09:32 PM SENT
Murray JFogler mfogler@foglerbrar.com 3/15/2023 5:09:32 PM SENT
Murray Fogler mfogler@fbfog.com 3/15/2023 5:09:32 PM SENT
Andrew Johnson ajohnson@thompsoncoe.com 3/15/2023 5:09:32 PM SENT
Benjamin Ritz britz@thompsoncoe.com 3/15/2023 5:09:32 PM SENT
Dale Jefferson 10607900 jefferson@mdjwlaw.com 3/15/2023 5:09:32 PM SENT
Raul Herman Suazo 24003021 suazo@mdjwlaw.com 3/15/2023 5:09:32 PM SENT
Kevin Graham Cain 24012371 cain@mdjwlaw.com 3/15/2023 5:09:32 PM SENT
Automated Certificate of eService
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David Kassab
Bar No. 24071351
david@kassab.law r
Envelope ID: 73705718
Filing Code Description: No Fee Documents
Filing Description: Kassab Defendants' Reply ISO Motion to Rtule on
Objections to DWQ to Favre i
Status as of 3/16/2023 8:32 AM CST s
Case Contacts 
D Kassab david@kassab.lagw 3/15/2023 5:09:32 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 3/15/2023 5:09:32 PM SENT
L Kassab lance@kassab.law 3/15/2023 5:09:32 PM SENT
Kelly Skelton reception@kassab.law 3/15/2023 5:09:32 PM SENT
Murray J. Fogler 7207300 mfaogler@foglerbrar.com 3/15/2023 5:09:32 PM SENT
Non-Party Edgar Jaimes edgarsroom@gmail.com 3/15/2023 5:09:32 PM SENT"
24,2022-02-04,RPL,Pohl,Pohl’s reply ISO MSJ on counterclaims,Plaintiffs' Reply in Support of Their Motion for Summary Judgment on Defendants' Counterclaims for Civil Barratry,"Pohl's reply brief supporting his MSJ on Kassab's barratry counterclaims, filed February 4, 2022. This is the final brief in the CC-1 motion chain before the court's ruling (which ultimately granted Pohl's motion). Attorney: Jean C. Frizzell of Reynolds Frizzell LLP.",CC-1,N/A,Phase 2,2022-02-04_RPL_Pohl-Reply-ISO-MSJ-on-CC_FILED.pdf,Grant summary judgment dismissing Kassab's counterclaims for civil barratry,"2/4/2022 3:45 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 61466983
By: Deandra Mosley
Filed: 2/4/2022 3:45 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL AND LAW OFFICE OF § IN THE DISTRICT COURT OF
MICHAEL A. POHL, PLLC, §
Plaintiffs, §
V. § k
§ e
SCOTT FAVRE and SCOTT M. FAVRE PA, § C l
LLC; PRECISION MARKETING GROUP, § HARRIS COUNTY, TEXAS
LLC; LANCE CHRISTOPHER KASSAB and § c
LANCE CHRISTOPHER KASSAB, P.C. d/b/a § r
THE KASSAB LAW FIRM; TINA § s
NICHOLSON and BAKER NICHOLSON, §
LLP d/b/a BAKER NICHOLSON LAW § s
FIRM; and DOUGLAS MONTAGUE III and § s
MONTAGUE PITTMAN & VARNADO, P.A., §
Defendants. § r189TH JUDICIAL DISTRICT
PLAINTIFFS’ REPLY IN SUPPORT OF THEIR MOTION FOR SUMMARY
JUDGMENT ON DEFENDANTS’ COUNTERCLAIMS
Plaintiffs Michael Pohl and Law Officae of Michael A. Pohl (collectively “Pohl”) file this
Reply in Support of Their Motion for Summary Judgment on Defendants’ Counterclaims for Civil
Barratry. e
In his Response to Plfaintiffs’ Motion (the “Response”) Kassab admits that the
Assignments1 underlying hisy counterclaims were shams that altered nothing about the ownership
of the claims and wereC made explicitly for the purpose of circumventing the statute of limitations
and fomenting otherwise barred litigation. See Response, at 6 (“Seeing Pohl’s retaliatory suit as a
means to potenftfially revive the barratry claims dismissed on limitations in Brumfield and Gandy,
Kassab aUnd his clients executed 242 Limited Assignments.”); see also Declaration of Lance
Kassab ¶ 12, Ex. 5 to the Response (after purported “assignment,” clients retained 60% interest in
claims and Kassab retained 40% contingent fee interest). These admissions demonstrate the
1 Terms defined in Plaintiffs’ Motion carry the same meaning in this Reply.
invalidity of the Assignments and therefore the Counterclaims. In addition to effectively admitting
that the Assignments are shams, Kassab’s Response fails to rebut any of the other bases on which
Pohl moved for summary judgment.
The Court can resolve Pohl’s Motion based on a straightforward applicationk of res judicata,
as Kassab freely admits that he is asserting the very same claims that are subjectl to final judgments.
Furthermore, even if they were not barred by res judicata, Kassab’s claims cdo not meet the statutory
elements for revival and are themselves barred by limitations. Fsinally, the invalidity of the
Assignments only further supports the conclusion that summarsy judgment on Kassab’s claims is
proper.
I. Res judicata applies and is dispositive of Kassab’s counterclaims.
Kassab has confirmed that his counterclaims are the same claims that were resolved by
prior final judgments on the merits. See Response, at 6 (confirming that Assignments were for the
claims “dismissed on limitations in Brumfield and Gandy”). Res judicata applies to such claims,
and the prior judgments dismissing thee Barratry Claims on the basis of limitations preclude Kassab
from re-litigating the same claimsf in this lawsuit.
Kassab’s sole argumyent against res judicata is a purported “change in material facts” that
prevents the applicatioCn of res judicata. See id. at 8. But Kassab supplies no legal support for his
argument that a chaange in facts, like an assignment, has any impact on res judicata. Despite the
dispositive natufre of the res judicata argument, Kassab devotes just over a single page of his 27-
page ResUponse and cites to two cases to address this issue. See id. at 8–9. The two cases deal with
application of res judicata to a claim that did not exist at the time of a prior judgment. Neither
case supports the conclusion that res judicata does not apply to stale claims that were previously
dismissed, merely because a party attempted to circumvent the statute of limitations by assigning
their claim to be asserted as a revived counterclaim.
In Marino v. State Farm Fire & Cas. Ins. Co., the first case Kassab relies on, the Court
“addressed the issue of whether res judicata can bar a subsequent suit on a cause of action that was
not recognized until after judgment was rendered in the first suit.” 787 S.W.2d 948, 949 (Tex.
1990) (emphasis added). In the first lawsuit between Marino and State Farm, Markino prevailed at
trial on a claim for breach of contract based on State Farm’s denial of an insulrance claim. Id. at
948–49. After the judgment, the Texas Supreme Court “recognized a tocrt cause of action for an
insurer’s breach of the duty of good faith and fair dealing,” commonsly called a “bad faith” claim.
Id. at 949. The Court found that Marino’s “bad faith” claim, assserted in the second lawsuit, was
not barred by res judicata, because it “was based on rights subsequently acquired, [and] it was not
part of his former cause of action.” Id. at 950.
Kassab’s other case is City of Lubbock v. Stubbs, 327 S.W.2d 411 (Tex. 1959), which
addresses the application of res judicata to a ciaty’s attempt to enjoin Stubbs from violating a zoning
ordinance. Stubbs, 327 S.W.2d at 414. In a suit involving a prior ordinance, Stubbs prevailed,
permitting him to continue using his eland for specific business purposes. The city then passed an
ordinance that zoned his land asf residential. Id. at 413. In the second suit, the city sought to
enforce the new zoning ordyinance against Stubbs. Stubbs argued that, like in the first suit, he
should be able to contiCnue using his land for purposes he was engaged in prior to the passing of
the ordinance. Id. at 414. However, the Court found that res judicata did not apply, in part based
on the fact thatf Sftubbs’s “present use” of his land differed in each of the suits and that the city was
enforcingU a new ordinance. Id.
The application of res judicata to Kassab’s counterclaims is not analogous to the situations
presented in Marino and Stubbs. Kassab’s Barratry Claims not only existed at the time of the prior
final judgments on the merits, the prior judgments apply to the same claims Kassab attempts to
assert here. See Response, at 8 (acknowledging that “the prior judgments in Brumfield and Gandy
concluded” that “the barratry claims were barred by the statute of limitations”). Courts citing to
the Marino and Stubbs cases have properly focused on the existence of a claim and whether it was
a “a claim that was raised or that could have been raised in the first action.” Hernakndez v. Del Ray
Chem. Intern., Inc., 56 S.W.3d 112, 116 (Tex. App.—Houston [14th Dist.] 200l1, no pet.).
Kassab is incorrect that his strategic use of assignments combinecd with section 16.069 of
the Civil Practice and Remedies Code allow him to not only avoid tshe proper application of the
statute of limitations, but also to avoid the effects of res judicatas. Because the Assignors’ Barratry
Claims are the subjects of final judgments, and Kassab is in privity with the Assignors, res judicata
applies and prevents Kassab from recovering on his counterclaims. The Court should grant Pohl’s
Motion and dismiss Kassab’s Barratry Claims.
II. Kassab’s counterclaims are not reavived and are thus barred by limitations.
Kassab’s counterclaims for civil barratry are barred by limitations because they accrued
more than four years before Kassabe filed the counterclaims. Kassab does not dispute that the
underlying Barratry Claims are bafrred by limitations or that his claims are governed by a four-year
statute of limitations. See geynerally Response. Instead, Kassab argues that section 16.069 of the
Civil Practice and RemCedies Code revives claims purportedly assigned to him. Kassab’s three
arguments in responase to Pohl’s Motion do not demonstrate that section 16.069 applies.
A. Pfohl’s claims against the Defendants arise of out of a different transaction or
occurrence than Kassab’s assigned Barratry Claims.
Kassab selectively quotes the standard for determining if section 16.069 applies and
misconstrues what facts are relevant to the claims and counterclaims in this lawsuit. See Response,
at 10–14. One reason that section 16.069 does not apply is because Kassab cannot show that “[t]he
essential facts on which the counterclaim is based [are] significantly and logically relevant to both
claims.” Smith v. Ferguson, 160 S.W.3d 115, 120 (Tex. App.—Dallas 2005, pet. denied).
As Pohl stated in his Motion, and as Kassab acknowledged in his Response, courts use a
“logical relationship test,” when determining whether counterclaims arise oukt of the same
transaction or occurrence. See Motion, at 9; see also Response at 10. Howevler, Kassab fails to
acknowledge that his own cases state that this test “is met when the same cfacts, which may or may
not be disputed, are significant and logically relevant to both claimss.” Commint Tech. Services,
Inc. v. Quickel, 314 S.W.3d 646, 653 (Tex. App.—Houston [14sth Dist.] 2010, no pet.) (emphasis
added); see generally Response (not using the term “significant” to discuss application of section
16.069).
Pohl asserts claims for theft of trade secrets and conversion relating to the Defendants’
theft and misuse of Pohl’s stolen client files anad information. Kassab argues that his counterclaims
arise out of the same transaction or occurrence as Pohl’s claims because: “The facts relevant to
determining whether Precision gaineed access to Pohl’s confidential information while ‘liaising’
with prospective clients are alsof relevant to determining whether the ‘liaising’ conducted by
Precision – at Pohl’s directioyn – amounted to unlawful barratry.” See Response, at 11. Without
ever explaining why, KCassab asserts that Pohl’s claims “depend on the manner in which Precision
worked for Pohl to procure client contact information.” See id. at 13. Kassab is wrong.
“[D]etefrfmining whether Precision gained access to Pohl’s confidential information while
‘liaising’U with prospective clients” is in no way “significant and logically relevant” to Pohl’s
claims for conversion and theft of trade secrets against Kassab. Id. at 11; see also Pohl’s First
Amended Petition, at 5–12 (describing the factual bases for Pohl’s claims). It does not matter at
all to Pohl’s claims whether the information Precision stole and sold was acquired during proper
“liaising” or if it was acquired doing alleged barratrous activity. What matters are the facts
underlying Kassab’s 2016 purchase and subsequent use of Pohl’s stolen property. Because
Kassab’s counterclaims do not arise out of the same transaction or occurrence as Pohl’s claims,
section 16.069 does not apply. k
B. Kassab did not provide fair notice of valid counterclaimCs lwithin the 30-day
period required under section 16.069. 
It is undisputed that a counterclaim that does not provide fair nortiice of the facts giving rise
to the claims does not satisfy the requirement to assert a counterDclaim within the 30-day period
prescribed by section 16.069. See Response, at 14–18 (not dissputing this rule). Instead, Kassab
simply asserts that he met this requirement because he argures that his “pleading met that fair notice
standard.” See id. at 18. His pleadings demonstrate otherwise.
Kassab admits that “fair notice” requires thlat a party be able to “ascertain from the pleading
the nature, basic issues, and the type of evidMence that might be relevant to the controversy.” Id. at
17 (quoting Low v. Henry, 221 S.W.3d 6o09, 612 (Tex. 2007)). However, Kassab does not explain
how Pohl could understand the natucre, issues, and types of evidence relevant to the barratry claims
when Pohl did not know who he was alleged to have committed barratry against. Instead, Kassab
argues that even less fair notice was provided by a party in a case cited by Pohl—seeming to
suggest that he merely needed to distinguish the facts of that case from the facts in this lawsuit.
See id. at 14–17. c However, the distinguishing facts Kassab points out do nothing to change that
he was obligated to provide fair notice to Pohl of the bases and nature of his counterclaims.
The Court can decide this issue with ease. The question is whether Pohl had “fair notice”
of Kassab’s barratry counterclaims when Kassab did not provide the means for Pohl to determine
who he was alleged to have committed barratry against. Kassab argues that there is fair notice
because of the seven pages of “facts” included in Kassab’s Third Amended Counterclaim. See id.
at 16. Even if those “facts” were part of the counterclaims,2 they did not inform Pohl who he
allegedly improperly solicited and committed barratry against. Pohl could not understand the
nature, issues, and types of evidence relevant to the counterclaims without knowing who he was
alleged to have committed barratry against. k
Kassab’s allegation of unspecified “assigned barratry claims”—withoult any indication of
who assigned the claims—does not provide “fair notice” of the claims uncder Texas law.3 Kassab
did not assert his counterclaims within the required 30-day periods to revive claims barred by
limitations, and this Court should dismiss Kassab’s counterclaimss.
C. Kassab has no response to the reasoning demonstrating that the Barratry
Claims assigned to Kassab after this lawrsuit was filed cannot be revived.
In his Motion, Pohl argued that section 16.069 cannot revive claims assigned after a lawsuit
to circumvent the otherwise applicable statute lof limitations. He noted that courts apply the
provisions of the Code Construction Act whMen construing section 16.069, and thus, its purpose and
the consequences of a particular interpreotation are relevant to determining if section 16.069 should
apply. See Motion, at 13 (citations comitted).
Instead of challenging the legal principles that led to the reasoning of the cases cited by
Pohl, Kassab argues simply that the cases are factually distinguishable and sought different forms
of relief. See Response, at 18–19. Kassab does not explain why the Court, in considering the
object and purposce of section 16.069, should construe the statute to apply in circumstances when
a defendant engages in gamesmanship to attempt “to circumvent limitations by relying on section
2 That factual discussion was not incorporated into Kassab’s counterclaim and appeared to be an explanation for why
Kassab believes the lawsuit was retaliatory, not the basis of the counterclaims. See Kassab’s Counterclaim, at 11–12.
3 Kassab’s suggestion that Pohl somehow should not be able to assert this argument because “Pohl could have obtained
a hearing on his special exceptions if he actually believed that Kassab’s pleadings were deficient,” misses the point.
See Response, at 18. The issue for Kassab is whether he gave fair notice of his counterclaim within the required 30-
day period. It does not matter if subsequent to that, Pohl fails to secure a ruling on potential special exceptions.
16.069.” See Ball v. SBC Communications, Inc., 04-02-00702-CV, 2003 WL 21467219, at *5
(Tex. App.—San Antonio June 25, 2003, pet. denied).
The Court should not allow Kassab to use section 16.069 to revive claims that he did not
even own until after this lawsuit was filed. The object and purpose of section 1k6.069 would be
frustrated by permitting its application to these claims. l
III. Kassab’s arguments regarding the validity of the Assignmcents of the Barratry
Claims fail and do not address the substance of Pohl’s argruments.
In his Motion, Pohl argued that the Assignments of the BaDrratry Claims are void because
they (1) are impermissible assignments of statutory punitive cslaims, and (2) violate public policy
by acting as an improperly obtained, transparent device to ravoid limitations and increase litigation.
See Motion, at 14. Kassab’s lead argument in response is that the Assignments are valid because
Pohl is estopped from arguing otherwise. Kassabl’s misleading attempt to invoke estoppel and his
responses to Pohl’s actual arguments do noMt work.
A. Kassab’s invocation of ojudicial estoppel is misleading, and it does not apply.
Kassab’s opening and primcary argument regarding the validity of the Assignments is a
legally deceptive argument that Pohl should be estopped from arguing they are invalid because he
purportedly made an inconpsistent argument in other cases. See Response, at 20 (stating that Pohl
“has simultaneously argued to the Texas Supreme Court that the Assignments are valid”). It is
unclear why Kasscab would seek to draw this Court’s attention to the fact that while asserting his
“assigned” Boarratry Claims in this Court, he simultaneously was representing clients asserting the
exact same claims in two appellate proceedings without having notified those courts of the
purported assignments.
Contrary to Kassab’s arguments, Pohl did not take an inconsistent position in the Texas
Supreme Court. Instead, Pohl’s briefing referred to “purported” assignments and notified the
Supreme Court that Kassab himself had argued that the Assignments are valid. See Response,
Exs. 5A, 5B. Furthermore, even had Pohl taken inconsistent position, he did not prevail on this
position, making estoppel inapplicable.4
Kassab was aware that Pohl did not prevail on this alternative argument, kand yet he still
makes his estoppel argument, citing to a single case. See id. at 21 (citing lFerguson v. Bldg.
Materials Corp. of Am., 295 S.W.3d 642, 643 (Tex. 2009)). However, Fecrguson makes clear that
estoppel is not applicable here, because it “precludes a party whso successfully maintains a
position in one proceeding from afterwards adopting a clearlys inconsistent position in another
proceeding to obtain an unfair advantage.” Ferguson, 295 S.W.3d at 643 (emphasis added).
Kassab somehow failed to include the full standard for judicial estoppel, despite it being contained
on the same page that he cited. See Response, at 21 (citing to Ferguson, 295 S.W.3d at 643).
B. Kassab has no real responase to the fact that the Assignments contain
impermissible assignmentsM of statutory punitive claims.
In his Response, Kassab does noot address the fact that punitive statutory claims are often
not assignable, nor does he address cthe four factors the Texas Supreme Court uses when analyzing
the assignability of a statutory cause of action. See Response, at 21–24. Instead, Kassab discusses
the assignability of legal malpractice claims—which Pohl did not bring up and which has no
relevance to Pohl’s actual arguments—and sets up a straw man of Pohl’s arguments by contending
that Pohl relies onc an exception to assignability that is limited to DTPA claims. See id. at 21–22.
Kassab contends that Pohl’s arguments regarding the invalidity of an assignment of a civil
barratry claim fail because of “the simple fact that a civil barratry claim is not a DTPA claim.”
4 See January 28, 2022 Notices filed Brumfield v. Williamson, No. 21-0563, in The Supreme Court of Texas, and
Gandy v. Williamson, No. 21-0564, in The Supreme Court of Texas (denying petitions for review and dismissing
Pohl’s Motions to Dismiss “as moot.”). These records are available at https://search.txcourts.gov/Case.aspx?cn=21-
0563&coa=cossup and https://search.txcourts.gov/Case.aspx?cn=21-0564&coa=cossup. This Court may take judicial
notice of these facts. See TEX. R. EVID. 201(b).
See id. at 22. This is a non sequitur. While the seminal case on the assignability of statutory claims
dealt with assignment of a DTPA claim, its reasoning was explicitly not limited to such claims.
See PPG Indus., Inc. v. JMB/Houston Centers Partners Ltd. P’ship, 146 S.W.3d 79, 87 (Tex. 2004)
(noting that “the assignability of most claims does not mean all are assignable; exckeptions may be
required due to equity and public policy” (footnotes omitted)). l
Kassab all but ignores the four factors considered by the Court inc PPG. See Response, at
21–24. Kassab does not address the fact that the legislature knew hsow to make barratry claims
assignable, yet the statute is silent. See TEX. GOV’T CODE § 82.s0651. That the legislature did not
explicitly provide for assignment “can be significant” and provides the starting point for a court’s
analysis. PPG, 146 S.W.3d at 84. Nor does Kassab discuss the purpose of the civil barratry statute,
related common-law principles prohibiting assignments of punitive statutory claims, or whether
the Assignments may increase litigation. See aPPG, 146 S.W.3d at 83–92; Response, at 23–24.
Kassab argues that some of the risks of distortion discussed in PPG are not present here.
See Response, at 23–24. However, thee risks of distortion discussed in PPG were not alleged to be
present in that case either. See PfPG, 146 S.W.3d at 91–92. The Court instead was concerned
about the rule as applied to ya class of claims. Id. The risks of distortion are present for barratry
claims as a class. AndC it is clear that assignments made to avoid limitations, “increase” litigation.
Because civil barratry claims are personal and punitive in design, and for the other reasons
discussed in thfef Motion, the claims are not assignable. Kassab’s attempt to factually distinguish
PPG hasU no effect on the rule and reasoning it laid out. This Court should find that the
Assignments of the Barratry Claims to Kassab are void and without effect.
C. Kassab’s own admissions show that the Assignments violate public policy.
Kassab admits that the Assignments were a sham device used as part of an attempt to avoid
the application of the statute of limitations. See Response, at 6 (“Seeing Pohl’s retaliatory suit as
10
a means to potentially revive the barratry claims dismissed on limitations in Brumfield and Gandy,
Kassab and his clients executed 242 Limited Assignments”). Kassab also describes in his
Response how the Assignments have no practical effect and were simply “effectuated in an attempt
to salvage the clients’ barratry claims,” and Kassab would return any recovery ikn excess of his
contingency fee to the assignors. See id. at 23. These admissions demlonstrate that the
Assignments violate public policy, and the Court should decline to enforcce them.
As discussed more thoroughly in the Motion, “the assignabislity of most claims does not
mean all are assignable; exceptions may be required due to equsity and public policy.” PPG, 146
S.W.3d at 87 (emphasis in original) (footnotes omitted). Courts may look to equitable
considerations to invalidate assignments when the assignments “tend to increase or prolong
litigation unnecessarily” or when an assignment is used as a “transparent device” to “increase and
distort litigation.” See Sw. Bell Tel. Co. v. Mkatg. on Hold Inc., 308 S.W.3d 909, 916 (Tex. 2010);
LAKXN Income, Inc. v. TLC Hosp., LLC, 02-20-00415-CV, 2021 WL 3085755, at *5 (Tex. App.—
Fort Worth July 22, 2021, no pet.) (cietation omitted).
The Assignments Kassabf received undisputedly “tend to increase or prolong litigation
unnecessarily” and are admiytted “transparent device[s]” to “increase and distort litigation.” Sw.
Bell Tel. Co., 308 S.WC.3d at 916; LAKXN, 2021 WL 3085755, at *5. Kassab’s sole response is
simply that “Pohl has the filthiest of hands” and that Pohl should not benefit from any equitable
consideration. f fSee Response, at 26. However, Kassab’s overheated statements and citation to a
court’s dUiscussion of “the past litigation that led to this suit as it is relevant to the issues being
decided now,” are not competent evidence of unclean hands. See Kassab v. Pohl, 612 S.W.3d 571,
574 (Tex. App.—Houston [1st Dist.] 2020, pet. denied); Response, at 26 (citing Kassab v. Pohl).
11
Kassab ignores the fact that the Court must consider both public policy and equitable
considerations, and he does not explain why Pohl’s analysis of those considerations is incorrect.
Instead Kassab focuses on a side issue, arguing that the Assignments cannot be invalidated even
if he did violate Disciplinary Rule 1.08(h). See Response, at 24–26. While his akttempt to argue
that the Assignments do not violate Rule 1.08(h) makes little sense, it is worthl noting that Kassab
quotes the relevant caselaw in a misleading fashion. Kassab suggests that “ceven if the Assignments
are unethical and in violation of Rule 1.08 . . . the Court cannot void tshem.” See Response, at 25–
26 (citing M.A. Mills, P.C. v. Kotts, No. 14-20-00395-CV, 2022s WL 176125, at *8 (Tex. App.—
Houston [14th Dist.] Jan. 20, 2022, no pet. h.)). However, Knotts dealt with a different provision
of the Rules, and the court explicitly stated: “We previously opined that courts ‘may deem these
rules to be an expression of public policy, so that a contract violating them is unenforceable
as against public policy,’ but we also said thaat courts ‘are not required to do so.’” Kotts, 2022
WL 176125, at *6 (citations omitted) (emphasis added).
Ultimately, whether Kassab oebtained these assignments in violation of the ethical rules is
just an additional factor for the Cfourt to consider along with the other public policy and equitable
considerations. Kassab is attyempting to use the Assignments to avoid the application of the statute
of limitations in a manCner that increases and promotes litigation, rather than curbing it. The sole
purpose of the Assignments was to circumvent the statute of limitations and promote further
litigation. Assfigfnments that injure the public good such as these should be rejected.
U PRAYER
For the foregoing reasons, and the reasons stated in Pohl’s Motion, Pohl requests that the
Court grant summary judgment dismissing Kassab’s counterclaims.
12
Dated: February 4, 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 4th day of February, 2022.
M /s/ Jean C. Frizzell
 Jean C. Frizzell
13
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.
Melissa Hyland on behalf of Jean Frizzell
Bar No. 7484650
mhyland@reynoldsfrizzell.com r
Envelope ID: 61466983
Status as of 2/4/2022 3:50 PM CST
Case Contacts r i
Name BarNumber Email TimestampSubmitted Status
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com s2/4/2022 3:45:54 PM SENT
Todd Taylor ttaylor@jandflaw.com g2/4/2022 3:45:54 PM SENT
Scott M.Favre scott@favrepa.com u 2/4/2022 3:45:54 PM SENT
Lance Kassab eserve@kassab.law  2/4/2022 3:45:54 PM SENT
Murray JFogler mfogler@foglerbrar.cyom 2/4/2022 3:45:54 PM SENT
Murray Fogler mfogler@fbfog.caom 2/4/2022 3:45:54 PM SENT
Larry Newsom lnewsom@krcl.com 2/4/2022 3:45:54 PM SENT
Jason M.Ciofalo jason@cioofalolaw.com 2/4/2022 3:45:54 PM SENT
Misty Davis mdavis@reynoldsfrizzell.com 2/4/2022 3:45:54 PM SENT
Andrew J. Sarne asafrne@krcl.com 2/4/2022 3:45:54 PM SENT
Kathryn Laflin KLaflin@KRCL.com 2/4/2022 3:45:54 PM SENT
Dale Jefferson 10607900pjefferson@mdjwlaw.com 2/4/2022 3:45:54 PM SENT
Raul Herman Suazo 24003C021 suazo@mdjwlaw.com 2/4/2022 3:45:54 PM SENT
Kevin Graham Cain 24a01l2371 cain@mdjwlaw.com 2/4/2022 3:45:54 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 2/4/2022 3:45:54 PM SENT
Solace Southwicko ssouthwick@reynoldsfrizzell.com 2/4/2022 3:45:54 PM SENT
E. MarieJamisUon jamison@wrightclosebarger.com 2/4/2022 3:45:54 PM SENT
Jessica Z.Barger barger@wrightclosebarger.com 2/4/2022 3:45:54 PM SENT
Chris C.Pappas cpappas@krcl.com 2/4/2022 3:45:54 PM SENT
Todd Taylor ttaylor@jandflaw.com 2/4/2022 3:45:54 PM SENT
David R.Wade lawyerwade@hotmail.com 2/4/2022 3:45:54 PM SENT
Felicia Grace fgrace@krcl.com 2/4/2022 3:45:54 PM SENT"
18,2021-08-02,RPL,Kassab,Kassab’s reply ISO Traditional MSJ,"Kassab's Objections to Pohl's Response and Reply in Support of Traditional Motion for Summary Judgment, with extensive evidentiary objections and rebuttal arguments on all three grounds","Reply brief filed one week after Pohl's response (July 26, 2021) to Kassab's Traditional MSJ. Filed August 1-2, 2021. Contains two major sections: (1) detailed paragraph-by-paragraph evidentiary objections to Pohl's Declaration (Exhibit A) seeking to strike key paragraphs and exhibits as conclusory, hearsay, or lacking foundation; (2) substantive reply arguments on limitations, res judicata, and attorney immunity. Kassab represents himself pro se with David Eric Kassab.",MSJ-1,N/A,Phase 2,2021-08-02_RPL_Kassab-Reply-ISO-Traditional-MSJ_FILED.pdf,"Sustain all evidentiary objections; strike Paragraphs 5, 6, 7, 8, 9, and 10 of Pohl's Declaration and Exhibits 1-2; grant Traditional Motion for Summary Judgment ordering that Plaintiffs take nothing","8/1/2021 7:39 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 55892722
By: Deandra Mosley
Filed: 8/2/2021 12:00 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
THE KASSAB DEFENDANTS’ OBJECTIONS TO PLAINTIFCFS’ RESPONSE
AND REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
TO THE HONORABLE JUDGE SCOT “DOLLI” DOLLINGEtR:
Lance Christopher Kassab and Lance Christopher Kassab, P.C. d/b/a/ The
Kassab Law Firm file this, their Objections to Plaeintiffs’ Response and Reply in
Support of Motion for Summary Judgment uand would respectfully show the
following.
BJECTIONS
Defendants Lance Christopher Kassab and Lance Christopher Kassab, P.C.
d/b/a/ The Kassab Law Firm i(collectively, “Kassab”) object to Plaintiffs’ Exhibit A,
the sworn declaration of Michael A. Pohl, because statements contained in this
declaration are concluosory, contain hearsay and contain no foundation or predicate
to support personall knowledge, and thus, constitute no evidence at all.
Conclusiory 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);
Stephens v. Precision Drilling Oilfield Servs. Corp., No. 01-11-00326-CV, 2013 Tex.
App. LEXIS 5700, 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. – Houston [14th Dist.] 2000, pet. denied). Moreover, an affidavit is conclusory
when it expresses “a factual inference without stating the underlying facts on which
the inference is based.” E.I. du Pont de Nemours & Co. v. Shell Oil Cok., 259 S.W.3d
800, 809 (Tex. App.—Houston [1st Dist.] 2007, pet. denied). ThusC, bare conclusions
are not evidence and are not probative of any facts. See Bavishi v. Sterling Air
Conditioning, Inc., No. 01-10-00610-CV, 2011 Tex. App.i LEXIS 6271, at *24-26
(Tex. App.—Houston [1st Dist.] 2011, no pet.) (mem. op.). Pohl’s declaration consists
of nothing but conclusory statements.
Kassab objects to Paragraph 4, which states: “Pohl engaged Precision
Marketing Group, LLC (“Precision”) to prlovide public relations services, to gather
and preserve evidence, and to screenM and liaise with Pohl’s clients and prospective
clients.” This statement is conclusory because Pohl fails to provide any foundation
or predicate for the statementi such as when, where, and how he engaged Precision.
Pohl does not state what Precision is, who owns Precision, who he met with at
Precision, when he ostruck an agreement with Precision, when Precision was
supposed to condulct its work or what Precision was to receive. Pohl does not state
what any of thie details of the agreement with Precision are, when Precision is to act
and for how long the agreement is to take place or where it is to take place. And,
although Pohl states why he allegedly “engaged Precision,” he does not provide any
detail or specificity regarding the conclusory remark in paragraph 4. “[G]ather and
preserve” what evidence? “[S]creen and liaise with Pohl’s clients and prospective
clients” how? What type of screening? What type of liaising? What location? For
what purpose? There is simply no predicate or foundation to support this conclusory
statement, and thus, Pohl’s paragraph 4 contains nothing but bare conclusions
which constitutes no evidence and is not probative of any facts. See Bkavishi, 2011
Tex. App. LEXIS 6271, at *24-26. C
Kassab objects to Paragraph 5, which states: “I was and am the owner of the
confidential, privileged and trade secret information thait Kassab obtained from
Scott Favre, Precision Marketing Group, LLC (“Precision”), and Tina Nicholson on
which this suit is based.” This statement is conclusory because Pohl fails to describe
what the purported confidential information or trade secrets are or explain how he
is the rightful owner of this information asl opposed to Favre or Precision, who have
claimed to be the owner of the aMlleged marketing lists provided to Kassab.
Additionally, Pohl fails to state when or why he obtained this information or what
makes it confidential or priivileged. Moreover, Pohl fails to explain how the
information even constitutes a trade secret. See Game Sys. v. Forbes Hutton
Leasing, Inc., No. 02-o09-00051-CV, 2011 Tex. App. LEXIS 4098, at *76 (Tex. App. –
Fort Worth, Mayl 26, 2011, no pet.) (mem. op.) (statement that the software
“constitutes ai trade secret” was conclusory and not proper evidence). Pohl’s
paragraph 5 contains nothing but bare conclusions which constitutes no evidence
and is not probative of any facts. See Bavishi, 2011 Tex. App. LEXIS 6271, at *24-
26.
Kassab objects to Paragraph 6 because it is conclusory and contains hearsay.
First, Kassab objects to the following statement as conclusory: “Specifically,
prior to that sale, Precision undertook to convert, misappropriate for itself, and/or
market to third parties claimant files and other information and materials that
belong to me, and to which they had access while working for me.”k Pohl fails to
explain what “sale” he is referring to. Who purchased what from wChom? When was
there a sale? Where did a sale take place? Pohl even fails to provide personal
knowledge regard a sale. i
Pohl also fails to provide any factual support about how Precision allegedly
converted his purported “information or materials.” Pohl also fails to provide and
foundation or predicate for the statement. Pohl fails to state how Precision
undertook to convert or misappropriate forl itself anything. Pohl fails to state when
items were converted or misapproprMiated, why Precision undertook to convert or
misappropriate something, where it was converted or misappropriated, how long
something was converted or miisappropriated, whether Pohl attempted to stop the
conversion or misappropriation, when and how Pohl attempted to stop the
conversion or misapporopriation, and what Pohl did to stop, prevent or safeguard
against any converlsion or misappropriation.
Moreoveir, Kassab also objects to the next sentence in this paragraph,
wherein Pohl claims that the information taken “include[s] original client
contingency fee contracts between my clients and me (and to which Precision and/or
its affiliates are not parties); documentation of contact and personal information;
claim information; compilations of former and current clients; and supporting
materials.” Under Texas law, Pohl is not the owner of this information; “a client
owns the contents of his or her file.” In re Cook, 597 S.W.3d 589, 597 (Tex. App. –
Houston [14th Dist.] 2020, no pet.). Therefore, Pohl’s statement that he is the owner
of this information is conclusory because Pohl does not explain howk he owns the
information as opposed to his clients. C
Pohl’s statement that “Kirk Ladner (a former owner of Precision) admitted to
absconding with those files and, without my consent, kepit them at his residence
until they were later delivered, also without my consent, to Scott Favre, the
subsequent managing member of Precision” is conclusory and contains hearsay.
What Ladner purportedly admitted to is hearsay. See TEX. R. EVID. 801(c).
Additionally, Pohl does not provide any lfactual support for his conclusion that
Ladner purportedly absconded withM the files. Therefore, in addition to being
hearsay, the statement is also conclusory.
Kassab objects to Paragiraph 7 which states, “Precision also refused to return
and converted to its own use multiple computers that I purchased for my office and
which Precision usedo while there performing services for me.” This statement is
conclusory becausle it fails to provide any factual support for the statement that
Precision allegiedly refused to return or converted to its own use computers allegedly
purchased by Pohl. Pohl fails to state when he allegedly purchased computers, how
many computers were purchased, which of the computers purchased were
converted, what type of computers he is referring to and when these mysterious
computers where converted.
Kassab objects to multiple statements in Paragraph 8 as conclusory and
speculative, lacking personal knowledge and because they contain hearsay.
First, the statement “Precision expressed their understanding of the
confidential nature of the information based on their prior experiencek in providing
litigation-related services to BP claims facilities and to attorneyCs, a field in which
Precision held themselves out to me as experienced professionals” is conclusory.
Pohl does not state who at Precision allegedly expressed thieir understanding of the
confidential nature of the information, how it was expressed, when it was
expressed, where it was expressed, why it was expressed or who it was expressed to.
Pohl also does not state who at Precision allegedly held themselves out to Pohl as
“experienced professionals” or provide factls to demonstrate how that occurred, when
it occurred, or where it occurred, if it Meven did.
Second, the statement, “Precision expressed their understanding of the
confidential nature of the infoirmation” is also impermissible hearsay. See TEX. R.
EVID. 801(c).
Third, Kassab oobjects to the following statement “Nevertheless, without my
consent, and altholugh they were without legal title to the contracts, documents,
computers, paisswords or data stored thereon, Precision purported to sell the
contracts, documents, computer, passwords and/or stored data to Scott Favre (even
after I had informed Favre that the materials had been stolen from me by
Precision), who it appears (with Tina Nicholson’s assistance) eventually sold those
items and the information therein to Kassab.” This statement is conclusory because
Pohl does not explain why Precision would not have his consent to do what it
allegedly did, or why Precision would not have “legal title” to the information. Pohl’s
contention that Precision did not have “legal title” is an unsupported legal
conclusion. Moreover, Pohl’s statement that Precision “purportedk to sell” or
“appears” to have eventually sold the information to Kassab is nCothing more than
speculation by Pohl as what Precision did, which is insufficient. See Ryland Grp. v.
Hood, 924 S.W.2d 120, 122 (Tex. 1996) (“interested witnesis’ affidavit which recites
that the affiant ‘estimates,’ or ‘believes’ certain facts to be true will not support
summary judgment.”); Essex Ins. Co. v. Mason Bros. Constr., Inc., No. 07-02-0408-
CV, 2004 Tex. App. LEXIS 5740, at *13 (Tex. App. – Amarillo June 29, 2004, pet.
denied) (mem. op.) (statement that “it appelars” some fact occurred was conclusory).
Kassab also objects to ParagrMaph 9 as conclusory. Pohl states “Prior to the
two year period leading up to the filing of this case, I was unaware that Scott Favre
and Precision, with the assistiance of Tina Nicholson, had sold my information to
Kassab and Montague.” But Pohl provides no facts to support any conclusion that
an actual sale occurreod. Pohl does not state how he knows a sale occurred or provide
any details of thel purported sale. Pohl fails to state where an alleged sale took
place, what wias sold, who paid what for an alleged sale, how he was privy to this
alleged sale or how he has personal knowledge of any kind related to this alleged
sale. Moreover, Pohl fails to provide facts to support his conclusion that he was
unaware of any purported sale.
Pohl also states, “And, in fact, that sale occurred in November of 2016, less
than two years before this suit was filed.” But again, Pohl fails to provide any detail
relating to how he knows or has personal knowledge of a purported sale occurring
on this date. Thus, Kassab objects to this statement as well because it iks conclusory.
Kassab also objects to paragraph 10 because it is vagueC, ambiguous, not
clear, positive or direct, or free from contradiction. Pohl states in paragraph 10
that, “Pohl, Precision, and other entities and individuals weire parties to a lawsuit in
Federal court in Mississippi, . . .” He then states, “No other Defendants were
parties to the Federal Court Case.” Pohl does not identify what “other entities and
individuals were parties to the lawsuit.” Therefore, when he states, “No other
Defendants were parties to the Federal Clourt Case”, the entire paragraph is not
clear, positive, direct or free from conMtradiction, and therefore, it is also vague and
ambiguous, and must be struck. TEX. R. CIV. P. 166a(c); McIntire v. Ramirez, 109
S.W.3d 741, 749 (Tex. 2003); Tirico Techs. Montiel, 949 S.W.2d 308, 310 (Tex. 1997)
(to establish facts, an interested witness’s testimony must be clear, positive, direct,
credible, free from conotradiction and uncontroverted even though it could have been
readily controverteld). Since the testimony does not meet these requirements, it will
not support suimmary judgment. See Casso v. Brand, 776 S.W.2d 551, 558 (Tex.
1989).
Kassab also objects to Exhibits 1 and 2 attached to Pohl’s declaration and
objects to paragraphs 12 and 13, which attempt to authenticate Exhibits 1 and 2
within the declaration. Pohl swears under oath that Exhibits 1 and 2 are “true and
correct”, however, Pohl provides no basis for this statement.
Pohl states that “Exhibit 1 is a true and correct copy of an agreement among
and between Scott Favre, PA LLC, the Kassab Law Firm and Montakgue, Pittman
and Varnado, P.A., dated November 10, 2016 executed by LCance Kassab and
produced by Precision to Pohl after the court’s April 24, 2017 order in the Federal
Court Case.” However, Pohl is not a party to the alleged aigreement. Additionally,
Pohl does not state how he knows the document is what he purports it to be. Pohl
does not state that he was present when the alleged agreement was executed, nor
does he state that he saw the parties execute the alleged agreement. Moreover,
Pohl does not provide any details relatling to his statement that this alleged
agreement was “produced by PrecisiMon to Pohl.” Pohl does not state how it was
allegedly produced, when it was produced, where it was produced or why it was
produced. Pohl also fails to staite what order he is referring to.
Additionally, Pohl states that “Exhibit 2 is a true and correct copy of an
email, dated Decembeor 7, 2016 from Doug Montague to Lance Kassab, with copies
to Tina Nicholson,l Scott Favre, and Andrea Mendez, and produced by Precision to
Pohl after thei court’s April 24, 2017 order in the Federal Court Case.” However,
Pohl is not a party to the alleged email. Furthermore, Pohl does not state how he
knows the document is what he purports it to be. Pohl does not state that he was
present when the alleged email was drafted, who drafted it or why it was drafted or
sent, nor does he state that he saw the parties draft or send the alleged email.
Moreover, Pohl does not provide any details relating to his statement that this
alleged agreement was “produced by Precision to Pohl.” Pohl does not state how it
was allegedly produced, when it was produced, where it was produced or why it was
produced. Pohl also fails to state what order he is referring to. k
An affidavit must show affirmatively that the witness is cCompetent. Tex. R.
Civ. P. 166a(f). Competency does not refer to the sufficiency of the specific
testimony, which is an issue of personal knowledge. Laidilaw Waste Sys. v. City of
Wilmer, 904 S.W.2d 656, 661 (Tex. 1995) (witness was found not competent to
testify about property metes and bounds because he made only conclusory
statements). Additionally, an affidavit must be based on the affiant’s personal
knowledge and must state that the facts lin it are true and correct. Humphreys v.
Caldwell, 888 S.W.2d 469, 470 (TexM. 1994); see TEX. R. EVID. 602 (evidence must
show how witness has personal knowledge); Kerlin v. Arias, 274 S.W.3d 666, 668
(Tex. 2008) (affidavit did not ishow how witness could have personal knowledge of
particular events); Radio Station KSCS v. Jennings, 750 S.W.2d 760, 761-62 (Tex.
1988 (affidavit did noto show how witness became familiar with facts about operation
of radio station). lBecause Pohl’s declaration fails to show personal knowledge and
competency reigarding the prove up Exhibits 1 and 2, they must be struck.
Accordingly, Kassab requests that Paragraphs 5, 6, 7, 8, 9 and 10 of Pohl’s
declaration be stuck. Additionally, Kassab requests that Exhibits 1 and 2 attached
to Pohl’s affidavit be struck. With these paragraphs and exhibits struck, Pohl has
failed to raise a genuine issue of material fact to defeat Kassab’s claims of
10
limitations, res judicata and attorney immunity, rendering summary judgment in
favor of Kassab proper.
REPLY
A. Limitations e
Pohl argues that his claims against Kassab accrued when Kasab allegedly
purchased Pohl’s confidential information through a contratct dated November 10,
2016. Resp. at 5. However, Pohl testified under oath, and the evidence demonstrates
that Pohl accused Kassab of stealing his informeation and knew of Kassab’s
involvement in 2014 but did not immediately filue a lawsuit against Kassab because
he “wanted to spend time to reflect on it before taking action [and] didn’t want to do
anything that was precipitous.” Mot. Eaxhibit 3, at 93. Pohl’s argument that “it does
not matter” that he knew of Precision’s purported theft earlier is without merit
because a cause of action accruees when (1) “the allegedly tortious act was committed
and caused an injury;” or (2f) “facts come into existence that authorize a party to
seek a judicial remedy.” United Healthcare Servs., Inc. v. First St. Hosp. LP, 570
S.W.3d 323, 335 (Tex. App.—Houston [1st Dist.] 2018, pet. denied). This is true
even if all resuliting damages have not yet occurred. Schlumberger Tech. Corp. v.
Pasko, 544 oS.W.3d 830, 834 (Tex. 2018)
Pohl testified under oath that he learned of the basis of his purported claims
against Kassab during discovery in the Federal Court Case. Mot. Exhibit 1.
Specifically, Pohl testified during the course of discovery in that case it was
“revealed” that Precision – a defendant in this case – and the company’s former
11
owners (Walker and Ladner) allegedly “undertook to convert, misappropriate, for
themselves and/or market to third parties [Kassab] claimant files and other
information and materials that belong to [him].” Mot. Exhibit 1, at 28. Pohl
testified: “Those items include original client contingency fee contractsk between my
clients and me …, documentation of contact and personal inCformation, claim
information and supporting materials.” Id. Pohl testified that those files “were at
one time maintained in approximately seventeen clear plaistic file containers” and
that “Ladner admitted absconding with those files from [Pohl’s] satellite law office
and, without [Pohl’s] consent, kept them at his residence until they were later
delivered, also without [Pohl’s] consent, to Scott Favre” – the current owner of
Precision, who is also a defendant in this lcase. Id. Pohl complains in that affidavit
that Nicholson “refused to return anMd converted to [her] own use” four computers
that Pohl purchased for his office and which Precision used while soliciting clients
for Pohl. Id. Pohl testifies thait those computers contained “marketing information
and other trade secrets, [his] proprietary client forms” and other unidentified work
product. Id. Pohl testoifies that the “theft and unlawful disclosure was made even
more egregious” wlhen Favre refused to return the information and “appears [to
have] eventuailly sold those items and the information therein to [Kassab].” Mot.
Exhibit 1, at 29. In substance, Pohl testified under oath that Kassab and his “crew”
broke into his office in “Gulfport, Mississippi” and stole his stuff in 2014.
Notably, Pohl does not dispute any of this testimony in his Response. Rather,
Pohl states that “Kassab bears the burden to and must ‘conclusively prove when’
12
each of Pohl’s causes of action accrued and must also negate the discovery rule to be
entitled to summary judgment on limitations. Resp. at 3. However, Kassab has
conclusively proven when each of Pohl’s causes of action accrued—the testimony
came straight from Pohl’s mouth when he testified under oath as ouktlined above
and in more detail within the Motion for Summary JudgmentC. And, although
Kassab did negate the discovery rule by Pohl’s own sworn testimony, Pohl never
pled the discovery rule. Thus, the discovery rule does niot apply to the pending
motion. Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517 (Tex. 1988) (party
seeking to avail itself of the discovery rule must plead the rule). Moreover, the
discovery rule only applies when the subject matter is inherently undiscoverable
and objectively verifiable. Wagner & Brouln, Ltd. v. Horwood, 58 S.W. 3d 732, 734
(Tex. 2001). Pohl testified under oaMth that Kassab and his crew stole his stuff in
2014. There is nothing inherently undiscoverable about this.
Pohl attempts to autheinticate and cite to an alleged email that somehow
proves that Kassab obtained his documents at a later date beyond 2014. However,
the proposition Pohl oattempts by way of the alleged email is not only contrary to
Pohl’s sworn testilmony, but it also proves absolutely nothing relating to Kassab’s
alleged unlawiful conduct. The alleged email not only contains hearsay, but it also
does not provide any passage that states that Pohl’s documents are being obtained
by Kassab on a particular date. In fact, Pohl’s name is nowhere to be found in the
email. Nor was he a party to the email. Thus, the alleged email proves nothing
even if it were admitted into the summary judgment record.
13
B. Res Judicata
Pohl argues that Kassab has not established that he was in privity with the
parties in the Federal Court Case and has not established that the claims against
Kassab are the same that were made in the Federal Court Casek. Resp. at 8.
However, Kassab conclusively did establish the element of priCvity and that the
second action was based on the same claims as were or could have been raised in
the first action. i
Pohl has sued Favre and Precision in this litigation for the same conversion
and theft of trade secrets he is suing Kassab for. Pohl also sued Precision in the
Federal Court Case. And, of course, Precision was owned by Favre during the
pendency and settlement of the Federal Clourt Case. Additionally, Pohl has alleged
and judicially admitted that Favre, PMrecision and Kassab are co-conspirators to the
conversion and trade secrets claims. Thus, Kassab is in privity with Precision and
Favre relating to the claims miade in the Federal Court Case. Palaxar Grp., LLC v.
Williams, No. 6:14-cv-758-0rl-28GJK, 2014 U.S. Dist. LEXIS 138533, at *43 (M.D.
Fla. Sep. 30, 2014); oSeenyur v. Coolidge, No. 16-cv-3832 (WMW/BRT), 2018 U.S.
Dist. LEXIS 5895l, at *6 (D. Minn. Jan. 12, 2018) (“Members of a conspiracy are
deemed underi the law to be in privity with each other.”); RSM Prod. Corp. v.
Freshfields Bruckhaus Deringer US LLP, 800 F. Supp. 2d 182, 193 (D.D.C. 2011)
(same). See also SED Holdings, L.L.C. v. TM Prop. Sols., L.L.C. (In re 3 Star Props.,
L.L.C.), 2021 U.S. App. LEXIS 22430 (5th Cir. 2021).
14
Additionally, Kassab conclusively proved that the claims made in this case.
In the Federal Court Case, not only did Pohl sue Precision for alleged theft of his
property (Mot. Exhibit 2, par. 6), but Pohl recognized during discovery that
Precision and Walker had allegedly “undertook to convert, misappkropriate, for
themselves and/or market to third parties” like Kassab “claimaCnt files and other
information and materials” that allegedly belonged to Pohl, including “original
client contingency fee contracts between [Pohl’s] cilients and [Pohl] …,
documentation of contact and personal information, claim information and
supporting materials.” Mot. Exhibit 1, par 28. Pohl identifies that material as
“marketing information and other trade secrets,” and claims that it was stolen by
Precision and its current or former ownelrs, including Favre, a defendant in this
case, and Favre’s counsel, Nicholson, Malso a defendant in this case. Id. Pohl testifies
that the “theft and unlawful disclosure was made even more egregious” when Favre
“appears [to have] eventualliy sold those items and the information therein to
[Kassab].” Mot. Exhibit 1, par. 29.
In this case, Poohl alleges that, while working for him, Precision “gained
access to Pohl’s colnfidential and proprietary information and property, including
trade secret miaterials, that included the identities of Pohl’s clients/prospective
clients, as well as their detailed contact information.” Pohl’s Pet., p. 20. Pohl
alleges that 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.” Pohl’s Pet., p. 21. Pohl can not run away
15
from his own sworn testimony. Therefore, res judicata has been conclusively
proved.
C. Attorney Immunity
Pohl argues that the attorney immunity doctrine does not applky to Kassab’s
conduct, and thus, summary judgment cannot be granted on atCtorney immunity.
Pohl cites a couple of cases that stand for general principals which do not apply
here, yet fails to distinguish any of the multitude of caises that Kassab cites to
support his argument regarding attorney immunity.
However, the law in Texas is clear and unambiguous, “[A]n attorney is
immune from liability to nonclients for conduct within the scope of his
representation of his clients.” Youngkin v.l Hines, 546 S.W.3d 675, 681 (Tex. 2018).
The inquiry “focuses on the kind Mof conduct at issue rather than the alleged
wrongfulness of said conduct.” Id. “That is, a lawyer is no more susceptible to
liability for a given action meriely because it is alleged to be fraudulent or otherwise
wrongful.” Id. “Merely labeling an attorney’s conduct ‘fraudulent’ does not and
should not remove it ofrom the scope of client representation or render it ‘foreign to
the duties of an alttorney.’” Id. at 483. Even “criminal conduct is not categorically
excepted fromi the protections of attorney civil immunity when the conduct alleged
is connected with representing a client in litigation.” Bethel v. Quilling, Selander,
Lownds, Winslett & Moser, P.C., 595 S.W.3d 651, 657 (Tex. 2020); Cantey Hanger,
LLP v. Byrd, 467 S.W.3d 477, 483 (Tex. 2015) (“an attorney’s conduct may be
wrongful but still fall within the scope of client representation”).
16
The entire basis for Pohl’s lawsuit against Kassab is that Kassab allegedly
purchased the purportedly stolen information and “solicited [Pohl’s]
clients/prospective clients to act as plaintiffs … to bring cases against Pohl for
alleged barratry and other claims.” Pohl’s Pet., par. 29. The esseknce of Pohl’s
claims against Kassab are “that Kassab bought Pohl’s client list fCrom [Precision] so
that Kassab could send advertisements to Pohl’s former clients and solicit them to
become Kassab’s clients in barratry suits against Pohl.” Kaissab v. Pohl, 612 S.W.3d
571, 578 (Tex. App.—Houston [1st Dist.] 2020, pet. denied) (characterizing Pohl’s
claims against Kassab). These claims fall squarely within attorney immunity, and
Pohl’s characterization of this conduct as wrongful is immaterial. See Highland
Capital Mgmt., LP v. Looper Reed & McGlraw, P.C., No. 05-15-00055-CV, 2016 Tex.
App. LEXIS 442 (Tex. App.—Dallas JMan. 14, 2016, pet. denied) (mem. op.) (“That [a
party] characterized the firm’s conduct as fraudulent or otherwise wrongful was
immaterial to [the court’s] evailuation of the immunity defense.”).
The fact that Kassab is alleged to have committed the misconduct prior to
any litigation is immaoterial because “attorney immunity applies to claims based on
conduct outside thle litigation context[.]” See Haynes & Boone, LLP v. NFTD, LLC,
No. 20-0066, i2021 Tex. LEXIS 423, at *32 (May 21, 2021); Cantey Hanger, 467
S.W.3d at 485 (stating that “[t]he majority of Texas cases addressing attorney
immunity arise in the litigation context [,] [b]ut that is not universally the case” and
concluding that attorney was immune from conduct that occurred after litigation
had ended); Santiago v. Mackie Wolf Zientz & Mann, P.C., No. 05-16-00394-CV,
17
2017 Tex. App. LEXIS 2092, at *10 (Tex. App.—Dallas Mar. 10, 2017, no pet.)
(mem. op.) (recognizing that Texas courts “have noted that attorney
immunity applies outside of the litigation context” and citing opinions).
In this very case, the court of appeals opined that “the allegedk purchase of
Pohl[’s] client list for those clients’ contact information, followedC by the mailing of
attorney advertisements to those individuals about specific types of claims they
might be able to pursue against a specifically identifiedi attorney, qualifies as
statements or conduct that arose out of a commercial transaction
involving the type of legal services Kassab provides.” Kassab, 612 S.W.3d at
578 (emphasis added).1 That court opined that “the intended audience of [Kassab’s
alleged] statement or conduct were indilviduals with potential legal claims who
Kassab sought to represent in barrMatry suits against Pohl. These were Kassab’s
potential clients to whom he offered the kind of legal services he provides.” Id. at
579. i
The acquisition of clients and filing of lawsuits are actions “taken and
communications madeo to facilitate the rendition of legal services” and are protected
by the attorney imlmunity doctrine. Youngkin, 546 S.W.3d at 682. Because Pohl’s
claims againsti Kassab are “based in part” on that conduct (Pohl’s Pet., par. 29), the
attorney immunity doctrine applies, and Pohl’s claims are barred as a matter of
law. See id.; Highland Capital Mgmt., 2016 Tex. App. LEXIS 442, at *16; Sacks v.
Hall, No. 01-13-00531-CV, 2014 Tex. App. LEXIS 12570, at *30 (Tex. App.—
1 This is the law of the case. No matter how Pohl wishes to characterize the facts, he cannot escape
the court of appeals opinion and renderings in this case.
18
Houston [1st Dist.] Nov. 20, 2014, no pet.) (mem. op.) (attorney not liable to third
party for filing confidential medical records because the filing of the records did not
constitute an action “foreign to the duties of an attorney.”); Bradt v. West, 892
S.W.2d 56, 72 (Tex. App.—Houston [1st Dist.] 1992, writ denied) (“an kattorney does
not have a right of recovery, under any cause of action, againsCt another attorney
arising from conduct the second attorney engaged in as part of the discharge of his
duties in representing a party.”) (emphasis added). i
III
CONCLUSION & PRAYE e R
For the reasons set forth herein and inu the initial Motion for Summary
Judgment, Defendants/Counter-Plaintiffs Lance Christopher Kassab and The
Kassab Law Firm respectfully requesta the Court to sustain the objections made
herein and grant this Motion for Summary Judgment, ordering that Plaintiffs take
nothing in their claims againste Lance Christopher Kassab and The Kassab Law
Firm. f
Respectfully submitted,
THE KASSAB LAW FIRM
i / s / Lance Christopher Kassab
i LANCE CHRISTOPHER KASSAB
o Texas State Bar No. 00794070
lance@kassab.law
DAVID ERIC KASSAB
Texas State Bar No. 24071351
david@kassab.law
1214 Elgin Street
Houston, Texas 77004
Telephone: 713.522.7400
Facsimile: 713.522.7410
19
ATTORNEYS FOR LANCE
CHRISTOPHER KASSAB AND THE
KASSAB LAW FIRM
CERTIFICATE OF SERVICE C
I hereby certify that a true and correct copy of the above and foregoing
instrument has been forwarded to all parties pursuant to thte Texas Rules of Civil
Procedure on this the 1st day of August, 2021. i
/ s / Lance Christopher Kassab
Lance eChristopher Kassab
20"