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
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Suni Blue on behalf of Jean Frizzell
Bar No. 7484650
sblue@reynoldsfrizzell.com r
Envelope ID: 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
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Suni Blue on behalf of Jean Frizzell
Bar No. 7484650
sblue@reynoldsfrizzell.com r
Envelope ID: 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
Thallia Malespin tmalespin@reynoldsfrizzell.com 9/18/2023 8:21:13 PM SENT
Misty Davis mdavis@reynoldsfrizzell.com 9/18/2023 8:21:13 PM SENT
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"
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
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Jason M.Ciofalo jason@cioofalolaw.com 2/4/2022 3:45:54 PM SENT
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Dale Jefferson 10607900pjefferson@mdjwlaw.com 2/4/2022 3:45:54 PM SENT
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Chris C.Pappas cpappas@krcl.com 2/4/2022 3:45:54 PM SENT
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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"