filing_id,date,doc_type,party,description,doc_type_detail,procedural_posture,chain,outcome,phase,filename,relief_requested,full_text
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
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
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Kevin Graham Cain 24a01l2371 cain@mdjwlaw.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"
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"