filing_id,date,doc_type,party,description,doc_type_detail,procedural_posture,chain,outcome,phase,filename,relief_requested,full_text
23,2022-01-31,RSP,Kassab,Kassab’s response to Pohl MSJ on CC,The Kassab Parties' Response to Plaintiffs' Motion for Summary Judgment on Defendants' Counterclaims for Civil Barratry,"Kassab's opposition brief responding to Pohl's Motion for Summary Judgment seeking dismissal of Kassab's barratry counterclaims. Filed January 31, 2022, approximately 55 days after Pohl's motion. This is the response in the CC-1 motion chain. Attorneys: Lance Christopher Kassab, David Eric Kassab, and Nicholas R. Pierce of The Kassab Law Firm.",CC-1,N/A,Phase 2,2022-01-31_RSP_Kassab-Response-to-Pohl-MSJ-on-CC_FILED.pdf,Deny Pohl's Motion for Summary Judgment on Defendants' Counterclaims,"1/31/2022 3:03 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 61310680
By: Deandra Mosley
Filed: 1/31/2022 3:03 PM
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 PARTIES’ RESPONSE TO PLAINTIFFS’ MCOTION FOR
SUMMARY JUDGMENT ON DEFENDANTS’ COUNTERCLAIMS
Defendants and Counter-Plaintiffs Lance Christophter Kassab and Lance
Christopher Kassab, P.C. d/b/a/ The Kassab Law Firm (collectively, “Kassab”), files
this, their Response to Plaintiff and Counter-Defeendants Michael Pohl and Law
Office of Michael A. Pohl, PLLC’s Motion for Suummary Judgment on Defendants’
Counterclaims, and would respectfully show the following.
SUaMMARY
The Motion filed by Michael A. Pohl and Law Office of Michael A. Pohl, PLLC
(“Pohl”) should be denied. Res jeudicata does not apply because facts have changed
and the relationship betweefn the parties has been altered. Specifically, Pohl sued
Kassab arising from the same transaction where the barratry occurred, and the
clients assigned the barratry claims to Kassab to be brought as counterclaims in
this action, thuis allowing Section 16.069 to revive the otherwise time-barred
barratry cloaims. Section 16.069 plainly applies because Pohl’s claims against
Kassab and the barratry counterclaims arise from the same transaction in which
Precision Marketing Group, LLC (“Precision”) solicited clients for Pohl and obtained
the alleged confidential information that Kassab is alleged to have obtained. The
clients’ assignments of their barratry counterclaims against Pohl to Kassab are not
invalid, either as a matter of law or for purported non-compliance with the
Disciplinary Rules. Regardless, the law is clear that technical non-compliance with
the Disciplinary Rules is insufficient to void otherwise valid contracts like the
Assignments. k
BACKGROUND C
On October 8, 2014, Scott Walker, Kirk Ladner, and their company Precision
sued Pohl and his law firm for breach of contract and fraiud, among other claims
(“the Federal Court Case”). See Walker v. Williamson, No. 1:14cv381-KS-JCG, 2016
U.S. Dist. LEXIS 61185, at *5-6 (S.D. Miss. May 9, 2016). In the Federal Court
Case, Walker, Ladner and Precision (“the Runners”) alleged that Pohl contracted
with them to provide “public relations anld marketing services” to potential clients
impacted by the Deepwater HorizonM oil spill in exchange for “a percentage of the
attorney fees for the claims obtained from their efforts, along with expenses and a
flat fee.” Id. at *6-7. “There iis evidence that the [Runners] contacted people and
businesses in Mississippi to determine if they might have a claim against BP,
encouraged those peoople to retain Pohl as their attorney, and were paid over $5
million in ‘barratrly pass-through money’ for their services.” Kassab v. Pohl, 612
S.W.3d 571, 57i4 (Tex. App. – Houston [1st Dist.] 2020, pet. denied).
The Runners also alleged that they contracted with Pohl “to provide
marketing and public relations services in connection with claims for automobile
rollover accidents.” Walker v. Williamson, No. 1:14-CV-381-KS-MTP, 2017 U.S.
Dist. LEXIS 59031, at *5 (S.D. Miss. Apr. 18, 2017). Among those solicited were two
families from Louisiana and Arkansas, who presented evidence that they were
illegally and unethically solicited by the Runners to hire Pohl. See Cheatham v.
Pohl, No. 01-20-00046-CV, 2022 Tex. App. LEXIS 649, at *9 (Tex. App.—Houston
[1st Dist.] Jan. 27, 2022, no pet.). They presented evidence that kPohl and his
associating attorney “were aware of the solicitation of potentiaCl clients and that
[Walker] had phone conversations with Pohl and [his associating counsel] from
inside potential clients’ hospital rooms to discuss the attorniey ‘marketing.’” Id.
The Runners eventually sued Pohl because they “procured thousands of
viable BP claims” and “approximately sixty motor vehicle accident cases” for Pohl
but that Pohl “did noy pay any of the agreed share of his fees” or all expenses
incurred. Walker v. Williamson, No. 1:14l-cv-381-KS-JCG, 2016 U.S. Dist. LEXIS
76488, at *5, 24 (S.D. Miss. Mar. 1, 20M16).
During discovery in the Federal Court Case, Pohl discovered that the
Runners allegedly “disclosedi confidential and proprietary information to third
parties without authorization” and proposed “the ‘sale’ of all of [his] accumulated
work product to thirod parties” while working for him.1 Pohl testifies that the
Runners “undertolok to convert, misappropriate for themselves and/or market to
third parties iclaimant files and other information and materials” that allegedly
belonged to Pohl2 – including “marketing information and other trade secrets”3 –
1 Exhibit 1, Pohl’s June 19, 2018 Affidavit, at ¶ 18.
2 Exhibit 1, at ¶ 28.
3 Exhibit 1, at ¶ 28.
and then the new owner of Precision, Scott Favre, allegedly “sold those items and
the information” to Kassab.4
As a result, Pohl “asserted multiple claims against” the Runners in the
Federal Court Case based on their alleged “fraudulent and bad faith coknduct.”5 Pohl
did not assert any claims against Kassab in the Federal Court CasCe, even though he
testified under oath that he knew Kassab allegedly was part of the “team of thieves”
who broke into Pohl’s office in 2014 and stole his confiidential information and
purported trade secrets.6 Pohl eventually settled his claims against the Runners,
and the Federal Court Case was dismissed with prejudice on April 24, 2017.7
After hearing about Pohl’s client-solicitation activities, Kassab began
researching the matter and met with Favlre and his counsel, Tina Nicholson. Pohl,
612 S.W.3d at 574. Favre informedM Kassab that, when he bought Precision, he
acquired files related to Pohl and Favre transferred that information to Kassab. Id.
Kassab prepared advertisemenit letters approved by the State Bar of Texas and sent
it to the people who had been illegally solicited by Pohl, informing them that they
may have potential obarratry claims against Pohl. Id. at 575. “Hundreds of
Mississippi residenlts responded to Kassab’s advertisement letter”, “[m]ore than 400
signed represientation contracts with Kassab’s firm to pursue barratry claims
4 Exhibit 1, at ¶ 29.
5 Exhibit 1, at ¶ 19; Exhibit 2, Pohl’s Amended Counterclaim.
6 Exhibit 3, May 15, 2018 Deposition of Michael Pohl, pp. 85-93.
7 Exhibit 4, April 21, 2017 Judgment.
against Pohl”, and “Kassab filed four barratry suits against Pohl in Harris County
district courts, each with multiple named plaintiffs.” Id.
One of those lawsuits – the Berry case – settled for a confidential amount.8
Another of those lawsuits – the Cheatham case – was wrongly kdismissed on
summary judgment in favor of Pohl by the trial court and reversCed and remanded.
See Cheatham, 2022 Tex. App. LEXIS 649, at *34. The two other cases – Brumfield
and Gandy – were dismissed on summary judgment soliely based on limitations
grounds. See Brumfield v. Williamson, 634 S.W.3d 170 (Tex. App.—Houston [1st
Dist.] 2021, pet. denied); Gandy v. Williamson, 634 S.W.3d 214 (Tex. App.—Houston
[1st Dist.] 2021, pet. denied).
Meanwhile, Pohl filed this litigatlion against Kassab, Favre, Nicholson,
Precision, and others, for conversMion, misappropriation of trade secrets and
conspiracy.9 Here, Pohl rehashes his allegations from the Federal Court Case,
claiming that “Precision gaiined access to Pohl’s confidential and proprietary
information and property, including trade secret materials” and “work product” and
“illegally misapproprioated” this information and then allegedly “secretly sold Pohl’s
confidential informlation to Kassab”10 who then “solicited clients/prospective clients
[of Pohl’s] to aict as Plaintiffs . . . to bring cases against Pohl for alleged barratry and
other claims.”11
8 Exhibit 5, Declaration of Lance Kassab, at ¶ 5.
9 See Pohl’s First Amended Petition (“Petition”),
10 Petition, at ¶¶ 20-21.
11 Petition, at ¶ 29.
Seeing Pohl’s retaliatory suit as a means to potentially revive the barratry
claims dismissed on limitations in Brumfield and Gandy, Kassab and his clients
executed 242 Limited Assignments (“the Assignments”).12 The Assignments
assigned only the clients’ barratry claims against Pohl to Kassab, in kconsideration
of Kassab’s continued work on the claims.13 Importantly, howeveCr, Kassab and the
clients agreed that, in the event there was a recovery on the assigned barratry
claims against Pohl, Kassab would only deduct his 40% conitingency fee interest and
the remaining 60% of the recovery would go to the clients.14
Accordingly, within 30 days of his answer being due, Kassab filed his third
amended counterclaim, asserting 242 barratry claims against Pohl pursuant to the
Assignments. See Kassab 3rd Am. Countelrclaim at 11. Kassab affirmatively pled
Section 16.069 of the Texas Civil PraMctice & Remedies Code, which provides that a
counterclaim arising out of the same transaction or occurrence that is the basis of
an action may be brought evein if it would be barred by limitations. Id. Kassab also
provided a multi-page statement of facts, explaining how the barratry claims arise
out of the same transoaction and occurrence as Pohl’s claims against Kassab. Id. at
4-11. Finally, Kalssab asserted several affirmative defenses, including unclean
hands, illegaliity, and in pari delicto. Id. at 3.
12 Kassab Declaration, at ¶ 11.
13 Kassab Declaration, at ¶ 11; Motion, at Exhibit J (example Assignments).
14 Kassab Declaration, at ¶ 11.
Pohl now moves for traditional summary judgment on the barratry
counterclaims. For the reasons stated herein, summary judgment should be denied.
SUMMARY JUDGMENT STANDARD
In a traditional summary judgment motion, the movant has tkhe burden to
show that no genuine issue of material fact exists and that the Ctrial court should
grant judgment as a matter of law. TEX. R. CIV. P. 166a(c); KP
MG Peat Marwick v.
Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tiex. 1999). A defendant
moving for traditional summary judgment must negate at least one essential
element of each of the plaintiff's causes of action or establish each element of an
affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.
1997). The Court must (1) take as true all levidence favorable to the nonmovant and
(2) indulge every reasonable inferencMe and resolve any doubts in the nonmovant's
favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).
ARiGUMENT & AUTHORITIES
Pohl makes three arguments to support his request for dismissal of the
barratry counterclaimos: (1) res judicata; (2) limitations; and (3) the Assignments are
invalid as a mattler of law, based on public policy and because they purportedly
violate the Disiciplinary Rules. Each argument will be addressed, but none warrant
summary judgment.
A. Res judicata does not apply because facts have changed
and the relationship between the parties has been
altered.
The Texas Supreme Court has made clear that “a judgment in one suit will
not operate as res judicata to a subsequent suit on the same questionk between the
same parties where, in the interval, the facts have changed, oCr new facts have
occurred which may alter the legal rights or relations of the parties.” Marino v.
State Farm Fire & Cas. Ins. Co., 787 S.W.2d 948, 949-i50 (Tex. 1990). In other
words, “res judicata is not a defense in a subsequent action if there has been a
change in the material facts” because “no judgment can affect subsequently arising
rights and duties.” Id. Simply put, “[e]stoppel by judgment extends only to facts in
issue as they existed at the time the judgmlent was rendered[.]” Lubbock v. Stubbs,
327 S.W.2d 411, 414 (1959). M
Even if the barratry claims were barred by the statute of limitations as the
prior judgments in Brumfield iand Gandy concluded, there was a change in material
facts when Pohl sued Kassab for claims arising from the same transaction that the
barratry occurred, anod the barratry claims were assigned to Kassab thereby giving
Kassab the abilityl to revive the once-barred claims pursuant to Section 16.069. In
other words, tihe prior judgments based on limitations are not res judicata on the
barratry counterclaims because Section 16.069 was not an available defense to the
clients in the prior litigation. See Marino, 787 S.W.2d at 950 (res judicata did not
bar insured’s subsequent suit for bad faith because claim was not available when
the first judgment was entered). Accordingly, res judicata does not apply.15
B. The barratry counterclaims are not barred by
limitations.
Even if the barratry claims were at one time barred by limietations, Section
16.069 of the Civil Practice and Remedies Code revived those claims when Kassab
brought them as counterclaims to Pohl’s action. Section 16.06t9 section provides:
(a) If a counterclaim or cross claim arises out of the same
transaction or occurrence that is the basis of an action, a party
to the action may file the counterclaeim or cross claim even
though as a separate action it would be barred by limitation on
the date the party’s answer is requiured.
(b) The counterclaim or cross claim must be filed not later than the
30th day after the date on whlich the party’s answer is required.
TEX. CIV. PRAC. & REM. CODE § 16.06M9. Pohl contends that Section 16.069 does not
apply here because (1) the barratry counterclaims “do not arise out of the same
transaction or occurrence” ias Pohl’s claims; (2) Kassab did not assert the
counterclaims within the 30-day deadline; and (3) the purpose of the statute would
be frustrated. Mot. ato 9-14. All three arguments fail.
15 Res judicata also does not apply because, according to Pohl, the barratry claims that were
dismissed “do not arise out of the same transaction or occurrence as Pohl’s claims.” Motion, at 9. If
that is true, then Pohl is not entitled to summary judgment on res judicata because that doctrine
only works to bar subsequent claims that arise out of the same transaction or occurrence. See Barr v.
Resolution Trust Corp. ex rel. Sunbelt Fed. Sav., 837 S.W.2d 627, 631 (Tex. 1992) (“a final judgment
on an action extinguishes the right to bring suit on the transaction, or series of connected
transactions, out of which the action arose.”).
1. Both Pohl’s claims and Kassab’s counterclaims
arise out of the same transaction or occurrence:
Pohl’s engagement of Precision to “liaise” with
prospective clients.
Texas courts apply “a logical relationship test to determine whether
counterclaims arise out of the same transaction or occurrence.” Comemint Technical
Servs., Inc. v. Quickel, 314 S.W.3d 646, 653 (Tex. App. – Houston [14th Dist.] 2010,
no pet.). Pohl argues that the facts relevant to the barratry ctounterclaims are “in no
way relevant to Pohl’s claims of conversion and theft of trade secrets.” Mot. at 9.
But the facts for both claims need only arise frome the same “transaction,” which
courts define as a “flexible [and] comprehenduing a series of many occurrences
logically related to one another.” Wells v. Dotson, 261 S.W.3d 275, 281 (Tex. App.—
Tyler 2008, no pet.). The facts underlyinag Pohl’s conversion and theft of trade secret
claims are logically related to the same facts underlying the barratry counterclaims.
A comparison of the pleadings deemonstrates this point.
In his petition, Pohl aflleges that he “engaged Precision for a period of time to
provide public relations services, to gather and preserve evidence, and to screen and
liaise with Pohl’s clients/prospective clients” and that, during this engagement,
“Precision gaineid access to Pohl’s confidential and proprietary information and
property, inocluding trade secret materials, that included the identities of Pohl’s
clients/prospective clients, as well as their detailed contact information.” Pohl Am.
Pet. at ¶ 20. Pohl alleges that Precession and its subsequent owner Farve “secretly
sold Pohl’s stolen and confidential information” to Kassab, which is the basis of
Pohl’s theft and trade secret claims. Id. at ¶ 21.
10
In his counterclaim, Kassab alleges that Pohl’s engagement of Precision was
not to provide “public relations services” but was to illegally and unethically solicit
clients in violation of the laws and rules governing barratry. See Kassab 3rd Am.
Ans. and Counterclaim at 4-5. Kassab alleges that Pohl did not hirek Precision to
“liaise” with clients, but to unethically solicit them to retain PoChl. Id. at 5-6. The
barratry counterclaims are based on 242 Assignments that Kassab received from
the clients who were solicited by Precision, at Pohl’s instruiction, and are part of the
group of clients who own the information that Pohl alleges Kassab misappropriated.
Id. at 10-11.
Pohl’s claims against Kassab and Kassab’s counterclaims against Pohl both
arise from the relationship between Polhl and Precision. The facts relevant to
determining whether Precision gainMed access to Pohl’s confidential information
while “liaising” with prospective clients are also relevant to determining whether
the “liaising” conducted by Priecision – at Pohl’s direction – amounted to unlawful
barratry. Accordingly, the logical relationship test is satisfied. See Quickel, 314
S.W.3d at 653 (breaoch of contract claim and defamation claim met the logical
relationship test elven though one “span[ed] a longer time period and involve[d]
broader issuesi” because they both arose “from the breakdown of the employment
relationship between” the two parties).
Pohl cites several cases to argue that courts have refused to apply Section
16.069 “in cases involving much more related claims than the counterclaims Kassab
asserts.” Mot. at 10. But the cases that Pohl cites are clearly distinguishable.
11
Pohl first relies on Freeman v. Cherokee Water Co., 11 S.W.3d 480 (Tex.
App.—Texarkana 2000, pet. denied). In Freeman, the Cherokee Water Company
brought a declaratory judgment action against the Freemans to interpret one
provision in a deed, pertaining to a grant of fishing rights. Id. at 483. Ikn response to
that action, the Freemans filed a counterclaim to set aside the enCtire deed based on
an alleged fraudulent execution of the deed. Id. at 483. The court concluded that the
Freemans’ counterclaim for fraud was not logically relaited to Cherokee’s action
because it “in no way relate[d] to the fishing rights [provision], or any other
interpretation of the deed.” Id.
Freeman has no application here. Pohl’s claims and Kassab’s counterclaims
are logically related, particularly becausel both claims depend on the manner in
which Precision worked for Pohl Mto procure client contact information. Pohl
contends that during the relationship, Precision obtained client information and
sold it to Kassab, while Kaissab contends that during that same relationship
Precision obtained the clients giving rise to the purportedly confidential information
illegally. Kassab’s couonterclaims arise out of the same transaction or occurrence –
the work providedl by Precision “marketing group” to acquire clients and client
information – iwhich is also the basis for Pohl’s action.
Pohl’s reliance on T&C Constr., Ltd. v. Brown Mech. Servs., No. 01-19-00041-
CV, 2020 Tex. App. LEXIS 5067 (Tex. App.—Houston [1st Dist.] July 9, 2020, no
pet.) is also mistaken. The court in T&C Constriction declined to apply Section
16.069 to save an otherwise barred unjust enrichment claim because it related not
12
to the transaction underlying the breach of contract claim brought by the plaintiff,
but to “payments made for a separate job” relating to separate contract. Id. at
*16. Here, Kassab’s counterclaims for barratry and Pohl’s claim for theft of trade
secrets all arise from the same transaction or occurrence: Precision’s kmarketing to
to acquire clients and secure client information. It is immateriaCl that the claims
may also require a showing of different facts because only “some of the facts
surrounding the causes of action [need] arise from thie same transaction or
occurrence.” Encore Enters., Inc. v. Borderplex Realty Tr., 583 S.W.3d 713, 722 (Tex.
App.—El Paso 2019, no pet.) (emphasis added).
Pohl argues that whether he solicited the clients in 2012 to 2014 has no
bearing on Kassab’s alleged misconduct inl 2016. Mot. at 11. But again, claims can
arise from the same transaction evenM if they involve “a series of many occurrences”
so long as they are “logically related to one another.” Wells, 261 S.W.3d at 281. That
is the case here. Pohl compilains that Kassab allegedly purchased confidential
information acquired by Precision while it was performing client acquisition
services, thus giving orise to Pohl’s claim for misappropriation. Kassab complains
that the client acqluisition performed by Precision was illegal and unethical, thus
giving rise to tihe barratry counterclaims. Simply put, Kassab’s alleged purchase of
client information from Precision (which is contested) derived out of the client
acquisition from Precision. Both claims are logically related to one another,
regardless of the time that elapsed between occurrences. See Rahlek, Ltd. v. Wells,
587 S.W.3d 57, 75 (Tex. App.—Eastland 2019, pet. denied) (concluding declaratory
13
judgment action to construe 2006 deed was logically related to unjust enrichment
counterclaim arising out of royalty payments made pursuant to the deed in 2013).
Accordingly, Section 16.069(a) is satisfied, and the statute of limitations on
the barratry counterclaims is tolled once Kassab complied with sectionk (b) by filing
the counterclaims not later than the 30th day after the date on Cwhich his answer
was due.
2. Kassab asserted valid and suifficiently pled
counterclaims within the 30-day deadline.
Pohl does not dispute that Kassab filed his baerratry counterclaims within the
30-day deadline. Mot. at 11. Instead, Pohl arugues that the counterclaims were
insufficiently alleged to “satisfy the requirements of the statute” because they did
not provide “any indication of who assiganed the claims” or provide “fair notice of the
facts giving rise to the claims[.]” Mot. at 11. This argument fails as well.
Pohl relies on Rogers v. eVeigel Inter Vivos Tr. No. 2, 162 S.W.3d 281 (Tex.
App.—Amarillo 2005, pet. defnied) to argue that Kassab’s pleadings were deficient.
Mot. at 11-12. Notably, Pohl does so without discussing the facts of Rogers. Pohl
fails to do so because Rogers is easily distinguishable.
Rogers wais an estate dispute. 162 S.W.3d at 285. The plaintiff, ANB, sued to
be removedo as trustee of the decedent’s estate. Id. The grandchildren of the
decedent, R.W., answered and asserted the following “averment” in their “answer”
as a purported counterclaim for damages:
[R.W.] denies that ANB should be removed as Trustee at this time, in
that there is a question as to acts of the Trustee under Ardella's
Intervivos Trust No. 2 and under the estate of Charles[.]
14
Id. at 289-290 (cleaned up). The Rogers court looked to Rule 47 and concluded that
the averment was insufficient to assert a counterclaim, reasoning:
There is no general prayer for relief, no allegation that the damages
were within the trial court's jurisdictional limits, and no description of
any particular cause of action. All [the defendant] did was deny [the
plaintiff’s] allegation that it should be allowed to resign as trustee.
And, he based that denial upon the mere suggestion thatt there were
“questions” about [the plaintiff’s] “acts.” What the “quesitions” or “acts”
were, what rights or interests of [the defendant], if asnty, were involved,
or the injury, if any, supposedly suffered by [the dDefiendant] due to the
unspecified acts went unmentioned. 
While Texas follows the theory of “notice pleadings,” … the concept
still requires the litigant to provide fair notice of the claims involved to
the accused. [citation omitted]. And, to be fair, the allegations must be
sufficient to inform a reasonably competent attorney of the nature and
basic issues of the controversy and of the potentially relevant evidence.
[citation omitted]. Merely stating tlhat ANB should not be allowed to
resign because of unspecified “quaestions” created by unspecified “acts”
hardly falls within that ambit.
Id. at 289.
The Rogers court also nioted that, after a discovery dispute arose relating to
the allegations in R.W.’s answer, R.W.’s counsel stated to the trial court that R.W.
“filed nothing seekingo affirmative relief from [ANB]” and “there is no affirmative
relief sought froma l [ANB].” Id. “Given the oblique nature of the allegations relied
upon by R.W.f,i their failure to satisfy the requirements of Rule 47, and R.W.’s own
representation to the trial court made in effort to defeat discovery, [the Rogers court
was] unable to say that the original answers of R.W. included counterclaims.” Id. at
289-290.
15
Rogers does not apply here. Unlike R.W., Kassab has not agreed that he is
not seeking affirmative relief. To the contrary, Kassab has plainly asserted a
counterclaim against Pohl:
See Kassab 3rd Am. Ans. and Counterclaim aBt 1. And unlike the pleading filed by
R.W., Kassab contained an allegation ythat the damages were within the
jurisdictional limitation of the Court:
Id. at 2. Moreover, unlpike R.W., Kassab included a specific cause of action against
Pohl: “a counterclaim for civil barratry.” Id. at 11. And unlike the single sentence
asserted by R.Wi., Kassab’s counterclaim is supported by seven pages of facts
discussing oconduct committed by Pohl which amounted to barratry.16 Id. at 4-11.
Finally, unlike R.W., Kassab asserted a prayer for affirmative relief:
16 For this reason, Pohl’s contention that Kassab’s counterclaim is “devoid of any of the facts giving
rise to the claims” is false, as with most of his factual assertions. Mot. at 12.
16
Id. at 13. Kassab’s counterclaim was more than suffiscient “to provide fair notice of
the claims involved to the accused.” Rogers, 162 S.rW.3d at 289.
In essence, Pohl’s argument is that Kassab’s counterclaim is insufficient to
provide fair notice because Kassab did notl specifically identify who the assignors of
the claims were. Mot. at 12. But there is no requirement under Rule 47 for an
assignee to state the identity of the assignor; rather, the claimant need only provide
“a short statement of the cauise of action sufficient to give fair notice of the claim
involved.” TEX. R. CIV. P. 47(a) (emphasis added). Nor does Rule 45 – the rule
stating what pleadingos must include – require the assignee to identify the assignor.
See TEX. R. CIV. Pa.l 45(b) (requiring only that the pleading “consist of a statement in
plain and conf icise language of the plaintiff’s cause of action or the defendant’s
grounds of defense.”). Rather, “Texas follows a ‘fair notice’ standard for pleading, in
which courts assess the sufficiency of pleadings by determining whether an
opposing party can ascertain from the pleading the nature, basic issues, and the
type of evidence that might be relevant to the controversy.” Low v. Henry, 221
17
S.W.3d 609, 612 (Tex. 2007). Kassab’s pleading met that fair notice standard, and
any details about the Assignments could be obtained by Pohl through discovery,
which he did.17
3. Pohl’s policy arguments about why Skection
16.069 should not apply here fail. e
Pohl next resorts to policy, arguing that the “object and purpose” of Section
16.069 would be frustrated if it is applied here. Mot. at t12-14. This last-resort
argument is also unavailing.
Pohl begins by relying on Holman St. Baptist eChurch v. Jefferson, 317 S.W.3d
540, 545 (Tex. App.—Houston [14th Dist.] 20u10, pet. denied) and Ball v. SBC
Communs., Inc., No. 04-02-00702-CV, 2003 Tex. App. LEXIS 5286 (Tex. App.—San
Antonio June 25, 2003, pet. denied) tao argue that “courts have limited [Section
16.069’s] reach, such as ruling it does not revive claims made in response to
declarations not requesting aeffirmative relief.” Mot. at 13. But Ball has no
application here because Pofhl is not seeking a declaration which does not request
affirmative relief, and Holman contradicts Pohl’s argument.
The court in Ball concluded that Section 16.069 “does not revive or save
claims brought biy a party as counterclaims in a suit for declaratory judgment which
alleges thaot such claims are absolutely barred by limitations as a matter of law.”
2003 Tex. App. LEXIS 5286 at *16. The court held that to conclude otherwise would
lead to an “unjust and unreasonable” result not intended by the legislature because
it would allow otherwise barred claims to be revived in an action brought to declare
17 Moreover, Pohl could have obtained a hearing on his special exceptions if he actually believed that
Kassab’s pleadings were deficient. He failed to do so.
18
the claims barred by limitations. Id. at *11-13. “Were [the court] to hold that section
16.069 revives claims which are absolutely barred by limitations as a matter of law,
the result would be that a litigant would never be able to seek a declaratory
judgment based on limitations because a defendant could always use skection 16.069
to defeat such a suit.” Id. at *11. C
Holman relied on Ball to state that one party’s “mere seeking of a declaration
on limitations regarding his purported debt to [the otheir party] did not trigger
section 16.069(a).” 317 S.W.3d at 545. Importantly, however, the Holman court
recognized that if, “in addition to the declaration on limitations, [the party] also
sought affirmative relief”, than Section 16.069 would apply. Id. at 546. This is
because “[c]ourts have interpreted sectionl 16.069 as permitting a party’s otherwise
time-barred counterclaims or cross clMaims only when the opposing party has sought
‘affirmative relief,’ rather than just a declaration on a dispute between the parties.”
Id. at 545. The Holman courti concluded “the request for return of the stock [made
by the plaintiff] was a request for affirmative relief triggering section 16.069(a).” Id.
at 546. o
Ball is distilnguishable because this is not a suit brought by Pohl solely to
obtain a declairation that the assigned barratry claims are barred by limitations. In
fact, Pohl does not seek declaratory relief at all. Rather, just as in Holman, Pohl
seeks affirmative relief against Kassab for purported conversion and theft of trade
secrets arising out of the documents that evidence Pohl’s illegal barratry scheme.
19
Accordingly, Section 16.069 applies, and Pohl is not entitled to summary judgment
on limitations. See Holman, 317 S.W.3d at 545.
C. The Assignments are not invalid, do not violate public
policy or the Disciplinary Rules, and should be enforced.
Pohl’s last argument again resorts to public policy and asks theis Court to void
the Assignments because they are purportedly in “violation of ethical rules.” Mot. at
14. Although Pohl’s sudden regard for ethics is refreshing, Ttexas law is clear that a
purported violation of an ethical rule does not void an otherwise valid contract. And
Pohl’s reliance on cases prohibiting assignments eof claims under the DTPA is
unavailing because this is not a DTPA case. Moure fundamentally, Pohl has argued
that the Assignments are valid, and he should be estopped from taking a contrary
position in this case. We will address thaat point first.
1. Pohl should be estopped from arguing that the
Assignments are invalid.
Although Pohl arguesi that the Assignments are invalid here, he has
simultaneously argued to the Texas Supreme Court that the Assignments are valid.
Specifically, Pohl reqouested the Texas Supreme Court to dismiss the appeals filed
by the assignee cllients in Brumfield and Gandy because the barratry claims were
assigned to Kiassab.18 Pohl argued that, “[o]n its face, the documents [the
assignments] assign ‘any and all’ barratry claims [so] the Assignor retains no
justiciable interest in the claims.”19 Pohl should be estopped from playing “fast and
18 Exhibit 5-A, Brumfield Motion to Dismiss; Exhibit 5-B, Gandy Motion to Dismiss.
19 Exhibit 5-A, Brumfield Motion to Dismiss, at 5; Exhibit 5-B, Gandy Motion to Dismiss, at 5.
20
loose” with the judicial system by taking these two wholly inconsistent and contrary
positions. See Ferguson v. Bldg. Materials Corp. of Am., 295 S.W.3d 642, 643 (Tex.
2009) (stating that a litigant is estopped from taking inconsistent positions to obtain
an unfair advantage). k
2. The Assignments are not invalid as a mattCer of law.
A civil barratry claim under Section 82.0651(a) brought by a client is a
“contract-based” claim. See Cheatham, 2022 Tex. Appi. LEXIS 649, at *23.
Generally, claims sounding in contract are assignable, regardless of whether they
are created by statute. See Lindsay ex. rel. Lindsay v. South San Antonio Indep.
Sch. Dist., 983 S.W.2d 778, 779-80 (Tex. App.—San Antonio 1998, no pet.) (claim for
statutory benefits was assignable becausel although the “cause of action exists by
virtue of statutory law, it bears signiMficant resemblance to a common law action for
breach of contract.”). Civil barratry claims under Section 82.0651(c) sound in tort.
Nguyen v. Watts, 605 S.W.3di 761, 781 (Tex. App.—Houston [1st Dist.] 2020, pet.
denied). Generally, tort claims are also assignable. State Farm Fire & Cas. Co. v.
Gandy, 925 S.W.2d 6o96, 707 (Tex. 1996). There are two exceptions to assignability
of claims that warlrant discussion, but neither applies here.
The firsit exception is that “an assignment of a legal malpractice action
arising from litigation is invalid.” Zuniga, Jr. v. Groce, Locke & Hebdon, 878 S.W.2d
313, 318 (Tex. App.-San Antonio 1994, writ ref'd). However, Pohl has argued – and
the court of appeals has agreed – that a civil barratry claim “is not malpractice that
is committed in the prosecution or defense of a claim” resulting from litigation.
21
Brumfield, 634 S.W.3d at 206. In fact, the court in Brumfield rejected as
“misplaced” the clients’ effort to “analogize legal-malpractice claims to civil-barratry
claims … because any alleged improper solicitation would have occurred before the
formation of the attorney-client relationship[.]” Id. at 205 n. 34. Acckordingly, the
rule prohibiting assignments of legal malpractice claims has noC application here.
See id. (declining to extend the Hughes tolling rule – which tolls limitations on
claims against the attorney when he commits malpractiice in the prosecution or
defense of a claim that results in litigation – to civil barratry claims).
The second exception – which is principally relied on by Pohl20 – is that
“DTPA claims generally cannot be assigned by an aggrieved consumer to someone
else.” PPG Indus. v. JMB/Houston Ctrs. Lltd. P'ship, 146 S.W.3d 79, 92 (Tex. 2004).
That exception does not apply here foMr the simple fact that a civil barratry claim is
not a DTPA claim. In fact, in his briefing filed with the Texas Supreme Court in
Brumfield and Gandy, Pohli explicitly stated that “civil barratry claims are
different” than DTPA claims.21 Nonetheless, Pohl again attempts to play loose with
contrary arguments boy analogizing barratry claims to DTPA claims and asserting
that the “analysisl” of PPG “applies to the assignability of barratry claims in this
case.” Mot. at 1i6. Pohl’s reliance on PPG is mistaken for at least two reasons.
First, the court in PPG noted that its decision did “not prohibit equitable
assignments, such as a contingent-fee interest assigned to a consumer’s attorney.”
20 Mot. at 15-17.
21 Exhibit 5-C, Brumfield Response, at 22; Exhibit 5-D, Gandy Response, at 22.
22
146 S.W.3d at 91-92. The Assignments in this case were just that; equitable
assignments from Kassab’s clients to Kassab in exchange for continuing work that
Kassab would perform on the claims.22 The assignments were effectuated in an
attempt to salvage the clients’ barratry claims, with the intention okf paying any
proceeds from the assigned claims back to the clients in proportCion to the original
contingency fee agreement should Kassab obtain any recovery.23 The assignments
were equitable in nature, created to benefit the clients whoi were unknowing victims
of barratry committed by Pohl.24
Second, the concerns that the PPG court had with DTPA assignments are not
present here. The court noted that it had “prohibited assignments that may skew
the trial process, confuse or mislead thel jury, promote collusion among nominal
adversaries, or misdirect damages froMm more culpable to less culpable defendants.”
146 S.W.3d at 90. Those issues are not present in this case, under these unique
circumstances. Kassab and hiis clients who assigned the claims are not adversaries,
they are aligned. And the damages will not be misdirected from the more culpable
to less capable partieos, but will remain directed to the most culpable party: Pohl.
Finally, no jury colnfusion will occur. The PPG court noted that, because the DTPA
permits mentail anguish and exemplary damages, “[j]urors are bound to experience
some confusion in assessing mental anguish of a consumer, or punitive damages
22 Kassab Declaration, at ¶ 11.
23 Kassab Declaration, at ¶ 11.
24 Kassab Declaration, at ¶ 11; Given this evidence, Pohl’s contention that “[l]awyers like Kassab are
in a position to take advantage of clients by purchasing assignments far below their potential value
given statutory penalties” is unsupported and without merit.
23
based on the situation and sensibilities of the parties when the affected consumer is
not a party.” Id. Unlike the DTPA, the civil barratry statute does not provide for
mental anguish or punitive damages; it permits only actual damages, attorney’s
fees, disgorgement, and civil penalties. TEX. GOV’T CODE § 82.0651(bk), (d). These
remedies may be awarded regardless of the “situation and seCnsibilities” of the
solicited client.
Therefore, the reasoning of PPG is inapplicable to thie Assignments here, and
they are presumptively valid and should be enforced.
3. The Assignments do not violate public policy,
nor were they procuured in violation of the
ethical rules; regardless, the Assignments
cannot be voided on those grounds.
Suddenly struck by a sense of eathical responsibility which has been lacking
from Pohl’s moral compass for at least two decades,25 Pohl argues that the
Assignments are invalid becausee Kassab allegedly obtained them in violation of the
ethical rules. Mot. at 17. Of fcourse, Pohl cites no evidence for this proposition; only
argument of counsel. See Mot. at 17-19. While words from Pohl’s counsel may carry
great weight within the confines of their own office, it is well-settled that in the
court of law “coiunsel’s statements are not evidence.” Ex parte Ubadimma, 623
S.W.3d 530o, 533 (Tex. App.—Houston [14th Dist.] 2021, no pet.). Regardless, Pohl’s
argument not only lacks evidentiary support, but legal support as well.
25 Pohl indisputably began committing barratry shortly after the 2010 BP Deepwater Horizon when
he paid Precision and its members “over $5 million in ‘barratry pass-through money’ for their
services” which included “contact[ing] people and businesses in Mississippi to determine if they
might have a claim against BP [and] encourage[ing] those people to retain Pohl as their attorney[.]”
Pohl, 612 S.W.3d at 574. Later, in 2014, Pohl illegally and unethically solicited two families who lost
loved ones. See Cheatham, 2022 Tex. App. LEXIS 649, at *3.
24
Pohl argues that the Assignments purportedly violated Rule 1.08(h) because
they “concern causes of action and the subject matter of litigation where Kassab
represented those clients.” Mot. at 19. However, Rule 1.08(h) specifically allows a
lawyer to “acquire a lien granted by law to secure the lawyer’s fee ork expenses[.]”
TEX. R. PROF’L COND. 1.08(h). The Assignments do not violate RuCle 1.08(h) because
they were effectuated to secure a lien in Kassab’s existing fee, and help Kassab
recover that fee, with the remainder from any recovery baised on the Assignments
going back to the clients.26
But even if the Assignments are noncompliant under sine unknown
technicality with Rule 1.08(h), that alone is insufficient to void them. This is
demonstrated by Wright v. Sydow – a clase cited by Pohl27 – which held that a
settlement agreement would be enforMced even if it were executed in violation of Rule
1.08 because a purported violation of the disciplinary rules does not void an
otherwise valid contract. See 1i73 S.W.3d 534, 549 (Tex. App.—Houston [14th Dist.]
2004, pet. denied) (“We decline to use Disciplinary Rule 1.08 to void an otherwise
valid settlement agreoement entered into at arm’s length”). The Fourteenth Court of
Appeals very recenltly reiterated this holding and concluded that “an agreement is
not illegal, voiid, or unenforceable as against public policy when the agreement
contravenes [a Disciplinary Rule].” M.A. Mills, P.C. v. Kotts, No. 14-20-00395-CV,
2022 Tex. App. LEXIS 359, at *17 (Tex. App.—Houston [14th Dist.] Jan. 20, 2022,
no pet.). Therefore, even if the Assignments are unethical and in violation of Rule
26 Kassab Declaration, at ¶ 11.
27 See Mot. at 18.
25
1.08 (and they are not), the Court cannot void them. See id. at *21 (concluding that
an oral agreement between attorneys “was not illegal, void, and unenforceable
because it contravened Rule 1.08(a).”).
Pohl also contends that the Assignments should be declared invkalid based on
“equitable considerations” because they “injury the public good.C” Mot. at 18. But
“one who comes seeking equity must come with clean hands.” Omohundro v.
Matthews, 341 S.W.2d 401, 410 (1960). Pohl has the fiilthiest of hands, having
committed felony barratry28 by illegally and unethically soliciting the clients who
assigned their claims. See Pohl, 612 S.W.3d at 574 (noting the “evidence” that
Precision and its members were hired by Pohl to solicit clients and “paid over $5
million in ‘barratry pass-through money’ lfor their services.”). It would not “injure
the public good” to allow clients whosMe barratry claims may otherwise be barred by
limitations to assert those claims through an assignment to their attorney if it
means that the claims would ibe salvaged, and the clients could obtain a relief for
Pohl’s unethical conduct. To the contrary, voiding the Assignments only injures the
unknowing clients aond the public, because it rewards attorneys like Pohl who
knowingly commilt felony barratry and then breach their fiduciary duty of full
disclosure by cioncealing the crime so that limitations may expire.
The Court should not invalidate the Assignments, it should enforce them so
that Pohl may finally be held accountable for his reprehensible actions that the
Legislature has mandated courts like this one to protect against. See TEX. GOV’T
CODE § 82.0651(e) (providing for liberal construction and application of the civil
28 See TEX. PEN. CODE § 38.12.
26
barratry statute “to protect those in need of legal services against unethical,
unlawful solicitation and to provide efficient and economical procedures to secure
that protection.”).
CONCLUSION & PRAYER k
For the foregoing reasons, the Court should deny MichaelC A. Pohl and Law
Office of Michael A. Pohl, PLLC’s Motion for Summary Judgment on Defendants’
Counterclaims. i
Respectfully submitted,
THE KASSAB LAW FIRM
__________________________
lLANCE CHRISTOPHER KASSAB
a Texas State Bar No. 00794070
M lance@kassab.law
 DAVID ERIC KASSAB
Texas State Bar No. 24071351
e david@kassab.law
i NICHOLAS R. PIERCE
f Texas State Bar No. 24098263
nicholas@kassab.law
1214 Elgin Street
o Houston, Texas 77004
Telephone: 713-522-7400
l Facsimile: 713-522-7410
i E-Service: eserve@kassab.law
o ATTORNEYS FOR KASSAB PARTIES
27
CERTIFICATE OF SERVICE
I certify that on this date, January 31, 2022, I electronically filed this
document with the Clerk of the Court using the eFile.TXCourts.gov electronic filing
system which will send notification of such filing to all parties or counsel of record.
______________________e_
DAVID ERIC KASSAB C
28
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
David Kassab
Bar No. 24071351
david@kassab.law r
Envelope ID: 61310680
Status as of 1/31/2022 3:07 PM CST
Case Contacts r i
Name BarNumber Email TimestampSubmitted Status
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com s1/31/2022 3:03:09 PM SENT
Todd Taylor ttaylor@jandflaw.com g1/31/2022 3:03:09 PM SENT
Scott M.Favre scott@favrepa.com u 1/31/2022 3:03:09 PM SENT
Lance Kassab eserve@kassab.law  1/31/2022 3:03:09 PM SENT
Murray Fogler mfogler@fbfog.comy 1/31/2022 3:03:09 PM SENT
Murray JFogler mfogler@foglerbarar.com 1/31/2022 3:03:09 PM SENT
Larry Newsom lnewsom@krcl.com 1/31/2022 3:03:09 PM SENT
Jason M.Ciofalo jason@cioofalolaw.com 1/31/2022 3:03:09 PM SENT
Misty Davis mdavis@reynoldsfrizzell.com 1/31/2022 3:03:09 PM SENT
Andrew J. Sarne asafrne@krcl.com 1/31/2022 3:03:09 PM SENT
Kathryn Laflin KLaflin@KRCL.com 1/31/2022 3:03:09 PM SENT
Dale Jefferson 10607900pjefferson@mdjwlaw.com 1/31/2022 3:03:09 PM SENT
Raul Herman Suazo 24003C021 suazo@mdjwlaw.com 1/31/2022 3:03:09 PM SENT
Kevin Graham Cain 24a01l2371 cain@mdjwlaw.com 1/31/2022 3:03:09 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 1/31/2022 3:03:09 PM SENT
Solace Southwicko ssouthwick@reynoldsfrizzell.com 1/31/2022 3:03:09 PM SENT
E. MarieJamisUon jamison@wrightclosebarger.com 1/31/2022 3:03:09 PM SENT
Jessica Z.Barger barger@wrightclosebarger.com 1/31/2022 3:03:09 PM SENT
Chris C.Pappas cpappas@krcl.com 1/31/2022 3:03:09 PM SENT
Todd Taylor ttaylor@jandflaw.com 1/31/2022 3:03:09 PM SENT
David R.Wade lawyerwade@hotmail.com 1/31/2022 3:03:09 PM SENT
Felicia Grace fgrace@krcl.com 1/31/2022 3:03:09 PM SENT"
17,2021-07-26,RSP,Pohl,Pohl’s response to Kassab MSJ,"Pohl's Response in Opposition to Kassab's Traditional Motion for Summary Judgment, addressing all three grounds (limitations, res judicata, attorney immunity)","Response brief filed in Phase 2 opposing Kassab's dispositive Traditional MSJ. Pohl argues Kassab's motion recycles the same arguments and limited evidence from the TCPA motion and interlocutory appeal, and was filed prior to responding to any discovery. Filed July 26, 2021, approximately 7 weeks after Kassab's MSJ.",MSJ-1,N/A,Phase 2,2021-07-26_RSP_Pohl-Response-to-Kassab-Traditional-MSJ_FILED.pdf,Deny Kassab's Traditional Motion for Summary Judgment in all respects,"7/26/2021 2:51 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 55701585
By: Deandra Mosley
Filed: 7/26/2021 2:51 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’ RESPONSE IN OPPOSITION TO DEFENDANTS LANCE
CHRISTOPHER KASSAB AND LANCE CHRISTOPHER KASSAB, PC’S
TRADITIONAL MOTION FOlR SUMMARY JUDGMENT
Plaintiffs Michael Pohl and Law OfMfice of Michael A. Pohl (collectively “Pohl”) respond
in opposition to the Traditional Motion for Summary Judgment filed by Defendants Lance
Christopher Kassab and Lance Christopher Kassab, P.C., d/b/a The Kassab Law Firm (collectively
“Kassab”). Kassab’s Traditional Motion for Summary Judgment (the “Motion”), which Kassab
filed prior to responding to any discovery, relies on the same arguments and (very limited)
evidence previously presented to this Court and the First Court of Appeals in Kassab’s motion
under the TCPA.c Kassab’s arguments were not persuasive then, nor is his recycled assertion of
them persuasive now.
I. FACTUAL BACKGROUND
Pohl is a lawyer who represented various persons and entities in claims arising from motor
vehicle accidents and the British Petroleum Deepwater Horizon oil spill.1 Pohl engaged Precision
1 Sworn Declaration of Michael A. Pohl (the “Pohl Declaration”) ¶ 3, attached as Exhibit A.
Marketing Group, LLC (“Precision”) to provide public relations services, to gather and preserve
evidence, and to screen and liaise with Pohl’s clients and prospective clients.2 While working for
Pohl, Precision naturally gained access to Pohl’s confidential and proprietary information and
property, including trade secret materials.3 Scott Favre, individually and/or thkrough Scott M.
Favre PA, LLC (collectively “Favre”) is the managing member of Precision.4 Flavre took physical
copies of Pohl’s information, stole Pohl’s computers, and misappropriatecd electronic data.5
In November 2016, Kassab—a lawyer who specializes in suinsg other lawyers—purchased
Pohl’s stolen confidential information and property from Favsre (with the assistance of other
Defendants) for a whopping $250,000, plus bonuses,6 taking possession of at least some of the
information and property in December 2016.7 Kassab highly valued Pohl’s stolen and
misappropriated confidential information and property because, after purchasing it, he used it to
contact and solicit Pohl’s clients and prospectiave clients.8 Kassab’s actions constitute conversion,
violations of the uniform trade secrets act (“TUTSA”), and conspiracy.
Favre’s sale of Pohl’s stolen ceonfidential information and client communications to Kassab
violated the terms of a settlementf agreement. That confidential settlement agreement, executed in
late April or early May 2017y (the “Settlement Agreement”), resolved a lawsuit in federal court in
Mississippi, styled No.C 1:14-cv-381-KS-JCG, Scott Walker, et al. v. Jimmy Williamson, et al., In
The United States District Court For The Southern District of Mississippi, Southern Division (the
2 Id. ¶ 4.
3 Id. ¶ 6.
4 Id.
5 Id. ¶¶ 6–8.
6 November 10, 2016 Agreement, attached as Exhibit 1 to the Pohl Declaration (Exhibit A).
7 December 7, 2016 Email, attached as Exhibit 2 to the Pohl Declaration (Exhibit A).
8 Kassab has admitted using Pohl’s client files (while erroneously claiming that they belonged to Precision Marketing)
to contact Pohl’s clients and former clients to solicit them to file claims against Pohl. See Declaration of Lance
Christopher Kassab, attached as Exhibit 1 to Kassab’s Motion to Dismiss, filed October 24, 2018.
“Federal Court Case”).9 Favre is a party to the Settlement Agreement, but he was not a party to
the Federal Court Case.10 Precision is the only Defendant in this lawsuit that was also party to the
Federal Court Case.11
Pohl timely brought this lawsuit against Kassab and the other Defendantsk on August 28,
2018.12 l
II. ARGUMENT c
A. Pohl’s Claims are Not Barred by Limitations. s
Pohl’s claims against Kassab accrued no earlier than Nsovember 2016 because they arise
from Kassab’s November 2016 purchase—and subsequent use—of information and property
stolen from Pohl. As no claim has a limitations period of less than two years, and Pohl brought
this lawsuit in August 2018, Pohl’s claims are not barred. Even if this were not so, Kassab has
failed to carry his burden to show that the claimas against him accrued outside the limitations period.
1. The summary judgment standard for the affirmative defense of limitations.
Kassab bears the burden to aned must “conclusively prove when” each of Pohl’s causes of
action accrued and must also nefgate the discovery rule to be entitled to summary judgment on
limitations. See Regency Fiyeld Services, LLC v. Swift Energy Operating, LLC, 622 S.W.3d 807,
818 (Tex. 2021) (“a deCfendant seeking summary judgment based on limitations must conclusively
establish that the limaitations period expired before the claimant filed suit”); see also Motion at 6
(acknowledgingf that Kassab bears this burden).
9 Pohl Declaration ¶¶ 10–11, attached as Exhibit A.
10 Id.
11 See id. ¶ 10; Federal Court Case Order, attached as Exhibit 4 to the Motion (showing parties in the caption). Pohl
made Precision a party to the Federal Court Case through a counterclaim. See generally Pohl’s Federal Counterclaim,
attached as Exhibit 2 to the Motion.
12 See generally Pohl’s Original Petition, filed August 28, 2018.
“Generally, a claim accrues when the defendant’s wrongful conduct causes the claimant to
suffer a legal injury, which gives the claimant the right to seek a judicial remedy.” Regency, 622
S.W.3d at 814 (emphasis added). Texas courts apply specific tests to determine the accrual of
certain claims, including the three claims at issue here. k
A claim for conversion generally accrues at the time of the defendant’sl “unlawful taking”
of the plaintiff’s property. See Burns v. Rochon, 190 S.W.3d 263, 271 (Tcex. App.—Houston [1st
Dist.] 2006, no pet.). When property is alleged to have been convesrted and then transferred to
another party, “each possession is a new conversion.” Pemex Esxploracion y Produccion v. BASF
Corp., CIV.A. H-10-1997, 2013 WL 5514944, at *31 (S.D. Tex. Oct. 1, 2013) (citation omitted)
(applying Texas law). There is a two-year limitations
period for conversion. See TEX. CIV. PRAC.
& REM. CODE § 16.003(a).
“A cause of action for trade-secret maisappropriation accrues when the trade secret is
actually used. Use of the trade secret means commercial use by which the offending party seeks
to profit from the use of the secret.”e Sw. Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699,
721–22 (Tex. 2016) (cleaned up)f. There is a three-year limitations period for TUTSA violations.
See TEX. CIV. PRAC. & REM y. CODE § 16.010(a). The civil conspiracy claim is derivative of the
underlying torts, and itC accrues “as to each alleged underlying tort when that tort occurs.” Agar
Corp., Inc. v. Electro Circuits Int’l, LLC, 580 S.W.3d 136, 145 (Tex. 2019).
2. Pohflf’s claims against Kassab accrued within two years of the initiation of this suit.
PoUhl brought suit on August 28, 2018 against Kassab and the other Defendants.13 Because
Pohl’s conversion claim accrued after August 28, 2016 and Pohl’s TUTSA claim accrued after
August 28, 2015, Kassab’s affirmative defense of limitations fails.
13 See generally Pohl’s Original Petition, filed August 28, 2018.
Pohl’s conversion claim arises from Kassab’s purchase and subsequent use of information
and property stolen from Pohl. See Amended Complaint ¶¶ 36–38.14 The undisputed evidence
shows that Kassab made this purchase through a contract dated November 10, 2016.15 Kassab
took possession of at least some of Pohl’s information and property in December 2k016.16
Pohl’s conversion claim against Kassab accrued when Kassab took polssession of Pohl’s
property. See Burns v. Rochon, 190 S.W.3d 263, 271 (Tex. App.—Houcston [1st Dist.] 2006, no
pet.). It does not matter if there was a prior claim for conversion sagainst other individuals or
entities, as “each possession is a new conversion.” Pemex Exsploracion y Produccion v. BASF
Corp., CIV.A. H-10-1997, 2013 WL 5514944, at *31 (S.D. Tex. Oct. 1, 2013) (emphasis added).
Because the contract to purchase the property is dated in November 201617 and Kassab was still
acquiring possession of the stolen property in December 2016,18 Pohl’s claim against Kassab for
conversion accrued, no earlier than Decembera 1, 2016—well within the two-year period.
Pohl’s TUTSA claim against Kassab is based on overlapping conduct. Kassab’s knowing
purchase and subsequent use of stolene trade secrets violated TUTSA. See Amended Complaint ¶¶
39–42. Pohl’s TUTSA claim agfainst Kassab accrued upon Kassab’s use of Pohl’s stolen trade
secrets. See Sw. Energy Proyd. Co. v. Berry-Helfand, 491 S.W.3d 699, 721–22 (Tex. 2016).
For Kassab’s liCmitation defense to prevail, he must conclusively show that Pohl’s TUTSA
claim against him accrued prior to August 28, 2015. See TEX. CIV. PRAC. & REM. CODE §
16.010(a) (profvfiding a three-year limitations period). Pohl’s claims accrued no earlier than
NovembeUr 10, 2016, as that is the date of the contract through which Kassab purchased Pohl’s
14 See also November 10, 2016 Agreement, attached as Exhibit 1 to the Pohl Declaration; Declaration of Lance
Christopher Kassab, attached as Exhibit 1 to Kassab’s Motion to Dismiss, filed October 24, 2018.
15 November 10, 2016 Agreement, attached as Exhibit 1 to the Pohl Declaration.
16 December 7, 2016 Email, attached as Exhibit 2 to the Pohl Declaration.
17 November 10, 2016 Agreement, attached as Exhibit 1 to the Pohl Declaration.
18 December 7, 2016 Email, attached as Exhibit 2 to the Pohl Declaration.
trade secrets.19 As Kassab was still acquiring possession of these materials in December 2016,20
his use of Pohl’s trade secrets—and the accrual of Pohl’s TUTSA claim—necessarily occurred
after November 10, 2016.
3. Kassab’s arguments and evidence about prior wrongdoing are irkrelevant to his
limitations defense. e
Kassab focuses on wrongful conduct by others—conduct that does not give rise to Pohl’s
claims in this lawsuit—to argue that limitations bars Pohl’s claims. See Mr iotion at 7–12. However,
in determining when claims against Kassab accrued, it is Kassab’Ds alleged wrongful conduct that
is relevant, not the conduct of others. Kassab’s participations in the sale and purchase of Pohl’s
information, through a contract dated in November 2016r, and Kassab’s subsequent use of that
information is the conduct that gives rise to Pohl’s claims. See Amended Petition ¶¶ 21–23, 26–
29, 33.21 l
Even if the wrongful conduct of oMthers (that did not give rise to Pohl’s claims) were
somehow relevant to Kassab’s limitaotions defense—and it is not—Kassab has not met his
summary judgment burden. Kasscab acknowledges that he bears the burden of negating the
discovery rule. See Motion at 6.22 To do so, Kassab must conclusively establish that Pohl “knew
or in the exercise of reasonable diligence should have known of the wrongful act and resulting
injury” more than three years prior to this lawsuit for his TUTSA claim and more than two years
prior for the convcersion claim. See Regency Field Services, LLC v. Swift Energy Operating, LLC,
622 S.W.3d 807, 817 (Tex. 2021).
19 November 10, 2016 Agreement, attached as Exhibit 1 to the Pohl Declaration.
20 December 7, 2016 Email, attached as Exhibit 2 to the Pohl Declaration.
21 See November 10, 2016 Agreement, attached as Exhibit 1 to the Pohl Declaration; Declaration of Lance Christopher
Kassab, attached as Exhibit 1 to Kassab’s Motion to Dismiss, filed October 24, 2018.
22 See also Pohl’s November 2018 Declaration ¶ 9, attached as Exhibit A to the Amended Petition (providing notice
of the potential application of the discovery rule).
Kassab purports to negate the application of the discovery rule through Pohl’s testimony.
See Motion at 11. However, Kassab’s evidence does not establish what he says it does. The
testimony Kassab cites only shows that at an undefined point prior to Pohl’s May 15, 2018
deposition, Pohl had knowledge of some wrongful conduct by some individual or kindividuals that
occurred in 2014.23 Nothing in Pohl’s testimony establishes when Pohl gaineld knowledge about
the 2014 conduct discussed, nor does it address when Pohl knew of Kassacb’s wrongful conduct.24
And, even if the testimony contained evidence that Kassab wishes its contained, it at most would
create a fact issue regarding the accrual of Pohl’s claims. Pohls has affirmatively testified that he
was not aware of the claims in this case in the two-year period prior to the filing of this case.25
Limitations does not bar Pohl’s claims, and Kassab has not shown that he is entitled to judgment
as a matter of law.
B. Res Judicata Does Not Apply to Poahl’s Claims Against Kassab.
Kassab confuses and contorts the conduct at issue in this lawsuit to argue that Pohl’s claims
are barred by res judicata as a result oef the settlement and dismissal of the Federal Court Case. See
Motion at 12–16. Because Kassafb was not a party to the judgment in the Federal Court Case, he
tries to base his res judicatya defense on an unsupported allegation that he is in privity with
Precision—which wasC a party to the Federal Court Case. Id. at 13–14. Tellingly, Precision did
not move for summary judgment (or to dismiss) on the basis that res judicata bars the claims in
this lawsuit.26 f f
23 See Exhibit 3 to the Motion (discussing Pohl’s knowledge and contentions made in May 2018).
24 See generally id.
25 Pohl’s November 2018 Declaration ¶ 9, attached as Exhibit A to the Amended Petition; see also Pohl Declaration
¶ 9, attached as Exhibit A.
26 See generally Motion to Dismiss filed by Scott Favre, Scott M. Favre Public Adjuster, LLC and Precision Marketing
Group, LLC on November 16, 2018.
Kassab is not entitled to summary judgment on his res judicata defense because he has not
provided evidence that conclusively establishes its three elements. “Res judicata requires: (1) a
prior final judgment on the merits by a court of competent jurisdiction, (2) identity of parties or
those in privity with them, and (3) a second action based on the same claims thakt were raised or
could have been raised in the first action.” Burchfield v. Prosperity Bank, 408l S.W.3d 542, 545–
46 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (citation omitted). c
The second and third elements are at issue here. Kassab scannot establish the second
element, because he admits he was not a party to the prior judsg  ment and provides no evidence
that he is in privity with anyone who was a party to a prior judgment. Furthermore, Kassab’s
evidence does not establish the third element—that Pohl’s claims against Kassab are “the same
as” the claims settled in the other case or that they could have been brought in that case—as the
evidence shows that each of the two actions haas distinct factual bases and parties.
1. Kassab fails to conclusively establish he is in privity with any party to a final judgment.
Kassab is not entitled to summeary judgment because he provided no evidence that he is in
privity with any party to the judgmfent in the Federal Court Case, nor can he provide such evidence.
See Motion at 13. The couryt in the Federal Court Case dismissed all claims with prejudice after
the parties entered intoC the voluntary Settlement Agreement.27 Kassab was not a party to that
agreement or to thea Federal Court Case, and no party to the Federal Court Case represented his
interests in that faction.
TUexas has rejected categorical approaches to privity, and a court must examine the
particular circumstances of a case before it can determine if parties are in privity. See Burchfield,
408 S.W.3d at 546–47. To determine if a person is in privity with a party to a prior action, a court
27 See Federal Court Case Order, attached as Exhibit 4 to the Motion.
must determine if that person satisfies one of three tests: “(1) they can control an action even if
they are not parties to it; (2) their interests can be represented by a party to the action; or (3) they
can be successors in interest, deriving their claims through a party to the prior action.” Burchfield,
408 S.W.3d at 546–47 (quoting Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 653k (Tex. 1996)).
Kassab does not allege that any of these three tests are satisfied, let alonle provide evidence
to conclusively establish privity with a party to the Federal Court Case. Scee Motion at 13. Rather
than addressing the controlling Texas standard, Kassab asserts thats privity exists because Pohl
alleges in this lawsuit that Kassab conspired with Precision—asn entity which was a party to the
Federal Court Case. Motion at 13. Kassab provides no Texas authority to support this assertion,
instead, Kassab cites to three out-of-state cases, none of which apply Texas law. Id.28
While it is possible for co-conspirators to be in privity with each other, under Texas law,
allegations of conspiracy alone are not enougah—Kassab must show that one of the three tests for
privity is satisfied. See Rogers v. Walker, 13-12-00048-CV, 2013 WL 2298449, at *4 (Tex.
App.—Corpus Christi May 23, 2013,e pet. denied); New York Pizzeria, Inc. v. Syal, 53 F. Supp. 3d
962, 969 n.6 (S.D. Tex. 2014) (“Tfhis Court predicts that the Texas Supreme Court would not adopt
a rule that alleged coconspiryators are always in privity for the purposes of claim preclusion, but
would instead hold thaCt courts must consider whether the circumstances justify such a ruling.”).
Kassab does not allege or provide any evidence that he (1) had any control in relation to
the Federal Cofufrt Case; (2) that Precision, any other party, represented Kassab’s interests; or (3)
Kassab wUas a successor in interest to Precision or any other party.
28 Kassab relies on out-of-state cases which are distinct from the facts of this case. For example, he relies on RSM
Prod. Corp. v. Freshfields Bruckhaus Deringer U.S. LLP, 800 F. Supp. 2d 182 (D.D.C. 2011). See Motion at 13. The
court in RSM found co-conspirators to be in privity with each other after the plaintiff attempted to assert the “exact
same alleged corrupt conspiracy” with a new party after that conspiracy claim had been dealt with in a prior action.
See RSM, 800 F. Supp. 2d at 194. The conspiracy alleged in this lawsuit was not part of the Federal Court Case.
Kassab cannot provide evidence to establish control, because, “[i]n determining whether
privity exists through control over a prior action, Texas courts have focused on whether an
individual actively and openly participated in the prior proceedings to such an extent that it was
clear that the individual had the right to direct them.” McNeil Interests, Inc. v. Qkuisenberry, 407
S.W.3d 381, 389 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (quotation lomitted). There is
no evidence to establish that Kassab “openly participated”—or participatced at all—in the Federal
Court Case. s
Kassab also completely fails to prove that Precision reprsesented his interests in the Federal
Court Case. Kassab does not state that he had an interest in the Federal Court Case, let alone
identify that interest or provide evidence that Precision could have represented that interest. See
generally Motion; see also Rogers, 2013 WL 2298449, at *3 (refusing to affirm summary
judgment when movant “did not state that [maovant] had an interest in the probate action, identify
his interest, or state that [a party to the action] could have represented his interest”). The same is
true for the successor in interest test.e No allegations or evidence from Kassab even address this
test, let alone carry Kassab’s sumfmary judgment burden on the issue. See generally Motion.
2. The factual basesy of Pohl’s claims against Kassab are not the “same” as those asserted
in the Federal Court Case, nor could Pohl’s claims have been asserted in that action.
Kassab’s failure to provide evidence of privity prevents him from establishing res judicata.
However, even ifc he had provided evidence of privity, Kassab does not conclusively establish that
this lawsuit “arises out of the same subject matter as the” Federal Court Case and that it could have
been litigated there. Citizens Ins. Co. of Am. v. Daccach, 217 S.W.3d 430, 449 (Tex. 2007).
To determine whether the Federal Court Action shares the same “subject matter” as this
lawsuit, the Court should look to “the factual matters that make up the gist of the complaint,
without regard to the form of action.” Id. (cleaned up). “This should be done pragmatically, giving
10
weight to such considerations as whether the facts are related in time, space, origin, or motivation,
whether they form a convenient trial unit, and whether their treatment as a trial unit conforms to
the parties’ expectations or business understanding or usage.” Id. (cleaned up).
Kassab cites to two pieces of evidence to show “the factual basis of Pohl’sk claims or even
potential claims in the Federal Court Case.” Motion at 14. First, he citesl to Pohl’s Federal
Counterclaim filed in that action. See id. at 13–14 (citing to Pohl’s Federacl Counterclaim, attached
as Exhibit 2 to the Motion). Second, he cites a June 2018 affidavit sfrom Pohl. See id. at 14–15
(citing to Exhibit 1 to the Motion). Neither is sufficient to satsisfy Kassab’s summary judgment
burden.
First, contrary to what Kassab’s misleading citations indicate, the factual basis of Pohl’s
Federal Counterclaim does not overlap at all with the factual bases of this lawsuit. See generally
Pohl’s Federal Counterclaim, attached as Exhaibit 2 to the Motion. To disguise this fact, Kassab
impermissibly focuses on the “form of action,” noting that Pohl “alleged theft” in the
Counterclaim. See Motion at 14. Heowever, the factual basis for that claim in the Federal Court
Case focuses entirely on impropefr billing and charging of expenses by Precision, not the theft of
personal property at issue in ythis lawsuit. Compare Pohl’s Federal Counterclaim, at 2–5, attached
as Exhibit 2 to the MoCtion (discussing conversion of “funds”), with Amended Petition ¶¶ 20–26,
36–38 (discussing the conversion of Pohl’s “confidential information and property”).
Kassabf’fs citation to Pohl’s Federal Counterclaim does not show that the factual bases of
the two aUctions overlap or are the same; it instead demonstrates that the allegations before the
federal court were entirely separate from the allegations in this lawsuit. See Citizens Ins. Co. of
Am. v. Daccach, 217 S.W.3d 430, 449 (Tex. 2007) (discussing how courts look to the “gist of the
complaint”). Pohl’s claims do not arise out of the alleged fraudulent billing practices of entities
11
or individuals in the Federal Court Action. See generally Amended Petition. Pohl’s claims against
Kassab in this lawsuit arise out of the conversion and theft of personal property. See id.
Second, Kassab’s other piece of evidence is Pohl’s June 2018 affidavit filed in response to
a grievance complaint initiated by Kassab against Pohl. See Motion at 14–15 (citking to Exhibit 1
to the Motion). Kassab’s use of this affidavit is misleading because the affidlavit reflects Pohl’s
knowledge after the conclusion of the Federal Court Case. Nor does thce affidavit establish that
the basis of the two actions was the same. s
Kassab triumphantly notes that the affidavit alleges that sFavre (who was not a party to the
Federal Court Case) “appears [to have] eventually sold those items and the information therein to
[Kassab].” See Motion at 15 (quoting Exhibit 1 to the Motion) (alterations from Motion). This
allegation does not establish that Pohl could have brought his current claims in the Federal Court
Case. Pohl’s statement in June 2018—over aa year after the judgment in the Federal Court
Case—about what he believed occurred does not show that the conversion claim in this lawsuit
could have been brought years prior. e In fact, the testimony makes perfect sense, as Pohl filed this
lawsuit just months later, in Augufst 2018.29 Furthermore, even if Pohl did have this knowledge of
prior to the judgment in the Fyederal Court Case, that does not change the fact that the subject matter
of the Federal Court CaCse differs from the factual basis of this lawsuit. See Barr v. Resolution Tr.
Corp. ex rel. Sunbelt Fed. Sav., 837 S.W.2d 627, 631 (Tex. 1992) (“A subsequent suit will be
barred if it arifs f es out of the same subject matter of a previous suit and which through the
exercise oUf diligence, could have been litigated in a prior suit.” (emphasis added)).
Kassab was not a party to the Federal Court Case, the Settlement Agreement or the
judgment. Ignoring the applicable Texas legal standard, Kassab simply asserts that he was in
29 See generally Pohl’s Original Petition, filed August 28, 2018.
12
privity with Precision. Assertions without evidence do not satisfy Kassab’s summary judgment
burden to establish each essential element of res judicata, and his argument fails. Kassab also fails
to demonstrate that the gist of the Federal Court Case overlaps with the present lawsuit, which is
also fatal to Kassab’s res judicata defense. Summary judgment is not available. k
C. The Attorney-Immunity Doctrine Does Not Apply. C l
Kassab contrives an argument that, as an attorney, he is immcune from liability for
converting the property of others and misappropriating trade secretss because after his wrongful
acquisition of property, he used that stolen information for the “sacquisition of clients and filing of
lawsuits.” See Motion at 20. Texas does not recognize any application of the attorney-immunity
doctrine outside of an attorney–client relationship, and Kassab’s wrongful conduct was not the
type of conduct an attorney uniquely engages in to discharge duties to a client. Kassab’s attorney-
immunity doctrine defense fails. a
The Texas Supreme Court has held that two inquiries are relevant to an attorney-immunity
defense: “the type of conduct at issuee and the existence of an attorney–client relationship at the
time.” Youngkin v. Hines, 546 Sf.W.3d 675, 683 (Tex. 2018). The claims against Kassab do not
fall within the attorney-immyunity doctrine because the conduct at issue does not qualify as “the
kind of conduct in whCich an attorney engages when discharging his duties to his client.” Canty
Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015). Additionally, Kassab has not established
the existence offf an attorney–client relationship at the time of his wrongful conduct.
KUassab purchased the stolen information and then used it to solicit and advertise to Pohl’s
clients/prospective clients. See Motion at 18–19 (discussing what Kassab contends is the “basis
for Pohl’s lawsuit”). Kassab’s knowing purchase of stolen property prior to his representation of
a client is neither within the scope of his representation of a client nor is it an activity undertaken
13
in a “uniquely lawyerly capacity.” See Landry’s, 2021 WL 2021130, at *3. The use of the
information by Kassab to solicit and advertise to obtain clients is not within the scope of client
representation, because this conduct necessarily precedes the “meeting of the minds” between a
potential client and attorney necessary to form an attorney–client relationship. Seke Tanox, Inc. v.
Akin, Gump, Strauss, Hauer & Feld, L.L.P., 105 S.W.3d 244, 254–55 (Tex. Aplp.—Houston [14th
Dist.] 2003, pet. denied). c
Kassab’s reliance on the First Court of Appeal’s opinion (in wshich that court affirmed this
Court’s denial of his TCPA Motion) is misplaced. Kassab suggessts that the court’s conclusion that
his conduct “qualifies as statements or conduct that arose out of a commercial transaction
involving the type of legal services Kassab provides” demonstrates that his conduct is of the “kind”
that attorneys provide and is thus protected by the attorney-immunity doctrine. See Motion at 19–
20 (discussing Kassab v. Pohl, 612 S.W.3d 5a71, 578 (Tex. App.—Houston [1st Dist.] 2020, pet.
denied)). Kassab’s argument conflates the appellate court’s discussion of the scope of a
commercial transaction with the scoepe of Kassab’s duties to a client. The fact that Kassab’s
conduct was part of a commerciafl transaction does not mean that it was both “within the scope of
client representation” and wyas “not foreign to the duties of a lawyer.” Youngkin, 546 S.W.3d at
682. C
Kassab also failed to establish or provide any evidence of “the existence of an attorney–
client relationsfhfip at the time” of his wrongful conduct. Youngkin, 546 S.W.3d at 683. Kassab
attempts Uto obfuscate his inability to provide evidence of this essential fact by discussing how the
attorney-immunity doctrine can apply “prior to any litigation.” See Motion at 19. While the
doctrine can apply prior to litigation, that is not relevant. Pohl asserts claims for conduct, not just
before litigation, but before Kassab had a single client with whom he could have the requisite
14
attorney–client relationship. See, e.g., Amended Petition ¶ 29 (discussing how Kassab used “the
stolen confidential information and property” to subsequentially solicit “clients/prospective clients
to act as plaintiffs”); see also Tanox, 105 S.W.3d at 254–55 (noting how attorney–client
relationship cannot be formed prior to a “meeting of the minds”). k
In sum, Kassab cannot show that his wrongful actions were “within lthe scope of client
representation” and were “not foreign to the duties of a lawyer.” Youngckin, 546 S.W.3d at 682.
In other words, Kassab is entitled to immunity only if he can establishs as a matter of law that when
he engaged in his alleged wrongful acts, he was acting nots only within the scope of client
representation, but that there was something “particular to ‘the office, professional training, skill,
and authority of an attorney’ about” his alleged wrongful conduct. See Landry’s, Inc. v. Animal
Legal Def. Fund, --- S.W.3d ---, 19-0036, 2021 WL 2021130, at *3, *8 (Tex. May 21, 2021)
(citation omitted). Kassab has not shown thisa. See Motion at 17–20.
Because Kassab did not provide evidence of the existence of an attorney–client relationship
at the time of his wrongful actiones and that those actions were within the scope of his
representation, his request for sufmmary judgment on the attorney-immunity doctrine must be
denied. The fact that his wryongful conduct of purchasing stolen information was not the type of
conduct undertaken in Ca “uniquely lawyerly capacity” only further supports this conclusion.
III. CONCLUSION
For thef fforegoing reasons, Plaintiffs Michael Pohl and Law Offices of Michael A. Pohl
respectfuUlly request that Kassab’s Motion be in all respects denied.
15
Dated: July 26, 2021 Respectfully submitted,
REYNOLDS FRIZZELL LLP
By: /s/ Jean C. Frizzell
Jean C. Frizzell
State Bar No. 07484650 k
1100 Louisiana St., Suite 3500 e
Houston, Texas 77002 l
Tel. 713.485.7200
Fax 713.485.7250 c
jfrizzell@reynoldsfrizzell.rcom
Attorney for PlaintifDfs Michael Pohl
and Law Office of Michael A. Pohl, PLLC
CERTIFICATE OF SERrVICE
I hereby certify that a true and correct copy of this document was served on all counsel of
record pursuant to the Texas Rules of Civil Procedure on this 26th day of July, 2021.
M /s/ Jean C. Frizzell
 Jean C. Frizzell
16"