filing_id,date,doc_type,party,description,doc_type_detail,procedural_posture,chain,outcome,phase,filename,relief_requested,full_text
38,2022-09-15,RSP,Pohl,Pohl’s response to MTA,"Plaintiffs' Response to the Kassab Defendants' Motion to Abate Trial Setting — opposes abatement of four-year-old case on eve of preferential trial setting, arguing future damages do not justify abatement and unlawful acts defense has been preempted","Response filed September 15, 2022 by Jean C. Frizzell of Reynolds Frizzell LLP opposing Kassab's motion to abate the trial setting in a four-year-old case with a preferential trial setting. Incorporates by reference Pohl's September 12, 2022 responses to defendants' summary judgment motions.",MTA-1,N/A,Phase 3,2022-09-15_RSP_Pohl-Response-to-Kassab-MTA-Trial_FILED.pdf,Deny Kassab's Motion to Abate Trial Setting and allow the case to proceed to trial during its current preferential trial setting,"9/15/2022 5:08 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 68313271
By: Deandra Mosley
Filed: 9/15/2022 5:08 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL AND LAW OFFICE § IN THE DISTRICT COURT OF
OF MICHAEL A. POHL, PLLC, §
Plaintiffs, §
v. § k
§ e
SCOTT FAVRE and SCOTT M. FAVRE PA, § C l
LLC; PRECISION MARKETING GROUP, § 189TH JUDICIAL DISTRICT
LLC; LANCE CHRISTOPHER KASSAB and § c
LANCE CHRISTOPHER KASSAB, § r
P.C. d/b/a THE KASSAB LAW FIRM; TINA §
NICHOLSON and BAKER NICHOLSON, LLP §
d/b/a BAKER NICHOLSON LAW FIRM; and § s
DOUGLAS MONTAGUE III and MONTAGUE §
PITTMAN & VARNADO, P.A., § g
Defendants. § r HARRIS COUNTY, TEXAS
PLAINTIFFS’ RESPONSE TO THE KASSAB DEFENDANTS’
MOTION TO ABATEy TRIAL SETTING
Plaintiffs Michael Pohl and Law Officaes of Michael A. Pohl (collectively, “Pohl”) file this
this response to Defendants Lance Christopher Kassab and Lance Christopher Kassab, P.C.’s
(collectively, “Kassab”) Motion to Abeate Trial Setting (the “Motion to Abate”). Pohl requests that
the Court deny Kassab’s Motion fto Abate and allow this four-year-old case to be tried during its
current preferential trial settiyng—a trial setting that Kassab appears to be trying to avoid.
Kassab argues Cthat this case should be abated for two reasons: (1) Pohl is still incurring
damages; and (2) the outcome of a separate lawsuit—the Cheatham case—will impact Kassab’s
illegality (unlafwfful acts doctrine) defense. Neither argument has merit. First, the existence of
future daUmages does not justify abatement. For Pohl to recover future damages, he must satisfy
the ordinary standard of showing to the jury that he will sustain those damages with reasonable
probability. Second, Kassab’s unlawful acts defense has been preempted and does not apply—a
defense Kassab acknowledged in another case is “no longer good law.”
I. BACKGROUND1
Kassab’s campaign of lawsuits and bar grievances against Pohl can only be described as a
failure. Kassab facilitated the filing of seven separate grievances with the Texas State Bar and
four lawsuits—all based on Kassab’s theory that Pohl engaged in alleged barrkatrous conduct.
Every grievance failed, often with a finding that Pohl’s alleged conduct ldid not constitute
professional misconduct or a violation of the Texas Disciplinary Rules ocf Professional Conduct.
Two of the lawsuits resulted in a final judgment on the merits in favosr of Pohl. In a third lawsuit,
Pohl settled the lawsuit—not for the “substantial sum of money” alleged by Kassab—but instead
for an amount less than the cost of defense. It is the fourth case, the Cheatham case, that Kassab’s
Motion to Abate is concerned with.
It is worth noting that although the Cheatham case is pending, the allegations asserted in
that case are without merit. Like Kassab’s recycled barratry allegations in this lawsuit, many of
the allegations of supposed barratry by Pohl in Cheatham were the subject of a grievance that
Kassab helped file. The Office of ethe Chief Disciplinary Counsel for the State Bar of Texas
dismissed the grievance after it hafd “examined the Grievance and determined that the information
alleged does not demonstrayte Professional Misconduct or a Disability.”2 Kassab appealed the
dismissal of the CheathCam grievance, and The Board of Disciplinary Appeals (which is appointed
by the Texas Supreame Court) determined “that the conduct you described in the grievance does
not violate the Tfexas Disciplinary Rules of Professional Conduct.”3
WUhen the Office of the Chief Disciplinary Counsel found that allegations involved in the
Cheatham case did not “demonstrate Professional Misconduct,” the Cheatham case was on appeal
1 To avoid duplicative recitations of the factual background of this case, to the extent necessary, Pohl refers the Court
to the factual background included in his September 12, 2022 responses to Defendants’ summary judgment motions.
2 See Feb. 24, 2020 Letter from State Bar of Texas: Office of the Chief Disciplinary Counsel, attached as Exhibit 1.
3 See May 14, 2020 Letter from The Board of Disciplinary Appeals, attached as Exhibit 2.
following a final judgment in favor of Pohl.4 Recently, the court of appeals reversed the trial court,
not because it found that barratry occurred, but because it believed the trial court erred in granting
summary judgment on the basis of limitations and whether the barratry statute was impermissibly
applied extraterritorially. See Cheatham, 2022 WL 3720139, at *9–10. Pohl is coknfident that this
case—which involves “[t]wo sets of wrongful-death claimants” out of the “l10,000 or more of
Pohl’s clients/prospective clients” whose information defendants cmisappropriated—will
ultimately be resolved in Pohl’s favor. Id. at *1; Pohl’s First Amendesd Petition ¶ 21. Regardless,
the outcome of the Cheatham case is not relevant to Pohl’s claimss or entitlement to damages. The
relevance of that case is that the fees and expenses Pohl incurs in defending it are a component of
Pohl’s actual damages in this lawsuit.
II. DISyCUSSION
Kassab presents two justifications for why abatement is necessary. First, he suggests that
the fact that Pohl may continue to suffer damages in connection with defending the Cheatham case
means the Court should wait to resolvee Pohl’s claims. Second, Kassab argues that the Cheatham
case is relevant to his “illegality”f defense. Neither argument has merit. Future damages are an
entirely normal occurrence thyat does not justify abatement of a case. Kassab’s affirmative defenses
are either preempted orC have little relevance. Regardless, they do not justify Kassab’s request for
abatement on the evae of trial.
A. The fpotential existence of future damages does not support abatement.
As the Court is surely familiar with, cases frequently arise and are tried despite the fact that
a party may not have suffered the full extent of the damages they will likely incur. In fact, Texas
4 See Cheatham v. Pohl, No. 01-20-00046-CV, 2022 WL 3720139, at *4 (Tex. App.—Houston [1st Dist.] Aug. 30,
2022, no pet. h.) (noting the trial court entered a “final and appealable” order in Pohl’s favor); see also Notices of
Appeal filed on Jan. 15 & 17, 2022 in Cause No. 2017-41110, Mark K Cheatham, Sr., et al, v. Michael A. Pohl, et al.,
in the 55th Judicial District Court of Harris County, Texas, attached as Exhibit 3.
law often requires an injured party to bring their claims even when “all resulting damages have
not yet occurred.” See Schlumberger Tech. Corp. v. Pasko, 544 S.W.3d 830, 834 (Tex. 2018)
(citation omitted) (discussing accrual of claims in the context of a statute of limitations). If the
fact that a party will continue to suffer damages required abating a case, there wokuld not be trials
in cases involving damages for lost profits, damages for loss of earning capaclity, or damages for
future medical expenses. Those cases go to trial, and the result should bec no different here.
The concept of future, and thus necessarily uncertain, damagess is not novel. In fact, there
is a standard for how a jury can analyze these types of damagess. See, e.g., GTE Mobilnet of S.
Tex. Ltd. P’ship v. Pascouet, 61 S.W.3d 599, 617 (Tex. App.—Houston [14th Dist.] 2001, pet.
denied) (discussing how a jury has discretion to award future damages that a party “in reasonable
probability will sustain in the future”). Given the existence of this standard, the fact that a case
involves future damages that are uncertain is naot sufficient to show that abatement is proper.
Kassab’s primary case to support his theory that Pohl’s future damages justify an abatement
is In re Tex. Collegiate Baseball Leageue, Ltd., 367 S.W.3d 462 (Tex. App.—Fort Worth 2012, no
pet.). See Motion to Abate, at f3–4 (citing Collegiate Baseball League). However, the facts
underlying that case are entiyrely dissimilar to those of this case, and the fact that abatement was
proper in that case doeCs not provide any useful guidance in this case.
Collegiate Baseball League involved a lawyer who was sued by two clients over an alleged
settlement agrefefment. 367 S.W.3d 462, 464 (Tex. App.—Fort Worth 2012, no pet.). The lawyer
asserted Ua counterclaim for recovery of his legal fees, and his clients subsequently asserted
malpractice claims against him based on three separate lawsuits that were still pending. Id. The
issue before the appellate court was over whether abatement or severance of the malpractice claims
was proper, and whether the attorneys’ fees claim should also be subject to any abatement or
severance. Id. at 465.
To understand the court’s decision in Collegiate Baseball League, it is important to know
that the parties did not dispute that the malpractice claims were premature. k Id. The claim
for fees brought by the lawyer involved fees he charged in connection withl the three pending
cases—the same three cases that were at issue in the clients’ malpractice cclaims against the lawyer.
Id. at 465–66. Given this, the court found that “[s]everance or sepsarate trials are therefore not
appropriate because the fee claim and the malpractice claims insvolve the same facts and issues.”
Id. at 467. The court also found abatement was appropriate, because severing the fees claim could
cause certain parties “to simultaneously take inconsistent litigation positions.” Id. at 467. It is in
this context that the court notes that “the malpractice allegations and damage theories will remain
fluid until the [other] litigations conclude.” Ida.
The issues present in the Collegiate Baseball League case are not analogous to those before
the Court. The Court is not faced wieth a situation where severance or abatement is required, and
it then must decide the scope of thfe severance or abatement. Nor does the Cheatham case and this
lawsuit involve the same facyts and issues. The shared issue is the far more common occurrence
that the full extent of PCohl’s damages has not been incurred at this time. The Court should deny
Kassab’s Motion to Abate, as the existence of future damages does not justify abatement.
B. Kasfsfab’s defense has been preempted and does not entitle him to abatement.
KUassab’s argues that under his “illegality” (unlawful acts doctrine) defense, “[i]f the
Cheatham plaintiffs establish these barratry claims against Pohl, then Pohl cannot be permitted to
recover any damages arising from his unlawful conduct.” Motion to Abate at 4.5 This is not
5 Kassab also mentions his “unclean hands” defense once, without any explanation. Motion to Abate at 2. He simply
states that the outcome of the Cheatham case will establish his “unclean hands” defense and as a result, “Pohl would
correct for multiple reasons.6 First, Kassab’s defense is not valid, as it was preempted years ago
by Texas’s proportionate responsibility statute. Second, even if the unlawful acts doctrine were
available as a defense, Kassab has not shown, or even alleged, how Pohl’s damages or injury in
this lawsuit were proximately caused by Pohl’s alleged unlawful conduct. Regkardless of any
unproven barratrous conduct, Pohl is entitled to recover damages that resultedl from defendants’
conversion and misappropriation of Pohl’s confidential information and fciles.
First, Kassab failed to disclose on-point authority from the Tsexas Supreme Court stating
that Kassab’s defense has been statutorily preempted. The sole scase Kassab cites for his unlawful
acts or illegality defense is Andrew Shebay & Co., P.L.L.C. v. Bishop, 429 S.W.3d 644 (Tex.
App.—Houston [1st Dist.] 2013, pet. denied). Kassab’s “illegality” defense is also known as the
“unlawful acts doctrine.”7 However, after the court’s ruling in Bishop, the Texas Supreme Court
ruled that “[t]he plain language of section 33.a003 clearly indicates that the common law unlawful
acts doctrine is no longer a viable defense.” Dugger, 408 S.W.3d at 832.
Kassab—and lead counsel fore the Kassab law firm, David Kassab—should be aware that
Kassab’s asserted defense is no flonger viable, as demonstrated by the following argument they
made in a different case: y
be entitled to no damiages from Kassab.” Id. While the lack of explanation or argument from Kassab makes it
unnecessary to address this issue more fully, it is worth pointing out that “unclean hands” is a defense to equitable
relief that applies fwhen a party engaged in wrongful conduct that harmed the person raising the unclean hands defense.
See In re Nolle, 265 S.W.3d 487, 494 (Tex. App.—Houston [1st Dist.] 2008, no pet.). Damages are not equitable
relief, and Kassab has not alleged that Pohl’s alleged conduct in the Cheatham case has harmed him. Thus, Kassab’s
“unclean hands” defense is not applicable and cannot support abatement of this case.
6 Kassab also does not explain how the outcome, as opposed to the facts, of the Cheatham case will impact this case.
It is not clear how any outcome in that case, which involves different parties, could have a preclusive effect in this
lawsuit. Furthermore, Kassab does not explain what further factual development will occur in the Cheatham case that
is necessary or impactful to the issues in this case.
7 Compare Dugger v. Arredondo, 408 S.W.3d 825, 829 (Tex. 2013) (stating that “this Court recognized the common
law unlawful acts doctrine as barring a plaintiff from recovering damages if it could be shown that, at the time of
injury, the plaintiff was engaged in an illegal act that contributed to the injury”), with Bishop, 429 S.W.3d at 648–49
(describing the defense, cited by Kassab, as providing that if “at the time of the plaintiff’s injury, the plaintiff was
engaged in an illegal act, and that act contributed to the injury, he may not recover”).
[T]he Texas Supreme Court has reiterated that “the comparative responsibility
scheme under Chapter 33 of the Texas Civil Practice and Remedies Code abrogated
the unlawful acts doctrine.” Boerjan v. Rodriguez, 2014 Tex. LEXIS 531 at *7
(Tex. 2014)(citing Dugger v. Arredondo, 408 S.W.3d 825 (Tex. 2013)). Thus, the
illegal acts doctrine may not be used as a ground to support summary judgment
even if it is recast as a public policy argument. Id. (“Applying Dugger to this case,
the unlawful acts doctrine cannot provide the basis for summary judgmentk.”).8
Kassab was correct then. The unlawful acts doctrine is no longer a valid defenlse.
Second, even if Kassab’s use of the unlawful acts doctrine werec not preempted, Kassab
would still have to show that Pohl’s alleged barratry was “a prosximate cause of the injury
complained of in order to bar [Pohl’s] recovery.” See Arredondo v. Dugger, 347 S.W.3d 757,
761–62 (Tex. App.—Dallas 2011), aff’d on other grounds, 408 S.W.3d 825 (Tex. 2013). Even if
Pohl had committed barratry, it did not proximately cause Pohl’s injuries giving rise to his claims
here—defendants’ conversion and misappropriation of Pohl’s confidential and proprietary
information. Kassab’s unsupported assertions that the outcome of the Cheatham case matters or
impacts Pohl’s claims in this case should be rejected, and the Court should deny the Motion to
Abate. e
fIII. CONCLUSION
Plaintiffs Michael Poyhl and Law Offices of Michael A. Pohl respectfully request that the
Court deny Kassab’s Motion to Abate for the reasons set forth herein. Regardless of whether Pohl
is likely to incur fuarther damages in connection with the Cheatham case, and regardless of the
outcome of thatf case, Pohl is entitled to a trial on the merits of his claims. Abatement is neither
required nor appropriate in these circumstances.
8 See Plaintiffs’ Objections and Response to Defendants’ Supplemental Motion for Summary Judgment, dated Sept.
15, 2014, in Cause No. 2011-75990, William Beatty, et al, v. Jimmy Van Knighton, II, et al., in the 133rd Judicial
District Court of Harris County, Texas (a copy of this briefing is attached as Exhibit 4).
Dated: September 15, 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 SERVICE
I hereby certify that a true and correct coply of this document was served on all counsel of
record pursuant to the Texas Rules of Civil Procedure on this 15th day of September, 2022.
o /s/ Jean C. Frizzell
e Jean C. Frizzell
Automated Certificate of eService
This automated certificate of service was created by the efiling system. The filer served this
document via email generated by the efiling system on the date and to the persons listed below.
The rules governing certificates of service have not changed. Filers must still provide a certificate
of service that complies with all applicable rules.
Suni Blue on behalf of Jean Frizzell e
Bar No. 7484650 C
sblue@reynoldsfrizzell.com t
Envelope ID: 68313271 r
Status as of 9/16/2022 8:04 AM CST
Case Contacts
Name BarNumber Email TimsestampSubmitted Status
Solace Southwick ssouthwick@reynoldsfrizzell.com 9/15/2022 5:08:42 PM SENT
Zandra EFoley zfoley@thompsoncoe.com r9/15/2022 5:08:42 PM SENT
Andrew Johnson ajohnson@thompsoncoe.com 9/15/2022 5:08:42 PM SENT
Andrew J. Sarne asarne@krcl.com  9/15/2022 5:08:42 PM SENT
Benjamin Ritz britz@thompsoncoe.com 9/15/2022 5:08:42 PM SENT
Kathryn Laflin KLaflin@KRCL.com l 9/15/2022 5:08:42 PM SENT
Murray JFogler mfogler@foglerbrar.coam 9/15/2022 5:08:42 PM SENT
Murray Fogler mfogler@fbfog.comM 9/15/2022 5:08:42 PM SENT
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 9/15/2022 5:08:42 PM SENT
Jason M.Ciofalo jason@ciofalolaw.com 9/15/2022 5:08:42 PM SENT
Todd Taylor ttaylor@jandeflaw.com 9/15/2022 5:08:42 PM SENT
Misty Davis mdavis@reynoldsfrizzell.com 9/15/2022 5:08:42 PM SENT
Harris Wells hwells@freynoldsfrizzell.com 9/15/2022 5:08:42 PM SENT
Todd Taylor ttaylor@jandflaw.com 9/15/2022 5:08:42 PM SENT
Lawyer Wade lawyerwade@hotmail.com 9/15/2022 5:08:42 PM SENT
Scott M.Favre oscott@favrepa.com 9/15/2022 5:08:42 PM SENT
Andrea Mendez Candrea@kassab.law 9/15/2022 5:08:42 PM SENT
Lance Kassab  lance@kassab.law 9/15/2022 5:08:42 PM SENT
David Kassab david@kassab.law 9/15/2022 5:08:42 PM SENT
Nicholas Pierce nicholas@kassab.law 9/15/2022 5:08:42 PM SENT
Dale Jefferson 10f607900 jefferson@mdjwlaw.com 9/15/2022 5:08:42 PM SENT
Raul Herman Suazo n24003021 suazo@mdjwlaw.com 9/15/2022 5:08:42 PM SENT
Kevin Graham CainU24012371 cain@mdjwlaw.com 9/15/2022 5:08:42 PM SENT
D Kassab david@kassab.law 9/15/2022 5:08:42 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 9/15/2022 5:08:42 PM SENT
L Kassab lance@kassab.law 9/15/2022 5:08:42 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 9/15/2022 5:08:42 PM SENT"
34,2022-09-12,RSP,Kassab,Kassab’s response to Pohl no-evid MSJ,"Kassab's Response to Pohl's Motion for Partial Traditional and No-Evidence Summary Judgment on Affirmative Defenses — opposes Pohl's attempt to eliminate Kassab's affirmative defenses of justification, unclean hands, illegality, unlawful acts, criminal acts, and in pari delicto, and challenges Pohl's global no-evidence motion as procedurally defective under Timpte Industries v. Gish","Phase 3 response brief filed September 12, 2022 (same day as Kassab's declaration, Filing #33). Responds to Pohl's motion seeking to eliminate Kassab's key affirmative defenses before trial. Incorporates by reference Kassab's own MSJs (June 8, 2021 and August 29, 2022, i.e. Filing #30), the Nicholson MSJ (August 19, 2022), and Nicholson's response to Pohl's motion (September 12, 2022). Addressed to Judge Scot 'Dolli' Dollinger.",MSJ-3,N/A,Phase 3,2022-09-12_RSP_Kassab-Response-to-Pohl-No-Evid-MSJ_FILED.pdf,"Deny Pohl's Motion for Partial Traditional and No-Evidence Summary Judgment on Affirmative Defenses; alternatively, grant continuance under Rule 166a(g) to allow completion of discovery on illegality defense; grant summary judgment against Plaintiffs ordering they take nothing on their claims against Kassab","9/12/2022 6:16 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 68179652
By: Deandra Mosley
Filed: 9/12/2022 6:16 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 DEFENDANTS’ RESPONSE TO PLAINTIFFSC’ MOTION FOR
PARTIAL TRADITIONAL AND NO-EVIDENCE SUMMARY JUDGMENT
TO THE HONORABLE JUDGE SCOT “DOLLI” DOLLINGEtR:
Defendants, Lance Christopher Kassab and Lance Christopher Kassab, P.C.
d/b/a/ The Kassab Law Firm (“Kassab”) file this, theeir Response to Plaintiffs’ Motion
for Partial Traditional and No-Evidence Suummary Judgment on Affirmative
Defenses,1 and would respectfully show the following.
INTRaODUCTION
Pohl2 committed illegal and unethical barratry and he wants Kassab, who
brought the barratry litigation aend grievances against Pohl on behalf of more than
four hundred (400) of Pohl’fs illegally solicited clients, to pay for Pohl’s barratry
defense costs. But Pohl’s claims are barred for several reasons, including based on
several affirmative defenses. Pohl has filed the instant Motion, seeking partial
traditional summiary judgment on the affirmative defenses of justification, unclean
hands, illegoality, and unlawful acts. However, Pohl has not negated those defenses
as a matter of law. As to the other defenses, Pohl attempts to dispose of them
through a global and conclusory no-evidence challenge, which is insufficient.
1 The self-serving title of the pleading is “Plaintiffs’ Motion for Partial Summary Judgment on
Defendants’ Affirmative Defenses that Seek to Relitigate Failed Barratry Claims Against Plaintiffs
and No-Evidence Motion on the Remaining Affirmative Defenses.”
2 This refers collectively to Plaintiffs Michael A. Pohl and Law Office of Michael A. Pohl, PLLC.
Regardless, Kassab can demonstrate, either here or in incorporated summary
judgment briefing, that each of the defenses applicable to him apply, and that
evidence supports each of them. Accordingly, the Motion should be in all things
denied. k
GENERAL OBJECTION C
Pohl inappropriately suggests that all barratry suits were resolved on the
merits. That is incorrect. One of the lawsuits – the Berry caise – was settled,3 which
suggests that the case had merit. Another lawsuit – the Cheatham case – was
initially dismissed on summary judgment but recently reversed because fact issues
existed on whether Pohl and his co-counsel committed barratry. See Cheatham v.
Pohl, No. 01-20-00046-CV, 2022 Tex. Appl. LEXIS 6528 (Tex. App.—Houston [1st
Dist.] Aug. 30, 2022, no pet. h.). TheM other two lawsuits – Brumfield and Gandy –
were dismissed, not on the merits, but on the affirmative defense of limitations. See
Brumfield v. Williamson, 634 iS.W.3d 170, 177 (Tex. App.—Houston [1st Dist.] 2021,
pet. denied) and Gandy v. Williamson, 634 S.W.3d 214 (Tex. App.—Houston [1st
Dist.] 2021, pet. denoied). “An affirmative defense presents a situation where a
plaintiff cannot relcover even if his claims are true because of some other fact that
the defendant ihas pled as a bar.” Man Engines & Components, Inc. v. Shows, 434
S.W.3d 132, 137 (Tex. 2014), In other words, none of the barratry suits have
been adjudicated on the merits, and neither has the issue of whether Pohl
committed barratry.
3 Exhibit 1, September 12, 2022 Declaration of Lance Kassab at ¶ 14.
Kassab incorporates and adopts by reference all evidence and argument in
his Traditional Motion for Summary Judgment filed on August 29, 2022. See TEX. R.
CIV. P. 58. Kassab also incorporate all evidence and argument in the Traditional
Motion for Summary Judgment filed by Tina Nicholson and Baker Nikcholson, LLP
(“Nicholson”) on August 19, 2022, as well as Nicholson’s responsCe to Pohl’s Motion
filed September 12, 2022, to the extent that response is applicable to Kassab. The
combined evidence and argument of all those documents diemonstrate conclusively
that Pohl committed barratry and unauthorized practice of law, which bars him
from recovery in this retaliatory lawsuit.
RESPONSE TO TRADITIONAL SUMMARY JUDGMENT
A. Justification is a valid laffirmative defense to Pohl’s
claims. a
Kassab has asserted the affirmative defense of justification.4 Pohl contends
that justification “is not a defenese to any of Pohl’s claims.”5 Of course, Pohl fails to
support this statement with fany authority. Rather, he contends that justification “is
an affirmative defense to a claim of tortious interference with contract.”6 But just
because the defense is commonly applied to one type of claim does not mean, as Pohl
contends, that iti is “not a recognized defense” to other types of claims, such as theft
of trade secorets, conversion or conspiracy.7 In fact, the defense of justification has
been applied outside the context of tortious interference to anti-trust claims. See
Money Masters, Inc. v. TRW, Inc., No. 05-98-02017-CV, 2003 Tex. App. LEXIS 622,
4 See Kassab’s Sixth Amended Answer, at ¶ 15(2).
5 Mot. at 2.
6 Mot. at 3.
7 Mot. at 3.
at *17 (Tex. App.—Dallas Jan. 23, 2003, pet. denied) (mem. op.). And, Texas courts
have considered the defense in relation to theft of trade secrets. See Lamont v.
Vaquillas Energy Lopeno, Ltd., 421 S.W.3d 198, 220 (Tex. App.—San Antonio 2013,
pet. denied) (determining whether evidence supported defense of jukstification to
claim that seismic map of a gas prospect constituted a tradCe secret and was
acquired through improper means). Accordingly, Pohl has failed to demonstrate
that the defense of justification is inapplicable as a matter iof law.
Pohl argues that even if the defense applies, Kassab and Nicholson cannot
show that “Pohl took any action against them or that involved them before they
committed the torts that form the basis of Pohl’s claim.”8 But Pohl misunderstands
the nature of the justification defense, andl the factual basis giving rise to it.
Justification can be based on Mthe exercise of either (1) the party’s own legal
rights or (2) the party’s good faith claim to a colorable right, even though the claim
ultimately proves to be mistakien. Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 211
(Tex. 1996). When the party conclusively establishes it had a legal right to engage
in the complained-of oconduct, the party's motive for engaging in that conduct is
irrelevant. Id. l
Here, Kiassab was justified in obtaining the information that Pohl contends is
his purported trade secrets. The information was obtained by Kassab as part of his
investigation and ultimate pursuit of barratry claims against Pohl on behalf of
hundreds of clients.9 Kassab concluded, based on discussions he had with and
8 Mot. at 3.
9 Exhibit 1, September 12, 2022 Declaration of Lance Kassab at ¶¶ 5-8.
documents obtained from Scott Favre, the owner of Precision Marketing, that the
information was owned by Precision Marketing, and not Pohl.10 In fact, Favre
testified that Precision Marketing owned the information, including client lists and
files the company acquired while soliciting clients,11 and shared wkith Kassab a
purchase agreement demonstrating that Favre was the owner oCf that information
through his purchase of Precision Marketing.12
Kassab had a legal right to acquire evidence to supiport the barratry claims
that would be made against Pohl on behalf of his clients without making himself
liable. See Taylor v. Tolbert, 644 S.W.3d 637, 647 (Tex. 2022) (“lawyers must be able
to pursue legal rights they deem necessary and proper for their clients without the
menace of civil liability looming over theml and influencing their actions.”). And in
carrying out that lawyerly duty, KasMsab had the right and obligation to investigate
the potential claims against Pohl or risk sanctions for not investigating the claims.
See TEX. R. CIV. P. 13. Kassaib was also justified in obtaining the information to
report Pohl to the State B
ar of Texas, which he did.13 See TEX. DISC. R. PROF’L COND.
8.03 (“a lawyer havinog knowledge that another lawyer has committed a violation of
applicable rules ofl professional conduct that raises a substantial question as to that
lawyer's honesity, trustworthiness or fitness as a lawyer in other respects, shall
inform the appropriate disciplinary authority.”); TEX. R. DISC. PROC. 17.09 (“No
lawsuit may be instituted against any Complainant or witness predicated upon the
10 Exhibit 1, September 12, 2022 Declaration of Lance Kassab at ¶¶ 8.
11 Exhibit 2, Affidavit of Scott Favre.
12 Exhibit 3, Purchase Agreement.
13 Exhibit 4, October 2018 Declaration of Lance Kassab, at p. 2; Exhibit 5, Grievance Complaint.
filing of a Grievance or participation in the attorney disciplinary and disability
system.”).
Under these circumstances, there are genuine issues of material fact as to
whether Kassab was justified in the actions that he took. k
B. Kassab may assert unclean hands as a defensCe because
Pohl seeks equitable relief. 
Kassab asserts unclean hands as a defense becauset Pohl seeks injunctive
relief and attorney’s fees as damages under the Texas Uniform Trade Secrets Act
(“TUTSA”). To the extent Pohl is permitted to seeke attorney’s fees as damages, his
unclean hands bar him from recovering under suuch an equitable exception.
Pohl’s summary judgment is based on the false premise that he “does not
seek equitable relief.”14 That contentioan is rebutted by Pohl’s own pleadings. Pohl
has pursued claims under TUTSA, which requires a person claiming ownership of a
trade secret to demonstrate “legeal, or equitable” title to the information. See TEX.
CIV. PRAC. & REM. CODE
§f 134A.002(3-a) (emphasis added). Additionally, “Pohl
seeks injunctive relief”15 and it is well-established that “[i]njunctive relief is an
equitable remedy.” Fetter v. Wells Fargo Bank Tex., N.A., 110 S.W.3d 683, 688
(Tex. App.—Houiston [14th Dist.] 2003, no pet.) (emphasis added). Moreover, Pohl’s
conclusion roequests “other and further or alternative relief (legal and equitable) to
which Pohl may be entitled,”16 for all of his causes of action. Because Pohl is seeking
equitable relief, he “must come into court with clean hands.” Fetter, 110 S.W.3d at
14 Mot. at 4.
15 See Pohl’s First Amended Petition, at ¶ 45.
16 Pohl’s First Amended Petition, at ¶ 50 (emphasis added).
688. Pohl’s contention that unclean hands is not a valid affirmative defense fails as
a matter of law.
C. Illegality.
1. Objection to Pohl’s lack of supporting evidencke.
Kassab objects to Pohl’s lack of evidence supporting his traCditional summary
judgment motion as to illegality. Pohl asserts that illegality does not apply because
it “is not part of a document,” and he “engaged in ‘illegal aicts” long before” Kassab
allegedly wronged Pohl.17 Pohl then incorrectly implies that his acts of barratry
“[have] largely been adjudicated” on the merits.18 That is untrue, as demonstrated
above. Pohl also asserts that his “claims do not seek to enforce any illegal contract
or other illegal action.”19 But Pohl prlovides no evidence in support of his
statements, and “motions and argumMents of counsel are not evidence.” Johnson v.
Scott, 113 S.W.3d 366, 373 (Tex. App.—Beaumont 2003, pet. denied). It is telling
that Pohl is unwilling to sweair to any of these facts in an affidavit. Kassab objects
to Pohl’s lack of summary judgment evidence.
2. Poohl has not negated the illegality defense.
Pohl arguesl that the illegality defense “is not a defense” to his claims, “and
even if it werei, it would not be available here.”20 Of course, Pohl does not cite any
case precluding the use of the illegality defense in claims arising from barratry.
This is because the defense has commonly been applied to bar claims stemming
17 Mot., at 4.
18 Mot., at 4-5.
19 Mot., at 5.
20 Mot., at 4.
from barratry. See Luong v. McAllister, No. 01-17-00198-CV, 2018 Tex. App. LEXIS
5998, at *9 (Tex. App.—Houston [1st Dist.] Aug. 2, 2018, pet. denied) (contract
between law firm and non-lawyer to solicit clients in exchange for share of
attorney’s fees was void due to illegality); Plumlee v. Paddock, 832 S.Wk.2d 757, 760
(Tex. App.—Fort Worth 1992, writ denied) (refusing equitable relCief where owner of
ambulance company had no basis to recover under fee-sharing agreement with
attorney without reliance on unlawful barratry agreemenit). And Pohl’s lawyers
are well aware of this doctrine. They recently used the illegality defense to
obtain summary judgment on a legal malpractice claim brought by an investor who
gave an attorney money in exchange for a share of attorneys’ fees from the BP
litigation. See Duncan Litig. Invs., LLC vl. Baker, Donelson, Bearman, Caldwell &
Berkowitz, No. 4:19-CV-3094, 2022 UM.S. Dist. LEXIS 147005, at *24-30 (S.D. Tex.
2022). Moreover, as demonstrated in the summary judgment briefing on file with
the Court, Pohl and his lawyeirs in the Mississippi Litigation also used the illegality
defense to Precisions Marketing’s claims against Pohl for failing to pay Precision
Marketing for referrinog thousands of BP cases.
The illegalitly defense applies here. To sustain his claims, Pohl must establish
a right to thei property he claims was misappropriated. The first element of a
TUTSA claim violation is that the plaintiff owned a trade secret. TEX. CIV. PRAC. &
REM. CODE §§ 134A.002(1), (3), (6), 134A.004(a). The statute defines “owner” to
mean “the person or entity in whom or in which rightful, legal, or equitable title to”
the trade secret. Id. at § § 134A.002(3-a). Because Pohl obtained the alleged trade
secret information illegally, through barratry and the unauthorized practice of law,
he necessarily does not have “rightful, legal, or equitable title” to the information.
Accordingly, Pohl’s illegal conduct necessarily negates his TUTSA claim.
Likewise, although common-law claims for conversion and conkspiracy are
preempted by TUTSA, Pohl would have to establish that hCe owned or had
possession of the property or entitlement to possession. See Freezia v. IS Storage
Venture, LLC, 474 S.W.3d 379, 386-87 (Tex. App.—Houstion [14th Dist.] 2015, no
pet.). Because Pohl’s claims rest on information acquired through illegal contracts,
Kassab can sustain an affirmative defense of illegality against Pohl.
Pohl provides a string cite of unrelated authority to improperly suggest that
illegality cannot be a defense in this casel. But none of the cases cited by Pohl are
relevant to the facts of this case or dMiscuss the interaction of the illegality defense
and the unlawful acts doctrine. See Phila. Indem. Ins. Co. v. White, 490 S.W.3d 468,
483 (Tex. 2016) (in unrelated ilandlord tenant case); Lewkowicz v. El Paso Apparel
Corp., 625 S.W.2d 301, 303 (Tex.1981) (holding that illegal actions concerning
leather production anod improper jailing in Mexico violate the public policy of Texas);
Niles v. Harris Colunty Fresh Water Supply Dist., 339 S.W.2d 562, 563 (Tex. Civ.
App.—Waco 19i60, writ ref’d) (affirming pleading of illegality was unnecessary over
water supply where the contract was illegal on its face); Reid v. Associated
Employers Lloyds, 164 S.W.2d 584, 585–586 (Tex. Civ. App.—Fort Worth 1942, writ
ref’d) (whether illegality must be affirmatively asserted as a defense to worker’s
compensation claim originating from unlading a keg of beer); Montgomery Ward &
Co. v. Lusk, 52 S.W.2d 1110 (Tex. Civ. App.—Waco 1932, writ ref’d) (whether
contract requiring work for more than 9 hours a day violated a statute); Texas & P.
Coal Co. v. Lawson, 89 Tex. 394, 34 S.W. 919, 921 (1896) (concerning the legality of
a contract for the sale of liquor). k
Accordingly, this Court should deny Pohl’s traditional moCtion for summary
judgment on illegality as unsupported by law or fact.
D. Unlawful acts, criminal acts, and in pari dielicto.
1. Objection to Pohl’s lack of supporting evidence.
Kassab again objects to Pohl’s lack of evidence supporting his traditional
motion for summary judgment as to unlawful acts, criminal acts or in pari delicto.
Pohl asserts that “criminal acts,” “unlawlful acts,” and “in pari delicto” does not
apply because “(1) Pohl’s actions hMave been largely adjudicated and were not
‘admittedly’ criminal or unlawful; and (2) even if a fact issue remained regarding
the legality of Pohl’s acts, anyi wrongful act is not sufficiently tied to Pohl’s claims
here to give rise to a defense.”21 But Pohl’s barratry and unauthorized practice of
law in other states hoave not been disposed of on the merits. Instead, Pohl’s sole
evidence supportilng his motion is that “Pohl can certainly demonstrate the
elements of eaich of his claims without being required to prove any illegal act.”22 And
then he doesn’t—he provides no evidence whatsoever. Pohl is not even willing to
swear under oath that he did not commit barratry. Accordingly, Kassab objects to
Pohl’s lack of summary judgment evidence.
21 Mot., at 5.
22 Mot., at 6.
10
2. Kassab established that Pohl’s unlawful acts,
criminal acts and the doctrine of in pari delicto
preclude Pohl’s claims in prior summary judgment
briefing, which is incorporated herein.
In his Traditional Motion for Summary Judgment filed on August 29, 2022,
Kassab demonstrated that Pohl’s unlawful acts, criminal acts and thee in pari delicto
doctrines preclude Pohl’s claims as a matter of law. Kassab incorporates that
argument and evidence as if set forth verbatim herein. Kassatb also incorporates the
argument and evidence relating to the unlawful acts doctrine (including illegal or
criminal acts or in pari delicto) set forth on pages e9-14 of Nicholson’s Response to
Plaintiffs’ Traditional and No-Evidence Motionu for Summary Judgment, filed on
September 12, 2022.
In short, the Unlawful Acts ruale provides that “[i]f, at the time of the
plaintiff’s injury, the plaintiff was engaged in an illegal act, and that act contributed
to the injury, he may not recoveer.” Andrew Shebay & Co., P.L.L.C. v. Bishop, 429
S.W.3d 644, 648–49 (Tex. fApp.—Houston [1st Dist.] 2013, pet. denied). The
summary judgment evidence on file with the Court demonstrates that Pohl violated
Texas rules and laws governing lawyers by illegally soliciting clients, splitting fees
with a non-lawiyer, and failing to protect confidential client information. Pohl’s
former clienots then sued him for his barratry, and Pohl now seeks to recover fees
from defending his barratry.23 In sum, if Pohl had not been violating the law and
disciplinary rules by procuring the purported trade secret information through
23 In addition, Kassab attaches the expert reports from Lillian Hardwick (Exhibit 6), Benjamin
Cooper (Exhibit 7), and Joseph F. Cleveland, Jr. (Exhibit 8), which detail and explain why the
evidence in the summary judgment record establishes that Pohl committed barratry and other
unlawful acts which preclude his claims.
11
illegal and unethical means, he would not have been sued for barratry. The very
purpose of the doctrine is to make sure “that [Pohl] should not even entertain the
hope of indemnity for the offense committed.” Houston Ice & Brewing Co. v. Sneed,
63 Tex. Civ. App. 17, 21, 132 S.W. 386, 388 (1910, writ dism’d) (holdinkg that one of
two parties involved in the illegal sale of alcohol could not Csue the other for
misrepresentation).
Moreover, the First Court of Appeals has opined thait Pohl’s acts, if true—and
they are true—are illegal and preclude summary judgment. In the Cheatham case,
the court of appeals concluded that the same Walker deposition testimony as here
on the same allegations24 are “some evidence” that “Pohl and [his co-counsel]
coordinated the barratry scheme” and “thlat Pohl directly funded, and his wife and
her company further funded, the solMicitation of prospective clients” and that “Pohl
directed case runners to contact and solicit potential clients on his behalf, including
offering money from Pohl’s fiirm and his wife’s company.” Cheatham, 2022 WL
3720139, at *8. This evidence defeated the summary judgment filed by Pohl’s co-
counsel in the Cheathoam case, and is certainly enough to defeat it here.
Accordinglyl, this court can apply these doctrines to deny recovery to Pohl for
his illegal actis, even if the court holds that one or more defendants have also
committed an unlawful act. See Dover v. Baker, Brown, Sharman & Parker, 859
S.W.2d 441, 443, 450-51 (Tex. App.—Houston [1st Dist.] 1993, no writ) (denying
recovery to plaintiff who sued his attorney for malpractice claiming he signed a
24 Kassab attached Walker’s testimony as exhibits in his prior summary judgment motion, which is
incorporated by reference herein.
12
false affidavit on the advice of his attorney who knew the affidavit was unlawful).
This doctrine is not an “excuse” but a bar to Pohl bringing any claims that stem
from his own illegal and wrongful actions.
For these reasons, and those stated in the summary judgment bkriefing before
the Court, summary judgment on the affirmative defenses of unlawCful acts, criminal
acts and the in pari delicto should be denied.
RESPONSE TO NO-EVIDENCE SUMMARY J DUiDGMENT
A. Pohl’s global and conclusory no-evidence challenge is
defective and should not be consideered.
The no-evidence summary judgment rule uexplicitly requires Pohl to “state the
elements as to which there is no evidence.” TEX. R. CIV. P. 166a(i) (emphasis
added). “The motion must be specific ina challenging the evidentiary support for an
element of a claim or defense; paragraph (i) does not authorize conclusory
motions or general no-evideence challenges to an opponent’s case.” Timpte
Indus. v. Gish, 286 S.W.3d 30f6, 310 (Tex. 2009) (emphasis added).
Pohl’s no-evidence challenge violates this rule. His entire no-evidence
argument is as follows:
In additioin to the affirmative defenses set forth above, Defendants
assert tihe following affirmative defenses, some of which were already
consiodered and rejected by this Court and the court of appeals during
consideration of the Defendant’s Motions to Dismiss under the Texas
Citizens Participation Act: 1) Statute of limitations; 2) Estoppel; 3)
Waiver; 4) Ratification; 5) Release; 6) Contribution; 7) Failure to
mitigate; 8) Lack of standing; 9) Accord and Satisfaction; 10).
Assumption of the Risk; 11) First Amendment; 12) Attorney Immunity;
13) Res Judicata; 14) Defect of Parties; 15) Abandonment; 16) Subject
of a Valid Contract. Pohl is entitled to summary judgment pursuant to
Rule 166a(i) because after an adequate time for discovery, the
13
Defendants have no evidence to support any of these affirmative
defenses.
This conclusory no-evidence challenge is insufficient as a matter of law. See Dean v.
Aurora Bank, F.S.B., No. 01-15-00827-CV, 2016 Tex. App. LEXIS 13472, at *9 (Tex.
App.—Houston [1st Dist.] Dec. 20, 2016, no pet.) (mem. op.) (e“A no-evidence
summary judgment is insufficient as a matter of law if the motion is conclusory or
fails to challenge a specific essential element of a cause of acttion for which the non-
movant would have the burden of proof at trial.”).
When a no-evidence motion for summary ejudgment, as here, does not
challenge specific elements, it must be treatued as a traditional motion under
166a(c), which imposes the burden on the movant. Weaver v. Highlands Ins. Co., 4
S.W.3d 826, 829 n.2 (Tex. App.—Houstaon [1st Dist.] 1999, no pet.). As he provides
no facts or law in support of his argument, Pohl has not met his burden to prove
“there is no genuine issue as to aeny material fact and the moving party is entitled to
judgment as a matter of la
wf.” TEX. R. CIV. P. 166a(c); Hillis v. McCall, 602 S.W.3d
436, 439-40 (Tex. 2020). With Pohl not having met his burden, “the burden does not
shift and [Kassab] need not respond or present any evidence.” Chavez v. Kansas
City S. Ry. Co., 5i20 S.W.3d 898, 900 (Tex. 2017). Accordingly, the Court should deny
Pohl’s purpoorted “no-evidence” motion.
B. The court should deny Pohl’s “no-evidence” motion
because Kassab can provide sufficient evidence and law
to support his affirmative defenses.
In his Traditional Motion for Summary Judgment filed June 8, 2021, Kassab
established, as a matter of law, the defenses of limitations, res judicata, and
14
attorney immunity. Kassab incorporates that motion and the evidence attached
thereto for all purposes herein. See TEX. R. CIV. P. 58. In the Traditional Motion for
Summary Judgment filed on August 29, 2022, Kassab established, as a matter of
law, the defenses of immunity pursuant to Texas Rule of Disciplinakry Procedure
17.09, the judicial proceedings privilege, attorney immunity, limCitations, and that
Pohl’s claims are barred by illegal and unlawful acts. In that motion, Kassab also
demonstrated that the alleged trade secret information is niot owned by Pohl, but by
Precision Marketing or Pohl’s former clients, which demonstrates the lack of
standing and defect of parties affirmative defenses. Kassab also incorporates that
motion and the evidence attached thereto. See TEX. R. CIV. P. 58.
In addition, Kassab incorporates bly reference and adopts the response to
Pohl’s no-evidence motion for sumMmary judgment filed by the Nicholson on
September 12, 2022 as to those defenses which apply equally to Kassab, including
attorney immunity, limitationis, waiver, ratification and failure to mitigate. See TEX.
R. CIV. P. 58.
In addition, aos to the affirmative defense of standing or capacity and
ownership of the lpurportedly confidential information, the recent depositions of
Ladner and Wialker demonstrate that the information was Precision Marketing’s
work product and owned by Precision Marketing, not Pohl. Ladner testified that
“client information” was owned by Precision Marketing.25 Likewise, Walker testified
that his company owned the client list and documents containing information about
25 Exhibit 9, August 29, 2022 Deposition of Kirk Ladner, at 44-45.
15
clients with potential cases.26 Walker agreed that the client information was
Precision Marketing’s “work product.”27 Thus, Pohl does not have standing or
capacity to sue Kassab, and there is a defect of parties to this litigation.
As to the defense of assumption of the risk, Pohl assumed thek risk that his
purported trade secret information would be stolen when he placCed it in the hands
of Walker, a known convicted felon. Specifically, Walker pled guilty to “one count of
federal program fraud and one count of conspiracy to icommit federal program
fraud” because he “fraudulently diverted and misused both federal grants and
money belonging to the State of Mississippi.”28 Pohl knew that Walker was a
convicted felon.29 Yet, Pohl trusted Walker with his purported trade secrets, without
requiring Walker to sign a confidentiality lagreement or non disclosure agreement.30
Pohl did not require these agreemeMnts because the alleged trade secrets are not
trade secrets at all and Pohl has no ownership in the documents that are the subject
of this lawsuit. Thus, Pohl aissumed the risk that Walker, a convicted felon who
“diverted and misused” property belonging to the others, would divert and misuse
Pohl’s purportedly coonfidential information, if in fact the alleged confidential
information were hlis.
The remiaining contract-related affirmative defenses of release, accord and
satisfaction, estoppel do not apply to Kassab. But to the extent that they do, Kassab
26 Exhibit 10, August 31, 2022 Deposition of Scott Walker, at 250-251.
27 Exhibit 10, August 31, 2022 Deposition of Scott Walker, at 251.
28 https://archives.fbi.gov/archives/jackson/press-releases/2014/ocean-springs-businessman-pleads-
guilty-to-federal-program-fraud. The Court is requested to take judicial notice of this official press
release from the Federal Bureau of Investigation.
29 Exhibit 11, December 10, 2021 Deposition of Michael Pohl, at 104-105, 159-160.
30 Exhibit 11, December 10, 2021 Deposition of Michael Pohl, at 22-23, 159-161.
16
incorporates the argument and evidence set forth by Nicholson in her September 12,
2022 response to Pohl’s purported no-evidence challenge.
ALTERNATIVE REQUEST FOR CONTINUANCE
Texas Rule of Civil Procedure 166a(g) allows a continuance of kthe summary
judgment hearing “to permit affidavits to be obtained or depositiCons to be taken or
discovery to be had or may make such other order as is just.” T iEX. R. CIV. P. 166a(g).
To the extent the evidence is insufficient to raise a fact iissue on the affirmative
defense of illegality, Kassab objects and requests a continuance on the no-evidence
motion because Pohl has unreasonably resisted Kassab’s request for discovery
relating to that defense.
Pohl’s resistance prompted Kassab lto file his Motion to Compel Removal of
Pohl’s Objections and Properly RespMond to Discovery on August 25, 2022. Kassab
incorporates that motion as if set forth verbatim herein and asks the Court to take
judicial notice of it. See TEX. Ri. CIV. P. 58. As set forth in the motion to compel, Pohl
has refused to answer relevant and material discovery relating to his involvement
in the illegal barratroy scheme, which is discovery going to the heart of Kassab’s
illegality defense. lSpecifically, that discovery will aid in establishing that all of
Pohl’s purportiedly trade secret information was derived through illegal or unethical
conduct, such as barratry and the unauthorized practice of law.
Kassab used diligence in attempting to obtain this relevant discovery. Kassab
served the discovery requests beginning in May of 2021.31 Pohl amended his
31 See Motion to Compel, at Exhibit 1.
17
discovery responses through October 2021.32 Kassab attempted to seek additional
information and clarify or elaborate on certain discovery requests in later sets of
discovery, served September 2021 and December 2021.33 Pohl responded to that
discovery into January 2022.34 Over the course of the following moknths, Kassab
reviewed the discovery requests and then attempted to confer wiCth Pohl about the
discovery deficiencies. But Pohl refused to amend his discovery and produce
responsive information,35 thus necessitating the motion to ciompel.
Pohl cannot simultaneously withhold relevant discovery concerning his
illegal acts while, at the same time, move for summary judgment on illegality. See
Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 145 (Tex. App.— Houston [14th
Dist.] 2000, pet. denied) (“A party should nlot be able to abuse the discovery process,
withhold key evidence from their oppMonents, and then use that lack of evidence to
win a judgment.”). Accordingly, a continuance of the summary judgment hearing
(and trial) should be granted iuntil after the motion to compel is heard and Pohl is
compelled to produce the improperly withheld information. See McInnis v. Mallia,
261 S.W.3d 197, 204 o(Tex. App.—Houston [14th Dist.] 2008, no pet.) (the fact that
movant “withheldl information in discovery” is a factor that weighed “in favor of”
permitting addiitional time for discovery); Tempay, Inc. v. TNT Concrete & Constr.,
Inc., 37 S.W.3d 517, 522-23 (Tex. App. – Austin 2001, pet. denied) (holding that the
trial court abused its discretion in determining that adequate time for discovery had
32 See Motion to Compel, at Exhibit 2 and 3.
33 See Motion to Compel, at Exhibit 4 and 5.
34 See Motion to Compel, at Exhibit 7.
35 See Motion to Compel, at Exhibit 9.
18
passed because movant successfully resisted nonmovant's attempts to obtain
discovery).
CONCLUSION & PRAYER
For the foregoing reasons, the Court should deny Plaintiffs’ Motikon for Partial
Traditional and No-Evidence Summary Judgment on AffirmatCive Defenses and
grant summary judgment against Plaintiffs, ordering that they take nothing on
their claims against Lance Christopher Kassab and The Kaissab Law Firm.
Respectfully submitted,
THE KASSAB LAW FIRM
__________________________
lDAVID ERIC KASSAB
a Texas State Bar No. 24071351
M david@kassab.law
 LANCE CHRISTOPHER KASSAB
Texas State Bar No. 00794070
e lance@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 DEFENDANTS
19
CERTIFICATE OF SERVICE
I certify that on this date, September 12, 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.
___________________C____
DAVID ERIC KASSAtB 
20
Automated Certificate of eService
This automated certificate of service was created by the efiling system. The filer served this
document via email generated by the efiling system on the date and to the persons listed below.
The rules governing certificates of service have not changed. Filers must still provide a certificate
of service that complies with all applicable rules.
David Kassab e
Bar No. 24071351 C
david@kassab.law t
Envelope ID: 68179652 r
Status as of 9/13/2022 8:03 AM CST
Case Contacts
Name BarNumber Email sTimestampSubmitted Status
Solace Southwick ssouthwick@reynoldsfrizzell.com 9/12/2022 6:16:47 PM SENT
Zandra EFoley zfoley@thompsoncoe.com r 9/12/2022 6:16:47 PM SENT
Andrew Johnson ajohnson@thompsoncoe.com 9/12/2022 6:16:47 PM SENT
Andrew J. Sarne asarne@krcl.com 9/12/2022 6:16:47 PM SENT
Benjamin Ritz britz@thompsoncoe.conm 9/12/2022 6:16:47 PM SENT
Kathryn Laflin KLaflin@KRCL.com 9/12/2022 6:16:47 PM SENT
Murray JFogler mfogler@foglerbrrar.com 9/12/2022 6:16:47 PM SENT
Murray Fogler mfogler@fbfog.com 9/12/2022 6:16:47 PM SENT
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 9/12/2022 6:16:47 PM SENT
Larry Newsom lnewsom@fkrcl.com 9/12/2022 6:16:47 PM SENT
Jason M.Ciofalo jason@ciofalolaw.com 9/12/2022 6:16:47 PM SENT
Chris C.Pappas cpappas@krcl.com 9/12/2022 6:16:47 PM SENT
Todd Taylor titaylor@jandflaw.com 9/12/2022 6:16:47 PM SENT
Harris Wells fhwells@reynoldsfrizzell.com 9/12/2022 6:16:47 PM SENT
Todd Taylor ttaylor@jandflaw.com 9/12/2022 6:16:47 PM SENT
Lawyer Wade y lawyerwade@hotmail.com 9/12/2022 6:16:47 PM SENT
Scott M.Favre scott@favrepa.com 9/12/2022 6:16:47 PM SENT
Andrea Mendez C andrea@kassab.law 9/12/2022 6:16:47 PM SENT
Lance Kassab  lance@kassab.law 9/12/2022 6:16:47 PM SENT
David Kassab a david@kassab.law 9/12/2022 6:16:47 PM SENT
Nicholas Pierce c nicholas@kassab.law 9/12/2022 6:16:47 PM SENT
Dale Jefferson f i 10607900 jefferson@mdjwlaw.com 9/12/2022 6:16:47 PM SENT
Raul Herman Suazo o 24003021 suazo@mdjwlaw.com 9/12/2022 6:16:47 PM SENT
Kevin Graham Cain 24012371 cain@mdjwlaw.com 9/12/2022 6:16:47 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 9/12/2022 6:16:47 PM SENT
L Kassab lance@kassab.law 9/12/2022 6:16:47 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 9/12/2022 6:16:47 PM SENT
Misty Davis mdavis@reynoldsfrizzell.com 9/12/2022 6:16:47 PM SENT
Non-Party Witness Billy Shepherd bshepherd@spcounsel.com 9/12/2022 6:16:47 PM SENT
Deidre Hicks GWS_GROUP@spcounsel.com 9/12/2022 6:16:47 PM SENT
E. MarieJamison jamison@wrightclosebarger.com 9/12/2022 6:16:47 PM SENT
Jessica Z.Barger barger@wrightclosebarger.com 9/12/2022 6:16:47 PM SENT
Katie Budinsky kbudinsky@krcl.com 9/12/2022 6:16:47 PM ERROR
D Kassab david@kassab.law 9/12/2022 6:16:47 PM SENT"
35,2022-09-12,RSP,Pohl,Pohl’s response to Kassab no-evid MSJ,"Plaintiffs' Response in Opposition to No-Evidence Motions for Summary Judgment Filed by Kassab and Nicholson Defendants — Pohl presents extensive evidence supporting all three claims (conspiracy, conversion, TUTSA) and rebuts defendants' challenges to ownership, protection, misappropriation, and damages elements","Response to no-evidence MSJs filed by Kassab and Nicholson defendants on August 29, 2022, in the third phase of litigation. Filed September 12, 2022 at 11:26 PM. Pohl incorporates by reference the discussion and evidence from his companion Response in Opposition to the Traditional Motions filed the same day. Filed by Jean C. Frizzell of Reynolds Frizzell LLP. Addressed to the 189th Judicial District Court of Harris County.",MSJ-2,N/A,Phase 3,2022-09-12_RSP_Pohl-Response-to-Kassab-No-Evid-MSJ_FILED.pdf,Deny the no-evidence motions for summary judgment filed by Kassab and Nicholson and allow all issues to be tried by a jury,"9/12/2022 11:26 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 68182775
By: Deandra Mosley
Filed: 9/12/2022 11:26 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 THE
NO EVIDENCE MOTIONS FOR SUMMARY JUDGMENT
FILED BY THE KASSAB DEFENDANTSl AND THE NICHOLSON DEFENDANTS
Plaintiffs Michael Pohl and Law OfMfice of Michael A. Pohl (collectively “Pohl”) respond
in opposition to the No Evidence Motions for Summary Judgment filed by Defendants Lance
Christopher Kassab and Lance Christopher Kassab, P.C., d/b/a The Kassab Law Firm (collectively
“Kassab”) and Tina Nicholson and Baker Nicholson, LLP d/b/a Baker Nicholson Law Firm
(collectively, “Nicholson”).
Given the overlapping issues in the multiple summary judgment motions before the Court,
Pohl also incorpcorates by reference the discussion and evidence included in his Response in
Opposition to the Traditional Motions for Summary Judgment Filed by the Kassab Defendants and
the Nicholson Defendants that is filed on the same day as this Response.
I. FACTUAL BACKGROUND
Pohl represented various persons and entities in claims arising from motor vehicle
accidents and the British Petroleum Deepwater Horizon oil spill.1 Pohl engaged Precision
Marketing Group, LLC (“Precision”) to provide public relations services, to gathker and preserve
evidence, and to screen and liaise with Pohl’s clients and prospective clients.2 l While working for
Pohl, Precision necessarily gained access to Pohl’s confidential and propcrietary information and
property, including trade secret materials.3 Scott Favre, individuaslly and/or through Scott M.
Favre PA, LLC (collectively “Favre”) is the managing member osf Precision.4 Favre took physical
copies of Pohl’s information, and possession of Pohl’s stolen computers and misappropriated
electronic data.5
In November 2016, Defendants Douglas Montague III, his law firm Montague Pittman &
Varnado, P.A. (collectively, “Montague”), Naicholson and Kassab arranged to purchase Pohl’s
stolen confidential information and property from Favre for $250,000, plus bonuses,6 taking
possession of at least some of the infoermation and property in December 2016.7 Kassab, Nicholson
and Montague highly valued Pofhl’s stolen and misappropriated confidential information and
property because, after purchyasing it, they intended to and did use it to contact and solicit Pohl’s
clients and prospectivCe clients.8 Defendants’ actions constitute conversion, violations of the
uniform trade secrets act (“TUTSA”), and conspiracy.
1 Sworn Declaration of Michael A. Pohl (the “Pohl Declaration”), ¶ 2, attached as Exhibit A.
2 Id. ¶ 9.
3 Id.
4 Id. ¶ 24.
5 Id. ¶¶ 24–25.
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, attached as Exhibit
Favre’s participation in the conspiracy to misappropriate and steal Pohl’s confidential
information and client communications violated the terms of a settlement agreement. That
confidential settlement agreement, executed in late April or early May 2017 (the “Settlement
Agreement”), resolved a lawsuit in federal court in Mississippi, styled No. 1:14-ckv-381-KS-JCG,
Scott Walker, et al. v. Jimmy Williamson, et al., In The United States Distrlict Court For The
Southern District of Mississippi, Southern Division (the “Federal Court Ccase”).9
Defendants’ efforts to monetize Pohl’s trade secrets through sassertions of barratry claims
has been nearly a complete failure. Defendants brought barratsry claims on behalf of more than
400 plaintiffs,10 and the claims of all but four plaintiffs have been finally resolved in Pohl’s favor.11
As to those four remaining plaintiffs, the viability of their claims remains in dispute.12 Kassab
asserted multiple grievances with the Texas State Bar,13 all of which have been rejected, many
with the finding that “the Board has determinaed that the conduct you described in the grievance
does not violate the Texas Disciplinary Rules of Professional Conduct.”14 Notwithstanding this
lack of success, Defendants continuee to make allegations regarding Pohl and seek to relitigate
irrelevant questions regarding Pohfl’s alleged conduct. The Court should reject Defendants’ efforts
to justify their theft of Pohl’sy trade secrets by reasserting their failed claims of barratry.
9 Pohl Declaration ¶ 26i, Ex. A.
10 See Petitions in four cases, attached as Exhs. 28-30; 32 to the Nicholson’s Traditional Motion for Summary
Judgment, attachefd as Exhibit C.
11 See Cause No. 2017–38294, Dezzie Brumfield d/b/a LAD Enterprises, et al v. Michael A. Pohl, et al, in the 189th
Judicial District Court of Harris County, Texas; No. 459,062-401, Alice Marie Gandy, et al v. Michael A. Pohl, et al.,
in the Probate Court No. 2 of Harris County, Texas; Cause No. 2017–37567, Mae Berry et al v. Michael A. Pohl, et
al, in the 113th Judicial District Court of Harris County, Texas; (showing the Brumfield, Gandy, and Berry cases are
final); see also Cheatham v. Pohl, No. 01-20-00046-CV, 2022 WL 3720139, at *1 (Tex. App.—Houston [1st Dist.]
Aug. 30, 2022, no pet. h.) (showing that claims of four plaintiffs remain live). Pohl requests that the Court take judicial
notice of these publicly available facts.
12 Cheatham v. Pohl, No. 01-20-00046-CV, 2022 WL 3720139, at *15 (Tex. App.—Houston [1st Dist.] Aug. 30,
2022, no pet. h.) (noting that “As to the barratry claim, we have concluded only that a fact issue continues to exist.
We take no position on the validity of the barratry claim against any of these parties.”).
13 See State Bar and Board of Disciplinary Appeals letters dismissing claims, attached as Exhibit D.
14 Id.
At core, Defendants’ challenges to the evidentiary basis for Pohl’s claims turn on two
fallacies that they have argued from the start. First, Defendants insist that Pohl did not own the
materials—including his own client agreements and client files—that they misappropriated. This
is clearly wrong and has been rejected by numerous courts in different jurisdictkions. See, e.g.,
Fred Siegel Co., L.P.A. v. Arter & Hadden, 1999-Ohio-260, 85 Ohio St. 3d 17l1, 182, 707 N.E.2d
853, 862 (discussing how law firm’s client list could constitute a trade seccret); Reeves v. Hanlon,
95 P.3d 513, 522 (Cal. 2004) (dealing with client data that constituteds trade secrets). Even giving
the argument that Pohl had no ownership interest in his client lsists, client agreements, and client
files the benefit of the doubt, at most the argument raises a disputed fact issue that cannot be
determined on a motion for summary judgment. Second, Defendants erroneously believe that
Pohl’s claims provide them an opportunity to reassert barratry claims that have failed in every
other forum. Those claims have no place herea and should be rejected.
II. ARGUMENT
Pohl has overwhelming prooef of each of the elements of his claims—far more than enough
to respond to Defendants’ no-evidfence challenges, as fully set forth below.
A. Pohl has ample evidyence of each element of conspiracy.
Pohl can readCily prove that Defendants, in combination with each other, sought to
accomplish the goals of conversion of Pohl’s property and misappropriation of Pohl’s trade secrets,
that they reachfefd a meeting of the minds, engaged in one or more unlawful overt acts, and that he
suffered dUamages as a result.
1. Pohl can prove that Defendants (a combination of two or more persons) acted in
combination to accomplish their goals of conversion and misappropriation,
reaching a meeting of the minds.
The evidentiary record of Defendants’ conspiracy is replete with emails establishing their
agreement to combine to acquire Pohl’s property and to use it for their own gaink in violation of
Pohl’s rights. Starting no later than September 2016, Kassab, Nicholson and lMontague engaged
in discussions with Scott Favre relating to a possible deal to bring barratcry claims against Pohl.15
The discussions between Montague and Kassab resulted in what Kasssab agreed could probably be
called a joint venture between the two of them.16 The purpose osf Montague’s joint venture was to
bring barratry claims against Pohl, a Texas lawyer, in Texas courts under the Texas barratry
statute.17
Kassab, Nicholson, and Montague also entered into a co-counsel agreement, the purpose
of which was to bring barratry claims in Texasa against Pohl.18 Kassab testified that this co-counsel
agreement was made in writing, but it has not yet been produced.19 However, Kassab has produced
contracts that he signed with Pohl’s feormer clients that show the co-counsel relationship between
Nicholson, Kassab, and Montagufe.20
Montague admits thyat he actually sent the information and materials that form the basis of
Pohl’s claims against thCem to Kassab in Texas.21 Montague states in his affidavit that he ‘informed
Kassab about this matter and sent him the PMG [Precision] documents owned by Favre that I
15 See Kassab Deposition at 27:4-13; 28:22-25, attached as Exhibit E; Montague Deposition at 72:4-15, attached as
Exhibit F; September 9, 2016 email from Montague, attached as Exhibit G (originally Ex. 2 to the Kassab Deposition);
see also Montague Deposition at 71:18-72:15 (stating that the email in Kassab Deposition Exhibit 2 “appears to be
something that I sent,” and not disputing its authenticity), Exhibit F.
16 See Kassab Deposition at 36:18-22, Ex. E.
17 See Montague Affidavit ¶ 7, Ex. H; Kassab Deposition at 53:13-15, Ex. E.
18 See Ex. F, Montague Deposition at 46:6-16; 49:1-15; Ex. I, Nicholson Deposition at 111:11-112:22.
19 See Ex. E, Kassab Deposition at 86:14-87:10.
20 See Ex. L.
21 See Montague Affidavit ¶ 7, Ex. H; Montague Deposition at 50:14-24, 53:19-54:6, Ex. F.
received.”22 Montague himself defines the “PMG [Precision] documents” in this context as
including “attorney-client contracts, communications, and lists of clients.”23 Nicholson herself
had an active role in attempting to ensure that the team received all of the client contracts.24
Montague took the lead in obtaining Pohl’s documents, including engagemkent agreements
between Pohl and his clients, which Montague helped facilitate the transfelr of to Kassab in
Texas:25 c
It is clear that Kassab and Montafgue were not satisfied with receiving Pohl’s engagement
agreements. They wanted to obtainc the names and the contact information for Pohl’s clients or
potential clients so that they coOuld solicit them to bring barratry claims against Mr. Pohl:26
22 Montague Affidavit ¶ 7, Ex. H (emphasis added).
23 Id. ¶ 6.
24 See Ex. M, Email dated November 22, 2016 from Nicholson to Kassab.
25 See Exhibit N, Dec. 7, 2016 email from Montague (originally used as Exhibit 11 to the Nicholson Deposition); see
also Exhibit O, Nov. 14, 2016 email from Montague (originally used as Exhibit 9 to the Nicholson Deposition)
(showing Montague instructed Favre to send documents to Kassab, a Texas lawyer); Exhibit F, Montague Deposition
at 89:1-10 (stating he recognized Nicholson Exhibit 9 and saying it was “what it appears to be, a request for [wiring]
instructions from Scott Favre.”); Exhibit E, Kassab Deposition at 138:5-9 (acknowledging that Nicholson Exhibit 11
appears to be an email from Montague to Kassab and other defendants and not disputing its authenticity).
26 See Exhibit P, Dec. 8, 2016 email from Montague (originally used as Exhibit 12 to the Nicholson Deposition); see
also Exhibit I, Nicholson Deposition at 162:5-164:15 (acknowledging that the email chain shown in Nicholson Exhibit
12 “was CC’ed to me” and not disputing its authenticity).
Kassab, Nicholson, and Montague were all active participants itn obtaining and processing
additional information to solicit Pohl’s clients or potential clients to bring additional claims in
Texas courts:27 e
When Montague realizeod that additional information was needed, Montague reached out to
Nicholson to obtain that additional converted and stolen information.28 Kassab was at all times
critical to the conspiracy, as he and his firm were the experts on claims of barratry in Texas.
27 See Exhibit Q, Dec. 8, 2016 email from Montague (originally used as Exhibit 13 to the Nicholson Deposition); see
also Exhibit F, Montague Deposition at 103:5-14 (acknowledging the email chain shown in Nicholson Exhibit 13
showed an email that appeared to be sent by Montague and not disputing its authenticity).
28 See Exhibit R, Feb. 15, 2017 email from Montague (originally used as Exhibit 14 to the Nicholson Deposition); see
also Exhibit F, Montague Deposition at 116:1-8 (acknowledging the email chain shown in Nicholson Exhibit 14 and
not disputing its authenticity).
Montague recognized Kassab’s experience and knowledge of civil barratry claims,29 and, as
Kassab points out on his website, a civil claim for barratry is “unique to Texas.”30
2. Pohl can prove that Defendants engaged in one or more overt unlawful acts in
furtherance of their conspiracy.
Defendants engaged in overt acts constituting both conversion and miseappropriation, and
Pohl’s evidence of each of those acts is set forth in the sections addressing them below.
3. Pohl can prove that he suffered damages as a result. r
Pohl has testified, as has his expert witnesses, about the eDxtensive damages arising from
the underlying torts—Defendants’ theft of trade secrets and csonversion.31 Those damages arose
directly from the actions of Defendants in converting anrd misappropriating Pohl’s trade secrets
and then attempting to monetize those secrets by contacting Pohl’s clients and former clients and
fomenting litigation against him. Pohl was alsol damaged by the loss of his property, and he is
entitled to recover the market value ofM the converted and misappropriated property and
information. There are multiple sources of evidence regarding the value of some or all of the
converted or misappropriated infor c mation.32 As these damages are derivative of the damages
suffered for the underlying torts, the evidence cited here supports damages in relation to those
torts, and Pohl incorporates his discussion and evidence in relation to those claims here. See infra
Parts II(B)(4) & II(C)(3).
29 See Exhibit G, Ex. 2 to the Kassab Deposition; Exhibit H, Montague Affidavit ¶ 7; Exhibit F, Montague Deposition
at 44:14-19.
30 See Barratry and Solicitation, Kassab Law Firm, https://texaslegalmalpractice.com/legal-malpractice/barratry-and-
solicitation/ (last visited Aug 7, 2022); see also Exhibit F, Montague Deposition at 49:9-18 (confirming that Montague
is not aware of any state, other than Texas, in which a civil claim for barratry exists).
31 See Report of John Zavitsanos on Fees, attached as Exhibit S; Pohl Declaration ¶¶ 27-28, Ex. A.
32 See Deposition of Scott Walker, at 328:10-16 (testifying about how he had heard Pohl’s client list was worth $6
million), attached as Exhibit V; Deposition of Kirk Ladner, at 314:10–315:18, 343:7-344:17 (recalling that he was
told that the boxes containing Pohl’s information were worth $6 million), attached as Exhibit W; Pohl Declaration ¶
28, Ex. A; see also 2016.11.10 Agreement Between Kassab, Montague, and Favre, attached as Exhibit EE; Montague
Deposition, at 79:11-82:21, Exhibit F (indicating that Kassab and Montague paid $250,000, plus agreed to pay
additional incentives, for access to Pohl’s information).
B. Pohl has ample evidence of each element of conversion
Conversion is the “unauthorized and wrongful assumption and exercise of dominion and
control over the personal property of another, to the exclusion of or inconsistent with the owner's
rights.” Waisath v. Lack's Stores, Inc., 474 S.W.2d 444, 447 (Tex. 1971). The elekments are: “(1)
the plaintiff owned, had legal possession of, or was entitled to possession of thle property; (2) the
defendant assumed and exercised dominion and control over the propcerty in an unlawful and
unauthorized manner, to the exclusion of and inconsistent with the splaintiff's rights; and (3) the
defendant refused the plaintiff’s demand for return of the propserty.” Akin v. Santa Clara Land
Co., Ltd., 34 S.W.3d 334, 344 (Tex.App.—San Antonio 2000, pet. denied); see also Hunt v.
Baldwin, 68 S.W.3d 117, 131 (Tex. App.—Houston [14th Dist.] 2001, no pet.).
1. Pohl’s evidence that he owned, had legal possession of, or was entitled to
possession of the property is more thaln sufficient.
Pohl testified that he owns his compMuters, property, attorney-client contracts, forms created
for his practice, data, photographs, client files, attorney work product and financial information
that was stolen from his office.33 It c is not disputed that the materials at issue included Pohl’s client
lists, client files, and thousands of contracts between Pohl and his clients.34 In addition to Pohl’s
own testimony, the persons to whom Defendants now trace their purported ownership have
testified that the client contracts and/or client lists belong to Pohl.35 In fact, Pohl’s client lists were
valuable to Defencdants because they belonged to Pohl, and Defendants believed they had value as
a means for convincing Pohl’s clients and former clients to bring barratry claims against Pohl.36
33 See Deposition of Michael A. Pohl, at 5:22-7:23, attached as Exhibit T.
34 See Deposition of Scott M. Favre, at 119:2-13, Exhibit U; Deposition of Lance Kassab, at 59:5-60:15, Exhibit E;
Affidavit of Douglas Montague III ¶¶ 6, 7, Exhibit H.
35 See Deposition of Scott Walker, at 283:17-21, 316:5-319:14, 327:14-329:23, attached as Exhibit V; Deposition of
Kirk Ladner, at 126:17–128:20, 161:19–163:20, 340:22–342:17, 350:1–351:21, 356:23–358:10, attached as Exhibit
W; Deposition of Steve Seymour, at 193:13-195:9, attached as Exhibit X.
36 See, e.g., Affidavit of Douglas Montague III ¶¶ 6-8, Ex. H.
The argument that Pohl did not own his own client list ignores completely the undisputed
fact that the list was a list of Pohl’s clients. Defendants’ insistence that Pohl did not own these
materials is simply an argument; their factual challenges to Pohl’s ownership are irrelevant and
should not be considered in disposing of the no-evidence motions for summary kjudgment. See
King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750 (Tex. 2003) (no-evidencel motion requires a
court to disregard all contrary evidence and inferences).37 But even cif it were relevant, the
immense amount of testimony declaring that Pohl does own his clienst list and contracts provides
far more than a scintilla of evidence in support of Pohl’s ownersship.38
2. Pohl’s evidence that Defendants assumed and exercised dominion and control over
the property in an unlawful and unauthorizedr manner, to the exclusion of and
inconsistent with Pohl’s rights is more than sufficient.
There is no dispute that Defendants obtained Pohl’s attorney-client contracts,
communications and client lists, nor is there aany dispute that they did so without obtaining Pohl’s
permission.39 Defendants expected to and did use that material and information to file suits and
grievances against Pohl.40 There is,e in fact, no evidence that Defendant’s actions were lawful,
authorized or consistent with Pohfl’s rights or frankly the right of Pohl’s clients.
3. Pohl’s evidence tyhat Defendants refused his demand for return of the property, if
necessary, is more than sufficient.
As a legal matter, Pohl contends that there was no requirement for Pohl to lodge a formal
demand for the creturn of his property, as Defendants wrongfully obtained possession of the
37 Furthermore, defendants’ argument ignores that a claim for conversion requires that a plaintiff have a right to
possession, not necessarily ownership, of the alleged converted property. See French v. Moore, 169 S.W.3d 1, 13
(Tex. App.—Houston [1st Dist.] 2004, no pet.). Even if defendants were correct that Pohl did not have legal title to
some of the converted information, the evidence Pohl cites to demonstrate his ownership would at the very least raise
a fact question about his superior right of possession against all third parties, such as against defendants.
38 See supra notes 33 & 35.
39 See Deposition of Tina Nicholson, at 70:7-15, attached as Exhibit I; Kassab Deposition, at 60:25-62:6, Exhibit E;
Pohl Declaration filed in response to TCPA Motion ¶ 8, Exhibit Y.
40 Kassab Deposition, at 70:4-20, Exhibit E.
10
converted property and their actions were a clear repudiation of Pohl’s rights to his property.41 As
a factual matter, Pohl and his counsel did repeatedly demand the return of Pohl’s property.42 To
the extent that there is any doubt that defendants wrongfully obtained possession of the materials,
this issue is a fact question.43 However, given that the individuals who tookk the materials
acknowledge that they believed it belonged to Pohl44 and did not have permislsion to take it, that
should remove any doubt. Additionally, there is enough evidence that Decfendants’ actions were a
repudiation of Pohl’s rights, as they used his converted materials to ssolicit clients to sue him and
disregarded his instructions to Precision to maintain the confidesntiality of the materials.45
Even if demand and refusal were necessary elements of Pohl’s claim, there is ample
evidence that Pohl sought the return of his files and other property from Precision, Nicholson, and
Kassab as well as from other defendants. Pohl’s counsel from another lawsuit made multiple
demands to Nicholson (then acting as the lawyaer for both Favre and Precision) for the return of his
property.46 Both Nicholson and Kassab testified in their depositions that they had entered a joint
venture to pursue barratry claims agaienst Pohl, and it is not disputed that, together with Montague,
they acted together.47 It is likewfise not disputed that Pohl struggled to obtain the return of his
41 See Guillory v. Dietrich, 598 S.W.3d 284, 294 (Tex. App.—Dallas 2020, pet. denied) (“demand and refusal are not
required if the defendanat wlrongfully acquired possession”); French v. Moore, 169 S.W.3d 1, 13 (Tex. App.—Houston
[1st Dist.] 2004, no peit.) (“A plaintiff is required to demand return of the property if the defendant legally obtained
possession.”); El Paso Prod. Co. v. Valence Operating Co., 112 S.W.3d 616, 625 (Tex. App.—Houston [1st Dist.]
2003, pet. denied)f (stating that a demand for return of the property is not required if the “possessor’s acts manifest a
clear repudiation of the plaintiff’s rights”).
42 See Collection of Letters from Billy Shepherd, attached as Exhibit Z; see also Exhibit 12 to the Nicholson Motion.
43 See supra notes 39-40.
44 See Deposition of Scott Walker, at 283:17-21, 316:5-319:14, 327:14-329:23, attached as Exhibit V; Deposition of
Kirk Ladner, at 126:17–128:20, 161:19–163:20, 340:22–342:17, 350:1–351:21, 356:23–358:10, attached as Exhibit
W; Deposition of Steve Seymour, at 193:13-195:9, attached as Exhibit X.
45 See Ex. B, Declaration of Lance Christopher Kassab, attached as Exhibit 1 to Kassab’s Motion to Dismiss, filed
October 24, 2018; Ex. E, Kassab Deposition 130:3-21 (admitting that Kassab attached Pohl’s fee agreements with
Pohl’s clients that he obtained from Precision to solicitation letters that Kassab sent to Pohl’s clients).
46 See Collection of Letters from Billy Shepherd, attached as Exhibit Z.
47 Nicholson Deposition, at 109:5-15, Ex, I; Kassab Deposition, at 37:2-7, Exhibit E; Exhibit AA (originally used as
Exhibit 8 to Kassab Deposition).
11
property, including by seeking sanctions from a federal court for failure to return everything to
him.48 Nicholson admits in her traditional motion for summary judgment that: “As part of the
settlement, the Parties entered into a confidential Settlement Agreement, and in the agreement Pohl
requested the return of the same trade secrets alleged here.” See Nicholson’s Amenkded Traditional
Motion for Summary Judgment, at 21, filed August 29, 2022. The evidence of dlemand and refusal
to return Pohl’s property is clear. c
4. Pohl’s evidence of damages resulting from the conversiosn of his property is more
than sufficient. D
Nicholson challenges Pohl’s evidence of damages asrising from the conversion of his
property. In so doing, she ignores established Texas law trhat provides:
An owner is competent to testify regarding the value of converted property and, in
the absence of controverting evidence, such testimony will sustain a verdict.
Wiese v. Pro Am Services, Inc., 317 S.W.3d 857, 862 (Tex. App.—Houston [14th Dist.] 2010, no
pet.) (citing Burns v. Rochon, 190 S.W.3d 263, 270–71 (Tex. App.—Houston [1st Dist.] 2006, no
pet.); see also Burlington N. R.R. ve. Gen. Projection Sys., No. 05–97–00425–CV, 2000 WL
1100874, at *8 (Tex. App.—Dalflas Aug. 8, 2000, pet. denied) (op. on reh’g) (not designated for
publication) (concluding tesytimony by plaintiff’s CFO concerning converted property’s rental
value was legally and Cfactually sufficient to support an award for loss of use damages). Pohl is
entirely competent ato testify regarding the value of the converted property.49
In additifon, there are multiple additional sources of evidence of the value of the converted
materialsU, including the amount Favre paid to acquire Precision Marketing and files in its
possession,50 Favre’s affidavit testimony regarding the value of the materials,51 and Defendants’
48 See Transcript of hearing on October 25, 2017, attached as Exhibit BB; Pohl Declaration ¶ 26, Ex. A.
49 Pohl Declaration ¶ 27, Ex. A.
50 The amount was $1.5 million; see Exhibit CC; see also Exhibit 10 to the Nicholson Motion.
51 See Favre Affidavit, Ex. DD.
12
payment of $250,000 plus bonuses for access to the materials.52 Finally, there is evidence that
Pohl suffered actual damages in the form of attorneys’ fees and expenses that he incurred
defending litigation that arose due to Defendants’ conversion of his property.53
C. Pohl has ample evidence of each element of TUTSA. k
Pohl has evidence to support each of the elements of his TUTSA claiml, as he can prove:
(1) that he owned trade secrets; (2) that Defendants knowingly acquired thcem by improper means,
and (3) that the misappropriation caused Pohl damages. See TEX. sCIV. PRAC. & REM. CODE §
134A.002. Texas law provides that a trade secret s 
may consist of any formula, pattern, device or compilation of information which is
used in one’s business, and which gives him an oprportunity to obtain an advantage
over competitors who do not know or use it. It may be a formula for a chemical
compound, a process of manufacturing, treating or preserving materials, a pattern
for a machine or other device, or a list of customers.
Trilogy Software, Inc. v. Callidus Software, Inc., 143 S.W.3d 452, 463 (Tex. App.—Austin 2004,
pet. denied). 
Mr. Pohl has sworn that he eowns the materials and that the materials at issue have
independent economic value fromf not being generally known to or ascertainable through proper
means by another person wyho can obtain economic value from them.54 He has sworn that he
protected the trade secrCet information by strictly limiting access and maintaining them under lock
and key and by ensauring that those who had access to the information understood its confidential
nature.55 This fwas confirmed by the Precision witnesses.56 He has sworn that he has suffered
52 See 2016.11.10 Agreement Between Kassab, Montague, and Favre, attached as Exhibit EE; Montague Deposition,
at 79:11-82:21, Ex. F.
53 Pohl Declaration ¶ 28, Ex. A.
54 Pohl Declaration ¶ 27, Ex. A.
55 Id. ¶¶ 14-15.
56 See, e.g., Deposition of Michael A. Pohl, attached as Exhibit T, at 5:22-7:23; Deposition of Scott M. Favre at 119:2-
13, Exhibit U; Deposition of Lance Kassab at 59:5-60:15, Exhibit E; Deposition of Scott Walker, at 283:17-21, 316:5-
319:14, 327:14-329:23, Exhibit V; Deposition of Kirk Ladner, at 126:17–128:20, 161:19–163:20, 340:22–342:17,
350:1–351:21, 356:23–358:10, Exhibit W; Deposition of Steve Seymour, at 193:13-195:9, Exhibit X.
13
injury as a result of Defendants’ misappropriation of those trade secrets.57 This evidence is
sufficient to overcome the challenges of the no-evidence motions. As set forth in greater detail
below, Pohl has substantial evidence of each element of his claims under TUTSA.
1. Pohl’s evidence that he owned the trade secrets is sufficient. k
TUTSA provides a statutory definition of the term “owner.” l
“Owner” means, with respect to a trade secret, the person or enticty in whom or in which
rightful, legal, or equitable title to, or the right to enforce rigrhts in, the trade secret is
reposed. s
TEX. CIV. PRAC. & REM. CODE § 134A.002(3-a). Once agasin, Defendants challenge Pohl’s
evidence demonstrating his ownership of the materials, claiming both that he did not own it and
that his acquisition of the trade secrets was wrongful. Pohl’s evidence of ownership, as fully set
forth above is substantial;58 it is Defendants’ position that Pohl did not own the materials that is
unsupported by any evidence. Defendants’ caontention that Pohl has no legal or equitable title to
his attorney-client agreements, his confidential client lists, and his attorney work product because
he obtained those materials by impropeer means is just another reiteration of their failed arguments
regarding barratry. Defendants’ cfontention that Pohl obtained the client lists through illegal action
has been fought and lost, andy their efforts to reurge every failed argument should be rejected.
2. Pohl’s evideCnce that he protected the trade secrets is sufficient.
Mr. Pohl has sworn that he strictly limited access to the trade secrets, and he ensured that
those who had fafccess to that information fully understood as part of their professional obligations
the confiUdential character of that information. Defendants apparently believe that because they
57 Pohl Declaration ¶ 28, Ex. A.
58 See, e.g., Deposition of Michael A. Pohl, attached as Exhibit T, at 5:22-7:23; Deposition of Scott M. Favre at 119:2-
13, Exhibit U; Deposition of Lance Kassab at 59:5-60:15, Exhibit E; Deposition of Scott Walker, at 283:17-21, 316:5-
319:14, 327:14-329:23, Exhibit V; Deposition of Kirk Ladner, at 126:17–128:20, 161:19–163:20, 340:22–342:17,
350:1–351:21, 356:23–358:10, Exhibit W; Deposition of Steve Seymour, at 193:13-195:9, Exhibit X.
14
were able to unlawfully obtain the information, Pohl cannot demonstrate that he protected that
information. If that argument succeeded, then in every claim of misappropriation, the
misappropriation itself would prove a failure to protect the information.
Defendants suggest that Pohl failed to protect the information at issue becaukse Pohl did not
include a specific confidentiality provision in his contract with Precision. Bult whether Pohl did
or did not take one of many potential steps to protect trade secrets does ncot support a no-evidence
motion for summary judgment. Pohl has more than a scintilla osf evidence of the statutory
requirement—that he take “reasonable measures under tshe circumstances” to preserve
confidentiality. Pohl testified that “numerous times throughout the relationship,” he emphasized
to Precision and its employees the importance of confidentiality.59 The testimony of individuals
associated with Precision shows that not only were they aware of the confidential nature of the
information, but they took reasonable steps ato protect the confidentiality of that information.60
These steps include (and are corroborated by Precision representatives):
• Pohl informed Preciseion and all of the staff of the confidential and privileged
nature of the inforfmation and instructed them to treat them accordingly.61
• Pohl maintai y ned his office at the top of Hancock Bank – “the most secure location
on the cCoast.”62
• The building had 24 hour/round the clock security.63
59 Deposition of Michael Pohl at 23:5-21, Exhibit T.
60 Deposition of Scott Walker, at 283:17-284:22, 321:5-324:7, Exhibit V; Deposition of Kirk Ladner, at 355:18–
358:10, 372:7–374:24, 377:4–23, 501:3–502:18, Exhibit W; Deposition of Steve Seymour, at 96:16-24, 223:1-20,
Exhibit X.
61 See Deposition of Scott Walker, at 283:17-284:22, Exhibit V; Deposition of Kirk Ladner, at 372:7–374:24, Exhibit
62 See Deposition of Scott Walker, at 283:17-284:22, Exhibit V; Deposition of Kirk Ladner, at 372:7–374:24, Exhibit
63 See Deposition of Scott Walker, at 283:17-284:22, Exhibit W.
15
• The elevators were coded such that one could only get to one’s own floors.64
• There were security cameras at every floor.65
• The documents and computers were kept under “lock and seal.”66
• The engagement agreements were clearly labeled to identify the k m as contracts
between lawyers and clients.67 C l
Defendants’ focus on the absence of a written confidentiality provision is a distraction from the
evidence (which defeats a no evidence summary judgment) of Pohl’s efforts to protect
confidentiality. s
2. Pohl’s evidence that Defendants knowingly mgisappropriated the trade secrets is
sufficient. r
The statutory definition of “misappropriation” includes “acquisition” of a trade secret by
improper means and “use” of a trade secret by a iperson if the person knows or has reason to know
that the person’s knowledge of the trade secret was derived from or through a person who used
improper means to acquire the trade sec
ret. TEX. CIV. PRAC. & REM. CODE § 134A.002(3). Kassab
and Nicholson misappropriated Poihl’s trade secrets by participating in a scheme to acquire stolen
trade secrets and they then “used” Pohl’s trade secrets by contacting Pohl’s clients to solicit their
participation in barratry souits.
Through theirl training and experience as lawyers, Kassab and Nicholson knew or should
have known that it was improper to obtain an attorneys’ client contracts and list from a third party
without thant lawyer’s or the client’s authorization.68 Furthermore, the agreement that Kassab
(Nicholson’s co-counsel) signed to obtain Pohl’s trade secrets contains an indemnity provision for
64 See Deposition of Scott Walker, at 322:9-23, Exhibit V.
65 Id.
66 See Deposition of Scott Walker, at 283:17-284:22, Exhibit V.
67 Pohl Declaration ¶ 15, Ex. A.
68 See Pohl Deposition at 115:5-116:1, Exhibit T.
16
Favre in which Kassab agreed to indemnify and hold harmless Favre in defending claims relating
to and/or arising from the disclosure of client information where such claims are asserted by Pohl
and certain others.69 Nicholson also was responsible for sending threatening letters to get Walker
and others to turn over Pohl’s information to Nicholson, Precision, and Favre.70 k
In addition, certain Defendants’ “uses” of the trade secrets occurred aftelr May 1, 2017, the
date of the Settlement Agreement that Nicholson discusses in her traditiocnal motion for summary
judgment.71 There can be no doubt that by the time Kassab and Nicholsson used Pohl’s trade secrets
to contact and solicit Pohl’s clients and former clients, they knsew that the materials belonged to
Pohl and their use violated his rights of ownership.
3. Pohl’s evidence that he incurred actual damages is sufficient.
Pohl has testified relating to his extensive damages arising from Defendants’ theft of trade
secrets.72 Those damages arose directly from athe actions of Defendants in misappropriating Pohl’s
trade secrets and attempting to monetize those secrets by contacting Pohl’s clients and former
clients and fomenting litigation againest him. Additionally, Pohl has provided evidence of damages
in the form of the market value fof his trade secrets that constitute unjust enrichment/reasonable
royalty damages for Defendaynts’ theft of those trade secrets.73
69 2016.11.10 Agreement Between Kassab, Montague, and Favre, Ex. EE.
70 See Letters from Nicholson (originally used as Exhibits 70 and 71 in the Walker Deposition), attached as Exhibit
FF; Deposition of Scott Walker, at 391, 394:11-395:9 (discussing Exhibits 70 and 71 and showing that they were
produced by Nicholson’s attorney in the deposition), Ex. V.
71 See Petitions in four cases, attached as Exhs. 28-30; 32 to the Nicholson’s Traditional Motion for Summary
Judgment, each filed after May 1, 2017, Exhibit C. These filings were in direct violation of the Settlement Agreement,
which requires that parties and their affiliates (defined to include their attorneys) will not file or cause to be filed any
complaint, claim or legal action against Pohl and others.
71 Cf. Nicholson’s Amended Traditional Motion for Summary Judgment, at 21, filed August 29, 2022
72 See Pohl Declaration ¶¶ 27-28, Ex. A.
73 See id. ¶ 27.
17
III.
CONCLUSION
For the foregoing reasons, Plaintiffs Michael Pohl and Law Offices of Michael A. Pohl
respectfully request that the No Evidence Motions for Summary Judgment filedk by Kassab and
Nicholson be in all respects denied and that the issues raised in Plaintiffs’ Peltition be tried by a
jury. c
Dated: September 12, 2022 Respectfully submitted,s
REYNOLDS FRIZZEsLL LLP
By: /s/ Jean C. Frizzell
Jean rC. Frizzell
State Bar No. 07484650
1100 Louisiana St., Suite 3500
Houston, Texas 77002
Tel.l 713.485.7200
Faax 713.485.7250
Mjfrizzell@reynoldsfrizzell.com
oAttorney for Plaintiffs Michael Pohl
e and Law Office of Michael A. Pohl, PLLC
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this document was served on all counsel of
record pursuant to the TCexas Rules of Civil Procedure on this the 12th day of September, 2022.
c /s/ Jean C. Frizzell
f Jean C. Frizzell
18
Automated Certificate of eService
This automated certificate of service was created by the efiling system. The filer served this
document via email generated by the efiling system on the date and to the persons listed below.
The rules governing certificates of service have not changed. Filers must still provide a certificate
of service that complies with all applicable rules.
Suni Blue on behalf of Jean Frizzell e
Bar No. 7484650 C
sblue@reynoldsfrizzell.com t
Envelope ID: 68182775 r
Status as of 9/13/2022 8:05 AM CST
Case Contacts
Name BarNumber Email sTimestampSubmitted Status
Solace Southwick ssouthwick@reynoldsfrizzell.com 9/12/2022 11:26:05 PM SENT
Zandra EFoley zfoley@thompsoncoe.com r 9/12/2022 11:26:05 PM SENT
Andrew Johnson ajohnson@thompsoncoe.com 9/12/2022 11:26:05 PM SENT
Andrew J. Sarne asarne@krcl.com 9/12/2022 11:26:05 PM SENT
Benjamin Ritz britz@thompsoncoe.conm 9/12/2022 11:26:05 PM SENT
Kathryn Laflin KLaflin@KRCL.com 9/12/2022 11:26:05 PM SENT
Murray JFogler mfogler@foglerbrrar.com 9/12/2022 11:26:05 PM SENT
Murray Fogler mfogler@fbfog.com 9/12/2022 11:26:05 PM SENT
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 9/12/2022 11:26:05 PM SENT
Larry Newsom lnewsom@fkrcl.com 9/12/2022 11:26:05 PM SENT
Jason M.Ciofalo jason@ciofalolaw.com 9/12/2022 11:26:05 PM SENT
Chris C.Pappas cpappas@krcl.com 9/12/2022 11:26:05 PM SENT
Todd Taylor titaylor@jandflaw.com 9/12/2022 11:26:05 PM SENT
Harris Wells fhwells@reynoldsfrizzell.com 9/12/2022 11:26:05 PM SENT
Todd Taylor ttaylor@jandflaw.com 9/12/2022 11:26:05 PM SENT
Lawyer Wade y lawyerwade@hotmail.com 9/12/2022 11:26:05 PM SENT
Scott M.Favre scott@favrepa.com 9/12/2022 11:26:05 PM SENT
Andrea Mendez C andrea@kassab.law 9/12/2022 11:26:05 PM SENT
Lance Kassab  lance@kassab.law 9/12/2022 11:26:05 PM SENT
David Kassab a david@kassab.law 9/12/2022 11:26:05 PM SENT
Nicholas Pierce c nicholas@kassab.law 9/12/2022 11:26:05 PM SENT
Dale Jefferson f i 10607900 jefferson@mdjwlaw.com 9/12/2022 11:26:05 PM SENT
Raul Herman Suazo o 24003021 suazo@mdjwlaw.com 9/12/2022 11:26:05 PM SENT
Kevin Graham Cain 24012371 cain@mdjwlaw.com 9/12/2022 11:26:05 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 9/12/2022 11:26:05 PM SENT
L Kassab lance@kassab.law 9/12/2022 11:26:05 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 9/12/2022 11:26:05 PM SENT
Misty Davis mdavis@reynoldsfrizzell.com 9/12/2022 11:26:05 PM SENT
Non-Party Witness Billy Shepherd bshepherd@spcounsel.com 9/12/2022 11:26:05 PM SENT
Deidre Hicks GWS_GROUP@spcounsel.com 9/12/2022 11:26:05 PM SENT
E. MarieJamison jamison@wrightclosebarger.com 9/12/2022 11:26:05 PM SENT
Jessica Z.Barger barger@wrightclosebarger.com 9/12/2022 11:26:05 PM SENT
Katie Budinsky kbudinsky@krcl.com 9/12/2022 11:26:05 PM ERROR
D Kassab david@kassab.law 9/12/2022 11:26:05 PM SENT"
36,2022-09-12,RSP,Pohl,Pohl’s response to Kassab trad MSJ,"Plaintiffs' Response in Opposition to Traditional Motions for Summary Judgment Filed by Kassab and Nicholson Defendants — comprehensive 38-page response opposing limitations, unlawful acts doctrine, attorney immunity, judicial proceedings privilege, release, TUTSA protection, ownership, and damages defenses","Response to traditional MSJs filed by Kassab (Aug. 29, 2022) and Nicholson (Amended, Aug. 29, 2022), four years into litigation. Filed September 12, 2022 at 11:55 PM. Incorporates arguments and evidence from companion no-evidence MSJ response filed same day. Filed by Jean C. Frizzell of Reynolds Frizzell LLP. Notes Court previously denied Kassab's first MSJ (limitations, res judicata, attorney immunity) on August 3, 2021.",MSJ-2,N/A,Phase 3,2022-09-12_RSP_Pohl-Response-to-Kassab-Trad-MSJ_FILED.pdf,Deny the traditional motions for summary judgment filed by Kassab and Nicholson in all respects,"9/12/2022 11:55 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 68182991
By: Deandra Mosley
Filed: 9/12/2022 11:55 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 THE
TRADITIONAL MOTIONS FOR SUMMARY JUDGMENT
FILED BY THE KASSAB DEFENDANTSl AND THE NICHOLSON DEFENDANTS
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”) and the Amended Traditional Motion for Summary Judgment filed by Tina Nicholson
and Baker Nicholson, LLP d/b/a Baker Nicholson Law Firm (collectively, “Nicholson,” and
together with Kassab, the “Moving Defendants”).
c I. INTRODUCTION
On June 8, 2021, Kassab moved for traditional summary judgment on the grounds of
limitations, res judicata, and attorney immunity. By order dated August 3, 2021, the Court denied
Kassab’s motion. Although nothing has changed relative to the facts relating to the defenses of
limitations and attorney immunity, Kassab reargues those issues to the Court. Nicholson likewise
asserts limitations and immunity defenses. For the same reasons the Court rejected those defenses
in Kassab’s original motions, the Court should reject those defenses again here.
The Moving Defendants’ assertion of an “illegal acts” defense fails as both a matter of fact
and a matter of law. Both Nicholson and Kassab expend countless breathless pakges and submit
dozens of exhibits in an effort to prove what they have been unable to demolnstrate in multiple
prior lawsuits and in Texas State Bar Grievances. The claim that Pohl engcaged in acts that violated
the Texas Rules governing lawyers has been examined and rejected bsy the State Bar of Texas, and
the enormous evidentiary record does not alter that determinatiosn. Instead, it merely exposes once
again the Moving Defendants’ overall strategy of muddying the record with extraneous allegations
against Pohl, in spite of the Court’s dismissal of all the counterclaims previously asserted against
him.
The “illegal acts” defense does noat apply because (1) it is preempted by Texas’s
proportionate responsibility statute; (2) Pohl’s actions have been adjudicated and were not
“admittedly” criminal or unlawful; aned (3) even if a fact issue remained regarding the legality of
Pohl’s acts, any wrongful act is fnot sufficiently tied to and is not a proximate cause of Pohl’s
claims here to give rise to a dyefense.
Nicholson contCends that any torts they committed against Pohl were released as a result of
the a confidential settlement agreement, executed in late April and early May 2017 (the
“Settlement Agf freement”), that resolved a lawsuit in federal court in Mississippi, styled No. 1:14-
cv-381-KUS-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 “Federal Court Case”), in
which Tina Nicholson represented Precision, then owned by Favre. Given that Nicholson has
flagrantly and repeatedly violated obligations arising from that Settlement Agreement, including
by fomenting litigation against Pohl and by failing to return all originals and all copies of materials
stolen from Pohl, it is surprising that Nicholson would invoke that agreement here. In any event,
the release on which Nicholson relies does not extend to the acts committed here.
The Moving Defendants also contend that various forms of immunity proktect them from
this suit, but their arguments fail as a matter of law. The attorney immunityl doctrine does not
protect lawyers from claims of conversion and theft of trade secrets comcmitted when they were
not representing any client. Similarly, the “judicial proceedings privislege” does not apply to those
torts in that context. s 
The final two defenses that the Moving Defendants assert in their traditional motions for
summary judgment are Pohl’s alleged failure to protect his trade secrets by requiring a
confidentiality agreement, and an argument that the damages Pohl seeks are not available as
recompense for misappropriation of trade secarets and conversion. Both defenses fail as a matter
of law and as a matter of fact. 
I. FeACTUAL BACKGROUND1
Pohl represented variousf persons and entities in claims arising from motor vehicle
accidents and the British Peytroleum Deepwater Horizon oil spill (“BP Matter”).2 Pohl engaged
Precision Marketing GCroup, LLC (“Precision”) to provide public relations services, to gather and
preserve evidence, a and to screen and liaise with Pohl’s clients and prospective clients.3 While
working for Pfofhl, Precision naturally gained access to Pohl’s confidential and proprietary
informatiUon and property, including trade secret materials.4 Scott Favre, individually and/or
1 Pohl incorporates by reference both the arguments and evidence contained in his Response to the No-Evidence
Motions for Summary Judgment that is filed on the same day as this Response.
2 Sworn Declaration of Michael A. Pohl (the “Pohl Declaration”) ¶ 2, attached as Exhibit A.
3 Id. ¶ 9.
4 Id.
through Scott M. Favre PA, LLC (collectively “Favre”) is the managing member of Precision.5
Favre took physical copies of Pohl’s information, and took possession of Pohl’s stolen computers
and misappropriated electronic data.6
In November 2016, facilitated by Nicholson, Kassab and Douglas Mokntague III and
Montague, Pittman & Varanado, P.A. purchased Pohl’s stolen confidentiall information and
property from Favre for a whopping $250,000, plus bonuses,7 taking poscsession of at least some
of the information and property in December 2016.8 The Moving Defsendants highly valued Pohl’s
stolen and misappropriated confidential information and propertys because, after purchasing it, they
intended to and did contact and solicit Pohl’s clients and prospective clients.9 These actions
constitute conversion, violations of the uniform trade secrets act (“TUTSA”), and conspiracy. Pohl
timely brought this lawsuit alleging those torts on August 28, 2018.10
The Barraatry Allegations
Although any attempt to relitigate the failed barratry allegations should not be permitted
(and will be the subject of appropriaete motions in limine and evidentiary objections), and Pohl
hesitates to give the allegations unfnecessary attention, Pohl will address those claims briefly below
out of an abundance of cautiyon and to not leave the inaccurate, and often purposefully misleading,
allegations unrebuttedC. While the problems and misstatements contained in Kassab’s and
5 Id. ¶ 24.
6 Id. ¶¶ 24–25.
7 November 10, 2016 Agreement, attached as Exhibit 1 to the Pohl Declaration (Exhibit A).
8 December 7, 2016 Email, attached as Exhibit 2 to the Pohl Declaration (Exhibit A).
9 The defendants have 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, Exhibit B;
Kassab Deposition 130:3-21 (admitting that Kassab attached Pohl’s fee agreements with Pohl’s clients that he obtained
from Precision to solicitation letters that Kassab sent to Pohl’s clients), Exhibit C.
10 See generally Pohl’s Original Petition, filed August 28, 2018.
Nicholson’s motions could result in an 80-page response, Pohl will address a few key issues and
rely upon his declaration to further rebut the allegations.
Precision, before the sale to the Favre parties, was owned and run by Kirk Ladner, Steve
Seymour, and Scott Walker.11 At the time that Pohl retained Precision, Preckision made the
following representations to Pohl: l
• That Precision had considerable experience in working wcith many law firms and
could provide marketing and public relations services, gather and preserve
evidence and act as a liaison with Pohl’s
clientss;12
• That Precision operated under the guidancge of experienced Mississippi attorneys
to ensure the propriety of their marketBing activities;13
• That Precision would organize anyd host festivals, town hall meetings and other
gatherings to appropriately edaucate the public as part of their marketing efforts;14
• That Precision would traifn  and supervise the Precision staff so as to ensure optimal
results and complian e ce with the rules governing their marketing activities.15
Mr. Pohl and Mr. WilOliafmson relied on these representations in moving forward with
Precision’s principals and entered into services agreements that provided for an hourly rate for
services that was cappCed at a percentage of Pohl’s fees.16 Precision worked out of an office
11 Pohl Declaration ¶¶ 5-8, 24, Exhibit A.
12 Pohl Declaration ¶¶ 5, 9, 25.
13 Pohl Declaration ¶¶ 10, 20.
The evidence still supports this representation. As Walker testified less than two weeks ago: “We ran [the
contracts between Precision and Pohl] past multiple law firms and they all approved those.” Deposition of Scott
Walker, at 209:25-211:9, attached as Exhibit D.
14 Pohl Declaration ¶ 21.
15 Pohl Declaration ¶ 21.
16 Pohl Declaration ¶ 18; see also Exhibit 2 to the Kassab Motion (attaching a later example of such an agreement).
supplied by Pohl and Precision’s owners and staff were Pohl’s agents facilitating the rendition of
Pohl’s and Williamson’s legal service.17
Precision did not live up to expectations. Precision committed the following misconduct:
• Referred certain clients to other lawyers when they were supposed kto be providing
services full time to Pohl and Williamson; C l
• Fabricated expenses to overcharge Pohl for fraudulent expcense reimbursements;
• Systematically overcharged Pohl in violation of the services agreements;
• Failed to keep time records as both required sby the services agreements and
repeatedly requested by Pohl. g
• Brought suit in Mississippi Federal CBourt claiming Precision was underpaid for
their marketing and public relatioyns services. Precision initially (and correctly)
argued that they were paid by a hourly fee.18 When their lack of supporting time
records became a problemf and when Nicholson became involved in the litigation,
their position changed to that they were guaranteed a percentage of the fee.19 As
will be addressOed below, it was Nicholson who raised the issue of barratry,
provided the Precision witnesses scripts to follow to assert barratry allegation,
and threatened witnesses unless they delivered the scripted testimony concocted
by hier.
• o fPrecision then stole Pohl’s client files, information and computers so that they
could sell them ostensibly as part of a sale of Precision to Favre with Favre then
17 Pohl Declaration ¶ 14 (discussing how Precision’s principals acted as the functional equivalent of employees).
18 See Original Complaint in MS Lawsuit, at 5-6, attached as Exhibit 4 to the Nicholson Motion (discussing how
Precision was entitled to “hourly fees”).
19 See Amended Complaint in MS Lawsuit filed March 17, 2016, at 12-13, attached as Exhibit E (including different
allegations that Precision was entitled to a percentage of fees, not an “hourly rate”).
acting as managing member of Precision to move forward with a concerted
scheme to bring barratry claims against Pohl, Williamson and a third lawyer Rob
Ammons.
After the sale of Precision to Favre, Nicholson represented Favre, Precisiokn and the three
individuals (Ladner, Seymour and Walker) and actively suborned perjury. It lis against this back
drop that Kassab and Nicholson have selectively pulled testimony capparently scripted by
Nicholson and designed to further Precision’s claims in the Mississisppi suit and provide support
for the barratry lawsuit scheme—now largely recanted—to suppsort their assertion of barratry.
The Multiple Grievances
As a starting point, it is important to note that all of the allegedly illegal acts argued by
Kassab and Nicholson were the subject of a grievance brought by Kassab against Pohl individually,
as well as multiple grievances brought by Kasasab as counsel for former clients of Pohl that Kassab
had solicited after purchasing Pohl’s files. Kassab, in a manner very similar to the course chosen
by Kassab and Nicholson for their Meotion for Summary Judgment, submitted over 60 pages of
argument for his individual grievfance and over 2,300 pages of exhibits. However, once Pohl had
an opportunity to respond ywith the actual facts and by pointing out the misstatements and
fabrications in Kassab’Cs submissions, Pohl was cleared of any wrongdoing:
The Kassab a Grievance: State Bar of Texas: Summarily Dismissed.20
The Chf f eatham Grievance:
U• State Bar of Texas: “This office has examined the Grievance and determined that
the information alleged does not demonstrate Professional Misconduct or a
Disability.21
20 See Nov. 15, 2019 Letter from State Bar of Texas: Office of the Chief Disciplinary Counsel, Ex. F, at 12.
21 See Feb. 24, 2020 Letter from State Bar of Texas: Office of the Chief Disciplinary Counsel, Ex. G, at 11.
• The Board of Disciplinary Appeals: “After reviewing your grievance as you
originally filed it and no other information, the Board has determined that the
conduct you described in the grievance does not violate the Texas Disciplinary
Rules of Professional Conduct.”22 k
The Bikumbu Grievance: C l
• State Bar of Texas: dismissed on limitations grounds:23 c
• The Board of Disciplinary Appeals: “After reviewing your grievance as you
originally filed it and no other information, thse Board has determined that the
conduct you described in the grievance doges not violate the Texas Disciplinary
Rules of Professional Conduct.”24 B
The Speck Grievance: y
• State Bar of Texas: dismissed oan limitations grounds:25
• The Board of Disciplinafry Appeals: “After reviewing your grievance as you
originally filed it and no other information, the Board has determined that the
conduct you deOscribed in the grievance does not violate the Texas Disciplinary
Rules of Professional Conduct.”26
The Berry Grievance:
• Statie Bar of Texas: dismissed on limitations grounds:27
• o f The Board of Disciplinary Appeals: “After reviewing your grievance as you
originally filed it and no other information, the Board has determined that the
22 See May 14, 2020 Letter from The Board of Disciplinary Appeals, Ex. H, at 5.
23 See Jan. 14, 2020 Letter from State Bar of Texas: Office of the Chief Disciplinary Counsel, Ex. I, at 10.
24 See April 10, 2020 Letter from The Board of Disciplinary Appeals, Ex. J, at 4.
25 See Jan. 9, 2020 Letter from State Bar of Texas: Office of the Chief Disciplinary Counsel, Ex. K, at 8.
26 See April 10, 2020 Letter from The Board of Disciplinary Appeals, Ex. L, at 1.
27 See Jan. 9, 2020 Letter from State Bar of Texas: Office of the Chief Disciplinary Counsel, Ex. M, at 7.
conduct you described in the grievance does not violate the Texas Disciplinary
Rules of Professional Conduct.”28
The Miller Grievance:
• State Bar of Texas: “This office has examined the Grievance and kdetermined that
the information alleged does not demonstrate ProfessionCall Misconduct or a
Disability.”29 c
• The Board of Disciplinary Appeals: “After reviewing your grievance as you
originally filed it and no other information, thse Board has determined that the
conduct you described in the grievance doges not violate the Texas Disciplinary
Rules of Professional Conduct.”30 B
Undeterred, Kassab and Nicholson rely yheavily for their allegations of barratry upon
portions of testimony from Scott Walker takaen from his 2016 deposition in the Mississippi suit
when: a) he was trying to obtain funds from Pohl and Williamson; b) he was represented by
Nicholson; and c) he was directed by Nicholson on what he should and should not say including
the instruction to pepper his testimfony with barratry allegations.31
Q. (Kassab) Now, I hear what you said. You said that Tina Nicholson prepared
you for the deposoition. Is that what I heard?
A. (Walker) Yes
Q. And idid Ms. Nicholson tell you to lie?
A. She just told us things, buzz words to say. I had never heard the word
“barratry” before, “cold calling.” Those were the things Ms. Nicholson wanted us
to say throughout the deposition as much as we could.”
Q. Do you recall my question?
28 See April 10, 2020 Letter from The Board of Disciplinary Appeals, Ex. N, at 2.
29 See Jan. 9, 2020 Letter from State Bar of Texas: Office of the Chief Disciplinary Counsel, Ex. O, at 9.
30 See April 10, 2020 Letter from The Board of Disciplinary Appeals, Ex. P, at 3.
31 See Deposition of Scott Walker, at 198:19-199:19, 203:15-204:23, Exhibit D.
A. What was it?
Q. I asked you if Ms. Nicholson instructed you or told you to lie in the deposition.
A. Yes.
Q. Okay. And is it your testimony today that you, in fact, perjured yourself in the
deposition by lying?
A. No. r
Q. Well, did you lie in the deposition? C
A. I listened and did what my attorney said to do.32 t
This is a stunning admission given that Walker is an ex-felon.t He went on to testify that
he did not knowingly intend to lie but relied upon the advice of Nicholson to give the testimony
he gave.33 e
Kassab and Nicholson also rely heavily on a uSeptember 24, 2016 affidavit and some
testimony by Magdelena Santana. While Kassab annd Nicholson do mention that she swore out an
additional affidavit, they do not describe it accur irately. Nor do they mention Ms. Santana’s letter
sent to Judge Starett in Mississippi (among other recipients) and the taped conversation that
occurred solely between Ms. Santana and Kassab.
Ms. Santana’s letter statedf ais follows:34
32 See Deposition of Scott Walker, at 203:15-204:23 (emphasis added), Exhibit D.
33 See Deposition of Scott Walker at 205:1-14, Exhibit D; see also Deposition Instructions to Walker, attached as
Exhibit Q (used as Walker Ex. 69 in the deposition); Deposition of Scott Walker at 347:20-350:7, Exhibit D
(authenticating Walker Ex. 69).
34 See October 3, 2017 letter from Magdalena Santana copying Judge Starett, attached as Exhibit R.
10
The private call between Kassab and Santana, secretly recorded by Kassab on August 15th,
2017 confirms her letter to Judge Starret and reflects the pressure brought to bear by Nicholson
and Favre against Ms. Santana:
…I’m still going through emotional distress. Recently I just finished that
subpoena, going to be a year in November, with the whole scenario that they
promised cthat I would – the firm, Tina Nicholson and Scott [Favre], they signed the
documefnft that said that if I testified – actually they were calling my mom’s house,
calling me, saying that if I didn’t come and testify, that I was going to be in
trUouble, that they were going to go send – subpoena my brother. I don’t know. It’s
been super-stressful. It’s been super stressful. They’ve been calling and telling me
all kinds of stuff. And I agreed to go and testify just to avoid any type of problems
to come to my family, to my mother’s house and my brother’s house in the fact –
and due to the fact that they were going to pay me what was owed, they got settled
money and then they just kicked me to the curb.35
35 See Audio Transcription dated August 15, 2017, at pp. 6-7, attached as Exhibit S.
11
And although Kassab sought to coax Santana into supporting the claim that Pohl and
Williamson were involved in an alleged barratry scheme, Santana rejected that contention as well:
MR. KASSAB: My understanding is Williamson Pohl set up the scheme. I thought
that’s what you told me.
MS. SANTANA: The marketing firm is the one that hired me. I didn’t eeven go out
and meet Pohl and Williamson during the course of that whole thing…l.36
Kassab and Nicholson also assert that Pohl paid Santana $50,00c0 and imply that it was
payment to retract her September 14, 2016 affidavit and to sign her Dsecember 19, 2017 affidavit.
This is not only false but is clearly designed to mislead the Cousrt.
The actual facts surrounding the disturbing story of Ms. Santana are as follows. Ms.
Santana wrote/signed the relevant agreements, correspondence and affidavits on the following
dates:
May 21, 2014: Santana/Walker eat al./Pohl release and non-disparagement
agreement a/k/a “sworn statement” M(Santana is paid $50,000 as consideration).
September 24, 2016: Santana’s “ffirst affidavit” (prepared by Tina Nicholson)
October 3, 2017: Santana’s eletter to Favre/Nicholson/Judge Starrett (stating she
was coerced into signing thec “first affidavit”)
December 19, 2017: SOantana’s “second affidavit” (retracting the “first affidavit”).
The Moving Defendants’ reliance on testimony from a retracted affidavit demonstrates that their
Motions are not to be tCaken seriously.
II. ARGUMENT
A. The Efvidence Cited by the Moving Defendants Is Not Competent Summary
Jundgment Evidence and Pohl Objects to Consideration of It.
As a threshold matter, the Moving Defendants rely on numerous inadmissible deposition
transcripts taken in other lawsuits, many of which involve persons who are not parties to this
lawsuit. Additionally, the exhibits attached to Kassab’s Motion are not properly authenticated as
36 Id. at 3-4.
12
evidence, as the attached declaration incorrectly claims that everything attached to Kassab’s
Motion are business records of Kassab’s firm. The lack of seriousness with which the Moving
Defendants approach summary judgment evidence is not surprising, given that the motions also
rely on controverted evidence, which cannot support a traditional motion for summkary judgment.
The Moving Parties cite to numerous deposition transcripts from plrior lawsuits that
constitute inadmissible hearsay that the Court should disregard. The Tcexas Rules of Evidence
provide an exclusion from the hearsay rule for testimony from a desposition “taken in the same
proceeding.” TEX. R. EVID. 801(3). However, deposition testims ony from a different proceeding
is inadmissible unless it falls within an exclusion to the hearsay rule. See Taylor v. Baylor Scott
& White Med. Ctr.-Frisco, No. 05-20-00352-CV, 2022 WL 405896, at *3 (Tex. App.—Dallas
Feb. 10, 2022, no pet.) (“Because the record establishes that Dr. Carmody’s deposition testimony
is not from the same proceeding, and the deposaition did not fall within any exclusion to the hearsay
rule, the trial court did not abuse its discretion in excluding this evidence.”).
Kassab cites to eight differenet inadmissible deposition transcripts from prior lawsuits.37
These are not tangential to Kassfab’s Motion, as he cites to these inadmissible depositions well
over a hundred times. See gyenerally Kassab’s Motion. Nicholson’s Motion fares a little better.
She cites to four diffeCrent inadmissible deposition transcripts from prior lawsuits38 well over a
dozen times. See generally Nicholson’s Motion. Furthermore, Kassab incorporated Nicholson’s
briefing and evfifdence. See Kassab’s Motion, at 2. Pohl objects to these exhibits, and the Court
should exUclude all of this inadmissible evidence and deny the Motions as insufficient on this
ground alone.
37 See Kassab Ex. 3-A; Kassab Ex. 3-B; Kassab Ex. 4; Kassab Ex. 7; Kassab Ex. 8; Kassab Ex. 15; Kassab Ex. 25;
Kassab Ex. 39.
38 See Nicholson Ex. 18; Nicholson Ex. 19; Nicholson Ex. 25; Nicholson Ex. 26.
13
Pohl also objects on the grounds that Kassab’s Motion improperly attempts to authenticate
evidence as business records without proper support. Despite attaching 60 exhibits, which include
items like contracts to which Kassab is not a party39 and correspondence between third parties,40
Kassab attempts to authenticate all of the exhibits by stating: k
Attached to the Motion are true and correct copies of documents whichl were either
exchanged in discovery in the Barratry Litigation, including document production
and depositions, or used in the Barratry Litigation, like declacrations from my
clients. These documents are considered business records of the Frirm and have been
kept in the regular course of business. The records attached tos the Motion are exact
duplicates.41 D
First, this does not satisfy the requirements of a business recsords affidavit. See TEX. R. EVID.
902(10). Furthermore, much of the evidence cannot satisfry the requirements of a business record,
as there is no way for David Kassab to be familiar with the creation of items that were produced
in discovery by other parties and whether “the relcord was made at or near the time by—or from
information transmitted by—someone withM knowledge.” See TEX. R. EVID. 803(6)(A).
Because they are not properly aouthenticated as evidence, the Court should not consider
Kassab Exhibits 2-5, 7-8, 10-15, 17c, 20-21, 23-28, 30-34, 36-38, 40, & 51.
B. Pohl’s Claims are Not Barred by Limitations.
Pohl’s claims against the Moving Defendants accrued no earlier than November 2016
because they arise from the November 2016 purchase—and subsequent use—of information and
property stolen frcom 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.
39See, e.g., Kassab Exhibits 26 & 31.
40 See, e.g., Kassab Exhibit 38.
41 See Declaration of David Kassab ¶ 5, attached as Exhibit 1 to the Kassab Motion.
14
1. The summary judgment standard for the affirmative defense of limitations.
Defendants seeking summary judgment on limitations bear the burden of proof and must
conclusively prove when each of the alleged causes of action accrued. See Regency Field Services,
LLC v. Swift Energy Operating, LLC, 622 S.W.3d 807, 818 (Tex. 2021) (“a defkendant seeking
summary judgment based on limitations must conclusively establish that thel limitations period
expired before the claimant filed suit”). “Generally, a claim accruecs when the defendant’s
wrongful conduct causes the claimant to suffer a legal injury, which gsives the claimant the right to
seek a judicial remedy.” Id. Texas courts apply specific tests to determine the accrual of certain
claims, including the three claims at issue here.
A claim for conversion generally accrues at the time of the defendant’s “unlawful taking”
of the plaintiff’s property. See Burns v. Rochon, 190 S.W.3d 263, 271 (Tex. App.—Houston [1st
Dist.] 2006, no pet.). When property is alleged to have been converted and then transferred to
another party, “each possession is a new conversion.” Pemex Exploracion y Produccion v. BASF
Corp., CIV.A. H-10-1997, 2013 WLe 5514944, at *31 (S.D. Tex. Oct. 1, 2013) (citation omitted)
(applying Texas law). There is a ftwo-year limitations period for conversion. See TEX. CIV. PRAC.
& REM. CODE § 16.003(a). y
“A cause of acCtion for trade-secret misappropriation accrues when the trade secret is
actually used. Use aof the trade secret means commercial use by which the offending party seeks
to profit from thfe use of the secret.” Sw. Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699,
721–22 (UTex. 2016) (cleaned up). There is a three-year limitations period for TUTSA violations.
See TEX. CIV. PRAC. & REM. CODE § 16.010(a). The civil conspiracy claim is derivative of the
underlying torts, and it 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).
15
2. Pohl’s claims accrued within two years of the initiation of this suit.
Pohl brought suit on August 28, 2018.42 Because Pohl’s conversion claim accrued after
August 28, 2016 and Pohl’s TUTSA claim accrued after August 28, 2015, the affirmative defense
of limitations fails. k
Pohl’s conversion claim arises from Defendants’ purchase and slubsequent use of
information and property that they knew had been stolen from Pohl. Seec Amended Complaint ¶¶
36–38.43 The evidence shows that Defendants made this purchasse through a contract dated
November 10, 2016.44 The Defendants took possession of at least some of Pohl’s information and
property no earlier than that date and mostly beginning in De e cember 2016.45
Pohl’s conversion claim accrued when the Defendants obtained Pohl’s property. See Burns
v. Rochon, 190 S.W.3d 263, 271 (Tex. App.—Houston [1st Dist.] 2006, no pet.). Contrary to the
Defendants’ arguments, a prior claim for conversion against other individuals or entities is entirely
irrelevant, as “each possession is a new conversion.” Pemex Exploracion y Produccion v. BASF
Corp., CIV.A. H-10-1997, 2013 WLe 5514944, at *31 (S.D. Tex. Oct. 1, 2013) (emphasis added)
(applying Texas law). Defendafnts’ liability did not accrue when other people and entities
committed wrongs against Pyohl; that liability accrues when Defendants themselves committed the
tortious acts. BecauseC the contract to purchase the property is dated in November 2016,46 and
Kassab was still acaquiring possession of the stolen property in December 2016,47 Pohl’s claim
against Kassab ffor conversion accrued, no earlier than November 2016—well within the two-year
period. U
42 See generally Pohl’s Original Petition, filed August 28, 2018.
43 See also November 10, 2016 Agreement, attached as Exhibit 1 to the Pohl Declaration.
44 Id.
45 December 7, 2016 Email, attached as Exhibit 2 to the Pohl Declaration.
46 November 10, 2016 Agreement, attached as Exhibit 1 to the Pohl Declaration.
47 December 7, 2016 Email, attached as Exhibit 2 to the Pohl Declaration.
16
Pohl’s TUTSA claim is based on Defendants’ knowing purchase and subsequent use of
stolen trade secrets. See Amended Complaint ¶¶ 39–42. Pohl’s TUTSA claim accrued upon the
Defendants’ use of Pohl’s stolen trade secrets. See Sw. Energy Prod. Co. v. Berry-Helfand, 491
S.W.3d 699, 721–22 (Tex. 2016). For Defendants to obtain summary judgmentk on limitations,
they must conclusively show that Pohl’s TUTSA claim against accrued prior tlo August 28, 2015.
See TEX. CIV. PRAC. & REM. CODE § 16.010(a) (providing a three-year limcitations period). Pohl’s
claims accrued no earlier than November 10, 2016, as that is the date osf the contract through which
Defendants purchased Pohl’s trade secrets.48 Given that Defensdants had not collected all of the
materials by December 7, 2015,49 their use of Pohl’s trade secrets—and the accrual of Pohl’s
TUTSA claim—occurred after November 10, 2016.
3. The arguments and evidence about the actions of others are irrelevant to the Moving
Defendants’ limitations defense. l
Kassab and Nicholson focus on wrMongful conduct by others—conduct that does not give
rise to Pohl’s claims in this lawsuit—too argue that limitations bars Pohl’s claims. See Nicholson
Defendants’ Motion at 36-40; Kascsab Defendants’ Motion at 45-51. However, in determining
when claims accrued against a defendant, it is that defendant’s alleged wrongful conduct that is
relevant, not the conduct of others. Defendants’ participation in the sale and purchase of Pohl’s
information, through a contract dated in November 2016, and their subsequent use of that
information is thec conduct that gives rise to Pohl’s claims. See Amended Petition ¶¶ 21–23, 26–
29, 33.50 D o efendants’ arguments suggest a sort of reverse discovery rule—i.e., they hope to
convince the Court that because Pohl allegedly knew that others may have stolen and otherwise
48 November 10, 2016 Agreement, attached as Exhibit 1 to the Pohl Declaration.
49 December 7, 2016 Email, attached as Exhibit 2 to the Pohl Declaration.
50 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, attached as Exhibit B.
17
mistreated certain of his trade secrets and other property belonging to him, his causes of action for
separate torts by these Defendants accrued before any Defendants had even committed the torts
for which Pohl seeks to recover. The discovery rule does not operate to shorten the statutory
limitations period to cause a claim to accrue before the defendant commits a tort. k
Even if the wrongful conduct of others (that did not give rise to Polhl’s claims) were
somehow relevant to a limitations defense—and it is not—the Movincg Defendants have not
factually established that Pohl “knew or in the exercise of reasonable dsiligence should have known
of the wrongful act and resulting injury” more than three years psrior to this lawsuit for his TUTSA
claim and more than two years prior for the conversion claim. See Regency Field Services, LLC
v. Swift Energy Operating, LLC, 622 S.W.3d 807, 817 (Tex. 2021).
Nicholson argues that Pohl knew or should have known that Precision stole the trade
secrets in 2014 or that Favre claimed ownaership of the trade secret documents and Pohl’s
computers by no later than May 2015. She does not explain, however, how that knowledge can
possibly trigger limitations on sepaerate torts committed by Nicholson. She cites case law
indicating that trade secrets claimfs are not continuing offences and that “the wrong occurs at the
time of the improper acquisiytion.” Nicholson Defendants’ Motion at 42. Pohl agrees—the wrong
occurred no earlier thaCn the time of the improper acquisition of the trade secrets, no earlier than
November or December 2016. How could Pohl have known about that in May 2015 when it had
not even happef fned yet?
SiUmilarly, Kassab argues that “at least of May 2015, Pohl knew that Walker and Ladner
had transferred the alleged trade secrets to Favre.” Such knowledge, even if established, does not
address a claim of conversion or theft of trade secrets committed by Kassab. Kassab also purports
to negate the application of the discovery rule through Pohl’s testimony. The evidence Kassab
18
cites suggests only that Pohl may have had knowledge of some wrongful conduct by some
individual or individuals that occurred in 2014.51 It does not address when Pohl knew of Kassab’s
own wrongful conduct.52 Again, the discovery rule does not cause limitations to commence before
the defendant has even committed the wrongful act for which the plaintiff sues. k
As much as they struggle to establish their limitations defense as a maltter of law, Kassab
and Nicholson have at most raised a question of fact regarding the acccrual date of the asserted
causes of action. Indeed, the evidence is undisputed that as to Kassabs and Nicholson, the dates of
their torts are well within the statutory limitations period. Thse Court should deny the Moving
Defendants’ Motions to the extent that they are based on limitations.
C. The Unlawful Acts Doctrine53 is not legally available or factually established.
The Moving Defendants expend pages and pages and submit volumes of exhibits—
including exhibits that are not competent evidaence—attempting to establish their contention that
Pohl committed various violations of the Texas Rules. See Nicholson Defendants’ Motion at 3-
25; Kassab Defendants’ Motion at 3-3e2. Apparently disappointed in their inability to successfully
present this collection of materifals in their failed efforts to obtain a judgment against Pohl—
through separate failed lawsuyits—they are attempting to salvage some value out of it by submitting
to the Court in this caseC. This “evidence” has no place here. It is irrelevant, it establishes nothing
as a matter of law, and it is simply an attempt to distract from the Moving Defendants’ patently
51 See Exhibit 58 to Kassab’s Motion (discussing Pohl’s knowledge and contentions made in May 2018).
52 See generally id.
What Pohl’s prior testimony shows is that he was contending that, at that time, he believed Kassab had
conspired with individuals who had previously wronged Pohl. As a co-conspirator, Kassab would thus be responsible
for their acts. A past belief about conspirator liability does not change the fact that Kassab’s wrongful conduct took
place within the limitations period.
53 The Moving Defendants variously characterize this defense as the “illegal acts rule,” the “unlawful acts doctrine,”
“in pari delicto” and “equity.” This section of Pohl’s response covers each of those defenses, as they are treated as
interchangeable by the Moving Defendants.
19
tortious acts. Furthermore, to the extent that the doctrine could have applied, it is preempted by
Texas’s proportionate responsibility statute.
1. The Unlawful Acts Doctrine is preempted.
To the extent that the unlawful acts doctrine could have any relevance tok this case, it is
preempted by Texas’s proportionate responsibility statute. In Dugger v. Arrledondo, the Texas
Supreme Court explicitly considered “whether the common law unlawful cacts doctrine is available
as an affirmative defense under the proportionate responsibility framsework.” 408 S.W.3d 825,
831–32 (Tex. 2013). The Court found that ""it is not,” and thast “[t]he plain language of section
33.003 clearly indicates that the common law unlawful acts doctrine is no longer a viable defense.”
Id. at 832.
The claims alleged against the Moving Defendants, conversion, theft of trade secrets, and
conspiracy, are torts that are subject to the praoportionate liability statute. See TEX. CIV. PRAC. &
REM. CODE § 33.002. Kassab clearly thinks this statute applies as well, as he filed a flawed motion
to designate responsible third partiees under this statute. See generally Kassab’s Motion to
Designate Responsible Third Parfties, filed May 13, 2022. While Kassab is incorrect that people
other than defendants in this ylawsuit are responsible for the damages Pohl seeks, he cannot dispute
that the unlawful acts dCoctrine is not a valid defense in this lawsuit.
2. Even if not preempted, the Unlawful Acts Doctrine does not apply in this case.
Under Tf fexas law, the concepts of “unlawful acts,” “illegal acts rule,” or “in pari delicto”
provide tUhat “no action may be predicated upon an admittedly unlawful act of the party asserting
it.” Denson v. Dallas Cnty. Credit Union, 262 S.W.3d 846, 855 (Tex. App.—Dallas 2008, no pet.)
(emphasis added). Courts have interpreted this defense to mean that if the illegal act is inextricably
intertwined with the claim and the alleged damages would not have occurred but for the illegal act,
20
the plaintiff is not entitled to recover as a matter of law.” See Sharpe v. Turley, 191 S.W.3d 362,
366 (Tex. App.—Dallas 2006, pet. denied).
An examination of the caselaw—including the caselaw cited by the Moving Defendants—
shows that courts apply the doctrine when “at the time of the plaintiff’s injury, tkhe plaintiff was
engaged in an illegal act, and that act contributed to the injury.” Andrew Sheblay & Co., P.L.L.C.
v. Bishop, 429 S.W.3d 644, 648–49 (Tex. App.—Houston [1st Dist.] 20c13, pet. denied); Kassab
Defendants’ Motion at 62 (citing Bishop). It is not enough to plausibsly connect a claim to illegal
conduct, courts look at whether the plaintiff’s claim is prediscated on and must be proven in
connection with an illegal act. See Carcamo-Lopez v. Does 1 through 20, 865 F. Supp. 2d 736,
767 (W.D. Tex. 2011) (“But when the illegal conduct arises in a defense and not in the plaintiff’s
case, the unlawful acts rule will not bar a plaintiff’s claims.”).
As an initial matter, there is no “admitatedly unlawful act” that would allow the application
of the doctrine. See Macias v. Moreno, 30 S.W.3d 25, 29 (Tex. App.—El Paso El Paso 2000, pet.
denied). In addition, any alleged unlaewful act was not inextricably intertwined with Pohl’s causes
of action. To determine whether tfhe illegal act is “inextricably intertwined” courts look to whether
“whether the person seekingy to enforce [his claim] requires any aid from the illegal transaction to
establish his case.” SeCe Marathon Oil Co. v. Hadley, 107 S.W.2d 883, 885 (Tex. Civ. App. 1935)
(quotation omitted).
No recof fvery can be had if it is necessary for the plaintiff to prove, as part of his
cause of action, his own illegal contract or other illegal transaction. But the plaintiff
mUay recover if he can show a complete cause of action without being obliged to
prove his own illegal act, although such act may incidentally appear, and may be
explanatory even of other facts in the case, it being sufficient if his cause of action
is not essentially founded upon something which is illegal.
Id. See also Macias, 30 S.W.3d at 29 (“However, if a party can show a complete cause of action
without being obliged to prove their own illegal act, although the illegal act may appear
21
incidentally and may be important in explanation of other facts in the case, they may recover.”).
Pohl can certainly demonstrate the elements of each of his claims without being required to prove
any illegal act.54 Nothing about Pohl’s claims requires him to show that his client contracts are
enforceable or are free from any alleged barratrous activity. He owns his own kclient contracts
regardless of how he procured them. l
Another impediment to the application of the unlawful acts thec Texas Supreme Court
clarified long ago that the illegal act must have been a proximate casuse of the plaintiff’s injury.
Pyeatt v. Anderson, 269 S.W. 429, 430 (Tex. Comm’n App. 1s925); Arredondo v. Dugger, 347
S.W.3d 757, 761–62 (Tex. App.—Dallas 2011), aff’d 408 S.W.3d 825 (Tex. 2013); Petta v. Rivera,
985 S.W.2d 199, 204 (Tex. App.—Corpus Christi–Edinburg 1998), rev’d on other grounds sub
nom. Texas Dep’t of Public Safety v. Petta, 44 S.W.3d 575 (Tex. 2001). Even crediting the Moving
Defendants’ arguments, any illegal act by Paohl is not the proximate cause of Pohl’s injuries.
Instead, the cause of his injuries were the tortious acts of the Moving Defendants.
The illegal acts doctrine is noet applicable to Pohl’s claims as a matter of law. Whether
Pohl committed any of the acts thef Moving Defendants allege (and he did not) is in no way relevant
to Pohl’s claims against themy. It is nothing more than a side-show. And, as set forth below, the
Moving Defendants haCve wholly failed to establish their defense as a matter of fact.
3. Kassab’s use of caselaw on the unlawful acts doctrine is misleading.
Kassabf fcontends that “Texas courts have applied the Unlawful Acts Rule to preclude
claims arUising from barratry.” Kassab’s Motion, at 64 (emphasis removed). They cite to Truyen
Luong v. McAllister, No. 01-17-00198-CV, 2018 WL 3651103 (Tex. App.—Houston [1st Dist.]
54 As addressed more fully below, the Moving Defendants’ strident contentions that Pohl obtained the client lists and
other property and materials through “illegal acts” are false, as evidenced by the failure of both the grievance procedure
and their barratry suits.
22
Aug. 2, 2018, pet. denied). Id. But Kassab’s discussion of McAllister has no bearing on this
lawsuit. McAllister dealt with a non-lawyer suing to recover compensation under an agreement
where all parties admitted the compensation was a percentage of a lawyer’s fees. McAllister, 2018
WL 3651103, at *2. The court held that “the contract was void due to illegality.” k Id. at *4. Pohl
is not attempting to enforce any client agreement or agreement with anyone whlo worked for him.
The fact that a court refused to enforce a contract that was admittedly illecgal is not surprising, and
it provides no guidance in this case. s
4. The Moving Defendants have not and cannot establissh that Pohl committed illegal acts.
The Moving Defendants allege that their torts are excused because Pohl allegedly violated
the Texas Rules governing lawyers in four ways: (1) practicing law in other jurisdictions without
a license; (2) sharing an office with non-lawyers; (3) illegally soliciting clients; and (4) failing to
protect confidential client information. Saee Nicholson Defendants’ Motion at 1; Kassab
Defendants’ Motion at 2. Although the Moving Defendants go to some length in their effort to
establish these allegations as a mattere of law, they have wholly failed to do so. At most, they have
raised a fact issue regarding wholfly irrelevant allegations.
Before addressing tyhe individual allegations relating to Pohl’s actions, it deserves
repeating: these allegCed actions were brought to the attention of the relevant authorities
through grievance a s filed with the State Bar of Texas, which dismissed the grievances.55 For
those grievancfefs that were appealed to the Board of Disciplinary Appeals, that Board rendered
findings tUhat “the Board has determined that the conduct you described in the grievance does
not violate the Texas Disciplinary Rules of Professional and affirms the dismissal.” The
contention that Pohl violated the Texas Rules governing lawyers has been determined, and the
55 See Grievance dismissal letters, attached as Exhibit T.
23
claim has failed. This Court should decline to rehear these allegations, as they have been resolved.
Furthermore, as set forth below, they are false.
a. Pohl did not engage in unauthorized practice of law.
The State Bar of Texas appropriately dismissed claims against Pohl krelating to the
unauthorized practice of law because Pohl at all times attempted to conform tlo the requirements
relating to practicing in states in which he was not licensed.56 Moreovcer, the process for filing
claims relating to the BP Matter did not even require that a licensesd attorney participate in the
filing.57
The materials that the Moving Defendants have submitted do not conclusively establish
that Pohl engaged in the unauthorized practice of law. Instead, to the extent that the question can
even be considered by this Court, given that the State Bar of Texas has finally resolved the issue,
there is substantial controverting evidence. Aaccordingly, the allegation does not provide a basis
on which to enter summary judgment in the Moving Defendants’ favor.
b. Pohl shared office space weith contractors and secretaries who worked for him full time.
The Moving Defendants afttack Pohl for sharing office space with non-lawyers. Here again,
the State Bar of Texas propeyrly dismissed the claim because Pohl employed everyone with whom
he shared an office, Cor they were a functional equivalent of an employee or a lawyer’s
representative.58 a
The maf fterials that the Moving Defendants have submitted do not support much less
conclusivUely establish that Pohl wrongfully shared office space with non-lawyers. Instead, to the
extent that the question can even be considered by this Court given that the State Bar of Texas has
56 Pohl Declaration, ¶ 17.
57 Id. ¶ 29.
58 Id. ¶ 14.
24
finally resolved the issue, there is substantial controverting evidence. Accordingly, the allegation
does not provide a basis on which to enter summary judgment in the Moving Defendants’ favor.
c. Pohl legally solicited his clients.
Pohl instructed all of those working for him as subcontractors never to illegkally solicit any
potential client.59 Pohl himself never intentionally directly or illegally solilcited any client or
clients.60 Pohl at all times attempted to adhere to the rules of the Statec Bar of Texas and other
relevant states regarding the solicitation of clients.61 s
The materials that the Moving Defendants have submitsted do not conclusively establish
that Pohl illegally solicited clients. Instead, to the extent that the question can even be considered
by this Court given that the State Bar of Texas has finally resolved the issue, there is substantial
controverting evidence. Accordingly, the allegation does not provide a basis on which to enter
summary judgment in the Moving Defendantsa’ favor.
d. Pohl reasonably protected client information.
Pohl testified in his depositioen regarding the reasonable steps he took to protect the client
information, confidential informaftion, and trade secrets that are the subject matter of this suit.62
At all times, Pohl strictly limyited access to the trade secrets, and he ensured that those who had
access to that informatiCon fully understood as part of their professional obligations the confidential
character of that a information.63 Pohl also testified that “numerous times throughout the
relationship,” hfef emphasized to Precision and its employees the importance of confidentiality.64
59 Id. ¶ 30.
60 Id. ¶
61 Id. ¶
62 Pohl Deposition, at 15:21-16:18, attached as Exhibit U.
63 Pohl Declaration ¶¶ 14-15, Exhibit A; see also Deposition of Scott Walker, at 283:17-284:22, 321:5-324:7, Exhibit
D; Deposition of Kirk Ladner, at 355:18–358:10, 372:7–374:24, 377:4–23, 501:3–502:18, Exhibit V; Deposition of
Steve Seymour, at 96:16-24, 223:1-20, Exhibit W.
64 Deposition of Michael Pohl, at 23:5-21, Ex. U.
25
The materials that the Moving Defendants have submitted do not conclusively establish
that Pohl failed to protect client information. Instead, to the extent that the question can even be
considered by this Court given that the State Bar of Texas has finally resolved the issue, there is
substantial controverting evidence. Accordingly, the allegation does not provide ak basis on which
to enter summary judgment in the Moving Defendants’ favor. l
e. Pohl legally obtained the materials at issue. c
The Moving Defendants also assert that Pohl cannot recover fosr their violations of TUTSA
because the materials at issue did not legally belong to him. Tshis allegation depends entirely on
the Moving Defendants’ failed arguments relating to the unauthorized practice of law and illegal
solicitation of clients. For the same reasons that those arguments fail, this challenge to Pohl’s
ownership of the materials at issue fails and does not provide a basis on which to enter summary
judgment in the Moving Defendants’ favor. a
Additionally, the Moving Defendants seem to suggest that Pohl cannot own his client
contracts if they are illegal. Howeveer, TEX. GOV’T CODE § 82.0651(a) indicates that an attorney-
client contract is voidable, not vfoid. There is no evidence that any of Pohl’s contracts were
declared void, as provided foyr in the barratry statute. TEX. GOV’T CODE § 82.0651(a). Thus, even
if the Moving DefendaCnts were correct factually on the barratry issue—and they are not—Pohl’s
contracts were still effective and worthy of protection. The Moving Defendants failed to establish
as a matter of lfafw that Pohl does not own the materials at issue.
InU any event, Pohl does not have to demonstrate how he acquired his engagement
agreements with his clients or his client files to pursue his claims. The agreements are clear on
their face. While Kassab claims to have relied upon the non-lawyers Walker and Ladner, and
Favre relied on Nicholson for the idea that Precision somehow owned Pohl’s files, the evidence
26
(and an ounce of common sense) does not support it. Walker repeatedly admitted that he knew
the attorney-client contracts, the computers containing Pohl’s files and any list of clients belonged
to Pohl.65 Mr. Ladner indicated that he believed those materials belonged to Pohl, questioned
Favre about it and was told to consult Nicholson. Nicholson told him that Pohl’ks contracts and
files did not belong to Pohl.66 However, in reality, Ladner had to concede thalt the contracts and
case files were all “Pohl’s stuff.”67 c
D. None of the Asserted Immunity Doctrines Apply. s
The Moving Defendants hope to cloak their tortious actsions in one variety or another of
immunity, variously asserting attorney immunity, judicial proceeding privilege, and immunity for
filing a grievance. None of these doctrines supplies the shield that the Moving Defendants hope
to hide behind.
Pohl sued the Moving Defendants for coanverting his property and misappropriating his trade
secrets. They argue that they are entitled to immunity because after they engaged in this wrongful
acquisition of property and informateion, they sought to profit from their torts by suing Pohl for
barratry and other claims. Texas fdoes not recognize any form of immunity for the tortious actions
of lawyers taken outside they attorney-client relationship and outside of the judicial process. As
hard as the Moving DCefendants may try to characterize their actions as being part of “judicial
proceedings” or as being part of their work as attorneys, that effort fails.
1. The aftftorney immunity doctrine does not apply.
TUhe common-law attorney-immunity defense applies to lawyerly work in “all adversarial
contexts in which an attorney has a duty to zealously and loyally represent a client” but only when
65 Deposition of Scott Walker, at 316-319; 327-329, Ex. D.
66 Deposition of Kirk Ladner, at 119:21-120:15, 127:5-25, 340:10-342:17, Exhibit V.
67 Id. at 350:11-351:21, 356:11-359:12.
27
the claim against the attorney is based on “the kind of conduct” attorneys undertake while
discharging their professional duties to a client. Taylor v. Tolbert, 644 S.W.3d 637, 646 (Tex.
2022). Where, as here, an attorney engages in conduct that is not “lawyerly work” or is “entirely
foreign to the duties of a lawyer” or falls outside the scope of client representatiokn, the attorney-
immunity defense is inapplicable. Id.; see also Haynes & Boone, LLP v. NFTDl, LLC, 631 S.W.3d
65, 67 (Tex. 2021); Landry’s, Inc. v. Animal Legal Defense Fund, 63c1 S.W.3d 40, 47 (Tex.
2021); Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 201s5).
Attorney immunity does not protect conduct s 
simply because attorneys often engage in that activity or because an attorney
performed the activity on a client’s behalf. Ratherr, the conduct must involve the
uniquely lawyerly capacity and the attorney’s skills as an attorney. For example, a
lawyer who makes publicity statements to the press and on social media on a client’s
behalf does not partake of the office, professional training, skill, and authority of an
attorney because anyone—including presls agents, spokespersons, or someone with
no particular training or authority at aall—can publicize a client’s allegations to the
media. Immunity attaches only if theM attorney is discharging “lawyerly” duties to his
or her client. 
Tolbert, 644 S.W.3d at 646 (footnotees omitted) (cleaned up).
The Texas Supreme Courft has held that two inquiries are relevant to an attorney-immunity
defense: “the type of conduyct at issue and the existence of an attorney–client relationship at the
time.” Youngkin v. HCines, 546 S.W.3d 675, 683 (Tex. 2018). The claims against the Moving
Defendants do not fall within the attorney-immunity doctrine because the conduct at issue does
not qualify as “f fthe kind of conduct in which an attorney engages when discharging his duties to
his clientU.” Canty Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015). The Moving
Defendants have not and cannot establish the existence of an attorney–client relationship at the
time of their wrongful conduct.
28
The Moving Defendants’ knowing purchase of stolen property before representation of a
client is neither within the scope of the client representation nor is it an activity undertaken in a
“uniquely lawyerly capacity.” See Landry’s, 631 S.W.3d at 47. The use of the information by the
Moving Defendants to solicit and advertise to obtain clients is not within the kscope of client
representation, because this conduct necessarily precedes the “meeting of thel minds” between a
potential client and attorney necessary to form an attorney–client relationcship. See Tanox, Inc. v.
Akin, Gump, Strauss, Hauer & Feld, L.L.P., 105 S.W.3d 244, 254–55s (Tex. App.—Houston [14th
Dist.] 2003, pet. denied). s 
The Moving Defendants attempt to address this issue by arguing the non-relevant point
that attorney immunity can apply prior to any litigation. While the doctrine can in certain
circumstances apply prior to litigation, that fact is not relevant here. Pohl asserts claims for
conduct, not just before litigation, but before thae Moving Defendants had a single client with whom
they could have the requisite attorney–client relationship. Tanox, Inc. v. Akin, Gump, Strauss,
Hauer & Feld, L.L.P., 105 S.W.3d e244, 254–55 (Tex. App.—Houston [14th Dist.] 2003, pet.
denied) (noting that attorney–clifent relationship cannot be formed prior to a “meeting of the
minds”). y
In sum, the MoCving Defendants cannot show that their wrongful actions were “within the
scope of client representation” and were “not foreign to the duties of a lawyer.” Youngkin, 546
S.W.3d at 682f. f Immunity arises only if a lawyer can establish as a matter of law that when he
engaged Uin his alleged wrongful acts, he was acting not 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, 631 S.W.3d at
47.
29
Because the Moving Defendants did not and cannot provide evidence of the existence of
an attorney–client relationship at the time of their wrongful actions and evidence that those actions
were within the scope of their representation, their request for summary judgment on the attorney-
immunity doctrine must be denied. The fact that their wrongful conduct of pukrchasing stolen
information was not the type of conduct undertaken in a “uniquely lawyerly caplacity” only further
supports this conclusion. c
2. The judicial proceedings privilege does not apply. s
The judicial proceedings privilege applies only to commsunications “in the due course of a
judicial proceeding” and the privilege protects against a claim for libel or slander. Landry’s, 631
S.W.3d at 46. Given that the basis of Pohl’s claim is not a communication made in the due course
of a judicial proceeding and given that Pohl has not sued for libel or slander, the judicial
proceedings privilege does not apply as a matater of law.
Kassab argues that even though Pohl’s claims do not assert claims for libel or slander, the
judicial proceedings privilege shoueld apply because Pohl’s claims arise somehow out of
communications. Pohl’s claims dfo not however, arise out of communications. They arise out of
theft. Misappropriation of ytrade secrets is not a form of communication, nor is conversion.
Kassab’s arguments faCil.
3. The judicial proceedings privilege does not apply. Section 17.09 of the Texas
Disciplicnary Rules does not apply
Although Kassab contends baldly that “it is undisputed that Pohl’s allegations of
wrongdoing are predicated on Kassab’s filing of grievances against Pohl,” Kassab Defendants’
Motion at 35, that is untrue. Instead, Pohl’s suit is predicated on the Defendants’ conversion of
his property and misappropriation of his trade secrets. The fact that Kassab subsequently used
those trade secrets and that property to file grievances does not trigger the protections of TEX. R.
30
DISC. P. 17.09. In short, that section does not apply to the claims asserted here, as they are based
on conversion and theft.
E. Pohl’s Claims Have Not Been Released
Nicholson erroneously contends that the Settlement Agreement that she repkeatedly ignored
and flagrantly breached released her from the claims that Pohl now asserts. Thlis argument fails.
As an initial matter, Nicholson has provided the Court with no adcmissible evidence of the
terms of the Settlement Agreement on which they rely. Althougsh the Amended Motion for
Traditional Summary Judgment purports to quote the termss of the confidential agreement,
Nicholson has not attached or verified the agreement itself. Without the Settlement Agreement as
evidence, the Court cannot enter summary judgment on the argument that it contains release
language that would effectively release the claims asserted here.
In addition, contrary to Nicholson’s ianterpretation of the language of the releases in the
Settlement Agreement, that language does not provide a release for future torts not yet committed
by the released parties at the time of tehe Settlement Agreement.
More importantly, howefver, the Settlement Agreement requires specific actions (in
addition to the return of docyuments) that Nicholson quite plainly violated. That is, Paragraph 27
of the Settlement AgreCement provides that “Claimants and Affiliates of Claimants promise and
agree not to make or cause to be made any claim, not to file or cause to be filed any complaint
(administrativef for otherwise), and not to file or cause to be filed any legal action against any of the
Lawyer RUeleasees [which includes Pohl].” Nicholson’s blatant violation of this provision
invalidates any contention that the Settlement Agreement Releases her from the claims Pohl asserts
here.
31
F. Pohl’s TUTSA Claim is not “Conclusively Negated”
Nicholson contends that Pohl’s TUTSA claim is “conclusively negated” because of the
absence of a confidentiality provision in Pohl’s agreement with Precision. This is not a
requirement of TUTSA, which simply requires “reasonable measures under the cirkcumstances” to
preserve confidentiality. This also ignores the “circumstance” of the special natlure of the attorney-
client relationship and the ability and often need for a lawyer to share mcaterials with employees,
consultants, and vendors who qualify as “lawyer representatives” usnder Rule 503 of the Texas
Rules of Evidence. s 
Moreover, Pohl has sworn that he took steps to protect and limit access to the trade secrets,
and he ensured that those who had access to that information fully understood as part of their
professional obligations the confidential character of that information.68
These steps include (and are corroboraated by Precision representatives):
• Pohl informed Precision and all of the staff of the confidential and privileged
nature of the informateion and instructed them to treat them accordingly.69
• Pohl maintained hfis office at the top of Hancock Bank – “the most secure location
on the coast. y ”70
• The buCilding had 24 hour/round the clock security.71
• The elevators were coded such that one could only get to one’s own floors.72
• fThere were security cameras at every floor.73
68 Pohl Declaration ¶¶ 14-15, Exhibit A.
69 Id.; Deposition of Scott Walker, at 283:17-284:22, Exhibit D; Deposition of Kirk Ladner, at 372:7–374:24, Exhibit
70 See Deposition of Scott Walker, at 283:17-284:22, Exhibit D; Deposition of Kirk Ladner, at 372:7–374:24, Exhibit
71 See Deposition of Scott Walker, at 283:17-284:22, Exhibit D.
72 See Deposition of Scott Walker, at 322:9-23, Exhibit D.
73 Id.
32
• The documents and computers were kept under “lock and seal.”74
• The engagement agreements were clearly labeled to identify them as contracts
between lawyers and clients.75
While Nicholson claims that the lists at issue here have been previously usekd as exhibits in
various depositions and hearings, she ignore the facts surrounding the limiteCd plroduction.
First, Pohl and Williamson were both lawyers who owed duties tco their clients and had a
proprietary interest in their own files. All of the defendants were “lawyer representatives” and had
a continuing responsibility to protect the confidential informatsion of both Pohl and Williamson
and the underlying clients. g
Second, all of the parties to the Mississippi laBwsuit already had the either possession (by
virtue of stealing Pohl’s files) or a proprietary iynterest in and in some cases possession of the
documents (Pohl and Williamson). Any limaited production simply went from one party who
already had the information to another party who had the information and did not expand
disclosure of privileged and confidential information beyond those that already had it.
Unsurprisingly, Defendanfts have offered no authority to support the assertion that merely
producing information from one party with continuing duties to protect it to another party who
already has the informaCtion and a continuing duty to protect it somehow waives confidentiality.
Equally important, and surprisingly absent from Kassab’s and Nicholson’s motion, are two
separate ordersf f issued in the Mississippi suit. On October 14th, 2016, Magistrate Judge John C.
Gargiulo Udenied Precision’s Motion for Protective Order where they sought to prevent discovery
of any of the “marketing lists” in their possession. In denying the motion, Judge Garguilo orders
the production of information but with very strict confidentiality protections, limiting who can
74 See Deposition of Scott Walker, at 283:17-284:22, Exhibit D.
75 Pohl Declaration ¶ 15, Ex. A.
33
even have access to the client-based information.76 This was followed up by a letter from Pohl’s
counsel Mr. Bailey.77
On March 22, 2017, Judge Garguilo issued a protective order that was sought by all parties
and approved as to form by all counsel. In that order, the Court defined “Confidentikal Information”
as including the names, addresses and telephone numbers of the Pohl and/orl Williamson along
with amount of gross recovery and fees received and placed strict protectiocns on that information.78
While the Order indicated that it did not apply to previously produceds documents or to Exhibit 70
(which had been previously publicly filed and merely contasined information about totals of
categories of clients and did not identify individual clients), it specifically held that it did apply to
the underlying data to Exhibit 70 (the individual client information) and to any supplements of
Exhibit 70 and to the underlying data to the supplements.79 Accordingly, to the extent even needed
given the continuing duties of the parties and athe fact that all parties already had the information,
the Court reinforced the confidentiality of all the underlying client data by specifically holding it
fell within the scope of the Confidenteiality Order.
Finally, even ignoring allf of the above, Defendants have no summary judgment evidence
that the client lists and client ycontact information is the same or even overlaps. Instead, they simply
erroneously assert that Cclient lists were submitted without the protection of a protective order. Far
from conclusively establishing anything at all, Nicholson has at most raised a potential fact issue
relative to somfef of the materials that are the subject of the suit.
76 See October 14, 2016 Order from Mississippi Court, attached as Exhibit X.
77 See October 27, 2016 email and letter from Counsel to Pohl, attached as Exhibit Y.
78 See Exhibit 21 to the Nicholson Motion, at 1-2.
79 Exhibit 70 is attached hereto as Exhibit Z.
34
G. Pohl’s ownership has not been disproven.
Kassab’s allegations regarding the ownership of Pohl’s trade secrets and information are
self-defeating. Kassab states:
The claimant must also demonstrate that it is “the person or entity in whokm or in
which rightful, legal, or equitable title to, or the right to enforce rights ine, the trade
secret is reposed.” TEX. CIV. PRAC. & REM. CODE § 134A.002(3-a)l. Similarly,
“[a] plaintiff who has not shown title or some other right to possession of the
property allegedly converted may not maintain a suit in convercsion.” Catania v.
Garage de Le Paix, Inc., 542 S.W.2d 239, 242 (Tex. Civ. App.—rTyler 1976, writ
ref'd n.r.e.). s
Kassab Motion at 58. However, Kassab’s entire theory regarding why these requirements are not
met is because he alleges that Pohl’s trade secrets and other information constitute part of the client
file, which they contend belongs to the client, and must be turned over to the client upon the client’s
demand. See Kassab’s Motion, at 58-59. But even if that were the entire story, that would not
mean that Pohl did not have a right to possession of the client file up until his clients demanded he
turn over the contents of their client file to them. There is no evidence of any such demand that
would limit Pohl’s possessory rights.e However, as laid out in more detail in Pohl’s Response to
the No-Evidence Motions for Sumfmary Judgment, there is evidence demonstrating that Pohl is the
rightful owner of misappropyriated and converted files and information.80
H. Pohl’s AllegeCd Damages are Recoverable
In their finaal effort to prevent Pohl’s claims from being presented to a jury, the Moving
Defendants relyf on inapplicable case law to argue that Pohl is not entitled to recover for the injuries
that theyU inflicted. Relying on standard case law relating to the availability of attorney’s fees
arising during the pursuit of the case at issue, the Moving Defendants argue that Pohl cannot claim
80 Pohl incorporates by reference both the arguments and evidence on the ownership of the information contained in
his Response to the No-Evidence Motions for Summary Judgment that is filed on the same day as this Response.
35
as damages the harm he suffered in being forced to defend himself from the Moving Defendants’
failed barratry actions.
As the Moving Defendants point out, a plaintiff in a TUTSA action is entitled to “the value of
the plaintiff’s lost profits, the defendant’s actual profits from the use of the seckret, the value a
reasonably prudent investor would have paid for the trade secret, the developmentl costs the defendant
avoided by the misappropriation, and a reasonable royalty.” Sw. Energy Prodt. Co. v. Berry-Helfand,
491 S.W.3d 699, 710–11 (Tex. 2016). In this case, the fees and expensses incurred by Pohl to defend
against the scurrilous actions brought by the Moving Defendants fall squarely within the category of
actual loss damages that are expressly recoverable under the eterms of TUTSA explicitly authorizes
recovery of. TEX. CIV. PRAC. & REM. CODE § 134A.004(au) (providing that TUTSA damages include
“the actual loss caused by misappropriation”).81 
Furthermore, the only case the Moving Defiendants cite relating to the availability of attorneys’
fees from a prior case as damages has been directly questioned on that point by the Texas Supreme
Court. See Martin-Simon v. Womack, 68 S.W.3d 793 ,797-98 (Tex. App.—Houston [14th Dist.] 2001,
pet. denied), declined to extend by Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. National Development
and Research Corp., 299 S.W.3d 106, 120 (Tex. 2009). The Moving Defendants’ citation of the case
for the broad proposition that attorneys’ fees in a prior case are not available as damages misstates the
governing precedent. Furthermore, subsequent caselaw has confirmed that attorneys’ fees from prior
litigation may be rceciovered as actual damages in a subsequent suit in certain circumstances. See Dixon
Fin. Services,o Ltd. v. Chang, 325 S.W.3d 668, 678 (Tex. App.—Houston [1st Dist.] 2010, pet. denied).
Finally, Defendants fail to even address the other damages sought by Pohl. One component of
damages is the value a reasonably prudent investor would have paid for the trade secret. Here, the
evidence demonstrates that Defendants believed Pohl’s protected information was worth $6 million.
81 Pohl also seeks other types of damages in relation to his TUTSA claim.
36
Both Mr. Walker and Mr. Ladner testified hearing Favre and Nicholson discuss on multiple occasions
that Pohl’s files, and specifically the identity of Pohl’s clients, were worth $6mm.82 Pohl as owner of
the assets confirms this value.83 Mr. Favre confirmed that Pohl’s information had independent value
and was one of Precisions “most valuable asset” such that the value of the entire company would be
substantially reduced if they were disclosed.84
III. CONCLUSION t
For the foregoing reasons, Plaintiffs Michael Pohl and Law Otffices of Michael A. Pohl
respectfully request that the Kassab Defendants’ Motion for Traditional Summary Judgment and
the Nicholson Defendants’ Amended Motion for Traditional eSummary Judgment be in all respects
denied. u
82 See Deposition of Scott Walker, at 328:10-16 (testifying about how he had heard Pohl’s client list was worth $6
million), attached as Exhibit D; Deposition of Kirk Ladner, at 314:10–315:18, 343:7-344:17 (recalling that he was
told that the boxes containing Pohl’s information were worth $6 million), attached as Exhibit V.
83 Pohl Declaration ¶ 27, Ex. A.
84 See Exhibit 50 to the Kassab Motion.
37
Dated: September 12, 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 12th day of September, 2022.
M /s/ Jean C. Frizzell
 Jean C. Frizzell
38
Automated Certificate of eService
This automated certificate of service was created by the efiling system. The filer served this
document via email generated by the efiling system on the date and to the persons listed below.
The rules governing certificates of service have not changed. Filers must still provide a certificate
of service that complies with all applicable rules.
Suni Blue on behalf of Jean Frizzell e
Bar No. 7484650 C
sblue@reynoldsfrizzell.com t
Envelope ID: 68182991 r
Status as of 9/13/2022 8:05 AM CST
Case Contacts
Name BarNumber Email sTimestampSubmitted Status
Solace Southwick ssouthwick@reynoldsfrizzell.com 9/12/2022 11:55:09 PM SENT
Zandra EFoley zfoley@thompsoncoe.com r 9/12/2022 11:55:09 PM SENT
Andrew Johnson ajohnson@thompsoncoe.com 9/12/2022 11:55:09 PM SENT
Andrew J. Sarne asarne@krcl.com 9/12/2022 11:55:09 PM SENT
Benjamin Ritz britz@thompsoncoe.conm 9/12/2022 11:55:09 PM SENT
Kathryn Laflin KLaflin@KRCL.com 9/12/2022 11:55:09 PM SENT
Murray JFogler mfogler@foglerbrrar.com 9/12/2022 11:55:09 PM SENT
Murray Fogler mfogler@fbfog.com 9/12/2022 11:55:09 PM SENT
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 9/12/2022 11:55:09 PM SENT
Larry Newsom lnewsom@fkrcl.com 9/12/2022 11:55:09 PM SENT
Jason M.Ciofalo jason@ciofalolaw.com 9/12/2022 11:55:09 PM SENT
Chris C.Pappas cpappas@krcl.com 9/12/2022 11:55:09 PM SENT
Todd Taylor titaylor@jandflaw.com 9/12/2022 11:55:09 PM SENT
Harris Wells fhwells@reynoldsfrizzell.com 9/12/2022 11:55:09 PM SENT
Todd Taylor ttaylor@jandflaw.com 9/12/2022 11:55:09 PM SENT
Lawyer Wade y lawyerwade@hotmail.com 9/12/2022 11:55:09 PM SENT
Scott M.Favre scott@favrepa.com 9/12/2022 11:55:09 PM SENT
Andrea Mendez C andrea@kassab.law 9/12/2022 11:55:09 PM SENT
Lance Kassab  lance@kassab.law 9/12/2022 11:55:09 PM SENT
David Kassab a david@kassab.law 9/12/2022 11:55:09 PM SENT
Nicholas Pierce c nicholas@kassab.law 9/12/2022 11:55:09 PM SENT
Dale Jefferson f i 10607900 jefferson@mdjwlaw.com 9/12/2022 11:55:09 PM SENT
Raul Herman Suazo o 24003021 suazo@mdjwlaw.com 9/12/2022 11:55:09 PM SENT
Kevin Graham Cain 24012371 cain@mdjwlaw.com 9/12/2022 11:55:09 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 9/12/2022 11:55:09 PM SENT
L Kassab lance@kassab.law 9/12/2022 11:55:09 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 9/12/2022 11:55:09 PM SENT
Misty Davis mdavis@reynoldsfrizzell.com 9/12/2022 11:55:09 PM SENT
Non-Party Witness Billy Shepherd bshepherd@spcounsel.com 9/12/2022 11:55:09 PM SENT
Deidre Hicks GWS_GROUP@spcounsel.com 9/12/2022 11:55:09 PM SENT
E. MarieJamison jamison@wrightclosebarger.com 9/12/2022 11:55:09 PM SENT
Jessica Z.Barger barger@wrightclosebarger.com 9/12/2022 11:55:09 PM SENT
Katie Budinsky kbudinsky@krcl.com 9/12/2022 11:55:09 PM ERROR
D Kassab david@kassab.law 9/12/2022 11:55:09 PM SENT"