filing_id,date,doc_type,party,description,doc_type_detail,procedural_posture,chain,outcome,phase,filename,relief_requested,full_text
22,2021-12-07,MSJ,Pohl,Pohl’s MSJ on Kassab Counterclaims,Plaintiffs' Motion for Summary Judgment on Defendants' Counterclaims for Civil Barratry,"Pohl's dispositive motion seeking traditional summary judgment on Kassab's counterclaims for civil barratry based on 242 assigned claims. Filed December 7, 2021, after Kassab's Fourth Amended Answer. This is the principal motion in the CC-1 chain, which was ultimately granted. Attorney: Jean C. Frizzell of Reynolds Frizzell LLP.",CC-1,GRANTED,Phase 2,2021-12-07_MSJ_Pohl-MSJ-on-Kassab-Counterclaims_FILED.pdf,Grant summary judgment dismissing Kassab's counterclaims for civil barratry,"12/7/2021 4:11 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 59800424
By: Ozuqui Quintanilla
Filed: 12/7/2021 4:11 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’ MOTION FOR SUMMARY JUDGMENT
ON DEFENDANTS’ COUNTERCLAIMS
Plaintiffs Michael Pohl and Law Officae of Michael A. Pohl (collectively “Pohl”) move for
summary judgment on the Defendants’ counterclaims for civil barratry.
SU e MMARY OF ARGUMENT
Defendants Lance Christfopher Kassab and Lance Christopher Kassab, P.C., d/b/a The
Kassab Law Firm (collectiveyly “Kassab”) assert counterclaims that have already been adjudicated.
Kassab’s clients previoCusly brought these very claims and lost them. Kassab’ counterclaims fail
because they are barred by res judicata, they are not revived by the savings provision of the Texas
Civil Practice fafnd Remedies Code and are accordingly time-barred, and because the purported
assignmeUnts of the claims are invalid and unenforceable.
After purchasing Pohl’s stolen client lists and contact information, Kassab solicited Pohl’s
clients to bring barratry claims. When courts (including this one) found those barratry claims to
be barred by limitations, Kassab obtained purported “assignments” of those claims and asserted
them as counterclaims in this action, contending they had been “revived” pursuant to the savings
provision of Civil Practices and Remedies Code section 16.069. The statutory requirements of
section 16.069 are not met for multiple reasons, and Kassab’s effort to revitalize the stale claims
fails. In addition, civil barratry claims are not legally assignable under Texas lawk. Like a DTPA
claim, a barratry claim is a punitive statutory cause of action that the Texas llegislature has not
explicitly made assignable, and they cannot be freely assigned. Furthcermore, assignments of
causes of action that are made to increase or prolong litigation, and wshich are made in violation of
ethical restrictions on lawyers having an interest in clients’ causses of action—like the assignments
to Kassab here—violate Texas public policy and are void.
STATEMENT OF F BACTS
Pohl is a lawyer who represented various persons and entities in claims arising from motor
vehicle accidents and the British Petroleum Daeepwater Horizon oil spill.1 Pohl engaged Precision
Marketing Group, LLC (“Precision”) to provide public relations services, to gather and preserve
evidence, and to screen and liaise witeh Pohl’s clients and prospective clients.2 By 2014, Pohl had
ceased all efforts to secure additiofnal clients in relation to the Deepwater Horizon oil spill.3
While working for Pyohl, Precision gained access to Pohl’s confidential and proprietary
information and propeCrty, including trade secret materials.4 Defendant Scott Favre, individually
or through Scott M. a Favre PA, LLC (collectively “Favre”), is the managing member of Precision.5
Favre took copfifes of Pohl’s information, stole Pohl’s computers, and misappropriated data.6
1 Sworn Declaration of Michael A. Pohl (the “Pohl Declaration”) ¶ 3, attached as Ex. A.
2 Id. ¶ 4.
3 Id. ¶ 5.
4 Id. ¶¶ 6–7.
5 Id. ¶ 7.
6 Id. ¶¶ 6–8.
In November 2016, Kassab—who specializes in suing other lawyers—purchased Pohl’s
stolen confidential information and property from Favre (with the assistance of other Defendants)
paying $250,000, plus bonuses.7 Kassab took possession of at least some of the information and
property in December 2016.8 Kassab valued Pohl’s stolen and misappropriatked confidential
information and property because, after purchasing it, he used it to contact and slolicit Pohl’s clients
and prospective clients9 and convinced some of them to bring barratry actiocns against Pohl in various
courts in Harris County (the “Barratry Claims”). Kassab’s purchase ansd use of Pohl’s confidential
information and property constitute conversion, violations of tshe uniform trade secrets act, and
because he was acting with others with tortious purpose, conspiracy.
Pohl filed this suit against Kassab and the other Defendants on August 28, 2018.10 At the
time, two lawsuits involving the Barratry Claims were ongoing—the Brumfield Case (which this
Court heard) and the Gandy Case.11 The plaaintiffs in the Brumfield and Gandy Cases alleged,
among other claims, that Pohl committed barratry when soliciting them to bring claims concerning
the Deepwater Horizon oil spill.12 Thee Brumfield and Gandy cases did not go well for Kassab; at
the time Pohl filed this lawsuit, thfe trial courts had granted summary judgment on the vast majority
of the barratry claims, on bayses including limitations, in both cases.13 Since that time, the trial
courts have entered judCgment against all of Kassab’s clients on all claims, and the First Court of
7 November 10, 2016, Agreement, attached as Exhibit 1 to the Pohl Declaration.
8 December 7, 201f6, Email, attached as Exhibit 2 to the Pohl Declaration.
9 Kassab admits using Pohl’s client files (while erroneously claiming that they belonged to Precision) 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 Ex. B.
10 See generally Pohl’s Original Petition, filed August 28, 2018.
11 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 (the “Brumfield Case”); 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 (the “Gandy Case”).
12 See Plaintiffs’ Fourth Amended Petition, at 74–76, filed on March 15, 2019, attached as Ex. C (filed in Brumfield
Case); Plaintiffs’ Third Amended Petition, at 63–65, filed on June 8, 2018, attached as Ex. D (filed in Gandy Case).
13 See Court Order, dated July 31, 2018, attached as Ex. E (granting take nothing summary judgment against all but
six plaintiffs in Brumfield Case on claims including civil barratry claim); see also Court Order, dated June 26, 2018,
attached as Ex. F (granting take nothing summary judgment on claims in Gandy Case including civil barratry claim).
Appeals has affirmed both judgments in separate opinions.14 The cases are pending on petitions
for review to the Supreme Court of Texas.15
Evidently dissatisfied with the lack of a return on his $250,000 investment, Kassab devised
a scheme to try to circumvent the adverse rulings of this Court and the probate cokurt. Sometime
after Pohl filed the current lawsuit, Kassab apparently obtained from 242 of hlis clients “Limited
Assignment[s]” (the “Assignments”) of the very same barratry claims Kascsab had previously filed
on behalf of those clients.16 All of 242 Assignments reflect the idsentical date—September 28,
2018—and they purport to assign to Kassab “any and all basrratry claims or causes of action
against” Pohl.17 Even accepting the September 28 date reflected on all 242 Assignments as
accurate, by that date, the trial courts had already adjudicated all but two18 of the Barratry Claims.19
Kassab contends that the consideration for the Assignments of his own clients’ claims was
“[a]dditional legal work and the opportunity toa make the client’s case viable.” Although the cases
originally brought by his clients remained pending, Kassab did not substitute in as plaintiff, nor
did he otherwise notify this Court, ethe probate court, or the appellate courts that the original
plaintiffs had purportedly assignefd the Barratry Claims to him.20 The cases are currently pending
on petition for review to they Texas Supreme Court, and Kassab has not notified that Court that
he—rather than the listCed parties—owns a significant number of the pending claims.
14 See Brumfield v. Williamson, --- S.W.3d ---, 01-19-00336-CV, 2021 WL 2149335, at *32 (Tex. App.—Houston
[1st Dist.] May 27f, 2021, pet. filed); Gandy v. Williamson, --- S.W.3d ---, 01-19-00335-CV, 2021 WL 2149833, at *1
(Tex. App.—Houston [1st Dist.] May 27, 2021, pet. filed).
15 Id.
16 Kassab Depo., at 10:13–12:11, attached as Ex. G; Kassab Depo. Exhibit 1, attached as Ex. H (stating Assignments
were effective after this lawsuit was filed). See also Kassab Depo., at 15:6–9 (confirming Kassab brought claims on
behalf of Assignors) & 17:10–19 (confirming Assignors were clients of Kassab at time they executed Assignments);
see also Kassab’s First Amended Objections and Responses to Pohl’s Discovery, at 28, attached as Ex. I.
17 See, e.g., Ex. J (example Assignments [Kassab_079806, Kassab_079885, Kassab_079942]).
18 The Barratry Claims assigned by Assignors Gloria Clemons and Wilber Riggs were resolved at a later date. See
Court Order, dated June 3, 2019, attached as Ex. K (granting judgment on remaining six plaintiffs’ claims and
disposing of “entire case”) (filed in Brumfield Case).
19 Kassab Depo., at 20:2–19 (testifying that all Assignments came from Plaintiffs in the Brumfield and Gandy cases).
20 See, e.g., Kassab Depo., at 20:20–21:6 (confirming Kassab did not notify appellate court of Assignments).
Kassab’s attempt to revive the failed Barratry Claims does not succeed for a number of
reasons, and summary judgment on Kassab’s counterclaims is appropriate.
ARGUMENT AND AUTHORITIES
I. Kassab’s counterclaims are barred by res judicata. k
Kassab admits that his counterclaims are the very same claims as thosle resolved by prior
final judgments on the merits.21 Res judicata applies to such claims, can t d the prior judgments
dismissing the Barratry Claims on the basis of limitations preclude Ksassab from re-litigating them
through his counterclaim in this lawsuit. 
“Res judicata prevents parties and those in privity with them from relitigating a case that a
competent tribunal has adjudicated to finality.” Houtex Ready Mix Concrete & Materials v. Eagle
Const. & Envtl. Services, L.P., 226 S.W.3d 514, 518 (Tex. App.—Houston [1st Dist.] 2006, no
pet.). “Res judicata requires: (1) a prior final judgment on the merits by a court of competent
jurisdiction, (2) identity of parties or those in privity with them, and (3) a second action based on
the same claims that were raised or ceould have been raised in the first action.” Id. at 519.
A judgment is final for pfurposes of res judicata even if it is appealed. See Gonzalez v.
Guilbot, 315 S.W.3d 533, 53y6 n.3 (Tex. 2010). A decision based on the statute of limitations is a
decision on the merits.C See Igal v. Brightstar Info. Tech. Group, Inc., 250 S.W.3d 78, 90 (Tex.
2008); Livingston va. U.S. Bank Nat’l Ass’n, 02-19-00185-CV, 2020 WL 1646741, at *3 (Tex.
App.—Fort Wofrth Apr. 2, 2020, no pet.) (“the fact that the first suit was resolved based on what
AppellanUts contend was a “procedural device”—statute of limitations—has no bearing on the
preclusive effect of res judicata.”). A party is in privity with a party to a prior action when the
party is “a successor-in-interest, deriving its claim through a party to the prior action.” Samuel v.
21 See Kassab Depo., at 20:2–19, attached as Ex. G.
Fed. Home Loan Mortg. Corp., 434 S.W.3d 230, 235 (Tex. App.—Houston [1st Dist.] 2014, no
pet.); Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 653 (Tex. 1996) (finding successors in interest
were in privity with plaintiffs to prior lawsuit).
Kassab’s counterclaim satisfies all three elements of res judicata. First,k there are final
judgments on the merits for Assignors’ Barratry Claims—those claims were rlejected by the trial
courts (including this Court) which issued final judgments stating that Acssignors take nothing on
their claims.22 Although those judgments are currently before the sSupreme Court of Texas on
petitions for review,23 the pendency of those petitions does not asffect the finality of the judgments
for purposes of res judicata. See Gonzalez, 315 S.W.3d at 536 n.3.
Second, Kassab is not merely in privity with the Assignors, he is actually reasserting their
failed claims. “Privity” can hardly be challenged in this circumstance. Given that Kassab is “a
successor-in-interest, deriving [his] claim tharough a party to the prior action,” privity is well-
established. Samuel, 434 S.W.3d at 235. 
Third, Kassab’s counterclaime is an “action based on the same claims that were raised or
could have been raised in the firstf action.” Houtex, 226 S.W.3d at 519. Again, Kassab admits that
the Barratry Claims in Kassayb’s counterclaim are the same claims asserted and rejected in the prior
actions.24 C
22 See Court Order, dated July 31, 2018, attached as Ex. E (granting take nothing summary judgment against all but
six plaintiffs on cflaims including the civil barratry claim) & Court Order, dated June 3, 2019, attached as Ex. K
(granting summary judgment on remaining six plaintiffs’ claims and disposing of “entire case”) (both filed in
Brumfield Case); see also Court Order, dated June 26, 2018, attached as Ex. F (granting take nothing summary
judgment on multiple claims including the civil barratry claim) & Court Order, dated June 24, 2019, attached as Ex.
L (granting non-suit on remaining alternative negligence claims and stating that “final judgment is entered”) (both
filed in Gandy Case). The orders in the initial partial summary judgment rulings from the two courts became final
upon the courts issuing orders that resolved the remaining issues in the respective cases. See Newco Drilling Co. v.
Weyand, 960 S.W.2d 654, 656 (Tex. 1998).
23 See Brumfield v. Williamson, --- S.W.3d ---, 01-19-00336-CV, 2021 WL 2149335, at *32 (Tex. App.—Houston
[1st Dist.] May 27, 2021, pet. filed); Gandy v. Williamson, --- S.W.3d ---, 01-19-00335-CV, 2021 WL 2149833, at *1
(Tex. App.—Houston [1st Dist.] May 27, 2021, pet. filed).
24 See Kassab Depo., at 20:2–19, attached as Ex. G (confirming that the Barratry Claims Kassab was assigned had
been asserted on behalf of the Assignors in prior litigation).
Because the Assignors’ Barratry Claims are subject to final judgments, Kassab is in privity
with the Assignors, and Kassab’s counterclaims assert Assignors’ Barratry Claims that have been
resolved by final judgments, res judicata applies and prevents Kassab from recovering on his
counterclaims. k
II. Kassab’s counterclaims are barred by limitations. C l
Kassab’s counterclaims for civil barratry are barred by limitatiocns because they accrued
more than four years before Kassab filed the counterclaims. Kasssab does not dispute that the
underlying Barratry Claims are barred by limitations; instead, he asserts that section 16.069 of the
Civil Practice and Remedies Code revives claims purportedly assigned to him. Section 16.069
does not revive the claims.
As fully argued in both the Brumfield Case and the Gandy Case, a claim for barratry
accrues when a potential client is improperly solicited. See Gandy v. Williamson, --- S.W.3d ---,
01-19-00335-CV, 2021 WL 2149833, at *13–14 (Tex. App.—Houston [1st Dist.] May 27, 2021,
pet. filed). The date of a client’s esignature on a contract can be used to demonstrate when
solicitation occurred and that a clfaim for barratry accrued prior to the date of that contract. See id.
at *14. Claims for civil barryatry are subject to a statute of limitations of up to four years. See id.
at *12–13. If a claimaCnt alleging barratry did not enter into a contract as the result of the alleged
barratry, the claim afor barratry is governed by a two-year limitations period. See id. at *12; see
also TEX. GOVf ’fT CODE § 82.0651(c).
AUs Pohl established in the Brumfield and Gandy cases, all but two of the alleged
Assignors25 signed contracts no later than May 2013.26 Accordingly, any solicitation must have
25 Those Assignors are Gloria Clemons and Wilber Riggs.
26 Gandy v. Williamson, --- S.W.3d ---, 01-19-00335-CV, 2021 WL 2149833, at *7 (Tex. App.—Houston [1st Dist.]
May 27, 2021, pet. filed); Brumfield v. Williamson, --- S.W.3d ---, 01-19-00336-CV, 2021 WL 2149335, at *7 (Tex.
App.—Houston [1st Dist.] May 27, 2021, pet. filed).
occurred no later than May 2013, which is more than five years before Kassab filed his
counterclaims. Regardless of whether a two-year or four-year statute of limitations applies, the
Barratry Claims were barred no later than May 2017—prior to the initiation of this lawsuit or
Kassab asserting his counterclaim.27 k
It is not disputed that Assignors Gloria Clemons and Wilber Riggs ldid not enter into
contracts with Pohl and that they could not have been solicited after 2014c.28 Thus, under the two-
year statute of limitations applicable to a barratry claim not resulting ins a contract, claims stemming
from the alleged solicitation of Assignors Gloria Clemons ands Wilber Riggs are barred by the
statute of limitations running no later than 2016. See Gandy, 2021 WL 2149833, at *12.
A. Section 16.069 does not apply to Kassab’s counterclaim.
Kassab contends that section 16.069 of the Civil Practice and Remedies Code revives his
counterclaim despite the applicable statute of li r mitations.29 That statute provides that:
If a counterclaim or cross claim arises out of the same transaction or occurrence
that is the basis of an action, a paorty to the action may file the counterclaim or cross
claim even though as a separaete action it would be barred by limitation on the date
the party’s answer is requirecd.
TEX. CIV. PRAC. & REM. CODE § 16.069(a).
There are at leaspt three reasons why section 16.069 does not apply to Kassab’s
counterclaim. First, the Barratry Claims that make up the counterclaims, do not arise out of the
same transactionsc or occurrences that are the bases for Pohl’s action as required by the statute.
Second, Kassoab did not assert a valid counterclaim within the 30-day time limit required. And
27 See generally Pohl’s Original Petition (filed August 28, 2018).
28 Compare Defendants’ Motion for Summary Judgment on Remaining Six Plaintiffs’ Claims, at 1, 4 (dated April 26,
2019), attached as Ex. M (arguing that no contracts were entered into and “the remaining six Plaintiffs could not have
been solicited by Pohl or Williamson, to the extent they were solicited at all, later than 2014”), with Certain Plaintiffs'
Response to Defendants’ Motion for Summary Judgment on Six Plaintiffs Claims, at 2, 5–6 (dated May 24, 2019),
attached as Ex. N (not disputing that no contracts were entered and that alleged solicitation occurred no later than
2014) (both filed in Brumfield Case). See also Pohl Declaration ¶ 5, attached as Ex. A.
29 See Kassab’s Fourth Amended Answer and Counterclaim, at 12 (filed Oct. 13, 2021) (“Kassab’s Counterclaim”).
third, section 16.069 cannot be used to revive stale claims assigned after a lawsuit is commenced.
The purpose of section 16.069—to protect against a tactical delay of a lawsuit until an adversary’s
potential counterclaim grew stale—would be upended if a claim assigned after a lawsuit was
initiated could trigger the section’s provisions. k
1. The Barratry Claims do not arise of out of the s
amle transaction or
occurrence as Pohl’s claims.
Section 16.069 “is a savings clause, ‘intended to prevent a plainr itiff from waiting until an
adversary’s valid claim arising from the same transaction wasD barred by limitations before
asserting his own claim.’” Pitts & Collard, L.L.P. v. Schechtser, 369 S.W.3d 301, 323–24 (Tex.
App.—Houston [1st Dist.] 2011, no pet.) (citation omitrted); TEX. CIV. PRAC. & REM. CODE §
16.069(a) (requiring that “a counterclaim or cross claim arises out of the same transaction or
occurrence that is the basis of an action”). To dletermine whether this requirement is satisfied,
courts use a “logical relationship test,” whiMch “is met when the same facts, which may or may not
be disputed, are significant and logicallyo relevant to both claims.” Schechter, 369 S.W.3d at 324.
In other words, “[t]he essential factsc on which the counterclaim is based must be significantly and
logically relevant to both claims.” Smith v. Ferguson, 160 S.W.3d 115, 120 (Tex. App.—Dallas
2005, pet. denied).
The facts “significant and logically relevant” to the purportedly assigned claims for civil
barratry are in noc way relevant to Pohl’s claims of conversion and theft of trade secrets. The facts
essential to the Barratry Claims—determining whether Pohl improperly solicited the Assignors in
2012–2014—are not significant or relevant to Pohl’s claims regarding Kassab’s 2016 purchase
and subsequent use of Pohl’s stolen property. Because Kassab’s counterclaims do not arise out of
the same transaction or occurrence as Pohl’s claims, section 16.069 does not apply.
Courts have refused to apply section 16.069 in cases involving much more related claims
than the counterclaims Kassab asserts. In Freeman v. Cherokee Water Co., the court held that a
claim requesting interpretation of a particular provision in a deed and a counterclaim attacking the
validity or legality of the entire deed did not satisfy the logical relationship test. k See 11 S.W.3d
480, 483 (Tex. App.—Texarkana 2000, pet. denied); cf. also Wright v. Matthewls, 26 S.W.3d 575,
577 (Tex. App.—Beaumont 2000, pet denied) (finding that counterclaicm for breach of a sales
contract and action to quiet title did not arise “out of same transactsion or occurrence,” because
quiet title claim arose out of filing of contract in property recordss, not the contract itself).
Similarly, in T&C Constr., Ltd. v. Brown Mech. Services, Inc., the First Court of Appeals
applied the logical relationship test to a dispute between a contractor and subcontractor involving
two projects (Project 1 and Project 2) between the parties. 01-19-00041-CV, 2020 WL 3866659,
at *5–6 (Tex. App.—Houston [1st Dist.] Jauly 9, 2020, no pet.). The jury found that the
subcontractor was overpaid $14,000 in relation to Project 1 and it was owed $8,000 for Project 2.
Id. at *2–3. The contractor allegedely withheld payment on Project 2 to compensate for the
overpayment on Project 1—the fcommunication of this justification to the subcontractor was
disputed. Id. The subcontrayctor sued the contractor for breach of the Project 2 contract. Id. at *2.
The contractor respondCed with a counterclaim for unjust enrichment “for the remaining alleged
overpayment, $6,609.75” that resulted from subtracting the amount owed on Project 2 from the
overpayment ofnf Project 1. Id. The court found that section 16.609 did not apply because:
[CUontractor]’s claim for unjust enrichment depended on evidence regarding the
payments made on Project 1. [Subcontractor]’s claim for breach of contract
depended on evidence about payments made for a separate job: Project 2. Under
the circumstances presented here, the logical relationship test is not satisfied
because the same facts are not significant and logically relevant to both claims.
Id. at *6.
10
The facts essential to determining whether Pohl improperly solicited the Assignors in
2012–2014 have no bearing on Kassab’s conduct starting in 2016.30 Kassab cannot plausibly argue
that the factual bases for his claims—separated in time by years, involving different parties, and
sharing no common elements of proof—“arise[] out of the same transaction or occkurrence.” TEX.
CIV. PRAC. & REM. CODE § 16.069(a).
Because the same facts are not significant and logically relevant tco both Pohl’s claims and
Kassab’s counterclaim, the logical relationship test is not met, and sesction 16.069 does not apply.
2. Kassab did not assert a valid counterclasim within the time limit required
under section 16.069. s
To revive a claim under section 16.069, it must be arsserted as a counterclaim or cross claim
“not later than the 30th day after the date on which
the party’s answer is required.” TEX. CIV.
PRAC. & REM. CODE § 16.069(b). Kassab’s allegaltion of unspecified “assigned barratry claims”—
without any indication of who assigned thMe claims or fair notice of the facts giving rise to the
claims—does not satisfy the requiremeont to assert a counterclaim within the time prescribed by
section 16.069. c
In Rogers v. Ardella Veigel Inter Vivos Tr. No. 2, the court looked to the requirements of
Rule 47 of the Texas Rules of Civil Procedure to determine whether a party filed a counterclaim
within the period required by section 16.069. See 162 S.W.3d 281, 289 (Tex. App.—Amarillo
2005, pet. deniedc). The court noted that to be a counterclaim, the pleading must provide “fair
notice,” meaning “the allegations must be sufficient to inform a reasonably competent attorney of
the nature and basic issues of the controversy and of the potentially relevant evidence.” Id.
Because there was not sufficient fair notice provided by the pleading to comply with Rule 47, the
court found that section 16.069 did not apply to revive the counterclaims. Id. at 289–90.
30 See Pohl’s First Amended Petition, at 5–12, filed on Nov. 30, 2018 (describing the factual bases for Pohl’s claims).
11
Kassab did not provide fair notice of his counterclaims within the 30-day period required
by section 16.069(b). His counterclaims are devoid of any of the facts giving rise to the claims,
and Kassab does not identify any of the “242 claimants” who originally held the Barratry Claims.31
Kassab does not incorporate any prior factual discussion into his counterclaim.32 kNor could Pohl
reasonably infer when Kassab filed his counterclaim that the factual discussionl that was included
formed the basis of the counterclaim—the allegations appear instead to bec an explanation for why
Kassab believes the lawsuit is retaliatory.33 Until he obtained copiess of the Assignments through
discovery—in 2021—Pohl had no way of knowing that Kassabs’s claims were identical to those
asserted by Kassab’s clients and rejected by the courts.
Kassab’s assertion of anonymous “assigned” claims lacked even the typical notice of the
identities of those behind the claims—Kassab’s counterclaims did not provide fair notice “of the
nature and basic issues of the controversy anda of the potentially relevant evidence.” See Rogers,
162 S.W.3d at 289. Kassab did not assert his counterclaims within the required 30-day period to
revive claims barred by limitations, aend this Court should dismiss Kassab’s counterclaims.
3. The Barraftry Claims assigned to Kassab after this lawsuit was filed
cannot be revived under section 16.069.
Even if Kassab’s counterclaims arose out of the same transaction or occurrence and had
been asserted timely, section 16.069 cannot revive claims assigned after a lawsuit to circumvent
the otherwise appclicable statute of limitations.
“Section 16.069(a) is intended to prevent a party from waiting until an opponent’s valid
claim, arising out of the same transaction or occurrence, is time-barred before asserting its own
claim.” Holman St. Baptist Church v. Jefferson, 317 S.W.3d 540, 545 (Tex. App.—Houston [14th
31 See Kassab’s Counterclaim, at 12.
32 See id.
33 See id. at 11–12.
12
Dist.] 2010, pet. denied) (citations omitted); J.M.K. 6, Inc. v. Gregg & Gregg, P.C., 192 S.W.3d
189, 199 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (“[it] allows those who are already
parties to the action to assert claims against one another that would otherwise be time-barred.”).
Despite the broad text of section 16.069, courts have limited its reach, such kas ruling it does
not revive claims made in response to declarations not requesting affirmative rlelief. See Holman,
317 S.W.3d at 545–46 (citing Ball v. SBC Communications, Inc., 04-0c2-00702-CV, 2003 WL
21467219, at *3 (Tex. App.—San Antonio June 25, 2003, pet. dsenied)). Courts apply the
provisions of the Code Construction Act when construing sections 16.069, and thus, its purpose and
the consequences of a particular interpretation are relevant to determining if section 16.069 should
apply. See Ball, 2003 WL 21467219, at *3–4; TEX. G BOV’T CODE § 311.023.
The court in Ball pointed to the object of section 16.069, its purpose, the consequences of
a particular construction, and the public intearest to find that section 16.069 did not apply to a
counterclaim in response to a declaratory judgment that did not seek affirmative relief, despite
such a counterclaim falling under thee unambiguous terms of section 16.069. See Ball, 2003 WL
21467219, at *3–6. This construfction of 16.069 has been cited favorably and was adopted by the
Fourteenth Court of Appealsy. See, e.g., Swoboda v. Ocwen Loan Servicing, LLC, 579 S.W.3d 628,
637–38 (Tex. App.—HCouston [14th Dist.] 2019, no pet.) (citing to Ball with approval).
When looking at the object of section 16.069, the court in Ball noted how the record did
not show that tfhfe plaintiff had “sought to postpone its lawsuit so that Ball’s claim or claims would
be barredU by limitations.” Ball, 2003 WL 21467219, at *3. The purpose of the statute was not
met, because the situation before it was not where “one of the litigants does not file his cause of
action until a short period before the relevant statute of limitations runs [and][t]he normal period
in which to answer the cause of action and file the counterclaim or cross claim would have been
13
cut short by the statute of limitation[s].” Id. at *4 (citation and quotation omitted). The court
looked to the consequences of the proposed construction to determine that it would be unjust and
unreasonable to construe the statute to make a declaratory judgment on the issues of limitations
fruitless. See id. at *4. Finally, it stated that the public interest would be hinderekd if it permitted
Ball “to circumvent limitations by relying on section 16.069” and allowing “Balll’s private interest
to outweigh the public’s interest in preventing the litigation of stale claimcs.” Id. at *5.
The court’s reasoning in Ball applies here. Kassab’s effort tos use section 16.069 to revive
adjudicated and stale claims that he did not even own until aftser the initiation of a lawsuit fails.
Pohl sued Kassab, not the parties that held the claims barred by limitations.34 Pohl could not have
intended to avoid the application of the statute of limitations because Kassab did not even receive
the purported Assignments until after Pohl filed this lawsuit.35 The object and purpose of section
16.069 would be frustrated by permitting its aapplication to these claims.
III. The Assignments of the Barratry Claims are invalid as a matter of law.
The Assignments of the Baerratry Claims are void because they are impermissible
assignments of statutory punitivef claims, a transparent device to avoid limitations and increase
litigation, and a violation ofy ethical rules. The Court should refuse to endorse the Assignments
and should dismiss theC counterclaims as a matter of law.
Texas law gaenerally prohibits the assignment of punitive statutory claims when the statute
does not expliciftly authorize assignments. A claim for civil barratry is a punitive statutory claim
that is noUt expressly assignable.
34 See generally Pohl’s Original Petition.
35 Compare Pohl’s Original Petition (filed August 28, 2018), with Kassab Depo. Exhibit 1, attached as Ex. H (noting
that purported assignments were “Effective September 24, 2018”).
14
A statutory cause of action that “does not explicitly provide for survival and [when] the
right to recovery . . . is punitive in nature” does not survive a plaintiff’s death and is thus not
assignable.36 See Tex. Farm Bureau Mut. Ins. Co. v. Rogers, 351 S.W.3d 103, 107 (Tex. App.—
San Antonio 2011, pet. denied); see also PPG Indus., Inc. v. JMB/Houston Centerks Partners Ltd.
P’ship, 146 S.W.3d 79, 82 (Tex. 2004) (“the personal and punitive aspects of DlTPA claims cannot
be squared with a rule allowing them to be assigned as if they were mere cproperty”).
In PPG, the Court looked at four factors to determine the assisgnability of a statutory cause
of action:37 (1) the text of the statute; (2) the purpose of thes statute; (3) related common-law
principles; and (4) whether the assignment may increase or distort the litigation. PPG, 146 S.W.3d
at 83–92. For the first factor, the Court found it significant that the DTPA statute did not explicitly
provide for assignment of a claim, even though the legislature knew how to make such a claim
assignable. Id. at 84. Because the statute wasa silent on the issue of assignments of a DTPA claim,
the Court turned to the other three considerations.
In looking at the statute’s puerpose, the Court said that “[w]hile the DTPA allows the
attorney general to bring consumfer protection actions, one of the statute’s primary purposes is to
encourage consumers themseylves to file their own complaints.” Id. It also notes that the protective
purpose of the DTPA mCay be thwarted by assignments, because “[c]onsumers are likely to be at a
severe negotiating disadvantage with the kinds of entrepreneurs willing to buy DTPA claims cheap
and settle themf fdear.” Id. at 86. The Court considered related common-law principles and said
that “the aUssignability of most claims does not mean all are assignable” and that “Courts addressing
assignability have often distinguished between claims that are property-based and remedial and
36 Under Texas law, a claim must be capable of surviving the plaintiff’s death to be assignable. See State v. Oakley,
227 S.W.3d 58, 61 (Tex. 2007); see also PPG Indus., Inc. v. JMB/Houston Centers Partners Ltd. P’ship, 146 S.W.3d
79, 92 n.58 (Tex. 2004).
37 Factors 2–4 only came into play if the statute was silent on the issue of assignability. PPG, 146 S.W.3d at 83–92.
15
claims that are personal and punitive, holding that the former are assignable and the latter are not.”
Id. at 87 (emphasis in original) (footnotes omitted). Finally, the Court noted that allowing these
assignments could “increase or distort litigation.” Id. at 90.
The Court’s analysis in PPG regarding the assignability of DTPA claimsk also applies to
the assignability of barratry claims in this case. The statute creating a civil lcause of action for
barratry does not provide for assignment of the claim. See TEX. GOV’T CcODE § 82.0651. The fact
that the legislature did not provide for assignment “can be significanst” and provides the starting
point for a court’s analysis. See PPG, 146 S.W.3d at 84. s 
The civil barratry statute’s purpose is analogous to the DTPA’s purpose, as they both
provide private civil remedies to a specific class of individuals for conduct that the State otherwise
polices. Compare id. (“DTPA allows the attorney general to bring consumer protection actions”
and noting that DTPA complaints were limaited to “consumers”), with TEX. GOV’T CODE §
82.0651(a) (providing private cause of action to a “client” for violations of criminal provisions).38
Just as the Court noted that the typees of “entrepreneurs” that will buy DTPA claims will place
consumers at a disadvantage, as fconsumers will not know the value of their claims, so too are
clients at a disadvantage in eyvaluating the value of their barratry claims. See PPG, 146 S.W.3d at
86. Lawyers like KassCab are in a position to take advantage of clients by purchasing assignments
far below their potential value given the statutory penalties.
DTPA fafnd civil barratry claims are also analogous in that they are both personal and
punitive iUn nature. See PPG, 146 S.W.3d at 88–89; TEX. GOV’T CODE § 82.0651. The DTPA is
38 Both statutes state their purpose in similar language. See TEX. BUS. & COM. CODE § 17.44(a) (stating purpose is
“to protect consumers against false, misleading, and deceptive business practices, unconscionable actions, and
breaches of warranty and to provide efficient and economical procedures to secure such protection.” (emphasis
added)); TEX. GOV’T CODE § 82.0651(e) (stating purpose is “to protect those in need of legal services against unethical,
unlawful solicitation and to provide efficient and economical procedures to secure that protection.” (emphasis added)).
16
concerned with the “deceivers and the deceived,” and a claim for barratry is concerned with the
solicitor and the solicited, giving both types of claims “a personal aspect that cannot be squared
with a rule that allows assignment.” See PPG, 146 S.W.3d at 91. Furthermore, a right to collect
a penalty is personal. Cf. id. at 878 n.32. A claim for civil barratry is punitive beckause it provides
for a $10,000 penalty and return of fees paid independent of “actual damag
esl.” See TEX. GOV’T
CODE § 82.0651. Penalties are by their nature punitive. See In re Xeroxc Corp., 555 S.W.3d 518,
530 & n.69 (Tex. 2018). The penalties for civil barratry and right thse return of fees are punitive
in nature and are in contrast with “remedial” claims that are msore likely to be assignable. See
PPG, 146 S.W.3d at 87.
Because civil barratry claims are personal and punitive in design, they are not assignable,
and this Court should find that the Assignments of the Barratry Claims to Kassab are void and
without effect. a
B. The Assignments violate public policy because they increase and prolong
litigation and were procured in violation of ethical rules.
Because Kassab procured tche Assignments for his counterclaim to evade the statute of
limitations and in violation of his ethical obligations, the Assignments of the Barratry Claims are
void as they violate considerations of equity and public policy.
“[T]he assignability of most claims does not mean all are assignable; exceptions may be
required due to eqcuity and public policy.” PPG, 146 S.W.3d at 87 (emphasis in original) (footnotes
omitted). The Texas Supreme Court has provided that “assignments may be invalidated on public
policy grounds.” See Sw. Bell Tel. Co. v. Mktg. on Hold Inc., 308 S.W.3d 909, 916 (Tex. 2010).
“[C]ourts should inquire as to whether there are notions of equity and public policy that would
vitiate the assignment of the claim under the circumstances,” including the circumstances in a
17
“particular case.” See Am. Homeowner Pres. Fund, LP v. Pirkle, 475 S.W.3d 507, 518–19 (Tex.
App.—Fort Worth 2015, pet. denied).
Courts may look to equitable considerations to invalidate assignments when the
assignments “tend to increase or prolong litigation unnecessarily” or when an asskignment is used
as a “transparent device” to “increase and distort litigation.” Sw. Bell Tel. Co., l308 S.W.3d at 916;
LAKXN Income, Inc. v. TLC Hosp., LLC, 02-20-00415-CV, 2021 WL 308c5755, at *5 (Tex. App.—
Fort Worth July 22, 2021, no pet. h.) (citing State Farm Fire & Cass. Co. v. Gandy, 925 S.W.2d
696, 708, 711 (Tex. 1996)). A court may also consider whether sthe assignment “has a tendency to
injure the public good.” See Wright v. Sydow, 173 S.W.3d 534, 551 (Tex. App.—Houston [14th
Dist.] 2004, pet. denied) (cleaned up).
The court’s analysis in American Homeowner Preservation Fund, LP v. Pirkle, 475 S.W.3d
507 (Tex. App.–Fort Worth 2015, pet. denieda), is instructive here. Finding that the assignment
before it “work[ed] to encourage litigation, rather than curb it,” and countenanced a sort of
collateral attack on a prior tax judgmeent, the court in that case held that that “notions of equity and
public policy . . . vitiate the assigfnment of the claim under the circumstances.” Id. at 519.
In Wright v. Sydow, tyhe Fourteenth Court of Appeals found assignments of claims invalid
because they injured thCe public good. See 173 S.W.3d 534, 551 (Tex. App.—Houston [14th Dist.]
2004, pet. denied). In that case, the court was confronted with a situation where “[a]proximately
two weeks beffofre they executed the Settlement Agreement, [two parties] secretly assigned their
claims toU [a third party] solely to circumvent the releases in the Settlement Agreement.” Id. at
552. The court found that “under the circumstances of this case, the assignments violate the strong
public policy of this State favoring voluntary settlement agreements and are void.” Id. at 553.
18
The Assignments here are similarly void. Kassab is attempting to use the Assignments to
avoid the application of the statute of limitations in a manner that increases and promotes litigation,
rather than curbing it. The sole purpose of the Assignments was to circumvent the statute of
limitations and promote further litigation. Assignments that injure the public gookd such as these
should be rejected. l
Finally, in obtaining these Assignments, Kassab violated the ethiccal rules governing Texas
lawyers. The Assignments are between Kassab and his clients.39 Thsey concern causes of action
and the subject matter of litigation where Kassab represented thsose clients.40 Such an assignment
is a prohibited transaction. See TEX. DISCIPLINARY R. OF PRgOF’L CONDUCT 1.08(h) (providing that
generally “[a] lawyer shall not acquire a proprietary interest in the cause of action or subject matter
of litigation the lawyer is conducting for a client”). The Court should refuse to recognize
assignments made in violation of ethical rulesa.
PRAYER
For the foregoing reasons, Pohel requests that the Court grant summary judgment dismissing
Kassab’s counterclaims. f
39 See supra Note 16.
40 See supra Notes 16 & 21.
19
Dated: December 7, 2021 Respectfully submitted,
REYNOLDS FRIZZELL LLP
By: /s/ Jean C. Frizzell
Jean C. Frizzell
State Bar No. 07484650 k
1100 Louisiana St., Suite 3500 e
Houston, Texas 77002 l
Tel. 713.485.7200
Fax 713.485.7250 c
jfrizzell@reynoldsfrizzell.rcom
Attorney for PlaintifDfs Michael Pohl
and Law Office of Michael A. Pohl, PLLC
CERTIFICATE OF SERrVICE
I hereby certify that a true and correct copy of this document was served on all counsel of
record pursuant to the Texas Rules of Civil Procedure on this 7th day of December, 2021.
M /s/ Jean C. Frizzell
 Jean C. Frizzell
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.
Suni Blue on behalf of Jean Frizzell
Bar No. 7484650
sblue@reynoldsfrizzell.com r
Envelope ID: 59800424
Status as of 12/7/2021 4:44 PM CST
Case Contacts r i
Name BarNumber Email TimestampSubmitted Status
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com s12/7/2021 4:11:54 PM SENT
Andrew J. Sarne asarne@krcl.com g12/7/2021 4:11:54 PM SENT
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Dale Jefferson 10607900 jefferson@mdjwlaw.com 12/7/2021 4:11:54 PM SENT
Raul Herman Suazo 24003021 suazo@mdjwlaw.comy 12/7/2021 4:11:54 PM SENT
Kevin Graham Cain 24012371 cain@mdjwlaw.caom 12/7/2021 4:11:54 PM SENT
Jason M.Ciofalo jason@ciofalolaw.com 12/7/2021 4:11:54 PM SENT
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Harris Wells hwells@reynoldsfrizzell.com 12/7/2021 4:11:54 PM SENT
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E. MarieJamison jamison@wrightclosebarger.com 12/7/2021 4:11:54 PM SENT
Jessica Z.Barger pbarger@wrightclosebarger.com 12/7/2021 4:11:54 PM SENT
Todd Taylor C ttaylor@jandflaw.com 12/7/2021 4:11:54 PM SENT
Lance Kassab a l eserve@kassab.law 12/7/2021 4:11:54 PM SENT
Felicia Grace fgrace@krcl.com 12/7/2021 4:11:54 PM SENT
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Kathryn Laflin KLaflin@KRCL.com 12/7/2021 4:11:54 PM SENT"