filing_id,date,doc_type,party,description,doc_type_detail,procedural_posture,chain,outcome,phase,filename,relief_requested,full_text
24,2022-02-04,RPL,Pohl,Pohl’s reply ISO MSJ on counterclaims,Plaintiffs' Reply in Support of Their Motion for Summary Judgment on Defendants' Counterclaims for Civil Barratry,"Pohl's reply brief supporting his MSJ on Kassab's barratry counterclaims, filed February 4, 2022. This is the final brief in the CC-1 motion chain before the court's ruling (which ultimately granted Pohl's motion). Attorney: Jean C. Frizzell of Reynolds Frizzell LLP.",CC-1,N/A,Phase 2,2022-02-04_RPL_Pohl-Reply-ISO-MSJ-on-CC_FILED.pdf,Grant summary judgment dismissing Kassab's counterclaims for civil barratry,"2/4/2022 3:45 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 61466983
By: Deandra Mosley
Filed: 2/4/2022 3:45 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL AND LAW OFFICE OF § IN THE DISTRICT COURT OF
MICHAEL A. POHL, PLLC, §
Plaintiffs, §
V. § k
§ e
SCOTT FAVRE and SCOTT M. FAVRE PA, § C l
LLC; PRECISION MARKETING GROUP, § HARRIS COUNTY, TEXAS
LLC; LANCE CHRISTOPHER KASSAB and § c
LANCE CHRISTOPHER KASSAB, P.C. d/b/a § r
THE KASSAB LAW FIRM; TINA § s
NICHOLSON and BAKER NICHOLSON, §
LLP d/b/a BAKER NICHOLSON LAW § s
FIRM; and DOUGLAS MONTAGUE III and § s
MONTAGUE PITTMAN & VARNADO, P.A., §
Defendants. § r189TH JUDICIAL DISTRICT
PLAINTIFFS’ REPLY IN SUPPORT OF THEIR MOTION FOR SUMMARY
JUDGMENT ON DEFENDANTS’ COUNTERCLAIMS
Plaintiffs Michael Pohl and Law Officae of Michael A. Pohl (collectively “Pohl”) file this
Reply in Support of Their Motion for Summary Judgment on Defendants’ Counterclaims for Civil
Barratry. e
In his Response to Plfaintiffs’ Motion (the “Response”) Kassab admits that the
Assignments1 underlying hisy counterclaims were shams that altered nothing about the ownership
of the claims and wereC made explicitly for the purpose of circumventing the statute of limitations
and fomenting otherwise barred litigation. See Response, at 6 (“Seeing Pohl’s retaliatory suit as a
means to potenftfially revive the barratry claims dismissed on limitations in Brumfield and Gandy,
Kassab aUnd his clients executed 242 Limited Assignments.”); see also Declaration of Lance
Kassab ¶ 12, Ex. 5 to the Response (after purported “assignment,” clients retained 60% interest in
claims and Kassab retained 40% contingent fee interest). These admissions demonstrate the
1 Terms defined in Plaintiffs’ Motion carry the same meaning in this Reply.
invalidity of the Assignments and therefore the Counterclaims. In addition to effectively admitting
that the Assignments are shams, Kassab’s Response fails to rebut any of the other bases on which
Pohl moved for summary judgment.
The Court can resolve Pohl’s Motion based on a straightforward applicationk of res judicata,
as Kassab freely admits that he is asserting the very same claims that are subjectl to final judgments.
Furthermore, even if they were not barred by res judicata, Kassab’s claims cdo not meet the statutory
elements for revival and are themselves barred by limitations. Fsinally, the invalidity of the
Assignments only further supports the conclusion that summarsy judgment on Kassab’s claims is
proper.
I. Res judicata applies and is dispositive of Kassab’s counterclaims.
Kassab has confirmed that his counterclaims are the same claims that were resolved by
prior final judgments on the merits. See Response, at 6 (confirming that Assignments were for the
claims “dismissed on limitations in Brumfield and Gandy”). Res judicata applies to such claims,
and the prior judgments dismissing thee Barratry Claims on the basis of limitations preclude Kassab
from re-litigating the same claimsf in this lawsuit.
Kassab’s sole argumyent against res judicata is a purported “change in material facts” that
prevents the applicatioCn of res judicata. See id. at 8. But Kassab supplies no legal support for his
argument that a chaange in facts, like an assignment, has any impact on res judicata. Despite the
dispositive natufre of the res judicata argument, Kassab devotes just over a single page of his 27-
page ResUponse and cites to two cases to address this issue. See id. at 8–9. The two cases deal with
application of res judicata to a claim that did not exist at the time of a prior judgment. Neither
case supports the conclusion that res judicata does not apply to stale claims that were previously
dismissed, merely because a party attempted to circumvent the statute of limitations by assigning
their claim to be asserted as a revived counterclaim.
In Marino v. State Farm Fire & Cas. Ins. Co., the first case Kassab relies on, the Court
“addressed the issue of whether res judicata can bar a subsequent suit on a cause of action that was
not recognized until after judgment was rendered in the first suit.” 787 S.W.2d 948, 949 (Tex.
1990) (emphasis added). In the first lawsuit between Marino and State Farm, Markino prevailed at
trial on a claim for breach of contract based on State Farm’s denial of an insulrance claim. Id. at
948–49. After the judgment, the Texas Supreme Court “recognized a tocrt cause of action for an
insurer’s breach of the duty of good faith and fair dealing,” commonsly called a “bad faith” claim.
Id. at 949. The Court found that Marino’s “bad faith” claim, assserted in the second lawsuit, was
not barred by res judicata, because it “was based on rights subsequently acquired, [and] it was not
part of his former cause of action.” Id. at 950.
Kassab’s other case is City of Lubbock v. Stubbs, 327 S.W.2d 411 (Tex. 1959), which
addresses the application of res judicata to a ciaty’s attempt to enjoin Stubbs from violating a zoning
ordinance. Stubbs, 327 S.W.2d at 414. In a suit involving a prior ordinance, Stubbs prevailed,
permitting him to continue using his eland for specific business purposes. The city then passed an
ordinance that zoned his land asf residential. Id. at 413. In the second suit, the city sought to
enforce the new zoning ordyinance against Stubbs. Stubbs argued that, like in the first suit, he
should be able to contiCnue using his land for purposes he was engaged in prior to the passing of
the ordinance. Id. at 414. However, the Court found that res judicata did not apply, in part based
on the fact thatf Sftubbs’s “present use” of his land differed in each of the suits and that the city was
enforcingU a new ordinance. Id.
The application of res judicata to Kassab’s counterclaims is not analogous to the situations
presented in Marino and Stubbs. Kassab’s Barratry Claims not only existed at the time of the prior
final judgments on the merits, the prior judgments apply to the same claims Kassab attempts to
assert here. See Response, at 8 (acknowledging that “the prior judgments in Brumfield and Gandy
concluded” that “the barratry claims were barred by the statute of limitations”). Courts citing to
the Marino and Stubbs cases have properly focused on the existence of a claim and whether it was
a “a claim that was raised or that could have been raised in the first action.” Hernakndez v. Del Ray
Chem. Intern., Inc., 56 S.W.3d 112, 116 (Tex. App.—Houston [14th Dist.] 200l1, no pet.).
Kassab is incorrect that his strategic use of assignments combinecd with section 16.069 of
the Civil Practice and Remedies Code allow him to not only avoid tshe proper application of the
statute of limitations, but also to avoid the effects of res judicatas. Because the Assignors’ Barratry
Claims are the subjects of final judgments, and Kassab is in privity with the Assignors, res judicata
applies and prevents Kassab from recovering on his counterclaims. The Court should grant Pohl’s
Motion and dismiss Kassab’s Barratry Claims.
II. Kassab’s counterclaims are not reavived and are thus barred by limitations.
Kassab’s counterclaims for civil barratry are barred by limitations because they accrued
more than four years before Kassabe filed the counterclaims. Kassab does not dispute that the
underlying Barratry Claims are bafrred by limitations or that his claims are governed by a four-year
statute of limitations. See geynerally Response. Instead, Kassab argues that section 16.069 of the
Civil Practice and RemCedies Code revives claims purportedly assigned to him. Kassab’s three
arguments in responase to Pohl’s Motion do not demonstrate that section 16.069 applies.
A. Pfohl’s claims against the Defendants arise of out of a different transaction or
occurrence than Kassab’s assigned Barratry Claims.
Kassab selectively quotes the standard for determining if section 16.069 applies and
misconstrues what facts are relevant to the claims and counterclaims in this lawsuit. See Response,
at 10–14. One reason that section 16.069 does not apply is because Kassab cannot show that “[t]he
essential facts on which the counterclaim is based [are] significantly and logically relevant to both
claims.” Smith v. Ferguson, 160 S.W.3d 115, 120 (Tex. App.—Dallas 2005, pet. denied).
As Pohl stated in his Motion, and as Kassab acknowledged in his Response, courts use a
“logical relationship test,” when determining whether counterclaims arise oukt of the same
transaction or occurrence. See Motion, at 9; see also Response at 10. Howevler, Kassab fails to
acknowledge that his own cases state that this test “is met when the same cfacts, which may or may
not be disputed, are significant and logically relevant to both claimss.” Commint Tech. Services,
Inc. v. Quickel, 314 S.W.3d 646, 653 (Tex. App.—Houston [14sth Dist.] 2010, no pet.) (emphasis
added); see generally Response (not using the term “significant” to discuss application of section
16.069).
Pohl asserts claims for theft of trade secrets and conversion relating to the Defendants’
theft and misuse of Pohl’s stolen client files anad information. Kassab argues that his counterclaims
arise out of the same transaction or occurrence as Pohl’s claims because: “The facts relevant to
determining whether Precision gaineed access to Pohl’s confidential information while ‘liaising’
with prospective clients are alsof relevant to determining whether the ‘liaising’ conducted by
Precision – at Pohl’s directioyn – amounted to unlawful barratry.” See Response, at 11. Without
ever explaining why, KCassab asserts that Pohl’s claims “depend on the manner in which Precision
worked for Pohl to procure client contact information.” See id. at 13. Kassab is wrong.
“[D]etefrfmining whether Precision gained access to Pohl’s confidential information while
‘liaising’U with prospective clients” is in no way “significant and logically relevant” to Pohl’s
claims for conversion and theft of trade secrets against Kassab. Id. at 11; see also Pohl’s First
Amended Petition, at 5–12 (describing the factual bases for Pohl’s claims). It does not matter at
all to Pohl’s claims whether the information Precision stole and sold was acquired during proper
“liaising” or if it was acquired doing alleged barratrous activity. What matters are the facts
underlying Kassab’s 2016 purchase and subsequent use of Pohl’s stolen property. Because
Kassab’s counterclaims do not arise out of the same transaction or occurrence as Pohl’s claims,
section 16.069 does not apply. k
B. Kassab did not provide fair notice of valid counterclaimCs lwithin the 30-day
period required under section 16.069. 
It is undisputed that a counterclaim that does not provide fair nortiice of the facts giving rise
to the claims does not satisfy the requirement to assert a counterDclaim within the 30-day period
prescribed by section 16.069. See Response, at 14–18 (not dissputing this rule). Instead, Kassab
simply asserts that he met this requirement because he argures that his “pleading met that fair notice
standard.” See id. at 18. His pleadings demonstrate otherwise.
Kassab admits that “fair notice” requires thlat a party be able to “ascertain from the pleading
the nature, basic issues, and the type of evidMence that might be relevant to the controversy.” Id. at
17 (quoting Low v. Henry, 221 S.W.3d 6o09, 612 (Tex. 2007)). However, Kassab does not explain
how Pohl could understand the natucre, issues, and types of evidence relevant to the barratry claims
when Pohl did not know who he was alleged to have committed barratry against. Instead, Kassab
argues that even less fair notice was provided by a party in a case cited by Pohl—seeming to
suggest that he merely needed to distinguish the facts of that case from the facts in this lawsuit.
See id. at 14–17. c However, the distinguishing facts Kassab points out do nothing to change that
he was obligated to provide fair notice to Pohl of the bases and nature of his counterclaims.
The Court can decide this issue with ease. The question is whether Pohl had “fair notice”
of Kassab’s barratry counterclaims when Kassab did not provide the means for Pohl to determine
who he was alleged to have committed barratry against. Kassab argues that there is fair notice
because of the seven pages of “facts” included in Kassab’s Third Amended Counterclaim. See id.
at 16. Even if those “facts” were part of the counterclaims,2 they did not inform Pohl who he
allegedly improperly solicited and committed barratry against. Pohl could not understand the
nature, issues, and types of evidence relevant to the counterclaims without knowing who he was
alleged to have committed barratry against. k
Kassab’s allegation of unspecified “assigned barratry claims”—withoult any indication of
who assigned the claims—does not provide “fair notice” of the claims uncder Texas law.3 Kassab
did not assert his counterclaims within the required 30-day periods to revive claims barred by
limitations, and this Court should dismiss Kassab’s counterclaimss.
C. Kassab has no response to the reasoning demonstrating that the Barratry
Claims assigned to Kassab after this lawrsuit was filed cannot be revived.
In his Motion, Pohl argued that section 16.069 cannot revive claims assigned after a lawsuit
to circumvent the otherwise applicable statute lof limitations. He noted that courts apply the
provisions of the Code Construction Act whMen construing section 16.069, and thus, its purpose and
the consequences of a particular interpreotation are relevant to determining if section 16.069 should
apply. See Motion, at 13 (citations comitted).
Instead of challenging the legal principles that led to the reasoning of the cases cited by
Pohl, Kassab argues simply that the cases are factually distinguishable and sought different forms
of relief. See Response, at 18–19. Kassab does not explain why the Court, in considering the
object and purposce of section 16.069, should construe the statute to apply in circumstances when
a defendant engages in gamesmanship to attempt “to circumvent limitations by relying on section
2 That factual discussion was not incorporated into Kassab’s counterclaim and appeared to be an explanation for why
Kassab believes the lawsuit was retaliatory, not the basis of the counterclaims. See Kassab’s Counterclaim, at 11–12.
3 Kassab’s suggestion that Pohl somehow should not be able to assert this argument because “Pohl could have obtained
a hearing on his special exceptions if he actually believed that Kassab’s pleadings were deficient,” misses the point.
See Response, at 18. The issue for Kassab is whether he gave fair notice of his counterclaim within the required 30-
day period. It does not matter if subsequent to that, Pohl fails to secure a ruling on potential special exceptions.
16.069.” See Ball v. SBC Communications, Inc., 04-02-00702-CV, 2003 WL 21467219, at *5
(Tex. App.—San Antonio June 25, 2003, pet. denied).
The Court should not allow Kassab to use section 16.069 to revive claims that he did not
even own until after this lawsuit was filed. The object and purpose of section 1k6.069 would be
frustrated by permitting its application to these claims. l
III. Kassab’s arguments regarding the validity of the Assignmcents of the Barratry
Claims fail and do not address the substance of Pohl’s argruments.
In his Motion, Pohl argued that the Assignments of the BaDrratry Claims are void because
they (1) are impermissible assignments of statutory punitive cslaims, and (2) violate public policy
by acting as an improperly obtained, transparent device to ravoid limitations and increase litigation.
See Motion, at 14. Kassab’s lead argument in response is that the Assignments are valid because
Pohl is estopped from arguing otherwise. Kassabl’s misleading attempt to invoke estoppel and his
responses to Pohl’s actual arguments do noMt work.
A. Kassab’s invocation of ojudicial estoppel is misleading, and it does not apply.
Kassab’s opening and primcary argument regarding the validity of the Assignments is a
legally deceptive argument that Pohl should be estopped from arguing they are invalid because he
purportedly made an inconpsistent argument in other cases. See Response, at 20 (stating that Pohl
“has simultaneously argued to the Texas Supreme Court that the Assignments are valid”). It is
unclear why Kasscab would seek to draw this Court’s attention to the fact that while asserting his
“assigned” Boarratry Claims in this Court, he simultaneously was representing clients asserting the
exact same claims in two appellate proceedings without having notified those courts of the
purported assignments.
Contrary to Kassab’s arguments, Pohl did not take an inconsistent position in the Texas
Supreme Court. Instead, Pohl’s briefing referred to “purported” assignments and notified the
Supreme Court that Kassab himself had argued that the Assignments are valid. See Response,
Exs. 5A, 5B. Furthermore, even had Pohl taken inconsistent position, he did not prevail on this
position, making estoppel inapplicable.4
Kassab was aware that Pohl did not prevail on this alternative argument, kand yet he still
makes his estoppel argument, citing to a single case. See id. at 21 (citing lFerguson v. Bldg.
Materials Corp. of Am., 295 S.W.3d 642, 643 (Tex. 2009)). However, Fecrguson makes clear that
estoppel is not applicable here, because it “precludes a party whso successfully maintains a
position in one proceeding from afterwards adopting a clearlys inconsistent position in another
proceeding to obtain an unfair advantage.” Ferguson, 295 S.W.3d at 643 (emphasis added).
Kassab somehow failed to include the full standard for judicial estoppel, despite it being contained
on the same page that he cited. See Response, at 21 (citing to Ferguson, 295 S.W.3d at 643).
B. Kassab has no real responase to the fact that the Assignments contain
impermissible assignmentsM of statutory punitive claims.
In his Response, Kassab does noot address the fact that punitive statutory claims are often
not assignable, nor does he address cthe four factors the Texas Supreme Court uses when analyzing
the assignability of a statutory cause of action. See Response, at 21–24. Instead, Kassab discusses
the assignability of legal malpractice claims—which Pohl did not bring up and which has no
relevance to Pohl’s actual arguments—and sets up a straw man of Pohl’s arguments by contending
that Pohl relies onc an exception to assignability that is limited to DTPA claims. See id. at 21–22.
Kassab contends that Pohl’s arguments regarding the invalidity of an assignment of a civil
barratry claim fail because of “the simple fact that a civil barratry claim is not a DTPA claim.”
4 See January 28, 2022 Notices filed Brumfield v. Williamson, No. 21-0563, in The Supreme Court of Texas, and
Gandy v. Williamson, No. 21-0564, in The Supreme Court of Texas (denying petitions for review and dismissing
Pohl’s Motions to Dismiss “as moot.”). These records are available at https://search.txcourts.gov/Case.aspx?cn=21-
0563&coa=cossup and https://search.txcourts.gov/Case.aspx?cn=21-0564&coa=cossup. This Court may take judicial
notice of these facts. See TEX. R. EVID. 201(b).
See id. at 22. This is a non sequitur. While the seminal case on the assignability of statutory claims
dealt with assignment of a DTPA claim, its reasoning was explicitly not limited to such claims.
See PPG Indus., Inc. v. JMB/Houston Centers Partners Ltd. P’ship, 146 S.W.3d 79, 87 (Tex. 2004)
(noting that “the assignability of most claims does not mean all are assignable; exckeptions may be
required due to equity and public policy” (footnotes omitted)). l
Kassab all but ignores the four factors considered by the Court inc PPG. See Response, at
21–24. Kassab does not address the fact that the legislature knew hsow to make barratry claims
assignable, yet the statute is silent. See TEX. GOV’T CODE § 82.s0651. That the legislature did not
explicitly provide for assignment “can be significant” and provides the starting point for a court’s
analysis. PPG, 146 S.W.3d at 84. Nor does Kassab discuss the purpose of the civil barratry statute,
related common-law principles prohibiting assignments of punitive statutory claims, or whether
the Assignments may increase litigation. See aPPG, 146 S.W.3d at 83–92; Response, at 23–24.
Kassab argues that some of the risks of distortion discussed in PPG are not present here.
See Response, at 23–24. However, thee risks of distortion discussed in PPG were not alleged to be
present in that case either. See PfPG, 146 S.W.3d at 91–92. The Court instead was concerned
about the rule as applied to ya class of claims. Id. The risks of distortion are present for barratry
claims as a class. AndC it is clear that assignments made to avoid limitations, “increase” litigation.
Because civil barratry claims are personal and punitive in design, and for the other reasons
discussed in thfef Motion, the claims are not assignable. Kassab’s attempt to factually distinguish
PPG hasU no effect on the rule and reasoning it laid out. This Court should find that the
Assignments of the Barratry Claims to Kassab are void and without effect.
C. Kassab’s own admissions show that the Assignments violate public policy.
Kassab admits that the Assignments were a sham device used as part of an attempt to avoid
the application of the statute of limitations. See Response, at 6 (“Seeing Pohl’s retaliatory suit as
10
a means to potentially revive the barratry claims dismissed on limitations in Brumfield and Gandy,
Kassab and his clients executed 242 Limited Assignments”). Kassab also describes in his
Response how the Assignments have no practical effect and were simply “effectuated in an attempt
to salvage the clients’ barratry claims,” and Kassab would return any recovery ikn excess of his
contingency fee to the assignors. See id. at 23. These admissions demlonstrate that the
Assignments violate public policy, and the Court should decline to enforcce them.
As discussed more thoroughly in the Motion, “the assignabislity of most claims does not
mean all are assignable; exceptions may be required due to equsity and public policy.” PPG, 146
S.W.3d at 87 (emphasis in original) (footnotes omitted). Courts may look to equitable
considerations to invalidate assignments when the assignments “tend to increase or prolong
litigation unnecessarily” or when an assignment is used as a “transparent device” to “increase and
distort litigation.” See Sw. Bell Tel. Co. v. Mkatg. on Hold Inc., 308 S.W.3d 909, 916 (Tex. 2010);
LAKXN Income, Inc. v. TLC Hosp., LLC, 02-20-00415-CV, 2021 WL 3085755, at *5 (Tex. App.—
Fort Worth July 22, 2021, no pet.) (cietation omitted).
The Assignments Kassabf received undisputedly “tend to increase or prolong litigation
unnecessarily” and are admiytted “transparent device[s]” to “increase and distort litigation.” Sw.
Bell Tel. Co., 308 S.WC.3d at 916; LAKXN, 2021 WL 3085755, at *5. Kassab’s sole response is
simply that “Pohl has the filthiest of hands” and that Pohl should not benefit from any equitable
consideration. f fSee Response, at 26. However, Kassab’s overheated statements and citation to a
court’s dUiscussion of “the past litigation that led to this suit as it is relevant to the issues being
decided now,” are not competent evidence of unclean hands. See Kassab v. Pohl, 612 S.W.3d 571,
574 (Tex. App.—Houston [1st Dist.] 2020, pet. denied); Response, at 26 (citing Kassab v. Pohl).
11
Kassab ignores the fact that the Court must consider both public policy and equitable
considerations, and he does not explain why Pohl’s analysis of those considerations is incorrect.
Instead Kassab focuses on a side issue, arguing that the Assignments cannot be invalidated even
if he did violate Disciplinary Rule 1.08(h). See Response, at 24–26. While his akttempt to argue
that the Assignments do not violate Rule 1.08(h) makes little sense, it is worthl noting that Kassab
quotes the relevant caselaw in a misleading fashion. Kassab suggests that “ceven if the Assignments
are unethical and in violation of Rule 1.08 . . . the Court cannot void tshem.” See Response, at 25–
26 (citing M.A. Mills, P.C. v. Kotts, No. 14-20-00395-CV, 2022s WL 176125, at *8 (Tex. App.—
Houston [14th Dist.] Jan. 20, 2022, no pet. h.)). However, Knotts dealt with a different provision
of the Rules, and the court explicitly stated: “We previously opined that courts ‘may deem these
rules to be an expression of public policy, so that a contract violating them is unenforceable
as against public policy,’ but we also said thaat courts ‘are not required to do so.’” Kotts, 2022
WL 176125, at *6 (citations omitted) (emphasis added).
Ultimately, whether Kassab oebtained these assignments in violation of the ethical rules is
just an additional factor for the Cfourt to consider along with the other public policy and equitable
considerations. Kassab is attyempting to use the Assignments to avoid the application of the statute
of limitations in a manCner that increases and promotes litigation, rather than curbing it. The sole
purpose of the Assignments was to circumvent the statute of limitations and promote further
litigation. Assfigfnments that injure the public good such as these should be rejected.
U PRAYER
For the foregoing reasons, and the reasons stated in Pohl’s Motion, Pohl requests that the
Court grant summary judgment dismissing Kassab’s counterclaims.
12
Dated: February 4, 2022 Respectfully submitted,
REYNOLDS FRIZZELL LLP
By: /s/ Jean C. Frizzell
Jean C. Frizzell
State Bar No. 07484650 k
1100 Louisiana St., Suite 3500 e
Houston, Texas 77002 l
Tel. 713.485.7200
Fax 713.485.7250 c
jfrizzell@reynoldsfrizzell.rcom
Attorney for PlaintifDfs Michael Pohl
and Law Office of Michael A. Pohl, PLLC
CERTIFICATE OF SERrVICE
I hereby certify that a true and correct copy of this document was served on all counsel of
record pursuant to the Texas Rules of Civil Procedure on this 4th day of February, 2022.
M /s/ Jean C. Frizzell
 Jean C. Frizzell
13
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Melissa Hyland on behalf of Jean Frizzell
Bar No. 7484650
mhyland@reynoldsfrizzell.com r
Envelope ID: 61466983
Status as of 2/4/2022 3:50 PM CST
Case Contacts r i
Name BarNumber Email TimestampSubmitted Status
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com s2/4/2022 3:45:54 PM SENT
Todd Taylor ttaylor@jandflaw.com g2/4/2022 3:45:54 PM SENT
Scott M.Favre scott@favrepa.com u 2/4/2022 3:45:54 PM SENT
Lance Kassab eserve@kassab.law  2/4/2022 3:45:54 PM SENT
Murray JFogler mfogler@foglerbrar.cyom 2/4/2022 3:45:54 PM SENT
Murray Fogler mfogler@fbfog.caom 2/4/2022 3:45:54 PM SENT
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Jason M.Ciofalo jason@cioofalolaw.com 2/4/2022 3:45:54 PM SENT
Misty Davis mdavis@reynoldsfrizzell.com 2/4/2022 3:45:54 PM SENT
Andrew J. Sarne asafrne@krcl.com 2/4/2022 3:45:54 PM SENT
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Kevin Graham Cain 24a01l2371 cain@mdjwlaw.com 2/4/2022 3:45:54 PM SENT
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David R.Wade lawyerwade@hotmail.com 2/4/2022 3:45:54 PM SENT
Felicia Grace fgrace@krcl.com 2/4/2022 3:45:54 PM SENT"
21,2021-10-18,OA,Pohl,Pohl’s response and special exceptions,"Plaintiffs-Counter Defendants Pohl's Verified Original Answer and Special Exceptions to Kassab's Fourth Amended Answer, Counterclaim, and Designation of Responsible Third Parties","Pohl's responsive pleading to Kassab's Fourth Amended Answer and Counterclaim filed on October 13, 2021. Filed October 18, 2021, five days after Kassab's amended pleading. Challenges Kassab's legal capacity to assert assigned barratry claims through verified denials and seeks clarification of the counterclaim through special exceptions. Attorney: Jean C. Frizzell of Reynolds Frizzell LLP.",PLEAD-1,N/A,Phase 2,2021-10-18_OA_Pohl-Response-and-Special-Exceptions_FILED.pdf,That the Court render judgment that Kassab take nothing; dismiss Kassab's counterclaim for barratry on its merits; and grant such other and further or alternative relief (legal and equitable) to which Pohl may be entitled,"10/18/2021 5:07 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 58297712
By: Deandra Mosley
Filed: 10/18/2021 5:07 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–COUNTER DEFENDANTS MICHAEL POHL AND
LAW OFFICE OF MICHAEL A. POHL, PLLC’S
VERIFIED ORIGINAL ANSWERl AND SPECIAL EXCEPTIONS
Plaintiffs–Counter Defendants MichMael Pohl and Law Office of Michael A. Pohl, PLLC
(collectively “Pohl”), file this Verified Original Answer and Special Exceptions to Defendants,
Lance Christopher Kassab and Lance Christopher Kassab, P.C. d/b/a The Kassab Law Firm’s Fourth
Amended Answer, Affirmative Defenses and Counterclaim, and Designation of Responsible Third
Parties, filed October 13, 2021 (the “Counterclaim”), and would show as follows:
 I. Verified Denials
Pursuant tco Rules 93(1) and 93(2) of the Texas Rules of Civil Procedure, Pohl denies that
Lance Christopher Kassab and Lance Christopher Kassab, P.C. d/b/a The Kassab Law Firm
(collectively “Kassab”) has legal capacity to sue or recover in the capacity in which he sued. Kassab
purports to assert barratry claims assigned to him by his clients. Such assignments of barratry claims
(whether complete or partial) are void, and Kassab both lacks legal capacity to sue and to recover.
Pohl’s Verification is attached as Exhibit A.
II. Answer
Pursuant to Rule 92, Pohl generally denies each and every, all and singular, of the
allegations made in Kassab’s Counterclaim, and demands strict proof thereof.
Pohl hereby pleads the following affirmative defenses: k
i. Statute of limitations; l
ii. Laches; 
iii. Lack of standing; c
iv. Illegality; t
v. Res judicata; i
vi. Estoppel; 
vii. Failure to mitigate; and s
viii. Waiver.
III. Special Exceptions
Pohl specially excepts to the Counterclaim on the grounds of obscurity and lack of fair
notice. As currently pled, Pohl is unable to ascrertain the nature and basic issues presented by the
Counterclaim in order to adequately defend himself. See Counterclaim, at 12.
“An opposing party should usee special exceptions to identify defects in a pleading so that
they may be cured, if possible, bfy amendment.” Horizon/CMS Healthcare Corp. v. Auld, 34
S.W.3d 887, 897 (Tex. 2000y). “The purpose of a special exception is to compel clarification of
pleadings when the pleadings are not clear or sufficiently specific or fail to plead a cause of action.”
Baylor Univ. v. Sonanichsen, 221 S.W.3d 632, 635 (Tex. 2007). Sw. Bell Tel. Co. v. Garza, 164
S.W.3d 607, 61f7 (Tex. 2004) (“Had SWBT been in doubt about Garza’s claims, it could have
sought clarification through special exceptions.”). Special exceptions are “‘the appropriate
vehicle . . . by which an adverse party may force clarification of vague pleadings,’ thereby
narrowing the range of facts that will be of consequence in the action.” In re Mem’l Hermann
Hosp. Sys., 464 S.W.3d 686, 708 (Tex. 2015) (citation omitted).
-2-
Clarification regarding the nature and basis of Kassab’s counterclaim for barratry is
necessary. In his Counterclaim, Kassab appears to be more concerned with attacking Pohl than
articulating the basis of a claim or claims that Kassab is entitled to assert against Pohl. Kassab
does not identify the specific cause of action asserted, who the original owners kof the assigned
claims are, or any facts that give rise to his barratry counterclaim. l
Without identifying the cause of action, Kassab asserts generic c“counterclaims” against
Pohl “based upon express assignments,” and then states that he “has bseen assigned barratry claims
on behalf of 242 claimants.” See Counterclaim, at 12. He does snot identify who the assignors are,
nor does Kassab state any facts that give rise to the allegedly assigned barratry claims. See id.
To the extent that Kassab argues that the “Factual Background” section is incorporated into
his barratry counterclaim, it further demonstrates the need for clarification. See id. at 4–12. The
facts discussed in that portion of the Countercalaim lead up to Kassab stating that: “more than four
hundred clients who were illegally solicited contacted the Kassab Law Firm and requested Kassab
to represent them in litigation againset Pohl and his partners. Kassab filed lawsuits on behalf of
these clients in four different coufrts in Harris County.” Id. at 11.
If those facts give risey to Kassab’s barratry counterclaim, are the claims asserted by Kassab
in this lawsuit the samCe as those asserted by Kassab’s clients in prior litigation? If so, it raises
serious questions about Kassab’s barratry counterclaim, including whether it is barred by res
judicata. The nfefed for clarification and fair notice is apparent, and the Court should require Kassab
to clarifyU the basis of the counterclaim and provide Pohl with fair notice.
IV. Conclusion
For the foregoing reasons, Pohl prays that the Court render judgment that Kassab take
nothing by reason of his allegations; dismiss Kassab’s counterclaim for barratry on its merits; and
for such other and further or alternative relief (legal and equitable) to which Pohl may be entitled.
-3-
Dated: October 18, 2021 Respectfully submitted,
REYNOLDS FRIZZELL LLP
By: /s/ Jean C. Frizzell
Jean C. Frizzell
State Bar No. 0748465k0
1100 Louisiana St., Suite 3e500
Houston, Texas 77002 l
Tel. 713.485.7200
Fax 713.485.7250 c
jfrizzell@reynoldsrfrizzell.com
Attorney for PDlaintiffs Michael Pohl
and Law Osffice of Michael A. Pohl, PLLC
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this document was served on all counsel of
record pursuant to the Texas Rules of Civil Procedure on this 18th day of October, 2021.
a /s/ Jean C. Frizzell
M Jean C. Frizzell
-4-
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: 58297712
Status as of 10/19/2021 7:47 AM CST
Case Contacts r i
Name BarNumber Email TimestampSubmitted Status
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com s10/18/2021 5:07:28 PM SENT
Todd Taylor ttaylor@jandflaw.com g10/18/2021 5:07:28 PM SENT
Scott M.Favre scott@favrepa.com u 10/18/2021 5:07:28 PM SENT
Lance Kassab eserve@kassab.law  10/18/2021 5:07:28 PM SENT
Murray JFogler mfogler@foglerbrar.cyom 10/18/2021 5:07:28 PM SENT
Andrew J. Sarne asarne@krcl.coma 10/18/2021 5:07:28 PM SENT
Larry Newsom lnewsom@krcl.com 10/18/2021 5:07:28 PM SENT
Jason M.Ciofalo jason@cioofalolaw.com 10/18/2021 5:07:28 PM SENT
Misty Davis mdavis@reynoldsfrizzell.com 10/18/2021 5:07:28 PM SENT
Harris Wells hweflls@reynoldsfrizzell.com 10/18/2021 5:07:28 PM SENT
Kathryn Laflin KLaflin@KRCL.com 10/18/2021 5:07:28 PM SENT
Dale Jefferson 10607900pjefferson@mdjwlaw.com 10/18/2021 5:07:28 PM SENT
Raul Herman Suazo 24003C021 suazo@mdjwlaw.com 10/18/2021 5:07:28 PM SENT
Kevin Graham Cain 24a01l2371 cain@mdjwlaw.com 10/18/2021 5:07:28 PM SENT
Solace Southwick ssouthwick@reynoldsfrizzell.com 10/18/2021 5:07:28 PM SENT
Felicia Grace o fgrace@krcl.com 10/18/2021 5:07:28 PM SENT
Chris C.PappaUs cpappas@krcl.com 10/18/2021 5:07:28 PM SENT
Todd Taylor ttaylor@jandflaw.com 10/18/2021 5:07:28 PM SENT
David R.Wade lawyerwade@hotmail.com 10/18/2021 5:07:28 PM SENT"
17,2021-07-26,RSP,Pohl,Pohl’s response to Kassab MSJ,"Pohl's Response in Opposition to Kassab's Traditional Motion for Summary Judgment, addressing all three grounds (limitations, res judicata, attorney immunity)","Response brief filed in Phase 2 opposing Kassab's dispositive Traditional MSJ. Pohl argues Kassab's motion recycles the same arguments and limited evidence from the TCPA motion and interlocutory appeal, and was filed prior to responding to any discovery. Filed July 26, 2021, approximately 7 weeks after Kassab's MSJ.",MSJ-1,N/A,Phase 2,2021-07-26_RSP_Pohl-Response-to-Kassab-Traditional-MSJ_FILED.pdf,Deny Kassab's Traditional Motion for Summary Judgment in all respects,"7/26/2021 2:51 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 55701585
By: Deandra Mosley
Filed: 7/26/2021 2:51 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL AND LAW OFFICE OF § IN THE DISTRICT COURT OF
MICHAEL A. POHL, PLLC, §
Plaintiffs, §
V. § k
§ e
SCOTT FAVRE and SCOTT M. FAVRE PA, § C l
LLC; PRECISION MARKETING GROUP, § HARRIS COUNTY, TEXAS
LLC; LANCE CHRISTOPHER KASSAB and § c
LANCE CHRISTOPHER KASSAB, P.C. d/b/a § r
THE KASSAB LAW FIRM; TINA § s
NICHOLSON and BAKER NICHOLSON, §
LLP d/b/a BAKER NICHOLSON LAW § s
FIRM; and DOUGLAS MONTAGUE III and § s
MONTAGUE PITTMAN & VARNADO, P.A., §
Defendants. § r189TH JUDICIAL DISTRICT
PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANTS LANCE
CHRISTOPHER KASSAB AND LANCE CHRISTOPHER KASSAB, PC’S
TRADITIONAL MOTION FOlR SUMMARY JUDGMENT
Plaintiffs Michael Pohl and Law OfMfice of Michael A. Pohl (collectively “Pohl”) respond
in opposition to the Traditional Motion for Summary Judgment filed by Defendants Lance
Christopher Kassab and Lance Christopher Kassab, P.C., d/b/a The Kassab Law Firm (collectively
“Kassab”). Kassab’s Traditional Motion for Summary Judgment (the “Motion”), which Kassab
filed prior to responding to any discovery, relies on the same arguments and (very limited)
evidence previously presented to this Court and the First Court of Appeals in Kassab’s motion
under the TCPA.c Kassab’s arguments were not persuasive then, nor is his recycled assertion of
them persuasive now.
I. FACTUAL BACKGROUND
Pohl is a lawyer who represented various persons and entities in claims arising from motor
vehicle accidents and the British Petroleum Deepwater Horizon oil spill.1 Pohl engaged Precision
1 Sworn Declaration of Michael A. Pohl (the “Pohl Declaration”) ¶ 3, attached as Exhibit A.
Marketing Group, LLC (“Precision”) to provide public relations services, to gather and preserve
evidence, and to screen and liaise with Pohl’s clients and prospective clients.2 While working for
Pohl, Precision naturally gained access to Pohl’s confidential and proprietary information and
property, including trade secret materials.3 Scott Favre, individually and/or thkrough Scott M.
Favre PA, LLC (collectively “Favre”) is the managing member of Precision.4 Flavre took physical
copies of Pohl’s information, stole Pohl’s computers, and misappropriatecd electronic data.5
In November 2016, Kassab—a lawyer who specializes in suinsg other lawyers—purchased
Pohl’s stolen confidential information and property from Favsre (with the assistance of other
Defendants) for a whopping $250,000, plus bonuses,6 taking possession of at least some of the
information and property in December 2016.7 Kassab highly valued Pohl’s stolen and
misappropriated confidential information and property because, after purchasing it, he used it to
contact and solicit Pohl’s clients and prospectiave clients.8 Kassab’s actions constitute conversion,
violations of the uniform trade secrets act (“TUTSA”), and conspiracy.
Favre’s sale of Pohl’s stolen ceonfidential information and client communications to Kassab
violated the terms of a settlementf agreement. That confidential settlement agreement, executed in
late April or early May 2017y (the “Settlement Agreement”), resolved a lawsuit in federal court in
Mississippi, styled No.C 1:14-cv-381-KS-JCG, Scott Walker, et al. v. Jimmy Williamson, et al., In
The United States District Court For The Southern District of Mississippi, Southern Division (the
2 Id. ¶ 4.
3 Id. ¶ 6.
4 Id.
5 Id. ¶¶ 6–8.
6 November 10, 2016 Agreement, attached as Exhibit 1 to the Pohl Declaration (Exhibit A).
7 December 7, 2016 Email, attached as Exhibit 2 to the Pohl Declaration (Exhibit A).
8 Kassab has admitted using Pohl’s client files (while erroneously claiming that they belonged to Precision Marketing)
to contact Pohl’s clients and former clients to solicit them to file claims against Pohl. See Declaration of Lance
Christopher Kassab, attached as Exhibit 1 to Kassab’s Motion to Dismiss, filed October 24, 2018.
“Federal Court Case”).9 Favre is a party to the Settlement Agreement, but he was not a party to
the Federal Court Case.10 Precision is the only Defendant in this lawsuit that was also party to the
Federal Court Case.11
Pohl timely brought this lawsuit against Kassab and the other Defendantsk on August 28,
2018.12 l
II. ARGUMENT c
A. Pohl’s Claims are Not Barred by Limitations. s
Pohl’s claims against Kassab accrued no earlier than Nsovember 2016 because they arise
from Kassab’s November 2016 purchase—and subsequent use—of information and property
stolen from Pohl. As no claim has a limitations period of less than two years, and Pohl brought
this lawsuit in August 2018, Pohl’s claims are not barred. Even if this were not so, Kassab has
failed to carry his burden to show that the claimas against him accrued outside the limitations period.
1. The summary judgment standard for the affirmative defense of limitations.
Kassab bears the burden to aned must “conclusively prove when” each of Pohl’s causes of
action accrued and must also nefgate the discovery rule to be entitled to summary judgment on
limitations. See Regency Fiyeld Services, LLC v. Swift Energy Operating, LLC, 622 S.W.3d 807,
818 (Tex. 2021) (“a deCfendant seeking summary judgment based on limitations must conclusively
establish that the limaitations period expired before the claimant filed suit”); see also Motion at 6
(acknowledgingf that Kassab bears this burden).
9 Pohl Declaration ¶¶ 10–11, attached as Exhibit A.
10 Id.
11 See id. ¶ 10; Federal Court Case Order, attached as Exhibit 4 to the Motion (showing parties in the caption). Pohl
made Precision a party to the Federal Court Case through a counterclaim. See generally Pohl’s Federal Counterclaim,
attached as Exhibit 2 to the Motion.
12 See generally Pohl’s Original Petition, filed August 28, 2018.
“Generally, a claim accrues when the defendant’s wrongful conduct causes the claimant to
suffer a legal injury, which gives the claimant the right to seek a judicial remedy.” Regency, 622
S.W.3d at 814 (emphasis added). Texas courts apply specific tests to determine the accrual of
certain claims, including the three claims at issue here. k
A claim for conversion generally accrues at the time of the defendant’sl “unlawful taking”
of the plaintiff’s property. See Burns v. Rochon, 190 S.W.3d 263, 271 (Tcex. App.—Houston [1st
Dist.] 2006, no pet.). When property is alleged to have been convesrted and then transferred to
another party, “each possession is a new conversion.” Pemex Esxploracion y Produccion v. BASF
Corp., CIV.A. H-10-1997, 2013 WL 5514944, at *31 (S.D. Tex. Oct. 1, 2013) (citation omitted)
(applying Texas law). There is a two-year limitations
period for conversion. See TEX. CIV. PRAC.
& REM. CODE § 16.003(a).
“A cause of action for trade-secret maisappropriation accrues when the trade secret is
actually used. Use of the trade secret means commercial use by which the offending party seeks
to profit from the use of the secret.”e Sw. Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699,
721–22 (Tex. 2016) (cleaned up)f. There is a three-year limitations period for TUTSA violations.
See TEX. CIV. PRAC. & REM y. CODE § 16.010(a). The civil conspiracy claim is derivative of the
underlying torts, and itC accrues “as to each alleged underlying tort when that tort occurs.” Agar
Corp., Inc. v. Electro Circuits Int’l, LLC, 580 S.W.3d 136, 145 (Tex. 2019).
2. Pohflf’s claims against Kassab accrued within two years of the initiation of this suit.
PoUhl brought suit on August 28, 2018 against Kassab and the other Defendants.13 Because
Pohl’s conversion claim accrued after August 28, 2016 and Pohl’s TUTSA claim accrued after
August 28, 2015, Kassab’s affirmative defense of limitations fails.
13 See generally Pohl’s Original Petition, filed August 28, 2018.
Pohl’s conversion claim arises from Kassab’s purchase and subsequent use of information
and property stolen from Pohl. See Amended Complaint ¶¶ 36–38.14 The undisputed evidence
shows that Kassab made this purchase through a contract dated November 10, 2016.15 Kassab
took possession of at least some of Pohl’s information and property in December 2k016.16
Pohl’s conversion claim against Kassab accrued when Kassab took polssession of Pohl’s
property. See Burns v. Rochon, 190 S.W.3d 263, 271 (Tex. App.—Houcston [1st Dist.] 2006, no
pet.). It does not matter if there was a prior claim for conversion sagainst other individuals or
entities, as “each possession is a new conversion.” Pemex Exsploracion y Produccion v. BASF
Corp., CIV.A. H-10-1997, 2013 WL 5514944, at *31 (S.D. Tex. Oct. 1, 2013) (emphasis added).
Because the contract to purchase the property is dated in November 201617 and Kassab was still
acquiring possession of the stolen property in December 2016,18 Pohl’s claim against Kassab for
conversion accrued, no earlier than Decembera 1, 2016—well within the two-year period.
Pohl’s TUTSA claim against Kassab is based on overlapping conduct. Kassab’s knowing
purchase and subsequent use of stolene trade secrets violated TUTSA. See Amended Complaint ¶¶
39–42. Pohl’s TUTSA claim agfainst Kassab accrued upon Kassab’s use of Pohl’s stolen trade
secrets. See Sw. Energy Proyd. Co. v. Berry-Helfand, 491 S.W.3d 699, 721–22 (Tex. 2016).
For Kassab’s liCmitation defense to prevail, he must conclusively show that Pohl’s TUTSA
claim against him accrued prior to August 28, 2015. See TEX. CIV. PRAC. & REM. CODE §
16.010(a) (profvfiding a three-year limitations period). Pohl’s claims accrued no earlier than
NovembeUr 10, 2016, as that is the date of the contract through which Kassab purchased Pohl’s
14 See also November 10, 2016 Agreement, attached as Exhibit 1 to the Pohl Declaration; Declaration of Lance
Christopher Kassab, attached as Exhibit 1 to Kassab’s Motion to Dismiss, filed October 24, 2018.
15 November 10, 2016 Agreement, attached as Exhibit 1 to the Pohl Declaration.
16 December 7, 2016 Email, attached as Exhibit 2 to the Pohl Declaration.
17 November 10, 2016 Agreement, attached as Exhibit 1 to the Pohl Declaration.
18 December 7, 2016 Email, attached as Exhibit 2 to the Pohl Declaration.
trade secrets.19 As Kassab was still acquiring possession of these materials in December 2016,20
his use of Pohl’s trade secrets—and the accrual of Pohl’s TUTSA claim—necessarily occurred
after November 10, 2016.
3. Kassab’s arguments and evidence about prior wrongdoing are irkrelevant to his
limitations defense. e
Kassab focuses on wrongful conduct by others—conduct that does not give rise to Pohl’s
claims in this lawsuit—to argue that limitations bars Pohl’s claims. See Mr iotion at 7–12. However,
in determining when claims against Kassab accrued, it is Kassab’Ds alleged wrongful conduct that
is relevant, not the conduct of others. Kassab’s participations in the sale and purchase of Pohl’s
information, through a contract dated in November 2016r, and Kassab’s subsequent use of that
information is the conduct that gives rise to Pohl’s claims. See Amended Petition ¶¶ 21–23, 26–
29, 33.21 l
Even if the wrongful conduct of oMthers (that did not give rise to Pohl’s claims) were
somehow relevant to Kassab’s limitaotions defense—and it is not—Kassab has not met his
summary judgment burden. Kasscab acknowledges that he bears the burden of negating the
discovery rule. See Motion at 6.22 To do so, Kassab must conclusively establish that Pohl “knew
or in the exercise of reasonable diligence should have known of the wrongful act and resulting
injury” more than three years prior to this lawsuit for his TUTSA claim and more than two years
prior for the convcersion claim. See Regency Field Services, LLC v. Swift Energy Operating, LLC,
622 S.W.3d 807, 817 (Tex. 2021).
19 November 10, 2016 Agreement, attached as Exhibit 1 to the Pohl Declaration.
20 December 7, 2016 Email, attached as Exhibit 2 to the Pohl Declaration.
21 See November 10, 2016 Agreement, attached as Exhibit 1 to the Pohl Declaration; Declaration of Lance Christopher
Kassab, attached as Exhibit 1 to Kassab’s Motion to Dismiss, filed October 24, 2018.
22 See also Pohl’s November 2018 Declaration ¶ 9, attached as Exhibit A to the Amended Petition (providing notice
of the potential application of the discovery rule).
Kassab purports to negate the application of the discovery rule through Pohl’s testimony.
See Motion at 11. However, Kassab’s evidence does not establish what he says it does. The
testimony Kassab cites only shows that at an undefined point prior to Pohl’s May 15, 2018
deposition, Pohl had knowledge of some wrongful conduct by some individual or kindividuals that
occurred in 2014.23 Nothing in Pohl’s testimony establishes when Pohl gaineld knowledge about
the 2014 conduct discussed, nor does it address when Pohl knew of Kassacb’s wrongful conduct.24
And, even if the testimony contained evidence that Kassab wishes its contained, it at most would
create a fact issue regarding the accrual of Pohl’s claims. Pohls has affirmatively testified that he
was not aware of the claims in this case in the two-year period prior to the filing of this case.25
Limitations does not bar Pohl’s claims, and Kassab has not shown that he is entitled to judgment
as a matter of law.
B. Res Judicata Does Not Apply to Poahl’s Claims Against Kassab.
Kassab confuses and contorts the conduct at issue in this lawsuit to argue that Pohl’s claims
are barred by res judicata as a result oef the settlement and dismissal of the Federal Court Case. See
Motion at 12–16. Because Kassafb was not a party to the judgment in the Federal Court Case, he
tries to base his res judicatya defense on an unsupported allegation that he is in privity with
Precision—which wasC a party to the Federal Court Case. Id. at 13–14. Tellingly, Precision did
not move for summary judgment (or to dismiss) on the basis that res judicata bars the claims in
this lawsuit.26 f f
23 See Exhibit 3 to the Motion (discussing Pohl’s knowledge and contentions made in May 2018).
24 See generally id.
25 Pohl’s November 2018 Declaration ¶ 9, attached as Exhibit A to the Amended Petition; see also Pohl Declaration
¶ 9, attached as Exhibit A.
26 See generally Motion to Dismiss filed by Scott Favre, Scott M. Favre Public Adjuster, LLC and Precision Marketing
Group, LLC on November 16, 2018.
Kassab is not entitled to summary judgment on his res judicata defense because he has not
provided evidence that conclusively establishes its three elements. “Res judicata requires: (1) a
prior final judgment on the merits by a court of competent jurisdiction, (2) identity of parties or
those in privity with them, and (3) a second action based on the same claims thakt were raised or
could have been raised in the first action.” Burchfield v. Prosperity Bank, 408l S.W.3d 542, 545–
46 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (citation omitted). c
The second and third elements are at issue here. Kassab scannot establish the second
element, because he admits he was not a party to the prior judsg  ment and provides no evidence
that he is in privity with anyone who was a party to a prior judgment. Furthermore, Kassab’s
evidence does not establish the third element—that Pohl’s claims against Kassab are “the same
as” the claims settled in the other case or that they could have been brought in that case—as the
evidence shows that each of the two actions haas distinct factual bases and parties.
1. Kassab fails to conclusively establish he is in privity with any party to a final judgment.
Kassab is not entitled to summeary judgment because he provided no evidence that he is in
privity with any party to the judgmfent in the Federal Court Case, nor can he provide such evidence.
See Motion at 13. The couryt in the Federal Court Case dismissed all claims with prejudice after
the parties entered intoC the voluntary Settlement Agreement.27 Kassab was not a party to that
agreement or to thea Federal Court Case, and no party to the Federal Court Case represented his
interests in that faction.
TUexas has rejected categorical approaches to privity, and a court must examine the
particular circumstances of a case before it can determine if parties are in privity. See Burchfield,
408 S.W.3d at 546–47. To determine if a person is in privity with a party to a prior action, a court
27 See Federal Court Case Order, attached as Exhibit 4 to the Motion.
must determine if that person satisfies one of three tests: “(1) they can control an action even if
they are not parties to it; (2) their interests can be represented by a party to the action; or (3) they
can be successors in interest, deriving their claims through a party to the prior action.” Burchfield,
408 S.W.3d at 546–47 (quoting Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 653k (Tex. 1996)).
Kassab does not allege that any of these three tests are satisfied, let alonle provide evidence
to conclusively establish privity with a party to the Federal Court Case. Scee Motion at 13. Rather
than addressing the controlling Texas standard, Kassab asserts thats privity exists because Pohl
alleges in this lawsuit that Kassab conspired with Precision—asn entity which was a party to the
Federal Court Case. Motion at 13. Kassab provides no Texas authority to support this assertion,
instead, Kassab cites to three out-of-state cases, none of which apply Texas law. Id.28
While it is possible for co-conspirators to be in privity with each other, under Texas law,
allegations of conspiracy alone are not enougah—Kassab must show that one of the three tests for
privity is satisfied. See Rogers v. Walker, 13-12-00048-CV, 2013 WL 2298449, at *4 (Tex.
App.—Corpus Christi May 23, 2013,e pet. denied); New York Pizzeria, Inc. v. Syal, 53 F. Supp. 3d
962, 969 n.6 (S.D. Tex. 2014) (“Tfhis Court predicts that the Texas Supreme Court would not adopt
a rule that alleged coconspiryators are always in privity for the purposes of claim preclusion, but
would instead hold thaCt courts must consider whether the circumstances justify such a ruling.”).
Kassab does not allege or provide any evidence that he (1) had any control in relation to
the Federal Cofufrt Case; (2) that Precision, any other party, represented Kassab’s interests; or (3)
Kassab wUas a successor in interest to Precision or any other party.
28 Kassab relies on out-of-state cases which are distinct from the facts of this case. For example, he relies on RSM
Prod. Corp. v. Freshfields Bruckhaus Deringer U.S. LLP, 800 F. Supp. 2d 182 (D.D.C. 2011). See Motion at 13. The
court in RSM found co-conspirators to be in privity with each other after the plaintiff attempted to assert the “exact
same alleged corrupt conspiracy” with a new party after that conspiracy claim had been dealt with in a prior action.
See RSM, 800 F. Supp. 2d at 194. The conspiracy alleged in this lawsuit was not part of the Federal Court Case.
Kassab cannot provide evidence to establish control, because, “[i]n determining whether
privity exists through control over a prior action, Texas courts have focused on whether an
individual actively and openly participated in the prior proceedings to such an extent that it was
clear that the individual had the right to direct them.” McNeil Interests, Inc. v. Qkuisenberry, 407
S.W.3d 381, 389 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (quotation lomitted). There is
no evidence to establish that Kassab “openly participated”—or participatced at all—in the Federal
Court Case. s
Kassab also completely fails to prove that Precision reprsesented his interests in the Federal
Court Case. Kassab does not state that he had an interest in the Federal Court Case, let alone
identify that interest or provide evidence that Precision could have represented that interest. See
generally Motion; see also Rogers, 2013 WL 2298449, at *3 (refusing to affirm summary
judgment when movant “did not state that [maovant] had an interest in the probate action, identify
his interest, or state that [a party to the action] could have represented his interest”). The same is
true for the successor in interest test.e No allegations or evidence from Kassab even address this
test, let alone carry Kassab’s sumfmary judgment burden on the issue. See generally Motion.
2. The factual basesy of Pohl’s claims against Kassab are not the “same” as those asserted
in the Federal Court Case, nor could Pohl’s claims have been asserted in that action.
Kassab’s failure to provide evidence of privity prevents him from establishing res judicata.
However, even ifc he had provided evidence of privity, Kassab does not conclusively establish that
this lawsuit “arises out of the same subject matter as the” Federal Court Case and that it could have
been litigated there. Citizens Ins. Co. of Am. v. Daccach, 217 S.W.3d 430, 449 (Tex. 2007).
To determine whether the Federal Court Action shares the same “subject matter” as this
lawsuit, the Court should look to “the factual matters that make up the gist of the complaint,
without regard to the form of action.” Id. (cleaned up). “This should be done pragmatically, giving
10
weight to such considerations as whether the facts are related in time, space, origin, or motivation,
whether they form a convenient trial unit, and whether their treatment as a trial unit conforms to
the parties’ expectations or business understanding or usage.” Id. (cleaned up).
Kassab cites to two pieces of evidence to show “the factual basis of Pohl’sk claims or even
potential claims in the Federal Court Case.” Motion at 14. First, he citesl to Pohl’s Federal
Counterclaim filed in that action. See id. at 13–14 (citing to Pohl’s Federacl Counterclaim, attached
as Exhibit 2 to the Motion). Second, he cites a June 2018 affidavit sfrom Pohl. See id. at 14–15
(citing to Exhibit 1 to the Motion). Neither is sufficient to satsisfy Kassab’s summary judgment
burden.
First, contrary to what Kassab’s misleading citations indicate, the factual basis of Pohl’s
Federal Counterclaim does not overlap at all with the factual bases of this lawsuit. See generally
Pohl’s Federal Counterclaim, attached as Exhaibit 2 to the Motion. To disguise this fact, Kassab
impermissibly focuses on the “form of action,” noting that Pohl “alleged theft” in the
Counterclaim. See Motion at 14. Heowever, the factual basis for that claim in the Federal Court
Case focuses entirely on impropefr billing and charging of expenses by Precision, not the theft of
personal property at issue in ythis lawsuit. Compare Pohl’s Federal Counterclaim, at 2–5, attached
as Exhibit 2 to the MoCtion (discussing conversion of “funds”), with Amended Petition ¶¶ 20–26,
36–38 (discussing the conversion of Pohl’s “confidential information and property”).
Kassabf’fs citation to Pohl’s Federal Counterclaim does not show that the factual bases of
the two aUctions overlap or are the same; it instead demonstrates that the allegations before the
federal court were entirely separate from the allegations in this lawsuit. See Citizens Ins. Co. of
Am. v. Daccach, 217 S.W.3d 430, 449 (Tex. 2007) (discussing how courts look to the “gist of the
complaint”). Pohl’s claims do not arise out of the alleged fraudulent billing practices of entities
11
or individuals in the Federal Court Action. See generally Amended Petition. Pohl’s claims against
Kassab in this lawsuit arise out of the conversion and theft of personal property. See id.
Second, Kassab’s other piece of evidence is Pohl’s June 2018 affidavit filed in response to
a grievance complaint initiated by Kassab against Pohl. See Motion at 14–15 (citking to Exhibit 1
to the Motion). Kassab’s use of this affidavit is misleading because the affidlavit reflects Pohl’s
knowledge after the conclusion of the Federal Court Case. Nor does thce affidavit establish that
the basis of the two actions was the same. s
Kassab triumphantly notes that the affidavit alleges that sFavre (who was not a party to the
Federal Court Case) “appears [to have] eventually sold those items and the information therein to
[Kassab].” See Motion at 15 (quoting Exhibit 1 to the Motion) (alterations from Motion). This
allegation does not establish that Pohl could have brought his current claims in the Federal Court
Case. Pohl’s statement in June 2018—over aa year after the judgment in the Federal Court
Case—about what he believed occurred does not show that the conversion claim in this lawsuit
could have been brought years prior. e In fact, the testimony makes perfect sense, as Pohl filed this
lawsuit just months later, in Augufst 2018.29 Furthermore, even if Pohl did have this knowledge of
prior to the judgment in the Fyederal Court Case, that does not change the fact that the subject matter
of the Federal Court CaCse differs from the factual basis of this lawsuit. See Barr v. Resolution Tr.
Corp. ex rel. Sunbelt Fed. Sav., 837 S.W.2d 627, 631 (Tex. 1992) (“A subsequent suit will be
barred if it arifs f es out of the same subject matter of a previous suit and which through the
exercise oUf diligence, could have been litigated in a prior suit.” (emphasis added)).
Kassab was not a party to the Federal Court Case, the Settlement Agreement or the
judgment. Ignoring the applicable Texas legal standard, Kassab simply asserts that he was in
29 See generally Pohl’s Original Petition, filed August 28, 2018.
12
privity with Precision. Assertions without evidence do not satisfy Kassab’s summary judgment
burden to establish each essential element of res judicata, and his argument fails. Kassab also fails
to demonstrate that the gist of the Federal Court Case overlaps with the present lawsuit, which is
also fatal to Kassab’s res judicata defense. Summary judgment is not available. k
C. The Attorney-Immunity Doctrine Does Not Apply. C l
Kassab contrives an argument that, as an attorney, he is immcune from liability for
converting the property of others and misappropriating trade secretss because after his wrongful
acquisition of property, he used that stolen information for the “sacquisition of clients and filing of
lawsuits.” See Motion at 20. Texas does not recognize any application of the attorney-immunity
doctrine outside of an attorney–client relationship, and Kassab’s wrongful conduct was not the
type of conduct an attorney uniquely engages in to discharge duties to a client. Kassab’s attorney-
immunity doctrine defense fails. a
The Texas Supreme Court has held that two inquiries are relevant to an attorney-immunity
defense: “the type of conduct at issuee and the existence of an attorney–client relationship at the
time.” Youngkin v. Hines, 546 Sf.W.3d 675, 683 (Tex. 2018). The claims against Kassab do not
fall within the attorney-immyunity doctrine because the conduct at issue does not qualify as “the
kind of conduct in whCich an attorney engages when discharging his duties to his client.” Canty
Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015). Additionally, Kassab has not established
the existence offf an attorney–client relationship at the time of his wrongful conduct.
KUassab purchased the stolen information and then used it to solicit and advertise to Pohl’s
clients/prospective clients. See Motion at 18–19 (discussing what Kassab contends is the “basis
for Pohl’s lawsuit”). Kassab’s knowing purchase of stolen property prior to his representation of
a client is neither within the scope of his representation of a client nor is it an activity undertaken
13
in a “uniquely lawyerly capacity.” See Landry’s, 2021 WL 2021130, at *3. The use of the
information by Kassab to solicit and advertise to obtain clients is not within the scope of client
representation, because this conduct necessarily precedes the “meeting of the minds” between a
potential client and attorney necessary to form an attorney–client relationship. Seke Tanox, Inc. v.
Akin, Gump, Strauss, Hauer & Feld, L.L.P., 105 S.W.3d 244, 254–55 (Tex. Aplp.—Houston [14th
Dist.] 2003, pet. denied). c
Kassab’s reliance on the First Court of Appeal’s opinion (in wshich that court affirmed this
Court’s denial of his TCPA Motion) is misplaced. Kassab suggessts that the court’s conclusion that
his conduct “qualifies as statements or conduct that arose out of a commercial transaction
involving the type of legal services Kassab provides” demonstrates that his conduct is of the “kind”
that attorneys provide and is thus protected by the attorney-immunity doctrine. See Motion at 19–
20 (discussing Kassab v. Pohl, 612 S.W.3d 5a71, 578 (Tex. App.—Houston [1st Dist.] 2020, pet.
denied)). Kassab’s argument conflates the appellate court’s discussion of the scope of a
commercial transaction with the scoepe of Kassab’s duties to a client. The fact that Kassab’s
conduct was part of a commerciafl transaction does not mean that it was both “within the scope of
client representation” and wyas “not foreign to the duties of a lawyer.” Youngkin, 546 S.W.3d at
682. C
Kassab also failed to establish or provide any evidence of “the existence of an attorney–
client relationsfhfip at the time” of his wrongful conduct. Youngkin, 546 S.W.3d at 683. Kassab
attempts Uto obfuscate his inability to provide evidence of this essential fact by discussing how the
attorney-immunity doctrine can apply “prior to any litigation.” See Motion at 19. While the
doctrine can apply prior to litigation, that is not relevant. Pohl asserts claims for conduct, not just
before litigation, but before Kassab had a single client with whom he could have the requisite
14
attorney–client relationship. See, e.g., Amended Petition ¶ 29 (discussing how Kassab used “the
stolen confidential information and property” to subsequentially solicit “clients/prospective clients
to act as plaintiffs”); see also Tanox, 105 S.W.3d at 254–55 (noting how attorney–client
relationship cannot be formed prior to a “meeting of the minds”). k
In sum, Kassab cannot show that his wrongful actions were “within lthe scope of client
representation” and were “not foreign to the duties of a lawyer.” Youngckin, 546 S.W.3d at 682.
In other words, Kassab is entitled to immunity only if he can establishs as a matter of law that when
he engaged in his alleged wrongful acts, he was acting nots only within the scope of client
representation, but that there was something “particular to ‘the office, professional training, skill,
and authority of an attorney’ about” his alleged wrongful conduct. See Landry’s, Inc. v. Animal
Legal Def. Fund, --- S.W.3d ---, 19-0036, 2021 WL 2021130, at *3, *8 (Tex. May 21, 2021)
(citation omitted). Kassab has not shown thisa. See Motion at 17–20.
Because Kassab did not provide evidence of the existence of an attorney–client relationship
at the time of his wrongful actiones and that those actions were within the scope of his
representation, his request for sufmmary judgment on the attorney-immunity doctrine must be
denied. The fact that his wryongful conduct of purchasing stolen information was not the type of
conduct undertaken in Ca “uniquely lawyerly capacity” only further supports this conclusion.
III. CONCLUSION
For thef fforegoing reasons, Plaintiffs Michael Pohl and Law Offices of Michael A. Pohl
respectfuUlly request that Kassab’s Motion be in all respects denied.
15
Dated: July 26, 2021 Respectfully submitted,
REYNOLDS FRIZZELL LLP
By: /s/ Jean C. Frizzell
Jean C. Frizzell
State Bar No. 07484650 k
1100 Louisiana St., Suite 3500 e
Houston, Texas 77002 l
Tel. 713.485.7200
Fax 713.485.7250 c
jfrizzell@reynoldsfrizzell.rcom
Attorney for PlaintifDfs Michael Pohl
and Law Office of Michael A. Pohl, PLLC
CERTIFICATE OF SERrVICE
I hereby certify that a true and correct copy of this document was served on all counsel of
record pursuant to the Texas Rules of Civil Procedure on this 26th day of July, 2021.
M /s/ Jean C. Frizzell
 Jean C. Frizzell
16"