filing_id,date,doc_type,party,description,doc_type_detail,procedural_posture,chain,outcome,phase,filename,relief_requested,full_text
65,2024-01-19,MJNOV,Kassab,Mtn for JNOV and Disregard Jury Findings,"Kassab Defendants' Motion for Judgment Notwithstanding the Verdict and to Disregard Jury Findings, asserting 10 grounds for JNOV (no trade secret, no misappropriation evidence, limitations, unlawful acts doctrine, privilege to disclose, grievance immunity, judicial proceedings privilege, attorney immunity, unrecoverable damages, no causation), plus arguments that conspiracy is preempted by TUTSA and exemplary damages are improper due to non-unanimous Q17 finding","Post-judgment motion filed January 19, 2024, 28 days after entry of the Final Judgment on December 22, 2023. Kassab seeks JNOV on all claims or alternatively on exemplary damages and conspiracy claim. Filed simultaneously with Motion for New Trial.",POST-1,N/A,Phase 5,2024-01-19_MJNOV_Kassab-Mtn-for-JNOV-and-Disregard-Jury-Findings_FILED.pdf,"Judgment notwithstanding the verdict in favor of Kassab on all claims (take-nothing judgment), or alternatively: (1) JNOV on exemplary damages due to non-unanimous Q17 finding; (2) JNOV on conspiracy claim as preempted by TUTSA, eliminating joint and several liability; (3) disregard of jury findings","1/19/2024 3:31 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 83597613
By: Rhonda Momon
Filed: 1/19/2024 3:31 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et al. § IN THE DISTRICT COURT
V. § OF HARRIS COUNTY, TEXAS
SCOTT FAVRE, et al. § 281st JUDICIALk DISTRICT
THE KASSAB DEFENDANTS’ MOTION FOR JUDGMCENT NOT
WITHSTANDING THE VERDICT AND TO DISREGARD JURY FINDINGS
Defendants, Lance Christopher Kassab and Lance Chtristopher Kassab, P.C.
d/b/a The Kassab Law Firm (“Kassab”), files this Motion for Judgment
Notwithstanding the Verdict and to Disregard Jurey Findings and would show as
follows. u
SUMMARY
Pohl’s claims against Kassab are abarred as a matter of law. Therefor the Court
should disregard the findings of the jury and enter a judgment notwithstanding the
verdict in favor of Kassab for aney one of the following reasons:
1. Pohl’s claims are ba
rrfed as a matter of law because the information at
issue is not a trade secret:
• not Pohl’s trade secret because he does not own the information at
issue; l
• not Piohl’s (or anyone’s) trade secret because the information at issue
dooes not have any independent economic value from not being
generally known;
• not Pohl’s (or anyone’s) trade secret because he made no reasonable
measures to keep the subject information secret.
2. Pohl’s claims fail as a matter of law because there is no evidence that
Kassab engaged in regular or willful misappropriation; specifically,
there is no evidence that Kassab knew the information was Pohl’s trade
secret or had been acquired by improper means. The jury’s finding that
those associated with Precision, did not misappropriate anything
precludes liability against Kassab. k
3. Pohl’s claims are barred by limitations because they accruedC, if at all, in
the summer of 2014 when Precision engaged in the first acts of alleged
misappropriation, or at the latest in the spring ofi 2015, when both
Precision and Favre engaged in additional acts of alleged
misappropriation.
4. Pohl’s claims are barred by the unlawful acts doctrine because Pohl’s
acts are inexorably intertwined withl his crimes.
5. Pohl’s claims are barred becauMse Kassab had the privilege to use the
client-related information to disclose to those clients1 that Pohl had
committed unlawful actiivities.
6. Pohl’s claims are barred as a matter of law to the extent they are
predicated on oKassab’s filing of a grievance against Pohl for which
Kassab has labsolute and unqualified immunity.
7. Pohl’s cilaims are barred by the judicial proceedings privilege because
they arise out of communications that Kassab made to prospective
clients (solicitation letters), and to actual judicial proceedings (the
barratry litigation and grievance process).
1 We will use “clients” to refer to actual, potential or rejected clients.
8. Pohl’s claims are barred by attorney immunity because an attorney
cannot recover against another attorney for conduct the second attorney
engaged in as part of the discharge of his duties as a lawyer representing
clients. k
9. Pohl’s claims fail because his purported damages are unrecCoverable as
a matter of law, or because Pohl presented no evidence to support any
actual losses. i
10. Pohl’s claims fail for lack of causation because Pohl’s barratry was the
sole cause of his damages;, Kassab conduct did not cause damages to
Pohl.
Even if the Court does enter judgment in flavor of Kassab on the preceding grounds,
it should at least enter judgment notMwithstanding the verdict in favor of Kassab on
exemplary damages because predicate findings for exemplary damages were not
answered by the jury unanimiously and on Pohl’s conspiracy claim because it is
preempted by TUTSA.2
o ARGUMENT
A trial courtl may disregard a jury's findings and grant a motion for judgment
notwithstandinig the verdict (JNOV) when a directed verdict would have been proper.
See TEX. R. CIV. P. 301; Prudential Ins. Co. v. Fin. Review Servs., Inc., 29 S.W.3d 74,
77 (Tex. 2000). “A JNOV should be granted when the evidence is conclusive and one
party is entitled to recover as a matter of law or when a legal principle precludes
2 Texas Uniform Trade Secrets Act.
recovery.” B&W Supply, Inc. v. Beckman, 305 S.W.3d 10, 15 (Tex. App.—Houston [1st
Dist.] 2009, pet. denied); United Parcel Serv., Inc. v. Tasdemiroglu, 25 S.W.3d 914,
916 n.4 (Tex. App. – Houston [14th Dist.] 2000, pet. denied) (“A court should grant a
motion for judgment notwithstanding the verdict if a legal principle prekvents a party
from prevailing on its claim.”). For the reasons enumerated belowC, the Court should
enter judgment notwithstanding the verdict because Pohl’s claims against Kassab
fail as a matter of law. i
I. Pohl’s claims against Kassab are barred as a matter of law
because the information at issue eis not a trade secret
owned by Pohl.
“To bring a successful TUTSA claim, the claimant must first show that it owns
a trade secret in the information it sleeks to protect.” Title Source, Inc. v.
HouseCanary, Inc., 612 S.W.3d 517, 5M27 (Tex. App.—San Antonio 2020, pet. denied);
TEX. CIV. PRAC. & REM. CODE § 134A.002(3-a), (6) (requiring claimant to be a “owner”
of the trade secret informaition at issue). The information must also derive
independent economic value from not being generally known to, and not being readily
ascertainable througho proper means by, another person who can obtain economic
value from the d
islclosure or use of the information. TEX. CIV. PRAC. & REM. CODE §
134A.002(6). Aind it is axiomatic that “the subject matter of a trade secret must be
secret.” J.C. Kinley Co. v. Haynie Wire Line Serv., Inc., 705 S.W.2d 193, 198 (Tex.
App.—Houston [1st Dist.] 1985, writ ref'd n.r.e.); TEX. CIV. PRAC. & REM. CODE §
134A.002(6) (defining “trade secret” to mean certain types of information in which
the owner “has taken reasonable measures under the circumstances to keep the
information secret”). The information at issue here is not Pohl’s trade secret as a
matter of law because Pohl is not the owner of the information, the information does
not derive independent economic value to Pohl from not being generally known, and
the information is not secret, nor did Pohl take reasonable measurkes under the
circumstances to keep the information secret. C
Pohl is not the owner of the attorney-client contracts between him and his
clients. Rather, attorney-client contracts are part of the cliient’s file which is owned
by the client, not the lawyer. See In re George, 28 S.W.3d 511, 516 (Tex. 2000) (“The
attorney is the agent of the client, and the work product generated by the attorney in
representing the client belongs to the client.”) (emphasis added); In re McCann,
422 S.W.3d 701, 704-705 (Tex. Crim. Alpp. 2013) (“[T]he Texas Supreme Court
recognized explicitly that an attorneyM is an agent of his client and implicitly that a
client owns the contents of his or her file.”). The fact that Pohl can assert a lien
over the client file does not miean he is the rightful, legal, or equitable owner of the
contracts. See In re McCann, 422 S.W.3d 701, 706 (Tex. Crim. App. 2013) (noting that
“a lien, by its definitioon, is a transitory interest in someone else's property and,
therefore, the attolrney asserting such a lien never owns the property at issue, the
client owns thei file by implication (if the attorney does not)”) (emphasis added). Pohl,
as an agent, cannot claim trade secret protection in property belonging to his clients,
the principals. See RMS Software Dev. v. LCS, Inc., No. 01-96-00824-CV, 1998 Tex.
App. LEXIS 1053, at *11 (Tex. App.—Houston [1st Dist.] Feb. 19, 1998, no pet.)
(unpublished) (“RMS is not the owner of the trade secret involved in this lawsuit,
thus it has no standing to sue for misappropriation of that secret.”).
Moreover, the information is not a trade secret because Pohl offered no
evidence at trial that the attorney-client contracts or list of actual, kpotential, or
rejected clients “derives independent economic value, actual or pCotential, from not
being generally known to, and not being readily ascertainable through proper means
by, another person who can obtain economic value from thie disclosure or use of the
information.” TEX. CIV. PRAC. & REM. CODE § 134A.0
02(6)(B). To meet his burden,
Pohl was required to prove that the contracts or compilation of client contact
information provided him with a “competitive advantage.” Fmc Techs. v. Murphy, No.
01-21-00455-CV, 2023 Tex. App. LEXIS 59l84, at *62 (Tex. App.—Houston [1st Dist.]
Aug. 10, 2023, pet. filed) (mem. op.). PMohl failed to plead and present any evidence to
demonstrate how the information at issue provided him with a competitive
advantage.3 i
The information at issue has no demonstrated independent value to Pohl
because, regardless ofo its disclosure, Pohl can still use the client-related information.
Pohl’s only intereslt was to keep the identities of individuals whom Pohl unlawfully
3 Nor could nhe because as a matter of law, Pohl cannot have a “competitive advantage” by using the
client-relaUted information to the exclusion of the potential, actual and rejected clients. See ERI
Consulting Eng'rs, Inc. v. Swinnea, 318 S.W.3d 867, 872 (Tex. 2010) (“if the fiduciary … acquires any
interest adverse to his principal, without a full disclosure, it is a betrayal of his trust and a breach of
confidence, and he must account to his principal for all he has received.”); TEX. R. PROF’L COND.
1.05(b)(4) (lawyer may not use confidential information of a former client to the client’s disadvantage
or use “privileged information of a client for the advantage of the lawyer or of a third person, unless
the client consents after consultation.”); id. at 1.08(f) (generally prohibiting a lawyer from “acquir[ing]
a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for
a client”).
solicited from being disclosed to lawyers like Kassab who could inform those
individuals about Pohl’s unlawful solicitation. That interest is not only against public
policy that favors disclosure of criminal conduct,4 but it is insufficient to qualify as
independent economic value under TUTSA. “Without more, … a comkbination [of
information] does not qualify as a trade secret; it must also provCide ‘a competitive
advantage.’” Fmc Techs., 2023 Tex. App. LEXIS 5984, at *62. Pohl presented no
evidence at trial that the information at issue provided ihim with a competitive
advantage.
Moreover, there is no evidence that Pohl took “reasonable measures under the
circumstances to keep the information secret.” TEX. CIV. PRAC. & REM. CODE §
134A.002(6). The contracts that Pohl had wlith his actual, potential or rejected clients
are not secret; they are not even conMfidential or privileged as a matter of law. See
Landry v. Burge, No. 05-99-01217-CV, 2000 Tex. App. LEXIS 6606, at *18 (Tex.
App.—Dallas Oct. 2, 2000, no piet.) (mem. op.) (recognizing “the general rule that
a client's identity is not privileged” or considered “confidential
information” undero the disciplinary rules); Borden, Inc. v. Valdez, 773 S.W.2d
718, 720-21 (Tex. lApp.—Corpus Christi 1989, no writ) (noting that “the terms and
4 “[P]ublic pnolicy strongly favors exposure of crime.” Wal-Mart Stores, Inc. v. Medina, 814 S.W.2d 71,
73 (Tex. AUpp.—Corpus Christi 1991, writ denied). Kassab had an ethical obligation to notify the State
Bar and the affected individuals of Pohl’s misconduct under the rules of ethics and as an officer of the
court. See Tex. Disc. R. Prof’l Cond. 8.03(a) (“a lawyer having knowledge that another lawyer has
committed a violation of applicable rules of professional conduct that raises a substantial question as
to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the
appropriate disciplinary authority.”); id. at Cmt. 1 (“Reporting a violation is especially important
where the victim is unlikely to discover the offense.”). Kassab was doing what Pohl should have done,
disclosing misconduct to the individuals. See Cluck v. Mecom, 401 S.W.3d 110, 114 (Tex. App.—
Houston [14th Dist.] 2011, pet. denied) (“A fiduciary has an affirmative duty to make a full and
accurate confession of all his fiduciary activities, transactions, profits, and mistakes.”).
conditions of an attorney's employment and the purpose for which an attorney has
been engaged” are considered “nonconfidential matters”); Jim Walter Homes, Inc. v.
Foster, 593 S.W.2d 749, 752 (Tex. Civ. App.—Eastland 1979, no writ) (“The general
rule appears to be that the fee arrangement is not privileged.”); see aklso Jordan v.
Sony BMG Music Entm't, Inc., No. H-06-1673, 2008 U.S. Dist. LECXIS 47415, at *5
(S.D. Tex. 2008) (recognizing that a attorney-client contract “is not privileged.”);
Early, Ludwick & Sweeney, LLC v. Steele, 1998 Conn. Siuper. LEXIS 2256, at *6
(Super. Ct. 1998) (concluding list of client contact information was not a trade secret
owned by a law firm because the clients’ identities were “known to the defendants in
their respective lawsuits.”).
But even if the contracts or lists arel confidential, “confidential information is
not necessarily a trade secret.” ReynMolds v. Sanchez Oil & Gas Corp., No. 01-18-
00940-CV, 2023 Tex. App. LEXIS 8903, at *49 (Tex. App.—Houston [1st Dist.] Nov.
30, 2023, no pet. h.) (mem. op.i on rehearing); Early, Ludwick & Sweeney, LLC, 1998
Conn. Super. LEXIS 2256, at *7 (“The efforts made by [the law firm] to maintain
secrecy of the alleged otrade secrets appear to be no more than the usual precautions
taken by a law firlm to ensure clients' files remain confidential. Not all confidential
information mieets the definition of trade secret.”). Pohl alleged that he “made clear
to Precision and its representatives the confidential and nature of the above listed
information” and that “Precision and its representatives expressed their
understanding of the confidential and proprietary nature of the information and that
the information belonged to Pohl.”5 Pohl did not plead that he told Precision that the
information was his trade secrets.
Moreover, Pohl presented no evidence that the information was not generally
known, or was not readily ascertainable through proper means. The idekntity of Pohl’s
clients was even known to third parties, like the defendants in thCe underlying cases
and their lawyers. And the uncontroverted testimony at trial established that the list
of clients was created by Precision, not by Pohl, and was voluintarily produced to Scott
Favre, Tina Nicholson and several third parties6 in August 2016 as part of discovery
during the Mississippi litigation. Moreover, this information was produced to others
in discovery before the information was provided to Kassab – without a protective
order, confidentiality stamp, confidentialitly agreement, or anything else prohibiting
its disclosure. Furthermore, Pohl nevMer filed an injunction or any other document in
the Mississippi litigation to prevent disclosure of what he claims are his trade secrets.
Finally, the “Master List” of Piohl’s alleged clients has been available on PACER for
the last six years and is still there today.
Accordingly, anoy evidence that Pohl took reasonable measures under the
circumstances to kleep the information secret is “so weak as to do no more than create
a mere surmisie, [and is therefore] no more than a scintilla and, thus, no evidence.”
Beckman, 305 S.W.3d at 16; Sci. Mach. & Welding, Inc. v. Rose, No. 03-20-00564-CV,
5 Plaintiffs’ First Amended Petition, ¶ 25.
6 Those parties included, among others, Nathan Farmer, Charles Mikhail, Carl Hagwood, James
Welch, Scott Walker, Steve Seymour, Kirk Ladner, Ciyndi Rusnak, Marian Mchehee, Yousef
Nasrallah, Trevor Brock and Robin Gross.
2022 Tex. App. LEXIS 1884, at *6 (Tex. App.—Austin Mar. 23, 2022, no pet. h.) (mem.
op.) (trade secret status was waived because, “despite having the opportunity under
a protective order to designate the drawings as ‘confidential’ during this litigation,
[the party] failed to do so and produced them without such designationk.”); Baxter &
Assocs., L.L.C. v. D&D Elevators, Inc., No. 05-16-00330-CV, 2017C Tex. App. LEXIS
1352, at *28 (Tex. App.—Dallas Feb. 15, 2017, no pet.) (mem. op.) (information in
question was not the subject of any efforts to maintain its secirecy when “the ‘customer
lists’ in question are not labeled as confidential or proprietary”); Stemtech Int'l Inc. v.
Drapeau, No. 1:16-cv-918-RP, 2016 U.S. Dist. LEXIS 178591, at *35 (W.D. Tex. 2016)
(“public availability of [the information] makes them ineligible for trade secret
protection … when disclosure is made [andl] … the persons to whom the information
is disclosed are under no obligation toM keep it confidential.”).
Because Pohl is not the owner of a “trade secret” as a matter of law, the Court
should enter a JNOV in favori of Kassab. See Glob. Water Grp., Inc. v. Atchley, 244
S.W.3d 924, 931 (Tex. App.—Dallas 2008, pet. denied) (trial court did not err in
granting judgment onotwithstanding the verdict on a corporation's claims of
misappropriation olf trade secrets given that a trade secret was not shown).
II. Piohl’s claims fail as a matter of law because there is no
oevidence Kassab engaged in misappropriation, either
regular or willful.
Pohl alleged that Favre and Precision illegally misappropriated trade secrets
from him, and that Kassab subsequently committed indirect misappropriation by
10
acquiring illegally misappropriated trade secrets from Favre and Precision.7
Although Pohl originally sued Precision, he non-suited his claims against Precision.
Nevertheless, Precision was designated as a responsible third party, and defined in
the charge to include Precision’s former owners (Scott Walker, Steve kSeymour and
Kirk Ladner) prior to May 12, 2015, and Favre after May 12, 201C5.8 When the jury
was asked whether Precision misappropriated trade secrets from Pohl, it found that
Precision did not.9 In consistent fashion, the jury answereid “0” in Question 4 when
asked to assign what percentage of the “fault that caused the injury” was attributable
to Precision.10 These findings demonstrate that there is no evidence that Kassab
could have engaged in regular or willful misappropriation because he obtained the
information legally from parties who did nlot misappropriate it.
To be liable for misappropriatiMon based upon the acquisition of a trade secret,
Kassab must “know[] or ha[ve] reason to know that the trade secret was acquired by
improper means” or “derived firom or through a person who used improper means to
7 Plaintiff’s First Amendedp Petition, at ¶ 21 (“Favre and Precision illegally misappropriated
Pohl’s proprietary ando confidential information and property …which included information
about and/or communicCations with as many as 10,000 or more of Pohl’s clients/prospective clients.
Favre and Precision stole physical copies of certain of the information, stole Pohl’s computers,
and misappropriateda electronic data to which they had access through Precision’s work for Pohl.”)
(emphasis addedc); iid. at ¶ 40 (“Favre, Precision, and Nicholson willfully and maliciously
misappropriated iPohl’s trade secrets by acquiring them through improper means—specifically, by
theft.”); id. at o¶ 41 (“Favre, Precision, and Nicholson willfully and maliciously misappropriated Pohl’s
trade secretns by disclosing them via sale to Kassab and Montague (who purchased the trade
secret inUformation knowing that it had been stolen) without the express or complied consent of
Pohl.”) (emphasis added); id. at ¶ 42 (“All Defendants willfully and maliciously misappropriated Pohl’s
trade secrets by using them without the express or implied consent of Pohl.”).
8 See Verdict, at Definitions.
9 Verdict, Question 2(a)(3) and 2(b)(3).
10 Verdict, Question 4(3).
11
acquire the trade secret.” TEX. CIV. PRAC. & REM. CODE §§ 134A.002(3)(A), (B)(ii)(a).
But here, the jury determined that Precision did not engage in any
misappropriation.11 And, if Precision and its former owners did not engage in
misappropriation by wrongfully acquiring the information and thenk selling it to
Favre, then Favre could not have acquired the information by imCproper means. In
other words, the jury’s finding that Precision did not misappropriate anything —
meaning it either owed no duty to Pohl or breached no dutyi to Pohl when it provided
Pohl's alleged information to Favre and Kassab — precludes liability against Kassab
for indirect misappropriation.
Even if liability against Kassab is not precluded by the jury’s finding of no
liability on Precision, there is no evidence thlat Kassab knew the information had been
acquired by improper means. See TEX M. CIV. PRAC. & REM. CODE § 134A.002(3)(A). The
term “improper means” “includes bribery, misrepresentation, breach or inducement
of a breach of a duty to maintiain secrecy, to limit use, or to prohibit discovery of a
trade secret, or espionage through electronic or other means.” Id. at 134A.002(2). The
testimony was that Foavre purchased Precision, and that the principals of Precision
certified in purchalse documents that they owned the information at issue. Favre then
provided that iinformation to Kassab, after certifying to Kassab that the information
belonged to Precision and not to Pohl. Thus, there was no evidence that Kassab knew
or had reason to know that the information was a trade secret owned by Pohl as
opposed to information owned by Precision. Nor was there evidence to establish that
11 Verdict, Question 2(a)(3) and 2(b)(3).
12
the information was obtained by Favre or Precision through improper means. Nor
was there any evidence to establish that the contracts or any other information in a
client file is owned by anyone other than the client, if not owned by Precision.
III. Pohl’s claims are barred as a matter of law by limitkations
because they accrued, if at all, in the summer of 2e014 and
this suit was filed in 2018, more than three yearCs later.
“A person must bring suit for misappropriation of trade secrets not later than
three years after the misappropriation is discovered or by tihe exercise of reasonable
diligence should have been discovered.” TEX. CIV. PRAsC. & REM. CODE 16.010(a). “A
misappropriation of trade secrets that continues over time is a single cause of
action and the limitations period described by Subsection (a) begins running
without regard to whether the misaplpropriation is a single or continuing
act.” Id. at § 16.010(b) (emphasis addeMd). In other words, TUTSA “explicitly precludes
treating trade secret misappropriation as a continuing tort.” Gen. Universal Sys. v.
HAL Inc., 500 F.3d 444, 451 (5ith Cir. 2007).
“A cause of action for trade-secret misappropriation accrues when the trade
secret is actually usedo.” Sw. Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 721
(Tex. 2016). Pohl lalleged that Precision “stole physical copies of certain of the
information, sitole Pohl’s computers, and misappropriated electronic data to which
they had access through Precision’s work for Pohl” and then “secretly sold Pohl’s
stolen confidential information and property to Kassab and Montague.”12 The
evidence established that the alleged theft by Precision and its former owners,
12 Plaintiffs’ First Amended Petition, at ¶ 21.
13
Walker, Ladner and Seymore, occurred in June 2014 and Pohl knew that the files
and materials he claims are his trade secrets had been misappropriated on that date.
Precision and its former owners used the client-related information in the Mississippi
litigation to file claims against Pohl. See id. (“Use of the trade skecret means
commercial use by which the offending party seeks to profit froCm the use of the
secret.”). That alleged act of misappropriation, which occurred in June 2014, is when
the cause of action accrued for purposes of the statute of l
imiitations. TEX. CIV. PRAC.
& REM. CODE 16.010(b); Sw. Energy, 491 S.W.3d at 72
1.
Even if the cause of action had not accrued in 2014, it unquestionably accrued
when Precision’s former owners profited from the alleged trade secret information by
selling Precision and its files, including thel alleged trade secret information, to Favre
in May 2015. See Sw. Energy, 491 MS.W.3d at 722 (defining “use” to mean “any
exploitation of the trade secret that is likely to result in injury to the trade secret
owner or enrichment to the [nion-trade secret owner]”) (emphasis added). Thus, Pohl
was required to file his cla
ims against Kassab before May 2018, at the latest. See TEX.
CIV. PRAC. & REM. COoDE 16.010(a).
Although Plohl consulted with an attorney about pursuing claims against
Kassab in Junie 2017,13 Pohl did not file this lawsuit until August 2018, alleging
Kassab, Favre and Precision “engaged in a scheme pursuant to which they illegally
obtained, maintained, and used trade secrets and other confidential information and
13 See Plaintiffs’ Trial Exhibit 124 at November 13, 2017 Invoice.
14
property belonging to Pohl.”14 This was more than three years after Precision’s
owners sold Pohl’s purported trade secrets to Favre in May 2015.
Pohl alleges that his claim against Kassab did not accrue until November 2016,
when Favre entered into an expert retainer agreement with Kassabk which Pohl
characterizes as an agreement to purchase the purported tradeC secrets. But the
transfer or use of already-misappropriated trade secrets by a purported co-
conspirator does not re-start the limitations clock. See TEDXi. CIV. PRAC. & REM. CODE
16.010(a); Agar Corp., Inc. v. Electro Circuits Int'l, LLC, 580 S.W.3d 136, 145 (Tex.
2019) (rejecting the “last-overt-act accrual rule” and concluding that conspiracy claim
for misappropriation of trade secrets accrues against all co-conspirators “when the
underlying tort accrues.”) (citing with applroval Harang v. Aetna Life Ins. Co., 400
S.W.2d 810, 813 (Tex. Civ. App.—MHouston 1966, writ ref'd n.r.e.) (concluding
limitations runs from when the injury occurs and therefore conspiracy claim against
the late-added co-conspiratoris was time-barred)). In other words, “[a] conspiracy
claim based on an earlier underlying tort does not re-accrue when the co-conspirators
agree to commit a secoond tort or make another overt act.” Agar Corp., 580 S.W.3d at
145. Accordingly, Plohl’s claims against Kassab are barred by limitations. See id.
IV. Piohl’s claims are barred by the unlawful acts doctrine
obecause Pohl’s acts are inexorably intertwined with his
crimes.
The unlawful acts doctrine bars a plaintiff from recovery if, at the time of
injury, he was engaged in an unlawful act that was inextricably intertwined with the
14 Plaintiffs’ Original Petition, ¶ 2
15
claim and the alleged damages would not have occurred but for the illegal act. Dugger
v. Arredondo, 408 S.W.3d 825, 827-28 (Tex. 2013). Although Dugger concluded that
the unlawful acts doctrine has been preempted by the statutory proportionate
responsibility scheme in “personal injury and wrongful death cases,” ikd. at 833, the
doctrine remains viable in all other types of cases, including claimCs against lawyers.
For instance, “a plaintiff [is] precluded from recovering damages in the legal
malpractice context due to the plaintiff's underlying criminail conduct.” Id. (collecting
cases). In those cases, “a client's criminal conduct, as a matter of law, was the sole
proximate or producing cause of the client's conviction, and . . . . the client could not
bring a legal malpractice claim unless she had been exonerated from the criminal
conviction.” Id. (citing Peeler v. Hughes &l Luce, 909 S.W.2d 494 (Tex. 1995)). The
Court reasoned, “[b]ecause the clientM's conduct, and not the attorney's, is the sole
cause of any injury resulting from conviction, the plaintiff cannot satisfy the
causation element of a legal mialpractice claim absent exoneration.” Id.
The same reasoning applies here, where Pohl’s wrongful conduct is the sole
cause of his purportedo injuries. Question 3 asked whether “the wrongful conduct of
Pohl, if any, contrlibute to the injury, if any, found by the jury,” to which the jury
answered “yesi.” Because the jury concluded that Pohl’s wrongful conduct (illegal
barratry and unauthorized practice of law) “contributed to” Pohl’s injury (attorney’s
fees incurred defending the barratry litigation and grievances), Pohl cannot recover
anything from Kassab. See Dugger, 408 S.W.3d at 839 (“where it is shown that, at the
time of the injury, the plaintiff was engaged in the denounced or illegal act, the rule
16
is, if the illegal act contributed to the injury he can not recover”); Truyen Luong
v. McAllister, No. 01-17-00198-CV, 2018 WL 3651103, at *4 (Tex. App.—Houston [1st
Dist.] Aug. 2, 2018, pet. denied) (barring claims arising out of solicitation of BP clients
and unlawful fee-sharing arrangements); Denson v. Dallas Cnty. Credkit Union, 262
S.W.3d 846, 855 (Tex. App.—Dallas 2008, no pet.) (unlawful acCts doctrine barred
claims arising from illegal sale of automobiles); Sharpe v. Turley, 191 S.W.3d 362
(Tex. App.—Dallas 2006, pet. denied) (precluding plaintiiff from recovering from
attorney because plaintiff's conduct forming the basis of the underlying civil fraud
claim was unlawful); Farha v. Elam, 385 S.W.2d 692, 695 (Tex. Civ. App.—Fort
Worth 1964, writ ref’d n.r.e.) (denying recovery for claimant who practiced
architecture without a license and then suled his partner in the architectural firm).
Since the jury found that Pohl’s wrongMful conduct contributed to his injury, he cannot
recover.
V. Pohl’s claims arie barred because Kassab had the privilege
to use the pufrported trade secrets – the client-related
information – to disclose to those clients that Pohl had
committed unlawful activities.
The jury’s finding that Pohl engaged in wrongful conduct contributing to his
injury also suppiorts Kassab’s claims of privilege, which is found in the Texas Rules
of Evidenceo, the Defense of Trade Secrets Act, and the common-law.
The Texas rules of evidence provide that Kassab has a privilege to reveal even
trade secrets if “nondisclosure will tend to conceal fraud or otherwise work injustice.”
TEX. R. EVID. 507(a). Even if client-related information could be considered Pohl’s
trade secrets (and it cannot), the evidence established that Kassab used that
17
information to make disclosure to the clients, to the Texas courts through the
barratry litigation, and to the State Bar of Texas through the grievances, about Pohl’s
ongoing illegal barratry. Nondisclosure of Pohl’s illegal activity not only would have
worked an injustice to the clients, but also would have violated Kassab’ks professional
obligations to the public. See TEX. DISC. R. PROF’L COND. 8.03(a) C(“a lawyer having
knowledge that another lawyer has committed a violation of applicable rules of
professional conduct … shall inform the appropriate discipliinary authority.”).
Under the Defense of Trade Secrets Act, Kassab cannot be held civilly liable
under TUTSA for “the disclosure of a trade secret that is made (i) in confidence to a
Federal, State, or local government official, either directly or indirectly, or to an
attorney; and (ii) solely for the purpose of lreporting or investigating a suspected
violation of law; or is made in a comMplaint or other document filed in a lawsuit or
other proceeding, if such filing is made under seal.” 18 U.S.C. § 1833(b)(1)(A)-(B)
(emphasis added). i
Moreover, “trade secret law permits disclosures relevant to public health or
safety, commission ofo crime or tort, or other matters of substantial public concern.”
Bartnicki v. Vop a pler, 532 U.S. 514, 539 (2001); RESTATEMENT (THIRD) OF UNFAIR
COMPETITION
§i 40, cmt. c (1995) (“A privilege is likely to be recognized, for example,
in connection with the disclosure of information that is relevant to public health or
safety, or to the commission of a crime or tort, or to other matters of substantial public
concern.”); RESTATEMENT OF THE LAW, TORTS § 757, cmt. d (“A privilege to disclose
may also be given by the law, independently of the other's consent, in order to promote
18
some public interest.”); Alderson v. United States, 718 F. Supp. 2d 1186, 1200 (C.D.
Cal. 2010), aff'd, 686 F.3d 791 (9th Cir. 2012) (“[T]here simply cannot be any trade
secret about ongoing illegality.”); Sys. Operations, Inc. v. Sci. Games Dev. Corp., 425
F. Supp. 130, 136 (D.N.J. 1977) (“disclosure of trade secret informationk may itself be
privileged.”). C
Here, the evidence established that Kassab used the purported trade secret
information – the client’s identities and contact informiation – to report Pohl’s
misconduct to the State Bar of Texas and to inform those very individuals that Pohl
may have committed unlawful barratry. Kassab’s disclosure of the information to
Pohl’s former clients, the courts, and the State Bar falls within these privilege
doctrines. The jury’s finding that Pohl enlgaged in wrongful conduct demonstrates
that these doctrines should be appliedM to bar Pohl’s claims against Kassab.
VI. Pohl’s claims or damages are barred as a matter of law to
the extent they aere predicated on Kassab’s participation
in the attorneyi disciplinary system for which Kassab has
absolute and ufnqualified immunity.
Rule 17.09 of the Texas Rules of Disciplinary Procedure provides immunity to
persons filing grievance procedures: “No lawsuit may be instituted against any
Complainant or iwitness predicated upon the filing of a Grievance or participation in
the attorneoy disciplinary and disability system . . . . The immunity is absolute and
unqualified and extends to all actions at law or in equity.” TEX. R. DISC. P. 17.09
(emphasis added). Even “allegations of wrongdoing . . . in connection with [the]
prosecution of disciplinary actions” are absolutely immune, so long as they are
“predicated upon” participation in the attorney disciplinary system. Crampton v.
19
Farris, 596 S.W.3d 267, 274-75 (Tex. App.—Houston [1st Dist.] 2019, no pet.).
Pohl’s claims against Kassab are “predicated” upon Kassab’s filing of
grievances against Pohl or participation in the attorney disciplinary system. Pohl
alleged that Kassab used the attorney-client contracts and the list idenktifying Pohl’s
potential, actual and rejected clients to solicit them to file claiCms and grievance
“complaints” against Pohl.15 Pohl testified that Kassab used the purported trade
secret information to initiate grievances against Pohl, aind he asked the jury to
compensate him for the attorney’s fees he incurred defending against those
grievances.16 The jury found that the attorney’s fees incurred by Pohl in the grievance
proceedings were the “proximate cause” the alleged misappropriation.17 Because
Pohl’s lawsuit is “predicated” upon Kassab’ls participation in the attorney disciplinary
system, Kassab has “absolute and unqMualified” immunity that “extends to all actions
at law or in equity.” TEX. R. DISC. P. 17.09; Crampton, 596 S.W.3d at 274-75
(“immunity likewise extendsi to all actions.”). Thus, Kassab has absolute and
unqualified immunity.
VII. Pohl’s colaims are barred by the judicial proceedings
privilege because they arise out of communications that
Kasslab made to prospective clients (solicitation letters)
andi actual judicial proceedings (the barratry litigation
aind grievance process).
“The judicial-proceedings privilege is an absolute privilege that covers any
15 Plaintiffs’ First Amended Petition, at ¶¶ 29, 32.
16 Verdict, at Question 7(1)(e), (f).
17 Verdict, at Question 7(1)(e), (f).
20
statement made by the judge, jurors, counsel, parties or witnesses, and attaches to
all aspects of the proceedings, including statements made in open court, pre-trial
hearings, depositions, affidavits and any of the pleadings or other papers in the case.”
Landry's, Inc. v. Animal Legal Def. Fund, 631 S.W.3d 40, 46 (Tex. 20k21) (internal
quotations omitted). It attaches even to “communications preliminCary to a proposed
judicial proceeding” if “the communication has some relation to a proceeding that is
actually contemplated in good faith and under serious consiideration by the witness
or a possible party to the proceeding.” Id. at 48-49. “Even in the pre-suit context,
… the privilege protects communications that are themselves preparatory
to the lawsuit.” Id. (emphasis added). The privilege protects all communications
that are “necessary to set the judicial mlachinery in motion.” Id. at 50 (quoting
RESTATEMENT (SECOND) OF TORTS § 5M86 cmt. a) (emphasis added).
“Although most cases addressing the judicial communication privilege involve
claims of libel or slander, Texais courts have consistently applied the privilege
to claims arising out of communications made in the course of judicial
proceedings, regardoless of the label placed on the claim.” Laub v. Pesikoff, 979
S.W.2d 686, 690 (Tlex. App. – Houston [1st Dist.] 1998, pet. denied) (emphasis added).
Thus, the priviilege applies to any cause of action “when the essence of a claim is
damages that flow from communications made in the course of a judicial
proceeding.” Id. at 691 (emphasis added).
Here, Pohl’s alleged damages indisputably “flow from” communications that
Kassab made in the barratry litigation and grievance proceedings. Pohl sued Kassab
21
alleging he “solicited … clients/prospective clients to act as plaintiffs … to bring cases
against Pohl for alleged barratry and other claims.”18 Pohl testified to these
allegations, stating Kassab used the purported trade secret information to acquire
clients and file barratry proceedings against Pohl, which damaged his kreputation in
the community and “ruined him.”19 Pohl asked the jury to award hiCm “attorney’s fees,
expenses, and costs that Pohl has incurred in connection with the … lawsuits,
appeals, and grievances that Kassab filed,” and the jury didi.20
Because Pohl’s alleged damages “flow from” communications that Kassab
made in the barratry litigation and grievance proceedings, Pohl’s claims against
Kassab are barred regardless of their label. See Laub, 979 S.W.2d at 690 (holding
privilege applied to claims for “intentionall interference, civil conspiracy, intentional
infliction of emotional distress, negligMence, and constitutional violations”); Tex. Mut.
Ins. Co. v. Ray Ferguson Interests, Inc., No. 01-02-00807-CV, 2006 Tex. App. LEXIS
2001, at *27-28 (Tex. App.—Hoiuston [1st Dist.] Mar. 16, 2006, pet. denied) (mem. op.)
(privilege applied to statutory claim under Texas Insurance Code because “although
[plaintiff] did not pleoad defamation, its theory of damages was that its clients,
creditors, and bonlding companies abandoned it, in part, because of the [insurer's]
allegations andi assertions . . . made in the course of this judicial proceeding”).
18 Plaintiff’s First Amended Petition, at ¶ 29.
19 Pohl testified that after the barratry proceedings were filed, he was considered a “tar baby” and
nobody wanted to do business with him.
20 Verdict, at Question 7.
22
VIII. Pohl’s claims are barred by attorney immunity because an
attorney does not have a right of recovery against another
attorney arising from conduct the second attorney
engaged in as part of the discharge of his duties as a
lawyer.
Under the doctrine of attorney immunity, “an attorney does not hkave a right of
recovery, under any cause of action, against another attorney arCising from conduct
the second attorney engaged in as part of the discharge of his duties in representing
a party.” Bradt v. West, 892 S.W.2d 56, 72 (Tex. App.—Houiston [1st Dist.] 1992, writ
denied) (emphasis added). “[A]n attorney is immune from liability to nonclients for
conduct within the scope of his representation of his clients.” Youngkin v. Hines, 546
S.W.3d 675, 681 (Tex. 2018). The inquiry “focuses on the kind of conduct at issue
rather than the alleged wrongfulness of slaid conduct.” Id. “That is, a lawyer is no
more susceptible to liability for a giMven action merely because it is alleged to be
fraudulent or otherwise wrongful.” Id. “Merely labeling an attorney’s conduct
‘fraudulent’ does not and shoulid not remove it from the scope of client representation
or render it ‘foreign to the duties of an attorney.’” Id. at 483. Even “criminal conduct
is not categorically excoepted from the protections of attorney civil immunity when the
conduct alleged isl connected with representing a client in litigation.” Bethel v.
Quilling, Selanider, Lownds, Winslett & Moser, P.C., 595 S.W.3d 651, 657 (Tex. 2020);
Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 483 (Tex. 2015) (“an attorney’s conduct
may be wrongful but still fall within the scope of client representation”).
Kassab’s conduct that forms the basis of Pohl’s claims falls squarely within the
confines of attorney immunity, regardless of whether it is alleged to have violated the
23
TUTSA, because that statute does not expressly repudiate the defense. Taylor v.
Tolbert, 644 S.W.3d 637, 642 (Tex. 2022) (attorney immunity applied to statutory
claim because the statute did “not expressly, or by necessary implication, abrogate
the immunity defense”). Pohl sued Kassab because he allegedly used thke purportedly
“stolen and misappropriated confidential information … to contacCt and solicit Pohl’s
clients/prospective clients”21 in order to “bring cases against Pohl for alleged barratry
and other claims.”22 The acquisition of clients and filing of liawsuits are actions taken
“to facilitate the rendition of legal services” that fall within attorney immunity.
Youngkin, 546 S.W.3d at 682 (recognizing that “the complained-of actions included
filing lawsuits and pleadings” fell within the doctrine of attorney immunity); Clayton
v. Oldcastle Materials Tex., Inc., No. 09-18-l00063-CV, 2019 Tex. App. LEXIS 1112, at
*12, 15 (Tex. App.—Beaumont Feb. 1M4, 2019, no pet.) (mem. op.) (applying attorney
immunity to attorney “selling his legal services to the City as a potential client” and
subsequent conduct which “ocicurred in the course of his undertaking to represent”
those clients).
The fact that Koassab is alleged to have committed the misconduct before any
litigation is immalterial because “attorney immunity applies to claims based on
conduct outsidie the litigation context[.]” Haynes & Boone, LLP v. NFTD, LLC, 631
S.W.3d 65, 78-79, 81 (Tex. 2021); Cantey Hanger, 467 S.W.3d at 485 (concluding that
attorney was immune from conduct that occurred after litigation had ended). In other
21 Plaintiffs’ First Amended Petition, ¶ 26.
22 Plaintiffs’ First Amended Petition, ¶ 29.
24
words, Pohl’s characterization of Kassab’s activities as part of a business transaction
that occurred before litigation does not negate attorney immunity because Kassab
engaged in the conduct as part of his ultimate provision of legal services to his clients.
See Haynes & Boone, 631 S.W.3d at 78-79, 81 (applying attorney immunikty to lawyer’s
conduct committed as part of business transaction). In an appeaCl arising from this
case the court of appeals opined that all of Kassab’s conduct that Pohl complains
about “arose out of a commercial transaction involiving the type of legal
services Kassab provides.” Kassab v. Pohl, 612 S.W.3d 571, 578 (Tex. App.—
Houston [1st Dist.] 2020, pet. denied) (emphasis added).
Question 6, the attorney immunity question, asked “Did Kassab acquire or use
Pohl’s trade secret while in an attorney clielnt relationship and attempting to provide
legal services in that relationship iMnvolving the unique office professional skill,
training and authority of an attorney?”23 Although the jury answered “no” to this
question, there is no evidence ito support that finding.
The evidence demonstrated that on November 11, 2016, Kassab entered into a
joint venture agreemeont with other lawyers to investigate and pursue barratry claims
against Pohl. The luncontroverted evidence was that Kassab obtained his first client
at least by Febiruary 2017 and that Kassab continued to use the alleged trade secret
information after this date to acquire more plaintiffs to bring four barratry lawsuits
against Pohl on behalf of more than 400 of Pohl’s former and potential clients. If the
attorney-client contracts and identities of Pohl’s clients are Pohl’s trade secrets, the
23 Verdict, Question 6. As discussed in Kassab’s Motion for New Trial, the Court erred by including
the language “while in an attorney client relationship” in this question.
25
evidence established that Kassab “used” that information while in an attorney-client
relationship with his clients because that information was “used” to file and pursue
the barratry claims. The evidence conclusively proved that Kassab used client contact
information to send notification letters to victims of Pohl’s barratry schkeme through
the middle of 2017, while he was in attorney-client relationshipsC with hundreds of
clients beginning in February 2017. Therefore, there is no evidence to support the
jury’s finding that Kassab did not use client-related informaition while in an attorney-
client relationship and the jury’s answer should be disregarded.
Accordingly, Pohl’s claims against Kassab are barred by attorney immunity.
See Taylor, 644 S.W.3d at 648 (attorney could not be held civilly liable for conduct
which was “criminal in nature” because it wlas committed while discharging duties to
client); Highland Capital Mgmt., LPM v. Looper Reed & McGraw, P.C., No. 05-15-
00055-CV, 2016 Tex. App. LEXIS 442, at *10-11 (Tex. App.—Dallas Jan. 14, 2016,
pet. denied) (mem. op.) (applyiing attorney immunity to claim that attorney engaged
in “malicious conduct with respect to its illegal acquisition, retention, use, and
threatened disclosureo of [the plaintiff’s] proprietary and confidential information”
that “it knew to ble stolen and proprietary in furtherance of its scheme to extort,
slander, and diisparage [the plaintiff]” and “refusing to return and cease use of [the
plaintiff’s] proprietary information”).
26
IX. Pohl’s claims fail as a matter of law because his purported
damages are unrecoverable as a matter of law or because
Pohl presented no evidence of actual loss.
Pohl’s has no recoverable damages against Kassab because TUTSA does not
allow attorney’s fees from other litigation as “actual loss” damagkes, and Pohl
presented no evidence of fair market value or any other actual lossC at trial.
A. Pohl cannot recover attorney’s fees from other
litigation as actual damages as a mattter of law.
TUTSA provides recovery for “actual loss[es] caused by misappropriation,”
TEX. CIV. PRAC. & REM. CODE § 134A.004, but thee act does not define that term.
Although no Texas case has provided a definitioun, the act requires this provision to
“be applied and construed to effectuate its general purpose to make uniform the law
with respect to the subject of this chaapter among states enacting it.” See id. §
134A.008. Thus, the Court must look to and be guided by decisions from other states
that have adopted the Uniform Terade Secrets Act. See Morgan v. Clements Fluids S.
Tex., Ltd., 589 S.W.3d 177, 19f1 n.4 (Tex. App.—Tyler 2018, no pet.) (looking to Florida
law when interpreting TUTSA because “[t]he Florida Uniform Trade Secrets Act is
very similar to the TUTSA”).
Courts in iother jurisdictions “have made clear that ‘actual loss’ means ‘loss of
profits, losto customers or lost market share.’” K3 Enter., Inc. v. Sasowski, No. 20-
24441-CIV-CAN, 2022 U.S. Dist. LEXIS 234206, at *10 (S.D. Fla. 2022) (concluding
reputational damage was not an “actual loss” under Florida’s Uniform Trade Secrets
Act) (citing Fin. Info. Techs., LLC v. iControl Sys., USA, LLC, 21 F.4th 1267, 1276
(11th Cir. 2021) (understanding “actual loss” in terms of lost profits); Selectica, Inc. v.
27
Novatus, Inc., No. 6:13-cv-1708-Orl-40TBS, 2015 U.S. Dist. LEXIS 191940, at *9
(M.D. Fla. 2015) (“‘Actual loss’ has been defined as ‘loss of profits, lost customers or
lost market share.’”); Saforo & Assocs., Inc. v. Porocel Corp., 991 S.W.2d 117, 124
(Ark. 1999) (“actual loss” means “the plaintiff’s lost profits or the defekndant’s gain,
whichever affords the greater recovery.”). C
In a case construing the Idaho Uniform Trade Secrets Act, the Idaho Supreme
Court held that “actual loss” means “lost profits, lost custoimers, lost market share,
and similar losses,” but specifically held that “it would be an anomaly for us to allow
attorney fees to be recovered in a case like this as part of damages.” GME, Inc. v.
Carter, 917 P.2d 754, 757 (Idaho 1996); see also Twin Falls Staffing, LLC v. Visser
(In re Visser), No. 1:13-cv-00408-BLW, 201l4 U.S. Dist. LEXIS 56705, at *9 (D. Idaho
2014) (losses from misappropriation oMf trade secrets “logically include lost profits, but
not attorneys’ fees.”).
The conclusion that attiorney’s fees from other litigation are not actual losses
recoverable under TUTSA is consistent with Texas trade secret law before the statute
was enacted. The Texoas Supreme Court defined recoverable losses for a trade secret
claim as “the valuel of the plaintiff’s lost profits, the defendant’s actual profits from
the use of the isecret, the value a reasonably prudent investor would have paid for
the trade secret, the development costs the defendant avoided by the
misappropriation, and a reasonable royalty.” Sw. Energy Prod. Co. v. Berry-
Helfand, 491 S.W.3d 699, 710–11 (Tex. 2016) (emphasis added). No Texas court has
ever allowed attorneys’ fees in other cases to be recovered as actual damages in a
28
trade secret claim. In fact, at least one has concluded the opposite while dismissing a
TUTSA claim. See Lacore Enters., LLC v. Angles, No. 05-21-00798-CV, 2023 Tex. App.
LEXIS 1926, at *32-33 (Tex. App.—Dallas Mar. 23, 2023, no pet. h.) (mem. op.)
(rejecting contention that “disclosure of [party’s] confidential informaktion” caused
“the attorney’s fees that have been incurred [which] is evidence of Cdamages” because
“attorney’s fees incurred in a lawsuit are not actual damages.”).
This conclusion is further reinforced by Texas law iregarding attorney’s fees
incurred in previous litigation. “[F]ees expended in prior litigation generally are not
recoverable as damages; fees are recoverable only when an agreement between the
parties so provides.” Martin-Simon v. Womack, 68 S.W.3d 793, 797 (Tex. App.—
Houston [14th Dist.] 2001, pet. denied); see lalso Tana Oil & Gas Corp. v. McCall, 104
S.W.3d 80, 81-82 (Tex. 2003) (attorneMy’s fees for defending a different claim are not
recoverable as damages as a matter of law); O’Neal v. Dale, No. 02-20-00173-CV, 2021
Tex. App. LEXIS 466, at *28 i(Tex. App.—Fort Worth Jan. 21, 2021, no pet.) (mem.
op.) (“a party’s claim that he incurred attorney’s fees to defend against [another] claim
is not a viable damageo claim.”); Tex. Mut. Ins. Co. v. Ray Ferguson Interests, Inc., No.
01-02-00807-CV, 2l006 Tex. App. LEXIS 2001, at *23-24 (Tex. App.—Houston [1st
Dist.] Mar. 16i, 2006, pet. denied) (mem. op.) (“financial loss due to time spent by
[party] on litigation matters” in another case was not, as a matter of law, recoverable).
And the law is clear that “[a] party relying on assertions of non-recoverable damages
alone, such as attorney’s fees and expenses sustained in defending a lawsuit . . . has
presented a legal barrier to any recovery.” Woodhaven Partners Ltd. v. Shamoun &
29
Norman, L.L.P., 422 S.W.3d 821, 837 (Tex. App.—Dallas 2014, no pet.).
Pohl has argued that he is entitled to recover attorney’s fees based on an
exception to the general rule based on the “tort of another,” which provides that “[o]ne
who through the tort of another has been required to act in the proktection of his
interests by bringing or defending an action against a third perCson is entitled to
recover reasonable compensation for loss of time, attorney fees and other
expenditures thereby suffered or incurred in the earlier iaction.” Naschke v. Gulf
Coast Conference, 187 S.W.3d 653, 655 (Tex. App.—Houston [14th Dist.] 2006, pet.
denied) (quoting RESTATEMENT (SECOND) OF TORTS § 914 (1979)). But that exception
has never been embraced by the Texas Supreme Court24 and has been flatly rejected
by the Fourteenth Court of Appeals.25 See lNaschke, 187 S.W.3d at 655 (“Because we
are bound to follow the existing lawsM of the State, we are not at liberty to adopt a
theory of recovery that has not been enacted by the Legislature or adopted by the
Texas Supreme Court.”). i
The First Court of Appeals has not specifically held whether the “tort of
another” exception iso viable. But it has stated that because this exception is an
24 See Akin, Gum f ip, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d 106, 119
(Tex. 2009) (“o[W]e need not and do not address whether the exception set out in section 914(2) of the
Second Restnatement should be adopted as Texas law.”).
25 Other intermediate courts of appeals have likewise refused to adopt the tort of another doctrine.
Riner v. Neumann, 353 S.W.3d 312, 323 (Tex. App.—Dallas 2011, no pet.) (“Given the supreme court’s
faithful adherence to the American Rule, and its strong statement in Tony Gullo that trial courts lack
the inherent authority to award fees contrary to the Rule, we decline to adopt a new equitable
exception to the Rule.”); TOKA Gen. Contractors v. Wm. Rigg Co., No. 04-12-00474-CV, 2014 Tex. App.
LEXIS 3776, at *20 (Tex. App.—San Antonio Apr. 9, 2014, pet. denied) (mem. op.) (collecting cases);
Per-Se Techs., Inc. v. Sybase, Inc., No. 01-03-01293-CV, 2005 Tex. App. LEXIS 5096, at *24 (Tex.
App.—Houston [1st Dist.] June 30, 2005, no pet.) (mem. op.) (collecting cases).
30
equitable doctrine it can only apply when the plaintiff is “wholly innocent” of any
wrongdoing. See Per-Se Techs., Inc. v. Sybase, Inc., No. 01-03-01293-CV, 2005 Tex.
App. LEXIS 5096, at *24 (Tex. App.—Houston [1st Dist.] June 30, 2005, no pet.) (mem.
op.); see also Brannan Paving GP, LLC v. Pavement Markings, Inc., 44k6 S.W.3d 14,
27 (Tex. App.—Corpus Christi 2013, pet. denied) (referring to thCe “tort of another
exception” as an “equitable exception” to the general rule).
Here, the jury concluded in response to Question 3 thiat the “wrongful conduct
of Pohl . . . contribute[d] to the injury.”26 Pohl argues that in Question 4, the jury
failed to assign any percentage of responsibility to Pohl. But the issue is not related
to Pohl’s proportionate responsibility. Rather, the point is simply that one without
clean hands cannot obtain an equitable relmedy, and one found to have engaged in
“wrongful conduct” does not have cleaMn hands. See Frazier v. Havens, 102 S.W.3d 406,
414 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (“one who seeks an equitable
remedy must do equity and coime to court with clean hands.”).
Pohl cannot claim the equitable tort of another exception even if it is viable
under Texas law. Seeo Per-Se Techs., 2005 Tex. App. LEXIS 5096, at *24; see also
Pacesetter Pools, Ilnc. v. Pierce Homes, Inc., 86 S.W.3d 827, 834 (Tex. App.—Austin
2002, no pet.) i(“[B]ecause the jury found that Allcox’s damages were caused by the
negligent conduct of both Pierce Homes and Pacesetter, equitable principles do not
allow Pierce Homes to recover its previously incurred attorney’s fees as damages.”);
Dayton Hudson Corp. v. Eldridge, 742 S.W.2d 482, 488 (Tex. App.—Dallas 1987, writ
26 Verdict, at Question 3.
31
denied) (“[I]n the present case, Eldridge is not an innocent party forced to incur costs
and expenses, including attorneys’ fees, to be treated as the legal consequences of
some original wrongful act of another and permitted to be recovered as damages.”).
B. Pohl presented no evidence to support his kother
elements of damage. e
Pohl also sought damages in the form of the “price that a willing buyer and a
willing seller would have agreed on, at the time of the misatppropriation, as a fair
price for Kassab’s [alleged] use of the trade secret(s)” for which the jury awarded
$250,000.27 But Pohl did not present any testimony eabout the “market value” of the
information at issue. See City of Harlingen v. Eustate of Sharboneau, 48 SW.3d 177,
182 (Tex. 2001) (defining “market value” to mean “the price the property will bring
when offered for sale by one who desiresa to sell, but is not obliged to sell, and is bought
by one who desires to buy, but is under no necessity of buying.”). Pohl did testify that
the information about his clientse had intrinsic value to him because he could contact
them as former clients. Butf intrinsic value is not the same as market value. See
Accurate Precision Plating, LLC v. Guerrero, No. 01-14-00706-CV, 2015 Tex. App.
LEXIS 12034, at *7 (Tex. App.—Houston [1st Dist.] Nov. 24, 2015, pet. denied) (mem.
op.). As the purpiorted owner of the property, Pohl could only testify (if he had been
properly deosignated)28 about “market value, not intrinsic value or some speculative
value of the property.” Id. There was no evidence to support the jury’s finding on the
27 Verdict, Question 7(2).
28 As explained in Kassab’s Motion for New Trial, Pohl was erroneously allowed to testify on this issue
over Kassab’s objection.
32
market value of the purported trade secrets.
Presumably, the jury extrapolated the $250,000 figure from evidence that
Kassab and Montague paid Favre a retainer to act as an expert in the barratry
litigation. Even if the jury could reasonably conclude that the $250,000k figure was a
“purchase price” for Pohl’s alleged trade secrets, that would be conCsidered an “actual
value” and not “market value,” which was the theory submitted to the jury. Pike v.
Tex. EMC Mgmt., LLC, 610 S.W.3d 763, 784 n.27 (Tex. 2020i) (distinguishing between
“market value” and “actual value” and noting that “evidence of purchase price alone
cannot establish market value” and approving cases rendering take-nothing
judgments “where purchase price was only evidence of damages presented”).
“[P]urchase price is merely a starting poinlt for calculating actual value,” not market
value. See id. at 784. Further, “one saMle [is] not sufficient to fix a fair market value.”
InterFirst Bank Dall., N.A. v. Risser, 739 S.W.2d 882, 891 (Tex. App.—Texarkana
1987, no writ); Mo., K. & T. Ri. Co. v. Moss, 135 S.W. 626, 627 (Tex. Civ. App. 1911,
no writ) (“Evidence of a single sale is admissible, but not alone sufficient to establish
market value.”). o
Finally, thelre was no evidence to support the jury’s award of $200,000 for the
“value of the dievelopment costs that Kassab avoided by [allegedly] misappropriating
Pohl’s trade secret(s).”29 There was no testimony by Pohl about Kassab’s development
costs. Kassab testified that he did not know how much in costs he avoided, if any, by
using information provided by Precision. And no other witness testified about
29 Verdict, Question 7(3).
33
development costs. Although damages in trade-secret cases can be flexible and
imaginative, damages “cannot be based on sheer speculation.” Sw. Energy, 491
S.W.3d at 712. Because Pohl presented no evidence for the jury to make a just and
reasonable inference regarding development costs saved by Kassab, thkat award was
improper. C
X. Pohl’s claims fail for lack of causation because it was
Pohl’s barratry that was the sole cause of htis damages, not
anything that Kassab did. i
Pohl failed to present legally sufficient evidence of proximate cause.
“Proximate cause has two elements: cause in fact and foreseeabilty.” Akin, Gump,
Strauss, Hauer & Feld, L.L.P. v. Nat'l Dev. & Research Corp., 299 S.W.3d 106, 122
(Tex. 2009). “Causation must be proved, anld conjecture, guess, or speculation will not
suffice as that proof.” Id. In Akin, GMump, the Court found insufficient evidence to
support the jury’s award of appellate attorney’s fees as damages to the client in a
legal malpractice claim becausie there was no evidence that if the client had obtained
a favorable judgment, the opposing party in the underlying case would not have
appealed and caused tohose fees to be incurred. Id. at 123.
Likewise, Plohl presented no evidence that Pohl would not have been sued for
barratry and iincurred the fees that he did if Kassab had not obtained the client
information from Favre. None of the damages claimed by Pohl were caused by
Kassab’s conduct, but instead occurred because of Pohl’s own misconduct. If Pohl had
not committed barratry, he would not have been sued or grieved by his former clients
for committing barratry. In other words, Pohl’s criminal conduct was the sole
34
proximate cause of his own damages, see Peeler, 909 S.W.2d at 496-97, or by Pohl’s
former clients’ decision to bring the barratry proceedings were a superseding or new
and intervening causes of Pohl’s damages. See Stanfield, 494 S.W.3d at 102-03. There
is no evidence to support the jury’s conclusion that Kassab’s condkuct was the
proximate cause of Pohl’s damages. See Akin, Gump, 299 S.W.3d Cat 123; Saulsberry
v. Ross, 485 S.W.3d 35, 50 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (client’s
award of attorney’s fees as damages was insufficient wheni evidence suggested that
client “would have incurred legal fees” regardless of the lawyer’s actions).
Even if Kassab created a condition by notifying Pohl’s former and rejected
clients of Pohl’s barratry, the resulting harm – the attorney’s fees Pohl incurred
defending against those proceedings – wasl caused by Pohl, who committed barratry
in the first instance, and the clients, Mwho sued Pohl for committing that barratry. It
was not caused by Kassab, the lawyer merely representing those clients. See
Stanfield, 494 S.W.3d at 99 (eixplaining that the mere fact original tortious conduct
is a “but for” cause of intervening conduct does not make the first actor liable for the
conduct of the secondo). Accordingly, Pohl’s claims against Kassab fail as a matter of
law for lack of caulsation.
XI. Piohl’s conspiracy claim is pre-empted under TUTSA or
oChapter 33.
TUTSA provides that it “displaces conflicting tort, restitutionary, and other
law of this state providing civil remedies for misappropriation of a trade secret.” TEX.
CIV. PRAC. & REM. CODE §134A.007. In Reynolds v. Sanchez Oil & Gas Corp., No. 01-
18-00940-CV, 2023 Tex. App. LEXIS 8903 (Tex. App.—Houston [1st Dist.] Nov. 30,
35
2023, no pet. h.), the plaintiff sued for misappropriation of trade secrets and aiding
and abetting breach of fiduciary duty. Id. at *7-8. The court of appeals concluded that
the aiding and abetting claim was “primarily based on the individual appellants’
misappropriation of trade secrets” and “provide[ed] remedies for thke underlying
misconduct of misappropriation of trade secrets.” Id. at 47. “Under Cthe plain language
of TUTSA, these claims conflict with civil remedies for misappropriation of a trade
secret.” Id. at *47-48. Therefore, “TUTSA preempts these iclaims to the extent they
are based on appellants’ alleged misappropriation of trade secrets.” Id. at *48.
Pohl’s conspiracy claim, like the aiding and abetting claim in Reynolds, is
based entirely on Kassab’s alleged misappropriation of trade secrets. The conspiracy
question asked, “[r]egarding the conduct ylou found in answer to Question 2 [which
asked “[d]id any of the parties listed bMelow misappropriate Pohl’s trade secret?”], was
Kassab part of a conspiracy that damaged Pohl with any of those named below?”30
Because Pohl’s conspiracy claiim is “primarily based on” alleged misappropriation of
trade secrets, it is preempted. See Reynolds, 2023 Tex. App. LEXIS 3067, at *47-48;
VEST Safety Med. Serovs., LLC v. Arbor Env't, LLC, No. 4:20-CV-0812, 2022 U.S. Dist.
LEXIS 127285, at l*10 (S.D. Tex. 2022) (“the weight of authority from district courts
within the Fiifth Circuit … [demonstrate a] conspiracy claim is preempted by
TUTSA.”). Thus, the judgment should not include joint and several liability against
Kassab.
30 Verdict, Question 15.
36
XII. Exemplary damages are improper because one of the
predicate findings for exemplary damages was not
answered by the jury unanimously.
“Whether a jury's award of exemplary damages is supported by a unanimous
finding as to liability and the amount of exemplary damages is constkrued as a ‘no
evidence’ or ‘matter of law’ issue.” Redwine v. Peckinpaugh, 535 SC.W.3d 44, 50 (Tex.
App.—Tyler 2017, no pet.); Cullum v. White, 399 S.W.3d 173, 188 (Tex. App.—San
Antonio 2011, pet. denied) (whether plaintiff is entitledi to exemplary damages
because there was not a unanimous verdict is a “matter of law issue.”).
Question 19 was the only question in the jury charge that asked about
exemplary damages. The predicate instruction for Question 19 said, “Answer the
following question only if you unanimouslly answered ‘Yes’ to Question No. 17 or
Question No. 18. Otherwise, do not anMswer the following question.”31
The jury did not answer Question 18.
Some members of the ijury answered Question 17 “Yes,” finding that the
misappropriation of trade secrets was willful and malicious.32 But the certificate at
the end of the jury veordict makes it unmistakably clear that the answer to Question
17 was not unanilmous. First, in the general part of the jury certificate the jury
declined to chieck the box indicating that “Our verdict is unanimous,” but instead
checked the box indicating that only ten jurors agreed to every answer:
31 Verdict, Question 19.
32 Verdict, Question 17.
37
The additional certificate required the jury to indicate whether certaink liability and
damages questions were answered unanimously: l
In response to that instruction, the presiding juruor signed certificates indicating that
Questions 2 and 19 were unanimous. But thne presiding juror conspicuously did not
sign the certificate for Question 17: r i
Thus, the jury’s ansCwer to Question 17 was unmistakably not unanimous.
The jury’s failure to answer Question 17 unanimously precludes any award of
exemplary d
afmages by both rule and statute. See TEX. R. CIV. P. 292 (“A verdict may
be rendered awarding exemplary damages only if the jury was unanimous in finding
liability for and the amount of exemplary damages.”) (emphasis added); TEX. CIV.
PRAC. & REM. CODE § 41.003(d) (“Exemplary damages may be awarded only if the
jury was unanimous in regard to finding liability for and the amount of exemplary
38
damages.”) (emphasis added).
Texas cases have not hesitated to apply this principle articulated in both rule
and statute. See Cullum, 399 S.W.3d at 188 (“As a matter of law, a party cannot
recover exemplary damages without a unanimous verdict on the underlkying theory of
liability.”); Redwine, 535 S.W.3d at 52 (concluding “that the trCial court erred in
entering judgment awarding exemplary damages” when “[d]espite [the jury] having
answered the exemplary damages question, which was prediicated on its unanimously
having found that [the defendant] made multiple defamatory statements, the jury
stated in the charge that its verdict was not unanimous.”); DeAtley v. Rodriguez, 246
S.W.3d 848, 850 (Tex. App.—Dallas 2008, no pet.) (a non-unanimous verdict on
liability was insufficient as a matter of llaw to support an award of exemplary
damages). M
Because the predicate finding of malicious misappropriation was the only way
to get to exemplary damages, aind that question was not answered unanimously, the
judgment cannot include exemplary damages as a matter of law.
o CONCLUSION & PRAYER
For these relasons, Kassab asks the Court to grant this motion, disregard the
jury findings, iand enter a take nothing judgment in favor of Kassab or reduce the
judgment as set forth herein.
39
ALEXANDER DUBOSE JEFFERSON
/s/ Kevin Dubose
Kevin Dubose
kdubose@adjtlaw.com
Texas State Bar No. 0615050k0
1844 Harvard Street e
Houston, Texas 77008 C
Phone (713) 523-0667 
Facsimile (713) 522-4553
FOGLER, BRAR, Oi’NEIL & GRAY, LLP
/s/ Murray Fogler
Murray Foegler
mfogler@foglerbrar.com
Texas uState Bar No. 07207300
909 Fannin, Suite 1640
Houston, Texas 77002
(l713) 481-1010
a(713) 574-3224 (Fax)
THE KASSAB LAW FIRM
e /s/ David Eric Kassab
i Lance Christopher Kassab
f Texas State Bar No. 00794070
David Eric Kassab
Texas State Bar No. 24071351
o 1214 Elgin Street
Houston, Texas 77004
l Telephone: (713) 522-7400
i E-service: eserve@kassab.law
o ATTORNEYS FOR KASSAB DEFENDANTS
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this document has been
forwarded to all parties pursuant to the Texas Rules of Civil Procedure on this the
19th day of January, 2024.
/s/ David Eric Kassab
David Eric Kassab
40
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
David Kassab
Bar No. 24071351
david@kassab.law r
Envelope ID: 83597613
Filing Code Description: No Fee Documents
Filing Description: THE KASSAB DEFS MOTION FOR JUDGtMENT NOT
WITHSTANDING THE VERDICT AND TO DISREGARD JUiRY FINDINGS
Status as of 1/19/2024 3:37 PM CST s
Case Contacts 
Name BarNumber Email g TimestampSubmitted Status
Todd Taylor ttaylor@jandflaw.com 1/19/2024 3:31:14 PM SENT
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT
Harris Wells hwaells@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT
Todd Taylor ttaylor@jandflaw.com 1/19/2024 3:31:14 PM SENT
Scott M.Favre scott@favrepa.com 1/19/2024 3:31:14 PM SENT
Lawyer Wade c lawyerwade@hotmail.com 1/19/2024 3:31:14 PM SENT
Chris C.Pappas f cpappas@krcl.com 1/19/2024 3:31:14 PM SENT
Non-Party Witness Billy Shepherd  bshepherd@spcounsel.com 1/19/2024 3:31:14 PM SENT
Non-Party Dona Pohl DonaLyann@yahoo.com 1/19/2024 3:31:14 PM SENT
Non-Party Edgar Jaimes C edgarsroom@gmail.com 1/19/2024 3:31:14 PM SENT
Kevin Dubose a 6150500 kdubose@adjtlaw.com 1/19/2024 3:31:14 PM SENT
Marisa Barrera Cruz Hurd 24041157 mhurd@adjtlaw.com 1/19/2024 3:31:14 PM SENT
Lance Kassab o eserve@kassab.law 1/19/2024 3:31:14 PM SENT
Murray JFogleUr mfogler@foglerbrar.com 1/19/2024 3:31:14 PM SENT
Murray Fogler mfogler@fbfog.com 1/19/2024 3:31:14 PM SENT
Andrew Johnson ajohnson@thompsoncoe.com 1/19/2024 3:31:14 PM SENT
Benjamin Ritz britz@thompsoncoe.com 1/19/2024 3:31:14 PM SENT
Dale Jefferson 10607900 jefferson@mdjwlaw.com 1/19/2024 3:31:14 PM SENT
Raul Herman Suazo 24003021 suazo@mdjwlaw.com 1/19/2024 3:31:14 PM SENT
Kevin Graham Cain 24012371 cain@mdjwlaw.com 1/19/2024 3:31:14 PM SENT
D Kassab david@kassab.law 1/19/2024 3:31:14 PM SENT
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
David Kassab
Bar No. 24071351
david@kassab.law r
Envelope ID: 83597613
Filing Code Description: No Fee Documents
Filing Description: THE KASSAB DEFS MOTION FOR JUDGtMENT NOT
WITHSTANDING THE VERDICT AND TO DISREGARD JUiRY FINDINGS
Status as of 1/19/2024 3:37 PM CST s
Case Contacts 
D Kassab david@kassab.lagw 1/19/2024 3:31:14 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 1/19/2024 3:31:14 PM SENT
L Kassab lance@kassab.law 1/19/2024 3:31:14 PM SENT
Kelly Skelton reception@kassab.law 1/19/2024 3:31:14 PM SENT
Murray J. Fogler 7207300 mfaogler@foglerbrar.com 1/19/2024 3:31:14 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT
Thallia Malespin tmalespin@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT
Misty Davis c mdavis@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT
Harris Wells f hwells@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT
David Kassab  david@kassab.law 1/19/2024 3:31:14 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT"
66,2024-01-19,MNT,Kassab,Motion for New Trial,"Kassab Defendants' Motion for New Trial, filed in the alternative to the JNOV Motion, raising 22 grounds for new trial including: (1) newly discovered evidence of witness bribery/tampering (Walker 30% confession), (2-4) factual insufficiency on trade secret ownership and misappropriation, (5-6) jury charge errors on Q3 and proportionate responsibility, (7) limitations question error on Q5, (8) insufficiency on Q5 answer, (9-10) refusal to submit unlawful acts defense and immunity/privilege questions, (11) exclusion of barratry expert testimony, (12) Q6 attorney immunity question error, (13) insufficiency on Q6, (14) improper Q7(1) submission (attorney fees not TUTSA damages), (15) property owner rule error, (16) insufficiency on Q7(2)-(3), (17-18) insufficiency on willful/malicious and exemplary damages, (19) conspiracy preemption, (20) denial of responsible third party designations, (21) denial of abatement, (22) privilege/offensive use errors, and (23) dismissal of barratry counterclaims, plus insufficiency of attorney fees evidence","Post-judgment motion filed January 19, 2024, simultaneously with the JNOV Motion, within 30 days of the December 22, 2023 Final Judgment. Filed in the alternative — if Court does not grant JNOV, it should grant a new trial on any of 22 enumerated grounds.",POST-1,N/A,Phase 5,2024-01-19_MNT_Kassab-Motion-for-New-Trial_FILED.pdf,"New trial on all claims — vacate final judgment and order new trial. Alternatively, new trial on specific issues and/or remittitur of exemplary damages.","1/19/2024 3:31 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 83597613
By: Rhonda Momon
Filed: 1/19/2024 3:31 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et al. § IN THE DISTRICT COURT
V. § OF HARRIS COUNTY, TEXAS
SCOTT FAVRE, et al. § 281st JUDICIALk DISTRICT
THE KASSAB DEFENDANTS’ MOTION FOR NEWC TRIAL
In the alternative to their Motion for Judgment Notwithstanding the Verdict
and to Disregard Jury Findings (“the JNOV Motion”), Defenidants Lance Christopher
Kassab and Lance Christopher Kassab, P.C. d/b/a The Kassab Law Firm (“Kassab”)
file this Motion for New Trial and would respectfully show as follows.
SUMMARY
Pohl’s claims against Kassab are barlred as a matter of law, so the Court should
grant the JNOV Motion. To the extenMt the Court does not disregard findings of the
jury and enter a judgment notwithstanding the verdict in favor of Kassab, it should
grant a new trial for any one oif the following reasons:
1. Newly discovered evidence demonstrates that material witnesses
engaged in poerjury and Pohl engaged in unlawful bribery and witness
tamperinlg which resulted in the jury being deceived as to material
issuesi.
2. Factually insufficient evidence supports the jury’s finding in Question
1 that Pohl owned a trade secret in (a) attorney-client fee contracts
and (b) lists of Pohl’s actual, potential, or rejected clients.
3. The trial court erred by submitting Question 2, the misappropriation
question, to the jury because it failed to sufficiently distinguish the
acts of each defendant and included liability theories not supported
by legally sufficient evidence.
4. Factually insufficient evidence supports the jury’s finding in Qukestion
2 that Kassab misappropriated Pohl’s alleged trade secreCt.
5. The Court improperly submitted Question 3 on Pohl’s “wrongful
conduct” because it is not tied to the privilege quesition, proportionate
responsibility question or anything else in the jury charge.
6. The Court erred by refusing to submit Kassab’s proposed jury
question on immunity or privilege.
7. The Court erred by excluding explert testimony from Kassab and his
experts on whether Pohl comMmitted barratry.
8. The Court erred by refusing to submit Kassab’s proposed jury
question on his unlawiful acts defense.
9. The court erred in submitting Question 5, the limitations question,
because it oimproperly included the words “by Kassab” when
misapprolpriation of trade secrets is not a continuing tort and Pohl
sued Kiassab for conspiracy and thus misappropriation by any alleged
co-conspirator would have caused limitations to accrue.
10. The court erred in submitting Question 6, the attorney immunity
question, because it improperly included the language “in an
attorney-client relationship,” which was a comment on the weight of
the evidence.
11. Factually insufficient evidence supports the jury’s answer to Question
6, which asked whether Kassab used the purported trade secrets
while in an attorney-client relationship. k
12. The Court erred by submitting Question 7(1) and by alClowing Pohl
and his expert John Zavitsanos to testify about the attorney’s fees
incurred in the underlying barratry proceedings beicause the question
and testimony related to an improper element of damages for a
TUTSA claim.
13. The trial court erred by allowing Pohl to testify on lost revenue, lost
profits, or the purported value lof the trade secrets because the
property owner rule does noMt apply, and Pohl was not designated to
testify on those issues.
14. Factually insufficienit evidence supports the jury’s answer to
Questions 7(2) and (3).
15. Factually insoufficient evidence supports the jury’s finding that “the
misapprolpriation of Pohl’s trade secret(s) by Kassab was willful and
maliciious” (Question 8) based on “clear and convincing evidence”
(Question 17).
16. Factually insufficient evidence supports the jury’s finding of
exemplary damages in Question 19.
17. The Court improperly submitted Question 15 because conspiracy is
pre-empted by TUTSA or Chapter 33.
18. The Court erred by denying Kassab’s designation of responsible third
parties, including Billy Shepherd, Donalda Pohl, Edgar Jaimes, Ken
Talley and Magdalena Santana, which would have materially kaltered
the jury’s verdict. C
19. The Court erred by denying Kassab’s motion to abate this case
pending resolution of the related civil barratry liitigation currently
pending against Pohl in which Pohl claims attorney’s fees as damages.
20. The Court erred by allowing Pohl to assert affirmative claims against
Kassab but then withhold relevant and material information based
on purported claims of privilege. l
21. The Court erred by dismiMssing Kassab’s counterclaims for civil
barratry.
22. Factually insufficienti evidence supports the jury’s award of attorney’s
fees because the testimony from Pohl’s expert was conclusory and the
invoices wereo heavily redacted.
l ARGUMENT
I. Niewly discovered evidence demonstrates that Pohl
oengaged in unlawful bribery and witness tampering that
materially affected the jury verdict.
A motion for new trial is appropriate based on newly discovered evidence. See
TEX. R. CIV. P. 324(b)(1). Evidence that could not be discovered by Kassab until after
trial demonstrates that this jury verdict was impacted by key witnesses changing
their testimony because of Pohl’s bribery and witness tampering, resulting in a fraud
on this Court.
Specifically, in a December 8, 2023 recorded telephone call with Kassab, Scott
Walker, one of Pohl’s purported former agents and a key witness kin this case,
confessed that he and Kirk Ladner1 were promised 30 percentC of any judgment
against Kassab in exchange “for our depositions and our testimony and our positions
on certain things that, you know, helped and – in getting ithat judgment.”2 Walker
further stated that Pohl made that offer before their depositions3 and that Walker
and Ladner were “coached on how to be deposed.”4 Walker candidly admitted that he
“felt like [he] should call because … the whole premise of the depositions was based
on the 30 percent that we were promised.”5l
Walker’s candid after-trial revMelation demonstrates that Pohl obtained the
judgment against Kassab by committing witness tampering and suborning Walker’s
and Ladner’s aggravated perjuiry.6 A person commits the criminal offense of witness
1 Walker and Ladner were co-owners of Precision Marketing Group, a defendant in this case. Pohl
claimed that because thCey were his agents, they had an obligation to preserve his purported trade
secrets. 
2 Exhibit 1, Audio cTranscription, 5:6-15. Lance Kassab has authenticated the audio transcription with
his declaration, afttached as Exhibit 2. Additionally, the entire audio is hosted on Dropbox and may be
accessed via this link: https://www.dropbox.com/scl/fi/q3cgwnq8kzud4zpa3hlgx/December-8-2023-
Call-withU-Scott-Walker.m4a?rlkey=4srkzuiwva8af9ywq4qaun8zx&dl=0
3 Exhibit 1, Audio Transcription, 5:20-23.
4 Exhibit 1, Audio Transcription, 6:3-17.
5 Exhibit 2, Declaration of Lance Kassab.
6 Walker’s out of court statements are not hearsay because they would expose Walker to criminal
tampering if they, with the intent to influence a witness, confer or agree to confer any
benefit on a witness or prospective witness in an official proceeding, to testify falsely
or withhold any testimony or information. Id. at § 36.05(a). Walker’s statements
demonstrate that Pohl did that by offering him and Ladner 30 pekrcent of any
judgment against Kassab in exchange for their favorable and untrCuthful testimony.
Aggravated perjury occurs if the person, with intent to deceive, makes a false
statement under oath in an official proceeding. TEX. P DENi. CODE §§ 37.02, 37.03.
Walker stated that he and Lardner testified in their depositions, under oath and in
official proceedings, about “facts that weren’t necessarily told the correct way or told
on how it really happened.”7 Moreover, Walker made it clear that these fale
statements were made with the intent to dleceive because “the whole premise of the
depositions was based on the 30 perceMnt that we were promised.”8
Moreover, the false testimony from Walker and Ladner drastically changed the
course of the trial and resulteid in the fraudulent judgment. Although Walker and
Ladner testified one way in the Mississippi litigation they brought against Pohl, when
they were deposed in tohis case they reversed course on seminal issues of barratry and
ownership of Pohl’ls purported trade secrets.
liability. SUee TEX. R. EVID. 803(24)(A) (excluding from hearsay those statements that have a tendency
“to expose the declarant to civil or criminal liability.”). Additionally, the statements by Walker are
excluded from hearsay because, as Pohl testified at trial, Walker was his agent or because they are
made by a co-conspirator. TEX. R. EVID. 801(e)(2)(D), (E).
7 Exhibit 1, Audio Transcription, 6:3-17.
8 Exhibit 2, Declaration of Lance Kassab.
For instance, in his deposition in the Mississippi litigation, Walker testified
that Pohl paid Precision $5 million in “barratry money” to unlawfully solicit clients.9
In that deposition, Walker testified it was “clear to [him] it was barratry.”10 But in
this case, after being coached by Pohl, Walker recanted that testimony,k and took the
position that he “didn’t know what barratry meant until [his lawyerC in the Mississippi
litigation] Tina [Nicholson] taught [him] well on how to say the word”11 and “advised”
him to lie.12 But then in the unsolicited recorded phone caill, Walker confessed that
“it was barratry.”13 Walker admitted he was “coached on how to be deposed” in this
case and acknowledged that “some of the things that we were doing was, in fact,
barratry, you know, and I still feel like it was and I think – I do believe it was.”14
Walker’s testimony about ownershipl of information that Pohl claimed were his
trade secrets was also impacted by PoMhl’s witness tampering. Walker initially signed
an agreement that confirmed the 17 boxes of materials at issue in this lawsuit were
owned by Precision and not Piohl. But after being coached by Pohl, Walker took the
position in his deposition in this case “[w]hat I believed was that they were in our
possession. I did not boelieve that we owned them.”15 But in the unsolicited recorded
9 Exhibit 3, August i24, 2016 Deposition of Scott Walker, at 72-77, 196-197.
10 Exhibit 3, Aufgust 24, 2016 Deposition of Scott Walker, at 149.
11 ExhibitU 4, August 31, 2022 Deposition of Scott Walker, at 385.
12 Exhibit 4, August 31, 2022 Deposition of Scott Walker, at 384.
13 Exhibit 1, Audio Transcription, 8:14.
14 Exhibit 1, Audio Transcription, 8:12-24.
15 Exhibit 4, August 31, 2022 Deposition of Scott Walker, at 147-149.
phone call, Walker admits that “the whole premise of [his and Ladner’s] depositions
was based on the 30 percent that [they] were promised.”16
Because Walker’s and Ladner’s false deposition testimony in this case on these
seminal issues was inconsistent with their testimony from the Mississikppi litigation,
Kassab decided not to call Walker and Ladner as live witnesses at Ctrial.17 If Pohl had
not engaged in unlawful witness tampering and bribery, Walker and Ladner
presumably would have testified truthfully in their depositiions that Pohl hired them
to commit barratry, and that Precision owned the file documents that were sold to
Scott Farve and that the materials were Precision’s work product, not Pohl’s trade
secrets. If they had testified truthfully, Kassab would have called them as
witnesses,18 and that testimony would halve had a material impact on the jury’s
verdict. Specifically, that testimonyM would have impacted the jury’s answers to
Question 1 and 2, which asked whether Pohl owned a trade secret, whether Kassab
engaged in any misappropriatiion, and whether that misappropriation was regular or
willful; and it would have impacted the answer to Question 4, regarding Pohl’s
percentage of responosibility for causing the attorney’s fees associated with the
barratry litigationl. In other words, the newly discovered evidence demonstrates that
the jury was dieceived on material issues.
16 Exhibit 1, Audio Transcription, 11:23-24.
17 Exhibit 2, Declaration of Lance Kassab.
18 Exhibit 2, Declaration of Lance Kassab.
Accordingly, the Court should grant a new trial in light of this newly discovered
evidence. See In the Interest of E.S., No. 02-20-00407-CV, 2021 Tex. App. LEXIS 4153,
at *24 (Tex. App.—Fort Worth May 27, 2021, pet. denied) (mem. op.) (“In cases where
a witness willfully testifies falsely regarding a material fact, a new ktrial may be
granted.”); In re Marriage of Hutcherson, 2019 Tex. App. LECXIS 8719, at *10
(vacating judgment when “that the award is based on false testimony, and the [fact
finder] was deceived as to a material issue.”); Dixie Gas i& Fuel Co. v. Jacobs, 47
S.W.2d 457, 462 (Tex. Civ. App. – Beaumont 1932, writ dism'd w.o.j.) (where affidavits
presented with motion for new trial showed judgment was based on perjury, trial
court erred in denying motion for new trial); Rosebud Sioux Tribe v. A & P Steel, Inc.,
733 F.2d 509, 521-522 (8th Cir. 1984) (disltrict court abused its discretion by failing
to grant new trial based on newly dMiscovered evidence that party paid witness to
testify falsely).
II. Factually insuffiicient evidence supports the jury’s finding
in Question 1f that Pohl owned a trade secret in (a)
attorney-client fee contracts and (b) lists of Pohl’s actual,
potential, or rejected clients.
Factually insufficient evidence supports the jury’s answer to Question 1, which
asked whether Piohl owned a trade secret in either attorney-client fee contracts or
lists of Pohlo’s actual, potential or rejected clients.
As a matter of law, Pohl cannot own a trade secret in attorney-client contracts
because they are owned by the client. See In re George, 28 S.W.3d 511, 516 (Tex. 2000)
(“The attorney is the agent of the client, and the work product generated by the
attorney in representing the client belongs to the client.” (emphasis added)). Any
testimony from Pohl or his expert witness John Zavitsanos to the contrary was
conclusory, made without foundation or legal authority, and amounts to no evidence.
Conversely, the testimony from Kassab and his experts established that the attorney-
client contracts are owned by the clients, not Pohl. Their testimony is ksupported by
Texas law governing ownership of client-related materials.19 ECven Pohl’s office
manager, Mary Francis Arnold, testified that she did not consider the attorney-client
contracts trade secrets. Thus, there was insufficient evideince to support the jury’s
answer to Question 1(a), which concluded that Pohl had rightful, legal or equitable
title to the attorney-client fee contracts.
Insufficient evidence also supports the jury’s answer to Question 1(b), finding
that Pohl owned a trade secret in “[a]ny lislt of the identities and contact information
of [his] actual, potential or rejected clMients.” Pohl testified that he did not have a list.
Rather, the lists were created by another attorney named Jimmy Williamson and
Precision. The current owner iof Precision, Scott Favre, testified that Precision’s list
was owned by Precision, not Pohl. Pohl’s office manager also testified that the lists
were created by Precoision, not Pohl. There was no testimony from any witness to
establish that Pohll was the “owner” of any of the lists of clients that were provided to
Kassab. i
Pohl also failed to present evidence that the information “derives independent
19 The fact that Pohl can assert a lien over the client file does not mean he is the rightful, legal, or
equitable owner of the contracts. See In re McCann, 422 S.W.3d 701, 706 (Tex. Crim. App. 2013) (noting
that “a lien, by its definition, is a transitory interest in someone else's property and, therefore, the
attorney asserting such a lien never owns the property at issue, the client owns the file by implication
(if the attorney does not)”) (emphasis added).
10
economic value, actual or potential, from not being generally known to, and not being
readily ascertainable through proper means by, another person who can obtain
economic value from the disclosure or use of the information.” TEX. CIV. PRAC. & REM.
CODE § 134A.002(6)(B). To meet his burden of proving misappropriaktion of trade
secrets, Pohl was required to prove that the information misapprCopriated provided
him with a “competitive advantage.” Fmc Techs. v. Murphy, No. 01-21-00455-CV,
2023 Tex. App. LEXIS 5984, at *62 (Tex. App.—Houston i[1st Dist.] Aug. 10, 2023,
pet. filed) (mem. op.). Pohl failed to present factually sufficient evidence — or any
evidence — to establish what competitive advantage the information provided him to
the exclusion of others.
Moreover, Pohl failed to offer evidelnce to establish that he took “reasonable
measures under the circumstances toM keep the information secret.” TEX. CIV. PRAC. &
REM. CODE § 134A.002(6). The uncontroverted evidence established that the attorney-
client contracts were not mariked “confidential” or “trade secret” and that multiple
individuals in the underlying BP and auto accident litigation had unfettered access
to the information. Poohl’s office manager testified that she did not secure the
attorney-client conltracts “in any form or fashion.” She testified that Pohl never told
her the attorniey-client contracts were his trade secrets, and that the owners of
Precision kept the information Pohl claimed were his trade secrets in a storage unit
to which anyone could have access to. She further testified that she kept the
information at her home in unlocked cabinets without any instruction from Pohl to
secure the information. The same information was also kept unsecured in Ladner’s
11
garage for months.
Moreover, the client-related information was not a trade secret because it was
generally known to third parties. or Pohl to submit a claim to BP, he had to disclose
client-related information to BP. Further, the uncontroverted testimkony at trial
established that the list of master clients was voluntarily prodCuced in discovery
during the Mississippi litigation to Favre, Tina Nicholson and several third parties20
in August 2016 – before the information was provided ito Kassab – without a
protective order, confidentiality stamp, confidentiality agreement, or anything else
prohibiting its disclosure. Additionally, the master list of clients was posted publicly
online through PACER in the Mississippi litigation for more than six years and is
still there today. Based on the evidence, a lreasonable jury could not have concluded
that Pohl used reasonable measures uMnder the circumstances to keep the information
secret.
III. The Court erreid by submitting Question 2 to the jury
because it failefd to sufficiently distinguish the acts of each
defendant and included liability theories not supported by
legally sufficient evidence.
Pohl sued Kassab for indirect misappropriation under subsection
134A.002(3)(B) fior allegedly “misappropriating Pohl’s trade secrets by using them
without thoe express or implied consent of Pohl” in violation of Section
134A.002(3)(B).21 Pohl made no allegation, and presented no evidence, that Kassab
20 Those parties included, among others, Nathan Farmer, Charles Mikhail, Carl Hagwood, James
Welch, Scott Walker, Steve Seymour, Kirk Ladner, Cyndi Rusnak, Marian Mchehee, Yousef Nasrallah,
Trevor Brock and Robin Gross.
21 Plaintiffs’ First Amended Petition, ¶ 42.
12
engaged in direct misappropriation and acquired Pohl’s purported trade secrets
through improper means in violation of Section 134.002(3)(A). Yet, Question 2
improperly tracked the language of Section 134.002(3)(A) and therefore a theory of
liability against Kassab for direct misappropriation that was neitkher pled nor
supported by the evidence. See Tex. Comm'n on Human RightsC v. Morrison, 381
S.W.3d 533, 537 (Tex. 2012) (“A broad-form question cannot be used to put before the
jury issues that have no basis in the law or the evidence.”) (iinternal quotation marks
omitted); Title Source, Inc. v. HouseCanary, Inc., 612 S.W.3d 517, 531 (Tex. App.—
San Antonio 2020, pet. denied) (“Because those theories are not supported by the
evidence, they should have been omitted from the ‘improper means’ definition that
was submitted to the jury.”). l
Moreover, Pohl alleged onMly that Favre, Precision and Nicholson
misappropriated his trade secrets “by theft.”22 Yet the definition of “improper means”
in the jury charge was incorrecitly defined to include multiple other acts besides theft:
Because there was no allegation or evidence that the alleged misappropriation
occurred nby any means other than theft, the definition was improper. See
HouseCanary, 612 S.W.3d at 531 (submission of definition of “improper means” that
included “bribery” and “espionage” was improper when “there is no evidence [the
22 Plaintiffs’ First Amended Petition, ¶ 41.
13
defendant] acquired the trade secrets through bribery [or] through espionage.”).
The jury was influenced by the erroneous inclusion of the additional
misappropriation theories. Pohl alleged that Precision and its former owners were
the first to appropriate Pohl’s purported trade secrets, first by convertking them and
using them in the Mississippi litigation, and then selling them tCo Favre, who then
allegedly sold them to Kassab. Despite that, the jury found that Precision did not
engage in any wrongful misappropriation. Yet, the jury coincluded that Kassab did
misappropriate the information he acquired from Favre and found Kassab 70%
responsible for Pohl’s alleged damages. Because Pohl heavily emphasized the
evidence of misappropriation by others through means not relevant to Kassab, the
Court cannot rule out the possibility that lthe jury found misappropriation based on
those theories. That is sufficient to deMmonstrate harm from the erroneous submission
of unpled and unproven theories of misappropriation. See Tex. Comm'n on Human
Rights v. Morrison, 381 S.W.3id 533, 537 (Tex. 2012) (“[W]hen a broad-form question
allows a finding of liability based on an invalid theory, an appealing party does not
have to prove that thoe jury actually relied on the invalid theory.”). The inclusion of
those issues in thle charge constituted harmful error. See Crown Life Ins. Co. v.
Casteel, 22 S.Wi.3d 378, 389 (Tex. 2000).
IV. Factually insufficient evidence supports the jury’s finding
in Question 2 that Kassab misappropriated Pohl’s trade
secret.
Pohl alleged that Favre and Precision illegally misappropriated trade secrets
from him, and that Kassab subsequently committed indirect misappropriation by
14
acquiring illegally misappropriated trade secrets from Favre and Precision.23
Although Pohl originally sued Precision, he non-suited his claims against Precision.
Nevertheless, Precision was designated as a responsible third party, and defined in
the charge to include Precision’s former owners (Scott Walker, Steve kSeymour and
Kirk Ladner) prior to May 12, 2015 and Favre after May 12, 2015C.24 When the jury
was asked whether Precision misappropriated trade secrets from Pohl, it found that
Precision did not.25 It also answered “0” in Question 4 whein asked what percentage
of the “fault that caused the injury” was attributable to Precision.26 This finding
demonstrates that there is insufficient evidence that Kassab engaged in
misappropriation.
To be liable for misappropriation balsed upon the acquisition of a trade secret,
Kassab must “know[] or ha[ve] reasonM to know that the trade secret was acquired by
improper means” or “derived from or through a person who used improper means to
acquire the trade secret.” TEXi. CIV. PRAC. & REM. CODE §§ 134A.002(3)(A), (B)(ii)(a).
23 Plaintiff’s First Amendedp Petition, at ¶ 21 (“Favre and Precision illegally misappropriated
Pohl’s proprietary ando confidential information and property …which included information
about and/or communicCations with as many as 10,000 or more of Pohl’s clients/prospective clients.
Favre and Precision stole physical copies of certain of the information, stole Pohl’s computers,
and misappropriateda electronic data to which they had access through Precision’s work for Pohl.”)
(emphasis addedc); iid. at ¶ 40 (“Favre, Precision, and Nicholson willfully and maliciously
misappropriated iPohl’s trade secrets by acquiring them through improper means—specifically, by
theft.”); id. at o¶ 41 (“Favre, Precision, and Nicholson willfully and maliciously misappropriated Pohl’s
trade secretns by disclosing them via sale to Kassab and Montague (who purchased the trade
secret inUformation knowing that it had been stolen) without the express or complied consent of
Pohl.”) (emphasis added); id. at ¶ 42 (“All Defendants willfully and maliciously misappropriated Pohl’s
trade secrets by using them without the express or implied consent of Pohl.”).
24 Verdict, at Definitions.
25 Verdict, Question 2(a)(3) and 2(b)(3).
26 Verdict, Question 4(3).
15
But here, the jury determined that Precision did not engage in any
misappropriation.27 And if Precision and its former owners did not engage in
misappropriation by transferring the information to Favre, then Favre could not have
acquired the information by improper means. The jury’s finding that Pkrecision, and
those associated with Precision, did not misappropriate anything —C meaning it either
owed no duty to Pohl or breached no duty to Pohl when it provided Pohl's alleged
information to Favre, who then provided it to Kassab — pirecludes liability against
Kassab for indirect misappropriation.
Even if the jury found that Precision had misappropriated this information,
there is insufficient evidence that Kassab knew the information had been acquired
by improper means. See TEX. CIV. PRACl. & REM. CODE § 134A.002(3)(A). The
testimony was that Favre purchased PMrecision, which certified to Favre that it owned
the information at issue, and then Favre provided that information to Kassab, after
certifying to Kassab that the iinformation belonged to Precision and not Pohl. Thus,
Pohl presented no evidence that Kassab knew or had reason to know that the
information was a traode secret owned by Pohl – as opposed to information owned by
Precision – nor wals there evidence that the information was obtained by Favre or
Precision throuigh improper means.
V. The Court improperly submitted Question 3 on Pohl’s
“wrongful conduct” because it was not tied to any portion
of the charge.
Question 3 asked the jury “Did the wrongful conduct of Pohl, if any, contribute
27 Verdict, Question 2(a)(3) and 2(b)(3).
16
to the injury, if any, found by the jury?” This question is improper because it was not
tied to any other part of the charge, so that this important finding against Pohl is left
hanging by itself, when it should have been directly relevant to other parts of the
charge, including Question 4, the proportionate responsibility questionk, Question 6,
the attorney immunity question, and Kassab’s unlawful acts, privilCege and immunity
questions, which were improperly refused (see infra at Section VIX).
VI. The Corut improperly refused Kassabi’s proportionate
responsibility question.
Kassab submitted a proper proportionate reseponsibility question, which was
refused. That question instructed the jury to uanswer the question that if they
answered the misappropriation question “yes” as to Kassab or “yes” to the question
about Pohl’s wrongful conduct. The propaosed question asked: “What percentage of the
fault that caused the injury do you find to be attributable to each of those listed below
and found by you in your answeers to have been at fault” and then listed Pohl and
Kassab and other defenda
ntfs.28 The Court erred by refusing that question. If that
question had been properly submitted, the jury likely would have assigned some
responsibility to Pohl for his injuries.
Instead, tihe Court submitted Question 4, which asked the jury “[w]hat
percentage oof the fault that caused the injury do you find to be attributable to each of
those listed below and found by you in your answers to Question No. 2 to have been
at fault.” The jury put “0” for Pohl because Pohl was not identified in Question 2,
which asked what parties misappropriated Pohl’s alleged trade secrets. Question 4
28 Exhibit 5, Refused Proposed Question 7.
17
should have indicated that if the jury finds that Pohl contributed to causing the
injury, it should assign a percentage of fault to Pohl. The language in Question 4 was
improper.
VII. The court improperly submitted the limitations qukestion
(Question 5) with the limiting words “by Kassab” e because
it failed to allow for the possibility that misappCropriation
by any alleged co-conspirator would have caused
limitations to accrue.
Question 5 asked: “[b]y what date should Pohl, in tihe exercise of reasonable
diligence, have discovered the acquisition, use or disclosure of his trade secrets by
Kassab?” The Court erred by adding the words “by Kassab.” Because Pohl sued
Kassab for conspiracy and misappropriation accrued upon the first act of
misappropriation by Kassab’s alleged co-clonspirators. So this limitations question
should have asked when the misapprMopriation occurred in a way that included the
earlier acts of Kassab’s alleged co-conspirators, rather than being limited to him.
“A person must bring suiit for misappropriation of trade secrets not later than
three years after the misappropriation is discovered or by the exercise of reasonable
diligence should haveo been discovered.” TEX. CIV. PRAC. & REM. CODE 16.010(a). “A
misappropriation lof trade secrets that continues over time is a single cause of
action and thie limitations period described by Subsection (a) begins running
without regard to whether the misappropriation is a single or continuing
act.” Id. at § 16.010(b) (emphasis added). In other words, TUTSA “explicitly precludes
treating trade secret misappropriation as a continuing tort.” Gen. Universal Sys. v.
HAL Inc., 500 F.3d 444, 451 (5th Cir. 2007).
18
“A cause of action for trade-secret misappropriation accrues when the trade
secret is actually used.” Sw. Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 721
(Tex. 2016). Here, the evidence demonstrated that Pohl knew the files and materials
he claims are his trade secrets had been misappropriated and used by kPrecision and
its former owners Walker, Ladner and Seymore in June 2014, wChen they used the
client related information in the Mississippi litigation to file claims against Pohl. “Use
of the trade secret means commercial use by which the offeniding party seeks to profit
from the use of the secret.” Id. That was the first act of misappropriation, which began
accrual of limitations. TEX. CIV. PRAC. & REM. CODE 16.010(b).
The next alleged act of misappropriation occurred when Precision’s former
owners again profited from the alleged tralde secret information by selling Precision
and its files, including the alleged trMade secret information, to Favre in May 2015.
“Use” of a trade secret means “any exploitation of the trade secret that is likely to
result in injury to the trade siecret owner or enrichment to the [non-trade secret
owner].” Sw. Energy, 491 S.W.3d at 722 (emphasis added). Because Pohl was aware
that Precision had usoed these purported trade secrets in May 2015, he was required
to file his claims algainst Kassab and other alleged coconspirators before May 2018,
at the latest. S
iee TEX. CIV. PRAC. & REM. CODE 16.010(a).
Pohl did not file this lawsuit until August 2018, more than three years after
Precision and Favre used Pohl’s purported trade secrets, alleging Kassab, Favre and
Precision “engaged in a scheme pursuant to which they illegally obtained,
maintained, and used trade secrets and other confidential information and property
19
belonging to Pohl.”29
Pohl argued that his claims against Kassab did not accrue until September 19,
2017, when the court in the Mississippi litigation ordered the expert retainer
agreement between Favre and Kassab to be produced, which Pohl chakracterized as
an agreement to purchase the purported trade secrets. But transfeCr or use of already-
misappropriated trade secrets by a purported co-conspirator does not re-start the
limitations clock. See TEX. CIV. PRAC. & REM. CODE 16.
01i0(a); Agar Corp., Inc. v.
Electro Circuits Int'l, LLC, 580 S.W.3d 136, 145 (Tex. 2019) (rejecting the “last-overt-
act accrual rule” and concluding that conspiracy claim for misappropriation of trade
secrets accrues against all co-conspirators “when the underlying tort accrues.”) (citing
with approval Harang v. Aetna Life Ins. Clo., 400 S.W.2d 810, 813 (Tex. Civ. App.—
Houston 1966, writ ref'd n.r.e.) (concMluding limitations runs from when the injury
occurs and therefore conspiracy claim against the late-added co-conspirators was
time-barred)). In other words,i “[a] conspiracy claim based on an earlier underlying
tort does not re-accrue when the co-conspirators agree to commit a second tort or
make another overt aoct.” Agar Corp., 580 S.W.3d at 145.
Therefore, ilt is irrelevant when Pohl discovered his purported trade secrets
had been useid “by Kassab” as opposed to other alleged co-conspirators. See id.
(conspiracy claim against co-conspirator time barred because the claim accrued when
trade secrets were used initially used by other coconspirators, not when alleged
coconspirator later purchased the trade secret information). The proper inquiry is the
29 Plaintiffs’ Original Petition, ¶ 2
20
question submitted by Kassab that this Court erroneously refused: “[b]y what date
should Pohl, in the exercise of reasonable diligence, have discovered the acquisition,
[use] or disclosure of his trade secrets?” See TEX. CIV. PRAC. & REM. CODE 16.010(a)
(claim for misappropriation accrues when “misappropriation is discovekred or by the
exercise of reasonable diligence should have been discovered.”);C Sw. Energy, 491
S.W.3d at 722 (“the statute of limitations did not begin to run until [the plaintiff]
knew or should have known of facts that in the exercise of reiasonable diligence would
have led to discovery of the misappropriation.”); Agar Corp., 580 S.W.3d at 146
(claims against co-conspirators accrue on the same date as the first overt act). The
Court therefore should not have included the “by Kassab” language in the charge.
VIII. Insufficient evidence sulpports the jury’s answer to
Question 5. a
In Question 5 the jury found that Pohl should have discovered the acquisition,
use or disclosure of his trade alleeged trade secrets by Kassab by August 19, 2017. The
uncontroverted evidence demfonstrated that Pohl knew his materials he claims as
trade secrets had been appropriated and used by Precision and its former owners in
June 2014, when they used the client related information in the Mississippi litigation
to file claims agaiinst Pohl. Pohl testified that Kassab was part of the “team of thieves”
who commiotted that alleged theft in 2014. Thus, Pohl should have known of Kassab’s
alleged conspiracy to misappropriate his alleged trade secrets no later than June
2014.
At the latest, Pohl should have discovered the acquisition, use or disclosure of
his trade secrets in May 2015 when Precision’s former owners again profited from the
21
alleged trade secret information by selling Precision and its files, including the
alleged trade secret information, to Favre, who Pohl alleged was Kassab’s co-
conspirator. Reasonable jurors could not disregard this evidence.
IX. The Court erred by refusing to submit Kassab’s prokposed
jury question on his unlawful acts defense (Peroposed
Question 6) and immunity and privilegeC defense
(Proposed Question 8). 
The trial court is required to submit questions raised bty the written pleadings
and the evidence. TEX. R. CIV. P. 278. This is a “sub
stantive, non-discretionary
directive to trial courts requiring them to submit reequested questions to the jury if
the pleadings and any evidence support them.” Eulbaor v. Smith, 845 S.W.2d 240, 243
(Tex. 1992). A trial court may refuse to submit an issue only if no evidence exists to
warrant its submission. Id. Kassab reaquested the Court to submit two proposed
questions relating to his affirmative defenses raised in his pleadings, which the
evidence supported. e
First, Kassab requestfed that the Court submit Proposed Question 6, which
asked, “Did Pohl commit unlawful or unethical conduct including barratry or the
unauthorized practice of law to acquire the information he is claiming as trade
secrets?”30 That iquestion was proper and directly relevant to Kassab’s unlawful acts
defense, whoich provides that “no action will lie to recover a claim for damages, if to
establish it the plaintiff requires aid from an illegal transaction, or is under the
necessity of showing or in any manner depending upon an illegal act to which he is a
party.” Gulf, C. & S. F. RY. Co. v. Johnson, 621, 9 S.W. 602, 602-03 (1888). “Courts
30 Exhibit 6, Refused Proposed Question 6.
22
have interpreted this defense to mean that if the illegal act is inextricably intertwined
with the claim and the alleged damages would not have occurred but for the illegal
act, the plaintiff is not entitled to recover as a matter of law.” Sharpe v. Turley, 191
S.W.3d 362, 366 (Tex. App.—Dallas 2006, pet. denied). Courts havek applied the
doctrine without a conviction of a crime so long as “the unlawfCul act barring the
plaintiff's claim was in fact illegal conduct.” McNally v. McNally, No. 02-18-00142-
CV, 2020 Tex. App. LEXIS 7211, at *27 (Tex. App.—Fort iWorth Sep. 3, 2020, pet.
denied) (mem. op.).
There was substantial evidence to support submission of this proposed
question. Pohl’s own testimony demonstrated that he committed the unauthorized
practice of law in Mississippi because he hlad no license there, and his pleadings in
the Mississippi litigation demonstrateMd that Pohl hired Precision to commit unlawful
solicitation of clients. Kassab testified that he believed Pohl committed barratry and
the unauthorized practice of laiw in Mississippi. Kassab’s expert, Professor Benjamine
Cooper, testified Pohl committed the unauthorized practice of law in Mississippi.
Pohl’s office managero, Mary Francis Arnold, testified that Pohl paid Precision to
acquire clients andl refer them to Pohl, and that Pohl paid Precision a percentage of
his fees in exchiange. Donalda Pohl, Pohl’s wife, testified to facts indicating that Pohl
committed barratry. Lacy Reese testified to facts indicating that Pohl committed
barratry. A “yes” answer to Proposed Question 6 would have established that Pohl
acquired the purported trade secrets unlawfully, thus precluding any recovery for
misappropriation of trade secrets.
23
Second, Kassab requested that the Court submit Proposed Question 8, which
asked, “Did Kassab use or disclose Pohl’s information for the purpose of reporting,
investigating, or filing a lawsuit relating to a suspected violation of law, a commission
of a crime, or other matters of substantial public concern?”31 That questiokn was proper
and directly relevant to Kassab’s privilege or immunity defense becCause “trade secret
law permits disclosures relevant to public health or safety, commission of crime or
tort, or other matters of substantial public concern.” Bartinicki v. Vopper, 532 U.S.
514, 539 (2001); RESTATEMENT (THIRD) OF UNFAIR COMsPETITION § 40, cmt. c (1995) (“A
privilege is likely to be recognized, for example, in connection with the disclosure of
information that is relevant to public health or safety, or to the commission of a crime
or tort, or to other matters of substantial pulblic concern.”); RESTATEMENT OF THE LAW,
TORTS § 757, cmt. d (“A privilege Mto disclose may also be given by the law,
independently of the other's consent, in order to promote some public interest.”);
Alderson v. United States, 718 iF. Supp. 2d 1186, 1200 (C.D. Cal. 2010), aff'd, 686 F.3d
791 (9th Cir. 2012) (“[T]here simply cannot be any trade secret about ongoing
illegality.”); Sys. Operoations, Inc. v. Sci. Games Dev. Corp., 425 F. Supp. 130, 136
(D.N.J. 1977) (“dislclosure of trade secret information may itself be privileged.”).
There wias more than sufficient evidence to support submission of this proposed
question. Pohl testified that Kassab used or disclosed Pohl’s alleged trade secrets –
the attorney-client contracts and list of Pohl’s actual, potential, or rejected clients –
to file lawsuits and grievance proceedings against Pohl for barratry. The act of
31 Exhibit 7, Refused Proposed Question 8.
24
barratry is a “serious crime” and certainly a matter of substantial public concern. See
TEX. DISC. R. PROF’L COND. 8.04(b). Kassab denied that the information constituted
Pohl’s trade secrets but testified that the information was used to discharge his
ethical obligations and report Pohl’s misconduct to the disciplinary akuthority and
inform individuals who may have been unlawfully solicited by PoChl that what Pohl
did was a crime.32 A “yes” answer to Proposed Question 8 would have established that
Kassab had privilege or immunity with respect to any purpoirted misappropriation or
“use” of Pohl’s alleged trade secrets.
Charge error is generally considered harmful, and thus reversible, if it relates
to a contested critical issue. See R.R. Comm'n of Tex. v. Gulf Energy Expl. Corp., 482
S.W.3d 559, 566-71 (Tex. 2016). Kassab’sl Proposed Questions 6 and 8 were both
contested critical issues because a M“yes” answer to either question would have
precluded liability against Kassab. The Court erred by refusing to submit these
questions, warranting a new triial. See id. (trial court erred when it erroneously failed
to submit to the jury affirmative defense that was pled and supported by evidence);
Fort Worth Indep. Scoh. Dist. v. Palazzolo, 498 S.W.3d 674, 686 (Tex. App.—Fort
Worth 2016, pet. dlenied) (same).
32 “[P]ubliUc policy strongly favors exposure of crime.” Wal-Mart Stores, Inc. v. Medina, 814 S.W.2d 71,
73 (Tex. App.—Corpus Christi 1991, writ denied). Kassab had an ethical obligation to notify the State
Bar of Pohl’s misconduct, and the individuals under the rules of ethics and as an officer of the court.
See TEX. DISC. R. PROF’L COND. 8.03(a) (“a lawyer having knowledge that another lawyer has
committed a violation of applicable rules of professional conduct … shall inform the appropriate
disciplinary authority.”); id. at Cmt. 1 (“Reporting a violation is especially important where the victim
is unlikely to discover the offense.”). Kassab was doing what Pohl should have done, disclosing
misconduct to the individuals. See Cluck v. Mecom, 401 S.W.3d 110, 114 (Tex. App.—Houston [14th
Dist.] 2011, pet. denied) (“A fiduciary has an affirmative duty to make a full and accurate confession
of all his fiduciary activities, transactions, profits, and mistakes.”).
25
X. The Court erred by precluding Kassab and his experts
from testifying that Pohl committed barratry.
Even though the Court concluded that evidence of Pohl’s barratry was
relevant, it improperly precluded Kassab and his experts from testifying that Pohl
committed barratry. Exclusion of this evidence was error that probeably caused the
rendition of an improper judgment. 
“An opinion is not objectionable just because it embratces an ultimate issue.”
Tex. R. Evid. 704. “[A]n expert may state an opinion on mixed questions of law and
fact, such as whether certain conduct was negligenet or proximately caused injury,
that would be off limits to the ordinary witness.” uIn re Christus Spohn Hosp. Kleberg,
222 S.W.3d 434, 440 (Tex. 2007). Whether Pohl committed barratry is a mixed
question of law and fact because “a staandard or measure has been fixed by law and
the question is whether the person or conduct measures up to that standard.” Mega
Child Care v. Tex. Dep't of Proteective & Regulatory Servs., 29 S.W.3d 303, 309 (Tex.
App.—Houston [14th Dist.] f2000, no pet.). Thus, Texas courts have often allowed
expert witnesses to testify that a person’s conduct amounted to barratry. See The
State Bar v. Kilpatrick, 874 S.W.2d 656, 657 (Tex. 1994) (noting the State Bar had
presented an expiert who “testified on the issue of barratry” and rendering judgment
disbarring aottorney who was guilty of barratry, even absent any criminal conviction);
State v. Mercier, 164 S.W.3d 799, 816 (Tex. App.—Corpus Christi 2005, pet. ref'd)
(concluding that the State’s expert’s testimony about how “the Texas Disciplinary
Rules of Professional Conduct prohibit an attorney to pay a non-attorney for economic
benefits where the non-attorney referred cases to the attorney, namely, in exchange
26
for soliciting auto accident victims” and how the defendant’s “conduct violated rules
7.03(b) and (c) of the Disciplinary Rules” negated an exception to the criminal
barratry statute which excepts conduct permitted by the Disciplinary Rules).33
The exclusion of this evidence probably caused the rendition ofk an improper
verdict. If the evidence of Pohl’s barratry had been admitted thCe jury could have
concluded that Pohl is not the legal, equitable or rightful owner of any purported
trade secret, or it could have found Pohl primarily responsiible for the attorney’s fees
that Pohl incurred defending against the barratry proceedings. The evidence was not
cumulative of other evidence because no witness was permitted to offer an opinion
that Pohl committed barratry. Rather, Kassab was limited to testifying to his
personal “belief” that Pohl committed barrlatry, which carries much less wait than a
disinterested expert witness. M
XI. The court erred in submitting Question 6 with the
language “in an aettorney client relationship” because that
was an impropeir comment on the weight of the evidence.
A trial court may n
ot comment on the weight of the evidence. TEX. R. CIV. P.
277. “To be a direct coomment on the weight of the evidence, the issue submitted must
suggest to the juryl the trial court's opinion on the matter.” H.E. Butt Grocery Co. v.
Bilotto, 985 S.iW.2d 22, 24 (Tex. 1998). Here, the trial court directly commented on
the weight of the evidence in Question 6, which asked: “Did Kassab acquire or use
33 See also Reynolds v. State, No. 08-15-00373-CR, 2017 Tex. App. LEXIS 11059, at *15-16, 32-33 (Tex.
App.—El Paso Nov. 29, 2017, pet. ref'd) (upholding criminal conviction for barratry based on State’s
expert witness who testified about “the barratry statute and the appropriate manner in which an
attorney can secure clients” and noting that while the defendant contended that the money paid to a
purported marketing company was for legitimate advertising, “the jury could have concluded
otherwise with the guidance of the State's expert who addressed what might be proper marketing
activities through third parties.”).
27
Pohl’s trade secret while in an attorney client relationship and attempting to provide
legal services in that relationship involving the unique office professional skill,
training and authority of an attorney?”34 The limiting language “while in an attorney
client relationship” suggested the trial court’s opinion that Kassab cokuld not have
used Pohl’s trade secrets while in an attorney-client relationship bCecause the alleged
misappropriation occurred before Kassab had any clients.
XII. The jury’s answer to Question 6 wais supported by
insufficient evidence.
The jury’s “no” answer to Question 6 was supeported by insufficient evidence
because the great weight and preponderance of tuhe evidence demonstrated that even
if the attorney-client information constituted trade secrets, Kassab “used” that
information while in an attorney-client arelationship. Moreover, he was attempting to
provide legal services in that relationship involving the unique office professional
skill, training and authority of aen attorney.
The evidence proved fthat Kassab used client contact information to send
notification letters to victims of Pohl’s barratry scheme through the middle of 2017
while in attorney-client relationships with hundreds of clients beginning in February
2017. Pohl testifiied that Kassab’s “use” of the information was the proximate cause
of his damaoges, which included attorney’s fees incurred in connection with lawsuits
and grievances that Kassab filed on his clients’ behalf.35 The evidence was undisputed
34 Verdict, Question 6.
35 Verdict, Question 7(1).
28
that except for one of the grievances, Kassab filed those proceedings on behalf of
his clients while in an attorney-client relationship.36 The acquisition of clients and
filing of lawsuits are actions taken “to facilitate the rendition of legal services” that
fall within attorney immunity. Youngkin v. Hines, 546 S.W.3d 675, 68k2 (Tex. 2018)
(recognizing that “the complained-of actions included filing lawsuiCts and pleadings,”
which fell within the doctrine of attorney immunity). Indeed, the jury awarded Pohl
attorney’s fees as damages for defending against lawsuiits brought by Kassab’s
clients, finding those fees to be “proximately caused” by Kassab’s misuse of the
purported trade secrets.37
Accordingly, the jury could not reasonably conclude that Kassab did not “use”
Pohl’s alleged trade secrets. l
XIII. The trial court erredM by submitting Question 7(1) and
allowing Pohl and his expert John Zavitsanos to testify
about the attorney’s fees incurred in the underlying
barratry proceeedings because attorney’s fees from
previous litigatiion are not recoverable in a TUTSA claim.
TUTSA provides recovery for “actual loss[es] caused by misappropriation” but
the act does not defione that term. See TEX. CIV. PRAC. & REM. CODE § 134A.004.
Although no Texasl case has attempted to define that term in TUTSA, the act requires
it to “be applieid and construed to effectuate its general purpose to make uniform the
36 It is worth noting that the court of appeals in this case has already concluded that “the alleged
purchase of Pohl[’s] client list for those clients’ contact information, followed by the mailing of attorney
advertisements to those individuals about specific types of claims they might be able to pursue against
a specifically identified attorney, qualifies as statements or conduct that arose out of a
commercial transaction involving the type of legal services Kassab provides.” Kassab v. Pohl,
612 S.W.3d 571, 578 (Tex. App.—Houston [1st Dist.] 2020, pet. denied) (emphasis added).
37 Verdict, Question 7.
29
law with respect to the subject of this chapter among states enacting it.” TEX. CIV.
PRAC. & REM. CODE § 134A.008. Thus, the Court must look to and be guided by
decisions from other states that have adopted the Uniform Trade Secrets Act. See
Morgan v. Clements Fluids S. Tex., Ltd., 589 S.W.3d 177, 191 n.4 (Texk. App.—Tyler
2018, no pet.) (looking to Florida law when interpreting TUTSA becCause “[t]he Florida
Uniform Trade Secrets Act is very similar to the TUTSA”).
Courts in other jurisdictions “have made clear that ‘aictual loss’ means ‘loss of
profits, lost customers or lost market share.’” K3 Enter., Inc. v. Sasowski, No. 20-
24441-CIV-CAN, 2022 U.S. Dist. LEXIS 234206, at *10 (S.D. Fla. 2022) (concluding
reputational damage was not an “actual loss” under Florida’s Uniform Trade Secrets
Act) (citing Fin. Info. Techs., LLC v. iConltrol Sys., USA, LLC, 21 F.4th 1267, 1276
(11th Cir. 2021) (understanding “actuaMl loss” in terms of lost profits); Selectica, Inc. v.
Novatus, Inc., No. 6:13-cv-1708-Orl-40TBS, 2015 U.S. Dist. LEXIS 191940, at *9
(M.D. Fla. 2015) (“‘Actual lossi’ has been defined as ‘loss of profits, lost customers or
lost market share.’”); Saforo & Assocs., Inc. v. Porocel Corp., 991 S.W.2d 117, 124
(Ark. 1999) (concludiong that “actual loss” means “the plaintiff’s lost profits or the
defendant’s gain, wlhichever affords the greater recovery.”).
In a casie construing the Idaho Uniform Trade Secrets Act, the Idaho Supreme
Court held that “actual loss” means “lost profits, lost customers, lost market share,
and similar losses,” but specifically held that “it would be an anomaly for us to allow
attorney fees to be recovered in a case like this as part of damages.” GME, Inc. v.
Carter, 917 P.2d 754, 757 (Idaho 1996); see also Twin Falls Staffing, LLC v. Visser
30
(In re Visser), No. 1:13-cv-00408-BLW, 2014 U.S. Dist. LEXIS 56705, at *9 (D. Idaho
2014) (citing Carter to conclude that losses from misappropriation of trade secrets
“logically include lost profits, but not attorneys’ fees.”).
The conclusion that attorney’s fees from other litigation are notk actual losses
recoverable under TUTSA is consistent with Texas trade secret lawC before the statute
was enacted. The Texas Supreme Court defined recoverable losses for a trade secret
claim as “the value of the plaintiff’s lost profits, the defendiant’s actual profits from
the use of the secret, the value a reasonably prudent investor would have paid for
the trade secret, the development costs the defendant avoided by the
misappropriation, and a reasonable royalty.” Sw. Energy Prod. Co. v. Berry-
Helfand, 491 S.W.3d 699, 710–11 (Tex. 20l16) (emphasis added). No Texas court has
ever allowed attorneys’ fees in otherM cases to be recovered as actual damages in a
trade secret claim. In fact, at least one has concluded the opposite while dismissing a
TUTSA claim. See Lacore Enteirs., LLC v. Angles, No. 05-21-00798-CV, 2023 Tex. App.
LEXIS 1926, at *32-33 (Tex. App.—Dallas Mar. 23, 2023, no pet. h.) (mem. op.)
(rejecting contention othat “disclosure of [party’s] confidential information” caused
“the attorney’s feesl that have been incurred [which] is evidence of damages” because
“attorney’s feeis incurred in a lawsuit are not actual damages.”).
This conclusion is further reinforced by Texas law in general regarding
attorney’s fees incurred in previous litigation. “[F]ees expended in prior litigation
generally are not recoverable as damages; fees are recoverable only when an
agreement between the parties so provides.” Martin-Simon v. Womack, 68 S.W.3d
31
793, 797 (Tex. App.—Houston [14th Dist.] 2001, pet. denied); see also Tana Oil & Gas
Corp. v. McCall, 104 S.W.3d 80, 81-82 (Tex. 2003) (attorney’s fees for defending a
different claim are not recoverable as damages as a matter of law); O’Neal v. Dale,
No. 02-20-00173-CV, 2021 Tex. App. LEXIS 466, at *28 (Tex. App.—Fokrt Worth Jan.
21, 2021, no pet.) (mem. op.) (“a party’s claim that he incurredC attorney’s fees to
defend against [another] claim is not a viable damage claim.”); Tex. Mut. Ins. Co. v.
Ray Ferguson Interests, Inc., No. 01-02-00807-CV, 2006 Tiex. App. LEXIS 2001, at
*23-24 (Tex. App.—Houston [1st Dist.] Mar. 16, 2006, pet. denied) (mem. op.)
(“financial loss due to time spent by [party] on litigation matters” in another case was
not, as a matter of law, recoverable). And the law is clear that “[a] party relying on
assertions of non-recoverable damages alolne, such as attorney’s fees and expenses
sustained in defending a lawsuit . . . Mhas presented a legal barrier to any recovery.”
Woodhaven Partners Ltd. v. Shamoun & Norman, L.L.P., 422 S.W.3d 821, 837 (Tex.
App.—Dallas 2014, no pet.). i
Pohl has argued that he is entitled to recover attorney’s fees based on an
exception to the generoal rule based on the “tort of another,” which applies to one who
has been forced byl the tort of another to protect his or her interests by bringing or
defending an aiction against a third person. See Naschke v. Gulf Coast Conference, 187
S.W.3d 653, 655 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) (quoting
Restatement (Second) Of Torts § 914 (1979)). When applicable and accepted, that
exception would allow the person forced to bring or defend an action is entitled to
recover reasonable compensation for attorney fees incurred in the earlier action. But
32
that exception has never been recognized by the Texas Supreme Court38 and has been
flatly rejected by the Fourteenth Court of Appeals.39 See Naschke, 187 S.W.3d at 655
(“Because we are bound to follow the existing laws of the State, we are not at liberty
to adopt a theory of recovery that has not been enacted by the Legislatukre or adopted
by the Texas Supreme Court.”). C
The First Court of Appeals has not specifically held whether the “tort of
another” exception is viable. But it has stated that becaiuse this exception is an
equitable doctrine it can only apply when the plaintiff is “wholly innocent” of any
wrongdoing. See Per-Se Techs., Inc. v. Sybase, Inc., No. 01-03-01293-CV, 2005 Tex.
App. LEXIS 5096, at *24 (Tex. App.—Houston [1st Dist.] June 30, 2005, no pet.) (mem.
op.). Not only did the jury find that Pohl wlas not wholly innocent of any wrongdoing,
but Pohl stipulated in post-trial briefiMng that he was not seeking equitable remedies.
Because attorney’s fees are not recoverable damages under TUTSA, the Court
erred when it submitted Questiion 7(1) to the jury and that error was harmful because
it permitted the jury to find an improper element of damages, which the Court
awarded to Pohl in thoe judgment.
38 See Akin, Gum f ip, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d 106, 119
(Tex. 2009) (“o[W]e need not and do not address whether the exception set out in section 914(2) of the
Second Restnatement should be adopted as Texas law.”).
39 Other intermediate courts of appeals have likewise refused to adopt the tort of another doctrine.
Riner v. Neumann, 353 S.W.3d 312, 323 (Tex. App.—Dallas 2011, no pet.) (“Given the supreme court’s
faithful adherence to the American Rule, and its strong statement in Tony Gullo that trial courts lack
the inherent authority to award fees contrary to the Rule, we decline to adopt a new equitable
exception to the Rule.”); TOKA Gen. Contractors v. Wm. Rigg Co., No. 04-12-00474-CV, 2014 Tex. App.
LEXIS 3776, at *20 (Tex. App.—San Antonio Apr. 9, 2014, pet. denied) (mem. op.) (collecting cases);
Per-Se Techs., Inc. v. Sybase, Inc., No. 01-03-01293-CV, 2005 Tex. App. LEXIS 5096, at *24 (Tex.
App.—Houston [1st Dist.] June 30, 2005, no pet.) (mem. op.) (collecting cases).
33
Moreover, expert or lay opinion testimony is only permitted if it will be helpful
to determining a fact in issue. TEX. R. EVID. 701, 702. Because attorney’s fees as
damages are not a recoverable under TUTSA, any testimony from Pohl or his expert,
John Zavitsanos, about the attorney’s fees incurred in the underlyking barratry
proceedings is irrelevant and should have been excluded. See EnbCridge Pipelines (E.
Tex.) L.P. v. Avinger Timber, LLC, 386 S.W.3d 256, 262 (Tex. 2012) (trial court must
act as an evidentiary gatekeeper by screening out irrelevaint testimony). That error
was harmful because the jury relied on testimony from Pohl and Zavitsanos to find
damages for the attorney’s fee incurred un prior litigation.
XIV. Factually insufficient evidence supports the jury’s answer
to Questions 7(2) and (3).
Factually insufficient evidence saupports the jury’s answer to Question 7(2),
which found $250,000 in damages for the “price that a willing buyer and a willing
seller would have agreed on, at ethe time of the misappropriation, as a fair price for
Kassab’s [alleged] use of t
hef trade secret(s).”40 This question asked about “market
value,” which means “the price the property will bring when offered for sale by one
who desires to sell, but is not obliged to sell, and is bought by one who desires to buy,
but is under no inecessity of buying.” City of Harlingen v. Estate of Sharboneau, 48
SW.3d 177,o 182 (Tex. 2001). As the purported owner of the property, Pohl could only
testify (if he had been properly designated, which he wasn’t)41 about “market value,
not intrinsic value or some speculative value of the property.” Id. Yet, Pohl presented
40 Verdict, Question 7(2).
41 As explained next, Pohl was erroneously allowed to testify on this issue over Kassab’s objection.
34
no evidence of the “market value” of the purportedly trade secret information. Rather,
he only testified as to the “intrinsic value” or “actual value” of the information, which
is not market value. See City of Harlingen, 48 SW.3d at 182.
Presumably, the jury improperly adopted the $250,000 figure fkrom evidence
that Kassab and Montague paid Favre a retainer to act as an expeCrt in the barratry
litigation. Even if the jury could reasonably conclude that the $250,000 figure was a
“purchase price” for Pohl’s alleged trade secrets, that wouldi be considered an “actual
value” and not “market value,” which was the theory submitted to the jury. Pike v.
Tex. EMC Mgmt., LLC, 610 S.W.3d 763, 784 n.27 (Tex. 2020) (distinguishing between
“market value” and “actual value” and noting that “evidence of purchase price alone
cannot establish market value” and alpproving cases rendering take-nothing
judgments “where purchase price Mwas only evidence of damages presented”).
“[P]urchase price is merely a starting point for calculating actual value,” not market
value. See id. at 784. Further,i “one sale [is] not sufficient to fix a fair market value.”
InterFirst Bank Dall., N.A. v. Risser, 739 S.W.2d 882, 891 (Tex. App.—Texarkana
1987, no writ); Mo., Ko. & T. R. Co. v. Moss, 135 S.W. 626, 627 (Tex. Civ. App. 1911,
no writ) (“Evidencel of a single sale is admissible, but not alone sufficient to establish
market value.”i). There was insufficient evidence to support the jury’s finding on the
market value of the purported trade secrets.
Finally, there was insufficient evidence to support the jury’s finding in
Question 7(3) of $200,000 for the “value of the development costs that Kassab avoided
35
by [allegedly] misappropriating Pohl’s trade secret(s).”42 While damages in trade-
secret cases can be flexible and imaginative, Pohl did not proffer sufficient evidence
for the jury to have made a just and reasonable inference regarding development costs
saved by Kassab, if any. See Szczepanik v. First S. Tr. Co., 883 S.W.2d 6k48, 649 (Tex.
1994) (amount of damages must “be shown by competent evidencCe with reasonable
certainty.”). Instead, the jury was left to speculate or guess about the amount Kassab
saved in development costs based on the alleged misapproipriation, which does not
constitute legally sufficient evidence. See Pike v. Tex. EMC Mgmt., LLC, 610 S.W.3d
763, 782 (Tex. 2020) (plaintiff in misappropriation of trade secrets case cannot
“leav[e] the jury to speculate on the amount [the defendant] saved” by engaging in
the alleged misappropriation); Sw. Energyl, 491 S.W.3d at 712 (trade secret damages
“cannot be based on sheer speculationM.”).
XV. The Court erred by allowing Pohl to testify on the
purported value eof the trade secrets because the property
owner rule doesi not apply, and Pohl was not designated to
testify on thatf issue.
The trial court overruled Kassab’s objection to Pohl testifying about the value
of the purported trade secrets. Texas Rule of Evidence 701 has been interpreted to
include a “propeirty owner rule,” which holds that “a property owner is qualified to
testify to thoe value of his property even if he is not an expert and would not be
qualified to testify to the value of other property.” Accurate Precision Plating, LLC v.
Guerrero, No. 01-14-00706-CV, 2015 Tex. App. LEXIS 12034, at *7 (Tex. App.—
Houston [1st Dist.] Nov. 24, 2015, pet. denied) (mem. op.).
42 Verdict, Question 7(3).
36
However, the property owner rule “does not extend to matters that are of a
technical or specialized nature.” Jatex Oil & Gas Expl. L.P. v. Nadel & Gussman
Permian, L.L.C., 629 S.W.3d 397, 407 (Tex. App.—Eastland 2020, no pet.). The value
of a trade secret is the kind of technical or specialized matter that “is nkot a matter of
common knowledge.” Arkoma Basin Expl. Co. v. FMF Assocs. C1990-A, Ltd., 249
S.W.3d 380, 388 (Tex. 2008). Accordingly, the property owner rule does not apply to
something as specialized and technical as the value of a triade secret. See Jatex Oil,
629 S.W.3d at 407 (property owner could not testify to value of mineral interest);
Accurate Precision, 2015 Tex. App. LEXIS 12034, at *9 (owner of business could not
testify to lost profits and revenues).
Moreover, the Court erred by allowilng Pohl to testify on the market value of
the trade secret because Pohl was onlyM designated to opine on “the reasonable value
of the [purported trade secrets] at the time it was [allegedly] converted and/or
misappropriated.”43 Pohl madie clear in his deposition that he was testifying about
“the intrinsic value of the [purportedly] stolen property,” claiming it was worth
“between” $250,000 aond $6 million.44 But the “the property owner's testimony must
be based on marklet value, not intrinsic value or some speculative value of the
property.” Accuirate Precision, 2015 Tex. App. LEXIS 12034, at *7. Because Pohl was
not designated to testify about the market value of the alleged trade secret, his
testimony should have been excluded.
43 Exhibit 8, Pohl’s Second Amended Expert Designations, at 7.
44 Exhibit 9, December 2021 Pohl Deposition, at 117.
37
XVI. Factually insufficient evidence supports the jury’s finding
that “the misappropriation of Pohl’s trade secret(s) by
Kassab was willful and malicious” (Question 8) based on
“clear and convincing evidence” (Question 17).
There was insufficient evidence to support the jury’s answer to Question 8,
which found that Kassab engaged in “willful and malicious” misapperopriation. For
the jury to reach that conclusion, it was required to find that Kassab’s
misappropriation “result[ed] from the conscious disregard of tthe rights of the owner
of the trade secret.”45 Ten of the jurors found that Kassab engaged in “willful and
malicious” misappropriation by “clear and convinceing evidence,” which the Court
defined to mean “the measure or degree of pruoof that produces a firm belief or
conviction of the truth of the allegations sought to be established.”46 In addition to
the nonunanimous finding being insuafficient to support an award of exemplary
damages,47 insufficient evidence supports a finding of clear and convincing evidence
of malice. e
To decide whether thefre is sufficient evidence supporting the jury's finding
that Kassab specifically intended to cause substantial injury or harm to Pohl, the
Court is required to “analyze the evidence supporting the malice of each defendant .
. . instead of groiup[ing] them together.” Horizon Health Corp. v. Acadia Healthcare
Co., 520 S.Wo.3d 848, 867 (Tex. 2017). Further, “evidence of the tort itself, with little
45 Verdict, Question 8.
46 Verdict, Question 17 and Certificate.
47 Kassab detailed in his objection to the judgment and Motion for Judgment Notwithstanding the
Verdict why Pohl is not, as a matter of law, entitled to exemplary damages.
38
more,” is insufficient to support a jury’s finding of malice in a theft of trade secrets
case. See id.; Safeshred, Inc. v. Martinez, 365 S.W.3d 655, 665 (Tex. 2012) (“Conduct
which was necessary merely for liability cannot serve as a basis for punitive
damages.”). k
The only evidence Pohl offered of Kassab’s alleged maliceC was: (1) Kassab’s
filing a grievance against Pohl and copying news outlets and the District Attorney
(because Pohl committed conduct that was criminal and a miatter of public concern);
and (2) testimony that lawyer files are generally confidential. But this evidence does
not prove that Kassab knew – at the time he received the information from Favre and
Precision– that the information was owned by Pohl (as opposed to Precision or the
clients) as his trade secret. l
Regarding the attorney-client cMontracts, Kassab testified that the information
is owned by the client, not the lawyer, and not confidential. And Kassab testified that
he saw documents certifying thiat the list of Pohl’s actual, potential or rejected clients
were owned by Precision, and that Favre made that same representation to him.
Moreover, there waso uncontroverted evidence that the information was freely
transferred to Favlre when he purchased Precision in May 2015 and disclosed to
various partiesi in the Mississippi litigation without a protective order or any stamp
of “confidential” or “trade secret.” Thus, insufficient evidence supported the jury’s
finding that Kassab consciously disregarded the rights of the owner of the trade secret
because the uncontroverted evidence established that Kassab believed the
information was never owned by Pohl and was in the public domain.
39
The evidence is further insufficient because Pohl “adduced no evidence that
[Kassab] caused [Pohl] an injury independent of and qualitatively different than the
misappropriation itself.” See Eagle Oil & Gas Co. v. Shale Expl., LLC, 549 S.W.3d
256, 285 (Tex. App.—Houston [1st Dist.] 2018, pet. dism'd). The ekvidence also
demonstrated that Kassab had an obligation to notify Pohl’s formCer clients and the
State Bar of Pohl’s unlawful conduct, and that Kassab had a right to represent Pohl’s
former clients in lawsuits and grievance proceedings againsit Pohl. “[L]egally justified
conduct” is “simply not probative to either establish a violation or malice.” Safeshred,
, 365 S.W.3d at 665. “[Kassab’s alleged] intentional misappropriation and misuse of
[Pohl’s] trade secrets is not legally sufficient evidence of malice.” See Eagle Oil, 549
S.W.3d at 285. “If it were, exemplary damlages would be recoverable as a matter of
course in every misappropriation casMe, rather than the exceptional case involving
egregious misconduct and injury.” Id.
XVII. Factually insuffiicient evidence supports the jury’s finding
of exemplary dfamages of $3 million.
Because the jury’s finding of actual malice was non-unanimous and supported
by insufficient evidence, no exemplary damages should have been awarded.
Moreover, becauise Pohl is not entitled to attorney’s fees as damages under TUTSA,
the actual looss should have been, at most, $250,000. TUTSA provides that “the fact
finder may award exemplary damages in an amount not exceeding twice any award”
permitted as damages for misappropriation. See TEX. CIV. PRAC. & REM. CODE §
134A.004. Therefore, the maximum exemplary damages can only be $500,000. See id.
But in addition to those limitations, the $3,000,000 exemplary damage finding is
40
supported by insufficient evidence.
The jury was instructed to consider various factors when awarding exemplary
damages as a “punishment,” none of which support the jury’s finding:
• The alleged harm to Pohl was economic rather than physical.
• Because the character of the conduct involved was primaCrily limited
to alleged misappropriation of information that Kassab testified did
not know belonged to Pohl, the degree of Kassaib’s culpability was
highly questionable.
• The situation does not offend the public sense of justice. To the
contrary, the evidence demonstrated that Kassab was promoting
justice by exposing Pohl’s unlawlful conduct to barratry victims and
the State Bar, which KassaMb had a legal obligation to do.
• No evidence was presented to the jury about Kassab’s net worth.
The jury’s award of puinitive damages was so against the great weight and
preponderance of the evidence as to be manifestly unjust. Rather than consider the
factors, the jury probaobly considered improper items of alleged damages in assessing
exemplary damagels, and inexplicably appealed to passion or prejudice rather than
reasonable judigment. Accordingly, a new trial or, alternatively, a remittitur of the
entire exemplary damage award, is appropriate.
XVIII. The Court erred in submitting the conspiracy claim
(Question 15) because that claim is pre-empted by TUTSA.
TUTSA provides that it “displaces conflicting tort, restitutionary, and other
law of this state providing civil remedies for misappropriation of a trade secret.” TEX.
41
CIV. PRAC. & REM. CODE §134A.007. A conspiracy claim is among the other civil
remedies for misappropriation of trade secrets that is preempted.
In Reynolds v. Sanchez Oil & Gas Corp., No. 01-18-00940-CV, 2023 Tex. App.
LEXIS 8903 (Tex. App.—Houston [1st Dist.] Nov. 30, 2023, no pet. h.)k, the plaintiff
sued for misappropriation of trade secrets and aiding and abetting Cbreach of fiduciary
duty. Id. at *7-8. The court of appeals concluded that the aiding and abetting claim
was “primarily based on the individual appellants’ misapproipriation of trade secrets”
and “provide[ed] remedies for the underlying misconduct of misappropriation of trade
secrets.” Id. at 47. “Under the plain language of TUTSA, these claims conflict with
civil remedies for misappropriation of a trade secret.” Id. at *47-48. Therefore,
“TUTSA preempts these claims to the extlent they are based on appellants’ alleged
misappropriation of trade secrets.” IdM. at *48.
Pohl’s conspiracy claim, like the aiding and abetting claim in Reynolds, is
based entirely on Kassab’s alleiged misappropriation of trade secrets. The conspiracy
question asked, “[r]egarding the conduct you found in answer to Question 2 [which
asked “[d]id any of theo parties listed below misappropriate Pohl’s trade secret?”], was
Kassab part of a clonspiracy that damaged Pohl with any of those named below?”48
Because Pohl’si conspiracy claim is “primarily based on” alleged misappropriation of
trade secrets, it is preempted. See Reynolds, 2023 Tex. App. LEXIS 3067, at *47-48;
see also VEST Safety Med. Servs., LLC v. Arbor Env't, LLC, No. 4:20-CV-0812, 2022
U.S. Dist. LEXIS 127285, at *10 (S.D. Tex. 2022) (“the weight of authority from
48 Verdict, Question 15.
42
district courts within the Fifth Circuit … [demonstrate a] conspiracy claim is
preempted by TUTSA.”).
Because the conspiracy claim was preempted, the Court should have dismissed
that claim on summary judgment and not have allowed Pohl to submkit that claim.
This error was harmful because it improperly allowed Pohl to confClate the conduct of
Kassab with other alleged co-conspirators so that the jury was required to speculate
whether Kassab directly or indirectly misappropriated any oif Pohl’s trade secrets and
whether Pohl proved the elements of misappropriation for each defendant.
XIX. The Court erred by denying Kassab’s designation of
responsible third parties, incluuding George W. Shepherd,
Donalda Pohl, Edgar Jaimes, Ken Talley and Magdalena
Santana.
A trial court is required to grant aleave to designate responsible third parties if
a motion is timely filed that pleads sufficient facts concerning the alleged
responsibility of the persons to ebe designated. See In re YRC Inc., 646 S.W.3d 805,
809 (Tex. 2022). Kassab timfely moved to designate George W. Shepherd, Donalda
Pohl, Edgar Jaimes, Ken Talley, and Magdalena Santana as responsible third parties
and pled sufficient facts demonstrating their responsibility. The Court’s denial of
Kassab’s motioni for leave was an abuse of discretion.
Kassoab alleged that Shepherd knew that Walker, Seymour and Ladner had
sold Precision to Favre, and in that sale transferred Precision’s assets to Favre,
including the information that Pohl claims are his trade secrets. Kassab also alleged
that Shepherd knew that Favre had given documents to third parties, including
Kassab and others, before settling the Mississippi litigation, but failed to protect Pohl
43
by ensuring that all proprietary information was gathered from all third parties and
returned to Pohl or destroyed as part of the any settlement agreement, if Pohl owned
and/or desired to safeguard that property.
Kassab alleged that if Donalda, Jaimes, Talley, or Santana had akn agreement
and/or duty to safeguard any property allegedly owned by Pohl, thCey are responsible
for failing to safeguard the property because they routinely placed Pohl’s alleged
trade secrets and documents in the public domain. Thiey did so by circulating
Precision’s marketing lists and other documents allegedly belonging to Pohl to
numerous third parties rather than safeguard these documents and lists.
The Court erred when it refused to grant Kassab’s motion for leave to designate
these individuals as responsible third partlies. “The erroneous denial of a motion for
leave to designate a responsible third Mparty skews the proceedings, potentially affects
the litigation's outcome, and compromises the defense in ways unlikely to be apparent
in the appellate record.” Sancihez v. Castillo, No. 05-18-01033-CV, 2020 Tex. App.
LEXIS 1867, at *15 (Tex. App.—Dallas Mar. 4, 2020, no pet.) (mem. op.). Therefore,
a new trial is warrantoed. See id.
XX. The Clourt erred by denying Kassab’s motion to abate this
casie pending resolution of the related litigation that is
ciurrently pending against Pohl for civil barratry.
The Court erroneously denied49 Kassab’s motion to abate this case pending
resolution of Cheatham v. Pohl, No. 01-20-00046-CV, 2022 Tex. App. LEXIS 6528
(Tex. App.—Houston [1st Dist.] Aug. 30, 2022, pet. filed) (mem. op.). That related
49 See September 23, 2022 Order Denying Motion to Abate.
44
litigation is currently pending against Pohl for civil barratry. The resolution of that
case would have a substantial impact on the claims in this case. In his motion to
abate, Kassab explained that abatement was appropriate for two reasons. First, the
outcome of Cheatham could alter the course of this litigation because ifk it resulted in
a judgment against Pohl for barratry, Pohl could not have argued thCat all the barratry
claims brought against him were frivolous. Second, Pohl sought from Kassab
damages in this case that included attorney’s fees fori defending against the
Cheatham case, which was still ongoing. But if Pohl had been found liable for barratry
in Cheatham, then he would have been required to pay attorney’s fees to the plaintiffs
in that case. The Court’s erroneous denial of the motion to abate was harmful because
it allowed Pohl to take the positions thatl he did, which substantially altered the
course of trial and the evidence preseMnted.
XXI. The Court erred by allowing Pohl to assert affirmative
claims against Keassab but then withhold relevant and
material inforimation based on purported claims of
privilege. f
The Court also erred when it denied Kassab’s motion to compel discovery from
Pohl based on the doctrine of offensive use (or, at minimum, conducting an in camera
review of the iniformation).50 On a related note, the Court erred when it overruled
Kassab’s obojection to Pohl’s calling of Shepherd and using redacted billing records at
trial.
Kassab’s motion to compel demonstrated that Pohl could not sue Kassab for
affirmative relief claiming Kassab stole his purported trade secrets and caused clients
50 November 28, 2022 Order Denying Motion to Compel.
45
to bring barratry claims against Pohl, while at the same time claiming privilege to
deny access to discovery that would be relevant to those claims. See Ginsberg v. Fifth
Court of Appeals, 686 S.W.2d 105, 108 (Tex. 1985).
Pohl cannot deny Kassab outcome determinative information thakt has bearing
on Pohl’s ability to recover, such as information that would demonCstrate that Pohl’s
claims are barred by limitations, illegality and the unlawful acts doctrine, or
demonstrate that Pohl is not the owner of the purported tradie secret information. See
id. at 106 (plaintiff could not assert privilege to protect against the disclosure of
information that was “materially relevant to, and possibly validated, the statute of
limitations defenses asserted by” the defendant). But that is exactly what Pohl did,
claiming privilege when Kassab sought thlis information from Pohl’s counsel in the
Mississippi litigation, Billy ShepherdM.
Pohl also cannot deny Kassab the proof underlying Pohl’s claim for
reimbursement of attorney’s feies incurred in previous litigation and require the jury
to simply trust that the attorney’s fees were actually incurred, reasonable and
necessary. See In re Noat'l Lloyds Ins. Co., 532 S.W.3d 794, 807 (Tex. 2017) (“party
may waive its workl-product privilege through offensive use—perhaps by relying on
its billing reciords … to recover its own attorney fees.”); In re Beirne, Maynard
& Parsons, L.L.P., 260 S.W.3d 229, 231 (Tex. App.—Texarkana 2008, no pet.)
(attorney “cannot deny [opposing] party the right to review documents supporting
[his or her] claim for reimbursement.”). But Pohl did that, refusing to produce
unredacted billing invoices.
46
Therefore, the Court should have ordered that Pohl produce complete un-
redacted versions of the invoices that Pohl claimed support his damages, along with
all underlying documentation, including communications and draft documents. The
Court also should have found that Pohl waived any privilege betwkeen him and
Shepard regarding: (1) when Pohl discovered any alleged misapproCpriation; (2) Pohl’s
efforts to keep the information secret; and (3) Pohl’s unlawful barratry. The Court’s
failure to do so was harmful because it erroneously excludeid information relevant to
Pohl’s ability to recover, such as information that would demonstrate that Pohl’s
claims are barred by limitations, illegality and the unlawful acts doctrine, or
demonstrate that Pohl is not the owner of the purported trade secret information.
The un-redacted billing records also mayl have demonstrated that the fees Pohl
sought were not reasonable or necessMary.
Because Pohl did not produce unredacted billing records, the Court should
have sustained Kassab’s objecition to Pohl’s billing record exhibits when Pohl offered
them trial. See Remington Arms Co. v. Caldwell, 850 S.W.2d 167, 170 (Tex. 1993)
(“the trial court has thoe power during trial to sanction nondisclosure of information”
by excluding it frolm being used). The Court also should not have allowed Shepherd
or Zavitsanos ito testify over Kassab’s objection. The Court’s action was harmful
because it allowed Pohl to use the unredacted billing records, which the jury
undoubtedly relied on when awarding Pohl attorney’s fees, and allowed Shepherd and
Zavitsanos to testify based on those records.
47
XXII. The Court erred by dismissing Kassab’s counterclaims for
civil barratry.
The Court erred when it granted Pohl’s traditional motion for summary
judgment on Kassab’s counterclaims for civil barratry t pursuant to Texas
Government Code § 82.0651. Pohl made four arguments in supporet of his motion,
none of which withstand scrutiny. 
First, Pohl sought to dismiss the counterclaims based otn res judicata. But that
doctrine does not apply if facts change and the relationship between the parties has
been altered. See Marino v. State Farm Fire & Cas. Iens. Co., 787 S.W.2d 948, 949-50
(Tex. 1990). That is what occurred here. Before thuere was a final judgment dismissing
the clients’ civil barratry claims based on limitations, Pohl sued Kassab arising from
the same transaction where the barratary occurred. That act allowed the clients to
assign the barratry claims to Kassab to be brought as counterclaims in this action,
thus allowing Section 16.069 of ethe Texas Civil Practice & Remedies Code to revive
the otherwise time-barred bafrratry claims. Because both the factual circumstances
and the relationship between the parties changed, res judicata did not apply.
Second, Pohl argued that the claims were barred by limitations. But
limitations is toilled on these claims pursuant to Section 16.069 because they arise
out of the soame transaction or occurrence that is the basis of Pohl’s action and were
filed within 30 days from the date on which Kassab was required to answer.
Third, Pohl argued that the clients’ assignments of barratry claims against him
are invalid, either as a matter of law or for purported non-compliance with the
Disciplinary Rules. Regardless, the law is clear that technical non-compliance with
48
the Disciplinary Rules is insufficient to void otherwise valid contracts like the
Assignments. Pohl’s policy arguments about why Section 16.069 should not apply
here fail.
Fourth, Pohl argued that the assignments are not invalid, violatek public policy,
and should not be enforced. As explained in Kassab’s motion, PohlC should have been
estopped from making this argument after he told other courts that the assignments
were valid. Regardless, the assignments were not invalid ais a matter of law because
a civil barratry claim is not a claim for legal malpractice or for violation of the
Deceptive Trade Practices Act, which are the only claims that cannot be assigned
under Texas law. The assignments do not violate the disciplinary rules but, even if
they did, Pohl has no standing to complain labout the violation, and Texas courts have
enforced agreements even if they contMravene the disciplinary rules.
The Court’s erroneous granting of Pohl’s motion constituted harmful error, not
only because it prevented Kaissab from pursuing those claims at trial, but also
because it impacted the evidence of barratry that Kassab could present and which
would have undoubtedoly changed the course of the trial proceedings, and it led to the
jury’s erroneous colnclusion that Pohl was not responsible for his damages.
XXIII. iInsufficient evidence supports the jury’s award of
oattorney’s fees because the testimony from Pohl’s expert
was conclusory and the invoices were heavily redacted.
Insufficient evidence supports the jury’s award of attorney’s fees because the
invoices that Pohl submitted were so heavily redacted that they amounted to no
evidence, and the testimony by Pohl’s purported attorney’s fee expert, Zavitsanos,
49
was conclusory.
“General, conclusory testimony devoid of any real substance will not support a
fee award.” Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 501
(Tex. 2019). Zavitsanos’ testimony with respect to the Arthur Andersenk51 factors was
insufficient and conclusory. Zavitsanos did not provide sufficient tCestimony as to the
time and labor required for the case, the novelty and difficulty of the questions
involved, or the skill required to perform the legal seirvice properly. Nor did
Zavitsanos provide sufficient testimony about the likelihood that the acceptance of
the employment precluded Pohl’s counsel from accepting other employment.
Zavitsanos also failed to provide sufficient testimony about the fee customarily
charged in the locality for similar legal serlvices, the time limitations imposed by the
client or by the circumstances, andM the nature and length of the professional
relationship with the client. Zavitsanos testified broadly about the experience,
reputation, and ability of thei Reynolds Frizzell law firm, but failed to do so with
respect to each of the lawyers and staff who billed the case. “[W]ithout evidence of
the factors identified ion Disciplinary Rule 1.04, the fact finder has no meaningful way
to determine if thel fees sought are in fact reasonable and necessary.” Rohrmoos, 578
51 Arthur UAndersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997) (identifying the factors
as “(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill
required to perform the legal service properly; (2) the likelihood . . . that the acceptance of the
particular employment will preclude other employment by the lawyer; (3) the fee customarily charged
in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time
limitations imposed by the client or by the circumstances; (6) the nature and length of the professional
relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers
performing the services; and (8) whether the fee is fixed or contingent on results obtained or
uncertainty of collection before the legal services have been rendered.”) (citing TEX. DISCIPLINARY R.
PROF. CONDUCT 1.04).
50
S.W.3d at 494.
The evidence on attorney’s fees is also insufficient because the billing invoices
submitted “are so heavily redacted, it is impossible to determine what tasks were
performed, when the tasks were performed, how long the tasks took tok perform, and
who performed the tasks.” THB Constr., LLC v. Holt Tex., Ltd., NoC. 05-20-00020-CV,
2022 Tex. App. LEXIS 277, at *7-8 (Tex. App.—Dallas Jan. 13, 2022, no pet. h.). Here
are a few examples: i
51
Although Zavitsanos testified regarding these invoices, she testified only about
general tasks peformed during the representaiton, and only summarily stated that
that the fees were necessary and reasonable factors. The redacted invoices provide no
additional evidence beyond Zavitsanos’ testimony due to the heavy redactions,
rendering the evidence insufficient to supyport the jury’s award. See THB Constr.,
2022 Tex. App. LEXIS 277, at *10-12 (“Haolt's heavily redacted invoices fail to identify
any work performed.”). f
Moreover, to show the reasonableness and necessity of attorney's fees, the
party seeking attorney's feOes must show the fees were incurred while suing the party
sought to be charged wipth the fees on a claim that allows recovery of the fees. Stewart
Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10 (Tex. 1991). In other words, Pohl is only
entitled to attocrney’s fees for his recoverable claim, which is the TUTSA claim. “[I]f
any attorney's fees relate solely to a claim for which such fees are unrecoverable, a
claimant must segregate recoverable from unrecoverable fees.” Tony Gullo Motors I,
L.P. v. Chapa, 212 S.W.3d 299, 313 (Tex. 2006). But here, the fee award includes
Pohl’s attorney’s fees relating to the entire case, including time incurred in relation
to the conversion claim, which is unrecoverable. “Although attorneys may testify that
52
a certain percentage of their time would have been necessary even in the absence of
the unrecoverable claim, general, conclusory testimony devoid of substance will not
support a fee award.” Desio v. Bosque, No. 05-21-00022-CV, 2022 Tex. App. LEXIS
1202, at *12 (Tex. App.—Dallas Feb. 18, 2022, no pet. h.) (mem. op.). Herke, Zavitsanos
made no attempt to explain how the discrete legal services advanceCd both recoverable
and unrecoverable claims. Because Zavitsanos’ testimony on this issue was non-
existent or conclusory, the jury’s findings were so againist the great weight and
preponderance of the evidence as to be clearly wrong and unjust.
There is also insufficient evidence to support the award of conditional appellate
fees. First, Zavitsonos was not qualified to opine on appellate fees because he did not
testify about any expertise in appellate feles. Second, the hypothetical nature of a
conditional appellate fees does not exMcuse a party from providing “opinion testimony
about the services it reasonably believes will be necessary to defend the appeal and a
reasonable hourly rate for thiose services.” Yowell v. Granite Operating Co., 620
S.W.3d 335, 354-55 (Tex. 2020). Here, Zavitsanos’ testimony about expected appellate
fees failed to comply woith this standard. Zavitsanos provided insufficient testimony
about the services lPohl’s counsel will provide to defend the appeal, or the reasonable
hourly rates fior those services. Rather, Zavitsanos provided conclusory testimony
about expected fees at the various levels of the appellate process, which is insufficient.
See KBIDC Invs., LLC v. Zuru Toys Inc., No. 05-19-00159-CV, 2020 Tex. App. LEXIS
8055, at *63-65 (Tex. App.—Dallas Oct. 9, 2020, pet. denied) (testimony that “a
reasonable fee for handling an appeal to the Dallas Court of Appeals is $30,000” and
53
“a reasonable fee for preparation of the—or responding to a petition for a request to
the Supreme Court to review an appellate court decision from the Court of Appeals
would be $10,000” was insufficient to support conditional appellate fee award);
Jimmie Luecke Children P'ship v. Droemer, No. 03-20-00096-CV, 20k22 Tex. App.
LEXIS 605, at *21 (Tex. App.—Austin Jan. 27, 2022, pet. denied) (Cmem. op.) (same).
CONCLUSION & PRAYER
For these reasons, Kassab asks the Court to grant thiis motion, vacate the final
judgment, and order a new trial.
ALEXANDER DUBOSE & JEFFERSON
/s/ Kevin Dubose
Kevin Dubose
kldubose@adjtlaw.com
aTexas State Bar No. 06150500
M1844 Harvard Street
 Houston, Texas 77008
Phone (713) 523-0667
e Facsimile (713) 522-4553
f FOGLER, BRAR, O’NEIL & GRAY, LLP
/s/ Murray Fogler
o Murray Fogler
mfogler@foglerbrar.com
l Texas State Bar No. 07207300
i 909 Fannin, Suite 1640
i Houston, Texas 77002
o (713) 481-1010
(713) 574-3224 (Fax)
THE KASSAB LAW FIRM
/s/ David Eric Kassab
Lance Christopher Kassab
Texas State Bar No. 00794070
David Eric Kassab
54
Texas State Bar No. 24071351
1214 Elgin Street
Houston, Texas 77004
Telephone: (713) 522-7400
E-service: eserve@kassab.law
ATTORNEYS FOR KASSAB DEFEN k DANTS
CERTIFICATE OF SERVICE t 
I certify that this document has been forwarded to all tparties pursuant to the
Texas Rules of Civil Procedure on January 19, 2024. i
/s/ David Eric Kassab
David eEric Kassab
55
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
David Kassab
Bar No. 24071351
david@kassab.law r
Envelope ID: 83597613
Filing Code Description: No Fee Documents
Filing Description: THE KASSAB DEFS MOTION FOR JUDGtMENT NOT
WITHSTANDING THE VERDICT AND TO DISREGARD JUiRY FINDINGS
Status as of 1/19/2024 3:37 PM CST s
Case Contacts 
Name BarNumber Email g TimestampSubmitted Status
Harris Wells hwells@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT
Todd Taylor ttaylor@jandflaw.com 1/19/2024 3:31:14 PM SENT
Scott M.Favre scott@favrepa.com 1/19/2024 3:31:14 PM SENT
Lawyer Wade lawayerwade@hotmail.com 1/19/2024 3:31:14 PM SENT
Chris C.Pappas cpappas@krcl.com 1/19/2024 3:31:14 PM SENT
Non-Party Witness Billy Shepherd bshepherd@spcounsel.com 1/19/2024 3:31:14 PM SENT
Non-Party Dona Pohl c DonaLyann@yahoo.com 1/19/2024 3:31:14 PM SENT
Non-Party Edgar Jaimes f edgarsroom@gmail.com 1/19/2024 3:31:14 PM SENT
Kevin Dubose 6150500 kdubose@adjtlaw.com 1/19/2024 3:31:14 PM SENT
Thallia Malespin tmalespin@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT
Misty Davis C mdavis@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT
Marisa Barrera Cruz Hurda 24041157 mhurd@adjtlaw.com 1/19/2024 3:31:14 PM SENT
Lance Kassab eserve@kassab.law 1/19/2024 3:31:14 PM SENT
Murray Fogler o mfogler@fbfog.com 1/19/2024 3:31:14 PM SENT
Murray JFogleUr mfogler@foglerbrar.com 1/19/2024 3:31:14 PM SENT
Andrew Johnson ajohnson@thompsoncoe.com 1/19/2024 3:31:14 PM SENT
Benjamin Ritz britz@thompsoncoe.com 1/19/2024 3:31:14 PM SENT
Dale Jefferson 10607900 jefferson@mdjwlaw.com 1/19/2024 3:31:14 PM SENT
Raul Herman Suazo 24003021 suazo@mdjwlaw.com 1/19/2024 3:31:14 PM SENT
Kevin Graham Cain 24012371 cain@mdjwlaw.com 1/19/2024 3:31:14 PM SENT
D Kassab david@kassab.law 1/19/2024 3:31:14 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 1/19/2024 3:31:14 PM SENT
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
David Kassab
Bar No. 24071351
david@kassab.law r
Envelope ID: 83597613
Filing Code Description: No Fee Documents
Filing Description: THE KASSAB DEFS MOTION FOR JUDGtMENT NOT
WITHSTANDING THE VERDICT AND TO DISREGARD JUiRY FINDINGS
Status as of 1/19/2024 3:37 PM CST s
Case Contacts 
Murray J. Fogler 7207300 mfogler@foglerbgrar.com 1/19/2024 3:31:14 PM SENT
L Kassab lance@kassab.law 1/19/2024 3:31:14 PM SENT
Kelly Skelton reception@kassab.law 1/19/2024 3:31:14 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 1/19/2024 3:31:14 PM SENT
Harris Wells hwaells@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT
David Kassab c david@kassab.law 1/19/2024 3:31:14 PM SENT
Jean C.Frizzell f jfrizzell@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT
Jean C.Frizzell  jfrizzell@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT
Todd Taylor ttaylor@jandflaw.com 1/19/2024 3:31:14 PM SENT"
61,2023-09-20,LTR,Kassab,Letter to judge re final judgment,"Kassab's letter brief to Judge Christine Weems responding to Pohl's Reply filed the night before the hearing on entry of final judgment, addressing new arguments on exemplary damages, attorneys' fees, TUTSA preemption of conspiracy, and Precision's exoneration","Post-hearing letter brief filed September 20, 2023 in the 281st Judicial District Court, Harris County, Cause No. 2018-58419. Addressed to Judge Christine Weems. Pohl's Reply was filed well after working hours the evening of September 18, 2023 — the night before the September 19, 2023 hearing on entry of final judgment. This letter responds to new arguments and authorities raised in that Reply. Written by Kevin Dubose (Alexander Dubose & Jefferson LLP, Board Certified Civil Appellate Law).",JDGMT-1,N/A,Phase 5,2023-09-20_LTR_Kassab-Letter-to-Judge-re-Final-Judgment_FILED.pdf,That the Court refrain from signing Pohl's proposed final judgment and sustain Kassab's objections,"9/20/2023 3:18 PM
Kevin Dubose Marilyn Burgess - D18is4tr4ic Ht aCrlvearkr dH Satrrreise Ct ounty
kdubose@ adjtlaw.com Houston, TEenxvaes lo7p7e0 0N8o-.4 7394726 5300
By: Bonnie Lugo
(713) 523-0667 www.adjtlaw.com
Filed: 9/20/2023 3:18 PM
Board Certified Civil
Appellate Law
September 20, 2023
The Honorable Christine Weems
Judge 281st District Court
201 Caroline, 14th Floor
Houston, Texas 77002
Re: Cause No. 2018-58419; Michael A. Pohl, and Law Otffice of Michael A.
Pohl, PLLC v. Lance Christopher Kassab and Lanrcie Christopher Kassab,
P.C. D/B/A The Kassab Law Firm s
Dear Judge Weems: s
Pohl’s response to Kassab’s objections to the gproposed judgment were filed well
after working hours the night before the hearing orn entry of judgment. Because that
response raised some new arguments and authoriBties that Kassab has not had a chance to
address, we file the following letter brief to addnress some of those new matters.
A. Exemplary damages are not rercoverable because Question 17 was not
answered unanimously. M
Pohl relies on several cases noot previously addressed, and all are distinguishable for
important reasons. e
• Bruce v. Oscar Renda Cofntracting, 657 S.W.3d 453, 464 (Tex. App.—El Paso 2022, pet.
filed). In Bruce there was no Additional Certificate in which the jury was instructed to
certify whether certain jury questions were unanimous. Id. at 463. In the present case, there
was an Additionaol Certificate in which the jury failed to certify that Question 17 was
unanimous. C
• Stover v. ADM Milling Co., No. 05-17-00778-CV, 2018 Tex. App. LEXIS 10883 (Tex.
App.—Dallas Dec. 28, 2018, pet. denied) (mem. op.). In Stover there was an Additional
Certificfate, and the jury certified that the predicate question for exemplary damages
(Qunestions 15 and 16 on fraud and malice) were answered unanimously. Id. at *12. In the
prUesent case, the equivalent predicate question (Question 17 on willful and malicious
misappropriation) was not certified as unanimous.
• Bryan v. Papalia, 542 S.W.3d 676, 692–93 (Tex. App.—Houston [14th Dist.] 2017, rev.
granted, judgm’t vacated w.r.m.). In Bryan the trial court noticed an ambiguity between
the requirement that two questions be answered unanimously and the Verdict Certificate
generally stating that only ten jurors had agreed to all of the questions. It appears from the
opinion that the judge noticed this ambiguity, discussed the situation with the lawyers, and
September 20, 2023
Page 2
decided to instruct the jurors to return to the jury room and deliberate further. But there is
nothing in the opinion suggesting that the party who did not have the burden of obtaining
a unanimous verdict to obtain exemplary damages was required to object or ask that the
jury be sent back to deliberate further in order to preserve error.
The case most analogous to the present case is Redwine v. Peckinpaeugh, 535 S.W.3d
44 (Tex. App.—Tyler 2017, no pet.). Pohl erroneously attempts to dCistinguish Redwine
because it “dealt with a single cause of action giving rise to liability, [so] the certification
of non-unanimity was in conflict with an award of exemplary damages.”1 But the same is
true in this case, where the jury was asked to answer questions relatting to the single TUTSA
cause of action. Just like in Redwine, the jury’s failure to certifyi that the predicate question
of liability (Question 17) was unanimous bars the recovery of exemplary damages.
Pohl also suggests it was Kassab’s burden to eraise the issue.2 But as noted in
Redwine, “this situation does not amount to a conflicting jury finding, where a party must
object before the jury is discharged to preserve error.” Id. at 52. Rather, that burden was on
Pohl as the party with the burden of proof seeking exemplary damages. See United
Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 481 (Tex. 2017) (“A defendant has no
obligation to complain about a plaintiff's omi lission of an independent theory of recovery;
rather, the burden to secure proper findinags to support that theory of recovery is on the
plaintiff, and a plaintiff who fails to satisfy that burden waives that claim.”). See also TEX.
CIV. PRAC. & REM. CODE § 41.003(b
) f(""The claimant must prove by clear and convincing
evidence the elements of exemplary damages . . . . This burden of proof may not be
shifted to the defendant . . . ."" c(emphasis added)). Kassab was not required “to ask the
trial court to fix an error that wfould, as here, ultimately result in a judgment in its favor.”
Id. at 481.
B. Attorney’s fees in other litigation are not recoverable as actual
damagCes under TUTSA.
Pohl argues that attorney’s fees incurred in satellite litigation are recoverable “actual
losses” under TUTSA because the statute permits a “flexible and imaginative approach” to
damages.3 Buft when the Court asked Pohl if any court in any jurisdiction had ever been
flexible annd imaginative enough to award attorney’s fees in other litigation as actual
damages for a trade secret claim, the silence was telling, and should resolve this issue.
1 Reply, at 6.
2 Reply, at 7.
3 Reply, at 9.
September 20, 2023
Page 3
Pohl cites two out-of-state cases to argue that actual damages under TUTSA is not
limited to things like loss of profits, lost customers or lost market share.4 But both of those
cases authorize recovery of lost profits, fees, or commissions. See Dunsmore & Assocs. v.
D'Alessio, 409906, 2000 Conn. Super. LEXIS 114, at *36 (Super. Ct. 2000) (“the issue is
whether the defendant used the plaintiff's documents to make candidate placements that
resulted in the defendant's receipt of fees or commissions.”); World Wide Prosthetic Supply
v. Mikulsky, 640 N.W.2d 764, 770 (Wis. 2002) (concluding “actual loss” “may include lost
profits resulting from [competitor’s] manufacture and distribution otf a defective product
incorporating [plaintiff’s] trade secret”). i
Pohl argues that Texas permits the recovery of attorDney’s fees incurred in other
litigation as actual damages, relying on Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l
Dev. & Research Corp., 299 S.W.3d 106 (Tex. 2009).5 Tshat case concluded “the general
rule as to recovery of attorney's fees from an adversge party in litigation does not bar a
malpractice plaintiff from claiming damages in a mralpractice case for fees it paid its
attorneys in the underlying suit.” Id. at 119. But PBohl is not a “malpractice plaintiff,” and
is not seeking fees paid to remedy malpractice committed by Kassab in an underlying suit.
Rather, Pohl is suing Kassab to recover attorneyy’s fees that Pohl incurred defending against
barratry claims and grievances brought br iy Pohl’s former clients, who initiated the
proceedings after Kassab alerted them to Pohl’s barratry. The “malpractice plaintiff”
exception stated in Akin does not apply.
Pohl also seeks an equitablee remedy based on the tort-of-another doctrine, which
Kassab has previously briefed. Pohl does not deny that the jury found in Question 3 that
Pohl’s wrongful conduct contrfibuted to the injury. Pohl points to Question 4, in which the
jury failed to assign any percentage of responsibility to Pohl. But the issue here is not
related to causation of damages in this case. The point is simply that one without clean
hands cannot obtain ano equitable remedy, and one found to have engaged in “wrongful
conduct” does not have clean hands. See Frazier v. Havens, 102 S.W.3d 406, 414 (Tex.
App.—Houston [14lth Dist.] 2003, no pet.) (“one who seeks an equitable remedy must do
equity and comei to court with clean hands.”) Pohl cannot claim the equitable tort-of-
another exceptfiion.
4 Reply, at 10.
5 Reply, at 9.
September 20, 2023
Page 4
C. Conspiracy is preempted by TUTSA.
Pohl asserts that no Texas case law supports the proposition that conspiracy is
preempted by TUTSA. Yet the First Court of Appeals recently considered this issue and
found that TUTSA preempts a similar theory of joint liability.
In Reynolds v. Sanchez Oil & Gas Corp., No. 01-18-00940-CV, 2023 Tex. App.
LEXIS 3067 (Tex. App.—Houston [1st Dist.] May 9, 2023, no pet. th.), the plaintiff sued
for misappropriation of trade secrets and aiding and abetting breacih of fiduciary duty. Id.
at *7-8. The court of appeals concluded that the aiding and abestting claim was “primarily
based on the individual appellants’ misappropriation of tradDe secrets” and “provide[ed]
remedies for the underlying misconduct of misappropriation of trade secrets.” Id. at 47.
“Under the plain language of TUTSA, these claims csonflict with civil remedies for
misappropriation of a trade secret.” Id. Therefore, “TUgTSA preempts these claims to the
extent they are based on appellants' alleged misapprorpriation of trade secrets.” Id. at *48.
Pohl’s conspiracy claim, like the aiding and abetting claim in Reynolds, is based
entirely on Kassab’s alleged misappropriatioyn of trade secrets. The conspiracy question
asked, “[r]egarding the conduct you found inr ianswer to Question No. 2 [which asked “[d]id
any of the parties listed below misappropriate Pohl’s trade secret?”], was Kassab part of a
conspiracy that damaged Pohl with any of those named below?”6 Because Pohl’s
conspiracy claim is based on alleged omisappropriation of trade secrets, it is preempted. See
Reynolds, 2023 Tex. App. LEXIS e3067, at *47-48.
D. The jury’s findifng of no liability on Precision means no liability
on Kassab.
Pohl contends thoat Kassab waived his right to object to any alleged inconsistency in
the jury’s finding t C hat Precision was not liable for misappropriation.7 But as Pohl
acknowledges, “thelre is nothing inconsistent” about the jury’s findings.8 Rather, the issue
is whether Pohl cian legally recover against Kassab after the jury concluded that Precision,
and those assof iciated with Precision, did not misappropriate anything — meaning that
Precision eitoher owed no duty to Pohl or it breached no duty to Pohl when it provided Pohl's
alleged information to Kassab. If there was no misappropriation when the information
passed from Pohl to precision, then no one else downstream in the chain of possession
could have misappropriated the information from Pohl. Thus, the jury’s exoneration of
6 Motion, at Exhibit A, Question No. 15.
7 Reply, at 15.
8 Reply, at 16.
September 20, 2023
Page 5
Precision precludes liability against Kassab as a matter of law. Kassab was not required to
object and have the jury reconsider the issue to potentially “forfeit a winning hand.” Levine,
537 S.W.3d at 481 (a plaintiff has the burden to secure proper findings to support its theory
of recovery, not the defendant).
Respectfully submitted,
/s/Kevin Dubose t
Kevin Dubose i
kdubose@adjtlaw.scom
State Bar No. 06D150500
1844 Harvards Street
Houston, Texas 77008
Telephonge: (713) 523-2358
Facsimilre: (713) 522-4553
Mnurray Fogler
Sytate Bar No. 07207300
rmfogler@foglerbrar.com
MFOGLER BRAR O’NEIL & GRAY LLP
909 Fannin, Suite 1640
o Houston, Texas 77002
e Telephone: (713) 481-1010
Facsimile: (713) 574-3224
Lance Kassab
State Bar No. 00794070
o David Kassab
State Bar No. 24071351
l THE KASSAB LAW FIRM
i 1214 Elgin Street
f i Houston, Texas 77004
o Telephone: (713) 522-7400
eserve@kassab.law
Attorneys for Kassab Defendants
September 20, 2023
Page 6
CERTIFICATE OF SERVICE
On September 20, 2023, I electronically filed this Reply to Pohl’s Response to
Objections to Judgment Letter Brief with the Clerk of Court using the eFile.TXCourts.gov
electronic filing system which will send notification of such filing to the following:
Jean C. Frizzell
jfrizzell@reynoldsfrizzell.com
REYNOLDS FRIZZELL LLP r i
1100 Louisiana St., Suite 3500 s
Houston, Texas 77002 D
/s/Kevin Dubose
Kevin gDubose
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
David Kassab
Bar No. 24071351
david@kassab.law r
Envelope ID: 79765300
Filing Code Description: No Fee Documents
Filing Description: 9.20.2023-Ltr to Judge Weems in Responste to
Objections to Judgment Letter Brief i
Status as of 9/20/2023 3:59 PM CST s
Case Contacts 
Name BarNumber Email g TimestampSubmitted Status
Todd Taylor ttaylor@jandflaw.com 9/20/2023 3:18:40 PM SENT
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 9/20/2023 3:18:40 PM SENT
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 9/20/2023 3:18:40 PM SENT
Harris Wells hwaells@reynoldsfrizzell.com 9/20/2023 3:18:40 PM SENT
Todd Taylor ttaylor@jandflaw.com 9/20/2023 3:18:40 PM SENT
Scott M.Favre scott@favrepa.com 9/20/2023 3:18:40 PM SENT
Lawyer Wade c lawyerwade@hotmail.com 9/20/2023 3:18:40 PM SENT
Chris C.Pappas f cpappas@krcl.com 9/20/2023 3:18:40 PM SENT
Non-Party Witness Billy Shepherd  bshepherd@spcounsel.com 9/20/2023 3:18:40 PM SENT
Non-Party Dona Pohl DonaLyann@yahoo.com 9/20/2023 3:18:40 PM SENT
Non-Party Edgar Jaimes C edgarsroom@gmail.com 9/20/2023 3:18:40 PM SENT
Kevin Dubose a 6150500 kdubose@adjtlaw.com 9/20/2023 3:18:40 PM SENT
Marisa Barrera Cruz Hurd 24041157 mhurd@adjtlaw.com 9/20/2023 3:18:40 PM SENT
Lance Kassab o lance@kassab.law 9/20/2023 3:18:40 PM SENT
David KassabU david@kassab.law 9/20/2023 3:18:40 PM SENT
Nicholas Pierce nicholas@kassab.law 9/20/2023 3:18:40 PM SENT
Lance Kassab eserve@kassab.law 9/20/2023 3:18:40 PM SENT
Andrea Mendez andrea@kassab.law 9/20/2023 3:18:40 PM SENT
Murray JFogler mfogler@foglerbrar.com 9/20/2023 3:18:40 PM SENT
Murray Fogler mfogler@fbfog.com 9/20/2023 3:18:40 PM SENT
Andrew Johnson ajohnson@thompsoncoe.com 9/20/2023 3:18:40 PM SENT
Benjamin Ritz britz@thompsoncoe.com 9/20/2023 3:18:40 PM SENT
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
David Kassab
Bar No. 24071351
david@kassab.law r
Envelope ID: 79765300
Filing Code Description: No Fee Documents
Filing Description: 9.20.2023-Ltr to Judge Weems in Responste to
Objections to Judgment Letter Brief i
Status as of 9/20/2023 3:59 PM CST s
Case Contacts 
Dale Jefferson 10607900 jefferson@mdjwlgaw.com 9/20/2023 3:18:40 PM SENT
Raul Herman Suazo 24003021 suazo@mdjwlaw.com 9/20/2023 3:18:40 PM SENT
Kevin Graham Cain 24012371 cain@mdjwlaw.com 9/20/2023 3:18:40 PM SENT
D Kassab david@kassab.law 9/20/2023 3:18:40 PM SENT
Murray J. Fogler 7207300 mfaogler@foglerbrar.com 9/20/2023 3:18:40 PM SENT
Thallia Malespin tmalespin@reynoldsfrizzell.com 9/20/2023 3:18:40 PM SENT
Misty Davis mdavis@reynoldsfrizzell.com 9/20/2023 3:18:40 PM SENT
Harris Wells c hwells@reynoldsfrizzell.com 9/20/2023 3:18:40 PM SENT
L Kassab f lance@kassab.law 9/20/2023 3:18:40 PM SENT
Kelly Skelton  reception@kassab.law 9/20/2023 3:18:40 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 9/20/2023 3:18:40 PM SENT
Harris Wells C hwells@reynoldsfrizzell.com 9/20/2023 3:18:40 PM SENT
Harris Wells a hwells@reynoldsfrizzell.com 9/20/2023 3:18:40 PM SENT"
59,2023-09-15,OBJ,Kassab,Objection to proposed final judgment,"Kassab's Objections to Pohl's Proposed Final Judgment, challenging exemplary damages, recoverability of attorneys' fees as actual damages, double recovery of unjust enrichment and market value, joint and several liability based on conspiracy, and indirect misappropriation theory","Filed September 15, 2023 in the 281st Judicial District Court, Harris County, Cause No. 2018-58419. Filed 10 days after Pohl's Motion for Entry of Final Judgment, objecting to specific elements of the proposed judgment while reserving right to file subsequent motions challenging jury findings on other grounds. New appellate counsel Kevin Dubose (Alexander Dubose & Jefferson LLP) appears for Kassab.",JDGMT-1,N/A,Phase 5,2023-09-15_OBJ_Kassab-Objection-to-Pohl-Proposed-Final-Judgment_FILED.pdf,"That the Court refrain from signing Pohl's proposed final judgment and exclude: (1) exemplary damages ($3,000,000) due to non-unanimous Q17 finding, (2) attorneys' fees from barratry cases and grievances as actual damages, (3) one of the duplicative damage measures ($250,000 market value or $200,000 development costs), (4) joint and several liability based on conspiracy, and (5) all damages given Precision's exoneration breaking the indirect misappropriation chain","9/15/2023 1:38 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 79605741
By: Patricia Gonzalez
Filed: 9/15/2023 1:38 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et al § IN THE DISTRICT COURT
V. § OF HARRIS COUNTY, TEXAS
§ k
§ e
SCOTT FAVRE, et al § 281st JUDICCIAL DISTRICT
KASSAB’S OBJECTIONS TO
POHL’S PROPOSED FINAL JUDGMEtNT
Lance Christopher Kassab and Lance Christopher Kassab, P.C. d/b/a The
Kassab Law Firm (“Kassab”) file these Objection teo the proposed Final Judgment
submitted by Plaintiffs Michael Pohl and uLaw Office of Michael A. Pohl
PLLC’(“Pohl”).
INTRODUCTIOaN AND OVERVIEW
Kassab will file subsequent motions challenging the jury findings against him
on various grounds. But this filineg will be limited to objecting to elements of recovery
in Pohl’s proposed judgmenft that are legally insupportable, even with these jury
findings. Specifically:
• The judgment should not include exemplary damages because one of the
predicate ifindings for exemplary damages was not answered by the jury
unanoimously.
• The judgment should not include as actual damages attorney’s fees incurred
by Pohl in actions against him by former clients and rejected potential clients
who were victims of Pohl’s barratry. Attorney’s fees are not an element of
recoverable damages under TUTSA.
• The judgment should not include actual damages for both unjust enrichment
of Kassab and the fair market value of the alleged trade secret misappropriated
from Pohl because they are two impermissibly overlapping versions of the same
loss. Pohl should have to elect one of those remedies rather than being awarded
a double recovery. C
• The judgment should not include joint and several liabili i ty under a conspiracy
theory because conspiracy is pre-empted under TUTiSA or subject to Chapter
33’s proportionate responsibility scheme.
• The judgment should not include any actual damages for theft of trade secrets
because of the jury’s findings that Precision did not misappropriate trade
secrets. Because Kassab acquired Plohl’s alleged trade secrets from Precision,
and the jury found that PrecMision acquired the information lawfully, then
Kassab could not have misappropriated trade secrets from Pohl.
i ARGUMENT
I. The judgment should not include exemplary damages because
the predicate question to reach the exemplary damages
question was onot answered unanimously.
Question 19l was the only question in the jury charge that asked about
exemplary damiages. The predicate instruction for Question 19 said, “Answer the
following question only if you unanimously answered ‘Yes’ to Question No. 17 or
Question No. 18. Otherwise, do not answer the following question.”1
The jury did not answer Question 18.
1 Motion, Exhibit A, at Question 19.
Some members of the jury answered Question 17 ‘Yes,” finding that the
misappropriation of trade secrets was willful and malicious.2 But the answer to
Question 17 was not unanimous — contrary to Pohl’s erroneous and false assertion
that “the jury unanimously found that the misappropriation of Pohl’s ktrade secrets
by Kassab was willful and malicious.”3 C
The certificate at the end of the jury verdict makes it unmistakably clear that
the answer to Question 17 was not unanimous. First, in thie general part of the jury
certificate the jury declined to check the box indicating that “Our verdict is
unanimous,” but instead checked the box indicating that ten jurors agreed to every
answer:
The additional certificate requcired the jury to indicate whether certain liability and
damages questions were answered unanimously:
In respoUnse to that instruction, the presiding juror signed certificates indicating that
Questions 2 and 19 were unanimous. But the presiding juror conspicuously did not
2 Motion, Exhibit A, at Question 17.
3 Motion, at 3.
sign the certificate for Question 17:
Thus, the jury’s answer to Question 17 was unmistakably not iunanimous.
The jury’s failure to answer Question 17 unanimouDsliy precludes any award of
exemplary damages by both rule and statute. See TEXs. R. CIV. P. 292 (“A verdict may
be rendered awarding exemplary damages only ifr the jury was unanimous in finding
liability for and the amount of exemplary d
amages.”) (emphasis added); TEX. CIV.
PRAC. & REM. CODE § 41.003(d) (“Exempl
alry damages may be awarded only if the
jury was unanimous in regard to finding liability for and the amount of exemplary
damages.”) (emphasis added).
Texas cases have not heisitated to apply this principle articulated in both rule
and statute. See Redwine v. Peckinpaugh, 535 S.W.3d 44, 52 (Tex. App.—Tyler 2017,
no pet.) (concluding o“that the trial court erred in entering judgment awarding
exemplary damaagles” when “[d]espite [the jury] having answered the exemplary
damages quesftiion, which was predicated on its unanimously having found that [the
defendant] made multiple defamatory statements, the jury stated in the charge that
its verdict was not unanimous.”); DeAtley v. Rodriguez, 246 S.W.3d 848, 850 (Tex.
App.—Dallas 2008, no pet.) (trial court did not err in reforming a judgment where
Rule 292 required a unanimous jury finding both liability for and the amount of
exemplary damages; a non-unanimous verdict on liability was insufficient as a matter
of law to support an award of exemplary damages).
Because the predicate finding of malicious misappropriation was the only way
to get to exemplary damages, and that question was not answered unaknimously, the
judgment cannot include exemplary damages. C
II. The judgment should not include attorney’s fees incurred in
Pohl barratry cases and grievance procedures betcause they are
not recoverable under TUTSA or the Disciplinairy Rules.
A. Attorney’s fees incurred in Pohl’s barratry cases and
grievances are not recoverable undeer TUTSA.
Attorney’s fees incurred by Pohl in defenuding barratry suits and grievances
filed by his former clients and rejected potential clients are not recoverable under
TUTSA. TUTSA provides recovery for a“actual loss[es] caused by misappropriation”
and unjust enrichment. TEX. CIV. PRAC. & REM. CODE § 134A.004. The act does not
define that term, and no Texase case has attempted a definition. However, the act
requires it to “be applied anfd construed to effectuate its general purpose to make
uniform the law with respect to the subject of this chapter among states enacting it.”
TEX. CIV. PRAC. & REM. CODE § 134A.008. Thus, the Court must look to and be guided
by decisions fromi other states that have adopted the Uniform Trade Secrets Act. See
Morgan v. Colements Fluids S. Tex., Ltd., 589 S.W.3d 177, 191 n.4 (Tex. App.—Tyler
2018, no pet.) (looking to Florida law when interpreting TUTSA because “[t]he Florida
Uniform Trade Secrets Act is very similar to the TUTSA”).
Courts in other jurisdictions “have made clear that ‘actual loss’ means ‘loss of
profits, lost customers or lost market share.’” K3 Enter., Inc. v. Sasowski, No. 20-
24441-CIV-CAN, 2022 U.S. Dist. LEXIS 234206, at *10 (S.D. Fla. 2022) (concluding
reputational damage was not an “actual loss” under Florida’s Uniform Trade Secrets
Act) (citing Fin. Info. Techs., LLC v. iControl Sys., USA, LLC, 21 F.4th 1267, 1276
(11th Cir. 2021) (understanding “actual loss” in terms of lost profits); Skelectica, Inc.
v. Novatus, Inc., No. 6:13-cv-1708-Orl-40TBS, 2015 U.S. Dist. LECXIS 191940, at *9
(M.D. Fla. 2015) (“‘Actual loss’ has been defined as ‘loss of profits, lost customers or
lost market share.’”). In a case construing the Idaho Uniforim Trade Secrets Act, the
Idaho Supreme Court held that actual loss means “lost profits, lost customers, lost
market share, and similar losses,” but specifically held that “it would be an anomaly
for us to allow attorney fees to be recovered in a case like this as part of damages.”
GME, Inc. v. Carter, 917 P.2d 754, 757 (Idalho 1996). Thus, attorney’s fees that Pohl
incurred defending the barratry claimMs and grievances brought against him are not
actual losses recoverable under the statute.
This conclusion is consiistent with Texas trade secret law before TUTSA. The
Supreme Court of Texas defined recoverable losses for a trade secret claim as “the
value of the plaintiff’so lost profits, the defendant’s actual profits from the use of the
secret, the value al reasonably prudent investor would have paid for the trade secret,
the developmient costs the defendant avoided by the misappropriation, and a
reasonable royalty.” Sw. Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 710–11
(Tex. 2016); see also Carbo Ceramics, Inc. v. Keefe, 166 F. App'x 714, 722-23 (5th Cir.
2006) (“In an action for trade secret misappropriation, the plaintiff may recover
actual damages based on either the value of what has been lost by the plaintiff or
the value of what has been gained by the defendant. … The value of what has been
lost by the plaintiff is usually measured by lost profits.”) (applying Texas law)
(emphasis added). No Texas court has ever allowed attorneys’ fees in other cases to
be recovered as actual damages in a trade secret claim. In fact, at leakst one recent
Texas court has concluded the opposite in dismissing a TUTSA Cclaim. See Lacore
Enters., LLC v. Angles, No. 05-21-00798-CV, 2023 Tex. App. LEXIS 1926, at *32-33
(Tex. App.—Dallas Mar. 23, 2023, no pet. h.) (mem. op.) (irejecting contention that
“disclosure of [party’s] confidential information” caused “the attorney’s fees that have
been incurred [which] is evidence of damages” because “attorney’s fees incurred in a
lawsuit are not actual damages.”).
This conclusion is further reinforceld by Texas law regarding attorney’s fees
incurred in previous litigation. “[F]eeMs expended in prior litigation generally are not
recoverable as damages; fees are recoverable only when an agreement between the
parties so provides.” Martin-Siimon v. Womack, 68 S.W.3d 793, 797 (Tex. App.—
Houston [14th Dist.] 2001, pet. denied); see also Tana Oil & Gas Corp. v. McCall, 104
S.W.3d 80, 81-82 (Texo. 2003) (attorney’s fees for defending a different claim are not
recoverable as damlages as a matter of law); O'Neal v. Dale, No. 02-20-00173-CV, 2021
Tex. App. LEXiIS 466, at *28 (Tex. App.—Fort Worth Jan. 21, 2021, no pet.) (mem.
op.) (“a party's claim that he incurred attorney’s fees to defend against [another] claim
is not a viable damage claim.”); Tex. Mut. Ins. Co. v. Ray Ferguson Interests, Inc., No.
01-02-00807-CV, 2006 Tex. App. LEXIS 2001, at *23-24 (Tex. App.—Houston [1st
Dist.] Mar. 16, 2006, pet. denied) (mem. op.) (“financial loss due to time spent by
[party] on litigation matters” in another case was not, as a matter of law, recoverable).
And the law is clear that “[a] party relying on assertions of non-recoverable damages
alone, such as attorney’s fees and expenses sustained in defending a lawsuit . . . has
presented a legal barrier to any recovery.” Woodhaven Partners Ltd. vk. Shamoun &
Norman, L.L.P., 422 S.W.3d 821, 837 (Tex. App.—Dallas 2014, no Cpet.).
Pohl may argue that he is entitled to recover attorney’s fees based on an
exception to the general rule based on the “tort of another,” wihich provides that “[o]ne
who through the tort of another has been required to act in the protection of his
interests by bringing or defending an action against a third person is entitled to
recover reasonable compensation for loss of time, attorney fees and other
expenditures thereby suffered or incurredl in the earlier action.” Naschke v. Gulf
Coast Conference, 187 S.W.3d 653, 6M55 (Tex. App.—Houston [14th Dist.] 2006, pet.
denied) (quoting RESTATEMENT (SECOND) OF TORTS § 914 (1979)). But that exception
has never been embraced by tihe Texas Supreme Court4 and has been flatly rejected
by the Fourteenth Court of Appeals.5 See Naschke, 187 S.W.3d at 655 (“Because we
are bound to follow thoe existing laws of the State, we are not at liberty to adopt a
4 See Akin, Gum f pi, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d 106, 119
(Tex. 2009) (“o[W]e need not and do not address whether the exception set out in section 914(2) of the
Second Restnatement should be adopted as Texas law.”).
5 Other intermediate courts of appeals have likewise refused to adopt the tort of another doctrine.
Riner v. Neumann, 353 S.W.3d 312, 323 (Tex. App.—Dallas 2011, no pet.) (“Given the supreme court’s
faithful adherence to the American Rule, and its strong statement in Tony Gullo that trial courts lack
the inherent authority to award fees contrary to the Rule, we decline to adopt a new equitable
exception to the Rule.”); TOKA Gen. Contractors v. Wm. Rigg Co., No. 04-12-00474-CV, 2014 Tex. App.
LEXIS 3776, at *20 (Tex. App.—San Antonio Apr. 9, 2014, pet. denied) (mem. op.) (collecting cases);
Per-Se Techs., Inc. v. Sybase, Inc., No. 01-03-01293-CV, 2005 Tex. App. LEXIS 5096, at *24 (Tex.
App.—Houston [1st Dist.] June 30, 2005, no pet.) (mem. op.) (collecting cases).
theory of recovery that has not been enacted by the Legislature or adopted by the
Texas Supreme Court.”).
The First Court of Appeals has not specifically held whether the “tort of
another” exception is viable. But it has stated that because this exkception is an
equitable doctrine it can only apply when the plaintiff is “whollyC innocent” of any
wrongdoing. See Per-Se Techs., Inc. v. Sybase, Inc., No. 01-03-01293-CV, 2005 Tex.
App. LEXIS 5096, at *24 (Tex. App.—Houston [1st Dist.]i June 30, 2005, no pet.)
(mem. op.); see also Brannan Paving GP, LLC v. Pavement Markings, Inc., 446 S.W.3d
14, 27 (Tex. App.—Corpus Christi 2013, pet. denied) (referring to the “tort of another
exception” as an “equitable exception” to the general rule).
Here, the jury concluded in responsel to Question 3 that the “wrongful conduct
of Pohl . . . contribute[d] to the injury.M”6 Because Pohl is not a wholly innocent party,
he may not invoke the “tort of another exception” to the general rule even if it is a
viable doctrine under Texas laiw. See Per-Se Techs., 2005 Tex. App. LEXIS 5096, at
*24; see also Pacesetter Pools, Inc. v. Pierce Homes, Inc., 86 S.W.3d 827, 834 (Tex.
App.—Austin 2002, noo pet.) (“[B]ecause the jury found that Allcox's damages were
caused by the neglligent conduct of both Pierce Homes and Pacesetter, equitable
principles do niot allow Pierce Homes to recover its previously incurred attorney’s fees
as damages.”); Dayton Hudson Corp. v. Eldridge, 742 S.W.2d 482, 488 (Tex. App.—
Dallas 1987, writ denied) (“[I]n the present case, Eldridge is not an innocent party
forced to incur costs and expenses, including attorneys' fees, to be treated as the legal
6 Motion, at Exhibit A, at Question No. 3.
consequences of some original wrongful act of another and permitted to be recovered
as damages.”).
Accordingly, attorney’s fees incurred by Pohl in defending against barratry
litigation and grievances are not recoverable “actual losses” under TUTSkA and should
not be included in the judgment. C
B. Attorneys’ fees are never recoverable against persons
bringing grievance procedures. t
Rule 17.09 of the Texas Rules of Disciplinary Procedure provides immunity to
persons filing grievance procedures: “No lawsuit emay be instituted against any
Complainant or witness predicated upon the filinug of a Grievance or participation in
the attorney disciplinary and disability system . . . . The immunity is absolute and
unqualified and extends to all actions ata law or in equity.” TEX. R. DISC. P. 17.09. Even
“allegations of wrongdoing . . . in connection with [the] prosecution of disciplinary
actions” are absolutely immune,e so long as they are “predicated upon” the filing of a
grievance. Crampton v. Farfris, 596 S.W.3d 267, 274-75 (Tex. App.—Houston [1st
Dist.] 2019, no pet.).
Thus, the $112,286 in attorney’s fees for defending against grievances that the
jury found in Quiestion 7(1)(e) and 7(1)(f) and are not recoverable damages as a matter
of law. See ToEX. R. DISC. P. 17.09.
III. The judgment should not include damages for both unjust
enrichment and fair market value; Pohl should have to elect
between the two.
Under TUTSA, a claimant is entitled to recover “actual loss caused by the
misappropriation and unjust enrichment caused by misappropriation that is not
10
taken into account in computing actual loss.” TEX. CIV. PRAC. & REM. CODE §134A.004.
Pohl’s request for judgment seeks an improper double recovery. In response to
Question 7(2) the jury found $250,000 in damages for actual loss, that is, the price a
willing buyer and a willing seller would have agreed on, at the time okf the alleged
misappropriation, as a fair price for Kassab’s use of the allegedC trade secrets. In
response to Question 7(3), the jury found $200,000 in unjust enrichment damages,
that is, the value of the development costs that Kassiab avoided by allegedly
misappropriating Pohl’s trade secrets.
If Pohl recovers the fair market value of his alleged trade secrets he will be
fully compensated for any actual loss. If he were willing to sell the alleged secrets to
a third party, that buyer would necessarilyl possess the secrets and would avoid any
development costs as part of the acqMuisition. Therefore, the development costs are
“taken into account” in the market value and duplicate the fair market value. TEX.
CIV. PRAC. & REM. CODE § 134Ai.004. In other words, Pohl cannot recover both of these
duplicative elements of damages under TUTSA but should be required to make an
election between the towo.
IV. The judgmlent should not include joint and several liability
under a iconspiracy theory because conspiracy is pre-empted
under TiUTSA or subject to proportionate responsibility under
Chapoter 33.
Pohl’s proposed judgment includes joint and several liability against Kassab
based on a conspiracy finding by the jury in Question 15. But Pohl’s conspiracy claim
is either preempted by TUTSA or subject to the proportionate responsibility scheme
of Chapter 33 of the Texas Civil Practice & Remedies Code.
11
With respect to TUTSA, the act provides that it “displaces conflicting tort,
restitutionary, and other law of this state providing civil remedies for
misappropriation of a trade secret.” TEX. CIV. PRAC. & REM. CODE §134A.007.
Although no Texas case has addressed this issue, a federal district cokurt sitting in
Texas has concluded that “the weight of authority from district courCts within the Fifth
Circuit … [demonstrate a] conspiracy claim is preempted by TUTSA.” VEST Safety
Med. Servs., LLC v. Arbor Env't, LLC, No. 4:20-CV-0812i, 2022 U.S. Dist. LEXIS
127285, at *10 (S.D. Tex. 2022) (collecting cases).
With respect to Chapter 33, it applies to “any cause of action based on tort in
which a defendant, settling person, or responsible third party is found responsible for
a percentage of the harm for which relief ils sought.” TEX. CIV. PRAC. & REM. CODE §
33.002(a). “Civil conspiracy is an inMtentional tort.” Firestone Steel Prods. Co. v.
Barajas, 927 S.W.2d 608, 617 (Tex. 1996). Chapter 33 lists those claims to which it
does not apply and does not lisit conspiracy. See id. at § 33.002(c). Accordingly, courts
have concluded that Chapter 33’s proportionate responsibility scheme applies to
conspiracy claims, ratoher than joint and several liability. See Seven Seas Petroleum,
Inc. v. Cibc World lMkts. Corp., No. H-08-3048, 2013 U.S. Dist. LEXIS 101112, at *73-
74 (S.D. Tex. i2013) (“when the Legislature has chosen to impose joint and several
liability rather than proportionate liability, it has clearly said so.”); Pemex
Exploracion Y Produccion v. BASF Corp., No. H-10-1997, 2011 U.S. Dist. LEXIS
156655, at *43-48 (S.D. Tex. 2011) (claims for conspiracy are not expressly exempted
from Chapter 33's proportionate responsibility framework).
12
Because the conspiracy claim is either preempted by TUTSA or subject to the
proportionate responsibility scheme under Chapter 33, the judgment should not
include joint and several liability against Kassab.
V. The judgment should not include any damages against Kkassab
because the jury’s finding of no wrongdoing by Perecision
destroys the misappropriation claim against Kassab. C
Pohl alleged that Precision illegally misappropriated trade secrets from him,
and that Kassab subsequently committed indirect misappriopriation of trade secrets
by acquiring illegally misappropriated trade secrets from Precision.7 Although Pohl
originally sued Precision, he non-suited his claims against Precision. Nevertheless,
Precision was designated as a responsible third party, and when the jury was asked
whether Precision misappropriated trade lsecrets from Pohl, it found that Precision
did not.8 In consistent fashion, the juryM answered “0” in Question 4 when asked to assign what
percentage of the “fault that caused the o injury” was attributable to Precision.9
Indirect misappropriation of trade secrets has been described as a “daisy-
chain” type liability in that the plaintiff must show “that the defendant knew or
had reason to knowo before the use or disclosure that the information was a trade
secret and knew olr had reason to know that the disclosing party had acquired it
7 Plaintiff’s nFirst Amended Petition, at ¶ 21 (“Favre and Precision illegally misappropriated
Pohl’s prUoprietary and confidential information and property …which included information
about and/or communications with as many as 10,000 or more of Pohl’s clients/prospective clients.
Favre and Precision stole physical copies of certain of the information, stole Pohl’s computers,
and misappropriated electronic data to which they had access through Precision’s work for Pohl.”)
(emphasis added).
8 Motion, at Exhibit A, Question 2(a)(3) and 2(b)(3).
9 Motion, Exhibit A, at Question No. 4(3).
13
through improper means or was breaching a duty of confidentiality by disclosing it.”
AssuredPartners of Or., LLC v. Reese, No. 6:22-cv-00673-MC, 2022 U.S. Dist. LEXIS
233618, at *7 (D. Or. 2022) (emphasis added). In other words, the jury must find the
first person in the chain committed direct misappropriation — i.e. kacquired the
information by improper means – before any of those indirectly misCappropriating can
be found liable. See TEX. CIV. PRAC. & REM. CODE § 134A.002
(3)(B)(ii)(a) (requiring
the person misusing the trade secret to know or have reaison know that the trade
secret was “derived from or through a person who used improper means to acquire
the trade secret”).
Here, the jury answered “No” to the question of whether Precision had
misappropriated Pohl’s trade secrets even tlhough Precision was defined in the charge
to include Walker, Seymour and LadnMer prior to May 12, 2015 and Favre after May
12, 2015.10 The jury’s finding that Precision, and those associated with Precision, did
not misappropriate anything —i meaning it either owed no duty to Pohl or breached
no duty to Pohl when it provided Pohl's alleged information to Kassab — precludes
liability against Kassaob for indirect misappropriation.
a l PRAYER FOR RELIEF
For all tihese reasons, Kassab objects to the judgment submitted by Pohl and
respectfully requests that the Court refrain from signing the proposed judgment.
10 See Motion, at Exhibit A, p. 5.
14
ALEXANDER DUBOSE & JEFFERSON LLP
/s/ Kevin Dubose
Kevin Dubose
kdubose@adjtlaw.com
Texas State Bar No. 06150500
1844 Harvard Street k
Houston, Texas 77008 e
Phone (713) 523-0667 C
Facsimile (713) 522-4553
FOGLER, BRAR, O’NEItL & GRAY, LLP
/s/ Murray Fogler
Murray Fogler
mfogler@feoglerbrar.com
Texas State Bar No. 07207300
909 Faunnin, Suite 1640
Houston, Texas 77002
(713) 481-1010
(l713) 574-3224 (Fax)
THME KASSAB LAW FIRM
/s/ David Eric Kassab
e Lance Christopher Kassab
i Texas State Bar No. 00794070
f David Eric Kassab
Texas State Bar No. 24071351
1214 Elgin Street
o Houston, Texas 77004
Telephone: (713) 522-7400
l E-service: eserve@kassab.law
i ATTORNEYS FOR KASSAB DEFENDANTS
CERTIFICATE OF SERVICE
I certify that this document has been forwarded to all counsel pursuant to the
Texas Rules of Civil Procedure on September 15th, 2023.
/s/ David Eric Kassab
David Eric Kassab
15
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
David Kassab
Bar No. 24071351
david@kassab.law r
Envelope ID: 79605741
Filing Code Description: No Fee Documents
Filing Description: t
Status as of 9/15/2023 2:32 PM CST i
Case Contacts D
Name BarNumber Email e TimestampSubmitted Status
Todd Taylor ttaylor@jandflaw.com 9/15/2023 1:38:22 PM SENT
Jean C.Frizzell jfrizzell@reBynoldsfrizzell.com 9/15/2023 1:38:22 PM SENT
Jean C.Frizzell jfrizzell@nreynoldsfrizzell.com 9/15/2023 1:38:22 PM SENT
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Scott M.Favre scott@favrepa.com 9/15/2023 1:38:22 PM SENT
Lawyer Wade lawyerwade@hotmail.com 9/15/2023 1:38:22 PM SENT
Chris C.Pappas cpappas@krcl.com 9/15/2023 1:38:22 PM SENT
Non-Party Witness Billy Shepherd O bshepherd@spcounsel.com 9/15/2023 1:38:22 PM SENT
Non-Party Dona Pohl y DonaLyann@yahoo.com 9/15/2023 1:38:22 PM SENT
Non-Party Edgar Jaimes o edgarsroom@gmail.com 9/15/2023 1:38:22 PM SENT
Lance Kassab lance@kassab.law 9/15/2023 1:38:22 PM SENT
David Kassab david@kassab.law 9/15/2023 1:38:22 PM SENT
Nicholas Pierce f i nicholas@kassab.law 9/15/2023 1:38:22 PM SENT
Lance Kassab eserve@kassab.law 9/15/2023 1:38:22 PM SENT
Andrea Mendez andrea@kassab.law 9/15/2023 1:38:22 PM SENT
Murray JFogler mfogler@foglerbrar.com 9/15/2023 1:38:22 PM SENT
Murray Fogler mfogler@fbfog.com 9/15/2023 1:38:22 PM SENT
Andrew Johnson ajohnson@thompsoncoe.com 9/15/2023 1:38:22 PM SENT
Benjamin Ritz britz@thompsoncoe.com 9/15/2023 1:38:22 PM SENT
Dale Jefferson 10607900 jefferson@mdjwlaw.com 9/15/2023 1:38:22 PM SENT
Raul Herman Suazo 24003021 suazo@mdjwlaw.com 9/15/2023 1:38:22 PM SENT
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
David Kassab
Bar No. 24071351
david@kassab.law r
Envelope ID: 79605741
Filing Code Description: No Fee Documents
Filing Description: t
Status as of 9/15/2023 2:32 PM CST i
Case Contacts D
Kevin Graham Cain 24012371 cain@mdjwlaw.com 9/15/2023 1:38:22 PM SENT
D Kassab david@kassab.law 9/15/2023 1:38:22 PM SENT
Murray J. Fogler 7207300 mfogler@foBglerbrar.com 9/15/2023 1:38:22 PM SENT
L Kassab lance@knassab.law 9/15/2023 1:38:22 PM SENT
Murray J. Fogler 7207300 mfoglielr@foglerbrar.com 9/15/2023 1:38:22 PM SENT
Thallia Malespin tmalespin@reynoldsfrizzell.com 9/15/2023 1:38:22 PM SENT
Misty Davis mdavis@reynoldsfrizzell.com 9/15/2023 1:38:22 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 9/15/2023 1:38:22 PM SENT
Kevin Dubose 6150500 kdubose@adjtlaw.com 9/15/2023 1:38:22 PM SENT
Marisa Barrera Cruz Hurd 2O4041157 mhurd@adjtlaw.com 9/15/2023 1:38:22 PM SENT
Kelly Skelton y reception@kassab.law 9/15/2023 1:38:22 PM SENT
Harris Wells o hwells@reynoldsfrizzell.com 9/15/2023 1:38:22 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 9/15/2023 1:38:22 PM SENT"