filing_id,date,doc_type,party,description,doc_type_detail,procedural_posture,chain,outcome,phase,filename,relief_requested,full_text
67,2024-02-02,RSP,Pohl,Objections to Kassab JNOV,"Pohl's Response in Opposition to Kassab's Motions for New Trial and for JNOV, systematically opposing all 22 grounds for new trial and all JNOV arguments. Argues: all grounds are recycled rejected arguments; witness tampering allegations identical to rejected mistrial motion and based on unsworn statements of self-professed perjurer/extortionist; multiple charge objections waived at charge conference; jury verdict supported by nearly two weeks of trial evidence; Kassab fails to cite trial record; incorporates 15 prior filings by reference.","Response filed February 2, 2024, opposing both the Motion for New Trial and Motion for JNOV filed January 19, 2024. Pohl incorporates by reference 15 prior filings spanning 2021-2023. Notes Kassab has not filed a proposed order as required by court procedures.",POST-1,N/A,Phase 5,2024-02-02_RSP_Pohl-Objections-to-Kassab-JNOV_FILED.pdf,Denial of Kassab's Motion for New Trial and Motion for JNOV in their entirety,"2/2/2024 4:44 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 84110431
By: Bonnie Lugo
Filed: 2/2/2024 4:44 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL et al. § IN THE DISTRICT COURT OF
Plaintiffs, §
V. § HARRIS COUNTY,k TEXAS
§ e
LANCE CHRISTOPHER § C l
KASSAB et al. § 
§ c
Defendants. § 281ST JUDrICIAL DISTRICT
POHL’S RESPONSE IN OPPOSITION TO THE MOTIONS FOR NEW TRIAL AND
FOR JUDGMENT NOT WITHSTANDING THE VERDsICT AND TO DISREGARD
JURY FINDINGS FILED BY THE KASSAsB DEFENDANTS
Plaintiffs Michael Pohl and Law Office of Michaerl A. Pohl (collectively “Pohl”) respond
in opposition to The Kassab Defendants’ Motion for New Trial (the “Motion for New Trial”) and
Motion for Judgment Not Withstanding the Verdlict and to Disregard Jury Findings (the “Motion
for JNOV”) filed by Defendants Lance ChMristopher Kassab and Lance Christopher Kassab, P.C.,
d/b/a The Kassab Law Firm (collectively “Kassab”).
I. INTRODUCTION
Kassab’s Motion for New Trial and Motion for JNOV repeat Kassab’s arguments that the
Court has previously considered and rejected. In these two motions, Kassab recycles arguments
rejected at summary judgment, 166(g) hearings, pre-trial hearings, directed verdict, and otherwise.
The Court’s judgcment and the jury verdict are supported by and consistent with ample evidence
presented at trial. But Kassab would have the Court throw out a jury verdict supported by nearly
two weeks’ worth of trial evidence. Because the issues that Kassab raises are without merit, the
Court should deny Kassab’s Motion for New Trial and Motion for JNOV.
II. STANDARDS
A. Motion for New Trial
“Jury trials are essential to our constitutionally provided method for resolving disputes,”
and “a jury’s decision is not to be tampered with lightly, regardless of whether it favors the plaintiff
or the defendant.” In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.Pl., 290 S.W.3d 204,
211 (Tex. 2009) (citing Tex. Const. art. I, § 15, art. V, § 10); see generally Hterbert v. Herbert, 754
S.W.2d 141, 144 (Tex. 1988) (“long-established precedents in this sstate demonstrate respect for
jury verdicts”). Thus, the “discretion Texas trial courts possess to overturn jury verdicts and grant
new trials,” though broad, “has its limits.” In re Columbia,e 290 S.W.3d at 210. “[T]he fact that
the right to jury trial is of such significance omas to be provided for in both the Federal and State
Constitutions counsels against courts setting aside jnury verdicts for less than specific, significant,
and proper reasons.” Id. at 210 n.3. A court’s rdiscretion in granting a new trial “should not, and
does not, permit a trial judge to substitute . . . her own views for that of the jury without a valid
basis.” Id. at 212. e
“[N]ew trials may be granfted to a party for sufficiency or weight of the evidence, when
damages are ‘manifestly’ tooy small or too large, and for ‘good cause.’” Id. at 210 (citing TEX. R.
CIV. P. 320, 326). Rul
e 320’s “good cause” standard “does not mean just any cause,” but rather a
“specific, significanat, and proper” cause. See id. at 210 n.3. As for challenges to the evidentiary
sufficiency of a fjury finding: A factual-sufficiency challenge can only prevail where a jury finding
“is so against the great weight and preponderance of the evidence that it is manifestly unjust,
shocks the conscience, or clearly demonstrates bias.” In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)
(citing Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)).1 A legal-sufficiency challenge
1 With respect to an issue involving the clear and convincing evidence standard, a slightly different inquiry is
warranted. See Jang Won Cho v. Kun Sik Kim, 572 S.W.3d 783, 810 (Tex. App.—Houston [14th Dist.] 2019, no pet.)
requires a party challenging a finding on which it did not bear the burden to “demonstrate that no
evidence supports the finding.” Four J’s Cmty. Living Ctr., Inc. v. Wagner, 630 S.W.3d 502, 513
(Tex. App.—Houston [1st Dist.] 2021, pet. denied) (emphasis added, citation omitted).
If the trial court grants a new trial, it cannot “simply parrot a pro forma tekmplate.”2 In re
Munsch, 614 S.W.3d 397, 400 (Tex. App.—Houston [14th Dist.] 2020, no pelt.). Instead, a new
trial order must “provide an understandable, reasonably specific explancation of the trial court’s
reasons for setting aside the jury’s verdict” that “derive[s] the artsiculated reason[s] from the
particular facts and circumstances of the case at hand.” Id. (citsations omitted). The trial court’s
“stated reason for granting a new trial must [also] be a legally valid reason.” Id.
B. Judgment Notwithstanding the Verdict
A court may render a judgment notwithstanding the verdict only if a directed verdict would
have been proper. See TEX. R. CIV. P. 301. “A
directed verdict is warranted when the evidence is
such that no other verdict can be rendered and the moving party is entitled, as a matter of law, to
judgment.” Zarate v. Rodriguez, 542e S.W.3d 26, 35 (Tex. App.--Houston [14th Dist.] 2017, pet.
denied) (citation omitted). Put anfother way, judgment notwithstanding the verdict “is proper when
the evidence is conclusive aynd one party is entitled to prevail as a matter of law, or when a legal
principle precludes recCovery.” Id. (citation omitted); see also Barrow-Shaver Res. Co. v. Carrizo
Oil & Gas, Inc., 5a90 S.W.3d 471, 480 (Tex. 2019) (“Judgment . . . against a jury verdict is
proper . . . only fwhen the law does not allow reasonable jurors to decide otherwise.”).
(“factual sufficiency of the evidence under a clear and convincing standard requires us to determine based on the
record whether the fact finder reasonably could form a firm conviction or belief that the allegations were proven.”).
2 Kassab has not yet filed a proposed order as required by the Court’s procedures. The Court cannot adopt a pro forma
proposed order to grant a new trial. There are minimum constitutional requirements articulated by the Texas Supreme
Court. See In re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d 746, 748-49 (Tex. 2013) (“trial court must explain with
reasonable specificity why it . . . circumvented a critical constitutional right” and “granted a new trial”); In re United
Scaffolding, Inc., 377 S.W.3d 685, 688–89 (Tex. 2012) (orig. proceeding) (“trial court abuses its discretion if its new-
trial order provides no more than a pro forma template rather than the trial judge’s analysis”); see also In re Bent, 487
S.W.3d 170, 173 (Tex. 2016) (orig. proceeding); In re Columbia, 290 S.W.3d at 212–13.
III. POHL’S INCORPORATION OF PRIOR BRIEFING
Because Kassab’s arguments are largely recycled arguments previously rejected by this
Court and the 189th District Court, Pohl incorporates fully by reference his prior briefing—both
the arguments and the attached exhibits—on these issues. This includes the followking items:
• Pohl’s Motion for Summary Judgment on Defendants’ Counterclaims,l filed Dec. 7, 2021.
• Pohl’s Reply in Support of His Motion for Summary Judgtment on Defendants’
Counterclaims, filed Feb. 4, 2022.
• Pohl’s Objection to Kassab’s Motion to Designate Responsisble Third Parties, filed May
31, 2022. D
• Pohl’s Response in Opposition to the Traditional Moti s ons for Summary Judgment Filed
by the Kassab Defendants and the Nicholson Defendeants & Exhibits, filed Sept. 12, 2022.
• Plaintiffs’ Response in Opposition to the Kassarb Defendants’ Three New Motions to
Compel, filed Sept. 27, 2022.
• Pohl’s Motion to Exclude or Limit the Testnim  ony of Defendants’ Expert Witnesses, filed
Nov. 30, 2022 y
• Pohl’s Objection to Kassab’s Suppale r mental Motion to Designate Responsible Third
Parties, filed Nov. 30, 2022. M
• Pohl’s Rule 166(g) Motion on fBarratry Liability and Specific Affirmative Defenses
Asserted by the Kassab Defendants, filed Nov. 30, 2022.
• Pohl’s Response in Opposit c ion to the Amended Motions for Summary Judgment Filed by
the Kassab Defendants &f Exhibits, filed March 29, 2023.
• Pohl’s Letter responding to arguments raised in Kassab’s April 13, 2023 letter, filed April
18, 2023. p
• Pohl’s Rule 10C4(c) Motion Disputing the Admissibility of Lance Kassab’s Testimony as
an Expert Witnesses, filed Aug. 4, 2023.
• Pohl’s Letiter Brief Concerning Barratry and Pohl’s Rule 166(g) Motion, filed Aug. 15,
2023. i
• Pohl’s Reply in Support of His Motion for Entry of Final Judgment, filed Sept. 18, 2023.
• Pohl’s Reply to Kassab’s Post-Hearing Letter on Pohl’s Motion for Entry of Judgment,
filed Sept. 22, 2023.
• Pohl’s Response to Kassab’s Emergency Motion for Mistrial & Exhibits, filed Dec. 21,
2023.
IV. DISCUSSION
Many of the issues presented in Kassab’s motions have been previously argued by Kassab
and rejected by the Court with a ruling in Pohl’s favor. The same result is proper here, and the
Court should deny Kassab’s Motion for New Trial and Motion for JNOV. Manyk issues Kassab
raises were waived or are boilerplate sufficiency objections without citationsl to the trial record.
But Kassab has not grappled with the evidence in the trial record—nor dcoes he attach the record
as support. It is apparent that Kassab gives little weight to the evidensce Pohl introduced at trial—
Kassab has taken positions throughout the lawsuit that require him to reject Pohl’s testimony and
evidence—but the verdict demonstrates the jury did accept Pohl’s evidence. Kassab has not
carried his burden to demonstrate error in the judgment or verdict, much less any error that would
warrant a new trial or setting aside the judgment.
A. Kassab’s alleged new evidence dida not warrant a mistrial, and it does not warrant
a new trial (Motion for New TriMal Issue #1).
The Court should reject Kassabo’s lead argument for a new trial—Kassab’s allegations of
witness tampering—because it prescents the same arguments and evidence that the Court recently
considered and found did not warrant a mistrial. Kassab presents no new material information,
evidence, or argument thapt warrants reconsideration. The Court correctly ruled that Kassab’s
arguments—which rely on untrue statements—did not justify setting aside the jury’s verdict.
Those same argumcents do not warrant setting aside the Court’s judgment based on that verdict.
Kassaob’s first argument for a new trial is that he claims there is newly discovered evidence
of witness tampering that warrants a new trial. See Motion for New Trial at 4–9. He contends that
“[a]lthough Walker and Ladner testified one way in the Mississippi litigation they brought against
Pohl, when they were deposed in this case they reversed course on seminal issues of barratry and
ownership of Pohl’s purported trade secrets.” Id. at 6. This is the same rejected argument Kassab
made for a mistrial. Compare id. at 4–9 & exhibits 1–4, with Kassab’s Emergency Motion for
Mistrial at 1–7 & exhibits 1–4, filed Dec. 13, 2023.
Pohl responded to Kassab’s Emergency Motion for Mistrial and explained how Kassab’s
arguments were misleading. See generally Pohl’s Response to Kassab’s Emergekncy Motion for
Mistrial, filed Dec. 21, 2023. Despite Pohl pointing out that it is demonstrablyl untrue that Walker
and Ladner changed their testimony on the issues Kassab complains abocut “in this case,” Kassab
continues to push this false narrative. See id. at 7–10 (explaining how sKassab withheld information
from the Court about Walker and Ladner giving testimony ins 2018 consistent with their 2022
depositions in this case); Motion for New Trial at 6–7 (demonstrating Kassab continues to wrongly
suggest that a change occurred with Walker and Ladner’s testimony “in this case”).
While Pohl relies on his prior arguments and evidence, the following summarizes why the
Court should reject Kassab’s argument. Fiarst, Kassab suggests that Pohl agreed to share a
judgment with Walker and Ladner in exchange for them sitting for depositions and changing
deposition testimony on two topics ine this case. But Kassab knows this is not true. Pohl did not
convince Walker or Ladner to sitf for depositions—Kassab, not Pohl, subpoenaed their testimony.
And Pohl did not need to inyfluence Walker or Ladner to “change” their testimony in this case.
Kassab took their depoCsitions in a different case in 2018—four years before their depositions in
this case. Kassab does not discuss, let alone grapple with, the fact that Walker gave testimony in
2018 on the twfof topics at issue that is consistent with his testimony in this case.
SeUcond, even if Walker changed his testimony on the relevant topics for this case—which
is not true—Kassab has not provided evidence to justify granting a new trial. Kassab’s argument
hinges on the truthfulness of vague, unsworn statements of Scott Walker, a self-professed perjurer
and an extortionist. Walker first unsuccessfully tried to extort Pohl for a share of the eventual
judgment in this case, but Pohl refused to be extorted. Walker then approached Kassab and asked
Kassab repeatedly to pay him to help Kassab avoid paying any judgment to Pohl. Kassab does not
mention this fact in his motion—nor did he disclose it to the Court when requesting a mistrial.
In any event, Kassab cannot show that he is entitled to a new trial based solkely on unsworn
statements of a self-professed perjurer who pitched a story as part of an offerl to sell Kassab his
testimony to help undermine any judgment in this case. Kassab failed tco establish facts that the
Court can rely on to grant a new trial and overturn the jury’s considersed verdict in this case.
B. The jury properly found that Pohl owned the trades secrets (Motion for New Trial
Issue #2 and Motion for JNOV Issue #1). s
After reviewing the evidence and testimony prersented at trial, the jury found that (1)
“[a]ttorney client fee contracts between Pohl and his clients” and (2) “[a]ny list of the identities
and contact information of Pohl’s actual, potentlial or rejected clients” constituted Pohl’s trade
secrets.3 The jury heard evidence supportinMg its finding that Pohl owned the relevant information,
that it had economic value to Pohl as ao compilation, that it was kept secret, and that Pohl took
reasonable steps to safeguard its seccrecy. There is no basis that can justify the Court setting aside
the jury’s findings on this issue after a legal or factual review.
As noted above, for a factual sufficiency challenge to prevail, the Court must find that the
jury finding “is so against the great weight and preponderance of the evidence that it is manifestly
unjust, shocks thec conscience, or clearly demonstrates bias.” In re C.H., 89 S.W.3d 17, 25 (Tex.
2002). That standard is not met here, where the jury finding is based on the jury accepting the
testimony of witnesses, weighing the documentary evidence, and finding in Pohl’s favor. Nor has
Kassab shown as a matter of law that Pohl does not own the trade secrets as required to meet the
JNOV standard.
3 See Jury Verdict, Question 1(a)–(b), attached as Exhibit A.
Kassab continues to try and conflate the issues by suggesting that “Pohl cannot own a trade
secret in attorney-client contracts because they are owned by the client.” Motion for New Trial at
9; Motion for JNOV at 5–6. While a client may have a right to a copy of the particular attorney–
client contract the client is a party to, the lawyer also has an ownership right in eakch contract and
to the collection of his contracts.4 Unlike work product, which is generated onl behalf of a client,
an attorney does not act as the agent of a client when a fee contract is drafcted or before it is signed.
A client certainly does not own a collection of attorney–client cosntracts or a compilation of
information based on multiple attorney–client contracts. Pohl ansd other witnesses provided direct,
on-point testimony on this specific issue.
Kassab also ignores Pohl’s testimony about his ownership of the contracts, any lists, and
the information more generally. He instead focuses on an allegation that Pohl’s office manager
“testified that she did not consider the attornaey-client contracts trade secrets.” Motion for New
Trial at 10. But her opinion on what constitutes trade secrets is not relevant. Kassab fails to
mention that Pohl’s office manager aelso gave testimony showing that Pohl did own the contracts
and any list of information comfpiled from those contracts. The jury had ample evidence to
conclude Pohl owned the ryelevant trade secrets, including because Pohl’s name was on the
contracts, and Pohl hadC the right to any list made by those working for him that was compiled from
the information contained in those contracts.
The jurfyf also saw evidence that Pohl took reasonable steps to keep his client information
confidentUial and that the compilation of this information had value beyond simply the sum of its
components (what Kassab refers to as a “competitive advantage”). The jury heard testimony about
how client information was kept in a locked office above a bank with security. The jury heard
4 Cf. Texas Ethics Opinion No. 670 (March 2018) (discussing how an attorney can use copies of former client
documents as “forms” in a new firm provided he keeps confidential information confidential).
about how those who worked for Pohl understood that client information had to be kept secret.
The jury heard testimony about the value of knowing the identities of persons who may participate
in mass tort litigation. The jury also heard opinion testimony about how, by the very nature of the
work, persons working for lawyers understand they must safeguard the secrecy kof information,
especially client information. l
Kassab continues to contend that Pohl’s trade secrets were “gcenerally known to third
parties.” Motion for New Trial at 12. But there was a lack of evsidence showing this at trial.
Instead, the jury saw evidence that Kassab was willing to pay osver six figures to get access to the
attorney–client contracts (and lists of contact information based on those contracts). The jury was
free to reject Kassab’s unsupported assertion that Pohl’s client list—which would have included
contact information—was publicly available when Kassab failed to provide evidence
demonstrating this claim. Kassab’s actionas were inconsistent with his assertion that this
information was publicly available. 
The record at trial demonstratees that there is factually sufficient evidence to show that the
attorney–client contracts and listsf of identities and contact information of Pohl’s clients constituted
Pohl’s trade secrets. Kassaby’s conclusory assertions about what he thinks the evidence showed do
not carry his burden toC establish that he is entitled to judgment as a matter of law. The jury’s
finding that Pohl owned the relevant trade secrets is legally proper and supported by testimony and
documentary efvfidence. The jury’s finding in favor of Pohl on this issue—made after the jury
weighed Uthe evidence—should not be disturbed.
C. Kassab waived any objection to Question #2 (Motion for New Trial Issue #3).
For the first time, Kassab complains in his Motion for New Trial that the Court erred in
submitting Question #2 to the jury. This question was properly included because it was supported
by evidence introduced at trial, and Kassab was on notice of the nature of Pohl’s claims against
Kassab. But the Court does not need to reach those issues. Kassab failed to object to Question #2
at the charge conference and thus failed to preserve any objection to this jury question.
It is blackletter law that a party must articulate its objections to the Court before the Court
reads the jury charge to the jury to preserve any objection. See TEX. R. CIVk. P. 274 (“Any
complaint as to a question, definition, or instruction, on account of any defectl, omission, or fault
in pleading, is waived unless specifically included in the objections.”). c A party cannot raise an
objection to a jury question for the first time as part of a motion fors a new trial. See Mitchell v.
Bank of Am., N.A., 156 S.W.3d 622, 628 (Tex. App.—Dallas 2s004, pet. denied) (“Objections to
the court’s charge in a motion for a new trial are untimely and preserve nothing for review.”); see
also Zermeno v. Garcia, No. 14-17-00843-CV, 2019 WL 2063090, at *3 n.5 (Tex. App.—Houston
[14th Dist.] May 9, 2019, pet. denied).
In Kassab’s Motion for New Trial, hae contends that the Court erred in submitting Jury
Question #2. See Motion for New Trial at 12–14. However, Kassab did not object to this question
at the charge conference.5 Thus, Kasesab cannot raise objections to this jury question for the first
time in his Motion for New Trial.f
While Kassab waivedy any objections he may have had, Kassab is also wrong on the merits
of this issue. A signifCicant issue at trial was whether Kassab improperly obtained Pohl’s trade
secrets from Favre and Precision. Pohl put on evidence showing that Precision, as a company that
provided servicfefs to a lawyer, had a duty of secrecy and that Kassab should have known that Favre
and PreciUsion had a duty to keep Pohl’s trade secrets confidential. But despite knowing that before
obtaining the information, Kassab helped induce a breach of confidentiality by wrongfully
5 Jury Charge Conference Transcript at 6–7 (showing the Court asked if Kassab had any objections to Question #2,
and Kassab’s counsel stated: “Not to Number 2.”), attached as Exhibit B.
10
purchasing Pohl’s trade secrets. Thus, the evidence presented at trial was sufficient to support the
broad-form submission of Question #2 to the jury.
D. There is factually sufficient evidence for the jury’s finding that Kassab engaged in
misappropriation (Motion for New Trial Issue #4 and Motion for JNOV Issue #2).
The jury found that Kassab misappropriated Pohl’s trade secrets after seering and hearing
ample evidence that Kassab willfully and knowingly acquired those trade secrets from persons
Kassab knew were violating an obligation to keep the trade secrets conrfiidential. Kassab ignores
the evidence in favor of the jury’s findings and improperly tries toD engage in burden-shifting after
the fact. The Court should reject this previously disputed issuse.
Kassab’s main argument is that the jury’s findring of 0% liability for Precision on
misappropriation is inconsistent with a finding that he misappropriated Pohl’s trade secrets. See
Motion for New Trial at 14–16; Motion for JNOVl at 10–12. As a threshold matter, Kassab waived
his right to object based on any alleged inMconsistency in the jury’s verdict by not asserting any
objections before the Court dismissed tohe jury. See Bryan v. Papalia, 542 S.W.3d 676, 692–93
(Tex. App.—Houston [14th Dist.] 2c017, rev. granted, judgm’t vacated w.r.m.). But even if Kassab
had not waived the issue, Kassab’s theory fails because it was Kassab’s, not Pohl’s, burden to
introduce evidence showing Precision engaged in misappropriation.
There is nothing inconsistent about the jury finding that Precision did not misappropriate
the information acnd that Kassab did. The jury could have found that Precision obtained the
information lawfully because Precision obtained the information at the request of, while working
for, and while being paid by Pohl. The jury also could have based its misappropriation finding on
Kassab’s post-acquisition “use” or “disclosure” of the trade secrets. Regardless, Kassab is the
party that sought to designate Precision as a responsible third party. Kassab cites no authority for
the theory that his failure to persuade the jury that Precision engaged in misappropriation can be
11
used to undermine a jury finding on a separate issue where Pohl did carry the burden of proof. To
find otherwise would flip the incentives in the case. Kassab would have no incentive to introduce
any evidence to support a finding of liability against a party he designated as a responsible third
party. Instead, it would create a conflicting incentive for Pohl to introduce evideknce potentially
undermining his case to prove that some responsibility was born by someone lother than Kassab.
This makes no sense, and the Court should reject Kassab’s unsupported tcheory.
Kassab’s theory of factual insufficiency (and no evidence) relsies on ignoring the evidence
at trial. He contends that there is insufficient (or no) evidence she was aware the information had
been acquired by improper means or from someone who had acquired it improperly. See Motion
for New Trial at 16; Motion for JNOV at 11. But Kassab apparently forgets that this was a major
issue at trial. On their face, the documents that Kassab purchased were not the sort of documents
that can be properly purchased from a non-laawyer. Pohl introduced expert opinion testimony on
what a lawyer should know about the confidentiality of materials containing information about
another lawyer’s clients. Kassab proevided testimony on cross-examination on this issue that the
jury could have found to be nofn-credible or to support an inference that Kassab acted with
awareness of the proper ownyer of Pohl’s trade secrets when Kassab purchased them.
There was testaCmentary and documentary evidence before the jury supporting their finding
that Kassab had misappropriated Pohl’s trade secrets. Kassab’s argument that this finding was
supported by inf fsufficient or no evidence is contrary to the trial record. The Court should reject
Kassab’sU arguments for a new trial and to set aside the judgment.
E. Kassab did not sufficiently preserve his objection to Question #3 (Motion for New
Trial Issue #5).
Kassab failed to timely notify the Court of his objection to Question #3 contained in his
Motion for New Trial. Pohl opposed the inclusion of Question #3. The Court chose to include
12
this question because Kassab wanted to make arguments about barratry, and he insisted on
including a jury question about alleged wrongful conduct by Pohl. Kassab now objects, saying
this question is not properly tied to other parts of the charge. But he waived this issue by failing
to timely make this objection and alert the Court of this alleged issue. k
Kassab argues that Question #3 was improper “because it was not tied lto any other part of
the charge.” Motion for New Trial at 17. However, Kassab did not raisce this issue at the charge
conference.6 Instead, Kassab presented the Court with a broasder, non-relevant question
concerning barratry.7 The Court rightfully rejected Kassab’s srequest to use that question. But
more importantly, Kassab failed to object to Question #3 on the basis that it was not tied to another
part of the charge. His failure to object on this ground
waived the issue. See TEX. R. CIV. P. 274
(“Any complaint as to a question, definition, or instruction, on account of any defect, omission, or
fault in pleading, is waived unless specificallya included in the objections.”); see also Mitchell, 156
S.W.3d at 628. 
F. The Court correctly rejecteed Kassab’s proportionate responsibility question
(Motion for New Trial Issue #6).
Kassab claims the Court erred by not submitting Kassab’s proportionate responsibility
question without citing a single legal authority to support his argument. See Motion for New Trial
at 17–18. Kassab was obligated to tender a legally proper jury question to preserve any objection.
But Kassab’s reqcuested jury question is contrary to the terms of the proportionate responsibility
statute. Further, Kassab’s proposed question was improper because it included individuals as
potentially responsible parties despite Kassab’s failure to introduce relevant evidence of their fault
at trial to support their inclusion on the jury question.
6 Jury Charge Conference Transcript at 6–7, Ex. B.
7 See id.; see also Motion for New Trial Ex. 6 (containing Kassab’s proposed alternative to Question #3).
13
Unlike, for example, negligence—where a plaintiff can negligently contribute to his or her
injury—Pohl could not have misappropriated his trade secrets. Thus, Pohl could not have violated
an “applicable legal standard” that contributed to causing the harm for which recovery of damages
is sought.” See TEX. CIV. PRAC. & REM. CODE § 33.011(4). As a result, the Court pkroperly rejected
Kassab’s proportionate responsibility question, which included a line for Pohl. lKassab’s proposed
question was also improper because it included lines for Walker, Seymocur, and Ladner despite a
lack of evidence regarding their fault at trial. It also would have besen improperly duplicative to
include those individuals alongside Precision in the question. s 
Because Kassab had the burden to submit a legally proper alternative question on the issue
of proportionate responsibility, his failure to tender a legally proper question at the charge
conference waived this issue. It was not error for the Court to reject the improper question Kassab
presented to the Court at the charge conferencae.
G. The statute of limitations did not run against Kassab before his wrongful conduct
occurred (Motion for New Trial Issues #7–8 and Motion for JNOV Issue #3).
Kassab makes two types ofc arguments concerning limitations. First, he argues that the
Court erred by asking the jury about Kassab’s misappropriation of Pohl’s trade secrets rather than
some alleged misappropriation by another party. See Motion for New Trial at 18. Second, and
relatedly, he argues that Pohl’s claim for misappropriation of trade secrets accrued prior to Kassab
engaging in any cwrongful conduct. See id. at 21–22; Motion for JNOV at 13–15. The Court
should reject both of these arguments because Pohl’s claims against Kassab could not accrue prior
to Kassab engaging in the wrongful conduct that gave rise to Pohl’s claims.
Kassab relies on alleged conduct by third parties to argue that Pohl’s claims against Kassab
accrued before Kassab engaged in wrongful conduct that gave rise to Pohl’s claims. Such a reverse
discovery rule—operating to cause the limitations period to run before Pohl could have brought
14
suit—makes no sense. It is Kassab’s conduct that is relevant for determining when Pohl’s claims
accrued. Here, Pohl’s claims accrued no earlier than November 2016, when the evidence shows
that Kassab knowingly purchased and acquired possession of Pohl’s confidential information from
a third party that Kassab knew had worked for Pohl. k
While a Texas Uniform Trade Secrets Act (“TUTSA”) claim may not ble a continuing tort,
that does not mean that different people cannot commit separate acts ocf misappropriation. For
example, Kassab cites Agar Corp., Inc. v. Electro Circuits Int’l, LLC, s565 S.W.3d 12 (Tex. App.—
Houston [14th Dist.] 2016), aff’d in part, rev’d in part, 580 S.Ws.3d 136 (Tex. 2019), to argue that
Pohl’s claim against Kassab accrued before Kassab purchased Pohl’s trade secrets. But Kassab
misunderstands this case. In Agar, a third party allegedly sold Agar’s trade secrets on multiple
occasions. See Agar, 565 S.W.3d at 19–20. Invoking both the continuing tort doctrine and the
discovery rule, Agar argued that limitations foar its conspiracy claim did not begin to run until the
last sale of its trade secrets (the last overt act) by that third party occurred. See id. The court
rejected that argument for multiple reeasons, including that the misappropriation of Agar’s trade
secrets was not a continuing tortf that reset upon each subsequent sale of the trade secrets by the
third party. See id. at 21. y
Agar stands forC the proposition that, for a specific party, the limitations period starts to run
when that party first misappropriated the trade secret, not when it last used the misappropriated
trade secret. Sfefe Agar, 565 S.W.3d at 21. Pohl filed suit less than two years after Kassab first
misapproUpriated Pohl’s trade secrets. Agar does not support Kassab’s argument that a third party’s
alleged prior misappropriation can start the limitations period before a separate party engages in
any wrongful conduct. A third party’s conduct cannot cause accrual of a cause of action against
Kassab before Kassab engaged in the wrongful conduct. Agar’s holding is simply not relevant.
15
Because the relevant issue for limitations is Kassab’s misappropriation of Pohl’s trade
secrets, the Court properly asked the jury about misappropriation “by Kassab.”8 Further, Kassab’s
discussion of unproven alleged wrongful conduct by persons other than Kassab has no bearing on
when limitations began to run. Kassab has not established his affirmative defensek, and the Court
should reject Kassab’s recycled limitations arguments.9 l
H. The Court properly declined to submit Kassab’s jury questicons related to non-
applicable affirmative defenses (Motion for New Trial Issure #9 and Motion for
JNOV Issues ## 4–5). s
Kassab was not entitled to jury questions on his unlawful acts doctrine and privilege
defenses. The proportionate responsibility statute preempts the unlawful acts doctrine. Kassab’s
privilege defense has no support in Texas law, and he relies on out-of-state authority taken out of
context to support the idea that the defense exists in the first place. The Court properly declined
to submit these defenses to the jury, given the lack of support for such questions.
1. The unlawful acts doctrine is preempted and does not apply.
Kassab first argues that he waes entitled to a jury question to help him establish a defense
based on the unlawful acts doctrinfe. See Motion for New Trial at 22–23; Motion for JNOV at 15–
17. This issue has been exteyns  ively briefed and discussed with the Court.10 To the extent that the
unlawful acts doctrine could have any relevance to this case, it is preempted by Texas’s
proportionate respoansibility statute. In Dugger v. Arredondo, the Texas Supreme Court explicitly
found that “the cfommon law unlawful acts doctrine is no longer a viable defense.” See 408 S.W.3d
825, 831–32 (Tex. 2013). While its holding did not deal with TUTSA claims, its reasoning is
8 See Jury Verdict, Question 5, Ex. A.
9 See Pohl’s Letter responding to arguments raised in Kassab’s April 13, 2023 letter, filed April 18, 2023; Pohl’s
Response in Opposition to the Traditional Motions for Summary Judgment Filed by the Kassab Defendants and the
Nicholson Defendants & Exhibits at 14–19, filed Sept. 12, 2022.
10 See Pohl’s Letter Brief Concerning Barratry and Pohl’s Rule 166(g) Motion at 5–6, filed Aug. 15, 2023; Pohl’s Rule
166(g) Motion at 8–10, filed Nov. 30, 2022; Pohl’s Response in Opposition to the Traditional Motions for Summary
Judgment Filed by the Kassab Defendants and the Nicholson Defendants & Exhibits at 19–27.
16
based on the applicability of the proportionate responsibility statute, and that reasoning applies
squarely to this case. Kassab cannot claim the benefit of the proportionate responsibility statute
while simultaneously seeking to apply the conflicting unlawful acts doctrine defense.11
But even if this defense were not preempted, it would not be applicable.k It would only
apply if Pohl needed to rely on a purported illegal act to establish his claims. Slee Carcamo-Lopez
v. Does 1 through 20, 865 F. Supp. 2d 736, 767 (W.D. Tex. 2011) (“But cwhen the illegal conduct
arises in a defense and not in the plaintiff’s case, the unlawful acts rsule will not bar a plaintiff’s
claims.”). Kassab contends that barratry provides the support fsor this defense. But Pohl did not
need to rely on establishing acts of barratry to prove his case. Thus, this defense has no application,
and the Court properly did not submit a question to the jury on this defense.
2. Kassab did not enjoy a privilege to engage in misappropriation of trade secrets.
Kassab’s second argument is that he had a privilege to disclose Pohl’s trade secrets and
enjoys immunity from Pohl’s claims as a result. See Motion for New Trial at 24–25; Motion for
JNOV at 17–19. Kassab cannot coenspire to misappropriate and acquire information for his
commercial benefit and then claimf that he was justified or privileged to do so because he believed
Pohl had improperly soliciteyd some clients. That is the privilege that Kassab is asking the Court
to be the first Court inC Texas to adopt—parties can be justified or privileged to engage in the
misappropriation ofa trade secrets if they believe it will help uncover the wrongdoing of others.
The Court has, afnd should continue to, reject this novel theory.
TUhere is a reason that Kassab relies on out-of-state case law to support his argument. No
Texas case law demonstrates that Kassab’s defense exists. Even the authority that Kassab does
discuss is distinguishable. For example, Kassab cites Alderson v. United States, 718 F. Supp. 2d
11 It is notable that Kassab primarily relies on caselaw that pre-dates Dugger, and he cites no caselaw grappling with
the implications of Dugger yet finding that the unlawful acts doctrine remains applicable.
17
1186, 1200 (C.D. Cal. 2010), for the statement that “[t]here simply cannot be any trade secret about
ongoing illegality.” See Motion for New Trial at 24; Motion for JNOV at 19. But as discussed in
prior briefing,12 the reasoning of Alderson has no application to this case. Alderson dealt with
whether the plaintiff had a protectable property interest in his knowledge of “infkormation about
ongoing illegal activities”—that is, how a Medicare fraud occurred that was lthe basis of a prior
False Claims Act action. See Alderson, 718 F. Supp. 2d at 1200. The fcacts of this case are not
analogous. Here, Pohl does not claim trade secret protection concersning how any alleged illegal
conduct was undertaken. Instead, Pohl contended, and the jurys found, that Pohl’s customer lists
and related information were entitled to trade secret protection.
Because Kassab’s supposed affirmative defenses were not legally viable, the Court did
commit error in refusing to submit them to the jury. But regardless, Kassab failed to introduce
evidence at trial sufficient to establish these deafenses. The Court should reject Kassab’s arguments
related to these defenses. 
I. A barratry finding would ehave had no legal effect, so the Court properly limited
opinion evidence on whether barratry occurred and it has no impact on causation
(Motion for New Trialf Issue #10 and Motion for JNOV Issue # 10).
As has been extensivyely argued throughout this lawsuit, an opinion on whether barratry
occurred has no bearinCg on Pohl’s right to recover on his claims. Contrary to Kassab’s repeated
protestations otherwaise, a finding that barratry occurred would not change the fact that Pohl had
an ownership infterest in his contracts and the information they contain. It would not make Pohl
any moreU or less responsible for attorneys’ fees in the barratry proceedings. Nor is it a defense to
any other aspect of Pohl’s claims. As a result, on relevance grounds alone, the Court was permitted
12 See Pohl’s Letter Brief Concerning Barratry and Pohl’s Rule 166(g) Motion at 2, filed Aug. 15, 2023; Pohl’s
Response in Opposition to the Amended Motions for Summary Judgment Filed by the Kassab Defendants at 11–12,
filed March 29, 2023.
18
to limit opinion evidence on barratry at trial. Pohl’s prior briefing on file addresses this issue in
more detail.13
Kassab’s alternative argument is that barratry defeats proximate cause. Motion for JNOV
at 34–35. Kassab did not preserve this proximate cause issue by objecting durinkg trial or at the
charge conference. But even if Kassab had not waived this issue and prolximate cause is a
necessary part of Pohl’s claims, the jury heard evidence sufficient tco establish that Kassab
proximately caused Pohl’s injuries. Some of Pohl’s damages are dirsectly linked to Kassab. For
example, the reasonable royalty and development cost damagses are directly linked to Pohl no
longer having exclusive use and control over compilations of his client information. There is a
direct causal connection between that occurring and Kassab wrongfully acquiring Pohl’s trade
secrets from Favre, who was duty-bound to keep that information confidential.
Pohl’s damages based on attorneys’ faees in separate proceedings were also proximately
caused by Kassab’s conduct. The jury heard evidence about the lengths that Kassab went to when
soliciting large numbers of people eto find a small number of people who would allege Pohl
committed barratry. He tried unfsuccessfully to solicit such people through letters sent based on
public information, but he onyly successfully obtained clients after he purchased Pohl’s trade secrets
and used them to engagCe in a mass-solicitation effort.
Finally, Kassab argues that “Pohl’s former clients’ decision to bring the barratry
proceedings wfefre a superseding or new and intervening causes of Pohl’s damages.” Motion for
JNOV at U35. But the actions of those persons were foreseeable by Kassab, as their actions to bring
suit were his specific goal and they acted with Kassab’s assistance. As a result, they were not a
13 See Pohl’s Rule 104(c) Motion Disputing the Admissibility of Lance Kassab’s Testimony as an Expert Witnesses
at 4–9, filed Aug. 4, 2023; Pohl’s Letter Brief Concerning Barratry and Pohl’s Rule 166(g) Motion, filed Aug. 15,
2023; Pohl’s Rule 166(g) Motion at 2–8, filed Nov. 30, 2022; Pohl’s Motion to Exclude or Limit the Testimony of
Defendants’ Expert Witnesses at 2–6, filed Nov. 30, 2022.
19
superseding or intervening cause. See Dew v. Crown Derrick Erectors, Inc., 208 S.W.3d 448, 452
(Tex. 2006) (stating that “the threshold, and often controlling, inquiry when distinguishing
between a concurring and a superseding cause remains ‘whether the intervening cause and its
probable consequences were such as could reasonably have been anticipated kby the original
wrongdoer.’” (citation omitted)). l
Pohl has never been found by any adjudicatory body to have ccommitted barratry. Yet
Kassab continues to state conclusively that Pohl’s supposed barratry iss responsible for every harm
Pohl suffered. That is not the case, and the Court properly impossed limits on Kassab’s attempts to
inject barratry as an issue at trial.
J. Kassab is not entitled to immunity for his tortious conduct that occurred before
the existence of an attorney–client relationship (Motion for New Trial Issues ##
11–12 and Motion for JNOV Issues ## 6–8).
Kassab argues that he is entitled to relief based on his defenses of attorney immunity,
immunity under the Texas Rules of Disciplinary Procedure, and the judicial proceedings privilege.
See Motion for New Trial at 27–29; Meotion for JNOV at 19–26. Kassab’s arguments are legally
incorrect, as demonstrated througfh f the ample briefing of these issues.14
1. Kassab’s theory oyf attorney immunity is contrary to Texas Supreme Court precedent.
Kassab complains that the jury instruction on attorney immunity used the phrase “while in
an attorney relationaship” and that the evidence showed that his use of Pohl’s trade secrets occurred
in the context off attorney–client relationships. See Motion for New Trial at 27–29; Motion for
JNOV at 23–26. Kassab argues that the Court erred by using language from the Texas Supreme
Court in the jury question. It makes no sense to object to this language when the Texas Supreme
14 See Pohl’s Rule 166(g) Motion at 12–14, filed Nov. 30, 2022; Pohl’s Response in Opposition to the Traditional
Motions for Summary Judgment Filed by the Kassab Defendants and the Nicholson Defendants & Exhibits at 27–31,
filed Sept. 12, 2022.
20
Court held that one of the two relevant inquiries for establishing attorney immunity is whether a
party demonstrates “the existence of an attorney–client relationship at the time.” Youngkin v.
Hines, 546 S.W.3d 675, 683 (Tex. 2018).
The jury rejected Kassab’s other argument—that the evidence shows his kacquisition and
use of Pohl’s trade secrets occurred in the context of attorney–client relationshlips.15 Kassab used
and disclosed Pohl’s trade secrets as part of a mass solicitation used to acttempt to sign up Pohl’s
former clients. An attorney–client relationship cannot pre-date contasct between the attorney and
a prospective client. Thus, there was no attorney–client relationsship at the time Kassab used and
disclosed Pohl’s trade secrets by soliciting people through a mass-mailing campaign.
2. Pohl’s claims accrued prior to Kassab participating in the grievance process, so Pohl’s
claims cannot be predicated on Kassab’s participation in that process.
Kassab argues that he is entitled to immulnity because he participated in filing grievances
against Pohl. See Motion for JNOV at 19–M20. But Rule 17.09 of the Texas Rules of Disciplinary
Procedure does not grant Kassab absoluote immunity for anything he does with some connection to
the grievance system. Instead, it cprovides that: “No lawsuit may be instituted against any
Complainant or witness predicated upon the filing of a Grievance or participation in the attorney
disciplinary and disability system.” TEX. RULES DISCIPLINARY P. R. 17.09. It does not provide
immunity simply because there is some connection between a case and the grievance process.
For Rule c17.09 to have any application, this lawsuit would need to have been “predicated
upon” Kassab’s involvement in the grievance process. But Pohl’s claim for misappropriation
accrued upon Kassab’s acquisition or use of Pohl’s client information, which occurred no later
than when Kassab used that client information to solicit Pohl’s clients. This undisputedly occurred
prior to any grievance being filed by Kassab. Because the claims asserted pre-date the filing or
15 See Jury Verdict, Question 6, Ex. A.
21
participation in any grievance by Kassab, this lawsuit cannot have been “predicated upon the filing
of a Grievance,” and Rule 17.09 does not apply. The Court should reject Kassab’s arguments.16
3. The judicial proceedings privilege has no application to the facts of this case.
The judicial proceedings privilege applies only to communications “in the kdue course of a
judicial proceeding,” and the privilege protects against a claim for libel or slanlder. Landry’s, Inc.
v. Animal Legal Def. Fund, 631 S.W.3d 40, 46 (Tex. 2021). Given that tche basis of Pohl’s claim
is not a communication made in the due course of a judicial proceesding, and Pohl has not sued
Kassab for libel or slander, the judicial proceedings privilege does not apply.
Kassab argues that even though Pohl’s claims do not assert claims for libel or slander, the
judicial proceedings privilege should apply because Pohl’s claims arise out of communications.
But even to the extent that Pohl’s claims relate to communications, the gravamen of Pohl’s
complaint is not reputational harm or a theory equivalent to libel or slander. Pohl suffered actual
losses as the result of Kassab’s misappropriation of Pohl’s trade secrets that occurred prior to any
proceeding existing and prior to Kasesab having an attorney–client relationship with a client who
could even initiate a relevant judifcial proceeding.
The judicial proceedyings privilege is not a get-out-jail-free card. Kassab is not free to
engage in tortious condCuct with impunity simply because that wrongful conduct eventually led to
Kassab helping brinag numerous failed judicial proceedings against Pohl. The Court should not
extend the appflication of this privilege to not only a time before the initiation of a judicial
proceedinUg but a time before a relevant attorney–client relationship existed whereby a relevant
judicial proceeding could even be contemplated.
16 See also Pohl’s Rule 166(g) Motion at 12–14, filed Nov. 30, 2022.
22
K. The Court properly allowed Pohl to present evidence of his “actual losses”
suffered as a result of Kassab’s violations of TUTSA (Motion for New Trial Issue #
13 and Motion for JNOV Issue #9(A)).
Pohl suffered losses in the form of attorneys’ fees in multiple unsuccessful separate
proceedings that Pohl may recover as “actual losses” under TUTSA. Kassab akrgues that such
damages are barred and that Pohl should not have been permitted to put forwalrd evidence of his
damages. See Motion for New Trial at 29–34; Motion for JNOV at 27–c32. However, the plain
meaning of “actual damages,” which Pohl is statutorily authorizeds to recover, supports Pohl’s
recovery. Further, the tort-of-another doctrine permits Pohl to recover fees incurred in a separate
proceeding as damages in this case.
The Court should take note that Kassab continues to cite case law in a misleading fashion
despite being on notice that he had falsely characterized cases in his briefing with the Court. For
example, Kassab cites LaCore Enterprises, LLC v. Angles, No. 05-21-00798-CV, 2023 WL
2607562, at *9 (Tex. App.—Dallas Mar. 23, 2023, no pet.) to suggest that Texas courts have
rejected the idea that “attorneys’ feees in other cases [can] be recovered as actual damages in a
trade secret claim.” See Motion fofr New Trial at 31; Motion for JNOV at 28–29 (emphasis added).
But that case did not deal wiyth attorneys’ fees from “other cases,” it dealt with the uncontroversial
proposition that fees frCom the same proceeding are not damages. LaCore, 2023 WL 2607562, at
*9. Kassab was tolda that his use of this case was inaccurate, yet he continues to cite it to the Court
in a misleading fmanner.17
PoUhl’s damages are recoverable under two alternative theories. First, the fees from other
cases constitute “actual losses” under TUTSA. Contrary to Kassab’s suggestion that these
damages are rigidly limited to specific categories, a “‘flexible and imaginative’ approach is applied
17 See Pohl’s Reply to Kassab’s Post-Hearing Letter on Pohl’s Motion for Entry of Judgment at 10 n. 6, filed Sept. 22,
2023.
23
to the calculation of damages in misappropriation-of-trade-secrets cases.” Sw. Energy Prod. Co.
v. Berry-Helfand, 491 S.W.3d 699, 710 (Tex. 2016). Second, Pohl’s damages are also recoverable
under the tort of another doctrine. Kassab relies on non-binding caselaw to suggest this doctrine
does not apply. But he ignores precedent stating otherwise. See Dixon Fin. Skervices, Ltd. v.
Chang, 325 S.W.3d 668, 678 (Tex. App.—Houston [1st Dist.] 2010, pet. dlenied) (“Equitable
principles allow the recovery of attorney’s fees as actual damages whenc a party was required to
prosecute or defend a prior legal action as a consequence of a wrongfsul act of the defendant.”).
Kassab’s recycled arguments on damages have alreadys been made to the Court. Pohl’s
prior briefing addresses the arguments in more detail.18 The Court should reject Kassab’s
arguments on this issue, many of which rely on twisting or ignoring applicable case law that
Kassab is aware of through prior briefing in this case.
L. There is sufficient evidence to supaport the jury’s various calculations of damages
(Motion for New Trial Issues ##M 14–15 and Motion for JNOV Issue #9(B)).
Kassab argues that there was “oinsufficient evidence” and “no evidence” to support the
jury’s findings of market value ancd development cost damages and that the Court improperly
allowed Pohl to provide opinion testimony. See Motion for New Trial at 34–37; Motion for JNOV
at 32–34. Even assuming Kassab’s objections on these issues were preserved at trial, Kassab’s
arguments fall short. The record supports the jury’s damages findings, and Pohl’s limited opinion
testimony on damcages was proper.
1. The jury’s findings of market value damages or reasonable royalty damages are
Usupported by evidence.
The jury heard testimony and saw evidence that supported its award of reasonable royalty
or market value damages. Kassab contends that the only evidence before the jury of the so-called
18 See, e.g., Pohl’s Reply in Support of His Motion for Entry of Final Judgment at 9–12, filed Sept. 18, 2023; see also
Pohl’s Reply to Kassab’s Post-Hearing Letter on Pohl’s Motion for Entry of Judgment at 4–5, filed Sept. 22, 2023.
24
market value of Pohl’s trade secrets was evidence of the “purchase price” Kassab paid to obtain
them. See Motion for New Trial at 35; Motion for JNOV at 33. But that is not true.
Pohl provided competent opinion testimony as the owner of the relevant property on the
market value of his trade secrets. His opinion was informed by not only the cost tok Pohl to obtain
the relevant trade secrets, but also multiple attempts to purchase the property alnd an actual sale of
the property that was contemporaneous with the misappropriation of Pohlc’s trade secrets. See Red
Sea Gaming, Inc. v. Block Investments (Nevada) Co., 338 S.W.3d 5s62, 572–73 (Tex. App.—El
Paso 2010, pet. denied) (showing it is appropriate for a propesrty owner to consider unaccepted
offers to purchase the property, knowledge of the relevant market, and the price at which the sale
of property occurred).
Contrary to Kassab’s assertions, it was proper for Pohl to provide this opinion testimony
under the property owner rule. Binding preceadent confirms the property owner rule applies even
when dealing with intangible property. See Custom Transit, L.P. v. Flatrolled Steel, Inc., 375
S.W.3d 337, 352 (Tex. App.—Housteon [14th Dist.] 2012, pet. denied) (citations omitted). And
though it may be more difficult tof put a value on Pohl’s trade secrets, that is not a per se bar to his
opinion testimony. See Jabryi v. Alsayyed, 145 S.W.3d 660, 667 (Tex. App.—Houston [14th Dist.]
2004, no pet.) (allowiCng a property owner to testify regarding the market value of business
goodwill, which is intangible property). Pohl was properly permitted to present evidence on this
issue, and the jfufry was free to weigh the bases for his opinions.
TUhe jury also saw documentary evidence relevant to the price a willing buyer would pay
for Pohl’s trade secrets. The Favre affidavit discussed multiple offers to buy Pohl’s trade secrets
and that the information could be sold multiple times. The jury also saw a document a federal
judge described as a contract to purchase Pohl’s trade secrets. That document not only had a lump
25
sum price, but it also provided for continuing payments under the contract. Finally, the jury also
heard testimony from Kassab personally that went to the value he placed on Pohl’s trade secrets at
the time he purchased the trade secrets.
2. The jury’s development cost damages are supported by evidence. k
Kassab suggests that no evidence exists to support the jury’s award ofl development cost
damages, but he ignores the multiple categories of evidence admitted at trcial. See Motion for New
Trial at 35–36; Motion for JNOV at 33–34. One such category is Kasssab’s testimony and related
evidence that Kassab proffered to suggest that he did not need to purchase Pohl’s trade secrets.
The jury was permitted to weigh this evidence, and the evidence is sufficient to support the jury’s
award of development cost damages.
Kassab testified and claimed that he did not need to purchase Pohl’s trade secrets because
he could independently gather contact information for Pohl’s clients. The jury heard and saw
evidence concerning the time Kassab’s office expended to compile contact information to send a
small number of initial advertisemenet letters in 2015. The jury also saw evidence of the hourly
rates for Lance and David Kassabf.
The jury was free toy look at this evidence and conclude that if Kassab had the names of
Pohl’s clients, but notC the contact information, $200,000 was the value of the avoided costs to
Kassab. He avoideda the need to manually research and compile contact information (the jury saw
evidence that thfis required sending the same letter to multiple alternative addresses) by instead
obtainingU accurate contact information from Pohl’s attorney–client contracts. Even if Kassab
preserved this objection on this issue, he failed to demonstrate that the jury’s finding is unsupported
by the trial record.
26
M. The jury properly found that Kassab engaged in a willful and malicious
misappropriation of Pohl’s trade secrets (Motion for New Trial Issue #16).
Contrary to Kassab’s assertion, the jury unanimously found that Kassab engaged in a
“willful and malicious” misappropriation by “clear and convincing evidence.”19 And the
testimony and documentary evidence shown to the jury at trial constituted “clearr and convincing
evidence of outrageous, malicious, or otherwise reprehensible conduct” by Kassab that supports a
finding of exemplary damages based on malice.20 See Horizon Health Croirp. v. Acadia Healthcare
Co., Inc., 520 S.W.3d 848, 867 (Tex. 2017). D
Kassab dismissively suggests that there are only two castegories of evidence relevant to this
issue. While there was ample evidence on these issues prresented at trial, one of the categories of
evidence that Kassab highlights demonstrates that the evidence supports the jury’s finding of
malice. Contrary to what Kassab may think, the levidence showing that Kassab filed “a grievance
against Pohl and cop[ied multiple] news ouMtlets and the District Attorney” is highly probative of
malice. See Motion for New Trial at 39o.
First, Kassab downplays thec scope of his conduct. While Kassab may have personally only
filed a single grievance against Pohl, he was involved in drumming up seven failed grievances
against Pohl. Even after Kassab was aware that the grievances Kassab assisted in bringing were
without merit, Kassab filed another grievance that reasserted previously rejected allegations of
wrongdoing againcst Pohl.
Not content with attacking Pohl through the grievance process and court system, Kassab
also sought to destroy Pohl and his reputation publicly and within the professional community of
Texas lawyers. After filing a meritless grievance based partially on conduct already found to not
19 See Jury Verdict, Question 17 (instructing jury that to respond “Yes,” jury’s “answer must be unanimous.”), Ex. A.
20 Here, for the relevant conduct, Mr. Kassab acted on behalf of his firm at all times. Thus, the evidence is equally
applicable to Mr. Kassab and his law firm.
27
constitute ethical violations, Kassab took the unprecedented step of publicizing the unreviewed
grievance to the Texas Attorney General, the Harris County District Attorney, the Houston
Chronicle, The Texas Lawyer, and a then-candidate for Texas State Bar President. The jury saw
this evidence and heard about the unprecedented nature of Kassab publicizing a gkrievance in this
manner. This is evidence the jury could view as clearly demonstrating lKassab wanted to
improperly inflict unnecessary pain, inconvenience, public shame, and mconetary cost on Pohl.
Kassab argues the “evidence is further insufficient because Poshl ‘adduced no evidence that
[Kassab] caused [Pohl] an injury independent of and qsualitatively different than the
misappropriation itself.’” Motion for New Trial at 40 (alterations in original) (citation omitted).
But the Texas Supreme Court said that “this type of malice might exist ‘where the employer
circulates false or malicious rumors about the employee before or after the discharge ... or actively
interferes with the employee's ability to find otaher employment.’” Safeshred, Inc. v. Martinez, 365
S.W.3d 655, 662 (Tex. 2012), as corrected (June 8, 2012) (cleaned up). That is analogous to the
situation here. Kassab sought to infliect reputational harm on Pohl outside the litigation process.
Other evidence showed tfhe jury that Kassab was willing to go to great lengths to target
Pohl. For example, undery the guise of a phony expert witness agreement, Kassab secretly
purchased Pohl’s clienCt files and trade secrets for his own benefit. He then lied saying it was not
a purchase agreement—including lying to the jury’s faces—despite a federal judge saying it was
a purchase agrefefment. The jury also saw that, in that agreement, Kassab was willing to indemnify
Favre agaUinst claims related to the disclosure of Pohl’s client information. This demonstrated
Kassab’s knowledge of the breach of client confidentiality and duty of confidentiality owed by
Favre when he acquired Pohl’s trade secrets.
28
The jury saw evidence of Kassab’s conduct towards Pohl beyond merely misappropriating
Pohl’s trade secrets. Kassab attacked Pohl and tried to destroy him professionally and personally.
The jury was empowered to consider this, and other evidence, and form a firm conviction that
Kassab acted with malice towards Pohl when he misappropriated Pohl’s trade secrkets.
N. The jury properly awarded exemplary damages against KassabC (lMotion for New
Trial Issue #17 and Motion for JNOV Issue #12). 
The jury unanimously awarded Pohl exemplary damages againr ist Kassab after receiving
considerable evidence regarding the blatant and offensive nature Dof Kassab’s wrongful conduct.
Kassab’s argument otherwise ignores the testimony at trial asnd impermissibly assumes that the
jury ignored the Court’s instructions to only award exemplrary damages if the jury were unanimous
in finding such damages proper.
Pohl previously responded to Kassab’s arglument that the jury was not unanimous with the
necessary findings to support an award of Mexemplary damages. See Pohl’s Reply in Support of
His Motion for Entry of Final Judgmeont at 2–8, filed Sept. 18, 2023; see also Pohl’s Reply to
Kassab’s Post-Hearing Letter on Pochl’s Motion for Entry of Judgment at 1–4, filed Sept. 22, 2023.
Pohl will not reiterate those recently briefed issues here and instead relies on his prior briefing.
Kassab’s factually sufficiency arguments also fall short. The jury’s award of exemplary
damages complies with the statutory requirement that exemplary damages not exceed twice the
amount of actualc damages. Here, the jury found that Pohl suffered over $2 million in actual
damages, so t o he jury’s award of $3 million in exemplary damages is proper.21
The remainder of Kassab’s factual argument relies on him making the conclusory assertion
that “the jury probably considered improper items of alleged damages in assessing exemplary
damages.” See Motion for New Trial at 41. But Kassab ignores evidence that went to multiple
21 See Jury Verdict, Question 7, Ex. A.
29
factors relevant to an award of punitive damages, and he ignores the potential scenario where the
jury simply disagreed with him on what the evidence at trial suggested. For example, Kassab does
not give any weight to the evidence at trial that showed Kassab’s malice. See supra Part IV(M).
The jury saw evidence that despite the various persons involved, Kassab bore perskonal culpability
for the wrongful conduct as the person orchestrating the conspiracy against Pohll. Kassab also lied
to the jury by misrepresenting the nature of his contract to purchase Pohl’cs trade secrets.
Finally, the jury saw other evidence relevant to establishing thast Kassab’s conduct offended
a public sense of justice and propriety. Kassab holds himself oust as someone who upholds ethical
rules and ensures lawyers act honestly. He proudly professes that he is aware of the ethical duties
of lawyers. The jury saw this evidence, and they also saw evidence of Kassab acting unethically
and deceitfully—he improperly accessed another lawyer’s confidential client information—in
orchestrating a scheme to misappropriate Pohal’s trade secrets and harass Pohl personally.
Kassab’s suggestion that none of the evidence supported the factors weighed in awarding
exemplary damages is belied by the etrial record. The jury was well within its rights to find that
the record supported an award off $3 million in exemplary damages against Kassab.
O. Pohl’s conspiracyy claim was not preempted (Motion for New Trial Issue #18 and
Motion for JNOV Issue #11).
The Court has previously ruled that Pohl’s conspiracy claim is not preempted. Kassab
argues that TUTScA conflicts with and preempts Pohl’s conspiracy claim. See Motion for New
Trial at 41–43; Motion for JNOV at 35–36. Kassab’s argument is inconsistent with his position
that proportionate responsibility applies to the TUTSA claim, and he does not address that
inconsistency. Kassab’s argument was rejected by the Court before, and the Court should reject it
again.
30
As discussed in Pohl’s prior briefing,22 after Texas adopted TUTSA, Texas trial courts
continued to submit TUTSA and conspiracy claims to the jury. This is because conspiracy, like
proportionate responsibility, does not provide a conflicting remedy that is preempted under
TUTSA. Pohl’s TUTSA claim provides the remedy—damages for misappropriatikng Pohl’s trade
secrets. Conspiracy makes the same remedy apply jointly and severallly among multiple
defendants. That is no more objectionable or inconsistent with TUTSAc than the proportionate
responsibility statute—which Kassab argues is applicable—that smodifies the remedy so a
defendant is responsible for a percentage of the harm. s 
Because there is no conflict between TUTSA and the joint and several liability imposed by
a finding of conspiracy, the Court properly submitted Pohl’s conspiracy claim to the jury. Kassab’s
arguments otherwise are inconsistent with his position on the applicability of proportionate
responsibility, and the Court should deny Kaassab’s request for a new trial or to set aside the
judgment on these grounds. 
P. The Court properly deniede Kassab’s request to designate non-relevant persons as
responsible third parties (Motion for New Trial Issue #19).
The Court properly denied Kassab’s request to designate five additional persons as
responsible third parties after Kassab failed to plead sufficient facts demonstrating their liability.
Despite being given the opportunity to re-plead and satisfy his pleading burden, Kassab chose not
to comply with thce legal standard to designate these persons as responsible third parties, and the
Court properly denied his request to designate additional responsible third parties as a result.
Kassab first attempted to designate the five people at issue as responsible third parties in
early 2022.23 Pohl objected because Kassab failed to plead sufficient facts showing the alleged
22 See Pohl’s Reply in Support of His Motion for Entry of Final Judgment at 13–15, filed Sept. 18, 2023; see also
Pohl’s Reply to Kassab’s Post-Hearing Letter on Pohl’s Motion for Entry of Judgment at 6, filed Sept. 22, 2023.
23 See generally Kassab’s Motion to Designate Responsible Third Parties, filed May 13, 2022.
31
responsible third parties were responsible for the harms underlying Pohl’s claims.24 The 189th
District Court agreed with Pohl’s objections and denied Kassab’s motion.25 Later that year, Kassab
filed two supplemental motions to designate responsible third parties. Pohl did not oppose
designating certain persons listed in Kassab’s second supplemental motion as reksponsible third
parties. However, in Kassab’s first supplemental motion, Kassab sought to dlesignate the same
five people as responsible third parties that were at issue in his first moticon and that Kassab now
complains about in his Motion for New Trial. s
Pohl filed a response in opposition to Kassab’s second attsempt to designate the five relevant
people as responsible third parties.26 Despite the 189th District Court finding that Kassab failed
to meet the pleading standard—which required Kassab to plead sufficient facts showing that the
alleged responsible third parties were responsible for the harms underlying Pohl’s claims—Kassab
pled the same facts. Kassab tried to disguisea this fact by reordering and lightly paraphrasing or
modifying the allegations.27 In such circumstances, it was not an abuse of this Court’s discretion
to deny Kassab’s Supplemental Motieon to Designate Responsible Third Parties.
The Court’s decision to dfeny Kassab’s motion was proper on other grounds as well. For
example, the limitations periyods on Pohl’s torts claims passed with respect to the persons at issue,
and Kassab failed to coCmply with his obligations “to timely disclose that the[se] person[s] may be
designated as a responsible third party under the Texas Rules of Civil Procedure.” See TEX. CIV.
PRAC. & REM. fCf ODE § 33.004(d). Because Kassab’s responses to Pohl’s requests for disclosure
24 See generally Pohl’s Objection to Kassab’s Motion to Designate Responsible Third Parties, filed May 31, 2022.
25 See Court Order, dated Oct. 31, 2022 (denying Kassab’s first motion to designate responsible third parties).
26 See generally Pohl’s Objection to Kassab’s Supplemental Motion to Designate Responsible Third Parties, filed Nov.
30, 2022.
27 See id. at 3–5 (discussing how Kassab failed to plead any new substantive factual allegations).
32
did not include the necessary information, this was an independent basis to not designate the
persons at issue as responsible third parties. See In re Dawson, 550 S.W.3d 625, 630 (Tex. 2018).
Q. The Court properly exercised its discretion to not abate this case (Motion for New
Trial Issue #20).
In the fall of 2022, Kassab filed his Motion to Abate. The 189th Districrt Court correctly
found that abatement of this case was not proper or necessary. Kassab then sought reconsideration
of that ruling from this Court, and the Court exercised its discretion anrdi denied Kassab’s request
to abate this case. Kassab’s arguments for why this lawsuit shoulDd have been abated pending the
resolution of another lawsuit were not squarely presenteds in his prior motion requesting
abatement.28 Even if Kassab’s arguments were not waiverd, the Court properly chose not to abate
this case before,29 and Kassab’s two current arguments do not demonstrate it was an abuse of this
Court’s discretion to deny his request for abatemelnt.
First, Kassab claims that “the outcomMe of Cheatham could alter the course of this litigation
because if it resulted in a judgment agaoinst Pohl for barratry, Pohl could not have argued that all
the barratry claims brought against hcim were frivolous.” Motion for New Trial at 45. But barratry
is not a defense to Pohl’s claims. In each of the other cases and grievances alleging barratry,
Kassab failed to obtain a finding of barratry against Pohl. But even if there were eventually a
liability finding against Pohl in Cheatham, it would not have changed Pohl’s right to recover on
his claims in this clawsuit.30
Second, Kassab argues that abatement was proper because Pohl’s damages in this case
involved Pohl’s attorneys’ fees from Cheatham, “[b]ut if Pohl had been found liable for barratry
28 Compare Motion for New Trial at 44–45, with Kassab’s Motion to Abate Trial Setting at 1–5, filed Sept. 6, 2022,
and Kassab’s Motion to Reconsider or Rule at 2, filed Feb. 23, 2023,
29 See Plaintiff’s Response to Kassab’s Motion to Abate Trial Setting, filed Sept. 15, 2022; see also Plaintiffs’
Response in Partial Opposition to Kassab’s Motion to Reconsider or Rule at 3, filed March 8, 2023.
30 See also Pohl’s Letter Brief Concerning Barratry and Pohl’s Rule 166(g) Motion, filed Aug. 15, 2023; Pohl’s Rule
166(g) Motion at 2–8, filed Nov. 30, 2022.
33
in Cheatham, then he would have been required to pay attorney’s fees to the plaintiffs in that case.”
See id. This, again, has no materiality to the issues in this case. Kassab’s hypothetical world, in
which Pohl paid third parties for their attorneys’ fees in Cheatham, does not impact whether
Kassab is liable in this lawsuit for Pohl’s attorneys’ fees in Cheatham. Kassab isk conflating two
separate categories of attorneys’ fees. This does not provide a basis for abatelment and certainly
does not establish that the Court abused its discretion in denying Kassab’cs request for abatement.
R. Pohl did not waive the attorney–client privilege throughs offensive use, and he
presented proper evidence of his fees (Motion for New Trial Issues #21 & #23).
Kassab makes two types of arguments related to prsivilege and attorneys’ fees. First,
Kassab argues that the offensive use doctrine applies, anrd Pohl waived privilege with respect to
multiple categories of privileged information related to Billy Shepherd. Motion for New Trial 45–
47. Second, Kassab argues that Pohl’s evidence alt trial concerning attorneys’ fees was conclusory
and improperly redacted. Id. at 49–54. KaMssab’s arguments do not survive scrutiny.
As a threshold point, Kassab’s ocaselaw recognizes that “attorney invoices are routinely
redacted when offered into evidencce to protect attorney–client and work-product privileges.”
KBIDC Investments, LLC v. Zuru Toys Inc., No. 05-19-00159-CV, 2020 WL 5988014, at *22 (Tex.
App.—Dallas Oct. 9, 2020, pet. denied). See Motion for New Trial at 53 (citing KBIDC). Despite
citing this case law, Kassab wrongly suggests that such redactions are per se inappropriate.
1. Kassacb did not establish the applicability of offensive use waiver.
Pohl doid not engage in offensive use that could waive the attorney client privilege because
he did not improperly use or take advantage of privileged materials to support his claims. The
Texas Supreme Court established a three-part test for offensive use waiver that required Kassab to
establish (1) Pohl sought affirmative relief that implicated privileged materials; (2) the withheld
privileged materials would be outcome determinative; and (3) disclosure of the privileged
34
materials is the only way to obtain the evidence. See Republic Ins. Co. v. Davis, 856 S.W.2d 158
(Tex. 1993); see also In re Microvast, Inc., No. 01-18-00049-CV, 2018 WL 4131068, at *5 (Tex.
App.—Houston [1st Dist.] Aug. 30, 2018, no pet.).
Kassab never established the three relevant factors to show offensive usek waiver. Thus,
the Court properly declined to compel the production of privileged materials.l It is worth noting
that Mr. Shepherd became a witness in this case at Kassab’s request. Kcassab subpoenaed Billy
Shepherd’s deposition and documents in this case and then designasted Mr. Shepherd as a trial
witness in November 2022. Mr. Shepherd complied with Kassabs’s subpoena—he produced nearly
a half million pages of documents and was deposed at Kassab’s request. Kassab was not happy
with the voluminous information he requested, so he filed a motion to compel.31
Kassab wanted the 189th District Court to overrule privilege objections, require the
production of additional documents, and requaire the production of unredacted invoices. But the
record was clear that Kassab sought to pierce privilege to obtain discovery about the mental
impressions of his opposing counsel ein a different lawsuit and engage in a fishing expedition in
the hopes that privileged communfications and documents would be relevant to his defenses. Pohl
responded and pointed out tyhat Kassab failed to carry his burden to establish the applicability of
the offensive use doctrCine.32 This Court agreed when it properly rejected Kassab’s prior request
to reconsider this ruling.
Kassabf aflso failed to demonstrate that the offensive use doctrine applied at trial. Redaction
of invoicUes is common, and Kassab could not articulate any specific examples of over-redaction
31 Kassab’s Motion to Compel Testimony & Documents Pursuant to the Offensive Use Doctrine, filed Sept. 20, 2022.
32 See Plaintiffs’ Response in Opposition to the Kassab Defendants’ Three New Motions to Compel, at 7–16, filed
Sept. 27, 2022.
35
to the Court that were inappropriate. See KBIDC Investments, 2020 WL 5988014, at *22. As a
result, the Court properly allowed Pohl to submit appropriately redacted invoices at trial.
2. Pohl’s evidence of attorneys’ fees was proper and factually sufficient.
Kassab argues that Pohl presented insufficient evidence of attorneys’ fees ikn this lawsuit at
trial because Pohl used redacted invoices, and Kassab contends that certain exlpert testimony was
conclusory. The issue of redacted invoices was discussed at trial, acnd the Court found the
redactions appropriate. Kassab’s other argument is his unsupportsed assertion that the expert
testimony supporting fees was conclusory. Neither argument has merit.
Kassab cherry-picked redacted entries from Pohl’s invoices, but he did not demonstrate
that any such redactions were material or improper. He also does not account for the fact that
Pohl’s attorneys’ fees expert applied a blanket discount to the fees reflected in the redacted
invoices. In addition to excluding certain invoice entries entirely, in reaching an opinion on the
amount of reasonable attorneys’ fees, Pohl’s expert applied a 10% discount to the total amount of
fees to account for any unnecessarye or unrecoverable entries on the fee invoices that were not
otherwise removed. To the extenft that some entries were arguably over-redacted, such an issue is
harmless when a substantialy blanket deduction is applied like it was here. For the same reason,
although the conversioCn and TUTSA claims were intertwined, any time entries that advanced only
the conversion claima were resolved by this blanket, catch-all deduction.
Finally, fKassab’s contention that Mr. Zavitsanos’s testimony was conclusory is without
evidentiaUry support. When Mr. Zavitsanos’s testimony was fresh in the Court’s recollection, the
Court found his testimony sufficient to submit the issue of attorneys’ fees to the jury. Kassab’s
argument to the contrary lacks any evidentiary support. Pohl contends that the record will show
that Mr. Zavitsanos’s testimony was not conclusory and that he provided “opinion testimony about
36
the services [he] reasonably believes will be necessary to defend the appeal and a reasonable hourly
rate for those services.” See Yowell v. Granite Operating Co., 620 S.W.3d 335, 355 (Tex. 2020).
Additionally, the case law that Kassab cites is inapplicable to the circumstances of this
case. Kassab cites Desio v. Del Bosque, No. 05-21-00022-CV, 2022 WL 50002k5 (Tex. App.—
Dallas Feb. 18, 2022, no pet.) on the issue of conclusory evidence. Motion folr New Trial at 53.
But that case dealt with a fee affidavit where the attorney “did not specifyc the amount of time any
person spent on particular tasks and no billing records were submitteds.” Desio, 2022 WL 500025,
at *2. At trial, Pohl provided precisely this type of evidence to sthe jury. The Court should reject
Kassab’s unsupported objection to the sufficiency of the evidence on attorneys’ fees.
S. The 189th District Court properly dismissed Kassab’s counterclaim for civil
barratry (Motion for New Trial Issue #22).
Before this case was transferred to the lCourt, Kassab asserted counterclaims for civil
barratry against Pohl. Despite asserting coMunterclaims for barratry, Kassab tried to withhold the
identity of who assigned him barratry oclaims—and thus, he withheld information on who Pohl
allegedly committed barratry againsct. After seeking to compel production of this basic information
about Kassab’s counterclaims, Pohl learned that Kassab’s counterclaims were assigned claims
from Kassab’s clients, and those same claims were also asserted in a separate still-pending lawsuit.
Once Pohl learned that the counterclaims were the same claims asserted in another lawsuit,
he quickly discovcered that there was already a judgment in his favor on those claims at the trial
court level, although the claims were still part of an ongoing appeal. Despite his duties as a lawyer
in both this lawsuit and the other lawsuit involving the same barratry claims, Kassab did not notify
the courts involved of his duplicative assertion of the barratry claims in a separate lawsuit. After
uncovering Kassab’s inappropriate behavior with these counterclaims, Pohl moved for summary
37
judgment on multiple grounds, and the 189th District Court properly dismissed Kassab’s
counterclaims.33
First, it was undisputable that Kassab’s counterclaims were the very same claims as those
resolved by prior final judgments on the merits. Res judicata applies to such claimks, and the prior
judgments dismissing those barratry claims precluded Kassab from re-litigatinlg them through his
counterclaim in this lawsuit. Kassab’s argument otherwise relies on a ccase that “addressed the
issue of whether res judicata can bar a subsequent suit on a cause of acstion that was not recognized
until after judgment was rendered in the first suit.” Marino v. sState Farm Fire & Cas. Ins. Co.,
787 S.W.2d 948, 949 (Tex. 1990). That has no application to the facts of this case, where claims
existed and were directly ruled on in a prior proceeding.
Second, Kassab argues that limitations on the counterclaims were tolled by section 16.069
of the Civil Practice and Remedies Code. Tahis issue should not be reached because the claims
were barred by res judicata. But even if the Court reaches this issue, the counterclaims do not
meet the requirements of section 16.0e69 because they do not arise out of the same transaction or
occurrence as Pohl’s claims, andf Kassab did not give fair notice of the facts giving rise to the
counterclaims within the 30y-day period prescribed by section 16.069. Kassab did not give fair
notice of the claims inC part because he concealed the identity of who assigned him the claims to
avoid disclosing tha a t his claims had been asserted and ruled on against him in a separate lawsuit.34
Third, af fclaim for civil barratry is a punitive statutory claim that is not expressly assignable.
Kassab pUrocured the assigned claims from his then-current clients to evade the statute of
33 See Pohl’s Motion for Summary Judgment on Defendants’ Counterclaims, filed Dec. 7, 2021; see also Pohl’s Reply
in Support of His Motion for Summary Judgment on Defendants’ Counterclaims, filed Feb. 4, 2022.
34 This issue is discussed in more detail in the original briefing. See Pohl’s Motion for Summary Judgment on
Defendants’ Counterclaims at 11–12; see also Pohl’s Reply in Support of His Motion for Summary Judgment on
Defendants’ Counterclaims at 6–7.
38
limitations and in violation of ethical rules concerning attorney–client transactions. As authorized
by the Texas Supreme Court, the 189th District Court was empowered to refuse to recognize the
assignments, as “assignments may be invalidated on public policy grounds.” See Sw. Bell Tel. Co.
v. Mktg. on Hold Inc., 308 S.W.3d 909, 916 (Tex. 2010); see also PPG Indus., Inc. vk. JMB/Houston
Centers Partners Ltd. P’ship, 146 S.W.3d 79, 87 (Tex. 2004) (“[T]he assignabillity of most claims
does not mean all are assignable; exceptions may be required due to equicty and public policy.”).
Kassab’s counterclaims for barratry were barred for multiple sreasons. After reviewing the
evidence submitted by the parties, the 189th District Cousrt correctly dismissed Kassab’s
counterclaims. That ruling should not be disturbed now, after trial, and after a jury reached a
verdict.
V. CONyCLUSION
For the foregoing reasons and the reasons stated in Pohl’s prior briefing—which is
incorporated fully herein by reference—Plaintiffs Michael Pohl and Law Offices of Michael A.
Pohl respectfully request that the Ceourt deny Kassab’s Motion for New Trial and Motion for
JNOV. f
39
Dated: February 2, 2024 Respectfully submitted,
REYNOLDS FRIZZELL LLP
By: /s/ Jean C. Frizzell
Jean C. Frizzell
State Bar No. 07484650 k
1100 Louisiana St., Suite 3500 e
Houston, Texas 77002 l
Tel. 713.485.7200
Fax 713.485.7250 c
jfrizzell@reynoldsfrizzell.rcom
Attorney for PlaintifDfs Michael Pohl
and Law Office of Michael A. Pohl, PLLC
CERTIFICATE OF SERrVICE
I hereby certify that a true and correct copy of this document was served on all counsel of
record pursuant to the Texas Rules of Civil Procedure on this 2nd day of February, 2024.
M /s/ Jean C. Frizzell
 Jean C. Frizzell
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.
Suni Blue on behalf of Jean Frizzell
Bar No. 7484650
sblue@reynoldsfrizzell.com r
Envelope ID: 84110431
Filing Code Description: No Fee Documents
Filing Description: Pohl's Response to MNT JNOV t
Status as of 2/2/2024 4:54 PM CST i
Case Contacts D
Name BarNumber Email e TimestampSubmitted Status
Harris Wells hwells@reynoldsfrizzell.com 2/2/2024 4:44:54 PM SENT
Andrew Johnson ajohnson@Bthompsoncoe.com 2/2/2024 4:44:54 PM SENT
Benjamin Ritz britz@thnompsoncoe.com 2/2/2024 4:44:54 PM SENT
Murray JFogler mfoglielr@foglerbrar.com 2/2/2024 4:44:54 PM SENT
Murray Fogler mfogler@fbfog.com 2/2/2024 4:44:54 PM SENT
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 2/2/2024 4:44:54 PM SENT
Dale Jefferson 10607900jefferson@mdjwlaw.com 2/2/2024 4:44:54 PM SENT
Raul Herman Suazo 24003021 suazo@mdjwlaw.com 2/2/2024 4:44:54 PM SENT
Kevin Graham Cain 2O4012371 cain@mdjwlaw.com 2/2/2024 4:44:54 PM SENT
Todd Taylor y ttaylor@jandflaw.com 2/2/2024 4:44:54 PM SENT
Scott M.Favre o scott@favrepa.com 2/2/2024 4:44:54 PM SENT
Lawyer Wade lawyerwade@hotmail.com 2/2/2024 4:44:54 PM SENT
Chris C.Pappas cpappas@krcl.com 2/2/2024 4:44:54 PM SENT
Non-Party Witness Bfilily Shepherd bshepherd@spcounsel.com 2/2/2024 4:44:54 PM SENT
Non-Party Dona Pohl DonaLyann@yahoo.com 2/2/2024 4:44:54 PM SENT
Non-Party Edgar Jaimes edgarsroom@gmail.com 2/2/2024 4:44:54 PM SENT
Kevin Dubose 6150500 kdubose@adjtlaw.com 2/2/2024 4:44:54 PM SENT
Marisa Barrera Cruz Hurd 24041157 mhurd@adjtlaw.com 2/2/2024 4:44:54 PM SENT
Andrea Mendez andrea@kassab.law 2/2/2024 4:44:54 PM SENT
Lance Kassab lance@kassab.law 2/2/2024 4:44:54 PM SENT
David Kassab david@kassab.law 2/2/2024 4:44:54 PM SENT
Nicholas Pierce nicholas@kassab.law 2/2/2024 4:44:54 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.
Suni Blue on behalf of Jean Frizzell
Bar No. 7484650
sblue@reynoldsfrizzell.com r
Envelope ID: 84110431
Filing Code Description: No Fee Documents
Filing Description: Pohl's Response to MNT JNOV t
Status as of 2/2/2024 4:54 PM CST i
Case Contacts D
Nicholas Pierce nicholas@kassab.law 2/2/2024 4:44:54 PM SENT
Lance Kassab eserve@kassab.law 2/2/2024 4:44:54 PM SENT
D Kassab david@kasBsab.law 2/2/2024 4:44:54 PM SENT
L Kassab lance@knassab.law 2/2/2024 4:44:54 PM SENT
Kelly Skelton recepitlion@kassab.law 2/2/2024 4:44:54 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 2/2/2024 4:44:54 PM SENT
Thallia Malespin tmalespin@reynoldsfrizzell.com 2/2/2024 4:44:54 PM SENT
Misty Davis mdavis@reynoldsfrizzell.com 2/2/2024 4:44:54 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 2/2/2024 4:44:54 PM SENT
David Kassab O david@kassab.law 2/2/2024 4:44:54 PM SENT
Harris Wells y hwells@reynoldsfrizzell.com 2/2/2024 4:44:54 PM SENT
Harris Wells o hwells@reynoldsfrizzell.com 2/2/2024 4:44:54 PM SENT"
68,2024-02-02,RSP,Pohl,Response to Mtn to Modify Judgment,"Pohl's Response to Kassab's Motion to Modify, Correct, or Reform Judgment, arguing all arguments are recycled and rejected, the jury properly awarded exemplary damages unanimously (Q17 answered per unanimity instructions, Q19 predicated on unanimous Q17, Kassab waived by not objecting before discharge), attorneys' fees from separate proceedings are recoverable actual losses under TUTSA's broad 'actual loss' definition and tort of another doctrine, damages are not duplicative (TUTSA expressly authorizes both actual loss and unjust enrichment), conspiracy is not preempted (it is a rule of joint liability, not an independent tort or conflicting remedy), and great-weight-and-preponderance arguments are meritless","Response filed February 2, 2024, opposing Kassab's Motion to Modify, Correct, or Reform Judgment. Filed simultaneously with Pohl's response to the JNOV and New Trial motions. Incorporates prior briefing by reference.",POST-2,N/A,Phase 5,2024-02-02_RSP_Pohl-Response-to-Kassab-Mtn-to-Modify-Judgment_FILED.pdf,"Denial of Kassab's Motion to Modify, Correct, or Reform Judgment, and any other relief to which Pohl is entitled","2/2/2024 4:20 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 84108335
By: Patricia Gonzalez
Filed: 2/2/2024 4:20 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et. al § IN THE DISTRICT COURT OF
Plaintiffs, §
V. § HARRIS COUNTY,k TEXAS
§ e
LANCE CHRISTOPHER § C l
KASSAB, et. al § 
§ c
Defendants. § 281ST JUDrICIAL DISTRICT
POHL’S RESPONSE TO KASSAB’S
MOTION TO MODIFY, CORRECT, OR REFsORM JUDGMENT
Plaintiffs Michael A. Pohl and Law Office of Michael A. Pohl, PLLC (collectively “Pohl”)
respond in opposition to Defendants Lance Christopher Kassab’s and Lance Christopher Kassab,
P.C. d/b/a The Kassab Law Firm’s (collectively “Kassab”) motion to modify, correct, or reform
the judgment (“Motion to Modify”). a
I. Summary. 
The Motion to Modify primareily consists of recycled arguments that Kassab has previously
made and that the Court has prefviously rejected. On that ground alone, the motion should be
denied. y
Substantively, CKassab re-argues in shotgun fashion that all of the damages found by the
jury and awarded bay the Court are not recoverable for various erroneous reasons. As Pohl has
previously brieffed at length, however, both the actual damages and exemplary damages are
reasonablUe and fully supported by the verdict, the evidence, and the law. For these and other
reasons that we discuss next, the Motion to Modify should be denied.
II. The Jury Properly Awarded Exemplary Damages, and Pohl is Entitled to Recover
Them.
Kassab contends that the award of exemplary damages is unsupported and improper
because the jury allegedly did not unanimously answer “Yes” in response to Question 17. See
Motion to Modify, p. 4. But that is not true. On its face, the jury charge shorws that the jury
unanimously answered “Yes” to Question 17 after being instructed to only answer the question
“Yes” if the finding was unanimous. See Charge of the Court, p. 24. Irfi Kassab believed that the
certificate of unanimity was in conflict with the answers containDed in the jury verdict, he was
obligated to request that the jury be polled but did not do so. s In short, there is no conflict in the
answers, but even if there were, Kassab waived it. r
“The jury is presumed to have followed the court’s instructions.” Columbia Rio Grande
Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 86l2 (Tex. 2009). When possible, a court “must”
“reasonably construe the [jury’s] findings inM a way that harmonizes them.” USAA Tex. Lloyds Co.
v. Menchaca, 545 S.W.3d 479, 509 (Teox. 2018); Bender v. S. Pac. Transp. Co., 600 S.W.2d 257,
260 (Tex. 1980). Failure to reconccile answers in favor of the jury’s verdict when possible is
reversible error. Luna v. Southern Pacific Transp. Co., 724 S.W.2d 383, 384 (Tex. 1987). Even
where the jury findings are ambiguous or unclear, the court must try to interpret the findings so as
to uphold the verdict.  Jackson v. U.S. Fid. & Guar. Co., 689 S.W.2d 408, 412 (Tex. 1985). When
a party contends cthat a jury’s award of exemplary damages is not supported by a unanimous jury
finding, it is reviewed as a “no evidence” point. Redwine v. Peckinpaugh, 535 S.W.3d 44, 50 (Tex.
App.—Tyler 2017, no pet.).
Here, it is clearly apparent that the jury made the required unanimous findings to support
the award of exemplary damages. First, the fact that the jury answered “Yes” in response to
Question 17 in-and-of-itself shows that its finding was unanimous because the Court instructed
the jury that it could only answer “Yes” to Question 17 if its answer was “unanimous.” See Charge
of the Court, p. 24. Second, the fact that the jury awarded exemplary damages in response to
Question 19 also shows that the jury answered Question 17 unanimously. Id. at p. 26. The Court
instructed the jury that it could only answer Question 19 if it “unanimously anskwered ‘Yes’ to
Question No. 17 or Question No. 18.” Id. The jury did not answer Question 1l8. Id. at p. 25. But
the jury answered Question 19 and found that an award of exemplary cdamages of $3,000,000
against Kassab was warranted. Id. at p. 26. Given the Court’s instrucstions, the jury could not have
answered Question 19 unless it unanimously answered “Yes” tos Question 17. See Bruce v. Oscar
Renda Contracting, 657 S.W.3d 453, 464 (Tex. App.—El Paso 2022, pet. filed) (“Because the jury
was instructed to only answer the gross negligence question, and the exemplary damages award
question if unanimity was reached, we must presume it did so by following the instructions.”).
Kassab’s argument requires the Couart to presume that the jury ignored the Court’s
instructions in response to multiple questions, which would be an improper and impermissible
presumption. Columbia Rio Grande eHealthcare, L.P., 284 S.W.3d at 862 (“The jury is presumed
to have followed the court’s instrufctions.”). Specifically, Kassab’s argument that the jury’s answer
to Question 17 was not unanyimous because the presiding juror appears to have inadvertently failed
to sign the certificate oCf unanimity for the question is belied by the jury’s affirmative answers to
Questions 17 and 19 in accordance with the Court’s instructions.
The Daflflas Court of Appeals confronted this issue in the “pet. denied” case of Stover v.
ADM MilUling Co., No. 05-17-00778-CV, 2018 WL 6818561 (Tex. App.—Dallas Dec. 28, 2018,
pet. denied). The court of appeals was urged to find that the jury’s award of exemplary damages
was not supported “because the findings on the threshold jury question nos. 5 and 6 were not
certified to be unanimous.” 2018 WL 6818561, at *12. But the court of appeals properly rejected
that argument and found that “the evidence is legally sufficient to support the jury’s award of
exemplary damages” because the jury later unanimously answered questions predicated on
unanimous answers to question nos. 5 and 6. See id. The court of appeals held:
[W]e address Holmes and Holmes Law's argument that the evidence wask legally
insufficient to support the jury's award of exemplary damages in jury qeuestion no.
17 because the findings on the threshold jury question nos. 5 and l6 were not
certified to be unanimous. In support of their argument, they point to the verdict
certificate where the jury stated, “Our verdict is not unanimous. Ecleven of us have
agreed to each and every answer and have signed the certificate rbelow.” However,
the record also contains an additional certificate signed by thse presiding juror that
states, ""I certify that the jury was unanimous in answering QDuestion No. 15, 16, 17,
and 18. All 12 of us agreed to each of the answers."" In sjury question nos. 5 and 6,
the jury found Holmes and Holmes Law liable for comsmon law fraud and statutory
fraud. The instructions for those jury questions did not require a unanimous
verdict. However, both jury question nos. 15 (clrear and convincing evidence of
fraud and statutory fraud) and 16 (malice) instructed the jury to answer those
questions “only if [] [they] [] unanimously answered 'Yes' to any part of
Question No. 5 [common law fraud] or if [they] unanimously answered 'Yes'
to any part of Question No. 6 [statutolry fraud] and Question No. 7 [actual
awareness].” Further, jury questioan no. 17 (exemplary damages) instructed
the jury that they should only aMnswer the question “if [they] unanimously
answered 'Yes' to Question 15 or Question No. 16.” The jury is presumed to
have followed the trial court's instructions. See, e.g., Columbia Rio Grande
Healthcare L.P. v. Hawley, 2e84 S.W.3d 851, 862 (Tex. 2009). We conclude the
evidence is legally sufficient to support the jury's award of exemplary damages
in jury question no. 17. Hfolmes and Holmes Law's issue 3.3(a) is decided against
them.
Id. (emphasis added).
Stover is directly on point and directly rejects the argument that Kassab makes now.
Kassab reclies on the “no pet.” case of Redwine v. Peckinpaugh, which is different for many
reasons. 535 S.W.3d 44, 50 (Tex. App.—Tyler 2017, no pet.). In Redwine, the jury had a single
cause of action for defamation before it. Redwine, 535 S.W.3d at 47. While it answered an
exemplary damages question that it was instructed to only answer if unanimous, its answer was
directly in conflict with its certification that the entire verdict was otherwise not unanimous. See
id. at 51–52. The court then polled the jury, something that Kassab did not request here, and
confirmed the lack of unanimity. See id.
As explained in Bruce v. Oscar Renda Contracting, because Redwine dealt with a single
cause of action giving rise to liability, the certification of non-unanimity was in ckonflict with an
award of exemplary damages. 657 S.W.3d 453, 464 (Tex. App.—El Paso 202l2, pet. filed). The
court in Bruce contrasted the facts in Redwine with a set of facts similcar to those in this case,
saying: “We conclude that the jury’s certification at issue here does nsot have the same conclusive
effect as it did in Redwine, given that this jury was permitted tos answer several questions by a 10
to 2 vote, unless otherwise instructed to only answer upon reaching unanimity.” Id. (emphasis
added). In other words, because not all of the verdict needed to be unanimous, a general certificate
of non-unanimity is not in conflict with an award of exemplary damages.
Furthermore, in this case, like in Staover, the jury unanimously answered a question
(Question 19) that was predicated on a unanimous answer to Question 17 after answering Question
17. Like in Stover, the jury here couled not have answered the latter question (Question 19) unless
it unanimously answered the earflier question at issue (Question 17). That was not the case in
Redwine. y
Again, the jury Cis presumed to have followed the Court’s instructions, and the Court “must”
“reasonably construe the [jury’s] findings in a way that harmonizes them.” USAA Tex. Lloyds Co.,
545 S.W.3d at f5f09. Given the jury’s responses to Questions 17 and 19, and the Court’s related
unanimityU instructions, the only reasonable construction of the jury’s findings is that the jury was
unanimous in answering “Yes” to Question 17. Because there is evidence that the jury
unanimously answered all exemplary damages questions, the Court “must” give effect to the jury’s
answers and enter a judgment awarding exemplary damages. See id.; Bender v. S. Pac. Transp.
Co., 600 S.W.2d at 260.
Finally, although no conflict in the jury’s answers exists, Kassab’s failure to raise this issue
before the jury was discharged waived the alleged conflict that Kassab claims nowk. Texas law is
settled that “to preserve error based on fatally conflicting jury answers, partlies must raise that
objection before the trial court discharges the jury.” USAA Texas Lloydcs, 545 S.W.3d 479, 518
(emphasis added) (discussing how Rule 295 requires that potential csonflicts in the verdict should
be resolved by the trial court giving instructions to the jury beforse the jury is dismissed). The party
relying on the alleged conflict to avoid the effect of answers awarding exemplary damages, Kassab
here, has the burden to timely object. Id. at 509 (citing Burbage v. Burbage, 447 S.W.3d 249, 256
(Tex. 2014)).
The rule is the same whether the comaplaint regarding the jury’s answers is that they are
incomplete or that they are in fatal conflict; the objection must be raised before the jury is
discharged in order to afford the triael court the opportunity to correct the error. Id. As further
stated by the Supreme Court of Tfexas in USAA Texas Lloyds:
[Texas Rule of Civyil Procedure] 295 provides the procedure for resolving
incomplete and nonresponsive jury verdicts as well as those containing conflicting
answers. Tex. RC. Civ. P. 295. Addressing incomplete verdicts, we have long held
that a judgment will not be reversed ""unless the party who would benefit from
answers to the issues objects to the incomplete verdict before the jury is
dischargecd, making it clear that he desires that the jury redeliberate on the issues
or that tfhfe trial court grant a mistrial."" Fleet v. Fleet, 711 S.W.2d 1, 3 (Tex. 1986);
see also Continental Cas. Co. v. Street, 379 S.W.2d 648, 650 (Tex. 1964) (holding
paUrty failed to preserve error because he ""did not object to the acceptance of the
jury verdict as incomplete, and thus by timely objection afford the trial court the
opportunity, before the jury was discharged, of correcting the error (if such it was)
of accepting the verdict with the issues unanswered""). We conclude that the same
error-preservation requirement applies when a party complains of a judgment
based on conflicting jury answers.
Id. at 519 (emphasis added).
Had Kassab timely raised the alleged conflict prior to the jury being discharged, Rule 295
would have resolved any confusion regarding how many jurors joined in answering Question 17.
That is exactly what happened in Bryan v. Papalia, 542 S.W.3d 676, 692–93 (Tex. App.—Houston
[14th Dist.] 2017, rev. granted, judgm’t vacated w.r.m.), where the Fourteenth Ckourt of Appeals
addressed the issue at length as follows: l
When the jury originally returned its verdict, the verdict form shocwed that the jury
had answered “yes” as to Question 1 for Papalia and “yes” as tro Question 2. The
trial court had instructed the jury that it could answer “yes” sto Question 2 only if
all jurors agreed on that answer and only if all jurors had agDreed to answer “yes” in
Question 1 as to Papalia. Despite this instruction, the sju  ry’s verdict certificate
originally showed that only ten jurors had agreed tso all of the jury’s answers
so only ten had agreed to answer Question 1 “yes” for Papalia and to answer
Question 2 “yes,” but, in light of the trial court’sr instructions in Question 2, the
jury’s affirmative answer to Question 2 indicated that the jury had answered
these two questions unanimously. 
After discussing this situation with coulnsel and polling the jury, the trial court
explained to the jury in open court and on the record that the verdict form contained
an ambiguity because the jury was iMnstructed to answer “yes” to Question 2 only if
all jurors agreed to that answer, but the jurors indicated in the verdict certificate
that only ten jurors agreed to thios answer. The trial court then directed the jury to
return to the jury room and clearify on the verdict certificate whether the answer to
Question 2 was unanimous . c. . . The jury later returned with an amended verdict
certificate indicating tfhat the answers to the first two questions were
unanimous and that ten jurors agreed to the answers to Questions 3 through 9 . . .
Papalia argued in thpe JNOV Motion that the trial court should disregard the answer
to Question 2 because only ten jurors agreed to that answer and signed the original
verdict certificate. Though it is true that only ten jurors signed the original verdict
certificate, aafter the jury returned to the jury room, the jury amended the verdict
certificatec to show that all jurors agreed to the answers to the first two questions. In
this contfext, the original verdict certificate does not provide a basis for disregarding
the juory’s answer to Question 2.
Bryan, 542 S.W.3d at 692–93 (emphasis added).
Kassab waived the right to complain about any alleged conflict in the jury’s answers, even
though there is no conflict, by not timely objecting before the jury was discharged. There is no
error in the Court’s judgment.
III. Pohl Is Entitled to Recover His Actual Losses and Damages Under TUTSA.
Kassab requests the Court to reform the judgment to exclude Pohl’s damages that are based
on attorneys’ fees incurred in connection with separate proceedings based on two grounds. First,
Kassab argues that attorneys’ fees are not recoverable under TUTSA. See Motionk to Modify, pp.
5–10. Second, Kassab argues that the attorneys’ fees incurred in connectilon with grievance
proceedings cannot be recovered. Id., pp. 10-11. Neither argument is cocrrect.
A. Pohl’s TUTSA Losses And Damages Are Recoverasble.
Despite having previously asserted the same rejected arguments on multiple prior
occasions, Kassab continues to claim that portions of Pohl’s edamages are not recoverable because
they are based on attorneys’ fees incurred in separate pr u oceedings.1 See Motion to Modify at 5–
11. Kassab was wrong before, and he remains wronng now. It is true that attorneys’ fees typically
do not constitute actual damages when incurrerd in the same lawsuit. But attorneys’ fees from
separate proceedings—incurred as the result of wrongful conduct of the defendant—do constitute
actual damages in a subsequent lawsueit and are recoverable. See, e.g., Akin Gump Strauss Hauer
& Feld, LLP v. National Developfment & Research Corp., 299 S.W.3d 106, 119-22 (Tex. 2009).
Kassab conflates these distinyct scenarios in arguing otherwise.
TUTSA authorizes the recovery of damages, including “actual loss caused by
misappropriation.” a TEX. CIV. PRAC. & REM. CODE § 134A.004(a). On its face, the plain meaning
of “actual loss” fis broad and encompasses consequential losses such as attorney’s fees in separate
proceedings. This broad definition of damages is not surprising because a “‘flexible and
imaginative’ approach is applied to the calculation of damages in misappropriation-of-trade-
1 See, e.g., Kassab’s Traditional Motion for Summary Judgment, pp. 76–80, filed August 29, 2022; Pohl’s Response
in Opposition to Kassab’s Traditional Motions for Summary Judgment, filed September 12, 2022; see also Court’s
October 31, 2022, order denying Kassab’s motion for summary judgment. Pohl incorporates his prior briefing on this
issue by reference.
secrets cases.” Sw. Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 710 (Tex. 2016). To the
extent that the Court wishes to look at persuasive authority from other states, they too have
recognized that the definition of “actual loss” is broad and encompasses tort damages where a
“plaintiff must prove that its loss was caused by the defendant’s violation.” Skee World Wide
Prosthetic Supply, Inc. v. Mikulsky, 640 N.W.2d 764, 770 (Wis. 2002); Dunsmlore & Associates,
Ltd. v. D'Alessio, No. 409906, 2000 WL 124995, at *10 (Conn. Super. Cct. Jan. 6, 2000) (“Actual
loss in this context means the amount of money that the plaintifsf lost from the defendant's
misappropriation; it is measured by how much better off the plasintiff would have been but for the
defendant's misappropriation.”).
The weakness of Kassab’s position is showcased by his misleading citation to caselaw.
Kassab cites to Florida caselaw asserting that “‘actual loss’ means ‘loss of profits, lost customers
or lost market share.’” See Motion to Modifya, p. 5 (citations omitted). While Pohl disputes that
Florida limits actual loss damages to these three categories, if it did, it demonstrates why the Court
should ignore this non-controlling autehority. Moreover, Kassab does not dispute that Texas allows
recovery of damages outside of tfhose three categories of damages. See, e.g., Motion to Modify,
pp. 12-13 (not disputing thaty market value is recoverable as a measure of “actual loss”).
Kassab’s citatioCn to Texas caselaw fares no better. Here, even though the issue concerns
recovery of attorneys’ fees incurred in separate proceedings, Kassab cites multiple cases dealing
with recovery foff attorneys’ fees incurred in the same proceeding.2 See Motion to Modify, p. 7.
2 Lacore Enters., LLC v. Angles, 2023 WL 2607562, *9 (Tex. App.—Dallas Mar. 23, 2023, no pet.) (standing for the
non-controversial conclusion that fees from the same lawsuit are not recoverable as damages under the American
rule); O’Neal v. Dale, 2021 WL 210848, *10 (Tex. App.—Fort Worth Jan. 21, 2021, no pet.) (standing for the
uncontroversial proposition that fees incurred in the present lawsuit do not typically constitute damages); Woodhaven
Partners, Ltd. v. Shamoun & Norman, L.L.P., 422 S.W.3d 821, 839 (Tex. App.—Dallas 2014, no pet.) (“the only
damages stated by appellants consist of legal fees and expenses they incurred in defending against this lawsuit brought
by appellee and in prosecuting their counterclaims.”).
Furthermore, some of the cases do not concern recovery of attorneys’ fees at all,3 and one was
cited for a proposition that was subsequently overruled.4 The Court should not consider Kassab’s
misleading citations.
And even if the Court were not convinced that TUTSA alone authorized kthe recovery of
Pohl’s damages, Pohl’s damages are recoverable under equitable principlesl. See Dixon Fin.
Services, Ltd. v. Chang, 325 S.W.3d 668, 678 (Tex. App.—Houston [1st cDist.] 2010, pet. denied)
(“Equitable principles allow the recovery of attorney’s fees as actuasl damages when a party was
required to prosecute or defend a prior legal action as a conssequence of a wrongful act of the
defendant.”).5
Kassab acknowledges the potential applicability of this equitable doctrine but claims that
Pohl cannot qualify because an equitable doctrine can only apply when the plaintiff is “wholly
innocent” of any wrongdoing. See Motion to Maodify, p. 9. Pohl disputes that the “wholly innocent
party” element is properly part of the tort of another doctrine. Indeed, Kassab himself cites
3 Tana Oil & Gas Corp. v. McoCall, 104 S.W.3d 80, 81 (Tex. 2003) (rejecting argument that parties could recover for
the value of their own timCe because the Court saw “no causal relationship between the tortious interference the
McCalls allege and the only damages they claim.”); Tex. Mut. Ins. Co. v. Ray Ferguson Interests, Inc., 2006 WL
648834, *8 (Tex. App.—a lHouston [1st Dist.] Mar. 16, 2006, pet. denied) (finding that a company’s financial loss due
to employees spendingi time on depositions and discovery did not constitute damages in the same lawsuit).
4 See Motion to Mfodify, p. 7 (citing Martin-Simon v. Womack, 68 S.W.3d 793, 797 (Tex. App.—Houston [14th Dist.]
2001, pet. denied) for the proposition that “attorney’s fees are recoverable only when an agreement between the parties
so provides.”). This is in direct conflict with multiple subsequent Supreme Court of Texas cases. See, e.g., Akin,
Gump, Strauss, Hauer & Feld, L.L.P., 299 S.W.3d at 120–21 (finding an award of attorneys’ fees could be proper
even absent an agreement between the parties).
5 Kassab continues to cite inapplicable caselaw throughout. For example, he cites Riner v. Neumann, 353 S.W.3d
312, 323 (Tex. App.—Dallas 2011, no pet.) as support for his contention that “[o]ther intermediate courts of appeals
have likewise refused to adopt the tort of another doctrine.” See Motion to Modify, p. 8 n.4. This is false. Riner does
not mention the tort of another doctrine. See generally Riner, 353 S.W.3d 312. Instead, the court in that case declined
to adopt an exception to the American rule prohibiting recovery of attorneys’ fees in the same case absent
authorization. See id. at 322.
10
multiple cases demonstrating that there is no wholly innocent party element to the doctrine.6 See
Akin, Gump, Strauss, Hauer & Feld, L.L.P., 299 S.W.3d at 106; Naschke v. Gulf Coast Conference,
187 S.W.3d 653 (Tex. App.—Houston [14th Dist.] 2006, pet. denied); Brannan Paving GP, LLC
v. Pavement Markings, Inc., 446 S.W.3d 14 (Tex. App.—Corpus Christi 2013, petk. denied).
Regardless, however, Kassab is incorrect that the jury found that Plohl’s trade secret
damages were caused by Pohl’s conduct. In response to Question 4—whicch was the proportionate
responsibility question specifically tied to the misappropriation of tsrade secrets claim—the jury
assigned 0% of the responsibility to Pohl. See Ex. A at 10.7 sKassab ignores this question and
instead contends the jury’s answer to Question 3 shows that Pohl is not “wholly innocent.” See
Motion to Modify, p. 9. But Question 3 is not tied to the misappropriation of trade secrets. See
Ex. A at 9. In fact, the jury specifically asked if they should still answer Question 3 even if they
found that no trade secrets existed. With thea agreement of Kassab, the Court instructed the jury
that they should still respond to Question 3 even if they answered “No” to both parts of Question
1 regarding the existence and ownersehip of a trade secret.
The attorneys’ fees that fPohl incurred in separate proceedings as a result of Kassab’s
wrongful conduct are recovyerable as part of Pohl’s “actual loss” in this lawsuit. Kassab’s
arguments otherwise aCre not supported by controlling law. The Court correctly entered judgment
in favor of Pohl for the amount of his “actual loss” found by the jury.
B. fRule 17.09 of the Texas Rules of Disciplinary Procedure Does Not Apply.
AUs a threshold matter, this lawsuit is not predicated on Kassab filing a grievance or
participating in the grievance process. It is predicated on Kassab’s misappropriation of Pohl’s
6 Further, Kassab’s reliance on the idea of a wholly innocent party exception is not consistent with the history of the
doctrine. See James Michael Stanton, Recovering Attorney’s Fees in Equity Under Texas Law: Why Some Texas
Courts of Appeal Have It Wrong, 29 T. Marshall L. Rev. 243, 278 (2004).
7 This Exhibit A is attached to Pohl’s Response to Kassab’s Motion for New Trial and Motion for JNOV.
11
trade secrets. For that reason alone, Rule 17.09 of the Texas Rules of Disciplinary Procedure does
not apply, and the Court should reject Kassab’s argument otherwise. See Motion to Modify, pp.10-
11.
Regardless, this issue has been briefed extensively before, and Pohl wilkl not repeat the
same arguments now. Pohl incorporates his prior briefing by reference. l See, e.g., Pohl’s
November 30, 2022, Rule 166(g) Motion, pp. 12–14. Bottom line, thec Court properly rejected
Kassab’s arguments on the issue then, and it should reject them agains now.
IV. The Damages Awarded to Pohl Are Not Duplicative. s
Kassab requests the Court to modify the judgment to exclude allegedly duplicative
damages. But the damages are not duplicative. To the contrary, TUTSA expressly authorizes the
recovery of “both the actual loss caused by misappropriation and the unjust enrichment caused by
misappropriation that is not taken into accou
nt in computing actual loss.” TEX. CIV. PRAC. &
REM. CODE § 134A.004(a) (emphasis added). Kassab agrees that the market value damages found
by the jury are “actual loss” damagese. See Motion to Modify, p. 12. Kassab also agrees that the
jury found that he had been unjfustly enriched through his misconduct in the form of avoided
development costs. Id. Andy the jury was specifically instructed that it should “not award any sum
of money on any elemCent if you have otherwise, under some other element in this question,
awarded a sum of maoney for the same loss.” See Charge of the Court, p. 13. Once again, the
Court must prefsume that the jury followed its instructions. Columbia Rio Grande Healthcare,
L.P., 284U S.W.3d at 862.
Additionally, the awards are not duplicative because the jury could have found that the
market value damages compensated Pohl for the loss of value of his trade secrets going forward,
as that value was destroyed or lessened by Kassab’s unlawful use and disclosure of the trade
secrets. The jury also could have found that the market value damages were separate and distinct
12
from the improper benefit Kassab received by avoiding development costs (a) that he otherwise
would have incurred in the past, and (b) that the Texas Uniform Trade Secrets Act expressly
allowed the jury to consider in addition to actual loss. See TEX. CIV. PRAC. & REM. CODE §
134A.004(a) (“both the actual loss caused by misappropriation and the unjust enrickhment” may be
recovered). l
Finally on this point, the unjust enrichment award could not havce compensated Pohl for
the actual loss associated with the market value of Pohl’s trade secretss because unjust enrichment
is an equitable remedy that disgorges unjust gains instead of cosmpensating for loss. See Nguyen
v. Watts, 605 S.W.3d 761,789 (Tex. App.—Houston [1st Dist.] 2020, pet. denied) (“Recovery for
unjust enrichment arises from the equitable principle that a person receiving benefits, which were
unjust for him to retain, should make restitution.”) (citing Villarreal v. Grant Geophysical, Inc.,
136 S.W.3d 265, 270 (Tex. App.—San Antoniao 2004, pet. denied). Because the jury viewed unjust
enrichment as not being accounted for in its award of “actual loss” damages, and because this
would be reasonable given that an aweard based on unjust enrichment does not seek to redress loss,
the finding is not duplicative undfer TUTSA. Id.
V. Kassab’s Argumenty for Preemption Of Pohl’s “Conspiracy Claim” Is Inapposite
Because Texas Only Recognizes Conspiracy as a “Rule” of Joint and Several
Liability—NotC a Cause of Action.
Kassab arguaes that the Court should disregard the jury’s conspiracy finding and reform the
judgment to elimfinate Kassab’s joint and several liability because he contends that conspiracy is
“either prUeempted by TUTSA or subject to the [statutory] proportionate responsibility scheme.”
See Motion to Modify, p. 13. Yet Kassab cites no binding precedent holding that Pohl’s conspiracy
allegations are improper. The Court should reject Kassab’s arguments.
Based on unpublished federal cases, Kassab claims that “courts have concluded that
Chapter 33’s proportionate responsibility scheme applies to conspiracy claims, rather than joint
13
and several liability.” See id. at 14. But Kassab ignores contrary published Texas caselaw. The
Dallas Court of Appeals recently rejected “the premise that Chapter 33 superseded the rule that
civil conspiracy findings result in joint and several liability.” Guillory v. Dietrich, 598 S.W.3d
284, 296 (Tex. App.—Dallas 2020, pet. denied). Other Texas appellate courts hkave reached the
same conclusion. See, e.g., Stephens v. Three Finger Black Shale P’ship, 58l0 S.W.3d 687, 719
(Tex. App.—Eastland 2019, pet. denied) (“[w]e are of the opinion that jcoint and several liability
attaches to a civil conspiracy finding and is not affected by the sproportionate responsibility
statutes.”). s 
Furthermore, in addition to the fact that they do not control this Court, the authorities that
Kassab cites erroneously recognized civil conspiracy as a cause of action rather than a rule of
liability. Indeed, Kassab’s whole argument presupposes that preemption is warranted because
conspiracy is a cause of action to which Cahapter 33 applies. See Motion to Modify, p. 14.
However, the Supreme Court of Texas has clarified that conspiracy is not a cause of action; rather
it is simply a rule of joint liability. Agear Corp. v. Electro Circuits Int'l, LLC, 580 S.W.3d 136, 142
(Tex. 2019) (“civil conspiracy is fa theory of vicarious liability and not an independent tort”). As
a result, even the reasoning yof the non-controlling authorities that Kassab relies on is misplaced.
Id. C
Notably, Kassab failed to cite any Texas caselaw holding that TUTSA preempts an
allegation of a fcfonspiracy to misappropriate trade secrets. The absence of any supporting Texas
caselaw iUs telling. See Motion to Modify, pp. 13–15. Under the facts of this case, there is simply
no basis for preemption. 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(a) (emphasis added). Conspiracy does not provide a conflicting
14
remedy in this case.8 It merely provides that damages are joint and several. For this reason, Texas
trial courts have continued to submit both TUTSA and conspiracy claims to the jury. See, e.g.,
Whitlock v. CSI Risk Mgmt., LLC, No. 05-19-01297-CV, 2021 WL 1712215, at *13 (Tex. App.—
Dallas Apr. 30, 2021, pet. denied), reh’g denied (June 7, 2021) (holding that the conkspiracy finding
was supported by the underlying tort of misappropriation of trade secrets). l
Pohl’s TUTSA claim provides the remedy—damages for the micsappropriation of Pohl’s
trade secrets. Application of the law of conspiracy simply makes thsat remedy apply jointly and
severally. That is no more objectionable or inconsistent withs TUTSA than application of the
proportionate responsibility statute, which Kassab acknowledges applies. The Court should reject
Kassab’s selective and erroneous invocation of TUTSA preemption.
VI. Pohl Is Entitled to Recover Attorneys’ Fees, and Kassab Is Not Entitled to a Take
Nothing Judgment. l
Kassab argues in the form of an Momnibus point that, because virtually all actual and
exemplary damages awarded by the juory are purportedly improper, Kassab is entitled to a take
nothing judgment because (a) thce applicable settlement credit exceeds Pohl’s recoverable
damages, and therefore (b) Pohl is not a “prevailing party” entitled to recover attorney’s fees under
TUTSA. See Motion to Modify, p. 15. But as we previously explained, Pohl is entitled to recover
both his actual loss and damages for Kassab’s unjust enrichment. See TEX. CIV. PRAC. & REM.
CODE § 134A.004c(a) (“both the actual loss caused by misappropriation and the unjust enrichment”
may be recovered). Likewise, as we also previously explained, Pohl is entitled to recover the
attorney’s fees that he incurred in separate proceedings due to Kassab’s unlawful conduct as part
8 As an aside, Kassab’s TUTSA expert, Joseph Cleveland, appears to assume that allegations of conspiracy can exist
alongside a TUTSA claim, as he makes no mention of preemption in discussing them in conjunction with each other.
Cf. Joseph F. Cleveland, Jr., J. Heath Coffman, Kevin C. Smith, A Practitioner's Guide to the Texas Uniform Trade
Secrets Act, Tex. J. Bus. L. 1, 16 (2019) (discussing how pleading conspiracy in connection with a TUTSA claim “will
virtually guarantee that the TCPA applies”).
15
of Pohl’s actual loss. Because Pohl is entitled to recover these damages, Kassab’s argument that
exemplary damages must be reduced to reflect Kassab’s desired pruning of actual damages is
meritless.
Pohl’s recoverable actual damages, exclusive of attorney’s fees incurred kin this case and
exemplary damages, total more than $1,400,000.00. They greatly exceed the aplplicable settlement
credit of $765,000.00. Pohl is the “prevailing party” and is entitled toc recover attorney’s fees
incurred in this case under TUTSA, as well as all other damages fousnd by the jury and awarded
by the Court. See TEX. CIV. PRAC. & REM. CODE § 134A.005. s 
VII. Kassab’s Great-Weight-and-Preponderance of the Evidence Arguments are
Meritless. r
Lastly, Kassab makes a four-sentence effort to argue that the verdict is against the great
weight and preponderance of the evidence, yet Kalssab fails to discuss any specific evidence. Even
had Kassab adequately briefed this point, aMnd he did not, it should be rejected.
Great-weight-and-preponderancoe arguments come with a heavy burden. See e.g. Harding
v. Lewis, 133 S.W.3d 693, 698 (Texc. App.—Corpus Christi 2003, no pet.) (party asserting great-
weigh-and-preponderance point carries a heavy burden to show that the evidence supporting the
finding is so weak as to be clearly wrong and manifestly unjust). This is because it is the jury’s
exclusive province to determine the weight to be given to testimony and to resolve any conflicts
in the evidence. cHome Ins. Co. v. Garcia, 74 S.W.3d 52 (Tex. App.—El Paso 2002, no pet.) (a
court should not substitute its evaluation of the evidence for the jury’s unless, based on the
evidence supporting the jury’s answer, the verdict is manifestly unjust).
Here, the jury heard and considered testimonial evidence (both fact and expert) and
documentary evidence supporting the actual damages that Pohl sustained as a result of Kassab’s
16
misconduct, which the jury was entitled to accept or reject. The jury chose to accept this evidence
and, therefore, the verdict and judgment should stand. Id.
As to exemplary damages specifically, the evidence of Kassab’s willful and malicious
misconduct was overwhelming, which perhaps is why Kassab chose not to address kit in the Motion
to Modify. Under the guise of a phony expert witness agreement, Kassab secretlly purchased Pohl’s
client files and trade secrets for his own benefit. Thereafter, Kassab used cthe fruits of the unlawful
purchase to file multiple unsuccessful grievances and lawsuits againsst Pohl for Kassab’s personal
financial gain. And in what can only be described as a maliscious effort to destroy Pohl both
personally and professionally, Kassab publicized one of his grievances against Pohl (which was
ultimately dismissed like all of the others) to the Texas Attorney General, the Harris County
District Attorney, the Houston Chronicle, The Texas Lawyer, and a then-candidate for president
of the State Bar of Texas. Yet Kassab refused ato acknowledge any error or wrongdoing at all, even
denying that he had purchased Pohl’s files after a federal judge found in a written order that he
had. Instead, Kassab purported to jusetify his unlawful conduct by accusing Pohl of wrongdoing—
an accusation that the jury squarefly rejected.
The jury saw througyh Kassab’s unaccountable subterfuge and rejected Kassab’s false
theory of “vigilante” juCstice. Based on substantial and compelling evidence, the jury appropriately
awarded exemplary damages to send a message to Kassab and others like him that such malicious,
willful, and unflafwful conduct will not be tolerated.
TUhe jury’s findings as to both Pohl’s actual damages and exemplary damages are amply
supported by the evidence. Kassab’s great-weight-and-preponderance arguments are meritless.
VIII. Conclusion.
Pohl requests the Court to deny Kassab’s Motion to Modify. Pohl requests any other,
further, or alternative relief to which he is entitled.
17
Dated: February 2, 2024 Respectfully submitted,
REYNOLDS FRIZZELL LLP
By: /s/ Jean C. Frizzell
Jean C. Frizzell
State Bar No. 07484650
1100 Louisiana St., Suite 3500 r
Houston, Texas 77002
Tel. 713.485.7200
Fax 713.485.7250 t
jfrizzell@reynoldsfrizzell.ciom
Attorney for Plaintiffs iMichael Pohl
and Law Office of Michael A. Pohl, PLLC
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copyy of this document was served on all counsel of
record pursuant to the Texas Rules of Civil Prorciedure on this 2nd day of February, 2024.
f /s/ Jean C. Frizzell
 Jean C. Frizzell
18
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Suni Blue on behalf of Jean Frizzell
Bar No. 7484650
sblue@reynoldsfrizzell.com r
Envelope ID: 84108335
Filing Code Description: No Fee Documents
Filing Description: Pohl's Response to Kassab's Motion to Motdify
Judgment i
Status as of 2/2/2024 4:37 PM CST s
Case Contacts 
Name BarNumber Email g TimestampSubmitted Status
Harris Wells hwells@reynoldsfrizzell.com 2/2/2024 4:20:58 PM SENT
Andrew Johnson ajohnson@thompsoncoe.com 2/2/2024 4:20:58 PM SENT
Benjamin Ritz britz@thompsoncoe.com 2/2/2024 4:20:58 PM SENT
Murray JFogler mfaogler@foglerbrar.com 2/2/2024 4:20:58 PM SENT
Murray Fogler mfogler@fbfog.com 2/2/2024 4:20:58 PM SENT
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 2/2/2024 4:20:58 PM SENT
Dale Jefferson 10607c900 jefferson@mdjwlaw.com 2/2/2024 4:20:58 PM SENT
Raul Herman Suazo 240f03021 suazo@mdjwlaw.com 2/2/2024 4:20:58 PM SENT
Kevin Graham Cain 24012371 cain@mdjwlaw.com 2/2/2024 4:20:58 PM SENT
Todd Taylor ttaylor@jandflaw.com 2/2/2024 4:20:58 PM SENT
Scott M.Favre C scott@favrepa.com 2/2/2024 4:20:58 PM SENT
Lawyer Wade a lawyerwade@hotmail.com 2/2/2024 4:20:58 PM SENT
Chris C.Pappas cpappas@krcl.com 2/2/2024 4:20:58 PM SENT
Non-Party Witnesso Billy Shepherd bshepherd@spcounsel.com 2/2/2024 4:20:58 PM SENT
Non-Party DoUna Pohl DonaLyann@yahoo.com 2/2/2024 4:20:58 PM SENT
Non-Party Edgar Jaimes edgarsroom@gmail.com 2/2/2024 4:20:58 PM SENT
Kevin Dubose 6150500 kdubose@adjtlaw.com 2/2/2024 4:20:58 PM SENT
Marisa Barrera Cruz Hurd 24041157 mhurd@adjtlaw.com 2/2/2024 4:20:58 PM SENT
Andrea Mendez andrea@kassab.law 2/2/2024 4:20:58 PM SENT
Lance Kassab lance@kassab.law 2/2/2024 4:20:58 PM SENT
David Kassab david@kassab.law 2/2/2024 4:20:58 PM SENT
Nicholas Pierce nicholas@kassab.law 2/2/2024 4:20:58 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.
Suni Blue on behalf of Jean Frizzell
Bar No. 7484650
sblue@reynoldsfrizzell.com r
Envelope ID: 84108335
Filing Code Description: No Fee Documents
Filing Description: Pohl's Response to Kassab's Motion to Motdify
Judgment i
Status as of 2/2/2024 4:37 PM CST s
Case Contacts 
Nicholas Pierce nicholas@kassagb.law 2/2/2024 4:20:58 PM SENT
Lance Kassab eserve@kassab.law 2/2/2024 4:20:58 PM SENT
D Kassab david@kassab.law 2/2/2024 4:20:58 PM SENT
L Kassab lance@kassab.law 2/2/2024 4:20:58 PM SENT
Kelly Skelton recaeption@kassab.law 2/2/2024 4:20:58 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 2/2/2024 4:20:58 PM SENT
Thallia Malespin tmalespin@reynoldsfrizzell.com 2/2/2024 4:20:58 PM SENT
Misty Davis c mdavis@reynoldsfrizzell.com 2/2/2024 4:20:58 PM SENT
Harris Wells f hwells@reynoldsfrizzell.com 2/2/2024 4:20:58 PM SENT
David Kassab  david@kassab.law 2/2/2024 4:20:58 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 2/2/2024 4:20:58 PM SENT
Harris Wells C hwells@reynoldsfrizzell.com 2/2/2024 4:20:58 PM SENT"
63,2023-10-23,LTR,Pohl,Request for ruling on final judgment,"Pohl's Request for a Ruling on Motion for Entry of Final Judgment, urging Court to expedite consideration of the pending motion and raising concerns about Kassab's continued harassment through Mississippi bar complaints filed using case materials","Request for ruling filed October 23, 2023, more than one month after the September 19, 2023 hearing on entry of judgment. The Motion for Entry of Final Judgment was filed promptly after the August 31, 2023 jury verdict and has been ripe for over a month without a ruling.",JDGMT-1,N/A,Phase 5,2023-10-23_LTR_Pohl-Request-for-Ruling-on-Final-Judgment_FILED.pdf,"That the Court expedite consideration and grant Pohl's Motion for Entry of Final Judgment, entering final judgment in Pohl's favor in the form attached to the Motion","10/23/2023 5:36 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 80886597
By: Patricia Gonzalez
Filed: 10/23/2023 5:36 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et. al § IN THE DISTRICT COURT OF
Plaintiffs, §
V. § HARRIS COUNTY,k TEXAS
§ e
LANCE CHRISTOPHER § C l
KASSAB, et. al § 
§ c
Defendants. § 281ST JUDrICIAL DISTRICT
POHL’S REQUEST FOR A RULING ON
POHL’S MOTION FOR ENTRY OF FINAsL JUDGMENT
Pohl requests that the Court expedite its consideration of Pohl’s Motion for Entry of Final
Judgment (the “Motion”). The Motion has been ripe for a ruling for over a month, and while Pohl
waits for entry of judgment on the jury verdict in his favor, it appears that Kassab is using materials
from this lawsuit to continue to harass Pohl—adespite the jury’s verdict being inconsistent with
Kassab’s barratry and unauthorized practice of law theories in this case. The Court should
promptly enter a final judgment to gieve finality to the trial proceedings in this case.
f I. BACKGROUND
Kassab has unsucceyssfully accused Pohl of engaging in barratry and the unauthorized
practice of law for the lCast six years. According to Kassab, Pohl allegedly obtained clients through
barratry and the unaauthorized practice of law in Mississippi, and thus, Pohl did not have rightful,
legal, or equitabfle title in any trade secret concerning Pohl’s clients. However, on August 31,
2023, theU jury rendered a verdict in Pohl’s favor, and found that, despite Kassab’s allegations of
barratry and the unauthorized practice of law, Pohl owned the trade secrets concerning his clients.
After the jury rendered their verdict, Pohl promptly filed the Motion requesting entry of
judgment and set the Motion for a hearing on September 19, 2023. As the briefing and arguments
at that hearing showed, Pohl is entitled to entry of a final judgment in his favor that gives effect to
the jury’s findings of liability and damages.
Since trial, Pohl has learned new information that suggests that Kassab is using materials
from this case to continue to harass Pohl through the filing of bar complaints. Tkhrough a letter
dated October 18, 2023, Pohl was informed that a Mississippi bar complaint wals filed against him
based on materials from this case like expert reports, deposition excerpcts, and other documents
produced in this case—many of which contained Kassab’s Bates labesls.
While it is clear that someone sent the Mississippi bar comsmittee materials from this case—
the materials were attached to the bar complaint—the bar complaint does not identify who sent the
materials. However, the relevant materials attached to the bar complaint did not all come from
public filings, as they do not have exhibit stamps or other relevant markings. Given this, the
reasonable inference is that Kassab, or someaone with Kassab’s assistance, sent materials to the
Mississippi bar to continue to harass Pohl based on unproven conduct that allegedly occurred more
than 10 years ago. e
f II. DISCUSSION
Pohl respectfully reqyuests that the Court enter judgment in his favor in accordance with the
jury’s verdict. As laidC out in the Motion and in Pohl’s reply briefing, the findings in the jury’s
verdict entitle Pohla to a judgment in the form attached to the Motion. Pohl is eager to receive a
final judgment tfhat will move this dispute closer to a complete resolution. Despite losing this case,
Kassab aUppears to wish to continue to harass and retaliate against Pohl based on unproven
allegations. The lack of a final judgment against Kassab only emboldens him on this front. Thus,
Pohl requests that the Court grant his Motion and enter final judgment in his favor based on the
proposed final judgment attached to the Motion.
III. CONCLUSION
Plaintiffs Michael Pohl and Law Offices of Michael A. Pohl respectfully ask the Court to
grant Pohl’s Motion and enter final judgment in Pohl’s favor.
Dated: October 23, 2023. Respectfully submitted, l
REYNOLDS FRIZZELL LLP c
By: /s/ Jean C. Frizzelsl
Jean C. FrizzellD
State Bar No. 07484650
1100 Louissiana St., Suite 3500
Houston, Texas 77002
Tel. 71r3.485.7200
Fax 713.485.7250
jfrizzell@reynoldsfrizzell.com
Attorney for Plaintiffs Michael Pohl
anrd Law Office of Michael A. Pohl, PLLC
CEReTIFICATE OF SERVICE
I hereby certify that a true fand correct copy of this document was served on all counsel of
record pursuant to the Texas Rules of Civil Procedure on this 23rd day of October 2023.
/s/ Jean C. Frizzell
Jean C. Frizzell
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Monica Orand on behalf of Jean Frizzell
Bar No. 7484650
morand@reynoldsfrizzell.com r
Envelope ID: 80886597
Filing Code Description: Request
Filing Description: Pohl's Request for a Ruling on Pohl's Motiotn for Entry
of Final Judgment i
Status as of 10/24/2023 7:29 AM CST s
Case Contacts 
Name BarNumber Email g TimestampSubmitted Status
Harris Wells hwells@reynoldsfrizzell.com 10/23/2023 5:36:30 PM SENT
Andrew Johnson ajohnson@thompsoncoe.com 10/23/2023 5:36:30 PM SENT
Benjamin Ritz britz@thompsoncoe.com 10/23/2023 5:36:30 PM SENT
Murray JFogler mfaogler@foglerbrar.com 10/23/2023 5:36:30 PM SENT
Murray Fogler mfogler@fbfog.com 10/23/2023 5:36:30 PM SENT
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 10/23/2023 5:36:30 PM SENT
Todd Taylor c ttaylor@jandflaw.com 10/23/2023 5:36:30 PM SENT
Dale Jefferson 106f07900 jefferson@mdjwlaw.com 10/23/2023 5:36:30 PM SENT
Raul Herman Suazo 24003021 suazo@mdjwlaw.com 10/23/2023 5:36:30 PM SENT
Todd Taylor ttaylor@jandflaw.com 10/23/2023 5:36:30 PM SENT
Scott M.Favre C scott@favrepa.com 10/23/2023 5:36:30 PM SENT
Lawyer Wade a lawyerwade@hotmail.com 10/23/2023 5:36:30 PM SENT
Chris C.Pappas cpappas@krcl.com 10/23/2023 5:36:30 PM SENT
Non-Party Witnesso Billy Shepherd bshepherd@spcounsel.com 10/23/2023 5:36:30 PM SENT
Non-Party DoUna Pohl DonaLyann@yahoo.com 10/23/2023 5:36:30 PM SENT
Non-Party Edgar Jaimes edgarsroom@gmail.com 10/23/2023 5:36:30 PM SENT
Kevin Dubose 6150500 kdubose@adjtlaw.com 10/23/2023 5:36:30 PM SENT
Marisa Barrera Cruz Hurd 24041157 mhurd@adjtlaw.com 10/23/2023 5:36:30 PM SENT
Andrea Mendez andrea@kassab.law 10/23/2023 5:36:30 PM SENT
Lance Kassab lance@kassab.law 10/23/2023 5:36:30 PM SENT
David Kassab david@kassab.law 10/23/2023 5:36:30 PM SENT
Nicholas Pierce nicholas@kassab.law 10/23/2023 5:36:30 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.
Monica Orand on behalf of Jean Frizzell
Bar No. 7484650
morand@reynoldsfrizzell.com r
Envelope ID: 80886597
Filing Code Description: Request
Filing Description: Pohl's Request for a Ruling on Pohl's Motiotn for Entry
of Final Judgment i
Status as of 10/24/2023 7:29 AM CST s
Case Contacts 
Lance Kassab eserve@kassab.glaw 10/23/2023 5:36:30 PM SENT
Kevin Graham Cain 24012371 cain@mdjwlaw.com 10/23/2023 5:36:30 PM SENT
L Kassab lance@kassab.law 10/23/2023 5:36:30 PM SENT
Kelly Skelton reception@kassab.law 10/23/2023 5:36:30 PM SENT
Murray J. Fogler 7207300 mfaogler@foglerbrar.com 10/23/2023 5:36:30 PM SENT
Thallia Malespin tmalespin@reynoldsfrizzell.com 10/23/2023 5:36:30 PM SENT
Misty Davis mdavis@reynoldsfrizzell.com 10/23/2023 5:36:30 PM SENT
Harris Wells c hwells@reynoldsfrizzell.com 10/23/2023 5:36:30 PM SENT
D Kassab f david@kassab.law 10/23/2023 5:36:30 PM SENT
Harris Wells  hwells@reynoldsfrizzell.com 10/23/2023 5:36:30 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 10/23/2023 5:36:30 PM SENT"
62,2023-09-22,LTR,Pohl,Response to Kassab letter,"Pohl's letter to Judge Christine Weems replying to Kassab's September 20, 2023 post-hearing letter brief, addressing exemplary damages burden of proof, recoverability of attorneys' fees, conspiracy preemption, and Precision's exoneration","Sur-reply letter brief filed September 22, 2023 in the 281st Judicial District Court, Harris County, Cause No. 2018-58419. Addressed to Judge Christine Weems. Filed two days after Kassab's post-hearing letter brief (September 20) and three days after the September 19 hearing on entry of judgment. Pohl notes his Reply was filed one business day after Kassab's Response. Signed by Harris Y. Wells and Jean C. Frizzell of Reynolds Frizzell LLP.",JDGMT-1,N/A,Phase 5,2023-09-22_LTR_Pohl-Response-to-Kassab-Letter-re-Final-Judgment_FILED.pdf,"That the Court grant Pohl's Motion, enter judgment in the form attached as Exhibit B to the Motion, and overrule Kassab's objections to entry of judgment","9/22/2023 9:53 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 79868932
By: Bonnie Lugo
Filed: 9/22/2023 9:53 PM
September 22, 2023
Via Electronic Filing
Judge Christine Weems r
Harris County Civil Courthouse l
201 Caroline, 14th Floor
Houston, Texas 77002 c t
RE: Michael A. Pohl et al. v. Lance Christopher Kassab et al.; Casutse No. 2018-58419; In the 281st
Judicial District Court of Harris County, Texas. D i
Reply to Kassab’s Post-Hearing Letter on Pohl’s Motion for Entry of Judgment (the “Motion”)
Dear Judge Weems: e
In Kassab’s September 20, 2023 letter (the “Leutter”), Kassab suggests that the timing of
Pohl’s Reply brief entitles Kassab to further briefing. Pohl filed his Reply one business day after
Kassab filed his Response. Because Kassab misstates both the law and facts in the Letter, Pohl
files this reply letter. l
DMISCUSSION
A. The Jury Verdict shows thoe Jury unanimously awarded exemplary damages.
Kassab makes two argumencts on the recovery of exemplary damages: he claims (1) it was
Pohl’s burden to ensure the Jury fsigned a certificate of unanimity for Question 17, and (2) that
various cases Pohl cited are “distinguishable for important reasons.” Letter at 1–2. Each argument
fails. First, as the Supreme Cyourt of Texas held in USAA Tex. Lloyds Co. v. Menchaca, “the party
who must rely on theo conflicting answer to avoid the effect of answers that establish
liability . . . bore the burden to object.” 545 S.W.3d 479, 519 (Tex. 2018) (emphasis added).
That is Kassab here. lSecond, any so-called distinguishing facts either are not distinguishing or are
immaterial becaucsei the reasoning of those cases, applied to the facts of this case, shows Pohl is
entitled to an awfard of exemplary damages.
1. It was Kassab’s burden to object because he seeks to set aside the Jury’s answers.
Pohl obtained the necessary findings to support an award of exemplary damages against
Kassab through the Jury’s answers to Questions 2, 17, and 19.1 Kassab asks the Court to ignore
the Jury’s findings because he contends the certificate of unanimity is incomplete and lacks a
signature for Question 17. See Letter at 2. Binding precedent from the Texas Supreme Court
1 See Jury Verdict at 7–8, 24, & 26, attached as Ex. A to the Motion.
September 22, 2023
Page 2
shows Kassab had the burden to object before the Jury was dismissed to avoid the effect of the
Jury’s answers to Questions 2, 17, and 19. Kassab’s failure to object waived this issue.
In USAA Tex. Lloyds Co. v. Menchaca, the Texas Supreme Court discussed how Texas
Rule of Civil Procedure 295 “provides the procedure for resolving incomplete and nonresponsive
jury verdicts as well as those containing conflicting answers.” 545 S.W.3d at r519. The Court
stated that a party must object before the jury is dismissed and clarified that “thle party who must
rely on the conflicting answer to avoid the effect of answers that establish liability . . . bore
the burden to object.” Id. (emphasis added). In this case, it does notc matter whether Kassab
frames the issue as a problem of incompleteness or conflict within thet Jury Verdict. The rule is
the same; Rule 295 and Menchaca govern the question of whose buriden it was to object. Because
the Texas Supreme Court clarified these rules in 2018, post-Menchaca caselaw is instructive.
A recent case cites Menchaca on the precise issue ebefore this Court—which party has
the burden to object when the jury does not sign a certificate of unanimity for an exemplary
damages question. See Bruce v. Oscar Renda Contracting, 657 S.W.3d 453, 463 (Tex. App.—El
Paso 2022, pet. filed). In Bruce, the court cited Menchaca and found that the defendant—the party
who opposed giving effect to the jury’s answers finding exemplary damages—had the burden to
object to the lack of a certificate of unanimity “bielfore the jury was discharged.” Id. The same is
true here. As a matter of law, the Jury’s answers to Questions 2, 17, and 19 are sufficient to award
exemplary damages.2 See id; see also Menchaca, 545 S.W.3d at 519. Kassab had the burden to
object before the Jury was discharged too avoid the effect of those answers based on any contention
that the Jury Verdict is incomplete ore has a conflict.
2. Kassab’s discussion off caselaw demonstrates that exemplary damages are proper.
Kassab does not address the caselaw demonstrating the Court “must,” when possible,
“reasonably construe the [jpury’s] findings in a way that harmonizes them.” Menchaca, 545 S.W.3d
at 509; see Bender v. SC. Pac. Transp. Co., 600 S.W.2d 257, 260 (Tex. 1980). The only way to
harmonize the Jury Verdict is to give effect to the Jury’s affirmative finding of exemplary damages.
Because Kassab has no response to this, he claims that three other cases cited by Pohl are
“distinguishable ifor important reasons” and one case that Kassab cites, which was decided before
Menchaca, iso the “most analogous.” See Letter at 1–2. Kassab’s claims are not accurate.
Kassab’s attempt to distinguish Stover v. ADM Milling Co., No. 05-17-00778-CV, 2018
WL 6818561 (Tex. App.—Dallas Dec. 28, 2018, pet. denied) is so ineffective it is worth
highlighting. In Stover, the jury had to unanimously answer three sets of questions to support an
award of exemplary damages: (a) “jury question nos. 5 and 6,” which found liability for fraud and
statutory fraud; (b) jury question nos. 15 and 16, which found clear and convincing evidence and
2 See Jury Verdict at 7–8, 24, & 26, attached as Ex. A to the Motion.
September 22, 2023
Page 3
malice; and (c) jury question no. 17, which found the amount of exemplary damages. See Stover,
2018 WL 6818561, at *12. The court upheld the jury’s award of exemplary damages even
though the jury did not sign a certificate of unanimity for jury questions nos. 5 and 6. Id.
Kassab contends Stover is distinguishable because the Jury, in this case, did not sign a
certificate of unanimity for Question 17 (clear and convincing evidence of malicer), and the jury in
Stover certified that its answers were unanimous in response to the equivalent qluestions—question
nos. 15 and 16 (on clear and convincing evidence and malice). See Letter at 1. But this
“distinguishing” fact is a distinction without a difference and is not helpfucl for Kassab. In Stover,
the jury needed to unanimously answer three sets of questions—sets “at,” “b,” and “c”—to support
an award of exemplary damages. But the jury did not sign a certificaite of unanimity for questions
5 and 6 (question set “a”). Id. The court nevertheless found that exemplary damages were proper
because the jury certified it was unanimous on questions 15 ands 16, and those questions “instructed
the jury to answer those questions” only if the jury was unanimous for at least one of the questions
in question set “a.” Id. This result—that not all predicrate answers to a finding of exemplary
damages require a certificate of unanimity—is fatal toB Kassab’s argument.
Here, the question is whether the jury’s answers to three questions—Questions 2, 17, and
19—were unanimous. Like Stover, the Jury ceri ltified it was unanimous for two out of the three
relevant questions.3 Also similar to Stover, th a e Jury signed a certificate of unanimity for Question
19, which was predicated on the Jury unanimously answering the question the Jury did not
separately certify unanimity for—Quesotio f n 17.4 It does not matter that there is no certificate of
unanimity for Question 17 (malice) reather than Question 2 (liability). The point is that, if a jury
answers an exemplary damages question predicated on a unanimous answer to a prior exemplary
damages question (whether the fprior question be a threshold liability question or a malice
question), then, absent other evidence, the prior question is considered to have been unanimously
answered even absent a unpanimity certificate. The reasoning of Stover illustrates that the Jury’s
findings are sufficient because the “jury is presumed to have followed the trial court’s instructions”
to answer “Yes” to Question 17 only if it was unanimous. See Stover, 2018 WL 6818561, at *12.
Kassab’s catitempt to distinguish two other cases Pohl cited does little to help his position.
Kassab argues thfat Bruce v. Oscar Renda Contracting, 657 S.W.3d 453 (Tex. App.—El Paso 2022,
pet. filed) is distinguishable because “there was no Additional Certificate in which the jury was
instructedU to certify whether certain jury questions were unanimous.” Letter at 1. That is
misleading at best. There was a certificate of unanimity, but it could not be used because the
questions were misnumbered. See Bruce, 657 S.W.3d at 457. Regardless, the fact that exemplary
damages were awarded despite there not being a certificate of unanimity supports Pohl’s position
here. Bruce demonstrates that a signed certificate of unanimity is not necessary for an award
3 See Jury Verdict at 32–33, attached as Ex. A to the Motion.
4 See id. at 26, 32–33.
September 22, 2023
Page 4
of exemplary damages. The Jury’s answers in this case, which were conditioned on unanimity,
are also sufficient to support the award of exemplary damages. Thus, it was not Pohl’s burden to
object to any purported lack of signature on the certificate of unanimity. As the party seeking to
avoid the Jury’s findings, it was Kassab’s burden to object. See Menchaca, 545 S.W.3d at 519.
Kassab’s discussion of Bryan v. Papalia, 542 S.W.3d 676, 692–93 (Tex.r App.—Houston
[14th Dist.] 2017, rev. granted, judgm’t vacated w.r.m.) also misses the point. lPohl cited this case
because it illustrates what Kassab should have done if he believed that the Jury was not unanimous
concerning Question 17. In Bryan, the jury failed to sign a certificate ofc unanimity for questions
1 and 2, which needed to be unanimous for an award of exemplary datmages. See 542 S.W.3d at
692. However, the jury was instructed to answer “yes” to question i2 only if it was unanimous to
both questions 1 and 2. See id. Contrary to Kassab’s suggestion otherwise, the Bryan trial
court briefing showed the defendant—the party opposing asn award of exemplary damages—
requested the jury be polled to ensure it was unanimous.5 Here, Kassab should have done the
same thing. As the party desiring to avoid the effect orf answers that establish liability, under
Menchaca, Kassab needed to object or request a pollinBg of the jury in order to dispute that the Jury
followed the Court’s instructions to only answer “Ynes” to Question 17 if the Jury was unanimous.
Kassab claims the “case most analogousi l to the present case is the “no petition” case of
Redwine v. Peckinpaugh, 535 S.W.3d 44 (Tex. App.—Tyler 2017, no pet.).” Letter at 2. In his
Reply, Pohl explains how Redwine is different for multiple reasons. However, if Kassab’s “most
analogous” case is Redwine, no on-poinot cases support Kassab’s position. Setting aside the fact
that the Tyler Court of Appeals opinieon in Redwine predates the Texas Supreme Court’s opinion
in Menchaca, Redwine is facially not on point because the court polled the jury in Redwine and
confirmed the jury was not unafnimous. Redwine, 535 S.W.3d at 47. Kassab chose not to poll
the jury here. Because of the Court’s instructions, the Jury’s answers to Questions 17 and 19 are
evidence that the Jury was punanimous. Menchaca, 545 S.W.3d at 519; Bruce, 657 S.W.3d at 463.
B. Pohl’s attorneys’ fees from prior litigation are recoverable as damages.
First, under the plain text of TUTSA, Pohl is entitled to recover “actual loss caused by
misappropriationi.” Tex. Civ. Prac. & Rem. Code § 134A.004(a). The jury found that Pohl’s
“actual loss”o included damages measured by the attorneys’ fees in other cases that Kassab’s
misappropriation caused Pohl to incur. This “actual loss” is recoverable.
Second, and regardless of the plain language of TUTSA, Kassab’s argument on the tort-
of-another doctrine is worth briefly addressing. As a threshold issue, published precedent allows
the Court to apply this doctrine. See Dixon Fin. Services, Ltd. v. Chang, 325 S.W.3d 668, 678
(Tex. App.—Houston [1st Dist.] 2010, pet. denied). Kassab does not argue Pohl fails to satisfy
5 See Richard BRYAN et al, Plaintiffs, v. AMERICAN GENERAL LIFE INSURANCE, CO., et al, Defendants., 2015
WL 4184907 (Tex. Dist.) (stating the jury was polled “at the request” of the defendant’s counsel).
September 22, 2023
Page 5
the elements listed in Dixon,6 and instead, Kassab contends the doctrine does not apply because
Pohl “does not have clean hands.” See Letter at 3. This argument fails for at least two reasons.
First, there is no clean hands requirement. Second, the Jury did not find Pohl had unclean hands.
1. There is no clean hands requirement for applying the “tort of another theory.”
Kassab is wrong that the “tort of another theory” includes a clean hands requirement. See
Letter at 3. While the Texas Supreme Court has not yet resolved the split among the courts of
appeals on the applicability of this doctrine, its discussion of the tort-of-anotther doctrine indicates
that it does not have a clean hands requirement. See Akin, Gump, Straruss, Hauer & Feld, L.L.P.
v. Nat’l Dev. & Research Corp., 299 S.W.3d 106 (Tex. 2009). Precedent, like Dixon, and cases
from other courts that have applied this doctrine, also do not include any requirement that a party
must have clean hands or be “wholly innocent” to recover fees sas damages. See, e.g., Dixon, 325
S.W.3d at 678; Massey v. Columbus State Bank, 35 S.W.3de 697, 701 (Tex. App.—Houston [1st
Dist.] 2000, pet. denied); Lesikar v. Rappeport, 33 S.W.3d 282, 306 (Tex. App.—Texarkana 2000,
pet. denied); Standard Fire Ins. Co. v. Stephenson, 963 S.W.2d 81, 90 (Tex. App.—Beaumont
1997, no pet.); Symetra Life Ins. Co. v. Rapid Settlements, Ltd., 775 F.3d 242, 251 (5th Cir. 2014).
Because there is no clean hands or whollly innocent party requirement for the tort-of-
another doctrine, the Court should ignore thisa argument by Kassab.
2. There is no Jury finding that Pohl has unclean hands.
The Jury did not find that Poehl had unclean hands. Thus, nothing would change even if
the Court agreed with Kassab that thce equitable nature of the doctrine makes the defense of unclean
hands relevant. See Letter at 3. fRegardless of whether the Jury found wrongful conduct by Pohl
in connection with his trade secrets claim—which Pohl disputes it did—the unclean hands defense
would still not apply because there is no finding that any wrongful conduct of Pohl injured Kassab.
To establish anC unclean hands defense, Kassab “must show an injury to himself arising
from the conduct.” Slee Wood v. Wiggins, 650 S.W.3d 533, 556 (Tex. App.—Houston [1st Dist.]
2021, pet. denied).i “‘The clean hands maxim should not be applied when the defendants have not
been seriously fhiarmed and the wrong complained of can be corrected without applying the
doctrine.’” Id. (citation omitted). In Question 3, the Jury found unspecified “wrongful conduct”
by Pohl cUontributed to an unspecified “injury.”7 Nothing connects that conduct to Kassab, much
less any injury to Kassab. Absolutely nothing demonstrates that Kassab was injured by any
“wrongful conduct” by Pohl. Thus, the defense of unclean hands does not and cannot apply.
6 See Dixon, 325 S.W.3d at 678 (“Equitable principles allow the recovery of attorney’s fees as actual damages when
a party was required to prosecute or defend a prior legal action as a consequence of a wrongful act of the defendant.”).
7 See Jury Verdict at 9, attached as Ex. A to the Motion.
September 22, 2023
Page 6
C. Conspiracy is not preempted.
Kassab contends that proportionate responsibility applies to TUTSA claims, yet he then
argues that conspiracy is preempted and cannot apply. Despite having the opportunity, Kassab
does not explain why conspiracy is preempted, yet proportionate responsibility still survives. See
generally Letter. His failure to do so is telling. r
Rather than address Pohl’s argument, Kassab falsely claims that “Pohl asserts that no Texas
case law supports the proposition that conspiracy is preempted by TUTSA.”t See Letter at 4. That
is not what Pohl said. Pohl’s Reply stated “Kassab also has no Texasr caselaw finding there can
no longer be a conspiracy to misappropriate trade secrets to support his TUTSA preemption
argument.” Kassab’s letter all but confirms that what Pohl said is true by failing to cite any
such case. The Court should apply Texas law that permits joints and several liability when there is
a conspiracy to misappropriate trade secrets. See, e.g., Whitleock v. CSI Risk Mgmt., LLC, No. 05-
19-01297-CV, 2021 WL 1712215, at *13 (Tex. App.—Dallas Apr. 30, 2021, pet. denied), reh’g
denied (June 7, 2021) (finding conspiracy was supported by a misappropriation of trade secrets).
D. Kassab’s liability is not predicatend on the Jury finding that Precision
misappropriated Pohl’s trade secretls.
Kassab contends that Pohl cannot “lMegally recover against Kassab after the jury concluded
that Precision, and those associated with Precision, did not misappropriate anything.” Letter at 4.
Kassab’s theory is he cannot engage in misappropriation if the person who gave him the trade
secrets did not also engage in misappropriation. This argument fails for multiple reasons,
including that the “factual” premisei of the argument is simply false.
First, Kassab’s argument is premised on his claim that Precision “provided Pohl’s alleged
information to Kassab.” Letter at 4. But the Jury never found that Kassab received Pohl’s trade
secrets from Precision. Ionstead, the evidence at trial demonstrated that Favre (not Precision) sold
Pohl’s trade secrets to Kassab. The Jury did find that Favre misappropriated Pohl’s trade secrets.8
The fact that Kassaba obtained the trade secrets from Favre is fatal to Kassab’s argument. Further,
the fact that the jucry found that Favre misappropriated Pohl’s trade secrets underscores the falsity
of Kassab’s rfepresentation to the Court that “those associated with Precision did not
misapproprniate anything.” Letter at 4.
Second, Kassab’s argument also requires the Court to believe that the Jury not finding
misappropriation by Precision necessarily means that “Precision either owed no duty to Pohl or it
breached no duty to Pohl when it provided Pohl’s alleged information to Kassab.” Letter at 4.
This is not true. The Jury could have answered “No” misappropriation for Precision for other
reasons. Pohl had no reason to present the Jury with evidence of Precision improperly disclosing
8 See Jury Verdict at 7–8.
September 22, 2023
Page 7
or using Pohl’s trade secrets because such evidence was not relevant to Pohl’s case. Kassab, not
Pohl, designated Precision as a responsible third party and requested that Precision be listed in the
Jury Charge. It was incumbent on Kassab to put forward evidence on this issue. Further, if it were
relevant, Kassab should have presented evidence and requested an affirmative Jury finding to
establish that Precision did not breach any duty to Pohl when it allegedly disclosedk or used Pohl’s
trade secrets. While Pohl disputes that this finding would have defeated Pohl’s terade secrets claim,
it does not matter if it would have, because Kassab did not secure such a findCing.9
CONCLUSION c
Pohl respectfully requests that the Court grant Pohl’s Motion, enter judgment in the form
attached as Exhibit B to the Motion, and overrule Kassab’s objections to entry of judgment.
Sincerely, s
REYNOLDS FrRIZZELL LLP
By: Harris Y. Wells
yJean C. Frizzell
iState Bar No. 07484650
Harris Y. Wells
State Bar No. 24106563
o1100 Louisiana St., Suite 3500
e Houston, Texas 77002
Tel. 713.485.7200
O Fax 713.485.7250
 jfrizzell@reynoldsfrizzell.com
p hwells@reynoldsfrizzell.com
On behalf of Plaintiffs Michael Pohl and
a Law Office of Michael A. Pohl
9 See generally id.
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Suni Blue on behalf of Harris Wells
Bar No. 24106563
sblue@reynoldsfrizzell.com r
Envelope ID: 79868932
Filing Code Description: No Fee Documents
Filing Description: Pohl's Letter in Response to Kassab's Postt-Hearing
Letter i
Status as of 9/25/2023 8:44 AM CST s
Case Contacts 
Name BarNumber Email g TimestampSubmitted Status
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 9/22/2023 9:53:52 PM SENT
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 9/22/2023 9:53:52 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 9/22/2023 9:53:52 PM SENT
Kevin Dubose 6150500 kdubose@aadjtlaw.com 9/22/2023 9:53:52 PM SENT
Marisa Barrera Cruz Hurd 24041157 mhurd@adjtlaw.com 9/22/2023 9:53:52 PM SENT
Lance Kassab lance@kassab.law 9/22/2023 9:53:52 PM SENT
David Kassab cdavid@kassab.law 9/22/2023 9:53:52 PM SENT
Nicholas Pierce fnicholas@kassab.law 9/22/2023 9:53:52 PM SENT
Lance Kassab  eserve@kassab.law 9/22/2023 9:53:52 PM SENT
Thallia Malespin tmalespin@reynoldsfrizzell.com 9/22/2023 9:53:52 PM SENT
Misty Davis C mdavis@reynoldsfrizzell.com 9/22/2023 9:53:52 PM SENT
Harris Wells a hwells@reynoldsfrizzell.com 9/22/2023 9:53:52 PM SENT
Andrea Mendez andrea@kassab.law 9/22/2023 9:53:52 PM SENT
Murray JFogler o mfogler@foglerbrar.com 9/22/2023 9:53:52 PM SENT
Murray FoglerU mfogler@fbfog.com 9/22/2023 9:53:52 PM SENT
D Kassab david@kassab.law 9/22/2023 9:53:52 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 9/22/2023 9:53:52 PM SENT
L Kassab lance@kassab.law 9/22/2023 9:53:52 PM SENT
Kelly Skelton reception@kassab.law 9/22/2023 9:53:52 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 9/22/2023 9:53:52 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 9/22/2023 9:53:52 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 9/22/2023 9:53:52 PM SENT"
60,2023-09-18,RPL,Pohl,Reply ISO Mtn for Final Judgment,"Pohl's Reply in Support of Motion for Entry of Final Judgment, responding to Kassab's five objections to the proposed judgment regarding exemplary damages unanimity, attorneys' fees recoverability, overlapping damages, conspiracy preemption, and Precision's exoneration","Reply brief filed September 18, 2023 in the 281st Judicial District Court, Harris County, Cause No. 2018-58419. Filed three days after Kassab's September 15, 2023 objections to Pohl's September 5, 2023 Motion for Entry of Final Judgment. Addresses each of Kassab's five objections and argues the court must enter judgment consistent with the jury verdict.",JDGMT-1,N/A,Phase 5,2023-09-18_RPL_Pohl-Reply-ISO-Mtn-for-Final-Judgment_FILED.pdf,That the Court overrule Kassab's objections and enter the Final Judgment in the form attached to the Motion as Exhibit B,"9/18/2023 8:21 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 79681130
By: Bonnie Lugo
Filed: 9/18/2023 8:21 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL AND LAW OFFICE OF § IN THE DISTRICT COURT OF
MICHAEL A. POHL, PLLC, §
Plaintiffs, §
V. § k
§ e
SCOTT FAVRE and SCOTT M. FAVRE PA, § C l
LLC; PRECISION MARKETING GROUP, § HARRIS COUNTY, TEXAS
LLC; LANCE CHRISTOPHER KASSAB and § c
LANCE CHRISTOPHER KASSAB, P.C. d/b/a § r
THE KASSAB LAW FIRM; TINA § s
NICHOLSON and BAKER NICHOLSON, §
LLP d/b/a BAKER NICHOLSON LAW § s
FIRM; and DOUGLAS MONTAGUE III and § s
MONTAGUE PITTMAN & VARNADO, P.A., §
Defendants. § r281ST JUDICIAL DISTRICT
POHL’S REPLY IN SUPPORT OF HIS MOTION FOR ENTRY OF FINAL JUDGMENT
On September 5, 2023, Plaintiffs Michaell Pohl and Law Offices of Michael A. Pohl PLLC
(collectively, “Pohl”) filed their motion foMr entry of a Final Judgment and to adjudge costs (the
“Motion”). On September 15, 2023, Lance Christopher Kassab and Lance Christopher Kassab,
P.C. d/b/a The Kassab Law Firm’s (collectively, “Kassab”) filed Objections to Pohl’s Proposed
Final Judgment (the “Response”). Kassab fails to demonstrate in the Response that the Court
would commit error in any way by entering final judgment in the form requested by Pohl.
 OVERVIEW
Kassab liscts five general objections to entry of judgment. None of the objections withstand
scrutiny.
• Kassab objects to the inclusion of exemplary damages in the judgment because he
contends the Jury’s answer of “Yes” to Question 17 was not unanimous. But
Kassab is factually incorrect because, on its face, the Jury Verdict shows that the
Jury unanimously answered “Yes” to Question 17. The Court instructed the Jury
to only answer “Yes,” in response to Question 17 if it was unanimous, and the Jury
is presumed to have followed those instructions. Moreover, the Court instructed
the Jury to answer Question 19 “only if you unanimously answered “Yes” to
Question no. 17,” and the Jury answered Question 19. k
• Kassab objects to the inclusion of attorneys’ fees from a prCiorl lawsuit as part of
Pohl’s damages. But Pohl’s damages are recoverable, becacuse attorneys’ fees from
a prior, different lawsuit—not the current lawsuit—can properly constitute actual
loss, which are recoverable damages under TUTSsA.
• TUTSA expressly authorizes the recovery ofg both actual loss and unjust enrichment
damages together. The Jury was instruBcted to not award duplicative damages and
awarded both damages. Thus, Pohyl is entitled to recover both amounts.
• Conspiracy is a means of imaposing joint and several liability. It is not an
independent claim givingf rise to a remedy that could conflict with TUTSA.
Conspiracy is not preempted by TUTSA or the proportionate responsibility statute,
and Kassab was unfable to cite any binding precedent stating otherwise.
• The jury’s finding that Precision did not misappropriate trade secrets is consistent
with itsC finding that Kassab—who acquired those trade secrets from Favre, not
Precision—did misappropriate Pohl’s trade secrets.
f DISCUSSION
I. TUhe Jury properly awarded Pohl exemplary damages.
Kassab contends that an award of exemplary damages is unsupported and improper
because the Jury did not unanimously answer “Yes” in response to Question 17. See Response at
3. This is not true. On its face, the Jury Charge shows that the Jury unanimously answered “Yes”
to Question 17 after being instructed to only answer “Yes” if the finding was unanimous. If Kassab
believed that the certificate of unanimity was in conflict with the findings contained in the Jury
Verdict, it was his duty to request a polling of the Jury. While no actual conflict exists, Kassab’s
failure to raise this issue waived any conflict that might exist. k
“The jury is presumed to have followed the court’s instructions.” Collumbia Rio Grande
Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 862 (Tex. 2009). When cpossible, a court “must”
“reasonably construe the [jury’s] findings in a way that harmonizes thsem.” USAA Tex. Lloyds Co.
v. Menchaca, 545 S.W.3d 479, 509 (Tex. 2018); Bender v. S. Psac. Transp. Co., 600 S.W.2d 257,
260 (Tex. 1980). Failure to reconcile answers in favor of the jury’s verdict when possible is
reversible error. Luna v. Southern Pacific Transp. Co., 724 S.W.2d 383, 384 (Tex. 1987). Even
where the jury findings are ambiguous or unclear, the court must try to interpret the findings so as
to uphold the verdict. Jackson v. U.S. Fid. & Gauar. Co., 689 S.W.2d 408, 412 (Tex. 1985). When
a party contends that a jury’s award of exemplary damages is not supported by a unanimous jury
finding, it is reviewed as a “no evidenece” point. Redwine v. Peckinpaugh, 535 S.W.3d 44, 50 (Tex.
App.—Tyler 2017, no pet.). f
There is clear evidenyce that the Jury made the required unanimous findings supporting an
award of exemplary daCmages. First, the fact that the Jury answered “Yes” in response to Question
17 shows that its finding was unanimous. The Jury was instructed that it could only answer “Yes”
to Question 17f iff its answer was “unanimous.”1
SeUcond, the fact that the Jury awarded exemplary damages in response to Question 19 also
shows that its answer to Question 17 was unanimous. The Court instructed the Jury that it could
only answer Question 19 if the Jury “unanimously answered ‘Yes’ to Question No. 17 or Question
1 Jury Charge at 24, attached as Ex. A to the Motion.
No. 18.”2 The Jury did not answer Question 18.3 But the Jury answered Question 19 and found
that an award of exemplary damages of $3,000,000 against Kassab was proper.4 Given the Court’s
instructions, the Jury only could have answered this question if it unanimously answered “Yes” to
Question 17. k
The Court’s instructions to the Jury show that its answer in response tlo Question 17 was
unanimous. See Bruce v. Oscar Renda Contracting, 657 S.W.3d 453, 4c64 (Tex. App.—El Paso
2022, pet. filed) (“Because the jury was instructed to only answer thse gross negligence question,
and the exemplary damages award question if unanimity was resached, we must presume it did so
by following the instructions.”). In contrast, Kassab’s argument requires the Court to presume that
the Jury ignored the Court’s instructions in response to multiple questions, which would be an
improper and impermissible presumption. Columbia Rio Grande Healthcare, L.P., 284 S.W.3d at
862 (“The jury is presumed to have followed athe court’s instructions.”). Kassab contends that the
Jury’s answer to Question 17 was not unanimous because the Presiding Juror appears to have
inadvertently failed to sign the certificeate of unanimity with respect to Question 17. See Response
at 3–4. This contention is not sufpported by the Jury’s affirmative findings based on the Court’s
instructions as reflected in thye Jury Verdict.
The Dallas CouCrt of Appeals confronted a similar situation in Stover v. ADM Milling Co.,
No. 05-17-00778-CV, 2018 WL 6818561 (Tex. App.—Dallas Dec. 28, 2018, pet. denied). The
court was askefdf to find that the jury’s award of exemplary damages was not supported “because
the findinUgs on the threshold jury question nos. 5 and 6 were not certified to be unanimous.” 2018
WL 6818561, at *12. But the court rejected this argument and found that “the evidence is legally
2 Id. at 26.
3 Id. at 25.
4 Id. at 26.
sufficient to support the jury's award of exemplary damages” because the jury later unanimously
answered questions predicated on unanimous answers to question nos. 5 and 6. See id. The court
held:
[W]e address Holmes and Holmes Law's argument that the evidence wask legally
insufficient to support the jury's award of exemplary damages in jury qeuestion no.
17 because the findings on the threshold jury question nos. 5 and l6 were not
certified to be unanimous. In support of their argument, they point to the verdict
certificate where the jury stated, ‘Our verdict is not unanimous. Ecleven of us have
agreed to each and every answer and have signed the certificate rbelow.’ However,
the record also contains an additional certificate signed by thse presiding juror that
states, ""I certify that the jury was unanimous in answering QDuestion No. 15, 16, 17,
and 18. All 12 of us agreed to each of the answers."" In sjury question nos. 5 and 6,
the jury found Holmes and Holmes Law liable for comsmon law fraud and statutory
fraud. The instructions for those jury questions did not require a unanimous
verdict. However, both jury question nos. 15 (clrear and convincing evidence of
fraud and statutory fraud) and 16 (malice) instructed the jury to answer those
questions ‘only if [] [they] [] unanimously answered 'Yes' to any part of Question
No. 5 [common law fraud] or if [they] unanimously answered 'Yes' to any part of
Question No. 6 [statutory fraud] and Quelstion No. 7 [actual awareness].’ Further,
jury question no. 17 (exemplary damaages) instructed the jury that they should only
answer the question ‘if [they] unaMnimously answered 'Yes' to Question 15 or
Question No. 16.’ The jury is presumed to have followed the trial court's
instructions. See, e.g., Columbia Rio Grande Healthcare L.P. v. Hawley, 284
S.W.3d 851, 862 (Tex. 2009)e. We conclude the evidence is legally sufficient to
support the jury's award of exemplary damages in jury question no. 17. Holmes
and Holmes Law's issue 3f.3(a) is decided against them.
Id. y
Stover is directCly on point with the facts of this case and directly refutes the argument
asserted by Kassab.a
In contrafst, the case Kassab relies on—Redwine v. Peckinpaugh, 535 S.W.3d 44, 50 (Tex.
App.—TyUler 2017, no pet.)—is different for many reasons. In Redwine, the jury had a single cause
of action for defamation before it. Redwine, 535 S.W.3d at 47. While it answered an exemplary
damages question that it was instructed to only answer if unanimous, its answer was directly in
conflict with its certification that the entire verdict was otherwise not unanimous. See id. at 51–
52. The court then polled the jury and confirmed the lack of unanimity. See id.
As explained in Bruce v. Oscar Renda Contracting, because Redwine dealt with a single
cause of action giving rise to liability, the certification of non-unanimity was in conflict with an
award of exemplary damages. 657 S.W.3d 453, 464 (Tex. App.—El Paso 2022, pet. filed). The
court in Bruce contrasted the facts in Redwine with a set a facts similar to those in thkis case, saying:
“We conclude that the jury’s certification at issue here does not have the samle conclusive effect
as it did in Redwine, given that this jury was permitted to answer severacl questions by a 10 to 2
vote, unless otherwise instructed to only answer upon reaching unansimity.” Id. In other words,
because not all of the verdict needed to unanimous, a general cerstificate of non-unanimity is not in
conflict with an award of exemplary damages.
Furthermore, in this case, like in Stover, the jury unanimously answered a question
(Question 19) that was predicated on a unanimous answer to Question 17 after answering Question
17. Like in Stover, the Jury here could not haave answered the latter question (Question 19) unless
it unanimously answered the earlier question at issue (Question 17). That was not the case in
Redwine. e
The Jury is presumed to have ffollowed the Court’s instructions, and the Court must “reasonably
construe the [jury’s] findingsy in a way that harmonizes them.” USAA Tex. Lloyds Co., 545 S.W.3d
at 509. Given the JurCy’s responses to Questions 17 and 19, and the Court’s related unanimity
instructions, the only reasonable construction of the Jury’s findings is that the Jury was unanimous
in answering “Yf fes” to Question 17. Because there is evidence indicating that the Jury unanimously
found exeUmplary damages against Kassab, the Court “must” give effect to the Jury’s findings and
enter a judgment awarding exemplary damages against Kassab. See id.; Bender v. S. Pac. Transp.
Co., 600 S.W.2d at 260.
Finally, and as we previously stated, while no actual conflict in the Jury’s answers exists,
Kassab’s failure to raise this issue before the Jury was discharged waived the alleged conflict that
Kassab now claims to exist. Texas law is well settled that “to preserve error based on fatally
conflicting jury answers, parties must raise that objection before the trial court dischkarges the jury.”
USAA Texas Lloyds, 545 S.W.3d 479, 518 (discussing how Rule 295 requlires that potential
conflicts in the verdict should be resolved by the trial court giving instrucctions to the jury before
the jury is dismissed). The rule is the same whether the complaint resgarding the jury’s answers is
that they are incomplete or that they are in fatal conflict; the obsjection must be raised before the
jury is discharged in order to afford the trial court the opportunity to correct the error. As further
stated by the Supreme Court in USAA Texas Lloyds:
[Texas Rule of Civil Procedure] 295 provides the procedure for resolving
incomplete and nonresponsive jury verdiclts as well as those containing conflicting
answers. Tex. R. Civ. P. 295. Addresasing incomplete verdicts, we have long held
that a judgment will not be reversMed ""unless the party who would benefit from
answers to the issues objects to the incomplete verdict before the jury is discharged,
making it clear that he desires that the jury redeliberate on the issues or that the trial
court grant a mistrial."" Fleeet v. Fleet, 711 S.W.2d 1, 3 (Tex. 1986); see also
Continental Cas. Co. v. Street, 379 S.W.2d 648, 650 (Tex. 1964) (holding party
failed to preserve error bfecause he ""did not object to the acceptance of the jury
verdict as incomplete, and thus by timely objection afford the trial court the
opportunity, before thye jury was discharged, of correcting the error (if such it was)
of accepting the verdict with the issues unanswered""). We conclude that the same
error-preservatiCon requirement applies when a party complains of a judgment based
on conflicting jury answers.
Id. at 519. c
Had Kassab timely raised the asserted conflict prior to the jury being discharged, Rule 295
would have resolved any confusion regarding how many jurors joined in answering the Question
17. That is exactly what happened in Bryan v. Papalia, 542 S.W.3d 676, 692–93 (Tex. App.—
Houston [14th Dist.] 2017, rev. granted, judgm’t vacated w.r.m.), where the Fourteenth Court of
Appeals addressed the issue at length as follows:
When the jury originally returned its verdict, the verdict form showed that the jury
had answered “yes” as to Question 1 for Papalia and “yes” as to Question 2. The
trial court had instructed the jury that it could answer “yes” to Question 2 only if
all jurors agreed on that answer and only if all jurors had agreed to answer “yes” in
Question 1 as to Papalia. Despite this instruction, the jury’s verdict certificate
originally showed that only ten jurors had agreed to all of the jury’s answers so only
ten had agreed to answer Question 1 “yes” for Papalia and to answer Qukestion 2
“yes,” but, in light of the trial court’s instructions in Question 2, ethe jury’s
affirmative answer to Question 2 indicated that the jury had answeredl these two
questions unanimously.
After discussing this situation with counsel and polling the jur iry, the trial court
explained to the jury in open court and on the record that the vesrdict form contained
an ambiguity because the jury was instructed to answer “yeDs” to Question 2 only if
all jurors agreed to that answer, but the jurors indicated in the verdict certificate
that only ten jurors agreed to this answer. The trial cosurt then directed the jury to
return to the jury room and clarify on the verdict certificate whether the answer to
Question 2 was unanimous . . . . The jury later rerturned with an amended verdict
certificate indicating that the answers to the first two questions were unanimous
and that ten jurors agreed to the answers to Questions 3 through 9 . . .
Papalia argued in the JNOV Motion that the trial court should disregard the answer
to Question 2 because only ten jurors agrreed to that answer and signed the original
verdict certificate. Though it is trueM that only ten jurors signed the original verdict
certificate, after the jury returned to the jury room, the jury amended the verdict
certificate to show that all jurorso agreed to the answers to the first two questions. In
this context, the original verdiect certificate does not provide a basis for disregarding
the jury’s answer to Questiocn 2.
Bryan, 542 S.W.3d at 692–93.
The Court “must” reconcile the jury’s answers to support its award of exemplary damages
against Kassab. Here, the only way to reconcile the Jury Verdict is to give effect to the Jury’s
answers to Questicons 17 and 19. But even assuming arguendo that reconciliation were not possible
because of ano assertedly “fatal” conflict, Kassab waived the complaint by not raising it before the
jury was discharged. Id. As the party relying on the asserted conflict to avoid the effect of the
answers awarding exemplary damages, Kassab bore the burden to timely object and failed to do
so. Id. (citing Burbage v. Burbage, 447 S.W.3d 249, 256 (Tex. 2014)). Because Kassab did not
make any such timely objection, he waived the right to complain regarding the alleged conflict.
II. Pohl is entitled to recover his actual losses as damages under TUTSA.
Kassab objects to Pohl’s damages that are based on attorneys’ fees from underlying
proceedings based on two grounds. First, Kassab says attorneys’ fees are not recoverable under
TUTSA. See Response at 5–10. Second, Kassab argues that the attorneys’ kfees cannot be
recovered in connection with the grievance procedures. See id. at 10. Neither lof these arguments
is correct. c
A. Pohl’s TUTSA damages are recoverable. s
Despite having previously asserted the same rejected arguments5 on multiple prior
occasions, Kassab continues to claim that portions of Pohl’s edamages are not recoverable because
they are based on attorneys’ fees incurred in separate proceedings. See Response at 5–10. Kassab
was wrong before, and he remains wrong now. Int is true that attorneys’ fees typically do not
constitute actual damages when incurred in the rsame lawsuit. But attorneys’ fees from a separate
lawsuit—incurred as the result of wrongful conduct of the defendant—can constitute actual
damages in a separate, subsequent laewsuit. See, e.g., Akin Gump Strauss Hauer & Feld, LLP v.
National Development & Researchf Corp., 299 S.W.3d 106, 119-22 (Tex. 2009). Kassab conflates
these distinct scenarios in aryguing otherwise.
TUTSA authorizes the recovery of damages, including “actual loss caused by
misappropriation.” a Tex. Civ. Prac. & Rem. Code § 134A.004(a). On its face, the plain meaning
of “actual loss” fis broad and encompasses consequential losses. This broad definition of damages
is not surprising, because a “‘flexible and imaginative’ approach is applied to the calculation of
damages in misappropriation-of-trade-secrets cases.” Sw. Energy Prod. Co. v. Berry-Helfand, 491
5 See Kassab’s Traditional Motion for Summary Judgment, at 76–80 filed Aug. 29, 2022; Pohl’s Response in
Opposition to the Traditional Motions for Summary Judgment Filed by the Kassab Defendants and the Nicholson
Defendants, filed Sept. 12, 2022; see also Court Order, entered Oct. 31, 2022 (denying Kassab’s request for summary
judgment). Pohl incorporates his prior briefing on this issue by reference.
S.W.3d 699, 710 (Tex. 2016). To the extent that the Court wishes to look at persuasive authority
from other states, they too have recognized that the definition of “actual loss” is broad and
encompasses tort damages where a “plaintiff must prove that its loss was caused by the defendant’s
violation.” See World Wide Prosthetic Supply, Inc. v. Mikulsky, 640 N.W.2d 764, 7k70 (Wis. 2002);
see also Dunsmore & Associates, Ltd. v. D'Alessio, No. 409906, 2000 WL 124l995, at *10 (Conn.
Super. Ct. Jan. 6, 2000) (“Actual loss in this context means the amount ofc money that the plaintiff
lost from the defendant's misappropriation; it is measured by how smuch better off the plaintiff
would have been but for the defendant's misappropriation.”). s 
The weakness of Kassab’s position is showcased by his misleading use of caselaw. Kassab
cites to out of state caselaw asserting that “‘actual loss’ means ‘loss of profits, lost customers or
lost market share.’” See Response at 5 (citations omitted). While Pohl disputes that Florida limits
actual loss damages to these three categories, iaf it did, it demonstrates why the Court should ignore
this out-of-state authority. Kassab does not dispute that Texas allows recovery of damages outside
those three categories of damages. Seee, e.g., Response at 10–11 (not disputing that market value
is recoverable as a measure of “acftual loss”).
Kassab’s citations toy Texas caselaw fares little better. This case concerns recovery of
attorneys’ fees incurredC in separate proceedings. But Kassab cites to multiple cases dealing with
recovery of attorne a ys’ fees incurred in the same proceeding. See Response at 7.6 Some of the
6 Lacore Enters., LLC v. Angles, No. 05-21-00798-CV, 2023 WL 2607562, at *9 (Tex. App.—Dallas Mar. 23, 2023,
no pet.) (standing for the non-controversial conclusion that fees from the same lawsuit are not recoverable as damages
under the American rule); O’Neal v. Dale, No. 02-20-00173-CV, 2021 WL 210848, at *10 (Tex. App.—Fort Worth
Jan. 21, 2021, no pet.) (standing for the uncontroversial proposition that fees incurred in the present lawsuit do not
typically constitute damages); Woodhaven Partners, Ltd. v. Shamoun & Norman, L.L.P., 422 S.W.3d 821, 839 (Tex.
App.—Dallas 2014, no pet.) (“the only damages stated by appellants consist of legal fees and expenses they incurred
in defending against this lawsuit brought by appellee and in prosecuting their counterclaims.”).
10
cases did not concern recovery of attorneys’ fees at all.7 One is cited for a proposition that was
subsequently overruled.8 The Court should ignore Kassab’s misleading citations to caselaw that
do not govern the issue before the Court.
And even if the Court were not convinced that TUTSA alone authorized kthe recovery of
Pohl’s damages, Pohl’s damages are recoverable under equitable principlesl. See Dixon Fin.
Services, Ltd. v. Chang, 325 S.W.3d 668, 678 (Tex. App.—Houston [1st cDist.] 2010, pet. denied)
(“Equitable principles allow the recovery of attorney’s fees as actuasl damages when a party was
required to prosecute or defend a prior legal action as a conssequence of a wrongful act of the
defendant.”).9
Kassab acknowledges the potential applicability of this doctrine, but he claims that Pohl
cannot qualify because “Pohl is not a wholly innocent party.” See Response at 9. Pohl disputes
that the “wholly innocent party” notion is paroperly part of the tort of another doctrine.10 But
7 Tana Oil & Gas Corp. v. McCall, 104 S.W c .3d 80, 81 (Tex. 2003) (rejecting argument that parties could recover for
the value of their own time because thfe Court saw “no causal relationship between the tortious interference the
McCalls allege and the only damageOs they claim.”); Tex. Mut. Ins. Co. v. Ray Ferguson Interests, Inc., No. 01-02-
00807-CV, 2006 WL 648834, at *8 (Tex. App.—Houston [1st Dist.] Mar. 16, 2006, pet. denied) (finding that a
company’s financial loss due to employees spending time on depositions and discovery did not constitute damages in
the same lawsuit). o
8 See Response at 7 (citingC Martin-Simon v. Womack, 68 S.W.3d 793, 797 (Tex. App.—Houston [14th Dist.] 2001,
pet. denied) for the proposition that “attorney’s fees are recoverable only when an agreement between the parties so
provides.”). This is in adilrect conflict with multiple subsequent Texas Supreme Court cases. See, e.g., Akin, Gump,
Strauss, Hauer & Feldi, L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d 106, 120–21 (Tex. 2009) (finding an
award of attorneys’ fees could be proper even absent an agreement between the parties).
9 Kassab continuefs to cite inapplicable caselaw throughout. For example, he cites to Riner v. Neumann, 353 S.W.3d
312, 323 (Tex. App.—Dallas 2011, no pet.) as support for his contention that “[o]ther intermediate courts of appeals
have likewise refused to adopt the tort of another doctrine.” See Response at 8 n.5. This is false. Riner does not
mention the tort of another doctrine. See generally Riner, 353 S.W.3d 312. Instead, the court in that case declined to
adopt an exception to the American rule prohibiting recovery of attorneys’ fees in the same case absent authorization.
See id. at 322.
10 Kassab cites multiple cases demonstrating that there is no wholly innocent party element to the tort of another
theory. See Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d 106 (Tex. 2009);
Naschke v. Gulf Coast Conference, 187 S.W.3d 653 (Tex. App.—Houston [14th Dist.] 2006, pet. denied); Brannan
Paving GP, LLC v. Pavement Markings, Inc., 446 S.W.3d 14 (Tex. App.—Corpus Christi 2013, pet. denied). Kassab’s
reliance on the idea of a wholly innocent party exception is not consistent with the history of this theory. See James
Michael Stanton, Recovering Attorney’s Fees in Equity Under Texas Law: Why Some Texas Courts of Appeal Have
It Wrong, 29 T. Marshall L. Rev. 243, 278 (2004).
11
regardless, Kassab is incorrect that the Jury found that Pohl’s trade secrets damages were caused
by Pohl’s conduct. In response to Question 4—which was the proportionate responsibility
question specifically tied to the trade secrets claim—the Jury assigned Pohl 0% of the fault. See
Ex. A to the Motion at 10. Kassab ignores this question and instead contends the kJury’s response
to Question 3 shows that Pohl is not “wholly innocent.” See Response at 9. Blut this question is
not tied to the misappropriation of trade secrets. See Ex. A to the Motiocn at 9. In fact, the Jury
specifically asked if they should still answer Question 3 even if theys found that no trade secrets
existed. With the agreement of counsel for Kassab, the Court insstructed the Jury that they should
still respond to Question 3 even if they answered “No” to both parts of Question 1.
The attorneys’ fees Pohl incurred in underlying proceedings as the result of Kassab’s
wrongful conduct are recoverable as Pohl’s actual losses in this lawsuit. Kassab’s arguments
otherwise are not supported by binding caselaaw and rely in large part on the misleading use of
caselaw. The Court should reject Kassab’s arguments and enter judgment in favor of Pohl for the
full amount of actual loss damages foeund by the Jury.
B. Rule 17.09 of the fTexas Rules of Disciplinary Procedure is not applicable.
As a threshold mattyer, this lawsuit is not predicted on Kassab filing a grievance or
participating in the grCievance process. Thus, Rule 17.09 of the Texas Rules of Disciplinary
Procedure does not aapply, and the Court should reject Kassab’s argument otherwise. See Response
at 10. This issufe has been briefed extensively before, and Pohl will not repeat the same arguments
further. PUohl incorporates this prior briefing by reference. See, e.g., Pohl’s Rule 166(g) Motion,
at 12–14, filed Nov. 30, 2022 (including the briefing discussed therein). Bottom line, the Court
rejected Kassab’s position on this issue before and should reject it again now.
12
III. Pohl’s requested damages are not improperly overlapping.
Pohl’s requested damages are not overlapping. TUTSA explicitly authorizes the recovery
of both actual damages, and unjust enrichment “that is not taken into account in computing actual
loss.” Tex. Civ. Prac. & Rem. Code § 134A.004. Kassab agrees that the marketk value damages
found by the Jury are “actual loss” damages. Response at 11. He also agrees lthat the Jury found
unjust enrichment damages in the form of avoided development costs. Idc. The only question is if
those damages are overlapping. s
Here, the Jury was specifically told that it should “not award any sum of money on any
element if you have otherwise, under some other element in this question, awarded a sum of money
for the same loss.” See Ex. A to the Motion at 13. Once again, the Court must presume that the
Jury followed its instructions. Columbia Rio Grande Healthcare, L.P., 284 S.W.3d at 862. The
damages are not overlapping because the Jury could have found that the market value damages
compensated Pohl for the loss of value of his trade secrets going forward, as this value was
destroyed by their improper use and edisclosure by Kassab. The Jury also could have found that
this was separate from the loss fassociated with Kassab’s unjust enrichment based on avoided
development costs that wouyld otherwise have been incurred in the past. Because the Jury could
have viewed this unjuCst enrichment as not being accounted for in its award of “actual loss”
damages, it is not dauplicative under TUTSA.
IV. Texas cfontinues to recognize that conspirators are jointly and severally liable.
Kassab argues that the Court should ignore the Jury’s conspiracy finding because he
contends that conspiracy is “either preempted by TUTSA or subject to the [statutory] proportionate
responsibility scheme.” See Response at 11. Kassab cites no binding precedent holding that Pohl’s
conspiracy claim is improper, and the Court should reject Kassab’s arguments.
13
Based on unpublished federal cases, Kassab claims “courts have concluded that Chapter
33’s proportionate responsibility scheme applies to conspiracy claims, rather than joint and several
liability.” See id. at 12. But Kassab ignores contrary published Texas caselaw. The Dallas Court
of Appeals stated that it rejected “the premise that Chapter 33 superseded thek rule that civil
conspiracy findings result in joint and several liability.” Guillory v. Dietrichl, 598 S.W.3d 284,
296 (Tex. App.—Dallas 2020, pet. denied). Other Texas appellate courtcs have come to the same
conclusion. See, e.g., Stephens v. Three Finger Black Shale P’ship,s 580 S.W.3d 687, 719 (Tex.
App.—Eastland 2019, pet. denied) (We are of the opinion that sjoint and several liability attaches
to a civil conspiracy finding and is not affected by the proportionate responsibility statutes.”).
Kassab also has no Texas caselaw finding there can no longer be a conspiracy to
misappropriate trade secrets to support his TUTSA preemption argument. See Response at 11–13.
The absence of this caselaw is telling. Undaer the facts of this case, there is no reason to find
preemption. TUTSA provides that it “displaces conflicting tort, restitutionary, and other law of
this state providing civil remedies fore misappropriation of a trade secret.” Tex. Civ. Prac. & Rem.
Code § 134A.007(a) (emphasis afdded). Conspiracy does not provide a conflicting remedy in this
case.11 It merely provides thyat damages are joint and several.
Conspiracy, likCe proportionate responsibility, does not provide a conflicting remedy that is
preempted under TUTSA. Texas trial courts have continued to submit TUTSA and conspiracy
claims to the jufrfy.12 Pohl’s TUTSA claim provides the remedy—damages for the misappropriation
11 As an aside, Kassab’s TUTSA expert, Joseph Cleveland, appears to assume that allegations of conspiracy can exist
alongside a TUTSA claim, as he makes no mention of preemption in discussing them in conjunction with each other.
Cf. Joseph F. Cleveland, Jr., J. Heath Coffman, Kevin C. Smith, A Practitioner's Guide to the Texas Uniform Trade
Secrets Act, Tex. J. Bus. L. 1, 16 (2019) (discussing how pleading conspiracy in connection with a TUTSA claim “will
virtually guarantee that the TCPA applies”).
12 See, e.g., Whitlock v. CSI Risk Mgmt., LLC, No. 05-19-01297-CV, 2021 WL 1712215, at *13 (Tex. App.—Dallas
Apr. 30, 2021, pet. denied), reh'g denied (June 7, 2021) (holding that the conspiracy finding was supported by the
underlying tort of misappropriation of trade secrets).
14
of Pohl’s trade secrets. Applying proportionate responsibility would modify that remedy so a
defendant is responsible for a percentage of the harm. Kassab does not dispute that TUTSA
permits this modification of the remedy.13 Similarly, applying conspiracy simply makes the same
remedy apply jointly and severally among multiple defendants. That is no more okbjectionable or
inconsistent with TUTSA than the proportionate responsibility statute. The Clourt should reject
Kassab’s selective and incorrect invocation of TUTSA preemption. c
V. The Jury’s misappropriation findings are consistent with seach other.
As a threshold matter, Kassab waived his right to object on the basis of any alleged
inconsistency in the Jury Verdict by not asserting any objections prior to the dismissal of the Jury.
See Bryan v. Papalia, 542 S.W.3d 676, 692–93 (Tex. App.—Houston [14th Dist.] 2017, rev.
granted, judgm’t vacated w.r.m.); Bruce v. Oscar Renda Contracting, 657 S.W.3d 453, 463 (Tex.
App.—El Paso 2022, pet. filed).
But even looking past Kassab’s waiver of this issue, his argument—that “the jury’s finding
of no wrongdoing by Precision destreoys the misappropriation claim against Kassab”—does not
make sense on its face. See Resfponse at 13. Kassab’s argument is that “because [he] acquired
Pohl’s alleged trade secretsy from Precision, and the jury found that Precision acquired the
information lawfully, tChen Kassab could not have misappropriated trade secrets from Pohl.” Id. at
2. But this argumenat is factually incorrect and fails for multiple reasons.
First, Kafssab is wrong. The Jury had ample evidence before it to conclude that Kassab
obtained UPohl’s trade secrets from Favre—by purchasing them through the November 2016
agreement—not from Precision. And the Jury did find that Favre bore some responsibility for the
13 Kassab requested that the Court include Question 4 in the Jury Charge so that the Jury could allocate responsibility
for the TUTSA claim based on the proportionate responsibility statute.
15
misappropriation. See Jury Verdict, at 10, attached as Ex. A to the Motion. This is fatal to
Kassab’s objection.
Second, there is nothing inconsistent about the Jury finding that Precision did not
misappropriate the information and Kassab did. The Jury could have found that Prekcision obtained
the information lawfully because Precision obtained the information at thel request of, while
working for, and while being paid by Pohl. The Jury also could have bacsed its misappropriation
finding on Kassab’s post-acquisition “use” or “disclosure” of the trasde secrets, even if it did find
that Kassab obtained the trade secrets directly from Precision. s 
Because Kassab waived this argument, and because it based on a factually unsupported
version of how Kassab obtained Pohl’s trade secrets, the Court should overrule Kassab’s objection
based on a supposed inconsistency in the Jury’s misappropriation findings.
CONaCLUSION
WHEREFORE, premises considered, Pohl requests that the Court overrule Kassab’s
objections asserted in the Response aend instead enter the Final Judgment in the form attached to
the Motion as Exhibit B, and forf such other and further relief at law or in equity, to which Pohl
may be entitled. y
16
Dated: September 18, 2023 Respectfully submitted,
REYNOLDS FRIZZELL LLP
By: /s/ Jean C. Frizzell
Jean C. Frizzell
State Bar No. 07484650 k
1100 Louisiana St., Suite 3e500
Houston, Texas 77002 l
Tel. 713.485.7200
Fax 713.485.7250 c
jfrizzell@reynoldsrfrizzell.com
Attorney for PlaintifDfs Michael Pohl
and Law Office of Michael A. Pohl, PLLC
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this document was served on all counsel of
record pursuant to the Texas Rules of Civil Proceldure on this 18th day of September 2023.
M /s/ Jean C. Frizzell
 Jean C. Frizzell
17
Automated Certificate of eService
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The filer served this document via email generated by the efiling system
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certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Suni Blue on behalf of Jean Frizzell
Bar No. 7484650
sblue@reynoldsfrizzell.com r
Envelope ID: 79681130
Filing Code Description: No Fee Documents
Filing Description: Pohl's Reply ISO Motion for Entry of Final Jtudgment
Status as of 9/19/2023 8:22 AM CST i
Case Contacts D
Name BarNumber Email e TimestampSubmitted Status
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 9/18/2023 8:21:13 PM SENT
Andrew Johnson ajohnson@Bthompsoncoe.com 9/18/2023 8:21:13 PM SENT
Benjamin Ritz britz@thnompsoncoe.com 9/18/2023 8:21:13 PM SENT
Murray JFogler mfoglielr@foglerbrar.com 9/18/2023 8:21:13 PM SENT
Murray Fogler mfogler@fbfog.com 9/18/2023 8:21:13 PM SENT
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 9/18/2023 8:21:13 PM SENT
Todd Taylor ttaylor@jandflaw.com 9/18/2023 8:21:13 PM SENT
Dale Jefferson 10607900 jefferson@mdjwlaw.com 9/18/2023 8:21:13 PM SENT
Raul Herman Suazo 2O4003021 suazo@mdjwlaw.com 9/18/2023 8:21:13 PM SENT
Scott M.Favre y scott@favrepa.com 9/18/2023 8:21:13 PM SENT
Lawyer Wade o lawyerwade@hotmail.com 9/18/2023 8:21:13 PM SENT
Chris C.Pappas cpappas@krcl.com 9/18/2023 8:21:13 PM SENT
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Non-Party Dona Pohfli DonaLyann@yahoo.com 9/18/2023 8:21:13 PM SENT
Non-Party Edgar Jaimes edgarsroom@gmail.com 9/18/2023 8:21:13 PM SENT
Kevin Dubose 6150500 kdubose@adjtlaw.com 9/18/2023 8:21:13 PM SENT
Marisa Barrera Cruz Hurd 24041157 mhurd@adjtlaw.com 9/18/2023 8:21:13 PM SENT
Andrea Mendez andrea@kassab.law 9/18/2023 8:21:13 PM SENT
Lance Kassab lance@kassab.law 9/18/2023 8:21:13 PM SENT
David Kassab david@kassab.law 9/18/2023 8:21:13 PM SENT
Nicholas Pierce nicholas@kassab.law 9/18/2023 8:21:13 PM SENT
Lance Kassab eserve@kassab.law 9/18/2023 8:21:13 PM SENT
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This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
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certificate of service that complies with all applicable rules.
Suni Blue on behalf of Jean Frizzell
Bar No. 7484650
sblue@reynoldsfrizzell.com r
Envelope ID: 79681130
Filing Code Description: No Fee Documents
Filing Description: Pohl's Reply ISO Motion for Entry of Final Jtudgment
Status as of 9/19/2023 8:22 AM CST i
Case Contacts D
Kevin Graham Cain 24012371 cain@mdjwlaw.com 9/18/2023 8:21:13 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 9/18/2023 8:21:13 PM SENT
L Kassab lance@kasBsab.law 9/18/2023 8:21:13 PM SENT
Kelly Skelton receptionn@kassab.law 9/18/2023 8:21:13 PM SENT
Murray J. Fogler 7207300 mfoglielr@foglerbrar.com 9/18/2023 8:21:13 PM SENT
Thallia Malespin tmalespin@reynoldsfrizzell.com 9/18/2023 8:21:13 PM SENT
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Harris Wells hwells@reynoldsfrizzell.com 9/18/2023 8:21:13 PM SENT
D Kassab david@kassab.law 9/18/2023 8:21:13 PM SENT
Harris Wells O hwells@reynoldsfrizzell.com 9/18/2023 8:21:13 PM SENT"
58,2023-09-05,MTN,Pohl,Mtn for Entry of Final Judgment,"Pohl's Motion for Entry of Final Judgment following jury verdict, requesting court to enter judgment on approximately $6.3M award including actual damages, exemplary damages, attorneys' fees, prejudgment and postjudgment interest, and court costs","Post-trial motion filed September 5, 2023 in the 281st Judicial District Court, Harris County, Cause No. 2018-58419. Filed after jury returned verdict on August 31, 2023, in favor of Pohl on trade secret misappropriation and conspiracy claims against Kassab. Pohl seeks formal entry of final judgment consistent with jury findings. The 189th District Court had previously entered summary judgment against Kassab's barratry counterclaims on February 7, 2022. Trial commenced August 21, 2023 on three claims: theft of trade secrets, conversion, and conspiracy. Kassab's motion for directed verdict was denied on August 29, 2023.",JDGMT-1,GRANTED,Phase 5,2023-09-05_MTN_Pohl-Mtn-for-Entry-of-Final-Judgment_FILED.pdf,"Entry of Final Judgment in the form attached as Exhibit B, awarding: (1) $1,453,040 in actual damages (after $765,000 settlement credit); (2) $1,232,013 in attorneys' fees through trial; (3) conditional appellate attorneys' fees ($175,000 court of appeals, $55,000 petition for review, $85,000 merits briefing, $60,000 through oral argument); (4) $3,000,000 in exemplary damages; (5) $624,986.34 in prejudgment interest through September 18, 2023 (plus $338.38/day thereafter); (6) postjudgment interest at 8.50%; (7) all court costs against Kassab","9/5/2023 6:40 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 79235207
By: Patricia Gonzalez
Filed: 9/5/2023 6:40 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL AND LAW OFFICE OF § IN THE DISTRICT COURT OF
MICHAEL A. POHL, PLLC, §
Plaintiffs, §
V. § k
§ e
SCOTT FAVRE and SCOTT M. FAVRE PA, § C l
LLC; PRECISION MARKETING GROUP, § HARRIS COUNTY, TEXAS
LLC; LANCE CHRISTOPHER KASSAB and § c
LANCE CHRISTOPHER KASSAB, P.C. d/b/a § r
THE KASSAB LAW FIRM; TINA § s
NICHOLSON and BAKER NICHOLSON, §
LLP d/b/a BAKER NICHOLSON LAW § s
FIRM; and DOUGLAS MONTAGUE III and § s
MONTAGUE PITTMAN & VARNADO, P.A., §
Defendants. § r281ST JUDICIAL DISTRICT
POHL’S MOTION FOR ENTRY OF FINAL JUDGMENT
Plaintiffs Michael Pohl and Law Offices lof Michael A. Pohl PLLC (collectively, “Pohl”)
move for entry of a Final Judgment and to aMdjudge costs. In support thereof, Pohl would show the
Court as follows:
On February 7, 2022, the 189th District Court entered a traditional summary judgment
against Defendants Lance Christopher Kassab and Lance Christopher Kassab, P.C. d/b/a The
Kassab Law Firm’s (“Kassab”) counterclaims for civil barratry. The February 7 Order resolved
the barratry counterclaims asserted by Kassab against Pohl.
On Augusct 21, 2023, the case proceeded to trial on three claims filed by Pohl (theft of trade
secrets, conversion, and conspiracy. This Court and the jury heard testimony from witnesses and
experts presented by both Pohl and Kassab.
On August 29, 2023, Kassab moved for a directed verdict and asserted, among other things,
that Pohl’s damages were not recoverable or were not supported by sufficient evidence. The Court
denied Kassab’s motion for directed verdict, implicitly ruling that Pohl’s requested damages were
recoverable and were supported by evidence presented to the jury.
I. THE JURY’S VERDICT
After a trial on the merits, the Court submitted this case to the jury. On Akugust 31, 2023,
the jury returned a verdict. Pohl attaches as Exhibit A the executed jury verdiclt. The jury verdict
found in favor of Pohl on his theft of trade secrets and conspiracy cclaims against Kassab.
Specifically, the jury answered and found, among other things (the fsollowing is not an exclusive
list), as follows: 
• Question 1: Yes, Pohl owned trade secrets in the form of (a) attorney client fee contracts
between Pohl and his clients, and (b) any list of the identities and contact information
of Pohl’s actual, potential or rejected clients.
• Question 2: Yes, the jury unanimaously found that Kassab, Favre,1 Nicholson,2 and
Montague3 misappropriated the trade secrets found in response to Question 1.
• Question 4: The jury assigened the percentage of fault for the injury found in response
to Question 2 as follfows: Kassab at 70%; Favre at 10%; Nicholson at 10%; and
Montague at 10y%. The jury followed the Court’s instructions, expressing the
percentagesC in whole numbers. It assigned 0% fault to Pohl and Precision Marketing
Group, LLC.
• Quefstion 7(1): $1,768,040 is the sum of money that, if paid now in cash, would fairly
Uand reasonably compensate Pohl for his damages incurred in the form of reasonable
1 “Favre” means Scott Favre and Scott M. Favre PA, LLC.
2 “Nicholson” means Tina Nicholson and Baker Nicholson, LLP d/b/a Baker Nicholson Law Firm.
3 “Montague” means Doug Montague and Montague, Pittman & Varnado, P.A.
and necessary attorneys’ fees, expenses, and costs that Pohl incurred in connection with
the lawsuits, appeals, and grievances that Kassab filed against Pohl.
• Question 7(2): $250,000 is the price that a willing buyer and a willing seller would
have agreed on, at the time of the misappropriation, as a fair price for kKassab’s use of
the trade secrets. C l
• Question 7(3): $200,000 is the value of the development costsc that Kassab avoided by
misappropriating Pohl’s trade secrets.
• Question 8: Yes, the misappropriation of Pohl’s tradse secrets by Kassab was a willful
and malicious misappropriation. g
• Question 9: The jury found the followingB are the reasonable fees for the necessary
services of Pohl’s attorneys: (1) $1,23y2,013 for representation in the trial court, (2)
$175,000 for representation throuagh appeal to the court of appeals, (3) $55,000 for
representation at the petition ffor review stage in the Supreme Court of Texas, (4)
$85,000 for representation at the merits briefing stage in the Supreme Court of Texas,
and (5) $60,000 foOr frepresentation through oral argument and the completion of
proceedings in the Supreme Court of Texas.
• Question 15 C : Yes, Kassab was in a conspiracy with Favre, Nicholson, and Montague.
• Questioin 17: Yes, the jury unanimously found that the misappropriation of Pohl’s trade
seocrfets by Kassab was willful and malicious.
• Question 19: Because the jury unanimously answered “Yes,” to Question 17, the jury
followed the Court’s instructions and answered this question. The jury found that
$3,000,000 in exemplary damages should be assessed against Kassab for the conduct
found in response to Question 2.
Consistent with the Court’s orders and the jury verdict, Pohl moves the Court to enter the
form of Judgment attached hereto as Exhibit B.
II. AWARD OF DAMAGES
The Texas Uniform Trade Secrets Act (“TUTSA”) provides a non-exhaukstive list of the
types of damages that are recoverable, which “can include both the actulal loss caused by
misappropriation and the unjust enrichment caused by misappropriatiocn that is not taken into
account in computing actual loss.” TEX. CIV. PRAC. & REM. CODE § s134A.004(a).
Because the jury found in Question 15 that Kassab was part of a conspiracy with Favre,
Nicholson, and Montague with respect to the conduct at issue in Question 2, Kassab is jointly and
severally liable for the damages the jury found in response to Question 7. Thus, the amount of
damages that the jury found in Question 7, with respect to the conduct at issue in Question 2, does
not need to be adjusted by the percentages of responsibility the jury found in Question 4.
The amounts the jury found in its answers to Question Nos. 7(1)(a) through 7(1)(f) (totaling
$1,768,040); Question No. 7(2) (amoeunting to $250,000); and Question No. 7(3) (amounting to
$200,000) are recoverable underf TUTSA as Pohl’s actual losses and for unjust enrichment not
accounted for in calculating yPohl’s actual losses. The sum of these amounts, less the Settlement
Credit,4 is $1,453,040.C Accordingly, Pohl is entitled to recover actual damages of $1,453,040.
a III. AWARD OF ATTORNEYS’ FEES
The juryf verdict determined that Pohl is entitled to recover $1,232,013 in reasonable and
necessary attorneys’ fees for the prosecution of this matter through judgment. In a theft of trade
secrets case, recovery of attorneys’ fees is statutorily authorized if a “willful and malicious
misappropriation exists.” TEX. CIV. PRAC. & REM. CODE § 134A.005(3). In response to Question
4 Prior to trial Pohl settled with certain former defendants to this lawsuit for payments to Pohl that total $765,000 in
the aggregate (the “Settlement Credit”).
8, the jury found the existence of a willful and malicious misappropriation, which permits the
Court to award Pohl the reasonable and necessary attorneys’ fees the jury found in response to
Question 9. Accordingly, Pohl is entitled to recover all the reasonable and necessary attorneys’
fees that the jury awarded. Pohl is also entitled to the conditional award of appekllate attorneys’
fees that the jury found in response to Question 9. l
IV. AWARD OF COURT COSTS c
On the issue of the award of court costs: Texas Rule of Civil Psrocedure 131 provides “The
successful party to a suit shall recover of his adversary all costs incurred therein, except where
otherwise provided.” Texas Rule of Civil Procedure 303 further provides “When a counterclaim
is pleaded, the party in whose favor final judgment is rendered shall also recover the costs.”
Here, Pohl prevailed on its claims against Kassab. Kassab did not prevail on any of its
counterclaims or affirmative defenses. Consistent with the Court’s orders and the jury verdict,
Pohl moves the Court to enter an order that Kassab pay all court costs as taxed by the clerk
following the parties’ submissions ofe court costs to the clerk.
V. fAWARD OF PREJUDGMENT INTEREST
Section 304.001 of tyhe Texas Finance Code states that “prejudgment interest accrues on
the amount of a judgment” starting no later than “the date the suit is filed and ending on the day
preceding the date jaudgment is rendered.” TEX. FIN. CODE § 304.104. “The prejudgment interest
rate is equal to tfhe postjudgment interest rate applicable at the time of judgment.” Id. § 304.103.
Pursuant to Texas Finance Code § 304.003(c)(1), the postjudgment interest rate is 8.50% a year,
because the prime rate as published by the Federal Reserve is 8.50%.5 Thus, the prejudgment
interest rate is 8.50% a year.
Pohl filed this lawsuit on August 28, 2018. See Pohl’s Original Petition, filed Aug. 28,
2018. Thus, prejudgment interest of 8.50% a year accumulated on the amount of kthe judgment in
Pohl’s favor from August 28, 2018, through the day preceding the datel this Court enters
judgment—at least September 18, 2023. See TEX. FIN. CODE § 304.104. c
There are 1,847 days where interest accrued between August s28, 2018, and September 18,
2023. Simple interest at an 8.50% annual rate is the equivalent osf daily interest at 0.0233%.6 Thus,
simple interest at an 8.50% annual rate (daily interest of 0.0233%) on $1,453,040, from August
28, 2018, through September 18, 2023, is equal to $624,986.34.7 For each day after September
19, 2023, until the Court signs the judgment, Pohl is entitled to $338.38 in additional prejudgment
interest.8 In the event that the Court does nota sign the attached Final Judgment on the date of the
hearing, Pohl respectfully requests that Court provide notice of the date it intends to render
judgment so that Pohl can provide ane updated calculation for use in the Final Judgment.
VI. AfWARD OF POSTJUDGMENT INTEREST
Section 304.001 of tyhe Texas Finance Code states a “money judgment of a court in this
state must specify thCe postjudgment interest rate applicable to that judgment.” Because
postjudgment intereast is mandated by statute, it is recoverable on any state-court money judgment.
Postjudgment infterest is compensation for the use or detention of money, computed from the date
of the sigUning of the judgment until the state of its satisfaction. Phillips v. Branlett, 407 S.W.3d
5 Pohl requests the Court take judicial notice that the prime rate was 8.50% on September 5, 2023. See Selected
Interest Rates (Daily), Board of Governors of the Federal Reserve System,
https://www.federalreserve.gov/releases/h15/ (last accessed Sept. 5, 2023).
6 Calculated as follows: 8.50% / 365 = 0.0233%.
7 Calculated as follows: $1,453,040 * (0.0233% * 1,847) = $624,986.34.
8 Calculated as follows: $1,453,040 * (0.0233% * 1) = $338.38.
229, 238 (Tex. 2013). As noted above, pursuant to Texas Finance Code § 304.003(c)(1), the
postjudgment interest rate is 8.50% a year, because the prime rate as published by the Federal
Reserve is 8.50%.
VII. CONCLUSION k
WHEREFORE, premises considered, Pohl requests that the Court entelr a Final Judgment
in the form attached hereto as Exhibit B, and for such other and further rcelief at law or in equity,
to which Pohl may be entitled. s
Dated: September 5, 2023 Respectfully submitted,
REYNOLBDS FRIZZELL LLP
By: /s/ Jean C. Frizzell
lJean C. Frizzell
a State Bar No. 07484650
M1100 Louisiana St., Suite 3500
Houston, Texas 77002
oTel. 713.485.7200
e Fax 713.485.7250
jfrizzell@reynoldsfrizzell.com
f Attorney for Plaintiffs Michael Pohl
and Law Office of Michael A. Pohl, PLLC
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this document was served on all counsel of
record pursuant to the Texas Rules of Civil Procedure on this 5th day of September 2023.
/s/ Jean C. Frizzell k
Jean C. Frizzell e
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.
Monica Orand on behalf of Jean Frizzell
Bar No. 7484650
morand@reynoldsfrizzell.com r
Envelope ID: 79235207
Filing Code Description: Motion (No Fee)
Filing Description: Pohl's Motion for Entry of Final Judgment t
Status as of 9/6/2023 7:46 AM CST i
Case Contacts D
Name BarNumber Email e TimestampSubmitted Status
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 9/5/2023 6:40:58 PM SENT
Andrew Johnson ajohnson@Bthompsoncoe.com 9/5/2023 6:40:58 PM SENT
Benjamin Ritz britz@thnompsoncoe.com 9/5/2023 6:40:58 PM SENT
Murray JFogler mfoglielr@foglerbrar.com 9/5/2023 6:40:58 PM SENT
Murray Fogler mfogler@fbfog.com 9/5/2023 6:40:58 PM SENT
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 9/5/2023 6:40:58 PM SENT
Todd Taylor ttaylor@jandflaw.com 9/5/2023 6:40:58 PM SENT
Dale Jefferson 10607900 jefferson@mdjwlaw.com 9/5/2023 6:40:58 PM SENT
Raul Herman Suazo 2O4003021 suazo@mdjwlaw.com 9/5/2023 6:40:58 PM SENT
Harris Wells y hwells@reynoldsfrizzell.com 9/5/2023 6:40:58 PM SENT
Todd Taylor o ttaylor@jandflaw.com 9/5/2023 6:40:58 PM SENT
Scott M.Favre scott@favrepa.com 9/5/2023 6:40:58 PM SENT
Lawyer Wade lawyerwade@hotmail.com 9/5/2023 6:40:58 PM SENT
Chris C.Pappas f i cpappas@krcl.com 9/5/2023 6:40:58 PM SENT
Non-Party Witness Billy Shepherd bshepherd@spcounsel.com 9/5/2023 6:40:58 PM SENT
Non-Party Dona Pohl DonaLyann@yahoo.com 9/5/2023 6:40:58 PM SENT
Non-Party Edgar Jaimes edgarsroom@gmail.com 9/5/2023 6:40:58 PM SENT
Andrea Mendez andrea@kassab.law 9/5/2023 6:40:58 PM SENT
Lance Kassab lance@kassab.law 9/5/2023 6:40:58 PM SENT
David Kassab david@kassab.law 9/5/2023 6:40:58 PM SENT
Nicholas Pierce nicholas@kassab.law 9/5/2023 6:40:58 PM SENT
Lance Kassab eserve@kassab.law 9/5/2023 6:40:58 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.
Monica Orand on behalf of Jean Frizzell
Bar No. 7484650
morand@reynoldsfrizzell.com r
Envelope ID: 79235207
Filing Code Description: Motion (No Fee)
Filing Description: Pohl's Motion for Entry of Final Judgment t
Status as of 9/6/2023 7:46 AM CST i
Case Contacts D
Kevin Graham Cain 24012371 cain@mdjwlaw.com 9/5/2023 6:40:58 PM SENT
L Kassab lance@kassab.law 9/5/2023 6:40:58 PM SENT
Murray J. Fogler 7207300 mfogler@foBglerbrar.com 9/5/2023 6:40:58 PM SENT
Kelly Skelton receptionn@kassab.law 9/5/2023 6:40:58 PM SENT
Murray J. Fogler 7207300 mfoglielr@foglerbrar.com 9/5/2023 6:40:58 PM SENT
Thallia Malespin tmalespin@reynoldsfrizzell.com 9/5/2023 6:40:58 PM SENT
Misty Davis mdavis@reynoldsfrizzell.com 9/5/2023 6:40:58 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 9/5/2023 6:40:58 PM SENT
D Kassab david@kassab.law 9/5/2023 6:40:58 PM SENT
Harris Wells O hwells@reynoldsfrizzell.com 9/5/2023 6:40:58 PM SENT
Harris Wells y hwells@reynoldsfrizzell.com 9/5/2023 6:40:58 PM SENT"