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"
65,2024-01-19,MJNOV,Kassab,Mtn for JNOV and Disregard Jury Findings,"Kassab Defendants' Motion for Judgment Notwithstanding the Verdict and to Disregard Jury Findings, asserting 10 grounds for JNOV (no trade secret, no misappropriation evidence, limitations, unlawful acts doctrine, privilege to disclose, grievance immunity, judicial proceedings privilege, attorney immunity, unrecoverable damages, no causation), plus arguments that conspiracy is preempted by TUTSA and exemplary damages are improper due to non-unanimous Q17 finding","Post-judgment motion filed January 19, 2024, 28 days after entry of the Final Judgment on December 22, 2023. Kassab seeks JNOV on all claims or alternatively on exemplary damages and conspiracy claim. Filed simultaneously with Motion for New Trial.",POST-1,N/A,Phase 5,2024-01-19_MJNOV_Kassab-Mtn-for-JNOV-and-Disregard-Jury-Findings_FILED.pdf,"Judgment notwithstanding the verdict in favor of Kassab on all claims (take-nothing judgment), or alternatively: (1) JNOV on exemplary damages due to non-unanimous Q17 finding; (2) JNOV on conspiracy claim as preempted by TUTSA, eliminating joint and several liability; (3) disregard of jury findings","1/19/2024 3:31 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 83597613
By: Rhonda Momon
Filed: 1/19/2024 3:31 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et al. § IN THE DISTRICT COURT
V. § OF HARRIS COUNTY, TEXAS
SCOTT FAVRE, et al. § 281st JUDICIALk DISTRICT
THE KASSAB DEFENDANTS’ MOTION FOR JUDGMCENT NOT
WITHSTANDING THE VERDICT AND TO DISREGARD JURY FINDINGS
Defendants, Lance Christopher Kassab and Lance Chtristopher Kassab, P.C.
d/b/a The Kassab Law Firm (“Kassab”), files this Motion for Judgment
Notwithstanding the Verdict and to Disregard Jurey Findings and would show as
follows. u
SUMMARY
Pohl’s claims against Kassab are abarred as a matter of law. Therefor the Court
should disregard the findings of the jury and enter a judgment notwithstanding the
verdict in favor of Kassab for aney one of the following reasons:
1. Pohl’s claims are ba
rrfed as a matter of law because the information at
issue is not a trade secret:
• not Pohl’s trade secret because he does not own the information at
issue; l
• not Piohl’s (or anyone’s) trade secret because the information at issue
dooes not have any independent economic value from not being
generally known;
• not Pohl’s (or anyone’s) trade secret because he made no reasonable
measures to keep the subject information secret.
2. Pohl’s claims fail as a matter of law because there is no evidence that
Kassab engaged in regular or willful misappropriation; specifically,
there is no evidence that Kassab knew the information was Pohl’s trade
secret or had been acquired by improper means. The jury’s finding that
those associated with Precision, did not misappropriate anything
precludes liability against Kassab. k
3. Pohl’s claims are barred by limitations because they accruedC, if at all, in
the summer of 2014 when Precision engaged in the first acts of alleged
misappropriation, or at the latest in the spring ofi 2015, when both
Precision and Favre engaged in additional acts of alleged
misappropriation.
4. Pohl’s claims are barred by the unlawful acts doctrine because Pohl’s
acts are inexorably intertwined withl his crimes.
5. Pohl’s claims are barred becauMse Kassab had the privilege to use the
client-related information to disclose to those clients1 that Pohl had
committed unlawful actiivities.
6. Pohl’s claims are barred as a matter of law to the extent they are
predicated on oKassab’s filing of a grievance against Pohl for which
Kassab has labsolute and unqualified immunity.
7. Pohl’s cilaims are barred by the judicial proceedings privilege because
they arise out of communications that Kassab made to prospective
clients (solicitation letters), and to actual judicial proceedings (the
barratry litigation and grievance process).
1 We will use “clients” to refer to actual, potential or rejected clients.
8. Pohl’s claims are barred by attorney immunity because an attorney
cannot recover against another attorney for conduct the second attorney
engaged in as part of the discharge of his duties as a lawyer representing
clients. k
9. Pohl’s claims fail because his purported damages are unrecCoverable as
a matter of law, or because Pohl presented no evidence to support any
actual losses. i
10. Pohl’s claims fail for lack of causation because Pohl’s barratry was the
sole cause of his damages;, Kassab conduct did not cause damages to
Pohl.
Even if the Court does enter judgment in flavor of Kassab on the preceding grounds,
it should at least enter judgment notMwithstanding the verdict in favor of Kassab on
exemplary damages because predicate findings for exemplary damages were not
answered by the jury unanimiously and on Pohl’s conspiracy claim because it is
preempted by TUTSA.2
o ARGUMENT
A trial courtl may disregard a jury's findings and grant a motion for judgment
notwithstandinig the verdict (JNOV) when a directed verdict would have been proper.
See TEX. R. CIV. P. 301; Prudential Ins. Co. v. Fin. Review Servs., Inc., 29 S.W.3d 74,
77 (Tex. 2000). “A JNOV should be granted when the evidence is conclusive and one
party is entitled to recover as a matter of law or when a legal principle precludes
2 Texas Uniform Trade Secrets Act.
recovery.” B&W Supply, Inc. v. Beckman, 305 S.W.3d 10, 15 (Tex. App.—Houston [1st
Dist.] 2009, pet. denied); United Parcel Serv., Inc. v. Tasdemiroglu, 25 S.W.3d 914,
916 n.4 (Tex. App. – Houston [14th Dist.] 2000, pet. denied) (“A court should grant a
motion for judgment notwithstanding the verdict if a legal principle prekvents a party
from prevailing on its claim.”). For the reasons enumerated belowC, the Court should
enter judgment notwithstanding the verdict because Pohl’s claims against Kassab
fail as a matter of law. i
I. Pohl’s claims against Kassab are barred as a matter of law
because the information at issue eis not a trade secret
owned by Pohl.
“To bring a successful TUTSA claim, the claimant must first show that it owns
a trade secret in the information it sleeks to protect.” Title Source, Inc. v.
HouseCanary, Inc., 612 S.W.3d 517, 5M27 (Tex. App.—San Antonio 2020, pet. denied);
TEX. CIV. PRAC. & REM. CODE § 134A.002(3-a), (6) (requiring claimant to be a “owner”
of the trade secret informaition at issue). The information must also derive
independent economic value from not being generally known to, and not being readily
ascertainable througho proper means by, another person who can obtain economic
value from the d
islclosure or use of the information. TEX. CIV. PRAC. & REM. CODE §
134A.002(6). Aind it is axiomatic that “the subject matter of a trade secret must be
secret.” J.C. Kinley Co. v. Haynie Wire Line Serv., Inc., 705 S.W.2d 193, 198 (Tex.
App.—Houston [1st Dist.] 1985, writ ref'd n.r.e.); TEX. CIV. PRAC. & REM. CODE §
134A.002(6) (defining “trade secret” to mean certain types of information in which
the owner “has taken reasonable measures under the circumstances to keep the
information secret”). The information at issue here is not Pohl’s trade secret as a
matter of law because Pohl is not the owner of the information, the information does
not derive independent economic value to Pohl from not being generally known, and
the information is not secret, nor did Pohl take reasonable measurkes under the
circumstances to keep the information secret. C
Pohl is not the owner of the attorney-client contracts between him and his
clients. Rather, attorney-client contracts are part of the cliient’s file which is owned
by the client, not the lawyer. See In re George, 28 S.W.3d 511, 516 (Tex. 2000) (“The
attorney is the agent of the client, and the work product generated by the attorney in
representing the client belongs to the client.”) (emphasis added); In re McCann,
422 S.W.3d 701, 704-705 (Tex. Crim. Alpp. 2013) (“[T]he Texas Supreme Court
recognized explicitly that an attorneyM is an agent of his client and implicitly that a
client owns the contents of his or her file.”). The fact that Pohl can assert a lien
over the client file does not miean he is the rightful, legal, or equitable owner of the
contracts. See In re McCann, 422 S.W.3d 701, 706 (Tex. Crim. App. 2013) (noting that
“a lien, by its definitioon, is a transitory interest in someone else's property and,
therefore, the attolrney asserting such a lien never owns the property at issue, the
client owns thei file by implication (if the attorney does not)”) (emphasis added). Pohl,
as an agent, cannot claim trade secret protection in property belonging to his clients,
the principals. See RMS Software Dev. v. LCS, Inc., No. 01-96-00824-CV, 1998 Tex.
App. LEXIS 1053, at *11 (Tex. App.—Houston [1st Dist.] Feb. 19, 1998, no pet.)
(unpublished) (“RMS is not the owner of the trade secret involved in this lawsuit,
thus it has no standing to sue for misappropriation of that secret.”).
Moreover, the information is not a trade secret because Pohl offered no
evidence at trial that the attorney-client contracts or list of actual, kpotential, or
rejected clients “derives independent economic value, actual or pCotential, from not
being generally known to, and not being readily ascertainable through proper means
by, another person who can obtain economic value from thie disclosure or use of the
information.” TEX. CIV. PRAC. & REM. CODE § 134A.0
02(6)(B). To meet his burden,
Pohl was required to prove that the contracts or compilation of client contact
information provided him with a “competitive advantage.” Fmc Techs. v. Murphy, No.
01-21-00455-CV, 2023 Tex. App. LEXIS 59l84, at *62 (Tex. App.—Houston [1st Dist.]
Aug. 10, 2023, pet. filed) (mem. op.). PMohl failed to plead and present any evidence to
demonstrate how the information at issue provided him with a competitive
advantage.3 i
The information at issue has no demonstrated independent value to Pohl
because, regardless ofo its disclosure, Pohl can still use the client-related information.
Pohl’s only intereslt was to keep the identities of individuals whom Pohl unlawfully
3 Nor could nhe because as a matter of law, Pohl cannot have a “competitive advantage” by using the
client-relaUted information to the exclusion of the potential, actual and rejected clients. See ERI
Consulting Eng'rs, Inc. v. Swinnea, 318 S.W.3d 867, 872 (Tex. 2010) (“if the fiduciary … acquires any
interest adverse to his principal, without a full disclosure, it is a betrayal of his trust and a breach of
confidence, and he must account to his principal for all he has received.”); TEX. R. PROF’L COND.
1.05(b)(4) (lawyer may not use confidential information of a former client to the client’s disadvantage
or use “privileged information of a client for the advantage of the lawyer or of a third person, unless
the client consents after consultation.”); id. at 1.08(f) (generally prohibiting a lawyer from “acquir[ing]
a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for
a client”).
solicited from being disclosed to lawyers like Kassab who could inform those
individuals about Pohl’s unlawful solicitation. That interest is not only against public
policy that favors disclosure of criminal conduct,4 but it is insufficient to qualify as
independent economic value under TUTSA. “Without more, … a comkbination [of
information] does not qualify as a trade secret; it must also provCide ‘a competitive
advantage.’” Fmc Techs., 2023 Tex. App. LEXIS 5984, at *62. Pohl presented no
evidence at trial that the information at issue provided ihim with a competitive
advantage.
Moreover, there is no evidence that Pohl took “reasonable measures under the
circumstances to keep the information secret.” TEX. CIV. PRAC. & REM. CODE §
134A.002(6). The contracts that Pohl had wlith his actual, potential or rejected clients
are not secret; they are not even conMfidential or privileged as a matter of law. See
Landry v. Burge, No. 05-99-01217-CV, 2000 Tex. App. LEXIS 6606, at *18 (Tex.
App.—Dallas Oct. 2, 2000, no piet.) (mem. op.) (recognizing “the general rule that
a client's identity is not privileged” or considered “confidential
information” undero the disciplinary rules); Borden, Inc. v. Valdez, 773 S.W.2d
718, 720-21 (Tex. lApp.—Corpus Christi 1989, no writ) (noting that “the terms and
4 “[P]ublic pnolicy strongly favors exposure of crime.” Wal-Mart Stores, Inc. v. Medina, 814 S.W.2d 71,
73 (Tex. AUpp.—Corpus Christi 1991, writ denied). Kassab had an ethical obligation to notify the State
Bar and the affected individuals of Pohl’s misconduct under the rules of ethics and as an officer of the
court. See Tex. Disc. R. Prof’l Cond. 8.03(a) (“a lawyer having knowledge that another lawyer has
committed a violation of applicable rules of professional conduct that raises a substantial question as
to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the
appropriate disciplinary authority.”); id. at Cmt. 1 (“Reporting a violation is especially important
where the victim is unlikely to discover the offense.”). Kassab was doing what Pohl should have done,
disclosing misconduct to the individuals. See Cluck v. Mecom, 401 S.W.3d 110, 114 (Tex. App.—
Houston [14th Dist.] 2011, pet. denied) (“A fiduciary has an affirmative duty to make a full and
accurate confession of all his fiduciary activities, transactions, profits, and mistakes.”).
conditions of an attorney's employment and the purpose for which an attorney has
been engaged” are considered “nonconfidential matters”); Jim Walter Homes, Inc. v.
Foster, 593 S.W.2d 749, 752 (Tex. Civ. App.—Eastland 1979, no writ) (“The general
rule appears to be that the fee arrangement is not privileged.”); see aklso Jordan v.
Sony BMG Music Entm't, Inc., No. H-06-1673, 2008 U.S. Dist. LECXIS 47415, at *5
(S.D. Tex. 2008) (recognizing that a attorney-client contract “is not privileged.”);
Early, Ludwick & Sweeney, LLC v. Steele, 1998 Conn. Siuper. LEXIS 2256, at *6
(Super. Ct. 1998) (concluding list of client contact information was not a trade secret
owned by a law firm because the clients’ identities were “known to the defendants in
their respective lawsuits.”).
But even if the contracts or lists arel confidential, “confidential information is
not necessarily a trade secret.” ReynMolds v. Sanchez Oil & Gas Corp., No. 01-18-
00940-CV, 2023 Tex. App. LEXIS 8903, at *49 (Tex. App.—Houston [1st Dist.] Nov.
30, 2023, no pet. h.) (mem. op.i on rehearing); Early, Ludwick & Sweeney, LLC, 1998
Conn. Super. LEXIS 2256, at *7 (“The efforts made by [the law firm] to maintain
secrecy of the alleged otrade secrets appear to be no more than the usual precautions
taken by a law firlm to ensure clients' files remain confidential. Not all confidential
information mieets the definition of trade secret.”). Pohl alleged that he “made clear
to Precision and its representatives the confidential and nature of the above listed
information” and that “Precision and its representatives expressed their
understanding of the confidential and proprietary nature of the information and that
the information belonged to Pohl.”5 Pohl did not plead that he told Precision that the
information was his trade secrets.
Moreover, Pohl presented no evidence that the information was not generally
known, or was not readily ascertainable through proper means. The idekntity of Pohl’s
clients was even known to third parties, like the defendants in thCe underlying cases
and their lawyers. And the uncontroverted testimony at trial established that the list
of clients was created by Precision, not by Pohl, and was voluintarily produced to Scott
Favre, Tina Nicholson and several third parties6 in August 2016 as part of discovery
during the Mississippi litigation. Moreover, this information was produced to others
in discovery before the information was provided to Kassab – without a protective
order, confidentiality stamp, confidentialitly agreement, or anything else prohibiting
its disclosure. Furthermore, Pohl nevMer filed an injunction or any other document in
the Mississippi litigation to prevent disclosure of what he claims are his trade secrets.
Finally, the “Master List” of Piohl’s alleged clients has been available on PACER for
the last six years and is still there today.
Accordingly, anoy evidence that Pohl took reasonable measures under the
circumstances to kleep the information secret is “so weak as to do no more than create
a mere surmisie, [and is therefore] no more than a scintilla and, thus, no evidence.”
Beckman, 305 S.W.3d at 16; Sci. Mach. & Welding, Inc. v. Rose, No. 03-20-00564-CV,
5 Plaintiffs’ First Amended Petition, ¶ 25.
6 Those parties included, among others, Nathan Farmer, Charles Mikhail, Carl Hagwood, James
Welch, Scott Walker, Steve Seymour, Kirk Ladner, Ciyndi Rusnak, Marian Mchehee, Yousef
Nasrallah, Trevor Brock and Robin Gross.
2022 Tex. App. LEXIS 1884, at *6 (Tex. App.—Austin Mar. 23, 2022, no pet. h.) (mem.
op.) (trade secret status was waived because, “despite having the opportunity under
a protective order to designate the drawings as ‘confidential’ during this litigation,
[the party] failed to do so and produced them without such designationk.”); Baxter &
Assocs., L.L.C. v. D&D Elevators, Inc., No. 05-16-00330-CV, 2017C Tex. App. LEXIS
1352, at *28 (Tex. App.—Dallas Feb. 15, 2017, no pet.) (mem. op.) (information in
question was not the subject of any efforts to maintain its secirecy when “the ‘customer
lists’ in question are not labeled as confidential or proprietary”); Stemtech Int'l Inc. v.
Drapeau, No. 1:16-cv-918-RP, 2016 U.S. Dist. LEXIS 178591, at *35 (W.D. Tex. 2016)
(“public availability of [the information] makes them ineligible for trade secret
protection … when disclosure is made [andl] … the persons to whom the information
is disclosed are under no obligation toM keep it confidential.”).
Because Pohl is not the owner of a “trade secret” as a matter of law, the Court
should enter a JNOV in favori of Kassab. See Glob. Water Grp., Inc. v. Atchley, 244
S.W.3d 924, 931 (Tex. App.—Dallas 2008, pet. denied) (trial court did not err in
granting judgment onotwithstanding the verdict on a corporation's claims of
misappropriation olf trade secrets given that a trade secret was not shown).
II. Piohl’s claims fail as a matter of law because there is no
oevidence Kassab engaged in misappropriation, either
regular or willful.
Pohl alleged that Favre and Precision illegally misappropriated trade secrets
from him, and that Kassab subsequently committed indirect misappropriation by
10
acquiring illegally misappropriated trade secrets from Favre and Precision.7
Although Pohl originally sued Precision, he non-suited his claims against Precision.
Nevertheless, Precision was designated as a responsible third party, and defined in
the charge to include Precision’s former owners (Scott Walker, Steve kSeymour and
Kirk Ladner) prior to May 12, 2015, and Favre after May 12, 201C5.8 When the jury
was asked whether Precision misappropriated trade secrets from Pohl, it found that
Precision did not.9 In consistent fashion, the jury answereid “0” in Question 4 when
asked to assign what percentage of the “fault that caused the injury” was attributable
to Precision.10 These findings demonstrate that there is no evidence that Kassab
could have engaged in regular or willful misappropriation because he obtained the
information legally from parties who did nlot misappropriate it.
To be liable for misappropriatiMon based upon the acquisition of a trade secret,
Kassab must “know[] or ha[ve] reason to know that the trade secret was acquired by
improper means” or “derived firom or through a person who used improper means to
7 Plaintiff’s First Amendedp Petition, at ¶ 21 (“Favre and Precision illegally misappropriated
Pohl’s proprietary ando confidential information and property …which included information
about and/or communicCations with as many as 10,000 or more of Pohl’s clients/prospective clients.
Favre and Precision stole physical copies of certain of the information, stole Pohl’s computers,
and misappropriateda electronic data to which they had access through Precision’s work for Pohl.”)
(emphasis addedc); iid. at ¶ 40 (“Favre, Precision, and Nicholson willfully and maliciously
misappropriated iPohl’s trade secrets by acquiring them through improper means—specifically, by
theft.”); id. at o¶ 41 (“Favre, Precision, and Nicholson willfully and maliciously misappropriated Pohl’s
trade secretns by disclosing them via sale to Kassab and Montague (who purchased the trade
secret inUformation knowing that it had been stolen) without the express or complied consent of
Pohl.”) (emphasis added); id. at ¶ 42 (“All Defendants willfully and maliciously misappropriated Pohl’s
trade secrets by using them without the express or implied consent of Pohl.”).
8 See Verdict, at Definitions.
9 Verdict, Question 2(a)(3) and 2(b)(3).
10 Verdict, Question 4(3).
11
acquire the trade secret.” TEX. CIV. PRAC. & REM. CODE §§ 134A.002(3)(A), (B)(ii)(a).
But here, the jury determined that Precision did not engage in any
misappropriation.11 And, if Precision and its former owners did not engage in
misappropriation by wrongfully acquiring the information and thenk selling it to
Favre, then Favre could not have acquired the information by imCproper means. In
other words, the jury’s finding that Precision did not misappropriate anything —
meaning it either owed no duty to Pohl or breached no dutyi to Pohl when it provided
Pohl's alleged information to Favre and Kassab — precludes liability against Kassab
for indirect misappropriation.
Even if liability against Kassab is not precluded by the jury’s finding of no
liability on Precision, there is no evidence thlat Kassab knew the information had been
acquired by improper means. See TEX M. CIV. PRAC. & REM. CODE § 134A.002(3)(A). The
term “improper means” “includes bribery, misrepresentation, breach or inducement
of a breach of a duty to maintiain secrecy, to limit use, or to prohibit discovery of a
trade secret, or espionage through electronic or other means.” Id. at 134A.002(2). The
testimony was that Foavre purchased Precision, and that the principals of Precision
certified in purchalse documents that they owned the information at issue. Favre then
provided that iinformation to Kassab, after certifying to Kassab that the information
belonged to Precision and not to Pohl. Thus, there was no evidence that Kassab knew
or had reason to know that the information was a trade secret owned by Pohl as
opposed to information owned by Precision. Nor was there evidence to establish that
11 Verdict, Question 2(a)(3) and 2(b)(3).
12
the information was obtained by Favre or Precision through improper means. Nor
was there any evidence to establish that the contracts or any other information in a
client file is owned by anyone other than the client, if not owned by Precision.
III. Pohl’s claims are barred as a matter of law by limitkations
because they accrued, if at all, in the summer of 2e014 and
this suit was filed in 2018, more than three yearCs later.
“A person must bring suit for misappropriation of trade secrets not later than
three years after the misappropriation is discovered or by tihe exercise of reasonable
diligence should have been discovered.” TEX. CIV. PRAsC. & REM. CODE 16.010(a). “A
misappropriation of trade secrets that continues over time is a single cause of
action and the limitations period described by Subsection (a) begins running
without regard to whether the misaplpropriation is a single or continuing
act.” Id. at § 16.010(b) (emphasis addeMd). In other words, TUTSA “explicitly precludes
treating trade secret misappropriation as a continuing tort.” Gen. Universal Sys. v.
HAL Inc., 500 F.3d 444, 451 (5ith Cir. 2007).
“A cause of action for trade-secret misappropriation accrues when the trade
secret is actually usedo.” Sw. Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 721
(Tex. 2016). Pohl lalleged that Precision “stole physical copies of certain of the
information, sitole Pohl’s computers, and misappropriated electronic data to which
they had access through Precision’s work for Pohl” and then “secretly sold Pohl’s
stolen confidential information and property to Kassab and Montague.”12 The
evidence established that the alleged theft by Precision and its former owners,
12 Plaintiffs’ First Amended Petition, at ¶ 21.
13
Walker, Ladner and Seymore, occurred in June 2014 and Pohl knew that the files
and materials he claims are his trade secrets had been misappropriated on that date.
Precision and its former owners used the client-related information in the Mississippi
litigation to file claims against Pohl. See id. (“Use of the trade skecret means
commercial use by which the offending party seeks to profit froCm the use of the
secret.”). That alleged act of misappropriation, which occurred in June 2014, is when
the cause of action accrued for purposes of the statute of l
imiitations. TEX. CIV. PRAC.
& REM. CODE 16.010(b); Sw. Energy, 491 S.W.3d at 72
1.
Even if the cause of action had not accrued in 2014, it unquestionably accrued
when Precision’s former owners profited from the alleged trade secret information by
selling Precision and its files, including thel alleged trade secret information, to Favre
in May 2015. See Sw. Energy, 491 MS.W.3d at 722 (defining “use” to mean “any
exploitation of the trade secret that is likely to result in injury to the trade secret
owner or enrichment to the [nion-trade secret owner]”) (emphasis added). Thus, Pohl
was required to file his cla
ims against Kassab before May 2018, at the latest. See TEX.
CIV. PRAC. & REM. COoDE 16.010(a).
Although Plohl consulted with an attorney about pursuing claims against
Kassab in Junie 2017,13 Pohl did not file this lawsuit until August 2018, alleging
Kassab, Favre and Precision “engaged in a scheme pursuant to which they illegally
obtained, maintained, and used trade secrets and other confidential information and
13 See Plaintiffs’ Trial Exhibit 124 at November 13, 2017 Invoice.
14
property belonging to Pohl.”14 This was more than three years after Precision’s
owners sold Pohl’s purported trade secrets to Favre in May 2015.
Pohl alleges that his claim against Kassab did not accrue until November 2016,
when Favre entered into an expert retainer agreement with Kassabk which Pohl
characterizes as an agreement to purchase the purported tradeC secrets. But the
transfer or use of already-misappropriated trade secrets by a purported co-
conspirator does not re-start the limitations clock. See TEDXi. CIV. PRAC. & REM. CODE
16.010(a); Agar Corp., Inc. v. Electro Circuits Int'l, LLC, 580 S.W.3d 136, 145 (Tex.
2019) (rejecting the “last-overt-act accrual rule” and concluding that conspiracy claim
for misappropriation of trade secrets accrues against all co-conspirators “when the
underlying tort accrues.”) (citing with applroval Harang v. Aetna Life Ins. Co., 400
S.W.2d 810, 813 (Tex. Civ. App.—MHouston 1966, writ ref'd n.r.e.) (concluding
limitations runs from when the injury occurs and therefore conspiracy claim against
the late-added co-conspiratoris was time-barred)). In other words, “[a] conspiracy
claim based on an earlier underlying tort does not re-accrue when the co-conspirators
agree to commit a secoond tort or make another overt act.” Agar Corp., 580 S.W.3d at
145. Accordingly, Plohl’s claims against Kassab are barred by limitations. See id.
IV. Piohl’s claims are barred by the unlawful acts doctrine
obecause Pohl’s acts are inexorably intertwined with his
crimes.
The unlawful acts doctrine bars a plaintiff from recovery if, at the time of
injury, he was engaged in an unlawful act that was inextricably intertwined with the
14 Plaintiffs’ Original Petition, ¶ 2
15
claim and the alleged damages would not have occurred but for the illegal act. Dugger
v. Arredondo, 408 S.W.3d 825, 827-28 (Tex. 2013). Although Dugger concluded that
the unlawful acts doctrine has been preempted by the statutory proportionate
responsibility scheme in “personal injury and wrongful death cases,” ikd. at 833, the
doctrine remains viable in all other types of cases, including claimCs against lawyers.
For instance, “a plaintiff [is] precluded from recovering damages in the legal
malpractice context due to the plaintiff's underlying criminail conduct.” Id. (collecting
cases). In those cases, “a client's criminal conduct, as a matter of law, was the sole
proximate or producing cause of the client's conviction, and . . . . the client could not
bring a legal malpractice claim unless she had been exonerated from the criminal
conviction.” Id. (citing Peeler v. Hughes &l Luce, 909 S.W.2d 494 (Tex. 1995)). The
Court reasoned, “[b]ecause the clientM's conduct, and not the attorney's, is the sole
cause of any injury resulting from conviction, the plaintiff cannot satisfy the
causation element of a legal mialpractice claim absent exoneration.” Id.
The same reasoning applies here, where Pohl’s wrongful conduct is the sole
cause of his purportedo injuries. Question 3 asked whether “the wrongful conduct of
Pohl, if any, contrlibute to the injury, if any, found by the jury,” to which the jury
answered “yesi.” Because the jury concluded that Pohl’s wrongful conduct (illegal
barratry and unauthorized practice of law) “contributed to” Pohl’s injury (attorney’s
fees incurred defending the barratry litigation and grievances), Pohl cannot recover
anything from Kassab. See Dugger, 408 S.W.3d at 839 (“where it is shown that, at the
time of the injury, the plaintiff was engaged in the denounced or illegal act, the rule
16
is, if the illegal act contributed to the injury he can not recover”); Truyen Luong
v. McAllister, No. 01-17-00198-CV, 2018 WL 3651103, at *4 (Tex. App.—Houston [1st
Dist.] Aug. 2, 2018, pet. denied) (barring claims arising out of solicitation of BP clients
and unlawful fee-sharing arrangements); Denson v. Dallas Cnty. Credkit Union, 262
S.W.3d 846, 855 (Tex. App.—Dallas 2008, no pet.) (unlawful acCts doctrine barred
claims arising from illegal sale of automobiles); Sharpe v. Turley, 191 S.W.3d 362
(Tex. App.—Dallas 2006, pet. denied) (precluding plaintiiff from recovering from
attorney because plaintiff's conduct forming the basis of the underlying civil fraud
claim was unlawful); Farha v. Elam, 385 S.W.2d 692, 695 (Tex. Civ. App.—Fort
Worth 1964, writ ref’d n.r.e.) (denying recovery for claimant who practiced
architecture without a license and then suled his partner in the architectural firm).
Since the jury found that Pohl’s wrongMful conduct contributed to his injury, he cannot
recover.
V. Pohl’s claims arie barred because Kassab had the privilege
to use the pufrported trade secrets – the client-related
information – to disclose to those clients that Pohl had
committed unlawful activities.
The jury’s finding that Pohl engaged in wrongful conduct contributing to his
injury also suppiorts Kassab’s claims of privilege, which is found in the Texas Rules
of Evidenceo, the Defense of Trade Secrets Act, and the common-law.
The Texas rules of evidence provide that Kassab has a privilege to reveal even
trade secrets if “nondisclosure will tend to conceal fraud or otherwise work injustice.”
TEX. R. EVID. 507(a). Even if client-related information could be considered Pohl’s
trade secrets (and it cannot), the evidence established that Kassab used that
17
information to make disclosure to the clients, to the Texas courts through the
barratry litigation, and to the State Bar of Texas through the grievances, about Pohl’s
ongoing illegal barratry. Nondisclosure of Pohl’s illegal activity not only would have
worked an injustice to the clients, but also would have violated Kassab’ks professional
obligations to the public. See TEX. DISC. R. PROF’L COND. 8.03(a) C(“a lawyer having
knowledge that another lawyer has committed a violation of applicable rules of
professional conduct … shall inform the appropriate discipliinary authority.”).
Under the Defense of Trade Secrets Act, Kassab cannot be held civilly liable
under TUTSA for “the disclosure of a trade secret that is made (i) in confidence to a
Federal, State, or local government official, either directly or indirectly, or to an
attorney; and (ii) solely for the purpose of lreporting or investigating a suspected
violation of law; or is made in a comMplaint or other document filed in a lawsuit or
other proceeding, if such filing is made under seal.” 18 U.S.C. § 1833(b)(1)(A)-(B)
(emphasis added). i
Moreover, “trade secret law permits disclosures relevant to public health or
safety, commission ofo crime or tort, or other matters of substantial public concern.”
Bartnicki v. Vop a pler, 532 U.S. 514, 539 (2001); RESTATEMENT (THIRD) OF UNFAIR
COMPETITION
§i 40, cmt. c (1995) (“A privilege is likely to be recognized, for example,
in connection with the disclosure of information that is relevant to public health or
safety, or to the commission of a crime or tort, or to other matters of substantial public
concern.”); RESTATEMENT OF THE LAW, TORTS § 757, cmt. d (“A privilege to disclose
may also be given by the law, independently of the other's consent, in order to promote
18
some public interest.”); Alderson v. United States, 718 F. Supp. 2d 1186, 1200 (C.D.
Cal. 2010), aff'd, 686 F.3d 791 (9th Cir. 2012) (“[T]here simply cannot be any trade
secret about ongoing illegality.”); Sys. Operations, Inc. v. Sci. Games Dev. Corp., 425
F. Supp. 130, 136 (D.N.J. 1977) (“disclosure of trade secret informationk may itself be
privileged.”). C
Here, the evidence established that Kassab used the purported trade secret
information – the client’s identities and contact informiation – to report Pohl’s
misconduct to the State Bar of Texas and to inform those very individuals that Pohl
may have committed unlawful barratry. Kassab’s disclosure of the information to
Pohl’s former clients, the courts, and the State Bar falls within these privilege
doctrines. The jury’s finding that Pohl enlgaged in wrongful conduct demonstrates
that these doctrines should be appliedM to bar Pohl’s claims against Kassab.
VI. Pohl’s claims or damages are barred as a matter of law to
the extent they aere predicated on Kassab’s participation
in the attorneyi disciplinary system for which Kassab has
absolute and ufnqualified immunity.
Rule 17.09 of the Texas Rules of Disciplinary Procedure provides immunity to
persons filing grievance procedures: “No lawsuit may be instituted against any
Complainant or iwitness predicated upon the filing of a Grievance or participation in
the attorneoy disciplinary and disability system . . . . The immunity is absolute and
unqualified and extends to all actions at law or in equity.” TEX. R. DISC. P. 17.09
(emphasis added). Even “allegations of wrongdoing . . . in connection with [the]
prosecution of disciplinary actions” are absolutely immune, so long as they are
“predicated upon” participation in the attorney disciplinary system. Crampton v.
19
Farris, 596 S.W.3d 267, 274-75 (Tex. App.—Houston [1st Dist.] 2019, no pet.).
Pohl’s claims against Kassab are “predicated” upon Kassab’s filing of
grievances against Pohl or participation in the attorney disciplinary system. Pohl
alleged that Kassab used the attorney-client contracts and the list idenktifying Pohl’s
potential, actual and rejected clients to solicit them to file claiCms and grievance
“complaints” against Pohl.15 Pohl testified that Kassab used the purported trade
secret information to initiate grievances against Pohl, aind he asked the jury to
compensate him for the attorney’s fees he incurred defending against those
grievances.16 The jury found that the attorney’s fees incurred by Pohl in the grievance
proceedings were the “proximate cause” the alleged misappropriation.17 Because
Pohl’s lawsuit is “predicated” upon Kassab’ls participation in the attorney disciplinary
system, Kassab has “absolute and unqMualified” immunity that “extends to all actions
at law or in equity.” TEX. R. DISC. P. 17.09; Crampton, 596 S.W.3d at 274-75
(“immunity likewise extendsi to all actions.”). Thus, Kassab has absolute and
unqualified immunity.
VII. Pohl’s colaims are barred by the judicial proceedings
privilege because they arise out of communications that
Kasslab made to prospective clients (solicitation letters)
andi actual judicial proceedings (the barratry litigation
aind grievance process).
“The judicial-proceedings privilege is an absolute privilege that covers any
15 Plaintiffs’ First Amended Petition, at ¶¶ 29, 32.
16 Verdict, at Question 7(1)(e), (f).
17 Verdict, at Question 7(1)(e), (f).
20
statement made by the judge, jurors, counsel, parties or witnesses, and attaches to
all aspects of the proceedings, including statements made in open court, pre-trial
hearings, depositions, affidavits and any of the pleadings or other papers in the case.”
Landry's, Inc. v. Animal Legal Def. Fund, 631 S.W.3d 40, 46 (Tex. 20k21) (internal
quotations omitted). It attaches even to “communications preliminCary to a proposed
judicial proceeding” if “the communication has some relation to a proceeding that is
actually contemplated in good faith and under serious consiideration by the witness
or a possible party to the proceeding.” Id. at 48-49. “Even in the pre-suit context,
… the privilege protects communications that are themselves preparatory
to the lawsuit.” Id. (emphasis added). The privilege protects all communications
that are “necessary to set the judicial mlachinery in motion.” Id. at 50 (quoting
RESTATEMENT (SECOND) OF TORTS § 5M86 cmt. a) (emphasis added).
“Although most cases addressing the judicial communication privilege involve
claims of libel or slander, Texais courts have consistently applied the privilege
to claims arising out of communications made in the course of judicial
proceedings, regardoless of the label placed on the claim.” Laub v. Pesikoff, 979
S.W.2d 686, 690 (Tlex. App. – Houston [1st Dist.] 1998, pet. denied) (emphasis added).
Thus, the priviilege applies to any cause of action “when the essence of a claim is
damages that flow from communications made in the course of a judicial
proceeding.” Id. at 691 (emphasis added).
Here, Pohl’s alleged damages indisputably “flow from” communications that
Kassab made in the barratry litigation and grievance proceedings. Pohl sued Kassab
21
alleging he “solicited … clients/prospective clients to act as plaintiffs … to bring cases
against Pohl for alleged barratry and other claims.”18 Pohl testified to these
allegations, stating Kassab used the purported trade secret information to acquire
clients and file barratry proceedings against Pohl, which damaged his kreputation in
the community and “ruined him.”19 Pohl asked the jury to award hiCm “attorney’s fees,
expenses, and costs that Pohl has incurred in connection with the … lawsuits,
appeals, and grievances that Kassab filed,” and the jury didi.20
Because Pohl’s alleged damages “flow from” communications that Kassab
made in the barratry litigation and grievance proceedings, Pohl’s claims against
Kassab are barred regardless of their label. See Laub, 979 S.W.2d at 690 (holding
privilege applied to claims for “intentionall interference, civil conspiracy, intentional
infliction of emotional distress, negligMence, and constitutional violations”); Tex. Mut.
Ins. Co. v. Ray Ferguson Interests, Inc., No. 01-02-00807-CV, 2006 Tex. App. LEXIS
2001, at *27-28 (Tex. App.—Hoiuston [1st Dist.] Mar. 16, 2006, pet. denied) (mem. op.)
(privilege applied to statutory claim under Texas Insurance Code because “although
[plaintiff] did not pleoad defamation, its theory of damages was that its clients,
creditors, and bonlding companies abandoned it, in part, because of the [insurer's]
allegations andi assertions . . . made in the course of this judicial proceeding”).
18 Plaintiff’s First Amended Petition, at ¶ 29.
19 Pohl testified that after the barratry proceedings were filed, he was considered a “tar baby” and
nobody wanted to do business with him.
20 Verdict, at Question 7.
22
VIII. Pohl’s claims are barred by attorney immunity because an
attorney does not have a right of recovery against another
attorney arising from conduct the second attorney
engaged in as part of the discharge of his duties as a
lawyer.
Under the doctrine of attorney immunity, “an attorney does not hkave a right of
recovery, under any cause of action, against another attorney arCising from conduct
the second attorney engaged in as part of the discharge of his duties in representing
a party.” Bradt v. West, 892 S.W.2d 56, 72 (Tex. App.—Houiston [1st Dist.] 1992, writ
denied) (emphasis added). “[A]n attorney is immune from liability to nonclients for
conduct within the scope of his representation of his clients.” Youngkin v. Hines, 546
S.W.3d 675, 681 (Tex. 2018). The inquiry “focuses on the kind of conduct at issue
rather than the alleged wrongfulness of slaid conduct.” Id. “That is, a lawyer is no
more susceptible to liability for a giMven action merely because it is alleged to be
fraudulent or otherwise wrongful.” Id. “Merely labeling an attorney’s conduct
‘fraudulent’ does not and shoulid not remove it from the scope of client representation
or render it ‘foreign to the duties of an attorney.’” Id. at 483. Even “criminal conduct
is not categorically excoepted from the protections of attorney civil immunity when the
conduct alleged isl connected with representing a client in litigation.” Bethel v.
Quilling, Selanider, Lownds, Winslett & Moser, P.C., 595 S.W.3d 651, 657 (Tex. 2020);
Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 483 (Tex. 2015) (“an attorney’s conduct
may be wrongful but still fall within the scope of client representation”).
Kassab’s conduct that forms the basis of Pohl’s claims falls squarely within the
confines of attorney immunity, regardless of whether it is alleged to have violated the
23
TUTSA, because that statute does not expressly repudiate the defense. Taylor v.
Tolbert, 644 S.W.3d 637, 642 (Tex. 2022) (attorney immunity applied to statutory
claim because the statute did “not expressly, or by necessary implication, abrogate
the immunity defense”). Pohl sued Kassab because he allegedly used thke purportedly
“stolen and misappropriated confidential information … to contacCt and solicit Pohl’s
clients/prospective clients”21 in order to “bring cases against Pohl for alleged barratry
and other claims.”22 The acquisition of clients and filing of liawsuits are actions taken
“to facilitate the rendition of legal services” that fall within attorney immunity.
Youngkin, 546 S.W.3d at 682 (recognizing that “the complained-of actions included
filing lawsuits and pleadings” fell within the doctrine of attorney immunity); Clayton
v. Oldcastle Materials Tex., Inc., No. 09-18-l00063-CV, 2019 Tex. App. LEXIS 1112, at
*12, 15 (Tex. App.—Beaumont Feb. 1M4, 2019, no pet.) (mem. op.) (applying attorney
immunity to attorney “selling his legal services to the City as a potential client” and
subsequent conduct which “ocicurred in the course of his undertaking to represent”
those clients).
The fact that Koassab is alleged to have committed the misconduct before any
litigation is immalterial because “attorney immunity applies to claims based on
conduct outsidie the litigation context[.]” Haynes & Boone, LLP v. NFTD, LLC, 631
S.W.3d 65, 78-79, 81 (Tex. 2021); Cantey Hanger, 467 S.W.3d at 485 (concluding that
attorney was immune from conduct that occurred after litigation had ended). In other
21 Plaintiffs’ First Amended Petition, ¶ 26.
22 Plaintiffs’ First Amended Petition, ¶ 29.
24
words, Pohl’s characterization of Kassab’s activities as part of a business transaction
that occurred before litigation does not negate attorney immunity because Kassab
engaged in the conduct as part of his ultimate provision of legal services to his clients.
See Haynes & Boone, 631 S.W.3d at 78-79, 81 (applying attorney immunikty to lawyer’s
conduct committed as part of business transaction). In an appeaCl arising from this
case the court of appeals opined that all of Kassab’s conduct that Pohl complains
about “arose out of a commercial transaction involiving the type of legal
services Kassab provides.” Kassab v. Pohl, 612 S.W.3d 571, 578 (Tex. App.—
Houston [1st Dist.] 2020, pet. denied) (emphasis added).
Question 6, the attorney immunity question, asked “Did Kassab acquire or use
Pohl’s trade secret while in an attorney clielnt relationship and attempting to provide
legal services in that relationship iMnvolving the unique office professional skill,
training and authority of an attorney?”23 Although the jury answered “no” to this
question, there is no evidence ito support that finding.
The evidence demonstrated that on November 11, 2016, Kassab entered into a
joint venture agreemeont with other lawyers to investigate and pursue barratry claims
against Pohl. The luncontroverted evidence was that Kassab obtained his first client
at least by Febiruary 2017 and that Kassab continued to use the alleged trade secret
information after this date to acquire more plaintiffs to bring four barratry lawsuits
against Pohl on behalf of more than 400 of Pohl’s former and potential clients. If the
attorney-client contracts and identities of Pohl’s clients are Pohl’s trade secrets, the
23 Verdict, Question 6. As discussed in Kassab’s Motion for New Trial, the Court erred by including
the language “while in an attorney client relationship” in this question.
25
evidence established that Kassab “used” that information while in an attorney-client
relationship with his clients because that information was “used” to file and pursue
the barratry claims. The evidence conclusively proved that Kassab used client contact
information to send notification letters to victims of Pohl’s barratry schkeme through
the middle of 2017, while he was in attorney-client relationshipsC with hundreds of
clients beginning in February 2017. Therefore, there is no evidence to support the
jury’s finding that Kassab did not use client-related informaition while in an attorney-
client relationship and the jury’s answer should be disregarded.
Accordingly, Pohl’s claims against Kassab are barred by attorney immunity.
See Taylor, 644 S.W.3d at 648 (attorney could not be held civilly liable for conduct
which was “criminal in nature” because it wlas committed while discharging duties to
client); Highland Capital Mgmt., LPM v. Looper Reed & McGraw, P.C., No. 05-15-
00055-CV, 2016 Tex. App. LEXIS 442, at *10-11 (Tex. App.—Dallas Jan. 14, 2016,
pet. denied) (mem. op.) (applyiing attorney immunity to claim that attorney engaged
in “malicious conduct with respect to its illegal acquisition, retention, use, and
threatened disclosureo of [the plaintiff’s] proprietary and confidential information”
that “it knew to ble stolen and proprietary in furtherance of its scheme to extort,
slander, and diisparage [the plaintiff]” and “refusing to return and cease use of [the
plaintiff’s] proprietary information”).
26
IX. Pohl’s claims fail as a matter of law because his purported
damages are unrecoverable as a matter of law or because
Pohl presented no evidence of actual loss.
Pohl’s has no recoverable damages against Kassab because TUTSA does not
allow attorney’s fees from other litigation as “actual loss” damagkes, and Pohl
presented no evidence of fair market value or any other actual lossC at trial.
A. Pohl cannot recover attorney’s fees from other
litigation as actual damages as a mattter of law.
TUTSA provides recovery for “actual loss[es] caused by misappropriation,”
TEX. CIV. PRAC. & REM. CODE § 134A.004, but thee act does not define that term.
Although no Texas case has provided a definitioun, the act requires this provision to
“be applied and construed to effectuate its general purpose to make uniform the law
with respect to the subject of this chaapter among states enacting it.” See id. §
134A.008. Thus, the Court must look to and be guided by decisions from other states
that have adopted the Uniform Terade Secrets Act. See Morgan v. Clements Fluids S.
Tex., Ltd., 589 S.W.3d 177, 19f1 n.4 (Tex. App.—Tyler 2018, no pet.) (looking to Florida
law when interpreting TUTSA because “[t]he Florida Uniform Trade Secrets Act is
very similar to the TUTSA”).
Courts in iother jurisdictions “have made clear that ‘actual loss’ means ‘loss of
profits, losto customers or lost market share.’” K3 Enter., Inc. v. Sasowski, No. 20-
24441-CIV-CAN, 2022 U.S. Dist. LEXIS 234206, at *10 (S.D. Fla. 2022) (concluding
reputational damage was not an “actual loss” under Florida’s Uniform Trade Secrets
Act) (citing Fin. Info. Techs., LLC v. iControl Sys., USA, LLC, 21 F.4th 1267, 1276
(11th Cir. 2021) (understanding “actual loss” in terms of lost profits); Selectica, Inc. v.
27
Novatus, Inc., No. 6:13-cv-1708-Orl-40TBS, 2015 U.S. Dist. LEXIS 191940, at *9
(M.D. Fla. 2015) (“‘Actual loss’ has been defined as ‘loss of profits, lost customers or
lost market share.’”); Saforo & Assocs., Inc. v. Porocel Corp., 991 S.W.2d 117, 124
(Ark. 1999) (“actual loss” means “the plaintiff’s lost profits or the defekndant’s gain,
whichever affords the greater recovery.”). C
In a case construing the Idaho Uniform Trade Secrets Act, the Idaho Supreme
Court held that “actual loss” means “lost profits, lost custoimers, lost market share,
and similar losses,” but specifically held that “it would be an anomaly for us to allow
attorney fees to be recovered in a case like this as part of damages.” GME, Inc. v.
Carter, 917 P.2d 754, 757 (Idaho 1996); see also Twin Falls Staffing, LLC v. Visser
(In re Visser), No. 1:13-cv-00408-BLW, 201l4 U.S. Dist. LEXIS 56705, at *9 (D. Idaho
2014) (losses from misappropriation oMf trade secrets “logically include lost profits, but
not attorneys’ fees.”).
The conclusion that attiorney’s fees from other litigation are not actual losses
recoverable under TUTSA is consistent with Texas trade secret law before the statute
was enacted. The Texoas Supreme Court defined recoverable losses for a trade secret
claim as “the valuel of the plaintiff’s lost profits, the defendant’s actual profits from
the use of the isecret, the value a reasonably prudent investor would have paid for
the trade secret, the development costs the defendant avoided by the
misappropriation, and a reasonable royalty.” Sw. Energy Prod. Co. v. Berry-
Helfand, 491 S.W.3d 699, 710–11 (Tex. 2016) (emphasis added). No Texas court has
ever allowed attorneys’ fees in other cases to be recovered as actual damages in a
28
trade secret claim. In fact, at least one has concluded the opposite while dismissing a
TUTSA claim. See Lacore Enters., LLC v. Angles, No. 05-21-00798-CV, 2023 Tex. App.
LEXIS 1926, at *32-33 (Tex. App.—Dallas Mar. 23, 2023, no pet. h.) (mem. op.)
(rejecting contention that “disclosure of [party’s] confidential informaktion” caused
“the attorney’s fees that have been incurred [which] is evidence of Cdamages” because
“attorney’s fees incurred in a lawsuit are not actual damages.”).
This conclusion is further reinforced by Texas law iregarding attorney’s fees
incurred in previous litigation. “[F]ees expended in prior litigation generally are not
recoverable as damages; fees are recoverable only when an agreement between the
parties so provides.” Martin-Simon v. Womack, 68 S.W.3d 793, 797 (Tex. App.—
Houston [14th Dist.] 2001, pet. denied); see lalso Tana Oil & Gas Corp. v. McCall, 104
S.W.3d 80, 81-82 (Tex. 2003) (attorneMy’s fees for defending a different claim are not
recoverable as damages as a matter of law); O’Neal v. Dale, No. 02-20-00173-CV, 2021
Tex. App. LEXIS 466, at *28 i(Tex. App.—Fort Worth Jan. 21, 2021, no pet.) (mem.
op.) (“a party’s claim that he incurred attorney’s fees to defend against [another] claim
is not a viable damageo claim.”); Tex. Mut. Ins. Co. v. Ray Ferguson Interests, Inc., No.
01-02-00807-CV, 2l006 Tex. App. LEXIS 2001, at *23-24 (Tex. App.—Houston [1st
Dist.] Mar. 16i, 2006, pet. denied) (mem. op.) (“financial loss due to time spent by
[party] on litigation matters” in another case was not, as a matter of law, recoverable).
And the law is clear that “[a] party relying on assertions of non-recoverable damages
alone, such as attorney’s fees and expenses sustained in defending a lawsuit . . . has
presented a legal barrier to any recovery.” Woodhaven Partners Ltd. v. Shamoun &
29
Norman, L.L.P., 422 S.W.3d 821, 837 (Tex. App.—Dallas 2014, no pet.).
Pohl has argued that he is entitled to recover attorney’s fees based on an
exception to the general rule based on the “tort of another,” which provides that “[o]ne
who through the tort of another has been required to act in the proktection of his
interests by bringing or defending an action against a third perCson is entitled to
recover reasonable compensation for loss of time, attorney fees and other
expenditures thereby suffered or incurred in the earlier iaction.” Naschke v. Gulf
Coast Conference, 187 S.W.3d 653, 655 (Tex. App.—Houston [14th Dist.] 2006, pet.
denied) (quoting RESTATEMENT (SECOND) OF TORTS § 914 (1979)). But that exception
has never been embraced by the Texas Supreme Court24 and has been flatly rejected
by the Fourteenth Court of Appeals.25 See lNaschke, 187 S.W.3d at 655 (“Because we
are bound to follow the existing lawsM of the State, we are not at liberty to adopt a
theory of recovery that has not been enacted by the Legislature or adopted by the
Texas Supreme Court.”). i
The First Court of Appeals has not specifically held whether the “tort of
another” exception iso viable. But it has stated that because this exception is an
24 See Akin, Gum f ip, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d 106, 119
(Tex. 2009) (“o[W]e need not and do not address whether the exception set out in section 914(2) of the
Second Restnatement should be adopted as Texas law.”).
25 Other intermediate courts of appeals have likewise refused to adopt the tort of another doctrine.
Riner v. Neumann, 353 S.W.3d 312, 323 (Tex. App.—Dallas 2011, no pet.) (“Given the supreme court’s
faithful adherence to the American Rule, and its strong statement in Tony Gullo that trial courts lack
the inherent authority to award fees contrary to the Rule, we decline to adopt a new equitable
exception to the Rule.”); TOKA Gen. Contractors v. Wm. Rigg Co., No. 04-12-00474-CV, 2014 Tex. App.
LEXIS 3776, at *20 (Tex. App.—San Antonio Apr. 9, 2014, pet. denied) (mem. op.) (collecting cases);
Per-Se Techs., Inc. v. Sybase, Inc., No. 01-03-01293-CV, 2005 Tex. App. LEXIS 5096, at *24 (Tex.
App.—Houston [1st Dist.] June 30, 2005, no pet.) (mem. op.) (collecting cases).
30
equitable doctrine it can only apply when the plaintiff is “wholly innocent” of any
wrongdoing. See Per-Se Techs., Inc. v. Sybase, Inc., No. 01-03-01293-CV, 2005 Tex.
App. LEXIS 5096, at *24 (Tex. App.—Houston [1st Dist.] June 30, 2005, no pet.) (mem.
op.); see also Brannan Paving GP, LLC v. Pavement Markings, Inc., 44k6 S.W.3d 14,
27 (Tex. App.—Corpus Christi 2013, pet. denied) (referring to thCe “tort of another
exception” as an “equitable exception” to the general rule).
Here, the jury concluded in response to Question 3 thiat the “wrongful conduct
of Pohl . . . contribute[d] to the injury.”26 Pohl argues that in Question 4, the jury
failed to assign any percentage of responsibility to Pohl. But the issue is not related
to Pohl’s proportionate responsibility. Rather, the point is simply that one without
clean hands cannot obtain an equitable relmedy, and one found to have engaged in
“wrongful conduct” does not have cleaMn hands. See Frazier v. Havens, 102 S.W.3d 406,
414 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (“one who seeks an equitable
remedy must do equity and coime to court with clean hands.”).
Pohl cannot claim the equitable tort of another exception even if it is viable
under Texas law. Seeo Per-Se Techs., 2005 Tex. App. LEXIS 5096, at *24; see also
Pacesetter Pools, Ilnc. v. Pierce Homes, Inc., 86 S.W.3d 827, 834 (Tex. App.—Austin
2002, no pet.) i(“[B]ecause the jury found that Allcox’s damages were caused by the
negligent conduct of both Pierce Homes and Pacesetter, equitable principles do not
allow Pierce Homes to recover its previously incurred attorney’s fees as damages.”);
Dayton Hudson Corp. v. Eldridge, 742 S.W.2d 482, 488 (Tex. App.—Dallas 1987, writ
26 Verdict, at Question 3.
31
denied) (“[I]n the present case, Eldridge is not an innocent party forced to incur costs
and expenses, including attorneys’ fees, to be treated as the legal consequences of
some original wrongful act of another and permitted to be recovered as damages.”).
B. Pohl presented no evidence to support his kother
elements of damage. e
Pohl also sought damages in the form of the “price that a willing buyer and a
willing seller would have agreed on, at the time of the misatppropriation, as a fair
price for Kassab’s [alleged] use of the trade secret(s)” for which the jury awarded
$250,000.27 But Pohl did not present any testimony eabout the “market value” of the
information at issue. See City of Harlingen v. Eustate of Sharboneau, 48 SW.3d 177,
182 (Tex. 2001) (defining “market value” to mean “the price the property will bring
when offered for sale by one who desiresa to sell, but is not obliged to sell, and is bought
by one who desires to buy, but is under no necessity of buying.”). Pohl did testify that
the information about his clientse had intrinsic value to him because he could contact
them as former clients. Butf intrinsic value is not the same as market value. See
Accurate Precision Plating, LLC v. Guerrero, No. 01-14-00706-CV, 2015 Tex. App.
LEXIS 12034, at *7 (Tex. App.—Houston [1st Dist.] Nov. 24, 2015, pet. denied) (mem.
op.). As the purpiorted owner of the property, Pohl could only testify (if he had been
properly deosignated)28 about “market value, not intrinsic value or some speculative
value of the property.” Id. There was no evidence to support the jury’s finding on the
27 Verdict, Question 7(2).
28 As explained in Kassab’s Motion for New Trial, Pohl was erroneously allowed to testify on this issue
over Kassab’s objection.
32
market value of the purported trade secrets.
Presumably, the jury extrapolated the $250,000 figure from evidence that
Kassab and Montague paid Favre a retainer to act as an expert in the barratry
litigation. Even if the jury could reasonably conclude that the $250,000k figure was a
“purchase price” for Pohl’s alleged trade secrets, that would be conCsidered an “actual
value” and not “market value,” which was the theory submitted to the jury. Pike v.
Tex. EMC Mgmt., LLC, 610 S.W.3d 763, 784 n.27 (Tex. 2020i) (distinguishing between
“market value” and “actual value” and noting that “evidence of purchase price alone
cannot establish market value” and approving cases rendering take-nothing
judgments “where purchase price was only evidence of damages presented”).
“[P]urchase price is merely a starting poinlt for calculating actual value,” not market
value. See id. at 784. Further, “one saMle [is] not sufficient to fix a fair market value.”
InterFirst Bank Dall., N.A. v. Risser, 739 S.W.2d 882, 891 (Tex. App.—Texarkana
1987, no writ); Mo., K. & T. Ri. Co. v. Moss, 135 S.W. 626, 627 (Tex. Civ. App. 1911,
no writ) (“Evidence of a single sale is admissible, but not alone sufficient to establish
market value.”). o
Finally, thelre was no evidence to support the jury’s award of $200,000 for the
“value of the dievelopment costs that Kassab avoided by [allegedly] misappropriating
Pohl’s trade secret(s).”29 There was no testimony by Pohl about Kassab’s development
costs. Kassab testified that he did not know how much in costs he avoided, if any, by
using information provided by Precision. And no other witness testified about
29 Verdict, Question 7(3).
33
development costs. Although damages in trade-secret cases can be flexible and
imaginative, damages “cannot be based on sheer speculation.” Sw. Energy, 491
S.W.3d at 712. Because Pohl presented no evidence for the jury to make a just and
reasonable inference regarding development costs saved by Kassab, thkat award was
improper. C
X. Pohl’s claims fail for lack of causation because it was
Pohl’s barratry that was the sole cause of htis damages, not
anything that Kassab did. i
Pohl failed to present legally sufficient evidence of proximate cause.
“Proximate cause has two elements: cause in fact and foreseeabilty.” Akin, Gump,
Strauss, Hauer & Feld, L.L.P. v. Nat'l Dev. & Research Corp., 299 S.W.3d 106, 122
(Tex. 2009). “Causation must be proved, anld conjecture, guess, or speculation will not
suffice as that proof.” Id. In Akin, GMump, the Court found insufficient evidence to
support the jury’s award of appellate attorney’s fees as damages to the client in a
legal malpractice claim becausie there was no evidence that if the client had obtained
a favorable judgment, the opposing party in the underlying case would not have
appealed and caused tohose fees to be incurred. Id. at 123.
Likewise, Plohl presented no evidence that Pohl would not have been sued for
barratry and iincurred the fees that he did if Kassab had not obtained the client
information from Favre. None of the damages claimed by Pohl were caused by
Kassab’s conduct, but instead occurred because of Pohl’s own misconduct. If Pohl had
not committed barratry, he would not have been sued or grieved by his former clients
for committing barratry. In other words, Pohl’s criminal conduct was the sole
34
proximate cause of his own damages, see Peeler, 909 S.W.2d at 496-97, or by Pohl’s
former clients’ decision to bring the barratry proceedings were a superseding or new
and intervening causes of Pohl’s damages. See Stanfield, 494 S.W.3d at 102-03. There
is no evidence to support the jury’s conclusion that Kassab’s condkuct was the
proximate cause of Pohl’s damages. See Akin, Gump, 299 S.W.3d Cat 123; Saulsberry
v. Ross, 485 S.W.3d 35, 50 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (client’s
award of attorney’s fees as damages was insufficient wheni evidence suggested that
client “would have incurred legal fees” regardless of the lawyer’s actions).
Even if Kassab created a condition by notifying Pohl’s former and rejected
clients of Pohl’s barratry, the resulting harm – the attorney’s fees Pohl incurred
defending against those proceedings – wasl caused by Pohl, who committed barratry
in the first instance, and the clients, Mwho sued Pohl for committing that barratry. It
was not caused by Kassab, the lawyer merely representing those clients. See
Stanfield, 494 S.W.3d at 99 (eixplaining that the mere fact original tortious conduct
is a “but for” cause of intervening conduct does not make the first actor liable for the
conduct of the secondo). Accordingly, Pohl’s claims against Kassab fail as a matter of
law for lack of caulsation.
XI. Piohl’s conspiracy claim is pre-empted under TUTSA or
oChapter 33.
TUTSA provides that it “displaces conflicting tort, restitutionary, and other
law of this state providing civil remedies for misappropriation of a trade secret.” TEX.
CIV. PRAC. & REM. CODE §134A.007. In Reynolds v. Sanchez Oil & Gas Corp., No. 01-
18-00940-CV, 2023 Tex. App. LEXIS 8903 (Tex. App.—Houston [1st Dist.] Nov. 30,
35
2023, no pet. h.), the plaintiff sued for misappropriation of trade secrets and aiding
and abetting breach of fiduciary duty. Id. at *7-8. The court of appeals concluded that
the aiding and abetting claim was “primarily based on the individual appellants’
misappropriation of trade secrets” and “provide[ed] remedies for thke underlying
misconduct of misappropriation of trade secrets.” Id. at 47. “Under Cthe plain language
of TUTSA, these claims conflict with civil remedies for misappropriation of a trade
secret.” Id. at *47-48. Therefore, “TUTSA preempts these iclaims to the extent they
are based on appellants’ alleged misappropriation of trade secrets.” Id. at *48.
Pohl’s conspiracy claim, like the aiding and abetting claim in Reynolds, is
based entirely on Kassab’s alleged misappropriation of trade secrets. The conspiracy
question asked, “[r]egarding the conduct ylou found in answer to Question 2 [which
asked “[d]id any of the parties listed bMelow misappropriate Pohl’s trade secret?”], was
Kassab part of a conspiracy that damaged Pohl with any of those named below?”30
Because Pohl’s conspiracy claiim is “primarily based on” alleged misappropriation of
trade secrets, it is preempted. See Reynolds, 2023 Tex. App. LEXIS 3067, at *47-48;
VEST Safety Med. Serovs., LLC v. Arbor Env't, LLC, No. 4:20-CV-0812, 2022 U.S. Dist.
LEXIS 127285, at l*10 (S.D. Tex. 2022) (“the weight of authority from district courts
within the Fiifth Circuit … [demonstrate a] conspiracy claim is preempted by
TUTSA.”). Thus, the judgment should not include joint and several liability against
Kassab.
30 Verdict, Question 15.
36
XII. Exemplary damages are improper because one of the
predicate findings for exemplary damages was not
answered by the jury unanimously.
“Whether a jury's award of exemplary damages is supported by a unanimous
finding as to liability and the amount of exemplary damages is constkrued as a ‘no
evidence’ or ‘matter of law’ issue.” Redwine v. Peckinpaugh, 535 SC.W.3d 44, 50 (Tex.
App.—Tyler 2017, no pet.); Cullum v. White, 399 S.W.3d 173, 188 (Tex. App.—San
Antonio 2011, pet. denied) (whether plaintiff is entitledi to exemplary damages
because there was not a unanimous verdict is a “matter of law issue.”).
Question 19 was the only question in the jury charge that asked about
exemplary damages. The predicate instruction for Question 19 said, “Answer the
following question only if you unanimouslly answered ‘Yes’ to Question No. 17 or
Question No. 18. Otherwise, do not anMswer the following question.”31
The jury did not answer Question 18.
Some members of the ijury answered Question 17 “Yes,” finding that the
misappropriation of trade secrets was willful and malicious.32 But the certificate at
the end of the jury veordict makes it unmistakably clear that the answer to Question
17 was not unanilmous. First, in the general part of the jury certificate the jury
declined to chieck the box indicating that “Our verdict is unanimous,” but instead
checked the box indicating that only ten jurors agreed to every answer:
31 Verdict, Question 19.
32 Verdict, Question 17.
37
The additional certificate required the jury to indicate whether certaink liability and
damages questions were answered unanimously: l
In response to that instruction, the presiding juruor signed certificates indicating that
Questions 2 and 19 were unanimous. But thne presiding juror conspicuously did not
sign the certificate for Question 17: r i
Thus, the jury’s ansCwer to Question 17 was unmistakably not unanimous.
The jury’s failure to answer Question 17 unanimously precludes any award of
exemplary d
afmages by both rule and statute. See TEX. R. CIV. P. 292 (“A verdict may
be rendered awarding exemplary damages only if the jury was unanimous in finding
liability for and the amount of exemplary damages.”) (emphasis added); TEX. CIV.
PRAC. & REM. CODE § 41.003(d) (“Exemplary damages may be awarded only if the
jury was unanimous in regard to finding liability for and the amount of exemplary
38
damages.”) (emphasis added).
Texas cases have not hesitated to apply this principle articulated in both rule
and statute. See Cullum, 399 S.W.3d at 188 (“As a matter of law, a party cannot
recover exemplary damages without a unanimous verdict on the underlkying theory of
liability.”); Redwine, 535 S.W.3d at 52 (concluding “that the trCial court erred in
entering judgment awarding exemplary damages” when “[d]espite [the jury] having
answered the exemplary damages question, which was prediicated on its unanimously
having found that [the defendant] made multiple defamatory statements, the jury
stated in the charge that its verdict was not unanimous.”); DeAtley v. Rodriguez, 246
S.W.3d 848, 850 (Tex. App.—Dallas 2008, no pet.) (a non-unanimous verdict on
liability was insufficient as a matter of llaw to support an award of exemplary
damages). M
Because the predicate finding of malicious misappropriation was the only way
to get to exemplary damages, aind that question was not answered unanimously, the
judgment cannot include exemplary damages as a matter of law.
o CONCLUSION & PRAYER
For these relasons, Kassab asks the Court to grant this motion, disregard the
jury findings, iand enter a take nothing judgment in favor of Kassab or reduce the
judgment as set forth herein.
39
ALEXANDER DUBOSE JEFFERSON
/s/ Kevin Dubose
Kevin Dubose
kdubose@adjtlaw.com
Texas State Bar No. 0615050k0
1844 Harvard Street e
Houston, Texas 77008 C
Phone (713) 523-0667 
Facsimile (713) 522-4553
FOGLER, BRAR, Oi’NEIL & GRAY, LLP
/s/ Murray Fogler
Murray Foegler
mfogler@foglerbrar.com
Texas uState Bar No. 07207300
909 Fannin, Suite 1640
Houston, Texas 77002
(l713) 481-1010
a(713) 574-3224 (Fax)
THE KASSAB LAW FIRM
e /s/ David Eric Kassab
i Lance Christopher Kassab
f Texas State Bar No. 00794070
David Eric Kassab
Texas State Bar No. 24071351
o 1214 Elgin Street
Houston, Texas 77004
l Telephone: (713) 522-7400
i E-service: eserve@kassab.law
o ATTORNEYS FOR KASSAB DEFENDANTS
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this document has been
forwarded to all parties pursuant to the Texas Rules of Civil Procedure on this the
19th day of January, 2024.
/s/ David Eric Kassab
David Eric Kassab
40
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
David Kassab
Bar No. 24071351
david@kassab.law r
Envelope ID: 83597613
Filing Code Description: No Fee Documents
Filing Description: THE KASSAB DEFS MOTION FOR JUDGtMENT NOT
WITHSTANDING THE VERDICT AND TO DISREGARD JUiRY FINDINGS
Status as of 1/19/2024 3:37 PM CST s
Case Contacts 
Name BarNumber Email g TimestampSubmitted Status
Todd Taylor ttaylor@jandflaw.com 1/19/2024 3:31:14 PM SENT
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT
Harris Wells hwaells@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT
Todd Taylor ttaylor@jandflaw.com 1/19/2024 3:31:14 PM SENT
Scott M.Favre scott@favrepa.com 1/19/2024 3:31:14 PM SENT
Lawyer Wade c lawyerwade@hotmail.com 1/19/2024 3:31:14 PM SENT
Chris C.Pappas f cpappas@krcl.com 1/19/2024 3:31:14 PM SENT
Non-Party Witness Billy Shepherd  bshepherd@spcounsel.com 1/19/2024 3:31:14 PM SENT
Non-Party Dona Pohl DonaLyann@yahoo.com 1/19/2024 3:31:14 PM SENT
Non-Party Edgar Jaimes C edgarsroom@gmail.com 1/19/2024 3:31:14 PM SENT
Kevin Dubose a 6150500 kdubose@adjtlaw.com 1/19/2024 3:31:14 PM SENT
Marisa Barrera Cruz Hurd 24041157 mhurd@adjtlaw.com 1/19/2024 3:31:14 PM SENT
Lance Kassab o eserve@kassab.law 1/19/2024 3:31:14 PM SENT
Murray JFogleUr mfogler@foglerbrar.com 1/19/2024 3:31:14 PM SENT
Murray Fogler mfogler@fbfog.com 1/19/2024 3:31:14 PM SENT
Andrew Johnson ajohnson@thompsoncoe.com 1/19/2024 3:31:14 PM SENT
Benjamin Ritz britz@thompsoncoe.com 1/19/2024 3:31:14 PM SENT
Dale Jefferson 10607900 jefferson@mdjwlaw.com 1/19/2024 3:31:14 PM SENT
Raul Herman Suazo 24003021 suazo@mdjwlaw.com 1/19/2024 3:31:14 PM SENT
Kevin Graham Cain 24012371 cain@mdjwlaw.com 1/19/2024 3:31:14 PM SENT
D Kassab david@kassab.law 1/19/2024 3:31:14 PM SENT
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
David Kassab
Bar No. 24071351
david@kassab.law r
Envelope ID: 83597613
Filing Code Description: No Fee Documents
Filing Description: THE KASSAB DEFS MOTION FOR JUDGtMENT NOT
WITHSTANDING THE VERDICT AND TO DISREGARD JUiRY FINDINGS
Status as of 1/19/2024 3:37 PM CST s
Case Contacts 
D Kassab david@kassab.lagw 1/19/2024 3:31:14 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 1/19/2024 3:31:14 PM SENT
L Kassab lance@kassab.law 1/19/2024 3:31:14 PM SENT
Kelly Skelton reception@kassab.law 1/19/2024 3:31:14 PM SENT
Murray J. Fogler 7207300 mfaogler@foglerbrar.com 1/19/2024 3:31:14 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT
Thallia Malespin tmalespin@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT
Misty Davis c mdavis@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT
Harris Wells f hwells@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT
David Kassab  david@kassab.law 1/19/2024 3:31:14 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT"
66,2024-01-19,MNT,Kassab,Motion for New Trial,"Kassab Defendants' Motion for New Trial, filed in the alternative to the JNOV Motion, raising 22 grounds for new trial including: (1) newly discovered evidence of witness bribery/tampering (Walker 30% confession), (2-4) factual insufficiency on trade secret ownership and misappropriation, (5-6) jury charge errors on Q3 and proportionate responsibility, (7) limitations question error on Q5, (8) insufficiency on Q5 answer, (9-10) refusal to submit unlawful acts defense and immunity/privilege questions, (11) exclusion of barratry expert testimony, (12) Q6 attorney immunity question error, (13) insufficiency on Q6, (14) improper Q7(1) submission (attorney fees not TUTSA damages), (15) property owner rule error, (16) insufficiency on Q7(2)-(3), (17-18) insufficiency on willful/malicious and exemplary damages, (19) conspiracy preemption, (20) denial of responsible third party designations, (21) denial of abatement, (22) privilege/offensive use errors, and (23) dismissal of barratry counterclaims, plus insufficiency of attorney fees evidence","Post-judgment motion filed January 19, 2024, simultaneously with the JNOV Motion, within 30 days of the December 22, 2023 Final Judgment. Filed in the alternative — if Court does not grant JNOV, it should grant a new trial on any of 22 enumerated grounds.",POST-1,N/A,Phase 5,2024-01-19_MNT_Kassab-Motion-for-New-Trial_FILED.pdf,"New trial on all claims — vacate final judgment and order new trial. Alternatively, new trial on specific issues and/or remittitur of exemplary damages.","1/19/2024 3:31 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 83597613
By: Rhonda Momon
Filed: 1/19/2024 3:31 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et al. § IN THE DISTRICT COURT
V. § OF HARRIS COUNTY, TEXAS
SCOTT FAVRE, et al. § 281st JUDICIALk DISTRICT
THE KASSAB DEFENDANTS’ MOTION FOR NEWC TRIAL
In the alternative to their Motion for Judgment Notwithstanding the Verdict
and to Disregard Jury Findings (“the JNOV Motion”), Defenidants Lance Christopher
Kassab and Lance Christopher Kassab, P.C. d/b/a The Kassab Law Firm (“Kassab”)
file this Motion for New Trial and would respectfully show as follows.
SUMMARY
Pohl’s claims against Kassab are barlred as a matter of law, so the Court should
grant the JNOV Motion. To the extenMt the Court does not disregard findings of the
jury and enter a judgment notwithstanding the verdict in favor of Kassab, it should
grant a new trial for any one oif the following reasons:
1. Newly discovered evidence demonstrates that material witnesses
engaged in poerjury and Pohl engaged in unlawful bribery and witness
tamperinlg which resulted in the jury being deceived as to material
issuesi.
2. Factually insufficient evidence supports the jury’s finding in Question
1 that Pohl owned a trade secret in (a) attorney-client fee contracts
and (b) lists of Pohl’s actual, potential, or rejected clients.
3. The trial court erred by submitting Question 2, the misappropriation
question, to the jury because it failed to sufficiently distinguish the
acts of each defendant and included liability theories not supported
by legally sufficient evidence.
4. Factually insufficient evidence supports the jury’s finding in Qukestion
2 that Kassab misappropriated Pohl’s alleged trade secreCt.
5. The Court improperly submitted Question 3 on Pohl’s “wrongful
conduct” because it is not tied to the privilege quesition, proportionate
responsibility question or anything else in the jury charge.
6. The Court erred by refusing to submit Kassab’s proposed jury
question on immunity or privilege.
7. The Court erred by excluding explert testimony from Kassab and his
experts on whether Pohl comMmitted barratry.
8. The Court erred by refusing to submit Kassab’s proposed jury
question on his unlawiful acts defense.
9. The court erred in submitting Question 5, the limitations question,
because it oimproperly included the words “by Kassab” when
misapprolpriation of trade secrets is not a continuing tort and Pohl
sued Kiassab for conspiracy and thus misappropriation by any alleged
co-conspirator would have caused limitations to accrue.
10. The court erred in submitting Question 6, the attorney immunity
question, because it improperly included the language “in an
attorney-client relationship,” which was a comment on the weight of
the evidence.
11. Factually insufficient evidence supports the jury’s answer to Question
6, which asked whether Kassab used the purported trade secrets
while in an attorney-client relationship. k
12. The Court erred by submitting Question 7(1) and by alClowing Pohl
and his expert John Zavitsanos to testify about the attorney’s fees
incurred in the underlying barratry proceedings beicause the question
and testimony related to an improper element of damages for a
TUTSA claim.
13. The trial court erred by allowing Pohl to testify on lost revenue, lost
profits, or the purported value lof the trade secrets because the
property owner rule does noMt apply, and Pohl was not designated to
testify on those issues.
14. Factually insufficienit evidence supports the jury’s answer to
Questions 7(2) and (3).
15. Factually insoufficient evidence supports the jury’s finding that “the
misapprolpriation of Pohl’s trade secret(s) by Kassab was willful and
maliciious” (Question 8) based on “clear and convincing evidence”
(Question 17).
16. Factually insufficient evidence supports the jury’s finding of
exemplary damages in Question 19.
17. The Court improperly submitted Question 15 because conspiracy is
pre-empted by TUTSA or Chapter 33.
18. The Court erred by denying Kassab’s designation of responsible third
parties, including Billy Shepherd, Donalda Pohl, Edgar Jaimes, Ken
Talley and Magdalena Santana, which would have materially kaltered
the jury’s verdict. C
19. The Court erred by denying Kassab’s motion to abate this case
pending resolution of the related civil barratry liitigation currently
pending against Pohl in which Pohl claims attorney’s fees as damages.
20. The Court erred by allowing Pohl to assert affirmative claims against
Kassab but then withhold relevant and material information based
on purported claims of privilege. l
21. The Court erred by dismiMssing Kassab’s counterclaims for civil
barratry.
22. Factually insufficienti evidence supports the jury’s award of attorney’s
fees because the testimony from Pohl’s expert was conclusory and the
invoices wereo heavily redacted.
l ARGUMENT
I. Niewly discovered evidence demonstrates that Pohl
oengaged in unlawful bribery and witness tampering that
materially affected the jury verdict.
A motion for new trial is appropriate based on newly discovered evidence. See
TEX. R. CIV. P. 324(b)(1). Evidence that could not be discovered by Kassab until after
trial demonstrates that this jury verdict was impacted by key witnesses changing
their testimony because of Pohl’s bribery and witness tampering, resulting in a fraud
on this Court.
Specifically, in a December 8, 2023 recorded telephone call with Kassab, Scott
Walker, one of Pohl’s purported former agents and a key witness kin this case,
confessed that he and Kirk Ladner1 were promised 30 percentC of any judgment
against Kassab in exchange “for our depositions and our testimony and our positions
on certain things that, you know, helped and – in getting ithat judgment.”2 Walker
further stated that Pohl made that offer before their depositions3 and that Walker
and Ladner were “coached on how to be deposed.”4 Walker candidly admitted that he
“felt like [he] should call because … the whole premise of the depositions was based
on the 30 percent that we were promised.”5l
Walker’s candid after-trial revMelation demonstrates that Pohl obtained the
judgment against Kassab by committing witness tampering and suborning Walker’s
and Ladner’s aggravated perjuiry.6 A person commits the criminal offense of witness
1 Walker and Ladner were co-owners of Precision Marketing Group, a defendant in this case. Pohl
claimed that because thCey were his agents, they had an obligation to preserve his purported trade
secrets. 
2 Exhibit 1, Audio cTranscription, 5:6-15. Lance Kassab has authenticated the audio transcription with
his declaration, afttached as Exhibit 2. Additionally, the entire audio is hosted on Dropbox and may be
accessed via this link: https://www.dropbox.com/scl/fi/q3cgwnq8kzud4zpa3hlgx/December-8-2023-
Call-withU-Scott-Walker.m4a?rlkey=4srkzuiwva8af9ywq4qaun8zx&dl=0
3 Exhibit 1, Audio Transcription, 5:20-23.
4 Exhibit 1, Audio Transcription, 6:3-17.
5 Exhibit 2, Declaration of Lance Kassab.
6 Walker’s out of court statements are not hearsay because they would expose Walker to criminal
tampering if they, with the intent to influence a witness, confer or agree to confer any
benefit on a witness or prospective witness in an official proceeding, to testify falsely
or withhold any testimony or information. Id. at § 36.05(a). Walker’s statements
demonstrate that Pohl did that by offering him and Ladner 30 pekrcent of any
judgment against Kassab in exchange for their favorable and untrCuthful testimony.
Aggravated perjury occurs if the person, with intent to deceive, makes a false
statement under oath in an official proceeding. TEX. P DENi. CODE §§ 37.02, 37.03.
Walker stated that he and Lardner testified in their depositions, under oath and in
official proceedings, about “facts that weren’t necessarily told the correct way or told
on how it really happened.”7 Moreover, Walker made it clear that these fale
statements were made with the intent to dleceive because “the whole premise of the
depositions was based on the 30 perceMnt that we were promised.”8
Moreover, the false testimony from Walker and Ladner drastically changed the
course of the trial and resulteid in the fraudulent judgment. Although Walker and
Ladner testified one way in the Mississippi litigation they brought against Pohl, when
they were deposed in tohis case they reversed course on seminal issues of barratry and
ownership of Pohl’ls purported trade secrets.
liability. SUee TEX. R. EVID. 803(24)(A) (excluding from hearsay those statements that have a tendency
“to expose the declarant to civil or criminal liability.”). Additionally, the statements by Walker are
excluded from hearsay because, as Pohl testified at trial, Walker was his agent or because they are
made by a co-conspirator. TEX. R. EVID. 801(e)(2)(D), (E).
7 Exhibit 1, Audio Transcription, 6:3-17.
8 Exhibit 2, Declaration of Lance Kassab.
For instance, in his deposition in the Mississippi litigation, Walker testified
that Pohl paid Precision $5 million in “barratry money” to unlawfully solicit clients.9
In that deposition, Walker testified it was “clear to [him] it was barratry.”10 But in
this case, after being coached by Pohl, Walker recanted that testimony,k and took the
position that he “didn’t know what barratry meant until [his lawyerC in the Mississippi
litigation] Tina [Nicholson] taught [him] well on how to say the word”11 and “advised”
him to lie.12 But then in the unsolicited recorded phone caill, Walker confessed that
“it was barratry.”13 Walker admitted he was “coached on how to be deposed” in this
case and acknowledged that “some of the things that we were doing was, in fact,
barratry, you know, and I still feel like it was and I think – I do believe it was.”14
Walker’s testimony about ownershipl of information that Pohl claimed were his
trade secrets was also impacted by PoMhl’s witness tampering. Walker initially signed
an agreement that confirmed the 17 boxes of materials at issue in this lawsuit were
owned by Precision and not Piohl. But after being coached by Pohl, Walker took the
position in his deposition in this case “[w]hat I believed was that they were in our
possession. I did not boelieve that we owned them.”15 But in the unsolicited recorded
9 Exhibit 3, August i24, 2016 Deposition of Scott Walker, at 72-77, 196-197.
10 Exhibit 3, Aufgust 24, 2016 Deposition of Scott Walker, at 149.
11 ExhibitU 4, August 31, 2022 Deposition of Scott Walker, at 385.
12 Exhibit 4, August 31, 2022 Deposition of Scott Walker, at 384.
13 Exhibit 1, Audio Transcription, 8:14.
14 Exhibit 1, Audio Transcription, 8:12-24.
15 Exhibit 4, August 31, 2022 Deposition of Scott Walker, at 147-149.
phone call, Walker admits that “the whole premise of [his and Ladner’s] depositions
was based on the 30 percent that [they] were promised.”16
Because Walker’s and Ladner’s false deposition testimony in this case on these
seminal issues was inconsistent with their testimony from the Mississikppi litigation,
Kassab decided not to call Walker and Ladner as live witnesses at Ctrial.17 If Pohl had
not engaged in unlawful witness tampering and bribery, Walker and Ladner
presumably would have testified truthfully in their depositiions that Pohl hired them
to commit barratry, and that Precision owned the file documents that were sold to
Scott Farve and that the materials were Precision’s work product, not Pohl’s trade
secrets. If they had testified truthfully, Kassab would have called them as
witnesses,18 and that testimony would halve had a material impact on the jury’s
verdict. Specifically, that testimonyM would have impacted the jury’s answers to
Question 1 and 2, which asked whether Pohl owned a trade secret, whether Kassab
engaged in any misappropriatiion, and whether that misappropriation was regular or
willful; and it would have impacted the answer to Question 4, regarding Pohl’s
percentage of responosibility for causing the attorney’s fees associated with the
barratry litigationl. In other words, the newly discovered evidence demonstrates that
the jury was dieceived on material issues.
16 Exhibit 1, Audio Transcription, 11:23-24.
17 Exhibit 2, Declaration of Lance Kassab.
18 Exhibit 2, Declaration of Lance Kassab.
Accordingly, the Court should grant a new trial in light of this newly discovered
evidence. See In the Interest of E.S., No. 02-20-00407-CV, 2021 Tex. App. LEXIS 4153,
at *24 (Tex. App.—Fort Worth May 27, 2021, pet. denied) (mem. op.) (“In cases where
a witness willfully testifies falsely regarding a material fact, a new ktrial may be
granted.”); In re Marriage of Hutcherson, 2019 Tex. App. LECXIS 8719, at *10
(vacating judgment when “that the award is based on false testimony, and the [fact
finder] was deceived as to a material issue.”); Dixie Gas i& Fuel Co. v. Jacobs, 47
S.W.2d 457, 462 (Tex. Civ. App. – Beaumont 1932, writ dism'd w.o.j.) (where affidavits
presented with motion for new trial showed judgment was based on perjury, trial
court erred in denying motion for new trial); Rosebud Sioux Tribe v. A & P Steel, Inc.,
733 F.2d 509, 521-522 (8th Cir. 1984) (disltrict court abused its discretion by failing
to grant new trial based on newly dMiscovered evidence that party paid witness to
testify falsely).
II. Factually insuffiicient evidence supports the jury’s finding
in Question 1f that Pohl owned a trade secret in (a)
attorney-client fee contracts and (b) lists of Pohl’s actual,
potential, or rejected clients.
Factually insufficient evidence supports the jury’s answer to Question 1, which
asked whether Piohl owned a trade secret in either attorney-client fee contracts or
lists of Pohlo’s actual, potential or rejected clients.
As a matter of law, Pohl cannot own a trade secret in attorney-client contracts
because they are owned by the client. See In re George, 28 S.W.3d 511, 516 (Tex. 2000)
(“The attorney is the agent of the client, and the work product generated by the
attorney in representing the client belongs to the client.” (emphasis added)). Any
testimony from Pohl or his expert witness John Zavitsanos to the contrary was
conclusory, made without foundation or legal authority, and amounts to no evidence.
Conversely, the testimony from Kassab and his experts established that the attorney-
client contracts are owned by the clients, not Pohl. Their testimony is ksupported by
Texas law governing ownership of client-related materials.19 ECven Pohl’s office
manager, Mary Francis Arnold, testified that she did not consider the attorney-client
contracts trade secrets. Thus, there was insufficient evideince to support the jury’s
answer to Question 1(a), which concluded that Pohl had rightful, legal or equitable
title to the attorney-client fee contracts.
Insufficient evidence also supports the jury’s answer to Question 1(b), finding
that Pohl owned a trade secret in “[a]ny lislt of the identities and contact information
of [his] actual, potential or rejected clMients.” Pohl testified that he did not have a list.
Rather, the lists were created by another attorney named Jimmy Williamson and
Precision. The current owner iof Precision, Scott Favre, testified that Precision’s list
was owned by Precision, not Pohl. Pohl’s office manager also testified that the lists
were created by Precoision, not Pohl. There was no testimony from any witness to
establish that Pohll was the “owner” of any of the lists of clients that were provided to
Kassab. i
Pohl also failed to present evidence that the information “derives independent
19 The fact that Pohl can assert a lien over the client file does not mean he is the rightful, legal, or
equitable owner of the contracts. See In re McCann, 422 S.W.3d 701, 706 (Tex. Crim. App. 2013) (noting
that “a lien, by its definition, is a transitory interest in someone else's property and, therefore, the
attorney asserting such a lien never owns the property at issue, the client owns the file by implication
(if the attorney does not)”) (emphasis added).
10
economic value, actual or potential, from not being generally known to, and not being
readily ascertainable through proper means by, another person who can obtain
economic value from the disclosure or use of the information.” TEX. CIV. PRAC. & REM.
CODE § 134A.002(6)(B). To meet his burden of proving misappropriaktion of trade
secrets, Pohl was required to prove that the information misapprCopriated provided
him with a “competitive advantage.” Fmc Techs. v. Murphy, No. 01-21-00455-CV,
2023 Tex. App. LEXIS 5984, at *62 (Tex. App.—Houston i[1st Dist.] Aug. 10, 2023,
pet. filed) (mem. op.). Pohl failed to present factually sufficient evidence — or any
evidence — to establish what competitive advantage the information provided him to
the exclusion of others.
Moreover, Pohl failed to offer evidelnce to establish that he took “reasonable
measures under the circumstances toM keep the information secret.” TEX. CIV. PRAC. &
REM. CODE § 134A.002(6). The uncontroverted evidence established that the attorney-
client contracts were not mariked “confidential” or “trade secret” and that multiple
individuals in the underlying BP and auto accident litigation had unfettered access
to the information. Poohl’s office manager testified that she did not secure the
attorney-client conltracts “in any form or fashion.” She testified that Pohl never told
her the attorniey-client contracts were his trade secrets, and that the owners of
Precision kept the information Pohl claimed were his trade secrets in a storage unit
to which anyone could have access to. She further testified that she kept the
information at her home in unlocked cabinets without any instruction from Pohl to
secure the information. The same information was also kept unsecured in Ladner’s
11
garage for months.
Moreover, the client-related information was not a trade secret because it was
generally known to third parties. or Pohl to submit a claim to BP, he had to disclose
client-related information to BP. Further, the uncontroverted testimkony at trial
established that the list of master clients was voluntarily prodCuced in discovery
during the Mississippi litigation to Favre, Tina Nicholson and several third parties20
in August 2016 – before the information was provided ito Kassab – without a
protective order, confidentiality stamp, confidentiality agreement, or anything else
prohibiting its disclosure. Additionally, the master list of clients was posted publicly
online through PACER in the Mississippi litigation for more than six years and is
still there today. Based on the evidence, a lreasonable jury could not have concluded
that Pohl used reasonable measures uMnder the circumstances to keep the information
secret.
III. The Court erreid by submitting Question 2 to the jury
because it failefd to sufficiently distinguish the acts of each
defendant and included liability theories not supported by
legally sufficient evidence.
Pohl sued Kassab for indirect misappropriation under subsection
134A.002(3)(B) fior allegedly “misappropriating Pohl’s trade secrets by using them
without thoe express or implied consent of Pohl” in violation of Section
134A.002(3)(B).21 Pohl made no allegation, and presented no evidence, that Kassab
20 Those parties included, among others, Nathan Farmer, Charles Mikhail, Carl Hagwood, James
Welch, Scott Walker, Steve Seymour, Kirk Ladner, Cyndi Rusnak, Marian Mchehee, Yousef Nasrallah,
Trevor Brock and Robin Gross.
21 Plaintiffs’ First Amended Petition, ¶ 42.
12
engaged in direct misappropriation and acquired Pohl’s purported trade secrets
through improper means in violation of Section 134.002(3)(A). Yet, Question 2
improperly tracked the language of Section 134.002(3)(A) and therefore a theory of
liability against Kassab for direct misappropriation that was neitkher pled nor
supported by the evidence. See Tex. Comm'n on Human RightsC v. Morrison, 381
S.W.3d 533, 537 (Tex. 2012) (“A broad-form question cannot be used to put before the
jury issues that have no basis in the law or the evidence.”) (iinternal quotation marks
omitted); Title Source, Inc. v. HouseCanary, Inc., 612 S.W.3d 517, 531 (Tex. App.—
San Antonio 2020, pet. denied) (“Because those theories are not supported by the
evidence, they should have been omitted from the ‘improper means’ definition that
was submitted to the jury.”). l
Moreover, Pohl alleged onMly that Favre, Precision and Nicholson
misappropriated his trade secrets “by theft.”22 Yet the definition of “improper means”
in the jury charge was incorrecitly defined to include multiple other acts besides theft:
Because there was no allegation or evidence that the alleged misappropriation
occurred nby any means other than theft, the definition was improper. See
HouseCanary, 612 S.W.3d at 531 (submission of definition of “improper means” that
included “bribery” and “espionage” was improper when “there is no evidence [the
22 Plaintiffs’ First Amended Petition, ¶ 41.
13
defendant] acquired the trade secrets through bribery [or] through espionage.”).
The jury was influenced by the erroneous inclusion of the additional
misappropriation theories. Pohl alleged that Precision and its former owners were
the first to appropriate Pohl’s purported trade secrets, first by convertking them and
using them in the Mississippi litigation, and then selling them tCo Favre, who then
allegedly sold them to Kassab. Despite that, the jury found that Precision did not
engage in any wrongful misappropriation. Yet, the jury coincluded that Kassab did
misappropriate the information he acquired from Favre and found Kassab 70%
responsible for Pohl’s alleged damages. Because Pohl heavily emphasized the
evidence of misappropriation by others through means not relevant to Kassab, the
Court cannot rule out the possibility that lthe jury found misappropriation based on
those theories. That is sufficient to deMmonstrate harm from the erroneous submission
of unpled and unproven theories of misappropriation. See Tex. Comm'n on Human
Rights v. Morrison, 381 S.W.3id 533, 537 (Tex. 2012) (“[W]hen a broad-form question
allows a finding of liability based on an invalid theory, an appealing party does not
have to prove that thoe jury actually relied on the invalid theory.”). The inclusion of
those issues in thle charge constituted harmful error. See Crown Life Ins. Co. v.
Casteel, 22 S.Wi.3d 378, 389 (Tex. 2000).
IV. Factually insufficient evidence supports the jury’s finding
in Question 2 that Kassab misappropriated Pohl’s trade
secret.
Pohl alleged that Favre and Precision illegally misappropriated trade secrets
from him, and that Kassab subsequently committed indirect misappropriation by
14
acquiring illegally misappropriated trade secrets from Favre and Precision.23
Although Pohl originally sued Precision, he non-suited his claims against Precision.
Nevertheless, Precision was designated as a responsible third party, and defined in
the charge to include Precision’s former owners (Scott Walker, Steve kSeymour and
Kirk Ladner) prior to May 12, 2015 and Favre after May 12, 2015C.24 When the jury
was asked whether Precision misappropriated trade secrets from Pohl, it found that
Precision did not.25 It also answered “0” in Question 4 whein asked what percentage
of the “fault that caused the injury” was attributable to Precision.26 This finding
demonstrates that there is insufficient evidence that Kassab engaged in
misappropriation.
To be liable for misappropriation balsed upon the acquisition of a trade secret,
Kassab must “know[] or ha[ve] reasonM to know that the trade secret was acquired by
improper means” or “derived from or through a person who used improper means to
acquire the trade secret.” TEXi. CIV. PRAC. & REM. CODE §§ 134A.002(3)(A), (B)(ii)(a).
23 Plaintiff’s First Amendedp Petition, at ¶ 21 (“Favre and Precision illegally misappropriated
Pohl’s proprietary ando confidential information and property …which included information
about and/or communicCations with as many as 10,000 or more of Pohl’s clients/prospective clients.
Favre and Precision stole physical copies of certain of the information, stole Pohl’s computers,
and misappropriateda electronic data to which they had access through Precision’s work for Pohl.”)
(emphasis addedc); iid. at ¶ 40 (“Favre, Precision, and Nicholson willfully and maliciously
misappropriated iPohl’s trade secrets by acquiring them through improper means—specifically, by
theft.”); id. at o¶ 41 (“Favre, Precision, and Nicholson willfully and maliciously misappropriated Pohl’s
trade secretns by disclosing them via sale to Kassab and Montague (who purchased the trade
secret inUformation knowing that it had been stolen) without the express or complied consent of
Pohl.”) (emphasis added); id. at ¶ 42 (“All Defendants willfully and maliciously misappropriated Pohl’s
trade secrets by using them without the express or implied consent of Pohl.”).
24 Verdict, at Definitions.
25 Verdict, Question 2(a)(3) and 2(b)(3).
26 Verdict, Question 4(3).
15
But here, the jury determined that Precision did not engage in any
misappropriation.27 And if Precision and its former owners did not engage in
misappropriation by transferring the information to Favre, then Favre could not have
acquired the information by improper means. The jury’s finding that Pkrecision, and
those associated with Precision, did not misappropriate anything —C meaning it either
owed no duty to Pohl or breached no duty to Pohl when it provided Pohl's alleged
information to Favre, who then provided it to Kassab — pirecludes liability against
Kassab for indirect misappropriation.
Even if the jury found that Precision had misappropriated this information,
there is insufficient evidence that Kassab knew the information had been acquired
by improper means. See TEX. CIV. PRACl. & REM. CODE § 134A.002(3)(A). The
testimony was that Favre purchased PMrecision, which certified to Favre that it owned
the information at issue, and then Favre provided that information to Kassab, after
certifying to Kassab that the iinformation belonged to Precision and not Pohl. Thus,
Pohl presented no evidence that Kassab knew or had reason to know that the
information was a traode secret owned by Pohl – as opposed to information owned by
Precision – nor wals there evidence that the information was obtained by Favre or
Precision throuigh improper means.
V. The Court improperly submitted Question 3 on Pohl’s
“wrongful conduct” because it was not tied to any portion
of the charge.
Question 3 asked the jury “Did the wrongful conduct of Pohl, if any, contribute
27 Verdict, Question 2(a)(3) and 2(b)(3).
16
to the injury, if any, found by the jury?” This question is improper because it was not
tied to any other part of the charge, so that this important finding against Pohl is left
hanging by itself, when it should have been directly relevant to other parts of the
charge, including Question 4, the proportionate responsibility questionk, Question 6,
the attorney immunity question, and Kassab’s unlawful acts, privilCege and immunity
questions, which were improperly refused (see infra at Section VIX).
VI. The Corut improperly refused Kassabi’s proportionate
responsibility question.
Kassab submitted a proper proportionate reseponsibility question, which was
refused. That question instructed the jury to uanswer the question that if they
answered the misappropriation question “yes” as to Kassab or “yes” to the question
about Pohl’s wrongful conduct. The propaosed question asked: “What percentage of the
fault that caused the injury do you find to be attributable to each of those listed below
and found by you in your answeers to have been at fault” and then listed Pohl and
Kassab and other defenda
ntfs.28 The Court erred by refusing that question. If that
question had been properly submitted, the jury likely would have assigned some
responsibility to Pohl for his injuries.
Instead, tihe Court submitted Question 4, which asked the jury “[w]hat
percentage oof the fault that caused the injury do you find to be attributable to each of
those listed below and found by you in your answers to Question No. 2 to have been
at fault.” The jury put “0” for Pohl because Pohl was not identified in Question 2,
which asked what parties misappropriated Pohl’s alleged trade secrets. Question 4
28 Exhibit 5, Refused Proposed Question 7.
17
should have indicated that if the jury finds that Pohl contributed to causing the
injury, it should assign a percentage of fault to Pohl. The language in Question 4 was
improper.
VII. The court improperly submitted the limitations qukestion
(Question 5) with the limiting words “by Kassab” e because
it failed to allow for the possibility that misappCropriation
by any alleged co-conspirator would have caused
limitations to accrue.
Question 5 asked: “[b]y what date should Pohl, in tihe exercise of reasonable
diligence, have discovered the acquisition, use or disclosure of his trade secrets by
Kassab?” The Court erred by adding the words “by Kassab.” Because Pohl sued
Kassab for conspiracy and misappropriation accrued upon the first act of
misappropriation by Kassab’s alleged co-clonspirators. So this limitations question
should have asked when the misapprMopriation occurred in a way that included the
earlier acts of Kassab’s alleged co-conspirators, rather than being limited to him.
“A person must bring suiit for misappropriation of trade secrets not later than
three years after the misappropriation is discovered or by the exercise of reasonable
diligence should haveo been discovered.” TEX. CIV. PRAC. & REM. CODE 16.010(a). “A
misappropriation lof trade secrets that continues over time is a single cause of
action and thie limitations period described by Subsection (a) begins running
without regard to whether the misappropriation is a single or continuing
act.” Id. at § 16.010(b) (emphasis added). In other words, TUTSA “explicitly precludes
treating trade secret misappropriation as a continuing tort.” Gen. Universal Sys. v.
HAL Inc., 500 F.3d 444, 451 (5th Cir. 2007).
18
“A cause of action for trade-secret misappropriation accrues when the trade
secret is actually used.” Sw. Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 721
(Tex. 2016). Here, the evidence demonstrated that Pohl knew the files and materials
he claims are his trade secrets had been misappropriated and used by kPrecision and
its former owners Walker, Ladner and Seymore in June 2014, wChen they used the
client related information in the Mississippi litigation to file claims against Pohl. “Use
of the trade secret means commercial use by which the offeniding party seeks to profit
from the use of the secret.” Id. That was the first act of misappropriation, which began
accrual of limitations. TEX. CIV. PRAC. & REM. CODE 16.010(b).
The next alleged act of misappropriation occurred when Precision’s former
owners again profited from the alleged tralde secret information by selling Precision
and its files, including the alleged trMade secret information, to Favre in May 2015.
“Use” of a trade secret means “any exploitation of the trade secret that is likely to
result in injury to the trade siecret owner or enrichment to the [non-trade secret
owner].” Sw. Energy, 491 S.W.3d at 722 (emphasis added). Because Pohl was aware
that Precision had usoed these purported trade secrets in May 2015, he was required
to file his claims algainst Kassab and other alleged coconspirators before May 2018,
at the latest. S
iee TEX. CIV. PRAC. & REM. CODE 16.010(a).
Pohl did not file this lawsuit until August 2018, more than three years after
Precision and Favre used Pohl’s purported trade secrets, alleging Kassab, Favre and
Precision “engaged in a scheme pursuant to which they illegally obtained,
maintained, and used trade secrets and other confidential information and property
19
belonging to Pohl.”29
Pohl argued that his claims against Kassab did not accrue until September 19,
2017, when the court in the Mississippi litigation ordered the expert retainer
agreement between Favre and Kassab to be produced, which Pohl chakracterized as
an agreement to purchase the purported trade secrets. But transfeCr or use of already-
misappropriated trade secrets by a purported co-conspirator does not re-start the
limitations clock. See TEX. CIV. PRAC. & REM. CODE 16.
01i0(a); Agar Corp., Inc. v.
Electro Circuits Int'l, LLC, 580 S.W.3d 136, 145 (Tex. 2019) (rejecting the “last-overt-
act accrual rule” and concluding that conspiracy claim for misappropriation of trade
secrets accrues against all co-conspirators “when the underlying tort accrues.”) (citing
with approval Harang v. Aetna Life Ins. Clo., 400 S.W.2d 810, 813 (Tex. Civ. App.—
Houston 1966, writ ref'd n.r.e.) (concMluding limitations runs from when the injury
occurs and therefore conspiracy claim against the late-added co-conspirators was
time-barred)). In other words,i “[a] conspiracy claim based on an earlier underlying
tort does not re-accrue when the co-conspirators agree to commit a second tort or
make another overt aoct.” Agar Corp., 580 S.W.3d at 145.
Therefore, ilt is irrelevant when Pohl discovered his purported trade secrets
had been useid “by Kassab” as opposed to other alleged co-conspirators. See id.
(conspiracy claim against co-conspirator time barred because the claim accrued when
trade secrets were used initially used by other coconspirators, not when alleged
coconspirator later purchased the trade secret information). The proper inquiry is the
29 Plaintiffs’ Original Petition, ¶ 2
20
question submitted by Kassab that this Court erroneously refused: “[b]y what date
should Pohl, in the exercise of reasonable diligence, have discovered the acquisition,
[use] or disclosure of his trade secrets?” See TEX. CIV. PRAC. & REM. CODE 16.010(a)
(claim for misappropriation accrues when “misappropriation is discovekred or by the
exercise of reasonable diligence should have been discovered.”);C Sw. Energy, 491
S.W.3d at 722 (“the statute of limitations did not begin to run until [the plaintiff]
knew or should have known of facts that in the exercise of reiasonable diligence would
have led to discovery of the misappropriation.”); Agar Corp., 580 S.W.3d at 146
(claims against co-conspirators accrue on the same date as the first overt act). The
Court therefore should not have included the “by Kassab” language in the charge.
VIII. Insufficient evidence sulpports the jury’s answer to
Question 5. a
In Question 5 the jury found that Pohl should have discovered the acquisition,
use or disclosure of his trade alleeged trade secrets by Kassab by August 19, 2017. The
uncontroverted evidence demfonstrated that Pohl knew his materials he claims as
trade secrets had been appropriated and used by Precision and its former owners in
June 2014, when they used the client related information in the Mississippi litigation
to file claims agaiinst Pohl. Pohl testified that Kassab was part of the “team of thieves”
who commiotted that alleged theft in 2014. Thus, Pohl should have known of Kassab’s
alleged conspiracy to misappropriate his alleged trade secrets no later than June
2014.
At the latest, Pohl should have discovered the acquisition, use or disclosure of
his trade secrets in May 2015 when Precision’s former owners again profited from the
21
alleged trade secret information by selling Precision and its files, including the
alleged trade secret information, to Favre, who Pohl alleged was Kassab’s co-
conspirator. Reasonable jurors could not disregard this evidence.
IX. The Court erred by refusing to submit Kassab’s prokposed
jury question on his unlawful acts defense (Peroposed
Question 6) and immunity and privilegeC defense
(Proposed Question 8). 
The trial court is required to submit questions raised bty the written pleadings
and the evidence. TEX. R. CIV. P. 278. This is a “sub
stantive, non-discretionary
directive to trial courts requiring them to submit reequested questions to the jury if
the pleadings and any evidence support them.” Eulbaor v. Smith, 845 S.W.2d 240, 243
(Tex. 1992). A trial court may refuse to submit an issue only if no evidence exists to
warrant its submission. Id. Kassab reaquested the Court to submit two proposed
questions relating to his affirmative defenses raised in his pleadings, which the
evidence supported. e
First, Kassab requestfed that the Court submit Proposed Question 6, which
asked, “Did Pohl commit unlawful or unethical conduct including barratry or the
unauthorized practice of law to acquire the information he is claiming as trade
secrets?”30 That iquestion was proper and directly relevant to Kassab’s unlawful acts
defense, whoich provides that “no action will lie to recover a claim for damages, if to
establish it the plaintiff requires aid from an illegal transaction, or is under the
necessity of showing or in any manner depending upon an illegal act to which he is a
party.” Gulf, C. & S. F. RY. Co. v. Johnson, 621, 9 S.W. 602, 602-03 (1888). “Courts
30 Exhibit 6, Refused Proposed Question 6.
22
have interpreted this defense to mean that if the illegal act is inextricably intertwined
with the claim and the alleged damages would not have occurred but for the illegal
act, the plaintiff is not entitled to recover as a matter of law.” Sharpe v. Turley, 191
S.W.3d 362, 366 (Tex. App.—Dallas 2006, pet. denied). Courts havek applied the
doctrine without a conviction of a crime so long as “the unlawfCul act barring the
plaintiff's claim was in fact illegal conduct.” McNally v. McNally, No. 02-18-00142-
CV, 2020 Tex. App. LEXIS 7211, at *27 (Tex. App.—Fort iWorth Sep. 3, 2020, pet.
denied) (mem. op.).
There was substantial evidence to support submission of this proposed
question. Pohl’s own testimony demonstrated that he committed the unauthorized
practice of law in Mississippi because he hlad no license there, and his pleadings in
the Mississippi litigation demonstrateMd that Pohl hired Precision to commit unlawful
solicitation of clients. Kassab testified that he believed Pohl committed barratry and
the unauthorized practice of laiw in Mississippi. Kassab’s expert, Professor Benjamine
Cooper, testified Pohl committed the unauthorized practice of law in Mississippi.
Pohl’s office managero, Mary Francis Arnold, testified that Pohl paid Precision to
acquire clients andl refer them to Pohl, and that Pohl paid Precision a percentage of
his fees in exchiange. Donalda Pohl, Pohl’s wife, testified to facts indicating that Pohl
committed barratry. Lacy Reese testified to facts indicating that Pohl committed
barratry. A “yes” answer to Proposed Question 6 would have established that Pohl
acquired the purported trade secrets unlawfully, thus precluding any recovery for
misappropriation of trade secrets.
23
Second, Kassab requested that the Court submit Proposed Question 8, which
asked, “Did Kassab use or disclose Pohl’s information for the purpose of reporting,
investigating, or filing a lawsuit relating to a suspected violation of law, a commission
of a crime, or other matters of substantial public concern?”31 That questiokn was proper
and directly relevant to Kassab’s privilege or immunity defense becCause “trade secret
law permits disclosures relevant to public health or safety, commission of crime or
tort, or other matters of substantial public concern.” Bartinicki v. Vopper, 532 U.S.
514, 539 (2001); RESTATEMENT (THIRD) OF UNFAIR COMsPETITION § 40, cmt. c (1995) (“A
privilege is likely to be recognized, for example, in connection with the disclosure of
information that is relevant to public health or safety, or to the commission of a crime
or tort, or to other matters of substantial pulblic concern.”); RESTATEMENT OF THE LAW,
TORTS § 757, cmt. d (“A privilege Mto disclose may also be given by the law,
independently of the other's consent, in order to promote some public interest.”);
Alderson v. United States, 718 iF. Supp. 2d 1186, 1200 (C.D. Cal. 2010), aff'd, 686 F.3d
791 (9th Cir. 2012) (“[T]here simply cannot be any trade secret about ongoing
illegality.”); Sys. Operoations, Inc. v. Sci. Games Dev. Corp., 425 F. Supp. 130, 136
(D.N.J. 1977) (“dislclosure of trade secret information may itself be privileged.”).
There wias more than sufficient evidence to support submission of this proposed
question. Pohl testified that Kassab used or disclosed Pohl’s alleged trade secrets –
the attorney-client contracts and list of Pohl’s actual, potential, or rejected clients –
to file lawsuits and grievance proceedings against Pohl for barratry. The act of
31 Exhibit 7, Refused Proposed Question 8.
24
barratry is a “serious crime” and certainly a matter of substantial public concern. See
TEX. DISC. R. PROF’L COND. 8.04(b). Kassab denied that the information constituted
Pohl’s trade secrets but testified that the information was used to discharge his
ethical obligations and report Pohl’s misconduct to the disciplinary akuthority and
inform individuals who may have been unlawfully solicited by PoChl that what Pohl
did was a crime.32 A “yes” answer to Proposed Question 8 would have established that
Kassab had privilege or immunity with respect to any purpoirted misappropriation or
“use” of Pohl’s alleged trade secrets.
Charge error is generally considered harmful, and thus reversible, if it relates
to a contested critical issue. See R.R. Comm'n of Tex. v. Gulf Energy Expl. Corp., 482
S.W.3d 559, 566-71 (Tex. 2016). Kassab’sl Proposed Questions 6 and 8 were both
contested critical issues because a M“yes” answer to either question would have
precluded liability against Kassab. The Court erred by refusing to submit these
questions, warranting a new triial. See id. (trial court erred when it erroneously failed
to submit to the jury affirmative defense that was pled and supported by evidence);
Fort Worth Indep. Scoh. Dist. v. Palazzolo, 498 S.W.3d 674, 686 (Tex. App.—Fort
Worth 2016, pet. dlenied) (same).
32 “[P]ubliUc policy strongly favors exposure of crime.” Wal-Mart Stores, Inc. v. Medina, 814 S.W.2d 71,
73 (Tex. App.—Corpus Christi 1991, writ denied). Kassab had an ethical obligation to notify the State
Bar of Pohl’s misconduct, and the individuals under the rules of ethics and as an officer of the court.
See TEX. DISC. R. PROF’L COND. 8.03(a) (“a lawyer having knowledge that another lawyer has
committed a violation of applicable rules of professional conduct … shall inform the appropriate
disciplinary authority.”); id. at Cmt. 1 (“Reporting a violation is especially important where the victim
is unlikely to discover the offense.”). Kassab was doing what Pohl should have done, disclosing
misconduct to the individuals. See Cluck v. Mecom, 401 S.W.3d 110, 114 (Tex. App.—Houston [14th
Dist.] 2011, pet. denied) (“A fiduciary has an affirmative duty to make a full and accurate confession
of all his fiduciary activities, transactions, profits, and mistakes.”).
25
X. The Court erred by precluding Kassab and his experts
from testifying that Pohl committed barratry.
Even though the Court concluded that evidence of Pohl’s barratry was
relevant, it improperly precluded Kassab and his experts from testifying that Pohl
committed barratry. Exclusion of this evidence was error that probeably caused the
rendition of an improper judgment. 
“An opinion is not objectionable just because it embratces an ultimate issue.”
Tex. R. Evid. 704. “[A]n expert may state an opinion on mixed questions of law and
fact, such as whether certain conduct was negligenet or proximately caused injury,
that would be off limits to the ordinary witness.” uIn re Christus Spohn Hosp. Kleberg,
222 S.W.3d 434, 440 (Tex. 2007). Whether Pohl committed barratry is a mixed
question of law and fact because “a staandard or measure has been fixed by law and
the question is whether the person or conduct measures up to that standard.” Mega
Child Care v. Tex. Dep't of Proteective & Regulatory Servs., 29 S.W.3d 303, 309 (Tex.
App.—Houston [14th Dist.] f2000, no pet.). Thus, Texas courts have often allowed
expert witnesses to testify that a person’s conduct amounted to barratry. See The
State Bar v. Kilpatrick, 874 S.W.2d 656, 657 (Tex. 1994) (noting the State Bar had
presented an expiert who “testified on the issue of barratry” and rendering judgment
disbarring aottorney who was guilty of barratry, even absent any criminal conviction);
State v. Mercier, 164 S.W.3d 799, 816 (Tex. App.—Corpus Christi 2005, pet. ref'd)
(concluding that the State’s expert’s testimony about how “the Texas Disciplinary
Rules of Professional Conduct prohibit an attorney to pay a non-attorney for economic
benefits where the non-attorney referred cases to the attorney, namely, in exchange
26
for soliciting auto accident victims” and how the defendant’s “conduct violated rules
7.03(b) and (c) of the Disciplinary Rules” negated an exception to the criminal
barratry statute which excepts conduct permitted by the Disciplinary Rules).33
The exclusion of this evidence probably caused the rendition ofk an improper
verdict. If the evidence of Pohl’s barratry had been admitted thCe jury could have
concluded that Pohl is not the legal, equitable or rightful owner of any purported
trade secret, or it could have found Pohl primarily responsiible for the attorney’s fees
that Pohl incurred defending against the barratry proceedings. The evidence was not
cumulative of other evidence because no witness was permitted to offer an opinion
that Pohl committed barratry. Rather, Kassab was limited to testifying to his
personal “belief” that Pohl committed barrlatry, which carries much less wait than a
disinterested expert witness. M
XI. The court erred in submitting Question 6 with the
language “in an aettorney client relationship” because that
was an impropeir comment on the weight of the evidence.
A trial court may n
ot comment on the weight of the evidence. TEX. R. CIV. P.
277. “To be a direct coomment on the weight of the evidence, the issue submitted must
suggest to the juryl the trial court's opinion on the matter.” H.E. Butt Grocery Co. v.
Bilotto, 985 S.iW.2d 22, 24 (Tex. 1998). Here, the trial court directly commented on
the weight of the evidence in Question 6, which asked: “Did Kassab acquire or use
33 See also Reynolds v. State, No. 08-15-00373-CR, 2017 Tex. App. LEXIS 11059, at *15-16, 32-33 (Tex.
App.—El Paso Nov. 29, 2017, pet. ref'd) (upholding criminal conviction for barratry based on State’s
expert witness who testified about “the barratry statute and the appropriate manner in which an
attorney can secure clients” and noting that while the defendant contended that the money paid to a
purported marketing company was for legitimate advertising, “the jury could have concluded
otherwise with the guidance of the State's expert who addressed what might be proper marketing
activities through third parties.”).
27
Pohl’s trade secret while in an attorney client relationship and attempting to provide
legal services in that relationship involving the unique office professional skill,
training and authority of an attorney?”34 The limiting language “while in an attorney
client relationship” suggested the trial court’s opinion that Kassab cokuld not have
used Pohl’s trade secrets while in an attorney-client relationship bCecause the alleged
misappropriation occurred before Kassab had any clients.
XII. The jury’s answer to Question 6 wais supported by
insufficient evidence.
The jury’s “no” answer to Question 6 was supeported by insufficient evidence
because the great weight and preponderance of tuhe evidence demonstrated that even
if the attorney-client information constituted trade secrets, Kassab “used” that
information while in an attorney-client arelationship. Moreover, he was attempting to
provide legal services in that relationship involving the unique office professional
skill, training and authority of aen attorney.
The evidence proved fthat Kassab used client contact information to send
notification letters to victims of Pohl’s barratry scheme through the middle of 2017
while in attorney-client relationships with hundreds of clients beginning in February
2017. Pohl testifiied that Kassab’s “use” of the information was the proximate cause
of his damaoges, which included attorney’s fees incurred in connection with lawsuits
and grievances that Kassab filed on his clients’ behalf.35 The evidence was undisputed
34 Verdict, Question 6.
35 Verdict, Question 7(1).
28
that except for one of the grievances, Kassab filed those proceedings on behalf of
his clients while in an attorney-client relationship.36 The acquisition of clients and
filing of lawsuits are actions taken “to facilitate the rendition of legal services” that
fall within attorney immunity. Youngkin v. Hines, 546 S.W.3d 675, 68k2 (Tex. 2018)
(recognizing that “the complained-of actions included filing lawsuiCts and pleadings,”
which fell within the doctrine of attorney immunity). Indeed, the jury awarded Pohl
attorney’s fees as damages for defending against lawsuiits brought by Kassab’s
clients, finding those fees to be “proximately caused” by Kassab’s misuse of the
purported trade secrets.37
Accordingly, the jury could not reasonably conclude that Kassab did not “use”
Pohl’s alleged trade secrets. l
XIII. The trial court erredM by submitting Question 7(1) and
allowing Pohl and his expert John Zavitsanos to testify
about the attorney’s fees incurred in the underlying
barratry proceeedings because attorney’s fees from
previous litigatiion are not recoverable in a TUTSA claim.
TUTSA provides recovery for “actual loss[es] caused by misappropriation” but
the act does not defione that term. See TEX. CIV. PRAC. & REM. CODE § 134A.004.
Although no Texasl case has attempted to define that term in TUTSA, the act requires
it to “be applieid and construed to effectuate its general purpose to make uniform the
36 It is worth noting that the court of appeals in this case has already concluded that “the alleged
purchase of Pohl[’s] client list for those clients’ contact information, followed by the mailing of attorney
advertisements to those individuals about specific types of claims they might be able to pursue against
a specifically identified attorney, qualifies as statements or conduct that arose out of a
commercial transaction involving the type of legal services Kassab provides.” Kassab v. Pohl,
612 S.W.3d 571, 578 (Tex. App.—Houston [1st Dist.] 2020, pet. denied) (emphasis added).
37 Verdict, Question 7.
29
law with respect to the subject of this chapter among states enacting it.” TEX. CIV.
PRAC. & REM. CODE § 134A.008. Thus, the Court must look to and be guided by
decisions from other states that have adopted the Uniform Trade Secrets Act. See
Morgan v. Clements Fluids S. Tex., Ltd., 589 S.W.3d 177, 191 n.4 (Texk. App.—Tyler
2018, no pet.) (looking to Florida law when interpreting TUTSA becCause “[t]he Florida
Uniform Trade Secrets Act is very similar to the TUTSA”).
Courts in other jurisdictions “have made clear that ‘aictual loss’ means ‘loss of
profits, lost customers or lost market share.’” K3 Enter., Inc. v. Sasowski, No. 20-
24441-CIV-CAN, 2022 U.S. Dist. LEXIS 234206, at *10 (S.D. Fla. 2022) (concluding
reputational damage was not an “actual loss” under Florida’s Uniform Trade Secrets
Act) (citing Fin. Info. Techs., LLC v. iConltrol Sys., USA, LLC, 21 F.4th 1267, 1276
(11th Cir. 2021) (understanding “actuaMl loss” in terms of lost profits); Selectica, Inc. v.
Novatus, Inc., No. 6:13-cv-1708-Orl-40TBS, 2015 U.S. Dist. LEXIS 191940, at *9
(M.D. Fla. 2015) (“‘Actual lossi’ has been defined as ‘loss of profits, lost customers or
lost market share.’”); Saforo & Assocs., Inc. v. Porocel Corp., 991 S.W.2d 117, 124
(Ark. 1999) (concludiong that “actual loss” means “the plaintiff’s lost profits or the
defendant’s gain, wlhichever affords the greater recovery.”).
In a casie construing the Idaho Uniform Trade Secrets Act, the Idaho Supreme
Court held that “actual loss” means “lost profits, lost customers, lost market share,
and similar losses,” but specifically held that “it would be an anomaly for us to allow
attorney fees to be recovered in a case like this as part of damages.” GME, Inc. v.
Carter, 917 P.2d 754, 757 (Idaho 1996); see also Twin Falls Staffing, LLC v. Visser
30
(In re Visser), No. 1:13-cv-00408-BLW, 2014 U.S. Dist. LEXIS 56705, at *9 (D. Idaho
2014) (citing Carter to conclude that losses from misappropriation of trade secrets
“logically include lost profits, but not attorneys’ fees.”).
The conclusion that attorney’s fees from other litigation are notk actual losses
recoverable under TUTSA is consistent with Texas trade secret lawC before the statute
was enacted. The Texas Supreme Court defined recoverable losses for a trade secret
claim as “the value of the plaintiff’s lost profits, the defendiant’s actual profits from
the use of the secret, the value a reasonably prudent investor would have paid for
the trade secret, the development costs the defendant avoided by the
misappropriation, and a reasonable royalty.” Sw. Energy Prod. Co. v. Berry-
Helfand, 491 S.W.3d 699, 710–11 (Tex. 20l16) (emphasis added). No Texas court has
ever allowed attorneys’ fees in otherM cases to be recovered as actual damages in a
trade secret claim. In fact, at least one has concluded the opposite while dismissing a
TUTSA claim. See Lacore Enteirs., LLC v. Angles, No. 05-21-00798-CV, 2023 Tex. App.
LEXIS 1926, at *32-33 (Tex. App.—Dallas Mar. 23, 2023, no pet. h.) (mem. op.)
(rejecting contention othat “disclosure of [party’s] confidential information” caused
“the attorney’s feesl that have been incurred [which] is evidence of damages” because
“attorney’s feeis incurred in a lawsuit are not actual damages.”).
This conclusion is further reinforced by Texas law in general regarding
attorney’s fees incurred in previous litigation. “[F]ees expended in prior litigation
generally are not recoverable as damages; fees are recoverable only when an
agreement between the parties so provides.” Martin-Simon v. Womack, 68 S.W.3d
31
793, 797 (Tex. App.—Houston [14th Dist.] 2001, pet. denied); see also Tana Oil & Gas
Corp. v. McCall, 104 S.W.3d 80, 81-82 (Tex. 2003) (attorney’s fees for defending a
different claim are not recoverable as damages as a matter of law); O’Neal v. Dale,
No. 02-20-00173-CV, 2021 Tex. App. LEXIS 466, at *28 (Tex. App.—Fokrt Worth Jan.
21, 2021, no pet.) (mem. op.) (“a party’s claim that he incurredC attorney’s fees to
defend against [another] claim is not a viable damage claim.”); Tex. Mut. Ins. Co. v.
Ray Ferguson Interests, Inc., No. 01-02-00807-CV, 2006 Tiex. App. LEXIS 2001, at
*23-24 (Tex. App.—Houston [1st Dist.] Mar. 16, 2006, pet. denied) (mem. op.)
(“financial loss due to time spent by [party] on litigation matters” in another case was
not, as a matter of law, recoverable). And the law is clear that “[a] party relying on
assertions of non-recoverable damages alolne, such as attorney’s fees and expenses
sustained in defending a lawsuit . . . Mhas presented a legal barrier to any recovery.”
Woodhaven Partners Ltd. v. Shamoun & Norman, L.L.P., 422 S.W.3d 821, 837 (Tex.
App.—Dallas 2014, no pet.). i
Pohl has argued that he is entitled to recover attorney’s fees based on an
exception to the generoal rule based on the “tort of another,” which applies to one who
has been forced byl the tort of another to protect his or her interests by bringing or
defending an aiction against a third person. See Naschke v. Gulf Coast Conference, 187
S.W.3d 653, 655 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) (quoting
Restatement (Second) Of Torts § 914 (1979)). When applicable and accepted, that
exception would allow the person forced to bring or defend an action is entitled to
recover reasonable compensation for attorney fees incurred in the earlier action. But
32
that exception has never been recognized by the Texas Supreme Court38 and has been
flatly rejected by the Fourteenth Court of Appeals.39 See Naschke, 187 S.W.3d at 655
(“Because we are bound to follow the existing laws of the State, we are not at liberty
to adopt a theory of recovery that has not been enacted by the Legislatukre or adopted
by the Texas Supreme Court.”). C
The First Court of Appeals has not specifically held whether the “tort of
another” exception is viable. But it has stated that becaiuse this exception is an
equitable doctrine it can only apply when the plaintiff is “wholly innocent” of any
wrongdoing. See Per-Se Techs., Inc. v. Sybase, Inc., No. 01-03-01293-CV, 2005 Tex.
App. LEXIS 5096, at *24 (Tex. App.—Houston [1st Dist.] June 30, 2005, no pet.) (mem.
op.). Not only did the jury find that Pohl wlas not wholly innocent of any wrongdoing,
but Pohl stipulated in post-trial briefiMng that he was not seeking equitable remedies.
Because attorney’s fees are not recoverable damages under TUTSA, the Court
erred when it submitted Questiion 7(1) to the jury and that error was harmful because
it permitted the jury to find an improper element of damages, which the Court
awarded to Pohl in thoe judgment.
38 See Akin, Gum f ip, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d 106, 119
(Tex. 2009) (“o[W]e need not and do not address whether the exception set out in section 914(2) of the
Second Restnatement should be adopted as Texas law.”).
39 Other intermediate courts of appeals have likewise refused to adopt the tort of another doctrine.
Riner v. Neumann, 353 S.W.3d 312, 323 (Tex. App.—Dallas 2011, no pet.) (“Given the supreme court’s
faithful adherence to the American Rule, and its strong statement in Tony Gullo that trial courts lack
the inherent authority to award fees contrary to the Rule, we decline to adopt a new equitable
exception to the Rule.”); TOKA Gen. Contractors v. Wm. Rigg Co., No. 04-12-00474-CV, 2014 Tex. App.
LEXIS 3776, at *20 (Tex. App.—San Antonio Apr. 9, 2014, pet. denied) (mem. op.) (collecting cases);
Per-Se Techs., Inc. v. Sybase, Inc., No. 01-03-01293-CV, 2005 Tex. App. LEXIS 5096, at *24 (Tex.
App.—Houston [1st Dist.] June 30, 2005, no pet.) (mem. op.) (collecting cases).
33
Moreover, expert or lay opinion testimony is only permitted if it will be helpful
to determining a fact in issue. TEX. R. EVID. 701, 702. Because attorney’s fees as
damages are not a recoverable under TUTSA, any testimony from Pohl or his expert,
John Zavitsanos, about the attorney’s fees incurred in the underlyking barratry
proceedings is irrelevant and should have been excluded. See EnbCridge Pipelines (E.
Tex.) L.P. v. Avinger Timber, LLC, 386 S.W.3d 256, 262 (Tex. 2012) (trial court must
act as an evidentiary gatekeeper by screening out irrelevaint testimony). That error
was harmful because the jury relied on testimony from Pohl and Zavitsanos to find
damages for the attorney’s fee incurred un prior litigation.
XIV. Factually insufficient evidence supports the jury’s answer
to Questions 7(2) and (3).
Factually insufficient evidence saupports the jury’s answer to Question 7(2),
which found $250,000 in damages for the “price that a willing buyer and a willing
seller would have agreed on, at ethe time of the misappropriation, as a fair price for
Kassab’s [alleged] use of t
hef trade secret(s).”40 This question asked about “market
value,” which means “the price the property will bring when offered for sale by one
who desires to sell, but is not obliged to sell, and is bought by one who desires to buy,
but is under no inecessity of buying.” City of Harlingen v. Estate of Sharboneau, 48
SW.3d 177,o 182 (Tex. 2001). As the purported owner of the property, Pohl could only
testify (if he had been properly designated, which he wasn’t)41 about “market value,
not intrinsic value or some speculative value of the property.” Id. Yet, Pohl presented
40 Verdict, Question 7(2).
41 As explained next, Pohl was erroneously allowed to testify on this issue over Kassab’s objection.
34
no evidence of the “market value” of the purportedly trade secret information. Rather,
he only testified as to the “intrinsic value” or “actual value” of the information, which
is not market value. See City of Harlingen, 48 SW.3d at 182.
Presumably, the jury improperly adopted the $250,000 figure fkrom evidence
that Kassab and Montague paid Favre a retainer to act as an expeCrt in the barratry
litigation. Even if the jury could reasonably conclude that the $250,000 figure was a
“purchase price” for Pohl’s alleged trade secrets, that wouldi be considered an “actual
value” and not “market value,” which was the theory submitted to the jury. Pike v.
Tex. EMC Mgmt., LLC, 610 S.W.3d 763, 784 n.27 (Tex. 2020) (distinguishing between
“market value” and “actual value” and noting that “evidence of purchase price alone
cannot establish market value” and alpproving cases rendering take-nothing
judgments “where purchase price Mwas only evidence of damages presented”).
“[P]urchase price is merely a starting point for calculating actual value,” not market
value. See id. at 784. Further,i “one sale [is] not sufficient to fix a fair market value.”
InterFirst Bank Dall., N.A. v. Risser, 739 S.W.2d 882, 891 (Tex. App.—Texarkana
1987, no writ); Mo., Ko. & T. R. Co. v. Moss, 135 S.W. 626, 627 (Tex. Civ. App. 1911,
no writ) (“Evidencel of a single sale is admissible, but not alone sufficient to establish
market value.”i). There was insufficient evidence to support the jury’s finding on the
market value of the purported trade secrets.
Finally, there was insufficient evidence to support the jury’s finding in
Question 7(3) of $200,000 for the “value of the development costs that Kassab avoided
35
by [allegedly] misappropriating Pohl’s trade secret(s).”42 While damages in trade-
secret cases can be flexible and imaginative, Pohl did not proffer sufficient evidence
for the jury to have made a just and reasonable inference regarding development costs
saved by Kassab, if any. See Szczepanik v. First S. Tr. Co., 883 S.W.2d 6k48, 649 (Tex.
1994) (amount of damages must “be shown by competent evidencCe with reasonable
certainty.”). Instead, the jury was left to speculate or guess about the amount Kassab
saved in development costs based on the alleged misapproipriation, which does not
constitute legally sufficient evidence. See Pike v. Tex. EMC Mgmt., LLC, 610 S.W.3d
763, 782 (Tex. 2020) (plaintiff in misappropriation of trade secrets case cannot
“leav[e] the jury to speculate on the amount [the defendant] saved” by engaging in
the alleged misappropriation); Sw. Energyl, 491 S.W.3d at 712 (trade secret damages
“cannot be based on sheer speculationM.”).
XV. The Court erred by allowing Pohl to testify on the
purported value eof the trade secrets because the property
owner rule doesi not apply, and Pohl was not designated to
testify on thatf issue.
The trial court overruled Kassab’s objection to Pohl testifying about the value
of the purported trade secrets. Texas Rule of Evidence 701 has been interpreted to
include a “propeirty owner rule,” which holds that “a property owner is qualified to
testify to thoe value of his property even if he is not an expert and would not be
qualified to testify to the value of other property.” Accurate Precision Plating, LLC v.
Guerrero, No. 01-14-00706-CV, 2015 Tex. App. LEXIS 12034, at *7 (Tex. App.—
Houston [1st Dist.] Nov. 24, 2015, pet. denied) (mem. op.).
42 Verdict, Question 7(3).
36
However, the property owner rule “does not extend to matters that are of a
technical or specialized nature.” Jatex Oil & Gas Expl. L.P. v. Nadel & Gussman
Permian, L.L.C., 629 S.W.3d 397, 407 (Tex. App.—Eastland 2020, no pet.). The value
of a trade secret is the kind of technical or specialized matter that “is nkot a matter of
common knowledge.” Arkoma Basin Expl. Co. v. FMF Assocs. C1990-A, Ltd., 249
S.W.3d 380, 388 (Tex. 2008). Accordingly, the property owner rule does not apply to
something as specialized and technical as the value of a triade secret. See Jatex Oil,
629 S.W.3d at 407 (property owner could not testify to value of mineral interest);
Accurate Precision, 2015 Tex. App. LEXIS 12034, at *9 (owner of business could not
testify to lost profits and revenues).
Moreover, the Court erred by allowilng Pohl to testify on the market value of
the trade secret because Pohl was onlyM designated to opine on “the reasonable value
of the [purported trade secrets] at the time it was [allegedly] converted and/or
misappropriated.”43 Pohl madie clear in his deposition that he was testifying about
“the intrinsic value of the [purportedly] stolen property,” claiming it was worth
“between” $250,000 aond $6 million.44 But the “the property owner's testimony must
be based on marklet value, not intrinsic value or some speculative value of the
property.” Accuirate Precision, 2015 Tex. App. LEXIS 12034, at *7. Because Pohl was
not designated to testify about the market value of the alleged trade secret, his
testimony should have been excluded.
43 Exhibit 8, Pohl’s Second Amended Expert Designations, at 7.
44 Exhibit 9, December 2021 Pohl Deposition, at 117.
37
XVI. Factually insufficient evidence supports the jury’s finding
that “the misappropriation of Pohl’s trade secret(s) by
Kassab was willful and malicious” (Question 8) based on
“clear and convincing evidence” (Question 17).
There was insufficient evidence to support the jury’s answer to Question 8,
which found that Kassab engaged in “willful and malicious” misapperopriation. For
the jury to reach that conclusion, it was required to find that Kassab’s
misappropriation “result[ed] from the conscious disregard of tthe rights of the owner
of the trade secret.”45 Ten of the jurors found that Kassab engaged in “willful and
malicious” misappropriation by “clear and convinceing evidence,” which the Court
defined to mean “the measure or degree of pruoof that produces a firm belief or
conviction of the truth of the allegations sought to be established.”46 In addition to
the nonunanimous finding being insuafficient to support an award of exemplary
damages,47 insufficient evidence supports a finding of clear and convincing evidence
of malice. e
To decide whether thefre is sufficient evidence supporting the jury's finding
that Kassab specifically intended to cause substantial injury or harm to Pohl, the
Court is required to “analyze the evidence supporting the malice of each defendant .
. . instead of groiup[ing] them together.” Horizon Health Corp. v. Acadia Healthcare
Co., 520 S.Wo.3d 848, 867 (Tex. 2017). Further, “evidence of the tort itself, with little
45 Verdict, Question 8.
46 Verdict, Question 17 and Certificate.
47 Kassab detailed in his objection to the judgment and Motion for Judgment Notwithstanding the
Verdict why Pohl is not, as a matter of law, entitled to exemplary damages.
38
more,” is insufficient to support a jury’s finding of malice in a theft of trade secrets
case. See id.; Safeshred, Inc. v. Martinez, 365 S.W.3d 655, 665 (Tex. 2012) (“Conduct
which was necessary merely for liability cannot serve as a basis for punitive
damages.”). k
The only evidence Pohl offered of Kassab’s alleged maliceC was: (1) Kassab’s
filing a grievance against Pohl and copying news outlets and the District Attorney
(because Pohl committed conduct that was criminal and a miatter of public concern);
and (2) testimony that lawyer files are generally confidential. But this evidence does
not prove that Kassab knew – at the time he received the information from Favre and
Precision– that the information was owned by Pohl (as opposed to Precision or the
clients) as his trade secret. l
Regarding the attorney-client cMontracts, Kassab testified that the information
is owned by the client, not the lawyer, and not confidential. And Kassab testified that
he saw documents certifying thiat the list of Pohl’s actual, potential or rejected clients
were owned by Precision, and that Favre made that same representation to him.
Moreover, there waso uncontroverted evidence that the information was freely
transferred to Favlre when he purchased Precision in May 2015 and disclosed to
various partiesi in the Mississippi litigation without a protective order or any stamp
of “confidential” or “trade secret.” Thus, insufficient evidence supported the jury’s
finding that Kassab consciously disregarded the rights of the owner of the trade secret
because the uncontroverted evidence established that Kassab believed the
information was never owned by Pohl and was in the public domain.
39
The evidence is further insufficient because Pohl “adduced no evidence that
[Kassab] caused [Pohl] an injury independent of and qualitatively different than the
misappropriation itself.” See Eagle Oil & Gas Co. v. Shale Expl., LLC, 549 S.W.3d
256, 285 (Tex. App.—Houston [1st Dist.] 2018, pet. dism'd). The ekvidence also
demonstrated that Kassab had an obligation to notify Pohl’s formCer clients and the
State Bar of Pohl’s unlawful conduct, and that Kassab had a right to represent Pohl’s
former clients in lawsuits and grievance proceedings againsit Pohl. “[L]egally justified
conduct” is “simply not probative to either establish a violation or malice.” Safeshred,
, 365 S.W.3d at 665. “[Kassab’s alleged] intentional misappropriation and misuse of
[Pohl’s] trade secrets is not legally sufficient evidence of malice.” See Eagle Oil, 549
S.W.3d at 285. “If it were, exemplary damlages would be recoverable as a matter of
course in every misappropriation casMe, rather than the exceptional case involving
egregious misconduct and injury.” Id.
XVII. Factually insuffiicient evidence supports the jury’s finding
of exemplary dfamages of $3 million.
Because the jury’s finding of actual malice was non-unanimous and supported
by insufficient evidence, no exemplary damages should have been awarded.
Moreover, becauise Pohl is not entitled to attorney’s fees as damages under TUTSA,
the actual looss should have been, at most, $250,000. TUTSA provides that “the fact
finder may award exemplary damages in an amount not exceeding twice any award”
permitted as damages for misappropriation. See TEX. CIV. PRAC. & REM. CODE §
134A.004. Therefore, the maximum exemplary damages can only be $500,000. See id.
But in addition to those limitations, the $3,000,000 exemplary damage finding is
40
supported by insufficient evidence.
The jury was instructed to consider various factors when awarding exemplary
damages as a “punishment,” none of which support the jury’s finding:
• The alleged harm to Pohl was economic rather than physical.
• Because the character of the conduct involved was primaCrily limited
to alleged misappropriation of information that Kassab testified did
not know belonged to Pohl, the degree of Kassaib’s culpability was
highly questionable.
• The situation does not offend the public sense of justice. To the
contrary, the evidence demonstrated that Kassab was promoting
justice by exposing Pohl’s unlawlful conduct to barratry victims and
the State Bar, which KassaMb had a legal obligation to do.
• No evidence was presented to the jury about Kassab’s net worth.
The jury’s award of puinitive damages was so against the great weight and
preponderance of the evidence as to be manifestly unjust. Rather than consider the
factors, the jury probaobly considered improper items of alleged damages in assessing
exemplary damagels, and inexplicably appealed to passion or prejudice rather than
reasonable judigment. Accordingly, a new trial or, alternatively, a remittitur of the
entire exemplary damage award, is appropriate.
XVIII. The Court erred in submitting the conspiracy claim
(Question 15) because that claim is pre-empted by TUTSA.
TUTSA provides that it “displaces conflicting tort, restitutionary, and other
law of this state providing civil remedies for misappropriation of a trade secret.” TEX.
41
CIV. PRAC. & REM. CODE §134A.007. A conspiracy claim is among the other civil
remedies for misappropriation of trade secrets that is preempted.
In Reynolds v. Sanchez Oil & Gas Corp., No. 01-18-00940-CV, 2023 Tex. App.
LEXIS 8903 (Tex. App.—Houston [1st Dist.] Nov. 30, 2023, no pet. h.)k, the plaintiff
sued for misappropriation of trade secrets and aiding and abetting Cbreach of fiduciary
duty. Id. at *7-8. The court of appeals concluded that the aiding and abetting claim
was “primarily based on the individual appellants’ misapproipriation of trade secrets”
and “provide[ed] remedies for the underlying misconduct of misappropriation of trade
secrets.” Id. at 47. “Under the plain language of TUTSA, these claims conflict with
civil remedies for misappropriation of a trade secret.” Id. at *47-48. Therefore,
“TUTSA preempts these claims to the extlent they are based on appellants’ alleged
misappropriation of trade secrets.” IdM. at *48.
Pohl’s conspiracy claim, like the aiding and abetting claim in Reynolds, is
based entirely on Kassab’s alleiged misappropriation of trade secrets. The conspiracy
question asked, “[r]egarding the conduct you found in answer to Question 2 [which
asked “[d]id any of theo parties listed below misappropriate Pohl’s trade secret?”], was
Kassab part of a clonspiracy that damaged Pohl with any of those named below?”48
Because Pohl’si conspiracy claim is “primarily based on” alleged misappropriation of
trade secrets, it is preempted. See Reynolds, 2023 Tex. App. LEXIS 3067, at *47-48;
see also VEST Safety Med. Servs., LLC v. Arbor Env't, LLC, No. 4:20-CV-0812, 2022
U.S. Dist. LEXIS 127285, at *10 (S.D. Tex. 2022) (“the weight of authority from
48 Verdict, Question 15.
42
district courts within the Fifth Circuit … [demonstrate a] conspiracy claim is
preempted by TUTSA.”).
Because the conspiracy claim was preempted, the Court should have dismissed
that claim on summary judgment and not have allowed Pohl to submkit that claim.
This error was harmful because it improperly allowed Pohl to confClate the conduct of
Kassab with other alleged co-conspirators so that the jury was required to speculate
whether Kassab directly or indirectly misappropriated any oif Pohl’s trade secrets and
whether Pohl proved the elements of misappropriation for each defendant.
XIX. The Court erred by denying Kassab’s designation of
responsible third parties, incluuding George W. Shepherd,
Donalda Pohl, Edgar Jaimes, Ken Talley and Magdalena
Santana.
A trial court is required to grant aleave to designate responsible third parties if
a motion is timely filed that pleads sufficient facts concerning the alleged
responsibility of the persons to ebe designated. See In re YRC Inc., 646 S.W.3d 805,
809 (Tex. 2022). Kassab timfely moved to designate George W. Shepherd, Donalda
Pohl, Edgar Jaimes, Ken Talley, and Magdalena Santana as responsible third parties
and pled sufficient facts demonstrating their responsibility. The Court’s denial of
Kassab’s motioni for leave was an abuse of discretion.
Kassoab alleged that Shepherd knew that Walker, Seymour and Ladner had
sold Precision to Favre, and in that sale transferred Precision’s assets to Favre,
including the information that Pohl claims are his trade secrets. Kassab also alleged
that Shepherd knew that Favre had given documents to third parties, including
Kassab and others, before settling the Mississippi litigation, but failed to protect Pohl
43
by ensuring that all proprietary information was gathered from all third parties and
returned to Pohl or destroyed as part of the any settlement agreement, if Pohl owned
and/or desired to safeguard that property.
Kassab alleged that if Donalda, Jaimes, Talley, or Santana had akn agreement
and/or duty to safeguard any property allegedly owned by Pohl, thCey are responsible
for failing to safeguard the property because they routinely placed Pohl’s alleged
trade secrets and documents in the public domain. Thiey did so by circulating
Precision’s marketing lists and other documents allegedly belonging to Pohl to
numerous third parties rather than safeguard these documents and lists.
The Court erred when it refused to grant Kassab’s motion for leave to designate
these individuals as responsible third partlies. “The erroneous denial of a motion for
leave to designate a responsible third Mparty skews the proceedings, potentially affects
the litigation's outcome, and compromises the defense in ways unlikely to be apparent
in the appellate record.” Sancihez v. Castillo, No. 05-18-01033-CV, 2020 Tex. App.
LEXIS 1867, at *15 (Tex. App.—Dallas Mar. 4, 2020, no pet.) (mem. op.). Therefore,
a new trial is warrantoed. See id.
XX. The Clourt erred by denying Kassab’s motion to abate this
casie pending resolution of the related litigation that is
ciurrently pending against Pohl for civil barratry.
The Court erroneously denied49 Kassab’s motion to abate this case pending
resolution of Cheatham v. Pohl, No. 01-20-00046-CV, 2022 Tex. App. LEXIS 6528
(Tex. App.—Houston [1st Dist.] Aug. 30, 2022, pet. filed) (mem. op.). That related
49 See September 23, 2022 Order Denying Motion to Abate.
44
litigation is currently pending against Pohl for civil barratry. The resolution of that
case would have a substantial impact on the claims in this case. In his motion to
abate, Kassab explained that abatement was appropriate for two reasons. First, the
outcome of Cheatham could alter the course of this litigation because ifk it resulted in
a judgment against Pohl for barratry, Pohl could not have argued thCat all the barratry
claims brought against him were frivolous. Second, Pohl sought from Kassab
damages in this case that included attorney’s fees fori defending against the
Cheatham case, which was still ongoing. But if Pohl had been found liable for barratry
in Cheatham, then he would have been required to pay attorney’s fees to the plaintiffs
in that case. The Court’s erroneous denial of the motion to abate was harmful because
it allowed Pohl to take the positions thatl he did, which substantially altered the
course of trial and the evidence preseMnted.
XXI. The Court erred by allowing Pohl to assert affirmative
claims against Keassab but then withhold relevant and
material inforimation based on purported claims of
privilege. f
The Court also erred when it denied Kassab’s motion to compel discovery from
Pohl based on the doctrine of offensive use (or, at minimum, conducting an in camera
review of the iniformation).50 On a related note, the Court erred when it overruled
Kassab’s obojection to Pohl’s calling of Shepherd and using redacted billing records at
trial.
Kassab’s motion to compel demonstrated that Pohl could not sue Kassab for
affirmative relief claiming Kassab stole his purported trade secrets and caused clients
50 November 28, 2022 Order Denying Motion to Compel.
45
to bring barratry claims against Pohl, while at the same time claiming privilege to
deny access to discovery that would be relevant to those claims. See Ginsberg v. Fifth
Court of Appeals, 686 S.W.2d 105, 108 (Tex. 1985).
Pohl cannot deny Kassab outcome determinative information thakt has bearing
on Pohl’s ability to recover, such as information that would demonCstrate that Pohl’s
claims are barred by limitations, illegality and the unlawful acts doctrine, or
demonstrate that Pohl is not the owner of the purported tradie secret information. See
id. at 106 (plaintiff could not assert privilege to protect against the disclosure of
information that was “materially relevant to, and possibly validated, the statute of
limitations defenses asserted by” the defendant). But that is exactly what Pohl did,
claiming privilege when Kassab sought thlis information from Pohl’s counsel in the
Mississippi litigation, Billy ShepherdM.
Pohl also cannot deny Kassab the proof underlying Pohl’s claim for
reimbursement of attorney’s feies incurred in previous litigation and require the jury
to simply trust that the attorney’s fees were actually incurred, reasonable and
necessary. See In re Noat'l Lloyds Ins. Co., 532 S.W.3d 794, 807 (Tex. 2017) (“party
may waive its workl-product privilege through offensive use—perhaps by relying on
its billing reciords … to recover its own attorney fees.”); In re Beirne, Maynard
& Parsons, L.L.P., 260 S.W.3d 229, 231 (Tex. App.—Texarkana 2008, no pet.)
(attorney “cannot deny [opposing] party the right to review documents supporting
[his or her] claim for reimbursement.”). But Pohl did that, refusing to produce
unredacted billing invoices.
46
Therefore, the Court should have ordered that Pohl produce complete un-
redacted versions of the invoices that Pohl claimed support his damages, along with
all underlying documentation, including communications and draft documents. The
Court also should have found that Pohl waived any privilege betwkeen him and
Shepard regarding: (1) when Pohl discovered any alleged misapproCpriation; (2) Pohl’s
efforts to keep the information secret; and (3) Pohl’s unlawful barratry. The Court’s
failure to do so was harmful because it erroneously excludeid information relevant to
Pohl’s ability to recover, such as information that would demonstrate that Pohl’s
claims are barred by limitations, illegality and the unlawful acts doctrine, or
demonstrate that Pohl is not the owner of the purported trade secret information.
The un-redacted billing records also mayl have demonstrated that the fees Pohl
sought were not reasonable or necessMary.
Because Pohl did not produce unredacted billing records, the Court should
have sustained Kassab’s objecition to Pohl’s billing record exhibits when Pohl offered
them trial. See Remington Arms Co. v. Caldwell, 850 S.W.2d 167, 170 (Tex. 1993)
(“the trial court has thoe power during trial to sanction nondisclosure of information”
by excluding it frolm being used). The Court also should not have allowed Shepherd
or Zavitsanos ito testify over Kassab’s objection. The Court’s action was harmful
because it allowed Pohl to use the unredacted billing records, which the jury
undoubtedly relied on when awarding Pohl attorney’s fees, and allowed Shepherd and
Zavitsanos to testify based on those records.
47
XXII. The Court erred by dismissing Kassab’s counterclaims for
civil barratry.
The Court erred when it granted Pohl’s traditional motion for summary
judgment on Kassab’s counterclaims for civil barratry t pursuant to Texas
Government Code § 82.0651. Pohl made four arguments in supporet of his motion,
none of which withstand scrutiny. 
First, Pohl sought to dismiss the counterclaims based otn res judicata. But that
doctrine does not apply if facts change and the relationship between the parties has
been altered. See Marino v. State Farm Fire & Cas. Iens. Co., 787 S.W.2d 948, 949-50
(Tex. 1990). That is what occurred here. Before thuere was a final judgment dismissing
the clients’ civil barratry claims based on limitations, Pohl sued Kassab arising from
the same transaction where the barratary occurred. That act allowed the clients to
assign the barratry claims to Kassab to be brought as counterclaims in this action,
thus allowing Section 16.069 of ethe Texas Civil Practice & Remedies Code to revive
the otherwise time-barred bafrratry claims. Because both the factual circumstances
and the relationship between the parties changed, res judicata did not apply.
Second, Pohl argued that the claims were barred by limitations. But
limitations is toilled on these claims pursuant to Section 16.069 because they arise
out of the soame transaction or occurrence that is the basis of Pohl’s action and were
filed within 30 days from the date on which Kassab was required to answer.
Third, Pohl argued that the clients’ assignments of barratry claims against him
are invalid, either as a matter of law or for purported non-compliance with the
Disciplinary Rules. Regardless, the law is clear that technical non-compliance with
48
the Disciplinary Rules is insufficient to void otherwise valid contracts like the
Assignments. Pohl’s policy arguments about why Section 16.069 should not apply
here fail.
Fourth, Pohl argued that the assignments are not invalid, violatek public policy,
and should not be enforced. As explained in Kassab’s motion, PohlC should have been
estopped from making this argument after he told other courts that the assignments
were valid. Regardless, the assignments were not invalid ais a matter of law because
a civil barratry claim is not a claim for legal malpractice or for violation of the
Deceptive Trade Practices Act, which are the only claims that cannot be assigned
under Texas law. The assignments do not violate the disciplinary rules but, even if
they did, Pohl has no standing to complain labout the violation, and Texas courts have
enforced agreements even if they contMravene the disciplinary rules.
The Court’s erroneous granting of Pohl’s motion constituted harmful error, not
only because it prevented Kaissab from pursuing those claims at trial, but also
because it impacted the evidence of barratry that Kassab could present and which
would have undoubtedoly changed the course of the trial proceedings, and it led to the
jury’s erroneous colnclusion that Pohl was not responsible for his damages.
XXIII. iInsufficient evidence supports the jury’s award of
oattorney’s fees because the testimony from Pohl’s expert
was conclusory and the invoices were heavily redacted.
Insufficient evidence supports the jury’s award of attorney’s fees because the
invoices that Pohl submitted were so heavily redacted that they amounted to no
evidence, and the testimony by Pohl’s purported attorney’s fee expert, Zavitsanos,
49
was conclusory.
“General, conclusory testimony devoid of any real substance will not support a
fee award.” Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 501
(Tex. 2019). Zavitsanos’ testimony with respect to the Arthur Andersenk51 factors was
insufficient and conclusory. Zavitsanos did not provide sufficient tCestimony as to the
time and labor required for the case, the novelty and difficulty of the questions
involved, or the skill required to perform the legal seirvice properly. Nor did
Zavitsanos provide sufficient testimony about the likelihood that the acceptance of
the employment precluded Pohl’s counsel from accepting other employment.
Zavitsanos also failed to provide sufficient testimony about the fee customarily
charged in the locality for similar legal serlvices, the time limitations imposed by the
client or by the circumstances, andM the nature and length of the professional
relationship with the client. Zavitsanos testified broadly about the experience,
reputation, and ability of thei Reynolds Frizzell law firm, but failed to do so with
respect to each of the lawyers and staff who billed the case. “[W]ithout evidence of
the factors identified ion Disciplinary Rule 1.04, the fact finder has no meaningful way
to determine if thel fees sought are in fact reasonable and necessary.” Rohrmoos, 578
51 Arthur UAndersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997) (identifying the factors
as “(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill
required to perform the legal service properly; (2) the likelihood . . . that the acceptance of the
particular employment will preclude other employment by the lawyer; (3) the fee customarily charged
in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time
limitations imposed by the client or by the circumstances; (6) the nature and length of the professional
relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers
performing the services; and (8) whether the fee is fixed or contingent on results obtained or
uncertainty of collection before the legal services have been rendered.”) (citing TEX. DISCIPLINARY R.
PROF. CONDUCT 1.04).
50
S.W.3d at 494.
The evidence on attorney’s fees is also insufficient because the billing invoices
submitted “are so heavily redacted, it is impossible to determine what tasks were
performed, when the tasks were performed, how long the tasks took tok perform, and
who performed the tasks.” THB Constr., LLC v. Holt Tex., Ltd., NoC. 05-20-00020-CV,
2022 Tex. App. LEXIS 277, at *7-8 (Tex. App.—Dallas Jan. 13, 2022, no pet. h.). Here
are a few examples: i
51
Although Zavitsanos testified regarding these invoices, she testified only about
general tasks peformed during the representaiton, and only summarily stated that
that the fees were necessary and reasonable factors. The redacted invoices provide no
additional evidence beyond Zavitsanos’ testimony due to the heavy redactions,
rendering the evidence insufficient to supyport the jury’s award. See THB Constr.,
2022 Tex. App. LEXIS 277, at *10-12 (“Haolt's heavily redacted invoices fail to identify
any work performed.”). f
Moreover, to show the reasonableness and necessity of attorney's fees, the
party seeking attorney's feOes must show the fees were incurred while suing the party
sought to be charged wipth the fees on a claim that allows recovery of the fees. Stewart
Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10 (Tex. 1991). In other words, Pohl is only
entitled to attocrney’s fees for his recoverable claim, which is the TUTSA claim. “[I]f
any attorney's fees relate solely to a claim for which such fees are unrecoverable, a
claimant must segregate recoverable from unrecoverable fees.” Tony Gullo Motors I,
L.P. v. Chapa, 212 S.W.3d 299, 313 (Tex. 2006). But here, the fee award includes
Pohl’s attorney’s fees relating to the entire case, including time incurred in relation
to the conversion claim, which is unrecoverable. “Although attorneys may testify that
52
a certain percentage of their time would have been necessary even in the absence of
the unrecoverable claim, general, conclusory testimony devoid of substance will not
support a fee award.” Desio v. Bosque, No. 05-21-00022-CV, 2022 Tex. App. LEXIS
1202, at *12 (Tex. App.—Dallas Feb. 18, 2022, no pet. h.) (mem. op.). Herke, Zavitsanos
made no attempt to explain how the discrete legal services advanceCd both recoverable
and unrecoverable claims. Because Zavitsanos’ testimony on this issue was non-
existent or conclusory, the jury’s findings were so againist the great weight and
preponderance of the evidence as to be clearly wrong and unjust.
There is also insufficient evidence to support the award of conditional appellate
fees. First, Zavitsonos was not qualified to opine on appellate fees because he did not
testify about any expertise in appellate feles. Second, the hypothetical nature of a
conditional appellate fees does not exMcuse a party from providing “opinion testimony
about the services it reasonably believes will be necessary to defend the appeal and a
reasonable hourly rate for thiose services.” Yowell v. Granite Operating Co., 620
S.W.3d 335, 354-55 (Tex. 2020). Here, Zavitsanos’ testimony about expected appellate
fees failed to comply woith this standard. Zavitsanos provided insufficient testimony
about the services lPohl’s counsel will provide to defend the appeal, or the reasonable
hourly rates fior those services. Rather, Zavitsanos provided conclusory testimony
about expected fees at the various levels of the appellate process, which is insufficient.
See KBIDC Invs., LLC v. Zuru Toys Inc., No. 05-19-00159-CV, 2020 Tex. App. LEXIS
8055, at *63-65 (Tex. App.—Dallas Oct. 9, 2020, pet. denied) (testimony that “a
reasonable fee for handling an appeal to the Dallas Court of Appeals is $30,000” and
53
“a reasonable fee for preparation of the—or responding to a petition for a request to
the Supreme Court to review an appellate court decision from the Court of Appeals
would be $10,000” was insufficient to support conditional appellate fee award);
Jimmie Luecke Children P'ship v. Droemer, No. 03-20-00096-CV, 20k22 Tex. App.
LEXIS 605, at *21 (Tex. App.—Austin Jan. 27, 2022, pet. denied) (Cmem. op.) (same).
CONCLUSION & PRAYER
For these reasons, Kassab asks the Court to grant thiis motion, vacate the final
judgment, and order a new trial.
ALEXANDER DUBOSE & JEFFERSON
/s/ Kevin Dubose
Kevin Dubose
kldubose@adjtlaw.com
aTexas State Bar No. 06150500
M1844 Harvard Street
 Houston, Texas 77008
Phone (713) 523-0667
e Facsimile (713) 522-4553
f FOGLER, BRAR, O’NEIL & GRAY, LLP
/s/ Murray Fogler
o Murray Fogler
mfogler@foglerbrar.com
l Texas State Bar No. 07207300
i 909 Fannin, Suite 1640
i Houston, Texas 77002
o (713) 481-1010
(713) 574-3224 (Fax)
THE KASSAB LAW FIRM
/s/ David Eric Kassab
Lance Christopher Kassab
Texas State Bar No. 00794070
David Eric Kassab
54
Texas State Bar No. 24071351
1214 Elgin Street
Houston, Texas 77004
Telephone: (713) 522-7400
E-service: eserve@kassab.law
ATTORNEYS FOR KASSAB DEFEN k DANTS
CERTIFICATE OF SERVICE t 
I certify that this document has been forwarded to all tparties pursuant to the
Texas Rules of Civil Procedure on January 19, 2024. i
/s/ David Eric Kassab
David eEric Kassab
55
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
David Kassab
Bar No. 24071351
david@kassab.law r
Envelope ID: 83597613
Filing Code Description: No Fee Documents
Filing Description: THE KASSAB DEFS MOTION FOR JUDGtMENT NOT
WITHSTANDING THE VERDICT AND TO DISREGARD JUiRY FINDINGS
Status as of 1/19/2024 3:37 PM CST s
Case Contacts 
Name BarNumber Email g TimestampSubmitted Status
Harris Wells hwells@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT
Todd Taylor ttaylor@jandflaw.com 1/19/2024 3:31:14 PM SENT
Scott M.Favre scott@favrepa.com 1/19/2024 3:31:14 PM SENT
Lawyer Wade lawayerwade@hotmail.com 1/19/2024 3:31:14 PM SENT
Chris C.Pappas cpappas@krcl.com 1/19/2024 3:31:14 PM SENT
Non-Party Witness Billy Shepherd bshepherd@spcounsel.com 1/19/2024 3:31:14 PM SENT
Non-Party Dona Pohl c DonaLyann@yahoo.com 1/19/2024 3:31:14 PM SENT
Non-Party Edgar Jaimes f edgarsroom@gmail.com 1/19/2024 3:31:14 PM SENT
Kevin Dubose 6150500 kdubose@adjtlaw.com 1/19/2024 3:31:14 PM SENT
Thallia Malespin tmalespin@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT
Misty Davis C mdavis@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT
Marisa Barrera Cruz Hurda 24041157 mhurd@adjtlaw.com 1/19/2024 3:31:14 PM SENT
Lance Kassab eserve@kassab.law 1/19/2024 3:31:14 PM SENT
Murray Fogler o mfogler@fbfog.com 1/19/2024 3:31:14 PM SENT
Murray JFogleUr mfogler@foglerbrar.com 1/19/2024 3:31:14 PM SENT
Andrew Johnson ajohnson@thompsoncoe.com 1/19/2024 3:31:14 PM SENT
Benjamin Ritz britz@thompsoncoe.com 1/19/2024 3:31:14 PM SENT
Dale Jefferson 10607900 jefferson@mdjwlaw.com 1/19/2024 3:31:14 PM SENT
Raul Herman Suazo 24003021 suazo@mdjwlaw.com 1/19/2024 3:31:14 PM SENT
Kevin Graham Cain 24012371 cain@mdjwlaw.com 1/19/2024 3:31:14 PM SENT
D Kassab david@kassab.law 1/19/2024 3:31:14 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 1/19/2024 3:31:14 PM SENT
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
David Kassab
Bar No. 24071351
david@kassab.law r
Envelope ID: 83597613
Filing Code Description: No Fee Documents
Filing Description: THE KASSAB DEFS MOTION FOR JUDGtMENT NOT
WITHSTANDING THE VERDICT AND TO DISREGARD JUiRY FINDINGS
Status as of 1/19/2024 3:37 PM CST s
Case Contacts 
Murray J. Fogler 7207300 mfogler@foglerbgrar.com 1/19/2024 3:31:14 PM SENT
L Kassab lance@kassab.law 1/19/2024 3:31:14 PM SENT
Kelly Skelton reception@kassab.law 1/19/2024 3:31:14 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 1/19/2024 3:31:14 PM SENT
Harris Wells hwaells@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT
David Kassab c david@kassab.law 1/19/2024 3:31:14 PM SENT
Jean C.Frizzell f jfrizzell@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT
Jean C.Frizzell  jfrizzell@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT
Todd Taylor ttaylor@jandflaw.com 1/19/2024 3:31:14 PM SENT"
64,2023-12-22,ORD,Court,"FINAL JUDGMENT: $6,310,039.34","Final Judgment entered by the 281st District Court, Harris County, Texas, awarding Pohl and LOMAP $6,310,039.34 against Kassab and LCKPC jointly and severally, including $1,453,040 in actual damages, $1,232,013 in trial attorneys' fees, $3,000,000 in exemplary damages, $624,986.34 in prejudgment interest, conditional appellate attorneys' fees escalating total to $6,685,039.34 if proceedings go through Supreme Court of Texas oral argument, and postjudgment interest at 8.5% compounded annually. Incorporates full jury charge and verdict as Exhibit 1.","Final judgment signed December 22, 2023 by Judge Christine Weems of the 281st District Court, Harris County, Texas, resolving all claims in Cause No. 2018-58419. The court granted Pohl's Motion for Entry of Final Judgment after considering the motion, responses, replies, other briefing, arguments of counsel, and the pleadings. Trial commenced August 21, 2023; jury rendered verdict August 31, 2023.",JDGMT-1,$6.3M JUDGMENT,Phase 5,2023-12-22_ORD_Final-Judgment_SIGNED.pdf,,"‘nity BD
Slater eieee
DEC 22 2023 «= Pas?
- CAUSE NO. 2018-58419 Time:_____2 A oe VIONEX
By pare AA- DC
MICHAEL A. POHL AND LAW OFFICE OF § IN THE DISTRICT COURS@F UC ~aTFex
MICHAEL A. POHL, PLLC, § 9A
Plaintiffs, §
§
§ @
| § HARRIS COUNTY, TEXAS
LANCE CHRISTOPHER KASSAB and § ~~ Pg: 3 q
LANCE CHRISTOPHER KASSAB, P.C. d/b/a § 6 Re
THE KASSAB LAW FIRM § SN
Defendants. § 281ST JUDICIAL DISTRICT
FINAL JUDGMENT : :
1. On August 21, 2023, this case was called to trial? Plaintiff Michael Pohl (“Pohi’’)
. and the Law Office of Michael A. Pohl, PLLC CLOMAR*pppere in person and through their -
Q)
attorneys and announced ready for trial. Detnda Lac Christopher Kassab (“Kassab”) and
Lance Christopher Kassab, P.C. d/b/a The Kassib La Firm (“LCKPC”) appeared in person and
(
O,
through their attorneys and announced ready fri The Court determined that it had jurisdiction
over the subject matter of this lawsuitGnd the parties to this lawsuit. Thereafter, the Court
instructed, empaneled, and an which heard the evidence and arguments of counsel.
The Court submitted instructidas) efinitions, and questions to the jury, and in response, the jury
‘made findings that this Cassie filed, and entered of record. Counsel for Pohl and LOMAP
orally moved for Bee Court to accept the jury’s verdict, which the Court granted on the record.
. (
2. The instructions, definitions, and questions submitted to the jury, and the jury’s
uwS - .
findings, are atached to this Final Judgment as Exhibit 1 and are incorporated into this Final
Judgment, >
3. Prior to trial, Pohl and LOMAP settled with certain former defendants to this
lawsuit for payments to Pohl and LOMAP that total $765,000.00 in the aggregate (the “Settlement
Credit”).
. . a
EXHIBIT B oe
RECORDER'S MEMORANDUM
| This instrument is of poor quality \
{ at the time of imaging ‘

4, Pohl and LOMAP have filed a motion for judgment on the jury’s verdict (the
“Motion”), which the Court has carefully considered and grants after considering the Motion, any
‘ response to the Motion, any reply to the response to the Motion, any other briefing, any arguments
of counsel, and the pleadings. The Court ORDERS, ADJUDGES, and DECREES that final
@)
judgment is rendered in favor of Poh! and LOMAP, and against Kassab and LEKPC, as set forth
herein. 9, &y
S
5. The Court ORDERS, ADJUDGES, and DECREES ee
a) Pohl and LOMAP have and recover from Kasey and LCKPC, jointly
and severally, damages in the amount of)$1,453,040.00, which
represents the sum of the jury’s answers Question Nos. 7(1)(a)
through 7(1)(f) and Question Nos. 7(2) arough 7(3), less the Settlement
Credit; and
b) Pohl and LOMAP have and reco 2. Kassab and LCKPC, jointly
and severally, damages in the amounts of:
SS
i) $1,232,013.00 for. eys’ fees incurred by Pohl and
LOMAP for entation through trial and the
completion ofproceedings in the trial court in this
lawsuit; plus ©
iti) $175,0 0 tor attorneys’ fees to be incurred by Pohl
and P for representation through an appeal(s) to
the Cc} tt of Appeals, if Pohl and/or LOMAP are
S sful in that appeal(s) or are successful in
uent proceedings before the Supreme Court of
6 ; plus
tis $55,000.00 for attorneys” fees to be incurred by Pohl and
LO LOMAP for representation at the petition for review
; Ae) stage in the Supreme Court of Texas, if Pohl and/or
& LOMAP are successful in proceedings before the
© Supreme Court of Texas; plus
S
iv) $85,000.00 for attorneys’ fees to be incurred by Pohl and
- LOMAP for representation at the merits briefing stage in
the Supreme Court of Texas, if Pohl and/or LOMAP are
successful in proceedings before the Supreme Court of
Texas; plus
2
EXHIBIT B

v) $60,000.00 for attorneys’ fees to be incurred by Pohl and
LOMAP for representation through oral argument and
completion of proceedings in the Supreme Court of
Texas, if Pohl and/or LOMAP are successful in
proceedings before the Supreme Court of Texas.
6. The Court finds that the jury unanimously answered “Yes” to Questia Nos. 2 and
@)
17, and unanimously answered “$3,000,000” to Question No. 19; therefore, the Cour additionally
ORDERS, ADJUDGES, and DECREES that Pohl and LOMAP have an ever from Kassab
and LCKPC, jointly and severally, exemplary damages in the amount of $3,000,000.00
7. The Court additionally ORDERS, ADJUDGES, and DECREES that Pohl and
LOMAP have and recover from Kassab and LEKPC, jit at severly, prejudgment interest
\
computed simply at the annual rate of 8.5% on sass ug commencing on the date that this
lawsuit was filed (August 28, 2018) and through the@ay before the date this Court renders Final
Judgment. As of the hearing date of September (0:2023—caleltng interest through September
©
18, 2023, as it is the date prior to the catia aden may be entered—prejudgment interest
totals $624,986.34. For each day that passes after September 19, 2023, until the Court enters this
@
Final Judgment, Pohl and LOMAR ee entitled to an additional $338.38 in prejudgment interest.
8. Thus, the Courk ORDERS, ADJUDGES, and DECREES that the total amount of
money that Pohl and LosiaP shall have and recover from Kassab and LCKPC, jointly and
severally, cclusve of pest judgment interest and costs of Court, is:
a) 36310,039.34 if no appeals are taken;
SS
b) 96.48, 039.34 if an appeal is taken to the court of appeals, and Pohl and/or
& LOMAP are successful in that appeal or are successful in subsequent
S proceedings before the Supreme Court of Texas;
c) $6,540,039.34 ifa petition for review is filed in the Supreme Court of Texas,
and Pohl and/or LOMAP are successful in proceedings before the Supreme
Court of Texas;
3
EXHIBIT B

d) $6,625,039.34 ifa petition for review is filed in the Supreme Court of Texas
and the Supreme Court orders merits briefing, and Pohl and/or LOMAP are
successful in proceedings before the Supreme Court of Texas; and
e) $6,685,039.34 if a petition for review is filed in the Supreme Court of Texas
~ and the Supreme Court orders oral argument, if Pohl and/or LOMAP are
successful in proceedings before the Supreme Court of Texas. NS
9. The Court additionally ORDERS, ADJUDGES, and DECREES hat:
a) Pohl and LOMAP have and recover from Kassab and LCKPC, jointly and
severally, post-judgment interest compounded annually at fieate of 8.5%
on $6,310,039.34, commencing on the date that this.Final Judgment is
rendered and ending on the date that this Final Judgment is satisfied; and
b) Pohl and LOMAP have and recover from Kas LCKPC, jointly and
severally, additional post-judgment interest c unded annually at the
rate of 8.5% on the awards of conditional ap Ilate attomeys’ fees contained
in paragraphs 4(b)(ii) through 4(b)(v) of hs al Judgment, commencing
on the date the awards are made final by th appropriate appellate court’s
judgment and ending on the date that {Rus inal Judgment is satisfied.
10. The Court additionally ORDERS) ADIUDGES, and DECREES that Kassab and
O,
LCKPC take nothing from Pohl and LOMAP and that all costs of Court are taxed against Kassab
and LCKPC. S
11. The Court neg ORDERS ADJUDGES, and DECREES that all writs and
processes for enforcement, execution, and collection of this Final Judgment shall issue.
12. Finally, the Goi ORDERS, ADJUDGES, and DECREES that all relief sought by
©
any of the parties in this lawsuit that is not expressly granted in this Final Judgment is denied; that
aN
this Final Judgement disposes of all claims, causes of action, and theories of liability by and
iS
between all pats and that this Final Judgment is appealable.
4
EXHIBIT B

Signed this day of ', 2023.
Signed: [ bstMpule

12/22/202

Honorable Christine Weems

Judge, 281* District Court NS

S&
OY
APPROVED AND ENTRY REQUESTED By: eS
REYNOLDS FRIZZELL LLP S
By: _/s/Jean C. Frizzell &
Jean C. Frizzell @
State Bar No. 07484650 SO)
1100 Louisiana St., Suite 3500 S
Houston, Texas 77002
Tel. 713.485.7200
Fax 713.485.7250 <
jfrizzell@reynoldsfrizzell.com . WS |
Attorney for Plaintiffs Michael Pohl Ci
and Law Office of Michael A. Pohl, PL
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5
EXHIBIT B

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, CAUSE NO. 2018-58419 OR
MICHAEL A. POHL and LAW 8 IN THE DISTRICT COURT OF
OFFICE OF MICHAEL A. POHL, §
me FELED | |

Plants mien Paar y
aaa HARRIS counry, TEXAS
v. AUG 81,2023 G
LANCE CHRISTOPHER KASSAB Perret = 4 &
and LANCE CHRISTOPHER — By__{ SAMIR) &
KASSAB, P.C. d/b/a THE KASSAB g Bd fey q ) Re
LAW FIRM 8 O5-31-XS 0)
Defendants § es) JUDICIAL DISTRICT
CHARGE OF THE COU xt
MEMBERS OF THE JURY: Se
g)

' After the closing arguments, you will go to tee jury room to decide the case, answer the
questions that are attached, and reach a verdict. aa nay discuss the case with other jurors only
©

when you are all together in the jury non
Remember my previous instrudfions: Do not discuss the case with anyone else, either
@) .
in person or by any other mong not do any independent investigation about the case or
conduct any research. Do not look up any words in dictionaries or on the Internet. Do not post
; information about the cts Internet. Do not share any special knowledge or experiences
with the other jurors Do not use your phone or any other electronic device during your delib-
(
erations for any reason I will give you a number where others may contact you in case of an
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emergency, ; ,
Any) notes you have taken are for your own personal use. You may take your notes back
into the jury room and consult them during deliberations, but do not show or read your notes to
your fellow jurors during your deliberations. Your notes are not evidence. Each of you should rely
on your independent recollection of the evidence and not be influenced by the fact that another
1 RECORDER'S MEMORANDUM
. This instrument is of poor quality
EXHIBIT B at the time of imaging.

juror has or has not taken notes.

You must leave your notes with the bailiff when you are not deliberating. The bailiff will
give your notes to me promptly after collecting them from you. I will make sure your notes are
kept in a safe, secure location and not disclosed to anyone. After you complete your deliberations,
the bailiff will-collect your notes. When you are released from jury duty, the i i promptly
destroy your notes so that nobody can read what you wrote. &

Here are the instructions for answering the questions. S&

1, Do not let bias, prejudice, or sympathy play ay at in your decision or your
evaluation of the evidence admitted or testimony heard in sce As we discussed in jury
selection, everyone, including me, has feelings, ci eon fears, and stereotypes
that we may not be aware of but that can affect wit and hear, how we remember what we
see and hear, and how we make decisions. pedi you are making important decisions as the
jurors in this case, you must evaluate the evidence carefully, and you must not jump to conclusions

. based on personal likes or sistikes, QSnealizations, gut feelings, prejudices, sympathies,
stereotypes, or biases. Our eset is counting on you to render a just verdict based on
the evidence, not on biases. O

2. Base your per only on the evidence admitted in court and on the law that is in
these instructions wun Do not consider or discuss any evidence that was not admitted in
the courtroom. RO,

©

3. iy ou are to make up your own minds about the facts. You are the sole judges of the
credibility of the witnesses and the weight to give their testimony. But on matters of law, you must
follow all of my instructions. |

4, If my instructions use a word in a way that is different from its ordinary meaning,
use the meaning I give you, which will be a proper legal definition.

p 2
EXHIBIT B

5. All the questions and answers are important. No one should say that any question
or answer is not important.

6. Answer ""yes"" or ""no"" to all questions unless you are told otherwise. A ""yes"" answer
must be based on a preponderance of the evidence unless you are told otherwise. Whenever a
question requires an answer other than ""yes"" or ""no,"" your answer must bet based on a
preponderance of the evidence. & .

The term ""preponderance of the evidence"" means the greater wight of credible evidence
presented in this case. If you do not find that a preponderance othe cidee supports a ""yes"" .
answer, then answer ""no."" A preponderance of the eine measured by the number of
witnesses or by the number of documents admitted nec For a fact to be proved by a ;
preponderance of the evidence, you must find that is more likely true than not true. |

A fact may be established by direct wid or by circumstantial evidence or both. A
fact is established by direct evidence nies Sve by documentary evidence or by witnesses
who saw the act done or heard the wortdoten A fact is established by circumstantial evidence
when it may be fairly and reson inte from other facts proved. .

7. Do not decide Gay) you think should win before you answer the questions andthen
just answer the cut to match your decision. Answer each question carefully without
considering who wl wi Do not discuss or consider the effect your answers will have.

8 Bo no answer questions by drawing straws or by any method of chance.

9. © Some questions might ask you for a dollar amount. Do not agree in advance to
decide on a dollee amount by adding up each juror's amount and then figuring the average.

10. Do not trade your answers. For example, do not say, ""I will answer this question
your way if you answer another question my way.""

3
EXHIBIT B

11. | Unless otherwise instructed, the answers to the questions must be based on the
decision of at least ten of the twelve jurors. The same ten jurors must agree on every answer. Do
not agree to be bound by a vote of anything less than ten jurors, even if it would be a majority.

As I have said before, if you do not follow these instructions, you will be guilty of juror

@
misconduct, and I might have to order a new trial and start this process over again, This would
waste your time and the parties’ money, and would require the taper fis county to pay

, for another trial. If a juror breaks any of these rules, tell that person t6 stop and report it to me
| Z
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4
EXHIBIT B .

DEFINITIONS

1. “Pohl” means Michael Pohl and Law Office of Michael A. Pohl, PLLC.
2. “Kassab” means Lance Christopher Kassab and Lance Christopher Kassab, P.C.

d/b/a the Kassab Law Firm. Lo.

. 3. “Nicholson” means Tina Nicholson and Baker Nicholson, LLP ae Baker
Nicholson Law Firm.
. 4, “Favre” means Scott Favre and Scott M. Favre PA, LLC. . & ;
SS

5. “Montague” means Doug Montague and Montague, Pitan. & Varnado, P.A.
6. “Precision Marketing Group, LLC” means Scott <2. Kirk Ladner and Steve

Seymour prior to May 12, 2015 and Scott Favre lay 12, 2015.

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5
EXHIBIT B

t
QUESTION NO. 1

Did Pohl own a trade secret in any of the information, contracts, compilation(s) or list(s)
listed below?

“Trade secret” means all forms and types of information, e.g., business, scientific,
technical, economic, or engineering, and any formula, design, prototypes. pattern, plan,
compilation, program device, program, code, device, method, technique, process, procedure,
financial data, or list of actual or potential customers or suppliers that— &

1. Derives independent economic value, actual or potential; s not being generally
known to, and not being readily ascertainable by pro eans by, other persons
who can obtain economic value from its disclosure 0; ; and

2. Is the subject of reasonable measures by the wise under the circumstances to
maintain its secrecy. &

“Proper means” are discovery by independent sree or any other means that is not

improper.

, “Improper means” include theft; bribery; misrepresentation; breach or inducement of a
breach of a duty to maintain secrecy, to limit ie, or to prohibit discovery of a trade secret; or
espionage through electronic or other means

“Own” means to have rightful, lea or equitable title to, or the right to enforce rights in,
a trade secret.

Q@® . :

Answer ""Yes"" or ""No"" foreach of the following.

a) Attorney client fed eohtracts between Pohl and his clients.

b) Any ist ofthe identities and contact information of Pohl’s actual, potential or rejected

clients);
AS)
Answer: LS
oe
6 ;
EXHIBIT B

If you have answered ""Yes"" to any part of Question No. 1, then answer the following

question. Otherwise, do not answer the following Question.
QUESTION NO. 2
ae

Did any of the parties listed below misappropriate Pohl’s trade secret? NZ)

To find misappropriation of a trade secret, you must find that they ry

a) Acquired the trade secret, and that the party knew or had reason to know that

the trade secret was acquired by improper means; or °@

b) Disclosed or used the trade secret without Pohl’s e: Q implied consent,
and thatthe party used improper means to acquire knowledge of the trade secret;
"" o

c) Disclosed or used the trade secret without Pobil’s express or implied consent,
and that the party, at the time of the disclose or use, knew or had reason to

know that his or her knowledge of the oan was derived from or through
a person who had used improper means.to, ire it; or
NN .

d) Disclosed or used the trade sec: seithout Pobl’s express or implied consent,
and that the party, at the time disclosure or use, knew or had reason to
know that his or her knowledge of the trade secret was acquired under
circumstances giving rise to @ duty to maintain its secrecy or limit its use; or

@

e) Disclosed or used trade secret with Pohl’s express or implied consent, and
that the party, at th of the disclosure or use, knew or had reason to know
that his or her knowledge of the trade secret was derived from or through a
person who owede duty to Poh] to maintain its secrecy of limits its use.

“Improper men theft; bribery; misrepresentation; breach or inducement of a
breach of a duty to in secrecy, to limit use, or to prohibit discovery of a trade secret; or
espionage through electronic or other means.

~~

“U ofthe trade secret means commercial use by which the offending party seeks to

profit from of the secret.
Ase “Yes” or “No” for each item listed below that you answered “Yes” to in Question
No. 1: ON
a) Attorney client fee contracts between Pohl and his clients.
. . 2. Favre Ues
7
EXHIBIT B

3. Precision Marketing Group, LLC s| Vi) ' |
4. Nicholson Ues
5. Montague Wes Ne
b) Any list of the identities and contact information of Pohl’s actual, pote or rejected
clients. . ©
1. Kassab ; L [és &
2. Favre &S
3. Precision Marketing Group, LLC
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4. Nicholson Mes
5. Montague el = U 4.5
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EXHIBIT B

QUESTION NO. 3
Did the wrongful conduct of Pohl, if any, contribute to the injury, if any, found by
the jury?
ee
Answer “Yes” or “No”. oy
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EXHIBIT B

If you have answered ""Yes"" to Question No. 2 for more than one of those named below,
then answer the following question. Otherwise, do not answer the following Question.
Assign percentages of responsibility only to those you found caused or contributed to cause
the injury or occurrence. The percentages you find must total 100 percent. The percentages must
be expressed in whole numbers. The percentage of responsibility attributable to e is not
necessarily measured by the number of acts or omissions found. The percentage utable to
any one need not be the same percentage attributed to that one in answering mother question
oO
UESTION NO. 4 eS
What percentage of the fault that caused the injury do you ened be attributable to each
of those listed below and found by you in your answers to QuestioaNo, 2 to have been at fault?
oS
2. Favre Ss 10
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3. Precision Marketing Group ELC O
4. Nicholson S / D
5. Montague 5 S / 0 ,
6. Pohl & O
S& Total 100 %
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EXHIBIT B

If you have answered ""Yes"" to any part of Question No. 2 as to Kassab for any part, then
answer the following question. Otherwise, do not answer the following Question.
QUESTION NO. 5
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By what date should Pohl, in the exercise of reasonable diligence, have discovered the
acquisition, use or disclosure of his trade secrets by Kassab? Bw
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Answer: J &
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EXHIBIT B

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If you have answered ""Yes"" to any part of Question No. 2 as to Kassab, then answer the

following question. Otherwise, do not answer the following Question.
QUESTION NO. 6
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Did Kassab acquire or use Pohl’s trade secret while in an attorney clef 9 ationship and
attempting to provide legal services in that relationship involving the unique-of ce, professional
skill, training and authority of an attorney? AS)

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Answer: 0 & ~
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EXHIBIT B

If you have answered ""Yes"" to any part of Question No. 2 for any party, then answer the
following question. Otherwise, do not answer the following Question.
QUESTION NO. 7 Ne
What sum of money, if paid now in cash, would fairly and reasonably co e Pohl for
his damages, if any, proximately caused by the conduct you found in response estion No. 2?
“Proximate cause” means a cause that was a substantial factor in bing about an event,
and without which cause such event would not have occurred. In orden. t6.t @ proximate cause,
the act or omission complained of must be such that a person using the@egree of care required of
him would have foreseen that the event, or some similar event, mi nably result therefrom.
There may be more than one proximate cause of an event. S
In answering questions about damages, answer each quia separately. Do not increase or
reduce the amount in one answer because of your answer to ther question about damages. Do
not reduce the amount of damages based on any responsibility you found in answer to
the immediately preceding question. Do not speculate about what any party’s ultimate recovery may .
or may not be. Any recovery will be determined by the gout When i applies the law to your answers
at the time of judgment. Do not add any amount RR on damages, if any.
; SS
Consider the following elements of. damages, if any, and none other. Do not award any
sum of money on any element if you have eiberis, under some other element in this question,
awarded a sum of money for the same loss. is, do not compensate twice for the same loss, if
any. ©
Answer separately in ager cents for damages, if any.
1. The reasonable an necessary attorney’s fees, expenses, and costs that Pohl has
incurred in connection with the following lawsuits, appeals, and grievances that
Kassab fled agin Pohl.
. ©
a. Brumfield y. Pohl lawsuit and appeals.
, (Answer: $ ax ,43L
§
“Sb Gandy v. Pohl lawsuit and appeals.
& Answer: & Bu, 344
Sy c. Cheatham, ¢é Reese v. Pohl lawsuit and appeals.
d. Berry v. Pohl lawsuit.
Answer: ¢ $84,445
e. Kassab gow grievance.
13
EXHIBIT B

f. Reese v. Pohl grievance.
2. 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 Kassab’s use of the tage srarett.

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3. The value of the development costs that Kassab avoided by misappropriating

Pohl’s trade secret(s). 5 fo
Answer: 4 369,000 _ xs

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EXHIBIT B

; If you answered “Yes” to any part of Question No. 2 with respect to Kassab, then answer the
following question. Otherwise, do not answer the following question. a
, QUESTION NO. 8
Do you find that the misappropriation of Pohl’s trade secret(s) by Kassab vw and
malicious misappropriation? ) '
“Willful and malicious misappropriation” means intentional misappropriation resulting
from the conscious disregard of the rights of the owner of the trade secre
Answer “Yes” or “No.” 7 SS ,
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| EXHIBIT B

If you answered “Yes” to Question No. 8, then answer the following question. Otherwise,
do not answer the following question.
QUESTION NO. 9
What is a reasonable fee for the necessary services of Pohl’s attorneys in isles stated
in dollars and cents? )
A reasonable fee is the reasonable hours worked, and to be worked, multiplied by a
reasonable hourly rate for that work. &
Factors to consider in determining a reasonable fee ncude=
e the time and labor required; @
e the novelty and difficulty of the questions involved
e the skill required to perform the legal servic (properly;
e the fee customarily charged in the ocality frst legal services;
e the amount involved;
e the experience, reputation, and ability.o the lawyer or lawyers performing the
services; . “
e whether the fee is fixed or contingent n results obtained;
e. the uncertainty of collection the legal services have been rendered; and
e - results obtained. we
Answer with amounts in dollarsaiid cents for each of the following: .
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1. For representation throng fl and the completion of proceedings in the trial court.
Answer: a | } 45a, O14
2. For representation thbugh appeal to the court of appeals.
Answer: Si ""1S , 060
3. For repreentation at the petition for review stage in the Supreme Court of Texas.
SS
4. For representation at the merits briefing stage in the Supreme Court of Texas.
Rs
Answer: “35,000
5. For representation through oral argument and the completion of proceedings in the
Supreme Court of Texas. ,
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Answer: (0, O60
16
EXHIBIT B

If you answered “No” to all parts of Question No. 2, then answer the following question.
Otherwise, do not answer the following question.
QUESTION NO. 10
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Did any of those named below convert Pohl’s property? oy
Those named below converted Pohl’s property if any of them exercised dominion and
control over Pohl’s property without Pohl’s consent and to the exclusion of Pohl’s right of
possession and use. 5 @
Answer “Yes” or “No” for each of those named below.
2. Favre &
3. Precision Marketing Group, LLC =
4, Nicholson ~
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5. Montague ~\
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EXHIBIT B

If you have answered ""Yes"" to Question No. 10 for more than one of those named below,
then answer the following question. Otherwise, do not answer the following Question.

Assign percentages of responsibility only to those you found caused or contributed to cause
the injury or occurrence. The percentages you find must total 100 percent. The percentages must
be expressed in whole numbers. The percentage of responsibility attributable to any, one is not
necessarily measured by the number of acts or omissions found. The percentage attributable to

; any one need not be the same percentage attributed to that one in answering meetiestion
QUESTION NO. 11 Oe
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What percentage of the fault that caused the injury do you fd to be attributable to
each of those listed below and found by you in your answers to Qyestion No.J to have
been at fault? S 10

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Answer:

1. Kassab Go
2. Favre ~ es

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; 3. Precision Marketing Crop
4. Nicholson © |
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5. Montague & rs
6. Pohl O Se
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EXHIBIT B

If you have answered ""Yes"" to Question No. 10 for Kassab, then answer the following
question. Otherwise, do not answer the following Question.
| QUESTION NO. 12
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By what date did Pohl discover or in the exercise of reasonable diligence should have
discovered the conversion by Kassab you found in response to Question Nor
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EXHIBIT B

If you have answered ""Yes"" to Question No. 10 for Kassab, then answer the following

question. Otherwise, do not answer the following Question.
. QUESTION NO. 13

Did Kassab convert Pohl’s property while in an attorney client relationshi i wtempting
to provide legal services in that relationship involving the unique office, professional ski, training
and authority of an attorney? Bw

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EXHIBIT B

If you have answered ""Yes"" to Question No. 10 for any party, then answer the following
question. Otherwise, do not answer the following Question.
: QUESTION NO. 14 sk
What sum of money, if paid now in cash, would fairly and reasonably co: te Pohl for
his damages, if any, proximately caused by the conduct you found in response ion No. 10?
“Proximate cause” means a cause that was a substantial factor in bringitig about an event,
and without which cause such event would not have occurred. In order be a proximate cause,
the act or omission complained of must be such that a person using the of care required of
him would have foreseen that the event, or some similar event, might reasonably result therefrom.
There may be more than one proximate cause of an event. a
In answering questions about damages, answer each quai separately. Do not increase or
reduce the amount in one answer because of your answer to ther question about damages. Do
. not reduce the amount of damages based on any pe: responsibility you found in answer to
the immediately preceding question. Do not sn sb wh any party’s ultimate recovery may
or may not be. Any recovery will be determined by when it applies the law to your answers
at the time of judgment. Do not add any amount on damages, if any.
‘ S
Consider the following elements of damages, if any, and none other. Do not award any
sum of money on any element if you have iherwise, under some other element in this question,
awarded a sum of money for the same logs. is, do not compensate twice for the same loss, if
any. ©
Answer separately in.do ad cents for damages, if any.
1. The price tha avi ing buyer and a willing seller would have agreed on, at the
time of the eenyerstion; as a fair price for Kassab’s use of the property.
Answer: & i
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21
EXHIBIT B

If you answered “Yes” to any part of Question No. 2 for Kassab, then answer the following °
question. Otherwise, do not answer the following question.
QUESTION NO. 15
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Regarding the conduct you found in answer to Question No. 2, was Kab part of a
conspiracy that damaged Pohl with any of those named below? w
To be part of a conspiracy, Kassab on the one hand and one or ote-of the following on
the other hand must have had knowledge of, agreed to, and intended to! isappropriate Pohl’s trade
secret(s) that resulted in the damages to Pohl. One or more perso olved in the conspiracy
must have performed some act or acts to further the conspiracy.
®
Answer “Yes” or “No” for each of the following persops aid entity. ‘
1. Favre. ©
2. Nicholson. S\
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Answer:
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4. Precision Mar g Group, LLC
Answer: 0
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22
EXHIBIT B

If you answered “Yes” to Question No. 10 for Kassab, then answer the following question.

Otherwise, do not answer the following question.
QUESTION NO. 16
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Regarding the conduct you found in answer to Question No. 10, wag Kassab part of a
conspiracy that damaged Pohl with any of those named below? wi

To be part of a conspiracy, Kassab on the one hand and one or diet the following on
the other hand must have had knowledge of, agreed to, and intended to soaver Pohl’s property
that resulted in the damages to Pohl. One or more persons involveg in) e conspiracy must have
performed some act or acts to further the conspiracy. e

Answer “Yes” or “No” for each of the following persons and entity.

. 1. Favre. ©
; Answer:
2. Nicholson. ~
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Answer: ~\
3. Montague. ©
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4. Precision Matt Group, LLC
Answer:
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23 .
EXHIBIT B

If you unanimously answered “Yes” to any part of Question No. 2 with respect to Kassab.
Otherwise, do not answer the following question.

To answer “Yes” to any part of the following question, your answer must be unanimous.
You may answer “No” to any part of the following question only upon a vote of ten or more jurors.
Otherwise, you must not answer that part of the following question. ;

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QUESTION NO. 17 G
2

Do you find by clear and convincing evidence that the misappropriation of trade secret was
willful and malicious? 6 @

“Clear and convincing evidence” means the measure or d ste of proof that produces a
firm belief or conviction of the truth of the allegations sought to bees tablished.

- “Willful and malicious misappropriation” means i tesional misappropriation resulting
from the conscious disregard of the rights of the owner ofthe trade secret.
Answer “Yes” or “No.”
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24
. EXHIBIT B .

If you unanimously answered “Yes” to Question No. 10 with respect to Kassab, any part

of Question No. 15, or any part of Question No.16, then answer the following question as to each
. such part. Otherwise, do not answer the following question. ‘

To answer “Yes” to any part of the following question, your answer must be unanimous.
You may answer “No” to any part of the following question only upon a vote of ten or more jurors.
Otherwise, you must not answer that part of the following question. xe .

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QUESTION NO. 18 OL
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Do you find by clear and convincing evidence that the harm to Pohl resulted from malice
of Kassab? &y

“Clear and convincing evidence” means the measure 0 of proof that produces a
firm belief or conviction of the truth of the allegations sues established.

‘Malice” means a specific intent by either Kassab to cause substantial injury or harm to
Pohl.

Answer “Yes” or “No.” <

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25
EXHIBIT B

Answer the following question only if you unanimously answered “Yes” to Question No. 17
or Question No. 18. Otherwise, do not answer the following question.
You must unanimously agree on the amount of any award of exemplary damages.
QUESTION NO. 19
vs
What sum of money, if any, if paid now in cash, should be assessed ssn ths named
below, and awarded to Pohl as exemplary damages, if any, for the conductor found in
response to Question Nos. 2, 10, 15 and/or 16? °O
S
“Exemplary damages” means an amount that you may in your discretion award as a penalty
or by way of punishment. &y
Factors to consider in awarding exemplary damages, if any, dre
1. The nature of the wrong. &
_ 2. The character of the conduct involved.
3. The degree of culpability of those identified teow.
SS
4, The situation and sensibilities of <e concerned.
5. The extent to which such conduct of ds a public sense of justice and propriety.
© .
' 6. The net worth of those identified below. ,
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Answer in dollars ental if any.
; 1. For conduct Sqn in response to Question No. 2:
Anawer 2, 000,000 ;
2. ForRenduet found in response to Question No. 10:
° LO
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3 © For conduct found in response to Question No. 15:
S Answer:
4. For conduct found in response to Question No. 16:
Answer:
26
EXHIBIT B

If you answered “No” to Question No. 2 as to Kassab for both parts then answer the
. following question. Otherwise, do not answer the following question:
QUESTION NO. 20
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Was Pohl’s claim for misappropriation made in bad faith? NG
Bad faith means the conscious doing of a wrong for dishonest, sscrinjgatoy, or malicious
Oses. . °
purp &
Answer “yes” or “no.” 6 @
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27
EXHIBIT B

4
If you answered “Yes” to Question No. vd then answer the following question. Otherwise,
do not answer the following question: ;
QUESTION NO. 21
What is a reasonable fee for the necessary legal services of Kassab Homey for
defending against Pohl’s claims? ©
A reasonable fee is the reasonable hours worked, and to be worked, ulti plied by a
reasonable hourly rate for that work. S
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Answer with an amount in dollars and cents for each of the following:
1. For representation in the trial court. &
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Answer: Ke)
2. For representation in the court of appeals. .
Answer: S
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3. For representation at the petition oer stage in the Supreme Court of Texas.
Answer: KR
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4. For representation at the Ce briefing stage in the Supreme Court of Texas.
5. For representatio. ugh oral argument and the completion of proceedings in the
Supreme Court of. .
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28
EXHIBIT B

PRESIDING JUROR

1. When you go into the jury room to answer the questions, the first thing you will
need to do is choose a presiding juror.

2. ‘The presiding juror has these duties: xk

a. have the complete charge read aloud if it will be helpful to you deliberations;
b. preside over your deliberations, meaning manage the dscusions and see that
you follow these instructions; oG
XS
c. give written questions or comments to the bailiff-who will give them to the
judge; ©)
d. write down the answers you agree on; &
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e. get the signatures for the verdict certificate; and
£ notify the bailiff that you have rack a verdict
; Do you understand the duties of the presiding juror? If you do not, please tell me now.
: THE
INSTRUCTIO R SIG CT CERTIFICA

1. _ Unless otherwise instructéd, you may answer the questions on a vote of ten jurors.
The same ten jurors must agree on every answer in the charge. This means you may not have one
group of ten jurors agree on one mee a different group of ten jurors agree on another answer.

2. If ten jurors seston cv answer, those ten jurors sign the verdict.

If eleven JUEQIS agree on every answer, those eleven jurors sign the verdict.
If all ot you agree on every answer, you are unanimous and only the
presiding juror signs erdict.
IN

3. rs should deliberate on every question. You may end up with all twelve of
you agreein e answers, while only ten or eleven of you agree on other answers. But when
you sign thes ict, only those ten who agree on every answer will sign the verdict.

s There are some special instructions before Question No. 17, 18 and 19 explaining
how to those questions. Please follow the instructions. If all twelve (12) of you answer
those questions, you will need to complete a second verdict certificate for-those questions

29
EXHIBIT B

Do you understand these instructions? If you do not, please tell me now.
Signed this inp of August, 2023.
: GJUD
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30
EXHIBIT B

VERDICT CERTIFICATE

We, the jury, have answered the above and foregoing questions as herein indicated, and
herewith return same into court as our verdict.
Check one: Ne

Our verdict is unanimous. All twelve of us have agreed to each and over answer.

The presiding juror has signed the certificate for all twelve of us. ©
- . KR
Signature of Presiding Juror Printed Name of Presiding Juror ;
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Our verdict is not unanimous. Q

Eleven of us have agreed to each and every answer and have bigned the certificate below.

Our verdict is not unanimous. SO)

. Ten of us have agreed to each and every anid have signed the certificate below.
Si wane Printed
L Lf Solum Sc Lenni fey Linceless
2 $e _ Boke kaotielpeter
3. ~ Cre my) OWN ¢ 4
4 _ (ead _ Celeste SoutoS
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31
EXHIBIT B

If you have unanimously answered Questions No. 2, 10, 15, 16, 17, 18 and/or 19 then you
must sign this certificate also.
ADDITIONAL CERTIFICATE
I certify that the jury was unanimous in answering the Question No. 2. All twe eof us agreed
ey Tey 2. The presiding juror has signed the certificate fo Ive of us.
Signafure of Presiding Juror Printed Name of g Juror
I certify that the jury was unanimous in answering the Quen No 10. All twelve of us
agreed to the answer to Question No. 10. The presiding juror has signe e certificate for all twelve
of us. eS
@
; Signature of Presiding Juror Pine Nea e of Presiding Juror
ei thatthe jury was unanimous in answering the Question No. 15. Al twelve of ws
agreed to the answer to Question No. 15. The resis pjuror has signed the certificate for all twelve
of us.
Ww
Signature of Presiding Juror & Printed Name of Presiding Juror
I certify that the jury was imous in answering the Question No. 16. All twelve of us
agreed to the answer to Question’ « 16. The presiding juror has signed the certificate for all twelve
of us. LS
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Signature of Presiding JUGS ‘Printed Name of Presiding Juror
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I certify that the jury was unanimous in answering the Question No. 17. All twelve of us
agreed to the answer Question No. 17. The presiding juror has signed the certificate for all twelve :
of us. se
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Si iding Juror Printed Name of Presiding Juror
Quay that the jury was unanimous in answering the Question No. 18. All twelve of us
agreed to the answer to Question No. 18. The presiding juror has signed the certificate for all twelve
of us. ,
Signature of Presiding Juror Printed Name of Presiding Juror
32
EXHIBIT B

' I certify that the jury was unanimous in answering the Question No. 19. All twelve of us
agreed to the to Question No. 19. The presiding juror has signed the certificate for all twelve
. i e of Presiding Juror Printed Name of Presiding Juror
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EXHIBIT B"
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"
61,2023-09-20,LTR,Kassab,Letter to judge re final judgment,"Kassab's letter brief to Judge Christine Weems responding to Pohl's Reply filed the night before the hearing on entry of final judgment, addressing new arguments on exemplary damages, attorneys' fees, TUTSA preemption of conspiracy, and Precision's exoneration","Post-hearing letter brief filed September 20, 2023 in the 281st Judicial District Court, Harris County, Cause No. 2018-58419. Addressed to Judge Christine Weems. Pohl's Reply was filed well after working hours the evening of September 18, 2023 — the night before the September 19, 2023 hearing on entry of final judgment. This letter responds to new arguments and authorities raised in that Reply. Written by Kevin Dubose (Alexander Dubose & Jefferson LLP, Board Certified Civil Appellate Law).",JDGMT-1,N/A,Phase 5,2023-09-20_LTR_Kassab-Letter-to-Judge-re-Final-Judgment_FILED.pdf,That the Court refrain from signing Pohl's proposed final judgment and sustain Kassab's objections,"9/20/2023 3:18 PM
Kevin Dubose Marilyn Burgess - D18is4tr4ic Ht aCrlvearkr dH Satrrreise Ct ounty
kdubose@ adjtlaw.com Houston, TEenxvaes lo7p7e0 0N8o-.4 7394726 5300
By: Bonnie Lugo
(713) 523-0667 www.adjtlaw.com
Filed: 9/20/2023 3:18 PM
Board Certified Civil
Appellate Law
September 20, 2023
The Honorable Christine Weems
Judge 281st District Court
201 Caroline, 14th Floor
Houston, Texas 77002
Re: Cause No. 2018-58419; Michael A. Pohl, and Law Otffice of Michael A.
Pohl, PLLC v. Lance Christopher Kassab and Lanrcie Christopher Kassab,
P.C. D/B/A The Kassab Law Firm s
Dear Judge Weems: s
Pohl’s response to Kassab’s objections to the gproposed judgment were filed well
after working hours the night before the hearing orn entry of judgment. Because that
response raised some new arguments and authoriBties that Kassab has not had a chance to
address, we file the following letter brief to addnress some of those new matters.
A. Exemplary damages are not rercoverable because Question 17 was not
answered unanimously. M
Pohl relies on several cases noot previously addressed, and all are distinguishable for
important reasons. e
• Bruce v. Oscar Renda Cofntracting, 657 S.W.3d 453, 464 (Tex. App.—El Paso 2022, pet.
filed). In Bruce there was no Additional Certificate in which the jury was instructed to
certify whether certain jury questions were unanimous. Id. at 463. In the present case, there
was an Additionaol Certificate in which the jury failed to certify that Question 17 was
unanimous. C
• Stover v. ADM Milling Co., No. 05-17-00778-CV, 2018 Tex. App. LEXIS 10883 (Tex.
App.—Dallas Dec. 28, 2018, pet. denied) (mem. op.). In Stover there was an Additional
Certificfate, and the jury certified that the predicate question for exemplary damages
(Qunestions 15 and 16 on fraud and malice) were answered unanimously. Id. at *12. In the
prUesent case, the equivalent predicate question (Question 17 on willful and malicious
misappropriation) was not certified as unanimous.
• Bryan v. Papalia, 542 S.W.3d 676, 692–93 (Tex. App.—Houston [14th Dist.] 2017, rev.
granted, judgm’t vacated w.r.m.). In Bryan the trial court noticed an ambiguity between
the requirement that two questions be answered unanimously and the Verdict Certificate
generally stating that only ten jurors had agreed to all of the questions. It appears from the
opinion that the judge noticed this ambiguity, discussed the situation with the lawyers, and
September 20, 2023
Page 2
decided to instruct the jurors to return to the jury room and deliberate further. But there is
nothing in the opinion suggesting that the party who did not have the burden of obtaining
a unanimous verdict to obtain exemplary damages was required to object or ask that the
jury be sent back to deliberate further in order to preserve error.
The case most analogous to the present case is Redwine v. Peckinpaeugh, 535 S.W.3d
44 (Tex. App.—Tyler 2017, no pet.). Pohl erroneously attempts to dCistinguish Redwine
because it “dealt with a single cause of action giving rise to liability, [so] the certification
of non-unanimity was in conflict with an award of exemplary damages.”1 But the same is
true in this case, where the jury was asked to answer questions relatting to the single TUTSA
cause of action. Just like in Redwine, the jury’s failure to certifyi that the predicate question
of liability (Question 17) was unanimous bars the recovery of exemplary damages.
Pohl also suggests it was Kassab’s burden to eraise the issue.2 But as noted in
Redwine, “this situation does not amount to a conflicting jury finding, where a party must
object before the jury is discharged to preserve error.” Id. at 52. Rather, that burden was on
Pohl as the party with the burden of proof seeking exemplary damages. See United
Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 481 (Tex. 2017) (“A defendant has no
obligation to complain about a plaintiff's omi lission of an independent theory of recovery;
rather, the burden to secure proper findinags to support that theory of recovery is on the
plaintiff, and a plaintiff who fails to satisfy that burden waives that claim.”). See also TEX.
CIV. PRAC. & REM. CODE § 41.003(b
) f(""The claimant must prove by clear and convincing
evidence the elements of exemplary damages . . . . This burden of proof may not be
shifted to the defendant . . . ."" c(emphasis added)). Kassab was not required “to ask the
trial court to fix an error that wfould, as here, ultimately result in a judgment in its favor.”
Id. at 481.
B. Attorney’s fees in other litigation are not recoverable as actual
damagCes under TUTSA.
Pohl argues that attorney’s fees incurred in satellite litigation are recoverable “actual
losses” under TUTSA because the statute permits a “flexible and imaginative approach” to
damages.3 Buft when the Court asked Pohl if any court in any jurisdiction had ever been
flexible annd imaginative enough to award attorney’s fees in other litigation as actual
damages for a trade secret claim, the silence was telling, and should resolve this issue.
1 Reply, at 6.
2 Reply, at 7.
3 Reply, at 9.
September 20, 2023
Page 3
Pohl cites two out-of-state cases to argue that actual damages under TUTSA is not
limited to things like loss of profits, lost customers or lost market share.4 But both of those
cases authorize recovery of lost profits, fees, or commissions. See Dunsmore & Assocs. v.
D'Alessio, 409906, 2000 Conn. Super. LEXIS 114, at *36 (Super. Ct. 2000) (“the issue is
whether the defendant used the plaintiff's documents to make candidate placements that
resulted in the defendant's receipt of fees or commissions.”); World Wide Prosthetic Supply
v. Mikulsky, 640 N.W.2d 764, 770 (Wis. 2002) (concluding “actual loss” “may include lost
profits resulting from [competitor’s] manufacture and distribution otf a defective product
incorporating [plaintiff’s] trade secret”). i
Pohl argues that Texas permits the recovery of attorDney’s fees incurred in other
litigation as actual damages, relying on Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l
Dev. & Research Corp., 299 S.W.3d 106 (Tex. 2009).5 Tshat case concluded “the general
rule as to recovery of attorney's fees from an adversge party in litigation does not bar a
malpractice plaintiff from claiming damages in a mralpractice case for fees it paid its
attorneys in the underlying suit.” Id. at 119. But PBohl is not a “malpractice plaintiff,” and
is not seeking fees paid to remedy malpractice committed by Kassab in an underlying suit.
Rather, Pohl is suing Kassab to recover attorneyy’s fees that Pohl incurred defending against
barratry claims and grievances brought br iy Pohl’s former clients, who initiated the
proceedings after Kassab alerted them to Pohl’s barratry. The “malpractice plaintiff”
exception stated in Akin does not apply.
Pohl also seeks an equitablee remedy based on the tort-of-another doctrine, which
Kassab has previously briefed. Pohl does not deny that the jury found in Question 3 that
Pohl’s wrongful conduct contrfibuted to the injury. Pohl points to Question 4, in which the
jury failed to assign any percentage of responsibility to Pohl. But the issue here is not
related to causation of damages in this case. The point is simply that one without clean
hands cannot obtain ano equitable remedy, and one found to have engaged in “wrongful
conduct” does not have clean hands. See Frazier v. Havens, 102 S.W.3d 406, 414 (Tex.
App.—Houston [14lth Dist.] 2003, no pet.) (“one who seeks an equitable remedy must do
equity and comei to court with clean hands.”) Pohl cannot claim the equitable tort-of-
another exceptfiion.
4 Reply, at 10.
5 Reply, at 9.
September 20, 2023
Page 4
C. Conspiracy is preempted by TUTSA.
Pohl asserts that no Texas case law supports the proposition that conspiracy is
preempted by TUTSA. Yet the First Court of Appeals recently considered this issue and
found that TUTSA preempts a similar theory of joint liability.
In Reynolds v. Sanchez Oil & Gas Corp., No. 01-18-00940-CV, 2023 Tex. App.
LEXIS 3067 (Tex. App.—Houston [1st Dist.] May 9, 2023, no pet. th.), the plaintiff sued
for misappropriation of trade secrets and aiding and abetting breacih of fiduciary duty. Id.
at *7-8. The court of appeals concluded that the aiding and abestting claim was “primarily
based on the individual appellants’ misappropriation of tradDe secrets” and “provide[ed]
remedies for the underlying misconduct of misappropriation of trade secrets.” Id. at 47.
“Under the plain language of TUTSA, these claims csonflict with civil remedies for
misappropriation of a trade secret.” Id. Therefore, “TUgTSA preempts these claims to the
extent they are based on appellants' alleged misapprorpriation of trade secrets.” Id. at *48.
Pohl’s conspiracy claim, like the aiding and abetting claim in Reynolds, is based
entirely on Kassab’s alleged misappropriatioyn of trade secrets. The conspiracy question
asked, “[r]egarding the conduct you found inr ianswer to Question No. 2 [which asked “[d]id
any of the parties listed below misappropriate Pohl’s trade secret?”], was Kassab part of a
conspiracy that damaged Pohl with any of those named below?”6 Because Pohl’s
conspiracy claim is based on alleged omisappropriation of trade secrets, it is preempted. See
Reynolds, 2023 Tex. App. LEXIS e3067, at *47-48.
D. The jury’s findifng of no liability on Precision means no liability
on Kassab.
Pohl contends thoat Kassab waived his right to object to any alleged inconsistency in
the jury’s finding t C hat Precision was not liable for misappropriation.7 But as Pohl
acknowledges, “thelre is nothing inconsistent” about the jury’s findings.8 Rather, the issue
is whether Pohl cian legally recover against Kassab after the jury concluded that Precision,
and those assof iciated with Precision, did not misappropriate anything — meaning that
Precision eitoher owed no duty to Pohl or it breached no duty to Pohl when it provided Pohl's
alleged information to Kassab. If there was no misappropriation when the information
passed from Pohl to precision, then no one else downstream in the chain of possession
could have misappropriated the information from Pohl. Thus, the jury’s exoneration of
6 Motion, at Exhibit A, Question No. 15.
7 Reply, at 15.
8 Reply, at 16.
September 20, 2023
Page 5
Precision precludes liability against Kassab as a matter of law. Kassab was not required to
object and have the jury reconsider the issue to potentially “forfeit a winning hand.” Levine,
537 S.W.3d at 481 (a plaintiff has the burden to secure proper findings to support its theory
of recovery, not the defendant).
Respectfully submitted,
/s/Kevin Dubose t
Kevin Dubose i
kdubose@adjtlaw.scom
State Bar No. 06D150500
1844 Harvards Street
Houston, Texas 77008
Telephonge: (713) 523-2358
Facsimilre: (713) 522-4553
Mnurray Fogler
Sytate Bar No. 07207300
rmfogler@foglerbrar.com
MFOGLER BRAR O’NEIL & GRAY LLP
909 Fannin, Suite 1640
o Houston, Texas 77002
e Telephone: (713) 481-1010
Facsimile: (713) 574-3224
Lance Kassab
State Bar No. 00794070
o David Kassab
State Bar No. 24071351
l THE KASSAB LAW FIRM
i 1214 Elgin Street
f i Houston, Texas 77004
o Telephone: (713) 522-7400
eserve@kassab.law
Attorneys for Kassab Defendants
September 20, 2023
Page 6
CERTIFICATE OF SERVICE
On September 20, 2023, I electronically filed this Reply to Pohl’s Response to
Objections to Judgment Letter Brief with the Clerk of Court using the eFile.TXCourts.gov
electronic filing system which will send notification of such filing to the following:
Jean C. Frizzell
jfrizzell@reynoldsfrizzell.com
REYNOLDS FRIZZELL LLP r i
1100 Louisiana St., Suite 3500 s
Houston, Texas 77002 D
/s/Kevin Dubose
Kevin gDubose
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
David Kassab
Bar No. 24071351
david@kassab.law r
Envelope ID: 79765300
Filing Code Description: No Fee Documents
Filing Description: 9.20.2023-Ltr to Judge Weems in Responste to
Objections to Judgment Letter Brief i
Status as of 9/20/2023 3:59 PM CST s
Case Contacts 
Name BarNumber Email g TimestampSubmitted Status
Todd Taylor ttaylor@jandflaw.com 9/20/2023 3:18:40 PM SENT
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 9/20/2023 3:18:40 PM SENT
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 9/20/2023 3:18:40 PM SENT
Harris Wells hwaells@reynoldsfrizzell.com 9/20/2023 3:18:40 PM SENT
Todd Taylor ttaylor@jandflaw.com 9/20/2023 3:18:40 PM SENT
Scott M.Favre scott@favrepa.com 9/20/2023 3:18:40 PM SENT
Lawyer Wade c lawyerwade@hotmail.com 9/20/2023 3:18:40 PM SENT
Chris C.Pappas f cpappas@krcl.com 9/20/2023 3:18:40 PM SENT
Non-Party Witness Billy Shepherd  bshepherd@spcounsel.com 9/20/2023 3:18:40 PM SENT
Non-Party Dona Pohl DonaLyann@yahoo.com 9/20/2023 3:18:40 PM SENT
Non-Party Edgar Jaimes C edgarsroom@gmail.com 9/20/2023 3:18:40 PM SENT
Kevin Dubose a 6150500 kdubose@adjtlaw.com 9/20/2023 3:18:40 PM SENT
Marisa Barrera Cruz Hurd 24041157 mhurd@adjtlaw.com 9/20/2023 3:18:40 PM SENT
Lance Kassab o lance@kassab.law 9/20/2023 3:18:40 PM SENT
David KassabU david@kassab.law 9/20/2023 3:18:40 PM SENT
Nicholas Pierce nicholas@kassab.law 9/20/2023 3:18:40 PM SENT
Lance Kassab eserve@kassab.law 9/20/2023 3:18:40 PM SENT
Andrea Mendez andrea@kassab.law 9/20/2023 3:18:40 PM SENT
Murray JFogler mfogler@foglerbrar.com 9/20/2023 3:18:40 PM SENT
Murray Fogler mfogler@fbfog.com 9/20/2023 3:18:40 PM SENT
Andrew Johnson ajohnson@thompsoncoe.com 9/20/2023 3:18:40 PM SENT
Benjamin Ritz britz@thompsoncoe.com 9/20/2023 3:18:40 PM SENT
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
David Kassab
Bar No. 24071351
david@kassab.law r
Envelope ID: 79765300
Filing Code Description: No Fee Documents
Filing Description: 9.20.2023-Ltr to Judge Weems in Responste to
Objections to Judgment Letter Brief i
Status as of 9/20/2023 3:59 PM CST s
Case Contacts 
Dale Jefferson 10607900 jefferson@mdjwlgaw.com 9/20/2023 3:18:40 PM SENT
Raul Herman Suazo 24003021 suazo@mdjwlaw.com 9/20/2023 3:18:40 PM SENT
Kevin Graham Cain 24012371 cain@mdjwlaw.com 9/20/2023 3:18:40 PM SENT
D Kassab david@kassab.law 9/20/2023 3:18:40 PM SENT
Murray J. Fogler 7207300 mfaogler@foglerbrar.com 9/20/2023 3:18:40 PM SENT
Thallia Malespin tmalespin@reynoldsfrizzell.com 9/20/2023 3:18:40 PM SENT
Misty Davis mdavis@reynoldsfrizzell.com 9/20/2023 3:18:40 PM SENT
Harris Wells c hwells@reynoldsfrizzell.com 9/20/2023 3:18:40 PM SENT
L Kassab f lance@kassab.law 9/20/2023 3:18:40 PM SENT
Kelly Skelton  reception@kassab.law 9/20/2023 3:18:40 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 9/20/2023 3:18:40 PM SENT
Harris Wells C hwells@reynoldsfrizzell.com 9/20/2023 3:18:40 PM SENT
Harris Wells a hwells@reynoldsfrizzell.com 9/20/2023 3:18:40 PM SENT"
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
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
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Suni Blue on behalf of Jean Frizzell
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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
Non-Party Witness Billy Shepherd bshepherd@spcounsel.com 9/18/2023 8:21:13 PM SENT
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
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
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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
Misty Davis mdavis@reynoldsfrizzell.com 9/18/2023 8:21:13 PM SENT
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"
59,2023-09-15,OBJ,Kassab,Objection to proposed final judgment,"Kassab's Objections to Pohl's Proposed Final Judgment, challenging exemplary damages, recoverability of attorneys' fees as actual damages, double recovery of unjust enrichment and market value, joint and several liability based on conspiracy, and indirect misappropriation theory","Filed September 15, 2023 in the 281st Judicial District Court, Harris County, Cause No. 2018-58419. Filed 10 days after Pohl's Motion for Entry of Final Judgment, objecting to specific elements of the proposed judgment while reserving right to file subsequent motions challenging jury findings on other grounds. New appellate counsel Kevin Dubose (Alexander Dubose & Jefferson LLP) appears for Kassab.",JDGMT-1,N/A,Phase 5,2023-09-15_OBJ_Kassab-Objection-to-Pohl-Proposed-Final-Judgment_FILED.pdf,"That the Court refrain from signing Pohl's proposed final judgment and exclude: (1) exemplary damages ($3,000,000) due to non-unanimous Q17 finding, (2) attorneys' fees from barratry cases and grievances as actual damages, (3) one of the duplicative damage measures ($250,000 market value or $200,000 development costs), (4) joint and several liability based on conspiracy, and (5) all damages given Precision's exoneration breaking the indirect misappropriation chain","9/15/2023 1:38 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 79605741
By: Patricia Gonzalez
Filed: 9/15/2023 1:38 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et al § IN THE DISTRICT COURT
V. § OF HARRIS COUNTY, TEXAS
§ k
§ e
SCOTT FAVRE, et al § 281st JUDICCIAL DISTRICT
KASSAB’S OBJECTIONS TO
POHL’S PROPOSED FINAL JUDGMEtNT
Lance Christopher Kassab and Lance Christopher Kassab, P.C. d/b/a The
Kassab Law Firm (“Kassab”) file these Objection teo the proposed Final Judgment
submitted by Plaintiffs Michael Pohl and uLaw Office of Michael A. Pohl
PLLC’(“Pohl”).
INTRODUCTIOaN AND OVERVIEW
Kassab will file subsequent motions challenging the jury findings against him
on various grounds. But this filineg will be limited to objecting to elements of recovery
in Pohl’s proposed judgmenft that are legally insupportable, even with these jury
findings. Specifically:
• The judgment should not include exemplary damages because one of the
predicate ifindings for exemplary damages was not answered by the jury
unanoimously.
• The judgment should not include as actual damages attorney’s fees incurred
by Pohl in actions against him by former clients and rejected potential clients
who were victims of Pohl’s barratry. Attorney’s fees are not an element of
recoverable damages under TUTSA.
• The judgment should not include actual damages for both unjust enrichment
of Kassab and the fair market value of the alleged trade secret misappropriated
from Pohl because they are two impermissibly overlapping versions of the same
loss. Pohl should have to elect one of those remedies rather than being awarded
a double recovery. C
• The judgment should not include joint and several liabili i ty under a conspiracy
theory because conspiracy is pre-empted under TUTiSA or subject to Chapter
33’s proportionate responsibility scheme.
• The judgment should not include any actual damages for theft of trade secrets
because of the jury’s findings that Precision did not misappropriate trade
secrets. Because Kassab acquired Plohl’s alleged trade secrets from Precision,
and the jury found that PrecMision acquired the information lawfully, then
Kassab could not have misappropriated trade secrets from Pohl.
i ARGUMENT
I. The judgment should not include exemplary damages because
the predicate question to reach the exemplary damages
question was onot answered unanimously.
Question 19l was the only question in the jury charge that asked about
exemplary damiages. The predicate instruction for Question 19 said, “Answer the
following question only if you unanimously answered ‘Yes’ to Question No. 17 or
Question No. 18. Otherwise, do not answer the following question.”1
The jury did not answer Question 18.
1 Motion, Exhibit A, at Question 19.
Some members of the jury answered Question 17 ‘Yes,” finding that the
misappropriation of trade secrets was willful and malicious.2 But the answer to
Question 17 was not unanimous — contrary to Pohl’s erroneous and false assertion
that “the jury unanimously found that the misappropriation of Pohl’s ktrade secrets
by Kassab was willful and malicious.”3 C
The certificate at the end of the jury verdict makes it unmistakably clear that
the answer to Question 17 was not unanimous. First, in thie general part of the jury
certificate the jury declined to check the box indicating that “Our verdict is
unanimous,” but instead checked the box indicating that ten jurors agreed to every
answer:
The additional certificate requcired the jury to indicate whether certain liability and
damages questions were answered unanimously:
In respoUnse to that instruction, the presiding juror signed certificates indicating that
Questions 2 and 19 were unanimous. But the presiding juror conspicuously did not
2 Motion, Exhibit A, at Question 17.
3 Motion, at 3.
sign the certificate for Question 17:
Thus, the jury’s answer to Question 17 was unmistakably not iunanimous.
The jury’s failure to answer Question 17 unanimouDsliy precludes any award of
exemplary damages by both rule and statute. See TEXs. R. CIV. P. 292 (“A verdict may
be rendered awarding exemplary damages only ifr the jury was unanimous in finding
liability for and the amount of exemplary d
amages.”) (emphasis added); TEX. CIV.
PRAC. & REM. CODE § 41.003(d) (“Exempl
alry damages may be awarded only if the
jury was unanimous in regard to finding liability for and the amount of exemplary
damages.”) (emphasis added).
Texas cases have not heisitated to apply this principle articulated in both rule
and statute. See Redwine v. Peckinpaugh, 535 S.W.3d 44, 52 (Tex. App.—Tyler 2017,
no pet.) (concluding o“that the trial court erred in entering judgment awarding
exemplary damaagles” when “[d]espite [the jury] having answered the exemplary
damages quesftiion, which was predicated on its unanimously having found that [the
defendant] made multiple defamatory statements, the jury stated in the charge that
its verdict was not unanimous.”); DeAtley v. Rodriguez, 246 S.W.3d 848, 850 (Tex.
App.—Dallas 2008, no pet.) (trial court did not err in reforming a judgment where
Rule 292 required a unanimous jury finding both liability for and the amount of
exemplary damages; a non-unanimous verdict on liability was insufficient as a matter
of law to support an award of exemplary damages).
Because the predicate finding of malicious misappropriation was the only way
to get to exemplary damages, and that question was not answered unaknimously, the
judgment cannot include exemplary damages. C
II. The judgment should not include attorney’s fees incurred in
Pohl barratry cases and grievance procedures betcause they are
not recoverable under TUTSA or the Disciplinairy Rules.
A. Attorney’s fees incurred in Pohl’s barratry cases and
grievances are not recoverable undeer TUTSA.
Attorney’s fees incurred by Pohl in defenuding barratry suits and grievances
filed by his former clients and rejected potential clients are not recoverable under
TUTSA. TUTSA provides recovery for a“actual loss[es] caused by misappropriation”
and unjust enrichment. TEX. CIV. PRAC. & REM. CODE § 134A.004. The act does not
define that term, and no Texase case has attempted a definition. However, the act
requires it to “be applied anfd construed to effectuate its general purpose to make
uniform the law with respect to the subject of this chapter among states enacting it.”
TEX. CIV. PRAC. & REM. CODE § 134A.008. Thus, the Court must look to and be guided
by decisions fromi other states that have adopted the Uniform Trade Secrets Act. See
Morgan v. Colements Fluids S. Tex., Ltd., 589 S.W.3d 177, 191 n.4 (Tex. App.—Tyler
2018, no pet.) (looking to Florida law when interpreting TUTSA because “[t]he Florida
Uniform Trade Secrets Act is very similar to the TUTSA”).
Courts in other jurisdictions “have made clear that ‘actual loss’ means ‘loss of
profits, lost customers or lost market share.’” K3 Enter., Inc. v. Sasowski, No. 20-
24441-CIV-CAN, 2022 U.S. Dist. LEXIS 234206, at *10 (S.D. Fla. 2022) (concluding
reputational damage was not an “actual loss” under Florida’s Uniform Trade Secrets
Act) (citing Fin. Info. Techs., LLC v. iControl Sys., USA, LLC, 21 F.4th 1267, 1276
(11th Cir. 2021) (understanding “actual loss” in terms of lost profits); Skelectica, Inc.
v. Novatus, Inc., No. 6:13-cv-1708-Orl-40TBS, 2015 U.S. Dist. LECXIS 191940, at *9
(M.D. Fla. 2015) (“‘Actual loss’ has been defined as ‘loss of profits, lost customers or
lost market share.’”). In a case construing the Idaho Uniforim Trade Secrets Act, the
Idaho Supreme Court held that actual loss means “lost profits, lost customers, lost
market share, and similar losses,” but specifically held that “it would be an anomaly
for us to allow attorney fees to be recovered in a case like this as part of damages.”
GME, Inc. v. Carter, 917 P.2d 754, 757 (Idalho 1996). Thus, attorney’s fees that Pohl
incurred defending the barratry claimMs and grievances brought against him are not
actual losses recoverable under the statute.
This conclusion is consiistent with Texas trade secret law before TUTSA. The
Supreme Court of Texas defined recoverable losses for a trade secret claim as “the
value of the plaintiff’so lost profits, the defendant’s actual profits from the use of the
secret, the value al reasonably prudent investor would have paid for the trade secret,
the developmient costs the defendant avoided by the misappropriation, and a
reasonable royalty.” Sw. Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 710–11
(Tex. 2016); see also Carbo Ceramics, Inc. v. Keefe, 166 F. App'x 714, 722-23 (5th Cir.
2006) (“In an action for trade secret misappropriation, the plaintiff may recover
actual damages based on either the value of what has been lost by the plaintiff or
the value of what has been gained by the defendant. … The value of what has been
lost by the plaintiff is usually measured by lost profits.”) (applying Texas law)
(emphasis added). No Texas court has ever allowed attorneys’ fees in other cases to
be recovered as actual damages in a trade secret claim. In fact, at leakst one recent
Texas court has concluded the opposite in dismissing a TUTSA Cclaim. See Lacore
Enters., LLC v. Angles, No. 05-21-00798-CV, 2023 Tex. App. LEXIS 1926, at *32-33
(Tex. App.—Dallas Mar. 23, 2023, no pet. h.) (mem. op.) (irejecting contention that
“disclosure of [party’s] confidential information” caused “the attorney’s fees that have
been incurred [which] is evidence of damages” because “attorney’s fees incurred in a
lawsuit are not actual damages.”).
This conclusion is further reinforceld by Texas law regarding attorney’s fees
incurred in previous litigation. “[F]eeMs expended in prior litigation generally are not
recoverable as damages; fees are recoverable only when an agreement between the
parties so provides.” Martin-Siimon v. Womack, 68 S.W.3d 793, 797 (Tex. App.—
Houston [14th Dist.] 2001, pet. denied); see also Tana Oil & Gas Corp. v. McCall, 104
S.W.3d 80, 81-82 (Texo. 2003) (attorney’s fees for defending a different claim are not
recoverable as damlages as a matter of law); O'Neal v. Dale, No. 02-20-00173-CV, 2021
Tex. App. LEXiIS 466, at *28 (Tex. App.—Fort Worth Jan. 21, 2021, no pet.) (mem.
op.) (“a party's claim that he incurred attorney’s fees to defend against [another] claim
is not a viable damage claim.”); Tex. Mut. Ins. Co. v. Ray Ferguson Interests, Inc., No.
01-02-00807-CV, 2006 Tex. App. LEXIS 2001, at *23-24 (Tex. App.—Houston [1st
Dist.] Mar. 16, 2006, pet. denied) (mem. op.) (“financial loss due to time spent by
[party] on litigation matters” in another case was not, as a matter of law, recoverable).
And the law is clear that “[a] party relying on assertions of non-recoverable damages
alone, such as attorney’s fees and expenses sustained in defending a lawsuit . . . has
presented a legal barrier to any recovery.” Woodhaven Partners Ltd. vk. Shamoun &
Norman, L.L.P., 422 S.W.3d 821, 837 (Tex. App.—Dallas 2014, no Cpet.).
Pohl may argue that he is entitled to recover attorney’s fees based on an
exception to the general rule based on the “tort of another,” wihich provides that “[o]ne
who through the tort of another has been required to act in the protection of his
interests by bringing or defending an action against a third person is entitled to
recover reasonable compensation for loss of time, attorney fees and other
expenditures thereby suffered or incurredl in the earlier action.” Naschke v. Gulf
Coast Conference, 187 S.W.3d 653, 6M55 (Tex. App.—Houston [14th Dist.] 2006, pet.
denied) (quoting RESTATEMENT (SECOND) OF TORTS § 914 (1979)). But that exception
has never been embraced by tihe Texas Supreme Court4 and has been flatly rejected
by the Fourteenth Court of Appeals.5 See Naschke, 187 S.W.3d at 655 (“Because we
are bound to follow thoe existing laws of the State, we are not at liberty to adopt a
4 See Akin, Gum f pi, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d 106, 119
(Tex. 2009) (“o[W]e need not and do not address whether the exception set out in section 914(2) of the
Second Restnatement should be adopted as Texas law.”).
5 Other intermediate courts of appeals have likewise refused to adopt the tort of another doctrine.
Riner v. Neumann, 353 S.W.3d 312, 323 (Tex. App.—Dallas 2011, no pet.) (“Given the supreme court’s
faithful adherence to the American Rule, and its strong statement in Tony Gullo that trial courts lack
the inherent authority to award fees contrary to the Rule, we decline to adopt a new equitable
exception to the Rule.”); TOKA Gen. Contractors v. Wm. Rigg Co., No. 04-12-00474-CV, 2014 Tex. App.
LEXIS 3776, at *20 (Tex. App.—San Antonio Apr. 9, 2014, pet. denied) (mem. op.) (collecting cases);
Per-Se Techs., Inc. v. Sybase, Inc., No. 01-03-01293-CV, 2005 Tex. App. LEXIS 5096, at *24 (Tex.
App.—Houston [1st Dist.] June 30, 2005, no pet.) (mem. op.) (collecting cases).
theory of recovery that has not been enacted by the Legislature or adopted by the
Texas Supreme Court.”).
The First Court of Appeals has not specifically held whether the “tort of
another” exception is viable. But it has stated that because this exkception is an
equitable doctrine it can only apply when the plaintiff is “whollyC innocent” of any
wrongdoing. See Per-Se Techs., Inc. v. Sybase, Inc., No. 01-03-01293-CV, 2005 Tex.
App. LEXIS 5096, at *24 (Tex. App.—Houston [1st Dist.]i June 30, 2005, no pet.)
(mem. op.); see also Brannan Paving GP, LLC v. Pavement Markings, Inc., 446 S.W.3d
14, 27 (Tex. App.—Corpus Christi 2013, pet. denied) (referring to the “tort of another
exception” as an “equitable exception” to the general rule).
Here, the jury concluded in responsel to Question 3 that the “wrongful conduct
of Pohl . . . contribute[d] to the injury.M”6 Because Pohl is not a wholly innocent party,
he may not invoke the “tort of another exception” to the general rule even if it is a
viable doctrine under Texas laiw. See Per-Se Techs., 2005 Tex. App. LEXIS 5096, at
*24; see also Pacesetter Pools, Inc. v. Pierce Homes, Inc., 86 S.W.3d 827, 834 (Tex.
App.—Austin 2002, noo pet.) (“[B]ecause the jury found that Allcox's damages were
caused by the neglligent conduct of both Pierce Homes and Pacesetter, equitable
principles do niot allow Pierce Homes to recover its previously incurred attorney’s fees
as damages.”); Dayton Hudson Corp. v. Eldridge, 742 S.W.2d 482, 488 (Tex. App.—
Dallas 1987, writ denied) (“[I]n the present case, Eldridge is not an innocent party
forced to incur costs and expenses, including attorneys' fees, to be treated as the legal
6 Motion, at Exhibit A, at Question No. 3.
consequences of some original wrongful act of another and permitted to be recovered
as damages.”).
Accordingly, attorney’s fees incurred by Pohl in defending against barratry
litigation and grievances are not recoverable “actual losses” under TUTSkA and should
not be included in the judgment. C
B. Attorneys’ fees are never recoverable against persons
bringing grievance procedures. t
Rule 17.09 of the Texas Rules of Disciplinary Procedure provides immunity to
persons filing grievance procedures: “No lawsuit emay be instituted against any
Complainant or witness predicated upon the filinug of a Grievance or participation in
the attorney disciplinary and disability system . . . . The immunity is absolute and
unqualified and extends to all actions ata law or in equity.” TEX. R. DISC. P. 17.09. Even
“allegations of wrongdoing . . . in connection with [the] prosecution of disciplinary
actions” are absolutely immune,e so long as they are “predicated upon” the filing of a
grievance. Crampton v. Farfris, 596 S.W.3d 267, 274-75 (Tex. App.—Houston [1st
Dist.] 2019, no pet.).
Thus, the $112,286 in attorney’s fees for defending against grievances that the
jury found in Quiestion 7(1)(e) and 7(1)(f) and are not recoverable damages as a matter
of law. See ToEX. R. DISC. P. 17.09.
III. The judgment should not include damages for both unjust
enrichment and fair market value; Pohl should have to elect
between the two.
Under TUTSA, a claimant is entitled to recover “actual loss caused by the
misappropriation and unjust enrichment caused by misappropriation that is not
10
taken into account in computing actual loss.” TEX. CIV. PRAC. & REM. CODE §134A.004.
Pohl’s request for judgment seeks an improper double recovery. In response to
Question 7(2) the jury found $250,000 in damages for actual loss, that is, the price a
willing buyer and a willing seller would have agreed on, at the time okf the alleged
misappropriation, as a fair price for Kassab’s use of the allegedC trade secrets. In
response to Question 7(3), the jury found $200,000 in unjust enrichment damages,
that is, the value of the development costs that Kassiab avoided by allegedly
misappropriating Pohl’s trade secrets.
If Pohl recovers the fair market value of his alleged trade secrets he will be
fully compensated for any actual loss. If he were willing to sell the alleged secrets to
a third party, that buyer would necessarilyl possess the secrets and would avoid any
development costs as part of the acqMuisition. Therefore, the development costs are
“taken into account” in the market value and duplicate the fair market value. TEX.
CIV. PRAC. & REM. CODE § 134Ai.004. In other words, Pohl cannot recover both of these
duplicative elements of damages under TUTSA but should be required to make an
election between the towo.
IV. The judgmlent should not include joint and several liability
under a iconspiracy theory because conspiracy is pre-empted
under TiUTSA or subject to proportionate responsibility under
Chapoter 33.
Pohl’s proposed judgment includes joint and several liability against Kassab
based on a conspiracy finding by the jury in Question 15. But Pohl’s conspiracy claim
is either preempted by TUTSA or subject to the proportionate responsibility scheme
of Chapter 33 of the Texas Civil Practice & Remedies Code.
11
With respect to TUTSA, the act provides that it “displaces conflicting tort,
restitutionary, and other law of this state providing civil remedies for
misappropriation of a trade secret.” TEX. CIV. PRAC. & REM. CODE §134A.007.
Although no Texas case has addressed this issue, a federal district cokurt sitting in
Texas has concluded that “the weight of authority from district courCts within the Fifth
Circuit … [demonstrate a] conspiracy claim is preempted by TUTSA.” VEST Safety
Med. Servs., LLC v. Arbor Env't, LLC, No. 4:20-CV-0812i, 2022 U.S. Dist. LEXIS
127285, at *10 (S.D. Tex. 2022) (collecting cases).
With respect to Chapter 33, it applies to “any cause of action based on tort in
which a defendant, settling person, or responsible third party is found responsible for
a percentage of the harm for which relief ils sought.” TEX. CIV. PRAC. & REM. CODE §
33.002(a). “Civil conspiracy is an inMtentional tort.” Firestone Steel Prods. Co. v.
Barajas, 927 S.W.2d 608, 617 (Tex. 1996). Chapter 33 lists those claims to which it
does not apply and does not lisit conspiracy. See id. at § 33.002(c). Accordingly, courts
have concluded that Chapter 33’s proportionate responsibility scheme applies to
conspiracy claims, ratoher than joint and several liability. See Seven Seas Petroleum,
Inc. v. Cibc World lMkts. Corp., No. H-08-3048, 2013 U.S. Dist. LEXIS 101112, at *73-
74 (S.D. Tex. i2013) (“when the Legislature has chosen to impose joint and several
liability rather than proportionate liability, it has clearly said so.”); Pemex
Exploracion Y Produccion v. BASF Corp., No. H-10-1997, 2011 U.S. Dist. LEXIS
156655, at *43-48 (S.D. Tex. 2011) (claims for conspiracy are not expressly exempted
from Chapter 33's proportionate responsibility framework).
12
Because the conspiracy claim is either preempted by TUTSA or subject to the
proportionate responsibility scheme under Chapter 33, the judgment should not
include joint and several liability against Kassab.
V. The judgment should not include any damages against Kkassab
because the jury’s finding of no wrongdoing by Perecision
destroys the misappropriation claim against Kassab. C
Pohl alleged that Precision illegally misappropriated trade secrets from him,
and that Kassab subsequently committed indirect misappriopriation of trade secrets
by acquiring illegally misappropriated trade secrets from Precision.7 Although Pohl
originally sued Precision, he non-suited his claims against Precision. Nevertheless,
Precision was designated as a responsible third party, and when the jury was asked
whether Precision misappropriated trade lsecrets from Pohl, it found that Precision
did not.8 In consistent fashion, the juryM answered “0” in Question 4 when asked to assign what
percentage of the “fault that caused the o injury” was attributable to Precision.9
Indirect misappropriation of trade secrets has been described as a “daisy-
chain” type liability in that the plaintiff must show “that the defendant knew or
had reason to knowo before the use or disclosure that the information was a trade
secret and knew olr had reason to know that the disclosing party had acquired it
7 Plaintiff’s nFirst Amended Petition, at ¶ 21 (“Favre and Precision illegally misappropriated
Pohl’s prUoprietary and confidential information and property …which included information
about and/or communications with as many as 10,000 or more of Pohl’s clients/prospective clients.
Favre and Precision stole physical copies of certain of the information, stole Pohl’s computers,
and misappropriated electronic data to which they had access through Precision’s work for Pohl.”)
(emphasis added).
8 Motion, at Exhibit A, Question 2(a)(3) and 2(b)(3).
9 Motion, Exhibit A, at Question No. 4(3).
13
through improper means or was breaching a duty of confidentiality by disclosing it.”
AssuredPartners of Or., LLC v. Reese, No. 6:22-cv-00673-MC, 2022 U.S. Dist. LEXIS
233618, at *7 (D. Or. 2022) (emphasis added). In other words, the jury must find the
first person in the chain committed direct misappropriation — i.e. kacquired the
information by improper means – before any of those indirectly misCappropriating can
be found liable. See TEX. CIV. PRAC. & REM. CODE § 134A.002
(3)(B)(ii)(a) (requiring
the person misusing the trade secret to know or have reaison know that the trade
secret was “derived from or through a person who used improper means to acquire
the trade secret”).
Here, the jury answered “No” to the question of whether Precision had
misappropriated Pohl’s trade secrets even tlhough Precision was defined in the charge
to include Walker, Seymour and LadnMer prior to May 12, 2015 and Favre after May
12, 2015.10 The jury’s finding that Precision, and those associated with Precision, did
not misappropriate anything —i meaning it either owed no duty to Pohl or breached
no duty to Pohl when it provided Pohl's alleged information to Kassab — precludes
liability against Kassaob for indirect misappropriation.
a l PRAYER FOR RELIEF
For all tihese reasons, Kassab objects to the judgment submitted by Pohl and
respectfully requests that the Court refrain from signing the proposed judgment.
10 See Motion, at Exhibit A, p. 5.
14
ALEXANDER DUBOSE & JEFFERSON LLP
/s/ Kevin Dubose
Kevin Dubose
kdubose@adjtlaw.com
Texas State Bar No. 06150500
1844 Harvard Street k
Houston, Texas 77008 e
Phone (713) 523-0667 C
Facsimile (713) 522-4553
FOGLER, BRAR, O’NEItL & GRAY, LLP
/s/ Murray Fogler
Murray Fogler
mfogler@feoglerbrar.com
Texas State Bar No. 07207300
909 Faunnin, Suite 1640
Houston, Texas 77002
(713) 481-1010
(l713) 574-3224 (Fax)
THME KASSAB LAW FIRM
/s/ David Eric Kassab
e Lance Christopher Kassab
i Texas State Bar No. 00794070
f David Eric Kassab
Texas State Bar No. 24071351
1214 Elgin Street
o Houston, Texas 77004
Telephone: (713) 522-7400
l E-service: eserve@kassab.law
i ATTORNEYS FOR KASSAB DEFENDANTS
CERTIFICATE OF SERVICE
I certify that this document has been forwarded to all counsel pursuant to the
Texas Rules of Civil Procedure on September 15th, 2023.
/s/ David Eric Kassab
David Eric Kassab
15
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
David Kassab
Bar No. 24071351
david@kassab.law r
Envelope ID: 79605741
Filing Code Description: No Fee Documents
Filing Description: t
Status as of 9/15/2023 2:32 PM CST i
Case Contacts D
Name BarNumber Email e TimestampSubmitted Status
Todd Taylor ttaylor@jandflaw.com 9/15/2023 1:38:22 PM SENT
Jean C.Frizzell jfrizzell@reBynoldsfrizzell.com 9/15/2023 1:38:22 PM SENT
Jean C.Frizzell jfrizzell@nreynoldsfrizzell.com 9/15/2023 1:38:22 PM SENT
Harris Wells hwellsi l@reynoldsfrizzell.com 9/15/2023 1:38:22 PM SENT
Todd Taylor ttaylor@jandflaw.com 9/15/2023 1:38:22 PM SENT
Scott M.Favre scott@favrepa.com 9/15/2023 1:38:22 PM SENT
Lawyer Wade lawyerwade@hotmail.com 9/15/2023 1:38:22 PM SENT
Chris C.Pappas cpappas@krcl.com 9/15/2023 1:38:22 PM SENT
Non-Party Witness Billy Shepherd O bshepherd@spcounsel.com 9/15/2023 1:38:22 PM SENT
Non-Party Dona Pohl y DonaLyann@yahoo.com 9/15/2023 1:38:22 PM SENT
Non-Party Edgar Jaimes o edgarsroom@gmail.com 9/15/2023 1:38:22 PM SENT
Lance Kassab lance@kassab.law 9/15/2023 1:38:22 PM SENT
David Kassab david@kassab.law 9/15/2023 1:38:22 PM SENT
Nicholas Pierce f i nicholas@kassab.law 9/15/2023 1:38:22 PM SENT
Lance Kassab eserve@kassab.law 9/15/2023 1:38:22 PM SENT
Andrea Mendez andrea@kassab.law 9/15/2023 1:38:22 PM SENT
Murray JFogler mfogler@foglerbrar.com 9/15/2023 1:38:22 PM SENT
Murray Fogler mfogler@fbfog.com 9/15/2023 1:38:22 PM SENT
Andrew Johnson ajohnson@thompsoncoe.com 9/15/2023 1:38:22 PM SENT
Benjamin Ritz britz@thompsoncoe.com 9/15/2023 1:38:22 PM SENT
Dale Jefferson 10607900 jefferson@mdjwlaw.com 9/15/2023 1:38:22 PM SENT
Raul Herman Suazo 24003021 suazo@mdjwlaw.com 9/15/2023 1:38:22 PM SENT
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
David Kassab
Bar No. 24071351
david@kassab.law r
Envelope ID: 79605741
Filing Code Description: No Fee Documents
Filing Description: t
Status as of 9/15/2023 2:32 PM CST i
Case Contacts D
Kevin Graham Cain 24012371 cain@mdjwlaw.com 9/15/2023 1:38:22 PM SENT
D Kassab david@kassab.law 9/15/2023 1:38:22 PM SENT
Murray J. Fogler 7207300 mfogler@foBglerbrar.com 9/15/2023 1:38:22 PM SENT
L Kassab lance@knassab.law 9/15/2023 1:38:22 PM SENT
Murray J. Fogler 7207300 mfoglielr@foglerbrar.com 9/15/2023 1:38:22 PM SENT
Thallia Malespin tmalespin@reynoldsfrizzell.com 9/15/2023 1:38:22 PM SENT
Misty Davis mdavis@reynoldsfrizzell.com 9/15/2023 1:38:22 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 9/15/2023 1:38:22 PM SENT
Kevin Dubose 6150500 kdubose@adjtlaw.com 9/15/2023 1:38:22 PM SENT
Marisa Barrera Cruz Hurd 2O4041157 mhurd@adjtlaw.com 9/15/2023 1:38:22 PM SENT
Kelly Skelton y reception@kassab.law 9/15/2023 1:38:22 PM SENT
Harris Wells o hwells@reynoldsfrizzell.com 9/15/2023 1:38:22 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 9/15/2023 1:38:22 PM SENT"
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"