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23 2022-01-31 RSP Kassab Kassab’s response to Pohl MSJ on CC The Kassab Parties' Response to Plaintiffs' Motion for Summary Judgment on Defendants' Counterclaims for Civil Barratry Kassab's opposition brief responding to Pohl's Motion for Summary Judgment seeking dismissal of Kassab's barratry counterclaims. Filed January 31, 2022, approximately 55 days after Pohl's motion. This is the response in the CC-1 motion chain. Attorneys: Lance Christopher Kassab, David Eric Kassab, and Nicholas R. Pierce of The Kassab Law Firm. CC-1 N/A Phase 2 2022-01-31_RSP_Kassab-Response-to-Pohl-MSJ-on-CC_FILED.pdf Deny Pohl's Motion for Summary Judgment on Defendants' Counterclaims 1/31/2022 3:03 PM Marilyn Burgess - District Clerk Harris County Envelope No. 61310680 By: Deandra Mosley Filed: 1/31/2022 3:03 PM CAUSE NO. 2018-58419 MICHAEL A. POHL, et al § IN THE DISTRICT COURT V. § OF HARRIS COUNTY, TEXAS SCOTT FAVRE, et al § 189th JUDICIALk DISTRICT THE KASSAB PARTIES’ RESPONSE TO PLAINTIFFS’ MCOTION FOR SUMMARY JUDGMENT ON DEFENDANTS’ COUNTERCLAIMS Defendants and Counter-Plaintiffs Lance Christophter Kassab and Lance Christopher Kassab, P.C. d/b/a/ The Kassab Law Firm (collectively, “Kassab”), files this, their Response to Plaintiff and Counter-Defeendants Michael Pohl and Law Office of Michael A. Pohl, PLLC’s Motion for Suummary Judgment on Defendants’ Counterclaims, and would respectfully show the following. SUaMMARY The Motion filed by Michael A. Pohl and Law Office of Michael A. Pohl, PLLC (“Pohl”) should be denied. Res jeudicata does not apply because facts have changed and the relationship betweefn the parties has been altered. Specifically, Pohl sued Kassab arising from the same transaction where the barratry occurred, and the clients assigned the barratry claims to Kassab to be brought as counterclaims in this action, thuis allowing Section 16.069 to revive the otherwise time-barred barratry cloaims. Section 16.069 plainly applies because Pohl’s claims against Kassab and the barratry counterclaims arise from the same transaction in which Precision Marketing Group, LLC (“Precision”) solicited clients for Pohl and obtained the alleged confidential information that Kassab is alleged to have obtained. The clients’ assignments of their barratry counterclaims against Pohl to Kassab are not 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 the Disciplinary Rules is insufficient to void otherwise valid contracts like the Assignments. k BACKGROUND C On October 8, 2014, Scott Walker, Kirk Ladner, and their company Precision sued Pohl and his law firm for breach of contract and fraiud, among other claims (“the Federal Court Case”). See Walker v. Williamson, No. 1:14cv381-KS-JCG, 2016 U.S. Dist. LEXIS 61185, at *5-6 (S.D. Miss. May 9, 2016). In the Federal Court Case, Walker, Ladner and Precision (“the Runners”) alleged that Pohl contracted with them to provide “public relations anld marketing services” to potential clients impacted by the Deepwater HorizonM oil spill in exchange for “a percentage of the attorney fees for the claims obtained from their efforts, along with expenses and a flat fee.” Id. at *6-7. “There iis evidence that the [Runners] contacted people and businesses in Mississippi to determine if they might have a claim against BP, encouraged those peoople to retain Pohl as their attorney, and were paid over $5 million in ‘barratrly pass-through money’ for their services.” Kassab v. Pohl, 612 S.W.3d 571, 57i4 (Tex. App. – Houston [1st Dist.] 2020, pet. denied). The Runners also alleged that they contracted with Pohl “to provide marketing and public relations services in connection with claims for automobile rollover accidents.” Walker v. Williamson, No. 1:14-CV-381-KS-MTP, 2017 U.S. Dist. LEXIS 59031, at *5 (S.D. Miss. Apr. 18, 2017). Among those solicited were two families from Louisiana and Arkansas, who presented evidence that they were illegally and unethically solicited by the Runners to hire Pohl. See Cheatham v. Pohl, No. 01-20-00046-CV, 2022 Tex. App. LEXIS 649, at *9 (Tex. App.—Houston [1st Dist.] Jan. 27, 2022, no pet.). They presented evidence that kPohl and his associating attorney “were aware of the solicitation of potentiaCl clients and that [Walker] had phone conversations with Pohl and [his associating counsel] from inside potential clients’ hospital rooms to discuss the attorniey ‘marketing.’” Id. The Runners eventually sued Pohl because they “procured thousands of viable BP claims” and “approximately sixty motor vehicle accident cases” for Pohl but that Pohl “did noy pay any of the agreed share of his fees” or all expenses incurred. Walker v. Williamson, No. 1:14l-cv-381-KS-JCG, 2016 U.S. Dist. LEXIS 76488, at *5, 24 (S.D. Miss. Mar. 1, 20M16). During discovery in the Federal Court Case, Pohl discovered that the Runners allegedly “disclosedi confidential and proprietary information to third parties without authorization” and proposed “the ‘sale’ of all of [his] accumulated work product to thirod parties” while working for him.1 Pohl testifies that the Runners “undertolok to convert, misappropriate for themselves and/or market to third parties iclaimant files and other information and materials” that allegedly belonged to Pohl2 – including “marketing information and other trade secrets”3 – 1 Exhibit 1, Pohl’s June 19, 2018 Affidavit, at ¶ 18. 2 Exhibit 1, at ¶ 28. 3 Exhibit 1, at ¶ 28. and then the new owner of Precision, Scott Favre, allegedly “sold those items and the information” to Kassab.4 As a result, Pohl “asserted multiple claims against” the Runners in the Federal Court Case based on their alleged “fraudulent and bad faith coknduct.”5 Pohl did not assert any claims against Kassab in the Federal Court CasCe, even though he testified under oath that he knew Kassab allegedly was part of the “team of thieves” who broke into Pohl’s office in 2014 and stole his confiidential information and purported trade secrets.6 Pohl eventually settled his claims against the Runners, and the Federal Court Case was dismissed with prejudice on April 24, 2017.7 After hearing about Pohl’s client-solicitation activities, Kassab began researching the matter and met with Favlre and his counsel, Tina Nicholson. Pohl, 612 S.W.3d at 574. Favre informedM Kassab that, when he bought Precision, he acquired files related to Pohl and Favre transferred that information to Kassab. Id. Kassab prepared advertisemenit letters approved by the State Bar of Texas and sent it to the people who had been illegally solicited by Pohl, informing them that they may have potential obarratry claims against Pohl. Id. at 575. “Hundreds of Mississippi residenlts responded to Kassab’s advertisement letter”, “[m]ore than 400 signed represientation contracts with Kassab’s firm to pursue barratry claims 4 Exhibit 1, at ¶ 29. 5 Exhibit 1, at ¶ 19; Exhibit 2, Pohl’s Amended Counterclaim. 6 Exhibit 3, May 15, 2018 Deposition of Michael Pohl, pp. 85-93. 7 Exhibit 4, April 21, 2017 Judgment. against Pohl”, and “Kassab filed four barratry suits against Pohl in Harris County district courts, each with multiple named plaintiffs.” Id. One of those lawsuits – the Berry case – settled for a confidential amount.8 Another of those lawsuits – the Cheatham case – was wrongly kdismissed on summary judgment in favor of Pohl by the trial court and reversCed and remanded. See Cheatham, 2022 Tex. App. LEXIS 649, at *34. The two other cases – Brumfield and Gandy – were dismissed on summary judgment soliely based on limitations grounds. See Brumfield v. Williamson, 634 S.W.3d 170 (Tex. App.—Houston [1st Dist.] 2021, pet. denied); Gandy v. Williamson, 634 S.W.3d 214 (Tex. App.—Houston [1st Dist.] 2021, pet. denied). Meanwhile, Pohl filed this litigatlion against Kassab, Favre, Nicholson, Precision, and others, for conversMion, misappropriation of trade secrets and conspiracy.9 Here, Pohl rehashes his allegations from the Federal Court Case, claiming that “Precision gaiined access to Pohl’s confidential and proprietary information and property, including trade secret materials” and “work product” and “illegally misapproprioated” this information and then allegedly “secretly sold Pohl’s confidential informlation to Kassab”10 who then “solicited clients/prospective clients [of Pohl’s] to aict as Plaintiffs . . . to bring cases against Pohl for alleged barratry and other claims.”11 8 Exhibit 5, Declaration of Lance Kassab, at ¶ 5. 9 See Pohl’s First Amended Petition (“Petition”), 10 Petition, at ¶¶ 20-21. 11 Petition, at ¶ 29. Seeing Pohl’s retaliatory suit as a means to potentially revive the barratry claims dismissed on limitations in Brumfield and Gandy, Kassab and his clients executed 242 Limited Assignments (“the Assignments”).12 The Assignments assigned only the clients’ barratry claims against Pohl to Kassab, in kconsideration of Kassab’s continued work on the claims.13 Importantly, howeveCr, Kassab and the clients agreed that, in the event there was a recovery on the assigned barratry claims against Pohl, Kassab would only deduct his 40% conitingency fee interest and the remaining 60% of the recovery would go to the clients.14 Accordingly, within 30 days of his answer being due, Kassab filed his third amended counterclaim, asserting 242 barratry claims against Pohl pursuant to the Assignments. See Kassab 3rd Am. Countelrclaim at 11. Kassab affirmatively pled Section 16.069 of the Texas Civil PraMctice & Remedies Code, which provides that a counterclaim arising out of the same transaction or occurrence that is the basis of an action may be brought evein if it would be barred by limitations. Id. Kassab also provided a multi-page statement of facts, explaining how the barratry claims arise out of the same transoaction and occurrence as Pohl’s claims against Kassab. Id. at 4-11. Finally, Kalssab asserted several affirmative defenses, including unclean hands, illegaliity, and in pari delicto. Id. at 3. 12 Kassab Declaration, at ¶ 11. 13 Kassab Declaration, at ¶ 11; Motion, at Exhibit J (example Assignments). 14 Kassab Declaration, at ¶ 11. Pohl now moves for traditional summary judgment on the barratry counterclaims. For the reasons stated herein, summary judgment should be denied. SUMMARY JUDGMENT STANDARD In a traditional summary judgment motion, the movant has tkhe burden to show that no genuine issue of material fact exists and that the Ctrial court should grant judgment as a matter of law. TEX. R. CIV. P. 166a(c); KP MG Peat Marwick v. Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tiex. 1999). A defendant moving for traditional summary judgment must negate at least one essential element of each of the plaintiff's causes of action or establish each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). The Court must (1) take as true all levidence favorable to the nonmovant and (2) indulge every reasonable inferencMe and resolve any doubts in the nonmovant's favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). ARiGUMENT & AUTHORITIES Pohl makes three arguments to support his request for dismissal of the barratry counterclaimos: (1) res judicata; (2) limitations; and (3) the Assignments are invalid as a mattler of law, based on public policy and because they purportedly violate the Disiciplinary Rules. Each argument will be addressed, but none warrant summary judgment. A. Res judicata does not apply because facts have changed and the relationship between the parties has been altered. The Texas Supreme Court has made clear that “a judgment in one suit will not operate as res judicata to a subsequent suit on the same questionk between the same parties where, in the interval, the facts have changed, oCr new facts have occurred which may alter the legal rights or relations of the parties.” Marino v. State Farm Fire & Cas. Ins. Co., 787 S.W.2d 948, 949-i50 (Tex. 1990). In other words, “res judicata is not a defense in a subsequent action if there has been a change in the material facts” because “no judgment can affect subsequently arising rights and duties.” Id. Simply put, “[e]stoppel by judgment extends only to facts in issue as they existed at the time the judgmlent was rendered[.]” Lubbock v. Stubbs, 327 S.W.2d 411, 414 (1959). M Even if the barratry claims were barred by the statute of limitations as the prior judgments in Brumfield iand Gandy concluded, there was a change in material facts when Pohl sued Kassab for claims arising from the same transaction that the barratry occurred, anod the barratry claims were assigned to Kassab thereby giving Kassab the abilityl to revive the once-barred claims pursuant to Section 16.069. In other words, tihe prior judgments based on limitations are not res judicata on the barratry counterclaims because Section 16.069 was not an available defense to the clients in the prior litigation. See Marino, 787 S.W.2d at 950 (res judicata did not bar insured’s subsequent suit for bad faith because claim was not available when the first judgment was entered). Accordingly, res judicata does not apply.15 B. The barratry counterclaims are not barred by limitations. Even if the barratry claims were at one time barred by limietations, Section 16.069 of the Civil Practice and Remedies Code revived those claims when Kassab brought them as counterclaims to Pohl’s action. Section 16.06t9 section provides: (a) If a counterclaim or cross claim arises out of the same transaction or occurrence that is the basis of an action, a party to the action may file the counterclaeim or cross claim even though as a separate action it would be barred by limitation on the date the party’s answer is requiured. (b) The counterclaim or cross claim must be filed not later than the 30th day after the date on whlich the party’s answer is required. TEX. CIV. PRAC. & REM. CODE § 16.06M9. Pohl contends that Section 16.069 does not apply here because (1) the barratry counterclaims “do not arise out of the same transaction or occurrence” ias Pohl’s claims; (2) Kassab did not assert the counterclaims within the 30-day deadline; and (3) the purpose of the statute would be frustrated. Mot. ato 9-14. All three arguments fail. 15 Res judicata also does not apply because, according to Pohl, the barratry claims that were dismissed “do not arise out of the same transaction or occurrence as Pohl’s claims.” Motion, at 9. If that is true, then Pohl is not entitled to summary judgment on res judicata because that doctrine only works to bar subsequent claims that arise out of the same transaction or occurrence. See Barr v. Resolution Trust Corp. ex rel. Sunbelt Fed. Sav., 837 S.W.2d 627, 631 (Tex. 1992) (“a final judgment on an action extinguishes the right to bring suit on the transaction, or series of connected transactions, out of which the action arose.”). 1. Both Pohl’s claims and Kassab’s counterclaims arise out of the same transaction or occurrence: Pohl’s engagement of Precision to “liaise” with prospective clients. Texas courts apply “a logical relationship test to determine whether counterclaims arise out of the same transaction or occurrence.” Comemint Technical Servs., Inc. v. Quickel, 314 S.W.3d 646, 653 (Tex. App. – Houston [14th Dist.] 2010, no pet.). Pohl argues that the facts relevant to the barratry ctounterclaims are “in no way relevant to Pohl’s claims of conversion and theft of trade secrets.” Mot. at 9. But the facts for both claims need only arise frome the same “transaction,” which courts define as a “flexible [and] comprehenduing a series of many occurrences logically related to one another.” Wells v. Dotson, 261 S.W.3d 275, 281 (Tex. App.— Tyler 2008, no pet.). The facts underlyinag Pohl’s conversion and theft of trade secret claims are logically related to the same facts underlying the barratry counterclaims. A comparison of the pleadings deemonstrates this point. In his petition, Pohl aflleges that he “engaged Precision for a period of time to provide public relations services, to gather and preserve evidence, and to screen and liaise with Pohl’s clients/prospective clients” and that, during this engagement, “Precision gaineid access to Pohl’s confidential and proprietary information and property, inocluding trade secret materials, that included the identities of Pohl’s clients/prospective clients, as well as their detailed contact information.” Pohl Am. Pet. at ¶ 20. Pohl alleges that Precession and its subsequent owner Farve “secretly sold Pohl’s stolen and confidential information” to Kassab, which is the basis of Pohl’s theft and trade secret claims. Id. at ¶ 21. 10 In his counterclaim, Kassab alleges that Pohl’s engagement of Precision was not to provide “public relations services” but was to illegally and unethically solicit clients in violation of the laws and rules governing barratry. See Kassab 3rd Am. Ans. and Counterclaim at 4-5. Kassab alleges that Pohl did not hirek Precision to “liaise” with clients, but to unethically solicit them to retain PoChl. Id. at 5-6. The barratry counterclaims are based on 242 Assignments that Kassab received from the clients who were solicited by Precision, at Pohl’s instruiction, and are part of the group of clients who own the information that Pohl alleges Kassab misappropriated. Id. at 10-11. Pohl’s claims against Kassab and Kassab’s counterclaims against Pohl both arise from the relationship between Polhl and Precision. The facts relevant to determining whether Precision gainMed access to Pohl’s confidential information while “liaising” with prospective clients are also relevant to determining whether the “liaising” conducted by Priecision – at Pohl’s direction – amounted to unlawful barratry. Accordingly, the logical relationship test is satisfied. See Quickel, 314 S.W.3d at 653 (breaoch of contract claim and defamation claim met the logical relationship test elven though one “span[ed] a longer time period and involve[d] broader issuesi” because they both arose “from the breakdown of the employment relationship between” the two parties). Pohl cites several cases to argue that courts have refused to apply Section 16.069 “in cases involving much more related claims than the counterclaims Kassab asserts.” Mot. at 10. But the cases that Pohl cites are clearly distinguishable. 11 Pohl first relies on Freeman v. Cherokee Water Co., 11 S.W.3d 480 (Tex. App.—Texarkana 2000, pet. denied). In Freeman, the Cherokee Water Company brought a declaratory judgment action against the Freemans to interpret one provision in a deed, pertaining to a grant of fishing rights. Id. at 483. Ikn response to that action, the Freemans filed a counterclaim to set aside the enCtire deed based on an alleged fraudulent execution of the deed. Id. at 483. The court concluded that the Freemans’ counterclaim for fraud was not logically relaited to Cherokee’s action because it “in no way relate[d] to the fishing rights [provision], or any other interpretation of the deed.” Id. Freeman has no application here. Pohl’s claims and Kassab’s counterclaims are logically related, particularly becausel both claims depend on the manner in which Precision worked for Pohl Mto procure client contact information. Pohl contends that during the relationship, Precision obtained client information and sold it to Kassab, while Kaissab contends that during that same relationship Precision obtained the clients giving rise to the purportedly confidential information illegally. Kassab’s couonterclaims arise out of the same transaction or occurrence – the work providedl by Precision “marketing group” to acquire clients and client information – iwhich is also the basis for Pohl’s action. Pohl’s reliance on T&C Constr., Ltd. v. Brown Mech. Servs., No. 01-19-00041- CV, 2020 Tex. App. LEXIS 5067 (Tex. App.—Houston [1st Dist.] July 9, 2020, no pet.) is also mistaken. The court in T&C Constriction declined to apply Section 16.069 to save an otherwise barred unjust enrichment claim because it related not 12 to the transaction underlying the breach of contract claim brought by the plaintiff, but to “payments made for a separate job” relating to separate contract. Id. at *16. Here, Kassab’s counterclaims for barratry and Pohl’s claim for theft of trade secrets all arise from the same transaction or occurrence: Precision’s kmarketing to to acquire clients and secure client information. It is immateriaCl that the claims may also require a showing of different facts because only “some of the facts surrounding the causes of action [need] arise from thie same transaction or occurrence.” Encore Enters., Inc. v. Borderplex Realty Tr., 583 S.W.3d 713, 722 (Tex. App.—El Paso 2019, no pet.) (emphasis added). Pohl argues that whether he solicited the clients in 2012 to 2014 has no bearing on Kassab’s alleged misconduct inl 2016. Mot. at 11. But again, claims can arise from the same transaction evenM if they involve “a series of many occurrences” so long as they are “logically related to one another.” Wells, 261 S.W.3d at 281. That is the case here. Pohl compilains that Kassab allegedly purchased confidential information acquired by Precision while it was performing client acquisition services, thus giving orise to Pohl’s claim for misappropriation. Kassab complains that the client acqluisition performed by Precision was illegal and unethical, thus giving rise to tihe barratry counterclaims. Simply put, Kassab’s alleged purchase of client information from Precision (which is contested) derived out of the client acquisition from Precision. Both claims are logically related to one another, regardless of the time that elapsed between occurrences. See Rahlek, Ltd. v. Wells, 587 S.W.3d 57, 75 (Tex. App.—Eastland 2019, pet. denied) (concluding declaratory 13 judgment action to construe 2006 deed was logically related to unjust enrichment counterclaim arising out of royalty payments made pursuant to the deed in 2013). Accordingly, Section 16.069(a) is satisfied, and the statute of limitations on the barratry counterclaims is tolled once Kassab complied with sectionk (b) by filing the counterclaims not later than the 30th day after the date on Cwhich his answer was due. 2. Kassab asserted valid and suifficiently pled counterclaims within the 30-day deadline. Pohl does not dispute that Kassab filed his baerratry counterclaims within the 30-day deadline. Mot. at 11. Instead, Pohl arugues that the counterclaims were insufficiently alleged to “satisfy the requirements of the statute” because they did not provide “any indication of who assiganed the claims” or provide “fair notice of the facts giving rise to the claims[.]” Mot. at 11. This argument fails as well. Pohl relies on Rogers v. eVeigel Inter Vivos Tr. No. 2, 162 S.W.3d 281 (Tex. App.—Amarillo 2005, pet. defnied) to argue that Kassab’s pleadings were deficient. Mot. at 11-12. Notably, Pohl does so without discussing the facts of Rogers. Pohl fails to do so because Rogers is easily distinguishable. Rogers wais an estate dispute. 162 S.W.3d at 285. The plaintiff, ANB, sued to be removedo as trustee of the decedent’s estate. Id. The grandchildren of the decedent, R.W., answered and asserted the following “averment” in their “answer” as a purported counterclaim for damages: [R.W.] denies that ANB should be removed as Trustee at this time, in that there is a question as to acts of the Trustee under Ardella's Intervivos Trust No. 2 and under the estate of Charles[.] 14 Id. at 289-290 (cleaned up). The Rogers court looked to Rule 47 and concluded that the averment was insufficient to assert a counterclaim, reasoning: There is no general prayer for relief, no allegation that the damages were within the trial court's jurisdictional limits, and no description of any particular cause of action. All [the defendant] did was deny [the plaintiff’s] allegation that it should be allowed to resign as trustee. And, he based that denial upon the mere suggestion thatt there were “questions” about [the plaintiff’s] “acts.” What the “quesitions” or “acts” were, what rights or interests of [the defendant], if asnty, were involved, or the injury, if any, supposedly suffered by [the dDefiendant] due to the unspecified acts went unmentioned.  While Texas follows the theory of “notice pleadings,” … the concept still requires the litigant to provide fair notice of the claims involved to the accused. [citation omitted]. And, to be fair, the allegations must be sufficient to inform a reasonably competent attorney of the nature and basic issues of the controversy and of the potentially relevant evidence. [citation omitted]. Merely stating tlhat ANB should not be allowed to resign because of unspecified “quaestions” created by unspecified “acts” hardly falls within that ambit. Id. at 289. The Rogers court also nioted that, after a discovery dispute arose relating to the allegations in R.W.’s answer, R.W.’s counsel stated to the trial court that R.W. “filed nothing seekingo affirmative relief from [ANB]” and “there is no affirmative relief sought froma l [ANB].” Id. “Given the oblique nature of the allegations relied upon by R.W.f,i their failure to satisfy the requirements of Rule 47, and R.W.’s own representation to the trial court made in effort to defeat discovery, [the Rogers court was] unable to say that the original answers of R.W. included counterclaims.” Id. at 289-290. 15 Rogers does not apply here. Unlike R.W., Kassab has not agreed that he is not seeking affirmative relief. To the contrary, Kassab has plainly asserted a counterclaim against Pohl: See Kassab 3rd Am. Ans. and Counterclaim aBt 1. And unlike the pleading filed by R.W., Kassab contained an allegation ythat the damages were within the jurisdictional limitation of the Court: Id. at 2. Moreover, unlpike R.W., Kassab included a specific cause of action against Pohl: “a counterclaim for civil barratry.” Id. at 11. And unlike the single sentence asserted by R.Wi., Kassab’s counterclaim is supported by seven pages of facts discussing oconduct committed by Pohl which amounted to barratry.16 Id. at 4-11. Finally, unlike R.W., Kassab asserted a prayer for affirmative relief: 16 For this reason, Pohl’s contention that Kassab’s counterclaim is “devoid of any of the facts giving rise to the claims” is false, as with most of his factual assertions. Mot. at 12. 16 Id. at 13. Kassab’s counterclaim was more than suffiscient “to provide fair notice of the claims involved to the accused.” Rogers, 162 S.rW.3d at 289. In essence, Pohl’s argument is that Kassab’s counterclaim is insufficient to provide fair notice because Kassab did notl specifically identify who the assignors of the claims were. Mot. at 12. But there is no requirement under Rule 47 for an assignee to state the identity of the assignor; rather, the claimant need only provide “a short statement of the cauise of action sufficient to give fair notice of the claim involved.” TEX. R. CIV. P. 47(a) (emphasis added). Nor does Rule 45 – the rule stating what pleadingos must include – require the assignee to identify the assignor. See TEX. R. CIV. Pa.l 45(b) (requiring only that the pleading “consist of a statement in plain and conf icise language of the plaintiff’s cause of action or the defendant’s grounds of defense.”). Rather, “Texas follows a ‘fair notice’ standard for pleading, in which courts assess the sufficiency of pleadings by determining whether an opposing party can ascertain from the pleading the nature, basic issues, and the type of evidence that might be relevant to the controversy.” Low v. Henry, 221 17 S.W.3d 609, 612 (Tex. 2007). Kassab’s pleading met that fair notice standard, and any details about the Assignments could be obtained by Pohl through discovery, which he did.17 3. Pohl’s policy arguments about why Skection 16.069 should not apply here fail. e Pohl next resorts to policy, arguing that the “object and purpose” of Section 16.069 would be frustrated if it is applied here. Mot. at t12-14. This last-resort argument is also unavailing. Pohl begins by relying on Holman St. Baptist eChurch v. Jefferson, 317 S.W.3d 540, 545 (Tex. App.—Houston [14th Dist.] 20u10, pet. denied) and Ball v. SBC Communs., Inc., No. 04-02-00702-CV, 2003 Tex. App. LEXIS 5286 (Tex. App.—San Antonio June 25, 2003, pet. denied) tao argue that “courts have limited [Section 16.069’s] reach, such as ruling it does not revive claims made in response to declarations not requesting aeffirmative relief.” Mot. at 13. But Ball has no application here because Pofhl is not seeking a declaration which does not request affirmative relief, and Holman contradicts Pohl’s argument. The court in Ball concluded that Section 16.069 “does not revive or save claims brought biy a party as counterclaims in a suit for declaratory judgment which alleges thaot such claims are absolutely barred by limitations as a matter of law.” 2003 Tex. App. LEXIS 5286 at *16. The court held that to conclude otherwise would lead to an “unjust and unreasonable” result not intended by the legislature because it would allow otherwise barred claims to be revived in an action brought to declare 17 Moreover, Pohl could have obtained a hearing on his special exceptions if he actually believed that Kassab’s pleadings were deficient. He failed to do so. 18 the claims barred by limitations. Id. at *11-13. “Were [the court] to hold that section 16.069 revives claims which are absolutely barred by limitations as a matter of law, the result would be that a litigant would never be able to seek a declaratory judgment based on limitations because a defendant could always use skection 16.069 to defeat such a suit.” Id. at *11. C Holman relied on Ball to state that one party’s “mere seeking of a declaration on limitations regarding his purported debt to [the otheir party] did not trigger section 16.069(a).” 317 S.W.3d at 545. Importantly, however, the Holman court recognized that if, “in addition to the declaration on limitations, [the party] also sought affirmative relief”, than Section 16.069 would apply. Id. at 546. This is because “[c]ourts have interpreted sectionl 16.069 as permitting a party’s otherwise time-barred counterclaims or cross clMaims only when the opposing party has sought ‘affirmative relief,’ rather than just a declaration on a dispute between the parties.” Id. at 545. The Holman courti concluded “the request for return of the stock [made by the plaintiff] was a request for affirmative relief triggering section 16.069(a).” Id. at 546. o Ball is distilnguishable because this is not a suit brought by Pohl solely to obtain a declairation that the assigned barratry claims are barred by limitations. In fact, Pohl does not seek declaratory relief at all. Rather, just as in Holman, Pohl seeks affirmative relief against Kassab for purported conversion and theft of trade secrets arising out of the documents that evidence Pohl’s illegal barratry scheme. 19 Accordingly, Section 16.069 applies, and Pohl is not entitled to summary judgment on limitations. See Holman, 317 S.W.3d at 545. C. The Assignments are not invalid, do not violate public policy or the Disciplinary Rules, and should be enforced. Pohl’s last argument again resorts to public policy and asks theis Court to void the Assignments because they are purportedly in “violation of ethical rules.” Mot. at 14. Although Pohl’s sudden regard for ethics is refreshing, Ttexas law is clear that a purported violation of an ethical rule does not void an otherwise valid contract. And Pohl’s reliance on cases prohibiting assignments eof claims under the DTPA is unavailing because this is not a DTPA case. Moure fundamentally, Pohl has argued that the Assignments are valid, and he should be estopped from taking a contrary position in this case. We will address thaat point first. 1. Pohl should be estopped from arguing that the Assignments are invalid. Although Pohl arguesi that the Assignments are invalid here, he has simultaneously argued to the Texas Supreme Court that the Assignments are valid. Specifically, Pohl reqouested the Texas Supreme Court to dismiss the appeals filed by the assignee cllients in Brumfield and Gandy because the barratry claims were assigned to Kiassab.18 Pohl argued that, “[o]n its face, the documents [the assignments] assign ‘any and all’ barratry claims [so] the Assignor retains no justiciable interest in the claims.”19 Pohl should be estopped from playing “fast and 18 Exhibit 5-A, Brumfield Motion to Dismiss; Exhibit 5-B, Gandy Motion to Dismiss. 19 Exhibit 5-A, Brumfield Motion to Dismiss, at 5; Exhibit 5-B, Gandy Motion to Dismiss, at 5. 20 loose” with the judicial system by taking these two wholly inconsistent and contrary positions. See Ferguson v. Bldg. Materials Corp. of Am., 295 S.W.3d 642, 643 (Tex. 2009) (stating that a litigant is estopped from taking inconsistent positions to obtain an unfair advantage). k 2. The Assignments are not invalid as a mattCer of law. A civil barratry claim under Section 82.0651(a) brought by a client is a “contract-based” claim. See Cheatham, 2022 Tex. Appi. LEXIS 649, at *23. Generally, claims sounding in contract are assignable, regardless of whether they are created by statute. See Lindsay ex. rel. Lindsay v. South San Antonio Indep. Sch. Dist., 983 S.W.2d 778, 779-80 (Tex. App.—San Antonio 1998, no pet.) (claim for statutory benefits was assignable becausel although the “cause of action exists by virtue of statutory law, it bears signiMficant resemblance to a common law action for breach of contract.”). Civil barratry claims under Section 82.0651(c) sound in tort. Nguyen v. Watts, 605 S.W.3di 761, 781 (Tex. App.—Houston [1st Dist.] 2020, pet. denied). Generally, tort claims are also assignable. State Farm Fire & Cas. Co. v. Gandy, 925 S.W.2d 6o96, 707 (Tex. 1996). There are two exceptions to assignability of claims that warlrant discussion, but neither applies here. The firsit exception is that “an assignment of a legal malpractice action arising from litigation is invalid.” Zuniga, Jr. v. Groce, Locke & Hebdon, 878 S.W.2d 313, 318 (Tex. App.-San Antonio 1994, writ ref'd). However, Pohl has argued – and the court of appeals has agreed – that a civil barratry claim “is not malpractice that is committed in the prosecution or defense of a claim” resulting from litigation. 21 Brumfield, 634 S.W.3d at 206. In fact, the court in Brumfield rejected as “misplaced” the clients’ effort to “analogize legal-malpractice claims to civil-barratry claims … because any alleged improper solicitation would have occurred before the formation of the attorney-client relationship[.]” Id. at 205 n. 34. Acckordingly, the rule prohibiting assignments of legal malpractice claims has noC application here. See id. (declining to extend the Hughes tolling rule – which tolls limitations on claims against the attorney when he commits malpractiice in the prosecution or defense of a claim that results in litigation – to civil barratry claims). The second exception – which is principally relied on by Pohl20 – is that “DTPA claims generally cannot be assigned by an aggrieved consumer to someone else.” PPG Indus. v. JMB/Houston Ctrs. Lltd. P'ship, 146 S.W.3d 79, 92 (Tex. 2004). That exception does not apply here foMr the simple fact that a civil barratry claim is not a DTPA claim. In fact, in his briefing filed with the Texas Supreme Court in Brumfield and Gandy, Pohli explicitly stated that “civil barratry claims are different” than DTPA claims.21 Nonetheless, Pohl again attempts to play loose with contrary arguments boy analogizing barratry claims to DTPA claims and asserting that the “analysisl” of PPG “applies to the assignability of barratry claims in this case.” Mot. at 1i6. Pohl’s reliance on PPG is mistaken for at least two reasons. First, the court in PPG noted that its decision did “not prohibit equitable assignments, such as a contingent-fee interest assigned to a consumer’s attorney.” 20 Mot. at 15-17. 21 Exhibit 5-C, Brumfield Response, at 22; Exhibit 5-D, Gandy Response, at 22. 22 146 S.W.3d at 91-92. The Assignments in this case were just that; equitable assignments from Kassab’s clients to Kassab in exchange for continuing work that Kassab would perform on the claims.22 The assignments were effectuated in an attempt to salvage the clients’ barratry claims, with the intention okf paying any proceeds from the assigned claims back to the clients in proportCion to the original contingency fee agreement should Kassab obtain any recovery.23 The assignments were equitable in nature, created to benefit the clients whoi were unknowing victims of barratry committed by Pohl.24 Second, the concerns that the PPG court had with DTPA assignments are not present here. The court noted that it had “prohibited assignments that may skew the trial process, confuse or mislead thel jury, promote collusion among nominal adversaries, or misdirect damages froMm more culpable to less culpable defendants.” 146 S.W.3d at 90. Those issues are not present in this case, under these unique circumstances. Kassab and hiis clients who assigned the claims are not adversaries, they are aligned. And the damages will not be misdirected from the more culpable to less capable partieos, but will remain directed to the most culpable party: Pohl. Finally, no jury colnfusion will occur. The PPG court noted that, because the DTPA permits mentail anguish and exemplary damages, “[j]urors are bound to experience some confusion in assessing mental anguish of a consumer, or punitive damages 22 Kassab Declaration, at ¶ 11. 23 Kassab Declaration, at ¶ 11. 24 Kassab Declaration, at ¶ 11; Given this evidence, Pohl’s contention that “[l]awyers like Kassab are in a position to take advantage of clients by purchasing assignments far below their potential value given statutory penalties” is unsupported and without merit. 23 based on the situation and sensibilities of the parties when the affected consumer is not a party.” Id. Unlike the DTPA, the civil barratry statute does not provide for mental anguish or punitive damages; it permits only actual damages, attorney’s fees, disgorgement, and civil penalties. TEX. GOV’T CODE § 82.0651(bk), (d). These remedies may be awarded regardless of the “situation and seCnsibilities” of the solicited client. Therefore, the reasoning of PPG is inapplicable to thie Assignments here, and they are presumptively valid and should be enforced. 3. The Assignments do not violate public policy, nor were they procuured in violation of the ethical rules; regardless, the Assignments cannot be voided on those grounds. Suddenly struck by a sense of eathical responsibility which has been lacking from Pohl’s moral compass for at least two decades,25 Pohl argues that the Assignments are invalid becausee Kassab allegedly obtained them in violation of the ethical rules. Mot. at 17. Of fcourse, Pohl cites no evidence for this proposition; only argument of counsel. See Mot. at 17-19. While words from Pohl’s counsel may carry great weight within the confines of their own office, it is well-settled that in the court of law “coiunsel’s statements are not evidence.” Ex parte Ubadimma, 623 S.W.3d 530o, 533 (Tex. App.—Houston [14th Dist.] 2021, no pet.). Regardless, Pohl’s argument not only lacks evidentiary support, but legal support as well. 25 Pohl indisputably began committing barratry shortly after the 2010 BP Deepwater Horizon when he paid Precision and its members “over $5 million in ‘barratry pass-through money’ for their services” which included “contact[ing] people and businesses in Mississippi to determine if they might have a claim against BP [and] encourage[ing] those people to retain Pohl as their attorney[.]” Pohl, 612 S.W.3d at 574. Later, in 2014, Pohl illegally and unethically solicited two families who lost loved ones. See Cheatham, 2022 Tex. App. LEXIS 649, at *3. 24 Pohl argues that the Assignments purportedly violated Rule 1.08(h) because they “concern causes of action and the subject matter of litigation where Kassab represented those clients.” Mot. at 19. However, Rule 1.08(h) specifically allows a lawyer to “acquire a lien granted by law to secure the lawyer’s fee ork expenses[.]” TEX. R. PROF’L COND. 1.08(h). The Assignments do not violate RuCle 1.08(h) because they were effectuated to secure a lien in Kassab’s existing fee, and help Kassab recover that fee, with the remainder from any recovery baised on the Assignments going back to the clients.26 But even if the Assignments are noncompliant under sine unknown technicality with Rule 1.08(h), that alone is insufficient to void them. This is demonstrated by Wright v. Sydow – a clase cited by Pohl27 – which held that a settlement agreement would be enforMced even if it were executed in violation of Rule 1.08 because a purported violation of the disciplinary rules does not void an otherwise valid contract. See 1i73 S.W.3d 534, 549 (Tex. App.—Houston [14th Dist.] 2004, pet. denied) (“We decline to use Disciplinary Rule 1.08 to void an otherwise valid settlement agreoement entered into at arm’s length”). The Fourteenth Court of Appeals very recenltly reiterated this holding and concluded that “an agreement is not illegal, voiid, or unenforceable as against public policy when the agreement contravenes [a Disciplinary Rule].” M.A. Mills, P.C. v. Kotts, No. 14-20-00395-CV, 2022 Tex. App. LEXIS 359, at *17 (Tex. App.—Houston [14th Dist.] Jan. 20, 2022, no pet.). Therefore, even if the Assignments are unethical and in violation of Rule 26 Kassab Declaration, at ¶ 11. 27 See Mot. at 18. 25 1.08 (and they are not), the Court cannot void them. See id. at *21 (concluding that an oral agreement between attorneys “was not illegal, void, and unenforceable because it contravened Rule 1.08(a).”). Pohl also contends that the Assignments should be declared invkalid based on “equitable considerations” because they “injury the public good.C” Mot. at 18. But “one who comes seeking equity must come with clean hands.” Omohundro v. Matthews, 341 S.W.2d 401, 410 (1960). Pohl has the fiilthiest of hands, having committed felony barratry28 by illegally and unethically soliciting the clients who assigned their claims. See Pohl, 612 S.W.3d at 574 (noting the “evidence” that Precision and its members were hired by Pohl to solicit clients and “paid over $5 million in ‘barratry pass-through money’ lfor their services.”). It would not “injure the public good” to allow clients whosMe barratry claims may otherwise be barred by limitations to assert those claims through an assignment to their attorney if it means that the claims would ibe salvaged, and the clients could obtain a relief for Pohl’s unethical conduct. To the contrary, voiding the Assignments only injures the unknowing clients aond the public, because it rewards attorneys like Pohl who knowingly commilt felony barratry and then breach their fiduciary duty of full disclosure by cioncealing the crime so that limitations may expire. The Court should not invalidate the Assignments, it should enforce them so that Pohl may finally be held accountable for his reprehensible actions that the Legislature has mandated courts like this one to protect against. See TEX. GOV’T CODE § 82.0651(e) (providing for liberal construction and application of the civil 28 See TEX. PEN. CODE § 38.12. 26 barratry statute “to protect those in need of legal services against unethical, unlawful solicitation and to provide efficient and economical procedures to secure that protection.”). CONCLUSION & PRAYER k For the foregoing reasons, the Court should deny MichaelC A. Pohl and Law Office of Michael A. Pohl, PLLC’s Motion for Summary Judgment on Defendants’ Counterclaims. i Respectfully submitted, THE KASSAB LAW FIRM __________________________ lLANCE CHRISTOPHER KASSAB a Texas State Bar No. 00794070 M lance@kassab.law  DAVID ERIC KASSAB Texas State Bar No. 24071351 e david@kassab.law i NICHOLAS R. PIERCE f Texas State Bar No. 24098263 nicholas@kassab.law 1214 Elgin Street o Houston, Texas 77004 Telephone: 713-522-7400 l Facsimile: 713-522-7410 i E-Service: eserve@kassab.law o ATTORNEYS FOR KASSAB PARTIES 27 CERTIFICATE OF SERVICE I certify that on this date, January 31, 2022, I electronically filed this document with the Clerk of the Court using the eFile.TXCourts.gov electronic filing system which will send notification of such filing to all parties or counsel of record. ______________________e_ DAVID ERIC KASSAB C 28 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: 61310680 Status as of 1/31/2022 3:07 PM CST Case Contacts r i Name BarNumber Email TimestampSubmitted Status Jean C.Frizzell jfrizzell@reynoldsfrizzell.com s1/31/2022 3:03:09 PM SENT Todd Taylor ttaylor@jandflaw.com g1/31/2022 3:03:09 PM SENT Scott M.Favre scott@favrepa.com u 1/31/2022 3:03:09 PM SENT Lance Kassab eserve@kassab.law  1/31/2022 3:03:09 PM SENT Murray Fogler mfogler@fbfog.comy 1/31/2022 3:03:09 PM SENT Murray JFogler mfogler@foglerbarar.com 1/31/2022 3:03:09 PM SENT Larry Newsom lnewsom@krcl.com 1/31/2022 3:03:09 PM SENT Jason M.Ciofalo jason@cioofalolaw.com 1/31/2022 3:03:09 PM SENT Misty Davis mdavis@reynoldsfrizzell.com 1/31/2022 3:03:09 PM SENT Andrew J. Sarne asafrne@krcl.com 1/31/2022 3:03:09 PM SENT Kathryn Laflin KLaflin@KRCL.com 1/31/2022 3:03:09 PM SENT Dale Jefferson 10607900pjefferson@mdjwlaw.com 1/31/2022 3:03:09 PM SENT Raul Herman Suazo 24003C021 suazo@mdjwlaw.com 1/31/2022 3:03:09 PM SENT Kevin Graham Cain 24a01l2371 cain@mdjwlaw.com 1/31/2022 3:03:09 PM SENT Harris Wells hwells@reynoldsfrizzell.com 1/31/2022 3:03:09 PM SENT Solace Southwicko ssouthwick@reynoldsfrizzell.com 1/31/2022 3:03:09 PM SENT E. MarieJamisUon jamison@wrightclosebarger.com 1/31/2022 3:03:09 PM SENT Jessica Z.Barger barger@wrightclosebarger.com 1/31/2022 3:03:09 PM SENT Chris C.Pappas cpappas@krcl.com 1/31/2022 3:03:09 PM SENT Todd Taylor ttaylor@jandflaw.com 1/31/2022 3:03:09 PM SENT David R.Wade lawyerwade@hotmail.com 1/31/2022 3:03:09 PM SENT Felicia Grace fgrace@krcl.com 1/31/2022 3:03:09 PM SENT

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