filings: 28

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filing_id date doc_type party description doc_type_detail procedural_posture chain outcome phase filename relief_requested full_text
28 2022-05-31 OBJ Pohl Pohl’s objection to RTP designation Pohl's Objection to Kassab's Motion to Designate Responsible Third Parties, arguing the designated persons did not cause or contribute to the harms underlying Pohl's tort claims and that Kassab failed to satisfy pleading requirements Phase 3 response to Kassab's RTP motion. Pohl objects on grounds that the designated persons are not responsible for the specific harms underlying Pohl's conversion and TUTSA claims, distinguishing between harm to Pohl and general connection to events. Also argues Kassab failed to timely disclose RTP identities in discovery. Filed by Reynolds Frizzell LLP. RTP-1 N/A Phase 3 2022-05-31_OBJ_Pohl-Objection-to-Kassab-RTP-Designation_FILED.pdf Deny Kassab's Motion to Designate Responsible Third Parties with leave for Kassab to attempt to replead 5/31/2022 5:00 PM Marilyn Burgess - District Clerk Harris County Envelope No. 64998436 By: cassie combs Filed: 5/31/2022 5:00 PM CAUSE NO. 2018-58419 MICHAEL A. POHL AND LAW OFFICE OF § IN THE DISTRICT COURT OF MICHAEL A. POHL, PLLC, § Plaintiffs, § V. § k § r SCOTT FAVRE and SCOTT M. FAVRE PA, § 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, § D LLP d/b/a BAKER NICHOLSON LAW §  FIRM; and DOUGLAS MONTAGUE III and § s MONTAGUE PITTMAN & VARNADO, P.A., § Defendants. § r189TH JUDICIAL DISTRICT POHL’S OBJECTION TO KASSAB’S MOTION TO DESIGNATE RESPONSIBLE THIRD PARTIES Plaintiffs Michael Pohl and Law Officae of Michael A. Pohl (collectively “Pohl”) file this Objection to Defendants Lance Christopher Kassab and Lance Christopher Kassab, P.C. d/b/a The Kassab Law Firm’s Motion to Desiegnate Responsible Third Parties (the “Motion”) and would show the Court as follows: f y I. INTRODUCTION The Court shouCld deny Kassab’s Motion because he fails to allege facts showing how the alleged responsiblea third parties are responsible for the harms underlying Pohl’s tort claims. Kassab seeks tfo designate eight different allegedly responsible third parties—Billy Shepherd (“ShepheUrd”), Scott Walker (“Walker”), Steve Seymour (“Seymour”) Kirk Ladner (“Ladner”), Dona Pohl (“Dona”), Edgar Jaimes (“Jaimes”), Ken Talley (“Talley”), and Magdalena Santana (“Santana”) (collectively, the “Alleged RTPs”). None of the Alleged RTPs “caused or contributed to causing” the harms underlying Pohl’s claims. TEX. CIV. PRAC. & REM. CODE § 33.011(6). Reading Kassab’s Motion, one might be forgiven for thinking that a responsible third party is any person who bears some (or any) connection with events related to a lawsuit and whose actions could allegedly have impacted the amount of damages suffered by a claimant. See generally Motion. But Texas has not adopted a “butterfly effect” theory okf proportionate responsibility. Texas’s proportionate responsibility statute requires sufficielnt allegations of a party’s responsibility for the harm underlying a plaintiff’s cause of acction before designation as a responsible third party is proper. s The statute applies only to tort claims and requires that potential responsibility be determined as to each cause of action asserted. See TEX. CIV. PRAC. & REM. CODE §§ 33.002, 33.003. The tort claims relevant to this analysis are Pohl’s claims for (1) conversion and (2) violations of the Texas Uniform Trade Secrets Act (“TUTSA”). In his Motion, Kassab fails to sufficieantly plead the Alleged RTPs “caused or contributed to causing . . . the harm for which recovery of damages is sought.” See TEX. CIV. PRAC. & REM. CODE § 33.011(6). The Alleged RTPes did not cause or contribute to the harm underlying Pohl’s conversion claim—Defendants’ f“unlawful taking” of Pohl’s property. Nor did they cause or contribute to Defendants’ “yuse” of Pohl’s trade secrets, which is the harm underlying Pohl’s TUTSA claim. SimpCly put, Kassab’s allegations about the Alleged RTPs’ conduct do not sufficiently plead thaat the Alleged RTPs meet the statutory definition of a responsible third party. f II. LEGAL STANDARD AU party seeking to designate responsible third parties must timely file “a motion for leave to designate” that pleads sufficient facts concerning those parties’ responsibility as responsible third parties. See TEX. CIV. PRAC. & REM. CODE § 33.004(a) & (g). A party can object to the motion on the basis that the movant did satisfy their pleading obligations. Id. § 33.004(g). To withstand an objection, the movant must satisfy the notice pleading standard with its allegations regarding the responsibility of potential responsible third parties. In re Cordish Co., 617 S.W.3d 909, 913 (Tex. App.—Houston [14th Dist.] 2021, orig. proceeding). This requires the movant to provide notice of the alleged duty breached and sufficient allegations kof causation, so that the parties to the lawsuit “can ascertain from [the allegations] the nature land basic issues of the controversy regarding causation, and what type of evidence might be rcelevant.” See id. at 915. The statute defines a responsible third party, as a person whso “caused or contributed to causing in any way the harm for which recovery of damages is sought, whether by negligent act or omission, by any defective or unreasonably dangerous product, by other conduct or activity that violates an applicable legal standard, or by any comb ination of these.” TEX. CIV. PRAC. & REM. CODE § 33.011(6). Importantly, responsibility for “harm” in this context is not the same as responsibility for “damages.” See In re Smitah, 366 S.W.3d 282, 286 (Tex. App.—Dallas 2012, orig. proceeding); City Nat’l Bank of Sulphur Springs v. Smith, No. 06-15-00013-CV, 2016 WL 2586607, at *7 (Tex. App.—Texarkeana May 4, 2016, pet. denied) (discussing how “harm” is synonymous with “injury” and hafs a meaning distinct from “damages”). A potential responsibyle third party must allegedly be responsible for the harm underlying the pled cause of actionC, not merely be plausibly connected with the damages associated with that harm. See City Nata’l Bank of Sulphur Springs, 2016 WL 2586607, at *7–9 (“to be a responsible third party, onef must contribute to the harm for which damages are sought, not to the damages themselvUes”); DLA Piper LLP (US) v. Linegar, 539 S.W.3d 512, 517 (Tex. App.—Eastland 2017, pet. denied). III. FACTUAL BACKGROUND ON POHL’S CLAIMS In Pohl’s First Amended Petition, the live pleading, he asserts four different causes of action: (1) A breach of contract claim; (2) conversion; (3) violations of TUTSA; and (4) conspiracy. See Plaintiffs Michael Pohl and Law Office of Michael A. Pohlk, PLLC’s First Amended Petition (the “Petition”) ¶¶ 35–43, filed Nov. 30, 2018. l Pohl’s first claim, for breach of contract, is not subject to the procportionate responsibility statute. See TEX. CIV. PRAC. & REM. CODE § 33.002 (“This chapters applies to: (1) any cause of action based on tort . . . .”). The harm underlying Pohl’s conspiracy claim is entirely derivative of the conversion and TUTSA claims, and thus there is no need to analyze it independently from those claims. Thus, the only claims relevant to the responsible third party analysis are Pohl’s claims for (1) conversion and (2) violations of TUTSA. See TEX. CIV. PRAC. & REM. CODE § 33.003 (stating trier of fact shall determine reasponsibility “as to each cause of action asserted”). A. The harm or injury for Pohl’s conversion claim is the “unlawful taking” of his property. Pohl’s conversion claim ceneters around his allegations that “Kassab and Montague knowingly purchased [Pohl’s] stolfen information/property.” Petition ¶ 38. The “injury” or “harm” that gives rise to a claim fyor conversion is a defendant’s “unlawful taking” of the plaintiff’s property. See Burns v. Rochon, 190 S.W.3d 263, 271 (Tex. App.—Houston [1st Dist.] 2006, no pet.). Each wrongfaul possession is a separate conversion. See Pemex Exploracion y Produccion v. BASF Corp., fCIV.A. H-10-1997, 2013 WL 5514944, at *31 (S.D. Tex. Oct. 1, 2013) (applying Texas law). The conversions that Pohl complains about involve the Defendants in this lawsuit, not any of the Alleged RTPs. See Petition ¶¶ 36–38. Thus, the alleged harms or injuries for which Pohl seeks recovery for in relation to his conversion claim are the “unlawful takings” by Defendants in this lawsuit. B. The harm or injury for Pohl’s TUTSA claim is the wrongful “use” of his property. Pohl’s TUTSA claim is based on the improper acquisition and sale of Pohl’s trade secrets, particularly in relation to the sale and subsequent use of them by Kassab and Montague. See Petition ¶¶ 39–42. The harm or injury giving rise to a trade-secret misappropriation claim, like Pohl’s TUTSA claim, is the unauthorized use of the trade secrets. See Sw. Elnergy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 721 (Tex. 2016). c t There are multiple harms or injuries for which Pohl seekss recovery of damages in connection with his TUTSA claim. One such harm is when Pohl’s trade secrets were used by Favre, Precision, and Nicholson in their sale of the trade secrets to Kassab and Montague. See Petition ¶ 41; Berry-Helfand, 491 S.W.3d at 722 (discussing how “[u]se of the trade secret means commercial use by which the offending party seeks to profit from the use of the secret.” (citation omitted)). Another harm is Kassab and Montrague’s use of Pohl’s stolen trade secrets to bring unfounded lawsuits against him. See Petition ¶¶ 26–29; Motion ¶ 12 (confirming Kassab used the alleged stolen materials to solicit clieents to bring claims against Pohl). fIV. DISCUSSION Kassab does not bothyer to identify which Alleged RTP is responsible for which of Pohl’s claims, nor does he identify the harms underlying Pohl’s claims that the Alleged RTPs are supposed to have caaused or contributed to. See generally Motion. Kassab’s conclusory and vague allegations do nfot meet the fair notice standard because Pohl cannot ascertain the nature and basic issues of the potential controversies with the Alleged RTPs. Kassab has not sufficiently pled that the Alleged RTPs violated legal duties in a way that proximately caused Pohl’s harms. Finally, Kassab failed to timely provide notice of the identity of potential responsible third parties in his discovery responses. A. Shepherd is not a responsible third party. Kassab’s allegations against Pohl’s attorney, Billy Shepherd, are especially tortured. Kassab apparently contends that in the scope of Shepherd’s representation of Pohl in a separate lawsuit, Shepherd failed to protect Pohl from Kassab’s intentionally tortious conduct. This theory is as ridiculous as it sounds. Such a tenuous connection to the harm on its face ldoes not satisfy the definition of a responsible third party. Kassab has not sufficiently pled cthtat Shepherd possessed any legal duty that he violated, nor has he adequately alleged that Shespherd’s conduct proximately caused Pohl’s harms.  Kassab’s factual allegations concerning Shepherd are limited to three paragraphs. See Motion ¶¶ 16–18. The only allegations relevant to establishing a duty are that Shepherd was “Pohl’s attorney in the Mississippi Litigation,” and he negotiated a settlement with certain person connected to that litigation. Id. ¶ 17. But Kassrab’s allegations only suggest that Shepherd owed a duty in relation to “the Mississippi Litigation,” and nothing pled supports a duty on Shepherd’s part to go out and prevent tortious acetivities “from all third parties” who may have gained access to Pohl’s information. Id. Nor cafn Kassab allege in good faith that Shepherd was retained to do so. Without adequate alleygations that Shepherd violated an applicable duty, he cannot be designated as a respons ible third party. See TEX. CIV. PRAC. & REM. CODE § 33.011(6). Even if Kasasab’s conclusory allegations were sufficient at this stage to allege a legal duty, he has not sufficfiently alleged that any breach of that duty proximately caused the harms suffered by Pohl. Even if Kassab’s allegations were true, Shepherd’s conduct in relation to negotiating the settlement in the Mississippi Litigation wase not a substantial and foreseeable factor in bringing about the harms for which Pohl seeks recovery in connection with his conversion and TUTSA claims. In fact, Kassab’s allegations actively undermine proximate cause, as Shepherd’s alleged failure to go out and prevent the intentionally tortious conduct of third parties at most suggests Shepherd “furnish[ed] a condition that made the injury possible.” Ambrosio v. Carter’s Shooting Ctr., Inc., 20 S.W.3d 262, 266 (Tex. App.—Houston [14th Dist.] 2000, pet. denied). Alleging in a conclusory manner that Shepherd could have stopped unspecified parties from engaging in tortious conduct outside the litigation in which he represented Pohl does not sufkficiently allege causation. l Ultimately, there are not sufficient allegations that Shepherd vicolated a legal duty that existed in a way that proximately caused Defendants’ “unlawful taksing” of (for the conversion claim) or use of (for the TUTSA claim) Pohl’s confidential and trade secret information. See generally Motion. Without sufficient allegations that Shepherd “caused or contributed to causing” these harms, he cannot be designated as a responsibl e third party. See TEX. CIV. PRAC. & REM. CODE § 33.011(6). B. The remaining Alleged RTPs do naot meet the definition of responsible third parties. Kassab’s theory of why the other Alleged RTPs—Walker, Seymour, Ladner, Dona, Jaimes, Talley and Santana—are responsiblee third parties is similarly lacking. Kassab fails to make any factual allegations connecting onef Alleged RTP with the claims in this lawsuit, and for others, Kassab makes the conclusoyry allegation that they independently “placed Pohl’s alleged trade secrets and documents in the public domain,” not that they caused or contributed to Defendants’ unlawful taking or ause of those materials. See Motion ¶ 20. These allegations are not sufficient to designate thefse persons as responsible third parties. One of the most egregious examples of Kassab’s failure to satisfy the pleading requirement is in relation to Dona. Kassab makes no particularized allegations concerning Dona at all. See generally Motion. There is no explanation of who she is, what conduct she engaged in, why she possessed a legal duty that she violated, or how she proximately caused or contributed to Pohl’s harms. See id. Kassab’s single conclusory allegation that Dona, listed with six other Alleged RTPs, “routinely placed Pohl’s alleged trade secrets and documents in the public domain, circulating Precision’s marketing lists and other documents allegedly belonging to Pohl to numerous third parties rather than safeguard these documents and lists,” is not sufficient to satisfy the fair notice pleading standard. Id. ¶ 20. Even if that conclusory allegation wkere true, it does not even suggest that Dona caused or contributed to the harms at issue in this lawlsuit—Defendants’ unlawful taking and/or use of Pohl’s materials. c Kassab provides slightly more information in connection withs his allegations about Jaimes, Talley and Santana. See Motion ¶¶ 5–10. However, none of those allegations connect Jaimes, Talley or Santana with the harms underlying Pohl’s claims—Defendants’ unlawful taking and/or use of Pohl’s materials. Like with Dona, the closest Kassab comes is the conclusory allegation that these individuals “routinely placed Pohl’s alleged trade secrets and documents in the public domain . . . . Id. ¶ 20. But this allegation doaes not provide fair notice of how these individuals caused or contributed to the relevant harms in this lawsuit.1 Finally, Kassab alleges that eWalker, Seymour, and Ladner were previous owners of Precision, allegedly making themf responsible for conversion by Defendants in the case. See Motion ¶ 19. However, aty most, their ownership connects them with a separate instance of conversion, which givCes rise to its own harm. See Pemex Exploracion y Produccion v. BASF Corp., CIV.A. H-10a-1997, 2013 WL 5514944, at *31 (S.D. Tex. Oct. 1, 2013) (stating that when property is allegfed to have been converted and then transferred to another party, “each possession is a new cUonversion.” applying Texas law)). Movant’s allegations against Walker, Seymour, and 1 For many of the Alleged RTPs—such as Dona, Jaimes, Talley and Santana—Kassab did not allege that they had a legal duty that they violated that proximately caused Pohl’s harms. See Motion ¶ 20. Instead, Kassab merely states that these persons could have breached a duty “if” they “had an agreement and/or duty to safeguard any property,” but without ever alleging such an agreement or duty existed. See generally id. Ladner are not sufficient to demonstrate they are responsible for or contributed to the relevant harms giving rise to the conversion and TUTSA claims against Defendants in this lawsuit. C. Kassab has not timely disclosed the identities of responsible third parties. Kassab cannot designate the Alleged RTPs as responsible third parties because the limitations periods on Pohl’s torts claims have passed with respect the Allegedl RTPs, and Kassab failed to comply with his obligations “to timely disclose that the[se] perscont[s] may be designated as a responsible third party under the Texas Rules of Civil Procedusre.” See TEX. CIV. PRAC. & REM. CODE § 33.004(d). Pohl’s conversion and TUTSA claims are subject to two and three-year statutes of limitations respectively. See TEX. CIV. PRAC. & REM. CODE § 16.003(a) (conversion); TEX. CIV. PRAC. & REM. CODE § 16.010(a) (trade secrets). Given that Pohl filed this lawsuit in 2018, these limitations periods have all run. In response to Pohl’s requests for disclorsure, Kassab was required to provide “the name, address, and telephone number of any person who may be designated as a responsible third party.” TEX. R. CIV. P. 194.2(l) (rule in effecet for cases filed prior to Jan. 1, 2021). However, Kassab’s responses do not provide this infofrmation.2 A party’s failure to provide any of the three pieces of information in their disclosuyre responses can show they did not satisfy their “obligations under Rule 194.2(l) and section 33.004(d).” See In re Dawson, 550 S.W.3d 625, 630 (Tex. 2018). Kassab’s disaclosure responses do not name Shepherd as a person that may be designated as a third partyf. The responses also do not provide the address or telephone number for any Alleged RTP.4 As a result, Kassab “may not designate [any Alleged RTP] as a responsible third 2 See Kassab Defendants’ First Amended Response to Plaintiffs’ Request for Disclosure, at 3, attached as Exhibit A. 3 See id. 4 See id. party,” because he has not timely disclosed any Alleged RTP under the Texas Rules of Civil Procedure. See TEX. CIV. PRAC. & REM. CODE § 33.004(d); Dawson, 550 S.W.3d at 630. V. CONCLUSION For the foregoing reasons, Plaintiffs Michael Pohl and Law Offices of Mkichael A. Pohl object to Kassab’s Motion and request that the Court deny the Motion with lleave for Kassab to attempt to replead. c Dated: May 31, 2022 Respectfully submitted, REYNOLDS FRIZZELL LLP By: /s/ Jean C. Frizzell Jean C. Frizzell State Bar No. 07484650 1100l Louisiana St., Suite 3500 Haouston, Texas 77002 MTel. 713.485.7200 Fax 713.485.7250 ojfrizzell@reynoldsfrizzell.com c Attorney for Plaintiffs Michael Pohl f and Law Office of Michael A. Pohl, PLLC CERTIFICATE OF SERVICE I hereby ccertify that a true and correct copy of this document was served on all counsel of record pursuantf to the Texas Rules of Civil Procedure on this 31st day of May, 2022. /s/ Jean C. Frizzell Jean C. Frizzell 10 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: 64998436 Status as of 6/1/2022 8:30 AM CST Case Contacts r i Name BarNumber Email TimestampSubmitted Status Zandra EFoley zfoley@thompsoncoe.com s5/31/2022 5:00:45 PM SENT Andrew Johnson ajohnson@thompsoncoe.comg5/31/2022 5:00:45 PM SENT Jean C.Frizzell jfrizzell@reynoldsfrizzell.coum 5/31/2022 5:00:45 PM SENT Murray JFogler mfogler@foglerbrar.com 5/31/2022 5:00:45 PM SENT Andrew J. Sarne asarne@krcl.com y 5/31/2022 5:00:45 PM SENT Dale Jefferson 10607900 jefferson@mdjwalaw.com 5/31/2022 5:00:45 PM SENT Larry Newsom lnewsom@krcl.com 5/31/2022 5:00:45 PM SENT Jason M.Ciofalo jason@cioofalolaw.com 5/31/2022 5:00:45 PM SENT Harris Wells hwells@reynoldsfrizzell.com 5/31/2022 5:00:45 PM SENT Solace Southwick ssofuthwick@reynoldsfrizzell.com 5/31/2022 5:00:45 PM SENT E. MarieJamison jamison@wrightclosebarger.com 5/31/2022 5:00:45 PM SENT Todd Taylor pttaylor@jandflaw.com 5/31/2022 5:00:45 PM SENT Raul Herman Suazo 24003C021 suazo@mdjwlaw.com 5/31/2022 5:00:45 PM SENT Kevin Graham Cain 24a01l2371 cain@mdjwlaw.com 5/31/2022 5:00:45 PM SENT Jessica Z.Barger barger@wrightclosebarger.com 5/31/2022 5:00:45 PM SENT Chris C.Pappas o cpappas@krcl.com 5/31/2022 5:00:45 PM SENT Todd Taylor U ttaylor@jandflaw.com 5/31/2022 5:00:45 PM SENT David R.Wade lawyerwade@hotmail.com 5/31/2022 5:00:45 PM SENT Katie Budinsky kbudinsky@krcl.com 5/31/2022 5:00:45 PM SENT Scott M.Favre scott@favrepa.com 5/31/2022 5:00:45 PM SENT Lance Kassab eserve@kassab.law 5/31/2022 5:00:45 PM SENT Murray Fogler mfogler@fbfog.com 5/31/2022 5:00:45 PM SENT Kathryn Laflin KLaflin@KRCL.com 5/31/2022 5:00:45 PM SENT

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