filings: 32

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filing_id date doc_type party description doc_type_detail procedural_posture chain outcome phase filename relief_requested full_text
32 2022-09-06 MTA Kassab Motion to Abate Trial Kassab's Motion to Abate Trial Setting pending resolution of the related Cheatham v. Pohl barratry case, which was reversed on appeal August 30, 2022 and remanded for further proceedings Phase 3 procedural motion filed one week after the Traditional MSJ and Seventh Amended Answer. Kassab argues trial should be abated because the still-pending Cheatham case will determine the full extent of Pohl's alleged damages and may establish Pohl's barratry, which would bar his claims entirely. Addressed to Judge Scot 'Dolli' Dollinger. Counsel for Plaintiffs (Jean Frizzell) opposed. MTA-1 N/A Phase 3 2022-09-06_MTA_Kassab-Mtn-to-Abate-Trial_FILED.pdf Abate the trial setting in this case pending the resolution of the Cheatham v. Pohl barratry case 9/6/2022 8:41 AM Marilyn Burgess - District Clerk Harris County Envelope No. 67958716 By: Deandra Mosley Filed: 9/6/2022 8:41 AM 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 DEFENDANTS’ MOTION TO ABATE TRIACL SETTING TO THE HONORABLE JUDGE SCOT “DOLLI” DOLLINGER: Defendants/Counter-Plaintiffs Lance Christopheir Kassab and Lance Christopher Kassab, P.C. d/b/a/ The Kassab Law Firm files this, Motion to Abate Trial Setting, and would respectfully show the following. BACKGROUND Lance Kassab and his firm were hlired by more than 400 of Michael Pohl’s former clients to sue Pohl and othersM for barratry – the illegal solicitation of clients. Kassab v. Pohl, 612 S.W.3d 571, 575 (Tex. App.—Houston [1st Dist.] 2020, pet. denied). Kassab field four sieparate lawsuits against Pohl, two of which Pohl successfully dismissed on limitations. See Brumfield v. Williamson, 634 S.W.3d 170, 177 (Tex. App.—Houoston [1st Dist.] 2021, pet. denied) and Gandy v. Williamson, 634 S.W.3d 214 (Tlex. App.—Houston [1st Dist.] 2021, pet. denied). Another of the cases settled, iwith Pohl paying a substantial sum of money to Kassab and his clients. The fourth case – the Cheatham case – was dismissed by the trial court but recently reversed by the Houston Court of Appeals and remanded for further proceedings. See Cheatham v. Pohl, No. 01-20-00046-CV, 2022 Tex. App. LEXIS 6528, at *1 (Tex. App.—Houston [1st Dist.] Aug. 30, 2022, no pet. h.). In retaliation, Pohl filed this litigation against Kassab and others, alleging specious claims for conversion and misappropriation of trade secrets.1 Specifically, Pohl alleges that the runners he hired to commit the barratry “gained access to [Pohl’s] confidential and proprietary information and property, inckluding trade secret materials” and “work product” and “illegally misapCpropriated” that information and then allegedly “secretly sold [it] to Kassab”2 who then “solicited clients/prospective clients [of Pohl’s] to act as [p]laintiffs . i. . to bring cases against Pohl for alleged barratry and other claims.”3 Pohl seeks as damages “costs and expenses of serial litigations” that Kassab filed against Pohl, including “[a]ny fees [and] any expenses [Pohl] had, hotel rooms, long-distance phone calls, copy costs” – “[Pohl] intend[s] to sue Mr. Kassab for all olf it.”4 RGUMENT Pohl has no basis to obtain attorney’s fees and expenses incurred by Pohl in the underlying barratry litigaition when Pohl never requested and was not entitled to recover those fees. But since Pohl asserts that he can, then the extent of Pohl’s alleged damages are onot yet known because the Cheatham case is still ongoing. In fact, the outcome olf Cheatham could result in a judgment against Pohl for barratry, which will deifinitively establish Kassab’s illegality, unclean hands and other affirmative defenses. In that case, Pohl would be entitled to no damages from Kassab. Rather, Kassab would be entitled to attorney’s fees from Pohl in addition to 1 See Pohl’s First Amended Petition (on file with the Court) (“Petition”), 2 Petition, at ¶¶ 20-21. 3 Petition, at ¶ 29. 4 Exhibit 1, December 2021 Deposition of Michael Pohl, at 121. the disgorgement of Pohl’s fees and expenses in the underlying cases. Thus, for the reasons stated below, the Court should exercise its discretion and abate the trial of this case until the Cheatham case is finally resolved. See Kallinen v. City of Hous., 462 S.W.3d 25, 28 (Tex. 2015) (a court may decide, exercising sound kdiscretion, to abate proceedings to await a relevant ruling from another proceedCing). The case In re Tex. Collegiate Baseball League, Ltd., 367 S.W.3d 462 (Tex. App.—Fort Worth 2012, no pet.) demonstrates why abatemient is required. There, a client sued its attorney to enforce a settlement agreement concerning legal fees that the attorney claimed he was owed. Id. at 464. The attorney counterclaimed for attorney’s fees. Id. The client amended its pleadings to assert malpractice against the attorney and then sought to abate lthe case pending the resolution of the underlying litigation from which the Mmalpractice and fee claims arose. Id. The trial court denied the motion to abate, and the client filed a petition for writ of mandamus. Id. The court of aippeals agreed, and conditionally granted mandamus relief. It agreed that if the malpractice and fee claims were not abated, the parties would be required too pursue claims “for which their alleged damages are not yet known.” Id. at 46l5. The court of appeals reasoned that the “damage theories will remain fluid uintil the [underlying] litigations conclude.” Id. at 468. The court of appeals believed it made “little sense” for the parties to “prepare for trial concerning the fee claim” when the underlying litigation giving rise to the fee claim was still pending. Id. Here too it makes “little sense” for the parties to prepare for and proceed to trial without knowing the full extent of Pohl’s alleged damages, if any, stemming from the still-pending Cheatham case. Just as in Tex. Collegiate Baseball, the extent of Pohl’s alleged damages are not yet known and remain fluid unktil the final resolution of the Cheatham case. Accordingly, the Court would aCbuse its discretion by declining to abate the trial of this matter until after the Cheatham case is resolved. See Tex. Collegiate Baseball, 367 S.W.3d at 468-69i. Moreover, the Cheatham case will have a substantial impact on whether Pohl can recover anything because of his illegal and other conduct. In Cheatham, two groups of clients sued Pohl and his co-counsel Robert Ammons for barratry after the clients were illegally and unethically soliclited. 2022 Tex. App. LEXIS 6528, at *2-3. The trial court granted no-evidence aMnd traditional summary judgment in favor of Pohl and Ammons. Id. at *4-5. But the court of appeals reversed, concluding that the clients “presented more thian a scintilla of evidence to support their allegations” of barratry, rendering summary judgment improper. Id. at *17 n. 7. That evidence included proof that “Poohl and Ammons coordinated the barratry scheme” and “that Pohl directly fundled, and his wife and her company further funded, the solicitation of prospective iclients” and that “Pohl directed case runners to contact and solicit potential clients on his behalf, including offering money from Pohl’s firm and his wife's company.” Id. at *17. If the Cheatham plaintiffs establish these barratry claims against Pohl, then Pohl cannot be permitted to recover any damages arising from his unlawful conduct. See Andrew Shebay & Co., P.P.L.C. v. Bishop, 429 S.W.3d 644, 648 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) (“Texas public policy prohibits a plaintiff from recovering damages from his own illegal acts.”). Accordingly, the outcome of the Cheatham case will have a direct impact on Kassab’s illegality and other defenses, and Pohl’s ability to recover in kthis case. For this reason too, abatement of the trial is required. See Tex. CollegCiate Baseball, 367 S.W.3d at 467 (abating case because defense to fee claim was “unripe” while underlying litigation was pending); U.S. Fire Ins. Co. v. Miillard, 847 S.W.2d 668, 673 (Tex. App.—Houston [1st Dist.] 1993, orig. proceeding) (requiring abatement of bad faith claims when they could be rendered moot by outcome of underlying contract proceedings). CONCLUSIONl & PRAYER For the foregoing reasons, the MCourt should grant this motion and abate the trial setting in this case pending the resolution of the Cheatham case. i Respectfully submitted, THE KASSAB LAW FIRM __________________________ l LANCE CHRISTOPHER KASSAB i Texas State Bar No. 00794070 i lance@kassab.law o DAVID ERIC KASSAB Texas State Bar No. 24071351 david@kassab.law NICHOLAS R. PIERCE Texas State Bar No. 24098263 nicholas@kassab.law 1214 Elgin Street Houston, Texas 77004 Telephone: 713-522-7400 Facsimile: 713-522-7410 E-Service: eserve@kassab.law ATTORNEYS FOR KASSAB PARTIES CERTIFICATE OF CONFERENCE k I certify that I conferred with Jean Frizzell, counsel for PlCaintiffs, and he is opposed to the relief requested in this motion.  _____________i__________ DAVID ERIC KASSAB CERTIFICATE OF SE u RVICE I certify that on this date, September 6, 2022, I electronically filed this document with the Clerk of the Court usinlg the eFile.TXCourts.gov electronic filing system which will send notification of suach filing to all parties or counsel of record. _______________________ e DAVID ERIC KASSAB 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 e Bar No. 24071351 C david@kassab.law t Envelope ID: 67958716 r Status as of 9/6/2022 8:47 AM CST Case Contacts Name BarNumber Email TimsestampSubmitted Status Solace Southwick ssouthwick@reynoldsfrizzell.com 9/6/2022 8:41:44 AM SENT Jean C.Frizzell jfrizzell@reynoldsfrizzell.com r9/6/2022 8:41:44 AM SENT Harris Wells hwells@reynoldsfrizzell.com 9/6/2022 8:41:44 AM SENT Todd Taylor ttaylor@jandflaw.com  9/6/2022 8:41:44 AM SENT Scott M.Favre scott@favrepa.com 9/6/2022 8:41:44 AM SENT Lawyer Wade lawyerwade@hotmail.coml 9/6/2022 8:41:44 AM SENT Lance Kassab eserve@kassab.law a 9/6/2022 8:41:44 AM SENT Murray JFogler mfogler@foglerbraMr.com 9/6/2022 8:41:44 AM SENT Murray Fogler mfogler@fbfog.com 9/6/2022 8:41:44 AM SENT Larry Newsom lnewsom@krcl.com 9/6/2022 8:41:44 AM SENT Jason M.Ciofalo jason@ciofaelolaw.com 9/6/2022 8:41:44 AM SENT Jessica Z.Barger barger@wrightclosebarger.com 9/6/2022 8:41:44 AM SENT Chris C.Pappas cpappafs@krcl.com 9/6/2022 8:41:44 AM SENT Todd Taylor ttaylor@jandflaw.com 9/6/2022 8:41:44 AM SENT Misty Davis mdavis@reynoldsfrizzell.com 9/6/2022 8:41:44 AM SENT Andrew Johnson oajohnson@thompsoncoe.com 9/6/2022 8:41:44 AM SENT Andrew J. Sarne Casarne@krcl.com 9/6/2022 8:41:44 AM SENT Kathryn Laflin  KLaflin@KRCL.com 9/6/2022 8:41:44 AM SENT Benjamin Ritz britz@thompsoncoe.com 9/6/2022 8:41:44 AM SENT Zandra EFoley zfoley@thompsoncoe.com 9/6/2022 8:41:44 AM SENT Dale Jefferson 10f607900 jefferson@mdjwlaw.com 9/6/2022 8:41:44 AM SENT Raul Herman Suazo n24003021 suazo@mdjwlaw.com 9/6/2022 8:41:44 AM SENT Kevin Graham CainU24012371 cain@mdjwlaw.com 9/6/2022 8:41:44 AM SENT D Kassab david@kassab.law 9/6/2022 8:41:44 AM SENT Murray J. Fogler 7207300 mfogler@foglerbrar.com 9/6/2022 8:41:44 AM SENT L Kassab lance@kassab.law 9/6/2022 8:41:44 AM SENT Murray J. Fogler 7207300 mfogler@foglerbrar.com 9/6/2022 8:41:44 AM SENT Katie Budinsky kbudinsky@krcl.com 9/6/2022 8:41:44 AM ERROR E. MarieJamison jamison@wrightclosebarger.com 9/6/2022 8:41:44 AM SENT

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