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34 2022-09-12 RSP Kassab Kassab’s response to Pohl no-evid MSJ Kassab's Response to Pohl's Motion for Partial Traditional and No-Evidence Summary Judgment on Affirmative Defenses — opposes Pohl's attempt to eliminate Kassab's affirmative defenses of justification, unclean hands, illegality, unlawful acts, criminal acts, and in pari delicto, and challenges Pohl's global no-evidence motion as procedurally defective under Timpte Industries v. Gish Phase 3 response brief filed September 12, 2022 (same day as Kassab's declaration, Filing #33). Responds to Pohl's motion seeking to eliminate Kassab's key affirmative defenses before trial. Incorporates by reference Kassab's own MSJs (June 8, 2021 and August 29, 2022, i.e. Filing #30), the Nicholson MSJ (August 19, 2022), and Nicholson's response to Pohl's motion (September 12, 2022). Addressed to Judge Scot 'Dolli' Dollinger. MSJ-3 N/A Phase 3 2022-09-12_RSP_Kassab-Response-to-Pohl-No-Evid-MSJ_FILED.pdf Deny Pohl's Motion for Partial Traditional and No-Evidence Summary Judgment on Affirmative Defenses; alternatively, grant continuance under Rule 166a(g) to allow completion of discovery on illegality defense; grant summary judgment against Plaintiffs ordering they take nothing on their claims against Kassab 9/12/2022 6:16 PM Marilyn Burgess - District Clerk Harris County Envelope No. 68179652 By: Deandra Mosley Filed: 9/12/2022 6:16 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 DEFENDANTS’ RESPONSE TO PLAINTIFFSC’ MOTION FOR PARTIAL TRADITIONAL AND NO-EVIDENCE SUMMARY JUDGMENT TO THE HONORABLE JUDGE SCOT “DOLLI” DOLLINGEtR: Defendants, Lance Christopher Kassab and Lance Christopher Kassab, P.C. d/b/a/ The Kassab Law Firm (“Kassab”) file this, theeir Response to Plaintiffs’ Motion for Partial Traditional and No-Evidence Suummary Judgment on Affirmative Defenses,1 and would respectfully show the following. INTRaODUCTION Pohl2 committed illegal and unethical barratry and he wants Kassab, who brought the barratry litigation aend grievances against Pohl on behalf of more than four hundred (400) of Pohl’fs illegally solicited clients, to pay for Pohl’s barratry defense costs. But Pohl’s claims are barred for several reasons, including based on several affirmative defenses. Pohl has filed the instant Motion, seeking partial traditional summiary judgment on the affirmative defenses of justification, unclean hands, illegoality, and unlawful acts. However, Pohl has not negated those defenses as a matter of law. As to the other defenses, Pohl attempts to dispose of them through a global and conclusory no-evidence challenge, which is insufficient. 1 The self-serving title of the pleading is “Plaintiffs’ Motion for Partial Summary Judgment on Defendants’ Affirmative Defenses that Seek to Relitigate Failed Barratry Claims Against Plaintiffs and No-Evidence Motion on the Remaining Affirmative Defenses.” 2 This refers collectively to Plaintiffs Michael A. Pohl and Law Office of Michael A. Pohl, PLLC. Regardless, Kassab can demonstrate, either here or in incorporated summary judgment briefing, that each of the defenses applicable to him apply, and that evidence supports each of them. Accordingly, the Motion should be in all things denied. k GENERAL OBJECTION C Pohl inappropriately suggests that all barratry suits were resolved on the merits. That is incorrect. One of the lawsuits – the Berry caise – was settled,3 which suggests that the case had merit. Another lawsuit – the Cheatham case – was initially dismissed on summary judgment but recently reversed because fact issues existed on whether Pohl and his co-counsel committed barratry. See Cheatham v. Pohl, No. 01-20-00046-CV, 2022 Tex. Appl. LEXIS 6528 (Tex. App.—Houston [1st Dist.] Aug. 30, 2022, no pet. h.). TheM other two lawsuits – Brumfield and Gandy – were dismissed, not on the merits, but on the affirmative defense of limitations. See Brumfield v. Williamson, 634 iS.W.3d 170, 177 (Tex. App.—Houston [1st Dist.] 2021, pet. denied) and Gandy v. Williamson, 634 S.W.3d 214 (Tex. App.—Houston [1st Dist.] 2021, pet. denoied). “An affirmative defense presents a situation where a plaintiff cannot relcover even if his claims are true because of some other fact that the defendant ihas pled as a bar.” Man Engines & Components, Inc. v. Shows, 434 S.W.3d 132, 137 (Tex. 2014), In other words, none of the barratry suits have been adjudicated on the merits, and neither has the issue of whether Pohl committed barratry. 3 Exhibit 1, September 12, 2022 Declaration of Lance Kassab at ¶ 14. Kassab incorporates and adopts by reference all evidence and argument in his Traditional Motion for Summary Judgment filed on August 29, 2022. See TEX. R. CIV. P. 58. Kassab also incorporate all evidence and argument in the Traditional Motion for Summary Judgment filed by Tina Nicholson and Baker Nikcholson, LLP (“Nicholson”) on August 19, 2022, as well as Nicholson’s responsCe to Pohl’s Motion filed September 12, 2022, to the extent that response is applicable to Kassab. The combined evidence and argument of all those documents diemonstrate conclusively that Pohl committed barratry and unauthorized practice of law, which bars him from recovery in this retaliatory lawsuit. RESPONSE TO TRADITIONAL SUMMARY JUDGMENT A. Justification is a valid laffirmative defense to Pohl’s claims. a Kassab has asserted the affirmative defense of justification.4 Pohl contends that justification “is not a defenese to any of Pohl’s claims.”5 Of course, Pohl fails to support this statement with fany authority. Rather, he contends that justification “is an affirmative defense to a claim of tortious interference with contract.”6 But just because the defense is commonly applied to one type of claim does not mean, as Pohl contends, that iti is “not a recognized defense” to other types of claims, such as theft of trade secorets, conversion or conspiracy.7 In fact, the defense of justification has been applied outside the context of tortious interference to anti-trust claims. See Money Masters, Inc. v. TRW, Inc., No. 05-98-02017-CV, 2003 Tex. App. LEXIS 622, 4 See Kassab’s Sixth Amended Answer, at ¶ 15(2). 5 Mot. at 2. 6 Mot. at 3. 7 Mot. at 3. at *17 (Tex. App.—Dallas Jan. 23, 2003, pet. denied) (mem. op.). And, Texas courts have considered the defense in relation to theft of trade secrets. See Lamont v. Vaquillas Energy Lopeno, Ltd., 421 S.W.3d 198, 220 (Tex. App.—San Antonio 2013, pet. denied) (determining whether evidence supported defense of jukstification to claim that seismic map of a gas prospect constituted a tradCe secret and was acquired through improper means). Accordingly, Pohl has failed to demonstrate that the defense of justification is inapplicable as a matter iof law. Pohl argues that even if the defense applies, Kassab and Nicholson cannot show that “Pohl took any action against them or that involved them before they committed the torts that form the basis of Pohl’s claim.”8 But Pohl misunderstands the nature of the justification defense, andl the factual basis giving rise to it. Justification can be based on Mthe exercise of either (1) the party’s own legal rights or (2) the party’s good faith claim to a colorable right, even though the claim ultimately proves to be mistakien. Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 211 (Tex. 1996). When the party conclusively establishes it had a legal right to engage in the complained-of oconduct, the party's motive for engaging in that conduct is irrelevant. Id. l Here, Kiassab was justified in obtaining the information that Pohl contends is his purported trade secrets. The information was obtained by Kassab as part of his investigation and ultimate pursuit of barratry claims against Pohl on behalf of hundreds of clients.9 Kassab concluded, based on discussions he had with and 8 Mot. at 3. 9 Exhibit 1, September 12, 2022 Declaration of Lance Kassab at ¶¶ 5-8. documents obtained from Scott Favre, the owner of Precision Marketing, that the information was owned by Precision Marketing, and not Pohl.10 In fact, Favre testified that Precision Marketing owned the information, including client lists and files the company acquired while soliciting clients,11 and shared wkith Kassab a purchase agreement demonstrating that Favre was the owner oCf that information through his purchase of Precision Marketing.12 Kassab had a legal right to acquire evidence to supiport the barratry claims that would be made against Pohl on behalf of his clients without making himself liable. See Taylor v. Tolbert, 644 S.W.3d 637, 647 (Tex. 2022) (“lawyers must be able to pursue legal rights they deem necessary and proper for their clients without the menace of civil liability looming over theml and influencing their actions.”). And in carrying out that lawyerly duty, KasMsab had the right and obligation to investigate the potential claims against Pohl or risk sanctions for not investigating the claims. See TEX. R. CIV. P. 13. Kassaib was also justified in obtaining the information to report Pohl to the State B ar of Texas, which he did.13 See TEX. DISC. R. PROF’L COND. 8.03 (“a lawyer havinog knowledge that another lawyer has committed a violation of applicable rules ofl professional conduct that raises a substantial question as to that lawyer's honesity, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate disciplinary authority.”); TEX. R. DISC. PROC. 17.09 (“No lawsuit may be instituted against any Complainant or witness predicated upon the 10 Exhibit 1, September 12, 2022 Declaration of Lance Kassab at ¶¶ 8. 11 Exhibit 2, Affidavit of Scott Favre. 12 Exhibit 3, Purchase Agreement. 13 Exhibit 4, October 2018 Declaration of Lance Kassab, at p. 2; Exhibit 5, Grievance Complaint. filing of a Grievance or participation in the attorney disciplinary and disability system.”). Under these circumstances, there are genuine issues of material fact as to whether Kassab was justified in the actions that he took. k B. Kassab may assert unclean hands as a defensCe because Pohl seeks equitable relief.  Kassab asserts unclean hands as a defense becauset Pohl seeks injunctive relief and attorney’s fees as damages under the Texas Uniform Trade Secrets Act (“TUTSA”). To the extent Pohl is permitted to seeke attorney’s fees as damages, his unclean hands bar him from recovering under suuch an equitable exception. Pohl’s summary judgment is based on the false premise that he “does not seek equitable relief.”14 That contentioan is rebutted by Pohl’s own pleadings. Pohl has pursued claims under TUTSA, which requires a person claiming ownership of a trade secret to demonstrate “legeal, or equitable” title to the information. See TEX. CIV. PRAC. & REM. CODE §f 134A.002(3-a) (emphasis added). Additionally, “Pohl seeks injunctive relief”15 and it is well-established that “[i]njunctive relief is an equitable remedy.” Fetter v. Wells Fargo Bank Tex., N.A., 110 S.W.3d 683, 688 (Tex. App.—Houiston [14th Dist.] 2003, no pet.) (emphasis added). Moreover, Pohl’s conclusion roequests “other and further or alternative relief (legal and equitable) to which Pohl may be entitled,”16 for all of his causes of action. Because Pohl is seeking equitable relief, he “must come into court with clean hands.” Fetter, 110 S.W.3d at 14 Mot. at 4. 15 See Pohl’s First Amended Petition, at ¶ 45. 16 Pohl’s First Amended Petition, at ¶ 50 (emphasis added). 688. Pohl’s contention that unclean hands is not a valid affirmative defense fails as a matter of law. C. Illegality. 1. Objection to Pohl’s lack of supporting evidencke. Kassab objects to Pohl’s lack of evidence supporting his traCditional summary judgment motion as to illegality. Pohl asserts that illegality does not apply because it “is not part of a document,” and he “engaged in ‘illegal aicts” long before” Kassab allegedly wronged Pohl.17 Pohl then incorrectly implies that his acts of barratry “[have] largely been adjudicated” on the merits.18 That is untrue, as demonstrated above. Pohl also asserts that his “claims do not seek to enforce any illegal contract or other illegal action.”19 But Pohl prlovides no evidence in support of his statements, and “motions and argumMents of counsel are not evidence.” Johnson v. Scott, 113 S.W.3d 366, 373 (Tex. App.—Beaumont 2003, pet. denied). It is telling that Pohl is unwilling to sweair to any of these facts in an affidavit. Kassab objects to Pohl’s lack of summary judgment evidence. 2. Poohl has not negated the illegality defense. Pohl arguesl that the illegality defense “is not a defense” to his claims, “and even if it werei, it would not be available here.”20 Of course, Pohl does not cite any case precluding the use of the illegality defense in claims arising from barratry. This is because the defense has commonly been applied to bar claims stemming 17 Mot., at 4. 18 Mot., at 4-5. 19 Mot., at 5. 20 Mot., at 4. from barratry. See Luong v. McAllister, No. 01-17-00198-CV, 2018 Tex. App. LEXIS 5998, at *9 (Tex. App.—Houston [1st Dist.] Aug. 2, 2018, pet. denied) (contract between law firm and non-lawyer to solicit clients in exchange for share of attorney’s fees was void due to illegality); Plumlee v. Paddock, 832 S.Wk.2d 757, 760 (Tex. App.—Fort Worth 1992, writ denied) (refusing equitable relCief where owner of ambulance company had no basis to recover under fee-sharing agreement with attorney without reliance on unlawful barratry agreemenit). And Pohl’s lawyers are well aware of this doctrine. They recently used the illegality defense to obtain summary judgment on a legal malpractice claim brought by an investor who gave an attorney money in exchange for a share of attorneys’ fees from the BP litigation. See Duncan Litig. Invs., LLC vl. Baker, Donelson, Bearman, Caldwell & Berkowitz, No. 4:19-CV-3094, 2022 UM.S. Dist. LEXIS 147005, at *24-30 (S.D. Tex. 2022). Moreover, as demonstrated in the summary judgment briefing on file with the Court, Pohl and his lawyeirs in the Mississippi Litigation also used the illegality defense to Precisions Marketing’s claims against Pohl for failing to pay Precision Marketing for referrinog thousands of BP cases. The illegalitly defense applies here. To sustain his claims, Pohl must establish a right to thei property he claims was misappropriated. The first element of a TUTSA claim violation is that the plaintiff owned a trade secret. TEX. CIV. PRAC. & REM. CODE §§ 134A.002(1), (3), (6), 134A.004(a). The statute defines “owner” to mean “the person or entity in whom or in which rightful, legal, or equitable title to” the trade secret. Id. at § § 134A.002(3-a). Because Pohl obtained the alleged trade secret information illegally, through barratry and the unauthorized practice of law, he necessarily does not have “rightful, legal, or equitable title” to the information. Accordingly, Pohl’s illegal conduct necessarily negates his TUTSA claim. Likewise, although common-law claims for conversion and conkspiracy are preempted by TUTSA, Pohl would have to establish that hCe owned or had possession of the property or entitlement to possession. See Freezia v. IS Storage Venture, LLC, 474 S.W.3d 379, 386-87 (Tex. App.—Houstion [14th Dist.] 2015, no pet.). Because Pohl’s claims rest on information acquired through illegal contracts, Kassab can sustain an affirmative defense of illegality against Pohl. Pohl provides a string cite of unrelated authority to improperly suggest that illegality cannot be a defense in this casel. But none of the cases cited by Pohl are relevant to the facts of this case or dMiscuss the interaction of the illegality defense and the unlawful acts doctrine. See Phila. Indem. Ins. Co. v. White, 490 S.W.3d 468, 483 (Tex. 2016) (in unrelated ilandlord tenant case); Lewkowicz v. El Paso Apparel Corp., 625 S.W.2d 301, 303 (Tex.1981) (holding that illegal actions concerning leather production anod improper jailing in Mexico violate the public policy of Texas); Niles v. Harris Colunty Fresh Water Supply Dist., 339 S.W.2d 562, 563 (Tex. Civ. App.—Waco 19i60, writ ref’d) (affirming pleading of illegality was unnecessary over water supply where the contract was illegal on its face); Reid v. Associated Employers Lloyds, 164 S.W.2d 584, 585–586 (Tex. Civ. App.—Fort Worth 1942, writ ref’d) (whether illegality must be affirmatively asserted as a defense to worker’s compensation claim originating from unlading a keg of beer); Montgomery Ward & Co. v. Lusk, 52 S.W.2d 1110 (Tex. Civ. App.—Waco 1932, writ ref’d) (whether contract requiring work for more than 9 hours a day violated a statute); Texas & P. Coal Co. v. Lawson, 89 Tex. 394, 34 S.W. 919, 921 (1896) (concerning the legality of a contract for the sale of liquor). k Accordingly, this Court should deny Pohl’s traditional moCtion for summary judgment on illegality as unsupported by law or fact. D. Unlawful acts, criminal acts, and in pari dielicto. 1. Objection to Pohl’s lack of supporting evidence. Kassab again objects to Pohl’s lack of evidence supporting his traditional motion for summary judgment as to unlawful acts, criminal acts or in pari delicto. Pohl asserts that “criminal acts,” “unlawlful acts,” and “in pari delicto” does not apply because “(1) Pohl’s actions hMave been largely adjudicated and were not ‘admittedly’ criminal or unlawful; and (2) even if a fact issue remained regarding the legality of Pohl’s acts, anyi wrongful act is not sufficiently tied to Pohl’s claims here to give rise to a defense.”21 But Pohl’s barratry and unauthorized practice of law in other states hoave not been disposed of on the merits. Instead, Pohl’s sole evidence supportilng his motion is that “Pohl can certainly demonstrate the elements of eaich of his claims without being required to prove any illegal act.”22 And then he doesn’t—he provides no evidence whatsoever. Pohl is not even willing to swear under oath that he did not commit barratry. Accordingly, Kassab objects to Pohl’s lack of summary judgment evidence. 21 Mot., at 5. 22 Mot., at 6. 10 2. Kassab established that Pohl’s unlawful acts, criminal acts and the doctrine of in pari delicto preclude Pohl’s claims in prior summary judgment briefing, which is incorporated herein. In his Traditional Motion for Summary Judgment filed on August 29, 2022, Kassab demonstrated that Pohl’s unlawful acts, criminal acts and thee in pari delicto doctrines preclude Pohl’s claims as a matter of law. Kassab incorporates that argument and evidence as if set forth verbatim herein. Kassatb also incorporates the argument and evidence relating to the unlawful acts doctrine (including illegal or criminal acts or in pari delicto) set forth on pages e9-14 of Nicholson’s Response to Plaintiffs’ Traditional and No-Evidence Motionu for Summary Judgment, filed on September 12, 2022. In short, the Unlawful Acts ruale provides that “[i]f, at the time of the plaintiff’s injury, the plaintiff was engaged in an illegal act, and that act contributed to the injury, he may not recoveer.” Andrew Shebay & Co., P.L.L.C. v. Bishop, 429 S.W.3d 644, 648–49 (Tex. fApp.—Houston [1st Dist.] 2013, pet. denied). The summary judgment evidence on file with the Court demonstrates that Pohl violated Texas rules and laws governing lawyers by illegally soliciting clients, splitting fees with a non-lawiyer, and failing to protect confidential client information. Pohl’s former clienots then sued him for his barratry, and Pohl now seeks to recover fees from defending his barratry.23 In sum, if Pohl had not been violating the law and disciplinary rules by procuring the purported trade secret information through 23 In addition, Kassab attaches the expert reports from Lillian Hardwick (Exhibit 6), Benjamin Cooper (Exhibit 7), and Joseph F. Cleveland, Jr. (Exhibit 8), which detail and explain why the evidence in the summary judgment record establishes that Pohl committed barratry and other unlawful acts which preclude his claims. 11 illegal and unethical means, he would not have been sued for barratry. The very purpose of the doctrine is to make sure “that [Pohl] should not even entertain the hope of indemnity for the offense committed.” Houston Ice & Brewing Co. v. Sneed, 63 Tex. Civ. App. 17, 21, 132 S.W. 386, 388 (1910, writ dism’d) (holdinkg that one of two parties involved in the illegal sale of alcohol could not Csue the other for misrepresentation). Moreover, the First Court of Appeals has opined thait Pohl’s acts, if true—and they are true—are illegal and preclude summary judgment. In the Cheatham case, the court of appeals concluded that the same Walker deposition testimony as here on the same allegations24 are “some evidence” that “Pohl and [his co-counsel] coordinated the barratry scheme” and “thlat Pohl directly funded, and his wife and her company further funded, the solMicitation of prospective clients” and that “Pohl directed case runners to contact and solicit potential clients on his behalf, including offering money from Pohl’s fiirm and his wife’s company.” Cheatham, 2022 WL 3720139, at *8. This evidence defeated the summary judgment filed by Pohl’s co- counsel in the Cheathoam case, and is certainly enough to defeat it here. Accordinglyl, this court can apply these doctrines to deny recovery to Pohl for his illegal actis, even if the court holds that one or more defendants have also committed an unlawful act. See Dover v. Baker, Brown, Sharman & Parker, 859 S.W.2d 441, 443, 450-51 (Tex. App.—Houston [1st Dist.] 1993, no writ) (denying recovery to plaintiff who sued his attorney for malpractice claiming he signed a 24 Kassab attached Walker’s testimony as exhibits in his prior summary judgment motion, which is incorporated by reference herein. 12 false affidavit on the advice of his attorney who knew the affidavit was unlawful). This doctrine is not an “excuse” but a bar to Pohl bringing any claims that stem from his own illegal and wrongful actions. For these reasons, and those stated in the summary judgment bkriefing before the Court, summary judgment on the affirmative defenses of unlawCful acts, criminal acts and the in pari delicto should be denied. RESPONSE TO NO-EVIDENCE SUMMARY J DUiDGMENT A. Pohl’s global and conclusory no-evidence challenge is defective and should not be consideered. The no-evidence summary judgment rule uexplicitly requires Pohl to “state the elements as to which there is no evidence.” TEX. R. CIV. P. 166a(i) (emphasis added). “The motion must be specific ina challenging the evidentiary support for an element of a claim or defense; paragraph (i) does not authorize conclusory motions or general no-evideence challenges to an opponent’s case.” Timpte Indus. v. Gish, 286 S.W.3d 30f6, 310 (Tex. 2009) (emphasis added). Pohl’s no-evidence challenge violates this rule. His entire no-evidence argument is as follows: In additioin to the affirmative defenses set forth above, Defendants assert tihe following affirmative defenses, some of which were already consiodered and rejected by this Court and the court of appeals during consideration of the Defendant’s Motions to Dismiss under the Texas Citizens Participation Act: 1) Statute of limitations; 2) Estoppel; 3) Waiver; 4) Ratification; 5) Release; 6) Contribution; 7) Failure to mitigate; 8) Lack of standing; 9) Accord and Satisfaction; 10). Assumption of the Risk; 11) First Amendment; 12) Attorney Immunity; 13) Res Judicata; 14) Defect of Parties; 15) Abandonment; 16) Subject of a Valid Contract. Pohl is entitled to summary judgment pursuant to Rule 166a(i) because after an adequate time for discovery, the 13 Defendants have no evidence to support any of these affirmative defenses. This conclusory no-evidence challenge is insufficient as a matter of law. See Dean v. Aurora Bank, F.S.B., No. 01-15-00827-CV, 2016 Tex. App. LEXIS 13472, at *9 (Tex. App.—Houston [1st Dist.] Dec. 20, 2016, no pet.) (mem. op.) (e“A no-evidence summary judgment is insufficient as a matter of law if the motion is conclusory or fails to challenge a specific essential element of a cause of acttion for which the non- movant would have the burden of proof at trial.”). When a no-evidence motion for summary ejudgment, as here, does not challenge specific elements, it must be treatued as a traditional motion under 166a(c), which imposes the burden on the movant. Weaver v. Highlands Ins. Co., 4 S.W.3d 826, 829 n.2 (Tex. App.—Houstaon [1st Dist.] 1999, no pet.). As he provides no facts or law in support of his argument, Pohl has not met his burden to prove “there is no genuine issue as to aeny material fact and the moving party is entitled to judgment as a matter of la wf.” TEX. R. CIV. P. 166a(c); Hillis v. McCall, 602 S.W.3d 436, 439-40 (Tex. 2020). With Pohl not having met his burden, “the burden does not shift and [Kassab] need not respond or present any evidence.” Chavez v. Kansas City S. Ry. Co., 5i20 S.W.3d 898, 900 (Tex. 2017). Accordingly, the Court should deny Pohl’s purpoorted “no-evidence” motion. B. The court should deny Pohl’s “no-evidence” motion because Kassab can provide sufficient evidence and law to support his affirmative defenses. In his Traditional Motion for Summary Judgment filed June 8, 2021, Kassab established, as a matter of law, the defenses of limitations, res judicata, and 14 attorney immunity. Kassab incorporates that motion and the evidence attached thereto for all purposes herein. See TEX. R. CIV. P. 58. In the Traditional Motion for Summary Judgment filed on August 29, 2022, Kassab established, as a matter of law, the defenses of immunity pursuant to Texas Rule of Disciplinakry Procedure 17.09, the judicial proceedings privilege, attorney immunity, limCitations, and that Pohl’s claims are barred by illegal and unlawful acts. In that motion, Kassab also demonstrated that the alleged trade secret information is niot owned by Pohl, but by Precision Marketing or Pohl’s former clients, which demonstrates the lack of standing and defect of parties affirmative defenses. Kassab also incorporates that motion and the evidence attached thereto. See TEX. R. CIV. P. 58. In addition, Kassab incorporates bly reference and adopts the response to Pohl’s no-evidence motion for sumMmary judgment filed by the Nicholson on September 12, 2022 as to those defenses which apply equally to Kassab, including attorney immunity, limitationis, waiver, ratification and failure to mitigate. See TEX. R. CIV. P. 58. In addition, aos to the affirmative defense of standing or capacity and ownership of the lpurportedly confidential information, the recent depositions of Ladner and Wialker demonstrate that the information was Precision Marketing’s work product and owned by Precision Marketing, not Pohl. Ladner testified that “client information” was owned by Precision Marketing.25 Likewise, Walker testified that his company owned the client list and documents containing information about 25 Exhibit 9, August 29, 2022 Deposition of Kirk Ladner, at 44-45. 15 clients with potential cases.26 Walker agreed that the client information was Precision Marketing’s “work product.”27 Thus, Pohl does not have standing or capacity to sue Kassab, and there is a defect of parties to this litigation. As to the defense of assumption of the risk, Pohl assumed thek risk that his purported trade secret information would be stolen when he placCed it in the hands of Walker, a known convicted felon. Specifically, Walker pled guilty to “one count of federal program fraud and one count of conspiracy to icommit federal program fraud” because he “fraudulently diverted and misused both federal grants and money belonging to the State of Mississippi.”28 Pohl knew that Walker was a convicted felon.29 Yet, Pohl trusted Walker with his purported trade secrets, without requiring Walker to sign a confidentiality lagreement or non disclosure agreement.30 Pohl did not require these agreemeMnts because the alleged trade secrets are not trade secrets at all and Pohl has no ownership in the documents that are the subject of this lawsuit. Thus, Pohl aissumed the risk that Walker, a convicted felon who “diverted and misused” property belonging to the others, would divert and misuse Pohl’s purportedly coonfidential information, if in fact the alleged confidential information were hlis. The remiaining contract-related affirmative defenses of release, accord and satisfaction, estoppel do not apply to Kassab. But to the extent that they do, Kassab 26 Exhibit 10, August 31, 2022 Deposition of Scott Walker, at 250-251. 27 Exhibit 10, August 31, 2022 Deposition of Scott Walker, at 251. 28 https://archives.fbi.gov/archives/jackson/press-releases/2014/ocean-springs-businessman-pleads- guilty-to-federal-program-fraud. The Court is requested to take judicial notice of this official press release from the Federal Bureau of Investigation. 29 Exhibit 11, December 10, 2021 Deposition of Michael Pohl, at 104-105, 159-160. 30 Exhibit 11, December 10, 2021 Deposition of Michael Pohl, at 22-23, 159-161. 16 incorporates the argument and evidence set forth by Nicholson in her September 12, 2022 response to Pohl’s purported no-evidence challenge. ALTERNATIVE REQUEST FOR CONTINUANCE Texas Rule of Civil Procedure 166a(g) allows a continuance of kthe summary judgment hearing “to permit affidavits to be obtained or depositiCons to be taken or discovery to be had or may make such other order as is just.” T iEX. R. CIV. P. 166a(g). To the extent the evidence is insufficient to raise a fact iissue on the affirmative defense of illegality, Kassab objects and requests a continuance on the no-evidence motion because Pohl has unreasonably resisted Kassab’s request for discovery relating to that defense. Pohl’s resistance prompted Kassab lto file his Motion to Compel Removal of Pohl’s Objections and Properly RespMond to Discovery on August 25, 2022. Kassab incorporates that motion as if set forth verbatim herein and asks the Court to take judicial notice of it. See TEX. Ri. CIV. P. 58. As set forth in the motion to compel, Pohl has refused to answer relevant and material discovery relating to his involvement in the illegal barratroy scheme, which is discovery going to the heart of Kassab’s illegality defense. lSpecifically, that discovery will aid in establishing that all of Pohl’s purportiedly trade secret information was derived through illegal or unethical conduct, such as barratry and the unauthorized practice of law. Kassab used diligence in attempting to obtain this relevant discovery. Kassab served the discovery requests beginning in May of 2021.31 Pohl amended his 31 See Motion to Compel, at Exhibit 1. 17 discovery responses through October 2021.32 Kassab attempted to seek additional information and clarify or elaborate on certain discovery requests in later sets of discovery, served September 2021 and December 2021.33 Pohl responded to that discovery into January 2022.34 Over the course of the following moknths, Kassab reviewed the discovery requests and then attempted to confer wiCth Pohl about the discovery deficiencies. But Pohl refused to amend his discovery and produce responsive information,35 thus necessitating the motion to ciompel. Pohl cannot simultaneously withhold relevant discovery concerning his illegal acts while, at the same time, move for summary judgment on illegality. See Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 145 (Tex. App.— Houston [14th Dist.] 2000, pet. denied) (“A party should nlot be able to abuse the discovery process, withhold key evidence from their oppMonents, and then use that lack of evidence to win a judgment.”). Accordingly, a continuance of the summary judgment hearing (and trial) should be granted iuntil after the motion to compel is heard and Pohl is compelled to produce the improperly withheld information. See McInnis v. Mallia, 261 S.W.3d 197, 204 o(Tex. App.—Houston [14th Dist.] 2008, no pet.) (the fact that movant “withheldl information in discovery” is a factor that weighed “in favor of” permitting addiitional time for discovery); Tempay, Inc. v. TNT Concrete & Constr., Inc., 37 S.W.3d 517, 522-23 (Tex. App. – Austin 2001, pet. denied) (holding that the trial court abused its discretion in determining that adequate time for discovery had 32 See Motion to Compel, at Exhibit 2 and 3. 33 See Motion to Compel, at Exhibit 4 and 5. 34 See Motion to Compel, at Exhibit 7. 35 See Motion to Compel, at Exhibit 9. 18 passed because movant successfully resisted nonmovant's attempts to obtain discovery). CONCLUSION & PRAYER For the foregoing reasons, the Court should deny Plaintiffs’ Motikon for Partial Traditional and No-Evidence Summary Judgment on AffirmatCive Defenses and grant summary judgment against Plaintiffs, ordering that they take nothing on their claims against Lance Christopher Kassab and The Kaissab Law Firm. Respectfully submitted, THE KASSAB LAW FIRM __________________________ lDAVID ERIC KASSAB a Texas State Bar No. 24071351 M david@kassab.law  LANCE CHRISTOPHER KASSAB Texas State Bar No. 00794070 e lance@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 DEFENDANTS 19 CERTIFICATE OF SERVICE I certify that on this date, September 12, 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. ___________________C____ DAVID ERIC KASSAtB  20 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: 68179652 r Status as of 9/13/2022 8:03 AM CST Case Contacts Name BarNumber Email sTimestampSubmitted Status Solace Southwick ssouthwick@reynoldsfrizzell.com 9/12/2022 6:16:47 PM SENT Zandra EFoley zfoley@thompsoncoe.com r 9/12/2022 6:16:47 PM SENT Andrew Johnson ajohnson@thompsoncoe.com 9/12/2022 6:16:47 PM SENT Andrew J. Sarne asarne@krcl.com 9/12/2022 6:16:47 PM SENT Benjamin Ritz britz@thompsoncoe.conm 9/12/2022 6:16:47 PM SENT Kathryn Laflin KLaflin@KRCL.com 9/12/2022 6:16:47 PM SENT Murray JFogler mfogler@foglerbrrar.com 9/12/2022 6:16:47 PM SENT Murray Fogler mfogler@fbfog.com 9/12/2022 6:16:47 PM SENT Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 9/12/2022 6:16:47 PM SENT Larry Newsom lnewsom@fkrcl.com 9/12/2022 6:16:47 PM SENT Jason M.Ciofalo jason@ciofalolaw.com 9/12/2022 6:16:47 PM SENT Chris C.Pappas cpappas@krcl.com 9/12/2022 6:16:47 PM SENT Todd Taylor titaylor@jandflaw.com 9/12/2022 6:16:47 PM SENT Harris Wells fhwells@reynoldsfrizzell.com 9/12/2022 6:16:47 PM SENT Todd Taylor ttaylor@jandflaw.com 9/12/2022 6:16:47 PM SENT Lawyer Wade y lawyerwade@hotmail.com 9/12/2022 6:16:47 PM SENT Scott M.Favre scott@favrepa.com 9/12/2022 6:16:47 PM SENT Andrea Mendez C andrea@kassab.law 9/12/2022 6:16:47 PM SENT Lance Kassab  lance@kassab.law 9/12/2022 6:16:47 PM SENT David Kassab a david@kassab.law 9/12/2022 6:16:47 PM SENT Nicholas Pierce c nicholas@kassab.law 9/12/2022 6:16:47 PM SENT Dale Jefferson f i 10607900 jefferson@mdjwlaw.com 9/12/2022 6:16:47 PM SENT Raul Herman Suazo o 24003021 suazo@mdjwlaw.com 9/12/2022 6:16:47 PM SENT Kevin Graham Cain 24012371 cain@mdjwlaw.com 9/12/2022 6:16:47 PM SENT Murray J. Fogler 7207300 mfogler@foglerbrar.com 9/12/2022 6:16:47 PM SENT L Kassab lance@kassab.law 9/12/2022 6:16:47 PM SENT Murray J. Fogler 7207300 mfogler@foglerbrar.com 9/12/2022 6:16:47 PM SENT Misty Davis mdavis@reynoldsfrizzell.com 9/12/2022 6:16:47 PM SENT Non-Party Witness Billy Shepherd bshepherd@spcounsel.com 9/12/2022 6:16:47 PM SENT Deidre Hicks GWS_GROUP@spcounsel.com 9/12/2022 6:16:47 PM SENT E. MarieJamison jamison@wrightclosebarger.com 9/12/2022 6:16:47 PM SENT Jessica Z.Barger barger@wrightclosebarger.com 9/12/2022 6:16:47 PM SENT Katie Budinsky kbudinsky@krcl.com 9/12/2022 6:16:47 PM ERROR D Kassab david@kassab.law 9/12/2022 6:16:47 PM SENT

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