filings: 38

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filing_id date doc_type party description doc_type_detail procedural_posture chain outcome phase filename relief_requested full_text
38 2022-09-15 RSP Pohl Pohl’s response to MTA Plaintiffs' Response to the Kassab Defendants' Motion to Abate Trial Setting — opposes abatement of four-year-old case on eve of preferential trial setting, arguing future damages do not justify abatement and unlawful acts defense has been preempted Response filed September 15, 2022 by Jean C. Frizzell of Reynolds Frizzell LLP opposing Kassab's motion to abate the trial setting in a four-year-old case with a preferential trial setting. Incorporates by reference Pohl's September 12, 2022 responses to defendants' summary judgment motions. MTA-1 N/A Phase 3 2022-09-15_RSP_Pohl-Response-to-Kassab-MTA-Trial_FILED.pdf Deny Kassab's Motion to Abate Trial Setting and allow the case to proceed to trial during its current preferential trial setting 9/15/2022 5:08 PM Marilyn Burgess - District Clerk Harris County Envelope No. 68313271 By: Deandra Mosley Filed: 9/15/2022 5:08 PM CAUSE NO. 2018-58419 MICHAEL A. POHL AND LAW OFFICE § IN THE DISTRICT COURT OF OF MICHAEL A. POHL, PLLC, § Plaintiffs, § v. § k § e SCOTT FAVRE and SCOTT M. FAVRE PA, § C l LLC; PRECISION MARKETING GROUP, § 189TH JUDICIAL DISTRICT LLC; LANCE CHRISTOPHER KASSAB and § c LANCE CHRISTOPHER KASSAB, § r P.C. d/b/a THE KASSAB LAW FIRM; TINA § NICHOLSON and BAKER NICHOLSON, LLP § d/b/a BAKER NICHOLSON LAW FIRM; and § s DOUGLAS MONTAGUE III and MONTAGUE § PITTMAN & VARNADO, P.A., § g Defendants. § r HARRIS COUNTY, TEXAS PLAINTIFFS’ RESPONSE TO THE KASSAB DEFENDANTS’ MOTION TO ABATEy TRIAL SETTING Plaintiffs Michael Pohl and Law Officaes of Michael A. Pohl (collectively, “Pohl”) file this this response to Defendants Lance Christopher Kassab and Lance Christopher Kassab, P.C.’s (collectively, “Kassab”) Motion to Abeate Trial Setting (the “Motion to Abate”). Pohl requests that the Court deny Kassab’s Motion fto Abate and allow this four-year-old case to be tried during its current preferential trial settiyng—a trial setting that Kassab appears to be trying to avoid. Kassab argues Cthat this case should be abated for two reasons: (1) Pohl is still incurring damages; and (2) the outcome of a separate lawsuit—the Cheatham case—will impact Kassab’s illegality (unlafwfful acts doctrine) defense. Neither argument has merit. First, the existence of future daUmages does not justify abatement. For Pohl to recover future damages, he must satisfy the ordinary standard of showing to the jury that he will sustain those damages with reasonable probability. Second, Kassab’s unlawful acts defense has been preempted and does not apply—a defense Kassab acknowledged in another case is “no longer good law.” I. BACKGROUND1 Kassab’s campaign of lawsuits and bar grievances against Pohl can only be described as a failure. Kassab facilitated the filing of seven separate grievances with the Texas State Bar and four lawsuits—all based on Kassab’s theory that Pohl engaged in alleged barrkatrous conduct. Every grievance failed, often with a finding that Pohl’s alleged conduct ldid not constitute professional misconduct or a violation of the Texas Disciplinary Rules ocf Professional Conduct. Two of the lawsuits resulted in a final judgment on the merits in favosr of Pohl. In a third lawsuit, Pohl settled the lawsuit—not for the “substantial sum of money” alleged by Kassab—but instead for an amount less than the cost of defense. It is the fourth case, the Cheatham case, that Kassab’s Motion to Abate is concerned with. It is worth noting that although the Cheatham case is pending, the allegations asserted in that case are without merit. Like Kassab’s recycled barratry allegations in this lawsuit, many of the allegations of supposed barratry by Pohl in Cheatham were the subject of a grievance that Kassab helped file. The Office of ethe Chief Disciplinary Counsel for the State Bar of Texas dismissed the grievance after it hafd “examined the Grievance and determined that the information alleged does not demonstrayte Professional Misconduct or a Disability.”2 Kassab appealed the dismissal of the CheathCam grievance, and The Board of Disciplinary Appeals (which is appointed by the Texas Supreame Court) determined “that the conduct you described in the grievance does not violate the Tfexas Disciplinary Rules of Professional Conduct.”3 WUhen the Office of the Chief Disciplinary Counsel found that allegations involved in the Cheatham case did not “demonstrate Professional Misconduct,” the Cheatham case was on appeal 1 To avoid duplicative recitations of the factual background of this case, to the extent necessary, Pohl refers the Court to the factual background included in his September 12, 2022 responses to Defendants’ summary judgment motions. 2 See Feb. 24, 2020 Letter from State Bar of Texas: Office of the Chief Disciplinary Counsel, attached as Exhibit 1. 3 See May 14, 2020 Letter from The Board of Disciplinary Appeals, attached as Exhibit 2. following a final judgment in favor of Pohl.4 Recently, the court of appeals reversed the trial court, not because it found that barratry occurred, but because it believed the trial court erred in granting summary judgment on the basis of limitations and whether the barratry statute was impermissibly applied extraterritorially. See Cheatham, 2022 WL 3720139, at *9–10. Pohl is coknfident that this case—which involves “[t]wo sets of wrongful-death claimants” out of the “l10,000 or more of Pohl’s clients/prospective clients” whose information defendants cmisappropriated—will ultimately be resolved in Pohl’s favor. Id. at *1; Pohl’s First Amendesd Petition ¶ 21. Regardless, the outcome of the Cheatham case is not relevant to Pohl’s claimss or entitlement to damages. The relevance of that case is that the fees and expenses Pohl incurs in defending it are a component of Pohl’s actual damages in this lawsuit. II. DISyCUSSION Kassab presents two justifications for why abatement is necessary. First, he suggests that the fact that Pohl may continue to suffer damages in connection with defending the Cheatham case means the Court should wait to resolvee Pohl’s claims. Second, Kassab argues that the Cheatham case is relevant to his “illegality”f defense. Neither argument has merit. Future damages are an entirely normal occurrence thyat does not justify abatement of a case. Kassab’s affirmative defenses are either preempted orC have little relevance. Regardless, they do not justify Kassab’s request for abatement on the evae of trial. A. The fpotential existence of future damages does not support abatement. As the Court is surely familiar with, cases frequently arise and are tried despite the fact that a party may not have suffered the full extent of the damages they will likely incur. In fact, Texas 4 See Cheatham v. Pohl, No. 01-20-00046-CV, 2022 WL 3720139, at *4 (Tex. App.—Houston [1st Dist.] Aug. 30, 2022, no pet. h.) (noting the trial court entered a “final and appealable” order in Pohl’s favor); see also Notices of Appeal filed on Jan. 15 & 17, 2022 in Cause No. 2017-41110, Mark K Cheatham, Sr., et al, v. Michael A. Pohl, et al., in the 55th Judicial District Court of Harris County, Texas, attached as Exhibit 3. law often requires an injured party to bring their claims even when “all resulting damages have not yet occurred.” See Schlumberger Tech. Corp. v. Pasko, 544 S.W.3d 830, 834 (Tex. 2018) (citation omitted) (discussing accrual of claims in the context of a statute of limitations). If the fact that a party will continue to suffer damages required abating a case, there wokuld not be trials in cases involving damages for lost profits, damages for loss of earning capaclity, or damages for future medical expenses. Those cases go to trial, and the result should bec no different here. The concept of future, and thus necessarily uncertain, damagess is not novel. In fact, there is a standard for how a jury can analyze these types of damagess. See, e.g., GTE Mobilnet of S. Tex. Ltd. P’ship v. Pascouet, 61 S.W.3d 599, 617 (Tex. App.—Houston [14th Dist.] 2001, pet. denied) (discussing how a jury has discretion to award future damages that a party “in reasonable probability will sustain in the future”). Given the existence of this standard, the fact that a case involves future damages that are uncertain is naot sufficient to show that abatement is proper. Kassab’s primary case to support his theory that Pohl’s future damages justify an abatement is In re Tex. Collegiate Baseball Leageue, Ltd., 367 S.W.3d 462 (Tex. App.—Fort Worth 2012, no pet.). See Motion to Abate, at f3–4 (citing Collegiate Baseball League). However, the facts underlying that case are entiyrely dissimilar to those of this case, and the fact that abatement was proper in that case doeCs not provide any useful guidance in this case. Collegiate Baseball League involved a lawyer who was sued by two clients over an alleged settlement agrefefment. 367 S.W.3d 462, 464 (Tex. App.—Fort Worth 2012, no pet.). The lawyer asserted Ua counterclaim for recovery of his legal fees, and his clients subsequently asserted malpractice claims against him based on three separate lawsuits that were still pending. Id. The issue before the appellate court was over whether abatement or severance of the malpractice claims was proper, and whether the attorneys’ fees claim should also be subject to any abatement or severance. Id. at 465. To understand the court’s decision in Collegiate Baseball League, it is important to know that the parties did not dispute that the malpractice claims were premature. k Id. The claim for fees brought by the lawyer involved fees he charged in connection withl the three pending cases—the same three cases that were at issue in the clients’ malpractice cclaims against the lawyer. Id. at 465–66. Given this, the court found that “[s]everance or sepsarate trials are therefore not appropriate because the fee claim and the malpractice claims insvolve the same facts and issues.” Id. at 467. The court also found abatement was appropriate, because severing the fees claim could cause certain parties “to simultaneously take inconsistent litigation positions.” Id. at 467. It is in this context that the court notes that “the malpractice allegations and damage theories will remain fluid until the [other] litigations conclude.” Ida. The issues present in the Collegiate Baseball League case are not analogous to those before the Court. The Court is not faced wieth a situation where severance or abatement is required, and it then must decide the scope of thfe severance or abatement. Nor does the Cheatham case and this lawsuit involve the same facyts and issues. The shared issue is the far more common occurrence that the full extent of PCohl’s damages has not been incurred at this time. The Court should deny Kassab’s Motion to Abate, as the existence of future damages does not justify abatement. B. Kasfsfab’s defense has been preempted and does not entitle him to abatement. KUassab’s argues that under his “illegality” (unlawful acts doctrine) defense, “[i]f the Cheatham plaintiffs establish these barratry claims against Pohl, then Pohl cannot be permitted to recover any damages arising from his unlawful conduct.” Motion to Abate at 4.5 This is not 5 Kassab also mentions his “unclean hands” defense once, without any explanation. Motion to Abate at 2. He simply states that the outcome of the Cheatham case will establish his “unclean hands” defense and as a result, “Pohl would correct for multiple reasons.6 First, Kassab’s defense is not valid, as it was preempted years ago by Texas’s proportionate responsibility statute. Second, even if the unlawful acts doctrine were available as a defense, Kassab has not shown, or even alleged, how Pohl’s damages or injury in this lawsuit were proximately caused by Pohl’s alleged unlawful conduct. Regkardless of any unproven barratrous conduct, Pohl is entitled to recover damages that resultedl from defendants’ conversion and misappropriation of Pohl’s confidential information and fciles. First, Kassab failed to disclose on-point authority from the Tsexas Supreme Court stating that Kassab’s defense has been statutorily preempted. The sole scase Kassab cites for his unlawful acts or illegality defense is Andrew Shebay & Co., P.L.L.C. v. Bishop, 429 S.W.3d 644 (Tex. App.—Houston [1st Dist.] 2013, pet. denied). Kassab’s “illegality” defense is also known as the “unlawful acts doctrine.”7 However, after the court’s ruling in Bishop, the Texas Supreme Court ruled that “[t]he plain language of section 33.a003 clearly indicates that the common law unlawful acts doctrine is no longer a viable defense.” Dugger, 408 S.W.3d at 832. Kassab—and lead counsel fore the Kassab law firm, David Kassab—should be aware that Kassab’s asserted defense is no flonger viable, as demonstrated by the following argument they made in a different case: y be entitled to no damiages from Kassab.” Id. While the lack of explanation or argument from Kassab makes it unnecessary to address this issue more fully, it is worth pointing out that “unclean hands” is a defense to equitable relief that applies fwhen a party engaged in wrongful conduct that harmed the person raising the unclean hands defense. See In re Nolle, 265 S.W.3d 487, 494 (Tex. App.—Houston [1st Dist.] 2008, no pet.). Damages are not equitable relief, and Kassab has not alleged that Pohl’s alleged conduct in the Cheatham case has harmed him. Thus, Kassab’s “unclean hands” defense is not applicable and cannot support abatement of this case. 6 Kassab also does not explain how the outcome, as opposed to the facts, of the Cheatham case will impact this case. It is not clear how any outcome in that case, which involves different parties, could have a preclusive effect in this lawsuit. Furthermore, Kassab does not explain what further factual development will occur in the Cheatham case that is necessary or impactful to the issues in this case. 7 Compare Dugger v. Arredondo, 408 S.W.3d 825, 829 (Tex. 2013) (stating that “this Court recognized the common law unlawful acts doctrine as barring a plaintiff from recovering damages if it could be shown that, at the time of injury, the plaintiff was engaged in an illegal act that contributed to the injury”), with Bishop, 429 S.W.3d at 648–49 (describing the defense, cited by Kassab, as providing that if “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 recover”). [T]he Texas Supreme Court has reiterated that “the comparative responsibility scheme under Chapter 33 of the Texas Civil Practice and Remedies Code abrogated the unlawful acts doctrine.” Boerjan v. Rodriguez, 2014 Tex. LEXIS 531 at *7 (Tex. 2014)(citing Dugger v. Arredondo, 408 S.W.3d 825 (Tex. 2013)). Thus, the illegal acts doctrine may not be used as a ground to support summary judgment even if it is recast as a public policy argument. Id. (“Applying Dugger to this case, the unlawful acts doctrine cannot provide the basis for summary judgmentk.”).8 Kassab was correct then. The unlawful acts doctrine is no longer a valid defenlse. Second, even if Kassab’s use of the unlawful acts doctrine werec not preempted, Kassab would still have to show that Pohl’s alleged barratry was “a prosximate cause of the injury complained of in order to bar [Pohl’s] recovery.” See Arredondo v. Dugger, 347 S.W.3d 757, 761–62 (Tex. App.—Dallas 2011), aff’d on other grounds, 408 S.W.3d 825 (Tex. 2013). Even if Pohl had committed barratry, it did not proximately cause Pohl’s injuries giving rise to his claims here—defendants’ conversion and misappropriation of Pohl’s confidential and proprietary information. Kassab’s unsupported assertions that the outcome of the Cheatham case matters or impacts Pohl’s claims in this case should be rejected, and the Court should deny the Motion to Abate. e fIII. CONCLUSION Plaintiffs Michael Poyhl and Law Offices of Michael A. Pohl respectfully request that the Court deny Kassab’s Motion to Abate for the reasons set forth herein. Regardless of whether Pohl is likely to incur fuarther damages in connection with the Cheatham case, and regardless of the outcome of thatf case, Pohl is entitled to a trial on the merits of his claims. Abatement is neither required nor appropriate in these circumstances. 8 See Plaintiffs’ Objections and Response to Defendants’ Supplemental Motion for Summary Judgment, dated Sept. 15, 2014, in Cause No. 2011-75990, William Beatty, et al, v. Jimmy Van Knighton, II, et al., in the 133rd Judicial District Court of Harris County, Texas (a copy of this briefing is attached as Exhibit 4). Dated: September 15, 2022 Respectfully submitted, REYNOLDS FRIZZELL LLP By: /s/ Jean C. Frizzell Jean C. Frizzell State Bar No. 07484650 k 1100 Louisiana St., Suite 3500 e Houston, Texas 77002 l Tel. 713.485.7200 Fax 713.485.7250 c jfrizzell@reynoldsfrizzell.rcom Attorney for PlaintifDfs Michael Pohl and Law Office of Michael A. Pohl, PLLC CERTIFICATE OF SERVICE I hereby certify that a true and correct coply of this document was served on all counsel of record pursuant to the Texas Rules of Civil Procedure on this 15th day of September, 2022. o /s/ Jean C. Frizzell e Jean C. Frizzell Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Suni Blue on behalf of Jean Frizzell e Bar No. 7484650 C sblue@reynoldsfrizzell.com t Envelope ID: 68313271 r Status as of 9/16/2022 8:04 AM CST Case Contacts Name BarNumber Email TimsestampSubmitted Status Solace Southwick ssouthwick@reynoldsfrizzell.com 9/15/2022 5:08:42 PM SENT Zandra EFoley zfoley@thompsoncoe.com r9/15/2022 5:08:42 PM SENT Andrew Johnson ajohnson@thompsoncoe.com 9/15/2022 5:08:42 PM SENT Andrew J. Sarne asarne@krcl.com  9/15/2022 5:08:42 PM SENT Benjamin Ritz britz@thompsoncoe.com 9/15/2022 5:08:42 PM SENT Kathryn Laflin KLaflin@KRCL.com l 9/15/2022 5:08:42 PM SENT Murray JFogler mfogler@foglerbrar.coam 9/15/2022 5:08:42 PM SENT Murray Fogler mfogler@fbfog.comM 9/15/2022 5:08:42 PM SENT Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 9/15/2022 5:08:42 PM SENT Jason M.Ciofalo jason@ciofalolaw.com 9/15/2022 5:08:42 PM SENT Todd Taylor ttaylor@jandeflaw.com 9/15/2022 5:08:42 PM SENT Misty Davis mdavis@reynoldsfrizzell.com 9/15/2022 5:08:42 PM SENT Harris Wells hwells@freynoldsfrizzell.com 9/15/2022 5:08:42 PM SENT Todd Taylor ttaylor@jandflaw.com 9/15/2022 5:08:42 PM SENT Lawyer Wade lawyerwade@hotmail.com 9/15/2022 5:08:42 PM SENT Scott M.Favre oscott@favrepa.com 9/15/2022 5:08:42 PM SENT Andrea Mendez Candrea@kassab.law 9/15/2022 5:08:42 PM SENT Lance Kassab  lance@kassab.law 9/15/2022 5:08:42 PM SENT David Kassab david@kassab.law 9/15/2022 5:08:42 PM SENT Nicholas Pierce nicholas@kassab.law 9/15/2022 5:08:42 PM SENT Dale Jefferson 10f607900 jefferson@mdjwlaw.com 9/15/2022 5:08:42 PM SENT Raul Herman Suazo n24003021 suazo@mdjwlaw.com 9/15/2022 5:08:42 PM SENT Kevin Graham CainU24012371 cain@mdjwlaw.com 9/15/2022 5:08:42 PM SENT D Kassab david@kassab.law 9/15/2022 5:08:42 PM SENT Murray J. Fogler 7207300 mfogler@foglerbrar.com 9/15/2022 5:08:42 PM SENT L Kassab lance@kassab.law 9/15/2022 5:08:42 PM SENT Murray J. Fogler 7207300 mfogler@foglerbrar.com 9/15/2022 5:08:42 PM SENT

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