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46 2022-11-30 MSJ Pohl Partial MSJ on Barratry Liability Plaintiffs' Rule 166(g) Motion on Barratry Liability and Specific Affirmative Defenses Asserted by the Kassab Defendants Pre-trial motion filed November 30, 2022 by Pohl, five days before the December 5, 2022 trial setting. Seeks legal rulings under Tex. R. Civ. P. 166a(g) to narrow trial issues by: (1) finding barratry is not legally relevant to this lawsuit, and (2) striking 10+ of Kassab's affirmative defenses as barred as a matter of law. MSJ-3 N/A Phase 3 2022-11-30_MSJ_Pohl-Partial-MSJ-Barratry-Liability_FILED.pdf Find that: (1) establishing whether barratry occurred is not legally relevant to this lawsuit; (2) Kassab's affirmative defenses of unlawful acts, illegality, criminal acts, in pari delicto, justification, immunity under Rule 17.09, unclean hands, release, accord and satisfaction, estoppel, subject to a valid contract, assumption of the risk, and contribution are barred as a matter of law 11/30/2022 8:20 PM Marilyn Burgess - District Clerk Harris County Envelope No. 70589892 By: Deandra Mosley Filed: 11/30/2022 8:20 PM CAUSE NO. 2018-58419 MICHAEL A. POHL, et. al § IN THE DISTRICT COURT OF Plaintiffs, § V. § HARRIS COUNTY,k TEXAS § r LANCE CHRISTOPHER § l KASSAB, et. al § § c Defendants. § 189TH JUDrICIAL DISTRICT PLAINTIFFS’ RULE 166(g) MOTION ON BARRATRY LIDABILITY AND SPECIFIC AFFIRMATIVE DEFENSES ASSERTED BY THE KASSAB DEFENDANTS Under Texas Rule of Civil Procedure 166(g), Plaintiffs Michael Pohl and Law Office of Michael A. Pohl PLLC (collectively “Pohl”) file this Motion on the issues of the relevance of barratry liability and the legal viability of specific affirmative defenses asserted by the Kassab defendants (the “Motion”). Pohl requests tahat the Court find Defendants Lance Christopher Kassab and Lance Christopher Kassab P.C.’s (collectively, “Kassab”) theories regarding establishing barratry and certain otheer legal defenses fail as a matter of law. f I. STANDARD Under Texas Rule ofy Civil Procedure 166(g), this Court can decide legal issues at pretrial “to assist in the disposition of the case without undue expense or burden to the parties . . . .” See Tex. R. Civ. P. 166a(g). Allowing this trial to subsume the question of whether Pohl committed barratry, in connfection with clients whose information Kassab later misappropriated, would greatly extend the length of trial, and it would needlessly complicate the issues presented to the jury. A legal determination by this Court that whether barratry did in fact occur is immaterial to Pohl’s claims—whether as a matter of denial or as a defense—would assist in disposing of this case with less undue burden and expense. Furthermore, determining whether certain defenses fail as a matter of law is a set of legal questions the Court can decide to appropriately focus the trial in this case. II. DISCUSSION To prevent “undue expense” and additional “burden to the parties,” and to ensure that trial does not proceed for longer than is necessary, this Court should find that establishing whether barratry occurred is not legally relevant to the material issues in this case and that ten of Kassab’s affirmative defenses are not legally viable and have no bearing at trial. l A. The alleged existence of barratrous conduct by Pohl is not ac dtenial of or defense to Pohl’s claims, and Kassab’s desire to present evidence on irti is not material. Barratry does not constitute a defense to claims for theft oDf tirade secrets,1 conversion,2 or conspiracy.3 Even if Kassab could show that all of Pohl’s fosrmer and prospective clients were obtained through barratry—and he cannot—it would not prevent, nor is it material to, Pohl’s ability to establish the elements of his claims. 4 Because the alleged existence of barratry does not impact Pohl’s ability to establish his claims, nor does it constitute a defense to Pohl’s claims if established, the Court should find that as a matter of lawM, establishing barratry is not legally relevant at trial. Kassab’s position is that, as oa lawyer, he was entitled or otherwise justified in misappropriating and converting ncot only another lawyer’s proprietary information, but also confidential and privileged information about another lawyer’s clients simply because Kassab hoped to find evidence of bparratry claims to pursue against Pohl. Kassab likewise suggests that it was appropriate to solicit and entice the employees or contractors of another lawyer to violate their 1 A trade secrets cfl f aim under the Texas Uniform Trade Secrets Act (“TUTSA”) involves the following elements: (1) a plaintiff owned trade secrets; (2) a defendant misappropriated the trade secrets; and (3) that the misappropriation caused the plaintiff damages. See Tex. Civ. Prac. & Rem. Code §§ 134A.002 & 134A.004. 2 A conversion claim can include the following elements: “(1) the plaintiff owned, had legal possession of, or was entitled to possession of the property; (2) the defendant assumed and exercised dominion and control over the property in an unlawful and unauthorized manner, to the exclusion of and inconsistent with the plaintiff’s rights; and [applicable in some cases] (3) the defendant refused the plaintiff’s demand for return of the property.” Akin v. Santa Clara Land Co., Ltd., 34 S.W.3d 334, 344 (Tex. App.—San Antonio 2000, pet. denied); see also Hunt v. Baldwin, 68 S.W.3d 117, 131 (Tex. App.—Houston [14th Dist.] 2001, no pet.). 3 The elements of conspiracy are familiar: (1) a combination of at least two persons; (2) the persons seek to accomplish an object or course of action; (3) there is a meeting of the minds on the object or course of action; (4) one or more unlawful, overt acts are taken in furtherance of the conspiracy; and (5) damages occur. 4 Pohl asserts claims for conversion, TUTSA violations, and conspiracy. Plaintiff’s First Amended Petition ¶¶ 35–43. obligations by disclosing confidential information, simply because Kassab believed it could help support a claim against Pohl. However, the law does not authorize tortious conduct because a person may believe that conduct could help them uncover some other allegedly wrongful acts. As will be discussed further in the motions in limine and before the Coukrt, the topic of barratry is relevant to this case in certain, limited respects. The fact that Kassabl wanted to and did pursue barratry claims against Pohl necessarily will be a part of this casec. But evidence trying to prove the merits of such claims for barratry should not be presented sto the jury. However, since the start of this lawsuit, Kassab has attempted to inject the broader question of whether barratry did in fact occur into this lawsuit—Kassab even surreptitiously asserted claims pending in other lawsuits as counterclaims in this lawsuit. But there is a reason that Kassab uses bombastic language and allegations rather than clear and plain language to articulate the relevance of barratry—Kassab is intent on using this issuea to paint Pohl in a negative light in front of the jury. Still, any presentation of evidence directed at establishing whether Pohl violated rules against barratry is not material to the issues ine this case, because establishing barratry does not (1) prevent Pohl from establishing the elemenfts of his claims; and (2) is not a defense to Pohl’s claims. 1. Establishing barryatry does not deny the factual bases of Pohl’s claims or prevent Pohl from establishing the elements of his claims. On their face, the elements necessary to establish a TUTSA claim, a conversion claim, and the existence of ac conspiracy have nothing to do with barratry. Kassab conflates the idea that a client contract procured through barratry is voidable (in an action brought by the client who is a party to the contract) with the distinct issue of ownership of trade secret information. Establishing that barratry occurred does not entail revoking an attorney’s ownership of compilations of information about clients the attorney has represented. Nor does a contract’s voidability impact the ownership of information reflected in the contract. Thus, whether Pohl committed barratry is not a relevant matter that could deny Pohl the ability to establish the elements of his claims. Kassab incorrectly appears to believe that barratry may implicate Pohl’s ownership of the trade secrets. There is no legal basis for this position. Because establishing that bakrratry occurred will not operate to deny Pohl the ability to establish his claims, it is not a relelvant issue that the jury needs to consider or receive evidence on. c i. The alleged barratry does not impact Pohl’s ownershisp of the trade secrets. To prevail on his TUTSA claim, Pohl must be an owner of trade secrets. The statute provides that owner “means, with respect to a trade secret, the person or entity in whom or in which rightful, legal, or equitable title to, or the right to enforce rights in, the trade secret is reposed.” See Tex. Civ. Prac. & Rem. Code § 134A.002(3 n -a).5 To the extent that Kassab argues that establishing that Pohl committed barratry impracts Pohl’s ability to be the owner of any trade secrets, that argument fails as a matter of law. Kassab has conflated the enforceability of a client contract against a client allegedly eobtained through barratry with whether Pohl owns the information regarding with whomf Pohl has contracted—information reflected on copies of Pohl’s own client contracts. y Pohl has legal or equitable title to the information that comprises his client list, as well as the collection of coapies of attorney-client fee agreements, and the other files misappropriated by Kassab regardlefss of how clients listed in those files were obtained. Based on his prior arguments, Kassab appears to believe that Pohl cannot prevail on his claims without showing that every client 5 To the extent that Kassab suggests that the phrase “equitable title” imports some form of equitable analysis to whether Pohl owns the trade secrets, there is no legal support for this position. The reference to “equitable title,” especially in connection with the reference to “legal title,” simply incorporates the idea of beneficial ownership into the statutory definition. Equitable title is a “title that indicates a beneficial interest in property and that gives the holder the right to acquire formal legal title.” See Title: Equitable Title, Black’s Law Dictionary (11th ed. 2019). behind each client contract was procured without barratry. That is not the case, and Kassab cannot demonstrate that the existence of barratry is legally material to this lawsuit. To understand why establishing barratry is not material, it may be useful to contemplate what the impact would be if one assumed that Kassab can show that Pohl had obktained some, or even all, of his clients and potential clients through barratry. Even if a client hlas a valid claim for barratry, there is no legal support for the idea that simply because barractry occurred, the former lawyer loses (1) ownership of the collection of information constitutisng the lawyer’s client list; or (2) ownership of the attorney’s copy of the client contract. Rather, the statutory scheme suggests the precise opposite. A client contract is not rendered void even if it is established that barratry occurred. It is merely voidable if the client brings an action to have the contract declared void. See Tex. Gov’t Code § 82.0651(a). There is no dispute that none of Pohl’s client contracts have been declared void. This would not change eaven if Kassab established that barratry occurred in this lawsuit, because only the client can have a contract declared void. See id. But the lack of relevance exteends a step further. Even in a hypothetical world where some of Pohl’s clients had their client cfontracts declared void, that would not mean that Pohl’s client list and copies of client contractsy no longer belong to him. It would simply mean that a client contract that was declared voidC is not enforceable against the client. There is no support for the idea once a contract has been daeclared void, an attorney is divested of ownership of the information regarding with whom he hfas contracted. Nor would an attorney be divested of ownership of all copies of the void clienUt contract in his possession. Nor would the fact that a contract was declared void impact an attorney’s ownership of a compilation of information about clients that included the information about one client whose contract was declared void. There simply is no support for the idea that a finding of barratry, even if it voids a client contract, results in relief, finding, or a circumstance where an attorney must then purge his or her records of all references to that client and their information. Kassab’s arguments around barratry rely on obfuscating the issues that are actually before the Court. Kassab has conflated the voidability of a contract—which can preveknt that contract from being enforced—with ownership of trade secrets that include the compilaltion of information contained in those contracts. Regardless of whether barratry occurred, Pohcl owned the information about with whom he has done business, whether that information toosk the form of client contracts or client lists. While Kassab may dispute if Pohl owned those trade secrets, whether barratry occurred will not impact that determination. 2. Establishing barratry is not a standalone defense to Pohl’s claims. While Kassab’s various other pled defenses are discussed below, it is important to note that despite Kassab’s framing of this case, establishirng barratry is not an affirmative defense to Pohl’s claims. There are no “outlaws” under Texas law. Kassab’s unsubstantiated belief that Pohl engaged in barratry does not give Kaessab the right to ignore Pohl’s legal rights (and to treat Pohl as outside the law’s protections) bfy misappropriating and converting Pohl’s property. “An affirmative defeynse is defined as ‘a denial of the plaintiff’s right to judgment even if the plaintiff establishes every allegation in its pleadings.’ An affirmative defense allows the defendant to introdauce evidence to establish an independent reason why the plaintiff should not prevail; it does fnot rebut the factual proposition of the plaintiff’s pleading.” Hassell Constr. Co., Inc. v. Stature Commercial Co., Inc., 162 S.W.3d 664, 667 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (citations omitted). Despite prior insinuations from Kassab, establishing barratry is not a standalone defense to Pohl’s claims, nor has Kassab pled it as a standalone defense. See generally Kassab’s Eighth Amended Answer, Affirmative Defenses and Counterclaim (“Kassab’s Eighth Answer”). Even if Kassab could prove that Pohl committed barratry, that is not an independent basis for denying Pohl recovery on his claims in this lawsuit. Kassab’s desire to focus on allegations of barratry is part of his strategy to distract and prejudice the jury against Pohl through Kassab’s repetitive, inaccurate, and inflammatory claims that Pohl is a criminal or has violated felony crkiminal statutes. Kassab’s attempts to use his allegations of barratry as a defense are novell and without legal support. Kassab cannot cite to any Texas cases involving a claim for thceft of trade secrets or a claim for conversion where barratry was found to be an affirmatisve defense to those claims. Instead, what Kassab has pointed to are cases where courts have stated that they will not enforce a contract that is void for illegality. The defenses of illegality and unlawful acts are discussed more thoroughly below. See infra Part II(B)(1). But the Court should not be confused by Kassab’s attempt to cite inapplicable caselaw in this context. Pohl is not seeking to enforce any client contract, nor is he seeking to recover the procaeeds generated under any of those client contracts. Because it does not constitute a defense and has not been explicitly pled as a defense, the Court should find that establishing barratry eis not a standalone defense to Pohl’s claims. 3. Kassab should not be fpermitted to prejudice the jury through unconnected allegations of prior bad acts that Kassab has no standing to assert. The rules against barratry can only be enforced by specific parties against a lawyer through specific and limited avenues. The Texas State Bar can enforce disciplinary rules involving barratry through disciplincary proceedings brought against a lawyer. The State of Texas can enforce criminal statutes prohibiting barratry by bringing criminal charges against a lawyer. And finally, Texas allows clients who were solicited through barratry to sue under a civil statute. Kassab has no standing under any of these three avenues to allege and prove that Pohl committed barratry. If the Court permits Kassab to introduce evidence to try and establish that barratry occurred, it would be allowing Kassab to enforce the disciplinary rules, criminal statutes, or the civil liability statute even though Kassab would have no ability to do so in any other proceeding. This would be improper and distract from the issues that the jury must decide in this case. To the extent that evidence concerning, relating to, or mentioning barratry is permitted, it should be limited, and be accompanied by a limiting instruction, to evidence thatk can be directly linked to the plaintiffs who seek civil liability against Pohl (which are all reprelsented by Kassab). These are the only clients for which allegations of barratry have any placusible bearing. But this should be very carefully limited to prevent the use of the evidence as simproper character evidence or to suggest that Pohl procured all of his clients through barratry. B. Ten of Kassab’s so-called affirmative defenses fail as a matter of law. In his eighth amended answer, Kassab asserted numerous affirmative defenses. As a matter of law, ten of those defenses do not exist or do not apply in this case. To streamline the issues presented at trial, the Court should find that the rten defenses discussed below are not legally viable and will not be considered at trial.  1. Kassab’s Unlawful Acts Deoctrine defense—whether called illegality, criminal acts, or “in pari delicto”—is preccluded under clear Texas Supreme Court Precedent. Kassab’s current pleading asserts a defense of “Illegality/Criminal Acts,” but his prior answer described it as thep “Illegality/Criminal Acts/Unlawful Acts Rule” defense. Compare Kassab’s Eighth Answer, at 4, with Kassab’s Seventh Answer, at 4. Separately, Kassab also asserts a defense of “in pcairi delicto.” See Kassab’s Eighth Answer, at 4. Regardless of the title Kassab uses to descroibe it, the unlawful acts doctrine has been supplanted under Texas law. As for illegality and in pari delicto, they apply when a plaintiff seeks to enforce an illegal contract. Because none of Pohl’s claims involve a request to enforce any contract—let alone one that is allegedly illegal—the defenses of in pari delicto and illegality have no application to this case. First, to the extent that the unlawful acts doctrine could have any relevance, it is preempted by Texas’s proportionate responsibility statute. In Dugger v. Arredondo, the Texas Supreme Court considered “whether the common law unlawful acts doctrine is available as an affirmative defense under the proportionate responsibility framework.” 408 S.W.3d 825, 831–32 (Tekx. 2013). The Court found that “it is not,” and that “[t]he plain language of section 33.003 cllearly indicates that the common law unlawful acts doctrine is no longer a viable defense.” Idc. at 832. Pohl laid out the preemption problem in his response to Kasssab’s affirmative motion for traditional summary judgment.6 Kassab likely changed his description of this defense due to that prior briefing and Pohl pointing out that Kassab acknowledged this defense was preempted in prior briefing.7 However, Kassab describing the defense differently does not make a difference. While this defense would fail on the merits, that question is not reached, as the defense is preempted. A defense does not become un-preempted becauase a party calls it a different name. Second, there are other related defenses that go by the name of “illegality,” or sometimes “in pari delicto.” Kassab’s assertionse of these defenses also fail as a matter of law. Those defenses apply to a party seeking to enforfce an illegal contract. Because it is undisputed that Pohl is not attempting to enforce any coyntract, let alone an illegal contract, these defenses do not apply. Illegality or theC in pari delicto defense apply when a party comes into court seeking to have the court enforce ana illegal agreement. See Jefferson Cnty. v. Jefferson Cnty. Constables Ass’n, 546 S.W.3d 661f, 666 (Tex. 2018) (discussing illegality defense); Geis v. Colina Del Rio, LP, 362 S.W.3d 1U00, 106 (Tex. App.—San Antonio 2011, pet. denied) (“The defense of in pari delicto requires Texas Courts, as a general rule, to decline to enforce illegal contracts when the contracting 6 Pohl incorporates that briefing and its evidence as it pertains to the issue of the Unlawful Acts Doctrine. See Plaintiffs’ Response In Opposition to the Traditional Motions for Summary Judgment Filed by the Kassab Defendants and the Nicholson Defendants, at 19–27, filed Sept. 12, 2022. 7 See Plaintiffs’ Response to the Kassab Defendants’ Motion to Abate Trial Setting, at 6–7, filed Sept. 15, 2022. parties are equally blameworthy.”). These defenses are related to the unlawful acts doctrine. See Dugger, 408 S.W.3d at 829 (unlawful acts “doctrine originated with the principle of in pari delicto or ‘unclean hands’ in the contract context, but was extended to tort causes of action”). Pohl has not asserted any contract claim against Kassab, nor do any ofk his tort claims involve enforcing the terms of any allegedly illegal contract. See generallly Pohl’s Amended Petition. Even if the enforceability of Pohl’s client fee agreements were rcelevant, that condition is satisfied here. The Texas legislature provided that agreements prsocured through barratry are voidable, not void, and that a client may obtain a finding that voids the agreement.8 It is undisputed that not a single one of Pohl’s client fee agreements have been declared void. Because the unlawful acts doctrine has been preempted it cannot apply, regardless of what name Kassab uses to describe it. And because there is no contract the Court could decline to enforce, the defenses of illegality and in pari daelicto do not apply as a matter of law. Alternatively, even if such defenses could apply, they would not be triggered absent the statutory finding that a contract was void, which has not ocecurred and cannot occur in this lawsuit. For these and the reasons discussed above, the Coufrt should find that these defenses do not apply as matter of law. 2. The defense of “jyustification” is not available as a matter of law. Kassab also asserts the defense of “justification.” Kassab’s Eighth Answer, at 3. Kassab presumably contendas that he was “justified” in stealing Pohl’s client lists and other trade secrets because he beliefves Pohl committed barratry. The problem with this theory is that “justification” is not a defense to Pohl’s claims. Even if it were, Kassab could not arguably be “justified” in stealing Pohl’s trade secrets because Kassab does not allege that Pohl’s barratry involved Kassab. 8 See Tex. Gov’t Code § 82.0651(a) (stating that “client may bring an action to void a contract for legal services that was procured as a result of conduct” often described as barratry). 10 Justification is an affirmative defense to a claim of tortious interference with contract. See Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 210 (Tex. 1996) (describing defense); Knox v. Taylor, 992 S.W. 2d 40, 59 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (justification is an affirmative defense to tortious interference). “Justification” is not a recognized dekfense to theft of trade secrets, conversion, or conspiracy. The defense is an assertion that the deflendant was legally justified in interfering with the plaintiff’s contract through either a contracctual or legal right. See Tex. Beef Cattle, 921 S.W.2d at 210. It is not a generally available dsefense to all torts.9 Even for claims where the justification is available as a defense, if a party’s acts “are tortious in themselves, then the issue of privilege or justification never arises.” See Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 81 (Tex. 2000). Even if Texas recognized “justification” as a defense to claims of theft of trade secrets,10 conversion, or conspiracy, Kassab has not anad could not allege a basis on which to assert such a defense. First, Pohl’s allegations are that Kassab’s actions were tortious in themselves, and thus, justification does not apply. See Prudeential, 29 S.W.3d at 81. Second, Kassab cannot legitimately contend that Pohl took any actionf against them or that involved them before they committed the torts that form the basis of Pyohl’s claim. The notion that Kassab was “justified” in committing torts to obtain confidenCtial trade secrets so he could pursue claims of barratry, on behalf of third 9 There is one case, previously cited by Kassab, that states justification is an affirmative defense in the antitrust context. See Money Mastefrs, Inc. v. TRW, Inc., No. 05-98-02017-CV, 2003 WL 152770, at *5 (Tex. App.—Dallas Jan. 23, 2003, pet. denied). However, this case further supports the conclusion that justification is not a generally applicable defense that can be asserted against any tort claim. In finding that “[j]ustification is an affirmative defense to both an antitrust claim and a claim for tortious interference,” the court cited to a specific statute that provides that a party is justified in engaging in activities that may otherwise violate antitrust law if those activities are required under certain statutory or regulatory authority. See id. (citing Tex. Bus. & Com. Code § 15.05(g)). Pohl does not dispute that the Texas legislature could create a statutory justification defense to additional claims. However, the legislature has not extended the applicability of the defense of justification to any of the claims asserted by Pohl in this case. 10 Kassab has also argued that “Texas courts have considered the defense in relation to theft of trade secrets” in his prior briefing and cited to one case. See Lamont v. Vaquillas Energy Lopeno Ltd., LLP, 421 S.W.3d 198 (Tex. App.— San Antonio 2013, pet. denied). While that case involved a claim for theft of trade secrets, the defense of justification was not applied to that claim, rather, the court applied it to a tortious interference claim and stated that “[l]egal justification or privilege ‘is an affirmative defense to tortious interference with contract.’” See id. at 218. 11 parties, fails as a matter of law and as a matter of logic. To the extent that Kassab argues that he was justified in engaging in this tortious conduct on behalf of clients that did not exist at the time he committed the relevant tortious activity, there is no support to his interpretation of this defense. To streamline the issues presented at trial, the Court should find that this defense fkails legally. 3. The so-called defense of “Immunity under Rule 17.09 of thel Texas Rules of Disciplinary Procedure” does not apply as a matter of law. Kassab asserts that “Immunity under Rule 17.09 of the Texrais Rules of Disciplinary Procedure” protects him from liability for his actions in this lawsuiDt. See Kassab’s Eighth Answer, at 4. However, Kassab misunderstands Rule 17.09. It providess immunity to certain officials, such as members of the Texas Commission for Lawyer Discipline. It also limits a plaintiff’s ability to file a lawsuit predicated on a person’s involvement in the grievance process when that person is the complainant or a witness. However, because Pohl’s claims, and thus the lawsuit, are not predicated on Kassab’s involvement in the Mgrievance process, Rule 17.09 does not apply. Rule 17.09 provides that: “Noo lawsuit may be instituted against any Complainant or witness predicated upon the filing ocf a Grievance or participation in the attorney disciplinary and disability system.” TEX. RULES DISCIPLINARY P. R. 17.09. It does not provide immunity simply because there is some connection between a case and the grievance process. The immunity that is provided under the rule is limited to certain officials connected to the State Bar, and such officials “are immune fromc suit for any conduct in the course of their official duties.” Id. For a lawsuit to be “predicate o d upon” something, that something must be what the lawsuit is based or founded on.11 Kassab’s involvement in the grievance process does not give rise to Pohl’s claims. Pohl’s claims against Kassab are based on his misappropriation and conversion of Pohl’s property— 11 Predicate, Merriam-Webster.com Dictionary, https://www.merriam-webster.com/dictionary/predicate (accessed Nov. 28, 2022) (listing “FOUND, BASE” as a definition of “predicated”). 12 including his improper purchase and/or acquisition of Pohl’s client list, which included actual attorney-client fee agreements. See generally Amended Petition. These claims accrued upon Kassab’s acquisition of the client information or use of the client information to solicit those clients. Thus, Pohl’s claims accrued prior to any grievance being filed by Kassakb. Because the claims asserted pre-date the filing or participation in any grievance by Kassab, lthis lawsuit cannot have been “predicated upon the filing of a Grievance,” and Rule 17.09 doces not apply. Based on Kassab’s prior briefing on this subject, he appears tos believe (or wish through his selective quotations) that Rule 17.09 provides absolute immunity to him for anything he can connect to the grievance process—even though he is not a State Bar official. But that is not what the rule provides. A simple hypothetical shows how this lawsuit is not predicated on Kassab’s participation in the grievance process. If Kassab had never filed or participated in the grievance process, would Pohl’s claims in this lawsuit satill exist? Given that Pohl’s claims accrued prior to Kassab’s participation in the grievance process (starting in 2028), the answer is clearly yes. The fact that Kassab has taken the positioen on multiple occasions that Pohl’s claims accrued prior to 2018 and are barred by limitationfs shows that the fact that the basis or predicate of Pohl’s claims predates the grievances is noyt something that can be disputed.12 Pohl anticipateCs that Kassab may argue that a small portion of Pohl’s damages are connected to the griaevance process, and that this triggers application of Rule 17.09. However, the fact that there isf some connection that can be drawn between a grievance and a lawsuit does not implicateU Rule 17.09. There must be a showing that the lawsuit is predicated upon the grievance, not merely connected to it, especially when the claims accrued prior to the filing of any grievance. Participating in the grievance process is not a get-out-of-jail-free card for prior wrongful conduct. 12 See, e.g., Kassab’s Traditional Motion for Summary Judgment, at 2, 44–57, filed Aug. 29, 2022 (arguing that Kassab had conclusively established that Pohl’s claims against Kassab accrued years prior to the filing of this lawsuit). 13 A party’s participation in the grievance process is protected. But a person who commits a tort and then subsequently files a grievance is not somehow absolved for what they did prior to their involvement in the grievance process. Because this lawsuit is not predicated on Kassab’s participation in the grikevance process, the Court should find that Rule 17.09 does not apply as a matter of law. l 4. Unclean hands is not a defense to legal claims. c Kassab asserts “unclean hands” as an affirmative defense. Ssee Kassab’s Eighth Answer, at 3. Here again, Kassab presumably hopes to inject his claims of barratry to muddy the issues in the trial of this case. But unclean hands is not available as a defense to the claims asserted here, nor is it applicable to the type of relief currently sought by Pohl. Texas law provides that unclean hands is an affirmative defense that may bar a party with unclean hands from obtaining equitable relief. r See Wood v. Wiggins, 650 S.W.3d 533, 556 (Tex. App.—Houston [1st Dist.] 2021, pet. denied). However, there is both a nexus requirement, and a requirement that the party invoking tehe defense “must show an injury to himself arising from the conduct.” Id. “‘The clean hands mfaxim should not be applied when the defendants have not been seriously harmed and the wryong complained of can be corrected without applying the doctrine.’” Id. (citation omitted). Kassab’s usae and dissemination of Pohl’s trade secrets is a bell that cannot be unrung. Thus, while Pohfl previously pled injunctive relief in his petition, to streamline issues for trial, Pohl will no longer seek this relief. Because Pohl does not seek any equitable relief, and the defense is not available to Pohl’s tort claims, the Court should preclude consideration of the “unclean hands” defense at trial as a matter of law. To the extent that Kassab can show that the defense still has legal application for some other reason, the Court can still narrow the issues for trial by finding that Kassab cannot use 14 allegations of barratry, improper solicitation, or other supposed conduct relating to Pohl’s former and prospective clients to prove up this defense. There is no plausible theory by which that conduct caused Kassab an injury, rather than an alleged injury to Pohl’s former clients. See Wiggins, 650 S.W.3d at 556 (party asserting defense “must show an injury to himself arising fromk the conduct.”). Because the defense of unclean hands does not apply to Pohl’s claims orl the relief he seeks, the Court should find that as a matter of law, the defense has no applicaction or relevance to the trial in this matter. In the alternative, the Court should find that, as as matter of law, any theory of unclean hands based on Kassab’s allegations that Pohl committed barratry or other misconduct relating to Pohl’s former and prospective clients is not relevant, as it did not harm Kassab. 5. The defenses of release, accord and satisfaction, estoppel, and “subject to a valid contract” are not available as a matter of law. Kassab’s current answer also purports to assert defenses of “release,” “accord and satisfaction,” “estoppel,” and “subject to a Mvalid contract.” See Kassab’s Eighth Answer, at 3–4. However, in his prior summary judgmoent briefing, Kassab acknowledged that “contract-related affirmative defenses of release, accocrd and satisfaction, estoppel do not apply to Kassab.”13 Pohl agrees, and thus, this Court should find that because Pohl has not pled a contract claim against Kassab, the defenses of release, accord and satisfaction, and estoppel do not apply in this case as a matter of law. See Plaintiff’s First Amended Petition ¶¶ 35–43 (not asserting any claims sounding in contrcact against Kassab). As for Kassab’ assertion of the defense of “subject to a valid contract,” this defense appears to be a rewording of the express contract defense. That defense has no application here as a matter of law. The express contract defense applies to prevent a plaintiff from recovering in quantum 13 See The Kassab Defendants’ Response to Plaintiffs’ Motion for Partial Traditional and No-Evidence Summary Judgment, at 16, filed Sept. 12, 2022. 15 meruit when a plaintiff seeks “to recover the reasonable value of services rendered or materials supplied” but “there is an express contract that covers those services or materials.” See Pepi Corp. v. Galliford, 254 S.W.3d 457, 462 (Tex. App.—Houston [1st Dist.] 2007, pet. denied). Pohl has not pled or argued claims that would support such a defense, nor has Kassab madek any allegations that could plausibly support this defense. l Because these affirmative defenses relate to claims made in conctract, and Pohl has not alleged any contract claims against Kassab, the Court should find sthat the defenses of release, accord and satisfaction, estoppel, and “subject to a valid contract” do not apply as a matter of law. 6. Affirmative defenses of assumption of the risk and contributory negligence are no longer independent defenses apart from proporrtionate responsibility. Kassab asserts “assumption of the risk” and “contribution”14 as affirmative defenses. See Kassab’s Eighth Answer, at 3–4. Neither of these defenses are proper defenses to the claims in this case. The Texas Supreme Court has dMeclared that “the common law affirmative defenses of assumption of the risk and contributory onegligence no longer exist under Texas law,” rather, their “underlying concepts remain relevacnt under Texas’s proportionate-responsibility statute.” Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 209–10 (Tex. 2015) (footnote and citation omitted). To narrow the issues at trial, the Court should find that these defenses are not legally viable. PRAYER For the recaisons set forth herein, Pohl asks the Court to find that establishing whether barratry occuorred is not legally relevant to this lawsuit and that Kassab’s affirmative defenses of unlawful acts; illegality; criminal acts; in pari delicto; justification; immunity under Rule 17.09; unclean hands; release; accord and satisfaction; estoppel; subject to a valid contract; assumption of the risk; and contribution are barred as a matter of law. 14 It is unclear what defense Kassab’s reference to “Contribution” could refer to other than contributory negligence. 16 Dated: November 30, 2022 Respectfully submitted, REYNOLDS FRIZZELL LLP By: /s/ Jean C. Frizzell Jean C. Frizzell State Bar No. 07484650 k 1100 Louisiana St., Suite 3500 r 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 copy of this document was served on all counsel of record pursuant to the Texas Rules of Civil Procedure on this 30th day of November, 2022. M /s/ Jean C. Frizzell  Jean C. Frizzell 17 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: 70589892 Status as of 12/1/2022 8:34 AM CST Case Contacts r i Name BarNumber Email TimestampSubmitted Status Solace Southwick ssouthwick@reynoldssfrizzell.com 11/30/2022 8:20:45 PM SENT Zandra EFoley zfoley@thompsogncoe.com 11/30/2022 8:20:45 PM SENT Andrew Johnson ajohnson@thoumpsoncoe.com 11/30/2022 8:20:45 PM SENT Benjamin Ritz britz@thompsoncoe.com 11/30/2022 8:20:45 PM SENT Murray JFogler mfogleyr@foglerbrar.com 11/30/2022 8:20:45 PM SENT Murray Fogler mfaogler@fbfog.com 11/30/2022 8:20:45 PM SENT Dale Jefferson 10607900 jefferson@mdjwlaw.com 11/30/2022 8:20:45 PM SENT Raul Herman Suazo 24003021osuazo@mdjwlaw.com 11/30/2022 8:20:45 PM SENT Kevin Graham Cain 24012371 cain@mdjwlaw.com 11/30/2022 8:20:45 PM SENT Misty Davis f mdavis@reynoldsfrizzell.com 11/30/2022 8:20:45 PM SENT Non-Party Witness Billy Shepherd bshepherd@spcounsel.com 11/30/2022 8:20:45 PM SENT Lance Kassab p eserve@kassab.law 11/30/2022 8:20:45 PM SENT Jean C.Frizzell C jfrizzell@reynoldsfrizzell.com 11/30/2022 8:20:45 PM SENT Harris Wells a l hwells@reynoldsfrizzell.com 11/30/2022 8:20:45 PM SENT Scott M.Favre scott@favrepa.com 11/30/2022 8:20:45 PM SENT Lawyer Wade o lawyerwade@hotmail.com 11/30/2022 8:20:45 PM SENT Andrea MendeUz andrea@kassab.law 11/30/2022 8:20:45 PM SENT Lance Kassab lance@kassab.law 11/30/2022 8:20:45 PM SENT David Kassab david@kassab.law 11/30/2022 8:20:45 PM SENT Nicholas Pierce nicholas@kassab.law 11/30/2022 8:20:45 PM SENT D Kassab david@kassab.law 11/30/2022 8:20:45 PM SENT Murray J. Fogler 7207300 mfogler@foglerbrar.com 11/30/2022 8:20:45 PM SENT L Kassab lance@kassab.law 11/30/2022 8:20:45 PM SENT Murray J. Fogler 7207300 mfogler@foglerbrar.com 11/30/2022 8:20:45 PM SENT

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