filings: 52

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filing_id date doc_type party description doc_type_detail procedural_posture chain outcome phase filename relief_requested full_text
52 2023-03-08 RSP Pohl Response to Mtn to Reconsider/Rule Plaintiffs' Response in Partial Opposition to Kassab's Motion to Reconsider or Rule Filed March 8, 2023 in the 281st Judicial District Court (Judge Weems) by Pohl's counsel Jean C. Frizzell of Reynolds Frizzell LLP. Response to Kassab's Motion to Reconsider or Rule (filing #49), which sought reconsideration of three prior orders by Judge Dollinger. Pohl partially opposes — agreeing the court should rule on the pending RTP motion but opposing reconsideration of the abatement and discovery compulsion rulings. MSJ-2R N/A Phase 4 2023-03-08_RSP_Pohl-Response-to-Kassab-Mtn-to-Reconsider-or-Rule_FILED.pdf Deny Kassab's Motion in part; deny Kassab's Supplemental RTP Motion on the merits; decline to reconsider prior rulings on Kassab's Motion to Abate and Motion to Compel 3/8/2023 7:39 PM Marilyn Burgess - District Clerk Harris County Envelope No. 73486867 By: Lewis John-Miller Filed: 3/8/2023 7:39 PM CAUSE NO. 2018-58419 MICHAEL A. POHL, et. al § IN THE DISTRICT COURT OF Plaintiffs, § V. § HARRIS COUNTY,k TEXAS § e LANCE CHRISTOPHER § C l KASSAB, et. al §  § c Defendants. § 281ST JUDrICIAL DISTRICT PLAINTIFFS’ RESPONSE IN PARTIAL OPPOSITION TO KASSAB’S MOTION TO RECONSIDER OR RULE s Defendants Lance Christopher Kassab and Lance Christopher Kassab P.C. d/b/a/ The Kassab Law Firm (collectively, “Kassab”) filed the Motion to Reconsider or Rule (the “Motion”), and in it states he filed it in order to file a petition for writ of mandamus if the Motion is denied. Pohl partially opposes the relief Kassab requests in his Motion. Pohl does not oppose the Court ruling on Kassab’s pending motion to designate responsible third parties—although Pohl contends that motion should be denied when thee Court addresses it on the merits. However, Pohl does not agree that the Court should reconfsider or revisit the other two rulings mentioned in the Motion, and Kassab has not shown hyow any prior ruling was erroneous. C I. DISCUSSION Kassab asksa the Court to rule on one pending motion and to reconsider rulings on two other motions. Kassafb is not entitled to relief on the merits with respect to any of those three motions. First, the Court should rule on Kassab’s Supplemental Motion to Designate Responsible Third Parties (“Kassab’s Supplemental RTP Motion”), but it should deny the relief Kassab requests. Kassab’s Supplemental RTP Motion does not fix the pleading defect that caused Judge Dollinger to deny Kassab’s first motion to designate responsible third parties. Second, Kassab provides no basis for why the Court should reconsider the denial of Kassab’s Motion to Abate Trial Setting (“Kassab’s Motion to Abate”), and the Court should not allow Kassab to delay trial. Third, the Court should not reconsider the denial of Kassab’s Motion to Compel Testimony and Documents Pursuant to the Offensive Use Doctrine (“Kassab’s Motion to Compel”). Kassab’s arguments on the offensive-use doctrine fail on the merits. k A. The Court should deny Kassab’s Supplemental RTP Motion. C l Pohl agrees that the Court should rule on Kassab’s Supplemental cRTP Motion. However, the Court should deny that motion on the merits. To designate a ressponsible third party, Kassab must plead sufficient facts showing that alleged responsible third parties were responsible for the harms underlying Pohl’s claims. Kassab failed to do that in his first motion, and his supplemental motion—which asserts the same prior factual allegations in a new order—does not fix this defect. Kassab’s failure to plead new factual allegations gives the Court a straightforward way to resolve Kassab’s Supplemental RTP Motion. Deny it. While this case was pending before the 189th District Court, Judge Dollinger denied Kassab’s first motion to designate responsible third parties because Kassab failed to pleaed sufficient facts showing that the alleged responsible third parties were responsible for the hafr f ms underlying Pohl’s claims.1 Judge Dollinger’s ruling reached the proper result, and with nyo new factual allegations, the same result is appropriate here. As laid out in PCohl’s Objection, Kassab’s Supplemental RTP Motion did not address the failings of the origianal motion—instead, it simply copies and paraphrases, in a new order, prior factual allegatiofns that Judge Dollinger found to be deficient. See generally Pohl’s Objection to Kassab’sU Supplemental Motion to Designate Responsible Third Parties, filed Nov. 30, 2022. Because Kassab chose to assert the same facts, which were previously found to be insufficient under the pleading standard, the Court should deny Kassab’s Supplemental RTP Motion. 1 See Court Order, dated Oct. 31, 2022 (denying Kassab’s first motion to designate responsible third parties); see also generally Pohl’s Objection to Kassab’s Motion to Designate Responsible Third Parties, filed May 31, 2022. B. Kassab’s Motion to Abate was properly denied. In the fall of 2022, Kassab filed his Motion to Abate. Judge Dollinger correctly found that abatement of this case was not proper or necessary. Nothing has changed since that ruling occurred, and the Court should decline to revisit the denial of Kassab’s Motion to kAbate. Kassab does not explain why he believes that Judge Dollinger’s decisioln to deny Kassab’s Motion to Abate was wrong. See generally Motion. Instead, Kassab sucggests that abatement is justified because he contends that “the outcome of Cheatham could sresult in a judgment against Pohl for barratry, which will definitively establish Kassab’s defenses to Pohl’s claims.” See id. at 2. That is not true, and Pohl’s Response to the Kassab Defendants’ Motion to Abate Trial Setting, filed Sept. 15, 2022 (“Pohl’s Response to Kassab’s Motion to Abate”), clearly explains why abatement is not appropriate. Even if barratry were relevant in this matter—and it is not—the results in a separate lawsuit in which Pohl, but not Kassab, is a party cannot establish Kassab’s defenses in this lawsuit. Kassab’s Motion to Abate argues abeatement is proper for two reasons: (1) Pohl is still incurring damages; and (2) the outcome off a separate lawsuit—the Cheatham case—will impact Kassab’s illegality (unlawful acts doyctrine) defense. See generally Kassab’s Motion to Abate. These arguments did not withCstand scrutiny. First, the faact that this case might involve future damages does not justify abatement. Future damagesf are not an uncommon occurrence, and to recover such damages, Pohl must satisfy the ordinUary 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 fact which is laid out in Pohl’s Response to Kassab’s Motion to Abate. Because nothing has changed since the Motion to Abate was correctly ruled on in the first instance, the Court should deny Kassab’s request to reconsider that ruling. C. Kassab has not shown that Pohl waived the attorney–client privilege, and thus Kassab’s Motion to Compel was properly denied. Kassab provides no explanation for why the Court should reconsider Judge Dollinger’s denial of Kassab’s Motion to Compel. Kassab improperly sought to pierce the attorney–client privilege, but he failed to show how the legal elements of the offensive-use dorctrine were met. Kassab’s Motion does nothing to explain why Kassab’s position was right on the merits, and the Court should deny the Motion without revisiting this decision. r i In his Motion to Compel, Kassab improperly sought to oDbtain attorney–client privileged materials between Pohl and Billy Shepherd (Pohl’s current attosrney in the Cheatham matter). See generally Motion to Compel. Kassab is particularly inrterested in obtaining these privileged materials because Kassab is counsel to the plaintiffs who are suing Pohl in the Cheatham matter. Thus, in this lawsuit, Kassab sought to obtain prlivileged materials from a third party who is his opposing counsel in the Cheatham matter. M Given that Kassab’s Motion too Compel was filed in conjunction with multiple other discovery motions, Pohl filed a joinct response that addressed it as well as other discovery motions filed by Kassab. See Plaintiffs’ Response in Opposition to the Kassab Defendants’ Three New Motions to Compel, at 7–16, filed Sept. 27, 2022. For the reasons stated in that response, the Court should deny Kassab’s request to reconsider the denial of Kassab’s Motion to Compel. Not only has Kassab failedc to establish offensive-use waiver, but independently, it was a reasonable exercise of Judge Dol o linger’s discretion to deny Kassab’s attempt to obtain this privileged information.2 Therefore, the Court should decline to reconsider this ruling and should deny the Motion. 2 Kassab never showed that he diligently pursued the discovery sought in the Motion to Compel prior to the close of discovery. Given this, and that Kassab sought privileged materials from Pohl’s counsel (who is opposing counsel to Kassab in another lawsuit), Judge Dollinger was entitled to exercise his discretion to limit the scope of discovery and deny Kassab access to privileged materials. See In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003) (“scope of discovery is within the trial court’s discretion”); In re State Farm Lloyds, 520 S.W.3d 595, 599 (Tex. 2017) (“discovery rules imbue trial courts with the authority to limit discovery based on the needs and circumstances of the case”). II. CONCLUSION For the foregoing reasons, Plaintiffs Michael Pohl and Law Offices of Michael A. Pohl respectfully request that the Court deny Kassab’s Motion, in part; deny Kassab’s Supplemental RTP Motion; and decline to reconsider prior rulings on Kassab’s Motion to Abatke and Kassab’s Motion to Compel. l Dated: March 8, 2023 Respectfully submitted, c REYNOLDS FRIZZELL LsLP By: /s/ Jean C. Frizzell Jean C. Fsrizzell State Bar No. 07484650 1100 Louisiarna St., Suite 3500 Houston, Texas 77002 Tel. 713.485.7200 Fax 713.485.7250 jfrizlzell@reynoldsfrizzell.com MAttorney for Plaintiffs Michael Pohl and Law Office of Michael A. Pohl, PLLC CEcRTIFICATE OF SERVICE I hereby certify that a true and correct copy of this document was served on all counsel of record pursuant to the Texasy Rules of Civil Procedure on this 8th day of March, 2023. /s/ Jean C. Frizzell a 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 Bar No. 7484650 sblue@reynoldsfrizzell.com r Envelope ID: 73486867 Status as of 3/9/2023 8:36 AM CST Case Contacts r i Name BarNumber Email TimestampSubmitted Status Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 3/s8/2023 7:39:40 PM SENT Andrew Johnson ajohnson@thompsoncoe.comg3/8/2023 7:39:40 PM SENT Benjamin Ritz britz@thompsoncoe.com u3/8/2023 7:39:40 PM SENT Murray JFogler mfogler@foglerbrar.com 3/8/2023 7:39:40 PM SENT Murray Fogler mfogler@fbfog.comy 3/8/2023 7:39:40 PM SENT Dale Jefferson 10607900 jefferson@mdjwalaw.com 3/8/2023 7:39:40 PM SENT Raul Herman Suazo 24003021 suazo@mdjwlaw.com 3/8/2023 7:39:40 PM SENT Kevin Graham Cain 24012371 cain@mdojwlaw.com 3/8/2023 7:39:40 PM SENT Todd Taylor ttaylor@jandflaw.com 3/8/2023 7:39:40 PM SENT Todd Taylor ttayflor@jandflaw.com 3/8/2023 7:39:40 PM SENT Misty Davis mdavis@reynoldsfrizzell.com 3/8/2023 7:39:40 PM SENT Lance Kassab peserve@kassab.law 3/8/2023 7:39:40 PM SENT Harris Wells C hwells@reynoldsfrizzell.com 3/8/2023 7:39:40 PM SENT Scott M.Favre a l scott@favrepa.com 3/8/2023 7:39:40 PM SENT Lawyer Wade lawyerwade@hotmail.com 3/8/2023 7:39:40 PM SENT Andrea Mendez o andrea@kassab.law 3/8/2023 7:39:40 PM SENT Lance KassabU lance@kassab.law 3/8/2023 7:39:40 PM SENT David Kassab david@kassab.law 3/8/2023 7:39:40 PM SENT Nicholas Pierce nicholas@kassab.law 3/8/2023 7:39:40 PM SENT D Kassab david@kassab.law 3/8/2023 7:39:40 PM SENT L Kassab lance@kassab.law 3/8/2023 7:39:40 PM SENT Murray J. Fogler 7207300 mfogler@foglerbrar.com 3/8/2023 7:39:40 PM SENT Kelly Skelton reception@kassab.law 3/8/2023 7:39:40 PM SENT Murray J. Fogler 7207300 mfogler@foglerbrar.com 3/8/2023 7:39:40 PM SENT

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