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60 2023-09-18 RPL Pohl Reply ISO Mtn for Final Judgment Pohl's Reply in Support of Motion for Entry of Final Judgment, responding to Kassab's five objections to the proposed judgment regarding exemplary damages unanimity, attorneys' fees recoverability, overlapping damages, conspiracy preemption, and Precision's exoneration Reply brief filed September 18, 2023 in the 281st Judicial District Court, Harris County, Cause No. 2018-58419. Filed three days after Kassab's September 15, 2023 objections to Pohl's September 5, 2023 Motion for Entry of Final Judgment. Addresses each of Kassab's five objections and argues the court must enter judgment consistent with the jury verdict. JDGMT-1 N/A Phase 5 2023-09-18_RPL_Pohl-Reply-ISO-Mtn-for-Final-Judgment_FILED.pdf That the Court overrule Kassab's objections and enter the Final Judgment in the form attached to the Motion as Exhibit B 9/18/2023 8:21 PM Marilyn Burgess - District Clerk Harris County Envelope No. 79681130 By: Bonnie Lugo Filed: 9/18/2023 8:21 PM CAUSE NO. 2018-58419 MICHAEL A. POHL AND LAW OFFICE OF § IN THE DISTRICT COURT OF MICHAEL A. POHL, PLLC, § Plaintiffs, § V. § k § e SCOTT FAVRE and SCOTT M. FAVRE PA, § C l LLC; PRECISION MARKETING GROUP, § HARRIS COUNTY, TEXAS LLC; LANCE CHRISTOPHER KASSAB and § c LANCE CHRISTOPHER KASSAB, P.C. d/b/a § r THE KASSAB LAW FIRM; TINA § s NICHOLSON and BAKER NICHOLSON, § LLP d/b/a BAKER NICHOLSON LAW § s FIRM; and DOUGLAS MONTAGUE III and § s MONTAGUE PITTMAN & VARNADO, P.A., § Defendants. § r281ST JUDICIAL DISTRICT POHL’S REPLY IN SUPPORT OF HIS MOTION FOR ENTRY OF FINAL JUDGMENT On September 5, 2023, Plaintiffs Michaell Pohl and Law Offices of Michael A. Pohl PLLC (collectively, “Pohl”) filed their motion foMr entry of a Final Judgment and to adjudge costs (the “Motion”). On September 15, 2023, Lance Christopher Kassab and Lance Christopher Kassab, P.C. d/b/a The Kassab Law Firm’s (collectively, “Kassab”) filed Objections to Pohl’s Proposed Final Judgment (the “Response”). Kassab fails to demonstrate in the Response that the Court would commit error in any way by entering final judgment in the form requested by Pohl.  OVERVIEW Kassab liscts five general objections to entry of judgment. None of the objections withstand scrutiny. • Kassab objects to the inclusion of exemplary damages in the judgment because he contends the Jury’s answer of “Yes” to Question 17 was not unanimous. But Kassab is factually incorrect because, on its face, the Jury Verdict shows that the Jury unanimously answered “Yes” to Question 17. The Court instructed the Jury to only answer “Yes,” in response to Question 17 if it was unanimous, and the Jury is presumed to have followed those instructions. Moreover, the Court instructed the Jury to answer Question 19 “only if you unanimously answered “Yes” to Question no. 17,” and the Jury answered Question 19. k • Kassab objects to the inclusion of attorneys’ fees from a prCiorl lawsuit as part of Pohl’s damages. But Pohl’s damages are recoverable, becacuse attorneys’ fees from a prior, different lawsuit—not the current lawsuit—can properly constitute actual loss, which are recoverable damages under TUTSsA. • TUTSA expressly authorizes the recovery ofg both actual loss and unjust enrichment damages together. The Jury was instruBcted to not award duplicative damages and awarded both damages. Thus, Pohyl is entitled to recover both amounts. • Conspiracy is a means of imaposing joint and several liability. It is not an independent claim givingf rise to a remedy that could conflict with TUTSA. Conspiracy is not preempted by TUTSA or the proportionate responsibility statute, and Kassab was unfable to cite any binding precedent stating otherwise. • The jury’s finding that Precision did not misappropriate trade secrets is consistent with itsC finding that Kassab—who acquired those trade secrets from Favre, not Precision—did misappropriate Pohl’s trade secrets. f DISCUSSION I. TUhe Jury properly awarded Pohl exemplary damages. Kassab contends that an award of exemplary damages is unsupported and improper because the Jury did not unanimously answer “Yes” in response to Question 17. See Response at 3. This is not true. On its face, the Jury Charge shows that the Jury unanimously answered “Yes” to Question 17 after being instructed to only answer “Yes” if the finding was unanimous. If Kassab believed that the certificate of unanimity was in conflict with the findings contained in the Jury Verdict, it was his duty to request a polling of the Jury. While no actual conflict exists, Kassab’s failure to raise this issue waived any conflict that might exist. k “The jury is presumed to have followed the court’s instructions.” Collumbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 862 (Tex. 2009). When cpossible, a court “must” “reasonably construe the [jury’s] findings in a way that harmonizes thsem.” USAA Tex. Lloyds Co. v. Menchaca, 545 S.W.3d 479, 509 (Tex. 2018); Bender v. S. Psac. Transp. Co., 600 S.W.2d 257, 260 (Tex. 1980). Failure to reconcile answers in favor of the jury’s verdict when possible is reversible error. Luna v. Southern Pacific Transp. Co., 724 S.W.2d 383, 384 (Tex. 1987). Even where the jury findings are ambiguous or unclear, the court must try to interpret the findings so as to uphold the verdict. Jackson v. U.S. Fid. & Gauar. Co., 689 S.W.2d 408, 412 (Tex. 1985). When a party contends that a jury’s award of exemplary damages is not supported by a unanimous jury finding, it is reviewed as a “no evidenece” point. Redwine v. Peckinpaugh, 535 S.W.3d 44, 50 (Tex. App.—Tyler 2017, no pet.). f There is clear evidenyce that the Jury made the required unanimous findings supporting an award of exemplary daCmages. First, the fact that the Jury answered “Yes” in response to Question 17 shows that its finding was unanimous. The Jury was instructed that it could only answer “Yes” to Question 17f iff its answer was “unanimous.”1 SeUcond, the fact that the Jury awarded exemplary damages in response to Question 19 also shows that its answer to Question 17 was unanimous. The Court instructed the Jury that it could only answer Question 19 if the Jury “unanimously answered ‘Yes’ to Question No. 17 or Question 1 Jury Charge at 24, attached as Ex. A to the Motion. No. 18.”2 The Jury did not answer Question 18.3 But the Jury answered Question 19 and found that an award of exemplary damages of $3,000,000 against Kassab was proper.4 Given the Court’s instructions, the Jury only could have answered this question if it unanimously answered “Yes” to Question 17. k The Court’s instructions to the Jury show that its answer in response tlo Question 17 was unanimous. See Bruce v. Oscar Renda Contracting, 657 S.W.3d 453, 4c64 (Tex. App.—El Paso 2022, pet. filed) (“Because the jury was instructed to only answer thse gross negligence question, and the exemplary damages award question if unanimity was resached, we must presume it did so by following the instructions.”). In contrast, Kassab’s argument requires the Court to presume that the Jury ignored the Court’s instructions in response to multiple questions, which would be an improper and impermissible presumption. Columbia Rio Grande Healthcare, L.P., 284 S.W.3d at 862 (“The jury is presumed to have followed athe court’s instructions.”). Kassab contends that the Jury’s answer to Question 17 was not unanimous because the Presiding Juror appears to have inadvertently failed to sign the certificeate of unanimity with respect to Question 17. See Response at 3–4. This contention is not sufpported by the Jury’s affirmative findings based on the Court’s instructions as reflected in thye Jury Verdict. The Dallas CouCrt of Appeals confronted a similar situation in Stover v. ADM Milling Co., No. 05-17-00778-CV, 2018 WL 6818561 (Tex. App.—Dallas Dec. 28, 2018, pet. denied). The court was askefdf to find that the jury’s award of exemplary damages was not supported “because the findinUgs on the threshold jury question nos. 5 and 6 were not certified to be unanimous.” 2018 WL 6818561, at *12. But the court rejected this argument and found that “the evidence is legally 2 Id. at 26. 3 Id. at 25. 4 Id. at 26. sufficient to support the jury's award of exemplary damages” because the jury later unanimously answered questions predicated on unanimous answers to question nos. 5 and 6. See id. The court held: [W]e address Holmes and Holmes Law's argument that the evidence wask legally insufficient to support the jury's award of exemplary damages in jury qeuestion no. 17 because the findings on the threshold jury question nos. 5 and l6 were not certified to be unanimous. In support of their argument, they point to the verdict certificate where the jury stated, ‘Our verdict is not unanimous. Ecleven of us have agreed to each and every answer and have signed the certificate rbelow.’ However, the record also contains an additional certificate signed by thse presiding juror that states, "I certify that the jury was unanimous in answering QDuestion No. 15, 16, 17, and 18. All 12 of us agreed to each of the answers." In sjury question nos. 5 and 6, the jury found Holmes and Holmes Law liable for comsmon law fraud and statutory fraud. The instructions for those jury questions did not require a unanimous verdict. However, both jury question nos. 15 (clrear and convincing evidence of fraud and statutory fraud) and 16 (malice) instructed the jury to answer those questions ‘only if [] [they] [] unanimously answered 'Yes' to any part of Question No. 5 [common law fraud] or if [they] unanimously answered 'Yes' to any part of Question No. 6 [statutory fraud] and Quelstion No. 7 [actual awareness].’ Further, jury question no. 17 (exemplary damaages) instructed the jury that they should only answer the question ‘if [they] unaMnimously answered 'Yes' to Question 15 or Question No. 16.’ The jury is presumed to have followed the trial court's instructions. See, e.g., Columbia Rio Grande Healthcare L.P. v. Hawley, 284 S.W.3d 851, 862 (Tex. 2009)e. We conclude the evidence is legally sufficient to support the jury's award of exemplary damages in jury question no. 17. Holmes and Holmes Law's issue 3f.3(a) is decided against them. Id. y Stover is directCly on point with the facts of this case and directly refutes the argument asserted by Kassab.a In contrafst, the case Kassab relies on—Redwine v. Peckinpaugh, 535 S.W.3d 44, 50 (Tex. App.—TyUler 2017, no pet.)—is different for many reasons. In Redwine, the jury had a single cause of action for defamation before it. Redwine, 535 S.W.3d at 47. While it answered an exemplary damages question that it was instructed to only answer if unanimous, its answer was directly in conflict with its certification that the entire verdict was otherwise not unanimous. See id. at 51– 52. The court then polled the jury and confirmed the lack of unanimity. See id. As explained in Bruce v. Oscar Renda Contracting, because Redwine dealt with a single cause of action giving rise to liability, the certification of non-unanimity was in conflict with an award of exemplary damages. 657 S.W.3d 453, 464 (Tex. App.—El Paso 2022, pet. filed). The court in Bruce contrasted the facts in Redwine with a set a facts similar to those in thkis case, saying: “We conclude that the jury’s certification at issue here does not have the samle conclusive effect as it did in Redwine, given that this jury was permitted to answer severacl questions by a 10 to 2 vote, unless otherwise instructed to only answer upon reaching unansimity.” Id. In other words, because not all of the verdict needed to unanimous, a general cerstificate of non-unanimity is not in conflict with an award of exemplary damages. Furthermore, in this case, like in Stover, the jury unanimously answered a question (Question 19) that was predicated on a unanimous answer to Question 17 after answering Question 17. Like in Stover, the Jury here could not haave answered the latter question (Question 19) unless it unanimously answered the earlier question at issue (Question 17). That was not the case in Redwine. e The Jury is presumed to have ffollowed the Court’s instructions, and the Court must “reasonably construe the [jury’s] findingsy in a way that harmonizes them.” USAA Tex. Lloyds Co., 545 S.W.3d at 509. Given the JurCy’s responses to Questions 17 and 19, and the Court’s related unanimity instructions, the only reasonable construction of the Jury’s findings is that the Jury was unanimous in answering “Yf fes” to Question 17. Because there is evidence indicating that the Jury unanimously found exeUmplary damages against Kassab, the Court “must” give effect to the Jury’s findings and enter a judgment awarding exemplary damages against Kassab. See id.; Bender v. S. Pac. Transp. Co., 600 S.W.2d at 260. Finally, and as we previously stated, while no actual conflict in the Jury’s answers exists, Kassab’s failure to raise this issue before the Jury was discharged waived the alleged conflict that Kassab now claims to exist. Texas law is well settled that “to preserve error based on fatally conflicting jury answers, parties must raise that objection before the trial court dischkarges the jury.” USAA Texas Lloyds, 545 S.W.3d 479, 518 (discussing how Rule 295 requlires that potential conflicts in the verdict should be resolved by the trial court giving instrucctions to the jury before the jury is dismissed). The rule is the same whether the complaint resgarding the jury’s answers is that they are incomplete or that they are in fatal conflict; the obsjection must be raised before the jury is discharged in order to afford the trial court the opportunity to correct the error. As further stated by the Supreme Court in USAA Texas Lloyds: [Texas Rule of Civil Procedure] 295 provides the procedure for resolving incomplete and nonresponsive jury verdiclts as well as those containing conflicting answers. Tex. R. Civ. P. 295. Addresasing incomplete verdicts, we have long held that a judgment will not be reversMed "unless the party who would benefit from answers to the issues objects to the incomplete verdict before the jury is discharged, making it clear that he desires that the jury redeliberate on the issues or that the trial court grant a mistrial." Fleeet v. Fleet, 711 S.W.2d 1, 3 (Tex. 1986); see also Continental Cas. Co. v. Street, 379 S.W.2d 648, 650 (Tex. 1964) (holding party failed to preserve error bfecause he "did not object to the acceptance of the jury verdict as incomplete, and thus by timely objection afford the trial court the opportunity, before thye jury was discharged, of correcting the error (if such it was) of accepting the verdict with the issues unanswered"). We conclude that the same error-preservatiCon requirement applies when a party complains of a judgment based on conflicting jury answers. Id. at 519. c Had Kassab timely raised the asserted conflict prior to the jury being discharged, Rule 295 would have resolved any confusion regarding how many jurors joined in answering the Question 17. That is exactly what happened in Bryan v. Papalia, 542 S.W.3d 676, 692–93 (Tex. App.— Houston [14th Dist.] 2017, rev. granted, judgm’t vacated w.r.m.), where the Fourteenth Court of Appeals addressed the issue at length as follows: When the jury originally returned its verdict, the verdict form showed that the jury had answered “yes” as to Question 1 for Papalia and “yes” as to Question 2. The trial court had instructed the jury that it could answer “yes” to Question 2 only if all jurors agreed on that answer and only if all jurors had agreed to answer “yes” in Question 1 as to Papalia. Despite this instruction, the jury’s verdict certificate originally showed that only ten jurors had agreed to all of the jury’s answers so only ten had agreed to answer Question 1 “yes” for Papalia and to answer Qukestion 2 “yes,” but, in light of the trial court’s instructions in Question 2, ethe jury’s affirmative answer to Question 2 indicated that the jury had answeredl these two questions unanimously. After discussing this situation with counsel and polling the jur iry, the trial court explained to the jury in open court and on the record that the vesrdict form contained an ambiguity because the jury was instructed to answer “yeDs” to Question 2 only if all jurors agreed to that answer, but the jurors indicated in the verdict certificate that only ten jurors agreed to this answer. The trial cosurt then directed the jury to return to the jury room and clarify on the verdict certificate whether the answer to Question 2 was unanimous . . . . The jury later rerturned with an amended verdict certificate indicating that the answers to the first two questions were unanimous and that ten jurors agreed to the answers to Questions 3 through 9 . . . Papalia argued in the JNOV Motion that the trial court should disregard the answer to Question 2 because only ten jurors agrreed to that answer and signed the original verdict certificate. Though it is trueM that only ten jurors signed the original verdict certificate, after the jury returned to the jury room, the jury amended the verdict certificate to show that all jurorso agreed to the answers to the first two questions. In this context, the original verdiect certificate does not provide a basis for disregarding the jury’s answer to Questiocn 2. Bryan, 542 S.W.3d at 692–93. The Court “must” reconcile the jury’s answers to support its award of exemplary damages against Kassab. Here, the only way to reconcile the Jury Verdict is to give effect to the Jury’s answers to Questicons 17 and 19. But even assuming arguendo that reconciliation were not possible because of ano assertedly “fatal” conflict, Kassab waived the complaint by not raising it before the jury was discharged. Id. As the party relying on the asserted conflict to avoid the effect of the answers awarding exemplary damages, Kassab bore the burden to timely object and failed to do so. Id. (citing Burbage v. Burbage, 447 S.W.3d 249, 256 (Tex. 2014)). Because Kassab did not make any such timely objection, he waived the right to complain regarding the alleged conflict. II. Pohl is entitled to recover his actual losses as damages under TUTSA. Kassab objects to Pohl’s damages that are based on attorneys’ fees from underlying proceedings based on two grounds. First, Kassab says attorneys’ fees are not recoverable under TUTSA. See Response at 5–10. Second, Kassab argues that the attorneys’ kfees cannot be recovered in connection with the grievance procedures. See id. at 10. Neither lof these arguments is correct. c A. Pohl’s TUTSA damages are recoverable. s Despite having previously asserted the same rejected arguments5 on multiple prior occasions, Kassab continues to claim that portions of Pohl’s edamages are not recoverable because they are based on attorneys’ fees incurred in separate proceedings. See Response at 5–10. Kassab was wrong before, and he remains wrong now. Int is true that attorneys’ fees typically do not constitute actual damages when incurred in the rsame lawsuit. But attorneys’ fees from a separate lawsuit—incurred as the result of wrongful conduct of the defendant—can constitute actual damages in a separate, subsequent laewsuit. See, e.g., Akin Gump Strauss Hauer & Feld, LLP v. National Development & Researchf Corp., 299 S.W.3d 106, 119-22 (Tex. 2009). Kassab conflates these distinct scenarios in aryguing otherwise. TUTSA authorizes the recovery of damages, including “actual loss caused by misappropriation.” a Tex. Civ. Prac. & Rem. Code § 134A.004(a). On its face, the plain meaning of “actual loss” fis broad and encompasses consequential losses. This broad definition of damages is not surprising, because a “‘flexible and imaginative’ approach is applied to the calculation of damages in misappropriation-of-trade-secrets cases.” Sw. Energy Prod. Co. v. Berry-Helfand, 491 5 See Kassab’s Traditional Motion for Summary Judgment, at 76–80 filed Aug. 29, 2022; Pohl’s Response in Opposition to the Traditional Motions for Summary Judgment Filed by the Kassab Defendants and the Nicholson Defendants, filed Sept. 12, 2022; see also Court Order, entered Oct. 31, 2022 (denying Kassab’s request for summary judgment). Pohl incorporates his prior briefing on this issue by reference. S.W.3d 699, 710 (Tex. 2016). To the extent that the Court wishes to look at persuasive authority from other states, they too have recognized that the definition of “actual loss” is broad and encompasses tort damages where a “plaintiff must prove that its loss was caused by the defendant’s violation.” See World Wide Prosthetic Supply, Inc. v. Mikulsky, 640 N.W.2d 764, 7k70 (Wis. 2002); see also Dunsmore & Associates, Ltd. v. D'Alessio, No. 409906, 2000 WL 124l995, at *10 (Conn. Super. Ct. Jan. 6, 2000) (“Actual loss in this context means the amount ofc money that the plaintiff lost from the defendant's misappropriation; it is measured by how smuch better off the plaintiff would have been but for the defendant's misappropriation.”). s  The weakness of Kassab’s position is showcased by his misleading use of caselaw. Kassab cites to out of state caselaw asserting that “‘actual loss’ means ‘loss of profits, lost customers or lost market share.’” See Response at 5 (citations omitted). While Pohl disputes that Florida limits actual loss damages to these three categories, iaf it did, it demonstrates why the Court should ignore this out-of-state authority. Kassab does not dispute that Texas allows recovery of damages outside those three categories of damages. Seee, e.g., Response at 10–11 (not disputing that market value is recoverable as a measure of “acftual loss”). Kassab’s citations toy Texas caselaw fares little better. This case concerns recovery of attorneys’ fees incurredC in separate proceedings. But Kassab cites to multiple cases dealing with recovery of attorne a ys’ fees incurred in the same proceeding. See Response at 7.6 Some of the 6 Lacore Enters., LLC v. Angles, No. 05-21-00798-CV, 2023 WL 2607562, at *9 (Tex. App.—Dallas Mar. 23, 2023, no pet.) (standing for the non-controversial conclusion that fees from the same lawsuit are not recoverable as damages under the American rule); O’Neal v. Dale, No. 02-20-00173-CV, 2021 WL 210848, at *10 (Tex. App.—Fort Worth Jan. 21, 2021, no pet.) (standing for the uncontroversial proposition that fees incurred in the present lawsuit do not typically constitute damages); Woodhaven Partners, Ltd. v. Shamoun & Norman, L.L.P., 422 S.W.3d 821, 839 (Tex. App.—Dallas 2014, no pet.) (“the only damages stated by appellants consist of legal fees and expenses they incurred in defending against this lawsuit brought by appellee and in prosecuting their counterclaims.”). 10 cases did not concern recovery of attorneys’ fees at all.7 One is cited for a proposition that was subsequently overruled.8 The Court should ignore Kassab’s misleading citations to caselaw that do not govern the issue before the Court. And even if the Court were not convinced that TUTSA alone authorized kthe recovery of Pohl’s damages, Pohl’s damages are recoverable under equitable principlesl. See Dixon Fin. Services, Ltd. v. Chang, 325 S.W.3d 668, 678 (Tex. App.—Houston [1st cDist.] 2010, pet. denied) (“Equitable principles allow the recovery of attorney’s fees as actuasl damages when a party was required to prosecute or defend a prior legal action as a conssequence of a wrongful act of the defendant.”).9 Kassab acknowledges the potential applicability of this doctrine, but he claims that Pohl cannot qualify because “Pohl is not a wholly innocent party.” See Response at 9. Pohl disputes that the “wholly innocent party” notion is paroperly part of the tort of another doctrine.10 But 7 Tana Oil & Gas Corp. v. McCall, 104 S.W c .3d 80, 81 (Tex. 2003) (rejecting argument that parties could recover for the value of their own time because thfe Court saw “no causal relationship between the tortious interference the McCalls allege and the only damageOs they claim.”); Tex. Mut. Ins. Co. v. Ray Ferguson Interests, Inc., No. 01-02- 00807-CV, 2006 WL 648834, at *8 (Tex. App.—Houston [1st Dist.] Mar. 16, 2006, pet. denied) (finding that a company’s financial loss due to employees spending time on depositions and discovery did not constitute damages in the same lawsuit). o 8 See Response at 7 (citingC Martin-Simon v. Womack, 68 S.W.3d 793, 797 (Tex. App.—Houston [14th Dist.] 2001, pet. denied) for the proposition that “attorney’s fees are recoverable only when an agreement between the parties so provides.”). This is in adilrect conflict with multiple subsequent Texas Supreme Court cases. See, e.g., Akin, Gump, Strauss, Hauer & Feldi, L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d 106, 120–21 (Tex. 2009) (finding an award of attorneys’ fees could be proper even absent an agreement between the parties). 9 Kassab continuefs to cite inapplicable caselaw throughout. For example, he cites to Riner v. Neumann, 353 S.W.3d 312, 323 (Tex. App.—Dallas 2011, no pet.) as support for his contention that “[o]ther intermediate courts of appeals have likewise refused to adopt the tort of another doctrine.” See Response at 8 n.5. This is false. Riner does not mention the tort of another doctrine. See generally Riner, 353 S.W.3d 312. Instead, the court in that case declined to adopt an exception to the American rule prohibiting recovery of attorneys’ fees in the same case absent authorization. See id. at 322. 10 Kassab cites multiple cases demonstrating that there is no wholly innocent party element to the tort of another theory. See Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d 106 (Tex. 2009); Naschke v. Gulf Coast Conference, 187 S.W.3d 653 (Tex. App.—Houston [14th Dist.] 2006, pet. denied); Brannan Paving GP, LLC v. Pavement Markings, Inc., 446 S.W.3d 14 (Tex. App.—Corpus Christi 2013, pet. denied). Kassab’s reliance on the idea of a wholly innocent party exception is not consistent with the history of this theory. See James Michael Stanton, Recovering Attorney’s Fees in Equity Under Texas Law: Why Some Texas Courts of Appeal Have It Wrong, 29 T. Marshall L. Rev. 243, 278 (2004). 11 regardless, Kassab is incorrect that the Jury found that Pohl’s trade secrets damages were caused by Pohl’s conduct. In response to Question 4—which was the proportionate responsibility question specifically tied to the trade secrets claim—the Jury assigned Pohl 0% of the fault. See Ex. A to the Motion at 10. Kassab ignores this question and instead contends the kJury’s response to Question 3 shows that Pohl is not “wholly innocent.” See Response at 9. Blut this question is not tied to the misappropriation of trade secrets. See Ex. A to the Motiocn at 9. In fact, the Jury specifically asked if they should still answer Question 3 even if theys found that no trade secrets existed. With the agreement of counsel for Kassab, the Court insstructed the Jury that they should still respond to Question 3 even if they answered “No” to both parts of Question 1. The attorneys’ fees Pohl incurred in underlying proceedings as the result of Kassab’s wrongful conduct are recoverable as Pohl’s actual losses in this lawsuit. Kassab’s arguments otherwise are not supported by binding caselaaw and rely in large part on the misleading use of caselaw. The Court should reject Kassab’s arguments and enter judgment in favor of Pohl for the full amount of actual loss damages foeund by the Jury. B. Rule 17.09 of the fTexas Rules of Disciplinary Procedure is not applicable. As a threshold mattyer, this lawsuit is not predicted on Kassab filing a grievance or participating in the grCievance process. Thus, Rule 17.09 of the Texas Rules of Disciplinary Procedure does not aapply, and the Court should reject Kassab’s argument otherwise. See Response at 10. This issufe has been briefed extensively before, and Pohl will not repeat the same arguments further. PUohl incorporates this prior briefing by reference. See, e.g., Pohl’s Rule 166(g) Motion, at 12–14, filed Nov. 30, 2022 (including the briefing discussed therein). Bottom line, the Court rejected Kassab’s position on this issue before and should reject it again now. 12 III. Pohl’s requested damages are not improperly overlapping. Pohl’s requested damages are not overlapping. TUTSA explicitly authorizes the recovery of both actual damages, and unjust enrichment “that is not taken into account in computing actual loss.” Tex. Civ. Prac. & Rem. Code § 134A.004. Kassab agrees that the marketk value damages found by the Jury are “actual loss” damages. Response at 11. He also agrees lthat the Jury found unjust enrichment damages in the form of avoided development costs. Idc. The only question is if those damages are overlapping. s Here, the Jury was specifically told that it should “not award any sum of money on any element if you have otherwise, under some other element in this question, awarded a sum of money for the same loss.” See Ex. A to the Motion at 13. Once again, the Court must presume that the Jury followed its instructions. Columbia Rio Grande Healthcare, L.P., 284 S.W.3d at 862. The damages are not overlapping because the Jury could have found that the market value damages compensated Pohl for the loss of value of his trade secrets going forward, as this value was destroyed by their improper use and edisclosure by Kassab. The Jury also could have found that this was separate from the loss fassociated with Kassab’s unjust enrichment based on avoided development costs that wouyld otherwise have been incurred in the past. Because the Jury could have viewed this unjuCst enrichment as not being accounted for in its award of “actual loss” damages, it is not dauplicative under TUTSA. IV. Texas cfontinues to recognize that conspirators are jointly and severally liable. Kassab argues that the Court should ignore the Jury’s conspiracy finding because he contends that conspiracy is “either preempted by TUTSA or subject to the [statutory] proportionate responsibility scheme.” See Response at 11. Kassab cites no binding precedent holding that Pohl’s conspiracy claim is improper, and the Court should reject Kassab’s arguments. 13 Based on unpublished federal cases, Kassab claims “courts have concluded that Chapter 33’s proportionate responsibility scheme applies to conspiracy claims, rather than joint and several liability.” See id. at 12. But Kassab ignores contrary published Texas caselaw. The Dallas Court of Appeals stated that it rejected “the premise that Chapter 33 superseded thek rule that civil conspiracy findings result in joint and several liability.” Guillory v. Dietrichl, 598 S.W.3d 284, 296 (Tex. App.—Dallas 2020, pet. denied). Other Texas appellate courtcs have come to the same conclusion. See, e.g., Stephens v. Three Finger Black Shale P’ship,s 580 S.W.3d 687, 719 (Tex. App.—Eastland 2019, pet. denied) (We are of the opinion that sjoint and several liability attaches to a civil conspiracy finding and is not affected by the proportionate responsibility statutes.”). Kassab also has no Texas caselaw finding there can no longer be a conspiracy to misappropriate trade secrets to support his TUTSA preemption argument. See Response at 11–13. The absence of this caselaw is telling. Undaer the facts of this case, there is no reason to find preemption. TUTSA provides that it “displaces conflicting tort, restitutionary, and other law of this state providing civil remedies fore misappropriation of a trade secret.” Tex. Civ. Prac. & Rem. Code § 134A.007(a) (emphasis afdded). Conspiracy does not provide a conflicting remedy in this case.11 It merely provides thyat damages are joint and several. Conspiracy, likCe proportionate responsibility, does not provide a conflicting remedy that is preempted under TUTSA. Texas trial courts have continued to submit TUTSA and conspiracy claims to the jufrfy.12 Pohl’s TUTSA claim provides the remedy—damages for the misappropriation 11 As an aside, Kassab’s TUTSA expert, Joseph Cleveland, appears to assume that allegations of conspiracy can exist alongside a TUTSA claim, as he makes no mention of preemption in discussing them in conjunction with each other. Cf. Joseph F. Cleveland, Jr., J. Heath Coffman, Kevin C. Smith, A Practitioner's Guide to the Texas Uniform Trade Secrets Act, Tex. J. Bus. L. 1, 16 (2019) (discussing how pleading conspiracy in connection with a TUTSA claim “will virtually guarantee that the TCPA applies”). 12 See, e.g., Whitlock v. CSI Risk Mgmt., LLC, No. 05-19-01297-CV, 2021 WL 1712215, at *13 (Tex. App.—Dallas Apr. 30, 2021, pet. denied), reh'g denied (June 7, 2021) (holding that the conspiracy finding was supported by the underlying tort of misappropriation of trade secrets). 14 of Pohl’s trade secrets. Applying proportionate responsibility would modify that remedy so a defendant is responsible for a percentage of the harm. Kassab does not dispute that TUTSA permits this modification of the remedy.13 Similarly, applying conspiracy simply makes the same remedy apply jointly and severally among multiple defendants. That is no more okbjectionable or inconsistent with TUTSA than the proportionate responsibility statute. The Clourt should reject Kassab’s selective and incorrect invocation of TUTSA preemption. c V. The Jury’s misappropriation findings are consistent with seach other. As a threshold matter, Kassab waived his right to object on the basis of any alleged inconsistency in the Jury Verdict by not asserting any objections prior to the dismissal of the Jury. See Bryan v. Papalia, 542 S.W.3d 676, 692–93 (Tex. App.—Houston [14th Dist.] 2017, rev. granted, judgm’t vacated w.r.m.); Bruce v. Oscar Renda Contracting, 657 S.W.3d 453, 463 (Tex. App.—El Paso 2022, pet. filed). But even looking past Kassab’s waiver of this issue, his argument—that “the jury’s finding of no wrongdoing by Precision destreoys the misappropriation claim against Kassab”—does not make sense on its face. See Resfponse at 13. Kassab’s argument is that “because [he] acquired Pohl’s alleged trade secretsy from Precision, and the jury found that Precision acquired the information lawfully, tChen Kassab could not have misappropriated trade secrets from Pohl.” Id. at 2. But this argumenat is factually incorrect and fails for multiple reasons. First, Kafssab is wrong. The Jury had ample evidence before it to conclude that Kassab obtained UPohl’s trade secrets from Favre—by purchasing them through the November 2016 agreement—not from Precision. And the Jury did find that Favre bore some responsibility for the 13 Kassab requested that the Court include Question 4 in the Jury Charge so that the Jury could allocate responsibility for the TUTSA claim based on the proportionate responsibility statute. 15 misappropriation. See Jury Verdict, at 10, attached as Ex. A to the Motion. This is fatal to Kassab’s objection. Second, there is nothing inconsistent about the Jury finding that Precision did not misappropriate the information and Kassab did. The Jury could have found that Prekcision obtained the information lawfully because Precision obtained the information at thel request of, while working for, and while being paid by Pohl. The Jury also could have bacsed its misappropriation finding on Kassab’s post-acquisition “use” or “disclosure” of the trasde secrets, even if it did find that Kassab obtained the trade secrets directly from Precision. s  Because Kassab waived this argument, and because it based on a factually unsupported version of how Kassab obtained Pohl’s trade secrets, the Court should overrule Kassab’s objection based on a supposed inconsistency in the Jury’s misappropriation findings. CONaCLUSION WHEREFORE, premises considered, Pohl requests that the Court overrule Kassab’s objections asserted in the Response aend instead enter the Final Judgment in the form attached to the Motion as Exhibit B, and forf such other and further relief at law or in equity, to which Pohl may be entitled. y 16 Dated: September 18, 2023 Respectfully submitted, REYNOLDS FRIZZELL LLP By: /s/ Jean C. Frizzell Jean C. Frizzell State Bar No. 07484650 k 1100 Louisiana St., Suite 3e500 Houston, Texas 77002 l Tel. 713.485.7200 Fax 713.485.7250 c jfrizzell@reynoldsrfrizzell.com 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 Proceldure on this 18th day of September 2023. 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: 79681130 Filing Code Description: No Fee Documents Filing Description: Pohl's Reply ISO Motion for Entry of Final Jtudgment Status as of 9/19/2023 8:22 AM CST i Case Contacts D Name BarNumber Email e TimestampSubmitted Status Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 9/18/2023 8:21:13 PM SENT Andrew Johnson ajohnson@Bthompsoncoe.com 9/18/2023 8:21:13 PM SENT Benjamin Ritz britz@thnompsoncoe.com 9/18/2023 8:21:13 PM SENT Murray JFogler mfoglielr@foglerbrar.com 9/18/2023 8:21:13 PM SENT Murray Fogler mfogler@fbfog.com 9/18/2023 8:21:13 PM SENT Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 9/18/2023 8:21:13 PM SENT Todd Taylor ttaylor@jandflaw.com 9/18/2023 8:21:13 PM SENT Dale Jefferson 10607900 jefferson@mdjwlaw.com 9/18/2023 8:21:13 PM SENT Raul Herman Suazo 2O4003021 suazo@mdjwlaw.com 9/18/2023 8:21:13 PM SENT Scott M.Favre y scott@favrepa.com 9/18/2023 8:21:13 PM SENT Lawyer Wade o lawyerwade@hotmail.com 9/18/2023 8:21:13 PM SENT Chris C.Pappas cpappas@krcl.com 9/18/2023 8:21:13 PM SENT Non-Party Witness Billy Shepherd bshepherd@spcounsel.com 9/18/2023 8:21:13 PM SENT Non-Party Dona Pohfli DonaLyann@yahoo.com 9/18/2023 8:21:13 PM SENT Non-Party Edgar Jaimes edgarsroom@gmail.com 9/18/2023 8:21:13 PM SENT Kevin Dubose 6150500 kdubose@adjtlaw.com 9/18/2023 8:21:13 PM SENT Marisa Barrera Cruz Hurd 24041157 mhurd@adjtlaw.com 9/18/2023 8:21:13 PM SENT Andrea Mendez andrea@kassab.law 9/18/2023 8:21:13 PM SENT Lance Kassab lance@kassab.law 9/18/2023 8:21:13 PM SENT David Kassab david@kassab.law 9/18/2023 8:21:13 PM SENT Nicholas Pierce nicholas@kassab.law 9/18/2023 8:21:13 PM SENT Lance Kassab eserve@kassab.law 9/18/2023 8:21:13 PM SENT 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: 79681130 Filing Code Description: No Fee Documents Filing Description: Pohl's Reply ISO Motion for Entry of Final Jtudgment Status as of 9/19/2023 8:22 AM CST i Case Contacts D Kevin Graham Cain 24012371 cain@mdjwlaw.com 9/18/2023 8:21:13 PM SENT Murray J. Fogler 7207300 mfogler@foglerbrar.com 9/18/2023 8:21:13 PM SENT L Kassab lance@kasBsab.law 9/18/2023 8:21:13 PM SENT Kelly Skelton receptionn@kassab.law 9/18/2023 8:21:13 PM SENT Murray J. Fogler 7207300 mfoglielr@foglerbrar.com 9/18/2023 8:21:13 PM SENT Thallia Malespin tmalespin@reynoldsfrizzell.com 9/18/2023 8:21:13 PM SENT Misty Davis mdavis@reynoldsfrizzell.com 9/18/2023 8:21:13 PM SENT Harris Wells hwells@reynoldsfrizzell.com 9/18/2023 8:21:13 PM SENT D Kassab david@kassab.law 9/18/2023 8:21:13 PM SENT Harris Wells O hwells@reynoldsfrizzell.com 9/18/2023 8:21:13 PM SENT

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