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filing_id	date	doc_type	party	description	doc_type_detail	procedural_posture	chain	outcome	phase	filename	relief_requested	full_text
66	2024-01-19	MNT	Kassab	Motion for New Trial	Kassab Defendants' Motion for New Trial, filed in the alternative to the JNOV Motion, raising 22 grounds for new trial including: (1) newly discovered evidence of witness bribery/tampering (Walker 30% confession), (2-4) factual insufficiency on trade secret ownership and misappropriation, (5-6) jury charge errors on Q3 and proportionate responsibility, (7) limitations question error on Q5, (8) insufficiency on Q5 answer, (9-10) refusal to submit unlawful acts defense and immunity/privilege questions, (11) exclusion of barratry expert testimony, (12) Q6 attorney immunity question error, (13) insufficiency on Q6, (14) improper Q7(1) submission (attorney fees not TUTSA damages), (15) property owner rule error, (16) insufficiency on Q7(2)-(3), (17-18) insufficiency on willful/malicious and exemplary damages, (19) conspiracy preemption, (20) denial of responsible third party designations, (21) denial of abatement, (22) privilege/offensive use errors, and (23) dismissal of barratry counterclaims, plus insufficiency of attorney fees evidence	Post-judgment motion filed January 19, 2024, simultaneously with the JNOV Motion, within 30 days of the December 22, 2023 Final Judgment. Filed in the alternative — if Court does not grant JNOV, it should grant a new trial on any of 22 enumerated grounds.	POST-1	N/A	Phase 5	2024-01-19_MNT_Kassab-Motion-for-New-Trial_FILED.pdf	New trial on all claims — vacate final judgment and order new trial. Alternatively, new trial on specific issues and/or remittitur of exemplary damages.	1/19/2024 3:31 PM Marilyn Burgess - District Clerk Harris County Envelope No. 83597613 By: Rhonda Momon Filed: 1/19/2024 3:31 PM CAUSE NO. 2018-58419 MICHAEL A. POHL, et al. § IN THE DISTRICT COURT V. § OF HARRIS COUNTY, TEXAS SCOTT FAVRE, et al. § 281st JUDICIALk DISTRICT THE KASSAB DEFENDANTS’ MOTION FOR NEWC TRIAL In the alternative to their Motion for Judgment Notwithstanding the Verdict and to Disregard Jury Findings (“the JNOV Motion”), Defenidants Lance Christopher Kassab and Lance Christopher Kassab, P.C. d/b/a The Kassab Law Firm (“Kassab”) file this Motion for New Trial and would respectfully show as follows. SUMMARY Pohl’s claims against Kassab are barlred as a matter of law, so the Court should grant the JNOV Motion. To the extenMt the Court does not disregard findings of the jury and enter a judgment notwithstanding the verdict in favor of Kassab, it should grant a new trial for any one oif the following reasons: 1. Newly discovered evidence demonstrates that material witnesses engaged in poerjury and Pohl engaged in unlawful bribery and witness tamperinlg which resulted in the jury being deceived as to material issuesi. 2. Factually insufficient evidence supports the jury’s finding in Question 1 that Pohl owned a trade secret in (a) attorney-client fee contracts and (b) lists of Pohl’s actual, potential, or rejected clients. 3. The trial court erred by submitting Question 2, the misappropriation question, to the jury because it failed to sufficiently distinguish the acts of each defendant and included liability theories not supported by legally sufficient evidence. 4. Factually insufficient evidence supports the jury’s finding in Qukestion 2 that Kassab misappropriated Pohl’s alleged trade secreCt. 5. The Court improperly submitted Question 3 on Pohl’s “wrongful conduct” because it is not tied to the privilege quesition, proportionate responsibility question or anything else in the jury charge. 6. The Court erred by refusing to submit Kassab’s proposed jury question on immunity or privilege. 7. The Court erred by excluding explert testimony from Kassab and his experts on whether Pohl comMmitted barratry. 8. The Court erred by refusing to submit Kassab’s proposed jury question on his unlawiful acts defense. 9. The court erred in submitting Question 5, the limitations question, because it oimproperly included the words “by Kassab” when misapprolpriation of trade secrets is not a continuing tort and Pohl sued Kiassab for conspiracy and thus misappropriation by any alleged co-conspirator would have caused limitations to accrue. 10. The court erred in submitting Question 6, the attorney immunity question, because it improperly included the language “in an attorney-client relationship,” which was a comment on the weight of the evidence. 11. Factually insufficient evidence supports the jury’s answer to Question 6, which asked whether Kassab used the purported trade secrets while in an attorney-client relationship. k 12. The Court erred by submitting Question 7(1) and by alClowing Pohl and his expert John Zavitsanos to testify about the attorney’s fees incurred in the underlying barratry proceedings beicause the question and testimony related to an improper element of damages for a TUTSA claim. 13. The trial court erred by allowing Pohl to testify on lost revenue, lost profits, or the purported value lof the trade secrets because the property owner rule does noMt apply, and Pohl was not designated to testify on those issues. 14. Factually insufficienit evidence supports the jury’s answer to Questions 7(2) and (3). 15. Factually insoufficient evidence supports the jury’s finding that “the misapprolpriation of Pohl’s trade secret(s) by Kassab was willful and maliciious” (Question 8) based on “clear and convincing evidence” (Question 17). 16. Factually insufficient evidence supports the jury’s finding of exemplary damages in Question 19. 17. The Court improperly submitted Question 15 because conspiracy is pre-empted by TUTSA or Chapter 33. 18. The Court erred by denying Kassab’s designation of responsible third parties, including Billy Shepherd, Donalda Pohl, Edgar Jaimes, Ken Talley and Magdalena Santana, which would have materially kaltered the jury’s verdict. C 19. The Court erred by denying Kassab’s motion to abate this case pending resolution of the related civil barratry liitigation currently pending against Pohl in which Pohl claims attorney’s fees as damages. 20. The Court erred by allowing Pohl to assert affirmative claims against Kassab but then withhold relevant and material information based on purported claims of privilege. l 21. The Court erred by dismiMssing Kassab’s counterclaims for civil barratry. 22. Factually insufficienti evidence supports the jury’s award of attorney’s fees because the testimony from Pohl’s expert was conclusory and the invoices wereo heavily redacted. l ARGUMENT I. Niewly discovered evidence demonstrates that Pohl oengaged in unlawful bribery and witness tampering that materially affected the jury verdict. A motion for new trial is appropriate based on newly discovered evidence. See TEX. R. CIV. P. 324(b)(1). Evidence that could not be discovered by Kassab until after trial demonstrates that this jury verdict was impacted by key witnesses changing their testimony because of Pohl’s bribery and witness tampering, resulting in a fraud on this Court. Specifically, in a December 8, 2023 recorded telephone call with Kassab, Scott Walker, one of Pohl’s purported former agents and a key witness kin this case, confessed that he and Kirk Ladner1 were promised 30 percentC of any judgment against Kassab in exchange “for our depositions and our testimony and our positions on certain things that, you know, helped and – in getting ithat judgment.”2 Walker further stated that Pohl made that offer before their depositions3 and that Walker and Ladner were “coached on how to be deposed.”4 Walker candidly admitted that he “felt like [he] should call because … the whole premise of the depositions was based on the 30 percent that we were promised.”5l Walker’s candid after-trial revMelation demonstrates that Pohl obtained the judgment against Kassab by committing witness tampering and suborning Walker’s and Ladner’s aggravated perjuiry.6 A person commits the criminal offense of witness 1 Walker and Ladner were co-owners of Precision Marketing Group, a defendant in this case. Pohl claimed that because thCey were his agents, they had an obligation to preserve his purported trade secrets. 2 Exhibit 1, Audio cTranscription, 5:6-15. Lance Kassab has authenticated the audio transcription with his declaration, afttached as Exhibit 2. Additionally, the entire audio is hosted on Dropbox and may be accessed via this link: https://www.dropbox.com/scl/fi/q3cgwnq8kzud4zpa3hlgx/December-8-2023- Call-withU-Scott-Walker.m4a?rlkey=4srkzuiwva8af9ywq4qaun8zx&dl=0 3 Exhibit 1, Audio Transcription, 5:20-23. 4 Exhibit 1, Audio Transcription, 6:3-17. 5 Exhibit 2, Declaration of Lance Kassab. 6 Walker’s out of court statements are not hearsay because they would expose Walker to criminal tampering if they, with the intent to influence a witness, confer or agree to confer any benefit on a witness or prospective witness in an official proceeding, to testify falsely or withhold any testimony or information. Id. at § 36.05(a). Walker’s statements demonstrate that Pohl did that by offering him and Ladner 30 pekrcent of any judgment against Kassab in exchange for their favorable and untrCuthful testimony. Aggravated perjury occurs if the person, with intent to deceive, makes a false statement under oath in an official proceeding. TEX. P DENi. CODE §§ 37.02, 37.03. Walker stated that he and Lardner testified in their depositions, under oath and in official proceedings, about “facts that weren’t necessarily told the correct way or told on how it really happened.”7 Moreover, Walker made it clear that these fale statements were made with the intent to dleceive because “the whole premise of the depositions was based on the 30 perceMnt that we were promised.”8 Moreover, the false testimony from Walker and Ladner drastically changed the course of the trial and resulteid in the fraudulent judgment. Although Walker and Ladner testified one way in the Mississippi litigation they brought against Pohl, when they were deposed in tohis case they reversed course on seminal issues of barratry and ownership of Pohl’ls purported trade secrets. liability. SUee TEX. R. EVID. 803(24)(A) (excluding from hearsay those statements that have a tendency “to expose the declarant to civil or criminal liability.”). Additionally, the statements by Walker are excluded from hearsay because, as Pohl testified at trial, Walker was his agent or because they are made by a co-conspirator. TEX. R. EVID. 801(e)(2)(D), (E). 7 Exhibit 1, Audio Transcription, 6:3-17. 8 Exhibit 2, Declaration of Lance Kassab. For instance, in his deposition in the Mississippi litigation, Walker testified that Pohl paid Precision $5 million in “barratry money” to unlawfully solicit clients.9 In that deposition, Walker testified it was “clear to [him] it was barratry.”10 But in this case, after being coached by Pohl, Walker recanted that testimony,k and took the position that he “didn’t know what barratry meant until [his lawyerC in the Mississippi litigation] Tina [Nicholson] taught [him] well on how to say the word”11 and “advised” him to lie.12 But then in the unsolicited recorded phone caill, Walker confessed that “it was barratry.”13 Walker admitted he was “coached on how to be deposed” in this case and acknowledged that “some of the things that we were doing was, in fact, barratry, you know, and I still feel like it was and I think – I do believe it was.”14 Walker’s testimony about ownershipl of information that Pohl claimed were his trade secrets was also impacted by PoMhl’s witness tampering. Walker initially signed an agreement that confirmed the 17 boxes of materials at issue in this lawsuit were owned by Precision and not Piohl. But after being coached by Pohl, Walker took the position in his deposition in this case “[w]hat I believed was that they were in our possession. I did not boelieve that we owned them.”15 But in the unsolicited recorded 9 Exhibit 3, August i24, 2016 Deposition of Scott Walker, at 72-77, 196-197. 10 Exhibit 3, Aufgust 24, 2016 Deposition of Scott Walker, at 149. 11 ExhibitU 4, August 31, 2022 Deposition of Scott Walker, at 385. 12 Exhibit 4, August 31, 2022 Deposition of Scott Walker, at 384. 13 Exhibit 1, Audio Transcription, 8:14. 14 Exhibit 1, Audio Transcription, 8:12-24. 15 Exhibit 4, August 31, 2022 Deposition of Scott Walker, at 147-149. phone call, Walker admits that “the whole premise of [his and Ladner’s] depositions was based on the 30 percent that [they] were promised.”16 Because Walker’s and Ladner’s false deposition testimony in this case on these seminal issues was inconsistent with their testimony from the Mississikppi litigation, Kassab decided not to call Walker and Ladner as live witnesses at Ctrial.17 If Pohl had not engaged in unlawful witness tampering and bribery, Walker and Ladner presumably would have testified truthfully in their depositiions that Pohl hired them to commit barratry, and that Precision owned the file documents that were sold to Scott Farve and that the materials were Precision’s work product, not Pohl’s trade secrets. If they had testified truthfully, Kassab would have called them as witnesses,18 and that testimony would halve had a material impact on the jury’s verdict. Specifically, that testimonyM would have impacted the jury’s answers to Question 1 and 2, which asked whether Pohl owned a trade secret, whether Kassab engaged in any misappropriatiion, and whether that misappropriation was regular or willful; and it would have impacted the answer to Question 4, regarding Pohl’s percentage of responosibility for causing the attorney’s fees associated with the barratry litigationl. In other words, the newly discovered evidence demonstrates that the jury was dieceived on material issues. 16 Exhibit 1, Audio Transcription, 11:23-24. 17 Exhibit 2, Declaration of Lance Kassab. 18 Exhibit 2, Declaration of Lance Kassab. Accordingly, the Court should grant a new trial in light of this newly discovered evidence. See In the Interest of E.S., No. 02-20-00407-CV, 2021 Tex. App. LEXIS 4153, at 24 (Tex. App.—Fort Worth May 27, 2021, pet. denied) (mem. op.) (“In cases where a witness willfully testifies falsely regarding a material fact, a new ktrial may be granted.”); In re Marriage of Hutcherson, 2019 Tex. App. LECXIS 8719, at 10 (vacating judgment when “that the award is based on false testimony, and the [fact finder] was deceived as to a material issue.”); Dixie Gas i& Fuel Co. v. Jacobs, 47 S.W.2d 457, 462 (Tex. Civ. App. – Beaumont 1932, writ dism'd w.o.j.) (where affidavits presented with motion for new trial showed judgment was based on perjury, trial court erred in denying motion for new trial); Rosebud Sioux Tribe v. A & P Steel, Inc., 733 F.2d 509, 521-522 (8th Cir. 1984) (disltrict court abused its discretion by failing to grant new trial based on newly dMiscovered evidence that party paid witness to testify falsely). II. Factually insuffiicient evidence supports the jury’s finding in Question 1f that Pohl owned a trade secret in (a) attorney-client fee contracts and (b) lists of Pohl’s actual, potential, or rejected clients. Factually insufficient evidence supports the jury’s answer to Question 1, which asked whether Piohl owned a trade secret in either attorney-client fee contracts or lists of Pohlo’s actual, potential or rejected clients. As a matter of law, Pohl cannot own a trade secret in attorney-client contracts because they are owned by the client. See In re George, 28 S.W.3d 511, 516 (Tex. 2000) (“The attorney is the agent of the client, and the work product generated by the attorney in representing the client belongs to the client.” (emphasis added)). Any testimony from Pohl or his expert witness John Zavitsanos to the contrary was conclusory, made without foundation or legal authority, and amounts to no evidence. Conversely, the testimony from Kassab and his experts established that the attorney- client contracts are owned by the clients, not Pohl. Their testimony is ksupported by Texas law governing ownership of client-related materials.19 ECven Pohl’s office manager, Mary Francis Arnold, testified that she did not consider the attorney-client contracts trade secrets. Thus, there was insufficient evideince to support the jury’s answer to Question 1(a), which concluded that Pohl had rightful, legal or equitable title to the attorney-client fee contracts. Insufficient evidence also supports the jury’s answer to Question 1(b), finding that Pohl owned a trade secret in “[a]ny lislt of the identities and contact information of [his] actual, potential or rejected clMients.” Pohl testified that he did not have a list. Rather, the lists were created by another attorney named Jimmy Williamson and Precision. The current owner iof Precision, Scott Favre, testified that Precision’s list was owned by Precision, not Pohl. Pohl’s office manager also testified that the lists were created by Precoision, not Pohl. There was no testimony from any witness to establish that Pohll was the “owner” of any of the lists of clients that were provided to Kassab. i Pohl also failed to present evidence that the information “derives independent 19 The fact that Pohl can assert a lien over the client file does not mean he is the rightful, legal, or equitable owner of the contracts. See In re McCann, 422 S.W.3d 701, 706 (Tex. Crim. App. 2013) (noting that “a lien, by its definition, is a transitory interest in someone else's property and, therefore, the attorney asserting such a lien never owns the property at issue, the client owns the file by implication (if the attorney does not)”) (emphasis added). 10 economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, another person who can obtain economic value from the disclosure or use of the information.” TEX. CIV. PRAC. & REM. CODE § 134A.002(6)(B). To meet his burden of proving misappropriaktion of trade secrets, Pohl was required to prove that the information misapprCopriated provided him with a “competitive advantage.” Fmc Techs. v. Murphy, No. 01-21-00455-CV, 2023 Tex. App. LEXIS 5984, at 62 (Tex. App.—Houston i[1st Dist.] Aug. 10, 2023, pet. filed) (mem. op.). Pohl failed to present factually sufficient evidence — or any evidence — to establish what competitive advantage the information provided him to the exclusion of others. Moreover, Pohl failed to offer evidelnce to establish that he took “reasonable measures under the circumstances toM keep the information secret.” TEX. CIV. PRAC. & REM. CODE § 134A.002(6). The uncontroverted evidence established that the attorney- client contracts were not mariked “confidential” or “trade secret” and that multiple individuals in the underlying BP and auto accident litigation had unfettered access to the information. Poohl’s office manager testified that she did not secure the attorney-client conltracts “in any form or fashion.” She testified that Pohl never told her the attorniey-client contracts were his trade secrets, and that the owners of Precision kept the information Pohl claimed were his trade secrets in a storage unit to which anyone could have access to. She further testified that she kept the information at her home in unlocked cabinets without any instruction from Pohl to secure the information. The same information was also kept unsecured in Ladner’s 11 garage for months. Moreover, the client-related information was not a trade secret because it was generally known to third parties. or Pohl to submit a claim to BP, he had to disclose client-related information to BP. Further, the uncontroverted testimkony at trial established that the list of master clients was voluntarily prodCuced in discovery during the Mississippi litigation to Favre, Tina Nicholson and several third parties20 in August 2016 – before the information was provided ito Kassab – without a protective order, confidentiality stamp, confidentiality agreement, or anything else prohibiting its disclosure. Additionally, the master list of clients was posted publicly online through PACER in the Mississippi litigation for more than six years and is still there today. Based on the evidence, a lreasonable jury could not have concluded that Pohl used reasonable measures uMnder the circumstances to keep the information secret. III. The Court erreid by submitting Question 2 to the jury because it failefd to sufficiently distinguish the acts of each defendant and included liability theories not supported by legally sufficient evidence. Pohl sued Kassab for indirect misappropriation under subsection 134A.002(3)(B) fior allegedly “misappropriating Pohl’s trade secrets by using them without thoe express or implied consent of Pohl” in violation of Section 134A.002(3)(B).21 Pohl made no allegation, and presented no evidence, that Kassab 20 Those parties included, among others, Nathan Farmer, Charles Mikhail, Carl Hagwood, James Welch, Scott Walker, Steve Seymour, Kirk Ladner, Cyndi Rusnak, Marian Mchehee, Yousef Nasrallah, Trevor Brock and Robin Gross. 21 Plaintiffs’ First Amended Petition, ¶ 42. 12 engaged in direct misappropriation and acquired Pohl’s purported trade secrets through improper means in violation of Section 134.002(3)(A). Yet, Question 2 improperly tracked the language of Section 134.002(3)(A) and therefore a theory of liability against Kassab for direct misappropriation that was neitkher pled nor supported by the evidence. See Tex. Comm'n on Human RightsC v. Morrison, 381 S.W.3d 533, 537 (Tex. 2012) (“A broad-form question cannot be used to put before the jury issues that have no basis in the law or the evidence.”) (iinternal quotation marks omitted); Title Source, Inc. v. HouseCanary, Inc., 612 S.W.3d 517, 531 (Tex. App.— San Antonio 2020, pet. denied) (“Because those theories are not supported by the evidence, they should have been omitted from the ‘improper means’ definition that was submitted to the jury.”). l Moreover, Pohl alleged onMly that Favre, Precision and Nicholson misappropriated his trade secrets “by theft.”22 Yet the definition of “improper means” in the jury charge was incorrecitly defined to include multiple other acts besides theft: Because there was no allegation or evidence that the alleged misappropriation occurred nby any means other than theft, the definition was improper. See HouseCanary, 612 S.W.3d at 531 (submission of definition of “improper means” that included “bribery” and “espionage” was improper when “there is no evidence [the 22 Plaintiffs’ First Amended Petition, ¶ 41. 13 defendant] acquired the trade secrets through bribery [or] through espionage.”). The jury was influenced by the erroneous inclusion of the additional misappropriation theories. Pohl alleged that Precision and its former owners were the first to appropriate Pohl’s purported trade secrets, first by convertking them and using them in the Mississippi litigation, and then selling them tCo Favre, who then allegedly sold them to Kassab. Despite that, the jury found that Precision did not engage in any wrongful misappropriation. Yet, the jury coincluded that Kassab did misappropriate the information he acquired from Favre and found Kassab 70% responsible for Pohl’s alleged damages. Because Pohl heavily emphasized the evidence of misappropriation by others through means not relevant to Kassab, the Court cannot rule out the possibility that lthe jury found misappropriation based on those theories. That is sufficient to deMmonstrate harm from the erroneous submission of unpled and unproven theories of misappropriation. See Tex. Comm'n on Human Rights v. Morrison, 381 S.W.3id 533, 537 (Tex. 2012) (“[W]hen a broad-form question allows a finding of liability based on an invalid theory, an appealing party does not have to prove that thoe jury actually relied on the invalid theory.”). The inclusion of those issues in thle charge constituted harmful error. See Crown Life Ins. Co. v. Casteel, 22 S.Wi.3d 378, 389 (Tex. 2000). IV. Factually insufficient evidence supports the jury’s finding in Question 2 that Kassab misappropriated Pohl’s trade secret. Pohl alleged that Favre and Precision illegally misappropriated trade secrets from him, and that Kassab subsequently committed indirect misappropriation by 14 acquiring illegally misappropriated trade secrets from Favre and Precision.23 Although Pohl originally sued Precision, he non-suited his claims against Precision. Nevertheless, Precision was designated as a responsible third party, and defined in the charge to include Precision’s former owners (Scott Walker, Steve kSeymour and Kirk Ladner) prior to May 12, 2015 and Favre after May 12, 2015C.24 When the jury was asked whether Precision misappropriated trade secrets from Pohl, it found that Precision did not.25 It also answered “0” in Question 4 whein asked what percentage of the “fault that caused the injury” was attributable to Precision.26 This finding demonstrates that there is insufficient evidence that Kassab engaged in misappropriation. To be liable for misappropriation balsed upon the acquisition of a trade secret, Kassab must “know[] or ha[ve] reasonM to know that the trade secret was acquired by improper means” or “derived from or through a person who used improper means to acquire the trade secret.” TEXi. CIV. PRAC. & REM. CODE §§ 134A.002(3)(A), (B)(ii)(a). 23 Plaintiff’s First Amendedp Petition, at ¶ 21 (“Favre and Precision illegally misappropriated Pohl’s proprietary ando confidential information and property …which included information about and/or communicCations with as many as 10,000 or more of Pohl’s clients/prospective clients. Favre and Precision stole physical copies of certain of the information, stole Pohl’s computers, and misappropriateda electronic data to which they had access through Precision’s work for Pohl.”) (emphasis addedc); iid. at ¶ 40 (“Favre, Precision, and Nicholson willfully and maliciously misappropriated iPohl’s trade secrets by acquiring them through improper means—specifically, by theft.”); id. at o¶ 41 (“Favre, Precision, and Nicholson willfully and maliciously misappropriated Pohl’s trade secretns by disclosing them via sale to Kassab and Montague (who purchased the trade secret inUformation knowing that it had been stolen) without the express or complied consent of Pohl.”) (emphasis added); id. at ¶ 42 (“All Defendants willfully and maliciously misappropriated Pohl’s trade secrets by using them without the express or implied consent of Pohl.”). 24 Verdict, at Definitions. 25 Verdict, Question 2(a)(3) and 2(b)(3). 26 Verdict, Question 4(3). 15 But here, the jury determined that Precision did not engage in any misappropriation.27 And if Precision and its former owners did not engage in misappropriation by transferring the information to Favre, then Favre could not have acquired the information by improper means. The jury’s finding that Pkrecision, and those associated with Precision, did not misappropriate anything —C meaning it either owed no duty to Pohl or breached no duty to Pohl when it provided Pohl's alleged information to Favre, who then provided it to Kassab — pirecludes liability against Kassab for indirect misappropriation. Even if the jury found that Precision had misappropriated this information, there is insufficient evidence that Kassab knew the information had been acquired by improper means. See TEX. CIV. PRACl. & REM. CODE § 134A.002(3)(A). The testimony was that Favre purchased PMrecision, which certified to Favre that it owned the information at issue, and then Favre provided that information to Kassab, after certifying to Kassab that the iinformation belonged to Precision and not Pohl. Thus, Pohl presented no evidence that Kassab knew or had reason to know that the information was a traode secret owned by Pohl – as opposed to information owned by Precision – nor wals there evidence that the information was obtained by Favre or Precision throuigh improper means. V. The Court improperly submitted Question 3 on Pohl’s “wrongful conduct” because it was not tied to any portion of the charge. Question 3 asked the jury “Did the wrongful conduct of Pohl, if any, contribute 27 Verdict, Question 2(a)(3) and 2(b)(3). 16 to the injury, if any, found by the jury?” This question is improper because it was not tied to any other part of the charge, so that this important finding against Pohl is left hanging by itself, when it should have been directly relevant to other parts of the charge, including Question 4, the proportionate responsibility questionk, Question 6, the attorney immunity question, and Kassab’s unlawful acts, privilCege and immunity questions, which were improperly refused (see infra at Section VIX). VI. The Corut improperly refused Kassabi’s proportionate responsibility question. Kassab submitted a proper proportionate reseponsibility question, which was refused. That question instructed the jury to uanswer the question that if they answered the misappropriation question “yes” as to Kassab or “yes” to the question about Pohl’s wrongful conduct. The propaosed question asked: “What percentage of the fault that caused the injury do you find to be attributable to each of those listed below and found by you in your answeers to have been at fault” and then listed Pohl and Kassab and other defenda ntfs.28 The Court erred by refusing that question. If that question had been properly submitted, the jury likely would have assigned some responsibility to Pohl for his injuries. Instead, tihe Court submitted Question 4, which asked the jury “[w]hat percentage oof the fault that caused the injury do you find to be attributable to each of those listed below and found by you in your answers to Question No. 2 to have been at fault.” The jury put “0” for Pohl because Pohl was not identified in Question 2, which asked what parties misappropriated Pohl’s alleged trade secrets. Question 4 28 Exhibit 5, Refused Proposed Question 7. 17 should have indicated that if the jury finds that Pohl contributed to causing the injury, it should assign a percentage of fault to Pohl. The language in Question 4 was improper. VII. The court improperly submitted the limitations qukestion (Question 5) with the limiting words “by Kassab” e because it failed to allow for the possibility that misappCropriation by any alleged co-conspirator would have caused limitations to accrue. Question 5 asked: “[b]y what date should Pohl, in tihe exercise of reasonable diligence, have discovered the acquisition, use or disclosure of his trade secrets by Kassab?” The Court erred by adding the words “by Kassab.” Because Pohl sued Kassab for conspiracy and misappropriation accrued upon the first act of misappropriation by Kassab’s alleged co-clonspirators. So this limitations question should have asked when the misapprMopriation occurred in a way that included the earlier acts of Kassab’s alleged co-conspirators, rather than being limited to him. “A person must bring suiit for misappropriation of trade secrets not later than three years after the misappropriation is discovered or by the exercise of reasonable diligence should haveo been discovered.” TEX. CIV. PRAC. & REM. CODE 16.010(a). “A misappropriation lof trade secrets that continues over time is a single cause of action and thie limitations period described by Subsection (a) begins running without regard to whether the misappropriation is a single or continuing act.” Id. at § 16.010(b) (emphasis added). In other words, TUTSA “explicitly precludes treating trade secret misappropriation as a continuing tort.” Gen. Universal Sys. v. HAL Inc., 500 F.3d 444, 451 (5th Cir. 2007). 18 “A cause of action for trade-secret misappropriation accrues when the trade secret is actually used.” Sw. Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 721 (Tex. 2016). Here, the evidence demonstrated that Pohl knew the files and materials he claims are his trade secrets had been misappropriated and used by kPrecision and its former owners Walker, Ladner and Seymore in June 2014, wChen they used the client related information in the Mississippi litigation to file claims against Pohl. “Use of the trade secret means commercial use by which the offeniding party seeks to profit from the use of the secret.” Id. That was the first act of misappropriation, which began accrual of limitations. TEX. CIV. PRAC. & REM. CODE 16.010(b). The next alleged act of misappropriation occurred when Precision’s former owners again profited from the alleged tralde secret information by selling Precision and its files, including the alleged trMade secret information, to Favre in May 2015. “Use” of a trade secret means “any exploitation of the trade secret that is likely to result in injury to the trade siecret owner or enrichment to the [non-trade secret owner].” Sw. Energy, 491 S.W.3d at 722 (emphasis added). Because Pohl was aware that Precision had usoed these purported trade secrets in May 2015, he was required to file his claims algainst Kassab and other alleged coconspirators before May 2018, at the latest. S iee TEX. CIV. PRAC. & REM. CODE 16.010(a). Pohl did not file this lawsuit until August 2018, more than three years after Precision and Favre used Pohl’s purported trade secrets, alleging Kassab, Favre and Precision “engaged in a scheme pursuant to which they illegally obtained, maintained, and used trade secrets and other confidential information and property 19 belonging to Pohl.”29 Pohl argued that his claims against Kassab did not accrue until September 19, 2017, when the court in the Mississippi litigation ordered the expert retainer agreement between Favre and Kassab to be produced, which Pohl chakracterized as an agreement to purchase the purported trade secrets. But transfeCr or use of already- misappropriated trade secrets by a purported co-conspirator does not re-start the limitations clock. See TEX. CIV. PRAC. & REM. CODE 16. 01i0(a); Agar Corp., Inc. v. Electro Circuits Int'l, LLC, 580 S.W.3d 136, 145 (Tex. 2019) (rejecting the “last-overt- act accrual rule” and concluding that conspiracy claim for misappropriation of trade secrets accrues against all co-conspirators “when the underlying tort accrues.”) (citing with approval Harang v. Aetna Life Ins. Clo., 400 S.W.2d 810, 813 (Tex. Civ. App.— Houston 1966, writ ref'd n.r.e.) (concMluding limitations runs from when the injury occurs and therefore conspiracy claim against the late-added co-conspirators was time-barred)). In other words,i “[a] conspiracy claim based on an earlier underlying tort does not re-accrue when the co-conspirators agree to commit a second tort or make another overt aoct.” Agar Corp., 580 S.W.3d at 145. Therefore, ilt is irrelevant when Pohl discovered his purported trade secrets had been useid “by Kassab” as opposed to other alleged co-conspirators. See id. (conspiracy claim against co-conspirator time barred because the claim accrued when trade secrets were used initially used by other coconspirators, not when alleged coconspirator later purchased the trade secret information). The proper inquiry is the 29 Plaintiffs’ Original Petition, ¶ 2 20 question submitted by Kassab that this Court erroneously refused: “[b]y what date should Pohl, in the exercise of reasonable diligence, have discovered the acquisition, [use] or disclosure of his trade secrets?” See TEX. CIV. PRAC. & REM. CODE 16.010(a) (claim for misappropriation accrues when “misappropriation is discovekred or by the exercise of reasonable diligence should have been discovered.”);C Sw. Energy, 491 S.W.3d at 722 (“the statute of limitations did not begin to run until [the plaintiff] knew or should have known of facts that in the exercise of reiasonable diligence would have led to discovery of the misappropriation.”); Agar Corp., 580 S.W.3d at 146 (claims against co-conspirators accrue on the same date as the first overt act). The Court therefore should not have included the “by Kassab” language in the charge. VIII. Insufficient evidence sulpports the jury’s answer to Question 5. a In Question 5 the jury found that Pohl should have discovered the acquisition, use or disclosure of his trade alleeged trade secrets by Kassab by August 19, 2017. The uncontroverted evidence demfonstrated that Pohl knew his materials he claims as trade secrets had been appropriated and used by Precision and its former owners in June 2014, when they used the client related information in the Mississippi litigation to file claims agaiinst Pohl. Pohl testified that Kassab was part of the “team of thieves” who commiotted that alleged theft in 2014. Thus, Pohl should have known of Kassab’s alleged conspiracy to misappropriate his alleged trade secrets no later than June 2014. At the latest, Pohl should have discovered the acquisition, use or disclosure of his trade secrets in May 2015 when Precision’s former owners again profited from the 21 alleged trade secret information by selling Precision and its files, including the alleged trade secret information, to Favre, who Pohl alleged was Kassab’s co- conspirator. Reasonable jurors could not disregard this evidence. IX. The Court erred by refusing to submit Kassab’s prokposed jury question on his unlawful acts defense (Peroposed Question 6) and immunity and privilegeC defense (Proposed Question 8). The trial court is required to submit questions raised bty the written pleadings and the evidence. TEX. R. CIV. P. 278. This is a “sub stantive, non-discretionary directive to trial courts requiring them to submit reequested questions to the jury if the pleadings and any evidence support them.” Eulbaor v. Smith, 845 S.W.2d 240, 243 (Tex. 1992). A trial court may refuse to submit an issue only if no evidence exists to warrant its submission. Id. Kassab reaquested the Court to submit two proposed questions relating to his affirmative defenses raised in his pleadings, which the evidence supported. e First, Kassab requestfed that the Court submit Proposed Question 6, which asked, “Did Pohl commit unlawful or unethical conduct including barratry or the unauthorized practice of law to acquire the information he is claiming as trade secrets?”30 That iquestion was proper and directly relevant to Kassab’s unlawful acts defense, whoich provides that “no action will lie to recover a claim for damages, if to establish it the plaintiff requires aid from an illegal transaction, or is under the necessity of showing or in any manner depending upon an illegal act to which he is a party.” Gulf, C. & S. F. RY. Co. v. Johnson, 621, 9 S.W. 602, 602-03 (1888). “Courts 30 Exhibit 6, Refused Proposed Question 6. 22 have interpreted this defense to mean that if the illegal act is inextricably intertwined with the claim and the alleged damages would not have occurred but for the illegal act, the plaintiff is not entitled to recover as a matter of law.” Sharpe v. Turley, 191 S.W.3d 362, 366 (Tex. App.—Dallas 2006, pet. denied). Courts havek applied the doctrine without a conviction of a crime so long as “the unlawfCul act barring the plaintiff's claim was in fact illegal conduct.” McNally v. McNally, No. 02-18-00142- CV, 2020 Tex. App. LEXIS 7211, at 27 (Tex. App.—Fort iWorth Sep. 3, 2020, pet. denied) (mem. op.). There was substantial evidence to support submission of this proposed question. Pohl’s own testimony demonstrated that he committed the unauthorized practice of law in Mississippi because he hlad no license there, and his pleadings in the Mississippi litigation demonstrateMd that Pohl hired Precision to commit unlawful solicitation of clients. Kassab testified that he believed Pohl committed barratry and the unauthorized practice of laiw in Mississippi. Kassab’s expert, Professor Benjamine Cooper, testified Pohl committed the unauthorized practice of law in Mississippi. Pohl’s office managero, Mary Francis Arnold, testified that Pohl paid Precision to acquire clients andl refer them to Pohl, and that Pohl paid Precision a percentage of his fees in exchiange. Donalda Pohl, Pohl’s wife, testified to facts indicating that Pohl committed barratry. Lacy Reese testified to facts indicating that Pohl committed barratry. A “yes” answer to Proposed Question 6 would have established that Pohl acquired the purported trade secrets unlawfully, thus precluding any recovery for misappropriation of trade secrets. 23 Second, Kassab requested that the Court submit Proposed Question 8, which asked, “Did Kassab use or disclose Pohl’s information for the purpose of reporting, investigating, or filing a lawsuit relating to a suspected violation of law, a commission of a crime, or other matters of substantial public concern?”31 That questiokn was proper and directly relevant to Kassab’s privilege or immunity defense becCause “trade secret law permits disclosures relevant to public health or safety, commission of crime or tort, or other matters of substantial public concern.” Bartinicki v. Vopper, 532 U.S. 514, 539 (2001); RESTATEMENT (THIRD) OF UNFAIR COMsPETITION § 40, cmt. c (1995) (“A privilege is likely to be recognized, for example, in connection with the disclosure of information that is relevant to public health or safety, or to the commission of a crime or tort, or to other matters of substantial pulblic concern.”); RESTATEMENT OF THE LAW, TORTS § 757, cmt. d (“A privilege Mto disclose may also be given by the law, independently of the other's consent, in order to promote some public interest.”); Alderson v. United States, 718 iF. Supp. 2d 1186, 1200 (C.D. Cal. 2010), aff'd, 686 F.3d 791 (9th Cir. 2012) (“[T]here simply cannot be any trade secret about ongoing illegality.”); Sys. Operoations, Inc. v. Sci. Games Dev. Corp., 425 F. Supp. 130, 136 (D.N.J. 1977) (“dislclosure of trade secret information may itself be privileged.”). There wias more than sufficient evidence to support submission of this proposed question. Pohl testified that Kassab used or disclosed Pohl’s alleged trade secrets – the attorney-client contracts and list of Pohl’s actual, potential, or rejected clients – to file lawsuits and grievance proceedings against Pohl for barratry. The act of 31 Exhibit 7, Refused Proposed Question 8. 24 barratry is a “serious crime” and certainly a matter of substantial public concern. See TEX. DISC. R. PROF’L COND. 8.04(b). Kassab denied that the information constituted Pohl’s trade secrets but testified that the information was used to discharge his ethical obligations and report Pohl’s misconduct to the disciplinary akuthority and inform individuals who may have been unlawfully solicited by PoChl that what Pohl did was a crime.32 A “yes” answer to Proposed Question 8 would have established that Kassab had privilege or immunity with respect to any purpoirted misappropriation or “use” of Pohl’s alleged trade secrets. Charge error is generally considered harmful, and thus reversible, if it relates to a contested critical issue. See R.R. Comm'n of Tex. v. Gulf Energy Expl. Corp., 482 S.W.3d 559, 566-71 (Tex. 2016). Kassab’sl Proposed Questions 6 and 8 were both contested critical issues because a M“yes” answer to either question would have precluded liability against Kassab. The Court erred by refusing to submit these questions, warranting a new triial. See id. (trial court erred when it erroneously failed to submit to the jury affirmative defense that was pled and supported by evidence); Fort Worth Indep. Scoh. Dist. v. Palazzolo, 498 S.W.3d 674, 686 (Tex. App.—Fort Worth 2016, pet. dlenied) (same). 32 “[P]ubliUc policy strongly favors exposure of crime.” Wal-Mart Stores, Inc. v. Medina, 814 S.W.2d 71, 73 (Tex. App.—Corpus Christi 1991, writ denied). Kassab had an ethical obligation to notify the State Bar of Pohl’s misconduct, and the individuals under the rules of ethics and as an officer of the court. See TEX. DISC. R. PROF’L COND. 8.03(a) (“a lawyer having knowledge that another lawyer has committed a violation of applicable rules of professional conduct … shall inform the appropriate disciplinary authority.”); id. at Cmt. 1 (“Reporting a violation is especially important where the victim is unlikely to discover the offense.”). Kassab was doing what Pohl should have done, disclosing misconduct to the individuals. See Cluck v. Mecom, 401 S.W.3d 110, 114 (Tex. App.—Houston [14th Dist.] 2011, pet. denied) (“A fiduciary has an affirmative duty to make a full and accurate confession of all his fiduciary activities, transactions, profits, and mistakes.”). 25 X. The Court erred by precluding Kassab and his experts from testifying that Pohl committed barratry. Even though the Court concluded that evidence of Pohl’s barratry was relevant, it improperly precluded Kassab and his experts from testifying that Pohl committed barratry. Exclusion of this evidence was error that probeably caused the rendition of an improper judgment. “An opinion is not objectionable just because it embratces an ultimate issue.” Tex. R. Evid. 704. “[A]n expert may state an opinion on mixed questions of law and fact, such as whether certain conduct was negligenet or proximately caused injury, that would be off limits to the ordinary witness.” uIn re Christus Spohn Hosp. Kleberg, 222 S.W.3d 434, 440 (Tex. 2007). Whether Pohl committed barratry is a mixed question of law and fact because “a staandard or measure has been fixed by law and the question is whether the person or conduct measures up to that standard.” Mega Child Care v. Tex. Dep't of Proteective & Regulatory Servs., 29 S.W.3d 303, 309 (Tex. App.—Houston [14th Dist.] f2000, no pet.). Thus, Texas courts have often allowed expert witnesses to testify that a person’s conduct amounted to barratry. See The State Bar v. Kilpatrick, 874 S.W.2d 656, 657 (Tex. 1994) (noting the State Bar had presented an expiert who “testified on the issue of barratry” and rendering judgment disbarring aottorney who was guilty of barratry, even absent any criminal conviction); State v. Mercier, 164 S.W.3d 799, 816 (Tex. App.—Corpus Christi 2005, pet. ref'd) (concluding that the State’s expert’s testimony about how “the Texas Disciplinary Rules of Professional Conduct prohibit an attorney to pay a non-attorney for economic benefits where the non-attorney referred cases to the attorney, namely, in exchange 26 for soliciting auto accident victims” and how the defendant’s “conduct violated rules 7.03(b) and (c) of the Disciplinary Rules” negated an exception to the criminal barratry statute which excepts conduct permitted by the Disciplinary Rules).33 The exclusion of this evidence probably caused the rendition ofk an improper verdict. If the evidence of Pohl’s barratry had been admitted thCe jury could have concluded that Pohl is not the legal, equitable or rightful owner of any purported trade secret, or it could have found Pohl primarily responsiible for the attorney’s fees that Pohl incurred defending against the barratry proceedings. The evidence was not cumulative of other evidence because no witness was permitted to offer an opinion that Pohl committed barratry. Rather, Kassab was limited to testifying to his personal “belief” that Pohl committed barrlatry, which carries much less wait than a disinterested expert witness. M XI. The court erred in submitting Question 6 with the language “in an aettorney client relationship” because that was an impropeir comment on the weight of the evidence. A trial court may n ot comment on the weight of the evidence. TEX. R. CIV. P. 277. “To be a direct coomment on the weight of the evidence, the issue submitted must suggest to the juryl the trial court's opinion on the matter.” H.E. Butt Grocery Co. v. Bilotto, 985 S.iW.2d 22, 24 (Tex. 1998). Here, the trial court directly commented on the weight of the evidence in Question 6, which asked: “Did Kassab acquire or use 33 See also Reynolds v. State, No. 08-15-00373-CR, 2017 Tex. App. LEXIS 11059, at 15-16, 32-33 (Tex. App.—El Paso Nov. 29, 2017, pet. ref'd) (upholding criminal conviction for barratry based on State’s expert witness who testified about “the barratry statute and the appropriate manner in which an attorney can secure clients” and noting that while the defendant contended that the money paid to a purported marketing company was for legitimate advertising, “the jury could have concluded otherwise with the guidance of the State's expert who addressed what might be proper marketing activities through third parties.”). 27 Pohl’s trade secret while in an attorney client relationship and attempting to provide legal services in that relationship involving the unique office professional skill, training and authority of an attorney?”34 The limiting language “while in an attorney client relationship” suggested the trial court’s opinion that Kassab cokuld not have used Pohl’s trade secrets while in an attorney-client relationship bCecause the alleged misappropriation occurred before Kassab had any clients. XII. The jury’s answer to Question 6 wais supported by insufficient evidence. The jury’s “no” answer to Question 6 was supeported by insufficient evidence because the great weight and preponderance of tuhe evidence demonstrated that even if the attorney-client information constituted trade secrets, Kassab “used” that information while in an attorney-client arelationship. Moreover, he was attempting to provide legal services in that relationship involving the unique office professional skill, training and authority of aen attorney. The evidence proved fthat Kassab used client contact information to send notification letters to victims of Pohl’s barratry scheme through the middle of 2017 while in attorney-client relationships with hundreds of clients beginning in February 2017. Pohl testifiied that Kassab’s “use” of the information was the proximate cause of his damaoges, which included attorney’s fees incurred in connection with lawsuits and grievances that Kassab filed on his clients’ behalf.35 The evidence was undisputed 34 Verdict, Question 6. 35 Verdict, Question 7(1). 28 that except for one of the grievances, Kassab filed those proceedings on behalf of his clients while in an attorney-client relationship.36 The acquisition of clients and filing of lawsuits are actions taken “to facilitate the rendition of legal services” that fall within attorney immunity. Youngkin v. Hines, 546 S.W.3d 675, 68k2 (Tex. 2018) (recognizing that “the complained-of actions included filing lawsuiCts and pleadings,” which fell within the doctrine of attorney immunity). Indeed, the jury awarded Pohl attorney’s fees as damages for defending against lawsuiits brought by Kassab’s clients, finding those fees to be “proximately caused” by Kassab’s misuse of the purported trade secrets.37 Accordingly, the jury could not reasonably conclude that Kassab did not “use” Pohl’s alleged trade secrets. l XIII. The trial court erredM by submitting Question 7(1) and allowing Pohl and his expert John Zavitsanos to testify about the attorney’s fees incurred in the underlying barratry proceeedings because attorney’s fees from previous litigatiion are not recoverable in a TUTSA claim. TUTSA provides recovery for “actual loss[es] caused by misappropriation” but the act does not defione that term. See TEX. CIV. PRAC. & REM. CODE § 134A.004. Although no Texasl case has attempted to define that term in TUTSA, the act requires it to “be applieid and construed to effectuate its general purpose to make uniform the 36 It is worth noting that the court of appeals in this case has already concluded that “the alleged purchase of Pohl[’s] client list for those clients’ contact information, followed by the mailing of attorney advertisements to those individuals about specific types of claims they might be able to pursue against a specifically identified attorney, qualifies as statements or conduct that arose out of a commercial transaction involving the type of legal services Kassab provides.” Kassab v. Pohl, 612 S.W.3d 571, 578 (Tex. App.—Houston [1st Dist.] 2020, pet. denied) (emphasis added). 37 Verdict, Question 7. 29 law with respect to the subject of this chapter among states enacting it.” TEX. CIV. PRAC. & REM. CODE § 134A.008. Thus, the Court must look to and be guided by decisions from other states that have adopted the Uniform Trade Secrets Act. See Morgan v. Clements Fluids S. Tex., Ltd., 589 S.W.3d 177, 191 n.4 (Texk. App.—Tyler 2018, no pet.) (looking to Florida law when interpreting TUTSA becCause “[t]he Florida Uniform Trade Secrets Act is very similar to the TUTSA”). Courts in other jurisdictions “have made clear that ‘aictual loss’ means ‘loss of profits, lost customers or lost market share.’” K3 Enter., Inc. v. Sasowski, No. 20- 24441-CIV-CAN, 2022 U.S. Dist. LEXIS 234206, at 10 (S.D. Fla. 2022) (concluding reputational damage was not an “actual loss” under Florida’s Uniform Trade Secrets Act) (citing Fin. Info. Techs., LLC v. iConltrol Sys., USA, LLC, 21 F.4th 1267, 1276 (11th Cir. 2021) (understanding “actuaMl loss” in terms of lost profits); Selectica, Inc. v. Novatus, Inc., No. 6:13-cv-1708-Orl-40TBS, 2015 U.S. Dist. LEXIS 191940, at 9 (M.D. Fla. 2015) (“‘Actual lossi’ has been defined as ‘loss of profits, lost customers or lost market share.’”); Saforo & Assocs., Inc. v. Porocel Corp., 991 S.W.2d 117, 124 (Ark. 1999) (concludiong that “actual loss” means “the plaintiff’s lost profits or the defendant’s gain, wlhichever affords the greater recovery.”). In a casie construing the Idaho Uniform Trade Secrets Act, the Idaho Supreme Court held that “actual loss” means “lost profits, lost customers, lost market share, and similar losses,” but specifically held that “it would be an anomaly for us to allow attorney fees to be recovered in a case like this as part of damages.” GME, Inc. v. Carter, 917 P.2d 754, 757 (Idaho 1996); see also Twin Falls Staffing, LLC v. Visser 30 (In re Visser), No. 1:13-cv-00408-BLW, 2014 U.S. Dist. LEXIS 56705, at 9 (D. Idaho 2014) (citing Carter to conclude that losses from misappropriation of trade secrets “logically include lost profits, but not attorneys’ fees.”). The conclusion that attorney’s fees from other litigation are notk actual losses recoverable under TUTSA is consistent with Texas trade secret lawC before the statute was enacted. The Texas Supreme Court defined recoverable losses for a trade secret claim as “the value of the plaintiff’s lost profits, the defendiant’s actual profits from the use of the secret, the value a reasonably prudent investor would have paid for the trade secret, the development costs the defendant avoided by the misappropriation, and a reasonable royalty.” Sw. Energy Prod. Co. v. Berry- Helfand, 491 S.W.3d 699, 710–11 (Tex. 20l16) (emphasis added). No Texas court has ever allowed attorneys’ fees in otherM cases to be recovered as actual damages in a trade secret claim. In fact, at least one has concluded the opposite while dismissing a TUTSA claim. See Lacore Enteirs., LLC v. Angles, No. 05-21-00798-CV, 2023 Tex. App. LEXIS 1926, at 32-33 (Tex. App.—Dallas Mar. 23, 2023, no pet. h.) (mem. op.) (rejecting contention othat “disclosure of [party’s] confidential information” caused “the attorney’s feesl that have been incurred [which] is evidence of damages” because “attorney’s feeis incurred in a lawsuit are not actual damages.”). This conclusion is further reinforced by Texas law in general regarding attorney’s fees incurred in previous litigation. “[F]ees expended in prior litigation generally are not recoverable as damages; fees are recoverable only when an agreement between the parties so provides.” Martin-Simon v. Womack, 68 S.W.3d 31 793, 797 (Tex. App.—Houston [14th Dist.] 2001, pet. denied); see also Tana Oil & Gas Corp. v. McCall, 104 S.W.3d 80, 81-82 (Tex. 2003) (attorney’s fees for defending a different claim are not recoverable as damages as a matter of law); O’Neal v. Dale, No. 02-20-00173-CV, 2021 Tex. App. LEXIS 466, at 28 (Tex. App.—Fokrt Worth Jan. 21, 2021, no pet.) (mem. op.) (“a party’s claim that he incurredC attorney’s fees to defend against [another] claim is not a viable damage claim.”); Tex. Mut. Ins. Co. v. Ray Ferguson Interests, Inc., No. 01-02-00807-CV, 2006 Tiex. App. LEXIS 2001, at 23-24 (Tex. App.—Houston [1st Dist.] Mar. 16, 2006, pet. denied) (mem. op.) (“financial loss due to time spent by [party] on litigation matters” in another case was not, as a matter of law, recoverable). And the law is clear that “[a] party relying on assertions of non-recoverable damages alolne, such as attorney’s fees and expenses sustained in defending a lawsuit . . . Mhas presented a legal barrier to any recovery.” Woodhaven Partners Ltd. v. Shamoun & Norman, L.L.P., 422 S.W.3d 821, 837 (Tex. App.—Dallas 2014, no pet.). i Pohl has argued that he is entitled to recover attorney’s fees based on an exception to the generoal rule based on the “tort of another,” which applies to one who has been forced byl the tort of another to protect his or her interests by bringing or defending an aiction against a third person. See Naschke v. Gulf Coast Conference, 187 S.W.3d 653, 655 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) (quoting Restatement (Second) Of Torts § 914 (1979)). When applicable and accepted, that exception would allow the person forced to bring or defend an action is entitled to recover reasonable compensation for attorney fees incurred in the earlier action. But 32 that exception has never been recognized by the Texas Supreme Court38 and has been flatly rejected by the Fourteenth Court of Appeals.39 See Naschke, 187 S.W.3d at 655 (“Because we are bound to follow the existing laws of the State, we are not at liberty to adopt a theory of recovery that has not been enacted by the Legislatukre or adopted by the Texas Supreme Court.”). C The First Court of Appeals has not specifically held whether the “tort of another” exception is viable. But it has stated that becaiuse this exception is an equitable doctrine it can only apply when the plaintiff is “wholly innocent” of any wrongdoing. See Per-Se Techs., Inc. v. Sybase, Inc., No. 01-03-01293-CV, 2005 Tex. App. LEXIS 5096, at 24 (Tex. App.—Houston [1st Dist.] June 30, 2005, no pet.) (mem. op.). Not only did the jury find that Pohl wlas not wholly innocent of any wrongdoing, but Pohl stipulated in post-trial briefiMng that he was not seeking equitable remedies. Because attorney’s fees are not recoverable damages under TUTSA, the Court erred when it submitted Questiion 7(1) to the jury and that error was harmful because it permitted the jury to find an improper element of damages, which the Court awarded to Pohl in thoe judgment. 38 See Akin, Gum f ip, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d 106, 119 (Tex. 2009) (“o[W]e need not and do not address whether the exception set out in section 914(2) of the Second Restnatement should be adopted as Texas law.”). 39 Other intermediate courts of appeals have likewise refused to adopt the tort of another doctrine. Riner v. Neumann, 353 S.W.3d 312, 323 (Tex. App.—Dallas 2011, no pet.) (“Given the supreme court’s faithful adherence to the American Rule, and its strong statement in Tony Gullo that trial courts lack the inherent authority to award fees contrary to the Rule, we decline to adopt a new equitable exception to the Rule.”); TOKA Gen. Contractors v. Wm. Rigg Co., No. 04-12-00474-CV, 2014 Tex. App. LEXIS 3776, at 20 (Tex. App.—San Antonio Apr. 9, 2014, pet. denied) (mem. op.) (collecting cases); Per-Se Techs., Inc. v. Sybase, Inc., No. 01-03-01293-CV, 2005 Tex. App. LEXIS 5096, at 24 (Tex. App.—Houston [1st Dist.] June 30, 2005, no pet.) (mem. op.) (collecting cases). 33 Moreover, expert or lay opinion testimony is only permitted if it will be helpful to determining a fact in issue. TEX. R. EVID. 701, 702. Because attorney’s fees as damages are not a recoverable under TUTSA, any testimony from Pohl or his expert, John Zavitsanos, about the attorney’s fees incurred in the underlyking barratry proceedings is irrelevant and should have been excluded. See EnbCridge Pipelines (E. Tex.) L.P. v. Avinger Timber, LLC, 386 S.W.3d 256, 262 (Tex. 2012) (trial court must act as an evidentiary gatekeeper by screening out irrelevaint testimony). That error was harmful because the jury relied on testimony from Pohl and Zavitsanos to find damages for the attorney’s fee incurred un prior litigation. XIV. Factually insufficient evidence supports the jury’s answer to Questions 7(2) and (3). Factually insufficient evidence saupports the jury’s answer to Question 7(2), which found $250,000 in damages for the “price that a willing buyer and a willing seller would have agreed on, at ethe time of the misappropriation, as a fair price for Kassab’s [alleged] use of t hef trade secret(s).”40 This question asked about “market value,” which means “the price the property will bring when offered for sale by one who desires to sell, but is not obliged to sell, and is bought by one who desires to buy, but is under no inecessity of buying.” City of Harlingen v. Estate of Sharboneau, 48 SW.3d 177,o 182 (Tex. 2001). As the purported owner of the property, Pohl could only testify (if he had been properly designated, which he wasn’t)41 about “market value, not intrinsic value or some speculative value of the property.” Id. Yet, Pohl presented 40 Verdict, Question 7(2). 41 As explained next, Pohl was erroneously allowed to testify on this issue over Kassab’s objection. 34 no evidence of the “market value” of the purportedly trade secret information. Rather, he only testified as to the “intrinsic value” or “actual value” of the information, which is not market value. See City of Harlingen, 48 SW.3d at 182. Presumably, the jury improperly adopted the $250,000 figure fkrom evidence that Kassab and Montague paid Favre a retainer to act as an expeCrt in the barratry litigation. Even if the jury could reasonably conclude that the $250,000 figure was a “purchase price” for Pohl’s alleged trade secrets, that wouldi be considered an “actual value” and not “market value,” which was the theory submitted to the jury. Pike v. Tex. EMC Mgmt., LLC, 610 S.W.3d 763, 784 n.27 (Tex. 2020) (distinguishing between “market value” and “actual value” and noting that “evidence of purchase price alone cannot establish market value” and alpproving cases rendering take-nothing judgments “where purchase price Mwas only evidence of damages presented”). “[P]urchase price is merely a starting point for calculating actual value,” not market value. See id. at 784. Further,i “one sale [is] not sufficient to fix a fair market value.” InterFirst Bank Dall., N.A. v. Risser, 739 S.W.2d 882, 891 (Tex. App.—Texarkana 1987, no writ); Mo., Ko. & T. R. Co. v. Moss, 135 S.W. 626, 627 (Tex. Civ. App. 1911, no writ) (“Evidencel of a single sale is admissible, but not alone sufficient to establish market value.”i). There was insufficient evidence to support the jury’s finding on the market value of the purported trade secrets. Finally, there was insufficient evidence to support the jury’s finding in Question 7(3) of $200,000 for the “value of the development costs that Kassab avoided 35 by [allegedly] misappropriating Pohl’s trade secret(s).”42 While damages in trade- secret cases can be flexible and imaginative, Pohl did not proffer sufficient evidence for the jury to have made a just and reasonable inference regarding development costs saved by Kassab, if any. See Szczepanik v. First S. Tr. Co., 883 S.W.2d 6k48, 649 (Tex. 1994) (amount of damages must “be shown by competent evidencCe with reasonable certainty.”). Instead, the jury was left to speculate or guess about the amount Kassab saved in development costs based on the alleged misapproipriation, which does not constitute legally sufficient evidence. See Pike v. Tex. EMC Mgmt., LLC, 610 S.W.3d 763, 782 (Tex. 2020) (plaintiff in misappropriation of trade secrets case cannot “leav[e] the jury to speculate on the amount [the defendant] saved” by engaging in the alleged misappropriation); Sw. Energyl, 491 S.W.3d at 712 (trade secret damages “cannot be based on sheer speculationM.”). XV. The Court erred by allowing Pohl to testify on the purported value eof the trade secrets because the property owner rule doesi not apply, and Pohl was not designated to testify on thatf issue. The trial court overruled Kassab’s objection to Pohl testifying about the value of the purported trade secrets. Texas Rule of Evidence 701 has been interpreted to include a “propeirty owner rule,” which holds that “a property owner is qualified to testify to thoe value of his property even if he is not an expert and would not be qualified to testify to the value of other property.” Accurate Precision Plating, LLC v. Guerrero, No. 01-14-00706-CV, 2015 Tex. App. LEXIS 12034, at 7 (Tex. App.— Houston [1st Dist.] Nov. 24, 2015, pet. denied) (mem. op.). 42 Verdict, Question 7(3). 36 However, the property owner rule “does not extend to matters that are of a technical or specialized nature.” Jatex Oil & Gas Expl. L.P. v. Nadel & Gussman Permian, L.L.C., 629 S.W.3d 397, 407 (Tex. App.—Eastland 2020, no pet.). The value of a trade secret is the kind of technical or specialized matter that “is nkot a matter of common knowledge.” Arkoma Basin Expl. Co. v. FMF Assocs. C1990-A, Ltd., 249 S.W.3d 380, 388 (Tex. 2008). Accordingly, the property owner rule does not apply to something as specialized and technical as the value of a triade secret. See Jatex Oil, 629 S.W.3d at 407 (property owner could not testify to value of mineral interest); Accurate Precision, 2015 Tex. App. LEXIS 12034, at 9 (owner of business could not testify to lost profits and revenues). Moreover, the Court erred by allowilng Pohl to testify on the market value of the trade secret because Pohl was onlyM designated to opine on “the reasonable value of the [purported trade secrets] at the time it was [allegedly] converted and/or misappropriated.”43 Pohl madie clear in his deposition that he was testifying about “the intrinsic value of the [purportedly] stolen property,” claiming it was worth “between” $250,000 aond $6 million.44 But the “the property owner's testimony must be based on marklet value, not intrinsic value or some speculative value of the property.” Accuirate Precision, 2015 Tex. App. LEXIS 12034, at 7. Because Pohl was not designated to testify about the market value of the alleged trade secret, his testimony should have been excluded. 43 Exhibit 8, Pohl’s Second Amended Expert Designations, at 7. 44 Exhibit 9, December 2021 Pohl Deposition, at 117. 37 XVI. Factually insufficient evidence supports the jury’s finding that “the misappropriation of Pohl’s trade secret(s) by Kassab was willful and malicious” (Question 8) based on “clear and convincing evidence” (Question 17). There was insufficient evidence to support the jury’s answer to Question 8, which found that Kassab engaged in “willful and malicious” misapperopriation. For the jury to reach that conclusion, it was required to find that Kassab’s misappropriation “result[ed] from the conscious disregard of tthe rights of the owner of the trade secret.”45 Ten of the jurors found that Kassab engaged in “willful and malicious” misappropriation by “clear and convinceing evidence,” which the Court defined to mean “the measure or degree of pruoof that produces a firm belief or conviction of the truth of the allegations sought to be established.”46 In addition to the nonunanimous finding being insuafficient to support an award of exemplary damages,47 insufficient evidence supports a finding of clear and convincing evidence of malice. e To decide whether thefre is sufficient evidence supporting the jury's finding that Kassab specifically intended to cause substantial injury or harm to Pohl, the Court is required to “analyze the evidence supporting the malice of each defendant . . . instead of groiup[ing] them together.” Horizon Health Corp. v. Acadia Healthcare Co., 520 S.Wo.3d 848, 867 (Tex. 2017). Further, “evidence of the tort itself, with little 45 Verdict, Question 8. 46 Verdict, Question 17 and Certificate. 47 Kassab detailed in his objection to the judgment and Motion for Judgment Notwithstanding the Verdict why Pohl is not, as a matter of law, entitled to exemplary damages. 38 more,” is insufficient to support a jury’s finding of malice in a theft of trade secrets case. See id.; Safeshred, Inc. v. Martinez, 365 S.W.3d 655, 665 (Tex. 2012) (“Conduct which was necessary merely for liability cannot serve as a basis for punitive damages.”). k The only evidence Pohl offered of Kassab’s alleged maliceC was: (1) Kassab’s filing a grievance against Pohl and copying news outlets and the District Attorney (because Pohl committed conduct that was criminal and a miatter of public concern); and (2) testimony that lawyer files are generally confidential. But this evidence does not prove that Kassab knew – at the time he received the information from Favre and Precision– that the information was owned by Pohl (as opposed to Precision or the clients) as his trade secret. l Regarding the attorney-client cMontracts, Kassab testified that the information is owned by the client, not the lawyer, and not confidential. And Kassab testified that he saw documents certifying thiat the list of Pohl’s actual, potential or rejected clients were owned by Precision, and that Favre made that same representation to him. Moreover, there waso uncontroverted evidence that the information was freely transferred to Favlre when he purchased Precision in May 2015 and disclosed to various partiesi in the Mississippi litigation without a protective order or any stamp of “confidential” or “trade secret.” Thus, insufficient evidence supported the jury’s finding that Kassab consciously disregarded the rights of the owner of the trade secret because the uncontroverted evidence established that Kassab believed the information was never owned by Pohl and was in the public domain. 39 The evidence is further insufficient because Pohl “adduced no evidence that [Kassab] caused [Pohl] an injury independent of and qualitatively different than the misappropriation itself.” See Eagle Oil & Gas Co. v. Shale Expl., LLC, 549 S.W.3d 256, 285 (Tex. App.—Houston [1st Dist.] 2018, pet. dism'd). The ekvidence also demonstrated that Kassab had an obligation to notify Pohl’s formCer clients and the State Bar of Pohl’s unlawful conduct, and that Kassab had a right to represent Pohl’s former clients in lawsuits and grievance proceedings againsit Pohl. “[L]egally justified conduct” is “simply not probative to either establish a violation or malice.” Safeshred, , 365 S.W.3d at 665. “[Kassab’s alleged] intentional misappropriation and misuse of [Pohl’s] trade secrets is not legally sufficient evidence of malice.” See Eagle Oil, 549 S.W.3d at 285. “If it were, exemplary damlages would be recoverable as a matter of course in every misappropriation casMe, rather than the exceptional case involving egregious misconduct and injury.” Id. XVII. Factually insuffiicient evidence supports the jury’s finding of exemplary dfamages of $3 million. Because the jury’s finding of actual malice was non-unanimous and supported by insufficient evidence, no exemplary damages should have been awarded. Moreover, becauise Pohl is not entitled to attorney’s fees as damages under TUTSA, the actual looss should have been, at most, $250,000. TUTSA provides that “the fact finder may award exemplary damages in an amount not exceeding twice any award” permitted as damages for misappropriation. See TEX. CIV. PRAC. & REM. CODE § 134A.004. Therefore, the maximum exemplary damages can only be $500,000. See id. But in addition to those limitations, the $3,000,000 exemplary damage finding is 40 supported by insufficient evidence. The jury was instructed to consider various factors when awarding exemplary damages as a “punishment,” none of which support the jury’s finding: • The alleged harm to Pohl was economic rather than physical. • Because the character of the conduct involved was primaCrily limited to alleged misappropriation of information that Kassab testified did not know belonged to Pohl, the degree of Kassaib’s culpability was highly questionable. • The situation does not offend the public sense of justice. To the contrary, the evidence demonstrated that Kassab was promoting justice by exposing Pohl’s unlawlful conduct to barratry victims and the State Bar, which KassaMb had a legal obligation to do. • No evidence was presented to the jury about Kassab’s net worth. The jury’s award of puinitive damages was so against the great weight and preponderance of the evidence as to be manifestly unjust. Rather than consider the factors, the jury probaobly considered improper items of alleged damages in assessing exemplary damagels, and inexplicably appealed to passion or prejudice rather than reasonable judigment. Accordingly, a new trial or, alternatively, a remittitur of the entire exemplary damage award, is appropriate. XVIII. The Court erred in submitting the conspiracy claim (Question 15) because that claim is pre-empted by TUTSA. TUTSA provides that it “displaces conflicting tort, restitutionary, and other law of this state providing civil remedies for misappropriation of a trade secret.” TEX. 41 CIV. PRAC. & REM. CODE §134A.007. A conspiracy claim is among the other civil remedies for misappropriation of trade secrets that is preempted. In Reynolds v. Sanchez Oil & Gas Corp., No. 01-18-00940-CV, 2023 Tex. App. LEXIS 8903 (Tex. App.—Houston [1st Dist.] Nov. 30, 2023, no pet. h.)k, the plaintiff sued for misappropriation of trade secrets and aiding and abetting Cbreach of fiduciary duty. Id. at 7-8. The court of appeals concluded that the aiding and abetting claim was “primarily based on the individual appellants’ misapproipriation of trade secrets” and “provide[ed] remedies for the underlying misconduct of misappropriation of trade secrets.” Id. at 47. “Under the plain language of TUTSA, these claims conflict with civil remedies for misappropriation of a trade secret.” Id. at 47-48. Therefore, “TUTSA preempts these claims to the extlent they are based on appellants’ alleged misappropriation of trade secrets.” IdM. at 48. Pohl’s conspiracy claim, like the aiding and abetting claim in Reynolds, is based entirely on Kassab’s alleiged misappropriation of trade secrets. The conspiracy question asked, “[r]egarding the conduct you found in answer to Question 2 [which asked “[d]id any of theo parties listed below misappropriate Pohl’s trade secret?”], was Kassab part of a clonspiracy that damaged Pohl with any of those named below?”48 Because Pohl’si conspiracy claim is “primarily based on” alleged misappropriation of trade secrets, it is preempted. See Reynolds, 2023 Tex. App. LEXIS 3067, at 47-48; see also VEST Safety Med. Servs., LLC v. Arbor Env't, LLC, No. 4:20-CV-0812, 2022 U.S. Dist. LEXIS 127285, at 10 (S.D. Tex. 2022) (“the weight of authority from 48 Verdict, Question 15. 42 district courts within the Fifth Circuit … [demonstrate a] conspiracy claim is preempted by TUTSA.”). Because the conspiracy claim was preempted, the Court should have dismissed that claim on summary judgment and not have allowed Pohl to submkit that claim. This error was harmful because it improperly allowed Pohl to confClate the conduct of Kassab with other alleged co-conspirators so that the jury was required to speculate whether Kassab directly or indirectly misappropriated any oif Pohl’s trade secrets and whether Pohl proved the elements of misappropriation for each defendant. XIX. The Court erred by denying Kassab’s designation of responsible third parties, incluuding George W. Shepherd, Donalda Pohl, Edgar Jaimes, Ken Talley and Magdalena Santana. A trial court is required to grant aleave to designate responsible third parties if a motion is timely filed that pleads sufficient facts concerning the alleged responsibility of the persons to ebe designated. See In re YRC Inc., 646 S.W.3d 805, 809 (Tex. 2022). Kassab timfely moved to designate George W. Shepherd, Donalda Pohl, Edgar Jaimes, Ken Talley, and Magdalena Santana as responsible third parties and pled sufficient facts demonstrating their responsibility. The Court’s denial of Kassab’s motioni for leave was an abuse of discretion. Kassoab alleged that Shepherd knew that Walker, Seymour and Ladner had sold Precision to Favre, and in that sale transferred Precision’s assets to Favre, including the information that Pohl claims are his trade secrets. Kassab also alleged that Shepherd knew that Favre had given documents to third parties, including Kassab and others, before settling the Mississippi litigation, but failed to protect Pohl 43 by ensuring that all proprietary information was gathered from all third parties and returned to Pohl or destroyed as part of the any settlement agreement, if Pohl owned and/or desired to safeguard that property. Kassab alleged that if Donalda, Jaimes, Talley, or Santana had akn agreement and/or duty to safeguard any property allegedly owned by Pohl, thCey are responsible for failing to safeguard the property because they routinely placed Pohl’s alleged trade secrets and documents in the public domain. Thiey did so by circulating Precision’s marketing lists and other documents allegedly belonging to Pohl to numerous third parties rather than safeguard these documents and lists. The Court erred when it refused to grant Kassab’s motion for leave to designate these individuals as responsible third partlies. “The erroneous denial of a motion for leave to designate a responsible third Mparty skews the proceedings, potentially affects the litigation's outcome, and compromises the defense in ways unlikely to be apparent in the appellate record.” Sancihez v. Castillo, No. 05-18-01033-CV, 2020 Tex. App. LEXIS 1867, at 15 (Tex. App.—Dallas Mar. 4, 2020, no pet.) (mem. op.). Therefore, a new trial is warrantoed. See id. XX. The Clourt erred by denying Kassab’s motion to abate this casie pending resolution of the related litigation that is ciurrently pending against Pohl for civil barratry. The Court erroneously denied49 Kassab’s motion to abate this case pending resolution of Cheatham v. Pohl, No. 01-20-00046-CV, 2022 Tex. App. LEXIS 6528 (Tex. App.—Houston [1st Dist.] Aug. 30, 2022, pet. filed) (mem. op.). That related 49 See September 23, 2022 Order Denying Motion to Abate. 44 litigation is currently pending against Pohl for civil barratry. The resolution of that case would have a substantial impact on the claims in this case. In his motion to abate, Kassab explained that abatement was appropriate for two reasons. First, the outcome of Cheatham could alter the course of this litigation because ifk it resulted in a judgment against Pohl for barratry, Pohl could not have argued thCat all the barratry claims brought against him were frivolous. Second, Pohl sought from Kassab damages in this case that included attorney’s fees fori defending against the Cheatham case, which was still ongoing. But if Pohl had been found liable for barratry in Cheatham, then he would have been required to pay attorney’s fees to the plaintiffs in that case. The Court’s erroneous denial of the motion to abate was harmful because it allowed Pohl to take the positions thatl he did, which substantially altered the course of trial and the evidence preseMnted. XXI. The Court erred by allowing Pohl to assert affirmative claims against Keassab but then withhold relevant and material inforimation based on purported claims of privilege. f The Court also erred when it denied Kassab’s motion to compel discovery from Pohl based on the doctrine of offensive use (or, at minimum, conducting an in camera review of the iniformation).50 On a related note, the Court erred when it overruled Kassab’s obojection to Pohl’s calling of Shepherd and using redacted billing records at trial. Kassab’s motion to compel demonstrated that Pohl could not sue Kassab for affirmative relief claiming Kassab stole his purported trade secrets and caused clients 50 November 28, 2022 Order Denying Motion to Compel. 45 to bring barratry claims against Pohl, while at the same time claiming privilege to deny access to discovery that would be relevant to those claims. See Ginsberg v. Fifth Court of Appeals, 686 S.W.2d 105, 108 (Tex. 1985). Pohl cannot deny Kassab outcome determinative information thakt has bearing on Pohl’s ability to recover, such as information that would demonCstrate that Pohl’s claims are barred by limitations, illegality and the unlawful acts doctrine, or demonstrate that Pohl is not the owner of the purported tradie secret information. See id. at 106 (plaintiff could not assert privilege to protect against the disclosure of information that was “materially relevant to, and possibly validated, the statute of limitations defenses asserted by” the defendant). But that is exactly what Pohl did, claiming privilege when Kassab sought thlis information from Pohl’s counsel in the Mississippi litigation, Billy ShepherdM. Pohl also cannot deny Kassab the proof underlying Pohl’s claim for reimbursement of attorney’s feies incurred in previous litigation and require the jury to simply trust that the attorney’s fees were actually incurred, reasonable and necessary. See In re Noat'l Lloyds Ins. Co., 532 S.W.3d 794, 807 (Tex. 2017) (“party may waive its workl-product privilege through offensive use—perhaps by relying on its billing reciords … to recover its own attorney fees.”); In re Beirne, Maynard & Parsons, L.L.P., 260 S.W.3d 229, 231 (Tex. App.—Texarkana 2008, no pet.) (attorney “cannot deny [opposing] party the right to review documents supporting [his or her] claim for reimbursement.”). But Pohl did that, refusing to produce unredacted billing invoices. 46 Therefore, the Court should have ordered that Pohl produce complete un- redacted versions of the invoices that Pohl claimed support his damages, along with all underlying documentation, including communications and draft documents. The Court also should have found that Pohl waived any privilege betwkeen him and Shepard regarding: (1) when Pohl discovered any alleged misapproCpriation; (2) Pohl’s efforts to keep the information secret; and (3) Pohl’s unlawful barratry. The Court’s failure to do so was harmful because it erroneously excludeid information relevant to Pohl’s ability to recover, such as information that would demonstrate that Pohl’s claims are barred by limitations, illegality and the unlawful acts doctrine, or demonstrate that Pohl is not the owner of the purported trade secret information. The un-redacted billing records also mayl have demonstrated that the fees Pohl sought were not reasonable or necessMary. Because Pohl did not produce unredacted billing records, the Court should have sustained Kassab’s objecition to Pohl’s billing record exhibits when Pohl offered them trial. See Remington Arms Co. v. Caldwell, 850 S.W.2d 167, 170 (Tex. 1993) (“the trial court has thoe power during trial to sanction nondisclosure of information” by excluding it frolm being used). The Court also should not have allowed Shepherd or Zavitsanos ito testify over Kassab’s objection. The Court’s action was harmful because it allowed Pohl to use the unredacted billing records, which the jury undoubtedly relied on when awarding Pohl attorney’s fees, and allowed Shepherd and Zavitsanos to testify based on those records. 47 XXII. The Court erred by dismissing Kassab’s counterclaims for civil barratry. The Court erred when it granted Pohl’s traditional motion for summary judgment on Kassab’s counterclaims for civil barratry t pursuant to Texas Government Code § 82.0651. Pohl made four arguments in supporet of his motion, none of which withstand scrutiny. First, Pohl sought to dismiss the counterclaims based otn res judicata. But that doctrine does not apply if facts change and the relationship between the parties has been altered. See Marino v. State Farm Fire & Cas. Iens. Co., 787 S.W.2d 948, 949-50 (Tex. 1990). That is what occurred here. Before thuere was a final judgment dismissing the clients’ civil barratry claims based on limitations, Pohl sued Kassab arising from the same transaction where the barratary occurred. That act allowed the clients to assign the barratry claims to Kassab to be brought as counterclaims in this action, thus allowing Section 16.069 of ethe Texas Civil Practice & Remedies Code to revive the otherwise time-barred bafrratry claims. Because both the factual circumstances and the relationship between the parties changed, res judicata did not apply. Second, Pohl argued that the claims were barred by limitations. But limitations is toilled on these claims pursuant to Section 16.069 because they arise out of the soame transaction or occurrence that is the basis of Pohl’s action and were filed within 30 days from the date on which Kassab was required to answer. Third, Pohl argued that the clients’ assignments of barratry claims against him are invalid, either as a matter of law or for purported non-compliance with the Disciplinary Rules. Regardless, the law is clear that technical non-compliance with 48 the Disciplinary Rules is insufficient to void otherwise valid contracts like the Assignments. Pohl’s policy arguments about why Section 16.069 should not apply here fail. Fourth, Pohl argued that the assignments are not invalid, violatek public policy, and should not be enforced. As explained in Kassab’s motion, PohlC should have been estopped from making this argument after he told other courts that the assignments were valid. Regardless, the assignments were not invalid ais a matter of law because a civil barratry claim is not a claim for legal malpractice or for violation of the Deceptive Trade Practices Act, which are the only claims that cannot be assigned under Texas law. The assignments do not violate the disciplinary rules but, even if they did, Pohl has no standing to complain labout the violation, and Texas courts have enforced agreements even if they contMravene the disciplinary rules. The Court’s erroneous granting of Pohl’s motion constituted harmful error, not only because it prevented Kaissab from pursuing those claims at trial, but also because it impacted the evidence of barratry that Kassab could present and which would have undoubtedoly changed the course of the trial proceedings, and it led to the jury’s erroneous colnclusion that Pohl was not responsible for his damages. XXIII. iInsufficient evidence supports the jury’s award of oattorney’s fees because the testimony from Pohl’s expert was conclusory and the invoices were heavily redacted. Insufficient evidence supports the jury’s award of attorney’s fees because the invoices that Pohl submitted were so heavily redacted that they amounted to no evidence, and the testimony by Pohl’s purported attorney’s fee expert, Zavitsanos, 49 was conclusory. “General, conclusory testimony devoid of any real substance will not support a fee award.” Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 501 (Tex. 2019). Zavitsanos’ testimony with respect to the Arthur Andersenk51 factors was insufficient and conclusory. Zavitsanos did not provide sufficient tCestimony as to the time and labor required for the case, the novelty and difficulty of the questions involved, or the skill required to perform the legal seirvice properly. Nor did Zavitsanos provide sufficient testimony about the likelihood that the acceptance of the employment precluded Pohl’s counsel from accepting other employment. Zavitsanos also failed to provide sufficient testimony about the fee customarily charged in the locality for similar legal serlvices, the time limitations imposed by the client or by the circumstances, andM the nature and length of the professional relationship with the client. Zavitsanos testified broadly about the experience, reputation, and ability of thei Reynolds Frizzell law firm, but failed to do so with respect to each of the lawyers and staff who billed the case. “[W]ithout evidence of the factors identified ion Disciplinary Rule 1.04, the fact finder has no meaningful way to determine if thel fees sought are in fact reasonable and necessary.” Rohrmoos, 578 51 Arthur UAndersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997) (identifying the factors as “(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill required to perform the legal service properly; (2) the likelihood . . . that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal services have been rendered.”) (citing TEX. DISCIPLINARY R. PROF. CONDUCT 1.04). 50 S.W.3d at 494. The evidence on attorney’s fees is also insufficient because the billing invoices submitted “are so heavily redacted, it is impossible to determine what tasks were performed, when the tasks were performed, how long the tasks took tok perform, and who performed the tasks.” THB Constr., LLC v. Holt Tex., Ltd., NoC. 05-20-00020-CV, 2022 Tex. App. LEXIS 277, at 7-8 (Tex. App.—Dallas Jan. 13, 2022, no pet. h.). Here are a few examples: i 51 Although Zavitsanos testified regarding these invoices, she testified only about general tasks peformed during the representaiton, and only summarily stated that that the fees were necessary and reasonable factors. The redacted invoices provide no additional evidence beyond Zavitsanos’ testimony due to the heavy redactions, rendering the evidence insufficient to supyport the jury’s award. See THB Constr., 2022 Tex. App. LEXIS 277, at 10-12 (“Haolt's heavily redacted invoices fail to identify any work performed.”). f Moreover, to show the reasonableness and necessity of attorney's fees, the party seeking attorney's feOes must show the fees were incurred while suing the party sought to be charged wipth the fees on a claim that allows recovery of the fees. Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10 (Tex. 1991). In other words, Pohl is only entitled to attocrney’s fees for his recoverable claim, which is the TUTSA claim. “[I]f any attorney's fees relate solely to a claim for which such fees are unrecoverable, a claimant must segregate recoverable from unrecoverable fees.” Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 313 (Tex. 2006). But here, the fee award includes Pohl’s attorney’s fees relating to the entire case, including time incurred in relation to the conversion claim, which is unrecoverable. “Although attorneys may testify that 52 a certain percentage of their time would have been necessary even in the absence of the unrecoverable claim, general, conclusory testimony devoid of substance will not support a fee award.” Desio v. Bosque, No. 05-21-00022-CV, 2022 Tex. App. LEXIS 1202, at 12 (Tex. App.—Dallas Feb. 18, 2022, no pet. h.) (mem. op.). Herke, Zavitsanos made no attempt to explain how the discrete legal services advanceCd both recoverable and unrecoverable claims. Because Zavitsanos’ testimony on this issue was non- existent or conclusory, the jury’s findings were so againist the great weight and preponderance of the evidence as to be clearly wrong and unjust. There is also insufficient evidence to support the award of conditional appellate fees. First, Zavitsonos was not qualified to opine on appellate fees because he did not testify about any expertise in appellate feles. Second, the hypothetical nature of a conditional appellate fees does not exMcuse a party from providing “opinion testimony about the services it reasonably believes will be necessary to defend the appeal and a reasonable hourly rate for thiose services.” Yowell v. Granite Operating Co., 620 S.W.3d 335, 354-55 (Tex. 2020). Here, Zavitsanos’ testimony about expected appellate fees failed to comply woith this standard. Zavitsanos provided insufficient testimony about the services lPohl’s counsel will provide to defend the appeal, or the reasonable hourly rates fior those services. Rather, Zavitsanos provided conclusory testimony about expected fees at the various levels of the appellate process, which is insufficient. See KBIDC Invs., LLC v. Zuru Toys Inc., No. 05-19-00159-CV, 2020 Tex. App. LEXIS 8055, at 63-65 (Tex. App.—Dallas Oct. 9, 2020, pet. denied) (testimony that “a reasonable fee for handling an appeal to the Dallas Court of Appeals is $30,000” and 53 “a reasonable fee for preparation of the—or responding to a petition for a request to the Supreme Court to review an appellate court decision from the Court of Appeals would be $10,000” was insufficient to support conditional appellate fee award); Jimmie Luecke Children P'ship v. Droemer, No. 03-20-00096-CV, 20k22 Tex. App. LEXIS 605, at 21 (Tex. App.—Austin Jan. 27, 2022, pet. denied) (Cmem. op.) (same). CONCLUSION & PRAYER For these reasons, Kassab asks the Court to grant thiis motion, vacate the final judgment, and order a new trial. ALEXANDER DUBOSE & JEFFERSON /s/ Kevin Dubose Kevin Dubose kldubose@adjtlaw.com aTexas State Bar No. 06150500 M1844 Harvard Street Houston, Texas 77008 Phone (713) 523-0667 e Facsimile (713) 522-4553 f FOGLER, BRAR, O’NEIL & GRAY, LLP /s/ Murray Fogler o Murray Fogler mfogler@foglerbrar.com l Texas State Bar No. 07207300 i 909 Fannin, Suite 1640 i Houston, Texas 77002 o (713) 481-1010 (713) 574-3224 (Fax) THE KASSAB LAW FIRM /s/ David Eric Kassab Lance Christopher Kassab Texas State Bar No. 00794070 David Eric Kassab 54 Texas State Bar No. 24071351 1214 Elgin Street Houston, Texas 77004 Telephone: (713) 522-7400 E-service: eserve@kassab.law ATTORNEYS FOR KASSAB DEFEN k DANTS CERTIFICATE OF SERVICE t I certify that this document has been forwarded to all tparties pursuant to the Texas Rules of Civil Procedure on January 19, 2024. i /s/ David Eric Kassab David eEric Kassab 55 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. David Kassab Bar No. 24071351 david@kassab.law r Envelope ID: 83597613 Filing Code Description: No Fee Documents Filing Description: THE KASSAB DEFS MOTION FOR JUDGtMENT NOT WITHSTANDING THE VERDICT AND TO DISREGARD JUiRY FINDINGS Status as of 1/19/2024 3:37 PM CST s Case Contacts Name BarNumber Email g TimestampSubmitted Status Harris Wells hwells@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT Todd Taylor ttaylor@jandflaw.com 1/19/2024 3:31:14 PM SENT Scott M.Favre scott@favrepa.com 1/19/2024 3:31:14 PM SENT Lawyer Wade lawayerwade@hotmail.com 1/19/2024 3:31:14 PM SENT Chris C.Pappas cpappas@krcl.com 1/19/2024 3:31:14 PM SENT Non-Party Witness Billy Shepherd bshepherd@spcounsel.com 1/19/2024 3:31:14 PM SENT Non-Party Dona Pohl c DonaLyann@yahoo.com 1/19/2024 3:31:14 PM SENT Non-Party Edgar Jaimes f edgarsroom@gmail.com 1/19/2024 3:31:14 PM SENT Kevin Dubose 6150500 kdubose@adjtlaw.com 1/19/2024 3:31:14 PM SENT Thallia Malespin tmalespin@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT Misty Davis C mdavis@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT Marisa Barrera Cruz Hurda 24041157 mhurd@adjtlaw.com 1/19/2024 3:31:14 PM SENT Lance Kassab eserve@kassab.law 1/19/2024 3:31:14 PM SENT Murray Fogler o mfogler@fbfog.com 1/19/2024 3:31:14 PM SENT Murray JFogleUr mfogler@foglerbrar.com 1/19/2024 3:31:14 PM SENT Andrew Johnson ajohnson@thompsoncoe.com 1/19/2024 3:31:14 PM SENT Benjamin Ritz britz@thompsoncoe.com 1/19/2024 3:31:14 PM SENT Dale Jefferson 10607900 jefferson@mdjwlaw.com 1/19/2024 3:31:14 PM SENT Raul Herman Suazo 24003021 suazo@mdjwlaw.com 1/19/2024 3:31:14 PM SENT Kevin Graham Cain 24012371 cain@mdjwlaw.com 1/19/2024 3:31:14 PM SENT D Kassab david@kassab.law 1/19/2024 3:31:14 PM SENT Murray J. Fogler 7207300 mfogler@foglerbrar.com 1/19/2024 3:31:14 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. David Kassab Bar No. 24071351 david@kassab.law r Envelope ID: 83597613 Filing Code Description: No Fee Documents Filing Description: THE KASSAB DEFS MOTION FOR JUDGtMENT NOT WITHSTANDING THE VERDICT AND TO DISREGARD JUiRY FINDINGS Status as of 1/19/2024 3:37 PM CST s Case Contacts Murray J. Fogler 7207300 mfogler@foglerbgrar.com 1/19/2024 3:31:14 PM SENT L Kassab lance@kassab.law 1/19/2024 3:31:14 PM SENT Kelly Skelton reception@kassab.law 1/19/2024 3:31:14 PM SENT Murray J. Fogler 7207300 mfogler@foglerbrar.com 1/19/2024 3:31:14 PM SENT Harris Wells hwaells@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT Harris Wells hwells@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT Harris Wells hwells@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT David Kassab c david@kassab.law 1/19/2024 3:31:14 PM SENT Jean C.Frizzell f jfrizzell@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 1/19/2024 3:31:14 PM SENT Todd Taylor ttaylor@jandflaw.com 1/19/2024 3:31:14 PM SENT

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1 row from filing_id in chain_steps
25 rows from filing_id in filing_sections
26 rows from filing_id in legal_theories
82 rows from filing_id in citations
24 rows from filing_id in statutes
34 rows from filing_id in key_assertions
29 rows from filing_id in key_facts
25 rows from filing_id in evidence_referenced
24 rows from filing_id in defenses_raised
0 rows from filing_id in rulings
24 rows from filing_id in appellate_issues