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68 2024-02-02 RSP Pohl Response to Mtn to Modify Judgment Pohl's Response to Kassab's Motion to Modify, Correct, or Reform Judgment, arguing all arguments are recycled and rejected, the jury properly awarded exemplary damages unanimously (Q17 answered per unanimity instructions, Q19 predicated on unanimous Q17, Kassab waived by not objecting before discharge), attorneys' fees from separate proceedings are recoverable actual losses under TUTSA's broad 'actual loss' definition and tort of another doctrine, damages are not duplicative (TUTSA expressly authorizes both actual loss and unjust enrichment), conspiracy is not preempted (it is a rule of joint liability, not an independent tort or conflicting remedy), and great-weight-and-preponderance arguments are meritless Response filed February 2, 2024, opposing Kassab's Motion to Modify, Correct, or Reform Judgment. Filed simultaneously with Pohl's response to the JNOV and New Trial motions. Incorporates prior briefing by reference. POST-2 N/A Phase 5 2024-02-02_RSP_Pohl-Response-to-Kassab-Mtn-to-Modify-Judgment_FILED.pdf Denial of Kassab's Motion to Modify, Correct, or Reform Judgment, and any other relief to which Pohl is entitled 2/2/2024 4:20 PM Marilyn Burgess - District Clerk Harris County Envelope No. 84108335 By: Patricia Gonzalez Filed: 2/2/2024 4:20 PM CAUSE NO. 2018-58419 MICHAEL A. POHL, et. al § IN THE DISTRICT COURT OF Plaintiffs, § V. § HARRIS COUNTY,k TEXAS § e LANCE CHRISTOPHER § C l KASSAB, et. al §  § c Defendants. § 281ST JUDrICIAL DISTRICT POHL’S RESPONSE TO KASSAB’S MOTION TO MODIFY, CORRECT, OR REFsORM JUDGMENT Plaintiffs Michael A. Pohl and Law Office of Michael A. Pohl, PLLC (collectively “Pohl”) respond in opposition to Defendants Lance Christopher Kassab’s and Lance Christopher Kassab, P.C. d/b/a The Kassab Law Firm’s (collectively “Kassab”) motion to modify, correct, or reform the judgment (“Motion to Modify”). a I. Summary.  The Motion to Modify primareily consists of recycled arguments that Kassab has previously made and that the Court has prefviously rejected. On that ground alone, the motion should be denied. y Substantively, CKassab re-argues in shotgun fashion that all of the damages found by the jury and awarded bay the Court are not recoverable for various erroneous reasons. As Pohl has previously brieffed at length, however, both the actual damages and exemplary damages are reasonablUe and fully supported by the verdict, the evidence, and the law. For these and other reasons that we discuss next, the Motion to Modify should be denied. II. The Jury Properly Awarded Exemplary Damages, and Pohl is Entitled to Recover Them. Kassab contends that the award of exemplary damages is unsupported and improper because the jury allegedly did not unanimously answer “Yes” in response to Question 17. See Motion to Modify, p. 4. But that is not true. On its face, the jury charge shorws that the jury unanimously answered “Yes” to Question 17 after being instructed to only answer the question “Yes” if the finding was unanimous. See Charge of the Court, p. 24. Irfi Kassab believed that the certificate of unanimity was in conflict with the answers containDed in the jury verdict, he was obligated to request that the jury be polled but did not do so. s In short, there is no conflict in the answers, but even if there were, Kassab waived it. r “The jury is presumed to have followed the court’s instructions.” Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 86l2 (Tex. 2009). When possible, a court “must” “reasonably construe the [jury’s] findings inM a way that harmonizes them.” USAA Tex. Lloyds Co. v. Menchaca, 545 S.W.3d 479, 509 (Teox. 2018); Bender v. S. Pac. Transp. Co., 600 S.W.2d 257, 260 (Tex. 1980). Failure to reconccile answers in favor of the jury’s verdict when possible is reversible error. Luna v. Southern Pacific Transp. Co., 724 S.W.2d 383, 384 (Tex. 1987). Even where the jury findings are ambiguous or unclear, the court must try to interpret the findings so as to uphold the verdict.  Jackson v. U.S. Fid. & Guar. Co., 689 S.W.2d 408, 412 (Tex. 1985). When a party contends cthat a jury’s award of exemplary damages is not supported by a unanimous jury finding, it is reviewed as a “no evidence” point. Redwine v. Peckinpaugh, 535 S.W.3d 44, 50 (Tex. App.—Tyler 2017, no pet.). Here, it is clearly apparent that the jury made the required unanimous findings to support the award of exemplary damages. First, the fact that the jury answered “Yes” in response to Question 17 in-and-of-itself shows that its finding was unanimous because the Court instructed the jury that it could only answer “Yes” to Question 17 if its answer was “unanimous.” See Charge of the Court, p. 24. Second, the fact that the jury awarded exemplary damages in response to Question 19 also shows that the jury answered Question 17 unanimously. Id. at p. 26. The Court instructed the jury that it could only answer Question 19 if it “unanimously anskwered ‘Yes’ to Question No. 17 or Question No. 18.” Id. The jury did not answer Question 1l8. Id. at p. 25. But the jury answered Question 19 and found that an award of exemplary cdamages of $3,000,000 against Kassab was warranted. Id. at p. 26. Given the Court’s instrucstions, the jury could not have answered Question 19 unless it unanimously answered “Yes” tos Question 17. See Bruce v. Oscar Renda Contracting, 657 S.W.3d 453, 464 (Tex. App.—El Paso 2022, pet. filed) (“Because the jury was instructed to only answer the gross negligence question, and the exemplary damages award question if unanimity was reached, we must presume it did so by following the instructions.”). Kassab’s argument requires the Couart to presume that the jury ignored the Court’s instructions in response to multiple questions, which would be an improper and impermissible presumption. Columbia Rio Grande eHealthcare, L.P., 284 S.W.3d at 862 (“The jury is presumed to have followed the court’s instrufctions.”). Specifically, Kassab’s argument that the jury’s answer to Question 17 was not unanyimous because the presiding juror appears to have inadvertently failed to sign the certificate oCf unanimity for the question is belied by the jury’s affirmative answers to Questions 17 and 19 in accordance with the Court’s instructions. The Daflflas Court of Appeals confronted this issue in the “pet. denied” case of Stover v. ADM MilUling Co., No. 05-17-00778-CV, 2018 WL 6818561 (Tex. App.—Dallas Dec. 28, 2018, pet. denied). The court of appeals was urged to find that the jury’s award of exemplary damages was not supported “because the findings on the threshold jury question nos. 5 and 6 were not certified to be unanimous.” 2018 WL 6818561, at *12. But the court of appeals properly rejected that argument and found that “the evidence is legally sufficient to support the jury’s award of exemplary damages” because the jury later unanimously answered questions predicated on unanimous answers to question nos. 5 and 6. See id. The court of appeals held: [W]e address Holmes and Holmes Law's argument that the evidence wask legally insufficient to support the jury's award of exemplary damages in jury qeuestion no. 17 because the findings on the threshold jury question nos. 5 and l6 were not certified to be unanimous. In support of their argument, they point to the verdict certificate where the jury stated, “Our verdict is not unanimous. Ecleven of us have agreed to each and every answer and have signed the certificate rbelow.” However, the record also contains an additional certificate signed by thse presiding juror that states, "I certify that the jury was unanimous in answering QDuestion No. 15, 16, 17, and 18. All 12 of us agreed to each of the answers." In sjury question nos. 5 and 6, the jury found Holmes and Holmes Law liable for comsmon law fraud and statutory fraud. The instructions for those jury questions did not require a unanimous verdict. However, both jury question nos. 15 (clrear and convincing evidence of fraud and statutory fraud) and 16 (malice) instructed the jury to answer those questions “only if [] [they] [] unanimously answered 'Yes' to any part of Question No. 5 [common law fraud] or if [they] unanimously answered 'Yes' to any part of Question No. 6 [statutolry fraud] and Question No. 7 [actual awareness].” Further, jury questioan no. 17 (exemplary damages) instructed the jury that they should only aMnswer the question “if [they] unanimously answered 'Yes' to Question 15 or Question No. 16.” The jury is presumed to have followed the trial court's instructions. See, e.g., Columbia Rio Grande Healthcare L.P. v. Hawley, 2e84 S.W.3d 851, 862 (Tex. 2009). We conclude the evidence is legally sufficient to support the jury's award of exemplary damages in jury question no. 17. Hfolmes and Holmes Law's issue 3.3(a) is decided against them. Id. (emphasis added). Stover is directly on point and directly rejects the argument that Kassab makes now. Kassab reclies on the “no pet.” case of Redwine v. Peckinpaugh, which is different for many reasons. 535 S.W.3d 44, 50 (Tex. App.—Tyler 2017, no pet.). In Redwine, the jury had a single cause of action for defamation before it. Redwine, 535 S.W.3d at 47. While it answered an exemplary damages question that it was instructed to only answer if unanimous, its answer was directly in conflict with its certification that the entire verdict was otherwise not unanimous. See id. at 51–52. The court then polled the jury, something that Kassab did not request here, and confirmed the lack of unanimity. See id. As explained in Bruce v. Oscar Renda Contracting, because Redwine dealt with a single cause of action giving rise to liability, the certification of non-unanimity was in ckonflict with an award of exemplary damages. 657 S.W.3d 453, 464 (Tex. App.—El Paso 202l2, pet. filed). The court in Bruce contrasted the facts in Redwine with a set of facts similcar to those in this case, saying: “We conclude that the jury’s certification at issue here does nsot have the same conclusive effect as it did in Redwine, given that this jury was permitted tos answer several questions by a 10 to 2 vote, unless otherwise instructed to only answer upon reaching unanimity.” Id. (emphasis added). In other words, because not all of the verdict needed to be unanimous, a general certificate of non-unanimity is not in conflict with an award of exemplary damages. Furthermore, in this case, like in Staover, the jury unanimously answered a question (Question 19) that was predicated on a unanimous answer to Question 17 after answering Question 17. Like in Stover, the jury here couled not have answered the latter question (Question 19) unless it unanimously answered the earflier question at issue (Question 17). That was not the case in Redwine. y Again, the jury Cis presumed to have followed the Court’s instructions, and the Court “must” “reasonably construe the [jury’s] findings in a way that harmonizes them.” USAA Tex. Lloyds Co., 545 S.W.3d at f5f09. Given the jury’s responses to Questions 17 and 19, and the Court’s related unanimityU instructions, the only reasonable construction of the jury’s findings is that the jury was unanimous in answering “Yes” to Question 17. Because there is evidence that the jury unanimously answered all exemplary damages questions, the Court “must” give effect to the jury’s answers and enter a judgment awarding exemplary damages. See id.; Bender v. S. Pac. Transp. Co., 600 S.W.2d at 260. Finally, although no conflict in the jury’s answers exists, Kassab’s failure to raise this issue before the jury was discharged waived the alleged conflict that Kassab claims nowk. Texas law is settled that “to preserve error based on fatally conflicting jury answers, partlies must raise that objection before the trial court discharges the jury.” USAA Texas Lloydcs, 545 S.W.3d 479, 518 (emphasis added) (discussing how Rule 295 requires that potential csonflicts in the verdict should be resolved by the trial court giving instructions to the jury beforse the jury is dismissed). The party relying on the alleged conflict to avoid the effect of answers awarding exemplary damages, Kassab here, has the burden to timely object. Id. at 509 (citing Burbage v. Burbage, 447 S.W.3d 249, 256 (Tex. 2014)). The rule is the same whether the comaplaint regarding the jury’s answers is that they are incomplete or that they are in fatal conflict; the objection must be raised before the jury is discharged in order to afford the triael court the opportunity to correct the error. Id. As further stated by the Supreme Court of Tfexas in USAA Texas Lloyds: [Texas Rule of Civyil Procedure] 295 provides the procedure for resolving incomplete and nonresponsive jury verdicts as well as those containing conflicting answers. Tex. RC. Civ. P. 295. Addressing incomplete verdicts, we have long held that a judgment will not be reversed "unless the party who would benefit from answers to the issues objects to the incomplete verdict before the jury is dischargecd, making it clear that he desires that the jury redeliberate on the issues or that tfhfe trial court grant a mistrial." Fleet v. Fleet, 711 S.W.2d 1, 3 (Tex. 1986); see also Continental Cas. Co. v. Street, 379 S.W.2d 648, 650 (Tex. 1964) (holding paUrty failed to preserve error because he "did not object to the acceptance of the jury verdict as incomplete, and thus by timely objection afford the trial court the opportunity, before the jury was discharged, of correcting the error (if such it was) of accepting the verdict with the issues unanswered"). We conclude that the same error-preservation requirement applies when a party complains of a judgment based on conflicting jury answers. Id. at 519 (emphasis added). Had Kassab timely raised the alleged conflict prior to the jury being discharged, Rule 295 would have resolved any confusion regarding how many jurors joined in answering Question 17. That is exactly what happened in Bryan v. Papalia, 542 S.W.3d 676, 692–93 (Tex. App.—Houston [14th Dist.] 2017, rev. granted, judgm’t vacated w.r.m.), where the Fourteenth Ckourt of Appeals addressed the issue at length as follows: l When the jury originally returned its verdict, the verdict form shocwed that the jury had answered “yes” as to Question 1 for Papalia and “yes” as tro Question 2. The trial court had instructed the jury that it could answer “yes” sto Question 2 only if all jurors agreed on that answer and only if all jurors had agDreed to answer “yes” in Question 1 as to Papalia. Despite this instruction, the sju  ry’s verdict certificate originally showed that only ten jurors had agreed tso all of the jury’s answers so only ten had agreed to answer Question 1 “yes” for Papalia and to answer Question 2 “yes,” but, in light of the trial court’sr instructions in Question 2, the jury’s affirmative answer to Question 2 indicated that the jury had answered these two questions unanimously.  After discussing this situation with coulnsel and polling the jury, the trial court explained to the jury in open court and on the record that the verdict form contained an ambiguity because the jury was iMnstructed to answer “yes” to Question 2 only if all jurors agreed to that answer, but the jurors indicated in the verdict certificate that only ten jurors agreed to thios answer. The trial court then directed the jury to return to the jury room and clearify on the verdict certificate whether the answer to Question 2 was unanimous . c. . . The jury later returned with an amended verdict certificate indicating tfhat the answers to the first two questions were unanimous and that ten jurors agreed to the answers to Questions 3 through 9 . . . Papalia argued in thpe JNOV Motion that the trial court should disregard the answer to Question 2 because only ten jurors agreed to that answer and signed the original verdict certificate. Though it is true that only ten jurors signed the original verdict certificate, aafter the jury returned to the jury room, the jury amended the verdict certificatec to show that all jurors agreed to the answers to the first two questions. In this contfext, the original verdict certificate does not provide a basis for disregarding the juory’s answer to Question 2. Bryan, 542 S.W.3d at 692–93 (emphasis added). Kassab waived the right to complain about any alleged conflict in the jury’s answers, even though there is no conflict, by not timely objecting before the jury was discharged. There is no error in the Court’s judgment. III. Pohl Is Entitled to Recover His Actual Losses and Damages Under TUTSA. Kassab requests the Court to reform the judgment to exclude Pohl’s damages that are based on attorneys’ fees incurred in connection with separate proceedings based on two grounds. First, Kassab argues that attorneys’ fees are not recoverable under TUTSA. See Motionk to Modify, pp. 5–10. Second, Kassab argues that the attorneys’ fees incurred in connectilon with grievance proceedings cannot be recovered. Id., pp. 10-11. Neither argument is cocrrect. A. Pohl’s TUTSA Losses And Damages Are Recoverasble. Despite having previously asserted the same rejected arguments on multiple prior occasions, Kassab continues to claim that portions of Pohl’s edamages are not recoverable because they are based on attorneys’ fees incurred in separate pr u oceedings.1 See Motion to Modify at 5– 11. Kassab was wrong before, and he remains wronng now. It is true that attorneys’ fees typically do not constitute actual damages when incurrerd in the same lawsuit. But attorneys’ fees from separate proceedings—incurred as the result of wrongful conduct of the defendant—do constitute actual damages in a subsequent lawsueit and are recoverable. See, e.g., Akin Gump Strauss Hauer & Feld, LLP v. National Developfment & Research Corp., 299 S.W.3d 106, 119-22 (Tex. 2009). Kassab conflates these distinyct scenarios in arguing otherwise. TUTSA authorizes the recovery of damages, including “actual loss caused by misappropriation.” a TEX. CIV. PRAC. & REM. CODE § 134A.004(a). On its face, the plain meaning of “actual loss” fis broad and encompasses consequential losses such as attorney’s fees in separate proceedings. This broad definition of damages is not surprising because a “‘flexible and imaginative’ approach is applied to the calculation of damages in misappropriation-of-trade- 1 See, e.g., Kassab’s Traditional Motion for Summary Judgment, pp. 76–80, filed August 29, 2022; Pohl’s Response in Opposition to Kassab’s Traditional Motions for Summary Judgment, filed September 12, 2022; see also Court’s October 31, 2022, order denying Kassab’s motion for summary judgment. Pohl incorporates his prior briefing on this issue by reference. secrets cases.” Sw. Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 710 (Tex. 2016). To the extent that the Court wishes to look at persuasive authority from other states, they too have recognized that the definition of “actual loss” is broad and encompasses tort damages where a “plaintiff must prove that its loss was caused by the defendant’s violation.” Skee World Wide Prosthetic Supply, Inc. v. Mikulsky, 640 N.W.2d 764, 770 (Wis. 2002); Dunsmlore & Associates, Ltd. v. D'Alessio, No. 409906, 2000 WL 124995, at *10 (Conn. Super. Cct. Jan. 6, 2000) (“Actual loss in this context means the amount of money that the plaintifsf lost from the defendant's misappropriation; it is measured by how much better off the plasintiff would have been but for the defendant's misappropriation.”). The weakness of Kassab’s position is showcased by his misleading citation to caselaw. Kassab cites to Florida caselaw asserting that “‘actual loss’ means ‘loss of profits, lost customers or lost market share.’” See Motion to Modifya, p. 5 (citations omitted). While Pohl disputes that Florida limits actual loss damages to these three categories, if it did, it demonstrates why the Court should ignore this non-controlling autehority. Moreover, Kassab does not dispute that Texas allows recovery of damages outside of tfhose three categories of damages. See, e.g., Motion to Modify, pp. 12-13 (not disputing thaty market value is recoverable as a measure of “actual loss”). Kassab’s citatioCn to Texas caselaw fares no better. Here, even though the issue concerns recovery of attorneys’ fees incurred in separate proceedings, Kassab cites multiple cases dealing with recovery foff attorneys’ fees incurred in the same proceeding.2 See Motion to Modify, p. 7. 2 Lacore Enters., LLC v. Angles, 2023 WL 2607562, *9 (Tex. App.—Dallas Mar. 23, 2023, no pet.) (standing for the non-controversial conclusion that fees from the same lawsuit are not recoverable as damages under the American rule); O’Neal v. Dale, 2021 WL 210848, *10 (Tex. App.—Fort Worth Jan. 21, 2021, no pet.) (standing for the uncontroversial proposition that fees incurred in the present lawsuit do not typically constitute damages); Woodhaven Partners, Ltd. v. Shamoun & Norman, L.L.P., 422 S.W.3d 821, 839 (Tex. App.—Dallas 2014, no pet.) (“the only damages stated by appellants consist of legal fees and expenses they incurred in defending against this lawsuit brought by appellee and in prosecuting their counterclaims.”). Furthermore, some of the cases do not concern recovery of attorneys’ fees at all,3 and one was cited for a proposition that was subsequently overruled.4 The Court should not consider Kassab’s misleading citations. And even if the Court were not convinced that TUTSA alone authorized kthe recovery of Pohl’s damages, Pohl’s damages are recoverable under equitable principlesl. See Dixon Fin. Services, Ltd. v. Chang, 325 S.W.3d 668, 678 (Tex. App.—Houston [1st cDist.] 2010, pet. denied) (“Equitable principles allow the recovery of attorney’s fees as actuasl damages when a party was required to prosecute or defend a prior legal action as a conssequence of a wrongful act of the defendant.”).5 Kassab acknowledges the potential applicability of this equitable doctrine but claims that Pohl cannot qualify because an equitable doctrine can only apply when the plaintiff is “wholly innocent” of any wrongdoing. See Motion to Maodify, p. 9. Pohl disputes that the “wholly innocent party” element is properly part of the tort of another doctrine. Indeed, Kassab himself cites 3 Tana Oil & Gas Corp. v. McoCall, 104 S.W.3d 80, 81 (Tex. 2003) (rejecting argument that parties could recover for the value of their own timCe because the Court saw “no causal relationship between the tortious interference the McCalls allege and the only damages they claim.”); Tex. Mut. Ins. Co. v. Ray Ferguson Interests, Inc., 2006 WL 648834, *8 (Tex. App.—a lHouston [1st Dist.] Mar. 16, 2006, pet. denied) (finding that a company’s financial loss due to employees spendingi time on depositions and discovery did not constitute damages in the same lawsuit). 4 See Motion to Mfodify, p. 7 (citing Martin-Simon v. Womack, 68 S.W.3d 793, 797 (Tex. App.—Houston [14th Dist.] 2001, pet. denied) for the proposition that “attorney’s fees are recoverable only when an agreement between the parties so provides.”). This is in direct conflict with multiple subsequent Supreme Court of Texas cases. See, e.g., Akin, Gump, Strauss, Hauer & Feld, L.L.P., 299 S.W.3d at 120–21 (finding an award of attorneys’ fees could be proper even absent an agreement between the parties). 5 Kassab continues to cite inapplicable caselaw throughout. For example, he cites Riner v. Neumann, 353 S.W.3d 312, 323 (Tex. App.—Dallas 2011, no pet.) as support for his contention that “[o]ther intermediate courts of appeals have likewise refused to adopt the tort of another doctrine.” See Motion to Modify, p. 8 n.4. This is false. Riner does not mention the tort of another doctrine. See generally Riner, 353 S.W.3d 312. Instead, the court in that case declined to adopt an exception to the American rule prohibiting recovery of attorneys’ fees in the same case absent authorization. See id. at 322. 10 multiple cases demonstrating that there is no wholly innocent party element to the doctrine.6 See Akin, Gump, Strauss, Hauer & Feld, L.L.P., 299 S.W.3d at 106; Naschke v. Gulf Coast Conference, 187 S.W.3d 653 (Tex. App.—Houston [14th Dist.] 2006, pet. denied); Brannan Paving GP, LLC v. Pavement Markings, Inc., 446 S.W.3d 14 (Tex. App.—Corpus Christi 2013, petk. denied). Regardless, however, Kassab is incorrect that the jury found that Plohl’s trade secret damages were caused by Pohl’s conduct. In response to Question 4—whicch was the proportionate responsibility question specifically tied to the misappropriation of tsrade secrets claim—the jury assigned 0% of the responsibility to Pohl. See Ex. A at 10.7 sKassab ignores this question and instead contends the jury’s answer to Question 3 shows that Pohl is not “wholly innocent.” See Motion to Modify, p. 9. But Question 3 is not tied to the misappropriation of trade secrets. See Ex. A at 9. In fact, the jury specifically asked if they should still answer Question 3 even if they found that no trade secrets existed. With thea agreement of Kassab, the Court instructed the jury that they should still respond to Question 3 even if they answered “No” to both parts of Question 1 regarding the existence and ownersehip of a trade secret. The attorneys’ fees that fPohl incurred in separate proceedings as a result of Kassab’s wrongful conduct are recovyerable as part of Pohl’s “actual loss” in this lawsuit. Kassab’s arguments otherwise aCre not supported by controlling law. The Court correctly entered judgment in favor of Pohl for the amount of his “actual loss” found by the jury. B. fRule 17.09 of the Texas Rules of Disciplinary Procedure Does Not Apply. AUs a threshold matter, this lawsuit is not predicated on Kassab filing a grievance or participating in the grievance process. It is predicated on Kassab’s misappropriation of Pohl’s 6 Further, Kassab’s reliance on the idea of a wholly innocent party exception is not consistent with the history of the doctrine. See James Michael Stanton, Recovering Attorney’s Fees in Equity Under Texas Law: Why Some Texas Courts of Appeal Have It Wrong, 29 T. Marshall L. Rev. 243, 278 (2004). 7 This Exhibit A is attached to Pohl’s Response to Kassab’s Motion for New Trial and Motion for JNOV. 11 trade secrets. For that reason alone, Rule 17.09 of the Texas Rules of Disciplinary Procedure does not apply, and the Court should reject Kassab’s argument otherwise. See Motion to Modify, pp.10- 11. Regardless, this issue has been briefed extensively before, and Pohl wilkl not repeat the same arguments now. Pohl incorporates his prior briefing by reference. l See, e.g., Pohl’s November 30, 2022, Rule 166(g) Motion, pp. 12–14. Bottom line, thec Court properly rejected Kassab’s arguments on the issue then, and it should reject them agains now. IV. The Damages Awarded to Pohl Are Not Duplicative. s Kassab requests the Court to modify the judgment to exclude allegedly duplicative damages. But the damages are not duplicative. To the contrary, TUTSA expressly authorizes the recovery of “both the actual loss caused by misappropriation and the unjust enrichment caused by misappropriation that is not taken into accou nt in computing actual loss.” TEX. CIV. PRAC. & REM. CODE § 134A.004(a) (emphasis added). Kassab agrees that the market value damages found by the jury are “actual loss” damagese. See Motion to Modify, p. 12. Kassab also agrees that the jury found that he had been unjfustly enriched through his misconduct in the form of avoided development costs. Id. Andy the jury was specifically instructed that it should “not award any sum of money on any elemCent if you have otherwise, under some other element in this question, awarded a sum of maoney for the same loss.” See Charge of the Court, p. 13. Once again, the Court must prefsume that the jury followed its instructions. Columbia Rio Grande Healthcare, L.P., 284U S.W.3d at 862. Additionally, the awards are not duplicative because the jury could have found that the market value damages compensated Pohl for the loss of value of his trade secrets going forward, as that value was destroyed or lessened by Kassab’s unlawful use and disclosure of the trade secrets. The jury also could have found that the market value damages were separate and distinct 12 from the improper benefit Kassab received by avoiding development costs (a) that he otherwise would have incurred in the past, and (b) that the Texas Uniform Trade Secrets Act expressly allowed the jury to consider in addition to actual loss. See TEX. CIV. PRAC. & REM. CODE § 134A.004(a) (“both the actual loss caused by misappropriation and the unjust enrickhment” may be recovered). l Finally on this point, the unjust enrichment award could not havce compensated Pohl for the actual loss associated with the market value of Pohl’s trade secretss because unjust enrichment is an equitable remedy that disgorges unjust gains instead of cosmpensating for loss. See Nguyen v. Watts, 605 S.W.3d 761,789 (Tex. App.—Houston [1st Dist.] 2020, pet. denied) (“Recovery for unjust enrichment arises from the equitable principle that a person receiving benefits, which were unjust for him to retain, should make restitution.”) (citing Villarreal v. Grant Geophysical, Inc., 136 S.W.3d 265, 270 (Tex. App.—San Antoniao 2004, pet. denied). Because the jury viewed unjust enrichment as not being accounted for in its award of “actual loss” damages, and because this would be reasonable given that an aweard based on unjust enrichment does not seek to redress loss, the finding is not duplicative undfer TUTSA. Id. V. Kassab’s Argumenty for Preemption Of Pohl’s “Conspiracy Claim” Is Inapposite Because Texas Only Recognizes Conspiracy as a “Rule” of Joint and Several Liability—NotC a Cause of Action. Kassab arguaes that the Court should disregard the jury’s conspiracy finding and reform the judgment to elimfinate Kassab’s joint and several liability because he contends that conspiracy is “either prUeempted by TUTSA or subject to the [statutory] proportionate responsibility scheme.” See Motion to Modify, p. 13. Yet Kassab cites no binding precedent holding that Pohl’s conspiracy allegations are improper. The Court should reject Kassab’s arguments. Based on unpublished federal cases, Kassab claims that “courts have concluded that Chapter 33’s proportionate responsibility scheme applies to conspiracy claims, rather than joint 13 and several liability.” See id. at 14. But Kassab ignores contrary published Texas caselaw. The Dallas Court of Appeals recently rejected “the premise that Chapter 33 superseded the rule that civil conspiracy findings result in joint and several liability.” Guillory v. Dietrich, 598 S.W.3d 284, 296 (Tex. App.—Dallas 2020, pet. denied). Other Texas appellate courts hkave reached the same conclusion. See, e.g., Stephens v. Three Finger Black Shale P’ship, 58l0 S.W.3d 687, 719 (Tex. App.—Eastland 2019, pet. denied) (“[w]e are of the opinion that jcoint and several liability attaches to a civil conspiracy finding and is not affected by the sproportionate responsibility statutes.”). s  Furthermore, in addition to the fact that they do not control this Court, the authorities that Kassab cites erroneously recognized civil conspiracy as a cause of action rather than a rule of liability. Indeed, Kassab’s whole argument presupposes that preemption is warranted because conspiracy is a cause of action to which Cahapter 33 applies. See Motion to Modify, p. 14. However, the Supreme Court of Texas has clarified that conspiracy is not a cause of action; rather it is simply a rule of joint liability. Agear Corp. v. Electro Circuits Int'l, LLC, 580 S.W.3d 136, 142 (Tex. 2019) (“civil conspiracy is fa theory of vicarious liability and not an independent tort”). As a result, even the reasoning yof the non-controlling authorities that Kassab relies on is misplaced. Id. C Notably, Kassab failed to cite any Texas caselaw holding that TUTSA preempts an allegation of a fcfonspiracy to misappropriate trade secrets. The absence of any supporting Texas caselaw iUs telling. See Motion to Modify, pp. 13–15. Under the facts of this case, there is simply no basis for preemption. TUTSA provides that it “displaces conflicting tort, restitutionary, and other law of this state providing civil remedies for misappropriation of a trade secret.” TEX. CIV. PRAC. & REM. CODE § 134A.007(a) (emphasis added). Conspiracy does not provide a conflicting 14 remedy in this case.8 It merely provides that damages are joint and several. For this reason, Texas trial courts have continued to submit both TUTSA and conspiracy claims to the jury. See, e.g., Whitlock v. CSI Risk Mgmt., LLC, No. 05-19-01297-CV, 2021 WL 1712215, at *13 (Tex. App.— Dallas Apr. 30, 2021, pet. denied), reh’g denied (June 7, 2021) (holding that the conkspiracy finding was supported by the underlying tort of misappropriation of trade secrets). l Pohl’s TUTSA claim provides the remedy—damages for the micsappropriation of Pohl’s trade secrets. Application of the law of conspiracy simply makes thsat remedy apply jointly and severally. That is no more objectionable or inconsistent withs TUTSA than application of the proportionate responsibility statute, which Kassab acknowledges applies. The Court should reject Kassab’s selective and erroneous invocation of TUTSA preemption. VI. Pohl Is Entitled to Recover Attorneys’ Fees, and Kassab Is Not Entitled to a Take Nothing Judgment. l Kassab argues in the form of an Momnibus point that, because virtually all actual and exemplary damages awarded by the juory are purportedly improper, Kassab is entitled to a take nothing judgment because (a) thce applicable settlement credit exceeds Pohl’s recoverable damages, and therefore (b) Pohl is not a “prevailing party” entitled to recover attorney’s fees under TUTSA. See Motion to Modify, p. 15. But as we previously explained, Pohl is entitled to recover both his actual loss and damages for Kassab’s unjust enrichment. See TEX. CIV. PRAC. & REM. CODE § 134A.004c(a) (“both the actual loss caused by misappropriation and the unjust enrichment” may be recovered). Likewise, as we also previously explained, Pohl is entitled to recover the attorney’s fees that he incurred in separate proceedings due to Kassab’s unlawful conduct as part 8 As an aside, Kassab’s TUTSA expert, Joseph Cleveland, appears to assume that allegations of conspiracy can exist alongside a TUTSA claim, as he makes no mention of preemption in discussing them in conjunction with each other. Cf. Joseph F. Cleveland, Jr., J. Heath Coffman, Kevin C. Smith, A Practitioner's Guide to the Texas Uniform Trade Secrets Act, Tex. J. Bus. L. 1, 16 (2019) (discussing how pleading conspiracy in connection with a TUTSA claim “will virtually guarantee that the TCPA applies”). 15 of Pohl’s actual loss. Because Pohl is entitled to recover these damages, Kassab’s argument that exemplary damages must be reduced to reflect Kassab’s desired pruning of actual damages is meritless. Pohl’s recoverable actual damages, exclusive of attorney’s fees incurred kin this case and exemplary damages, total more than $1,400,000.00. They greatly exceed the aplplicable settlement credit of $765,000.00. Pohl is the “prevailing party” and is entitled toc recover attorney’s fees incurred in this case under TUTSA, as well as all other damages fousnd by the jury and awarded by the Court. See TEX. CIV. PRAC. & REM. CODE § 134A.005. s  VII. Kassab’s Great-Weight-and-Preponderance of the Evidence Arguments are Meritless. r Lastly, Kassab makes a four-sentence effort to argue that the verdict is against the great weight and preponderance of the evidence, yet Kalssab fails to discuss any specific evidence. Even had Kassab adequately briefed this point, aMnd he did not, it should be rejected. Great-weight-and-preponderancoe arguments come with a heavy burden. See e.g. Harding v. Lewis, 133 S.W.3d 693, 698 (Texc. App.—Corpus Christi 2003, no pet.) (party asserting great- weigh-and-preponderance point carries a heavy burden to show that the evidence supporting the finding is so weak as to be clearly wrong and manifestly unjust). This is because it is the jury’s exclusive province to determine the weight to be given to testimony and to resolve any conflicts in the evidence. cHome Ins. Co. v. Garcia, 74 S.W.3d 52 (Tex. App.—El Paso 2002, no pet.) (a court should not substitute its evaluation of the evidence for the jury’s unless, based on the evidence supporting the jury’s answer, the verdict is manifestly unjust). Here, the jury heard and considered testimonial evidence (both fact and expert) and documentary evidence supporting the actual damages that Pohl sustained as a result of Kassab’s 16 misconduct, which the jury was entitled to accept or reject. The jury chose to accept this evidence and, therefore, the verdict and judgment should stand. Id. As to exemplary damages specifically, the evidence of Kassab’s willful and malicious misconduct was overwhelming, which perhaps is why Kassab chose not to address kit in the Motion to Modify. Under the guise of a phony expert witness agreement, Kassab secretlly purchased Pohl’s client files and trade secrets for his own benefit. Thereafter, Kassab used cthe fruits of the unlawful purchase to file multiple unsuccessful grievances and lawsuits againsst Pohl for Kassab’s personal financial gain. And in what can only be described as a maliscious effort to destroy Pohl both personally and professionally, Kassab publicized one of his grievances against Pohl (which was ultimately dismissed like all of the others) to the Texas Attorney General, the Harris County District Attorney, the Houston Chronicle, The Texas Lawyer, and a then-candidate for president of the State Bar of Texas. Yet Kassab refused ato acknowledge any error or wrongdoing at all, even denying that he had purchased Pohl’s files after a federal judge found in a written order that he had. Instead, Kassab purported to jusetify his unlawful conduct by accusing Pohl of wrongdoing— an accusation that the jury squarefly rejected. The jury saw througyh Kassab’s unaccountable subterfuge and rejected Kassab’s false theory of “vigilante” juCstice. Based on substantial and compelling evidence, the jury appropriately awarded exemplary damages to send a message to Kassab and others like him that such malicious, willful, and unflafwful conduct will not be tolerated. TUhe jury’s findings as to both Pohl’s actual damages and exemplary damages are amply supported by the evidence. Kassab’s great-weight-and-preponderance arguments are meritless. VIII. Conclusion. Pohl requests the Court to deny Kassab’s Motion to Modify. Pohl requests any other, further, or alternative relief to which he is entitled. 17 Dated: February 2, 2024 Respectfully submitted, REYNOLDS FRIZZELL LLP By: /s/ Jean C. Frizzell Jean C. Frizzell State Bar No. 07484650 1100 Louisiana St., Suite 3500 r Houston, Texas 77002 Tel. 713.485.7200 Fax 713.485.7250 t jfrizzell@reynoldsfrizzell.ciom Attorney for Plaintiffs iMichael Pohl and Law Office of Michael A. Pohl, PLLC CERTIFICATE OF SERVICE I hereby certify that a true and correct copyy of this document was served on all counsel of record pursuant to the Texas Rules of Civil Prorciedure on this 2nd day of February, 2024. f /s/ Jean C. Frizzell  Jean C. Frizzell 18 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Suni Blue on behalf of Jean Frizzell Bar No. 7484650 sblue@reynoldsfrizzell.com r Envelope ID: 84108335 Filing Code Description: No Fee Documents Filing Description: Pohl's Response to Kassab's Motion to Motdify Judgment i Status as of 2/2/2024 4:37 PM CST s Case Contacts  Name BarNumber Email g TimestampSubmitted Status Harris Wells hwells@reynoldsfrizzell.com 2/2/2024 4:20:58 PM SENT Andrew Johnson ajohnson@thompsoncoe.com 2/2/2024 4:20:58 PM SENT Benjamin Ritz britz@thompsoncoe.com 2/2/2024 4:20:58 PM SENT Murray JFogler mfaogler@foglerbrar.com 2/2/2024 4:20:58 PM SENT Murray Fogler mfogler@fbfog.com 2/2/2024 4:20:58 PM SENT Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 2/2/2024 4:20:58 PM SENT Dale Jefferson 10607c900 jefferson@mdjwlaw.com 2/2/2024 4:20:58 PM SENT Raul Herman Suazo 240f03021 suazo@mdjwlaw.com 2/2/2024 4:20:58 PM SENT Kevin Graham Cain 24012371 cain@mdjwlaw.com 2/2/2024 4:20:58 PM SENT Todd Taylor ttaylor@jandflaw.com 2/2/2024 4:20:58 PM SENT Scott M.Favre C scott@favrepa.com 2/2/2024 4:20:58 PM SENT Lawyer Wade a lawyerwade@hotmail.com 2/2/2024 4:20:58 PM SENT Chris C.Pappas cpappas@krcl.com 2/2/2024 4:20:58 PM SENT Non-Party Witnesso Billy Shepherd bshepherd@spcounsel.com 2/2/2024 4:20:58 PM SENT Non-Party DoUna Pohl DonaLyann@yahoo.com 2/2/2024 4:20:58 PM SENT Non-Party Edgar Jaimes edgarsroom@gmail.com 2/2/2024 4:20:58 PM SENT Kevin Dubose 6150500 kdubose@adjtlaw.com 2/2/2024 4:20:58 PM SENT Marisa Barrera Cruz Hurd 24041157 mhurd@adjtlaw.com 2/2/2024 4:20:58 PM SENT Andrea Mendez andrea@kassab.law 2/2/2024 4:20:58 PM SENT Lance Kassab lance@kassab.law 2/2/2024 4:20:58 PM SENT David Kassab david@kassab.law 2/2/2024 4:20:58 PM SENT Nicholas Pierce nicholas@kassab.law 2/2/2024 4:20:58 PM SENT Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Suni Blue on behalf of Jean Frizzell Bar No. 7484650 sblue@reynoldsfrizzell.com r Envelope ID: 84108335 Filing Code Description: No Fee Documents Filing Description: Pohl's Response to Kassab's Motion to Motdify Judgment i Status as of 2/2/2024 4:37 PM CST s Case Contacts  Nicholas Pierce nicholas@kassagb.law 2/2/2024 4:20:58 PM SENT Lance Kassab eserve@kassab.law 2/2/2024 4:20:58 PM SENT D Kassab david@kassab.law 2/2/2024 4:20:58 PM SENT L Kassab lance@kassab.law 2/2/2024 4:20:58 PM SENT Kelly Skelton recaeption@kassab.law 2/2/2024 4:20:58 PM SENT Murray J. Fogler 7207300 mfogler@foglerbrar.com 2/2/2024 4:20:58 PM SENT Thallia Malespin tmalespin@reynoldsfrizzell.com 2/2/2024 4:20:58 PM SENT Misty Davis c mdavis@reynoldsfrizzell.com 2/2/2024 4:20:58 PM SENT Harris Wells f hwells@reynoldsfrizzell.com 2/2/2024 4:20:58 PM SENT David Kassab  david@kassab.law 2/2/2024 4:20:58 PM SENT Harris Wells hwells@reynoldsfrizzell.com 2/2/2024 4:20:58 PM SENT Harris Wells C hwells@reynoldsfrizzell.com 2/2/2024 4:20:58 PM SENT

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