order_id,date,title,court,filename,full_text
16,2025-01-06,2025-01-06 BRF Kassab-Appellants-Brief-Final-Judgment-Appeal FILED,appellate,2025-01-06_BRF_Kassab-Appellants-Brief-Final-Judgment-Appeal_FILED.pdf,"KASSAB v. MICHAEL A. POHL & LAW OFFICE OF MICHAEL A. POHL
No. 01-24-00220-CV
COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON
January 6, 2025
Reporter
2025 TX APP. CT. BRIEFS LEXIS 119 *
LANCE CHRISTOPHER KASSAB AND LANCE CHRISTOPHER KASSAB, PC D/B/A THE
KASSAB LAW FIRM, Appellants v. MICHAEL A. POHL AND LAW OFFICE OF MICHAEL A.
POHL, PLLC, Appellees
Type: Brief
Prior History: On Appeal from the 281st District Court, Harris County, Texas. Trial Court Case
No. 2018-58419.
Counsel
Kevin Dubose, State Bar No. 06150500, Marisa C. Hurd, State Bar No. 24041157, Alexander
Dubose & Jefferson LLP, Houston, Texas
David Eric Kassab, State Bar No. 24071351, Lance Christopher Kassab, State Bar No.
00794070, THE KASSAB LAW FIRM, Houston, Texas, Attorneys for Appellants
Murray Fogler, FOGLER, BRAR, O'NEIL AND GRAY, LLP, Houston, Texas, Trial Counsel
Counsel for Appellees : Andy Taylor, Andy Taylor & Associates, P.C., Brenham, Texas,
Appellate Counsel
Jean C. Frizzell, Harris Wells, REYNOLDS FRIZZELL LLP, Houston, Texas, Trial Counsel
Counsel for Nonparties: Dale Jefferson, Raul Suazo, Kevin Cain, MARTIN, DISIERE,
JEFFERSON & WISDOM, LLP, Houston, Texas, Trial Counsel
Counsel for Nonparties: Andrew L. Johnson, Zandra Foley, Benjamin S. Ritz, THOMPSON,
COE, COUSINS & IRONS, LLP, Houston, Texas, Trial Counsel
Jessica Z. Barger, E. Marie Jamison, WRIGHT CLOSE & BARGER, LLP, Houston, Texas,
Trial and Appellate Counsel
Chris C. Pappas, Andrew J. Sarne, Kimberly C. Clark, KANE RUSSELL COLEMAN LOGAN
PC, Houston, Texas, Trial and Appellate Counsel
Page 2 of 40
2025 TX APP. CT. BRIEFS LEXIS 119, *119
Counsel for Nonparties: Todd Taylor, Jocelyn A. Holland, JOHANSON & FAIRLESS, Sugar
Land, Texas, Trial and Appellate Counsel.
Title
APPELLANTS' BRIEF
Text
[*1] IDENTITY OF PARTIES AND COUNSEL
Appellants: Lance Christopher Kassab and Lance Christopher Kassab PC, d/b/a The Kassab
Law Firm
Counsel for Appellants: Kevin Dubose
Marisa C. Hurd
ALEXANDER DUBOSE & JEFFERSON LLP
1844 Harvard St.
Houston, Texas 77008
(713) 523-0667
(713) 522-4553 (facsimile)
Appellate Counsel
David Eric Kassab
Lance Christopher Kassab
THE KASSAB LAW FIRM
1214 Elgin Street
Houston, Texas 77004
(713) 522-7400
(713) 522-7410 (facsimile)
Trial and Appellate Counsel
Murray Fogler
FOGLER, BRAR, O'NEIL AND GRAY, LLP
909 Fannin, Suite 1640
Houston, Texas 77010
(713) 481-1010
(713) 574-3224 (facsimile)
Trial Counsel
Appellees:
Michael Pohl and Law Office of Michael A. Pohl, PLLC
Page 3 of 40
2025 TX APP. CT. BRIEFS LEXIS 119, *1
Counsel for Appellees: Andy Taylor
Andy Taylor & Associates, P.C.
2628 Highway 36S, # 288
Brenham, Texas 77833
(713) 412-4025
Appellate Counsel
Jean C. Frizzell
Harris Wells
REYNOLDS FRIZZELL LLP
1100 Louisiana St., Suite 3500
Houston, Texas 77002
(713) 485-7200
(713) 485-7250 (facsimile)
Trial Counsel
Nonparties to Appeal:
F. Douglas Montague III and Montague Pittman & Varnado, P.A.
Counsel for Nonparties [*2] :
Dale Jefferson
Raul Suazo
Kevin Cain
MARTIN, DISIERE, JEFFERSON & WISDOM, LLP
808 Travis Street, 20th Floor
Houston, Texas 77002
(713) 632-1700
(713) 222-0101 (facsimile)
Trial Counsel
Nonparties to Appeal:
Tina Nicholson and Baker Nicholson, LLP d/b/a Baker Nicholson Law Firm
Counsel for Nonparties:
Andrew L. Johnson
Zandra Foley
Benjamin S. Ritz
THOMPSON, COE, COUSINS & IRONS, LLP
One Riverway, Suite 1400
Page 4 of 40
2025 TX APP. CT. BRIEFS LEXIS 119, *2
Houston, Texas 77056
(713) 403-8210
(713) 403-8299 (facsimile)
Trial Counsel
Jessica Z. Barger
E. Marie Jamison
WRIGHT CLOSE & BARGER, LLP
One Riverway, Suite 2200
Houston, Texas 77056
(713) 572-4321
(713) 572-4320 (facsimile)
Trial and Appellate Counsel
Chris C. Pappas
Andrew J. Sarne
Kimberly C. Clark
KANE RUSSELL COLEMAN LOGAN PC
5051 Westheimer Road, Suite 1000
Houston, Texas 77056
(713) 425-7400
(713) 425-7700 (facsimile)
Trial and Appellate Counsel
Nonparties to Appeal:
Scott Favre, Scott M. Favre Public Adjuster, LLC and Precision Marketing Group, LLC
Counsel for Nonparties:
Todd Taylor
Jocelyn A. Holland
JOHANSON & FAIRLESS
1456 First Colony Boulevard
Sugar [*3] Land, Texas 77479
(281) 313-5000
(281) 340-5100 (facsimile)
Trial and Appellate Counsel
RECORD REFERENCES
Page 5 of 40
2025 TX APP. CT. BRIEFS LEXIS 119, *3
CR Clerk Record consisting of fourteen volumes, the first number preceding CR represents
the volume and the first number following CR represents the pinpoint cite within that record.
RR Reporter Record consisting of forty-three volumes, the first number preceding RR
represents the volume and the first number following RR represents the page number within that
volume.
PX Plaintiffs trial exhibits contained in volumes 14 through 32 of the Reporter Record, the
number following the PX represents the exhibit number.
DX Defendants' trial exhibits contained in volumes 33 through 43 of the Reporter Record,
the number following the DX represents the exhibit number.
App. Tab Documents included in the Appendix to this Brief, which contains an index
organized by numbered Tabs.
STATEMENT OF THE CASE
Nature of Case Pohl 1 sued Kassab 2 for theft of trade secrets, conversion, and civil conspiracy.
App. [*4] Tab 1 (1CR99-261). Pohl's former clients assigned barratry claims to Kassab, and
Kassab asserted those claims against Pohl as counterclaims. 1CR43-50.
Trial Court The 281st Judicial District Court, Harris County, Texas; Honorable Christine Weems.
Proceedings The trial court denied summary judgment on Pohl's claims, 3 but granted summary
judgment on Kassab's counterclaims. App. Tab 3 (2CR892). Pohl's claims were tried to a jury
who found in Pohl's favor. App. Tab 8 (13CR10919-10951).
Disposition Kassab's post-trial motions were either denied or overruled byoperation of law 4 and
the trial court entered judgment on the verdict. App. Tab 10 (14CR11290-11328).
STATEMENT REGARDING ORAL ARGUMENT
This appeal involves multiple legal questions, some of first impression, that have far-reaching
implications on the application of trade-secret law to [*5] the legal profession:
. Whether a lawyer can claim property of the client -- such as attorney-client contracts and
lists created from that information -- as his own protectable trade secret.
. Whether a lawyer's obligation to keep client-related information confidential creates a
trade secret belonging to the lawyer.
1 Appellees Michael Pohl and Law Office of Michael A. Pohl, PLLC.
2 Appellants Lance Christopher Kassab and Law Offices of Lance Christopher Kassab, PC.
3 App. Tab 2 (1CR358); App. Tab 6 (10CR7851); 2RR3, 75.
4 The trial court only signed an order denying Kassab's first motion for new trial based on evidence of witness tampering. See
App. Tab 9 (14CR11287). Others were denied by operation of law.
Page 6 of 40
2025 TX APP. CT. BRIEFS LEXIS 119, *5
. Whether ""actual loss"" under the Texas Uniform Trade Secrets Act (""TUTSA"") includes
attorney's fees incurred by a lawyer defending against claims and grievances brought by his
former clients.
. Whether the disclosing lawyer is privileged or immune from liability for his use of client
identities and contracts to disclose criminal misconduct to those clients, the courts, and the
State Bar.
The importance and complexity of these questions underscores the value of oral argument in
assisting the Court's deliberation.
ISSUES PRESENTED
1. Any judgment for liability should be reversed and a take-nothing judgment entered because,
as a matter of law: (a) Pohl did not own the purported trade secrets; (b) the disputed materials
were not trade secrets; (c) there was no misappropriation; (d) the claims were barred by
limitations; and (e) the claims were barred [*6] by privilege and immunity.
2. Alternatively, the judgment should be reformed to eliminate elements of damages that
cannot be recovered as a matter of law. Specifically: (a) exemplary damages cannot be
recovered because of the lack of unanimity in answering the predicate liability question; (b)
attorney's fees incurred in previous litigation or in defense of grievance proceedings cannot be
recovered under TUTSA as actual damages; (c) other actual damages should be eliminated or
reduced because there is no evidence of market value or development costs and Pohl cannot
recover both; (d) joint-and-several liability is improper because conspiracy claims are
preempted; and (e) if these unrecoverable damages are eliminated, the damages do not exceed
the settlement credit and Pohl cannot recover anything.
3. Alternatively, the judgment should be reversed and remanded for new trial because: (a) the
trial court improperly denied Kassab's timely designation of responsible third parties; (b) Pohl
engaged in bribery and tampered with material witnesses whose testimony impacted the trial; (c)
the trial court improperly denied relevant and material discovery based on privilege,
notwithstanding [*7] Pohl's offensive use; (d) the trial court improperly refused to submit
Kassab's proposed jury question on immunity and privilege; and (e) there is factually insufficient
evidence that Pohl owned a purported trade secret, took reasonable measures to protect that
trade secret, or that Kassab misappropriated a trade secret.
4. The trial court erred by dismissing Kassab's counterclaims for civil barratry because those
claims were not barred by limitations or res judicata and the assignments were valid.
STATEMENT OF THE FACTS
Pohl engages marketers to commit barratry, is sued by them, and fails to protect
client-related information he now claims as his trade secrets .
In 2012, Texas attorney Michael Pohl engaged Scott Walker, Steve Seymour, and Kirk Ladner
(collectively ""the marketers"") and their entity Precision Marketing Group, LLC (""Precision""),
Page 7 of 40
2025 TX APP. CT. BRIEFS LEXIS 119, *7
agreeing ""to pay them a finder's fee for clients they solicited and a percentage of attorney's fees
recovered after the solicited clients' cases settled."" 5 Kassab v. Pohl, 612 S.W.3d 571, 574
(Tex. App.--Houston [1st Dist.] 2020, pet. denied). The marketers contacted Mississippi people
and businesses to determine whether they had claims against British Petroleum [*8] (""BP""),
encouraged them to retain Pohl, and were paid over $ 5 million in ""barratry pass-through
money"" for their services. 6 Id. ""A list of [Pohl's] actual and prospective clients was maintained
by [Precision] for its business dealings with Pohl."" 7 Id.
Precision and the marketers sued Pohl in federal court in October 2014, alleging failure to pay
a percentage of the attorney's fees for the claims obtained from their efforts. 8 Id. Several
months later, the marketers assigned their interests in their firms and all information derived
therefrom, as well as any claims they had against Pohl, to Precision, which was sold to Scott
Favre. 5RR29-31, 89-93; DX25; DX26; DX27. That same month, Pohl's lawyer contacted
counsel for Farve and the marketers, Tina Nicholson, demanding return of ""original contracts""
between Pohl and his clients; but did not claim that the materials were his trade secrets.
6RR153-154, 161; PX72.
When this demand was refused, 3CR2439-2441, Pohl did not sue the marketers for theft of
trade secrets. 6RR117, 215-216. [*9] Pohl filed conversion counterclaims against them, seeking
money, but not the original contracts. 6RR216; DX59. Pohl alleged that he provided ""proprietary
information"" to Precision, but never claimed it was a trade secret. PX82.002. Pohl never asked a
court to order the client contracts or other information returned to him. 6RR120, 216. Instead,
the information was freely exchanged amongst the parties and their lawyers, without a protective
order. 5RR28, 151; 6RR120; 8RR96, 98-99.
When Pohl discovered Precision was disclosing its own marketing lists to Texas lawyers, Pohl
sought discovery of those efforts. PX82.002. Precision opposed disclosure, and Favre testified
that the lists were Precision's own proprietary information and confidential. PX80. Pohl moved to
compel the information, arguing it was discoverable notwithstanding any confidentiality; the court
agreed. PX82.
In April 2017, Pohl settled with the marketers and Favre, paying them more than $ 800,000 in
exchange for mutual releases and return of information that identified Pohl's current or former
clients. DX34; 5RR237-238; 6RR71-72.
Kassab obtains non-protected information related to Pohl's barratry
andnotifies [*10] the victims who retain Kassab topursue civilclaims and grievances
against Pohl .
Lance Kassab is a lawyer of 29 years who after serving as a briefing attorney for the First
Court of Appeals dedicated his practice to representing victims of attorney misconduct. 4RR208-
5 DX72; DX73; DX74; DX75.
6 10CR8502-8503, 8506 (testimony from case runner); 11CR8677-8701, 8706-8713, 8739-8768, 90429072 (testimony from
barratry victims).
7 PX116; DX41.
8 DX64.
Page 8 of 40
2025 TX APP. CT. BRIEFS LEXIS 119, *10
210. In 2015, Kassab began investigating whether Pohl victimized clients through barratry.
4RR215-217, 219; 5RR36-37.
During his investigation, Kassab obtained publicly filed lists, pleadings, and other documents
that identified Pohl's clients and contained evidence of barratry. 4RR220- 221. Before the entry
of a confidentiality order, 9 Kassab received information from Favre and Nicholson. 5RR28, 43,
50-51. That information included depositions, exhibits, and lists identifying clients that Precision
had solicited for Pohl. 5RR99, 149151; PX99; DX49. Kassab also obtained information from
publicly filed documents, such as contracts pertaining to barratry [*11] victims, 3RR2997-3075,
none of which was stamped ""confidential"" or ""trade secret."" 5RR26-27.
In November 2016, Kassab entered a joint venture with Nicholson and attorney Douglas
Montague to pursue claims against Pohl, PX84, and retained Favre's public-adjusting company
to opine on the value of the underlying BP claims that Pohl had untimely rejected. PX1; 4RR70-
71; 5RR38-40.
From 2015 to 2017, Kassab sent State Bar-approved letters to Pohl's former clients, notifying
them that they may have been unlawfully solicited. 5RR36-37; PX122; DX128; DX156.
Hundreds of clients responded and retained Kassab to pursue barratry and negligence claims
against Pohl. PX121. None of the individuals objected to Kassab having their contact
information. 10 5RR46.
Kassab filed four lawsuits against Pohl on behalf of hundreds of clients: two cases involving
claimants from the BP litigation - Brumfield and Gandy - and two cases involving auto-
accident victims illegally solicited by Pohl - Berry [*12] and Cheatham. 5RR49- 50. Kassab
and several of his clients also filed grievances against Pohl. 4RR167-168 171172; PX128. The
Brumfield and Gandy cases were dismissed on limitations. 5RR50; Gandy v. Williamson, 634
S.W.3d 214 (Tex. App.--Houston [1st Dist.] 2021, pet. denied); Brumfield v. Williamson, 634
S.W.3d 170 (Tex. App.--Houston [1st Dist.] 2021, pet. denied). Pohl paid $ 150,000 to settle the
Berry case. 5RR51-52, 228-229. The Cheatham case was dismissed on summary judgment
but reversed on appeal. 5RR53; Cheatham v. Pohl, 690 S.W.3d 322 (Tex. App.--Houston [1st
Dist.] 2022, pet. granted). All the grievances against Pohl were dismissed, primarily on
limitations. 4RR188-195, 198; PX107; PX108; PX109.
Pohl files this retaliatory lawsuit against Kassab to recover costs incurred
defending the barratry claims, and Kassab suffers several adverse rulings .
In August 2018, Pohl filed this retaliation lawsuit against Kassab, Precision, Favre, Nicholson,
and Montague, alleging a conspiracy to ""illegally obtain[], maintain[], and use[] confidential
information and property belonging to Pohl."" 1CR27-37. Pohl alleged that Precision, Favre, and
Nicholson stole Pohl's information and then sold it to Kassab who ""solicited those clients to act
as plaintiffs ... to bring cases against Pohl for alleged barratry and other claims."" 1CR99-261;
9 The court entered a confidentiality order in March 2017, which did not apply to documents previously produced and required
any document subject to the order to be marked ""confidential."" PX95; 8RR25-26, 92-93, 96. Documents provided to Kassab
were not. 5RR26-27.
10 Pohl funded two grievances against Kassab brought by two of Pohl's clients after Pohl sent them letters urging them to sue
Kassab. 6RR109-111; PX131. Both grievances were dismissed. 5RR48; DX134, 137.
Page 9 of 40
2025 TX APP. CT. BRIEFS LEXIS 119, *12
App. Tab 1 [*13] . Pohl sued Favre and Precision for breach of their settlement agreement, and
all defendants for conversion, violations of TUTSA, and conspiracy. 1CR108-110. Pohl sought
attorney's fees he incurred defending against the barratry litigation and grievances. 11CR9530-
9533. Kassab answered, asserting affirmative defenses, and counterclaimed for civil barratry. 11
1CR40-52.
Kassab moved for traditional summary judgment on Pohl's claims, arguing they were barred by
limitations and attorney immunity. 1CR262-335. The trial court denied that motion. 1CR358;
App. Tab 2. Pohl moved for summary judgment on Kassab's barratry counterclaims, arguing
limitations and res judicata, and that the assignments were invalid. 1CR358-405. The trial court
granted that motion. 2CR892; App. Tab 3.
Kassab moved to exclude Pohl from testifying as an expert witness on the value of the
purported trade secrets for failing to comply with disclosure requirements. 2CR964-1005. The
trial court denied that motion. 10CR7844; App. Tab 4.
[*14] Kassab moved to designate responsible third parties (RTPs) who contributed to the loss
of Pohl's purported trade secrets, including Walker, Ladner, Seymour, and others. 2RR909-920.
The trial court denied that motion. 10CR7850; App. Tab 5. Before trial, Pohl nonsuited Favre
and Precision. 10CR8346. Kassab moved to designate them as RTPs. 12CR9562-9571. The
trial court only granted leave to designate Favre and Precision as RTPs, but no others. 12
13CR10611.
Kassab moved for traditional summary judgment on the grounds that Pohl's claims were barred
by immunity and privilege, limitations, the unlawful-acts doctrine, and Pohl's inability to recover
attorney's fees from the barratry grievances and litigation as actual damages. 2CR1140-1744;
3CR1746-2052; 4CR3519-3571. Kassab incorporated Nicholson's summary-judgment motion,
which argued that the information at issue was not a trade secret. 3CR2053-2127. The trial court
denied those motions. 10CR7851; App. Tab 6.
Kassab moved to compel discovery based on the offensive-use doctrine, including: (1)
unredacted invoices and information related to the attorney's fees incurred [*15] by Pohl in the
underlying barratry grievances and litigation; (2) information relevant to Kassab's limitations
defense; and (3) outcome-determinative information over which Pohl claimed privilege.
8RR6079-6962; 9CR6964-7620. The trial court denied that motion. 10CR7978; App. Tab 7.
After the case was transferred from the 189th District Court to the 281st District Court,
10CR8358, Kassab requested reconsideration of the ruling on the offensive-use motion.
10CR8359-8366. Kassab also filed new summary-judgment motions containing additional
evidence to allow the successor judge to rule on dispositive legal issues. 10CR8367-8591;
11CR8593-9554. The trial court denied Kassab's offensive-use and summary-judgment motions.
2RR3, 75.
11 Kassab's clients in the barratry litigation had assigned their claims against Pohl to Kassab before any final judgment on those
claims had been entered. 1CR95, 451-453, 768.
12 Although the trial court stated it would grant leave to designate Walker, Ladner, and Seymour as RTPs, 2RR72-73, it did not
sign the proposed order that was submitted, 13CR10737-10740, and did not accept Kassab's proposed jury question identifying
them as RTPs. 13CR10901.
Page 10 of 40
2025 TX APP. CT. BRIEFS LEXIS 119, *15
The trial court allows Pohl to provide improper opinion testimony and enters
judgment against Kassab for actual damages that included fees for defending against
grievances and exemplary damages without a unanimous verdict .
Before trial, Pohl nonsuited claims against all remaining parties, 10CR7852, 8357, leaving
Kassab as the only defendant.
When Kassab re-urged his motion to exclude Pohl's testimony about purported value of
the [*16] information, 13CR10349-10417, the trial court ultimately permitted Pohl to testify on
the issue. 3RR188-198; 6RR12-23, 42. The trial court also permitted Pohl and his expert to
testify about attorney's fees and expenses Pohl incurred in the underlying barratry proceedings,
despite withholding un-redacted invoices and underlying information based on privilege. 8RR47-
51, 57-58.
The jury answered ""yes"" to Question 1, which asked whether Pohl owned a trade secret in
attorney-client fee contracts or lists identifying his clients. 13CR10924; App. Tab 8. The jury
found that Kassab and Favre, Nicholson, and Montague misappropriated trade secrets, but that
Precision did not. 13CR10925-10926. The jury also found that Pohl's ""wrongful conduct""
contributed to his injury, but did not apportion any fault to Pohl. 13CR10950-10951. Although the
jury found there was clear and convincing evidence that Kassab engaged in willful and malicious
misappropriation, 13CR10942, that finding was not unanimous. 13CR10950.
The jury found damages of $ 1,408,804 in attorney's fees, expenses, and costs that Pohl
incurred in connection with ""lawsuits, appeals and grievances that Kassab filed against
Pohl."" [*17] 13CR10931-10932. The jury also found $ 250,000 for the price that a willing buyer
and a willing seller would have agreed on as a fair price for Kassab's use of the purported trade
secret, and $ 200,000 for the value of development costs that Kassab avoided by allegedly
misappropriating the purported trade secret. 13CR10932. The jury also found Pohl incurred
attorney's fees in connection with this litigation, including appellate fees. 13CR10934. And
despite not answering the predicate liability question for exemplary damages unanimously, the
jury assessed $ 3 million in exemplary damages against Kassab. 13CR10944.
Pohl did not object to any inconsistencies, moved the trial court to accept the verdict, 10RR9,
and then moved to enter judgment. 13CR10953-10960. Before a judgment was signed, Walker
contacted Kassab and confessed that Pohl had promised Walker and Ladner part of any
judgment against Kassab if they would testify in favor of Pohl, which they did. 14CR11112-
11122, 11125-11127. Based on that admission, Kassab moved for a new trial based on witness
tampering and fraud on the court. 14CR11100-11140. The trial court denied that motion.
14CR11287; App. Tab 9. The trial court [*18] then entered final judgment against Kassab,
awarding Pohl $ 1,452,040 in actual damages, $ 1,232,013 in attorney's fees and conditional
appellate fees, and $ 3 million in exemplary damages, plus interest. 14CR11290-11328; App.
Tab 10.
Kassab filed motions for judgment notwithstanding the verdict, 14CR11329- 11370, for new
trial, 14CR11371-11505, and to modify, correct, or reform the judgment. 14CR11506- 11526.
These motions were overruled by operation of law, and Kassab appealed. 14CR11698-11700.
Page 11 of 40
2025 TX APP. CT. BRIEFS LEXIS 119, *18
SUMMARY OF ARGUMENT
Kassab lawfully alerted Pohl's former clients, the courts, and the State Bar to Pohl's unlawful
barratry. In retaliation, Pohl filed this lawsuit, alleging the clients' information - lists of their
identities and attorney-client contracts - were trade secrets owned by Pohl, and seeking to
recover from Kassab fees Pohl incurred defending against claims those very clients filed against
him. The trial court improperly allowed Pohl's lawsuit to proceed to trial even though it was
barred by limitations, privilege, and immunity, and then improperly entered judgment even
though the information was not a trade secret, Pohl did not own the information or keep it secret,
and [*19] there was no evidence that Kassab engaged in misappropriation.
The trial court also refused to submit RTPs, improperly denied Kassab relevant and material
discovery, held Kassab responsible for attorney's fees incurred by Pohl in the barratry litigation
and grievances, held Kassab responsible for damages apportioned to his improperly alleged co-
conspirators, and assessed exemplary damages against Kassab without a unanimous jury
finding on predicate liability. The trial court also improperly dismissed Kassab's barratry
counterclaims that were assigned to him, even though those claims were revived when Pohl
filed this lawsuit.
Judgment should be reversed and rendered in favor of Kassab. Alternatively, the judgment
should be substantially reduced, or the case should be remanded for a new trial. Independently,
the trial court's dismissal of Kassab's counterclaims should be reversed and remanded.
ARGUMENT
1. Judgment for liability should be reversed and a take-nothing judgment entered.
Judgment against Kassab should be reversed and a take-nothing judgment entered, either
because there is no evidence to support essential elements of Pohl's claims or because Kassab
proved his affirmative [*20] defenses as a matter of law.
A. Pohl does not own the disputed materials.
To prove a TUTSA violation, a plaintiff must first demonstrate ownership of a trade secret.
FMC Techs. v. Murphy, 679 S.W.3d 788, 809 (Tex. App.--Houston [1st Dist.] 2023, pet. denied).
An ""owner"" is the entity in which rightful, legal, or equitable title to the trade secret is reposed.
C.P.R.C. §134A.002(3-a). Pohl did not demonstrate ownership over the disputed materials as a
matter of law.
The attorney-client fee contracts are owned by the client, not Pohl. See In re George, 28
S.W.3d 511, 516 (Tex. 2000) (""work product generated by the attorney in representing the client
belongs to the client."") (emphasis added); In re McCann, 422 S.W.3d 701, 704-705 (Tex.
Crim. App. 2013) ("" client owns the contents of his or her file."") (emphasis added). Pohl
Page 12 of 40
2025 TX APP. CT. BRIEFS LEXIS 119, *20
acknowledged this. 13 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 McCann, 422 S.W.3d at [*21] 706 (""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).
Additionally, Pohl does not own the list of the clients' identities and contact information.
8RR10924. Pohl testified that he did not create the list. 5RR243-244. Although Pohl had a client
list prepared, it did not list the client's contact information. PX116; DX41. The marketers owned
the lists and other information that they sold to Precision, which Precision then sold to Favre.
6RR106; PX67, 68, 69. Favre testified that he owned the lists and information he would
eventually provide to Kassab and Montague, from which Montague would use to create the
master list. 5RR34-35; 6RR38-40, 107; DX5; PX79.
Because Pohl does not own the disputed materials, his TUTSA claim fails as a matter of law.
See RMS Software Dev. v. LCS, Inc., No. 01-96-00824-CV, 1998 WL 74245, at *4 (Tex. App.--
Houston [1st Dist.] Feb. 19, 1998, no pet.) (unpublished) (""RMS is not the owner of the trade
secret involved in this lawsuit, thus it has no standing to sue for misappropriation of that
secret.""); Fish v. Tex. Legislative Serv., P'ship, No. [*22] 03-10- 00358-CV, 2012 WL 254613,
at *13 (Tex. App.--Austin Jan. 27, 2012, no pet.) (mem. op.) (affirming dismissal of trade-secret
claim because plaintiff ""uses but does not own the rights to"" information at issue); see also
Governo Law Firm LLC v. CMBG3 Law LLC, No. 1684CV03949-BLS2, 2023 Mass. Super.
LEXIS 11, *64 (Mass. Super. Ct. Feb. 24, 2023) (law firm could not establish damages from
""defendants['] use of materials that belong to their clients"").
B. Regardless of who owns the disputed materials, they are not trade secrets.
For the disputed information to be a trade secret, Pohl was required to show that (1) he had
""taken reasonable measures under the circumstances to keep the information secret,"" and (2)
the information ""derives independent 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."" C.P.R.C.
§134A.002(6)(B). No evidence supports either element.
1. The information is not secret.
Pohl presented no evidence regarding steps he took to keep the subject information secret.
Pohl testified that his ""trade secret"" was the information derived from his contracts that [*23]
allowed Kassab to discover his client base. 6RR28. But Pohl did nothing to keep his client base
secret. Everyone working for Precision, the opposing parties in the underlying case, and the
parties and their attorneys in the Mississippi litigation knew who his clients were. ""[O]nce a trade
13 6RR28, 108-110 (clients owned their files, including personal information; Pohl informed clients that "" their files were taken""
and referred to information as "" a client's private files."") (emphasis added); 6RR129 (clients own their information); see
5RR204 (if client asked for their file, Pohl had obligation to return it).
Page 13 of 40
2025 TX APP. CT. BRIEFS LEXIS 119, *23
secret is made public all ownership is lost."" INEOS Grp. Ltd. v. Chevron Phillips, 312 S.W.3d
843, 852 (Tex. App.--Houston [1st Dist.] 2009, no pet.).
There is no evidence that Pohl protected the information as a trade secret. Before filing this
suit, neither Pohl nor his staff considered his client base his trade secret. Pohl's office manager
of more than 30 years testified that Pohl never indicated that the information was his trade
secret. 7RR114, 158. Therefore, she did not consider the attorney-client contracts to be Pohl's
trade secret, nor did she attempt to secure them in any way. 7RR127-128. Rather, she kept the
client files at her home in two unlocked filing cabinets because Pohl never gave her instructions
on how to secure those files. 7RR157.
Pohl provided marketing materials to Precision to distribute that publicly disclosed the clients
he represented and contained copies of his fee agreements. PX119.004-005; 5RR207-208.
Those blank fee agreements [*24] were not marked trade secret or confidential. PX119.007-
016. In fact, the agreements indicated that because Pohl represented multiple clients, ""public
information"" about the clients would be shared. PX119.010.
Likewise, no contract or list had any indication it was a trade secret. 5RR27; 8RR96, 98-99. No
client list was marked confidential, let alone trade secret. PX116; DX41; DX49. And the two Pohl
contracts in evidence - pertaining to Lacy Reese and Mark Cheatham - were not marked
confidential or trade secret and were publicly filed in the Mississippi litigation. PX143; DX99;
5RR126-129.
Furthermore, none of Pohl's contracts with the marketers required them to keep any
information about Pohl's client base secret or even confidential. 6RR114; PX28; PX29; PX30;
PX32; PX33; PX34; PX42. Although Pohl claimed to have an oral agreement with the marketers
to do so, 5RR97-98; 6RR114, the written agreements stated they were the ""entire binding
contract between both parties,"" there were ""no other agreements or contracts between them,""
and the agreement ""may not be modified"" except by written agreement. PX28.002.
After Precision acquired clients for Pohl, those clients were sent to [*25] Pohl's co counsel's
office, so anyone there knew Pohl's client base without any agreement to keep it secret.
5RR181. Pohl submitted his clients' claims to BP with identifying information, including
""[f]inancial records, tax returns, Social Security numbers, e-mails, cell phone numbers,
addresses,"" among other things. 5RR202-203. Pohl's office manager set up the BP claim portal
and gave everyone passwords to access the claims being filed and any related claim
information. 7RR160-161. Likewise, Pohl submitted auto-accident clients to General Motors
(""GM"") through a settlement program. 5RR224-226. There is no evidence that either BP or GM
or their lawyers had any agreement with Pohl to keep disclosed client information secret. Other
auto-accident cases were involved in public litigation, and their contracts with Pohl were publicly
filed when a dispute arose between Pohl and the marketers, before Favre had provided that
same information to Kassab. 5RR43-44, 53-54, 126-129; DX99.
When the dispute between Pohl and the marketers arose, Pohl did not treat the disputed
information as his trade secret. Pohl was only concerned about the marketers using his name in
marketing material without [*26] his permission. PX44; PX45; PX59; PX60; PX62. After Pohl
was sued by the marketers, DX60, he demanded they return the contracts but again made no
Page 14 of 40
2025 TX APP. CT. BRIEFS LEXIS 119, *26
mention that the information was his trade secret. 6RR163; PX72. Rather, Pohl claimed to need
the information ""to address client matters relating to the deadline"" for filing claims in the BP
litigation. PX72.004. The marketers refused to return the information, 3CR2439-2441, and
transferred it from Pohl's Mississippi office to their unsecured garage. 6RR69-70. Thereafter, the
marketers sold Precision and its information to Favre. 6RR120; PX67; PX68; PX69; PX79.
When that occurred, Pohl claimed that the marketers and Favre had misappropriated his
""proprietary information"" - but not trade-secrets - for ""their own use in breach of their express
contracts."" PX82.002-003. But Pohl did not sue the marketers for theft of trade secrets or seek
judicial relief against them or Favre to order the information returned. 6RR114-115, 117, 120,
216, 226; DX59. Although Pohl's trade-secret expert testified that obtaining a restraining order or
injunction to prevent disclosure of the information is a ""key event"" in trade-secret cases, he
acknowledged that [*27] Pohl never sought that relief. 8RR79-79, 85. Instead, Pohl allowed
unfettered access to the information to his adversaries, whom he described as ""not credible,""
untrustworthy, and a convicted felon. 6RR118-119, 131-132.
The careless exchange of the disputed information in the Mississippi litigation also negates
secrecy. Most notably, Pohl's own counsel caused the master list identifying Pohl's client base
to be publicly published on PACER in October 2017. 6RR123-124. Before being provided to
Kassab, the parties in the Mississippi litigation, including Pohl and other defendants, freely
produced information identifying Pohl's client base, including lists of Pohl clients with contact
information, without a protective order or a confidentiality agreement. 14 5RR26-28, 43-45, 50-
51, 149-151; 6RR120; 8RR96-99; DX41-47, 49. In fact, Pohl opposed Precision's efforts to keep
the marketing lists secret, arguing that the information is ""relevant and discoverable."" 6RR166-
167; PX82.
The sole contrary ""evidence"" is Pohl's testimony that he allegedly took steps ""to ensure the
confidentiality of the people with whom [he] had an attorney-client relationship"" by oral
""confidentiality [*28] agreements"" with the marketers and maintaining the information in a
building with limited access, in filing cabinets that may not have been locked. 5RR197-198. But
that conclusory, self-serving testimony fails to negate any of the preceding specific evidence of
the numerous times that Pohl failed to treat the information as a trade secret. See Windrum v.
Kareh, 581 S.W.3d 761, 770 (Tex. 2019) (""When the evidence presented to the jury is
conclusory, it is considered no evidence."")
Regardless, Pohl's testimony about efforts to maintain attorney-client confidentiality is not
relevant. Pohl improperly conflated attorney-client confidentiality with trade secrecy. See
5RR197-198 (disputed materials were protected by ""attorneyclient privilege"" as ""attorney-client
contracts with the client submitting lots of personal data.""); 5RR203 (""all the information
contained in the files and gathered from the clients was privileged information and had to be
protected.""); 5RR205 (information is ""personal to the families and their businesses"" and ""its
attorney-client privilege.""); 6RR29-30 (materials were ""privileged"" and ""private"" because of
""attorney-client confidential information in them""); 6RR36 (referring to information as [*29]
14 Supra n. 9.
Page 15 of 40
2025 TX APP. CT. BRIEFS LEXIS 119, *29
""attorney-client privileged files""); 6RR131 (""the attorney-client privileged files is the stuff, and it
went to Mr. Kassab."").
However, this Court has held that ""confidential information is not necessarily a trade secret.""
Reynolds v. Sanchez Oil & Gas Corp., No. 01-18-00940-CV, 2023 WL 8262764, at *18 (Tex.
App.--Houston [1st Dist.] Nov. 30, 2023, no pet.) (mem. op.). And keeping information
confidential pursuant to ethical rules governing lawyers is not the same as taking reasonable
measures to protect information as a trade secret. 15 See Traverse Therapy Servs., PLLC v.
Sadler-Bridges Wellness Grp., PLLC, No. C23-1239, 2024 WL 1701970, at *2 (W.D. Wash.
2024) (rejecting plaintiff's effort to ""conflate[] the mere existence of a patient list that it is legally
required to keep confidential per [HIPPA] with a trade secret,"" stating ""[t]he information was
restricted, but ... pursuant to HIPAA, not to keep trade secret information confidential.""). At best,
""[t]he efforts made by [Pohl] to maintain secrecy of the alleged trade secrets appear to be no
more than the usual precautions taken by a law firm to ensure clients' files remain [*30]
confidential."" Early, Ludwick & Sweeney, LLC v. Steele, No. CV 980409063S, 1998 WL
516156, at *3 (Conn. Super. Ct. 1998) (rejecting law firm's claim of trade-secret protection over
client-related materials).
This Court also has held that ""[v]igilance in guarding the trade secret is required because, once
the information is publicly revealed through the owner's lack of vigilance, it is no longer a trade
secret; the element of secrecy is gone."" INEOS Grp., 312 S.W.3d at 852. Pohl's client base
was public information that he was not vigilant in keeping secret; he freely disclosed it to
adversaries without any promise of secrecy. ""The unrestricted disclosure of trade-secret
information to third parties, outside the context of a confidential relationship, destroys the trade-
secret status of the information."" Id.; Shufood LLC v. Rong Liu, No. 01-21-00463-CV, 2024
WL 4628402, at *18 (Tex. App.-- Houston [1st Dist.] Oct. 31, 2024, no pet.) (mem. op.)
(information not ""labeled or identified as confidential"" and disclosed to ""members or employees""
of restaurant without requirement ""to sign a confidentiality agreement"" was not trade secret);
Univ. of Hous. Sys. v. Jim Olive Photography, 580 S.W.3d 360, 376 (Tex. App.--Houston [1st
Dist.] 2019), aff'd, 624 S.W.3d 764 (Tex. 2021) (disclosure of purported trade secret ""results in
a loss of the property interest and the economic value [*31] of the competitive advantage
inherent in the trade secret.""). 16
As a matter of law, the contracts and client lists at issue are not privileged or confidential. See
Simpson v. Tennant, 871 S.W.2d 301, 309 (Tex. App.--Houston [14th Dist.] 1994, no writ) (""the
identity of an attorney's client is generally not privileged."") Landry v. Burge, No. 05-99-01217-
CV, 2000 WL 1456471, at *7 (Tex. App.--Dallas Oct. 2, 2000, no pet.) (unpublished) (identity of
client is not ""confidential information"" under disciplinary rule because opposing party ""had a right
to know the identity"" of client); Jim Walter Homes, Inc. v. Foster, 593 S.W.2d 749, 752 (Tex.
15 Pohl's own expert acknowledged this, testifying that although disciplinary rules require a lawyer to maintain confidentiality of
client-related information, that does not make it a trade secret. 8RR120- 121.
16 See also Sci. Mach. & Welding, Inc. v. Rose, No. 03-20-00564-CV, 2022 WL 850409, at *2 (Tex. App.-- Austin Mar. 23, 2022,
no pet. h.) (mem. op.) (no trade secret when, ""despite having the opportunity under a protective order to designate the drawings
as 'confidential' during this litigation, [party] failed to do so and produced them without such designation.""); Baxter & Assocs.,
L.L.C. v. D&D Elevators, Inc., No. 05-16-00330-CV, 2017 WL 604043, at *2 (Tex. App.--Dallas Feb. 15, 2017, no pet.) (mem.
op.) (information not trade secret when ""the 'customer lists' in question are not labeled as confidential or proprietary"").
Page 16 of 40
2025 TX APP. CT. BRIEFS LEXIS 119, *31
Civ. App.--Eastland 1979, no writ) (""fee arrangement is not privileged.""). But even if the
information is confidential, there is legally insufficient evidence that Pohl took reasonable
measures to keep it secret.
2. The information did not derive independent economic value because it did not provide
Pohl with [*32] a competitive advantage.
Pohl also was required to prove that the contracts or compilation of client contact information
provided him with a ""competitive advantage"" and had ""value independent of its component
parts."" FMC Techs., 679 S.W.3d at 814. Pohl presented no evidence of that. To the contrary,
Pohl agreed he could not profit from the information. 6RR36-37 (""I didn't have the legal right to
sell my attorney-client privileged files to anybody.""). Pohl is correct. As a matter of law, Pohl
cannot have a ""competitive advantage"" by using the client-related information to the exclusion of
the potential, actual, and rejected clients. See ERI Consulting Eng'rs, Inc. v. Swinnea, 318
S.W.3d 867, 872 (Tex. 2010) (""if the fiduciary ... acquires any interest adverse to his principal,
without a full disclosure, it is a betrayal of his trust and a breach of confidence, and he must
account to his principal for all he has received.""); T.D.R.P.C. 1.05(b)(4) (lawyer may not use
""privileged information of a client for the advantage of the lawyer or of a third person, unless the
client consents after consultation.""); id. 1.08(f) (prohibiting lawyer from ""acquir[ing] a proprietary
interest in the cause of action or subject [*33] matter of litigation the lawyer is conducting for a
client"").
Pohl's only ""advantage"" was to keep the identities of unlawfully solicited individuals from
lawyers like Kassab who could blow the whistle on Pohl by informing those individuals and the
State Bar about Pohl's unlawful solicitation. 5RR203-205 (it ""was distressing"" to Pohl when he
learned client files were going ""to be held as evidence"" for future barratry lawsuits against him).
That ""advantage"" is not only against public policy that favors disclosure of criminal conduct, 17
but is insufficient to qualify as independent economic value under TUTSA. See FMC Techs.,
679 S.W.3d at 814. Because Pohl could not and would not have sold the list identifying his
clients, 6RR37, the list provided Pohl with no economic advantage and is not a trade secret.
C. There was no misappropriation as a matter of law.
To be liable for misappropriation of a trade secret, Kassab must ""know[] or ha[ve] reason 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."" C.P.R.C. §§134A.002(3)(A),
(B)(ii)(a). There is no evidence of either requirement.
17 ""[P]ublic 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 and the affected individuals of Pohl's
misconduct under the rules of ethics. See T.D.R.P.C. 8.03(a) (""a lawyer having knowledge that another lawyer has committed a
violation of applicable rules of professional conduct that raises a substantial question as to that lawyer's honesty, trustworthiness
or fitness as a lawyer in other respects, 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.""). [*34] 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."").
Page 17 of 40
2025 TX APP. CT. BRIEFS LEXIS 119, *34
Pohl did not allege that Kassab committed direct misappropriation. Rather, Pohl alleged that
Favre and Precision illegally misappropriated trade secrets from him, and that Kassab
subsequently committed indirect misappropriation by acquiring the information from Favre and
Precision. [*35] 18 Precision was designated as an RTP and defined in the charge to include the
marketers before May 12, 2015, and Favre thereafter. 13CR10923. When the jury was asked
whether Precision misappropriated trade secrets from Pohl, it found that Precision did not.
13CR10926. The jury answered ""0"" when assigning proportional responsibility to Precision.
13CR10928.
There is no evidence that Kassab engaged in misappropriation. If Precision and its former
owners did not engage [*36] in misappropriation by wrongfully acquiring the information and
then selling it to Favre - as the jury found - then Favre could not have acquired the information
by improper means. In other words, the jury's failure to find that Precision misappropriated
anything precludes derivative liability against Kassab for indirect misappropriation.
Even if liability against Kassab is not precluded by the jury's finding of no misappropriation by
Precision, there is no evidence that Kassab knew the information had been acquired by
improper means. The term ""improper means"" ""includes bribery, misrepresentation, breach or
inducement of a breach of a duty to maintain secrecy, to limit use, or to prohibit discovery of a
trade secret, or espionage through electronic or other means."" C.P.R.C. §134A.002(2). All other
means of obtaining the information are considered proper. Id. §134A.002(4).
The unrebutted evidence was that the marketers lawfully sold their interests and marketing
information to Precision, that Precision lawfully sold its assets (including its files) to Favre, and
the marketers certified in purchase documents that the information at issue was lawfully owned
by Precision. 5RR26-27; [*37] PX67; PX68; PX69; PX79; DX42; DX49. That information
included ""information gathered in the course of its business"" like ""contact information"" or
""information provided to or received from customers and clients."" 5RR30-31; DX25; DX27.
Kassab testified without contradiction that he relied on these agreements and sworn testimony
from Favre that the information belonged to Precision when accepting the information and using
it to notify the clients of Pohl's unlawful conduct. 5RR31-37.
Accordingly, there was no evidence that Kassab knew or had reason to believe that the
information was a trade secret owned by Pohl as opposed to information owned by Precision or
the clients. See Tex. Disposal Sys. v. Alamo Advisors, LP, No. 07- 23-00347-CV, 2024 WL
3334654, at *5 (Tex. App.--Amarillo July 8, 2024, pet. filed) (mem. op.) (no evidence of
misappropriation when ""it was reasonable for [defendant] to assume"" that manager's
""possession of confidential information was authorized.""). Even if Kassab knew that the
information was confidential client information, that does not establish that Kassab knew the
information lawfully obtained by Precision was a trade secret belonging to Pohl. See id. (""mere
18 1CR99-112, P21 (""Favre and Precision illegally misappropriated Pohl's proprietary and confidential information and
property ...which included information about and/or communications with as many as 10,000 or more of Pohl's
clients/prospective clients."") (emphasis added); P41 (""Favre, Precision, and Nicholson willfully and maliciously
misappropriated Pohl's trade secrets by disclosing them via sale to Kassab and Montague ( who purchased the trade
secret information knowing that it had been stolen) without the express or complied consent of Pohl."") (emphasis added);
P42 (""All Defendants willfully and maliciously misappropriated Pohl's trade secrets by using them without the express or implied
consent of Pohl."").
Page 18 of 40
2025 TX APP. CT. BRIEFS LEXIS 119, *37
fact"" that manager signed non-disclosure agreement would ""not place [*38] [defendant] on any
obvious notice the information it received was improperly acquired."").
There is certainly no evidence of willful misappropriation, which is ""intentional misappropriation
resulting from the conscious disregard of the rights of the owner of the trade secret."" C.P.R.C.
§134A.002(7). To find sufficient evidence supporting the jury's finding, the Court must ""analyze
the evidence supporting the malice of each defendant ... instead of group[ing] them together.""
Horizon Health Corp. v. Acadia Healthcare Co., 520 S.W.3d 848, 867 (Tex. 2017). Further,
""evidence of the tort itself, with little more,"" is insufficient to support a jury's finding of malice in
the theft of trade secrets. See id.
The only evidence Pohl offered of Kassab's alleged malice 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 matter of public interest); and (2) testimony that lawyer files are
generally confidential. But this does not prove Kassab knew when he received the information
that the information was owned by Pohl (as opposed to Precision or the clients) as his trade
secret. See Tex. Disposal, 2024 WL 3334654, at *5 (""The plain language [*39] of [TUTSA]
indicates the relevant knowledge is at the time of the 'acquisition,' not after the party receives
notice at a later date.""). No evidence supported the jury's malice finding because, as
demonstrated above, the uncontroverted evidence established that Kassab believed the
information was never owned by Pohl and was not secret.
Furthermore, the Texas Supreme Court has stated that ""legally justified conduct"" is ""simply not
probative to either establish a violation or malice."" Safeshred, Inc. v. Martinez, 365 S.W.3d
655, 665 (Tex. 2012). The evidence demonstrated that Kassab had an obligation to notify Pohl's
former 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 against Pohl. 4RR140,
167-168, 171-172, 175-176, 221-222; 5RR32-33, 36-37. There was no evidence Kassab had
any animosity or malice towards Pohl. 5RR46-47. Instead, Kassab was trying to protect the
rights of the individuals Kassab believed Pohl had wronged and comply with his ethical
obligation to report misconduct to authorities and the public. 5RR47.
The evidence is further legally insufficient because Pohl ""adduced no evidence that
[Kassab] [*40] 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). ""[Kassab's alleged] intentional
misappropriation and misuse of [Pohl's] trade secrets is not legally sufficient evidence of
malice."" Id. ""If it were, exemplary damages would be recoverable as a matter of course in
every misappropriation case, rather than the exceptional case involving egregious misconduct
and injury."" Id.
Because the record lacks any evidence that Kassab knew the information provided to him was
a trade secret belonging to Pohl, the evidence is legally insufficient to support the jury's findings
of ordinary and willful misappropriation.
D. The claims are barred by limitations.
Page 19 of 40
2025 TX APP. CT. BRIEFS LEXIS 119, *40
Pohl's TUTSA claim fails because it is time-barred. ""A person must bring suit for
misappropriation of trade secrets not later than three years after the misappropriation is
discovered or by the exercise of reasonable diligence should have been discovered."" C.P.R.C.
§16.010(a). ""A misappropriation of trade secrets that continues over time is a single cause of
action and the limitations period described by Subsection (a) begins running [*41] without
regard to whether the misappropriation is a single or continuing act."" Id. §16.010(b)
(emphasis added). Thus, 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).
""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). ""Use of the
trade secret means commercial use by which the offending party seeks to profit from the use of
the secret."" Id. That includes ""any exploitation of the trade secret that is likely to result in injury
to the trade secret owner or enrichment to"" the non-trade secret owner. Id.
Pohl alleged that Precision ""stole physical copies of certain of the information, stole Pohl's
computers, and misappropriated electronic data,"" and then ""secretly sold Pohl's stolen
confidential information and property to Kassab."" 1CR104. In the summary-judgment record,
Pohl testified that this theft of trade secrets occurred in 2014 when Kassab ""and his crew""
allegedly ""robbed"" his office and ""stole his files."" 11CR9511-9519. At trial, Pohl admitted that this
testimony was only ""suspicion."" 6RR68-69. Pohl confirmed [*42] that this suspected theft
occurred in June 2014, and that he knew that the materials were misappropriated on that date.
5RR198-200; 6RR67-69, 114-115, 126-127. Pohl understood that the files were going to be
used ""as evidence in a suit that was going to be brought against [him] shortly."" 5RR203-204;
6RR26. That use occurred in October 2014 when Precision and the marketers used the
allegedly misappropriated information for file suit against Pohl. 3CR2227-2265; 6RR94-96, 104,
117; DX61; DX64. That is when Pohl's alleged TUTSA cause of action accrued for purposes of
limitations, regardless of Kassab's involvement. See Sw. Energy, 491 S.W.3d at 721; C.P.R.C.
§16.010(b).
Even if the cause of action did not accrue in 2014, it unquestionably accrued in May 2015
when the marketers sold the information to Precision and Precision was sold to Favre. 6RR69-
70, 224; PX67, 68; DX25. That sale prompted Pohl to request that the information be returned to
him. PX72; 6RR161-165. But Precision, the marketers, and Nicholson, an alleged co-
conspirator, all refused. PX72; 6RR161-165; 3CR2439-2441. Therefore, Pohl's TUTSA claim
accrued no later than May 2015 when Precision's owners enriched themselves [*43] by selling
the information to Favre contrary to Pohl's demand to return it. See Sw. Energy, 491 S.W.3d at
721.
Although Pohl filed conversion counterclaims against Precision and its owners in October
2015, he did not sue them (or Kassab) for theft of trade secrets. 6RR117- 118; DX59. Pohl
waited until August 2018 to file this retaliatory lawsuit alleging Kassab, Favre, and Precision
""illegally obtained, maintained, and used trade secrets and other confidential information and
property belonging to Pohl."" 1CR27. This was more than three years after Pohl knew the
marketers had sold the information to Favre in May 2015.
Page 20 of 40
2025 TX APP. CT. BRIEFS LEXIS 119, *43
Pohl did not dispute these facts. Instead, Pohl argued that he could not have discovered the
misappropriation ""by Kassab"" until August 2017, when he obtained Favre's consulting
agreement with Kassab, which Pohl claimed evidenced a sale of the information to Kassab.
9RR118; PX100. The jury agreed. 14CR11306. But as a matter of law, the transfer or use of
already-misappropriated trade secrets by a purported co-conspirator does not restart the
limitations clock. See C.P.R.C. §16.010(a); Agar Corp., Inc. v. Electro Circuits Int'l, LLC, 580
S.W.3d 136, 145 (Tex. 2019) (conspiracy claim for misappropriation [*44] of trade secrets
accrues against all co-conspirators ""when the underlying tort accrues.""). In other words, ""[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 act."" Agar Corp., 580
S.W.3d at 145. Therefore, it is irrelevant when Pohl discovered his purported trade secrets had
been used ""by Kassab"" as opposed to other alleged co-conspirators. See id. (conspiracy claim
against co-conspirator time-barred because it accrued when trade secrets were initially used by
other co-conspirators, not when alleged co-conspirator later purchased information).
""Accrual of limitations is a question of law for the court."" Schneider Nat. Carriers, Inc. v.
Bates, 147 S.W.3d 264, 274-75 (Tex. 2004). Because the evidence conclusively establishes that
Pohl knew or reasonably should have known that his purported trade secrets were first used by
Kassab's alleged co-conspirators more than three years before he sued Kassab, Pohl's TUTSA
claims are barred by limitations. Therefore, the trial court erred by denying Kassab's motions on
limitations.
E. The claims are barred by privilege and immunity.
Even if client information could be [*45] considered Pohl's trade secrets and Pohl's claims
were not time-barred, Kassab was privileged to use that information to make disclosure to the
clients, to the Texas courts through the barratry litigation, and to the State Bar through the
grievances. Pohl's claims against Kassab were barred by four doctrines raised by Kassab and
improperly rejected by the trial court.
1. Pohl's claims are barred by privilege.
""[T]rade secret law permits disclosures relevant to public health or safety, commission of
crime or tort, or other matters of substantial public concern."" Bartnicki v. Vopper, 532 U.S.
514, 539 (2001) (emphasis added) (citing RESTATEMENT (THIRD) OF UNFAIR
COMPETITION §40, cmt. c (1995)); see also RESTATEMENT OF THE LAW, TORTS §757,
cmt. d (""A privilege to disclose may also be given by the law, independently of the other's
consent, in order to promote some public interest.""); T.R.E. 507(a) (allowing discovery of trade
secret if ""nondisclosure will tend to conceal fraud or otherwise work injustice."").
The uncontroverted evidence established that Kassab used the purported trade-secret
information - the client's identities and contact information - to inform those barratry victims and
report [*46] Pohl's misconduct to the State Bar. 4RR140, 167-168, 171-172, 175-176, 221-222;
5RR32-33, 36-37; PX90; PX91; PX92; PX93; PX122. Pohl's complaint is that Kassab sent
""letters to the clients where [Kassab] attached their actual contracts to his solicitation letters.""
6RR132. Those letters informed the clients that Pohl ""may have violated Texas law"" because
the contracts attached to the letters may have been procured by barratry. PX91; PX92; PX93;
Page 21 of 40
2025 TX APP. CT. BRIEFS LEXIS 119, *46
PX122. Kassab was privileged to disclose the information because ""there simply cannot be any
trade secret about ongoing illegality."" Alderson v. United States, 718 F. Supp. 2d 1186, 1200
(C.D. Cal. 2010), aff'd, 686 F.3d 791 (9th Cir. 2012).
The jury found that Pohl engaged in wrongful conduct, 19 and Kassab's disclosure of that
wrongful conduct to Pohl's former clients, the courts, and the State Bar falls within these
privilege doctrines. See Bartnicki, 532 U.S. at 539; IBP, Inc. v. Klumpe, 101 S.W.3d 461, 475
(Tex. App.--Amarillo 2001, pet. denied) (disclosure of trade secret by lawyer in furtherance of
lawsuit ""was absolutely privileged""). Texas public policy promoting disclosure of criminal conduct
supports [*47] applying privilege here. See Goodyear Tire & Rubber Co., Hous. Chem. Plant
v. Sanford, 540 S.W.2d 478, 484 (Tex. Civ. App.-- Houston [14th Dist.] 1976, no writ)
(discussing public policy ""to encourage the disclosure of criminal activity"").
2. Pohl's claims are barred by absolute immunity.
Pohl's claims are also barred because ""[n]o lawsuit may be instituted against any Complainant
or witness predicated upon the filing of a Grievance or participation in the attorney disciplinary
and disability system."" T.R.D.P. 17.09. ""The immunity is absolute and unqualified and extends to
all actions at law or in equity."" Id. ""[It] applies even if the underlying alleged conduct is illegal,
improper, or malicious."" Moreno v. Novoa, 676 S.W.3d 748, 751 (Tex. App.--El Paso 2023, no
pet.).
Pohl argued that this absolute immunity does not apply because Kassab's use of client
information to contact Pohl's clients ""pre-dated"" any grievance proceeding. 14CR11576. But
Pohl testified that Kassab used the purported information to initiate grievances against him.
6RR52-55, 60. Pohl asked the jury to compensate him for the attorney's fees he incurred
defending against those grievances, 13CR10931-10932; 8RR55, 109-110. And the jury
concluded that the attorney's fees incurred by Pohl in the grievance proceedings were the
""proximate [*48] cause"" of the alleged misappropriation. 13CR10931-10932. In other words, the
claimed damages are based on Kassab's ""participation in the attorney disciplinary and disability
system,"" and therefore are subject to absolute immunity. See Crampton v. Farris, 596 S.W.3d
267, 274-275 (Tex. App.--Houston [1st Dist.] 2019, no pet.) (applying immunity when actions are
""intimately associated"" with the grievance proceeding, regardless of actions taken ""maliciously,
in bad faith, or with ulterior motives."").
3. Pohl's claims are barred by attorney immunity.
Under the doctrine of attorney immunity, ""an attorney does not have a right of recovery,
under any cause of action, against another attorney arising from conduct the second attorney
engaged in as part of the discharge of his duties in representing a party."" Bradt v. West, 892
S.W.2d 56, 72 (Tex. App.--Houston [1st Dist.] 1992, writ denied) (emphasis added). ""[A]n
attorney is immune from liability to nonclients for conduct within the scope of his representation
of his clients."" Youngkin v. Hines, 546 S.W.3d 675, 681 (Tex. 2018). The inquiry ""focuses on
the kind of conduct at issue rather than the alleged wrongfulness of said conduct."" Id. Even
19 13CR10927 (answering ""yes"" to whether ""the wrongful conduct of Pohl, if any, contributed to the injury, if any, found by the
jury?"").
Page 22 of 40
2025 TX APP. CT. BRIEFS LEXIS 119, *48
""criminal conduct is not categorically excepted from the protections of attorney civil immunity
when the conduct alleged is connected with representing a client [*49] in litigation."" Bethel v.
Quilling, Selander, Lownds, Winslett & Moser, P.C., 595 S.W.3d 651, 657 (Tex. 2020).
Kassab's conduct that forms the basis of Pohl's claims falls squarely within the confines of
attorney immunity, regardless of whether it is alleged to have violated TUTSA because that
statute does not expressly repudiate the defense. See Taylor v. Tolbert, 644 S.W.3d 637, 642
(Tex. 2022). Pohl sued Kassab for allegedly using ""confidential information ... to contact and
solicit Pohl's clients/prospective clients"" to ""bring cases against Pohl for alleged barratry and
other claims."" 1CR106-107. Pohl admitted that investigating claims and acquiring clients to file
lawsuits is conduct that involves the skill, training, and experience of a lawyer, 6RR62-63, thus
falling within attorney immunity. See Youngkin, 546 S.W.3d at 682 (""filing lawsuits and
pleadings"" fall within attorney immunity).
That Kassab acquired the information before litigation was filed is immaterial because ""attorney
immunity applies to claims based on conduct outside the litigation context[.]"" Haynes & Boone,
LLP v. NFTD, LLC, 631 S.W.3d 65, 78-79, 81 (Tex. 2021); Cantey Hanger, LLP v. Byrd, 467
S.W.3d 477, 485 (Tex. 2015) (attorney was immune from conduct that occurred after litigation
had ended). In other words, Pohl's characterization [*50] of Kassab's activities as a business
transaction that occurred before litigation does not negate attorney immunity because Kassab
engaged in the conduct as part of his ultimate provision of legal services to his clients. See
Haynes & Boone, 631 S.W.3d at 78-79, 81 (applying immunity to lawyer's conduct committed as
part of business transaction). This Court already has opined that the conduct Pohl complains
about all "" arose out of a commercial transaction involving the type of legal services
Kassab provides."" Kassab, 612 S.W.3d at 578 (emphasis added).
The jury found that Kassab did not ""acquire or use 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[.]"" 13CR10930 (emphasis
added). But no evidence supports that answer.
The evidence demonstrated that in November 2016, Kassab entered into a joint venture
agreement to investigate and pursue barratry claims against Pohl. PX84. The uncontroverted
evidence was that Kassab obtained his first client at least by February 2017. PX121A, at
121.0263. Kassab continued to acquire clients and then brought [*51] four barratry lawsuits
against Pohl on behalf of more than 400 of Pohl's former, potential, or rejected clients. PX121A;
5RR36-37, 49-50.
If the attorney-client contracts and identities of Pohl's clients are Pohl's trade secrets, the
evidence conclusively established that Kassab ""used"" that information while in an attorney-client
relationship because filing suit against Pohl was the only way Kassab could commercially profit
from the purported trade secrets. See Sw. Energy, 491 S.W.3d at 722 (""use"" means
""commercial use"" that ""profit[s] from the use of the secret.""). Kassab's mere possession of or
disclosure of the information to the client, is not a commercial use because it was not yet
""exploited for its independent economic value."" Tex. Disposal Sys., 2024 WL 3334656, at *5.
Page 23 of 40
2025 TX APP. CT. BRIEFS LEXIS 119, *51
Because there was no commercial use until Kassab was in an attorney-client relationship,
attorney immunity applied. 20 [*52]
Because Kassab conclusively established attorney immunity, and there is no evidence to
support the jury's finding that Kassab did not use the information in an attorney-client
relationship, the jury's answer should be disregarded and Pohl's claims dismissed. See Taylor,
644 S.W.3d at 648 (attorney not civilly liable for ""criminal in nature"" conduct committed while
discharging duties to client); In re Canfora, No. 01-21- 00128-CV, 2021 WL 4095580, at *8
(Tex. App.--Houston [1st Dist.] Sep. 9, 2021, no pet.) (mem. op.) (attorney immunity applied to
claim that Kassab tortiously interfered with attorney's contract); Highland Capital Mgmt., LP v.
Looper Reed & McGraw, P.C., No. 05-15-00055-CV, 2016 WL 164528, at *4-5 (Tex. App.--
Dallas Jan. 14, 2016, pet. denied) (mem. op.) (immunity applied to claim attorney engaged in
""malicious conduct with respect to its illegal acquisition, retention, use, and threatened
disclosure of [plaintiff's] proprietary and confidential information"" that ""it knew to be stolen and
proprietary in furtherance of its scheme to extort ... [plaintiff]."").
4. Pohl's claims are barred by the judicial-proceedings privilege.
""The judicial-proceedings privilege is an absolute privilege that covers any statement made by
... counsel ..., and attaches to all aspects of the proceedings, including statements made in open
court, pre-trial [*53] hearings, depositions, affidavits and any of the pleadings or other papers in
the case."" Landry's, Inc. v. Animal Legal Def. Fund, 631 S.W.3d 40, 46 (Tex. 2021) (internal
quotations omitted). It attaches even to ""communications preliminary to a proposed judicial
proceeding"" if ""the communication has some relation to a proceeding that is actually
contemplated in good faith and under serious consideration by the witness or a possible party to
the proceeding."" Id. at 48-49 (emphasis added). "" Even in the pre-suit context, ... the
privilege protects communications that are themselves preparatory to the lawsuit."" Id.
(emphasis added). The privilege protects all communications that are "" necessary to set the
judicial machinery in motion."" Id. at 50 (emphasis added).
""Although most cases addressing the judicial communication privilege involve claims of libel or
slander, Texas courts have consistently applied the privilege to claims arising out of
communications made in the course of judicial proceedings, regardless of the label
placed on the claim."" Laub v. Pesikoff, 979 S.W.2d 686, 690 (Tex. App.--Houston [1st Dist.]
1998, pet. denied) (emphasis added). Thus, the privilege applies to any cause of action "" when
the essence of a claim is damages that flow from communications [*54] made in the
course of a judicial proceeding."" Id. at 691 (emphasis added).
Here, Pohl's alleged damages indisputably ""flow from"" communications that Kassab made in
the barratry litigation and grievance proceedings. Pohl alleged that Kassab ""solicited ...
clients/prospective clients to act as plaintiffs ... to bring cases against Pohl for alleged barratry
and other claims."" 1CR107. Pohl testified to these allegations, stating Kassab used the
purported trade-secret information to acquire clients and file barratry proceedings against Pohl,
20 At minimum, attorney immunity should be applied to bar Pohl's damages for fees incurred in the barratry litigation and
grievances. As discussed below, those damages indisputably occurred as a result of Kassab bringing the claims and grievances
on behalf of his clients, while in an attorney-client relationship.
Page 24 of 40
2025 TX APP. CT. BRIEFS LEXIS 119, *54
6RR39-40, 55, 132, which allegedly damaged his reputation. 5RR232-233 (claiming because of
allegations people ""don't want to do business with me"" and ""think I'm a tar baby""), 236-237 (""I've
got a bad reputation now""). Pohl persuaded the jury to find ""attorney's fees, expenses, and costs
that Pohl has incurred in connection with the ... lawsuits, appeals, and grievances that Kassab
filed."" 13CR10931-10932.
Because Pohl's claims ""flow from"" communications that Kassab made in the barratry litigation
and grievance proceedings, they are barred regardless of their label. See Laub, 979 S.W.2d at
690 (privilege applied to claims for ""intentional interference, [*55] civil conspiracy, intentional
infliction of emotional distress, negligence, and constitutional violations""); Tex. Mut. Ins. Co. v.
Ray Ferguson Interests, Inc., No. 01-02- 00807-CV, 2006 WL 648834, at *9 (Tex. App.--
Houston [1st Dist.] Mar. 16, 2006, pet. denied) (mem. op.) (privilege applied to Texas Insurance
Code claim because plaintiff's theory of damages was that ""its clients, creditors, and bonding
companies abandoned it, in part, because of the [insurer's] allegations and assertions . . . made
in the course of this judicial proceeding"").
II. The judgment should be reformed to eliminate unrecoverable damages.
A. Exemplary damages cannot be recovered because of the lack of unanimity in
answering the predicate question.
""Exemplary damages may be awarded only if the jury was unanimous in regard to finding
liability for and the amount of exemplary damages."" C.P.R.C. §41.003(d). ""[A] party seeking
exemplary damages bears the burden of securing a unanimous verdict."" Oscar Renda
Contracting, Inc. v. Bruce, 689 S.W.3d 305, 309 (Tex. 2024). Securing unanimity on both liability
and amount of exemplary damages is a ""standard for recovery,"" and the burden ""may not be
shifted to the defendant."" Id. (quoting C.P.R.C. §41.003(b)). Because Pohl failed to secure a
unanimous liability finding, exemplary [*56] damages are not recoverable.
Question 19 was the only question that asked about exemplary damages. 13CR10944. The
predicate instruction said, ""Answer the following question only if you unanimously answered
'Yes' to Question No. 17 or Question No. 18. Otherwise, do not answer the following question.""
13CR10944.
The jury did not answer Question 18.
Some members of the jury answered Question 17 ""yes,"" finding that the misappropriation of
trade secrets was willful and malicious. 13CR10942. But the certificate at the end of the jury
verdict makes it unmistakably clear that the answer to Question 17 was not unanimous. First,
in the general part of the jury certificate the jury declined to check the box indicating that ""Our
verdict is unanimous,"" but instead checked the box indicating that only ten jurors agreed to
every answer:[SEE IMAGE IN ORIGINAL]
13CR10949. The additional certificate required the jury to indicate whether certain liability and
damages questions were answered unanimously:[SEE IMAGE IN ORIGINAL]
Page 25 of 40
2025 TX APP. CT. BRIEFS LEXIS 119, *56
In response to that instruction, the presiding juror signed certificates indicating that Questions 2
and 19 were unanimous. But the presiding juror conspicuously [*57] did not sign the certificate
for Question 17:[SEE IMAGE IN ORIGINAL]
13CR10950. Thus, the jury's answer to Question 17 was unmistakably not unanimous.
The jury's failure to answer Question 17 unanimously precludes any award of exemplary
damages by both rule and statute. See Oscar Renda, 689 S.W.3d at 310 (""a judgment may not
award such damages without unanimous jury findings as to liability for and the amount of
exemplary damages.""); T.R.C.P. 292 (""A verdict may be rendered awarding exemplary damages
only if the jury was unanimous in finding liability for and the amount of exemplary damages."");
C.P.R.C. §41.003(d) (""Exemplary damages may be awarded only if the jury was unanimous in
regard to finding liability for and the amount of exemplary damages."").
Pohl relied on the court of appeals opinion in Bruce v. Oscar Renda Contracting, 657 S.W.3d
453, 464 (Tex. App.--El Paso 2022), arguing that it was Kassab's burden to object to any conflict
between the certificate of unanimity and the presumption that jurors follow predicate instructions.
14RR11059-11064. But that decision now has been reversed by the Texas Supreme Court,
which made clear that ""[b]ecause the plaintiff bears the burden to secure unanimity, it is
the [*58] plaintiff who must seek clarification to the extent that it asserts that the divided verdict
inaccurately reflects the jury's vote as to a particular question."" Oscar Renda, 689 S.W.3d at
310. Therefore, it was Pohl's burden to object to any real or implied conflict in the jury's
responses, and to request further deliberations before the jury was discharged. See id. Pohl's
failure to do so precludes any award of exemplary damages considering the jury's clear
indication that it was not unanimous on the liability question.
B. Attorney's fees from other litigation and grievances cannot be recovered as actual
damages.
1. Attorney's fees are not ""actual losses"" under TUTSA.
TUTSA provides recovery for ""actual loss[es] caused by misappropriation,"" C.P.R.C.
§134A.004, but the act does not define that term. Although no Texas case has provided a
definition, the act requires this provision to ""be applied and construed to effectuate its general
purpose to make uniform the law with respect to the subject of this chapter among states
enacting it."" Id. §134A.008. Thus, the Court must be guided by decisions from other states that
have adopted the Uniform Trade Secrets Act. See Morgan [*59] v. Clements Fluids S. Tex.,
Ltd., 589 S.W.3d 177, 191 n.4 (Tex. App.--Tyler 2018, no pet.) (looking to ""very similar"" Florida
statute).
Courts in other jurisdictions ""have made clear that 'actual loss' means 'loss of profits, lost
customers or lost market share.'"" K3 Enter., Inc. v. Sasowski, No. 20-24441- CIV-CAN, 2022
WL 17987272, at *3 (S.D. Fla. 2022) (reputational damage not ""actual loss"" under Florida's
trade-secret statute) (citing Fin. Info. Techs., LLC v. iControl Sys., USA, LLC, 21 F.4th 1267,
1276 (11th Cir. 2021) (""actual loss"" in terms of lost profits); Selectica, Inc. v. Novatus, Inc., No.
6:13-cv-1708-Orl-40TBS, 2022 WL 17987272, at *3 (M.D. Fla. 2015) (""'Actual loss' has been
defined as 'loss of profits, lost customers or lost market share.'""); Saforo & Assocs., Inc. v.
Page 26 of 40
2025 TX APP. CT. BRIEFS LEXIS 119, *59
Porocel Corp., 991 S.W.2d 117, 124 (Ark. 1999) (""actual loss"" means ""the plaintiff's lost profits
or the defendant's gain, whichever affords the greater recovery."").
In 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 Twin Falls
Staffing, LLC v. Visser (In re Visser), No. 1:13-cv- 00408-BLW, 2014 WL 1599931, at *5 (D.
Idaho 2014) (losses from misappropriation [*60] of trade secrets ""logically include lost profits,
but not attorneys' fees."").
That attorney's fees from other litigation are not actual losses recoverable under TUTSA is
consistent with Texas trade-secret law 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 defendant'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, 491
S.W.3d at 710-11 (emphasis added). No Texas appellate court has ever allowed the recovery of
attorneys' fees as actual damages in a trade-secret claim. In fact, at least one has concluded the
opposite while dismissing a TUTSA claim. See Lacore Enters., LLC v. Angles, No. 05-21-
00798-CV, 2023 WL 2607562, at *9 (Tex. App.--Dallas Mar. 23, 2023, no pet. h.) (mem. op.)
(rejecting contention that ""disclosure of [party's] confidential information"" caused ""the attorney's
fees that have been incurred [which] is evidence of damages"" because ""attorney's fees incurred
in a lawsuit are not actual damages."").
This conclusion is further reinforced by Texas law regarding [*61] attorney's fees incurred in
previous litigation. ""[A]ttorney's fees expended in prior litigation generally are not recoverable as
damages; attorney's fees are recoverable only when an agreement between the parties so
provides."" Stumhoffer v. Perales, 459 S.W.3d 158, 168 (Tex. App.-- Houston [1st Dist.] 2015,
pet. denied). And ""[a] party relying on assertions of non-recoverable damages alone, such as
attorney's fees and expenses sustained in defending a lawsuit ... has 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.).
2. The ""tort of another"" doctrine does not apply.
Pohl argued that he is entitled to recover attorney's fees based on the ""tort of another"" doctrine.
14CR11578-11579. That doctrine provides that ""[o]ne who through the tort of another has been
required to act in the protection of his interests by bringing or defending an action against a third
person is entitled to recover reasonable compensation for loss of time, attorney fees and other
expenditures thereby suffered or incurred in the earlier action."" 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)). But that exception has never been
embraced by the Texas Supreme Court 21 and has been flatly rejected by the Fourteenth Court
21 See Akin, Gump, Strauss, Hauer [*62] & Feld, L.L.P. v. Nat'l Dev. & Research Corp., 299 S.W.3d 106, 119 (Tex. 2009)
(declining to ""address whether the exception set out in section 914(2) ... should be adopted"").
Page 27 of 40
2025 TX APP. CT. BRIEFS LEXIS 119, *62
of Appeals. 22 See id. (""[W]e are not at liberty to adopt a theory of recovery that has not been
enacted by the Legislature or adopted by the Texas Supreme Court."").
This Court has not specifically addressed whether the ""tort of another"" exception is viable but
has stated it is an equitable doctrine that 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 WL
1539291, at *7-8 (Tex. App.--Houston [1st Dist.] June 30, 2005, no pet.) (mem. op.); Dixon Fin.
Servs. v. Chang, 325 S.W.3d 668, 678 (Tex. App.--Houston [1st Dist.] 2010, pet. denied)
(referring to ""exception"" as ""[e]quitable principle[]""). The doctrine does not apply here because
Pohl expressly waived any equitable claims 23 and is not wholly innocent.
The jury found that the ""wrongful conduct of Pohl ... contribute[d] to the injury."" 24 13CR10927.
Although Pohl argues that the jury failed to assign any percentage of responsibility to Pohl in
Question 4, 14CR11068, the point is not about proportionate responsibility. Rather, the point is
simply that one without clean hands cannot obtain an equitable remedy, and one found to have
engaged in ""wrongful conduct"" does not have clean hands. See Frazier v. Havens, 102 S.W.3d
406, 414 (Tex. App.--Houston [14th Dist.] 2003, no pet.). Because the jury concluded that Pohl
is not ""wholly innocent,"" the equitable doctrine does not apply. See Per-Se Techs., 2005 WL
1539291, at *7-8; Pacesetter Pools, Inc. v. Pierce Homes, Inc., 86 S.W.3d 827, 834 (Tex. App.-
-Austin 2002, no pet.).
Moreover, Pohl is not seeking to recover fees incurred by defending against actions brought by
third persons. Rather, Pohl testified that ""Kassab brought"" the underlying lawsuits against him, 25
and asked the jury to award him fees incurred in the ""lawsuits, appeals, and grievances that
Kassab filed against Pohl."" 13CR10931 (emphasis added). Therefore, the doctrine does not
apply. See Turner v. Turner, 385 S.W.2d 230, 234 (Tex. 1964) (noting that if ""tort of another""
doctrine exists, ""the litigation must have involved a third party and not against the defendant []
in [*64] the present action.""); Dixon, 325 S.W.3d at 678 (declining to apply doctrine when ""[t]he
claimed attorney's fees were not incurred in litigation with a third person, rather, the fees were
incurred following litigation with [plaintiff's] present adversaries in this litigation."").
3. Damages resulting from the litigation and grievances are not recoverable because of
privilege and immunity.
For the reasons stated in sections I(E)(2)-(4), supra, even if Pohl's claims are not barred by
immunity or privilege, his damages for fees and expenses incurred defending against the
barratry cases and grievances are. It cannot be disputed that those damages resulted solely
from Kassab discharging his duties to his clients, thus giving rise to attorney immunity or the
22 Other intermediate courts have refused to adopt the doctrine. See TOKA Gen. Contractors v. Wm. Rigg Co., No. 04-12-
00474-CV, 2014 WL 1390448, at *7 (Tex. App.--San Antonio Apr. 9, 2014, pet. denied) (mem. op.) (collecting cases).
23 10CR8077 (""Pohl does not seek any equitable relief."").
24 Kassab originally asked the trial court to submit the question that Pohl committed unlawful [*63] conduct, including barratry,
but the court improperly rejected that request. 13CR10899-10900.
25 5RR231; 6RR109.
Page 28 of 40
2025 TX APP. CT. BRIEFS LEXIS 119, *63
judicial proceedings privilege, or are predicated on Kassab's participation in the disciplinary
system, thus giving rise to absolute immunity.
C. Other actual damages must be eliminated or reduced.
The jury found damages of $ 250,000 for the fair market value of the alleged trade secrets and
$ 200,000 for the value of the development costs that Kassab avoided by appropriating them.
The judgment awarded both elements of [*65] damages. There is legally insufficient sufficient
evidence of both, but at the very least the award of both constituted an improper double
recovery.
1. There was no evidence of market value.
Pohl presented no testimony about the ""market value"" of the information. See City of
Harlingen v. Estate of Sharboneau, 48 S.W.3d 177, 182 (Tex. 2001) (defining ""market value"" to
mean ""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 necessity of
buying.""). In fact, Pohl's counsel acknowledged that Pohl would never be a ""willing seller"" of the
information, 6RR18, because Pohl would never sell the ""attorney-client privilege files to
anybody"" for any amount of money. 6RR37.
Pohl attempted to testify about market value over Kassab's objection by claiming that the ""floor
value"" of the information was $ 250,000, the figure that Kassab paid Favre as a retainer to act
as an expert in the barratry litigation. 6RR42. Even if the jury could reasonably find that $
250,000 was a ""purchase price"" for Pohl's alleged trade secrets, that would be considered
""actual value"" not ""market value,"" which was the theory submitted [*66] to the jury. Pike v. Tex.
EMC Mgmt., LLC, 610 S.W.3d 763, 784 n.27 (Tex. 2020) (""evidence of purchase price alone
cannot establish market value"" and approving cases rendering take-nothing judgments ""where
purchase price was only evidence of damages presented""). Further, ""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., K. & T. R. Co. v. Moss, 135 S.W. 626, 627 (Tex. Civ.
App. 1911, no writ).
A ""value to me"" standard cannot be substituted for the accepted rule for establishing market
value, nor can a party ""establish a value based entirely upon speculation."" Nat. Gas Pipeline
Co. of Am. v. Justiss, 397 S.W.3d 150, 158 (Tex. 2012). There is no evidence to support the $
250,000 award of market value, and this portion of the judgment should be vacated.
2. There was no evidence of development costs.
Although Pohl testified about his alleged personal investment in the ""project,"" 26 that is no
evidence of the amount Kassab saved in development costs. See Pike, 610 S.W.3d at 781.
Pohl testified that he spent up to $ 6 million on the entire ""project,"" including fees and expenses.
5RR221-222. The project included ""vetting"" clients and working with them to obtain financial
information necessary to process BP [*67] claims. 5RR180-181; 6RR64. It included paying the
marketers for things like public relations, client liaison, and evidence-gathering services. DX106;
26 5RR221-222; 6RR41, 43-44, 46, 135.
Page 29 of 40
2025 TX APP. CT. BRIEFS LEXIS 119, *67
see also DX72, 73, 74, 75. And Pohl testified that he recouped $ 4 million of the $ 6 million he
spent from his share of attorney's fees. 5RR223; 6RR135.
Because the $ 6 million paid by Pohl included fees and expenses beyond what it would cost to
simply acquire the client base (the purported trade secret), Pohl did not provide any evidence to
support a jury finding of development costs saved by Kassab. See Pike, 610 S.W.3d at 781-82.
""Instead, the jury was left to speculate or guess about the amount [Kassab] saved in
development costs based on the [alleged] misappropriation of [Pohl's purported] trade secrets,
which does not constitute legally-sufficient evidence."" Pike v. Tex. EMC Mgmt., LLC, 579
S.W.3d 390, 418 (Tex. App.-- Waco 2017), rev'd in part, aff'd in part, jdmt. entered, 610 S.W.3d
763 (Tex. 2020); Sw. Energy, 491 S.W.3d at 712 (damages ""cannot be based on sheer
speculation."").
3. At the very least, Pohl cannot recover both.
Under TUTSA, a claimant is entitled to recover ""actual loss caused by the misappropriation and
unjust enrichment caused by misappropriation [*68] that is not taken into account in computing
actual loss."" C.P.R.C. §134A.004. ""Value to the defendant may be measured by the defendant's
actual profits resulting from the use or disclosure of the trade secret (unjust enrichment), the
value a reasonably prudent investor would have paid for the trade secret, or
development costs that were saved."" Sw. Energy, 491 S.W.3d at 711 (emphasis added).
Awarding both market value and development costs constitutes an improper double recovery.
See Virtuolotry, LLC v. Westwood Motorcars, LLC, No. 05-19-01055-CV, 2024 WL 4211328, at
*6-7 (Tex. App.--Dallas Sep. 17, 2024, no pet.) (mem. op. on remand) (recovery of ""lost profits
and the market value"" of property amounts to improper ""double recovery.""). If Pohl recovers the
fair market value of his alleged trade secrets, he will be fully compensated for any actual loss. If
he were willing to sell the alleged secrets to a third party, that buyer would necessarily possess
the secrets and would avoid any development costs as part of the acquisition. As the trial court
recognized, the development costs are ""taken into account"" in the market value and duplicate
the fair market value. 12RR32-33 (""You just get the one or the other.""). To award both was an
impermissible [*69] double recovery.
D. Kassab cannot be jointly and severally liable because conspiracy claims are
preempted.
The judgment also improperly includes joint-and-several liability against Kassab based on a
conspiracy finding by the jury in Question 15. 13CR1094; 14CR11291. Pohl's conspiracy claim
is either preempted by TUTSA or subject to the proportionate-responsibility scheme of Chapter
33 of the C.P.R.C. Therefore, the judgment improperly includes joint-and-several liability against
Kassab and holds him responsible for 100% of the damages awarded instead of his 70%
proportionate responsibility found by the jury. 13CR10928.
TUTSA ""displaces conflicting tort, restitutionary, and other law of this state providing civil
remedies for misappropriation of a trade secret."" C.P.R.C. §134A.007. In Reynolds, the plaintiff
sued for misappropriation of trade secrets and aiding and abetting breach of fiduciary duty. 2023
WL 8262764, at *3. This Court concluded that the aiding-and-abetting claim was ""primarily
based on the individual appellants' misappropriation of trade secrets"" and ""provide[ed] remedies
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2025 TX APP. CT. BRIEFS LEXIS 119, *69
for the underlying misconduct of misappropriation of trade secrets."" Id. at *17. ""Under the plain
language of TUTSA, these claims conflict with civil remedies for misappropriation of a trade
secret."" Id. Therefore, ""TUTSA preempts these claims to the extent they are based on
appellants' alleged misappropriation of trade secrets."" Id.
Pohl's conspiracy claim, like [*70] the aiding-and-abetting claim in Reynolds, is based entirely
on Kassab's alleged misappropriation of trade secrets. The conspiracy question asked,
""[r]egarding the conduct you found in answer to Question No. 2 [the misappropriation of trade
secret question], was Kassab part of a conspiracy that damaged Pohl with any of those named
below?"" 13CR10940. Because Pohl's conspiracy claim is ""primarily based on"" alleged
misappropriation of trade secrets, it is preempted. See Reynolds, 2023 WL 8262764, at *17.
With respect to Chapter 33, it applies to ""any cause of action based on tort in which a
defendant, settling person, or [RTP] is found responsible for a percentage of the harm for which
relief is sought."" C.P.R.C. §33.002(a). ""Civil conspiracy is an intentional tort."" Firestone Steel
Prods. Co. v. Barajas, 927 S.W.2d 608, 617 (Tex. 1996). Chapter 33 lists those claims to which
it does not apply and does not list conspiracy. C.P.R.C. §33.002(c). Accordingly, courts have
concluded that Chapter 33's proportionate-responsibility scheme applies to conspiracy claims,
rather than joint-and-several liability. See Seven Seas Petroleum, Inc. v. Cibc World Mkts.
Corp., No. H- 08-3048, 2013 WL 3803966, at *22 (S.D. Tex. 2013) (""when the Legislature has
chosen to impose joint and several liability rather [*71] than proportionate liability, it has clearly
said so.""); Pemex Exploracion Y Produccion v. BASF Corp., No. H-10-1997, 2011 WL
9523407, at *11-13 (S.D. Tex. 2011) (conspiracy claims are not expressly exempted from
proportionate responsibility).
Because the conspiracy claim is either preempted by TUTSA or subject to the proportionate-
responsibility scheme under Chapter 33, the judgment should not include joint-and-several
liability against Kassab or make Kassab liable for all damages when the jury found him only
partially responsible.
E. Because Pohl's actual recoverable damages are less than the amount of the settlement
credit, a take-nothing judgment should be entered.
Because the exemplary-damage award is not unanimous, and attorney's fees are not
recoverable, Pohl's only recoverable damages are $ 200,000, which represents the jury's
answers to Question No. 7(3) and the amount that Pohl stated he would elect. 12RR34.
However, Kassab was only found to be 70% responsible, so the damages should be reduced to
$ 140,000. See C.P.R.C. §33.012(a). The Court must then apply the $ 765,000 settlement
credit, 27 which results in Pohl receiving no net recovery from Kassab. See id. §33.012(b).
If the Court concludes [*72] that an award of exemplary damages is appropriate, the
settlement credit still exceeds the recoverable damages. Exemplary-damage awards are also
subject to a settlement credit when, as here, the plaintiff does not ""tender a valid settlement
agreement allocating between actual and punitive damages to the trial court in order to avoid a
settlement credit."" Sky View at Las Palmas, LLC v. Mendez, 555 S.W.3d 101, 111 (Tex. 2018).
27 13CR10956.
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2025 TX APP. CT. BRIEFS LEXIS 119, *72
Because exemplary damages under TUTSA are capped at two times recoverable actual
damages, if actual damages are reduced to $ 200,000, exemplary damages would be limited to
$ 400,000. See C.P.R.C. §134A.004(b). If that amount is added to the actual damages reduced
by the 70% proportionate-responsibility finding, Pohl's recoverable damages against Kassab
amount to $ 540,000, which is less than the $ 765,000 settlement credit. See Universal Servs.
Co. v. Ung, 882 S.W.2d 460, 467 (Tex. App.--Houston [14th Dist.] 1994) (""[I]n cases where
actual damages awards may be trebled by statute, the supreme court allows credits of
settlement proceeds against the trebled sum.""), rev'd on other grounds, 904 S.W.2d 638 (Tex.
1995).
Because Pohl's recoverable damages are eclipsed by the settlement credit, he cannot recover
attorney's fees. As this Court has [*73] recognized:
It is one thing to allow an attorney's fees award on a successful claim notwithstanding an
opposing party's success on an offsetting claim. However, it is another to allow attorney's
fees on a claim that, although successful, was paid in full before trial.
Buccaneer Homes of Ala. Inc. v. Pelis, 43 S.W.3d 586, 591 (Tex. App.--Houston [1st Dist.] 2001,
no pet.). Because Pohl's only legally recoverable damages against Kassab are more than offset
by the settlement credit, Pohl is not entitled to any attorney's fees. See Alanis v. US Bank Nat'l
Ass'n, 489 S.W.3d 485, 514 (Tex. App.--Houston [1st Dist.] 2015, pet. denied).
Because Pohl has no recoverable damages against Kassab and no right to recover attorney's
fees, the Court should reverse and render a take-nothing judgment.
III. Alternatively, the judgment should be reversed and remanded.
In the alternative, judgment against Kassab should be reversed and remanded because of
error that probably caused the rendition of an improper judgment, or because there is factually
insufficient evidence to support several of the jury's findings.
A. The failure to allow designation of RTPs requires a new trial.
A trial court is required to grant leave to designate RTPs if a motion is timely filed that pleads
sufficient facts concerning the alleged responsibility [*74] of the persons to be designated. In
re YRC Inc., 646 S.W.3d 805, 809 (Tex. 2022). Kassab timely moved to designate Walker,
Ladner, Seymour, Precision, Favre, Billy Shepherd, Donalda Pohl, Edgar Jaimes, Ken Talley,
and Magdalena Santana as RTPs, and pleaded sufficient facts demonstrating their
responsibility. 2CR909-920; 5CR7869-7874, 7903-7977. The trial court denied leave to submit
all but Favre and Precision. 28 13CR10611. This error probably caused rendition of an improper
judgment, warranting new trial.
Kassab alleged that Walker, Ladner, and Seymour were responsible for the alleged harm to
the extent they misappropriated Pohl's trade secrets in the first instance and then sold them to
28 The trial court did include Walker, Ladner, and Seymour in the definition of Precision, 13CR10923, and allowed Precision's
responsibility to be considered by the jury. 13CR10925-10926. However, Kassab was entitled to submission of ""each [RTP].""
C.P.R.C. §33.003(a)(4).
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2025 TX APP. CT. BRIEFS LEXIS 119, *74
Favre, who Pohl alleges then sold them to Kassab. 5RR7910. Kassab supported these
allegations with Pohl's testimony that the information Pohl claims are his trade secrets was sold
by Walker, Ladner, and Seymour to Favre ""without [his] consent."" 5CR7926-7933, PP18, [*75]
28-29. Thus, if Pohl's trade secrets were misappropriated, Walker, Ladner, and Seymour
contributed to it. 5CR7911.
Kassab also demonstrated that Shepherd knew that Walker, Ladner, and Seymour transferred
Precision's assets to Favre, including the information that Pohl claims are his trade secrets.
5CR7871-7872, 7912. Shepherd also knew that Favre gave documents to third parties,
including Kassab, before settling the Mississippi litigation, but failed to protect Pohl by ensuring
that all proprietary information was returned to Pohl or destroyed as part of the any settlement
agreement. 5CR7871-7872, 7912. Thus, if Pohl was harmed by the loss of his purported trade
secrets, Shepherd contributed to that loss. 5CR7871-7872, 7912.
Finally, Kassab alleged that if Donalda, Jaimes, Talley, or Santana had a duty to safeguard any
property allegedly owned by Pohl, they failed to safeguard the property by routinely placing
Pohl's alleged trade secrets in the public domain. 5CR7872, 7913.
Because Kassab timely moved to designate these individuals as RTPs, the trial court erred by
denying the designation. See YRC, 646 S.W.3d at 810; C.P.R.C. §33.004(g). This error was
also harmful. ""Prohibiting [*76] the jury from considering [these individuals'] partial responsibility
for [Pohl's claimed losses] was harmful error because litigants have a 'significant and
substantive right to allow the fact finder to determine the proportionate responsibility of all
responsible parties.'"" Gregory v. Chohan, 670 S.W.3d 546, 568 (Tex. 2023) (quoting In re
Coppola, 535 S.W.3d 506, 509 (Tex. 2017)). ""A new trial is therefore required."" Id. (""Allowing
a case to proceed to trial despite erroneous denial of a responsible-third-party designation would
skew the proceedings and potentially affect the outcome of the litigation."") (emphasis added).
B. Pohl's witness tampering warrants a new trial.
After trial, newly discovered evidence demonstrated that Pohl engaged in unlawful bribery and
witness tampering that materially affected the jury verdict. 14CR11100-11140, 11374-11379.
The trial court's refusal to grant a new trial under these circumstances 29 was error that caused
the rendition of an improper judgment.
In a recorded telephone call with Kassab after the jury verdict, Walker, a key witness in this
case, confessed that he and Ladner were promised 30 percent of any judgment against Kassab
in exchange ""for our depositions and our testimony and [*77] our positions on certain things
that, you know, helped and - in getting that judgment."" 30 14CR11432. Walker further stated that
Pohl made that offer before their depositions 31 and that they were ""coached on how to be
deposed."" 14CR11433. Walker candidly admitted that he ""felt like [he] should call because ...
29 14CR11287.
30 A copy of the recording was available to the trial court and may be accessed via the following link:
https://www.dropbox.com/scl/fi/8wayofizgx7q2vpsccm3p/December-8-2023-Call-with-Scott-
Walker.m4a?rlkey=ngn37vr14zzam5avy9c5ta376&st=1trmuym9&dl=0
31 14CR11432.
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2025 TX APP. CT. BRIEFS LEXIS 119, *77
the whole premise of the depositions was based on the 30 percent that we were promised.""
14CR11438.
Walker's candid after-trial revelation demonstrates that Pohl obtained the judgment against
Kassab by committing witness tampering and suborning perjury. 32 A person commits witness
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. T.P.C. §36.05(a). Walker's statements demonstrate that Pohl did that
by offering them 30 percent of any judgment against Kassab in exchange for their favorable and
untruthful testimony. 14CR11432.
Aggravated perjury occurs if the person, with intent to deceive, makes a false statement under
oath in an official proceeding. T.P.C. §§37.02, 37.03. Walker stated that he and Lardner testified
under oath in their depositions, about ""facts that weren't necessarily told the correct way or told
on how it really happened."" 14CR11433. Moreover, Walker made it clear that these false
statements were made with the intent to deceive because ""the whole premise of the depositions
was based on the 30 percent that we were promised."" 14CR11438.
The false testimony drastically changed the course of the trial and resulted in an improper
judgment. Although Walker and Ladner testified one [*79] way in the Mississippi litigation they
brought against Pohl, when they were deposed in this case, they reversed course on seminal
issues of barratry and ownership of Pohl's purported trade secrets.
For instance, in the Mississippi litigation, Walker testified that Pohl paid Precision $ 5 million in
""barratry money"" to unlawfully solicit clients. 14CR11446- 11448, 11451-11452. In that
deposition, Walker testified it was ""clear to [him] it was barratry."" 14CR11450. But in this case,
after being coached and bribed by Pohl, Walker recanted and took the position that he ""didn't
know what barratry meant until [his lawyer in the Mississippi litigation] taught [him] well on how
to say the word"" and ""advised"" him to lie. 14CR11456. But then in the unsolicited recorded
phone call, Walker confessed that ""it was barratry."" 14CR11435. Walker admitted he was
""coached on how to be deposed"" by Pohl 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."" 14CR11435.
Walker's testimony about ownership of information that Pohl claimed as his trade secret was
also impacted by Pohl's [*80] witness tampering. Walker initially signed agreements that
confirmed the information was owned by Precision and not Pohl. DX25, 26, 27. After being
coached and bribed by Pohl, Walker testified in this case ""[w]hat I believed was that they were in
our possession. I did not believe that we owned them."" 14CR11454-11455. But in the recorded
phone call, Walker confessed that his and Ladner's testimony was based on ""the 30 percent that
[they] were promised."" 14CR11438.
32 Walker's out-of-court statements are not hearsay because they would expose him to criminal liability. See T.R.E. 803(24)(A)
(excluding from hearsay statements that have tendency ""to expose the declarant to civil or criminal liability.""). Additionally, the
statements are excluded from hearsay because, as Pohl's lawyer testified, Walker was Pohl's representative, 6RR223, [*78] or
because they are made by a coconspirator. T.R.E. 801(e)(2)(D), (E).
Page 34 of 40
2025 TX APP. CT. BRIEFS LEXIS 119, *78
Because Walker's and Ladner's false deposition testimony was inconsistent with their
testimony from the Mississippi litigation, Kassab decided not to call them as witnesses at trial.
13CR10841; 14CR11444. If Pohl had not engaged in unlawful witness tampering and bribery,
Walker and Ladner presumably would have testified, consistent with their testimony in the
Mississippi litigation: Pohl hired them to commit barratry; Precision owned the file documents
that were sold to Scott Farve; and the materials were Precision's work product, not Pohl's trade
secrets. If they had testified truthfully in their depositions, Kassab would have called them at
trial, 33 and their testimony would have materially impacted the jury's [*81] verdict. Specifically,
that testimony would have impacted the jury's answers to Question Nos. 1, 2, and 4 regarding
ownership of a trade secret, misappropriation of the alleged trade secret, and Pohl's percentage
of responsibility. 13CR10924-10928.
A new trial should be granted here. See In the Interest of E.S., No. 02-20-00407- CV, 2021
WL 2149627, at *9 (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 trial may be granted."");
In re Marriage of Hutcherson, No. 12-18-00345-CV, 2019 WL 4727843, at *4 (Tex. App.--Tyler
Sep. 27, 2019, no pet.) (mem. op.) (vacating judgment when ""the award is based on false
testimony, and the [fact finder] was deceived as to a material issue.""); Dixie Gas & 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 new trial); Rosebud Sioux Tribe v. A & P Steel, Inc., 733 F.2d 509, 521-522
(8th Cir. 1984) (district court abused discretion by failing to grant new trial based on newly
discovered evidence that party paid witness to testify falsely).
C. The trial court's denial of discovery despite Pohl's offensiveuse of privilege requires a
new trial.
Because Pohl was seeking attorney's fees from the barratry proceedings as actual damages,
Kassab moved to compel [*82] Pohl to provide complete, unredacted billing records and other
information relevant to Kassab's defenses based on the offensive-use doctrine. 8CR6079-6962;
9CR6964-7621. The trial court denied that motion, 5CR7978, and overruled Kassab's objection
at trial. 8RR47-49. That error probably caused the rendition of an improper judgment, warranting
new trial.
Even assuming that Pohl established privilege, 34 Kassab's motion demonstrated that Pohl
could not sue Kassab for affirmative relief claiming Kassab stole his purported trade secrets and
caused clients to bring barratry claims against Pohl while, at the same time, claiming privilege to
deny access to discovery that would be outcome determinative to those claims. 8CR6085-6094
(discussing Ginsberg v. Fifth Court of Appeals, 686 S.W.2d 105, 108 (Tex. 1985)). Outcome-
determinative discovery would include information that demonstrates Pohl's claims are barred by
limitations, illegality, or the unlawful-acts doctrine; or information demonstrating that Pohl [*83]
33 14CR11444.
34 Pohl submitted a conclusory declaration that globally stated every communication between him and his lawyers was
privileged. 9CR7624-7628; see Weisel Enters., Inc. v. Curry, 718 S.W.2d 56, 58 (Tex. 1986) (global claim of privilege
insufficient).
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2025 TX APP. CT. BRIEFS LEXIS 119, *83
is not the owner of the purported trade-secret information. See Ginsberg, 686 S.W.2d at 106
(plaintiff could not assert privilege to protect against disclosure of information that was
""materially relevant to, and possibly validated, the statute of limitations defenses""). But that is
exactly what Pohl did, claiming privilege when Kassab sought this information. 8CR6085-6094.
The Texas Supreme Court has recognized that a ""party may waive its workproduct privilege
through offensive use--perhaps by relying on its billing records ... to recover its own
attorney fees."" In re Nat'l Lloyds Ins. Co., 532 S.W.3d 794, 807 (Tex. 2017) (emphasis
added). This rule was applied in In re Beirne, Maynard & Parsons, L.L.P., 260 S.W.3d 229
(Tex. App.--Texarkana 2008, no pet.), which ordered an attorney seeking fees as damages to
produce complete billing records and the documentation underlying those records:
[The attorney] filed suit to recover fees for which it had invoiced the real parties. It now
attempts to prevent the real parties from examining documentation underlying those
invoices--to determine whether they are accurate--and which is the critical defensive issue in
the lawsuit. This constitutes an offensive use of what [the attorney] categorizes as
workproduct privilege. [*84] Simply put, you cannot deny a party the right to review
documents supporting your claim for reimbursement.
Id. at 231. But that is exactly what Pohl did here by seeking reimbursement from Kassab of the
fees and expenses incurred in the barratry litigation but, at the same time, denying Kassab the
right to determine whether the invoices were accurate, and the fees reasonable and necessary.
Accordingly, the trial court erred by refusing to order Pohl produce complete unredacted
versions of the invoices Pohl claimed support his damages, along with all underlying
documentation, including communications and draft documents. The trial court also should have
found that Pohl waived any privilege between him and Shepard regarding: (1) when Pohl
discovered any alleged misappropriation; (2) Pohl's efforts to keep the information secret; and
(3) Pohl's unlawful barratry. In his motion, Kassab explained how each of the offensive-use
elements was met, and how the information was outcome determinative to his defenses.
8CR6089-6093 (discussing In re Sw. Airlines Co., 155 S.W.3d 622, 624 (Tex. App.--San
Antonio 2004, no pet.) (information is outcome determinative when defendant's ""ability to
succeed on its limitations defense hinges on what was discovered"" [*85] by plaintiff)).
Because Pohl did not produce unredacted billing records, the trial court should have sustained
Kassab's objection to Pohl's billing-record trial exhibits, and sustained Kassab's objection to
Pohl's expert testifying that those fees were reasonable and necessary. See Remington Arms
Co. v. Caldwell, 850 S.W.2d 167, 170 (Tex. 1993) (""court has the power during trial to sanction
nondisclosure of information"" by excluding it).
These errors were harmful because they allowed Pohl to use the redacted billing records,
which the jury undoubtedly relied on when awarding Pohl attorney's fees, and allowed Pohl's
expert to testify based on those records. 8RR47-51, 57-58. Moreover, significant substantive
and procedural rights of Kassab were implicated by the trial court's erroneous exclusion of
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 unredacted billing
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2025 TX APP. CT. BRIEFS LEXIS 119, *85
records also may demonstrate that the fees Pohl sought were not reasonable or necessary. The
missing evidence deprived Kassab [*86] of his ability to conclusively show that the jury would
have answered liability or damages questions differently if the evidence had been obtained, and
prevented Kassab from including the evidence in the record, thus constituting harmful error.
D. The trial court erred by refusing to submit Kassab's proposed jury questions on his
affirmative defenses.
The Texas Supreme Court has characterized Rule 278 as a ""substantive, non-discretionary
directive to trial courts requiring them to submit requested questions to the jury if the pleadings
and any evidence support them."" Elbaor 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 requested submission of two proposed questions relating to pleaded affirmative
defenses, which the evidence supported.
First, Kassab requested 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?"" 10CR10899-10900. That question was directly
relevant to Kassab's unlawful-acts defense, which provides that ""no action will lie to recover a
claim for [*87] 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, 9 S.W. 602, 602-03 (1888). ""Courts 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 have applied the doctrine without a criminal conviction so long
as ""the unlawful act barring the plaintiff's claim was in fact illegal conduct."" McNally v. McNally,
No. 02- 18-00142-CV, 2020 WL 5241189, at *10 (Tex. App.--Fort Worth Sep. 3, 2020, pet.
denied) (mem. op.).
Substantial evidence supported submission. Pohl's own testimony demonstrated that he
committed the unauthorized practice of law because he had an office in and submitted claims
from Mississippi but had no license there. 6RR73. Kassab testified that Pohl committed barratry
based on the evidence he had seen. 4RR171-172, 215217, 219-220; 5RR50-51. Reese testified
she was unlawfully solicited by Pohl. 7RR41- 50, 108. Pohl's office manager testified that Pohl
paid Precision to acquire clients [*88] and refer them to Pohl, and that Pohl paid Precision a
percentage of his fees in exchange. 7RR162-166. Kassab's experts testified Pohl committed the
unauthorized practice of law in Mississippi, 8RR142-144, and would have testified that Pohl
committed barratry if they had been permitted. 7RR218; 8RR157-158, 257-258. 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.
Second, Kassab requested submission of 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?"" 13CR10902-10903. That question was directly relevant to Kassab's privilege or
immunity defense because ""trade secret law permits disclosures relevant to public health or
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2025 TX APP. CT. BRIEFS LEXIS 119, *88
safety, commission of crime or tort, or other matters of substantial public concern."" Bartnicki,
532 U.S. at 539.
More than sufficient evidence supported submission. Pohl testified that Kassab used or
disclosed Pohl's [*89] alleged trade secrets as evidence to file lawsuits and grievance
proceedings against Pohl for barratry. 5RR203-205; 6RR24-25, 55. Kassab denied that the
information constituted Pohl's trade secrets but testified that the information was used to
discharge his ethical obligations, report Pohl's misconduct to the disciplinary authority, and
inform individuals whom may have been unlawfully solicited that what Pohl did was a crime.
5RR47. A ""yes"" answer to Proposed Question 8 would have established that Kassab had
privilege or immunity with respect to any purported misappropriation or ""use"" of Pohl's alleged
trade secrets.
Charge error is harmful, and thus reversible, if it relates to a contested critical issue. R.R.
Comm'n of Tex. v. Gulf Energy Expl. Corp., 482 S.W.3d 559, 566-71 (Tex. 2016). Proposed
Questions 6 and 8 were both contested critical issues because a ""yes"" answer to either would
have precluded liability against Kassab. Therefore, the trial court's erroneous refusal to submit
these questions warrants a new trial. See id.
E. Factually insufficient evidence supports the jury's findings.
For the reasons in section I(A-C) and I(E)(3), the evidence is factually insufficient to support the
jury's findings [*90] that (1) that Pohl owned a trade secret in attorney-client contracts and lists
of Pohl's actual, potential, or rejected clients; (2) Kassab engaged in misappropriation, much
less willful misappropriation, of Pohl's alleged trade secret; and (3) Kassab did not use the
purported trade secrets while in an attorney-client relationship. Even if the evidence supporting
those findings is not legally insufficient, it is at least factually insufficient. Accordingly, if the Court
does not reverse and render judgment in favor of Kassab, he is at least entitled to a new trial.
IV. The trial court erred by dismissing Kassab's counterclaims for civil barratry.
The trial court erred when it granted Pohl's traditional motion for summary judgment on
Kassab's counterclaims for civil barratry pursuant to section 82.0651 of the Texas Government
Code. 2CR892. No argument Pohl advanced in his motion withstands scrutiny.
First, Pohl argued res judicata. 1CR389-391. But that doctrine does not apply if facts change
and the relationship between the parties has been altered. Marino v. State Farm Fire & Cas.
Ins. Co., 787 S.W.2d 948, 949-50 (Tex. 1990). That is what occurred here. Before there was a
final judgment dismissing the clients' [*91] civil barratry claims based on limitations, 35 Pohl
sued Kassab arising from the same transaction where the barratry occurred. 1CR27-37. That
act allowed the clients to assign the barratry claims to Kassab to be brought as counterclaims in
this action, 36 thus allowing C.P.R.C. section 16.069 to revive the otherwise time-barred barratry
35 The Gandy case was dismissed by the trial court in June 2018, 1CR509, but was appealed, and the judgment was not
affirmed until May 2021. See 634 S.W.3d at 214. The Brumfield case was dismissed by the trial court in June 2019, 1CR450,
but was appealed, and the judgment was not affirmed until May 2021. See 634 S.W.3d at 170.
36 1CR451-453, 768.
Page 38 of 40
2025 TX APP. CT. BRIEFS LEXIS 119, *91
claims. 1CR362-370. Because both the factual circumstances and the relationship between the
parties changed, res judicata did not apply. 37 See Marino, 787 S.W.2d at 949-50 (res judicata
did not bar [*92] insured's subsequent suit for bad faith because claim was not available when
first judgment was entered).
Second, Pohl argued limitations. 1CR391-398. But limitations is tolled on these claims
pursuant to section 16.069 because they arise out of the same 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. See 1CR692-701 (explaining relationship between claims and how they
were timely asserted).
Third, Pohl argued that the clients' assignments of barratry claims against him are invalid,
violate public policy, and should not be enforced. Pohl should have been estopped from making
this argument after he told other courts that the assignments were valid. 1CR703-704.
Regardless, the assignments were not invalid as 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, the only
claims that cannot be assigned under Texas law. 1CR704-707 (citing Brumfield, 634 S.W.3d at
206 (rejecting as ""misplaced"" clients' effort to ""analogize legal-malpractice claims to civil-barratry
claims"") and 1CR832 (recognition by [*93] Pohl that ""civil barratry claims are different"")).
Moreover, even if the assignments violated the disciplinary rules, Pohl has no standing to
complain, and Texas courts have enforced agreements even if they contravene the rules. See
1CR707-710; Royston, Rayzor, Vickery, & Williams, LLP v. Lopez, 467 S.W.3d 494, 504 (Tex.
2015); M.A. Mills, P.C. v. Kotts, 640 S.W.3d 323, 331 (Tex. App.--Houston [14th Dist.] 2022,
pet. denied).
The trial court's erroneous granting of Pohl's motion constituted harmful error, not only because
it prevented Kassab from pursuing those claims at trial, but also because it impacted the
evidence of barratry that Kassab could present and which would have undoubtedly changed the
course of the proceedings, as demonstrated previously, and led to the jury's erroneous
conclusion that Pohl was not responsible for his damages.
CONCLUSION AND PRAYER
The Court should reverse and render judgment in favor of Kassab, or, alternatively, reform the
judgment to reduce the damages awarded, or, alternatively, remand for new trial on Pohl's
claims against Kassab. Either way, the Court should reverse the trial court's dismissal of
Kassab's counterclaims for barratry and remand for further proceedings.
ALEXANDER DUBOSE & JEFFERSON, LLP
/s/ Kevin Dubose [*94]
Kevin Dubose
37 Moreover, res judicata only applies to claims that arise out of the same ""transaction, or series of connected transactions, out of
which the action arose."" Barr v. Resolution Trust Corp., 837 S.W.2d 627, 631 (Tex. 1992). Here, Pohl argued that the barratry
claims ""do not arise out of the same transaction or occurrence as Pohl's claims."" 1CR393.
Page 39 of 40
2025 TX APP. CT. BRIEFS LEXIS 119, *94
kdubose@adjtlaw.com
Texas State Bar No. 06150500
Marisa C. Hurd
mhurd@adjtlaw.com
Texas State Bar No. 24041157
1844 Harvard Street
Houston, Texas 77008
Phone (713) 523-0667
Facsimile (713) 522-4553
THE KASSAB LAW FIRM
/s/ David Eric Kassab
David Eric Kassab
Texas State Bar No. 24071351
Lance Christopher Kassab
Texas State Bar No. 00794070
1214 Elgin Street
Houston, Texas 77004
Telephone: (713) 522-7400
E-service: eserve@kassab.law
ATTORNEYS FOR APPELLANTS
CERTIFICATE OF COMPLIANCE
Based on a word count run in Microsoft Word, this brief contains 16,655 words (excluding the
items exempted under Texas Rule of Appellate Procedure 9.4(i)(1)).
/s/ David Eric Kassab
David Eric Kassab
CERTIFICATE OF SERVICE
I certify that on January 6, 2025, I electronically filed this brief with the Clerk of the Court using
the eFile.TXCourts.gov electronic filing system which will send notification of such filing to all
counsel of record.
/s/ David Eric Kassab
David Eric Kassab
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this [*95] 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.
Page 40 of 40
2025 TX APP. CT. BRIEFS LEXIS 119, *95
David Kassab
Bar No. 24071351
david@kassab.law
Envelope ID: 95910556
Filing Code Description: Brief Requesting Oral Argument
Filing Description: Appellants' Brief
Status as of 1/7/2025 8:36 AM CST
Associated Case Party: LanceChristopherKassab[SEE IMAGE IN ORIGINAL]
Associated Case Party: MichaelA.Pohl[SEE IMAGE IN ORIGINAL]
Associated Case Party: Law Office of Michael A. Pohl, PLLC[SEE IMAGE IN ORIGINAL]
[SEE APPENDIX TAB 1 IN ORIGINAL]
[SEE APPENDIX TAB 2 IN ORIGINAL]
[SEE APPENDIX TAB 3 IN ORIGINAL]
[SEE APPENDIX TAB 4 IN ORIGINAL]
[SEE APPENDIX TAB 5 IN ORIGINAL]
[SEE APPENDIX TAB 6 IN ORIGINAL]
[SEE APPENDIX TAB 7 IN ORIGINAL]
[SEE APPENDIX TAB 8 CHARGE OF THE COURT IN ORIGINAL]
[SEE APPENDIX TAB 9 IN ORIGINAL]
[SEE APPENDIX TAB 10 FINAL JUDGMENT IN ORIGINAL]
[SEE EXHIBIT 1 IN ORIGINAL]
End of Document"
7,2022-12-01,2022-12-01 ORD Trial-Reset-and-Favre-Depo-Scheduling SIGNED,trial-court,2022-12-01_ORD_Trial-Reset-and-Favre-Depo-Scheduling_SIGNED.pdf,"Pohl v. Favre
District Court of Texas, 189th Judicial District, Harris County
December 1, 2022, Decided; December 1, 2022, Filed
CAUSE NO. 2018-58419
Reporter
2022 Tex. Dist. LEXIS 8705 *
POHL, MICHAEL, Plaintiff(s) v. FAVRE,
/s/ [Signature]
SCOTT, Defendant(s)
Hon. SCOT DOLLINGER
Notice: [EDITOR'S NOTE: THIS ORDER HAS
BEEN SIGNED BY THE JUDGE, BUT Judge, 189th District Court
SIGNATURE TEXT WAS ILLEGIBLE IN THE
ORIGINAL DOCUMENT AND THEREFORE
End of Document
THE JUDGE'S NAME IS NOT DISPLAYED.]
Opinion
[*1] ORDER
This case is taken off the court's December 5,
2022 trial docket and reset preferentially to
April 3, 2023. A time for pretrial conference
shall be set.
The parties shall confer about what work
needs to be done by this court during the
remainder of this year and what additional
work needs to be done to be ready for trial in
April 2023 and prepare a revised agreed
docket control order for the court's signature.
The deposition of Scott Favre shall go forward
on Wednesday, December 7, 2022 at 9:30
a.m. via zoom and the parties shall work with
Mr. Favre's counsel, Mr. Wade, on the logistics
of the deposition and get it completed next
week. If health issues require spreading the
deposition over a number of days, so be it.
The parties shall work in good faith to
complete the deposition.
Signed December 1, 2022"
6,2022-11-29,2022-11-29 ORD Pohl-Nonsuit-Favre-and-Precision-Marketing SIGNED,trial-court,2022-11-29_ORD_Pohl-Nonsuit-Favre-and-Precision-Marketing_SIGNED.pdf,"Michael A. Pohl & Law Office of Michael A. Pohl v. Favre
District Court of Texas, 189th Judicial District, Harris County
November 29, 2022, Decided
CAUSE NO. 2018-58419
Reporter
2022 Tex. Dist. LEXIS 8550 *
MICHAEL A. POHL AND LAW OFFICE OF
Respectfully submitted,
MICHAEL A. POHL, PLLC, Plaintiffs, v.
SCOTT FAVRE and SCOTT M. FAVRE PA, REYNOLDS FRIZZELL LLP
LLC; PRECISION MARKETING GROUP, LLC;
By: /s/ Jean C. Frizzell
LANCE CHRISTOPHER KASSAB and LANCE
CHRISTOPHER KASSAB, P.C. d/b/a THE
Jean C. Frizzell
KASSAB LAW FIRM; TINA NICHOLSON and
BAKER NICHOLSON, LLP d/b/a BAKER State Bar No. 07484650
NICHOLSON LAW FIRM; and DOUGLAS
1100 Louisiana St., Suite 3500
MONTAGUE III and MONTAGUE PITTMAN &
VARNADO, P.A., Defendants.
Houston, Texas 77002
Notice: [EDITOR'S NOTE: THIS ORDER HAS Tel. 713.485.7200
BEEN SIGNED BY THE JUDGE, BUT
SIGNATURE TEXT WAS ILLEGIBLE IN THE Fax 713.485.7250
ORIGINAL DOCUMENT AND THEREFORE
jfrizzell@reynoldsfrizzell.com
THE JUDGE'S NAME IS NOT DISPLAYED.]
Attorney for Plaintiffs Michael Pohl and
Opinion
Law Office of Michael A. Pohl, PLLC
The court acknowledges the nonsuit and
RULE 162 [*1] NOTICE OF NON-SUIT OF dismisses the nonsuited parties identified
DEFENDANTS SCOTT FAVRE; SCOTT M. herein.
FAVRE PA, LLC; AND PRECISION
Signed: 11/29/2022
MARKETING GROUP, LLC
/s/ [Signature]
Pursuant to Texas Rule of Civil Procedure
162, Plaintiffs Michael Pohl and Law Offices of
PRESIDING JUDGE
Michael A. Pohl gives notice of their nonsuit
without prejudice as to all claims pending
against Defendants Scott Favre; Scott M. End of Document
Favre PA, LLC; and Precision Marketing
Group, LLC. This notice of nonsuit does not
nonsuit or dismiss any other party or any claim
or cause of action against any other party.
Dated: November 21, 2022"
4,2022-11-28,2022-11-28 ORD Denying-Kassab-MFC-and-Trial-Scheduling SIGNED,trial-court,2022-11-28_ORD_Denying-Kassab-MFC-and-Trial-Scheduling_SIGNED.pdf,"Michael A. Pohl & Law Office of Michael A. Pohl v. Favre
District Court of Texas, 189th Judicial District, Harris County
November 28, 2022, Decided
CAUSE NO. 2018-58419
Reporter
2022 Tex. Dist. LEXIS 8893 *
MICHAEL A. POHL AND LAW OFFICE OF
Parties may take the deposition of Scott Favre
MICHAEL A. POHL, PLLC, Plaintiffs, v.
this week.
SCOTT FAVRE and SCOTT M. FAVRE PA,
LLC; PRECISION MARKETING GROUP, LLC; Parties shall set motion for responsible third
LANCE CHRISTOPHER KASSAB and LANCE party this week - contact the court's Lead Clerk
CHRISTOPHER KASSAB, P.C. d/b/a THE - Dee Mosley 832-927-2325
KASSAB LAW FIRM; TINA NICHOLSON and Deandra.Mosley@hcdistrictclerk.com
BAKER NICHOLSON, LLP d/b/a BAKER
Parties shall discuss best time to hold pretrial
NICHOLSON LAW FIRM; and DOUGLAS
conference - this week, December 5th,
MONTAGUE III and MONTAGUE PITTMAN &
December 6th. The court is prepared to pick a
VARNADO, P.A., Defendants.
jury December 5th or December 6th. The court
Notice: [EDITOR'S NOTE: THIS ORDER HAS is not opposed to pretrial conference this
BEEN SIGNED BY THE JUDGE, BUT week.
SIGNATURE TEXT WAS ILLEGIBLE IN THE
SIGNED on 28 November, 2022.
ORIGINAL DOCUMENT AND THEREFORE
THE JUDGE'S NAME IS NOT DISPLAYED.] Signed: 11/28/2022
Opinion 9:46 AM
/s/ [Signature]
JUDGE PRESIDING
[*1] ORDER
On this day, the Court heard Defendants
End of Document
Lance Christopher Kassab; and Lance
Christopher Kassab P.C.'s Motion for
Continuance (the ""Motion""). After considering
the Motion, Plaintiffs' response in opposition,
any replies, any evidence and pleadings on
file, and the arguments of counsel, if any, the
Court DENIES the Motion. It is therefore,
ORDERED that the Motion is DENIED. It is
finally,
ORDERED that this case will proceed, as
preferentially set, to trial."
5,2022-11-28,2022-11-28 ORD Denying-Kassab-MTC-Offensive-Use-Doctrine SIGNED,trial-court,2022-11-28_ORD_Denying-Kassab-MTC-Offensive-Use-Doctrine_SIGNED.pdf,"Pohl v. Favre
District Court of Texas, 189th Judicial District, Harris County
November 28, 2022, Decided; November 28, 2022, Filed
CAUSE NO. 2018-58419
Reporter
2022 Tex. Dist. LEXIS 8819 *
of the above motion and outstanding ruling at
POHL, MICHAEL, Plaintiff(s) v. FAVRE,
oral hearing held this date on Defendant's
SCOTT, Defendant(s)
motion for continuance and thereafter made
Notice: [EDITOR'S NOTE: THIS ORDER HAS prompt ruling.
BEEN SIGNED BY THE JUDGE, BUT
Signed November 28, 2022
SIGNATURE TEXT WAS ILLEGIBLE IN THE
ORIGINAL DOCUMENT AND THEREFORE /s/ [Signature]
THE JUDGE'S NAME IS NOT DISPLAYED.]
Hon. SCOT DOLLINGER
Opinion
Judge, 189th District Court
End of Document
[*1] ORDER
Pending is THE KASSAB DEFENDANTS'
MOTION TO COMPEL TESTIMONY AND
DOCUMENTS PURSUANT TO THE
OFFENSIVE USE DOCTRINE.
Motion DENIED.
To the extent any party desires a ruling from
the court which has not been made to date
and the hearing has taken place, the party
shall alert the court's Lead Clerk that the party
still needs a ruling on a motion. In bringing this
matter to the Lead Clerk's attention, the party
shall identify the exact name of the motion, the
date it was filed, the date any response was
filed and the date of the hearing. Provided the
party complies with this ORDER, the court will
make rulings no later than Thursday,
December 1, 2022.
The court is not aware of any outstanding
rulings on motions filed as of this date and
hearings have been heard. The court learned"
3,2021-12-16,2021-12-16 ORD Deny-Kassab-MTC-Discovery SIGNED,trial-court,2021-12-16_ORD_Deny-Kassab-MTC-Discovery_SIGNED.pdf,"Michael A. Pohl & Law Office of Michael A. Pohl v. Favre
District Court of Texas, 189th Judicial District, Harris County
December 16, 2021, Decided
CAUSE NO. 2018-58419
Reporter
2021 Tex. Dist. LEXIS 17930 *
Kassab Law Firm's Motion is DENIED. *
MICHAEL A. POHL AND LAW OFFICE OF
MICHAEL A. POHL, PLLC, Plaintiffs, v.
December 16 2021.
SCOTT FAVRE and SCOTT M. FAVRE PA,
LLC; PRECISION MARKETING GROUP, LLC; /s/ [Signature]
LANCE CHRISTOPHER KASSAB and LANCE
JUDGE PRESIDING
CHRISTOPHER KASSAB, P.C. d/b/a THE
KASSAB LAW FIRM; TINA NICHOLSON and
*The denial is without prejudice.
BAKER NICHOLSON, LLP d/b/a BAKER
NICHOLSON LAW FIRM; and DOUGLAS The parties are ORDERED to meet and confer
MONTAGUE III and MONTAGUE PITTMAN & over these discovery requests. Once the
VARNADO, P.A., Defendants. parties have conferred and narrowed the
issues for the court to consider, Defendant
Notice: [EDITOR'S NOTE: THIS ORDER HAS may file an amended motion to compel and set
BEEN SIGNED BY THE JUDGE, BUT for an oral special hearing. A special hearing is
SIGNATURE TEXT WAS ILLEGIBLE IN THE one set for Tuesday, Wednesday, Thursday or
ORIGINAL DOCUMENT AND THEREFORE Friday, but not Monday. The court is willing to
THE JUDGE'S NAME IS NOT DISPLAYED.] allocate 2 hours to hearing those remaining
discovery issues -- the # of issues at this point
Opinion
is too great to have a Monday Law Day
hearing where the court allocates about 20
minutes to discovery disputes. As well, [*2] it
appears in the response that many of these
[*1] ORDER
discovery issues are being or have been
On this day, the Court considered Defendants addressed such that court intervention is no
Lance Christopher Kassab and Lance longer needed.
Christopher Kassab, P.C, d/b/a The Kassab
Law Firm's Motion to Compel Removal of
End of Document
Objections and Properly Respond to Discovery
and Request for Costs (the ""Motion""). After
considering the Motion, the response, any
reply, any evidence and pleadings on file, and
the arguments of counsel, if any, the Court
DENIES the Motion.
Therefore, the Court ORDERS that
Defendants Lance Christopher Kassab and
Lance Christopher Kassab, P.C, d/b/a The"
2,2021-08-03,2021-08-03 ORD Denying-Kassab-Traditional-MSJ SIGNED,trial-court,2021-08-03_ORD_Denying-Kassab-Traditional-MSJ_SIGNED.pdf,"Pohl v. Favre
District Court of Texas, 189th Judicial District, Harris County
August 3, 2021, Decided; August 3, 2021, Filed
CAUSE NO. 2018-58419
Reporter
2021 Tex. Dist. LEXIS 5999 *
POHL, MICHAEL, Plaintiff(s) v. FAVRE,
SCOTT, Defendant(s)
Judges: [*1] Hon. SCOT DOLLINGER,
Judge, 189th District Court.
Opinion by: SCOT DOLLINGER
Opinion
ORDER
Pending is LANCE CHRISTOPHER KASSAB
AND LANCE CHRISTOPHER KASSAB, PC'S
TRADITIONAL MOTION FOR SUMMARY
JUDGMENT.
Motion DENIED.
Signed August 3, 2021.
/s/ Scot Dollinger
Hon. SCOT DOLLINGER
Judge, 189th District Court
End of Document"
1,2021-08-02,2021-08-02 ORD Grant-Pohl-Mtn-to-Depose-Defs SIGNED,trial-court,2021-08-02_ORD_Grant-Pohl-Mtn-to-Depose-Defs_SIGNED.pdf,"Michael A. Pohl & Law Office of Michael A. Pohl v. Favre
District Court of Texas, 189th Judicial District, Harris County
August 2, 2021, Decided
CAUSE NO. 2018-58419
Reporter
2021 Tex. Dist. LEXIS 6769 *
shall each sit for a deposition prior to any
MICHAEL A. POHL AND LAW OFFICE OF
deposition of any Plaintiff or of a
MICHAEL A. POHL, PLLC, Plaintiffs, v.
representative of any Plaintiff. It is finally
SCOTT FAVRE and SCOTT M. FAVRE PA,
LLC; PRECISION MARKETING GROUP, LLC;
ORDERED that the Individual Defendants
LANCE CHRISTOPHER KASSAB and LANCE
shall work in good faith to schedule their
CHRISTOPHER KASSAB, P.C. d/b/a THE
depositions within 60 days of the date of this
KASSAB LAW FIRM; TINA NICHOLSON and
order.
BAKER NICHOLSON, LLP d/b/a BAKER
NICHOLSON LAW FIRM; and DOUGLAS SIGNE on , 2021.
MONTAGUE III and MONTAGUE PITTMAN &
Signed: /s/ [Signature]
VARNADO, P.A., Defendants.
8/2/2021
Notice: [EDITOR'S NOTE: THIS ORDER HAS
BEEN SIGNED BY THE JUDGE, BUT JUDGE PRESIDING
SIGNATURE TEXT WAS ILLEGIBLE IN THE
ORIGINAL DOCUMENT AND THEREFORE
THE JUDGE'S NAME IS NOT DISPLAYED.] End of Document
Opinion
[*1] ORDER
On this day came to be heard Plaintiffs' Motion
to Depose Defendants (the ""Motion"") against
Defendants Lance Kassab, Tina Nicholson,
and Scott Favre (the ""Individual Defendants"").
The Court, having reviewed the Motion, the
pleadings, the evidence submitted in support
thereof, and the arguments of counsel, if any,
finds that the Motion should be GRANTED.
It is therefore ORDERED, ADJUDGED, AND
DECREED that the Motion is GRANTED. It is
further
ORDERED that the Individual Defendants"
15,2021-02-26,2021-02-26 ORD SCOTX-Petition-for-Review-Denied SIGNED,appellate,2021-02-26_ORD_SCOTX-Petition-for-Review-Denied_SIGNED.pdf,"Kassab v. Pohl
Supreme Court of Texas
February 26, 2021, Order Pronounced
20-0874
Reporter
2021 Tex. LEXIS 154 *
LANCE CHRISTOPHER KASSAB AND
LANCE CHRISTOPHER KASSAB, P.C. D/B/A
THE KASAB LAW FIRM v. MICHAEL A.
POHL, ET AL
Notice: DECISION WITHOUT PUBLISHED
OPINION
Prior History: From Harris County; 1st Court
of Appeals District (01-18-01143-CV, 612
S.W.3d 571, 09-17-20 [*1] ).
Kassab v. Pohl, 612 S.W.3d 571, 2020 Tex.
App. LEXIS 7560, 2020 WL 5552459 (Tex.
App. Houston 1st Dist., Sept. 17, 2020)
Opinion
PETITION FOR REVIEW DENIED: 2 petitions.
End of Document"
14,2020-12-21,2020-12-21 PET Kassab-Petition-for-Review-SCOTX FILED,appellate,2020-12-21_PET_Kassab-Petition-for-Review-SCOTX_FILED.pdf,"FILED
20-0874
12/21/2020 7:03 PM
tex-49151702
SUPREME COURT OF TEXAS
BLAKE A. HAWTHORNE, CLERK
No. 20-0874
IN THE SUPREME COURT OF TEXAS
LANCE CHRISTOPHER KASSAB AND LANCE CHRISTOPHER
KASSAB, PC D/B/A THE KASSAB LAW FIRM
Petitioners,
MICHAEL POHL AND LAW OFFICE OF MICHAEL A. POHL, PLLC
Respondents.
On Review from the First Court of Appeals
No. 01-18-01143-CV
KASSAB PETITIONERS’ PETITION FOR REVIEW
Lance Christopher Kassab
State Bar No. 00794070
lance@kassab.law
David Eric Kassab
State Bar No. 24071351
david@kassab.law
THE KASSAB LAW FIRM
1214 Elgin Street
Houston, Texas 77004
Phone (713) 522-7400
Facsimile (713) 522-7410
Attorneys for Petitioners Lance Christopher Kassab
and The Kassab Law Firm
IDENTITY OF PARTIES AND COUNSEL
Petitioners: Lance Christopher Kassab and Lance Christopher
Kassab PC, d/b/a The Kassab Law Firm
Counsel for Petitioners: Lance Christopher Kassab
David Eric Kassab
THE KASSAB LAW FIRM
1214 Elgin Street
Houston, Texas 77004
Trial and Appellate Counsel
Kevin Dubose
ALEXANDER DUBOSE & JEFFERSON LLP
1844 Harvard St.
Houston, Texas 77008
Appellate Counsel at Court of Appeals
George “Buck” Cire
THE CIRE LAW FIRM
1770 Saint James Place Suite 350,
Houston, Texas 77057
Trial Counsel
Petitioners: Tina Nicholson and Baker Nicholson, LLP d/b/a
Baker Nicholson Law Firm
Counsel for Petitioners: Jessica Z. Barger
E. Marie Jamison
WRIGHT CLOSE & BARGER, LLP
One Riverway, Suite 2200
Houston, Texas 77056
Appellate Counsel
Chris C. Pappas
Andrew J. Sarne
KANE RUSSELL COLEMAN LOGAN PC
5051 Westheimer Road, Suite 1000
Houston, Texas 77056
Trial and Appellate Counsel
Respondents: Michael Pohl and Law Office of Michael A. Pohl,
PLLC
Counsel for Respondents: Solace Kirkland Southwick
REYNOLDS FRIZZELL LLP
1100 Louisiana St., Suite 3500
Houston, Texas 77002
Appellate Counsel
Jean C. Frizzell
REYNOLDS FRIZZELL LLP
1100 Louisiana St., Suite 3500
Houston, Texas 77002
Trial Counsel
Other Parties: Scott Favre, Scott M. Favre Public Adjuster, LLC
and Precision Marketing Group, LLC
Counsel for Other Parties: Todd Taylor
Jocelyn A. Holland
JOHANSON & FAIRLESS
1456 First Colony Boulevard
Sugar Land, Texas 77479
Former Counsel at Appellate Court (motion to
withdraw pending)
Other Parties: F. Douglas Montague III and Montague Pittman &
Varnado, P.A.
Counsel for Other Parties: Dale Jefferson
Raul Suazo
Kevin Cain
MARTIN, DISIERE, JEFFERSON & WISDOM, LLP
808 Travis Street, 20th Floor
Houston, Texas 77002
Trial Counsel
TABLE OF CONTENTS
Identity of Parties and Counsel .................................................................................. i
Table of Contents ..................................................................................................... iii
Index of Authorities ................................................................................................. iv
Statement of the Case ................................................................................................ 1
Statement of Jurisdiction ........................................................................................... 2
Issue Presented .......................................................................................................... 3
Reasons to Grant the Petition .................................................................................... 4
Statement of the Facts ............................................................................................... 5
Summary of Argument ........................................................................................... 10
Argument................................................................................................................. 11
A. The court of appeals broadly applied the commercial-speech
exemption to conduct that merely leads to the subsequent sale of
services rather than to conduct arising out of the sale of services ......... 12
B. The court of appeals should have followed Castleman rather than
distinguishable opinions from other courts . .......................................... 18
Prayer for Relief ...................................................................................................... 22
Certificate of Compliance ....................................................................................... 23
Certificate of Service .............................................................................................. 23
Index of Appendix .................................................................................................. 24
iii
INDEX OF AUTHORITIES
Cases Page(s)
ADB Interest, LLC v. Wallace,
606 S.W.3d 413 (Tex. App.—Houston [1st Dist.] 2020, pet. filed) ................. 12
Bos v. Smith,
556 S.W.3d 293 (Tex. 2018) ............................................................................. 13
Castleman v. Internet Money Ltd.,
546 S.W.3d 684 (Tex. 2018) ......................................................................passim
Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC,
591 S.W.3d 127 (Tex. 2019) ............................................................................... 2
Dickens v. Jason C. Webster, P.C.,
2018 Tex. App. LEXIS 10893
(Tex. App. – Dallas, Dec. 31, 2018, no pet. h.) ............................................ 15
Kassab v. Pohl,
2020 Tex. App. LEXIS 7560, 2020 WL 5552459
(Tex. App.—Houston [1st Dist.] Sept. 17, 2020, pet. filed) ......................passim
MacFarland v. Le-Vel Brands LLC,
2017 Tex. App. LEXIS 2569, 2017 WL 1089684
(Tex. App.—Dallas Mar. 23, 2017, no pet.) ................................................ 15, 16
Miller Weisbrod, L.L.P. v. Llamas-Soforo,
511 S.W.3d 181 (Tex. App.—El Paso 2014, no pet.) ........................... 19, 20, 21
NCDR, L.L.C. v. Mauze & Bagby, P.L.L.C.,
745 F.3d 742 (5th Cir. 2014) ................................................................. 19, 20, 21
Schimmel v. McGregor,
438 S.W.3d 847 (Tex. App.—Houston [1st Dist.] 2014, pet. denied) ........ 17, 21
State ex rel. Best v. Harper,
562 S.W.3d 1 (Tex. 2018) .................................................................................. 12
Toth v. Sears Home Improvement Products, Inc.,
557 S.W.3d 142 (Tex. App.—Houston [14th Dist.] 2018, no pet.) .................. 16
Rules
Texas Disciplinary Rule of Professional Conduct
R. 8.03(a) .............................................................................................................. 8
Statutes
Texas Civil Practice & Remedies Code
§ 27.005(a) ............................................................................................................ 1
§ 27.008(a) ............................................................................................................ 1
§ 27.010(b) .................................................................................................... 10, 11
Texas Government Code
§ 22.001(a) ............................................................................................................ 2
Texas Penal Code
§ 38.12 ................................................................................................................... 5
STATEMENT OF THE CASE
Nature of the Case: This is a Texas Citizens Participation Act (“TCPA”) case
concerning the applicability of the commercial-speech
exemption. Pohl1 is a lawyer who filed a retaliatory lawsuit
against Kassab2 and others3 for theft of trade secrets,
conversion, and civil conspiracy. 1CR4-27; 2CR890-903;4
App. Tab 1.5
Trial Court: 189th Judicial District Court of Harris County, Texas; the
Honorable Judge Scot Dollinger.
Trial Court Kassab moved to dismiss the claims pursuant to the TCPA.
Disposition: 1CR62-679; 3SCR6-90;1RR1-45. The trial court failed to
rule on the motion within 30 days, as required by statute,
TEX. CIV. PRAC. & REM. CODE § 27.005(a), so the motion
was denied by operation of law. Id. at § 27.008(a).
Court of Appeals: The First Court of Appeals in Houston affirmed denial of
the motion to dismiss. Kassab v. Pohl, 2020 Tex. App.
LEXIS 7560, 2020 WL 5552459 (Tex. App.—Houston [1st
Dist.] Sept. 17, 2020, pet. filed). The opinion was authored
by Justice Sarah Beth Landau, which was joined by Chief
Justice Sherry Radack and Justice Richard Hightower.
Court of Appeals The court of appeals affirmed, reasoning that the
Disposition: commercial-speech exemption applied. App. Tab 2
(opinion); App. Tab 3 (judgment).
1 Respondents Michael Pohl and Law Office of Michael A. Pohl, PLLC.
2 Petitioners Lance Christopher Kassab and Law Offices of Lance Christopher Kassab, PC.
3 Petitioners Tina Nicholson, Baker Nicholson, LLP d/b/a Baker Nicholson Law Firm, Scott Favre,
Scott M. Favre Public Adjuster, LLC and Precision Marketing Group, LLC and nonparties F.
Douglas Montague III and Montague Pittman & Varnado, P.A.
4 References to the Clerk’s Record are made herein as “[volume]CR[page(s)]” and designations to
the Supplemental Clerk’s Record are made herein as “[volume]SCR[page(s)].”
5 References to the attached Appendix are “App. [tab number].”
STATEMENT OF JURISDICTION
This Court has jurisdiction because this appeal presents legal questions of
substantial importance to the jurisprudence of the State and statutory interpretation
questions under the TCPA.6 See TEX. GOV’T CODE § 22.001(a). The court of appeals’
interpretation and application of the commercial-speech exemption conflicts with
both the statute and this Court’s opinion in Castleman v. Internet Money Ltd., 546
S.W.3d 684 (Tex. 2018). The court of appeals’ decision reflects increasing discord
regarding the proper application of the commercial-speech exemption. This Court
should grant review to provide clarity regarding this frequently litigated statutory
exemption.
6 The TCPA was amended after this lawsuit was filed, but the prior version controls this case. See
Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC, 591 S.W.3d 127, 129 (Tex. 2019).
Accordingly, all citations will be the prior version of the TCPA, a copy of which is attached hereto
in App. Tab 4.
ISSUE PRESENTED
Does the court of appeals opinion conflict with Castleman v. Internet Money
Ltd., 546 S.W.3d 684 (Tex. 2018) to erroneously conclude that the commercial-
speech exemption applied to Pohl’s claims against Kassab?
REASONS TO GRANT THE PETITION
In 2018, this Court noted that “Texas courts of appeals are divided on the
proper construction of the commercial-speech exemption,” which it described as “no
model of clarity.” Castleman v. Internet Money Ltd., 546 S.W.3d 684, 688 (Tex.
2018). Although Castleman resolved a key point of disagreement among the courts
at that time, in the years since the opinion, courts have again diverged regarding the
application of the often-raised exemption. Here the court of appeals did so by court
concluding that conduct merely leading to the subsequent sale of services is
sufficient to invoke the commercial-speech exemption. In other words, the lower
courts concluded that the conduct at issue did not need to “arise out of” a commercial
transaction involving the kind of goods or services that the defendant provides but
could occur before the services being provided take place. The Court should grant
review to correct this over-expansive interpretation of the commercial-speech
exemption. Without review, the opinion will have a grave effect on future Texas
jurisprudence.
STATEMENT OF THE FACTS
In October 2014, three non-lawyer Mississippi residents, Scott Walker
(“Walker”), Kirk Ladner (“Ladner”) and Steve Seymour (“Seymour”), and their
related entities, including Precision Marketing Group, LLC (“Precision”), filed suit
against Pohl and others in Mississippi federal court (the “Mississippi Litigation”).7
1CR117-168. There, Precision, Walker, Ladner and Seymour alleged that: (1) they
had a joint venture with Pohl to sign up clients with economic loss claims stemming
from the BP Deepwater Horizon oil spill and clients involved in tragic auto
accidents; (2) that they successfully obtained these clients for Pohl; and (3) that Pohl
breached their agreement by not paying them their agreed-upon fee, including their
agreed share of Pohl’s attorney’s fees for referring these clients to Pohl. 1CR148,
153.
The evidence presented in the Mississippi Litigation established that Pohl
engaged in barratry. See TEX. PEN. CODE § 38.12 (defining barratry generally as the
improper solicitation of clients). During that litigation, Walker testified that Pohl
retained him and Precision to “provide marking services to auto accident victims[.]”
1CR171. Walker testified that although he and Pohl called it “marketing services”
7 Cause No. 14-cv-381-KS-JCG; Scott Walker, et al. v. Michael A. Pohl, et al.; In the United States
District Court for the Southern District of Mississippi, Southern Division.
or “marketing money,” it was “clear to [him] it was barratry.” 1CR178. In fact,
Walker considered himself and his company “a pass-through for barratry money.”
1CR179. All told, Walker, Ladner and Precision received over $5 million in
“barratry pass-through money” from Pohl and other lawyers to solicit potential
clients, both auto-accident victims and those involved in the BP litigation. 1CR176.
The runners used this money to pay contract workers to solicit clients. 1CR179. The
runners would locate and instruct contract workers on how to accomplish the
solicitation. 1CR177. The runners trained “40 or 50 people” on how to “go out and
solicit contracts” on behalf of Pohl. 1CR179.
In May 2016, during the Mississippi Litigation, an insurance adjuster named
Scott Favre (“Favre”) purchased Precision and all the company’s assets, including
Precision’s claims against Pohl in the Mississippi Litigation. 1CR640; 3SCR137.
Favre and Precision were represented in the Mississippi Litigation by Texas lawyer,
Tina Nicholson, and her firm, Baker Nicholson, LLP (“Nicholson”). 1CR8, 110,
342. Pohl asserted counterclaims in the Mississippi Litigation alleging that Walker
and Precision (and other unknown defendants) converted his property. 3SCR16-18.
Most notably, Pohl moved to dismiss the claims against him, admitting that
the agreements between him and the runners were illegal and unenforceable.
1CR336-339. Specifically, Pohl argued that under both Texas and Mississippi law
“it is illegal for a non-lawyer to accept or agree to accept money to improperly solicit
clients for a lawyer.” 1CR338. The Mississippi federal court rejected Pohl’s
contention, stating that the agreements to solicit clients would only be a violation of
Texas law and Texas disciplinary rules, which did not apply to Precision, a
Mississippi company, and Walker and Ladner, Mississippi residents. 1CR349-350.
After failing to obtain summary dismissal, Pohl settled the Mississippi Litigation
with all parties, including Favre and Precision, hoping to forever conceal his barratry
operation. 1CR353-354.
Lance Christopher Kassab (“Kassab”) is a licensed Texas attorney who has
been practicing law for almost twenty-five years. 1CR109. Kassab graduated from
law school with honors and was editor-in-chief of law review. Id. Kassab is a former
intern and briefing attorney for this Court and a former intern for the Texas Supreme
Court. Id. For more than twenty years, Kassab’s practice has focused primarily on
representing victims of legal malpractice and publicly exposing attorney
misconduct. Id.
Kassab was tipped off to the allegations in the Mississippi Litigation by an
acquaintance, F. Douglas Montague of the Mississippi law firm Montague Pittman
& Varnado, PA (“Montague”), who was also an acquaintance of Favre and
Nicholson. 1CR109-110. Kassab obtained information related to the Mississippi
Litigation from the federal court’s online system, PACER. 1CR110. Kassab also
associated Precision and its owner, Favre, and its counsel, Nicholson, and obtained
information from them, including the names and addresses of Pohl’s former clients
or prospective clients. 1CR109-110. Kassab used the marketing lists he obtained to
legally notify individuals he believed were victims of unethical conduct. 1CR110.
Hundreds of individuals responded, indicating they had been personally solicited to
hire Pohl relating to their auto accident or BP claims. Id. Kassab agreed to represent
these clients, and more than 400 individuals hired Kassab to represent them against
Pohl. Id.
Kassab filed four petitions on behalf of these barratry victims in Harris
County, Texas (the “barratry lawsuits”). 1CR379-576. These petitions
communicated matters of public concern: that Pohl conspired to commit unethical
solicitation known as barratry. See id.; see also 1CR110. After reviewing the
evidence obtained from the Mississippi Litigation, Kassab believed he had a duty to
file a grievance against Pohl,8 and he did. Id. Kassab also filed a grievance against
Pohl on behalf of one of his clients. Id. In the grievances, Kassab and his client
expressed matters of public concern relating to Pohl’s legal services in the
marketplace and petitioned the State Bar of Texas to reprimand and discipline Pohl
in order to protect the citizens of Texas and other states. Id.; see also 1CR 578-638.
8 See TEX. DISC. R. PROF’L COND. 8.03(a) (except in circumstances which do not apply here, “a
lawyer having knowledge that another lawyer has committed a violation of applicable rules of
professional conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness
or fitness as a lawyer in other respects, shall inform the appropriate disciplinary authority.”).
Thereafter, Pohl sued Kassab, Precision, Nicholson, Favre and Montague,
alleging breach of contract, theft of trade secrets, conversion and civil conspiracy.
App. Tab 1; 1CR4-14; 2CR890-903. Specifically, Pohl alleged that these parties
were “acting in combination with the agreed objective” to misappropriate his trade
secrets and convert the marketing lists and attorney-client contracts that Precision
obtained. See id. Pohl alleges Favre and Precision, with Nicholson’s assistance,
converted this property and provided it to Kassab and Montague in order to convince
Pohl’s former clients “to bring cases against Pohl for alleged barratry and other
claims.” 2CR898.
Kassab denied the allegations and immediately moved to dismiss the lawsuit
pursuant to the TCPA. 1CR75-679; 3SCR6-90. Nicholson and Favre then filed their
own motions to dismiss based on the TCPA. 2CR 867-880; 3SCR136-223. The
timely hearing was conducted on Kassab’s motion to dismiss. 1RR. The trial court
did not rule on the motion within thirty days and the motion was denied by operation
of law. TEX. CIV. PRAC. & REM. CODE § 27.008(a). Kassab, Nicholson and Favre
appealed, but the court of appeals affirmed, concluding that the commercial-speech
exemption applied. See Kassab v. Pohl, 2020 Tex. App. LEXIS 7560, 2020 WL
5552459, at *21-22 (Tex. App.—Houston [1st Dist.] Sept. 17, 2020, pet. filed).
SUMMARY OF ARGUMENT
The court of appeals erred by interpreting and applying the commercial-
speech exemption broadly when exemptions to the TCPA are to be narrowly
construed and applied.
The commercial-speech exemption plainly applies only when the conduct
forming the basis of the legal action “arises out of” the sale of goods or services or
a commercial transaction in which the intended audience of the defendant’s conduct
is an actual or potential customer of the kind of services that they provide. Castleman
v. Internet Money Ltd., 546 S.W.3d 684, 688 (Tex. 2018); TEX. CIV. PRAC. & REM.
CODE § 27.010(b). Here, it is undisputed that the “conduct on which” Pohl’s claim
is based is the alleged theft or purchase of client lists by Kassab, not the subsequent
provision of legal services by Kassab to his clients or even statements made by
Kassab to potential clients. The alleged misappropriation could not have “arose out
of” legal services provided by Kassab to his clients for simple reason that the
performance of those services occurred after the alleged misappropriation.
Moreover, the “intended audience” of Kassab’s conduct (the alleged theft or
purchase of client lists) was not his usual clients or customers, it was those who
Kassab allegedly purchased the client list from. The court of appeals erred when it
concluded that the commercial-speech exemption is triggered by conduct that merely
leads to the subsequent sale of services and communications to audiences other than
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the defendant’s usual actual or potential customers. Review is warranted to correct
this misconstruction and overly broad application of the commercial-speech
exemption, which is likely to reoccur if not corrected.
ARGUMENT
The commercial-speech exemption provides that the TCPA “does not apply
to a legal action brought against a person primarily engaged in the business of selling
or leasing goods or services, if the statement or conduct arises out of the sale or lease
of goods, services … or a commercial transaction in which the intended audience is
an actual or potential buyer or customer.” TEX. CIV. PRAC. & REM. CODE §
27.010(b). This Court has identified four factors to this exemption:
(1) the defendant (TCPA movant) was primarily engaged in the
business of selling or leasing goods or services;
(2) the defendant made the statement or engaged in the conduct on
which the plaintiff's claim is based in its capacity as a seller or lessor of
those goods and services;
(3) the statement or conduct at issue arose out of a commercial
transaction involving the kind of goods or services that the defendant
provides; and
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(4) the intended audience of the statement or conduct were actual or
potential customers of the defendant for the kind of goods or services
the defendant provides.
Castleman v. Internet Money Ltd., 546 S.W.3d 684, 688 (Tex. 2018) (per curiam).
This exemption is required to be construed and applied narrowly. See ADB Interest,
LLC v. Wallace, 606 S.W.3d 413, 428 (Tex. App.—Houston [1st Dist.] 2020, pet.
filed) (“construing the TCPA liberally means construing its exemption narrowly.”)
(citing State ex rel. Best v. Harper, 562 S.W.3d 1, 14 (Tex. 2018)).
The court of appeals misconstrued these factors and broadly applied the
commercial-speech exemption when it concluded that the exemption applied to
Pohl’s claims against Kassab. Because that misconstruction and overly broad
application of the exemption will likely impact future Texas jurisprudence, further
review is warranted.
A. The court of appeals broadly applied the commercial-speech
exemption to conduct that leads to the subsequent sale of
services rather than to conduct arising out of the sale of
services.
The court of appeals concluded that factor (1) was satisfied because “Kassab
and his firm are in the business of selling legal services” and an attorney’s effort “to
engage prospective clients and provide them with paid legal services meet[s] the first
element of the Castleman test.” Kassab, 2020 Tex. App. LEXIS 7560, at *13. The
court of appeals then concluded that factor (2) was satisfied because “the alleged
12
purchase of Pohl 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.” Id. at *14. But Kassab was
not sued by Pohl for soliciting or advertising to potential clients; he was sued for
alleged theft and conversion of trade secrets. The court of appeals erred when it
liberally construed Pohl’s petition to read into claims which were not there. See Bos
v. Smith, 556 S.W.3d 293, 306 (Tex. 2018) (“a liberal construction does not require
a court to read into a petition what is plainly not there.”) (internal quotations
omitted).
It is true that Kassab is primarily engaged in the business of selling legal
services, but Pohl’s claims against Kassab were based on an alleged transaction or
conduct that occurred before the provision of those legal services. Pohl’s retaliatory
lawsuit alleged conversion, theft of trade secrets and civil conspiracy, claiming that
Kassab and others “engaged in a scheme pursuant to which they illegally obtained,
maintained, and used trade secrets and other confidential information and property
belonging to Pohl.” Kassab, 2020 Tex. App. LEXIS 7560, at *6 (quoting Pohl’s
pleadings). In other words, the “basis for” Pohl’s retaliatory claim is Kassab’s
alleged misappropriation of Pohl’s trade secrets and conversion of property, not
13
Kassab’s solicitation of clients or subsequent provision of legal services to those
clients. 2CR890. Pohl is suing Kassab because Kassab allegedly “wrongfully
exercised dominion and control over Pohl’s property in contravention of Pohl’s
rights” and “willfully and maliciously misappropriated Pohl’s trade secrets by using
them without the express or implied consent of Pohl.” 2CR900-901. Even Pohl
agrees that he did not sue Kassab for solicitation of clients, but “for conversion
because Kassab [allegedly] knowingly purchased confidential information and
materials that were stolen from Pohl.” 1CR690.
Moreover, Pohl repeatedly contends that Kassab’s alleged involvement in the
transaction at issue led to him providing legal services to new clients and filing
barratry lawsuits against Pohl. 1CR695-696 (stating Kassab “purchased Pohl’s list
of clients and former clients, together with the attorney fee contracts for the purpose
of soliciting those clients.”). The court of appeals recognized this, stating Pohl
alleged that Kassab first allegedly engaged in a “conspiracy to steal, sell/buy, and
use the client list for later client solicitation.” Kassab, 2020 Tex. App. LEXIS 7560,
at *15 (emphasis added). But the commercial-speech exemption is not triggered by
conduct that leads to the subsequent sale of services; the exemption applies only to
the conduct arising out of the sale of services. See Castleman, 546 S.W.3d at 688-
89. In fact, Pohl’s allegations of theft and conversion do not at all depend on the
subsequent sale of legal services by Kassab to his clients. 2CR890-903.
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Factor (3) requires that the statement or conduct at issue arise out of a
commercial transaction involving the kind of goods or services the defendant
provides. Castleman, 546 S.W.3d at 688. The court of appeals concluded that this
factor was satisfied because “Kassab’s conduct that is alleged to be tortious involved
the alleged conspiracy to steal, sell/buy, and use the client list for later client
solicitation.” Kassab, 2020 Tex. App. LEXIS 7560, at *15. But Pohl did not sue
Kassab for sending out advertisements or solicitations; he sued Kassab for alleged
conversion and theft of trade secrets. 2CR900-901. Again, Pohl’s allegations of
alleged conversion and theft of trade secrets do not at all depend upon the sale of
legal services by Kassab. 2CR890-903. Those allegations and claims could be made
even absent the sale of legal services by Kassab that occurred after the conduct made
the basis of Pohl’s retaliation claims.
Because the complained of conduct occurred before and did not “arise out of”
any commercial transaction involving the kind of services that Kassab provides, the
commercial exception should not have been applied. See Dickens v. Jason C.
Webster, P.C., No. 05-17-00423-CV, 2018 Tex. App. LEXIS 10893, at *17 (Tex.
App. – Dallas, Dec. 31, 2018, no pet. h.) (commercial speech exception did not apply
to claim alleging attorney tortuously interfered with contingency fee agreement
because claim did “not concern or arise out of [the lawyer’s] services.”);
MacFarland v. Le-Vel Brands LLC, No. 05-16-00672-CV, 2017 Tex. App. LEXIS
15
2569, 2017 WL 1089684, at *9 (Tex. App.—Dallas Mar. 23, 2017, no pet.) (mem.
op.) (exemption not met because statement or conduct at issue was “not about”
defendant’s business of selling services); Toth v. Sears Home Improvement
Products, Inc., 557 S.W.3d 142, 154 (Tex. App.—Houston [14th Dist.] 2018, no
pet.) (“Even before Castleman, courts have held that the exemption is not established
unless the challenged statement was ‘about’ the speaker’s particular goods or
services, or the speaker's business of selling them.”).
Factor (4) requires that the intended audience of the statement or conduct be
actual or potential customers of the defendant for the kind of goods or services the
defendant provides. Castleman, 546 S.W.3d at 688. The court of appeals concluded
that this element was satisfied because “the intended audience of the Kassab[‘s]
statement or conduct were individuals with potential legal claims who Kassab sought
to represent in barratry suits against Pohl” and therefore “were Kassab’s potential
clients to whom he offered the kind of legal services he provides.” Kassab, 2020
Tex. App. LEXIS 7560, at *15-16. But that is not correct. The “conduct” at issue is
Kassab’s alleged theft of trade secrets and purchase of Pohl’s confidential
information, not statements made to potential customers of legal services. See
2CR869 (“Favre and Precision, with the assistance of Nicholson, struck a rich
bargain; Kassab and Montague paid Favre $250,000.00 in cash together with
16
substantial bonuses.”). According to Pohl’s allegations, the “audience” of this
conduct was not Kassab’s clients, but was Favre, Precision and Nicholson. See id.
Kassab is not in the business of purchasing marketing lists; he and his firm
“are in the business of selling legal services.” Kassab, 2020 Tex. App. LEXIS 7560,
at *13. Pohl did not allege, nor did he submit evidence to establish, that Kassab is in
the business of purchasing marketing lists, that Favre and Precision are Kassab’s
usual clients, or that Favre and Precision was seeking legal services from Kassab.
See 1CR110 (describing the relationship between the parties). Rather, Pohl’s claims
against Kassab were premised on Kassab’s conduct relating to other services in the
marketplace, namely the purchase and sale of purportedly confidential information
or client files. The exemption does not apply, and a seller of goods or services may
avail himself of the TCPA, “when he speaks of other goods or services in the
marketplace.” Castleman, 546 S.W.3d at 689 (emphasis added).
Because Kassab is not in the business of purchasing marketing lists, and Favre
and Precision are not Kassab’s usual clients, nor were they seeking legal services
from Kassab, the commercial-speech exemption was inapplicable. See Schimmel v.
McGregor, 438 S.W.3d 847, 858 (Tex. App.—Houston [1st Dist.] 2014, pet. denied)
(statements and conduct by lawyer directed to third parties did not fall within
commercial speech exception because the third parties, who were the “ultimate
intended audience for his statements” were not lawyer’s potential customers); Grant
17
v. Pivot Tech. Sols., Ltd., 556 S.W.3d 865, 888-889 (Tex. App.—Austin 2018, pet.
filed) (exception inapplicable because while the alleged conduct at issue – a breach
of a purchase agreement – arose out of the agreement, the plaintiff failed to show
that the agreement involved computer-related services like the defendant provides
or that the audience of the conduct was an actual or potential customer of defendant).
B. The court of appeals should have followed Castleman rather
than distinguishable opinions from other courts.
The court of appeals rejected the above arguments because it could “not agree
that the alleged tortious acts can be divided in such a way to avoid the commercial-
speech exemption.” Kassab, 2020 Tex. App. LEXIS 7560, at *14. But this Court did
just that in Castleman and “divided” alleged tortious acts to conclude that the
commercial speech exemption did not apply. The defendant in that case, Castleman,
ran an online platform that served as a middleman between customers and product
suppliers. 546 S.W.3d at 685. Castleman hired the plaintiff, O’Conner, to receive
and fulfill customer orders placed through Castleman’s website and accused
O’Connor of failing to follow the instructions and over-ordering products. Id. When
O’Connor refused to pay, Castleman published statements about the dispute online,
accusing O’Connor of theft. Id. O’Connor sued Castleman for defamation, but the
trial court and the court of appeals concluded that the commercial-speech exemption
applied. Id. at 686.
18
This Court reversed, concluding that the commercial-speech exception had
not been satisfied:
Castleman made the statements in his status as a customer or consumer
of O’Connor’s services. Moreover, the intended audience of
Castleman’s statements was not an actual or potential buyer or
customer of the goods he sells. Castleman intended his statements to
reach O’Connor’s actual or potential customers. His statements
constituted protected speech warning those customers about the quality
of O’Connor’s services, not pursuing business for himself.
Id. at 690-691. In doing so, this Court “divided” the alleged tortious conduct
committed by Castleman – i.e., the alleged defamatory statements – to conclude that
the commercial-speech exemption did not apply. See id. The court of appeals should
have correctly followed Castleman instead of relying on the two inapplicable
authorities that it did.
The court of appeals relied on Miller Weisbrod, L.L.P. v. Llamas-Soforo, 511
S.W.3d 181 (Tex. App.—El Paso 2014, no pet.) and NCDR, L.L.C. v. Mauze &
Bagby, P.L.L.C., 745 F.3d 742 (5th Cir. 2014) to apply the commercial-speech
exemption, but those cases have no application here.
Miller Weisbrod involved a lawsuit for slander and defamation against a law
firm by an ophthalmologist contending television commercials that encouraged
former patients of ophthalmologist to contact the law firm if they were left blind by
treatment. 511 S.W.3d at 183-84. The law firm moved to dismiss pursuant to the
TCPA and the ophthalmologist claimed the commercial speech exception. Id. at 184.
19
The trial court denied the motion to dismiss and the law firm appealed. Id. The court
of appeals affirmed, recognizing that the ophthalmologist’s claims of slander arose
out of the advertisements, which were commercial speech excepted from the TCPA.
Id. at 191.
Likewise, Mauze involved a law firm that “engaged in an advertising
campaign to solicit former dental patients … from dental clinics as potential clients.”
745 F.3d at 745. Based on the law firm’s advertisements and website, the dental
clinics sued the firm for false advertising, defamation, and business disparagement.
Id. at 746. The law firm moved to dismiss pursuant to the TCPA. The district court
denied the motion based on the commercial speech exception. Id. at 746. The law
firm appealed. Id. In the absence of Texas Supreme Court interpretation of the
commercial speech exception, the Fifth Circuit made an “an Erie guess” relying on
Texas intermediate appellate court decisions. Id. at 755. The Fifth Circuit concluded
the commercial speech exception applied because the dental clinics’ claims for false
advertising and defamation arose out of the advertisements themselves, which were
directed to the law firm’s potential customers. See id.
Miller Weisbrod and Mauze are not helpful here because they were decided
four years before this Court’s decision in Castleman. Moreover, they also are
factually distinguishable. Again, Pohl is not suing Kassab for defamation arising
from Kassab’s statements to potential clients. Nor is Pohl suing Kassab for false
20
advertising in the letters that Kassab sent to potential clients. Rather, the focus of the
“conduct” at issue is the alleged theft of confidential trade secrets and property.
2CR900 (“In knowingly purchasing the stolen information, Kassab [has] wrongfully
exercised dominion and control over Pohl’s property in contravention of Pohl’s
rights as owner of that property.”); 2CR901 (“All Defendants willfully and
maliciously misappropriated Pohl’s trade secrets by using them without the express
or implied consent of Pohl.”); 2CR901 (“Acting in combination with the agreed
object of misappropriating Pohl’s trade secrets and converting Pohl’s property, each
of the Defendants committed overt acts toward the unlawful misappropriation of
Pohl’s trade secrets, which were unlawful and which proximately caused damages
to Pohl.”). Again, even Pohl agrees that he did not sue Kassab for solicitation of
clients, but “for conversion because Kassab [allegedly] knowingly purchased
confidential information and materials that were stolen from Pohl.” 1CR690.
Because Pohl’s claims are not based on advertisements by lawyers to potential
clients, Miller Weisbrod and Mauze are distinguishable, and do not establish that the
commercial speech exception applied to Pohl’s claims against Kassab. See
Schimmel, 438 S.W.3d at 858. Because the court of appeals followed those
authorities rather than Castleman, review is warranted.
21
PRAYER FOR RELIEF
Petitioners respectfully request that the Court grant the petition, reverse the
court of appeals judgment, and reverse the court of appeals’ judgment, and remand
the case to the trial court with instructions to dismiss with prejudice Pohl’s claims
against Kassab. Kassab requests all other relief to which he is entitled.
Respectfully submitted,
THE KASSAB LAW FIRM
/s/ Lance Christopher Kassab
Lance Christopher Kassab
State Bar No. 00794070
lance@kassab.law
David Eric Kassab
State Bar No. 24071351
david@kassab.law
1214 Elgin Street
Houston, Texas 77004
Telephone: (713) 522-7400
Facsimile: (713) 522-7410
ATTORNEYS FOR PETITIONERS LANCE
CHRISTOPHER KASSAB AND THE KASSAB
LAW FIRM
22
CERTIFICATE OF COMPLIANCE
Based on a word count run in Microsoft Word, this petition for review
contains 4,145 words, excluding the portions of the petition exempt from the word
count under Texas Rule of Appellate Procedure 9.4(i)(1).
/s/ David Eric Kassab
David Eric Kassab
CERTIFICATE OF SERVICE
I certify that on December 21, 2020, I electronically filed this petition for
review with the Clerk of the Court using the eFile.TXCourts.gov electronic filing
system which will send notification of such filing to all counsel of record.
/s/ David Eric Kassab
David Eric Kassab
23
INDEX OF APPENDIX
Tab Item
1. Pohl’s First Amended petition (without exhibits).
2. September 12, 2020 Opinion from Court of Appeals
3. September 17, 2020 Judgment from Court of Appeals
4. Tex. Civ. Prac. & Rem. Code § 27.010 (2017 version)
24
APPENDIX TAB 1
11/30/2018 9:45 PM
Chris Daniel - District Clerk Harris County
Envelope No. 29415016
By: ARIONNE MCNEAL
Filed: 11/30/2018 9:45 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL AND LAW OFFICE OF § IN THE DISTRICT COURT OF
MICHAEL A. POHL, PLLC, §
Plaintiffs, §
SCOTT FAVRE and SCOTT M. FAVRE PA, §
LLC; PRECISION MARKETING GROUP, § HARRISCOUNTY,TEXAS
LLC; LANCE CHRISTOPHER KASSAB and §
LANCE CHRISTOPHER KASSAB, P.C. d/b/a §
THE KASSAB LAW FIRM; TINA §
NICHOLSON and BAKER NICHOLSON, §
LLP d/b/a BAKER NICHOLSON LAW §
FIRM; and DOUGLAS MONTAGUE III and §
MONTAGUE PITTMAN & VARNADO, P.A., §
Defendants. § 189TH JUDICIAL DISTRICT
PLAINTIFFS MICHAEL POHL AND LAW OFFICE OF MICHAEL A. POHL, PLLC'S
FIRST AMENDED PETITION
SUMMARY
1. Plaintiffs Michael Pohl and Law Office of Michael A Pohl, PLLC (sometimes
collectively ""Pohl"") sue Defendants Scott Favre and Scott M. Favre PA, LLC ( collectively ""Favre"");
Precision Marketing Group, LLC (""Precision""); Lance Christopher Kassab and Lance Christopher
Kassab, P.C. D/B/A The Kassab Law Firm (collectively ""Kassab""); Tina Nicholson and Baker
Nicholson, LLP D/B/A Baker Nicholson Law Firm (collectively ""Nicholson""); and F. Douglas
Montague III and Montague Pittman & Varnado, P.A. (collectively ""Montague""). Favre, Precision,
Kassab, Nicholson, and Montague are collectively called ""Defendants.""
2. Defendants engaged in a scheme pursuant to which they illegally obtained,
maintained, and used trade secrets and other confidential information and property belonging to
Pohl. Favre and Precision's actions are in breach of a settlement agreement to which Pohl, Favre,
890
and Precision are parties, and all Defendants' actions constitute the torts of conversion and
violations of the uniform trade secrets act, as well as conspiracy.
3. More specifically, Favre and Precision executed a settlement agreement with Pohl
pursuant to which they agreed to return to Pohl certain information in their and their counsel's
possession, custody, or control; to permanently delete such electronically-stored information; and
not to cause any claim to be made or filed against Pohl. Favre and Precision also warranted that
they had not caused any suit or action to be filed against Pohl. Pohl fully complied with his
obligations under the agreement. Favre and Precision breached and continue to breach their
obligations under the agreement by causing claims to be made or filed against Pohl.
4. Defendants knowingly and illegally obtained and/or used confidential information
and property that belongs to Pohl, and exercised dominion and control over the information and
property in a manner inconsistent with Pohl's rights of ownership-each of which constitutes
actionable conversion.
5. The actions of each of the Defendants relative to the confidential information and
property that they obtained, maintained, and used constitute misappropriation and violate the
Texas Uniform Trade Secrets Act. Tex. Civ. Prac. & Rem Code,§ 134A.001, et seq. (""TUTSA"").
6. Defendants entered into a combination with the object of unlawfully
misappropriating Pohl's trade secrets and, in so doing, they engaged in one or more unlawful overt
acts, including stealing Pohl's confidential information/property and usmg the
information/property for their own gain. Pohl has suffered damages as a proximate result of
Defendants' conduct.
7. Pohl brings this action to recover damages and other relief for Defendants' breach of
contract, conversion, violations ofTUTSA, and conspiracy. Pohl seeks monetary relief in an amount
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over $1,000,000.00. All conditions precedent to Pohl maintaining this action and recovering from
Defendants have been performed or have occurred.
DEFENDANTS
8. Scott Favre is a nonresident individual who is a licensed public adjuster in Texas and
who engages in business in Texas. He does not maintain a regular place of business in Texas or a
designated agent for service of process in Texas. Mr. Favre may be served with citation and this
petition: (a) at his office address at 7044 Stennis Airport Road, Kiln, Mississippi 39556; or (b) through
the Texas Secretary of State under Texas Civil Practice and Remedies Code Sections l 7.044(a)(l)
and (b).
9. Scott M. Favre PA, LLC is a nonresident limited liability company that engages in
business in Texas. It does not maintain a regular place of business in Texas or a designated agent for
service of process in Texas. Scott M. Favre PA, may be served with citation and this petition: (a) by
serving Scott Favre, the person in charge of Scott M. Favre PA, LLC' s business, at the address of the
business, 7044 Stennis Airport Road, Kiln, Mississippi 39556; or (b) through the Texas Secretary of
State under Texas Civil Practice and Remedies Code Sections l 7.044(a)(l) or (b).
I 0. Precision is a nonresident limited liability company that engages in business in Texas.
It does not maintain a regular place of business in Texas or a designated agent for service of process
in Texas. Precision may be served with citation and this petition: (a) by serving Scott Favre, the
person in charge of Precision's business, at 7044 Stennis Airport Road, Kiln, Mississippi 39556; or
(b) through the Texas Secretary of State under Texas Civil Practice and Remedies Code Sections
l 7.044(a)(l) or (b ).
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11. Lance Christopher Kassab is an individual and resident of Texas. He is an attorney
who specializes in legal malpractice claims. He may be served with citation and this petition: (a)
at 1214 Elgin Street, Houston, Texas 77004; or (b) at 5314 Navarro Street, Houston, Texas 77056.
12. Lance Christopher Kassab, P.C. D/B/A The Kassab Law Firm is a Texas professional
corporation. It may be served with citation and this petition by serving its registered agent, Lance
Christopher Kassab: (a) at 1214 Elgin Street, Houston, Texas 77004; or (b) at 5314 Navarro Street,
Houston, Texas 77056.
13. Tina Nicholson is an individual and a resident of Texas. She is an attorney. Tina
Nicholson may be served with citation and this petition: (a) at 4306 Yoakum Blvd., Suite 400,
Houston, Texas 77006; or (b) at 1607 Dove Ridge Drive, Katy, Texas 77493.
14. Baker Nicholson, LLP D/B/A Baker Nicholson Law Firm is a Texas limited liability
partnership. It may be served with citation and this petition: (a) by serving its partner, Allison Baker,
at 4306 Yoakum Blvd., Suite 400, Houston, Texas 77006; or (b) by serving its partner, Tina
Nicholson, at 4306 Yoakum Blvd., Suite 400, Houston, Texas 77006.
15. F. Douglas Montague III is a nonresident individual who engages in business in Texas.
He does not maintain a regular place of business in Texas or a designated agent for service of process
in Texas. Mr. Montague may be served with citation and this petition: (a) at his office address at 525
Main Street, Hattiesburg, Mississippi 39401; or (b) through the Texas Secretary of State under Texas
Civil Practice and Remedies Code Sections l 7.044(a)(l) or (b).
16. Montague Pittman & Varnado, P.A. is a non-resident professional association that
engages in business in Texas. It does not maintain a regular place of business in Texas or a designated
agent for service of process in Texas. Montague Pittman & Varnado, P .A may be served with citation
and this petition: (a) by serving F. Douglas Montague III, its registered agent for services of process
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and the person in charge of its business, at 525 Main Street, Hattiesburg, Mississippi 39401; or (b)
through the Texas Secretary of State under Texas Civil Practice and Remedies Code Sections
1 7. 044( a) ( 1) or (b).
JURISDICTIONNENUE
17. The damages that Pohl seeks in this case are within the jurisdictional limits of this
Court. The Court has jurisdiction over Defendants because they have the necessary minimum
contacts with Texas, which include engaging in business in Texas, committing torts in Texas and, as
to some of them, residing in Texas. Further, Favre and Precision contracted with Pohl, a Texas
resident at the time, for Pohl to perform the contract at issue in whole or in part in Texas. This case
arises out of business done in Texas by Defendants.
18. Venue is proper in Harris County under Texas Civil Practice and Remedies Code
Sections 15.002 and 15.062.
BACKGROUND
19. Pohl is a lawyer who represented various persons and entities in claims arising from
motor vehicle accidents and the British Petroleum Deepwater Horizon oil spill. (See the attached
Declaration of Michael Pohl, Exhibit A, ,i 3). Scott Favre, individually and/or through Scott M. Favre
PA, LLC, is the managing member of Precision, a public relations and marketing firm. Nicholson is
a lawyer who represented Favre and Precision, including for purposes of the settlement agreement
mentioned above as well as in facilitating the sale of Pohl's confidential and proprietary information
and property to Kassab and Montague. At the time the settlement agreement was entered into and
still today, Nicholson was also Kassab and Montague's co-counsel in connection with claims that
they are prosecuting against Pohl.
-5-
894
20. Pohl engaged Precision for a period of time to provide public relations services, to
gather and preserve evidence, and to screen and liaise with Pohl's clients/prospective clients. While
working for Pohl, Precision gained access to Pohl's confidential and proprietary information and
property, including trade secret materials, that included the identities of Pohl' s clients/prospective
clients, as well as their detailed contact information. The information and property also included
actual attorney-client fee agreements with clients/prospective clients, compilations of clients, other
confidential communications between the clients/prospective clients and Pohl, specialized legal forms
that had been prepared in compliance with various state laws after consultation with local counsel in
those jurisdictions, Pohl's proprietary administrative client forms, fee-agreement forms prepared in
accordance with the laws of various states, internal emails, propriety marketing information and other
trade secrets, and other work product relating to claims of Pohl's clients and prospective clients.
Despite Favre and Precision's claims to the contrary, these materials belonged to Pohl, not Precision.
Favre and Nicholson also ultimately gained access to the information.
21. Favre and Precision illegally misappropriated Pohl's proprietary and confidential
information and property described above, which included information about and/or communications
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 misappropriated electronic
data to which they had access through Precision's work for Pohl. Favre, with Nicholson or with
Nicholson's active and knowing and intentional assistance, then secretly sold Pohl's stolen
confidential information and property to Kassab and Montague.
22. As Kassab himself indicated in a sworn affidavit: ""Favre and his counsel, Tina
Nicholson ('Nicholson'), provided me with information from Precision Marketing's files, including
the names and addresses of Pohl' s former clients or prospective clients."" This information, which
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included compilations of former, current and prospective clients-as well as actual engagement
agreements-did not belong to Precision, however. As with any law firm, information such as
compilations of former, current and prospective clients, belong to the law firm itself Thus,
Nicholson's active, knowing and intentional assistance included brokering the illegal sale of Pohl's
information and property as well as actually providing such information and property to Kassab.
23. Favre and Precision, with the assistance of Nicholson, struck a rich bargain; Kassab
and Montague paid Favre $250,000.00 in cash together with substantial bonuses. Kassab and
Montague knew that the information and property that they were purchasing was stolen and not Favre
and/or Nicholson's to sell. (A true and correct copy of the agreement to sell Pohl's information is
attached hereto as Exhibit B). Favre, Precision, and Nicholson likewise knew that the information
and property that they were selling or helping to sell was stolen and belonged to Pohl.
24. Like Favre and Precision, Nicholson was also motivated to participate in and facilitate
the illegal transaction with Kassab and Montague described above in furtherance of her own business.
As a direct result of the transaction and Nicholson's role in the transaction, Kassab and Nicholson
have apparently successfully solicited clients for whom Nicholson is now co-counsel with Kassab.
Nicholson is a lawyer primarily in the business of obtaining legal work and providing legal services.
Nicholson obtains legal work either through directly obtaining clients or entering into co-counsel
relationships with other counsel. Her participation in the illegal transaction described above and the
conduct for which she is being sued was done for the purpose of and resulted in her obtaining a co
counsel relationship with Kassab and thereby gaining the opportunity to provide legal services.
25. The theft, sale and unlawful disclosure of Pohl's proprietary, confidential and trade
secret information was made even more egregious by the fact that from the outset of the relationship
between Pohl and Precision, Pohl made clear to Precision and its representatives the confidential
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nature of the above listed information. Precision and its representatives expressed their understanding
of the confidential and proprietary nature of the information and that the information belonged to
Pohl.
26. Kassab is a lawyer who specializes in suing other lawyers and who, upon information
and belief, has worked with Montague in this connection in the past. Kassab saw the value of Pohl's
stolen and misappropriated confidential information and property because it provided him the ability
to contact and solicit Pohl' s clients/prospective clients. As noted previously, included in the stolen
information purchased by Kassab and Montague were actual engagement agreements between Pohl
and his clients. (Attached as Exhibit C hereto is an email between Montague and Kassab and copying
Nicholson dated December 7, 2016 reflecting the transfer of actual engagement agreements to
Kassab).
27. Kassab and Montague had to know that the information and property they purchased
for a non-refundable $250,000.00 along with promises of future payments was stolen. Nicholson
likewise had to know that the information and property that she assisted in selling was stolen. Any
attorney, and especially an attorney specializing in legal malpractice, would know not to purchase or
sell another law firm's engagement agreements, client compilations and other materials from a third
party.
28. The fact that Kassab, Montague and Nicholson all knew that the information and
property involved in the sale was stolen is further evidenced by terms of the purchase agreement itself
That agreement obligates Kassab and Montague to indemnify Favre from claims that Pohl might
bring-making clear that everyone understood that Pohl might assert a claim. Indemnity would be
unnecessary if Favre owned the materials or if they were publicly known.
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29. Using the stolen confidential information and property that he knowingly purchased,
Kassab solicited those clients/prospective clients to act as plaintiffs and, joined by Nicholson and
Montague, to bring cases against Pohl for alleged barratry and other claims.
30. The actions of Favre and Precision, in addition to being tortious and in violation of
Texas law, were in direct violation and breach of the settlement agreement, which is a binding
contract. More specifically, a dispute arose resulting in a lawsuit in federal court in Mississippi, styled
No. l:14-cv-381-KS-JCG, Scott Walker, et al. v. Jimmy Williamson, et al., In The United States
District Court For The Southern District of Mississippi, Southern Division. That lawsuit was
resolved pursuant to a Confidential Settlement Agreement, executed in late April/early May 2017 (the
""Settlement Agreement""). Nicholson represented Favre and Precision in connection with the
Settlement Agreement, including its execution, while at the same time serving as co-counsel with
Kassab and Montague for the claims now being asserted against Pohl.
31. The Settlement Agreement was executed by Favre, as managing member of Precision
and on behalf of Scott M. Favre PA, LLC, and by Pohl. The Settlement Agreement expressly provides
that Favre and Precision will return to Pohl all originals and all copies of documents in their and their
counsel's possession, custody, or control that concern and/or identify all past or current clients and/or
prospective clients of Pohl, and that Favre and Precision will delete all such electronically-stored
information. At the time, Nicholson was not only Favre and Precision's agent and counsel in
connection with the Settlement Agreement; she was also Kassab and Montague's co-counsel in
connection with the claims now being made against Pohl in various cases.
32. The Settlement Agreement also provided that Favre and Precision would not cause
any claim, complaint, or legal action to be filed or made against Pohl. Favre and Precision further
warranted and represented that they had not caused any suit or action to be filed against Pohl. Favre
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and Precision breached these provisions of the Settlement Agreement by, inter alia, causing claims,
complaints, and legal actions-not their own-to be filed and/or prosecuted against Pohl. The very
existence of the cases that Kassab, Montague, and/or Nicholson are prosecuting against Pohl is a
breach of the Settlement Agreement.
33. In addition, as described above and in conjunction with the sale of Pohl's information
and property to Kassab and Montague, all Defendants converted Pohl' s confidential
information/property by knowingly and unlawfully assuming and exercising dominion and control
over that information/property in a way that was inconsistent with Pohl's ownership. Each of the
Defendants, individually and in combination with each other, misappropriated Pohl's trade secrets in
violation of the TUTSA by unlawfully obtaining and using Pohl's confidential and trade secret
information/property in the sale of such information/property to Kassab and Montague and continuing
to use Pohl' s information and property to solicit cases against Pohl.
34. Paragraphs 1 through 7 and 19 through 33 are incorporated into all following
paragraphs of this petition. In addition, attached hereto as Exhibit Dis the affidavit of Billy Shepherd
and certain information confirming and further explaining the claims asserted herein.
CAUSES OF ACTION
Count One: Breach of Contract (Against Favre and Precision)
35. Favre and Precision are bound by the terms of the Settlement Agreement. Pohl timely
and fully performed the Settlement Agreement. Favre and Precision breached the Settlement
Agreement by assisting and continuing to assist in the manufacture and prosecution of claims against
Pohl. Their breaches include causing claims to be made against Pohl; causing complaints and legal
actions to be filed against Pohl; and Favre' s assisting Kassab and his co-counsel, Montague and
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Nicholson, in pursuing claims, complaints, and actions against Pohl. Favre and Precision's breaches
resulted in damages to Pohl.
Count Two: Conversion (Against All Defendants)
36. In selling Pohl's proprietary and confidential information, Favre, Precision, and
Nicholson have wrongfully assumed and exercised dominion and control over Pohl's property in
contravention of Pohl's rights as owner of that property.
37. In knowingly purchasing the stolen information, Kassab and Montague have
wrongfully exercised dominion and control overPohl's property in contravention of Pohl's rights as
owner of that property.
38. In knowingly maintaining and using the stolen information and property since the sale
of said information and property to Kassab and Montague, all Defendants have wrongfully exercised
dominion and control over Pohl' s property in contravention of Pohl' s rights as owner of that property.
Pohl owned and owns the information/property, and Favre and Precision (with Nicholson or with
Nicholson's active and knowing and intentional assistance as described above) disclosed the
information/property and sold it to Kassab and Montague. Kassab and Montague knowingly
purchased the stolen information/property. Pohl has been damaged thereby in an amount in excess
of $250,000 which is the price that Kassab and Montague paid for Pohl' s information and property.
Count Three: Violation of TUTSA (Against All Defendants)
39. Pohl maintained information regarding his clients/prospective clients and their contact
information and related data including compilations of former, current and prospective clients, as well
as other information concerning his practice of law, as confidential trade secret information. Pohl
took substantial measures to maintain the confidentiality of that information and obtained assurances
from Precision that Precision would maintain the confidentiality of Pohl's information. That
information has independent economic value from not being generally known to, and not readily
-11-
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being ascertainable through proper means by, another person who can obtain economic value from
the disclosure or use of the information. The value of the information exceeds $250,000, which is the
price Kassab and Montague paid to obtain Pohl's information.
40. Favre, Precision, and Nicholson willfully and maliciously misappropriated Pohl's
trade secrets by acquiring them through improper means-specifically, by theft. See Tex. Civ. Prac.
& Rem. Code § 134A.002(2), (3)(A).
41. Favre, Precision, and Nicholson willfully and maliciously misappropriated Pohl's
trade secrets by disclosing them via sale to Kassab and Montague (who purchased the trade secret
information knowing that it had been stolen) without the express or complied consent of Pohl. See
Tex. Civ. Prac. & Rem. Code § 134A.002(3)(B).
42. All Defendants willfully and maliciously misappropriated Pohl's trade secrets by
using them without the express or implied consent of Pohl. See Tex. Civ. Prac. & Rem. Code §
134A.002(3)(B).
Count Four: Civil Conspiracy (Against All Defendants)
43. Acting in combination with the agreed object of misappropriating Pohl's trade secrets
and converting Pohl's property, each of the Defendants committed overt acts toward the unlawful
misappropriation of Pohl's trade secrets, which were unlawful and which proximately caused
damages to Pohl.
DAMAGES
44. Pohl seeks actual damages within the jurisdictional limits of this Court.
45. Pohl seeks injunctive relief pursuant to Texas Civil Practice and Remedies Code
Section 134A.003.
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46. Pohl seeks exemplary damages pursuant to Texas Civil Practice and Remedies Code
Sections 41.001, et seq, and 134A.004(b).
47. Pohl seeks attorney's fees pursuant to Texas Civil Practice and Remedies Code
Sections 38.001, et seq, and 134A.005.
48. Pohl seeks pre-judgment and post-judgment interest.
TRIAL BY JURY
49. Pohl requests trial by jury and has submitted the appropriate jury fee.
CONCLUSION
50. Pohl requests that judgment be entered in Pohl's favor and against Defendants on the
counts and as requested above, and for such other and further or alternative relief (legal and equitable)
to which Pohl may be entitled.
Dated: November 30, 2018
Respectfully submitted,
REYNOLDS FRIZZELL LLP
By: Isl Jean C. Frizzell
Jean C. Frizzell
State Bar No. 07484650
1100 Louisiana St., Suite 3500
Houston, Texas 77002
Tel. 713.485.7200
Fax 713.485.7250
i frizzell(a;reynoldsfrizzell. com
Attorneys for Plaintiffs Michael Pohl
and Law Office of Michael A. Pohl, PLLC
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this document was served on all counsel of
record pursuant to the Texas Rules of Civil Procedure on this 30th day of November, 2018.
Isl Jean C. Frizzell
Jean C. Frizzell
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APPENDIX TAB 2
Opinion issued September 17, 2020
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-18-01143-CV
———————————
LANCE CHRISTOPHER KASSAB, LANCE CHRISTOPHER KASSAB,
P.C. D/B/A THE KASSAB LAW FIRM, TINA NICHOLSON, BAKER
NICHOLSON, LLP D/B/A BAKER NICHOLSON LAW FIRM, SCOTT
FAVRE, SCOTT M. FAVRE PUBLIC ADJUSTER, LLC, AND PRECISION
MARKETING GROUP, LLP, Appellants
MICHAEL A. POHL AND LAW OFFICE OF MICHAEL A. POHL, PLLC,
Appellees
On Appeal from the 189th District Court
Harris County, Texas
Trial Court Case No. 2018-58419
O P I N I O N
Michael A. Pohl and his law firm, Law Office of Michael A. Pohl, PLLC,
sued four groups of individuals and entities for allegedly conspiring to steal Pohl’s
client lists and other property to pursue barratry claims against him. Three of the
four groups filed motions to dismiss under the Texas Citizens Participation Act.1
They are (1) Lance Christopher Kassab and Lance Christopher Kassab, P.C. d/b/a
The Kassab Law firm; (2) Tina Nicholson and Baker Nicholson, LLP d/b/a Baker
Nicholson Law Firm; and (3) Scott Favre, Scott M. Favre Public Adjuster, LLC, and
Precision Marketing Group, LLP. Their three TCPA motions were overruled by
operation of law. The movants brought this interlocutory appeal of the denial of their
motions.
We affirm.
Background
This is the fourth wave of litigation involving these parties. We will briefly
discuss the past litigation that led to this suit as it is relevant to the issues being
decided now.
BP Horizon litigation
The BP Horizon litigation began shortly after the BP Deepwater Horizon oil
spill in the Gulf of Mexico in 2010. Michael Pohl, who is a Texas attorney, was
1 See TEX. CIV. PRAC. & REM. CODE §§ 27.001-.011. This suit involved the pre-
September 1, 2019 version of the TCPA.
interested in representing Mississippi residents in litigation against BP Petroleum.
He allegedly entered into a business relationship with three men in Mississippi,
agreeing to pay them a finder’s fee for clients they solicited and a percentage of
attorney’s fees recovered after the solicited clients’ cases settled. There is evidence
that the three men contacted people and businesses in Mississippi to determine if
they might have a claim against BP, encouraged those people to retain Pohl as their
attorney, and were paid over $5 million in “barratry pass-through money” for their
services. There are contrary assertions that the services were “marketing” in nature.
The three men are Scott Walker, Steve Seymour, and Kirk Ladner. They are alleged
to have performed these actions individually and as part of an entity, Precision
Marketing Group, LLC (PMG).
Pohl represented hundreds of plaintiffs in suits against BP Petroleum. A list
of his actual and prospective clients was maintained by PMG for its business
dealings with Pohl.
The Mississippi federal litigation
The Mississippi federal litigation began in 2014. Walker, Seymour, and
Ladner—individually and as PMG—sued Pohl, Pohl’s law firm, and other Texas
attorneys and their law firms in federal court in Mississippi. They claimed they
provided “marketing services” for Pohl and brought in “millions of dollars of claims
each week” to Pohl’s firm. They asserted that Pohl did not pay them the agreed fee
for their services. They presented their claims as causes of action for fraud, unjust
enrichment, and breach of an agreement to pay for services.
Pohl moved to dismiss the claims against him, arguing that the alleged
contract was illegal and unenforceable because, under Mississippi law, it is illegal
to accept money to begin or prosecute litigation. In other words, PMG engaged in
illegal solicitation on Pohl’s behalf so the plaintiffs cannot enforce the contract to
pay for those services.
The federal court denied Pohl’s dismissal motion in 2016, concluding that the
PMG affiliated plaintiffs never alleged they accepted money to begin or prosecute
litigation in violation of Mississippi law. They alleged, instead, that they were owed
money for public relations and marketing services. After that ruling, the parties
settled all their pending claims against each other, as reflected in the court’s sua
sponte judgment of dismissal entered in April 2017.
The barratry litigation
The barratry litigation began in 2017 after Lance Kassab, a Texas attorney,
was alerted to the Mississippi federal litigation by a Mississippi acquaintance.
Kassab specializes in legal malpractice claims. After hearing about Pohl’s client-
solicitation activities in Mississippi, Kassab began researching the matter. He met
with Scott Favre (who had bought PMG from Walker and Ladner) and with Tina
Nicholson (Favre’s and PMG’s legal counsel). Favre informed Kassab that, when he
bought PMG, he acquired files related to Pohl. Favre transferred information from
those PMG files to Kassab, including Pohl’s client list. Kassab paid Favre. It is
disputed whether the payment was for Pohl’s client list or for Favre’s expertise.
After getting Pohl’s client list, Kassab prepared an advertisement letter.
According to Kassab’s affidavit, he obtained pre-approval from the State Bar of
Texas for the advertisement letter before using it. After the advertisement letter was
approved, he sent it to the people on the Pohl client list. The letter informed the
recipients “that they may have been a victim of barratry” and may “be entitled to file
civil claims against Pohl” under the Texas civil barratry statute.
Hundreds of Mississippi residents responded to Kassab’s advertisement letter.
More than 400 signed representation contracts with Kassab’s firm to pursue barratry
claims against Pohl. Kassab filed four barratry suits against Pohl in Harris County
district courts, each with multiple named plaintiffs. The barratry litigation is on-
going.2
This suit
The fourth litigation in this series is this suit. Pohl sued Kassab, Favre, PMG,
Nichols, and others in Harris County district court in 2018. He asserts four causes of
action: (1) a conversion claim against all defendants, alleging they stole his property,
2 Relying on the materials received during discovery in the barratry litigation, Kassab
filed a grievance against Pohl with the State Bar of Texas. There is no indication in
the record of the status of that grievance.
including his client list and contracts; (2) a theft-of-trade-secrets claim against all
defendants, arguing that his client list and other stolen proprietary information are
trade secrets; (3) a civil conspiracy claim against all defendants based on these same
alleged acts of theft; and (4) a breach-of-contract claim against just Favre and PMG,
alleging they breached the settlement agreement in the Mississippi federal litigation
by assisting his former clients with their litigation against him.
Pohl’s pleading alleges that Favre is the current managing member of PMG,
that Pohl engaged PMG to provide “public relations services” and “to screen and
liaise with Pohl’s clients/prospective clients,” and that, “[w]hile working for Pohl,
[PMG] gained access to Pohl’s confidential and proprietary information and
property, includ[ing] trade secret materials, that included the identities of Pohl’s
clients/prospective clients as well as their detailed contact information . . . [and]
actual attorney-client fee agreements . . . [and] other confidential communications
between the clients/prospective clients and Pohl.” Pohl contends the defendants
“engaged in a scheme pursuant to which they illegally obtained, maintained, and
used trade secrets and other confidential information and property belonging to
Pohl.” Specifically, Pohl alleges the defendants stole his client list and sold it to
Kassab, who then used it to solicit clients to pursue barratry claims against Pohl.
Pohl’s pleading also alleges that “Favre and Precision [PMG] executed a
settlement agreement with Pohl” at the end of the Mississippi federal litigation in
which “they agreed to return to Pohl certain information in their and their counsel’s
possession . . . [and] to permanently delete[] such electronically-stored information.”
In the settlement agreement, according to Pohl, Favre and PMG also “warranted that
they had not caused any suit or action to be filed against Pohl.”
Pohl’s suit seeks damages in excess of $1 million.
The defendants answered. They grouped into three subsets, and each subset
filed a TCPA motion to dismiss, alleging that Pohl filed his suit in retaliation for
their disclosure of his alleged barratry activity. They argued that the TCPA applies
because Pohl’s claims relate to their recognized statutory rights and that Pohl could
not establish a prima facie case for his causes of action. Their motions sought
dismissal of Pohl’s claims. The trial court held hearings on the motions to dismiss
but did not rule. All three dismissal motions were overruled by operation of law. The
movants have appealed.
Texas Citizens Participation Act
The movants sought dismissal of Pohl’s claims against them under the Texas
Citizens Participation Act. See TEX. CIV. PRAC. & REM. CODE §§ 27.001–.011. The
TCPA is found in Chapter 27 of the Civil Practice and Remedies Code, which is
titled “Actions Involving the Exercise of Certain Constitutional Rights.” The
TCPA’s purpose is to protect “citizens who petition or speak on matters of public
concern from retaliatory lawsuits that seek to intimidate or silence them.” In re
Lipsky, 460 S.W.3d 579, 584 (Tex. 2015). It does so by creating a “set of procedural
mechanisms through which a litigant may require, by motion, a threshold testing of
the merits of legal proceedings or filings that are deemed to implicate the expressive
interests protected by the statute, with the remedies of expedited dismissal, cost-
shifting, and sanctions for any found wanting.” Serafine v. Blunt, 466 S.W.3d 352,
369 (Tex. App.—Austin 2015, no pet.) (Pemberton, J., concurring); see TEX. CIV.
PRAC. & REM. CODE §§ 27.003–.005, .009.
A. TCPA’s dismissal provision and relevant statutory definitions
Section 27.003 of the TCPA provides that a party may move to dismiss a legal
action that “is based on, relates to, or is in response to [that] party’s exercise of” one
of three rights: free speech, petition, or association. Id. § 27.003(a). The Legislature
statutorily defined the three sets of rights protected by TCPA summary-dismissal
procedures. Id. § 27.001(2) (defining “exercise of the right of association” as “a
communication between individuals who join together to collectively express,
promote, pursue, or defend common interests”); § 27.001(3) (defining “exercise of
the right of free speech” as “a communication made in connection with a matter of
public concern”); § 27.001(4) (defining “exercise of the right to petition” as “a
communication in or pertaining to” various specifically listed proceedings, including
“a judicial proceeding,” as well as the more general category of “any other
communication that falls within the protection of the right to petition government
under the Constitution of the United States or the constitution of this state”).
B. TCPA’s shifting burdens
When a movant seeks dismissal under the TCPA, the movant has the initial
burden to show by a preponderance of the evidence that the nonmovant has asserted
a “legal action” that is based on, relates to, or is in response to the movant’s exercise
of one of the three rights delineated in the statute. Id. § 27.005(b). If the movant
meets that burden, the burden shifts to the nonmovant.
The nonmovant has the burden to establish by clear and specific evidence a
“prima facie case for each essential element of the claim in question.” Id.
§ 27.005(c). This generally “requires only the minimum quantum of evidence
necessary to support a rational inference that the allegation of fact is true.” In re E.I.
DuPont de Nemours & Co., 136 S.W.3d 218, 223 (Tex. 2004) (orig. proceeding)
(internal quotation marks and citation omitted). “Prima facie evidence is evidence
that, until its effect is overcome by other evidence, will suffice as proof of a fact in
issue.” Rehak Creative Servs., Inc. v. Witt, 404 S.W.3d 716, 726 (Tex. App.—
Houston [14th Dist.] 2013, pet. denied) (citation omitted) (disapproved of on other
grounds, In re Lipsky, 460 S.W.3d at 587–88); cf. Kerlin v. Arias, 274 S.W.3d 666,
668 (Tex. 2008) (per curiam) (explaining that summary-judgment movant’s
presentation of prima facie evidence of deed’s validity established right to summary
judgment unless nonmovants presented evidence raising fact issue related to deed’s
validity).
Dismissal may be required, despite the nonmovant’s evidence proffered to
meet his prima facie burden, if the movant establishes “by a preponderance of the
evidence each essential element of a valid defense to the nonmovant’s claim.” Id.
§ 27.005(d).
C. Exemptions to applicability of TCPA dismissal procedures
A nonmovant plaintiff can avoid the TCPA’s burden-shifting requirements by
showing that one of the TCPA’s several exemptions applies. See TEX. CIV. PRAC. &
REM. CODE § 27.010. Among them is the commercial-speech exemption. Id.
§ 27.010(b).3 It provides that the TCPA does not apply to, and therefore is not a
vehicle to achieve dismissal of, a legal action brought against a person “primarily
engaged in the business of selling or leasing goods or services,” if the statement or
conduct connected to the exercise of one of the statutory rights “arises out of the sale
or lease of goods, services . . . or a commercial transaction in which the intended
audience is an actual or potential buyer or customer.” TEX. CIV. PRAC. & REM. CODE
§ 27.010(b). The party asserting the commercial-speech exemption has the burden
3 Case law sometimes refers to the exemption as an exception. See Bejarano v.
Dorgan, No. 03-19-00182-CV, 2019 WL 4458798, at *2 (Tex. App.—Austin Sept.
18, 2019, no pet.).
10
to prove that the exemption applies to the communications at issue. Schmidt v.
Crawford, 584 S.W.3d 640, 652–53 (Tex. App.—Houston [1st Dist.] 2019, no pet.).
D. Standard of review
We review a trial court’s ruling on a TCPA motion to dismiss de novo. Porter-
Garcia v. Travis Law Firm, P.C., 564 S.W.3d 75, 83 (Tex. App.—Houston [1st
Dist.] 2018, pet. denied). We consider the pleadings and evidence in the light
favorable to the nonmovant. Id. at 84; Dolcefino v. Cypress Creek EMS, 540 S.W.3d
194, 199 (Tex. App.—Houston [1st Dist.] 2017, no pet.).
To the extent resolution of this appeal turns on construction of the TCPA, we
review that de novo as well. Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex.
2015). When construing the TCPA, as with any other statute, our objective is to give
effect to the legislative intent, looking first to the statute’s plain language. Id. If that
language is unambiguous, “we interpret the statute according to its plain meaning.”
Id. Additionally, we construe the TCPA “liberally to effectuate its purpose and intent
fully.” TEX. CIV. PRAC. & REM. CODE § 27.011(b); see State ex rel. Best v. Harper,
562 S.W.3d 1, 11 (Tex. 2018).
The Commercial-Speech Exemption Applies
The commercial-speech exemption provides that the TCPA does not apply to
a suit against a defendant who is “primarily engaged in the business of selling or
leasing goods or services, if the statement or conduct arises out of the sale or lease
11
of goods, services . . . or a commercial transaction in which the intended audience is
an actual or potential buyer or customer.” TEX. CIV. PRAC. & REM. CODE
§ 27.010(b). The Texas Supreme Court has identified four elements to this
exemption:
(1) the defendant (TCPA movant) was primarily engaged in the
business of selling or leasing goods or services;
(2) the defendant made the statement or engaged in the conduct on
which the plaintiff’s claim is based in its capacity as a seller or
lessor of those goods and services;
(3) the statement or conduct at issue arose out of a commercial
transaction involving the kind of goods or services that the
defendant provides; and
(4) the intended audience of the statement or conduct were actual or
potential customers of the defendant for the kind of goods or
services the defendant provides.
Castleman v. Internet Money Ltd., 546 S.W.3d 684, 688 (Tex. 2018) (per curiam).
Pohl sued the three sets of movants for their role in the alleged theft and sale of his
client information to Kassab that enabled Kassab to contact those clients to provide
legal services in pursuit of barratry claims against Pohl. In our view, all four
Castleman factors are met for each set of defendant-appellants. We begin with the
Kassab defendants.
A. The Kassab defendants
Pohl’s petition alleges that Kassab bought Pohl’s client list from PMG so that
Kassab could send advertisements to Pohl’s former clients and solicit them to
become Kassab’s clients in barratry suits against Pohl.
12
Kassab and his firm are in the business of selling legal services. Other cases
have recognized that attorney efforts to engage prospective clients and provide them
with paid legal services meet the first element of the Castleman test. See Miller
Weisbrod, L.L.P. v. Llamas-Soforo, 511 S.W.3d 181, 189 (Tex. App.—El Paso 2014,
no pet.) (stating that “case law appears settled [that] lawyer advertising is
commercial speech”) (internal quotation marks omitted); see also NCDR, L.L.C. v.
Mauze & Bagby, P.L.L.C., 745 F.3d 742, 754–55 (5th Cir. 2014) (applying Texas
law).
According to Pohl’s allegations, the Kassab defendants arranged with the
PMG defendants, with the help of the Nicholson attorney defendants, to obtain,
maintain, and use Pohl’s client list and his other proprietary information for their
profit. Kassab allegedly entered into a business transaction to purchase the client list
and then sent advertisements to those on the list to offer his legal services to the
potential clients. Thus, the claims against the Kassab defendants are based on their
alleged statements and conduct in their capacity as sellers of legal services. See
Miller Weisbrod, 511 S.W.3d at 191 (concluding that attorney advertisement to
people who might have a medical malpractice claim against a specific physician
identified in the advertisement was created “primarily to attract clients allegedly
injured by [the identified physician]”); NCDR, 745 F.3d at 745–53 (applying Texas
law, holding that attorneys who advertised about a national chain of dental clinics
13
being under government investigation and possibly engaging in unnecessary and
harmful dental work on children were “primarily engaged in selling legal services to
clients and that the ads offered those services to potential customers”).
Further, the alleged purchase of Pohl 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. See Miller
Weisbrod, 511 S.W.3d at 191 (concluding that attorneys’ speech “arose from the
sale of their legal services to potential customers” reached through their attorney
advertisements).
Kassab argues that Pohl’s claims do not arise out of his conduct because the
alleged theft of the client list would have preceded the advertisements to Pohl’s
former clients, who were Kassab’s potential clients. We do not agree that the alleged
tortious acts can be divided in such a way to avoid the commercial-speech
exemption. Kassab was sued for buying an allegedly stolen client list that identified
people solicited by another attorney in the past and then targeting those same people
to sue the other attorney. Pohl alleges a conspiracy to undertake this scheme.
The commercial-speech exemption applies to statements and conduct.
Kassab’s conduct that is alleged to be tortious involved the alleged conspiracy to
14
steal, sell/buy, and use the client list for later client solicitation. We conclude
Kassab’s statements or conduct arose out of a commercial transaction involving the
kind of goods or services Kassab provides. See Robert B. James, DDS, Inc. v. Elkins,
553 S.W.3d 596, 605 (Tex. App.—San Antonio 2018, pet. denied) (stating that
courts of appeals have construed phrase “arising out of” in TCPA’s commercial-
speech exemption broadly to include statements and conduct that are “ancillary to”
a commercial transaction).
Finally, the intended audience of the Kassab defendants’ statement or conduct
were individuals with potential legal claims who Kassab sought to represent in
barratry suits against Pohl. These were Kassab’s potential clients to whom he offered
the kind of legal services he provides. See id.
Thus, the commercial-speech exemption applies as to the claims against the
Kassab defendants, leaving the TCPA summary-dismissal procedures unavailable to
that subset of defendant/movants. See Castleman, 546 S.W.3d at 691 (under
different facts, concluding that nonmovant’s statements did not arise out of his sale
of goods or services because he was “not pursuing business for himself” when he
made the statements).
B. The Nicholson defendants
Pohl’s petition alleges that Tina Nicholson and her law firm assisted PMG, as
its counsel, in selling his client list to Kassab and then entered into a business
15
relationship with Kassab to assist in providing legal services to the identified clients
for a shared fee.
Nicholson and her firm are in the business of selling legal services. Attorney
efforts to engage prospective clients and provide them with paid legal services meet
the first element of the Castleman test. See Miller Weisbrod, 511 S.W.3d at 189
(stating that “case law appears settled [that] lawyer advertising is commercial
speech”) (internal quotation marks omitted).
According to Pohl’s allegations, the Nicholson defendants arranged with the
PMG defendants to obtain, maintain, and use Pohl’s client list and his other
proprietary information for their profit. Nicholson allegedly facilitated the sale to
Kassab and became his co-counsel in pursuing legal claims against Pohl on behalf
of Pohl’s former clients, for a legal fee. Thus, the claims against the Nicholson
defendants are based on their alleged statements and conduct in their capacity as
sellers of legal services. See Miller Weisbrod, 511 S.W.3d at 191; NCDR, 745 F.3d
at 745–53; cf. Toth v. Sears Home Improvement Prods., Inc., 557 S.W.3d 142, 154
(Tex. App.—Houston [14th Dist.] 2018, no pet.) (concluding that speech did not fall
within commercial-speech exemption because nonmovant had not “proposed a
commercial transaction” and did not make statements to secure business for
himself).
16
The alleged facilitation of the sale of Pohl’s client list to Kassab as PMG’s
counsel, followed by the creation of a business relationship with Kassab to become
Kassab’s co-counsel and share in the representation of the identified potential clients
for a shared fee, qualify as statements or conduct that arose out of a commercial
transaction involving the type of legal services Nicholson provided. See Miller
Weisbrod, 511 S.W.3d at 191.
Finally, the intended audience of the Nicholson defendants’ statement or
conduct were, first, Kassab, and then Pohl’s former clients. Nicholson’s alleged
involvement in selling the client list to Kassab and then using the client list to solicit
shared clients meets this fourth requirement. The intended audience were actual or
potential customers of Nicholson for the legal services she provides. See id.
Nicholson argues that Pohl’s allegations are not true and that Nicholson never
became an “attorney of record” in the barratry suits Kassab brought against Pohl.
Nicholson does not point to any record evidence in support of this position. And we
view the pleadings and evidence in the light most favorable to the non-movant.
Dolcefino, 540 S.W.3d at 199 (citing Cheniere Energy, Inc. v. Lotfi, 449 S.W.3d
210, 214 (Tex. App.—Houston [1st Dist.] 2014, no pet.)); MediaOne, L.L.C. v.
Henderson, 592 S.W.3d 933, 939 (Tex. App.—Tyler 2019, pet. denied).
Nicholson seeks to segregate its alleged activities to argue that it did not make
statements about its own legal services to potential buyers of those services when it
17
allegedly assisted PMG with the sale of the client list to Kassab. We do not agree
that the alleged conspiracy scheme can be severed to avoid the commercial-speech
exemption. Under Pohl’s allegations, these parties conspired to place his client list
in Kassab’s hands so that Kassab could pursue barratry claims against Pohl. The
Nicholson defendants’ alleged conduct in the conspiracy touched on all aspects of
the transfer and use of Pohl’s client list to obtain legal clients for Kassab, including
Nicholson’s alleged role as Kassab’s co-counsel in the barratry suits. See Elkins, 553
S.W.3d at 605 (noting broad reading of commercial-speech exemption phrase
“arising out of” by courts of appeals).
Thus, the commercial-speech exemption applies as to the claims against the
Nicholson defendants, leaving the TCPA summary-dismissal procedures
unavailable to that subset of defendant/movants.
C. The PMG defendants
Pohl’s petition alleges that PMG, now owned by Favre, stole his client list and
sold it for a profit to Kassab.
According to Favre’s affidavit, PMG’s marketing lists contain the names of
thousands of people who had been Pohl’s clients or from whom Pohl solicited
business. Favre averred that these lists have monetary value and constitute “one of
Precision’s most valuable assets.” According to Favre, PMG likely would have the
opportunity to sell the same client list to another buyer. This evidence meets the
18
requirement that PMG be primarily engaged in the business of selling goods—here,
client lists.
According to Pohl’s allegations, the PMG defendants obtained, maintained,
and used Pohl’s client list for their profit. PMG allegedly sold Pohl’s client list to
Kassab for Kassab to generate potential clients. Thus, the claims against the PMG
defendants are based on their alleged statements and conduct in their capacity as
sellers of the identified goods. See ETX Successor Tyler v. Pridgeon, 570 S.W.3d
392, 398 (Tex. App.—Tyler 2019, no pet.).
The alleged sale of Pohl’s client list for a profit qualifies as conduct that arose
out of a commercial transaction involving the type of goods PMG provides as a
marketing entity. See Woodhull Ventures 2015, L.P. v. Megatel Homes III, LLC, No.
03-18-00504-CV, 2019 WL 3310509, at *3 (Tex. App.—Austin July 24, 2019, no
pet.). Additionally, the intended audience of the PMG defendants’ statements or
conduct was Kassab, who became a customer of PMG’s when Kassab allegedly
bought the client list for his own use. The goods or services allegedly bought were
the type of goods or services PMG provides.
The PMG defendants argue that, even if the commercial-speech exception
applies to PMG, Pohl has identified no speech or conduct by Defendant Scott M.
Favre P.A., L.L.C. or Defendant Scott Favre, individually—separate from the speech
or conduct of PMG—that proposed a business transaction involving the sale of
19
goods or services to intended customers. In other words, the PMG defendants argue
that Pohl failed to show why an exemption to the TCPA applies to each and every
defendant/movant within the PMG group of defendants. But, in the same vein, the
PMG defendants failed to argue why the TCPA would apply to each of them
separately from the other two. At all times, when arguing for application of the
TCPA, the PMG defendants assert that they, collectively, exercised their protected
rights, thereby invoking the TCPA. Having chosen to rely on their collective activity
to invoke the TCPA, they seek to burden Pohl with the added requirement of
showing application of the exemption to each separately. The PMG defendants have
provided no legal authority to support aggregate analysis for coming within the
TCPA but segregation for purposes of applying the TCPA’s listed exemptions. See
TEX. R. APP. P. 38.1(i).
The commercial-speech exemption applies to the claims against the PMG
defendants, leaving the TCPA summary-dismissal procedures unavailable to that
subset of defendant/movants as well.
Conclusion
Because the commercial-speech exemption applies to all three groups of
defendant-movants, we conclude there was no error in the denial of all three TCPA
motions to dismiss. We have not analyzed and offer no view on the underlying
claims in this suit. We hold merely that the TCPA summary-dismissal procedures
20
are not available to these defendant-movants based on the claims asserted against
them.
We affirm the denial of the motions to dismiss and remand the suit to the trial
court for additional proceedings.
Sarah Beth Landau
Justice
Panel consists of Chief Justice Radack and Justices Landau and Hightower.
21
APPENDIX TAB 3
JUDGMENT
Court of Appeals
First District of Texas
NO. 01-18-01143-CV
LANCE CHRISTOPHER KASSAB, LANCE CHRISTOPHER KASSAB, P.C. D/B/A
THE KASSAB LAW FIRM, TINA NICHOLSON, BAKER NICHOLSON, LLP D/B/A
BAKER NICHOLSON LAW FIRM, SCOTT FAVRE, SCOTT M. FAVRE PUBLIC
ADJUSTER, LLC, AND PRECISION MARKETING GROUP, LLP, Appellants
MICHAEL A. POHL AND LAW OFFICE OF MICHAEL A. POHL, PLLC, Appellees
Appeal from the 189th District Court of Harris County. (Tr. Ct. No. 2018-58419).
This case is an appeal from the interlocutory denial of a TCPA motion by operation
of law on December 5, 2018. After submitting the case on the appellate record and the
arguments properly raised by the parties, the Court holds that the trial court’s order contains
no reversible error. Accordingly, the Court affirms the trial court’s order.
The Court orders that the appellants, LANCE CHRISTOPHER KASSAB, LANCE
CHRISTOPHER KASSAB, P.C. D/B/A THE KASSAB LAW FIRM, TINA
NICHOLSON, BAKER NICHOLSON, LLP D/B/A BAKER NICHOLSON LAW FIRM,
SCOTT FAVRE, SCOTT M. FAVRE PUBLIC ADJUSTER, LLC, AND PRECISION
MARKETING GROUP, LLP, jointly and severally, pay all appellate costs.
The Court orders that this decision be certified below for observance.
Judgment rendered September 17, 2020.
Panel consists of Chief Justice Radack and Justices Landau and Hightower. Opinion
delivered by Justice Landau.
APPENDIX TAB 4
2017 Tex. Civ. Prac. & Rem. Code § 27.010
2017 Texas Code Archive
Texas Statutes & Codes Annotated by LexisNexis® > Civil Practice and Remedies Code > Title 2 Trial,
Judgment, and Appeal > Subtitle B Trial Matters > Chapter 27 Actions Involving the Exercise of Certain
Constitutional Rights
Sec. 27.010. Exemptions.
(a) This chapter does not apply to an enforcement action that is brought in the name of this
state or a political subdivision of this state by the attorney general, a district attorney, a
criminal district attorney, or a county attorney.
(b) This chapter does not apply to a legal action brought against a person primarily engaged in
the business of selling or leasing goods or services, if the statement or conduct arises out of the
sale or lease of goods, services, or an insurance product, insurance services, or a commercial
transaction in which the intended audience is an actual or potential buyer or customer.
(c) This chapter does not apply to a legal action seeking recovery for bodily injury, wrongful
death, or survival or to statements made regarding that legal action.
(d) This chapter does not apply to a legal action brought under the Insurance Code or arising
out of an insurance contract.
History
Enacted by Acts 2011, 82nd Leg., ch. 341 (H.B. 2973), § 2, effective June 17, 2011; am. Acts
2013, 83rd Leg., ch. 1042 (H.B. 2935), § 3, effective June 14, 2013.
Texas Statutes & Codes Annotated by LexisNexis®
Copyright © 2020 All rights reserved.
End of Document
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:
David Kassab
Bar No. 24071351
david@kassab.law
Envelope ID: 49151702
Status as of 12/22/2020 7:14 AM CST
Associated Case Party: LanceChristopherKassab
Name BarNumber Email TimestampSubmitted Status
Lance Kassab eserve@kassab.law 12/21/2020 7:03:01 PM SENT
Kevin Dubose kdubose@adjtlaw.com 12/21/2020 7:03:01 PM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Marie Jamison jamison@wrightclosebarger.com 12/21/2020 7:03:01 PM SENT
Jessica Barger barger@wrightclosebarger.com 12/21/2020 7:03:01 PM SENT
Todd Taylor ttaylor@jandflaw.com 12/21/2020 7:03:01 PM SENT
Jocelyn Holland jholland@jandflaw.com 12/21/2020 7:03:01 PM SENT
Chris Pappas cpappas@krcl.com 12/21/2020 7:03:01 PM SENT
Andrew Sarne asarne@krcl.com 12/21/2020 7:03:01 PM SENT
Associated Case Party: Michael Pohl
Name BarNumber Email TimestampSubmitted Status
John Frizzell jfrizzell@reynoldsfrizzell.com 12/21/2020 7:03:01 PM SENT
Solace Southwick ssouthwick@reynoldsfrizzell.com 12/21/2020 7:03:01 PM SENT"
13,2020-09-17,2020-09-17 OPN 1stCOA-TCPA-Interlocutory-Appeal SIGNED,appellate,2020-09-17_OPN_1stCOA-TCPA-Interlocutory-Appeal_SIGNED.pdf,"Kassab v. Pohl
Court of Appeals of Texas, First District, Houston
September 17, 2020, Opinion Issued
NO. 01-18-01143-CV
Reporter
612 S.W.3d 571 *; 2020 Tex. App. LEXIS 7560 **; 2020 WL 5552459
were based on their alleged statements and
LANCE CHRISTOPHER KASSAB, LANCE
conduct in their capacity as sellers of legal
CHRISTOPHER KASSAB, P.C. D/B/A THE
services; [3]-The alleged sale of the lawyer's
KASSAB LAW FIRM, TINA NICHOLSON,
client list for a profit qualified as conduct that
BAKER NICHOLSON, LLP D/B/A BAKER
arose out of a commercial transaction
NICHOLSON LAW FIRM, SCOTT FAVRE,
involving the type of goods the entity provided
SCOTT M. FAVRE PUBLIC ADJUSTER, LLC,
as a marketing entity.
AND PRECISION MARKETING GROUP, LLP,
Appellants v. MICHAEL A. POHL AND LAW
Outcome
OFFICE OF MICHAEL A. POHL, PLLC,
Judgment affirmed in part and reversed and
Appellees
remanded in part.
Subsequent History: Petition for review
Counsel: For Appellant: Lance C. Kassab,
denied by Kassab v. Pohl, 2021 Tex. LEXIS
David Eric Kassab, The Kassab Law Firm,
154 (Tex., Feb. 26, 2021)
Kevin Dubose, Jessica Z. Barger, E. Marie
Jamison, Wright Close & Barger, LLP, Chris C.
Appeal dismissed by, Motion dismissed by, As
Pappas, Andrew J. Sarne, Kane Russell
moot Montague v. Michael A. Pohl & Law Off.
Coleman Logan PC, Houston, Texas; Todd
of Michael A. Pohl PLLC, 2023 Tex. App.
Taylor, Jocelyn A. Holland, Johanson &
LEXIS 865 (Tex. App. Houston 1st Dist., Feb.
Fairless, LLP, Sugar Land, Texas.
9, 2023)
For Appellee: Jean C. Frizzell, Solace Kirkland
Prior History: [**1] On Appeal from the 189th Southwick, Reynolds Frizzell LLP, Houston,
District Court, Harris County, Texas. Trial Texas.
Court Case No. 2018-58419.
Judges: Panel consists of Chief Justice
Case Summary
Radack and Justices Landau and Hightower.
Opinion by: Sarah Beth Landau
Overview
HOLDINGS: [1]-The legal services provider's Opinion
conduct that was alleged to be tortious
involved the alleged conspiracy to steal,
sell/buy, and use the client list for later client
[*573] Michael A. Pohl and his law firm, Law
solicitation, and its statements or conduct
Office of Michael A. Pohl, PLLC, sued four
arose out of a commercial transaction
groups of individuals and entities for allegedly
involving the kind of goods or services it
conspiring to steal Pohl's client lists and other
provided; [2]-The claims against the sellers
property to pursue barratry claims against him.
Page 2 of 10
612 S.W.3d 571, *573; 2020 Tex. App. LEXIS 7560, **1
Three of the four groups filed motions to ""marketing"" in nature. The three men are Scott
dismiss under the Texas Citizens Participation Walker, Steve Seymour, and Kirk Ladner.
Act.1 They are (1) Lance Christopher Kassab They are alleged to have performed these
and Lance Christopher Kassab, P.C. d/b/a The actions individually and as part of an entity,
Kassab Law firm; (2) Tina Nicholson and Precision Marketing Group, LLC (PMG).
Baker Nicholson, LLP d/b/a Baker Nicholson
Pohl represented hundreds of plaintiffs in suits
Law Firm; and (3) Scott Favre, Scott M. Favre
against BP Petroleum. A list of his actual and
Public Adjuster, LLC, and Precision Marketing
prospective clients was maintained by PMG for
Group, LLP. Their three TCPA motions were
its business dealings with Pohl.
overruled by operation of law. The movants
brought this interlocutory appeal of the denial
of their motions.
The Mississippi federal litigation
We affirm.
The Mississippi federal litigation began [**3] in
2014. Walker, Seymour, and Ladner—
individually and as PMG—sued Pohl, Pohl's
Background
law firm, and other Texas attorneys and their
This is the fourth wave of litigation involving law firms in federal court in Mississippi. They
these parties. We will briefly discuss [*574] claimed they provided ""marketing services"" for
the past litigation that led to this suit as it is Pohl and brought in ""millions of dollars of
relevant to the issues being decided now. claims each week"" to Pohl's firm. They
asserted that Pohl did not pay them the agreed
fee for their services. They presented their
BP Horizon litigation claims as causes of action for fraud, unjust
enrichment, and breach of an agreement to
The BP Horizon litigation began shortly after
pay for services.
the BP Deepwater [**2] Horizon oil spill in the
Gulf of Mexico in 2010. Michael Pohl, who is a Pohl moved to dismiss the claims against him,
Texas attorney, was interested in representing arguing that the alleged contract was illegal
Mississippi residents in litigation against BP and unenforceable because, under Mississippi
Petroleum. He allegedly entered into a law, it is illegal to accept money to begin or
business relationship with three men in prosecute litigation. In other words, PMG
Mississippi, agreeing to pay them a finder's fee engaged in illegal solicitation on Pohl's behalf
for clients they solicited and a percentage of so the plaintiffs cannot enforce the contract to
attorney's fees recovered after the solicited pay for those services.
clients' cases settled. There is evidence that
the three men contacted people and The federal court denied Pohl's dismissal
businesses in Mississippi to determine if they motion in 2016, concluding that the PMG
might have a claim against BP, encouraged affiliated plaintiffs never alleged they accepted
those people to retain Pohl as their attorney, money to begin or prosecute litigation in
and were paid over $5 million in ""barratry violation of Mississippi law. They alleged,
pass-through money"" for their services. There instead, that they were owed money for public
are contrary assertions that the services were relations and marketing services. After that
ruling, the parties settled all their pending [**4]
claims against each other, as reflected in the
1 See Tex. Civ. Prac. & Rem. Code §§ 27.001-.011. This suit court's sua sponte judgment of dismissal
involved the pre-September 1, 2019 version of the TCPA.
Page 3 of 10
612 S.W.3d 571, *574; 2020 Tex. App. LEXIS 7560, **4
entered in April 2017.
This suit
The barratry litigation The fourth litigation in this series is this suit.
Pohl sued Kassab, Favre, PMG, Nichols, and
The barratry litigation began in 2017 after others in Harris County district court in 2018.
Lance Kassab, a Texas attorney, was alerted He asserts four causes of action: (1) a
to the Mississippi federal litigation by a conversion claim against all defendants,
Mississippi acquaintance. Kassab specializes alleging they stole his property, including his
in legal malpractice claims. After hearing about client list and contracts; (2) a theft-of-trade-
Pohl's client-solicitation activities in secrets claim against all defendants, arguing
Mississippi, Kassab began researching the that his client list and other stolen proprietary
matter. He met with Scott Favre (who had information are trade secrets; (3) a civil
bought PMG from Walker and Ladner) and conspiracy claim against all defendants based
with Tina Nicholson (Favre's and PMG's legal on these same alleged acts of theft; and (4) a
counsel). Favre informed Kassab that, when breach-of-contract claim against just Favre
he bought PMG, he acquired files related to and PMG, alleging they breached the
Pohl. Favre transferred information from those settlement agreement in the Mississippi
PMG files to Kassab, including Pohl's client federal litigation by assisting his former
list. Kassab paid Favre. It is disputed whether clients [**6] with their litigation against him.
the payment was for Pohl's client list or for
Favre's expertise. Pohl's pleading alleges that Favre is the
current managing member of PMG, that Pohl
After getting Pohl's client list, Kassab prepared engaged PMG to provide ""public relations
an advertisement letter. According to Kassab's services"" and ""to screen and liaise with Pohl's
affidavit, he obtained pre-approval [*575] clients/prospective clients,"" and that, ""[w]hile
from the State Bar of Texas for the working for Pohl, [PMG] gained access to
advertisement letter before using it. After the Pohl's confidential and proprietary information
advertisement letter was approved, he sent it and property, includ[ing] trade secret
to the people on the Pohl client list. The letter materials, that included the identities of Pohl's
informed the recipients ""that [**5] they may clients/prospective clients as well as their
have been a victim of barratry"" and may ""be detailed contact information . . . [and] actual
entitled to file civil claims against Pohl"" under attorney-client fee agreements . . . [and] other
the Texas civil barratry statute. confidential communications between the
clients/prospective clients and Pohl."" Pohl
Hundreds of Mississippi residents responded
contends the defendants ""engaged in a
to Kassab's advertisement letter. More than
scheme pursuant to which they illegally
400 signed representation contracts with
obtained, maintained, and used trade secrets
Kassab's firm to pursue barratry claims against
and other confidential information and property
Pohl. Kassab filed four barratry suits against
belonging to Pohl."" Specifically, Pohl alleges
Pohl in Harris County district courts, each with
the defendants stole his client list and sold it to
multiple named plaintiffs. The barratry litigation
Kassab, who then used it to solicit clients to
is on-going.2
pursue barratry claims against Pohl.
Pohl's pleading also alleges that ""Favre and
2 Relying on the materials received during discovery in the
barratry litigation, Kassab filed a grievance against Pohl with
the State Bar of Texas. There is no indication in the record of the status of that grievance.
Page 4 of 10
612 S.W.3d 571, *575; 2020 Tex. App. LEXIS 7560, **6
Precision [PMG] executed a settlement require, by motion, a threshold testing of the
agreement with Pohl"" at the end of the merits of legal proceedings or filings that are
Mississippi federal litigation in which ""they deemed to implicate the expressive interests
agreed to return to [**7] Pohl certain protected by the statute, with the remedies of
information in their and their counsel's expedited dismissal, cost-shifting, and
possession . . . [and] to permanently delete[] sanctions for any found wanting."" Serafine v.
such electronically-stored information."" In the Blunt, 466 S.W.3d 352, 369 (Tex. App.—
settlement agreement, according to Pohl, Austin 2015, no pet.) (Pemberton, J.,
Favre and PMG also ""warranted that they had concurring); see Tex. Civ. Prac. & Rem. Code
not caused any suit or action to be filed §§ 27.003-.005, .009.
against Pohl.""
Pohl's suit seeks damages in excess of $1 A. TCPA's dismissal provision and relevant
million. statutory definitions
The defendants answered. They grouped into
Section 27.003 of the TCPA provides that a
three subsets, and each subset filed a TCPA
party may move to dismiss a legal action that
motion to dismiss, alleging that Pohl filed his
""is based on, relates to, or is in response to
suit in retaliation for their disclosure of his
[that] party's exercise of"" one of three rights:
alleged barratry activity. They argued that the
free speech, petition, or association. Id. §
TCPA applies because Pohl's claims relate to
27.003(a). The Legislature statutorily defined
their recognized statutory rights and that Pohl
the three sets of rights protected by TCPA
could not establish a prima facie case for his
summary-dismissal procedures. Id. §
causes of action. Their motions sought
27.001(2) (defining ""exercise of the right of
dismissal [*576] of Pohl's claims. The trial
association"" as ""a communication between
court held hearings on the motions to dismiss
individuals who join together to collectively
but did not rule. All three dismissal motions
express, promote, pursue, or defend common
were overruled by operation of law. The
interests""); § 27.001(3) (defining ""exercise of
movants have appealed.
the right of free speech"" [**9] as ""a
communication made in connection with a
matter of public concern""); § 27.001(4)
Texas Citizens Participation Act
(defining ""exercise of the right to petition"" as ""a
communication in or pertaining to"" various
The movants sought dismissal of Pohl's claims
specifically listed proceedings, including ""a
against them under the Texas Citizens
judicial proceeding,"" as well as the more
Participation Act. See Tex. Civ. Prac. & Rem.
general category of ""any other communication
Code §§ 27.001-.011. The TCPA is found in
that falls within the protection of the right to
Chapter 27 of the Civil Practice and Remedies
petition government under the Constitution of
Code, which is titled ""Actions Involving the
the United States or the constitution of this
Exercise [**8] of Certain Constitutional
state"").
Rights."" The TCPA's purpose is to protect
""citizens who petition or speak on matters of
public concern from retaliatory lawsuits that
B. TCPA's shifting burdens
seek to intimidate or silence them."" In re
Lipsky, 460 S.W.3d 579, 584 (Tex. 2015). It
When a movant seeks dismissal under the
does so by creating a ""set of procedural
TCPA, the movant has the initial burden to
mechanisms through which a litigant may
Page 5 of 10
612 S.W.3d 571, *576; 2020 Tex. App. LEXIS 7560, **9
show by a preponderance of the evidence that burden-shifting requirements by showing that
the nonmovant has asserted a ""legal action"" one of the TCPA's several exemptions applies.
that is based on, relates to, or is in response to See Tex. Civ. Prac. & Rem. Code § 27.010.
the movant's exercise of one of the three rights Among them is the commercial-speech
delineated in the statute. Id. § 27.005(b). If the exemption. Id. § 27.010(b).3 It provides that the
movant meets that burden, the burden shifts to TCPA does not apply to, and therefore is not a
the nonmovant. vehicle to achieve dismissal of, a legal action
brought against a person ""primarily engaged in
The nonmovant has the burden to establish by the business of selling or leasing goods or
clear and specific evidence a ""prima facie case services,"" if the statement or conduct
for each essential element of the claim in connected to the exercise of [**11] one of the
question."" Id. § 27.005(c). This generally statutory rights ""arises out of the sale or lease
""requires only the minimum quantum of of goods, services . . . or a commercial
evidence necessary to support a rational transaction in which the intended audience is
inference that the allegation of fact is true."" In an actual or potential buyer or customer."" Tex.
re E.I. DuPont de Nemours & Co., 136 S.W.3d Civ. Prac. & Rem. Code § 27.010(b). The party
218, 223 (Tex. 2004) (orig. proceeding) asserting the commercial-speech exemption
(internal quotation marks and citation [**10] has the burden to prove that the exemption
omitted). ""Prima facie evidence is evidence applies to the communications at issue.
that, until its effect is overcome by other Schmidt v. Crawford, 584 S.W.3d 640, 652-53
evidence, will suffice as proof of a fact in (Tex. App.—Houston [1st Dist.] 2019, no pet.).
issue."" Rehak Creative Servs., Inc. v. Witt, 404
S.W.3d 716, 726 (Tex. App.—Houston [14th
Dist.] 2013, pet. denied) (citation omitted) D. Standard of review
(disapproved of on other grounds, In re Lipsky,
460 S.W.3d at 587-88); cf. Kerlin v. Arias, 274 We review a trial court's ruling on a TCPA
S.W.3d 666, 668 [*577] (Tex. 2008) (per motion to dismiss de novo. Porter-Garcia v.
curiam) (explaining that summary-judgment Travis Law Firm, P.C., 564 S.W.3d 75, 83
movant's presentation of prima facie evidence (Tex. App.—Houston [1st Dist.] 2018, pet.
of deed's validity established right to summary denied). We consider the pleadings and
judgment unless nonmovants presented evidence in the light favorable to the
evidence raising fact issue related to deed's nonmovant. Id. at 84; Dolcefino v. Cypress
validity). Creek EMS, 540 S.W.3d 194, 199 (Tex.
App.—Houston [1st Dist.] 2017, no pet.).
Dismissal may be required, despite the
nonmovant's evidence proffered to meet his To the extent resolution of this appeal turns on
prima facie burden, if the movant establishes construction of the TCPA, we review that de
""by a preponderance of the evidence each novo as well. Lippincott v. Whisenhunt, 462
essential element of a valid defense to the S.W.3d 507, 509 (Tex. 2015). When
nonmovant's claim."" Id. § 27.005(d). construing the TCPA, as with any other
statute, our objective is to give effect to the
C. Exemptions to applicability of TCPA
dismissal procedures
3 Case law sometimes refers to the exemption as an
exception. See Bejarano v. Dorgan, No. 03-19-00182-CV,
A nonmovant plaintiff can avoid the TCPA's 2019 Tex. App. LEXIS 8364, 2019 WL 4458798, at *2 (Tex.
App.—Austin Sept. 18, 2019, no pet.).
Page 6 of 10
612 S.W.3d 571, *577; 2020 Tex. App. LEXIS 7560, **11
legislative intent, looking first to the statute's 684, 688 (Tex. 2018) (per curiam). Pohl sued
plain language. Id. If that language is the three sets of movants for their role in the
unambiguous, ""we interpret the statute alleged theft and sale of his client information
according to its plain meaning."" Id. to Kassab that enabled Kassab to contact
Additionally, we construe the TCPA ""liberally to those clients to provide legal services in
effectuate its purpose and intent fully."" Tex. pursuit of barratry claims against Pohl. In our
Civ. Prac. & Rem. Code § 27.011(b); see State view, all four Castleman factors are met for
ex rel. Best v. Harper, 562 S.W.3d 1, 11 (Tex. each set of defendant-appellants. We begin
2018). with the [**13] Kassab defendants.
The Commercial-Speech Exemption A. The Kassab defendants
Applies
Pohl's petition alleges that Kassab bought
The commercial-speech exemption provides Pohl's client list from PMG so that Kassab
that the TCPA does not apply to a suit against could send advertisements to Pohl's former
a defendant who is ""primarily engaged in the clients and solicit them to become Kassab's
business of selling or leasing goods or clients in barratry suits against Pohl.
services, if [**12] the statement or conduct
Kassab and his firm are in the business of
arises out of the sale or lease of goods,
selling legal services. Other cases have
services . . . or a commercial transaction in
recognized that attorney efforts to engage
which the intended audience is an actual or
prospective clients and provide them with paid
potential buyer or customer."" Tex. Civ. Prac. &
legal services meet the first element of the
Rem. Code § 27.010(b). The Texas Supreme
Castleman test. See Miller Weisbrod, L.L.P. v.
Court has identified four elements to this
Llamas-Soforo, 511 S.W.3d 181, 189 (Tex.
exemption:
App.—El Paso 2014, no pet.) (stating that
(1) the defendant (TCPA movant) was
""case law appears settled [that] lawyer
primarily engaged in the business of selling
advertising is commercial speech"") (internal
or leasing goods or services;
quotation marks omitted); see also NCDR,
[*578] (2) the defendant made the L.L.C. v. Mauze & Bagby, P.L.L.C., 745 F.3d
statement or engaged in the conduct on 742, 754-55 (5th Cir. 2014) (applying Texas
which the plaintiff's claim is based in its law).
capacity as a seller or lessor of those
goods and services; According to Pohl's allegations, the Kassab
defendants arranged with the PMG
(3) the statement or conduct at issue arose defendants, with the help of the Nicholson
out of a commercial transaction involving attorney defendants, to obtain, maintain, and
the kind of goods or services that the use Pohl's client list and his other proprietary
defendant provides; and information for their profit. Kassab allegedly
entered into a business transaction to
(4) the intended audience of the statement
purchase the client list and then sent
or conduct were actual or potential
advertisements to those on the list to offer his
customers of the defendant for the kind of
legal services to the potential clients. Thus, the
goods or services the defendant provides.
claims against the Kassab defendants are
Castleman v. Internet Money Ltd., 546 S.W.3d based on their alleged statements and conduct
Page 7 of 10
612 S.W.3d 571, *578; 2020 Tex. App. LEXIS 7560, **13
in their capacity as sellers [**14] of legal The commercial-speech exemption applies to
services. See Miller Weisbrod, 511 S.W.3d at statements and conduct. Kassab's conduct
191 (concluding that attorney advertisement to that is alleged to be tortious involved the
people who might have a medical malpractice alleged conspiracy to steal, sell/buy, and use
claim against a specific physician identified in the client list for later client solicitation. We
the advertisement was created ""primarily to conclude Kassab's statements or conduct
attract clients allegedly injured by [the arose out of a commercial transaction
identified physician]""); NCDR, 745 F.3d at 745- involving the kind of goods or services Kassab
53 (applying Texas law, holding that attorneys provides. See Robert B. James, DDS, Inc. v.
who advertised about a national chain of Elkins, 553 S.W.3d 596, 605 (Tex. App.—San
dental clinics being under government Antonio 2018, pet. denied) (stating that courts
investigation and possibly engaging in of appeals have construed phrase ""arising out
unnecessary and harmful dental work on of"" in TCPA's commercial-speech exemption
children were ""primarily engaged in selling broadly to include statements and conduct that
legal services to clients and that the ads are ""ancillary to"" a commercial transaction).
offered those services to potential customers"").
Finally, the intended audience of the Kassab
Further, the alleged purchase of Pohl client list defendants' statement or conduct were
for those clients' contact information, followed individuals with potential [**16] legal claims
by the mailing of attorney advertisements to who Kassab sought to represent in barratry
those individuals about specific types of claims suits against Pohl. These were Kassab's
they might be able to pursue against a potential clients to whom he offered the kind of
specifically identified attorney, qualifies as legal services he provides. See id.
statements or conduct that arose out of a
Thus, the commercial-speech exemption
commercial transaction involving the type of
applies as to the claims against the Kassab
legal services Kassab provides. See Miller
defendants, leaving the TCPA summary-
Weisbrod, 511 [*579] S.W.3d at 191
dismissal procedures unavailable to that
(concluding that attorneys' speech ""arose from
subset of defendant/movants. See Castleman,
the sale of their legal services to potential
546 S.W.3d at 691 (under different facts,
customers"" reached through their attorney
concluding that nonmovant's statements did
advertisements).
not arise out of his sale of goods or services
Kassab argues that Pohl's claims do because he was ""not pursuing business for
not [**15] arise out of his conduct because the himself"" when he made the statements).
alleged theft of the client list would have
preceded the advertisements to Pohl's former
clients, who were Kassab's potential clients. B. The Nicholson defendants
We do not agree that the alleged tortious acts
Pohl's petition alleges that Tina Nicholson and
can be divided in such a way to avoid the
her law firm assisted PMG, as its counsel, in
commercial-speech exemption. Kassab was
selling his client list to Kassab and then
sued for buying an allegedly stolen client list
entered into a business relationship with
that identified people solicited by another
Kassab to assist in providing legal services to
attorney in the past and then targeting those
the identified clients for a shared fee.
same people to sue the other attorney. Pohl
alleges a conspiracy to undertake this scheme.
Nicholson and her firm are in the business of
selling legal services. Attorney efforts to
Page 8 of 10
612 S.W.3d 571, *579; 2020 Tex. App. LEXIS 7560, **16
engage prospective clients and provide them list to solicit shared clients meets this fourth
with paid legal services meet the first element requirement. The intended audience were
of the Castleman test. See Miller Weisbrod, actual or potential customers of Nicholson for
511 S.W.3d at 189 (stating that ""case law the legal services she provides. See id.
appears settled [that] lawyer advertising is
commercial speech"") (internal quotation marks Nicholson argues that Pohl's allegations are
omitted). not true and that Nicholson never became an
""attorney of record"" in the barratry suits
According [**17] to Pohl's allegations, the Kassab brought against Pohl. Nicholson does
Nicholson defendants arranged with the PMG not point to any record evidence in support of
defendants to obtain, maintain, and use Pohl's this position. And we view the pleadings and
client list and his other proprietary information evidence in the light most favorable to the non-
for their profit. Nicholson allegedly facilitated movant. Dolcefino, 540 S.W.3d at 199 (citing
the sale to Kassab and became his co-counsel Cheniere Energy, Inc. v. Lotfi, 449 S.W.3d
in pursuing legal claims against Pohl on behalf 210, 214 (Tex. App.—Houston [1st Dist.] 2014,
of Pohl's former clients, for a legal fee. Thus, no pet.)); MediaOne, L.L.C. v. Henderson, 592
the claims against the Nicholson defendants S.W.3d 933, 939 (Tex. App.—Tyler 2019, pet.
are based on their alleged statements and denied).
conduct in their capacity as sellers of legal
services. See Miller Weisbrod, 511 S.W.3d Nicholson seeks to segregate its alleged
[*580] at 191; NCDR, 745 F.3d at 745-53; cf. activities to argue that it did not make
Toth v. Sears Home Improvement Prods., Inc., statements about its own legal services to
557 S.W.3d 142, 154 (Tex. App.—Houston potential buyers of those services when it
[14th Dist.] 2018, no pet.) (concluding that allegedly assisted PMG with the sale of the
speech did not fall within commercial-speech client list to Kassab. We do not agree that the
exemption because nonmovant had not alleged conspiracy scheme can be severed to
""proposed a commercial transaction"" and did avoid the commercial-speech exemption.
not make statements to secure business for Under Pohl's allegations, these parties
himself). conspired to place his client list in Kassab's
hands so that Kassab could pursue barratry
The alleged facilitation of the sale of Pohl's claims against Pohl. The Nicholson
client list to Kassab as PMG's counsel, defendants' alleged conduct in the
followed by the creation of a business conspiracy [**19] touched on all aspects of
relationship with Kassab to become Kassab's the transfer and use of Pohl's client list to
co-counsel and share in the representation of obtain legal clients for Kassab, including
the identified potential clients for a shared fee, Nicholson's alleged role as Kassab's co-
qualify as statements or conduct that arose out counsel in the barratry suits. See Elkins, 553
of a commercial transaction involving the type S.W.3d at 605 (noting broad reading of
of legal services Nicholson provided. See commercial-speech exemption phrase ""arising
Miller Weisbrod, 511 S.W.3d at 191. out of"" by courts of appeals).
Finally, the intended audience of the Nicholson Thus, the commercial-speech exemption
defendants' statement or conduct were, [**18] applies as to the claims against the Nicholson
first, Kassab, and then Pohl's former clients. defendants, leaving the TCPA summary-
Nicholson's alleged involvement in selling the dismissal procedures unavailable to that
client list to Kassab and then using the client subset of defendant/movants.
Page 9 of 10
612 S.W.3d 571, *580; 2020 Tex. App. LEXIS 7560, **19
The PMG defendants argue that, even if the
C. The PMG defendants commercial-speech exception applies to PMG,
Pohl has identified no speech or conduct by
Pohl's petition alleges that PMG, now owned
Defendant Scott M. Favre P.A., L.L.C. or
by Favre, stole his client list and sold it for a
Defendant Scott Favre, individually—separate
profit to Kassab.
from the speech or conduct of PMG—that
proposed a business transaction involving the
According to Favre's affidavit, PMG's
sale of goods or services to intended
marketing lists contain the names of
customers. In other words, the PMG
thousands of people who had been Pohl's
defendants argue that Pohl failed to show why
clients or from whom Pohl solicited business.
an exemption [**21] to the TCPA applies to
Favre averred that these lists have monetary
each and every defendant/movant within the
value and constitute ""one of Precision's most
PMG group of defendants. But, in the same
valuable assets."" According to Favre, PMG
vein, the PMG defendants failed to argue why
likely would have the opportunity to sell the
the TCPA would apply to each of them
same client list to another buyer. This
separately from the other two. At all times,
evidence meets the requirement that PMG be
when arguing for application of the TCPA, the
primarily engaged in the business of selling
PMG defendants assert that they, collectively,
goods—here, client lists.
exercised their protected rights, thereby
[*581] According to Pohl's allegations, the invoking the TCPA. Having chosen to rely on
PMG defendants obtained, maintained, and their collective activity to invoke the TCPA,
used Pohl's client [**20] list for their profit. they seek to burden Pohl with the added
PMG allegedly sold Pohl's client list to Kassab requirement of showing application of the
for Kassab to generate potential clients. Thus, exemption to each separately. The PMG
the claims against the PMG defendants are defendants have provided no legal authority to
based on their alleged statements and conduct support aggregate analysis for coming within
in their capacity as sellers of the identified the TCPA but segregation for purposes of
goods. See ETX Successor Tyler v. Pridgeon, applying the TCPA's listed exemptions. See
570 S.W.3d 392, 398 (Tex. App.—Tyler 2019, TEX. R. APP. P. 38.1(i).
no pet.).
The commercial-speech exemption applies to
the claims against the PMG defendants,
The alleged sale of Pohl's client list for a profit
leaving the TCPA summary-dismissal
qualifies as conduct that arose out of a
procedures unavailable to that subset of
commercial transaction involving the type of
defendant/movants as well.
goods PMG provides as a marketing entity.
See Woodhull Ventures 2015, L.P. v. Megatel
Homes III, LLC, No. 03-18-00504-CV, 2019
Conclusion
Tex. App. LEXIS 6276, 2019 WL 3310509, at
*3 (Tex. App.—Austin July 24, 2019, no pet.). Because the commercial-speech exemption
Additionally, the intended audience of the applies to all three groups of defendant-
PMG defendants' statements or conduct was movants, we conclude there was no error in
Kassab, who became a customer of PMG's the denial of all three TCPA motions to
when Kassab allegedly bought the client list for dismiss. We have not analyzed and offer no
his own use. The goods or services allegedly view on the underlying claims in this
bought were the type of goods or services suit. [**22] We hold merely that the TCPA
PMG provides.
Page 10 of 10
612 S.W.3d 571, *581; 2020 Tex. App. LEXIS 7560, **22
summary-dismissal procedures are not
available to these defendant-movants based
on the claims asserted against them.
We affirm the denial of the motions to dismiss
and remand the suit to the trial court for
additional proceedings.
Sarah Beth Landau
Justice
End of Document"
12,2019-06-28,2019-06-28 RPL Nicholson-Reply-Brief-TCPA FILED,appellate,2019-06-28_RPL_Nicholson-Reply-Brief-TCPA_FILED.pdf,"KASSAB v. POHL
No. 01-18-01143-CV
COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON
June 28, 2019
Reporter
2019 TX APP. CT. BRIEFS LEXIS 10951 *
LANCE CHRISTOPHER KASSAB AND LANCE CHRISTOPHER KASSAB, P.C. D/B/A THE
KASSAB LAW FIRM, ET AL. Appellants v. MICHAEL A. POHL, ET AL. Appellees
Type: Brief
Prior History: Interlocutory Appeal from the 189th District Court Harris County, Texas, Hon.
Scot ""Dolli"" Dollinger. Trial Court Cause No. 2018-58419.
Counsel
Jessica Z. Barger, E. Marie Jamison, WRIGHT CLOSE & BARGER, LLP, Houston, Texas, Chris
C. Pappas, Andrew J. Sarne, KANE RUSSELL COLEMAN LOGAN PC, Houston, Texas,
Counsel for Appellants , Tina Nicholson and Baker Nicholson, LLP d/b/a Baker Nicholson Law
Firm.
Title
REPLY BRIEF OF APPELLANTS TINA NICHOLSON AND BAKER NICHOLSON, LLP
D/B/A BAKER NICHOLSON LAW FIRM
Text
[*1] TO THE HONORABLE COURT OF APPEALS:
Appellants Tina Nicholson and Baker Nicholson, LLP d/b/a Baker Nicholson Law Firm
(collectively ""Baker Nicholson"") file their Reply Brief and respectfully show the Court as follows.
PRELIMINARY STATEMENT
Pohl delayed the initiation of this suit for years after the event that forms the basis of his
claims-the alleged theft of his information-because, in his own words, he was ""preoccupied"" and
simply ""neglected to do"" so. The timing of this legal action makes clear that what finally
motivated Pohl to sue Baker Nicholson was the barratry lawsuits, making this a classic SLAPP
that should be dismissed under the TCPA. Pohl has not directly addressed Baker Nicholson's
arguments in support of dismissal. Instead, Pohl seeks to avoid the inescapable conclusion that
he did not have a good-faith belief that he owns former client files and marketing information, or
that such information is a trade secret, or the information was stolen based on conclusory and
vague allegations. Because that is not the clear and specific evidence the TCPA requires, Baker
Nicholson's motion to dismiss should have been granted.
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2019 TX APP. CT. BRIEFS LEXIS 10951, *1
ARGUMENT IN REPLY
I. Baker Nicholson satisfied [*2] its burden to show the TCPA applies.
Pohl contends that Baker Nicholson, along with Kassab and Favre, have recast his claims for
conversion, TUTSA violations, 1 and civil conspiracy to implicate the TCPA and failed to offer
any evidence of a connection between the facts he alleges and the exercise of a protected right.
See Appellees' Br. at 16-18. To the extent Pohl's argument is that the conversion of information
or theft of trade secrets is wrongful conduct that could never trigger the TCPA, the Court should
reject the argument to avoid rendering the TCPA meaningless. A TCPA movant is a movant
precisely because someone has alleged it acted wrongfully. To the extent Pohl's argument is
that Baker Nicholson has misconstrued his pleadings to fabricate a connection between the
filing of this lawsuit and Baker Nicholson's exercise of a protected right, the Court should also
reject the argument because Baker Nicholson established by a preponderance of the evidence
that the TCPA applies. See TEX. CIV. PRAC. & REM. CODE § 27.005(b).
A. Pohl does not challenge that the communications and meetings [*3] between the
appellants were an exercise of a protected right.
Pohl does not directly address whether Baker Nicholson exercised a protected right by
communicating and meeting with the appellants to identify potential victims of Pohl's solicitation
scheme and collaborating to bring subsequent barratry lawsuits against Pohl. For instance, Pohl
does not dispute that Baker Nicholson's meetings and discussions with the appellants regarding
the solicitation scheme are communications ""between individuals who join together to
collectively express, promote, pursue, or defend common interests."" TEX. CIV. PRAC. & REM.
CODE § 27.001(2) (defining exercise of right of association). Nor does Pohl challenge that
Baker Nicholson's contacts were made in connection with a ""matter of public concern."" Pohl
merely characterizes the conduct as theft and asserts theft is not ""facially subject to a TCPA
challenge."" As explained above, such interpretation of the statute would render it meaningless
and should be rejected by the Court.
Tellingly, Pohl does not challenge any of the following evidence or authority establishing Baker
Nicholson's actions were an exercise of its right to freely speak, associate, [*4] and petition, all
of which are raised in Baker Nicholson's Opening Brief:
. Accessing and sharing the client and solicitation data with others, as alleged by Pohl,
involves ""communications"" as defined by the TCPA. See TEX. CIV. PRAC. & REM. CODE
§ 27.001(1).
. Pohl's allegations that the appellants ""conspired"" among themselves to misappropriate the
data and use it to file barratry lawsuits would necessarily involve ""communications."" See
TEX. CIV. PRAC. & REM. CODE § 27.001(1); see also Craig v. Tejas Promotions, LLC,
550 S.W.3d 287, 296-97 (Tex. App.-Austin 2018, pet. filed) (recognizing that conspiring to
misappropriate trade secrets involved a TCPA ""communication"").
1 Texas Uniform Trade Secrets Act. See TEX. CIV. PRAC. & REM. CODE §§ 134A.001-.008.
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2019 TX APP. CT. BRIEFS LEXIS 10951, *4
. Baker Nicholson's ""communications"" were made by individuals who ""join[ed] together to
collectively express, promote, pursue, or defend common interests""-the common interest
being (i) exposing Pohl's unethical conduct, (ii) filing barratry claims against Pohl, and (iii)
representing clients in barratry litigation against Pohl. See TEX. CIV. PRAC. & REM.
CODE § 27.001(2).
. Lawyer misconduct and unethical legal services in the marketplace are matters of public
concern. TEX. CIV. PRAC. & REM. CODE § 27.001(7)
. A lawyer's representation of his clients and [*5] the practice of law constitute a matter of
public concern. See Bacharach v. Doe, No. 14-14-00947-CV, 2016 WL 269958, at *3 (Tex.
App.-Houston [14th Dist.] Jan. 21, 2016, no pet.); Daver v. Desai, 483 S.W.3d 668, 673
(Tex. App.-Houston [14th Dist.] 2015, no pet.) (holding that lawyer's ability to represent
clients is matter of public concern under TCPA); Avila v. Larrea, 394 S.W.3d 646, 655 (Tex.
App.-Dallas 2012, pet. denied) (holding that communication about lawyer's handling of cases
is matter of public concern within TPCA).
. Appellants' ""communications"" concerned Pohl's representation of his former clients, Pohl's
abuse of his position as an attorney, and Kassab's potential representation of the former
clients for claims of barratry against Pohl. Under Texas law, the substance of these
""communications"" is a matter of public concern.
See Baker Nicholson's Br. at 37-42.
Pohl makes no effort in his Response Brief to distinguish these cases or counter the evidence
of Baker Nicholson's communications, nor does he cite any contrary authority. See Appellees'
Br. at 15-20. Instead, Pohl focuses on whether his suit was retaliatory, which it was, but as
explained below, is not the standard for a TCPA dismissal. He does not directly challenge that
the communications and meeting were an exercise of Baker Nicholson's rights of free speech,
association, or petitioning. See id.
B. The TCPA does [*6] not require proof of retaliation.
Pohl contends that the Court should affirm the denial of Baker Nicholson's motion to dismiss
because Baker Nicholson has not provided Pohl's lawsuit is retaliatory. ""Retaliation is not a
requirement the statute imposes."" Arey v. Shipman Agency, Inc., No. 10-18-00100-CV, 2019
WL 1966896, at *2 n.1 (Tex. App.-Waco May 1, 2019, no pet. h.) (rejecting appellant's argument
that TCPA movant must prove retaliation as ""an improper effort to narrow the scope of the TCPA
by reading language into the statute that is not there and will not be followed""). The statute only
requires a showing by a preponderance of the evidence that Pohl's legal action is based on,
relates to, or is in response to Baker Nicholson's exercise of a protected right. See TEX. CIV.
PRAC. & REM. CODE § 27.005(b). Baker Nicholson made that showing.
Pohl's liability theory against the appellants is that they allegedly accessed client and marketing
information, collaborated to identify potential clients to represent in barratry proceedings, and
jointly filed barratry lawsuits against Pohl:
. ""Favre and Nicholson … gained access to … information about and/or communications
with as many as 10,000 or more of Pohl's clients/prospective clients."" 1 CR 9.
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2019 TX APP. CT. BRIEFS LEXIS 10951, *6
. ""Favre, with [*7] Nicholson or with Nicholson's . . . assistance, then . . . sold Pohl's . . .
information . . . to Kassab and Montague."" 1 CR 9.
. ""Kassab is a lawyer who specializes in suing other lawyers . . . saw the value of . . . the
information and property because it provided him the ability to contact and solicit Pohl's
clients/prospective clients."" Id.
. Using the . . . information . . ., Kassab solicited those clients/prospective clients to act as
plaintiffs and, joined by Nicholson and Montague, to bring cases against Pohl for alleged
barratry and other claims. 1 CR 9-10.
The record clearly demonstrates that Pohl's theft claims against Baker Nicholson are
based on the factual allegations that Baker Nicholson communicated and collaborated with the
appellants to identify and contact prospective clients to represent in the barratry lawsuits and to
file civil barratry suits against Pohl. See Serafine v. Blunt, 466 S.W.3d 352, 391 (Tex. App.-
Austin 2015, no pet.) (Pemberton, J., concurring) (explaining that phrase ""based on"" focuses on
factual bases underlying legal action; facts on which liability is based). Likewise, Pohl's lawsuit
relates to Baker Nicholson's contacts with the appellants regarding the schemes and [*8]
filing of the barratry lawsuits. See id. at 392; WEBSTER'S THIRD NEW INT'L DICTIONARY
1916 (2002) (""relates to"" denotes some sort of ""connection, reference, or relationship"").
Baker Nicholson also proved by a preponderance of the evidence that Pohl's lawsuit was in
response to Baker Nicholson's exercise of its protected rights. Specifically, Pohl waited more
than four years after the alleged conversion, but mere months after the barratry lawsuits, to sue
Baker Nicholson and the other appellants. The nature of the parties' conduct (lawyers suing
lawyers for unethical solicitation practices) and the timing of Pohl's lawsuit is evidence that Pohl
sued Baker Nicholson because of its involvement in contacting former clients and initiating the
barratry lawsuits against Pohl. 2 CR 898-99. This would be evidence of retaliation, if the TCPA
required it, and it certainly is evidence that, more likely than not, Pohl's suit was ""based on,
related to, or in response to"" Baker Nicholson's exercise of protected rights.
II. The commercial-speech exemption does not save Pohl's claims.
The commercial-speech exemption ""applies only to certain communications related to a good,
product, or service in the [*9] marketplace-communications made not as a protected exercise of
free speech[, association, or petitioning activity] by an individual, but as commercial speech
which does no more than propose a commercial transaction."" Castleman v. Internet Money,
Ltd., 546 S.W.3d 684, 690 (Tex. 2018) (per curiam) (citation and emphasis omitted); see TEX.
CIV. PRAC. & REM. CODE § 27.010(b). No such speech is implicated here.
A. Pohl concedes that Baker Nicholson did not sell the client and marketing data.
As set out in Baker Nicholson's opening brief, the Texas Supreme Court delineated the four
elements of the commercial-speech exemption in Castleman. See 546 S.W.3d at 688. The
second element from Castleman requires proof that Baker Nicholson made the statement or
engaged in the conduct on which the theft claims are based in Baker Nicholson's capacity as a
seller or lessor of those goods or services. See id. Pohl concedes in his brief that the sale of
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2019 TX APP. CT. BRIEFS LEXIS 10951, *9
the client and marketing data was between Favre and Kassab, not Baker Nicholson. Appellees'
Br. at 6-5 (claiming Favre sold the information to Kassab via the Favre-Kassab sale agreement
and Baker Nicholson facilitated the sale). That admission alone should foreclose [*10] any
finding that the commercial-speech exemption saves Pohl's claims against Baker Nicholson.
See Toth v. Sears Home Improvement Prods., Inc., 557 S.W.3d 142, 154-55 (Tex. App.-
Houston [14th Dist.] 2018, no pet.) (exception did not apply because record did not include any
indication that defendant contractor was seller of particular product at issue in challenged
communication).
Moreover, the commercial-speech exemption cannot be triggered by the 2017 transaction
because Pohl's theft claims are based on pre-transaction conduct. More specifically, Pohl's
claims are based on the alleged ""raid"" of his office in 2014 when the ""barratry lawyer's team""
stole information and passwords, which alleged conduct occurred before the Favre-Kassab
transaction. 1 CR 646-48, 671 ? 28. Pohl is not suing Baker Nicholson for the services it
provided to the plaintiffs in the barratry suits. Instead, Pohl's lawsuit concerns the possession
and use of the client solicitation and marketing data. 2 CR 900-01. Because the Favre-Kassab
sale agreement occurred after the alleged theft, Pohl's claims do not arise out of any commercial
transaction in which Baker Nicholson acted as a seller. See Castleman, 546 S.W.3d at 688-89;
see also Dickens v. Jason C. Webster, P.C., No. 05-17-00423-CV, 2018 WL 6839568, at *17
(Tex. App.-Dallas, Dec. 31, 2018, no pet.) (commercial-speech exemption [*11] did not apply to
claim alleging attorney tortuously interfered with contingency fee agreement because claim did
""not concern or arise out of [the lawyer's] services."").
B. The Favre-Kassab sale agreement does not involve the sale of the type of services
Baker Nicholson primarily provides to clients.
The third Castleman element is that the statement or conduct at issue must arise out of a
commercial transaction involving the kind of goods or services the defendant provides. See
Castleman 546 S.W.3d at 688. Pohl argues that Baker Nicholson is primarily engaged in the
business of selling legal services to clients, which is true. But then Pohl leaps to the general
conclusion that he has proven the third element because Baker Nicholson assisted Favre with
providing the client and marketing information to Kassab and that information was used to solicit
clients, which is not true. Pohl's conclusion is illogical and conflates the Castleman elements.
Selling client and marketing data to lawyers is not the kind of good or service Baker Nicholson
generally provides in its legal practice. 2 CR 868. In fact, the record establishes the opposite: (1)
Baker Nicholson did not sell any [*12] services or goods to Kassab; (2) Kassab is not Baker
Nicholson's client; (3) Baker Nicholson's services were not sold as part of the Favre-Kassab sale
agreement; and (4) the agreement did not include the sale of the type of legal services that
Baker Nicholson generally provides to its clients. 2 CR 909-915. Accordingly, the third
Castleman element is not satisfied.
C. Pohl did not prove that Baker Nicholson's intended audience was ""actual or potential
customers"" for ""the kind of goods or services"" Baker Nicholson provides.
The fourth Castleman element requires proof that the intended audience of the statement or
conduct be actual or potential customers of the defendant for the kind of goods or services the
Page 6 of 13
2019 TX APP. CT. BRIEFS LEXIS 10951, *12
defendant provides. See 546 S.W.3d at 688. Pohl claims this element is satisfied because ""the
intended audience of Kassab's advertisements and solicitations were potential clients of Kassab
and Nicholson to sue Pohl and, therefore, were indisputably potential clients of Kassab and
Nicholson for the kind of services that Kassab and Nicholson provide-suing lawyers."" Appellees
Br. at 25. This argument fails for several reasons.
First, the intended audience of the statements [*13] or conduct are the parties to the Favre-
Kassab agreement, not the clients that were subsequently represented by Kassab and Baker
Nicholson in the barratry proceedings. 2 CR 869. Second, even if the barratry clients were the
intended audience, Pohl is not suing Baker Nicholson for its representation of those clients in
the barratry lawsuits. Third, Baker Nicholson did not sell or purchase any client or marketing lists
and is not in the business of doing so. On these facts, the commercial-speech exception is
inapplicable to Baker Nicholson. See Schimmel v. McGregor, 438 S.W.3d 847, 858 (Tex. App.-
Houston [1st Dist.] 2014, pet. denied) (holding that statements and conduct by lawyer directed to
third parties did not fall within commercial speech exception because the third parties, who were
""ultimate intended audience for his statements,"" were not lawyer's potential customers).
Pohl's reliance on this Court's recent opinion in North Cypress Medical Center Operating Co.
Group, LLC v. Norvil, No. 01-18-00582-CV, 2019 WL 2292630 (Tex. App.-Houston [1st Dist.]
May 30, 2019, no pet. h.), is misplaced. Norvil was a slip-and-fall case. Id. at *1-2. The
plaintiff, who was uninsured, received treatment at the hospital in exchange for an agreement to
pay all medical costs and an assignment of any proceeds she received from any settlement in a
personal-injury lawsuit. Id. at *2. When a dispute arose over a lien filed by the hospital in the
personal-injury lawsuit, the plaintiff filed a declaratory judgment action seeking determination of
the lien's limits. Id. at *3-4. The hospital filed a TCPA motion to dismiss the declaratory
judgment action, asserting that it was based on the hospital's right to file a lien and, thus, the
exercise of the protected right to petition. Id. at *4-5. The trial court denied the motion, and the
hospital appealed. Id. at *5.
In affirming the denial under the commercial-speech exception, this Court concluded that the
hospital ""was primarily engaged in the business of selling goods or services for the treatment of
sick [*14] and injured people."" Id. at *11. The Court rejected the hospital's contention that the
intended audience of the hospital lien was not an actual or potential buyer or customer, stating a
""lien against the patient's tort recovery is a claim against the patient"" and the plaintiff ""is a
member of the hospital lien's intended audience."" Id. at *12. The Court also rejected the
hospital's contention that the lien was filed for purposes other than securing sales of services,
stating: ""[The hospital] was primarily engaged in the business of providing healthcare services
for which it expected to be paid, and it filed the lien in its capacity as seller of goods and
services related to healthcare."" Id. at *12-13.
This case is distinguishable from Norvil. Here, Pohl is not suing Baker Nicholson for the
solicitation of Pohl's former clients and subsequent filing of lawsuits; Pohl is suing Baker
Nicholson for alleged theft of property and trade secrets that Pohl contends occurred before
this solicitation. 2 CR 890. In other words, while the claims in Norvil arose out of a commercial
transaction involving the kind of services the hospital provides (healthcare services to the
plaintiff), [*15] Pohl's claims against Baker Nicholson arose before the commercial
transactions involving the kind of legal services Baker Nicholson provides. See Castleman, 546
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2019 TX APP. CT. BRIEFS LEXIS 10951, *15
S.W.3d at 688 (observing that commercial-speech exemption only applies if ""the statement or
conduct at issue arose out of a commercial transaction involving the kind of goods or services
the defendant provides""). More importantly, Baker Nicholson is not a contracting party to the
sale agreement and is not a seller of goods.
Unlike in Norvil where the conduct arose from communications to the plaintiff ""who was a
member of the intended audience of the lien,"" Norvil, 2019 WL 2292630, at *13, the conduct in
this case is alleged to have arisen from Baker Nicholson's communications with Kassab and
Favre, who are not the intended audiences of Baker Nicholson's legal services.
III. The burden shifted to Pohl, but he did not establish a prima facie case for the
elements of any claim against Baker Nicholson.
Because Pohl's claims against Baker Nicholson are within the purview of the TCPA and the
commercial-speech exemption does not apply, the burden shifted to Pohl to present clear and
specific evidence of a prima facie case for the essential [*16] elements of conversion,
misappropriation of trade secrets, and civil conspiracy. TEX. CIV. PRAC. & REM. CODE §
27.005(c). This Court has described clear and specific evidence as evidence ""unaided by
presumptions, inferences, or intendments."" Better Bus. Bureau of Metro. Hous., Inc. v. John
Moore Servs., Inc., 441 S.W.3d 345, 355 (Tex. App.-Houston [1st Dist.] 2013, pet. denied). That
is not the type of evidence Pohl offered.
A. Pohl presented no clear and specific evidence of conversion.
Pohl has changed course; he no longer claims he owned the client files or that the actual files
were converted. Appellees' Br. at 30. He now claims the following information was converted: (1)
his clients' identifies; (2) specialized legal forms; and (3) marketing information. See id. Though
Pohl has narrowed the general categories of information he alleges was stolen, he still has not
satisfied his burden of proof because his factual allegations lack detail to avoid TCPA dismissal.
There is no evidence supporting ownership. Pohl's conclusory reference to categories of
property he claims as his, without any detailed factual allegations or evidence establishing the
specific property and ownership, is insufficient to satisfy the minimum requirements of the [*17]
TCPA. See In re Lipsky, 460 S.W.3d 579, 593 (Tex. 2015) (orig. proceeding) (explaining that
""general averments"" are insufficient).
The evidence establishes the opposite. The materials Pohl claims as his own belonged to
Precision, i.e., it was ""solely the work product and property of Precision, developed during the
normal course of its marketing business."" 1 CR 640-42. Favre testified that Precision ""solicited
many of the marketing contacts (individuals and businesses) on these lists for representation."" 1
CR 641. Favre testified that the ""marketing lists"" contained the names of thousands of persons
who eventually became Pohl's former clients and the names of individuals whom Pohl solicited
for representation. 1 CR 641. Notably, Pohl represented to the court in the Mississippi Litigation
that it is ""immaterial who had the right to possess the list or files or for that matter who may be
the owner or creator of the list or files."" 2 CR 826. Pohl was never in possession of this
information and was uninterested in what happened to the information until he learned it would
be used against him, waiting three years to claim it belonged to him. Accordingly, there has
Page 8 of 13
2019 TX APP. CT. BRIEFS LEXIS 10951, *17
been no prima facie showing by clear and specific evidence [*18] of the ownership element of
Pohl's conversion claim.
The same is true for the element of unlawful possession. The record shows that because
Baker Nicholson accessed the information from Precision legally, no unlawful possession has
occurred. And Pohl presents no evidence that Baker Nicholson knew or should have
known Precision allegedly did not have lawful possession of the client and marketing
information.
The Court should note that Pohl presented no evidence that Baker Nicholson took possession
of physical documents; according to Pohl, only Favre did that. Appellee's Br. at 5. This is
important because a tort action for conversion under Texas law is limited to tangible property.
See Robin Singh Educ. Servs., Inc. v. Test Masters Educ. Servs., Inc., 401 S.W.3d 95, 98 (Tex.
App.-Houston [14th Dist.] 2011, no pet.); Express One Intern., Inc. v. Steinbeck, 53 S.W.3d
895, 901 (Tex. App.-Dallas 2001, no pet.) (""Texas law has never recognized a cause of action
for conversion of intangible property except in cases where an underlying intangible right has
been merged into a document and that document has been converted.""); see also Quantlab
Techs. Ltd. (BVI) v. Godlevsky, 719 F. Supp. 2d 766, 778 (S.D. Tex. 2010) (dismissing
conversion claim because the complaint merely alleged the taking of ""electronically-stored
files,""); [*19] WesternGeco v. Ion Geophysical Corp., 2009 WL 3497123, at *3 (S.D. Tex.
2009) (dismissing a conversion claim for confidential information and technology because they
did not merge into a physical prototype). And Pohl also does not contest that the property he
alleges was stolen by Baker Nicholson was exclusively intangible-there is no allegation or
evidence that Baker Nicholson took tangible property. Thus, Baker Nicholson's alleged access
and use of electronic client data cannot support a claim for conversion against Baker Nicholson.
B. Pohl did not present clear and specific evidence of a TUTSA violation.
Likewise, Pohl did not present clear and specific evidence of misappropriation of trade secrets
under TUTSA. The elements of misappropriation are (1) ownership of a trade secret; (2)
misappropriation of the trade secret by a person who knows or has reason to know that the
trade secret was acquired by improper means; and (3) an injury, if the plaintiff is seeking
damages. TEX. CIV. PRAC. & REM. CODE §§ 134A.002(1), (3), (6), 134A.004(a). The party
claiming trade secret status bears the burden of proof of establishing that something is a trade
secret. Stewart & Stevenson Servs. v. Serv-Tech, Inc., 879 S.W.2d 89, 99 (Tex. App.-Houston
[14th Dist.] 1994, writ denied).
As explained [*20] above, Pohl failed to provide clear and specific proof of ownership. And the
client identities, legal forms, and marketing list are not trade secrets under TUTSA. The
existence of a trade secret is determined from details like (1) the extent to which the information
is known by those involved inside or outside Pohl's business, (2) the extent of the measures
Pohl took to guard the secrecy of the information, (3) the value of the information, (4) the
amount of effort or money expended by Pohl in developing the information, and (5) the ease or
difficulty with which the information could be properly acquired or duplicated by others. See In
re Bass, 113 S.W.3d 735, 739 (Tex. 2003) (orig. proceeding). The evidence on these factors is
insufficient to avoid dismissal. 2 CR 890-903, 905-907.
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2019 TX APP. CT. BRIEFS LEXIS 10951, *20
Pohl's Amended Petition merely makes the conclusory allegation that the purportedly stolen
information constitutes ""trade secrets."" 2 CR 895, 899. Such general averments, without more,
do not satisfy the minimum requirements of the TCPA. Lipsky, 460 S.W.3d at 592. Pohl's
conclusory claim to ownership of ""trade secrets"" is ""not probative and accordingly will not suffice
to establish a prima facie case."" See Better Bus. Bureau of Metro. Hous., Inc., 441 S.W.3d
at [*21] 355; compare Morgan v. Clements Fluids S. Tex., Ltd., No. 12-18-00055-CV, 2018
WL 5796994 (Tex. App.-Tyler Nov. 5, 2018, no pet.) (vice-president's affidavit detailing salt
system, company's protocols for maintaining secrecy of its salt systems, and why system was
valuable to competitors is sufficient evidence of trade secret).
In addition, Pohl did not explain the specific ""measures"" he took to maintain the confidentiality
of the electronic information or the duplicate copies. This lack of evidence is particularly
important because Precision, not Pohl, gathered, created, and maintained custody of the
information. Yet Pohl did not articulate any parameters he established to ensure that Precision
did not share the information, such as the amount of money, if any, he invested in keeping this
information confidential.
The evidence Pohl relies on, including Favre's affidavit, is conclusory and provides no details
on the steps Pohl took to protect the information. As noted above, Pohl publicly acknowledged
he did not treat the information as a trade secret, telling the Mississippi judge, ""It is immaterial
who had the right to possess the list or files or for that matter who may be the owner or creator
of the list or files."" 2 CR 826. Simply put, Pohl did [*22] not care what happened to the client
information. His conclusory allegations did not establish a prima facie case that the information
enjoys ""trade secret"" status. See Game Sys. v. Forbes Hutton Leasing, Inc., No. 02-09-00051-
CV, 2011 WL 2119672, at *15 (Tex. App.-Fort Worth, May 26, 2011, no pet.) (statement that
software ""constitutes a trade secret"" was conclusory and not proper evidence).
Pohl also failed to establish that Baker Nicholson ""knew or had reason to know"" that the
purported trade secrets were acquired by improper means. See TEX. CIV. PRAC. & REM.
CODE § 134A.002(3). In the absence of any allegation or evidence from Pohl establishing Baker
Nicholson's knowledge, and the presence of uncontroverted evidence that the information
belonged to Precision, 1 CR 110, Pohl failed to make a prima facie case of misappropriation of
trade secrets against Baker Nicholson.
C. Pohl did not present clear and specific evidence of a civil conspiracy.
Conspiracy is a derivative tort. See Trammel Crow Co. No. 60 v. Harkinson, 944 S.W.2d 631,
635 (Tex. 1997). Because Pohl did not establish a prima facie case for the essential elements of
conversion or misappropriation of trade secrets, Pohl civil conspiracy claim also fails. See
Mem'l Hermann Health Sys. v. Khalil, No. 01-16-00512-CV, 2017 WL 3389645 (Tex. App.-
Houston [1st Dist.] Aug. 8, 2017, pet. denied) (mem. op. on reh'g).
The essential elements of [*23] the conspiracy claim against Baker Nicholson are
unsupported. Pohl's conspiracy claim requires (1) a combination of two or more persons; (2) an
object to be accomplished; (3) a meeting of the minds on the object or course of action; (4) one
or more unlawful or overt acts; and (5) damages as a proximate result. First United Pentecostal
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2019 TX APP. CT. BRIEFS LEXIS 10951, *23
Church of Beaumont v. Parker, 514 S.W.3d 214, 222 (Tex. 2017). Pohl alleges in his Amended
Petition that:
Acting in combination with the agreed object of misappropriating Pohl's trade secrets and
converting Pohl's property, each of the Defendants committed overt acts toward the unlawful
misappropriation of Pohl's trade secrets, which were unlawful and which proximately caused
damages to Pohl.
2 CR 901. This conclusory allegation is insufficient. It provides no detail concerning the alleged
agreement amongst the appellants. It provides no detail regarding the object they sought to
accomplish or the specific overt acts they committed in furtherance of the conspiracy. Neither
does it allege how any of these alleged acts caused him damages. See Dobrott v. Jevin, Inc.,
No. 05-17-01472-CV, 2018 WL 6273411, at *7 (Tex. App.-Dallas Nov. 30, 2018, no pet.)
(holding there was no clear and specific evidence of civil conspiracy where plaintiff's allegations
lacked meaningful [*24] detail); MVS Int'l Corp. v. Int'l Advertising Sols., LLC, 545 S.W.3d 180,
197 (Tex. App.-El Paso 2017, no pet.) (affidavit discussing circumstantial evidence was
insufficient to support conspiracy claim because it was not ""clear and specific"" and did not
""develop with any specificity a timeline of events that would allow a fact finder to draw an
inference of the agreement he alleges.""). In sum, it is not evidence-""unaided by presumptions,
inferences, or intendments""-that allows the conspiracy claim to survive dismissal. Better Bus.
Bureau of Metro. Hous., 441 S.W.3d at 355.
Moreover, ""merely proving a joint intent to engage in the conduct that resulted in the injury is
not sufficient to establish a cause of action for civil conspiracy."" Juhl v. Airington, 936 S.W.2d
640, 644 (Tex. 1996) (internal quotations omitted). ""Instead, civil conspiracy requires specific
intent to agree to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful
means."" Id. And clear and specific evidence of that specific intent cannot be found in this
record. Pohl provides no details or evidence about Baker Nicholson's alleged ""specific intent"" to
agree to accomplish an unlawful purpose. His conclusory, global allegations are insufficient to
make a prima facie showing [*25] of conspiracy. See MVS Int'l Corp., 545 S.W.3d at 197.
IV. Dismissal is required because Pohl cannot overcome Baker Nicholson's affirmative
defenses.
Baker Nicholson established, by a preponderance of the evidence, more than one affirmative
defense that would defeat any prima facie showing by Pohl. See TEX. CIV. PRAC. & REM.
CODE § 27.005(d) (instructing that ""the court shall dismiss a legal action against the moving
party if the moving party establishes by a preponderance of the evidence each essential
element of a valid defense to the nonmovant's claim"").
A. Pohl's claims are barred by the judicial-immunity privilege.
Pohl argues first that immunity does not apply because Baker Nicholson engaged in wrongful
acts. But the privilege is absolute, even when the testimony is false and uttered or published
with express malice. Hurlbut v. Gulf Atl. Life Ins. Co., 749 S.W.2d 762, 768 (Tex. 1987);
Perdue, Brackett, Flores, Utt & Burns v. Linebarger, Goggan, Blair, Sampson & Meeks, LLP.,
291 S.W3d 448, 455 (Tex. App.-Fort Worth 2009, no pet.); see Regan v. Guardian Life Ins.Co.,
Page 11 of 13
2019 TX APP. CT. BRIEFS LEXIS 10951, *25
166 S.W.2d 909, 912 (Tex. 1942) (forged affidavit); McIntyre v. Wilson, 50 S.W.3d 674, 683
(Tex. App.-Dallas 2001, pet. denied) (false testimony). Therefore, judicial immunity applies
regardless of the nature of Baker Nicholson's actions.
In addition, Pohl urges the [*26] Court not to apply judicial immunity because Baker
Nicholson's communications preceded the commencement of a judicial proceeding. For judicial
immunity to apply, however, the conduct need only ""bear some relationship"" to the litigation.
See Daystar Residential, Inc. v. Collmer, 176 S.W.3d 24, 29 (Tex. App.-Houston [1st Dist.]
2004, pet. denied). The privilege protects conduct carried out ""in contemplation of and
preliminary to judicial proceedings."" Watson v. Kaminski, 51 S.W.3d 825, 827 (Tex. App.-
Houston [1st Dist.] 2001, no pet.) (emphasis added). The conduct need only ""relate to pending
or proposed litigation and must further the attorney's representation."" Id. (emphasis
added). Therefore, Pohl's contention that judicial immunity does not apply to Baker Nicholson's
pre-litigation conduct fails. See Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 485 (Tex. 2015)
(attorney was immune from conduct that occurred after litigation had ended because it was
related to the representation).
B. Pohl's claims are time-barred.
Pohl realizes that his claims accrued in 2014 (or, at the latest, in 2015), so he is changing his
story. The following evidence was developed from Pohl:
. Pohl alleged the conversion occurred ""at a time as yet unknown but believed to have been
no later than the summer of 2013."" 3 S. CR 195-96.
. Pohl testified in another proceeding that in 2014, the ""barratry lawyer's team"" (allegedly
consisting of Baker Nicholson, Kassab, and Montague) broke [*27] into Pohl's office in
Gulfport Mississippi and stole the information and passwords. 1 CR 646-48.
. Pohl testified that the computers containing the purported trade secrets and client files
were stolen from his office and he closed that office in February 2014. 1 CR 671, P 28.
. In May 2015, Pohl sent Precision a letter, asking that Precision return the original and
copies of fee contracts with his BP clients. 3 S. CR 152.
According to his own testimony then, Pohl knew of the alleged theft sometime between
""summer of 2013"" and May 2015. Yet Pohl did not file suit for more than three years, making his
claims against Baker Nicholson untimely as a matter of law. See TEX. CIV. PRAC. & REM.
CODE § 16.003(a) (establishing two-year limitations period for conversion); Id. § 16.010(a)
(establishing three-year limitations period for misappropriation); see also Mayes v. Stewart,
316 S.W.3d 715, 719 (Tex. App.-Houston [14th Dist.] 2010, no pet.) (holding that conspiracy
claim was governed by limitations period for underlying tort).
The Court should reject Pohl's argument that his claims against Baker Nicholson are timely
because they ""are based on the purchase as well as the actions taken subsequent to that
purchase in contacting and soliciting Pohl's clients."" Appellee's Br. at 36. But the subsequent
sale of the data did not extend the limitations period or create a new cause of action for
misappropriation [*28] of trade secrets. By statute, a ""misappropriation of trade secrets that
Page 12 of 13
2019 TX APP. CT. BRIEFS LEXIS 10951, *28
continues over time is a single cause of action and the limitations period described in [section
16.010(a) of the Civil Practice and Remedies Code] begins running without regard to whether
the misappropriation is a single or continuing act."" TEX. CIV. PRAC. & REM. CODE § 16.010(b).
Thus, Pohl's misappropriation claim accrued when he knew or should have known of the
unlawful misappropriation of the trade secret, at the latest in May 2015, regardless of any
subsequent disclosure or sale of alleged trade secrets. See Tavana v. GTE Sw., Inc., No. 05-
97-00664-CV, 1999 WL 512624 (Tex. App.-Dallas July 21, 1999, pet. denied); see also Garth
v. Staktek Corp., 876 S.W.2d 545, 548 (Tex. App.-Austin 1994, writ dism'd w.o.j.). Likewise,
Pohl's conversion claim-for which the limitations period is even shorter-accrued at the time of the
unlawful taking. Burns v. Rochon, 190 S.W.3d 263, 271 (Tex. App.-Houston [1st Dist.] 2006, no
pet.). Because the underlying tort claims for misappropriation and conversion are untimely, so to
is Pohl's civil conspiracy claim. See Mayes, 316 S.W.3d at 719.
Again, Pohl's own testimony is telling on limitations. He revealed that, though he knew in 2014
that the alleged theft upon which his claims rest had occurred, he did not pursue a civil or
criminal remedy because he ""wanted to spend time to [*29] reflect on it before taking action
[and] didn't want to do anything that was precipitous."" 1 CR 650-654. When asked why he did
not report the alleged theft to any authority or take other action, Pohl stated he had been
""preoccupied"" and simply ""neglected to do that."" 1 CR 654.
CONCLUSION AND PRAYER
For all the reasons stated herein and in its opening brief, Baker Nicholson asks this Court to (1)
reverse the denial of its motion to dismiss and (2) remand with instructions for the trial court to
order the dismissal of Pohl's claims against Baker Nicholson and (3) determine the reasonable
attorney's fees, costs, expenses, and sanctions to which Baker Nicholson is statutorily entitled.
See TEX. CIV. PRAC. & REM. CODE § 27.009(a); Schimmel, 438 S.W.3d at 863. Baker
Nicholson further requests all such other relief to which it is entitled.
Respectfully submitted,
/s/ Jessica Z. Barger
Jessica Z. Barger
State Bar No. 24032706
barger@wrightclosebarger.com
E. Marie Jamison
State Bar No. 24044647
jamison@wrightclosebarger.com
WRIGHT CLOSE & BARGER, LLP
One Riverway, Suite 2200
Houston, Texas 77056
(713) 572-4321
(713) 572-4320 (facsimile)
Chris [*30] C. Pappas
Page 13 of 13
2019 TX APP. CT. BRIEFS LEXIS 10951, *30
State Bar No. 15454300
cpappas@krcl.com
Andrew J. Sarne
asarne@krcl.com
State Bar No. 00797380
Kimberly C. Clark
State Bar No. 24066435
kclark@krcl.com
KANE RUSSELL COLEMAN LOGAN PC
5051 Westheimer Road, Suite 1000
Houston, Texas 77056
(713) 425-7400
(713) 425-7700 (facsimile)
Counsel for Appellants Tina Nicholson and Baker Nicholson, LLP d/b/a Baker
Nicholson Law Firm
CERTIFICATE OF COMPLIANCE
I hereby certify that this document was generated by a computer using Microsoft Word which
indicates that the total word count of this document 5,971 and that it is in compliance with TEX.
R. APP. P. 9.4(i)(D)
/s/ Jessica Z. Barger
Jessica Z. Barger
CERTIFICATE OF SERVICE
I certify that on June 28, 2019, a true and correct copy of the foregoing instrument was served
on all counsel of record consistent with TEX. R. CIV. P. 21a.
/s/ Jessica Z. Barger
Jessica Z. Barger
End of Document"
11,2019-06-21,2019-06-21 RPL Kassab-Reply-Brief-TCPA FILED,appellate,2019-06-21_RPL_Kassab-Reply-Brief-TCPA_FILED.pdf,"KASSAB v. POHL
01-18-01143-CV
COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON
June 21, 2019
Reporter
2019 TX APP. CT. BRIEFS LEXIS 10958 *
LANCE CHRISTOPHER KASSAB AND LANCE CHRISTOPHER KASSAB, PC D/B/A THE
KASSAB LAWFIRM, ET AL., Appellants V. MICHAEL POHL AND LAWOFFICE OFMICHAEL A.
POHL, PLLC, Appellees
Type: Brief
Prior History: On Appeal from the 189th Judicial District Court of Harris County, Texas. Trial
Court Cause No. 2018-58419.
Counsel
ALEXANDER DUBOSE & JEFFERSON LLP, Kevin Dubose, Texas State Bar No. 06150500,
Houston, Texas, THE KASSAB LAW FIRM, Lance Christopher Kassab, Texas State Bar No.
00794070, David Eric Kassab, Texas State Bar No. 24071351, Houston, Texas.
Title
REPLY BRIEF OF THE KASSAB APPELLANTS
Text
[*1] REPLY TO FACTUAL BACKGROUND
Pohl 1 contends that: (1) Kassab 2 has ""fail[ed] to inform the Court that the 'facts' [he] recite[s]
are not facts but are instead repudiated assertions"" by a witness named Magdalena Santana
(""Santana""); and (2) Kassab's reference to grievance proceedings is ""in total disregard of the
State Bar's admonition that grievances are 'strictly confidential.'"" Br. Appellees at 11. Both
contentions are without merit and require a brief response.
Pohl argues that Santana's affidavit was ""reputed"" and ""withdrawn"" by her and is ""not reliable.""
Id. at p. 3. Pohl cites to a second affidavit by Santana in which she claims she was ""offered
compensation to sign"" the initial affidavit. Id. at p. 10. Ironically, Pohl himself paid Santana
more than $ 50,000 to sign a statement for him agreeing not to charge him with any wrongdoing
or report him to the State Bar of Texas. 1CR254-260. Regardless, Santana's second affidavit
does not state that the testimony in her first affidavit is untrue, only that it is unreliable. 1CR277.
1 Appellees Michael Pohl and Law Office of Michael A. Pohl, PLLC.
2 Appellants Lance Christopher Kassab and Lance Christopher Kassab, PC d/b/a The Kassab Law Firm.
Page 2 of 14
2019 TX APP. CT. BRIEFS LEXIS 10958, *1
Moreover, Santana did not withdraw her deposition testimony, see 1CR277, which is cited at
length in Kassab's brief to establish that the ""client liaison"" services Pohl says he hired Precision
3 to conduct were nothing but a thinly veiled cover-up for barratry. 1CR249-252. Santana's
deposition confirms many of the things she stated in her first affidavit, and reveals why she
refused to state that her first affidavit is untrue. 1CR248-264
The Texas Disciplinary Rules of Procedure regarding the confidentiality of grievance
proceedings provide that only the "" members and staff of the Office of Chief Disciplinary
Counsel, Board of Disciplinary Appeals, Committees, and Commission shall maintain as
confidential all Disciplinary Proceedings and associated record..."" TEX. R. DISC. P. 2.16
(emphasis added). The rule does not prohibit complainants from disclosing [*2] the facts or
subject matter of the grievances. See id. In fact, a previous, broader version of this rule was
amended in 2009 to limit this restriction to members and staff. See id. at Cmt. (noting that the
rule was amended to exclude: ""Disciplinary Proceedings are strictly confidential and not subject
to disclosure, except by court order or as otherwise provided in this Rule 2.16.""). Pohl has been
less than candid with the Court, not Kassab.
ARGUMENT IN REPLY
A. Kassab carried his burden to show the TCPA applied.
Pohl contends that Kassab failed to sustain his evidentiary burden to show that the TCPA 4
applied to Pohl's claims against him. Br. Appellees at 18. But, as recognized by Pohl, his own
pleadings may constitute the ""best and all-sufficient evidence of the nature of the action."" Id. at
17 (quoting Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017)). For each cause of action,
Kassab cited Pohl's own pleadings, often bolstered by additional uncontested evidence, to
demonstrate that each cause is subject to the TCPA because it is based on, related to, or in
response to a protected right. Br. Kassab Appellants at 17-23.
Kassab also cited cases from this Court and other courts of appeals to support to his argument
that the TCPA applies. See id. Pohl makes no effort to distinguish these cases, nor does he
cite any contrary authority. See generally Br. Appellee at 20-22. Instead, Pohl simply
argues [*3] that his claims are ""not facially subject to a TCPA challenge."" Id. at 17. In contrast
to Pohl's lack of authority, Kassab satisfied his burden. See Hersh, 526 S.W.3d at 467 (""When
it is clear from the plaintiff's pleadings that the action is covered by the [TCPA], the defendant
need show no more."").
Pohl argues that Kassab failed to demonstrate that Pohl's claims were retaliatory. Br.
Appellees at18, 20-22. Pohl also argues that Kassab waived his complaint on appeal because
he ""failed to argue in the trial court that the claims fall within the TCPA even though they are not
retaliatory..."" Id. at 21-22. Both arguments fail.
3 Appellant Precision Marketing Group, LLC.
4 Texas Citizens Participation Act, Chapter 27 of the Texas Civil Practice & Remedies Code.
Page 3 of 14
2019 TX APP. CT. BRIEFS LEXIS 10958, *3
First, ""[r]etaliation is not a requirement the statute imposes."" Arey v. Shipman Agency, Inc.,
No. 10-18-00100-CV, 2019 Tex. App. LEXIS 3513, at *5 n.1 (Tex. App. - Waco, May 1, 2019, no
pet.) (rejecting non-movant's argument that movant ""did not prove retaliation"" because it
""constitutes an improper effort to narrow the scope of the TCPA by reading language into the
statute that is not there""); see also Youngkin v. Hines, 546 S.W.3d 675, 681 (Tex. 2018)
(injecting requirement that the TCPA only applies to constitutionally guaranteed activities is
disloyal to the statute's text).The statute only requires a demonstration that the action is based
on, relates to, or is in response to a party's exercise of a protected right. See TEX. CIV. PRAC.
& REM. CODE § 27.003(a). Therefore, Pohl's argument that Kassab was required to prove
retaliation in order to establish that Pohl's claims fall within the TCPA is without merit. [*4] See
Arey, 2019 Tex. App. LEXIS 3513, at *5 n.1
Second, even if retaliation were a required element, it was not waived. Kassab argued multiple
times in the trial court that Pohl's lawsuit was in retaliation of Kassab's exercise of protected
rights. See 1CR89 (""In direct retaliation to the Barratry Lawsuits and the grievance
proceedings, Pohl filed this litigation alleging that Kassab and others stole his property and are
using it to bring lawsuits and grievances against him.""); 1CR93 (""Pohl has filed this retaliatory
lawsuit against Kassab for conversion and theft of trade secrets""); 1CR95 (""This is a retaliatory
lawsuit designed to chill the rights of Kassab and his clients and silence them from speaking out
against Pohl and other lawyers in legal malpractice cases.""); Id. (""This is the very type of
retaliatory lawsuit the TCPA was intended to protect against.""); 3CR124 (""Because of these
actions in representing clients against Pohl and the grievances filed against Pohl, Pohl has filed
a retaliatory lawsuit against the Kassab alleging conversion and theft of trade secrets."").
Finally, though not required, retaliation was proved. Kassab established through uncontested
evidence that he associated with Favre, [*5] 5 Precision and Nicholson 6 to expose Pohl's illegal
and unethical barratry. 1CR109-110. Kassab filed barratry lawsuits and grievances against Pohl
communicating matters of public concern. 1CR110, 379-576, 578-638. In response to these
protected activities, Pohl sued Kassab alleging Kassab and others ""entered into a combination""
to misappropriate his trade secrets and convert the marketing lists and attorney-client contracts
that Precision obtained. 2CR899. Pohl alleged Favre and Precision, with Nicholson's assistance,
converted this property and provided it to Kassab in order to convince Pohl's former clients ""to
bring cases against Pohl for alleged barratry and other claims."" 2CR898. Given the timing of the
lawsuit and the evidence presented by Kassab, the trial court correctly recognized that Pohl's
suit was ""retaliatory on its face."" 1RR16.
B. The commercial speech exception does not apply.
Pohl argues that the commercial speech exception applies because all four elements of the
Castleman 7 test are satisfied. Element (1) is not [*6] in dispute, so only elements (2), (3) and
(4) will be addressed.
5 Appellant Scott Favre and Scott M. Favre Public Adjuster, LLC.
6 Appellant Tina Nicholson and Baker Nicholson, LLP.
7 Castleman v. Internet Money Ltd., 546 S.W.3d 684 (Tex. 2018).
Page 4 of 14
2019 TX APP. CT. BRIEFS LEXIS 10958, *6
Element (2) requires that the defendant made the statement or engaged in the conduct on
which the claim is based in the defendant's capacity as a seller or lessor of those goods or
services. Castleman, 546 S.W.3d at 688. Pohl argues this element is satisfied because his
TUTSA 8 claim alleges Kassab misappropriated trade secrets through ""disclosure or use"" of
them ""in violation of the statute."" Br. Appellees at 24. But the commercial speech exemption is
not triggered by conduct concerning the sale of any services. Instead, ""the sale or lease of
goods or services must refer to the defendant's sale or lease of goods or services.""
Castleman, 546 S.W.3d at 688-89 (emphasis in original). Because the solicitation and filing of
suit occurred after the alleged theft and conversion, Pohl's claims do not arise out of any
commercial transaction involving Kassab's usual business or sale of his services. See id.
Element (3) requires that the statement or conduct at issue arise out of a commercial
transaction involving the kind of goods or services the defendant provides. Castleman, [*7]
546 S.W.3d at 688. Pohl argues this element is satisfied because Kassab's ""advertisements and
solicitations of Pohl's clients and prospective clients arose out of a commercial transaction -
Kassab and Nicholson's coordinated effort to obtain clients to sue Pohl for profit - involving the
kind of services that Kassab and Nicholson provide."" Br. Appellees at 25. But Pohl is not suing
Kassab for sending out advertisements or solicitations; he is suing Kassab for alleged
conversion and theft of trade secrets. 2CR900-901. Therefore, the complained of conduct
occurred before (and did not ""arise out of"") any commercial transaction involving the kind of
services that Kassab provides. See Dickens v. Jason C. Webster, P.C., No. 05-17-00423-CV,
2018 Tex. App. LEXIS 10893, at *17 (Tex. App. - Dallas, Dec. 31, 2018, no pet. h.) (commercial
speech exception did not apply to claim alleging attorney tortuously interfered with contingency
fee agreement because claim did ""not concern or arise out of [the lawyer's] services."").
Element (4) requires that the intended audience of the statement or conduct be actual or
potential customers of the defendant for the kind of goods or services the defendant provides.
Castleman, 546 S.W.3d at 688. Pohl argues that this element is satisfied because ""the [*8]
intended audience of Kassab's advertisements and solicitations were potential clients of Kassab
and Nicholson to sue Pohl and, therefore, were indisputably potential clients of Kassab and
Nicholson for the kind of services that Kassab and Nicholson provide - suing lawyers."" Br.
Appellees at 25. But the ""audience"" of the alleged conduct was Favre and Precision, who Pohl
alleges Kassab purchased his confidential information and trade secrets from. 2CR869. The
exemption does not apply, and a seller of goods or services may avail himself of the TCPA,
""when he speaks of other goods or services in the marketplace."" Castleman, 546 S.W.3d at
689 (emphasis added). Kassab is not in the business of purchasing marketing lists, and Favre
and Precision are not Kassab's usual clients, nor are they seeking legal services from Kassab.
Therefore, the commercial speech exception is inapplicable. See Schimmel v. McGregor, 438
S.W.3d 847, 858 (Tex. App.-Houston [1st Dist.] 2014, pet. denied) (statements and conduct by
lawyer directed to third parties did not fall within commercial speech exception because the third
parties, who were the ""ultimate intended audience for his statements"" were not lawyer's potential
customers).
8 Texas Uniform Trade Secrets Act.
Page 5 of 14
2019 TX APP. CT. BRIEFS LEXIS 10958, *8
Pohl cites three cases for his proposition [*9] that his claims against Kassab fall within the
commercial speech exception. Br. Appellees at 25-26. Two of these cases were cited by Pohl in
the trial court and already have been distinguished by Kassab. See Br. Kassab Appellants at
27-30 (distinguishing Miller Weisbrod, L.L.P. v. Llamas-Soforo, 511 S.W.3d 181 (Tex. App. - El
Paso 2014, no pet.) and NCDR, L.L.C. v. Mauze & Bagby, PLLC, 745 F.3d 742 (5th Cir.
2014)). Pohl fails to rebut Kassab's arguments distinguishing those case.
Pohl cites an additional case for the proposition that Kassab's actions were allegedly ""primarily
to advance [his] commercial interests in obtaining new clients."" Br. Appellees at 26 (citing N.
Cypress Med. Ctr. Operating Co. Grp., LLC v. Norvil, No. 01-18-00582-CV, 2019 Tex. App.
LEXIS 4447 (Tex. App. -Houston [1st Dist.] May 30, 2019, no pet. h.) (mem. op.)). Pohl's
reliance on Norvil is misplaced.
In Norvil, the plaintiff was injured in a slip-and-fall and transported to a hospital for care. Id.
at *1-2. The hospital treated the plaintiff, who had no insurance, in exchange for an agreement
to pay all medical costs and an assignment of any proceeds she received from any settlement.
Id. at *2. When a dispute arose over a lien filed by the hospital in the litigation, the plaintiff filed a
declaratory judgment action seeking determination of the limits of the lien. Id. at *3-4. The
hospital filed a TCPA motion to dismiss the declaratory judgment action, arguing it was based
on its right to file a lien and therefore its right to petition. Id. at *4-5. The trial court denied the
motion and the hospital appealed. Id. at *5.
In affirming the denial in the context of the commercial speech exception, this Court concluded
that the hospital ""was primarily engaged in the business of selling goods or services for [*10]
the treatment of sick and injured people."" Id. at *11. This Court rejected the hospital's
contention that the intended audience of the hospital lien was not an actual or potential buyer or
customer, stating a ""lien against the patient's tort recovery is a claim against the patient"" and the
plaintiff ""is a member of the hospital lien's intended audience."" Id. at *12. The Court also
rejected the hospital's contention that the lien was filed for purposes other than for securing
sales of services, stating: ""[the hospital] was primarily engaged in the business of providing
healthcare services for which it expected to be paid, and it filed the lien in its capacity as seller
of goods and services related to healthcare."" Id. at *12-13.
This case is distinguishable from Norvil. Here, Pohl is not suing Kassab for the solicitation of
his former clients and subsequent filing of lawsuits; Pohl is suing Kassab for alleged theft of
property and trade secrets that he contends occurred prior to this solicitation. 2CR890. In
other words, while the claims in Norvil arose out of a commercial transaction involving the kind
of services the hospital provides (healthcare services to the plaintiff), Pohl's claims against
Kassab arose before the commercial transactions involving the kind of legal services Kassab
provides (accumulation of clients to file barratry suits against Pohl). See Castleman, 546
S.W.3d at 688 (commercial exception only applies if ""the statement or conduct at issue arose
out of a commercial transaction involving the kind of goods or services the defendant provides"")
(emphasis added).
Accordingly, unlike in Norvil where the conduct arose from communications to the plaintiff
""who was a member of the intended audience of the lien,"" Norvil, 2019 Tex. App. LEXIS 4447,
at *13, the conduct in this case is alleged to have arisen from Kassab's communications and
Page 6 of 14
2019 TX APP. CT. BRIEFS LEXIS 10958, *10
purported transactions [*11] with Favre, Precision and Nicholson, who are not intended
audiences of Kassab's legal services. 2CR897-898.
Because Pohl failed to meet his burden to show that the commercial speech exception applied
to his claims against Kassab, the claims should have been dismissed
C. Pohl did not establish a prima facie case against Kassab by clear and specific
evidence.
Because Pohl's claims against Kassab fell within the purview of the TCPA, Pohl was required
to establish each essential element of the claims in question ""by clear and specific evidence.""
TEX. CIV. PRAC. & REM. CODE § 27.005(c). A prima facie case ""is the minimum quantum of
evidence necessary to support a rational inference that the allegation of fact is true."" In re
Lipsky, 460 S.W.3d 579, 590 (Tex. 2015). The TCPA limits the type of evidence from which a
prima facie case may be made to evidence that is ""clear and specific"": ""clear"" meaning
""unambiguous,"" ""sure or free from doubt;"" ""specific"" meaning ""'explicit' or ""referring to a
particular named thing.'"" Id. ""Collectively, these elements require that a party provide enough
detail to show the factual basis for its claim, and thus effectively abrogate the utility of mere
notice pleading as 'evidence' [*12] to that end."" Cavin v. Abbott, 545 S.W.3d 47, 72 (Tex.
App.-Austin 2017, pet. denied). Even if the trial court considered Pohl's pleadings as ""evidence,""
these pleadings were mere notice pleadings that failed to establish a prima facie case against
Kassab by clear and specific evidence.
1. The conversion claim fails.
Pohl cites paragraph 20 of his Amended Petition to support the elements of his conversion
claim. Br. Appellees at 30. However, this paragraph does not even mention Kassab. 2CR895.
Instead, it merely recites, in conclusory fashion, property that Pohl claims was his, including
attorney-client fee agreements, communications with clients, and unidentified ""compilations"" and
""proprietary marketing information."" Id. Pohl's conclusory reference to property he claims was
his, without any factual details establishing ownership or damages or Kassab's conversion, is
insufficient to satisfy the minimum requirements of the TCPA. See In re Lipsky, 460 S.W.3d at
593 (explaining that ""general averments"" are insufficient); Grant v. Pivot Tech. Sols., Inc., 556
S.W.3d 865, 883 (Tex. App.-Austin 2018, pet. filed) (prima facie case not established when
plaintiff did ""not describe any factual basis for determining the value of the allegedly taken
property or for calculating the loss of [*13] its use."").
Pohl also failed to allege, let alone provide prima facie evidence to demonstrate that he
demanded that Kassab return the allegedly stolen property. Pohl argues: ""[t]o the extent, if any,
that Texas law requires demand for the return of the materials as an element of the tort of
conversion, Pohl provided proof that such a demand was made."" Br. Appellees at 31. First, Pohl
was required to present prima facie evidence that he made a demand that the property be
returned. See Tex. Civ. Prac. & Rem. Code § 27.005(c). Texas law is clear that demand is a
necessary element of conversion. See Stroud Prod., L.L.C. v. Hosford, 405 S.W.3d 794, 811
(Tex. App.-Houston [1st Dist.] 2013, pet. denied) (""The elements of a conversion claim are ... the
plaintiff demanded return of the property"" and ""the defendant refused to return the property."").
Page 7 of 14
2019 TX APP. CT. BRIEFS LEXIS 10958, *13
Second, Pohl did not allege or prove that he demanded return of the purportedly stolen
property from Kassab. 2CR890-903. Pohl's defective declaration did not even say that he
requested that Kassab return the purportedly stolen property. 2CR905-907. The only ""proof"" that
Pohl says he provided to the trial court is a letter to Nicholson, as an attorney for Precision, not
Kassab. 2CR1035-36. Moreover, this [*14] ""proof"" is attached as Exhibit 6 to the affidavit of
Billy Shepherd, to which Kassab asserted objections that should have been sustained. Br.
Kassab Appellants at 31-39. Pohl cannot cite evidence to which Kassab objected, while at the
same time arguing the ""objections are not relevant to the issues on appeal."" Br. Appellees at 35.
Pohl made no effort to respond to these objections, either in the trial court or on appeal, and the
objections should have been sustained. Without an allegation or evidence of demand, Pohl's
conversion claim against Kassab fails as a matter of law, and should have been dismissed.
See Automek, Inc. v. Orandy, 105 S.W.3d 60, 63 (Tex. App.-Houston [1st Dist.] 2003, no pet.)
(affirming summary judgment on conversion claim when there was no proof in the record that
plaintiff demanded return of the property).
2. The theft of trade secrets claim fails.
""The elements of misappropriation of trade secrets are (1) ownership of a trade secret; (2)
misappropriation of the trade secret; and (3) an injury, if the plaintiff is seeking damages.""
Morgan v. Clements Fluids S. Tex., Ltd., No. 12-18 00055-CV, 2018 Tex. App. LEXIS 9061, at
*3 (Tex. App.-Tyler Nov. 5, 2018, no pet.) (citing TEX. CIV. PRAC. & REM. CODE §§
134A.002(1), (3), (6), 134A.004(a)). Even if Pohl's pleadings are considered evidence, [*15]
Pohl failed to make a prima facie case for each of these elements.
First, Pohl did not establish ownership of any trade secret. The party claiming trade secret
status bears the burden of proof of establishing that something is a trade secret. Stewart &
Stevenson Servs. v. Serv-Tech, Inc., 879 S.W.2d 89, 99 (Tex. App. - Houston [14th Dist.] 1994,
writ denied). To meet this burden, Pohl was required to provide details concerning (1) the extent
to which the information is known by those involved inside or outside his business, (2) the extent
of the measures taken by Pohl to guard the secrecy of the information, (3) the value of the
information, (4) the amount of effort or money expended by Pohl in developing the information,
or (5) the ease or difficulty with which the information could be properly acquired or duplicated
by others. See In re Bass, 113 S.W.3d 735, 739 (Tex. 2003).
Pohl's Amended Petition fails to meet this burden, and merely makes the conclusory allegation
that the purportedly stolen information constitutes ""trade secrets."" 2CR895, 899. ""General
averments . . . without more, do not satisfy the minimum requirements of the TCPA."" Lipsky,
460 S.W.3d at 592. Pohl's conclusory claim to ownership of ""trade secrets"" is ""not probative and
accordingly will not suffice [*16] to establish a prima facie case."" See Better Bus. Bureau of
Metro. Hous., Inc. v. John Moore Servs., Inc., 441 S.W.3d 345, 355 (Tex. App.-Houston [1st
Dist.] 2013, pet. denied).
A recent Texas case demonstrates what Pohl could have done to satisfy his burden. See
Morgan v. Clements Fluids S. Tex., Ltd., No. 12-18-00055-CV, 2018 Tex. App. LEXIS 9061
(Tex. App.-Tyler Nov. 5, 2018, no pet.). There, an employer sued former employees for
misappropriation of trade secrets relating to a salt system used in oil wells. Id. at *1-2. The
employees filed motions to dismiss under the TCPA, which were denied. Id. The employer
Page 8 of 14
2019 TX APP. CT. BRIEFS LEXIS 10958, *16
relied on an affidavit from its vice president discussing details of the salt system, the company's
protocols for maintaining the secrecy of its salt systems, and why the system was valuable to
competitors. Id. at *13-15. Based on this detailed affidavit, the court of appeals concluded the
employer established by clear and specific evidence that it owned a trade secret. Id. at *15.
In contrast, Pohl submitted no evidence or allegation similar to the proof in Morgan to
establish the factors necessary to determine whether the information allegedly misappropriated
was a trade secret. 2CR890-903, 905-907.
Pohl argues that he provided ""substantial evidence"" supporting this element through the Favre
affidavit. Br. Appellees at 33-34 (""Favre himself averred to [the information's] confidentiality and
value, stating that they are one of his 'most valuable assets' that would lose all value if they
became 'public knowledge.'"") However, that affidavit was Exhibit 7 to Shepherd's affidavit, to
which Kassab made a valid objection that should have been sustained. Br. Kassab Appellants at
31-39. But even if this affidavit is considered, Favre is merely discussing ""marketing lists"" and
not [*17] any of the information identified by Pohl in his pleadings. 2CR1049 (""Precision has
always protected and treated its marketing lists as confidential and proprietary.""). The fact that
Favre believed Precision's marketing lists were trade secrets and valuable to Precision does not
prove that Pohl's purportedly stolen information was a trade secret and valuable to Pohl.
Moreover, Pohl failed to establish that Kassab ""knew or had reason to know"" that the purported
trade secrets were acquired by improper means. See TEX. CIV. PRAC. & REM. CODE §
134A.002(3). Pohl does not even allege that Kassab knew the information was acquired by
improper means; only that Kassab ""knowingly purchased"" information. 2CR898. Pohl merely
alleges in conclusory fashion that Kassab ""willfully and maliciously misappropriated Pohl's trade
secrets by using them without the express or implied consent of Pohl."" 2CR901. This may prove
that Pohl did not consent to Kassab using the lists, but does not prove that Kassab knew the
lists had been misappropriated. Again, Pohl's conclusory allegations are insufficient to establish
a prima facie case of knowledge. See Better Bus. Bureau of Metro. Hous., 441 S.W.3d at [*18]
355.
Recognizing no prima facie case was established by his pleadings, Pohl directs the Court to an
agreement between Kassab and Favre to allegedly ""purchase the trade secrets"" which obligated
Kassab ""to indemnify Favre from claims that Pohl might bring."" Br. Appellees at 34. Pohl argues
that ""this detail makes clear that at the time of the agreement everyone understood that Pohl
might assert a claim because Favre did not own the materials."" Id. However, this document is
nothing more than an agreement for Favre, a licensed insurance adjuster experienced in the BP
litigation, to serve as an expert and evaluate and consult with Kassab on hundreds of barratry
cases to determine whether the solicited clients had legitimate underlying claims against BP.
2CR909. In exchange, Kassab agreed to pay Favre a $ 100 fee for receiving and setting up a
file at his office, plus any hourly fees he incurred, to be credited against a nonrefundable
retainer. Id. Favre certified in this agreement that he was not aware of anything that prohibited
him from disclosing client information. 2CR911. Favre also claimed ownership over the
marketing lists and materials Precision acquired while soliciting [*19] clients for Pohl. 1CR641.
Based on Favre's certification and claim of ownership over the materials, Kassab agreed to
indemnify Favre for any costs he incurred defending claims relating to disclosure of client
Page 9 of 14
2019 TX APP. CT. BRIEFS LEXIS 10958, *19
information, because there could not be any legitimate claims. 2CR911. This agreement does
not establish that Kassab knew the information was stolen; it establishes the opposite.
In the absence of any allegation or evidence from Pohl establishing Kassab's knowledge, and
the presence of Kassab's uncontroverted evidence that the information he obtained belonged to
Precision, 1CR110, Pohl failed to make a prima facie case of the knowledge element of his theft
of trade secrets claim.
Finally, Pohl presented no evidence of damages, which is a required element of a theft of trade
secrets claim. See TEX. CIV. PRAC. & REM. CODE § 134A.004(a). Pohl makes no allegation
of an alleged injury as a result of the purported theft of trade secrets. 2CR890-903. Pohl alleges
only that he ""suffered damages as a proximate result of Defendants' conduct"" but offers no
explanation or proof of what these damages are. 2CR891. Pohl's theft of trade secret claim
against Kassab does not mention damages [*20] at all. 2CR900-901. Likewise, in his
conclusory declaration, Pohl states that he has ""incurred damages as a result of the conversion
of my property"" but fails to detail what those damages are. 2CR906. Pohl merely declares that
he has suffered the ""loss of the value of [his] confidential materials and unjust enrichment to
Kassab ... as a result of [the] wrongful misappropriation."" 2CR907.
Regarding TCPA damages, the Texas Supreme Court has made clear that ""general averments
of direct economic losses and lost profits, without more, [do not] satisfy the minimum
requirements of the TCPA. "" Lipsky, 460 S.W.3d at 593. The statements in Pohl's pleadings
and declaration are self-serving and conclusory; they are ""completely devoid of details to
support his factual inference or show the factual basis for his claims."" See David Martin Camp
& Bargains for Millionaires LLC v. Patterson, No. 03-16-00733-CV, 2017 Tex. App. LEXIS 7258,
2017 WL 3378904, at *23 (Tex. App.-Austin Aug. 3, 2017, no pet.) (mem. op.). Although Pohl
claims to have been damaged, he does not clearly and specifically demonstrate what damages
he suffered; therefore, he has failed to present a prima facie case of damages. See Lipsky, 460
S.W.3d at 593 (affidavit stating that plaintiff suffered ""direct pecuniary and economic
losses [*21] and costs, lost profits, loss of its reputation, and loss of goodwill in the communities
in which it operates . . . in excess of three million dollars"" was ""devoid of any specific facts
illustrating how defendant's alleged remarks caused such losses""); Bedford v. Spassoff, 520
S.W.3d 901, 904-905 (Tex. 2017) (concluding that neither petition nor affidavit identified any
actual damages). 9
3. The conspiracy claim fails.
9 See also McDonald Oilfield Operations, LLC v. 3B Insp., LLC, No. 01-18-00118-CV, 2018 Tex. App. LEXIS 10036, at *38-39
(Tex. App. - Houston (1st. Dist.) Dec. 6, 2018, no pet. h.) (plaintiff's ""general statement"" that it suffered ""unspecified 'delay
damages' and 'damage to its reputation,'"" was ""insufficient to establish damages"" under the TCPA); Barker v. Hurst, No. 01 17-
00838-CV, 2018 Tex. App. LEXIS 4555, at *24 (Tex. App.-Houston [1st Dist.] June 21, 2018, no pet.) (mem. op.) (statement in
affidavit that conduct ""has or will cast and place him, and his family, into disputes, situations, and ridicule for which he had no
control or responsibility"" and has ""injured his reputation and exposed him to contempt in the community and had called into
question his honesty, integrity, virtue, and reputation"" was insufficient to make prima facie case of damages) (internal quotations
omitted); Better Bus. Bureau of Metro. Hous., 441 S.W.3d at 361 (prima facie case not established in tortious
interference [*22] claim when plaintiff ""did not clearly and specifically demonstrate what injuries or damages it suffered as a
result of the interference"").
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2019 TX APP. CT. BRIEFS LEXIS 10958, *22
Conspiracy is a derivative tort. See Trammel Crow Co. No. 60 v. Harkinson, 944 S.W.2d 631,
635 (Tex. 1997). Because Pohl did not establish a prima facie cause on his conversion or theft
of trade secrets claim, which are the underlying torts for which he sought to hold Kassab liable,
Pohl similarly failed to establish a prima facie case on his civil conspiracy claim. See Mem'l
Hermann Health Sys. v. Khalil, No. 01-16-00512-CV, 2017 Tex. App. LEXIS 7474, at *38 (Tex.
App.-Houston [1st Dist.] Aug. 8, 2017, pet. denied) (mem. op. on reh'g).
Regardless, Pohl has failed to establish a prima facie case for each element of his conspiracy
claim against Kassab. A conspiracy claim requires (1) a combination of two or more persons; (2)
an object to be accomplished; (3) a meeting of the minds on the object or course of action; (4)
one or more unlawful or overt acts; and (5) damages as a proximate result. First United
Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 222 (Tex. 2017). Pohl attempted
to establish these elements through a single paragraph in his Amended Petition, which alleged:
Acting in combination with the agreed object of misappropriating Pohl's trade secrets
and [*23] converting Pohl's property, each of the Defendants committed overt acts toward
the unlawful misappropriation of Pohl's trade secrets, which were unlawful and which
proximately caused damages to Pohl.
2CR901. This conclusory allegation is insufficient because Pohl provides no details concerning
the alleged agreement amongst Appellants, the object they sought to accomplish, the specific
overt acts they committed in furtherance of the conspiracy, or how any of these alleged acts
caused him damages. See Dobrott v. Jevin, Inc., No. 05-17-01472-CV, 2018 Tex. App. LEXIS
9840, at *1 (Tex. App.-Dallas Nov. 30, 2018, no pet.) (mem. op.).
Moreover, ""merely proving a joint intent to engage in the conduct that resulted in the injury is
not sufficient to establish a cause of action for civil conspiracy."" Juhl v. Airington, 936 S.W.2d
640, 644 (Tex. 1996) (internal quotations omitted). ""Instead, civil conspiracy requires specific
intent to agree to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful
means."" Id. Pohl provides no details about Kassab's alleged ""specific intent"" to agree to
accomplish an unlawful purpose. 2CR901. In fact, Pohl's pleadings do not even mention
Kassab's intent, only the intent of Nicholson and Favre. See 2CR985 (""Favre, with Nicholson or
with Nicholson's active [*24] and knowing and intentional assistance, then secretly sold Pohl's
stolen confidential information and property to Kassab and Montague.""); 2CR896 (""Thus,
Nicholson's active, knowing and intentional assistance included brokering the illegal sale of
Pohl's information and property as well as actually providing such information and property to
Kassab.""); 2CR900 (""Nicholson's active and knowing and intentional assistance as described
above""). Pohl's conclusory, global allegations against Kassab are insufficient to make a prima
facie showing of conspiracy. See MVS Int'l Corp. v. Int'l Advertising Solutions, LLC, 545
S.W.3d 180, 197 (Tex. App.-El Paso 2017, no pet.) (affidavit discussing circumstantial evidence
was insufficient to support conspiracy claim because it was not ""clear and specific"" and did not
""develop with any specificity a time line of events that would allow a fact finder to draw an
inference of the agreement he alleges."").
D. Kassab conclusively established his affirmative defenses.
1. Pohl's claims are barred by limitations.
Page 11 of 14
2019 TX APP. CT. BRIEFS LEXIS 10958, *24
Pohl argues his claims are not barred by limitations because they began to accrue when the
""Favre-Kassab Agreement"" was executed on November 10, 2016, and he brought this suit
within two years [*25] of that date. Br. Appellees at 36. But Pohl acknowledges that this
agreement is not the basis of his suit. See id. Rather, ""the basis of this suit is the conversion
and misappropriation of the trade secrets through both theft and sale and their use."" Id. This
alleged conversion and misappropriation occurred more than three years before Pohl filed this
lawsuit, and Pohl knew that it had allegedly occurred but neglected to timely file suit.
Pohl's contention that limitations did not begin to accrue until Favre allegedly sold the
purported trade secrets to Kassab is without merit. A misappropriation of trade secrets claim has
a three-year statute of limitations. TEX. CIV. PRAC. & REM. CODE § 16.010(a). The claim
continues over time as a single cause of action and the limitations period begins running without
regard to whether the misappropriation is a single or continuing act. Id. at § 16.010(b).
Moreover, disclosure or sale of the trade secret is unnecessary for a misappropriation claim to
accrue because ""any misappropriation of trade secrets, followed by an exercise of control and
domination, is considered a commercial use"" sufficient for limitations to begin to accrue.
[*26] Garth v. Staktek Corp., 876 S.W.2d 545, 548 (Tex. App. -Austin 1994, writ dism'd w.o.j.).
Therefore, the claim begins to accrue when the plaintiff knew or should have known of the
unlawful misappropriation of the trade secret, regardless of any subsequent disclosure or sale.
See Tavana v. GTE Sw., No. 05-97-00664-CV, 1999 Tex. App. LEXIS 5365, at *11 (Tex. App. -
Dallas, July 21, 1999, pet. denied) (unpublished).
The statute of limitations for conversion is two years. TEX. CIV. PRAC. & REM. CODE §
16.003(a). ""In cases of conversion, the statute of limitations generally begins to run at the time of
the unlawful taking."" Burns v. Rochon, 190 S.W.3d 263, 271 (Tex. App.-Houston [1st Dist.]
2006, no pet.). The discovery rule can apply to conversion claims, see id., but the party relying
on the discovery rule must specifically plead it. See TEX. R. CIV. P. 94. Pohl did not plead the
discovery rule. 1CR4-14; 2CR890-903. Therefore, the defense is waived. See Woods v.
William M. Mercer, Inc., 769 S.W.2d 515, 518 (Tex. 1988) (where the party relying on the
discovery rule fails to plead it, the defense is waived).
Pohl testified that the computers containing the purported trade secrets and client files were
stolen from his office. 1CR671, P 28. Pohl also testified that he closed the office containing
these computers in February of 2014. 1CR673. Therefore, the conversion claim accrued no later
than this date, and Pohl should have known by this [*27] date that the computers containing the
purported trade secrets had been misappropriated (taken). Yet, Pohl waited until August 28,
2018, more than four years later, to file this lawsuit. 1CR4. Accordingly, all claims are barred by
limitations, including the conspiracy claim. See Mayes v. Stewart, 316 S.W.3d 715, 719 (Tex.
App.-Houston [14th Dist.] 2010, no pet.) (statute of limitations for civil conspiracy also is two
years).
Even if Pohl had not waived the right to assert the discovery rule, the rule only defers accrual
until ""demand and refusal, or discovery of facts supporting the cause of action, whichever occurs
first."" Burns, 190 S.W.3d at 271. Pohl alleges that he demanded the allegedly stolen property
be returned, Br. Appellees at 31, and that demand (made to Nicholson, and not Kassab) was
made on February 23, 2016. 2CR1035-36. Thus, it is undeniable that Pohl knew by this date his
Page 12 of 14
2019 TX APP. CT. BRIEFS LEXIS 10958, *27
materials had been wrongfully retained. See id. (""given these circumstances, it is our position
that the documents are stolen property.""). Yet, Pohl did not file suit until August 28, 2018, more
than two years later. 1CR4. The conversion claim is therefore barred by limitations.
2. Pohl's claims are barred by judicial immunity.
Pohl argues that his [*28] claims against Kassab are not barred by judicial immunity because
his ""suit asserts claims for actions taken before Kassab had a single client, much less a client in
litigation."" Br. Appellees at 37. But for judicial immunity to apply, the conduct need only ""bear
some relationship"" to the litigation. See Daystar Residential, Inc. v. Collmer, 176 S.W.3d 24, 29
(Tex. App.-Houston [1st Dist.] 2004, pet. denied). The privilege protects conduct carried out ""in
contemplation of and preliminary to judicial proceedings."" Watson v. Kaminski, 51 S.W.3d
825, 827 (Tex. App. - Houston [1st Dist.] 2001, no pet.) (emphasis added). The conduct need
only ""relate to pending or proposed litigation and must further the attorney's representation.""
Id. (emphasis added). Therefore, Pohl's contention that judicial immunity does not apply to
Kassab's pre-litigation conduct is without merit. See Cantey Hanger, LLP v. Byrd, 467 S.W.3d
477, 485 (Tex. 2015) (attorney was immune from conduct that occurred after litigation had
ended because it was related to the representation).
3. Pohl's claims are barred by res judicata.
Pohl argues that res judicata was not established because the ""conduct at issue in the prior
lawsuit predates the wrongful conduct in the underlying litigation."" Br. Appellees at 39. But
Pohl's own pleadings and testimony demonstrate the [*29] opposite. Pohl testified that
Precision had ""disclosed confidential and proprietary information to third parties without
authorization"" and this is what led to him bringing the prior suit. 1CR665-666. Therefore, Pohl
sued Kassab's alleged co-conspirators (Precision and its owners) for conversion, alleging they
stole his property. 3SCR18. Pohl alleged that Precision and its owners committed misconduct by
""providing Pohl's proprietary information and materials to unauthorized third persons and/or co-
conspirators and converting Pohl's property, including original client contracts and client
personal and claim information, to their own use."" 3SCR194. Pohl even demanded return of the
allegedly stolen property, including the purportedly confidential client files and trade secrets in
the prior Mississippi litigation. 2CR1026-27. Yet, Pohl voluntarily settled his claims against
Kassab's co-conspirators before April 21, 2017, without suing Kassab. 1CR353-354.
Pohl also contends that Kassab failed to meet his burden to establish ""a sufficiently close
relationship"" with the defendants in the prior lawsuit for res judicata to attach. Br. Appellees at
39. But again, Pohl's own allegations and [*30] testimony support Kassab's defense. In the prior
suit, Pohl claimed in correspondence that Nicholson, Favre and Precision had wrongfully
obtained his confidential information and trade secrets, including his attorney-client contracts,
and were going to sell the information ""to attorneys who would use the contracts as the basis for
lawsuits against Pohl ..."" 2CR1026. Pohl alleged that Precision and its owners improperly
provided ""Pohl's proprietary information and materials to unauthorized third persons and/or co-
conspirators"" and converted his ""original client contracts and client personal and claim
information"" to use as their own. 3SCR194 (emphasis added). In this lawsuit, Pohl has identified
Kassab as one of the ""co-conspirators"" who allegedly purchased and received the allegedly
Page 13 of 14
2019 TX APP. CT. BRIEFS LEXIS 10958, *30
stolen information. 2CR895-896. Accordingly, by Pohl's own admissions, Kassab had a
""sufficiently close"" relationship with the defendants in the prior suit for res judicata to apply.
E. Pohl does not dispute that Kassab is entitled to an award of reasonable attorney's
fees and sanctions against Pohl if the trial court erred by failing to grant the motion.
Pohl does not respond to the attorney fee [*31] and sanctions argument, except to state that
""Defendants are not entitled to an award of attorneys' fees because their motions were properly
overruled."" 10 Br. Appellees at 39. But because the trial court erroneously denied Kassab's
motion to dismiss, it also abused its discretion when it declined to award Kassab mandatory
costs, and reasonable attorney's fees and expenses incurred in defending against the claim, and
sanctions, as required by the TCPA. See Schimmel v. McGregor, 438 S.W.3d 847, 863 (Tex.
App.-Houston [1st Dist.] 2014, pet. denied). Pohl does not attempt to controvert the amount of
attorney's fees requested by Kassab. Br. Appellees at 39-40. Therefore, an attorney fee award
of $ 81,750 is reasonable, and should be awarded to Kassab along with an appropriate
monetary sanction against Pohl to deter Pohl from bringing similar actions in the future. See
Urquhart v. Calkins, No. 01-17-00256-CV, 2018 Tex. App. LEXIS 5145, at *11-12 (Tex. App.-
Houston [1st Dist.] July 10, 2018, no pet. h.) (mem. op.).
CONCLUSION & PRAYER
For all these reasons, Kassab requests the relief described on page 61-62 of Brief of Appellant.
Respectfully submitted,
ALEXANDER DUBOSE JEFFERSON & TOWNSEND LLP
/s/ Kevin Dubose
Kevin Dubose [*32]
State Bar No. 06150500
kdubose@adjtlaw.com
1844 Harvard Street
Houston, Texas 77008
Telephone: (713) 523-2358
Facsimile: (713) 523-4553
THE KASSAB LAW FIRM
Lance Christopher Kassab
State Bar No. 00794070
lance@kassab.law
David Eric Kassab
10 Pohl does argue that an award of attorney's fees to Nicholson and Favre would be improper, but for reasons not applicable to
Kassab.
Page 14 of 14
2019 TX APP. CT. BRIEFS LEXIS 10958, *32
State Bar No. 24071351
david@kassab.law
1214 Elgin Street
Houston, Texas 77004
Telephone: (713) 522-7400
Facsimile: (713) 522-7410
Attorneys for the Kassab Appellants
CERTIFICATE OF COMPLIANCE
Based on a word count run in Microsoft Word, this brief contains 6,731 words (excluding the
items exempted under Texas Rule of Appellate Procedure 9.4(i)(1).
/s/ David Eric Kassab
David Eric Kassab
CERTIFICATE OF SERVICE
I certify that on June 21, 2019, I electronically filed this brief with the Clerk of the Court using
the eFile.TXCourts.gov electronic filing system which will send notification of such filing to all
counsel of record.
/s/ David Eric Kassab
David Eric Kassab
End of Document"
10,2019-05-13,2019-05-13 BRF Nicholson-Appellants-Opening-Brief-TCPA FILED,appellate,2019-05-13_BRF_Nicholson-Appellants-Opening-Brief-TCPA_FILED.pdf,"KASSAB v. POHL
No. 01-18-01143-CV
COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON
May 13, 2019
Reporter
2019 TX APP. CT. BRIEFS LEXIS 10876 *
LANCE CHRISTOPHER KASSAB AND LANCE CHRISTOPHER KASSAB, P.C. D/B/A THE
KASSAB LAW FIRM, ET AL., Appellants v. MICHAEL A. POHL, ET AL., Appellees
Type: Brief
Prior History: Interlocutory Appeal from the 189th District Court, Harris County, Texas, Hon.
Scot ""Dolli"" Dollinger. Trial Court Cause No. 2018-58419.
Counsel
Jessica Z. Barger, State Bar No. 24032706, E. Marie Jamison, State Bar No. 24044647,
WRIGHT CLOSE & BARGER, LLP, Houston, Texas, Chris C. Pappas, State Bar No. 15454300,
Andrew J. Sarne, State Bar No. 00797380, KANE RUSSELL COLEMAN LOGAN PC, Houston,
Texas, Counsel for Appellants , Tina Nicholson and Baker Nicholson, LLP d/b/a Baker
Nicholson Law Firm.
Title
BRIEF OF APPELLANTS TINA NICHOLSON AND BAKER NICHOLSON, LLP D/B/A
BAKER NICHOLSON LAW FIRM
Text
IDENTITY OF PARTIES AND COUNSEL [*1]
Appellants:
Tina Nicholson
Baker Nicholson, LLP d/b/a Baker Nicholson Law Firm
Scott Favre
Scott M. Favre PA, LLC
Precision Marketing Group, LLC
Lance Christopher Kassab
Lance Christopher Kassab, P.C. d/b/a The Kassab Law Firm
Counsel for Appellants Tina Nicholson and Baker Nicholson, LLP d/b/a Baker Nicholson
Law Firm:
Page 2 of 26
2019 TX APP. CT. BRIEFS LEXIS 10876, *1
Jessica Z. Barger
E. Marie Jamison
WRIGHT CLOSE & BARGER, LLP
One Riverway, Suite 2200
Houston, Texas 77056
(713) 572-4321
(713) 572-4320 (facsimile)
Appellate Counsel
Chris C. Pappas
Andrew J. Sarne
KANE RUSSELL COLEMAN LOGAN PC
5051 Westheimer Road, Suite 1000
Houston, Texas 77056
(713) 425-7400
(713) 425-7700 (facsimile)
Trial and Appellate Counsel
Counsel for Appellants Lance Christopher Kassab and Lance Christopher Kassab, P.C.
d/b/a The Kassab Law Firm:
Kevin Dubose
ALEXANDER DUBOSE & JEFFERSON LLP
1844 Harvard Street
Houston, Texas 77008
(713) 523-0667
(713) 522-4553 (facsimile)
Appellate Counsel
Lance Christopher Kassab
David Eric Kassab
THE KASSAB LAW FIRM
1214 Elgin Street
Houston, Texas 77004
(713) 522-7400 [*2]
Page 3 of 26
2019 TX APP. CT. BRIEFS LEXIS 10876, *2
(713) 522-7410 (facsimile)
Trial and Appellate Counsel
George ""Buck"" Cire
THE CIRE LAW FIRM
1770 Saint James Place, Suite 350
Houston, Texas 77057
(713) 532-6206
(713) 400-4999 (facsimile)
Trial Counsel
Counsel for Appellants Scott Favre, Scott M. Favre PA, LLC, and Precision Marketing
Group, LLC:
Todd Taylor
Jocelyn A. Holland
JOHANSON & FAIRLESS
1456 First Colony Boulevard
Sugar Land, Texas 77479
(281) 313-5000
(281) 340-5100 (facsimile)
Trial and Appellate Counsel
Appellees:
Michael A. Pohl and Law Office of Michael A. Pohl, PLLC
Counsel for Appellees:
Jean C. Frizzell
REYNOLDS FRIZZELL LLP
1100 Louisiana St., Suite 3500
Houston, Texas 77002
(713) 485-7200
(713) 485-7250 (facsimile)
Trial and Appellate Counsel
STATEMENT OF THE CASE
Page 4 of 26
2019 TX APP. CT. BRIEFS LEXIS 10876, *2
Nature of case : This is an interlocutory appeal from the denial of Appellants' motions to
dismiss under Chapter 27 of the Texas Civil Practice and Remedies Code, the Texas Citizens
Participation Act (hereinafter the ""TCPA"").
Appellees, Michael A. Pohl and the Law Office of Michael A. Pohl, PLLC (collectively ""Pohl""),
hired Appellant Precision Marketing Group, LLC [*3] (""Precision"") to solicit clients in Mississippi
who had potential claims arising from the Deepwater Horizon Oil Spill and other personal injury
matters. 1 CR 78-79; 2 CR 868, 895. 1 Some of the solicited clients later terminated Pohl's legal
services and hired counsel in Houston, The Kassab Law Firm, to sue Pohl for barratry. 1 CR 87-
88; 2 CR 898. In retaliation for participating in and filing barratry lawsuits against Pohl on behalf
of the solicited clients, Pohl filed the underlying conversion and trade secret lawsuit against
several defendants, including: (1) Tina Nicholson and Baker Nicholson, LLP d/b/a Baker
Nicholson Law Firm (collectively ""Baker Nicholson""); (2) Lance Christopher Kassab and Lance
Christopher Kassab, P.C. d/b/a The Kassab Law Firm (collectively ""Kassab""); (3) Precision; and
(4) the owner of Precision, Scott Favre and Scott M. Favre Public Adjuster, LLC (collectively
""Favre""). 2 CR 890. [*4]
Pohl alleges: (1) the client files, client solicitation list, and other marketing material from the
Deep Horizon litigation and other personal injury matters are trade secrets belonging to Pohl; (2)
Precision, Favre, and Baker Nicholson gave the client information to Kassab; (3) Pohl did not
consent to accessing or disclosing the client information to Kassab; and (4) Kassab used the
information to initiate barratry lawsuits against Pohl. 2 CR 890-91. Pohl sued Appellants for
misappropriation of trade secrets, conversion, and civil conspiracy. Id.
Course of Proceedings : Appellants were served with suit at different times. Each Appellant
timely filed an answer and a separate motion to dismiss under the TCPA. 1 CR 15, 28, 57, 62,
75; 2 CR 680, 853, 867; 3 S. CR 131, 136. The motions were timely heard by the trial court on
November 5, 2018. 3 S. CR 91, 129. Baker Nicholson's motion was heard on December 3,
2018. 3 S. CR 129-30; 2 RR.
Trial court's disposition : The trial court did not rule on any of the motions to dismiss, and
they were denied by operation of law. Baker Nicholson's motion was denied by operation of law
on January 2, 2019. See TEX. CIV. PRAC. & REM. CODE § 27.008. Baker Nicholson timely
filed its notice of appeal on January 22, 2019. 2 S. CR 5-8.
STATEMENT ON JURISDICTION
This court has jurisdiction over this appeal because it is an interlocutory appeal permitted
under Texas Civil Practice & Remedies Code sections 27.008 and 51.014(12).
STATEMENT REGARDING ORAL ARGUMENT
1 References to the Clerk's Record are made herein as ""[volume] CR [page],"" references to the Third Supplemental Clerk's
Record are ""3 S. CR [page], and references to the Fourth Supplemental Clerk's Record are ""4 S. CR [page]."" References to the
reporter's record are as ""[volume] RR [page].""
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2019 TX APP. CT. BRIEFS LEXIS 10876, *4
[*5] Appellants request the opportunity to present oral argument to the Court, pursuant to
Texas Rules of Appellate Procedure 38.1(e) and 39. Although Appellants believe the trial court's
errors of law are apparent from the face of the record, the legal issues presented in this matter
are significantly important given the increase in litigation and interlocutory appeals under the
TCPA. Appellants believe oral argument would significantly aid the Court's resolution in this
case and rendering a judgment and issuing an opinion that will guide courts and litigants in
applying the TCPA.
ISSUES PRESENTED
Pohl's claims against Baker Nicholson are based on, directly relate to, or are in response to
Baker Nicholson's exercise of its rights to free speech, association, and petition as defined
under the Texas Citizens Participation Act. Pohl brought the underlying lawsuit because Baker
Nicholson freely communicated and associated with others regarding an attorney's unethical
conduct and the filing of barratry lawsuits for that attorney's improper solicitation of clients.
Pohl's claims are not exempted by the commercial speech exception because Baker Nicholson
is in the business of offering [*6] legal services to clients, and Pohl is not suing Baker Nicholson
for such services.
The burden shifted to Pohl to establish a prima facie case on each element of his claims with
clear and specific evidence. Pohl failed to do so. Pohl failed to establish ownership of client files,
solicitation lists, and other marketing material. The evidence in fact proves that Precision at all
relevant times owned and possessed the solicitation list and marketing material. Pohl similarly
failed to establish that the client information is a trade secret or that he took steps to maintain its
confidentiality. Finally, Texas does not recognize a claim for conversion of intangible property,
similar to the electronic client data at issue in this case. Baker Nicholson properly filed a motion
to dismiss Pohl's claims based on the TCPA. Baker Nicholson also argued that no exemption
from the act applies. The trial court erred in impliedly denying Baker Nicholson's motion to
dismiss.
Issue one . The TCPA applies to Pohl's claims because they are based on, relate to, or are
in response to Baker Nicholson's exercise of free speech, right of association and right to
petition.
Issue two . The [*7] commercial speech exemption does not preclude dismissal.
Issue three . Pohl failed to establish a prima facie case against Baker Nicholson.
Issue four . Pohl's claims are barred by the statute of limitations and judicial immunity.
Issue five . Because Pohl's claims are barred under the TCPA, Baker Nicholson is entitled to
attorney's fees. Attorney's fees are mandatory and should be awarded to Baker Nicholson.
TO THE HONORABLE COURT OF APPEALS:
Appellants Tina Nicholson and Baker Nicholson, LLP d/b/a Baker Nicholson Law Firm file their
brief and respectfully show the Court as follows.
PRELIMINARY STATEMENT
Page 6 of 26
2019 TX APP. CT. BRIEFS LEXIS 10876, *7
The TCPA, or ""anti-SLAPP"" statute's core objective is early dismissal of a SLAPP suit. A
SLAPP suit is considered meritless, warranting early dismissal, because it is intended to
intimidate a party from engaging in free speech, association, or petition by burdening a person
with the time and cost of a legal defense until they finally surrender-exactly what Pohl is hoping
to achieve with his lawsuit against Baker Nicholson and others.
In filing his lawsuit in 2018, Pohl did not have a good-faith belief that he owns former client files
and marketing [*8] information, or that such information is a trade secret, or the information was
stolen. Rather, Pohl waited five years after the alleged conversion, but mere months after the
barratry lawsuits, to sue Baker Nicholson and others for conversion and theft of trade secrets.
Pohl's lawsuit is an obvious display of his retaliation and is intended to intimidate Baker
Nicholson and others from continuing to participate in litigation against Pohl.
Pohl's lawsuit is a vengeful response to exposing unethical conduct, filing barratry lawsuits,
and engaging in other communications protected by the TCPA. Baker Nicholson respectfully
requests that this Court reverse the implicit denial of its motion to dismiss, render judgment
dismissing all causes of action against Baker Nicholson, and remand to the trial court for
consideration of attorney's fees and costs to be awarded to Baker Nicholson.
STATEMENT OF THE FACTS
I. Pohl hires Precision in 2012 to solicit clients in Mississippi.
The relevant background in this case starts in 2012 when Pohl hired Precision to solicit clients.
Pohl, a Texas lawyer, entered into a joint venture with Jimmy Williamson; the purpose of the
joint venture was [*9] to identify, contract, and represent individuals with claims arising from the
BP Deepwater Horizon Oil Spill. 1 CR 120-21. The Pohl-Williamson joint venture hired three
individuals (Scott Walker, Kirk Ladner, and Steve Seymour) to assist with fulfilling the joint
venture's purpose of soliciting clients. 1 CR 122, 127, 130-34. More specifically, Walker, Ladner,
and Seymour were hired to identify and sign up clients who were injured from various personal
injury events for Pohl and Williams. Id. In return for the solicitation services, the Pohl-Williams
joint venture agreed to pay the three men an upfront fee for each client and an additional
payment (a percentage of Pohl's attorney's fees) on the back end of the client representation.
Walker, Ladner, and Seymour later founded Precision and ran the same solicitation services
through the company. Although the solicitation practices and agreement with the Pohl-Williams
joint venture was unlawful barratry, the parties performed the agreement for over a year, and it
was lucrative for all participating parties. 1 CR 178.
Over the course of the arrangement, Precision and its runners received over $ 5 million in
""barratry pass-through money"" from Pohl and other lawyers to solicit potential clients, [*10] both
auto-accident victims and those involved in the BP litigation. 1 CR 176. The money was used, in
part, to pay contract workers to solicit clients and to train ""40 or 50 people"" on how to ""go out
and solicit contracts"" on behalf of Pohl. 1 CR 177, 179. Precision was first retained by Pohl to
""recruit clients"" with injuries resulting from the BP Deepwater Horizon oil spill. 1 CR 183. When
that litigation dwindled, Pohl shifted his focus to catastrophic automobile accidents. 1 CR 147-
48.
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2019 TX APP. CT. BRIEFS LEXIS 10876, *10
To solicit potential clients involved in severe automobile accidents, individuals at Precision
would receive ""Google alerts"" or leads from Pohl on recent catastrophic collisions. 1 CR 65,
184-85 Runners at Precision would personally go to accident victims to ""do marketing"" by letting
them know ""there were attorneys [who] could help."" 1 CR 185. For its services, Precision and its
runners where paid between $ 2,500 and $ 5,000 to solicit the client. 1 CR 192-93. These
payments flowed from Pohl through a company set up for this purpose, ""Helping Hands
Financing,"" to Precision, and then to each individual runner. 1 CR 194-201, 210-11; 2 CR 856-
57. Walker simply submitted to Pohl the amount that Precision paid its runners, and Pohl
reimbursed Precision. 1 CR 202.
The [*11] relationship ended when Pohl and Williamson decided they no longer wanted to pay
Precision or its runners for solicitation services. Precision filed suit to recoup money it claimed
was due under the parties' agreement. 1 CR 152-53.
II. Precision sues Pohl and Williamson in Mississippi for breaching the solicitation
agreement. The Mississippi Litigation reveals some of Pohl's unethical solicitation
practices.
In October 2014, Precision and its owners filed suit against Pohl and others in Mississippi
federal court (the ""Mississippi Litigation""). 1 CR117-68. Precision, Walker, Ladner, and Seymour
alleged: (1) they had a joint venture with Pohl to sign up clients with economic loss claims
stemming from the BP Deepwater Horizon oil spill and clients involved in tragic automobile
accidents; (2) they successfully secured these clients for Pohl; and (3) Pohl breached their
agreement by not paying the agreed-upon fee, including their agreed share of Pohl's attorney's
fees for referring these clients to Pohl. 1 CR 148, 153.
The evidence presented in the Mississippi Litigation established that Pohl engaged in barratry.
See TEX. PEN. CODE § 38.12 (defining barratry generally as the improper solicitation [*12] of
clients). During that litigation, Walker testified that Pohl retained him and Precision to ""provide
marketing services"" to auto accident victims. 1 CR 171. Walker testified that although he and
Pohl called it ""marketing services"" or ""marketing money,"" it was ""clear to [him] it was barratry."" 1
CR 178. Walker actually considered himself and his company ""a pass-through for barratry
money."" 1 CR 179.
The Mississippi Litigation revealed appalling solicitation practices: One of the runners,
Magdalena Santana, swore in an affidavit that Pohl sent her on ""dozens and dozens of car
wreck cases all over the country"" to solicit clients on his behalf. 1 CR 208. Pohl offered to pay
Santana ""$ 5,000 per case that [she] signed, plus a percentage of his attorney's fees."" 1 CR
209. Pohl would email Santana the link of news coverage depicting a collision, ask her to go to
the victim or the victim's family in person, and to get the victim to sign up with Pohl. 1 CR 208.
Pohl encouraged Santana to ""be persistent even if the family ... rejected [her]."" 1 CR 209.
Pohl told Santana to ""approach the victims and their families while they were vulnerable, in the
emergency room, their hospital rooms, or at the funerals."" [*13] Id. Pohl told Santana that
minorities ""were especially vulnerable since they tended not to know that the law prohibited
barratry."" Id. According to Pohl, they ""were easier to sign up."" Id. Pohl paid Santana ""money
to give to the victims or their families"" but ""only if they agreed to sign a Pohl representation
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2019 TX APP. CT. BRIEFS LEXIS 10876, *13
contract."" 1 CR 208. Pohl advised Santana that the money was a ""foot in the door,"" but
instructed Santana not to mention that she was there on behalf of a lawyer ""until after they
agreed to take the money."" 1 CR 210-11. ""If the client agreed to hire Pohl, then [Santana] was to
have the client sign a 'Helping Hands' contract."" Id. Pohl would then give Santana the money to
pay the client ""from his own Helping Hands company."" Id. When Santana questioned this, Pohl
told Santana that it ""was illegal for him to pay [her] directly for cases, and that's why the money
had to go through some company."" 1 CR 210.
The first auto accident client Santana approached involved an accident where a woman and
her unborn child lost their lives. 1 CR 249. Santana was instructed by Walker, who was
instructed by Pohl, to personally visit the mother of the deceased and sign her up to sue
the [*14] tire manufacturer and, if successful, Pohl would pay her $ 5,000. 1 CR 249-50.
Santana visited the funeral of the deceased and got the family to feel comfortable with her. Id.
Although the mother was grieving, Pohl told Santana: ""take no prisoners, this is a cut throat
business, you get in there and you do whatever it takes to get this client."" 1 CR 251. The
solicitation was successful after Pohl gave Santana $ 2,000 to ""give to the client to convince her
into signing over with the firm."" 1 CR 252.
Pohl later paid Santana to sign an agreement not to reveal that Pohl committed any
wrongdoing or criminal or unethical conduct. 1 CR 261. Santana testified that Pohl paid her $
50,000 cash to sign this agreement, which was delivered to her in Florida by Pohl's paralegal,
Edgar Jaimes, in three bags marked ""trick or treat."" 1 CR 254-59. Jaimes confirmed this under
oath; this criminal act remains undisputed. 1 CR 243-44. Santana signed the statement and
received the cash, although she believed she was ""forced to sign"" it while ""under duress."" 1 CR
261-62, 272.
Another runner, Kenneth Talley, testified in the Mississippi Litigation about the barratry. Talley
solicited over 20 automobile collision cases for Pohl, including [*15] two families who hired
Kassab to sue Pohl for barratry. 1 CR 296. Talley testified that he was first hired in relation to BP
claims to find ""folks that lost money due to the oil spill"" and ""sign them up"" and ""get a fee for it.""
1 CR 280. Talley solicited and signed up for Pohl and his partner more than 800 BP claims, and
was paid between $ 75 and $ 350 per client he referred. 1 CR 280-82. Talley eventually
transitioned to soliciting automobile accident victims, ""calling on folks that had bad accidents."" 1
CR 283. Talley recalls that the first client he solicited was in ""the hospital in intensive care."" Id.
Talley always carried with him up to $ 1,000 in cash to pay accident victims to ""help them with
problems"" and influence them to hire Pohl, to be paid only after they ""were signed up."" 1 CR
284. Talley would advise the victims that he had an attorney who could help them, and that
attorney was Pohl. 1 CR 287. For each auto accident case he solicited, Talley was paid a fee of
$ 1,400 plus his expenses by Pohl, through Walker and Precision. 1 CR 287-88.
On some cases, Talley was to receive a portion of Pohl's attorney's fees, and even discussed
with Pohl the ""percentage of settlements"" he was to receive on the back end. 1 CR [*16] 298-
302. When asked whether Pohl knew he was getting paid to ""contact vehicle accident victims,""
Talley responded, ""the money was coming from Edgar [Jaimes] who worked for him."" 1 CR 301.
Although his paycheck was from Precision, ""the funding came by way of Edgar [Jaimes]."" Id.
Talley testified that both he and Pohl knew what they were doing was illegal. 1 CR 293-94.
Page 9 of 26
2019 TX APP. CT. BRIEFS LEXIS 10876, *16
III. Favre purchases Precision, and Precision transfers and assigns its assets and claims
against Pohl to Favre.
During the Mississippi Litigation in May 2016, Scott Favre, an insurance adjuster, purchased
Precision and all the company's assets, including Precision's claims against Pohl in the
Mississippi Litigation. 1 CR 640; 3 S. CR 137. Baker Nicholson represented Favre and Precision
in the Mississippi Litigation. 1 CR 8, 110, 342. Pohl asserted counterclaims against Walker and
Precision in the Mississippi Litigation alleging that they (and other unknown defendants and co-
conspirators) converted his property. 3 S. CR 16-18.
Notably, Pohl moved to dismiss the claims against him, admitting that the agreements between
him and the runners were illegal and unenforceable. 1 CR 336-39. Pohl argued that under both
Texas and Mississippi law ""it is illegal for a non-lawyer to accept or agree to accept money to
improperly solicit clients for a lawyer."" 1 CR 338. The Mississippi federal court rejected Pohl's
arguments and determined that the agreements to solicit clients would only be a violation of
Texas law and disciplinary rules, which did not apply to the runners [*17] who were Mississippi
residents. 1 CR 349-50. Pohl's motion for summary judgment was denied, accordingly. Pohl
then settled the Mississippi Litigation with all parties, including Favre and Precision. 1 CR 353-
54.
IV. Kassab, Favre, Precision, and Baker Nicholson discuss Pohl's unlawful and unethical
conduct, and associate to expose the solicitation and barratry schemes. Kassab files suit
on behalf of more than 400 victims of Pohl's barratry scheme and files a grievance
against Pohl with the State Bar of Texas for the same conduct.
Kassab is a licensed Texas attorney who specializes in legal malpractice and publicly exposing
attorney misconduct. 1 CR 109. Kassab's acquaintance, F. Douglas Montague of the Mississippi
law firm Montague Pittman & Varnado, PA (""Montague""), alerted Kassab of the Mississippi
Litigation and Pohl's conduct. 1 CR 109-10. Kassab obtained information related to the
Mississippi Litigation from the federal court's online system, PACER. 1 CR 110. Kassab also
spoke with Precision, Favre, and Baker Nicholson. They discussed Pohl's conduct that was
revealed in the Mississippi Litigation, a matter of public concern. Precision, Favre, and Baker
Nicholson gave client information to Kassab, including the names and [*18] addresses of Pohl's
former clients or prospective clients, to assist with identifying potential victims of Pohl's unlawful
solicitation practices. 1 CR 109-10. With this information, Kassab sent written notifications to
individuals he believed were victims of unethical conduct. 1 CR 110. Hundreds of individuals
responded, indicating they had been personally solicited to hire Pohl relating to their car collision
or BP claims and requested representation. Id. Kassab agreed to represent these clients, and
more than 400 individuals hired Kassab to represent them in barratry suits against Pohl. Id.
Kassab filed four petitions on behalf of these barratry victims in Harris County, Texas. 1 CR
379-576. These petitions communicated matters of public concern: that Pohl conspired to
commit unethical solicitation known as barratry. See id.; see also 1 CR 110. After reviewing
the evidence obtained from the Mississippi Litigation, Kassab believed he had a duty to file a
grievance against Pohl; and he filed a grievance with the Texas State Bar. Id. Kassab also filed
a grievance against Pohl on behalf of one of his clients. Id. In the grievances, Kassab and his
client expressed concerns relating to Pohl's legal services [*19] in the marketplace and
Page 10 of 26
2019 TX APP. CT. BRIEFS LEXIS 10876, *19
petitioned the State Bar of Texas to reprimand and discipline Pohl in order to protect the citizens
of Texas and other states. See 1 CR 578-638.
V. Pohl retaliates and sues Appellants for conversion, misappropriation of trade secrets,
and civil conspiracy. Appellants move separately to dismiss under the TCPA, and the
motions are denied by operation of law.
Pohl sued Baker Nicholson, Kassab, Precision, Favre, and Montague; Pohl sued Baker
Nicholson for misappropriation of trade secrets, conversion, and civil conspiracy. App. Tab 1; 1
CR 4-14. Pohl alleged that Appellants were ""acting in combination with the agreed objective"" to
misappropriate his trade secrets and convert the marketing lists and attorney-client contracts
that Precision obtained while soliciting clients in 2012 and 2013. 1 CR 9, 13. Pohl alleged Favre
and Precision, with Nicholson's assistance, converted this property (client data) and provided it
to Kassab and Montague in order to convince Pohl's former clients ""to bring cases against Pohl
for alleged barratry and other claims."" 1 CR 9-10.
Baker Nicholson denied the allegations and moved to dismiss the lawsuit pursuant to the
TCPA. 2 CR 680-84, 867-80; 3 S. CR 129. A timely hearing was conducted on Baker
Nicholson's motion to dismiss. 2 RR. The trial court did not rule on the motion within thirty days,
and the motion was denied by operation of law on January 2, 2019. TEX. CIV. PRAC. & [*20]
REM. CODE § 27.008(a). This appeal ensued.
SUMMARY OF THE ARGUMENT
In the trial court, Baker Nicholson demonstrated that Pohl's claims for alleged conversion,
misappropriation of trade secrets, and conspiracy are based on, related to, or in response to
Baker Nicholson's exercise of a right protected by the TCPA-the right to freely speak, associate,
and petition. Pohl brought the underlying lawsuit because Baker Nicholson and others freely
communicated and associated regarding Pohl's unethical conduct and the filing of barratry
lawsuits against Pohl for his improper solicitation of clients and because Baker Nicholson
exercised its right to freely petition. Additionally, Pohl's claims are not exempted by the
commercial speech exception because Baker Nicholson is in the business of offering legal
services to clients, and Pohl is not suing Baker Nicholson for such services.
Because the TCPA applies, Pohl was required to establish a prima facie case against Baker
Nicholson. Pohl failed to meet his burden. He first failed to establish ownership of client files,
solicitation lists, and other marketing material. The evidence proves that Precision at all relevant
times owned and possessed the solicitation [*21] list and marketing material. Notably, client
files do not belong to the lawyer-the client owns the client file. Second, Pohl similarly failed to
establish that the client information is a trade secret or that he took steps to maintain its
confidentiality. And third Pohl presented no clear and specific evidence that Baker Nicholson
unlawfully acquired the data. Texas does not recognize a claim for conversion of intangible
property, similar to the electronic client data at issue in this case.
Furthermore, Pohl's claims fail as a matter of law because they are barred by limitations and
judicial immunity. Pohl testified that the alleged misappropriation and theft occurred in 2014. Suit
was filed in 2018, well beyond the limitations periods for conversion (two years) and statutory
Page 11 of 26
2019 TX APP. CT. BRIEFS LEXIS 10876, *21
misappropriation of trade secrets (three years). Moreover, it is well established that a statement
made in the course of a judicial or quasi-judicial proceeding cannot serve as the basis for a civil
action. Pohl's failure to carry his burden to demonstrate a prima facie case for each element of
his conversion, statutory misappropriation of trade secrets, and civil conspiracy claims entitled
Baker Nicholson [*22] to dismissal of Pohl's claims.
Finally, the trial court abused its discretion when it failed to grant Baker Nicholson's request for
attorney's fees. The TCPA requires an award of reasonable attorney's fees to the successful
movant. Because the trial court improperly denied the motion to dismiss, it abused its discretion
when it declined to award Baker Nicholson's attorney's fees.
STANDARD OF REVIEW & STATUTORY SCHEME
The TCPA ""protects citizens from retaliatory lawsuits that seek to intimidate or silence them""
from exercising their First Amendment freedoms and provides a procedure for the ""expedited
dismissal of such suits."" In re Lipsky, 460 S.W.3d 579, 586 (Tex. 2015) (orig. proceeding);
Epperson v. Mueller, No. 01-15-00231-CV, 2016 WL 4253978, at *8 (Tex. App.-Houston [1st
Dist.] Aug. 11, 2016, no pet.). Materially here, ""[i]f a legal action is based on, relates to, or is in
response to a party's exercise of the right of free speech, right to petition, or right of association,
that party may file a motion to dismiss the legal action."" TEX. CIV. PRAC. & REM. CODE §
27.003.
The Supreme Court of Texas has recognized that the stated purpose of the TCPA is to
""encourage and safeguard the constitutional rights of persons to petition, speak freely, associate
freely, and otherwise participate in government [*23] to the maximum extent permitted by law
and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable
injury."" ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 898 (Tex. 2017) (quoting TEX.
CIV. PRAC. & REM. CODE § 27.002); Hersh v. Tatum, 526 S.W.3d 466 (Tex. 2017) (same).
The TCPA is intended to identify and summarily dispose of lawsuits ""designed only to chill First
Amendment rights, not to dismiss meritorious lawsuits."" Lipsky, 460 S.W.3d at 589; Epperson,
2016 WL 4253978, at *8.
To effectuate its purpose, the TCPA provides a ""two-step procedure to expedite the dismissal
of claims brought to intimidate or to silence a defendant's exercise of these First Amendment
rights."" Coleman, 512 S.W.3d at 898 (citing TEX. CIV. PRAC. & REM. CODE § 27.003);
Dolcefino v. Cypress Creek EMS, 540 S.W.3d 194, 198 (Tex. App.-Houston [1st Dist.] 2017, no
pet.). Under the first step, a defendant must show by a preponderance of the evidence that the
TCPA applies. TEX. CIV. PRAC. & REM. CODE § 27.005(b). The TCPA applies if the plaintiff's
""legal action,"" defined as ""a lawsuit, cause of action, petition, complaint, cross-claim, or
counterclaim or any other judicial pleading or filing that requests legal or equitable relief,"" is
based on, relates to, or is in response to the movant's exercise of [*24] (1) the right of free
speech; (2) the right to petition; or (3) the right of association. TEX. CIV. PRAC. & REM. CODE
§ 27.001(6); Lipsky, 460 S.W.3d at 586-87.
If the first step is met, the burden then shifts to the plaintiff under the second step to establish
by ""clear and specific evidence a prima facie case for each essential element"" of his claim. TEX.
Page 12 of 26
2019 TX APP. CT. BRIEFS LEXIS 10876, *24
CIV. PRAC. & REM. CODE § 27.005(c); Lipsky, 460 S.W.3d at 587. ""The legislature's use of
'prima facie case' in the second step of the inquiry implies a minimal factual burden: '[a] prima
facie case represents the minimum quantity of evidence necessary to support a rational
inference that the allegation of fact is true.'"" Schimmel v. McGregor, 438 S.W.3d 847, 855 (Tex.
App.-Houston [1st Dist.] 2014, pet. denied) (quoting KTRK Television, Inc. v. Robinson, 409
S.W.3d 682, 688 (Tex. App.-Houston [1st Dist.] 2013, pet. denied)).
When determining whether a legal action should be dismissed, ""the court shall consider the
pleadings and supporting and opposing affidavits stating the facts on which the liability or
defense is based."" TEX. CIV. PRAC. & REM. CODE § 27.006(a). If the defendant meets the first
step, and the plaintiff has not met the required showing of a prima facie case with clear and
specific evidence, the trial court must dismiss the plaintiff's claim. [*25] See TEX. CIV. PRAC.
& REM. CODE § 27.005(c). Even if the plaintiff satisfies the second step, the court will
nonetheless dismiss the action if the defendant ""'establishes by a preponderance of the
evidence each essential element of a valid defense' to the plaintiff's claim."" Coleman, 512
S.W.3d at 899 (quoting TEX. CIV. PRAC. & REM. CODE § 27.005(d)).
If the trial court dismisses the legal action under the TCPA, the court ""shall award"" to the
moving party:
(1) court costs, reasonable attorney's fees, and other expenses incurred in defending
against the legal action as justice and equity may require; and
(2) sanctions against the party who brought the legal action as the court determines
sufficient to deter the party who brought the legal action from bringing similar actions
described in this chapter.
TEX. CIV. PRAC. & REM. CODE § 27.009(a).
This Court reviews de novo the denial of the trial court's TCPA motion to dismiss. Better
Bus. Bureau of Metro. Hous., Inc. v. John Moore Servs., Inc., 441 S.W.3d 345, 353 (Tex. App.-
Houston [1st Dist.] 2013, pet. denied); see also Dolcefino, 540 S.W.3d at 199 (applying de
novo standard to TCPA motion to dismiss denied by operation of law) (citing Avila v. Larrea,
394 S.W.3d 646, 652-53, 656 (Tex. App.-Dallas 2012, pet. denied)). The appellate court
views [*26] the evidence in the light most favorable to the non-movant. Dolcefino, 540 S.W.3d
at 199; see Cheniere Energy, Inc. v. Lotfi, 449 S.W.3d 210, 214 (Tex. App.-Houston [1st Dist.]
2014, no pet.).
ARGUMENT & AUTHORITIES
I. The TCPA applies to Pohl's claims against Baker Nicholson.
Applying the de novo standard of review, Baker Nicholson met its burden of proving the TCPA
applies to Pohl's claims. To satisfy this burden, Baker Nicholson was required to demonstrate by
a preponderance of the evidence that (1) Pohl's ""legal action"" (2) ""is based on, relates to, or is in
response to"" (3) Baker Nicholson's exercise of its right of free speech, association, or petition.
See TEX. CIV. PRAC. & REM. CODE § 27.005(b).
Page 13 of 26
2019 TX APP. CT. BRIEFS LEXIS 10876, *26
No one disputes in this case that Pohl's claims constitute a ""legal action,"" a term defined to
include ""a cause of action."" Id. § 27.001(6). Pohl sued Baker Nicholson for conversion and
misappropriation of trade secrets under the Texas Uniform Trade Secrets Act (""TUTSA""), and
civil conspiracy. 2 CR 890-903. Therefore, Baker Nicholson needed only to demonstrate the
following remaining elements: Pohl's causes of action for conversion, misappropriation of trade
secrets, and civil conspiracy are based on, relate to, or are in response to [*27] either Baker
Nicholson's exercise of its right to freely speak, associate, or petition as defined by the TCPA.
A. Pohl's claims are based on, relate to, or are in response to Baker Nicholson's
exercise of the right of free speech or association.
The TCPA defines both the exercise of the right of free speech and the exercise of the right of
association as involving communications. TEX. CIV. PRAC. & REM. CODE § 27.001(2)-(3).
""Exercise of the right of association"" is ""a communication between individuals who join together
to collectively express, promote, pursue, or defend common interests."" Id. § 27.001(2).
""Exercise of the right to free speech"" is ""a communication made in connection with a matter of
public concern."" Id. § 27.001(3). ""Communication"" is defined as including ""the making or
submitting of a statement or document in any form or medium, including oral, visual, written,
audiovisual, or electronic."" Id. § 27.001(1). The plain language of this definition extends the
application of the TCPA to ""[a]lmost every imaginable form of communication, in any medium.""
Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 894 (Tex. 2018).
Two theories primarily underlie Pohl's claims against Baker Nicholson: [*28] (1) Baker
Nicholson, with Precision and Favre, allegedly stole client files, solicitation lists, and other
marketing material by accessing the information from Pohl's computer in 2013 or 2014 and gave
the electronic data to Kassab for the purpose of identifying potential clients to represent in
barratry suits against Pohl; and (2) Baker Nicholson and others used the data to file civil lawsuits
against Pohl. 2 CR 894-97, 899-901. The record clearly demonstrates that Pohl's legal action
against Baker Nicholson is based on, relates to, or is in response to the exercise of its right of
association and right of free speech.
1. Baker Nicholson's access and sharing of client and solicitation data are
""communications"" under the TCPA.
As claimed by Pohl, the alleged access and download of electronic client information required
a ""communication."" 2 CR 894-97. That is, receiving, sending, and downloading the electronic
data required ""the making or submitting of a statement or document in any form or medium,
including oral, visual, written, audiovisual, or electronic."" See TEX. CIV. PRAC. & REM. CODE
§ 27.001(1); see also Morgan v. Clements Fluids S. Tex., Ltd., No. 12-18-00055-CV,
S.W.3d , 2018 WL 5796994, at *3 (Tex. App.-Tyler Nov. 5, 2018, no pet.) (indicating that
defendants' sharing and use [*29] of their former employers' trade secrets were TCPA
""communications""). Sharing the data with others, as alleged by Pohl, likewise involves
""communications"" as defined by the TCPA. See TEX. CIV. PRAC. & REM. CODE § 27.001(1);
Morgan, 2018 WL 5796994, at *3. Similarly, Pohl's allegations that Appellants ""conspired""
among themselves to misappropriate the data and use it to file barratry lawsuits would
necessarily involve ""communications."" See TEX. CIV. PRAC. & REM. CODE § 27.001(1); see
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2019 TX APP. CT. BRIEFS LEXIS 10876, *29
also Craig v. Tejas Promotions, LLC, 550 S.W.3d 287, 296-97 (Tex. App.-Austin 2018, pet. filed)
(recognizing that conspiring to misappropriate trade secrets involved a TCPA ""communication"").
2. Baker Nicholson's ""communications""-accessing and sharing client information-is an
exercise of its right to freely associate with others under the TCPA.
Baker Nicholson's ""communications"" were made by individuals who ""join[ed] together to
collectively express, promote, pursue, or defend common interests""-the common interest being
(i) exposing Pohl's unethical conduct, (ii) filing barratry claims against Pohl, and (iii) representing
clients in barratry litigation against Pohl. See TEX. CIV. PRAC. & REM. CODE § 27.001(2).
Pohl alleges the same in his own pleadings, i.e. Baker Nicholson [*30] engaged in the
""communications"" at issue for the purpose of joining with Kassab to help identify, pursue, and
advise Pohl's former clients. 2 CR 891 (alleging that Appellants joined together to
misappropriate Pohl's trade secrets ""for their own gain""); 2 CR 895 (claiming Baker Nicholson
and Favre ""sold Pohl's stolen confidential information"" to Kassab); 2 CR 896-98 (alleging that as
a result of this sale, Baker Nicholson and Kassab have successfully solicited Pohl's former
clients to bring barratry claims against Pohl); see Gaskamp v. WSP USA, Inc., No. 01-18-
00079-CV, 2018 WL 6695810, at *12 (Tex. App.-Houston [1st Dist.] Dec. 20, 2018, no pet. h.)
(concluding allegation that defendants induced parties, with whom plaintiff had contracts, ""to
reduce"" their business with the plaintiff and ""sharing [the plaintiff's] confidential, proprietary, and
trade secret information to interfere with these prospective contracts and business relationships
would necessarily involve communications as defined by the TCPA"").
Moreover, courts have found that the right of association under the TCPA is implicated by civil
conspiracy claims, as in this case. See Craig, 550 S.W.3d at 295-96; MVS Int'l Corp. v. Int'l
Advert. Sols., LLC, 545 S.W.3d 180, 194 (Tex. App.-El Paso 2017, no pet.) (explaining that as
the statute is written, conspiracy claims would [*31] fall under the TCPA's right of association.);
Elite Auto Body LLC v. Autocraft Bodywerks, Inc., 520 S.W.3d 191, 206 (Tex. App.-Austin 2017,
pet. dism'd); Backes v. Misko, 486 S.W.3d 7, 20 (Tex. App.-Dallas 2015, pet. denied).
Baker Nicholson, therefore, demonstrated that it was exercising its right to freely associate
when it accessed and shared the information with Kassab.
3. Baker Nicholson's ""communications"" are an exercise of its right to free speech
under the TCPA.
In addition to exercising its right of association, Baker Nicholson's ""communications"" constitute
an exercise of free speech. That is, the ""communications"" were ""made in connection with a
matter of public concern"" because the ""communications"" among Appellants and potential clients
were made in connection with Pohl's unlawful conduct. See TEX. CIV. PRAC. & REM. CODE §
27.001(7)(E); Abatecola v. 2 Savages Concrete Pumping, LLC, No. 14-17-00678-CV, 2018 WL
3118601, at *8 (Tex. App.-Houston [14th Dist.] 2018, pet. denied). Lawyer misconduct and
unethical legal services in the marketplace are matters of public concern. TEX. CIV. PRAC. &
REM. CODE § 27.001(7) (""Matter of public concern"" includes an issue related to: (A) health or
safety; (B) environmental, economic, or community well-being; (C) the government; (D) a public
official or public figure; or (E) a good, product, or service in the marketplace).
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2019 TX APP. CT. BRIEFS LEXIS 10876, *31
[*32] Texas courts uniformly agree that a lawyer's representation of his clients and the practice
of law constitute a matter of public concern. See Bacharach v. Doe, No. 14-14-00947-CV, 2016
WL 269958, at *3 (Tex. App.-Houston [14th Dist.] Jan. 21, 2016, no pet.); Daver v. Desai, 483
S.W.3d 668, 673 (Tex. App.-Houston [14th Dist.] 2015, no pet.) (holding that a lawyer's ability to
represent clients is a matter of public concern under the TCPA); Avila, 394 S.W.3d at 655
(holding that a communication about a lawyer's handling of cases is a matter of public concern
within the TCPA). Here, Appellants' ""communications"" concerned Pohl's representation of his
former clients, Pohl's abuse of his position as an attorney, and Kassab's potential representation
of the former clients for claims of barratry against Pohl. Under Texas law, the substance of these
""communications"" is a matter of public concern.
Pohl's claims against Baker Nicholson related to ""communications"" ""between individuals who
join[ed] together to collectively express, promote, pursue, or defend common interests"" or
""communications"" ""made in connection with a matter of public concern,"" which, respectively,
constitute the exercise of the right of association and the exercise of the right of free speech
under the TCPA. See TEX. CIV. PRAC. & REM. CODE §§ 27.001(2), (3), 27.003(a). Pohl's
claims related to Baker Nicholson's exercise of its rights of association and free speech, as
broadly defined [*33] by the TCPA. See Abatecola, 2018 WL 3118601, at *8.
Moreover, the alleged transfer and exchange of Pohl's purported trade secrets and proprietary
information required ""communications,"" or ""the making or submitting of a statement or document
in any form or medium, including oral, visual, written, audiovisual, or electronic."" See TEX. CIV.
PRAC. & REM. CODE § 27.001(1); 1 CR 4-6, 13-14. Similarly, allegations that Baker Nicholson
and others engaged in a scheme or conspired with each other to misappropriate Pohl's
purported trade secrets also necessarily involve ""communications."" See TEX. CIV. PRAC. &
REM. CODE § 27.001(1)-(2); see also Craig, 550 S.W.3d at 296-97 (determining that
conspiring to misappropriate trade secrets involved a TCPA communication); Morgan, 2018
WL 5796994, at *3 (indicating that defendants' sharing and use of their former employers' trade
secrets were TCPA ""communications""). Additionally, these were one of the listed matters of
public concern-a ""service in the marketplace""-because the ""communications"" related to Pohl's
legal services. See TEX. CIV. PRAC. & REM. CODE § 27.001(7)(E).
Accordingly, Pohl's claims related to Baker Nicholson's exercise of its right of free speech.
See Gaskamp, 2018 WL 6695810, at *12 (allegations [*34] that employees conspired together
to misappropriate employer's trade secrets and confidential information related to employees'
right of free speech because such claims ""would necessarily involve communications as defined
by the TCPA""). Baker Nicholson, therefore, met its initial burden to show that the TCPA applies
to Pohl's claims.
B. Baker Nicholson's ""communications"" are an exercise of the right to petition.
In addition to the exercise of its rights to freely associate and speak, Pohl's causes of action
are based on, relate to, or are in response to Baker Nicholson's exercise of its right to petition as
defined by the TCPA. The TCPA defines the ""[e]xercise of the right to petition"" as ""a
communication in or pertaining to"" a ""judicial proceeding"" as well as ""any other communication
that falls within the protection of the right to petition government under the Constitution of the
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2019 TX APP. CT. BRIEFS LEXIS 10876, *34
United States or the constitution of this state."" TEX. CIV. PRAC. & REM. CODE §
27.001(4)(A)(i).
Pohl claims that Baker Nicholson and others used the client data to identify, locate, and
represent clients in and file subsequent barratry lawsuits against Pohl. The transfer and sharing
of the data, [*35] as explained above, constitutes ""communications"" under the TPCA.
Furthermore, these ""communications"" pertain to the barratry lawsuits against Pohl and are
legally protected as a right to petition. See Cavin v. Abbott, 545 S.W.3d 47, 64 (Tex. App.-
Austin 2017, pet. denied) (noting this Court's recognition in Serafine I and Serafine II that filing
a lawsuit and transmitting documents related to lawsuit constitute an ""'exercise of the right to
petition' under the plain-meaning construction we are to give the definition's broad language""
and concluding that lawsuits and discovery subpoenas ""satisf[ied] the TCPA definition of the
'exercise of the right to petition'""); see also Porter-Garcia v. Travis Law Firm, P.C., 564 S.W.3d
75, 85 (Tex. App.-Houston [1st Dist.] 2018, pet. denied) (concluding TCPA protections
encompass ""legal action"" that is factually predicated upon or relates to alleged conduct that
would fall within the TCPA's definition of the exercise of the right to petition); Collins v. Collins,
No. 01-17-00817-CV, 2018 WL 1320841, at *12-13 (Tex. App.-Houston [1st Dist.] Mar. 15,
2018, pet. denied) (noting ex-wife's claims against administrator of exhusband's estate for fraud
and conversion based on alleged misrepresentation or nondisclosure of assets during divorce
were protected under the TCPA because deceased ""was exercising his right to petition when he
served the affidavit and inventory in [*36] the divorce"").
Because Pohl's claims are related to Baker Nicholson's right to petition as defined by the
TCPA, his claims should have been dismissed and the motion to dismiss should have been
granted.
C. The commercial speech exemption does not preclude dismissal of Pohl's claims.
In the trial court, Pohl raised the commercial speech exemption. Section 27.010(b) exempts
from the TCPA ""a legal action brought against a person primarily engaged in the business of
selling or leasing goods or services . . . or an insurance product, insurance services, or a
commercial transaction in which the intended audience is an actual or potential buyer or
customer."" TEX. CIV. PRAC. & REM. CODE § 27.010(b). Pohl did not fulfill his burden of
proving this exemption applies. See Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living,
Ltd., 416 S.W.3d 71, 89 (Tex. App.-Houston [1st Dist.] 2013, pet. denied).
Pohl was required to prove:
(1) The defendant was primarily engaged in the business of selling or leasing goods;
(2) The defendant made the statement or engaged in the conduct on which the claim is
based in the defendant's capacity as a seller or lessor of those goods or services;
(3) The statement or conduct at issue arose out of a commercial [*37] transaction involving
the kind of goods or services the defendant provides; and
(4) The intended audience of the statement or conduct were actual or potential customers
of the defendant for the kind of goods or services the defendant provides.
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2019 TX APP. CT. BRIEFS LEXIS 10876, *37
Castleman v. Internet Money, Ltd., 546 S.W.3d 684, 688 (Tex. 2018).
Pohl cannot meet one or more of the elements of Castleman .
First , Baker Nicholson is not engaged in the business of selling client, solicitation, or
marketing data. Baker Nicholson is a lawyer and in the business of providing legal services to
clients and selling legal services. 2 CR 868. Pohl does not even attempt to allege, let alone
prove, that Baker Nicholson was in the business of selling solicitation or marketing data to other
lawyers. 2 CR 893-96. Second , the data at issue is not the kind of good or service Baker
Nicholson generally provides in its legal practice. And the sharing of the data did not arise out of
a commercial transaction involving the kind of legal services Baker Nicholson generally
provides. Third , Pohl is not suing Baker Nicholson for the services it provided to the
plaintiffs in the barratry suits. Rather, Pohl's lawsuit is over the possession and [*38] use of the
client solicitation and marketing data. Pohl is suing Baker Nicholson for sharing the data, not for
legal services rendered. Finally , the commercial exception requires the intended audience
of the conduct out of which Pohl's claims arise to be ""actual or potential customers"" of Baker
Nicholson ""for the kind of goods or services"" that Baker Nicholson provides. Castleman, 546
S.W.3d at 688. The ""audience"" of the alleged conduct was Favre and Precision, from who Pohl
alleges Favre, Baker Nicholson, and Kassab purchased his confidential information and trade
secrets. See 1 CR 9; 2 CR 869. The exemption does not apply, and a seller of goods or
services may avail himself of the TCPA, ""when he speaks of other goods or services in the
marketplace."" Castleman, 546 S.W.3d at 689 (emphasis added). Baker Nicholson is not in the
business of purchasing marketing lists, and these were not usual clients. See Schimmel, 438
S.W.3d at 858.
The Fourteenth Court's opinion in Toth v. Sears Home Improvement Products, Inc. is
particularly instructive on the commercial speech exception in this case. 557 S.W.3d 142, 154-
55 (Tex. App.-Houston [14th Dist.] 2018, no pet.). In [*39] Toth, the court held that the
exception did not apply because the record did not include any indication that the defendant
contractor was a seller of Bostik, the particular product at issue in the challenged
communication. Id. Similarly, Baker Nicholson is not in the business of selling the particular
good at issue in this case-client and marketing data.
Pohl's cases are distinguishable and no longer good authority .
Pohl relies on two cases for his commercial speech exemption argument: Miller Weisbrod,
L.L.P. v. Llamas-Soforo, 511 S.W.3d 181 (Tex. App.-El Paso 2014, no pet.) and NCDR, L.L.C.
v. Mauze & Bagby, PLLC, 745 F.3d 742 (5th Cir. 2014). Pohl's reliance on Miller Weisbrod and
Mauze is misplaced because both cases involved claims related to advertisements. Pohl is not
suing Baker Nicholson for soliciting clients; he is suing for alleged conversion and theft of trade
secrets. 2 CR 890-903; see also Grant v. Pivot Tech. Sols., Ltd., 556 S.W.3d 865, 888-89 (Tex.
App.-Austin 2018, pet. filed) (exception inapplicable because while the alleged conduct at issue-
a breach of a purchase agreement-arose out of the agreement, the plaintiff failed to show that
the agreement involved computer-related services like the defendant provides).
Specifically, Miller Weisbrod involved a lawsuit for slander [*40] and defamation against a
law firm by an ophthalmologist contending television commercials that encouraged former
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2019 TX APP. CT. BRIEFS LEXIS 10876, *40
patients of ophthalmologist to contact the law firm if they were left blind by treatment. 511
S.W.3d at 183-84. The law firm moved to dismiss pursuant to the TCPA and the ophthalmologist
claimed the commercial speech exception. Id. at 184. The trial court denied the motion to
dismiss and the law firm appealed. Id. The court of appeals affirmed, recognizing that the
ophthalmologist's claims of slander arose out of the advertisements, which were commercial
speech excepted from the TCPA. Id. at 191. The facts in this appeal are not remotely similar to
those in Miller Weisbrod.
Mauze is equally inapplicable. In Mauze, based on the law firm's advertisements and website,
the dental clinics sued the firm for false advertising, defamation, and business disparagement.
745 F.3d at 746. The law firm moved to dismiss pursuant to the TCPA. The district court denied
the motion based on the commercial speech exception. Id. at 746. The law firm appealed. Id.
The Fifth Circuit, making an Erie guess, held that the commercial speech exception applied
because the dental clinics' claims for false advertising and defamation arose out of the
advertisements [*41] themselves, which were directed to the law firm's potential customers.
See id. Mauze has no bearing on the applicability of the commercial speech exception in this
case.
Both Miller Weisbrod and Mauze were decided before Castleman-which, as discussed
above, is now the binding authority on this issue. And materially here, Pohl did not sue
Appellants for defamation or false advertising. The focus of the ""conduct"" at issue is the alleged
theft of confidential trade secrets. 1 CR 13-14. Thus, Pohl's cases do not establish that the
commercial speech exception applied to Pohl's claims against Baker Nicholson.
In sum , Baker Nicholson is not in the business of sharing and selling client data and Pohl's
suit does not arise out of Baker Nicholson's legal services rendered to clients, thus the
commercial speech exception does not exempt Pohl's lawsuit from the TCPA. See MacFarland
v. Le-Vel Brands LLC, No. 05-16-00672-CV, 2017 WL 1089684, at *9 (Tex. App.-Dallas Mar. 23,
2017, no pet.) (exemption not met because statement or conduct at issue was ""not about""
defendant's business of selling services).
II. No clear and specific evidence of conversion, misappropriation of trade secrets, or
civil conspiracy.
Because Baker Nicholson proved by a preponderance [*42] of the evidence that Pohl's claims
fall under the TCPA, the burden shifted to Pohl to establish a prima facie case on each element
of each of his causes of action by clear and specific evidence. See TEX. CIV. PRAC. & REM.
CODE § 27.005(c) (to avoid dismissal under the TCPA, the plaintiff must establish a prima facie
case for each element of the asserted claims by clear and specific evidence).
Although the TCPA does not define the phrase ""clear and specific evidence,"" the Texas
Supreme Court has held that the standard requires more than mere notice pleadings and that
the plaintiff ""must provide enough detail to show the factual basis for its claim."" D Magazine
Partners v. Rosenthal, 529 S.W.3d 429, 434 (Tex. 2017); Lipsky, 460 S.W.3d at 591. A ""prima
facie case"" refers to evidence sufficient as a matter of law to establish a given fact if it is not
rebutted or contradicted; stated another way, it is the ""minimum quantum of evidence necessary
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2019 TX APP. CT. BRIEFS LEXIS 10876, *42
to support a rational inference that the allegation of fact is true."" Lipsky, 460 S.W.3d at 590
(quoting In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 223 (Tex. 2004) (per curiam)).
Pohl sued Baker Nicholson for conversion, misappropriation of trade secrets under TUTSA,
and civil conspiracy, [*43] but presented no clear and specific evidence of each element of the
claims.
A. No clear and specific evidence of conversion.
Conversion is the unauthorized and unlawful assumption and exercise of dominion and control
over the personal property of another to the exclusion of, or inconsistent with, the owner's rights.
Freezia v. IS Storage Venture, LLC, 474 S.W.3d 379, 386 (Tex. App.-Houston [14th Dist.] 2015,
no pet.) (citing Waisath v. Lack's Stores, Inc., 474 S.W.2d 444, 446 (Tex. 1971)). The elements
of a conversion claim are: (1) the plaintiff owned or had possession of the property or
entitlement to possession; (2) the defendant unlawfully and without authorization assumed and
exercised control over the property to the exclusion of, or inconsistent with, the plaintiff's rights
as an owner; (3) the plaintiff demanded return of the property; and (4) the defendant refused to
return the property. Id. at 386-87; Stroud Prod., LLC v. Hosford, 405 S.W.3d 794, 811 (Tex.
App.-Houston [1st Dist.] 2013, pet. denied) (citing Khorshid, Inc. v. Christian, 257 S.W.3d 748,
759 (Tex. App.-Dallas 2008, no pet.)).
1. Pohl did not present clear and specific evidence of ownership.
The only evidence of ownership proves Pohl did not own the client files or other client and
marketing information. Pohl claims the converted property included his client's contact
information obtained from his attorney-client [*44] fee agreements and communications and
legal forms he had with his clients and prospective clients. 1 CR 8-9. Under Texas law, however,
this property was not owned by Pohl. 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.""); Hebisen v. State, 615 S.W.2d 866, 868 (Tex.
Civ. App.-Houston [1st Dist.] 1981, no writ) (same); In re McCann, 422 S.W.3d 701, 704 (Tex.
Crim. App. 2013) (""a client owns the contents of his or her file.""); see also Resolution Tr. Corp.
v. H, P.C., 128 F.R.D. 647, 650 (N.D. Tex. 1989) (client owns contents of his or her file because
an ""attorney is hired to represent the interests of his client, and every service provided by the
attorney, including the creation of legal memoranda and attorney's notes and the copying of
documents, is paid for by the client.""); TEX. DISCIPLINARY R. PROF'L CONDUCT 1.15(d).
Because Pohl is not the lawful owner of the client files, the conversion claim fails. See Bank of
Houston v. Thomas, No. B14-88-00140-CV, 1989 WL 131081, at *22 (Tex. Civ. App.-Houston
[14th Dist.] Nov. 2, 1989, writ denied) (no conversion ""as a matter of law"" when property was not
owned by plaintiff); 3-C Oil Co. v. Modesta P'ship, 668 S.W.2d 741, 753 (Tex. App.-Austin
1984, no pet.) (""If [plaintiffs] did not own the equipment, no conversion took place, as to them."").
Moreover, the marketing lists and client information was the property [*45] of Precision, not
Pohl. 1 CR 640-42. Favre testified that Precision ""solicited many of the marketing contacts
(individuals and businesses) on these lists for representation."" 1 CR 641. Favre testified that the
""marketing lists"" contained the names of thousands of persons who eventually became Pohl's
former clients and the names of individuals whom Pohl solicited for representation. Id. The
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2019 TX APP. CT. BRIEFS LEXIS 10876, *45
evidence in the record establishes that the information Pohl claims are the trade secrets and
property converted by Baker Nicholson ""were and are solely the work product and property of
Precision, developed during the normal course of its marketing business."" Id.
And Pohl's unsworn allegations of ownership are not clear and specific evidence. See Wade
v. Methodist Hosp., No. 01-02-01272-CV, 2004 WL 2749565, at *5 (Tex. App.-Houston [1st
Dist.] Dec. 2, 2004, no pet. ) (""Unsworn pleadings made by Wade's counsel are not evidence."").
Thus, the petition and amended petition are not clear and specific evidence of any relevant fact.
Moreover, Pohl's conclusory, self-serving affidavit is not clear and specific evidence because it
was controverted by other competent evidence, including Favre's testimony cited above. See
Lipsky, 460 S.W.3d at 590 (""prima facie case"" refers to evidence sufficient as a matter of [*46]
law to establish a given fact if it is not rebutted or contradicted).
2. Pohl did not present clear and specific evidence of unlawful possession or control.
Because Baker Nicholson accessed the information from Precision legally, Pohl did not
establish that Baker Nicholson ""unlawfully and without authorization"" assumed control of the
property. Baker Nicholson obtained the names and addresses of the victims of Pohl's barratry
from Precision, who was the owner of this property, not Pohl. 1 CR 110, 640-42. As explained
above, client files were not the property of Pohl.
3. No clear and specific evidence that Baker Nicholson converted tangible property.
Texas courts have consistently held that a tort action for conversion under Texas law is limited
to tangible property. See Robin Singh Educ. Servs., Inc. v. Test Masters Educ. Servs., Inc.,
401 S.W.3d 95, 98 (Tex. App.-Houston [14th Dist. 2011, no pet.); Express One Intern., Inc. v.
Steinbeck, 53 S.W.3d 895, 901 (Tex. App.-Dallas 2001, no pet.) (""Texas law has never
recognized a cause of action for conversion of intangible property except in cases where an
underlying intangible right has been merged into a document and that document has been
converted.""); see also Quantlab Techs. Ltd. (BVI) v. Godlevsky, 719 F. Supp. 2d 766, 778
(S.D. Tex. 2010) (dismissing conversion claim because the complaint merely [*47] alleged the
taking of ""electronically-stored files,""); WesternGeco v. Ion Geophysical Corp., 2009 WL
3497123, at *3 (S.D. Tex. 2009) (dismissing a conversion claim for confidential information and
technology because they did not merge into a physical prototype).
Pohl alleges in unsworn pleadings conversion of electronic data, computers, and physical
documents. 1 CR 9; 2 CR 1065. However, Pohl did not present clear and specific
evidence that Baker Nicholson converted any physical document, hard drive, or other tangible
property with the electronic data. The evidence in the record only suggests Baker Nicholson
accessed or possessed electronic data-no document, hard drive, or other tangible property.
There is no clear and specific evidence that Baker Nicholson converted tangible property. Pohl's
allegation in his petition that Baker Nicholson converted a computer or other tangible property is
not evidence of the same.
Baker Nicholson's alleged access of the electronic client data cannot support a claim for
conversion against Baker Nicholson. Without clear and specific evidence of conversion of
tangible property, the trial court abused its discretion in denying Baker Nicholson's TCPA motion
to dismiss. [*48]
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2019 TX APP. CT. BRIEFS LEXIS 10876, *48
B. No clear and specific evidence of statutory misappropriation of trade secrets.
Likewise, Pohl did not present clear and specific evidence of misappropriation of trade secrets.
The elements of misappropriation of trade secrets under TUTSA are (1) ownership of a trade
secret; (2) misappropriation of the trade secret; and (3) an injury, if the plaintiff is seeking
damages. TEX. CIV. PRAC. & REM. CODE §§ 134A.002(1), (3), (6), 134A.004(a). As explained
above, Pohl failed to provide clear and specific proof of ownership. The client files belong to the
client, not Pohl; and the marketing list and client information belonged to Precision. 1 CR 110,
640-42. Pohl never owned the client files, marketing list, or other client information. Moreover,
there is no unlawful misappropriation because Baker Nicholson accessed the information from
Precision legally. 1 CR 110, 640-42.
Furthermore, the client files and marketing list are not trade secrets under TUTSA. In defining
what constitutes a trade secret, TUTSA provides:
Information subject to trade secret protection includes formulas, patterns, compilations,
programs, devices, methods, techniques, processes, financial data, and lists of actual or
potential customers or suppliers [*49] that (1) the plaintiff has taken reasonable efforts to
keep secret and (2) has actual or potential independent economic value to third parties
because it is not generally known and not readily ascertainable by proper means.
TEX. CIV. PRAC. & REM. CODE § 134A.002(6). In determining whether information
constitutes a trade secret, courts consider the following factors:
(1) The extent to which the information is known outside the claimant's business;
(2) The extent to which the information is known by employees and others involved in the
claimant's business;
(3) The extent of the measures taken by the claimant to guard the secrecy of the
information;
(4) The value of the information to the claimant and its competitors;
(5) The amount of effort or money expended by the claimant in developing the information;
and
(6) The ease or difficulty with which the information could be properly acquired or
duplicated by others.
In re Bass, 133 S.W.3d 735, 739 (Tex. 2003).
Pohl generally asserts in his declaration that he ""took substantial measures to maintain the
materials and information"" at issue as ""confidential,"" that he ""protected them as trade secrets,""
and that he kept the physical copies ""under lock and [*50] key."" 2 CR 1394-95.
However, Pohl did not explain the specific ""measures"" he took to maintain the confidentiality of
the electronic information or the duplicate copies. This lack of evidence is particularly important
because Precision gathered, created, and maintained custody of information. Yet Pohl did not
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2019 TX APP. CT. BRIEFS LEXIS 10876, *50
articulate any parameters he established to ensure that Precision did not share the information.
Pohl did not detail the amount of money he invested in keeping this information confidential.
Pohl's conclusory allegations did not establish a prima facie case that the information enjoys
""trade secret"" status. See Game Sys. v. Forbes Hutton Leasing, Inc., No. 02-09-00051-CV,
2011 WL 2119672, at *15 (Tex. App.-Fort Worth, May 26, 2011, no pet.) (statement that the
software ""constitutes a trade secret"" was conclusory and not proper evidence).
In addition, the names and addresses of Pohl's former clients, along with their individual fee
agreements, are not confidential. ""[T]he attorney-client privilege certainly does not encompass
such non-confidential matters as the terms and conditions of an attorney's employment and the
purpose for which an attorney has been engaged."" Borden, Inc. v. Valdez, 773 S.W.3d 718,
720 (Tex. App.-Corpus Christi 1989, no writ); Jim Walter Homes, Inc. v. Foster, 592 S.W.2d
749, 752 (Tex. Civ. App.-Eastland 1979, no writ) (fee agreement is not privileged or [*51]
confidential because it is a matter collateral to the professional relationship and has no bearing
on the merits of the matter on which the attorney was hired).
Notably, Pohl and Williamson jointly represented to the court in the Mississippi Litigation that,
""It is immaterial who had the right to possess the list or files or for that matter who may be the
owner or creator of the list or files."" 2 CR 826. Pohl really did not care what happened to the
client lists.
In May 2016, Pohl amended his answer in the Mississippi Litigation to assert that Precision had
joined a conspiracy with Favre to convert Pohl's property. 3 S. CR 195-96. But by this point,
Pohl had realized that he might be the subject of several barratry claims, and he suddenly
decided that he needed to assert ownership over the client lists and other information to protect
himself. The fact that he was never in possession of this information, and that he waited three
years to claim it belonged to him, dispels any allegation of ownership.
In contrast, Precision presented affidavit testimony from Favre that Precision created the
documents and client lists and maintained possession of them since their creation, and that this
information belonged to Precision as its work product. 2 CR 821, 842. Pohl failed to provide
clear and specific proof regarding the essential elements of his statutory trade secrets claim;
thus, the trial court abused its discretion in implicitly denying Baker Nicholson's motion to
dismiss this lawsuit pursuant to the TCPA.
C. No clear and specific evidence of civil conspiracy.
The elements of civil conspiracy are: (1) two or more persons; (2) an object to be
accomplished; (3) a meeting of the minds on the object or course of action; (4) one [*52] or
more unlawful, overt acts; and (5) damages as a proximate result. Agar Corp., Inc. v. Electro
Circuits Int'l, LLC, No. 17-0630, 2019 WL 1495211, at *4-5 (Tex. Apr. 5, 2019); Tri v. J.T.T.,
162 S.W.3d 552, 556 (Tex. 2005). Pohl alleges that all Appellants ""entered into a combination
with the object of unlawfully misappropriating Pohl's trade secrets,"" ""stealing Pohl's confidential
information,"" and using it for ""[Appellants'] own gain."" 2 CR 891. As the Texas Supreme Court
has explained, ""[w]e have repeatedly called civil conspiracy a ""derivative tort,"" meaning it
depends on some underlying tort or other illegal act . . . Our use of the word ""derivative"" in this
context means a civil conspiracy claim is connected to the underlying tort and survives or fails
Page 23 of 26
2019 TX APP. CT. BRIEFS LEXIS 10876, *52
alongside it. Agar Corp., Inc., 2019 WL 1495211 at *3; Tilton v. Marshall, 925 S.W.2d 672,
681 (Tex. 1996) (orig. proceeding). Because Pohl failed to establish a prima facie case of
conversion or misappropriation of trade secrets, he likewise cannot establish a prima facie case
for each element of his civil conspiracy claim.
D. Pohl's claims are barred as a matter of law by the applicable statute of limitations.
The statute of limitations for conversion is two years from the date the property is allegedly
taken. TEX. CIV. PRAC. & REM. CODE § 16.003(a); Burns [*53] v. Rochon, 190 S.W.3d 263,
271 (Tex. App.-Houston [1st Dist.] 2006, no pet.). The statute of limitations for civil conspiracy
also is two years. Agar Corp., Inc., 2019 WL 1495211 at *6-7 (""Because a civil conspiracy
claim is derivative of an underlying tort, the claim accrues when the underlying tort accrues."");
Mayes v. Stewart, 316 S.W.3d 715, 719 (Tex. App.-Houston [14th Dist.] 2010, no pet.). The
statute of limitations for misappropriation of trade secrets is three years. TEX. CIV. PRAC. &
REM. CODE § 16.010(a). Baker Nicholson established by a preponderance of the evidence that
Pohl's claims are barred by the statute of limitations. See TEX. CIV. PRAC. & REM. CODE §
27.005(d) (if movant proves defense to plaintiff's claim, trial court shall dismiss the action
""[n]otwithstanding the provisions of Subsection (c)"").
1. Limitations expired on Pohl's conversion claim no later than 2016; this lawsuit was
filed August 28, 2018.
Pohl alleged that the conversion occurred ""at a time as yet unknown but believed to have been
no later than the summer of 2013."" 3 S. CR 195-96. Pohl's sworn testimony proves he knew
about his conversion cause of action five years before he filed the underlying lawsuit. Pohl also
testified in another proceeding that in 2014, the ""barratry lawyer's team"" (allegedly consisting of
Baker Nicholson, Kassab, and Montague) broke into Pohl's office in Gulfport Mississippi and
stole the information and passwords. 1 CR 646-48. And in May 2015, Pohl sent Precision a
letter, asking that Precision return the original and copies of fee contracts with his BP clients. 3
S. CR 152.
Pohl testified that although he knew the conduct occurred in 2014, he did not file a civil or
criminal case against Kassab or his ""crew"" because he ""wanted to spend time to reflect on it
before taking action [and] didn't want to do anything that was precipitous."" 1 CR 650-654. When
asked why he did not report Appellants' alleged conduct to any authority or take any action
against them, Pohl stated [*54] he had been ""preoccupied"" and simply ""neglected to do that."" 1
CR 654.
""The statute of limitations begins to run when a party has actual knowledge of a wrongful
injury."" Exxon Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194, 207 (Tex. 2011). ""Once a
claimant learns of a wrongful injury, the statute of limitations begins to run even if the claimant
does not yet know the specific cause of the injury; the party responsible for it; the full extent of it;
or the chances of avoiding it."" Id. (internal quotations omitted). Pohl admits that he knew of his
potential claims against Appellants in 2014, at the latest, but ""neglected"" to file suit against
Baker Nicholson until August 28, 2018. 1 CR 4-14. Accordingly, all of Pohl's claims against
Baker Nicholson were filed several years after discovery, and thus, are barred by limitations.
See TEX. CIV. PRAC. & REM. CODE §§ 16.003, 16.010.
Page 24 of 26
2019 TX APP. CT. BRIEFS LEXIS 10876, *54
2. Limitations expired on Pohl's TUTSA claim no later than 2017; this lawsuit was filed
August 28, 2018.
Pohl also failed to file his claim for TUTSA violations within the three-year limitations period. As
explained above, Pohl was on notice by 2014 that he had a possible cause of action against the
Baker Nicholson for misappropriation [*55] of trade secrets. Pohl's claim for misappropriation of
trade secrets expired in 2017, at the latest. TEX. CIV. PRAC. & REM. CODE § 16.010. Because
Pohl did not file the instant suit until August 28, 2018, his claim for TUTSA violations is time-
barred.
3. Limitations on Pohl's civil conspiracy claim expired with the underlying tort claims'
limitations period.
Because civil conspiracy is a derivative tort that depends on participation in some underlying
tort, it shares the same statute of limitations as the underlying tort. Agar Corp., Inc., 2019 WL
1495211 at *5-6. Pohl's civil conspiracy claims against Baker Nicholson are based on their
alleged conversion and misappropriation of allegedly confidential and trade secret information,
which are barred by limitations. His claims for civil conspiracy are time-barred as well.
E. Pohl's claims are barred as a matter of law by the doctrine of judicial immunity.
It is well established that a statement made in the course of a judicial or quasi-judicial
proceeding cannot serve as the basis for a civil action. McIntyre v. Wilson, 50 S.W.3d 674, 683
(Tex. App.-Dallas 2001, pet. denied); Hernandez v. Hayes, 931 S.W.2d 648, 654 (Tex. App.-
San Antonio 1996, writ denied); see, e.g., Perdue, Brackett, Flores, Utt & Burns v. Linebarger,
Goggan, Blair, Sampson & Meeks, L.L.P. [*56] , 291 S.W.3d 448, 455 (Tex. App.-Fort Worth
2009, no pet.) (statement cannot serve as basis for defamation action); Montemayor v. Ortiz,
208 S.W.3d 627, 652 (Tex. App.-Corpus Christi 2006, pet. denied) (same); Daystar
Residential, Inc. v. Collmer, 176 S.W.3d 24, 27 (Tex. App.-Houston [1st Dist.] 2004, pet. denied)
(same).
The privilege applies to an out-of-court communication made by an attorney as long as the
communication has some relationship to the proceedings and is in furtherance of the attorney's
representation. Russell v. Clark, 620 S.W.2d 865, 868 (Tex. App.-Dallas 1981, writ ref'd n.r.e.).
The privilege is absolute even if the testimony is false and uttered or published with express
malice. Hurlbut v. GulfAtl. Life Ins., 749 S.W.2d 762, 768 (Tex. 1987); Perdue, Brackett,
Flores, Utt & Burns, 291 S.W3d at 455; see Regan v. Guardian Life Ins., 166 S.W.2d 909, 912
(Tex. 1942) (forged affidavit); McIntyre, 50 S.W.3d at 683 (false testimony).
The trial court erred by failing to dismiss Pohl's claims for conversion, misappropriation of trade
secrets, and civil conspiracy against Baker Nicholson because they only arise but for the
litigation Baker Nicholson assisted in pursuing against Pohl. TEX. CIV. PRAC. & REM. CODE §
27.009(a).
III. Baker Nicholson is entitled to attorney's fees under the TCPA.
Because Pohl's claims are barred under the TCPA, Baker Nicholson is entitled to attorney's
fees in defending the claims. Attorney's fees are mandatory and should be awarded to
Page 25 of 26
2019 TX APP. CT. BRIEFS LEXIS 10876, *56
Baker [*57] Nicholson. The TCPA requires the trial court to award court costs, reasonable
attorney's fees, and other expenses to the movant upon dismissal of ""a legal action"" under the
TCPA. TEX. CIV. PRAC. & REM. CODE § 27.009(a)(1).
The trial court did not award Baker Nicholson any fees because the motion to dismiss was
implicitly denied. Because Pohl's claim falls under the TCPA and Pohl failed to meet his burden
of proving, by clear and specific evidence, a prima facie case on his claims against Baker
Nicholson, the case should be remanded so that the trial court may exercise its discretion and
determine the proper amount of fees, costs, and expenses to award Baker Nicholson. See
Rosenthal, 529 S.W.3d at 441-42; Serafine v. Blunt, 466 S.W.3d 352, 364 (Tex. App.-Austin
2015, no pet.).
CONCLUSION & PRAYER
The TCPA applies to the communications that form the basis of the underlying lawsuit. Pohl
failed to establish a prima facie case as to each element of his conversion, TUTSA, and civil
conspiracy claims against Appellants Tina Nicholson and Baker Nicholson, LLP d/b/a Baker
Nicholson Law Firm. Even if Pohl did present clear and specific evidence, these claims are
barred by limitations and judicial immunity. The trial court therefore [*58] erred in implicitly
denying the motion to dismiss filed by Appellants Tina Nicholson and Baker Nicholson, LLP
d/b/a Baker Nicholson Law Firm.
Tina Nicholson and Baker Nicholson, LLP d/b/a Baker Nicholson Law Firm request that this
Court reverse the trial court's implicit denial their Motion to Dismiss and enter judgment granting
the Motion to Dismiss as to Pohl's claims for conversion, violations of the TUTSA, and civil
conspiracy. Appellants further request that this case be remanded to the trial court for a hearing
on attorney's fees and sanctions, which are mandatory under the TCPA.
Respectfully submitted,
/s/ Jessica Z. Barger
Jessica Z. Barger
State Bar No. 24032706
barger@wrightclosebarger.com
E. Marie Jamison
State Bar No. 24044647
jamison@wrightclosebarger.com
WRIGHT CLOSE & BARGER, LLP
One Riverway, Suite 2200
Houston, Texas 77056
(713) 572-4321
(713) 572-4320 (facsimile)
Chris C. Pappas
State Bar No. 15454300
Page 26 of 26
2019 TX APP. CT. BRIEFS LEXIS 10876, *58
cpappas@krcl.com
Andrew J. Sarne
asarne@krcl.com
State Bar No. 00797380
Kimberly C. Clark
State Bar No. 24066435
kclark@krcl.com
KANE RUSSELL COLEMAN LOGAN PC
5051 Westheimer Road, Suite 1000
Houston, [*59] Texas 77056
(713) 425-7400
(713) 425-7700 (facsimile)
Counsel for Appellants Tina Nicholson and
Baker Nicholson, LLP d/b/a Baker
Nicholson Law Firm
CERTIFICATE OF COMPLIANCE
I hereby certify that this document was generated by a computer using Microsoft Word which
indicates that the total word count of this document 10,890 and that it is in compliance with TEX.
R. APP. P. 9.4(i)(D)
/s/ Jessica Z. Barger
Jessica Z. Barger
CERTIFICATE OF SERVICE
I certify that on May 13, 2019, a true and correct copy of the foregoing instrument was served
on all counsel of record consistent with TEX. R. CIV. P. 21a.
/s/ Jessica Z. Barger
Jessica Z. Barger
[SEE APPENDIX IN ORIGINAL]
End of Document"
9,2019-04-25,2019-04-25 BRF Favre-Appellants-Brief-TCPA-Appeal FILED,appellate,2019-04-25_BRF_Favre-Appellants-Brief-TCPA-Appeal_FILED.pdf,"Kassab v. Michael A. Pohl & Law Office of Michael A. Pohl
CASE NO. 01-18-01143-CV
COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON
April 25, 2019
Reporter
2019 TX APP. CT. BRIEFS LEXIS 10777 *
Lance Christopher Kassab, Lance Christopher Kassab, P.C. D/B/A The Kasab Law Firm, Scott
Favre, Scott M. Favre Public Adjuster, LLC And Precision Marketing Group, LLC, Appellants v.
Michael A. Pohl And Law Office of Michael A. Pohl, PLLC, Appellees
Type: Brief
Prior History: On Appeal from the 189th District Court of Harris County, Texas Cause No.
2018-58419.
Counsel
Todd Taylor, SBN 00785087, Jocelyn A. Holland, SBN 24059965, JOHANSON &FAIRLESS,
LLP, Sugar Land, TX, ATTORNEYS FOR APPELLANTS SCOTT FAVRE, SCOTT M. FAVRE
PUBLIC ADJUSTER, LLC AND PRECISION MARKETING GROUP, LLC.
Appellants/Defendants: Lance Christopher Kassab, Lance Christopher Kassab, P.C. D/B/A
The Kasab Law Firm, Trial & Appellate Counsel: Lance Christopher Kassab, SBN 00794070,
David Eric Kassab, SBN 24071351, THE KASSAB LAW FIRM, Houston, Texas.
Appellants/Defendants: Tina Nicholson and Baker Nicholson, LLP d/b/a Baker Nicholson Law
Firm, Trial & Appellate Counsel: Jessica Z. Barger, SBN 24032706, E. Marie Jamison, SBN
24044647, WRIGHT CLOSE & BARGER, LLP, Houston, Texas And Chris C. Pappas, SBN
15454300, Andrew J. Sarne, SBN 00797380, Kimberly C. Clark, SBN 24066435, KANE
RUSSELL COLEMAN LOGAN PC, Houston, Texas.
Appellees/Plaintiffs Michael A. Pohl And Law Office Of Michael A. Pohl, PLLC, Trial &
Appellate Counsel: Jean C. Frizzell, SBN. 07484650, REYNOLDS FRIZZELL LLP, Houston,
Texas.
Title
APPELLANTS' BRIEF
Text
IDENTITY OF PARTIES AND COUNSEL [*1]
Page 2 of 21
2019 TX APP. CT. BRIEFS LEXIS 10777, *1
Appellants/Defendants: Scott Favre, Scott M. Favre Public Adjuster, LLC And Precision
Marketing Group, LLC
Trial & Appellate Counsel: Todd Taylor, SBN 00785087
Jocelyn A. Holland, SBN 24059965
JOHANSON & FAIRLESS, LLP
1456 First Colony Blvd.
Sugar Land, TX 77479
Appellants/Defendants: Lance Christopher Kassab, Lance Christopher Kassab, P.C.
D/B/A The Kasab Law Firm
Trial & Appellate Counsel: Lance Christopher Kassab, SBN 00794070
David Eric Kassab, SBN 24071351
THE KASSAB LAW FIRM
1214 Elgin Street
Houston, Texas 77004
Appellants/Defendants: Tina Nicholson and Baker Nicholson, LLP d/b/a Baker
Nicholson Law Firm
Trial & Appellate Counsel: Jessica Z. Barger, SBN 24032706
E. Marie Jamison, SBN 24044647
WRIGHT CLOSE & BARGER, LLP
One Riverway, Suite 2200
Houston, Texas 77056
And
Chris C. Pappas, SBN 15454300
Andrew J. Sarne, SBN 00797380
Kimberly C. Clark, SBN 24066435
KANE RUSSELL COLEMAN LOGAN PC
5051 Westheimer Road, Suite 1000
Houston, Texas 77056
Appellees/Plaintiffs Michael A. Pohl And Law Office Of
Page 3 of 21
2019 TX APP. CT. BRIEFS LEXIS 10777, *1
Michael A. Pohl, PLLC
Jean C. Frizzell, SBN. 07484650 [*2]
Trial & Appellate Counsel: REYNOLDS FRIZZELL LLP
1100 Louisiana St., Suite 3500
Houston, Texas 77002
STATEMENT OF THE CASE
Nature of the Case : This is an interlocutory appeal from the denial of a Motion to Dismiss
pursuant to Chapter 27.001 et al of the Texas Civil Practice & Remedies Code. Appellees,
Michael A. Pohl and the Law Office Of Michael A. Pohl, PLLC (""Pohl"") hired Appellant Precision
Marketing Group, LLC (""Precision"") to illegally solicit clients who had claims arising from the
Deepwater Horizon Oil Spill and other personal injuries. Pohl filed the instant lawsuit in
retaliation after several of Pohl's former clients retained Appellants Lance Christopher Kassab,
and Lance Christopher Kassab, P.C. D/B/A The Kassab Law Firm (""Kassab"") to represent them
in bringing claims against Pohl for barratry.
Trial Court : Cause No. 2018-58419, 189th District Court of Galveston County, Texas,
Honorable Scott Dollinger, presiding.
Trial Court Disposition : Appellants Scott Favre, Scott M. Favre Public Adjuster, LLC and
Precision Marketing Group, LLC moved to dismiss under Chapter 27 of the Texas Civil Practice
& Remedies Code. 3 CR 136. The trial court denied the motion after a hearing, and
Appellants [*3] timely sought interlocutory review of that order. App. E, F; SUPP CR 1
STATEMENT OF JURISDICTION
This court has jurisdiction over this appeal because it is an interlocutory appeal permitted
under Texas Civil Practice & Remedies Code sections 27.008(b) and 51.014(12).
STATEMENT REGARDING ORAL ARGUMENT
This Court should grant oral argument as it would assist the Court in resolving the issues
presented by this appeal. This background facts involve multiple parties, many of which are not
part of the instant lawsuit, as well as proceedings in other jurisdictions. In addition, given the
recent increase in litigation under the Texas Citizens Participation Act, oral argument will aid the
Court in rendering a judgment and opinion that will guide future claims under this statute.
ISSUES PRESENTED
1 Appellants have asked the district clerk to supplement the record with the documents contained in the Appendix.
Page 4 of 21
2019 TX APP. CT. BRIEFS LEXIS 10777, *3
I. Did the Trial Court Err in Denying the Favre Appellants' Motion to Dismiss Pursuant to
Chapter 27 of the Texas Civil Practice & Remedies Code when:
A. The Favre Appellants Carried their Burden of Proof by Showing that Pohl's Claims
Are Related to the Favre [*4] Appellants Exercise of their Protected Rights;
B. Pohl Failed to Carry His Burden of Establishing by Clear and Specific Evidence a
Prima Facie Case for Each Essential Element of His Causes of Action;
C. Pohl Failed to Establish that the Commercial Speech Exemption Applies; and
D. The Favre Appellants Established that Pohl's Claims Are Barred by Limitations?
STATEMENT OF FACTS
Appellee Michael A. Pohl (""Pohl"") filed the instant lawsuit in retaliation to being sued by
hundreds of his former clients for committing barratry.
A. Pohl Contracts with the Founders of Precision Marketing Group to Engage in Barratry.
The story in this case begins in 2012, when Appellee Michael A. Pohl (""Pohl"") entered a joint
venture (""the Joint Venture"") with Jimmy Williamson (""Williamson""). 2 The purpose of the Joint
Venture was to find, sign up, and represent persons with claims pertaining to the BP Deepwater
Horizon Oil Spill. 1 CR 120-21.
Pohl, through the Joint Venture, contracted with Scott Walker, Steve Seymour, and Kirk Ladner
to retain [*5] clients with economic loss claims arising from the BP Deepwater Horizon Oil Spill,
as well as automobile accidents and other personal injury claims. 1 CR 122, 127, 130-34. The
Joint Venture promised to pay Walker, Seymour and Ladner a percentage of the attorney's fees
generated by the clients they signed up. 1 CR 123, 126, 128-29, 134. Walker, Seymour and
Ladner eventually formed Appellant Precision Marketing Group, LLC (""Precision"") to solicit
clients for the Pohl and Williamson. 1 CR 132-42.
Walker, Seymour and Ladner's solicitation involved blatant barratry. 1 CR 178 (p.149:6-11).
Walker testified that he, Ladner, or someone working for them would go to the victims of the
auto accident to ""do marketing"" by letting them know ""there were attorneys [who] could help."" 1
CR 185. In exchange, these runners- whoever visited the victims-were paid between $ 2,500
and $ 5,000 to solicit each client. 1 CR 192-193. These payments flowed from Pohl through his
wife's wholly owned company, ""Helping Hands Financing,"" to Precision, to each individual
runner. 1 CR 194-201. Walker would simply submit to Pohl the amount that Precision had paid
its runners and Pohl would reimburse Precision. 1 CR 202.
One of the runners, Magdalena Santana (""Santana""), testified that Pohl sent her on
""dozens [*6] and dozens of car wreck cases all over the country."" 1 CR 208. Pohl would email
Santana the link of news coverage depicting the accident and ask her ""to go to the victim or the
victim's family and try to get them to sign up with him."" Id. Pohl offered to pay Santana ""$ 5,000
2 Pohl and Williamson filed motions to dismiss in the Mississippi Litigation on grounds that they did not form a joint venture. 1 CR
310-11. The trial court denied those motions. 1 CR 311-13.
Page 5 of 21
2019 TX APP. CT. BRIEFS LEXIS 10777, *6
per case that [she] signed, plus a percentage of his attorney's fees."" 1 CR 209. Santana was
advised by Pohl to ""be persistent even if the family ... rejected [her]."" Id. Pohl also instructed
Santana to ""approach the victims and their families while they were vulnerable, in the
emergency room, their hospital rooms or at the funerals."" Id. Pohl further advised Santana that
minorities ""were especially vulnerable since they tended not to know that the law prohibited
barratry."" Id. According to Pohl, they ""were easier to sign up."" Id.
Pohl would pay Santana ""money to give to the victims or their families"" but ""only if they agreed
to sign a Pohl representation contract."" 1 CR 208. Pohl advised Santana that the money was a
""foot in the door"" but instructed Santana not to mention that she was there on behalf of a lawyer
""until after they agreed to take the money."" 1 CR 210-11. ""If the client agreed to hire [*7] Pohl,
then [Santana] was to have the client sign a 'Helping Hands' contract."" Id. Pohl would then give
Santana the money to pay the client ""from his own Helping Hands company."" Id. When
Santana questioned this, Pohl told Santana that it ""was illegal for him to pay [her] directly for
cases, and that's why the money had to go through some company."" 1 CR 210. This is false; it
was illegal either way. See Tex. Pen. Code § 38.12.
Another runner, Kenneth Talley (""Talley"") similarly testified to receiving a $ 1,400 fee plus
expenses for each automobile accident case he solicited. 1 CR 28-88. He was paid by Pohl,
through Walker and Precision. Id. Talley testified that both he and Pohl knew what they were
doing was illegal. 1 CR 93-94.
In December 2013, the Pohl and Williamson decided to terminate their marketing efforts, and
they instructed Walker, Seymour and Ladner to close up the Precision office. 1 CR 147. By that
point, Precision had signed up more than 10,000 viable claims for the Pohl/Williamson Joint
Venture that were collectively worth more than $ 600 million. 1 CR 147.
B. Walker, Seymour, Ladner and Precision File Suit Against Pohl in Mississippi Federal
Court for [*8] Unpaid Fees.
Pohl never paid Walker, Seymour or Ladner their share of the attorney's fees for the clients
they signed up, and on October 18, 2014, Walker, Seymour and Ladner, doing business as
Precision, sued Pohl and Williamson in the Southern District of Mississippi, Cause No. 14-cv-
381-KS-JCG, styled Scott Walker, et al. v. Michael A. Pohl, et al. (the ""Mississippi Litigation""). 1
CR 78, 153. Appellant Tina Nicholson of Baker Nicholson, LLP represented Precision (and later
Scott Favre as well) in that lawsuit. Walker, Seymour, Ladner, and Precision claimed that they
had conducted marketing efforts to obtain personal injury clients for Pohl, that Pohl had received
attorney's fees from the clients they signed up, and that Pohl had refused to pay them the
agreed share of his fees. 1 CR 78, 156-64.
On May 15, 2015, after the Mississippi Litigation had been pending for several months, Walker,
Seymour and Ladner received a letter from Pohl claiming that Precision was in possession of
""original contracts and copies of original contracts"" between Pohl and his BP clients, and that
belonged to Pohl. 3 CR 152. Precision asserted its ownership of the information refused to
provide the turnover to the contracts, and Pohl did [*9] not follow up on this claim for another
year. 3 CR 137.
Page 6 of 21
2019 TX APP. CT. BRIEFS LEXIS 10777, *9
In May 2016, Appellant Scott Favre (""Favre"") acquired Precision. 1 CR 640. Precision
warranted to Favre that the marketing lists Precision had developed belonged to Precision. 1 CR
641.
That same month, Pohl filed an Amended Answer in the Mississippi Litigation, alleging that
Precision was in possession of confidential and propriety information that belonged to Pohl, and
that Precision had ""joined a conspiracy with Scott Favre, his business entities and/or affiliates to
convert property belonging to Pohl . . ."" 3 CR 195-96. The Mississippi Litigation settled in April
2017, and all claims were dismissed. 1 CR 353-54.
C. Pohl Is Sued for Barratry and Retaliates by Filing the Instant Suit Against Precision
and Favre.
Kassab, representing several hundred of Pohl's former clients, began filing lawsuits against
Pohl for barratry, and Pohl retaliated by filing the instant lawsuit. Pohl alleged that Favre, as the
manager/ owner of Precision and ""working through"" Scott M. Favre PA, LLC, with the assistance
of attorney Appellant Tina Nicholson (""Nicholson""), had misappropriated Pohl's marketing lists. 1
CR 4-9, 2 CR 894. Pohl alleged that these Appellants then sold [*10] the information to Kassab
and Montague, who used the lists to inform potential clients of their right to sue Pohl for his
violation of the barratry laws. 1 CR 4-9, 2 CR 894. Pohl claimed that these actions breached the
parties' settlement agreement in the Mississippi Litigation. 1 CR 12-13. He also pleaded claims
of conversion, violation of the Texas Uniform Trade Secrets Act (""TUTSA""), and civil conspiracy
against Favre, Scott M. Favre PA, LLC, and Precision (collectively ""the Favre Appellants""). 1 CR
12-13.
The Favre Appellants filed a Motion to Dismiss, which the trial court considered at the
December 3, 2018 hearing. 2 RR 34-39. The trial court ultimately denied the motion and the
Favre Appellants timely filed this appeal. 3 App. E, F.
SUMMARY OF ARGUMENT
The trial court erred in denying [*11] the Favre Appellants' Motion to Dismiss because Pohl's
conversion, TUTSA violations, and civil conspiracy claims are based on, relate to, or were made
in response to protected communications by the Favre Appellants in the exercise of their right of
free speech and right of association. Because the Favre Appellants established that the TCPA
applies to Pohl's conversion, TUTSA violations, and civil conspiracy claims, the burden shifted to
Pohl to establish a prima facie case for each element of these causes of action by clear and
specific evidence.
Pohl failed to carry this burden. He failed to establish a prima facie case of ownership of the
alleged trade secrets and confidential information. Instead, the evidence established that
Precision had at all times owned and possessed the client lists and other information. Pohl
3 The Favre Appellants are foreign Defendants and residents of Mississippi. Due to difficulties with service and with retaining
counsel, their Motion to Dismiss was inadvertently filed three days late. App. B, D. However, the trial court granted the Favre
Appellants' Motion for Leave to file their Motion to Dismiss and found that the motion was timely filed pursuant to the court's
authority under section 27.003. App. E.
Page 7 of 21
2019 TX APP. CT. BRIEFS LEXIS 10777, *11
similarly failed to establish that the allegedly confidential information deserved trade secret
protection or that he had taken steps to maintain its confidentiality. And, he failed to demonstrate
any injury from the alleged disclosure of this information to Kassab and Defendants Douglas F.
Montague III and the firm of Montague Pittman & Varnado, P.A. (collectively [*12] ""Montague"").
Pohl also failed to show that the commercial speech exemption to the TCPA applied to Favre
or Scott M. Favre Public Adjusting LLC. The commercial speech exemption applies only to
communications that a defendant who is primarily engaged in the business of selling or leasing
goods or services, makes in the defendant's capacity ""as a seller or lessor of those goods or
services."" Favre and his adjusting firm are public adjusters; they are in the business of adjusting
real and personal property insurance claims. Pohl's causes of action Favre and his firm have
nothing to do with their adjusting services. Rather, those claims are based on the alleged
transfer of trade secret information to Kassab and Montague.
Pohl's failure to carry his burden to demonstrate a prima facie case for each element of his
conversion, TUTSA violations, and civil conspiracy claims, and his failure to show that the
commercial speech exemption applies to those claims, entitled the Favre Appellants to dismissal
of these causes of action.
Finally, even if Pohl did carry his burden of proof-and he did not-the Favre Appellants [*13]
carried their burden of proving that Pohl's claims for conversion, TUTSA violations, and civil
conspiracy were barred by limitations. The trial court therefore erred in denying the Favre
Appellants' Motion to Dismiss.
ARGUMENT
I. THE TRIAL COURT ERRED BY FAILING TO GRANT THE FAVRE APPELLANTS'
MOTION TO DISMISS.
Pohl's claims against The Favre Appellants should be dismissed because (a) they are based
on, relate to, and are in response to these Appellants' exercise of their right of association, right
of free speech, and right to petition; (b) Pohl cannot establish a prima facie case for essential
element of his claims or that an exemption to the TCPA applies; and (c) the Favre Appellant
established that Pohl's claims for conversion, TUTSA violations, and civil conspiracy are barred
by limitations.
A. Standard of Review.
The TCPA ""protects citizens who petition or speak on matters of public concern from retaliatory
lawsuits that seek to intimidate or silence them."" In re Lipsky, 460 S.W.3d 579, 584 (Tex. 2015)
(orig. proceeding). It does that through a motion to dismiss for ""any suit that appears to stifle the
defendant's"" exercise of those rights. Id. Reviewing a TCPA motion to dismiss requires [*14] a
three-step analysis:
4 The Montague Defendants filed a Special Appearance in the trial court.
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(1) The moving party must show that the action against it is based on the exercise of the
rights as defined in the TCPA. See TEX. CIV. PRAC. & REM. CODE Ann. § 27.005(b).
(2) If the movant meets its burden, the nonmoving party must establish a prima facie case
for each element of its claim, Id. § 27.005(c), or that one of several exemptions to the
TCPA apply, such as the commercial speech exemption. See id. § 27.010(b).
(3) If the nonmoving party satisfies that requirement, the burden shifts back to the movant
to prove each element of a defense. Id. § 27.005(d).
See also Youngkin v. Hines, 546 S.W.3d 675, 679-80 (Tex. 2018). If dismissal is appropriate,
the trial court must award the moving party ""court costs, reasonable attorney's fees, and other
expenses incurred in defending against the legal action"" as well as sanctions ""sufficient to deter
the party who brought the legal action from bringing similar actions[.]"" Id. at § 27.009(a).
This Court must conduct a de novo review of the trial court's determinations that the parties
met or failed to meet their burdens of proof under the TCPA. See Gaskamp v. WSP USA, Inc.,
No. 01-18-00079-CV, 2018 Tex. App. LEXIS 10643, at *26 (Tex. App.-Houston [1st Dist] Dec.
20, 2018, no pet. h.); Better Bus. Bureau of Metro. Hous., Inc. v. John Moore [*15] Servs.,
Inc., 441 S.W.3d 345, 353 (Tex. App.- Houston [1st Dist] 2013, pet. denied). The Court must
consider the pleadings and evidence on which the liability or defense is based to determine
whether the statute is implicated. See TEX. CIV. PRAC. & REM. CODE Ann. § 27.006(a). To
the extent resolution of this appeal turns on construction of the TCPA, the Court must also
review these issues de novo. Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015).
Since it is well established that a lawsuit constitutes a ""legal action"" under the TCPA, see
TEX. CIV. PRAC. & REM. CODE Ann. § 27.001(6), the analysis in this case begins with whether
the Favre Appellants met their burden of demonstrating by a preponderance of the evidence that
Pohl's claims are factually predicated on conduct that falls within protected communications that
were made in connection with Appellants exercising their right of association, right of free
speech, and right to petition.
B. Pohl's Claims Should Be Dismissed Because They Are Based On, Relate To, or Are in
Response to, the Favre Appellants' Exercise of Their Protected Rights.
1. The Favre Appellants' Alleged Disclosures of Trade Secret Confidential and
Information Qualify as ""Communications"" under the TCPA.
The term ""communication""-a component of all [*16] three forms of protected conduct under
the TCPA-is defined as ""the making or submitting of a statement or document in any form or
medium, including oral, visual, written, audiovisual, or electronic."" TEX. CIV. PRAC. & REM.
CODE Ann. § 27.001(1). Pohl alleges that the Favre Appellants used and disclosed to Kassab
and Montague ""trade secret and other confidential information"" belonging to Pohl-i.e., the names
of the clients whom Precision had solicited for Pohl, fee agreements, and other documents. 1
CR 4-6.
These alleged disclosures qualify as ""communications"" under the TCPA regardless of Pohl's
assertion that they included his alleged trade secrets, because the substance of a
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2019 TX APP. CT. BRIEFS LEXIS 10777, *16
communication does not remove it from the purview of the TCPA. For example, in Elite Auto
Body, the Court held that the alleged disclosure of trade secrets and other confidential
information qualified as ""communications"" under the TCPA. See Elite Auto Body LLC v.
Autocraft Bodywerks, Inc., 520 S.W.3d 191, 193 (Tex. App.-Austin 2017, pet. dism'd). The Elite
Auto Body Court explained that the TCPA is not limited to the protections afforded ""free speech""
under the First Amendment. Id. at 204. Rather, it is much broader and covers all
communications that fall within the TCPA's broad definition of ""communication."" Id.
Elite Auto Body is directly on point. 520 S.W.3d at 193. The plaintiff, [*17] an auto repair shop,
sued its rival repair shop for civil conspiracy and TUTSA violations, alleging that its former
employees had wrongfully misappropriated and used its trade secrets when the former
employees joined the rival shop. Id. at 194-95. Because the plaintiff alleged that these
""communications"" were made in furtherance of the rival shop's business relative to the plaintiff's
competitive position, the Court held that the communications were made to ""promote, pursue, or
defend common interests,"" the plaintiff's legal action related to the defendants' exercise of their
right of association and the communications were protected. Id. at 204-05. Whether the
communications included confidential and proprietary information did not remove them from the
TCPA. Rather, this was part of the plaintiff's burden of establishing a prima facie case for each
element of its claims. Id. at 206 (""proof of the trade-secret or protected status of the information
is relevant to and is properly addressed in this 'second part' of the TCPA burden-shifting
analysis."").
Thus, contrary to what Pohl argued in his Response to the trial court, the fact that the alleged
communications between the [*18] Favre Appellants, Nicholson, Kassab and Montague
contained alleged trade secrets does not negate the TCPA's application. See id.; see also
Rauhauser v. McGibney, 508 S.W.3d 377, 384 and n.4 (Tex. App.-Fort Worth 2014, no pet.)
(alleged ""terroristic threats"" and ""cyber-stalking"" were ""communications"" under TCPA).
2. The Favre Appellants Made the Communications at Issue While Exercising Their
Protected Rights.
a. The Communications Are Protected under the Favre Appellants' Exercise of Their
Right of Association.
The ""exercise of the right of association"" is ""a communication between individuals who join
together to collectively express, promote, pursue, or defend common interests."" TEX. CIV.
PRAC. & REM. CODE Ann. § 27.001(2). According to Pohl's own pleadings, the Favre
Appellants engaged in the communications at issue for the purpose of joining together with
Kassab and Montague to pursue a common, shared business interest-locating and advising
Pohl's former clients that they had a cause of action against Pohl for barratry. 2 CR 891 (alleging
that Defendants joined together to misappropriate Pohl's trade secrets and to use this property
""for their own gain""); 2 CR 895 (claiming Favre and Nicholson ""sold Pohl's stolen confidential
information"" [*19] to Kassab and Montague); 2 CR 896-98 (alleging that as a result of this sale,
Nicholson and Kassab have successfully solicited Pohl's former clients to bring barratry claims
against Pohl).
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2019 TX APP. CT. BRIEFS LEXIS 10777, *19
The Favre Appellants were therefore exercising their right to association when they disclosed
the information to Kassab and Montague and the communications at issue are protected under
the TCPA. See Elite Auto Body, 520 S.W.3d at 205 (communications that allegedly shared or
used the plaintiff's information fell within the scope of the TCPA, because the communications
were made ""in furtherance of the [defendant's] business enterprise relative to [plaintiff's]
competitive position"" and were an ""exercise of the right of association."").
b. The Communications Are Protected under the Favre Appellants' Exercise of Their
Right to Free Speech.
The communications at issue were also made pursuant to the Favre Appellant's exercise of
their right to free speech. The TCPA broadly defines the ""exercise of the right of free speech"" as
""a communication made in connection with a matter of public concern."" TEX. CIV. PRAC. &
REM. CODE Ann. § 27.001(3). A ""'matter of public concern' includes"" but is not limited [*20] to
""an issue related to: (A) health or safety; (B) environmental, economic, or community well-being;
(C) the government; (D) a public official or public figure; or (E) a good, product, or service in the
marketplace."" Id. § 27.001(7).
In construing the ""exercise of the right of free speech"" under the TCPA, the Texas Supreme
Court has squarely rejected the notion that the TCPA is limited to speech exercised in a public
forum about purely public matters. See Lippincott, 462 S.W.3d at 509-10 (holding that TCPA
applied to allegedly defamatory statements made in private e-mails about an employee nurse
anesthetist). The Court held in ExxonMobil Pipeline Company v. Coleman that:
The TCPA does not require that the statements specifically ""mention"" [the statutorily
identified matter of public concern], nor does it require more than a ""tangential relationship""
to the same; rather, TCPA applicability requires only that the defendant's statements are ""in
connection with"" ""issue[s] related to"" health, safety, environmental, economic, and other
identified matters of public concern chosen by the Legislature.
512 S.W.3d 895, 900 (Tex. 2017).
Here, by sharing client lists with Kassab [*21] and Montague, along with information
concerning Pohl's legal services and how he acquired his clients, the Favre Appellants made
statements regarding both a matter of public concern, and a service provided in the community.
TEX. CIV. PRAC. & REM. CODE Ann. § 23.001(7)(B), (E).
Texas courts have held that a lawyer's representation of his client(s), and the practice of law,
constitute matters of public concern. In Daver v. Desai, the court held that a lawyer's ability to
represent clients was a ""matter[] of public concern"" under the TCPA. See Deaver v. Desai, 483
S.W.3d 668, 673 (Tex. App.-Houston [14th Dist.] 2015, no pet.). In Avila v. Larrea, the court
held that a communication about a lawyer's handling of cases was a matter of public concern
within the TCPA. See Avila v. Larrea, 394 S.W.3d 646, 655 (Tex. App.-Dallas 2012, pet.
denied). In Trevino v. Cantu, the court concluded that the communications were ""undoubtedly""
matters of public concern because they concerned the practice of law, cases filed in the judicial
system, and disciplinary proceedings brought in Texas against a lawyer licensed by the Texas
Supreme Court. See Trevino v. Cantu, No. 13-16-00109-CV, 2017 Tex. App. LEXIS 886, at *8-
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2019 TX APP. CT. BRIEFS LEXIS 10777, *21
9 (Tex. App.-Corpus Christi Feb. 2, 2017, no pet.). And in Bacharach v. Doe, the court held
that an abuse of one's position as an attorney ""may be considered a matter of public concern
under the TCPA."" [*22] Bacharach v. Doe, No. 14-14-00947-CV, 2016 WL 269958, at *3 (Tex.
App.- Houston [14th Dist.] Jan. 21, 2016, no pet.).
The Favre Appellants' communications concerned Pohl's representation of his former clients,
Pohl's abuse of his position as an attorney, and Kassab and Montague's potential representation
of those clients for claims of barratry against Pohl. Under the above case law, these constitute
matters of public concern.
Moreover, Pohl has brought a civil conspiracy claim against the Favre Appellants, and
numerous courts have found that the right of association under the TCPA is implicated by civil
conspiracy allegations. See Elite Auto, 520 S.W.3d at 206 (acknowledging that conspiracy
claim fell under TCPA's right of association); Craig v. Tejas Promotions, LLC, 550 S.W.3d 287,
295-96 (Tex. App.-Austin 2018, pet. filed) (same); Backes v. Misko, 486 S.W.3d 7, 20 (Tex.
App.-Dallas 2015, pet. denied) (same); see also MVS Int'l Corp. v. Int'l Advert. Sols., LLC, 545
S.W.3d 180, 194 (Tex. App.-El Paso 2017, no pet.) (explaining that as statute is written,
conspiracy claims would fall under TCPA's right of association).
The communications at issue are therefore protected communications pursuant to the Favre
Appellants' exercise of their right of free speech.
3. Pohl's Claims Relate to, or Were Brought in Response to, the Favre Appellants'
Protected Communications.
In addition establishing that the alleged disclosures were protected [*23] communications
under the TCPA, the Favre Appellants also demonstrated that Pohl's ""legal action is based on,
relates to, or is in response to"" these protected communications. See TEX. CIV. PRAC. & REM
CODE ANN. § 27.005(b). The phrase ""based on, relates to, or is in response to"" dictates the
nexus that must exist between the ""legal action"" and the protected conduct under the TCPA.
Grant v. Pivot Tech. Sols., Inc., 556 S.W.3d 865, 879 (Tex. App.-Austin 2018, pet. filed).
Although not further defined in the Act, the phrase serves to capture, at a minimum, a ""legal
action"" that is factually predicated on the alleged conduct that falls within the scope of TCPA's
definition of ""exercise of the right of free speech,"" petition, or association. See Cavin v. Abbott,
545 S.W.3d 47, 59 (Tex. App.-Austin 2017, no pet.). The Texas Supreme Court has rejected the
assertion that the plain language of the phrase-which includes no qualification as to its limits-
requires something more than a tenuous or remote relationship. See ExxonMobil, 512 S.W.3d
at 901. Instead, based on the ordinary meaning of the terms, a plaintiff's claims are ""related"" to a
protected communication when there is ""some sort of connection, reference, or relationship
between them,"" and are ""in response to"" a protected communication [*24] when they ""react[] to
or [are] asserted subsequently to"" the communication. See Cavin, 545 S.W.3d at 69.
Pohl's claims for conversion, TUTSA violations, and civil conspiracy relate to and were brought
in response to the Favre Appellants' protected communications. But for Pohl's allegation that the
Favre Appellants shared and used the names of Pohl's prior clients and other documents with
Kassab and Montague, these causes of action against the Favre Appellants would not exist.
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2019 TX APP. CT. BRIEFS LEXIS 10777, *24
Moreover, Pohl filed this lawsuit after Kassab had filed four lawsuits against Pohl on behalf of
over 400 of Pohl's former clients, alleging claims of barratry. 1 CR 75. Pohl clearly intended this
lawsuit to harass and intimidate Appellants for the four lawsuits against him. Pohl's claims were
therefore filed as a ""reaction"" to, and subsequent to,"" the protected communications. See
Cavin, 545 S.W.3d at 69-70.
C. Pohl's Claims Should Be Dismissed Because He Failed to Establish a Prima Facie
Case for Each Essential Element of His Causes of Action for Conversion, TUTSA
Violations, and Civil Conspiracy.
Once the Favre Appellants demonstrated that Pohl's conversion, TUTSA violations, and civil
conspiracy [*25] claims relate to or were brought in response to protected communications, the
burden shifted to Pohl to establish by ""clear and specific evidence"" a prima facie case for each
essential element of these claims. See TEX. CIV. PRAC. & REM. CODE Ann. § 27.005(c). The
TCPA does not define ""clear and specific evidence,"" but the Texas Supreme Court has held that
the standard requires more than mere notice pleadings and that the plaintiff ""must provide
enough detail to show the factual basis for its claim."" D Magazine Partners, L.P. v. Rosenthal,
529 S.W.3d 429, 434 (Tex. 2017); In re Lipsky, 460 S.W.3d at 591. A ""prima facie case"" refers
to evidence sufficient as a matter of law to establish a given fact if it is not rebutted or
contradicted. In re Lipsky, 460 S.W.3d at 590. Direct evidence of each essential element of the
underlying claim is not required. Id. at 590-91.
1. Pohl's Claim for Conversion Should Be Dismissed Because He Failed to Establish a
Prima Facie Case of Ownership.
Conversion is the unauthorized and unlawful assumption and exercise of dominion and control
over the personal property of another, to the exclusion of or inconsistent with, the owner's rights.
Freezia v. IS Storage Venture, [*26] LLC, 474 S.W.3d 379, 386 (Tex. App.-Houston [14th Dist.]
2015, no pet.). The essential elements are: (1) the plaintiff owned or had possession of the
property or entitlement to possession; (2) the defendant unlawfully and without authorization
assumed and exercised control over the property to the exclusion of, or inconsistent with, the
plaintiff's rights as an owner; (3) the plaintiff demanded return of the property; and (4) the
defendant refused to return the property. Id. at 386-87; Stroud Prod., L.L.C. v. Hosford, 405
S.W.3d 794, 811 (Tex. App.-Houston [1st Dist.] 2013, pet. denied).
Pohl failed to establish a prima facie case of ownership-the first element of his conversion
claim. Pohl claimed that the trade secret and confidential information at issue includes:
the identities of Pohl's clients/prospective clients, as well as their detailed contact
information . . . . actual attorney-client fee agreem ents with clients/prospective
clients, compilations of clients, other confidential communications between the
clients/prospective clients and Pohl, specialized legal forms that had been prepared in
compliance with various state laws after consultation with local counsel in those jurisdictions,
Pohl's proprietary administrative client forms, fee-agreement forms prepared in accordance
with the laws of [*27] various states, internal emails, propriety marketing information and
other trade secrets, and other work product relating to claims of Pohl's clients and
prospective clients.
Page 13 of 21
2019 TX APP. CT. BRIEFS LEXIS 10777, *27
2 CR 895 (emphasis in original). He also asserted that Precision stole ""physical copies of
certain of the information, stole Pohl's computers, and misappropriated electronic data to which
they had access through Precision's work for Pohl."" 2 CR 895.
But the only evidence of ownership that Pohl presented to the trial court consisted of the
following two statements in his sworn Declaration:
4. I was and am the rightful owner of the confidential, privileged and trade secret
information that Kassab obtained from Scott Favre, Precision Marketing Group, LLC
(""Precision), and Tina Nicholson on which this suit is based.
5. . . . Precision undertook to convert, misappropriate for itself, and/or market to third
parties claimant files and other information and materials that belong to me.
2 CR 1393. These conclusory statements do not establish a prima facie case of ownership,
particularly because the Favre Appellants presented controverting evidence. 5See In re Lipsky,
460 S.W.3d at 590 (""prima facie case"" refers to evidence sufficient as a matter of law to
establish a given fact if it is not rebutted or contradicted). Favre testified by affidavit that the
client lists and related information had always belonged to Precision:
Precision has developed proprietary marketing lists consisting of the names of persons and
business on the Gulf Coast, particularly in Mississippi. These marketing lists were and are
solely the work product and property of Precision, developed during the normal course of its
marketing business.
2 CR 842. He similarly testified under oath in the Mississippi Litigation that Williamson (and
possibly Pohl) had previously told him that they had no interest in the client lists or other
information:
You guys said, No, you had no interest, you had no interest. Your exact words were, We
could care less if that list gets out there or not. We did absolutely nothing wrong, and [*29]
we had that conversation three times, Mr. Shepherd. So now all of a sudden this list is a
problem.
2 CR 791. Williamson's attorney also represented to the Court in the Mississippi Litigation that,
""It is immaterial who had the right to possess the list or files or for that matter who may be the
owner or creator of the list or files."" 2 CR 826. 6
Pohl's conduct is consistent with Favre's testimony, and with Williamson's representation that
he and Pohl did not care what happened to the client lists. He failed to articulate what steps he
5 The Favre Appellants' Motion to Dismiss referred the trial [*28] court to the ""Motion to Dismiss by Lance Kassab, with
Exhibits,"" for more information regarding Pohl's barratry conduct. 3 CR 136. This evidence was therefore before the trial court
when it considered the Favre Appellants' Motion to Dismiss.
6 Due to Pohl's proximity to Williamson as both a joint venture and as a Co-Defendant with aligned interests, Williamson's
understanding and knowledge can be imputed to Pohl. See Heinrich v. Wharton Cty. Livestock, Inc., 557 S.W.2d 830, 833-34
(Tex. Civ. App.-Corpus Christi 1977, writ ref'd n.r.e.) (as a general rule, a joint venture is governed by the same rules as a
partnership, and the knowledge of one partner regarding partnership matters is imputed to another).
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2019 TX APP. CT. BRIEFS LEXIS 10777, *28
took, if any, to ensure that he retained primary ownership of the client names, files, etc., and to
maintain their confidentiality. Although he did send a letter to Nicholson in May 2015 the request
the return of the fee contracts, 3 CR 152, he never followed up on this [*30] request or
challenged Precision's response asserting ownership.
In February 2016, counsel for Williamson in the Mississippi Litigation sent Nicholson a letter,
claiming that the client contracts and files belonged to Pohl and Williamson. 2 CR 819-20.
Nicholson responded that ""all of these documents were created by [Precision] and/or third
parties, and [Precision] ha[s] had possession of these documents since they were created."" 2
CR 821. She pointed out that Williamson (and Pohl) had known for four years, since 2012, that
Precision had these documents, yet neither Williamson nor Pohl had ""at any time asserted any
interest in or right to the documents."" 2 CR 821-22.
In May 2016, Pohl amended his Answer in the Mississippi Litigation to assert that Precision
had joined a conspiracy with Favre to convert Pohl's property. 3 CR 195-96. But by this point,
Pohl had realized that he might be the subject of several barratry claims, and he suddenly
decided that he needed to assert ownership over the client lists and other information to protect
himself. The fact that he was never in possession of this information, and that he waited three
years to claim it belonged to him, moots any allegation of ownership.
In contrast, [*31] Precision presented affidavit testimony from Favre that Precision created the
documents and client lists, has had possession of them since their creation, and that this
information belonged to Precision as its work product. 2 CR 821, 842.
Pohl's assertion of ownership further fails because the fee agreements, client names and files,
etc., belonged to Pohl's former clients. Under Texas Rule of Professional Conduct 1.15(d), upon
the termination of representation, a lawyer must take steps to protect the client's interests, such
as ""surrendering papers and property to which the client is entitled . . . "" The lawyer ""may"" retain
papers relating to the client ""only if such retention will not prejudice the client in the subject
matter of the representation."" Id.
The attorney is therefore the ""agent of the client,"" and "" the work product generated by the
attorney in representing the client belongs to the client."" In Re Kenneth George-
consolidated with-In Re Epic Holdings, Inc., 28 S.W.3d 511, 516 (Tex. 2000) (emphasis added);
see also Hebisen v. State, 615 S.W.2d 866, 868 (Tex. Civ. App.-Houston [1st Dist.] 1981, no
writ). Everything in the entire file having to do with a clients' representation, i.e. attorney notes,
legal memoranda, etc., belongs to the client. Resolution Trust Corp. v. H-, [*32] P.C., 128 FRD
647, (N.D. Tex. 1989) (holding that the original file belongs to the client because it was paid for
by the client). Pohl consequently failed to establish a prima facie case of ownership over the
alleged trade secret and confidential information.
The evidence negating ownership also negates the second element of Pohl's conversion claim-
that the Favre Appellants unlawfully and without authorization assumed and exercised control
over the property to the exclusion of, or inconsistent with, Pohl's alleged rights as the owner.
See Freezia, 474 S.W.3d at 386-87. Pohl therefore failed to establish a prima facie case for the
first two elements of his conversion claim, and this cause of action should be dismissed under
the TCPA.
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2019 TX APP. CT. BRIEFS LEXIS 10777, *32
2. Pohl's Claim for Violation of the TUTSA Should Be Dismissed Because He Failed to
Establish a Prima Facie Case that the Information Qualifies as a Trade Secret, or that He
Sustained Any Injury.
The elements of a claim for violation of the TUTSA are (1) ownership of a trade secret; (2)
misappropriation of the trade secret; and (3) an injury, if the plaintiff is seeking damages. TEX.
CIV. PRAC. & REM. CODE Ann. §§ 134A.002(1), (3), (6), 134A.004(a). Pohl failed to
establish [*33] a prima facie case on all three elements.
As to the first element, the evidence and argument in Part (C)(1) above demonstrate Pohl's
lack of ownership. Pohl also failed to establish that the information qualified as a trade secret
under the TUTSA. See Stewart & Stevenson Servs. v. Serv-Tech, Inc., 879 S.W.2d 89, 99
(Tex. App.-Houston [14th Dist.] 1994, writ denied) (party claiming trade secret status bears the
burden of proof). Information subject to trade secret protection includes:
formulas, patterns, compilations, programs, devices, methods, techniques, processes,
financial data, and lists of actual or potential customers or suppliers that (1) the plaintiff
has taken reasonable efforts to keep secret and (2) has actual or potential independent
economic value to third parties because it is not generally known and not readily
ascertainable by proper means.
TEX. CIV. PRAC. & REM. CODE Ann. § 134A.002(6) (emphasis added). In determining
whether information constitutes a trade secret, courts consider the following factors:
(1) The extent to which the information is known outside the claimant's business;
(2) The extent to which the information is known by employees and other involved in the
claimant's business;
(3) The extent of the [*34] measures taken by the claimant to guard the secrecy of the
information;
(4) The value of the information to the claimant and its competitors;
(5) The amount of effort or money expended by the claimant in developing the information;
and
(6) The ease or difficulty with which the information could be properly acquired or
duplicated by others.
In re Bass, 133 S.W.3d 735, 739 (Tex. 2003).
Pohl generally asserted in his Declaration that he ""took substantial measures to maintain the
materials and information"" at issue as ""confidential,"" that he ""protected them as trade secrets,""
and that he kept the physical copies ""under lock and key."" 2 CR 1394-95. He did not explain,
however, what ""measures"" he took to maintain the confidentiality of the electronic information or
the duplicate copies. He did not articulate any parameters that he established to ensure that
Precision did not share the information. And he did not detail the amount of money he invested
in keeping this information confidential. Pohl's conclusory allegations did not establish a prima
Page 16 of 21
2019 TX APP. CT. BRIEFS LEXIS 10777, *34
facie case that the information enjoys ""trade secret"" status. See Game Sys. v. Forbes Hutton
Leasing, Inc., No. 02-09-00051-CV, 2011 Tex. App. LEXIS 4098, at *76 (Tex. App.-Fort Worth,
May 26, 2011, no pet.) (mem. op.) (statement that the software ""constitutes a trade [*35]
secret"" was conclusory and not proper evidence).
In addition, the names and addresses of Pohl's former clients, along with their individual fee
agreements, are not confidential. ""[T]he attorney-client privilege certainly does not encompass
such non-confidential matters as the terms and conditions of an attorney's employment and the
purpose for which an attorney has been engaged."" Borden, Inc. v. Valdez, 773 S.W.3d 718,
720 (Tex. App.-Corpus Christi 1989, no writ); Jim Walter Homes, Inc. v. Foster, 592 S.W.2d
749, 752 (Tex. Civ. App.-Eastland 1979, no writ) (fee agreement is not privileged or confidential
because it is a matter collateral to the professional relationship and has no bearing on the merits
of the matter on which the attorney was hired). 7
Finally, the Favre Appellants controverted these conclusory assertions with contrary evidence
that Pohl [*36] did not protect this information as trade secret or proprietary (see Part (C)(1)
above). Pohl therefore failed to make a prima facie case that the information at issue qualified
as a trade secret under the TUTSA.
As to the third element of injury, Pohl's evidence consisted of the conclusory assertion that ""the
exposure of the confidential materials and information"" had resulted ""in a loss of intrinsic value
to me as trade secrets and confidential materials."" 2 CR 1394. Pohl did not place any value on
these trade secrets or explain how their disclosure injured him. He did not state that he would
suffer lost revenue, lost clients, increased competition, or that the allegedly confidential
information gave him a valuable economic or competitive advantage. Other than preventing his
former clients from bringing rightful claims against him, Pohl has no use for or reason to value,
the purportedly confidential information. In truth, Pohl's only ""injury"" from the disclosure of the
allegedly confidential information consists of the barratry lawsuits his former clients have filed
against him.
Pohl failed to establish a prima facie case of injury under the TUTSA and this claim should
have [*37] been dismissed. 8
3. Pohl's Claim for Civil Conspiracy Should Be Dismissed Because He Failed to
Establish a Prima Facie Case on His Conversion or TUTSA Claims.
7 See also Stewart Abstract Co. v. Judicial Comm'n of Jefferson County, 131 S.W.2d 686, 690 (Tex. Civ. App. - Beaumont 1939,
no writ) (account and ledger books showing names of clients, nature of services rendered, and payments were not privileged or
confidential); In re Ginther, No. 07-80200-G3-11, 2008 Bankr. LEXIS 2624, at *14 (Bankr. S.D. Tex. Aug. 29, 2008)
(recognizing that the ""identity of client, terms and conditions of employment, amount of fee, identification of payment by case file
name, and the general purpose of the work performed, are not privileged."")
8 Compare and contrast Morgan v. Clements Fluids S. Tex., Ltd., No. 12-18-00055-CV, 2018 Tex. App. LEXIS 9061, at *13 (Tex.
App.-Tyler Nov. 5, 2018, no pet.) (holding prima facie case of TUTSA violation met where plaintiff asserted that trade secrets
gave it a valuable economic and competitive advantage in the industry); Universal Plant Servs. v. Dresser-Rand Grp., Inc., No.
01-17-00555-CV, 2018 Tex. App. LEXIS 10650, at *30-32 (Tex. App.- Houston [1st Dist.] Dec. 20, 2018, no pet.) (prima facie
case for misappropriation of trade secrets made where plaintiff presented evidence that the information misappropriated was
worth more than $ 100 million in future revenue).
Page 17 of 21
2019 TX APP. CT. BRIEFS LEXIS 10777, *37
Finally, Pohl alleges that all Defendants ""entered into a combination with the object of
unlawfully misappropriating Pohl's trade secrets,"" ""stealing Pohl's confidential information,"" and
using it for Defendants' own gain. 2 CR 891. Civil conspiracy is a derivative cause of action; the
defendant's liability depends on its participation in some underlying tort for which the plaintiff
seeks to hold at least one of the named defendants liable. Tilton v. Marshall, 925 S.W.2d 672,
681 (Tex. 1996) (orig. proceeding). Since Pohl failed to establish a prima facie case of
conversion or misappropriation [*38] of trade secrets, he likewise cannot establish a prima facie
case for each element of his civil conspiracy claim.
D. Pohl's Claims Should Be Dismissed Because He Failed to Establish that the
Commercial Speech Exemption Applies.
Under the ""commercial speech exemption,"" the TCPA does not apply to:
a legal action brought against a person primarily engaged in the business of selling or
leasing goods or services, if the statement or conduct arises out of the sale or lease of
goods, services, or an insurance product, insurance services, or a commercial transaction in
which the intended audience is an actual or potential buyer.
TEX. CIV. PRAC. & REM. CODE Ann. § 27.010(b). According to the Texas Supreme Court's
interpretation of this statute in Castleman, the exemption applies when:
(1) the defendant was primarily engaged in the business of selling or leasing goods,
(2) the defendant made the statement or engaged in the conduct on which the claim is
based in the defendant's capacity as a seller or lessor of those goods or services,
(3) the statement or conduct at issue arose out of a commercial transaction involving the
kind of goods or services the defendant provides, and [*39]
(4) the intended audience of the statement or conduct were actual or potential customers of
the defendant for the kind of goods or services the defendant provides.
Castleman v. Internet Money Ltd., 546 S.W.3d 684, 688 (Tex. 2018). ""The party asserting the
exemption bears the burden of proving its applicability."" Id. Pohl failed to carry this burden of
proof as to Appellants Scott Favre and Scott M. Favre Public Adjuster, LLC.
Scott Favre is a licensed public insurance adjuster doing business as Scott M. Favre Public
Adjuster, LLC. 3 CR 207. Scott M. Favre Public Adjuster, LLC is a public adjusting firm that
adjusts insurance losses resulting from catastrophic storms and other losses. 3 CR 209. Favre
and his firm are therefore in the business of selling public insurance adjusting services, which as
defined by Texas law concerns the negotiation and settlement of property insurance claims.
See Tex. Ins. Code Ann. § 4102.001(3).
For the commercial speech exemption to apply, Favre and his firm must have made the
communications about which Pohl complains in their capacity ""as a seller or lessor of those
goods or services""-that is, in their capacity as sellers of public insurance adjusting services.
Castleman, 546 S.W.3d at 688. But Pohl does not complain [*40] about communications made
in the context of adjusting services. He complains about communications through which Favre
Page 18 of 21
2019 TX APP. CT. BRIEFS LEXIS 10777, *40
and Precision allegedly sold the client lists and other information to Kassab and Montague. 2 CR
891. There is no evidence that Favre or Scott M. Favre Public Adjuster, LLC are in the business
of selling such information, or that they ever owned or possessed the information at issue.
Indeed, the evidence established that the client lists and other related information were at all
times in Precision's possession and ownership. 2 CR 821, 842. Pohl therefore failed to establish
that the commercial speech exception applies to Favre or Scott M. Favre Public Adjuster, LLC.
E. Pohl's Claims Should Be Dismissed Because They Are Barred by Limitations.
Under the TCPA, once a plaintiff has demonstrated a prima facie case for each element of its
causes of action, the burden shifts back to the movant to prove each element of an affirmative
defense. TEX. CIV. PRAC. & REM. CODE Ann. § 27.005(d). Pohl did not establish a prima facie
case for each element of his conversion, TUTSA violations, and civil conspiracy claims against
the Favre Appellants, but even if he did, those claims are barred by limitations.
1. Pohl's Conversion [*41] Claim Is Barred by Limitations.
Pohl's May 23, 2016 Amended Answer in the Mississippi Litigation proves that he knew about
his conversion cause of action more than two years before he filed the instant lawsuit. Pohl
asserts in the Amended Answer that, ""At a time as yet unknown, but believed to have been no
later than the summer of 2013, [Precision] joined with Scott Favre, his business entities and/or
affiliates, to convert property belonging to Pohl."" 3 CR 195-96. In May 2015, Pohl sent Precision
a letter, asking that Precision return the originals and copies of fee contracts with his BP clients.
3 CR 152. Pohl also testified in another proceeding that in 2014, the ""barratry lawyer's team""
(allegedly consisting of Nicholson, Kassab and Montague) broke into Pohl's office in Gulfport
Mississippi and stole all of his files, documents, computers and passwords. 1 CR 646-48.
Conversion carries a two year statute of limitations. Tex. Civ. Prac. & Rem. Code Ann. §
16.003. Pohl's pleadings in the Mississippi Litigation and his deposition testimony indicate that
he knew by May 23, 2016, and possibly before then, that he had a claim for conversion against
Precision. However, he did not [*42] file the instant lawsuit until August 28, 2018, which is more
than two years after his cause of action accrued. His conversion claim against the Favre
Appellants is therefore barred by limitations.
2. Pohl's Claim for TUTSA Violations Is Barred by Limitations.
Pohl also failed to file his claim for TUTSA violations within the three year limitations period.
The Mississippi Litigation was filed on October 18, 2014. 1 CR 308. Williamson alleged in a
pleading in that litigation that ""since before this lawsuit was filed , [Precision has]
threatened to sell to barratry lawyers the client contracts, questionnaires, supporting documents,
client contact information, etc. they obtained while working for the separate defendant, Michael
Pohl."" 3 CR 214- 15 (emphasis added). Pohl similarly alleged in his Amended Answer that ""
no later than the summer of 2013 ,"" Precision and Favre were converting his property. 3 CR
195-96 (emphasis added). There is also Pohl's prior deposition testimony that Nicholson 9 and
Kassab broke into his office in 2014 and stole information and property. [*43] 1 CR 646-48,
9 Pohl knew that Nicholson was representing Precision in the Mississippi Litigation. See 3 CR 152.
Page 19 of 21
2019 TX APP. CT. BRIEFS LEXIS 10777, *43
652. Pohl further testified that although these alleged thefts continued into 2015, and possibly
2016, he intentionally chose not to do anything about them. 1 CR 652-54.
This evidence establishes that Pohl was on notice by 2014 that he had a possible cause of
action against the Favre Appellants for misappropriation of trade secrets. Theft trade secrets is
governed by a three year statute of limitations, which expired on Pohl's claim for
misappropriation of trade secrets in 2017 at the latest. TEX. CIV. PRAC. & REM. CODE Ann. §
16.010. Since Pohl did not file the instant suit until August 28, 2018, and his claim for TUTSA
violations is time-barred.
3. Pohl's Civil Conspiracy Claim Is Barred by Limitations.
Because civil conspiracy is a derivative tort that depends on participation in some underlying
tort, the applicable statute of limitations coincides with that of the underlying tort. Agar Corp.,
Inc. v. Electro Circuits Int'l, LLC, No. 17-0630, 2019 Tex. LEXIS 351, at *1-2 (Tex. Apr. 5, 2019).
Pohl's civil conspiracy claims against the Favre Appellants are based on their alleged
conversion and misappropriation of allegedly confidential and trade secret information, which
barred by limitations. His claim for civil conspiracy is therefore [*44] time-barred as well.
CONCLUSION
The TCPA applies to the communications that form the basis of this lawsuit. Pohl failed to
establish a prima facie case as to each element of his conversion, TUTSA violations, and civil
conspiracy claims against the Favre Appellants, and even if he did, these claims are barred by
limitations. The trial court therefore erred in denying the Favre Appellants' Motion to Dismiss
Pohl's claims for conversion, TUTSA violations, and civil conspiracy.
PRAYER
The Favre Appellants request that this Court reverse the trial court's order denying their Motion
to Dismiss and enter judgment granting the Motion to Dismiss as to Pohl's claims for conversion,
violations of the TUTSA, and civil conspiracy. The Favre Appellants further request that this
case be remanded to the trial court for a hearing on attorney's fees and sanctions, which are
mandatory under the TCPA.
Respectfully submitted,
By: /s/ Todd Taylor
Todd Taylor, SBN 00785087
Jocelyn A. Holland, SBN 24059965
Johanson & Fairless, LLP
1456 First Colony Blvd.
Sugar Land, TX 77479
281-313-5000
281-340-5100
Page 20 of 21
2019 TX APP. CT. BRIEFS LEXIS 10777, *44
ttaylor@jandflaw.com
jholland@jandflaw.com
[*45] CERTIFICATE OF COMPLIANCE
Appellants certify that this Appellants' Brief (when excluding the caption, identity of parties and
counsel, table of contents, index of authorities, statement of the case, statement regarding oral
argument, statement of issues presented, signature, certificate of service, certificate of
compliance, and appendix) contains 8684 words.
/s/ Todd Taylor
TODD TAYLOR
CERTIFICATE OF SERVICE
I hereby certify that, on April 25, 2019, a true and correct copy of the above and foregoing has
been served via electronic service on the following:
Jean C. Frizzell
1100 Louisiana St., Suite 3500
Houston, Texas 77002
Counsel for Appellees Michael A. Pohl And
Law Office Of Michael A. Pohl, PLLC
Jessica Z. Barger
E. Marie Jamison
One Riverway, Suite 2200
Houston, Texas 77056
And
Chris C. Pappas
Andrew J. Sarne
Kimberly C. Clark
5051 Westheimer Road, Suite 1000
Houston, Texas 77056
Counsel for Appellants Tina Nicholson and
Baker Nicholson, LLP d/b/a Baker
Nicholson Law Firm
Lance Christopher Kassab, SBN 00794070
David Eric Kassab, SBN 24071351
THE KASSAB LAW FIRM
Page 21 of 21
2019 TX APP. CT. BRIEFS LEXIS 10777, *45
1214 Elgin Street
Houston, Texas 77004
Counsel [*46] for Appellants Lance Christopher
Kassab, Lance Christopher Kassab, P.C.
D/B/A The Kasab Law Firm
/s/ Todd Taylor
TODD TAYLOR
[SEE APPENDIX IN ORIGINAL]
End of Document"
8,2019-04-24,2019-04-24 BRF Kassab-Appellants-Brief-TCPA-Appeal FILED,appellate,2019-04-24_BRF_Kassab-Appellants-Brief-TCPA-Appeal_FILED.pdf,"ACCEPTED
01-18-01143-cv
FIRST COURT OF APPEALS
HOUSTON, TEXAS
4/24/2019 2:47 PM
CHRISTOPHER PRINE
CLERK
No. 01-18-01143-CV
_________________________________________
FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
IN THE FIRST COURT OF APPEALS
4/24/2019 2:47:11 PM
at Houston
CHRISTOPHER A. PRINE
_________________________________________ _ _ _ _ _ Clerk
LANCE CHRISTOPHER KASSAB AND LANCE CHRISTOPHER KASSAB,
PC D/B/A THE KASSAB LAW FIRM, ET AL.
Appellants
MICHAEL POHL AND LAW OFFICE OF MICHAEL A. POHL, PLLC
Appellees
______________________________________________
On Appeal from the 189th Judicial District Court of Harris County, Texas
Trial Court Cause No. 2018-58419
______________________________________________
BRIEF OF THE KASSAB APPELLANTS
______________________________________________
ALEXANDER DUBOSE & JEFFERSON LLP THE KASSAB LAW FIRM
Kevin Dubose Lance Christopher Kassab
Texas State Bar No. 06150500 Texas State Bar No. 00794070
kdubose@adjtlaw.com lance@kassab.law
1844 Harvard St. David Eric Kassab
Houston, Texas 77008 Texas State Bar No. 24071351
Phone (713) 523-2358 david@kassab.law
Facsimile (713) 522-4553 1214 Elgin Street
Houston, Texas 77004
Phone (713) 522-7400
Facsimile (713) 522-7410
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
Appellants: Lance Christopher Kassab and Lance Christopher
Kassab PC, d/b/a The Kassab Law Firm
Appellants’ Counsel: Kevin Dubose
ALEXANDER DUBOSE & JEFFERSON LLP
1844 Harvard St.
Houston, Texas 77008
(713) 523-0667
(713) 522-4553 (facsimile)
Appellate Counsel
Lance Christopher Kassab
David Eric Kassab
THE KASSAB LAW FIRM
1214 Elgin Street
Houston, Texas 77004
(713) 522-7400
(713) 522-7410 (facsimile)
Trial and Appellate Counsel
George “Buck” Cire
THE CIRE LAW FIRM
1770 Saint James Place Suite 350,
Houston, Texas 77057
(713) 532-6206
(713) 400-4999 (facsimile)
Trial Counsel
Appellants: Tina Nicholson and Baker Nicholson, LLP d/b/a
Baker Nicholson Law Firm
Appellants’ Counsel: Jessica Z. Barger
E. Marie Jamison
WRIGHT CLOSE & BARGER, LLP
One Riverway, Suite 2200
Houston, Texas 77056
(713) 572-4321
(713) 572-4320 (facsimile)
Trial and Appellate Counsel
Chris C. Pappas
Andrew J. Sarne
Kimberly C. Clark
KANE RUSSELL COLEMAN LOGAN PC
5051 Westheimer Road, Suite 1000
Houston, Texas 77056
(713) 425-7400
(713) 425-7700 (facsimile)
Trial and Appellate Counsel
Appellants: Scott Favre, Scott M. Favre Public Adjuster, LLC
and Precision Marketing Group, LLC
Appellants’ Counsel: Todd Taylor
Jocelyn A. Holland
JOHANSON & FAIRLESS
1456 First Colony Boulevard
Sugar Land, Texas 77479
(281) 313-5000
(281) 340-5100 (facsimile)
Trial and Appellate Counsel
Appellees: Michael Pohl and Law Office of Michael A. Pohl,
PLLC
Appellees’ Counsel: Jean C. Frizzell
REYNOLDS FRIZZELL LLP
1100 Louisiana St., Suite 3500
Houston, Texas 77002
(713) 485-7200
(713) 485-7250 (facsimile)
Trial and Appellate Counsel
Nonparty to Appeal: F. Douglas Montague III and Montague Pittman &
Varnado, P.A.
Nonparty’s Counsel: Dale Jefferson
Raul Suazo
Kevin Cain
MARTIN, DISIERE, JEFFERSON & WISDOM, LLP
808 Travis Street, 20th Floor
Houston, Texas 77002
(713) 632-1700
(713) 222-0101 (facsimile)
Trial Counsel
III
TABLE OF CONTENTS
Identity of Parties and Counsel .................................................................................. I
Table of Contents .................................................................................................... IV
Index of Authorities ............................................................................................... VII
Record References .................................................................................................... 1
Statement of Case ...................................................................................................... 2
Issues Presented ........................................................................................................ 3
Statement of Facts ...................................................................................................... 4
Pohl is sued by Mississippi “runners” who expose his illegal and
unethical barratry scheme ................................................................................ 4
Precision transfers and assigns its assets and claims against Pohl to
Favre – Pohl counterclaims for conversion in the Mississippi
Litigation but settles when he cannot obtain summary dismissal ................... 9
Kassab, Favre, Precision and Nicholson associate to expose Pohl’s
illegal and unethical barratry and more than 400 victims of Pohl’s
barratry scheme associate with Kassab to petition and file civil claims
and grievances against Pohl ...........................................................................10
Pohl sues Kassab and others for theft of trade secrets, conversion and
civil conspiracy – Kassab moves for dismissal under Chapter 27 of the
Texas Civil Practice & Remedies Code, which is denied by operation
of law .............................................................................................................12
Summary of Argument ........................................................................................... 13
Standard of Review ................................................................................................. 15
Argument................................................................................................................. 16
I. The trial court erred by failing to grant Kassab’s motion to dismiss ..... 16
A. Pohl’s claims against Kassab are based on, related to, or in
response to Kassab’s exercise of a protected right ...................... 17
1. Pohl’s claims against Kassab are based on, related to
or in response to Kassab’s right to free speech ................. 17
2. Pohl’s claims against Kassab are based on, related to
or in response to Kassab’s right to petition ....................... 20
3. Pohl’s claims against Kassab are based on, related to
or in response to Kassab’s right to associate ..................... 22
B. The commercial speech exception does not apply ....................... 23
C. Pohl did not establish a prima facie case against Kassab by
clear and specific evidence .......................................................... 30
1. The trial court abused its discretion by failing to
sustain Kassab’s evidentiary objections ............................ 30
a. The affidavit of Billy Shepherd and its attached
documents are not admissible ..................................... 31
b. The declaration of Pohl is conclusory and
constitutes no evidence ............................................... 33
c. With his evidence properly excluded, Pohl
presented no evidence to establish a prima facie
case against Kassab ..................................................... 39
2. Even if the evidence is considered, Pohl failed to
establish a prima facie case against Kassab ...................... 39
a. The conversion claim fails .......................................... 40
b. The theft of trade secrets claims fail ........................... 44
c. Because the underlying claims fail, the
conspiracy claim also fails .......................................... 48
D. Even if Pohl established a prima facie case, his claims fail
as a matter of law because they are barred by the statute of
limitations, the attorney immunity doctrine and res judicata....... 49
1. Pohl’s claims are barred by the statute of limitations ........ 49
2. Pohl’s claims are barred as a matter of law by the
attorney immunity doctrine ................................................ 52
3. Pohl’s claims are barred by res judicata. ........................... 55
II. The trial court abused its discretion when it declined to grant
Kassab’s request for attorney’s fees and sanctions ................................ 57
A. The trial court was required to award Kassab attorney’s fees
in defending the dismissed claims, which were established
here by the unchallenged evidence .............................................. 58
B. The trial court was mandated to award Kassab sanctions
against Pohl in an amount sufficient to achieve the deterrent
effect the statute requires ............................................................. 60
Conclusion and Prayer ............................................................................................ 61
Certificate of Compliance ....................................................................................... 63
Certificate of Service .............................................................................................. 63
Appendix ................................................................................................................. 64
INDEX OF AUTHORITIES
Cases Page(s)
3-C Oil Co. v. Modesta P'ship,
668 S.W.2d 741 (Tex. App. – Austin 1984, no pet.) 41, 42
Abatecola v. 2 Savages Concrete Pumping, LLC,
2018 Tex. App. LEXIS 4653, 2018 WL 3118601
(Tex. App.—Houston [14th Dist.] June 26, 2018, pet. filed) 23
Adams v. Starside Custom Builders, LLC,
547 S.W.3d 890 (Tex. 2018) 17
Alpert v. Crain, Caton & James, P.C.,
178 S.W.3d 398 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) 54
Avila v. Larrea,
394 S.W.3d 646 (Tex. App.—Dallas 2012, pet. denied) 18
Bank of Houston v. Thomas,
1989 Tex. App. LEXIS 2750, 1989 WL 131081
(Tex. App. – Houston [14th Dist.] 1989, writ denied) 41
Barr v. Resolution Tr. Corp.,
837 S.W.2d 627 (Tex. 1992) 55
Better Bus. Bureau of Metro. Hous., Inc. v. John Moore Servs., Inc.,
441 S.W.3d 345 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) 16
Beving v. Beadles,
2018 Tex. App. LEXIS 8540
(Tex. App. – Fort Worth, Oct. 18, 2018, no pet.) 21
Borden, Inc. v. Valdez,
773 S.W.2d 718 (Tex. App.—Corpus Christi 1989, no writ) 47
Burke v. Satterfield,
525 S.W.2d 950 (Tex. 1975) 32
Burns v. Rochon,
190 S.W.3d 263 (Tex. App. – Houston [1st Dist.] 2006, no pet.) 49
Cantey Hanger, LLP v. Byrd,
467 S.W.3d 477 (Tex. 2015) 52, 53, 54, 55
VII
Castleman v. Internet Money Ltd.,
546 S.W.3d 684 (Tex. 2018) 24, 26
Celtic Props., L.C. v. Cleveland Reg'l Med. Ctr., L.P.,
2015 Tex. App. LEXIS 8051, 2015 WL 4600661
(Tex. App.—Beaumont July 31, 2015, no pet.) 35
Chapa v. Stonehaven Dev., Inc.,
2013 Tex. App. LEXIS 10159
(Tex. App. – Corpus Christi, Aug. 15, 2013, no pet.) 36
Chavers v. Hall,
2011 U.S. Dist. LEXIS 63649, 2011 WL 2457943
(S.D. Tex. June 16, 2011) 57
Collins v. Collins,
2018 Tex. App. LEXIS 1932, 2018 WL 1320841
(Tex. App.—Houston [1st Dist.] Mar. 15, 2018, pet. denied) 21
Craig v. Tejas Promotions, LLC,
550 S.W.3d 287 (Tex. App.—Austin 2018, pet. filed) 19
Deaver v. Desai,
483 S.W.3d 668 (Tex. App.—Houston [14th Dist.] 2015, no pet.) 18
Dolcefino v. Randolph,
19 S.W.3d 906 (Tex. App. – Houston [14th Dist.] 2000, pet. denied) 34
Doran v. ClubCorp USA, Inc.,
2008 Tex. App. LEXIS 1250, 2008 WL 451879
(Tex. App.—Dallas Feb. 21, 2008, no pet.) 41
E.I. du Pont de Nemours & Co. v. Shell Oil Co.,
259 S.W.3d 800 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) 34
Elite Auto Body LLC v. Autocraft Bodywerks, Inc.,
520 S.W.3d 191 (Tex. App.—Austin 2017, pet. dism'd) 23
Essman v. Gen. Accident Ins. Co. of America,
961 S.W.2d 572, 574 (Tex. App. – San Antonio 1997, no pet.) 56
Exxon Corp. v. Emerald Oil & Gas Co.,
348 S.W.3d 194 (Tex. 2011) 51
VIII
Exxon Mobil Pipeline Co. v. Coleman,
512 S.W.3d 895 (Tex. 2017) 18
Fraud-Tech, Inc. v. Choicepoint, Inc.,
2006 Tex. App. LEXIS 3181, 2006 WL 1030189
(Tex. App.—Fort Worth Apr. 20, 2006, no pet.) 36
Freeman v. American Motorists Ins.,
53 S.W.3d 710 (Tex. App.—Houston [1st Dist.] 2001 no pet.) 32
Game Sys. v. Forbes Hutton Leasing, Inc.,
2011 Tex. App. LEXIS 4098
(Tex. App. – Fort Worth, May 26, 2011, no pet.) (mem. op.) 34
Gaskamp v. WSP USA, Inc.,
2018 Tex. App. LEXIS 10643, 2018 WL 6695810
(Tex. App.—Houston [1st Dist.] Dec. 20, 2018, no pet. h.) 16, 19, 22, 39
Glatzer v. Skilling,
2017 U.S. Dist. LEXIS 112782 (S.D. Tex. Feb. 23, 2017) 57
Grant v. Pivot Tech. Sols., Ltd.,
556 S.W.3d 865 (Tex. App.—Austin 2018, pet. filed) 27
Hebisen v. State,
615 S.W.2d 866 (Tex. Civ. App.—Houston [1st Dist.] 1981, no writ) 41
Hersh v. Tatum,
526 S.W.3d 462, 467 (Tex. 2017) 27
Highland Capital Mgmt., LP v. Looper Reed & McGraw, P.C.,
2016 Tex. App. LEXIS 442, 2016 WL 164528
(Tex. App.—Dallas Jan. 14, 2016, pet. denied) 53, 54
Humphreys v. Caldwell,
888 S.W.2d 469 (Tex. 1994) 31
In re Bass,
113 S.W.3d 735 (Tex. 2003) 45
In re Cauley,
437 S.W.3d 650 (Tex. App.—Tyler 2014, orig. proceeding) 46
In re George,
28 S.W.3d 511 (Tex. 2000) 40
In re Ginther,
2008 Bankr. LEXIS 2624 (Bankr. S.D. Tex. Aug. 29, 2008) 47
In re Higby, 414 S.W.3d 771
(Tex. App.—Houston [1st Dist.] 2013, orig. proceeding) 31
In re Lipsky,
460 S.W.3d 579 (Tex. 2015) 15
In re McCann,
422 S.W.3d 701 (Tex. Crim. App. 2013) 41
James v. Calkins,
446 S.W.3d 135 (Tex. App.—Houston [1st Dist.] 2014, pet. denied) 21, 39
Jim Walter Homes, Inc. v. Foster,
593 S.W.2d 749 (Tex. Civ. App. – Eastland 1979, no writ) 47
Jonalstem, Ltd. v. Corpus Christi Nat'l Bank, N.A.,
923 S.W.2d 701 (Tex. App.—Corpus Christi 1996, writ denied) 56
Lippincott v. Whisenhunt,
462 S.W.3d 507 (Tex. 2015) 16
MacFarland v. Le-Vel Brands LLC,
Tex. App. LEXIS 2569, 2017 WL 1089684
(Tex. App.—Dallas Mar. 23, 2017, no pet.) 25
Mayes v. Stewart,
316 S.W.3d 715 (Tex. App.—Houston [14th Dist.] 2010, no pet.) 49
McCollum v. Bank of N.Y. Mellon Tr. Co.,
481 S.W.3d 352 (Tex. App.—El Paso 2015, no pet.) 35
Methodist Hosp. v. Zurich Am. Ins. Co.,
329 S.W.3d 510 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) 38
Miller Weisbrod, L.L.P. v. Llamas-Soforo,
511 S.W.3d 181 (Tex. App. El Paso 2014, no pet.) 27, 28
Mission Wrecker Serv., S.A. v. Assured Towing, Inc.,
2017 Tex. App. LEXIS 7226, 2017 WL 3270358
(Tex. App.—San Antonio Aug. 2, 2017, pet. denied) 31
Moldovan v. Polito,
2016 Tex. App. LEXIS 8283, 2016 WL 4131890
(Tex. App.—Dallas Aug. 2, 2016, no pet.) 25
Moorehouse v. Chase Manhattan Bank,
76 S.W.3d 608 (Tex. App. – San Antonio 2002, no pet.) 43
Morgan v. Clements Fluids S. Tex., LTD.,
2018 Tex. App. LEXIS 9061, 2018 WL 5796994
(Tex. App.—Tyler Nov. 5, 2018, no pet. h.) 19
MVS Int'l Corp. v. Int'l Advert. Sols., LLC,
545 S.W.3d 180 (Tex. App.—El Paso 2017, no pet.) 23
Nat. Gas Pipeline Co. of Am. v. Justiss,
397 S.W.3d 150 (Tex. 2012) 38
NCDR, L.L.C. v. Mauze & Bagby, PLLC,
745 F.3d 742 (5th Cir. 2014) 27, 28, 29
Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd.,
416 S.W.3d 71 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) 23, 24
Plas-Tex, Inc. v. Jones,
2000 Tex. App. LEXIS 3188
(Tex. App. – Austin, May 18, 2000, pet. denied) (mem. op.) 38
Porter-Garcia v. Travis Law Firm, P.C.,
564 S.W.3d 75 (Tex. App.—Houston [1st Dist.] 2018, pet. denied) 21
Ramon v. Dow,
2009 Tex. App. LEXIS 1450, 2009 WL 508427
(Tex. App.—Houston [14th Dist.] Mar. 3, 2009, no pet.) 43
Resolution Tr. Corp. v. H, P.C.,
128 F.R.D. 647 (N.D. Tex. 1989) 41
Rhoades v. Prudential Leasing Corp.,
413 S.W.2d 404 (Tex. Civ. App. – Austin 1967, no writ) 56
Ryland Group, Inc. v. Hood,
924 S.W.2d 120 (Tex. 1996) 33
San Antonio & A. P. R. Co. v. Smith,
171 S.W. 282 (Tex. Civ. App. 1914) 43
Schimmel v. McGregor,
438 S.W.3d 847 (Tex. App.—Houston [1st Dist.] 2014, pet. denied) 26, 30, 58
Serafine v. Blunt,
2017 Tex. App. LEXIS 4606, 2017 WL 2224528
(Tex. App.—Austin May 19, 2017, pet. denied) 61
Sherman v. Boston,
486 S.W.3d 88 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) 41
Stephens v. Precision Drilling Oilfield Servs. Corp.,
2013 Tex. App. LEXIS 5700, 2013 WL 1928797
(Tex. App.—Houston [1st Dist.] May 9, 2013, no pet.) 33
Stewart Abstract Co. v. Judicial Comm'n of Jefferson County,
131 S.W.2d 686 (Tex. Civ. App. – Beaumont 1939, no writ) 47
Stewart & Stevenson Servs. v. Serv-Tech, Inc.,
879 S.W.2d 89 (Tex. App. – Houston [14th Dist.] 1994, writ denied) 45
Stroud Prod., L.L.C. v. Hosford,
405 S.W.3d 794 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) 40
Sullivan v. Abraham,
488 S.W.3d 294 (Tex. 2016) 58, 61
Toth v. Sears Home Improvement Products, Inc.,
557 S.W.3d 142 (Tex. App.—Houston [14th Dist.] 2018, no pet.) 25
Trammel Crow Co. No. 60 v. Harkinson,
944 S.W.2d 631 (Tex. 1997) 48
Travelers Ins. Co. v. Joachim,
315 S.W.3d 860 (Tex. 2010) 55
U Haul Int'l, Inc. v. Waldrip,
380 S.W.3d 118 (Tex. 2012) 31
Urquhart v. Calkins, 2018 Tex. App. LEXIS 5145, 2018 WL 3352919
(Tex. App.—Houston [1st Dist.] July 10, 2018, no pet. h.) 59, 61
Ventling v. Johnson,
466 S.W.3d 143 (Tex. 2015) 59
Watson v. Hardman,
497 SW3d 601 (Tex. App. – Dallas 2016, no pet.) 20
XII
Youngkin v. Hines,
546 S.W.3d 675 (Tex. 2018) 15, 52, 54
Texas Statutes
Texas Civil Practice & Remedies Code
16.003(a) 49, 51
16.010(a) 49, 51
27.001(1) 17, 18
27.001(2) 19, 21, 22
27.001(3) 17
27.001(4) 20
27.001(7) 17, 19
27.005(a) 2
27.005(b) 15, 17
27.005(c) 15, 30
27.005(d) 15, 49, 51
27.006(a) 16
27.008(a) 2, 12
27.009(a) 16, 57, 58, 60
27.010(b) 15, 23
134A.002(3) 44
134A.002(6) 46
134A.004(a) 44
Texas Penal Code
38.12 4
Texas Rules
Texas Rule of Evidence
101 32
XIII
602 31
803 32
902 33
Other
Texas Disciplinary Rule of Professional Conduct
1.15(d) 41
8.03(a) 11
XIV
RECORD REFERENCES
__CR__ Clerk Record, the first number is the volume, the
second number is the page number.
__3SCR__ Third Supplemental Clerk Record, the first number is
the volume, the second number is the page number.
__RR__ Reporter Record, the first number is the volume and
the second number the page number.
App. Tab ___ Documents in the Appendix, organized by lettered
Tabs.
STATEMENT OF CASE
Nature of the case. Pohl1 is a lawyer who sued Kassab2 and others3 for
theft of trade secrets, conversion and civil conspiracy.
App. Tab 1; 1CR4-14.
Trial court: 189th Judicial District Court of Harris County, Texas;
the Honorable Bill Burke.4
Course of proceedings. Kassab moved to dismiss the claims pursuant to the
Texas Citizens Participation Act, and promptly
scheduled a hearing on the motion. 1CR62-679;
3SCR6-90;1RR1-45.
Trial court’s disposition. The trial court failed to rule on the motion within 30
days, as required by statute, TEX. CIV. PRAC. & REM.
CODE § 27.005(a), so the motion was denied by
operation of law. Id. at § 27.008(a).
1 Appellees Michael Pohl and Law Office of Michael A. Pohl, PLLC.
2 Appellants Lance Christopher Kassab and Law Offices of Lance Christopher Kassab, PC.
3 Appellants Tina Nicholson, Baker Nicholson, LLP d/b/a Baker Nicholson Law Firm, Scott Favre,
Scott M. Favre Public Adjuster, LLC and Precision Marketing Group, LLC and nonparties F.
Douglas Montague III and Montague Pittman & Varnado, P.A.
4 Judge Burke was replaced on January 1, 2019 by Judge Scot Dollinger.
ISSUES PRESENTED
Issue 1: Did the trial court err by failing to grant Kassab’s motion
to dismiss pursuant to Chapter 27 of the Texas Civil
Practice & Remedies Code?
• Did the trial court err by impliedly concluding that
Pohl’s claims against Kassab did not fall within the
purview of Chapter 27 of the Texas Civil Practice &
Remedies Code?
• Did the trial court err by impliedly applying the
commercial speech exception?
• Did the trial court abuse its discretion by impliedly
overruling Kassab’s objections to Pohl’s evidence?
• Did the trial court err by impliedly concluding that
Pohl established a prima facie case against Kassab
even if Pohl’s evidence was not excluded?
• Did the trial court err by impliedly concluding that
Kassab did not establish that Pohl’s claims are barred
by attorney immunity, statute of limitations or res
judicata?
Issue 2: If the trial court erred by not dismissing one or more of
Pohl’s claims against Kassab, did the trial court abuse its
discretion by declining to award Kassab attorney’s fees and
sanctions when those fees are mandatory under the statute?
STATEMENT OF FACTS
Pohl is sued by Mississippi “runners” who expose his illegal and
unethical barratry scheme.
In October 2014, three Mississippi residents, Scott Walker (“Walker”), Kirk
Ladner (“Ladner”) and Steve Seymour (“Seymour”), and their related entities,
including Precision Marketing Group, LLC (“Precision”), filed suit against Houston
lawyer Michael Pohl (“Pohl”)5 and others in Mississippi federal court (the
“Mississippi Litigation”).6 1CR117-168. There, Precision, Walker, Ladner and
Seymour (sometimes, the “runners”) alleged that: (1) they had a joint venture with
Pohl to sign up clients with economic loss claims stemming from the BP Deepwater
Horizon oil spill and clients involved in tragic auto accidents; (2) that they
successfully obtained these clients for Pohl; and (3) that Pohl breached their
agreement by not paying them their agreed-upon fee, including their agreed share of
Pohl’s attorney’s fees for referring these clients to Pohl. 1CR148, 153.
The evidence presented in the Mississippi Litigation established that Pohl
engaged in barratry. See TEX. PEN. CODE § 38.12 (defining barratry generally as the
improper solicitation of clients). During that litigation, Walker testified that Pohl
5 Sometimes “Pohl” will also refer to Law Office of Michael A. Pohl, PLLC.
6 Cause No. 14-cv-381-KS-JCG; Scott Walker, et al. v. Michael A. Pohl, et al.; In the United States
District Court for the Southern District of Mississippi, Southern Division.
retained him and Precision to “provide marking services to auto accident victims[.]”
1CR171. Walker testified that although he and Pohl called it “marketing services”
or “marketing money,” it was “clear to [him] it was barratry.” 1CR178. In fact,
Walker considered himself and his company “a pass-through for barratry money.”
1CR179. All told, the runners received over $5 million in “barratry pass-through
money” from Pohl and other lawyers to solicit potential clients, both auto-accident
victims and those involved in the BP litigation. 1CR176. The runners used this
money to pay contract workers to solicit clients. 1CR179. The runners would locate
and instruct contract workers on how to accomplish the solicitation. 1CR177. The
runners trained “40 or 50 people” on how to “go out and solicit contracts” on behalf
of Pohl. 1CR179.
Walker and his team of runners at Precision were first retained by Pohl to
“recruit clients” with losses resulting from the BP Deepwater Horizon oil spill.
1CR183. When that litigation dwindled, Pohl shifted his focus to significant auto
accident cases. 1CR142-147. To accomplish this task, individuals at Precision would
receive “Google alerts” or leads from Pohl on recent catastrophic auto accidents. Id.
Walker testified that he, Ladner, or the runners at Precision would go to the victims
of the auto accident to “do marketing” by letting them know “there were attorneys
[who] could help.” 1CR185. In exchange, these runners where paid between $2,500
and $5,000 to solicit the client. 1CR192-193. These payments flowed from Pohl
through a company set up for this purpose, “Helping Hands Financing,” to Precision,
to each individual runner. 1CR194-201, 211. Walker simply submitted to Pohl the
amount that Precision paid its runners and Pohl reimbursed Precision. 1CR202.
One of the runners, Magdalena Santana (“Santana”), testified to the barratry
in an affidavit filed in the Mississippi Litigation. 1CR205-240. She testified that Pohl
sent her on “dozens and dozens of car wreck cases all over the country” to solicit
clients on his behalf. 1CR208. Pohl would email Santana the link of news coverage
depicting the accident and ask her “to go to the victim or the victim’s family and try
to get them to sign up with him.” Id. Pohl offered to pay Santana “$5,000 per case
that [she] signed, plus a percentage of his attorney’s fees.” 1CR209. Santana was
advised by Pohl to “be persistent even if the family ... rejected [her].” Id. Santana
was instructed by Pohl to “approach the victims and their families while they were
vulnerable, in the emergency room, their hospital rooms or at the funerals.” Id.
(emphasis added). Pohl told Santana that minorities “were especially vulnerable
since they tended not to know that the law prohibited barratry.” Id. According to
Pohl, they “were easier to sign up.” Id.
Pohl paid Santana “money to give to the victims or their families” but “only
if they agreed to sign a Pohl representation contract.” 1CR208. Pohl advised Santana
that the money was a “foot in the door,” but instructed Santana not to mention that
she was there on behalf of a lawyer “until after they agreed to take the money.”
1CR210-211. “If the client agreed to hire Pohl, then [Santana] was to have the client
sign a ‘Helping Hands’ contract.” Id. Pohl would then give Santana the money to
pay the client “from his own Helping Hands company.” Id. When Santana
questioned this, Pohl told Santana that it “was illegal for him to pay [her] directly
for cases, and that’s why the money had to go through some company.” 1CR210.
Santana further confirmed the barratry in her deposition. 1CR248-264. She
testified that she was hired by Pohl to solicit auto accident cases, the first one an
accident where a woman and her unborn child lost their lives. 1CR249. Santana was
instructed by Walker, who was instructed by Pohl, to personally visit the mother of
the deceased and sign her up to sue the tire manufacturer and, if successful, Pohl
would pay her $5,000. 1CR249-250. Santana visited the funeral of the deceased and
got the family to feel comfortable with her. Id. Although the mother was grieving,
Pohl told Santana: “take no prisoners, this is a cut throat business, you get in there
and you do whatever it takes to get this client.” 1CR251. The solicitation was
successful after Pohl gave Santana $2,000 to “give to the client to convince her into
signing over with the firm.” 1CR252.
Pohl later paid Santana to sign an agreement not to reveal that Pohl committed
any wrongdoing or criminal or unethical conduct. 1CR261. Santana testified that
Pohl paid her $50,000 cash to sign this agreement, which was delivered to her in
Florida by Pohl’s paralegal, Edgar Jaimes (“Jaimes”), in three bags marked “trick or
treat.” 1CR254-259. Jaimes confirmed this under oath, 1CR243-244, and this
criminal act remains undisputed. Santana signed the statement and received the cash,
although she believed she was “forced to sign” it while “under duress.” 1CR261-
262.
Another runner, Kenneth Talley (“Talley”), testified in the Mississippi
Litigation about the barratry. Talley solicited over 20 auto accident cases for Pohl,
including two families who hired Kassab to sue Pohl for barratry. 1CR296. Talley
testified that he was first hired in relation to BP claims to find “folks that lost money
due to the oil spill” and “sign them up” and “get a fee for it.” 1CR280. Talley
solicited and signed up for Pohl and his partner more than 800 BP claims, and was
paid between $75 and $350 per client he referred. 1CR280-282.
Talley eventually transitioned to soliciting auto accident victims, “calling on
folks that had bad accidents.” 1CR283. Talley recalls that the first client he solicited
was in “the hospital in intensive care.” Id. Talley always carried with him up to
$1,000 in cash to pay accident victims to “help them with problems” and influence
them to hire Pohl, to be paid only after they “were signed up.” 1CR284. Talley would
advise the victims that he had an attorney who could help them, and that attorney
was Pohl. 1CR287. For each auto accident case he solicited, Talley was paid a fee
of $1,400 plus his expenses by Pohl, through Walker and Precision. 1CR287-288.
On some cases, Talley was to receive a portion of Pohl’s attorney’s fees, and even
discussed with Pohl the “percentage of settlements” he was to receive on the back
side. 1CR298-302. When asked whether Pohl knew he was getting paid to “contact
vehicle accident victims,” Talley responded, “the money was coming from Edgar
[Jaimes] who worked for him.” 1CR301. Although his paycheck was from Precision,
“the funding came by way of Edgar [Jaimes].” Id. Talley testified that both he and
Pohl knew what they were doing was illegal. 1CR293-294.
Precision transfers and assigns its assets and claims against Pohl to
Favre – Pohl counterclaims for conversion in the Mississippi
Litigation but settles when he cannot obtain summary dismissal.
In May 2016, during the Mississippi Litigation, an insurance adjuster named
Scott Favre (“Favre”) purchased Precision and all the company’s assets, including
Precision’s claims against Pohl in the Mississippi Litigation. 1CR640; 3SCR137.
Favre and Precision were represented in the Mississippi Litigation by Texas lawyer,
Tina Nicholson, and her firm, Baker Nicholson, LLP (“Nicholson”). 1CR8, 110,
342. Pohl asserted counterclaims in the Mississippi Litigation alleging that Walker
and Precision (and other unknown defendants and co-conspirators) converted his
property. 3SCR16-18.
Most notably, Pohl moved to dismiss the claims against him, admitting that
the agreements between him and the runners were illegal and unenforceable.
1CR336-339. Pohl argued that under both Texas and Mississippi law “it is illegal
for a non-lawyer to accept or agree to accept money to improperly solicit clients for
a lawyer.” 1CR338. The Mississippi federal court rejected Pohl’s contention, stating
that the agreements to solicit clients would only be a violation of Texas law and
disciplinary rules, which did not apply to the runners who were Mississippi residents.
1CR349-350. After failing to obtain summary dismissal, Pohl settled the Mississippi
Litigation with all parties, including Favre and Precision, hoping to forever conceal
his barratry operation. 1CR353-354.
Kassab, Favre, Precision and Nicholson associate to expose Pohl’s
illegal and unethical barratry and more than 400 victims of Pohl’s
barratry scheme associate with Kassab to petition and file civil claims
and grievances against Pohl.
Kassab is a licensed Texas attorney who has been practicing law for almost
twenty-five years. 1CR109. Kassab graduated from law school with honors and was
editor-in-chief of law review. Id. Kassab is a former intern and briefing attorney for
this Court and a former intern for the Texas Supreme Court. Id. For more than twenty
years, Kassab’s practice has focused primarily on representing victims of legal
malpractice and publicly exposing attorney misconduct. Id.
Kassab was tipped off to the allegations in the Mississippi Litigation by an
acquaintance, F. Douglas Montague of the Mississippi law firm Montague Pittman
& Varnado, PA (“Montague”), who was also an acquaintance of Favre and
Nicholson. 1CR109-110. Kassab obtained information related to the Mississippi
Litigation from the federal court’s online system, PACER. 1CR 110. Kassab also
10
associated Precision and its owner, Favre, and its counsel, Nicholson, and obtained
information from them, including the names and addresses of Pohl’s former clients
or prospective clients. 1CR109-110. With this information, Kassab sent written
notifications to individuals he believed were victims of unethical conduct. 1CR110.
Hundreds of individuals responded, indicating they had been personally solicited to
hire Pohl relating to their auto accident or BP claims and requested representation.
Id. Kassab agreed to represent these clients, and more than 400 individuals hired
Kassab to represent them in barratry claims against Pohl. Id.
Kassab filed four petitions on behalf of these barratry victims in Harris
County, Texas (the “barratry lawsuits”). 1CR379-576. These petitions
communicated matters of public concern: that Pohl conspired to commit unethical
solicitation known as barratry. See id.; see also 1CR110. After reviewing the
evidence obtained from the Mississippi Litigation, Kassab believed he had a duty to
file a grievance against Pohl,7 and he did. Id. Kassab also filed a grievance against
Pohl on behalf of one of his clients. Id. In the grievances, Kassab and his client
expressed matters of public concern relating to Pohl’s legal services in the market
7 See TEX. DISC. R. PROF’L COND. 8.03(a) (except in circumstances which do not apply here, “a
lawyer having knowledge that another lawyer has committed a violation of applicable rules of
professional conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness
or fitness as a lawyer in other respects, shall inform the appropriate disciplinary authority.”).
11
place and petitioned the State Bar of Texas to reprimand and discipline Pohl in order
to protect the citizens of Texas and other states. See id.; see also 1CR 578-638.
Pohl sues Kassab and others for theft of trade secrets, conversion and
civil conspiracy – Kassab moves for dismissal under Chapter 27 of the
Texas Civil Practice & Remedies Code, which is denied by operation
of law.
Pohl sued Kassab, Precision, Nicholson, Favre and Montague, alleging breach
of contract, theft of trade secrets, conversion and civil conspiracy. App. Tab 1;
1CR4-14. Pohl alleged that these parties were “acting in combination with the agreed
objective” to misappropriate his trade secrets and convert the marketing lists and
attorney-client contracts that Precision obtained. 1CR9, 13. Pohl alleged Favre and
Precision, with Nicholson’s assistance, converted this property and provided it to
Kassab and Montague in order to convince Pohl’s former clients “to bring cases
against Pohl for alleged barratry and other claims.” 1CR9-10.
Kassab denied the allegations and immediately moved to dismiss the lawsuit
pursuant to the Texas Citizens Participation Act (“TCPA”), Chapter 27 of the Texas
Civil Practice & Remedies Code. 1CR75-679; 3SCR6-90. Nicholson and Favre then
filed their own motions to dismiss based on the TCPA. 2CR 867-880; 3SCR136-
223. A timely hearing was conducted on Kassab’s motion to dismiss. 1RR. The trial
court did not rule on the motion within thirty days and the motion was denied by
operation of law. TEX. CIV. PRAC. & REM. CODE § 27.008(a).
12
SUMMARY OF ARGUMENT
The trial court erred by impliedly denying Kassab’s motion to dismiss because
Kassab demonstrated that the claims against him for alleged conversion, theft of
trade secrets and conspiracy are based on, related to, or in response to Kassab’s
exercise of a right protected by the TCPA, and that Pohl’s allegations do not fall
within the commercial speech exception. Because the TCPA applied, Pohl was
required to establish a prima facie case against Kassab but failed to do so.
The trial court also abused its discretion when it impliedly declined to sustain
Kassab’s objections to Pohl’s evidence. The affidavit of Pohl’s counsel was not
admissible because it did not meet the requirements of an affidavit and the attached
documents were not authenticated as business records, and they contained hearsay.
The declaration of Pohl was conclusory, which constitutes no evidence at all. With
this evidence properly excluded, the motion to dismiss should have been granted.
However, even if the evidence was considered, Pohl still failed to establish a
prima facie case against Kassab because Pohl did not own the property that he says
Kassab allegedly converted, and because Pohl presented no evidence that Kassab
unlawfully and without authorization assumed control of his property or acquired
this property by improper means. Additionally, Pohl presented no evidence that he
demanded return of the property from Kassab or that Kassab refused to return it.
13
Moreover, the materials at issue are not trade secrets. Because these underlying
claims fail, Pohl’s conspiracy claim also fails.
Even if Pohl established a prima facie case, his claims fail as a matter of law
because they are barred by the statute of limitations, the attorney immunity doctrine,
and res judicata. Pohl’s claims are barred by limitations because Pohl testified under
oath that the basis of his claims occurred in 2014, but he neglected to bring suit
within three years. Pohl claims that Kassab used stolen information to determine
which clients had been illegally solicited by Precision to hire Pohl, and then brought
barratry claims against Pohl on behalf of these clients. Under these allegations, these
actions fall squarely within the attorney immunity doctrine. Additionally, Pohl’s
claims against Kassab are barred by res judicata because Pohl brought claims against
Kassab’s alleged co-conspirators in earlier litigation for the same conduct alleged
here, and that litigation resulted in a final judgment.
Finally, the trial court abused its discretion when it failed to grant Kassab’s
request for attorney’s fees and sanctions. The TCPA requires an award of reasonable
attorney’s fees and sanctions to the successful movant. Kassab presented
unchallenged evidence that established the reasonable amount of attorney’s fees
Kassab had incurred and would likely incur on appeal. Because the trial court
improperly denied the motion to dismiss, it abused its discretion when it declined to
award Kassab attorney’s fees and sanctions.
14
STANDARD OF REVIEW
The TCPA “protects citizens who petition or speak on matters of public
concern from retaliatory lawsuits that seek to intimidate or silence them.” In re
Lipsky, 460 S.W.3d 579, 584 (Tex. 2015) (orig. proceeding). The enforcement
vehicle is a motion to dismiss for “any suit that appears to stifle the defendant’s”
exercise of those rights. Id. (emphasis added). Reviewing a TCPA motion to dismiss
requires a three-step analysis. See Youngkin v. Hines, 546 S.W.3d 675, 679-80 (Tex.
2018).
(1) The moving party must show that the action against it is based on the
exercise of the rights as defined in the TCPA. See TEX. CIV. PRAC. & REM. CODE §
27.005(b).
(2) If the movant meets its burden, the nonmoving party must establish a
prima facie case for each element of its claim, Id. § 27.005(c), or that one of several
exemptions to the TCPA apply, such as the commercial speech exemption. See id. §
27.010(b).
(3) If the nonmoving party satisfies that requirement, the burden shifts back
to the movant to prove each element of a defense. Id. § 27.005(d).
If dismissal is appropriate, the trial court must award the moving party “court
costs, reasonable attorney’s fees, and other expenses incurred in defending against
15
the legal action,” as well as sanctions “sufficient to deter the party who brought the
legal action from bringing similar actions[.]” Id. at § 27.009(a).
The Court must conduct a de novo review of the trial court’s determinations
that the parties met or failed to meet their burdens of proof under the TCPA. See
Gaskamp v. WSP USA, Inc., No. 01-18-00079-CV, 2018 Tex. App. LEXIS 10643,
2018 WL 6695810, at *26 (Tex. App.—Houston [1st Dist.] Dec. 20, 2018, no pet.
h.); Better Bus. Bureau of Metro. Hous., Inc. v. John Moore Servs., Inc., 441 S.W.3d
345, 353 (Tex. App.—Houston [1st Dist.] 2013, pet. denied). The Court must
consider the pleadings and evidence on which the claim or defense is based to
determine whether the statute is implicated. See TEX. CIV. PRAC. & REM. CODE §
27.006(a). To the extent resolution of this appeal turns on construction of the TCPA,
the Court must also review these issues de novo. Lippincott v. Whisenhunt, 462
S.W.3d 507, 509 (Tex. 2015).
ARGUMENT
I. The trial court erred by failing to grant Kassab’s motion to dismiss.
Pohl’s claims against Kassab fall squarely within the TCPA and the
commercial speech exception does not apply. Because Pohl failed to establish a
prima facie case against Kassab and because Pohl’s claims against Kassab were
barred as a matter of law, the trial court erred in failing to grant Kassab’s motion to
dismiss.
16
A. Pohl’s claims against Kassab are based on, related to, or in
response to Kassab’s exercise of a protected right.
For Pohl’s claims against Kassab to fall within the TCPA, Kassab was
required to demonstrate by a preponderance of the evidence (which may include
Pohl’s pleadings) that Pohl’s claims against him where based on, related to, or is in
response to Kassab’s right of free speech, right to petition, or right of association.
See TEX. CIV. PRAC. & REM. CODE § 27.005(b). Kassab met this burden.
1. Pohl’s claims against Kassab are based on, related to
or in response to Kassab’s right to free speech.
Kassab established that Pohl’s claims against him were based on, related to or
in response to Kassab’s right to free speech. See TEX. CIV. PRAC. & REM. CODE §
27.001(3). The TCPA defines the exercise of the right of free speech as a
“communication made in connection with a matter of public concern.” TEX. CIV.
PRAC. & REM. CODE § 27.001(3). A “matter of public concern” includes an issue
related to “economic, or community well-being … or a good, product, or service in
the marketplace.” Id. § 27.001(7)(A). A “communication” is defined as the “making
or submitting of a statement or document in any form or medium including oral,
visual, written, audiovisual, or electronic.” Id. at § 27.001(1). The plain language of
this definition extends the application of the TCPA to “[a]lmost every imaginable
form of communication, in any medium.” Adams v. Starside Custom Builders, LLC,
547 S.W.3d 890, 894 (Tex. 2018). Moreover, the TCPA does not require that the
17
communication be made publicly. See ExxonMobil Pipeline Co. v. Coleman, 512
S.W.3d 895, 900 (Tex. 2017) (“we determined that the TCPA’s plain language does
not require communication in public form”).
Pohl’s claims against Kassab for theft of trade secrets, conversion and civil
conspiracy are all based on, related to, or in response to Kassab’s “communications”
with Precision, Favre and Nicholson concerning Pohl’s legal services in the market
place and how Pohl’s clients were acquired through barratry. See 1CR9.
Communications concerning Pohl’s legal services, especially how Pohl acquired his
clients, are matters of public concern. See Deaver v. Desai, 483 S.W.3d 668, 673
(Tex. App.—Houston [14th Dist.] 2015, no pet.) (claim by blogger questioning the
lawyer’s ability to represent clients were “matters of public concern” under the
TCPA); Avila v. Larrea, 394 S.W.3d 646, 655-656 (Tex. App.—Dallas 2012, pet.
denied) (communication about a lawyer’s handling of cases was a matter of public
concern within the TCPA).
Moreover, the alleged transfer and exchange of Pohl’s purported trade secrets
and proprietary information required “communications,” or “the making or
submitting of a statement or document in any form or medium, including oral, visual,
written, audiovisual, or electronic.” See TEX. CIV. PRAC. & REM. CODE § 27.001(1).
Similarly, allegations that Kassab and others engaged in a scheme or conspired with
18
each other to misappropriate Pohl’s purported trade secrets8 also necessarily involve
“communications.” See id.; see also Craig v. Tejas Promotions, LLC, 550 S.W.3d
287, 296-97 (Tex. App.—Austin 2018, pet. filed) (determining that conspiring to
misappropriate trade secrets involved a TCPA communication).
All the alleged communications were made by individuals who “join[ed]
together to collectively express, promote, pursue, or defend common interests,” the
common interest being exposing Pohl’s unethical conduct as a lawyer licensed in the
State of Texas and the misuse of his legal services in the market place. See TEX. CIV.
PRAC. & REM. CODE § 27.001(2); see also Morgan v. Clements Fluids S. Tex., LTD.,
No. 12-18-00055-CV, 2018 Tex. App. LEXIS 9061, 2018 WL 5796994, *3 (Tex.
App.—Tyler Nov. 5, 2018, no pet. h.) (indicating that defendants’ sharing and use
of their former employers’ trade secrets were TCPA “communications”). The
alleged communications would have been made in connection with one of the listed
matters of public concern – a “service in the marketplace” – because the
communications related to Pohl’s legal services. See id. § 27.001(7)(E).
Accordingly, Pohl’s claims related to Kassab’s exercise of his right of free speech.
See Gaskamp, 2018 Tex. App. LEXIS 10643, at *12 (allegations that employees
conspired together to misappropriate employer’s trade secrets and confidential
8 See 1CR 4-6, 13-14.
19
information related to employees’ right of free speech because such claims “would
necessarily involve communications as defined by the TCPA.”).
2. Pohl’s claims against Kassab are based on, related to
or in response to Kassab’s right to petition.
Kassab also established that Pohl’s claims against him are based on, related
to, or is in response to Kassab’s right to petition. See TEX. CIV. PRAC. & REM. CODE
§ 27.001(4). The TCPA provides that “a communication in or pertaining to a judicial
proceeding” constitutes the exercise of the right to petition. Id. at § 27.001(4)(A)(i).
There is no requirement that the subject matter of the proceeding concern the
government or a public interest for the protection to apply. See Watson v. Hardman,
497 SW3d 601, 606 (Tex. App. – Dallas 2016, no pet.) (“legislature could have
qualified or limited the term ‘a judicial proceeding’ … but it did not.”).
Although Pohl’s claims for conversion, theft of trade secrets and conspiracy
do not arise out of the barratry lawsuits and grievances, Pohl’s claims against Kassab
are at least “related to” or “concern” these lawsuits and grievances. See 1CR9-10
(stating Kassab allegedly used Pohl’s confidential trade secrets to communicate with
Pohl’s former clients “to act as plaintiffs” and “to bring cases against Pohl for alleged
barratry and other claims.”); 2CR 899 (stating Kassab continues “to use Pohl’s
information and property to solicit cases against Pohl.”). Pohl’s own allegations
against Kassab are sufficient to demonstrate that the claims against Kassab are
20
related to Kassab’s right to petition as broadly defined by the TCPA. See Porter-
Garcia v. Travis Law Firm, P.C., 564 S.W.3d 75, 85 (Tex. App.—Houston [1st
Dist.] 2018, pet. denied) (concluding TCPA protections encompass “legal action”
that is factually predicated upon or relates to alleged conduct that would fall within
the TCPA’s definition of the exercise of the right to petition); Collins v. Collins, No.
01-17-00817-CV, 2018 Tex. App. LEXIS 1932, 2018 WL 1320841, at *12-*13
(Tex. App.—Houston [1st Dist.] Mar. 15, 2018, pet. denied) (mem. op.) (ex-wife’s
claims against administrator of ex-husband’s estate for fraud and conversion based
on alleged misrepresentation or nondisclosure of assets during divorce were
protected under the TCPA because deceased “was exercising his right to petition
when he served the affidavit and inventory in the divorce”).9
3. Pohl’s claims against Kassab are based on, related to
or in response to Kassab’s right to associate.
Kassab also established that Pohl’s claims against him where based on, related
to, or is in response to Kassab’s right to associate. See TEX. CIV. PRAC. & REM. CODE
§ 27.001(2). “Exercise of the right of association” is “a communication between
individuals who join together to collectively express, promote, pursue, or defend
9 See also James v. Calkins, 446 S.W.3d 135, 147-48 (Tex. App.—Houston [1st Dist.] 2014, pet.
denied) (claims for fraud against attorney and client arising out of prior litigation were protected
as the exercise of the right to petition); Beving v. Beadles, No. 02-17-00223-CV, 2018 Tex. App.
LEXIS 8540, at *12 (Tex. App. – Fort Worth, Oct. 18, 2018, no pet.) (concluding deposition and
affidavit testimony provided in the underlying lawsuit constituted a communication made in a
judicial proceeding and was an exercise of the right to petition).
21
common interests.” Id. The right to associate protects communications that do not
relate to a public purpose, including communications alleged to be wrongful, such
as the sharing of purportedly confidential information for an improper purpose. See
Gaskamp, 2018 Tex. App. LEXIS 10643, at *33 (allegations that defendants
“secretly conspired among themselves” to “devise and implement wrongful and
unlawful schemes” to misappropriate trade secrets fell within purview of right to
associate).
Pohl alleges that Kassab, Montague, Nicholson and Favre were “acting in
combination with the agreed objective” to allegedly misappropriate his trade secrets
and confidential information in order to solicit clients. 2CR901. More specifically,
Pohl alleges that Favre and Nicholson provided Kassab “with information from
Precision’s files, including the names and addresses of Pohl’s former clients or
prospective clients,” and that Kassab then used this information “to contact and
solicit Pohl’s clients/prospective clients.” 2CR896-897. Therefore, Pohl’s own
pleadings demonstrate that his claims against Kassab fall squarely within the broad
definition of the right to associate. See Gaskamp, 2018 Tex. App. LEXIS 10643, at
*32 (concluding allegation that defendants induced parties, with whom plaintiff had
contracts, “to reduce” their business with the plaintiff and “sharing [the plaintiff’s]
confidential, proprietary, and trade secret information to interfere with these
22
prospective contracts and business relationships would necessarily involve
communications as defined by the TCPA.”).10
B. The commercial speech exception does not apply.
Pohl argues that even if his allegations against Kassab where based on, related
to, or is in response to Kassab’s protected rights, “the speech and conduct would fall
within the commercial speech exception in the statute.” 1CR694. The trial court
erred if it agreed with Pohl and relied on the commercial speech exception when it
impliedly denied the motion to dismiss.
The TCPA does not apply “to a legal action brought against a person primarily
engaged in the business of selling or leasing goods or services, if the statement or
conduct arises out of the sale or lease of goods, services … or a commercial
transaction in which the intended audience is an actual or potential buyer or
customer.” TEX. CIV. PRAC. & REM. CODE § 27.010(b) (emphasis added). The party
claiming this exception bears the burden of proof. See Newspaper Holdings, Inc. v.
10 See also Abatecola v. 2 Savages Concrete Pumping, LLC, No. 14-17-00678-CV, 2018 Tex. App.
LEXIS 4653, 2018 WL 3118601, at *19 (Tex. App.—Houston [14th Dist.] June 26, 2018, pet.
filed) (mem. op.) (concluding that interfering with customers would necessarily have required
communications to the customers and association, thus falling within the right to associate); Elite
Auto Body LLC v. Autocraft Bodywerks, Inc., 520 S.W.3d 191, 206 (Tex. App.—Austin 2017, pet.
dism'd) (holding the right of association applied to claims concerning theft of confidential
information); MVS Int'l Corp. v. Int'l Advert. Sols., LLC, 545 S.W.3d 180, 194 (Tex. App.—El
Paso 2017, no pet.) (explaining that, as statute is written, conspiracy claims would fall under
TCPA’s right of association).
23
Crazy Hotel Assisted Living, Ltd., 416 S.W.3d 71, 89 (Tex. App.—Houston [1st
Dist.] 2013, pet. denied).
The Texas Supreme Court has established a four-part test for applying the
commercial speech exemption:
(1) the defendant was primarily engaged in the business of selling or
leasing goods, (2) the defendant made the statement or engaged in the
conduct on which the claim is based in the defendant's capacity as a
seller or lessor of those goods or services, (3) the statement or conduct
at issue arose out of a commercial transaction involving the kind of
goods or services the defendant provides, and (4) the intended
audience of the statement or conduct were actual or potential customers
of the defendant for the kind of goods or services the defendant
provides.
Castleman v. Internet Money Ltd., 546 S.W.3d 684, 688 (Tex. 2018) (per curiam)
(emphasis added).
Pohl’s pleadings demonstrate why this exception does not apply. Pohl
repeatedly contends that Kassab’s alleged involvement in the transaction at issue led
to him providing legal services to new clients and filing barratry lawsuits against
Pohl. 1CR695-696 (stating Kassab “purchased Pohl’s list of clients and former
clients, together with the attorney fee contracts for the purpose of soliciting those
clients.”) 1CR695. But the commercial speech exemption is not triggered by conduct
that leads to the subsequent sale of services; the exemption applies only to the
conduct making up the sale of services. See Castleman, 546 S.W.3d at 688-89. In
other words, Pohl’s claims for conversion and theft of trade secrets do not arise out
24
of soliciting clients to further Kassab’s business. Because the solicitation occurred
after the alleged theft and conversion, Pohl’s claims do not “arise out of” any
commercial transaction involving Kassab’s usual business.
Additionally, Pohl is not suing Kassab for conduct “based upon” the legal
services that Kassab provided or anything Kassab did or said to his actual or potential
clients. Rather, Pohl is suing Kassab because Kassab allegedly “wrongfully
exercised dominion and control over Pohl’s property in contravention of Pohl’s
rights” and “willfully and maliciously misappropriated Pohl’s trade secrets by using
them without the express or implied consent of Pohl.” 1CR900-901. Because Pohl’s
claims do not arise “out of a commercial transaction involving the kind of goods or
services” that Kassab provides, the commercial exception does not apply. See
MacFarland v. Le-Vel Brands LLC, No. 05-16-00672-CV, 2017 Tex. App. LEXIS
2569, 2017 WL 1089684, at *9 (Tex. App.—Dallas Mar. 23, 2017, no pet.) (mem.
op.) (exemption not met because statement or conduct at issue was “not about”
defendant’s business of selling services).11
11 Moldovan v. Polito, No. 05-15-01052-CV, 2016 Tex. App. LEXIS 8283, 2016 WL 4131890,
(Tex. App.—Dallas Aug. 2, 2016, no pet.) (mem. op.) (internet posts were not exempted from
TCPA's protections because they were not about the defendant's business); Toth v. Sears Home
Improvement Products, Inc., 557 S.W.3d 142, 154 (Tex. App.—Houston [14th Dist.] 2018, no
pet.) (“Even before Castleman, courts have held that the exemption is not established unless the
challenged statement was ‘about’ the speaker's particular goods or services, or the speaker's
business of selling them.”).
25
Finally, the commercial exception requires the intended audience of the
conduct out of which Pohl’s claims arise to be “actual or potential customers” of
Kassab “for the kind of goods or services” that Kassab provides. Castleman, 546
S.W.3d at 688. The “audience” of the alleged conduct was Favre and Precision, who
Pohl alleges Kassab purchased his confidential information and trade secrets from.
See 1CR9; 2CR869 (“Favre and Precision, with the assistance of Nicholson, struck
a rich bargain; Kassab and Montague paid Favre $250,000.00 in cash together with
substantial bonuses.”). The exemption does not apply, and a seller of goods or
services may avail himself of the TCPA, “when he speaks of other goods or services
in the marketplace.” Castleman, 546 S.W.3d at 689 (emphasis added).
Here, Kassab is not in the business of purchasing marketing lists. As
recognized by Pohl, “Kassab is primarily engaged in the business of selling legal
services” to his clients. 2CR695. Moreover, there is no allegation by Pohl that Favre
and Precision are Kassab’s usual clients. Nor could there be, because neither Favre
nor Precision sought legal services from Kassab. See 1CR110 (describing the
relationship between the parties). Accordingly, Pohl failed to show that Kassab’s
alleged conduct arose from the provision of legal services to his clients. Therefore,
the commercial exception does not apply. See Schimmel v. McGregor, 438 S.W.3d
847, 858 (Tex. App.—Houston [1st Dist.] 2014, pet. denied) (holding exemption
inapplicable because the “ultimate intended audience” for the movant’s conduct was
26
the City of Galveston, and the movant, an attorney, “did not represent the City of
Galveston, nor was the City a “potential buyer or customer” of the movant’s legal
services).12
Pohl has cited two cases for his proposition that “Kassab’s solicitation of
Pohl’s clients and former clients falls squarely within the commercial exception to
the TCPA.” 1CR694 (citing Miller Weisbrod, L.L.P. v. Llamas-Soforo, 511 S.W.3d
181 (Tex. App. El Paso 2014, no pet.) and NCDR, L.L.C. v. Mauze & Bagby, PLLC,
745 F.3d 742 (5th Cir. 2014)). Pohl’s reliance on these two cases is misplaced.
First, Pohl is not suing Kassab for soliciting clients; he is suing Kassab for
alleged theft of property and trade secrets. 1CR4; 2CR890. The trial court was
required to disregard any characterization of Pohl’s claims against Kassab and look
to Pohl’s pleadings to determine the nature of the action. See Hersh v. Tatum, 526
S.W.3d 462, 467 (Tex. 2017) (“the trial court was obliged to consider the [plaintiff’s]
pleadings” and these pleadings are “the best and all-sufficient evidence of the nature
of the action.”) (internal quotations omitted). “When it is clear from the plaintiff's
pleadings that the action is covered by the [TCPA], the defendant need show no
more.” Id. Pohl’s pleadings that Kassab allegedly misappropriated his trade secrets
12 See also Grant v. Pivot Tech. Sols., Ltd., 556 S.W.3d 865, 888-889 (Tex. App.—Austin 2018,
pet. filed) (exception inapplicable because while the alleged conduct at issue – a breach of a
purchase agreement – arose out of the agreement, the plaintiff failed to show that the agreement
involved computer-related services like the defendant provides or that the audience of the conduct
was an actual or potential customer of defendant).
27
is the basis of his action, not the solicitation of clients. See 1CR4 (“Defendants
engaged in a scheme pursuant to which they illegally obtained, maintained, and used
trade secrets and other confidential information and property belonging to Pohl.”).
Accordingly, Pohl’s reliance on Miller Weisbrod and Mauze is misplaced.
Miller Weisbrod involved a lawsuit for slander and defamation against a law firm by
an ophthalmologist contending television commercials that encouraged former
patients of ophthalmologist to contact the law firm if they were left blind by
treatment. Miller Weisbrod, 511 S.W.3d at 183-84. The law firm moved to dismiss
pursuant to the TCPA and the ophthalmologist claimed the commercial speech
exception. Id. at 184. The trial court denied the motion to dismiss and the law firm
appealed. Id. The court of appeals affirmed, recognizing that the ophthalmologist’s
claims of slander arose out of the advertisements, which were commercial speech
excepted from the TCPA. Id. at 191.
Likewise, Mauze involved a law firm that “engaged in an advertising
campaign to solicit former dental patients … from dental clinics as potential clients.”
Id. at 745. Based on the law firm’s advertisements and website, the dental clinics
sued the firm for false advertising, defamation and business disparagement. Id. at
746. The law firm moved to dismiss pursuant to the TCPA. The district court denied
the motion based on the commercial speech exception. Id. at 746. The law firm
appealed. Id.
28
In the absence of Texas Supreme Court interpretation of the commercial
speech exception, the Fifth Circuit made an “an Erie guess” relying on Texas
intermediate appellate court decisions. Id. at 755. The Fifth Circuit concluded the
commercial speech exception applied because the dental clinics’ claims for false
advertising and defamation arose out of the advertisements themselves, which were
directed to the law firm’s potential customers. See id.
Miller Weisbrod and Mauze are not helpful here because they were decided
four years before the Texas Supreme Court case we rely on, Castleman. Moreover,
they also are factually distinguishable. Again, Pohl is not suing Kassab for
defamation arising from Kassab’s statements to his potential clients. Nor is Pohl
suing Kassab for false advertising in the letters that Kassab sent to potential clients.
Rather, the focus of the “conduct” at issue is the alleged theft of confidential trade
secrets and property. 1CR12 (“In knowingly purchasing the stolen information,
Kassab [has] wrongfully exercised dominion and control over Pohl’s property in
contravention of Pohl’s rights as owner of that property.”); 1CR13 (“All Defendants
willfully and maliciously misappropriated Pohl’s trade secrets by using them without
the express or implied consent of Pohl.”); 1CR13-14 (“Acting in combination with
the agreed object of misappropriating Pohl’s trade secrets and converting Pohl’s
property, each of the Defendants committed overt acts toward the unlawful
misappropriation of Pohl’s trade secrets, which were unlawful and which
29
proximately caused damages to Pohl.”). Even Pohl agrees that he did not sue Kassab
for solicitation of clients, but “for conversion because Kassab [allegedly] knowingly
purchased confidential information and materials that were stolen from Pohl.”
1CR690.
Because Pohl’s claims are not based on advertisements by lawyers to potential
clients, Miller Weisbrod and Mauze are distinguishable, and do not establish that the
commercial speech exception applied to Pohl’s claims against Kassab. See
Schimmel, 438 S.W.3d at 858.
C. Pohl did not establish a prima facie case against Kassab by
clear and specific evidence.
Since each claim alleged by Pohl fell within the TCPA, the trial court was
required to dismiss the claims against Kassab unless Pohl “establishe[d] by clear and
specific evidence a prima facie case for each essential element of the claim in
question.” TEX. CIV. PRAC. & REM. CODE § 27.005(c). Pohl failed to meet this
burden, and the trial court erred by not granting the motion to dismiss.
1. The trial court abused its discretion by failing to
sustain Kassab’s evidentiary objections.
Pohl responded to Kassab’s motion to dismiss with his own declaration and
sworn testimony from his counsel. See 2CR713-845 (affidavit from Billy Shepherd
with exhibits); 2CR847-848 (declaration of Pohl); 2CR850-852 (declaration of Jean
30
Frizzell).13 Kassab objected to statements in and documents attached to Shepherd’s
affidavit, and objected to Pohl’s declaration. 3SCR104-109. The trial court’s implied
overruling of these objections was an abuse of discretion. See U Haul Int'l, Inc. v.
Waldrip, 380 S.W.3d 118, 132 (Tex. 2012) (“Evidentiary rulings are committed to
the trial court's discretion”); Mission Wrecker Serv., S.A. v. Assured Towing, Inc.,
No. 04-17-00006-CV, 2017 Tex. App. LEXIS 7226, 2017 WL 3270358, at *7 (Tex.
App.—San Antonio Aug. 2, 2017, pet. denied) (mem. op.) (applying abuse of
discretion standard to evidentiary objections made in TCPA case).
a. The affidavit of Billy Shepherd and its attached
documents are not admissible.
Shepherd’s affidavit is objectionable for several reasons. First, it does not state
that it is based upon personal knowledge and does not swear that the facts contained
in it are “true and correct.” 2CR713-715. “An affidavit which does not positively
and unqualifiedly represent the facts as disclosed in the affidavit to be true and within
the affiant’s personal knowledge is legally insufficient.” Humphreys v. Caldwell,
888 S.W.2d 469, 470 (Tex. 1994); see also In re Higby, 414 S.W.3d 771, 780 (Tex.
App.—Houston [1st Dist.] 2013, orig. proceeding) (“For an affidavit to have
probative value, the affiant must swear that the facts presented in the affidavit reflect
his personal knowledge.”); TEX. R. EVID. 602 (evidence must show the witness has
13 Frizzell initially failed to sign his declaration but later amended. See 3SCR101-102.
31
personal knowledge). Furthermore, an affidavit must contain direct and unequivocal
statements that, if false, would be grounds for perjury. See Burke v. Satterfield, 525
S.W.2d 950, 955 (Tex. 1975). Shepherd’s affidavit does not confirm that the facts
stated in it are true and correct, and therefore it is incompetent.
Additionally, the exhibits attached to Shepherd’s affidavit are not properly
authenticated. Shepherd’s affidavit fails to prove these documents as business
records. 2CR713. To introduce a business record through a witness, a party must
prove: (1) the record is a memorandum, report, other compilation of data; (2) the
witness is the custodian or another qualified witness; (3) the record was made from
information transmitted by a person with knowledge of the facts; (4) the record was
made at or near the time of the acts, events, conditions, opinions, or diagnoses
appearing on it; (5) the record was made as part of the regular practice of that
business activity; and (6) the record was kept in the course of a regularly conducted
business activity. See TEX. R. EVID. 101 (h)(4), 803 (6)(A)-(6)(D); see also Freeman
v. American Motorists Ins., 53 S.W.3d 710, 715 (Tex. App.—Houston [1st Dist.]
2001 no pet.). Shepherd’s affidavit fails to establish elements (3) and (4) because it
does not state that the cited records were made from information transmitted by a
person with knowledge of the facts, or that the records were made at or near the time
of the acts, events, conditions, opinions, appearing in them. See 2CR713-714.
32
Shepherd’s affidavit also fails to conform with Texas Rule of Evidence
902(10), which provides a form for proving a business record affidavit. TEX. R.
EVID. 902(10)(B). Shepherd’s affidavit did not follow the form of the rule because
Shepherd did not state that he is the custodian of records or otherwise establish how
he knows what each particular document is. See 2CR713-714. Further, Shepherd
failed to state that each of the records were made by persons with knowledge of the
matters set forth in the records. See id. Accordingly, the documents attached as
exhibits to Shepherd’s affidavits are hearsay upon hearsay. The trial court should
have sustained these objections and struck the affidavit and the attached exhibits
from the record.
b. The declaration of Pohl is conclusory and
constitutes no evidence.
Kassab also objected to paragraphs 3, 4, 5, 6, 7, 8 and 9 of Pohl’s declaration
because the statements contained in these paragraphs are conclusory and constitute
no evidence. 3SCR105-109. The trial court should have sustained these objections.
Conclusory declarations do not raise fact issues and are incompetent evidence.
Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996); Stephens v. Precision
Drilling Oilfield Servs. Corp., No. 01-11-00326-CV, 2013 Tex. App. LEXIS 5700,
2013 WL 1928797, at *19 (Tex. App.—Houston [1st Dist.] May 9, 2013, no pet.)
(mem. op.). “A conclusory statement is one that does not provide the underlying
33
facts to support the conclusion.” Dolcefino v. Randolph, 19 S.W.3d 906, 930 (Tex.
App. – Houston [14th Dist.] 2000, pet. denied). Moreover, a declaration is
conclusory when it expresses “a factual inference without stating the underlying
facts on which the inference is based.” E.I. du Pont de Nemours & Co. v. Shell Oil
Co., 259 S.W.3d 800, 809 (Tex. App.—Houston [1st Dist.] 2007, pet. denied).
Pohl’s declaration consists of nothing but conclusory statements. See 2CR847-848.
Kassab objected to paragraph 3,14 which states: “I was and am the rightful
owner of the confidential, privileged and trade secret information that Kassab
obtained from Scott Favre and Tina Nicholson on which this suit is based.” 2CR847.
This statement is conclusory because Pohl fails to describe what the purported
confidential information or trade secrets are, or explain how he is the rightful owner
of this information, as opposed to Favre or Precision, who have claimed to be the
owner of the marketing lists provided to Kassab. Moreover, Pohl fails to explain
how the information constitutes a trade secret. See Game Sys. v. Forbes Hutton
Leasing, Inc., No. 02-09-00051-CV, 2011 Tex. App. LEXIS 4098, at *76 (Tex. App.
– Fort Worth, May 26, 2011, no pet.) (mem. op.) (statement that the software
“constitutes a trade secret” was conclusory and not proper evidence).
14 3SCR106-107.
34
Kassab objected to Paragraph 415 which states, “I did not provide consent for
Kassab to exercise dominion and control over the property, and his exercise of that
dominion and control is wrongful.” 2CR847. Pohl does not provide any factual
support for this statement or explain why Kassab’s exercise and control over lists he
obtained rightfully from Favre or Precision or their counsel is wrongful. See
McCollum v. Bank of N.Y. Mellon Tr. Co., 481 S.W.3d 352, 362 (Tex. App.—El
Paso 2015, no pet.) (conclusory statements in affidavit that conduct is “allegedly
wrongful” is insufficient to raise fact issue that conduct alleged is in fact wrongful).
Kassab objected to Paragraph 516 which states, “I have incurred damages as a
result of Kassab’s conversion of my property, through at the very least, by the
exposure of the confidential materials and information, which results in a loss of the
intrinsic value to me as trade secrets and confidential materials.” 2CR847. This
statement is conclusory because Pohl does not state what the alleged trade secrets or
confidential materials are, or explain how he is allegedly damaged by Kassab’s
alleged misappropriation of the material. See Celtic Props., L.C. v. Cleveland Reg'l
Med. Ctr., L.P., No. 09-13-00464-CV, 2015 Tex. App. LEXIS 8051, 2015 WL
4600661, at *3 (Tex. App.—Beaumont July 31, 2015, no pet.) (mem. op.) (statement
15 3SCR107.
16 3SCR107.
35
that property was “damaged” as a result of defendant’s conduct was insufficient as
a matter of law); Chapa v. Stonehaven Dev., Inc., No. 13-13-00030-CV, 2013 Tex.
App. LEXIS 10159, at *9 (Tex. App. – Corpus Christi, Aug. 15, 2013, no pet.) (mem.
op.) (statement “we lost the profits we would have made” is conclusory because it
provides no underlying facts to support the conclusion); see also Fraud-Tech, Inc.
v. Choicepoint, Inc., No. 02-05-150-CV, 2006 Tex. App. LEXIS 3181, 2006 WL
1030189, at *5 (Tex. App.—Fort Worth Apr. 20, 2006, no pet.) (mem. op.) (affidavit
testimony that appellants were damaged because of the alleged conversion was
conclusory when affiant did “not supply facts underlying its conclusions”).
Kassab objected to Paragraph 617 which states, “Before they were stolen, I
took substantial measures to maintain the materials and information that Kassab
obtained from Scott Favre and Tina Nicholson as confidential and protected them as
valuable trade secrets. I strictly limited access to them and by maintaining physical
copies under lock and key.” 2CR 847-848. These statements are conclusory because
Pohl does not describe (1) what “substantial” measures he took to maintain
information obtained by Kassab, (2) what the information obtained by Kassab is, or
(3) how the information obtained by Kassab is allegedly a “valuable trade secret.”
See id. Pohl does not describe how he “strictly limited” access to his alleged
17 3SCR107-108.
36
confidential information, particularly when it freely ended up in the hands of
Precision and Favre, who claimed ownership of the marketing material provided to
Kassab. 1CR640-642 (affidavit of Favre discussing the materials owned by
Precision which Pohl claims were his).
Kassab objected to Paragraph 718 which states, “The stolen materials and
information have independent economic value from not being generally known to,
and not readily being ascertainable through proper means by, another person who
can obtain economic value from the disclosure or use of the information.” 2CR 848.
Pohl does not describe how any materials were purportedly stolen, what the
materials are, how the materials are not known to the general public, or how the
materials allegedly provide economic value to Pohl, rendering this statement
conclusory. See id.
Kassab objected to paragraph 819 which states “Kassab’s misappropriation of
my trade secrets has caused me damages in both the form of actual loss of the value
of my confidential materials and of unjust enrichment to Kassab as a result of his
wrongful misappropriation.” 1CR848. Pohl again provides no facts to explain how
Kassab allegedly misappropriated the trade secrets, how the information constitutes
a trade secret or how the loss of the information caused Pohl damages or unjustly
18 3SCR108.
19 3SCR108-109.
37
enriched Kassab, rendering this statement conclusory. See Plas-Tex, Inc. v. Jones,
NO. 03-99-00286-CV, 2000 Tex. App. LEXIS 3188, at *18 (Tex. App. – Austin,
May 18, 2000, pet. denied) (mem. op.) (“conclusory statements regarding the value
of intangible assets such as unidentified trade secrets” are insufficient to support
claim of damages). The purported loss to Pohl of any alleged misappropriation of
trade secrets is also a speculative, unqualified opinion of Pohl which is inadmissible.
See Nat. Gas Pipeline Co. of Am. v. Justiss, 397 S.W.3d 150, 156 (Tex. 2012)
(“testimony is speculative if it is based on guesswork or conjecture”).
Kassab objected to Paragraph 920 which states “In the same ways that
Kassab’s conversion and misappropriation of my confidential information injured
me, I was injured by the conspiracy to commit those torts.” 2CR848. This is a
conclusory statement within a conclusory statement, because Pohl does not describe
the purported conversion or misappropriation and makes no effort to provide any
facts supporting the alleged conspiracy claims. See id; see also Methodist Hosp. v.
Zurich Am. Ins. Co., 329 S.W.3d 510, 530 (Tex. App.—Houston [14th Dist.] 2009,
pet. denied) (concluding that affiant’s “bare assertion” that the conduct of the
opposing party was the “causal connection” of its damages was conclusory and
“substantively defective” and nothing more than affiant’s subjective opinion). Thus,
20 3SCR109.
38
Pohl’s declaration is incompetent evidence that should have been struck from the
record.
c. With his evidence properly excluded, Pohl
presented no evidence to establish a prima facie
case against Kassab.
Because Kassab’s objections are valid, the trial court abused its discretion
when it impliedly overruled these objections and denied Kassab’s motion to dismiss.
If this evidence had been properly excluded or disregarded, Pohl would have been
left with no evidence to establish a prima facie case against Kassab. Thus, the trial
court erred by failing to grant Kassab’s motion to dismiss. See Gaskamp, 2018 Tex.
App. LEXIS 10643, at *35 (trial court erred when it did not grant motion to dismiss
after no prima facie case was established); James, 446 S.W.3d at 142-44 (same).
2. Even if the evidence is considered, Pohl failed to
establish a prima facie case against Kassab.
Pohl admits that he engaged Precision, however he claims that it was to
provide “public relations services,” and to “screen and liaise with Pohl’s
clients/prospective clients,” rather than to personally solicit clients in violation of
barratry laws. 1CR8-9. Pohl claims that Precision “gained access to Pohl’s
confidential and proprietary information and property, including trade secret
materials, that included the identities of Pohl’s clients/prospective clients, as well as
their detailed contact information,” and then wrongfully sold this information to
39
Kassab. 1CR9-10. Based on this conduct, Pohl has asserted claims against Kassab
for conversion, theft of trade secrets, and civil conspiracy. 1CR12-14. Even if the
trial court correctly overruled Kassab’s objections and considered Pohl’s evidence,
the trial court still erred in failing to grant the motion to dismiss because Pohl failed
to establish each element of each claim.
a. The conversion claim fails.
The elements of conversion are (1) the plaintiff owned or had possession of
the property or entitlement to possession; (2) the defendant unlawfully and without
authorization assumed and exercised control over the property to the exclusion of,
or inconsistent with, the plaintiff’s rights as an owner; (3) the plaintiff demanded
return of the property; and (4) the defendant refused to return the property. Stroud
Prod., L.L.C. v. Hosford, 405 S.W.3d 794, 811 (Tex. App.—Houston [1st Dist.]
2013, pet. denied). Pohl failed to establish each element.
First, Pohl did not own the property allegedly converted by Kassab. Pohl
claims the property converted included his client’s contact information obtained
from his “attorney-client fee agreements” and “communications” and “legal forms”
that he had with his “clients/prospective clients.” 1CR 8-9. But under Texas law, this
property is owned by the client, not Pohl. 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);
40
Hebisen v. State, 615 S.W.2d 866, 868 (Tex. Civ. App.—Houston [1st Dist.] 1981,
no writ) (same); In re McCann, 422 S.W.3d 701, 704 (Tex. Crim. App. 2013) (“a
client owns the contents of his or her file.”); see also Resolution Tr. Corp. v. H, P.C.,
128 F.R.D. 647, 650 (N.D. Tex. 1989) (client owns contents of his or her file because
“attorney is hired to represent the interests of his client, and every service provided
by the attorney, including the creation of legal memoranda and attorney’s notes and
the copying of documents, is paid for by the client.”); TEX. DISCIPLINARY R. PROF'L
CONDUCT 1.15(d).
Because the property Pohl alleges was converted did not belong to him, Pohl
has no standing to sue for conversion. See Sherman v. Boston, 486 S.W.3d 88, 95
(Tex. App.—Houston [14th Dist.] 2016, pet. denied) (individual member of
company lacked standing to bring conversion claim because the checks that were
allegedly converted belonged to the company, not the individual); Doran v.
ClubCorp USA, Inc., No. 05-06-01511-CV, 2008 Tex. App. LEXIS 1250, 2008 WL
451879, at *6 (Tex. App.—Dallas Feb. 21, 2008, no pet.) (mem. op.) (plaintiff
lacked standing to sue health club because he did not own the membership, his
employer did); Bank of Houston v. Thomas, 1989 Tex. App. LEXIS 2750, 1989 WL
131081, at *22 (Tex. App. – Houston [14th Dist.] 1989, writ denied) (no conversion
“as a matter of law” when property was not owned by plaintiff); 3-C Oil Co. v.
41
Modesta P'ship, 668 S.W.2d 741, 753 (Tex. App. – Austin 1984, no pet.) (“If
[plaintiffs] did not own the equipment, no conversion took place, as to them.”).
Second, even if the marketing lists and client information was not the property
of the clients, it was the property of Precision. 1CR640-642. Favre testified that
Precision “solicited many of the marketing contacts (individuals and businesses) on
these lists for representation” by Pohl. 1CR641. Favre testified that the “marketing
lists contain the names of thousands of persons who eventually became [Pohl’s]
former clients, and/or whom [Pohl] solicited for representation.” Id. Favre made
clear that the information that Pohl claims are the trade secrets and property
converted by Kassab “were and are solely the work product and property of
Precision, developed during the normal course of its marketing business.” Id.
(emphasis added).
Because Kassab obtained the information from Precision legally, Pohl did not
establish that Kassab “unlawfully and without authorization” assumed control of the
property. Kassab obtained the names and addresses of the victims of Pohl’s barratry
from Precision (and/or its counsel), who was the owner of this property, not Pohl.
1CR110, 640-642. Kassab testified, without objection, that he understood Precision
and Favre to be the owner of the property he obtained:
I did not know that the information I was provided by Precision
Marketing had been acquired from Pohl by improper means or
misappropriated by anyone. In fact, I had reviewed an agreement that
42
indicated Walker, Ladner and Seymour and their companies had sold,
conveyed or otherwise transferred all of their documents, lists,
marketing materials, and other documents and assets to Favre and or
his companies.
1CR110. Therefore, Kassab did not unlawfully obtain Pohl’s property, but lawfully
obtained property belonging to Precision. See id.
Third, even if the Court presumes that the first two elements are established
by Pohl’s pleadings and evidence, Pohl failed to establish elements (3) and (4). Pohl
does not allege that he demanded return of the allegedly stolen property or that
Kassab refused to return it. 1CR12-13; 2CR900. Nor does Pohl provide any evidence
that he demanded return of the purportedly stolen property. 2CR847-848. In fact, in
response to the motion to dismiss, Pohl did not direct the trial court to any
evidence establishing these elements whatsoever. 2CR704. Therefore, Pohl has
failed to establish a prima facie case for conversion. See Ramon v. Dow, No. 14-07-
01024-CV, 2009 Tex. App. LEXIS 1450, 2009 WL 508427, at *2 (Tex. App.—
Houston [14th Dist.] Mar. 3, 2009, no pet.) (mem. op.) (plaintiff failed to state a
cause of action for conversion as a matter of law because he made “no allegation
that [defendants] … affirmatively refused to return the materials.”).21
21 See also Moorehouse v. Chase Manhattan Bank, 76 S.W.3d 608, 615 (Tex. App. – San Antonio
2002, no pet.) (summary judgment on conversion claim affirmed because plaintiff “did not demand
return of the check nor did [the bank] refuse to return it.”); San Antonio & A. P. R. Co. v. Smith,
171 S.W. 282, 283-84 (Tex. Civ. App. 1914) (railroad failed to establish that defendant had
committed conversion because railroad did not make a demand for the return of property).
43
b. The theft of trade secrets claims fail.
Pohl has sued Kassab for theft of trade secrets under the Texas Uniform Trade
Secrets Act (“TUTSA.”), which allows for damages caused by trade secret
“misappropriation.” 1CR 13; 2CR 900-901; see also TEX. CIV. PRAC. & REM. CODE
§ 134A.004(a). Pohl alleges that Kassab committed misappropriation under §
134A.002(3)(B) because he “purchased the trade secret information knowing that it
had been stolen … without the express or implied consent of Pohl.” 1CR13. This
section defines “misappropriation” as the:
use of a trade secret of another without express or implied consent by a
person who … at the time of disclosure or use, knew or had reason to
know that the person’s knowledge of the trade secret was:
(a) derived from or through a person who used improper
means to acquire the trade secret;
(b) acquired under circumstances giving rise to a duty to
maintain the secrecy of or limit the use of the trade secret;
(c) derived from or through a person who owed a duty to
the person seeking relief to maintain the secrecy of or limit
the use of the trade secret
TEX. CIV. PRAC. & REM. CODE § 134A.002(3)(B)(ii) (emphasis added). Therefore,
to prove his TUTSA claim against Kassab, Pohl must establish that (1) the materials
at issue constitute trade secrets; and (2) Kassab “knew or had reason to know” that
44
Favre or Nicholson acquired Pohl’s trade secrets through improper means. See id.
Pohl has failed to establish either element.
First, the materials at issue are not trade secrets. To determine whether
information constitutes a trade secret, the following six factors must be considered:
(1) the extent to which the information is known outside the claimant's business; (2)
the extent to which the information is known by employees and others involved in
the claimant's business; (3) the extent of the measures taken by the claimant to guard
the secrecy of the information; (4) the value of the information to the claimant and
to its competitors; (5) the amount of effort or money expended by the claimant in
developing the information; and (6) the ease or difficulty with which the information
could be properly acquired or duplicated by others. In re Bass, 113 S.W.3d 735, 739
(Tex. 2003). The party claiming trade secret status bears the burden of proof of
establishing that something is a trade secret. Stewart & Stevenson Servs. v. Serv-
Tech, Inc., 879 S.W.2d 89, 99 (Tex. App. – Houston [14th Dist.] 1994, writ denied).
Pohl alleges that the trade secrets allegedly misappropriated included “actual
attorney-client fee agreements with clients/prospective clients” and
“communications between the clients/prospective clients” and “specialized legal
forms” and “administrative client forms” and unidentified “proprietary marketing
information…” 1CR9. However, Pohl failed to provide any evidence to support
these allegations. 1CR847-848. Rather, Pohl makes the conclusory statement that he
45
is “the rightful owner of the confidential, privileged and trade secret information,”
but makes no effort to describe or identify the purported trade secrets. 1CR847. Pohl
does not discuss the extent to which the information is known by those involved
inside or outside his business, the extent of the measures taken by Pohl to guard the
secrecy of the information, the value of the information, the amount of effort or
money expended by Pohl in developing the information, or the ease or difficulty
with which the information could be properly acquired or duplicated by others.
1CR847-848. Pohl has not met these elements because he cannot — any information
obtained by Kassab was conveyed and assigned by Precision to Favre. 1CR640-642.
Therefore, Pohl has not met his burden of proof to establish that the materials
allegedly misappropriated are trade secrets. See In re Cauley, 437 S.W.3d 650, 657
(Tex. App.—Tyler 2014, orig. proceeding) (trade secret privilege not applicable
when party failed to establish materials constituted trade secrets). For this reason,
Pohl’s misappropriation of trade secret claims against Kassab fail.
Moreover, under the TUTSA, information is not a trade secret if it is generally
known to the public. See TEX. CIV. PRAC. & REM. CODE § 134A.002(6)(A) (defining
“trade secret” to include “all forms and types of information” that “the owner … has
taken reasonable measures under the circumstances to keep the information secret.”).
The names and addresses of Pohl’s clients or prospective clients and his fee
agreements with these individuals are not confidential or privileged and are
46
generally known to the public. See Borden, Inc. v. Valdez, 773 S.W.2d 718, 720
(Tex. App.—Corpus Christi 1989, no writ) (“the attorney-client privilege certainly
does not encompass such nonconfidential matters as the terms and conditions of an
attorney’s employment and the purpose for which an attorney has been engaged.”);
Jim Walter Homes, Inc. v. Foster, 593 S.W.2d 749, 752 (Tex. Civ. App. – Eastland
1979, no writ) (fee agreement is not privileged or confidential because it is a matter
collateral to the professional relationship, and has no bearing on the merits of the
matter on which the attorney was hired).22
Finally, the TUTSA requires Pohl to show that Kassab “knew or had reason
to know” that the purported trade secrets were acquired by improper means. TEX.
CIV. PRAC. & REM. CODE § 134A.002(3). Pohl failed to present evidence to establish
this intent. Here, the evidence establishes, as a matter of law, that Precision, and not
Pohl, owned the information that Pohl claims is his trade secret. 1CR640-643. The
evidence also establishes that Kassab understood, based on Favre’s testimony and
his discussions with Favre or his counsel, and his review of certain agreements, that
Precision was the owner of the information. 1CR110. Attempting to rebut this
22 See also Stewart Abstract Co. v. Judicial Comm'n of Jefferson County, 131 S.W.2d 686, 690
(Tex. Civ. App. – Beaumont 1939, no writ) (account and ledger books showing names of clients,
nature of services rendered, and payments were not privileged or confidential); In re Ginther, No.
07-80200-G3-11, 2008 Bankr. LEXIS 2624, at *14 (Bankr. S.D. Tex. Aug. 29, 2008) (recognizing
that the “identity of client, terms and conditions of employment, amount of fee, identification of
payment by case file name, and the general purpose of the work performed, are not privileged.”).
47
testimony, Pohl directed the trial court to his own declaration. 2CR705. However,
the extent of Pohl’s testimony on this subject is that Kassab’s exercise of “dominion
and control” over the information “is wrongful.” 2CR847. This single conclusory
statement is insufficient to establish that Kassab “knew or had reason to know” that
the purported trade secrets were acquired by Favre, Precision or Nicholson by
improper means. Therefore, this claim fails.
c. Because the underlying claims fail, the
conspiracy claim also fails.
Pohl sued Kassab for civil conspiracy, alleging he acted in association with
others “with the agreed object of misappropriating Pohl’s trade secrets and
converting Pohl’s property” and “committed overt acts toward the unlawful
misappropriation of Pohl’s trade secrets, which were unlawful and proximately
caused damages to Pohl.” 1CR13-14. In response to the motion to dismiss, Pohl did
not provide any evidence, but instead relied on the allegations in his petition.
2CR705-706. Regardless, the conspiracy claim fails because the underlying theft of
trade secrets and conversion claims fail. See Trammel Crow Co. No. 60 v. Harkinson,
944 S.W.2d 631, 635 (Tex. 1997) (to prevail on a civil conspiracy claim, the plaintiff
must show that the defendant was liable for some underlying tort).
48
D. Even if Pohl established a prima facie case, his claims fail as
a matter of law because they are barred by the statute of
limitations, the attorney immunity doctrine and res judicata.
Even if Pohl established a prima facie case for each of his claims, the trial
court was required to dismiss his claims against Kassab because Kassab established
valid defenses to the claims. See TEX. CIV. PRAC. & REM. CODE § 27.005(d). Kassab
asserted three defenses to Pohl’s claims: (1) statute of limitations; (2) attorney
immunity; and (3) res judicata. 1CR17. Kassab established each of these defenses
by a preponderance of the evidence. 1CR98-103. Therefore, the trial court erred by
failing to dismiss Pohl’s claims against Kassab.
1. Pohl’s claims are barred by the statute of limitations.
The statute of limitations for conversion is two years from the date the
property is allegedly taken. TEX. CIV. PRAC. & REM. CODE § 16.003(a); Burns v.
Rochon, 190 S.W.3d 263, 271 (Tex. App. – Houston [1st Dist.] 2006, no pet.). The
statute of limitations for civil conspiracy also is two years. Mayes v. Stewart, 316
S.W.3d 715, 719 (Tex. App.—Houston [14th Dist.] 2010, no pet.). The statute of
limitations for misappropriation of trade secrets is three years. TEX. CIV. PRAC. &
REM. CODE § 16.010(a). Pohl’s claims against Kassab are barred by these statutes of
limitations.
In the Mississippi Litigation, Pohl asserted, “At a time as yet unknown but
believed to have been no later than the summer of 2013, [Precision] joined with
49
[Favre], his business entities and/or affiliates, to convert property belonging to
Pohl.” 3SCR195-196. Pohl asserted that Precision “provid[ed] Pohl’s proprietary
information and materials to unauthorized third persons and/or co-conspirators and
converting Pohl’s property, including original client contracts and client personal
claim information, to their own use.” 3SCR194. These are all the same claims that
Pohl has made in this lawsuit. When Pohl asserted these claims in the Mississippi
Litigation, he admitted that they accrued “no later than the summer of 2013.” Id.
In a deposition in one of the barratry lawsuits, Pohl testified that the basis of
his alleged claims against Kassab occurred in 2014 when Kassab and his “crew”
allegedly “robbed” Pohl by braking into his Gulf Port, Mississippi office and stealing
his client files to solicit his clients:
A. If the question is did you steal my files and rob my office, the
answer is that you and your co-counsel and your crew robbed my office,
stole my clients’ names, contacted my clients and told them lies to
initiate suits against me.”
Q. Okay. How did I steal your files, sir?
A. You broke into my law office.
Q. I did personally?
A. You and your crew.
Q. And when did I do that?
A. I don’t know the exact date, but I believe it was in 2014 when
you robbed me.
50
1CR647. (emphasis added). Pohl testified that although he knew the conduct
occurred in 2014, he did not file a civil or criminal case against Kassab or his “crew”
because he “wanted to spend time to reflect on it before taking action [and] didn’t
want to do anything that was precipitous.” 1CR650-654. When asked why he did
not report Kassab’s conduct to any authority or take any action against Kassab, Pohl
stated he had been “preoccupied” and simply “neglected to do that.” 1CR654
(emphasis added).
“The statute of limitations begins to run when a party has actual knowledge
of a wrongful injury.” Exxon Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194, 207
(Tex. 2011). “Once a claimant learns of a wrongful injury, the statute of limitations
begins to run even if the claimant does not yet know the specific cause of the injury;
the party responsible for it; the full extent of it; or the chances of avoiding it.” Id.
(internal quotations omitted) (emphasis added). Pohl admits that he knew of his
potential claims against Kassab in 2014, but “neglected” to file suit against Kassab
until August 28, 2018. 1CR4-14. Accordingly, all of Pohl’s claims against Kassab
were filed more than three years after discovery, and thus, are barred by limitations.
See TEX. CIV. PRAC. & REM. CODE § 16.003; Id. at § 16.010. Therefore, it was error
for the trial court to refuse to dismiss Pohl’s claims against Kassab. Id. at §
27.005(d).
51
2. Pohl’s claims are barred as a matter of law by the
attorney immunity doctrine.
Pohl’s claims against Kassab are barred by the attorney immunity doctrine.
The Texas Supreme Court has recognized that “attorneys are authorized to practice
their profession, to advise their clients and interpose any defense or supposed
defense, without making themselves liable for damages.” See Cantey Hanger, LLP
v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015) (internal quotations omitted). “This
attorney-immunity defense is intended to ensure loyal, faithful, and aggressive
representation by attorneys employed as advocates.” Id. (internal quotations
omitted). Thus, “attorneys are immune from civil liability to non-clients for actions
taken in connection with representing a client in litigation.” Id. (internal quotations
omitted).
Moreover, “[m]erely labeling an attorney’s conduct ‘fraudulent’ does not and
should not remove it from the scope of client representation or render it ‘foreign to
the duties of an attorney.’” Id. at 483. Rather, in determining immunity, the inquiry
“focuses on the kind of conduct at issue rather than the alleged wrongfulness of said
conduct.” Youngkin, 546 S.W.3d at 681. “That is, a lawyer is no more susceptible to
liability for a given action merely because it is alleged to be fraudulent or otherwise
wrongful.” Id. This is because “an attorney’s conduct may be wrongful but still fall
52
within the scope of client representation” and therefore be subject to attorney
immunity. Cantey Hanger, 467 S.W.3d at 483.
The recent case Highland Capital Mgmt., LP v. Looper Reed & McGraw,
P.C., No. 05-15-00055-CV, 2016 Tex. App. LEXIS 442, 2016 WL 164528 (Tex.
App.—Dallas Jan. 14, 2016, pet. denied) (mem. op.) is instructive. There, the
plaintiff sued the law firm for the defendant alleging the firm obtained stolen
property of the defendant and threatened to disclose this confidential information to
extort a settlement. Id. at *2. The plaintiff, Highland, argued that the firm, Looper
Reed, engaged in “malicious conduct with respect to its illegal acquisition, retention,
use, and threatened disclosure of Highland’s proprietary and confidential
information” including:
reviewing, copying, and analyzing information it knew to be stolen and
proprietary in furtherance of its scheme to extort, slander, and disparage
Highland, threatening Highland that it would disclose proprietary
information and disparage Highland if a monetary sum was not paid,
and refusing to return and cease use of Highland’s proprietary
information after receiving written notice of the proprietary and
confidential nature of these documents and Highland's demand that the
stolen materials be returned.
Id. at *10-*11. The court of appeals affirmed the trial court’s dismissal of these
claims on the pleadings23 based on attorney immunity because the alleged conduct
23 The dismissal was pursuant to Texas Rule of Civil Procedure 91a.
53
fell “squarely within the scope of Looper Reed’s representation” in the lawsuit. Id.
at *16.
Similar to the plaintiff in Highland Capital, Pohl alleges that Kassab
purchased information he knew to be stolen from Precision, Favre and Nicholson,
and used this information to solicit Pohl’s “clients to act as plaintiffs … to bring
cases against Pohl for alleged barratry and other claims.” 1CR9-10. Pohl’s
characterization of this conduct as wrongful is immaterial. See Youngkin, 546
S.W.3d at 682 (“That the plaintiff characterized the firm’s conduct as fraudulent or
otherwise wrongful was immaterial to [the court’s] evaluation of the immunity
defense.”). Mischaracterizations aside, Pohl alleges that Kassab used stolen
information to determine which clients had been illegally solicited to hire Pohl and
then brought barratry claims against Pohl on behalf of these clients. See 1CR9-10.
To the extent this allegation is the basis of a claim, the claim falls squarely within
attorney immunity. See Highland Capital, 2016 Tex. App. LEXIS 442, at *15-*16;
see also Alpert v. Crain, Caton & James, P.C., 178 S.W.3d 398, 408 (Tex. App.—
Houston [1st Dist.] 2005, pet. denied) (holding that a claim against an attorney for
conspiracy to defraud was not actionable where “the complained-of actions involve
the filing of lawsuits” were “made to facilitate the rendition of legal services to [the
client]”). This is true regardless of whether the conduct occurred prior to the actual
litigation of these claims. See Cantey Hanger, 467 S.W.3d at 485 (attorney was
54
immune from conduct that occurred after litigation had ended because it was related
to the representation).
3. Pohl’s claims are barred by res judicata.
Pohl’s claims against Kassab are barred by res judicata. “Res judicata, or
claims preclusion, prevents the relitigation of a claim or cause of action that has been
finally adjudicated, as well as related matters that, with the use of diligence, should
have been litigated in the prior suit.” Barr v. Resolution Tr. Corp., 837 S.W.2d 627,
628 (Tex. 1992). Res judicata is established if the moving party shows “ (1) a prior
final determination on the merits by a court of competent jurisdiction; (2) identity of
parties or those in privity with them; and (3) a second action based on the same
claims as were or could have been raised in the first action.” Travelers Ins. Co. v.
Joachim, 315 S.W.3d 860, 862 (Tex. 2010). Kassab demonstrated all elements of
this defense by a preponderance of the evidence.
Pohl’s claims against Kassab are the same that he filed in the Mississippi
Litigation, arise from the same alleged transactions, and are against the same alleged
co-conspirators. See 3SCR16-17. Specifically, Pohl sued Precision and other
“potential” defendants in the Mississippi Litigation for conversion, alleging, among
other claims, that Precision misappropriated his property. See id. During the
Mississippi Litigation, Pohl identified Kassab as one of the “potential” defendants
in privity with Precision, testifying that the former owners of Precision “purported
55
to sell” Pohl’s allegedly confidential information and trade secrets to Favre who then
allegedly “sold those items and the information” to Kassab. 1CR671-672. Therefore,
Pohl knew that Kassab was involved in the alleged scheme during the pendency of
the Mississippi Litigation, and he could have raised these claims – which occurred
in 2013, and which he knew of in 2014 – in the Mississippi Litigation. See id.
Nonetheless, Pohl voluntarily paid money to settle his claims against
Precision and other parties in the Mississippi Litigation, and the parties dismissed
their claims against each other with prejudice. 1CR353-354. Thus, judgment was
entered by a court of competent jurisdiction regarding these same claims. See
Essman v. Gen. Accident Ins. Co. of America, 961 S.W.2d 572, 574 (Tex. App. –
San Antonio 1997, no pet.) (“A judgment of dismissal entered by agreement of the
parties in pursuance of a compromise or settlement of a controversy becomes a
judgment on the merits.”); Rhoades v. Prudential Leasing Corp., 413 S.W.2d 404,
407 (Tex. Civ. App. – Austin 1967, no writ).
Pohl argued to the trial court res judicata did not apply because Kassab was
not “a party or privy to a party” in the Mississippi Litigation. 2CR708. However,
Kassab, as an alleged co-conspirator, was in sufficient privity with Precision and
Favre for res judicata to attach. See Jonalstem, Ltd. v. Corpus Christi Nat'l Bank,
N.A., 923 S.W.2d 701, 705 (Tex. App.—Corpus Christi 1996, writ denied) (finding
alleged coconspirators in privity with the defendant in a prior action for purposes of
56
res judicata); see also Glatzer v. Skilling, No. 4:16-CV-1449, 2017 U.S. Dist. LEXIS
112782, at *4 (S.D. Tex. Feb. 23, 2017) (concluding that party “should not be
allowed to re-litigate his assertions of wrongdoing” by an alleged co-conspirator
who was not sued in the original action and finding a “sufficiently close relationship”
between the co-conspirators “to be considered ‘identical’ for res judicata purposes”);
Chavers v. Hall, 2011 U.S. Dist. LEXIS 63649, 2011 WL 2457943, at *7 (S.D. Tex.
June 16, 2011) (finding a “special relationship between alleged co-conspirators [and
previously adjudicated co-conspirators] . . . tantamount to an identity of parties
sufficient to bar by res judicata”). Therefore, Kassab established his res judicata
defense and the trial court erred by not dismissing Pohl’s claims against Kassab.
II. The trial court abused its discretion when it declined to grant
Kassab’s request for attorney’s fees and sanctions.
The TCPA provides that if the court orders dismissal under the statute, “the
court shall award the moving party: (1) court costs, reasonable attorney’s fees, and
other expenses incurred in defending against the legal action” and “(2) sanctions
against the party who brought the legal action as the court determines sufficient to
deter the party who brought the legal action from bringing similar actions” in the
future. TEX. CIV. PRAC. & REM. CODE § 27.009(a) (emphasis added). Because the
trial court erroneously failed to grant Kassab’s motion to dismiss, it also abused its
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discretion by failing to award Kassab reasonable attorney’s fees and sanctions as
required by the TCPA.
A. The trial court was required to award Kassab attorney’s fees
in defending the dismissed claims, which were established
here by the unchallenged evidence.
“[T]he TCPA requires an award of reasonable attorneys fees to the
successful movant.” Sullivan v. Abraham, 488 S.W.3d 294, 299 (Tex. 2016) (internal
quotations omitted) (emphasis added); see also TEX. CIV. PRAC. & REM. CODE §
27.009(a) (providing that the court “shall” award the moving party fees if any claim
is dismissed). Therefore, because Pohl’s claims against Kassab should have been
dismissed, an award of attorney’s fees to Kassab is mandatory. See Schimmel, 438
S.W.3d at 863 (“because Schimmel has established his entitlement to dismissal
under the TCPA, he is entitled to ‘court costs, reasonable attorney’s fees, and other
expenses incurred in defending against the legal action”).
Kassab submitted evidence establishing that he spent approximately seventy
hours reviewing Pohl’s petition, drafting an answer, reviewing the TCPA,
researching and drafting the motion to dismiss, the reply to the response to the
motion to dismiss, and preparing for and participating in the hearing on the motion.
1CR110-111. Kassab also presented evidence that his associate spent fifteen hours
researching, reviewing and editing the motion to dismiss. 1CR111. Kassab testified
that, based on his knowledge, education and experience, as well as the relevant
58
factors governing attorney’s fees, a reasonable fee for his services is $450 per hour
and a reasonable fee for his associate’s services is $250 per hour. Id. Therefore,
Kassab presented evidence to support a reasonable attorney fee award of $36,750
for work performed in the trial court. See id. This evidence of attorney’s fees went
unchallenged by Pohl. 1CR708-710, 850-852. In fact, the requested amount is
reasonable given that Pohl’s counsel requested a similar amount ($33,352) in
attorney’s fees for defending against the motion to dismiss. 1CR850-852.
In addition, Kassab requested that the trial court award him conditional
appellate attorney’s fees. 1CR104. “If trial attorney’s fees are mandatory under [the
statute], then appellate attorney’s fees are also mandatory when proof of reasonable
fees is presented.” Ventling v. Johnson, 466 S.W.3d 143, 154 (Tex. 2015). Because
the TCPA mandates an award of reasonable attorney’s fees, the trial court does not
have discretion to disallow an award when proof of reasonable appellate attorney’s
fees is presented. See Urquhart v. Calkins, No. 01-17-00256-CV, 2018 Tex. App.
LEXIS 5145, 2018 WL 3352919, at *11-12 (Tex. App.—Houston [1st Dist.] July
10, 2018, no pet. h.) (mem. op.).
Kassab testified about his appellate qualifications, including the fact that he
has prosecuted numerous appeals in Texas and his experience as a briefing attorney
for this Court and an intern for the Texas Supreme Court. 1CR111. Based on his
qualifications, knowledge and experience, Kassab testified that a reasonable
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attorney’s fee for an appeal to this Court is $45,000; a reasonable fee for responding
to and/or briefing regarding a motion for rehearing in this Court, if such is necessary,
is $5,000; a reasonable fee for filing a petition or response in the Texas Supreme
Court is $10,000; if the Texas Supreme Court requests briefing on the merits, a
reasonable attorney’s fee is $25,000; and a reasonable attorney’s fee for a motion
for rehearing at the Texas Supreme Court is $5,000.00. Id. Again, this testimony was
uncontroverted by Pohl. 1CR708-710, 850-852.
Because this evidence establishes that the attorney’s fees requested by Kassab
are reasonable, and because this evidence was uncontroverted, the Court should
direct the trial court to not only dismiss Pohl’s claims against Kassab, but award
Kassab $36,750 in attorney’s fees incurred at the trial level and $45,000 in attorney’s
fees incurred in this Court.
B. The trial court was mandated to award Kassab sanctions
against Pohl in an amount sufficient to achieve the deterrent
effect the statute requires.
The trial court also abused its discretion by declining to assess sanctions
against Pohl. The TCPA provides that if a court orders dismissal, the court “shall”
award to the moving party “sanctions against the party who brought the legal action
as the court determines sufficient to deter the party who brought the legal action
from bringing similar actions” in the future. TEX. CIV. PRAC. & REM. CODE §
27.009(a)(2). This Court recently recognized that an “award of sanctions to
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successful TCPA movant is mandatory.” Urquhart, 2018 Tex. App. LEXIS 5145,
at *14 (emphasis added). Although the Texas Supreme Court has not specifically
addressed the issue of whether sanctions under the TCPA are mandatory, the court
noted without disapproval the appellate court’s determination that the TCPA “made
an award of sanctions mandatory.” Sullivan, 488 S.W.3d at 299.
Given the clear language of the TCPA and the case law interpreting the statute,
the trial court abused its discretion when it failed to assess sanctions against Pohl.
See Serafine v. Blunt, No. 03-16-00131-CV, 2017 Tex. App. LEXIS 4606, 2017 WL
2224528, at *23-24 (Tex. App.—Austin May 19, 2017, pet. denied) (mem. op.) (“In
light of the mandatory nature of a sanctions award under the TCPA, we hold that the
trial court abused its discretion in failing to award Serafine some amount of sanctions
deemed appropriate to achieve the deterrent effect the statute requires.”). Therefore,
the case should be remanded to the trial court to determine the amount of the
sanctions award. See id. (“Accordingly, we remand this cause to the trial court for a
determination of the amount of sanctions to be awarded to Serafine under section
27.009 of the TCPA.”).
CONCLUSION & PRAYER
For all these reasons, this Court should reverse the trial court’s failure to grant
Kassab’s motion to dismiss and order the trial court to (1) dismiss Pohl’s claims
against Kassab with prejudice; (2) award Kassab $81,750 in attorney’s fees incurred
61
so far; and (3) assess the appropriate sanctions against Pohl to achieve the deterrent
effect the statute requires. The issue of sanctions should be remanded to the trial
court for consideration.
Respectfully submitted,
ALEXANDER DUBOSE & JEFFERSON LLP
/s/ Kevin Dubose
Kevin Dubose
State Bar No. 06150500
kdubose@adjtlaw.com
1844 Harvard Street
Houston, Texas 77008
Telephone: (713) 523-2358
Facsimile: (713) 523-4553
THE KASSAB LAW FIRM
/ s / Lance Christopher Kassab
Lance Christopher Kassab
State Bar No. 00794070
lance@kassab.law
David Eric Kassab
State Bar No. 24071351
david@kassab.law
1214 Elgin Street
Houston, Texas 77004
Telephone: (713) 522-7400
Facsimile: (713) 522-7410
Attorneys for Appellants Lance
Christopher Kassab and Lance
Christopher Kassab, PC d/b/a The
Kassab Law Firm
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CERTIFICATE OF COMPLIANCE
Based on a word count run in Microsoft Word, this brief contains 13,993
words (excluding the items exempted under Texas Rule of Appellate Procedure
9.4(i)(1)).
/ s / David Eric Kassab
David Eric Kassab
CERTIFICATE OF SERVICE
I certify that on April 24, 2019, I electronically filed this brief with the Clerk
of the Court using the eFile.TXCourts.gov electronic filing system which will send
notification of such filing to all counsel of record.
/ s / David Eric Kassab
David Eric Kassab
63
APPENDIX
Tab Item
1. Plaintiffs’ Original Petition.
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