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| 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]." Page 5 of 26 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. Page 7 of 26 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 Page 8 of 26 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 Page 14 of 26 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). Page 15 of 26 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 Page 16 of 26 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. Page 17 of 26 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 Page 18 of 26 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 Page 19 of 26 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 Page 20 of 26 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] Page 21 of 26 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 Page 22 of 26 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 |