orders: 12

16 trial court and appellate orders with full text

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order_id	date	title	court	filename	full_text
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. Page 2 of 13 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. Page 3 of 13 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. Page 4 of 13 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 Page 5 of 13 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 Page 7 of 13 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. Page 9 of 13 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 Page 10 of 13 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