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16 trial court and appellate orders with full text

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order_id	date	title	court	filename	full_text
16	2025-01-06	2025-01-06 BRF Kassab-Appellants-Brief-Final-Judgment-Appeal FILED	appellate	2025-01-06_BRF_Kassab-Appellants-Brief-Final-Judgment-Appeal_FILED.pdf	KASSAB v. MICHAEL A. POHL & LAW OFFICE OF MICHAEL A. POHL No. 01-24-00220-CV COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON January 6, 2025 Reporter 2025 TX APP. CT. BRIEFS LEXIS 119 * LANCE CHRISTOPHER KASSAB AND LANCE CHRISTOPHER KASSAB, PC D/B/A THE KASSAB LAW FIRM, Appellants v. MICHAEL A. POHL AND LAW OFFICE OF MICHAEL A. POHL, PLLC, Appellees Type: Brief Prior History: On Appeal from the 281st District Court, Harris County, Texas. Trial Court Case No. 2018-58419. Counsel Kevin Dubose, State Bar No. 06150500, Marisa C. Hurd, State Bar No. 24041157, Alexander Dubose & Jefferson LLP, Houston, Texas David Eric Kassab, State Bar No. 24071351, Lance Christopher Kassab, State Bar No. 00794070, THE KASSAB LAW FIRM, Houston, Texas, Attorneys for Appellants Murray Fogler, FOGLER, BRAR, O'NEIL AND GRAY, LLP, Houston, Texas, Trial Counsel Counsel for Appellees : Andy Taylor, Andy Taylor & Associates, P.C., Brenham, Texas, Appellate Counsel Jean C. Frizzell, Harris Wells, REYNOLDS FRIZZELL LLP, Houston, Texas, Trial Counsel Counsel for Nonparties: Dale Jefferson, Raul Suazo, Kevin Cain, MARTIN, DISIERE, JEFFERSON & WISDOM, LLP, Houston, Texas, Trial Counsel Counsel for Nonparties: Andrew L. Johnson, Zandra Foley, Benjamin S. Ritz, THOMPSON, COE, COUSINS & IRONS, LLP, Houston, Texas, Trial Counsel Jessica Z. Barger, E. Marie Jamison, WRIGHT CLOSE & BARGER, LLP, Houston, Texas, Trial and Appellate Counsel Chris C. Pappas, Andrew J. Sarne, Kimberly C. Clark, KANE RUSSELL COLEMAN LOGAN PC, Houston, Texas, Trial and Appellate Counsel Page 2 of 40 2025 TX APP. CT. BRIEFS LEXIS 119, 119 Counsel for Nonparties: Todd Taylor, Jocelyn A. Holland, JOHANSON & FAIRLESS, Sugar Land, Texas, Trial and Appellate Counsel. Title APPELLANTS' BRIEF Text [1] IDENTITY OF PARTIES AND COUNSEL Appellants: Lance Christopher Kassab and Lance Christopher Kassab PC, d/b/a The Kassab Law Firm Counsel for Appellants: Kevin Dubose Marisa C. Hurd ALEXANDER DUBOSE & JEFFERSON LLP 1844 Harvard St. Houston, Texas 77008 (713) 523-0667 (713) 522-4553 (facsimile) Appellate Counsel David Eric Kassab Lance Christopher Kassab THE KASSAB LAW FIRM 1214 Elgin Street Houston, Texas 77004 (713) 522-7400 (713) 522-7410 (facsimile) Trial and Appellate Counsel Murray Fogler FOGLER, BRAR, O'NEIL AND GRAY, LLP 909 Fannin, Suite 1640 Houston, Texas 77010 (713) 481-1010 (713) 574-3224 (facsimile) Trial Counsel Appellees: Michael Pohl and Law Office of Michael A. Pohl, PLLC Page 3 of 40 2025 TX APP. CT. BRIEFS LEXIS 119, 1 Counsel for Appellees: Andy Taylor Andy Taylor & Associates, P.C. 2628 Highway 36S, # 288 Brenham, Texas 77833 (713) 412-4025 Appellate Counsel Jean C. Frizzell Harris Wells REYNOLDS FRIZZELL LLP 1100 Louisiana St., Suite 3500 Houston, Texas 77002 (713) 485-7200 (713) 485-7250 (facsimile) Trial Counsel Nonparties to Appeal: F. Douglas Montague III and Montague Pittman & Varnado, P.A. Counsel for Nonparties [2] : Dale Jefferson Raul Suazo Kevin Cain MARTIN, DISIERE, JEFFERSON & WISDOM, LLP 808 Travis Street, 20th Floor Houston, Texas 77002 (713) 632-1700 (713) 222-0101 (facsimile) Trial Counsel Nonparties to Appeal: Tina Nicholson and Baker Nicholson, LLP d/b/a Baker Nicholson Law Firm Counsel for Nonparties: Andrew L. Johnson Zandra Foley Benjamin S. Ritz THOMPSON, COE, COUSINS & IRONS, LLP One Riverway, Suite 1400 Page 4 of 40 2025 TX APP. CT. BRIEFS LEXIS 119, 2 Houston, Texas 77056 (713) 403-8210 (713) 403-8299 (facsimile) Trial Counsel Jessica Z. Barger E. Marie Jamison WRIGHT CLOSE & BARGER, LLP One Riverway, Suite 2200 Houston, Texas 77056 (713) 572-4321 (713) 572-4320 (facsimile) Trial and Appellate Counsel Chris C. Pappas Andrew J. Sarne Kimberly C. Clark KANE RUSSELL COLEMAN LOGAN PC 5051 Westheimer Road, Suite 1000 Houston, Texas 77056 (713) 425-7400 (713) 425-7700 (facsimile) Trial and Appellate Counsel Nonparties to Appeal: Scott Favre, Scott M. Favre Public Adjuster, LLC and Precision Marketing Group, LLC Counsel for Nonparties: Todd Taylor Jocelyn A. Holland JOHANSON & FAIRLESS 1456 First Colony Boulevard Sugar [3] Land, Texas 77479 (281) 313-5000 (281) 340-5100 (facsimile) Trial and Appellate Counsel RECORD REFERENCES Page 5 of 40 2025 TX APP. CT. BRIEFS LEXIS 119, 3 CR Clerk Record consisting of fourteen volumes, the first number preceding CR represents the volume and the first number following CR represents the pinpoint cite within that record. RR Reporter Record consisting of forty-three volumes, the first number preceding RR represents the volume and the first number following RR represents the page number within that volume. PX Plaintiffs trial exhibits contained in volumes 14 through 32 of the Reporter Record, the number following the PX represents the exhibit number. DX Defendants' trial exhibits contained in volumes 33 through 43 of the Reporter Record, the number following the DX represents the exhibit number. App. Tab Documents included in the Appendix to this Brief, which contains an index organized by numbered Tabs. STATEMENT OF THE CASE Nature of Case Pohl 1 sued Kassab 2 for theft of trade secrets, conversion, and civil conspiracy. App. [4] Tab 1 (1CR99-261). Pohl's former clients assigned barratry claims to Kassab, and Kassab asserted those claims against Pohl as counterclaims. 1CR43-50. Trial Court The 281st Judicial District Court, Harris County, Texas; Honorable Christine Weems. Proceedings The trial court denied summary judgment on Pohl's claims, 3 but granted summary judgment on Kassab's counterclaims. App. Tab 3 (2CR892). Pohl's claims were tried to a jury who found in Pohl's favor. App. Tab 8 (13CR10919-10951). Disposition Kassab's post-trial motions were either denied or overruled byoperation of law 4 and the trial court entered judgment on the verdict. App. Tab 10 (14CR11290-11328). STATEMENT REGARDING ORAL ARGUMENT This appeal involves multiple legal questions, some of first impression, that have far-reaching implications on the application of trade-secret law to [5] the legal profession: . Whether a lawyer can claim property of the client -- such as attorney-client contracts and lists created from that information -- as his own protectable trade secret. . Whether a lawyer's obligation to keep client-related information confidential creates a trade secret belonging to the lawyer. 1 Appellees Michael Pohl and Law Office of Michael A. Pohl, PLLC. 2 Appellants Lance Christopher Kassab and Law Offices of Lance Christopher Kassab, PC. 3 App. Tab 2 (1CR358); App. Tab 6 (10CR7851); 2RR3, 75. 4 The trial court only signed an order denying Kassab's first motion for new trial based on evidence of witness tampering. See App. Tab 9 (14CR11287). Others were denied by operation of law. Page 6 of 40 2025 TX APP. CT. BRIEFS LEXIS 119, 5 . Whether "actual loss" under the Texas Uniform Trade Secrets Act ("TUTSA") includes attorney's fees incurred by a lawyer defending against claims and grievances brought by his former clients. . Whether the disclosing lawyer is privileged or immune from liability for his use of client identities and contracts to disclose criminal misconduct to those clients, the courts, and the State Bar. The importance and complexity of these questions underscores the value of oral argument in assisting the Court's deliberation. ISSUES PRESENTED 1. Any judgment for liability should be reversed and a take-nothing judgment entered because, as a matter of law: (a) Pohl did not own the purported trade secrets; (b) the disputed materials were not trade secrets; (c) there was no misappropriation; (d) the claims were barred by limitations; and (e) the claims were barred [6] by privilege and immunity. 2. Alternatively, the judgment should be reformed to eliminate elements of damages that cannot be recovered as a matter of law. Specifically: (a) exemplary damages cannot be recovered because of the lack of unanimity in answering the predicate liability question; (b) attorney's fees incurred in previous litigation or in defense of grievance proceedings cannot be recovered under TUTSA as actual damages; (c) other actual damages should be eliminated or reduced because there is no evidence of market value or development costs and Pohl cannot recover both; (d) joint-and-several liability is improper because conspiracy claims are preempted; and (e) if these unrecoverable damages are eliminated, the damages do not exceed the settlement credit and Pohl cannot recover anything. 3. Alternatively, the judgment should be reversed and remanded for new trial because: (a) the trial court improperly denied Kassab's timely designation of responsible third parties; (b) Pohl engaged in bribery and tampered with material witnesses whose testimony impacted the trial; (c) the trial court improperly denied relevant and material discovery based on privilege, notwithstanding [7] Pohl's offensive use; (d) the trial court improperly refused to submit Kassab's proposed jury question on immunity and privilege; and (e) there is factually insufficient evidence that Pohl owned a purported trade secret, took reasonable measures to protect that trade secret, or that Kassab misappropriated a trade secret. 4. The trial court erred by dismissing Kassab's counterclaims for civil barratry because those claims were not barred by limitations or res judicata and the assignments were valid. STATEMENT OF THE FACTS Pohl engages marketers to commit barratry, is sued by them, and fails to protect client-related information he now claims as his trade secrets . In 2012, Texas attorney Michael Pohl engaged Scott Walker, Steve Seymour, and Kirk Ladner (collectively "the marketers") and their entity Precision Marketing Group, LLC ("Precision"), Page 7 of 40 2025 TX APP. CT. BRIEFS LEXIS 119, 7 agreeing "to pay them a finder's fee for clients they solicited and a percentage of attorney's fees recovered after the solicited clients' cases settled." 5 Kassab v. Pohl, 612 S.W.3d 571, 574 (Tex. App.--Houston [1st Dist.] 2020, pet. denied). The marketers contacted Mississippi people and businesses to determine whether they had claims against British Petroleum [8] ("BP"), encouraged them to retain Pohl, and were paid over $ 5 million in "barratry pass-through money" for their services. 6 Id. "A list of [Pohl's] actual and prospective clients was maintained by [Precision] for its business dealings with Pohl." 7 Id. Precision and the marketers sued Pohl in federal court in October 2014, alleging failure to pay a percentage of the attorney's fees for the claims obtained from their efforts. 8 Id. Several months later, the marketers assigned their interests in their firms and all information derived therefrom, as well as any claims they had against Pohl, to Precision, which was sold to Scott Favre. 5RR29-31, 89-93; DX25; DX26; DX27. That same month, Pohl's lawyer contacted counsel for Farve and the marketers, Tina Nicholson, demanding return of "original contracts" between Pohl and his clients; but did not claim that the materials were his trade secrets. 6RR153-154, 161; PX72. When this demand was refused, 3CR2439-2441, Pohl did not sue the marketers for theft of trade secrets. 6RR117, 215-216. [9] Pohl filed conversion counterclaims against them, seeking money, but not the original contracts. 6RR216; DX59. Pohl alleged that he provided "proprietary information" to Precision, but never claimed it was a trade secret. PX82.002. Pohl never asked a court to order the client contracts or other information returned to him. 6RR120, 216. Instead, the information was freely exchanged amongst the parties and their lawyers, without a protective order. 5RR28, 151; 6RR120; 8RR96, 98-99. When Pohl discovered Precision was disclosing its own marketing lists to Texas lawyers, Pohl sought discovery of those efforts. PX82.002. Precision opposed disclosure, and Favre testified that the lists were Precision's own proprietary information and confidential. PX80. Pohl moved to compel the information, arguing it was discoverable notwithstanding any confidentiality; the court agreed. PX82. In April 2017, Pohl settled with the marketers and Favre, paying them more than $ 800,000 in exchange for mutual releases and return of information that identified Pohl's current or former clients. DX34; 5RR237-238; 6RR71-72. Kassab obtains non-protected information related to Pohl's barratry andnotifies [10] the victims who retain Kassab topursue civilclaims and grievances against Pohl . Lance Kassab is a lawyer of 29 years who after serving as a briefing attorney for the First Court of Appeals dedicated his practice to representing victims of attorney misconduct. 4RR208- 5 DX72; DX73; DX74; DX75. 6 10CR8502-8503, 8506 (testimony from case runner); 11CR8677-8701, 8706-8713, 8739-8768, 90429072 (testimony from barratry victims). 7 PX116; DX41. 8 DX64. Page 8 of 40 2025 TX APP. CT. BRIEFS LEXIS 119, 10 210. In 2015, Kassab began investigating whether Pohl victimized clients through barratry. 4RR215-217, 219; 5RR36-37. During his investigation, Kassab obtained publicly filed lists, pleadings, and other documents that identified Pohl's clients and contained evidence of barratry. 4RR220- 221. Before the entry of a confidentiality order, 9 Kassab received information from Favre and Nicholson. 5RR28, 43, 50-51. That information included depositions, exhibits, and lists identifying clients that Precision had solicited for Pohl. 5RR99, 149151; PX99; DX49. Kassab also obtained information from publicly filed documents, such as contracts pertaining to barratry [11] victims, 3RR2997-3075, none of which was stamped "confidential" or "trade secret." 5RR26-27. In November 2016, Kassab entered a joint venture with Nicholson and attorney Douglas Montague to pursue claims against Pohl, PX84, and retained Favre's public-adjusting company to opine on the value of the underlying BP claims that Pohl had untimely rejected. PX1; 4RR70- 71; 5RR38-40. From 2015 to 2017, Kassab sent State Bar-approved letters to Pohl's former clients, notifying them that they may have been unlawfully solicited. 5RR36-37; PX122; DX128; DX156. Hundreds of clients responded and retained Kassab to pursue barratry and negligence claims against Pohl. PX121. None of the individuals objected to Kassab having their contact information. 10 5RR46. Kassab filed four lawsuits against Pohl on behalf of hundreds of clients: two cases involving claimants from the BP litigation - Brumfield and Gandy - and two cases involving auto- accident victims illegally solicited by Pohl - Berry [12] and Cheatham. 5RR49- 50. Kassab and several of his clients also filed grievances against Pohl. 4RR167-168 171172; PX128. The Brumfield and Gandy cases were dismissed on limitations. 5RR50; Gandy v. Williamson, 634 S.W.3d 214 (Tex. App.--Houston [1st Dist.] 2021, pet. denied); Brumfield v. Williamson, 634 S.W.3d 170 (Tex. App.--Houston [1st Dist.] 2021, pet. denied). Pohl paid $ 150,000 to settle the Berry case. 5RR51-52, 228-229. The Cheatham case was dismissed on summary judgment but reversed on appeal. 5RR53; Cheatham v. Pohl, 690 S.W.3d 322 (Tex. App.--Houston [1st Dist.] 2022, pet. granted). All the grievances against Pohl were dismissed, primarily on limitations. 4RR188-195, 198; PX107; PX108; PX109. Pohl files this retaliatory lawsuit against Kassab to recover costs incurred defending the barratry claims, and Kassab suffers several adverse rulings . In August 2018, Pohl filed this retaliation lawsuit against Kassab, Precision, Favre, Nicholson, and Montague, alleging a conspiracy to "illegally obtain[], maintain[], and use[] confidential information and property belonging to Pohl." 1CR27-37. Pohl alleged that Precision, Favre, and Nicholson stole Pohl's information and then sold it to Kassab who "solicited those clients to act as plaintiffs ... to bring cases against Pohl for alleged barratry and other claims." 1CR99-261; 9 The court entered a confidentiality order in March 2017, which did not apply to documents previously produced and required any document subject to the order to be marked "confidential." PX95; 8RR25-26, 92-93, 96. Documents provided to Kassab were not. 5RR26-27. 10 Pohl funded two grievances against Kassab brought by two of Pohl's clients after Pohl sent them letters urging them to sue Kassab. 6RR109-111; PX131. Both grievances were dismissed. 5RR48; DX134, 137. Page 9 of 40 2025 TX APP. CT. BRIEFS LEXIS 119, 12 App. Tab 1 [13] . Pohl sued Favre and Precision for breach of their settlement agreement, and all defendants for conversion, violations of TUTSA, and conspiracy. 1CR108-110. Pohl sought attorney's fees he incurred defending against the barratry litigation and grievances. 11CR9530- 9533. Kassab answered, asserting affirmative defenses, and counterclaimed for civil barratry. 11 1CR40-52. Kassab moved for traditional summary judgment on Pohl's claims, arguing they were barred by limitations and attorney immunity. 1CR262-335. The trial court denied that motion. 1CR358; App. Tab 2. Pohl moved for summary judgment on Kassab's barratry counterclaims, arguing limitations and res judicata, and that the assignments were invalid. 1CR358-405. The trial court granted that motion. 2CR892; App. Tab 3. Kassab moved to exclude Pohl from testifying as an expert witness on the value of the purported trade secrets for failing to comply with disclosure requirements. 2CR964-1005. The trial court denied that motion. 10CR7844; App. Tab 4. [14] Kassab moved to designate responsible third parties (RTPs) who contributed to the loss of Pohl's purported trade secrets, including Walker, Ladner, Seymour, and others. 2RR909-920. The trial court denied that motion. 10CR7850; App. Tab 5. Before trial, Pohl nonsuited Favre and Precision. 10CR8346. Kassab moved to designate them as RTPs. 12CR9562-9571. The trial court only granted leave to designate Favre and Precision as RTPs, but no others. 12 13CR10611. Kassab moved for traditional summary judgment on the grounds that Pohl's claims were barred by immunity and privilege, limitations, the unlawful-acts doctrine, and Pohl's inability to recover attorney's fees from the barratry grievances and litigation as actual damages. 2CR1140-1744; 3CR1746-2052; 4CR3519-3571. Kassab incorporated Nicholson's summary-judgment motion, which argued that the information at issue was not a trade secret. 3CR2053-2127. The trial court denied those motions. 10CR7851; App. Tab 6. Kassab moved to compel discovery based on the offensive-use doctrine, including: (1) unredacted invoices and information related to the attorney's fees incurred [15] by Pohl in the underlying barratry grievances and litigation; (2) information relevant to Kassab's limitations defense; and (3) outcome-determinative information over which Pohl claimed privilege. 8RR6079-6962; 9CR6964-7620. The trial court denied that motion. 10CR7978; App. Tab 7. After the case was transferred from the 189th District Court to the 281st District Court, 10CR8358, Kassab requested reconsideration of the ruling on the offensive-use motion. 10CR8359-8366. Kassab also filed new summary-judgment motions containing additional evidence to allow the successor judge to rule on dispositive legal issues. 10CR8367-8591; 11CR8593-9554. The trial court denied Kassab's offensive-use and summary-judgment motions. 2RR3, 75. 11 Kassab's clients in the barratry litigation had assigned their claims against Pohl to Kassab before any final judgment on those claims had been entered. 1CR95, 451-453, 768. 12 Although the trial court stated it would grant leave to designate Walker, Ladner, and Seymour as RTPs, 2RR72-73, it did not sign the proposed order that was submitted, 13CR10737-10740, and did not accept Kassab's proposed jury question identifying them as RTPs. 13CR10901. Page 10 of 40 2025 TX APP. CT. BRIEFS LEXIS 119, 15 The trial court allows Pohl to provide improper opinion testimony and enters judgment against Kassab for actual damages that included fees for defending against grievances and exemplary damages without a unanimous verdict . Before trial, Pohl nonsuited claims against all remaining parties, 10CR7852, 8357, leaving Kassab as the only defendant. When Kassab re-urged his motion to exclude Pohl's testimony about purported value of the [16] information, 13CR10349-10417, the trial court ultimately permitted Pohl to testify on the issue. 3RR188-198; 6RR12-23, 42. The trial court also permitted Pohl and his expert to testify about attorney's fees and expenses Pohl incurred in the underlying barratry proceedings, despite withholding un-redacted invoices and underlying information based on privilege. 8RR47- 51, 57-58. The jury answered "yes" to Question 1, which asked whether Pohl owned a trade secret in attorney-client fee contracts or lists identifying his clients. 13CR10924; App. Tab 8. The jury found that Kassab and Favre, Nicholson, and Montague misappropriated trade secrets, but that Precision did not. 13CR10925-10926. The jury also found that Pohl's "wrongful conduct" contributed to his injury, but did not apportion any fault to Pohl. 13CR10950-10951. Although the jury found there was clear and convincing evidence that Kassab engaged in willful and malicious misappropriation, 13CR10942, that finding was not unanimous. 13CR10950. The jury found damages of $ 1,408,804 in attorney's fees, expenses, and costs that Pohl incurred in connection with "lawsuits, appeals and grievances that Kassab filed against Pohl." [17] 13CR10931-10932. The jury also found $ 250,000 for the price that a willing buyer and a willing seller would have agreed on as a fair price for Kassab's use of the purported trade secret, and $ 200,000 for the value of development costs that Kassab avoided by allegedly misappropriating the purported trade secret. 13CR10932. The jury also found Pohl incurred attorney's fees in connection with this litigation, including appellate fees. 13CR10934. And despite not answering the predicate liability question for exemplary damages unanimously, the jury assessed $ 3 million in exemplary damages against Kassab. 13CR10944. Pohl did not object to any inconsistencies, moved the trial court to accept the verdict, 10RR9, and then moved to enter judgment. 13CR10953-10960. Before a judgment was signed, Walker contacted Kassab and confessed that Pohl had promised Walker and Ladner part of any judgment against Kassab if they would testify in favor of Pohl, which they did. 14CR11112- 11122, 11125-11127. Based on that admission, Kassab moved for a new trial based on witness tampering and fraud on the court. 14CR11100-11140. The trial court denied that motion. 14CR11287; App. Tab 9. The trial court [18] then entered final judgment against Kassab, awarding Pohl $ 1,452,040 in actual damages, $ 1,232,013 in attorney's fees and conditional appellate fees, and $ 3 million in exemplary damages, plus interest. 14CR11290-11328; App. Tab 10. Kassab filed motions for judgment notwithstanding the verdict, 14CR11329- 11370, for new trial, 14CR11371-11505, and to modify, correct, or reform the judgment. 14CR11506- 11526. These motions were overruled by operation of law, and Kassab appealed. 14CR11698-11700. Page 11 of 40 2025 TX APP. CT. BRIEFS LEXIS 119, 18 SUMMARY OF ARGUMENT Kassab lawfully alerted Pohl's former clients, the courts, and the State Bar to Pohl's unlawful barratry. In retaliation, Pohl filed this lawsuit, alleging the clients' information - lists of their identities and attorney-client contracts - were trade secrets owned by Pohl, and seeking to recover from Kassab fees Pohl incurred defending against claims those very clients filed against him. The trial court improperly allowed Pohl's lawsuit to proceed to trial even though it was barred by limitations, privilege, and immunity, and then improperly entered judgment even though the information was not a trade secret, Pohl did not own the information or keep it secret, and [19] there was no evidence that Kassab engaged in misappropriation. The trial court also refused to submit RTPs, improperly denied Kassab relevant and material discovery, held Kassab responsible for attorney's fees incurred by Pohl in the barratry litigation and grievances, held Kassab responsible for damages apportioned to his improperly alleged co- conspirators, and assessed exemplary damages against Kassab without a unanimous jury finding on predicate liability. The trial court also improperly dismissed Kassab's barratry counterclaims that were assigned to him, even though those claims were revived when Pohl filed this lawsuit. Judgment should be reversed and rendered in favor of Kassab. Alternatively, the judgment should be substantially reduced, or the case should be remanded for a new trial. Independently, the trial court's dismissal of Kassab's counterclaims should be reversed and remanded. ARGUMENT 1. Judgment for liability should be reversed and a take-nothing judgment entered. Judgment against Kassab should be reversed and a take-nothing judgment entered, either because there is no evidence to support essential elements of Pohl's claims or because Kassab proved his affirmative [20] defenses as a matter of law. A. Pohl does not own the disputed materials. To prove a TUTSA violation, a plaintiff must first demonstrate ownership of a trade secret. FMC Techs. v. Murphy, 679 S.W.3d 788, 809 (Tex. App.--Houston [1st Dist.] 2023, pet. denied). An "owner" is the entity in which rightful, legal, or equitable title to the trade secret is reposed. C.P.R.C. §134A.002(3-a). Pohl did not demonstrate ownership over the disputed materials as a matter of law. The attorney-client fee contracts are owned by the client, not Pohl. See In re George, 28 S.W.3d 511, 516 (Tex. 2000) ("work product generated by the attorney in representing the client belongs to the client.") (emphasis added); In re McCann, 422 S.W.3d 701, 704-705 (Tex. Crim. App. 2013) (" client owns the contents of his or her file.") (emphasis added). Pohl Page 12 of 40 2025 TX APP. CT. BRIEFS LEXIS 119, 20 acknowledged this. 13 That Pohl can assert a lien over the client file does not mean he is the rightful, legal, or equitable owner of the contracts. See McCann, 422 S.W.3d at [21] 706 ("a lien, by its definition, is a transitory interest in someone else's property and, therefore, the attorney asserting such a lien never owns the property at issue, the client owns the file by implication (if the attorney does not)") (emphasis added). Additionally, Pohl does not own the list of the clients' identities and contact information. 8RR10924. Pohl testified that he did not create the list. 5RR243-244. Although Pohl had a client list prepared, it did not list the client's contact information. PX116; DX41. The marketers owned the lists and other information that they sold to Precision, which Precision then sold to Favre. 6RR106; PX67, 68, 69. Favre testified that he owned the lists and information he would eventually provide to Kassab and Montague, from which Montague would use to create the master list. 5RR34-35; 6RR38-40, 107; DX5; PX79. Because Pohl does not own the disputed materials, his TUTSA claim fails as a matter of law. See RMS Software Dev. v. LCS, Inc., No. 01-96-00824-CV, 1998 WL 74245, at 4 (Tex. App.-- Houston [1st Dist.] Feb. 19, 1998, no pet.) (unpublished) ("RMS is not the owner of the trade secret involved in this lawsuit, thus it has no standing to sue for misappropriation of that secret."); Fish v. Tex. Legislative Serv., P'ship, No. [22] 03-10- 00358-CV, 2012 WL 254613, at 13 (Tex. App.--Austin Jan. 27, 2012, no pet.) (mem. op.) (affirming dismissal of trade-secret claim because plaintiff "uses but does not own the rights to" information at issue); see also Governo Law Firm LLC v. CMBG3 Law LLC, No. 1684CV03949-BLS2, 2023 Mass. Super. LEXIS 11, 64 (Mass. Super. Ct. Feb. 24, 2023) (law firm could not establish damages from "defendants['] use of materials that belong to their clients"). B. Regardless of who owns the disputed materials, they are not trade secrets. For the disputed information to be a trade secret, Pohl was required to show that (1) he had "taken reasonable measures under the circumstances to keep the information secret," and (2) the information "derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, another person who can obtain economic value from the disclosure or use of the information." C.P.R.C. §134A.002(6)(B). No evidence supports either element. 1. The information is not secret. Pohl presented no evidence regarding steps he took to keep the subject information secret. Pohl testified that his "trade secret" was the information derived from his contracts that [23] allowed Kassab to discover his client base. 6RR28. But Pohl did nothing to keep his client base secret. Everyone working for Precision, the opposing parties in the underlying case, and the parties and their attorneys in the Mississippi litigation knew who his clients were. "[O]nce a trade 13 6RR28, 108-110 (clients owned their files, including personal information; Pohl informed clients that " their files were taken" and referred to information as " a client's private files.") (emphasis added); 6RR129 (clients own their information); see 5RR204 (if client asked for their file, Pohl had obligation to return it). Page 13 of 40 2025 TX APP. CT. BRIEFS LEXIS 119, 23 secret is made public all ownership is lost." INEOS Grp. Ltd. v. Chevron Phillips, 312 S.W.3d 843, 852 (Tex. App.--Houston [1st Dist.] 2009, no pet.). There is no evidence that Pohl protected the information as a trade secret. Before filing this suit, neither Pohl nor his staff considered his client base his trade secret. Pohl's office manager of more than 30 years testified that Pohl never indicated that the information was his trade secret. 7RR114, 158. Therefore, she did not consider the attorney-client contracts to be Pohl's trade secret, nor did she attempt to secure them in any way. 7RR127-128. Rather, she kept the client files at her home in two unlocked filing cabinets because Pohl never gave her instructions on how to secure those files. 7RR157. Pohl provided marketing materials to Precision to distribute that publicly disclosed the clients he represented and contained copies of his fee agreements. PX119.004-005; 5RR207-208. Those blank fee agreements [24] were not marked trade secret or confidential. PX119.007- 016. In fact, the agreements indicated that because Pohl represented multiple clients, "public information" about the clients would be shared. PX119.010. Likewise, no contract or list had any indication it was a trade secret. 5RR27; 8RR96, 98-99. No client list was marked confidential, let alone trade secret. PX116; DX41; DX49. And the two Pohl contracts in evidence - pertaining to Lacy Reese and Mark Cheatham - were not marked confidential or trade secret and were publicly filed in the Mississippi litigation. PX143; DX99; 5RR126-129. Furthermore, none of Pohl's contracts with the marketers required them to keep any information about Pohl's client base secret or even confidential. 6RR114; PX28; PX29; PX30; PX32; PX33; PX34; PX42. Although Pohl claimed to have an oral agreement with the marketers to do so, 5RR97-98; 6RR114, the written agreements stated they were the "entire binding contract between both parties," there were "no other agreements or contracts between them," and the agreement "may not be modified" except by written agreement. PX28.002. After Precision acquired clients for Pohl, those clients were sent to [25] Pohl's co counsel's office, so anyone there knew Pohl's client base without any agreement to keep it secret. 5RR181. Pohl submitted his clients' claims to BP with identifying information, including "[f]inancial records, tax returns, Social Security numbers, e-mails, cell phone numbers, addresses," among other things. 5RR202-203. Pohl's office manager set up the BP claim portal and gave everyone passwords to access the claims being filed and any related claim information. 7RR160-161. Likewise, Pohl submitted auto-accident clients to General Motors ("GM") through a settlement program. 5RR224-226. There is no evidence that either BP or GM or their lawyers had any agreement with Pohl to keep disclosed client information secret. Other auto-accident cases were involved in public litigation, and their contracts with Pohl were publicly filed when a dispute arose between Pohl and the marketers, before Favre had provided that same information to Kassab. 5RR43-44, 53-54, 126-129; DX99. When the dispute between Pohl and the marketers arose, Pohl did not treat the disputed information as his trade secret. Pohl was only concerned about the marketers using his name in marketing material without [26] his permission. PX44; PX45; PX59; PX60; PX62. After Pohl was sued by the marketers, DX60, he demanded they return the contracts but again made no Page 14 of 40 2025 TX APP. CT. BRIEFS LEXIS 119, 26 mention that the information was his trade secret. 6RR163; PX72. Rather, Pohl claimed to need the information "to address client matters relating to the deadline" for filing claims in the BP litigation. PX72.004. The marketers refused to return the information, 3CR2439-2441, and transferred it from Pohl's Mississippi office to their unsecured garage. 6RR69-70. Thereafter, the marketers sold Precision and its information to Favre. 6RR120; PX67; PX68; PX69; PX79. When that occurred, Pohl claimed that the marketers and Favre had misappropriated his "proprietary information" - but not trade-secrets - for "their own use in breach of their express contracts." PX82.002-003. But Pohl did not sue the marketers for theft of trade secrets or seek judicial relief against them or Favre to order the information returned. 6RR114-115, 117, 120, 216, 226; DX59. Although Pohl's trade-secret expert testified that obtaining a restraining order or injunction to prevent disclosure of the information is a "key event" in trade-secret cases, he acknowledged that [27] Pohl never sought that relief. 8RR79-79, 85. Instead, Pohl allowed unfettered access to the information to his adversaries, whom he described as "not credible," untrustworthy, and a convicted felon. 6RR118-119, 131-132. The careless exchange of the disputed information in the Mississippi litigation also negates secrecy. Most notably, Pohl's own counsel caused the master list identifying Pohl's client base to be publicly published on PACER in October 2017. 6RR123-124. Before being provided to Kassab, the parties in the Mississippi litigation, including Pohl and other defendants, freely produced information identifying Pohl's client base, including lists of Pohl clients with contact information, without a protective order or a confidentiality agreement. 14 5RR26-28, 43-45, 50- 51, 149-151; 6RR120; 8RR96-99; DX41-47, 49. In fact, Pohl opposed Precision's efforts to keep the marketing lists secret, arguing that the information is "relevant and discoverable." 6RR166- 167; PX82. The sole contrary "evidence" is Pohl's testimony that he allegedly took steps "to ensure the confidentiality of the people with whom [he] had an attorney-client relationship" by oral "confidentiality [28] agreements" with the marketers and maintaining the information in a building with limited access, in filing cabinets that may not have been locked. 5RR197-198. But that conclusory, self-serving testimony fails to negate any of the preceding specific evidence of the numerous times that Pohl failed to treat the information as a trade secret. See Windrum v. Kareh, 581 S.W.3d 761, 770 (Tex. 2019) ("When the evidence presented to the jury is conclusory, it is considered no evidence.") Regardless, Pohl's testimony about efforts to maintain attorney-client confidentiality is not relevant. Pohl improperly conflated attorney-client confidentiality with trade secrecy. See 5RR197-198 (disputed materials were protected by "attorneyclient privilege" as "attorney-client contracts with the client submitting lots of personal data."); 5RR203 ("all the information contained in the files and gathered from the clients was privileged information and had to be protected."); 5RR205 (information is "personal to the families and their businesses" and "its attorney-client privilege."); 6RR29-30 (materials were "privileged" and "private" because of "attorney-client confidential information in them"); 6RR36 (referring to information as [29] 14 Supra n. 9. Page 15 of 40 2025 TX APP. CT. BRIEFS LEXIS 119, 29 "attorney-client privileged files"); 6RR131 ("the attorney-client privileged files is the stuff, and it went to Mr. Kassab."). However, this Court has held that "confidential information is not necessarily a trade secret." Reynolds v. Sanchez Oil & Gas Corp., No. 01-18-00940-CV, 2023 WL 8262764, at 18 (Tex. App.--Houston [1st Dist.] Nov. 30, 2023, no pet.) (mem. op.). And keeping information confidential pursuant to ethical rules governing lawyers is not the same as taking reasonable measures to protect information as a trade secret. 15 See Traverse Therapy Servs., PLLC v. Sadler-Bridges Wellness Grp., PLLC, No. C23-1239, 2024 WL 1701970, at 2 (W.D. Wash. 2024) (rejecting plaintiff's effort to "conflate[] the mere existence of a patient list that it is legally required to keep confidential per [HIPPA] with a trade secret," stating "[t]he information was restricted, but ... pursuant to HIPAA, not to keep trade secret information confidential."). At best, "[t]he efforts made by [Pohl] to maintain secrecy of the alleged trade secrets appear to be no more than the usual precautions taken by a law firm to ensure clients' files remain [30] confidential." Early, Ludwick & Sweeney, LLC v. Steele, No. CV 980409063S, 1998 WL 516156, at 3 (Conn. Super. Ct. 1998) (rejecting law firm's claim of trade-secret protection over client-related materials). This Court also has held that "[v]igilance in guarding the trade secret is required because, once the information is publicly revealed through the owner's lack of vigilance, it is no longer a trade secret; the element of secrecy is gone." INEOS Grp., 312 S.W.3d at 852. Pohl's client base was public information that he was not vigilant in keeping secret; he freely disclosed it to adversaries without any promise of secrecy. "The unrestricted disclosure of trade-secret information to third parties, outside the context of a confidential relationship, destroys the trade- secret status of the information." Id.; Shufood LLC v. Rong Liu, No. 01-21-00463-CV, 2024 WL 4628402, at 18 (Tex. App.-- Houston [1st Dist.] Oct. 31, 2024, no pet.) (mem. op.) (information not "labeled or identified as confidential" and disclosed to "members or employees" of restaurant without requirement "to sign a confidentiality agreement" was not trade secret); Univ. of Hous. Sys. v. Jim Olive Photography, 580 S.W.3d 360, 376 (Tex. App.--Houston [1st Dist.] 2019), aff'd, 624 S.W.3d 764 (Tex. 2021) (disclosure of purported trade secret "results in a loss of the property interest and the economic value [31] of the competitive advantage inherent in the trade secret."). 16 As a matter of law, the contracts and client lists at issue are not privileged or confidential. See Simpson v. Tennant, 871 S.W.2d 301, 309 (Tex. App.--Houston [14th Dist.] 1994, no writ) ("the identity of an attorney's client is generally not privileged.") Landry v. Burge, No. 05-99-01217- CV, 2000 WL 1456471, at 7 (Tex. App.--Dallas Oct. 2, 2000, no pet.) (unpublished) (identity of client is not "confidential information" under disciplinary rule because opposing party "had a right to know the identity" of client); Jim Walter Homes, Inc. v. Foster, 593 S.W.2d 749, 752 (Tex. 15 Pohl's own expert acknowledged this, testifying that although disciplinary rules require a lawyer to maintain confidentiality of client-related information, that does not make it a trade secret. 8RR120- 121. 16 See also Sci. Mach. & Welding, Inc. v. Rose, No. 03-20-00564-CV, 2022 WL 850409, at 2 (Tex. App.-- Austin Mar. 23, 2022, no pet. h.) (mem. op.) (no trade secret when, "despite having the opportunity under a protective order to designate the drawings as 'confidential' during this litigation, [party] failed to do so and produced them without such designation."); Baxter & Assocs., L.L.C. v. D&D Elevators, Inc., No. 05-16-00330-CV, 2017 WL 604043, at 2 (Tex. App.--Dallas Feb. 15, 2017, no pet.) (mem. op.) (information not trade secret when "the 'customer lists' in question are not labeled as confidential or proprietary"). Page 16 of 40 2025 TX APP. CT. BRIEFS LEXIS 119, 31 Civ. App.--Eastland 1979, no writ) ("fee arrangement is not privileged."). But even if the information is confidential, there is legally insufficient evidence that Pohl took reasonable measures to keep it secret. 2. The information did not derive independent economic value because it did not provide Pohl with [32] a competitive advantage. Pohl also was required to prove that the contracts or compilation of client contact information provided him with a "competitive advantage" and had "value independent of its component parts." FMC Techs., 679 S.W.3d at 814. Pohl presented no evidence of that. To the contrary, Pohl agreed he could not profit from the information. 6RR36-37 ("I didn't have the legal right to sell my attorney-client privileged files to anybody."). Pohl is correct. As a matter of law, Pohl cannot have a "competitive advantage" by using the client-related information to the exclusion of the potential, actual, and rejected clients. See ERI Consulting Eng'rs, Inc. v. Swinnea, 318 S.W.3d 867, 872 (Tex. 2010) ("if the fiduciary ... acquires any interest adverse to his principal, without a full disclosure, it is a betrayal of his trust and a breach of confidence, and he must account to his principal for all he has received."); T.D.R.P.C. 1.05(b)(4) (lawyer may not use "privileged information of a client for the advantage of the lawyer or of a third person, unless the client consents after consultation."); id. 1.08(f) (prohibiting lawyer from "acquir[ing] a proprietary interest in the cause of action or subject [33] matter of litigation the lawyer is conducting for a client"). Pohl's only "advantage" was to keep the identities of unlawfully solicited individuals from lawyers like Kassab who could blow the whistle on Pohl by informing those individuals and the State Bar about Pohl's unlawful solicitation. 5RR203-205 (it "was distressing" to Pohl when he learned client files were going "to be held as evidence" for future barratry lawsuits against him). That "advantage" is not only against public policy that favors disclosure of criminal conduct, 17 but is insufficient to qualify as independent economic value under TUTSA. See FMC Techs., 679 S.W.3d at 814. Because Pohl could not and would not have sold the list identifying his clients, 6RR37, the list provided Pohl with no economic advantage and is not a trade secret. C. There was no misappropriation as a matter of law. To be liable for misappropriation of a trade secret, Kassab must "know[] or ha[ve] reason to know that the trade secret was acquired by improper means" or "derived from or through a person who used improper means to acquire the trade secret." C.P.R.C. §§134A.002(3)(A), (B)(ii)(a). There is no evidence of either requirement. 17 "[P]ublic policy strongly favors exposure of crime." Wal-Mart Stores, Inc. v. Medina, 814 S.W.2d 71, 73 (Tex. App.--Corpus Christi 1991, writ denied). Kassab had an ethical obligation to notify the State Bar and the affected individuals of Pohl's misconduct under the rules of ethics. See T.D.R.P.C. 8.03(a) ("a lawyer having knowledge that another lawyer has committed a violation of applicable rules of professional conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate disciplinary authority."); id. at Cmt. 1 ("Reporting a violation is especially important where the victim is unlikely to discover the offense."). [34] Kassab was doing what Pohl should have done, disclosing misconduct to the individuals. See Cluck v. Mecom, 401 S.W.3d 110, 114 (Tex. App.--Houston [14th Dist.] 2011, pet. denied) ("A fiduciary has an affirmative duty to make a full and accurate confession of all his fiduciary activities, transactions, profits, and mistakes."). Page 17 of 40 2025 TX APP. CT. BRIEFS LEXIS 119, 34 Pohl did not allege that Kassab committed direct misappropriation. Rather, Pohl alleged that Favre and Precision illegally misappropriated trade secrets from him, and that Kassab subsequently committed indirect misappropriation by acquiring the information from Favre and Precision. [35] 18 Precision was designated as an RTP and defined in the charge to include the marketers before May 12, 2015, and Favre thereafter. 13CR10923. When the jury was asked whether Precision misappropriated trade secrets from Pohl, it found that Precision did not. 13CR10926. The jury answered "0" when assigning proportional responsibility to Precision. 13CR10928. There is no evidence that Kassab engaged in misappropriation. If Precision and its former owners did not engage [36] in misappropriation by wrongfully acquiring the information and then selling it to Favre - as the jury found - then Favre could not have acquired the information by improper means. In other words, the jury's failure to find that Precision misappropriated anything precludes derivative liability against Kassab for indirect misappropriation. Even if liability against Kassab is not precluded by the jury's finding of no misappropriation by Precision, there is no evidence that Kassab knew the information had been acquired by improper means. The term "improper means" "includes bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, to limit use, or to prohibit discovery of a trade secret, or espionage through electronic or other means." C.P.R.C. §134A.002(2). All other means of obtaining the information are considered proper. Id. §134A.002(4). The unrebutted evidence was that the marketers lawfully sold their interests and marketing information to Precision, that Precision lawfully sold its assets (including its files) to Favre, and the marketers certified in purchase documents that the information at issue was lawfully owned by Precision. 5RR26-27; [37] PX67; PX68; PX69; PX79; DX42; DX49. That information included "information gathered in the course of its business" like "contact information" or "information provided to or received from customers and clients." 5RR30-31; DX25; DX27. Kassab testified without contradiction that he relied on these agreements and sworn testimony from Favre that the information belonged to Precision when accepting the information and using it to notify the clients of Pohl's unlawful conduct. 5RR31-37. Accordingly, there was no evidence that Kassab knew or had reason to believe that the information was a trade secret owned by Pohl as opposed to information owned by Precision or the clients. See Tex. Disposal Sys. v. Alamo Advisors, LP, No. 07- 23-00347-CV, 2024 WL 3334654, at 5 (Tex. App.--Amarillo July 8, 2024, pet. filed) (mem. op.) (no evidence of misappropriation when "it was reasonable for [defendant] to assume" that manager's "possession of confidential information was authorized."). Even if Kassab knew that the information was confidential client information, that does not establish that Kassab knew the information lawfully obtained by Precision was a trade secret belonging to Pohl. See id. ("mere 18 1CR99-112, P21 ("Favre and Precision illegally misappropriated Pohl's proprietary and confidential information and property ...which included information about and/or communications with as many as 10,000 or more of Pohl's clients/prospective clients.") (emphasis added); P41 ("Favre, Precision, and Nicholson willfully and maliciously misappropriated Pohl's trade secrets by disclosing them via sale to Kassab and Montague ( who purchased the trade secret information knowing that it had been stolen) without the express or complied consent of Pohl.") (emphasis added); P42 ("All Defendants willfully and maliciously misappropriated Pohl's trade secrets by using them without the express or implied consent of Pohl."). Page 18 of 40 2025 TX APP. CT. BRIEFS LEXIS 119, 37 fact" that manager signed non-disclosure agreement would "not place [38] [defendant] on any obvious notice the information it received was improperly acquired."). There is certainly no evidence of willful misappropriation, which is "intentional misappropriation resulting from the conscious disregard of the rights of the owner of the trade secret." C.P.R.C. §134A.002(7). To find sufficient evidence supporting the jury's finding, the Court must "analyze the evidence supporting the malice of each defendant ... instead of group[ing] them together." Horizon Health Corp. v. Acadia Healthcare Co., 520 S.W.3d 848, 867 (Tex. 2017). Further, "evidence of the tort itself, with little more," is insufficient to support a jury's finding of malice in the theft of trade secrets. See id. The only evidence Pohl offered of Kassab's alleged malice was: (1) Kassab's filing a grievance against Pohl and copying news outlets and the district attorney (because Pohl committed conduct that was criminal and a matter of public interest); and (2) testimony that lawyer files are generally confidential. But this does not prove Kassab knew when he received the information that the information was owned by Pohl (as opposed to Precision or the clients) as his trade secret. See Tex. Disposal, 2024 WL 3334654, at 5 ("The plain language [39] of [TUTSA] indicates the relevant knowledge is at the time of the 'acquisition,' not after the party receives notice at a later date."). No evidence supported the jury's malice finding because, as demonstrated above, the uncontroverted evidence established that Kassab believed the information was never owned by Pohl and was not secret. Furthermore, the Texas Supreme Court has stated that "legally justified conduct" is "simply not probative to either establish a violation or malice." Safeshred, Inc. v. Martinez, 365 S.W.3d 655, 665 (Tex. 2012). The evidence demonstrated that Kassab had an obligation to notify Pohl's former clients and the State Bar of Pohl's unlawful conduct, and that Kassab had a right to represent Pohl's former clients in lawsuits and grievance proceedings against Pohl. 4RR140, 167-168, 171-172, 175-176, 221-222; 5RR32-33, 36-37. There was no evidence Kassab had any animosity or malice towards Pohl. 5RR46-47. Instead, Kassab was trying to protect the rights of the individuals Kassab believed Pohl had wronged and comply with his ethical obligation to report misconduct to authorities and the public. 5RR47. The evidence is further legally insufficient because Pohl "adduced no evidence that [Kassab] [40] caused [Pohl] an injury independent of and qualitatively different than the misappropriation itself." See Eagle Oil & Gas Co. v. Shale Expl., LLC, 549 S.W.3d 256, 285 (Tex. App.--Houston [1st Dist.] 2018, pet. dism'd). "[Kassab's alleged] intentional misappropriation and misuse of [Pohl's] trade secrets is not legally sufficient evidence of malice." Id. "If it were, exemplary damages would be recoverable as a matter of course in every misappropriation case, rather than the exceptional case involving egregious misconduct and injury." Id. Because the record lacks any evidence that Kassab knew the information provided to him was a trade secret belonging to Pohl, the evidence is legally insufficient to support the jury's findings of ordinary and willful misappropriation. D. The claims are barred by limitations. Page 19 of 40 2025 TX APP. CT. BRIEFS LEXIS 119, 40 Pohl's TUTSA claim fails because it is time-barred. "A person must bring suit for misappropriation of trade secrets not later than three years after the misappropriation is discovered or by the exercise of reasonable diligence should have been discovered." C.P.R.C. §16.010(a). "A misappropriation of trade secrets that continues over time is a single cause of action and the limitations period described by Subsection (a) begins running [41] without regard to whether the misappropriation is a single or continuing act." Id. §16.010(b) (emphasis added). Thus, TUTSA "explicitly precludes treating trade secret misappropriation as a continuing tort." Gen. Universal Sys. v. HAL Inc., 500 F.3d 444, 451 (5th Cir. 2007). "A cause of action for trade-secret misappropriation accrues when the trade secret is actually used." Sw. Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 721 (Tex. 2016). "Use of the trade secret means commercial use by which the offending party seeks to profit from the use of the secret." Id. That includes "any exploitation of the trade secret that is likely to result in injury to the trade secret owner or enrichment to" the non-trade secret owner. Id. Pohl alleged that Precision "stole physical copies of certain of the information, stole Pohl's computers, and misappropriated electronic data," and then "secretly sold Pohl's stolen confidential information and property to Kassab." 1CR104. In the summary-judgment record, Pohl testified that this theft of trade secrets occurred in 2014 when Kassab "and his crew" allegedly "robbed" his office and "stole his files." 11CR9511-9519. At trial, Pohl admitted that this testimony was only "suspicion." 6RR68-69. Pohl confirmed [42] that this suspected theft occurred in June 2014, and that he knew that the materials were misappropriated on that date. 5RR198-200; 6RR67-69, 114-115, 126-127. Pohl understood that the files were going to be used "as evidence in a suit that was going to be brought against [him] shortly." 5RR203-204; 6RR26. That use occurred in October 2014 when Precision and the marketers used the allegedly misappropriated information for file suit against Pohl. 3CR2227-2265; 6RR94-96, 104, 117; DX61; DX64. That is when Pohl's alleged TUTSA cause of action accrued for purposes of limitations, regardless of Kassab's involvement. See Sw. Energy, 491 S.W.3d at 721; C.P.R.C. §16.010(b). Even if the cause of action did not accrue in 2014, it unquestionably accrued in May 2015 when the marketers sold the information to Precision and Precision was sold to Favre. 6RR69- 70, 224; PX67, 68; DX25. That sale prompted Pohl to request that the information be returned to him. PX72; 6RR161-165. But Precision, the marketers, and Nicholson, an alleged co- conspirator, all refused. PX72; 6RR161-165; 3CR2439-2441. Therefore, Pohl's TUTSA claim accrued no later than May 2015 when Precision's owners enriched themselves [43] by selling the information to Favre contrary to Pohl's demand to return it. See Sw. Energy, 491 S.W.3d at 721. Although Pohl filed conversion counterclaims against Precision and its owners in October 2015, he did not sue them (or Kassab) for theft of trade secrets. 6RR117- 118; DX59. Pohl waited until August 2018 to file this retaliatory lawsuit alleging Kassab, Favre, and Precision "illegally obtained, maintained, and used trade secrets and other confidential information and property belonging to Pohl." 1CR27. This was more than three years after Pohl knew the marketers had sold the information to Favre in May 2015. Page 20 of 40 2025 TX APP. CT. BRIEFS LEXIS 119, 43 Pohl did not dispute these facts. Instead, Pohl argued that he could not have discovered the misappropriation "by Kassab" until August 2017, when he obtained Favre's consulting agreement with Kassab, which Pohl claimed evidenced a sale of the information to Kassab. 9RR118; PX100. The jury agreed. 14CR11306. But as a matter of law, the transfer or use of already-misappropriated trade secrets by a purported co-conspirator does not restart the limitations clock. See C.P.R.C. §16.010(a); Agar Corp., Inc. v. Electro Circuits Int'l, LLC, 580 S.W.3d 136, 145 (Tex. 2019) (conspiracy claim for misappropriation [44] of trade secrets accrues against all co-conspirators "when the underlying tort accrues."). In other words, "[a] conspiracy claim based on an earlier underlying tort does not re-accrue when the co- conspirators agree to commit a second tort or make another overt act." Agar Corp., 580 S.W.3d at 145. Therefore, it is irrelevant when Pohl discovered his purported trade secrets had been used "by Kassab" as opposed to other alleged co-conspirators. See id. (conspiracy claim against co-conspirator time-barred because it accrued when trade secrets were initially used by other co-conspirators, not when alleged co-conspirator later purchased information). "Accrual of limitations is a question of law for the court." Schneider Nat. Carriers, Inc. v. Bates, 147 S.W.3d 264, 274-75 (Tex. 2004). Because the evidence conclusively establishes that Pohl knew or reasonably should have known that his purported trade secrets were first used by Kassab's alleged co-conspirators more than three years before he sued Kassab, Pohl's TUTSA claims are barred by limitations. Therefore, the trial court erred by denying Kassab's motions on limitations. E. The claims are barred by privilege and immunity. Even if client information could be [45] considered Pohl's trade secrets and Pohl's claims were not time-barred, Kassab was privileged to use that information to make disclosure to the clients, to the Texas courts through the barratry litigation, and to the State Bar through the grievances. Pohl's claims against Kassab were barred by four doctrines raised by Kassab and improperly rejected by the trial court. 1. Pohl's claims are barred by privilege. "[T]rade secret law permits disclosures relevant to public health or safety, commission of crime or tort, or other matters of substantial public concern." Bartnicki v. Vopper, 532 U.S. 514, 539 (2001) (emphasis added) (citing RESTATEMENT (THIRD) OF UNFAIR COMPETITION §40, cmt. c (1995)); see also RESTATEMENT OF THE LAW, TORTS §757, cmt. d ("A privilege to disclose may also be given by the law, independently of the other's consent, in order to promote some public interest."); T.R.E. 507(a) (allowing discovery of trade secret if "nondisclosure will tend to conceal fraud or otherwise work injustice."). The uncontroverted evidence established that Kassab used the purported trade-secret information - the client's identities and contact information - to inform those barratry victims and report [46] Pohl's misconduct to the State Bar. 4RR140, 167-168, 171-172, 175-176, 221-222; 5RR32-33, 36-37; PX90; PX91; PX92; PX93; PX122. Pohl's complaint is that Kassab sent "letters to the clients where [Kassab] attached their actual contracts to his solicitation letters." 6RR132. Those letters informed the clients that Pohl "may have violated Texas law" because the contracts attached to the letters may have been procured by barratry. PX91; PX92; PX93; Page 21 of 40 2025 TX APP. CT. BRIEFS LEXIS 119, 46 PX122. Kassab was privileged to disclose the information because "there simply cannot be any trade secret about ongoing illegality." Alderson v. United States, 718 F. Supp. 2d 1186, 1200 (C.D. Cal. 2010), aff'd, 686 F.3d 791 (9th Cir. 2012). The jury found that Pohl engaged in wrongful conduct, 19 and Kassab's disclosure of that wrongful conduct to Pohl's former clients, the courts, and the State Bar falls within these privilege doctrines. See Bartnicki, 532 U.S. at 539; IBP, Inc. v. Klumpe, 101 S.W.3d 461, 475 (Tex. App.--Amarillo 2001, pet. denied) (disclosure of trade secret by lawyer in furtherance of lawsuit "was absolutely privileged"). Texas public policy promoting disclosure of criminal conduct supports [47] applying privilege here. See Goodyear Tire & Rubber Co., Hous. Chem. Plant v. Sanford, 540 S.W.2d 478, 484 (Tex. Civ. App.-- Houston [14th Dist.] 1976, no writ) (discussing public policy "to encourage the disclosure of criminal activity"). 2. Pohl's claims are barred by absolute immunity. Pohl's claims are also barred because "[n]o lawsuit may be instituted against any Complainant or witness predicated upon the filing of a Grievance or participation in the attorney disciplinary and disability system." T.R.D.P. 17.09. "The immunity is absolute and unqualified and extends to all actions at law or in equity." Id. "[It] applies even if the underlying alleged conduct is illegal, improper, or malicious." Moreno v. Novoa, 676 S.W.3d 748, 751 (Tex. App.--El Paso 2023, no pet.). Pohl argued that this absolute immunity does not apply because Kassab's use of client information to contact Pohl's clients "pre-dated" any grievance proceeding. 14CR11576. But Pohl testified that Kassab used the purported information to initiate grievances against him. 6RR52-55, 60. Pohl asked the jury to compensate him for the attorney's fees he incurred defending against those grievances, 13CR10931-10932; 8RR55, 109-110. And the jury concluded that the attorney's fees incurred by Pohl in the grievance proceedings were the "proximate [48] cause" of the alleged misappropriation. 13CR10931-10932. In other words, the claimed damages are based on Kassab's "participation in the attorney disciplinary and disability system," and therefore are subject to absolute immunity. See Crampton v. Farris, 596 S.W.3d 267, 274-275 (Tex. App.--Houston [1st Dist.] 2019, no pet.) (applying immunity when actions are "intimately associated" with the grievance proceeding, regardless of actions taken "maliciously, in bad faith, or with ulterior motives."). 3. Pohl's claims are barred by attorney immunity. Under the doctrine of attorney immunity, "an attorney does not have a right of recovery, under any cause of action, against another attorney arising from conduct the second attorney engaged in as part of the discharge of his duties in representing a party." Bradt v. West, 892 S.W.2d 56, 72 (Tex. App.--Houston [1st Dist.] 1992, writ denied) (emphasis added). "[A]n attorney is immune from liability to nonclients for conduct within the scope of his representation of his clients." Youngkin v. Hines, 546 S.W.3d 675, 681 (Tex. 2018). The inquiry "focuses on the kind of conduct at issue rather than the alleged wrongfulness of said conduct." Id. Even 19 13CR10927 (answering "yes" to whether "the wrongful conduct of Pohl, if any, contributed to the injury, if any, found by the jury?"). Page 22 of 40 2025 TX APP. CT. BRIEFS LEXIS 119, 48 "criminal conduct is not categorically excepted from the protections of attorney civil immunity when the conduct alleged is connected with representing a client [49] in litigation." Bethel v. Quilling, Selander, Lownds, Winslett & Moser, P.C., 595 S.W.3d 651, 657 (Tex. 2020). Kassab's conduct that forms the basis of Pohl's claims falls squarely within the confines of attorney immunity, regardless of whether it is alleged to have violated TUTSA because that statute does not expressly repudiate the defense. See Taylor v. Tolbert, 644 S.W.3d 637, 642 (Tex. 2022). Pohl sued Kassab for allegedly using "confidential information ... to contact and solicit Pohl's clients/prospective clients" to "bring cases against Pohl for alleged barratry and other claims." 1CR106-107. Pohl admitted that investigating claims and acquiring clients to file lawsuits is conduct that involves the skill, training, and experience of a lawyer, 6RR62-63, thus falling within attorney immunity. See Youngkin, 546 S.W.3d at 682 ("filing lawsuits and pleadings" fall within attorney immunity). That Kassab acquired the information before litigation was filed is immaterial because "attorney immunity applies to claims based on conduct outside the litigation context[.]" Haynes & Boone, LLP v. NFTD, LLC, 631 S.W.3d 65, 78-79, 81 (Tex. 2021); Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 485 (Tex. 2015) (attorney was immune from conduct that occurred after litigation had ended). In other words, Pohl's characterization [50] of Kassab's activities as a business transaction that occurred before litigation does not negate attorney immunity because Kassab engaged in the conduct as part of his ultimate provision of legal services to his clients. See Haynes & Boone, 631 S.W.3d at 78-79, 81 (applying immunity to lawyer's conduct committed as part of business transaction). This Court already has opined that the conduct Pohl complains about all " arose out of a commercial transaction involving the type of legal services Kassab provides." Kassab, 612 S.W.3d at 578 (emphasis added). The jury found that Kassab did not "acquire or use Pohl's trade secret while in an attorney client relationship and attempting to provide legal services in that relationship involving the unique office professional skill, training and authority of an attorney[.]" 13CR10930 (emphasis added). But no evidence supports that answer. The evidence demonstrated that in November 2016, Kassab entered into a joint venture agreement to investigate and pursue barratry claims against Pohl. PX84. The uncontroverted evidence was that Kassab obtained his first client at least by February 2017. PX121A, at 121.0263. Kassab continued to acquire clients and then brought [51] four barratry lawsuits against Pohl on behalf of more than 400 of Pohl's former, potential, or rejected clients. PX121A; 5RR36-37, 49-50. If the attorney-client contracts and identities of Pohl's clients are Pohl's trade secrets, the evidence conclusively established that Kassab "used" that information while in an attorney-client relationship because filing suit against Pohl was the only way Kassab could commercially profit from the purported trade secrets. See Sw. Energy, 491 S.W.3d at 722 ("use" means "commercial use" that "profit[s] from the use of the secret."). Kassab's mere possession of or disclosure of the information to the client, is not a commercial use because it was not yet "exploited for its independent economic value." Tex. Disposal Sys., 2024 WL 3334656, at 5. Page 23 of 40 2025 TX APP. CT. BRIEFS LEXIS 119, 51 Because there was no commercial use until Kassab was in an attorney-client relationship, attorney immunity applied. 20 [52] Because Kassab conclusively established attorney immunity, and there is no evidence to support the jury's finding that Kassab did not use the information in an attorney-client relationship, the jury's answer should be disregarded and Pohl's claims dismissed. See Taylor, 644 S.W.3d at 648 (attorney not civilly liable for "criminal in nature" conduct committed while discharging duties to client); In re Canfora, No. 01-21- 00128-CV, 2021 WL 4095580, at 8 (Tex. App.--Houston [1st Dist.] Sep. 9, 2021, no pet.) (mem. op.) (attorney immunity applied to claim that Kassab tortiously interfered with attorney's contract); Highland Capital Mgmt., LP v. Looper Reed & McGraw, P.C., No. 05-15-00055-CV, 2016 WL 164528, at 4-5 (Tex. App.-- Dallas Jan. 14, 2016, pet. denied) (mem. op.) (immunity applied to claim attorney engaged in "malicious conduct with respect to its illegal acquisition, retention, use, and threatened disclosure of [plaintiff's] proprietary and confidential information" that "it knew to be stolen and proprietary in furtherance of its scheme to extort ... [plaintiff]."). 4. Pohl's claims are barred by the judicial-proceedings privilege. "The judicial-proceedings privilege is an absolute privilege that covers any statement made by ... counsel ..., and attaches to all aspects of the proceedings, including statements made in open court, pre-trial [53] hearings, depositions, affidavits and any of the pleadings or other papers in the case." Landry's, Inc. v. Animal Legal Def. Fund, 631 S.W.3d 40, 46 (Tex. 2021) (internal quotations omitted). It attaches even to "communications preliminary to a proposed judicial proceeding" if "the communication has some relation to a proceeding that is actually contemplated in good faith and under serious consideration by the witness or a possible party to the proceeding." Id. at 48-49 (emphasis added). " Even in the pre-suit context, ... the privilege protects communications that are themselves preparatory to the lawsuit." Id. (emphasis added). The privilege protects all communications that are " necessary to set the judicial machinery in motion." Id. at 50 (emphasis added). "Although most cases addressing the judicial communication privilege involve claims of libel or slander, Texas courts have consistently applied the privilege to claims arising out of communications made in the course of judicial proceedings, regardless of the label placed on the claim." Laub v. Pesikoff, 979 S.W.2d 686, 690 (Tex. App.--Houston [1st Dist.] 1998, pet. denied) (emphasis added). Thus, the privilege applies to any cause of action " when the essence of a claim is damages that flow from communications [54] made in the course of a judicial proceeding." Id. at 691 (emphasis added). Here, Pohl's alleged damages indisputably "flow from" communications that Kassab made in the barratry litigation and grievance proceedings. Pohl alleged that Kassab "solicited ... clients/prospective clients to act as plaintiffs ... to bring cases against Pohl for alleged barratry and other claims." 1CR107. Pohl testified to these allegations, stating Kassab used the purported trade-secret information to acquire clients and file barratry proceedings against Pohl, 20 At minimum, attorney immunity should be applied to bar Pohl's damages for fees incurred in the barratry litigation and grievances. As discussed below, those damages indisputably occurred as a result of Kassab bringing the claims and grievances on behalf of his clients, while in an attorney-client relationship. Page 24 of 40 2025 TX APP. CT. BRIEFS LEXIS 119, 54 6RR39-40, 55, 132, which allegedly damaged his reputation. 5RR232-233 (claiming because of allegations people "don't want to do business with me" and "think I'm a tar baby"), 236-237 ("I've got a bad reputation now"). Pohl persuaded the jury to find "attorney's fees, expenses, and costs that Pohl has incurred in connection with the ... lawsuits, appeals, and grievances that Kassab filed." 13CR10931-10932. Because Pohl's claims "flow from" communications that Kassab made in the barratry litigation and grievance proceedings, they are barred regardless of their label. See Laub, 979 S.W.2d at 690 (privilege applied to claims for "intentional interference, [55] civil conspiracy, intentional infliction of emotional distress, negligence, and constitutional violations"); Tex. Mut. Ins. Co. v. Ray Ferguson Interests, Inc., No. 01-02- 00807-CV, 2006 WL 648834, at 9 (Tex. App.-- Houston [1st Dist.] Mar. 16, 2006, pet. denied) (mem. op.) (privilege applied to Texas Insurance Code claim because plaintiff's theory of damages was that "its clients, creditors, and bonding companies abandoned it, in part, because of the [insurer's] allegations and assertions . . . made in the course of this judicial proceeding"). II. The judgment should be reformed to eliminate unrecoverable damages. A. Exemplary damages cannot be recovered because of the lack of unanimity in answering the predicate question. "Exemplary damages may be awarded only if the jury was unanimous in regard to finding liability for and the amount of exemplary damages." C.P.R.C. §41.003(d). "[A] party seeking exemplary damages bears the burden of securing a unanimous verdict." Oscar Renda Contracting, Inc. v. Bruce, 689 S.W.3d 305, 309 (Tex. 2024). Securing unanimity on both liability and amount of exemplary damages is a "standard for recovery," and the burden "may not be shifted to the defendant." Id. (quoting C.P.R.C. §41.003(b)). Because Pohl failed to secure a unanimous liability finding, exemplary [56] damages are not recoverable. Question 19 was the only question that asked about exemplary damages. 13CR10944. The predicate instruction said, "Answer the following question only if you unanimously answered 'Yes' to Question No. 17 or Question No. 18. Otherwise, do not answer the following question." 13CR10944. The jury did not answer Question 18. Some members of the jury answered Question 17 "yes," finding that the misappropriation of trade secrets was willful and malicious. 13CR10942. But the certificate at the end of the jury verdict makes it unmistakably clear that the answer to Question 17 was not unanimous. First, in the general part of the jury certificate the jury declined to check the box indicating that "Our verdict is unanimous," but instead checked the box indicating that only ten jurors agreed to every answer:[SEE IMAGE IN ORIGINAL] 13CR10949. The additional certificate required the jury to indicate whether certain liability and damages questions were answered unanimously:[SEE IMAGE IN ORIGINAL] Page 25 of 40 2025 TX APP. CT. BRIEFS LEXIS 119, 56 In response to that instruction, the presiding juror signed certificates indicating that Questions 2 and 19 were unanimous. But the presiding juror conspicuously [57] did not sign the certificate for Question 17:[SEE IMAGE IN ORIGINAL] 13CR10950. Thus, the jury's answer to Question 17 was unmistakably not unanimous. The jury's failure to answer Question 17 unanimously precludes any award of exemplary damages by both rule and statute. See Oscar Renda, 689 S.W.3d at 310 ("a judgment may not award such damages without unanimous jury findings as to liability for and the amount of exemplary damages."); T.R.C.P. 292 ("A verdict may be rendered awarding exemplary damages only if the jury was unanimous in finding liability for and the amount of exemplary damages."); C.P.R.C. §41.003(d) ("Exemplary damages may be awarded only if the jury was unanimous in regard to finding liability for and the amount of exemplary damages."). Pohl relied on the court of appeals opinion in Bruce v. Oscar Renda Contracting, 657 S.W.3d 453, 464 (Tex. App.--El Paso 2022), arguing that it was Kassab's burden to object to any conflict between the certificate of unanimity and the presumption that jurors follow predicate instructions. 14RR11059-11064. But that decision now has been reversed by the Texas Supreme Court, which made clear that "[b]ecause the plaintiff bears the burden to secure unanimity, it is the [58] plaintiff who must seek clarification to the extent that it asserts that the divided verdict inaccurately reflects the jury's vote as to a particular question." Oscar Renda, 689 S.W.3d at 310. Therefore, it was Pohl's burden to object to any real or implied conflict in the jury's responses, and to request further deliberations before the jury was discharged. See id. Pohl's failure to do so precludes any award of exemplary damages considering the jury's clear indication that it was not unanimous on the liability question. B. Attorney's fees from other litigation and grievances cannot be recovered as actual damages. 1. Attorney's fees are not "actual losses" under TUTSA. TUTSA provides recovery for "actual loss[es] caused by misappropriation," C.P.R.C. §134A.004, but the act does not define that term. Although no Texas case has provided a definition, the act requires this provision to "be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this chapter among states enacting it." Id. §134A.008. Thus, the Court must be guided by decisions from other states that have adopted the Uniform Trade Secrets Act. See Morgan [59] v. Clements Fluids S. Tex., Ltd., 589 S.W.3d 177, 191 n.4 (Tex. App.--Tyler 2018, no pet.) (looking to "very similar" Florida statute). Courts in other jurisdictions "have made clear that 'actual loss' means 'loss of profits, lost customers or lost market share.'" K3 Enter., Inc. v. Sasowski, No. 20-24441- CIV-CAN, 2022 WL 17987272, at 3 (S.D. Fla. 2022) (reputational damage not "actual loss" under Florida's trade-secret statute) (citing Fin. Info. Techs., LLC v. iControl Sys., USA, LLC, 21 F.4th 1267, 1276 (11th Cir. 2021) ("actual loss" in terms of lost profits); Selectica, Inc. v. Novatus, Inc., No. 6:13-cv-1708-Orl-40TBS, 2022 WL 17987272, at 3 (M.D. Fla. 2015) ("'Actual loss' has been defined as 'loss of profits, lost customers or lost market share.'"); Saforo & Assocs., Inc. v. Page 26 of 40 2025 TX APP. CT. BRIEFS LEXIS 119, 59 Porocel Corp., 991 S.W.2d 117, 124 (Ark. 1999) ("actual loss" means "the plaintiff's lost profits or the defendant's gain, whichever affords the greater recovery."). In construing the Idaho Uniform Trade Secrets Act, the Idaho Supreme Court held that "actual loss" means "lost profits, lost customers, lost market share, and similar losses," but specifically held that "it would be an anomaly for us to allow attorney fees to be recovered in a case like this as part of damages." GME, Inc. v. Carter, 917 P.2d 754, 757 (Idaho 1996); see Twin Falls Staffing, LLC v. Visser (In re Visser), No. 1:13-cv- 00408-BLW, 2014 WL 1599931, at 5 (D. Idaho 2014) (losses from misappropriation [60] of trade secrets "logically include lost profits, but not attorneys' fees."). That attorney's fees from other litigation are not actual losses recoverable under TUTSA is consistent with Texas trade-secret law before the statute was enacted. The Texas Supreme Court defined recoverable losses for a trade-secret claim as "the value of the plaintiff's lost profits, the defendant's actual profits from the use of the secret, the value a reasonably prudent investor would have paid for the trade secret, the development costs the defendant avoided by the misappropriation, and a reasonable royalty." Sw. Energy, 491 S.W.3d at 710-11 (emphasis added). No Texas appellate court has ever allowed the recovery of attorneys' fees as actual damages in a trade-secret claim. In fact, at least one has concluded the opposite while dismissing a TUTSA claim. See Lacore Enters., LLC v. Angles, No. 05-21- 00798-CV, 2023 WL 2607562, at 9 (Tex. App.--Dallas Mar. 23, 2023, no pet. h.) (mem. op.) (rejecting contention that "disclosure of [party's] confidential information" caused "the attorney's fees that have been incurred [which] is evidence of damages" because "attorney's fees incurred in a lawsuit are not actual damages."). This conclusion is further reinforced by Texas law regarding [61] attorney's fees incurred in previous litigation. "[A]ttorney's fees expended in prior litigation generally are not recoverable as damages; attorney's fees are recoverable only when an agreement between the parties so provides." Stumhoffer v. Perales, 459 S.W.3d 158, 168 (Tex. App.-- Houston [1st Dist.] 2015, pet. denied). And "[a] party relying on assertions of non-recoverable damages alone, such as attorney's fees and expenses sustained in defending a lawsuit ... has presented a legal barrier to any recovery." Woodhaven Partners Ltd. v. Shamoun & Norman, L.L.P., 422 S.W.3d 821, 837 (Tex. App.--Dallas 2014, no pet.). 2. The "tort of another" doctrine does not apply. Pohl argued that he is entitled to recover attorney's fees based on the "tort of another" doctrine. 14CR11578-11579. That doctrine provides that "[o]ne who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person is entitled to recover reasonable compensation for loss of time, attorney fees and other expenditures thereby suffered or incurred in the earlier action." Naschke v. Gulf Coast Conference, 187 S.W.3d 653, 655 (Tex. App.--Houston [14th Dist.] 2006, pet. denied) (quoting RESTATEMENT (SECOND) OF TORTS §914 (1979)). But that exception has never been embraced by the Texas Supreme Court 21 and has been flatly rejected by the Fourteenth Court 21 See Akin, Gump, Strauss, Hauer [62] & Feld, L.L.P. v. Nat'l Dev. & Research Corp., 299 S.W.3d 106, 119 (Tex. 2009) (declining to "address whether the exception set out in section 914(2) ... should be adopted"). Page 27 of 40 2025 TX APP. CT. BRIEFS LEXIS 119, 62 of Appeals. 22 See id. ("[W]e are not at liberty to adopt a theory of recovery that has not been enacted by the Legislature or adopted by the Texas Supreme Court."). This Court has not specifically addressed whether the "tort of another" exception is viable but has stated it is an equitable doctrine that can only apply when the plaintiff is "wholly innocent" of any wrongdoing. See Per-Se Techs., Inc. v. Sybase, Inc., No. 01-03-01293-CV, 2005 WL 1539291, at 7-8 (Tex. App.--Houston [1st Dist.] June 30, 2005, no pet.) (mem. op.); Dixon Fin. Servs. v. Chang, 325 S.W.3d 668, 678 (Tex. App.--Houston [1st Dist.] 2010, pet. denied) (referring to "exception" as "[e]quitable principle[]"). The doctrine does not apply here because Pohl expressly waived any equitable claims 23 and is not wholly innocent. The jury found that the "wrongful conduct of Pohl ... contribute[d] to the injury." 24 13CR10927. Although Pohl argues that the jury failed to assign any percentage of responsibility to Pohl in Question 4, 14CR11068, the point is not about proportionate responsibility. Rather, the point is simply that one without clean hands cannot obtain an equitable remedy, and one found to have engaged in "wrongful conduct" does not have clean hands. See Frazier v. Havens, 102 S.W.3d 406, 414 (Tex. App.--Houston [14th Dist.] 2003, no pet.). Because the jury concluded that Pohl is not "wholly innocent," the equitable doctrine does not apply. See Per-Se Techs., 2005 WL 1539291, at 7-8; Pacesetter Pools, Inc. v. Pierce Homes, Inc., 86 S.W.3d 827, 834 (Tex. App.- -Austin 2002, no pet.). Moreover, Pohl is not seeking to recover fees incurred by defending against actions brought by third persons. Rather, Pohl testified that "Kassab brought" the underlying lawsuits against him, 25 and asked the jury to award him fees incurred in the "lawsuits, appeals, and grievances that Kassab filed against Pohl." 13CR10931 (emphasis added). Therefore, the doctrine does not apply. See Turner v. Turner, 385 S.W.2d 230, 234 (Tex. 1964) (noting that if "tort of another" doctrine exists, "the litigation must have involved a third party and not against the defendant [] in [64] the present action."); Dixon, 325 S.W.3d at 678 (declining to apply doctrine when "[t]he claimed attorney's fees were not incurred in litigation with a third person, rather, the fees were incurred following litigation with [plaintiff's] present adversaries in this litigation."). 3. Damages resulting from the litigation and grievances are not recoverable because of privilege and immunity. For the reasons stated in sections I(E)(2)-(4), supra, even if Pohl's claims are not barred by immunity or privilege, his damages for fees and expenses incurred defending against the barratry cases and grievances are. It cannot be disputed that those damages resulted solely from Kassab discharging his duties to his clients, thus giving rise to attorney immunity or the 22 Other intermediate courts have refused to adopt the doctrine. See TOKA Gen. Contractors v. Wm. Rigg Co., No. 04-12- 00474-CV, 2014 WL 1390448, at 7 (Tex. App.--San Antonio Apr. 9, 2014, pet. denied) (mem. op.) (collecting cases). 23 10CR8077 ("Pohl does not seek any equitable relief."). 24 Kassab originally asked the trial court to submit the question that Pohl committed unlawful [63] conduct, including barratry, but the court improperly rejected that request. 13CR10899-10900. 25 5RR231; 6RR109. Page 28 of 40 2025 TX APP. CT. BRIEFS LEXIS 119, 63 judicial proceedings privilege, or are predicated on Kassab's participation in the disciplinary system, thus giving rise to absolute immunity. C. Other actual damages must be eliminated or reduced. The jury found damages of $ 250,000 for the fair market value of the alleged trade secrets and $ 200,000 for the value of the development costs that Kassab avoided by appropriating them. The judgment awarded both elements of [65] damages. There is legally insufficient sufficient evidence of both, but at the very least the award of both constituted an improper double recovery. 1. There was no evidence of market value. Pohl presented no testimony about the "market value" of the information. See City of Harlingen v. Estate of Sharboneau, 48 S.W.3d 177, 182 (Tex. 2001) (defining "market value" to mean "the price the property will bring when offered for sale by one who desires to sell, but is not obliged to sell, and is bought by one who desires to buy, but is under no necessity of buying."). In fact, Pohl's counsel acknowledged that Pohl would never be a "willing seller" of the information, 6RR18, because Pohl would never sell the "attorney-client privilege files to anybody" for any amount of money. 6RR37. Pohl attempted to testify about market value over Kassab's objection by claiming that the "floor value" of the information was $ 250,000, the figure that Kassab paid Favre as a retainer to act as an expert in the barratry litigation. 6RR42. Even if the jury could reasonably find that $ 250,000 was a "purchase price" for Pohl's alleged trade secrets, that would be considered "actual value" not "market value," which was the theory submitted [66] to the jury. Pike v. Tex. EMC Mgmt., LLC, 610 S.W.3d 763, 784 n.27 (Tex. 2020) ("evidence of purchase price alone cannot establish market value" and approving cases rendering take-nothing judgments "where purchase price was only evidence of damages presented"). Further, "one sale [is] not sufficient to fix a fair market value." InterFirst Bank Dall., N.A. v. Risser, 739 S.W.2d 882, 891 (Tex. App.-- Texarkana 1987, no writ); Mo., K. & T. R. Co. v. Moss, 135 S.W. 626, 627 (Tex. Civ. App. 1911, no writ). A "value to me" standard cannot be substituted for the accepted rule for establishing market value, nor can a party "establish a value based entirely upon speculation." Nat. Gas Pipeline Co. of Am. v. Justiss, 397 S.W.3d 150, 158 (Tex. 2012). There is no evidence to support the $ 250,000 award of market value, and this portion of the judgment should be vacated. 2. There was no evidence of development costs. Although Pohl testified about his alleged personal investment in the "project," 26 that is no evidence of the amount Kassab saved in development costs. See Pike, 610 S.W.3d at 781. Pohl testified that he spent up to $ 6 million on the entire "project," including fees and expenses. 5RR221-222. The project included "vetting" clients and working with them to obtain financial information necessary to process BP [67] claims. 5RR180-181; 6RR64. It included paying the marketers for things like public relations, client liaison, and evidence-gathering services. DX106; 26 5RR221-222; 6RR41, 43-44, 46, 135. Page 29 of 40 2025 TX APP. CT. BRIEFS LEXIS 119, 67 see also DX72, 73, 74, 75. And Pohl testified that he recouped $ 4 million of the $ 6 million he spent from his share of attorney's fees. 5RR223; 6RR135. Because the $ 6 million paid by Pohl included fees and expenses beyond what it would cost to simply acquire the client base (the purported trade secret), Pohl did not provide any evidence to support a jury finding of development costs saved by Kassab. See Pike, 610 S.W.3d at 781-82. "Instead, the jury was left to speculate or guess about the amount [Kassab] saved in development costs based on the [alleged] misappropriation of [Pohl's purported] trade secrets, which does not constitute legally-sufficient evidence." Pike v. Tex. EMC Mgmt., LLC, 579 S.W.3d 390, 418 (Tex. App.-- Waco 2017), rev'd in part, aff'd in part, jdmt. entered, 610 S.W.3d 763 (Tex. 2020); Sw. Energy, 491 S.W.3d at 712 (damages "cannot be based on sheer speculation."). 3. At the very least, Pohl cannot recover both. Under TUTSA, a claimant is entitled to recover "actual loss caused by the misappropriation and unjust enrichment caused by misappropriation [68] that is not taken into account in computing actual loss." C.P.R.C. §134A.004. "Value to the defendant may be measured by the defendant's actual profits resulting from the use or disclosure of the trade secret (unjust enrichment), the value a reasonably prudent investor would have paid for the trade secret, or development costs that were saved." Sw. Energy, 491 S.W.3d at 711 (emphasis added). Awarding both market value and development costs constitutes an improper double recovery. See Virtuolotry, LLC v. Westwood Motorcars, LLC, No. 05-19-01055-CV, 2024 WL 4211328, at 6-7 (Tex. App.--Dallas Sep. 17, 2024, no pet.) (mem. op. on remand) (recovery of "lost profits and the market value" of property amounts to improper "double recovery."). If Pohl recovers the fair market value of his alleged trade secrets, he will be fully compensated for any actual loss. If he were willing to sell the alleged secrets to a third party, that buyer would necessarily possess the secrets and would avoid any development costs as part of the acquisition. As the trial court recognized, the development costs are "taken into account" in the market value and duplicate the fair market value. 12RR32-33 ("You just get the one or the other."). To award both was an impermissible [69] double recovery. D. Kassab cannot be jointly and severally liable because conspiracy claims are preempted. The judgment also improperly includes joint-and-several liability against Kassab based on a conspiracy finding by the jury in Question 15. 13CR1094; 14CR11291. Pohl's conspiracy claim is either preempted by TUTSA or subject to the proportionate-responsibility scheme of Chapter 33 of the C.P.R.C. Therefore, the judgment improperly includes joint-and-several liability against Kassab and holds him responsible for 100% of the damages awarded instead of his 70% proportionate responsibility found by the jury. 13CR10928. TUTSA "displaces conflicting tort, restitutionary, and other law of this state providing civil remedies for misappropriation of a trade secret." C.P.R.C. §134A.007. In Reynolds, the plaintiff sued for misappropriation of trade secrets and aiding and abetting breach of fiduciary duty. 2023 WL 8262764, at 3. This Court concluded that the aiding-and-abetting claim was "primarily based on the individual appellants' misappropriation of trade secrets" and "provide[ed] remedies Page 30 of 40 2025 TX APP. CT. BRIEFS LEXIS 119, 69 for the underlying misconduct of misappropriation of trade secrets." Id. at 17. "Under the plain language of TUTSA, these claims conflict with civil remedies for misappropriation of a trade secret." Id. Therefore, "TUTSA preempts these claims to the extent they are based on appellants' alleged misappropriation of trade secrets." Id. Pohl's conspiracy claim, like [70] the aiding-and-abetting claim in Reynolds, is based entirely on Kassab's alleged misappropriation of trade secrets. The conspiracy question asked, "[r]egarding the conduct you found in answer to Question No. 2 [the misappropriation of trade secret question], was Kassab part of a conspiracy that damaged Pohl with any of those named below?" 13CR10940. Because Pohl's conspiracy claim is "primarily based on" alleged misappropriation of trade secrets, it is preempted. See Reynolds, 2023 WL 8262764, at 17. With respect to Chapter 33, it applies to "any cause of action based on tort in which a defendant, settling person, or [RTP] is found responsible for a percentage of the harm for which relief is sought." C.P.R.C. §33.002(a). "Civil conspiracy is an intentional tort." Firestone Steel Prods. Co. v. Barajas, 927 S.W.2d 608, 617 (Tex. 1996). Chapter 33 lists those claims to which it does not apply and does not list conspiracy. C.P.R.C. §33.002(c). Accordingly, courts have concluded that Chapter 33's proportionate-responsibility scheme applies to conspiracy claims, rather than joint-and-several liability. See Seven Seas Petroleum, Inc. v. Cibc World Mkts. Corp., No. H- 08-3048, 2013 WL 3803966, at 22 (S.D. Tex. 2013) ("when the Legislature has chosen to impose joint and several liability rather [71] than proportionate liability, it has clearly said so."); Pemex Exploracion Y Produccion v. BASF Corp., No. H-10-1997, 2011 WL 9523407, at 11-13 (S.D. Tex. 2011) (conspiracy claims are not expressly exempted from proportionate responsibility). Because the conspiracy claim is either preempted by TUTSA or subject to the proportionate- responsibility scheme under Chapter 33, the judgment should not include joint-and-several liability against Kassab or make Kassab liable for all damages when the jury found him only partially responsible. E. Because Pohl's actual recoverable damages are less than the amount of the settlement credit, a take-nothing judgment should be entered. Because the exemplary-damage award is not unanimous, and attorney's fees are not recoverable, Pohl's only recoverable damages are $ 200,000, which represents the jury's answers to Question No. 7(3) and the amount that Pohl stated he would elect. 12RR34. However, Kassab was only found to be 70% responsible, so the damages should be reduced to $ 140,000. See C.P.R.C. §33.012(a). The Court must then apply the $ 765,000 settlement credit, 27 which results in Pohl receiving no net recovery from Kassab. See id. §33.012(b). If the Court concludes [72] that an award of exemplary damages is appropriate, the settlement credit still exceeds the recoverable damages. Exemplary-damage awards are also subject to a settlement credit when, as here, the plaintiff does not "tender a valid settlement agreement allocating between actual and punitive damages to the trial court in order to avoid a settlement credit." Sky View at Las Palmas, LLC v. Mendez, 555 S.W.3d 101, 111 (Tex. 2018). 27 13CR10956. Page 31 of 40 2025 TX APP. CT. BRIEFS LEXIS 119, 72 Because exemplary damages under TUTSA are capped at two times recoverable actual damages, if actual damages are reduced to $ 200,000, exemplary damages would be limited to $ 400,000. See C.P.R.C. §134A.004(b). If that amount is added to the actual damages reduced by the 70% proportionate-responsibility finding, Pohl's recoverable damages against Kassab amount to $ 540,000, which is less than the $ 765,000 settlement credit. See Universal Servs. Co. v. Ung, 882 S.W.2d 460, 467 (Tex. App.--Houston [14th Dist.] 1994) ("[I]n cases where actual damages awards may be trebled by statute, the supreme court allows credits of settlement proceeds against the trebled sum."), rev'd on other grounds, 904 S.W.2d 638 (Tex. 1995). Because Pohl's recoverable damages are eclipsed by the settlement credit, he cannot recover attorney's fees. As this Court has [73] recognized: It is one thing to allow an attorney's fees award on a successful claim notwithstanding an opposing party's success on an offsetting claim. However, it is another to allow attorney's fees on a claim that, although successful, was paid in full before trial. Buccaneer Homes of Ala. Inc. v. Pelis, 43 S.W.3d 586, 591 (Tex. App.--Houston [1st Dist.] 2001, no pet.). Because Pohl's only legally recoverable damages against Kassab are more than offset by the settlement credit, Pohl is not entitled to any attorney's fees. See Alanis v. US Bank Nat'l Ass'n, 489 S.W.3d 485, 514 (Tex. App.--Houston [1st Dist.] 2015, pet. denied). Because Pohl has no recoverable damages against Kassab and no right to recover attorney's fees, the Court should reverse and render a take-nothing judgment. III. Alternatively, the judgment should be reversed and remanded. In the alternative, judgment against Kassab should be reversed and remanded because of error that probably caused the rendition of an improper judgment, or because there is factually insufficient evidence to support several of the jury's findings. A. The failure to allow designation of RTPs requires a new trial. A trial court is required to grant leave to designate RTPs if a motion is timely filed that pleads sufficient facts concerning the alleged responsibility [74] of the persons to be designated. In re YRC Inc., 646 S.W.3d 805, 809 (Tex. 2022). Kassab timely moved to designate Walker, Ladner, Seymour, Precision, Favre, Billy Shepherd, Donalda Pohl, Edgar Jaimes, Ken Talley, and Magdalena Santana as RTPs, and pleaded sufficient facts demonstrating their responsibility. 2CR909-920; 5CR7869-7874, 7903-7977. The trial court denied leave to submit all but Favre and Precision. 28 13CR10611. This error probably caused rendition of an improper judgment, warranting new trial. Kassab alleged that Walker, Ladner, and Seymour were responsible for the alleged harm to the extent they misappropriated Pohl's trade secrets in the first instance and then sold them to 28 The trial court did include Walker, Ladner, and Seymour in the definition of Precision, 13CR10923, and allowed Precision's responsibility to be considered by the jury. 13CR10925-10926. However, Kassab was entitled to submission of "each [RTP]." C.P.R.C. §33.003(a)(4). Page 32 of 40 2025 TX APP. CT. BRIEFS LEXIS 119, 74 Favre, who Pohl alleges then sold them to Kassab. 5RR7910. Kassab supported these allegations with Pohl's testimony that the information Pohl claims are his trade secrets was sold by Walker, Ladner, and Seymour to Favre "without [his] consent." 5CR7926-7933, PP18, [75] 28-29. Thus, if Pohl's trade secrets were misappropriated, Walker, Ladner, and Seymour contributed to it. 5CR7911. Kassab also demonstrated that Shepherd knew that Walker, Ladner, and Seymour transferred Precision's assets to Favre, including the information that Pohl claims are his trade secrets. 5CR7871-7872, 7912. Shepherd also knew that Favre gave documents to third parties, including Kassab, before settling the Mississippi litigation, but failed to protect Pohl by ensuring that all proprietary information was returned to Pohl or destroyed as part of the any settlement agreement. 5CR7871-7872, 7912. Thus, if Pohl was harmed by the loss of his purported trade secrets, Shepherd contributed to that loss. 5CR7871-7872, 7912. Finally, Kassab alleged that if Donalda, Jaimes, Talley, or Santana had a duty to safeguard any property allegedly owned by Pohl, they failed to safeguard the property by routinely placing Pohl's alleged trade secrets in the public domain. 5CR7872, 7913. Because Kassab timely moved to designate these individuals as RTPs, the trial court erred by denying the designation. See YRC, 646 S.W.3d at 810; C.P.R.C. §33.004(g). This error was also harmful. "Prohibiting [76] the jury from considering [these individuals'] partial responsibility for [Pohl's claimed losses] was harmful error because litigants have a 'significant and substantive right to allow the fact finder to determine the proportionate responsibility of all responsible parties.'" Gregory v. Chohan, 670 S.W.3d 546, 568 (Tex. 2023) (quoting In re Coppola, 535 S.W.3d 506, 509 (Tex. 2017)). "A new trial is therefore required." Id. ("Allowing a case to proceed to trial despite erroneous denial of a responsible-third-party designation would skew the proceedings and potentially affect the outcome of the litigation.") (emphasis added). B. Pohl's witness tampering warrants a new trial. After trial, newly discovered evidence demonstrated that Pohl engaged in unlawful bribery and witness tampering that materially affected the jury verdict. 14CR11100-11140, 11374-11379. The trial court's refusal to grant a new trial under these circumstances 29 was error that caused the rendition of an improper judgment. In a recorded telephone call with Kassab after the jury verdict, Walker, a key witness in this case, confessed that he and Ladner were promised 30 percent of any judgment against Kassab in exchange "for our depositions and our testimony and [77] our positions on certain things that, you know, helped and - in getting that judgment." 30 14CR11432. Walker further stated that Pohl made that offer before their depositions 31 and that they were "coached on how to be deposed." 14CR11433. Walker candidly admitted that he "felt like [he] should call because ... 29 14CR11287. 30 A copy of the recording was available to the trial court and may be accessed via the following link: https://www.dropbox.com/scl/fi/8wayofizgx7q2vpsccm3p/December-8-2023-Call-with-Scott- Walker.m4a?rlkey=ngn37vr14zzam5avy9c5ta376&st=1trmuym9&dl=0 31 14CR11432. Page 33 of 40 2025 TX APP. CT. BRIEFS LEXIS 119, 77 the whole premise of the depositions was based on the 30 percent that we were promised." 14CR11438. Walker's candid after-trial revelation demonstrates that Pohl obtained the judgment against Kassab by committing witness tampering and suborning perjury. 32 A person commits witness tampering if they, with the intent to influence a witness, confer or agree to confer any benefit on a witness or prospective witness in an official proceeding, to testify falsely or withhold any testimony or information. T.P.C. §36.05(a). Walker's statements demonstrate that Pohl did that by offering them 30 percent of any judgment against Kassab in exchange for their favorable and untruthful testimony. 14CR11432. Aggravated perjury occurs if the person, with intent to deceive, makes a false statement under oath in an official proceeding. T.P.C. §§37.02, 37.03. Walker stated that he and Lardner testified under oath in their depositions, about "facts that weren't necessarily told the correct way or told on how it really happened." 14CR11433. Moreover, Walker made it clear that these false statements were made with the intent to deceive because "the whole premise of the depositions was based on the 30 percent that we were promised." 14CR11438. The false testimony drastically changed the course of the trial and resulted in an improper judgment. Although Walker and Ladner testified one [79] way in the Mississippi litigation they brought against Pohl, when they were deposed in this case, they reversed course on seminal issues of barratry and ownership of Pohl's purported trade secrets. For instance, in the Mississippi litigation, Walker testified that Pohl paid Precision $ 5 million in "barratry money" to unlawfully solicit clients. 14CR11446- 11448, 11451-11452. In that deposition, Walker testified it was "clear to [him] it was barratry." 14CR11450. But in this case, after being coached and bribed by Pohl, Walker recanted and took the position that he "didn't know what barratry meant until [his lawyer in the Mississippi litigation] taught [him] well on how to say the word" and "advised" him to lie. 14CR11456. But then in the unsolicited recorded phone call, Walker confessed that "it was barratry." 14CR11435. Walker admitted he was "coached on how to be deposed" by Pohl in this case and acknowledged that "some of the things that we were doing was, in fact, barratry, you know, and I still feel like it was and I think - I do believe it was." 14CR11435. Walker's testimony about ownership of information that Pohl claimed as his trade secret was also impacted by Pohl's [80] witness tampering. Walker initially signed agreements that confirmed the information was owned by Precision and not Pohl. DX25, 26, 27. After being coached and bribed by Pohl, Walker testified in this case "[w]hat I believed was that they were in our possession. I did not believe that we owned them." 14CR11454-11455. But in the recorded phone call, Walker confessed that his and Ladner's testimony was based on "the 30 percent that [they] were promised." 14CR11438. 32 Walker's out-of-court statements are not hearsay because they would expose him to criminal liability. See T.R.E. 803(24)(A) (excluding from hearsay statements that have tendency "to expose the declarant to civil or criminal liability."). Additionally, the statements are excluded from hearsay because, as Pohl's lawyer testified, Walker was Pohl's representative, 6RR223, [78] or because they are made by a coconspirator. T.R.E. 801(e)(2)(D), (E). Page 34 of 40 2025 TX APP. CT. BRIEFS LEXIS 119, 78 Because Walker's and Ladner's false deposition testimony was inconsistent with their testimony from the Mississippi litigation, Kassab decided not to call them as witnesses at trial. 13CR10841; 14CR11444. If Pohl had not engaged in unlawful witness tampering and bribery, Walker and Ladner presumably would have testified, consistent with their testimony in the Mississippi litigation: Pohl hired them to commit barratry; Precision owned the file documents that were sold to Scott Farve; and the materials were Precision's work product, not Pohl's trade secrets. If they had testified truthfully in their depositions, Kassab would have called them at trial, 33 and their testimony would have materially impacted the jury's [81] verdict. Specifically, that testimony would have impacted the jury's answers to Question Nos. 1, 2, and 4 regarding ownership of a trade secret, misappropriation of the alleged trade secret, and Pohl's percentage of responsibility. 13CR10924-10928. A new trial should be granted here. See In the Interest of E.S., No. 02-20-00407- CV, 2021 WL 2149627, at 9 (Tex. App.--Fort Worth May 27, 2021, pet. denied) (mem. op.) ("In cases where a witness willfully testifies falsely regarding a material fact, a new trial may be granted."); In re Marriage of Hutcherson, No. 12-18-00345-CV, 2019 WL 4727843, at 4 (Tex. App.--Tyler Sep. 27, 2019, no pet.) (mem. op.) (vacating judgment when "the award is based on false testimony, and the [fact finder] was deceived as to a material issue."); Dixie Gas & Fuel Co. v. Jacobs, 47 S.W.2d 457, 462 (Tex. Civ. App.-- Beaumont 1932, writ dism'd w.o.j.) (where affidavits presented with motion for new trial showed judgment was based on perjury, trial court erred in denying new trial); Rosebud Sioux Tribe v. A & P Steel, Inc., 733 F.2d 509, 521-522 (8th Cir. 1984) (district court abused discretion by failing to grant new trial based on newly discovered evidence that party paid witness to testify falsely). C. The trial court's denial of discovery despite Pohl's offensiveuse of privilege requires a new trial. Because Pohl was seeking attorney's fees from the barratry proceedings as actual damages, Kassab moved to compel [82] Pohl to provide complete, unredacted billing records and other information relevant to Kassab's defenses based on the offensive-use doctrine. 8CR6079-6962; 9CR6964-7621. The trial court denied that motion, 5CR7978, and overruled Kassab's objection at trial. 8RR47-49. That error probably caused the rendition of an improper judgment, warranting new trial. Even assuming that Pohl established privilege, 34 Kassab's motion demonstrated that Pohl could not sue Kassab for affirmative relief claiming Kassab stole his purported trade secrets and caused clients to bring barratry claims against Pohl while, at the same time, claiming privilege to deny access to discovery that would be outcome determinative to those claims. 8CR6085-6094 (discussing Ginsberg v. Fifth Court of Appeals, 686 S.W.2d 105, 108 (Tex. 1985)). Outcome- determinative discovery would include information that demonstrates Pohl's claims are barred by limitations, illegality, or the unlawful-acts doctrine; or information demonstrating that Pohl [83] 33 14CR11444. 34 Pohl submitted a conclusory declaration that globally stated every communication between him and his lawyers was privileged. 9CR7624-7628; see Weisel Enters., Inc. v. Curry, 718 S.W.2d 56, 58 (Tex. 1986) (global claim of privilege insufficient). Page 35 of 40 2025 TX APP. CT. BRIEFS LEXIS 119, 83 is not the owner of the purported trade-secret information. See Ginsberg, 686 S.W.2d at 106 (plaintiff could not assert privilege to protect against disclosure of information that was "materially relevant to, and possibly validated, the statute of limitations defenses"). But that is exactly what Pohl did, claiming privilege when Kassab sought this information. 8CR6085-6094. The Texas Supreme Court has recognized that a "party may waive its workproduct privilege through offensive use--perhaps by relying on its billing records ... to recover its own attorney fees." In re Nat'l Lloyds Ins. Co., 532 S.W.3d 794, 807 (Tex. 2017) (emphasis added). This rule was applied in In re Beirne, Maynard & Parsons, L.L.P., 260 S.W.3d 229 (Tex. App.--Texarkana 2008, no pet.), which ordered an attorney seeking fees as damages to produce complete billing records and the documentation underlying those records: [The attorney] filed suit to recover fees for which it had invoiced the real parties. It now attempts to prevent the real parties from examining documentation underlying those invoices--to determine whether they are accurate--and which is the critical defensive issue in the lawsuit. This constitutes an offensive use of what [the attorney] categorizes as workproduct privilege. [84] Simply put, you cannot deny a party the right to review documents supporting your claim for reimbursement. Id. at 231. But that is exactly what Pohl did here by seeking reimbursement from Kassab of the fees and expenses incurred in the barratry litigation but, at the same time, denying Kassab the right to determine whether the invoices were accurate, and the fees reasonable and necessary. Accordingly, the trial court erred by refusing to order Pohl produce complete unredacted versions of the invoices Pohl claimed support his damages, along with all underlying documentation, including communications and draft documents. The trial court also should have found that Pohl waived any privilege between him and Shepard regarding: (1) when Pohl discovered any alleged misappropriation; (2) Pohl's efforts to keep the information secret; and (3) Pohl's unlawful barratry. In his motion, Kassab explained how each of the offensive-use elements was met, and how the information was outcome determinative to his defenses. 8CR6089-6093 (discussing In re Sw. Airlines Co., 155 S.W.3d 622, 624 (Tex. App.--San Antonio 2004, no pet.) (information is outcome determinative when defendant's "ability to succeed on its limitations defense hinges on what was discovered" [85] by plaintiff)). Because Pohl did not produce unredacted billing records, the trial court should have sustained Kassab's objection to Pohl's billing-record trial exhibits, and sustained Kassab's objection to Pohl's expert testifying that those fees were reasonable and necessary. See Remington Arms Co. v. Caldwell, 850 S.W.2d 167, 170 (Tex. 1993) ("court has the power during trial to sanction nondisclosure of information" by excluding it). These errors were harmful because they allowed Pohl to use the redacted billing records, which the jury undoubtedly relied on when awarding Pohl attorney's fees, and allowed Pohl's expert to testify based on those records. 8RR47-51, 57-58. Moreover, significant substantive and procedural rights of Kassab were implicated by the trial court's erroneous exclusion of information relevant to Pohl's ability to recover, such as information that would demonstrate that Pohl's claims are barred by limitations, illegality, and the unlawful-acts doctrine, or demonstrate that Pohl is not the owner of the purported trade-secret information. The unredacted billing Page 36 of 40 2025 TX APP. CT. BRIEFS LEXIS 119, 85 records also may demonstrate that the fees Pohl sought were not reasonable or necessary. The missing evidence deprived Kassab [86] of his ability to conclusively show that the jury would have answered liability or damages questions differently if the evidence had been obtained, and prevented Kassab from including the evidence in the record, thus constituting harmful error. D. The trial court erred by refusing to submit Kassab's proposed jury questions on his affirmative defenses. The Texas Supreme Court has characterized Rule 278 as a "substantive, non-discretionary directive to trial courts requiring them to submit requested questions to the jury if the pleadings and any evidence support them." Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex. 1992). A trial court may refuse to submit an issue only if no evidence exists to warrant its submission. Id. Kassab requested submission of two proposed questions relating to pleaded affirmative defenses, which the evidence supported. First, Kassab requested Proposed Question 6, which asked, "Did Pohl commit unlawful or unethical conduct including barratry or the unauthorized practice of law to acquire the information he is claiming as trade secrets?" 10CR10899-10900. That question was directly relevant to Kassab's unlawful-acts defense, which provides that "no action will lie to recover a claim for [87] damages, if to establish it the plaintiff requires aid from an illegal transaction, or is under the necessity of showing or in any manner depending upon an illegal act to which he is a party." Gulf, C. & S. F. RY. Co. v. Johnson, 9 S.W. 602, 602-03 (1888). "Courts have interpreted this defense to mean that if the illegal act is inextricably intertwined with the claim and the alleged damages would not have occurred but for the illegal act, the plaintiff is not entitled to recover as a matter of law." Sharpe v. Turley, 191 S.W.3d 362, 366 (Tex. App.-- Dallas 2006, pet. denied). Courts have applied the doctrine without a criminal conviction so long as "the unlawful act barring the plaintiff's claim was in fact illegal conduct." McNally v. McNally, No. 02- 18-00142-CV, 2020 WL 5241189, at 10 (Tex. App.--Fort Worth Sep. 3, 2020, pet. denied) (mem. op.). Substantial evidence supported submission. Pohl's own testimony demonstrated that he committed the unauthorized practice of law because he had an office in and submitted claims from Mississippi but had no license there. 6RR73. Kassab testified that Pohl committed barratry based on the evidence he had seen. 4RR171-172, 215217, 219-220; 5RR50-51. Reese testified she was unlawfully solicited by Pohl. 7RR41- 50, 108. Pohl's office manager testified that Pohl paid Precision to acquire clients [88] and refer them to Pohl, and that Pohl paid Precision a percentage of his fees in exchange. 7RR162-166. Kassab's experts testified Pohl committed the unauthorized practice of law in Mississippi, 8RR142-144, and would have testified that Pohl committed barratry if they had been permitted. 7RR218; 8RR157-158, 257-258. A "yes" answer to Proposed Question 6 would have established that Pohl acquired the purported trade secrets unlawfully, thus precluding any recovery for misappropriation of trade secrets. Second, Kassab requested submission of Proposed Question 8, which asked, "Did Kassab use or disclose Pohl's information for the purpose of reporting, investigating, or filing a lawsuit relating to a suspected violation of law, a commission of a crime, or other matters of substantial public concern?" 13CR10902-10903. That question was directly relevant to Kassab's privilege or immunity defense because "trade secret law permits disclosures relevant to public health or Page 37 of 40 2025 TX APP. CT. BRIEFS LEXIS 119, 88 safety, commission of crime or tort, or other matters of substantial public concern." Bartnicki, 532 U.S. at 539. More than sufficient evidence supported submission. Pohl testified that Kassab used or disclosed Pohl's [89] alleged trade secrets as evidence to file lawsuits and grievance proceedings against Pohl for barratry. 5RR203-205; 6RR24-25, 55. Kassab denied that the information constituted Pohl's trade secrets but testified that the information was used to discharge his ethical obligations, report Pohl's misconduct to the disciplinary authority, and inform individuals whom may have been unlawfully solicited that what Pohl did was a crime. 5RR47. A "yes" answer to Proposed Question 8 would have established that Kassab had privilege or immunity with respect to any purported misappropriation or "use" of Pohl's alleged trade secrets. Charge error is harmful, and thus reversible, if it relates to a contested critical issue. R.R. Comm'n of Tex. v. Gulf Energy Expl. Corp., 482 S.W.3d 559, 566-71 (Tex. 2016). Proposed Questions 6 and 8 were both contested critical issues because a "yes" answer to either would have precluded liability against Kassab. Therefore, the trial court's erroneous refusal to submit these questions warrants a new trial. See id. E. Factually insufficient evidence supports the jury's findings. For the reasons in section I(A-C) and I(E)(3), the evidence is factually insufficient to support the jury's findings [90] that (1) that Pohl owned a trade secret in attorney-client contracts and lists of Pohl's actual, potential, or rejected clients; (2) Kassab engaged in misappropriation, much less willful misappropriation, of Pohl's alleged trade secret; and (3) Kassab did not use the purported trade secrets while in an attorney-client relationship. Even if the evidence supporting those findings is not legally insufficient, it is at least factually insufficient. Accordingly, if the Court does not reverse and render judgment in favor of Kassab, he is at least entitled to a new trial. IV. The trial court erred by dismissing Kassab's counterclaims for civil barratry. The trial court erred when it granted Pohl's traditional motion for summary judgment on Kassab's counterclaims for civil barratry pursuant to section 82.0651 of the Texas Government Code. 2CR892. No argument Pohl advanced in his motion withstands scrutiny. First, Pohl argued res judicata. 1CR389-391. But that doctrine does not apply if facts change and the relationship between the parties has been altered. Marino v. State Farm Fire & Cas. Ins. Co., 787 S.W.2d 948, 949-50 (Tex. 1990). That is what occurred here. Before there was a final judgment dismissing the clients' [91] civil barratry claims based on limitations, 35 Pohl sued Kassab arising from the same transaction where the barratry occurred. 1CR27-37. That act allowed the clients to assign the barratry claims to Kassab to be brought as counterclaims in this action, 36 thus allowing C.P.R.C. section 16.069 to revive the otherwise time-barred barratry 35 The Gandy case was dismissed by the trial court in June 2018, 1CR509, but was appealed, and the judgment was not affirmed until May 2021. See 634 S.W.3d at 214. The Brumfield case was dismissed by the trial court in June 2019, 1CR450, but was appealed, and the judgment was not affirmed until May 2021. See 634 S.W.3d at 170. 36 1CR451-453, 768. Page 38 of 40 2025 TX APP. CT. BRIEFS LEXIS 119, 91 claims. 1CR362-370. Because both the factual circumstances and the relationship between the parties changed, res judicata did not apply. 37 See Marino, 787 S.W.2d at 949-50 (res judicata did not bar [92] insured's subsequent suit for bad faith because claim was not available when first judgment was entered). Second, Pohl argued limitations. 1CR391-398. But limitations is tolled on these claims pursuant to section 16.069 because they arise out of the same transaction or occurrence that is the basis of Pohl's action and were filed within 30 days from the date on which Kassab was required to answer. See 1CR692-701 (explaining relationship between claims and how they were timely asserted). Third, Pohl argued that the clients' assignments of barratry claims against him are invalid, violate public policy, and should not be enforced. Pohl should have been estopped from making this argument after he told other courts that the assignments were valid. 1CR703-704. Regardless, the assignments were not invalid as a matter of law because a civil barratry claim is not a claim for legal malpractice or for violation of the Deceptive Trade Practices Act, the only claims that cannot be assigned under Texas law. 1CR704-707 (citing Brumfield, 634 S.W.3d at 206 (rejecting as "misplaced" clients' effort to "analogize legal-malpractice claims to civil-barratry claims") and 1CR832 (recognition by [93] Pohl that "civil barratry claims are different")). Moreover, even if the assignments violated the disciplinary rules, Pohl has no standing to complain, and Texas courts have enforced agreements even if they contravene the rules. See 1CR707-710; Royston, Rayzor, Vickery, & Williams, LLP v. Lopez, 467 S.W.3d 494, 504 (Tex. 2015); M.A. Mills, P.C. v. Kotts, 640 S.W.3d 323, 331 (Tex. App.--Houston [14th Dist.] 2022, pet. denied). The trial court's erroneous granting of Pohl's motion constituted harmful error, not only because it prevented Kassab from pursuing those claims at trial, but also because it impacted the evidence of barratry that Kassab could present and which would have undoubtedly changed the course of the proceedings, as demonstrated previously, and led to the jury's erroneous conclusion that Pohl was not responsible for his damages. CONCLUSION AND PRAYER The Court should reverse and render judgment in favor of Kassab, or, alternatively, reform the judgment to reduce the damages awarded, or, alternatively, remand for new trial on Pohl's claims against Kassab. Either way, the Court should reverse the trial court's dismissal of Kassab's counterclaims for barratry and remand for further proceedings. ALEXANDER DUBOSE & JEFFERSON, LLP /s/ Kevin Dubose [94] Kevin Dubose 37 Moreover, res judicata only applies to claims that arise out of the same "transaction, or series of connected transactions, out of which the action arose." Barr v. Resolution Trust Corp., 837 S.W.2d 627, 631 (Tex. 1992). Here, Pohl argued that the barratry claims "do not arise out of the same transaction or occurrence as Pohl's claims." 1CR393. Page 39 of 40 2025 TX APP. CT. BRIEFS LEXIS 119, 94 kdubose@adjtlaw.com Texas State Bar No. 06150500 Marisa C. Hurd mhurd@adjtlaw.com Texas State Bar No. 24041157 1844 Harvard Street Houston, Texas 77008 Phone (713) 523-0667 Facsimile (713) 522-4553 THE KASSAB LAW FIRM /s/ David Eric Kassab David Eric Kassab Texas State Bar No. 24071351 Lance Christopher Kassab Texas State Bar No. 00794070 1214 Elgin Street Houston, Texas 77004 Telephone: (713) 522-7400 E-service: eserve@kassab.law ATTORNEYS FOR APPELLANTS CERTIFICATE OF COMPLIANCE Based on a word count run in Microsoft Word, this brief contains 16,655 words (excluding the items exempted under Texas Rule of Appellate Procedure 9.4(i)(1)). /s/ David Eric Kassab David Eric Kassab CERTIFICATE OF SERVICE I certify that on January 6, 2025, I electronically filed this brief with the Clerk of the Court using the eFile.TXCourts.gov electronic filing system which will send notification of such filing to all counsel of record. /s/ David Eric Kassab David Eric Kassab Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this [95] document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Page 40 of 40 2025 TX APP. CT. BRIEFS LEXIS 119, 95 David Kassab Bar No. 24071351 david@kassab.law Envelope ID: 95910556 Filing Code Description: Brief Requesting Oral Argument Filing Description: Appellants' Brief Status as of 1/7/2025 8:36 AM CST Associated Case Party: LanceChristopherKassab[SEE IMAGE IN ORIGINAL] Associated Case Party: MichaelA.Pohl[SEE IMAGE IN ORIGINAL] Associated Case Party: Law Office of Michael A. Pohl, PLLC[SEE IMAGE IN ORIGINAL] [SEE APPENDIX TAB 1 IN ORIGINAL] [SEE APPENDIX TAB 2 IN ORIGINAL] [SEE APPENDIX TAB 3 IN ORIGINAL] [SEE APPENDIX TAB 4 IN ORIGINAL] [SEE APPENDIX TAB 5 IN ORIGINAL] [SEE APPENDIX TAB 6 IN ORIGINAL] [SEE APPENDIX TAB 7 IN ORIGINAL] [SEE APPENDIX TAB 8 CHARGE OF THE COURT IN ORIGINAL] [SEE APPENDIX TAB 9 IN ORIGINAL] [SEE APPENDIX TAB 10 FINAL JUDGMENT IN ORIGINAL] [SEE EXHIBIT 1 IN ORIGINAL] End of Document