orders: 8

16 trial court and appellate orders with full text

Data license: Public court records

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order_id	date	title	court	filename	full_text
8	2019-04-24	2019-04-24 BRF Kassab-Appellants-Brief-TCPA-Appeal FILED	appellate	2019-04-24_BRF_Kassab-Appellants-Brief-TCPA-Appeal_FILED.pdf	ACCEPTED 01-18-01143-cv FIRST COURT OF APPEALS HOUSTON, TEXAS 4/24/2019 2:47 PM CHRISTOPHER PRINE CLERK No. 01-18-01143-CV _________________________________________ FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS IN THE FIRST COURT OF APPEALS 4/24/2019 2:47:11 PM at Houston CHRISTOPHER A. PRINE _________________________________________ _ _ _ _ _ Clerk LANCE CHRISTOPHER KASSAB AND LANCE CHRISTOPHER KASSAB, PC D/B/A THE KASSAB LAW FIRM, ET AL. Appellants MICHAEL POHL AND LAW OFFICE OF MICHAEL A. POHL, PLLC Appellees ______________________________________________ On Appeal from the 189th Judicial District Court of Harris County, Texas Trial Court Cause No. 2018-58419 ______________________________________________ BRIEF OF THE KASSAB APPELLANTS ______________________________________________ ALEXANDER DUBOSE & JEFFERSON LLP THE KASSAB LAW FIRM Kevin Dubose Lance Christopher Kassab Texas State Bar No. 06150500 Texas State Bar No. 00794070 kdubose@adjtlaw.com lance@kassab.law 1844 Harvard St. David Eric Kassab Houston, Texas 77008 Texas State Bar No. 24071351 Phone (713) 523-2358 david@kassab.law Facsimile (713) 522-4553 1214 Elgin Street Houston, Texas 77004 Phone (713) 522-7400 Facsimile (713) 522-7410 ORAL ARGUMENT REQUESTED IDENTITY OF PARTIES AND COUNSEL Appellants: Lance Christopher Kassab and Lance Christopher Kassab PC, d/b/a The Kassab Law Firm Appellants’ Counsel: Kevin Dubose ALEXANDER DUBOSE & JEFFERSON LLP 1844 Harvard St. Houston, Texas 77008 (713) 523-0667 (713) 522-4553 (facsimile) Appellate Counsel Lance Christopher Kassab David Eric Kassab THE KASSAB LAW FIRM 1214 Elgin Street Houston, Texas 77004 (713) 522-7400 (713) 522-7410 (facsimile) Trial and Appellate Counsel George “Buck” Cire THE CIRE LAW FIRM 1770 Saint James Place Suite 350, Houston, Texas 77057 (713) 532-6206 (713) 400-4999 (facsimile) Trial Counsel Appellants: Tina Nicholson and Baker Nicholson, LLP d/b/a Baker Nicholson Law Firm Appellants’ Counsel: Jessica Z. Barger E. Marie Jamison WRIGHT CLOSE & BARGER, LLP One Riverway, Suite 2200 Houston, Texas 77056 (713) 572-4321 (713) 572-4320 (facsimile) Trial and Appellate Counsel Chris C. Pappas Andrew J. Sarne Kimberly C. Clark KANE RUSSELL COLEMAN LOGAN PC 5051 Westheimer Road, Suite 1000 Houston, Texas 77056 (713) 425-7400 (713) 425-7700 (facsimile) Trial and Appellate Counsel Appellants: Scott Favre, Scott M. Favre Public Adjuster, LLC and Precision Marketing Group, LLC Appellants’ Counsel: Todd Taylor Jocelyn A. Holland JOHANSON & FAIRLESS 1456 First Colony Boulevard Sugar Land, Texas 77479 (281) 313-5000 (281) 340-5100 (facsimile) Trial and Appellate Counsel Appellees: Michael Pohl and Law Office of Michael A. Pohl, PLLC Appellees’ Counsel: Jean C. Frizzell REYNOLDS FRIZZELL LLP 1100 Louisiana St., Suite 3500 Houston, Texas 77002 (713) 485-7200 (713) 485-7250 (facsimile) Trial and Appellate Counsel Nonparty to Appeal: F. Douglas Montague III and Montague Pittman & Varnado, P.A. Nonparty’s Counsel: Dale Jefferson Raul Suazo Kevin Cain MARTIN, DISIERE, JEFFERSON & WISDOM, LLP 808 Travis Street, 20th Floor Houston, Texas 77002 (713) 632-1700 (713) 222-0101 (facsimile) Trial Counsel III TABLE OF CONTENTS Identity of Parties and Counsel .................................................................................. I Table of Contents .................................................................................................... IV Index of Authorities ............................................................................................... VII Record References .................................................................................................... 1 Statement of Case ...................................................................................................... 2 Issues Presented ........................................................................................................ 3 Statement of Facts ...................................................................................................... 4 Pohl is sued by Mississippi “runners” who expose his illegal and unethical barratry scheme ................................................................................ 4 Precision transfers and assigns its assets and claims against Pohl to Favre – Pohl counterclaims for conversion in the Mississippi Litigation but settles when he cannot obtain summary dismissal ................... 9 Kassab, Favre, Precision and Nicholson associate to expose Pohl’s illegal and unethical barratry and more than 400 victims of Pohl’s barratry scheme associate with Kassab to petition and file civil claims and grievances against Pohl ...........................................................................10 Pohl sues Kassab and others for theft of trade secrets, conversion and civil conspiracy – Kassab moves for dismissal under Chapter 27 of the Texas Civil Practice & Remedies Code, which is denied by operation of law .............................................................................................................12 Summary of Argument ........................................................................................... 13 Standard of Review ................................................................................................. 15 Argument................................................................................................................. 16 I. The trial court erred by failing to grant Kassab’s motion to dismiss ..... 16 A. Pohl’s claims against Kassab are based on, related to, or in response to Kassab’s exercise of a protected right ...................... 17 1. Pohl’s claims against Kassab are based on, related to or in response to Kassab’s right to free speech ................. 17 2. Pohl’s claims against Kassab are based on, related to or in response to Kassab’s right to petition ....................... 20 3. Pohl’s claims against Kassab are based on, related to or in response to Kassab’s right to associate ..................... 22 B. The commercial speech exception does not apply ....................... 23 C. Pohl did not establish a prima facie case against Kassab by clear and specific evidence .......................................................... 30 1. The trial court abused its discretion by failing to sustain Kassab’s evidentiary objections ............................ 30 a. The affidavit of Billy Shepherd and its attached documents are not admissible ..................................... 31 b. The declaration of Pohl is conclusory and constitutes no evidence ............................................... 33 c. With his evidence properly excluded, Pohl presented no evidence to establish a prima facie case against Kassab ..................................................... 39 2. Even if the evidence is considered, Pohl failed to establish a prima facie case against Kassab ...................... 39 a. The conversion claim fails .......................................... 40 b. The theft of trade secrets claims fail ........................... 44 c. Because the underlying claims fail, the conspiracy claim also fails .......................................... 48 D. Even if Pohl established a prima facie case, his claims fail as a matter of law because they are barred by the statute of limitations, the attorney immunity doctrine and res judicata....... 49 1. Pohl’s claims are barred by the statute of limitations ........ 49 2. Pohl’s claims are barred as a matter of law by the attorney immunity doctrine ................................................ 52 3. Pohl’s claims are barred by res judicata. ........................... 55 II. The trial court abused its discretion when it declined to grant Kassab’s request for attorney’s fees and sanctions ................................ 57 A. The trial court was required to award Kassab attorney’s fees in defending the dismissed claims, which were established here by the unchallenged evidence .............................................. 58 B. The trial court was mandated to award Kassab sanctions against Pohl in an amount sufficient to achieve the deterrent effect the statute requires ............................................................. 60 Conclusion and Prayer ............................................................................................ 61 Certificate of Compliance ....................................................................................... 63 Certificate of Service .............................................................................................. 63 Appendix ................................................................................................................. 64 INDEX OF AUTHORITIES Cases Page(s) 3-C Oil Co. v. Modesta P'ship, 668 S.W.2d 741 (Tex. App. – Austin 1984, no pet.) 41, 42 Abatecola v. 2 Savages Concrete Pumping, LLC, 2018 Tex. App. LEXIS 4653, 2018 WL 3118601 (Tex. App.—Houston [14th Dist.] June 26, 2018, pet. filed) 23 Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890 (Tex. 2018) 17 Alpert v. Crain, Caton & James, P.C., 178 S.W.3d 398 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) 54 Avila v. Larrea, 394 S.W.3d 646 (Tex. App.—Dallas 2012, pet. denied) 18 Bank of Houston v. Thomas, 1989 Tex. App. LEXIS 2750, 1989 WL 131081 (Tex. App. – Houston [14th Dist.] 1989, writ denied) 41 Barr v. Resolution Tr. Corp., 837 S.W.2d 627 (Tex. 1992) 55 Better Bus. Bureau of Metro. Hous., Inc. v. John Moore Servs., Inc., 441 S.W.3d 345 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) 16 Beving v. Beadles, 2018 Tex. App. LEXIS 8540 (Tex. App. – Fort Worth, Oct. 18, 2018, no pet.) 21 Borden, Inc. v. Valdez, 773 S.W.2d 718 (Tex. App.—Corpus Christi 1989, no writ) 47 Burke v. Satterfield, 525 S.W.2d 950 (Tex. 1975) 32 Burns v. Rochon, 190 S.W.3d 263 (Tex. App. – Houston [1st Dist.] 2006, no pet.) 49 Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477 (Tex. 2015) 52, 53, 54, 55 VII Castleman v. Internet Money Ltd., 546 S.W.3d 684 (Tex. 2018) 24, 26 Celtic Props., L.C. v. Cleveland Reg'l Med. Ctr., L.P., 2015 Tex. App. LEXIS 8051, 2015 WL 4600661 (Tex. App.—Beaumont July 31, 2015, no pet.) 35 Chapa v. Stonehaven Dev., Inc., 2013 Tex. App. LEXIS 10159 (Tex. App. – Corpus Christi, Aug. 15, 2013, no pet.) 36 Chavers v. Hall, 2011 U.S. Dist. LEXIS 63649, 2011 WL 2457943 (S.D. Tex. June 16, 2011) 57 Collins v. Collins, 2018 Tex. App. LEXIS 1932, 2018 WL 1320841 (Tex. App.—Houston [1st Dist.] Mar. 15, 2018, pet. denied) 21 Craig v. Tejas Promotions, LLC, 550 S.W.3d 287 (Tex. App.—Austin 2018, pet. filed) 19 Deaver v. Desai, 483 S.W.3d 668 (Tex. App.—Houston [14th Dist.] 2015, no pet.) 18 Dolcefino v. Randolph, 19 S.W.3d 906 (Tex. App. – Houston [14th Dist.] 2000, pet. denied) 34 Doran v. ClubCorp USA, Inc., 2008 Tex. App. LEXIS 1250, 2008 WL 451879 (Tex. App.—Dallas Feb. 21, 2008, no pet.) 41 E.I. du Pont de Nemours & Co. v. Shell Oil Co., 259 S.W.3d 800 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) 34 Elite Auto Body LLC v. Autocraft Bodywerks, Inc., 520 S.W.3d 191 (Tex. App.—Austin 2017, pet. dism'd) 23 Essman v. Gen. Accident Ins. Co. of America, 961 S.W.2d 572, 574 (Tex. App. – San Antonio 1997, no pet.) 56 Exxon Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194 (Tex. 2011) 51 VIII Exxon Mobil Pipeline Co. v. Coleman, 512 S.W.3d 895 (Tex. 2017) 18 Fraud-Tech, Inc. v. Choicepoint, Inc., 2006 Tex. App. LEXIS 3181, 2006 WL 1030189 (Tex. App.—Fort Worth Apr. 20, 2006, no pet.) 36 Freeman v. American Motorists Ins., 53 S.W.3d 710 (Tex. App.—Houston [1st Dist.] 2001 no pet.) 32 Game Sys. v. Forbes Hutton Leasing, Inc., 2011 Tex. App. LEXIS 4098 (Tex. App. – Fort Worth, May 26, 2011, no pet.) (mem. op.) 34 Gaskamp v. WSP USA, Inc., 2018 Tex. App. LEXIS 10643, 2018 WL 6695810 (Tex. App.—Houston [1st Dist.] Dec. 20, 2018, no pet. h.) 16, 19, 22, 39 Glatzer v. Skilling, 2017 U.S. Dist. LEXIS 112782 (S.D. Tex. Feb. 23, 2017) 57 Grant v. Pivot Tech. Sols., Ltd., 556 S.W.3d 865 (Tex. App.—Austin 2018, pet. filed) 27 Hebisen v. State, 615 S.W.2d 866 (Tex. Civ. App.—Houston [1st Dist.] 1981, no writ) 41 Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017) 27 Highland Capital Mgmt., LP v. Looper Reed & McGraw, P.C., 2016 Tex. App. LEXIS 442, 2016 WL 164528 (Tex. App.—Dallas Jan. 14, 2016, pet. denied) 53, 54 Humphreys v. Caldwell, 888 S.W.2d 469 (Tex. 1994) 31 In re Bass, 113 S.W.3d 735 (Tex. 2003) 45 In re Cauley, 437 S.W.3d 650 (Tex. App.—Tyler 2014, orig. proceeding) 46 In re George, 28 S.W.3d 511 (Tex. 2000) 40 In re Ginther, 2008 Bankr. LEXIS 2624 (Bankr. S.D. Tex. Aug. 29, 2008) 47 In re Higby, 414 S.W.3d 771 (Tex. App.—Houston [1st Dist.] 2013, orig. proceeding) 31 In re Lipsky, 460 S.W.3d 579 (Tex. 2015) 15 In re McCann, 422 S.W.3d 701 (Tex. Crim. App. 2013) 41 James v. Calkins, 446 S.W.3d 135 (Tex. App.—Houston [1st Dist.] 2014, pet. denied) 21, 39 Jim Walter Homes, Inc. v. Foster, 593 S.W.2d 749 (Tex. Civ. App. – Eastland 1979, no writ) 47 Jonalstem, Ltd. v. Corpus Christi Nat'l Bank, N.A., 923 S.W.2d 701 (Tex. App.—Corpus Christi 1996, writ denied) 56 Lippincott v. Whisenhunt, 462 S.W.3d 507 (Tex. 2015) 16 MacFarland v. Le-Vel Brands LLC, Tex. App. LEXIS 2569, 2017 WL 1089684 (Tex. App.—Dallas Mar. 23, 2017, no pet.) 25 Mayes v. Stewart, 316 S.W.3d 715 (Tex. App.—Houston [14th Dist.] 2010, no pet.) 49 McCollum v. Bank of N.Y. Mellon Tr. Co., 481 S.W.3d 352 (Tex. App.—El Paso 2015, no pet.) 35 Methodist Hosp. v. Zurich Am. Ins. Co., 329 S.W.3d 510 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) 38 Miller Weisbrod, L.L.P. v. Llamas-Soforo, 511 S.W.3d 181 (Tex. App. El Paso 2014, no pet.) 27, 28 Mission Wrecker Serv., S.A. v. Assured Towing, Inc., 2017 Tex. App. LEXIS 7226, 2017 WL 3270358 (Tex. App.—San Antonio Aug. 2, 2017, pet. denied) 31 Moldovan v. Polito, 2016 Tex. App. LEXIS 8283, 2016 WL 4131890 (Tex. App.—Dallas Aug. 2, 2016, no pet.) 25 Moorehouse v. Chase Manhattan Bank, 76 S.W.3d 608 (Tex. App. – San Antonio 2002, no pet.) 43 Morgan v. Clements Fluids S. Tex., LTD., 2018 Tex. App. LEXIS 9061, 2018 WL 5796994 (Tex. App.—Tyler Nov. 5, 2018, no pet. h.) 19 MVS Int'l Corp. v. Int'l Advert. Sols., LLC, 545 S.W.3d 180 (Tex. App.—El Paso 2017, no pet.) 23 Nat. Gas Pipeline Co. of Am. v. Justiss, 397 S.W.3d 150 (Tex. 2012) 38 NCDR, L.L.C. v. Mauze & Bagby, PLLC, 745 F.3d 742 (5th Cir. 2014) 27, 28, 29 Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., 416 S.W.3d 71 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) 23, 24 Plas-Tex, Inc. v. Jones, 2000 Tex. App. LEXIS 3188 (Tex. App. – Austin, May 18, 2000, pet. denied) (mem. op.) 38 Porter-Garcia v. Travis Law Firm, P.C., 564 S.W.3d 75 (Tex. App.—Houston [1st Dist.] 2018, pet. denied) 21 Ramon v. Dow, 2009 Tex. App. LEXIS 1450, 2009 WL 508427 (Tex. App.—Houston [14th Dist.] Mar. 3, 2009, no pet.) 43 Resolution Tr. Corp. v. H, P.C., 128 F.R.D. 647 (N.D. Tex. 1989) 41 Rhoades v. Prudential Leasing Corp., 413 S.W.2d 404 (Tex. Civ. App. – Austin 1967, no writ) 56 Ryland Group, Inc. v. Hood, 924 S.W.2d 120 (Tex. 1996) 33 San Antonio & A. P. R. Co. v. Smith, 171 S.W. 282 (Tex. Civ. App. 1914) 43 Schimmel v. McGregor, 438 S.W.3d 847 (Tex. App.—Houston [1st Dist.] 2014, pet. denied) 26, 30, 58 Serafine v. Blunt, 2017 Tex. App. LEXIS 4606, 2017 WL 2224528 (Tex. App.—Austin May 19, 2017, pet. denied) 61 Sherman v. Boston, 486 S.W.3d 88 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) 41 Stephens v. Precision Drilling Oilfield Servs. Corp., 2013 Tex. App. LEXIS 5700, 2013 WL 1928797 (Tex. App.—Houston [1st Dist.] May 9, 2013, no pet.) 33 Stewart Abstract Co. v. Judicial Comm'n of Jefferson County, 131 S.W.2d 686 (Tex. Civ. App. – Beaumont 1939, no writ) 47 Stewart & Stevenson Servs. v. Serv-Tech, Inc., 879 S.W.2d 89 (Tex. App. – Houston [14th Dist.] 1994, writ denied) 45 Stroud Prod., L.L.C. v. Hosford, 405 S.W.3d 794 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) 40 Sullivan v. Abraham, 488 S.W.3d 294 (Tex. 2016) 58, 61 Toth v. Sears Home Improvement Products, Inc., 557 S.W.3d 142 (Tex. App.—Houston [14th Dist.] 2018, no pet.) 25 Trammel Crow Co. No. 60 v. Harkinson, 944 S.W.2d 631 (Tex. 1997) 48 Travelers Ins. Co. v. Joachim, 315 S.W.3d 860 (Tex. 2010) 55 U Haul Int'l, Inc. v. Waldrip, 380 S.W.3d 118 (Tex. 2012) 31 Urquhart v. Calkins, 2018 Tex. App. LEXIS 5145, 2018 WL 3352919 (Tex. App.—Houston [1st Dist.] July 10, 2018, no pet. h.) 59, 61 Ventling v. Johnson, 466 S.W.3d 143 (Tex. 2015) 59 Watson v. Hardman, 497 SW3d 601 (Tex. App. – Dallas 2016, no pet.) 20 XII Youngkin v. Hines, 546 S.W.3d 675 (Tex. 2018) 15, 52, 54 Texas Statutes Texas Civil Practice & Remedies Code 16.003(a) 49, 51 16.010(a) 49, 51 27.001(1) 17, 18 27.001(2) 19, 21, 22 27.001(3) 17 27.001(4) 20 27.001(7) 17, 19 27.005(a) 2 27.005(b) 15, 17 27.005(c) 15, 30 27.005(d) 15, 49, 51 27.006(a) 16 27.008(a) 2, 12 27.009(a) 16, 57, 58, 60 27.010(b) 15, 23 134A.002(3) 44 134A.002(6) 46 134A.004(a) 44 Texas Penal Code 38.12 4 Texas Rules Texas Rule of Evidence 101 32 XIII 602 31 803 32 902 33 Other Texas Disciplinary Rule of Professional Conduct 1.15(d) 41 8.03(a) 11 XIV RECORD REFERENCES __CR__ Clerk Record, the first number is the volume, the second number is the page number. __3SCR__ Third Supplemental Clerk Record, the first number is the volume, the second number is the page number. __RR__ Reporter Record, the first number is the volume and the second number the page number. App. Tab ___ Documents in the Appendix, organized by lettered Tabs. STATEMENT OF CASE Nature of the case. Pohl1 is a lawyer who sued Kassab2 and others3 for theft of trade secrets, conversion and civil conspiracy. App. Tab 1; 1CR4-14. Trial court: 189th Judicial District Court of Harris County, Texas; the Honorable Bill Burke.4 Course of proceedings. Kassab moved to dismiss the claims pursuant to the Texas Citizens Participation Act, and promptly scheduled a hearing on the motion. 1CR62-679; 3SCR6-90;1RR1-45. Trial court’s disposition. The trial court failed to rule on the motion within 30 days, as required by statute, TEX. CIV. PRAC. & REM. CODE § 27.005(a), so the motion was denied by operation of law. Id. at § 27.008(a). 1 Appellees Michael Pohl and Law Office of Michael A. Pohl, PLLC. 2 Appellants Lance Christopher Kassab and Law Offices of Lance Christopher Kassab, PC. 3 Appellants Tina Nicholson, Baker Nicholson, LLP d/b/a Baker Nicholson Law Firm, Scott Favre, Scott M. Favre Public Adjuster, LLC and Precision Marketing Group, LLC and nonparties F. Douglas Montague III and Montague Pittman & Varnado, P.A. 4 Judge Burke was replaced on January 1, 2019 by Judge Scot Dollinger. ISSUES PRESENTED Issue 1: Did the trial court err by failing to grant Kassab’s motion to dismiss pursuant to Chapter 27 of the Texas Civil Practice & Remedies Code? • Did the trial court err by impliedly concluding that Pohl’s claims against Kassab did not fall within the purview of Chapter 27 of the Texas Civil Practice & Remedies Code? • Did the trial court err by impliedly applying the commercial speech exception? • Did the trial court abuse its discretion by impliedly overruling Kassab’s objections to Pohl’s evidence? • Did the trial court err by impliedly concluding that Pohl established a prima facie case against Kassab even if Pohl’s evidence was not excluded? • Did the trial court err by impliedly concluding that Kassab did not establish that Pohl’s claims are barred by attorney immunity, statute of limitations or res judicata? Issue 2: If the trial court erred by not dismissing one or more of Pohl’s claims against Kassab, did the trial court abuse its discretion by declining to award Kassab attorney’s fees and sanctions when those fees are mandatory under the statute? STATEMENT OF FACTS Pohl is sued by Mississippi “runners” who expose his illegal and unethical barratry scheme. In October 2014, three Mississippi residents, Scott Walker (“Walker”), Kirk Ladner (“Ladner”) and Steve Seymour (“Seymour”), and their related entities, including Precision Marketing Group, LLC (“Precision”), filed suit against Houston lawyer Michael Pohl (“Pohl”)5 and others in Mississippi federal court (the “Mississippi Litigation”).6 1CR117-168. There, Precision, Walker, Ladner and Seymour (sometimes, the “runners”) alleged that: (1) they had a joint venture with Pohl to sign up clients with economic loss claims stemming from the BP Deepwater Horizon oil spill and clients involved in tragic auto accidents; (2) that they successfully obtained these clients for Pohl; and (3) that Pohl breached their agreement by not paying them their agreed-upon fee, including their agreed share of Pohl’s attorney’s fees for referring these clients to Pohl. 1CR148, 153. The evidence presented in the Mississippi Litigation established that Pohl engaged in barratry. See TEX. PEN. CODE § 38.12 (defining barratry generally as the improper solicitation of clients). During that litigation, Walker testified that Pohl 5 Sometimes “Pohl” will also refer to Law Office of Michael A. Pohl, PLLC. 6 Cause No. 14-cv-381-KS-JCG; Scott Walker, et al. v. Michael A. Pohl, et al.; In the United States District Court for the Southern District of Mississippi, Southern Division. retained him and Precision to “provide marking services to auto accident victims[.]” 1CR171. Walker testified that although he and Pohl called it “marketing services” or “marketing money,” it was “clear to [him] it was barratry.” 1CR178. In fact, Walker considered himself and his company “a pass-through for barratry money.” 1CR179. All told, the runners received over $5 million in “barratry pass-through money” from Pohl and other lawyers to solicit potential clients, both auto-accident victims and those involved in the BP litigation. 1CR176. The runners used this money to pay contract workers to solicit clients. 1CR179. The runners would locate and instruct contract workers on how to accomplish the solicitation. 1CR177. The runners trained “40 or 50 people” on how to “go out and solicit contracts” on behalf of Pohl. 1CR179. Walker and his team of runners at Precision were first retained by Pohl to “recruit clients” with losses resulting from the BP Deepwater Horizon oil spill. 1CR183. When that litigation dwindled, Pohl shifted his focus to significant auto accident cases. 1CR142-147. To accomplish this task, individuals at Precision would receive “Google alerts” or leads from Pohl on recent catastrophic auto accidents. Id. Walker testified that he, Ladner, or the runners at Precision would go to the victims of the auto accident to “do marketing” by letting them know “there were attorneys [who] could help.” 1CR185. In exchange, these runners where paid between $2,500 and $5,000 to solicit the client. 1CR192-193. These payments flowed from Pohl through a company set up for this purpose, “Helping Hands Financing,” to Precision, to each individual runner. 1CR194-201, 211. Walker simply submitted to Pohl the amount that Precision paid its runners and Pohl reimbursed Precision. 1CR202. One of the runners, Magdalena Santana (“Santana”), testified to the barratry in an affidavit filed in the Mississippi Litigation. 1CR205-240. She testified that Pohl sent her on “dozens and dozens of car wreck cases all over the country” to solicit clients on his behalf. 1CR208. Pohl would email Santana the link of news coverage depicting the accident and ask her “to go to the victim or the victim’s family and try to get them to sign up with him.” Id. Pohl offered to pay Santana “$5,000 per case that [she] signed, plus a percentage of his attorney’s fees.” 1CR209. Santana was advised by Pohl to “be persistent even if the family ... rejected [her].” Id. Santana was instructed by Pohl to “approach the victims and their families while they were vulnerable, in the emergency room, their hospital rooms or at the funerals.” Id. (emphasis added). Pohl told Santana that minorities “were especially vulnerable since they tended not to know that the law prohibited barratry.” Id. According to Pohl, they “were easier to sign up.” Id. Pohl paid Santana “money to give to the victims or their families” but “only if they agreed to sign a Pohl representation contract.” 1CR208. Pohl advised Santana that the money was a “foot in the door,” but instructed Santana not to mention that she was there on behalf of a lawyer “until after they agreed to take the money.” 1CR210-211. “If the client agreed to hire Pohl, then [Santana] was to have the client sign a ‘Helping Hands’ contract.” Id. Pohl would then give Santana the money to pay the client “from his own Helping Hands company.” Id. When Santana questioned this, Pohl told Santana that it “was illegal for him to pay [her] directly for cases, and that’s why the money had to go through some company.” 1CR210. Santana further confirmed the barratry in her deposition. 1CR248-264. She testified that she was hired by Pohl to solicit auto accident cases, the first one an accident where a woman and her unborn child lost their lives. 1CR249. Santana was instructed by Walker, who was instructed by Pohl, to personally visit the mother of the deceased and sign her up to sue the tire manufacturer and, if successful, Pohl would pay her $5,000. 1CR249-250. Santana visited the funeral of the deceased and got the family to feel comfortable with her. Id. Although the mother was grieving, Pohl told Santana: “take no prisoners, this is a cut throat business, you get in there and you do whatever it takes to get this client.” 1CR251. The solicitation was successful after Pohl gave Santana $2,000 to “give to the client to convince her into signing over with the firm.” 1CR252. Pohl later paid Santana to sign an agreement not to reveal that Pohl committed any wrongdoing or criminal or unethical conduct. 1CR261. Santana testified that Pohl paid her $50,000 cash to sign this agreement, which was delivered to her in Florida by Pohl’s paralegal, Edgar Jaimes (“Jaimes”), in three bags marked “trick or treat.” 1CR254-259. Jaimes confirmed this under oath, 1CR243-244, and this criminal act remains undisputed. Santana signed the statement and received the cash, although she believed she was “forced to sign” it while “under duress.” 1CR261- 262. Another runner, Kenneth Talley (“Talley”), testified in the Mississippi Litigation about the barratry. Talley solicited over 20 auto accident cases for Pohl, including two families who hired Kassab to sue Pohl for barratry. 1CR296. Talley testified that he was first hired in relation to BP claims to find “folks that lost money due to the oil spill” and “sign them up” and “get a fee for it.” 1CR280. Talley solicited and signed up for Pohl and his partner more than 800 BP claims, and was paid between $75 and $350 per client he referred. 1CR280-282. Talley eventually transitioned to soliciting auto accident victims, “calling on folks that had bad accidents.” 1CR283. Talley recalls that the first client he solicited was in “the hospital in intensive care.” Id. Talley always carried with him up to $1,000 in cash to pay accident victims to “help them with problems” and influence them to hire Pohl, to be paid only after they “were signed up.” 1CR284. Talley would advise the victims that he had an attorney who could help them, and that attorney was Pohl. 1CR287. For each auto accident case he solicited, Talley was paid a fee of $1,400 plus his expenses by Pohl, through Walker and Precision. 1CR287-288. On some cases, Talley was to receive a portion of Pohl’s attorney’s fees, and even discussed with Pohl the “percentage of settlements” he was to receive on the back side. 1CR298-302. When asked whether Pohl knew he was getting paid to “contact vehicle accident victims,” Talley responded, “the money was coming from Edgar [Jaimes] who worked for him.” 1CR301. Although his paycheck was from Precision, “the funding came by way of Edgar [Jaimes].” Id. Talley testified that both he and Pohl knew what they were doing was illegal. 1CR293-294. Precision transfers and assigns its assets and claims against Pohl to Favre – Pohl counterclaims for conversion in the Mississippi Litigation but settles when he cannot obtain summary dismissal. In May 2016, during the Mississippi Litigation, an insurance adjuster named Scott Favre (“Favre”) purchased Precision and all the company’s assets, including Precision’s claims against Pohl in the Mississippi Litigation. 1CR640; 3SCR137. Favre and Precision were represented in the Mississippi Litigation by Texas lawyer, Tina Nicholson, and her firm, Baker Nicholson, LLP (“Nicholson”). 1CR8, 110, 342. Pohl asserted counterclaims in the Mississippi Litigation alleging that Walker and Precision (and other unknown defendants and co-conspirators) converted his property. 3SCR16-18. Most notably, Pohl moved to dismiss the claims against him, admitting that the agreements between him and the runners were illegal and unenforceable. 1CR336-339. Pohl argued that under both Texas and Mississippi law “it is illegal for a non-lawyer to accept or agree to accept money to improperly solicit clients for a lawyer.” 1CR338. The Mississippi federal court rejected Pohl’s contention, stating that the agreements to solicit clients would only be a violation of Texas law and disciplinary rules, which did not apply to the runners who were Mississippi residents. 1CR349-350. After failing to obtain summary dismissal, Pohl settled the Mississippi Litigation with all parties, including Favre and Precision, hoping to forever conceal his barratry operation. 1CR353-354. Kassab, Favre, Precision and Nicholson associate to expose Pohl’s illegal and unethical barratry and more than 400 victims of Pohl’s barratry scheme associate with Kassab to petition and file civil claims and grievances against Pohl. Kassab is a licensed Texas attorney who has been practicing law for almost twenty-five years. 1CR109. Kassab graduated from law school with honors and was editor-in-chief of law review. Id. Kassab is a former intern and briefing attorney for this Court and a former intern for the Texas Supreme Court. Id. For more than twenty years, Kassab’s practice has focused primarily on representing victims of legal malpractice and publicly exposing attorney misconduct. Id. Kassab was tipped off to the allegations in the Mississippi Litigation by an acquaintance, F. Douglas Montague of the Mississippi law firm Montague Pittman & Varnado, PA (“Montague”), who was also an acquaintance of Favre and Nicholson. 1CR109-110. Kassab obtained information related to the Mississippi Litigation from the federal court’s online system, PACER. 1CR 110. Kassab also 10 associated Precision and its owner, Favre, and its counsel, Nicholson, and obtained information from them, including the names and addresses of Pohl’s former clients or prospective clients. 1CR109-110. With this information, Kassab sent written notifications to individuals he believed were victims of unethical conduct. 1CR110. Hundreds of individuals responded, indicating they had been personally solicited to hire Pohl relating to their auto accident or BP claims and requested representation. Id. Kassab agreed to represent these clients, and more than 400 individuals hired Kassab to represent them in barratry claims against Pohl. Id. Kassab filed four petitions on behalf of these barratry victims in Harris County, Texas (the “barratry lawsuits”). 1CR379-576. These petitions communicated matters of public concern: that Pohl conspired to commit unethical solicitation known as barratry. See id.; see also 1CR110. After reviewing the evidence obtained from the Mississippi Litigation, Kassab believed he had a duty to file a grievance against Pohl,7 and he did. Id. Kassab also filed a grievance against Pohl on behalf of one of his clients. Id. In the grievances, Kassab and his client expressed matters of public concern relating to Pohl’s legal services in the market 7 See TEX. DISC. R. PROF’L COND. 8.03(a) (except in circumstances which do not apply here, “a lawyer having knowledge that another lawyer has committed a violation of applicable rules of professional conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate disciplinary authority.”). 11 place and petitioned the State Bar of Texas to reprimand and discipline Pohl in order to protect the citizens of Texas and other states. See id.; see also 1CR 578-638. Pohl sues Kassab and others for theft of trade secrets, conversion and civil conspiracy – Kassab moves for dismissal under Chapter 27 of the Texas Civil Practice & Remedies Code, which is denied by operation of law. Pohl sued Kassab, Precision, Nicholson, Favre and Montague, alleging breach of contract, theft of trade secrets, conversion and civil conspiracy. App. Tab 1; 1CR4-14. Pohl alleged that these parties were “acting in combination with the agreed objective” to misappropriate his trade secrets and convert the marketing lists and attorney-client contracts that Precision obtained. 1CR9, 13. Pohl alleged Favre and Precision, with Nicholson’s assistance, converted this property and provided it to Kassab and Montague in order to convince Pohl’s former clients “to bring cases against Pohl for alleged barratry and other claims.” 1CR9-10. Kassab denied the allegations and immediately moved to dismiss the lawsuit pursuant to the Texas Citizens Participation Act (“TCPA”), Chapter 27 of the Texas Civil Practice & Remedies Code. 1CR75-679; 3SCR6-90. Nicholson and Favre then filed their own motions to dismiss based on the TCPA. 2CR 867-880; 3SCR136- 223. A timely hearing was conducted on Kassab’s motion to dismiss. 1RR. The trial court did not rule on the motion within thirty days and the motion was denied by operation of law. TEX. CIV. PRAC. & REM. CODE § 27.008(a). 12 SUMMARY OF ARGUMENT The trial court erred by impliedly denying Kassab’s motion to dismiss because Kassab demonstrated that the claims against him for alleged conversion, theft of trade secrets and conspiracy are based on, related to, or in response to Kassab’s exercise of a right protected by the TCPA, and that Pohl’s allegations do not fall within the commercial speech exception. Because the TCPA applied, Pohl was required to establish a prima facie case against Kassab but failed to do so. The trial court also abused its discretion when it impliedly declined to sustain Kassab’s objections to Pohl’s evidence. The affidavit of Pohl’s counsel was not admissible because it did not meet the requirements of an affidavit and the attached documents were not authenticated as business records, and they contained hearsay. The declaration of Pohl was conclusory, which constitutes no evidence at all. With this evidence properly excluded, the motion to dismiss should have been granted. However, even if the evidence was considered, Pohl still failed to establish a prima facie case against Kassab because Pohl did not own the property that he says Kassab allegedly converted, and because Pohl presented no evidence that Kassab unlawfully and without authorization assumed control of his property or acquired this property by improper means. Additionally, Pohl presented no evidence that he demanded return of the property from Kassab or that Kassab refused to return it. 13 Moreover, the materials at issue are not trade secrets. Because these underlying claims fail, Pohl’s conspiracy claim also fails. Even if Pohl established a prima facie case, his claims fail as a matter of law because they are barred by the statute of limitations, the attorney immunity doctrine, and res judicata. Pohl’s claims are barred by limitations because Pohl testified under oath that the basis of his claims occurred in 2014, but he neglected to bring suit within three years. Pohl claims that Kassab used stolen information to determine which clients had been illegally solicited by Precision to hire Pohl, and then brought barratry claims against Pohl on behalf of these clients. Under these allegations, these actions fall squarely within the attorney immunity doctrine. Additionally, Pohl’s claims against Kassab are barred by res judicata because Pohl brought claims against Kassab’s alleged co-conspirators in earlier litigation for the same conduct alleged here, and that litigation resulted in a final judgment. Finally, the trial court abused its discretion when it failed to grant Kassab’s request for attorney’s fees and sanctions. The TCPA requires an award of reasonable attorney’s fees and sanctions to the successful movant. Kassab presented unchallenged evidence that established the reasonable amount of attorney’s fees Kassab had incurred and would likely incur on appeal. Because the trial court improperly denied the motion to dismiss, it abused its discretion when it declined to award Kassab attorney’s fees and sanctions. 14 STANDARD OF REVIEW The TCPA “protects citizens who petition or speak on matters of public concern from retaliatory lawsuits that seek to intimidate or silence them.” In re Lipsky, 460 S.W.3d 579, 584 (Tex. 2015) (orig. proceeding). The enforcement vehicle is a motion to dismiss for “any suit that appears to stifle the defendant’s” exercise of those rights. Id. (emphasis added). Reviewing a TCPA motion to dismiss requires a three-step analysis. See Youngkin v. Hines, 546 S.W.3d 675, 679-80 (Tex. 2018). (1) The moving party must show that the action against it is based on the exercise of the rights as defined in the TCPA. See TEX. CIV. PRAC. & REM. CODE § 27.005(b). (2) If the movant meets its burden, the nonmoving party must establish a prima facie case for each element of its claim, Id. § 27.005(c), or that one of several exemptions to the TCPA apply, such as the commercial speech exemption. See id. § 27.010(b). (3) If the nonmoving party satisfies that requirement, the burden shifts back to the movant to prove each element of a defense. Id. § 27.005(d). If dismissal is appropriate, the trial court must award the moving party “court costs, reasonable attorney’s fees, and other expenses incurred in defending against 15 the legal action,” as well as sanctions “sufficient to deter the party who brought the legal action from bringing similar actions[.]” Id. at § 27.009(a). The Court must conduct a de novo review of the trial court’s determinations that the parties met or failed to meet their burdens of proof under the TCPA. See Gaskamp v. WSP USA, Inc., No. 01-18-00079-CV, 2018 Tex. App. LEXIS 10643, 2018 WL 6695810, at 26 (Tex. App.—Houston [1st Dist.] Dec. 20, 2018, no pet. h.); Better Bus. Bureau of Metro. Hous., Inc. v. John Moore Servs., Inc., 441 S.W.3d 345, 353 (Tex. App.—Houston [1st Dist.] 2013, pet. denied). The Court must consider the pleadings and evidence on which the claim or defense is based to determine whether the statute is implicated. See TEX. CIV. PRAC. & REM. CODE § 27.006(a). To the extent resolution of this appeal turns on construction of the TCPA, the Court must also review these issues de novo. Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015). ARGUMENT I. The trial court erred by failing to grant Kassab’s motion to dismiss. Pohl’s claims against Kassab fall squarely within the TCPA and the commercial speech exception does not apply. Because Pohl failed to establish a prima facie case against Kassab and because Pohl’s claims against Kassab were barred as a matter of law, the trial court erred in failing to grant Kassab’s motion to dismiss. 16 A. Pohl’s claims against Kassab are based on, related to, or in response to Kassab’s exercise of a protected right. For Pohl’s claims against Kassab to fall within the TCPA, Kassab was required to demonstrate by a preponderance of the evidence (which may include Pohl’s pleadings) that Pohl’s claims against him where based on, related to, or is in response to Kassab’s right of free speech, right to petition, or right of association. See TEX. CIV. PRAC. & REM. CODE § 27.005(b). Kassab met this burden. 1. Pohl’s claims against Kassab are based on, related to or in response to Kassab’s right to free speech. Kassab established that Pohl’s claims against him were based on, related to or in response to Kassab’s right to free speech. See TEX. CIV. PRAC. & REM. CODE § 27.001(3). The TCPA defines the exercise of the right of free speech as a “communication made in connection with a matter of public concern.” TEX. CIV. PRAC. & REM. CODE § 27.001(3). A “matter of public concern” includes an issue related to “economic, or community well-being … or a good, product, or service in the marketplace.” Id. § 27.001(7)(A). A “communication” is defined as the “making or submitting of a statement or document in any form or medium including oral, visual, written, audiovisual, or electronic.” Id. at § 27.001(1). The plain language of this definition extends the application of the TCPA to “[a]lmost every imaginable form of communication, in any medium.” Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 894 (Tex. 2018). Moreover, the TCPA does not require that the 17 communication be made publicly. See ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 900 (Tex. 2017) (“we determined that the TCPA’s plain language does not require communication in public form”). Pohl’s claims against Kassab for theft of trade secrets, conversion and civil conspiracy are all based on, related to, or in response to Kassab’s “communications” with Precision, Favre and Nicholson concerning Pohl’s legal services in the market place and how Pohl’s clients were acquired through barratry. See 1CR9. Communications concerning Pohl’s legal services, especially how Pohl acquired his clients, are matters of public concern. See Deaver v. Desai, 483 S.W.3d 668, 673 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (claim by blogger questioning the lawyer’s ability to represent clients were “matters of public concern” under the TCPA); Avila v. Larrea, 394 S.W.3d 646, 655-656 (Tex. App.—Dallas 2012, pet. denied) (communication about a lawyer’s handling of cases was a matter of public concern within the TCPA). Moreover, the alleged transfer and exchange of Pohl’s purported trade secrets and proprietary information required “communications,” or “the making or submitting of a statement or document in any form or medium, including oral, visual, written, audiovisual, or electronic.” See TEX. CIV. PRAC. & REM. CODE § 27.001(1). Similarly, allegations that Kassab and others engaged in a scheme or conspired with 18 each other to misappropriate Pohl’s purported trade secrets8 also necessarily involve “communications.” See id.; see also Craig v. Tejas Promotions, LLC, 550 S.W.3d 287, 296-97 (Tex. App.—Austin 2018, pet. filed) (determining that conspiring to misappropriate trade secrets involved a TCPA communication). All the alleged communications were made by individuals who “join[ed] together to collectively express, promote, pursue, or defend common interests,” the common interest being exposing Pohl’s unethical conduct as a lawyer licensed in the State of Texas and the misuse of his legal services in the market place. See TEX. CIV. PRAC. & REM. CODE § 27.001(2); see also Morgan v. Clements Fluids S. Tex., LTD., No. 12-18-00055-CV, 2018 Tex. App. LEXIS 9061, 2018 WL 5796994, 3 (Tex. App.—Tyler Nov. 5, 2018, no pet. h.) (indicating that defendants’ sharing and use of their former employers’ trade secrets were TCPA “communications”). The alleged communications would have been made in connection with one of the listed matters of public concern – a “service in the marketplace” – because the communications related to Pohl’s legal services. See id. § 27.001(7)(E). Accordingly, Pohl’s claims related to Kassab’s exercise of his right of free speech. See Gaskamp, 2018 Tex. App. LEXIS 10643, at 12 (allegations that employees conspired together to misappropriate employer’s trade secrets and confidential 8 See 1CR 4-6, 13-14. 19 information related to employees’ right of free speech because such claims “would necessarily involve communications as defined by the TCPA.”). 2. Pohl’s claims against Kassab are based on, related to or in response to Kassab’s right to petition. Kassab also established that Pohl’s claims against him are based on, related to, or is in response to Kassab’s right to petition. See TEX. CIV. PRAC. & REM. CODE § 27.001(4). The TCPA provides that “a communication in or pertaining to a judicial proceeding” constitutes the exercise of the right to petition. Id. at § 27.001(4)(A)(i). There is no requirement that the subject matter of the proceeding concern the government or a public interest for the protection to apply. See Watson v. Hardman, 497 SW3d 601, 606 (Tex. App. – Dallas 2016, no pet.) (“legislature could have qualified or limited the term ‘a judicial proceeding’ … but it did not.”). Although Pohl’s claims for conversion, theft of trade secrets and conspiracy do not arise out of the barratry lawsuits and grievances, Pohl’s claims against Kassab are at least “related to” or “concern” these lawsuits and grievances. See 1CR9-10 (stating Kassab allegedly used Pohl’s confidential trade secrets to communicate with Pohl’s former clients “to act as plaintiffs” and “to bring cases against Pohl for alleged barratry and other claims.”); 2CR 899 (stating Kassab continues “to use Pohl’s information and property to solicit cases against Pohl.”). Pohl’s own allegations against Kassab are sufficient to demonstrate that the claims against Kassab are 20 related to Kassab’s right to petition as broadly defined by the TCPA. See Porter- Garcia v. Travis Law Firm, P.C., 564 S.W.3d 75, 85 (Tex. App.—Houston [1st Dist.] 2018, pet. denied) (concluding TCPA protections encompass “legal action” that is factually predicated upon or relates to alleged conduct that would fall within the TCPA’s definition of the exercise of the right to petition); Collins v. Collins, No. 01-17-00817-CV, 2018 Tex. App. LEXIS 1932, 2018 WL 1320841, at 12-13 (Tex. App.—Houston [1st Dist.] Mar. 15, 2018, pet. denied) (mem. op.) (ex-wife’s claims against administrator of ex-husband’s estate for fraud and conversion based on alleged misrepresentation or nondisclosure of assets during divorce were protected under the TCPA because deceased “was exercising his right to petition when he served the affidavit and inventory in the divorce”).9 3. Pohl’s claims against Kassab are based on, related to or in response to Kassab’s right to associate. Kassab also established that Pohl’s claims against him where based on, related to, or is in response to Kassab’s right to associate. See TEX. CIV. PRAC. & REM. CODE § 27.001(2). “Exercise of the right of association” is “a communication between individuals who join together to collectively express, promote, pursue, or defend 9 See also James v. Calkins, 446 S.W.3d 135, 147-48 (Tex. App.—Houston [1st Dist.] 2014, pet. denied) (claims for fraud against attorney and client arising out of prior litigation were protected as the exercise of the right to petition); Beving v. Beadles, No. 02-17-00223-CV, 2018 Tex. App. LEXIS 8540, at 12 (Tex. App. – Fort Worth, Oct. 18, 2018, no pet.) (concluding deposition and affidavit testimony provided in the underlying lawsuit constituted a communication made in a judicial proceeding and was an exercise of the right to petition). 21 common interests.” Id. The right to associate protects communications that do not relate to a public purpose, including communications alleged to be wrongful, such as the sharing of purportedly confidential information for an improper purpose. See Gaskamp, 2018 Tex. App. LEXIS 10643, at 33 (allegations that defendants “secretly conspired among themselves” to “devise and implement wrongful and unlawful schemes” to misappropriate trade secrets fell within purview of right to associate). Pohl alleges that Kassab, Montague, Nicholson and Favre were “acting in combination with the agreed objective” to allegedly misappropriate his trade secrets and confidential information in order to solicit clients. 2CR901. More specifically, Pohl alleges that Favre and Nicholson provided Kassab “with information from Precision’s files, including the names and addresses of Pohl’s former clients or prospective clients,” and that Kassab then used this information “to contact and solicit Pohl’s clients/prospective clients.” 2CR896-897. Therefore, Pohl’s own pleadings demonstrate that his claims against Kassab fall squarely within the broad definition of the right to associate. See Gaskamp, 2018 Tex. App. LEXIS 10643, at 32 (concluding allegation that defendants induced parties, with whom plaintiff had contracts, “to reduce” their business with the plaintiff and “sharing [the plaintiff’s] confidential, proprietary, and trade secret information to interfere with these 22 prospective contracts and business relationships would necessarily involve communications as defined by the TCPA.”).10 B. The commercial speech exception does not apply. Pohl argues that even if his allegations against Kassab where based on, related to, or is in response to Kassab’s protected rights, “the speech and conduct would fall within the commercial speech exception in the statute.” 1CR694. The trial court erred if it agreed with Pohl and relied on the commercial speech exception when it impliedly denied the motion to dismiss. The TCPA does not apply “to a legal action brought against a person primarily engaged in the business of selling or leasing goods or services, if the statement or conduct arises out of the sale or lease of goods, services … or a commercial transaction in which the intended audience is an actual or potential buyer or customer.” TEX. CIV. PRAC. & REM. CODE § 27.010(b) (emphasis added). The party claiming this exception bears the burden of proof. See Newspaper Holdings, Inc. v. 10 See also Abatecola v. 2 Savages Concrete Pumping, LLC, No. 14-17-00678-CV, 2018 Tex. App. LEXIS 4653, 2018 WL 3118601, at 19 (Tex. App.—Houston [14th Dist.] June 26, 2018, pet. filed) (mem. op.) (concluding that interfering with customers would necessarily have required communications to the customers and association, thus falling within the right to associate); Elite Auto Body LLC v. Autocraft Bodywerks, Inc., 520 S.W.3d 191, 206 (Tex. App.—Austin 2017, pet. dism'd) (holding the right of association applied to claims concerning theft of confidential information); MVS Int'l Corp. v. Int'l Advert. Sols., LLC, 545 S.W.3d 180, 194 (Tex. App.—El Paso 2017, no pet.) (explaining that, as statute is written, conspiracy claims would fall under TCPA’s right of association). 23 Crazy Hotel Assisted Living, Ltd., 416 S.W.3d 71, 89 (Tex. App.—Houston [1st Dist.] 2013, pet. denied). The Texas Supreme Court has established a four-part test for applying the commercial speech exemption: (1) the defendant was primarily engaged in the business of selling or leasing goods, (2) the defendant made the statement or engaged in the conduct on which the claim is based in the defendant's capacity as a seller or lessor of those goods or services, (3) the statement or conduct at issue arose out of a commercial transaction involving the kind of goods or services the defendant provides, and (4) the intended audience of the statement or conduct were actual or potential customers of the defendant for the kind of goods or services the defendant provides. Castleman v. Internet Money Ltd., 546 S.W.3d 684, 688 (Tex. 2018) (per curiam) (emphasis added). Pohl’s pleadings demonstrate why this exception does not apply. Pohl repeatedly contends that Kassab’s alleged involvement in the transaction at issue led to him providing legal services to new clients and filing barratry lawsuits against Pohl. 1CR695-696 (stating Kassab “purchased Pohl’s list of clients and former clients, together with the attorney fee contracts for the purpose of soliciting those clients.”) 1CR695. But the commercial speech exemption is not triggered by conduct that leads to the subsequent sale of services; the exemption applies only to the conduct making up the sale of services. See Castleman, 546 S.W.3d at 688-89. In other words, Pohl’s claims for conversion and theft of trade secrets do not arise out 24 of soliciting clients to further Kassab’s business. Because the solicitation occurred after the alleged theft and conversion, Pohl’s claims do not “arise out of” any commercial transaction involving Kassab’s usual business. Additionally, Pohl is not suing Kassab for conduct “based upon” the legal services that Kassab provided or anything Kassab did or said to his actual or potential clients. Rather, Pohl is suing Kassab because Kassab allegedly “wrongfully exercised dominion and control over Pohl’s property in contravention of Pohl’s rights” and “willfully and maliciously misappropriated Pohl’s trade secrets by using them without the express or implied consent of Pohl.” 1CR900-901. Because Pohl’s claims do not arise “out of a commercial transaction involving the kind of goods or services” that Kassab provides, the commercial exception does not apply. See MacFarland v. Le-Vel Brands LLC, No. 05-16-00672-CV, 2017 Tex. App. LEXIS 2569, 2017 WL 1089684, at 9 (Tex. App.—Dallas Mar. 23, 2017, no pet.) (mem. op.) (exemption not met because statement or conduct at issue was “not about” defendant’s business of selling services).11 11 Moldovan v. Polito, No. 05-15-01052-CV, 2016 Tex. App. LEXIS 8283, 2016 WL 4131890, (Tex. App.—Dallas Aug. 2, 2016, no pet.) (mem. op.) (internet posts were not exempted from TCPA's protections because they were not about the defendant's business); Toth v. Sears Home Improvement Products, Inc., 557 S.W.3d 142, 154 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (“Even before Castleman, courts have held that the exemption is not established unless the challenged statement was ‘about’ the speaker's particular goods or services, or the speaker's business of selling them.”). 25 Finally, the commercial exception requires the intended audience of the conduct out of which Pohl’s claims arise to be “actual or potential customers” of Kassab “for the kind of goods or services” that Kassab provides. Castleman, 546 S.W.3d at 688. The “audience” of the alleged conduct was Favre and Precision, who Pohl alleges Kassab purchased his confidential information and trade secrets from. See 1CR9; 2CR869 (“Favre and Precision, with the assistance of Nicholson, struck a rich bargain; Kassab and Montague paid Favre $250,000.00 in cash together with substantial bonuses.”). The exemption does not apply, and a seller of goods or services may avail himself of the TCPA, “when he speaks of other goods or services in the marketplace.” Castleman, 546 S.W.3d at 689 (emphasis added). Here, Kassab is not in the business of purchasing marketing lists. As recognized by Pohl, “Kassab is primarily engaged in the business of selling legal services” to his clients. 2CR695. Moreover, there is no allegation by Pohl that Favre and Precision are Kassab’s usual clients. Nor could there be, because neither Favre nor Precision sought legal services from Kassab. See 1CR110 (describing the relationship between the parties). Accordingly, Pohl failed to show that Kassab’s alleged conduct arose from the provision of legal services to his clients. Therefore, the commercial exception does not apply. See Schimmel v. McGregor, 438 S.W.3d 847, 858 (Tex. App.—Houston [1st Dist.] 2014, pet. denied) (holding exemption inapplicable because the “ultimate intended audience” for the movant’s conduct was 26 the City of Galveston, and the movant, an attorney, “did not represent the City of Galveston, nor was the City a “potential buyer or customer” of the movant’s legal services).12 Pohl has cited two cases for his proposition that “Kassab’s solicitation of Pohl’s clients and former clients falls squarely within the commercial exception to the TCPA.” 1CR694 (citing Miller Weisbrod, L.L.P. v. Llamas-Soforo, 511 S.W.3d 181 (Tex. App. El Paso 2014, no pet.) and NCDR, L.L.C. v. Mauze & Bagby, PLLC, 745 F.3d 742 (5th Cir. 2014)). Pohl’s reliance on these two cases is misplaced. First, Pohl is not suing Kassab for soliciting clients; he is suing Kassab for alleged theft of property and trade secrets. 1CR4; 2CR890. The trial court was required to disregard any characterization of Pohl’s claims against Kassab and look to Pohl’s pleadings to determine the nature of the action. See Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017) (“the trial court was obliged to consider the [plaintiff’s] pleadings” and these pleadings are “the best and all-sufficient evidence of the nature of the action.”) (internal quotations omitted). “When it is clear from the plaintiff's pleadings that the action is covered by the [TCPA], the defendant need show no more.” Id. Pohl’s pleadings that Kassab allegedly misappropriated his trade secrets 12 See also Grant v. Pivot Tech. Sols., Ltd., 556 S.W.3d 865, 888-889 (Tex. App.—Austin 2018, pet. filed) (exception inapplicable because while the alleged conduct at issue – a breach of a purchase agreement – arose out of the agreement, the plaintiff failed to show that the agreement involved computer-related services like the defendant provides or that the audience of the conduct was an actual or potential customer of defendant). 27 is the basis of his action, not the solicitation of clients. See 1CR4 (“Defendants engaged in a scheme pursuant to which they illegally obtained, maintained, and used trade secrets and other confidential information and property belonging to Pohl.”). Accordingly, Pohl’s reliance on Miller Weisbrod and Mauze is misplaced. Miller Weisbrod involved a lawsuit for slander and defamation against a law firm by an ophthalmologist contending television commercials that encouraged former patients of ophthalmologist to contact the law firm if they were left blind by treatment. Miller Weisbrod, 511 S.W.3d at 183-84. The law firm moved to dismiss pursuant to the TCPA and the ophthalmologist claimed the commercial speech exception. Id. at 184. The trial court denied the motion to dismiss and the law firm appealed. Id. The court of appeals affirmed, recognizing that the ophthalmologist’s claims of slander arose out of the advertisements, which were commercial speech excepted from the TCPA. Id. at 191. Likewise, Mauze involved a law firm that “engaged in an advertising campaign to solicit former dental patients … from dental clinics as potential clients.” Id. at 745. Based on the law firm’s advertisements and website, the dental clinics sued the firm for false advertising, defamation and business disparagement. Id. at 746. The law firm moved to dismiss pursuant to the TCPA. The district court denied the motion based on the commercial speech exception. Id. at 746. The law firm appealed. Id. 28 In the absence of Texas Supreme Court interpretation of the commercial speech exception, the Fifth Circuit made an “an Erie guess” relying on Texas intermediate appellate court decisions. Id. at 755. The Fifth Circuit concluded the commercial speech exception applied because the dental clinics’ claims for false advertising and defamation arose out of the advertisements themselves, which were directed to the law firm’s potential customers. See id. Miller Weisbrod and Mauze are not helpful here because they were decided four years before the Texas Supreme Court case we rely on, Castleman. Moreover, they also are factually distinguishable. Again, Pohl is not suing Kassab for defamation arising from Kassab’s statements to his potential clients. Nor is Pohl suing Kassab for false advertising in the letters that Kassab sent to potential clients. Rather, the focus of the “conduct” at issue is the alleged theft of confidential trade secrets and property. 1CR12 (“In knowingly purchasing the stolen information, Kassab [has] wrongfully exercised dominion and control over Pohl’s property in contravention of Pohl’s rights as owner of that property.”); 1CR13 (“All Defendants willfully and maliciously misappropriated Pohl’s trade secrets by using them without the express or implied consent of Pohl.”); 1CR13-14 (“Acting in combination with the agreed object of misappropriating Pohl’s trade secrets and converting Pohl’s property, each of the Defendants committed overt acts toward the unlawful misappropriation of Pohl’s trade secrets, which were unlawful and which 29 proximately caused damages to Pohl.”). Even Pohl agrees that he did not sue Kassab for solicitation of clients, but “for conversion because Kassab [allegedly] knowingly purchased confidential information and materials that were stolen from Pohl.” 1CR690. Because Pohl’s claims are not based on advertisements by lawyers to potential clients, Miller Weisbrod and Mauze are distinguishable, and do not establish that the commercial speech exception applied to Pohl’s claims against Kassab. See Schimmel, 438 S.W.3d at 858. C. Pohl did not establish a prima facie case against Kassab by clear and specific evidence. Since each claim alleged by Pohl fell within the TCPA, the trial court was required to dismiss the claims against Kassab unless Pohl “establishe[d] by clear and specific evidence a prima facie case for each essential element of the claim in question.” TEX. CIV. PRAC. & REM. CODE § 27.005(c). Pohl failed to meet this burden, and the trial court erred by not granting the motion to dismiss. 1. The trial court abused its discretion by failing to sustain Kassab’s evidentiary objections. Pohl responded to Kassab’s motion to dismiss with his own declaration and sworn testimony from his counsel. See 2CR713-845 (affidavit from Billy Shepherd with exhibits); 2CR847-848 (declaration of Pohl); 2CR850-852 (declaration of Jean 30 Frizzell).13 Kassab objected to statements in and documents attached to Shepherd’s affidavit, and objected to Pohl’s declaration. 3SCR104-109. The trial court’s implied overruling of these objections was an abuse of discretion. See U Haul Int'l, Inc. v. Waldrip, 380 S.W.3d 118, 132 (Tex. 2012) (“Evidentiary rulings are committed to the trial court's discretion”); Mission Wrecker Serv., S.A. v. Assured Towing, Inc., No. 04-17-00006-CV, 2017 Tex. App. LEXIS 7226, 2017 WL 3270358, at 7 (Tex. App.—San Antonio Aug. 2, 2017, pet. denied) (mem. op.) (applying abuse of discretion standard to evidentiary objections made in TCPA case). a. The affidavit of Billy Shepherd and its attached documents are not admissible. Shepherd’s affidavit is objectionable for several reasons. First, it does not state that it is based upon personal knowledge and does not swear that the facts contained in it are “true and correct.” 2CR713-715. “An affidavit which does not positively and unqualifiedly represent the facts as disclosed in the affidavit to be true and within the affiant’s personal knowledge is legally insufficient.” Humphreys v. Caldwell, 888 S.W.2d 469, 470 (Tex. 1994); see also In re Higby, 414 S.W.3d 771, 780 (Tex. App.—Houston [1st Dist.] 2013, orig. proceeding) (“For an affidavit to have probative value, the affiant must swear that the facts presented in the affidavit reflect his personal knowledge.”); TEX. R. EVID. 602 (evidence must show the witness has 13 Frizzell initially failed to sign his declaration but later amended. See 3SCR101-102. 31 personal knowledge). Furthermore, an affidavit must contain direct and unequivocal statements that, if false, would be grounds for perjury. See Burke v. Satterfield, 525 S.W.2d 950, 955 (Tex. 1975). Shepherd’s affidavit does not confirm that the facts stated in it are true and correct, and therefore it is incompetent. Additionally, the exhibits attached to Shepherd’s affidavit are not properly authenticated. Shepherd’s affidavit fails to prove these documents as business records. 2CR713. To introduce a business record through a witness, a party must prove: (1) the record is a memorandum, report, other compilation of data; (2) the witness is the custodian or another qualified witness; (3) the record was made from information transmitted by a person with knowledge of the facts; (4) the record was made at or near the time of the acts, events, conditions, opinions, or diagnoses appearing on it; (5) the record was made as part of the regular practice of that business activity; and (6) the record was kept in the course of a regularly conducted business activity. See TEX. R. EVID. 101 (h)(4), 803 (6)(A)-(6)(D); see also Freeman v. American Motorists Ins., 53 S.W.3d 710, 715 (Tex. App.—Houston [1st Dist.] 2001 no pet.). Shepherd’s affidavit fails to establish elements (3) and (4) because it does not state that the cited records were made from information transmitted by a person with knowledge of the facts, or that the records were made at or near the time of the acts, events, conditions, opinions, appearing in them. See 2CR713-714. 32 Shepherd’s affidavit also fails to conform with Texas Rule of Evidence 902(10), which provides a form for proving a business record affidavit. TEX. R. EVID. 902(10)(B). Shepherd’s affidavit did not follow the form of the rule because Shepherd did not state that he is the custodian of records or otherwise establish how he knows what each particular document is. See 2CR713-714. Further, Shepherd failed to state that each of the records were made by persons with knowledge of the matters set forth in the records. See id. Accordingly, the documents attached as exhibits to Shepherd’s affidavits are hearsay upon hearsay. The trial court should have sustained these objections and struck the affidavit and the attached exhibits from the record. b. The declaration of Pohl is conclusory and constitutes no evidence. Kassab also objected to paragraphs 3, 4, 5, 6, 7, 8 and 9 of Pohl’s declaration because the statements contained in these paragraphs are conclusory and constitute no evidence. 3SCR105-109. The trial court should have sustained these objections. Conclusory declarations do not raise fact issues and are incompetent evidence. Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996); Stephens v. Precision Drilling Oilfield Servs. Corp., No. 01-11-00326-CV, 2013 Tex. App. LEXIS 5700, 2013 WL 1928797, at 19 (Tex. App.—Houston [1st Dist.] May 9, 2013, no pet.) (mem. op.). “A conclusory statement is one that does not provide the underlying 33 facts to support the conclusion.” Dolcefino v. Randolph, 19 S.W.3d 906, 930 (Tex. App. – Houston [14th Dist.] 2000, pet. denied). Moreover, a declaration is conclusory when it expresses “a factual inference without stating the underlying facts on which the inference is based.” E.I. du Pont de Nemours & Co. v. Shell Oil Co., 259 S.W.3d 800, 809 (Tex. App.—Houston [1st Dist.] 2007, pet. denied). Pohl’s declaration consists of nothing but conclusory statements. See 2CR847-848. Kassab objected to paragraph 3,14 which states: “I was and am the rightful owner of the confidential, privileged and trade secret information that Kassab obtained from Scott Favre and Tina Nicholson on which this suit is based.” 2CR847. This statement is conclusory because Pohl fails to describe what the purported confidential information or trade secrets are, or explain how he is the rightful owner of this information, as opposed to Favre or Precision, who have claimed to be the owner of the marketing lists provided to Kassab. Moreover, Pohl fails to explain how the information constitutes a trade secret. See Game Sys. v. Forbes Hutton Leasing, Inc., No. 02-09-00051-CV, 2011 Tex. App. LEXIS 4098, at 76 (Tex. App. – Fort Worth, May 26, 2011, no pet.) (mem. op.) (statement that the software “constitutes a trade secret” was conclusory and not proper evidence). 14 3SCR106-107. 34 Kassab objected to Paragraph 415 which states, “I did not provide consent for Kassab to exercise dominion and control over the property, and his exercise of that dominion and control is wrongful.” 2CR847. Pohl does not provide any factual support for this statement or explain why Kassab’s exercise and control over lists he obtained rightfully from Favre or Precision or their counsel is wrongful. See McCollum v. Bank of N.Y. Mellon Tr. Co., 481 S.W.3d 352, 362 (Tex. App.—El Paso 2015, no pet.) (conclusory statements in affidavit that conduct is “allegedly wrongful” is insufficient to raise fact issue that conduct alleged is in fact wrongful). Kassab objected to Paragraph 516 which states, “I have incurred damages as a result of Kassab’s conversion of my property, through at the very least, by the exposure of the confidential materials and information, which results in a loss of the intrinsic value to me as trade secrets and confidential materials.” 2CR847. This statement is conclusory because Pohl does not state what the alleged trade secrets or confidential materials are, or explain how he is allegedly damaged by Kassab’s alleged misappropriation of the material. See Celtic Props., L.C. v. Cleveland Reg'l Med. Ctr., L.P., No. 09-13-00464-CV, 2015 Tex. App. LEXIS 8051, 2015 WL 4600661, at 3 (Tex. App.—Beaumont July 31, 2015, no pet.) (mem. op.) (statement 15 3SCR107. 16 3SCR107. 35 that property was “damaged” as a result of defendant’s conduct was insufficient as a matter of law); Chapa v. Stonehaven Dev., Inc., No. 13-13-00030-CV, 2013 Tex. App. LEXIS 10159, at 9 (Tex. App. – Corpus Christi, Aug. 15, 2013, no pet.) (mem. op.) (statement “we lost the profits we would have made” is conclusory because it provides no underlying facts to support the conclusion); see also Fraud-Tech, Inc. v. Choicepoint, Inc., No. 02-05-150-CV, 2006 Tex. App. LEXIS 3181, 2006 WL 1030189, at 5 (Tex. App.—Fort Worth Apr. 20, 2006, no pet.) (mem. op.) (affidavit testimony that appellants were damaged because of the alleged conversion was conclusory when affiant did “not supply facts underlying its conclusions”). Kassab objected to Paragraph 617 which states, “Before they were stolen, I took substantial measures to maintain the materials and information that Kassab obtained from Scott Favre and Tina Nicholson as confidential and protected them as valuable trade secrets. I strictly limited access to them and by maintaining physical copies under lock and key.” 2CR 847-848. These statements are conclusory because Pohl does not describe (1) what “substantial” measures he took to maintain information obtained by Kassab, (2) what the information obtained by Kassab is, or (3) how the information obtained by Kassab is allegedly a “valuable trade secret.” See id. Pohl does not describe how he “strictly limited” access to his alleged 17 3SCR107-108. 36 confidential information, particularly when it freely ended up in the hands of Precision and Favre, who claimed ownership of the marketing material provided to Kassab. 1CR640-642 (affidavit of Favre discussing the materials owned by Precision which Pohl claims were his). Kassab objected to Paragraph 718 which states, “The stolen materials and information have independent economic value from not being generally known to, and not readily being ascertainable through proper means by, another person who can obtain economic value from the disclosure or use of the information.” 2CR 848. Pohl does not describe how any materials were purportedly stolen, what the materials are, how the materials are not known to the general public, or how the materials allegedly provide economic value to Pohl, rendering this statement conclusory. See id. Kassab objected to paragraph 819 which states “Kassab’s misappropriation of my trade secrets has caused me damages in both the form of actual loss of the value of my confidential materials and of unjust enrichment to Kassab as a result of his wrongful misappropriation.” 1CR848. Pohl again provides no facts to explain how Kassab allegedly misappropriated the trade secrets, how the information constitutes a trade secret or how the loss of the information caused Pohl damages or unjustly 18 3SCR108. 19 3SCR108-109. 37 enriched Kassab, rendering this statement conclusory. See Plas-Tex, Inc. v. Jones, NO. 03-99-00286-CV, 2000 Tex. App. LEXIS 3188, at 18 (Tex. App. – Austin, May 18, 2000, pet. denied) (mem. op.) (“conclusory statements regarding the value of intangible assets such as unidentified trade secrets” are insufficient to support claim of damages). The purported loss to Pohl of any alleged misappropriation of trade secrets is also a speculative, unqualified opinion of Pohl which is inadmissible. See Nat. Gas Pipeline Co. of Am. v. Justiss, 397 S.W.3d 150, 156 (Tex. 2012) (“testimony is speculative if it is based on guesswork or conjecture”). Kassab objected to Paragraph 920 which states “In the same ways that Kassab’s conversion and misappropriation of my confidential information injured me, I was injured by the conspiracy to commit those torts.” 2CR848. This is a conclusory statement within a conclusory statement, because Pohl does not describe the purported conversion or misappropriation and makes no effort to provide any facts supporting the alleged conspiracy claims. See id; see also Methodist Hosp. v. Zurich Am. Ins. Co., 329 S.W.3d 510, 530 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) (concluding that affiant’s “bare assertion” that the conduct of the opposing party was the “causal connection” of its damages was conclusory and “substantively defective” and nothing more than affiant’s subjective opinion). Thus, 20 3SCR109. 38 Pohl’s declaration is incompetent evidence that should have been struck from the record. c. With his evidence properly excluded, Pohl presented no evidence to establish a prima facie case against Kassab. Because Kassab’s objections are valid, the trial court abused its discretion when it impliedly overruled these objections and denied Kassab’s motion to dismiss. If this evidence had been properly excluded or disregarded, Pohl would have been left with no evidence to establish a prima facie case against Kassab. Thus, the trial court erred by failing to grant Kassab’s motion to dismiss. See Gaskamp, 2018 Tex. App. LEXIS 10643, at 35 (trial court erred when it did not grant motion to dismiss after no prima facie case was established); James, 446 S.W.3d at 142-44 (same). 2. Even if the evidence is considered, Pohl failed to establish a prima facie case against Kassab. Pohl admits that he engaged Precision, however he claims that it was to provide “public relations services,” and to “screen and liaise with Pohl’s clients/prospective clients,” rather than to personally solicit clients in violation of barratry laws. 1CR8-9. Pohl claims that Precision “gained access to Pohl’s confidential and proprietary information and property, including trade secret materials, that included the identities of Pohl’s clients/prospective clients, as well as their detailed contact information,” and then wrongfully sold this information to 39 Kassab. 1CR9-10. Based on this conduct, Pohl has asserted claims against Kassab for conversion, theft of trade secrets, and civil conspiracy. 1CR12-14. Even if the trial court correctly overruled Kassab’s objections and considered Pohl’s evidence, the trial court still erred in failing to grant the motion to dismiss because Pohl failed to establish each element of each claim. a. The conversion claim fails. The elements of conversion are (1) the plaintiff owned or had possession of the property or entitlement to possession; (2) the defendant unlawfully and without authorization assumed and exercised control over the property to the exclusion of, or inconsistent with, the plaintiff’s rights as an owner; (3) the plaintiff demanded return of the property; and (4) the defendant refused to return the property. Stroud Prod., L.L.C. v. Hosford, 405 S.W.3d 794, 811 (Tex. App.—Houston [1st Dist.] 2013, pet. denied). Pohl failed to establish each element. First, Pohl did not own the property allegedly converted by Kassab. Pohl claims the property converted included his client’s contact information obtained from his “attorney-client fee agreements” and “communications” and “legal forms” that he had with his “clients/prospective clients.” 1CR 8-9. But under Texas law, this property is owned by the client, not Pohl. See In re George, 28 S.W.3d 511, 516 (Tex. 2000) (“The attorney is the agent of the client, and the work product generated by the attorney in representing the client belongs to the client.”) (emphasis added); 40 Hebisen v. State, 615 S.W.2d 866, 868 (Tex. Civ. App.—Houston [1st Dist.] 1981, no writ) (same); In re McCann, 422 S.W.3d 701, 704 (Tex. Crim. App. 2013) (“a client owns the contents of his or her file.”); see also Resolution Tr. Corp. v. H, P.C., 128 F.R.D. 647, 650 (N.D. Tex. 1989) (client owns contents of his or her file because “attorney is hired to represent the interests of his client, and every service provided by the attorney, including the creation of legal memoranda and attorney’s notes and the copying of documents, is paid for by the client.”); TEX. DISCIPLINARY R. PROF'L CONDUCT 1.15(d). Because the property Pohl alleges was converted did not belong to him, Pohl has no standing to sue for conversion. See Sherman v. Boston, 486 S.W.3d 88, 95 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (individual member of company lacked standing to bring conversion claim because the checks that were allegedly converted belonged to the company, not the individual); Doran v. ClubCorp USA, Inc., No. 05-06-01511-CV, 2008 Tex. App. LEXIS 1250, 2008 WL 451879, at 6 (Tex. App.—Dallas Feb. 21, 2008, no pet.) (mem. op.) (plaintiff lacked standing to sue health club because he did not own the membership, his employer did); Bank of Houston v. Thomas, 1989 Tex. App. LEXIS 2750, 1989 WL 131081, at 22 (Tex. App. – Houston [14th Dist.] 1989, writ denied) (no conversion “as a matter of law” when property was not owned by plaintiff); 3-C Oil Co. v. 41 Modesta P'ship, 668 S.W.2d 741, 753 (Tex. App. – Austin 1984, no pet.) (“If [plaintiffs] did not own the equipment, no conversion took place, as to them.”). Second, even if the marketing lists and client information was not the property of the clients, it was the property of Precision. 1CR640-642. Favre testified that Precision “solicited many of the marketing contacts (individuals and businesses) on these lists for representation” by Pohl. 1CR641. Favre testified that the “marketing lists contain the names of thousands of persons who eventually became [Pohl’s] former clients, and/or whom [Pohl] solicited for representation.” Id. Favre made clear that the information that Pohl claims are the trade secrets and property converted by Kassab “were and are solely the work product and property of Precision, developed during the normal course of its marketing business.” Id. (emphasis added). Because Kassab obtained the information from Precision legally, Pohl did not establish that Kassab “unlawfully and without authorization” assumed control of the property. Kassab obtained the names and addresses of the victims of Pohl’s barratry from Precision (and/or its counsel), who was the owner of this property, not Pohl. 1CR110, 640-642. Kassab testified, without objection, that he understood Precision and Favre to be the owner of the property he obtained: I did not know that the information I was provided by Precision Marketing had been acquired from Pohl by improper means or misappropriated by anyone. In fact, I had reviewed an agreement that 42 indicated Walker, Ladner and Seymour and their companies had sold, conveyed or otherwise transferred all of their documents, lists, marketing materials, and other documents and assets to Favre and or his companies. 1CR110. Therefore, Kassab did not unlawfully obtain Pohl’s property, but lawfully obtained property belonging to Precision. See id. Third, even if the Court presumes that the first two elements are established by Pohl’s pleadings and evidence, Pohl failed to establish elements (3) and (4). Pohl does not allege that he demanded return of the allegedly stolen property or that Kassab refused to return it. 1CR12-13; 2CR900. Nor does Pohl provide any evidence that he demanded return of the purportedly stolen property. 2CR847-848. In fact, in response to the motion to dismiss, Pohl did not direct the trial court to any evidence establishing these elements whatsoever. 2CR704. Therefore, Pohl has failed to establish a prima facie case for conversion. See Ramon v. Dow, No. 14-07- 01024-CV, 2009 Tex. App. LEXIS 1450, 2009 WL 508427, at 2 (Tex. App.— Houston [14th Dist.] Mar. 3, 2009, no pet.) (mem. op.) (plaintiff failed to state a cause of action for conversion as a matter of law because he made “no allegation that [defendants] … affirmatively refused to return the materials.”).21 21 See also Moorehouse v. Chase Manhattan Bank, 76 S.W.3d 608, 615 (Tex. App. – San Antonio 2002, no pet.) (summary judgment on conversion claim affirmed because plaintiff “did not demand return of the check nor did [the bank] refuse to return it.”); San Antonio & A. P. R. Co. v. Smith, 171 S.W. 282, 283-84 (Tex. Civ. App. 1914) (railroad failed to establish that defendant had committed conversion because railroad did not make a demand for the return of property). 43 b. The theft of trade secrets claims fail. Pohl has sued Kassab for theft of trade secrets under the Texas Uniform Trade Secrets Act (“TUTSA.”), which allows for damages caused by trade secret “misappropriation.” 1CR 13; 2CR 900-901; see also TEX. CIV. PRAC. & REM. CODE § 134A.004(a). Pohl alleges that Kassab committed misappropriation under § 134A.002(3)(B) because he “purchased the trade secret information knowing that it had been stolen … without the express or implied consent of Pohl.” 1CR13. This section defines “misappropriation” as the: use of a trade secret of another without express or implied consent by a person who … at the time of disclosure or use, knew or had reason to know that the person’s knowledge of the trade secret was: (a) derived from or through a person who used improper means to acquire the trade secret; (b) acquired under circumstances giving rise to a duty to maintain the secrecy of or limit the use of the trade secret; (c) derived from or through a person who owed a duty to the person seeking relief to maintain the secrecy of or limit the use of the trade secret TEX. CIV. PRAC. & REM. CODE § 134A.002(3)(B)(ii) (emphasis added). Therefore, to prove his TUTSA claim against Kassab, Pohl must establish that (1) the materials at issue constitute trade secrets; and (2) Kassab “knew or had reason to know” that 44 Favre or Nicholson acquired Pohl’s trade secrets through improper means. See id. Pohl has failed to establish either element. First, the materials at issue are not trade secrets. To determine whether information constitutes a trade secret, the following six factors must be considered: (1) the extent to which the information is known outside the claimant's business; (2) the extent to which the information is known by employees and others involved in the claimant's business; (3) the extent of the measures taken by the claimant to guard the secrecy of the information; (4) the value of the information to the claimant and to its competitors; (5) the amount of effort or money expended by the claimant in developing the information; and (6) the ease or difficulty with which the information could be properly acquired or duplicated by others. In re Bass, 113 S.W.3d 735, 739 (Tex. 2003). The party claiming trade secret status bears the burden of proof of establishing that something is a trade secret. Stewart & Stevenson Servs. v. Serv- Tech, Inc., 879 S.W.2d 89, 99 (Tex. App. – Houston [14th Dist.] 1994, writ denied). Pohl alleges that the trade secrets allegedly misappropriated included “actual attorney-client fee agreements with clients/prospective clients” and “communications between the clients/prospective clients” and “specialized legal forms” and “administrative client forms” and unidentified “proprietary marketing information…” 1CR9. However, Pohl failed to provide any evidence to support these allegations. 1CR847-848. Rather, Pohl makes the conclusory statement that he 45 is “the rightful owner of the confidential, privileged and trade secret information,” but makes no effort to describe or identify the purported trade secrets. 1CR847. Pohl does not discuss the extent to which the information is known by those involved inside or outside his business, the extent of the measures taken by Pohl to guard the secrecy of the information, the value of the information, the amount of effort or money expended by Pohl in developing the information, or the ease or difficulty with which the information could be properly acquired or duplicated by others. 1CR847-848. Pohl has not met these elements because he cannot — any information obtained by Kassab was conveyed and assigned by Precision to Favre. 1CR640-642. Therefore, Pohl has not met his burden of proof to establish that the materials allegedly misappropriated are trade secrets. See In re Cauley, 437 S.W.3d 650, 657 (Tex. App.—Tyler 2014, orig. proceeding) (trade secret privilege not applicable when party failed to establish materials constituted trade secrets). For this reason, Pohl’s misappropriation of trade secret claims against Kassab fail. Moreover, under the TUTSA, information is not a trade secret if it is generally known to the public. See TEX. CIV. PRAC. & REM. CODE § 134A.002(6)(A) (defining “trade secret” to include “all forms and types of information” that “the owner … has taken reasonable measures under the circumstances to keep the information secret.”). The names and addresses of Pohl’s clients or prospective clients and his fee agreements with these individuals are not confidential or privileged and are 46 generally known to the public. See Borden, Inc. v. Valdez, 773 S.W.2d 718, 720 (Tex. App.—Corpus Christi 1989, no writ) (“the attorney-client privilege certainly does not encompass such nonconfidential matters as the terms and conditions of an attorney’s employment and the purpose for which an attorney has been engaged.”); Jim Walter Homes, Inc. v. Foster, 593 S.W.2d 749, 752 (Tex. Civ. App. – Eastland 1979, no writ) (fee agreement is not privileged or confidential because it is a matter collateral to the professional relationship, and has no bearing on the merits of the matter on which the attorney was hired).22 Finally, the TUTSA requires Pohl to show that Kassab “knew or had reason to know” that the purported trade secrets were acquired by improper means. TEX. CIV. PRAC. & REM. CODE § 134A.002(3). Pohl failed to present evidence to establish this intent. Here, the evidence establishes, as a matter of law, that Precision, and not Pohl, owned the information that Pohl claims is his trade secret. 1CR640-643. The evidence also establishes that Kassab understood, based on Favre’s testimony and his discussions with Favre or his counsel, and his review of certain agreements, that Precision was the owner of the information. 1CR110. Attempting to rebut this 22 See also Stewart Abstract Co. v. Judicial Comm'n of Jefferson County, 131 S.W.2d 686, 690 (Tex. Civ. App. – Beaumont 1939, no writ) (account and ledger books showing names of clients, nature of services rendered, and payments were not privileged or confidential); In re Ginther, No. 07-80200-G3-11, 2008 Bankr. LEXIS 2624, at 14 (Bankr. S.D. Tex. Aug. 29, 2008) (recognizing that the “identity of client, terms and conditions of employment, amount of fee, identification of payment by case file name, and the general purpose of the work performed, are not privileged.”). 47 testimony, Pohl directed the trial court to his own declaration. 2CR705. However, the extent of Pohl’s testimony on this subject is that Kassab’s exercise of “dominion and control” over the information “is wrongful.” 2CR847. This single conclusory statement is insufficient to establish that Kassab “knew or had reason to know” that the purported trade secrets were acquired by Favre, Precision or Nicholson by improper means. Therefore, this claim fails. c. Because the underlying claims fail, the conspiracy claim also fails. Pohl sued Kassab for civil conspiracy, alleging he acted in association with others “with the agreed object of misappropriating Pohl’s trade secrets and converting Pohl’s property” and “committed overt acts toward the unlawful misappropriation of Pohl’s trade secrets, which were unlawful and proximately caused damages to Pohl.” 1CR13-14. In response to the motion to dismiss, Pohl did not provide any evidence, but instead relied on the allegations in his petition. 2CR705-706. Regardless, the conspiracy claim fails because the underlying theft of trade secrets and conversion claims fail. See Trammel Crow Co. No. 60 v. Harkinson, 944 S.W.2d 631, 635 (Tex. 1997) (to prevail on a civil conspiracy claim, the plaintiff must show that the defendant was liable for some underlying tort). 48 D. Even if Pohl established a prima facie case, his claims fail as a matter of law because they are barred by the statute of limitations, the attorney immunity doctrine and res judicata. Even if Pohl established a prima facie case for each of his claims, the trial court was required to dismiss his claims against Kassab because Kassab established valid defenses to the claims. See TEX. CIV. PRAC. & REM. CODE § 27.005(d). Kassab asserted three defenses to Pohl’s claims: (1) statute of limitations; (2) attorney immunity; and (3) res judicata. 1CR17. Kassab established each of these defenses by a preponderance of the evidence. 1CR98-103. Therefore, the trial court erred by failing to dismiss Pohl’s claims against Kassab. 1. Pohl’s claims are barred by the statute of limitations. The statute of limitations for conversion is two years from the date the property is allegedly taken. TEX. CIV. PRAC. & REM. CODE § 16.003(a); Burns v. Rochon, 190 S.W.3d 263, 271 (Tex. App. – Houston [1st Dist.] 2006, no pet.). The statute of limitations for civil conspiracy also is two years. Mayes v. Stewart, 316 S.W.3d 715, 719 (Tex. App.—Houston [14th Dist.] 2010, no pet.). The statute of limitations for misappropriation of trade secrets is three years. TEX. CIV. PRAC. & REM. CODE § 16.010(a). Pohl’s claims against Kassab are barred by these statutes of limitations. In the Mississippi Litigation, Pohl asserted, “At a time as yet unknown but believed to have been no later than the summer of 2013, [Precision] joined with 49 [Favre], his business entities and/or affiliates, to convert property belonging to Pohl.” 3SCR195-196. Pohl asserted that Precision “provid[ed] Pohl’s proprietary information and materials to unauthorized third persons and/or co-conspirators and converting Pohl’s property, including original client contracts and client personal claim information, to their own use.” 3SCR194. These are all the same claims that Pohl has made in this lawsuit. When Pohl asserted these claims in the Mississippi Litigation, he admitted that they accrued “no later than the summer of 2013.” Id. In a deposition in one of the barratry lawsuits, Pohl testified that the basis of his alleged claims against Kassab occurred in 2014 when Kassab and his “crew” allegedly “robbed” Pohl by braking into his Gulf Port, Mississippi office and stealing his client files to solicit his clients: A. If the question is did you steal my files and rob my office, the answer is that you and your co-counsel and your crew robbed my office, stole my clients’ names, contacted my clients and told them lies to initiate suits against me.” Q. Okay. How did I steal your files, sir? A. You broke into my law office. Q. I did personally? A. You and your crew. Q. And when did I do that? A. I don’t know the exact date, but I believe it was in 2014 when you robbed me. 50 1CR647. (emphasis added). Pohl testified that although he knew the conduct occurred in 2014, he did not file a civil or criminal case against Kassab or his “crew” because he “wanted to spend time to reflect on it before taking action [and] didn’t want to do anything that was precipitous.” 1CR650-654. When asked why he did not report Kassab’s conduct to any authority or take any action against Kassab, Pohl stated he had been “preoccupied” and simply “neglected to do that.” 1CR654 (emphasis added). “The statute of limitations begins to run when a party has actual knowledge of a wrongful injury.” Exxon Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194, 207 (Tex. 2011). “Once a claimant learns of a wrongful injury, the statute of limitations begins to run even if the claimant does not yet know the specific cause of the injury; the party responsible for it; the full extent of it; or the chances of avoiding it.” Id. (internal quotations omitted) (emphasis added). Pohl admits that he knew of his potential claims against Kassab in 2014, but “neglected” to file suit against Kassab until August 28, 2018. 1CR4-14. Accordingly, all of Pohl’s claims against Kassab were filed more than three years after discovery, and thus, are barred by limitations. See TEX. CIV. PRAC. & REM. CODE § 16.003; Id. at § 16.010. Therefore, it was error for the trial court to refuse to dismiss Pohl’s claims against Kassab. Id. at § 27.005(d). 51 2. Pohl’s claims are barred as a matter of law by the attorney immunity doctrine. Pohl’s claims against Kassab are barred by the attorney immunity doctrine. The Texas Supreme Court has recognized that “attorneys are authorized to practice their profession, to advise their clients and interpose any defense or supposed defense, without making themselves liable for damages.” See Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015) (internal quotations omitted). “This attorney-immunity defense is intended to ensure loyal, faithful, and aggressive representation by attorneys employed as advocates.” Id. (internal quotations omitted). Thus, “attorneys are immune from civil liability to non-clients for actions taken in connection with representing a client in litigation.” Id. (internal quotations omitted). Moreover, “[m]erely labeling an attorney’s conduct ‘fraudulent’ does not and should not remove it from the scope of client representation or render it ‘foreign to the duties of an attorney.’” Id. at 483. Rather, in determining immunity, the inquiry “focuses on the kind of conduct at issue rather than the alleged wrongfulness of said conduct.” Youngkin, 546 S.W.3d at 681. “That is, a lawyer is no more susceptible to liability for a given action merely because it is alleged to be fraudulent or otherwise wrongful.” Id. This is because “an attorney’s conduct may be wrongful but still fall 52 within the scope of client representation” and therefore be subject to attorney immunity. Cantey Hanger, 467 S.W.3d at 483. The recent case Highland Capital Mgmt., LP v. Looper Reed & McGraw, P.C., No. 05-15-00055-CV, 2016 Tex. App. LEXIS 442, 2016 WL 164528 (Tex. App.—Dallas Jan. 14, 2016, pet. denied) (mem. op.) is instructive. There, the plaintiff sued the law firm for the defendant alleging the firm obtained stolen property of the defendant and threatened to disclose this confidential information to extort a settlement. Id. at 2. The plaintiff, Highland, argued that the firm, Looper Reed, engaged in “malicious conduct with respect to its illegal acquisition, retention, use, and threatened disclosure of Highland’s proprietary and confidential information” including: reviewing, copying, and analyzing information it knew to be stolen and proprietary in furtherance of its scheme to extort, slander, and disparage Highland, threatening Highland that it would disclose proprietary information and disparage Highland if a monetary sum was not paid, and refusing to return and cease use of Highland’s proprietary information after receiving written notice of the proprietary and confidential nature of these documents and Highland's demand that the stolen materials be returned. Id. at 10-11. The court of appeals affirmed the trial court’s dismissal of these claims on the pleadings23 based on attorney immunity because the alleged conduct 23 The dismissal was pursuant to Texas Rule of Civil Procedure 91a. 53 fell “squarely within the scope of Looper Reed’s representation” in the lawsuit. Id. at 16. Similar to the plaintiff in Highland Capital, Pohl alleges that Kassab purchased information he knew to be stolen from Precision, Favre and Nicholson, and used this information to solicit Pohl’s “clients to act as plaintiffs … to bring cases against Pohl for alleged barratry and other claims.” 1CR9-10. Pohl’s characterization of this conduct as wrongful is immaterial. See Youngkin, 546 S.W.3d at 682 (“That the plaintiff characterized the firm’s conduct as fraudulent or otherwise wrongful was immaterial to [the court’s] evaluation of the immunity defense.”). Mischaracterizations aside, Pohl alleges that Kassab used stolen information to determine which clients had been illegally solicited to hire Pohl and then brought barratry claims against Pohl on behalf of these clients. See 1CR9-10. To the extent this allegation is the basis of a claim, the claim falls squarely within attorney immunity. See Highland Capital, 2016 Tex. App. LEXIS 442, at 15-16; see also Alpert v. Crain, Caton & James, P.C., 178 S.W.3d 398, 408 (Tex. App.— Houston [1st Dist.] 2005, pet. denied) (holding that a claim against an attorney for conspiracy to defraud was not actionable where “the complained-of actions involve the filing of lawsuits” were “made to facilitate the rendition of legal services to [the client]”). This is true regardless of whether the conduct occurred prior to the actual litigation of these claims. See Cantey Hanger, 467 S.W.3d at 485 (attorney was 54 immune from conduct that occurred after litigation had ended because it was related to the representation). 3. Pohl’s claims are barred by res judicata. Pohl’s claims against Kassab are barred by res judicata. “Res judicata, or claims preclusion, prevents the relitigation of a claim or cause of action that has been finally adjudicated, as well as related matters that, with the use of diligence, should have been litigated in the prior suit.” Barr v. Resolution Tr. Corp., 837 S.W.2d 627, 628 (Tex. 1992). Res judicata is established if the moving party shows “ (1) a prior final determination on the merits by a court of competent jurisdiction; (2) identity of parties or those in privity with them; and (3) a second action based on the same claims as were or could have been raised in the first action.” Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). Kassab demonstrated all elements of this defense by a preponderance of the evidence. Pohl’s claims against Kassab are the same that he filed in the Mississippi Litigation, arise from the same alleged transactions, and are against the same alleged co-conspirators. See 3SCR16-17. Specifically, Pohl sued Precision and other “potential” defendants in the Mississippi Litigation for conversion, alleging, among other claims, that Precision misappropriated his property. See id. During the Mississippi Litigation, Pohl identified Kassab as one of the “potential” defendants in privity with Precision, testifying that the former owners of Precision “purported 55 to sell” Pohl’s allegedly confidential information and trade secrets to Favre who then allegedly “sold those items and the information” to Kassab. 1CR671-672. Therefore, Pohl knew that Kassab was involved in the alleged scheme during the pendency of the Mississippi Litigation, and he could have raised these claims – which occurred in 2013, and which he knew of in 2014 – in the Mississippi Litigation. See id. Nonetheless, Pohl voluntarily paid money to settle his claims against Precision and other parties in the Mississippi Litigation, and the parties dismissed their claims against each other with prejudice. 1CR353-354. Thus, judgment was entered by a court of competent jurisdiction regarding these same claims. See Essman v. Gen. Accident Ins. Co. of America, 961 S.W.2d 572, 574 (Tex. App. – San Antonio 1997, no pet.) (“A judgment of dismissal entered by agreement of the parties in pursuance of a compromise or settlement of a controversy becomes a judgment on the merits.”); Rhoades v. Prudential Leasing Corp., 413 S.W.2d 404, 407 (Tex. Civ. App. – Austin 1967, no writ). Pohl argued to the trial court res judicata did not apply because Kassab was not “a party or privy to a party” in the Mississippi Litigation. 2CR708. However, Kassab, as an alleged co-conspirator, was in sufficient privity with Precision and Favre for res judicata to attach. See Jonalstem, Ltd. v. Corpus Christi Nat'l Bank, N.A., 923 S.W.2d 701, 705 (Tex. App.—Corpus Christi 1996, writ denied) (finding alleged coconspirators in privity with the defendant in a prior action for purposes of 56 res judicata); see also Glatzer v. Skilling, No. 4:16-CV-1449, 2017 U.S. Dist. LEXIS 112782, at 4 (S.D. Tex. Feb. 23, 2017) (concluding that party “should not be allowed to re-litigate his assertions of wrongdoing” by an alleged co-conspirator who was not sued in the original action and finding a “sufficiently close relationship” between the co-conspirators “to be considered ‘identical’ for res judicata purposes”); Chavers v. Hall, 2011 U.S. Dist. LEXIS 63649, 2011 WL 2457943, at 7 (S.D. Tex. June 16, 2011) (finding a “special relationship between alleged co-conspirators [and previously adjudicated co-conspirators] . . . tantamount to an identity of parties sufficient to bar by res judicata”). Therefore, Kassab established his res judicata defense and the trial court erred by not dismissing Pohl’s claims against Kassab. II. The trial court abused its discretion when it declined to grant Kassab’s request for attorney’s fees and sanctions. The TCPA provides that if the court orders dismissal under the statute, “the court shall award the moving party: (1) court costs, reasonable attorney’s fees, and other expenses incurred in defending against the legal action” and “(2) sanctions against the party who brought the legal action as the court determines sufficient to deter the party who brought the legal action from bringing similar actions” in the future. TEX. CIV. PRAC. & REM. CODE § 27.009(a) (emphasis added). Because the trial court erroneously failed to grant Kassab’s motion to dismiss, it also abused its 57 discretion by failing to award Kassab reasonable attorney’s fees and sanctions as required by the TCPA. A. The trial court was required to award Kassab attorney’s fees in defending the dismissed claims, which were established here by the unchallenged evidence. “[T]he TCPA requires an award of reasonable attorneys fees to the successful movant.” Sullivan v. Abraham, 488 S.W.3d 294, 299 (Tex. 2016) (internal quotations omitted) (emphasis added); see also TEX. CIV. PRAC. & REM. CODE § 27.009(a) (providing that the court “shall” award the moving party fees if any claim is dismissed). Therefore, because Pohl’s claims against Kassab should have been dismissed, an award of attorney’s fees to Kassab is mandatory. See Schimmel, 438 S.W.3d at 863 (“because Schimmel has established his entitlement to dismissal under the TCPA, he is entitled to ‘court costs, reasonable attorney’s fees, and other expenses incurred in defending against the legal action”). Kassab submitted evidence establishing that he spent approximately seventy hours reviewing Pohl’s petition, drafting an answer, reviewing the TCPA, researching and drafting the motion to dismiss, the reply to the response to the motion to dismiss, and preparing for and participating in the hearing on the motion. 1CR110-111. Kassab also presented evidence that his associate spent fifteen hours researching, reviewing and editing the motion to dismiss. 1CR111. Kassab testified that, based on his knowledge, education and experience, as well as the relevant 58 factors governing attorney’s fees, a reasonable fee for his services is $450 per hour and a reasonable fee for his associate’s services is $250 per hour. Id. Therefore, Kassab presented evidence to support a reasonable attorney fee award of $36,750 for work performed in the trial court. See id. This evidence of attorney’s fees went unchallenged by Pohl. 1CR708-710, 850-852. In fact, the requested amount is reasonable given that Pohl’s counsel requested a similar amount ($33,352) in attorney’s fees for defending against the motion to dismiss. 1CR850-852. In addition, Kassab requested that the trial court award him conditional appellate attorney’s fees. 1CR104. “If trial attorney’s fees are mandatory under [the statute], then appellate attorney’s fees are also mandatory when proof of reasonable fees is presented.” Ventling v. Johnson, 466 S.W.3d 143, 154 (Tex. 2015). Because the TCPA mandates an award of reasonable attorney’s fees, the trial court does not have discretion to disallow an award when proof of reasonable appellate attorney’s fees is presented. See Urquhart v. Calkins, No. 01-17-00256-CV, 2018 Tex. App. LEXIS 5145, 2018 WL 3352919, at 11-12 (Tex. App.—Houston [1st Dist.] July 10, 2018, no pet. h.) (mem. op.). Kassab testified about his appellate qualifications, including the fact that he has prosecuted numerous appeals in Texas and his experience as a briefing attorney for this Court and an intern for the Texas Supreme Court. 1CR111. Based on his qualifications, knowledge and experience, Kassab testified that a reasonable 59 attorney’s fee for an appeal to this Court is $45,000; a reasonable fee for responding to and/or briefing regarding a motion for rehearing in this Court, if such is necessary, is $5,000; a reasonable fee for filing a petition or response in the Texas Supreme Court is $10,000; if the Texas Supreme Court requests briefing on the merits, a reasonable attorney’s fee is $25,000; and a reasonable attorney’s fee for a motion for rehearing at the Texas Supreme Court is $5,000.00. Id. Again, this testimony was uncontroverted by Pohl. 1CR708-710, 850-852. Because this evidence establishes that the attorney’s fees requested by Kassab are reasonable, and because this evidence was uncontroverted, the Court should direct the trial court to not only dismiss Pohl’s claims against Kassab, but award Kassab $36,750 in attorney’s fees incurred at the trial level and $45,000 in attorney’s fees incurred in this Court. B. The trial court was mandated to award Kassab sanctions against Pohl in an amount sufficient to achieve the deterrent effect the statute requires. The trial court also abused its discretion by declining to assess sanctions against Pohl. The TCPA provides that if a court orders dismissal, the court “shall” award to the moving party “sanctions against the party who brought the legal action as the court determines sufficient to deter the party who brought the legal action from bringing similar actions” in the future. TEX. CIV. PRAC. & REM. CODE § 27.009(a)(2). This Court recently recognized that an “award of sanctions to 60 successful TCPA movant is mandatory.” Urquhart, 2018 Tex. App. LEXIS 5145, at 14 (emphasis added). Although the Texas Supreme Court has not specifically addressed the issue of whether sanctions under the TCPA are mandatory, the court noted without disapproval the appellate court’s determination that the TCPA “made an award of sanctions mandatory.” Sullivan, 488 S.W.3d at 299. Given the clear language of the TCPA and the case law interpreting the statute, the trial court abused its discretion when it failed to assess sanctions against Pohl. See Serafine v. Blunt, No. 03-16-00131-CV, 2017 Tex. App. LEXIS 4606, 2017 WL 2224528, at *23-24 (Tex. App.—Austin May 19, 2017, pet. denied) (mem. op.) (“In light of the mandatory nature of a sanctions award under the TCPA, we hold that the trial court abused its discretion in failing to award Serafine some amount of sanctions deemed appropriate to achieve the deterrent effect the statute requires.”). Therefore, the case should be remanded to the trial court to determine the amount of the sanctions award. See id. (“Accordingly, we remand this cause to the trial court for a determination of the amount of sanctions to be awarded to Serafine under section 27.009 of the TCPA.”). CONCLUSION & PRAYER For all these reasons, this Court should reverse the trial court’s failure to grant Kassab’s motion to dismiss and order the trial court to (1) dismiss Pohl’s claims against Kassab with prejudice; (2) award Kassab $81,750 in attorney’s fees incurred 61 so far; and (3) assess the appropriate sanctions against Pohl to achieve the deterrent effect the statute requires. The issue of sanctions should be remanded to the trial court for consideration. Respectfully submitted, ALEXANDER DUBOSE & JEFFERSON LLP /s/ Kevin Dubose Kevin Dubose State Bar No. 06150500 kdubose@adjtlaw.com 1844 Harvard Street Houston, Texas 77008 Telephone: (713) 523-2358 Facsimile: (713) 523-4553 THE KASSAB LAW FIRM / s / Lance Christopher Kassab Lance Christopher Kassab State Bar No. 00794070 lance@kassab.law David Eric Kassab State Bar No. 24071351 david@kassab.law 1214 Elgin Street Houston, Texas 77004 Telephone: (713) 522-7400 Facsimile: (713) 522-7410 Attorneys for Appellants Lance Christopher Kassab and Lance Christopher Kassab, PC d/b/a The Kassab Law Firm 62 CERTIFICATE OF COMPLIANCE Based on a word count run in Microsoft Word, this brief contains 13,993 words (excluding the items exempted under Texas Rule of Appellate Procedure 9.4(i)(1)). / s / David Eric Kassab David Eric Kassab CERTIFICATE OF SERVICE I certify that on April 24, 2019, I electronically filed this brief with the Clerk of the Court using the eFile.TXCourts.gov electronic filing system which will send notification of such filing to all counsel of record. / s / David Eric Kassab David Eric Kassab 63 APPENDIX Tab Item 1. Plaintiffs’ Original Petition. 64 10 11 12 13 14