orders: 9
Data license: Public court records
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| 9 | 2019-04-25 | 2019-04-25 BRF Favre-Appellants-Brief-TCPA-Appeal FILED | appellate | 2019-04-25_BRF_Favre-Appellants-Brief-TCPA-Appeal_FILED.pdf | Kassab v. Michael A. Pohl & Law Office of Michael A. Pohl CASE NO. 01-18-01143-CV COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON April 25, 2019 Reporter 2019 TX APP. CT. BRIEFS LEXIS 10777 * Lance Christopher Kassab, Lance Christopher Kassab, P.C. D/B/A The Kasab Law Firm, Scott Favre, Scott M. Favre Public Adjuster, LLC And Precision Marketing Group, LLC, Appellants v. Michael A. Pohl And Law Office of Michael A. Pohl, PLLC, Appellees Type: Brief Prior History: On Appeal from the 189th District Court of Harris County, Texas Cause No. 2018-58419. Counsel Todd Taylor, SBN 00785087, Jocelyn A. Holland, SBN 24059965, JOHANSON &FAIRLESS, LLP, Sugar Land, TX, ATTORNEYS FOR APPELLANTS SCOTT FAVRE, SCOTT M. FAVRE PUBLIC ADJUSTER, LLC AND PRECISION MARKETING GROUP, LLC. Appellants/Defendants: Lance Christopher Kassab, Lance Christopher Kassab, P.C. D/B/A The Kasab Law Firm, Trial & Appellate Counsel: Lance Christopher Kassab, SBN 00794070, David Eric Kassab, SBN 24071351, THE KASSAB LAW FIRM, Houston, Texas. Appellants/Defendants: Tina Nicholson and Baker Nicholson, LLP d/b/a Baker Nicholson Law Firm, Trial & Appellate Counsel: Jessica Z. Barger, SBN 24032706, E. Marie Jamison, SBN 24044647, WRIGHT CLOSE & BARGER, LLP, Houston, Texas And Chris C. Pappas, SBN 15454300, Andrew J. Sarne, SBN 00797380, Kimberly C. Clark, SBN 24066435, KANE RUSSELL COLEMAN LOGAN PC, Houston, Texas. Appellees/Plaintiffs Michael A. Pohl And Law Office Of Michael A. Pohl, PLLC, Trial & Appellate Counsel: Jean C. Frizzell, SBN. 07484650, REYNOLDS FRIZZELL LLP, Houston, Texas. Title APPELLANTS' BRIEF Text IDENTITY OF PARTIES AND COUNSEL [*1] Page 2 of 21 2019 TX APP. CT. BRIEFS LEXIS 10777, *1 Appellants/Defendants: Scott Favre, Scott M. Favre Public Adjuster, LLC And Precision Marketing Group, LLC Trial & Appellate Counsel: Todd Taylor, SBN 00785087 Jocelyn A. Holland, SBN 24059965 JOHANSON & FAIRLESS, LLP 1456 First Colony Blvd. Sugar Land, TX 77479 Appellants/Defendants: Lance Christopher Kassab, Lance Christopher Kassab, P.C. D/B/A The Kasab Law Firm Trial & Appellate Counsel: Lance Christopher Kassab, SBN 00794070 David Eric Kassab, SBN 24071351 THE KASSAB LAW FIRM 1214 Elgin Street Houston, Texas 77004 Appellants/Defendants: Tina Nicholson and Baker Nicholson, LLP d/b/a Baker Nicholson Law Firm Trial & Appellate Counsel: Jessica Z. Barger, SBN 24032706 E. Marie Jamison, SBN 24044647 WRIGHT CLOSE & BARGER, LLP One Riverway, Suite 2200 Houston, Texas 77056 And Chris C. Pappas, SBN 15454300 Andrew J. Sarne, SBN 00797380 Kimberly C. Clark, SBN 24066435 KANE RUSSELL COLEMAN LOGAN PC 5051 Westheimer Road, Suite 1000 Houston, Texas 77056 Appellees/Plaintiffs Michael A. Pohl And Law Office Of Page 3 of 21 2019 TX APP. CT. BRIEFS LEXIS 10777, *1 Michael A. Pohl, PLLC Jean C. Frizzell, SBN. 07484650 [*2] Trial & Appellate Counsel: REYNOLDS FRIZZELL LLP 1100 Louisiana St., Suite 3500 Houston, Texas 77002 STATEMENT OF THE CASE Nature of the Case : This is an interlocutory appeal from the denial of a Motion to Dismiss pursuant to Chapter 27.001 et al of the Texas Civil Practice & Remedies Code. Appellees, Michael A. Pohl and the Law Office Of Michael A. Pohl, PLLC ("Pohl") hired Appellant Precision Marketing Group, LLC ("Precision") to illegally solicit clients who had claims arising from the Deepwater Horizon Oil Spill and other personal injuries. Pohl filed the instant lawsuit in retaliation after several of Pohl's former clients retained Appellants Lance Christopher Kassab, and Lance Christopher Kassab, P.C. D/B/A The Kassab Law Firm ("Kassab") to represent them in bringing claims against Pohl for barratry. Trial Court : Cause No. 2018-58419, 189th District Court of Galveston County, Texas, Honorable Scott Dollinger, presiding. Trial Court Disposition : Appellants Scott Favre, Scott M. Favre Public Adjuster, LLC and Precision Marketing Group, LLC moved to dismiss under Chapter 27 of the Texas Civil Practice & Remedies Code. 3 CR 136. The trial court denied the motion after a hearing, and Appellants [*3] timely sought interlocutory review of that order. App. E, F; SUPP CR 1 STATEMENT OF JURISDICTION This court has jurisdiction over this appeal because it is an interlocutory appeal permitted under Texas Civil Practice & Remedies Code sections 27.008(b) and 51.014(12). STATEMENT REGARDING ORAL ARGUMENT This Court should grant oral argument as it would assist the Court in resolving the issues presented by this appeal. This background facts involve multiple parties, many of which are not part of the instant lawsuit, as well as proceedings in other jurisdictions. In addition, given the recent increase in litigation under the Texas Citizens Participation Act, oral argument will aid the Court in rendering a judgment and opinion that will guide future claims under this statute. ISSUES PRESENTED 1 Appellants have asked the district clerk to supplement the record with the documents contained in the Appendix. Page 4 of 21 2019 TX APP. CT. BRIEFS LEXIS 10777, *3 I. Did the Trial Court Err in Denying the Favre Appellants' Motion to Dismiss Pursuant to Chapter 27 of the Texas Civil Practice & Remedies Code when: A. The Favre Appellants Carried their Burden of Proof by Showing that Pohl's Claims Are Related to the Favre [*4] Appellants Exercise of their Protected Rights; B. Pohl Failed to Carry His Burden of Establishing by Clear and Specific Evidence a Prima Facie Case for Each Essential Element of His Causes of Action; C. Pohl Failed to Establish that the Commercial Speech Exemption Applies; and D. The Favre Appellants Established that Pohl's Claims Are Barred by Limitations? STATEMENT OF FACTS Appellee Michael A. Pohl ("Pohl") filed the instant lawsuit in retaliation to being sued by hundreds of his former clients for committing barratry. A. Pohl Contracts with the Founders of Precision Marketing Group to Engage in Barratry. The story in this case begins in 2012, when Appellee Michael A. Pohl ("Pohl") entered a joint venture ("the Joint Venture") with Jimmy Williamson ("Williamson"). 2 The purpose of the Joint Venture was to find, sign up, and represent persons with claims pertaining to the BP Deepwater Horizon Oil Spill. 1 CR 120-21. Pohl, through the Joint Venture, contracted with Scott Walker, Steve Seymour, and Kirk Ladner to retain [*5] clients with economic loss claims arising from the BP Deepwater Horizon Oil Spill, as well as automobile accidents and other personal injury claims. 1 CR 122, 127, 130-34. The Joint Venture promised to pay Walker, Seymour and Ladner a percentage of the attorney's fees generated by the clients they signed up. 1 CR 123, 126, 128-29, 134. Walker, Seymour and Ladner eventually formed Appellant Precision Marketing Group, LLC ("Precision") to solicit clients for the Pohl and Williamson. 1 CR 132-42. Walker, Seymour and Ladner's solicitation involved blatant barratry. 1 CR 178 (p.149:6-11). Walker testified that he, Ladner, or someone working for them would go to the victims of the auto accident to "do marketing" by letting them know "there were attorneys [who] could help." 1 CR 185. In exchange, these runners- whoever visited the victims-were paid between $ 2,500 and $ 5,000 to solicit each client. 1 CR 192-193. These payments flowed from Pohl through his wife's wholly owned company, "Helping Hands Financing," to Precision, to each individual runner. 1 CR 194-201. Walker would simply submit to Pohl the amount that Precision had paid its runners and Pohl would reimburse Precision. 1 CR 202. One of the runners, Magdalena Santana ("Santana"), testified that Pohl sent her on "dozens [*6] and dozens of car wreck cases all over the country." 1 CR 208. Pohl would email Santana the link of news coverage depicting the accident and ask her "to go to the victim or the victim's family and try to get them to sign up with him." Id. Pohl offered to pay Santana "$ 5,000 2 Pohl and Williamson filed motions to dismiss in the Mississippi Litigation on grounds that they did not form a joint venture. 1 CR 310-11. The trial court denied those motions. 1 CR 311-13. Page 5 of 21 2019 TX APP. CT. BRIEFS LEXIS 10777, *6 per case that [she] signed, plus a percentage of his attorney's fees." 1 CR 209. Santana was advised by Pohl to "be persistent even if the family ... rejected [her]." Id. Pohl also instructed Santana to "approach the victims and their families while they were vulnerable, in the emergency room, their hospital rooms or at the funerals." Id. Pohl further advised Santana that minorities "were especially vulnerable since they tended not to know that the law prohibited barratry." Id. According to Pohl, they "were easier to sign up." Id. Pohl would pay Santana "money to give to the victims or their families" but "only if they agreed to sign a Pohl representation contract." 1 CR 208. Pohl advised Santana that the money was a "foot in the door" but instructed Santana not to mention that she was there on behalf of a lawyer "until after they agreed to take the money." 1 CR 210-11. "If the client agreed to hire [*7] Pohl, then [Santana] was to have the client sign a 'Helping Hands' contract." Id. Pohl would then give Santana the money to pay the client "from his own Helping Hands company." Id. When Santana questioned this, Pohl told Santana that it "was illegal for him to pay [her] directly for cases, and that's why the money had to go through some company." 1 CR 210. This is false; it was illegal either way. See Tex. Pen. Code § 38.12. Another runner, Kenneth Talley ("Talley") similarly testified to receiving a $ 1,400 fee plus expenses for each automobile accident case he solicited. 1 CR 28-88. He was paid by Pohl, through Walker and Precision. Id. Talley testified that both he and Pohl knew what they were doing was illegal. 1 CR 93-94. In December 2013, the Pohl and Williamson decided to terminate their marketing efforts, and they instructed Walker, Seymour and Ladner to close up the Precision office. 1 CR 147. By that point, Precision had signed up more than 10,000 viable claims for the Pohl/Williamson Joint Venture that were collectively worth more than $ 600 million. 1 CR 147. B. Walker, Seymour, Ladner and Precision File Suit Against Pohl in Mississippi Federal Court for [*8] Unpaid Fees. Pohl never paid Walker, Seymour or Ladner their share of the attorney's fees for the clients they signed up, and on October 18, 2014, Walker, Seymour and Ladner, doing business as Precision, sued Pohl and Williamson in the Southern District of Mississippi, Cause No. 14-cv- 381-KS-JCG, styled Scott Walker, et al. v. Michael A. Pohl, et al. (the "Mississippi Litigation"). 1 CR 78, 153. Appellant Tina Nicholson of Baker Nicholson, LLP represented Precision (and later Scott Favre as well) in that lawsuit. Walker, Seymour, Ladner, and Precision claimed that they had conducted marketing efforts to obtain personal injury clients for Pohl, that Pohl had received attorney's fees from the clients they signed up, and that Pohl had refused to pay them the agreed share of his fees. 1 CR 78, 156-64. On May 15, 2015, after the Mississippi Litigation had been pending for several months, Walker, Seymour and Ladner received a letter from Pohl claiming that Precision was in possession of "original contracts and copies of original contracts" between Pohl and his BP clients, and that belonged to Pohl. 3 CR 152. Precision asserted its ownership of the information refused to provide the turnover to the contracts, and Pohl did [*9] not follow up on this claim for another year. 3 CR 137. Page 6 of 21 2019 TX APP. CT. BRIEFS LEXIS 10777, *9 In May 2016, Appellant Scott Favre ("Favre") acquired Precision. 1 CR 640. Precision warranted to Favre that the marketing lists Precision had developed belonged to Precision. 1 CR 641. That same month, Pohl filed an Amended Answer in the Mississippi Litigation, alleging that Precision was in possession of confidential and propriety information that belonged to Pohl, and that Precision had "joined a conspiracy with Scott Favre, his business entities and/or affiliates to convert property belonging to Pohl . . ." 3 CR 195-96. The Mississippi Litigation settled in April 2017, and all claims were dismissed. 1 CR 353-54. C. Pohl Is Sued for Barratry and Retaliates by Filing the Instant Suit Against Precision and Favre. Kassab, representing several hundred of Pohl's former clients, began filing lawsuits against Pohl for barratry, and Pohl retaliated by filing the instant lawsuit. Pohl alleged that Favre, as the manager/ owner of Precision and "working through" Scott M. Favre PA, LLC, with the assistance of attorney Appellant Tina Nicholson ("Nicholson"), had misappropriated Pohl's marketing lists. 1 CR 4-9, 2 CR 894. Pohl alleged that these Appellants then sold [*10] the information to Kassab and Montague, who used the lists to inform potential clients of their right to sue Pohl for his violation of the barratry laws. 1 CR 4-9, 2 CR 894. Pohl claimed that these actions breached the parties' settlement agreement in the Mississippi Litigation. 1 CR 12-13. He also pleaded claims of conversion, violation of the Texas Uniform Trade Secrets Act ("TUTSA"), and civil conspiracy against Favre, Scott M. Favre PA, LLC, and Precision (collectively "the Favre Appellants"). 1 CR 12-13. The Favre Appellants filed a Motion to Dismiss, which the trial court considered at the December 3, 2018 hearing. 2 RR 34-39. The trial court ultimately denied the motion and the Favre Appellants timely filed this appeal. 3 App. E, F. SUMMARY OF ARGUMENT The trial court erred in denying [*11] the Favre Appellants' Motion to Dismiss because Pohl's conversion, TUTSA violations, and civil conspiracy claims are based on, relate to, or were made in response to protected communications by the Favre Appellants in the exercise of their right of free speech and right of association. Because the Favre Appellants established that the TCPA applies to Pohl's conversion, TUTSA violations, and civil conspiracy claims, the burden shifted to Pohl to establish a prima facie case for each element of these causes of action by clear and specific evidence. Pohl failed to carry this burden. He failed to establish a prima facie case of ownership of the alleged trade secrets and confidential information. Instead, the evidence established that Precision had at all times owned and possessed the client lists and other information. Pohl 3 The Favre Appellants are foreign Defendants and residents of Mississippi. Due to difficulties with service and with retaining counsel, their Motion to Dismiss was inadvertently filed three days late. App. B, D. However, the trial court granted the Favre Appellants' Motion for Leave to file their Motion to Dismiss and found that the motion was timely filed pursuant to the court's authority under section 27.003. App. E. Page 7 of 21 2019 TX APP. CT. BRIEFS LEXIS 10777, *11 similarly failed to establish that the allegedly confidential information deserved trade secret protection or that he had taken steps to maintain its confidentiality. And, he failed to demonstrate any injury from the alleged disclosure of this information to Kassab and Defendants Douglas F. Montague III and the firm of Montague Pittman & Varnado, P.A. (collectively [*12] "Montague"). Pohl also failed to show that the commercial speech exemption to the TCPA applied to Favre or Scott M. Favre Public Adjusting LLC. The commercial speech exemption applies only to communications that a defendant who is primarily engaged in the business of selling or leasing goods or services, makes in the defendant's capacity "as a seller or lessor of those goods or services." Favre and his adjusting firm are public adjusters; they are in the business of adjusting real and personal property insurance claims. Pohl's causes of action Favre and his firm have nothing to do with their adjusting services. Rather, those claims are based on the alleged transfer of trade secret information to Kassab and Montague. Pohl's failure to carry his burden to demonstrate a prima facie case for each element of his conversion, TUTSA violations, and civil conspiracy claims, and his failure to show that the commercial speech exemption applies to those claims, entitled the Favre Appellants to dismissal of these causes of action. Finally, even if Pohl did carry his burden of proof-and he did not-the Favre Appellants [*13] carried their burden of proving that Pohl's claims for conversion, TUTSA violations, and civil conspiracy were barred by limitations. The trial court therefore erred in denying the Favre Appellants' Motion to Dismiss. ARGUMENT I. THE TRIAL COURT ERRED BY FAILING TO GRANT THE FAVRE APPELLANTS' MOTION TO DISMISS. Pohl's claims against The Favre Appellants should be dismissed because (a) they are based on, relate to, and are in response to these Appellants' exercise of their right of association, right of free speech, and right to petition; (b) Pohl cannot establish a prima facie case for essential element of his claims or that an exemption to the TCPA applies; and (c) the Favre Appellant established that Pohl's claims for conversion, TUTSA violations, and civil conspiracy are barred by limitations. A. Standard of Review. The TCPA "protects citizens who petition or speak on matters of public concern from retaliatory lawsuits that seek to intimidate or silence them." In re Lipsky, 460 S.W.3d 579, 584 (Tex. 2015) (orig. proceeding). It does that through a motion to dismiss for "any suit that appears to stifle the defendant's" exercise of those rights. Id. Reviewing a TCPA motion to dismiss requires [*14] a three-step analysis: 4 The Montague Defendants filed a Special Appearance in the trial court. Page 8 of 21 2019 TX APP. CT. BRIEFS LEXIS 10777, *14 (1) The moving party must show that the action against it is based on the exercise of the rights as defined in the TCPA. See TEX. CIV. PRAC. & REM. CODE Ann. § 27.005(b). (2) If the movant meets its burden, the nonmoving party must establish a prima facie case for each element of its claim, Id. § 27.005(c), or that one of several exemptions to the TCPA apply, such as the commercial speech exemption. See id. § 27.010(b). (3) If the nonmoving party satisfies that requirement, the burden shifts back to the movant to prove each element of a defense. Id. § 27.005(d). See also Youngkin v. Hines, 546 S.W.3d 675, 679-80 (Tex. 2018). If dismissal is appropriate, the trial court must award the moving party "court costs, reasonable attorney's fees, and other expenses incurred in defending against the legal action" as well as sanctions "sufficient to deter the party who brought the legal action from bringing similar actions[.]" Id. at § 27.009(a). This Court must conduct a de novo review of the trial court's determinations that the parties met or failed to meet their burdens of proof under the TCPA. See Gaskamp v. WSP USA, Inc., No. 01-18-00079-CV, 2018 Tex. App. LEXIS 10643, at *26 (Tex. App.-Houston [1st Dist] Dec. 20, 2018, no pet. h.); Better Bus. Bureau of Metro. Hous., Inc. v. John Moore [*15] Servs., Inc., 441 S.W.3d 345, 353 (Tex. App.- Houston [1st Dist] 2013, pet. denied). The Court must consider the pleadings and evidence on which the liability or defense is based to determine whether the statute is implicated. See TEX. CIV. PRAC. & REM. CODE Ann. § 27.006(a). To the extent resolution of this appeal turns on construction of the TCPA, the Court must also review these issues de novo. Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015). Since it is well established that a lawsuit constitutes a "legal action" under the TCPA, see TEX. CIV. PRAC. & REM. CODE Ann. § 27.001(6), the analysis in this case begins with whether the Favre Appellants met their burden of demonstrating by a preponderance of the evidence that Pohl's claims are factually predicated on conduct that falls within protected communications that were made in connection with Appellants exercising their right of association, right of free speech, and right to petition. B. Pohl's Claims Should Be Dismissed Because They Are Based On, Relate To, or Are in Response to, the Favre Appellants' Exercise of Their Protected Rights. 1. The Favre Appellants' Alleged Disclosures of Trade Secret Confidential and Information Qualify as "Communications" under the TCPA. The term "communication"-a component of all [*16] three forms of protected conduct under the TCPA-is defined as "the making or submitting of a statement or document in any form or medium, including oral, visual, written, audiovisual, or electronic." TEX. CIV. PRAC. & REM. CODE Ann. § 27.001(1). Pohl alleges that the Favre Appellants used and disclosed to Kassab and Montague "trade secret and other confidential information" belonging to Pohl-i.e., the names of the clients whom Precision had solicited for Pohl, fee agreements, and other documents. 1 CR 4-6. These alleged disclosures qualify as "communications" under the TCPA regardless of Pohl's assertion that they included his alleged trade secrets, because the substance of a Page 9 of 21 2019 TX APP. CT. BRIEFS LEXIS 10777, *16 communication does not remove it from the purview of the TCPA. For example, in Elite Auto Body, the Court held that the alleged disclosure of trade secrets and other confidential information qualified as "communications" under the TCPA. See Elite Auto Body LLC v. Autocraft Bodywerks, Inc., 520 S.W.3d 191, 193 (Tex. App.-Austin 2017, pet. dism'd). The Elite Auto Body Court explained that the TCPA is not limited to the protections afforded "free speech" under the First Amendment. Id. at 204. Rather, it is much broader and covers all communications that fall within the TCPA's broad definition of "communication." Id. Elite Auto Body is directly on point. 520 S.W.3d at 193. The plaintiff, [*17] an auto repair shop, sued its rival repair shop for civil conspiracy and TUTSA violations, alleging that its former employees had wrongfully misappropriated and used its trade secrets when the former employees joined the rival shop. Id. at 194-95. Because the plaintiff alleged that these "communications" were made in furtherance of the rival shop's business relative to the plaintiff's competitive position, the Court held that the communications were made to "promote, pursue, or defend common interests," the plaintiff's legal action related to the defendants' exercise of their right of association and the communications were protected. Id. at 204-05. Whether the communications included confidential and proprietary information did not remove them from the TCPA. Rather, this was part of the plaintiff's burden of establishing a prima facie case for each element of its claims. Id. at 206 ("proof of the trade-secret or protected status of the information is relevant to and is properly addressed in this 'second part' of the TCPA burden-shifting analysis."). Thus, contrary to what Pohl argued in his Response to the trial court, the fact that the alleged communications between the [*18] Favre Appellants, Nicholson, Kassab and Montague contained alleged trade secrets does not negate the TCPA's application. See id.; see also Rauhauser v. McGibney, 508 S.W.3d 377, 384 and n.4 (Tex. App.-Fort Worth 2014, no pet.) (alleged "terroristic threats" and "cyber-stalking" were "communications" under TCPA). 2. The Favre Appellants Made the Communications at Issue While Exercising Their Protected Rights. a. The Communications Are Protected under the Favre Appellants' Exercise of Their Right of Association. The "exercise of the right of association" is "a communication between individuals who join together to collectively express, promote, pursue, or defend common interests." TEX. CIV. PRAC. & REM. CODE Ann. § 27.001(2). According to Pohl's own pleadings, the Favre Appellants engaged in the communications at issue for the purpose of joining together with Kassab and Montague to pursue a common, shared business interest-locating and advising Pohl's former clients that they had a cause of action against Pohl for barratry. 2 CR 891 (alleging that Defendants joined together to misappropriate Pohl's trade secrets and to use this property "for their own gain"); 2 CR 895 (claiming Favre and Nicholson "sold Pohl's stolen confidential information" [*19] to Kassab and Montague); 2 CR 896-98 (alleging that as a result of this sale, Nicholson and Kassab have successfully solicited Pohl's former clients to bring barratry claims against Pohl). Page 10 of 21 2019 TX APP. CT. BRIEFS LEXIS 10777, *19 The Favre Appellants were therefore exercising their right to association when they disclosed the information to Kassab and Montague and the communications at issue are protected under the TCPA. See Elite Auto Body, 520 S.W.3d at 205 (communications that allegedly shared or used the plaintiff's information fell within the scope of the TCPA, because the communications were made "in furtherance of the [defendant's] business enterprise relative to [plaintiff's] competitive position" and were an "exercise of the right of association."). b. The Communications Are Protected under the Favre Appellants' Exercise of Their Right to Free Speech. The communications at issue were also made pursuant to the Favre Appellant's exercise of their right to free speech. The TCPA broadly defines the "exercise of the right of free speech" as "a communication made in connection with a matter of public concern." TEX. CIV. PRAC. & REM. CODE Ann. § 27.001(3). A "'matter of public concern' includes" but is not limited [*20] to "an issue related to: (A) health or safety; (B) environmental, economic, or community well-being; (C) the government; (D) a public official or public figure; or (E) a good, product, or service in the marketplace." Id. § 27.001(7). In construing the "exercise of the right of free speech" under the TCPA, the Texas Supreme Court has squarely rejected the notion that the TCPA is limited to speech exercised in a public forum about purely public matters. See Lippincott, 462 S.W.3d at 509-10 (holding that TCPA applied to allegedly defamatory statements made in private e-mails about an employee nurse anesthetist). The Court held in ExxonMobil Pipeline Company v. Coleman that: The TCPA does not require that the statements specifically "mention" [the statutorily identified matter of public concern], nor does it require more than a "tangential relationship" to the same; rather, TCPA applicability requires only that the defendant's statements are "in connection with" "issue[s] related to" health, safety, environmental, economic, and other identified matters of public concern chosen by the Legislature. 512 S.W.3d 895, 900 (Tex. 2017). Here, by sharing client lists with Kassab [*21] and Montague, along with information concerning Pohl's legal services and how he acquired his clients, the Favre Appellants made statements regarding both a matter of public concern, and a service provided in the community. TEX. CIV. PRAC. & REM. CODE Ann. § 23.001(7)(B), (E). Texas courts have held that a lawyer's representation of his client(s), and the practice of law, constitute matters of public concern. In Daver v. Desai, the court held that a lawyer's ability to represent clients was a "matter[] of public concern" under the TCPA. See Deaver v. Desai, 483 S.W.3d 668, 673 (Tex. App.-Houston [14th Dist.] 2015, no pet.). In Avila v. Larrea, the court held that a communication about a lawyer's handling of cases was a matter of public concern within the TCPA. See Avila v. Larrea, 394 S.W.3d 646, 655 (Tex. App.-Dallas 2012, pet. denied). In Trevino v. Cantu, the court concluded that the communications were "undoubtedly" matters of public concern because they concerned the practice of law, cases filed in the judicial system, and disciplinary proceedings brought in Texas against a lawyer licensed by the Texas Supreme Court. See Trevino v. Cantu, No. 13-16-00109-CV, 2017 Tex. App. LEXIS 886, at *8- Page 11 of 21 2019 TX APP. CT. BRIEFS LEXIS 10777, *21 9 (Tex. App.-Corpus Christi Feb. 2, 2017, no pet.). And in Bacharach v. Doe, the court held that an abuse of one's position as an attorney "may be considered a matter of public concern under the TCPA." [*22] Bacharach v. Doe, No. 14-14-00947-CV, 2016 WL 269958, at *3 (Tex. App.- Houston [14th Dist.] Jan. 21, 2016, no pet.). The Favre Appellants' communications concerned Pohl's representation of his former clients, Pohl's abuse of his position as an attorney, and Kassab and Montague's potential representation of those clients for claims of barratry against Pohl. Under the above case law, these constitute matters of public concern. Moreover, Pohl has brought a civil conspiracy claim against the Favre Appellants, and numerous courts have found that the right of association under the TCPA is implicated by civil conspiracy allegations. See Elite Auto, 520 S.W.3d at 206 (acknowledging that conspiracy claim fell under TCPA's right of association); Craig v. Tejas Promotions, LLC, 550 S.W.3d 287, 295-96 (Tex. App.-Austin 2018, pet. filed) (same); Backes v. Misko, 486 S.W.3d 7, 20 (Tex. App.-Dallas 2015, pet. denied) (same); see also MVS Int'l Corp. v. Int'l Advert. Sols., LLC, 545 S.W.3d 180, 194 (Tex. App.-El Paso 2017, no pet.) (explaining that as statute is written, conspiracy claims would fall under TCPA's right of association). The communications at issue are therefore protected communications pursuant to the Favre Appellants' exercise of their right of free speech. 3. Pohl's Claims Relate to, or Were Brought in Response to, the Favre Appellants' Protected Communications. In addition establishing that the alleged disclosures were protected [*23] communications under the TCPA, the Favre Appellants also demonstrated that Pohl's "legal action is based on, relates to, or is in response to" these protected communications. See TEX. CIV. PRAC. & REM CODE ANN. § 27.005(b). The phrase "based on, relates to, or is in response to" dictates the nexus that must exist between the "legal action" and the protected conduct under the TCPA. Grant v. Pivot Tech. Sols., Inc., 556 S.W.3d 865, 879 (Tex. App.-Austin 2018, pet. filed). Although not further defined in the Act, the phrase serves to capture, at a minimum, a "legal action" that is factually predicated on the alleged conduct that falls within the scope of TCPA's definition of "exercise of the right of free speech," petition, or association. See Cavin v. Abbott, 545 S.W.3d 47, 59 (Tex. App.-Austin 2017, no pet.). The Texas Supreme Court has rejected the assertion that the plain language of the phrase-which includes no qualification as to its limits- requires something more than a tenuous or remote relationship. See ExxonMobil, 512 S.W.3d at 901. Instead, based on the ordinary meaning of the terms, a plaintiff's claims are "related" to a protected communication when there is "some sort of connection, reference, or relationship between them," and are "in response to" a protected communication [*24] when they "react[] to or [are] asserted subsequently to" the communication. See Cavin, 545 S.W.3d at 69. Pohl's claims for conversion, TUTSA violations, and civil conspiracy relate to and were brought in response to the Favre Appellants' protected communications. But for Pohl's allegation that the Favre Appellants shared and used the names of Pohl's prior clients and other documents with Kassab and Montague, these causes of action against the Favre Appellants would not exist. Page 12 of 21 2019 TX APP. CT. BRIEFS LEXIS 10777, *24 Moreover, Pohl filed this lawsuit after Kassab had filed four lawsuits against Pohl on behalf of over 400 of Pohl's former clients, alleging claims of barratry. 1 CR 75. Pohl clearly intended this lawsuit to harass and intimidate Appellants for the four lawsuits against him. Pohl's claims were therefore filed as a "reaction" to, and subsequent to," the protected communications. See Cavin, 545 S.W.3d at 69-70. C. Pohl's Claims Should Be Dismissed Because He Failed to Establish a Prima Facie Case for Each Essential Element of His Causes of Action for Conversion, TUTSA Violations, and Civil Conspiracy. Once the Favre Appellants demonstrated that Pohl's conversion, TUTSA violations, and civil conspiracy [*25] claims relate to or were brought in response to protected communications, the burden shifted to Pohl to establish by "clear and specific evidence" a prima facie case for each essential element of these claims. See TEX. CIV. PRAC. & REM. CODE Ann. § 27.005(c). The TCPA does not define "clear and specific evidence," but the Texas Supreme Court has held that the standard requires more than mere notice pleadings and that the plaintiff "must provide enough detail to show the factual basis for its claim." D Magazine Partners, L.P. v. Rosenthal, 529 S.W.3d 429, 434 (Tex. 2017); In re Lipsky, 460 S.W.3d at 591. A "prima facie case" refers to evidence sufficient as a matter of law to establish a given fact if it is not rebutted or contradicted. In re Lipsky, 460 S.W.3d at 590. Direct evidence of each essential element of the underlying claim is not required. Id. at 590-91. 1. Pohl's Claim for Conversion Should Be Dismissed Because He Failed to Establish a Prima Facie Case of Ownership. Conversion is the unauthorized and unlawful assumption and exercise of dominion and control over the personal property of another, to the exclusion of or inconsistent with, the owner's rights. Freezia v. IS Storage Venture, [*26] LLC, 474 S.W.3d 379, 386 (Tex. App.-Houston [14th Dist.] 2015, no pet.). The essential elements are: (1) the plaintiff owned or had possession of the property or entitlement to possession; (2) the defendant unlawfully and without authorization assumed and exercised control over the property to the exclusion of, or inconsistent with, the plaintiff's rights as an owner; (3) the plaintiff demanded return of the property; and (4) the defendant refused to return the property. Id. at 386-87; Stroud Prod., L.L.C. v. Hosford, 405 S.W.3d 794, 811 (Tex. App.-Houston [1st Dist.] 2013, pet. denied). Pohl failed to establish a prima facie case of ownership-the first element of his conversion claim. Pohl claimed that the trade secret and confidential information at issue includes: the identities of Pohl's clients/prospective clients, as well as their detailed contact information . . . . actual attorney-client fee agreem ents with clients/prospective clients, compilations of clients, other confidential communications between the clients/prospective clients and Pohl, specialized legal forms that had been prepared in compliance with various state laws after consultation with local counsel in those jurisdictions, Pohl's proprietary administrative client forms, fee-agreement forms prepared in accordance with the laws of [*27] various states, internal emails, propriety marketing information and other trade secrets, and other work product relating to claims of Pohl's clients and prospective clients. Page 13 of 21 2019 TX APP. CT. BRIEFS LEXIS 10777, *27 2 CR 895 (emphasis in original). He also asserted that Precision stole "physical copies of certain of the information, stole Pohl's computers, and misappropriated electronic data to which they had access through Precision's work for Pohl." 2 CR 895. But the only evidence of ownership that Pohl presented to the trial court consisted of the following two statements in his sworn Declaration: 4. I was and am the rightful owner of the confidential, privileged and trade secret information that Kassab obtained from Scott Favre, Precision Marketing Group, LLC ("Precision), and Tina Nicholson on which this suit is based. 5. . . . Precision undertook to convert, misappropriate for itself, and/or market to third parties claimant files and other information and materials that belong to me. 2 CR 1393. These conclusory statements do not establish a prima facie case of ownership, particularly because the Favre Appellants presented controverting evidence. 5See In re Lipsky, 460 S.W.3d at 590 ("prima facie case" refers to evidence sufficient as a matter of law to establish a given fact if it is not rebutted or contradicted). Favre testified by affidavit that the client lists and related information had always belonged to Precision: Precision has developed proprietary marketing lists consisting of the names of persons and business on the Gulf Coast, particularly in Mississippi. These marketing lists were and are solely the work product and property of Precision, developed during the normal course of its marketing business. 2 CR 842. He similarly testified under oath in the Mississippi Litigation that Williamson (and possibly Pohl) had previously told him that they had no interest in the client lists or other information: You guys said, No, you had no interest, you had no interest. Your exact words were, We could care less if that list gets out there or not. We did absolutely nothing wrong, and [*29] we had that conversation three times, Mr. Shepherd. So now all of a sudden this list is a problem. 2 CR 791. Williamson's attorney also represented to the Court in the Mississippi Litigation that, "It is immaterial who had the right to possess the list or files or for that matter who may be the owner or creator of the list or files." 2 CR 826. 6 Pohl's conduct is consistent with Favre's testimony, and with Williamson's representation that he and Pohl did not care what happened to the client lists. He failed to articulate what steps he 5 The Favre Appellants' Motion to Dismiss referred the trial [*28] court to the "Motion to Dismiss by Lance Kassab, with Exhibits," for more information regarding Pohl's barratry conduct. 3 CR 136. This evidence was therefore before the trial court when it considered the Favre Appellants' Motion to Dismiss. 6 Due to Pohl's proximity to Williamson as both a joint venture and as a Co-Defendant with aligned interests, Williamson's understanding and knowledge can be imputed to Pohl. See Heinrich v. Wharton Cty. Livestock, Inc., 557 S.W.2d 830, 833-34 (Tex. Civ. App.-Corpus Christi 1977, writ ref'd n.r.e.) (as a general rule, a joint venture is governed by the same rules as a partnership, and the knowledge of one partner regarding partnership matters is imputed to another). Page 14 of 21 2019 TX APP. CT. BRIEFS LEXIS 10777, *28 took, if any, to ensure that he retained primary ownership of the client names, files, etc., and to maintain their confidentiality. Although he did send a letter to Nicholson in May 2015 the request the return of the fee contracts, 3 CR 152, he never followed up on this [*30] request or challenged Precision's response asserting ownership. In February 2016, counsel for Williamson in the Mississippi Litigation sent Nicholson a letter, claiming that the client contracts and files belonged to Pohl and Williamson. 2 CR 819-20. Nicholson responded that "all of these documents were created by [Precision] and/or third parties, and [Precision] ha[s] had possession of these documents since they were created." 2 CR 821. She pointed out that Williamson (and Pohl) had known for four years, since 2012, that Precision had these documents, yet neither Williamson nor Pohl had "at any time asserted any interest in or right to the documents." 2 CR 821-22. In May 2016, Pohl amended his Answer in the Mississippi Litigation to assert that Precision had joined a conspiracy with Favre to convert Pohl's property. 3 CR 195-96. But by this point, Pohl had realized that he might be the subject of several barratry claims, and he suddenly decided that he needed to assert ownership over the client lists and other information to protect himself. The fact that he was never in possession of this information, and that he waited three years to claim it belonged to him, moots any allegation of ownership. In contrast, [*31] Precision presented affidavit testimony from Favre that Precision created the documents and client lists, has had possession of them since their creation, and that this information belonged to Precision as its work product. 2 CR 821, 842. Pohl's assertion of ownership further fails because the fee agreements, client names and files, etc., belonged to Pohl's former clients. Under Texas Rule of Professional Conduct 1.15(d), upon the termination of representation, a lawyer must take steps to protect the client's interests, such as "surrendering papers and property to which the client is entitled . . . " The lawyer "may" retain papers relating to the client "only if such retention will not prejudice the client in the subject matter of the representation." Id. The attorney is therefore the "agent of the client," and " the work product generated by the attorney in representing the client belongs to the client." In Re Kenneth George- consolidated with-In Re Epic Holdings, Inc., 28 S.W.3d 511, 516 (Tex. 2000) (emphasis added); see also Hebisen v. State, 615 S.W.2d 866, 868 (Tex. Civ. App.-Houston [1st Dist.] 1981, no writ). Everything in the entire file having to do with a clients' representation, i.e. attorney notes, legal memoranda, etc., belongs to the client. Resolution Trust Corp. v. H-, [*32] P.C., 128 FRD 647, (N.D. Tex. 1989) (holding that the original file belongs to the client because it was paid for by the client). Pohl consequently failed to establish a prima facie case of ownership over the alleged trade secret and confidential information. The evidence negating ownership also negates the second element of Pohl's conversion claim- that the Favre Appellants unlawfully and without authorization assumed and exercised control over the property to the exclusion of, or inconsistent with, Pohl's alleged rights as the owner. See Freezia, 474 S.W.3d at 386-87. Pohl therefore failed to establish a prima facie case for the first two elements of his conversion claim, and this cause of action should be dismissed under the TCPA. Page 15 of 21 2019 TX APP. CT. BRIEFS LEXIS 10777, *32 2. Pohl's Claim for Violation of the TUTSA Should Be Dismissed Because He Failed to Establish a Prima Facie Case that the Information Qualifies as a Trade Secret, or that He Sustained Any Injury. The elements of a claim for violation of the TUTSA are (1) ownership of a trade secret; (2) misappropriation of the trade secret; and (3) an injury, if the plaintiff is seeking damages. TEX. CIV. PRAC. & REM. CODE Ann. §§ 134A.002(1), (3), (6), 134A.004(a). Pohl failed to establish [*33] a prima facie case on all three elements. As to the first element, the evidence and argument in Part (C)(1) above demonstrate Pohl's lack of ownership. Pohl also failed to establish that the information qualified as a trade secret under the TUTSA. See Stewart & Stevenson Servs. v. Serv-Tech, Inc., 879 S.W.2d 89, 99 (Tex. App.-Houston [14th Dist.] 1994, writ denied) (party claiming trade secret status bears the burden of proof). Information subject to trade secret protection includes: formulas, patterns, compilations, programs, devices, methods, techniques, processes, financial data, and lists of actual or potential customers or suppliers that (1) the plaintiff has taken reasonable efforts to keep secret and (2) has actual or potential independent economic value to third parties because it is not generally known and not readily ascertainable by proper means. TEX. CIV. PRAC. & REM. CODE Ann. § 134A.002(6) (emphasis added). In determining whether information constitutes a trade secret, courts consider the following factors: (1) The extent to which the information is known outside the claimant's business; (2) The extent to which the information is known by employees and other involved in the claimant's business; (3) The extent of the [*34] measures taken by the claimant to guard the secrecy of the information; (4) The value of the information to the claimant and its competitors; (5) The amount of effort or money expended by the claimant in developing the information; and (6) The ease or difficulty with which the information could be properly acquired or duplicated by others. In re Bass, 133 S.W.3d 735, 739 (Tex. 2003). Pohl generally asserted in his Declaration that he "took substantial measures to maintain the materials and information" at issue as "confidential," that he "protected them as trade secrets," and that he kept the physical copies "under lock and key." 2 CR 1394-95. He did not explain, however, what "measures" he took to maintain the confidentiality of the electronic information or the duplicate copies. He did not articulate any parameters that he established to ensure that Precision did not share the information. And he did not detail the amount of money he invested in keeping this information confidential. Pohl's conclusory allegations did not establish a prima Page 16 of 21 2019 TX APP. CT. BRIEFS LEXIS 10777, *34 facie case that the information enjoys "trade secret" status. See Game Sys. v. Forbes Hutton Leasing, Inc., No. 02-09-00051-CV, 2011 Tex. App. LEXIS 4098, at *76 (Tex. App.-Fort Worth, May 26, 2011, no pet.) (mem. op.) (statement that the software "constitutes a trade [*35] secret" was conclusory and not proper evidence). In addition, the names and addresses of Pohl's former clients, along with their individual fee agreements, are not confidential. "[T]he attorney-client privilege certainly does not encompass such non-confidential matters as the terms and conditions of an attorney's employment and the purpose for which an attorney has been engaged." Borden, Inc. v. Valdez, 773 S.W.3d 718, 720 (Tex. App.-Corpus Christi 1989, no writ); Jim Walter Homes, Inc. v. Foster, 592 S.W.2d 749, 752 (Tex. Civ. App.-Eastland 1979, no writ) (fee agreement is not privileged or confidential because it is a matter collateral to the professional relationship and has no bearing on the merits of the matter on which the attorney was hired). 7 Finally, the Favre Appellants controverted these conclusory assertions with contrary evidence that Pohl [*36] did not protect this information as trade secret or proprietary (see Part (C)(1) above). Pohl therefore failed to make a prima facie case that the information at issue qualified as a trade secret under the TUTSA. As to the third element of injury, Pohl's evidence consisted of the conclusory assertion that "the exposure of the confidential materials and information" had resulted "in a loss of intrinsic value to me as trade secrets and confidential materials." 2 CR 1394. Pohl did not place any value on these trade secrets or explain how their disclosure injured him. He did not state that he would suffer lost revenue, lost clients, increased competition, or that the allegedly confidential information gave him a valuable economic or competitive advantage. Other than preventing his former clients from bringing rightful claims against him, Pohl has no use for or reason to value, the purportedly confidential information. In truth, Pohl's only "injury" from the disclosure of the allegedly confidential information consists of the barratry lawsuits his former clients have filed against him. Pohl failed to establish a prima facie case of injury under the TUTSA and this claim should have [*37] been dismissed. 8 3. Pohl's Claim for Civil Conspiracy Should Be Dismissed Because He Failed to Establish a Prima Facie Case on His Conversion or TUTSA Claims. 7 See also Stewart Abstract Co. v. Judicial Comm'n of Jefferson County, 131 S.W.2d 686, 690 (Tex. Civ. App. - Beaumont 1939, no writ) (account and ledger books showing names of clients, nature of services rendered, and payments were not privileged or confidential); In re Ginther, No. 07-80200-G3-11, 2008 Bankr. LEXIS 2624, at *14 (Bankr. S.D. Tex. Aug. 29, 2008) (recognizing that the "identity of client, terms and conditions of employment, amount of fee, identification of payment by case file name, and the general purpose of the work performed, are not privileged.") 8 Compare and contrast Morgan v. Clements Fluids S. Tex., Ltd., No. 12-18-00055-CV, 2018 Tex. App. LEXIS 9061, at *13 (Tex. App.-Tyler Nov. 5, 2018, no pet.) (holding prima facie case of TUTSA violation met where plaintiff asserted that trade secrets gave it a valuable economic and competitive advantage in the industry); Universal Plant Servs. v. Dresser-Rand Grp., Inc., No. 01-17-00555-CV, 2018 Tex. App. LEXIS 10650, at *30-32 (Tex. App.- Houston [1st Dist.] Dec. 20, 2018, no pet.) (prima facie case for misappropriation of trade secrets made where plaintiff presented evidence that the information misappropriated was worth more than $ 100 million in future revenue). Page 17 of 21 2019 TX APP. CT. BRIEFS LEXIS 10777, *37 Finally, Pohl alleges that all Defendants "entered into a combination with the object of unlawfully misappropriating Pohl's trade secrets," "stealing Pohl's confidential information," and using it for Defendants' own gain. 2 CR 891. Civil conspiracy is a derivative cause of action; the defendant's liability depends on its participation in some underlying tort for which the plaintiff seeks to hold at least one of the named defendants liable. Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex. 1996) (orig. proceeding). Since Pohl failed to establish a prima facie case of conversion or misappropriation [*38] of trade secrets, he likewise cannot establish a prima facie case for each element of his civil conspiracy claim. D. Pohl's Claims Should Be Dismissed Because He Failed to Establish that the Commercial Speech Exemption Applies. Under the "commercial speech exemption," the TCPA does not apply to: a legal action brought against a person primarily engaged in the business of selling or leasing goods or services, if the statement or conduct arises out of the sale or lease of goods, services, or an insurance product, insurance services, or a commercial transaction in which the intended audience is an actual or potential buyer. TEX. CIV. PRAC. & REM. CODE Ann. § 27.010(b). According to the Texas Supreme Court's interpretation of this statute in Castleman, the exemption applies when: (1) the defendant was primarily engaged in the business of selling or leasing goods, (2) the defendant made the statement or engaged in the conduct on which the claim is based in the defendant's capacity as a seller or lessor of those goods or services, (3) the statement or conduct at issue arose out of a commercial transaction involving the kind of goods or services the defendant provides, and [*39] (4) the intended audience of the statement or conduct were actual or potential customers of the defendant for the kind of goods or services the defendant provides. Castleman v. Internet Money Ltd., 546 S.W.3d 684, 688 (Tex. 2018). "The party asserting the exemption bears the burden of proving its applicability." Id. Pohl failed to carry this burden of proof as to Appellants Scott Favre and Scott M. Favre Public Adjuster, LLC. Scott Favre is a licensed public insurance adjuster doing business as Scott M. Favre Public Adjuster, LLC. 3 CR 207. Scott M. Favre Public Adjuster, LLC is a public adjusting firm that adjusts insurance losses resulting from catastrophic storms and other losses. 3 CR 209. Favre and his firm are therefore in the business of selling public insurance adjusting services, which as defined by Texas law concerns the negotiation and settlement of property insurance claims. See Tex. Ins. Code Ann. § 4102.001(3). For the commercial speech exemption to apply, Favre and his firm must have made the communications about which Pohl complains in their capacity "as a seller or lessor of those goods or services"-that is, in their capacity as sellers of public insurance adjusting services. Castleman, 546 S.W.3d at 688. But Pohl does not complain [*40] about communications made in the context of adjusting services. He complains about communications through which Favre Page 18 of 21 2019 TX APP. CT. BRIEFS LEXIS 10777, *40 and Precision allegedly sold the client lists and other information to Kassab and Montague. 2 CR 891. There is no evidence that Favre or Scott M. Favre Public Adjuster, LLC are in the business of selling such information, or that they ever owned or possessed the information at issue. Indeed, the evidence established that the client lists and other related information were at all times in Precision's possession and ownership. 2 CR 821, 842. Pohl therefore failed to establish that the commercial speech exception applies to Favre or Scott M. Favre Public Adjuster, LLC. E. Pohl's Claims Should Be Dismissed Because They Are Barred by Limitations. Under the TCPA, once a plaintiff has demonstrated a prima facie case for each element of its causes of action, the burden shifts back to the movant to prove each element of an affirmative defense. TEX. CIV. PRAC. & REM. CODE Ann. § 27.005(d). Pohl did not establish a prima facie case for each element of his conversion, TUTSA violations, and civil conspiracy claims against the Favre Appellants, but even if he did, those claims are barred by limitations. 1. Pohl's Conversion [*41] Claim Is Barred by Limitations. Pohl's May 23, 2016 Amended Answer in the Mississippi Litigation proves that he knew about his conversion cause of action more than two years before he filed the instant lawsuit. Pohl asserts in the Amended Answer that, "At a time as yet unknown, but believed to have been no later than the summer of 2013, [Precision] joined with Scott Favre, his business entities and/or affiliates, to convert property belonging to Pohl." 3 CR 195-96. In May 2015, Pohl sent Precision a letter, asking that Precision return the originals and copies of fee contracts with his BP clients. 3 CR 152. Pohl also testified in another proceeding that in 2014, the "barratry lawyer's team" (allegedly consisting of Nicholson, Kassab and Montague) broke into Pohl's office in Gulfport Mississippi and stole all of his files, documents, computers and passwords. 1 CR 646-48. Conversion carries a two year statute of limitations. Tex. Civ. Prac. & Rem. Code Ann. § 16.003. Pohl's pleadings in the Mississippi Litigation and his deposition testimony indicate that he knew by May 23, 2016, and possibly before then, that he had a claim for conversion against Precision. However, he did not [*42] file the instant lawsuit until August 28, 2018, which is more than two years after his cause of action accrued. His conversion claim against the Favre Appellants is therefore barred by limitations. 2. Pohl's Claim for TUTSA Violations Is Barred by Limitations. Pohl also failed to file his claim for TUTSA violations within the three year limitations period. The Mississippi Litigation was filed on October 18, 2014. 1 CR 308. Williamson alleged in a pleading in that litigation that "since before this lawsuit was filed , [Precision has] threatened to sell to barratry lawyers the client contracts, questionnaires, supporting documents, client contact information, etc. they obtained while working for the separate defendant, Michael Pohl." 3 CR 214- 15 (emphasis added). Pohl similarly alleged in his Amended Answer that " no later than the summer of 2013 ," Precision and Favre were converting his property. 3 CR 195-96 (emphasis added). There is also Pohl's prior deposition testimony that Nicholson 9 and Kassab broke into his office in 2014 and stole information and property. [*43] 1 CR 646-48, 9 Pohl knew that Nicholson was representing Precision in the Mississippi Litigation. See 3 CR 152. Page 19 of 21 2019 TX APP. CT. BRIEFS LEXIS 10777, *43 652. Pohl further testified that although these alleged thefts continued into 2015, and possibly 2016, he intentionally chose not to do anything about them. 1 CR 652-54. This evidence establishes that Pohl was on notice by 2014 that he had a possible cause of action against the Favre Appellants for misappropriation of trade secrets. Theft trade secrets is governed by a three year statute of limitations, which expired on Pohl's claim for misappropriation of trade secrets in 2017 at the latest. TEX. CIV. PRAC. & REM. CODE Ann. § 16.010. Since Pohl did not file the instant suit until August 28, 2018, and his claim for TUTSA violations is time-barred. 3. Pohl's Civil Conspiracy Claim Is Barred by Limitations. Because civil conspiracy is a derivative tort that depends on participation in some underlying tort, the applicable statute of limitations coincides with that of the underlying tort. Agar Corp., Inc. v. Electro Circuits Int'l, LLC, No. 17-0630, 2019 Tex. LEXIS 351, at *1-2 (Tex. Apr. 5, 2019). Pohl's civil conspiracy claims against the Favre Appellants are based on their alleged conversion and misappropriation of allegedly confidential and trade secret information, which barred by limitations. His claim for civil conspiracy is therefore [*44] time-barred as well. CONCLUSION The TCPA applies to the communications that form the basis of this lawsuit. Pohl failed to establish a prima facie case as to each element of his conversion, TUTSA violations, and civil conspiracy claims against the Favre Appellants, and even if he did, these claims are barred by limitations. The trial court therefore erred in denying the Favre Appellants' Motion to Dismiss Pohl's claims for conversion, TUTSA violations, and civil conspiracy. PRAYER The Favre Appellants request that this Court reverse the trial court's order denying their Motion to Dismiss and enter judgment granting the Motion to Dismiss as to Pohl's claims for conversion, violations of the TUTSA, and civil conspiracy. The Favre Appellants further request that this case be remanded to the trial court for a hearing on attorney's fees and sanctions, which are mandatory under the TCPA. Respectfully submitted, By: /s/ Todd Taylor Todd Taylor, SBN 00785087 Jocelyn A. Holland, SBN 24059965 Johanson & Fairless, LLP 1456 First Colony Blvd. Sugar Land, TX 77479 281-313-5000 281-340-5100 Page 20 of 21 2019 TX APP. CT. BRIEFS LEXIS 10777, *44 ttaylor@jandflaw.com jholland@jandflaw.com [*45] CERTIFICATE OF COMPLIANCE Appellants certify that this Appellants' Brief (when excluding the caption, identity of parties and counsel, table of contents, index of authorities, statement of the case, statement regarding oral argument, statement of issues presented, signature, certificate of service, certificate of compliance, and appendix) contains 8684 words. /s/ Todd Taylor TODD TAYLOR CERTIFICATE OF SERVICE I hereby certify that, on April 25, 2019, a true and correct copy of the above and foregoing has been served via electronic service on the following: Jean C. Frizzell 1100 Louisiana St., Suite 3500 Houston, Texas 77002 Counsel for Appellees Michael A. Pohl And Law Office Of Michael A. Pohl, PLLC Jessica Z. Barger E. Marie Jamison One Riverway, Suite 2200 Houston, Texas 77056 And Chris C. Pappas Andrew J. Sarne Kimberly C. Clark 5051 Westheimer Road, Suite 1000 Houston, Texas 77056 Counsel for Appellants Tina Nicholson and Baker Nicholson, LLP d/b/a Baker Nicholson Law Firm Lance Christopher Kassab, SBN 00794070 David Eric Kassab, SBN 24071351 THE KASSAB LAW FIRM Page 21 of 21 2019 TX APP. CT. BRIEFS LEXIS 10777, *45 1214 Elgin Street Houston, Texas 77004 Counsel [*46] for Appellants Lance Christopher Kassab, Lance Christopher Kassab, P.C. D/B/A The Kasab Law Firm /s/ Todd Taylor TODD TAYLOR [SEE APPENDIX IN ORIGINAL] End of Document |