John Moore Services, Inc. and John Moore Renovation, LLC v. the Better Business Bureau of Metropolitan Houston Inc.

ACCEPTED
01-14-00906-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
4/20/2015 7:28:25 PM
CHRISTOPHER PRINE
CLERK

Cause No. 01-14-00906-CV
__________________________________
FILED IN
IN THE COURT OF APPEALS 1st COURT OF APPEALS
HOUSTON, TEXAS
FOR THE FIRST DISTRICT OF TEXAS
4/20/2015 7:28:25 PM
HOUSTON, TEXAS CHRISTOPHER A. PRINE
Clerk

JOHN MOORE SERVICES, INC. AND JOHN MOORE RENOVATION, LLC,
Appellants,
v.
THE BETTER BUSINESS BUREAU OF METROPOLITAN HOUSTON, INC.,
Appellees.

Appeal from the 269th District Court of Harris County, Texas
Cause No. 2012-35162

BRIEF OF APPELLANTS

Douglas Pritchett, Jr.
Texas Bar No. 24007877
JOHNSON, TRENT, WEST & TAYLOR, L.L.P.
919 Milam Street, Suite 1700
Houston, Texas 77002
(713) 222-2323 (Telephone)
(713) 222-2226 (Facsimile)
BAKER, DONELSON, BEARMAN, CALDWELL
& BERKOWITZ, P.C.
Lori Hood
Texas Bar No. 09943430
1301 McKinney Street, Suite 3700
Houston, Texas 77010
(713) 650-9700 (Telephone)
(713) 650-9701 (Facsimile)
ATTORNEYS FOR APPELLANTS
JOHN MOORE SERVICES, INC. AND
JOHN MOORE RENOVATION, LLC

Oral Argument Requested
 IDENTITY OF PARTIES AND COUNSEL

Pursuant to Texas Rule of Appellate Procedure 38.1(a), the following is a

list of all parties and the names and addresses of all counsel:

I. APPELLANTS:

John Moore Services, Inc.
John Moore Renovation, LLC

Counsel for Appellants:

Douglas Pritchett, Jr.
JOHNSON, TRENT, WEST & TAYLOR, L.L.P.
919 Milam Street, Suite 1700
Houston, Texas 77002
Telephone: (713) 222-2323
Facsimile: (713) 222-2226

Lori Hood
BAKER, DONELSON, BEARMAN, CALDWELL
& BERKOWITZ, P.C.
1301 McKinney Street, Suite 3700
Houston, Texas 77010
(713) 650-9700 (Telephone)
(713) 650-9701 (Facsimile)

i
II. APPELLEES:

The Better Business Bureau of Metropolitan Houston, Inc.

Counsel for Appellees:

Lauren B. Harris
Jeffrey R. Elkin
Susan K. Hellinger
M. Harris Stamey
PORTER HEDGES LLP
1000 Main Street, 36th Floor
Houston, Texas 77002
Telephone: (713) 226-6624
Facsimile: (713) 226-6224

ii
 TABLE OF CONTENTS

Page
IDENTITY OF PARTIES AND COUNSEL .............................................................i

TABLE OF AUTHORITIES ..................................................................................... v

STATEMENT OF THE CASE ............................................................................... vii

ISSUES PRESENTED........................................................................................... viii

STATEMENT OF FACTS ........................................................................................ 1

SUMMARY OF THE ARGUMENT ........................................................................ 5

ARGUMENT AND AUTHORITIES ........................................................................ 6

I. THE HOUSTON BETTER BUSINESS BUREAU DID NOT
ESTABLISH ENTITLEMENT TO ATTORNEYS’ FEES
AND SANCTIONS ..................................................................................... 6

A. Except in the Most Simple of Cases,
Documentation Is the Only Practical Means
of Determining the Reasonableness of Fees ............................... 6

B. The Redactions and Bulk Billing in the
Houston BBB’s Invoices Result in Legally
Insufficient Evidence of Attorneys’ Fees ................................. 10

1. The Invoices Did Not Specifically
Identify the Services Performed ..................................... 11

2. The Invoices Did Not Specifically
Identify the Costs of Performing
Various Tasks ................................................................. 15

C. The Expert’s Ipse Dixit Is Not Legally
Sufficient Evidence of Necessity and
Reasonableness ......................................................................... 16

iii
 II. THERE SHOULD BE A NEW TRIAL CONSIDERING THE
PROPRIETY OF ATTORNEYS’ FEES IN LIGHT OF JOHN
MOORE’S REMAINING CLAIMS ............................................................. 20

A. John Moore’s Antitrust Claims Should Have
Been Heard in the Same Proceeding as Its
Earlier Claims ........................................................................... 22

B. The Antitrust Claims Were (and Remain)
Legally Viable ........................................................................... 23

C. The Splitting of John Moore’s Claims
Creates in Unacceptable Risk of Inconsistent
Adjudications ............................................................................ 24

PRAYER ................................................................................................................26

CERTIFICATE OF COMPLIANCE ....................................................................... 28

CERTIFICATE OF SERVICE ................................................................................ 28

APPENDIX ..............................................................................................................29

iv
 TABLE OF AUTHORITIES

Cases Page(s)

Burroughs Wellcome Co. v. Crye,
907 S.W.2d 497 (Tex. 1995) ........................................................................17, 18

Burrow v. Arce,
997 S.W.2d 229 (Tex. 1999) .............................................................................. 19

City of Laredo v. Montano,
414 S.W.3d 731 (Tex. 2013) ....................................................................8, 11, 15

City of San Antonio v. Pollack,
284 S.W.3d 809 (Tex. 2009) .............................................................................. 19

Coastal Transport Co., Inc. v. Crown Cent. Petroleum Corp.,
136 S.W.3d 227 (Tex. 2004) .............................................................................. 16

Downer v. Aquamarine Operators, Inc.,
701 S.W.2d 238 (Tex. 1985) ........................................................................20, 21

El Apple I, Ltd. v. Olivas,
370 S.W.3d 757 (Tex. 2012) ................................... 6, 7, 8, 10, 11, 12, 14, 15, 16

Elizondo v. Krist,
415 S.W.3d 259 (Tex. 2014) .............................................................................. 19

In re Ethyl Corp.,
975 S.W.2d 606 (Tex. 1998) .............................................................................. 22

Finger v. Southern Refrigeration Servs.,
881 S.W.2d 890 (Tex. App.—Houston [1st Dist.] 1994, writ
denied).................................................................................................................23

Lone Star Ford, Inc. v. McCormick,
838 S.W.2d 734 (Tex. App.—Houston [1st Dist.] 1992, writ
denied).................................................................................................................25

Lone Star Gas Co. v. The Rd. Comm’n of Tex.,
767 S.W.2d 709 (Tex. 1989) ................................................................................ 6

v
Long v. Griffin,
442 S.W.3d 253 (Tex. 2014) ........................................................................11, 12

Maritime Overseas Corp. v. Ellis,
971 S.W.2d 402 (Tex. 1998) .............................................................................. 16

Natural Gas Pipeline Co. of Am. v. Justiss,
397 S.W.3d 150 (Tex. 2012) .............................................................................. 16

Schaefer v. Tex. Empl. Ins. Ass’n,
612 S.W.2d 199 (Tex. 1980) ........................................................................16, 17

Van Dyke v. Boswell, O’Toole, Davis & Pickering,
697 S.W.2d 381 (Tex. 1985) .............................................................................. 23

Volkswagen of Am., Inc. v. Ramirez,
159 S.W.3d 897 (Tex. 2004) .............................................................................. 20

Statutes
TEX. CIV. PRAC. & REM. CODE § 27.005(a) .............................................................. 4

TEX. CIV. PRAC. & REM. CODE § 27.009(a) ............................................................. 24

TEX. CIV. PRAC. & REM. CODE § 51.014(a)(12) ........................................................ 4

TEX. CIV. PRAC. & REM. CODE § 51.014(b) (effective June 14, 2013) ................1, 23

Rules
TEX. R. APP. P. 43.3 ................................................................................................... 6

vi
 STATEMENT OF THE CASE

Nature of the case: John Moore brought this case alleging
various torts and attempted to amend
its petition to add several additional
claims. CR4. This appeal arises out
of a judgment for attorneys’ fees
awarded to the Better Business
Bureau of Metropolitan Houston (the
“Houston BBB”). CR115.

Course of Proceedings: After the court of appeals reversed the
trial court’s denial of the Houston
BBB’s motion to dismiss, the
Houston BBB requested attorneys’
fees, costs, and sanctions. App. E;
Supp. CR _. The question was tried
to a jury, and the jury returned a
verdict in favor of the Houston BBB.
CR108; App.N.

Disposition: The trial court rendered judgment on
the jury’s verdict and awarded
sanctions against John Moore.
CR115; App.O.

vii
 ISSUES PRESENTED

1. The Texas Supreme Court requires evidence of specific tasks and of
the time required to complete them in order to support a finding that
fees are reasonable and necessary. The Appellees’ evidence obscures
the tasks performed and the time required to perform them, requiring
the jury to rely on the ipse dixit of an interested witness as to
reasonableness and necessity. Is Appellees’ evidence legally
sufficient?

2. A finding that fees are reasonable and necessary depends on the
results obtained. Through the actions of the Appellees in opposing the
joinder of claims (either by amendment or by consolidation), the jury
was not presented with the entire dispute (namely, the antitrust
claims) and could not consider the ultimate results obtained. Must a
new trial be ordered to allow the jury to consider the measure of
overall success Appellee has enjoyed?

viii
 STATEMENT OF FACTS

This is an appeal of the attorneys’ fees judgment in the first lawsuit (Cause

No. 12-35162) filed by John Moore. App. A; Supp. CR_ (Original Petition). 1 On

September 27, 2013, while the interlocutory appeal brought by The Better Business

Bureau of Metropolitan Houston, Inc. (the “Houston BBB”) was pending, John

Moore filed a first amended petition. CR4. The amended petition joined several

new parties and new claims (significantly, claims that the Houston BBB’s conduct

was a restraint on trade or an attempt to monopolize). Id. John Moore requested

and received leave to file this petition, which the Houston BBB opposed. App. B;

Supp. CR _ (Order of October 11, 2013). The order granting leave to file stated

that no further amendments were permitted absent leave of court. Id.

After the trial court granted leave to file, the Houston BBB moved to strike

the amended petition. CR43. The Houston BBB argued, for the first time, that an

amendment to the interlocutory appeal statute required that all proceedings be

stayed. CR43 (citing TEX. CIV. PRAC. & REM. CODE § 51.014(b) (effective

June 14, 2013)). On November 1, 2013, the trial court struck the amended petition

and signed an order staying proceedings. App. C; Supp. CR_ (Order of

November 1, 2013).

1
The district clerk has indicated that the Supplemental Record is expected to be completed in a
matter of days. In order to ensure the timely filing of its brief, John Moore has included key
items in the Appendix.
1
 John Moore preserved its claims from the amended petition by filing a

second lawsuit (Cause No. 13-76215). App. M; Supp. CR_ (Order of August 11,

2014). John Moore requested that the second lawsuit be heard by the 269th

District Court, which was also the court with jurisdiction over the first lawsuit. Id.

This second lawsuit was also challenged by the Houston BBB under the Anti-

SLAPP statute. Id.

After the mandate issued on the interlocutory appeal, the Houston BBB filed

a motion seeking attorneys fees, costs, expenses and sanctions in the first lawsuit.

App. E; Supp. CR_ (Motion for Award of Attorneys’ Fees, Court Costs, Expenses

and Sanctions). The motion was supported by an affidavit by attorney Jeffrey

Elkin. Id.; Supp. CR_ (Exhibit C). After the hearing on the motion was set, John

Moore responded, arguing that it was entitled to a jury trial on the question of the

necessity and reasonableness of the fees. App. G, H; Supp. CR_ (Order of June 4,

2014), _ (Response and Objection to Defendant’s Motion). The response (which

was filed with leave of court) controverted the Houston BBB’s affidavit with an

affidavit by attorney Lori Hood. App. H; Supp. CR_ (Exhibit A); 2RR18. John

Moore also moved for consolidation, but the trial court did not rule as the issue had

not been set for hearing and was premature. 2RR30-31. The court requested that

John Moore raise the consolidation issue again after the court had ruled on the

merits of the motion to dismiss in the second lawsuit. 2RR31.

2
 The attorneys’ fees were tried before a jury within a month of these rulings.

CR108. The Houston BBB offered several exhibits, which were admitted into

evidence, including a set of heavily redacted invoices and several summaries.

DX3 & 4-9. It also offered the expert testimony of Jeffrey Elkin, who opined that

the attorneys’ fee amounts in DX3 were reasonable and necessary based on his

review and knowledge of the specific details contained in the un-redacted invoices.

3RR165, 167-74, 183, 198.

The jury found attorneys fees in the following amounts:

a. For representation in the trial court before and during Houston BBB’s
original interlocutory appeal.

Answer: $106,369.28

b. For representation in the Court of Appeals for the original
interlocutory appeal.

Answer: $81,360.80

c. For representation at the petition for review stage to the Supreme
Court of Texas for the original interlocutory appeal.

Answer: $37,982.08

d. For representation in the trial court after the original interlocutory
appeal was decided.

Answer: $24,289.28

CR111-12; App.N.

3
 The Houston BBB moved for judgment on August 4, 2014, and the motion

was heard four days later. App. J; Supp. CR_ (Motion for Entry of Final

Judgment); but see HARRIS CTY L. R. 3.3.3 (requiring 10 days notice). Meanwhile,

the motion to dismiss in the second lawsuit had been overruled by operation of

law. TEX. CIV. PRAC. & REM. CODE § 27.005(a) (30 days after June 27, 2014

hearing). Because John Moore believed that the motion to dismiss had been

denied, it included a motion to consolidate in the response to the motion for

judgment and set the motion for hearing at the same time as the Houston BBB’s

motion for judgment. App. K & L; Supp. CR_ (Motion to Consolidate), _ (Notice

of Hearing). John Moore also asked that the jury’s verdict be disregarded. Id.

The trial court refused to hear the motion to consolidate or the motion to

disregard. 5RR22. The judgment was signed at the hearing on Friday, August 8,

2014. CR115. Meanwhile, a notice of interlocutory appeal under TEX. CIV. PRAC.

& REM. CODE § 51.014(a)(12) was filed in the second lawsuit six days later, on

Thursday, August 14, 2014.

4
 SUMMARY OF THE ARGUMENT

The Houston BBB seeks recovery of attorneys’ fees, which it cannot recover

for two alternative reasons: (1) its evidence is not legally sufficient to support the

verdict or judgment or (2) the issue should not have been presented to the jury

without consideration of all of John Moore’s claims.

The Texas Supreme Court has ruled that attorneys’ fees evidence in all but

the simplest of cases must be sufficiently detailed to allow the jury to meaningfully

evaluate the application. At a minimum, the evidence must identify the specific

tasks undertaken and quantify the time expended on those tasks. The Houston

BBB has obscured both of these essential elements and attempted to replace them

with generalized categorization of fees, which is an approach already rejected by

the Supreme Court. Furthermore, the expert opinion offered by the Houston BBB

is no evidence because it is based on the assumption that the invoices would show

that the fees were reasonable and necessary, an assumption not supported by the

evidence.

Alternatively, a new trial is necessary in which the jury will be presented

with the merits of John Moore’s antitrust claims as well as the Houston BBB’s

claim for attorneys’ fees on the claims that have been dismissed. Only then could

the jury and court determine whether the fees are reasonable and necessary as well

as just and equitable, respectively.

5
 ARGUMENT AND AUTHORITIES

The standard of review in this case is one of legal sufficiency because John

Moore argued that there was no competent evidence to support the jury’s findings.

Therefore, the correct disposition would be for this Court to render the judgment

that the trial court should have rendered. TEX. R. APP. P. 43.3; Lone Star Gas Co.

v. The Rd. Comm’n of Tex., 767 S.W.2d 709, 710 (Tex. 1989) (when there is no

suggestion that the evidence is not fully developed in the trial court, a remand

would serve no purpose).

I. THE HOUSTON BETTER BUSINESS BUREAU DID NOT ESTABLISH
ENTITLEMENT TO ATTORNEYS’ FEES AND SANCTIONS.

The Houston BBB concedes that the jury could not determine whether the

Houston BBB attorneys’ fees were reasonable without looking at the invoices

submitted by Porter Hedges. 3RR165. Therefore, if the invoices are legally

inadequate, so too is the Houston BBB’s evidence.

A. Except in the Most Simple of Cases, Documentation Is the Only
Practical Means of Determining the Reasonableness of Fees.

The Houston BBB has the burden to document the hours spent on a task and

the value of those hours if it seeks to recover attorneys’ fees. El Apple I, Ltd. v.

Olivas, 370 S.W.3d 757, 761 (Tex. 2012). The Texas Supreme Court considered

whether detailed billing invoices are necessary to support an award of attorneys’

fees or whether an attorney’s affidavit containing general assurances that the fees

6
were reasonable and necessary may support an award of fees. Id. at 761-62.

Rejecting the plaintiff’s argument that his fees could be supported by a mere

affidavit, the Court stated that “a trial court should obtain sufficient information to

make a meaningful evaluation of the application for attorney’s fees.” Id. at 762.

The Court concluded that “[w]hile Texas courts have not routinely required

billing records or other documentary evidence to substantiate a claim for attorney’s

fees, the requirement has merit in contested cases under the lodestar

approach.” Id. (emphasis added). As the Houston BBB seeks attorneys’ fees in

this contested case, it should provide adequately detailed records to support its

claim.

Indeed, the Houston BBB concedes that the jury may best determine

reasonableness by studying the billing invoices.

Q: Where would be the best place for the jury to look to understand
exactly what work was done to incur those fees?

A: The invoices themselves. The monthly invoices would be the most
detailed, and then the summaries try to break it up to be a little more
easy to read and understand. But the detail is in the invoices.

3RR165 (referencing DX3). Thus, the only place to find what specific work the

Houston BBB’s attorneys performed would be in the billing invoices. The

affidavit and the summaries deal only with generalities. See infra p. 10.

Few attorneys have such a memory that they can retain the details of what

tasks were performed in even a routine case lasting more than a few days.
7
Therefore, it is necessary, “in all but the simplest cases,” to keep contemporaneous

records of the time spent in order to provide the required detail showing the nature

of the work, who performed it, the rates, when it was performed, and the amount of

time spent on the task. El Apple I, 370 S.W.3d at 763. This case certainly did not

qualify as the most simple of cases.

Here, the Houston BBB kept billing records, but excuses its heavy redaction

and the unintelligibility of those records based on privilege and confidentiality

concerns. 4RR9, 28; DX3. But attorneys redact substance from their invoices at

their own risk.

The Supreme Court admonished attorneys who expect to seek fees to

anticipate the need and “document their time much as they would for their own

clients.” El Apple I, 370 S.W.3d at 763 (emphasis added). The Houston BBB

should not expect its attorneys’ fees to be paid by John Moore with less

information than it has demanded from its attorneys. This is a goose gander

problem. Indeed, the Supreme Court requires that “[a] similar effort should be

made when an adversary is asked to pay instead of the client.” City of Laredo v.

Montano, 414 S.W.3d 731, 736 (Tex. 2013). Yet, an order requiring John Moore

to pay its fees on faith is precisely what the Houston BBB expects.

8
 Indeed, good practice confirms the Supreme Court’s direction. Attorneys

who seek to recover fees avoid including privileged information in the entries from

the start.

It’s always been my practice to write my time so that I can show it to
anybody. I oftentimes ask jurors to reimburse me or reimburse my
client for attorneys’ fees, and I want them to be able to see what I’ve
done.

4RR60. The Houston BBB’s own attorneys would never expect their client to pay

an invoice that was redacted.

Mr. Elkin: Now, the invoice that went to the BBB didn’t have any
redactions. . . . The one to the BBB showed completely what the
work was done so they could review it and make sure that they
thought it was appropriate.

3RR134. Yet the Houston BBB expected the jury to “make sure” that the fees

were appropriate without this information.

The Houston BBB attempted to meet its burden of proof by providing billing

records whose meaning was obscured by heavy redaction. It attempted to make up

for the unintelligibility of the records by offering the testimony of the billing

attorney, who stated that he reviewed the un-redacted records and that the fees for

the tasks recorded on the invoices were reasonable and necessary. 3RR198. The

question here is whether legally insufficient invoices may be bolstered by the ipse

dixit of an expert witness. The answer is that they cannot. See infra pp. 14-17.

9
 Good practice and the direction of the Supreme Court agree that attorneys

should anticipate the need to use their invoices as evidence. Therefore, they should

keep their time records in such a way that their meaning will not be obscured by

the redaction of substantive information in order to protect privilege. The Houston

BBB did not satisfy this standard.

B. The Redactions and Bulk Billing in the Houston BBB’s Invoices
Result in Legally Insufficient Evidence of Attorneys’ Fees.

A major problem that attorneys’ fees evidence may have is that it can lack

the “specificity” necessary to decide whether the fee is reasonable and necessary.

El Apple I, 370 S.W.3d at 763. The Supreme Court has defined the “minimum”

evidence necessary to support a finding that attorneys’ fees are reasonable and

necessary:

1. documentation of the services performed;

2. who performed them;

3. at what hourly rate;

4. when they were performed; and

5. how much time the work required.

Id. at 764. The Houston BBB’s redactions prevent the jury from evaluating what

specific tasks were performed (requirement #1). The Houston BBB’s bulk billing

prevent the jury from determining how much time was devoted to specific tasks

(requirement #5).

10
 1. The Invoices Did Not Specifically Identify the Services
Performed.

One of the minimum requirements established by the Texas Supreme Court

for the recovery of attorneys’ fees is that there must be documentation of the

specific services that were performed. El Apple I, 370 S.W.3d at 764. The Court

emphasized that general statements are insufficient; the party “must provide

evidence of the time expended on specific tasks to enable the fact finder to

meaningfully review the fee application.” Long v. Griffin, 442 S.W.3d 253 (Tex.

2014) (emphasis added).

In Long v. Griffin, the plaintiff brought two claims that could support an

award of attorneys’ fees: a contract claim and a declaratory judgment action. Id. at

255. To support his claim for fees, the plaintiff presented affidavits that identified

various general tasks (discovery, hearings, motions, and a trial) and that identified

the total number of hours and the rates for the attorneys, but did not “inform the

trial court the time spent on specific tasks.” Id. at 255 (citing El Apple I, 370

S.W.3d at 764-65; City of Laredo v. Montano, 414 S.W.3d 731, 736-37 (Tex.

2013)). The Court held that the general categories identified by the evidence were

legally insufficient to support an award of attorneys’ fees. Id. at 254-55.

Here, the Houston BBB provides a general breakdown of the categories

under which its fees were billed. DX7; 8RR108. The fees are broken into general

categories: (a) Motion to Dismiss ($78,983.50); (b) Interlocutory Appeal (Court of
11
Appeals—$127,126.25, Texas Supreme Court—$43,902.00); (c) Written

Discovery ($59,347.10); (d) Enforcing Stay of Proceedings ($37,952.00);

(e) Mediation ($18,419.00). Id. This generic breakdown of categories is legally

insufficient evidence under the holding of Long. Long, 442 S.W.3d at 255 (“no

evidence accompanied the affidavit to inform the trial court the time spent on

specific tasks.”); see also El Apple I, 370 S.W.3d at 763. The summaries provided

in the defense exhibits are not legally sufficient evidence. DX6, 7, 8; 8RR107-10.

The Houston BBB also provided redacted copies of its attorneys’ invoices.

DX3; 8RR9-105. Before June 2013, the invoices contain bulk billing entries in

which it is impossible to know how much time was spent on any particular task.

DX3; 8RR9-71. These entries are legally insufficient for this reason alone, see

infra pp. 13-14, but the descriptions are also heavily redacted. The Houston BBB

agrees that the full detail of the invoices is not available to the jury.

Q. The full detail of what you did is not discernable by us as we
read this invoice, correct?

A. Correct.

3RR223.

For example, the first page of the invoices exhibit includes the task “draft

and revise [BLANK] letter” and “Communications with Ms. Christiansen

regarding [BLANK].” DX3; 8RR9. The second invoice bills to “meet with J.

Elkin to discuss issues identified in the Petition including [BLANK];” “review the
12
Original Petition and draft [BLANK] revise same and send to J. Elkin for review

and comment;” and “communication to Mr. Parsons and Ms. Christiansen

forwarding [BLANK].” DX3; 8RR11-12.

The redactions after June 2013 made the invoices, if anything, less

intelligible. First, the Houston BBB began to redact the name of the recipient of

the invoices. DX3; 8RR72. The jury cannot even tell who was billed. Further, the

tasks (despite the absence of bulk billing) become more obscure:

DX3; 8RR73. This excerpt is merely an example of the type of redaction that

occurs throughout the invoices. Some tasks were not redacted at all, but the jigsaw

13
puzzle presented by the ninety-six page exhibit leaves too many holes for a jury to

see the entire picture. Without all the data, the jury could not determine whether

the fees as a whole were reasonable and necessary. And the Houston BBB only

offered an opinion as to the fees as a whole. 3RR167-68, 174, 183. There are

simply too many missing pieces to make heads or tails of the work done on this

case.

The Houston BBB did not attempt to fill in these blanks with testimony.

Indeed, its witness had no recollection of what these tasks involved at the time he

testified.

A: Back in June 2012, you’re asking me today to tell you the time
I spent “finalizing and forwarding same.”

Q: You can’t do it, can you?

A: Sitting here today. I cannot do it.

3RR196. This is precisely the problem that the Supreme Court noted in El Apple.

With invoices that were deliberately redacted to remove the substantive

work that was done, the Houston BBB has not and cannot reconstruct the specific

tasks that were performed in this representation. Id. The Houston BBB concedes

that the invoices are the best place to find the details of the work performed, or

they would be, if they were complete. 3RR165. Without complete records, there

is no legally sufficient evidence that the fees were reasonable and necessary.

14
 2. The Invoices Did Not Specifically Identify the Costs of
Performing Various Tasks.

Another minimum requirement for the recovery of attorneys’ fees is that

there must be a record of the time required to complete a specific task. El Apple I,

370 S.W.3d at 764. The Houston BBB claims that there is no requirement to

itemize the tasks, but its position is contrary to the established authority.

[A] lodestar calculation requires certain basic proof, including
itemizing specific tasks, the time required for those tasks, and the
rate charged by the person performing the work.

City of Laredo, 414 S.W.3d at 736 (emphasis added). The Houston BBB’s bulk

billing entries fail to itemize specific tasks or the time required for them. DX3;

8RR9-71.

The first entry on the first invoice contains at least five tasks and a single

time entry. DX3; 8RR9. Because of the redaction, it is impossible to exclude the

possibility that it contains six tasks, but the addition of one or more tasks does not

change the problem. There is no way to know how much time was spent on any of

the particular tasks. Id. This problem repeats itself throughout the invoices until

June 2013, when the invoices mostly stopped the practice of bulk billing. DX3;

8RR72. As more half of the invoices are structured in such a way that the jury

cannot determine the amount of time spent on specific tasks, the invoices are

legally insufficient evidence.

15
 Without the ability to judge the case as a whole, the jury lacked the data

necessary “to make a meaningful evaluation of the application for attorney’s fees.”

El Apple I, 370 S.W.3d at 762. The invoices do not support the verdict or the

judgment.

C. The Expert’s Ipse Dixit Is Not Legally Sufficient Evidence of
Necessity and Reasonableness.

Generalities such as the number of pleadings filed, the amount of discovery

in the case, and the length of the case “provide[] none of the specificity needed for

the trial court to make a meaningful lodestar determination.” El Apple I, 370

S.W.3d at 763. But generalities and conclusory opinions are all the evidence the

Houston BBB offers to support the jury’s decision.

When an expert’s opinion is based on facts that are never established at trial,

the opinion is no evidence and is legally insufficient to support a verdict. Natural

Gas Pipeline Co. of Am. v. Justiss, 397 S.W.3d 150, 159 (Tex. 2012) (market value

opinion must be supported by a factual basis, offered into evidence); Schaefer v.

Tex. Empl. Ins. Ass’n, 612 S.W.2d 199, 205 (Tex. 1980). An expert’s bare opinion

that something is reasonable is not “some evidence.” Schaefer, 612 S.W.2d at 205.

Furthermore, the requirement that evidence be legally sufficient is over and above

the requirement that an expert’s opinion be reliable. Coastal Transport Co., Inc. v.

Crown Cent. Petroleum Corp., 136 S.W.3d 227, 233 (Tex. 2004); Maritime

Overseas Corp. v. Ellis, 971 S.W.2d 402, 412 (Tex. 1998).
16
 In Schaefer, the expert stated that there was a reasonable probability that the

plaintiff had a certain disease caused by a bacteria that could be found in bird

droppings. Id. at 202-203. The evidence was that the plaintiff’s employment

frequently required him to be in contact with soil contaminated by bird droppings.

Id. at 203. However, the soil was never tested to confirm that the bacteria was, in

fact, present. Id. Because the expert assumed that the bacteria was present at the

plaintiff’s workplace but the evidence never established this fact, the expert

opinion was based on “possibility, speculation, and surmise.” Id. at 204.

Therefore, it was not legally sufficient evidence to support a finding in favor of the

plaintiff. Here, the legal expert assumes that the details of the invoices support his

conclusion that the specific tasks performed were reasonable and necessary.

In a similar case, the expert’s opinion that the plaintiff’s frostbite injury was

caused by the application of a spray antiseptic, assumed facts that were, in fact,

contradicted by the evidence. Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497,

499 (Tex. 1995). The expert explained that his opinion that the injury was caused

by frostbite was depended on his assumption that there was no redness of the skin

and that the plaintiff did not follow the directions for application. Id. The

uncontradicted evidence was that the plaintiff’s skin turned red and that she

followed the directions. Id. Because the expert’s assumptions were not supported

17
by any evidence, it had no “probative value and cannot support a verdict or

judgment.” Id.

Here, the Houston BBB’s expert on legal fees states that his review of the

information in the un-redacted invoices allowed him to conclude that the fees

billed were reasonable and necessary.

I would personally review each draft [invoice] in detail to make sure
that, in my opinion, the work that was done was necessary and the
time that was spent was reasonable and the amount charged was
reasonable.

3RR135. Significantly, the opinion offered by the expert that the totality of the

fees requested was reasonable and necessary is all or nothing.

Q. Mr. Elkin, as an expert on attorneys’ fees, what is your opinion
as to the reasonableness of the $375,000 that the BBB is
requesting today?

A. In my opinion, it’s reasonable.

...

The time spent as reflected in these invoices was reasonable.

Q. So taking into consideration these Andersen factors, is it your
opinion today that $375,000 is a reasonable fee for the services
that were provided by Porter Hedges to the BBB . . . in defense
of a SLAPP suit?

A. Yes. I believe so.

3RR167, 174, 83. The expert did not opine task by task, indeed, he admittedly

could not. 3RR196. Based on the expert’s opinion, the jury had to either accept

18
the entire amount or none of it. There was no guidance given to the jury in the

expert’s opinion that would guide it in finding some lesser amount.

The expert’s opinion as to this ultimate issue is based on the truth of the

specific task information contained in the un-redacted drafts. 3RR135. This

specific information was never put into evidence. The expert essentially told the

jurors that they should trust that he had reviewed the data supporting the total and

that he found it to be reasonable, therefore, they should too. This is precisely the

kind of ipse dixit that has been repeatedly criticized by the Texas appellate courts.

“Bare, baseless opinions will not support a judgment even if there is no objection

to their admission in evidence.” Elizondo v. Krist, 415 S.W.3d 259, 254 (Tex.

2014) (quoting City of San Antonio v. Pollack, 284 S.W.3d 809, 816 (Tex. 2009));

see also Burrow v. Arce, 997 S.W.2d 229, 235 (Tex. 1999) (“[I]t is the basis of the

witness’s opinion, and not the witness’s qualifications or his bare opinion alone,

that can settle an issue as a matter of law; a claim will not stand or fall on the mere

ipse dixit of a credentialed witness.”). The opinion should be rejected as no

evidence.

In short, when the jury is left with nothing more to rely on than the ipse dixit

of the expert because the underlying information is not put into evidence, the

opinion will not support a verdict or judgment. Elizondo, 415 S.W.3d at 266. As

now Chief Justice Hecht has said, it is “not enough” when “the only bridge

19
between [an expert’s] credentials, experience, and observations on one side, and

[the expert’s] opinions on the other, is [the expert’s] own veracity.” Volkswagen of

Am., Inc. v. Ramirez, 159 S.W.3d 897, 913 (Tex. 2004) (Hecht, J. concurring).

The Houston BBB’s evidence does nothing more than tell the jury, “trust our

expert, he has seen the un-redacted invoices,” but the Supreme Court says that this

is not enough.

II. THERE SHOULD BE A NEW TRIAL CONSIDERING THE PROPRIETY OF
ATTORNEYS’ FEES IN LIGHT OF JOHN MOORE’S REMAINING CLAIMS.

In the motion for new trial, John Moore presented the question of whether a

new trial was necessary based on “the amount involved and results obtained.”

CR129; Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985)

(“A trial court’s plenary jurisdiction gives it not only the authority, but the

responsibility to review any pretrial order upon proper motion.”). The result in

question was whether the Houston BBB prevailed in seeking dismissal of John

Moore’s claims.

John Moore attempted to join new claims by amending its petition, and the

trial court erred by refusing to permit the amendment on motion by the Houston

BBB. CR43; App. C; Supp. CR_ (Order of November 1, 2013). Furthermore, in

responding to the motion for entry of judgment, John Moore argued that the

attorneys’ fees could be fairly determined only if the cases were consolidated and

the merits of all of John Moore’s claims could be considered at the same time.
20
App. H at 2, 9; Supp. CR_ (Response and Objections to Defendant’s Motion).

The trial court expressly considered and rejected these consolidation arguments

when rendering the judgment requested by the Houston BBB.

[T]o the extent parts of your motions that I have sustained objections
to also contain arguments that would be responsive to the request for a
judgment, I am going to go ahead and enter a final judgment today on
this.

5RR27. 2 The trial court considered and rejected John Moore’s position.

Finally, John Moore moved to consolidate the two lawsuits so that the merits

of all of its claims could be considered in determining the appropriate award of

attorneys’ fees. App. K; Supp. CR_ (Motion to Consolidate). The motion was

noticed for hearing. App. L; Supp. CR_ (Notice of Hearing). The trial court

improperly refused to hear the consolidation motion. 5RR22; Downer, 701 S.W.2d

at 241 (trial court has an obligation to reconsider pretrial rulings when presented

with a proper motion). The jury should have been permitted to consider the

success or failure of John Moore’s additional claims that are now pending in the

second lawsuit when deciding on the appropriate verdict.

A. John Moore’s Antitrust Claims Should Have Been Heard in the
Same Proceeding as Its Earlier Claims.

A court should not permit a claim to proceed to trial and judgment separately

from a related claim when doing so results in an injustice. In re Ethyl Corp., 975

2
The trial court sustained the Houston BBB’s objections to John Moore’s motion to consolidate. 5RR22.

21
S.W.2d 606, 610 (Tex. 1998). The Texas courts have looked to the Federal Rules

in determining the considerations governing consolidation. Id. at 611, n.1. Key

considerations are:

whether the specific risks of prejudice and possible confusion [are]
overborne by the risk of inconsistent adjudications of common factual
and legal issues, the burden on the parties, witnesses and available
judicial resources posed by multiple lawsuits, the length of time
required to conclude multiple suits as against a single one, and the
relative expense to all concerned of the single-trial, multiple-trial
alternatives.

Id. Thus, there are four basic considerations governing consolidation: (1) a

balancing of the risks and (2) the burden, (3) time, and (4) expense of multiple

trials.

The second, third, and fourth factors have already shown that consolidation

would have been much more efficient. The two lawsuits have been an

unnecessarily increased burden on the parties and the courts. The resolution of

these matters has been extended, and there has already been one trial, with the

certainty that another will follow. But this is all spilt milk for the most part. The

key consideration here is the harm to John Moore that may be caused by

inconsistent adjudications.

B. The Antitrust Claims Were (and Remain) Legally Viable.

As urged in the appeal of the second lawsuit (Cause No. 01-14-00687-CV),

res judicata does not apply here because John Moore’s attempts to bring these

22
claims in a single suit were frustrated as the Houston BBB repeatedly blocked the

efforts. See Finger v. Southern Refrigeration Servs., 881 S.W.2d 890, 895-96

(Tex. App.—Houston [1st Dist.] 1994, writ denied). John Moore first brought the

new claims in the first lawsuit by amendment. CR4. The Houston BBB objected

and the trial court struck the pleading based on a newly enacted stay provision that

applied by its own terms only to appeals filed after its effective date. CR43, 76;

App. C; Supp. CR_ (Order of November 1, 2013); TEX. CIV. PRAC. & REM. CODE

§ 51.014(b). As there was no automatic stay in effect under the terms of the

statute, the trial court erred in refusing to allow the joinder of claims.

Even if the Houston BBB were correct in its interpretation of the new

statute, it cannot cause a claim to be split at its own initiative and then seek to

apply res judicata. Id.; Van Dyke v. Boswell, O’Toole, Davis & Pickering, 697

S.W.2d 381, 384 (Tex. 1985) (“the res judicata effects of an action cannot preclude

litigation of claims that a trial court explicitly separates or severs from that

action.”). For this and for the other reasons stated, John Moore’s claims for

antitrust violations are not barred by res judicata and were appropriately brought in

the original lawsuit.

John Moore’s antitrust claims are legally viable because it has provided

prima facie proof based on clear and specific evidence of each of the elements of

its claims. These arguments are detailed in the briefing in the appeal from the

23
second lawsuit (Cause No. 01-14-00687-CV). Thus, the Houston BBB has not

been and will not be entirely successful in obtaining a dismissal of John Moore’s

legal action. TEX. CIV. PRAC. & REM. CODE § 27.009(a). Its failure should be

considered by the jury at the very least, assuming that it is entitled to fees for a

partial success.

C. The Splitting of John Moore’s Claims Creates an Unacceptable
Risk of Inconsistent Adjudications.

The judgment for attorneys’ fees create a risk of inconsistent adjudication

against John Moore. The Houston BBB will receive attorneys’ fees and sanctions

as the prevailing party on a motion to dismiss under Chapter 27 for certain causes

of action, while remaining liable to John Moore for the same underlying conduct

with regard to other causes of action (namely, antitrust). Thus, John Moore would

be considered a non-prevailing party in the first lawsuit and a prevailing party in

the second, based on the same harmful conduct.

Most if not all of the fees incurred by the Houston BBB apply equally to

both lawsuits: the research into the Anti-SLAPP statute (at the trial court level and

on appeal), the discovery, the investigation of John Moore’s allegations, the

mediation. DX7, 8RR107. These tasks are intertwined as are the fees. The work

enforcing the stay provision created the split of the claims and exposed John

Moore to the inconsistent findings. DX7, 8RR109. It would be perverse to award

24
the Houston BBB attorneys’ fees for creating inefficiency in a statute intended to

make the process more efficient.

The Houston BBB cannot explain how it would be prejudiced or what

confusion would occur were these claims to be consolidated or heard as originally

pleaded in the amended petition. Lone Star Ford, Inc. v. McCormick, 838 S.W.2d

734, 738 (Tex. App.—Houston [1st Dist.] 1992, writ denied). Indeed, the

separation of the claims is more apt to cause confusion by suggesting to the jury

that the Houston BBB was entirely successful in its motion to dismiss. Thus, the

judgment forces John Moore to finance the Houston BBB’s defense of John

Moore’s valid claims even when it has shown that there is merit to its complaint

that the Houston BBB has violated the norms of conduct and caused harm.

Even if the Houston BBB had presented some evidence that its fees were

reasonable and necessary, John Moore would still be entitled to a new trial. The

trial court considered and rejected John Moore’s argument that the fees could not

be properly determined piecemeal. In other words, the Houston BBB’s fees

relating to its original motion to dismiss are excessive considering that John

Moore’s antitrust theories are valid and supportable. Furthermore, the amount of

fees is contrary to justice and equity for the same reason. Therefore, a new trial

should be granted in the alternative.

25
 PRAYER

WHEREFORE, PREMISES CONSIDERED, John Moore Services, Inc. and

John Moore Renovation, LLC respectively request that this Court reverse the

judgment of the trial court and render judgment that Appellee take nothing. In the

alternative, John Moore requests that the Court reverse the judgment of the trial

court and remand for a new trial on attorneys’ fees and on John Moore’s claims in

the second lawsuit. John Moore also requests all such other and further relief, in

law or in equity, to which it may be justly entitled.

26
Respectfully submitted,

/s/ Douglas Pritchett, Jr.
Douglas Pritchett, Jr.
State Bar No. 24007877
dpritchett@johnsontrent.com
JOHNSON, TRENT, WEST & TAYLOR, L.L.P.
919 Milam Street, Suite 1700
Houston, Texas 77002
(713) 222-2323 (Telephone)
(713) 222-2226 (Facsimile)

BAKER, DONELSON, BEARMAN, CALDWELL
& BERKOWITZ, P.C.
Lori Hood
Texas Bar No. 09943430
lhood@bakerdonelson.com
1301 McKinney Street, Suite 3700
Houston, Texas 77010
(713) 650-9700 (Telephone)
(713) 650-9701 (Facsimile)

ATTORNEYS FOR APPELLANTS
JOHN MOORE SERVICES, INC. AND
JOHN MOORE RENOVATION, LLC

27
 CERTIFICATE OF COMPLIANCE
This brief complies with the type-volume limitation of Texas Rule of

Appellate Procedure 9.4(i)(2)(B) because the brief contains 5,833 words, excluding

the parts exempted by Texas Rule of Appellate Procedure 9.4(i)(1).

This brief complies with the typeface and type style requirements of Texas

Rule of Appellate Procedure 9.4(e) because this brief has been prepared in a

proportionally spaced typeface using Microsoft Word in 14-point Times New

Roman font for text in the body and 12-point Times New Roman font for

footnotes.

/s/ Douglas Pritchett, Jr.
Douglas Pritchett, Jr.

CERTIFICATE OF SERVICE
On this the 20th day of April 2015, the foregoing was served on the
following persons by electronic service:

Lauren B. Harris
Jeffrey R. Elkin
M. Harris Stamey
Porter Hedges LLP
1000 Main Street, 36th Floor
Houston, Texas 77002
Attorneys for Appellants

/s/ Douglas Pritchett, Jr.
Douglas Pritchett, Jr.
406233

28
 Cause No. 01-14-00906-CV
__________________________________

IN THE COURT OF APPEALS
FOR THE FIRST DISTRICT OF TEXAS
HOUSTON, TEXAS

JOHN MOORE SERVICES, INC. AND JOHN MOORE RENOVATION, LLC,
Appellants,
v.
THE BETTER BUSINESS BUREAU OF METROPOLITAN HOUSTON, INC.,
Appellees.

APPENDIX

A. Original Petition (6-18-12)

B. Order Granting Motion for Continuance (10-11-13)

C. Notice of Hearing – Motion for Reconsideration (10-21-13)

D. Order Striking Amended Petition , Granting Motion for
Reconsideration (11-01-13)

E. Motion for Award of Attorneys’ Fees (4-11-14)

F. Second Amended Notice of Hearing – Motion for Award of
Attorneys’ Fees (5-27-14)

G. Order Setting Hearing on Award of Attorneys’ Fees (6-04-14)

H. Plaintiffs’ Response to Motion for Award of Attorneys’ Fees
(6-13-14)

I. Order Denying Defendant’s Motion for Award (6-19-14)

29
J. Defendant’s Motion for Entry of Judgment (8-04-14)

K. Plaintiffs’ Motion to Consolidate (8-07-14)

L. Notice of Hearing regarding Motion to Consolidate (8-07-14)

M. Order Granting Motion to Dismiss (8-11-14)

N. Charge of the Court (7-22-2014)

O. Final Judgment (8-8-2014)

30
Exhibit A
 Filed 12 June 18 P2:54
Chris Daniel - District Clerk
Harris County
2012-35162 / Court: 269 ED101J016933517
By: Charleta Johnson

JOHN MOORE SERVICES, INC. and § IN THE DISTRICT COURT OF
JOHN MOORE RENOVATION, LLC §
§
v. §
§ HARRIS COUNTY, TEXAS
THE BETTER BUSINESS BUREAU OF §
METROPOLITAN HOUSTON, INC. §
§ JUDICIAL DISTRICT COURT

JOHN MOORE SERVICES, INC. AND JOHN MOORE RENOVATION, LLC's
ORIGINAL PETITION AND REQUEST FOR DISCLOSURE

TO THE HONORABLE JUDGE OF THIS COURT:

COME NOW, Plaintiffs, John Moore Services, Inc. and John Moore Renovation, LLC,

herein collectively referred to as "John Moore" or "Plaintiffs," in the above numbered and styled

cause, complaining of Defendant, The Better Business Bureau of Metropolitan Houston, Inc., herein

referred to as "Houston BBB" or "Defendant," and in support thereof would respectfully show the

Court as follows:

I. DISCOVERY LEVEL

Pursuant to Rule 190.4 of the Texas Rules of Civil Procedure, Plaintiffs request discovery

be conducted under Level 3.
CertifiedDocumentNumber:52536293-Page1of19

II. PARTIES

1. John Moore Services, Inc. is a for-profit corporation organized and existing under

the laws of the State of Texas, whose principal place of business is located in Harris County,

Texas.
 2. John Moore Renovation, LLC is a limited liability company organized and

existing under the laws of the State of Texas, whose principal place of business is located in

Harris County, Texas.

3. The Better Business Bureau of Metropolitan Houston, Inc. is a nonprofit

corporation organized and existing under the laws of the State of Texas, whose principal place of

business is in Harris County, Texas. Defendant Better Business Bureau of Metropolitan

Houston, Inc. may be served with citation and process by and through its Registered Agent,

William Parsons, at 1333 West Loop South, Suite 1200, Houston, Texas. Service is requested at

this time.

III. JURISDICTION AND VENUE

4. This Court has jurisdiction over the claims stated herein in that the amount

claimed by Plaintiffs exceeds the minimum jurisdictional limits of the Court.

5. Venue of this cause of action is proper in Harris County, Texas since all or part of

the causes of action set forth herein arose in Harris County, Texas.

IV. BACKGROUND FACTS

6. To gain a commercial advantage for its members, Defendant has published false

statements on its website about Plaintiffs. Defendant is not a government agency or one working

for the good of consumers. Defendant is putatively run by a board (of its own members) but is
CertifiedDocumentNumber:52536293-Page2of19

really tightly controlled by its President, Dan Parsons ("Parsons"). The Defendant and Parsons

deem it appropriate to rate direct competitors (who are not members) without any quantifiable

standards or research. In this instance, Defendant has impugned the character and reputation of

John Moore's business in a number of ways including publishing on its website that, based on

Defendant's presumably "independent and unbiased" ratings, John Moore has "an F rating

2
 currently at the BBB Houston and South Texas." This statement is false and directly impugns

John Moore's credibility, skill, professionalism, character, and reputation. Plaintiffs requested

Defendant remove the rating (for reasons detailed below). In response, Defendant changed its

website to indicate that John Moore has "No Rating," yet it maintains the "F" rating in the notes

section of the webpage and adds additional comments that wrongfully disparage Plaintiffs.

Defendant asserts a misguided claim of free speech, but Defendant's actions are commercial

speech, intended to obtain an economic benefit, and are false.

7. John Moore Services, Inc. ("John Moore") was formed in 1965 as a small

plumbing company. Today, it is one of Houston's largest family-owned and operated home

services company with over 500 employees, serving over a half million Texas homeowners. In

the past forty-seven (47) years, John Moore has grown from a modest Houston-based plumbing

company to a complete home services organization in the areas of Houston, Galveston, and

Bryan-College Station. John Moore specializes in air conditioning, heating, electrical, plumbing,

attic insulation, pest control, water damage restoration, custom windows and doors, home

security systems, lawn treatment systems and complete design/build services for home

remodeling.

8. Through the use of extensive advertising, John Moore has become a household

name in Houston and the surrounding areas. Over the years, John Moore has spent millions of
CertifiedDocumentNumber:52536293-Page3of19

dollars on advertisements, including advertising on the Internet, its company website, company

vehicles, radio, television, and print ads. John Moore's slogan, which is included in almost all of

its mediums of advertisements is, "Call John and Get Moore"-a catchphrase that John Moore

has turned into a memorable jingle in its radio and television advertisements.

3
 9. Because the household services market is so saturated and competitive in Houston

and the surrounding areas, John Moore has had to spend a great deal of money on research and

development ("R&D") to increase its market share and business. As a result of this R&D, John

Moore has not only invested millions in advertising but has also spent money to become a

member of the Better Business Bureau of Metropolitan Houston, the Better Business Bureau of

Bryan-College Station, and a member of the Better Business Bureau of Dallas.

10. The Council of Better Business Bureaus ("CBBB") is the national organization

for Better Business Bureaus ("BBB") in the United States and Canada. The CBBB is a nonprofit

organization whose stated mission is to instill consumer confidence in businesses, to contribute

to a "trustworthy marketplace for all," and to develop and administer self-regulation programs in

advertisements for the business community.

11. The CBBB supports 116 independent BBBs across the United States. According

to its advertising, these independent BBBs are supposed to serve their local communities by

rating businesses in their communities for the benefit of local consumers. These BBBs are run

by their dues-paying members. The Houston BBB has a board but the organization is controlled

and run with an iron fist by its long time President, Dan Parsons. BBBs review/rate both

accredited and non-accredited businesses. BBBs around the country have been accused,

including by the Connecticut Attorney General, of using the rating system for the benefit of
CertifiedDocumentNumber:52536293-Page4of19

companies who pay for membership. This is commonly known as "pay to play."

12. Being an "accredited" business in a BBB is equivalent to saying that a business is

a "member" of that BBB. Accredited simply means that a company applied to become a

member, paid their fee to join, and is now a "member" of a BBB. BBBs take it upon themselves

to rate members as well as nonmembers. This is the ultimate in "pay to play" since members

4
 rate nonmembers including those that are direct competitors under the theory that the BBB

knows best.

13. The Better Business Bureau of Metropolitan Houston, Inc. ("Houston BBB") is

one of the 116 BBBs supported by the CBBB. The Houston BBB provides services for its

member businesses located in Houston and the surrounding areas.

14. John Moore was a member in good standing of the Houston BBB for thirty-one

(31) years from 1971through2010. The CBBB implemented a new letter rating system in 2009.

John Moore was consistently rated an A+ Accredited Business and received the Better Business

Bureau Education Foundation's ("Education Foundation") Award for Excellence for eight (8)

consecutive years.

15. John Moore was the recipient of the Award of Excellence from the years 2003-

2010. Throughout all of the years that John Moore won the Award for Excellence, there were

never any restrictions on advertising the award, including no restriction for the length of time a

business could advertise the receipt of an Award ofExcellence. 1

16. In fact, during the years John Moore won the Award of Excellence, John Moore

was strongly encouraged by the Vice President of Marketing for the BBB and by the executive

director of the Education Foundation to prominently display the Award of Excellence name and

logo on all of John Moore's mediums of advertising. The Education Foundation encouraged
CertifiedDocumentNumber:52536293-Page5of19

award recipients to prominently advertise its name and logo in order to increase the interest of

local businesses and consumers in its awards competition. In fact, the Education Foundation

even provided the artwork needed for winners to advertise their success. Even after John Moore

1
In May of 2011, after John Moore had won its 2010 Award of Excellence, the Education Foundation began
imposing restrictions on the advertisement of the Award of Excellence. These restrictions were not in place at
anytime when John Moore won the award. In fact, discussions between the Education Foundation and the CBBB
concluded that the new restrictions could not be made retroactive.

5
 parted ways with the Houston BBB, the Vice President of Marketing for the BBB and the

Education Foundation encouraged John Moore to continue advertising its awards. As a result,

John Moore spent millions of dollars advertising with the Awards of Excellence.

17. In its last three years as a member of the Houston BBB, John Moore was rated as

an A+ business, the highest rating possible, and in over thirty-one (31) years with the Houston

BBB, John Moore never had a single unresolved complaint. Between 2006 and 2009, John

Moore grew at an annual rate of 35%. This significant increase in business led to a proportional

increase in consumer complaints, all of which were settled by John Moore. For reasons not

related to the CBBB nationally prescribed formula for rating businesses, the Houston BBB on

two different occasions arbitrarily changed the "A+" rating for John Moore to "Not Rated" and

then back to "A+," effectively punishing John Moore for matters unrelated to its treatment of

customers. Plaintiffs complained about the matter to Parsons. Parsons refused to address the

matter. This rating change was in direct violation of the mathematical formula established by the

CBBB for published ratings of businesses.

18. After these arbitrary ratings were made, the Houston BBB Membership

Committee held a meeting to discuss the membership qualification of John Moore. 2 This

meeting included a discussion of the increase in the number of complaints filed against John

Moore-an increase in complaints that was proportional to John Moore's growth rate over the
CertifiedDocumentNumber:52536293-Page6of19

years, a factor the Houston BBB Membership Committee at the urging of Parsons did not take

into consideration, which was in violation of the rating scale established by the CBBB. The

Houston BBB Membership Committee meeting was conveniently led and steered by the owner

of a direct major competitor of John Moore. The Houston BBB Membership Committee decided

2
Defendant's webpage for John Moore admits that the Houston BBB was voting to revoke John Moore's
membership when John Moore resigned.

6
 to end John Moore's membership status with the Houston BBB, but before this ruling was

referred to the full Executive Committee of the BBB and then to the full Board of Directors for a

proper vote and before John Moore could appeal the biased decision under CBBB regulations,

the Chairman of the Board of the Houston BBB and Parsons threatened John Moore that if John

Moore tried to appeal this decision and did not quickly accept the vote, John Moore would pay a

heavy price.

19. Rather than engage in a war with media darling Parsons, John Moore

involuntarily resigned from the Houston BBB on November 23, 2010. 3 John Moore then applied

for relocation of its headquarters for membership with the Bryan-College Station BBB. After

conferring with the Houston BBB, the Bryan-College Station BBB accepted and approved John

Moore's application to upgrade its regular membership to headquarter status. John Moore was a

member of the Bryan-College Station BBB with an A+ rating from November 2010 up until

April 20, 2012. At that time Houston BBB by and through Parsons interfered and John Moore's

Bryan-College Station headquarter status was revoked and sent back to the Houston BBB.

Throughout 2011, John Moore had an A+ rating with the Bryan-College Station BBB with no

complaints from the Houston BBB. John Moore was then accepted for membership April 10,

2012 to the Dallas BBB. John Moore's Dallas rating was an A+.

20. A full year after John Moore's involuntary resignation from the Houston BBB,
CertifiedDocumentNumber:52536293-Page7of19

and after a full year of A+ ratings from the Bryan-College Station BBB, the Houston BBB and

the Education Foundation filed a lawsuit in federal court against John Moore for, among other

things, trademark infringement. The lawsuit complains of John Moore's advertisements, which

display the Awards of Excellence logo received by John Moore.

3 Defendant John Moore Renovation, LLC was removed by the Houston BBB sometime after November 23, 2010.

7
 21. After the filing of its federal complaint and during the time John Moore had been

an accredited A+ member of the Bryan-College Station BBB, the Houston BBB has continued to

maintain a listing for John Moore on its website. Instead of placing the "usual neutral" statement

on the website that John Moore is a business who is affiliated with the Bryan-College Station

BBB, the Houston BBB has written extensive libelous, disparaging, and untruthful commentary

under its John Moore listing. In effect, the Houston BBB has started a smear campaign against

John Moore.

22. First, the Houston BBB in bold and at the top of its John Moore listing page

states, "This Business is not BBB accredited," which is untrue, as John Moore is BBB accredited

with the Bryan-College Station BBB and the Dallas BBB. 4 John Moore went from being an

eight-time Awards of Excellence winner to no longer being an accredited business. The

statement that John Moore is not BBB accredited is inaccurate and misleading and has damaged

John Moore's reputation.

23. Even more suspect is the fact that John Moore went from being rated as an "A+"

business to an "F" rated business overnight and now to a "No Rating" business. In fact, the

Houston BBB does not even hide the reasoning for this sudden decline. Boldly listed on

Defendant's webpage for John Moore as one of the factors for the sudden and abrupt lowered

rating is the direct reference to the trademark litigation filed by Defendant in federal court
CertifiedDocumentNumber:52536293-Page8of19

against Plaintiffs. Specifically, Defendant complains in bold on the John Moore webpage of

John Moore's "ongoing and fraudulent use of its Awards For Excellence, service marks."

Defendant continues by admitting that "John Moore Services DID in fact participate, enter and

win the local awards that they display. However, this use of the marks for those awards is

4
Defendant now admits, in the notes section of its John Moore webpage, that John Moore is accredited in the
Bryan-College Station BBB, despite listing at the top of its John Moore page that "[t]his business is not BBB
accredited."

8
 clearly laid out and may ONLY be used by CURRENT Accredited Businesses in the BBB

service area in which the awards were won. John Moore Services has continuously violated the

stated rules for this logo use." This issue of whether or not the rules for the advertisement of the

Awards of Excellence is "clearly laid out" and that the awards may "only be used by

CURRENT Accredited Businesses in the BBB service area" is a disputed fact in the federal

litigation. It is clear that the Defendant is using its website to slander and disparage John

Moore's business, by changing John Moore's "A+" rating to an "F" rating then to "No Rating,"

as a direct result of the Defendant's federal lawsuit filed against Plaintiffs.

24. In April of 2012, Houston BBB continued its vendetta against Plaintiffs by

internally strong arming the Plaintiffs' headquarters away from Bryan-College Station BBB.

Houston BBB did this in contradiction with the CBBB national standards. Houston BBB now

maintains that it is the only BBB that can rate Plaintiffs, which means other BBBs are now

forced to adopt the Houston BBB rating for John Moore. In addition, the Houston BBB asserts

that it is the only BBB that is permitted to address Plaintiffs' consumer complaints.

25. The Houston BBB took its vendetta against John Moore one step further by

making false and disparaging statements against John Moore through its consumer phone lines.

Now, when consumers call the Houston BBB phone lines inquiring about John Moore, they are

being told that John Moore is not an accredited business and in fact, would never be an
CertifiedDocumentNumber:52536293-Page9of19

accredited business, reflecting the "F" rating and "No Rating" of the business on the website.

These slanderous statements by Houston BBB employees have damaged the reputation of John

Moore and will continue to damage the business of John Moore until it is stopped.

26. The Houston BBB is allegedly an independent rating agency whose mission is to

set standards for marketplace trust and to instill consumer confidence through its ratings.

9
 According to its website, the values of the BBB are to "[b]e honest and ethical in all of [their]

business activities;" "[t]reat everyone with integrity[,] . . . respect and dignity;" and

"communicate with honesty." The Houston BBB is not only in violation of state laws, but it is in

violation of its own mission statement and statement of values. The Houston BBB proudly

labels itself as the "guardian" of honesty and integrity in business practices while willfully

libeling and maligning John Moore who was an A+ rated business that has never had an

unresolved complaint with the Houston BBB.

27. Plaintiffs requested that the Houston BBB remove Plaintiffs from its website.

· Houston BBB refused.

28. Houston BBB's actions have caused and continue to cause irreparable damage to

the reputation of Plaintiffs.

V. CAUSES OF ACTION

A. TORTIOUS INTERFERENCE WITH EXISTING AND PROSPECTIVE BUSINESS RELATIONSHIPS

29. Plaintiffs adopt by reference and incorporate herein all factual allegations above.

30. Defendant has intentionally tortiously interfered with the existing and prospective

business of Plaintiffs. Defendant is attempting to apply retroactive restrictions on Awards of

Excellence won by John Moore in the years 2003-2010 in an effort to force John Moore to
CertifiedDocumentNumber:52536293-Page10of19

remove its advertisements which display that John Moore was the winner of the Awards of

Excellence for those years. The removal of the Awards of Excellence from John Moore's

company website, vehicles, television, radio, and print advertisements will cost John Moore

millions of dollars and will reflect poorly on its existing and prospective business relationships.

31. Defendant has also intentionally tortiously interfered by attempting to force

Plaintiffs from advertising that they are BBB members, even though Plaintiffs are members of

10
 other cities' BBBs. If Defendant is successful in forcing Plaintiffs to remove from their

company website, vehicles, television, radio, and print advertisements all references to Plaintiffs'

legitimate membership in the BBB, Plaintiffs will incur millions of dollars in expenses, and the

removal of the BBB name will reflect poorly on their existing and prospective business

relationships.

32. Further, Defendant has intentionally tortiously interfered by failing to adhere to

the CBBB's mathematical formula for determining John Moore's rating, which would have

taken, in fact, into account John Moore's compound annual growth rate of 35% between 2006

and 2010. Defendant took no standards into account when it gave Plaintiff an "F" rating and

"No Rating." Defendant has refused to adjust its formula, which if adjusted would reflect a

proportional increase in consumer complaints with the growth of John Moore, because

Defendant does not want John Moore's ratings to be high. In fact, overnight, John Moore went

from being an "A+" rated business to an "F" rated business to a "No Rated" business, all in

furtherance of Defendant's intent to tortiously interfere with Plaintiffs' existing and prospective

business relationships.

33. Similarly, Defendant has intentionally tortiously interfered by failing to adhere to

the CBBB's policy to exclude pricing complaints. Per the policies established by the CBBB, the
CertifiedDocumentNumber:52536293-Page11of19

Houston BBB is not supposed to include straight pricing complaints in a business' complaint

records, nor should it include pricing complaints in its overall rating of a business. However,

because of the Houston BBB' s desire to tortiously interfere with Plaintiffs' existing and

prospective business relationships, it has incorporated pricing complaints into its rating of John

Moore, thereby unfairly decreasing the rating of John Moore.

11
 34. In that same regard, Defendant has intentionally tortiously interfered by

deceptively listing that there are 294 complaints against John Moore, implying 131 of those

complaints occurred in the last twelve months, when Defendant had previously indicated there

were only two (2) complaints against John Moore. Further, these 294 complaints make up

pricing complaints and past complaints against John Moore, which have already been resolved.

The listing of 294 more complaints on Defendant's website was not done until after Defendant

filed a lawsuit against Plaintiffs in federal court. In John Moore's over thirty-one (31) years as a

member of the Houston BBB, it never had a single unresolved complaint.

35. Defendant has intentionally tortiously interfered by enlisting a smear campaign

against Plaintiffs on the Houston BBB website by writing extensive libelous, disparaging, and

untruthful commentary under its John Moore listing.

36. Defendant has intentionally tortiously interfered by untruthfully writing on the

Houston BBB website that Plaintiffs are not members of a BBB when in fact Plaintiffs are

members of other BBBs.

37. Defendant has intentionally tortiously interfered by untruthfully telling consumers

who call the Houston BBB phone lines that Plaintiffs are not accredited businesses and that

Plaintiffs would never be accredited businesses with the BBB.
CertifiedDocumentNumber:52536293-Page12of19

38. Further, Defendant has intentionally tortiously interfered by unjustifiably and

maliciously changing John Moore's rating on its website from "A+" to "F" then to "No Rating"

in furtherance of Defendant's intent to tortiously interfere with Plaintiffs' existing and

prospective business relationships. The downgrade of John Moore's rating was predetermined

based on Defendant's federal lawsuit.

12
 39. Defendant's conduct and communications reflect that it will continue to tortiously

interfere with Plaintiffs' business if not enjoined from doing so by this Court.

40. As a result of Defendant's tortious interference, Plaintiffs have already suffered

and will continue to suffer harm to their existing and prospective business relationships. If

Defendant's are not enjoined, Plaintiffs' harm will be irreparable both financially as well as to

their business reputations, including lost goodwill, lost revenues, and loss of value to Plaintiffs'

business in an amount which currently exceeds the minimal jurisdictional limits of this Court.

41. In addition, because the tortious acts were committed intentionally, willfully and

maliciously, Defendant should be held liable for exemplary damages.

B. FRAUD

42. Plaintiffs adopt by reference and incorporate herein all factual allegations above.

43. Defendant, among other things, falsely represented to (1) John Moore that it could

continue advertising its receipt of the Awards of Excellence, even after John Moore was no

longer a member of the Houston BBB, by not placing any restrictions on the awards when they

were given to John Moore from 2003 through 2010; (2) Plaintiffs that Plaintiffs cannot advertise

with the BBB trademark(s), registered to the Council of Better Business Bureaus, Inc., since they

are no longer members of the Houston BBB; (3) Plaintiffs that the Houston BBB would not
CertifiedDocumentNumber:52536293-Page13of19

count price complaints in a business' complaint record nor would the Houston BBB factor price

complaints into the overall rating of a business; (4) Plaintiffs that the Houston BBB is an

independent and unbiased rating agency; and (5) Plaintiffs that the Houston BBB follows its

mission statement and values statement that claims the Houston BBB's goal is to "[b]e honest

and ethical in all of its business activities;" "[t]reat everyone with integrity[,] ... respect and

dignity;" and "communicate with honesty."

13
 44. Defendant made these false representations to Plaintiffs knowingly and with the

intent to deceive Plaintiffs. Plaintiffs reasonably and justifiably relied on the representations

made by the Defendant to their detriment. As a direct and proximate result of their reasonable

and justifiable reliance on the representations made by Defendant, Plaintiffs have suffered and

will continue to suffer damages in an amount to be determined at trial.

C. BUSINESS DISPARAGEMENT

45. Plaintiffs adopt by reference and incorporate herein all factual allegations above.

46. Defendant published disparaging words about Plaintiffs' economic interests that

were false. Specifically, Defendant published false statements on its website, including this

statement on John Moore's page: "This Business is not BBB accredited[,]" impugning the

character and reputation of John Moore's business. Defendant has also published on its website

that based on Defendant's presumably "independent and unbiased" ratings, John Moore has "an

F rating currently at the BBB Houston and South Texas." This statement is false and directly

impugns John Moore's credibility, skill, professionalism, character, and reputation.

47. Defendant maliciously published these statements and without privilege. These

false and malicious communications have played a substantial part in inducing existing and

prospective consumers from hiring Plaintiffs to perform their home services needs. The Better
CertifiedDocumentNumber:52536293-Page14of19

Business Bureau name is generally widely recognized and trusted. By falsely explaining on the

John Moore listing that John Moore is "F" rated, Defendant has effectively steered all consumers

away from hiring John Moore whose financial health depends on the services it provides to

consumers. Plaintiffs have been directly harmed and will continue to suffer damages in an

amount to be determined at trial.

14
 D. DEFAMATION

1. Libel

48. Plaintiffs adopt by reference and incorporate herein all factual allegations above.

49. Defendant published false and defamatory statements of fact about Plaintiffs on

its website. Specifically, Defendant published the following false fact on the John Moore link on

their website: "This Business is not BBB accredited."

50. The statement is false because John Moore is a member ("accredited") in other

BBBs. John Moore may not be a member ("accredited") by the Houston BBB, but it is a

member ("accredited") by a BBB.

51. This statement is defamatory as libel because it is a written statement that injures

the reputation of John Moore by falsely informing the public that John Moore is not BBB

accredited. This statement, at a minimum, is defamatory on its face.

52. Defendant also published on its website that, based on Defendant's presumably

"independent and unbiased" ratings, John Moore has "an F rating currently at the BBB Houston

and South Texas."

53. This statement is false because Defendant's rating of John Moore was not based

on an independent and unbiased rating scale. In fact, Defendant directly disobeyed the

mathematical formula provided to it by the CBBB when rating John Moore with an "F" rating.
CertifiedDocumentNumber:52536293-Page15of19

The rating is supposed to be based on John Moore's services, not on Defendant's own vendetta

against Plaintiffs, which is evidenced by Defendant's federal complaint.

54. This statement is defamatory as libel because it is a written statement that injures

the reputation of John Moore by falsely informing the public that based on an unbiased rating

15
 scale, John Moore went from being "A+" rated one day to "F" rated the next then to "No Rating"

the next. This statement, at a minimum, is defamatory on its face.

55. Defendant acted with actual malice and, at a minimum, with negligence in writing

these false and defamatory statements.

56. As a direct and proximate result of Defendant's words, Plaintiffs have been

injured, and their injuries will be irreparable both financially as well as to their business

reputations, including lost goodwill, lost revenues, and loss of value to Plaintiffs' businesses in

an amount which currently exceeds the minimal jurisdictional limits of this Court.

2. Slander

57. Plaintiffs re-allege and incorporate by reference all preceding paragraphs.

58. Defendant published through oral communication slanderous statements to

consumers, including existing and prospective customers of Plaintiffs. Specifically, Defendant's

employees, who received their information from Defendant, made and continue to make false

and disparaging statements about Plaintiffs to consumers who call the Defendant's phone lines.

When consumers call the Houston BBB phone lines inquiring about Plaintiffs, they are being

told by Defendant's employees that Plaintiffs are not accredited businesses and in fact, would

never be accredited businesses.
CertifiedDocumentNumber:52536293-Page16of19

59. These statements are false, as explained previously, because Plaintiffs are

members ("affiliates") of a BBB.

60. These statements are defamatory as slander because they are spoken to third

parties and injure the reputation of Plaintiffs by falsely informing the public that Plaintiffs are

not BBB accredited. These statements, at a minimum, are defamatory on their face.

16
 61. Defendant acted with actual malice and, at a mm1mum, with negligence m

speaking these false and defamatory statements.

62. As a direct and proximate result of Defendant's words, Plaintiffs have been

injured, and their injuries will be irreparable both financially as well as to their business

reputations, including lost goodwill, lost revenues, and loss of value to Plaintiffs' businesses in

an amount which currently exceeds the minimal jurisdictional limits of this Court.

E. EQUITABLE REMEDIES

63. Plaintiffs re-allege and incorporate by reference all preceding paragraphs.

64. The acts of Defendant are not merely unfair, but represent a deliberate, calculated

and malicious course of action to unlawfully harm the business and goodwill of Plaintiffs.

Additionally, Defendant benefitted from Plaintiffs' extensive advertisement of the Award of

Excellence and the BBB organization. In fact, the Education Foundation encouraged award

recipients to prominently advertise its name and logo in order to increase the interest of local

businesses and consumers in its awards competition. Even after John Moore parted ways with

the Houston BBB, the Education Foundation encouraged John Moore to continue advertising its

awards to promote interest in the awards. In fact, during all the years that John Moore used the

awards logo in its advertising, participation in the awards competition has grown significantly

and steadily. The BBB Education Foundation has benefitted from John Moore's advertising of
CertifiedDocumentNumber:52536293-Page17of19

the awards through the logo.

65. On equitable grounds, Defendant should not be allowed to be unjustly enriched at

the expense of Plaintiffs. Plaintiffs are entitled to temporary and permanent relief, and to recover

their actual damages, including reasonable attorneys' fees, which are in excess of the minimum

jurisdictional limits of this Court.

17
 VI. JURY DEMAND

66. Plaintiffs demand a jury trial and tender the appropriate fee with this Petition.

VII. CONDITIONS PRECEDENT

67. All conditions precedent to Plaintiffs' claims for relief have been performed or

have occurred.

VIII. REQUEST FOR DISCLOSURES

Pursuant to Texas Rule of Civil Procedure 194, you are requested to disclose, within

thirty (30) days of the service of this request, the information or material described in Rule

194.2.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Plaintiffs, JOHN MOORE SERVICES,

INC. and JOHN MOORE RENOVATION, LLC, respectfully request that the Court issue

citation for the Defendant, THE BETTER BUSINESS BUREAU OF METROPOLITAN

HOUSTON, INC., and that, upon final trial, Plaintiffs, JOHN MOORE SERVICES, INC. and

JOHN MOORE RENOVATION, LLC, have judgment against Defendant, THE BETTER

BUSINESS BUREAU OF METROPOLITAN HOUSTON, INC., for damages in excess of the

minimum jurisdictional limits of this Court, including actual and punitive damages, pre and post

judgment interest thereon at the highest legal rate allowed, together with costs of Court,
CertifiedDocumentNumber:52536293-Page18of19

reasonable attorneys' fees and for such other and further relief, both general and specific, at law

and in equity, to which Plaintiffs may show themselves justly entitled.

18
 Respectfully submitted,

JOHNSON, TRENT, WEST & TAYLOR, LLP

By: Lod. M I ¥f?C,
Lori Hood I
State Bar No. 09943430
Brian P. Johnson
Texas Bar No. 10685700
919 Milam Street, Suite 1700
Houston, Texas 77002
(713) 222-2323
(713) 222-2226 (facsimile)
lhood@johnsontrent.com
bjohnson@johnsontrent.com

Attorneys for Plaintiffs, John Moore
Services, Inc. and John Moore
Renovation, LLC
CertifiedDocumentNumber:52536293-Page19of19

19
 I, Chris Daniel, District Clerk of Harris
County, Texas certify that this is a true and
correct copy of the original record filed and or
recorded in my office, electronically or hard
copy, as it appears on this date.
Witness my official hand and seal of office
this April 20, 2015

Certified Document Number: 52536293 Total Pages: 19

Chris Daniel, DISTRICT CLERK
HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated
documents are valid. If there is a question regarding the validity of this document and or seal
please e-mail support@hcdistrictclerk.com
Exhibit B
 Filed 13 October 04 A10:50
Chris Daniel - District Clerk
Harris County
~F~
ED101 J017752205
By: Jerri Coble
NO. 2012-35162 LFILX
JOHN MOORE SERVICES, INC. and § IN THE DISTRICT COURT OF
JOHN MOORE RENOVATION, LLC §
§
v. §
§ HARRIS COUNTY, TEXAS
THE BETTER BUSINESS BUREAU OF §
METROPOLITAN HOUSTON, INC., ET AL. §
§ 269th JUDICIAL DISTRICT COURT

ORDER

On this day came on to be heard Plaintiffs' Motion for Continuance and to Extend the

Deadlines in the Docket Control Order. After considering the motion and reviewing the

pleadings on file, the Court is of the opinion that the motion should be GRANTED. It is

therefore,

ORDERED, that this case be reset for trial on the two week trial docket beginning on

JUDGE PRESIDING
CertifiedDocumentNumber:57785942-Page1of1

256783
 I, Chris Daniel, District Clerk of Harris
County, Texas certify that this is a true and
correct copy of the original record filed and or
recorded in my office, electronically or hard
copy, as it appears on this date.
Witness my official hand and seal of office
this April 20, 2015

Certified Document Number: 57785942 Total Pages: 1

Chris Daniel, DISTRICT CLERK
HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated
documents are valid. If there is a question regarding the validity of this document and or seal
please e-mail support@hcdistrictclerk.com
Exhibit C
 Filed 13 October 21 P5:58
Chris Daniel - District Clerk
Harris County
ED101J017781339
By: Jerri L. Coble

CAUSE NO. 2012-35162

JOHN MOORE SERVICES, INC. and § IN THE DISTRICT COURT OF
JOHN MOORE RENOVATION, LLC §
§
V. § HARRIS COUNTY, TEXAS
§
THE BETTER BUSINESS BUREAU OF §
METROPOLITAN HOUSTON, INC. §
§ 269TH JUDICIAL DISTRICT COURT

NOTICE OF HEARING

Please take notice that Defendant The Better Business Bureau of Metropolitan Houston,

Inc.’s Motion for Reconsideration and to Vacate Prior Rulings, Strike Plaintiffs’ Amended

Petition, and Quash Discovery has been set for oral hearing before the 269th Judicial District

Court, Harris County, Texas, on Friday, November 1, 2013, at 10:00 a.m.

Dated: October 21, 2013.

Respectfully submitted,

PORTER HEDGES LLP

/s/ Jeffrey R. Elkin
By: Jeffrey R. Elkin
State Bar No. 06522180
jelkin@porterhedges.com
M. Harris Stamey
State Bar No. 24060650
hstamey@proterhedges.com
Jonna N. Summers
State Bar No. 24060649
jsummers@porterhedges.com
1000 Main Street, 36th Floor
CertifiedDocumentNumber:57898801-Page1of2

Houston, Texas 77002
(713) 226-6617 – Office
(713) 226-6217 – Fax

ATTORNEYS FOR DEFENDANT, THE BETTER
BUSINESS BUREAU OF METROPOLITAN
HOUSTON, INC.

1
3486979v1
 CERTIFICATE OF SERVICE

I certify that a true and correct copy of foregoing document has been served upon all
counsel of record on the 21st day of October 2013, as follows:

Lori Hood ☐ By facsimile transmission
Tamara Madden ☒ By electronic transmission
919 Milam Street, Suite 1700 ☐ By deposit in the United States Mail
Houston, TX 77002
☒ By CMRRR
(713) 222-2323 (telephone)
(713) 222-2226 (facsimile) ☐ By hand-delivery
lhood@johnsontrent.com
tmadden@johnsontrent.com
Attorneys for Plaintiffs, John Moore
Services, Inc. and John Moore Renovation,
LLC

/s/ Jeffrey R. Elkin
Jeffrey R. Elkin
CertifiedDocumentNumber:57898801-Page2of2

2
3486979v1
 I, Chris Daniel, District Clerk of Harris
County, Texas certify that this is a true and
correct copy of the original record filed and or
recorded in my office, electronically or hard
copy, as it appears on this date.
Witness my official hand and seal of office
this April 20, 2015

Certified Document Number: 57898801 Total Pages: 2

Chris Daniel, DISTRICT CLERK
HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated
documents are valid. If there is a question regarding the validity of this document and or seal
please e-mail support@hcdistrictclerk.com
Exhibit D
 CAUSE NO. 2012-35162

JOHN MOORE SERVICES, INC. and § ~THE DISTRICT COURT OF
JOHN MOORE RENOVATION, LLC
Plaintiffs, F 1hr!-'o!e1D
v. tl1trlct Clerk HARRIS COUNTY, TEXAS

THE BETTER BUSINESS BUREAU OF Ol Z0 ~V 13
METROPOLITAN HOUSTON, INfiroe: _....:~k~~:=:-----
Defendant. !:irris ooun·~~9if'H .JUQICIAL DISTRICT COURT
By B~pmy

ORDER GRANTING DEFENDANT'S MOTION FOR RECONSIDERATION AND TO
VACATE PRIOR RULINGS, STRIKE PLAINTIFFS' AMENDED PETITION. AND
QUASH DISCOVERY

Before the Court is Defendant The Better Business Bureau of Metropolitan Houston,

Inc.'s Motion for Reconsideration and to Vacate Prior Rulings, Strike Plaintiffs' Amended

Petition, and Quash Discovery ("the Motion"). Having considered the Motion, any response and

reply thereto, the pleadings, and the applicable law, the Court finds that the Motion should be,

and hereby is, GRANTED in its entirety. It is, therefore,

ORDERED'that Plaintiff's First Amended Original Petition is stricken in its entirety. It

is further,

ORDERED that the Order on Plaintiffs' Motion for Continuance and to Extend the

Deadlines in the Docket Control Order signed October 11, 2013, is hereby vacated. It is further,
CertifiedDocumentNumber:58115848-Page1of2

ORDERED that the Trial Preparation Order signed October 11, 2013, is hereby vacated.

It is further,

ORDERED that the Docket Control Order signed October 15, 2013, is hereby vacated. It

is further,

ORDERED that Defendant The Better Business Bureau of Metropolitan Houston, Inc. is

not required to respond or object to Plaintiffs' Second Request for Production to Defendant

1
 Better Business Bureau of Metropolitan Houston, Inc. until further order of this Court, if any. It

is further,

ORDERED that Plaintiffs' Notice of Intention to Take Deposition on Written Questions

of American Residential Services a/k/a ARS Rescue Rooter ("ARS") and subpoena duces tecum

is hereby quashed in its entirety and that Plaintiffs are required to immediate Iy notify ARS of

same.

SIGNED this 1!!.__ day of ~~, 2013.
- ~
JUDGE PRESIDING
CertifiedDocumentNumber:58115848-Page2of2

2
3484638
 I, Chris Daniel, District Clerk of Harris
County, Texas certify that this is a true and
correct copy of the original record filed and or
recorded in my office, electronically or hard
copy, as it appears on this date.
Witness my official hand and seal of office
this April 20, 2015

Certified Document Number: 58115848 Total Pages: 2

Chris Daniel, DISTRICT CLERK
HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated
documents are valid. If there is a question regarding the validity of this document and or seal
please e-mail support@hcdistrictclerk.com
Exhibit E
 4/11/2014 7:27:14 PM
Chris Daniel - District Clerk Harris County
Envelope No. 978599
By: GAYLE FULLER

CAUSE NO. 2012-35162

JOHN MOORE SERVICES, INC. and § IN THE DISTRICT COURT OF
JOHN MOORE RENOVATION, LLC §
Plaintiffs, §
v. § HARRIS COUNTY, TEXAS
§
THE BETTER BUSINESS BUREAU OF §
METROPOLITAN HOUSTON, INC. §
Defendant. § 269TH JUDICIAL DISTRICT COURT

DEFENDANT THE BETTER BUSINESS BUREAU OF
METROPOLITAN HOUSTON, INC.'S MOTION FOR AWARD OF ATTORNEYS'
FEES, COURT COSTS, EXPENSES, AND SANCTIONS AND
FOR ENTRY OF FINAL JUDGMENT

Defendant The Better Business Bureau of Metropolitan Houston, Inc. ("Houston BBB")

files this Motion for Award of Attorneys' Fees, Court Costs, and Expenses, and Sanctions, and

for Entry of Final Judgment, and in support thereof would show the Court as follows:

I. THE HOUSTON BBB IS ENTITLED TO RECOVER ITS FEES, COURT COSTS, EXPENSES,
AND SANCTIONS UNDER CHAPTER 27.

Pursuant to Chapter 27 of the Texas Civil Practice and Remedies Code ("Chapter 27"),

the Houston BBB moves to recover its reasonable and necessary attorneys' fees, court costs, and

expenses incurred in defending this legal action brought by Plaintiffs John Moore Services, Inc.

and John Moore Renovation, LLC (collectively "John Moore"). The Houston BBB also seeks at
CertifiedDocumentNumber:60397672-Page1of11

least $50,000 in sanctions to deter John Moore from bringing similar actions in the future.

Section 27.009(a) of the statute provides that "[i]f the court orders dismissal of a legal

action under this chapter, the court shall award to the moving party:

(1) court costs, reasonable attorney's fees, and other expenses incurred in
defending against the legal action as justice and equity may require;

1
3691198
 (2) sanctions against the party who brought the legal action as the court
determines sufficient to deter the party who brought the legal action from
bringing similar actions described in this chapter."

TEX. Crv. PRAC. & REM. CODE ANN.§ 27.009(a) (West 2014) (emphasis added).

On July 16, 2013, the First Court of Appeals held that the Houston BBB "satisfied its

burden under [Chapter 27] to show that John Moore's claims against it are based on, relate to, or

are in response to, the exercise of [its] free speech rights," and that John Moore "failed to sustain

its burden to show, by clear and specific evidence, a prima facie case for each essential element

of its claims .... " The Better Bus. Bureau of Metro. Houston, Inc. v. John Moore Servs., Inc., No.

01-12-00990-CV, 2013 WL 3716693, *12 (Tex. App.-Houston [1st Dist.] 2013, pet. denied).

It "remand[ed] the case to the trial court for further proceedings" under Section 27.009(a) of

Chapter 27. Id. 1 Upon remand, the trial court is to grant the "motion[] to dismiss and award [the

defendant] reasonable attorney's fees and court costs in accordance with section 27.009(a)."

Fitzmaurice v. Jones, 417 S.W.3d 627, 634 (Tex. App.-Houston [14th Dist.] 2013, no pet.).

A. The Award of Fees, Costs, and Expenses to the Houston BBB is Mandatory,
Equitable, and Just.

It has been established that this legal action against the Houston BBB improper! y

interfered with the Houston BBB's exercise of its right to free speech, and that John Moore did

not have sufficient evidence to present even a prima facie case in support of its claims. John
CertifiedDocumentNumber:60397672-Page2of11

Moore Servs., Inc., 2013 WL 3716693 at *12. As a result, under Section 27.009(a), the award of

attorneys' fees, costs, and expenses to the Houston BBB is mandatory. TEX. Crv. PRAC. & REM.

CODE ANN. § 27.009(a); Sierra Club v. Andrews County, 418 S.W.3d 711, 720 (Tex. App.-El

Paso 2013, pet. filed) ("As the prevailing party, Sierra Club is entitled [under Chapter 27] to an

John Moore's petition for review to the Texas Supreme Court was denied on February 14, 2014, and mandate
issued from the First Court of Appeals on April 3, 2014. See Exhibit A, Mandate.

2
3691198
 award of reasonable attorney's fees and costs established by the evidence."); Alphonso v.

Deshotel, 417 S.W.3d 194, 200 (Tex. App.-El Paso 2013, no pet.) ("[Chapter 27] mandates the

award of attorney's fees and costs to a successful movant."); see also Bocquet v. Herring, 972

S.W.2d 19, 20--21 (Tex. 1998) ("Statutes providing that a party 'may recover,' 'shall be

awarded', or 'is entitled to' attorney fees are not discretionary."). 2

Moreover, during the course of this legal action, John Moore refused to take reasonable

steps to limit the litigation costs; e.g., John Moore refused to agree to stay discovery during the

pendency of the Houston BBB's interlocutory appeal, John Moore served extensive written

discovery on the Houston BBB including seventy-six (76) separate requests for documents which

required the Houston BBB to review and produce over 5,000 pages of documents, and John

Moore attempted to add causes of action and defendants to the lawsuit even after the First Court

of Appeals ruled in favor of the Houston BBB and a mandatory statutory stay of all proceedings

was in place. 3 Given that the Houston BBB prevailed in the face of John Moore's conduct, the

award of fees, costs, and expenses is equitable and just under the circumstances.

B. The Attorneys' Fees, Court Costs, and Expenses Incurred by the Houston BBB are
Reasonable and Necessary.

The Houston BBB submits the affidavit of its attorney-in-charge, Jeffrey R. Elkin, along

with all of the invoices reflecting the legal work performed by Porter Hedges LLP ("Porter
CertifiedDocumentNumber:60397672-Page3of11

Hedges") on behalf of the Houston BBB in connection with this legal action as evidence of the

2
Citi1tg D.F. W. Christia1t Television, Inc. v. Thornton, 933 S.W.2d 488, 490 (Tex.1996) (applying TEX. C1v.
PRAC. & REM.CODE§ 38.001(8)); Arthur Anderse1t & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997)
(discussing "reasonable and necessary attorneys' fees" under TEX. Bus. & COM. CODE§ 17.50(d)); Ragsdale v.
Progressive Voters League, 790 S.W.2d 77, 86 (Tex. App.-Dallas 1990), aff'd in part and rev'd in part Oil other
grounds, 801 S.W.2d 880 (Tex.1990) (applying former TEX. ELEC. CODE§ 251.008, recodified as§ 253.131).
3
Plaintiffs' First Amended Petition ("Amended Petition") was filed on September 27, 2013 (attached as Exhibit
B), two months after the July 16, 2013 decision by the First Court of Appeals (Ex. A, Mandate).

3
3691198
 reasonable and necessary attorneys' fees, court costs, and expenses incurred by the Houston

BBB. See Exhibit C, Affidavit of Jeffrey Elkin ("Elkin Aff."), with Invoices attached as Ex. 2.

Whether fees are reasonable and necessary is a question of fact. Bocquet, 972 S.W.2d at

20-21. The Texas Supreme Court has delineated the following factors courts must consider

when determining the reasonableness of a fee:

(a) the time and labor required, the novelty and difficulty of the questions
involved, and the skill required to perform the legal service properly;

(b) the likelihood ... that the acceptance of the particular employment will
preclude other employment by the lawyer;

(c) the fee customarily charged in the locality for similar legal services;

(d) the amount involved and the results obtained;

(e) the time limitations imposed by the client or by the circumstances;

(f) the nature and length of the professional relationship with the client;

(g) the experience, reputation, and ability of the lawyer or lawyers
performing the services; and

(h) whether the fee is fixed or contingent on results obtained or uncertainty
of collection before the legal services have been rendered.

Arthur Andersen & Co. v. Perry Equip. C01p., 945 S.W.2d 812, 818 (Tex. 1997) (citing TEX.

DISCIPLINARY R. OF PROF'L CONDUCT 1.04, reprinted in TEX. Gov'T CODE, tit. 2, subtit. G app.

(STATE BAR RULES art. X, § 9)). "A litigant need not present evidence on each of these factors.
CertifiedDocumentNumber:60397672-Page4of11

The trial court may also consider the entire record, the evidence presented on reasonableness, the

amount in controversy, the common knowledge of the participants as lawyers and judges, and the

4
3691198
 relative success of the parties." Weaver v. Jamar, 383 S.W.3d 805, 814 (Tex. App.-Houston

[14th Dist.] 2012, no pet.). 4

The reasonableness of a fee can be established as a matter of law where clear, direct, and

uncontroverted evidence is submitted and the opposing party fails to disprove the testimony

despite having had the opportunity to do so. Cleveland v. Taylor, 397 S.W.3d 683, 701 (Tex.

App.-Houston [1st Dist.] 2012, pet. denied). Since this action was filed on June 18, 2012, the

Houston BBB has incurred $390,858.35 in legal fees, $62.35 in court costs, and $6,237 .77 in

expenses defending against John Moore's claims. Ex. C, Elkin Aff. 1111 8, 11. The fees, costs,

and expenses are broken out on a monthly basis as follows:

Month/Year Fees Court Costs Expenses Monthly Totals
June 2012 $4,017.50 $0.00 $0.00 $4,017.50
July 2012 $11,224.50 $0.00 $132.01 $11,356.51
Au011st 2012 $37,314.50 $28.00 $155.80 $37,498.30
September 2012 $25,056.00 $0.00 $481.79 $25,537.79
October 2012 $7,017.00 $2.35 $40.80 $7,675.15
November 2012 $459.50 $0.00 $581.32 $1,040.82
December 2012 $4,109.00 $0.00 $70.64 $4,179.64
2012 Total $89,198.00 $30.35 $1,462.36 $91,305.71
January 2013 $29,035.00 $0.00 $235.48 $29,270.48
February 2013 $62,205.25 $0.00 $827.01 $63,032.26
March2013 $22,745.50 $19.00 $443.60 $23,208.10
April 2013 $41,732.10 $0.00 $1,474.92 $43,207.02
May2013 $34,886.00 $13.00 $251.26 $35,150.26
June 2013 $5,751.50 $0.00 $55.22 $5,806.72
July 2013 $12,927.50 $0.00 $0.00 $12,927.50
CertifiedDocumentNumber:60397672-Page5of11

AuQUst 2013 $3,727.50 $0.00 $0.00 $3,727.50
September 2013 $4,177.50 $0.00 $0.00 $4,177.50
October 2013 $46,198.50 $0.00 $268.17 $46,466.67
November 2013 $5,837.50 $0.00 $125.76 $5,963.26
December 2013 $11,553.00 $0.00 $595.42 $12,148.42
2013 Total $280,776.85 $32.00 $4,276.84 $285,085.69
January 2014 $13,348.50 $0.00 $498.57 $13,847.07
4
Citing Acad. Co1p. v. Interior Buildout & Turnkey Constr., Inc., 21 S.W.3d 732, 742 (Tex. App.-Houston
[14th Dist.] 2000, no pet.); Rapid Settlements, Ltd. v. Settlement Funding, LLC, 358 S.W.3d 777, 786 (Tex. App.-
Houston [14th Dist.] 2012, no pet.).

5
3691198
 Month/Year Fees Court Costs Exnenses Monthlv Totals
February 2014 $821.50 $0.00 $0.00 $821.50
March 2014 $6,713.50 $0.00 $0.00 $6,713.50

GRAND TOTAL $390,858.35 $62.35 $6,237.77 $397' 773.47

Id. A detailed description of the professional services performed by Porter Hedges for the

Houston BBB on a day-to-day basis in defending against Plaintiffs' legal action is contained in

the monthly invoices attached to Mr. Elkin's affidavit. Id. at~ 9, Ex. 2.

In addition to the foregoing fees and expenses, the Houston BBB expects to incur at least

$30,000 in legal fees after March 31, 2014 in connection with (i) finalizing this motion; (ii)

reviewing and responding to any response filed by Plaintiffs; and (iii) preparing for and attending

a hearing on the motion, if required. Id. at ~ 12. In the event of an appeal of the fee award, the

Houston BBB seeks $50,000 for fees, costs, and expenses to defend the award in the court of

appeals, and an additional $50,000 if a petition for review is filed in the Texas Supreme Court.

Id.

As explained in Mr. Elkin's affidavit, based on the knowledge and professional

experience he has gained as a commercial trial attorney practicing in Harris County, Texas for

the past 26 years, the circumstances of the case including the novelty and complexity of the

Chapter 27 motion practice, and the Arthur Andersen factors, the fees, expenses, and costs
CertifiedDocumentNumber:60397672-Page6of11

incurred by the Houston BBB in defending against John Moore's legal action are reasonable and

were necessary. Id. at~~ 13-31. It is also Mr. Elkin's professional opinion that the estimated

additional fees to be incurred in connection with this motion, any associated hearing, and an

appeal, if any, are reasonable based on the course and conduct of the litigation thus far and

should likewise be awarded by the Court in accordance with section 27.009(a). Id. at~~ 13-31.

6
3691198
 Because John Moore will be unable to offer any material evidence to the contrary, the Houston

BBB's fees, costs, and expenses should be awarded in full.

C. The Court Should Impose at least $50,000 in Sanctions Against John Moore to
Deter It From Bringing Similar Actions.

In addition to attorneys' fees, "Section 27.009(a)(2) provides that if the court orders

dismissal, it 'shall award to the moving party ... sanctions against the party who brought the legal

action as the court determines sufficient to deter the party ... from bringing similar actions."'

Kinney v. ECG Attorney Search, Inc., 03-12-00579-CV, 2013 WL 4516106, *1 (Tex. App.-

Austin Aug. 21, 2013, no pet.) (mem. op.) (citing TEX. Crv. PRAC. & REM. CODE ANN. §

27.009(a)(2)).

An award of sanctions against John Moore is appropriate here because John Moore has

already demonstrated its continued willingness to try to improperly limit the Houston BBB's

legitimate exercise of its right of free speech. First, John Moore filed - more than two months

after the First Court of Appeals held that the Houston BBB's Motion to Dismiss should be

granted and that this legal action should, therefore, be dismissed - the Amended Petition which

improperly sought to join nine (9) new defendants and add thirteen (13) causes of action.

Compare Ex. A, Mandate to Ex. B, Amended Petition. The Amended Petition was based upon

the same set of facts alleged in its Original Petition, including the Houston BBB's business
CertifiedDocumentNumber:60397672-Page7of11

review and rating of John Moore. Ex. B. Amended Petition~~ 15-41.

Second, after the Court struck the Amended Petition due to John Moore's violation of the

statutory stay of all trial court proceedings (see TEX. Clv. PRAC. & REM. CODE ANN. §

51.014(b)), John Moore continued its attack on the Houston BBB's exercise of its right of free

speech by filing a new legal action (the "Second Legal Action") against the Houston BBB and its

officers and volunteer directors that is practically identical to the Amended Petition, arises out of

7
3691198
 the same set of core facts as John Moore's Original Petition here, and, importantly, centers

around the Houston BBB's exercise of its right of free speech through its business reviews and

ratings. See John Moore's First Amended Original Petition in Cause No. 2013-76215 ("New

Petition"), attached hereto as Exhibit D. 5 John Moore's filing of the Second Legal Action

demonstrates that sanctions need to be imposed to deter John Moore from continuing to interfere

with the Houston BBB's exercise of its right to free speech through publishing its business

reviews and ratings.

An award of $75,000 in sanctions pursuant to Chapter 27 was recently upheld by the

Austin Court of Appeals in a similar action where the plaintiff had filed a second lawsuit in

Texas after its claims were dismissed in California under California's version of the Anti-SLAPP

statute. Kinney, 2013 WL 4516106, *9-10, a copy of which is attached as Exhibit E. The

plaintiff in Kinney, like John Moore, had filed multiple actions against the defendant for the

same harm asserted under various legal theories, and in one of those actions a court had awarded

the defendant $45,000 in attorneys' fees. Id. at *10. Acknowledging that Section 27.009(a)(2)

"gives the trial court broad discretion to determine what amount is sufficient to deter the party

from bringing similar actions in the future[,]" the Austin Court of Appeals concluded that the

sanction of $75,000 had a direct relationship to the plaintiff's conduct and that the trial court did

not abuse its discretion in determining that a lesser sanction would have been insufficient to deter
CertifiedDocumentNumber:60397672-Page8of11

further actions by the defendant. Id.

Given that John Moore has demonstrated its intent to continue to file and prosecute

meritless lawsuits against the Houston BBB that improperly seek to restrict the Houston BBB's

5
Although Plaintiffs' Original Petition in Cause No. 2013-76215 was initially filed in the 129th Judicial District
Court of Harris County, Texas, the lawsuit was transferred upon the granting of an agreed motion by the parties to
this Court. As of the filing of this Motion, the Houston BBB 's Chapter 27 Motion to Dismiss in Cause No. 2013-
76215 is pending and set to be heard on May 23, 2014.

8
3691198
 exercise of its right of free speech (see Ex. A, Mandate; Ex. D, New Petition), and the fact that

the Houston BBB has already incurred over $90,000 in attorneys' fees in defending against the

Second Legal Action (Ex. C, Elkin Aff. at~ 31), an award of at least $50,000 in sanctions against

John Moore is necessary and appropriate under section 27.009(a)(2) to deter John Moore from

bringing any subsequent legal actions prohibited by Chapter 27.

II. CONCLUSION AND PRAYER

Plaintiffs' lawsuits against the Houston BBB are precisely the type of legal actions that

Chapter 27 is designed to discourage. The First Court of Appeals ruled that the Houston BBB's

motion to dismiss should be granted and that the case be remanded back to this Court for further

proceedings under Section 27.009(a), which mandates the award of attorney's fees, court costs,

expenses, and sanctions in favor of the Houston BBB. Therefore, the Houston BBB prays for the

following:

1. The admission into evidence of the Affidavit of Jeffrey R. Elkin and the exhibits
attached thereto;

2. The denial of any objections to the Affidavit of Jeffrey R. Elkin and/or the
exhibits attached thereto by John Moore;

3. An award of $390,858.35 in attorneys' fees, $62.35 in court costs, and $6,237.77
in expenses, to be paid by John Moore to the Houston BBB within 90 days of the
date final judgment is entered;

4. An award of an additional $30,000 for anticipated legal fees, court costs, and
CertifiedDocumentNumber:60397672-Page9of11

expenses associated with this Motion, any hearing hereon, and the entry of final
judgment;

5. An award of $50,000 for attorneys' fees and costs in the event an unsuccessful
appeal is filed, and an award of $50,000 for attorneys' fees and costs if a petition
for review is sought in the Texas Supreme Court;

6. That sanctions be imposed against John Moore and awarded to the Houston BBB
of not less than $50,000 to discourage John Moore from filing of any similar
actions against the Houston BBB in the future;

9
3691198
 7. Entry of final judgment that Plaintiffs take nothing by their claims and causes of
action against the Houston BBB; and

8. For such other and further relief to which it may be entitled.

Dated: April 11, 2014.

Respectfully submitted,

PORTER HEDGES LLP

By: /s/J effrey R. Elkin
Jeffrey R. Elkin, SBN 06522180
M. Harris Stamey, SBN 24060650
1000 Main Street, 36th Floor
Houston, Texas 77002-6336
Telephone: (713) 226-6617
Telecopier: (713) 226-6217
jelkin@porterhedges.com
mstamey@porterhedges.com

ATTORNEYS FOR DEFENDANT,
THE BETTER BUSINESS BUREAU OF
METROPOLITAN HOUSTON, INC.
CertifiedDocumentNumber:60397672-Page10of11

10
3691198
 CERTIFICATE OF SERVICE

I certify that a true and correct copy of foregoing document has been served upon all
counsel of record on the 11th day of April, 2014, as follows:

Lori Hood D By facsimile transmission
Tamara Madden IZI By electronic transmission
Brian P. Johnson D By deposit in the United States Mail
919 Milam Street, Suite 1700
D ByCMRRR
Houston, TX 77002
(713) 222-2323 (telephone)
D By hand-delivery
(713) 222-2226 (facsimile)
lhood@johnsontrent.com
tmadden@johnsontrent.com
bjohnson@johnsontrent.com

ATTORNEY FOR PLAINTIFFS, JOHN
MOORE SERVICES, INC. AND JOHN
MOORE RENOVATION, LLC

Isl Jeffrey R. Elkin
Jeffrey R. Elkin
CertifiedDocumentNumber:60397672-Page11of11

11
3691198
 I, Chris Daniel, District Clerk of Harris
County, Texas certify that this is a true and
correct copy of the original record filed and or
recorded in my office, electronically or hard
copy, as it appears on this date.
Witness my official hand and seal of office
this April 20, 2015

Certified Document Number: 60397672 Total Pages: 11

Chris Daniel, DISTRICT CLERK
HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated
documents are valid. If there is a question regarding the validity of this document and or seal
please e-mail support@hcdistrictclerk.com
Exhibit F
 5/27/2014 2:42:57 PM
Chris Daniel - District Clerk Harris County
Envelope No. 1367403
By: PAM ROBICHEAUX

NO. 2012-35162

JOHN MOORE SERVICES, INC. and § IN THE DISTRICT COURT OF
JOHN MOORE RENOVATION, LLC §
§
v. § HARRIS COUNTY, TEXAS
§
THE BETTER BUSINESS BUREAU OF §
METROPOLITAN HOUSTON, INC. § 269th JUDICIAL DISTRICT COURT

SECOND AMENDED NOTICE OF ORAL HEARING

Plaintiffs, John Moore Services, Inc. and John Moore Renovation, LLC, hereby file this,

their Second Amended Notice of Oral Hearing on Defendant, the Better Business Bureau of

Metropolitan Houston, Inc.’s Motion for Award of Attorneys’ Fees, Court Costs, Expenses, and

Sanctions and For Entry of Final Judgment. The oral hearing, originally set for Friday, May 30,

2014 at 3:00 p.m., was moved to June 27, 2014 at 3:00 p.m. and then moved by the Court to June

6, 2014; however, due to scheduling conflicts, the hearing will go forward on June 27, 2014, at

3:00 p.m.

Respectfully submitted,

JOHNSON, TRENT, WEST & TAYLOR, LLP

By: /s/ Lori Hood
Lori Hood
Texas Bar No. 09943430
Tamara Madden
Texas Bar No. 00783720
919 Milam Street, Suite 1700
Houston, Texas 77002
(713) 222-2323
(713) 222-2226 (facsimile)
lhood@johnsontrent.com
tmadden@johnsontrent.com
ATTORNEYS FOR PLAINTIFFS
 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing instrument has been served
upon all counsel of record pursuant to Rule 21 and Rule 21(a) of the TEXAS RULES OF CIVIL
PROCEDURE on this 2ih day of May, 2014.

Jeffrey R. Elkin Via E-Service and Facsimile
M. Harris Stamey
Porter Hedges, LLP
1000 Main Street, 36th Floor
Houston, Texas 77002
jelkin@porterhedges.com
mstamey@porterhedges.com

Isl Lori Hood
LORI HOOD

313986.1-04162014

2
05 1 27 1 2014 15:03 FAX 7132222228
JOHNSON & TRENT. LLP
!41001
*********************
*** TX REPORT ***
*********************

TRANSMISSION OK

TX/RX NO 0755
RECIPIENT ADDRESS 227*7132288217
DESTINATION ID
ST. TIME 05/27 15: 02
TIME USE 01 '03
PAGES SENT 3
RESULT OK

~·JohnsonTrent
919 Milam, Suite 1700
Houston, TX 77001

(713) 222-1323 Telephone
(713) 222-2226 Facsimile

FACSIMILE Th.ANSMITTAL

Number of Pages (including cover): 3 Date: May 27, 2014

Recipient FaxNwnber Tekph)ne Number
Jeffrey R. Elkin (713) 226.6217 (713) 226-6617

From: Lori Hood Telephone: (713) 860-0547

MESSAGE:

Re: Cause No. 2012-35162; John Moore Services, Inc., et al v. The Bettel' Business Bureau
of Metropolitan Houston, Inc.; 269th Judicial District Court of Harris County, Texas

PLEASE SEE ATTACHED. THANK YOU.

CQnfidentlality Notice: The documents accompanying this facsimile transmission contain confidential infonnation
which is legally privileged and intended only for the use of the recipient named below. We request immediate
notification by telephone of misrouted facsimile trmsrnissions so that we can arrange for return of those documents
to us. If you receive this facsimile in error, you are hereby notified that any disclosure, i.::opying, distribution or the
taking ofany action in reliance on the contents of this faxed infonnation is strictly prohibited.

Any Difficulties, Please Call 713.222.2323
 4J'; Johns 919 Milam, Suite 1700
nTrent
Houston, TX 77002

(713) 222-2323 Telephone
(713) 222-2226 Facsimile

FACSIMILE TRANSMITIAL

Number of Pages (including cover): 3 Date: May 27, 2014

Recipient Fax Number T e1eph one 1'.T
i
•• __ ,
________

Jeffrey R. Elkin (713) 226-6217 (713) 226-6617

From: Lori Hood Telephone: (713) 860-0547

MESSAGE:

Re: Cause No. 2012-35162; John Moore Services, Inc., et al v. The Better Business Bureau
of Metropolitan Houston, Inc.; 269th Judicial District Court of Harris County, Texas

PLEASE SEE ATTACHED. THANK YOU.

Confidentiality Notice: The documents accompanying this facsimile transmission contain confidential information
which is legally privileged and intended only for the use of the recipient named below. We request inunediate
notification by telephone of misrouted facsimile transmissions so that we can arrange for return of those documents
to us. If you receive this facsimile in error, you are hereby notified that any disclosure, copying, distribution or the
taking of any action in reliance on the contents of this faxed information is strictly prohibited.

Any Difficulties, Please Call 713.222.2323

Charge: Client No.: -~3=2=3_ _ _ __
Matter No.: -~O~O~O~O~l_ _ __
5/27/2014 EnlA'llope Details

P1int this page

Case # 201235162
Case Information
Location Harris County - 269th Civil District Court
Date Filed 05/27/2014 02:42:57 PM
Case Number 201235162
Case Description
Assigned to Judge
Attorney Lori Hood
Finn Name Johnson Trent West & Taylor LLP
Filed By Alexandria Chaffin
Filer Type Attorney
Fees
Convenience Fee $0.06
Total Court Case Fees $0.00
Total Court Filing Fees $0.00
Total Court Service Fees $2.00
Total Filing & Service Fees $0.00
Total Service Tax Fees $0.00
Total Provider Service Fees $0.00
Total Provider Tax Fees $0.00
Grand Total $2.06
Payment
Account Name Johnson Trent EFile
Transaction Amount $2.06
Transaction Response
Transaction ID 2268941
Order# 001367403-0

No Fee Documents Not Answers
Filing Type EFileAndServe
Filing Code No Fee Documents Not Answers
Filing Description Second Amended Notice of Hearing
Reference Number 323.1
Comments
Status Submitting

https://efile.txcourts.gov/EnlA'llopeDetails.aspX?enl.€1opeguid=a5d1e842-82dd-4820-8c20-e6fb71c524a5 1/2
5/27/2014 En.elope Details

Fees
Court Fee $0.00
Service Fee $0.00
Documents
Lead Document 2nd Amended Notice ofHearing.pdf [Original]

eService Details
N ame/Ernail Firm Service Type Status Served Date!fime Opened
M. Harris Stamey Porter Hedges,
EServe Not Sent No Not Opened
hstamey@porterhedges.com LLP
Jeffrey R Elkin Porter Hedges
EServe Not Sent No Not Opened
jelkin@porterhedges.com LLP
Jeffrey Elkins
EServe Not Sent No Not Opened
jelkin@porterhedges.com
Johnson, Trent,
Tamara M. Madden W &T Not Opened
est 1
ayor, EServe Not Sent No
trnadden@JohnsonTrent.com L.L.P.

Lori Hood
EServe Not Sent No Not Opened
fuood@johnsontrent.com
M. Harris Stamey
EServe Not Sent No Not Opened
mstamey@porterhedges.com

https://efi le.txcourts .g ov/EnwlopeDetai ls.aspX?enwlopeg ui d=a5d1 e842-82dd-4820-8c20-e6fb71 c524a5 212
Exhibit G
JUN-04-2014 16:15 From:7132281331 Porter Hedges LLP

NO. 2012..JS 162

JOHN MOORE SERVICES, INC. et al.,

Plainliffe,

vs. HARRIS COllNTY, TEXAS

THE BETIER BUSINESS BUR.EA{) OF
METROPOLITAN HOUSTON, ThTC.,

Defendant. 269'1'.H JUDICIAL DISTRICT

ORDER SEIIING HEARING
The Cr.mrt held a telephone conference this afternoon to resolve the scheduling diffiM"ences that the

Parties have confronted over when to hear Defendant's Motion for Award of Attorneys• Fees, Court Costs,

Expenses, and Sanotions and for Entry of Final. Judament. Lead counsel agreed that all sides are a"V"ailable to

attend a bearing at 9:00 a.m. on Thursday~ June 19. 2014.
Therefore. the Court ORDERS that it will hold a hearing on Defendant's Motioril for Awar\'.l of

Attorneys• Fees, Court Costs, Expenses, and Sanctions and for Entry of Final Judgment on I!!grsday, Jane 19.

2014 at 2:,00 a.m.
The Court ORDERS that this hearing ma.y not be reset e4(ccpt by Court order.

TI1ci Court funher ORDERS Plalntftf to serve and file any response to Defendant~s motion. by Thursday,

June 12, 2014.

The Court further ORDERS that each Party serve a tiopy of this Order irnn1edlately on all other Parties

by facsimile and either certified mail, renun-rcceipt requested or hand·deHvery. The Court further ORDERS

eaoh Party to file a. Certificate of Service with the Court describing the m.a.n.nt.\r in which the Party sel"\led the
Order.

SIGNED at Ho\IS!on, Tex.. this 4" day of J1U1e, ~) "'

HOJlj)anHfude
~
.Judge. 2691" Judicial Djstrict Court

RECOllC&R'& PillilMORAHi::iiir.i
I m~ IMtrum•ni is of poor q.111lity
:)1 lnl: lime of lma11iflll
Exhibit H
 6/13/2014 9:10:56 AM
Chris Daniel - District Clerk Harris County
Envelope No. 1530705
By: PAM ROBICHEAUX

NO. 2012-35162

JOHN MOORE SERVICES, INC. and § IN THE DISTRICT COURT OF
JOHN MOORE RENOVATION, LLC §
§
v. §
§ HARRIS COUNTY, TEXAS
THE BETTER BUSINESS BUREAU OF §
METROPOLITAN HOUSTON, INC. § 269th JUDICIAL DISTRICT COURT

PLAINTIFFS’ RESPONSE AND OBJECTION TO DEFENDANT’S MOTION FOR AWARD
OF ATTORNEYS’ FEES, COURT COSTS, EXPENSES, AND SANCTIONS AND FOR
ENTRY OF FINAL JUDGMENT AND
PLAINTIFFS’ MOTIONS TO CONSOLIDATE AND TO COMPEL

Plaintiffs, John Moore Services, Inc. and John Moore Renovation, LLC, (“John Moore”

or “Moore”) hereby file this their Response and Objection to Defendant, The Better Business

Bureau of Metropolitan Houston, Inc.’s (“Houston BBB” or “BBB”) Motion for Award of

Attorneys’ Fees, Court Costs, Expenses, and Sanctions and for Entry of Final Judgment

(“Motion”) and, in support thereof, state as follows.

SUMMARY OF THE ARGUMENT

The Houston BBB, by and through its counsel Porter Hedges, LLC, ("Porter Hedges"),

seeks an award of $390,858.35 in fees, $6,237.77 in expenses, $62.35 in court costs, and $50,000

in sanctions. There are two considerations to an award of attorneys’ fees under Chapter 27: (1)
Certified Document umber: 61188586 Page 1 of 21

whether they are reasonable and necessary and (2) whether they are equitable and just.1 The first

consideration is a question for the factfinder, which in this case is a jury. The second is a

question for the judge sitting in equity.

1
While section 27.009 says “reasonable attorney’s fees,” necessity is inseparable under Texas jurisprudence
from reasonableness. See infra, at p.6. In other words, unnecessary fees would be unreasonable. Therefore, this
motion includes the concept of necessity when discussing the fact issues that must be decided.
 The primary issue before the trier of fact will be whether the amount sought by Porter

Hedges in its Motion is reasonable and necessary. TEX. CIV. PRAC. & REM. CODE § 27.009(a).

As the Houston BBB seeks nearly $400,000.00 in fees and expenses, close examination and

careful consideration of its Motion and evidence is indeed warranted. It is against this backdrop

that the trier of fact is asked to review the fees and expenses at issue. Even if the Houston BBB

has presented some evidence that the fees are reasonable and necessary, it has not presented

conclusive evidence. Therefore, a fact finding will be required, and John Moore has requested a

jury and paid the jury fee in this case.

The primary issue before the judge will be whether the amount sought by Porter Hedges

is just and equitable and whether John Moore must bear sanctions. TEX. CIV. PRAC. & REM.

CODE § 27.009(a), (b). Because the Houston BBB has not achieved a dismissal of all claims that

John Moore has brought, it is not at all clear that it would be just or equitable to award attorneys’

fees or sanctions based on the Houston BBB’s partial victory. Furthermore, the Houston BBB’s

own arguments emphasize the uncertainty that the parties confronted with this newly enacted

statute. There was a great amount of uncertainty in 2012 whether Chapter 27 should be

interpreted to apply to the claims made in this lawsuit, or what standard of proof John Moore

would be required to establish to survive a motion to dismiss. Under these circumstances, it is

neither equitable nor just to award almost half a million dollars in fees and sanctions against John
Certified Document umber: 61188586 Page 2 of 21

Moore.

BACKGROUND

John Moore filed suit against the Houston BBB for reputational torts, fraud, and

interference with prospective and existing contracts. The BBB argued that the claims against it

arose out of its right to participate in government by freely speaking, associating, and petitioning

2
 and filed a motion to dismiss under section 27.005 of the Texas Civil Practice and Remedies

Code (the Anti-SLAPP statute).

During the pendency of the Anti-SLAPP motion, this Court allowed only limited

discovery, i.e., the production of BBB consumer complaints.

In response to the Anti-SLAPP motion, John Moore argued that the statute did not apply

under the circumstances, and presented evidence in support of each essential element of its

claims. The Court signed an order denying the BBB’s motion to dismiss.

In response to this Court’s denial of its motion, the Houston BBB elected to file an

interlocutory appeal. As the Houston BBB notes, the preparation of this case for trial continued.

Both parties engaged in discovery. In the end, the First Court of Appeals reversed this Court’s

order, and John Moore’s petition for review was denied. The case was remanded to the trial

court for further proceedings.

In light of the court of appeals’ decision, John Moore amended it petition to assert causes

of action (1) that were supported and suggested by the evidence discovered after the motion to

dismiss was denied and (2) that would not implicate the Houston BBB’s speech rights. Pursuant

to the Houston BBB’s motion, that amended petition was struck, forcing John Moore to file the

causes of action in a separate suit and giving the Houston BBB another bite at the Chapter 27

apple.
Certified Document umber: 61188586 Page 3 of 21

Defendant now seeks recovery of attorney’s fees, expenses and court costs under section

27.009(a) of the Anti-SLAPP statute. The statute provides that costs and “reasonable” attorney’s

fees shall be awarded to the moving party as “justice and equity may require.” Id. As noted

below, the determination as to the reasonableness of fees is a fact issue for the trier of fact. John

Moore reiterates its demand from its original petition that a jury consisting of twelve good and

3
 lawful jurors be duly qualified, tested, selected, and impaneled and the case proceed to trial on the

reasonableness and necessity of the requested attorney’s fees, expenses and court costs and any and

all other fact issues.

John Moore also asks that the court consolidate the cases.

ARGUMENT

The Houston BBB does not state the basis for its motion. In the latest conference with

the Court, the Houston BBB has characterized it as a motion for judgment in preparation for a

bench trial. At other times, the Houston BBB’s attorneys have characterized it as a motion for

summary judgment. In either event, the motion cannot be granted.

First, a bench trial is not appropriate. John Moore filed a jury demand, paid the fee, and

this case is pending on the jury docket. Reasonableness of attorneys’ fees is a question for the

fact finder, which, in this case, is a jury. Second, the Houston BBB has not presented conclusive

evidence that the fees are reasonable and necessary. Indeed, it is not certain that the Houston

BBB has presented competent evidence at all. Finally, an award of fees would be neither just

nor equitable at this time, and the question of sanctions is premature and overreaching as to

amount.

I. REASONABLENESS OF ATTORNEYS’ FEES IS AN ISSUE FOR THE JURY.

John Moore is entitled to a jury trial on the question of reasonableness of attorneys’ fees.
Certified Document umber: 61188586 Page 4 of 21

Chapter 27 requires a determination of “reasonable attorney’s fees.” TEX. CIV. PRAC. & REM.

CODE § 27.009(a)(1). Because this is a fact issue and because John Moore has requested a jury

trial in this case, this issue cannot be tried to the bench. The BBB even admits in its Motion that

whether fees are reasonable and necessary is a question of fact, citing Bocquet v. Herring, 972

S.W.2d 19, 20-21. (Tex. 1998). See Motion, p. 4.

4
 Fee shifting provisions in which the reasonableness of a fee must be determined present a

jury issue. The Texas Supreme Court has consistently interpreted similar fee shifting provisions

to raise fact questions on the issues of reasonableness and necessity that entitle the party against

whom the fees are to be assessed to demand a jury trial. See Transcontinental Ins. Co. v. Crump,

330 S.W.3d 211, 213 (Tex. 2011) (and cases cited therein); see also Commerce & Indus. Ins. Co.

v. Ferguson-Stewart, 339 S.W.3d 744, 748-49 (Tex. App.—Houston [1st Dist.] 2011, pet.

denied) (reversing and remanding for a jury trial the bench trial judgment awarding attorneys’

fees). Chapter 27 is indistinguishable from other similar fee shifting provisions as discussed

below.

Like the Citizens’ Participation Act, the Texas Labor Code mandates that “the court”

award attorneys’ fees to a workers’ compensation claimant under a fee shifting provision.

Crump, 330 S.W.3d at 213. The injured worker submitted his attorneys’ fees to the bench and

the trial court awarded fees, but the insurer argued that it was entitled to a jury determination

under the statute. Id. at 214. The Texas Labor Code provides:

An insurance carrier . . . is liable for reasonable and necessary attorney’s fees . . .
if the claimant prevails on an issue on which judicial review is sought . . . . [T]he
court shall apportion and award fees to the claimant’s attorney only for the issues
on which the claimant prevails. In making that apportionment, the court shall
consider the factors prescribed . . . .

TEX. LAB. CODE § 408.221 (emphasis added). The Texas Supreme Court noted that the statute
Certified Document umber: 61188586 Page 5 of 21

mentioned “the court” but was “silent on the critical judge-or-jury question.” Crump, 330

S.W.3d at 229. The Court considered this silence to create an ambiguity and relied on the

common law interpretations of other fee-shifting provisions to resolve the ambiguity. Id.

The Court noted that fee shifting provisions generally raise a fact issue. Id. at 230 (“In

general, the reasonableness of statutory attorney’s fees is a jury question.”). For example, the

Public Information Act also states that “the court” is to assess the amount of reasonable and
5
 necessary fees. Id. at 230 (citing TEX. GOVT. CODE § 552.323). The Texas Supreme Court

determined this to be a jury question. See City of Garland v. Dallas Morning News, 22 S.W.3d

351, 367 (Tex. 2000).

Likewise, the Declaratory Judgment Act permits “the court” to award reasonable and

necessary fees. TEX. CIV. PRAC. & REM. CODE § 37.009. Because reasonableness and necessity

are both fact issues, they are questions that are committed to a jury. Crump, 330 S.W.3d at 231

(citing Bocquet, 972 S.W.2d at 21). Applying this general rule to the statute in Crump, the Court

decided that the Texas Workers’ Compensation Act’s fee shifting provision preserved the right

to “submit the issue of the reasonableness and necessity of a claimant’s attorney’s fees, where

disputed, to a jury.” Id. at 231.

Thus, in three other fee shifting provisions mandating or authorizing “the court” to award

fees, the Texas Supreme Court has determined that “the court” means the jury when it comes to

the questions of reasonableness or necessity.2 Just like those provisions, section 27.009 of the

Civil Practice and Remedies Code requires “the court” to award “reasonable attorney’s fees.”

TEX. CIV. PRAC. & REM. CODE § 27.009(a)(1). Section 27.009 should be interpreted consistently

with the fee shifting provisions discussed above. Therefore, “the court” must mean “the jury” on

the issue of reasonableness.

As set forth in the Hood Affidavit, there is at least a fact issue as to whether the Houston
Certified Document umber: 61188586 Page 6 of 21

BBB’s fees are reasonable. Ex. A (Affidavit of Lori Hood). John Moore has requested a jury

and paid the jury fee. This case is on the jury docket. John Moore is entitled to have a jury find

these facts.

2
On the other hand, “the court” refers to the judge when it comes to determining whether justice or equity
would permit the award of fees. Crump, 330 S.W.3d at 231.

6
 II. THE HOUSTON BBB HAS NOT PRESENTED CONCLUSIVE EVIDENCE THAT THE
ATTORNEYS’ FEES ARE REASONABLE AND NECESSARY.

The Houston BBB’s evidence of attorneys’ fees is not conclusive. Indeed, it may not

even be legally sufficient.

A. The Houston BBB Must Provide Sufficient Evidence to Allow the Fact
Finder to Make a Determination.

The Anti-SLAPP statute mandates the award of “reasonable” attorneys’ fees in an

amount that satisfies “justice and equity.” TEX. CIV. PRAC. & REM. CODE § 27.009(a)(1). Texas

jurisprudence has always considered reasonableness and necessity together. See, e.g., El Apple I,

Ltd. v. Oivas, 370 S.W.3d 757, 762-63 (Tex. 2012) (considering necessity of the fees as a

component of reasonableness). Thus, the Houston BBB is tasked with providing evidence that

its attorneys’ fees are both reasonable and necessary.

For the fact finder to make a meaningful determination and for the Court to conduct a

meaningful review, the Houston “must provide sufficient details of the work performed.” Id. at

764. This includes, “at a minimum, documentation of the services performed, who performed

them and at what hourly rate, when they were performed, and how much time the work

required.” Id. The El Apple requirements have been elaborated upon to require “evidence of the

time spent on specific tasks.” Long v. Griffin, __ S.W.3d __, 2014 WL 1643271, at *3 (Tex.

April 25, 2014).
Certified Document umber: 61188586 Page 7 of 21

The BBB bears the burden of proof in support of its Motion, and cannot simply provide

general statements of the time spent multiplied by the hourly rate to the trier of fact. Id. The

Texas Supreme Court has provided further guidance in the form of factors that should be

considered when determining whether the requested compensation is reasonable. These

guidelines are known as the “Anderson Factors” and are set forth below:

7
 a. the time and labor required, the novelty and difficulty of the questions involved,
and the skill required to perform the legal service properly;

b. the likelihood that the acceptance of the particular employment will preclude
other employment by the lawyer;

c. the fee customarily charged in the locality for similar legal services;

d. the amount involved and the results obtained;

e. the time limitations imposed by the client or by the circumstances;

f. the nature and length of the professional relationship with the client;

g. the experience, reputation, and ability of the lawyer or lawyers performing the
services; and

h. whether the fee is fixed or contingent on results obtained or uncertainty of
collection before the legal services have been rendered.

Arthur Anderson & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997).

John Moore objects to the BBB’s purported evidence in support of its Motion, see infra,

pp. 15-17, and asserts that the jury is entitled to assess the credibility of the BBB’s witnesses and

determine the weight of the evidence and decide whether the BBB has met its burden of proof to

recover fees and expenses in this matter.

B. The Houston BBB Does Not Even Purport to Present Conclusive Evidence
That Its Fees Are Reasonable and Necessary.

Even if the Houston BBB’s evidence passes the legal sufficiency test, it is certainly not

conclusive. Indeed, the fees may well be unreasonable as a matter of law.
Certified Document umber: 61188586 Page 8 of 21

1. The Houston BBB’s proposed fee award is “patently unreasonable”
according to Justice Hecht.

In a case involving an eight-day trial, three depositions, and approximately 2,500 pages

of document production, Justice Hecht opined that 890 hours of attorney time at a rate of over

$500 per hour was “patently unreasonable.” El Apple I, Ltd., 370 S.W.3d at 765 (Hecht, J.

concurring, joined by Wainwright, J. and Willet, J.). Justice Hecht also found it significant that

8
 the attorneys for the opposing side spent only 266.7 hours at less than half the billing rate. Id. at

766. As Justice Hecht said, “Statutory fee-shifting is not a bonanza. It should take into account

what the market should.” Id.

In this case, the Houston BBB prepared and filed eight contested pleadings and motions

in this Court including its 3-page answer and 10-page motion to dismiss. Ex. A ¶ 13. The

Houston BBB also produced approximately 12,000 pages of documents and participated in

several hearings. Id. In the appellate courts, the Houston BBB prepared and filed a brief of

appellant, a reply brief of appellant, and a response to petition for review. Id. There was no trial.

Discovery was limited, and no depositions were taken. Id. The Houston BBB seeks a bonanza

for its attorneys that is not consistent with the market.

Furthermore, the fee invoices covering the periods from June 2012 through May 2013

(from the invoice dated July 23, 2012 through the invoice dated June 16, 2013) do not satisfy the

most basic requirement by showing the time billed and the rate for that time.

That proof should include the basic facts underlying the lodestar, which are: (1)
the nature of the work, (2) who performed the service and their rate, (3)
approximately when he services were performed, and (4) the number of hours
worked.

El Apple, 370 S.W.3d at 763. These invoices do not show the rate for the persons performing the

work at the time they performed the work. Although the Elkin Affidavit provides billing rates
Certified Document umber: 61188586 Page 9 of 21

for certain attorneys and legal staff, it does not provide the rates for all of the persons identified

in the invoices, and it does not provide the rates that were in effect at the time of the invoice.

Therefore, these invoices may not be considered.

Finally, the Houston BBB’s evidence of reasonableness does not satisfy the Long v.

Griffin standard. Long, at *2. The billing invoices provided include 610 entries. Of those, only

373 provide the time spent on a specific task as required by the Texas Supreme Court. Id.; See

9
 Ex. B-1 (Affidavit of Amelia Irving). The other 267 combine multiple tasks and actions into a

single time entry (i.e., block billing), making it impossible to determine whether the time was

well-spent or wasted. Id. This form of block billing does not even permit the fact finder to break

the hours spent down into general categories such as discovery, research, pleadings, witnesses,

etc., and even if this kind of general breakdown were possible, it is inadequate under Supreme

Court precedent. See El Apple, 370 S.W.3d at 763 (holding that such categorization “provides

none of the specificity needed for the trial court to make a meaningful lodestar determination.”).

Without even the ability to consider the time spent on general activities, much less

specific tasks, the invoices are insufficient to support a finding that the fees included therein are

reasonable and necessary.

2. The Houston BBB has not produced conclusive evidence that the fees
represented in the invoices have been incurred.

Section 27.009 only allows recovery of fees that have been “incurred.” TEX. CIV. PRAC.

& REM. CODE § 27.009(a)(1). The Elkin Affidavit does not establish which, if any, of the fees

invoiced were actually incurred by the Houston BBB in the sense that they were paid or that

there is an obligation to pay them in full. The Elkin Affidavit states that “Porter Hedges has

received payment for all work,” but it does not specify what that payment amount was.

Therefore, the Elkin Affidavit does not conclusively establish that the fees requested were
Certified Document umber: 61188586 Page 10 of 21

incurred.

3. The Houston BBB has not produced conclusive evidence that the
proposed fee award is reasonable and necessary.

As discussed above, the Houston BBB’s invoices and the Elkin Affidavit do not satisfy

the Texas Supreme Court’s specificity requirements and are, therefore, not even some evidence

of the reasonableness of fees, much less conclusive evidence. Indeed, much of the Elkin

Affidavit is conclusory, see infra, pp. 15-17, because it is largely an expression of opinion

10
 without the underlying facts necessary to support the conclusion. Hou-Tex., Inc. v. Landmark

Graphics, 26 S.W.3d 103, 112 (Tex. App.—Houston [14th Dist.] 2000, no pet.). Even if the

evidence were competent and were considered, it would raise a fact issue at best.

The reasonableness of the time spent in representing the Houston BBB is discussed only

in general terms in paragraphs 7 through 9. Paragraph 7 lists the kinds of legal tasks that one

would expect in any lawsuit, but only in vague terms. Paragraph 8 includes a chart of the month-

by-month billing. Paragraph 9 is intended to prove up the invoices. In paragraph 10, the time is

divided into four overlapping general categories. Paragraph 11 restates the total fees, costs, and

expenses allegedly incurred. Paragraph 12 provides a conclusory estimate of future legal fees.

None of these paragraphs discuss the reasonableness of the fees, much less relate the entries on

the invoices to any particular tasks and explain why they are reasonable. In short, they do not

provide any evidence that would allow a finder of fact to make a determination as to

reasonableness.

Following is a review of the Anderson factors and the Houston BBB’s treatment of each

in the Elkin Affidavit.

a. The time and labor required, the novelty and difficulty of the
questions involved, and the skill required to perform the legal
service properly.

The work on this case was not complex or difficult for the Houston BBB. Ex. A ¶¶ 16-
Certified Document umber: 61188586 Page 11 of 21

17. Chapter 27 was designed to allow a defendant to easily and efficiently impose an immediate

burden on the plaintiff to present “clear and specific prima facie evidence” of the elements of its

claim. Id. The Houston BBB accomplished this with a short, ten page motion to dismiss.

While Chapter 27 was a new statute in Texas, it was based on a model that has been

adopted in many states, and there had already been a number of other cases in Texas in which it

had been used by other Better Business Bureaus (notably Dallas) as a defensive tactic. Id. ¶ 17.
11
 Therefore, the Houston BBB did not have to reinvent the wheel. Furthermore, the legal briefing

on the interpretation of the statute in the trial court and the court of appeals involved a

straightforward application of well-known and long-established precedent. Id. ¶ 16. This text-

based statutory construction was not difficult and involved legal authority that is so well known

that little research should have been necessary to supply the principles. Id.

b. The likelihood that the acceptance of the particular
employment will preclude other employment by the lawyer.

Porter Hedges acknowledges in the Elkin Affidavit, that taking on this engagement did

not prevent the firm from accepting any other clients.

c. The fee customarily charged in the locality for similar legal
services.

For a company the size of the Houston BBB, the rates indicated in the Elkin Affidavit

and, presumably, charged in the attached invoices were excessive. Ex. A ¶ 15. In the stratified

Houston legal market, small businesses like the Houston BBB (an in particular, non-profits)

simply do not engage firms that charge fees in the upper range of the market. Id. If they do

engage such firms, they do so at substantially discounted rates or as a pro bono matter. Id. For

example, the rates charged by John Moore’s attorneys were as much as 40% lower, resulting in

total fees incurred by John Moore of only $165,000 for precisely the same litigation. Id.

d. The amount involved and the results obtained.
Certified Document umber: 61188586 Page 12 of 21

Except for a handful of days in the fall of 2013, before its First Amended Original

Petition was struck, John Moore did not seek a damage multiplier. Ex. A ¶ 19. Therefore, with

the exception of the fees incurred to contest this filing, Porter Hedges’ rationale that it spent

extra time on the case for the other 21 months of litigation due to this pleading is disingenuous.

Id.

12
 Furthermore, Porter Hedges has obtained only a partial dismissal of John Moore’s claims

to date. This result, while beneficial to the Houston BBB, does not justify the suggestion that the

Houston BBB’s position has been fully vindicated or that John Moore’s claims have no merit.

An award of attorneys’ fees is premature on this factor.

e. The time limitations imposed by the client or by the
circumstances.

There were no onerous time limits imposed in this litigation. Ex. A ¶ 20. Chapter 27

allows 60 days to prepare and file a motion to dismiss. TEX. CIV. PRAC. & REM. CODE

§ 27.003(b). The Houston BBB had ample time to prepare the ten-page motion. Ex. A ¶ 20.

In the interlocutory appeal, the Houston BBB requested and received two extensions of

time to file its principal brief, which John Moore did not oppose. Id. In the end, the Houston

BBB had 108 days to prepare and file its brief of appellant. Id. John Moore filed its brief in

response 35 days later. Id. After yet another extension of time, the Houston BBB had 27 days to

prepare and file a brief in reply. Id. There was no time pressure in the appal.

f. The nature and length of the professional relationship with the
client.

Porter Hedges states that it has an almost 20 year relationship with the Houston BBB.

The Houston BBB is a not-for-profit enterprise that markets itself as a performer of good works

for the consumers of Houston. Ex. A ¶ 15. These types of clients are often represented pro bono
Certified Document umber: 61188586 Page 13 of 21

or at substantially discounted rates and/or capped legal fees. Id. The Houston BBB’s evidence is

silent on its billing arrangement with the Porter Hedges. But the length of this relationship and

the nature of the Houston BBB’s activities suggest that, in the market, it would be able to engage

counsel for substantially less than the amount that it now suggests that it incurred. Id. ¶ 21.

13
 g. The experience, reputation, and ability of the lawyer or
lawyers performing the services.

Paragraph 14 set out the experience of some of the timekeepers who appear on the

invoices. But there are many entries that include timekeepers whose experience is unstated.

There is no evidence of reputation or of ability for any timekeeper.

Assuming that the lawyers involved were all “able” to a degree that is proportionate to

their experience, it appears that the time spent on this matter is not reflective of that ability. Ex.

A ¶ 22. For example, the appeal primarily involved basic, well-understood statutory construction

principles. Id ¶ 16. No new legal ground was explored in the textual analysis. Id. It was simply

a plain meaning-based legal argument. Id. The number of Texas Supreme Court cases setting

out the plain language standard of interpretation are so numerous, it would be difficult not to

know at least one off the top of the head. It is clear to John Moore that this legal argument

should not have required so much time to prepare both in terms of research and of drafting such

that it required two additional months of work. Id. ¶¶ 20, 22.

h. Whether the fee is fixed or contingent on results obtained or
uncertainty of collection before the legal services have been
rendered.

The Houston BBB states that its fee agreement was fixed, but the agreement is not

provided. Therefore, it is not certain what fees were incurred by the Houston BBB. The Elkin
Certified Document umber: 61188586 Page 14 of 21

Affidavit states that “payment” has been made, but does not specify the amount of that payment.

Furthermore (and this may be an error, it is so unusual), the Elkin Affidavit states that the

fees are billed to the nearest six-tenths of an hour. If correct, this policy would be a substantial

departure from customary practice in the Houston legal market, and it would result in an

inordinate inflation of the Houston BBB’s legal invoices that would not be reasonable. Ex. A

¶ 23.

14
 III. AN AWARD OF FEES AT THIS JUNCTURE WOULD BE NEITHER JUST NOR EQUITABLE.

For two reasons, the award of fees suggested by the Houston BBB would be neither

equitable nor just. First, the application of Chapter 27 to John Moore’s claims was not certain

and there is no serious dispute that John Moore has been harmed by the Houston BBB’s actions.

Ex. A ¶¶ 7-10.

Second, John Moore still has viable claims against the Houston BBB that arise out of this

transaction, which, but for the Houston BBB’s insistence, would be joined to this same lawsuit.

Under these circumstances, an award of over $400,000 in fees would serve neither justice nor

equity and would be premature.

Indeed, as the Houston BBB has repeatedly stated, the claims in the second suit (Cause

No. 2013-76215) arise out of the same transaction. The Houston BBB’s motion to strike John

Moore’s First Amended Original Petition in the fall of 2013 caused a de facto severance of John

Moore’s claims into separate cases, and John Moore objects that such a splitting of its claims is

improper and would result in prejudice to John Moore in the form of improper attempts by the

Houston BBB to assert res judicata.

John Moore does not believe that res judicata would apply under the circumstances. See

Van Dyke v. Boswell, O’Toole, Davis & Pickering, 697 S.W.2d 381, 384 (Tex. 1985) (“res

judicata effects of an action cannot preclude litigation of claims that a trial court explicitly
Certified Document umber: 61188586 Page 15 of 21

separates or severs from that action”); Dolenz v. Continental Nat’l Bank, 620 S.W.2d 572, 575

(Tex. 1981) (res judicata does not apply when conduct by a party estops it from asserting the

prior active jurisdiction); see also Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex.

1988). But even though res judicata does not apply, the splitting of John Moore’s cause of

action is not consistent with Texas policy and should be corrected now that all statutory stays

preventing a consolidation have expired. See Pierce v. Reynolds, 329 S.W.2d 76, 78 (Tex. 1959)
15
 (claim splitting is improper); Ryland Group, Inc. v. White, 723 S.W.2d 160, 162 (Tex. App.—

Houston [1st Dist.] 1986, no writ) (compulsory claims that arise out of the same transaction

cannot be split into a separate cause).

Under the circumstances, John Moore moves for consolidation of Cause No. 2013-76215

with this case. TEX. R. CIV. P. 174(a); cf. Wyatt., 760 S.W.2d at 247 (when the claims in a

second lawsuit should have been brought in a previously-filed case, the second suit should be

abated so the pleadings in the first suit can be amended to join the new claims). A consolidation

will allow the entire controversy to be decided at one time by a single jury.

IV. JOHN MOORE OBJECTS TO THE ELKIN AFFIDAVIT AS LEGALLY INSUFFICIENT TO
SUPPORT AN AWARD OF ATTORNEYS’ FEES.

The Elkin Affidavit contains general and highly conclusory statements which are legally

insufficient to support an award of attorneys’ fees. A conclusory statement is “one that does not

provide the underlying facts to support the conclusion.” Hou–Tex, Inc., 26 S.W.3d at 112

(quoting Rizkallah v. Conner, 952 S.W.2d 580, 587 (Tex. App.—Houston [1st Dist.] 1997, no

writ)). A general statement by an attorney that an amount sought is reasonable is not conclusive

proof on the question of reasonableness. Nguyen Ngoc Giao v. Smith & Lamm, P.C., 714 S.W.2d

144, 149 (Tex. App. —Houston [1st Dist.] 1986, no writ); see also, Burrow v. Acre, 997 S.W.2d

229, 236 (Tex. 1999) (expert must support opinion by reasoned basis). Furthermore, an
Certified Document umber: 61188586 Page 16 of 21

agreement to pay an attorney a certain sum per hour is not proof of its reasonableness. Leal v.

Leal, 628 S.W.2d 168, 171 (Tex. App.—San Antonio 1982, no writ).

John Moore’s objections include but are not limited to Elkin Affidavit paragraphs 6, 20

and 25, which state that Porter Hedges billing rates are customary, reasonable and comparable to

similar law firms in Harris County, Texas. These statements are conclusory and provide no

underlying facts to support the conclusion.

16
 John Moore further objects to Elkin Affidavit paragraph 8, which concludes that Moore

has asserted numerous, meritless claims. This is a factually unsupported opinion and does not

provide a valid basis for the award of attorneys’ fees.

The Elkin Affidavit is also objectionable as to paragraph 9 and the referenced invoices

attached as Exhibit 2. Specifically, the invoices contain multiple redactions to allegedly prevent

disclosure of attorney-client privileged material. The sheer number of redactions suggests that

the BBB, by and through its counsel, is not protecting attorney-client privilege but rather hiding

duplicative billing entries and unnecessary work product. John Moore objects that Elkin

Affidavit’s reliance on the invoices contained in Exhibit 2 is based on insufficient, unreliable and

conclusory evidence.

John Moore further objects to Elkin Affidavit paragraph 12, which contains an

unsupported and conclusory opinion that the BBB will incur $130,000.000 in legal fees to defend

and argue its Motion and any related appeals.

John Moore objects to Elkin Affidavit conclusory paragraphs 17, 18 and 22 which allude

to the “complexity” of the Lawsuit without providing factual evidence of how Chapter 27 is a

complex statute and delineating with specificity what legal analysis and research were required

to prosecute the BBB’s Motion.
Certified Document umber: 61188586 Page 17 of 21

John Moore further objects to Elkin Affidavit paragraph 21 which contains the

conclusory statement that the hours expended by Porter Hedges, as reflected in the invoices

attached as Exhibit 2, were reasonable. John Moore re-asserts its objections to reliance on the

heavily redacted invoices as constituting insufficient and unreliable evidence.

17
 John Moore objects to Elkin Affidavit paragraph 24 which concludes, without any

supporting factual evidence, that Porter Hedges professionals were precluded from other

employment due to the acceptance of this case.

John Moore further objects to Elkin Affidavit paragraph 28, which references the

experience, reputation and ability of Porter Hedges without providing any factual support. John

Moore also objects to the conclusory statement that Porter Hedges’ billing rates were reasonable

based on said experience.

John Moore objects to Elkin Affidavit paragraph 31, which states that Porter Hedges

expenses are reasonable based on the length and complexity of this litigation. These statements

are conclusory and provide no underlying facts to support the conclusion.

Finally, John Moore objects to Elkin Affidavit paragraph 32 as irrelevant to the BBB’s

Motion and unsupported by any evidence proffered in this matter.

In sum, the Elkin Affidavit contains conclusions unsupported by any reasoning

connecting them to the facts as to the time and rates billed on specific tasks that would support a

finding that the claimed attorneys’ fees are reasonable and necessary. Thus, the statements in the

Elkin Affidavit regarding attorneys’ fees are conclusory and there is no evidence to support the

reasonableness of these fees. Coastal Terminal Operators v. Essex Crane Rental Corp., 2004
Certified Document umber: 61188586 Page 18 of 21

Tex. App. LEXIS 7257 at pp. 21-24 (Tex. App.—Houston. [14th Dist.] 2004, no pet) (citing

Burrow, 997 S.W.2d at 235-37).

MOTION TO COMPEL RESPONSES TO MOORE’S DISCOVERY

John Moore objects to Defendant’s request for fees and expenses incurred prosecuting its

Motion to Dismiss. Among other reasons, these fees and expenses should be denied by the trier

of fact because Porter Hedges has provided no substantive discovery responses to John Moore

18
 regarding these requests, despite the fact that John Moore specifically requested such

information in a request for production to the Houston BBB. Ex. C.

Defendant is in possession, custody or control of documents and information responsive

to John Moore’s request for production, yet Porter Hedges has produced no information

regarding fees and expenses it has incurred beyond the firm’s heavily redacted billing records.

John Moore is entitled to discovery on these fees and expenses in order to test their

reasonableness and necessity, and the Houston BBB should not be allowed to profit from its

blatant disregard for its discovery obligations. John Moore thus seeks an Order overruling the

Houston BBB’s objections and compelling production of the requested documents.

RESERVATION OF RIGHTS

John Moore expressly reserves the right to amend, modify, or supplement its Response to

Defendant’s Motion, and to assert additional grounds for objecting to the Motion, to the extent

discovery and expert analysis reveal additional issues concerning the propriety of compensation

sought in the Motion.

PRAYER

WHEREFORE, John Moore respectfully requests that this Court deny Defendant’s

Motion for Award of Attorneys’ Fees, Court Costs, Expenses, and Sanctions and for Entry of

Final Judgment and sustain John Moore’s objections to the evidence offered by Defendant
Certified Document umber: 61188586 Page 19 of 21

contained herein. John Moore further requests that the Court grant its motion to consolidate and

consolidate Cause No. 2013-76215 into this case and for the trier of fact to hear evidence to

determine the facts raised by the parties. Finally, John Moore requests that the Court grant its

motion to compel a response to its discovery requests. John Moore also requests that this Court

grant such other and further relief as is equitable and just.

19
Certified Document umber: 61188586 Page 20 of 21

20
 Respectfully submitted,

JOHNSON, TRENT, WEST & TAYLOR, LLP

By: /s/ Lori Hood
Lori Hood
Texas Bar No. 09943430
Brian P. Johnson
Texas Bar No. 10685700
Tamara Madden
Texas Bar No. 00783720
919 Milam Street, Suite 1700
Houston, Texas 77002
(713) 222-2323
(713) 222-2226 (facsimile)
lhood@johnsontrent.com
bjohnson@johnsontrent.com
tmadden@johnsontrent.com

ATTORNEYS FOR PLAINTIFFS

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing instrument has been served
upon all counsel of record pursuant to Rule 21 and Rule 21(a) of the TEXAS RULES OF CIVIL
PROCEDURE on this 12th day of June 2014.

Jeffrey R. Elkin Via E-Service
M. Harris Stamey
PORTER HEDGES, LLP
1000 Main Street, 36th Floor
Certified Document umber: 61188586 Page 21 of 21

Houston, Texas 77002
jelkin@Porter Hedges.com
mstamey@Porter Hedges.com

/s/ Tamara Madden
TAMARA MADDEN

329881

21
 I, Chris Daniel, District Clerk of Harris
County, Texas certify that this is a true and
correct copy of the original record filed and or
recorded in my office, electronically or hard
copy, as it appears on this date.
Witness my official hand and seal of office
this April 20, 2015

Certified Document Number: 61188586 Total Pages: 21

Chris Daniel, DISTRICT CLERK
HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated
documents are valid. If there is a question regarding the validity of this document and or seal
please e-mail support@hcdistrictclerk.com
Exhibit I
 CAUSENO. ~-35'f~1_

~tt ~re_ ~N1'ce~1 k. ef. aJ. , § IN THE DISTRICT COURT OF
§
Plaintiff(s), §
§
§ HARRIS COUNTY, TEXAS
§
§
§
Defendant(s) § 269th JUDICIAL DISTRIC1;

ORDER

The following matters are pending before the Court:
CertifiedDocumentNumber:61265745-Page1of1

, 20I_:l.

FILED
Chris Daniel
District Clerk Hon Dan Hinde
Judge, 2691h District Court
JUN 19 2014 c2 r?j~
Time:
tf t;nty, Texa~
-
_
By Deputy
 I, Chris Daniel, District Clerk of Harris
County, Texas certify that this is a true and
correct copy of the original record filed and or
recorded in my office, electronically or hard
copy, as it appears on this date.
Witness my official hand and seal of office
this April 20, 2015

Certified Document Number: 61265745 Total Pages: 1

Chris Daniel, DISTRICT CLERK
HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated
documents are valid. If there is a question regarding the validity of this document and or seal
please e-mail support@hcdistrictclerk.com
Exhibit J
 8/4/2014 4:42:37 PM
Chris Daniel - District Clerk Harris County
Envelope No. 2045292
By: GAYLE FULLER

CAUSE NO. 2012-35162

JOHN MOORE SERVICES, INC. and § IN THE DISTRICT COURT OF
JOHN MOORE RENOVATION, LLC §
Plaintiffs, §
~ § HARRIS COUNTY, TEXAS
§
THE BETTER BUSINESS BUREAU OF §
METROPOLITAN HOUSTON, INC. §
Defendant. § 269TH JUDICIAL DISTRICT COURT

DEFENDANT'S MOTION FOR ENTRY OF FINAL JUDGMENT AND
FOR AWARD OF COURT COSTS, EXPENSES, AND SANCTIONS i:

Defendant The Better Business Bureau of Metropolitan Houston, Inc. ("Defendant") files

this Motion for Entry of Final Judgment and for Award of Court Costs, Expenses, and Sanctions

against Plaintiffs John Moore Services, Inc. and John Moore Renovation, LLC (collectively

"Plaintiffs" or "John Moore") and in support thereof would show the Court as follows:

I. REQUEST FOR JUDGMENT ORDERING DISMISSAL OF PLAINTIFFS' CLAIMS

Pursuant to the judgment rendered by the First Court of Appeals on July 16, 2013, and

the mandate issued by that court on April 4, 2014, Defendant respectfully requests that the Court

enter a final judgment dismissing all of Plaintiffs' claims against Defendant with prejudice and

ordering that Plaintiffs take nothing on all of their claims. See The Better Bus. Bureau of Metro.

Houston, Inc. v. John Moore Servs., Inc., No. 01-12-00990-CV, 2013 WL 3716693, *12 (Tex.

App.-Houston [1st Dist.] 2013, pet. denied).

II. REQUEST FOR JUDGMENT ON JURY VERDICT FOR ATTORNEYS' FEES

Pursuant to Section 27.009(a)(l) of the Texas Civil Practice and Remedies Code

("Chapter 27"), the Court is required to award to the Defendant "the reasonable attorney's fees

... incurred in defending against this legal action .... " TEX. CIV. PRAC. & REM. CODE ANN. §

27.009(a)(l) (West 2014). On July 22, 2014, a jury rendered a verdict for $250,001.44 as the

1
3818625
amount of reasonable attorney's fees incurred by the Defendant in defending against this legal

action. See Exhibit A. Accordingly, Defendant respectfully requests that the Court enter a final

judgment requiring Plaintiffs to pay to Defendant its attorney's fees in at least the amount of

$250,001.44. 1

III. REQUEST FOR JUDGMENT AWARDING COURT COSTS, EXPENSES, AND SANCTIONS

Chapter 27 also requires the Court to award to the Defendant "court costs ... and other

expenses incurred in defending against the legal action .... " TEX. CIV. PRAC. & REM. CODE ANN.

§ 27.009(a)(l) (West 2014). In addition, Chapter 27 calls for the Court to award "sanctions

against the party who brought the legal action as the court determines sufficient to deter the party

... from bringing similar actions described in this chapter."2

A. Trial Court Costs

Defendant requests that the Court enter a final judgment taxing all costs of court

expended or incurred in this lawsuit to Plaintiffs.

B. "Other Expenses"

Defendant requests that the Court enter a final judgment awarding Defendant $6,23 7. 77

for expenses incurred in defending against Plaintiffs' legal action, as established by the

testimony and exhibits (Defendant's Trial Exhibits 1, 3-4, 6) entered into evidence during the

July 21-22 jury trial.

Defendant agrees only to the form of judgment it is submitting to the Court and is not, in seeking entry of a
final judgment, concurring with the jury's verdict or the content and result of the final judgment. First Nat'/ Bank v.
Fojtik, 775 S.W.2d 632, 633 (Tex. 1989) (per curiam).
2
Section 27 .009(a) states that "[i]f the court orders dismissal of a legal action under this chapter, the court
shall award to the moving party: (1) court costs, reasonable attorney's fees, and other expenses incurred in
defending against the legal action as justice and equity may require; and (2) sanctions against the party who brought
the legal action as the court determines sufficient to deter the party who brought the legal action from bringing
similar actions described in this chapter." Tex. Civ. Prac. & Rem. Code Ann. § 27.009(a) (West 2014) (emphasis
added).

2
3818625
C. Sanctions

Defendant requests that the Court enter a final judgment awarding at least $415,000.00 in

sanctions against Plaintiffs.

An instructive case is Kinney v. BCG Attorney Search, Inc., 03-12-00579-CV, 2014 WL

1432012, *9-10 (Tex. App.-Austin April 11, 2014, pet. filed) (mem. op.), where the Austin

Court of Appeals ruled that it was not an abuse of discretion for the trial court to award sanctions

pursuant to Chapter 27 in an amount equal to 1.66 times the defendant's attorney's fees.

(affirming sanctions of $75,000 based upon attorney's fees award of $45,000) (copy attached as

Exhibit B). In Kinney, the plaintiff filed a SLAPP lawsuit in Texas state district court that

"arose from the same factual background" as a previously filed SLAPP lawsuit in California

state court which the California court had dismissed. Kinney, 2014 WL 1432012, *8. The Texas

district court granted in part and denied in part the defendant's motion to dismiss under Chapter

27, and awarded $75,000 in sanctions under section 27.009(a)(2). Id. On appeal, the Austin

Court of Appeals reversed the trial court's denial in part of the motion to dismiss and otherwise

affirmed the trial court's ruling "in all other respects," including the $75,000 award of sanctions.

Id. at *1, 9-10.

With regard to the trial court's sanctions award, the Austin court initially observed that:

Section 27.009(a)(2) requires the trial court to award sanctions if it
dismisses a claim pursuant to section 27 .003 and gives the trial
court broad discretion to determine what amount is sufficient to
deter the party from bringing similar actions in the future. It does
not expressly require the trial court to explain how it reached its
determination.

Id. at *9 (citations omitted). Noting that the California court had awarded the defendants

$45,000 in attorney's fees in connection with the dismissal of the California lawsuit, the Kinney

court held:

3
3818625
 The record also shows a culmination of multiple actions ...
concerning claims for the same harm asserted under various legal
theories and that one of the prior actions resulted in an award of
attorney's fees against [plaintiffs] in the amount of $45,000. Given
the history of the litigation, the trial court could have reasonably
determined that a lesser sanction would not have served the
purpose of deterrence. In light of the trial court's findings and the
record before us, as well as the broad discretion afforded the trial
court by section 27.009, we conclude that the sanction has a direct
relationship to [plaintiffs'] sanctionable conduct and that the trial
court did not abuse its discretion in determining that a lesser
sanction would have been insufficient to deter further actions by
[plaintiff].

Id. (citations omitted). The appellate court added that the $45,000 in attorney's fees awarded to

the defendant in the California SLAPP litigation served as an effective "guidepost" of the

economic impact of the plaintiffs' sanctionable conduct in filing a SLAPP lawsuit in Texas and

provided support for the trial court to conclude that "a sanction of $75,000 was necessary to

deter [plaintiffs] from bringing similar actions in the future." Id. at *10.

Under the rationale and holding in Kinney, an award of sanctions against Plaintiffs in the

amount of at least $415,000 is appropriate. Like the plaintiffs in Kinney, Plaintiffs here have

demonstrated their intent to bring multiple SLAPP lawsuits against the Houston BBB that are

based on the "same factual background," concern "the same harm," and assert causes of action

that could have been averred here. Id. at *8-9. First, Plaintiffs filed-more than two months

after the First Court of Appeals ruled in favor of Defendant-Plaintiffs' First Amended Original

Petition ("Amended Petition")-which improperly sought to join nine new defendants and add

twelve causes of action. The Amended Petition was based upon the same set of facts and

circumstances alleged in Plaintiffs' Original Petition, the Houston BBB's business review and

rating of John Moore-and merely reflected counsel's ability to "conceive of different theories

4
3818625
ofreliefbased upon the same factual background.". Id. at *8; Plaintiffs' First Amended Original

Petition~~ 15-159 (Image No. 57565523).

Second, after the Court struck the Amended Petition due to Plaintiffs' violation of the

statutory stay of all trial court proceedings (see TEX. C1v. PRAC. & REM. CODE ANN. §

51.014(b)), Plaintiffs filed a separate lawsuit (the "Second Legal Action") that is essentially

identical to the Amended Petition, alleges the same set of core facts and circumstances as the

Original Petition here, and, importantly, asserts the same harm (loss of business revenue) and

seeks the same relief (money damages for such loss) as Plaintiffs sought in this lawsuit. See

Plaintiffs' First Amended Original Petition, filed with this Court in Cause No. 2013-76215

("New Petition"). 3

In short, Plaintiffs' filing of the Second Legal Action, like the filing of the Texas SLAPP

lawsuit by the plaintiffs in Kinney, supports a conclusion by this Court "that a lesser sanction

would not ... serve[] the purpose of deterrence." Id. at *9 ("Given the history of the litigation,

the trial court could have reasonably determined that a lesser sanction would not have served the

purpose of deterrence.") ..

In Kinney, the appellate court ruled that it was not an abuse of discretion for the trial

court to award sanctions under Chapter 27 in an amount equal to 1.66 times the amount of

attorney's fees awarded to the defendant in the first SLAPP lawsuit. Id. at *10. Here, the jury

determined the reasonable attorney's fees amount to be $250,001.44. That amount multiplied by

1.66 equals $415,000. Accordingly, Defendant requests that the Court (1) find that Plaintiffs

brought this lawsuit to deter or prevent Defendant from exercising its right of free speech, that

Plaintiffs have filed a subsequent lawsuit for the same purpose, and that, considering the above,

The Defendant requests that the Court take judicial notice of all of the papers on file and all of the proceedings
in Cause No. 2013-76215 in connection with its awarding sanctions against Plaintiffs.

5
3818625
sanctions in at least the amount of $415,000 are necessary to deter Plaintiffs from bringing

subsequent SLAPP lawsuits and (2) based on the above, enter a final judgment requiring

Plaintiffs to pay to Defendant at least $415,000 in sanctions under Section 27.009(a)(2). TEX.

CIV. PRAC. & REM. CODE ANN. § 27.009(a)(l) (West 2014).

IV. CONCLUSION

In consideration of the foregoing, Defendant respectfully requests that the Court enter a

final judgment which provides for the following:

I. an order that Plaintiffs' claims against Defendant be dismissed with prejudice in
their entirety and that Plaintiffs take nothing on all of their claims;

2. an award to Defendant of attorneys' fees incurred by Defendant in defending this
legal action in an amount of at least $250,001.44;

3. that all costs of court incurred in this cause be taxed against Plaintiffs;

4. an award to Defendant of $6,237.77 for expenses incurred by Defendant in
defending this legal action;

5. an award to Defendant of not less than $415,000 in sanctions against Plaintiffs;
and

6. For such other and further relief to which it may be entitled.

Dated: August 4, 2014.

Respectfully submitted,

PORTER HEDGES LLP

By: Isl Jeffrey R. Elkin
Jeffrey R. Elkin, SBN 06522180
M. Harris Stamey, SBN 24060650
1000 Main Street, 36th Floor
Houston, Texas 77002-6336
Telephone: (713) 226-6617
Telecopier: (713) 226-6217
jelkin@porterhedges.com
mstamey@porterhedges.com

6
3818625
 ATTORNEYS FOR DEFENDANT
THE BETTER BUSINESS BUREAU OF
METROPOLITAN HOUSTON, INC.

CERTIFICATE OF CONFERENCE

Counsel for Plaintiffs and Defendant have conferred in a reasonable effort to resolve the
dispute without the necessity of Court intervention, and the effort failed. Therefore, it is
presented to the Court for determination.
Isl M. Harris Stamey
M. Harris Stamey

CERTIFICATE OF SERVICE

I certify that a true and correct copy of foregoing document has been served upon all
counsel ofrecord on the 4th day of August, 2014, as follows:

Lori Hood D By facsimile transmission
Tamara Madden IZl By electronic transmission
Brian P. Johnson D By deposit in the United States Mail
919 Milam Street, Suite 1700
D ByCMRRR
Houston, TX 77002
(713) 222-2323 (telephone) D By hand-delivery
(713) 222-2226 (facsimile)
lhood@johnsontrent.com
tmadden@johnsontrent.com
bjohnson@johnsontrent.com

ATTORNEY FOR PLAINTIFFS, JOHN
MOORE SERVICES, INC. AND JOHN
MOORE RENOVATION, LLC

Isl M. Harris Stamey
M. Harris Stamey

7
3818625
 7
CAUSE NO. 2012-35162

JOHN MOORE SERVICES, INC. and § IN THE DISTRICT COURT OF
JOHN MOORE RENOVATION, LLC, §
§
Plaintiffs, §
§
v. § HARRIS COUNTY, TEXAS
§
THE BETTER BUSINESS BUREAU OF §
METROPOLITAN HOUSTON, INC., §
§
Defendant. § 269th JUDICIAL DISTRICT

CHARGE OF THE COURT

Members of the Jury:

After the closing arguments, you will go to the jury room to decide the case, answer the
questions that are attached, and reach a verdict You may discuss the case with other jurors only
when you are all together m the jury room

Remember my previous mstructlons Do not discuss the case with anyone else, either in
person or by any other means. Do not do any independent mvestigation about the case or
conduct any research. Do not look up any words in dictionaries or on the Internet. Do not post
information about the case on the Internet Do not share any special knowledge or experiences
with the other jurors Do not use your phone or any other electronic device during your
deliberations for any reason.

Any notes you have taken are for your own personal use. You may take your notes back
into the jury room and consult them during deliberations, but do not show or read your notes to
your fellow jurors during your deliberations. Your notes are not evidence. Each of you should
rely on your independent recollection of the evidence and not be influenced by the fact that
another juror has or has not taken notes.

You must leave your notes with the bailiff when you are not deliberating. The bailiff will
give your notes to me promptly after collecting them from you. I will make sure your notes are
kept in a safe, secure location and not disclosed to anyone. After you complete your
deliberations, the bailiff will collect your notes. When you are released from jury duty, the
bailiff will promptly destroy your notes so that nobody can read what you wrote.

FILED
Chris Daniel
District Clerk

1

EXHIBIT A
 I. INSTRUCTIONS FOR ANSWERING THE QUESTIONS

Here are the instructions for answering the questions.

1. Do not let bias, prejudice, or sympathy play any part m your decision.

2. Base your answers only on the evidence admitted in court and on the law that is in these
instructions and questions Do not consider or discuss any evidence that was not admitted in
the courtroom

3. You are to make up your own minds about the facts. You are the sole judges of the
credibility of the witnesses and the weight to give their testimony. But on matters of law,
you must follow all of my mstructions

4. If my instructions use a word in a way that is different from its ordinary meaning, use the
meaning I give you, which will be a proper legal definition.

5. All the questions and answers are important. No one should say that any question or answer
is not important.

6. Answer "Yes" or "No" to all questions unless you are told otherwise. A "Yes" answer must
be based on a preponderance of the evidence unless you are told otherwise. Whenever a
question requires an answer other than "Yes" or "No," your answer must be based on a
preponderance of the evidence unless you are told otherwise

The term "preponderance of the evidence" means the greater weight of credible evidence
presented in this case. If you do not find that a preponderance of the evidence supports a
"Yes" answer, then answer "No." A preponderance of the evidence is not measured by the
number of witnesses or by the number of documents admitted in evidence. For a fact to be
proved by a preponderance of the evidence, you must find that the fact is more likely true
than not true

A fact may be established by direct evidence or by circumstantial evidence or both. A fact is
established by direct evidence when proved by documentary evidence or by witnesses who
saw the act done or heard the words spoken. A fact is established by circumstantial evidence
when it may be fairly and reasonably inferred from other facts proved.

7. Do not decide who you think should win before you answer the questions and then just
answer the questions to match your decision. Answer each question carefully without
considering who will win. Do not discuss or consider the effect your answers will have.

8. Do not answer questions by drawing straws or by any method of chance.

9. Some questions might ask you for a dollar amount. Do not agree in advance to decide on a
dollar amount by adding up each juror's amount and then figuring the average.

10. Do not trade your answers. For example, do not say, "I will answer this question your way if
you answer another question my way."

2
 11. Unless otherwise instructed, the answers to the questions must be based on the decision of at
least 10 of the 12 jurors. The same 10 jurors must agree on every answer. Do not agree to be
bound by a vote of anything less than 10 jurors, even if it would be a majority.

As I have said before, if you do not follow these instructions, you will be guilty of juror
misconduct, and I might have to order a new trial and start this process over again. This would
waste your time and the parties' money, and would require the taxpayers of this county to pay for
another trial. If a juror breaks any of these rules, tell that person to stop and report it to me
immediately.

II. DEFINITIONS

As used in this Charge, the following words have the following meanings:

1) "Houston BBB" means The Better Business Bureau of Metropolitan Houston, Inc.

2) "John Moore" means John Moore Services, Inc and John Moore Renovations, LLC.

r-
......
0
<">
.fl; 2014. /T) (. /">

~
2
3644753
 CAUSE NO. 2012-35162

JOHN MOORE SERVICES, INC. and § IN THE DISTRICT COURT OF
JOHN MOORE RENOVATION, LLC §
Plaintiffs, §
V. § HARRIS COUNTY, TEXAS
§
THE BETTER BUSINESS BUREAU OF §
METROPOLITAN HOUSTON, INC. §
Defendant. § 269rn JUDICIAL DISTRICT COURT

FINAL JUDGMENT

On July 16, 2013, the First Court of Appeals entered judgment in the original

dated October 3, 2012. On February 14, 2014, the Texas Supreme Court denied Plaintiffs John

Moore Services, Inc. and John Moore Renovation, LLC"s (collectively "Plaintiffs'' or "John

Moore'') petition for review. _?n April 4, 2014, the First Court of Appeals issued its mandat~
~s ca~lfttf~ and certified its judgment to this Court for observance.
On July 21, 2014, the Houston BBB remaining claim for attorney's fees was tried to a

jury. Plaintiffs appeared by their representative and by their attorneys of record and announced

ready for trial. The Houston BBB appeared by its representative and by its attorneys of record

announced ready for trial. A jury consisting of twelve qualified jurors were duly empaneled, and
CertifiedDocumentNumber:61943380-Page3of7

the jury reached a verdict on July 22, 2014.

The Charge of the Court. Questions, Answers, and the Verdict Certificate are

incorporated herein for all purposes. Consistent with the jury's findings, the Court renders

judgment for the Houston BBB and against Plaintiffs for the following amounts:

~;b,+A
3821737
 (i) $106,369.28 for representation in the trial court before and during Houston BBB· s

original interlocutory appeal, plus post-judgment interest thereon, at the statutory

rate of 5% per annum until paid;

(ii) $81,360.80 for representation in the Court of Appeals for the original

interlocutory appeal, plus post-judgment interest thereon, at the statutory rate of

5% per annum until paid;

(iii) $37,982.08 for representation in the petition-for-review stage to the Supreme

Court of Texas for the original interlocutory appeal, plus post-judgment interest

thereon, at the statutory rate of 5% per annum until paid; and

(iv) $24,289.28 for representation in the trial court after the original interlocutory

appeal was decided, plus post-judgment interest thereon, at the statutory rate of

5% per annum until paid.

Having considered the foregoing, the Defendant's Motion for Entry of Final Judgment,

including attachments. the Plaintiffs' response, including attachments, if any, Defendant's reply,

if any, the admissible evidence, the arguments of counsel, the pleadings on file, the evidence

presented at trial, the jury·s verdict, and the judgment of the First Court of Appeals, the Court is

of the opinion that the Motion should be GRANTED in ~and that Final Judgment be

entered. It is therefore, ~
CertifiedDocumentNumber:61943380-Page4of7

ORDERED, ADJUDGED AND DECREED that Defendant The Better Business Bureau

of Metropolitan Houston, Inc.'s Motion for Entry of Final Judgment and for Award~-u

further;

2
3821737
 ORDERED, ADJUDGED AND DECREED that Plaintiffs claims are DISMISSED IN

THEIR ENTIRETY WITH PREJUDICE, and that Plaintiffs TAKE NOTHING on their claims.

It is further,

ORDERED, ADJUDGED AND DECREED that Defendant The Better Business Bureau

of Metropolitan Houston, Inc. have and recover from Plaintiffs, whom shall be jointly and

severally liable for such amounts, as a reasonable fee for the necessary services of Houston

BBB's attorneys in defending against John Moore's legal action:

(i) $106,369.28 for representation in the trial court before and during Houston

BBB's original interlocutory appeal, plus post-judgment interest thereon, at the

statutory rate of 5% per annum until paid;

(ii) $81,360.80 for representation in the Court of Appeals for the original

interlocutory appeal, plus post-judgment interest thereon, at the statutory rate of

5% per annum until paid;

(iii) $37 ,982.08 for representation m the petition-for-review stage to the Supreme

Court of Texas for the original interlocutory appeal, plus post-judgment interest

thereon, at the statutory rate of 5% per annum until paid; and

(iv) $24,289.28 for representation in the trial court after the original interlocutory
CertifiedDocumentNumber:61943380-Page5of7

appeal was decided, plus post-judgment interest thereon, at the statutory rate of

5% per annum until paid,

for a total of $250,001.44, plus post-judgment interest thereon, at the statutory rate of 5% per

annum until paid, and which, based on the evidence admitted and considered in this cause, the

Court finds to be just and equitable. It is further,

3
3821737
'· ORDERED, ADJUDGED AND DECREED that Defendant The Better Business Bureau

of Metropolitan Houston, Inc. have and recover from Plain · fs, whom shall be jointly and

ate~ annum until

against this legal acf , an amount whi , ased on the evidence a itted and considered in this

cause, the Court FINDS to be just and equitable. It is further,

ORDERED, ADJUDGED AND DECREED that Defendant The Better Business Bureau

annum until paid, as sanctions under Texas Civil Practice and Remedies Code § 27.009(a)(2).

The Court finds that Plaintiffs brought this lawsuit to deter or pre nt Defendan from exercising

its right o ree speech

filed

and proceedings in connection with Cause No. 2013-76215. In consideration of the above,

including the award to Defendant of attomey·s fees in this lawsuit, and all of the evidence

admitted and considered in this cause, the ~~anction against Plaintiffs under Section
~
27.009(a)(2) in the amount of~ectly rel~~duct an])o
be appropriate, sufficient, and necessary to deter Plaintiffs from bringing similar actions
CertifiedDocumentNumber:61943380-Page6of7

described by Chapter 27 of the Texas Civil Practice and Remedies Code, and that lesser

sanctions would be insufficient. It is further,

ORDERED, ADJUDGED AND DECREED that all costs of court expended or incurred

in this cause are hereby taxed against Plaintiffs, wh~I be jointly and severally liable for

4
3821737
 such amount, plus post-judgment interest thereon, at the statutory rate of 5% per annum until

paid.

The Court orders execution to issue for this judgment.

THIS IS A FINAL JUDGMENT. ALL RELIEF NOT EXPRESSLY GRANTED

HEREIN IS DENIED.

SIGN ED this ~a y of .L-~:,.>:4-=:__..<.........,-.:

JUDGE PRESIDING

APPROVED AS TO FORM:

PORTER HEDGES LLP

By: Isl Jeffrey R. Elkin
Jeffrey R. Elkin, SBN 06522180
M. Harris Stamey, SBN 24060650
I000 Main Street, 36th Floor
Houston, Texas 77002-6336
Telephone: (713) 226-6617
Telecopier: (713) 226-6217
jelkin@porterhedges.com
mstamey@porterhedges.com

ATTORNEYS FOR DEFENDANT
CertifiedDocumentNumber:61943380-Page7of7

5
3821737
 I, Chris Daniel, District Clerk of Harris
County, Texas certify that this is a true and
correct copy of the original record filed and or
recorded in my office, electronically or hard
copy, as it appears on this date.
Witness my official hand and seal of office
this April 20, 2015

Certified Document Number: 61943380 Total Pages: 7

Chris Daniel, DISTRICT CLERK
HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated
documents are valid. If there is a question regarding the validity of this document and or seal
please e-mail support@hcdistrictclerk.com

Exhibit N
 7
CAUSE NO. 2012-35162

JOHN MOORE SERVICES, INC. and § IN THE DISTRICT COURT OF
JOHN MOORE RENOVATION, LLC, §
§
Plaintiffs, §
§
v. § HARRIS COUNTY, TEXAS
§
THE BETTER BUSINESS BUREAU OF §
METROPOLITAN HOUSTON, INC., §
§
Defendant. § 269 th JUDICIAL DISTRICT

CHARGE OF THE COURT

Members of the Jury:

After the closing arguments, you will go to the jury room to decide the case, answer the
questions that are attached, and reach a verdict You may discuss the case with other jurors only
when you are all together In the jury room

Remember my previous InstructlOns Do not discuss the case with anyone else, either in
person or by any other means. Do not do any independent Investigation about the case or
conduct any research. Do not look up any words in dictionanes or on the Internet. Do not post
information about the case on the Internet Do not share any special knowledge or experiences
with the other jurors Do not use your phone or any other electronic device during your
deliberations for any reason.

Any notes you have taken are for your own personal use. You may take your notes back
into the jury room and consult them during deliberatlOns, but do not show or read your notes to
your fellow jurors during your delIberations. Your notes are not evidence. Each of you should
rely on your independent recollection of the evidence and not be influenced by the fact that
another juror has or has not taken notes.

You must leave your notes with the bailiff when you are not deliberating. The bailiff will
give your notes to me promptly after collecting them from you. I will make sure your notes are
~~ kept in a safe, secure location and not disclosed to anyone. After you complete your
OJ ~ g deliberations, the bailiff will collect your notes. When you are released from jury duty, the
~~~
'" S m bailiff will promptly destroy your notes so that nobody can read what you wrote.
g~~
ro~cn
oen!!:
~om

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!~ F I LED
Chris Daniel
District Clerk

JUL 2 2 2014 .,a
Time: ~'5o~
·---H~a~rr~la~c~o~un~t~.~r---
1
By.~,.______~~~~_____

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 I. INSTRUCTIONS FOR ANSWERING THE QUESTIONS

Here are the instructions for answering the questions.

1. Do not let bias, prejudice, or sympathy play any part In your decision.

2. Base your answers only on the evidence admitted in court and on the law that is in these
instructions and questions Do not consIder or discuss any evidence that was not admitted in
the courtroom

3. You are to make up your own minds about the facts. You are the sole judges of the
credibility of the witnesses and the weIght to give their testimony. But on matters of law,
you must follow all of my Instructions

4. If my instructions use a word in a way that is different from its ordinary meaning, use the
meaning I give you, which will be a proper legal definition.

5. All the questions and answers are important. No one should say that any question or answer
is not important.

6. Answer "Yes" or "No" to all questions unless you are told otherwise. A "Yes" answer must
be based on a preponderance of the evidence unless you are told otherwise. Whenever a
question requires an answer other than "Yes" or "No," your answer must be based on a
preponderance of the evidence unless you are told otherwise

The term "preponderance of the evidence" means the greater weight of credible evidence
presented in this case. If you do not find that a preponderance of the evidence supports a
"Yes" answer, then answer "No." A preponderance of the evidence is not measured by the
number of witnesses or by the number of documents admitted in evidence. For a fact to be
proved by a preponderance of the evidence, you must find that the fact is more likely true
than not true

A fact may be established by direct evidence or by circumstantial evidence or both. A fact is
established by direct evidence when proved by documentary evidence or by witnesses who
saw the act done or heard the words spoken. A fact is established by circumstantial evidence
when it may be fairly and reasonably inferred from other facts proved.

7. Do not decide who you think should win before you answer the questions and then just
answer the questions to match your decision. Answer each question carefully without
considering who will win. Do not discuss or consider the effect your answers will have.

8. Do not answer questions by drawing straws or by any method of chance.

9. Some questions mIght ask you for a dollar amount. Do not agree in advance to decide on a
dollar amount by adding up each juror's amount and then figuring the average.

10. Do not trade your answers. For example, do not say, "I WIll answer this question your way if
you answer another question my way."

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109
11. Unless otherwise instructed, the answers to the questions must be based on the decision of at
least 10 of the 12 jurors. The same 10 jurors must agree on every answer. Do not agree to be
bound by a vote of anything less than 10 jurors, even if it would be a majority.

As I have Said before, if you do not follow these instructions, you will be guilty of juror
misconduct, and I might have to order a new trial and start this process over again. This would
waste your time and the parties' money, and would require the taxpayers ofthis county to pay for
another trial. If a juror breaks any of these rules, tell that person to stop and report it to me
immediately.

II. DEFINITIONS

As used in this Charge, the following words have the following meanings:

1) "Houston BBB" means The Better Business Bureau of Metropolitan Houston, Inc.

2) "John Moore" means John Moore Services, Inc and John Moore Renovations, LLC.

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 III. QUESTIONS

Question No.1

What is a reasonable fee for the necessary services of Houston BBB' s attorneys in defending
against John Moore's legal action, stated in dollars and cents?

You are instructed that the following factors should be considered when
determining the amount of attorneys' fees:

a. the time and labor involved, the novelty and difficulty of the
questions involved, and the skill required to perform the legal
services properly;

b. the likelihood that the acceptance of the particular employment
will preclude other employment by the lawyer;

c the fee customarily charged in the locality for similar services;

d. the amount mvolved and the results obtained;

e. the time limitatIOns Imposed by the client or the circumstances;

f. the nature and length of the professional relationship with the
client,

g the experience, reputatIOn and ability of the lawyer or lawyers
performing the services; and

h. whether the fee is fixed or contingent on results obtained or
uncertainty of collection before the legal services have been
rendered.

Answer with an amount for each of the following:

a. For representation in the trial court before and during Houston BBB's original
interlocutory appeal.

Answer: $ {o:l- . QS

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111
d. For representation in the trial court after the original interlocutory appeal was decided.

Answer: $ ~4, ~ . ~'B

e. For representation after thIS trial in the Court of Appeals.

Answer: $ _ _~¢~ ____
f. For representation after this trial at the petition-for-review stage in the Supreme Court of
Texas.

JO
Answer: $ - - . . . ! . . . - - - - -

g. For representation after this tnal at the merits-briefing stage in the Supreme Court of
Texas.

Answer: $ _----'f4=-_ __

h. For representatIOn after thIS trial through oral argument and the completion of
proceedings in the Supreme Court of Texas.

Answer. $ _----'/0=--___

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112
 IV. INSTRUCTIONS REGARDING THE PRESIDING JUROR

1. When you go into the jury room to answer the questions, the first thing you will need to do is
choose a presiding juror

2. The presiding juror's duties are to:

a. have the complete charge read aloud if it will be helpful to your deliberations;

b. preside over your deliberations-meaning to manage the discussions and see that you
follow these instructions;

c. give written questions or comments to the bailiff, who will give them to the judge;

d. write down the answers on which you agree;

e. get the signatures for the verdict certIficate, and

f. notify the bailiff that you have reached a verdict.

Do you understand the dutIes of the presidmgjuror? If you do not, please tell me now.

V. INSTRUCTIONS FOR SIGNING THE VERDICT CERTIFICATE

1. Unless otherwise instructed, you may answer the questions on a vote of 10 jurors. The same
10 jurors must agree on every answer in the charge. This means you may not have one group
of 10 jurors agree on one answer and a different group of 10 jurors agree on another answer.

2. If 10 jurors agree on every answer, those 10 Jurors sign the verdict.

3. If 11 jurors agree on every answer, those 11 jurors sign the verdict.

4. If all 12 of you agree on every answer, you are unanimous and only the presiding juror signs
the verdict.

5. All jurors should deliberate on every question You may end up with all 12 of you agreeing
on some answers, while only 10 or 11 of you agree on other answers. But when you sign the
verdict, only those 10 who agree on every answer will sign the verdict.

Do you understand these mstructions? If you do not, please tell me now.

Judge, 269th District Court

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 CERTIFICATE

We, the jury, have answered the foregoing questions as indicated and return our answers
into court as our verdict.

I certify that the jury was unanimous m answer to the following questions:

Answer "All" or list question, includmg subparts: A/I

Printed Name of Juror Presiding

If the answers to some questions were not unanimous, the jurors who agreed to those answers
must certify as follows.

We agree to the answers to the following questions:

List questions, including subparts:

SIGNATURE NAME PRINTED

1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

11.
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114

Exhibit O
 g6f;
CAUSE NO. 2012-35162 5-/
JOHN MOORE SERVICES, INC. and § IN THE DISTRICT COURT OF
JOHN MOORE RENOVATION, LLC §
Plaintiffs, §
V. § HARRIS COUNTY, TEXAS
§
THE BETTER BUSINESS BUREAU OF §
METROPOLITAN HOUSTON, INC. §
Defendant. § 269 TH JUDICIAL DISTRICT COURT

FINAL JUDGMENT

On July 16, 2013, the First Court of Appeals entered judgment in the original

dated October 3, 2012. On February 14,2014, the Texas Supreme Court denied Plaintiffs John

Moore Services, Inc. and John Moore Renovation, LLC's (collectively "Plaintiffs" or "John

Moore") petition for review. On April 4, 2014, the First Court of Appeals issued its mandat~
dh'is ca~nd certified its judgment to this Court for observance.
On July 21, 2014, the Houston BBB remaining claim for attorney's fees was tried to a

jury. Plaintiffs appeared by their representative and by their attorneys of record and announced

ready for trial. The Houston BBB appeared by its representative and by its attorneys of record

announced ready for trial. A jury consisting of twelve qualified jurors were duly empaneled, and

the jury reached a verdict on July 22, 2014.

The Charge of the Court, Questions, Answers, and the Verdict Certificate are

incorporated herein for all purposes. Consistent with the jury's findings, the Court renders

judgment for the Houston BBB and against Plaintiffs for the following amounts:

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 (i) $106,369.28 for representation in the trial court before and during Houston BBB's

original interlocutory appeal, plus post-judgment interest thereon, at the statutory

rate of 5% per annum until paid;

(ii) $81,360.80 for representation in the Court of Appeals for the original

interlocutory appeal, plus post-judgment interest thereon, at the statutory rate of

5% per annum until paid;

(iii) $37,982.08 for representation In the petition-for-review stage to the Supreme

Court of Texas for the original interlocutory appeal, plus post-judgment interest

thereon, at the statutory rate of 5% per annum until paid; and

(iv) $24,289.28 for representation in the trial court after the original interlocutory

appeal was decided, plus post-judgment interest thereon, at the statutory rate of

5% per annum until paid.

Having considered the foregoing, the Defendant's Motion for Entry of Final Judgment,

including attachments, the Plaintiffs' response, including attachments, if any, Defendant's reply,

if any, the admissible evidence, the arguments of counsel, the pleadings on file, the evidence

presented at trial, the jury's verdict, and the judgment of the First Court of Appeals, the Court is

of the opinion that the Motion should be GRANTED in &@'t®and that Final Judgment be

entered. It is therefore, ~
ORDERED, ADJUDGED AND DECREED that Defendant The Better Business Bureau

of Metropolitan Houston, Inc.'s Motion for Entry of Final Judgment and for Award

Costs, Expenses, and Sanctions against Plaintiffs is hereby GRANTED in 1
-~~~

further;

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 ORDERED, ADJUDGED AND DECREED that Plaintiffs claims are DISMISSED IN

THEIR ENTIRETY WITH PREJUDICE, and that Plaintiffs TAKE NOTHING on their claims.

It is further,

ORDERED, ADJUDGED AND DECREED that Defendant The Better Business Bureau

of Metropolitan Houston, Inc. have and recover from Plaintiffs, whom shall be jointly and

severally liable for such amounts, as a reasonable fee for the necessary services of Houston

BBB's attorneys in defending against John Moore's legal action:

(i) $106,369.28 for representation in the trial court before and during Houston

BBB's original interlocutory appeal, plus post-judgment interest thereon, at the

statutory rate of 5% per annum until paid;

(ii) $81,360.80 for representation in the Court of Appeals for the original

interlocutory appeal, plus post-judgment interest thereon, at the statutory rate of

5% per annum until paid;

(iii) $37,982.08 for representation In the petition-for-review stage to the Supreme

Court of Texas for the original interlocutory appeal, plus post-judgment interest

thereon, at the statutory rate of 5% per annum until paid; and

(iv) $24,289.28 for representation in the trial court after the original interlocutory

appeal was decided, plus post-judgment interest thereon, at the statutory rate of

5% per annum until paid,

for a total of $250,001.44, plus post-judgment interest thereon, at the statutory rate of 5% per

annum until paid, and which, based on the evidence admitted and considered in this cause, the

Court finds to be just and equitable. It is further,

3
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 ORDERED, ADJUDGED AND DECREED that Defendant The Better Business Bureau

utory

itted and considered in this

cause, the Court FINDS to be just and equitable. It is further,

ORDERED, ADJUDGED AND DECREED that Defendant The Better Business Bureau

annum until paid, as sanctions under Texas Civil Practice and Remedies Code § 27.009(a)(2).

The Court finds that Plaintiffs brought this lawsuit to deter or pre nt Defendan from exercising

filed

and proceedings in connection with Cause No. 2013-76215. In consideration of the above,

including the award to Defendant of attorney's fees in this lawsuit, and all of the evidence

admitted and considered in this cause, ~~~anction against Plaintiffs under Section

27.009(a)(2) in the amount of~et;t1Y ~a ~~duct an{ho
be appropriate, sufficient, and necessary to deter Plaintiffs from bringing similar actions

described by Chapter 27 of the Texas Civil Practice and Remedies Code, and that lesser

sanctions would be insufficient. It is further,

ORDERED, ADJUDGED AND DECREED that all costs of court expended or incurred

in this cause are hereby taxed against Plaintiffs, who6"'~~:l be jointly and severally liable for

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118
such amount, plus post-judgment interest thereon, at the statutory rate of 5% per annum until

paid.

The Court orders execution to issue for this judgment.

THIS IS A FINAL JUDGMENT. ALL RELIEF NOT EXPRESSLY GRANTED

HEREIN IS DENIED.

SIGNED this ~ay of~-=~=-....'---::o""-":'

JUDGE PRESIDING

APPROVED AS TO FORM:

PORTER HEDGES LLP

By: lsi Jeffrey R. Elkin
Jeffrey R. Elkin, SBN 06522180
M. Harris Stamey, SBN 24060650
1000 Main Street, 36th Floor
Houston, Texas 77002-6336
Telephone: (713) 226-6617
Telecopier: (713) 226-6217
jelkinUVporterhedges.com
mstameyUVporterhed ges.com

ATTORNEYS FOR DEFENDANT

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