the Better Business Bureau of Metropolitan Houston, Inc., the Better Business Bureau of Metropolitan Houston Education Foundation, Dan Parsons, Chris Church, Church Enterprises, Inc., Gary Milleson, Ronald N. McMillan, D' Artagnan Bebel, Mark Goldie, Cha v. John Moore Services, Inc. and John Moore Renovation, LLC

ACCEPTED
01-14-00687-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
9/29/2015 2:40:09 PM
CHRISTOPHER PRINE
CLERK

No. 01-14-00687-CV

FILED IN
IN THE 1st COURT OF APPEALS
FIRST COURT OF APPEALS HOUSTON, TEXAS
HOUSTON, TEXAS 9/29/2015 2:40:09 PM
CHRISTOPHER A. PRINE
Clerk

THE BETTER BUSINESS BUREAU OF
METROPOLITAN HOUSTON, INC., THE BETTER
BUSINESS BUREAU OF METROPOLITAN
HOUSTON EDUCATION FOUNDATION, DAN
PARSONS, CHRIS CHURCH, CHURCH
ENTERPRISES, INC., GARY MILLESON, RONALD
N. MCMILLAN, D’ARTAGNAN BEBEL, MARK
GOLDIE, CHARLIE HOLLIS, AND STEVEN
LUFBURROW,
Appellants,
v.

JOHN MOORE SERVICES, INC. AND
JOHN MOORE RENOVATION, LLC,
Appellees.
APPELLANTS’ MOTION TO VACATE
MEMORANDUM ORDER OF REFERRAL TO
MEDIATION AND RELATED ORDERS

Lauren B. Harris
Texas Bar No. 02009470
lharris@porterhedges.com
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
Attorneys for Appellants
TO THE HONORABLE FIRST COURT OF APPEALS:

Appellants The Better Business Bureau of Metropolitan Houston, Inc. (the

“Houston BBB”), The Better Business Bureau of Metropolitan Houston Education

Foundation, Dan Parsons, Chris Church, Church Enterprises, Inc., Gary Milleson,

Ronald N. McMillan, D’Artagnan Bebel, Mark Goldie, Charlie Hollis, and Steven

Lufburrow file this motion to vacate the April 1, 2015 Memorandum Order of

Referral to Mediation and related orders extending the mediation deadlines and

would respectfully show the Court as follows:

A. Background

Appellees John Moore Services, Inc. and John Moore Renovation, LLC

(collectively, “John Moore”) filed their first lawsuit against the Houston BBB (the

“first case”) on June 18, 2012. CR948. The Houston BBB moved to dismiss the

first case pursuant to the Texas Citizens’ Participation Act (“TCPA”), and the

motion was denied. See TEX. CIV. PRAC. & REM. CODE § 27.001 et seq. In an

opinion issued in July 2013, this Court reversed the denial of the Houston BBB’s

motion to dismiss and remanded the case to the trial court for consideration of

sanctions and attorneys’ fees. See Better Bus. Bureau of Metro. Houston, Inc. v.

John Moore Servs., Inc., 441 S.W.3d 345 (Tex. App.—Houston [1st Dist.] 2013,

pet. denied).

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 On remand, a jury awarded the Houston BBB attorneys’ fees in the amount

of $250,001.44. The trial court subsequently entered final judgment in that amount

and assessed sanctions against John Moore in the amount of $6,000. CR1102-06.

John Moore appealed the final judgment in the first case to this Court: Cause No.

01-14-00906-CV. The first case has been fully briefed.

Meanwhile, in December 2013, while the first case was pending in the Texas

Supreme Court on John Moore’s petition for review, John Moore filed this second

lawsuit against the Houston BBB and some of its officers and directors

(collectively, the “Houston BBB Defendants”) based on the same facts and events

as the first case (the “second case”). CR7-32. The Houston BBB Defendants

timely filed a motion to dismiss the lawsuit under the TCPA, but the trial court

granted the motion after the statutory time period. See TEX. CIV. PRAC. & REM.

CODE §27.005(a); CR1100-01. The Houston BBB Defendants filed this

interlocutory appeal to challenge the denial of its motion by “operation of law”

under the TCPA. TEX. CIV. PRAC. & REM. CODE at §27.008; CR1112-14. All the

briefing in the second case has been completed, and the case was argued on

March 31, 2015.

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 At the conclusion of the oral argument of the second case, the Court raised

the issue of the parties mediating again.1 On April 1, 2015, the Court entered a

Memorandum Order of Referral to Mediation (“Order”). The Order required the

mediation to take place within 45 days, or by May 16, 2015.

Since that time, four different mediation dates have been scheduled; prior to

each date, however, John Moore has requested that the mediation be rescheduled to

a later date:

5-27-15: The original date for the mediation was May 27, 2015.2 See
Parties’ Notification to Court of Mediator, dated 4-16-15.
However, prior to the mediation, John Moore advised the
Houston BBB Defendants of its desire to reschedule the
mediation.

6-29-15: The parties rescheduled the mediation for the end of June. See
Parties’ Revised Notification to Court of Mediator, dated 5-28-
15. But, John Moore later asked that the June mediation be
rescheduled due to what it described as “serious personal issues
affecting the principal for John Moore and John Moore’s
principal attorney.” Parties’ Second Revised Notification to
Court of Mediator and Request for Extension of Deadline,
dated 6-29-15.

8-17-15: The mediation was rescheduled for mid-August and the parties
requested and received an extension of the mediation deadline

1
The Houston BBB and John Moore participated, unsuccessfully, in two, single-
day mediations on May 9, 2013 and May 15, 2013.
2
The parties sought and obtained an extension of the original 45-day mediation
deadline. See Parties’ Notification to Court of Mediator, dated 4-16-15; Order, dated 5-
14-15.

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 to accommodate that date. See id.; Order, dated 6-30-15. On
August 5, 2015, additional counsel appeared for John Moore.
See Appellees’ Notice of Appearance of Additional Counsel,
dated 8-5-15.3 Nevertheless, John Moore requested that the
August mediation be rescheduled due to “serious personal
issues involving counsel for John Moore []” and the parties
requested and received an extension of the mediation deadline.
See Parties’ Motion for Extension of Time to Complete
Mediation, dated 8-25-15; Notice that Court granted joint
motion for extension to complete the mediation, dated 8-27-15.

9-22-15: Most recently, the mediation was scheduled for September 22,
2015. See id. But, a week before the mediation, John Moore
informed the Houston BBB Defendants that it wants to
reschedule the mediation for some time after November 1,
2015.

B. Argument

This dispute was ordered to mediation almost six months ago. Since that

time, the mediation has been scheduled four times: May 27; June 29; August 17;

and September 22, 2015. And, it has been cancelled four times. In the past, each

time John Moore asked to reschedule the mediation, the Houston BBB Defendants

consented—even filing joint motions to extend the mediation deadlines when

necessary—in order to accommodate John Moore’s counsel who the Houston BBB

Defendants understand is experiencing serious health issues.

3
The next day, lead counsel’s former law firm withdrew as counsel for John
Moore. See Johnson, Trent, West & Taylor, LLP’s Unopposed Motion to Withdraw,
dated 8-6-15.

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 Most recently, however, John Moore cancelled the mediation scheduled for

September 22 and requested that it be rescheduled for some time after

November 1, 2015, eight months after the Order was issued. Although the

Houston BBB Defendants have accommodated John Moore and its counsel over

the last few months, the continual delay has grown prejudicial to the Houston BBB

Defendants and stalled any decision on the merits. A great deal of time has now

passed since this case was submitted to the Court and there is no assurance that the

mediation will take place in November 2015, or ever.

Further delay will not advance the purposes of the relevant statute or serve

the interests of the parties. The statute on which this appeal is based—the TCPA—

was promulgated in order to, among other things, affect a prompt resolution of

certain claims. There are two related cases at issue here that have been fully

briefed, and should be decided without further delay. The referral to mediation was

at the Court’s initiative, not either party’s request. Thus, the withdrawal of the

Order would not harm any particular party, would alleviate the burden on John

Moore and its counsel in having to attend a full-day mediation despite counsel’s

serious health issues, and would allow the case to proceed on the merits.

This is an accelerated appeal involving the issue of whether the Houston

BBB Defendants are entitled to dismissal pursuant to the TCPA, an issue this

Court has already considered and resolved in the Houston BBB’s favor. This

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second case is part of serial litigation that has been ongoing since 2012 and needs

to be resolved. It has been fully briefed and argued and is ripe for a decision.

Accordingly, the Houston BBB Defendants seek the withdrawal of the Order

referring the case to mediation and the related orders extending the mediation

deadlines so that this appeal may be decided and this lengthy litigation can proceed

to a conclusion.

WHEREFORE, Appellants The Better Business Bureau of Metropolitan

Houston, Inc., The Better Business Bureau of Metropolitan Houston Education

Foundation, Dan Parsons, Chris Church, Church Enterprises, Inc., Gary Milleson,

Ronald N. McMillan, D’Artagnan Bebel, Mark Goldie, Charlie Hollis, and Steven

Lufburrow respectfully request that the Court vacate its April 1, 2015

Memorandum Order of Referral to Mediation and the related orders extending the

mediation deadlines.

Dated: September 29, 2015.

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Respectfully submitted,

PORTER HEDGES LLP

By: /s/ Lauren Beck Harris
Lauren B. Harris
Texas Bar No. 02009470
lharris@porterhedges.com
Jeffrey R. Elkin
Texas Bar No. 06522180
Susan K. Hellinger
Texas Bar No. 00787855
M. Harris Stamey
Texas Bar No. 24060650
1000 Main Street, 36th Floor
Houston, Texas 77002
Telephone: (713) 226-6624
Facsimile: (713) 226-6224

ATTORNEYS FOR APPELLANTS
THE BETTER BUSINESS BUREAU OF
METROPOLITAN HOUSTON, INC.,
THE BETTER BUSINESS BUREAU OF
METROPOLITAN HOUSTON
EDUCATION FOUNDATION, DAN
PARSONS, CHRIS CHURCH,
CHURCH ENTERPRISES, INC., GARY
MILLESON, RONALD N.
MCMILLAN, D’ARTAGNAN BEBEL,
MARK GOLDIE, CHARLIE HOLLIS,
AND STEVEN LUFBURROW

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 CERTIFICATE OF CONFERENCE

I hereby certify that on September 28 and 29, 2015, I contacted Bobbie L.
Stratton, counsel for Appellees, and she has informed me that her clients are
opposed to this motion.

/s/ Susan K. Hellinger
Susan K. Hellinger

CERTIFICATE OF SERVICE

Pursuant to Rules 6.3 and 9.5(b), (d), and (e) of the Texas Rules of Appellate
Procedure, this is to certify that on this 29th day of September 2015, a true and
correct copy of the foregoing was served on the following counsel of record by
U.S. first class mail and by electronic delivery as follows:

Lori Hood
Bobbie L. Stratton
Baker Donelson Bearman Caldwell & Berkowitz, P.C.
1301 McKinney Street, Suite 3700
Houston, TX 77010
(713) 650-9700
(713) 650-9701

Attorneys for Appellees John
Moore Services, Inc. and John
Moore Renovation, LLC

/s/ Lauren B. Harris
Lauren B. Harris

5105865

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