ACCEPTED
01-14-00687-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
3/9/2015 3:17:39 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 3/9/2015 3:17:39 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’ OBJECTIONS TO CONSOLIDATION
OF RELATED CASES FOR SUBMISSION
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
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
(collectively “the Houston BBB”) file this response to the Court’s March 5, 2015
order advising of its intent to consolidate the submission of this case with Cause
no. 01-14-00906-CV, John Moore Services, Inc. and John Moore Renovation, LLC
v. The Better Business Bureau of Metropolitan Houston, Inc., in the First Court of
Appeals, and would respectfully show the Court as follows:
A. Factual Background
This Court previously considered the Houston BBB’s interlocutory appeal of
a trial court order denying its motion to dismiss the lawsuit of Appellees John
Moore Services, Inc. and John Moore Renovation, LLC (collectively “John
Moore”). The Houston BBB’s motion was filed pursuant to the Texas Citizens’
Participation Act (“TCPA”), a statute that protects defendants from meritless
litigation designed to chill the exercise of free speech. 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.
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Bureau of Metro. Houston, Inc. v. John Moore Servs., Inc., 441 S.W.3d 345 (Tex.
App.—Houston [1st Dist.] 2013, pet. denied) (hereafter, “the first case”). On
remand, the trial court awarded the Houston BBB attorneys’ fees and assessed
sanctions against John Moore. CR1102-06.
While the first case was pending in the Texas Supreme Court, however, John
Moore filed this second lawsuit against the Houston BBB based on the same facts
and events, naming as defendants the Houston BBB’s individual directors and
officers (hereafter, “the second case”). CR7-32. The Houston BBB once again
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). Therefore, the Houston BBB filed this interlocutory appeal to
challenge the denial by “operation of law” under the TCPA of its motion to
dismiss. Id. at §27.008. All the briefing in the case has been completed, and oral
argument is presently set in this case for March 31, 2015.
Meanwhile, John Moore has also appealed the final judgment in the first
case awarding the Houston BBB attorneys’ fees in the amount of $250,001.44 and
sanctions in the amount of $6,000. CR1102-06. John Moore filed the appeal in
November 2014, and the clerk’s record was filed in December 2014. However, the
reporters’ record has not yet been filed, and is not due to be filed until March 12,
2015. Because the merits of that dispute have previously been addressed by this
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Court, the only challenge that John Moore can potentially raise in the first case is
to the amount of attorneys’ fees and sanctions.
B. Objections to Consolidation
Although the two cases are based on the same facts and events, the issues on
appeal and the status of the appeals are different, so the Houston BBB objects to
their consolidation for submission. Combining these cases will only serve to
further delay the resolution of this case. This case is fully briefed and ready for
submission. It involves the issue of whether the Houston BBB is entitled to
dismissal on the merits based on the TCPA, an issue this Court has already
considered and addressed. This matter is also an accelerated appeal entitled to
priority. See TEX. R. APP. P. 28; TEX. CIV. PRAC. & REM. CODE §27.008(b).
On the other hand, the first case is an appeal from a final judgment, not
entitled to an accelerated schedule. The reporters’ record has not yet been filed,
and no briefs have been filed. Since this Court has already adjudicated the merits
of the first case, the issues in that appeal will be limited to John Moore’s challenge
to the amount of attorneys’ fees and sanctions awarded against it. This is an issue
that can be decided on the briefs without the necessity of oral argument. As a
result, it is not necessary to delay the resolution of the merits of the dispute in the
second case to consider the separate attorneys’ fees issue in the first case.
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Even if these two cases were consolidated for submission, this matter would
not be fully resolved. If John Moore is successful in this appeal, this case will
proceed in the trial court on the merits. If the Houston BBB is successful in
achieving a dismissal on the merits, the case will still have to be remanded for the
consideration of attorneys’ fees and sanctions. In short, any consolidation of the
two pending appeals will not result in a full resolution of this dispute.
Consequently, the interests of judicial economy will not be served by any
consolidation of these cases for submission. It will only serve to delay the
resolution of this dispute.
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 decline to consolidate this case with
cause no. 01-14-00906-CV for submission purposes.
Dated: March 9, 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 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 9th day of March 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:
Douglas Pritchett, Jr.
Lori Hood
Tamara Madden
Johnson, Trent, West & Taylor, L.L.P.
919 Milam Street, Suite 1700
Houston, TX 77002
dpritchett@johnsontrent.com
Attorneys for Appellees John Moore Services, Inc. and
John Moore Renovation, LLC
/s/ Lauren B. Harris
Lauren B. Harris
4831030v2
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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
Combined Opinion