# John Moore Services, Inc. and John Moore Renovation, LLC v. the Better Business Bureau of Metropolitan Houston Inc. > Texas Court of Appeals, 1st District (Houston) · April 20, 2015 URL: https://www.frixlaw.com/law-library/cases/4054489 ## Case - **Court:** Texas Court of Appeals, 1st District (Houston) - **Decided:** April 20, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4054489 ## Opinion text 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 inclu [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4054489. Public record. Not legal advice.