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. 

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

ACCEPTED

01-14-00906-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

4/20/2015 7:28:25 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 4/20/2015 7:28:25 PM CHRISTOPHER A. PRINE Clerk
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 AntiSLAPP 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

ED101J016933517

By: Charleta Johnson 

CertifiedDocumentNumber:52536293-Page1of19

JOHN MOORE SERVICES, INC. and 

JOHN MOORE RENOVATION, LLC 

v. 

THE BETTER BUSINESS BUREAU OF 

METROPOLITAN HOUSTON, INC. 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

IN THE DISTRICT COURT OF 

HARRIS COUNTY, TEXAS 

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. 

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. 
CertifiedDocumentNumber:52536293-Page2of19

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 

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 
CertifiedDocumentNumber:52536293-Page3of19

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 

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 
CertifiedDocumentNumber:52536293-Page4of19

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 

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 
CertifiedDocumentNumber:52536293-Page5of19

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 

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 
CertifiedDocumentNumber:52536293-Page6of19

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 

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 
CertifiedDocumentNumber:52536293-Page7of19

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, 

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 
CertifiedDocumentNumber:52536293-Page8of19

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 

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 
CertifiedDocumentNumber:52536293-Page9of19

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 

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 
CertifiedDocumentNumber:52536293-Page10of19

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 

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 
CertifiedDocumentNumber:52536293-Page11of19

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 

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 
CertifiedDocumentNumber:52536293-Page12of19

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. 

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 
CertifiedDocumentNumber:52536293-Page13of19

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 

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 
CertifiedDocumentNumber:52536293-Page14of19

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 

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 
CertifiedDocumentNumber:52536293-Page15of19

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. 

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 
CertifiedDocumentNumber:52536293-Page16of19

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. 

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 
CertifiedDocumentNumber:52536293-Page17of19

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 

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 
CertifiedDocumentNumber:52536293-Page18of19

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, 

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 
CertifiedDocumentNumber:52536293-Page19of19

19 

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 
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

HARRIS COUNTY, TEXAS

Chris Daniel, DISTRICT CLERK

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

Certified Document Number: 52536293 Total Pages: 19

this April 20, 2015
Exhibit B
CertifiedDocumentNumber:57785942-Page1of1

NO. 2012-35162 

JOHN MOORE SERVICES, INC. and § 

JOHN MOORE RENOVATION, LLC § 

§ 

v. § 

§ 

THE BETTER BUSINESS BUREAU OF § 

METROPOLITAN HOUSTON, INC., ET AL. § 

§ 

ORDER 

Filed 13 October 04 A10:50 

Chris Daniel - District Clerk 

Harris County 

ED101 J017752205 

By: Jerri Coble ~F~ 

LFILX 

IN THE DISTRICT COURT OF 

HARRIS COUNTY, TEXAS 

269th JUDICIAL DISTRICT COURT 

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 

256783 
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

HARRIS COUNTY, TEXAS

Chris Daniel, DISTRICT CLERK

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

Certified Document Number: 57785942 Total Pages: 1

this April 20, 2015
Exhibit C
1

3486979v1

CAUSE NO. 2012-35162

JOHN MOORE SERVICES, INC. and

JOHN MOORE RENOVATION, LLC

§

§

IN THE DISTRICT COURT OF

§

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

Houston, Texas 77002

(713) 226-6617 – Office

(713) 226-6217 – Fax

ATTORNEYS FOR DEFENDANT, THE BETTER

BUSINESS BUREAU OF METROPOLITAN

HOUSTON, INC.

Filed 13 October 21 P5:58

Chris Daniel - District Clerk

Harris County

ED101J017781339

By: Jerri L. Coble

CertifiedDocumentNumber:57898801-Page1of2
2

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

Tamara Madden

919 Milam Street, Suite 1700

Houston, TX 77002

(713) 222-2323 (telephone)

(713) 222-2226 (facsimile)

lhood@johnsontrent.com

tmadden@johnsontrent.com

Attorneys for Plaintiffs, John Moore

Services, Inc. and John Moore Renovation,

LLC

☐ By facsimile transmission

☒ By electronic transmission

☐ By deposit in the United States Mail

☒ By CMRRR

☐ By hand-delivery

/s/ Jeffrey R. Elkin

Jeffrey R. Elkin

CertifiedDocumentNumber:57898801-Page2of2
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

HARRIS COUNTY, TEXAS

Chris Daniel, DISTRICT CLERK

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

Certified Document Number: 57898801 Total Pages: 2

this April 20, 2015
Exhibit D
CertifiedDocumentNumber:58115848-Page1of2

CAUSE NO. 2012-35162 

JOHN MOORE SERVICES, INC. and 

JOHN MOORE RENOVATION, LLC 

Plaintiffs, 

§ ~THE DISTRICT COURT OF 

F 1hr!-'o!e1D 

v. tl1trlct Clerk HARRIS COUNTY, TEXAS 

THE BETTER BUSINESS BUREAU OF ~V O l Z013 

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, 

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 
CertifiedDocumentNumber:58115848-Page2of2

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 I y notify ARS of 

same. 

SIGNED this 1!!.__ day of ~~, 2013. 

- JUDGE ~ 

PRESIDING 

2 

3484638 
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

HARRIS COUNTY, TEXAS

Chris Daniel, DISTRICT CLERK

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

Certified Document Number: 58115848 Total Pages: 2

this April 20, 2015
Exhibit E
4/11/2014 7:27:14 PM

Chris Daniel - District Clerk Harris County

Envelope No. 978599

By: GAYLE FULLER

CertifiedDocumentNumber:60397672-Page1of11

CAUSE NO. 2012-35162 

JOHN MOORE SERVICES, INC. and § IN THE DISTRICT COURT OF 

JOHN MOORE RENOVATION, LLC § 

Plaintiffs, § 

v. § 

§ 

THE BETTER BUSINESS BUREAU OF § 

HARRIS COUNTY, TEXAS 

METROPOLITAN HOUSTON, INC. § 

Defendant. § 269TH JUDICIAL DISTRICT COURT 

DEFENDANT THE BETTER BUSINESS BUREAU OF 

METROPOLITAN HOUSTON, INC.'S MOTION FOR AW ARD 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 

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: 

3691198 

(1) court costs, reasonable attorney's fees, and other expenses incurred in 

defending against the legal action as justice and equity may require; 

1 
CertifiedDocumentNumber:60397672-Page2of11

(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 

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 
CertifiedDocumentNumber:60397672-Page3of11

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 

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 
CertifiedDocumentNumber:60397672-Page4of11

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. 

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 
CertifiedDocumentNumber:60397672-Page5of11

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 

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 
CertifiedDocumentNumber:60397672-Page6of11

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 

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 
CertifiedDocumentNumber:60397672-Page7of11

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 

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 
CertifiedDocumentNumber:60397672-Page8of11

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 

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 
CertifiedDocumentNumber:60397672-Page9of11

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: 

3691198 

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 

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 
CertifiedDocumentNumber:60397672-Page10of11

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. 

3691198 

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. 

10 
CertifiedDocumentNumber:60397672-Page11of11

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 

Tamara Madden 

Brian P. Johnson 

919 Milam Street, Suite 1700 

Houston, TX 77002 

(713) 222-2323 (telephone) 

(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 

3691198 

D 

IZI 

D 

D 

D 

11 

By facsimile transmission 

By electronic transmission 

By deposit in the United States Mail 

ByCMRRR 

By hand-delivery 

Isl Jeffrey R. Elkin 

Jeffrey R. Elkin 
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

HARRIS COUNTY, TEXAS

Chris Daniel, DISTRICT CLERK

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

Certified Document Number: 60397672 Total Pages: 11

this April 20, 2015
Exhibit F 
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

5/27/2014 2:42:57 PM

Chris Daniel - District Clerk Harris County

Envelope No. 1367403

By: PAM ROBICHEAUX
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 

M. Harris Stamey 

Porter Hedges, LLP 

1000 Main Street, 36th Floor 

Houston, Texas 77002 

jelkin@porterhedges.com 

mstamey@porterhedges.com 

313986.1-04162014 

Via E-Service and Facsimile 

Isl Lori Hood 

LORI HOOD 

2 
11014 15:03 FAX 7132222228 

TRANSMISSION OK 

JOHNSON & TRENT. LLP 

********************* 

*** TX REPORT *** 

********************* 

TX/RX NO 

RECIPIENT ADDRESS 

DESTINATION ID 

ST. TIME 

0755 

227*7132288217 

05/27 15: 02 

01 '03 TIME USE 

PAGES SENT 

RESULT 3 

OK 

~·Johnson Trent 

Number of Pages (including cover): 

Recipient 

Jeffrey R. Elkin 

919 Milam, Suite 1700 

Houston, TX 77001 

(713) 222-1323 Telephone 

(713) 222-2226 Facsimile 

FACSIMILE Th.ANSMITT AL 

3 

FaxNwnber 

(713) 226.6217 

Date: May 27, 2014 

Tekph)ne Number 

(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 

!41001 
4J'; Johns nTrent 

Number of Pages (including cover): 

Recipient 

Jeffrey R. Elkin 

919 Milam, Suite 1700 

Houston, TX 77002 

(713) 222-2323 Telephone 

(713) 222-2226 Facsimile 

FACSIMILE TRANSMITIAL 

3 

Fax Number 

(713) 226-6217 

Date: May 27, 2014 

T 1 h 1'.T •• __ , e ep one i ________ 

(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 

Date Filed 

Harris County - 269th Civil District Court 

05/27/2014 02:42:57 PM 

Case Number 

Case Description 

Assigned to Judge 

Attorney 

Finn Name 

Filed By 

Filer Type 

Fees 

201235162 

Lori Hood 

Johnson Trent West & Taylor LLP 

Alexandria Chaffin 

Attorney 

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 

Transaction Amount 

Transaction Response 

Transaction ID 

Order# 

Johnson Trent EFile 

$2.06 

2268941 

001367403-0 

No Fee Documents Not Answers 

Filing Type EFileAndServe 

Filing Code 

Filing Description 

Reference Number 

Comments 

Status 

No Fee Documents Not Answers 

Second Amended Notice of Hearing 

323.1 

Submitting 

https://efile.txcourts.gov/EnlA'llopeDetails.aspX?enl.€1opeguid=a5d1e842-82dd-4820-8c20-e6fb71c524a5 1/2 
5/27/2014 

Fees 

$0.00 

$0.00 

En.elope Details 

Court Fee 

Service Fee 

Documents 

Lead Document 2nd Amended Notice ofHearing.pdf [Original] 

eService Details 

N ame/Ernail Firm 

M. Harris Stamey Porter Hedges, 

hstamey@porterhedges.com LLP 

Jeffrey R Elkin Porter Hedges 

jelkin@porterhedges.com LLP 

Jeffrey Elkins 

jelkin@porterhedges.com 

Johnson, Trent, 

Tamara M. Madden W & T est ayor, 1 

trnadden@JohnsonTrent.com L.L.P. 

Lori Hood 

fuood@johnsontrent.com 

M. Harris Stamey 

mstamey@porterhedges.com 

Service Type 

EServe 

EServe 

EServe 

EServe 

EServe 

EServe 

https://efi le.txcourts .g ov/EnwlopeDetai ls.aspX?enwlopeg ui d=a5d1 e842-82dd-4820-8c20-e6fb71 c524a5 

Status Served Date!fime Opened 

Not Sent No Not Opened 

Not Sent No Not Opened 

Not Sent No Not Opened 

Not Sent No Not Opened 

Not Sent No Not Opened 

Not Sent No Not Opened 

212 
Exhibit G
JUN-04-2014 16:15 From:7132281331 

JOHN MOORE SERVICES, INC. et al., 

Plainliffe, 

vs. 

THE BETIER BUSINESS BUR.EA{) OF 

METROPOLITAN HOUSTON, ThTC., 

Defendant. 

Porter Hedges LLP 

NO. 2012 . .JS 162 

HARRIS COllNTY, TEXAS 

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 ~ 

RECOllC&R'& PillilMORAHi::iiir.i 

I m~ IMtrum•ni is of poor q.111lity 

:)1 lnl: lime of lma11iflll 

.Judge. 2691

" Judicial Djstrict Court 
Exhibit H
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) 

whether they are reasonable and necessary and (2) whether they are equitable and just.1

 The first 

consideration is a question for the factfinder, which in this case is a jury. The second is a 

question for the judge sitting in equity. 

 

1

 While section 27.009 says “reasonable attorney’s fees,” necessity is inseparable under Texas jurisprudence 

from reasonableness. See infra, at p.6. In other words, unnecessary fees would be unreasonable. Therefore, this 

motion includes the concept of necessity when discussing the fact issues that must be decided. 

6/13/2014 9:10:56 AM

Chris Daniel - District Clerk Harris County

Envelope No. 1530705

By: PAM ROBICHEAUX

Certified Document 1umber: 61188586  Page 1 of 21
2

The primary issue before the trier of fact will be whether the amount sought by Porter 

Hedges in its Motion is reasonable and necessary. TEX. CIV. PRAC. & REM. CODE § 27.009(a).

As the Houston BBB seeks nearly $400,000.00 in fees and expenses, close examination and 

careful consideration of its Motion and evidence is indeed warranted. It is against this backdrop 

that the trier of fact is asked to review the fees and expenses at issue. Even if the Houston BBB 

has presented some evidence that the fees are reasonable and necessary, it has not presented 

conclusive evidence. Therefore, a fact finding will be required, and John Moore has requested a 

jury and paid the jury fee in this case.

The primary issue before the judge will be whether the amount sought by Porter Hedges 

is just and equitable and whether John Moore must bear sanctions. TEX. CIV. PRAC. & REM.

CODE § 27.009(a), (b). Because the Houston BBB has not achieved a dismissal of all claims that 

John Moore has brought, it is not at all clear that it would be just or equitable to award attorneys’ 

fees or sanctions based on the Houston BBB’s partial victory. Furthermore, the Houston BBB’s 

own arguments emphasize the uncertainty that the parties confronted with this newly enacted 

statute. There was a great amount of uncertainty in 2012 whether Chapter 27 should be 

interpreted to apply to the claims made in this lawsuit, or what standard of proof John Moore 

would be required to establish to survive a motion to dismiss. Under these circumstances, it is 

neither equitable nor just to award almost half a million dollars in fees and sanctions against John 

Moore.

BACKGROUND

John Moore filed suit against the Houston BBB for reputational torts, fraud, and 

interference with prospective and existing contracts. The BBB argued that the claims against it 

arose out of its right to participate in government by freely speaking, associating, and petitioning 

Certified Document 1umber: 61188586  Page 2 of 21
3

and filed a motion to dismiss under section 27.005 of the Texas Civil Practice and Remedies 

Code (the Anti-SLAPP statute). 

During the pendency of the Anti-SLAPP motion, this Court allowed only limited 

discovery, i.e., the production of BBB consumer complaints. 

In response to the Anti-SLAPP motion, John Moore argued that the statute did not apply 

under the circumstances, and presented evidence in support of each essential element of its 

claims. The Court signed an order denying the BBB’s motion to dismiss.

In response to this Court’s denial of its motion, the Houston BBB elected to file an 

interlocutory appeal. As the Houston BBB notes, the preparation of this case for trial continued. 

Both parties engaged in discovery. In the end, the First Court of Appeals reversed this Court’s 

order, and John Moore’s petition for review was denied. The case was remanded to the trial 

court for further proceedings.

In light of the court of appeals’ decision, John Moore amended it petition to assert causes 

of action (1) that were supported and suggested by the evidence discovered after the motion to 

dismiss was denied and (2) that would not implicate the Houston BBB’s speech rights. Pursuant 

to the Houston BBB’s motion, that amended petition was struck, forcing John Moore to file the 

causes of action in a separate suit and giving the Houston BBB another bite at the Chapter 27 

apple.

Defendant now seeks recovery of attorney’s fees, expenses and court costs under section 

27.009(a) of the Anti-SLAPP statute. The statute provides that costs and “reasonable” attorney’s 

fees shall be awarded to the moving party as “justice and equity may require.” Id. As noted 

below, the determination as to the reasonableness of fees is a fact issue for the trier of fact. John 

Moore reiterates its demand from its original petition that a jury consisting of twelve good and 

Certified Document 1umber: 61188586  Page 3 of 21
4

lawful jurors be duly qualified, tested, selected, and impaneled and the case proceed to trial on the 

reasonableness and necessity of the requested attorney’s fees, expenses and court costs and any and 

all other fact issues.

John Moore also asks that the court consolidate the cases.

ARGUMENT

The Houston BBB does not state the basis for its motion. In the latest conference with 

the Court, the Houston BBB has characterized it as a motion for judgment in preparation for a 

bench trial. At other times, the Houston BBB’s attorneys have characterized it as a motion for 

summary judgment. In either event, the motion cannot be granted.

First, a bench trial is not appropriate. John Moore filed a jury demand, paid the fee, and 

this case is pending on the jury docket. Reasonableness of attorneys’ fees is a question for the 

fact finder, which, in this case, is a jury. Second, the Houston BBB has not presented conclusive 

evidence that the fees are reasonable and necessary. Indeed, it is not certain that the Houston 

BBB has presented competent evidence at all. Finally, an award of fees would be neither just 

nor equitable at this time, and the question of sanctions is premature and overreaching as to 

amount.

I. REASONABLENESS OF ATTORNEYS’ FEES IS AN ISSUE FOR THE JURY.

John Moore is entitled to a jury trial on the question of reasonableness of attorneys’ fees. 

Chapter 27 requires a determination of “reasonable attorney’s fees.” TEX. CIV. PRAC. & REM.

CODE § 27.009(a)(1). Because this is a fact issue and because John Moore has requested a jury 

trial in this case, this issue cannot be tried to the bench. The BBB even admits in its Motion that 

whether fees are reasonable and necessary is a question of fact, citing Bocquet v. Herring, 972 

S.W.2d 19, 20-21. (Tex. 1998). See Motion, p. 4.

Certified Document 1umber: 61188586  Page 4 of 21
5

Fee shifting provisions in which the reasonableness of a fee must be determined present a 

jury issue. The Texas Supreme Court has consistently interpreted similar fee shifting provisions 

to raise fact questions on the issues of reasonableness and necessity that entitle the party against 

whom the fees are to be assessed to demand a jury trial. See Transcontinental Ins. Co. v. Crump, 

330 S.W.3d 211, 213 (Tex. 2011) (and cases cited therein); see also Commerce & Indus. Ins. Co. 

v. Ferguson-Stewart, 339 S.W.3d 744, 748-49 (Tex. App.—Houston [1st Dist.] 2011, pet. 

denied) (reversing and remanding for a jury trial the bench trial judgment awarding attorneys’ 

fees). Chapter 27 is indistinguishable from other similar fee shifting provisions as discussed 

below.

Like the Citizens’ Participation Act, the Texas Labor Code mandates that “the court” 

award attorneys’ fees to a workers’ compensation claimant under a fee shifting provision. 

Crump, 330 S.W.3d at 213. The injured worker submitted his attorneys’ fees to the bench and 

the trial court awarded fees, but the insurer argued that it was entitled to a jury determination 

under the statute. Id. at 214. The Texas Labor Code provides:

An insurance carrier . . . is liable for reasonable and necessary attorney’s fees . . . 

if the claimant prevails on an issue on which judicial review is sought . . . . [T]he 

court shall apportion and award fees to the claimant’s attorney only for the issues 

on which the claimant prevails. In making that apportionment, the court shall 

consider the factors prescribed . . . .

TEX. LAB. CODE § 408.221 (emphasis added). The Texas Supreme Court noted that the statute 

mentioned “the court” but was “silent on the critical judge-or-jury question.” Crump, 330 

S.W.3d at 229. The Court considered this silence to create an ambiguity and relied on the 

common law interpretations of other fee-shifting provisions to resolve the ambiguity. Id.

The Court noted that fee shifting provisions generally raise a fact issue. Id. at 230 (“In 

general, the reasonableness of statutory attorney’s fees is a jury question.”). For example, the 

Public Information Act also states that “the court” is to assess the amount of reasonable and 

Certified Document 1umber: 61188586  Page 5 of 21
6

necessary fees. Id. at 230 (citing TEX. GOVT. CODE § 552.323). The Texas Supreme Court 

determined this to be a jury question. See City of Garland v. Dallas Morning News, 22 S.W.3d 

351, 367 (Tex. 2000). 

Likewise, the Declaratory Judgment Act permits “the court” to award reasonable and 

necessary fees. TEX. CIV. PRAC. & REM. CODE § 37.009. Because reasonableness and necessity 

are both fact issues, they are questions that are committed to a jury. Crump, 330 S.W.3d at 231 

(citing Bocquet, 972 S.W.2d at 21). Applying this general rule to the statute in Crump, the Court 

decided that the Texas Workers’ Compensation Act’s fee shifting provision preserved the right 

to “submit the issue of the reasonableness and necessity of a claimant’s attorney’s fees, where 

disputed, to a jury.” Id. at 231.

Thus, in three other fee shifting provisions mandating or authorizing “the court” to award 

fees, the Texas Supreme Court has determined that “the court” means the jury when it comes to 

the questions of reasonableness or necessity.2 Just like those provisions, section 27.009 of the 

Civil Practice and Remedies Code requires “the court” to award “reasonable attorney’s fees.” 

TEX. CIV. PRAC. & REM. CODE § 27.009(a)(1). Section 27.009 should be interpreted consistently 

with the fee shifting provisions discussed above. Therefore, “the court” must mean “the jury” on 

the issue of reasonableness.

As set forth in the Hood Affidavit, there is at least a fact issue as to whether the Houston 

BBB’s fees are reasonable. Ex. A (Affidavit of Lori Hood). John Moore has requested a jury 

and paid the jury fee. This case is on the jury docket. John Moore is entitled to have a jury find 

these facts.

 

2 On the other hand, “the court” refers to the judge when it comes to determining whether justice or equity 

would permit the award of fees. Crump, 330 S.W.3d at 231.

Certified Document 1umber: 61188586  Page 6 of 21
7

II. THE HOUSTON BBB HAS NOT PRESENTED CONCLUSIVE EVIDENCE THAT THE 

ATTORNEYS’ FEES ARE REASONABLE AND NECESSARY.

The Houston BBB’s evidence of attorneys’ fees is not conclusive. Indeed, it may not 

even be legally sufficient.

A. The Houston BBB Must Provide Sufficient Evidence to Allow the Fact 

Finder to Make a Determination.

The Anti-SLAPP statute mandates the award of “reasonable” attorneys’ fees in an 

amount that satisfies “justice and equity.” TEX. CIV. PRAC. & REM. CODE § 27.009(a)(1). Texas 

jurisprudence has always considered reasonableness and necessity together. See, e.g., El Apple I, 

Ltd. v. Oivas, 370 S.W.3d 757, 762-63 (Tex. 2012) (considering necessity of the fees as a 

component of reasonableness). Thus, the Houston BBB is tasked with providing evidence that 

its attorneys’ fees are both reasonable and necessary.

For the fact finder to make a meaningful determination and for the Court to conduct a 

meaningful review, the Houston “must provide sufficient details of the work performed.” Id. at 

764. This includes, “at a minimum, documentation of the services performed, who performed 

them and at what hourly rate, when they were performed, and how much time the work 

required.” Id. The El Apple requirements have been elaborated upon to require “evidence of the 

time spent on specific tasks.” Long v. Griffin, __ S.W.3d __, 2014 WL 1643271, at *3 (Tex. 

April 25, 2014).

The BBB bears the burden of proof in support of its Motion, and cannot simply provide 

general statements of the time spent multiplied by the hourly rate to the trier of fact. Id. The 

Texas Supreme Court has provided further guidance in the form of factors that should be 

considered when determining whether the requested compensation is reasonable. These 

guidelines are known as the “Anderson Factors” and are set forth below:

Certified Document 1umber: 61188586  Page 7 of 21
8

a. the time and labor required, the novelty and difficulty of the questions involved, 

and the skill required to perform the legal service properly;

b. the likelihood that the acceptance of the particular employment will preclude 

other employment by the lawyer;

c. the fee customarily charged in the locality for similar legal services;

d. the amount involved and the results obtained;

e. the time limitations imposed by the client or by the circumstances;

f. the nature and length of the professional relationship with the client;

g. the experience, reputation, and ability of the lawyer or lawyers performing the 

services; and

h. whether the fee is fixed or contingent on results obtained or uncertainty of 

collection before the legal services have been rendered.

Arthur Anderson & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997).

John Moore objects to the BBB’s purported evidence in support of its Motion, see infra, 

pp. 15-17, and asserts that the jury is entitled to assess the credibility of the BBB’s witnesses and 

determine the weight of the evidence and decide whether the BBB has met its burden of proof to 

recover fees and expenses in this matter.

B. The Houston BBB Does Not Even Purport to Present Conclusive Evidence 

That Its Fees Are Reasonable and Necessary.

Even if the Houston BBB’s evidence passes the legal sufficiency test, it is certainly not 

conclusive. Indeed, the fees may well be unreasonable as a matter of law.

1. The Houston BBB’s proposed fee award is “patently unreasonable”

according to Justice Hecht.

In a case involving an eight-day trial, three depositions, and approximately 2,500 pages 

of document production, Justice Hecht opined that 890 hours of attorney time at a rate of over 

$500 per hour was “patently unreasonable.” El Apple I, Ltd., 370 S.W.3d at 765 (Hecht, J. 

concurring, joined by Wainwright, J. and Willet, J.). Justice Hecht also found it significant that 

Certified Document 1umber: 61188586  Page 8 of 21
9

the attorneys for the opposing side spent only 266.7 hours at less than half the billing rate. Id. at 

766. As Justice Hecht said, “Statutory fee-shifting is not a bonanza. It should take into account 

what the market should.” Id. 

In this case, the Houston BBB prepared and filed eight contested pleadings and motions 

in this Court including its 3-page answer and 10-page motion to dismiss. Ex. A ¶ 13. The 

Houston BBB also produced approximately 12,000 pages of documents and participated in 

several hearings. Id. In the appellate courts, the Houston BBB prepared and filed a brief of 

appellant, a reply brief of appellant, and a response to petition for review. Id. There was no trial. 

Discovery was limited, and no depositions were taken. Id. The Houston BBB seeks a bonanza 

for its attorneys that is not consistent with the market.

Furthermore, the fee invoices covering the periods from June 2012 through May 2013

(from the invoice dated July 23, 2012 through the invoice dated June 16, 2013) do not satisfy the 

most basic requirement by showing the time billed and the rate for that time. 

That proof should include the basic facts underlying the lodestar, which are: (1) 

the nature of the work, (2) who performed the service and their rate, (3)

approximately when he services were performed, and (4) the number of hours 

worked.

El Apple, 370 S.W.3d at 763. These invoices do not show the rate for the persons performing the 

work at the time they performed the work. Although the Elkin Affidavit provides billing rates 

for certain attorneys and legal staff, it does not provide the rates for all of the persons identified 

in the invoices, and it does not provide the rates that were in effect at the time of the invoice. 

Therefore, these invoices may not be considered.

Finally, the Houston BBB’s evidence of reasonableness does not satisfy the Long v. 

Griffin standard. Long, at *2. The billing invoices provided include 610 entries. Of those, only 

373 provide the time spent on a specific task as required by the Texas Supreme Court. Id.; See

Certified Document 1umber: 61188586  Page 9 of 21
10

Ex. B-1 (Affidavit of Amelia Irving). The other 267 combine multiple tasks and actions into a 

single time entry (i.e., block billing), making it impossible to determine whether the time was 

well-spent or wasted. Id. This form of block billing does not even permit the fact finder to break 

the hours spent down into general categories such as discovery, research, pleadings, witnesses, 

etc., and even if this kind of general breakdown were possible, it is inadequate under Supreme 

Court precedent. See El Apple, 370 S.W.3d at 763 (holding that such categorization “provides 

none of the specificity needed for the trial court to make a meaningful lodestar determination.”). 

Without even the ability to consider the time spent on general activities, much less 

specific tasks, the invoices are insufficient to support a finding that the fees included therein are 

reasonable and necessary.

2. The Houston BBB has not produced conclusive evidence that the fees 

represented in the invoices have been incurred.

Section 27.009 only allows recovery of fees that have been “incurred.” TEX. CIV. PRAC.

& REM. CODE § 27.009(a)(1). The Elkin Affidavit does not establish which, if any, of the fees 

invoiced were actually incurred by the Houston BBB in the sense that they were paid or that

there is an obligation to pay them in full. The Elkin Affidavit states that “Porter Hedges has 

received payment for all work,” but it does not specify what that payment amount was. 

Therefore, the Elkin Affidavit does not conclusively establish that the fees requested were 

incurred.

3. The Houston BBB has not produced conclusive evidence that the 

proposed fee award is reasonable and necessary.

As discussed above, the Houston BBB’s invoices and the Elkin Affidavit do not satisfy 

the Texas Supreme Court’s specificity requirements and are, therefore, not even some evidence 

of the reasonableness of fees, much less conclusive evidence. Indeed, much of the Elkin 

Affidavit is conclusory, see infra, pp. 15-17, because it is largely an expression of opinion 

Certified Document 1umber: 61188586  Page 10 of 21
11

without the underlying facts necessary to support the conclusion. Hou-Tex., Inc. v. Landmark 

Graphics, 26 S.W.3d 103, 112 (Tex. App.—Houston [14th Dist.] 2000, no pet.). Even if the 

evidence were competent and were considered, it would raise a fact issue at best. 

The reasonableness of the time spent in representing the Houston BBB is discussed only 

in general terms in paragraphs 7 through 9. Paragraph 7 lists the kinds of legal tasks that one 

would expect in any lawsuit, but only in vague terms. Paragraph 8 includes a chart of the monthby-month billing. Paragraph 9 is intended to prove up the invoices. In paragraph 10, the time is 

divided into four overlapping general categories. Paragraph 11 restates the total fees, costs, and 

expenses allegedly incurred. Paragraph 12 provides a conclusory estimate of future legal fees. 

None of these paragraphs discuss the reasonableness of the fees, much less relate the entries on 

the invoices to any particular tasks and explain why they are reasonable. In short, they do not 

provide any evidence that would allow a finder of fact to make a determination as to 

reasonableness.

Following is a review of the Anderson factors and the Houston BBB’s treatment of each 

in the Elkin Affidavit.

a. The time and labor required, the novelty and difficulty of the 

questions involved, and the skill required to perform the legal 

service properly.

The work on this case was not complex or difficult for the Houston BBB. Ex. A ¶¶ 16-

17. Chapter 27 was designed to allow a defendant to easily and efficiently impose an immediate 

burden on the plaintiff to present “clear and specific prima facie evidence” of the elements of its 

claim. Id. The Houston BBB accomplished this with a short, ten page motion to dismiss.

While Chapter 27 was a new statute in Texas, it was based on a model that has been 

adopted in many states, and there had already been a number of other cases in Texas in which it 

had been used by other Better Business Bureaus (notably Dallas) as a defensive tactic. Id. ¶ 17. 

Certified Document 1umber: 61188586  Page 11 of 21
12

Therefore, the Houston BBB did not have to reinvent the wheel. Furthermore, the legal briefing 

on the interpretation of the statute in the trial court and the court of appeals involved a

straightforward application of well-known and long-established precedent. Id. ¶ 16. This textbased statutory construction was not difficult and involved legal authority that is so well known 

that little research should have been necessary to supply the principles. Id.

b. The likelihood that the acceptance of the particular 

employment will preclude other employment by the lawyer.

Porter Hedges acknowledges in the Elkin Affidavit, that taking on this engagement did 

not prevent the firm from accepting any other clients.

c. The fee customarily charged in the locality for similar legal 

services.

For a company the size of the Houston BBB, the rates indicated in the Elkin Affidavit 

and, presumably, charged in the attached invoices were excessive. Ex. A ¶ 15. In the stratified 

Houston legal market, small businesses like the Houston BBB (an in particular, non-profits)

simply do not engage firms that charge fees in the upper range of the market. Id. If they do 

engage such firms, they do so at substantially discounted rates or as a pro bono matter. Id. For 

example, the rates charged by John Moore’s attorneys were as much as 40% lower, resulting in 

total fees incurred by John Moore of only $165,000 for precisely the same litigation. Id.

d. The amount involved and the results obtained.

Except for a handful of days in the fall of 2013, before its First Amended Original 

Petition was struck, John Moore did not seek a damage multiplier. Ex. A ¶ 19. Therefore, with 

the exception of the fees incurred to contest this filing, Porter Hedges’ rationale that it spent 

extra time on the case for the other 21 months of litigation due to this pleading is disingenuous. 

Id.

Certified Document 1umber: 61188586  Page 12 of 21
13

Furthermore, Porter Hedges has obtained only a partial dismissal of John Moore’s claims 

to date. This result, while beneficial to the Houston BBB, does not justify the suggestion that the 

Houston BBB’s position has been fully vindicated or that John Moore’s claims have no merit. 

An award of attorneys’ fees is premature on this factor.

e. The time limitations imposed by the client or by the 

circumstances.

There were no onerous time limits imposed in this litigation. Ex. A ¶ 20. Chapter 27 

allows 60 days to prepare and file a motion to dismiss. TEX. CIV. PRAC. & REM. CODE

§ 27.003(b). The Houston BBB had ample time to prepare the ten-page motion. Ex. A ¶ 20.

In the interlocutory appeal, the Houston BBB requested and received two extensions of 

time to file its principal brief, which John Moore did not oppose. Id. In the end, the Houston 

BBB had 108 days to prepare and file its brief of appellant. Id. John Moore filed its brief in 

response 35 days later. Id. After yet another extension of time, the Houston BBB had 27 days to 

prepare and file a brief in reply. Id. There was no time pressure in the appal.

f. The nature and length of the professional relationship with the 

client.

Porter Hedges states that it has an almost 20 year relationship with the Houston BBB. 

The Houston BBB is a not-for-profit enterprise that markets itself as a performer of good works 

for the consumers of Houston. Ex. A ¶ 15. These types of clients are often represented pro bono 

or at substantially discounted rates and/or capped legal fees. Id. The Houston BBB’s evidence is 

silent on its billing arrangement with the Porter Hedges. But the length of this relationship and 

the nature of the Houston BBB’s activities suggest that, in the market, it would be able to engage

counsel for substantially less than the amount that it now suggests that it incurred. Id. ¶ 21.

Certified Document 1umber: 61188586  Page 13 of 21
14

g. The experience, reputation, and ability of the lawyer or 

lawyers performing the services.

Paragraph 14 set out the experience of some of the timekeepers who appear on the 

invoices. But there are many entries that include timekeepers whose experience is unstated. 

There is no evidence of reputation or of ability for any timekeeper.

Assuming that the lawyers involved were all “able” to a degree that is proportionate to 

their experience, it appears that the time spent on this matter is not reflective of that ability. Ex. 

A ¶ 22. For example, the appeal primarily involved basic, well-understood statutory construction 

principles. Id ¶ 16. No new legal ground was explored in the textual analysis. Id. It was simply 

a plain meaning-based legal argument. Id. The number of Texas Supreme Court cases setting 

out the plain language standard of interpretation are so numerous, it would be difficult not to 

know at least one off the top of the head. It is clear to John Moore that this legal argument 

should not have required so much time to prepare both in terms of research and of drafting such 

that it required two additional months of work. Id. ¶¶ 20, 22.

h. Whether the fee is fixed or contingent on results obtained or 

uncertainty of collection before the legal services have been 

rendered.

The Houston BBB states that its fee agreement was fixed, but the agreement is not 

provided. Therefore, it is not certain what fees were incurred by the Houston BBB. The Elkin 

Affidavit states that “payment” has been made, but does not specify the amount of that payment. 

Furthermore (and this may be an error, it is so unusual), the Elkin Affidavit states that the 

fees are billed to the nearest six-tenths of an hour. If correct, this policy would be a substantial 

departure from customary practice in the Houston legal market, and it would result in an 

inordinate inflation of the Houston BBB’s legal invoices that would not be reasonable. Ex. A 

¶ 23.

Certified Document 1umber: 61188586  Page 14 of 21
15

III. AN AWARD OF FEES AT THIS JUNCTURE WOULD BE NEITHER JUST NOR EQUITABLE.

For two reasons, the award of fees suggested by the Houston BBB would be neither 

equitable nor just. First, the application of Chapter 27 to John Moore’s claims was not certain

and there is no serious dispute that John Moore has been harmed by the Houston BBB’s actions. 

Ex. A ¶¶ 7-10.

Second, John Moore still has viable claims against the Houston BBB that arise out of this 

transaction, which, but for the Houston BBB’s insistence, would be joined to this same lawsuit. 

Under these circumstances, an award of over $400,000 in fees would serve neither justice nor 

equity and would be premature. 

Indeed, as the Houston BBB has repeatedly stated, the claims in the second suit (Cause 

No. 2013-76215) arise out of the same transaction. The Houston BBB’s motion to strike John 

Moore’s First Amended Original Petition in the fall of 2013 caused a de facto severance of John 

Moore’s claims into separate cases, and John Moore objects that such a splitting of its claims is 

improper and would result in prejudice to John Moore in the form of improper attempts by the 

Houston BBB to assert res judicata.

John Moore does not believe that res judicata would apply under the circumstances. See 

Van Dyke v. Boswell, O’Toole, Davis & Pickering, 697 S.W.2d 381, 384 (Tex. 1985) (“res 

judicata effects of an action cannot preclude litigation of claims that a trial court explicitly 

separates or severs from that action”); Dolenz v. Continental Nat’l Bank, 620 S.W.2d 572, 575

(Tex. 1981) (res judicata does not apply when conduct by a party estops it from asserting the 

prior active jurisdiction); see also Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex. 

1988). But even though res judicata does not apply, the splitting of John Moore’s cause of 

action is not consistent with Texas policy and should be corrected now that all statutory stays

preventing a consolidation have expired. See Pierce v. Reynolds, 329 S.W.2d 76, 78 (Tex. 1959) 

Certified Document 1umber: 61188586  Page 15 of 21
16

(claim splitting is improper); Ryland Group, Inc. v. White, 723 S.W.2d 160, 162 (Tex. App.—

Houston [1st Dist.] 1986, no writ) (compulsory claims that arise out of the same transaction

cannot be split into a separate cause). 

Under the circumstances, John Moore moves for consolidation of Cause No. 2013-76215 

with this case. TEX. R. CIV. P. 174(a); cf. Wyatt., 760 S.W.2d at 247 (when the claims in a 

second lawsuit should have been brought in a previously-filed case, the second suit should be 

abated so the pleadings in the first suit can be amended to join the new claims). A consolidation 

will allow the entire controversy to be decided at one time by a single jury.

IV. JOHN MOORE OBJECTS TO THE ELKIN AFFIDAVIT AS LEGALLY INSUFFICIENT TO 

SUPPORT AN AWARD OF ATTORNEYS’ FEES.

The Elkin Affidavit contains general and highly conclusory statements which are legally 

insufficient to support an award of attorneys’ fees. A conclusory statement is “one that does not 

provide the underlying facts to support the conclusion.” Hou–Tex, Inc., 26 S.W.3d at 112 

(quoting Rizkallah v. Conner, 952 S.W.2d 580, 587 (Tex. App.—Houston [1st Dist.] 1997, no 

writ)). A general statement by an attorney that an amount sought is reasonable is not conclusive 

proof on the question of reasonableness. Nguyen Ngoc Giao v. Smith & Lamm, P.C., 714 S.W.2d 

144, 149 (Tex. App. —Houston [1st Dist.] 1986, no writ); see also, Burrow v. Acre, 997 S.W.2d 

229, 236 (Tex. 1999) (expert must support opinion by reasoned basis). Furthermore, an 

agreement to pay an attorney a certain sum per hour is not proof of its reasonableness. Leal v. 

Leal, 628 S.W.2d 168, 171 (Tex. App.—San Antonio 1982, no writ). 

John Moore’s objections include but are not limited to Elkin Affidavit paragraphs 6, 20 

and 25, which state that Porter Hedges billing rates are customary, reasonable and comparable to 

similar law firms in Harris County, Texas. These statements are conclusory and provide no 

underlying facts to support the conclusion. 

Certified Document 1umber: 61188586  Page 16 of 21
17

John Moore further objects to Elkin Affidavit paragraph 8, which concludes that Moore 

has asserted numerous, meritless claims. This is a factually unsupported opinion and does not 

provide a valid basis for the award of attorneys’ fees. 

The Elkin Affidavit is also objectionable as to paragraph 9 and the referenced invoices 

attached as Exhibit 2. Specifically, the invoices contain multiple redactions to allegedly prevent 

disclosure of attorney-client privileged material. The sheer number of redactions suggests that 

the BBB, by and through its counsel, is not protecting attorney-client privilege but rather hiding 

duplicative billing entries and unnecessary work product. John Moore objects that Elkin

Affidavit’s reliance on the invoices contained in Exhibit 2 is based on insufficient, unreliable and 

conclusory evidence.

John Moore further objects to Elkin Affidavit paragraph 12, which contains an 

unsupported and conclusory opinion that the BBB will incur $130,000.000 in legal fees to defend 

and argue its Motion and any related appeals.

John Moore objects to Elkin Affidavit conclusory paragraphs 17, 18 and 22 which allude 

to the “complexity” of the Lawsuit without providing factual evidence of how Chapter 27 is a 

complex statute and delineating with specificity what legal analysis and research were required 

to prosecute the BBB’s Motion. 

John Moore further objects to Elkin Affidavit paragraph 21 which contains the 

conclusory statement that the hours expended by Porter Hedges, as reflected in the invoices 

attached as Exhibit 2, were reasonable. John Moore re-asserts its objections to reliance on the 

heavily redacted invoices as constituting insufficient and unreliable evidence.

Certified Document 1umber: 61188586  Page 17 of 21
18

John Moore objects to Elkin Affidavit paragraph 24 which concludes, without any 

supporting factual evidence, that Porter Hedges professionals were precluded from other 

employment due to the acceptance of this case.

John Moore further objects to Elkin Affidavit paragraph 28, which references the 

experience, reputation and ability of Porter Hedges without providing any factual support. John 

Moore also objects to the conclusory statement that Porter Hedges’ billing rates were reasonable 

based on said experience.

John Moore objects to Elkin Affidavit paragraph 31, which states that Porter Hedges 

expenses are reasonable based on the length and complexity of this litigation. These statements 

are conclusory and provide no underlying facts to support the conclusion. 

Finally, John Moore objects to Elkin Affidavit paragraph 32 as irrelevant to the BBB’s 

Motion and unsupported by any evidence proffered in this matter.

In sum, the Elkin Affidavit contains conclusions unsupported by any reasoning 

connecting them to the facts as to the time and rates billed on specific tasks that would support a 

finding that the claimed attorneys’ fees are reasonable and necessary. Thus, the statements in the 

Elkin Affidavit regarding attorneys’ fees are conclusory and there is no evidence to support the 

reasonableness of these fees. Coastal Terminal Operators v. Essex Crane Rental Corp., 2004 

Tex. App. LEXIS 7257 at pp. 21-24 (Tex. App.—Houston. [14th Dist.] 2004, no pet) (citing 

Burrow, 997 S.W.2d at 235-37).

MOTION TO COMPEL RESPONSES TO MOORE’S DISCOVERY

John Moore objects to Defendant’s request for fees and expenses incurred prosecuting its 

Motion to Dismiss. Among other reasons, these fees and expenses should be denied by the trier 

of fact because Porter Hedges has provided no substantive discovery responses to John Moore

Certified Document 1umber: 61188586  Page 18 of 21
19

regarding these requests, despite the fact that John Moore specifically requested such 

information in a request for production to the Houston BBB. Ex. C. 

Defendant is in possession, custody or control of documents and information responsive 

to John Moore’s request for production, yet Porter Hedges has produced no information 

regarding fees and expenses it has incurred beyond the firm’s heavily redacted billing records. 

John Moore is entitled to discovery on these fees and expenses in order to test their 

reasonableness and necessity, and the Houston BBB should not be allowed to profit from its 

blatant disregard for its discovery obligations. John Moore thus seeks an Order overruling the 

Houston BBB’s objections and compelling production of the requested documents.

RESERVATION OF RIGHTS 

John Moore expressly reserves the right to amend, modify, or supplement its Response to 

Defendant’s Motion, and to assert additional grounds for objecting to the Motion, to the extent 

discovery and expert analysis reveal additional issues concerning the propriety of compensation 

sought in the Motion.

PRAYER

WHEREFORE, John Moore respectfully requests that this Court deny Defendant’s 

Motion for Award of Attorneys’ Fees, Court Costs, Expenses, and Sanctions and for Entry of 

Final Judgment and sustain John Moore’s objections to the evidence offered by Defendant 

contained herein. John Moore further requests that the Court grant its motion to consolidate and 

consolidate Cause No. 2013-76215 into this case and for the trier of fact to hear evidence to 

determine the facts raised by the parties. Finally, John Moore requests that the Court grant its 

motion to compel a response to its discovery requests. John Moore also requests that this Court 

grant such other and further relief as is equitable and just. 

Certified Document 1umber: 61188586  Page 19 of 21
20

Certified Document 1umber: 61188586  Page 20 of 21
21

Respectfully submitted,

JOHNSON, TRENT, WEST & TAYLOR, LLP

By: /s/ Lori Hood

Lori Hood

Texas Bar No. 09943430

Brian P. Johnson

Texas Bar No. 10685700

Tamara Madden

Texas Bar No. 00783720

919 Milam Street, Suite 1700

Houston, Texas 77002

(713) 222-2323

(713) 222-2226 (facsimile)

lhood@johnsontrent.com

bjohnson@johnsontrent.com

tmadden@johnsontrent.com

ATTORNEYS FOR PLAINTIFFS

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing instrument has been served 

upon all counsel of record pursuant to Rule 21 and Rule 21(a) of the TEXAS RULES OF CIVIL 

PROCEDURE on this 12th day of June 2014.

Jeffrey R. Elkin

M. Harris Stamey

PORTER HEDGES, LLP

1000 Main Street, 36th Floor

Houston, Texas 77002

jelkin@Porter Hedges.com

mstamey@Porter Hedges.com

Via E-Service 

/s/ Tamara Madden

TAMARA MADDEN

329881

Certified Document 1umber: 61188586  Page 21 of 21
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

HARRIS COUNTY, TEXAS

Chris Daniel, DISTRICT CLERK

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

Certified Document Number: 61188586 Total Pages: 21

this April 20, 2015
Exhibit I
CertifiedDocumentNumber:61265745-Page1of1

CAUSENO. ~-35'f~1_ 

~tt ~re_ ~N1'ce~1 k. ef. aJ. , § IN THE DISTRICT COURT OF 

Plaintiff(s), 

Defendant(s) 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

ORDER 

HARRIS COUNTY, TEXAS 

269th JUDICIAL DISTRIC1; 

The following matters are pending before the Court: 

FILED 

Chris Daniel 

District Clerk 

JUN 1 9 2014 c2 r?j ~ Time: - tf t;nty, Texa~ _ 

By Deputy 

, 20I_:l. 

Hon Dan Hinde 

Judge, 2691

h District Court 
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

HARRIS COUNTY, TEXAS

Chris Daniel, DISTRICT CLERK

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

Certified Document Number: 61265745 Total Pages: 1

this April 20, 2015
Exhibit J
8/4/2014 4:42:37 PM 

Chris Daniel - District Clerk Harris County 

Envelope No. 2045292 

By: GAYLE FULLER 

CAUSE NO. 2012-35162 

JOHN MOORE SERVICES, INC. and § IN THE DISTRICT COURT OF 

JOHN MOORE RENOVATION, LLC § 

Plaintiffs, § 

~ § HARRIS COUNTY, TEXAS 

§ 

THE BETTER BUSINESS BUREAU OF § 

METROPOLITAN HOUSTON, INC. § 

Defendant. § 269TH JUDICIAL DISTRICT COURT 

DEFENDANT'S MOTION FOR ENTRY OF FINAL JUDGMENT AND 

FOR AW ARD OF COURT COSTS, EXPENSES, AND SANCTIONS 

Defendant The Better Business Bureau of Metropolitan Houston, Inc. ("Defendant") files 

this Motion for Entry of Final Judgment and for Award of Court Costs, Expenses, and Sanctions 

against Plaintiffs John Moore Services, Inc. and John Moore Renovation, LLC (collectively 

"Plaintiffs" or "John Moore") and in support thereof would show the Court as follows: 

I. REQUEST FOR JUDGMENT ORDERING DISMISSAL OF PLAINTIFFS' CLAIMS 

Pursuant to the judgment rendered by the First Court of Appeals on July 16, 2013, and 

the mandate issued by that court on April 4, 2014, Defendant respectfully requests that the Court 

enter a final judgment dismissing all of Plaintiffs' claims against Defendant with prejudice and 

ordering that Plaintiffs take nothing on all of their claims. See The Better Bus. Bureau of Metro. 

Houston, Inc. v. John Moore Servs., Inc., No. 01-12-00990-CV, 2013 WL 3716693, *12 (Tex. 

App.-Houston [1st Dist.] 2013, pet. denied). 

II. REQUEST FOR JUDGMENT ON JURY VERDICT FOR ATTORNEYS' FEES 

Pursuant to Section 27.009(a)(l) of the Texas Civil Practice and Remedies Code 

("Chapter 27"), the Court is required to award to the Defendant "the reasonable attorney's fees 

... incurred in defending against this legal action .... " TEX. CIV. PRAC. & REM. CODE ANN. § 

27.009(a)(l) (West 2014). On July 22, 2014, a jury rendered a verdict for $250,001.44 as the 

1 

3818625 

i: 
amount of reasonable attorney's fees incurred by the Defendant in defending against this legal 

action. See Exhibit A. Accordingly, Defendant respectfully requests that the Court enter a final 

judgment requiring Plaintiffs to pay to Defendant its attorney's fees in at least the amount of 

$250,001.44.1 

III. REQUEST FOR JUDGMENT AWARDING COURT COSTS, EXPENSES, AND SANCTIONS 

Chapter 27 also requires the Court to award to the Defendant "court costs ... and other 

expenses incurred in defending against the legal action .... " TEX. CIV. PRAC. & REM. CODE ANN. 

§ 27.009(a)(l) (West 2014). In addition, Chapter 27 calls for the Court to award "sanctions 

against the party who brought the legal action as the court determines sufficient to deter the party 

... from bringing similar actions described in this chapter."2 

A. Trial Court Costs 

Defendant requests that the Court enter a final judgment taxing all costs of court 

expended or incurred in this lawsuit to Plaintiffs. 

B. "Other Expenses" 

Defendant requests that the Court enter a final judgment awarding Defendant $6,23 7. 77 

for expenses incurred in defending against Plaintiffs' legal action, as established by the 

testimony and exhibits (Defendant's Trial Exhibits 1, 3-4, 6) entered into evidence during the 

July 21-22 jury trial. 

Defendant agrees only to the form of judgment it is submitting to the Court and is not, in seeking entry of a 

final judgment, concurring with the jury's verdict or the content and result of the final judgment. First Nat'/ Bank v. 

Fojtik, 775 S.W.2d 632, 633 (Tex. 1989) (per curiam). 

2 Section 27 .009(a) states that "[i]f the court orders dismissal of a legal action under this chapter, the court 

shall award to the moving party: (1) court costs, reasonable attorney's fees, and other expenses incurred in 

defending against the legal action as justice and equity may require; and (2) sanctions against the party who brought 

the legal action as the court determines sufficient to deter the party who brought the legal action from bringing 

similar actions described in this chapter." Tex. Civ. Prac. & Rem. Code Ann. § 27.009(a) (West 2014) (emphasis 

added). 

2 

3818625 
C. Sanctions 

Defendant requests that the Court enter a final judgment awarding at least $415,000.00 in 

sanctions against Plaintiffs. 

An instructive case is Kinney v. BCG Attorney Search, Inc., 03-12-00579-CV, 2014 WL 

1432012, *9-10 (Tex. App.-Austin April 11, 2014, pet. filed) (mem. op.), where the Austin 

Court of Appeals ruled that it was not an abuse of discretion for the trial court to award sanctions 

pursuant to Chapter 27 in an amount equal to 1.66 times the defendant's attorney's fees. 

(affirming sanctions of $75,000 based upon attorney's fees award of $45,000) (copy attached as 

Exhibit B). In Kinney, the plaintiff filed a SLAPP lawsuit in Texas state district court that 

"arose from the same factual background" as a previously filed SLAPP lawsuit in California 

state court which the California court had dismissed. Kinney, 2014 WL 1432012, *8. The Texas 

district court granted in part and denied in part the defendant's motion to dismiss under Chapter 

27, and awarded $75,000 in sanctions under section 27.009(a)(2). Id. On appeal, the Austin 

Court of Appeals reversed the trial court's denial in part of the motion to dismiss and otherwise 

affirmed the trial court's ruling "in all other respects," including the $75,000 award of sanctions. 

Id. at *1, 9-10. 

With regard to the trial court's sanctions award, the Austin court initially observed that: 

Section 27.009(a)(2) requires the trial court to award sanctions if it 

dismisses a claim pursuant to section 27 .003 and gives the trial 

court broad discretion to determine what amount is sufficient to 

deter the party from bringing similar actions in the future. It does 

not expressly require the trial court to explain how it reached its 

determination. 

Id. at *9 (citations omitted). Noting that the California court had awarded the defendants 

$45,000 in attorney's fees in connection with the dismissal of the California lawsuit, the Kinney 

court held: 

3 

3818625 
The record also shows a culmination of multiple actions ... 

concerning claims for the same harm asserted under various legal 

theories and that one of the prior actions resulted in an award of 

attorney's fees against [plaintiffs] in the amount of $45,000. Given 

the history of the litigation, the trial court could have reasonably 

determined that a lesser sanction would not have served the 

purpose of deterrence. In light of the trial court's findings and the 

record before us, as well as the broad discretion afforded the trial 

court by section 27.009, we conclude that the sanction has a direct 

relationship to [plaintiffs'] sanctionable conduct and that the trial 

court did not abuse its discretion in determining that a lesser 

sanction would have been insufficient to deter further actions by 

[plaintiff]. 

Id. (citations omitted). The appellate court added that the $45,000 in attorney's fees awarded to 

the defendant in the California SLAPP litigation served as an effective "guidepost" of the 

economic impact of the plaintiffs' sanctionable conduct in filing a SLAPP lawsuit in Texas and 

provided support for the trial court to conclude that "a sanction of $75,000 was necessary to 

deter [plaintiffs] from bringing similar actions in the future." Id. at *10. 

Under the rationale and holding in Kinney, an award of sanctions against Plaintiffs in the 

amount of at least $415,000 is appropriate. Like the plaintiffs in Kinney, Plaintiffs here have 

demonstrated their intent to bring multiple SLAPP lawsuits against the Houston BBB that are 

based on the "same factual background," concern "the same harm," and assert causes of action 

that could have been averred here. Id. at *8-9. First, Plaintiffs filed-more than two months 

after the First Court of Appeals ruled in favor of Defendant-Plaintiffs' First Amended Original 

Petition ("Amended Petition")-which improperly sought to join nine new defendants and add 

twelve causes of action. The Amended Petition was based upon the same set of facts and 

circumstances alleged in Plaintiffs' Original Petition, the Houston BBB's business review and 

rating of John Moore-and merely reflected counsel's ability to "conceive of different theories 

4 

3818625 
ofreliefbased upon the same factual background.". Id. at *8; Plaintiffs' First Amended Original 

Petition~~ 15-159 (Image No. 57565523). 

Second, after the Court struck the Amended Petition due to Plaintiffs' violation of the 

statutory stay of all trial court proceedings (see TEX. C1v. PRAC. & REM. CODE ANN. § 

51.014(b)), Plaintiffs filed a separate lawsuit (the "Second Legal Action") that is essentially 

identical to the Amended Petition, alleges the same set of core facts and circumstances as the 

Original Petition here, and, importantly, asserts the same harm (loss of business revenue) and 

seeks the same relief (money damages for such loss) as Plaintiffs sought in this lawsuit. See 

Plaintiffs' First Amended Original Petition, filed with this Court in Cause No. 2013-76215 

("New Petition").3 

In short, Plaintiffs' filing of the Second Legal Action, like the filing of the Texas SLAPP 

lawsuit by the plaintiffs in Kinney, supports a conclusion by this Court "that a lesser sanction 

would not ... serve[] the purpose of deterrence." Id. at *9 ("Given the history of the litigation, 

the trial court could have reasonably determined that a lesser sanction would not have served the 

purpose of deterrence.") .. 

In Kinney, the appellate court ruled that it was not an abuse of discretion for the trial 

court to award sanctions under Chapter 27 in an amount equal to 1.66 times the amount of 

attorney's fees awarded to the defendant in the first SLAPP lawsuit. Id. at *10. Here, the jury 

determined the reasonable attorney's fees amount to be $250,001.44. That amount multiplied by 

1.66 equals $415,000. Accordingly, Defendant requests that the Court (1) find that Plaintiffs 

brought this lawsuit to deter or prevent Defendant from exercising its right of free speech, that 

Plaintiffs have filed a subsequent lawsuit for the same purpose, and that, considering the above, 

The Defendant requests that the Court take judicial notice of all of the papers on file and all of the proceedings 

in Cause No. 2013-76215 in connection with its awarding sanctions against Plaintiffs. 

5 

3818625 
sanctions in at least the amount of $415,000 are necessary to deter Plaintiffs from bringing 

subsequent SLAPP lawsuits and (2) based on the above, enter a final judgment requiring 

Plaintiffs to pay to Defendant at least $415,000 in sanctions under Section 27.009(a)(2). TEX. 

CIV. PRAC. & REM. CODE ANN. § 27.009(a)(l) (West 2014). 

IV. CONCLUSION 

In consideration of the foregoing, Defendant respectfully requests that the Court enter a 

final judgment which provides for the following: 

I. an order that Plaintiffs' claims against Defendant be dismissed with prejudice in 

their entirety and that Plaintiffs take nothing on all of their claims; 

2. an award to Defendant of attorneys' fees incurred by Defendant in defending this 

legal action in an amount of at least $250,001.44; 

3. that all costs of court incurred in this cause be taxed against Plaintiffs; 

4. an award to Defendant of $6,237.77 for expenses incurred by Defendant in 

defending this legal action; 

5. an award to Defendant of not less than $415,000 in sanctions against Plaintiffs; 

and 

6. For such other and further relief to which it may be entitled. 

Dated: August 4, 2014. 

3818625 

Respectfully submitted, 

PORTER HEDGES LLP 

By: Isl Jeffrey R. Elkin 

6 

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. 

CERTIFICATE OF CONFERENCE 

Counsel for Plaintiffs and Defendant have conferred in a reasonable effort to resolve the 

dispute without the necessity of Court intervention, and the effort failed. Therefore, it is 

presented to the Court for determination. 

Isl M. Harris Stamey 

M. Harris Stamey 

CERTIFICATE OF SERVICE 

I certify that a true and correct copy of foregoing document has been served upon all 

counsel ofrecord on the 4th day of August, 2014, as follows: 

Lori Hood 

Tamara Madden 

Brian P. Johnson 

919 Milam Street, Suite 1700 

Houston, TX 77002 

(713) 222-2323 (telephone) 

(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 

3818625 

7 

D 

IZl 

D 

D 

D 

By facsimile transmission 

By electronic transmission 

By deposit in the United States Mail 

ByCMRRR 

By hand-delivery 

Isl M. Harris Stamey 

M. Harris Stamey 
7 

CAUSE NO. 2012-35162 

JOHN MOORE SERVICES, INC. and 

JOHN MOORE RENOVATION, LLC, 

Plaintiffs, 

v. 

THE BETTER BUSINESS BUREAU OF 

METROPOLITAN HOUSTON, INC., 

Defendant. 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

IN THE DISTRICT COURT OF 

HARRIS COUNTY, TEXAS 

269th JUDICIAL DISTRICT 

CHARGE OF THE COURT 

Members of the Jury: 

After the closing arguments, you will go to the jury room to decide the case, answer the 

questions that are attached, and reach a verdict You may discuss the case with other jurors only 

when you are all together m the jury room 

Remember my previous mstructlons Do not discuss the case with anyone else, either in 

person or by any other means. Do not do any independent mvestigation about the case or 

conduct any research. Do not look up any words in dictionaries or on the Internet. Do not post 

information about the case on the Internet Do not share any special knowledge or experiences 

with the other jurors Do not use your phone or any other electronic device during your 

deliberations for any reason. 

Any notes you have taken are for your own personal use. You may take your notes back 

into the jury room and consult them during deliberations, but do not show or read your notes to 

your fellow jurors during your deliberations. Your notes are not evidence. Each of you should 

rely on your independent recollection of the evidence and not be influenced by the fact that 

another juror has or has not taken notes. 

You must leave your notes with the bailiff when you are not deliberating. The bailiff will 

give your notes to me promptly after collecting them from you. I will make sure your notes are 

kept in a safe, secure location and not disclosed to anyone. After you complete your 

deliberations, the bailiff will collect your notes. When you are released from jury duty, the 

bailiff will promptly destroy your notes so that nobody can read what you wrote. 

1 

EXHIBIT A 

FILED 

Chris Daniel 

District Clerk 
I. INSTRUCTIONS FOR ANSWERING THE QUESTIONS 

Here are the instructions for answering the questions. 

1. Do not let bias, prejudice, or sympathy play any part m your decision. 

2. Base your answers only on the evidence admitted in court and on the law that is in these 

instructions and questions Do not consider or discuss any evidence that was not admitted in 

the courtroom 

3. You are to make up your own minds about the facts. You are the sole judges of the 

credibility of the witnesses and the weight to give their testimony. But on matters of law, 

you must follow all of my mstructions 

4. If my instructions use a word in a way that is different from its ordinary meaning, use the 

meaning I give you, which will be a proper legal definition. 

5. All the questions and answers are important. No one should say that any question or answer 

is not important. 

6. Answer "Yes" or "No" to all questions unless you are told otherwise. A "Yes" answer must 

be based on a preponderance of the evidence unless you are told otherwise. Whenever a 

question requires an answer other than "Yes" or "No," your answer must be based on a 

preponderance of the evidence unless you are told otherwise 

The term "preponderance of the evidence" means the greater weight of credible evidence 

presented in this case. If you do not find that a preponderance of the evidence supports a 

"Yes" answer, then answer "No." A preponderance of the evidence is not measured by the 

number of witnesses or by the number of documents admitted in evidence. For a fact to be 

proved by a preponderance of the evidence, you must find that the fact is more likely true 

than not true 

A fact may be established by direct evidence or by circumstantial evidence or both. A fact is 

established by direct evidence when proved by documentary evidence or by witnesses who 

saw the act done or heard the words spoken. A fact is established by circumstantial evidence 

when it may be fairly and reasonably inferred from other facts proved. 

7. Do not decide who you think should win before you answer the questions and then just 

answer the questions to match your decision. Answer each question carefully without 

considering who will win. Do not discuss or consider the effect your answers will have. 

8. Do not answer questions by drawing straws or by any method of chance. 

9. Some questions might ask you for a dollar amount. Do not agree in advance to decide on a 

dollar amount by adding up each juror's amount and then figuring the average. 

10. Do not trade your answers. For example, do not say, "I will answer this question your way if 

you answer another question my way." 

2 
r-

...... 

0 

<"> 

<I) 

~ 11.. 

I 

00 

tr') 

....... 

....... 

00 

'O 

....... 

'O 

;...: 

<I) 

s 

::s 

z 

d 

<I) 

s 

::s 

u 

0 

0 

"C 

<I) 

t;:::: 

'€ 

<I) 

u 

11. Unless otherwise instructed, the answers to the questions must be based on the decision of at 

least 10 of the 12 jurors. The same 10 jurors must agree on every answer. Do not agree to be 

bound by a vote of anything less than 10 jurors, even if it would be a majority. 

As I have said before, if you do not follow these instructions, you will be guilty of juror 

misconduct, and I might have to order a new trial and start this process over again. This would 

waste your time and the parties' money, and would require the taxpayers of this county to pay for 

another trial. If a juror breaks any of these rules, tell that person to stop and report it to me 

immediately. 

II. DEFINITIONS 

As used in this Charge, the following words have the following meanings: 

1) "Houston BBB" means The Better Business Bureau of Metropolitan Houston, Inc. 

2) "John Moore" means John Moore Services, Inc and John Moore Renovations, LLC. 

3 
III. QUESTIONS 

Question No. 1 

What is a reasonable fee for the necessary services of Houston BBB's attorneys in defending 

against John Moore's legal action, stated in dollars and cents? 

You are instructed that the following factors should be considered when 

determining the amount of attorneys' fees: 

a. the time and labor involved, the novelty and difficulty of the 

questions involved, and the skill required to perform the legal 

services properly; 

b. the likelihood that the acceptance of the particular employment 

will preclude other employment by the lawyer; 

c the fee customarily charged in the locality for similar services; 

d. the amount mvolved and the results obtained; 

e. the time limitations imposed by the client or the circumstances; 

f. the nature and length of the professional relationship with the 

client, 

g the experience, reputation and ability of the lawyer or lawyers 

performing the services; and 

h. whether the fee is fixed or contingent on results obtained or 

uncertainty of collection before the legal services have been 

rendered. 

Answer with an amount for each of the following: 

a. 

b. 

c. 

For representation in the trial court before and during Houston BBB's original 

interlocutory appeal. 

Answer: $ I 0 <.,., 3Co 9 • .?.sa 

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

Answer:$ g1, 3too. Bo 

For representation at the petition-for-review stage to the Supreme Court of Texas for the 

original interlocutory appeal. 

Answer: $ 37. q13;:i.. • oS . 4 
r-

<+-< 0 

\/") 

Q) 

~ 

°"' I 

00 

\/") 

--

00 

\0 

--\0 

;.; 

Q) 

"E 

z 

~ 

0 

~ 0 

"'O 

Q) 

!.+::: 

'€ 

Q) 

u 

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

Answer: $ ~4, c9eA . :l-~ 

e. For representation after this trial in the Court of Appeals. 

Answer: $ __ _,,¢~---

f. For representation after this trial at the petition-for-review stage in the Supreme Court of 

Texas. 

Answer:$ __ JO ...__ ___ _ 

g. For representation after this tnal at the merits-briefing stage in the Supreme Court of 

Texas. 

Answer: $ _ ___.f4=----

h. For representation after this trial through oral argument and the completion of 

proceedings in the Supreme Court of Texas. 

Answer.$ -~RJ ___ _ 

5 
' L 

IV.INSTRUCTIONS REGARDING THE PRESIDING JUROR 

1. When you go into the jury room to answer the questions, the first thing you will need to do is 

choose a presiding juror 

2. The presiding juror's duties are to: 

a. have the complete charge read aloud if it will be helpful to your deliberations; 

b. preside over your deliberations-meaning to manage the discussions and see that you 

follow these instructions; 

c. give written questions or comments to the bailiff, who will give them to the judge; 

d. write down the answers on which you agree; 

e. get the signatures for the verdict certificate, and 

f. notify the bailiff that you have reached a verdict. 

Do you understand the duties of the presidmgjuror? If you do not, please tell me now. 

V. INSTRUCTIONS FOR SIGNING THE VERDICT CERTIFICATE 

1. Unless otherwise instructed, you may answer the questions on a vote of IO jurors. The same 

10 jurors must agree on every answer in the charge. This means you may not have one group 

of 10 jurors agree on one answer and a different group of 10 jurors agree on another answer. 

2. If 10 jurors agree on every answer, those 10 Jurors sign the verdict. 

3. If 11 jurors agree on every answer, those 11 jurors sign the verdict. 

4. If all 12 of you agree on every answer, you are unanimous and only the presiding juror signs 

the verdict. 

5. All jurors should deliberate on every question You may end up with all 12 of you agreeing 

on some answers, while only 10 or 11 of you agree on other answers. But when you sign the 

verdict, only those 10 who agree on every answer will sign the verdict. 

(!) 

~ Do you understand these mstructions? If you do not, please tell me now. 

11.. I 

00 

"" 

6 

~ Judge, 269th District Court 
r-

'+--< 

0 

rQ) 

~ i:i.. 

I 

00 

V\ 

--00 

IC 

-IC 

;..: 

Q) 

.D 

§ 

z 

Q 

8 

::I 

0 

0 

0 

"O 

Q) 

!+:: 

'€ 

Q) 

u 

CERTIFICATE 

We, the jury, have answered the foregoing questions as indicated and return our answers 

into court as our verdict. 

I certify that the jury was unanimous m answer to the following questions: 

Answer "All" or list question, includmg subparts: _L.A........,_/...::../ _________ _ 

Printed Name of Juror Presiding 

If the answers to some questions were not unanimous, the jurors who agreed to those answers 

must certify as follows. 

We agree to the answers to the following questions: 

List questions, including subparts: 

SIGNATURE NAME PRINTED 

1. 

2. 

3. 

4. 

5. 

6. 

7. 

8. 

9 . 

10. 

11. 

7 
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 August 4. 2014 

Certified Document Number: 

Chris Daniel, DISTRICT CLERK 

HARRIS COUNTY, TEXAS 

61681158 Total Pages: 7 

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 
Kinney v. BCG Attorney Search, Inc., Not Reported in S.W.3d (2014) 

38 IER Cases 170, 42 Media L. Rep. 1812 

2014 WL 1432012 

SEE TX R RAP RULE 47.2 FOR DESIGNATION AND 

SIGNING OF OPINIONS. 

MEMORANDUM OPINION 

Court of Appeals of Texas, 

Austin. 

Appellant, Robert KINNEY//Cross-Appellants, 

BCG Attorney Search, Inc.; and Professional 

Authority, Inc. d/b/a Legal Authority 

v. 

Appellees, BCG ATTORNEY SEARCH, INC.; 

and Professional Authority, Inc. d/b/ a Legal 

Authority//Cross-Appellee, Robert Kinney. 

No. 03-12-00579-CV. April 11, 2014. 

From the District Court of Travis County, 353rd Judicial 

District, No. D-1-GN-12-001521, Gary Harger, Judge 

Presiding. 

Attorneys and Law Firms 

Daniel H. Byrne, Ariel Henderson, Dale L. Roberts, Eleanor 

Ruffner, Fritz, Byrne, Head & Harrison, PLLC, Austin, 

TX, for Appellant, Robert Kinney//Cross-Appellants, BCG 

Attorney Search, Inc .; and Professional Authority, Inc. d/b/ 

a Legal Authority. 

Martin J. Siegel, Law Office of Martin J. Siegel, P.C., 

Houston, TX, Greggory A. Teeter, Teeter Law Firm, 

Dallas, TX, for Appellees, BCG Attorney Search, Inc.; and 

Professional Authority, Inc. d/b/a Legal Authority//CrossAppellee, Robert Kinney. 

Robert E. Kinney, Austin, TX, pro se. 

Before Chief Justice JONES, Justices GOODWIN and 

FIELD. 

Opinion 

MEMORANDUM OPINION 

MELISSA GOODWIN, Justice. 

*1 We withdraw our opinion and judgment dated August 

21, 2013, and substitute the following in its place. Appellees' 

motion for rehearing is denied. 

~~~~~~~~~~~~~~~~~~ 

This is an interlocutory appeal from the trial court's partial 

denial, and cross-appeal from its partial grant, of a motion 

to dismiss under chapter 27 of the Texas Civil Practices and 

Remedies Code. See generally Tex. Civ. Prac. & Rem.Code 

§§ 27.001-.011. Chapter 27, known as the Texas Citizens 

Participation Act (TCPA), is an "anti-SLAPP" statute that 

permits defendants targeted by "Strategic Lawsuits Against 

Public Participation" or SLAPP suits to move for dismissal 

if the action relates to the defendant's exercise of the right 

of free speech, right to petition, or right of association. See 

id § 27.003. BCG Attorney Search, Inc., and Professional 

Authority, Inc. d/b/a/ Legal Authority (sometimes jointly 

BCG) sued Kinney for breach of contract, breach of fiduciary 

duty, and violations of the Lanham Act, see 15 U.S.C. § 

l 125(a), based on statements Kinney made in a post on an 

internet website. Kinney filed a motion to dismiss pursuant 

to section 27.003 of the TCPA. The trial court granted the 

motion as to BCG's Lanham Act claim and awarded sanctions 

against BCG. See Tex. Civ. Prac. & Rem.Code § 27.009(a) 

(2) (if trial court orders dismissal, it shall award sanctions as 

it determines sufficient to deter party from bringing similar 

actions). The trial court denied the motion as to BCG's breach 

of contract and breach of fiduciary duty claims. For the 

reasons that follow, we reverse the trial court's denial of the 

motion as to the breach of contract and fiduciary duty claims, 

render judgment dismissing those claims, and affirm the order 

in all other respects. 

FACTUAL AND PROCEDURAL BACKGROUND 

BCG and Legal Authority are two of more than 100 affiliated 

job search websites, employment services, recruiting firms, 

online employment news magazines, and student loan 

companies owned by Andrew Harrison Barnes. From 2002 to 

2004, Kinney worked for BCG, a legal recruiting company. 

Kinney contends his employment agreement with BCG 

was oral, confirmed by an offer letter that asked him 

to keep the terms of the offer confidential. According to 

Barnes, the terms of Kinney's employment were governed 

by a written employment agreement signed by Kinney. The 

employment agreement, on which Kinney maintains his 

signature was forged, includes a confidentiality provision. 

After leaving BCG, Kinney formed a legal recruiting firm, 

Kinney Recruiting, Inc. In May 2008, Kinney made a 

single post to an internet website describing BCG's business 

operations "based on his experience as a former employee" 

and stating negative opinions of Barnes and his companies. 

EXHIBIT B 

V'l'BStlavvNexr © 2014 Thomson Reuters. No claim to original U.S Government Works. 
Kinney v. BCG Attorney Search, Inc., Not Reported in S.W.3d (2014) 

38 IER Cases 170, 42 Media L. Rep. 1812 

The post was made anonymously and contained no reference 

to Kinney or his business. 

Barnes, BCG, and other related companies (jointly Barnes 

and BCG) brought suit in California state court against 

Kinney, Kinney Recruiting, and other defendants who had 

posted comments concerning Barnes and BCG on the 

internet, asserting claims for libel, unfair competition, and 

intentional interference with economic advantage. In the 

complaint, Barnes and BCG alleged that the statements 

were false and defamatory, had damaged the reputations of 

Barnes and his companies, and had caused them to lose 

customers and business opportunities, resulting in damages 

in the amount of at least $10 million. Kinney filed a 

motion to strike under California's anti-SLAPP statute. See 

Cal.Civ.Proc.Code §§ 425.16-.18. The California court held 

that, with the exception of BCG, the plaintiffs had failed 

to demonstrate a probability that they would prevail on the 

merits. See id § 425.16(b)(l) (cause of action arising from 

defendant's right of petition or free speech subject to motion 

to strike unless court determines plaintiff has established 

probability of prevailing on merits). 

*2 As reasons for its conclusion, the court stated that 

(1) notwithstanding the allegations of unfair competition 

and interference with economic advantage, the gravamen 

of the action was libel and the complaint was barred 

by the one-year statute of limitations for libel, see id § 

340( c ), because Kinney and Kinney Recruiting had not 

been added as defendants until more than one year after 

the posting of Kinney's comments and (2) the defendants 

had produced evidence that there was already a good deal 

of online discussion regarding plaintiffs' businesses when 

Kinney posted his remarks, which were based on first-hand 

knowledge and were statements of opinion that are privileged 

communications under section 47 of the California Civil 

Code, 1 see id § 47(c) (defining privileged communication 

to include one made without malice by interested party to 

interested party). The California court also awarded Kinney 

and Kinney Recruiting more than $45,000 in attorney's fees 

and costs as the prevailing parties. See id § 4 25 .16( c ). As 

for BCG, the court reasoned that it was Kinney's competitor 

and was therefore exempt from the anti-SLAPP statute. See 

id § 425.17(c). Subsequently, however, the court dismissed 

BCG's claims as barred by limitations because BCG had not 

been added as a plaintiff until after the one-year statute of 

limitations for libel had expired, see id. § 340( c ), and the court 

of appeal affirmed. 2 

2 

BCG contends that the second reason stated by the 

California court for concluding that plaintiffs had not 

demonstrated a probability of prevailing on the merits 

was "dicta." We do not agree with that construction of 

the court's order. 

BCG Attorney Search v. Kinney, No. B223326, 2011 

Cal.App. Unpub. LEXIS 5460, 2011 WL 2936773 

(July 21, 2011) (not certified for publication) (cited for 

purposes of case history and res judicata analysis only). 

See Cal. R. Court 8.l l 15(b)(l). 

In May 2012, BCG filed this action against Kinney asserting 

breach of the employment contract and breach of fiduciary 

duty for Kinney's disclosure of confidential information and 

violations of the Lanham Act for false and defamatory 

statements in Kinney's single online post. BCG alleged that it 

had suffered reputational injury and lost revenues and profits 

as a result of the post and sought damages of at least $1 

million. 3 Kinney filed a motion to dismiss pursuant to section 

27.003 of the TCPA. The trial court heard the motion on July 

3, 2012, and on that same day issued a "Court's Rendition on 

Defendant's First Amended Motion to Dismiss and for Other 

Relief." Two days later the trial court issued and filed with 

the clerk a document entitled "Amended Court's Rendition on 

Defendant's First Amended Motion to Dismiss and for Other 

Relief," in which the court "render[ed]" that (1) the conduct 

alleged regarding the Lanham Act or other claims of libel or 

disparagement is protected speech governed by the TCP A and 

(2) the breach of contract and breach of fiduciary duty claims 

stem from an alleged employment agreement, the validity of 

which is a matter of fact, not law, to be determined by the trier 

of fact. Consequently, the trial court "render[ed] dismissal" 

of the Lanham Act claim and denial of the motion to dismiss 

as to the claims for breach of contract and breach of fiduciary 

duty. In connection with the dismissal of the Lanham Act 

claim, the trial court awarded $75,000 in sanctions against 

BCG. See Tex. Civ. Prac. & Rem.Code§ 27.009(a)(2). 

3 Between the dismissal of the California action and the 

institution of this action, BCG sought arbitration of 

certain claims, but the arbitration did not occur. The 

parties offer differing explanations for why there was no 

arbitration. 

*3 In the cover letter transmitting the amended rendition to 

the parties, the trial court asked counsel for Kinney to prepare 

an order consistent with the rendition. Kinney submitted an 

order, to which BCG objected and proposed revisions. Kinney 

filed his notice of appeal on August 31, 2012, and BCG 

filed a "conditional" notice of cross-appeal on September 

WestlawNexr@ 2014 Thomson Reuters. No claim to original U.S. Government Works. 2 
Kinney v. BCG Attorney Search, Inc., Not Reported in S.W.3d (2014) 

38 IER Cases 170, 42 Media L. Rep. 1812 

14, 2012. 4 On November 9, 2012, the trial court signed the 

order as submitted by Kinney. The order included additional 

findings not contained in the rendition, including that (1) the 

Lanham Act claims had been brought to deter or prevent 

Kinney from exercising his constitutional rights and for the 

improper purpose of harassing Kinney and (2) considering 

finding (1) and the previous litigation between the parties, 

sanctions in the amount of $75,000 were necessary to deter 

BCG from bringing similar actions. 

4 In filing a "conditional" notice of cross-appeal, BCG 

reserved its right to argue that the trial court's failure to 

sign the order until more than 30 days after the hearing 

resulted in denial of the entire motion by operation 

of law under sections 27.005 and 27.008, an issue we 

address below. See Tex. Civ. Prac. & Rem.Code §§ 

27.00S(a), .008(a). 

DISCUSSION 

Standard of Review 

Tbe parties' issues concerning the TCP A present matters 

of statutory construction, which is a question of law that 

we review de novo. See Railroad Comm'n of Tex. v. Texas 

Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 

624 (Tex.2011). Of primary concern is the express statutory 

language. See Galbraith Eng'g Consultants, Inc. v. Pochucha, 

290 S. W.3d 863, 867 (Tex.2009). We apply the plain meaning 

of the text unless a different meaning is supplied by legislative 

definition or is apparent from the context or the plain meaning 

leads to absurd results. Marks v. St. Luke's Episcopal Hosp., 

319 S.W.3d 658, 663 (Tex.2010). "We generally avoid 

construing individual provisions of a statute in isolation from 

the statute as a whole [,]" Texas Citizens, 336 S.W.3d at 

628, and we must consider a provision's role in the broader 

statutory scheme, 20801, Inc. v. Parker, 249 S.W.3d 392, 396 

(Tex.2008). We presume that ''the entire statute is intended 

to be effective [,]"Tex. Gov't Code § 311.021(2), and we 

interpret it so as to give effect to every part, Parker, 249 

S.W.3d at 396. 

Jurisdiction over Interlocutory Appeal 

Application of Amendment to TCPA 

As a preliminary jurisdictional matter, we consider whether 

the TCP A authorizes this interlocutory appeal and crossappeal. Since the enactment of chapter 27, our sister courts 

have wrestled with the question of whether section 27.008 

provides for interlocutory appeal of a trial court's express 

ruling on a motion to dismiss and have come to differing 

conclusions. Compare KTRK TV. Inc. v. Robinson, 490 

S.W.3d 682, 688 (Tex.App.-Houston [1st Dist.] 2013, pet. 

denied) (finding jurisdiction over order denying motion); 

San Jacinto Title Servs. of Corpus Christi, LLC v. Kingsley 

Props., LP., -S.W.3d --, No. 13-12--00352-CV, 2013 

Tex.App. LEXIS 5081, at *15, 2013 WL 1786632 (Tex.App.-

Corpus Christi Apr. 25, 2013, pet. denied) (same); Direct 

Commercial Funding, Inc. v. Beacon Hill Estates, LLC, No. 

14-12--00896-CV, 2013 Tex.App. LEXIS 1898, at *8-9, 

2013 WL 407029 (Tex.App.-Houston [14th Dist.] Jan. 24, 

2013, order) (finding jurisdiction over order granting motion 

that was interlocutory because of pending counterclaims) with 

Jennings v. Wallbuilder Presentations, Inc., 378 S.W.3d 519, 

528-29 (Tex.App.-Fort Worth 2012, pet. denied) (finding 

no jurisdiction over order denying motion); Lipsky v. Range 

Prod. Co., No. 02-12-00098-CV, 2012 Tex.App. LEXIS 

7059, at *2, 2012 WL 3600014 (Tex.App.-Fort Worth 

Aug 23, 2012, pet. denied) (mem.op.) (same). In its 2013 

session, however, the legislature made several revisions to 

the TCP A, including a corollary revision to chapter 51 of the 

Civil Practices and Remedies Code, to address the apparent 

ambiguity in chapter 27 concerning interlocutory appeals. 

See Act of May 24, 2013, 83d Leg., R.S., H.B. 2935, § 4 

(codified at Tex. Civ. Prac & Rem.Code § 51.014(a)(12)) 

(the amendment). The amendment to chapter 51 expressly 

provides for interlocutory appeal of a trial court's denial of 

a motion to dismiss filed under section 27.003. See id. The 

amendment is not expressly retroactive, nor does it contain a 

savings clause for pending suits. See id. Because it received a 

vote of two-thirds of all the members elected to each house, 5 

the amendment became effective immediately. See Act of 

May 24, 2013, 83rd Leg., R.S., H.B. 2935, § 6. Thus, we are 

faced with the question of whether to apply the amendment 

to this case retroactively. 

5 See http://www.capi tol.state.tx.us/BillLookup/ 

History.aspx? LegSess= 83R & Bill=HB2935 (Actions/ 

Record Vote). 

*4 The Texas Constitution provides that "[n]o bill of 

attainder, ex post facto law, retroactive law, or any law 

impairing the obligation of contracts shall be made." Tex. 

Const. art. I, § 16. "However, not all statutes that apply 

retroactively are constitutionally prohibited." Subaru of Am., 

Inc. v. David McDavid Nissan, Inc. 84 S.W.3d 212, 219 

(Tex.2002). A retroactive statute violates the constitution 

only if, when applied, it takes away or impairs vested rights. 

Id Generally, courts presume that the legislature intends 

WesllaiNNexr@ 2014 Thomson Reuters. No claim to original U.S Government Works. 3 
Kinney v. BCG Attorney Search, Inc., Not Reported in S.W.3d (2014) 

38 IER Cases 170, 42 Media L. Rep. 1812 

statutes and amendments to operate prospectively unless 

they are expressly made retroactive. Tex. Gov't Code § 

311.022; City of Austin v. Whittington, 384 S. W.3d 766, 790 

(Tex.2012); University of Tex. Sw. Med. Ctr. v. Estate of 

Arancibia, 324 S.W.3d 544, 547 (Tex.2010). However, this 

general rule does not apply when the statute or amendment is 

procedural, remedial, or jurisdictional because such statutes 

generally do not affect vested rights. Whittington, 384 S. W .3d 

at 790; Estate of Arancibia, 324 S.W.3d at 548. Procedural, 

remedial, and jurisdictional laws should be enforced as they 

exist at the time the judgment is rendered. Whittington, 384 

S.W.3d at 790; Estate of Arancibia, 324 S.W.3d at 547-

48; Texas Mun. Power Agency v. Public Util. Comm'n, 253 

S.W.3d 184, 198 (Tex.2007) Gurisdictional statutes should be 

applied as they exist at time of judgment). 

In providing for interlocutory appeal, the amendment does not 

take away or impair the parties' vested rights. Rather, it is a 

jurisdictional statute that "speaks to the court's power rather 

than to the parties' rights or obligations." See Subaru of Am., 

84 S.W.3d at 220. It does not take away substantive rights 

but simply changes the time at which an appellate court can 

hear the case. See id. (citing Landgraf v. US! Film Prods., 

511 U.S. 244, 274 (1991) (new statute conferring or ousting 

jurisdiction merely changes tribunal that is to hear case and 

applies to existing cases)). Statutes like the amendment that 

do not deprive the parties of a substantive right and address 

the power of the court rather than the rights or obligations of 

the parties should be applied in cases pending when the statute 

is enacted. See Whittington, 384 S.W.3d at 790; Estate of 

Arancibia, 324 S.W.3d at 548. Accordingly, we conclude that 

we must apply the amendment to this case, see Whittington, 

384 S.W.3d at 790; Estate of Arancibia, 324 S.W.3d at 548, 

and would have jurisdiction over this interlocutory appeal if 

the TCP A were properly invoked. 

Application of TCPA 

Because it also implicates our jurisdiction over this matter, 

we turn next to BCG's second issue on cross-appeal: whether 

the TCPA applies to Kinney's statements. BCG argues 

that Kinney did not establish that the action relates to 

Kinney's right of free speech or to petition. 6 See Tex. Civ. 

Prac. & Rem.Code § 27.003(a). Although BCG does not 

argue this issue as one of jurisdiction, if Kinney failed to 

invoke the provisions of the TCP A, then this Court has no 

jurisdiction over an interlocutory appeal brought pursuant to 

its provisions. An interlocutory order is not appealable unless 

a statute expressly provides for appellate jurisdiction. Stary 

v. DeBord, 967 S.W.2d 352, 352-53 (Tex.1998). If Kinney's 

statements do not fall within the provisions of the TCPA, then 

the amendment providing for interlocutory appeal when a trial 

court denies a motion to dismiss filed under the TCP A cannot 

apply. See id. 

6 Kinney contends that BCG has waived this argument by 

not presenting it in the trial court. However, because it 

pertains to this Court's jurisdiction, we will address it. 

See Freedom Communs., Inc. v. Coronado, 372 S.W.3d 

621, 623 (Tex.2012) (appellate court must consider its 

jurisdiction even if consideration is sua sponte); Minton 

v. Gunn, 355 S.W.3d 634, 639 (Tex.2011) (appellate 

court must determine its jurisdiction to consider appeal 

before reaching merits). 

*5 Section 27.003 provides that a party may file a motion 

to dismiss if a legal action "is based on, relates to, or is in 

response to [that] party's exercise of the right of free speech, 

right to petition, or right of association." Tex. Civ. Prac. & 

Rem.Code§ 27.003(a). Section 27.001(3) defines "exercise 

of the right of free speech" as "a communication made in 

connection with a matter of public concern." Id. § 27.001 (3). 

"Matter of public concern" is defined as including an issue 

related to "a good, product, or service in the marketplace." Id. 

§ 27.001 (7)(E). Section 27 .005(b) provides that a court "shall 

dismiss a legal action against a moving party if the moving 

party shows by a preponderance of the evidence" that the 

action is based on, relates to, or is in response to the moving 

party's exercise of the right of free speech, right to petition, 

or right of association. Id. § 27.005(b). 

BCG contends that Kinney's statements do not relate to free 

speech because they were false and defamatory and thus not 

constitutionally protected. Kinney argues that determining 

whether a communication meets the statutory definition of the 

"exercise of the right of free speech" does not entail deciding 

whether the speech is true. We agree. Whether Kinney's 

statements were defamatory and thus actionable is reviewable 

in the second part of an appellate court's analysis, under 

section 27.005(c), which precludes dismissal ifthe plaintiff 

establishes by clear and specific evidence a prima facie case 

for each essential element of its claim. See id. § 27.005(c); 

In re Lipsky, 411 S.W.3d 530, 543 (Tex.App.-Fort Worth 

2013, orig. proceeding). However, "[t]he statutory definitions 

for the exercise of the right of free speech and the exercise 

of the right to petition do not include language requiring us 

to determine the truth or falsity of communications [in our 

threshold determination of] whether a movant for dismissal 

has met its preliminary preponderance of the evidence burden 

WestlawNexr © 2014 Thomson Reuters. No claim to original U.S. Government Works. 4 
Kinney v. BCG Attorney Search, Inc., Not Reported in S.W.3d (2014) 

38 IER Cases 170, 42 Media L. Rep. 1812 

under section 27.005(b)." In re Lipsky, 411 S.W.3d at 543; 

see also Harris Cnty. Hosp. Dist. v. Tomball Reg'/ Hosp., 283 

S.W.3d 838, 846 (Tex.2009) (court should not add language 

to statute when construing it). 

Under section 27.001, a communication need only be 

"in connection with a matter of public concern," which 

includes issues "related to a good, product, or service in 

the marketplace." Tex. Civ. Prac. & Rem.Code§ 27.001(3), 

(7)(E). The record shows that Kinney's online statements 

related to services BCG provides to the public and that 

BCG's claims are based on those statements. Considering 

the plain language of the TCPA, see Marks, 319 S.W.3d 

at 663, and construing section 27.005 as a whole and in 

the context of the full statute, see Texas Citizens, 336 

S.W.3d at 628, we conclude that Kinney has met his initial 

burden of showing by a preponderance of the evidence 

that his statements were made in connection with a matter 

of public concern and that this action relates to those 

statements so that the TCPA applies, see Tex. Civ. Prac. 

& Rem.Code§§ 27.001(3), (7)(E), .005(b); Avila v. Larrea, 

394 S.W.3d 646, 655 (Tex.App.-Dallas 2012, pet. denied) 

(allegedly false and defamatory broadcast statements about 

lawyer's services constituted exercise of right of free speech 

and TCPA applied); see also Lipsky, 411 S.W.3d at 543 

(declining to decide whether statements were defamatory 

when determining whether plaintiffhad shown statements fell 

within provisions of TCP A). 

*6 BCG also argues that the TCPA does not apply because 

Kinney's statements are exempt under section 27.0lO(b). See 

Tex. Civ. Prac. & Rem.Code§ 27.0lO(b). Section 27.0lO(b) 

provides that: 

This chapter does apply to a legal 

action brought against a person 

primarily engaged in the business of 

selling or leasing goods or services, 

if the statement or conduct arises 

out of the sale or lease of goods, 

services, or an insurance product or 

a commercial transaction in which 

the intended audience is an actual or 

potential buyer or customer. 

Id. 7 Section 27 .0 IO(b) thus provides, in relevant part, that 

a statement is exempt from the TCP A if the action is 

against a person primarily engaged in selling services and 

the statement arises from the sale of services. This provision 

has been construed to mean that for the exemption to apply, 

the statement must be made for the purpose of securing 

sales in the goods or services of the person making the 

statement. See Newspaper Holdings, Inc. v. Crazy Hotel 

Assisted Living, Ltd., 416 S.W.3d Tl, 88-89 (Tex.App.-

Houston [lst Dist.] 2013, pet. filed) (following four-prong 

analysis devised by Supreme Court of California in Simpson 

Strong-Tie Co., Inc. v. Gore, 49 Cal.4th 12, 109 Cal.Rptr.3d 

329, 230 P.3d 1117, 1129 (Cal.2010) for determining whether 

exemption applied under essentially identical California antiSLAPP statute and concluding statements did not arise out 

of sale of goods or services of defendant); see also Better 

Bus. Bureau of Metro. Houston, Inc. v. John Moore Servs., 

Inc ., No. 01-12-00990-CV, 2013 Tex.App. LEXIS 8756, 

at *12-13, 2013 WL 3716693 (Tex.App.-Houston [1st Dist.] 

July 16, 2013, pet. denied) (construing section 27.0IO(b) in 

context of Better Business Bureau's statements concerning 

its selling of its memberships). In Newspaper Holdings, the 

court applied the analysis of the California Supreme Court 

and concluded that the plaintiffs had the burden to show that 

the exemption applied. 416 S.W.3d at 89; see also Better 

Bus. Bureau of Metro. Dallas v. BH DFW, Inc., 402 S.W.3d 

299, 309 (Tex.App.-Dallas 2013, pet. denied) (applying 

general rule that burden of proving statutory exception rests 

on party seeking benefit from exception to construction of 

section 27.0lO(b)). The court then applied the Simpson fourpronged test and held that the plaintiffs had not met their 

burden as to Newspaper Holdings (NHI), concluding that the 

"complained-of statements d[id] not arise out of the lease or 

sale of the goods or services that NHI sells-newspapers." 

416 S.W.3d at 89. 

7 Section 27.0lO(b) has been referred to as the 

"commercial speech" exemption. See Pena v. Pere!, 

417 S.W.3d 552, 555 (Tex.App.-El Paso 2013, no 

pet.); Newspaper Holdings, Inc. v. Crazy Hotel Assisted 

Living, Ltd., 416 S.W.3d 71, 88 (Tex.App.-Houston [1st 

Dist.] 2013, pet. filed). 

We agree with the reasoning of our sister courts in Newspaper 

Holdings and BH DFW, Inc. that the plaintiff has the burden 

under section 27.01 O(b) to show that the statements arise from 

the sale of the defendant's services so that the exemption 

applies. BCG does not dispute that the statements must arise 

from the sale of Kinney's services but contends that his online 

statements did "arise out of' the sale of those services because 

Kinney is in the business of selling legal recruiting services 

and it is "obvious" that Kinney would not have made the 

post had it not been for the fact that he and BCG were 

competitors. 8 On the facts of this case, we do not find this 

argument persuasive. 

WestlawNexr@ 2014 Thomson Reuters. No claim to original U.S Government Works. 5 
Kinney v. BCG Attorney Search, Inc., Not Reported in S.W.3d (2014) 

38 IER Cases 170, 42 Media L. Rep. 1812 

8 Although BCG initially states that the entire subject of 

Kinney's post concerns legal services that are identical 

to those sold by Kinney, it ultimately argues that Kinney 

made the statements because he was a competitor ofBCG 

and the statements therefore" 'arise out of Kinney's sale 

of services." 

*7 Here, Kinney's statements were made anonymously and 

made no reference whatsoever to his business or the sale of 

his services. BCG offered no evidence that the post was " 'for 

the purpose of obtaining approval for, promoting, or securing 

sales or leases of, or commercial transactions in, [Kinney's] 

goods or services or in the course of delivering [Kinney's] 

goods or services.' "See Newspaper Holdings, 416 S.W.3d 

at 88 (quoting Simpson four-prong test); see also BH DF1¥, 

402 S.W.3d at 309 (plaintiff offered no evidence statements 

arose out of defendant's commercial transaction and failed to 

establish exemption). We therefore conclude that BCG has 

not met its burden of showing that the statements arose out 

of the sale of Kinney's services so as to be exempted from 

the TCPA under section 27.0IO(b) and that, consequently, 

the TCPA was properly invoked. We overrule BCG's second 

issue on cross-appeal as to the application of the TCPA. 

Effect of Trial Court's Rendition 

The final issue that implicates our jurisdiction over this appeal 

is BCG's first issue in its cross-appeal. BCG contends that 

because the trial court did not sign an order until more than 30 

days after the hearing, Kinney's entire motion to dismiss was 

overruled by operation of law. Section 27.005(a) provides 

that the trial court "must rule" on a motion to dismiss no 

later than the 30th day following the date of the hearing on 

the motion, and section 27.008(a) provides that if the trial 

court does not "rule on a motion to dismiss ... in the time 

prescribed by Section 27.005, the motion is considered to 

have been denied by operation of law .... " Tex. Civ. Prac. & 

Rem.Code §§ 27.005(a), .008(a). BCG argues that a signed 

order is required under section 27.005, that the rendition 

is not a signed order, and that the trial court's request for 

counsel to prepare an order indicates the rendition was not 

final. Consequently, BCG contends, the trial court did not 

rule within 30 days of the hearing, and the motion to dismiss 

was overruled in its entirety by operation of law. See id § 

27.008(a). 

We do not find these arguments persuasive. Under sections 

27.005(a) and 27.008(a), the court need only "rule" within 30 

days of the hearing. See id §§ 27.005(a), .008(a). Although 

the TCP A does not define "rule," the plain meaning of the 

verb is "to decide a legal point." See Black's Law Dictionary 

1446 (9th ed.2009); see also Marks, 319 S.W.3d at 663 

(we apply plain meaning unless meaning is supplied by 

legislature). In the rendition, the trial court expressly decided 

the legal points as to dismissal of each claim and rendered 

its decision or "ruling." CJ Tex. Fam.Code § 101.026 (" 

'Render'" means the pronouncement by a judge of the court's 

ruling on a matter.") (emphasis added). Further, in looking at 

the TCPA as a whole, see Texas Citizens, 336 S.W.3d at 628, 

we observe that section 27.008(b) refers not to the trial court's 

"ruling" but to its "order." See Tex. Civ. Prac. & Rem.Code 

§ 27.008(b) (appellate court shall expedite appeal from a trial 

court's order on a motion to dismiss). If the legislature had 

intended to require the trial court to sign an order within 30 

days, it could have done so; instead the plain language of the 

statute requires only that the trial court "rule" within 30 days. 

See Marks, 319 S.W.3d at 663. 

*8 In Greene v. State, 324 S.W.3d 276, 280-82 (Tex.App.-

Austin 2010, no pet.), this Court drew a similar distinction 

between a trial court's ruling and order, holding that a "letter 

ruling" stating that 'judgment is rendered for the plaintiffs" 

and requesting counsel to prepare a judgment for the court's 

signature, while insufficient to serve as an appealable order, 

can serve as the rendition of judgment if it is filed with the 

clerk. Id at 281. Here, the trial court rendered its decision 

in writing, signed the rendition, and delivered it to the clerk. 

We conclude that the amended rendition, signed two days 

after the hearing, was a timely "ruling" within the meaning 

of "rule" in sections 27.005 and 27.008 and the motion 

to dismiss was not overruled by operation of law under 

section 27.008(a). See id We overrule BCG's first issue on 

cross-appeal and conclude that we have jurisdiction over this 

interlocutory appeal and cross-appeal. 

Res Judicata 

We turn, then, to Kinney's first issue on appeal. Kinney 

contends that this action is barred by res judicata based on 

the California court's order, an affirmative defense he asserted 

below. As a preliminary matter, BCG argues that the TCPA 

does not require it to overcome Kinney's affirmative defenses. 

In the 2013 revisions to the TCPA, the legislature added 

subsection (d) to section 27.005 providing that the trial court 

"shall dismiss" a case "if the moving party establishes by 

a preponderance of the evidence each essential element of 

a valid defense to the nonmovant's claim." See Act of May 

24, 2013, 83d Leg., R.S., H.B. 2935, § 2 (codified at Tex. 

Civ. Prac. & Rem.Code § 27.005(d)). Thus, as amended, 

\l\lestlavvNexr@ 2014 Thomson Reuters. No claim to original U.S. Government Works. 6 
Kinney v. BCG Attorney Search, Inc., Not Reported in S.W.3d (2014) 

38 IER Cases 170, 42 Media L. Rep. 1812 

section 27.005 requires a nonrnovant to overcome a movant's 

affirmative defenses to avoid dismissal. See id However, 

even prior to the addition of section 27.005(d), the plain 

language of section 27 .006 required the court to consider "the 

pleadings and supporting and opposing affidavits stating the 

facts on which the liability or defense is based." See Tex. Civ. 

Prac. & Rem.Code § 27 .006( a) (emphasis added); Marks, 319 

S.W.3d at 663. Therefore, without reaching the question of 

whether new subsection (d) applies to this case, we conclude 

that under either version of the statute, the result is the same 

and BCG is required to overcome any affirmative defenses 

Kinney established. See Tex. Civ. Prac. & Rem.Code § 

27.006(a); Act of May 24, 2013, 83d Leg., R.S., H.B. 2935, 

§ 2; Tex.R.App. P. 47.1. Therefore, while neither section 

27 .006( a) nor new subsection ( d) changes the fact that Kinney 

had the burden of proof on his affirmative defense of res 

judicata, see Commint Tech. Servs., Inc. v. Quickel, 314 

S.W.3d 646, 651 (Tex.App.-Houston [14th Dist.] 2010, no 

pet.), under either section 27.006(a) or new section 27.005(d), 

it was proper, under the plain language of either version 

of the statute, for the trial court to consider the pleadings 

and evidence relevant to res judicata in ruling on Kinney's 

motion to dismiss. 9 See Navellier v. Sletten, 106 Cal.A pp.4th 

763, 131 Cal.Rptr.2d 201, 205 (Cal.Ct.App.2003) (applying 

language in California anti-SLAPP statute identical to that 

in section 27.006(a) and concluding that "[i]n deciding the 

question of potential merit, the trial court considers the 

pleadings and evidentiary submissions of both the plaintiff 

and the defendant"). IO 

9 

10 

In addition, construing the TCP A to preclude a 

trial court's consideration of affinnative defenses in 

determining motions to dismiss under section 27.003 

would contravene the statute's purpose-to protect free 

speech by enabling the early dismissal of meritless 

lawsuits that threaten that right. See Tex. Civ. Prac. & 

Rem.Code§ 27.003; Direct Commercial Funding, lnc. 

v. Beacon Hill Estates, LLC, No. 14-12-00896--CV, 

2013 Tex.App. LEXIS 1898, at *2, 2013 WL 407029 

(Tex.App.-Houston [14th Dist.] Jan. 24, 2013, order). 

We also observe that BCG could have requested 

limited discovery relevant to the motion and Kinney's 

affirmative defenses. See Tex. Civ. Prac. & Rem.Code§ 

27.006(b). 

*9 We next consider whether Kinney met his burden 

of proof by establishing the elements of the affirmative 

defense of res judicata. "To determine the preclusive 

effect of a judgment of another state's court, Texas courts 

apply the res judicata principles of that state." Highland 

Crusader Offshore Partners, L.P. v. Motient Corp., 281 

S.W.3d 237, 242 (Tex.App.-Dallas 2009, pet. denied) (citing 

Purcell v. Bellinger, 940 S. W.2d 599, 601 (Tex.1997)). 

Under California Jaw, res judicata applies if "(1) the 

decision in the prior proceeding is final and on the 

merits; (2) the present proceeding is on the same cause 

of action as the prior proceeding; and (3) the parties in 

the present proceeding or parties in privity with them 

were parties to the prior proceeding." Villacres v. ABM 

Indus. Inc., 189 Cal.App.4th 562, 117 Cal.Rptr.3d 398, 410 

(Cal.Ct.App.2010). The issue of res judicata is a question of 

law. See Cornette v. Department of Transp., 26 Cal.4th 63, 

109 Cal.Rptr.2d 1, 26 P.3d 332, 341 (Cal.2001) (" 'While 

all [the res judicata] issues may have factual predicates, 

they are peculiarly legal determinations.' " (quoting and 

distinguishing Windsor Square Homeowners Assn. v. Citation 

Homes, 54 Cal.App.4th 547, 62 Cal.Rptr.2d 818, 825 

(Cal.Ct.App.1997))). 

Kinney argues that all three elements of res judicata are met 

in this case. While BCG does not dispute that the California 

order is final or that there is privity between the plaintiffs in 

the California action and the plaintiffs here, it does contend 

that the California court's determination was not on the merits 

and that the two proceedings do not involve the same causes 

of action. Concerning whether the California order was a 

determination on the merits, BCG argues that the California 

court based its decision on procedural grounds only and its 

statements that the plaintiffs had not established a probability 

of prevailing on the merits and that Kinney's statements were 

privileged were mere dicta. As we have already noted, we 

do not agree with BCG's reading of the California court's 

ruling. Citing section 47 of the California Civil code, see 

Cal.Civ.Proc.Code § 47(c), the California court order stated: 

In addition to being time barred, 

plaintiffs have not provided sufficient 

evidence to establish a probability of 

prevailing on the merits. Defendants 

have presented evidence that there 

was already a good deal of online discussion regarding plaintiffs' 

businesses when defendant Kinney 

posted his remarks, which were 

based on his first hand knowledge. 

Kinney's statements of opinion are 

privileged communications amount 

[sic] interested parties. CC47(c). 

V\l'estlawNext" (c) 2014 Thomson Reuters. No claim to original U.S. Government Works. 7 
Kinney v. BCG Attorney Search, Inc., Not Reported in S.W.3d (2014) 

38 IER Cases 170, 42 Media L. Rep. 1812 

Considering this language, we conclude that the California 

court's holding was based on the alternative grounds of 

limitations and privilege. The privilege under section 47 

is "an 'absolute' privilege, and it bars all tort causes of 

action except a claim of malicious prosecution." Flatley v. 

Mauro, 39 Cal.4th 299, 46 Cal.Rptr.3d 606, 139 P.3d 2, 

16 (Cal.2006). Further, dismissal under the California antiSLAPP statute is essentially equivalent to dismissal on the 

merits on summary judgment. See Navellier, 131 Cal.Rptr.2d 

at 205; cf Boeken v. Philip Morris USA, Inc., 48 Cal.4th 788, 

108 Cal.Rptr.3d 806, 230 P.3d 342, 345 (Cal.2010) (for res 

judicata purposes, dismissal with prejudice is equivalent of 

final judgment on merits); Federal Home Loan Bank of San 

Francisco v. Countrywide Fin. Corp., 214 Cal.App.4th 1520, 

1528, 154 Cal.Rptr.3d 873 (Cal.Ct.App.2013) (dismissal with 

prejudice is determinative of issues). Therefore, we conclude 

that the California court's order was an adjudication on the 

merits. 11 

11 Although the California dismissal on the merits was as to 

Legal Authority only, and not to BCG, BCG admits that 

it is an affiliate of Legal Authority and does not dispute 

that it is in privity with Legal Authority. Therefore, for 

purposes of res judicata, the California order on the 

merits as to Legal Authority was also a determination on 

the merits as to BCG, and BCG is bound by the order. See 

Arias v. Superior Court, 46 Cal.4th 969, 95 Cal.Rptr.3d 

588, 209 P.3d 923, 932 (Cal.2009); Villacres v. ABM 

Indus. Inc., 189 Cal.App.4th 562, 117 Cal.Rptr.3d 398, 

410, 422 (Cal.Ct.App.2010). 

*10 Regarding whether the two proceedings involve the 

same causes of action, BCG argues that in the California 

action, it asserted only libel, unfair competition, and 

intentional interference with prospective economic relations 

claims-which were based on Kinney's false and defamatory 

statements-not the claims for breach of contract and 

breach of fiduciary duty-which are based on Kinney's 

true statements disclosing confidential information-or the 

statutory claims under the Lanham Act that it asserts in 

this case. However, California law is settled that " 'a prior 

final judgment on the merits not only settles issues that 

were actually litigated but also every issue that might have 

been raised and litigated in the first action.' " Countrywide 

Fin. Corp., 214 Cal.App.4th at 1529, 154 Cal.Rptr.3d 873 

(quoting Mattson v. City of Costa Mesa, 106 Cal.App.3d 

441, 164 Cal.Rptr. 913, 916 (Cal.Ct.App.1980)); see Bullock 

v. Philip Morris USA, Inc., 198 Cal.App.4th 543, 131 

Cal.Rptr.3d 382, 393 (Cal.Ct.App.2011). Ifa matter is within 

the scope of the prior action, related to the subject matter, and 

relevant to the issues, so that it could have been raised, the 

judgment is conclusive on it. Countrywide Fin. Corp., 214 

Cal.App.4th at 1529, 154 Cal.Rptr.3d 873 (citing Villacres, 

l I 7 Cal.Rptr.3d at 409). "The fact that different forms of 

relief are sought in the two lawsuits is irrelevant, for if the 

rule were otherwise, 'litigation finally would end only when 

a party ran out of counsel whose knowledge and imagination 

could conceive of different theories of relief based upon the 

same factual background.' " Villacres, 117 Cal.Rptr.3d at 

409 (quoting Interinsurance Exchange of the Auto. Club v. 

Superior Court, 209 Cal.App.3d 177, 257 Cal.Rptr. 37, 39 

(Cal.Ct.App.1989) (internal quotations and italics omitted)). 

"A party cannot by negligence or design withhold issues 

and litigate them in consecutive actions." Aerojet-General 

Corp. v. American Excess Ins. Co., 117 Cal.Rptr.2d 427, 

436 (Cal.Ct.App.2002). Res judicata should bar a claim if 

with diligence it could have been brought earlier. Allied Fire 

Protection v. Diede Constr., Inc., 127 Cal.App.4th 150, 25 

Cal.Rptr.3d 195, 200 (Cal.Ct.App.2005). 

We conclude that BCG could have raised the claims asserted 

in this case in the California action. Both the libel-based 

claims and the claims based on disclosure of confidential 

information arise from the same factual backgroundKinney's single internet post-and the current claims are 

within the scope of the California action, related to the 

subject matter and relevant to the issues. See Countrywide 

Fin. Corp., 214 Cal.App.4th at 1529, 154 Cal.Rptr.3d 873; 

Villacres, 117 Cal.Rptr.3d at 409. The only reason BCG 

offers for not asserting the contract and fiduciary duty claims 

in the California action is that it had not "discovered" the 

employment contract. However, the alleged contract was 

one BCG prepared, presented to Kinney, and subsequently 

located in its files. BCG had knowledge of the contract and, 

with diligence, could have asserted the claims based on it 

in the prior action. See Diede Constr., 25 Cal.Rptr.3d at 

200. Similarly, BCG's claim in this case for violations of the 

Lanham Act is based on the same alleged false statements 

upon which the libel-related claims in the California action 

were founded, it could have been asserted in the California 

case, and BCG may not withhold issues and litigate them 

later. See Countrywide Fin. Corp., 214 Cal.App.4th at 

1529, 154 Cal.Rptr.3d 873; Aerqjet-General Corp., 117 

Cal.Rptr.2d at 436. We therefore hold that BCG's claims are 

barred by res judicata and sustain Kinney's first issue. 

Sanctions 

WestlawNexr@ 2014 Thomson Reuters. No claim to original U.S. Government Works. 8 
Kinney v. BCG Attorney Search, Inc., Not Reported in S.W.3d (2014) 

38 IER Cases 170, 42 Media L. Rep. 1812 

*11 Because we conclude that BCG's claims are barred by 

res judicata, we need not reach the remainder of the parties' 

issues, with the exception of BCG's challenge to the trial 

court's award of sanctions under section 27.009 of the TCPA. 

See Tex.R.App. P. 47.1. 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." Tex. Civ. Prac. & Rem.Code § 

27 .009( a)(2). In its third issue on cross-appeal, BCG contends 

that the sanctions amount was excessive and the trial court 

abused its discretion because it awarded the amount of 

$75,000 without any guidance from a determination ofactual 

litigation costs and without providing a sufficient explanation 

for how it determined that amount. 

We generally review a trial court's award of sanctions for 

an abuse of discretion. See American Flood Research, Inc. 

v. Jones, 192 S.W.3d 581, 583 (Tex.2006) (per curiam). 

A trial court abuses its discretion if its ruling is arbitrary, 

unreasonable, or without reference to any guiding rules and 

principles. K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 

(Tex.2000) (per curiam). In determining whether the trial 

court abused its discretion, we must decide whether the 

sanctions were appropriate or just under a two-part inquiry. 

American Flood Research, 192 S.W.3d at 583. The appellate 

court must ensure that (1) there is a direct nexus between 

the improper conduct and the sanction imposed, id.; Low 

v. Henry, 221 S.W.3d 609, 614 (Tex.2007), and (2) less 

severe sanctions would not have been sufficient to promote 

compliance, American Flood Research, 192 S.W.3d at 583. 

We do not rely only on the trial court's findings but must 

independently review the entire record to determine if the trial 

court abused its discretion. Id. 

Because the order reflects that the trial court ordered sanctions 

pursuant to the TCP A, we review the order under the 

language of section 27.009. See Tex. Civ. & Prac. Rem.Code 

§ 27.009(a)(2); Low, 221 S.W.3d at 614 (reviewing order 

in light of chapter 10 of Civil Practices and Remedies 

Code because trial court's written order specifically ordered 

sanction pursuant to penalty provision of chapter 10); cf 

American Flood Research, 192 S.W.3d at 583-84 (where 

order imposing sanctions neither referred to nor tracked any 

language of specific rule, analysis governed by language of 

any rule cited in motion). Section 27.009(a)(2) requires the 

trial court to award sanctions if it dismisses a claim pursuant 

to section 27.003 and gives the trial court broad discretion to 

determine what amount is sufficient to deter the party from 

bringing similar actions in the future. See Tex. Civ. Prac. & 

Rem.Code § 27.009(a)(2). It does not expressly require the 

trial court to explain how it reached its determination. Cf id. 

§ 10.005 (in imposing sanction under chapter 10, court shall 

describe the sanctionable conduct and explain the basis for 

the sanction); Tex.R. Civ. P. l3 (good cause must be stated 

in sanction order). 

* 12 As we have already discussed, the record shows 

that BCG asserted claims that could have been asserted 

in the California suit. See Counflywide Fin. Corp., 214 

Cal.App.4th at 1529, 154 Cal.Rptr.3d 873; Villacres, 117 

Cal.Rptr.3d at 409. While the sanction imposed was large, 

"the amount [of the sanction] alone does not render the 

order unjust." Wal-Mart Stores v. Davis, 979 S.W.2d 30, 47 

(Tex. App .-Austin 1998, pet. denied). The record also shows 

a culmination of multiple actions, including an attempted 

arbitration, concerning claims for the same harm asserted 

under various legal theories and that one of the prior actions 

resulted in an award of attorney's fees against BCG in the 

amount of $45,000. See Boe/ken, 108 Cal.Rptr.3d 806, 230 

P.3d at 348; Villacres, 117 Cal.Rptr.3d at 409. Given the 

history of the litigation, the trial court could have reasonably 

determined that a lesser sanction would not have served 

the purpose of deterrence. See Stromberger v. Turley Law 

Firm, 315 S.W.3d 921, 924 (Tex.App.-Dallas 2010, no pet.) 

(sanction awarded based on party's conduct over two-year 

period). In light of the trial court's findings and the record 

before us, as well as the broad discretion afforded the trial 

court by section 27.009, we conclude that the sanction has a 

direct relationship to BCG's sanctionable conduct and that the 

trial court did not abuse its discretion in determining that a 

lesser sanction would have been insufficient to deter further 

actions by BCG. See Tex. Civ. Prac. & Rem.Code§ 27.009(a) 

(2); American Flood Research, 192 S.W.3d at 583. 

In arguing that the trial court abused its discretion because it 

awarded sanctions without reference to the actual litigation 

costs, BCG relies on Low, in which the supreme court held 

that a determination of the amount of a penalty under chapter 

10 of the Civil Practices and Remedies Code "should ... 

begin with an acknowledgment of the costs and fees incurred 

because of the sanctionable conduct[, which] provides a 

monetary guidepost of the impact of the conduct on the 

party seeking sanctions and the burdens on the court system." 

See 221 S.W.3d at 621. Although no court has addressed 

a sanctions award under the TCP A, because both chapter 

10 and the TCP A allow for sanctions to deter future 

sanctionable conduct, see Tex. Civ. Prac. & Rem.Code §§ 

V\lestlawNexr@ 2014 Thomson Reuters. No claim to original US Government Works. 9 
Kinney v. BCG Attorney Search, Inc., Not Reported in S.W.3d (2014) 

38 IER Cases 170, 42 Media L. Rep. 1812 ------

10.004(b), 27.009(a)(2), we assume without deciding that 

this guideline may reasonably apply to sanctions under the 

TCP A. However, the trial court expressly considered the 

prior litigation, and the record reflects that the California 

court awarded Kinney $45,000 in attorney's fees in that 

action. On the record before us, we conclude that there was 

sufficient evidence of the economic impact to Kinney of the 

sanctionable conduct of BCG over the course of litigation 

in two states to serve as a "guidepost" for the amount of 

the sanction. See Low, 221 S.W.3d at 621. Further, although 

unlike chapter 10 and rule 13, section 27.009 does not 

require the trial court to state the reasons for the sanction 

amount, the order nevertheless expressly recited the trial 

court's consideration of the prior litigation, which resulted 

in an award of attorney's fees against BCG, in deciding that 

a sanction of $75,000 was necessary to deter BCG from 

bringing similar actions in the future. Cf Low, 221 S.W.3d at 

620 (absence of explanation of how court determined amount 

when sanction is especially severe is inadequate). In light of 

the statutory language and the record before us, we cannot 

End of Document 

VVestlawNexr@ 2014 Thomson Reuters. No claim to 

conclude that the trial court abused its discretion in awarding 

$75,000 in sanctions against BCG. We overrule BCG's third 

issue on cross-appeal. 

CONCLUSION 

*13 Having concluded that we have jurisdiction over this 

appeal and cross-appeal, that BCG's claims are barred by res 

judicata, and that the trial court did not abuse its discretion in 

awarding sanctions in the amount of $75,000 against BCG, 

we reverse the trial court's order denying Kinney's motion to 

dismiss as to BCG's breach of contract and breach of fiduciary 

duty claims and render judgment dismissing those claims. We 

affirm the trial court's order in all other respects. 

Parallel Citations 

38 IER Cases 170, 42 Media L. Rep. 1812 

© 2014 Thomson Reuters. No claim to original U.S. Government Works. 

U.S Government Works. 10 
CAUSE NO. 2012-35162 

JOHN MOORE SERVICES, INC. and § 

JOHN MOORE RENOVATION, LLC § 

Plaintiffs, § 

~ § 

§ 

THE BETTER BUSINESS BUREAU OF § 

METROPOLITAN HOUSTON, INC. § 

IN THE DISTRICT COURT OF 

HARRIS COUNTY, TEXAS 

Defendant. § 269TH JUDICIAL DISTRICT COURT 

FINAL JUDGMENT 

On July 16, 2013, the First Court of Appeals entered judgment in the original 

interlocutory appeal of this cause in favor of the Defendant The Better Business Bureau of 

Metropolitan Houston, Inc. ("Houston BBB") finding reversible error in the trial court's order 

dated October 3, 2012. On February 14, 2014, the Texas Supreme Court denied Plaintiffs John 

Moore Services, Inc. and John Moore Renovation, LLC's (collectively "Plaintiffs" or "John 

Moore") petition for review. On April 4, 2014, the First Court of Appeals issued its mandate that 

this case should be dismissed and certified its judgment to this Court for observance. 

On July 21, 2014, the Houston BBB remaining claim for attorney's fees was tried to a 

jury. Plaintiffs appeared by their representative and by their attorneys of record and announced 

ready for trial. The Houston BBB appeared by its representative and by its attorneys of record 

announced ready for trial. A jury consisting of twelve qualified jurors were duly empaneled, and 

the jury reached a verdict on July 22, 2014. 

The Charge of the Court, Questions, Answers, and the Verdict Certificate are 

incorporated herein for all purposes. Consistent with the jury's findings, the Court renders 

judgment for the Houston BBB and against Plaintiffs for the following amounts: 

1 

3821737 
(i) $106,369.28 for representation in the trial court before and during Houston BBB's 

original interlocutory appeal, plus post-judgment interest thereon, at the statutory 

rate of 5% per annum until paid; 

(ii) $81,360.80 for representation in the Court of Appeals for the original 

interlocutory appeal, plus post-judgment interest thereon, at the statutory rate of 

5% per annum until paid; 

(iii) $37,982.08 for representation in the petition-for-review stage to the Supreme 

Court of Texas for the original interlocutory appeal, plus post-judgment interest 

thereon, at the statutory rate of 5% per annum until paid; and 

(iv) $24,289.28 for representation in the trial court after the original interlocutory 

appeal was decided, plus post-judgment interest thereon, at the statutory rate of 

5% per annum until paid. 

Having considered the foregoing, the Defendant's Motion for Entry of Final Judgment, 

including attachments, the Plaintiffs' response, including attachments, if any, Defendant's reply, 

if any, the admissible evidence, the arguments of counsel, the pleadings on file, the evidence 

presented at trial, the jury's verdict, and the judgment of the First Court of Appeals, the Court is 

of the opinion that the Motion should be GRANTED in its entirety and that Final Judgment be 

entered. It is therefore, 

ORDERED, ADJUDGED AND DECREED that Defendant The Better Business Bureau 

of Metropolitan Houston, Inc. 's Motion for Entry of Final Judgment and for Award of Court 

Costs, Expenses, and Sanctions against Plaintiffs is hereby GRANTED in its entirety. It is 

further; 

2 

3821737 
ORDERED, ADJUDGED AND DECREED that Plaintiffs claims are DISMISSED IN 

THEIR ENTIRETY WITH PREJUDICE, and that Plaintiffs TAKE NOTHING on their claims. 

It is further, 

ORDERED, ADJUDGED AND DECREED that Defendant The Better Business Bureau 

of Metropolitan Houston, Inc. have and recover from Plaintiffs, whom shall be jointly and 

severally liable for such amounts, as a reasonable fee for the necessary services of Houston 

BBB's attorneys in defending against John Moore's legal action: 

(i) $106,369.28 for representation in the trial court before and during Houston 

BBB's original interlocutory appeal, plus post-judgment interest thereon, at the 

statutory rate of 5% per annum until paid; 

(ii) $81,360.80 for representation in the Court of Appeals for the original 

interlocutory appeal, plus post-judgment interest thereon, at the statutory rate of 

5% per annum until paid; 

(iii) $37,982.08 for representation in the petition-for-review stage to the Supreme 

Court of Texas for the original interlocutory appeal, plus post-judgment interest 

thereon, at the statutory rate of 5% per annum until paid; and 

(iv) $24,289.28 for representation in the trial court after the original interlocutory 

appeal was decided, plus post-judgment interest thereon, at the statutory rate of 

5% per annum until paid, 

for a total of $250,001.44, plus post-judgment interest thereon, at the statutory rate of 5% per 

annum until paid, and which, based on the evidence admitted and considered in this cause, the 

Court finds to be just and equitable. It is further, 

3 

3821737 
ORDERED, ADJUDGED AND DECREED that Defendant The Better Business Bureau 

of Metropolitan Houston, Inc. have and recover from Plaintiffs, whom shall be jointly and 

severally liable for such amount, $6,237.77, plus post-judgment interest thereon, at the statutory 

rate of 5% per annum until paid, for the expenses incurred by the Houston BBB in defending 

against this legal action, an amount which, based on the evidence admitted and considered in this 

cause, the Court FINDS to be just and equitable. It is further, 

ORDERED, ADJUDGED AND DECREED that Defendant The Better Business Bureau 

of Metropolitan Houston, Inc. recover from Plaintiffs, whom shall be jointly and severally for 

such amounts, $415,000.00, plus post-judgment interest thereon, at the statutory rate of 5% per 

annum until paid, as sanctions under Texas Civil Practice and Remedies Code § 27.009(a)(2). 

The Court finds that Plaintiffs brought this lawsuit to deter or prevent Defendant from exercising 

its right of free speech, that Plaintiffs have brought a subsequent lawsuit (Cause No. 2013-

76215) for the same improper purpose. The Court takes judicial notice of all of the papers filed 

and proceedings in connection with Cause No. 2013-76215. In consideration of the above, 

including the award to Defendant of attorney's fees in this lawsuit, and all of the evidence 

admitted and considered in this cause, the Court finds a sanction against Plaintiffs under Section 

27.009(a)(2) in the amount of $415,000 is directly related to Plaintiffs' improper conduct and to 

be appropriate, sufficient, and necessary to deter Plaintiffs from bringing similar actions 

described by Chapter 27 of the Texas Civil Practice and Remedies Code, and that lesser 

sanctions would be insufficient. It is further, 

ORDERED, ADJUDGED AND DECREED that all costs of court expended or incurred 

in this cause are hereby taxed against Plaintiffs, whom shall be jointly and severally liable for 

4 

3821737 
such amount, plus post-judgment interest thereon, at the statutory rate of 5% per annum until 

paid. 

The Court orders execution to issue for this judgment. 

THIS IS A FINAL JUDGMENT. ALL RELIEF NOT EXPRESSLY GRANTED 

HEREIN IS DENIED. 

SIGNED this __ day of ______ ,, 2014. 

APPROVED AS TO FORM: 

PORTER HEDGES LLP 

By: Isl Jeffrey R. Elkin 

Jeffrey R. Elkin, SBN 06522180 

M. Harris Stamey, SBN 24060650 

1000 Main Street, 36th Floor 

Houston, Texas 77002-6336 

Telephone: (713) 226-6617 

Telecopier: (713) 226-6217 

je lkin@porterhedges.com 

mstamey@porterhedges.com 

ATTORNEYS FOR DEFENDANT 

3821737 

5 

JUDGE PRESIDING 
Exhibit K
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. § 

Defendants § 269th JUDICIAL DISTRICT 

CAUSE NO. 2013-76215 

JOHN MOORE SERVICES, INC. and § IN THE DISTRICT COURT OF

JOHN MOORE RENOVATION, LLC § 

Plaintiffs §

v. §

THE BETTER BUSINESS BUREAU OF § 

METROPOLITAN HOUSTON, INC.; THE § HARRIS COUNTY, TEXAS 

BETTER BUSINESS BUREAU OF §

METROPOLITAN HOUSTON § 

EDUCATION FOUNDATION; § 

DAN PARSONS; CHRIS CHURCH § 

CHURCH ENTERPRISES, INC. § 

A/K/A CHURCH SERVICES; GARY § 

MILLESON; RONALD N. MCMILLAN § 

D’ARTAGNAN BEBEL; MARK GOLDIE § 

CHARLIE HOLLIS; AND STEVEN § 

LUFBURROW §

Defendants § 269th JUDICIAL DISTRICT 

PLAINTIFFS’ MOTION TO CONSOLIDATE

AND

RESPONSE TO DEFENDANT’S MOTION FOR ENTRY OF JUDGMENT AND FOR AWARD OF 

COURT COSTS, EXPENSES, AND SANCTIONS

AND

PLAINTIFFS’ MOTION TO DISREGARD THE FINDINGS OF THE JURY IN PART

Defendants’ motion for entry judgment is a transparent attempt to make an end run 

around John Moore’s claims in Cause No. 2013-76215 (the “second lawsuit”). After 

preventing John Moore from amending its complaint in Cause No. 2012-35162 (the “first 

8/7/2014 2:15:38 PM

Chris Daniel - District Clerk Harris County

Envelope No. 2082603

By: GAYLE FULLER

Certified Document Number 61880272  Page 1 of 18
2

lawsuit”) to join new claims suggested by the documents produced in discovery, the 

Houston BBB now seeks to rush to judgment in the hope that a final decision rendered in 

the first lawsuit will defeat John Moore’s meritorious claims in the second lawsuit. It 

would have been preferable and efficient to bring the claims in a single suit, and they 

should not be resolved piecemeal to the potential detriment of John Moore. In the 

interests of fairness and efficiency, the claims in Cause No. 2013-76215 should be 

consolidated into Cause No. 2012-35162 and decided one time on their merits.

At the very least, the attorneys’ fees judgment (whether interlocutory or final) 

should not be rendered in the amount requested by Defendants. The evidence is legally 

insufficient to support the amount of fees awarded by the jury under the authority 

governing the recovery of attorneys fees. In the alternative, the Court should reduce the 

attorneys’ fees in the interests of justice and equity. Finally, no sanctions are appropriate 

in this case.

ARGUMENT

The two lawsuits should be consolidated into one, and if an interlocutory judgment

on attorneys’ fees is rendered, it should be for a reduced amount. And sanctions should 

not be awarded by any means.

I. THE SECOND LAWSUIT (CAUSE NO. 2013-76215) SHOULD BE CONSOLIDATED 

WITH THE FIRST LAWSUIT (CAUSE NO. 2012-35162).

The court of appeals’ mandate in the first lawsuit does not require this Court to 

render a final judgment of dismissal. It only requires the Court to conduct “further 

proceedings” that are consistent with its opinion. Ex. A (Mandate). As the claims made 

Certified Document Number 61880272  Page 2 of 18
3

in the second lawsuit were not addressed in any respect by the court of appeals, they may 

be pursued in the first lawsuit without coming into conflict with the court of appeals 

opinion, judgment or mandate. Consolidating the two Causes and hearing John Moore’s 

unadjudicated claims is not inconsistent with this mandate.

A. The Court May Consolidate Matters with Common Questions of Fact 

or Law.

Under the Texas Rules of Civil Procedure, the Court has the authority to 

consolidate these two matters.

When actions involving a common question of law or fact are pending 

before the court, it may order a joint hearing or trial of any or all the matters 

in issue in the actions; it may order all the actions consolidated; and it may 

make such orders concerning proceedings therein as may tend to avoid 

unnecessary costs or delays.

TEX. R. CIV. P. 174(a); see also HARRIS CTY. LOC. R. 3.2.3 (motion to consolidate is to 

be heard in the lower-numbered case). While the Court has discretion under this rule, it 

is not unbounded. In re Ethyl Corp., 975 S.W.2d 606, 610 (Tex. 1998). The Court must 

exercise its discretion “within limits created by the circumstances of the particular case.” 

Id. While it is obvious that these limits restrain a Court’s discretion to order 

consolidation, they apply equally to limit the Court’s discretion to refuse consolidation.

The claims in two causes share common issues of fact and law when “they all 

relate to substantially the same subject matter.” Owens-Corning Fiberglas Corp. v. 

Martin, 942 S.W.2d 712, 716 (Tex. App.—Dallas 1997, no writ). In Martin, the claims 

by eighteen different plaintiffs were consolidated for trial because they all alleged their 

harm was caused by the same product, were given the same (ineffectual) warning, were 

Certified Document Number 61880272  Page 3 of 18
4

represented by the same lawyers, and were subject to the same law. Id. The harm to 

each plaintiff was different. Id. The court of appeals held that the claims were properly 

consolidated. Id. at 720.

The purpose of the consolidation rule is to “further convenience, to avoid 

prejudice, and to promote the ends of justice.” In re Ethyl Corp., 975 S.W.2d at 610. 

Indeed, consolidation must be ordered when failure to do so would result in injustice. 

See id. (“the paramount objective of preventing injustice obtains whether the question is 

one of separate trials or of consolidation”). It may not be ordered when consolidation 

would cause confusion or prejudice and render the jury unable to find the facts based on 

the evidence. In re Van Waters & Rogers, Inc., 145 S.W.3d 203, 207 (Tex. 2004). The 

Houston BBB cannot simply rely on dissimilarities between the cases, it must show that a 

consolidation “will materially affect the fairness of a trial.” Id.at 208. No confusion or 

prejudice will result from this consolidation, but an injustice will result in this case if 

consolidation is not ordered.

B. The Common Questions of Fact in These Cases Make Consolidation 

Permissible; the Injustice to John Moore Makes It Mandatory.

Both of these cases involve the same events; the same conduct by the Houston 

BBB and its agents; the same harm to John Moore. There are obvious and ubiquitous 

questions of fact in common. Consolidation is proper.

1. The two cases involve common questions of fact.

The Houston Court of Appeals considered a somewhat similar case twenty years 

ago. Lone Star Ford v. McCormick, 838 S.W.2d 734 (Tex. App.—Houston [1st Dist.] 

Certified Document Number 61880272  Page 4 of 18
5

1992, writ denied). In that case two employees sued their employer for breach of their 

employment contracts and tortious interference. Id. at 737. Thus, the claims involved 

two separate legal breaches, but they were based on the same course of conduct by the 

employer that was directed toward the two employees. Id. Therefore, the trial court 

consolidated their claims and rendered judgment after a jury trial. Id. The defendant 

challenged the consolidation. The appellate court looked at the two plaintiffs’ claims to 

determine whether they concerned “the same or substantially the same transaction, 

occurrence, subject matter, or question.” Id at 738. As they did, the court of appeals 

upheld the order consolidating the two causes.

First the Houston BBB has judicially admitted that Cause No. 2013-76215 

concerns the same transaction, occurrence, subject matter, or question. 

Despite John Moore’s pleading to the contrary (Petition at ¶ 18), this 

lawsuit is nothing more than a continuation of the First Legal Action. . . . 

John Moore has merely taken the same set of background facts and 

circumstances that were adjudicated in the First Legal Action and tried to 

recast them into different, non-defamation causes of action.

. . . 

John Moore cannot avoid the application of Chapter 27 of the Court of 

Appeals’ decision by simply filing a separate lawsuit that does nothing 

more than try to recast the same background events and circumstances

into different causes of action than those asserted in [the] First Legal 

Action.

Ex. B at 9, 15 (Motion to Dismiss, Cause No. 2013-76215) (emphasis added). An 

assertion of fact in a live pleading that is not pleaded in the alternative and that is 

deliberate, clear, and unequivocal is a formal judicial admission. Holy Cross Church of 

God in Christ v. Wolf, 44 S.W.3d 562, 568 (Tex. 2001); Houston First Am. Sav. v. 

Certified Document Number 61880272  Page 5 of 18
6

Musick, 650 S.W.2d 764, 767 (Tex. 1983). The effect of a judicial admission is 

conclusive. Mendoza v. Fidelity & Guar. Ins. Underwriters, Inc., 606 S.W.2d 692, 694 

(Tex. 1980). The Houston BBB is barred from disputing that the two cases involve the 

same transactions, occurrences, and subject matter. Id. Therefore, consolidation is 

proper.

Second, even without the judicial admission, there are ample examples that the 

two cases share common questions of fact. Compare Ex. C at 2-10 (Original Petition, 

Cause No. 2012-35162) with Ex. D at 5-14, 15-23 (First Amended Original Petition, 

Cause No. 2013-76215). For example, in both cases, John Moore’s claims are based on 

the damages suffered when the defendants’ conduct (1) caused it to lose business 

beginning no later than April 2012, resulting in lost sales of almost $7 million; (2) caused 

it to expend $47,000 to alter the graphics on its fleet of service trucks; and (3) caused it to 

prematurely lose the benefit of a $1.1 million investment in custom graphics on those 

service trucks. See Resp. to Mot. to Dismiss at 53 (Cause No. 2013-76215). Thus, the 

two causes involve the same damages.

Furthermore, in both cases, John Moore alleges that the defendants concerted 

conduct was intended to harm John Moore for the benefit of other Houston BBB 

members. This harmful conduct included:

 the cancelation of Houston BBB programs that benefited John Moore such 

as the advertising cooperative;

 an attack on John Moore’s independent advertising campaigns;

Certified Document Number 61880272  Page 6 of 18
7

 manipulation of the Houston BBB business rating system to give John 

Moore an artificially low rating;

 the orchestration of votes on the Membership Committee and the Board of 

Directors to force John Moore to resign from the Houston BBB;

 a campaign to prevent John Moore from becoming a member of any other 

Better Business Bureau; and

 bringing an unmeritorious trademark infringement lawsuit against John 

Moore in federal court.

See Response to Motion to Dismiss at 2-10 (Cause No. 2013-76215); see Ex. C at 2-10; 

Ex. D at 5-14, 15-23.

2. An injustice would be done if the cases are not consolidated.

When this Court denied the Houston BBB’s motion to dismiss, it recognized that 

John Moore’s claims in the second lawsuit are viable, i.e., they meet the evidentiary test 

set out in Chapter 27 of the Civil Practice and Remedies Code. The Houston BBB seeks 

to avoid liability on these viable claims by asserting legally suspect res judicata or 

collateral estoppel arguments following an entry of judgment in the first lawsuit. See Ex. 

B at 9, 15. At the very least, these arguments will cause John Moore to incur unnecessary 

expense and delay the resolution of those claims. At worst, these claims will prevent 

John Moore from asserting meritorious claims concerning a very real injury. 

As the Court will recall, John Moore did not desire to multiply litigation by filing 

a second suit. After discovery had begun in the first lawsuit, John Moore became aware 

of new claims that it had not asserted in its original petition. It attempted to amend its 

Certified Document Number 61880272  Page 7 of 18
8

pleadings to add the claims for restraint of trade, breach of contract, and deceptive trade 

practices. But the Houston BBB objected and argued that a later-enacted statute applied 

retroactively to stay all proceedings in the lawsuit. The Court struck the amended 

petition.

Because limitations had not yet run, John Moore preserved these new claims by 

filing a second lawsuit, Cause No. 2013-76215. These claims should not be barred by a 

resolution of the first lawsuit, but there are no certainties in this world. John Moore’s 

position is that a final judgment in the first lawsuit will not bar its claims in the second 

suit (1) because no judgment existed at the time the claims were asserted that would 

prevent them from being filed, see Citizens Ins. v. Daccach, 217 S.W.3d 430, 449 (Tex. 

2007); (2) because of the stay asserted by the Houston BBB, the claims could not be 

joined in that case, see Finger v. Southern Refrigeration Servs., 881 S.W.2d 890, 895-96 

(Tex. App.—Houston [1st Dist.] 1994, writ denied); and (3) because a decision in one 

part of a lawsuit that was divided into separate parts has no res judicata or collateral 

estoppel effect on the other part. See Van Dyke v. Boswell, O’Toole, Davis & Pickering, 

697 S.W.2d 381, 384 (Tex. 1985). Thus, John Moore does not believe that res judicata

would apply.

However, nothing will prevent the Houston BBB from asserting the defense if the 

cases are kept separate and a final judgment is rendered in the first lawsuit. John Moore 

will, at the very least, be required to defend itself against the argument that its claims are 

precluded. At worst, if John Moore were to lose the argument, then its meritorious 

claims in the second lawsuit will never be determined on their merits. Even without the 

Certified Document Number 61880272  Page 8 of 18
9

effects of res judicata, a separate judgment in the first lawsuit will ultimately result in 

two separate appeals, increasing the cost to both parties, the burden to the courts, and the 

inefficiency of the process. Any of these situations would cause an injustice to John 

Moore and prejudice it in the pursuit of its claims.

On the other hand, the need to contest the issue of res judicata at all would be 

eliminated by consolidating the two cases, thereby avoiding prejudice to any party. This 

would also result in a single appeal, further increasing efficiency. Once consolidated, any 

judgment on the amount of attorneys’ fees would be interlocutory and could not have res 

judicata effect on John Moore’s claims made in the second suit, and all of these matters 

could be appealed at one time.

John Moore’s claims in Cause No. 2013-76215 share a common nucleus of fact 

with the claims in Cause No. 2012-35162. Therefore, consolidation is within the 

discretion of this Court. The Houston BBB’s naked attempt to bar John Moore’s claims 

in the second lawsuit (which this Court has determined to be supported by sufficient 

evidence under Chapter 27) would cause an injustice by preventing John Moore from a 

resolution of its claims on the merits. The Court should order a consolidation.

II. IF AN INTERLOCUTORY JUDGMENT IS RENDERED TODAY, IT SHOULD BE FOR A 

REDUCED AMOUNT.

Should the Court consolidate the two actions as argued above, a judgment on the 

attorneys’ fees issue would be premature and unnecessary. However, should the Court 

elect to sign an interlocutory judgment on the attorneys’ fees issue, the judgment should 

be for far less than the amount found by the jury.

Certified Document Number 61880272  Page 9 of 18
10

A. There Is No Legally Sufficient Evidence to Support the Full Amount of 

the Jury’s Award.

The Anti-SLAPP statute mandates the award of “reasonable” attorneys’ fees in an 

amount that satisfies “justice and equity.” TEX. CIV. PRAC. & REM. CODE § 27.009(a)(1). 

Texas jurisprudence has always considered reasonableness and necessity together. See,

e.g., El Apple I, Ltd. v. Oivas, 370 S.W.3d 757, 762-63 (Tex. 2012) (considering 

necessity of the fees as a component of reasonableness). Therefore, the Houston BBB 

must establish that the fees it is requesting are both reasonable and necessary.

For the Court to conduct a meaningful review, the Houston BBB “must provide 

sufficient details of the work performed.” Id. at 764. This includes, “at a minimum, 

documentation of the services performed, who performed them and at what hourly rate, 

when they were performed, and how much time the work required.” Id. 

The El Apple requirements have been elaborated upon to require “evidence of the 

time spent on specific tasks.” Long v. Griffin, __ S.W.3d __, 2014 WL 1643271, at *3 

(Tex. April 25, 2014). When a party uses bulk billing, it is impossible to determine 

whether the time spent on a specific task was reasonable and necessary. For example, the 

second entry in the Houston BBB’s invoices illustrate the problem:

Continue detailed review and analysis of Original Petition; research current 

Anti-SLAPP litigation information; receive and review correspondence 

from L. Hood requesting removal of all references to John Moore from 

BBB web-site.

Ex. F at p.1. This time entry indicates that 2.2 hours were spent on these issues, but there 

is no way to determine how that time is broken down. Did the timekeeper spend 2.0 

hours reviewing correspondence and the balance on the petition and research? Was the 

Certified Document Number 61880272  Page 10 of 18
11

bulk of the time spent on research? There is no way to know. Therefore, there is no way 

to determine if the time was well-spent or wasted.

Similarly, when a party over-redacts the time entries, the result is gibberish that 

does not guide the fact-finder. The first entry on the second page of Invoice # 400271 is 

an example of this problem:

Telephone conference with [BLANK] regarding [BLANK] motions to 

dismiss; revise [BLANK] in support of motion to dismiss, revise motion; 

communications to and from Ms. Christensen regarding [BLANK].

Ex. F at p.7. This entry actually combines the bulk billing problem with the redaction 

problem. There is no way to determine what the telephone conference was regarding, 

what was revised, or what the communications with Ms. Christensen related to. How can 

a factfinder determine whether these tasks were reasonable and necessary without 

knowing what they are? They cannot.

Houston BBB’s evidence is inadequate and does not meet the El Apple

requirements to the extent it uses bulk billing and does not satisfy the Long v. Griffin

standard to the extent it does not specify the particular tasks. Block billing and heavy 

redactions do not permit the fact finder even to break the hours spent down into general 

categories such as discovery, research, pleadings, witnesses, etc. Even if this kind of 

general breakdown were possible, it is inadequate under Supreme Court precedent. See 

El Apple, 370 S.W.3d at 763 (holding that such categorization “provides none of the 

specificity needed for the trial court to make a meaningful lodestar determination.”). 

The billing invoices provided by Houston BBB in support of its award for 

attorneys’ fees include hundreds of time entries. Ex. F. As indicated by the examples 

Certified Document Number 61880272  Page 11 of 18
12

above, not all of the entries identify the time spent on a specific task as required by the 

Texas Supreme Court because they contain block billing and/or redactions that obscure 

the nature of the work performed. Of the hundreds of time entries, only 158 avoid 

combining multiple tasks and actions into a single time entry (i.e., block billing) or avoid 

redactions that obscure one or more of the tasks that are described. Ex. E (Affidavit of 

Amelia Irving). To the extent block billing and heavy redactions make it impossible to 

determine whether the time was well-spent or wasted, the entries are legally insufficient 

evidence.

Attached to this response is a copy of Defendants Exhibit 3 with all of the legally 

insufficient time entries struck through. Ex. F. These entries are legally insufficient 

evidence, and the fact finder could not rely on them to make a finding as to the 

reasonable and necessary attorney’s fees. El Apple I, Ltd., 370 S.W.3d at 762-63; Long, 

2014 WL 1643271, at *3. Therefore, there should be no attorneys’ fees awarded for 

these amounts. The remaining entries satisfy the El Apple and Long standards and are 

arguably legally sufficient to support an award. 

The total dollar amount of the entries that are not fatally defective is $72,413.50. 

Ex. G. Because the invoices as a whole are insufficient to support a finding that all of the 

fees included therein are reasonable and necessary, the award of attorneys’ fees should be 

reduced to a maximum of $72,413.50.

Certified Document Number 61880272  Page 12 of 18
13

B. The Attorneys’ Fees Should Be Reduced in the Interest of Justice and 

Equity.

When Moore filed its initial lawsuit on June 18, 2012, the Anti-SLAPP statute had 

been on the books for one year. See TEX. CIV. PRAC. & REM. CODE § 27.001 (effective 

June 17, 2011). In determining the appropriate causes of action to assert in the lawsuit, 

John Moore understandably concluded that the statute did not apply to its claims because 

this case involved a business relationship, and the statute explicitly stated that its purpose 

was related to “participation in government.” TEX. CIV. PRAC. & REM. CODE § 27.002. 

The statute, with its protection of participation in government, appeared to apply in the 

governmental context where citizens required protection from illegal suppression of such 

rights by the filing of strategic lawsuits, not to a commercial dispute in which John 

Moore is able to show a real injury arising out of the Houston BBB’s conduct.

Virtually none of the questions raised by the statute had been definitively 

addressed by the courts at that time. There was simply no authority. Plaintiffs, such as 

John Moore, were blindsided by the broad scope of actions and activities found to be 

protected under the statute as the case law developed. Indeed, John Moore’s suit and the 

related appeal was a test case decided during this developmental phase of the law. 

As noted, John Moore conscientiously identified the causes of action which were 

appropriate given the underlying dispute. The suit appeared to be one involving purely 

commercial interests which was specifically exempted from the application of the statute. 

TEX. CIV. PRAC. & REM. CODE § 27.010(b). When John Moore filed its lawsuit, it was 

impossible to envision the tortuous path that this case would ultimately take, much of it 

Certified Document Number 61880272  Page 13 of 18
14

caused by the Houston BBB’s intransigence and unwillingness to take responsibility for 

the economic harm that its actions were causing for John Moore.

Given the newness of the statute, the unaddressed issues present at the time Moore 

filed its lawsuit, and the expansion of the activity covered under the statute as the case 

law progressed, Moore requests that the Court reduce the attorneys’ fees in the interest of 

justice and equity. Moore requests that the award of attorneys’ fees be reduced to a 

maximum of $72,413.50 in the interest of justice and equity.

C. Sanctions Are Not Appropriate Here.

Under the Anti-SLAPP statute, the trial court has discretion to determine what 

amount is sufficient to deter the party from bringing similar actions in the future. TEX.

CIV. PRAC. & REM. CODE § 27.009(a)(2). John Moore, however, has not engaged in any 

course of action which needs to be deterred under the statute. The Houston BBB

primarily relies on Kinney v. BCG Attorney Search, Inc. to support its contention that 

sanctions are appropriate in this matter. 2014 WL 1432012 at *12 (Tex. App.—Austin, 

April 11, 2014, pet. filed). The Houston BBB’s reliance is misplaced because John 

Moore has not engaged in the types of activity which were at issue in Kinney. John

Moore has not brought a second lawsuit that violates the Anti-SLAPP statute. Id. at *2. 

John Moore has not brought a second lawsuit that asserts non-viable claims. Id. at *2.

John Moore has no history of continually bringing actions which assert nonviable 

claims for conduct protected by the Anti-SLAPP statute. See Stromberger v. Turley Law 

Firm, 315 S.W.3d 921, 924 (Tex. App.—Dallas 2010, no pet.) (finding that sanctions 

were appropriate based on a continued course of conduct over a two-year period). The 

Certified Document Number 61880272  Page 14 of 18
15

initial lawsuit filed by John Moore arguably asserted viable causes of action, particularly 

in light of the undeveloped state of the Anti-SLAPP statute. It was not John Moore’s 

intention to bring multiple lawsuits. John Moore would have not filed a second suit were 

it not for The Houston BBB’s actions.

Following the First Court of Appeals’ decision, John Moore filed an amended 

petition in the first lawsuit which asserted causes of actions suggested by evidence 

gathered during discovery. On The Houston BBB’s motion, the court struck the amended 

petition. Thus, The Houston BBB’s actions forced Moore to assert these causes of action 

in a separate suit. It is self-serving for the Houston BBB to now complain that John 

Moore is a vexatious litigant, having forced John Moore into this position. In any event, 

this Court has recognized that the causes of action asserted in the second lawsuit are 

viable by virtue of its denial of The Houston BBB’s Motion to Dismiss in that lawsuit.

Sanctions are also inappropriate for all of the reasons expressed in the previous 

section requesting a reduction in the amount of attorneys’ fees in the interests of justice 

and equity.

As noted above, the trial court has broad discretion to determine what amount is 

sufficient to deter the party from bringing similar actions. TEX. CIV. PRAC. & REM. CODE

§ 27.009(a)(2). John Moore’s conduct does not approach the type of activity where 

sanctions might be appropriate. The facts demonstrate that deterrence should not be a 

concern in John Moore’s case, and that sanctions are unnecessary.

Certified Document Number 61880272  Page 15 of 18
16

D. There Is No Legally Sufficient Evidence to Support an Award of 

Expenses and the Houston BBB Waived the Issue by Failing to Obtain 

a Finding from the Jury.

The Houston BBB did not request and did not obtain a finding as to the amount of 

“other expenses” incurred in this matter. TEX. CIV. PRAC. & REM. CODE § 27.009(a)(1) 

(allowing recovery of “other expenses”). When a party has the burden of proof on an 

issue, the party must submit a requested instruction to preserve the right to seek a 

recovery on the issue. W.O. Bankston Nissan, Inc. v. Walters ̧ 754 S.W.2d 127, 128 

(Tex. 1988). The Houston BBB has the burden of proof to establish the amount of “other 

expenses” to be recovered under section 27.009(a)(1). Therefore, the Houston BBB has 

waived the determination of this issue. Id.

Even if the Houston BBB has not waived the question of the proper amount of

“other expenses” to be awarded, it failed to present legally sufficient evidence in support 

of a finding. A successful party is only entitled to taxable costs. TEX. R. CIV. P. 151. 

First, it has not yet been determined whether the Houston BBB will be completely 

successful in this litigation such that it would be entitled to an award of costs because 

John Moore has claims remaining against the Houston BBB.

Second, it cannot be determined from the Houston BBB’s evidence whether the 

costs and expenses it seeks are taxable. The only evidence of expenses is the Schedule 

admitted as Defendants’ Exhibit 4. The Schedule lists the date, invoice number, and 

amount of various expenses and costs, but nothing indicates that the costs and expenses 

are taxable costs or expenses. TEX. CIV. PRAC. & REM. CODE § 37.007. Therefore, there 

is legally insufficient evidence to support an award of expenses.

Certified Document Number 61880272  Page 16 of 18
17

PRAYER

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

and John Moore Renovation, LLC respectfully request that this Court consolidate Cause 

No. 2013-76215 with this Cause and set the remaining claims in the consolidated cases 

for a jury trial after an appropriate discovery period. Furthermore, Plaintiffs request that 

this Court, if it renders a judgment (whether interlocutory or final) for attorneys fees, 

expenses, and costs, disregard the findings of the jury and award fees only in a reduced 

amount (to a maximum of $72,413.50); deny or defer the question of costs and expenses;

and deny the request for sanctions entirely. Plaintiffs also request all such other and 

further relief to which they may be justly entitled at law or in equity.

Respectfully submitted,

JOHNSON, TRENT, WEST & TAYLOR, LLP

By: /s/ Lori Hood

Lori Hood

Texas Bar No. 09943430

Brian P. Johnson

Texas Bar No. 10685700

Tamara Madden

Texas Bar No. 00783720

919 Milam Street, Suite 1700

Houston, Texas 77002

(713) 222-2323

(713) 222-2226 (facsimile)

lhood@johnsontrent.com

bjohnson@johnsontrent.com

tmadden@johnsontrent.com

Certified Document Number 61880272  Page 17 of 18
18

CERTIFICATE OF CONFERENCE

On this, the 7th day of August, 2014, the undersigned contacted Harris Stamey, 

counsel for the Better Business Bureau of Metropolitan Houston and was informed that the 

Defendant opposed this motion.

/s/ Douglas Pritchett, Jr.

Douglas Pritchett, Jr.

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 7th day of August, 2014.

Jeffrey R. Elkin Via ECF

M. Harris Stamey

Porter Hedges, LLP

1000 Main Street, 36th Floor

Houston, Texas 77002

/s/ Lori Hood

LORI HOOD

346439.1-08052014

Certified Document Number 61880272  Page 18 of 18
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

HARRIS COUNTY, TEXAS

Chris Daniel, DISTRICT CLERK

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

Certified Document Number: 61880272 Total Pages: 18

this April 20, 2015
Exhibit L
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. §

Defendants § 269th JUDICIAL DISTRICT

NOTICE OF HEARING

Please take note that a hearing is to be held on Friday, August 8, 2014 at 11:00 

a.m. in the above-styled case in open court before the 269th Judicial District Court on the 

13th Floor of the Harris County Civil Courthouse to consider Defendants’ Motion to 

Consolidate and Motion to Disregard the Findings of the Jury in Part.

Respectfully submitted,

JOHNSON, TRENT, WEST & TAYLOR, LLP

By: /s/ Lori Hood

Lori Hood

Texas Bar No. 09943430

Brian P. Johnson

Texas Bar No. 10685700

Tamara Madden

Texas Bar No. 00783720

919 Milam Street, Suite 1700

Houston, Texas 77002

(713) 222-2323

(713) 222-2226 (facsimile)

lhood@johnsontrent.com

bjohnson@johnsontrent.com

tmadden@johnsontrent.com

8/7/2014 2:15:38 PM

Chris Daniel - District Clerk

Harris County

Envelope No: 2082603

By: FULLER, LESLIE G

Certified Document Number: 61880303 - Page 1 of 2
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 7th day of August, 2014.

Jeffrey R. Elkin Via ECF

M. Harris Stamey

Porter Hedges, LLP

1000 Main Street, 36th Floor

Houston, Texas 77002

/s/ Lori Hood

LORI HOOD

346927.1-08072014

Certified Document Number: 61880303 - Page 2 of 2
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

HARRIS COUNTY, TEXAS

Chris Daniel, DISTRICT CLERK

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

Certified Document Number: 61880303 Total Pages: 2

this April 20, 2015
Exhibit M
CertifiedDocumentNumber:61943380-Page1of7

·" FILED 3n/2014 4:44:32 PM 

Chrl• Donia! Dl11trlot Clork 

Chrts Daniel • District Cieri( 

Harris County 

Envelope No: 662518 

AUG 0 8 2014 By: FULLER, LESLIE G 

Tlme:;_....,..-:-=-=~~­ l'f1rr11 County, T1xaa 

~Y.~.~-----~D~•~pu~ty:'!"'"""----~ CAUSE NO. 2013-76215 

JOHN MOORE SERVICES, INC. and 

JOHN MOORE RENOVATION, LLC 

Plaintiffs, 

v. 

§ 

§ 

§ 

§ 

§ 

THE BETTER BUSINESS BUREAU OF § 

METROPOLITAN HOUSTON, INC.; THE § 

BETTER BUSINESS BUREAU OF § 

METROPOLITAN HOUSTON § 

EDUCATION FOUNDATION; DAN § 

PARSONS; CHRIS CHURCH; CHURCH § 

ENTERPRISES, INC. A/KJA CHURCH § 

SERVICES; GARY MILLESON; § 

RONALDN.MCMILLAN; § 

D'ART AGNAN HEBEL; MARK GOLDIE; § 

CHARLIE HOLLIS; and STEVEN § 

LUFBURROW § 

Defendants. . § 

IN THE DISTRICT COURT OF 

HARRIS COUNTY, TEXAS 

269TR JUDICIAL DISTRICT COURT 

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS 

On this day came on to be considered Defendants The Better Business Bureau of 

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

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

McMillan, Mark Goldie, Charlie Hollis, and Steven Lufburrow's Motion to Dismiss the abovereferenced case in its entirety ("Motion")~e Court, having reviewed the Motion, any response 

+?'7 

) l A . 

and reply thereto, the evidence presented, the pleadings on file, the arguments of counsel, ana.Jllie.----:---...... 

"°' tl '\-{μ,. applicable law, finds the Motion well taken and should be GRANTED in its entire ltis ~.h 

~~h~.~ 

therefore, ~~ 

ORDERED that, pursuant to Section 27.003 of the Texas Civil Practice and Remedies 

Code, all claims and causes of action brought by Plaintiffs John Moore Services, Inc. and John 

Moore Renovation, LLC are hereby DISMISSED with prejudice against refiling. It is further, 
CertifiedDocumentNumber:61943380-Page2of7

Remedies Code, the Defendants The Better Business Bureau of Metropolitan Houston, Inc., The 

Better Business Bureau of Metropolitan Houston Education Foundation, Dan Parsons, Chris 

Church, Church Enterprises, Inc., Gary Milleson, Ronald N. McMillan, Mark Goldie, Charlie 

Hollis, and Steven Lufburrow shall recover from Plaintiffs John Moore Services, Inc. and John 

Moore Renovation, LLC their court costs, reasonable attorneys' fees, and 

ORDERED that, pursuant to Section 27 .009(a)(2) of the Texas Civil Practice and 

Remedies Code, monetary sanctions are imposed against Plaintiffs John Moore Services, Inc. 

and John Moore Renovation, LLC to be paid to Defendants The Better Business Bureau of 

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

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

McMillan, Mark Goldie, Charlie Hollis, and Steven Lufburrow. 

SIGNEDtbis~dayofA.s<>.fl; 2014. 

~ 

n /T) (. /"> 

2 3644753 
CertifiedDocumentNumber:61943380-Page3of7

CAUSE NO. 2012-35162 

JOHN MOORE SERVICES, INC. and § 

JOHN MOORE RENOVATION, LLC § 

Plaintiffs, § 

V. § 

§ 

THE BETTER BUSINESS BUREAU OF § 

METROPOLITAN HOUSTON, INC. § 

IN THE DISTRICT COURT OF 

HARRIS COUNTY, TEXAS 

Defendant. § 269rn JUDICIAL DISTRICT COURT 

FINAL JUDGMENT 

On July 16, 2013, the First Court of Appeals entered judgment in the original 

dated October 3, 2012. On February 14, 2014, the Texas Supreme Court denied Plaintiffs John 

Moore Services, Inc. and John Moore Renovation, LLC"s (collectively "Plaintiffs'' or "John 

Moore'') petition for review. _?n April 4, 2014, the First Court of Appeals issued its mandat~ 

~s ca~lfttf~ and certified its judgment to this Court for observance. 

On July 21, 2014, the Houston BBB remaining claim for attorney's fees was tried to a 

jury. Plaintiffs appeared by their representative and by their attorneys of record and announced 

ready for trial. The Houston BBB appeared by its representative and by its attorneys of record 

announced ready for trial. A jury consisting of twelve qualified jurors were duly empaneled, and 

the jury reached a verdict on July 22, 2014. 

The Charge of the Court. Questions, Answers, and the Verdict Certificate are 

incorporated herein for all purposes. Consistent with the jury's findings, the Court renders 

judgment for the Houston BBB and against Plaintiffs for the following amounts: 

~;b,+A 

3821737 
CertifiedDocumentNumber:61943380-Page4of7

(i) $106,369.28 for representation in the trial court before and during Houston BBB· s 

original interlocutory appeal, plus post-judgment interest thereon, at the statutory 

rate of 5% per annum until paid; 

(ii) $81,360.80 for representation in the Court of Appeals for the original 

interlocutory appeal, plus post-judgment interest thereon, at the statutory rate of 

5% per annum until paid; 

(iii) $37,982.08 for representation in the petition-for-review stage to the Supreme 

Court of Texas for the original interlocutory appeal, plus post-judgment interest 

thereon, at the statutory rate of 5% per annum until paid; and 

(iv) $24,289.28 for representation in the trial court after the original interlocutory 

appeal was decided, plus post-judgment interest thereon, at the statutory rate of 

5% per annum until paid. 

Having considered the foregoing, the Defendant's Motion for Entry of Final Judgment, 

including attachments. the Plaintiffs' response, including attachments, if any, Defendant's reply, 

if any, the admissible evidence, the arguments of counsel, the pleadings on file, the evidence 

presented at trial, the jury·s verdict, and the judgment of the First Court of Appeals, the Court is 

of the opinion that the Motion should be GRANTED in ~and that Final Judgment be 

entered. It is therefore, ~ 

ORDERED, ADJUDGED AND DECREED that Defendant The Better Business Bureau 

of Metropolitan Houston, Inc.'s Motion for Entry of Final Judgment and for Award~-u 

further; 

2 

3821737 
CertifiedDocumentNumber:61943380-Page5of7

ORDERED, ADJUDGED AND DECREED that Plaintiffs claims are DISMISSED IN 

THEIR ENTIRETY WITH PREJUDICE, and that Plaintiffs TAKE NOTHING on their claims. 

It is further, 

ORDERED, ADJUDGED AND DECREED that Defendant The Better Business Bureau 

of Metropolitan Houston, Inc. have and recover from Plaintiffs, whom shall be jointly and 

severally liable for such amounts, as a reasonable fee for the necessary services of Houston 

BBB's attorneys in defending against John Moore's legal action: 

(i) $106,369.28 for representation in the trial court before and during Houston 

BBB's original interlocutory appeal, plus post-judgment interest thereon, at the 

statutory rate of 5% per annum until paid; 

(ii) $81,360.80 for representation in the Court of Appeals for the original 

interlocutory appeal, plus post-judgment interest thereon, at the statutory rate of 

5% per annum until paid; 

(iii) $37 ,982.08 for representation m the petition-for-review stage to the Supreme 

Court of Texas for the original interlocutory appeal, plus post-judgment interest 

thereon, at the statutory rate of 5% per annum until paid; and 

(iv) $24,289.28 for representation in the trial court after the original interlocutory 

appeal was decided, plus post-judgment interest thereon, at the statutory rate of 

5% per annum until paid, 

for a total of $250,001.44, plus post-judgment interest thereon, at the statutory rate of 5% per 

annum until paid, and which, based on the evidence admitted and considered in this cause, the 

Court finds to be just and equitable. It is further, 

3 

3821737 
CertifiedDocumentNumber:61943380-Page6of7

'· ORDERED, ADJUDGED AND DECREED that Defendant The Better Business Bureau 

of Metropolitan Houston, Inc. have and recover from Plain · fs, whom shall be jointly and 

ate~ annum until 

against this legal acf , an amount whi , ased on the evidence a itted and considered in this 

cause, the Court FINDS to be just and equitable. It is further, 

ORDERED, ADJUDGED AND DECREED that Defendant The Better Business Bureau 

annum until paid, as sanctions under Texas Civil Practice and Remedies Code § 27.009(a)(2). 

The Court finds that Plaintiffs brought this lawsuit to deter or pre nt Defendan from exercising 

its right o ree speech 

filed 

and proceedings in connection with Cause No. 2013-76215. In consideration of the above, 

including the award to Defendant of attomey·s fees in this lawsuit, and all of the evidence 

admitted and considered in this cause, the 

~ 

~~anction against Plaintiffs under Section 

27.009(a)(2) in the amount of~ectly rel~~duct an])o 

be appropriate, sufficient, and necessary to deter Plaintiffs from bringing similar actions 

described by Chapter 27 of the Texas Civil Practice and Remedies Code, and that lesser 

sanctions would be insufficient. It is further, 

ORDERED, ADJUDGED AND DECREED that all costs of court expended or incurred 

in this cause are hereby taxed against Plaintiffs, wh~I be jointly and severally liable for 

4 

3821737 
CertifiedDocumentNumber:61943380-Page7of7

such amount, plus post-judgment interest thereon, at the statutory rate of 5% per annum until 

paid. 

The Court orders execution to issue for this judgment. 

THIS IS A FINAL JUDGMENT. ALL RELIEF NOT EXPRESSLY GRANTED 

HEREIN IS DENIED. 

SIGN ED this ~a y of .L-~:,.>:4-=:__..<.........,-.: 

APPROVED AS TO FORM: 

PORTER HEDGES LLP 

By: Isl Jeffrey R. Elkin 

Jeffrey R. Elkin, SBN 06522180 

M. Harris Stamey, SBN 24060650 

I 000 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 

3821737 

5 

JUDGE PRESIDING 
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

HARRIS COUNTY, TEXAS

Chris Daniel, DISTRICT CLERK

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

Certified Document Number: 61943380 Total Pages: 7

this April 20, 2015
Exhibit N
7 

CAUSE NO. 2012-35162 

JOHN MOORE SERVICES, INC. and 

JOHN MOORE RENOVATION, LLC, 

Plaintiffs, 

v. 

THE BETTER BUSINESS BUREAU OF 

METROPOLITAN HOUSTON, INC., 

Defendant. 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

IN THE DISTRICT COURT OF 

HARRIS COUNTY, TEXAS 

269th JUDICIAL DISTRICT 

CHARGE OF THE COURT 

Members of the Jury: 

After the closing arguments, you will go to the jury room to decide the case, answer the 

questions that are attached, and reach a verdict You may discuss the case with other jurors only 

when you are all together In the jury room 

Remember my previous InstructlOns Do not discuss the case with anyone else, either in 

person or by any other means. Do not do any independent Investigation about the case or 

conduct any research. Do not look up any words in dictionanes or on the Internet. Do not post 

information about the case on the Internet Do not share any special knowledge or experiences 

with the other jurors Do not use your phone or any other electronic device during your 

deliberations for any reason. 

Any notes you have taken are for your own personal use. You may take your notes back 

into the jury room and consult them during deliberatlOns, but do not show or read your notes to 

your fellow jurors during your delIberations. Your notes are not evidence. Each of you should 

rely on your independent recollection of the evidence and not be influenced by the fact that 

another juror has or has not taken notes. 

You must leave your notes with the bailiff when you are not deliberating. The bailiff will 

give your notes to me promptly after collecting them from you. I will make sure your notes are 

~ ~ kept in a safe, secure location and not disclosed to anyone. After you complete your 

OJ ~ g deliberations, the bailiff will collect your notes. When you are released from jury duty, the ~~~ '" S m bailiff will promptly destroy your notes so that nobody can read what you wrote. g~~ 

ro~cn 

oen!!: 

~om 

~-t;'~ 

~Q~ CO.Qz 

!~ F I LED 

1 

Chris Daniel 

District Clerk 

JUL 2 2 2014 . ,a 

Time: ~'5o~ ·---H~a~rr~la~c~o~un~t~.~r---

By.~,. ______ ~~~~ __ ___ 

108
I. INSTRUCTIONS FOR ANSWERING THE QUESTIONS 

Here are the instructions for answering the questions. 

1. Do not let bias, prejudice, or sympathy play any part In your decision. 

2. Base your answers only on the evidence admitted in court and on the law that is in these 

instructions and questions Do not consIder or discuss any evidence that was not admitted in 

the courtroom 

3. You are to make up your own minds about the facts. You are the sole judges of the 

credibility of the witnesses and the weIght to give their testimony. But on matters of law, 

you must follow all of my Instructions 

4. If my instructions use a word in a way that is different from its ordinary meaning, use the 

meaning I give you, which will be a proper legal definition. 

5. All the questions and answers are important. No one should say that any question or answer 

is not important. 

6. Answer "Yes" or "No" to all questions unless you are told otherwise. A "Yes" answer must 

be based on a preponderance of the evidence unless you are told otherwise. Whenever a 

question requires an answer other than "Yes" or "No," your answer must be based on a 

preponderance of the evidence unless you are told otherwise 

The term "preponderance of the evidence" means the greater weight of credible evidence 

presented in this case. If you do not find that a preponderance of the evidence supports a 

"Yes" answer, then answer "No." A preponderance of the evidence is not measured by the 

number of witnesses or by the number of documents admitted in evidence. For a fact to be 

proved by a preponderance of the evidence, you must find that the fact is more likely true 

than not true 

A fact may be established by direct evidence or by circumstantial evidence or both. A fact is 

established by direct evidence when proved by documentary evidence or by witnesses who 

saw the act done or heard the words spoken. A fact is established by circumstantial evidence 

when it may be fairly and reasonably inferred from other facts proved. 

7. Do not decide who you think should win before you answer the questions and then just 

answer the questions to match your decision. Answer each question carefully without 

considering who will win. Do not discuss or consider the effect your answers will have. 

8. Do not answer questions by drawing straws or by any method of chance. 

9. Some questions mIght ask you for a dollar amount. Do not agree in advance to decide on a 

dollar amount by adding up each juror's amount and then figuring the average. 

10. Do not trade your answers. For example, do not say, "I WIll answer this question your way if 

you answer another question my way." 

2 

109
11. Unless otherwise instructed, the answers to the questions must be based on the decision of at 

least 10 of the 12 jurors. The same 10 jurors must agree on every answer. Do not agree to be 

bound by a vote of anything less than 10 jurors, even if it would be a majority. 

As I have Said before, if you do not follow these instructions, you will be guilty of juror 

misconduct, and I might have to order a new trial and start this process over again. This would 

waste your time and the parties' money, and would require the taxpayers ofthis county to pay for 

another trial. If a juror breaks any of these rules, tell that person to stop and report it to me 

immediately. 

II. DEFINITIONS 

As used in this Charge, the following words have the following meanings: 

1) "Houston BBB" means The Better Business Bureau of Metropolitan Houston, Inc. 

2) "John Moore" means John Moore Services, Inc and John Moore Renovations, LLC. 

3 

110
III. QUESTIONS 

Question No.1 

What is a reasonable fee for the necessary services of Houston BBB' s attorneys in defending 

against John Moore's legal action, stated in dollars and cents? 

You are instructed that the following factors should be considered when 

determining the amount of attorneys' fees: 

a. the time and labor involved, the novelty and difficulty of the 

questions involved, and the skill required to perform the legal 

services properly; 

b. the likelihood that the acceptance of the particular employment 

will preclude other employment by the lawyer; 

c the fee customarily charged in the locality for similar services; 

d. the amount mvolved and the results obtained; 

e. the time limitatIOns Imposed by the client or the circumstances; 

f. the nature and length of the professional relationship with the 

client, 

g the experience, reputatIOn and ability of the lawyer or lawyers 

performing the services; and 

h. whether the fee is fixed or contingent on results obtained or 

uncertainty of collection before the legal services have been 

rendered. 

Answer with an amount for each of the following: 

a. For representation in the trial court before and during Houston BBB's original 

interlocutory appeal. 

Answer: $ {o<o. 3<09. ~ 

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

Answer: $ cg, I :3 (.,0 . 80 

c. For representation at the petition-for-review stage to the Supreme Court of Texas for the 

original interlocutory appeal. 

Answer: $ 37 J 11€>:l-. QS 

4 

111
d. For representation in the trial court after the original interlocutory appeal was decided. 

Answer: $ ~4, ~ . ~'B 

e. For representation after thIS trial in the Court of Appeals. 

Answer: $ __ ~¢~ ___ _ 

f. For representation after this trial at the petition-for-review stage in the Supreme Court of 

Texas. 

Answer: $ JO --...!...-----

g. For representation after this tnal at the merits-briefing stage in the Supreme Court of 

Texas. 

Answer: $ _----'f4=-__ _ 

h. For representatIOn after thIS trial through oral argument and the completion of 

proceedings in the Supreme Court of Texas. 

Answer. $ _----'/0=--__ _ 

5 

112
IV. INSTRUCTIONS REGARDING THE PRESIDING JUROR 

1. When you go into the jury room to answer the questions, the first thing you will need to do is 

choose a presiding juror 

2. The presiding juror's duties are to: 

a. have the complete charge read aloud if it will be helpful to your deliberations; 

b. preside over your deliberations-meaning to manage the discussions and see that you 

follow these instructions; 

c. give written questions or comments to the bailiff, who will give them to the judge; 

d. write down the answers on which you agree; 

e. get the signatures for the verdict certIficate, and 

f. notify the bailiff that you have reached a verdict. 

Do you understand the dutIes of the presidmgjuror? If you do not, please tell me now. 

V. INSTRUCTIONS FOR SIGNING THE VERDICT CERTIFICATE 

1. Unless otherwise instructed, you may answer the questions on a vote of 10 jurors. The same 

10 jurors must agree on every answer in the charge. This means you may not have one group 

of 10 jurors agree on one answer and a different group of 10 jurors agree on another answer. 

2. If 10 jurors agree on every answer, those 10 Jurors sign the verdict. 

3. If 11 jurors agree on every answer, those 11 jurors sign the verdict. 

4. If all 12 of you agree on every answer, you are unanimous and only the presiding juror signs 

the verdict. 

5. All jurors should deliberate on every question You may end up with all 12 of you agreeing 

on some answers, while only 10 or 11 of you agree on other answers. But when you sign the 

verdict, only those 10 who agree on every answer will sign the verdict. 

Do you understand these mstructions? If you do not, please tell me now. 

Judge, 269th District Court 

6 

113
CERTIFICATE 

We, the jury, have answered the foregoing questions as indicated and return our answers 

into court as our verdict. 

I certify that the jury was unanimous m answer to the following questions: 

Answer "All" or list question, includmg subparts: A/I 

Printed Name of Juror Presiding 

If the answers to some questions were not unanimous, the jurors who agreed to those answers 

must certify as follows. 

We agree to the answers to the following questions: 

List questions, including subparts: 

SIGNATURE NAME PRINTED 

1. 

2. 

3. 

4. 

5. 

6. 

7. 

8. 

9. 

10. 

11. 

7 

114
Exhibit O
g6f; 

CAUSE NO. 2012-35162 

JOHN MOORE SERVICES, INC. and § 

JOHN MOORE RENOVATION, LLC § 

Plaintiffs, § 

V. § 

§ 

THE BETTER BUSINESS BUREAU OF § 

METROPOLITAN HOUSTON, INC. § 

IN THE DISTRICT COURT OF 

HARRIS COUNTY, TEXAS 

Defendant. § 269 TH JUDICIAL DISTRICT COURT 

FINAL JUDGMENT 

On July 16, 2013, the First Court of Appeals entered judgment in the original 

dated October 3, 2012. On February 14,2014, the Texas Supreme Court denied Plaintiffs John 

Moore Services, Inc. and John Moore Renovation, LLC's (collectively "Plaintiffs" or "John 

Moore") petition for review. On April 4, 2014, the First Court of Appeals issued its mandat~ 

dh'is ca~nd certified its judgment to this Court for observance. 

On July 21, 2014, the Houston BBB remaining claim for attorney's fees was tried to a 

jury. Plaintiffs appeared by their representative and by their attorneys of record and announced 

ready for trial. The Houston BBB appeared by its representative and by its attorneys of record 

announced ready for trial. A jury consisting of twelve qualified jurors were duly empaneled, and 

the jury reached a verdict on July 22, 2014. 

The Charge of the Court, Questions, Answers, and the Verdict Certificate are 

incorporated herein for all purposes. Consistent with the jury's findings, the Court renders 

judgment for the Houston BBB and against Plaintiffs for the following amounts: 

3821737 

5-/ 

115
(i) $106,369.28 for representation in the trial court before and during Houston BBB's 

original interlocutory appeal, plus post-judgment interest thereon, at the statutory 

rate of 5% per annum until paid; 

(ii) $81,360.80 for representation in the Court of Appeals for the original 

interlocutory appeal, plus post-judgment interest thereon, at the statutory rate of 

5% per annum until paid; 

(iii) $37,982.08 for representation In the petition-for-review stage to the Supreme 

Court of Texas for the original interlocutory appeal, plus post-judgment interest 

thereon, at the statutory rate of 5% per annum until paid; and 

(iv) $24,289.28 for representation in the trial court after the original interlocutory 

appeal was decided, plus post-judgment interest thereon, at the statutory rate of 

5% per annum until paid. 

Having considered the foregoing, the Defendant's Motion for Entry of Final Judgment, 

including attachments, the Plaintiffs' response, including attachments, if any, Defendant's reply, 

if any, the admissible evidence, the arguments of counsel, the pleadings on file, the evidence 

presented at trial, the jury's verdict, and the judgment of the First Court of Appeals, the Court is 

of the opinion that the Motion should be GRANTED in &@'t®and that Final Judgment be 

entered. It is therefore, ~ 

ORDERED, ADJUDGED AND DECREED that Defendant The Better Business Bureau 

of Metropolitan Houston, Inc.'s Motion for Entry of Final Judgment and for Award 

Costs, Expenses, and Sanctions against Plaintiffs is hereby GRANTED in 1 

-~~~ 

further; 

2 

3821737 

116
ORDERED, ADJUDGED AND DECREED that Plaintiffs claims are DISMISSED IN 

THEIR ENTIRETY WITH PREJUDICE, and that Plaintiffs TAKE NOTHING on their claims. 

It is further, 

ORDERED, ADJUDGED AND DECREED that Defendant The Better Business Bureau 

of Metropolitan Houston, Inc. have and recover from Plaintiffs, whom shall be jointly and 

severally liable for such amounts, as a reasonable fee for the necessary services of Houston 

BBB's attorneys in defending against John Moore's legal action: 

(i) $106,369.28 for representation in the trial court before and during Houston 

BBB's original interlocutory appeal, plus post-judgment interest thereon, at the 

statutory rate of 5% per annum until paid; 

(ii) $81,360.80 for representation in the Court of Appeals for the original 

interlocutory appeal, plus post-judgment interest thereon, at the statutory rate of 

5% per annum until paid; 

(iii) $37,982.08 for representation In the petition-for-review stage to the Supreme 

Court of Texas for the original interlocutory appeal, plus post-judgment interest 

thereon, at the statutory rate of 5% per annum until paid; and 

(iv) $24,289.28 for representation in the trial court after the original interlocutory 

appeal was decided, plus post-judgment interest thereon, at the statutory rate of 

5% per annum until paid, 

for a total of $250,001.44, plus post-judgment interest thereon, at the statutory rate of 5% per 

annum until paid, and which, based on the evidence admitted and considered in this cause, the 

Court finds to be just and equitable. It is further, 

3 

3821737 

117
ORDERED, ADJUDGED AND DECREED that Defendant The Better Business Bureau 

utory 

itted and considered in this 

cause, the Court FINDS to be just and equitable. It is further, 

ORDERED, ADJUDGED AND DECREED that Defendant The Better Business Bureau 

annum until paid, as sanctions under Texas Civil Practice and Remedies Code § 27.009(a)(2). 

The Court finds that Plaintiffs brought this lawsuit to deter or pre nt Defendan from exercising 

filed 

and proceedings in connection with Cause No. 2013-76215. In consideration of the above, 

including the award to Defendant of attorney's fees in this lawsuit, and all of the evidence 

admitted and considered in this cause, ~~~anction against Plaintiffs under Section 

27.009(a)(2) in the amount of~et;t1Y ~a ~~duct an{ho 

be appropriate, sufficient, and necessary to deter Plaintiffs from bringing similar actions 

described by Chapter 27 of the Texas Civil Practice and Remedies Code, and that lesser 

sanctions would be insufficient. It is further, 

ORDERED, ADJUDGED AND DECREED that all costs of court expended or incurred 

in this cause are hereby taxed against Plaintiffs, who6"'~~:l be jointly and severally liable for 

4 

3821737 

118
such amount, plus post-judgment interest thereon, at the statutory rate of 5% per annum until 

paid. 

The Court orders execution to issue for this judgment. 

THIS IS A FINAL JUDGMENT. ALL RELIEF NOT EXPRESSLY GRANTED 

HEREIN IS DENIED. 

SIGNED this ~ay of~-=~=-....'---::o""-":' 

APPROVED AS TO FORM: 

PORTER HEDGES LLP 

By: lsi Jeffrey R. Elkin 

Jeffrey R. Elkin, SBN 06522180 

M. Harris Stamey, SBN 24060650 

1000 Main Street, 36th Floor 

Houston, Texas 77002-6336 

Telephone: (713) 226-6617 

Telecopier: (713) 226-6217 

jelkinUVporterhedges.com 

mstameyUVporterhed ges.com 

ATTORNEYS FOR DEFENDANT 

3821737 

5 

JUDGE PRESIDING 

119