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

            No. 01-14-00687-CV

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

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

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

                    Lauren B. Harris
                    Texas Bar No. 02009470
                    lharris@porterhedges.com
                    Jeffrey R. Elkin
                    Susan K. Hellinger
                    M. Harris Stamey
                    PORTER HEDGES LLP
                    1000 Main Street, 36th Floor
                    Houston, Texas 77002
                    Telephone: (713) 226-6624
                    Facsimile: (713) 226-6224
                    Attorneys for Appellants
TO THE HONORABLE FIRST COURT OF APPEALS:

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

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

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

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

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

Referral to Mediation and related orders extending the mediation deadlines and

would respectfully show the Court as follows:

A.    Background

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

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

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

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

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

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

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

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

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

pet. denied).




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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

March 31, 2015.




                                        3
       At the conclusion of the oral argument of the second case, the Court raised

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

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

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

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

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

a later date:

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

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

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


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



                                           4
                   to accommodate that date. See id.; Order, dated 6-30-15. On
                   August 5, 2015, additional counsel appeared for John Moore.
                   See Appellees’ Notice of Appearance of Additional Counsel,
                   dated 8-5-15.3 Nevertheless, John Moore requested that the
                   August mediation be rescheduled due to “serious personal
                   issues involving counsel for John Moore []” and the parties
                   requested and received an extension of the mediation deadline.
                   See Parties’ Motion for Extension of Time to Complete
                   Mediation, dated 8-25-15; Notice that Court granted joint
                   motion for extension to complete the mediation, dated 8-27-15.

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

B.     Argument

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

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

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

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

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

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

Defendants understand is experiencing serious health issues.




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



                                        5
      Most recently, however, John Moore cancelled the mediation scheduled for

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

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

Houston BBB Defendants have accommodated John Moore and its counsel over

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

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

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

mediation will take place in November 2015, or ever.

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

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

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

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

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

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

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

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

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

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

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

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



                                         6
second case is part of serial litigation that has been ongoing since 2012 and needs

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

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

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

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

to a conclusion.

      WHEREFORE, Appellants The Better Business Bureau of Metropolitan

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

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

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

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

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

mediation deadlines.

Dated: September 29, 2015.




                                         7
Respectfully submitted,

PORTER HEDGES LLP


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

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




  8
                      CERTIFICATE OF CONFERENCE

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

                                              /s/ Susan K. Hellinger
                                              Susan K. Hellinger




                         CERTIFICATE OF SERVICE

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


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

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

                                              /s/ Lauren B. Harris
                                              Lauren B. Harris

5105865




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