                                                                  ACCEPTED
                                                              01-14-00906-CV
                                                   FIRST COURT OF APPEALS
                                                           HOUSTON, TEXAS
                                                         5/20/2015 9:24:36 PM
                                                        CHRISTOPHER PRINE
                                                                       CLERK

       No. 01-14-00906-CV

                                            FILED IN
             In The                  1st COURT OF APPEALS
                                         HOUSTON, TEXAS
      First Court of Appeals         5/20/2015 9:24:36 PM
         Houston, Texas              CHRISTOPHER A. PRINE
                                             Clerk


JOHN MOORE SERVICES, INC. AND
JOHN MOORE RENOVATION, LLC,

                         Appellants,
                v.

THE BETTER BUSINESS BUREAU OF
 METROPOLITAN HOUSTON, INC.,
                         Appellee.

      BRIEF OF APPELLEE

               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
               PORTER HEDGES LLP
               1000 Main Street, 36th Floor
               Houston, Texas 77002
               Telephone: (713) 226-6624
               Facsimile: (713) 226-6224
               Attorneys for Appellee The Better
               Business Bureau of Metropolitan,
               Houston, Inc.

ORAL ARGUMENT REQUESTED
                   IDENTITY OF PARTIES AND COUNSEL
       Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), the following

is a list of all parties and the names and addresses of all counsel:

I.     APPELLANTS:
       John Moore Services, Inc. and John Moore Renovation, LLC

II.    COUNSEL FOR APPELLANTS:

       Douglas Pritchett
       JOHNSON, TRENT, WEST & TAYLOR LLP
       919 Milam, Suite 1700
       Houston, Texas 77002
       Telephone: (713) 222-2323
       Facsimile: (713) 222-2226

       Lori Hood
       BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, P.C.
       1301 McKinney St., Suite 3700
       Houston, Texas 77010
       Telephone: (713) 650-9700
       Facsimile: (713) 650-9701

III.   APPELLEE:

       The Better Business Bureau of Metropolitan Houston, Inc.

IV.    COUNSEL FOR APPELLEE:

       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 No.

Identity of Parties and Counsel ................................................................................. ii

Table of Contents ..................................................................................................... iii

Table of Authorities ................................................................................................. vi

Statement of the Case.................................................................................................x

Issues Presented ....................................................................................................... xi

Introduction ................................................................................................................1

Statement of Facts ......................................................................................................2

         A.        The Bureau Successfully Defends John Moore’s
                   Anti-SLAPP Lawsuit.............................................................................2

         B.        John Moore Fails In Its Attempt To Amend Its Pleadings
                   After This Court’s Decision That Dismissal Was Warranted...............4

         C.        A Jury Awards The Bureau Its Attorneys’ Fees Pursuant to
                   the TCPA ...............................................................................................6

         D.        John Moore Fails In Its Post-Trial Attempt To Consolidate
                   This Case With Its Second Pending Lawsuit Against the Bureau ........7

Summary of Argument...............................................................................................8

Standard of Review ....................................................................................................9

Argument..................................................................................................................10

I.       The Jury’s Award of Attorneys’ Fees To The Bureau Is Supported By
         Legally Sufficient Evidence...........................................................................10

         A.        The Jury’s Award Is Within The Range of The Evidence
                   Presented..............................................................................................11

         B.        The Bureau’s Documentary Evidence Supports The Jury’s
                   Verdict .................................................................................................18

                                                             iii
                  1.       The Redaction of Privileged Information From Client
                           Invoices To Protect Confidentiality Is Entirely Appropriate....19

                           a.       John Moore’s Failure To Object To Any Redaction
                                    of Information Waived That Claim ................................19

                           b.       Texas Law Recognizes That Redacted Fee
                                    Statements Can Support A Fee Award ...........................20

                  2.       The “Block Billing” In The Bureau’s Invoices Does Not
                           Preclude Any Recovery of Attorneys’ Fees..............................23

         C.       The Bureau’s Expert’s Testimony Is Legally Sufficient Evidence
                  to Support the Fee Award....................................................................27

         D.       Alternatively, The Case Should Be Remanded To Allow The
                  Court To Determine The Appropriate Fee Award ..............................29

II.      The Trial Court Properly Denied John Moore’s Untimely Attempts
         To Amend Its Pleadings and To Consolidate This Case With Its
         Second Lawsuit..............................................................................................31

         A.       The Trial Court Properly Denied John Moore’s Untimely
                  Request For A Pleading Amendment..................................................31

         B.       The Trial Court Acted Within Its Sound Discretion In
                  Declining To Consolidate This Case With The New Lawsuit............36

                  1.       John Moore Waived Its Challenge To The Alleged
                           Failure To Consolidate This Case With Its Second
                           Lawsuit ......................................................................................36

                  2.       John Moore’s Post-Verdict Consolidation Request Was
                           Untimely and An Attempt to Avoid The Earlier Denial
                           of Pleading Amendments ..........................................................38

Conclusion and Prayer .............................................................................................40

Certificate of Service................................................................................................42

Certificate of Compliance ........................................................................................43




                                                           iv
Appendix:

Tab A: TEX. CIV. PRAC & REM. CODE ANN. §51.014

Tab B: Act of May 24, 2013, 83d Leg., R.S., H.B. 2935, § 6

Tab C: Timeline of Procedural Events




                                       v
                                     TABLE OF AUTHORITIES

                                                                                                           Page(s)
CASES
Allison v. Ark. La. Gas Co.,
      624 S.W.2d 566 (Tex. 1981) .........................................................................10

Arthur Andersen & Co. v. Perry Equip. Corp.,
      945 S.W.2d 812 (Tex. 1997) .................................................................. 14, 15

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)........................................................................................... x, 1, 3, 4, 33

Breitling Oil & Gas Corp. v. Petroleum Newspapers of Ak., LLC,
       No. 05-14-00299-CV, 2015 WL 1519667 (Tex. App.—Dallas
       Apr. 1, 2015, no pet. h.) .................................................................................30

Burroughs Wellcome Co. v. Crye,
     907 S.W.2d 497 (Tex. 1995) .........................................................................26

Cherry v. McCall,
     138 S.W.3d 35 (Tex. App.—San Antonio 2004, pet. denied)................ 27, 28

Chevron Chem. Co. v. Southland Contracting, Inc.,
     No. 05-96-00560-CV, 1998 WL 640987 (Tex. App.—
     Dallas 1998, pet. denied) (not designated for publication) ...........................11

Circle Y of Yoakum v. Blevins,
      826 S.W.2d 753 (Tex. App.—Texarkana 1992, writ denied) .......................17

City of Austin v. Whittington,
       384 S.W.3d 766 (Tex. 2012) .........................................................................34

City of Laredo v. Montano,
       414 S.W.3d 731 (Tex. 2013) .................................................................. 25, 28

City of Keller v. Wilson,
       168 S.W.3d 802 (Tex. 2005) .........................................................................10

Clark v. Trailways, Inc.,
      774 S.W.2d 644 (Tex. 1989) .........................................................................20


                                                          vi
                               Table of Authorities (continued)
Douglas v. Am. Title Co.,
     196 S.W.3d 876 (Tex. App.—Houston [1st Dist.] 2006, no pet.)...................2

El Apple I, Ltd. v. Olivas,
      370 S.W.3d 757 (Tex. 2012) ............................................................ 23, 24, 25

Estate of Johnson,
      No. 11-00467-CV, 2012 WL 1940656 (Tex. App.—San Antonio
      May 30, 2012, no pet.)...................................................................................22

Garcia v. Gomez,
     319 S.W.3d 638 (Tex. 2010) .........................................................................28

Gaughan v. Nat’l Cutting Horse Ass’n,
     351 S.W.3d 408 (Tex. App.—Fort Worth 2011, pet. denied).......................22

Gulf States Utils. Co. v. Low,
      79 S.W.3d 561 (Tex. 2002) ...........................................................................11

Hardin v. Hardin,
     597 S.W.2d 347 (Tex. 1980) .........................................................................10

Helena Chem. Co. v. Wilkins,
     47 S.W.3d 486 (Tex. 2001) ...........................................................................11

Hines v. Parks,
      128 Tex. 289 S.W.2d 970 (1936) ............................................................................. 19

Hunter v. Andrews,
     570 S.W.2d 590 (Tex. Civ. App.—Waco 1978, no writ)..............................39

In re Ethyl Corp.,
       975 S.W.2d 606 (Tex. 1998) .........................................................................39

James v. Calkins,
     446 S.W.3d 135 (Tex. App.—Houston [1st Dist.] 2014, pet. filed) ...... 33, 35

Jarvis v. Rocanville Corp.,
      298 S.W.3d 305 (Tex. App.—Dallas 2009, pet. denied)........................ 20, 21

John Moore Servs., Inc. v. Better Bus. Bureau of Metro. Hous., Inc.,
     No. 13-0658 (Tex. Feb. 14, 2014) ...................................................................6


                                                        vii
                              Table of Authorities (continued)
Kinney v. BCG Attorney Search, Inc.,
     No. 03-12-00579-CV, 2014 WL 1432012 (Tex. App.—Austin
     Apr. 11, 2014, no. pet.) (mem. op., not designated for publication) .............34

Lemons v. EMW Mfg. Co.,
     747 S.W.2d 372 (Tex. 1998) (per curiam) ....................................................38

Lone Star Ford, Inc. v. McCormick,
      838 S.W.2d 734 (Tex. App.—Houston [1st Dist.] 1992, writ denied)..........10

Long v. Griffin,
      442 S.W.3d 253 (Tex. 2014) ............................................................ 23, 24, 25

Mayberry v. Texas Dep’t of Agric.,
     948 S.W.2d 312 (Tex. App.—Austin 1997, writ denied)..............................11

Mitchell v. Fort Davis State Bank,
      243 S.W.3d 117 (Tex. App.—El Paso 2007, no pet.) ...................................11

Perez v. Embree Constr. Group, Inc.,
      228 S.W.3d 875 (Tex. App.—Austin 2007, pet. denied) ..............................35

Ramsey v. Lynch,
     No. 10-12-00198-CV, 2013 WL 1846886 (Tex. App.—Waco
     May 2, 2013, no pet. h.).................................................................................30

Rehak Creative Servs., Inc. v. Witt,
     404 S.W.3d 716 (Tex. App.—Houston [14th Dist.] 2013, pet. denied)........30

Schaefer v. Tex. Employers’ Ins. Ass’n,
      612 S.W.2d 199 (Tex. 1980) .........................................................................27

Schimmel v. McGregor,
     438 S.W.3d 847 (Tex. App.—Houston [1st Dist.] 2015, pet. denied) ..........36

Sentinel Integrity Solutions, Inc. v. Mistras Grp., Inc.,
      414 S.W.3d 911 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) ..........22

Shipp v. Malouf,
      439 S.W.3d 432 (Tex. App.—Dallas 2014, pet. denied).................................6

South W. Prop. Trust, Inc. v. Dallas Cty Flood Control Dist.,
      136 S.W.3d 1 (Tex. App.—Dallas 2002, no pet.) .........................................39

                                                     viii
                                Table of Authorities (continued)
Sterner v. Marathon Oil Co.,
      767 S.W.2d 686 (Tex. 1989) ...........................................................................9

Subaru of Am., Inc. v. David McDavid Nissan, Inc.,
     84 S.W.3d 212 (Tex. 2002) ...........................................................................34

Watler v. Watler,
      No. 01-01-01038-CV, 2003 WL 1091765 (Tex. App.—Houston
      [1st Dist.] Mar. 13, 2003, no pet.) (mem. op., not designated for
      publication) ....................................................................................................22

Woodhaven Partners, Ltd. v. Shamoun & Norman, LLP,
    422 S.W.3d 821 (Tex. App.—Dallas 2014, no pet.) .....................................20

RULES AND STATUTES
TEX. CIV. PRAC. & REM. CODE ANN. § 27.001 et seq.................................................x

TEX. CIV. PRAC. & REM. CODE ANN. §27.009(a)(1).............................................8, 30

TEX. CIV. PRAC. & REM. CODE ANN. §51.014 ............................................ 32, 33, 34

TEX. CIV. PRAC. & REM. CODE ANN. §51.014(b).................................................5, 33

TEX. R. APP. P. 33.1..................................................................................................20

TEX. R. CIV. P. 21 .....................................................................................................37

TEX. R. CIV. P. 269(e)...............................................................................................17

TEX. R. CIV. P. 301 ...................................................................................................19

TEX. R. EVID. 103(a)(1) ............................................................................................20

TEX. R. EVID. 703 .....................................................................................................29

TEX. R. EVID. 705 .....................................................................................................29




                                                           ix
                         STATEMENT OF THE CASE
Nature of the Case:    Plaintiffs John Moore Services, Inc. and John Moore
                       Renovation, LLC (“John Moore”) filed suit against The
                       Better Business Bureau of Metropolitan Houston, Inc.
                       (“the Bureau”) based on the Bureau’s publication of an
                       online review of John Moore. FirstSupp.CR5-23. The
                       Bureau filed a motion pursuant to the Texas Citizens
                       Participation Act (“TCPA”) to dismiss the lawsuit, and
                       the trial court denied the motion. SecondSupp.CR4-58;
                       TEX. CIV. PRAC. & REM. CODE ANN. §27.001 et seq.
                       (Vernon 2012). Following an interlocutory appeal, this
                       Court reversed the trial court’s order, and remanded the
                       case to the trial court for further proceedings. 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). The Bureau then moved for the
                       recovery of attorneys’ fees, costs, and sanctions against
                       John Moore.        FirstSupp.CR149-352.       John Moore
                       objected to the motion, and sought a jury trial on the
                       issue of attorneys’ fees. First Supp.CR359-412.

Trial Court:           The Honorable Dan Hinde, 269th Judicial District Court
                       of Harris County, Texas, Cause No. 2012-35162.

Trial Court            The trial court denied the Bureau’s motion for attorneys’
Disposition:           fees, and set the issue for trial. First Supp.CR450. The
                       issue of attorneys’ fees was tried to a jury that awarded
                       the Bureau $250,001.44 in defense costs incurred in the
                       trial court and for the interlocutory appeal. CR108-115.
                       The trial court signed a final judgment in favor of the
                       Bureau dismissing the case, and awarding it a total of
                       $250,001.44 in attorneys’ fees and $6,000 as sanctions
                       against John Moore under the TCPA. CR115-19.

Parties in the Court   Appellants: John Moore Services, Inc. and John Moore
of Appeals:            Renovation, LLC

                       Appellee: The Better Business Bureau of Metropolitan
                       Houston, Inc.



                                      x
                            ISSUES PRESENTED
1.   Whether the testimony of the Bureau’s expert witness and contemporaneous
     monthly billing records offered at trial constitute legally sufficient evidence
     to support the jury’s award of attorneys’ fees to the Bureau? (Response to
     Appellants’ First Issue)

2.   Whether the trial court properly exercised its discretion in declining:

     a.    to permit John Moore to assert new claims and add new parties after
           this Court decided in the Bureau’s interlocutory appeal that the case
           warranted dismissal under the TCPA, and after the pleading
           amendment and party joinder deadlines had long expired?

     b.    to consolidate this case with John Moore’s newly filed second lawsuit
           when it did not file its motion to consolidate until after the jury trial
           on attorneys’ fees, and never properly presented its motion to the trial
           court for a ruling, thereby waiving the complaint? (Response to
           Appellants’ Second Issue)




                                        xi
                                     INTRODUCTION
         The Texas Citizens Participation Act (“TCPA”) was enacted to deter

litigation aimed at squelching the exercise of free speech and brought for purposes

of harassment. Undeterred by this statute, John Moore has strived to defy the

legislative mandate. Through multiple lawsuits in state court, John Moore has

sought nothing more than to keep its claims alive and avoid this Court’s prior

determination that this litigation is governed by the TCPA and should be

dismissed.1 See John Moore Servs., 441 S.W.3d at 345. In this appeal, John

Moore challenges the denial of its attempts to assert new claims and join new

parties following this Court’s ruling, and the legal sufficiency of the jury’s award

of attorneys’ fees against it despite the wealth of support for the verdict in the

record. The trial court’s judgment against John Moore should be affirmed.




1
    Q: (By the Court): “Ultimately, whether we have an Anti-SLAPP statute or not, you
     know, courts really frown on satellite litigation. Isn’t this case just an end-run around
     the trial court’s ruling that the pleadings, could not be amended and isn’t this just an
     effort through a new lawsuit to amend pleadings that the trial court said could not be
     amended?”

    A: (By John Moore’s counsel): “Um, (pause) I guess the short answer is, is ‘yes,’. . .”

See Oral argument transcript from March 31, 2015 argument in the related appeal, Cause
no. 01-14-687-CV.


                                               1
                             STATEMENT OF FACTS

  A.       The Bureau Successfully Defends John Moore’s Anti-SLAPP Lawsuit.
       John Moore filed suit against the Bureau in June 2012. FirstSupp.CR5-23;

3RR143. Among other things, John Moore complained that while it once received

A+ ratings, its rating was later changed to an unfavorable “F.” FirstSupp.CR5-23.

John Moore asserted claims against the Bureau for tortious interference with

existing and prospective business relationships, fraud, business disparagement,

defamation, and “equitable remedies,” all based on, related to, or in response to the

Bureau’s review and rating. 3RR147; FirstSupp.CR 5-23.

       The Bureau filed a motion to dismiss the lawsuit based on the TCPA.

SecondSupp.CR4-58;2 3RR144. John Moore opposed the motion and immediately

sought discovery from the Bureau. 3RR144. Its response to the motion to dismiss

included 48 pages of briefing and 367 pages of exhibits. 3RR146. John Moore

also sought a continuance of the hearing on the motion to dismiss and the

opportunity to pursue further discovery. 3RR145. The trial court granted John



       2
         Many of the pleadings relevant to this dispute are also included in the record in
Cause no. 01-12-00990-CV, the interlocutory appeal previously pending in this Court
related to the merits of the Bureau’s motion to dismiss. See e.g. CR27-79 (the Bureau’s
motion to dismiss), CR127-545 (John Moore’s response), and CR557-570 (the Bureau’s
reply). This Court may take judicial notice of its own records relating to the same parties
and subject matter. See Douglas v. Am. Title Co., 196 S.W.3d 876, 878 n.1 (Tex. App.—
Houston [1st Dist.] 2006, no pet.).



                                            2
Moore’s request for additional discovery, and ordered the production of

documentary evidence. FirstSupp.CR30; 3RR145. The Bureau filed a detailed

reply to John Moore’s response, refuting John Moore’s arguments that there was

evidence as to any of its claims. 3RR147.

      The parties participated in a hearing on the Bureau’s motion to dismiss in

September 2012. 3RR148. The trial court ultimately denied the motion. Second

Supp.CR85-86; 3RR148. The Bureau then filed an interlocutory appeal. Second

Supp.CR89-90; 3RR149; John Moore Servs., 441 S.W.3d at 345.

      While the case was on appeal, John Moore served the Bureau with requests

for production seeking approximately 75 categories of documents. 3RR149. The

Bureau produced approximately 12,000 pages of documents in response to the

requests. 3RR151. The Bureau asked John Moore to agree to a stay of discovery

during the pendency of the interlocutory appeal, but John Moore declined.

3RR150. The court of appeals also denied the Bureau’s requests for a discovery

stay. 3RR150; 4RR104-05. Discovery continued from approximately February

through May 2013. 3RR151; 4RR105.

      In April 2013, John Moore sought to extend the pleading amendment

deadline in the docket control order. SecondSupp.CR104-07. The Bureau agreed

to the request, and the trial court extended the pleading amendment deadline to




                                        3
July 26, 2013. FirstSupp.CR35-37. John Moore did not request a corresponding

extension of the party joinder deadline.

      Meanwhile, both sides filed extensive briefing in the court of appeals, and

the case was submitted for oral argument. 3RR152; 4RR28-29. The parties

attempted to mediate the case, but were unable to settle their dispute. 3RR153;

240. In July 2013, this Court reversed the district court’s order and remanded the

case, holding that the Bureau met its burden to prove that John Moore’s legal

action related to the exercise of its right of free speech and was governed by the

TCPA. John Moore Servs., 441 S.W.3d at 354; 3RR152. The Court further held

that “John Moore has failed to sustain its burden to show, by clear and specific

evidence, a prima facie case for each essential element of its claims, or that its

claims fall within the commercial-speech exception.” John Moore Servs., 441

S.W.3d at 362.

B.    John Moore Fails In Its Attempt To Amend Its Pleadings After This
      Court’s Decision That Dismissal Was Warranted.
      Attempting to keep its litigation against the Bureau alive, after this Court’s

decision, on September 27, 2013, John Moore filed an amended petition. CR4-40.

The amended petition joined a number of officers and directors of the Bureau and

others and asserted several additional claims, including violations of the Texas

Free Enterprise and Antitrust Act (“Antitrust Act”), breach of contract, unjust

enrichment, detrimental reliance, fraud in the inducement, and violations of the


                                           4
Texas Deceptive Trade Practices Consumer Protection Act (“DTPA”). CR4-40;

3RR153. A few days after filing its amended pleading, on September 30, 2013,

John Moore filed a petition for review with the Texas Supreme Court. 3RR154.

      Then, John Moore sought another continuance of the deadlines in the docket

control order. SecondSupp.CR116-120. It also sought leave to join new parties in

the lawsuit. FirstSupp.CR44-49. The Bureau opposed the motions because the

deadlines had passed, and this Court had rendered a decision on the merits of the

appeal. FirstSupp.CR51-92; SecondSupp.CR122-163.

      Although the trial court initially granted leave to file the amended petition

and issued an amended docket control order, FirstSupp.CR94-97, the court

withdrew that ruling when the Bureau moved for reconsideration. CR43-73. In

June 2013, the Legislature had amended the Texas Civil Practice & Remedies

Code to establish an automatic stay of any trial court proceedings during the

pendency of an interlocutory appeal under the TCPA. See TEX. CIV. PRAC. & REM.

CODE ANN. §51.014(b); App. A–B. As a result, the trial court lacked the authority

to allow any pleading amendment while John Moore’s appeal continued.

      On November 1, 2013, the trial court struck John Moore’s amended petition.

FirstSupp.CR143-144; 3RR155.       The trial court also vacated its prior order

granting a continuance and extending the deadlines in the docket control order, and

vacated its new trial preparation and docket control orders. FirstSupp. CR143-44.



                                        5
C.    A Jury Awards The Bureau Its Attorneys’ Fees Pursuant to the TCPA.
      The Supreme Court denied John Moore’s petition for review on February

14, 2014. 3RR153-54. See John Moore Servs., Inc. v. Better Bus. Bureau of

Metro. Hous., Inc., No. 13-0658 (Tex. Feb. 14, 2014). Once the appellate court’s

mandate issued on April 4, 2014, the Bureau requested its attorneys’ fees in the

trial court. FirstSupp.CR149-352; 3RR156. Jeff Elkin, counsel for the Bureau,

provided an affidavit supporting the fee request. FirstSupp.CR201-313; 3RR157.

The affidavit discussed the work that Porter Hedges performed, and summarized

the invoices. Id. Mr. Elkin also testified that the amount of fees, rates charged,

and work performed was reasonable and necessary. Id. John Moore challenged

the Bureau’s request and sought a jury trial of the issue. FirstSupp.CR359-412;

3RR158. The trial court ultimately denied the Bureau’s fee request, and set the

case for trial. FirstSupp.CR450.

      In July 2014, the Bureau’s claim for attorneys’ fees was tried to a jury.

CR108-114.      At trial, the Bureau sought $375,000 in attorneys’ fees,

approximately $15,000 less than it incurred. 3RR167-68. The Bureau decided to

omit any request for paralegal fees or fees incurred based on the work of very

young associates, and did not seek fees for the time it incurred in trying the

attorneys’ fees dispute or in seeking the recovery of its fees. 3RR161-62.




                                         6
      The jury awarded the Bureau $106,369.28 for the attorneys’ fees it incurred

in the trial court before and during the interlocutory appeal; $81,360.80 for

representation in the court of appeals; $37,982.08 for fees it incurred in the

supreme court at the petition for review stage, and $24,289.28 for its lawyers’

work performed after the appeal was decided. CR111-112. The jury declined to

award fees for any future attorneys’ fees incurred for this appeal. CR112.

D.    John Moore Fails In Its Post-Trial Attempt To Consolidate This Case
      With Its Second Pending Lawsuit Against The Bureau.
      After John Moore’s failed attempt to amend its pleadings, it simply filed

another lawsuit in state court. FirstSupp.CR693. The new lawsuit included the

same allegations and named the same new parties as the amended petition filed

earlier in this lawsuit. FirstSupp.CR552-81.

      The Bureau moved for entry of final judgment in this case in accordance

with the jury’s verdict. FirstSupp.CR.458-487. The Bureau set its motion for

hearing on August 8, 2014.      FirstSupp.CR488-89.     Then, the day before the

hearing (and approximately two weeks after the attorneys’ fees trial), John Moore

filed a motion to consolidate this case with its second lawsuit. FirstSupp.CR490-

684. However, it never set its motion for hearing.

      The following day, at the hearing on the Bureau’s motion for entry of

judgment, the Bureau objected to the trial court’s consideration of any issues

relating to consolidation. 5RR21. The trial court sustained the objection, and


                                         7
entered a final judgment. 5RR22; CR115-19. The trial court dismissed John

Moore’s claims with prejudice and awarded the Bureau attorneys’ fees of

$250,001.44 plus interest in accordance with the jury’s verdict, and $6,000 in

sanctions against John Moore. CR115-19. John Moore never sought or obtained

any ruling on its consolidation request.

                          SUMMARY OF ARGUMENT

      The judgment awarding the Bureau its attorneys’ fees should be affirmed.

The Bureau succeeded on its motion to dismiss under the TCPA, and the statute

entitles it to the recovery of its attorneys’ fees. See TEX. CIV. PRAC. & REM. CODE

ANN. §27.009(a)(1). The jury’s award of $250,000 in attorneys’ fees is supported

by the Bureau’s expert witness’s testimony and the monthly invoices describing

the work done, amounts charged, and identifying the lawyer performing the work.

DX3; 3RR167-68. The Bureau’s expert testified as to the reasonableness and

necessity of the Bureau’s attorneys’ fees, and the jury’s $250,000 fee award was

within the range of the evidence presented, and certainly less than the $375,000 in

fees sought. Id.; 4RR54, 108. John Moore’s assertions that the invoices the

Bureau’s expert relied upon were legally insufficient to support the verdict because

they were redacted to protect client confidentiality or included “bulk billing” rather

than task-billing has no support in Texas law.




                                           8
      Likewise, the trial court acted within its sound discretion in denying John

Moore’s requests to amend its pleadings to add new claims and parties, and to

consolidate this case with its second lawsuit. John Moore missed the docket

control order deadlines, and never sought to amend its pleadings until after this

Court’s decision that the case should be dismissed—over a year after suit was

filed. CR4-40; FirstSupp.CR33, 35-37. Even after the mandate issued and an

automatic statutory stay was no longer in effect, John Moore did not make any

request for leave to amend.       Further, the trial court correctly declined to

consolidate this case with the second one where John Moore never properly set its

request for hearing, and the motion was not filed until after the trial and the day

before judgment. FirstSupp.CR490-684; See App. C (Timeline). John Moore’s

attempts to circumvent the TCPA through serial litigation should not be condoned.

                           STANDARD OF REVIEW

      If an appellant is attacking the legal sufficiency of the evidence to support an

adverse finding on an issue on which he did not have the burden of proof at trial,

he must demonstrate that “no evidence” supports the finding. See Sterner v.

Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989). In Issue One, John Moore

challenges the legal sufficiency of the jury’s findings awarding attorneys’ fees to

the Bureau. A “no evidence” point should be sustained only when the record

reveals: (1) a complete absence of a vital fact; (2) the court is barred by rules of



                                          9
law or evidence from giving weight to the only evidence offered to prove a vital

fact; (3) the evidence offered to prove a vital fact is no more than a scintilla of

evidence; or (4) the evidence establishes conclusively the opposite of a vital fact.

See City of Keller v. Wilson, 168 S.W.3d 802, 810-28 (Tex. 2005).

      In Issue Two, John Moore challenges the trial court’s decisions to preclude

further pleading amendments to allow it to assert new causes of action and join

new parties, and allow this case to be consolidated with its second lawsuit.

Appellate courts review the trial court’s rulings on pleading amendments under an

abuse of discretion standard. See Hardin v. Hardin, 597 S.W.2d 347, 349-50 (Tex.

1980).   Similarly, appellate courts review trial courts’ decisions regarding

consolidation under an abuse of discretion standard. See Allison v. Ark. La. Gas

Co., 624 S.W.2d 566, 568 (Tex. 1981); Lone Star Ford, Inc. v. McCormick, 838

S.W.2d 734, 737 (Tex. App.—Houston [1st Dist.] 1992, writ denied).

                                  ARGUMENT

I.    The Jury’s Award of Attorneys’ Fees to the Bureau Is Supported by
      Legally Sufficient Evidence.
      Attempting to undermine the Bureau’s proof at the outset, John Moore

mischaracterizes testimony in the record as a concession from the Bureau that “the

jury could not determine whether the [Bureau’s] attorneys’ fees were reasonable

without looking at the invoices.” App. Br. 6-7. The record, however, belies that

claim as the invoices were not the sole source of support for Bureau’s claim for


                                        10
attorneys’ fees. Although the invoices provide information to determine “exactly

what work was done to incur those fees,” the jury was also entitled to rely on the

testimony of the Bureau’s expert witness, Jeff Elkin, as to the necessity and

reasonableness of those fees. 3RR156-67. Through expert witness testimony and

supporting documentary evidence, legally sufficient evidence supports the jury’s

fee award.

      A.     The Jury’s Award Is Within The Range of The Evidence Presented.

      A jury has broad discretion to award damages within the range of evidence

presented at trial. See Gulf States Utils. Co. v. Low, 79 S.W.3d 561, 566 (Tex.

2002); see Mayberry v. Texas Dep’t of Agric., 948 S.W.2d 312, 317 (Tex. App.—

Austin 1997, writ denied). When the evidence supports a range of awards, an

award of damages within that range will be upheld. See Helena Chem. Co. v.

Wilkins, 47 S.W.3d 486, 506 (Tex. 2001); Mitchell v. Fort Davis State Bank, 243

S.W.3d 117, 127 (Tex. App.—El Paso 2007, no pet.) (finding attorneys’ fee award

to be within the range of the evidence offered); Chevron Chem. Co. v. Southland

Contracting, Inc., No. 05-96-00560-CV, 1998 WL 640987, at *5 (Tex. App.—

Dallas Sept. 21, 1998, pet. denied) (not designated for publication) (same).

      The Bureau provided substantial evidence of reasonable and necessary fees

of $375,000. The invoices it offered in evidence detailed the work performed on

the Bureau’s behalf that resulted in a successful outcome. DX3. These invoices



                                         11
were sent to the Bureau on a monthly basis for its review and payment. They not

only describe the work performed, but identify the person performing the work, the

date it was performed, the time spent, and the charge. DX3. Summaries of the

invoices broken down by phase of the litigation (DX7, 3RR158); the chronological

history of the case (DX9, 3RR160); the lawyers working on the case and hourly

rates charged by lawyer (DX8, 3RR163); and the work performed on a monthly

basis (DX6, 3RR160), were also admitted in evidence. 3RR5.

      Jeff Elkin, the Bureau’s attorney in the litigation, also testified as an expert

on the Bureau’s attorneys’ fees. Mr. Elkin has been practicing for almost 30 years

as a commercial litigation lawyer and has handled litigation for hundreds of clients.

3RR128-29, 166. He was previously employed with Baker Botts in Houston, but

has been a partner at Porter Hedges since 1996. 3RR129. He has been recognized

for his legal skills in Chambers USA. 3RR131. He served as the lead lawyer in

this litigation, and has represented the Bureau for over twenty years. 3RR132.

      Mr. Elkin opined that he was qualified to testify as an expert based on his

years of experience as a commercial litigator, and through his position as billing

partner on hundreds of matters. 3RR166. He has also reviewed periodicals and

surveys and conversed with other lawyers about rates that are typically charged in

the Houston and Dallas areas. 3RR166, 169-70. Therefore, he had the experience




                                         12
to determine what work is necessary on a litigation matter, the time it should take,

and the rate for the work that would be reasonable. 3RR166.

      Mr. Elkin further testified that it was his opinion that the $375,000 in

attorneys’ fees the Bureau was seeking was reasonable. 3RR167-68. In forming

his opinion, Mr. Elkin considered the type of lawsuit, the amount of work

necessary to win the case, and the rates that are charged for lawyers with similar

experience in the Houston area. 3RR167-68. Mr. Elkin, an equity partner, has an

hourly rate of $525, which he testified to be reasonable and in the “middle of

market” for a lawyer of his experience handling complex commercial litigation at a

comparable firm. 3RR168-70.

      Similarly, other lawyers working on the case were billed at hourly rates

varying downward from Mr. Elkin’s depending in part on their years in practice

and legal experience. See DX8. For example, the Bureau used the services of an

appellate specialist to handle the interlocutory appeal. 3RR170-72. The appellate

lawyer drafted the majority of the legal briefing on appeal and participated in oral

argument at a rate of approximately $470 per hour. 3RR171-72. Two senior

associates working on the case charged rates of approximately $290-$325 per hour,

depending on their years in practice. 3RR172-73; DX8. A second-year associate

helping on a discrete matter related to the case was charged at a rate of $220 per




                                        13
hour. 3RR173. Mr. Elkin testified that he believed these rates to be reasonable.

3RR172-73.

       Mr. Elkin further testified that the work performed was necessary in order to

win the case, and that the time spent was reasonable. 3RR173. He again based his

opinion on his years of experience in business litigation, among other things.

3RR174. He testified that he spent a significant amount of time every month going

over the draft invoices.       3RR174.      Mr. Elkin also confirmed that he made

adjustments to the billing if he believed that the time spent on certain tasks was too

great. 3RR174. He was not aware of any duplicative time entries, or any billing

for work performed on other files. 3RR176. In both February and April 2013, the

Bureau was given a $15,000 discount on fees. 3RR164.

       Mr. Elkin testified that in rendering his expert opinion he considered the

factors for determining whether attorneys’ fees are reasonable as set forth in the

Texas Supreme Court case in Arthur Andersen & Co. v. Perry Equip. Corp., 945

S.W.2d 812, 817-19 (Tex. 1997).3 3RR178. The first factor is the time and labor


       3
         The factors include: (1) the time and labor involved, the novelty and difficulty of
the questions involved, and the skill required to perform the legal services properly; (2)
the likelihood that the acceptance of the particular employment will preclude other
employment by the lawyer; (3) the fee customarily charged in the locality for similar
legal services; (4) the amount involved and the results obtained; (5) the time limitations
imposed by the client or the circumstances; (6) the nature and length of the professional
relationship with the client; (7) the experience, reputation, and ability of the lawyer or
lawyers performing the services; and (8) whether the fee is fixed or contingent on results


                                            14
involved in the case. Id. at 818. Mr. Elkin determined that this case involved

novel and difficult issues because the TCPA was a new statute. 3RR178. As a

result, there was little case authority for the lawyers to rely on to interpret its

provisions, many of which John Moore argued precluded its application in this

case. 3RR179. The absence of controlling case authority required the Bureau’s

lawyers to perform significant additional research and analysis to navigate the

statute.4 3RR179.

      Mr. Elkin further opined that the rates that Porter Hedges charged were

customary for Harris County and reasonable for the services the firm provided in

matters similar to this one. 3RR180. Porter Hedges charged the Bureau on an

hourly basis as opposed to a contingent fee. 3RR183. Further, the damages that

John Moore was seeking against the Bureau were significant. 3RR180. Mr. Elkin

believed that John Moore sought damages in the range of $10 to $20 million.

3RR180-81; 4RR30. If the Bureau lost the lawsuit, it could have gone bankrupt.

3RR181.




_______________________

obtained or uncertainty of collection before the legal services have been rendered. Id. at
818.
      4
        Mr. Elkin agreed that he was not precluded from accepting other employment
while working on this case, an issue relating to the second Andersen factor. 3RR180.



                                           15
      The Bureau’s lawyers also achieved a great result for their client. 3RR181;

4RR30. The Bureau prevailed in the litigation, entitling it to its attorneys’ fees by

statute. 3RR181. Porter Hedges has also had a long-standing relationship with the

Bureau, having served as its counsel for approximately 20 years.5 3RR182.

      In forming his opinion, Mr. Elkin also considered the level of experience of

the lawyers performing the work.        3RR183.     He testified that the level of

experience of the attorneys was appropriate for the tasks assigned.        3RR183.

Based upon all of these considerations, it was his opinion that $375,000 was a

reasonable fee for the services Porter Hedges provided to the Bureau over the

course of two years. 3RR183-84.

      John Moore’s lawyer, Lori Hood, also testified as an expert with regard to

the Bureau’s attorneys’ fees. Expressing her “dismay[] about [the firm’s] rates,”

John Moore attempted to discredit the reasonableness of the Bureau’s attorneys’

fees by making unfounded personal attacks and accusing the Bureau’s lawyers of

unethical conduct. 4RR45. Among other things, Ms. Hood maligned the Bureau’s

lawyers for allegedly billing for “calling me, and I know they weren’t,” 4RR46,

“hid[ing] time” by “bulk bill[ing],” 4RR55, “plagiarism” of work from Dallas


      5
         John Moore’s President, Don Valentine, approached Mr. Elkin in 2010 to
represent John Moore in pending litigation. 3RR182. The firm was unable to accept the
representation. 3RR183.



                                         16
lawyers in similar litigation, 4RR25-26, 72, improperly failing to task-bill, 4RR54,

71, and a “consistent…pattern of overbilling” and “overcharging.” 4RR156-59.

She also went on to criticize the Bureau’s lawyers for telling their client this was

“complex litigation” in order to “have higher rates,” 4RR89-90, disloyalty to their

client by not providing it with significant fee discounts, 3RR191; 4RR22, 163, and

failing to take shortcuts on research by relying only on an outdated version of

O’Connors Causes of Action. 3RR205-08; 4RR50.

       With no foundation at all, she also proclaimed that Porter Hedges engaged in

lawyer “trick[ery]” where secretaries charge for reviewing mail because the

invoices include “read and review” billing entries, 4RR58, and that its bills were

not reduced because Porter Hedges lawyers would “get called in to management”

for writing off time equating to more than 5% of the invoice. 4RR65. At closing

argument, Ms. Hood went on to express her “embarrass[ment] that someone in

[her] profession, which [she takes] very seriously, would bring invoices like this to

you-all….”6 4RR169.


       6
           Also, during closing argument, Ms. Hood asked the jury to do her a “small
favor” and decline to “reward a firm for overbilling on attorneys’ fees.” 4RR170. Texas
law is clear that “criticism, censure, or abuse of counsel are not permitted. Appeals to
passion and prejudice are improper, as are calls to punish a litigant for the acts of
counsel.” See Circle Y of Yoakum v. Blevins, 826 S.W.2d 753, 758 (Tex. App.—
Texarkana 1992, writ denied); TEX. R. CIV. P. 269(e). Anxious for an end to this serial
litigation, the Bureau elected not to seek a new trial for this highly improper and
incurable argument or challenge the jury’s failure to award attorneys’ fees for this appeal.



                                            17
      Ms. Hood also testified that in her opinion the Bureau’s fees were

unreasonable, and that John Moore had incurred fees in the amount of $165,000 in

prosecuting the lawsuit. 4RR108. She further testified that in similar litigation in

Dallas involving the Bureau, the defense lawyers had billed $190,000 defending

the lawsuit.    4RR54, 111.    However, she did not explain the similarities or

difference in the two lawsuits. In closing argument, Ms. Hood stated that the range

of fees the jury was to consider was “zero to $375,000,” 4RR154, 166, but

encouraged the jury to award no more than approximately $95,000 in answering

the questions in the court’s charge. 4RR168-69.

      Despite John Moore’s personal attacks and unsupported conclusions, the

jury awarded the Bureau $250,001.44 in attorneys’ fees.         CR108-115.     This

amount is precisely within the range of the evidence—approximately $100,000 less

than the Bureau requested and above the amount John Moore argued the Bureau

was entitled to receive. The attorneys’ fee award should be affirmed.

      B.       The Bureau’s Documentary Evidence Supports The Jury’s Verdict.
      John Moore vigorously contends that the redaction of confidential

information from the Bureau’s invoices, and “block billing” somehow preclude

any recovery of attorneys’ fees. App. Br. 6-20. Not only can John Moore not

point to a single case to support its claims, but its arguments are also contrary to

Texas Supreme Court precedent. These arguments should be summarily rejected.



                                        18
             1.     The Redaction of Privileged Information From Client
                   Invoices To Protect Confidentiality Is Entirely Appropriate.
      The invoices the Bureau offered at trial were redacted to protect privileged

and confidential information. 3RR134; 4RR28; DX3. The monthly invoices the

Bureau received, however, had no redacted information. 3RR134. Therefore, the

Bureau was able to review the complete invoices and to verify that the work

performed on its behalf was appropriate. 3RR134. The Bureau’s lawyer and

expert, Jeff Elkin, also reviewed and prepared the invoices, and was able to testify

to their contents without divulging confidential data. John Moore’s complaints as

to any redactions are unfounded, and were also not preserved.

                   a.     John Moore’s Failure To Object To Any Redaction of
                          Information Waived That Claim.
      Although John Moore stridently complains of the Bureau’s “heavy

redactions” of the invoices supporting the Bureau’s fee claim, it neglects to mention

that it never once objected to them. At no time did John Moore raise any complaint

about the removal of the confidential information during trial when the evidence

was offered. DX3; 3RR5 (admission of trial exhibits). Instead, it waited to raise

the issue post-verdict in a motion to disregard jury findings which it did not set for

hearing or submission. See FirstSupp.CR490-684; TEX. R. CIV. P. 301; Hines v.

Parks, 128 Tex. 289, 96 S.W.2d 970, 973 (1936) (the trial court cannot grant a




                                         19
motion to disregard jury findings absent notice). As a result, the trial court properly

declined to consider it. FirstSupp.CR 490-684; 5RR10, 22.

      The admission or exclusion of evidence is within the sound discretion of the

trial court. It is not error for the court to have admitted the redacted invoices when

John Moore did not object to their admission at the time the evidence was offered.

See Clark v. Trailways, Inc., 774 S.W.2d 644, 647 (Tex. 1989). John Moore’s

urging of the issue post-judgment in its motion for new trial was far too late, and

the complaint was waived. CR120-229; see TEX. R. EVID. 103(a)(1); TEX. R. APP.

P. 33.1; also see Jarvis v. Rocanville Corp., 298 S.W.3d 305, 320 (Tex. App.—

Dallas 2009, pet. denied) (plaintiff’s argument that redacted fee statements

prevented effective cross-examination waived when not presented in the trial court).

                   b.     Texas Law Recognizes That Redacted Fee Statements
                          Can Support A Fee Award.
      Even if John Moore had objected, the admission of the redacted invoices

would remain proper.       Texas courts have recognized that redacted billing

statements are sufficient to support an attorneys’ fee award as long as enough

information remains to demonstrate performance of the work. See Woodhaven

Partners, Ltd. v. Shamoun & Norman, LLP, 422 S.W.3d 821, 842-43 (Tex. App.—

Dallas 2014, no pet.) (“although heavily redacted, [the invoices] contained line-by-

line itemizations of the various charges together with brief descriptions of each

charge....significant information was provided regarding the activities conducted


                                         20
by appellee during the underlying litigation”). Sufficient detail was provided in the

invoices admitted in evidence here, and only strategical matters, issues researched,

and related confidential information was omitted. See DX3.

      John Moore offers no authority to support its view that the admission of these

fee statements was in error, nor does it attempt to explain why the redactions were

improper. See Jarvis, 298 S.W.3d at 320. It fails to cite any case where an

appellate court determined that the evidence of attorney’s fees was insufficient

because the contemporaneously prepared billing records were redacted.

      The Bureau’s lawyers provided detailed invoices to the Bureau on a monthly

basis describing the lawyers’ and paralegals’ services. 3RR134; DX3; also see

Dx6, Dx7, Dx9 (summaries). The invoices provide the date of the work, the name

of the person performing the work, the specific work performed, and the time spent

on the work. 3RR134. Different lawyers within the firm worked on the case, and

their rates varied depending on years in practice and specialization. 3RR138. Mr.

Elkin reviewed each invoice before it was forwarded to the Bureau for payment to

verify that the Bureau was properly billed, that the work was necessary, and that

the time spent on a particular task was reasonable. 3RR135. Occasionally, Mr.

Elkin would adjust the invoice to lower the billing for tasks on which he felt too

much time was spent. 3RR136.




                                         21
      Further, not only were the redacted invoices sufficient to allow the jury to

assess the work performed, but the testimony of Mr. Elkin also supported the fee

award. See Estate of Johnson, No. 04-11-00467-CV, 2012 WL 1940656, at *2-3

(Tex. App.—San Antonio May 30, 2012, no pet.) (mem. op., not designated for

publication) (“significant information was provided to the court in the redacted

billing statements, and when combined with the testimony of [the appellant’s]

attorneys, further information was not necessary….”); Gaughan v. Nat’l Cutting

Horse Ass’n, 351 S.W.3d 408, 422-24 (Tex. App.—Fort Worth 2011, pet. denied)

(affirming award of attorneys’ fees that was supported by redacted fee statements,

a summary of rates and fees charged, and the testimony of the appellee’s attorney

as to the reasonableness of the award); Watler v. Watler, No. 01-01-01038-CV,

2003 WL 1091765, at *4 (Tex. App.—Houston [1st Dist.] Mar. 13, 2003, no pet.)

(mem. op., not designated for publication) (finding no abuse of discretion in

court’s award of attorneys’ fees despite heavy redactions of invoices where

attorney testified as to the reasonableness of the fees).

      The jury was free to believe the testimony of Mr. Elkin that the fees

requested and reflected in the invoices were reasonable and necessary, despite any

redactions to the billing statements in evidence. See Sentinel Integrity Solutions,

Inc. v. Mistras Grp., Inc., 414 S.W.3d 911, 921-30 (Tex. App.—Houston [1st

Dist.] 2013, pet. denied) (affirming attorneys’ fee award supported by lawyers’



                                          22
testimony and redacted billing records).        John Moore’s complaint as to the

redaction of the invoices should be rejected.

             2.     The “Block Billing” In The Bureau’s Invoices Does Not
                    Preclude Any Recovery of Attorneys’ Fees.
      John Moore’s vigorous complaints about the so-called “block” or “bulk”

billing in Porter Hedges’s invoices is also meritless. App. Br. 6-20. John Moore

does not dispute that the invoices contained a concise description of the daily

services provided per lawyer, the name of the lawyer performing the work, the

time spent daily by lawyer on the collective tasks, and the amount billed to the

Bureau. 3RR244. Instead, John Moore contends that El Apple I, Ltd. v. Olivas,

370 S.W.3d 757, 763-65 (Tex. 2012), and Long v. Griffin, 442 S.W.3d 253, 255

(Tex. 2014) (per curiam) somehow preclude “block-billing” in attorneys’ fees

invoices. However, neither of these cases stand for the proposition that “task-

based billing” is a prerequisite to the recovery of attorneys’ fees.

      In El Apple, the Texas Supreme Court considered whether an award of

attorneys’ fees under the lodestar method could be affirmed when the only

evidence supporting those fees were attorney affidavits merely providing estimates

or generalities about the work performed and the time spent on the work. 370

S.W.3d at 763. The lawyers provided no documentary evidence or time records to

support their testimony, nor did they indicate the time spent on “a particular task or

category of tasks.” Id. (emphasis added). The Court concluded that “[w]ithout at


                                          23
least some indication of the time spent on various parts of the case,” the court had

no basis to conduct a review of the fee award. Id.

      The Court recognized that attorneys can testify as to the basic facts

underlying the lodestar, which are: (1) the nature of the work, (2) who performed

the services and their rate, (3) approximately when the services were performed,

and (4) the number of hours worked. Id. at 762–63 (internal citation omitted).

However, “contemporaneous billing records or other documentation recorded

reasonably close to the time when the work is performed” should be maintained to

support the testimony. Id. at 763. Nowhere does the Court mention itemizing each

task or hold that “block billing” is impermissible.

      Also, in Long, the only evidence of attorneys’ fees before the Court was an

affidavit supporting a fee application that stated in general terms the categories of

tasks performed, hourly rate, and hours spent on the work for a total fee. Long,

442 S.W.3d at 253-55. The affidavit broadly described the work as including

“extensive discovery, several pretrial hearings, [and] multiple summary judgment

motions,” among other general references. Id. at 255. However, no billing records

were submitted in support of the affidavit, and “without any evidence of the time

spent on specific tasks, the trial court had insufficient information to meaningfully

review the fee request.” Id. at 255. Like the El Apple case, nowhere does the Long

Court hold that “block billing” is impermissible—in fact, there were no invoices or



                                         24
“contemporaneous records” supporting the affidavit for the Court to even consider.

Id. at 255.

      The Texas Supreme Court has made it clear that time records or billing

statements are not the only means to satisfy the lodestar method of proving

attorneys’ fees. In City of Laredo v. Montano, 414 S.W.3d 731, 735–37 (Tex.

2013), the Court again stated that a lodestar fee can also be established through a

lawyer’s testimony as long as there are records available for the attorney to refer to

in providing his testimony. See also El Apple, 370 S.W.3d at 763 (noting attorneys

can testify as to their recollection of billing records). In Montano, 414 S.W.3d at

735-37, the court reversed a fee award to a lawyer who admitted at trial that he did

not keep time records or prepare invoices for his clients, and with that information

unavailable, could only provide estimates of the hours he spent on the case.

However, the Court affirmed a fee award to another lawyer who testified that she

kept track of her time, and that she had billed and been paid $25,000 for her work

through trial, despite the fact that she did not offer those records in evidence to

support her testimony. Id. at 737.

      The quality of the evidence proffered here goes well beyond that in El

Apple, Long, and Montano.            Here, the Bureau offered over 90 pages of

contemporaneously prepared billing records that specifically list the daily tasks and

amount of time performed by each attorney. DX3. John Moore’s criticism of the



                                          25
summaries the Bureau also offered in evidence ignores that the record includes the

actual invoices as well. App. Br. 11-12; Dx6, Dx7, Dx8. In addition, the jury

heard extensive testimony from the Bureau’s expert, Mr. Elkin, further explaining

the reasonableness and necessity of the fees incurred. These contemporaneous

billing records—along with extensive testimony from the Bureau’s lead counsel—

provide an abundance of support for the jury’s $250,001.44 fee award.

      Mr. Elkin also testified that the firm’s billing methods were standard for law

firms billing on an hourly basis and an accepted practice. 3RR177. He defined

“block billing” as defining the cumulative tasks each day for each individual

lawyer and the “total amount of time” for all those tasks, rather than providing the

time spent on each individual task separately. 3RR177, 196. He explained that

there is nothing inherently improper about block billing, and that most of his

clients are billed in that format. 3RR177-78. Consistent with Montano, 414

S.W.3d at 737, Mr. Elkin testified that the jury could also rely on his testimony as

evidence that the attorneys’ fees were reasonable. 3RR198 (“Because I can testify,

Ms. Hood, as I did, that at the time this was prepared, I reviewed it and made sure

that the time for that amount, those entries were reasonable….”).

      Moreover, despite John Moore’s complaints as to these invoices, many of

them provide the “task-based” descriptions that John Moore complains are lacking.

DX3 (see July 2013 through April 2014 invoices).           Porter Hedges’s billing



                                        26
software changed in May 2013, so that approximately half of the firm’s invoices

sent to the Bureau for almost a year provided specific information concerning time

spent on individualized tasks after that date. 3RR243; 4RR154. Because the

information that John Moore complains is absent in fact exists in a significant

number of these invoices, its arguments are baseless. DX3.

      C.     The Bureau’s Expert’s Testimony Is Legally Sufficient Evidence to
             Support the Fee Award.
      In an effort to excuse its failure to challenge the Bureau’s expert testimony,

John Moore asserts the meritless claim that Mr. Elkin’s testimony was supported

only by his ipse dixit and, therefore, is legally insufficient evidence. App. Br. 16-

20. This case is, however, nothing like the cases John Moore cites as support. In

those cases, the expert’s testimony was either based on assumptions that were

wholly unsupported by the facts or on assumptions that were actually incorrect.

See, e.g., Schaefer v. Tex. Employers’ Ins. Ass’n, 612 S.W.2d 199, 203-05 (Tex.

1980) (holding expert’s opinion based on assumptions was no evidence that

tuberculosis was caused by employment when expert did not know what type of

tuberculosis plaintiff had and whether that type was present in the soil where he

worked because the necessary testing had not been performed); Burroughs

Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995) (holding that expert

testimony that product caused plaintiff to suffered frostbite was no evidence of

causation when opinion was based on assumptions that were directly contradicted


                                         27
by the record). Additionally, John Moore’s cited cases do not involve redacted

documentary evidence; they involve a lack of supporting evidence or contradictory

evidence.   See id.    Moreover, none of John Moore’s cases involves expert

testimony on attorneys’ fees, much less expert testimony by lead counsel in the

case. See Montano, 414 S.W.3d at 735, 737 (rejecting claim that one attorney’s

testimony on fees was deficient when she did not list all the tasks she performed

and did not produce billing records, but did testify about her areas of responsibility

and did maintain billing records); cf. Garcia v. Gomez, 319 S.W.3d 638, 641 (Tex.

2010) (holding, in case where trial court awarded no fees, attorney’s testimony that

lacked specifics was some evidence of what a reasonable attorney’s fee might be

and noting that “[a]n attorney’s testimony about the reasonableness of his or her

own fees is not like other expert witness testimony. Although rooted in the

attorney’s experience and expertise, it also consists of the attorney’s personal

knowledge about the underlying work and its particular value to the client . . .”).

      In any event, Mr. Elkin’s testimony was not conclusory. It was not based on

critical but absent data. Nor was it based merely on his credentials. As discussed

above, Mr. Elkin’s testimony included a detailed explanation of the bases for his

conclusions and was well supported by documentation, such as the invoices, and

by his personal knowledge of the events in the case as lead counsel for the Bureau.

Contrary to John Moore’s claim, Mr. Elkin did not merely assume that the invoices



                                         28
supported his conclusions like the expert in Schaefer who assumed the existence of

facts although the relevant tests had not been performed. Mr. Elkin knew the

invoices supported his conclusions. He had reviewed those very invoices—more

than once. Additionally, those invoices, in redacted form, were in evidence. Even

if the invoices or other support were inadmissible or simply not admitted into

evidence, they could provide foundation for the expert testimony. See TEX. R.

EVID. 703 (facts or data relied upon by expert “need not be admissible in

evidence”); see also TEX. R. EVID. 705. Moreover, Mr. Elkin’s testimony was not

based on any inaccurate facts. Indeed, John Moore has not even claimed that a

single basis for Mr. Elkin’s testimony was incorrect.          To the contrary, John

Moore’s expert, Ms. Hood, attempted to undermine Mr. Elkin’s testimony merely

by offering her own suppositions and personal attacks untethered to any facts in the

record.

      D.       Alternatively, The Case Should Be Remanded To Allow The Court
               To Determine The Appropriate Fee Award.
          The evidence is legally sufficient to support the jury’s attorneys’ fee award.

Nonetheless, should this Court disagree, the case should be remanded to allow the

trial court to decide the amount of attorneys’ fees to be awarded to the Bureau.

The TCPA was enacted in order to provide a mechanism for prompt dismissal of

cases falling within its purview and to allow a prevailing party to recover its

attorneys’ fees. 2RR12 (The court: “[I]sn’t the point of [chapter 27] to avoid trials


                                           29
unless there has been found sufficient prima facie evidence of a claim?”). The

statute does not contemplate that the plaintiff would be entitled to a jury trial on

attorneys’ fees rather than an expeditious dismissal. See TEX. CIV. PRAC. & REM.

CODE ANN. §27.009(a)(1) (“If the court orders dismissal of a legal action under

this chapter, the court shall award to the moving party court costs, reasonable

attorney’s fees, and other expenses….”). The Bureau’s motion for fees supported

by its expert affidavit was presented to the trial court, but over the Bureau’s

objections, the court denied the motion and set the attorneys’ fee issue for trial.

See FirstSupp.CR149-352, 415-29, 450; 2RR4-25; cf. Breitling Oil & Gas Corp. v.

Petroleum Newspapers of Ak., LLC, No. 05-14-00299-CV, 2015 WL 1519667, at

*5 n.2 (Tex. App.—Dallas Apr. 1, 2015, no. pet. h.) (mem. op., not designated for

publication) (expressing no opinion on claim that the reasonableness of mandatory

attorneys’ fees under chapter 27 is a question for a jury because it was not

preserved).

       The award of attorneys’ fees under the TCPA is a matter for the trial court,

not a jury. See, e.g., Rehak Creative Servs., Inc. v. Witt, 404 S.W.3d 716, 723

(Tex. App.—Houston [14th Dist.] 2013, pet. denied) (noting that trial court

awarded attorneys’ fees to defendant following hearing on motion to dismiss);

Ramsey v. Lynch, No. 10-12-00198-CV, 2013 WL 1846886, at *3 (Tex. App.—

Waco May 2, 2013, no pet. h.) (affirming trial court’s award of attorneys’ fees



                                        30
which was based upon evidence presented at hearing on motion to dismiss). The

trial court’s decision to put the attorneys’ fee issue to a jury was improper, and if

this Court decides the judgment for attorneys’ fees is in error, the issue should be

remanded to allow the trial judge to make a fee determination.

II.   The Trial Court Properly Denied John Moore’s Untimely Attempts To
      Amend Its Pleadings and To Consolidate This Case With Its Second
      Lawsuit.
      John Moore’s claims that the trial court somehow abused its discretion in

precluding further pleading amendments to allow it to raise new claims and to join

additional parties, and by declining to consolidate this case with its new lawsuit,

are meritless. App. Br. 20-25. John Moore had a year after filing this suit to

amend its pleadings, but never attempted to do so until two months after this

Court’s decision that the case should be dismissed, and well after the expiration of

the pleading amendment and joinder deadlines in the docket control order.

Additionally, John Moore failed to properly preserve the consolidation issue by

setting its consolidation request for hearing. Even so, the claim is unfounded based

on John Moore’s delay in filing the requisite motion until post-trial. The trial court

properly rejected John Moore’s belated attempts for a second bite at the apple.

      A.     The Trial Court Properly Denied John Moore’s Untimely Request
             For A Pleading Amendment.
      The trial court’s decision to deny further pleading amendments was within

its sound discretion. John Moore had ample opportunity to amend its pleadings in


                                         31
the first case to timely plead the claims and name the parties it subsequently

included in the second lawsuit.

      This case was on file for over a year before John Moore attempted to amend

its pleadings at any time.    CR4-40.     Even though the Bureau had filed the

interlocutory appeal of the denial of its motion to dismiss, the trial proceedings

were not initially stayed. See id. at §51.014(b). The case continued in the trial

court while the appeal was pending, and John Moore opposed the Bureau’s request

for any stay of the case in the trial court. 3RR229. The parties engaged in

considerable written discovery during the appeal. 3RR151; 4RR105.

      The court’s original docket control order set a party joinder deadline of five

months after suit was filed, and a pleading amendment deadline nine months after

suit was filed.   FirstSupp.CR33.    John Moore did not meet either deadline.

However, the Bureau agreed to John Moore’s request to extend certain of the

docket control order deadlines nine months after John Moore filed suit.

SecondSupp.CR104-07. The trial court granted the parties’ agreed motion, and the

pleading amendment deadline was extended. FirstSupp.CR35-36. Even so, John

Moore did not amend its pleadings by the extended July 26, 2013 pleadings

deadline. Id. Further, John Moore never sought to have the party joinder deadline

extended as part of the agreed motion.




                                         32
      The Texas Legislature did not amend the TCPA to automatically stay

proceedings in the trial court while an interlocutory appeal proceeded until a year

after this suit was filed. See id. at §51.014(b); FirstSupp.CR5-23. The new statute

was not enacted until just one month before this Court decided the appeal. See

John Moore Servs., 441 S.W.3d at 345. Therefore, John Moore had a full year to

attempt to amend its petition or to seek leave to join new parties while the appeal

proceeded. Cf. James v. Calkins, 446 S.W.3d 135, 145 n.4 (Tex. App.—Houston

[1st Dist.] 2014, pet. filed) (noting that the appellees amended their petition several

times during the pendency of the interlocutory appeal pursuant to the TCPA). It

did not do so, nor did it seek relief from the automatic stay to file its amended

petition.

      Counsel for John Moore even testified at trial as to John Moore’s

recognition that it was obligated to continue prosecuting its case and comply with

court-ordered deadlines despite the interlocutory appeal:

                A: (By Ms. Hood): We had an order in place from the Court.
            It’s called a “Docket Control Order.” It’s a one-page order, and it
            sets out the dates that we’re supposed to have all these things done
            by.

                And so while it’s on appeal, it’s over here. It’s going off on
            this branch. We still have this branch to deal with because the
            Court had ordered us to get certain things done at a certain time,
            and that includes written discovery, expert designations, pleadings,
            and all those things.




                                           33
             So we couldn’t ignore the “Docket Control Order,” otherwise,
          we would have–there’s a potential we would have missed out on
          doing any discovery in the case, and then Mr. Valentine would
          have been very upset at me and probably would have fired me.

4RR104. Despite its recognition that these deadlines required compliance, John

Moore elected to disregard them. It made no attempt to amend its pleadings until

two months after the pleading deadline in the docket control order, more than two

months after this Court’s opinion was issued, and ten months after the joinder

deadline. CR4-40. John Moore then waited even longer to seek leave of court to

extend those deadlines once more. FirstSupp.CR44-49; SecondSupp.CR116-20.

      By the time John Moore sought its pleading amendments, the statutory stay

had been enacted, so the district court could not allow further pleading

amendments      until   this   Court’s    mandate     issued    on    April   4,   2014.7

FirstSupp.CR508-09. Even when the mandate issued, however, John Moore again

did not hasten to amend its pleadings or join new parties. Instead, it did nothing to

      7
         John Moore’s claim that the stay provision “applied by its own terms only to
appeals filed after its effective date” has no merit. App. Br. 23. Unless the Legislature
provides otherwise, amendments to procedural rules such as Section 51.014 are applied to
both pending and future cases. See TEX. CIV. PRAC. & REM. CODE § 51.014; Kinney v.
BCG Attorney Search, Inc., No. 03-12-00579-CV, 2014 WL 1432012, at *3-4 (Tex.
App.—Austin Apr. 11, 2014, pet. denied) (mem. op., not designated for publication)
(concluding 2013 amendment to Section 51.014 does not affect vested rights and is thus
applicable to pending appeal of denial of motion to dismiss under Section 27.003); see
also City of Austin v. Whittington, 384 S.W.3d 766, 790 (Tex. 2012) (“[P]rocedural and
remedial laws that do not affect vested rights should be enforced as they exist at the time
judgment is rendered.”); Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d
212, 222-23 (Tex. 2002).



                                            34
raise the issue during the period when the court again had the authority to consider

it. The judgment was entered four months later without John Moore urging its

motion for leave to amend at all. CR115-19.

      The trial court acted within its sound discretion in denying any further

pleading amendments given the automatic stay and John Moore’s lack of diligence.

John Moore had ample opportunity to add new claims and join new parties, both

before and after this Court’s opinion. John Moore’s delay in raising the issue

justified the trial court’s decision. See e.g. Perez v. Embree Constr. Group, Inc.,

228 S.W.3d 875, 883 (Tex. App.—Austin 2007, pet. denied) (trial court did not

abuse its discretion in striking amended pleading filed well after pleading

amendment deadline); Cherry v. McCall, 138 S.W.3d 35, 42-43 (Tex. App.—San

Antonio 2004, pet. denied) (the trial court did not abuse its discretion in striking

amended pleading filed post-trial).

      Even if John Moore had requested a pleading amendment after the mandate

issued, the trial court still would have been justified in denying the request. In

other cases involving similar interlocutory appeals under the TCPA, appellate

courts have recognized that the reversal of a denial of a motion to dismiss ends the

litigation, aside from the collateral issues of fees, costs, and sanctions. See e.g.

James, 446 S.W.3d at 150 (reversing denial of motion to dismiss and remanding

for further proceedings related to attorneys’ fees, costs, expenses, and sanctions



                                        35
and to order dismissal of lawsuit); Shipp v. Malouf, 439 S.W.3d 432, 442 (Tex.

App.—Dallas 2014, pet. denied) (reversing and rendering judgment of dismissal,

and remanding for award of fees and sanctions); Schimmel v. McGregor, 438

S.W.3d 847, 863 (Tex. App.—Houston [1st Dist.] 2014, pet. denied) (reversing

denial of motion to dismiss and remanding for further proceedings related to

attorneys’ fees, costs and expenses and to order dismissal of lawsuit). Allowing

John Moore to circumvent this Court’s resolution of this dispute by re-pleading

after the appeal is contrary to the appellate courts’ recognition in other cases that

these decisions are to be accorded finality.

      B.     The Trial Court Acted Within Its Sound Discretion In Declining To
             Consolidate This Case With The New Lawsuit.
      John Moore cannot demonstrate that the trial court abused its discretion in

declining to consolidate this case with its second lawsuit. Not only did John

Moore fail to properly preserve that complaint, but it also has no merit. The trial

court correctly declined to allow John Moore to effectively circumvent its prior

ruling declining its request to add new claims and join new parties.

             1.     John Moore Waived Its Challenge To The Alleged Failure To
                    Consolidate This Case With Its Second Lawsuit.
      John Moore failed to preserve its challenge to the trial court’s alleged failure

to consolidate this case with its second lawsuit. John Moore filed its second

lawsuit in December 2013, approximately 1½ years after filing this action, and



                                          36
after this Court decided that the trial court should have dismissed John Moore’s

claims. FirstSupp.CR552. When the mandate issued from this Court on April 4,

2014, John Moore did not quickly file its motion to consolidate its duplicative

lawsuits. Instead, it cursorily raised the issue in a response to the Bureau’s request

for attorneys’ fees, FirstSupp.CR374, yet conceded at the hearing on the Bureau’s

motion that the consolidation issue was not set for hearing. 2RR29-30. Instead,

John Moore waited four months—after the trial on attorneys’ fees and the filing of

the Bureau’s motion for the entry of a final judgment—to file its formal motion to

consolidate. FirstSupp.CR458-88, 490-684.

      And, even when John Moore finally filed its motion to consolidate, it again

neglected to ensure that it was properly before the court. John Moore’s motion to

consolidate was filed the day before the hearing on the Bureau’s motion for entry

of final judgment. FirstSupp.CR490-684. John Moore filed an accompanying

notice of oral hearing on the motion indicating it would be heard the following day.

FirstSupp.CR686.      However, the Bureau’s counsel objected to the court’s

entertaining the motion to consolidate during the hearing on the motion for entry of

judgment because it was never set on the court’s docket and John Moore failed to

provide the requisite notice. 5RR21; TEX. R. CIV. P. 21. John Moore’s counsel

even conceded at the hearing that it “[could] wait another day to talk about the




                                         37
consolidation issue.” 5RR8-9. The trial court sustained the Bureau’s objections to

the lack of notice on John Moore’s motions. 5RR22.

      The trial court then proceeded to enter final judgment. FirstSupp.CR688-92.

Contrary to John Moore’s assertions, the trial court did not “expressly consider and

reject[] [John Moore’s] consolidation arguments.” App. Br. 21. The record is

clear that the court declined to consider the consolidation motion because it was

not properly set for hearing. Although the court indicated that John Moore was

free to set its outstanding motions for hearing, it admonished John Moore that its

motion to consolidate would be “[met] with some skepticism from the Court.”

5RR27. Thereafter, John Moore did nothing to attempt to re-urge its motions or

set them for hearing.

      Because it failed to set its consolidation motions for hearing, John Moore did

not preserve the complaint for appellate review. The issue was never properly

presented to the trial court. See Lemons v. EMW Mfg. Co., 747 S.W.2d 372, 373

(Tex. 1988) (per curiam). John Moore’s complaint should be deemed waived.

             2.       John Moore’s Post-Verdict Consolidation Request Was
                      Untimely and An Attempt to Avoid The Earlier Denial of
                      Pleading Amendments.
      Even if the complaint over consolidation was preserved, however, it would

still be meritless.     John Moore’s delay in moving for consolidation provides

another basis for affirmance of the judgment. John Moore buried its first request in



                                         38
a reply brief and never set it on the court’s docket. FirstSupp.CR374. It then

waited until well after this Court’s ruling in the interlocutory appeal and the

subsequent attorneys’ fee trial to file a separate motion to consolidate.

FirstSupp.CR490-684. Even if the trial court had considered that motion, it would

have been justified in denying it because it was made post-trial. See Hunter v.

Andrews, 570 S.W.2d 590, 593 (Tex. Civ. App.—Waco 1978, no writ) (finding no

abuse of discretion in trial court’s decision declining consolidation of newly filed

case and action that was halfway through trial); see also South W. Prop. Trust, Inc.

v. Dallas Cty Flood Control Dist., 136 S.W.3d 1, 12 (Tex. App.—Dallas 2001, no

pet.) (trial court’s denial of motion to consolidate not an abuse of discretion in the

absence of showing of any harm).

      The denial of the motion to consolidate did not prejudice John Moore

because the case had ended. Any consolidation after the first case was dismissed

and the remaining issue of attorneys’ fees was decided would only have been

prejudicial to the Bureau. See In re Ethyl Corp., 975 S.W.2d 606, 610 (Tex. 1998).

If there has been any claim splitting or unnecessary “increased burden on the

parties and the courts,” it is only because John Moore has caused it through the

filing of serial litigation. App. Br. 22, 24. John Moore concedes that the new

lawsuit was filed to circumvent the trial court’s denial of further pleading

amendments. See supra p. 1 n.1.



                                         39
       Further, the trial court entered an order dismissing John Moore’s second

lawsuit only days later.8 FirstSupp.CR693-94. Thus, consolidation would not

have allowed John Moore to continue to pursue any of its legal theories. As a

result, the lack of consolidation could not have harmed John Moore. Regardless,

this case had been resolved, so it would not have been appropriate to consolidate

the two cases.        The trial court’s decision to enter final judgment without

consolidating this matter with the second case was correct. For all these reasons,

the trial court’s decision should be affirmed.

                           CONCLUSION AND PRAYER

       For all these reasons, Appellee The Better Business Bureau of Metropolitan

Houston, Inc. respectfully requests that the trial court’s judgment be affirmed.

Alternatively, the case should be remanded for the trial judge to determine

attorneys’ fees, and for such other and further relief to which it may show itself to

be justly entitled.

Dated: May 20, 2015.




       8
         Because the trial court did not sign the order granting the motion to dismiss
within the requisite statutory time period, the motion was deemed overruled by operation
of law, and the Bureau filed an interlocutory appeal in the second case as well.



                                          40
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 Appellee The Better
   Business Bureau of Metropolitan,
   Houston, Inc.




 41
                         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 20th day of May 2015, a true and correct
copy of the foregoing was served on the following counsel of record by U.S. first
class mail and by electronic delivery as follows:

         Douglas Pritchett, Jr.
         Johnson Trent West & Taylor LLP
         919 Milam Street, Suite 1700
         Houston, Texas 77002

         Lori Hood
         Baker, Donelson, Bearman, Caldwell & Berkowitz,
         P.C.
         1301 McKinney St., Suite 3700
         Houston, Texas 77010


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

                                          /s/ Lauren B. Harris




                                        42
                     CERTIFICATE OF COMPLIANCE

       This brief complies with the type-volume limitation of Texas Rule of

Appellate Procedure 9.4(i)(2)(B) because this brief contains 9,084 words,

excluding the parts of the brief exempted by Texas Rule of Appellate Procedure

9.4(i)(1).

       This brief complies with the typeface requirements of Texas Rule of

Appellate Procedure 9.4(e) and the 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 or

larger.



                                         /s/ Lauren B. Harris
                                         Lauren B. Harris




                                        43
APPENDIX TAB A: TEX. CIV. PRAC & REM. CODE ANN. §51.014
§   51.014. Appeal from Interlocutory Order
  (a) A person may appeal from an interlocutory order of a district
court, county court at law, statutory probate court, or county court thaC:
     (1) appoints a receiver or trustee;
     (2) overrules a motion to vacate an order that appoints a receiver or
  trustee;
     (3) certifies or refuses to certify a class in a suit brought under Rule
  42 of the Texas Rules of Civil Procedure;
     (4) giants or refuses a temporary injunction or grants or overrules ~t
  motion to dissolve a temporary injunction as provided by Chapter 63:
     (5) denies a motion for summary judgment that is based on an
   assertion of immunity by an individual who is an officer or employ$
   of the state or a political subdivision of the state;
      (6) denies a motion for summary judgment that is based in whole or:
   in part upon a claim against or defense by a member of the e1ectrOLil&~
   or print media, acting in such capacity, or a person whose commut~k
   cation appears in or is published by the electronic or print mcclitij:
   arising under the free speech or free press clause of the First AmeiuIi~
   ment to the United States Constitution, or Article I, Section 8, of tIiØ
   Texas Constitution, or Chapter 73;
       (7) grants or denies the special appearance of a defendant unck~~
    Rule 120a, Texas Rules of Civil Procedure, except in a suit brougft~
    under the Family Code;
                                     446
APPEALS                                                            § 51.014
Cli. 51
    (8) grants or denies a plea to the jurisdiction by a governmental
  unit as that term is defined in Section 101.001;
    (9) denies all or part of tile relief sought by a motion under Section
  74. 351(b), except that an appeal may not be taken from an order
  granting an extension under Section 74.35 1;
    (10) grants relief sought by a motion under Section 74.351(l);
    (11) &nies amotion to dismiss filed under Section 90.007; or
              Text of subsec. i’affl2), as added by Acts 2013,
                     83rd Leg., cli. 44 (FIB. 200), § I
    (12) denies a motion for summary judgment filed by an electric
  utility regarding liability in a suit subject to Section 75.0022.
              Text of subsec. ~a,~(12), as added by Acts 2013,
                   83rd Leg,, oh. 1042 (H.B. 2935), § 4
     (12) denies a motion to dismiss filed under Section 27.003.
              Text of subsec. (b), as amended by Acts 2013,
                   83rd Leg., oh. 916 (I-LB. 1366), § I
   ~b) An interlocutory appeal under Subsection (a), other than an ap
peal under Subsection (a)(4) or in a suit brought under the Family Code,
stays tile commencement of a trial in the trial court pending resolution
of the appeal. An interlocutory appeal under Subsection (a)(3), (5), or
(8) also stays all other proceedings in tile trial court pending resolution
of that appeal.
          1   Text of subsec. (h,), as amended by Acts 2013,
                 - 83rd Leg., oh. 1042 (H.B. 2935), § 4
   (b) Ap interlocutory appeal under Subsection (a), other than an ap
peal under Subsection (a)(4), stays the commencement of a trial in the
trial court pending resolution of the appeal. An interlocutory appeal
under Subsection (a)(3), (5), (8), or (12) also stays all other proceedings
in the trial court pending resolution of that appeal.
   (c) A denial of a motion for summary judgment, special appearance,
or plea to the jurisdiction described by Subsection (a)(5), (7), or (8) is
not subject to the automatic stay under Subsection (b) unless the
motion, special appearance, or plea to the jurisdiction is filed and
requested for submission or hearing before the trial court not later than
(he later of:
      (1) a date set by the trial court in a scheduling order entered under
   the ‘Texas Rules of Civil Procedure; or
      (2) the 180th day after the date thp defendant files:
         ~A) the original answer;
                                    447
§ 5 1.014                                      TRiAL, JUDGMENT & APPEAL
                                                                   TIUe 2
         (B) the first other responsive pleading to the plaintiff’s petition;
    or
         (C) if the plaintiff files an amended pleading that alleges a new
      cause of action against the defendant and the defendant is able to
      raise a defense to the new cause of action under Subsection (a)(5),
      (7), or (8), the responsive pleading that raises that defense.
   (d) On a party’s motion or on its own initiative, a trial court in a civil
action may, by written order, permit an appeal from an order that is not
otherwise appealable if:
      (1) the order to be appealed involves a controlling question of law
   as to which there is a substantial ground for difference of opinion;
   and
      (2) an immediate appeal from the order may materially advance the
   ultimate termination of the litigation.
   (cl—i) Subsection (d) does not apply to an action brought under the
Family Code.
   (e) An appeal under Subsection Cd) does not stay proceedings in the
trial court unless:
      (1) the parties agree to a stay; or
      (2) the trial or appellate court orders a stay of the proceedings
   pending appeal.
   (0 An appellate court may accept an appeal permitted by Subsection
(d) if the appealing party, not later than the 15th day after the date the
trial court signs the order to be appealed, files in the court of appeals
having appellate jurisdiction over the action an application for interloc
utory appeal explaining why an appeal is warranted under Subsection
(d). If the court of appeals accepts the appeal, the appeal is governed
by the procedures in the Texas Rules of Appellate Procedure for pursu
ing an accelerated appeal. The date the court of appeals enters the
order accepting the appeal starts the time applicable to filing the notice
of appeal.
Acts 1985, 69th Leg., ch. 959, § 1, elF. Sept. 1, 1985. Amended by Acts 1987,
70th Leg., ch. 167, § 3.10, elf. Sept 1, 1987; Acts 1989. 71st Leg., ch. 915, § 1,
eff. June 14, 1989; Acts 1993, 73rd Leg., ch. 855, § 1, elf. Sept. 1, 1993; Acts
1997, 75th Leg., ch. 1296, § 1, eff. June 20, 1997; Acts 2001, 77th Leg., cli.
1389, § 1, elf. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 204, § 1.03, elf. Sept. I,
2003; Acts 2005, 79th Leg.. ch. 97, § 5, elI. Sept. 1, 2005; Acts 2005, 79th Leg,,
ch. 1051, §~ 1, 2, elf. June 18, 2005; Acts 2011, 82nd Leg., ch. 203 (N.E. 274),
§ 3.01, eff. Sept. 1,2011; Acts 2013, 83rd Leg., ch. 44 (H3. 200), § 1, elf. May
16, 2013; Acts 2013, 83rd Leg.. cli. 604 (S.B. 1083), § 1, elf. Sept. 1, 2013;
Acts 2013, 83rd Leg., ch. 916 (H.B. 1366), § 1, elf. Sept. 1, 2013; Acts 2013,
83rd Leg., ch. 961 (HE. 1874), § 1, elf. Sept 1, 2013; Acts 2013, 83rd Leg., cli.
1042 (H.B. 2935), § 4, eff. June 14,2013.
                                        448
APPENDIX TAB B: Act of May 24, 2013, 83d Leg., R.S., H.B. 2935, § 6.
   83rd LEGJSLATUR~nEouLAR SESSION
                                                                                        Cli. 1042,   §- 4

                                               CHAPTER 1042
                                                H.B. No. 2935
                                                     AN ACT
  relating to a legal action Involving the exercise of certain constitutional rights.
         Be it enacted by the Legislature of the State of Texas:
         SECTION 1. Section 27.004, Givil Practice and Remedies Code, is amended to read as
    follows:
        Sec. 27.004. HEARING. (a) A hearing on a motion under Section 27.003 must be set not
   later than the aUth (30th] day after the date of service of the motion unless the docket
   conditions of the court require a later hearing, upon a showing of good cause, or by
   agreement of the j’wiies, but z~ no eve-zt shall the hearing occici’ mo;e than 00 days after
   service of the motion wirier Section 27.003, except as provided by Subsection tc~.
       (b) In the event that the court cannot hold a. hearing in the time requtrecl by Subsection
   (a), the court may take judicial notice that the crnrrt~s docket conditions -required a hearing
   at a- late,’ date, but in -no event shall the hearing occur more than 00 days after service of the
  motion under Section, 2 7.003, except as provided by Subsection (ca.
       (c) If the co-wri aliows’ctjscoue,’y wzde, Section 27.006(b), the coupt may extend the hearing
  ciate to allow discovery uder that subsection, but in -no event s/ia/i tli.e hearing occwr more
  than 120 clays after the service of the motion under Section 27.003.                              -
      SECTION 2. Section 27.005, Clvii Practice and Remedies Code, is amended byiidding
  Subsection Cd) to read as follows:
      (ci,) Notwit/ista-na-imig the provisions of Subsection (c), the court shall dismiss a legal action
  against the moving party if the moving party establishes by a preponderance of the evidence
  each essential element of a valid defense to the non-nw vant~s claim,
      SECTION 3. Section 27.010, Civil Practice and Remedies Code, is amended by amending
 Subsection (b) and adding Subsection Cd) to read as follows:
     (5) This chapter does not 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 inswrance services,
 or a commercial transaction in which the intended audience is an actual or potential buyer or
 customer.
     ed.) This chapte;’ does not apply to a legal action brought under the Inswunce code or
 arMing out of an inswra-nce contract.
    SECTION 4. Sections SI.014(a) and (5), Civil Practice and Remedies Code, are amended
to read as follows:
    Ca) A person may appeal from an interlocutory order of a district court, county court at
law, or county court that:
        (1) appoints a receiver or trustee;
        (2) overrules a motion to vacate an order that appoints a receiver or trustee;
        (3) certifies or refuses to certify a class in a suit brought under Rule 42 of the Texas~
   Rules of Civil Procedure;
        (4) grants or refuses a temporary injunction or grants or overrules a motion to dissolve a
   temporary injunction as provided by Chapter 65;
       (5) denies a motion for summary judgment that is based on an assertion of immunity by
   an individual who is an officer or employee of the state or a political subdivision of the
   state;
       (6) denies a motion for summary judgment that is based in whole or in part upon a claim
  against or defense by a member of the electronic or print media, acting in such capacity, or
  a person whose communication appears in or is published by the electronic or print media,
  arising under the free speech 01’ free press clause of the First Amendment to the United
  States Constitution, or Article I, Section 8, of the Texas Constitution, or Chapter 78;
                                                   2501
Cli. 1042, § 4                                 S3rcl LEGISLATURE—REGULAR SESSION

     (7) grants or denies the special appearance of a defendant uncle” Rule 120a, Texas Rules
  of Civil Procedure, except in a suit brought under the Family Code;
     (8) grants or denies a plea to the jurisdiction by a governmental unit as that term is
  defined in Section 101.001;
     (9) denies all or part of the relief sought by a motion nuder Section 74.351(h), except that
  an appeal may not be taken from an order granting an extension under Section 74.351;
     (10) grants relief sought by a motion under Section 74.351(1); [or]
     (11) denies a motion to dismiss filed under Section 90.007; or
     (12) denies a motion to disn,iss filed under Section 97.00..?.
  (b) An interlocutory appeal under Subsection (a), other than an appeal under Subsection
(a)(4). stays the commencement of a trial in the trial court pending resolution of the appeal,
An interlocutory appeal under Subsection (a)ç3), (5), [or] (8), or (12) also stays all other
proceedings in the trial court pending resolution of that appeal.
   SECTION 5. Section 27.008(c), Civil Practice und Remedies Code, is repealed.
   SECTION 6. This Act takes effect immediately if it receives a vote of two-thirds of all the
members elected to each house, as provided by Section 89, Article III, Texas Constitution. If
this Act does not receive the vote necessary for immediate effect, this Act takes effect
September 1, 201:3.
   Passed by the House on May 2, 20-13: Yeas 145, Nays 2, 2 present, not voting: the
         House concurred in Senate amendments to H.B. No. 2935 on May 24, 2013: Yeas
         135, Nays 3,2 present, not voting: passed by the Senate, with amendments, on May
         22, 2013: Yeas 31, Nays 0.
   Approved Juno 14,2013.
   Effective June 14, 2013.



                                       CHAPTER 1043

                                         1-1.13. No. 2972
                                              AN ACT
relating to exempting premiums for certain insurance covering stored or in-transit baled cotton from
surplus lines Insurance premium taxes.
   Be it enacted by the Legislatwrc of the State of Texas:
  SECTION 1. Section 225.004, Insurance Code, is amended by adding Subsection (g) to
read as follows:
   (g) Prenflu,ns oti risks or eZpOSlfltS ze.uclc~’ ocean ntcn’hie insurance coverage qf stored or
 in-transit baled cottom for export are not subject to the tax imposed. by this ch.drpt(fl~
   SECTION 2. The change in law made by this Act does not affect tax liability accruing
 before the effective date of this Act. That liability continues in effect as if this Act had not
 been enacted, and the former law is continued in effect for the collection of taxes due anti fot:
 civil and criminal enforcement of the liability for those taxes.
   SECTION 3. This Act takes effect January 1, 2014.
   Passed by the House on May 10, 2013: Yeas 139, Nays 0,2 present. not young; passed
       by the Senate on May 22, 2013: Yeas 30, Nays 1.
   Approved June 14, 2013.
    Effective January 1,2014.
                                                2502
APPENDIX TAB C: Timeline of Procedural Events
                 TIMELINE OF PROCEDURAL EVENTS




                 2012
                 June
                              6-18-12: John Moore
                                files its first case.
                 July


                 August
 JM does not
     join new
parties before
                 September
   the joinder               10-3-12: TCPA motion to
     deadline.                   dismiss is denied.
                 October
                                10-22-12: Interlocutory
                                     appeal filed.
                 November
                               11-16-12: Deadline
                                to join new parties
                 December

                 2013
                 January                                  JM does not amend
                                                          its petition before
                                                          the original
                                                          pleading deadline.
                 February


                 March


                 April
                              4-26-13: Original
                              pleading deadline
                 May               passes.




                 4938932v1
                      2013
JM does not seek
    relief from the   June          6-14-13: TCPA amended to
 stay and leave to                   include an automatic stay
         amend its                 during an interlocutory appeal.
 pleadings before     July         7-16-13: The First Court of
      the extended
                                    Appeals issues its opinion.
           pleading
          deadline.
                      August
                                     7-26-13: Extended pleading
                                     amendment deadline passes.
                      September
                                      9-27-13: Amended
                      October            petition filed.
                                      11-1-13: The trial court grants the
                      November        motion for reconsideration, strikes
                                       John Moore’s amended petition,
                                         and vacates its prior orders.
                      December
                                      12-19-13: John Moore
                                      files a second lawsuit.
                      2014

                      January

                      February

                      March

                      April           4-4-14: The mandate issues.


  JM does not         May
       move to
   consolidate
 after the stay       June
  is lifted, but
waits until the                   8-4-14: The Bureau moves for
                      July               final judgment.
    day before
    judgment.                         8-7-14: John Moore files
                      August            motion to consolidate.

                                    8-8-14: Final judgment in
                                          the first case


                      4938932v1
