                                                                              ACCEPTED
                                                                         01-14-00687-CV
                                                               FIRST COURT OF APPEALS
                                                                       HOUSTON, TEXAS
                                                                     1/2/2015 9:15:33 PM
                                                                    CHRISTOPHER PRINE
                  No. 01-14-00687-CV                                              CLERK



                        In The
                 First Court of Appeals                 FILED IN
                                                 1st COURT OF APPEALS
                    Houston, Texas                   HOUSTON, TEXAS
                                                 1/2/2015 9:15:33 PM
 THE BETTER BUSINESS BUREAU OF              METROPOLITAN
                                                 CHRISTOPHER A. PRINE
                                                         Clerk
  HOUSTON, INC., THE BETTER BUSINESS BUREAU OF
METROPOLITAN HOUSTON EDUCATION FOUNDATION,
DAN PARSONS, CHRIS CHURCH, CHURCH ENTERPRISES,
    INC., GARY MILLESON, RONALD N. MCMILLAN,
D’ARTAGNAN BEBEL, MARK GOLDIE, CHARLIE HOLLIS,
             AND STEVEN LUFBURROW,
                                Appellants
                           v.

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

       On appeal from the 269th District Court of
       Harris County, Texas, cause no. 2013-76215

          REPLY BRIEF OF APPELLANTS

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


          ORAL ARGUMENT REQUESTED
                                          TABLE OF CONTENTS

                                                                                                              Page No.

Table of Contents ...................................................................................................... ii

Table of Authorities ..................................................................................................iv

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

Objections to Appellees’ Brief...................................................................................2

Argument....................................................................................................................4

         I.        The Denial of the Motion to Dismiss by Operation of Law Was
                   Erroneous...............................................................................................4

                   A.       The TCPA applies to this lawsuit despite John Moore’s
                            efforts to relitigate decided issues...............................................4

                            1.        First Attempted Relitigation: Inapplicable Statutory
                                      Exemption.........................................................................5

                            2.        Second Attempted Relitigation: The Waived and
                                      Invalid Unconstitutionality Argument..............................6

                            3.        Third Attempted Relitigation: The Non-Existent
                                      Government Participation Requirement ...........................8

                   B.       Res judicata and collateral estoppel require the dismissal of
                            John Moore’s claims ...................................................................9

                   C.       John Moore has not met its burden to establish by clear and
                            specific evidence a prima facie cause for the essential
                            elements of its claims................................................................14

                            1.        Claims Abandoned or Waived........................................14

                            2.        Breach of Contract..........................................................14

                            3.        DTPA ..............................................................................15

                            4.        Conspiracy ......................................................................16



                                                             ii
                           5.       Antitrust ..........................................................................16

                                    a.        Elements Common to All Antitrust Claims .........17

                                              (i)      Market Power and Relevant Market ..........17

                                              (ii)     Harm to Competition .................................19

                                    b.        Restraint of Trade.................................................20

                                              (i)      Tying ..........................................................21

                                              (ii)     Boycott .......................................................23

                                    c.        Attempt to Monopolize ........................................27

                                              (i)      Predatory or Anticompetitive Conduct ......27

                                              (ii)     Dangerous Probability of Success .............28

         II.      The Trial Court Erred in Overruling the Houston BBB’s
                  Objections to John Moore’s Evidence, but Did Not Err in
                  Sustaining Objections..........................................................................30

Conclusion and Prayer .............................................................................................32

Certificate of Service ...............................................................................................34

Certificate of Compliance ........................................................................................35




                                                          iii
                                    TABLE OF AUTHORITIES

                                                                                                        Page(s)
CASES
Allied Tube & Conduit Corp. v. Indian Head, Inc.,
       486 U.S. 492 (1988).......................................................................................20

American Society of Mechanical Engineers, Inc. v. Hydrolevel Corp.,
     456 U.S. 556 (1982).......................................................................................25

Anderson Prod. Inc. v. Koch Oil Co.,
     929 S.W.2d 416 (Tex. 1996) .........................................................................30

Aquatherm Indus., Inc. v. Fla. Power & Light Co.,
     145 F.3d 1258 (11th Cir. 1998) .....................................................................23

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) ...passim

Black v. Jackson,
      82 S.W.3d 44 (Tex. App.—Tyler 2002, no pet.).............................................7

Choate v. San Antonio & A.P. Ry. Co.,
     44 S.W. 69 (Tex. 1898) ...................................................................................7

Combined Law Enforcement Ass’n of Tex. v. Sheffield,
     No. 03-13-00105-CV, 2014 WL 411672 (Tex. App.—Austin
     Jan. 31, 2014, no pet. h.)..................................................................................6

Consolidated Metal Prods., Inc. v. Am. Petroleum Instit.,
     846 F.2d 284 (5th Cir. 1988) .......................................................21, 23, 24, 25

DeSantis v. Wackenhut Corp.,
     793 S.W.2d 670 (Tex. 1990) .........................................................................23

Direct Commercial Funding, Inc. v. Beacon Hill Estates, LLC,
      407 S.W.3d 398 (Tex. App.—Houston [14th Dist.] 2013, no pet.) ..............30

Federal Deposit Ins. Corp. v. Lenk,
     361 S.W.3d 602 (Tex. 2012) .........................................................................17




                                                        iv
Golan v. Pingel Enter., Inc.,
     310 F.3d 1360 (Fed. Cir. 2002) .....................................................................19

Hammond v. Ashe,
    131 S.W. 539 (Tex. 1910) ...............................................................................7

Hand v. Dean Witter Reynolds, Inc.,
     889 S.W.2d 483 (Tex. App.—Houston [14th Dist.] 1994, writ denied).......16

Jardin v. Marklund,
      431 S.W.3d 765 (Tex. App.—Houston [14th Dist.] 2014, no pet. h.) ............9

Kinney v. BCG Attorney Search, Inc.,
     No. 03-12-00579-CV, 2014 WL 1432012 (Tex. App.—Austin
     Apr. 11, 2014, pet filed) (mem. op.)................................................................9

Lee v. Pennington,
       830 So. 2d 1037 (La. Ct. App. 2002) ..............................................................8

McCraw v. Maris,
    828 S.W.2d 756 (Tex. 1992) .........................................................................31

Menasha Corp. v. News Am. Mkting. In-Store, Inc.,
     354 F.3d 661 (7th Cir. 2004) ...................................................................17, 18

Olympia Co. v. Celotex Corp.,
     597 F. Supp. 285 (E.D. La. 1984), aff’d, 771 F.2d 888 (5th Cir. 1985)........29

Owens v. Ridgeway,
     395 S.W.2d 704 (Tex. App.—Amarillo 1965, writ ref’d n.r.e.) .....................7

Primrose Drilling Ventures Ltd. v. Nealwell Drilling Ltd.,
     No. 14-98-00618-CV, 2000 WL 890622 (Tex. App.—
     Houston [14th Dist.] July 6, 2000, no pet.) ...................................................17

Rebel Oil Co. v. Atlantic Richfield Co.,
      51 F.3d 1421 (9th Cir. 1995) ...................................................................18, 27

RTLC AG Prods., Inc. v. Treatment Equip. Co.,
     195 S.W.3d 824 (Tex. App.—Dallas 2006, no pet.) ..............................passim

Schimmel v. McGregor,
     438 S.W.3d 847 (Tex. App.—Houston [1st Dist.] 2014, no pet. h.)...............8


                                                     v
Scurlock Oil Co. v. Smithwick,
      724 S.W.2d 1 (Tex. 1986) .............................................................................13

Spectrum Sports, Inc. v. McQuillan,
      506 U.S. 447 (1993).................................................................................17, 18

Sysco Food Servs., Inc. v. Trapnell,
      890 S.W.2d 796 (Tex. 1994) .........................................................................12

Texas Disposal Sys. Landfill, Inc. v. Waste Mgmt. Holdings, Inc.,
      219 S.W.3d 563 (Tex. App.—Austin 2007, pet. denied) ..............................28

Times Herald Printing Co. v. A.H. Belo Corp.,
      820 S.W.2d 206 (Tex. App.—Houston [14th Dist.] 1991, no writ)..............20

Van Dyke v. Boswell, O’Toole, Davis & Pickering,
     697 S.W.2d 381 (Tex. 1985) .........................................................................12

Water Craft Mgmt. L.L.C. v. Mercury Marine,
     361 F. Supp. 2d 518 (M.D. La. 2004), aff’d, 457 F.3d 484 (5th Cir. 2006) .19

RULES AND STATUTES
TEX. BUS. & COM. CODE ANN. §17.45(1) .......................................................... 15-16

TEX. BUS. & COM. CODE ANN. §17.45(4) ................................................................15

TEX. CIV. PRAC. & REM. CODE ANN. § 27.001..................................................passim

TEX. CIV. PRAC. & REM. CODE ANN. § 27.003.........................................................12

TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c) ....................................................14

TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(d) ......................................................9

TEX. CIV. PRAC. & REM. CODE ANN. §27.010(b).......................................................5

TEX. CIV. PRAC. & REM. CODE. ANN. §51.014(a)(12) ....................................... 10-11

TEX. CIV. PRAC. & REM. CODE ANN. §51.014(b).....................................................11

TEX. R. APP. P. 38.1(g), (i).........................................................................................2

TEX. R. APP. P. 44.1(a).............................................................................................31


                                                         vi
TEX. R. EVID. 103(a) ................................................................................................31

ARTICLES
Kimberly L. King, An Antitrust Primer for Trade Ass’n Counsel, 75 Fla.
B. J. 26, 26 (2001)....................................................................................................20

MISCELLANEOUS
Section of Antitrust Law, Model Jury Instructions to Civil Antitrust Cases at
B-57-59 (2005 ed.)...................................................................................................24

SENATE COMM. ON STATE AFFAIRS, BILL ANALYSIS, TEX. H.B. 2973,
82ND LEG., RS (2011).................................................................................................9

WEBSTER’S THIRD NEW INTERNAT’L DICTIONARY, Unabridged, accessed
Dec. 15, 2014, http://unabridged.merriam-webster.com ...........................................3




                                                          vii
                                 INTRODUCTION
       John Moore’s Response Brief illustrates that this is an empty and duplicative

lawsuit employed as another weapon in John Moore’s campaign of harassment

against the Houston BBB. John Moore does not contest that the Houston BBB met

its burden to establish that the TCPA applies to this lawsuit. But, it tries to escape

dismissal by challenging issues that have been previously decided against it or

waived by it, revealing that this lawsuit is John Moore’s attempt at a “do-over” of

the First Legal Action.       Indeed, it does not dispute that the Houston BBB

established the elements of res judicata and collateral estoppel. It only seeks to

avoid those doctrines by citing inapposite cases and wrongly blaming others for its

filing this serial lawsuit.

       Even if this suit were not precluded, because the TCPA applies, the burden

shifted to John Moore to establish each essential element of its claims by clear and

specific evidence. It wholly failed to meet that burden in the trial court and its

Response Brief fares no better. Its Brief is a series of complaints, conclusions, and

twisted reasoning. It cites scant applicable authority and declares many facts by

fiat. Unable to establish a prima facie case for the theories it advanced in the trial

court, John Moore raises a number of different theories on appeal. In addition to

being improper, John Moore fails to establish those theories either. The denial of




                                          1
the Houston BBB’s motion to dismiss by operation of law is erroneous. The

motion should be granted as the trial court subsequently ordered.

                   OBJECTIONS TO APPELLEES’ BRIEF
      Many of the statements John Moore presents as facts in its Response Brief

emanate largely from the assumptions of John Moore’s president, Valentine, or the

creativity of John Moore’s counsel. In some instances, John Moore’s purported

facts are outright misrepresentations—direct or by insinuation—of the record.

None of these statements can serve as the requisite clear and specific prima facie

evidence of John Moore’s claims necessary to avoid dismissal.

      In contravention of the Rules, John Moore makes numerous assertions

without any citation to the record. See TEX. R. APP. P. 38.1(g), (i); see, e.g.,

Response Br. pp.1-2 (“But Valentine’s successes threatened other people ...”).

Many of John Moore’s other assertions are supported by rejected evidence. For

instance, the bulk of John Moore’s citations to the record are to the affidavit of

Valentine and many of the Houston BBB’s objections to Valentine’s affidavit were

sustained. 2Supp.CR3-4, 8. See, e.g., Response Br. p.19 (citing CR1211 although

objections were sustained to all the text on the page); 23 (citing CR1208 although

objections were sustained to ¶70 which contains the cited quotes); see CR541, 544-

47, 2Supp.CR4.




                                         2
       Moreover, even if not the subject of a sustained objection, many other

 assertions in Valentine’s affidavit are conclusory statements and facially not within

 Valentine’s knowledge and, thus, are not competent evidence to support the so-

 called “facts.” See Better Bus. Bureau of Metro. Houston, Inc. v. John Moore

 Servs., Inc., 441 S.W.3d 345, 355 (Tex. App.—Houston [1st Dist.] 2013, pet.

 denied) (“Conclusory statements are not probative and accordingly will not suffice

 to establish a prima facie case.”). For example, John Moore asserts that “the

 Houston BBB has the power to create or destroy significant consumer trust in a

 business,” but cites only Valentine’s affidavit, which simply states that conclusion.

 Response Br. p.13; CR1214¶92.1

       Finally, some of John Moore’s statements misrepresent the record. For

example, in an effort to bolster its feeble antitrust claims, John Moore repeatedly

calls the Houston BBB a “trade association.” See, e.g., Response Br. pp.7-8. A

“trade association,” however, is “an association of tradesmen, businessmen, or

manufacturers in a particular trade or industry for the protection and advancement

of their common interests.”       WEBSTER’S THIRD NEW INTERNAT’L DICTIONARY,

Unabridged, accessed Dec. 15, 2014, http://unabridged.merriam-webster.com


 1
         Volume II of the Clerk’s Record was filed under seal. Because counsel did not
 have access to that volume, they attempted to recreate it. Consequently, citations to that
 volume (CR1123-2309) may be off by a page or two despite the Houston BBB’s best
 efforts at accuracy.



                                             3
(emphasis added). In contrast, the Houston BBB is a non-profit organization with

members from myriad industries and a mission of promoting ethical business

practices.2 See generally CR122¶3.

                                     ARGUMENT

 I.    The Denial of the Motion to Dismiss by Operation of Law Was
       Erroneous.
       As the trial court correctly recognized in the order it signed after the motion

 to dismiss was overruled by operation of law, the Houston BBB’s motion to

 dismiss should be granted.

       A.     The TCPA applies to this lawsuit despite John Moore’s efforts to
              relitigate decided issues.
       The Houston BBB met its burden to establish that this lawsuit is based on,

 relates to, or is in response to the Houston BBB’s exercise of its right of free

 speech and that the TCPA applies. John Moore offers no argument on this point.

 Instead, as part of its effort to relitigate the First Legal Action, John Moore tries to

 avoid the effect of the TCPA by raising issues that it failed to preserve or that have




 2
        Additionally, John Moore insinuates that the Houston BBB dismissed its Federal
 Lawsuit to avoid a pending motion to dismiss. Response Br. p.4 (citing CR1211). Even
 if Valentine’s affidavit supported these facts (see CR1211) and the Houston BBB’s
 objections to the cited testimony had not been sustained (CR545, 2Supp.CR4), John
 Moore’s statement is misleading. The Federal Lawsuit was dismissed because Valentine
 signed a declaration swearing that John Moore ceased using the Houston BBB’s name
 and logo, thereby agreeing to the very relief sought by the Houston BBB. CR125¶21.



                                            4
been decided against it. Waived and settled points cannot thwart the application of

the TCPA here.

            1.     First Attempted       Relitigation:    Inapplicable    Statutory
                   Exemption
      John Moore first raises an issue that was decided against it in the First Legal

Action—application of the TCPA exemption in §27.010(b).             That exemption

provides that the TCPA does not apply to actions “brought against a person

primarily engaged in the business of selling … goods or services, if the statement

or conduct arises out of the sale … of goods, services, or … a commercial

transaction in which the intended audience is an actual or potential buyer or

customer.” TEX. CIV. PRAC. & REM. CODE ANN. §27.010(b). This Court has

concluded that “the exemption does not apply” to these facts. John Moore Servs.,

441 S.W.3d at 354 (determining that the intended audience of the Houston BBB’s

ratings and statements about John Moore is the consuming public).

      John Moore’s attempts to evade the Court’s conclusion are unavailing

because it still fails to offer evidence that (1) the Houston BBB is “primarily

engaged in the business of selling … goods and services,” and (2) the speech

complained of arises out of the sale of those goods or services or a commercial

transaction in which the intended audience is actual or potential buyers or

customers. See TEX. CIV. PRAC. & REM. CODE ANN. §27.010(b) (emphasis added).

John Moore’s discussion of the Houston BBB’s revenues does not establish that its


                                         5
primary activity is the business of selling goods and services.        Its extended

narrative about the Houston BBB’s purported business plan is irrelevant

conjecture.    To the extent John Moore provides sources, it chiefly cites an

inadmissible document of unknown origin3 which actually undermines its

arguments by showing the Houston BBB does not sell ratings and other services to

consumers. See CR2122 (BBBs provide consumers data, “educational information

and expert advice … free of charge”).

              2.   Second Attempted Relitigation: The Waived and Invalid
                   Unconstitutionality Argument
      Although it waived the issue of the TCPA’s constitutionality in the First

Legal Action, John Moore seeks to reargue it here. See John Moore Servs. 441

S.W.3d at 352 n.1 (“… that argument was waived due to failure to present it to the

trial court.”). Not only did John Moore waive the point, but the Austin Court of

Appeals considered the constitutionality argument John Moore advances here—

and rejected it. See Combined Law Enforcement Ass’n of Tex. v. Sheffield, No. 03-

13-00105-CV, 2014 WL 411672, at *10 (Tex. App.—Austin Jan. 31, 2014, no pet.

h.) (“find[ing] no provision in the TCPA that purports to impose a higher standard

of proof than would be required at trial,” “much less one that violates the open-


3
       The cited document, CR2116-30, is hearsay and was not authenticated as it was
not prepared by any defendant. CR569. The Houston BBB’s objections to the document
should have been sustained. See Appellants’ Br. pp.52-53; infra pp.30-31.



                                         6
courts provision”). Also, John Moore incorrectly claims that drawing reasonable

inferences from the evidence is prohibited. This Court has not taken that position.

In the First Legal Action, this Court stated “‘prima facie’ evidence is ‘the

minimum quantum of evidence necessary to support a rational inference that the

allegation of fact is true.’” John Moore Servs., 441 S.W.3d at 354-55 (citation

omitted) (emphasis added). Regardless, John Moore has not identified a single

reasonable inference from the evidence that would meet its burden here.

      Further, John Moore has not shown that the TCPA violates the right to trial

by jury. It cites inapposite Texas cases that do not involve motions to dismiss and,

in fact, predate the TCPA by four to ten decades. See Response Br. pp.54-55

(citing Owens v. Ridgeway, 395 S.W.2d 704, 706 (Tex. App.—Amarillo 1965, writ

ref’d n.r.e.); Choate v. San Antonio & A.P. Ry. Co., 44 S.W. 69, 69 (Tex. 1898);

Hammond v. Ashe, 131 S.W. 539 (Tex. 1910)). Two of John Moore’s cases

concern completely unrelated circumstances (such as the propriety of an instructed

verdict and a discussion of the role of appellate courts in reviewing facts) and

another found there was no right to a jury trial on the relevant issues at all.4 See id.




4
       John Moore also ignores that the right to a trial by jury is not absolute, but
regulated by various laws and rules. See, e.g., Black v. Jackson, 82 S.W.3d 44, 55 (Tex.
App.—Tyler 2002, no pet.) (affirming dismissal of plaintiff’s claims for failure to satisfy
a procedural requirement implemented to limit frivolous lawsuits).



                                            7
      Lacking any applicable Texas authority, John Moore cites equally

inapplicable foreign authority. It cites a New Hampshire case, but as revealed by

its own discussion of the case, New Hampshire’s statute is different than the

TCPA.    See Response Br. p.55 (explaining that New Hampshire’s procedure

required plaintiff to show a probability of prevailing on its claims). The Louisiana

case it cites follows a similar standard. See Lee v. Pennington, 830 So. 2d 1037,

1043 (La. Ct. App. 2002). Citing a California case, John Moore acknowledges that

anti-SLAPP statutes that do not require the trial court to weigh the evidence, but

require the non-movant to make a prima facie case that it will prevail, are

constitutional. Response Br. p.56.

               3.   Third  Attempted      Relitigation: The                 Non-Existent
                    Government Participation Requirement
      John Moore also seeks to reargue its claim that the TCPA only applies to

government participation.      This Court squarely rejected that argument.         John

Moore Servs., 441 S.W. at 353; see Schimmel v. McGregor, 438 S.W.3d 847, 858

(Tex. App.—Houston [1st Dist.] 2014, no pet. h.) (“None of [the] statutory

definitions includes a requirement that the communications be made to a particular

individual or entity, such as a governmental body, to constitute protected

conduct.”).5    Additionally, the Fourteenth Court of Appeals has held that the


5
      The legislative history of the statute supports this Court’s conclusion:



                                            8
statute’s reference to “participation in government” merely means “in the public

interest.” Jardin v. Marklund, 431 S.W.3d 765, 771-72 (Tex. App.—Houston

[14th Dist.] 2014, no pet. h.). This Court has determined that the Houston BBB’s

review and letter grade concerning John Moore is a communication in the public

interest. John Moore Servs., 441 S.W.3d at 353-54.

      B.     Res judicata and collateral estoppel require the dismissal of John
             Moore’s claims.
      The Houston BBB established by a preponderance of the evidence each

essential element of its defenses of res judicata and collateral estoppel. See TEX.

CIV. PRAC. & REM. CODE ANN. § 27.005(d). John Moore had the burden to

overcome the defenses or face dismissal. See id.; Kinney v. BCG Attorney Search,

Inc., No. 03-12-00579-CV, 2014 WL 1432012, at *8 (Tex. App.—Austin Apr. 11,

2014, pet filed) (mem. op.). It did not meet its burden. It does not even argue that

the elements of res judicata and collateral estoppel are not fully satisfied here.

      Instead, John Moore argues that res judicata and collateral estoppel should

not be applied because the Houston BBB purportedly caused John Moore’s claims
____________________
             Whether petitioning the government, writing a traditional
             news article, or commenting on the quality of a business,
             involvement of citizens in the exchange of idea[s] benefits
             our society. Yet frivolous lawsuits aimed at silencing those
             involved in these activities are becoming more common, and
             are a threat to the growth of our democracy….
SENATE COMM. ON STATE AFFAIRS, BILL ANALYSIS, TEX. H.B. 2973, 82nd Leg., RS
(2011) (emphasis added).



                                           9
to be split by “improperly” seeking to enforce the statutory stay. Response Br.

pp.36-37. As a fallback, John Moore contends that giving preclusive effect to the

First Legal Action would be unfair. Id. pp.43-44. John Moore’s arguments lack

any support in the record or the law and should be rejected.

      First, John Moore is solely responsible for waiting to file its amended

petition in the First Legal Action until September 27, 2013–over fifteen months

after it filed its original petition, four months after the parties exchanged written

discovery and documents, and ten weeks after this Court’s July 16, 2013 decision

ruling against John Moore. CR137-64; RR19; John Moore Servs., 441 S.W.3d

345. John Moore simply argues that its claims in this case are based on discovery

obtained while the interlocutory appeal was pending in the First Legal Action.

Response Br. p.44. Not only did John Moore have the discovery for four months

before filing its amended petition, but its own pleadings belie its argument. The

factual allegations in the amended petition varied little from the original, revealing

that the alleged bases for the antitrust and other claims were already known.

      Second, before John Moore filed its amended pleading, legislation amending

the TCPA and Texas Civil Practice and Remedies Code §51.014(b) became

effective and provided for an automatic stay of all trial court proceedings during

the pendency of an interlocutory appeal of a denial of a motion to dismiss filed

under the TCPA. See CR11; TEX. CIV. PRAC. & REM. CODE. ANN. §51.014(a)(12),



                                         10
(b) (West 2013). John Moore’s contention that the automatic stay provision “did

not apply by its own terms” is specious. See Response at 37-39 (emphasis added).6

Essentially, John Moore argues that the automatic stay provision in section

51.014(b) was never “triggered” because the Houston BBB’s interlocutory appeal

in the First Legal Action was not brought under section 51.014(a)(12) as required

by section 51.014(b), but instead was brought under section 27.008 of the TCPA.

Resp. p.39 (“To trigger the automatic stay, the interlocutory appeal must be

brought under subsection 51.014(a)(12).”).          A cursory reading of the statute,

however, reveals the error in John Moore’s contention.

       Section 51.014(b) provides for a stay of all trial court proceedings when an

interlocutory appeal is brought under, among others, section 51.014(a)(12). TEX.

CIV. PRAC. & REM. CODE ANN. §51.014(b).                Section 51.014(a)(12) expressly

allows for an interlocutory appeal from an order of a district court that “denies a

motion to dismiss filed under Section 27.003.” Id. at §51.014(a)(12). There can be

no dispute that the Houston BBB’s interlocutory appeal in the First Legal Action

was from the trial court’s order denying the Houston BBB’s motion to dismiss

filed under Section 27.003 of the TCPA. Id. at §27.003.



6
       John Moore does not argue that the legislative amendment should not have been
applied to then-pending cases like the First Legal Action, only that it was not “triggered.”




                                            11
      Thus, the automatic stay provided in Section 51.014(b), as amended, was, in

fact, “triggered” because the Houston BBB’s interlocutory appeal was from the

denial of its motion to dismiss filed under Section 27.003 as required by section

51.014(a)(12). Tellingly, John Moore cites no legal authority to the contrary.7

      Third, none of the cases cited by John Moore support the notion that a

defendant’s proper exercise of its procedural rights in one lawsuit forecloses the

application of res judicata or collateral estoppel in a subsequent lawsuit. For

example, in Van Dyke v. Boswell, O’Toole, Davis & Pickering, 697 S.W.2d 381

(Tex. 1985), res judicata did not apply, not because a defendant advanced its

procedural rights, but because the court severed a claim and a counterclaim. Id. at

383-84.

      Likewise, John Moore was not “legally precluded from bringing the claims

in a single lawsuit” like the plaintiff in Sysco Food Servs., Inc. v. Trapnell, 890

S.W.2d 796, 804 (Tex. 1994). Response Br. p.41. In Sysco, a federal procedural

requirement prevented the plaintiff from bringing its state claims in federal court.

Id. at 799. Thus, collateral estoppel did not apply because the jurisdictional issues

were beyond the parties’ control. Id. at 805 (declining to apply collateral estoppel


7
       John Moore makes passing references to the trial court’s denial of the motion to
consolidate the First Legal Action with this case—that John Moore admits it filed to
avoid preclusion. Response Br. pp.36, 41-42. Yet, it offers nothing to show that the
Houston BBB’s opposition to the motion or the district court’s denial of it was improper.



                                           12
to a plaintiff “whose procedural predicament is not of their own making”). Here,

contrarily, John Moore’s predicament is entirely the result of its own apparent

gamesmanship. There was no procedural or jurisdictional bar to filing its claims

before the stay. John Moore chose to file its amended petition after it lost the

appeal.

      Finally, John Moore argues that it is unfair to give preclusive effect “to a

prior judgment when there are ‘differences in the quality or extensiveness of the

procedures followed…’” Response Br. p.43 (citing Scurlock Oil Co. v. Smithwick,

724 S.W.2d 1, 7 (Tex. 1986)). However, Scurlock concerned the preclusive effect

of a judgment obtained pursuant to a Mary Carter agreement and is, thus, wholly

inapposite. Id. at 7. Here, the posture and applicable standards in this lawsuit and

the First Legal Action are the same. Both cases involve an appeal from a denial of

a motion to dismiss under the TCPA. Although John Moore asserts that the claims

in this lawsuit were “raised in an entirely different procedural posture” than in the

First Legal Action because it obtained more discovery when the interlocutory

appeal was pending, it fails to cite any authority for the proposition that additional

discovery constitutes an “entirely different procedural posture.”       Id. pp.43-44.

Moreover, since the facts alleged in this lawsuit are essentially the same as those

alleged in the original petition in the First Legal Action, if any truly new facts

came to light through discovery, John Moore did not plead them.



                                         13
      In short, John Moore has only itself to blame for waiting to file an amended

pleading at a point when all trial court proceedings in the First Legal Action were

stayed. Now that the First Legal Action has been reduced to a Final Judgment

against John Moore, res judicata and collateral estoppel should prevent John

Moore from relitigating those same claims.

      C.     John Moore has not met its burden to establish by clear and
             specific evidence a prima facie case for the essential elements of its
             claims.
      Even if the Houston BBB had not established its preclusion defenses,

because the TCPA applies, the burden shifted to John Moore to establish by clear

and specific evidence a prima facie case for each essential element of its claims.

See TEX. CIV. PRAC. & REM. CODE ANN. §27.005(c). John Moore wholly failed to

meet its burden.

             1.    Claims Abandoned or Waived
      John Moore has abandoned or waived its claims for fraud, fraud in the

inducement, unjust enrichment, detrimental reliance, and equitable remedies, and

makes no effort to establish a prima facie case for their essential elements.

             2.    Breach of Contract
      John Moore has fallen woefully short of its burden to establish a prima facie

case of each essential element of breach of contract by clear and specific evidence.

For example, John Moore fails to identify any evidence that satisfies every element

of an enforceable contract between the parties. In support of its allegation that it

                                         14
was given an indefinite right to advertise its receipt of the Award of Excellence,

John Moore cites one page from the minutes of a meeting of the Houston BBB’s

membership committee. Response Br. p.32 (citing CR1275). The citation actually

undermines John Moore’s claim because it reflects that “a recipient can advertise

[receipt of the award] indefinitely for as long as they maintain a satisfactory status

with the BBB.” CR1275 (emphasis added).

      John Moore also fails to mention, much less challenge, the legal flaws in its

breach of contract theory previously recognized by this Court. See John Moore

Servs., 441 S.W.3d at 361.

             3.    DTPA
      John Moore’s effort to establish a prima facie case for the elements of a

DTPA claim by clear and specific evidence also fails. Even if this Court had not

already disapproved of John Moore’s DTPA theory,8 John Moore cannot even

establish the first element—that it is a “consumer” who sought to acquire a good or

service by purchase or lease. See TEX. BUS. & COM. CODE ANN. §17.45(4). In

support of its contention that the Award of Excellence is a recognition that includes

the trademark of the Houston BBB and is, therefore, a “good,” John Moore offers

no factual or legal authority. Response Br. p.34. And, in fact, the DTPA defines

“goods” as “tangible chattels or real property purchased or leased for use.” TEX.

8
      John Moore Servs., 441 S.W.3d at 359.



                                         15
BUS. & COM. CODE ANN. §17.45(1). Intangibles, like trademarks, are not “goods.”

See Hand v. Dean Witter Reynolds, Inc., 889 S.W.2d 483, 497 (Tex. App.—

Houston [14th Dist.] 1994, writ denied). Thus, John Moore has not established the

threshold element that it is a consumer under the DTPA.

             4.    Conspiracy
      John Moore does not dispute that it abandoned its claim for conspiracy to

monopolize. It points only to the elements of common law conspiracy, but oddly

includes them in the antitrust section of its brief. Response Br. p.29. Nevertheless,

John Moore offers nothing to establish a prima facie case for every essential

element of civil conspiracy. See Appellants’ Br. pp.49-50. John Moore only

argues a preliminary point that the individual defendants acted on their own behalf

rather than in their roles as officers and directors of the Houston BBB—yet fails to

establish that with clear and specific evidence. See Response Br. pp.30-32.

             5.    Antitrust
      John Moore did not establish a prima facie case for each of the elements of

the antitrust theories it sponsored in the trial court in response to the motion to

dismiss (see Appellants’ Br. pp.34-48) and fails to do so in its Response Brief.

John Moore has also impermissibly altered its antitrust theories on appeal, such as

by arguing different relevant markets were restrained or the subject of




                                         16
monopolization attempts9 and claiming different products were tied.10 See Federal

Deposit Ins. Corp. v. Lenk, 361 S.W.3d 602, 604 (Tex. 2012) (appellate court may

not consider arguments not presented to trial court); Primrose Drilling Ventures

Ltd. v. Nealwell Drilling Ltd., No. 14-98-00618-CV, 2000 WL 890622, at *8 (Tex.

App.—Houston [14th Dist.] July 6, 2000, no pet.) (party is limited on appeal to

theories presented below). Regardless, John Moore has not established every

element of its revised antitrust arguments either.

                   a.     Elements Common to All Antitrust Claims
      As an initial matter, John Moore failed to establish a prima facie case for at

least two elements common to all of its antitrust claims—market power and injury

to competition.

      (i) Market Power and Relevant Market: John Moore’s antitrust claims

require evidence of market power. See, e.g., Spectrum Sports, Inc. v. McQuillan,

506 U.S. 447, 456 (1993) (attempted monopolization); Menasha Corp. v. News

9
  E.g., compare CR151-56 (alleging markets including home repair and remodeling
services, trade membership, and business ratings/consumer advocacy) with Response Br.
pp.7-8, 17, 20, 27, 29 (arguing markets including home repair and renovation market in
the Houston metropolitan area, marketplace of trust, consumer trust, membership in
similar trade organizations, mediation of consumer complaints, and consumer dispute
resolution in Houston).
10
  E.g., compare CR153-56 (alleging unbiased ratings as tying product and Houston BBB
membership as tied product and also entry into residential services market as tying
product and participation in ratings/consumer advocacy market as tied product) with
Response Br. pp.7-10 (arguing consumer trust as tying product and
membership/participation exclusively in Houston BBB programs as tied product).



                                         17
Am. Mkting. In-Store, Inc., 354 F.3d 661, 663 (7th Cir. 2004) (“every suit based on

the Rule of Reason”); RTLC AG Prods., Inc. v. Treatment Equip. Co., 195 S.W.3d

824, 831 (Tex. App.—Dallas 2006, no pet.) (tying).           Market power may be

demonstrated by direct or circumstantial evidence.        Rebel Oil Co. v. Atlantic

Richfield Co., 51 F.3d 1421, 1434 (9th Cir. 1995). Here, John Moore offered no

direct evidence of any defendant’s alleged market power, like restricted output and

supra-competitive prices.     See id.    Likewise, it did not offer circumstantial

evidence of such market power through evidence of a defendant’s dominant share

of the relevant market and the existence of high barriers to entry.11 See id.

      John Moore has not even defined any plausible market, much less a proper

relevant market, in which any defendant allegedly restrained trade or attempted to

monopolize—a threshold step akin to identifying the pie before determining

anyone’s share of it. See id. (“Without a definition of the relevant market, it is

impossible to determine market share.”); see also Spectrum Sports, 506 U.S. at 456

(“[w]ithout a definition of [the relevant] market there is no way to measure [the

defendant’s] ability to lessen or destroy competition”). Nor has John Moore even

alleged what share of the relevant market any defendant purportedly possesses.

Casting about for a viable theory, John Moore references myriad potential relevant


11
      While John Moore offers a number of arguments about market power in
connection with its tying claim, its effort widely misses the mark. See infra pp.21-23.



                                          18
markets, improperly naming different relevant markets on appeal than it did in the

trial court.   See CR151-59; CR1183-87.         Yet, it fails to define or offer any

evidence—lay testimony, documents, or expert testimony—establishing a single

one of the relevant markets it bandies about. See Golan v. Pingel Enter., Inc., 310

F.3d 1360, 1369-70 (Fed. Cir. 2002) (affirming dismissal of antitrust claims for

failure to establish prima facie case when plaintiff offered only conclusory

allegations of relevant market and conclusory declarations, failed to proffer

supporting evidence, and presented no expert testimony); Water Craft Mgmt.

L.L.C. v. Mercury Marine, 361 F. Supp. 2d 518, 543 (M.D. La. 2004), aff’d, 457

F.3d 484 (5th Cir. 2006) (recognizing that the Eleventh and Fifth Circuits have

held that defining relevant market requires expert testimony identifying the

relevant product and geographic markets).12

      (ii) Harm to Competition: John Moore failed to establish the requisite harm

to the market.     See Appellants’ Brief pp.37-38.         Its “evidence” focuses on

Parsons’s alleged vendetta against Valentine and the Houston BBB’s alleged desire

to drive John Moore out of business. But, John Moore offers no evidence that

12
       The absurdity of John Moore’s contention is underscored by the fact that John
Moore concedes that relevant markets it references are “competitive” and, thus, the
Houston BBB could not have market power in them. See, e.g., CR142¶21 (“the
household services market is … saturated and competitive in Houston and the
surrounding areas”); CR152¶59 (listing Houston BBB competitors); CR1214¶92
(Valentine averring “[t]his puts the Houston BBB in competition with other trust services
such as Angie’s List, Yelp, and Consumer Business Review”).



                                           19
competition generally, rather than a single competitor, was harmed. See RTLC,

195 S.W.3d at 830 (recognizing antitrust laws protect competition, not

competitors).

                    b.     Restraint of Trade
      John Moore alleges that it pled per se, not rule of reason, claims. Response

Br. pp.6-7. However, it offers no evidence or applicable authority to show that the

per se analysis should apply. It cites a Florida Bar Journal article, but the article is

not binding authority, does not say what John Moore claims it does, and is

irrelevant because it relates to trade associations. Id. (citing Kimberly L. King, An

Antitrust Primer for Trade Ass’n Counsel, 75 Fla. B. J. 26, 26 (2001)). John

Moore also cites case law that is inapplicable, even contrary, to its position. Id.

pp.14-15 (citing Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492,

497-99, 501, 507 (1988) (considering application of Noerr-Pennington immunity

to a conspiracy to exclude plaintiff’s product from the private standard-setting

body’s safety code and recognizing the application of the rule of reason to such

cases)).13 Regardless, John Moore has not established its claims under either

standard.



13
       John Moore’s position is, in fact, unsupported. See RTLC, 195 S.W.3d at 830
(recognizing that the Supreme Court has rejected the assumption that tying constitutes a
per se violation); Times Herald Printing Co. v. A.H. Belo Corp., 820 S.W.2d 206, 212
(Tex. App.—Houston [14th Dist.] 1991, no writ) (concerted action on non-price


                                          20
                            (i)     Tying
       John Moore has not established each essential element of the tying claims it

pled. Appellants’ Br. pp.44-46. Its effort to salvage its claim by altering its

theories on appeal—even if permissible—would remain unavailing because it has

not established a prima facie case for the elements of any tying theory.

       On appeal, for example, John Moore claims that the tying product is the

“market place of trust” or “consumer trust in the Houston BBB trademark”

(Response Br. pp.7, 9-10) and the tied product is “membership or participation in

the Houston BBB’s programs to the exclusion of other, similar trade organizations

or its own, in house consumer relations staff.” Id. p.10. John Moore offers no

authority or evidence for the notion that a concept, like trust, can be a tying

product. Nor has it established that there are two separate products capable of

being tied.

       Additionally, John Moore fails to establish that the Houston BBB possesses

sufficient market power over the tying product to restrain competition for the tied

product. It simply pronounces that the Houston BBB “has power in the Houston
____________________
restrictions must be judged under the rule of reason); see also Consolidated Metal Prods.,
Inc. v. Am. Petroleum Instit., 846 F.2d 284, 292 (5th Cir. 1988) (recognizing
“touchstone” of per se illegality is that plaintiff’s customers or suppliers “had, as a group,
agreed or been forced” to stop doing business with plaintiff and holding that “a trade
association that evaluates products and issues opinions, without constraining others to
follow its recommendations, does not per se violate section 1 when, for whatever reason,
it fails to evaluate a product favorably”).



                                             21
metropolitan area market for consumer trust,” which is akin to claiming that

ADT—the home security company—has market power over “peace of mind.” See

id. p.12. John Moore offers no authority for the notion that anyone can have

market power over a concept and no evidence that the Houston BBB has market

power over “consumer trust.”

      John Moore claims the Houston BBB has power “to coerce” participation in

its programs, but does not offer clear and specific evidence that it or others were

coerced to purchase any Houston BBB “product”—much less the tied “product”—

only Valentine’s conclusory statement that businesses that did not participate in the

Houston BBB’s dispute resolution system received low grades. Response Br. p.11

(citing CR1199); see also RTLC, 195 S.W.3d at 831 (requiring actual coercion for

tying violation).   It also offers only Valentine’s unsupported and conclusory

statement that the Houston BBB has “the power to create or destroy significant

consumer trust in a business.” Response Br. p.13; see supra p.3.

      Finally, John Moore concedes that the tie must affect a substantial volume of

commerce.     Response Br. p.9; see RTLC, 195 S.W.2d at 830 (requiring

anticompetitive effects in the tied market). John Moore has not identified any




                                         22
evidence that the alleged tie had an adverse effect on the (undefined) relevant

market for the tied product.14

                           (ii)   Boycott
      In the trial court and in its Response Brief, John Moore failed to establish a

prima facie case for each of the essential elements for any permutation of its

boycott claim. See Appellants’ Br. pp.38-43. It has not even shown the requisite

existence of an agreement. See Aquatherm Indus., Inc. v. Fla. Power & Light Co.,

145 F.3d 1258, 1262 (11th Cir. 1998) (explaining an agreement between two or

more persons is “fundamental”). Nor has it established that any alleged agreement

unreasonably restrained trade in a defined relevant market.            See DeSantis v.

Wackenhut Corp., 793 S.W.2d 670, 688 (Tex. 1990) (requiring proof that

agreement had adverse effect on competition in the relevant market); see also

Consolidated     Metal,    846    F.2d   at      294-96   (comparing    standard-setting

organization’s approval to Consumer Reports ratings and the Good Housekeeping

seal of approval and determining that the importance of organization’s certification

was not enough to prove that denial of certification was a restraint of trade: “[e]ven


14
   John Moore’s other arguments are unavailing as well. See Response Br. pp.12-13.
John Moore cites no authority for the notion that the Houston BBB’s annual revenues,
alone, establish sufficient market power over “consumer trust.” It also cites no authority
for the proposition that one entity’s market power can be established by another entity’s
loss of business particularly where, as here, John Moore’s poor record of customer
service is an equally probable cause. See generally CR1369-1800.



                                            23
if user reliance gives API significant influence over the market, that influence may

enhance, not reduce, competition”).

      John Moore claims it alleged a “horizontal non-price restraint” (Response

Br. p.14), but it offers no argument or evidence that there was a conspiracy and

that the alleged conspiracy was among direct competitors and, thus, horizontal. It

cites elements based on its unfounded “horizontal” allegation, yet did not establish

a prima facie case for them. See id. pp.16-17 (citing Section of Antitrust Law,

Model Jury Instructions to Civil Antitrust Cases at B-57-59 (2005 ed.) for elements

of conspiracy involving direct competitors in trade association).

      For instance, John Moore asserts it must prove that the Houston BBB

possesses market power or has unique access to a business element necessary for

effective competition in the market for home repair and renovation services, so

membership in the Houston BBB is necessary for John Moore to compete

effectively in that market. Id. p.16. Again, John Moore provides no evidence of

market power. Likewise, it offers nothing to establish that the Houston BBB has

unique access to a business element that is necessary for effective competition. It

merely discusses the alleged unfairness of the Houston BBB’s rating and the

importance—not necessity—of a positive rating and then concludes, without any

evidentiary support, that without Houston BBB membership, John Moore cannot

compete effectively. Id. pp.17-19. This is insufficient. See Consolidated Metal,



                                        24
846 F.2d at 292 (determining that influential organization’s certification was not

“necessary” to plaintiff’s ability to compete when plaintiff could sell product

without certification).

      John Moore’s cited case, American Society of Mechanical Engineers, Inc. v.

Hydrolevel Corp., 456 U.S. 556 (1982), does not hold otherwise.         That case

considered whether a standard-setting professional society—considered an extra-

governmental regulatory body because its codes were incorporated into federal and

state regulations—should be liable for the acts of one member who manipulated

the system to obtain an official letter disapproving a competitor’s product. Id. at

559, 562, 570. John Moore claims the conduct here was identical, but it offers no

evidence or explanation for how the Houston BBB’s subjective rating based, in

part, on hundreds of consumer complaints concerning John Moore is akin to a

direct conspiracy involving an agent’s abuse of a code-making process or why the

Houston BBB should be treated like an “extra-governmental regulatory body”

whose ratings have the force of law.

      Additionally, John Moore acknowledges it must establish that the Houston

BBB’s denial or termination of John Moore’s membership affected commerce.

Yet, there is no evidence that John Moore’s membership was denied or terminated.

John Moore admits it resigned from the Houston BBB.            Response Br. p.3.

Regardless, John Moore has not established that its change in membership status



                                        25
with the Houston BBB (or the Bryan BBB) had any effect on commerce. It simply

theorizes that competition was harmed because it alleges that the Houston BBB

directed consumers to John Moore’s competitors. Id. pp.17-18, 29. It provides no

citation to support this claim or that this conduct would constitute harm to

commerce.

      Finally, regarding its injury, John Moore decrees “there is no serious dispute

that John Moore has been harmed.” Id. p.20. To the contrary, this notion is hotly

disputed. John Moore has not established through clear and specific evidence the

existence of any harm, much less that it was caused by the Houston BBB. Id. The

record is replete with other reasons for John Moore’s alleged loss of business,

including its inferior services, deceptive practices, and ill-trained workforce such

as those reflected in the 300+ consumer complaints received by the Houston BBB

(see CR001369-1800), including that:

         • John Moore stated that fixing a water leak in a consumer’s garage
           would require replacing all the piping inside her house at a cost of
           $4,300, while a second company solved the problem by replacing the
           drainage hose in her washing machine (CR1375);

         • John Moore refused to continue to service an air-conditioning system
           it had installed but that had stopped working, leading the consumer to
           state “WE will never again user (sic) their service” (CR1443); and

         • Consumer complained that she was taken advantage of because she is
           a “woman … 85 years old and confused” when John Moore charged
           her $839 to replace four fluorescent light bulbs and two ballasts in her
           kitchen). CR1467.



                                        26
                   c.     Attempt to Monopolize
      John Moore’s arguments in this Court “focus on attempted monopolization

(and conspiracy) in the markets for consumer trust, membership in similar trade

organizations, and mediation of consumer complaints (by the Houston BBB) and

in the market for home repair and renovation services (by Church Enterprises).”15

Response Br. p.21. However, John Moore did not argue all of these theories

before. See CR157-58¶¶84-87; CR1187. Once again, it is improperly altering its

arguments on appeal in an effort to concoct a claim. Regardless, it failed to

establish a prima facie case for the elements of attempted monopolization for any

market.16

      (i) Predatory or Anticompetitive Conduct: An act is only anticompetitive

“when it harms both allocative efficiency and raises the prices of goods above

competitive levels or diminishes their quality.”       Rebel Oil, 51 F.3d at 1433

(emphasis orig.). John Moore does not offer anything to establish that the two

types of conduct it alleges constitute predatory or anticompetitive acts:




15
       Despite John Moore’s insinuation, no monopolization claim appears in its
pleading. See CR150-62. Regardless, John Moore has not established a prima facie case
for the elements of monopolization. Appellants’ Br. pp.46-47. Thus, even if a
monopolization claim had been pled, it has been abandoned.
16
       John Moore admits all of the elements of attempted monopolization “must exist
within a relevant market,” yet it never defines that market. See Response Br. p.21.



                                         27
             (a)   John Moore claims that the Houston BBB gave it a bad rating

and forced it to resign its membership. Yet, it concedes that giving a business a

bad review would not be anticompetitive if the rating was supported and promoted

fair competition, such as “if it exposes an unethical business that seeks a

competitive advantage by misleading its customers.” Response Br. p.22. Here, the

record shows that several hundred former John Moore customers complained to the

Houston BBB about John Moore’s services and exposed a business that repeatedly

misled consumers. See supra at p.26.

             (b)   John Moore claims that the cancellation of an advertising

cooperative made smaller businesses less competitive and hurt the Houston BBB’s

ability to spread its message. It offers no evidence of these effects or their impact

on the market, merely Valentine’s conclusory assumptions. Response Br. pp.23-

24.

      (ii) Dangerous Probability of Success: To determine if there is a danger of

monopoly, courts must consider the relevant product and geographic markets and

the defendant’s power in them. See Texas Disposal Sys. Landfill, Inc. v. Waste

Mgmt. Holdings, Inc., 219 S.W.3d 563, 592-93 (Tex. App.—Austin 2007, pet.

denied) (affirming summary judgment for defendant when plaintiff failed to

provide evidence of relevant market and defendant’s share of market). Here, John

Moore has not provided clear and specific evidence of any relevant market or any



                                         28
defendant’s share of it (and, indeed, has not even alleged any defendant’s market

share).

      John Moore merely claims Church Enterprises “holds a significant

percentage of the business for home repair and renovation services,” which is

insufficient. Response Br. p.29; see Olympia Co. v. Celotex Corp., 597 F. Supp.

285, 294 (E.D. La. 1984), aff’d, 771 F.2d 888 (5th Cir. 1985) (granting summary

judgment, in part, due to plaintiff’s conclusory and imprecise allegation of

defendant’s market share and failure to support relevant market with evidence).

Further, the only citation for this alleged “significant” market share is Valentine’s

affidavit which simply makes the same pronouncement without supporting data.

See Response Br. p.29 (citing CR1212).17

      Finally, without evidence or market analysis supported by data, John Moore

also claims that the Houston BBB’s only competitors are other BBBs yet John

Moore’s theory is undermined by its own recognition that the Houston BBB has

competitors like Angie’s List and Yelp. Response Br. p.27; CR1214¶92.




17
      The same page of Valentine’s affidavit directly refutes John Moore’s theory that
Church Enterprises had a dangerous probability of achieving a monopoly by averring that
the market for home services is “highly competitive” and “hyper-competitive.”
CR1212¶¶84-85.



                                          29
II.   The Trial Court Erred in Overruling the Houston BBB’s Objections to
      John Moore’s Evidence, but Did Not Err in Sustaining Objections.
      John Moore incorrectly contends that the trial court “had no authority” to

rule on the Houston BBB’s evidentiary objections, citing Direct Commercial

Funding, Inc. v. Beacon Hill Estates, LLC, 407 S.W.3d 398 (Tex. App.—Houston

[14th Dist.] 2013, no pet.) and section 51.014(b). See Response Br. pp.59-60.

Neither supports John Moore’s position.        In Direct, the Fourteenth Court of

Appeals ruled that the trial court erred in granting a motion to dismiss under the

TCPA after the motion was denied by operation of law. Direct, 407 S.W.3d at

401. It did not rule that the trial court was precluded from making any ancillary

ruling relating to its decision on the motion to dismiss. Id. Similarly, John

Moore’s reliance on the automatic stay provision of section 51.014(b) is misplaced

because the Houston BBB filed its Notice of Appeal after the trial court issued its

evidentiary rulings. CR1112-14; 2Supp.CR3.

      John Moore’s cross-appeal of certain evidentiary rulings is also meritless.

See Response Br. pp.60-61. John Moore offers only conclusory arguments in

support of its contention that certain statements in Valentine’s affidavit were

admissible, but fails to cite to a single sentence in Valentine’s affidavit that would

establish the purported admissibility of these statements. Id. John Moore also

incorrectly cites Anderson Prod. Inc. v. Koch Oil Co., 929 S.W.2d 416, 425 (Tex.

1996) in support of its argument that Valentine gained personal knowledge by


                                         30
reviewing documents produced in discovery. That case, however, is inapposite

because it concerns expert testimony, not lay testimony like Valentine’s. Although

John Moore later claims, alternatively, that Valentine is an expert, it provides no

support for that argument.

      Similarly, John Moore’s contention that the trial court erred in excluding

two documents is meritless. Response Br. p.61 (CR1318-22). Both documents

constitute hearsay and contain hearsay within hearsay. Both are also irrelevant

because neither supports the interpretations that John Moore fancifully ascribes to

them. Id. Further, John Moore fails to explain how it was harmed by any of these

evidentiary rulings, or that they resulted in an improper judgment. See TEX. R.

APP. P. 44.1(a); TEX. R. EVID. 103(a); McCraw v. Maris, 828 S.W.2d 756, 757

(Tex. 1992).

      Finally, John Moore offers no analysis—only unsupported conclusory

statements—in responding to the Houston BBB’s identification of errors in the trial

court’s evidentiary rulings. Response Br. pp.61-62. Moreover, with regard to

CR2116-2130/HOUBBB12448-462, John Moore misstates the record, contending

it complied with TEX. R. CIV. P. 193.7. Id. But, it did not properly authenticate the

document and, as a result, it is inadmissible. CR868-72.




                                         31
                          CONCLUSION AND PRAYER
      For all these reasons, the Houston BBB respectfully requests that the order

denying its motion to dismiss be reversed, that this Court render judgment in its

favor and remand this case to the trial court for determination of the Houston

BBB’s reasonable attorneys’ fees, court costs, and other expenses, as well as an

award of sanctions pursuant to section 27.009(a)(2), and for such other and further

relief to which it may show itself to be justly entitled.




                                           32
Respectfully submitted,

PORTER HEDGES LLP

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

Attorneys for Appellants The Better
Business Bureau of Metropolitan Houston,
Inc., The Better Business Bureau of
Metropolitan Houston Education
Foundation, Dan Parsons, Chris Church,
Church Enterprises, Inc., Gary Milleson,
Ronald N. McMillan, D’Artagnan Bebel,
Mark Goldie, Charlie Hollis, and Steven
Lufburrow




 33
                         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 2nd day of January 2015, a true and correct
copy of the foregoing was served on the following counsel of record by electronic
delivery as follows:

         Lori Hood
         Douglas Pritchett
         Tamara Madden
         Johnson Trent West & Taylor LLP
         919 Milam Street, Suite 1700
         Houston, Texas 77002
         lhood@johnsontrent.com

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

                                           /s/ Lauren B. Harris
                                           Lauren B. Harris




                                         34
                      CERTIFICATE OF COMPLIANCE

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

Appellate Procedure 9.4(i)(2)(C) because this brief contains 7482 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




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