                                                                       ACCEPTED
                                                                  01-14-00687-CV
                                                        FIRST COURT OF APPEALS
                                                                HOUSTON, TEXAS
                                                              3/9/2015 3:17:39 PM
                                                             CHRISTOPHER PRINE
                                                                           CLERK

            No. 01-14-00687-CV

                                                  FILED IN
                 IN THE                    1st COURT OF APPEALS
         FIRST COURT OF APPEALS                HOUSTON, TEXAS
             HOUSTON, TEXAS                3/9/2015 3:17:39 PM
                                           CHRISTOPHER A. PRINE
                                                   Clerk

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

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

APPELLANTS’ OBJECTIONS TO CONSOLIDATION
    OF RELATED CASES FOR SUBMISSION

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

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

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

(collectively “the Houston BBB”) file this response to the Court’s March 5, 2015

order advising of its intent to consolidate the submission of this case with Cause

no. 01-14-00906-CV, John Moore Services, Inc. and John Moore Renovation, LLC

v. The Better Business Bureau of Metropolitan Houston, Inc., in the First Court of

Appeals, and would respectfully show the Court as follows:

A.    Factual Background

      This Court previously considered the Houston BBB’s interlocutory appeal of

a trial court order denying its motion to dismiss the lawsuit of Appellees John

Moore Services, Inc. and John Moore Renovation, LLC (collectively “John

Moore”). The Houston BBB’s motion was filed pursuant to the Texas Citizens’

Participation Act (“TCPA”), a statute that protects defendants from meritless

litigation designed to chill the exercise of free speech. See TEX. CIV. PRAC. &

REM. CODE § 27.001 et seq. In an opinion issued in July 2013, this Court reversed

the denial of the Houston BBB’s motion to dismiss and remanded the case to the

trial court for consideration of sanctions and attorneys’ fees. See Better Bus.



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Bureau of Metro. Houston, Inc. v. John Moore Servs., Inc., 441 S.W.3d 345 (Tex.

App.—Houston [1st Dist.] 2013, pet. denied) (hereafter, “the first case”). On

remand, the trial court awarded the Houston BBB attorneys’ fees and assessed

sanctions against John Moore. CR1102-06.

      While the first case was pending in the Texas Supreme Court, however, John

Moore filed this second lawsuit against the Houston BBB based on the same facts

and events, naming as defendants the Houston BBB’s individual directors and

officers (hereafter, “the second case”). CR7-32. The Houston BBB once again

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

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

§27.005(a).   Therefore, the Houston BBB filed this interlocutory appeal to

challenge the denial by “operation of law” under the TCPA of its motion to

dismiss. Id. at §27.008. All the briefing in the case has been completed, and oral

argument is presently set in this case for March 31, 2015.

      Meanwhile, John Moore has also appealed the final judgment in the first

case awarding the Houston BBB attorneys’ fees in the amount of $250,001.44 and

sanctions in the amount of $6,000. CR1102-06. John Moore filed the appeal in

November 2014, and the clerk’s record was filed in December 2014. However, the

reporters’ record has not yet been filed, and is not due to be filed until March 12,

2015. Because the merits of that dispute have previously been addressed by this



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Court, the only challenge that John Moore can potentially raise in the first case is

to the amount of attorneys’ fees and sanctions.

B.    Objections to Consolidation

      Although the two cases are based on the same facts and events, the issues on

appeal and the status of the appeals are different, so the Houston BBB objects to

their consolidation for submission. Combining these cases will only serve to

further delay the resolution of this case. This case is fully briefed and ready for

submission. It involves the issue of whether the Houston BBB is entitled to

dismissal on the merits based on the TCPA, an issue this Court has already

considered and addressed. This matter is also an accelerated appeal entitled to

priority. See TEX. R. APP. P. 28; TEX. CIV. PRAC. & REM. CODE §27.008(b).

      On the other hand, the first case is an appeal from a final judgment, not

entitled to an accelerated schedule. The reporters’ record has not yet been filed,

and no briefs have been filed. Since this Court has already adjudicated the merits

of the first case, the issues in that appeal will be limited to John Moore’s challenge

to the amount of attorneys’ fees and sanctions awarded against it. This is an issue

that can be decided on the briefs without the necessity of oral argument. As a

result, it is not necessary to delay the resolution of the merits of the dispute in the

second case to consider the separate attorneys’ fees issue in the first case.




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      Even if these two cases were consolidated for submission, this matter would

not be fully resolved. If John Moore is successful in this appeal, this case will

proceed in the trial court on the merits. If the Houston BBB is successful in

achieving a dismissal on the merits, the case will still have to be remanded for the

consideration of attorneys’ fees and sanctions. In short, any consolidation of the

two pending appeals will not result in a full resolution of this dispute.

Consequently, the interests of judicial economy will not be served by any

consolidation of these cases for submission.      It will only serve to delay the

resolution of this dispute.

      WHEREFORE, Appellants The Better Business Bureau of Metropolitan

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

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

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

Lufburrow respectfully request that the Court decline to consolidate this case with

cause no. 01-14-00906-CV for submission purposes.

Dated: March 9, 2015.




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Respectfully submitted,

PORTER HEDGES LLP


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

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




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                           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 9th day of March 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.
            Lori Hood
            Tamara Madden
            Johnson, Trent, West & Taylor, L.L.P.
            919 Milam Street, Suite 1700
            Houston, TX 77002
            dpritchett@johnsontrent.com

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

                                              /s/ Lauren B. Harris
                                              Lauren B. Harris

4831030v2




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