John Moore Services, Inc. and John Moore Renovation, LLC v. the Better Business Bureau of Metropolitan Houston Inc.
01-14-00906-CV
Tex. App.May 20, 2015Background
- John Moore Services, Inc. sued the Better Business Bureau (BBB) alleging defamation, tortious interference, fraud, disparagement and related claims based on an online BBB review and rating change.
- BBB moved to dismiss under the Texas Citizens Participation Act (TCPA); the trial court denied the motion, BBB appealed, and the First Court of Appeals reversed, holding the TCPA applied and that John Moore had not produced clear and specific evidence to support its claims (John Moore Servs., Inc. v. Better Bus. Bureau).
- While the appeal was pending, discovery proceeded and scheduling orders set pleading-amendment and joinder deadlines; after the appellate opinion, John Moore filed an amended petition adding claims and parties, but the trial court ultimately struck it as unauthorized during the interlocutory appeal and because of statutory stay rules enacted while the appeal was pending.
- BBB sought recovery of attorneys’ fees and sanctions under the TCPA; the trial court denied BBB’s fee motion and submitted attorneys’ fees to a jury, which awarded BBB $250,001.44 (plus $6,000 in TCPA sanctions), and the trial court entered final judgment dismissing John Moore’s claims with prejudice.
- John Moore later filed a second, duplicative lawsuit attempting to assert the claims and parties it had tried to add; it moved to consolidate that second suit with the first after the fees trial but failed to properly set the consolidation motion for hearing, and the trial court declined to consider it and entered judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Legal sufficiency of evidence supporting attorneys’ fees award | John Moore: fee evidence inadequate because invoices were heavily redacted and used block (task-aggregate) billing; jury could not assess reasonableness from redacted records | BBB: contemporaneous invoices (some unredacted to client), summaries, and lead counsel’s expert testimony supported reasonableness and necessity; redactions protected privileged strategy and were not objected to at trial | Held for BBB: jury award was within the range of evidence and supported by expert testimony plus billing records; redactions and block billing did not render fee proof legally insufficient |
| Admissibility / effect of redacted billing records | John Moore: redactions prevented meaningful review and cross‑examination, so records were insufficient | BBB: redactions were limited to privileged strategic details; client saw full invoices; no timely objection was made; courts may rely on redacted contemporaneous records plus testimony | Held for BBB: redacted invoices, together with testimony, were adequate; failure to object at trial waived the complaint |
| Effect of block or “bulk” billing on fee proof | John Moore: block billing prevents assessment of time on discrete tasks, defeating lodestar proof per El Apple and Long | BBB: El Apple/Long require some contemporaneous time records or testimony tied to them; they do not prohibit block billing; here detailed monthly invoices and counsel’s testimony supplied the needed foundation | Held for BBB: presence of contemporaneous records and expert testimony distinguishes this case from El Apple and Long; block billing did not preclude recovery |
| Trial court’s denial of post-appeal amendments and refusal to consolidate with second suit | John Moore: trial court abused discretion by denying leave to amend and failing to consolidate duplicative case to allow new claims/parties | BBB: amendments were untimely, deadlines passed, automatic statutory stay (and later mandate) barred unauthorized amendments; consolidation motion was filed late and not set for hearing so waived | Held for BBB: trial court acted within its discretion; amendments were untimely and consolidation complaint was not preserved and, in any event, properly rejected |
Key Cases Cited
- John Moore Services, Inc. v. Better Bus. Bureau of Metro. Houston, Inc., 441 S.W.3d 345 (Tex. App.—Houston [1st Dist.] 2013) (appellate decision reversing denial of TCPA dismissal)
- El Apple I, Ltd. v. Olivas, 370 S.W.3d 757 (Tex. 2012) (contemporaneous time records are necessary to support fee affidavits that otherwise lack task/time detail)
- Long v. Griffin, 442 S.W.3d 253 (Tex. 2014) (affidavits that lack contemporaneous billing or task-specific hours cannot sustain lodestar review)
- Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812 (Tex. 1997) (factors for assessing reasonableness of attorneys’ fees)
- City of Laredo v. Montano, 414 S.W.3d 731 (Tex. 2013) (attorney testimony tied to records may support fee awards even without producing all billing records)
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (legal‑sufficiency / no‑evidence review principles)