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LFMC Enterprises, LLC v. Baker

Court of Appeals of Texas, First District

March 27, 2018

GARY BAKER, Appellee

          On Appeal from the 80th District Court Harris County, Texas Trial Court Case No. 2015-62263

          Panel consists of Chief Justice Radack and Justices Massengale and Brown.



         This is a lawsuit over a bar fight. The parties' brawl continues in the form of an interlocutory appeal authorized by the Texas Citizens Participation Act. After the plaintiff, Gary Baker, pleaded statutory nuisance claims, the owners of the premises moved to dismiss those claims on the theory that they were based on, related to, or in response to their exercise of the "right of association." Tex. Civ. Prac. & Rem. Code §§ 27.001(2), 27.003(a). The motion was denied and this appeal ensued.

         The appellants suggest that the nightclub operating on their premises facilitates the exercise of the right of association by bar patrons, and even their agents and employees, but they provided no evidence that their own associational rights, as defined by the statute, were implicated by the nuisance claims. This was fatal to their motion, which had to demonstrate that the challenged legal action was based on, related to, or in response to the movant's exercise of a right protected by the TCPA. Id. § 27.003(a). Accordingly we affirm the denial of the TCPA motion to dismiss.


         Appellee Gary Baker contends that he was severely beaten by four bouncers who worked for Empire nightclub after a misunderstanding about payment for a drink. Baker also contends that the bouncers stole money from him. He sued the nightclub operator, Club Myst LLC; several agents of the nightclub; LFMC Enterprises, LLC, which owns and leases the nightclub premises; Li Feng and Mimi Chan, who are the owners of LFMC Enterprises; a club promotion company; and the owners, agents, and managing employees of the club promotion company. Among other causes of action against the various defendants, Baker initially alleged that LFMC Enterprises, Feng, and Chan committed negligence, assault, theft, and gross negligence, and that they violated the Texas Deceptive Trade Practices Act.

         In an amended petition, Baker pleaded a new cause of action for nuisance under Chapter 125 of the Civil Practice and Remedies Code. He alleged that LFMC Enterprises, Feng, and Chan "maintained, aided and abetted, and otherwise permitted and facilitated the existence of a highly dangerous, unlicensed, and illegal nightclub." He also asserted that people habitually went to the nightclub for illegal purposes, such as publicly discharging a firearm, recklessly discharging a firearm, engaging in gang activity, aggravated assault, sexual assault, aggravated sexual assault, robbery, aggravated robbery, and unlawfully carrying a weapon. Though Baker did not allege that LFMC Enterprises, Feng, and Chan participated in these illegal activities, he did allege that they knew about and tolerated them without making reasonable attempts at abatement because they were profiting from the rental revenue. He further maintained that the illegal and dangerous activities were continuing on the premises and that, "singularly and collectively, " they constituted a nuisance under the statute. Baker sought damages and an injunction to prohibit the appellants from allowing an unlicensed nightclub to operate on their premises.

         In response to the statutory nuisance claims, LFMC Enterprises, Feng, and Chan filed a motion to dismiss under the Texas Citizens Participation Act. They characterized the nuisance claims as being "specifically against the LFMC Defendants for having a nightclub in the City of Houston." They asserted that the nuisance claims interfered with their constitutional right of association, arguing that "the nightclub operating the premises is used for . . . getting together to communicate and join together to express and promote common interests." The only evidence attached to the motion to dismiss was an affidavit from Chan, who averred:

LFMC Enterprises, LLC, although not directly involved in the operation of the nightclub on the premises, leases the subject property at issue in this litigation with the knowledge and expectation that same will be used as a nightclub where people-including agents and employees of LFMC Enterprises, LLC-may go to associate and speak freely if they should wish. Further it is the expectation that the association of the individuals will be with a common interest; that is to socialize, dance, and to speak freely about current events or whatever is at issue for the individuals in a relaxed environment. Because of the inherent nature of a nightclub, it is not unusual for sounds of the communications taking place as part of the exercise of the right of nightclub patrons to associate with each other to be audible to passersby.

         Focusing on the enforceability of municipal dance-hall licensing regulations, Baker responded that his claims did not "infringe upon any of the protections of the TCPA." He attached police records, records from the Texas Alcoholic Beverage Commission, business records affidavits, his second amended petition, and a transcript of Chan's deposition. Chan testified that she and Feng were the only owners of LFMC Enterprises, which owns the building that was used as a nightclub. She testified that she was "just the landlord, " and in that capacity she collected rent, paid bills (including taxes, insurance, and the mortgage), and oversaw maintenance. She also testified that she had never been to the club operated by Club Myst, saying: "I just rent the property. . . . I don't like noises; so, I don't go down there at night." When asked about crime in the vicinity of the club and whether she felt obligated to prevent shootings on her property, she responded, "I don't know. I'm not in that part of town. I don't know. I cannot tell you." However, she testified that bars were installed on the windows. Feng contributed money to LFMC Enterprises, but she played no other role in its operation.

         After the trial court heard arguments, the TCPA motion was denied by operation of law. LFMC Enterprises, Feng, and Chan appealed.


         Two issues have been raised on appeal. First, the appellants assert that the TCPA applied because the statutory nuisance claim was a legal action based on, related to, or in response to their exercise of the right of association. Second they challenge the adequacy of the ...

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