HOUSTON – A panel of 1st District Court of Appeal judges have kept the bout between two parties alive over a bar fight complaint.
Ruling on 80th District Court of Harris County decision, Chief Justice Sherry Radack and Judges Michael Massengale and Harvey Brown have denied appellants LFMC Enterprises LLC, Li Y. Feng and Mimi Chan's motion to dismiss on the charges brought against them by appellee Gary Baker based on the Texas Citizens Participation Act (TCPA).
Baker, who was allegedly beaten and had money stolen from him by four bouncers at Empire nightclub, brought on statutory nuisance complaint, alleging the Texas Deceptive Trade Practices was violated by the appellants and that they “maintained, aided and abetted, and otherwise permitted and facilitated the existence of a highly dangerous, unlicensed and illegal nightclub,” according to the opinion authored by Massengale.
After appellants attempted to dismiss the complaint under the TCPA with an affidavit, Baker argued that his complaint was not protected by the Act, which raised two issues by the appellants in the appeal, including 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,” and “the adequacy of the evidence to demonstrate a prima facie case for each essential element of the claim,” Messengale wrote.
Beginning the appeal analysis interpreting the plain meaning of the TCPA text, the panel of judges cited Tex. Lottery Comm’n v. First State Bank of DeQueen 2010, noting appellant's affidavit used in the motion to dismiss was primarily based on their exercised rights of association.
“The appellants argue that Elite Auto Body LLC v. Autocraft Bodywerks Inc. 2017 supports their contention that the statutory nuisance claim ‘took direct aim’ at their exercise of the right of association,” Messengale wrote.
Appellants were wrong, according to the panel of judges.
“Because the appellants did not carry their burden to establish the applicability of the TCPA, the trial court did not err by denying the motion by operation of law,” Messengale wrote. “As such, we do not need to address the appellants’ second issue, which argued that Baker did not establish a prima facie case by clear and specific evidence.”