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Dolcefino v. Cypress Creek EMS

Court of Appeals of Texas, First District

December 19, 2017

CYPRESS CREEK EMS, Appellee/Cross-Appellant

         On Appeal from the 165th District Court Harris County, Texas Trial Court Case No. 2016-64716

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


          Evelyn V. Keyes Justice.

         Appellee Cypress Creek EMS ("CCEMS") filed suit seeking a declaratory judgment construing Business Organizations Code section 22.353, part of the Texas Nonprofit Corporation Act, with respect to its duties to provide certain financial documents pursuant to a document request filed by appellants Wayne Dolcefino and Dolcefino Communications, LLC ("Dolcefino").[1] Dolcefino moved to dismiss CCEMS's declaratory judgment suit under the Texas Citizens Participation Act ("TCPA"), claiming that CCEMS's filing of a declaratory judgment action in response to his requests for the documents denied him his constitutional right to free speech. See Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001-.011 (West 2015). The motion was denied by operation of law.

         In his sole issue on appeal, Dolcefino argues that the trial court erred in denying the motion to dismiss by operation of law, asserting, among other arguments, that the trial court "erred if it determined that the [TCPA] did not apply" to CCEMS's claims and that he was entitled to dismissal and related attorney's fees and costs. In its cross-appeal, CCEMS asserts that the trial court erred in denying it the opportunity to depose Dolcefino on specific issues relevant to his motion to dismiss and by not continuing the hearing on Dolcefino's motion to dismiss in order to allow CCEMS time to conduct limited discovery. We conclude that Dolcefino failed to carry his burden to demonstrate that the TCPA applies to this suit, and, accordingly, affirm the trial court's ruling on the motion to dismiss.


         CCEMS is a Texas nonprofit corporation doing business as a non-emergency ambulance service in Harris County. Dolcefino was hired to investigate CCEMS, and he requested documents from the organization, including filing a request under Business Organizations Code section 22.353, which requires certain nonprofit corporations to keep financial records and make those records available to the public for inspection and copying. See Tex. Bus. Orgs. Code Ann. § 22.353 (West 2012). Specifically relevant here, on July 13, 2014, Dolcefino requested from CCEMS "[d]ocuments detailing the annual salaries and any other financial compensation for each of the last four years, including current salaries and any overtime payments" ("Payroll Records") and stated that the documents could be redacted.

         CCEMS did not provide the requested documents, and tensions escalated between it and Dolcefino. On April 23, 2015, CCEMS sued Dolcefino for conversion and sought a permanent injunction. The trial court granted summary judgment in favor of Dolcefino on these claims, and the final judgment was appealed to this Court and remains pending in cause number 01-16-00929-CV.

         CCEMS continued to refuse to provide the requested documents. Dolcefino then made a formal complaint with the Harris County District Attorney. The District Attorney's office charged CCEMS with failing to produce a financial record pursuant to Business Organizations Code section 22.354, which makes the "fail[ure] to maintain a financial record, prepare an annual report, or make the record or report available to the public in the matter required by Section 22.353" a class B misdemeanor. Tex. Bus. Orgs. Code Ann. § 22.354 (West 2012). As part of the criminal proceedings, the District Attorney's office subpoenaed the Payroll Records that Dolcefino had requested. CCEMS's efforts to quash that subpoena failed, and it then filed an application for a writ of habeas corpus asserting that the Nonprofit Corporation Act's terms "financial record" and "financial activity" were unconstitutionally vague. The trial court denied this application, and, on June 29, 2016, CCEMS appealed that ruling to this Court in cause number 01-16-00523-CR. A panel of this Court subsequently ruled that CCEMS was not entitled to habeas relief because it had not established that its liberty was restrained in a manner sufficient to invoke the court's habeas jurisdiction. See Ex parte Cypress Creek EMS, No. 01-16-00523-CR, 2017 WL 3389648, at *6 (Tex. App.-Houston [1st Dist.] Aug. 8, 2017, no pet.). It appears from the record that this criminal case is still pending in the trial court.

         On September 14, 2016, Dolcefino requested from CCEMS "[d]ocuments detailing all invoices from [law firm] Litchfield Cavo LLP between January 1, 2014 and the present" ("Invoices"). The request again stated that CCEMS could provide redacted documents.

         CCEMS then filed the declaratory judgment suit underlying this appeal, stating that it "sues as the entity being asked to disclose documents pursuant to the Texas Non-Profit Corporation Act[, Business Organizations Code section 22.353]." It sought a declaratory judgment interpreting section 22.353 to determine whether it was required under that section to provide the documents requested by Dolcefino, namely the Payroll Records and Invoices. CCEMS asserted that both categories of documents contained information protected from disclosure, including names and personal identifying information and information protected by the attorney-client privilege. It further alleged that any right of a member of the public, like Dolcefino, to inspection of those documents pursuant to section 22.353 "does not trump privileges or other rights to confidentiality provided for by Texas law." It also argued that neither the Payroll Records nor the Invoices fell within the scope of documents that a nonprofit corporation must make available for public inspection and copying, observing, "The Act only requires a non-profit corporation to make 'the records, books, and reports' of its 'financial activity' available to the public." It asserted that "[t]he Payroll Records and Invoices are not records, books and reports of financial activity." CCEMS sought a declaration that it is not required to make the Payroll Records or Invoices available to Dolcefino for inspection.

         Dolcefino moved to dismiss CCEMS's declaratory judgment suit based on the TCPA, claiming that CCEMS's suit sought to curtail his constitutional right to free speech. See Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001-.011. Among other facts, Dolcefino asserted that he "is an award winning investigative journalist who currently provides a variety of professional services to his clients, including investigations related to exposure of corruption, fraud, or impropriety." He characterized CCEMS's legal proceedings as "harassment" in retaliation for his request for financial documents available to the public under Texas law. Dolcefino asserted that his requests under Business Organizations Code sections 22.353 and 22.354 were "communications" about a matter of public concern and, thus, an exercise of his right to free speech protected by the TCPA. He sought dismissal, asserting that CCEMS's petition was based on, related to, or filed in response to this exercise of his right to free speech. He further asserted in his motion to dismiss that CCEMS could not establish a prima facie case for each element of its declaratory judgment claim.

         CCEMS moved for leave to depose Dolcefino, asserting that a deposition was necessary for it to establish that a commercial speech exemption applied to the claims. Dolcefino responded that CCEMS should not be permitted to conduct its discovery prior to the hearing on his motion to dismiss. The trial court never ruled on CCEMS's discovery motion.

         CCEMS also opposed Dolcefino's motion to dismiss on the merits. It asserted that the TCPA does not apply to its declaratory judgment suit; that, in making his document requests, Dolcefino did not assert a right to free speech, but a legal right; and that the commercial speech exemption of the TCPA applied to Dolcefino's communications and activities. CCEMS also asserted that it had met its burden to establish by clear and specific evidence each ...

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