WAYNE DOLCEFINO AND DOLCEFINO COMMUNICATIONS, LLC, Appellants/Cross-Appellees
CYPRESS CREEK EMS, Appellee/Cross-Appellant
Appeal from the 165th District Court Harris County, Texas
Trial Court Case No. 2016-64716
consists of Chief Justice Radack and Justices Keyes and
V. Keyes Justice.
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"). 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.
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.
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.
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
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
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.
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.
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.
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.
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 ...