Wayne Dolcefino and Dolcefino Communications, LLC v. Cypress Creek EMS
540 S.W.3d 194
| Tex. App. | 2017Background
- CCEMS, a Texas nonprofit ambulance service, received public-record requests from investigative journalist Wayne Dolcefino for payroll records (July 2014) and law‑firm invoices (Sept. 2016) under Tex. Bus. Orgs. Code § 22.353.
- CCEMS refused to produce the records; Dolcefino filed a criminal complaint and the DA subpoenaed the records; criminal prosecution remained pending.
- CCEMS sued for a declaratory judgment asking the court to construe § 22.353 and declare whether it must produce the Payroll Records and Invoices, asserting confidentiality and privilege defenses.
- Dolcefino moved to dismiss under the Texas Citizens Participation Act (TCPA), claiming his requests were protected free‑speech/ petition activity and that CCEMS’s suit was retaliatory; he sought dismissal and fees.
- The trial court did not rule within the TCPA’s deadline, so Dolcefino’s motion was denied by operation of law; the court of appeals reviewed de novo.
Issues
| Issue | Plaintiff's Argument (Dolcefino) | Defendant's Argument (CCEMS) | Held |
|---|---|---|---|
| Whether the TCPA applies to CCEMS’s declaratory‑judgment suit | Dolcefino: his document requests are "communications" on a matter of public concern; CCEMS’s suit was filed in response and thus falls under TCPA | CCEMS: suit seeks declaration of its own statutory duties under UDJA and does not seek to restrict Dolcefino’s speech; TCPA does not reach this subject | Held: TCPA does not apply; CCEMS’s suit is a UDJA action about its obligations, not a suit to chill protected speech |
| Whether temporal proximity (request then suit) establishes retaliation under TCPA | Dolcefino: short interval between request and suit shows retaliation | CCEMS: timing alone insufficient; suit simply responds to duty triggered by request | Held: timing insufficient without evidence of retaliation; connection limited to triggering statutory duties |
| Whether trial court erred in denying TCPA motion by operation of law | Dolcefino: denial by operation of law was erroneous because TCPA should have applied and dismissal granted | CCEMS: even if denial procedural, TCPA inapplicable so dismissal unwarranted | Held: no error — court correctly concluded TCPA did not apply, so denial by operation of law affirmed |
Key Cases Cited
- ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895 (Tex. 2017) (describing TCPA purpose and two‑step dismissal procedure)
- In re Lipsky, 460 S.W.3d 579 (Tex. 2015) (TCPA motion‑to‑dismiss framework)
- Lippincott v. Whisenhunt, 462 S.W.3d 507 (Tex. 2015) (defining "matter of public concern" under TCPA)
- City of Dallas v. VSC, LLC, 347 S.W.3d 231 (Tex. 2011) (standards for declaratory judgment and justiciable controversy)
- Bonham State Bank v. Beadle, 907 S.W.2d 465 (Tex. 1995) (declaratory judgment principles)