In Dolcefino v. Cypres Creek EMS, No. 01-17-00254-CV, (Tex. App. – Houston , December 19, 2017, Dolcefino, a journalist, asked for information from CCEMS under the Texas Business Organizations Code dealing with nonprofit corporations and what information they have to make available to the public. CCEMS filed a declaratory judgment action asking the court to declare what obligations it had to release information. Dolcefino filed a Texas Anti-Slapp, Texas Citizens Participation Act (TCPA), motion to dismiss. The motion was denied by operation of law and Dolcefino appealed.
In upholding the denial of the Texas Anti-Slapp motion, the appeals court noted:
Dolcefino bore the initial burden of showing by a preponderance of the evidence that the TCPA applied to CCEMS’s claim, i.e., that CCEMS’s declaratory judgment act claims were “based on, relate[d] to, or [were] in response to [Dolcefino’s] exercise of: (1) the right of free speech; (2) the right to petition; or (3) the right of association.”
Dolcefino argues that he met this burden because CCEMS’s legal action is based on, relates to, or is in response to his exercise of free speech rights in making written requests for information under Business Organizations Code section 22.353. CCEMS argues, on the other hand, that the TCPA does not apply to its declaratory judgment act claims here. We agree with CCEMS.
The appeals court held that the Texas Anti-Slapp or TCPA did not apply because the declaratory judgment pleadings did not try to limit Dolcefino’s rights.
CCEMS’s pleadings sought a declaration from the trial court concerning its own conduct, i.e., what its duties and obligations were upon its receipt of requests for information made pursuant to Business Organizations Code section 22.353. The relief sought by CCEMS did not seek to prohibit any conduct or speech by Dolcefino. CCEMS did not allege that Dolcefino’s requests contained any tortious communications, nor did it seek any damages related to Dolcefino’s requests. Thus, the trial court reasonably could have determined that CCEMS’s suit is “based on, relates to, or is in response to” the triggering of its own duties or obligations to comply with Business Organizations Code section 22.353—a subject-matter that does not fall within the TCPA’s purview.
Accordingly, we conclude that the record supports the trial court’s determination that Dolcefino failed to demonstrate by a preponderance of the evidence that CCEMS’s declaratory judgment act claims were “based on, relate[d] to, or [were] in response to [Dolcefino’s] exercise of: (1) the right of free speech; (2) the right to petition; or (3) the right of association,” and, accordingly, the trial court did not err in denying his motion to dismiss by operation of law.