1st District Court of Appeals denies motion for sanctions in mailing of CCEMS classified documents case

By Robert Davis | Apr 12, 2018

HOUSTON – The 1st District Court of Appeals affirmed a decision by the 165th District Court in Harris County to dismiss Wayne Dolcefino and Wayne Dolcefino Consulting's motion for sanctions against Cypress Creek EMS (CCEMS) after the trial court granted a summary judgment on conversion in favor of the consulting firm.

HOUSTON – The 1st District Court of Appeals affirmed a decision by the 165th District Court in Harris County to dismiss Wayne Dolcefino and Wayne Dolcefino Consulting's motion for sanctions against Cypress Creek EMS (CCEMS) after the trial court granted a summary judgment on conversion in favor of the consulting firm.

In the court's opinion, it concluded that CCEMS "failed to raise a genuine issue of material fact on an essential element of its conversion claim in response to Dolcefino’s no-evidence motion for summary judgment."

CCEMS argued that Dolcefino converted copies of confidential documents that CCEMS’ attorneys inadvertently mailed to Dolcefino. When it requested that he return the documents, he allegedly refused and wrongfully retained them.

CCEMS further argued a decision in Texaco Inc. v. Phan to support its claim. 

Dolcefino filed a motion for summary judgment, arguing that CCEMS had no evidence of its conversion claim. He further argued that he had not “wrongfully exercised dominion or control over the property.”

The court reasoned that CCEMS essentially argued that its own erroneous conduct "can be imputed as tortious conduct on Dolcefino’s part."

CCEMS filed the suit on May 14, 2015, alleging "a cause of action against Dolcefino for conversion of the documents" and sought a temporary restraining order (TRO) against the consultant. The suit also sought a temporary injunction, and a permanent injunction prohibiting Dolcefino from using or keeping the documents he received under the Texas Public Information Act (PIA).

Dolcefino was hired by an unidentified third party to investigate CCEMS and requested documents from the organization related to the tactical medical team and CCEMS credit card charges between June 2015.

CCEMS sought guidance from the state attorney general about the documents requests, specifically whether any of the documents could be argued as exempted from the PIA. It sent the attorney general un-redacted copies of the documents for him to review. 

After receiving an answer from the attorney general, CCEMS' attorney forwarded it along to Dolcefino. After doing so, the attorney came to believe he also forwarded the unredacted documents and sought a TRO against Dolcefino, requesting he return said documents. 

The court ruled the trial court did not abuse its discretion to grant the summary judgment or deny the motion for sanctions pursuant to Rule 13 and Civil Practice and Remedies Code Chapter 10.

Judge Evelyn Keyes gave the opinion of the court on April 3. The panel consisted of Judges Terry Jennings and Laura Carter Higley, who concurred.

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