Court of Appeals of Texas, Fourth District, San Antonio
the 73rd Judicial District Court, Bexar County, Texas Trial
Court No. 2014-CI-17145 Honorable Antonia Arteaga, Judge
Angelini, Justice Patricia O. Alvarez, Justice Irene Rios,
appeal is brought under section 51.014(a)(12) of the Texas
Civil Practice and Remedies Code, which allows an appeal from
an interlocutory order denying a motion to dismiss under the
Texas Citizens Participation Act (TCPA). See Tex.
Civ. Prac. & Rem. Code Ann. § 51.014(a)(12) (West
Supp. 2016). The appellant, Tom Retzlaff, argues the trial
court erred in denying his motion to dismiss. We conclude the
trial court did not err in denying Retzlaff's motion to
dismiss and, therefore, affirm the trial court's order.
Factual and Procedural Background
is not a party to the underlying lawsuit. Retzlaff became
involved in the underlying suit, at least peripherally, when
he decided to file pro se pleadings to challenge discovery
propounded on another nonparty. In the underlying suit, E.M.
and V.B.M. sued the appellees, Philip R. Klein, Klein
Investigations & Consulting, and James W. Landess
(collectively, "the Kleins"), for malicious
prosecution, false imprisonment, defamation, libel, and civil
conspiracy.After answering the suit, the
Kleins issued a subpoena and a deposition on written
questions to the custodian of records for GoDaddy.com, Inc.,
a nonparty. In the subpoena, the Kleins sought emails as well
as telephonic and other communications between Retzlaff and
GoDaddy.com related to the transfer of ownership of several
response, Retzlaff filed a series of pro se pleadings in
which he challenged the subpoena served on GoDaddy.com. The
Kleins moved to strike Retzlaff's pleadings because
Retzlaff, who had previously been declared a vexatious
litigant by a Texas court, had violated the order requiring
him to obtain permission prior to filing pro se pleadings.
Specifically, the order "prohibited" Retzlaff
"from filing, in propia persona, any new litigation in
any state or federal court located in the State of Texas
without first obtaining permission of the local
administrative judge…." It is undisputed that
Retzlaff did not obtain permission prior to filing his pro se
pleadings challenging the subpoena. In addition, the Kleins
filed a motion for contempt against Retzlaff.
Retzlaff moved to dismiss the motion for contempt pursuant to
the TCPA. In his motion to dismiss, Retzlaff asserted that
the motion for contempt violated his right to petition the
courts. Retzlaff further argued that the motion for contempt
amounted to a retaliatory lawsuit that sought to intimidate
or silence him on matters of public concern. Retzlaff also
asserted that the order declaring him a vexatious litigant
was no longer in effect and that the Texas vexatious litigant
statutes did not apply to this situation.
Kleins filed a response to Retzlaff's motion to dismiss,
arguing that their motion for contempt was not a retaliatory
lawsuit within the meaning of the TCPA. The Kleins argued
that a valid court order existed declaring Retzlaff a
vexatious litigant and that the order was enforceable by
contempt. The Kleins further argued that no case law
supported the proposition that a motion to enforce a valid
court order could be the basis for a motion to dismiss.
trial court held a hearing on the Kleins' motion to
strike. Retzlaff did not appear at the hearing. The trial
court granted the Klein's motion to strike and signed an
order striking all of Retzlaff's pleadings, including his
motion to dismiss under the TCPA. The trial court did not
consider or rule on the motion for contempt.
filed a notice of appeal challenging the denial of his motion
to dismiss under the TCPA. Retzlaff appears pro se in this
first consider whether we have jurisdiction over this appeal.
As a general rule, appellate courts only have jurisdiction
over appeals from final judgments. CMH Homes v.
Perez, 340 S.W.3d 444, 447 (Tex. 2011). However, we also
have jurisdiction over an appeal from an interlocutory order
when a statute expressly authorizes such an appeal.
Id. Our jurisdiction is controlled by the substance
and function of the interlocutory order from which the appeal
is taken. Lucchese, Inc. v. Solano, 388 S.W.3d 343,
349 (Tex. App.-El Paso 2012, no pet.); Texas La Fiesta
Auto Sales, LLC v. Belk, 349 S.W.3d 872, 878 (Tex.
App.-Houston [14th Dist.] 2011, no pet.).
27.003 of the civil practice and remedies code authorizes the
filing of a motion to dismiss under the TCPA. Tex. Civ. Prac.
& Rem. Code Ann. § 27.003 (West 2015). Section
51.014(a)(12) of the civil practice and remedies code
provides: "A person may appeal from an interlocutory
order . . . that . . . denies a motion to dismiss filed under
Section 27.003." Tex. Civ. Prac. & Rem. Code Ann.
the trial court did not expressly deny Retzlaff's motion
to dismiss, but it did strike all of Retzlaff's
pleadings, including his motion to dismiss. The trial
court's order striking all of Retzlaff's pleadings
operated to deny Retzlaff's motion to dismiss. Thus, the
order striking Retzlaff's pleadings is the functional
equivalent of an order denying Retzlaff's motion to
dismiss. See Solano, 388 S.W.3d at 349 (concluding
an order striking a motion was the functional equivalent of
an order denying the motion). Because the challenged order is
the functional equivalent of an order denying a motion to
dismiss filed pursuant to section ...