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Retzlaff v. Klein

Court of Appeals of Texas, Fourth District, San Antonio

August 2, 2017

Tom RETZLAFF, Appellant
v.
Philip R. KLEIN, Klein Investigations & Consulting, and James W. Landess, Appellees

         From the 73rd Judicial District Court, Bexar County, Texas Trial Court No. 2014-CI-17145 Honorable Antonia Arteaga, Judge Presiding

          Karen Angelini, Justice Patricia O. Alvarez, Justice Irene Rios, Justice

          MEMORANDUM OPINION

          Karen Angelini, Justice

         This 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

         Retzlaff 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.[1]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 websites.

         In 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.

         Thereafter, 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.

         The 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.

         The 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.

         Retzlaff filed a notice of appeal challenging the denial of his motion to dismiss under the TCPA. Retzlaff appears pro se in this appeal.[2]

         Appellate Jurisdiction

         We 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.).

         Section 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. § 51.014(a)(12).

         Here, 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 ...


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