Tom Retzlaff v. Philip R. Klein, Klein Investigations & Consulting, and James W. Landess
04-16-00675-CV
| Tex. App. | Aug 2, 2017Background
- Tom Retzlaff (pro se) filed pleadings in a child‑custody related suit to challenge discovery directed at a nonparty (GoDaddy), despite having been previously declared a vexatious litigant and required to obtain prefiling permission.
- The Kleins (defendants in the underlying suit) moved to strike Retzlaff’s pleadings and filed a motion for contempt alleging he willfully violated the vexatious‑litigant order by filing pro se pleadings without permission.
- Retzlaff moved to dismiss the contempt motion under the Texas Citizens Participation Act (TCPA), claiming the contempt motion was a retaliatory suit that chilled his right to petition; the trial court struck all his pleadings (including the TCPA motion).
- Retzlaff appealed under TEX. CIV. PRAC. & REM. CODE § 51.014(a)(12) (interlocutory appeal from denial of TCPA motion); the court treated the order striking the motion as the functional equivalent of denying the motion and assumed jurisdiction.
- The court considered (1) whether the vexatious‑litigant order remained valid, (2) whether the TCPA applied to the contempt motion, (3) whether the Kleins established a prima facie contempt case, and (4) whether Retzlaff raised any valid defenses (e.g., judicial‑communications privilege).
Issues
| Issue | Plaintiff's Argument (Retzlaff) | Defendant's Argument (Kleins) | Held |
|---|---|---|---|
| Whether appellate court has jurisdiction over appeal of TCPA dismissal | The trial court denied his TCPA motion (by striking pleadings); appeal authorized | Order striking the pleadings is functionally equivalent to denying the TCPA motion | Court has jurisdiction under §51.014(a)(12); strike = functional denial |
| Validity/applicability of vexatious‑litigant order | The prior vexatious order was vacated on appeal and thus not enforceable; or statutes don’t apply because he was not an original plaintiff | Prior appellate decision affirmed the vexatious designation; Texas statutes require prefiling permission and apply to his pro se filings | Court rejects Retzlaff’s arguments; vexatious order remains enforceable and statutes apply |
| Whether the TCPA applies to the contempt motion (i.e., contempt was a retaliatory suit) | Motion for contempt was filed in response to his exercise of the right to petition and thus falls under the TCPA | Motion enforces a valid vexatious‑litigant order and is an enforcement action authorized by chapter 11, not a retaliatory lawsuit | TCPA does not apply; Retzlaff failed to show the contempt motion targeted a valid exercise of First Amendment petition rights |
| Whether Kleins established prima facie contempt and whether Retzlaff raised a valid defense (judicial‑communications privilege) | (Defense) Judicial‑communications privilege shields Kleins’ pleadings and provides a defense to contempt | Kleins produced the vexatious order, the pleadings Retzlaff filed, and alleged willful violation; privilege not properly invoked on appeal (no record cites) | Kleins showed a prima facie contempt case; Retzlaff’s privilege argument was inadequately briefed and not considered; trial court did not err |
Key Cases Cited
- In re Lipsky, 460 S.W.3d 579 (Tex. 2015) (TCPA framework and burdens explained)
- CMH Homes v. Perez, 340 S.W.3d 444 (Tex. 2011) (appellate jurisdiction over interlocutory orders when authorized by statute)
- GoAmerica Commc’ns Corp. v. Retzlaff, 356 S.W.3d 689 (Tex. App.—El Paso 2011) (prior appellate decision affirming Retzlaff’s vexatious‑litigant designation)
- Ex parte Chambers, 898 S.W.2d 257 (Tex. 1995) (elements required to establish contempt for disobeying a court order)
- Hernandez v. Hayes, 931 S.W.2d 648 (Tex. App.—San Antonio 1996) (judicial‑communications privilege bars actions based on statements in judicial proceedings)
- James v. Brown, 637 S.W.2d 914 (Tex. 1982) (scope of judicial communications privilege)
- Daystar Residential, Inc. v. Collmer, 176 S.W.3d 24 (Tex. App.—Houston [1st Dist.] 2004) (privilege may extend to pre‑litigation statements in contemplation of proceedings)