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Retzlaff v. Goamerica Communications Corp.

Tom Retzlaff appeals from orders dismissing a suit and declaring him a vexatious litigant. There was no abuse of discretion in the trial court's finding that Retzlaff is a vexatious litigant. When Retzlaff failed to post security, GoAmerica Communications Corp. filed a motion to dismiss the case with prejudice. Within the body of this motion, GoAmerica sought dismissal "as to all Defendants," but it provided no argument to demonstrate that it had standing to obtain a dismissal for the other defendants. Because the other defendants did not make a motion under Texas Civil Practice and Remedies Code §11.051, they are not entitled to a dismissal with prejudice. Retzlaff's challenges to the constitutionality of the vexatious litigant statutes are rejected. The trial court's order of June 26, 2008, which contained various injunctive provisions, is vacated. The court's judgment dismissing this case with prejudice is reversed in part, as it pertains to any defendants other than GoAmerica. In all other respects, the judgment is affirmed. The cause is remanded. El Paso Court of Appeals, No. 08-09-00115-CV, 10-07-2011.

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OPINION

Tom Retzlaff appeals from orders dismissing a suit and declaring him a vexatious litigant. We vacate in part, affirm in part, reverse in part, and remand.

GoAmerica Communications Corporation provides telephone relay services to hearing-impaired and speech-impaired individuals.*fn1 Retzlaff sued GoAmerica in propria persona, alleging that it relayed a profane and threatening call to his telephone in the middle of the night. He sought damages for intentional infliction of emotional distress and negligence. In addition to GoAmerica, Retzlaff named Aaron David Dubrinski and John and/or Jane Doe as defendants. Dubrinski filed a special appearance, identifying himself as the chairman and founder of GoAmerica (and noting that the correct spelling of his name is “Dobrinsky”). The record does not include a ruling on the special appearance. In his petition, Retzlaff described John and Jane Doe as unidentified GoAmerica employees who placed the offending call. The record does not demonstrate that these defendants were ever served.

GoAmerica filed a motion to declare Retzlaff a vexatious litigant. The motion was served on Retzlaff by fax on June 24, 2008. That evening, Retzlaff sent David Denton, one of GoAmerica’s attorneys, an email, claiming that the fax was too big for his fax machine to handle and that, as a result, he only received the first few pages of the motion. Retzlaff also stated that he intended to sue Denton and his law firm in small claims court for damage to the fax machine. The email, which was replete with vulgar language and exclamation points, included the following passage:

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