James W. Paulsen v. Ellen A. Yarrell
455 S.W.3d 192
| Tex. App. | 2014Background
- James W. Paulsen (law professor) sued Ellen A. Yarrell (attorney) for defamation and tortious interference based on an October 3 letter and an October 4 fax transmission to the State Bar’s Office of Chief Disciplinary Counsel.
- Paulsen amended his petition multiple times; his third amended petition (Feb. 27, 2014) split defamation into two counts and added detail about the October 4 fax cover sheet.
- Yarrell filed a TCPA (Texas Citizens Participation Act) motion to dismiss on March 14, 2014, asserting her communications were protected petitioning and sought attorney’s fees under the TCPA.
- Paulsen filed a response titled both a response and his own TCPA motion to dismiss Yarrell’s TCPA motion, arguing Yarrell’s motion was untimely and seeking fees.
- The trial court granted summary judgment dismissing the defamation claim, denied Yarrell’s TCPA motion as untimely, granted Paulsen’s motion to dismiss Yarrell’s TCPA motion but denied Paulsen attorney’s fees.
- Both parties appealed: Yarrell appealed the denial of her TCPA dismissal; Paulsen appealed the denial of attorney’s fees ancillary to his granted TCPA motion.
Issues
| Issue | Plaintiff's Argument (Paulsen) | Defendant's Argument (Yarrell) | Held |
|---|---|---|---|
| Whether interlocutory appeal lies from denial of TCPA attorney’s fees | Paulsen argued the denial of fees is appealable as part of his Chapter 27 motion relief | Yarrell argued interlocutory statute permits appeals only from denials of motions to dismiss, not denials of fees | Dismissed Paulsen’s appeal for want of jurisdiction — denial of fees is not an appealable interlocutory order under §51.014(a)(12) |
| Whether Yarrell’s TCPA motion to dismiss was timely filed | Paulsen argued the TCPA 60-day clock started with the original petition (served Oct. 2013); thus motion filed March 2014 was untimely | Yarrell argued the third amended petition (Feb. 27, 2014) asserted a new October 4 transmission and restarted the 60-day period | Affirmed trial court: Yarrell’s March 14 motion was untimely because the third amended petition relied on the same essential facts as earlier pleadings and did not reset the 60-day deadline |
| Whether the third amended petition constituted a new “legal action” resetting the 60-day TCPA deadline | Paulsen: amended pleading did not create a new action; TCPA deadline should run from original service | Yarrell: the new allegation about the October 4 transmittal created a new actionable communication triggering a new 60-day period | Court held the amendment did not add a new claim for TCPA timing purposes; deadline was not reset |
| Whether absolute privilege or other merits-based defenses required dismissal on appeal | Paulsen argued substantive defenses or privileges bar his claim | Yarrell contended litigation privilege/absolute privilege applied | Court declined to reach merits (privilege) because motion was untimely; denial affirmed on timing grounds |
Key Cases Cited
- Rusk State Hosp. v. Black, 392 S.W.3d 88 (Tex. 2012) (general principle that appellate jurisdiction is limited to final judgments absent statutory authority)
- CMH Homes v. Perez, 340 S.W.3d 444 (Tex. 2011) (interlocutory appeal provisions construed narrowly)
- Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352 (Tex. 2001) (interlocutory appeal exceptions are narrow)
- Jennings v. WallBuilder Presentations, Inc. ex rel. Barton, 378 S.W.3d 519 (Tex. App.—Fort Worth 2012, pet. denied) (statutory construction of TCPA interlocutory review)
- Tex. Lottery Comm’n v. First State Bank of DeQueen, 325 S.W.3d 628 (Tex. 2010) (statutory construction principles reviewed de novo)
- Better Bus. Bureau of Metro. Houston, Inc. v. John Moore Servs., Inc., 441 S.W.3d 345 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) (TCPA interpretation and procedure)
- In re Estate of Check, 438 S.W.3d 829 (Tex. App.—San Antonio 2014, no pet.) (amended pleading that does not add new claims or parties does not restart TCPA filing deadline)
- Pickens v. Cordia, 433 S.W.3d 179 (Tex. App.—Dallas 2014, no pet.) (TCPA provides expedited dismissal of unmeritorious suits)
- Summersett v. Jaiyeola, 438 S.W.3d 84 (Tex. App.—Corpus Christi 2013, pet. denied) (TCPA aims for early dismissal of legal actions)