Paulsen v. Yarrell
537 S.W.3d 224
| Tex. App. | 2017Background
- Professor James W. Paulsen submitted unsolicited amicus-style letters to a family court judge concerning a parentage/custody dispute; he used South Texas College of Law letterhead and signed as a law professor.
- Ellen A. Yarrell, counsel for a party in that case, sent a letter to Dean Donald Guter and a fax/cover to the State Bar criticizing Paulsen’s conduct and stating she was researching potential legal/ethical remedies, copying the client and others; Yarrell did not ultimately file a Bar grievance.
- Paulsen sued Yarrell (not her client) for defamation per se (based on Yarrell’s letter to the dean and the fax to the State Bar) and initially for tortious interference (later dropped); Yarrell denied liability and counterclaimed for sanctions.
- Yarrell moved for summary judgment on multiple grounds (substantial truth, opinion/nonactionable speech, attorney immunity, and litigation privilege); the trial court granted partial interlocutory summary judgments finding the dean-letter nondefamatory (opinion/true) and later granted full summary judgment on immunity grounds; Yarrell also sought dismissal under the TCPA.
- Procedurally, Paulsen filed a TCPA motion seeking to dismiss Yarrell’s TCPA motion (i.e., a TCPA counter-motion). The trial court denied that counter-motion; the court of appeals affirmed the denial and affirmed summary judgment in favor of Yarrell on the defamation claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the TCPA permits a TCPA motion to dismiss directed at another party’s TCPA motion (a TCPA counter-motion) | Paulsen: the TCPA’s definition of “legal action” includes any judicial filing, so a TCPA motion is itself a legal action subject to dismissal under the TCPA | Yarrell: a motion to dismiss is a procedural filing, not a substantive “legal action,” so the TCPA does not authorize a countermotion | Court: TCPA does not authorize a countermotion; ejusdem generis and the statute’s purpose prohibit treating routine motions as “legal actions” for TCPA dismissal; denial affirmed |
| Whether Yarrell’s statements (to Dean) were actionable defamatory facts or protected opinion | Paulsen: statements accusing him of improper attempts to influence a tribunal and ethical breaches are verifiable and actionable | Yarrell: letter combined verifiable facts (letters on letterhead) with subjective legal opinions and qualified statements (researching if Rule 3.05 applies) | Court: considering the letter as a whole, factual assertions were true and the rest were nonactionable opinion; summary judgment proper |
| Whether the dean-letter/fax were substantially true or conveyed a false defamatory meaning | Paulsen: the letter’s tone and accusations conveyed defamatory meaning beyond protected opinion | Yarrell: factual points (use of letterhead, unsolicited filings) were accurate; conclusions were opinions | Court: factual elements shown true; context made the remainder opinion—no defamatory meaning proved; summary judgment proper |
| Whether attorney immunity/litigation privilege bars the defamation claims | Paulsen: Yarrell’s communications to third parties (Dean, State Bar) were not protected litigation communications | Yarrell: communications made in connection with litigation and reporting ethical concerns are privileged/immune | Court: although resolved on opinion/true grounds, interlocutory orders and final judgment relied also on attorney immunity; judgment for Yarrell can be affirmed on these grounds as well |
Key Cases Cited
- R.R. Comm’n v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619 (Tex. 2011) (standard of review and TCPA interpretive background)
- Better Bus. Bureau of Metro. Hous., Inc. v. John Moore Servs., Inc., 441 S.W.3d 346 (Tex. App.—Houston [1st Dist.] 2013) (TCPA interpretation and procedure)
- In re Lipsky, 460 S.W.3d 579 (Tex. 2015) (defamation principles and pleading standards)
- Bentley v. Bunton, 94 S.W.3d 561 (Tex. 2002) (distinguishing verifiable factual allegations from protected opinion)
- Turner v. KTRK Television, Inc., 38 S.W.3d 103 (Tex. 2000) (construction of publication as a whole when assessing defamatory meaning)
- Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623 (Tex. 1996) (appellate review of summary-judgment grounds and affirmance if any ground supports judgment)