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Paulsen v. Yarrell

Court of Appeals of Texas, First District

May 25, 2017


         On Appeal from the County Civil Court at Law No. 1 Harris County, Texas Trial Court Case No. 1037908

          Panel consists of Justices Massengale, Brown, and Huddle.



         This is an appeal from a take-nothing final summary judgment rendered in favor of appellee Ellen A. Yarrell on appellant James W. Paulsen's defamation claims. Paulsen challenges the trial court's denial of a motion to dismiss, which attempted to invoke the Texas Citizens Participation Act. See Tex. Civ. Prac. & Rem. Code §§ 27.001-.011. Paulsen also argues that summary judgment was improper because Yarrell's statements were not protected from a claim of defamation as statements of opinion or under the litigation privilege.

         We affirm.


         Attorney Ellen A. Yarrell represented Marvin McMurrey, III in a custody dispute regarding his twin children, who were conceived through "assisted reproductive technology" with his sperm and "an unknown donor's eggs, " which were implanted in a female friend who gave birth to the children. See In re M.M.M., 428 S.W.3d 389, 392 (Tex. App.-Houston [14th Dist.] 2014, pet. denied). McMurrey initiated litigation by seeking a declaratory judgment that he was the children's father, and that the woman who carried and gave birth to the children had no parental relationship to them or any standing to pursue parental rights because "she was solely a 'surrogate or gestational carrier.'" Id.

         James W. Paulsen, a law professor at South Texas College of Law, was asked by local media to comment on the case. He reviewed publicly available information in the case file and observed a hearing. After the hearing, he wrote a letter to the trial court judge. The letter criticized legal decisions made in pursuit of the claim on behalf of McMurrey as well as rulings made by the trial judge. Throughout the letter, Paulsen referred to McMurrey by name and attributed to him actions taken on his behalf by Yarrell. For example, Paulsen argued that McMurrey improperly had sought a declaratory judgment instead of following the procedures in the Family Code for determination of parentage. Paulsen contended this was a procedural mistake which deprived the court of jurisdiction. He asserted that McMurrey had "induced" the trial court "to violate" the mother's "constitutionally protected rights" and to rule "contrary to the best interests of the children." He referred to the proceedings in the trial court as "shabby" and a "miscarriage of justice, " and he stated that the court had been "bamboozled." Finally Paulsen accused McMurrey of committing "egregious misconduct" in several different ways before and after the birth of the children.

         Yarrell responded by emailing Paulsen, stating, "I cannot begin to tell you how upset I am that you have submitted an unsolicited document to the court for review. It is highly inappropriate." Paulsen replied:

I am truly sorry that I have caused you distress. However, I do not understand what you think is inappropriate about my submission. Amicus curiae briefs have been a standard part of legal practice for centuries. More often than not, these briefs are not solicited by the court. I thought you might welcome the opportunity to discuss a serious jurisdictional issue now, rather than have it come up on appeal some months down the road, after everyone has wasted a whole lot more time and money.
I have taken the liberty of copying [the mother's] counsel on this email response because I am sure you did not intentionally exclude him from a substantive communication you already have shared with the amicus attorney for the children.

         Paulsen responded by writing, "This is not an appellate issue. I will research what avenues of recourse I may have on behalf of my client in this matter."

         Days later, Paulsen sent another letter to the trial court judge asserting that after he "submitted an amicus curiae letter brief, " Yarrell became "outraged, " "castigat[ed]" him in an email, and "vaguely threaten[ed] some sort of legal action." He argued that "unlike some pious protestations heard recently in this courtroom, " he believed that his "earlier submission" served "the best interests of two infants now in the care of a legal stranger" due to the court's "void order." Conceding that he "unknowingly may have violated some procedural or ethical rule, " Paulsen stated that he would attend the next hearing and voluntarily submit to the jurisdiction of the court should Yarrell move for sanctions.

         The following day, Yarrell sent a letter to Dean Donald J. Guter, the president and dean of South Texas College of Law, informing him that Paulsen had sent two letters to the court on the school's letterhead. Yarrell's letter stated:

While the professor states that he submits the brief "as an individual, not as a representative of the South Texas College of Law, " both letters are on the institution's letterhead and Professor Paulsen signs each letter as "Professor of Law."
Professor Paulsen's correspondence was not requested by the Court or by any party in this matter and constitutes improper attempts to influence a tribunal. Further, Professor Paulsen employs unprofessional, unduly casual and contemptuous language throughout his unsolicited opinions to the Court.
Professor Paulsen's interference with this most serious legal matter constitutes a grave breach of legal ethics and any and all such correspondence from Professor Paulsen should cease immediately.
While the professor is certainly entitled to his opinions, his conduct invites the Judge to violate Canon 2(B) of the Code of Judicial Conduct. If Judge Hellums solicited Professor Paulsen's advice she would have been required to provide notice to all attorneys in advance pursuant to Canon 3(B)(8)(c) of the Code of Judicial Conduct.
We are researching what legal options we may have to exercise on behalf of our client regarding Professor Paulsen's inappropriate conduct, including what liability South Texas College of Law may carry; we are also researching if Professor Paulsen's correspondence constitutes a violation of Texas Disciplinary Rules of Professional Conduct 3.05.
It is our sincere hope that South Texas College of Law will sanction Professor Paulsen. Please contact our office if you have any questions.

         Sarah R. Arvidsson, an associate attorney who worked with Yarrell, faxed the letter to Michelle Jordan, the attorney liaison at the Office of the Chief Disciplinary Counsel for the State Bar of Texas. The fax cover sheet referenced the pending child custody case and included a brief message to Jordan, which said:

Enclosed please find correspondence that is being hand-delivered to the President and Dean of South Texas College of Law from Ellen A. Yarrell this morning regarding recent conduct of Professor James W. Paulsen (State Bar of Texas Number 15643600).
If you have any questions or if I can be of any assistance, please do not hesitate to contact our office.

         A copy of the fax was emailed to McMurrey. About three weeks later, this transmission was returned to Yarrell with a grievance form. Yarrell did not file a grievance.

         Paulsen later emailed Yarrell, informing her that he intended to sue McMurrey for tortious interference with a contract and for defamation per se based on the letters that were sent to Dean Guter and to the State Bar. His email to Yarrell is part of the appellate record, ...

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