JAMES W. PAULSEN, Appellant
ELLEN A. YARRELL, Appellee
Appeal from the County Civil Court at Law No. 1 Harris
County, Texas Trial Court Case No. 1037908
consists of Justices Massengale, Brown, and Huddle.
MICHAEL MASSENGALE, JUSTICE
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
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.'"
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.
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
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."
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.
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
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
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
It is our sincere hope that South Texas College of Law will
sanction Professor Paulsen. Please contact our office if you
have any questions.
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,
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.
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.
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, ...