In a 28-page opinion, a two-judge panel of the 1st Texas Court of Appeals in Houston affirmed a take-nothing final summary judgment in Yarrell’s favor. The court affirmed the judgment after overruling Paulsen’s assertion that a letter about him that Yarrell sent to South Texas Dean Donald Guter was defamatory.
“[W]e may affirm the court’s entry of final judgment based on our conclusion that a reasonable person would have perceived the letter to Dean Guter to be Yarrell’s opinion coupled with factual statements that have been shown to be true,” Justice Michael Massengale wrote in an opinion joined by Justice Harvey Brown.
The court also rejected Paulsen’s argument that the trial court erred when it denied a motion to dismiss that he filed under the Texas Citizens Participation Act, known as the Texas Anti-SLAPP statute, in response to a motion to dismiss that Yarrell had filed under the TCPA.
“We hold that the TCPA’s dismissal mechanism does not authorize a counter-motion to dismiss as a substitute for a standard response in opposition. As such, the trial court correctly denied Paulsen’s motion to dismiss Yarrell’s TCPA motion to dismiss,” Massengale wrote.
The court also denied Paulsen’s request to hear the appeal en banc.
“I’m just glad it’s over,” said Yarrell, adding that the suit has been a “complete waste of time, energy and judicial process.”
Paulsen said the court did not rule correctly on either issue.
“What Ellen Yarrell said is considered defamatory per se. You are demeaning someone in your licensed profession,” he said in reference to the content of her letter to Guter.
And as to the TCPA point of appeal, Paulsen asserts the court “ignored the plain language of the statute,” and he had a legitimate right to file a motion under the statute.
Paulsen said he will ask the Houston appeals court for a rehearing, and if that is not granted, take the appeal to the Texas Supreme Court.
According to the opinion, the circumstances that led to the defamation suit came after Paulsen attended a court hearing in a high-profile custody lawsuit that Yarrell was handling in Harris County, and then wrote a letter to the trial judge criticizing legal decisions made on behalf of Yarrell’s client, and also criticizing the trial judge’s rulings.
That prompted Yarrell to send a letter to Guter, informing him that Paulsen had sent two critical letters on law school letterhead to the trial judge in the custody case, and expressing “sincere hope” the law school would sanction Paulsen.
As detailed in the opinion, Paulsen filed a defamation/tortious interference with contract suit against Yarrell. She denied the allegations and filed a counterclaim for sanctions. Yarrell filed several motions for summary judgment, and the trial court granted a partial summary judgment in Yarrell’s favor.
Ultimately, after interlocutory appeals and a remand, the trial court ruled the summary judgment should still be granted in Yarrell’s favor on the ground of attorney immunity, but denied Paulsen’s TCPA motion to dismiss, including his associated request for fees and costs. With that, according to the opinion, Yarrell nonsuited her claim for sanctions and the trial court granted a final judgment.
Paulsen appealed, challenging the trial court’s ruling dismissing his TCPA motion to dismiss and also the summary judgment in Yarrell’s favor on the ground she did not have judicial immunity and because her statements about him were not merely opinion.
The court affirmed the judgment of the trial court.