James W. Paulsen v. Ellen A. Yarrell

Opinion issued December 16, 2014

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-14-00351-CV
———————————
JAMES W. PAULSEN, Appellant / Cross-Appellee
v.
ELLEN A. YARRELL, Appellee / Cross-Appellant

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

OPINION

Law professor James W. Paulsen sued attorney Ellen Yarrell for defamation

and other causes of action. Pursuant to Chapter 27 of the Civil Practice and

Remedies Code—the Texas Citizens Participation Act (TCPA)—Yarrell moved to
dismiss one of Paulsen’s defamation claims. See TEX. CIV. PRAC. & REM. CODE

§§ 27.001–.011. Paulsen responded with his own TCPA motion to dismiss

Yarrell’s motion to dismiss.

The trial court granted summary judgment dismissing the defamation claim,

while denying Yarrell’s TCPA motion. The court also granted Paulsen’s motion,

but it declined to award attorney’s fees. Both parties appealed from the trial court’s

interlocutory orders: Paulsen appealed the trial court’s denial of attorney’s fees,

and Yarrell appealed the trial court’s order denying her TCPA motion.

Pursuant to the recent amendments to the TCPA and the statute authorizing

interlocutory appeals, we conclude there is no right to an interlocutory appeal from

an order denying a request for attorney’s fees under the TCPA. Accordingly, we

dismiss Paulsen’s appeal for want of jurisdiction. And because Yarrell’s motion to

dismiss was not timely filed, we affirm the trial court’s order denying her motion.

Background

James W. Paulsen, a law professor at South Texas College of Law, sued

Ellen A. Yarrell, a family-law attorney, asserting claims relating to statements she

made after Paulsen, claiming to act as an amicus curiae, submitted a letter to the

trial judge presiding over a court proceeding in which Yarrell represented a party.

In his original petition, Paulsen alleged causes of action for tortious interference

with a contract and for defamation arising from a letter Yarrell sent on

2
October 3, 2012 to his employer, his colleague, and the Office of the Chief

Disciplinary Counsel of the State Bar of Texas. Paulsen amended his petition three

times.

Meanwhile, Yarrell moved for summary judgment as to Paulsen’s tortious

interference and defamation claims, and the trial court granted partial summary

judgment in her favor. About a month later, on February 27, 2014, Paulsen served

his third amended petition, in which he again alleged defamation, dividing his

claims into two separate counts. The first count reasserted the allegations about the

October 3 letter. The second count alleged that on October 4, a facsimile was sent

to the State Bar’s Office of Chief Disciplinary Counsel, with a cover sheet

identifying the sender as Sarah Arvidsson. Paulsen alleged that the cover sheet

referred to his “recent conduct,” “gratuitously” included his bar number, and was

intended to “suggest professional misconduct” and “initiate an investigation.” The

October 4 cover sheet bore the letterhead of Ellen A. Yarrell, P.C. It was addressed

to Michelle Jordan, Attorney Liaison, Office of the Chief Disciplinary Counsel,

and it stated it was from “Ellen A. Yarrell/Sarah R. Arvidsson.” (Emphasis in

original.) It was signed by “Sarah R. Arvidsson, Associate Attorney.” Included in

the fax behind the cover sheet was a copy of Yarrell’s October 3 letter.

On March 14, 2014, Yarrell filed a motion to dismiss under the TCPA. She

argued that Paulsen’s “claims for defamation and tortious interference should be

3
dismissed because they are based on, related to, or in response to [her] exercise of

her right to petition the State Bar.” Yarrell argued that the Office of the Chief

Disciplinary Counsel is a judicial body and that she was “attempting to send

correspondence to the State Bar regarding the conduct of Professor Paulsen

through her right to petition a judicial body.” She further argued that her

communication was protected by the litigation privilege. She sought attorney’s fees

and costs as provided by the statute. See TEX. CIV. PRAC. & REM. CODE § 27.009.

In response to Yarrell’s TCPA motion to dismiss, Paulsen filed a document

entitled “Plaintiff’s Response and Motion to Dismiss Defendant’s CPRC Chapter

27 Motion to Dismiss.” Paulsen argued that Yarrell’s TCPA motion to dismiss was

itself a “legal action” as defined by the TCPA, which related to his actions in filing

amicus briefs in a state trial court. He sought dismissal of her motion to dismiss

and attorney’s fees as provided by the statute. Among other things, Paulsen argued

that Yarrell’s motion to dismiss was untimely. Yarrell responded that her motion

was timely because it was filed within 60 days of service of the newly-pleaded

count regarding the October 4 cover sheet.

In addition to her TCPA motion to dismiss, Yarrell filed a motion for partial

summary judgment as to Paulsen’s defamation and tortious interference claims.

The trial court granted Yarrell’s motion for summary judgment and denied her

TCPA motion to dismiss. The court also granted Paulsen’s TCPA motion to

4
dismiss Yarrell’s TCPA motion to dismiss, but it denied his request for attorney’s

fees and court costs.

Analysis

Both Paulsen and Yarrell filed notices of interlocutory appeal. Paulsen

appeals the trial court’s denial of attorney’s fees in conjunction with his TCPA

motion, which the trial court granted. Yarrell appeals only the trial court’s denial of

her motion to dismiss.

I. Paulsen’s appeal

Ordinarily, Texas appellate courts have jurisdiction only over final

judgments. Rusk State Hosp. v. Black, 392 S.W.3d 88, 92 (Tex. 2012). An

exception to this general rule exists when a statute authorizes an interlocutory

appeal. CMH Homes v. Perez, 340 S.W.3d 444, 447 (Tex. 2011). The Civil

Practice and Remedies Code provides for an interlocutory appeal from an order

that “denies a motion to dismiss filed under Section 27.003.” TEX. CIV. PRAC. &

REM. CODE § 51.014(a)(12). This new statutory provision was enacted in 2013,

when the Texas Legislature modified the statutory authorization for interlocutory

appeals from orders pursuant to Chapter 27 of the Civil Practice and Remedies

Code. See Act of May 24, 2013, 83rd Leg., R.S., Ch. 1042, § 4, 2013 Tex. Gen.

Laws 2500 (current version at TEX. CIV. PRAC. & REM. CODE § 51.014(a)(12)).

This new statutory provision evidently reflects the legislative response to a split in

5
authority that had developed in the courts of appeals concerning whether a right of

interlocutory appeal had been created by Section 27.008. See generally Kinney v.

BCG Attorney Search, Inc., No. 03-12-00579-CV, 2014 WL 1432012, at *3 (Tex.

App.—Austin Apr. 11, 2014, pet. filed); see also Jennings v. WallBuilder

Presentations, Inc. ex rel. Barton, 378 S.W.3d 519, 528 (Tex. App.—Fort Worth

2012, pet. denied) (“construing section 27.008 with precision and with fidelity to

the terms by which the legislature has expressed its wishes, we decline to ‘imply’

into the statute . . . a right of interlocutory appeal from a timely-signed order

denying a timely-filed chapter 27 motion to dismiss”).

The order that Paulsen challenges on appeal is a denial of attorney’s fees

ancillary to granting a motion to dismiss filed under Section 27.003. Because

Section 51.014(a)(12) permits an appeal only from an order that “denies a motion

to dismiss filed under Section 27.003,” and because we are obliged to interpret the

scope of our interlocutory appellate jurisdiction narrowly, we conclude that

Paulsen’s interlocutory appeal from the denial of attorney’s fees is not authorized

by statute. We raised this jurisdictional issue and ordered Paulsen to provide the

court with a basis for us to exercise jurisdiction over the appeal. See TEX. R. APP.

P. 42.3(a).

In response to our notice, Paulsen insists that he appeals the “partial denial

of his motion, not the partial grant.” We do not agree that the interlocutory order

6
denying attorney’s fees in this case is an order that “denies a motion to dismiss

filed under Section 27.003.” TEX. CIV. PRAC. & REM. CODE § 51.014(a)(12).

Paulsen obtained all the relief he requested that was authorized by Section 27.003:

the trial court granted his motion to dismiss Yarrell’s “legal action.” Id. § 27.003.

The aspect of Paulsen’s motion that was denied—the request for attorney’s fees—

was a distinct interlocutory ruling that did not deny the “motion to dismiss filed

under Section 27.003,” but instead it denied a request for fees as authorized by a

separate provision, Section 27.009. This understanding of the limited scope of

Chapter 27 interlocutory appeals is bolstered by the “appeal” provision of the

TCPA, which also limits its reference to expedited appeals to those relating to “a

motion to dismiss under Section 27.003.” Id. § 27.008. Because we conclude that

Paulsen’s attempted interlocutory appeal from the denial of attorney’s fees is not

authorized by the text of Chapter 27, we also reject his suggestion that disallowing

the interlocutory appeal would constitute a failure to construe Chapter 27 “liberally

to effectuate its purpose and intent fully.” See id. § 27.011(b).

Paulsen further contends that “the rule of strict construction does not apply”

in this circumstance, relying on the Code Construction Act, which he contends

contradicts the “rule of strict construction” by purportedly authorizing courts to

rely on legislative history and other considerations. See TEX. GOV’T CODE

§ 311.023. We reject this argument, which fails to distinguish our Supreme Court’s

7
repeated admonition that the categories of interlocutory appeals authorized by

section 51.014 are “strictly” construed as narrow exceptions to the general rule that

only final judgments and orders are appealable. E.g., CMH Homes, 340 S.W.3d at

447; Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 355 (Tex. 2001). Even

if we were to agree with Paulsen that legislative history in the form of a bill

sponsor’s statement could justify a departure from the plain textual limitations on

the scope of interlocutory review, nothing in the legislative history quoted by

Paulsen makes any reference to interlocutory appeals to review denials of

attorney’s fees in connection with orders granting motions to dismiss. See House

Comm. on State Affairs, Bill Analysis, Tex. H.B. 2935, 83rd Leg., R.S. (2013),

available at http://www.legis.state.tx.us/tlodocs/83R/analysis/ pdf/HB02935E.pdf

#navpanes=0. Moreover, the legislative history quoted by Paulsen actually

contradicts the text of the statute by indicating the bill sponsor’s “statement of

intent” to include interlocutory appeals from “the denial or grant” of motions to

dismiss, id., despite the fact that the enacted legislation, Section 51.014(a)(12), is

expressly limited by its terms to authorizing review of an order that “denies a

motion to dismiss.” In short, we reject Paulsen’s resort to legislative history to alter

the meaning of the text that the Legislature actually enacted.

We conclude that the order denying Chapter 27 attorney’s fees is an order

from which no statutory right to interlocutory appeal lies, and we hold that we lack

8
jurisdiction over Paulsen’s appeal. TEX. CIV. PRAC. & REM. CODE § 51.014(a)(12).

Accordingly, Paulsen’s appeal is dismissed for want of jurisdiction.

II. Yarrell’s appeal

Yarrell argues that her motion to dismiss was timely filed and that the trial

court erred by denying it because Paulsen’s claim was barred as a matter of law by

the doctrine of absolute privilege. The order that Yarrell challenges on appeal is

one denying a motion to dismiss filed under Section 27.003. We have jurisdiction

over this interlocutory appeal. See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(12).

The TCPA provides a procedure for dismissing meritless suits that are based

on the defendant’s exercise of the rights of free speech, petition, or association as

defined within the statute. Id. § 27.003. If the legal action is “based on, relates to,

or is in response to a party’s” exercise of those rights, “that party may file a motion

to dismiss the legal action.” Id. § 27.003(a). To obtain dismissal under the TCPA, a

movant must show “by a preponderance of the evidence that the legal action is

based on, relates to, or is in response to the party’s exercise of the right of free

speech; the right to petition; or the right of association.” Id. § 27.005(b). A motion

to dismiss under the TCPA “must be filed not later than the 60th day after the date

of service of the legal action,” but a trial court may extend the time for filing such

a motion “on a showing of good cause.” Id. § 27.003(b). In deciding whether to

grant a motion under the TCPA and dismiss the lawsuit, a trial court will “consider

9
the pleadings and supporting and opposing affidavits stating the facts on which the

liability or defense is based.” Id. § 27.006(a).

Yarrell filed her motion to dismiss on March 14, 2014. She argues that it

was timely because it was filed within 60 days of service of Paulsen’s third

amended petition (filed on February 27, 2014), which alleged defamation in regard

to the October 4 transmittal to the Office of Chief Disciplinary Counsel for the

State Bar of Texas of a fax cover sheet and her October 3 letter to Paulsen’s

employer. She contends that Paulsen’s allegation of defamation related to the

October 4 transmittal constituted a “legal action” under the statute which triggered

anew the 60-day period for filing a motion to dismiss. Paulsen disputes that the

defamation claim relating to the October 4 transmittal is a “legal action” for

purposes of the TCPA, and he argues, among other things, that Yarrell’s motion

was not timely filed.

Determining whether Paulsen’s third amended petition was a covered “legal

action” and whether Yarrell’s motion was timely filed involve questions of

statutory construction which we review de novo. See Tex. Lottery Comm’n v. First

State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010); Better Bus. Bureau of

Metro. Houston, Inc. v. John Moore Servs., Inc., 441 S.W.3d 345, 353 (Tex.

App.—Houston [1st Dist.] 2013, pet. denied). “In interpreting statutes, our primary

purpose is to give effect to the legislature’s intent by relying on the plain meaning

10
of the text adopted by the legislature, unless a different meaning is supplied by

statutory definition or is apparent from the context, or the plain meaning leads to

absurd results.” John Moore Servs., 441 S.W.3d at 353 (citing Tex. Lottery

Comm’n, 325 S.W.3d at 635).

An amended pleading that does not add new parties or claims does not

restart the deadline for filing a motion to dismiss under the TCPA. See In re Estate

of Check, 438 S.W.3d 829, 837 (Tex. App.—San Antonio 2014, no pet.).

Permitting the 60-day deadline to be reset each time a party amended a petition or

counterclaim, regardless of whether new claims or parties have been introduced,

would frustrate the expressed legislative purpose of the TCPA, “which is to allow a

defendant early in the lawsuit to dismiss claims that seek to inhibit a defendant’s

constitutional rights to petition, speak freely, associate freely, and participate in

government as permitted by law.” Id. at 836; see TEX. CIV. PRAC. & REM. CODE

§ 27.002; see also Pickens v. Cordia, 433 S.W.3d 179, 182–83 (Tex. App.—Dallas

2014, no pet.) (noting that the TCPA provides means for “expedited dismissal of

unmeritorious suits”); Summersett v. Jaiyeola, 438 S.W.3d 84, 86 (Tex. App.—

Corpus Christi 2013, pet. denied) (noting that the TCPA “provides for the early

dismissal of legal actions”); cf. James v. Calkins, No. 01-13-00118-CV, 2014 WL

4100692, at *6 (Tex. App.—Houston [1st Dist.] Aug. 21, 2014, no pet. h.) (holding

that, when the original petition was filed before the TCPA effective date, an

11
amended petition filed after the effective date was subject to the TCPA dismissal

procedure because the new claims relied on a different factual basis than the

earlier-pleaded claims).

In this case, the third amended petition filed on February 27 alleged for the

first time that the fax cover letter was transmitted on October 4. The October 4 fax

conveyed the October 3 letter to the State Bar Office of Chief Disciplinary

Counsel.

In her motion to dismiss, Yarrell argued that she “intended to inform the

Disciplinary Counsel of Professor Paulsen’s conduct,” and his subsequent suit for

defamation “clearly” infringed on her “constitutional right to petition the State Bar

regarding another lawyer’s conduct.” From the outset of Paulsen’s lawsuit, it has

been premised in part on the transmission of Yarrell’s October 3 letter to the Office

of Chief Disciplinary Counsel. For example, Paulsen’s original petition, filed

September 27, 2013, alleged that Yarrell “copied the Office of the Chief

Disciplinary Counsel of the State Bar of Texas” on the October 3 letter and that she

published “false statements” to “an official with the State Bar of Texas.”

Paulsen’s original petition alleged that Yarrell published allegedly false and

defamatory statements to an official of the State Bar of Texas. Despite the

additional details included in the third amended petition in an attempt to

distinguish two distinct defamation claims, the third amended petition relied on the

12
same essential factual allegations as the claim stated in his original petition, and

therefore it did not reset the deadline for Yarrell to file a motion to dismiss under

the TCPA. See Check, 438 S.W.3d at 837.

Paulsen’s original petition was served in October 2013, and Yarrell’s motion

to dismiss under the TCPA relating to her right to petition was due 60 days

thereafter. See TEX. CIV. PRAC. & REM. CODE § 27.003(b). Yarrell’s motion was

not filed until March 2014, and therefore it was untimely. A trial court does not err

by denying an untimely filed motion to dismiss under the TCPA. See Check, 438

S.W.3d at 837. Accordingly, we hold that the trial court properly denied Yarrell’s

motion to dismiss. In light of this holding, we do not reach Yarrell’s other

arguments on the merits of her motion to dismiss.

Conclusion

We dismiss Paulsen’s interlocutory appeal for want of jurisdiction, and we

affirm the order of the trial court denying Yarrell’s motion to dismiss.

Michael Massengale
Justice

Panel consists of Justices Massengale, Brown, and Huddle.

13