United States: TCPA Attorney's Fees Must Be Reasonable, Not Just Or Equitable

What a difference a comma makes! Compare "Let's eat, Grandma," to "Let's eat Grandma." Less dramatic but just as significant is the Texas Supreme Court's parsing of punctuation in Sullivan v. Abraham, No. 14-0987, 59 Tex. S. Ct. J. 652 (April 15, 2016).

That case was an appeal from an award of attorney's fees under the Texas Citizens Participation Act (TCPA). The TCPA provides for the expedited dismissal of a legal action that implicates a defendant's right of free speech or other First Amendment right when the party filing the action cannot establish the Act's threshold requirement of a prima facie case. Tex. Civ. Prac. & Rem. Code § 27.005. A successful motion to dismiss under the Act entitles the moving party to an award of court costs, reasonable attorney's fees, and other expenses incurred in defending against the legal action. Id. § 27.009(a).

When Sullivan moved under the TCPA to dismiss Abraham's defamation suit, the trial court granted the motion and awarded attorney's fees—but only $6,500 of the requested $67,290. Dissatisfied with the award, Sullivan appealed.

The court of appeals affirmed, concluding that although the TCPA required an award of "reasonable attorney's fees" the trial court could award a lesser amount if "justice and equity" required.

The Act provides:

Id. § 27.009(a).

The issue before the Court was whether "justice and equity" applied to "reasonable attorney's fees" or only to "other expenses."

The parties relied on different canons of statutory construction. Abraham urged the series-qualifier canon, which provides that "[w]hen there is a straightforward, parallel construction that involves all nouns or verbs in a series, a prepositive or postpositive modifier normally applies to the entire series." Anton Scalia & Bryan A. Garner, Reading Law: the Interpretation of Legal Texts 147 (2012). Under this canon, the phrase "as justice and equity may require" would modify all three items in the series.

By contrast, Sullivan invoked the last-antecedent canon, which provides "that a qualifying phrase in a statute or the Constitution must be confined to the words and phrases immediately preceding it to which it may, without impairing the meaning of the sentence, be applied." Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d 578, 580 (Tex. 2000). Under this canon, the phrase "as justice and equity may require" would modify only the last item in the series.

The Court acknowledged that either—but not both—canons could apply, so neither controlled. The tie breaker, in the Court's view, was a comma.

The Court agreed with Sullivan's argument that the use of the Oxford comma was indicative of legislative intent to limit the justice-and-equity modifier. The Oxford or serial comma is the comma placed immediately before the coordinating conjunction in a series of three or more terms. See, e.g., The Chicago Manual of Style § 6.19, at 245 (15th ed. 2003).

"Here it is the comma placed after the phrase 'reasonable attorney's fees' and before the coordinating conjunction 'and' which separates the second and third item in the series . . . . We agree that its use here together with the inclusion of the word 'other', . . . indicate the Legislature intended to limit the justice-and-equity modifier to other expenses."

Because the trial court erred in considering "justice and equity" in awarding "reasonable attorney's fees" and the appellate court likewise erred in including them in its standard of review, the Court reversed and remanded.

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