Michael Quinn Sullivan v. Salem Abraham

IN THE SUPREME COURT OF TEXAS
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NO . 14-0987
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MICHAEL QUINN SULLIVAN, PETITIONER,
v.

SALEM ABRAHAM , RESPONDENT

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ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS
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Argued January 14, 2016

JUSTICE DEVINE delivered the opinion of the Court.

The Texas Citizens Participation Act 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). The trial court in this case granted the motion and awarded

these costs, fees, and expenses. The prevailing party was dissatisfied with the award, however, and

appealed, arguing that it did not conform to the statute’s requirements. The court of appeals

affirmed. 472 S.W.3d 677 (Tex. App.—Amarillo 2014). Because the courts below used the wrong

standard in determining the attorney’s fees part of the award, we reverse and remand.
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Salem Abraham sued Michael Quinn Sullivan for defamation. Sullivan generally denied the

claim and moved to dismiss the suit under the Texas Citizens Participation Act (TCPA). The TCPA

provides an expedited procedure for the dismissal of certain legal actions directed at a party’s free

speech or other First Amendment right. See TEX . CIV . PRAC. & REM . CODE §§ 27.001-.011. If the

court orders dismissal, the Act further provides for the award of court costs, attorney’s fees, and

other expenses, as well as sanctions “sufficient to deter” future “similar actions.” Id. § 27.009(a).

Under this provision, Sullivan requested $67,290.00 in attorney’s fees, $4,381.01 in costs and

expenses, and sanctions. After a hearing on Sullivan’s motion, the trial court issued a letter ruling,

granting dismissal and announcing “that justice and equity necessitate Defendant’s recovery of

reasonable attorney’s fees in the amount of $6,500.00 and costs in the amount of $1,500.00.” The

court also denied sanctions in the letter ruling. The court thereafter signed its formal order,

clarifying that the $1,500.00 identified in the letter ruling was for expenses and that Sullivan should

also recover court costs. Although the judgment generally favored Sullivan, he nevertheless

appealed to challenge the inadequacy of the court’s award of attorney’s fees and expenses, and the

court’s failure to award sanctions.

The court of appeals affirmed the trial court’s award of attorney’s fees and expenses, but

reversed and remanded for the trial court to reconsider its decision to deny sanctions. 472 S.W.3d

at 683. The appellate court concluded that the TCPA made an award of sanctions mandatory but

tempered “the quantum or extent of the sanction . . . by what the trial court ‘determines sufficient’”

to deter similar actions. Id. (citing TEX . CIV . PRAC. & REM . CODE § 27.09(a)(2). The court further

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concluded the TCPA required an award of “reasonable attorney’s fees” but also conferred on the trial

court discretion to award a lesser amount if “justice and equity” so required. Id. at 681-82. The

appellate court’s analysis purported to follow Bocquet v. Herring, 972 S.W.2d 19 (Tex. 1998), a case

that involved an award of attorney’s fees under the Declaratory Judgments Act. Id. at 681. Sullivan

perfected an appeal to this Court; Abraham did not.

II

Sullivan argues the court of appeals’ reliance on Bocquet is misplaced because attorney’s fees

are determined differently under the Declaratory Judgments Act than under the TCPA. Sullivan

submits that a fee award under the TCPA is mandatory and measured simply by reasonableness,

whereas a fee award under the Declaratory Judgments Act is permissive and subject to four express

limitations—that it be “reasonable and necessary” and also “equitable and just.” Compare TEX . CIV .

PRAC. & REM . CODE § 27.009(a)(1), with id. § 37.009.

We agree the two statutes are different. The Declaratory Judgments Act provides:

In any proceeding under this chapter, the court may award costs and reasonable and
necessary attorney’s fees as are equitable and just.

Id. § 37.009. The TCPA, by comparison, provides in relevant part:

(a) If the court orders dismissal of a legal action under this chapter, the court shall
award to the moving party: (1) court costs, reasonable attorney’s fees, and other
expenses incurred in defending against the legal action as justice and equity may
require; and (2) sanctions . . .

Id. § 27.009(a). The distinctions noted by Sullivan are there, but the respective statutes also both

incorporate notions of justice and equity.

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 In Bocquet, we concluded that section 37.009 of the Declaratory Judgments Act imposed four

limitations on the court’s discretion to award attorney’s fees, requiring a multi-faceted appellate

review because the limitations involved both evidentiary and discretionary matters. Bocquet, 972

S.W.2d at 21. In describing this review, we said:

Therefore, in reviewing an attorney fee award under the Act, the court of appeals
must determine whether the trial court abused its discretion by awarding fees when
there was insufficient evidence that fees were reasonable and necessary, or when the
award was inequitable or unjust. Unreasonable fees cannot be awarded, even if the
court believed them just, but the court may conclude that it is not equitable or just to
award even reasonable and necessary fees.

Id. Borrowing from this analysis, the court of appeals here concludes that attorney’s fees under the

TCPA similarly “can be no more than what is reasonable but may be less than that in view of

pertinent considerations of justice and equity.” 472 S.W.3d at 681-82. The court’s analysis thus

assumes that limitations of “justice and equity” apply to attorney’s fees under the TCPA and that the

trial court therefore possessed the discretion to award something less than a reasonable attorney’s

fee.

Sullivan complains that the court’s analysis is incorrect because considerations of “justice

and equity” under the TCPA only apply to the trial court’s award of “other expenses,” and not to

“reasonable attorney’s fees.” He submits the provision’s grammatical structure confirms this

construction. Abraham argues to the contrary, but also responds that Sullivan waived this argument

by not raising it below. We disagree.

Although Sullivan has further refined his argument in this Court, his complaint in the court

of appeals was adequate to preserve the issue for our review. See Weeks Marine, Inc. v. Garza, 371

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S.W.3d 157, 162 (Tex. 2012) (“Appellate courts must treat the statement of an issue ‘as covering

every subsidiary question that is fairly included.’”) (quoting TEX . R. APP . P. 38.1(f)). In the court

of appeals, Sullivan argued entitlement to all his costs and reasonable attorney’s fees, thus rejecting

the notion that the trial court possessed discretion to adjust the amount of reasonable attorney’s fees

“as justice and equity may require.” We turn then to the statutory text.

The parties rely on different canons of statutory construction to advance their respective

positions. Abraham relies on 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.” ANTONIN 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 relies on 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 only modify the last item in the series.

Either canon might reasonably apply to this text, but they cannot both apply because they

point in different directions. And thus, without more, neither aids in our understanding of the statute.

Sullivan, however, also argues that the Legislature’s use of punctuation confirms his reading of the

statue.

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 “Punctuation is a permissible indicator of meaning.” SCALIA & GARNER, supra at161 (citing

United States Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 454 (1993)).

Indeed, punctuation “will often determine whether a modifying phrase or clause applies to all that

preceded it or only to a part.” Id. Thus, “[p]roperly placed commas [c]ould cancel the last

antecedent canon” and vice versa. Id. Scalia and Garner offer the following example: “You will be

punished if you throw a party, or engage in any other activity, that damages the house.” Id. The

comma after “activity” does substantial work: It signals that the phrase “that damages the house”

modifies both “party” and “any other activity.” Id. at 162. Absent the comma after “activity,” the

last-antecedent canon would be triggered and the phrase “that damages the house” would modify

only “any other activity.” Id.

Applying this example to the statutory text here, the insertion of a comma before “as justice

and equity may require,” would have indicated that the phrase was to modify the entire series. Thus,

had this been the Legislature’s intent, the statute would have read that the court shall award: “court

costs, reasonable attorney’s fees, and other expenses incurred in defending against the legal action[,]

as justice and equity may require.” Similarly, the Legislature could have inserted a comma after

“other expenses” to indicate that the phrase “incurred in defending the legal action as justice and

equity may require” was to modify all items in the series. But the statute does not include a comma

after “other expenses” or after “legal action,” and their absence indicates an intent to limit the

justice-and-equity modifier to the last item in the series.

But Abraham argues that the last item in the list is simply “other expenses” and that the

phrase “incurred in defending against the legal action” modifies all three of the preceding items. In

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this regard, Abraham directs our attention to Cruz v. Van Sickle, 452 S.W.3d 503 (Tex. App.—Dallas

2014, pet. denied). In that case, the court of appeals found the last-antecedent rule of construction

“neither controlling nor inflexible,” and concluded that it was senseless to limit the phrase to other

expenses or require the Legislature to repeatedly place incurred after each of the three items to

express the requirement. Id. at 523. But as Scalia and Garner explain such repetition was

unnecessary. See SCALIA & GARNER, supra at 161-62. The insertion of a comma after “other

expenses” would have separated the last item from the descriptive phrase that follows, indicating its

application to the entire list. See id.

Abraham argues, however, that the phrase “incurred in defending the legal action” must apply

to all three items in the series, because construing the statute to allow awards of “court costs” and

“reasonable attorney’s fees” that were not “incurred in defending the legal action” would be

senseless. And, he contends, if “incurred in defending the legal action” modifies all items in the

series, then the phrase “as justice and equity may require” must similarly modify all three, because

both phrases appear together after the third item in the series and are not separated by a comma.

Abraham’s argument, however, overlooks the inclusion of the word “other.” By referring to court

costs, reasonable attorney’s fees, and “other expenses incurred,” the statute reflects both that costs

and attorney’s fees are “expenses” and that they must all be “incurred in defending the legal action.”

In other words, “court costs” and “reasonable attorney’s fees” are “expenses incurred in defending

the legal action” and are thus recoverable, and “other expenses incurred in defending the legal

action” are also recoverable, but only “as justice and equity may require.”

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 Sullivan further points to the use of the Oxford comma as 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 terms in the series. Sullivan submits that had the Legislature intended for there to

be an equitable-and-just relationship between reasonable attorney’s fees and other expenses, it would

have omitted the Oxford comma. Although the use of the Oxford comma is not definitive, we agree

that its use here together with the inclusion of the word “other” and the absence of the other comma,

as in Scalia & Garner’s example above, indicate the Legislature intended to limit the justice-and-

equity modifier to other expenses.

Finally, Abraham points to a House Bill Analysis Report, on which the Cruz court relied in

interpreting the TCPA. Under the section describing the bill’s opponent’s position, the report noted

that a companion bill in the Senate included the phrase “as justice and equity may require” and that

this “language should be added to the House bill to ensure a court could award attorney fees that

were lower than what the attorney typically charges, if appropriate.” See Cruz, 452 S.W.3d at 526

(quoting House Research Org., Texas House of Representatives, Bill Analysis H.B. 2973 (May 2,

2011)). The court observed that it could “consider legislative history when construing a statue

whether or not the statute is ambiguous.” Id. at 526 n.39 (citing TEX . GOV ’T CODE § 311.023(3)).

We, however, do not resort to extrinsic aides, such as legislative history, to interpret a statute that

is clear and unambiguous, City of Round Rock v. Rodriguez, 399 S.W.3d 130, 137 (Tex. 2013),

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because the statute’s plain language “is the surest guide to the Legislature’s intent.” Prairie View

A & M Univ. v. Chatha, 381 S.W.3d 500, 507 (Tex. 2012).

Based on the statute’s language and punctuation, we conclude that the TCPA requires an

award of “reasonable attorney’s fees” to the successful movant. See TEX . CIV . PRAC. & REM . CODE

§ 27.009(a)(1). A “reasonable” attorney’s fee “is one that is not excessive or extreme, but rather

moderate or fair.” Garcia v. Gomez, 319 S.W.3d 638, 642 (Tex. 2010). That determination rests

within the court’s sound discretion, but that discretion, under the TCPA, does not also specifically

include considerations of justice and equity. The trial court accordingly erred by including these

considerations in its attorney’s fee award, and the appellate court likewise erred in recognizing them

as part of its standard of review.

III

Sullivan also argues that we should render judgment for “reasonable attorney’s fees” rather

than remand to the trial court because his attorney’s affidavit was the only evidence of such fees.

The parties apparently agreed attorney’s fees would be proved up under a lodestar approach. See El

Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 760-65 (Tex. 2012). In El Apple, we said that “[t]he starting

point for determining a lodestar fee award is the number of hours ‘reasonably expended on the

litigation.’” Id. at 762 (quoting Hensley v. Eckenhart, 461 U.S. 424, 437 (1983)). We further said

that the party applying for the award bears the burden of proof, which “includes, at a minimum,

documentation of the services performed, who performed them and at what hourly rate, when they

were performed, and how much time the work required.” Id. at 762, 764. The proof must be

sufficient to permit a court “to perform a meaningful review of their fee application.” Id. at 764.

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We have subsequently condemned “generalities about tasks performed” and specifically said that,

“without any evidence of the time spent on specific tasks,” the trial court does not have sufficient

information to meaningfully review the fee application. Long v. Griffin, 442 S.W.3d 253, 255–56

(Tex. 2014) (per curiam); accord City of Laredo v. Montano, 414 S.W.3d 731, 736-37 (Tex. 2013)

(per curiam).

Contrary to Sullivan’s argument, Abraham controverted Sullivan’s attorney’s affidavit,

challenging its specificity and reasonableness, among other things. But the trial court did not

consider the sufficiency of the parties’ competing affidavits or otherwise weigh the evidence because

the court applied the wrong standard; it awarded an equitable and just amount for attorney’s fees

rather than the required reasonable amount. We accordingly must remand the case to the trial court

for its determination of “reasonable attorney’s fees” under the appropriate standard.

***

The court of appeals’ judgment is reversed and the cause is remanded to the trial court for

further proceedings consistent with this opinion.

_______________________
John P. Devine
Justice

Opinion delivered: April 15, 2016

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