Sullivan v. Abraham

Justice Devine (Opinion)

Fellow grammar and punctuation nerds, rejoice! To our delight, the Supreme Court of Texas has taken us on a thrill ride through the “series-qualifier canon,” the “last-antecedent canon,” and the Oxford or serial comma rule to determine the substantive rights of poor Sullivan and Abraham.

Abraham sued Sullivan for defamation. Sullivan responded with a successful motion to dismiss under the Texas Citizens Participation Act. So, § 27.009(a)(1) of the TCPA mandated that the trial court award to Sullivan his “court costs, reasonable attorney’s fees, and other expenses incurred in defending against the legal action as justice and equity may require ….” Although Sullivan submitted evidence of $67,000 in fees and $4,300 in costs and expenses, the trial court awarded only $6,500 in fees and $1,500 in costs, saying “justice and equity” required those lower amounts. Sullivan appealed, arguing the “justice and equity” qualifier applied only to “other expenses” and that the court had no discretion to reduce the mandatory award of costs and reasonable attorney’s fees based on “justice and equity.”

Invoking the “series-qualifier canon,” Abraham argued that “justice and equity” modified all the preceding items in the statute—costs, fees, and “other expenses.” Relying on the “last-antecedent canon,” Sullivan contended “justice and equity” could apply only to the last item preceding it, “other expenses.” With these two canons basically at a standoff, the Court took refuge in punctuation, including the Oxford comma rule, to side with Sullivan. Had the legislature inserted a comma after “expenses”—i.e., “court costs, reasonable attorney’s fees, and other expenses, incurred in defending against the legal action as justice and equity may require”—the Court reasoned, it would have been clear the “justice and equity” qualifier was meant to apply to all three preceding items. The absence of that comma, however, denoted the legislature’s intent that “justice and equity” modify only the item immediately preceding it, “other expenses.” Because the trial court had applied an incorrect discretionary standard, its decision was reversed and the matter remanded so it could consider the reasonableness of Sullivan’s fees.