Dallas Court of Appeals, No. 05-14-00631-CV (June 23, 2015)
Justices Fillmore (Opinion), Myers, and Evans
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.
TEX. CIV. PRAC. & REM. CODE § 27.009(a) (emphasis added). Acting pursuant to the mandate from the first appeal in this case, the trial court granted the defendants’ motion to dismiss under the TCPA. But, seizing on the phrase “as justice and equity may require,” it concluded an award of attorney’s fees to the prevailing defendant was discretionary, and declined to award any fees at all. The Dallas Court of Appeals reversed, citing its prior decision in Cruz v. Van Sickle holding an award of fees to be mandatory under the TCPA. The phrase “as justice and equity may require” does not change that. But, the court said, that phrase does constitute “an additional limitation on the trial court’s award of attorney’s fees and other expenses ….” The phrase “was added by a senate amendment … to ensure a court could award attorney’s fees that were less than what the attorney typically charges, if appropriate.” So, “the amount of an award … is left to the sound discretion of the trial court.” The appeals court therefore remanded for the trial court to enter an award of some amount of attorney’s fees “as justice and equity may require”—more than $0, but otherwise within the trial court’s discretion.
The appeals court relied on legislative history to conclude that the modifier, “as justice and equity may require,” applied to the mandatory award of “reasonable attorney’s fees.” But an adherent to Scalia and Garner’s Canon 21—“Punctuation is a permissible indicator of meaning”—might say the statute as written doesn’t provide for that bit of discretion. Because there is no comma after “other expenses incurred in defending against the legal action,” one might argue that “as justice and equity may require” modifies and applies only to this last category (“other expenses,” i.e., expenses not recoverable as “costs” or “fees”) and that the trial court is bound to award “court costs [and] reasonable attorney’s fees” without reference to the discretionary “justice and equity” qualifier.