Cordova v. Cline

• Citation: 489 P.3d 957
• Decision Date: 01 March 2021
• Docket Number: No. A-1-CA-37786,A-1-CA-37786
• Court: Court of Appeals of New Mexico
• Parties: Arsenio CORDOVA, Plaintiff-Appellee, v. Jill CLINE, Loretta DeLong, Jeanelle Livingston, Catherine Collins, Rose Martinez, Esther Winter, Elizabeth Trujillo, and Jane Does 1 through 10, Defendants-Appellants.

489 P.3d 957

Arsenio CORDOVA, Plaintiff-Appellee,

v.Jill CLINE, Loretta DeLong, Jeanelle Livingston, Catherine Collins, Rose Martinez, Esther Winter, Elizabeth Trujillo, and Jane Does 1 through 10, Defendants-Appellants.

No. A-1-CA-37786

Court of Appeals of New Mexico.

Filing Date: March 1, 2021

Alan Maestas Law Office, P.C., Alan H. Maestas, Kathryn J. Hardy, Taos, NM, for Appellee

Steven K. Sanders & Associates, L.L.C., Steven K. Sanders, Albuquerque, NM, for Appellants DeLong, Livingston, Collins, Martinez, Winter, and Trujillo

Armstrong & Armstrong P.C., Julia Lacy Armstrong, Taos, NM, for Appellant Cline

B. ZAMORA, Judge.

{1} Defendants¹ appeal the district court's orders denying, in part, their request for attorney fees. Specifically, Defendants challenge the district court's orders denying Defendants’ request for attorney fees incurred while this case was previously on appeal. We reverse the district court's orders denying attorney fees for Defendants’ appellate work and remand with instructions that it award attorney fees in accordance with this opinion. We otherwise affirm.

BACKGROUND

{2} At the crux of this case is the interpretation of the provision authorizing an award of attorney fees in NMSA 1978, Section 38-2-9.1 (2001), otherwise known as the Anti-SLAPP statute.² The Legislature adopted the Anti-SLAPP statute to ensure citizens have the right "to participate in quasi-judicial proceedings" before state governmental tribunals without fear of an "abuse of the legal process" or undue "financial burden[s] on those having to respond to and defend such [baseless] lawsuits." NMSA 1978, § 38-2-9.2 (2001) (stating the purpose of the Anti-SLAPP statute).

{3} In September 2009, Plaintiff filed a complaint alleging that when Defendants signed a petition and actively supported Plaintiff's recall from the Taos School Board, such acts constituted malicious abuse of process, civil conspiracy, and prima facie tort. In response, Defendants followed the procedural mechanisms set forth in the Anti-SLAPP statute and filed "special motion[s] to dismiss" alleging that Plaintiff's complaint infringed on Defendants’ First Amendment right to petition under the Noerr-Pennington doctrine.³ See § 38-2-9.1(A) (stating, "[a]ny action seeking money damages against a person for conduct or speech undertaken or made in connection with a public hearing ... before a tribunal ... is subject to a special motion to dismiss ... that shall be considered by the court on a priority or expedited basis" (emphasis added)). The district court granted Defendants’ special motions to dismiss finding Defendants’ support of Plaintiff's recall from the Taos School Board invoked "the substantive protection of the First Amendment and the procedural and remedial provisions" of the Anti-SLAPP statute. Under the Anti-SLAPP statute, Plaintiff appealed the district court's order granting the special motions to dismiss. See § 38-2-9.1(C) (stating that "[a]ny party shall have the right to an expedited appeal from a trial court order on the special motion [to dismiss]"). Our Supreme Court upheld the dismissal in a final appeal and remanded the case to the district court stating, "Pursuant to Section 38-2-9.1(B) [of the Anti-SLAPP statute], [the defendants] are statutorily entitled to an award of attorney fees." Cordova , 2017-NMSC-020, ¶¶ 2-3, 42, 396 P.3d 159.

{4} On remand, Defendants filed applications requesting attorney fees, including a request for fees incurred by Defendants on appeal. The district court granted attorney fees only for work completed while the case was pending in the district court, plus postjudgment interest "at the statutory rate of 8.75 [percent]." The district court denied Defendants’ request for attorney fees for the work done on appeal and denied Defendants’ request for an award of prejudgment interest with respect to the awarded attorney fees. Defendants appeal.

DISCUSSION

{5} Defendants argue: (1) they are entitled to attorney fees under the Anti-SLAPP statute for appellate work in defending their special motions to dismiss, (2) attorney fees are an element of damages, and (3) the district court erred in denying Defendants request for prejudgment interest and awarding postjudgment interest at the statutory rate of 8.75 percent, rather than Defendants’ requested 15 percent rate. We address each argument in turn.

I. Attorney Fees Apply to Appellate Work, Pursuant to the Anti-SLAPP Statute

{6} Defendants argue that Section 38-2-9.1(B), which authorizes an award of attorney fees under the Anti-SLAPP statute, applies to fees incurred while their case was on appeal. In contrast, Plaintiff contends that applying the rules of statutory construction "it[’s] clear that the [L]egislature meant to award attorney[ ] fees for the underlying motion to dismiss, and not the interlocutory appeal, or any other appeal, taken pursuant to, or in response to, said motion to dismiss."⁴ We agree with Defendants.

{7} The "[i]nterpretation of a statute is an issue of law which we review de novo." Badilla v. Wal-Mart Stores E., Inc. , 2017-NMCA-021, ¶ 8, 389 P. 3d 1050 (internal quotation marks and citation omitted). In interpreting statutes, our primary goal is to discern the intent of the Legislature. Valenzuela v. Snyder , 2014-NMCA-061, ¶ 16, 326 P.3d 1120. If the statute is clear or unambiguous, we interpret it according to its plain language and refrain from further statutory interpretation. Starko, Inc. v. N.M. Human Servs. Dep't , 2014-NMSC-033, ¶ 46, 333 P.3d 947 (Vigil, C.J., dissenting); see Whitely v. N.M. State Pers. Bd. , 1993-NMSC-019, ¶ 5, 115 N.M. 308, 850 P.2d 1011 (recognizing that "the plain language of the statute [is] the primary indicator of legislative intent"). However, if "adherence to the literal use of the words would lead to injustice, absurdity or contradiction, we will reject the plain meaning in favor of an interpretation driven by the statute's obvious spirit or reason." State v. Trujillo , 2009-NMSC-012, ¶ 21, 146 N.M. 14, 206 P.3d 125 (internal quotation marks and citations omitted).

{8} We begin by interpreting Section 38-2-9.1(B) of the Anti-SLAPP statute in accordance with its plain language to determine whether the district court erred in denying Defendants’ request for the attorney fees they incurred while this case was on appeal. The Anti-SLAPP statute provides, "[a]ny action seeking money damages against a person for conduct or speech undertaken or made in connection with a public hearing ... is subject to a special motion to dismiss[.]" Section 38-2-9.1(A). The plain language of Section 38-2-9.1(B) states, "if a court grants a motion to dismiss ... filed within ninety days of the filing of the moving party's answer, the court shall award reasonable attorney fees and costs incurred by the moving party in defending the action ." (Emphasis added.) First, we note the word "shall" is mandatory, and requires the district court to award attorney fees if the defendant is successful in defending the action. See Marbob Energy Corp. v. N.M. Oil Conservation Comm'n , 2009-NMSC-013, ¶ 22, 146 N.M. 24, 206 P.3d 135 ("It is widely accepted that when construing statutes, ‘shall’ indicates that the provision is mandatory, and we must assume that the Legislature intended the provision to be mandatory absent [a] clear indication to the contrary."). Next, we interpret the phrase "defending the action" in Section 38-2-9.1(B). An "action" is "any judicial proceeding, which, if conducted to a determination, will result in a judgment or decree." Action , Black's Law Dictionary (11th ed. 2019) (internal quotation marks and citation omitted). Importantly, our case law also provides that "[a]n action is to be regarded as pending from the time of its commencement until its final termination." Baldonado v. Navajo Freight Lines, Inc. , 1977-NMCA-008, ¶ 10, 90 N.M. 284, 562 P.2d 1138 (internal quotation marks and citation omitted), rev'd on other grounds , 1977-NMSC-025, ¶ 14, 90 N.M. 264, 562 P.2d 497. We construe the words "defending the action" under Section 38-2-9.1(B) of the Anti-SLAPP statute as encompassing all work related to defense of any of the various special motions permitted by the statute. See § 38-2-9-1(A) (listing the special motions as a "motion to dismiss, motion for judgment on the pleadings, or [a] motion for summary judgment"). For purposes of the Anti-SLAPP statute, we do not see any distinction between defending the action at the district court and defending the same action on appeal. The "action" in Section 38-2-9.1(B), as indicated by the plain language, includes a special motion to dismiss, like the motions filed in this case, which a party can defend throughout the appellate process via an expedited appeal. See Whitely , 1993-NMSC-019, ¶ 5, 115 N.M. 308, 850 P.2d 1011 (reaffirming that the plain language of a statute is the primary indicator of legislative intent).

{9} Additionally, Plaintiff contends that the Legislature "excluded the award of attorney[ ] fees" on appeal because attorney fees are not mentioned in Section 38-2-9.1(C), which provides parties with a right to an expedited appeal. We decline to read such an express limitation. The Legislature "knows how to include language in a statute if it so desires[,]" Chatterjee v. King , 2011-NMCA-012, ¶ 15, 149 N.M. 625, 253 P.3d 915, and could have incorporated limiting language in Section 38-2-9.1(A)-(C), had it chosen to. See Giddings v. SRT-Mountain Vista, LLC , 2019-NMCA-025, ¶ 21, 458 P.3d 596 (acknowledging that if the Legislature intended to limit the language present in a statute it would have included limiting language to that effect). Our decision aligns with other cases where our Supreme Court interpreted provisions in statutes as including attorney fees for appellate work, despite the absence of explicit statutory language providing for the award of such fees. See, e.g. , Superior Concrete Pumping, Inc. v. David Montoya Contsr., Inc. , 1989-NMSC-023, ...