Ferebee v. Hume, 010621 NMCA, A-1-CA-37202

Docket NºA-1-CA-37202
Opinion JudgeJULIE J. VARGAS, JUDGE
Party NameCYNTHIA FEREBEE, Plaintiff-Appellant, v. ROBERT T. HUME, RENATE C. HUME, and HUME & ASSOCIATES, LLC, Defendants-Appellees.
AttorneyBardacke Allison LLP Benjamin W. Allison Breanna Contreras Santa Fe, NM for Appellant Keleher & McLeod, P.A. Thomas C. Bird Gary J. Van Luchene Albuquerque, NM for Appellees
Judge PanelWE CONCUR: MEGAN P. DUFFY, Judge, SHAMMARA H. HENDERSON, Judge
Case DateJanuary 06, 2021
CourtCourt of Appeals of New Mexico

CYNTHIA FEREBEE, Plaintiff-Appellant,

v.

ROBERT T. HUME, RENATE C. HUME, and HUME & ASSOCIATES, LLC, Defendants-Appellees.

No. A-1-CA-37202

Court of Appeals of New Mexico

January 6, 2021

APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY Sarah C. Backus, District Judge

Bardacke Allison LLP Benjamin W. Allison Breanna Contreras Santa Fe, NM for Appellant

Keleher & McLeod, P.A. Thomas C. Bird Gary J. Van Luchene Albuquerque, NM for Appellees

OPINION

JULIE J. VARGAS, JUDGE

{¶1} This case requires that we interpret the scope of our jurisdiction granted by New Mexico's statute prohibiting strategic litigation against public participation (Anti-SLAPP statute), NMSA 1978, § 38-2-9.1 (2001), as well as the applicability of the statute's protections to speech or conduct made in connection with federal proceedings. Plaintiff Cynthia Ferebee appeals the district court's denial of her motion to dismiss counterclaims filed by Defendants Robert T. Hume (Defendant Robert), Renate C. Hume, and Hume & Associates, LLC (collectively, Defendants) under the Anti-SLAPP statute, as well as her request for Rule 1-011 NMRA sanctions against Defendants. In response, Defendants challenge this Court's jurisdiction to hear Plaintiff's appeal. We hold that we have jurisdiction over Plaintiff's appeal from the district court's order denying her motion to dismiss and that the district court did not err in denying the motion because the Anti-SLAPP statute does not protect participation in federal proceedings. Further, we decline to review the portion of the district court's order denying Plaintiff's request for sanctions. Accordingly, we affirm.

BACKGROUND

{¶2} Plaintiff's appeal stems from an action filed by Plaintiff in district court against Defendants for malicious abuse of process and defamation, in which she alleged in relevant part, that Defendants filed meritless claims against her in retaliation for her submission of sworn declarations to the United States Department of Commerce. Plaintiff alleged that while she was employed at Hume & Associates, LLC, a firm that represents New Mexico garlic farmers and Chinese companies, she became concerned that Defendant Robert was not representing the best interests of his New Mexico clients. Plaintiff alleged that Defendant Robert failed to inform his New Mexico clients that their participation in a Department of Commerce administrative review of Harmoni International Spice, Inc. (Harmoni)-his Chinese clients' biggest competitor-was intended to help his Chinese clients in a trade war with Harmoni. Plaintiff further explained that she discovered Defendant Robert had misrepresented to the Department of Commerce that he was working pro bono for his New Mexico clients.

{¶3} After Plaintiff submitted declarations to the Department of Commerce, Defendants filed three claims against her in magistrate court. In these claims, Defendants alleged Plaintiff (1) improperly used the office credit card without authorization; (2) forged Defendant Robert's signature on checks; and (3) failed to repay a loan made by Defendant Robert to Plaintiff. As a result of Defendants' magistrate court claims, Plaintiff filed her malicious abuse of process and defamation claims in district court. Defendants dismissed their magistrate court claims and refiled them as counterclaims in response to Plaintiff's complaint. Three of Defendants' four counterclaims (the financial counterclaims) were identical to the magistrate court claims. The fourth counterclaim (the duty-of-loyalty counterclaim) newly alleged that Plaintiff had breached her duty of loyalty to her employer by using "her employer's confidential information and communications for purposes of her own adverse to the employer or for the purposes of a third-party adverse to the employer."

{¶4} Plaintiff filed a motion to dismiss (the special motion) these counterclaims under the Anti-SLAPP statute, arguing they were made in retaliation for her declarations to the Department of Commerce. Additionally, Plaintiff requested that the district court dismiss the counterclaims under Rule 1-011 as a sanction for the improper purpose and untrue statements underlying Defendants' claims.

{¶5} The district court denied Plaintiff's special motion, concluding that the Anti-SLAPP statute was inapplicable because her "alleged speech was not directed to a state or local government but to a federal agency," and further concluding that "[b]ecause the counterclaims seek money damages relating to alleged financial improprieties while Plaintiff . . . was employed by Defendants[, ] . . . the connection between the actions of the parties is tenuous." The district court also denied Plaintiff's motion for sanctions. Plaintiff now appeals the district court's decisions.

DISCUSSION

{¶6} The parties raise three issues on appeal: (1) whether this Court has jurisdiction to review Plaintiff's appeal of the district court's denial of her special motion, (2) whether the district court erred in denying Plaintiff's special motion, and (3) whether the district court erred in denying Plaintiff's motion for sanctions. We address each in turn.

I. Appellate Jurisdiction Over the District Court's Denial of Plaintiff's Special Motion

{¶7} Defendants challenge this Court's jurisdiction to hear the present appeal, arguing Plaintiff's appeal "does not proceed from a final order" and "the Anti-SLAPP provision authorizing immediate appeal does not apply[.]" Defendant contends that because the district court concluded that Plaintiff's claims do not fall within the purview of the Anti-SLAPP statutes and Plaintiff's appeal is from a non-final order, she is not entitled to avail herself of the expedited appeal right provided by the statute. See § 38-2-9.1(C) (providing parties with a right to expedited appeal). "The question of jurisdiction is a controlling consideration that must be resolved before going further[.]" State ex rel Bevacqua-Young v. Steele, 2017-NMCA-081, ¶ 6, 406 P.3d 547 (internal quotation marks and citation omitted). "We review jurisdictional questions de novo." Id.

{¶8} As Plaintiff points out, our Supreme Court interpreted the expedited appeal right provision as "allow[ing] any party to bring an interlocutory appeal from a trial court order on the special motion(s) brought pursuant to [the] Anti-SLAPP statute." Cordova v. Cline, 2017-NMSC-020, ¶ 12, 396 P.3d 159. And, while Cordova made clear that a final order was not necessary to invoke a party's right to appeal under the Anti-SLAPP statute, it did not specifically address a party's right to appeal from a ruling by the district court that the Anti-SLAPP statute did not protect the conduct or speech at issue before the district court.

{¶9} Initially, we note that "[t]he appellate jurisdiction of both [the Supreme Court] and the [C]ourt of [A]ppeals is within the legislative power to prescribe." Lovelace Med. Ctr. v. Mendez, 1991-NMSC-002, ¶ 11, 111 N.M. 336, 805 P.2d 603; see Cordova, 2017-NMSC-020, ¶ 15 (recognizing that "[t]he Legislature has authority to establish jurisdiction and create a right of appeal"). Defendants' challenge to our jurisdiction requires that we interpret the Anti-SLAPP statute to determine whether the Legislature intended to grant a right to an expedited appeal of an order of the district court concluding a party is not entitled to the statute's protection. Statutory interpretation is an issue of law we review de novo. See Badilla v. Wal-Mart Stores E. Inc., 2015-NMSC-029, ¶ 12, 357 P.3d 936 ("Interpretation of a statute is an issue of law which we review de novo." (omissions, alteration, internal quotation marks, and citation omitted)).

{¶10} The relevant provisions of the Anti-SLAPP statute set out a party's rights to the expedited review of specific claims brought against that party for his or her conduct or speech in certain government proceedings, including the expedited right to appeal: A. Any action seeking money damages against a person for conduct or speech undertaken or made in connection with a public hearing or public meeting in a quasi-judicial proceeding before a tribunal or decision-making body of any political subdivision of the state is subject to a special motion to dismiss, motion for judgment on the pleadings, or motion for summary judgment that shall be considered by the court on a priority or expedited basis to ensure the early consideration of the issues raised by the motion and to prevent the unnecessary expense of litigation.

B. If the rights afforded by this section are raised as an affirmative defense and if a court grants a motion to dismiss, a motion for judgment on the pleadings or a motion for summary judgment 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. If the court finds that a special motion to dismiss or motion for summary judgment is frivolous or solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney fees to the party prevailing on the motion.

C. Any party shall have the right to an expedited appeal from a trial court order on the special motions described in Subsection B of this section or from a trial court's failure to rule on the motion on an expedited basis.

Section 38-2-9.1(A)-(C) (emphasis added).

{¶11} When interpreting statutes, we must determine and give effect to the Legislature's intent, which requires that "we look first to the plain language of the statute, giving the words their ordinary meaning, unless the Legislature indicates a different one was intended." Chatterjee v. King, 2012-NMSC-019, ¶ 11, 280 P.3d 283 (alteration, internal quotation marks, and citation...

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