Cordova v. Cline

                                                                         Office of the
                                                                             Director    New Mexico
                                                                                         Compilation
                                                                          2021.07.12     Commission
                                                                     '00'06- 10:05:58
          IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: March 1, 2021

No. A-1-CA-37786

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.

APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY
Abigail Aragon, District Judge

Released for Publication July 20, 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

                                          OPINION
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



1Jill Cline, Loretta Delong, Jeanelle Livingston, Catherine Collins, Rose Martinez, Esther Winter,
Elizabeth Trujillo, and Jane Does 1-10.
2The Anti-SLAPP statute is New Mexico’s law “prohibiting strategic litigation against public participation.”
Cordova v. Cline, 

, 

.
3“The Noerr-Pennington doctrine is a body of federal law that provides First Amendment protections for
citizens who petition the government” and “[u]nder the Noerr-Pennington doctrine, those who engage in
conduct aimed at influencing the government, including litigation, are shielded from retaliation provided
their conduct is not a sham.” Cordova, 

.
Anti-SLAPP statute], [the defendants] are statutorily entitled to an award of attorney
fees.” Cordova, 

.

{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., 

, ¶ 8, 

 (internal
quotation marks and citation omitted). In interpreting statutes, our primary goal is to
discern the intent of the Legislature. Valenzuela v. Snyder, 

, 

. 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, 

, 

 (Vigil, C.J., dissenting); see Whitely
v. N.M. State Pers. Bd., 

, ¶ 5, 

, 

(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,


4Plaintiff cites to Paz v. Tijerina, 

, 

, 

, arguing that
because our Supreme Court “did not mandate or award attorney[] fees for any of the appeals,”
Defendants are not entitled to reasonable attorney fees for their work on appeal. However, in Paz this
Court declined to award attorney fees because the plaintiff did not direct us to any statute specifically
authorizing the award. 

 Here, the opposite is true. Section 38-2-9.1(B) explicitly authorizes an award of
attorney fees. Hence, Plaintiff’s argument is unpersuasive.
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, 

,

, 

 (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, 

, 

, 

 (“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., 

, ¶ 10, 

, 

 (internal quotation marks and citation omitted), rev’d on other
grounds, 

, ¶ 14, 

, 

. 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 (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, 

, 

, 

, 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, 

, ¶ 21, 

 (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., 

, ¶¶ 15-16, 

, 

(awarding attorney fees for appellate work under NMSA 1978, Section 36-2-39 (1975,
Repl. Pamp.1984), recompiled as NMSA 1978, Section 39-2-2.1 (1975)); Hale v. Basin
Motor Co., 

, ¶ 27, 

, 

 (awarding attorney
fees for appellate work under NMSA 1978, Section 57-12-10(C) (1987, amended 2005)
of the Unfair Trade Practices Act, despite the Act not explicitly mentioning attorney fees
for appellate work). We hold that the plain language of the Anti-SLAPP statute requires
attorney fees to be awarded to a defendant who prevails on any of the special motions
provided by the statute, and further hold that such an award applies to all stages of
litigation reasonably related to the defense of the action, whether at the trial level, or on
appeal.

{10} We briefly address the district court’s basis for denying Defendants’ request for
an award of the attorney fees incurred while this case was previously on appeal. The
district court cited to Rule 12-403 NMRA and reasoned that “[a]ssessment of costs on
appeal is for the appellate court, and not for the trial court.” Rule 12-403(A) provides
“[u]nless otherwise provided by law, the appellate court may, in its discretion, award
costs to the prevailing party on request.” (Emphasis added.) In contrast to other actions
brought pursuant to other statutory schemes, wherein an award of attorney fees is not
“provided by law,” 

 or where an award of attorney fees is left to the discretion of the
appellate court, the specific use of the word “shall” in Section 38-2-9.1(B) of the Anti-SLAPP statute is a clear indication the Legislature intended the award of attorney fees,
including fees incurred on appeal, to be mandatory. Accordingly, the district court here
had the authority to award appellate attorney fees incurred as part of a party’s “defense
of the action” in Section 38-2-9.1(B). See Measday v. Sweazea, 

,
¶¶ 35-36, 

, 

 (remanding to the district court for a determination
of attorney fees including fees incurred on appeal).

II.    Attorney Fees Are Sanctions Under the Anti-SLAPP Statute

{11} Defendants contend that under the Anti-SLAPP statute attorney fees are
awarded as “an element of damages.” In contrast, Plaintiff argues attorney fees are
awarded as sanctions and “not as an element of damages.” As we explain below, we
conclude attorney fees awarded under the Anti-SLAPP statute are sanctions and not a
compensatory mechanism for damages.

{12} “It is well-settled that, absent statutory authority or rule of court, attorney fees are
not recoverable as an item of damages.” Lenz v. Chalamidas, 

, ¶ 19,

, 

. With this principle in mind, we turn again to the language of
the Anti-SLAPP statute to determine if the Legislature intended the provision authorizing
an award of attorney fees to constitute an award of damages or a sanction. See
Valenzuela, 

 (deriving the intent of the Legislature is the most
important goal in statutory interpretation). Section 38-2-9.1(B) states, “If the rights
afforded by this section are raised as an affirmative defense and if [the] court grants a
motion to dismiss . . . the court shall award reasonable attorney fees and costs incurred
by the moving party in defending the action.” In determining “legislative intent we may
look to the title, and ordinarily it may be considered as a part of the act if necessary to
its construction.” State v. Richardson, 

, ¶ 21, 

, 

. The title of the Anti-SLAPP statute states, “Special motion to dismiss unwarranted
or specious lawsuits; procedures; sanctions; severability.” Section 38-2-9.1 (emphasis
added).5 The issue of whether an award of attorney fees constitutes a sanction under
New Mexico law has already been addressed by the United States Court of Appeals for
the Tenth Circuit, and we find its reasoning persuasive. In Los Lobos Renewable
Power, LLC v. AmeriCulture, Inc., the court reasoned, “as [Section] 38-2-9.1’s title
plainly suggests, Subsection B’s first sentence provides for the imposition of fees and
costs as a sanction primarily designed not to compensate for legal services but to
vindicate First Amendment rights threatened by a kind of unwarranted or specious
litigation.” 

 (10th Cir. 2018) (internal quotation marks omitted). We
agree.

{13} Our conclusion is consistent with the fact that the Anti-SLAPP statute is a
procedural mechanism and does not create a cause of action or claim entitling a party
to damages, which is a further indication that an award of attorney fees is a sanction.
The Anti-SLAPP statute does not reference any potential claim; rather subsequent
cases interpreting the statute universally recognize that it is a procedural mechanism.
See, e.g., Los Lobos Renewable Power, 

 (“The statute’s purpose is the
prompt termination of certain lawsuits the New Mexico Legislature deemed to be both
unduly burdensome and a threat to First Amendment rights.”); Cordova, 2017-NMSC-
020, ¶¶ 1, 19 (recognizing a defendant is “entitled to the procedural protections” of the
Anti-SLAPP statute and stating that the statute creates “expedited procedures for
dismissing” SLAPP suits). To the contrary, the Anti-SLAPP statute does not limit the
exercise of a party’s “right or remedy . . . granted pursuant to another constitutional,
statutory, common law or administrative provision, including civil actions for defamation
or malicious abuse of process.” Section 38-2-9.1(E). Consequentially, because the Anti-SLAPP statute does not create a cause of action, we cannot reasonably read the
provision authorizing an award of attorney fees in Section 38-2-9.1(B) as entitling a
party to damages. Thus, we hold that the Legislature intended the provision authorizing
an award of attorney fees in Section 38-2-9.1(B) of the Anti-SLAPP statute to be a
sanction, and not a mechanism for compensating or awarding damages.




5In further support of our conclusion that the Legislature intended attorney fees awarded, pursuant to the
Anti-SLAPP statute to be a sanction, we highlight that the Legislature removed the word “damages” and
in its place added “sanctions” in Section 38-2-9.1. See H.B. 241, 45th Leg., 1st Sess. (N.M. 2001),
available at https://www.nmlegis.gov/Sessions/01%20Regular/bills/house/HB0241.pdf (the Anti-SLAPP
statute was titled “Immunity—Special Motion to Dismiss Unwarranted or Specious Lawsuits—
Procedures—Damages—Severability” (emphasis added)).
III.   Interest on Attorney Fees

{14} Lastly, Defendants argue that Plaintiff’s original SLAPP suit constituted tortious
conduct against Defendants entitling them to: (1) an award of prejudgment interest on
their request for attorney fees, and (2) a 15 percent rate on postjudgment interest as
opposed to an 8.75 percent rate.

A.     Prejudgment Interest

{15} Defendants contend they are entitled to an award of prejudgment interest on their
request for attorney fees. The district court denied Defendants request for prejudgment
interest stating, “[Section] 38-2-9.1(B) allows [for attorney] fees and costs for the
prevailing party on a motion to dismiss” and “it does not include an award of
prejudgment interest.” Because Defendants’ couched their prejudgment interest
argument as a purely legal challenge—asserting that attorney fees are damages—we
review it de novo. See State ex rel. Solsbury Hill, LLC v. Liberty Mut. Ins. Co., 2012-
NMCA-032, ¶ 31, 

 (reviewing a party’s prejudgment interest argument under
a de novo standard of review when it involves a purely legal question).

{16} NMSA 1978, Section 56-8-4(B)(1), (2) (2004) provides the district court with
discretion to award prejudgment interest in certain circumstances. Section 56-8-4(B)
provides that, “the court in its discretion may allow interest of up to ten percent from the
date the complaint is served upon the defendant after considering, among other things:
(1) if the plaintiff was the cause of unreasonable delay in the adjudication of the
plaintiff’s claims; and (2) if the defendant had previously made a reasonable and timely
offer of settlement to the plaintiff.” Section 56-8-4 applies to all actions, including tort
actions in which damages are not reasonably ascertainable before trial. Southard v.
Fox, 

, ¶ 7, 

, 

(emphasis added).

{17} As we understand Defendants’ argument, they allege that because their award of
attorney fees under the Anti-SLAPP statute are damages, they are entitled to
prejudgment interest. We have already rejected Defendants’ argument that attorney
fees constitute damages in this context. The Anti-SLAPP statute does not provide a
statutory basis for Defendants to file a cause of action or assert a claim or counterclaim
against Plaintiff and thus, Plaintiff is not liable for damages to Defendants.6 To the
contrary, “the [Anti-SLAPP] statute is procedural in all its aspects.” Los Lobos
Renewable Power, 

. Because the Anti-SLAPP statute does not
establish an independent claim that Defendants can pursue, we cannot reasonably
interpret Section 38-2-9.1(B) as entitling them to prejudgment interest on their request
for attorney fees. Accordingly, the district court did not err in denying Defendants’
request for prejudgment interest.


6Although we conclude that attorney fees are sanctions under the Anti-SLAPP statute, as we note above,
nothing in the Anti-SLAPP statute prohibits or limits a party’s right to pursue an outside
claim/counterclaim seeking damages. See Section 38-2-9.1(E). As an example, in this case, Defendant
Cline filed a counterclaim for malicious abuse of process, which she later voluntarily dismissed.
B.     Postjudgment Interest

{18} Relying on Section 56-8-4(A), Defendants’ argue the district court erred in only
awarding postjudgment interest at an 8.75 percent rate claiming that their requested
attorney fees were damages. We are not persuaded.

{19} “We review the court’s application of Section 56-8-4(A) to the facts de novo.” Bird
v. State Farm. Mut. Auto. Ins. Co., 

, 

, 

.
Section 56-8-4(A)(2) provides, “Interest shall be allowed on judgments and decrees for
the payment of money from entry and shall be calculated at the rate of eight and threefourths percent per year, unless . . . the judgment is based on tortious conduct, bad faith
or intentional or willful acts, in which case interest shall be computed at the rate of
fifteen percent.” Defendants fail to direct our attention to evidence or findings in the
record supporting their contention that the filing of Plaintiff’s complaint constituted
conduct that was tortious, intentional, or in bad faith as required by Section 56-8-
4(A)(2). Cf Pub. Serv. Co. of N.M. v. Diamond D Constr. Co., 

,

, 

 (“[I]f a plaintiff wants to [e]nsure that a judgment is assessed
the higher 15 percent interest rate in a case not based in tort or bad faith, the plaintiff
must specifically request that the fact[-]finder make a finding of intention or willfulness.”).
Thus, we decline to address Defendants’ postjudgment interest argument further. See
Muse v. Muse, 

, 

, 

 (“We will not search
the record for facts, arguments, and rulings in order to support generalized
arguments.”); see also Santa Fe Expl. Co. v. Oil Conservation Comm’n, 1992-NMSC-
044, ¶ 11, 

, 

 (stating appellate courts have no duty to
entertain uncited and unsupported arguments).

CONCLUSION

{20} We reverse the district court’s denial of Defendants’ request for an award of
reasonable attorney fees to fees incurred related to the appeal. We remand for the
district court to award reasonable attorney fees to Defendants in accordance with our
holding, but we otherwise affirm.

{21}   IT IS SO ORDERED.

BRIANA H. ZAMORA, Judge

WE CONCUR:

J. MILES HANISEE, Chief Judge

KRISTINA BOGARDUS, Judge