Akrie v. Grant ( 2015 )

//F.I L E
IN CLERICS OFFICE
11J1M1E COURT, STATE OF W/\SHINGTQN
DATE JlJl 2 3 2015
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CHIEF TICE. I Ronca~ 'R. Carpenter
Supre:flll Court Clerk
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
SCOTT AKRIE, an individual, and
VOLCAN GROUP, INC., d/b/a
NETLOGIX, a California corporation,
Petitioners,
NO. 89820-1
v.
JAMES GRANT and JANE DOE GRANT,
individually and the marital community
composed thereof, if any; KASSANDRA ENBANC
KENNAN and JOHN DOE KENNAN,
individually and the marital community
composed thereof, if any; DAVIS WRIGHT
TREMAINE, LLP, a Washington company;
SEATTLE DEPOSITION REPORTERS, Filed JUL 2 3 2015
LLC, a Washington company; T-MOBILE
USA, INC., a Delaware corporation,
Respondents.
PER CURIAM-Scott Akrie and Volcan Group Inc., d/b/a NetLogix, sued
James Grant, Kassandra Kennan, Davis Wright Tremaine LLP, Seattle Deposition
Reporters LLC, and T -Mobile USA Inc. Plaintiffs alleged that defendants twice
transcribed Jason Dillon's phone conversation without his permission and that in
Akrie, et al. v. Grant, et al., 89820-1
doing so they violated the privacy act, ch. 9. 73 RCW. Dillon is not a party in this
case. 1
Defendants filed a special motion to strike the claims under the Washington
Act Limiting Strategic Lawsuits Against Public Participation (anti-SLAPP statute),
RCW 4.24.525, and a motion to dismiss pursuant to CR 12(b)( 6). The superior court
granted both motions and dismissed the claims with prejudice. Pursuant to the anti-
SLAPP statute, RCW 4.24.525(6)(a), the superior court entered judgment ordering
plaintiffs to pay defendants a statutory penalty of $10,000.00, attorney fees of
$20,000.00, andlitigation costs of$137.45.
Plaintiffs appealed, and defendants crossappealed. Plaintiffs then withdrew
their appeal and so defendants were redesignated as appellants. Defendants argued
on appeal that under the anti-SLAPP statute, each defendant is entitled to $10,000
in SLAPP penalties, for a total of $50,000, rather than the total of $10,000 the
superior court awarded. The Court of Appeals agreed. It reversed the superior court
solely on the issue of statutory damages under the anti -SLAPP statute and remanded
with instructions to enter judgment for $50,000 instead of $10,000 in statutory
damages. Akrie v. Grant, 178 Wn. App. 506, 515, 315 P.3d 567 (2013).
We granted plaintiffs' petition for review and heard oral arguments on
September 30, 2014. We later stayed this case, as well as Dillon v. Seattle
Deposition Reporters, LLC (No. 89961-4), pending Davis v. Cox, a case involving
1
The same incidents resulted in another lawsuit, Dillon v. Seattle Deposition
Reporters, LLC (No. 89961-4), where Dillon is the plaintiff.
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Akrie, et al. v. Grant, et al., 89820-1
the constitutionality of the anti-SLAPP statute. No. 90233-0, 2015 WL 3413375(Wash. May 28, 2015). On May 28, 2015, the court decided Davis v. Cox, holding
the anti-SLAPP statute violates the right to trial by jury under article I, section 21 of
the Washington Constitution and is invalid. Accordingly, the stay of this case is
lifted.
In light of our decision in Davis, it is unnecessary to decide whether the proper
amount of statutory damages under the anti-SLAPP statute in this case was $10,000
or $50,000 because the statute is unconstitutional and thus no longer provides
grounds for any award of damages.
The question remains, however, whether plaintiffs, who did not appeal the
$10,000 statutory damages award, may benefit from our decision in Davis. The
general rule is that an "appellate court will grant a respondent affirmative relief by
modifying the decision which is the subject matter of the review only . . . if the
respondent also seeks review of the decision by the timely filing of a notice of appeal
or a notice of discretionary review." RAP 2.4(a)(1). Because plaintiffs withdrew
their appeal, the decision that is the subject matter of the review cannot be modified
under the general rule. The exception to the general rule is that an appellate court
may grant a respondent affirmative relief "if demanded by the necessities of the
case." RAP 2.4(a)(2).
We conclude that the necessities of this case justify granting plaintiffs the
affirmative relief of vacating the superior court's award of statutory penalties,
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Akrie, et al. v. Grant, et al., 89820-1
attorney fees, and costs under the anti -SLAPP statute. This case remained pending
at the time we invalidated the anti-SLAPP statute, and thus basic fairness demands
that we not sustain a penalty imposed pursuant to a statute we have held
unconstitutional.
The Court of Appeals is reversed. The case is remanded to the superior court
with instructions to vacate any award of statutory damages, attorney fees, and costs
under the anti-SLAPP statute. The superior court's judgment dismissing plaintiffs'
claim with prejudice pursuant to defendants' motion under CR 12(b)( 6) remains
undisturbed and is final.
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