Stubbs v. Strickland

129 Nev., Advance Opinion 15
IN THE SUPREME COURT OF THE STATE OF NEVADA
STEPHEN STUBBS, AN INDIVIDUAL,
Appellant,
No. 58751
FILE
vs.
TRACY STRICKLAND, AN
MAR 1 4 201
INDIVIDUAL,
Respondent.
TRACY STRICKLAND, AN
INDIVIDUAL,
Appellant,
vs.
STEPHEN STUBBS, AN INDIVIDUAL,
Respondent.
Consolidated appeals from a district court order dismissing an
action for anti-SLAPP relief and from a post-judgment district court order
denying attorney fees and costs. Eighth Judicial District Court, Clark
County; Michelle Leavitt, Judge.
Affirmed.
Hutchison & Steffen, LLC, and Michael K. Wall, Las Vegas,
for Stephen Stubbs.
L.G. Strickland, Boulder City,
for Tracy Strickland.
BEFORE THE COURT EN BANC.
OPINION
By the Court, GIBBONS, J.:
In this appeal, we consider whether a defendant can file an
anti-SLAPP (Strategic Lawsuit Against Public Participation) suit after the
plaintiff voluntarily dismisses the initial lawsuit. We conclude that if the
alZeL
plaintiff voluntarily dismisses the action before the defendant files either
an initial responsive pleading or a special motion to dismiss pursuant to
NRS 41.670, the defendant cannot file an anti-SLAPP suit against the
plaintiff based on that action.
FACTS AND PROCEDURAL HISTORY
In December 2010, Stephen Stubbs gave a speech during the
public comment portion of a Boulder City Council meeting. In the speech,
Mr. Stubbs accused Boulder City Councilwoman Linda Strickland and her
husband, Tracy Strickland, of not following Boulder City Municipal Code
requirements for the licensure of their law firm. Afterwards, Mr. Stubbs
posted the speech on his website.
In January 2011, Mr. Strickland, represented by
Councilwoman Strickland, filed a complaint against Mr. Stubbs for libel
per se and negligent infliction of emotional distress based on the Internet
posting. However, Mr. Strickland voluntarily dismissed the suit under
NRCP 41(a) nine days after Mr. Stubbs received the complaint and before
Mr. Stubbs filed an answer or any pleading in the case. Following the
voluntary dismissal, Mr. Stubbs filed a separate complaint against Mr.
Strickland, seeking damages and attorney fees pursuant to Nevada's anti-
SLAPP statute. In response, Mr. Strickland filed an NRCP 12(b)(5)
motion to dismiss the complaint. The district court granted Mr.
Strickland's motion, finding that Mr. Stubbs had no standing to file his
complaint under the anti-SLAPP statute once Mr. Strickland voluntarily
dismissed his action. After prevailing on his motion to dismiss, Mr.
Strickland moved for attorney fees and sanctions. The district court
denied his motion without making any specific findings.
Mr. Stubbs now appeals the district court's order dismissing
his anti-SLAPP action, arguing that such an action is permitted by NRS
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41.620, regardless of whether Mr. Strickland voluntarily dismissed the
original suit before Mr. Stubbs could file an answer. We disagree and
therefore affirm the district court's order dismissing Mr. Stubbs's action.
Mr. Strickland appeals the district court's order denying his
motion for attorney fees and sanctions, arguing that Mr. Stubbs filed his
complaint without reasonable grounds, the complaint was not warranted
under existing law, and Mr. Stubbs failed to argue for an extension of the
law. We disagree and therefore affirm the district court's order denying
Mr. Strickland's request for attorney fees and sanctions.
DISCUSSION
The district court properly dismissed Mr. Stubbs's complaint because Mr.
Strickland voluntarily dismissed the original suit before Mr. Stubbs filed
an answer
Mr. Stubbs argues that NRS 41.670(2) allows a defendant to
bring a separate action for damages, attorney fees, and costs resulting
from a SLAPP suit, even if the plaintiff filing the alleged SLAPP suit
voluntarily dismisses the action before a defendant appears in the lawsuit
or has the opportunity to file the special motion to dismiss. In response,
Mr. Strickland argues that the statute allows a party to file a separate
action for damages and attorney fees only if the district court grants a
special motion to dismiss pursuant to NRS 41.660.
An order granting an NRCP 12(b)(5) motion to dismiss "is
subject to a rigorous standard of review on appeal." Buzz Stew, LLC v.
City of N. Las Vegas, 124 Nev. 224, 227-28, 181 P.3d 670, 672 (2008)
(quotations omitted). This court presumes all factual allegations in the
complaint are true and draws all inferences in favor of the plaintiff. Id. at
228, 181 P.3d at 672. Dismissal is appropriate when "it appears beyond a
doubt that [the plaintiff] could prove no set of facts, which, if true, would
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entitle [the plaintiff] to relief." Id. We review all legal conclusions de
novo. Id.A SLAPP suit is a meritless lawsuit that a party initiates
primarily to chill a defendant's exercise of his or her First Amendment
free speech rights. John v. Douglas County School District, 125 Nev. 746,
752, 219 P.3d 1276, 1280 (2009). When a plaintiff files a SLAPP suit
against a defendant, Nevada's anti-SLAPP statute allows the defendant to
file a special motion to dismiss in response to the action. NRS 41.660(1).
NRS 41.670(2) further provides, "If the court grants a special motion to
dismiss filed pursuant to NRS 41.660 . . . Mlle person against whom the
action is brought may bring a separate action to recover: (a)
[c]ompensatory damages; (b) [p]unitive damages; and (c) [a]ttorney's fees
and costs of bringing the separate action."
We construe a plain and unambiguous statute according to its
ordinary meaning. Cromer v. Wilson, 126 Nev. „ 225 P.3d 788, 790
(2010). The plain language of NRS 41.670 clearly conditions a defendant's
ability to bring a separate action for damages and attorney fees in
response to a SLAPP suit on the district court's grant of a special motion
to dismiss. Therefore, an anti-SLAPP suit for damages and attorney fees
may not proceed unless the district court previously granted a special
motion to dismiss. This special motion to dismiss functions as a motion for
summary judgment and allows the district court to evaluate the merits of
the alleged SLAPP claim. See NRS 41.660(3), (4); John, 125 Nev. at 753,
219 P.3d at 1281.
In this case, a special motion to dismiss was neither filed nor
granted before Mr. Strickland voluntarily dismissed the alleged SLAPP
suit. A plaintiff may voluntarily dismiss an action "at any time before
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service by the adverse party of an answer or of a motion for summary
judgment." NRCP 41(a)(1)(i). After a plaintiff files a notice of voluntary
dismissal, the file is closed and a defendant may not revive the action.
Harvey L. Lerer, Inc. v. District Court, 111 Nev. 1165, 1170, 901 P.2d 643,
646 (1995) (citing Federal Say. & Loan Ins. Corp. v. Moss, 88 Nev. 256,
259, 495 P.2d 616, 618 (1972)). Therefore, the anti-SLAPP suit remedy
was unavailable to Mr. Stubbs after Mr. Strickland's voluntary dismissal.
Mr. Stubbs claims this interpretation of NRS 41.670(2)
violates the public policy behind Nevada's anti-SLAPP statute, as it would
allow a plaintiff to file a SLAPP suit and force a defendant to suffer
expenses and intimidation, while also allowing the plaintiff to escape any
penalty if he or she dismisses the action before the defendant has a chance
to seek relief. However, "[p]laintiffs have the freedom to reconsider the
wisdom of their actions without penalty before defendants have incurred
clearly identifiable and recoverable legal fees." S.B. Beach Properties v.
Berti, 138 P.3d 713, 718 (Cal. 2006).
S.B. Beach Properties is instructive here. In reviewing facts
similar to this instant case, the California Supreme Court acknowledged
that legal actions, even those ultimately dismissed, are a burden on a
defendant. Id. Nonetheless, it ruled that permitting plaintiffs to
voluntarily dismiss their claims without penalty prior to the filing of an
anti-SLAPP special motion serves the dual purposes of allowing a plaintiff
freedom of action and extracting a defendant from a lawsuit as quickly
and inexpensively as possible. S.B. Beach Properties, 138 P.3d at 717-18.
We agree with the California court and decline to penalize plaintiffs who
opt to discontinue frivolous lawsuits.
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- • -,i541MAIRMON
Therefore, we conclude that a defendant may not pursue an
action for damages and attorney fees pursuant to NRS 41.670(2) when the
plaintiff voluntarily dismisses the alleged SLAPP suit before a special
motion to dismiss is filed or granted. As a result, the district court
properly dismissed Mr. Stubbs's complaint.
The district court did not abuse its discretion in refusing to award
attorney fees or impose sanctions because Mr. Stubbs argued for a change
or clarification in existing law
Mr. Strickland argues that the district court abused its
discretion by refusing to award him attorney fees or other sanctions
because Mr. Stubbs filed his complaint without reasonable grounds, the
complaint was not warranted by existing law, and Mr. Stubbs failed to
argue for an extension of the law.' Mr. Stubbs responds that he filed his
complaint in good faith to either clarify the law or possibly change the law
as it relates to a defendant's ability to bring a separate action for damages
and fees under NRS 41.670(2). We agree with Mr. Stubbs.
We review orders refusing to award attorney fees or issue
sanctions under NRS 18.010(2)(b), NRS 7.085(1), and NRCP 11 for an
abuse of discretion. Baldonado v. Wynn Las Vegas, 124 Nev. 951, 967, 194
1-Mr. Strickland asserts that the district court made no specific
findings when denying the motion for attorney fees and seems to suggest
that this court should require district courts to articulate findings as to
why attorney fees are not warranted. While we require a district court to
make findings regarding the basis for awarding attorney fees and the
reasonableness of an award of attorney fees, see Argentena Consol. Mining
Co. v. Jolley Urga, 125 Nev. 527, 540 n.2, 216 P.3d 779, 788 n.2 (2009),
this court has not required such findings when a district court denies a
motion for attorney fees. Therefore, we conclude that Mr. Strickland's
argument lacks merit.
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P.3d 96, 106 (2008); Bergmann v. Boyce, 109 Nev. 670, 676, 856 P.2d 560,
564 (1993).
NRS 18.010(2)(b) permits a district court to award attorney
fees to a prevailing party when the district court determines a claim of the
opposing party was brought without reasonable grounds or to harass the
prevailing party. NRS 7.085(1) also allows a district court to require an
attorney to personally pay expenses and attorney fees relating to a case
when the attorney filed or maintained an action that was not well-
grounded in fact or existing law, did not provide a good faith argument for
a change to existing law, or unreasonably extended the proceedings.
Mr. Strickland contends that Mr. Stubbs's complaint
misrepresented the law by omitting pertinent portions of NRS 41.670 that
condition a party's recovery of damages and attorney fees on the grant of a
special motion to dismiss. Mr. Strickland also asserts that Mr. Stubbs's
complaint was misleading because it relied upon a California appellate
case, ARP Pharmacy Services, Inc. v. Gallagher Bassett Services, Inc., 42
Cal. Rptr. 3d 256 (Ct. App. 2006), that did not support his position, while
failing to distinguish S.B. Beach Properties, which was directly on point.
Mr. Strickland also claims that Mr. Stubbs never raised statutory
interpretation arguments before the district court and, therefore, waived
this argument on appeal.
First, we conclude that Mr. Stubbs's complaint adequately
incorporates the relevant portions of NRS 41.670, as Counts 2 and 3 of the
complaint seek remedy under "41.635 et. seq." and Nevada is a notice
pleading state. See, e.g., Hay v. Hay, 100 Nev. 196, 198, 678 P.2d. 672,
674 (1984). Second, we do not agree that Mr. Stubbs attempted to mislead
the district court by arguing for application of ARP Pharmacy Services, as
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his argument did not suggest that case was directly on point with the
circumstances of this case. Third, we do not agree that Mr. Stubbs waived
his arguments regarding statutory interpretation, since he made similar
statutory interpretation arguments at the hearing on the motion to
dismiss, in his opposition to Mr. Strickland's motion for attorney fees, and
during the hearing on the motion.
Mr. Strickland also asserts that Mr. Stubbs filed his pleading
for an improper purpose, as Mr. Stubbs's claims focused on Councilwoman
Strickland as an elected official rather than Mr. Strickland, who was the
plaintiff in the original complaint. Mr. Stubbs argues that he mentioned
Councilwoman Strickland's misconduct in the complaint because he
believed Mr. Strickland was attempting to quiet Mr. Stubbs on behalf of
Councilwoman Strickland by filing the original complaint. We conclude
that Mr. Stubbs did not bring his complaint for an improper purpose
because Mr. Stubbs argued for a change or clarification in existing law and
nothing in the record demonstrates Mr. Stubbs made accusations he knew
were untrue. Therefore, the district court did not abuse its discretion by
denying Mr. Strickland's motion for attorney fees pursuant to NRS
7.085(1) and NRS 18.010(2)(b). 2
2Moreover, sanctions were not appropriately requested in this case
under NRCP 11. NRCP 11(c)(1)(A) requires a party to file a motion for
sanctions separately from other motions or requests. Mr. Strickland filed
a motion for attorney fees that mentioned NRCP 11 but did not file a
separate motion for sanctions based on NRCP 11. Even if Mr. Strickland
had filed the NRCP 11 request in the appropriate form, the district court
did not abuse its discretion in denying the request because Mr. Stubbs
made a good faith argument for clarification or change to existing law and
made a reasonable and competent inquiry before filing the claim, as
discussed above.
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Accordingly, we affirm tlw,d*rict court's orders. 3
). 00 J.
Gibbons
We concur:
C.J.
Pickering
Hardesty
Parraguirre
j.
Douglas
Saitta
3 We
have considered the parties' remaining arguments and conclude
they are without merit.
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