January 6, 2021- Cynthia Ferebee v. Robert T. Hume, No. A-1-CA-37202

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number: _______________	2
Filing Date: January 6, 2021	3
No. A-1-CA-37202	4
CYNTHIA FEREBEE,	5
Plaintiff-Appellant,	6
v.	7
ROBERT T. HUME, RENATE C.	8
HUME, and HUME & ASSOCIATES,	9
LLC,	10
Defendants-Appellees.	11
APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY	12
Sarah C. Backus, District Judge	13
Bardacke Allison LLP	14
Benjamin W. Allison	15
Breanna Contreras	16
Santa Fe, NM	17
for Appellant	18
Keleher & McLeod, P.A.	19
Thomas C. Bird	20
Gary J. Van Luchene	21
Albuquerque, NM	22
for Appellees	23
Court of Appeals of New Mexico
Filed 1/6/2021 9:45 AM

OPINION	1
VARGAS, Judge.	2
{1} 	This case requires that we interpret the scope of our jurisdiction granted by	3
New Mexico’s statute prohibiting strategic litigation against public participation	4
(Anti-SLAPP statute), NMSA 1978, § 38-2-9.1 (2001), as well as the applicability	5
of the statute’s protections to speech or conduct made in connection with federal	6
proceedings. Plaintiff Cynthia Ferebee appeals the district court’s denial of her	7
motion to dismiss counterclaims filed by Defendants Robert T. Hume (Defendant	8
Robert), Renate C. Hume, and Hume & Associates, LLC (collectively, Defendants)	9
under the Anti-SLAPP statute, as well as her request for Rule 1-011 NMRA	10
sanctions against Defendants. In response, Defendants challenge this Court’s	11
jurisdiction to hear Plaintiff’s appeal. We hold that we have jurisdiction over	12
Plaintiff’s appeal from the district court’s order denying her motion to dismiss and	13
that the district court did not err in denying the motion because the Anti-SLAPP	14
statute does not protect participation in federal proceedings. Further, we decline to	15
review the portion of the district court’s order denying Plaintiff’s request for	16
sanctions. Accordingly, we affirm.	17
BACKGROUND	18
{2} 	Plaintiff’s appeal stems from an action filed by Plaintiff in district court	19
against Defendants for malicious abuse of process and defamation, in which she	20

2
alleged in relevant part, that Defendants filed meritless claims against her in	1
retaliation for her submission of sworn declarations to the United States Department	2
of Commerce. Plaintiff alleged that while she was employed at Hume & Associates,	3
LLC, a firm that represents New Mexico garlic farmers and Chinese companies, she	4
became concerned that Defendant Robert was not representing the best interests of	5
his New Mexico clients. Plaintiff alleged that Defendant Robert failed to inform his	6
New 	Mexico 	clients 	that 	their 	participation 	in 	a 	Department 	of 	Commerce	7
administrative review of Harmoni International Spice, Inc. (Harmoni)—his Chinese	8
clients’ biggest competitor—was intended to help his Chinese clients in a trade war	9
with Harmoni. Plaintiff further explained that she discovered Defendant Robert had	10
misrepresented to the Department of Commerce that he was working pro bono for	11
his New Mexico clients.	12
{3} 	After Plaintiff submitted declarations to the Department of Commerce,	13
Defendants filed three claims against her in magistrate court. In these claims,	14
Defendants alleged Plaintiff (1) improperly used the office credit card without	15
authorization; (2) forged Defendant Robert’s signature on checks; and (3) failed to	16
repay a loan made by Defendant Robert to Plaintiff. As a result of Defendants’	17
magistrate 	court 	claims, 	Plaintiff 	filed 	her 	malicious 	abuse 	of 	process 	and	18
defamation claims in district court. Defendants dismissed their magistrate court	19
claims and refiled them as counterclaims in response to Plaintiff’s complaint. Three	20

3
of Defendants’ four counterclaims (the financial counterclaims) were identical to the	1
magistrate court claims. The fourth counterclaim (the duty-of-loyalty counterclaim)	2
newly alleged that Plaintiff had breached her duty of loyalty to her employer by	3
using “her employer’s confidential information and communications for purposes of	4
her own adverse to the employer or for the purposes of a third-party adverse to the	5
employer.”	6
{4} 	Plaintiff filed a motion to dismiss (the special motion) these counterclaims	7
under the Anti-SLAPP statute, arguing they were made in retaliation for her	8
declarations to the Department of Commerce. Additionally, Plaintiff requested that	9
the district court dismiss the counterclaims under Rule 1-011 as a sanction for the	10
improper purpose and untrue statements underlying Defendants’ claims.	11
{5} 	The district court denied Plaintiff’s special motion, concluding that the Anti-	12
SLAPP statute was inapplicable because her “alleged speech was not directed to a	13
state or local government but to a federal agency,” and further concluding that	14
“[b]ecause the counterclaims seek money damages relating to alleged financial	15
improprieties while Plaintiff . . . was employed by Defendants[,] . . . the connection	16
between the actions of the parties is tenuous.” The district court also denied	17
Plaintiff’s motion for sanctions. Plaintiff now appeals the district court’s decisions.	18

4
DISCUSSION	1
{6} 	The parties raise three issues on appeal: (1) whether this Court has jurisdiction	2
to review Plaintiff’s appeal of the district court’s denial of her special motion, (2)	3
whether the district court erred in denying Plaintiff’s special motion, and (3) whether	4
the district court erred in denying Plaintiff’s motion for sanctions. We address each	5
in turn.	6
I. 	Appellate Jurisdiction Over the District Court’s Denial of Plaintiff’s	7
Special Motion	8
{7} 	Defendants challenge this Court’s jurisdiction to hear the present appeal,	9
arguing Plaintiff’s appeal “does not proceed from a final order” and “the Anti-	10
SLAPP provision authorizing immediate appeal does not apply[.]” Defendant	11
contends that because the district court concluded that Plaintiff’s claims do not fall	12
within the purview of the Anti-SLAPP statutes and Plaintiff’s appeal is from a non-	13
final order, she is not entitled to avail herself of the expedited appeal right provided	14
by the statute. See § 38-2-9.1(C) (providing parties with a right to expedited appeal).	15
“The question of jurisdiction is a controlling consideration that must be resolved	16
before going further[.]” State ex rel Bevacqua-Young v. Steele, 2017-NMCA-081,	17
¶ 6, 406 P.3d 547 (internal quotation marks and citation omitted). “We review	18
jurisdictional questions de novo.” Id.	19
{8} 	As Plaintiff points out, our Supreme Court interpreted the expedited appeal	20
right provision as “allow[ing] any party to bring an interlocutory appeal from a trial	21

5
court order on the special motion(s) brought pursuant to [the] Anti-SLAPP statute.”	1
Cordova v. Cline, 2017-NMSC-020, ¶ 12, 396 P.3d 159. And, while Cordova made	2
clear that a final order was not necessary to invoke a party’s right to appeal under	3
the Anti-SLAPP statute, it did not specifically address a party’s right to appeal from	4
a ruling by the district court that the Anti-SLAPP statute did not protect the conduct	5
or speech at issue before the district court.	6
{9} 	Initially, we note that “[t]he appellate jurisdiction of both [the Supreme Court]	7
and the [C]ourt of [A]ppeals is within the legislative power to prescribe.” Lovelace	8
Med. Ctr. v. Mendez, 1991-NMSC-002, ¶ 11, 111 N.M. 336, 805 P.2d 603; see	9
Cordova, 2017-NMSC-020, ¶ 15 (recognizing that “[t]he Legislature has authority	10
to establish jurisdiction and create a right of appeal”). Defendants’ challenge to our	11
jurisdiction requires that we interpret the Anti-SLAPP statute to determine whether	12
the Legislature intended to grant a right to an expedited appeal of an order of the	13
district court concluding a party is not entitled to the statute’s protection. Statutory	14
interpretation is an issue of law we review de novo. See Badilla v. Wal-Mart Stores	15
E. Inc., 2015-NMSC-029, ¶ 12, 357 P.3d 936 (“Interpretation of a statute is an issue	16
of law which we review de novo.” (omissions, alteration, internal quotation marks,	17
and citation omitted)).	18
{10} 	The relevant provisions of the Anti-SLAPP statute set out a party’s rights to	19
the expedited review of specific claims brought against that party for his or her	20

6
conduct or speech in certain government proceedings, including the expedited right	1
to appeal:	2
A. 	Any action seeking money damages against a person for	3
conduct or speech undertaken or made in connection with a public	4
hearing or public meeting in a quasi-judicial proceeding before a	5
tribunal or decision-making body of any political subdivision of the	6
state is subject to a special motion to dismiss, motion for judgment on	7
the pleadings, or motion for summary judgment that shall be considered	8
by the court on a priority or expedited basis to ensure the early	9
consideration of the issues raised by the motion and to prevent the	10
unnecessary expense of litigation.	11
B. 	If the rights afforded by this section are raised as an	12
affirmative defense and if a court grants a motion to dismiss, a motion	13
for judgment on the pleadings or a motion for summary judgment filed	14
within ninety days of the filing of the moving party’s answer, the court	15
shall award reasonable attorney fees and costs incurred by the moving	16
party in defending the action. If the court finds that a special motion to	17
dismiss or motion for summary judgment is frivolous or solely intended	18
to cause unnecessary delay, the court shall award costs and reasonable	19
attorney fees to the party prevailing on the motion.	20
C. 	Any party shall have the right to an expedited appeal from	21
a trial court order on the special motions described in Subsection B of	22
this section or from a trial court’s failure to rule on the motion on an	23
expedited basis.	24
Section 38-2-9.1(A)-(C) (emphasis added).	25
{11} 	When 	interpreting statutes, we must determine and give effect to the	26
Legislature’s intent, which requires that “we look first to the plain language of the	27
statute, giving the words their ordinary meaning, unless the Legislature indicates a	28
different one was intended.” Chatterjee v. King, 2012-NMSC-019, ¶ 11, 280 P.3d	29
283 (alteration, internal quotation marks, and citation omitted). In addition to the	30

7
language used, we “consider the statute’s history and background.” Valenzuela v.	1
Snyder, 2014-NMCA-061, ¶ 16, 326 P.3d 1120 (internal quotation marks and	2
citation omitted). “[I]f the meaning of a statute is truly clear—not vague, uncertain,	3
ambiguous, or otherwise doubtful—it is of course the responsibility of the judiciary	4
to apply the statute as written and not to second-guess the [L]egislature’s selection	5
from among competing policies or adoption of one of perhaps several ways of	6
effectuating a particular legislative objective.” State ex rel. Helman v. Gallegos,	7
1994-NMSC-023, ¶ 22, 117 N.M. 346, 871 P.2d 1352.	8
{12} 	The Anti-SLAPP statute permits any party to one of the special motions	9
described in Section 38-2-9.1(B) to appeal from a trial court order on those motions.	10
Section 38-2-9.1(C); see also § 38-2-9.1(B) (identifying the types of motions entitled	11
to review). The plain language of Section 38-2-9.1(C) allowing for an expedited	12
appeal does not distinguish between decisions on the merits of the claims raised in	13
the special motion or decisions on the applicability of the Anti-SLAPP statute,	14
suggesting that both types of decisions are entitled to an expedited appeal.	15
Nonetheless, as Chief Justice Montgomery warned in Helman, “courts must exercise	16
caution in applying the plain meaning rule. Its beguiling simplicity may mask a host	17
of reasons why a statute, apparently clear and unambiguous on its face, may for one	18
reason or another give rise to legitimate (i.e., nonfrivolous) differences of opinion	19
concerning the statute’s meaning. In such a case, it can rarely be said that the	20

8
legislation is indeed free from all ambiguity and is crystal clear in its meaning.”	1
1994-NMSC-023, ¶ 23.	2
{13} 	Here, the Anti-SLAPP statute’s history and background are instructive and	3
indicate that the Legislature did not intend to limit the right to an expedited appeal	4
to those instances in which the district court’s order ruled on the merits of a party’s	5
claims. NMSA 1978, § 38-2-9.2 (2001) sets out the Legislature’s findings and	6
purpose in enacting the Anti-SLAPP statute, explaining that:	7
[I]t is the public policy of New Mexico to protect the rights of its	8
citizens to participate in quasi-judicial proceedings before local and	9
state 	governmental 	tribunals. 	Baseless 	civil 	lawsuits 	seeking 	or	10
claiming millions of dollars have been filed against persons for	11
exercising their right to petition and to participate in quasi-judicial	12
proceedings before governmental tribunals. Such lawsuits can be an	13
abuse of the legal process and can impose an undue financial burden on	14
those having to respond to and defend such lawsuits and may chill and	15
punish participation in public affairs and the institutions of democratic	16
government. These lawsuits should be subject to prompt dismissal or	17
judgment to prevent the abuse of the legal process and avoid the burden	18
imposed by such baseless lawsuits.	19
{14} 	As the Legislature makes clear, the Anti-SLAPP statute is intended to ensure	20
that baseless lawsuits brought to chill persons from exercising the petition rights	21
described therein, are promptly dismissed to prevent the abuse of the legal process	22
and to protect persons exercising those rights from the burdens of such suits. We see	23
no reason this policy would not extend to a party’s right to review of the district	24
court’s decision regarding the applicability of the Anti-SLAPP statute. In the event	25
a district court were to erroneously determine that the conduct or speech at issue was	26

9
not subject to the protections of the Anti-SLAPP statute, the party invoking the	1
statute’s protections would be deprived of those protections, only to be vindicated	2
after protracted and expensive litigation—the circumstances the Legislature sought	3
to prevent. To accept Defendant’s interpretation of Section 38-9-2.1, we would have	4
to read into that statute a limitation that the Legislature did not include in the text	5
and overlook the purpose of the statute, itself.	6
{15} 	Here, the district court denied Plaintiff’s special motion in which she asserted	7
that Defendants’ counterclaims sought damages for conduct or speech falling within	8
the scope of the Anti-SLAPP statute. We conclude the nature and denial of Plaintiff’s	9
motion was sufficient to invoke the right to an expedited appeal, thereby providing	10
this Court with jurisdiction over the matter. See § 38-2-9.1(C); Cordova, 2017-	11
NMSC-020, ¶ 17 (concluding “that the Anti-SLAPP statute provides a right to an	12
interlocutory appeal under the expedited appeal provision”). We now consider	13
whether the district court erred in denying Plaintiff’s special motion.	14
II. 	The District Court’s Denial of Plaintiff’s Special Motion	15
{16} 	Plaintiff argues the district court erred in denying her special motion because	16
Defendants’ claims directly targeted her speech, the Department of Commerce	17
proceedings in which she participated are among the type protected by the Anti-	18
SLAPP statutes, and she is entitled to the substantive protections provided by the	19
Noerr-Pennington doctrine. See Cordova, 2017-NMSC-020, ¶ 24 (explaining that	20

10
the 	Noerr-Pennington 	doctrine is the mechanism by which substantive First	1
Amendment protections are provided and that it shields from retaliation “those who	2
engage in conduct aimed at influencing government, including litigation, . . .	3
provided their conduct is not a sham”). We conclude that the district court correctly	4
held that Plaintiff’s conduct or speech does not fall within the procedural protections	5
of the Anti-SLAPP statute because it was not made “before a tribunal or decision-	6
making body of [a] political subdivision of the state[.]” Section 38-2-9.1(A).	7
Therefore, we decline to engage in the interlocutory review of the district court’s	8
denial of her motion to dismiss provided for in the Anti-SLAPP statute. See § 38-2-	9
9.1(C) (providing for a right to an expedited interlocutory review).	10
{17} 	Section 38-2-9.1(A) provides procedural protections to “a person for conduct	11
or speech undertaken or made in connection with a public hearing or public meeting	12
in a quasi-judicial proceeding before a tribunal or decision-making body of any	13
political subdivision of the state” in the form of a priority or expedited review of the	14
special motions identified in Section 38-2-9.1(A) (emphasis added). Plaintiff	15
contends that the district court erred in narrowly interpreting the Anti-SLAPP statute	16
to apply only to conduct or speech directed at a state or local government body,	17
excluding protections for speech or conduct made to federal agencies. In particular,	18
Plaintiff argues that such a narrow reading defeats the legislative intent to protect	19

11
participation not only before state or local government bodies, but in the democratic	1
process as a whole. We disagree.	2
{18} 	Turning again to our canons of statutory construction, we look to the plain	3
language and consider the history and background of Section 38-2-9.1 to determine	4
the Legislature’s intended scope of the statute. See Valenzuela, 2014-NMCA-061,	5
¶ 16. In this instance, the Legislature explicitly requires that the conduct or speech	6
at issue be made in connection with certain proceedings before “a political	7
subdivision of the state.” Section 38-2-9.1(A), (D). “[W]e 	must assume the	8
[L]egislature chose its words advisedly to express its meaning unless the contrary	9
intent clearly appears.” State v. Maestas, 2007-NMSC-001, ¶ 22, 140 N.M. 836, 149	10
P.3d 933 (alterations, internal quotation marks, and citation omitted).	11
{19} 	In support of its argument that the Legislature did not intend to limit the	12
procedural protections of the Anti-SLAPP statute to proceedings before “a political	13
subdivision of the state[,]” Plaintiff directs our attention to the language in Section	14
38-2-9.1(A) referencing “public hearing[s]” and “public meeting[s] in a quasi-	15
judicial proceeding.” Plaintiff points to the definition of “public meeting in a quasi-	16
judicial proceeding,” which “includes any meeting established and held by a state or	17
local governmental entity, including, without limitations, meetings or presentations	18
before the state, city, town or village councils, planning commissions, review boards	19
or commissions.” Section 38-2-9.1(D). Plaintiff contends that “includes” is not a	20

12
term of limitation, suggesting room for other types of meetings, including those	1
associated with federal proceedings. See United Rentals Nw., Inc. v. Yearout Mech.,	2
Inc., 2010-NMSC-030, ¶ 13, 148 N.M. 426, 237 P.3d 728 (noting “that the use of	3
the word ‘includes’ to connect a general clause to a list of enumerated examples	4
demonstrates a legislative intent to provide an incomplete list”). However, in this	5
instance, the use of the term “includes” was intended to give an incomplete list of	6
examples of “meeting[s] established and held by a state or local governmental	7
entity,” not a list of governmental entities before which meetings could be held.	8
Thus, we find no error in the district court’s conclusion that the definition of a	9
“public meeting in a quasi-judicial proceeding” limits the applicability of the Anti-	10
SLAPP statute “to speech made to a political subdivision of the state or local	11
government.”	12
{20} 	Plaintiff contends that the Anti-SLAPP statute “also protects speech made in	13
connection with a ‘public hearing,’ a term which is not defined and not limited to	14
state or local proceedings.” Plaintiff urges us to interpret the term “public hearing”	15
more expansively because it “suggests an inherently more formal proceeding” as	16
opposed to the open-ended reference to a “public meeting.” The Anti-SLAPP statute,	17
however, makes no distinction between the level of formality of any particular	18
proceeding. Nothing in the plain language of the Anti-SLAPP statute indicates that	19
it is applicable to any proceedings other than those “before a tribunal or decision-	20

13
making body of any political subdivision of the state,” and we will not add terms	1
that are not there. See Regents of the Univ. of N.M. v. N.M. Fed’n of Teachers, 1998-	2
NMSC-020, ¶ 28, 125 N.M. 401, 962 P.2d 1236 (concluding that courts “will not	3
read into a statute or ordinance language which is not there, particularly if it makes	4
sense 	as 	written” 	(internal 	quotation 	marks 	and 	citation 	omitted)); 	State 	v.	5
Greenwood, 2012-NMCA-017, ¶ 38, 271 P.3d 753 (“The Legislature knows how to	6
include language in a statute if it so desires.” (alteration, internal quotation marks,	7
and citation omitted)).	8
{21} 	Our construction of Section 38-2-9.1 is consistent with the findings and	9
purpose of the Anti-SLAPP statute, which explains “that it is the public policy of	10
New Mexico to protect the rights of its citizens to participate in quasi-judicial	11
proceedings 	before 	local 	and 	state 	government 	tribunals.” 	Section 	38-2-9.2	12
(emphasis added). Had the Legislature saw fit to include federal proceedings, it was	13
capable of including language to that effect. See Pueblo of Picuris v. N.M. Energy,	14
Mins. & Nat. Res. Dep’t, 2001-NMCA-084, ¶ 14, 131 N.M. 166, 33 P.3d 916	15
(explaining that “we assume that the [L]egislature used specific language for a	16
reason”); cf. Md. Code Ann., MD. Cts. & Jud. Proc. § 5-807(c) (West 2010) (“A	17
defendant in a SLAPP suit is not civilly liable for communicating with a federal,	18
[s]tate, or local government body or the public at large[.]” (emphasis added)). But	19
see Frederick M. Rowe & Leo M. Romero, Resolving Land-Use Disputes by	20

14
Intimidation: SLAPP Suits in New Mexico, 32 N.M. L. Rev. 217, 236 (2002) (“The	1
statute does not, however, define ‘public hearing’ and does not limit this setting to	2
particular official tribunals.”).	3
{22} 	Plaintiff argues application of this construction would lead to an unjust result	4
because it would permit parties such as Defendants to retaliate against those who	5
participate in federal proceedings. To be sure, “if an adherence to the literal use of	6
the [statute’s] words lead to injustice, absurdity or contradiction, we will construe	7
the statute according to its obvious spirit or reason.” Baker v. Hedstrom, 2013-	8
NMSC-043, ¶ 11, 309 P.3d 1047 (alteration, internal quotation marks, and citation	9
omitted). However, we cannot say that the Legislature’s decision to provide	10
procedural protections for conduct or speech made in connection with certain	11
proceedings 	before 	“tribunal[s] 	or 	decision-making 	bod[ies] 	of 	any 	political	12
subdivision 	of 	the 	state[,]” 	Section 	38-2-9.1(A), 	and 	omit 	protections 	for	13
participation in federal proceedings is unjust, absurd or contradictory, as the stated	14
intent of the Anti-SLAPP statute is to protect citizens’ participation rights “before	15
local and state governmental tribunals,” not federal proceedings. See Helman, 1994-	16
NMSC-023, ¶ 22 (explaining that it is not the role of the judiciary to “second-guess	17
the [L]egislature’s selection from among competing policies”).	18
{23} 	In addition to the plain language of a statute, our review of legislative intent	19
is informed by “the context in which [the statute] was promulgated, including the	20

15
history of the statute and the object and purpose the Legislature sought to	1
accomplish.” State v. Off. of Pub. Def. ex rel. Muqqddin, 2012-NMSC-029, ¶ 13,	2
285 P.3d 622 (internal quotation marks and citation omitted). We find nothing—nor	3
does Plaintiff point us to anything—from the historical context in which the Anti-	4
SLAPP statute was promulgated supporting the conclusion that the Legislature	5
sought to protect participation in federal proceedings. Accordingly, we decline to	6
depart from the plain language of the Anti-SLAPP statute. We conclude the Anti-	7
SLAPP statute does not include within its protections conduct or speech undertaken	8
or made in connection with a public hearing or public meeting in a quasi-judicial	9
proceeding before a tribunal or decision-making body of the federal government.	10
See N.M. Petroleum Marketers Ass’n v. N.M. Env’t Improvement Bd., 2007-NMCA-	11
060, ¶ 11, 141 N.M. 678, 160 P.3d 587 (applying the plain meaning rule when the	12
appellants fail to convince this Court that adherence to the literal meaning of the	13
language 	employed 	by 	the 	Legislature 	would 	lead 	to 	an 	unjust, 	absurd, 	or	14
contradictory result); see also Maestas, 2007-NMSC-001, ¶ 15 (“We may only add	15
words to a statute where it is necessary to make the statute conform to the	16
[L]egislature’s clear intent, or to prevent the statute from being absurd.”). Having	17
concluded 	the 	Anti-SLAPP 	statute 	does 	not 	protect 	participation 	in 	federal	18
government proceedings, we determine the district court did not err in denying	19
Plaintiff’s special motion on this basis.	20

16
{24} 	We recognize that Plaintiff contends the conduct or speech at issue in the duty-	1
of-loyalty 	counterclaim 	was 	not 	exclusively 	directed 	to 	the 	Department 	of	2
Commerce but also to the Disciplinary Board of our New Mexico Supreme Court.	3
Although Plaintiff acknowledges she failed to raise this factual assertion in the	4
district court, she argues this Court should nevertheless address her argument as it	5
raises issues involving “general public interest” and “fundamental rights of a party,”	6
i.e., the exercise of her constitutionally-protected speech rights without fear of	7
reprisal. See Benz v. Town Ctr. Land, LLC, 2013-NMCA-111, ¶ 24, 314 P.3d 688	8
(“To preserve an issue for review on appeal, it must appear that appellant fairly	9
invoked a ruling of the trial court on the same grounds argued in the appellate court.”	10
(internal quotation marks and citation omitted)); see also Rule 12-321(B)(2)(a), (d)	11
NMRA (providing the “general public interest” and “fundamental rights” exceptions	12
to the preservation rule).	13
{25} 	We note that “[t]he primary purposes for the preservation rule are: (1) to	14
specifically alert the district court to a claim of error so that any mistake can be	15
corrected at that time, (2) to allow the opposing party a fair opportunity to respond	16
to the claim of error and to show why the court should rule against that claim, and	17
(3) to create a record sufficient to allow this Court to make an informed decision	18
regarding the contested issue.” Sandoval v. Baker Hughes Oilfield Operations, Inc.,	19
2009-NMCA-095, ¶ 56, 146 N.M. 853, 215 P.3d 791. Plaintiff’s failure to raise this	20

17
argument below deprived the district court of the opportunity to appropriately craft	1
its order according to the purported factual basis of the duty-of-loyalty counterclaim,	2
the Defendants of an opportunity to respond with factual and/or legal assertions	3
based on that factual basis, and this Court of a sufficient record from which we could	4
render an informed decision about whether the duty-of-loyalty counterclaim should	5
have been dismissed under the Anti-SLAPP statute.	6
{26} 	Because our consideration of such unpreserved issues is subject to our	7
discretion, we decline to address Plaintiff’s argument on this basis. See Rule 12-	8
321(B)(2) (explaining that our consideration of the exceptions found in Rule 12-	9
321(B)(2) is discretionary). Having concluded that Defendants’ counterclaims do	10
not fall within the class of actions governed by the Anti-SLAPP statute, we need not	11
proceed to a discussion of whether Plaintiff is entitled to the substantive protections	12
under the Noerr-Pennington doctrine.1
13
III. 	Rule 1-011 Sanctions	14
{27} 	Plaintiff also challenges the district court’s denial of her request for sanctions	15
against Defendants under Rule 1-011 based on Defendants’ alleged “improper	16
purpose and untrue and inconsistent statements underlying their claims against	17
[Plaintiff.]” Plaintiff, however, fails to explain how this Court has appellate	18
1 Our holding should not be construed to preclude the district court from
addressing this issue on remand.

18
jurisdiction over the district court’s non-final decision on her request for sanctions,	1
particularly when the district court did not craft its order in conformity with NMSA	2
1978, Section 39-3-4(A) (1999) (providing that when the district court believes its	3
interlocutory decision “involves a controlling question of law as to which there is	4
substantial ground for difference of opinion and that an immediate appeal from the	5
order or decision may materially advance the ultimate termination of the ligation,	6
[the district court] shall so state in writing”). See Capco Acquisub, Inc. v. Greka	7
Energy Corp., 2007-NMCA-011, ¶ 17, 140 N.M. 920, 149 P.3d 1017 (recognizing	8
“the general principle, known as the final judgment rule, that our appellate	9
jurisdiction is limited to review of any final judgment or decision, any interlocutory	10
order or decision which practically disposes of the merits of the action, or any final	11
order after entry of judgment which affects substantial rights” (alteration, internal	12
quotation marks, and citations omitted)); see also Curry v. Great Nw. Inc., 2014-	13
NMCA-031, ¶ 28, 320 P.3d 482 (“Where a party cites no authority to support an	14
argument, we may assume no such authority exists.”); Headley v. Morgan Mgmt.	15
Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 (“We will not review	16
unclear arguments, or guess at what [a party’s] arguments might be.”). We therefore	17
decline to review this argument at this time.	18

19
CONCLUSION	1
{28} 	For the foregoing reasons, we affirm the district court’s order to the extent it	2
concludes that the Anti-SLAPP statute was inapplicable and dismiss Plaintiff’s	3
appeal as premature. We further decline to review its order to the extent it denies	4
Plaintiff’s request for sanctions and remand to the district court for further	5
proceedings consistent with this opinion.	6
{29} 	IT IS SO ORDERED.	7
______________________________	8
JULIE J. VARGAS, Judge	9
WE CONCUR:	10
____________________________________	11
MEGAN P. DUFFY, Judge	12
____________________________________	13
SHAMMARA H. HENDERSON, Judge	14