March 1, 2021- Arsenio Cordova v. Jill Cline, No. A-1-CA-37786

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Court of Appeals of New Mexico
Opinion Number: Filed 3/1/2021 9:35 AM

Filing Date: MARCH 1, 2021 Lh [> :
ark Reynolds

No. A-1-CA-37786 M

ARSENIO CORDOVA,
Plaintiff-A ppellee,
Vv.

JILL CLINE, LORETTA DELONG,
JEANELLE LIVINGSTON, CATHERINE
COLLINS, ROSE MARTINEZ, ESTHER
WINTER, ELIZABETH TRUJILLO, and

Jane Does 1 through 10,
Defendants-A ppellants.

APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY
Abigail Aragon, District Judge
Alan Maestas Law Office, P.C.

Alan H. Maestas

Kathryn J. Hardy

Taos, NM

for Appellee

Steven K. Sanders & Associates, L.L.C.
Steven Kk. Sanders

Albuquerque, NM

for Appellants DeLong, Livingston, Collins, Martinez, Winter, and Tryjillo

Ammnstrong & Amnstrong P.C.
Julia Lacy Armstrong
‘Taos, NM

for Appellant Cline

OPINION	1
B. ZAMORA, Judge.	2
{1} 	Defendants1 appeal the district court’s orders denying, in part, their request	3
for attorney fees. Specifically, Defendants challenge the district court’s orders	4
denying 	Defendants’ 	request 	for 	attorney 	fees 	incurred 	while 	this 	case 	was	5
previously on appeal. We reverse the district court’s orders denying attorney fees for	6
Defendants’ appellate work and remand with instructions that it award attorney fees	7
in accordance with this opinion. We otherwise affirm.	8
BACKGROUND	9
{2} 	At the crux of this case is the interpretation of the provision authorizing an	10
award of attorney fees in NMSA 1978, Section 38-2-9.1 (2001), otherwise known	11
as the Anti-SLAPP statute.2 The Legislature adopted the Anti-SLAPP statute to	12
ensure citizens have the right “to participate in quasi-judicial proceedings” before	13
state governmental tribunals without fear of an “abuse of the legal process” or undue	14
“financial burden[s] on those having to respond to and defend such [baseless]	15
lawsuits.” NMSA 1978, § 38-2-9.2 (2001) (stating the purpose of the Anti-SLAPP	16
statute).	17
1 Jill Cline, Loretta Delong, Jeanelle Livingston, Catherine Collins, Rose
Martinez, Esther Winter, Elizabeth Trujillo, and Jane Does 1-10.
2 The 	Anti-SLAPP 	statute 	is 	New 	Mexico’s 	law 	“prohibiting 	strategic
litigation against public participation.” Cordova v. Cline, 2017-NMSC-020, ¶ 1, 396
P.3d 159.

2
{3} 	In September 2009, Plaintiff filed a complaint alleging that when Defendants	1
signed a petition and actively supported Plaintiff’s recall from the Taos School	2
Board, such acts constituted malicious abuse of process, civil conspiracy, and prima	3
facie tort. In response, Defendants followed the procedural mechanisms set forth in	4
the Anti-SLAPP statute and filed “special motion[s] to dismiss” alleging that	5
Plaintiff’s complaint infringed on Defendants’ First Amendment right to petition	6
under the Noerr-Pennington doctrine.3 See § 38-2-9.1(A) (stating, “[a]ny action	7
seeking money damages against a person for conduct or speech undertaken or made	8
in connection with a public hearing . . . before a tribunal . . . is subject to a special	9
motion to dismiss . . . that shall be considered by the court on a priority or expedited	10
basis” (emphasis added)). The district court granted Defendants’ special motions to	11
dismiss finding Defendants’ support of Plaintiff’s recall from the Taos School Board	12
invoked “the substantive protection of the First Amendment and the procedural and	13
remedial provisions” of the Anti-SLAPP statute. Under the Anti-SLAPP statute,	14
Plaintiff appealed the district court’s order granting the special motions to dismiss.	15
See § 38-2-9.1(C) (stating that “[a]ny party shall have the right to an expedited	16
appeal from a trial court order on the special motion [to dismiss]”). Our Supreme	17
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, 2017-NMSC-020, ¶ 24.

3
Court upheld the dismissal in a final appeal and remanded the case to the district	1
court stating, “Pursuant to Section 38-2-9.1(B) [of the Anti-SLAPP statute], [the	2
defendants] are statutorily entitled to an award of attorney fees.” Cordova, 2017-	3
NMSC-020, ¶¶ 2-3, 42.	4
{4} 	On remand, Defendants filed applications requesting attorney fees, including	5
a request for fees incurred by Defendants on appeal. The district court granted	6
attorney fees only for work completed while the case was pending in the district	7
court, plus postjudgment interest “at the statutory rate of 8.75 [percent].” The district	8
court denied Defendants’ request for attorney fees for the work done on appeal and	9
denied Defendants’ request for an award of prejudgment interest with respect to the	10
awarded attorney fees. Defendants appeal.	11
DISCUSSION	12
{5} 	Defendants argue: (1) they are entitled to attorney fees under the Anti-SLAPP	13
statute for appellate work in defending their special motions to dismiss, (2) attorney	14
fees are an element of damages, and (3) the district court erred in denying Defendants	15
request for prejudgment interest and awarding postjudgment interest at the statutory	16
rate of 8.75 percent, rather than Defendants’ requested 15 percent rate. We address	17
each argument in turn.	18

4
I. 	Attorney Fees Apply to Appellate Work, Pursuant to the Anti-SLAPP	1
Statute	2
{6} 	Defendants argue that Section 38-2-9.1(B), which authorizes an award of	3
attorney fees under the Anti-SLAPP statute, applies to fees incurred while their case	4
was on appeal. In contrast, Plaintiff contends that applying the rules of statutory	5
construction “it[’s] clear that the [L]egislature meant to award attorney[] fees for the	6
underlying motion to dismiss, and not the interlocutory appeal, or any other appeal,	7
taken pursuant to, or in response to, said motion to dismiss.” 4 We agree with	8
Defendants.	9
{7} 	The “[i]nterpretation of a statute is an issue of law which we review de novo.”	10
Badilla v. Wal-Mart Stores E., Inc., 2017-NMCA-021, ¶ 8, 389 P. 3d 1050 (internal	11
quotation marks and citation omitted). In interpreting statutes, our primary goal is to	12
discern the intent of the Legislature. Valenzuela v. Snyder, 2014-NMCA-061, ¶ 16,	13
326 P.3d 1120. If the statute is clear or unambiguous, we interpret it according to its	14
plain language and refrain from further statutory interpretation. Starko, Inc. v. N.M.	15
Human Servs. Dep’t, 2014-NMSC-033, ¶ 46, 333 P.3d 947 (Vigil, C.J., dissenting);	16
4Plaintiff cites to Paz v. Tijerina, 2007-NMCA-109, ¶¶ 9-12, 142 N.M. 391,
165 P.3d 1167, 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. Id. Here, the opposite is true. Section 38-2-9.1(B) explicitly
authorizes an award of attorney fees. Hence, Plaintiff’s argument is unpersuasive.

5
see Whitely v. N.M. State Pers. Bd., 1993-NMSC-019, ¶ 5, 115 N.M. 308, 850 P.2d	1
1011 (recognizing that “the plain language of the statute [is] the primary indicator	2
of legislative intent”). However, if “adherence to the literal use of the words would	3
lead to injustice, absurdity or contradiction, we will reject the plain meaning in favor	4
of an interpretation driven by the statute’s obvious spirit or reason.” State v. Trujillo,	5
2009-NMSC-012, ¶ 21, 146 N.M. 14, 206 P.3d 125 (internal quotation marks and	6
citations omitted).	7
{8} 	We begin by interpreting Section 38-2-9.1(B) of the Anti-SLAPP statute in	8
accordance with its plain language to determine whether the district court erred in	9
denying Defendants’ request for the attorney fees they incurred while this case was	10
on appeal. The Anti-SLAPP statute provides, “[a]ny action seeking money damages	11
against a person for conduct or speech undertaken or made in connection with a	12
public hearing . . . is subject to a special motion to dismiss[.]” Section 38-2-9.1(A).	13
The plain language of Section 38-2-9.1(B) states, “if a court grants a motion to	14
dismiss . . . filed within ninety days of the filing of the moving party’s answer, the	15
court shall award reasonable attorney fees and costs incurred by the moving party in	16
defending the action.” (Emphasis added.) First, we note the word “shall” is	17
mandatory, and requires the district court to award attorney fees if the defendant is	18
successful 	in 	defending 	the 	action. 	See 	Marbob 	Energy 	Corp. 	v. 	N.M. 	Oil	19
Conservation Comm’n, 2009-NMSC-013, ¶ 22, 146 N.M. 24, 206 P.3d 135 (“It is	20

6
widely accepted that when construing statutes, ‘shall’ indicates that the provision is	1
mandatory, and we must assume that the Legislature intended the provision to be	2
mandatory absent [a] clear indication to the contrary.”). Next, we interpret the phrase	3
“defending 	the action” in 	Section 	38-2-9.1(B). An 	“action” is 	“any 	judicial	4
proceeding, which, if conducted to a determination, will result in a judgment or	5
decree.” Action, Black’s Law Dictionary (11th ed. 2019) (internal quotation marks	6
and citation omitted). Importantly, our case law also provides that “[a]n action is to	7
be 	regarded 	as 	pending 	from 	the 	time 	of 	its 	commencement 	until 	its 	final	8
termination.” Baldonado v. Navajo Freight Lines, Inc., 1977-NMCA-008, ¶ 10, 90	9
N.M. 284, 562 P.2d 1138 (internal quotation marks and citation omitted), rev’d on	10
other grounds, 1977-NMSC-025, ¶ 14, 90 N.M. 264, 562 P.2d 497. We construe the	11
words “defending the action” under Section 38-2-9.1(B) of the Anti-SLAPP statute	12
as encompassing all work related to defense of any of the various special motions	13
permitted by the statute. See § 38-2-9-1(A) (listing the special motions as a “motion	14
to dismiss, motion for judgment on the pleadings, or [a] motion for summary	15
judgment”). For purposes of the Anti-SLAPP statute, we do not see any distinction	16
between defending the action at the district court and defending the same action on	17
appeal. The “action” in Section 38-2-9.1(B), as indicated by the plain language,	18
includes a special motion to dismiss, like the motions filed in this case, which a party	19
can defend throughout the appellate process via an expedited appeal. See Whitely,	20

7
1993-NMSC-019, ¶ 5 (reaffirming that the plain language of a statute is the primary	1
indicator of legislative intent).	2
{9} 	Additionally, Plaintiff contends that the Legislature “excluded the award of	3
attorney[] fees” on appeal because attorney fees are not mentioned in Section 38-2-	4
9.1(C), which provides parties with a right to an expedited appeal. We decline to	5
read such an express limitation. The Legislature “knows how to include language in	6
a statute if it so desires[,]” Chatterjee v. King, 2011-NMCA-012, ¶ 15, 149 N.M.	7
625, 253 P.3d 915, and could have incorporated limiting language in Section 38-2-	8
9.1(A)-(C), had it chosen to. See Giddings v. SRT-Mountain Vista, LLC, 2019-	9
NMCA-025, ¶ 21, 458 P.3d 596 (acknowledging that if the Legislature intended to	10
limit the language present in a statute it would have included limiting language to	11
that effect). Our decision aligns with other cases where our Supreme Court	12
interpreted provisions in statutes as including attorney fees for appellate work,	13
despite the absence of explicit statutory language providing for the award of such	14
fees. See, e.g., Superior Concrete Pumping, Inc. v. David Montoya Contsr., Inc.,	15
1989-NMSC-023, ¶¶ 15-16, 108 N.M. 401, 773 P.3d 346 (awarding attorney fees	16
for appellate work under NMSA 1978, Section 36-2-39 (1975, Repl. Pamp.1984),	17
recompiled as NMSA 1978, Section 39-2-2.1 (1975)); Hale v. Basin Motor Co.,	18
1990-NMSC-068, ¶ 27, 110 N.M. 314, 795 P.2d 1006 (awarding attorney fees for	19
appellate work under NMSA 1978, Section 57-12-10(C) (1987, amended 2005) of	20

8
the Unfair Trade Practices Act, despite the Act not explicitly mentioning attorney	1
fees for appellate work). We hold that the plain language of the Anti-SLAPP statute	2
requires attorney fees to be awarded to a defendant who prevails on any of the special	3
motions provided by the statute, and further hold that such an award applies to all	4
stages of litigation reasonably related to the defense of the action, whether at the trial	5
level, or on appeal.	6
{10} 	We briefly address the district court’s basis for denying Defendants’ request	7
for an award of the attorney fees incurred while this case was previously on appeal.	8
The district court cited to Rule 12-403 NMRA and reasoned that “[a]ssessment of	9
costs on appeal is for the appellate court, and not for the trial court.” Rule 12-403(A)	10
provides “[u]nless otherwise provided by law, the appellate court may, in its	11
discretion, award costs to the prevailing party on request.” (Emphasis added.) In	12
contrast to other actions brought pursuant to other statutory schemes, wherein an	13
award of attorney fees is not “provided by law,” id., or where an award of attorney	14
fees is left to the discretion of the appellate court, the specific use of the word “shall”	15
in Section 38-2-9.1(B) of the Anti-SLAPP statute is a clear indication the Legislature	16
intended the award of attorney fees, including fees incurred on appeal, to be	17
mandatory. Accordingly, the district court here had the authority to award appellate	18
attorney fees incurred as part of a party’s “defense of the action” in Section 38-2-	19
9.1(B). See Measday v. Sweazea, 1968-NMCA-008, ¶¶ 35-36, 78 N.M. 781, 438	20

9
P.2d 525 (remanding to the district court for a determination of attorney fees	1
including fees incurred on appeal).	2
II. 	Attorney Fees Are Sanctions Under the Anti-SLAPP Statute	3
{11} 	Defendants contend that under the Anti-SLAPP statute attorney fees are	4
awarded as “an element of damages.” In contrast, Plaintiff argues attorney fees are	5
awarded as sanctions and “not as an element of damages.” As we explain below, we	6
conclude attorney fees awarded under the Anti-SLAPP statute are sanctions and not	7
a compensatory mechanism for damages.	8
{12} 	“It is well-settled that, absent statutory authority or rule of court, attorney fees	9
are not recoverable as an item of damages.” Lenz v. Chalamidas, 1989-NMSC-067,	10
¶ 19, 109 N.M. 113, 782 P.2d 85. With this principle in mind, we turn again to the	11
language of the Anti-SLAPP statute to determine if the Legislature intended the	12
provision authorizing an award of attorney fees to constitute an award of damages	13
or a sanction. See Valenzuela, 2014-NMCA-061, ¶ 16 (deriving the intent of the	14
Legislature is the most important goal in statutory interpretation). Section 38-2-	15
9.1(B) states, “If the rights afforded by this section are raised as an affirmative	16
defense and if [the] court grants a motion to dismiss . . . the court shall award	17
reasonable attorney fees and costs incurred by the moving party in defending the	18
action.” In determining “legislative intent we may look to the title, and ordinarily it	19
may be considered as a part of the act if necessary to its construction.” State v.	20

10
Richardson, 1944-NMSC-059, ¶ 21, 48 N.M. 544, 154 P.2d 224. The title of the	1
Anti-SLAPP statute states, “Special motion to dismiss unwarranted or specious	2
lawsuits; procedures; sanctions; severability.” Section 38-2-9.1 (emphasis added).5
3
The issue of whether an award of attorney fees constitutes a sanction under New	4
Mexico law has already been addressed by the United States Court of Appeals for	5
the Tenth Circuit, and we find its reasoning persuasive. In Los Lobos Renewable	6
Power, LLC v. AmeriCulture, Inc., the court reasoned, “as [Section] 38-2-9.1’s title	7
plainly suggests, Subsection B’s first sentence provides for the imposition of fees	8
and costs as a sanction primarily designed not to compensate for legal services but	9
to vindicate First Amendment rights threatened by a kind of unwarranted or specious	10
litigation.” 885 F.3d 659, 671 (10th Cir. 2018) (internal quotation marks omitted).	11
We agree.	12
{13} 	Our conclusion is consistent with the fact that the Anti-SLAPP statute is a	13
procedural mechanism and does not create a cause of action or claim entitling a party	14
to damages, which is a further indication that an award of attorney fees is a sanction.	15
The Anti-SLAPP statute does not reference any potential claim; rather subsequent	16
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)).

11
cases interpreting the statute universally recognize that it is a procedural mechanism.	1
See, e.g., Los Lobos Renewable Power, 885 F.3d. at 673 (“The statute’s purpose is	2
the prompt termination of certain lawsuits the New Mexico Legislature deemed to	3
be both unduly burdensome and a threat to First Amendment rights.”); Cordova,	4
2017-NMSC-020, ¶¶ 1, 19 (recognizing a defendant is “entitled to the procedural	5
protections” of the Anti-SLAPP statute and stating that the statute creates “expedited	6
procedures for dismissing” SLAPP suits). To the contrary, the Anti-SLAPP statute	7
does not limit the exercise of a party’s “right or remedy . . . granted pursuant to	8
another constitutional, statutory, common law or administrative provision, including	9
civil actions for defamation or malicious abuse of process.” Section 38-2-9.1(E).	10
Consequentially, because the Anti-SLAPP statute does not create a cause of action,	11
we cannot reasonably read the provision authorizing an award of attorney fees in	12
Section 38-2-9.1(B) as entitling a party to damages. Thus, we hold that the	13
Legislature intended the provision authorizing an award of attorney fees in Section	14
38-2-9.1(B) of the Anti-SLAPP statute to be a sanction, and not a mechanism for	15
compensating or awarding damages.	16
III. 	Interest on Attorney Fees	17
{14} 	Lastly, Defendants argue that Plaintiff’s original SLAPP suit constituted	18
tortious conduct against Defendants entitling them to: (1) an award of prejudgment	19

12
interest on their request for attorney fees, and (2) a 15 percent rate on postjudgment	1
interest as opposed to an 8.75 percent rate.	2
A. 	Prejudgment Interest	3
{15} 	Defendants contend they are entitled to an award of prejudgment interest on	4
their request for attorney fees. The district court denied Defendants request for	5
prejudgment interest stating, “[Section] 38-2-9.1(B) allows [for attorney] fees and	6
costs for the prevailing party on a motion to dismiss” and “it does not include an	7
award of prejudgment interest.” Because Defendants’ couched their prejudgment	8
interest argument as a purely legal challenge—asserting that attorney fees are	9
damages—we review it de novo. See State ex rel. Solsbury Hill, LLC v. Liberty Mut.	10
Ins. Co., 2012-NMCA-032, ¶ 31, 273 P.3d 1 (reviewing a party’s prejudgment	11
interest argument under a de novo standard of review when it involves a purely legal	12
question).	13
{16} 	NMSA 1978, Section 56-8-4(B)(1), (2) (2004) provides the district court with	14
discretion to award prejudgment interest in certain circumstances. Section 56-8-4(B)	15
provides that, “the court in its discretion may allow interest of up to ten percent from	16
the date the complaint is served upon the defendant after considering, among other	17
things: (1) if the plaintiff was the cause of unreasonable delay in the adjudication of	18
the plaintiff’s claims; and (2) if the defendant had previously made a reasonable and	19
timely offer of settlement to the plaintiff.” Section 56-8-4 applies to all actions,	20

13
including tort actions in which damages are not reasonably ascertainable before trial.	1
Southard v. Fox, 1992-NMCA-045, ¶ 7, 113 N.M. 774, 833 P.2d 251(emphasis	2
added).	3
{17} 	As we understand Defendants’ argument, they allege that because their award	4
of attorney fees under the Anti-SLAPP statute are damages, they are entitled to	5
prejudgment interest. We have already rejected Defendants’ argument that attorney	6
fees constitute damages in this context. The Anti-SLAPP statute does not provide a	7
statutory basis for Defendants to file a cause of action or assert a claim or	8
counterclaim against Plaintiff and thus, Plaintiff is not liable for damages to	9
Defendants.6 To the contrary, “the [Anti-SLAPP] statute is procedural in all its	10
aspects.” Los Lobos Renewable Power, 885 F.3d. at 673. Because the Anti-SLAPP	11
statute does not establish an independent claim that Defendants can pursue, we	12
cannot reasonably interpret Section 38-2-9.1(B) as entitling them to prejudgment	13
interest on their request for attorney fees. Accordingly, the district court did not err	14
in denying Defendants’ request for prejudgment interest.	15
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.

14
B. 	Postjudgment Interest	1
{18} 	Relying on Section 56-8-4(A), Defendants’ argue the district court erred in	2
only awarding postjudgment interest at an 8.75 percent rate claiming that their	3
requested attorney fees were damages. We are not persuaded.	4
{19} 	“We review the court’s application of Section 56-8-4(A) to the facts de novo.”	5
Bird v. State Farm. Mut. Auto. Ins. Co., 2007-NMCA-088, ¶ 36, 142 N.M. 346, 165	6
P.3d 343. Section 56-8-4(A)(2) provides, “Interest shall be allowed on judgments	7
and decrees for the payment of money from entry and shall be calculated at the rate	8
of eight and three-fourths percent per year, unless . . . the judgment is based on	9
tortious conduct, bad faith or intentional or willful acts, in which case interest shall	10
be computed at the rate of fifteen percent.” Defendants fail to direct our attention to	11
evidence or findings in the record supporting their contention that the filing of	12
Plaintiff’s complaint constituted conduct that was tortious, intentional, or in bad faith	13
as required by Section 56-8-4(A)(2). Cf Pub. Serv. Co. of N.M. v. Diamond D Constr.	14
Co., 2001-NMCA-082, ¶ 62, 131 N.M. 100, 33 P.3d 651 (“[I]f a plaintiff wants to	15
[e]nsure that a judgment is assessed the higher 15 percent interest rate in a case not	16
based in tort or bad faith, the plaintiff must specifically request that the fact[-]finder	17
make 	a 	finding 	of 	intention 	or 	willfulness.”). 	Thus, 	we 	decline 	to 	address	18
Defendants’ postjudgment interest argument further. See Muse v. Muse, 2009-	19
NMCA-003, ¶ 72, 145 N.M. 451, 200 P.3d 104 (“We will not search the record for	20

15
facts, arguments, and rulings in order to support generalized arguments.”); see also	1
Santa Fe Expl. Co. v. Oil Conservation Comm’n, 1992-NMSC-044, ¶ 11, 114 N.M.	2
103, 835 P.2d 819 (stating appellate courts have no duty to entertain uncited and	3
unsupported arguments).	4
CONCLUSION	5
{20} 	We reverse the district court’s denial of Defendants’ request for an award of	6
reasonable attorney fees to fees incurred related to the appeal. We remand for the	7
district court to award reasonable attorney fees to Defendants in accordance with our	8
holding, but we otherwise affirm.	9
{21} 	IT IS SO ORDERED.	10
_____________________________	11
BRIANA H. ZAMORA, Judge	12
WE CONCUR:	13
_______________________________	14
J. MILES HANISEE, Chief Judge	15
_______________________________	16
KRISTINA BOGARDUS, Judge	17