       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:       _____________

Filing Date: March 11, 2013

Docket No. 30,546

ARSENIO CORDOVA,

       Plaintiff-Appellant,

v.

JILL CLINE, THOMAS TAFOYA,
LORETTA DELONG, JEANELLE LIVINGSTON,
CATHERINE COLLINS, ROSE MARTINEZ,
ESTHER WINTER, ELIZABETH TRUJILLO,
and JANE DOES 1 THROUGH 10,

       Defendants-Appellees.

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

David Henderson
Santa Fe, NM

for Appellant

Armstrong & Armstrong, P.C.
Julia Lacy Armstrong
Taos, NM

for Appellee Cline

The Herrera Firm, P.C.
Samuel M. Herrera
Taos, NM

for Appellee Tafoya

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

                                         1
Albuquerque, NM

for Appellees DeLong, Livingston, Collins, Martinez, Winter, and Trujillo

                                         OPINION

KENNEDY, Judge.

{1}      This case requires us to decide whether the New Mexico statute prohibiting strategic
litigation against public participation (Anti-SLAPP statute) bars Plaintiff Arsenio Cordova’s
lawsuit against members of Citizens for Quality Education (CQE), an organization that tried
to institute a recall election to remove Cordova from the school board. We conclude that the
Anti-SLAPP statute does not apply to a hearing in district court as a part of the recall
process. We reverse the district court’s grant of the motion to dismiss and determine that
Cordova successfully stated a claim for malicious abuse of process, and Defendants were not
entitled to dismissal by the First Amendment. We dismiss the appeal as to Defendants Jill
Cline and Thomas Tafoya, against whom the judgment is not final.

I.     BACKGROUND

{2}     Cordova was a member and vice president of the Taos Municipal Schools Board of
Education. CQE was formed to initiate a recall process against Cordova under the Local
School Board Member Recall Act (Act). NMSA 1978, §§ 22-7-1 to -16 (1977, as amended
through 1993). CQE members, many of whom were Taos County school employees, were
unhappy with some of Cordova’s actions on the school board and filed a recall petition with
the Taos County Clerk on June 1, 2009. The clerk duly filed her application for a district
court hearing on the sufficiency of the recall allegations as is required by the Act. See § 22-
7-9.1(A).

{3}     Under the Act, the hearing should have taken place within ten days. Section 22-7-
9.1(B). However, CQE continued the case twice, and the hearing finally took place on
September 16, 2009. CQE voluntarily dismissed the recall petition at the hearing. Because
of the dismissal, the district court made no determination of whether sufficient facts existed
to allow the recall process to continue. No record of those proceedings was provided for this
case.

{4}      Cordova filed this suit on September 18, 2009, against eight individual members of
CQE, in keeping with his claim that CQE could not legally exist as an entity that may file
a recall petition. The individual members of CQE that were named as Defendants were Jill
Cline, Thomas Tafoya, Loretta DeLong, Jeanelle Livingston, Catherine Collins, Rose
Martinez, Esther Winter, and Elizabeth Trujillo (collectively, Defendants). Cordova alleged
that the recall petition was brought without demonstrating probable cause of his misfeasance
or malfeasance in office and that CQE’s voluntary dismissal of the petition precluded any
judicial finding on the question of whether the petition was adequately supported as required

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under the statute. Cordova’s complaint specifically alleged that CQE and its members
engaged in a recall petition process that was supported by incompetent and back-dated
affidavits that CQE used to improperly accuse him of malfeasance and misfeasance in office.
Cordova’s complaint claimed that CQE brought the recall petition for purely political
reasons because they were afraid his planned actions would hold them accountable for their
own misdeeds, rather than because of misfeasance or malfeasance on his part. He stated that
the incompetent affidavits, together with the postponement of the hearing and the eventual
voluntary dismissal of the entire petition action, constituted an improper use of process in
a judicial proceeding that was illegitimately motivated by hopes of damaging him. Based
on these allegations, he maintained that he had been damaged and sought compensation
under theories of malicious abuse of process, civil conspiracy, and prima facie tort.

{5}      Defendants moved to dismiss the complaint under Rule 1-012(B)(6) NMRA for
failure to state a claim and, alternatively, sought dismissal and attorney fees under the Anti-
SLAPP statute. NMSA 1978, § 38-2-9.1 (2001). As an affirmative defense, Defendants
maintained that the recall petition was protected under the First Amendment of the United
States Constitution and New Mexico’s Anti-SLAPP statute. Cline and Tafoya also
counterclaimed against Cordova for malicious abuse of process.

{6}      The district court held a hearing on April 29, 2010, to consider Defendants’ motions
to dismiss and Cordova’s motion to dismiss the two counterclaims. On May 14, 2010, the
district court issued its order granting Defendants’ motions to dismiss. The court relied on
the Anti-SLAPP statute and the First Amendment to find that Defendants’ conduct in the
recall petition was protected and dismissed Cordova’s civil conspiracy and prima facie tort
claims for failure to adequately plead sufficient facts to establish either tort. The district
court did not address Cline’s and Tafoya’s counterclaims. The order also set rates for
attorney fees and permitted Defendants to submit requests for the fees as allowed under the
Anti-SLAPP statute. Section 38-2-9.1(B). Cordova now appeals.

II.    DISCUSSION

{7}    On appeal, Cordova argues that (1) the Anti-SLAPP statute does not apply to his suit
below, (2) his complaint properly stated a claim for malicious abuse of process, (3)
Defendants are not immune to the suit under the First Amendment, and (4) CQE did not have
standing to bring the recall because it was not a legally cognizable organization. Defendants
contest those issues and argue that Cordova’s appeal is not from a final judgment. We
address each issue in turn.

A.      The Anti-SLAPP Statute Does Not Apply

{8}      Cordova argues that his suit was improperly dismissed under the Anti-SLAPP statute.
 The Anti-SLAPP statute permits a defendant, who believes that he or she is being sued in
retaliation for certain protected forms of public speech and participation, to file an expedited
motion to dismiss. Section 38-2-9.1. We review the application of the Anti-SLAPP statute

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de novo. State v. Herrera, 2001-NMCA-007, ¶ 6, 130 N.M. 85, 18 P.3d 326 (stating that
“statutory construction and interpretation are questions of law reviewed de novo”).

{9}     The Anti-SLAPP statute is intended to save a defendant from incurring the expense
and inconvenience of defending a lawsuit that seeks to chill a defendant exercising his or her
constitutional rights. Frederick M. Rowe & Leo M. Romero, Resolving Land-Use Disputes
By Intimidation: SLAPP Suits in New Mexico, 32 N.M. L. Rev. 217, 227 (2002). The statute
states:

              Any action seeking money damages against a person for conduct or
       speech undertaken or made in connection with a public hearing or public
       meeting in a quasi-judicial proceeding before a tribunal or decision-making
       body of any political subdivision of the state is subject to a special motion to
       dismiss[.]

Section 38-2-9.1(A). The purpose of the Legislature in adopting the statute is codified at
NMSA 1978, Section 38-2-9.2 (2001), which states that its policy is to “protect the rights
of its citizens to participate in quasi-judicial proceedings before local and state governmental
tribunals” because “[b]aseless civil lawsuits . . . have been filed against persons for
exercising their right to petition and to participate in quasi-judicial proceedings.”

{10} “In interpreting statutes, we seek to give effect to the Legislature’s intent, and in
determining intent[,] we look to the language used and consider the statute’s history and
background.” Key v. Chrysler Motors Corp., 121 N.M. 764, 768-69, 918 P.2d 350, 354-55
(1996). When the language of a statute is clear and unambiguous, we will give effect to the
statute’s language and refrain from further interpretation. Sims v. Sims, 1996-NMSC-078,
¶ 17, 122 N.M. 618, 930 P.2d 153.

{11} The Anti-SLAPP statute protects citizen participation in a “public meeting in a quasi-
judicial proceeding.” Section 38-2-9.1(A). The statute defines “public meeting in a quasi-
judicial proceeding” as “any meeting established and held by a state or local governmental
entity, including without limitations, meetings or presentations before state, city, town[,] or
village councils, planning commissions, review boards[,] or commissions.” Section 38-2-
9.1(D). We must therefore determine if a recall petition and resulting statutory sufficiency
hearing before a district court constitute such participation.

{12} To begin the recall process, a petitioner collects signatures under the procedures of
Section 22-7-6. Pursuant to Article XII, Section 14 of the New Mexico Constitution, a
petition for a recall election must cite grounds of malfeasance, misfeasance, or violation of
the oath of office. The petition citing the specific charges in support of the recall, which
charges “shall constitute misfeasance in office, malfeasance in office[,] or violation of oath
of office[,]” is submitted to the county clerk. Section 22-7-8(C), (D). The clerk requests a
hearing before the district court to evaluate whether the petition alleges sufficient cause to
proceed with the recall. Sections 22-7-9(A)(2), -9.1(A), (B). At the sufficiency hearing, the

                                               4
court is charged with reviewing the signatures on the petition along with “affidavits
submitted by the petitioner setting forth specific facts in support of the charges.” Section 22-
7-9.1(C); Doña Ana Cnty. Clerk v. Martinez, 2005-NMSC-037, ¶ 11, 138 N.M. 575, 124
P.3d 210 (per curiam); see CAPS v. Bd. Members, 113 N.M. 729, 730, 832 P.2d 790, 791
(1992) (describing how petitions are evaluated before the district court).

{13} At the hearing, the district court evaluates the petition to determine whether the
petitioner stated a claim and assumes all facts pled in the petition to be true. Section 22-7-
9.1(C); Martinez, 2005-NMSC-037, ¶ 11 (holding that “the district court was not required
to weigh disputed issues of fact”). Under the CAPS rule, sufficient evidence of misfeasance
or malfeasance must be found to exist.

{14} Cordova based his suit on the problems he alleged with Defendants’ affidavits,
CQE’s standing, and voluntary dismissal, which all stem from the hearing. Under a plain
reading of the Anti-SLAPP statute, we conclude that a sufficiency hearing before a district
court for a recall petition is not a public meeting or quasi-judicial proceeding as defined by
the Anti-SLAPP statute. It is a judicial proceeding. We consequently hold that the Anti-
SLAPP statute does not apply and, therefore, the district court improperly dismissed
Cordova’s suit under the Anti-SLAPP statute and awarded attorney fees to Defendants.

B.     The Appeal is Not From a Final Judgment With Respect to Cline and Tafoya
       Due to Their Pending Counterclaims

{15} Cline and Tafoya argue that this Court does not have jurisdiction over this appeal
because the district court left Cline’s and Tafoya’s counterclaims unresolved. Cordova
argues that the Anti-SLAPP statute provides for an “expedited appeal” from a ruling on a
motion to dismiss that would include his appeal against all Defendants. We agree with Cline
and Tafoya.

{16} The district court’s order dismissed Cordova’s claims against all Defendants, but left
Cline’s and Tafoya’s counterclaims unresolved. See Khalsa v. Levinson, 1998-NMCA-110,
¶ 12, 125 N.M. 680, 964 P.2d 844 (stating that, in civil cases, this Court has jurisdiction over
final orders). Pursuant to Rule 1-054(B)(2) NMRA, the judgment is final for Defendants
who did not have counterclaims against Cordova. However, “[a]n order disposing of the
issues contained in the complaint but not the counterclaim is not a final judgment.” Watson
v. Blakely, 106 N.M. 687, 691, 748 P.2d 984, 988 (Ct. App. 1987), overruled on other
grounds by Kelly Inn No. 102, Inc. v. Kapnison, 113 N.M. 231, 824 P.2d 1033 (1992).

{17} Our decision regarding Cordova’s appeal applies only to those Defendants without
pending counterclaims, not Cline and Tafoya. “In multiple party suits, Rule [1-054(b)(2)
NMRA] authorizes a judgment adjudicating ‘all issues’ as to one or more, but fewer than all
parties.” Stotlar v. Hester, 92 N.M. 26, 27, 582 P.2d 403, 404 (Ct. App. 1978). “Such
judgment shall be a final one unless the court, in its discretion, expressly provides
otherwise.” Id. (internal quotation marks and citation omitted). Because all issues were

                                               5
adjudicated regarding the remaining Defendants, we consider it a final judgment for appeal
with respect to them despite the failure of Cordova’s argument that the Anti-SLAPP statute
provides grounds for interlocutory appeal.

C.     Cordova’s Complaint States a Claim for Malicious Abuse of Process

{18} We now address the district court’s determination that Cordova’s complaint failed
to state a claim for malicious abuse of process. A motion to dismiss for failure to state a
claim under Rule 1-012(B)(6) NMRA tests the legal sufficiency of the complaint, not the
facts that support it. Envtl. Improvement Div. of N.M. Health & Env’t Dep’t v. Aguayo, 99
N.M. 497, 499, 660 P.2d 587, 589 (1983). “Under Rule 1-012(B)(6), dismissal is proper
when the law does not support the claim under any set of facts subject to proof.” Wallis v.
Smith, 2001-NMCA-017, ¶ 6, 130 N.M. 214, 22 P.3d 682. “We review rulings on such
motions de novo, accepting all well-pleaded factual allegations as true and resolving all
doubts in favor of the sufficiency of the complaint.” Id. Although Tafoya’s motion to
dismiss included an affidavit, which would generally transform the motion into one for
summary judgment pursuant to Rule 1-012(C), we decline to treat it as a summary judgment
motion if “[i]t would be unfair . . . we would be affirming the judgment on a ground not
relied upon, or even pursued, below.” Dunn v. McFeeley, 1999-NMCA-084, ¶ 17, 127 N.M.
513, 984 P.2d 760.

{19} As a threshold matter, Defendants argue that Cordova’s complaint, in response to the
recall petition, violates their privilege to petition the courts under the First Amendment.
They rely here, as they did below, on the Noerr-Pennington doctrine, which grew out of the
antitrust arena and requires a higher standard to prove a sham lawsuit in light of the
protections of the First Amendment. The district court found this issue to be determinative
and dismissed the complaint not only under the Anti-SLAPP statute, but also under the First
Amendment. We do not agree that Defendants’ petition was shielded from Cordova’s suit
by the First Amendment.

{20} The New Mexico Supreme Court created the tort of malicious abuse of process to
ensure that parties abide by certain procedural boundaries once they initiate a proceeding.
See DeVaney v. Thriftway Mktg. Corp., 1998-NMSC-001, ¶¶ 15, 17, 124 N.M. 512, 953 P.2d
277 (describing the elements of the previous torts and creating the new tort), overruled on
other grounds by Durham v. Guest, 2009-NMSC-007, ¶ 18, 145 N.M. 694, 204 P.3d 19
(describing the creation of the tort); Fleetwood Retail Corp. of N.M. v. LeDoux, 2007-
NMSC-047, ¶ 12, 142 N.M. 150, 164 P.3d 31 (same). In DeVaney, the Court addressed the
fact that “[m]eaningful access to the courts is a right of fundamental importance to our
system of justice.” 1998-NMSC-001, ¶ 19. It noted the First Amendment’s implication and
determined that “we must construe the tort of malicious abuse of process narrowly in order
to protect the right of access to the courts.” Id. The DeVaney Court included a footnote
mentioning that “the importance of the right to petition . . . has caused the courts of some
states to apply the more stringent requirements of the Noerr-Pennington doctrine[.]” Id. n.1.
This footnote appears to be the only mention of the Noerr-Pennington doctrine in New

                                             6
Mexico law. We conclude that the Supreme Court was aware of the Noerr-Pennington line
of cases when creating the tort of malicious abuse of process and that it declined to apply the
doctrine because the new tort satisfied concerns about the right of access to the courts. As
an intermediate appellate court, we are bound by the Supreme Court’s holding on this issue
and, therefore, do not credit Defendants’ argument that the Noerr-Pennington doctrine’s
interpretation of the First Amendment protects them from a common-law malicious abuse
of process claim.

{21} As neither the Anti-SLAPP statute nor the First Amendment prevents Cordova from
bringing his suit for malicious abuse of process, we now examine the claim itself. The
elements of malicious abuse of process are “(1) the use of process in a judicial proceeding
that would be improper in the regular prosecution or defense of a claim or charge; (2) a
primary motive in the use of process to accomplish an illegitimate end; and (3) damages.”
Durham, 2009-NMSC-007, ¶ 29.

{22} The first element—an improper use of process—may be shown by “(1) filing a
complaint without probable cause[;] (2) an irregularity or impropriety suggesting extortion,
delay, or harassment”; or (3) other conduct formerly actionable under the tort of abuse of
process. Fleetwood Retail, 2007-NMSC-047, ¶ 12 (internal quotation marks and citation
omitted). A use of process is deemed to be irregular or improper if it (1) involves a
procedural irregularity or a misuse of procedural devices, such as “discovery, subpoenas, and
attachment[s]”; or (2) “indicates the wrongful use of proceedings, such as an extortion
attempt[.]” DeVaney, 1998-NMSC-001, ¶ 28 (listing examples of abuse of process (internal
quotation marks and citation omitted)).

{23} As we have already discussed, the hearing before the district court as part of the
recall petition was a judicial proceeding. Cordova alleged in his complaint that the act of
filing affidavits that did not comport with the requirements of Rule 1-056 NMRA was an
improper act in the regular prosecution of a claim. He alleged that the affidavits refer to
events that took place after their notarization dates and that this was an improper use of
process. He also claims that the affidavits, “on their face, are not competent, replete with
rumor and innuendo.” Cordova also claimed that the delay and eventual voluntary dismissal
of the charges of malfeasance brought in the petition was an improper use of process and that
Defendants brought the recall petition for an improper purpose.

{24} Cordova’s complaint raises enough doubts about the propriety of the affidavits and
Defendants’ actions to state a claim that Defendants misused procedural devices pursuant
to the definition in DeVaney, thereby, satisfying the first element of an abuse of process
claim. 1998-NMSC-001, ¶ 28. Cordova alleged that Defendants’ motives in filing the recall
petition were improper and were to avoid accountability for misdeeds. Cordova also alleges
that he has suffered damages. We take Cordova’s well-pleaded facts to be true. Wallis,
2001-NMCA-017, ¶ 6. He therefore stated a claim for malicious abuse of process. We
reverse the district court’s dismissal of the malicious abuse of process count and remand to
let that claim proceed.

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D.      CQE Had Standing to Bring a Recall Petition

{25} Cordova also sought declaratory judgment, claiming that CQE, as an unincorporated
association, lacked standing to bring the recall petition because it lacked the substantive right
to vote. Although it appears that he only sought the judgment in order to bolster his claim
that the recall was brought improperly, we do not assume that and, therefore, address the
issue. It is undisputed that CQE is an unincorporated association registered with the Taos
County Clerk, pursuant to NMSA 1978, Section 53-10-1 (1937). The Act explicitly defines
a petitioner as a “person, group[,] or organization initiating the petition[.]” Section 22-7-
6(D)(4). Several New Mexico cases indicate that voters have created organizations to effect
recall elections. See CAPS, 113 N.M. at 729, 832 P.2d at 790 (stating simply that the
appellants submitted recall petitions pursuant to the Act); Martinez, 2005-NMSC-037, ¶ 1
n.1 (stating that the petitioning group was “RECALL,” which stood for “Rectify Educational
Concerns about Lousy Leaders” (internal quotation marks omitted)); State ex rel. Citizens
for Quality Educ. v. Gallagher, 102 N.M. 516, 517, 697 P.2d 935, 936 (1985) (referring to
“petitioners and other qualified electors”). New Mexico laws allow an unincorporated
association to sue or be sued in its common name for the purpose of enforcing for or against
it any substantive right. NMSA 1978, § 53-10-6(A), (B) (1959).

{26} In New Mexico, an organization may have standing if “(a) its members would
otherwise have standing to sue in their own right, (b) the interests it seeks to protect are
germane to the organization’s purpose, and (c) neither the claim asserted nor the relief
requested requires the participation of individual members in the lawsuit.” ACLU of N.M.
v. City of Albuquerque, 2008-NMSC-045, ¶ 30, 144 N.M. 471, 188 P.3d 1222. The New
Mexico Constitution provides that elected local school board members are subject to recall
“by the voters of the school district from which elected.” N.M. Const. art. XII, § 14.

{27} It is undisputed that Defendants who comprised CQE are residents of Taos County.
Because they are residents and may vote in Taos County, CQE members would have
standing to bring the recall petition in their own right. Therefore, we affirm the district
court’s dismissal of Cordova’s claim for declaratory judgment.

E.      Cordova’s Other Claims Were Unsupported on Appeal

{28} The district court dismissed Cordova’s claims for prima facie tort and civil
conspiracy for failure to plead sufficient facts. Although a heading in the brief-in-chief
states that the complaint stated a cause of action for the prima facie tort claim, Cordova fails
to support the statement with authority or analysis. Where a party cites no authority to
support an argument, we may assume no such authority exists. In re Adoption of Doe, 100
N.M. 764, 765, 676 P.2d 1329, 1330 (1984). This Court will not consider propositions that
are unsupported by citation to authority. ITT Educ. Servs., Inc. v. Taxation & Revenue
Dep’t, 1998-NMCA-078, ¶ 10, 125 N.M. 244, 959 P.2d 969. Cordova’s brief-in-chief only
mentions the concept of civil conspiracy in his argument for why he sued Defendants
individually. For the same reasons regarding the lack of authority or argument of a claim,

                                               8
we consider neither Cordova’s civil conspiracy nor prima facie tort claim on appeal.

III.   CONCLUSION

{29} The Anti-SLAPP statute does not apply to a determination of probable cause by a
district court in a recall petition process because it is a judicial proceeding and not a quasi-
judicial process covered by the statute. We reverse the award of attorney fees under the
statute. We also reverse the district court’s dismissal of Cordova’s malicious abuse of
process suit because his complaint properly stated a claim, and Defendants are not shielded
by the First Amendment. We affirm dismissal of the civil conspiracy, prima facie tort, and
declaratory judgment counts.

{30}   IT IS SO ORDERED.

                                               ____________________________________
                                               RODERICK T. KENNEDY, Chief Judge

WE CONCUR:

____________________________________
JONATHAN B. SUTIN, Judge

____________________________________
MICHAEL E. VIGIL, Judge




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