   //F.I L E
        IN CLERICS OFFICE
 11J1M1E COURT, STATE OF W/\SHINGTQN
      DATE    JlJl 2 3 2015
7/lc~_~l}. (},
          CHIEF       TICE.   I                                Ronca~ 'R. Carpenter
                                                               Supre:flll Court Clerk


      IN THE SUPREME COURT OF THE STATE OF WASHINGTON



    SCOTT AKRIE, an individual, and
    VOLCAN GROUP, INC., d/b/a
    NETLOGIX, a California corporation,

                                       Petitioners,
                                                       NO. 89820-1
                       v.

    JAMES GRANT and JANE DOE GRANT,
    individually and the marital community
    composed thereof, if any; KASSANDRA                ENBANC
    KENNAN and JOHN DOE KENNAN,
    individually and the marital community
    composed thereof, if any; DAVIS WRIGHT
    TREMAINE, LLP, a Washington company;
    SEATTLE DEPOSITION REPORTERS,                      Filed      JUL 2 3 2015
    LLC, a Washington company; T-MOBILE
    USA, INC., a Delaware corporation,

                                       Respondents.



             PER CURIAM-Scott Akrie and Volcan Group Inc., d/b/a NetLogix, sued

   James Grant, Kassandra Kennan, Davis Wright Tremaine LLP, Seattle Deposition

   Reporters LLC, and T -Mobile USA Inc. Plaintiffs alleged that defendants twice

   transcribed Jason Dillon's phone conversation without his permission and that in
Akrie, et al. v. Grant, et al., 89820-1




doing so they violated the privacy act, ch. 9. 73 RCW. Dillon is not a party in this

case. 1

          Defendants filed a special motion to strike the claims under the Washington

Act Limiting Strategic Lawsuits Against Public Participation (anti-SLAPP statute),

RCW 4.24.525, and a motion to dismiss pursuant to CR 12(b)( 6). The superior court

granted both motions and dismissed the claims with prejudice. Pursuant to the anti-

SLAPP statute, RCW 4.24.525(6)(a), the superior court entered judgment ordering

plaintiffs to pay defendants a statutory penalty of $10,000.00, attorney fees of

$20,000.00, andlitigation costs of$137.45.

          Plaintiffs appealed, and defendants crossappealed. Plaintiffs then withdrew

their appeal and so defendants were redesignated as appellants. Defendants argued

on appeal that under the anti-SLAPP statute, each defendant is entitled to $10,000

in SLAPP penalties, for a total of $50,000, rather than the total of $10,000 the

superior court awarded. The Court of Appeals agreed. It reversed the superior court

solely on the issue of statutory damages under the anti -SLAPP statute and remanded

with instructions to enter judgment for $50,000 instead of $10,000 in statutory

damages. Akrie v. Grant, 178 Wn. App. 506, 515, 315 P.3d 567 (2013).

          We granted plaintiffs' petition for review and heard oral arguments on

September 30, 2014.          We later stayed this case, as well as Dillon v. Seattle

Deposition Reporters, LLC (No. 89961-4), pending Davis v. Cox, a case involving

          1
        The same incidents resulted in another lawsuit, Dillon v. Seattle Deposition
Reporters, LLC (No. 89961-4), where Dillon is the plaintiff.

                                           -2-
Akrie, et al. v. Grant, et al., 89820-1




the constitutionality of the anti-SLAPP statute. No. 90233-0, 2015 WL 3413375

(Wash. May 28, 2015). On May 28, 2015, the court decided Davis v. Cox, holding

the anti-SLAPP statute violates the right to trial by jury under article I, section 21 of
the Washington Constitution and is invalid. Accordingly, the stay of this case is

lifted.

          In light of our decision in Davis, it is unnecessary to decide whether the proper

amount of statutory damages under the anti-SLAPP statute in this case was $10,000

or $50,000 because the statute is unconstitutional and thus no longer provides

grounds for any award of damages.

          The question remains, however, whether plaintiffs, who did not appeal the

$10,000 statutory damages award, may benefit from our decision in Davis. The

general rule is that an "appellate court will grant a respondent affirmative relief by

modifying the decision which is the subject matter of the review only . . . if the

respondent also seeks review of the decision by the timely filing of a notice of appeal

or a notice of discretionary review." RAP 2.4(a)(1). Because plaintiffs withdrew

their appeal, the decision that is the subject matter of the review cannot be modified

under the general rule. The exception to the general rule is that an appellate court

may grant a respondent affirmative relief "if demanded by the necessities of the

 case." RAP 2.4(a)(2).

          We conclude that the necessities of this case justify granting plaintiffs the

 affirmative relief of vacating the superior court's award of statutory penalties,



                                             - 3-
Akrie, et al. v. Grant, et al., 89820-1




attorney fees, and costs under the anti -SLAPP statute. This case remained pending

at the time we invalidated the anti-SLAPP statute, and thus basic fairness demands

that we not sustain a penalty imposed pursuant to a statute we have held

unconstitutional.

       The Court of Appeals is reversed. The case is remanded to the superior court

with instructions to vacate any award of statutory damages, attorney fees, and costs

under the anti-SLAPP statute. The superior court's judgment dismissing plaintiffs'

claim with prejudice pursuant to defendants' motion under CR 12(b)( 6) remains

undisturbed and is final.




                                          -4-
