                                     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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