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Delucchi v. Songer

Supreme Court of Nevada

June 29, 2017

RAYMOND DELUCCHI; AND TOMMY HOLLIS, Appellants,
v.
PAT SONGER, Respondent.

         Appeal from a final judgment granting a special motion to dismiss in a tort action. Fifth Judicial District Court, Nye County; Kimberly A. Wanker, Judge.

          Law Office of Daniel Marks and Adam Levine and Daniel Marks, Las Vegas, for Appellants.

          Lipson, Neilson, Cole, Seltzer & Garin, P.C., and Joseph Garin and Siria L. Gutierrez, Las Vegas, for Respondent.

         BEFORE THE COURT EN BANC.

          OPINION

          HARDESTY, J.

         In this appeal, we address whether the 2013 amendments to Nevada's anti-SLAPP statutes clarified, rather than substantively altered, existing law, such that they may apply retroactively in resolving a special motion to dismiss a defamation action grounded on a pre-2013 communication. Because portions of the applicable 2013 amendments (defining protected conduct) are consistent with a reasonable interpretation of the prior anti-SLAPP enactment, and those portions resolved an ambiguity that existed in the prior enactment, they are clarifying and thus apply retroactively. However, because the remaining applicable portions of the 2013 amendments (changing the summary judgment standard of review to clear and convincing) effected a substantive change in the prior anti-SLAPP legislation, those portions are not applicable retroactively. Therefore, although we conclude that in resolving respondent's special motion to dismiss, the district court properly applied the 2013 clarifying portions of the amendments in determining that respondent's communication to the town of Pahrump is potentially protected, the district court erred in applying the remaining substantive portions of the 2013 amendments retroactively in determining that appellants failed to meet the high burden set forth in the 2013 amendments of establishing a probability of prevailing on their claims. We thus reverse and remand.

         FACTS AND PROCEDURAL HISTORY

         In May 2012, Pahrump Valley Fire and Rescue Service (PVFRS) paramedics Raymond Delucchi and Tommy Hollis were involved in an incident on Highway 160 (the incident). Delucchi and Hollis were driving their ambulance to Pahrump when they were flagged down by passing motorists later identified as James and Brittnie Choyce. The Choyces stopped Delucchi and Hollis because Brittnie had miscarried and James requested transport to a hospital in Las Vegas. For reasons that are still in dispute, Delucchi and Hollis never transported Brittnie to Las Vegas or any other hospital. Following the incident, PVFRS Lieutenant Steve Moody and Fire Chief Scott Lewis received a telephone complaint from the Choyce family regarding the incident and began an internal investigation.

         In June 2012, the town of Pahrump (the Town), through its outside counsel, the law firm of Erickson, Thorpe, & Swainston, Ltd. (ETS), retained Pat Songer, Director of Emergency Services at Humboldt General Hospital, to conduct a third-party investigation of the incident. During his investigation, Songer reviewed notes of the telephone complaint from the Choyce family, reviewed notes of interviews conducted by Chief Lewis and Lt. Moody, conducted interviews, and collected other evidence. Based on his investigation, Songer prepared a report (the Songer Report) including his findings, conclusions, and recommendations to the Town regarding Delucchi and Hollis. In his report, Songer concluded that Delucchi and Hollis violated several sections of the Town's Personnel Policies, the PVFRS Rules and Regulations, and the PVFRS Emergency Medical Service Protocols. Based on those findings, Songer recommended that Delucchi and Hollis be terminated. On September 18, 2012, Delucchi and Hollis were notified in writing of the Town's intent to terminate their employment based on the findings within the Songer Report.

         Delucchi, Hollis, and their union challenged the termination at a four-day arbitration hearing pursuant to their collective bargaining agreement. After the hearing, the arbitrator issued an opinion and award finding that there was not just cause for Delucchi's and Hollis's terminations and ordering reinstatement. Based on testimony at the hearing, and upon review of the evidence presented, the arbitrator concluded that the Songer Report lacked reliability, contained misrepresentations, and was not an adequate basis for termination.

         In June 2014, Delucchi and Hollis filed a complaint in district court against Songer and ETS[1] alleging defamation and intentional infliction of emotional distress (IIED) based on the investigation commissioned by the Town and the Songer Report. Following Delucchi's and Hollis's complaint, Songer filed a special motion to dismiss pursuant to Nevada's anti-SLAPP statutes. In opposition to Songer's special motion, Delucchi and Hollis argued that (1) the Songer Report was unprotected conduct under Nevada's anti-SLAPP statutes; (2) under the pre-2013 version of the anti-SLAPP statute, Delucchi and Hollis demonstrated a genuine issue of material fact to defeat the motion; and (3) while the pre-2013 version should apply to Songer's 2012 conduct, they could nevertheless demonstrate by clear and convincing evidence a probability of prevailing on their claims.

         The district court interpreted the 2013 amendments to Nevada's anti-SLAPP statutes as clarifying the legislative intent, and it thus applied the 2013 statutory amendments retroactively in deciding Songer's special motion to dismiss. In analyzing the special motion to dismiss under the 2013 version of NRS 41.660(3)(a), the district court recognized that the 2013 statutes required a two-step analysis, which requires the defendant to demonstrate that the communication was protected, and if so demonstrated, the burden shifts to the plaintiffs to show a probability of prevailing on their claims. Under that framework, the district court found that Songer demonstrated by a preponderance of the evidence that his report was protected good faith communication in furtherance of the right to free speech on an issue of public concern under Nevada's anti-SLAPP statutes because (1) it was a communication of information to Pahrump regarding a matter reasonably of concern to Pahrump based on the incident, and (2) it was a written statement made in direct connection with an issue under consideration by Pahrump authorized by law in the disciplinary actions against Delucchi and Hollis. See 2013 Nev. Stat., ch. 176, §§ 1 and 3. Moving to the second step, the district court found that Delucchi and Hollis failed to establish a probability of prevailing on the defamation and IIED claims by clear and convincing evidence such that the special motion could be defeated. See id. § 3(3)(b), 623-24.[2] Based on these findings, the district court granted Songer's special motion to dismiss. This appeal followed.

         DISCUSSION

         Nevada's anti-SLAPP statutes, codified in NRS Chapter 41, were amended in 2013 and became effective on October 1, 2013. See 2013 Nev. Stat., ch. 176, §§ 1-4. The incident giving rise to this appeal occurred in May 2012, the Town retained Songer in June 2012, and Delucchi and Hollis were notified of the Town's intent to terminate in September 2012. Thus, all of the conduct relevant to our anti-SLAPP analysis occurred in the 2012 calendar year. However, the district court retroactively applied the 2013 amendments as a whole in deciding whether to grant Songer's special motion to dismiss based on its determination that the amendments were meant to clarify the legislative intent behind Nevada's anti-SLAPP statutes. In resolving this appeal, we must first determine whether the 2013 amendments apply retroactively or whether the pre-2013 version of Nevada's anti-SLAPP statutes applied to the facts of this case. Specific to the issues presented in this appeal are the amendments to NRS 41.637 and NRS 41.660. After determining that portions of the 2013 amendments applied to this case, we then address whether the communication at issue is protected under the applicable versions of Nevada's anti-SLAPP statutes.

         Legislative amendments to Nevada's anti-SLAPP statutes

         When the Legislature amends a statute, "[t]here is a general presumption in favor of prospective application." See McKellar v. McKellar, 110 Nev. 200, 203, 871 P.2d 296, 298 (1994). When an amendment clarifies, rather than substantively changes a prior statute, the amendment has retroactive effect. Fernandez v. Fernandez, 126 Nev. 28, 35 n.6, 222 P.3d 1031, 1035 n.6 (2010); see also In re Estate of Thomas, 116 Nev. 492, 495, 998 P.2d 560, 562 (2000) (explaining that "[w]here a former statute is amended, or a doubtful interpretation of a former statute rendered certain by subsequent legislation, it has been held that such amendment is persuasive evidence of what the Legislature intended by the first statute" (alteration in original) (quoting Sheriff, Washoe Cty. v. Smith, 91 Nev. 729, 734, 542 P.2d 440, 443 (1975)); 1A Norman J. Singer & J.D. Shambie Singer, Sutherland Statutory Construction § 22.34 (7th ed. 2009) ("Where an amendment clarifies existing law but does not contravene previous constructions of the law, the amendment may. be deemed curative, remedial and retroactive, especially where the amendment is enacted during a controversy over the meaning of the law.").

         The pre-2013 version of NRS 41.637 provided:

Good faith communication in furtherance of the right to ...

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