STATE OF NEW MEXICO THOMAS MCGILL v. JOHN BASSETT JOHN BASSETT (2026)

OPINION

{1} Defendants Josephine Bassett ¹ and Eugene Bassett filed this appeal pursuant to NMSA 1978, Section 38-2-9.1 (2001), the New Mexico statute prohibiting strategic litigation against public participation (Anti-SLAPP statute). Defendants argue the district court erred by ruling that the Anti-SLAPP statute does not apply and denying their motions for summary judgment.  ² Because we conclude Defendants have not identified any protected “conduct or speech undertaken or made in connection with a public hearing or public meeting,” see § 38-2-9.1(A), we dismiss Defendants’ appeal as premature.

BACKGROUND

{2} Defendants’ appeal stems from a lawsuit filed in February 2020 by three residents of Edgewood against the then-Mayor of the Town of Edgewood, John Bassett, along with the Governing Body for the Town of Edgewood and Defendants Josephine Bassett and Eugene Bassett, who are the mother and brother, respectively, of John Bassett. The initial complaint alleged claims for quo warranto, declaratory judgment, writ of mandamus, and fraud, and was later amended to include an unjust enrichment claim against Defendants and a qui tam claim for violation of the state's Fraud Against Taxpayers Act (FATA), NMSA 1978, §§ 44-9-1 to -14 (2007, as amended through 2015), against John Bassett and Josephine Bassett. Upon the entry of a district court order for partial summary and default judgment in the action, John Bassett was removed from office in November 2020. Plaintiffs then voluntarily dismissed Defendants from the action in February 2022.

{3} However, in February 2023, this Court reversed the district court's order on the basis that the district court lacked personal jurisdiction over John Bassett and remanded the case for further proceedings. See State ex rel. McGill v. Bassett, 2023-NMCA-033, 528 P.3d 739. Upon remand and following a change in the Town's leadership, the Town became an intervening plaintiff in the action and filed a complaint that included a claim for unjust enrichment against Defendants Josephine Bassett and Eugene Bassett. The Town's complaint also included a FATA claim against John Bassett and Josephine Bassett. The Town acknowledged John Bassett as the main actor in the alleged fraud and later stipulated to the dismissal of that claim as against Josephine. As a result, the Town's only remaining claim against Josephine Bassett and Eugene Bassett—which sits at the center of this appeal—is an unjust enrichment claim relating to the Town's installation of a sewer collection line extension in 2018-19 servicing properties owned by Defendants.

{4} The sewer line extension was installed near the northeast quadrant of the Interstate 40 and N.M. State Road 344 interchange and runs through property owned by Defendants. At a public meeting held on June 20, 2018, the town council voted 3-to-1 to approve construction of Phase 1 of the sewer line extension, which was referred to at the time as the “sewer line construction on Church, Cactus, and Main,” in reference to the roads located north, northeast, and east of the northeast quadrant of the I-40/NM-344 interchange. Then-Mayor John Bassett was present at the meeting but did not participate in the vote. Neither Josephine nor Eugene Bassett claim to have been in attendance at the June 20, 2018, meeting. The Town's complaint asserted the following factual allegations to support its unjust enrichment claim against Defendants:

Defendants Josephine, Eugene and John Bassett are property owners along with the Bassett Trust of properties with the Town of Edgewood[,] which would benefit significantly if sewer lines were extended to some or all of their properties by opening up development possibilities.

In around 2013, the Bassetts became aware of the Town's efforts at expanding the sewer system and began their own efforts to have the Town locate the sewer lines so that they benefited Bassett property.

In 2016, [John] Bassett became the mayor and began efforts to manipulate the Town process so that Bassett property could benefit from the sewer line extensions.

[T]o aid in the effort to direct the sewer lines to Bassett property, Josephine Bassett executed some 5 sewer line easements across Bassett property in favor of the Town prepared by Smith Engineering [at] Town expense. These easements were intended to accommodate sewer lines that would service Bassett property.

[A]t Town expense, sewer lines were installed at a time and place not authorized by the Town[.] Thus, at Town expense and as a result of [John] Bassett's fraud, deceit and misrepresentations, [John] Bassett was able [to] maneuver[ ] the Town process for the financial benefit of himself, Josephine Bassett, Eugene Bassett and the Bassett Trust.

After construction it was realized that Phase 1 sewer lines were placed in the Bassett easements so that the lines were inside of Bassett property and doubled the development capacity for the property. Further, the Town lost the benefit of having the lines within a road right-of-way[,] which would provide greater public access.

The foregoing are the only allegations in the complaint against Josephine or Eugene Bassett relating to the location and installation of the sewer line extension.

{5} In response to the Town's complaint, Josephine and Eugene each filed a motion for summary judgment in which they raised the New Mexico Anti-SLAPP statute. Defendants argued that the unjust enrichment claim should be dismissed under the Anti-SLAPP statute because they were “being sued for constitutionally protected speech and conduct,” which they “undertook in relation, or response, to the Edgewood town council meeting on June 20, 2018”—the meeting at which the council voted to approve the 2018-19 sewer line extension.

{6} At the hearing on the motions, the Town argued that it sued Defendants Josephine and Eugene Bassett for unjust enrichment “because their brother or son manipulated the process as relates to sewer line priority, funding, and location” to benefit Bassett property. The Town suggested that Defendants received a benefit from having access to public sewer lines because they planned to develop the property, and “it's a matter of common sense that if you have access to [a] public sewer, you're going to be benefitted much more than having to ․ dig septic systems, particularly if you're going to do a major development.” The Town alleged that it had limited funding for sewer line development, and the town council created location priorities. According to the Town, John overrode those priorities to have the sewer line moved south through Bassett property to add additional sewer taps for the property. The Town explained that it brought a claim for unjust enrichment to recover its limited funds, and included Josephine, Eugene, and the Bassett trusts and limited liability companies as parties because each was presumably a beneficiary of John Bassett's manipulation—though, since Defendants’ motions were filed before discovery, the Town indicated it had yet to confirm who owned the benefitted properties and would have liked to have gotten that information through discovery before responding to the motions.

{7} Following the hearing, the district court denied Defendants’ motions. The court found that the Anti-SLAPP statute was inapplicable because the Town's claim “is an equitable claim for [u]njust [e]nrichment relating to the placement of the sewer line and does not relate to any claim for damages resulting from actions taken by Josephine Bassett or Eugene Bassett at any [c]ouncil meeting.” Defendants then filed this appeal, seeking an expedited interlocutory review under the Anti-SLAPP statute. See § 38-2-9.1(C).

DISCUSSION

{8} On appeal, Defendants argue the district court erred in ruling that the Anti-SLAPP statute was inapplicable and in denying their motions for summary judgment. “[B]efore we reach the merits of Defendants’ appeal, we must determine whether [Defendants engaged in conduct or speech that] fall[s] within the procedural protections of the Anti-SLAPP statute granting any party the right to an expedited appeal from a trial court order on a special motion.” Chandler v. Advance N.M. Now PAC, 2021-NMCA-017, ¶ 6, 488 P.3d 691 (alterations, omission, internal quotation marks, and citation omitted); § 38-2-9.1(C). If the claims do not fall within the purview of the Anti-SLAPP statute, then this Court does not have jurisdiction to consider the merits of the district court's ruling. See Chandler, 2021-NMCA-017, ¶ 20; see also Ferebee v. Hume, 2021-NMCA-012, ¶¶ 7, 28, 485 P.3d 778 (holding that the defendants were not entitled to avail themselves of the expedited appeal right provided by Section 38-2-9.1(C), and the appeal was therefore premature because the order appealed from was otherwise nonfinal). “The question of jurisdiction is a controlling consideration that must be resolved before going further.” Ferebee, 2021-NMCA-012, ¶ 7 (internal quotation marks, and citation omitted). “We review jurisdictional questions de novo.” Id. (internal quotation marks and citation omitted).

{9} We begin our review of the jurisdictional question with an overview of the Anti-SLAPP statute before turning to Defendants’ arguments about why it should apply in this case. “The Legislature enacted the Anti-SLAPP statute with the policy goal of protecting its citizens from lawsuits in retaliation for exercising their right to petition and to participate in quasi-judicial proceedings.” Cordova v. Cline, 2017-NMSC-020, ¶ 19, 396 P.3d 159; NMSA 1978, § 38-2-9.2 (2001). To accomplish this goal, “[t]he Anti-SLAPP statute provides certain procedural protections to persons who engage in conduct or speech made in connection with specified public hearings or public meetings.” Chandler, 2021-NMCA-017, ¶ 7; § 38-2-9.1(A)-(C). Those protections include an expedited ruling on special motions, costs and attorney fees incurred in pursuing the dismissal, and a right to an expedited interlocutory appeal:

A. 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, motion for judgment on the pleadings, or motion for summary judgment that shall be considered by the court on a priority or expedited basis to ensure the early consideration of the issues raised by the motion and to prevent the unnecessary expense of litigation.

B. If the rights afforded by this section are raised as an affirmative defense and if a court grants a motion to dismiss, a motion for judgment on the pleadings or a motion for summary judgment filed within ninety days of the filing of the moving party's answer, the court shall award reasonable attorney fees and costs incurred by the moving party in defending the action. If the court finds that a special motion to dismiss or motion for summary judgment is frivolous or solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney fees to the party prevailing on the motion.

C. Any party shall have the right to an expedited appeal from a trial court order on the special motions described in Subsection B of this section or from a trial court's failure to rule on the motion on an expedited basis.

Section 38-2-9.1(A)-(C) (emphasis added).

{10} Because the Anti-SLAPP statute protects petitioning “conduct or speech undertaken or made in connection with a public hearing or public meeting,” see § 38-2-9.1(A), the starting point for our review is to “identify the challenged activities of the target of the SLAPP suit in relation to their First Amendment protections.” Cordova, 2017-NMSC-020, ¶ 18; see also Chandler, 2021-NMCA-017, ¶ 12 (observing that Section 32-8-9.1(A) protects “all activities related to the public hearing or public meeting, even if they do not occur in the hearings or meetings themselves” (internal quotation marks and citation omitted)). Then, to determine whether the conduct or speech “is of the type the Legislature intended to protect with the right to an expedited appeal when it passed the Anti-SLAPP statute, we consider whether Defendants’ conduct or speech was ‘in connection with’ any of the proceedings they identify for purposes of our Anti-SLAPP statute.” Chandler, 2021-NMCA-017, ¶ 11 (quoting § 38-2-9.1(A)). “[T]o fall under the ‘in connection with’ definition of petitioning under the Anti-SLAPP statute, a communication must be made to influence, inform, or at the very least, reach governmental bodies—either directly or indirectly.” Chandler, 2021-NMCA-017, ¶ 14 (alterations, internal quotation marks, and citation omitted). “The key requirement of this definition of petitioning is the establishment of a plausible nexus between the statement and the governmental proceeding.” Id. (internal quotation marks and citation omitted).

{11} Turning to the activities Defendants claim are challenged by the suit, Defendants argue that “Josephine and Eugene both petitioned the Town of Edgewood to extend sewer lines to an area of town that could service their properties.” Defendants rely on the following conduct, which they contend is “in connection with” the June 20, 2018 public meeting where the Edgewood town council voted to approve construction of the 2018-19 sewer line extension:

(1) a November 19, 2007 joint letter to the Town of Edgewood signed by Josephine Bassett and a neighbor seeking access to municipal sewer lines for their properties and pledging to grant sewer line easements in return for access

(2) Josephine and Eugene Bassett's signatures on a citizens’ petition presented to the Town in 2014, urging the Town to seek funding for the extension of municipal sewer lines to the northeast quadrant of the I-40/NM-344 interchange and Josephine Bassett's signature on a similar citizens’ petition presented to the Town in 2016;

(3) Eugene Bassett's attendance at a 2014 town council meeting to advocate in support of the sewer-line extension;

(4) Josephine Bassett's communications with the staff and engineers for the Town between 2017 and 2018 regarding municipal sewer line easements across her property;

(5) Josephine Bassett's donation of temporary and permanent easements across her property to the Town in 2018; and

(6) Josephine and Eugene Bassett's familial association with former Mayor John Bassett.

Our task is to determine whether there is a link between these activities and the June 20, 2018 public meeting. See Chandler, 2021-NMCA-017, ¶ 16.

{12} The first three actions involve petitioning conduct that occurred many years before the June 20, 2018 meeting, and “[w]e see no indication that [this] conduct ․ was intended to influence, inform, or reach” the Town council in connection with the June 20, 2018 meeting. See id. First, though Josephine cosigned a letter to the Town on November 19, 2007, requesting sewer line access for properties owned by her and a neighbor and offering to grant utility easements in return for access, Defendants do not argue how this conduct related in any way to the public meeting that occurred over a decade later. There is no indication that this letter initiated the June 20, 2018 public meeting, cf. Cordova, 2017-NMSC-020, ¶ 21, and Defendants have not asserted that this letter was intended to directly or indirectly influence, inform, or reach the Town with respect to the vote that occurred at a public meeting ten years later. See Chandler, 2021-NMCA-017, ¶ 14. Second, Josephine and Eugene each signed citizens’ petitions in 2014 urging the Town to seek funding for sewer line extensions to the northeast quadrant near the I-40/NM-344 interchange, and Josephine also signed a similar citizens’ petition in 2016. But, as of the June 20, 2018 meeting, the Town had already sought and obtained funding for the wastewater and sewer line extensions and was in the process of getting state environmental agency approval of bids for the construction, and thus we can discern no “link or association” between these petitions and the June 20, 2018 public hearing. See id. ¶ 12 (“The plain language of the statute tells us that the conduct or speech at issue must be linked to or associated with ‘a public hearing or public meeting in a quasi-judicial proceeding’ in order to be ‘in connection with’ those proceedings.” (quoting § 38-2-9.1(A))). Third, while Defendant Eugene Bassett attended an August 2014 town council meeting at which the subject of Edgewood's wastewater system was discussed, Defendants do not explain how this conduct can be said to relate to the June 20, 2018, public meeting. See Chandler, 2021-NMCA-017, ¶ 14. Consequently, while these actions may well be petitioning activity, we cannot conclude that they were undertaken “in connection with” the June 20, 2018, meeting.

{13} Likewise, Defendants have not shown how the fourth and fifth activities, both of which relate to easements, constitute petitioning conduct or speech made in connection with the June 20, 2018 meeting. Defendants alleged that Josephine was approached by engineers with a request for sewer line easements in 2017 and, in response, she granted the easements as a donation to public use. Then, in January 2018, Josephine again donated an easement after receiving a letter from the Town requesting the easement. Defendants argue that the easements constitute political speech and “the First Amendment's protection extends to Josephine's generous donation of public utility easements.” But this Court has previously held that “New Mexico's Anti-SLAPP statute does not expressly apply to the exercise of free speech,” but rather, only to “petitioning, made for the purpose of directly or indirectly influencing, informing, or reaching governmental bodies.” See id. ¶ 19; see also Cordova, 2017-NMSC-020, ¶ 19 (explaining that the purpose of the Anti-SLAPP statute is to protect citizens in exercising their right to petition and to participate in quasi-judicial proceedings and public hearings). Like in Chandler, Defendants have characterized their conduct not as petitioning, “but as an exercise of constitutionally protected free speech.” See Chandler, 2021-NMCA-017, ¶ 19. As with Chandler, we conclude that the Anti-SLAPP statute does not apply to such conduct. Id.

{14} The sixth and final “activity” relied on by Defendants is their familial association with former-Mayor John Bassett. Defendants argue their association is protected by the First Amendment and federal case law establishing the right of association. See N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. 886, 918-19 (1982) (“The First Amendment ․ restricts the ability of the State to impose liability on an individual solely because of [one's] association with another.”). However, just as with the general exercise of free speech discussed above, New Mexico's Anti-SLAPP statute does not expressly apply to the right of association, and “we decline to add such language into the statute.” See Chandler, 2021-NMCA-017, ¶ 19; see also Cordova, 2017-NMSC-020, ¶ 19.

{15} For all of these reasons, we conclude that none of the conduct or speech identified by Defendants can be said to have been “undertaken or made in connection with” the June 20, 2018 public meeting. Section 38-2-9.1(A). “As Defendants’ conduct or speech does not fall within the protections of the Anti-SLAPP statute, we do not have jurisdiction to address the district court's ruling” on the merits of Plaintiffs’ motions for summary judgment. See Chandler, 2021-NMCA-017, ¶ 20. {16} As a final matter, we pause to clarify that although we affirm the district court's conclusion that the Anti-SLAPP statute does not apply, the district court's framing of its conclusion—that the complaint does not “relate to any claim for damages resulting from actions taken by [Defendants] at any [c]ouncil meeting”—appears to conflict with Cordova and Chandler, which made clear that the Anti-SLAPP statute “includes all activities related to the public hearing or public meeting, even if they do not occur in the hearings or meetings themselves.” Chandler, 2021-NMCA-017, ¶ 12 (emphasis added) (internal quotation marks and citation omitted); Cordova, 2017-NMSC-020, ¶¶ 21-22.³ Even so, our review is de novo and, having reviewed the conduct identified by Defendants based on the standard articulated in Cordova and Chandler, we have independently concluded that the Anti-SLAPP statute is inapplicable. See Strata Prod. Co. v. Mercury Expl. Co., 1996-NMSC-016, ¶ 12, 121 N.M. 622, 916 P.2d 822 (“We are not bound, however, by the trial court's legal conclusions and may independently draw our own conclusions of law on appeal.”); C.R. Anthony Co. v. Loretto Mall Partners, 1991-NMSC-070, ¶ 18, 112 N.M. 504, 817 P.2d 238 (stating that “an appellate court need not defer to the trial court's conclusions of law”).

CONCLUSION

{17} For the above reasons, we dismiss Defendants’ appeal of the district court's denial of their motions for summary judgment as premature, and remand to the district court for further proceedings.

{18} IT IS SO ORDERED.

{19} I concur in the result reached by the majority opinion. I write separately, however, because I believe the majority's rationale improperly limits the conduct and speech protected by New Mexico's Anti-SLAPP statute, as established by Cordova, 2017-NMSC-020, ¶ 19. I would hold, instead, that Defendants failed to show, as a matter of undisputed material fact, that their protected activity was the target of the Town's unjust enrichment action.

{20} The majority acknowledges that Defendants may have engaged in “petitioning conduct” by sending letters, signing petitions, and attending a public hearing in an effort to convince the Town to extend its sewer line to and through Defendants’ properties. Maj. op. ¶ 12. But the majority says it cannot conclude the conduct was done “in connection with” the public town council meeting held on June 20, 2018, because it “occurred many years before” and “Defendants do not explain how this conduct can be said to relate to [it].” Maj. op. ¶ 12. Accordingly, the majority concludes that “Defendants’ conduct or speech does not fall within the protections of the Anti-SLAPP statute.” Maj. op. ¶ 15. This reasoning is inconsistent with our precedent and sets too high a bar for litigants seeking the protection of the Anti-SLAPP statute.

{21} We have previously been cautioned against narrowly construing the activities protected by the Anti-SLAPP statute. In Cordova, our Supreme Court reversed this Court for holding that the Anti-SLAPP statute did not apply because a recall petitioning process under the Local School Board Member Recall Act triggered a “sufficiency hearing before a district court,” which this Court held was “not a public meeting or quasi-judicial proceeding as defined by the Anti-SLAPP statute.” 2017-NMSC-020, ¶ 22 (internal quotation marks and citation omitted). Our Supreme Court held that “[t]he Court of Appeals erred when it focused solely on the sufficiency hearing before the district court.” Id. It explained that “[s]uch a narrow interpretation of the language of the Anti-SLAPP statute is contrary to the Legislature's broad intent to protect citizens exercising their right to petition—here the right to engage in the recall process—from SLAPP suits.” Id. Our Supreme Court concluded: “[W]e hold that the Legislature intended the Anti-SLAPP statute to protect individuals, like [the p]etitioners, from lawsuits intended to chill their participation in recall proceedings.” Id. ¶ 23.

{22} Consistent with Cordova, this Court has further defined conduct made “in connection with” as that which is “made to influence, inform, or at the very least, reach governmental bodies—either directly or indirectly.” Chandler, 2021-NMCA-017, ¶ 14 (internal quotation marks and citation omitted); see id. (“The key requirement of this definition of petitioning is the establishment of a plausible nexus between the statement and the governmental proceeding.” (internal quotation marks and citation omitted)). This Court explained that “this expansive definition comports with Cordova’s inclusion of activities that, although conducted outside the potential sufficiency hearing's proceedings, sought to initiate a process by which an elected official may [be] recalled.” Chandler, 2021-NMCA-017, ¶ 14.

{23} In light of the broad interpretation of “in connection with,” I do not see how Defendants’ lobbying and petitioning efforts, which were meant to convince the Town to extend the sewer line, lack a plausible nexus to the June 20, 2018 town council meeting, where that action was ultimately approved. I do not believe Defendants needed to have requested a specific hearing, or that a specific hearing needed to have been scheduled, for Defendants’ activities to fall under the Anti-SLAPP statute, as the majority suggests. The conduct merely needed to be “engaged in for the purpose of petitioning or participating in proceedings before a local or state governmental tribunal.” Id. ¶ 15. There is no dispute that Defendants very much intended “to influence, inform, or ․ reach” the Town and convince it to extend the sewer line to and through their property. See id. ¶ 14.

{24} The majority's opinion has the potential to undermine protection for conduct at the heart of the most classic of SLAPP suits. See Frederick M. Rowe & Leo M. Romero, Resolving Land-Use Disputes by Intimidation: SLAPP Suits in New Mexico, 32 N.M. L. Rev. 217, 218 (2002) (“The typical SLAPP suit involves citizens opposed to a particular real estate development.” (internal quotation marks and citation omitted)). For example, the municipal approval process for a development can take years and involve scores of public hearings and proceedings, and citizen opposition can take many forms during that process. See Cordova, 2017-NMSC-020, ¶ 19 (“The specific protection in the Anti-SLAPP statute for participation in public hearings before tribunals ․ [should] protect citizens’ testifying, debating, complaining, campaigning, lobbying, litigating, appealing, demonstrating, and otherwise invoking the law on public issues.” (internal quotation marks and citation omitted)). The majority implies that New Mexico's Anti-SLAPP statute does not protect citizen opposition to a development project if it is not directed at a specific public hearing or proceeding, rather than the process as a whole. Maj. op. ¶ 15. It also suggests that the passage of time between the citizens’ activity and the government's ultimate decision diminishes the protections afforded by the Anti-SLAPP statute. Maj. op. ¶ 12. Under the majority's view, these citizens would not be protected by the Anti-SLAPP statute from a retaliatory suit brought by the developer to punish their previous opposition.

{25} Rather than unnecessarily narrowing our Supreme Court's broad interpretation of “in connection with” and undermining the Anti-SLAPP Act's important protections, I would instead focus on the lack of nexus, in this case, between the Town's suit for unjust enrichment and Defendants’ lobbying and petitioning activity. I would hold that Defendants in this particular case—as a matter of undisputed fact—have failed to show the Town targeted them for their petitioning conduct. See § 38-2-9.1(A) (defining a SLAPP suit as “[a]ny 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” (emphasis added)).

{26} As the majority explains, the only live claim the Town maintains against Defendants is one for unjust enrichment. Maj. op. ¶ 3. But the elements of unjust enrichment do not expressly target petitioning or lobbying activity, unlike claims classically associated with SLAPP suits. Compare Sloane v. Rehoboth McKinley Christian Health Care Servs., Inc., 2018-NMCA-048, ¶ 25, 423 P.3d 18 (explaining that “[t]he elements of unjust enrichment are: (1) another has been knowingly benefitted at one's expense (2) in a manner such that allowance of the other to retain the benefit would be unjust” (internal quotation marks and citation omitted)), with Cordova, 2017-NMSC-020, ¶ 26 (associating SLAPP suits with “tortious interference with contract and with business relations/economic advantage, defamation, violation of civil rights, abuse of process, and intentional infliction of emotional distress” (internal quotation marks and citation omitted)). Unsurprisingly, the Town's unjust enrichment claim does not mention any of Defendants’ protected activities.

{27} Lacking a claim that facially targets the protected activity, the only way Defendants can show the Town's unjust enrichment claim constitutes a SLAPP suit is by showing it was filed in retaliation for Defendants’ protected activity. See, e.g., Ferebee, 2021-NMCA-012, ¶¶ 3-4 (involving claims for improper use of a credit card, forgery, and failure to repay a loan made against an employee who argued under the Anti-SLAPP statute that the claims “were made in retaliation for her declarations to the Department of Commerce”). Because Defendants elected to pursue this claim through summary judgment, Defendants concede they must make that showing as a matter of undisputed fact. This they have not done.

{28} Defendants claimed the Town brought suit in retaliation for Defendants’ protected activity:

Although every single landowner along the route of the 2018-[ ]19 sewer extension had at one time or another petitioned the Town ․ for construction of the sewer line extension between Cactus Road and Main Street, my family and I alone have been singled out by the current political leadership of the Town ․ for false and malicious allegations of unjust enrichment.

But the Town refuted that motive in its response to Defendants’ motion for summary judgment: “No one is retaliating against [Josephine] Bassett for writing letters or signing petitions.” In support, the Town introduced an affidavit from its commissioner, which stated in relevant part: “No petitions, written communications or speech by Josephine or Eugene Bassett is in any way the basis for, or the subject of, this legal action․ The Town ․ is not singling out the Bassett family in any way.” The commissioner affirmed that the real motive for the suit was the fact that former “Mayor [John] Bassett diverted the sewer priority onto Bassett lands” and that “[m]ost of the Cactus/Main sewer extension borders on, or is built entirely on Bassett property.” Furthermore, Defendants’ assertion that “every single landowner along the route” petitioned for the sewer extension but they alone were sued, tends to undermine Defendants’ claim that the Town retaliated for petitioning or other protected activity.

{29} As a result, a genuine issue of material fact remains as to whether the Town's action was in retaliation for Defendants’ protected activity. Accordingly, I would hold that Defendants have failed to make the requisite showing that the Town's action against them for unjust enrichment is a SLAPP suit as contemplated under Section 38-2-9.1(A). Lacking appellate jurisdiction under the Anti-SLAPP statute at this stage, I would dismiss the appeal as premature.

FOOTNOTES

1.   Defendants’ briefing states that Josephine passed away during the pendency of this appeal. The caption remains unchanged because no suggestion of death or motion under Rule 12-301 NMRA has been filed.

2.   Defendants also argue that the district court erred by denying their joint motion to strike and their request for attorney fees and costs. However, we do not address either of these issues within this opinion because our appellate jurisdiction under Section 38-2-9.1(C) is limited to the special motions described in Section 38-2-9.1(B). See Valenzuela v. My Way Holdings, LLC, 2024-NMCA-009, ¶ 23, 541 P.3d 191.

3.   Defendants devoted a portion of their briefing to argue why the conduct at issue in this case is immunized under the First Amendment of the U.S. Constitution and the Noerr-Pennington doctrine. Because we conclude Defendants’ conduct is not petitioning conduct within the procedural protections of the Anti-SLAPP statute, we need not proceed to a Noerr-Pennington analysis in this appeal. See Cordova, 2017-NMSC-020, ¶ 24 (“While the Anti-SLAPP statute provides the procedural protections [the p]etitioners require, the Noerr-Pennington doctrine is the mechanism that offers [the p]etitioners the substantive First Amendment protections they seek.”); Ferebee, 2021-NMCA-012, ¶ 26 (declining to proceed to a Noerr-Pennington analysis after reaching a conclusion that the Anti-SLAPP statute did not apply to the conduct at issue); Valenzuela, 2024-NMCA-009, ¶¶ 31-47.

MEGAN P. DUFFY, Judge

I CONCUR: SHAMMARA H. HENDERSON, Judge KRISTOPHER N. HOUGHTON, Judge, specially concurring