filed seeking relief against other directors for allegedly improper corporate 

acts. The Burns were not served, and Allen moved to dismiss the case 

based upon both NRS 41.660, Nevada's anti-SLAPP statute, and NRCP 

12(b)(5) for failure to state a claim. The district court granted Allen's 

motion, denying relief under NRS 41.660 but dismissing the causes of 

action against him under NRCP 12(b)(5). Allen subsequently moved for 

attorney fees under NRS 18.010(2)(b), which the district court denied. The 

district court later dismissed the Burns from the action because Drake had 

failed to serve them. 

These appeals followed, with Drake challenging the dismissal 

of the lawsuit and Allen challenging the denial of the anti-SLAPP portion 

of his motion to dismiss and the denial of his attorney fee request. We 

review de novo a district court's order granting a motion to dismiss, Moon 

v. McDonald, Carano & Wilson LLP, 129 Nev. Adv. Op. No. 56, 306 P.3d 

406, 408 (2013), but we review the district court's order denying attorney 

fees for an abuse of discretion. Bobby Berosini, Ltd. v. PETA, 114 Nev. 

1348, 1354, 971 P.2d 383, 387 (1998). 

Docket No. 64854 

During briefing, Allen moved to dismiss Drake's appeal 

because Drake sold his shares in HCS and is no longer a shareholder. The 

third, eighth, and ninth causes of action are derivative in nature and 

brought by Drake on behalf of HCS. 1Assuming, without deciding, that 

'Regarding the third cause of action, Drake did not allege that a 

contract existed between himself and Allen, which is required for Drake to 

maintain a direct action against Allen for a contractual breach of the 

covenant of good faith and fair dealing. Hilton Hotels Corp. v. Butch Lewis 

continued on next page... 

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Drake properly brought these claims without making the demand on the 

board required in derivative litigation because HCS was a six-shareholder 

corporation, Drake may no longer maintain these causes of action because 

he sold his shares of stock in the corporation. NRCP 23.1; Keever v. 

Jewelry Mountain Mines, Inc., 100 Nev. 576, 577-78, 688 P.2d 317, 317-18 

(1984). Thus, we grant Allen's September 29, 2014, motion to dismiss 

Drake's appeal with regard to these causes of action. We deny the motion 

as to the other causes of action. 

Starting with Allen's cross-appeal, when considering a motion 

made under Nevada's Anti-SLAPP statute, the district court must 

determine (a) if "the claim is based upon a good faith communication in 

furtherance of the right to petition," and (b) "whether the plaintiff has 

established by clear and convincing evidence a probability of prevailing on 

the claim." NRS 41.660(3)(a)-(b); see John v. Douglas Cnty. Sch. Dist., 125 

Nev. 746, 752, 219 P.3d 1276, 1281 (2009). In this case, the first, second, 

fourth, fifth, and sixth causes of action are based upon Allen's "good faith 

communication in furtherance of the right to petition" because they are 

based on the filing of the Allen/Burns complaint. See JSJ Ltd. P'ship v. 

Mehrban, 141 Cal. Rptr. 3d 338, 345 (Ct. App. 2012) ("Filing a lawsuit is 

an act in furtherance of the constitutional right of petition, regardless of 

...continued 

Prods., Inc., 107 Nev. 226, 234, 808 P.2d 919, 923-24 (1991). Similarly, 

regarding the eighth cause of action, Drake does not allege that an 

attorney-client relationship existed between himself and Allen, which is 

required for Drake to maintain a direct malpractice action against Allen. 

Hewitt v. Allen, 118 Nev. 216, 220-21, 43 P.3d 345, 347 (2002). 

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whether it has merit."). These claims also lack a probability of success on 

the merits because they are based upon Allen's alleged ulterior motive to 

dissolve HCS. In this regard, assuming that Allen desired to dissolve 

HCS, persons holding ten percent or more of the outstanding stock in a 

corporation may seek judicial dissolution of the corporation under NRS 

78.650, and thus, seeking such dissolution is not an act that would subject 

them to liability. See also NRS 78A.140(1)(a) (permitting a stockholder in 

a close corporation to petition the court to appoint a receiver and dissolve 

the corporation); Bedore v. Familian, 122 Nev. 5, 10, 125 P.3d 1168, 1171- 

72 (2006). Therefore, the district court should have granted Allen's antiSLAPP motion as to the first, second, fourth, fifth, and sixth causes of 

action. Accordingly, we affirm the dismissal of these causes of action, but 

for different reasons than those stated by the district court. In light of this 

order, we remand this matter to the district court for consideration of 

Allen's request for attorney fees and costs under NRS 41.670. 

Regarding Drake's appeal, we affirm the dismissal of the 

seventh and last remaining cause of action because Drake asserted this 

cause of action only against Mr. Burns, whom he failed to serve. 

Docket No. 65602 

Turning to the appeal in Docket No. 65602, the grant or denial 

of attorney fees under NRS 18.010(2)(b) is within the discretion of the 

district court. We conclude that the district court did not abuse its 

discretion when it denied Allen's requested attorney fees because the nonSLAPP causes of action were not maintained without reasonable grounds. 

NRS 18.010(2)(b); Bobby Berosini, 114 Nev. at 1354-55, 971 P.2d at 387. 

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C. Tho 

Douglas 

 J. 

Parraguirre 

J. , J. 

Accordingly, we affirm the district court's order denying attorney fees 

under NRS 18.010(2)(b). 

It is so ORDERED. 2 

cc: Hon. Scott N. Freeman, District Judge 

Richard W. Drake 

Kent Law 

Washoe District Court Clerk 

2In his motions and oppositions, Drake alleges, and Allen disputes, 

that this case was settled in conjunction with the settlement of the 

Allen/Burns complaint and with Drake's sale of his stock shares to Allen 

and the Burns. Whether this is true is unclear, however, because Drake 

and Allen have submitted conflicting and incomplete documents and 

limited argument regarding whether the settlement included this matter. 

Accordingly, we decline to consider the settlement issue. Drake may raise 

this argument on remand in the district court. 

We have considered the parties' other arguments and conclude that 

they lack merit. 

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