//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, 

v. 

JAMES GRANT and JANE DOE GRANT, 

individually and the marital community 

composed thereof, if any; KASSANDRA 

KENNAN and JOHN DOE KENNAN, 

individually and the marital community 

composed thereof, if any; DAVIS WRIGHT 

TREMAINE, LLP, a Washington company; 

SEATTLE DEPOSITION REPORTERS, 

LLC, a Washington company; T-MOBILE 

USA, INC., a Delaware corporation, 

Respondents. 

NO. 89820-1 

ENBANC 

Filed JUL 2 3 2015 

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 antiSLAPP 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. 

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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, 

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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. 

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