Judge splits two issues in dismissing lawsuit
Judge David Wall granted a motion late Wednesday to dismiss a lawsuit filed by home builder D.R. Horton against Safe Homes Nevada, a coalition of homeowners, based upon protections of the fair reporting privilege.

Judge splits two issues in dismissing lawsuit

By HUBBLE SMITH
REVIEW-JOURNAL

Judge David Wall granted a motion late Wednesday to dismiss a lawsuit filed by home builder D.R. Horton against Safe Homes Nevada, a coalition of homeowners, based upon protections of the fair reporting privilege.

At the same time, the District Court judge denied another request to grant a special motion to dismiss the case pursuant to NRS 41.660, a relatively new state law governing Strategic Lawsuits Against Public Participation.

SLAPP statutes are generally intended to keep large companies or individuals from filing lawsuits with the intention of silencing critics or opponents who may not have the resources to effectively fight defamation lawsuits.

The special motion to dismiss is solely based on the issue of whether the lawsuit qualifies as a SLAPP, Wall wrote in his order.

"Having determined that there exist genuine issues of material fact, the court cannot, on the special motion to dismiss, find that the instant action is a Strategic Lawsuit Against Public Participation," he wrote.

The case involves the posting of information on Safe Homes' Web site that D.R. Horton was a "repeat offender" for failure to repair construction defects in one of its homes.

D.R. Horton attorney Leon Mead, arguing before Wall last week in District Court, pointed out that the homeowners in that particular case had refused repairs and rejected a settlement offer from the builder.

D.R. Horton filed a lawsuit, claiming the information was "defamatory." Safe Homes responded with the motion to dismiss based on the fair reporting privilege and SLAPP statute. The fair reporting privilege protects people who fairly and accurately recount information in an official report even if the report turns out to contain errors.

"We're gratified that the case has been dismissed," said Don Campbell, attorney for Safe Homes Nevada. "We don't believe it should have been filed in the first place. It was ill-conceived.

"This was a very heavy-handed move by any manner. A multibillion-dollar company set out to intimidate these folks and it didn't work."

Campbell said he would apply to the court for attorneys' fees and other costs incurred by the defendants.

Also, he said SLAPP could "absolutely" be brought back into court if the case is appealed.

Mead, who, like Campbell, had not yet seen the order, said he would have to read the judge's opinion and meet with his client before deciding whether to appeal.

"I certainly think we have grounds," he said late Wednesday. "He's not correct. I don't think this was fair reporting, once you take the context of the Web site and look at the last sentence."

The final sentence of Safe Homes' introductory paragraph on its Web site says: "Find out if your home builder is listed here and learn about what happens in real life when homeowners want repairs."

D.R. Horton contends that the latter part of the phrase is defamatory and misstates information contained in the list of cases to which it directs readers.

Mead said "it doesn't come as a shock" that Wall split the issues of fair reporting privilege and SLAPP in his decision, based on the judge's final questions to Campbell at last week's hearing.

Wall had asked Campbell if he was pursuing the case as fair reporting or SLAPP. Campbell said both apply, but ultimately he was looking for a SLAPP ruling.

"The First Amendment is first for a reason," Campbell said in court. "Not only does it protect freedom of religion, free speech, freedom of the press, it protects our right to petition the government, which is often forgotten.

"The whole point of these developers, these multibillion-dollar corporations, is not to win or lose in court. What they really want is to just drag them (defendants) through a discovery process. The whole exercise is to chill their right of free speech and to send a message to others."

Campbell said there's been a long history in the construction industry to silence the public when developers are seeking to rezone or expand. They consider it part of the cost of doing business, hiring large law firms to go after the individual citizens.

"After a number of these suits were filed primarily by developers, it became obvious they were silencing opposition by virtue of economic power and force," Campbell said.

"They essentially excluded these members of the public from participating, from petitioning the government, which is their right under the First Amendment."