ALEXANDER, J.
[¶ 1] In this appeal we consider whether the Maine anti-SLAPP (Strategic Lawsuit Against Public Participation) statute, 14 M.R.S. § 556 (2011),1 may be invoked to deprive a minor-party candidate of his day in court on a suit in which, he alleges that he was subject to abuses of process, damaging to his candidacy, by organizations and individuals who conspired to take actions to prevent or complicate his inclusion on the ballot in Maine and other jurisdictions during the 2004 presidential election. We conclude that the Maine anti-SLAPP statute may not be invoked to achieve dismissal of claims alleging abuses of process without giving the plaintiff the opportunity to establish a prima facie case to support the claims.
[¶ 2] Ralph Nader, Christopher Droz-nick, Nancy Oden, and Rosemary Whittaker (collectively, Nader) appeal from a judgment of the Superior Court (Washington County, Cuddy, J.) granting the opposing parties’ special motions to dismiss Nader’s complaint pursuant to the Maine anti-SLAPP statute, 14 M.R.S. § 556. The opposing parties are (1) the Maine Democratic Party, the Democratic National Committee, Kerry-Edwards 2004, Inc., Dorothy Melanson, and Terry McAuliffe (collectively, MDP); and (2) Toby Moffett and The Ballot Project, Inc. (collectively, Moffett).
[¶ 3] Nader argues that the court erred in interpreting and applying the anti-SLAPP statute when it granted MDP’s and Moffett’s special motions to dismiss; that the anti-SLAPP statute, as applied by the court, improperly abrogates common law tort law; and that the anti-SLAPP statute is unconstitutional as applied by the court. Moffett, as cross-appellant, appeals from the court’s separately entered order on his motion for attorney fees, arguing that the court abused its discretion when it awarded him only one dollar in costs and attorney fees following the grant of his special motion to dismiss. Concluding that a legal standard different from that applied by the trial court applies in this anti-SLAPP matter, we vacate the judgment granting MDP’s and Moffett’s special motions to dismiss and granting Moffett’s motion for attorney fees.
I. CASE HISTORY
[¶ 4] Ralph Nader was an independent candidate for President in the 2004 presidential election. His presidential electors in Maine included Christopher Droznick, Nancy Oden, and Rosemary Whittaker. Nader and his Maine presidential electors are collectively referenced as “Nader” in this opinion.2
[¶ 5] In November 2009, Nader filed a six-count complaint against MDP and Mof-fett based on actions that were alleged to have occurred prior to the 2004 presidential election. The complaint contains counts alleging (I) civil conspiracy; (II) [555]*555conspiracy to commit abuse of process and wrongful use of civil proceedings/malicious prosecution; (III) abuse of process in Maine proceedings; (IV) wrongful use of civil proceedings/malicious prosecution in Maine; (V) abuse of process in eighteen other jurisdictions; and (VI) wrongful use of civil proceedings/malicious prosecution in those eighteen jurisdictions.
[¶ 6] The Nader complaint alleged that MDP and Moffett took direct action, and conspired with others, to prevent Ralph Nader from appearing on the ballot as a candidate in the 2004 presidential election and deprive voters of the opportunity to vote for him. Nader alleged that MDP and Moffett attempted to accomplish these ends primarily by filing, and conspiring with others to file, twenty-nine “objectively baseless” complaints with courts and administrative bodies in seventeen states, including Maine, and with the Federal Election Commission (FEC) in the District of Columbia, all within a twelve-week period.3 Nader alleged that the complaints challenged Nader’s nomination papers and requested that Nader not be certified to run in the 2004 general election, but that MDP’s and Moffett’s actual and admitted purpose in filing the twenty-nine complaints was to “neutralize” the Nader campaign by distracting it and by draining it of money, time, and resources.
[¶ 7] The Nader complaint alleged that MDP’s and Moffett’s complaints were found to be baseless by a majority of the tribunals that considered the complaints, although it acknowledged that MDP and Moffett were successful in certain jurisdictions, at least at some stage of the proceedings. Nader’s complaint, as well as subsequently submitted affidavits, contain numerous paragraphs alleging specific instances when MDP and Moffett acted and took coordinated actions with alleged co-conspirators for the sole purpose of harassing, distracting, and draining the resources from his campaign.
[¶ 8] With respect to the State of Maine, Nader alleged that MDP and Mof-fett filed two baseless complaints with the Secretary of State “raising technical objections to the form of [Nader’s] nomination papers”; that the Secretary of State found the complaints lacked merit and dismissed them; and that MDP and Moffett exhausted all appeals to the Superior Court and to this Court, in which they were unsuccessful. See Melanson v. Sec’y of State, 2004 ME 127, 861 A.2d 641; Melanson v. Dep’t of the Sec’y of State, 2004 WL 3196784, 2004 Me.Super. LEXIS 233 (Sept. 27, 2004).
[¶9] Finally, the Nader complaint alleged that Nader was damaged by MDP’s and Moffett’s actions by, among other things, being drained of time, money and other resources, being prevented from gaining ballot access in several states, and sustaining injury to Nader’s financial resources and reputation.
[¶ 10] MDP and Moffett each filed motions to dismiss the Nader complaint pursuant to M.R. Civ. P. 12(b). MDP included with its motion to dismiss, and Moffett separately filed, a special motion to dismiss Nader’s complaint pursuant to the anti-SLAPP statute, 14 M.R.S. § 556. Nader opposed the motions.
[¶ 11] The court held a hearing in November 2010 on the special motions to dismiss and entered a judgment granting MDP’s and Moffett’s special motions to dismiss. The court concluded that MDP and Moffett satisfied their initial burdens under the anti-SLAPP statute of showing that “their activity of challenging nomina[556]*556tion petitions in several states is activity manifesting their right of petition under the” United States and Maine Constitutions and is protected by section 556. The court then concluded that Nader had failed to meet his burden of showing that “the Defendants’ efforts in the 17 states and before the Federal Election Commission were devoid of any reasonable factual support or any arguable basis in law,” even if MDP and Moffett often were not successful. Accordingly, the court granted MDP’s and Moffett’s special motions to dismiss pursuant to the anti-SLAPP statute and dismissed the Rule 12(b) motions as moot. Nader filed a timely notice of appeal from the court’s judgment.
[¶ 12] Moffett filed a motion for costs and attorney fees pursuant to the anti-SLAPP statute, which Nader opposed.4 On December 28, 2010, the court entered a four-page judgment granting Moffett’s motion and awarding one dollar in fees and costs. The court stated that “[t]he broad interpretation and application of [the anti-SLAPP statute] by the Law Court, compels the decision [the court] reached” in its judgment. The court further stated, “But for the impact of legal authority in this State relating to 14 M.R.S. § 556, this [c]ourt is of the opinion that [Nader’s] action warranted further analysis and development through the evolution of normal civil litigation process.” The court thus concluded that “the special circumstances of this case” warranted a grant of fees and costs to Moffett, but that the same considerations persuaded the court that an award of one dollar was appropriate. Mof-fett cross-appeals from the court’s December 28, 2010, order.
II. LEGAL ANALYSIS
A. Anti-SLAPP Statute; Historical Interpretation and Application
[¶ 13] Title 14 M.R.S. § 556, known as Maine’s anti-SLAPP statute, states in relevant part:
When a moving party asserts that the civil claims, counterclaims or cross claims against the moving party are based on the moving party’s exercise of the moving party’s right of petition under the Constitution of the United States or the Constitution of Maine, the moving party may bring a special motion to dismiss. The court shall advance the special motion so that it may be heard and determined with as little delay as possible. The court shall grant the special motion, unless the party against whom the special motion is made shows that the moving party’s exercise of its right of petition was devoid of any reasonable factual support or any arguable basis in law and that the moving party’s acts caused actual injury to the responding party. In making its determination, the court shall consider the pleading and supporting and opposing affidavits stating the facts upon which the liability or defense is based.[5]
[557]*557[¶ 14] The anti-SLAPP statute is designed to allow a defendant to file a special motion to dismiss a lawsuit that a plaintiff brings “with the intention of chilling or deterring the free exercise of the defendant’s First Amendment right to petition the government by threatening would-be activists with litigation costs.” Schelling v. Lindell, 2008 ME 59, ¶ 6, 942 A.2d 1226; see also Maietta Constr., Inc. v. Wainwright, 2004 ME 53, ¶ 6, 847 A.2d 1169 (“Section 556 was designed to combat litigation without merit filed to dissuade or punish the exercise of First Amendment rights of defendants.”); Morse Bros., Inc. v. Webster, 2001 ME 70, ¶ 10, 772 A.2d 842 (“Because winning is not a SLAPP plaintiffs primary motivation, defendants’ traditional safeguards against meritless actions, (suits for malicious prosecution and abuse of process, requests for sanctions) are inadequate to counter SLAPP [suits].”).
[¶ 15] Pursuant to the language of section 556 and our case law, which the trial court attempted to follow, the application of the anti-SLAPP statute is a two-step process. At the first step, the court determines whether the anti-SLAPP statute applies. At this step, the moving party (i.e., the defendant) “carries the initial burden to show that the suit was based on some activity that would qualify as an exercise of the defendant’s First Amendment right to petition the government.” Schelling, 2008 ME 59, ¶ 7, 942 A.2d 1226; see also Morse Bros., 2001 ME 70, ¶¶ 19-20, 772 A.2d 842. If the moving party fails to meet its burden at this step, the antiSLAPP statute does not apply, and the special motion is denied. See Schelling, 2008 ME 59, ¶ 7, 942 A.2d 1226; see also Wenger v. Aceto, 451 Mass. 1, 883 N.E.2d 262, 266 (2008).
[¶ 16] If the moving party demonstrates that the suit is based on some activity that would qualify as an exercise of the defendant’s First Amendment right to petition the government, and therefore that the statute applies, the burden shifts to the nonmoving party to establish, through pleadings and affidavits, that the moving party’s exercise of its right of petition (1) was “devoid of any reasonable factual support or any arguable basis in law,” and (2) “caused actual injury” to the nonmoving party. 14 M.R.S. § 556; Schelling, 2008 ME 59, ¶ 7, 942 A.2d 1226; Morse Bros., 2001 ME 70, ¶ 20, 772 A.2d 842. If the nonmoving party fails to meet its burden at this second step of the analysis, the court must grant the special motion to dismiss. See Maietta Constr., 2004 ME 53, ¶ 8, 847 A.2d 1169.
[¶ 17] The analysis a court may use to determine whether the nonmoving party has met its burden to establish that the moving party’s action was devoid of any reasonable factual support or any arguable basis in law and caused actual injury is not specified in the anti-SLAPP statute. In our precedents addressing the nonmoving party’s efforts to meet its statutory burden, we have reviewed “the evidence in the light most favorable to the moving party because the responding party bears the burden of proof when the statute applies.” Id.; Morse Bros., 2001 ME 70, ¶ 18, 772 A.2d 842. Application of this standard becomes problematic when the “evidence” to be viewed most favorably to the moving party is disputed and consists only of pleadings and statements in affidavits not yet subject to discovery or trial.
B. Statutory Construction with Constitutional Issues Implicated
[¶ 18] We have interpreted the anti-SLAPP statute only a few times since its [558]*5581995 enactment by P.L.1995, ch. 413, § 1 (effective Sept. 29, 1995). See Schelling, 2008 ME 59, 942 A.2d 1226; Maietta Constr., 2004 ME 53, 847 A.2d 1169; Morse Bros., 2001 ME 70, 772 A.2d 842. We have striven to interpret the anti-SLAPP statute in accordance with its plain language. See Driscoll v. Mains, 2005 ME 52, ¶ 6, 870 A.2d 124 (“When construing a statute, we look to its plain meaning and try to give effect to the legislative intent”).
[¶ 19] When constitutional rights are implicated in the application of a statute, another rule of statutory construction holds that we must construe a statute to preserve its constitutionality, or to avoid an unconstitutional application of the statute, if at all possible. See Rideout v. Riendeau, 2000 ME 198, ¶ 14, 761 A.2d 291. Thus, when there is a reasonable interpretation of a statute that will satisfy constitutional requirements, we will adopt that interpretation, Driscoll, 2005 ME 52, ¶ 6, 870 A.2d 124, notwithstanding other possible interpretations of the statute that could violate the Constitution, see Rideout, 2000 ME 198, ¶ 14, 761 A.2d 291; Bossie v. State, 488 A.2d 477, 479 (Me.1985) (stating that “this Court is bound to avoid an unconstitutional interpretation of a statute if a reasonable interpretation of the statute would satisfy constitutional requirements”).
[¶ 20] This appeal requires us to interpret and apply the anti-SLAPP statute against a backdrop of several constitutional rights that are implicated by Nader’s claims.6 These rights include the right to petition, the right of access to the courts, and the right of access to the ballot for candidates and voters.
1. The Right to Petition
[¶ 21] The right to petition the government, including the right to file complaints in courts, is a fundamental right protected by the First Amendment. See U.S. Const. amend. I; Borough of Duryea v. Guarnieri, 564 U.S. -, 131 S.Ct. 2488, 2491, 2494, 180 L.Ed.2d 408 (2011) (“Among other rights essential to freedom, the First Amendment protects ‘the right of the people ... to petition the Government for a redress of grievances.’”); McDonald v. Smith, 472 U.S. 479, 482, 484-85, 105 S.Ct. 2787, 86 L.Ed.2d 384 (1985).7 The right to petition is one of “the most precious of the liberties safeguarded by the Bill of Rights” and is made applicable to the states by the Fourteenth Amendment. United Mine Workers v. Illinois Bar Ass’n, 389 U.S. 217, 222, 88 S.Ct. 353, 19 L.Ed.2d 426 (1967); Virginia v. Black, 538 U.S. 343, 358, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003). This right belongs not just to MDP and Moffett in their petitioning of the courts and state agencies as alleged in the underlying complaint, but to Nader in petitioning the court to seek redress for alleged injuries to his right to participate in elections and to voters’ rights to have the opportunity to [559]*559vote for the qualified candidate of their choice. These rights, Nader alleges, were diminished or eliminated as a result of MDP’s and Moffett’s petitioning activities.8
[¶ 22] When interpreting the Massachusetts anti-SLAPP statute, which contains provisions nearly identical to 14 M.R.S. § 556, see Morse Bros., 2001 ME 70, ¶ 15, 772 A.2d 842, the Massachusetts Supreme Judicial Court recognized the conflicting rights to petition inherent in the statute, stating:
Despite the apparent purpose of the anti-SLAPP statute to dispose expeditiously of meritless lawsuits that may chill petitioning activity, the statutory language fails to track and implement such an objective. By protecting one party’s exercise of its right of petition, unless it can be shown to be sham petitioning, the statute impinges on the adverse party’s exercise of its right to petition, even when it is not engaged in sham petitioning.
Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 691 N.E.2d 935, 943 (1998).9 As we interpret the language of the anti-SLAPP statute applicable to the second step of our anti-SLAPP analysis, we must keep in mind the conflicting rights to petition implicated by the statute.
2. The Right of Access to the Courts
[¶ 23] The right of access to the courts is a right protected in the Maine Constitution and recognized under the United States Constitution. The Maine Constitution provides a right of redress through the courts for injuries, stating, “Every person, for an injury inflicted on the person or the person’s reputation, property or immunities, shall have remedy by due course of law; and right and justice shall be administered freely and without sale, completely and without denial, promptly and without delay.” Me. Const, art. I, § 19. This “open courts” provision “means the courts must be accessible to all persons alike without discrimination, at times and places designated for their sitting, and afford a speedy remedy for every wrong recognized by law as remediable in a court.” Maine Med. Ctr. v. Cote, 577 A.2d 1173, 1176 (Me.1990).
[¶ 24] The substantive right of access to the courts is also “ ‘one of the fundamental rights protected by the [United States] Constitution.’” Webb v. Haas, 1999 ME 74, ¶ 10, 728 A.2d 1261 (considering whether an officer reasonably should have known that the coverup of a violation [560]*560of police procedure deprived the plaintiffs of their Constitutional right of access to the courts by interfering with their ability to bring state law actions against perpetrators of a crime); see Ryland v. Shapiro, 708 F.2d 967, 971-72 (5th Cir.1983); see also U.S. Const. Amend. I.
[¶ 25] The right of access to the courts has also been recognized as a substantive right applicable to plaintiffs in civil actions under the Due Process Clause of the Fourteenth Amendment.10 Boddie v. Connecticut, 401 U.S. 371, 379, 382-83, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971) (holding that a court filing fee requirement precluded welfare recipients’ access to courts to file complaints for divorce in violation of their due process rights under the Fourteenth Amendment); Ryland, 708 F.2d at 971-73.
3. Right of Access to the Ballot
[¶ 26] “Restrictions on access to the ballot burden two distinct and fundamental rights, the right of individuals to associate for the advancement of political beliefs [under the First Amendment], and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively.” Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979); see Munro v. Socialist Workers Party, 479 U.S. 189, 193, 107 S.Ct. 533, 93 L.Ed.2d 499 (1986). “These fundamental rights are implicated most clearly where minor-party access to the ballot is restricted.” Munro, 479 U.S. at 200, 107 S.Ct. 533 (Marshall, J., dissenting).11
[¶ 27] Nader’s complaint alleges that the restriction on his access to the ballot was the result of improper action by private parties rather than by state action, although those private parties did avail themselves of state action and court access in order to, allegedly, challenge and obstruct Nader’s access to ballots. Regardless, Nader’s right of access to the ballot is implicated in, and forms an essential basis for, his complaint.
[561]*561C. Interpretation and Application of the Anti-SLAPP Statute to this Case
[¶ 28] There is no dispute that at the first step of the anti-SLAPP statute analysis, the moving parties, MDP and Moffett, demonstrated that Nader’s claims against them are based on MDP’s and Moffett’s exercise of the right of petition. 14 M.R.S. § 556; Schelling, 2008 ME 59, ¶¶ 11-12, 942 A.2d 1226 (“As is clear from the language of section 556, the Legislature intended to define in very broad terms those statements that are covered by the statute.”).12
[¶ 29] We focus our analysis, therefore, on the second step of the antiSLAPP analysis: whether Nader met his burden to establish that MDP’s and Moffett’s exercise of their right of petition “was devoid of any reasonable factual support or any arguable basis in law” and “caused actual injury” to Nader. 14 M.R.S. § 556. As we have interpreted section 556, if both the moving party (generally a defendant) and the nonmoving party (generally a plaintiff) present conflicting facts, the nonmoving party will always lose because the court must view the evidence in the light most favorable to the moving party. See Maietta Constr., 2004 ME 58, ¶ 8, 847 A.2d 1169; Morse Bros., 2001 ME 70, ¶ 18, 772 A.2d 842. This has sometimes been referred to as a “converse summary-judgment-like standard.” See John G. Osborn & Jeffrey A. Thaler, Maine’s Anti-SLAPP Law: Special Protection Against Improper Lawsuits Targeting Free Speech and Petitioning, 23 Me. Bar J. 32, 37 (2008).
[¶ 30] Applying this “converse summary-judgment-like standard” makes the special motion to dismiss unlike the other primary procedural mechanisms for early disposition of claims. In both motions to dismiss pursuant to M.R. Civ. P. 12(b)(6) and motions for summary judgment pursuant to M.R. Civ. P. 56, the trial court views the pleadings and evidence in the light most favorable to the nonmoving party, just as we do in reviewing such matters. See Dyer v. Dep’t of Transp., 2008 ME 106, ¶ 14, 951 A.2d 821. If the party with the burden on the dispositive motion (the party seeking dismissal or judgment without trial) fails to meet it, the result is a trial. However, when applying [562]*562the special motion to dismiss, pursuant to our precedent interpreting section 556, if the party with the burden at step two (the nonmoving party, generally the plaintiff) fails to meet its burden, the result is no trial and dismissal of the action.
[¶ 31] This standard, which requires the court to view evidence in the light most favorable to the moving party, is a creature of case law. It does not appear in the language of the statute. Section 556 requires, at step two, only that the plaintiff shows “that the moving party’s exercise of its right of petition was devoid of any reasonable factual support or any arguable basis in law and that the moving party’s acts caused actual injury to the responding party.” Section 556 further provides: “In making its determination, the court shall consider the pleading and supporting and opposing affidavits stating the facts upon which the liability or defense is based.”
[¶ 32] The converse summary-judgment-like standard first appeared in Morse Brothers, Inc. v. Webster, in the context of appellate review. 2001 ME 70, ¶ 18, 772 A.2d 842. The standard was later applied in Maietta Construction, Inc. v. Wainwright, 2004 ME 53, ¶ 8, 847 A.2d 1169 (“[T]his evidence is viewed most favorably to the moving party....”).
[¶ 33] A plain reading of section 556 does not dictate the converse summary-judgment-like standard, and it is this standard, not section 556, that burdens the constitutional rights at issue. To avoid an unconstitutional application of the law, as our rules of statutory interpretation require us to do, section 556 must be construed, consistent with usual motion-to-dismiss practice, to permit courts to infer that the allegations in a plaintiffs complaint and factual statements in any affidavits responding to a special motion to dismiss are true.13 This standard, consistent with other dispositive motion practice, requires only that the nonmoving party provide pri-ma facie evidence to support its burden of showing that the moving party’s petitioning activity was “devoid of any reasonable factual support or any arguable basis in law and that the moving party’s acts caused actual injury to the responding party.” 14 M.R.S. § 556.
[¶ 34] We recently described the prima facie evidence standard as
the preliminary burden of production of evidence; it requires proof only of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party’s favor. Prima facie evidence requires only some evidence on every element of proof necessary to obtain the desired remedy. Thus, prima facie proof is a low standard that does not depend on the reliability or credibility of the evidence, all of which may be considered at some later time in the process.
Cookson v. State, 2011 ME 53, ¶ 8, 17 A.3d 1208 (internal citations omitted).
[¶ 35] A plaintiff may meet its burden of proof responding to a special motion to dismiss if, through “the pleading and supporting and opposing affidavits,” 14 M.R.S. § 556, the plaintiff presents “some evidence” that the defendant’s petitioning activity was devoid of factual or legal support and caused actual injury. Even when faced with conflicting evidence from a defendant, a plaintiff able to meet this “low standard” could avoid dismissal of his or her claim.
[563]*563[¶ 36] Accordingly, today we announce a change in the parties’ burdens at the preliminary anti-SLAPP dismissal stage. Upon a special motion to dismiss, a nonmoving party’s action or claim should be allowed to proceed unless the nonmoving party, here Nader, by pleading or affidavits, fails to make a prima facie showing that any, rather than all, of the petitioning activities by the moving parties, here MDP and Moffett, necessarily including here MDP’s and Moffett’s actions in Maine, were devoid of any reasonable factual support or arguable basis in law. See Morse Bros., 2001 ME 70, ¶ 21, 772 A.2d 842 (leaving open the question of whether a nonmoving party can sustain its burden if some but not all of the moving parties’ petitioning actions were devoid of merit).
[¶ 37] If Nader fails to make a prima facie case that any of MDP’s and Moffett’s petitioning activities in any other state or states were devoid of any reasonable factual support or arguable basis in law, the claims regarding actions in those states where no prima facie case is demonstrated would be dismissed.14 If Nader fails to make a prima facie case that any of MDP’s and Moffett’s petitioning activities in Maine were devoid of any reasonable factual support or arguable basis in law, the action must be dismissed, as there would be no basis for the courts of the State of Maine to assert jurisdiction over actions that occurred only in other states.
[¶ 38] We therefore remand this matter for the trial court to reapply the statute at the second step of the antiSLAPP analysis, including making a determination as to whether Nader can present sufficient evidence to make a prima facie showing that any of MDP’s and Moffett’s petitioning activities, including actions in Maine, were devoid of any reasonable factual support or any arguable legal basis and resulted in actual injury to him. Actual injury could include, as alleged in Nader’s complaint, quantifiable losses of money or other resources or identifiable special damages. An abuse of process claim would also require a prima facie showing of two elements: (1) “the use of process in a manner improper in the regular conduct of the proceeding,” and (2) “the existence of an ulterior motive.” Advanced Constr. Corp. v. Pilecki, 2006 ME 84, ¶ 23, 901 A.2d 189.
[¶ 39] Because we vacate the court’s judgment granting MDP’s and Moffett’s special motions to dismiss and remand for further proceedings, we also vacate the court’s judgment awarding Moffett attorney fees and costs.
The entry is:
Judgment granting MDP’s and Moffett’s special motions to dismiss is vacated. Judgment granting Moffett’s motion for attorney fees and costs is vacated. Remanded for further proceedings consistent with this opinion.