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*********************************************** 
BLACK ROCK GARDENS, LLC v. HENRY BERRY

(AC 46942)

Bright, C. J., and Moll and Clark, Js.

Syllabus

The plaintiff landlord sought, by way of summary process, to regain possession of certain premises leased to the defendant tenant. The defendant

filed a special motion to dismiss pursuant to the anti-SLAPP statute

(§ 52-196a), arguing that the plaintiff violated his first amendment rights,

right of association, and right to petition the government by filing a

fraudulent and frivolous summary process action to evict him. The trial

court denied the motion, and the defendant appealed to this court. The

plaintiff filed a motion to dismiss the defendant’s appeal, claiming that

the trial court’s denial of the defendant’s special motion to dismiss was

not an appealable final judgment. Held that this court lacked subject

matter jurisdiction over the defendant’s appeal, and, accordingly, the

appeal was dismissed: the defendant failed to assert a colorable claim

that would entitle him to an immediate review of the trial court’s denial

of his special motion to dismiss pursuant to § 52-196a because none of

the allegations in the plaintiff’s complaint was based on the defendant’s

exercise of his right of free speech, to petition the government, or of

association, as the complaint made clear that the summary process

action was predicated solely on the defendant’s alleged failure to pay

rent owed to the plaintiff and the fact that the written lease agreement

between the parties had lapsed and had not been renewed, and the

complaint did not contain any allegations about things the defendant

said or communicated or about other actions that would otherwise

implicate the defendant’s right of free speech, to petition the government,

or of association, as those terms were understood under § 52-196a;

moreover, the defendant’s allegation that the summary process action

was motivated by a complaint he had filed against the plaintiff with

the state’s Commission on Human Rights and Opportunities did not

transform the action into a claim that was based on the defendant’s

exercise of his right of free speech, to petition the government, or of

association, as required by § 52-196a.

Considered December 6, 2023—officially released March 26, 2024

Procedural History

Summary process action, brought to the Superior

Court in the judicial district of Bridgeport, Housing

Session, where the court, Cirello, J., denied the defendant’s special motion to dismiss, and the defendant

appealed to this court; thereafter, the plaintiff filed a

motion to dismiss the appeal. Appeal dismissed.

Matthew M. Hausman, in support of the motion.

Henry Berry, self-represented, in opposition to the

motion.
Opinion

CLARK, J. The defendant, Henry Berry, appeals from

the trial court’s denial of a special motion to dismiss that

he filed pursuant to Connecticut’s anti-SLAPP statute,

General Statutes § 52-196a,1

in a summary process

action brought against him by the plaintiff, Black Rock

Gardens, LLC. Before this court is the plaintiff’s motion

to dismiss the defendant’s appeal in which the plaintiff

claims that the defendant has not appealed from a final

judgment. Specifically, the plaintiff claims that the

defendant has failed to assert a colorable claim to the

protections afforded by the anti-SLAPP statute and,

consequently, pursuant to Smith v. Supple, 346 Conn.

928, 952, 293 A.3d 851 (2023), this court lacks subject

matter jurisdiction over the appeal. For the reasons

that follow, we agree with the plaintiff and dismiss the

defendant’s appeal.

We begin with the relevant facts and procedural history of this case. On July 28, 2023, the plaintiff commenced the underlying summary process action against

the defendant. In its complaint, the plaintiff alleges that

it is the owner of premises located at 293 Ellsworth

Street, Apartment 8D, in Bridgeport and that the defendant failed to make full rental payments beginning in

August, 2022, and thereafter. The plaintiff alleges that

the defendant no longer has the right or privilege to

occupy the premises and that the lease agreement

between the parties has lapsed by its terms and has

not been renewed. The complaint requests a judgment

for immediate possession of the premises and forfeiture

of the defendant’s possessions and personal effects

within the premises.

On August 1, 2023, the defendant filed his answer

denying the allegations against him and checked off or

wrote in a host of special defenses on Judicial Form

JD-HM-5, titled ‘‘Summary Process (Eviction) Answer

to Complaint,’’2

including, inter alia, that rent had been

paid; that no rent is due under Connecticut law because

of the plaintiff’s ‘‘failure to do whatever is necessary

to put and keep the premises in a fit and habitable

condition’’; that the eviction was being brought because

the defendant had contacted his landlord and/or public

officials to complain about his apartment; and that he

should not be evicted because ‘‘[there was a] violation

of contract and statute regarding entry into the apartment and [the plaintiff] has failed to remedy multiple

violations; [there was a] violation of the covenant of

quiet enjoyment; the plaintiff and [its] employees engage

in or allow harassment and infliction of emotional distress; the plaintiff has submitted fraudulent and/or misrepresented documents in various legal actions of the

defendant; the plaintiff’s actions are retaliation; [and]

the plaintiff has made false statements with respect to

material facts, circumstances, and incidents.’’
On August 7, 2023, the defendant filed a motion to

dismiss the summary process action for, inter alia, insufficiency of process and insufficiency of service of process. On August 21, 2023, the court, Cirello, J., denied

the defendant’s motion on the basis that ‘‘[t]he service

of the notice to quit, the quit date, the service of the

writ [of] summons and complaint, and the return date

on file with the court were all timely made under relevant law.’’

On September 1, 2023, the defendant proceeded to file

a special motion to dismiss pursuant to § 52-196a in

which he argued that the plaintiff ‘‘violated his first

amendment rights, right of association, and right to petition the government using the guise of a largely fraudulent and frivolous summary process to evict the defendant from his apartment rented from the plaintiff.’’ He

alleged that ‘‘[d]ocuments relating directly to the summary process contain false information; and also the

motives, purposes, and malice of the summary process

action evidence that the action was undertaken with

improper, malicious, and retaliatory purposes to intentionally harass, threaten, and disturb the defendant—

e.g., [to] upset his right of quiet enjoyment, [to] coerce

him to leave the apartment, [and to] create conditions of

precarious habitability.’’ The special motion to dismiss

also appears to have claimed that the defendant had

previously filed a complaint against the plaintiff with

Connecticut’s Commission on Human Rights and Opportunities (CHRO) alleging age discrimination. He claimed

that the ‘‘plaintiff’s summary process is not only retaliatory in violation of Connecticut statutes including landlord-tenant statutes, but notably with regard to this

special motion to dismiss, a retaliatory, hostile, threatening action against the defendant for petitioning the

government—namely, CHRO—by a complaint of age

discrimination . . . .’’

On September 14, 2023, the plaintiff filed an opposition to the defendant’s special motion to dismiss in

which it argued that ‘‘[t]his was the third motion to

dismiss filed by the defendant (who has since filed

several more), and is filed under a statute that does not

apply to summary process actions alleging nonpayment

of rent or lapse of time.’’ The plaintiff argued, inter alia,

that the present action has nothing to do with what the

defendant said or may have said in public or private and

nothing to do with public participation.

On September 20, 2023, a hearing on the special motion

to dismiss was held in conjunction with numerous other

motions to dismiss that the defendant had filed.3 The

court denied the defendant’s motion at the conclusion

of arguments. On September 25, 2023, the defendant

appealed from the court’s denial of that motion.

The question before us is whether the trial court’s

denial of the defendant’s special motion to dismiss
under the anti-SLAPP statute is an appealable final judgment. To answer that question, we begin with the relevant statutory provisions. Section 52-196a (b) provides:

‘‘In any civil action in which a party files a complaint,

counterclaim or cross claim against an opposing party

that is based on the opposing party’s exercise of its

right of free speech, right to petition the government,

or right of association under the Constitution of the

United States or the Constitution of the state in connection with a matter of public concern, such opposing party

may file a special motion to dismiss the complaint, counterclaim or cross claim.’’

Section 52-196a (e) (3) instructs that ‘‘[t]he court shall

grant a special motion to dismiss if the moving party makes

an initial showing, by a preponderance of the evidence,

that the opposing party’s complaint, counterclaim or

cross claim is based on the moving party’s exercise of

its right of free speech, right to petition the government,

or right of association under the Constitution of the

United States or the Constitution of the state in connection with a matter of public concern, unless the party

that brought the complaint, counterclaim or cross claim

sets forth with particularity the circumstances giving

rise to the complaint, counterclaim or cross claim and

demonstrates to the court that there is probable cause,

considering all valid defenses, that the party will prevail

on the merits of the complaint, counterclaim or cross

claim.’’

Our Supreme Court recently decided three companion cases addressing the issue of whether a trial court’s

denial of a special motion to dismiss under the anti-SLAPP

statute constitutes an appealable final judgment. See

Smith v. Supple, supra, 346 Conn. 929; Pryor v. Brignole, 346 Conn. 534, 536–37, 292 A.3d 701 (2023); Robinson v. V. D., 346 Conn. 1002, 1007, 293 A.3d 345 (2023).

In Smith, the principal case of the three companion

cases, our Supreme Court examined the relevant statutory text, legislative history, and analogous laws from

other jurisdictions; see Smith v. Supple, supra, 938–60;

and concluded that our ‘‘anti-SLAPP statute affords a

defendant a substantive right to avoid litigation on the

merits . . . .’’ Id., 949. It further concluded that, in

cases in which a defendant can assert a colorable claim

that a trial court’s denial of a special motion to dismiss

under that statute has placed that particular right at

risk, an immediate appeal may be taken pursuant to

the second prong of State v. Curcio, 191 Conn. 27, 31,

463 A.2d 566 (1983).4 Smith v. Supple, supra, 960.

The issue before us, therefore, is limited to whether

the defendant in the present case has asserted a colorable claim to the protections afforded by our state’s

anti-SLAPP statute, as required to obtain an immediate

review of the trial court’s denial of his special motion

to dismiss. See, e.g., Pryor v. Brignole, supra, 346 Conn.

545. To that end, ‘‘we must determine whether the defen-
dant has asserted a colorable claim that his actions, as

alleged in the [plaintiff’s] complaint, are based on his

right of free speech, to petition the government, or of

association.’’ Robinson v. V. D., supra, 346 Conn. 1008.

We conclude that the defendant has failed to assert

a colorable claim to the protections afforded by our

anti-SLAPP statute because none of the allegations in

the plaintiff’s complaint is based on the defendant’s

exercise of his right of free speech, to petition the government, or of association. In particular, a review of the

complaint makes clear that the defendant’s summary

process action was predicated solely on the defendant’s

alleged failure to pay rent owed to the plaintiff and that

the written lease agreement between the parties had

lapsed and had not been renewed. The complaint contains no allegations about things the defendant said

or communicated or about other actions that would

otherwise implicate the defendant’s right of free speech,

right to petition the government, or right of association,

as those terms are understood under the statute.5 The

defendant’s allegation that the plaintiff’s summary process action was motivated by a prior CHRO complaint

that he filed against the plaintiff does not transform the

plaintiff’s summary process action into a claim that is

‘‘based on’’ the defendant’s exercise of his right of free

speech, to petition the government, or of association, as

required by § 52-196a (b). On the contrary, in determining

whether a party has presented a colorable claim that

entitles him to the right to avoid litigation under our

anti-SLAPP statute, our Supreme Court has confined its

analysis to whether the specific allegations made in

the complaint were based on the defendant’s protected

speech or conduct. See Robinson v. V. D., supra, 346

Conn. 1008 (‘‘we must determine whether the defendant

has asserted a colorable claim that his actions, as alleged

in the plaintiffs’ complaint, are based on his right of

free speech, to petition the government, or of association’’ (emphasis added)); Smith v. Supple, supra, 346

Conn. 962 (‘‘we conclude that the defendants have asserted

a colorable claim that the conduct alleged in the complaint falls within the meaning of the phrase ‘right of

association’ ’’ (emphasis added)); Pryor v.Brignole, supra,

346 Conn. 545 (‘‘[t]he existence of the previously cited

case law affords the defendants with at least a superficially well founded claim that the conduct alleged in

the plaintiff’s complaint—namely, [the defendant’s] sending letters to ‘various news outlets and persons’ concerning the arrest and prosecution of an attorney—

could be considered conduct furthering communication

in a public forum on a matter of public concern’’ (emphasis

added)). Our Supreme Court has not sought to determine a plaintiff’s motivation for bringing claims that are,

on their face, not based on a defendant’s protected speech

or conduct.6

In the present case, none of the allegations in the

plaintiff’s complaint is based on the defendant’s exer-
cise of his right of free speech, to petition the government, or of association. We therefore conclude that the

defendant has failed to assert a colorable claim that

would entitle him to an immediate review of the trial

court’s denial of his special motion to dismiss. Consequently, this court lacks subject matter jurisdiction over

the defendant’s appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

1

‘‘SLAPP is an acronym for strategic lawsuit against public participation

. . . .’’ (Internal quotation marks omitted.) Lafferty v. Jones, 336 Conn. 332,

337 n.4, 246 A.3d 429 (2020), cert. denied, U.S. , 141 S. Ct. 2467, 209

L. Ed. 2d 529 (2021).

2 See Summary Process (Eviction) Answer to Complaint, Judicial Branch

Form JD-HM-5, available at https://www.jud.ct.gov/webforms/forms/hm005.pdf

(last visited March 14, 2024).

3 The docket reveals that the defendant had filed a host of court submissions by the September 20, 2023 hearing date, including at least five other

motions to dismiss.

4

It is well settled that ‘‘[t]he subject matter jurisdiction of our appellate

courts is limited by statute to appeals from final judgments . . . .’’ (Internal

quotation marks omitted.) Blakely v. Danbury Hospital, 323 Conn. 741, 745,

150 A.3d 1109 (2016). In Curcio, however, our Supreme Court held that

‘‘[a]n otherwise interlocutory order is appealable in two circumstances: (1)

[when] the order or action terminates a separate and distinct proceeding,

[and] (2) [when] the order or action so concludes the rights of the parties

that further proceedings cannot affect them.’’ State v. Curcio, supra, 191

Conn. 31.

5

‘‘ ‘Right of free speech’ means communicating, or conduct furthering

communication, in a public forum on a matter of public concern . . . .’’

General Statutes § 52-196a (a) (2).

‘‘ ‘Matter of public concern’ means an issue related to (A) health or safety,

(B) environmental, economic or community well-being, (C) the government,

zoning and other regulatory matters, (D) a public official or public figure,

or (E) an audiovisual work . . . .’’ General Statutes § 52-196a (a) (1).

‘‘ ‘Right to petition the government’ means (A) communication in connection with an issue under consideration or review by a legislative, executive,

administrative, judicial or other governmental body, (B) communication

that is reasonably likely to encourage consideration or review of a matter

of public concern by a legislative, executive, administrative, judicial or other

governmental body, or (C) communication that is reasonably likely to enlist

public participation in an effort to effect consideration of an issue by a

legislative, executive, administrative, judicial or other governmental body

. . . .’’ General Statutes § 52-196a (a) (3).

‘‘ ‘Right of association’ means communication among individuals who

join together to collectively express, promote, pursue or defend common

interests . . . .’’ General Statutes § 52-196a (a) (4).

6 We note that the law affords the defendant a direct mechanism to challenge the summary process action on the basis of retaliation by the plaintiff.

General Statutes § 47a-33 provides: ‘‘In any action for summary process

under this chapter or [General Statutes §] 21-80 it shall be an affirmative

defense that the plaintiff brought such action solely because the defendant

attempted to remedy, by lawful means, including contacting officials of the

state or of any town, city, borough or public agency or filing a complaint

with a fair rent commission, any condition constituting a violation of any

of the provisions of chapter 368o, or of chapter 412, or of any other state

statute or regulation or of the housing or health ordinances of the municipality wherein the premises which are the subject of the complaint lie. The

obligation on the part of the defendant to pay rent or the reasonable value

of the use and occupancy of the premises which are the subject of any such

action shall not be abrogated or diminished by any provision of this section.’’