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*********************************************** 
PRYOR v. BRIGNOLE—DISSENT

D’AURIA, J., with whom ECKER, J., joins, dissenting.

Today, in Smith v. Supple, 346 Conn. , A.3d

(2023), one of two companion cases to the present case

that we also decide today, a majority of this court holds

that an appeal from the denial of a special motion to

dismiss filed pursuant General Statutes § 52-196a, our

anti-SLAPP statute, constitutes an appealable final judgment under the second prong of State v. Curcio, 191

Conn. 27, 31, 463 A.2d 566 (1983), if the special motion

to dismiss is premised on a ‘‘colorable claim’’ that the

underlying cause of action is based on the defendants’

exercise of their rights to free speech, to free association, or freedom to petition the government. Smith v.

Supple, supra, . I dissented in Smith because I do

not interpret § 52-196a to grant either a right to an

immediate appeal, a right to immunity from suit, or

any analogous right not to proceed to trial before an

appellate court has reviewed the trial court’s gatekeeping determination. In that dissent, I detailed not just my

disagreement with the majority’s statutory construction

analysis—especially its interpretation of the nature of

the right § 52-196a creates—but also my belief that an

appeal of that gatekeeping ruling, on a record assembled in an expedited fashion under the statute, does

not permit the level of judicial scrutiny often required to

adjudicate weighty constitutional issues at the appellate

level, especially such intensely fact based issues as

whether statements were made in a ‘‘public forum’’ or

on a matter of ‘‘public concern.’’ Id., (D’Auria, J.,

dissenting). Therefore, in my view, the denial of these

motions should not constitute appealable final judgments.1 See id.

My disagreement with the majority in Smith was also

premised, in no small part, on my belief that the colorable claim standard the majority established in that

case is such a low bar as to be essentially no bar at all,

permitting appeals from the denial of virtually every

special motion to dismiss. Any illusions that the colorable claim standard will provide the Appellate Court—

where, in the first instance, these interlocutory appeals

will almost always be filed and any final judgment challenges resolved—with a tool to bat aside and shortcircuit appeals that have little hope of prevailing are,

in my view, dashed by the majority’s determination in

the present case that the Appellate Court improperly

dismissed the defendants’ appeal and that, therefore,

even this appeal will have to be briefed, argued, and

decided before the parties return to the trial court.

The plaintiff, J. Xavier Pryor, brought this action

against the defendants, Timothy Brignole and Brignole

Bush & Lewis, LLC, claiming that an anonymous letter

Brignole sent to various news outlets about the plaintiff
breached the nondisparagement provision of their settlement agreement and caused the plaintiff to sustain

(1) harm to his reputation and interests, (2) economic

damages, and (3) the loss of the benefit of the settlement

agreement. Both defendants filed special motions to

dismiss the action as a SLAPP suit pursuant to § 52-

196a, contending that the plaintiff’s breach of contract

claims were based on Brignole’s ‘‘right of free speech

in connection with a matter of public concern . . . .’’

The trial court denied the defendants’ motions, concluding that, because Brignole had denied sending the letters at issue, the defendants had failed to satisfy their

‘‘initial burden’’ under § 52-196a (e) (3) of showing, by

a preponderance of the evidence, that they were being

sued as a result of Brignole’s exercise of his free speech

rights. In other words, the trial court determined that

the defendants, having denied that Brignole sent the

letters, could not avail themselves of the statute’s protections because they could not demonstrate that they

were being sued for the exercise of their first amendment rights insofar as there was no such exercise

according to them. They therefore had not invoked the

special motion procedure afforded under § 52-196a for

its intended purpose: to protect those claiming they had

been sued for exercising their first amendment rights.

The defendants filed separate appeals with the Appellate Court, and, without opinion, the Appellate Court

dismissed the appeals for lack of a final judgment. As

I indicated previously, I would hold that the Appellate

Court properly dismissed the appeals because I do not

believe that the legislature intended to provide either

a statutory right to appeal the ruling or any kind of

right that would satisfy the second prong of Curcio.

2

The majority, however, holds that the defendants

have asserted ‘‘a colorable claim that Brignole’s conduct, as alleged in the plaintiff’s complaint, is based on

the exercise of his ‘right of free speech,’ as that term

has been defined by our legislature in § 52-196a (a) (2).’’

The majority’s holding means that the defendants can

have their cake and eat it, too. That is, Brignole can

deny that he disparaged the plaintiff but can still stop

his lawsuit in its tracks and take advantage of a procedure by which the trial court must give priority to the

defendants’ motions. See General Statutes § 52-196a (e)

(1) (‘‘[t]he court shall conduct an expedited hearing

on a special motion to dismiss’’). And, having been

unsuccessful, the defendants can perpetuate this special treatment by taking a rarely afforded interlocutory

appeal of the denials of their special motions to dismiss,

preventing the plaintiff from pursuing his case for as

long as the appellate process takes. The plaintiff must

hurry up and wait for someone who actually denies

engaging in constitutionally protected speech at all.

The majority’s only support for this proposition is

that ‘‘courts in [two] other jurisdictions presented with
similarly worded anti-SLAPP statutes have also considered the merits of special motions to dismiss, even in

cases in which the defendant has denied making all or

some of the underlying statements alleged.’’ The majority goes on to state: ‘‘Because the issue before us is

limited to whether the defendants in the present case

have 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 their special motions to dismiss under the second

prong of Curcio, we need not determine whether any

of the foregoing persuasive authority is either factually

distinguishable or legally correct.’’ (Emphasis omitted.)

The difficulty I have with the majority’s approach—

which provides a procedural advantage to defendants

for which there is no analogue for plaintiffs—is similar

to the difficulty I had with the majority’s interpretation

of a different part of the statute in Smith. That is, in

its zeal to examine precedents of other state courts and

follow suit, the majority does not conduct any kind

of analysis of Connecticut’s anti-SLAPP statute, under

Connecticut’s own legal principles (including, specifically, General Statutes § 1-2z), to determine if § 52-196a

even arguably supports the majority’s contention that

a defendant may deny making the alleged statements—

a defense that does not involve any constitutional

rights—while taking advantage of the benefits afforded

under § 52-196a. Irrespective of what courts in other

states have held, once we have properly construed § 52-

196a, we might conclude that its protections do not even

colorably extend to a defendant who denies making a

statement at all.

Under a proper § 1-2z analysis, for the defendants to

succeed on their special motions to dismiss under § 52-

196a, they must have raised in their motions a defense

that their actions constituted protected speech. Specifically, § 52-196a (b) provides in relevant part that, ‘‘[i]n

any civil action in which a party files a complaint . . .

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

. . . .’’ Also, subsection (e) (3) of § 52-196a directs that

the court ‘‘shall’’ grant the motion if the moving party

‘‘makes an initial showing, by a preponderance of the

evidence, that the opposing party’s complaint . . . is

based on the moving party’s exercise of its right of free

speech, right to petition the government, or right of

association . . . .’’

At least arguably, the language of § 52-196a (b) indicates that a defendant has a right to file a special motion

to dismiss only when the underlying action is based on

the defendant’s right of free speech, right to petition
the government, or right of association. Similarly, the

plain language of subsection (e) (3) suggests that a

defendant must raise and establish by a preponderance

of the evidence that the plaintiff’s action violates his

first amendment rights. Although the defendants in the

present case did raise a first amendment defense in

their special motions to dismiss, they also raised as their

main defense that Brignole did not make the alleged

statements. Although it is standard and acceptable procedure for parties to plead and argue in the alternative,

§ 52-196a creates a special proceeding that the statute

makes very clear is reserved only for those invoking

constitutional rights that are imperiled. It is thus at least

arguable under the statutory language that § 52-196a

does not apply to defendants who contest making the

statements at issue. If true, then a plaintiff’s own constitutional right—of access to courts—would be unnecessarily compromised in favor of those whom the statute

does not protect. I see no impediment to deciding that

issue in this certified appeal, even as a matter of whether

the defendants have a colorable claim.

Accordingly, for the reasons detailed in my dissent

in Smith, and for the reasons discussed in this opinion,

I respectfully dissent.3

1 Rather, I interpret § 52-196a as granting a new procedural right, entitling

the defendants to raise as early as possible in the litigation their preexisting

right to immunity from liability when the underlying defense is premised

on their exercise of a first amendment right or a state constitutional analogue.

The defendants had the right to file a special motion to dismiss early in the

litigation process, with discovery and its associated costs and burdens stayed

until the trial court resolved the special motion. See Smith v. Supple, supra,

346 Conn. (D’Auria, J., dissenting).

2 As I indicated in my dissent in Smith, under my interpretation of the

statutory right at issue, the defendants have received the intended benefits

of § 52-196a. See Smith v. Supple, supra, 346 Conn. (D’Auria, J., dissenting). The trial court, acting in its gatekeeping function, considered the

merits of the underlying lawsuit, determining that the defendants had failed

to ‘‘ ‘[make] an initial showing, by a preponderance of the evidence,’ ’’ establishing that the plaintiff brought the underlying lawsuit abusively or frivolously to chill the defendants’ right to free speech. More specifically, the

trial court ruled that nothing in the record demonstrated that Brignole had

actually exercised his right to free speech. Thus, the defendants, ‘‘early in

the process,’’ had the opportunity to ‘‘try to dismiss a frivolous or abusive

claim that has no merit’’ and did not have to incur significant costs of

litigation until they received a determination on their motion. (Internal

quotation marks omitted. ) Lafferty v. Jones, 336 Conn. 332, 382 n.36, 246

A.3d 429 (2020), cert. denied, U.S. , 141 S. Ct. 2467, 209 L. Ed. 2d

529 (2021).

3

I also disagree with the rescript in this case. I would not saddle the

Appellate Court with a remand and ask it to decide, even in the first instance,

the several novel issues that the majority’s approach to our statute creates

in a case such as this. For one reason, we are going to have to resolve these

questions anyhow at some point. Moreover, if it turns out that the trial court

properly denied the special motions to dismiss, the plaintiff’s action has

already been delayed almost three years.