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ROBINSON v. V. D.—DISSENT

D’AURIA, J., with whom ECKER and ALEXANDER,

Js., join, dissenting. For the reasons stated in my dissenting opinion in one of the two companion cases we

also decide today; see Smith v. Supple, 346 Conn. 928,

965, A.3d (2023) (D’Auria, J., dissenting); I do

not agree with the majority’s conclusion that the denial

of a special motion to dismiss asserting a colorable

claim that the underlying cause of action is based on

a defendant’s exercise of his or herrights to free speech,

to free association, orto petition the government constitutes an appealable final judgment. Specifically, as I

explained in detail in my dissent in Smith, I do not

interpret General Statutes § 52-196a, our anti-SLAPP

statute, as granting a right to an immediate appeal. Nor

do I interpret § 52-196a as granting a right to immunity

from suit, and thus I do not agree with the majority

that the denial of a colorable claim to the protections

afforded by § 52-196a constitutes an appealable final

judgment under the second prong of State v. Curcio,

191 Conn. 27, 31, 463 A.2d 566 (1983). Accordingly, I

respectfully dissent.

Rather, I interpret § 52-196a as granting a new procedural right, entitling the defendant to raise as early as

possible in the litigation his or her preexisting right to

immunity from liability when the underlying defense is

premised on his or her exercise of a first amendment

right or a right under a state constitutional analogue.

The right to this procedure, and its corresponding benefits, has been satisfied in the present case. The defendant, V. D., had the right to file a special motion to

dismiss early in the litigation process, with discovery

and its associated costs and burdens stayed untilresolution of the motion. The trial court, acting in its gatekeeping function, considered the merits of the underlying

lawsuit, determining that the defendant had failed to

establish, by a preponderance of the evidence, that the

plaintiffs, Michael Robinson and Mary Robinson, brought

the underlying lawsuit abusively or frivolously in an

attempt to chill the defendant’s rights to free speech,

to free association, or to petition the government. Specifically, the trial court found nothing in the record

from which it could find that the defendant’s conduct

was a matter of public concern. Thus, the defendant,

‘‘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 the costs of litigation until

he received a determination on his 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). Therefore,

I would dismiss the defendant’s appeal for lack of a

final judgment.

Accordingly, I respectfully dissent.