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*********************************************** 
JOSEPH S. ELDER v. MATTHEW

KAUFFMAN ET AL.

(AC 43513)

Bright, C. J., and Alvord and Bellis, Js.

Syllabus

The plaintiff attorney sought damages from the defendant reporter, K, and

the defendant publisher, C Co., for, inter alia, defamation in connection

with articles written by K and published by C Co. The articles related

to certain a disciplinary proceeding brought against the plaintiff in the

Superior Court that resulted in his suspension from the practice of law

for one year. Our Supreme Court reversed the order of the Superior

Court on the ground that the proceeding was untimely commenced. The

plaintiff alleged in this action that articles published by the defendants

in 2015 after his suspension, and an article published in 2017 after our

Supreme Court reversed that decision, were defamatory because they

stated that he had ‘‘impersonated’’ another attorney. The trial court

granted the defendants’ special motion to dismiss the complaint filed

pursuant to statute (§ 52-196a), holding that the publications were about

a matter of public concern and that the plaintiff’s complaint was barred

by the doctrines of res judicata and collateral estoppel because he had

previously raised these claims and issues in prior litigation in federal

court and in state court. From the judgment rendered thereon, the

plaintiff appealed to this court. Held:

1. The plaintiff’s claim that the trial court erred in dismissing his complaint

on the ground that it was barred by the doctrine of res judicata, which

was based on his claim that res judicata does not apply to a special

motion to dismiss, was unavailing: the application of the doctrine of

res judicata to the present case necessarily would meet or exceed the

proof requirements of § 52-196a (e) (3) because it would establish, as

a matter of law, that the plaintiff could not establish that there was

probable cause that he would prevail on the merits of the complaint;

moreover, if the plaintiff unsuccessfully litigated in his prior actions an

issue necessary to his success in this action, he would be precluded

from relitigating that issue and, therefore, could not establish probable

cause that he would prevail in this action; consequently, collateral estoppel was an appropriate defense to consider in the context of a § 52-

196a motion to dismiss.

2. The doctrine of collateral estoppel barred the plaintiff’s claims: although

this court generally agreed with the plaintiff that res judicata did not

apply to the allegations of his complaint concerning the article published

in 2017, because those allegations related to an article published two

years after the articles at issue in previous litigation, collateral estoppel

barred his claims because the issues presented in the complaint were

substantially identical to issues previously litigated before the federal

and state courts that decided his claims; in his complaint, the plaintiff

alleged that the 2017 publication used the word ‘‘impersonation’’ to

describe his conduct and that the use of this word evidenced malice,

and, in his prior complaints in both federal and state courts, he had

also alleged that the use of the word impersonation in the 2015 publications was defamatory, and both of those courts rejected that claim,

holding that such a description of the plaintiff’s conduct was fair and

accurate.

3. The plaintiff could not prevail on his claim that § 52-196a was unconstitutional as applied in this case because its application infringed on his

state constitutional rights to redress and a trial by jury; this court, having

recently addressed substantially the same claim in Elder v. 21st Century

Media Newspaper, LLC (204 Conn. App. 414), adopted the reasoning

contained therein.

Argued January 13—officially released May 25, 2021

Procedural History

Action to recover damages for, inter alia, defamation,
and for other relief, brought to the Superior Court in

the judicial district of Hartford, where the court, Moukawsher, J., granted the defendants’ special motion to

dismiss and rendered judgment thereon, from which

the plaintiff appealed to this court. Affirmed.

Joseph S. Elder, self-represented, the appellant

(plaintiff).

William S. Fish, Jr., with whom was Alexa T. Millinger, for the appellees (defendants).
Opinion

BRIGHT, C. J. The plaintiff, Joseph S. Elder, appeals

from the judgment of the trial court dismissing, on the

grounds of res judicata and collateral estoppel, his complaint alleging defamation and invasion of privacy

brought against the defendants, Matthew Kauffman and

The Hartford Courant Company, LLC (Courant). On

appeal, the plaintiff claims that the court improperly

granted the defendants’ special motion to dismiss

because (1) res judicata is not applicable to the antiSLAPP1

statute, General Statutes § 52-196a,2(2) res judicata is not applicable to this case, and (3) § 52-196a

is unconstitutional as applied in this case because its

application infringed on his state constitutional rights

to redress and to a trial by a jury. We affirm the judgment

of the trial court.

The following facts and procedural history are relevant to our resolution of the plaintiff’s appeal. The plaintiff, who is an attorney licensed to practice law in Connecticut, brought this action against the Courant and

Kauffman, who is a reporter at the Courant. In his two

count complaint, the plaintiff alleged against both

defendants claims of defamation and ‘‘false light’’ invasion of privacy. The allegations in the complaint stem

from the defendants’ publication of articles related to

disciplinary proceedings that had been brought in the

Superior Court against the plaintiff on the basis of his

giving a false name to the police (presentment). The

presentment resulted in the Superior Court suspending

the plaintiff from the practice of law for one year. The

plaintiff, thereafter, appealed from the order of suspension, and our Supreme Court reversed the order of

the Superior Court specifically on the ground that the

presentment had been untimely commenced. See Disciplinary Counsel v. Elder, 325 Conn. 378, 382, 159 A.3d

220 (2017). In his complaint in the present case, the

plaintiff alleged that articles published by the defendants in 2015, after the Superior Court rendered its

decision suspending the plaintiff from the practice of

law for one year, and an article published after our

Supreme Court reversed that decision in 2017 (2017

publication), were defamatory and portrayed him in

a false light by stating that he had ‘‘ ‘impersonated’ ’’

another attorney.

In response to the plaintiff’s complaint, the defendants, pursuant to § 52-196a, filed a special motion to

dismiss the complaint. On August 27, 2019, the court,

Moukawsher, J., granted the defendants’ motion, concluding that the publications were about matters of

public concern and that the plaintiff’s complaint was

barred by the doctrines of res judicata and collateral

estoppel because the plaintiff had raised these claims

and issues, or could have raised these claims and issues,

previously in federal court; see Elder v. Tronc, Inc.,

United States District Court, Docket No. 3:17-CV-01285
(WWE) (D. Conn. July 2, 2018) (claims of defamation

and invasion of privacy dismissed on ground that fair

and accurate publications discussing plaintiff’s disciplinary suspension were protected by fair report privilege); and in state court. See Elder v. 21st Century

Media Newspaper, LLC, Superior Court, judicial district

of Hartford, Docket No. CV-17-6081368-S (February 14,

2019), which recently was affirmed by this court in

Elder v. 21st Century Media Newspaper, LLC, 204

Conn. App. 414, 425–26, A.3d (2021) (after comparing publications to suspension decision, this court

determined, inter alia, that trial court correctly concluded that publications were protected by fair report

privilege, that use of word ‘‘ ‘impersonated’ ’’ to

describe plaintiff’s conduct was based in fact, and that

plaintiff failed to provide support for assertion that fair

report privilege is inconsistent with article first, § 10,

of Connecticut constitution). Following the plaintiff’s

motion to reargue, which was denied by the trial court,

the plaintiff commenced the present appeal.

I

The plaintiff claims that the trial court erred in dismissing his complaint on the ground that it was barred

by the doctrine of res judicata. He argues that res judicata is not applicable to a special motion to dismiss

filed pursuant to § 52-196a, and that res judicata may

be asserted only as a special defense. We disagree.

‘‘Statutory construction . . . presents a question of

law over which our review is plenary.’’ (Internal quotation marks omitted.) Larmel v. Metro North Commuter

Railroad Co., 200 Conn. App. 660, 670, 240 A.3d 1056,

cert. granted, 335 Conn. 972, 240 A.3d 676 (2020).

‘‘Where a party files a complaint . . . against an opposing party that is based upon the opposing party’s exercise of its right of free speech, right to petition the

government, or right of association under the federal

or state constitution in connection with a matter of

public concern, the opposing party may file a special

motion to dismiss. A special motion to dismiss is to be

filed no later than thirty days after the return date of

the complaint or the filing of such counterclaim or

[cross claim].’’ T. Merritt, 16A Connecticut Practice

Series: Elements of an Action (2020) § 14:13, pp. 226–27;

see also Practice Book § 10-30.

We agree with the plaintiff that res judicata properly

is raised by means of a special defense and that it

generally is not raised by a motion to dismiss. See Larmel v. Metro North Commuter Railroad Co., supra, 200

Conn. App. 670 n.9 (‘‘[t]he proper procedure by which

to assert that a claim is barred by the doctrine of res

judicata is to plead it as a special defense’’). A special

motion to dismiss filed pursuant to § 52-196a, however,

is not a traditional motion to dismiss based on a jurisdictional ground. It is, instead, a truncated evidentiary

procedure enacted by our legislature in order to achieve
a legitimate policy objective, namely, to provide for

a prompt remedy. See Fishman v. Middlesex Mutual

Assurance Co., 4 Conn. App. 339, 355–56, 494 A.2d 606,

cert. denied, 197 Conn. 806, 499 A.2d 57 (1985), and

cert. denied, 197 Conn. 807, 499 A.2d 57 (1985). It is, in

this respect, similar to a motion for summary judgment.

Pursuant to § 52-196a, ‘‘[w]hen ruling on a special

motion to dismiss, the court shall consider pleadings

and supporting and opposing affidavits of the parties

attesting to the facts upon which liability or a defense,

as the case may be, is based.’’ General Statutes § 52-

196a (e) (2). A special motion to dismiss shall be granted

‘‘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 . . . in connection with

a matter of public concern, unless the party that brought

the complaint . . . sets forth with particularity the circumstances giving rise to the complaint . . . 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 . . . .’’ General Statutes

§ 52-196a (e) (3). ‘‘The legal idea of probable cause is

a bona fide belief in the existence of the facts essential

under the law for the action and such as would warrant

a man of ordinary caution, prudence and judgment,

under the circumstances, in entertaining it.’’ (Emphasis

omitted; internal quotation marks omitted.) Three S.

Development Co. v. Santore, 193 Conn. 174, 175, 474

A.2d 795 (1984). Proof of probable cause is not as

demanding as proof by preponderance of the evidence.

See TES Franchising, LLC v. Feldman, 286 Conn. 132,

137, 943 A.2d 406 (2008).

Whether res judicata properly may be raised as a

ground for a § 52-196a motion to dismiss depends on

whether the establishment of res judicata in the particular case could meet the proof requirements of § 52-196a

(e) (3). In other words, the application of res judicata

to the plaintiff’s cause of action necessarily would have

to establish, ‘‘by a preponderance of the evidence, that

the [plaintiff’s] . . . complaint . . . is based on the

moving party’s exercise of its right of free speech . . .

in connection with a matter of public concern’’ and that

the plaintiff failed to establish ‘‘that there is probable

cause, considering all valid defenses, that [he] will prevail on the merits of the complaint . . . .’’ General Statutes § 52-196a (e) (3).

Although § 52-196a (e) (3) requires that the plaintiff

only establish probable cause that he will prevail, we

conclude that the application of the doctrine of res

judicata, if properly applied to the present case, necessarily would meet or exceed the proof requirements of

§ 52-196a (e) (3) because it would establish, as a matter

of law, that the plaintiff would be unable to establish

‘‘that there is probable cause, considering all valid
defenses, that [he] will prevail on the merits of the

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

(3). Put another way, if the plaintiff failed to establish

his entitlement to relief in prior actions in which he

asserted or could have asserted the same claims

brought in this action, he has no possibility of succeeding in this action and, therefore, cannot establish

probable cause that he will prevail on the merits of his

complaint. Accordingly, we are not persuaded that res

judicata cannot be argued in support of a special motion

to dismiss filed pursuant to § 52-196a.

The same analysis applies to the doctrine of collateral

estoppel, or issue preclusion, on which the court also

relied in granting the defendants’ special motion to dismiss. ‘‘[C]ollateral estoppel precludes a party from relitigating issues and facts actually and necessarily determined in an earlier proceeding between the same

parties or those in privity with them upon a different

claim. . . . An issue is actually litigated if it is properly

raised in the pleadings or otherwise, submitted for

determination, and in fact determined. . . . An issue

is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been

validly rendered. . . . To assert successfully the doctrine of issue preclusion, therefore, a party must establish that the issue sought to be foreclosed actually was

litigated and determined in the prior action between

the parties or their privies, and that the determination

was essential to the decision in the prior case.’’ (Internal

quotation marks omitted.) Doyle v. Universal Underwriters Ins. Co., 179 Conn. App. 9, 14, 178 A.3d 445

(2017). If the plaintiff unsuccessfully litigated in the

prior actions an issue necessary to his success in this

action, he is precluded from relitigating that issue and,

therefore, cannot establish probable cause that he will

prevail in this action. Consequently, collateral estoppel

is an appropriate defense to consider in the context of

a special motion to dismiss filed pursuant to § 52-196a.

II

The plaintiff next claims that, even if we determine

that res judicata could be applicable to § 52-196a, the

court in the present case improperly granted the defendants’ special motion to dismiss because res judicata

is not applicable under the particular facts of this case.

The defendants argue that both res judicata and collateral estoppel apply in this case. We conclude that collateral estoppel bars the plaintiff’s claims.

The following background information, as recently

set forth in Elder v. 21st Century Media Newspaper,

LLC, supra, 204 Conn. App. 414, is relevant to our analysis. ‘‘On August 1, 2015, the Hartford Courant published

an article titled, ‘Attorney Suspended for a Year.’ . . .

That article was written by . . . Kauffman, and it summarized the suspension decision. The opening paragraph read, ‘Joseph Elder, a Hartford attorney who
impersonated a fellow lawyer 11 years ago, spawning

a long-running feud between the pair, will be barred

from practicing law for a year, a Superior Court judge

has ruled.’ . . .

‘‘On May 2, 2017, nearly two years after the publication of the 2015 articles, our Supreme Court reversed

the suspension decision on statute of limitations

grounds. See Disciplinary Counsel v. Elder, [supra,

325 Conn. 393]. Kauffman wrote an additional article

detailing the Supreme Court’s decision. . . . In August,

2017, the plaintiff commenced [an] action by way of a

nineteen count complaint dated July 27, 2017, against

ten defendants claiming that they defamed him by publishing the 2015 articles. Specifically, the plaintiff

argued that the 2015 articles’ use of the word ‘impersonating’ to describe his actions was ‘false, misleading and

defamatory,’ and that the 2015 articles failed to ‘mention

that the caller intentionally lied about his identity and

that he was posing as a drug dealing criminal defendant,

never identifying himself as an investigating police officer,’ which, the plaintiff argued, ‘painted an incomplete

and misleading account of the incident . . . .’ The

plaintiff claimed that he ‘sustained damages, and continues to sustain damages, on account of said publications.’ The plaintiff filed an amended complaint dated

September 27, 2017, in which he brought counts against

each defendant for defamation and false light invasion

of privacy. The counts alleged that (1) the defendants

published substantially similar defamatory statements

in the 2015 articles when reporting on the disciplinary

actions and the suspension decision and (2) the 2015

articles constituted an invasion of his privacy.’’ (Citations omitted; footnotes omitted.) Elder v. 21st Century

Media Newspaper, LLC, supra, 204 Conn. App. 417–18.

The Superior Court rendered summary judgment on

behalf of the defendants in that action, holding that the

fair report privilege barred the plaintiff’s claims. Id.,

418. This court recently affirmed the judgment of the

Superior Court. Id., 432.

In the present case, the plaintiff again alleged defamation and invasion of privacy in the defendants’ reporting

of the same incident, but he added allegations regarding

the 2017 publication, an article written by Kauffman

and published by the Courant concerning the May 2,

2017 Supreme Court decision that he had omitted from

his previous cases. See id., 418 n.3 (noting that plaintiff

did not allege that Kauffman’s article regarding May 2,

2017 decision was defamatory).

The trial court in the present case reviewed the allegations in the plaintiff’s complaint and compared them

with the federal and state cases in which the plaintiff

previously had alleged defamation and invasion of privacy on the basis of the 2015 publications, which discussed the disciplinary proceedings that had been

brought against him. See Elder v. Tronc, Inc., supra,
United States District Court, Docket No. 3:17-CV-01285

(WWE); Elder v. 21st Century Media Newspaper, LLC,

supra, Superior Court, Docket No. CV-17-6081368-S. The

court recognized that the present complaint also contained an allegation that the defendants, in the 2017

publication, again, used the word ‘‘ ‘impersonat[ed]’ ’’

to describe the conduct of the plaintiff in identifying

himself to the police as someone else, namely, Attorney

Wesley Spears, in addition to setting forth allegations

concerning the 2015 publications that had been the

subject of the previous federal and state cases.

The court discussed the fact that both the federal

and the state cases were commenced after the 2017

publication, but noted that the plaintiff had failed to

include allegations concerning that publication in his

previous complaints and that both decisions, although

not citing directly to § 52-196a, held that the 2015 publications were a matter of public concern protected by

the fair report privilege. See Elder v. Tronc, Inc., supra,

United States District Court, Docket No. 3:17-CV-01285

(WWE) (holding, in part, that ‘‘defendants’ publications

are protected by the fair report privilege’’); Elder v.

21st Century Media Newspaper, LLC, supra, Superior

Court, Docket No. CV-17-6081368-S (same); see also

Elder v. 21st Century Media Newspaper, LLC, supra,

204 Conn. App. 424–27 (same). The court then held

that, as had been determined in the previous cases, this

‘‘is a matter of public concern covered by the statute,’’

that the ‘‘issues are settled now,’’ and that the plaintiff’s

‘‘claims in this case are barred by the doctrine of res

judicata or claim preclusion.’’ Accordingly, the court

granted the defendants’ special motion to dismiss the

plaintiff’s complaint.

The plaintiff now alleges that the court improperly

dismissed his complaint on res judicata grounds

because the ‘‘current action arises out of a newspaper

article published [on] April 26, 2017, in the [Courant]

. . . concerning a decision of the Connecticut Supreme

Court which reversed the July 29, 2015 Superior Court

decision,’’ and that the complaint now includes allegations of malice.3 The plaintiff does not argue that the

court improperly ruled that the allegations involving

the 2015 publication are barred by the doctrine of res

judicata. Rather, he focuses only on the allegations

regarding the 2017 publication. The defendants argue

that the court correctly concluded that any claims

regarding the 2017 publication are barred both by claim

preclusion and issue preclusion because the claims

could have been raised in the prior litigation and

because the resolution of the issue of whether the publication of the 2015 articles was protected by the fair

report privilege applies to the virtually identical 2017

publication.4

‘‘Under the doctrine of res judicata, a final judgment,

when rendered on the merits, is an absolute bar to a
subsequent action, between the parties or those in privity with them, upon the same claim.’’ (Internal quotation

marks omitted.) Smigelski v. Kosiorek, 138 Conn. App.

728, 735, 54 A.3d 584 (2012), cert. denied, 308 Conn.

901, 60 A.3d 287 (2013). ‘‘Generally, for res judicata to

apply, four elements must be met: (1) the judgment

must have been rendered on the merits by a court of

competent jurisdiction; (2) the parties to the prior and

subsequent actions must be the same or in privity; (3)

there must have been an adequate opportunity to litigate

the matter fully; and (4) the same underlying claim must

be at issue. . . . Before collateral estoppel applies

. . . there must be an identity of issues between the

prior and subsequent proceedings. To invoke collateral

estoppel the issues sought to be litigated in the new

proceeding must be identical to those considered in the

prior proceeding.’’ (Citation omitted; internal quotation

marks omitted.) Rockwell v. Rockwell, 196 Conn. App.

763, 769, 230 A.3d 889 (2020). ‘‘[T]he applicability of

res judicata or collateral estoppel presents a question

of law over which we employ plenary review.’’ (Internal

quotation marks omitted.) Id.

We generally agree with the plaintiff that res judicata

does not apply to the allegations concerning the 2017

publication, authored by Kauffman, because those allegations do not involve the same underlying claim set

forth in the previous cases.5 See id. (fourth element of

res judicata requires that ‘‘the same underlying claim

. . . be at issue’’ (internal quotation marks omitted)).

Those allegations relate to an article published two

years after the articles at issue in the previous litigation.6

We disagree, however, that collateral estoppel does not

apply in the present case.

In his complaint, the plaintiff alleged that the 2017

publication again used the word ‘‘impersonation’’ to

describe his conduct in identifying himself as someone

else. He also alleged that the use of this word evidenced

malice. In his previous complaints in both federal and

in state court, the plaintiff had alleged that the use of

the word impersonation in the 2015 publications was

defamatory and an invasion of privacy. Both the federal

District Court and this court rejected that claim and

held that such a description of the plaintiff’s conduct

was ‘‘fair and accurate.’’ See Elder v. Tronc, Inc., supra,

United States District Court, Docket No. 3:17-CV-01285

(WWE) (holding, in part, that ‘‘[t]he subject articles,

which describe Elder as having impersonated another

lawyer, were substantially fair and accurate reports of

the Superior Court decision, and the headlines were fair

representations of the articles’’); Elder v. 21st Century

Media Newspaper, LLC, supra, 204 Conn. App. 427 (articles’ representations that plaintiff ‘‘ ‘impersonat[ed]’ ’’

another lawyer were substantially accurate).

In Elder v. 21st Century Media Newspaper, LLC,

supra, 204 Conn. App. 427–28, this court also discussed
the plaintiff’s allegation of malice set forth in the complaint in that case. This court held that, because ‘‘the

2015 articles were fair and accurate abridgements of

the suspension decision, the plaintiff’s claim of malice

fails as a matter of law.’’ Id., 428.

Because the issues presented in the current complaint substantially are identical to the issues previously

litigated and decided by both the federal and the state

courts; see Rockwell v. Rockwell, supra, 196 Conn. App.

769 (‘‘issues sought to be litigated in the new proceeding

must be identical to those considered [and decided] in

the prior proceeding’’ (internal quotation marks omitted)); we conclude that the plaintiff’s complaint is

barred by the doctrine of collateral estoppel.

III

The plaintiff’s final claim is that § 52-196a is unconstitutional as applied in this case because its application

infringed on his state constitutional rights to redress

and to a trial by a jury. Having recently addressed substantially the same claim in Elder v. 21st Century Media

Newspaper, LLC, supra, 204 Conn. App. 428–32, we

adopt the reasoning contained therein and reject the

plaintiff’s claim.

The judgment is affirmed.

In this opinion the other judges concurred.

1

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

the ‘distinctive elements of [which] are (1) a civil complaint (2) filed against

a nongovernment individual (3) because of their communications to government bodies (4) that involves a substantive issue of some public concern.

. . . The purpose of a SLAPP suit is to punish and intimidate citizens who

petition state agencies and have the ultimate effect of chilling any such

action.’ ’’ Lafferty v. Jones, 336 Conn. 332, 337 n.4, 246 A.3d 429 (2020),

cert. denied, U.S. , S. Ct. , L. Ed. 2d (2021).

2 General Statutes § 52-196a provides in relevant part: ‘‘(b) 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.

‘‘(c) Any party filing a special motion to dismiss shall file such motion

not later than thirty days after the date of return of the complaint, or the

filing of a counterclaim or cross claim described in subsection (b) of this

section. The court, upon a showing of good cause by a party seeking to file

a special motion to dismiss, may extend the time to file a special motion

to dismiss.

‘‘(d) The court shall stay all discovery upon the filing of a special motion

to dismiss. The stay of discovery shall remain in effect until the court grants

or denies the special motion to dismiss and any interlocutory appeal thereof.

Notwithstanding the entry of an order to stay discovery, the court, upon

motion of a party and a showing of good cause, or upon its own motion,

may order specified and limited discovery relevant to the special motion

to dismiss.

‘‘(e) (1) The court shall conduct an expedited hearing on a special motion

to dismiss. . . .

‘‘(2) When ruling on a special motion to dismiss, the court shall consider

pleadings and supporting and opposing affidavits of the parties attesting to

the facts upon which liability or a defense, as the case may be, is based.

‘‘(3) The 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.

‘‘(4) The court shall rule on a special motion to dismiss as soon as practicable.

‘‘(f) (1) If the court grants a special motion to dismiss under this section,

the court shall award the moving party costs and reasonable attorney’s fees,

including such costs and fees incurred in connection with the filing of the

special motion to dismiss.

‘‘(2) If the court denies a special motion to dismiss under this section

and finds that such special motion to dismiss is frivolous and solely intended

to cause unnecessary delay, the court shall award costs and reasonable

attorney’s fees to the party opposing such special motion to dismiss.

‘‘(g) The findings or determinations made pursuant to subsections (e) and

(f) of this section shall not be admitted into evidence at any later stage of

the proceeding or in any subsequent action. . . .’’

3 The plaintiff also argues that the court made no findings that his complaint was based on the defendants’ exercise of their right of free speech

in connection with a matter of public concern. This argument requires little

discussion. It was unnecessary for the court to explicitly find that a reporter

and a newspaper’s publication of a story reporting on a court proceeding

constitutes the exercise of free speech. Such reporting is quintessential

free speech. In addition, the court explicitly stated that the disciplinary

proceeding on which the defendants reported ‘‘is a matter of public concern

covered by the statute.’’ It is indisputable that the public has an interest in

being informed of the outcome of disciplinary proceedings involving attorneys licensed to practice law in this state.

4 Although the trial court stated that the plaintiff’s ‘‘claims in this case

are barred by the doctrine of res judicata or claim preclusion,’’ it also

specifically stated that the ‘‘issues are settled now,’’ and that the plaintiff

could have brought these claims in his previous cases. We read the court’s

decision as holding that the complaint in this case is barred by both the

doctrine of res judicata and the doctrine of collateral estoppel. ‘‘The construction of a judgment is a question of law for the court. . . . As a general

rule, judgments are to be construed in the same fashion as other written

instruments. . . . The determinative factor is the intention of the court as

gathered from all parts of the judgment. . . . The interpretation of a judgment may involve the circumstances surrounding the making of the judgment. . . . Effect must be given to that which is clearly implied as well as

to that which is expressed. . . . The judgment should admit of a consistent

construction as a whole.’’ (Emphasis in original; internal quotation marks

omitted.) Cimmino v. Marcoccia, 332 Conn. 510, 522, 211 A.3d 1013 (2019).

5 We note that the defendants did not argue in their special motion to

dismiss that res judicata barred the plaintiff’s claims based on the 2017

publication. Instead, before the trial court, they relied solely on the doctrine

of collateral estoppel as to those claims.

6 Because we conclude that collateral estoppel applies to bar the allegations regarding the 2017 publication, we also conclude that it is unnecessary

to address the court’s conclusion that res judicata barred the plaintiff’s

complaint because he could have brought these claims in his previous cases.