Robinson v. V. D. ( 2023 )

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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 dis-
senting 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 her rights to free speech,
to free association, or to petition the government consti-
tutes 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 proce-
dural 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 bene-
fits, has been satisfied in the present case. The defen-
dant, 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 until resolu-
tion of the motion. The trial court, acting in its gatekeep-
ing 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. Spe-
cifically, 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.