Pryor v. Brignole ( 2023 )


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    PRYOR v. BRIGNOLE—DISSENT
    D’AURIA, J., with whom ECKER, J., joins, dissenting.
    Today, in Smith v. Supple, 
    346 Conn. 928
    ,         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 judg-
    ment 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 associa-
    tion, or freedom to petition the government. Smith v.
    Supple, supra, 930; see id., 960. 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 gate-
    keeping determination. In that dissent, I detailed not
    just my disagreement with the majority’s statutory con-
    struction 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. See id., 966,
    971–72, 1001–1002 (D’Auria, J., dissenting). Therefore,
    in my view, the denial of these motions should not
    constitute appealable final judgments.1 See id., 966,
    1001–1002 (D’Auria, J., dissenting).
    My disagreement with the majority in Smith was also
    premised, in no small part, on my belief that the color-
    able 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 color-
    able claim standard will provide the Appellate Court—
    where, in the first instance, these interlocutory appeals
    will almost always be filed and any final judgment chal-
    lenges resolved—with a tool to bat aside and short-
    circuit 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 set-
    tlement 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, conclud-
    ing that, because Brignole had denied sending the let-
    ters 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 pro-
    tections because they could not demonstrate that they
    were being sued for the exercise of their first amend-
    ment rights insofar as there was no such exercise accord-
    ing 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 Appel-
    late 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 con-
    duct, 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 proce-
    dure 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 unsuc-
    cessful, the defendants can perpetuate this special treat-
    ment by taking a rarely afforded interlocutory appeal
    of the denials of their special motions to dismiss, pre-
    venting 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 consid-
    ered 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 major-
    ity 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 distin-
    guishable 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, specifi-
    cally, 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. Specifi-
    cally, § 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 peti-
    tion 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) indi-
    cates 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 pro-
    cedure 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 consti-
    tutional right—of access to courts—would be unneces-
    sarily 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. 970
    –71, 976, 987–88 (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. 966
     (D’Auria, J., dis-
    senting). 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,’ ’’ estab-
    lishing that the plaintiff brought the underlying lawsuit abusively or frivo-
    lously 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.
    

Document Info

Docket Number: SC20581, SC20583

Filed Date: 5/9/2023

Precedential Status: Precedential

Modified Date: 5/11/2023