Elder v. Kauffman ( 2021 )

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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 estop-
pel 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 publica-
tions 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 unconstitu-
tional 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, Mou-
kawsher, 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. Millin-
ger, 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 com-
plaint 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 anti-
SLAPP1 statute, General Statutes § 52-196a,2 (2) res judi-
cata 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 rele-
vant to our resolution of the plaintiff’s appeal. The plain-
tiff, who is an attorney licensed to practice law in Con-
necticut, 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’’ inva-
sion 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 suspen-
sion, and our Supreme Court reversed the order of
the Superior Court specifically on the ground that the
presentment had been untimely commenced. See Disci-
plinary 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 defen-
dants 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 defen-
dants, pursuant to § 52-196a, filed a special motion to
dismiss the complaint. On August 27, 2019, the court,
Moukawsher, J., granted the defendants’ motion, con-
cluding 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 disci-
plinary suspension were protected by fair report privi-
lege); and in state court. See Elder v. 21st Century
Media Newspaper, LLC, Superior Court, judicial district
of Hartford, Docket No. CV-XX-XXXXXXX-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 compar-
ing publications to suspension decision, this court
determined, inter alia, that trial court correctly con-
cluded 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 dis-
missing his complaint on the ground that it was barred
by the doctrine of res judicata. He argues that res judi-
cata 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 quota-
tion 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 oppos-
ing party that is based upon the opposing party’s exer-
cise 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 Lar-
mel 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 jurisdic-
tional 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 par-
ty’s complaint . . . is based on the moving party’s exer-
cise 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 cir-
cumstances giving rise to the complaint . . . and dem-
onstrates 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 particu-
lar 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 pre-
vail on the merits of the complaint . . . .’’ General Stat-
utes § 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, neces-
sarily 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 suc-
ceeding 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 dis-
miss. ‘‘[C]ollateral estoppel precludes a party from relit-
igating issues and facts actually and necessarily deter-
mined 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 determi-
nation of the issue, the judgment could not have been
validly rendered. . . . To assert successfully the doc-
trine of issue preclusion, therefore, a party must estab-
lish 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 Under-
writers 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 defen-
dants’ 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 collat-
eral estoppel apply in this case. We conclude that collat-
eral 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 analy-
sis. ‘‘On August 1, 2015, the Hartford Courant published
an article titled, ‘Attorney Suspended for a Year.’ . . .
That article was written by . . . Kauffman, and it sum-
marized the suspension decision. The opening para-
graph 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 publica-
tion 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 pub-
lishing the 2015 articles. Specifically, the plaintiff
argued that the 2015 articles’ use of the word ‘imperson-
ating’ 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 offi-
cer,’ which, the plaintiff argued, ‘painted an incomplete
and misleading account of the incident . . . .’ The
plaintiff claimed that he ‘sustained damages, and contin-
ues to sustain damages, on account of said publica-
tions.’ 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.’’ (Cita-
tions 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 defama-
tion 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 allega-
tions 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 pri-
vacy on the basis of the 2015 publications, which dis-
cussed 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-XX-XXXXXXX-S. The
court recognized that the present complaint also con-
tained 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 publi-
cations 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-XX-XXXXXXX-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 allega-
tions 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 publi-
cation 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 priv-
ity 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 alle-
gations 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 (arti-
cles’ 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 com-
plaint 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 com-
plaint 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 omit-
ted)); 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 unconsti-
tutional 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 sub-
stantially 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 govern-
ment 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 com-
plaint, 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 practica-
ble.
‘‘(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 com-
plaint 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 attor-
neys 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 con-
struction 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 judg-
ment may involve the circumstances surrounding the making of the judg-
ment. . . . 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 allega-
tions 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.