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Aguilar v. Eick
MARCIO RENE AGUILAR v. JANET EICK
(AC 47474)
Elgo, Clark and Bishop, Js.*
Syllabus
The plaintiff appealed from the trial court’s judgment granting the defendant’s special motion to dismiss filed pursuant to the anti-SLAPP statute
(§ 52-196a). The plaintiff had sought to recover damages for, inter alia,
defamation by the defendant in connection with a report the defendant
made to the pediatrician of the plaintiff’s stepchild, J, regarding the plaintiff’s
alleged abuse of J. The defendant’s report led to an investigation by the
Department of Children and Families, which issued a finding substantiating
the abuse. Following a hearing, an administrative hearing officer reversed
the department’s finding. The trial court conducted an evidentiary hearing
on the special motion to dismiss, at which three witnesses testified. Held:
This court concluded, in light of the plain mandate of § 52-196a, which is
intended to quickly dispose of meritless litigation at minimal cost through
consideration of the pleadings and supporting affidavits of the parties, that
the evidentiary hearing and the trial court’s reliance on testimony adduced
at that hearing in its ruling were improper, as § 52-196a cannot reasonably
be read to authorize a court to conduct an evidentiary hearing on a special
motion to dismiss.
The trial court’s decision to hold an evidentiary hearing on the defendant’s
special motion to dismiss and to predicate its ruling on testimony from that
hearing constituted reversible error, as this court concluded, on the basis
of the plain language of § 52-196a, its legislative history, the policy it was
designed to implement, and persuasive authority from other states, that the
legislature did not intend to permit a trial court to conduct such evidentiary
hearings and, thus, this court remanded the case to permit the parties an
opportunity to file any supplemental pleadings or affidavits and to permit
argument thereon.
The plaintiff could not prevail on his claim that the doctrine of collateral
estoppel precluded the defendant, in further proceedings, from claiming
that her report of abuse was truthful and made in good faith, as the issue
of whether the defendant made her report of abuse truthfully and in good
* This appeal originally was argued before a panel of this court consisting
of Judges Elgo, Clark and Prescott. Subsequent to oral argument, Judge
Bishop replaced Judge Prescott on the panel, and he has reviewed the
record, the briefs and appendices, and the recording of the oral argument
prior to participating in this opinion.
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Aguilar v. Eick
faith was neither fully litigated nor definitively determined in the administrative proceeding, and privity between the defendant and the department
was lacking.
Argued March 27—officially released August 12, 2025
Procedural History
Action to recover damages for, inter alia, defamation,
and for other relief, brought to the Superior Court in
the judicial district of Ansonia-Milford, where the court,
J. Welch, J., granted the defendant’s special motion to
dismiss and rendered judgment thereon, from which
the plaintiff appealed to this court. Reversed; further
proceedings.
John-Henry M. Steele, for the appellant (plaintiff).
Michael C. Barbarula, with whom, on the brief, was
Ryan V. Nobile, for the appellee (defendant).
Opinion
ELGO, J. The plaintiff, Marcio Rene Aguilar, appeals
from the judgment of the trial court granting the special
motion to dismiss filed by the defendant, Janet Eick,
pursuant to General Statutes § 52-196a, Connecticut’s
anti-SLAPP statute.1 On appeal, the plaintiff claims that
1
‘‘SLAPP is an acronym for strategic lawsuit against public participation
. . . .’’ (Internal quotation marks omitted.) Lafferty v. Jones, 336 Conn. 332,
337 n.4, 246 A.3d 429 (2020), cert. denied, U.S. ,
141 S. Ct. 2467,
209
L. Ed. 2d 529 (2021). ‘‘SLAPP suits . . . are by definition frivolous lawsuits
. . . .’’ Smith v. Supple, 346 Conn. 928, 935,
293 A.3d 851 (2023); see also
Duracraft Corp. v. Holmes Products Corp., 427 Mass. 156, 164,
691 N.E.2d
935 (1998) (‘‘SLAPPs are by definition meritless suits’’ (internal quotation
marks omitted)). As one court observed, ‘‘[b]ecause winning is not a SLAPP
plaintiff’s primary motivation, defendants’ traditional safeguards against
meritless actions (suits for malicious prosecution and abuse of process,
requests for sanctions) are inadequate to counter SLAPP’s.’’ (Internal quotation marks omitted.) Dixon v. Superior Court, 30 Cal. App. 4th 733, 741,
36 Cal. Rptr. 2d 687 (1994); accord Gaudette v. Davis,
160 A.3d 1190, 1194
(Me. 2017) (SLAPP ‘‘refers to litigation instituted not to redress legitimate
wrongs, but instead to ‘dissuade or punish’ the defendant’s [f]irst [a]mendment exercise of rights through the delay, distraction, and financial burden
of defending the suit’’).
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Aguilar v. Eick
the court improperly concluded that he failed to satisfy
his burden under § 52-196a (e) (3) of establishing probable cause that he will prevail on the merits of his complaint.2 The court reached that conclusion following an
evidentiary hearing at which three witnesses testified.
In its memorandum of decision, the court expressly
relied on that testimony.
Following oral argument before this court, we ordered
the parties to file supplemental briefs to address
whether § 52-196a authorizes the trial court to conduct
an evidentiary hearing on a special motion to dismiss
and to predicate its decision on evidence adduced at
that hearing. We conclude that issue is dispositive of
the present appeal and, accordingly, reverse the judgment of the trial court.
At the outset, we note that § 52-196a constitutes a
‘‘special statutory benefit’’; Lafferty v. Jones, 336 Conn.
332, 372,
246 A.3d 429 (2020), cert. denied, U.S. ,
141 S. Ct. 2467,
209 L. Ed. 2d 529 (2021); that ‘‘provides
a moving party with the opportunity to have [a] lawsuit
dismissed early in the proceeding and stays all discovery, pending the trial court’s resolution of the special
motion to dismiss.’’ Priore v. Haig, 344 Conn. 636, 659,
280 A.3d 402 (2022). ‘‘A special motion to dismiss filed
pursuant to § 52-196a . . . is not a traditional motion
to dismiss based on a jurisdictional ground.’’ Elder v.
General Statutes § 52-196a (e) (3) provides: ‘‘The court shall grant a
2
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.’’
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Kauffman, 204 Conn. App. 818, 824,
254 A.3d 1001
(2021). Rather, it is an extraordinary procedural vehicle;
see Smith v. Supple, 346 Conn. 928, 946,
293 A.3d 851
(2023); that is ‘‘designed to weed out meritless claims
at an early stage of litigation . . . .’’ Mulvihill v. Spinnato, 228 Conn. App. 781, 801,
326 A.3d 251, cert. denied,
350 Conn. 926,
326 A.3d 248 (2024); see also Day v.
Dodge, Superior Court, judicial district of New London,
Docket No. CV-XX-XXXXXXX-S (January 25, 2019) (67
Conn. L. Rptr. 750, 755 n.4) (§ 52-196a enacted ‘‘to allow
courts to dismiss frivolous and vexatious actions’’).
Section 52-196a (e) (2) instructs that, ‘‘[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.’’ As this court
recently observed, ‘‘[i]n reviewing the trial court’s decision granting a special motion to dismiss pursuant to
§ 52-196a, we take the facts as they appear in the pleadings, affidavits, and other exhibits submitted by the
parties and construe them in the light most favorable
to the plaintiff.’’ Birch Hill Recovery Center, LLC v.
High Watch Recovery Center, Inc., 233 Conn. App. 182,
186 n.6, A.3d (2025).
At all relevant times, the plaintiff was married to
Carmelite Jean Pierre, with whom he had two biological
children. Pierre also had two children from a prior relationship, including J,3 who lived with the plaintiff and
Pierre.
Following the birth of her second child with the plaintiff on August 30, 2016, Pierre suffered a severe brain
injury and was rendered a quadriplegic. On February
3
In accordance with our policy of protecting the privacy interests of
alleged victims of sexual abuse, we decline to identify the alleged victim.
See General Statutes § 54-86e.
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Aguilar v. Eick
7, 2017, the Probate Court for the District of NorwalkWilton appointed the defendant as the conservator of
Pierre’s person and estate.4 In 2018, the defendant commenced a medical malpractice action in her capacity
as Pierre’s conservator against certain defendants, who
agreed to settle the action for $25 million. On June 18,
2020, the Probate Court issued a decree authorizing
that settlement.
Due to extraordinary challenges caused by his wife’s
injuries, the plaintiff asked the defendant to also serve
as J’s legal guardian. The defendant agreed and became
the legal guardian of J in early 2019, with physical custody remaining with the plaintiff. Following the onset
of the COVID-19 pandemic, the defendant took physical
custody of J with the consent of the plaintiff in an effort
to meet J’s remote learning needs.
At approximately the same time that the Probate
Court authorized the settlement of the medical malpractice action on June 18, 2020, the plaintiff asked the
defendant to return J to his custody. Shortly thereafter,
the defendant made the report to J’s pediatrician that
precipitated this litigation.
In her sworn affidavit, the defendant averred in relevant part: ‘‘On June 30, 2020, I took [J] to a doctor’s
appointment. While I was driving on Interstate 95 with
[J] in the car, [J] told me that the plaintiff recently had
sexually and physically abused her. . . . I obviously
was very concerned about the allegations and called
[J’s] pediatrician. I reported to the pediatrician, who I
knew was a mandated reporter of child sexual abuse,
that [J] told me that she was physically and sexually
abused by the plaintiff. . . . [The] pediatrician
4
The defendant previously worked as a registered nurse and met Pierre
while volunteering at Malta House, a nonprofit organization in Norwalk
where Pierre then was employed.
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reported the alleged abuse to [the Department of Children and Families (department)], which opened an
investigation and interviewed witnesses, including me
and [J]. During the [department] investigation, I told
the investigators that, on June 30, 2020, [J] told me that
she had been physically and sexually abused by the
plaintiff. [J] was also interviewed during the [department] investigation. . . . I understand that, at the conclusion of [the department’s] investigation, [the department] issued a finding substantiating the allegation of
abuse. Thereafter, I understand that the plaintiff
appealed the substantiation finding . . . [and] a hearing was held. Neither I nor [J] was advised of the hearing
or participated in it. . . .’’ Following that hearing, the
administrative hearing officer reversed the department’s initial finding of abuse in a decision issued on
December 14, 2021 (administrative decision).
The plaintiff commenced the present action in 2023.
His complaint contained four counts alleging defamation, fraud, vexatious litigation, and intentional infliction of emotional distress, which all were predicated
on the defendant’s statements to the pediatrician and
department investigators regarding the alleged abuse
of J. In response, the defendant filed a special motion
to dismiss pursuant to § 52-196a, claiming that ‘‘the
plaintiff’s lawsuit is an attempt to chill [her] right to
petition the government on a matter of public concern’’—namely, the commission of a crime.5 The defendant filed a memorandum of law in support of that
motion, to which her sworn affidavit was attached.
The plaintiff filed a memorandum in opposition to
the special motion to dismiss, in which he argued that
5
See, e.g., Gleason v. Smolinski, 319 Conn. 394, 415,
125 A.3d 920 (2015)
(‘‘[p]ublic allegations that someone is involved in crime generally are speech
on a matter of public concern’’ (internal quotation marks omitted)); Squeglia
v. Squeglia, 234 Conn. 259, 266 n.6,
661 A.2d 1007 (1995) (‘‘the perpetration
of a crime by a parent upon a child is a matter of public concern’’).
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Aguilar v. Eick
the defendant had failed to meet her initial burden under
§ 52-196a (e) (3) and that ‘‘there is probable cause,
considering all valid defenses, that [he] will prevail on
the merits of his claim.’’6 The plaintiff further alleged
that ‘‘[t]his lawsuit involves a situation where the defendant, motivated by malice and misplaced notions of
self-interest, decided to falsely report the plaintiff to
[the department] as having abused his stepdaughter.
. . . The defendant’s efforts to label [him] as a child
abuser were found to be unsubstantiated by a [department] administrative hearing officer after a full administrative hearing. . . . Moreover, the findings [in the
administrative decision] indicate that the defendant
likely coached the plaintiff’s stepdaughter to falsely
report that [he] was a child abuser.’’ (Citations omitted.)
Accompanying that motion was the affidavit of the
plaintiff’s counsel, Attorney John-Henry M. Steele, in
which he stated: ‘‘Appended hereto is what I understand
to be a true and accurate copy of the [administrative
decision], which is referenced in the plaintiff’s memorandum in opposition to the defendant’s special motion
to dismiss.’’
The court thereafter ordered both the plaintiff’s memorandum in opposition to the special motion to dismiss
and the copy of the administrative decision attached
to that memorandum to be sealed and lodged with the
6
As this court has noted, ‘‘the inquiry mandated by § 52-196a is twofold
in nature. Pursuant to § 52-196a (e) (3), a party that files a special motion
to dismiss bears the initial burden of demonstrating, 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 under the Constitution of the United
States or the Constitution of the state in connection with a matter of public
concern . . . .’ If that burden is met, the burden shifts to the party that
brought the complaint to demonstrate ‘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). For a special motion to dismiss
to be granted, the court must resolve both prongs in favor of the moving
party.’’ Mulvihill v. Spinnato, supra, 228 Conn. App. 787–88.
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Aguilar v. Eick
clerk due to the ‘‘privacy interest for minors in keeping
documents concerning allegations and investigations of
alleged abuse from the public’’; see General Statutes
§§ 17a-28 and 17a-101k; and the plaintiff’s ‘‘privacy interest . . . with respect to unsubstantiated findings and
records.’’ See General Statutes § 17a-101k. The court
further ordered the plaintiff to file a redacted copy of
his memorandum in opposition to the special motion
to dismiss that omitted ‘‘all quotations and references to
the [administrative decision] or information contained
therein.’’
On August 22, 2023, the defendant filed a redacted
reply to the plaintiff’s memorandum in opposition to
the special motion to dismiss, in which she emphasized
that the plaintiff ‘‘has not submitted an affidavit in opposition to the special motion to dismiss in an effort to
establish any of the allegations of the complaint.’’ The
defendant also noted that the plaintiff ‘‘primarily relies’’
on the administrative decision, which was issued ‘‘without ever hearing from or speaking to the defendant or
[J].’’ In addition, the defendant argued that the administrative decision ‘‘does not have preclusive effect’’ in the
present case.
On September 18, 2023, the court held an evidentiary
hearing on the defendant’s special motion to dismiss,
at which three witnesses testified.7 In addition, one
exhibit was submitted by the defendant and marked
for identification purposes.8 The parties thereafter filed
7
The court heard testimony from Candace Kaiser, an investigative social
worker with the department, Detective Timothy Marquis of the Norwalk
Police Department, and the plaintiff. The defendant called Kaiser as a witness
at the outset of the hearing and the plaintiff’s counsel thereafter called
Marquis and the plaintiff as witnesses.
8
At the September 18, 2023 evidentiary hearing, the defendant offered a
copy of an investigation file that it had subpoenaed from the department
regarding the allegations against the plaintiff, which was marked as exhibit A
for identification purposes and ‘‘not as a full exhibit.’’ The court subsequently
granted the defendant’s motion to seal that exhibit. There is no indication
in the court’s memorandum of decision that the court considered either
that exhibit or the administrative decision in ruling on the defendant’s special
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Aguilar v. Eick
posthearing briefs with the court, in which they discussed the testimony elicited at the evidentiary hearing.
In addition, the plaintiff attached two documents
labeled as ‘‘exhibits’’ to his posthearing brief. The first
is a copy of Pierre’s obituary, which indicates that she
died on November 17, 2023. The second document is
the sworn affidavit of Attorney Daisy P. Garces, who
at that time represented the plaintiff in proceedings
before the Probate Court.9
motion to dismiss. To the contrary, the court stated in its memorandum of
decision that it ‘‘finds the following facts from the complaint, the affidavit
of [the defendant], the affidavit of [Attorney Daisy P. Garces, who represented the plaintiff in proceedings before the Probate Court], and testimony
given at the September 18, 2023 court hearing on the special motion to dismiss.’’
On appeal, neither party has raised any claim regarding the admissibility
of the administrative decision or the department’s investigation file. See,
e.g., Weaver v. McKnight, 313 Conn. 393, 432–33,
97 A.3d 920 (2014) (prior
findings by third party concerning credibility of witness generally inadmissible to impeach credibility in later proceeding); Manson v. Conklin, 197
Conn. App. 51, 62–63,
231 A.3d 254 (2020) (same); see also E. Prescott,
Tate’s Handbook of Connecticut Evidence (6th Ed. 2019) § 6.28.5, pp. 390–91;
but see Weaver v. McKnight, supra, 432 n.9 (noting that court ‘‘[did] not
decide whether a witness may be asked about a determination by a judicial,
state administrative agency, or licensing board, not resulting in a perjury
conviction, that the witness testified untruthfully in a prior proceeding’’).
We therefore do not address the propriety of a court’s consideration of such
evidence in ruling on a special motion to dismiss pursuant to § 52-196a (e) (2).
9
In her January 16, 2024 affidavit, Garces stated in relevant part that the
defendant ‘‘has been ordered by the Greenwich Probate Court to account
for trust funds she says she received for the benefit of [Pierre], which trust
was funded with the net proceeds of a $25,000,000 medical malpractice
settlement in favor of [Pierre]’’; that the defendant ‘‘has accessed the trust
funds in the dual capacities as (i) conservator for [Pierre]; and (ii) guardian
of [J]’’; that, in February, 2023, the Probate Court ordered the defendant
‘‘to account for the funds she received’’ as conservator during the preceding
six years; and that, ‘‘[t]o date, [the defendant] has failed to provide a proper
accounting with proper backup documentation establishing exactly how
much of [Pierre’s] money she received, how much of it she has spent, and
what she spent it on.’’
In the March 13, 2023 affidavit that the defendant filed as an attachment
to her special motion to dismiss, the defendant addressed the trust funds
issue, stating in relevant part: ‘‘In my role as [Pierre’s] Conservator, I retained
counsel who brought a medical malpractice action against the facility where
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Aguilar v. Eick
Pursuant to § 52-196a (e) (4), the trial court is obligated to ‘‘rule on a special motion to dismiss as soon
as practicable.’’ The court in this case issued its memorandum of decision on the special motion to dismiss
on March 4, 2024—five and one-half months after the
September 18, 2023 evidentiary hearing and almost one
year after the special motion to dismiss was filed on
March 16, 2023. At the outset of that decision, the court
expressly indicated that it ‘‘finds the following facts
from the complaint, the affidavit of [the defendant],
the affidavit of [Garces], and testimony given at the
September 18, 2023 court hearing on the special motion
to dismiss.’’ The court further noted that Detective Timothy Marquis of the Norwalk Police Department ‘‘testified at the court hearing on the special motion to dismiss. According to Detective Marquis, the [Norwalk
Police Department] suspended its investigation without
charging [the plaintiff]. Detective Marquis found [the
plaintiff] credible and responsive during his investigation of the matter. Detective Marquis also found [certain
conduct of the defendant] strange.’’
With respect to the defendant’s initial burden under
§ 52-196a (e) (3); see footnote 6 of this opinion; the
court concluded that the defendant had established, by
a preponderance of the evidence, that the claims set
forth in the plaintiff’s complaint were ‘‘based on the
[defendant’s] right to petition the government on a matter of public concern.’’ The court also concluded that
the plaintiff had not met his statutory burden of establishing probable cause that he will prevail on any of
[Pierre] gave birth and was injured. In June, 2020, the Probate Court issued
a decree authorizing the compromise of the medical malpractice action,
which resulted in a substantial settlement. The settlement funds were placed
into a trust for the benefit of the plaintiff, [Pierre], and her children . . . .
The trust is overseen by an independent Trustee. I do not have access to
the trust funds and I am not entitled to the proceeds of the trust. While I
have been reimbursed for certain expenses related to my work as [Pierre’s]
Conservator, I do not take a salary for my role.’’
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Aguilar v. Eick
the four counts of his complaint. The court thus granted
the defendant’s special motion to dismiss, and this
appeal followed.
On appeal, the plaintiff challenges the court’s determination that he failed to establish probable cause that
he will prevail on the defamation and intentional infliction of emotional distress counts of his complaint.10
Following oral argument before this court, we ordered
the parties, pursuant to our inherent supervisory
authority; see Blumberg Associates Worldwide, Inc. v.
Brown & Brown of Connecticut, Inc., 311 Conn. 123,
155, 84 A.3d 840 (2014); to file supplemental briefs
‘‘addressing (1) whether [§] 52-196a authorizes the trial
court to conduct an evidentiary hearing on a special
motion to dismiss, particularly in light of the recent
decision of the Supreme Court of Vermont in Talandar
v. Manchester-Murphy, 331 A.3d 1093 (Vt. 2024), (2)
whether § 52-196a (e) (2) permits the trial court to consider evidence adduced at such a hearing in ruling on
a special motion to dismiss, and (3), if not, whether a
reversal and remand to the trial court for a new hearing
is necessary in this case for consideration of the ‘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).’’ The parties complied with that directive.
10
In his principal appellate brief, the plaintiff did not challenge the court’s
determinations (1) that the defendant met her burden of demonstrating that
his claims were based on the right to petition the government on a matter
of public concern or (2) that the plaintiff failed to establish probable cause
that he will prevail on the fraud and vexatious litigation counts of his
complaint. As he stated, ‘‘the only issue on appeal is whether the trial court
properly found that the [defamation and intentional infliction of emotional
distress claims] were not supported by probable cause.’’
In his appellate reply brief, the plaintiff claims that the doctrine of collateral estoppel compels the conclusion that the defendant did not meet her
burden under the first prong of § 52-196a (e) (3). We address that contention
in part III of this opinion.
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The record is adequate to review the legal issues
addressed in those supplemental briefs and our consideration thereof will not prejudice either party. Moreover, we conclude that exceptional circumstances exist
which warrant review of those issues. Defining the proper
parameters of hearings on special motions to dismiss
pursuant to § 52-196a ‘‘would serve the important interests of judicial efficiency, clarity in the law, and the
fair administration of justice’’; Townsend v. Commissioner of Correction, 226 Conn. App. 313, 330,
317 A.3d
1147 (2024); particularly since our anti-SLAPP statute is
of recent vintage11 and there is confusion in the Superior
Court on this issue.12 We therefore exercise our supervisory authority to address those issues of first impression in this state.
I
We begin with the question of whether § 52-196a
authorizes the trial court to conduct an evidentiary hearing on a special motion to dismiss and to predicate its
decision on evidence adduced at such a hearing. That
11
See Pryor v. Brignole, 231 Conn. App. 659, 676,
333 A.3d 1112 (2025)
(§ 52-196a ‘‘became effective on January 1, 2018, joining dozens of states
that already had enacted anti-SLAPP statutes’’).
12
Compare, e.g., Morrison v. Hamilton, Docket No. CV-XX-XXXXXXX-S, 2025
WL 457331, *2 (Conn. Super. February 5, 2025) (noting that, pursuant to
§ 52-196a (e) (2), ‘‘the court should consider both ‘pleadings’ and ‘supporting
and opposing affidavits’ ’’ in ruling on special motion to dismiss and characterizing hearing on special motion to dismiss as ‘‘oral argument’’), and Khan
v. Jewish Women International, Docket No. CV-XX-XXXXXXX-S, 2025 WL
88669, *1 (Conn. Super. January 9, 2025) (‘‘[t]he court heard arguments on
these [special motions to dismiss]’’), with Mayer v. Fairfield, Docket No.
CV-XX-XXXXXXX-S, 2025 WL 39856, *2 (Conn. Super. January 2, 2025) (acknowledging that ‘‘[t]he hearing procedure does not require testimony and in the
proper case may be decided based on the pleadings and affidavits’’ but
stating that ‘‘there are certain cases where a court needs a better record to
decide a special motion to dismiss’’), and Flynn v. Dixon, Docket No. CV-XX-XXXXXXX-S, 2023 WL 2495608, *1 (Conn. Super. March 8, 2023) (ordering
continuation of hearing on special motion to dismiss ‘‘to permit the parties to
present further evidence related to the matters addressed below by affidavit,
exhibits and/or testimony’’).
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question presents an issue of statutory interpretation,
over which our review is plenary. See Dept. of Public
Health v. Estrada, 349 Conn. 223, 238,
315 A.3d 1081
(2024).
‘‘When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent
of the legislature. . . . In other words, we seek to
determine, in a reasoned manner, the meaning of the
statutory language as applied to the facts of [the] case
. . . . In seeking to determine that meaning, General
Statutes § 1-2z directs us first to consider the text of
the statute itself and its relationship to other statutes.
If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results,
extratextual evidence of the meaning of the statute shall
not be considered. . . . When a statute is not plain and
unambiguous, we also look for interpretive guidance
to the legislative history and circumstances surrounding
its enactment, to the legislative policy it was designed to
implement, and to its relationship to existing legislation
and [common-law] principles governing the same general subject matter . . . .’’ (Internal quotation marks
omitted.) State v. A. B., 341 Conn. 47, 56 n.5,
266 A.3d
849 (2021).
A
In considering the proper construction of § 52-196a,
we do not write on a blank slate but are guided by
previous decisions of this court and our Supreme Court.
See Connecticut Ins. Guaranty Assn. v. Drown, 314
Conn. 161, 173,
101 A.3d 200 (2014). Section § 52-196a
constitutes a ‘‘special statutory benefit’’; Lafferty v.
Jones, supra, 336 Conn. 372; that ‘‘affords a defendant
a substantive right to avoid litigation on the merits that
can be costly and burdensome’’; Smith v. Supple, supra,
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Aguilar v. Eick
346 Conn. 949; through ‘‘the dismissal of a SLAPP suit.’’13
Id., 935. Because ‘‘SLAPP suits . . . are by definition
frivolous lawsuits’’; id.; the procedural mechanism
established by § 52-196a is intended to ‘‘weed out meritless claims at an early stage of litigation . . . .’’ Mulvihill v. Spinnato, supra,228 Conn. App. 801; see also
Smith v. Supple, supra, 965 (D’Auria, J., dissenting)
(‘‘[o]n an expedited basis and on a quickly assembled
record, a trial judge serves as a gatekeeper, promptly
weeding out and dismissing lawsuits that plainly have
been filed for [an] illegitimate purpose’’).
As this court has explained, ‘‘[§] 52-196a (e) pertains
to the conduct of the court in acting on a special motion
to dismiss.’’ Pryor v. Brignole, 231 Conn. App. 659, 672,
333 A.3d 1112 (2025). Subdivision (1) of § 52-196a (e)
provides in relevant part that ‘‘[t]he court shall conduct
an expedited hearing on a special motion to dismiss,’’
which generally must occur ‘‘not later than sixty days
after the date of filing of such special motion to dismiss
. . . .’’14 Subdivision (2) specifies what materials the
court may consider in ruling on a special motion to
dismiss and provides: ‘‘When ruling on a special motion
to dismiss, the court shall consider pleadings and supporting and opposing affidavits of the parties attesting
13
The statutory right to seek a dismissal of a SLAPP suit is memorialized
in General Statutes § 52-196a (b), which provides: ‘‘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.’’
14
General Statutes 52-196a (e) (1) permits extension of that sixty day time
period when ‘‘(A) the court orders specified and limited discovery pursuant
to subsection (d) of this section, in which case, the expedited hearing shall
be held not later than sixty days after the date on which such specified and
limited discovery must be completed, (B) the parties agree to a hearing date
that is beyond the sixty-day period, or (C) the court, for good cause shown,
is unable to schedule the hearing during the sixty-day period.’’
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to the facts upon which liability or a defense, as the
case may be, is based.’’ General Statutes § 52-196a (e)
(2). Subdivision (3) of § 52-196a (e) prescribes the legal
standard that the court must apply in ruling on a motion
to dismiss. See footnotes 2 and 6 of this opinion. Lastly,
subdivision (4) of § 52-196a (e) requires the court to
‘‘rule on a special motion to dismiss as soon as practicable.’’
Section 52-196a (e) (1) plainly requires the court to
conduct ‘‘an expedited hearing’’ on the special motion
to dismiss. At the same time, nothing in that subdivision
or any other part of § 52-196a authorizes the court to
take evidence at that hearing and hear testimony from
witnesses, as the court did in the present case. Had the
legislature intended to permit the trial court to conduct
evidentiary hearings on special motions to dismiss, it
certainly knew how to do so, as it expressly has done
in other statutes.15 See, e.g., General Statutes § 17a-111b
(authorizing court to conduct evidentiary hearing on
motion for determination that reasonable efforts to
reunify parent with child is not required); General Statutes § 46b-129 (authorizing court to conduct evidentiary
hearing in connection with contested motion for review
of permanency plan in juvenile proceedings); General
Statutes § 49-14 (authorizing court to conduct evidentiary hearing on motion for deficiency judgment in foreclosure action); General Statutes § 54-64f (authorizing
court to conduct evidentiary hearing in response to
allegations that defendant violated conditions of
release).
15
See Costanzo v. Plainfield, 344 Conn. 86, 108,
277 A.3d 772 (2022) (‘‘[i]t
is a well settled principle of statutory construction that the legislature knows
how to convey its intent expressly’’ (internal quotation marks omitted));
see also Rutter v. Janis, 334 Conn. 722, 734–35,
224 A.3d 525 (2020) (legislature’s use of term in other statutes indicates that it knows how to include
that terminology ‘‘when it intends to do so’’); Tomick v. United Parcel
Service, Inc., 157 Conn. App. 312, 341,
115 A.3d 1143 (2015) (same), aff’d,
324 Conn. 470,
153 A.3d 615 (2016).
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Moreover, if the legislature intended the hearing provided for in § 52-196a (e) (1) to be evidentiary in nature,
it easily could have added a single word to the statute,
so as to read: ‘‘The court shall conduct an expedited
evidentiary hearing on a special motion to dismiss.
. . .’’ The legislature here did not do so. That the legislature enacted § 52-196a to provide ‘‘a prompt remedy’’;
Elder v. Kauffman, supra,204 Conn. App. 824; with
minimal cost to the moving party; see Pryor v. Brignole,
supra, 231 Conn. App. 664 n.7; suggests that the omission of any reference to an ‘‘evidentiary’’ hearing in
§ 52-196a (e) (1) was deliberate. We, therefore, ‘‘are not
permitted to supply statutory language that the legislature may have chosen to omit.’’ Vaillancourt v. New
Britain Machine/Litton, 224 Conn. 382, 396,
618 A.2d
1340 (1993); see also Branford v. Santa Barbara,
294
Conn. 803, 813,
988 A.2d 221 (2010) (‘‘[w]e are bound
to interpret legislative intent by referring to what the
legislative text contains, not by what it might have contained’’ (internal quotation marks omitted)).
The expedited hearing requirement in § 52-196a (e)
(1) also must be read in context of the entire statute.
See Thomas v. Dept. of Developmental Services, 297
Conn. 391, 408,
999 A.2d 682 (2010) (statutory provision
cannot be ‘‘interpreted in a vacuum, without reference
to the statute’s other provisions’’); Board of Education
v. State Board of Labor Relations, 217 Conn. 110, 116,
584 A.2d 1172 (1991) (‘‘[w]e construe a statute as a
whole and read its subsections concurrently in order
to reach a reasonable overall interpretation’’). After providing for an expedited hearing in subdivision (1) of
§ 52-196a (e), the very next subdivision specifies precisely what materials the court may consider in ruling
on a special motion to dismiss. Section 52-196a (e) (2)
provides: ‘‘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
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upon which liability or a defense, as the case may be, is
based.’’ By its plain language, that statutory imperative
confines the court’s consideration to the pleadings and
the affidavits submitted by the parties; it contains no
reference to testimony or other evidence admitted at
an evidentiary hearing.
If the legislature intended to permit the court, in
ruling on a special motion to dismiss, to consider evidence admitted at a hearing, it presumably would have
said so, as the legislatures in at least three other states
have done.16 Principles of both statutory construction
and separation of powers preclude this court from
rewriting § 52-196a (e) (2) to permit the consideration
of such evidence. See Blondeau v. Baltierra, 337 Conn.
127, 143,
252 A.3d 317 (2020) (‘‘It is axiomatic that the
court itself cannot rewrite a statute to accomplish a
particular result. That is a function of the legislature.’’
(Internal quotation marks omitted.)); Kilpatrick v.
Board of Education, 206 Conn. 25, 28,
535 A.2d 1311
(1988) (courts ‘‘cannot read into a statute something
that is not there’’); Burke v. Board of Representatives,
148 Conn. 33, 43,
166 A.2d 849 (1961) (‘‘[c]ourts must
apply statutes as they find them, whether or not they
16
See Ariz. Rev. Stat. Ann. § 12-751 (C) (2022) (‘‘[i]n making its determination [on an anti-SLAPP motion to dismiss], the court shall conduct an evidentiary hearing or consider the pleadings and supporting and opposing affidavits stating facts on which the liability, defense or action is based’’);
Nev.
Rev. Stat. § 41.660 (3) (d) (2015) (court may ‘‘[c]onsider such evidence,
written or oral, by witnesses or affidavits’’ in ruling on special motion to
dismiss pursuant to anti-SLAPP statute); Tenn. Code Ann. (2019) § 20-17-
105 (d) (‘‘[t]he court may base its decision [on a petition to dismiss pursuant
to anti-SLAPP statute] on supporting and opposing sworn affidavits stating
admissible evidence upon which the liability or defense is based and on
other admissible evidence presented by the parties’’ (emphasis added));
but see Richman v. Debity, Docket No. E2022-00908-COA-R3-CV, 2023 WL
4285290, *2 (Tenn. App. June 30, 2023) (declining to review on inadequate
record grounds claim that ‘‘the [t]rial [c]ourt erred by adjudicating the
[petition to dismiss] based on live witness testimony taken during a postbriefing evidentiary hearing, rather than based on written materials submitted by the [p]arties’’).
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Aguilar v. Eick
think that the statutes might be improved by the inclusion of other or additional provisions’’).
We recognize that, with respect to the first prong of
the legal standard set forth in § 53-196a (e) (3), the
moving party bears the burden of establishing, 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 under the Constitution of the United States or the Constitution of the state
in connection with a matter of public concern . . . .’’
As this court recently observed, ‘‘although § 52-196a
(e) (3) references the preponderance of the evidence
standard, the statutory scheme does not provide for an
evidentiary hearing of any kind. Rather, the court is
obligated to hold an expedited hearing on the special
motion to dismiss and thereafter render a ruling in light
of the ‘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).’’ (Emphasis added.) Pryor v.
Brignole, supra, 231 Conn. App. 672 n.16.
In addition, we note that pleadings in this state routinely are accompanied by documentary evidence. See,
e.g., Freidburg v. Kurtz, 210 Conn. App. 420, 429,
270
A.3d 135 (2022) (‘‘[t]he lease agreement was appended
to the plaintiff’s complaint’’); Doyle Group v. Alaskans
for Cuddy, 164 Conn. App. 209, 213–14,
137 A.3d 809
(‘‘[a]ttached to the plaintiff’s complaint was a copy of
the parties’ contract’’), cert. denied, 321 Conn. 924,
138
A.3d 284 (2016); Harris v. Stamford, Docket No. CV-XX-XXXXXXX-S,
2021 WL 4926119, *2 (Conn. Super. October 1, 2021) (‘‘[a]ttached to the original complaint were
. . . photographs taken of claimed highway defects’’);
Joyner-Mosby v. Stamford Strawberry Hill Assn.,
Superior Court, judicial district of Stamford-Norwalk,
Docket No. CV-XX-XXXXXXX-S (April 28, 1998) (22 Conn.
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Aguilar v. Eick
L. Rptr. 59, 61) (‘‘[a]ttached to the complaint is a map
drawn by the plaintiff herself’’). Such documentation
usually is appended to a complaint as an exhibit and
so referenced in the pleading. See, e.g., State Marshal
Assn. of Connecticut, Inc. v. Johnson, 198 Conn. App.
392, 395 n.2,
234 A.3d 111 (2020) (‘‘[a] copy of the contract was appended to the plaintiff’s complaint and designated as exhibit A’’). Under Connecticut law, ‘‘[a] complaint includes all exhibits attached thereto.’’ (Internal
quotation marks omitted.) Tracy v. New Milford Public
Schools, 101 Conn. App. 560, 566,
922 A.2d 280, cert.
denied, 284 Conn. 910,
931 A.2d 935 (2007).
In the context of special motions to dismiss, documentary evidence often accompanies both the special
motion to dismiss filed by the moving party and the
objection filed by the nonmoving party, which properly
may be considered in ruling on a special motion to
dismiss.17 See, e.g., Birch Hill Recovery Center, LLC v.
High Watch Recovery Center, Inc., supra, 233 Conn.
App. 192 n.12 (defendant attached, inter alia, newspaper
article and ‘‘letters and emails submitted by members
of the community’’ as exhibits in support of special
motion to dismiss); Pryor v. Brignole, supra, 231 Conn.
App. 666 n.10 (defendant appended, inter alia, copies
of attorney grievance complaint and anonymous letter
‘‘[a]s exhibits to his special motion to dismiss’’); Chapnick v. DiLauro, 212 Conn. App. 263, 267,
275 A.3d 746
17
In the procedurally similar summary judgment context; see Mulvihill
v. Spinnato, supra,228 Conn. App. 794; Elder v.
Kauffman, supra,204 Conn.
App. 824; ‘‘[o]nly evidence that would be admissible at trial may be used
to support or oppose a motion for summary judgment.’’ Home Ins. Co. v.
Aetna Life & Casualty Co., 235 Conn. 185, 202–203,
663 A.2d 1001 (1995).
Whether the materials submitted in connection with a special motion to
dismiss similarly must be admissible at trial is a question that is not before
us in this appeal. Cf. Sweetwater Union High School District v. Gilbane
Building Co., 6 Cal. 5th 931, 949,
434 P.3d 1152,
243 Cal. Rptr. 3d 880 (2019)
(to be considered by court in ruling on anti-SLAPP motion, it must be
reasonably possible that materials submitted by parties will be ‘‘admissible
at trial’’).
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(2022) (defendants ‘‘attached a police report’’ in support
of special motions to dismiss); Gimpelson v. Hartford
Courant Co., LLC, Docket No. CV-XX-XXXXXXX-S, 2022
WL 1585356, *1 n.2 (Conn. Super. May 19, 2022) (defendant attached newspaper article as exhibit to affidavit
filed in support of special motion to dismiss); Baity v.
Mickley-Gomez, Docket No. CV-XX-XXXXXXX-S, 2020 WL
9314537, *2 n.5 (Conn. Super. December 14, 2020) (in
addition to affidavits, plaintiff attached copies of email
correspondence and incident report as exhibits to
objection to special motion to dismiss); Cevetillo v.
Lang, Docket No. CV-XX-XXXXXXX, 2019 WL 7597451, *2
n.4 (Conn. Super. December 13, 2019) (in addition to
affidavit, plaintiff attached ‘‘documents that purportedly are social media posts, an email . . . and a
detailed timeline prepared by the plaintiff’’ to objection
to special motion to dismiss).
The submission of such evidence to the court by way
of the pleadings is consistent with the overarching aim
of § 52-196a, which is to resolve SLAPP litigation quickly
and at minimal cost. See Smith v. Supple, supra, 346
Conn. 949; Priore v.
Haig, supra,344 Conn. 659; Pryor
v. Brignole, supra, 231 Conn. App. 664 n.7; Elder v.
Kauffman, supra,204 Conn. App. 824. Accordingly, the
parties are permitted to present both affidavits and
other documentary support for their respective positions on a special motion to dismiss, which the court
can consider without resort to an evidentiary hearing.
See, e.g., Sicignano v. Pearce, 228 Conn. App. 664, 666
n.4, 325 A.3d 1127 (2024) (‘‘[t]he [trial] court noted that
it considered the plaintiff’s complaint, including the
exhibits appended thereto, the plaintiff’s affidavit and
accompanying exhibits in opposition to the defendants’
motion to dismiss, and [the defendant’s] affidavits in
support of its [special] motion to dismiss’’), cert. denied,
351 Conn. 908,
330 A.3d 881 (2025).
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Furthermore, the expedited hearing requirement in
§ 52-196a (e) (1) must be read in a manner consonant
with prior constructions of § 52-196a by our appellate
courts. See New England Road, Inc. v. Planning &
Zoning Commission, 308 Conn. 180, 186,
61 A.3d 505
(2013). This court previously has explained that ‘‘the
procedural mechanism embodied in § 52-196a is ‘similar
to a motion for summary judgment.’ ’’18 Mulvihill v.
18
Other courts agree. See, e.g., Taus v. Loftus, 40 Cal. 4th 683, 714,
151
P.3d 1185,
54 Cal. Rptr. 3d 775 (2007) (‘‘the [l]egislature did not intend that
a court, in ruling on a motion . . . under [the anti-SLAPP] statute, would
weigh conflicting evidence to determine whether it is more probable than
not that plaintiff will prevail on the claim, but rather intended to establish
a summary-judgment-like procedure available at an early stage of litigation’’);
L.S.S. v. S.A.P., 523 P.3d 1280, 1286 (Colo. App. 2022) (special motion to
dismiss filed pursuant to anti-SLAPP statute entails summary judgment like
procedure), cert. denied, Colorado Supreme Court, Docket No. 22SC880
(July 17, 2023); American Civil Liberties Union, Inc. v. Zeh, 312 Ga. 647,
652–53, 864 S.E.2d 422 (2021) (motion filed pursuant to anti-SLAPP statute
involves summary judgment like procedure); Hatfield v. Herring, 326 So.
3d 944, 952 (La. App.) (‘‘[a] special motion [pursuant to the anti-SLAPP
statute] is a specialized defense motion akin to a motion for summary
judgment’’ (internal quotation marks omitted)), cert. denied, 328 So. 3d 424
(La. 2021); Young v. Davis, 259 Or. App. 497, 508,
314 P.3d 350 (2013) (goal
of special motion pursuant to anti-SLAPP statute is ‘‘similar to’’ summary
judgment); Garcia v. Semler, 663 S.W.3d 270, 276–77 (Tex. App. 2022) (anti-SLAPP statute ‘‘provides the same framework to dispose of a . . . motion
to dismiss as the summary-judgment framework’’); Barron v. Vanier, 190
S.W.3d 841, 843 (Tex. App. 2006) (anti-SLAPP statute ‘‘establishes a procedure whereby the trial court evaluates the merits of the lawsuit using a
summary-judgment-like procedure at an early stage of the litigation’’); Kruger v. Daniel, Docket No. 43155-6-II, 2013 WL 5339143, *3 n.4 (Wn. App.
September 17, 2013) (unpublished opinion) (stating that process set forth
in Washington anti-SLAPP statute ‘‘is identical to that of summary judgment’’
and court must ‘‘accept as true all evidence favorable to the plaintiff and
assess the defendant’s evidence only to determine if it defeats the plaintiff’s
submission as a matter of law’’ (internal quotation marks omitted)); see also
J. Standen, ‘‘The Anti-SLAPP Knockout: Litigation Incentives, the Seventh
Amendment, and the Lost Tort of Defamation,’’ 62 U. Louisville L. Rev.
293, 319 (2024) (‘‘[Anti-SLAPP] statutes have been compared favorably to
summary judgment. . . . Both procedural mechanisms typically require the
same or similar standard of proof; both facilitate pre-trial resolution of cases
in the hope of saving costs for the courts and the litigants; and both aim
to eliminate meritless cases.’’ (Footnotes omitted.)).
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Spinnato, supra,228 Conn. App. 794, quoting Elder v.
Kauffman, supra,204 Conn. App. 824. As one New
York court aptly observed, the motion to dismiss filed
pursuant to an anti-SLAPP statute ‘‘is analogous to an
accelerated summary judgment motion . . . .’’ Reeves
v. Associated Newspapers, Ltd., 232 App. Div. 3d 10,
24, 218 N.Y.S.3d 19 (2024).
Like motions for summary judgment, special motions
to dismiss may be filed immediately after a party is
served with a complaint.19 Moreover, in deciding both
special motions to dismiss and motions for summary
judgment, the court ‘‘does not weigh evidence or resolve
conflicting factual claims. Its inquiry is limited to
whether the plaintiff has stated a legally sufficient claim
and made a prima facie factual showing sufficient to
sustain a favorable judgment. . . . [The court] evaluates the defendant’s showing only to determine if it
defeats the plaintiff’s claim as a matter of law. . . .
[C]laims with the requisite minimal merit may proceed.’’
(Internal quotation marks omitted.) Mulvihill v. Spin-
nato, supra,228 Conn. App. 795; see also Robinson v.
V. D., 229 Conn. App. 316, 346,
328 A.3d 198 (2024) (§ 52-
196a ‘‘does not require trial courts to resolve disputed
issues of fact or to dismiss claims that otherwise would
survive summary judgment’’). In ruling on special
motions to dismiss, the court must ‘‘view the pleadings
and affidavits of the parties in the light most favorable
19
See General Statutes § 52-196a (c) (obligating moving party to file special
motion to dismiss ‘‘not later than thirty days after the return date of the
complaint, or the filing of a counterclaim or cross claim’’); Practice Book
§ 17-44 (‘‘any party may move for a summary judgment as to any cause of
action or defense as a matter of right at any time if no scheduling order
exists and the case has not been assigned for trial’’); see also Joe’s Pizza,
Inc. v. Aetna Life & Casualty Co., 236 Conn. 863, 867 n.8,
675 A.2d 441
(1996) (‘‘a party may move for summary judgment at any time’’); Nash v.
Roland Dumont Agency, Inc., Docket No. CV-XX-XXXXXXX-S, 2018 WL
6721442, *1 (Conn. Super. November 21, 2018) (‘‘[p]rior to filing an answer,
the defendants filed a motion for summary judgment, as permitted by Practice Book § 17-44’’).
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to the nonmoving party’’ when disputed issues of fact
arise; Mulvihill v. Spinnato, supra, 797; as it does in
ruling on motions for summary judgment. See, e.g., DurA-Flex, Inc. v. Dy, 349 Conn. 513, 561,
321 A.3d 295
(2024).
Because the court does not make factual findings or
credibility determinations in ruling on special motions
to dismiss, the legislature presumably was aware that
there is no ostensible need for an evidentiary hearing,
particularly since the parties are free to submit affidavits and other documentary evidence as part of their
pleadings. If a party believes that a particular witness
has information relevant to the special motion to dismiss, they may submit a sworn affidavit from that witness, which § 52-196a (e) (2) authorizes the court to
consider in ruling on a special motion to dismiss.20 Nothing in the present case precluded the parties from submitting affidavits from Kaiser, Detective Marquis, or the
plaintiff.21 See footnote 7 of this opinion.
20
An illustrative case is Kaufman v. Synnott, Docket No. CV-XX-XXXXXXXS, 2021 WL 4295356 (Conn. Super. August 27, 2021). After one of the defendants filed a special motion to dismiss the claims against her, the plaintiff
filed a request to conduct limited discovery in the form of depositions,
which the court granted. Id., *3. The depositions were taken and both parties
thereafter ‘‘filed affidavits [that] referenced testimony from the depositions.’’
Id. After permitting the parties to file memoranda ‘‘in support and in opposition to the special motion to dismiss,’’ the court heard ‘‘[o]ral argument’’
from the parties before ultimately granting the special motion to dismiss.
Id.; see also Talandar v. Manchester-Murphy, supra, 331 A.3d 1098–99 (trial
court denied plaintiff’s ‘‘request to present evidence’’ at hearing on special
motion pursuant to Vermont anti-SLAPP statute ‘‘but afforded him an opportunity to submit his proffered testimony in the form of an affidavit’’).
21
The parties also remained free to submit counteraffidavits to rebut their
opponent’s allegations. See, e.g., Costello v. Hartford Institute of Accounting, Inc., 193 Conn. 160, 164,
475 A.2d 310 (1984) (plaintiff filed affidavit
‘‘to counter’’ affidavit filed by defendant); Bayview Loan Servicing, LLC v.
Park City Sports, LLC, 180 Conn. App. 765, 777,
184 A.3d 1277 (in opposing
motion for summary judgment, defendants ‘‘did not attach any accompanying
counteraffidavits that recited specific facts to rebut the plaintiff’s affidavit
and documentary evidence’’), cert. denied, 330 Conn. 901,
192 A.3d 426
(2018); Harbison v. Norcal Mutual Ins. Co., Docket No. C043769, 2004 WL
1175332, *4 (Cal. App. May 27, 2004) (explaining that California anti-SLAPP
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In addition, pitfalls abound in permitting evidentiary
hearings on special motions to dismiss, which the legislature may have sought to avoid in enacting § 52-196a.
Holding evidentiary hearings invariably will increase
the time and cost that a moving party must expend to
dispose of meritless litigation. In this regard, we note
that, although the special motion to dismiss in the present case was filed in March, 2023, the court held an
evidentiary hearing in September, 2023, and did not
render its decision until March, 2024.
Attorneys, too, will be placed in a difficult position,
as they will have to either depose key witnesses in
anticipation of the evidentiary hearing at their client’s
expense or risk conducting a cross-examination of
those witnesses without the benefit of prior deposition
testimony.22 In this regard, we note that both the plaintiff
and Detective Marquis testified at some length at the
September 18, 2023 evidentiary hearing in the present
case and were subject to cross-examination.
Moreover, although § 52-196a (g) provides that ‘‘[t]he
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,’’ § 52-196a is silent as to the
efficacy of testimony adduced at an evidentiary hearing
on a special motion to dismiss in future proceedings.
Is such testimony admissible at trial in cases in which
the court denies the special motion to dismiss? Can it
be used for impeachment purposes? If the legislature
statute requires court to ‘‘ ‘consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based’ ’’
and noting that ‘‘the motions [in that case were] predicated on the first
amended complaint, the answers by way of a general denial and affirmative
defenses by [the defendants], and affidavits and counter affidavits’’).
22
Because ‘‘all discovery’’ is stayed upon the filing of a motion to dismiss;
General Statutes § 52-196a (d); attorneys also will be obligated, as a preliminary matter, to file a request for permission to conduct limited discovery
pursuant to § 52-196a (d) prior to taking any depositions, which will further
increase the time and cost to the parties and the court.
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Aguilar v. Eick
intended to permit the court to hear testimony at an
evidentiary hearing, it presumably would have addressed
the issue of its admissibility in future proceedings, as
it explicitly did in § 52-196a (g) with respect to the
court’s determinations on a special motion to dismiss.
Furthermore, in deciding both special motions to dismiss and motions for summary judgment,23 the court
does not make credibility determinations or factual
findings.24 See Anderson v. Liberty Lobby, Inc., 477
23
We recognize that the legal standard that governs summary judgment
motions is fundamentally distinct from the burden shifting framework set
forth in § 52-196a. See footnote 6 of this opinion. To be clear, it is the
‘‘procedural mechanism’’ of § 52-196a that is ‘‘similar to a motion for summary judgment.’’ (Internal quotation marks omitted.) Mulvihill v. Spinnato,
supra,228 Conn. App. 794. Although the trial court decides a special motion
to dismiss under a different legal standard than that applicable to summary
judgment motions, the procedure by which the court reaches its decision—
and the materials that it properly may consider—is largely identical.
24
For that reason, the defendant’s reliance on General Statutes §§ 52-
278d, 54-46a, and 46b-128a is inapt. In applying those statutes, the trial court
makes credibility determinations and factual findings. See, e.g., Prescott v.
Gilshteyn, 227 Conn. App. 553, 555,
322 A.3d 1060 (‘‘[i]n its memorandum
of decision granting the plaintiff’s application for a prejudgment remedy
[pursuant to § 52-278d], the court made the following factual findings and
credibility determinations’’), cert. denied, 350 Conn. 926,
326 A.3d 248 (2024);
Tatoian v. Tyler, Superior Court, judicial district of Tolland, Docket No.
CV-XX-XXXXXXX-S (May 29, 2015) (60 Conn. L. Rptr. 462, 462) (trial court may
have to make ‘‘credibility determinations to decide whether probable cause
exists’’ at hearing held pursuant to § 54-46a); In re Jason W., Docket No.
JV-XX-XXXXXXX-A, 2014 WL 7647828, *2 (Conn. Super. December 10, 2014)
(trial court makes ‘‘factual findings’’ in determining whether child is competent pursuant to § 46b-128a).
Also unavailing is the defendant’s reliance on General Statutes §§ 54-86f
and 17a-502. Section 54-86f explicitly provides for an ‘‘in camera hearing’’
on a motion to offer ‘‘evidence containing an offer of proof’’ regarding the
sexual conduct of the victim in sexual assault prosecutions and permits
the court to grant such a motion if it ‘‘finds that the evidence meets the
requirements of this section and that the probative value of the evidence
outweighs its prejudicial effect on the victim . . . .’’ General Statutes § 54-
86f (a). Section 54-86f thus expressly provides for a hearing at which evidence
is adduced. The same is true for § 17a-502, the emergency commitment
statute, which explicitly confers on ‘‘any person detained under this section’’
who ‘‘requests a hearing’’ the ‘‘right to cross-examine all witnesses testifying’’
at the hearing. General Statutes 17a-502 (d). Section 52-196a, by contrast,
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U.S. 242, 255, 106 S. Ct. 2505,
91 L. Ed. 2d 202 (1986)
(‘‘[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from
the facts are jury functions, not those of a judge [when]
ruling on a motion for summary judgment’’); Dur-A-
Flex, Inc. v. Dy, supra, 349 Conn. 561 (‘‘a trial court
may not resolve credibility issues when ruling on a
motion for summary judgment’’); Robinson v. V. D., supra,
229 Conn. App. 346 (‘‘a court considering a special
motion to dismiss does not need to make factual findings’’ (internal quotation marks omitted)); Mulvihill v.
Spinnato, supra, 228 Conn. App. 794–95 (explaining
that ‘‘courts reviewing [special motions to dismiss] are
obligated to construe the pleadings, affidavits, and other
proof submitted in the light most favorable to the non-moving party’’; they do not weigh evidence or resolve
conflicting factual claims in ruling on anti-SLAPP
motion to dismiss); Soukup v. Law Offices of Herbert
Hafif, 39 Cal. 4th 260, 291,
139 P.3d 30,
46 Cal. Rptr.
3d 638 (2006) (in deciding anti-SLAPP motion, ‘‘the trial
court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant . . .
though the court does not weigh the credibility or comparative probative strength of competing evidence’’
(citation omitted; emphasis in original; internal quotation marks omitted)); All One God Faith, Inc. v.
Organic & Sustainable Industry Standards, Inc., 183
Cal. App. 4th 1186, 1199,
107 Cal. Rptr. 3d 861 (2010)
(‘‘the trial court does not make factual findings in ruling
on an anti-SLAPP motion’’); Coomer v. Salem Media of
Colorado, Inc., 565 P.3d 1133, 1142 (Colo. App. 2025)
(‘‘[w]hen evaluating [the] evidence [submitted in support and opposition to an anti-SLAPP motion], neither
the trial court nor we make factual findings, make credibility determinations, or weigh the evidence to resolve
does not provide for the presentation of evidence at the statutorily
required hearing.
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factual conflicts’’); Dillon v. Seattle Deposition Reporters, LLC, 179 Wn. App. 41, 88,
316 P.3d 1119 (‘‘[t]he
trial court may not find facts or make determinations
of credibility’’ in ruling on anti-SLAPP motion), review
granted, 180 Wn. 2d 1009,
325 P.3d 913 (2014), review
dismissed (Wn. July 23, 2015).
In the summary judgment context, courts have recognized that evidentiary hearings are fraught with peril.
As the United States Court of Appeals for the Tenth
Circuit has cautioned, ‘‘oral testimony at the summary
judgment stage creates a strong temptation for a judge
to assess the witness’ credibility.’’ Seamons v. Snow,
206 F.3d 1021, 1026 (10th Cir. 2000); see also Ahlers v.
Schebil, 188 F.3d 365, 369 (6th Cir. 1999) (‘‘[c]redibility
judgments and weighing of the evidence are prohibited
during the consideration of a motion for summary judgment; rather, the evidence should be viewed in the light
most favorable to the non-moving party’’); Bank of New
York Mellon v. Mangiafico, 198 Conn. App. 722, 731,
234
A.3d 1115 (2020) (‘‘testimony’’ at summary judgment
hearing cannot be ‘‘considered by the trial court as
a part of [a party’s] evidentiary submission’’ (internal
quotation marks omitted)); Wells Fargo Bank, N.A. v.
Ferraro, 194 Conn. App. 467, 470–71,
221 A.3d 520
(2019) (trial court improperly ‘‘held an evidentiary hearing on the plaintiff’s motion for summary judgment’’
and ‘‘improperly permitted, considered and relied on
live testimony from witnesses at [that] evidentiary hearing’’); Braca v. Utzler, 134 Conn. App. 460, 463 n.4,
38 A.3d 1249 (2012) (‘‘A summary judgment should be
summary; that is, made in a prompt, simple manner
without a full-scale trial. The opposition to such a
motion may include the filing of affidavits or other
documentary evidence . . . but does not include the
live testimony of any witnesses.’’ (Citation omitted.));
Esquivel v. Watters, 286 Kan. 292, 295–96,
183 P.3d 847
(2008) (court ‘‘must refrain from the temptation to pass
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on credibility and to balance and weigh evidence, which
are proper functions for the factfinder at trial’’ when
considering summary judgment motions (internal quotation marks omitted)).
In our view, courts must exercise similar caution in
acting on special motions to dismiss. See, e.g., Key v.
Tyler, 34 Cal. App. 5th 505, 520,
246 Cal. Rptr. 3d 224
(2019) (‘‘[T]he anti-SLAPP procedure does not require—
or even permit—a court to decide contested facts based
upon affidavits. Rather, like a motion for summary judgment, a motion . . . under the anti-SLAPP statute
requires a court simply to determine whether the plaintiff’s showing, if accepted by the trier of fact, would be
sufficient to sustain a favorable judgment. . . . Such
a decision must be made without resolving evidentiary
conflicts.’’ (Citation omitted; emphasis in original; internal quotation marks omitted.)).
In concluding that the trial court committed reversible error in Magee Avenue, LLC v. Lima Ceramic Tile,
LLC, 183 Conn. App. 575,
193 A.3d 700 (2018), by permitting ‘‘live testimony during the hearing on the motion
for summary judgment’’; id., 585; we explained that
‘‘[t]he court’s consideration of this testimony necessarily required it to make credibility determinations and
factual findings, a reality supported by the court’s memorandum of decision . . . .’’ Id., 586. The court’s memorandum of decision in the present case suffers a similar
infirmity. At its outset, the court stated that it ‘‘finds
the following facts from the complaint, the affidavit of
[the defendant], the affidavit of [Garces], and testimony
given at the September 18, 2023 court hearing on the
special motion to dismiss.’’ (Emphasis added.) Later in
its decision, the court found that ‘‘[t]he facts are that
the defendant merely reported to J’s pediatrician and
subsequently to the department what she was told by
J.’’ The court also found that the defendant’s statements
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to the pediatrician and department officials were ‘‘entitled to a conditional privilege’’ pursuant to General Statutes (Rev. to 2023) § 17a-101e (b)25 because they were
made in good faith. In so doing, the court overlooked
the fact that whether good faith exists is a question of
fact; see Bhatia v. Debek, 287 Conn. 397, 413,
948 A.2d
1009 (2008); that the plaintiff here disputed.26 See, e.g.,
United Oil Co. v. Urban Redevelopment Commission,
158 Conn. 364, 381,
260 A.2d 596 (1969) (‘‘[w]hether or
not the defendants acted . . . in good faith is a strongly
contested genuine issue of material fact’’). The present
case thus exemplifies the dangers of holding evidentiary
hearings on special motions to dismiss at which testimony is offered.27
25
General Statutes (Rev. to 2023) § 17a-101e (b) provides in relevant part:
‘‘Any person, institution or agency which, in good faith, (1) makes a report
pursuant to sections 17a-101a to 17a-101d, inclusive, and 17a-103 . . . shall
be immune from any liability, civil or criminal, which might otherwise arise
from or be related to the actions taken pursuant to this subsection and shall
have the same immunity with respect to any judicial proceeding which
results from such report or actions, provided such person did not perpetrate
or cause such abuse or neglect. . . .’’
26
We reiterate that, in his complaint, the plaintiff averred that the defendant had made a false report to J’s pediatrician soon after (1) the Probate
Court authorized the ‘‘substantial settlement’’ of the medical malpractice
action and (2) the plaintiff had ‘‘asked the defendant to return [J] to his
care and custody.’’ He further averred that the defendant had ‘‘a significant
motive to coach’’ J to make false accusations of abuse. In his opposition
to the special motion to dismiss, the plaintiff argued that the defendant
acted in ‘‘self-interest,’’ rather than good faith, by making a false report of
abuse. He also submitted the sworn affidavit of Attorney Garces, who stated
in relevant part that the defendant ‘‘has accessed the [settlement] trust funds
in the dual capacities as (i) conservator for [Pierre]; and (ii) guardian of
[J],’’ that the Probate Court has ordered the defendant ‘‘to account for the
funds she received’’ as conservator for Pierre, and that, ‘‘[t]o date, [the
defendant] has failed to provide a proper accounting with proper backup
documentation establishing exactly how much of [Pierre’s] money she
received, how much of it she has spent, and what she spent it on.’’ In light
of our resolution of this appeal, we do not pass on the question of whether
the plaintiff’s submissions establish probable cause on any count of his
complaint.
27
Because the trial court in the present case made findings of fact in its
memorandum of decision on the defendant’s special motion to dismiss,
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Lastly, and perhaps most importantly, construing
§ 52-196a as authorizing the trial court to hold evidentiary hearings on special motions to dismiss would
thwart the overarching purpose of that statute, which
is to dispose of meritless SLAPP litigation quickly and
at minimal cost. See Smith v. Supple, supra, 346 Conn.
949 (§ 52-196a ‘‘affords a [moving party] a substantive
right to avoid litigation on the merits that can be costly
there is at least a colorable claim that the plaintiff’s constitutional rights
may have been violated. See Conn. Const., art. I, § 19 (‘‘[t]he right of trial
by jury shall remain inviolate’’); Robinson v. V. D., supra, 229 Conn. App.
345–47 (concluding that § 52-196a ‘‘does not . . . violate the plaintiffs’ constitutional right to a jury trial’’ under Connecticut constitution because it
‘‘does not require fact-finding by the court’’); see also Godin v. Schencks,
629 F.3d 79, 90 n.18 (1st Cir. 2010) (observing that ‘‘[t]here may be a concern’’
that Maine anti-SLAPP statute violates seventh amendment right to trial by
jury to extent that it allows ‘‘a judge to resolve a disputed material issue
of fact’’ in acting on anti-SLAPP motion); Thurlow v. Nelson, supra, 263
A.3d 501 (noting that ‘‘[m]any other courts have recognized and addressed
[constitutional] problems with ‘fact-finding’ within anti-SLAPP cases’’);
Leiendecker v. Asian Women United of Minnesota, 895 N.W.2d 623, 635
(Minn. 2017) (concluding that Minnesota anti-SLAPP statute ‘‘unconstitutionally instructs [trial] courts to usurp the role of the jury by making pretrial
factual findings that can, depending on the findings, result in the complete
dismissal of the underlying action’’); Opinion of the Justices, 138 N.H. 445,
450–51, 641 A.2d 1012 (1994) (concluding in response to certified question
that proposed anti-SLAPP statute would violate plaintiff’s right ‘‘to have all
factual issues resolved by the jury’’ under part I, article 20 of New Hampshire
constitution because it would require trial court to ‘‘resolve the merits of
a disputed factual claim’’ in acting on anti-SLAPP motion); Davis v. Cox,
183 Wn. 2d 269, 294,
351 P.3d 862 (2015) (concluding that Washington anti-SLAPP statute ‘‘violates the right of trial by jury under article I, section 21
of the Washington Constitution’’ because it ‘‘invades the jury’s essential role
of deciding debatable questions of fact’’); J. Standen, supra, 62 U. Louisville
L. Rev. 293–94 (‘‘several key dimensions [of] anti-SLAPP statutes impinge
on the plaintiff’s jury trial rights to render them constitutionally problematic’’). For that reason, we disagree with the defendant’s assertion in her
supplemental brief that the court’s decision to hold an evidentiary hearing,
and to make factual findings predicated in part on testimony presented at
that hearing, does not warrant reversal because it caused no prejudice to
the plaintiff. See, e.g., Evans v. General Motors Corp., 277 Conn. 496, 508–19,
893 A.2d 371 (2006) (concluding that trial court improperly denied plaintiffs’
constitutional right to jury trial on trade secrets claims and reversing without
conducting harmless error analysis).
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and burdensome’’); Priore v. Haig, supra,344 Conn.
659 (§ 52-196a ‘‘provides a moving party with the opportunity to have the lawsuit dismissed early in the proceeding’’); Pryor v. Brignole, supra,
231 Conn. App. 664
n.7 (§ 52-196a ‘‘is intended to provide a prompt remedy
. . . and to minimize expense for moving parties’’ (citation omitted; internal quotation marks omitted)); cf.
Wells Fargo Bank, N.A. v. Henderson, 175 Conn. App.
474, 487,
167 A.3d 1065 (2017) (‘‘[i]f evidentiary presentations and testimony were to be permitted, the intent to
reduce litigation costs by way of the summary judgment
procedure would be undermined’’). In interpreting § 52-
196a, this court ‘‘must avoid a construction that fails
to attain a rational and sensible result that bears directly
on the purpose the legislature sought to achieve.’’ Hall
v. Gilbert & Bennett Mfg. Co., 241 Conn. 282, 303,
695
A.2d 1051 (1997); see also Builders Service Corp. v.
Planning & Zoning Commission, 208 Conn. 267, 276,
545 A.2d 530 (1988) (‘‘[a] statute, of course, should not
be interpreted to thwart its purpose’’).
In light of the plain mandate of § 52-196a, which is
intended to quickly dispose of meritless SLAPP litigation at minimal cost through consideration of the
‘‘pleadings and supporting and opposing affidavits of
the parties,’’ we conclude that § 52-196a cannot reasonably be read to authorize the trial court to conduct
an evidentiary hearing on a special motion to dismiss.
Accordingly, both the September 18, 2023 evidentiary
hearing and the court’s reliance on testimony adduced
at that hearing in its memorandum of decision were
improper.
B
Even if we were to conclude that § 52-196a is ambiguous as to whether the legislature intended to permit
evidentiary hearings on special motions to dismiss,
which we do not, our construction of § 52-196a would
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be the same. The legislative history of § 52-196a, the
policy that it was designed to implement, and persuasive authority from other states further convince us
that the legislature did not intend evidentiary hearings
to be held on special motions to dismiss.
As this court recently noted, ‘‘[i]n 2017, the legislature
passed No. 17-71 of the 2017 Public Acts (P.A. 17-71),
which became effective on January 1, 2018, joining dozens of states that already had enacted anti-SLAPP statutes.’’ Pryor v. Brignole, supra, 231 Conn. App. 676.
Then Representative William Tong, who sponsored the
bill in the House of Representatives, explained that ‘‘the
[anti-SLAPP] statute is designed to protect people from
meritless claims [that] are known to be meritless [and]
frivolous . . . .’’ 60 H.R. Proc., Pt. 16, 2017 Sess., pp.
6911–12. He further observed that the special motion
to dismiss is ‘‘an extraordinary remedy’’ that permits
the court ‘‘to terminate . . . litigation early’’ and
opined that ‘‘the attorney’s fees provision [codified in
§ 52-196a (f)] is a check on the parties because of the
extraordinary nature of the relief’’ provided by an anti-SLAPP statute. Id., p. 6912, remarks of Representative Tong.
During the legislative debate on P.A. 17-71, Representative Doug Dubitsky specifically inquired whether ‘‘an
evidentiary hearing . . . would take place’’ on the special motion to dismiss. Id., p. 6888. In response, Representative Tong explained: ‘‘I think it contemplates that
the court will certainly conduct a hearing. It doesn’t
contemplate that a specific evidentiary hearing so docketed would occur but it provides that there will be a
hearing on the evidence presented, the pleading, supporting and opposing affidavits . . . . [T]here will be
an evidentiary hearing in that sense.’’ Id., p. 6889. That
legislative history comports with our conclusion that
§ 52-196a (e) (2) confines the court’s consideration to
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the pleadings and the affidavits submitted by the parties
in ruling on a special motion to dismiss.
The legislative history of § 52-196a also indicates that
it was predicated on, and borrowed heavily from, anti-SLAPP statutes enacted in other states. See 60 S. Proc.,
Pt. 6, 2017 Sess., p. 2236, remarks of Senator John A.
Kissel; see also Smith v. Supple, supra, 346 Conn. 953
n.22 (‘‘[a]n examination of . . . sister state case law is
particularly instructive . . . because the legislative
history of our anti-SLAPP statute signifies that it was
modeled after anti-SLAPP statutes that came before it
in other states’’). For that reason, relevant authority
from sibling states is pertinent to the present inquiry.
Notably, courts in several jurisdictions have described
the hearing required under their anti-SLAPP statutes
as ‘‘a nonevidentiary hearing.’’ Jogan Health, LLC v.
Scripps Media, Inc., 565 P.3d 1160, 1166 (Colo. App.
2025); see, e.g., id. (‘‘[t]he [trial] court held a nonevidentiary hearing; reviewed the parties’ briefs, documentary
evidence, and affidavits; and granted the [defendants’]
special motion to dismiss’’); Emory University v. Metro
Atlanta Task Force for the Homeless, Inc., 320 Ga. App.
442, 442,
740 S.E.2d 219 (2013) (‘‘[a]fter a nonevidentiary
hearing, the trial court denied the [anti-SLAPP motion],
finding that the claims did not come within the scope
of the anti-SLAPP statute’’); Gillette Co. v. Provost, 91
Mass. App. 133, 136, 74 N.E.3d 275 (2017) (‘‘[a]fter considering [the affidavits submitted by the parties] and
conducting a nonevidentiary hearing, the [trial] judge
issued a memorandum of decision and order denying
the motion to dismiss’’); Smith v. Crestview NuV, LLC,
565 S.W.3d 793, 796 (Tex. App. 2018) (‘‘[t]he trial court
held a nonevidentiary hearing on the motion [to dismiss
pursuant to the anti-SLAPP statute]’’); cf. Armin v. Riverside Community Hospital, 5 Cal. App. 5th 810, 816,
210 Cal. Rptr. 3d 388 (2016) (‘‘this case arrives here by
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way of an anti-SLAPP motion—sans evidentiary hearing’’).
Other courts have rejected claims that an evidentiary
hearing is required on special motions to dismiss pursuant to an anti-SLAPP statute. See, e.g., Torres v. Armenta, Docket No. B173553, 2005 WL 591123, *4 (Cal.
App. March 15, 2005) (unpublished opinion) (‘‘Appellant’s assertion that he was entitled to an evidentiary
hearing is also without merit. Under [the anti-SLAPP
statute], the trial court . . . considers the pleadings,
and supporting and opposing affidavits stating the facts
upon which the liability or defense is based.’’ (Internal
quotation marks omitted.)); Cervantes v. Law Offices of
John G. Hanlin, Docket No. A101102, 2004 WL 1638174,
*7–8 (Cal. App. July 23, 2004) (unpublished opinion)
(explaining that, although nonmoving party ‘‘must show
a ‘probability’ of prevailing on the challenged causes
of action’’ under second prong of anti-SLAPP statute,
‘‘this requirement does not necessitate a mini-trial and
full-fledged evidentiary hearing on the substantive merits of the challenged claims’’ and noting that ‘‘the critical
evidence was that presented in the affidavits’’); Holder
v. Young, Docket Nos. 1145, 1147, 2023 WL 3674691,
*20 (Md. App. May 26, 2023) (unpublished opinion)
(‘‘the anti-SLAPP statute does not require an evidentiary
hearing, but rather a legal hearing on the pleadings’’),
cert. denied, 485 Md. 144,
300 A.3d 854 (2023), and cert.
denied sub nom. Uncle Eddie’s Brokedown Palace, LLC
v. Young, 485 Md. 141,
300 A.3d 853 (2023), cert. denied,
U.S. , 144 S. Ct. 2522,
219 L. Ed. 2d 1201 (2024);
Covanta Semass, LLC v. Earthsource, Inc., Docket No.
14-P-651, 2015 WL 1133950, *1 n.3 (Mass. App. March 16,
2015) (unpublished opinion) (‘‘an evidentiary hearing
is not required on a motion filed pursuant to [the anti-SLAPP statute]’’); Galleria 2425 Owner, LLC v. Drinnon, Docket No. 14-24-00204-CV, 2025 WL 1109447, *3
(Tex. App. April 15, 2025) (‘‘the trial court should not
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consider live testimony on the merits of [an anti-SLAPP]
motion to dismiss’’).28
28
In her supplemental brief, the defendant relies on four opinions from
other jurisdictions for the proposition that ‘‘four states permit evidentiary
hearings when ruling on anti-SLAPP motions . . . .’’ See Halper v. Moore,
Docket No. 23CA0325, 2023 WL 12051888, *3 (Colo. App. December 21,
2023) (unpublished opinion) (noting that, ‘‘in the [trial] court’s order granting
the special motion to dismiss, which it issued after holding the December
2022 evidentiary hearing, the court made credibility findings that undercut
the plaintiff’s position’’); Jefferson v. Stripling, 316 Ga. App. 197, 200–201,
728 S.E.2d 826 (2012) (plaintiff claimed that trial court improperly failed to
hold ‘‘an evidentiary hearing on the motion’’; Court of Appeals of Georgia
concluded that ‘‘[t]he record reflects that no hearing was held on the [a]nti–
SLAPP defense, as required by the statute’’ and thus remanded case ‘‘for a
hearing as required by the [a]nti-SLAPP statute’’); Brooks Automation, Inc.
v. Blueshift Technologies, Inc., Docket No. 06-P-1063, 2007 WL 1713370, *1
(Mass. App. June 14, 2007) (unpublished opinion) (‘‘[t]he trial judge decided,
without objection, that the trial would function as an evidentiary hearing
on the anti-SLAPP motion’’), review denied, 449 Mass. 1110,
873 N.E.2d 247
(2007); Landry’s, Inc. v. Animal Legal Defense Fund, 566 S.W.3d 41, 68
(Tex. App. 2018) (rejecting claim that Texas anti-SLAPP statute violates
open courts provision of state constitution by requiring trial court ‘‘to decide
a motion to dismiss on disputed fact issues without an evidentiary hearing’’
because factual issues in that case were ‘‘immaterial’’), rev’d in part on other
grounds, 631 S.W.3d 40 (Tex. 2021). None of those cases involved a challenge
to the propriety of an evidentiary hearing conducted on an anti-SLAPP
motion and none contains any analysis of that issue.
Moreover, all four of those cases appear to be inconsistent with more
recent authority from the jurisdictions in question. See, e.g., Jogan Health,
LLC v. Scripps Media, Inc., supra, 565 P.3d 1166 (‘‘[t]he [trial] court held
a nonevidentiary hearing; reviewed the parties’ briefs, documentary evidence, and affidavits; and granted the . . . special motion to dismiss’’ pursuant to Colorado anti-SLAPP statute); VOA Sunset Housing LP v. D’Angelo,
555 P.3d 635, 643 (Colo. App. 2024) (concluding that trial court ‘‘prematurely
denied the special motion to dismiss without affording the [plaintiff] an
opportunity to offer . . . evidence’’ and remanding with direction ‘‘to reconsider the motion after allowing the parties an opportunity to present supporting and opposing affidavits, as contemplated by [Colo. Rev. Stat. §] 13-20-
1101 (3) (b)’’); Tender Care Veterinary Center, Inc. v. Lind-Barnett, 544
P.3d 693, 696 (Colo. App. 2023) (‘‘[a]fter reviewing the parties’ briefs and
accompanying materials and holding a nonevidentiary hearing, the district
court denied defendants’ [anti-SLAPP] motion’’), cert. granted, 2024 WL
4535434 (Colo. September 3, 2024); Emory University v. Metro Atlanta Task
Force for the Homeless, Inc., supra, 320 Ga. App. 442 (‘‘[a]fter a nonevidentiary hearing, the trial court denied the motion to dismiss’’ pursuant to
Georgia anti-SLAPP statute); Gillette Co. v. Provost, supra, 91 Mass. App.
136 (‘‘[a]fter considering [the affidavits submitted by the parties] and conducting a nonevidentiary hearing, the [trial] judge issued a memorandum
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The Supreme Court of Vermont recently confronted
this question in Talandar v. Manchester-Murphy,
supra,331 A.3d 1093. Like § 52-196a (e) (2), Vermont’s
anti-SLAPP statute provides that, ‘‘[i]n making its determination, the court shall consider the pleadings and
supporting and opposing affidavits stating the facts
upon which the liability or defense is based.’’ 12 Vt.
Stat. Ann. § 1041 (e) (2) (2023). Moreover, similar to
§ 52-196a (e) (1), Vermont’s anti-SLAPP statute provides
that ‘‘[t]he court shall hold a hearing on a special motion
. . . not more than 30 days after service of the motion
unless good cause exists for an extension.’’ 12 Vt. Stat.
Ann. § 1041 (d) (2023). In Talandar, the plaintiff claimed
that the court had improperly denied his request for an
evidentiary hearing.29 Talandar v. Manchester-Murphy,
supra, 1109. Although he conceded that the plain language of that statute does not provide for an evidentiary
hearing, the plaintiff argued that the hearing required
under 12 Vt. Stat. Ann. § 1041 (d) ‘‘would be ‘meaningless’ in the absence of an opportunity to take evidence,
and the denial of his request therefore ‘violated the spirit
of the statutory hearing requirement.’ ’’ Id., 1109–10.
The Supreme Court of Vermont rejected that contention, stating: ‘‘We are not persuaded. If the [l]egislature intended the hearing mandated by 12 Vt. Stat. Ann.
§ 1041 (d) to be evidentiary in nature, it could have
of decision and order denying the motion to dismiss’’ pursuant to Massachusetts anti-SLAPP statute); Covanta Semass, LLC v. Earthsource, Inc., supra,
2015 WL 1133950 *1 n.3 (‘‘an evidentiary hearing is not required on a motion
filed pursuant to [the anti-SLAPP statute]’’); Galleria 2425 Owner, LLC v.
Drinnon, supra, 2025 WL 1109447, *3 (‘‘the trial court should not consider
live testimony on the merits of a . . . motion to dismiss’’ pursuant to Texas
anti-SLAPP statute); Smith v. Crestview NuV, LLC, supra, 565 S.W.3d 796
(‘‘[t]he trial court held a nonevidentiary hearing on the [anti-SLAPP]
motion’’).
29
In denying the plaintiff’s request to present evidence on the hearing on
the anti-SLAPP motion, the trial court ‘‘afforded him an opportunity to
submit his proffered testimony in the form of an affidavit.’’ Talandar v.
Manchester-Murphy, supra,331 A.3d 1099.
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easily so specified—just as it has in a variety of other
statutes. . . . Where, as here, the Legislature has demonstrated that it knows how to provide explicitly for
the requested action, we are reluctant to imply such [an]
action without legislative authority. . . . Moreover, [i]t
is inappropriate to read into a statute something which
is not there unless it is necessary in order to make the
statute effective. . . . It is not clear why an evidentiary
hearing would be necessary to effectuate the anti-SLAPP statute where it specifically contemplates resolution of a special motion . . . based on the pleadings
and affidavits. . . . [T]he legislation’s underlying purposes are broadly protecting petitioning activity and
promoting resolution of SLAPP litigation quickly with
minimum cost. . . . Consistent with these goals, it
imposes tight timelines on each step in the resolution
of [an anti-SLAPP motion] and provides for an award
of attorney’s fees if the motion is granted. . . . Reading
an evidentiary-hearing requirement into the statute
would counteract this statutory purpose. Given the
great caution that must be exercised in construing the
anti-SLAPP statute, we decline [the] plaintiff’s invitation
to do so.’’ (Citations omitted; internal quotation marks
omitted.) Id., 1110. In our view, that reasoning is compelling and consistent with Connecticut precedent on
§ 52-196a.
The jurisprudence of the Supreme Judicial Court of
Maine on its anti-SLAPP statute offers a cautionary tale.
Like § 52-196a (e) (1), Maine’s anti-SLAPP statute
‘‘call[ed] for an expedited hearing’’ on the special motion
to dismiss; Morse Bros., Inc. v. Webster, 772 A.2d 842,
848 (Me. 2001); and, like § 52-196a (e) (2), provided
that, in ruling on a special motion to dismiss, ‘‘the court
shall consider the pleading and supporting and opposing affidavits stating the facts upon which the liability
or defense is based.’’30 Id., 846; see also Smith v. Supple,
30
Maine repealed its anti-SLAPP statute, Me. Rev. Stat. Ann. tit. 14, § 556,
earlier this year, and replaced it with ‘‘the Uniform Public Expression Protec-
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supra, 346 Conn. 956 n.25 (noting that ‘‘Maine’s anti-SLAPP statute . . . is also similar in its wording to our
anti-SLAPP statute’’).
Although the Supreme Judicial Court of Maine recognized that the relevant inquiry under the anti-SLAPP
statute is twofold in nature; see, e.g., Morse Bros., Inc.
v. Webster, supra,772 A.2d 849; the second prong of
that inquiry bedeviled the court. In Morse Bros., Inc.,
the court held that, in ruling on a special motion to
dismiss, the evidence should be viewed ‘‘in the light
most favorable to the moving party . . . .’’ Id. Eleven
years later, the court revisited that standard and characterized it as a ‘‘converse summary-judgment-like standard . . . .’’ (Internal quotation marks omitted.) Nader
v. Maine Democratic Party, 41 A.3d 551, 561 (Me. 2012).
The court in Nader thus overruled Morse Bros., Inc.,
and, ‘‘[t]o avoid an unconstitutional application of the
law,’’ held that the anti-SLAPP statute ‘‘must be construed, consistent with usual motion-to-dismiss practice, to permit courts to infer that the allegations in
a plaintiff’s complaint and factual statements in any
affidavits responding to a special motion to dismiss are
true.’’ Id., 562.
In 2017, the Supreme Judicial Court of Maine abandoned the approach adopted in Nader, stating in relevant part: ‘‘We now hold . . . contrary to what we indicated in Nader [v. Maine Democratic Party, supra, 41
tion Act.’’ See Me. Rev. Stat. Ann. tit. 14, § 731 et seq. (2025). That new act
provides in relevant part that, ‘‘[i]n ruling on a [special motion to dismiss],
the court shall consider the pleadings, the motion, any reply or response
to the motion and any evidence that could be considered in ruling on a
motion for summary judgment . . . .’’ Me. Rev. Stat. Ann. tit. 14, § 737
(2025). Accordingly, permissible evidence under Maine’s current anti-SLAPP
statute is confined to that which properly may be presented in connection
with a motion for summary judgment. Cf. Trott v. H.D. Goodall Hospital,
66 A.3d 7, 14 (Me. 2013) (‘‘at the summary judgment stage . . . the undisputed facts are gleaned from paper submissions and not from the testimony
of live witnesses’’).
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A.3d 551], that if the plaintiff meets this prima facie
burden for any or all of the defendant’s petitioning
activities, the special motion to dismiss is not then
automatically denied. Rather, we establish an additional
procedural component whereby, on motion by either
party . . . the court conducts an evidentiary hearing.
. . . If neither party requests . . . the evidentiary
hearing, however, the court shall decide whether the
plaintiff has met this burden by a preponderance of
the evidence based only on the parties’ submissions in
seeking and opposing the special motion to dismiss.’’
(Citations omitted; footnotes omitted.) Gaudette v.
Davis, 160 A.3d 1190, 1198–99 (Me. 2017).
In 2021, the court reversed course once again. As it
explained: ‘‘[W]e are now convinced that in our attempt
to craft a process that would address the gaps in direction regarding [the] application of the [anti-SLAPP] statute . . . we have taken a step too far . . . .’’ (Citation
omitted; internal quotation marks omitted.) Thurlow v.
Nelson, 263 A.3d 494, 502 (Me. 2021). The court thus
‘‘abandon[ed] the third step we adopted in Gaudette [v.
Davis, supra, 160 A.3d 1190, that added an evidentiary
hearing requirement to the anti-SLAPP statute] and
return[ed] to the framework . . . adopted in Nader [v.
Maine Democratic Party, supra,41 A.3d 551] . . . .’’
Id. As that tortured history in Maine exemplifies, courts
should be wary of reading into anti-SLAPP statutes an
evidentiary hearing provision that is not expressly
stated therein.
We are also cognizant of the policy that § 52-196a
was designed to implement. Our Supreme Court has
explained that ‘‘SLAPP suits . . . are by definition frivolous lawsuits . . . .’’ Smith v. Supple, supra, 346
Conn. 935. Critically, § 52-196a was not designed to
weed out cases that are weak. Rather, it is intended to
quickly dispose of frivolous and meritless ones; see
Mulvihill v. Spinnato, supra,228 Conn. App. 801; as
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the legislative history confirms. See, e.g., 60 S. Proc.,
supra, p. 2235, remarks of Senator Paul R. Doyle (§ 52-
196a is intended ‘‘to assist people that are sued on their
free speech rights to have a means to quickly get rid
of frivolous lawsuits’’); 60 H.R. Proc., supra, p. 6879,
remarks of Representative Tong (§ 52-196a ‘‘provides
for a special motion to dismiss so that early in the
process somebody who’s speaking and exercised their
constitutional rights can try to dismiss a frivolous or
abusive claim that has no merit’’); id., pp. 6911–12 (‘‘the
statute is designed to protect people from meritless
claims [that] are known to be meritless [and] frivolous’’).
The granting of a special motion to dismiss is ‘‘[an]
extraordinary remedy . . . .’’ (Internal quotation
marks omitted.) Smith v. Supple, supra, 346 Conn. 946.
Unlike the granting of a motion to strike, in which
plaintiffs are afforded the opportunity to file an amended
pleading; see Practice Book § 10-44; the granting of a
special motion to dismiss terminates the action entirely.
For that reason, as well as the policy preference to
bring about a trial on the merits of a dispute whenever
possible and to secure for the litigant his or her day in
court;31 see Mulvihill v. Spinnato, supra,228 Conn.
App. 796; special motions to dismiss understandably
are ‘‘governed by a minimal legal standard’’ under the
second prong of § 52-196a (e) (3). Id., 801; see also
31
As this court has observed, ‘‘[t]he legislative history . . . indicates that,
in enacting [§ 52-196a], our General Assembly sought to balance a defendant’s first amendment rights with a plaintiff’s right to pursue a claim in
our courts, a right guaranteed by our state constitution.’’ Pryor v. Brignole,
supra, 231 Conn. App. 677. ‘‘Representative Tong . . . recognized that a
plaintiff who files suit ‘has generally a right to have his or her claims heard
. . . .’ ’’ Id., 678; accord Palazzo v. Alves, 944 A.2d 144, 150 n.11 (R.I. 2008)
(anti-SLAPP statutes ‘‘ ‘pit two sets of fundamental constitutional rights
against each other: (1) defendants’ rights of free speech and petition and
(2) plaintiffs’ rights of access to the judicial system and rights to non-falsely
maligned reputations’ ’’).
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Elder v. Kauffman, supra,204 Conn. App. 825 (‘‘[p]roof
of probable cause is not as demanding as proof by a
preponderance of the evidence’’); People’s United Bank
v. Kudej, 134 Conn. App. 432, 442,
39 A.3d 1139 (2012)
(noting ‘‘the very low burden of proof required in a
probable cause hearing’’); cf. Mindys Cosmetics, Inc.
v. Dakar, 611 F.3d 590, 598 (9th Cir. 2010) (‘‘the second
step of the anti-SLAPP inquiry is often called the ‘minimal merit’ prong’’); Priore v. Haig, supra,344 Conn.
670 (D’Auria, J., concurring) (‘‘the special motion to
dismiss permitted under § 52-196a is easily defeated
under a probable cause standard’’). To meet that minimal standard, parties may submit affidavits and documentary support appended to their pleadings.
For all of the foregoing reasons, we conclude that
the legislature did not intend to permit the trial court
to conduct evidentiary hearings on special motions to
dismiss. Our construction of § 52-196a is consistent with
the plain language of the statute, its legislative history,
the policy it was designed to implement, and persuasive
authority from other states. The court’s decision to hold
an evidentiary hearing on the defendant’s special
motion to dismiss and to predicate its ruling on testimony from that hearing, therefore, constitutes reversible error.
II
Appellate review of a court’s decision on a special
motion to dismiss is identical to that of the trial court,
as it entails consideration of the pleadings and affidavits
submitted by the parties; see General Statutes § 52-196a
(e) (2); and involves no factual findings or credibility
determinations. Accordingly, our review is de novo.32
See, e.g., Mulvihill v. Spinnato, supra,228 Conn. App.
32
There exists no ‘‘meaningful distinction between plenary and de novo
review,’’ as those terms are used interchangeably. Ammirata v. Zoning
Board of Appeals, 264 Conn. 737, 746 n.13,
826 A.2d 170 (2003).
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790 (whether plaintiff established probable cause under
second prong of § 52-196a (e) (3) involves question of
law subject to plenary review); Chapnick v. DiLauro,
supra,212 Conn. App. 269 (whether conduct falls within
ambit of first prong of § 52-196a (e) (3) presents question of law subject to plenary review); Marijanovic v.
Gray, York & Duffy, 137 Cal. App. 4th 1262, 1270,
40
Cal. Rptr. 3d 867 (2006) (‘‘[o]n appeal, we review the
trial court’s decision de novo, engaging in the same
two-step process to determine, as a matter of law,
whether the defendant made its threshold showing the
action was a SLAPP suit and whether the plaintiff established a probability of prevailing’’); Bristol Asphalt, Co.
v. Rochester Bituminous Products, Inc., 493 Mass. 539,
560, 227 N.E.3d 1019 (2024) (‘‘de novo review is required
for both stages of our inquiry’’ under anti-SLAPP statute
‘‘because both stages of our framework require resolution of legal questions based entirely on a documentary
record, for which ‘no special deference’ is owed to [the
trial] judge’’); USA Lending Group, Inc. v. Winstead
PC, 669 S.W.3d 195, 200 (Tex. 2023) (appellate review
of both prongs of anti-SLAPP statute is de novo).
In light of the particular circumstances of the present
case, we nonetheless conclude that a remand to the
trial court for further proceedings is necessary. Having
concluded that the court improperly held an evidentiary
hearing on the defendant’s special motion to dismiss,
fairness dictates that we remand the matter to the trial
court to permit the parties an opportunity to file any
supplemental pleadings or affidavits in accordance with
this opinion. See, e.g., Kaufman v. Synnott, Docket No.
CV-XX-XXXXXXX-S, 2021 WL 4295356, *3 (Conn. Super.
August 27, 2021) (court exercised its discretion under
§ 52-196a (d) to permit limited discovery and allowed
parties to file affidavits referencing that discovery);
VOA Sunset Housing LP v. D’Angelo, 555 P.3d 635,
643 (Colo. App. 2024) (remanding with direction ‘‘to
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reconsider the [anti-SLAPP] motion after allowing the
parties an opportunity to present supporting and opposing affidavits, as contemplated by [Colo. Rev. Stat. §]
13-20-1101 (3) (b)’’); Talandar v. Manchester-Murphy,
supra,331 A.3d 1099 (court ‘‘afforded [the plaintiff] an
opportunity to submit his proffered testimony in the
form of an affidavit’’). The parties also must be provided
an opportunity to present argument at a hearing held
pursuant to § 52-196a (e) (1) based on ‘‘the pleadings
and supporting and opposing affidavits’’ that have been
submitted for the court’s consideration pursuant to
§ 52-196a (e) (2).
III
Because a remand is necessary, we briefly address
the plaintiff’s contention that the doctrine of collateral
estoppel precludes the defendant from claiming, in an
effort to meet her burden under the first prong of § 52-
196a (e) (3), that her report of abuse ‘‘was truthful and
made in good faith.’’ Ordinarily, we would not address
this claim, as the plaintiff first raised it in his appellate
reply brief. See State v. Myers, 178 Conn. App. 102, 106,
174 A.3d 197 (2017) (noting well established principle
that arguments cannot be raised for first time in reply
brief); see also Driscoll v. General Nutrition Corp., 252
Conn. 215, 226–27,
752 A.2d 1069 (2000) (‘‘it is improper
to raise a new argument in a reply brief, because doing
so deprives the opposing party of the opportunity to
respond in writing’’). Despite that shortcoming, we nevertheless consider the plaintiff’s claim in the interest
of judicial economy, as it is likely to arise on remand.
See, e.g., State v. Manuel T., 337 Conn. 429, 437 n.7,
254 A.3d 278 (2020) (addressing claim that was likely
to arise on remand despite fact that it may be unpreserved); Ghio v. Liberty Ins. Underwriters, Inc., 212
Conn. App. 754, 780–81 n.8,
276 A.3d 984 (same), cert.
denied, 345 Conn. 909,
283 A.3d 506 (2022).
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The applicability of the doctrine of collateral estoppel
presents a question of law over which our review is
plenary. See Testa v. Geressy, 286 Conn. 291, 306,
943
A.2d 1075 (2008). That doctrine ‘‘expresses the fundamental principle that once a matter has been fully and
fairly litigated, and finally decided, it comes to rest.’’
(Internal quotation marks omitted.) Megin v. New Milford, 125 Conn. App. 35, 38,
6 A.3d 1176 (2010). ‘‘[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. . . . 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.) Rocco v. Garrison,
268 Conn. 541, 555,
848 A.2d 352 (2004).
Those requirements are not met in the present case.
Although the plaintiff claims that the administrative
decision should have preclusive effect in this civil action,
that administrative proceeding concerned whetherthe
allegations of abuse were substantiated by evidence in
the administrative record. The issue of whether the
defendant made her report of abuse truthfully and in
good faith was neither fully litigated nor definitively
determined in that proceeding. Moreover, privity
between the defendant and the department is lacking.
See Girolametti v. Michael Horton Associates, Inc.,
332 Conn. 67, 76,
208 A.3d 1223 (2019) (preclusion
‘‘should be applied only when there exists such an identification in interest of one person with another as to
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represent the same legal rights so as to justify preclusion’’ (internal quotation marks omitted)). The department’s interest in protecting minor children from abuse
is altogether distinct from the interest of persons who
report such abuse and subsequently are the subject of
civil actions for defamation, fraud, vexatious litigation,
or intentional infliction of emotional distress. Accordingly, the doctrine of collateral estoppel has no application in this case.
The judgment is reversed and the case is remanded
for further proceedings in accordance with this opinion.
In this opinion the other judges concurred.
