204 Conn.App. 818
Conn. App. Ct.2021Background
- Joseph S. Elder, a Connecticut attorney, was suspended for one year after a presentment alleging he gave a false name to police; the Connecticut Supreme Court later reversed that suspension as untimely in Disciplinary Counsel v. Elder.
- The Hartford Courant and reporter Matthew Kauffman published articles in 2015 describing the suspension and using the term "impersonated." Kauffman published an additional article in 2017 reporting the Supreme Court reversal.
- Elder sued the Courant and Kauffman for defamation and false-light invasion of privacy, arguing the use of "impersonated" was defamatory and evidenced malice.
- Defendants moved to dismiss under Connecticut’s anti‑SLAPP statute, § 52‑196a, asserting the publications concerned a matter of public interest and that prior litigation had already resolved the issues.
- The trial court granted dismissal, concluding the publications were matters of public concern and that res judicata and collateral estoppel barred Elder’s claims; Elder appealed, challenging (1) use of res judicata in a § 52‑196a motion, (2) applicability of claim preclusion/collateral estoppel to the 2017 article, and (3) constitutionality of § 52‑196a as applied.
- The appellate court affirmed: res judicata/collateral estoppel may be considered on a § 52‑196a motion where they defeat probable‑cause, collateral estoppel barred the claims (including the 2017 article issue), and the as‑applied constitutional challenge failed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether res judicata may be asserted in a § 52‑196a special motion to dismiss | Res judicata is a special defense and cannot be raised via § 52‑196a motion | Res judicata (and collateral estoppel) can be raised if their establishment would meet § 52‑196a proof requirements and defeat probable cause | Court: Res judicata/collateral estoppel may be considered on § 52‑196a where they would, as a matter of law, show the plaintiff cannot demonstrate probable cause to prevail |
| Whether prior litigation bars Elder’s claims about the 2017 publication | The 2017 article is a distinct publication; prior judgments do not preclude it; alleges new malice facts | Prior federal and state decisions already decided the core issue (accuracy of "impersonated"); issues are identical and could have been raised earlier | Court: Collateral estoppel bars the claims because the same issues (use/accuracy of "impersonated" and malice) were actually and necessarily decided in prior cases |
| Whether § 52‑196a is unconstitutional as applied (right to redress / jury trial) | Application of § 52‑196a here infringes Elder’s state constitutional rights | § 52‑196a is constitutional as applied; similar challenge was rejected in recent precedent | Court: Rejects as‑applied constitutional challenge, adopting reasoning from prior appellate decision |
Key Cases Cited
- Disciplinary Counsel v. Elder, 325 Conn. 378 (Conn. 2017) (Supreme Court reversed suspension as untimely)
- Elder v. 21st Century Media Newspaper, LLC, 204 Conn. App. 414 (Conn. App. 2021) (prior appellate decision holding 2015 articles were fair and accurate and claims barred)
- Three S. Dev. Co. v. Santore, 193 Conn. 174 (Conn. 1984) (statement defining probable cause in civil context)
- TES Franchising, LLC v. Feldman, 286 Conn. 132 (Conn. 2008) (probable‑cause burden is less than preponderance)
- Larmel v. Metro North Commuter R.R. Co., 200 Conn. App. 660 (Conn. App. 2020) (res judicata normally pleaded as a special defense; discussed pleading/defense procedures)