MARCIO RENE AGUILAR v. JANET EICK
(AC 47474)
Appellate Court of Connecticut
Argued March 27—officially released August 12, 2025
00 Conn. App. 1
Elgo, Clark and Bishop, Js.*
* 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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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 (
This court concluded, in light of the plain mandate of
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
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 faith was neither fully litigated nor definitively determined in the administrative proceeding, and privity between the defendant
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
the court improperly concluded that he failed to satisfy his burden under
Following oral argument before this court, we ordered the parties to file supplemental briefs to address whether
At the outset, we note that
Section
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
7, 2017, the Probate Court for the District of Norwalk-Wilton 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
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
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
The plaintiff filed a memorandum in opposition to the special motion to dismiss, in which he argued that
the defendant had failed to meet her initial burden under
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
clerk due to the “privacy interest for minors in keeping documents concerning allegations and investigations of alleged abuse from the public“; see General Statutes
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
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
Pursuant to
With respect to the defendant‘s initial burden under
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
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
I
We begin with the question of whether
question presents an issue of statutory interpretation, over
“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
A
In considering the proper construction of
As this court has explained, “[
to the facts upon which liability or a defense, as the case may be, is based.” General Statutes
Section
Moreover, if the legislature intended the hearing provided for in
The expedited hearing requirement in
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
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
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 (“[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-20-5023707-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-95-0143439-S (April 28, 1998) (22 Conn. 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 “as exhibits to his special motion to dismiss“); Chapnick v. DiLauro, 212 Conn. App. 263, 267, 275 A.3d 746
(2022) (defendants ‘‘attached a police report’’ in support of special motions to dismiss); Gimpelson v. Hartford Courant Co., LLC, Docket No. CV-21-6140154-S, 2022 WL 1585356, *1 n.2 (Conn. Super. May 19, 2022) (defendant attached newspaper article as exhibit to affidavit filed in support
The submission of such evidence to the court by way of the pleadings is consistent with the overarching aim of
Furthermore, the expedited hearing requirement in
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. Spinnato, supra, 228 Conn. App. 795; see also Robinson v. V. D., 229 Conn. App. 316, 346, 328 A.3d 198 (2024) (
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., Dur-A-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
In addition, pitfalls abound in permitting evidentiary hearings on special motions to dismiss, which the legislature may have sought to avoid in enacting
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
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
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
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 nonmoving 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
does not provide for the presentation of evidence at the statutorily required hearing.
factual conflicts’’); Dillon v. Seattle Deposition Reporters, LLC, 179 Wn. App. 41, 88, 316 P.3d 1119 (2014) (‘‘[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
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
to the pediatrician and department officials were ‘‘entitled to a conditional privilege’’ pursuant to
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
and burdensome’’); Priore v. Haig, supra, 344 Conn. 659 (
In light of the plain mandate of
B
Even if we were to conclude that
be the same. The legislative history of
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
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
the pleadings and the affidavits submitted by the parties in ruling on a special motion to dismiss.
The legislative history of
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
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
consider live testimony on the merits of [an anti-SLAPP] motion to dismiss’’).28
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
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
The jurisprudence of the Supreme Judicial Court of Maine on its anti-SLAPP statute offers a cautionary tale. Like
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
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
the legislative history confirms. See, e.g., 60 S. Proc., supra, p. 2235, remarks of Senator Paul R. Doyle (
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
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
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
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
790 (whether plaintiff established probable cause under second prong of
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-18-5018366-S, 2021 WL 4295356, *3 (Conn. Super. August 27, 2021) (court exercised its discretion under
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
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
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
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 whether the 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
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.