(AC 43128)
Appellate Court of Connecticut
Argued January 20—officially released May 3, 2022
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Syllabus
The plaintiffs brought an action for, inter alia, nuisance, against several of their neighbors, alleging that the neighbors encouraged and allowed their dogs to urinate and defecate near the windows of the plaintiffs’ condominium properties and that several neighbors, including the defendants F and P, made false or exaggerated statements to the police in an investigation of the plaintiff R‘s interactions with some of his neighbors related to the dog issues that led to his arrest. The trial court granted the special motions filed by F and P, pursuant to Connecticut‘s anti-SLAPP statute (
Procedural History
Action to recover damages for, inter alia, nuisance, and for other relief, brought to the Superior Court in the judicial district of New Haven, where the court, S. Richards, J., granted the special motions to dismiss filed by the defendants Cynthia Flaherty and John Popolizio, Jr., and rendered judgment thereon, from which the plaintiffs appealed to this court; thereafter, the action was withdrawn as against the named defendant et al.; subsequently, this court granted the motion to substitute Dominica M. Chapnick, administratrix of the estate of Randall Chapnick, for the named plaintiff. Affirmed in part; reversed in part; judgment directed.
Robert M. Frost, Jr., with whom, on the brief, was Erica A. Barber, for the appellants (plaintiffs).
Maureen E. Burns, with whom was John E. Ranges, for the appellees (defendants Cynthia Flaherty and John Popolizio, Jr.).
Opinion
LAVINE, J. The plaintiff Dominica Chapnick, individually and as administratrix of the estate of Randall Chapnick,1 appeals from the portion of the judgment of the trial court dismissing, pursuant to Connecticut‘s anti-SLAPP2 statute,
The following facts and procedural history are relevant to our analysis. In November, 2018, Dominica Chapnick and Randall Chapnick (Chapnicks) commenced the present action against the defendants and several other neighbors. In the complaint, the Chapnicks alleged against both defendants causes of actions of nuisance, as to which they sought compensatory and punitive damages and injunctive relief.4 In particular, counts 26, 32, 71, and 77 of the complaint alleged that the defendants’ acts constituted a nuisance for which the plaintiffs were entitled to damages. Counts 31, 34, 76, and 79 alleged the same acts as were alleged in the nuisance counts and claimed entitlement to injunctive relief. The Chapnicks also alleged against the defendants claims of intentional infliction of emotional distress, as to which they sought compensatory and punitive damages. In addition, Randall Chapnick alleged against both defendants claims of malicious prosecution, false imprisonment, and civil conspiracy, as to which he sought compensatory and punitive damages. The allegations underlying the nuisance claims were as follows. The parties resided at the Harbour Landing Condominium complex in New Haven. The Chapnicks owned three condominium units, residing in one and renting the remaining two units. Flaherty, who lived in a nearby unit, allegedly allowed her dog to urinate and defecate on the lawn near the windows of the Chapnicks’ three condominium units, despite having been asked by Randall Chapnick numerous times to stop permitting this. Popolizio, also a neighbor of the Chapnicks, allegedly encouraged one or more residents of the condominium complex to bring their dogs to urinate and defecate on
In November, 2018, the defendants separately filed, pursuant to
The police report further indicated that Flaherty informed the investigating officer that, in September, 2015, Randall Chapnick started “screaming” at her for “walking her dog on the same dog run” that DiLauro had used. In affidavits attached to their respective special motions to dismiss, both defendants stated that, after they provided statements to the police, Randall Chapnick threatened them with litigation. The Chapnicks filed oppositions to the special motions to dismiss. In an affidavit attached to the opposition to Flaherty‘s motion, Randall Chapnick stated that Flaherty was in the habit of allowing her dog to urinate and defecate on the lawn near the windows of his condominium units, which was not designated as a “dog run,” and that the last time he interacted with Flaherty was in September, 2015, but that she continued to walk her dog in the same area despite his repeatedly having asked her to not to do so.
On June 17, 2019, the court, Richards, J., issued a memorandum of decision on the defendants’ special motions to dismiss. The court reasoned that the defendants “made an initial showing that, after the
The plaintiff claims that the court incorrectly granted the defendants’ special motions to dismiss as to the nuisance claims.6 The plaintiff argues that the court incorrectly concluded that the defendants satisfied the initial burden of showing that those claims were based on the defendants’ exercise of their right of free speech, right to petition the government, or right of association under the federal or state constitution in connection with a matter of public concern.7 We agree.
The following relevant legal principles guide our analysis. Connecticut‘s anti-SLAPP statute provides a mechanism for early dismissal of SLAPP suits by way of a special motion to dismiss. See
Our review of the court‘s conclusion that the initial burden was satisfied involves a question of whether certain alleged conduct falls within the ambit of the anti-SLAPP statute. In general, whether conduct falls within the province of a statute is a matter of statutory construction presenting a question of law over which our review is plenary. See, e.g., Sandella v. Dick Corp., 53 Conn. App. 213, 226, 729 A.2d 813, cert. denied, 249 Conn. 926, 733 A.2d 849 (1999).
We note that “[a] private nuisance is a nontrespassory invasion of another‘s interest in the private use and enjoyment of land. . . . The law of private nuisance springs from the general principle that [i]t is the duty of every person to make a reasonable use of his own property so as to occasion no unnecessary damage or annoyance to his neighbor. . . . The essence of a private nuisance is an interference with the use and enjoyment of land.” (Citations omitted; internal quotation marks omitted.) Pestey v. Cushman, 259 Conn. 345, 352, 788 A.2d 496 (2002).8
The alleged private nuisance of a neighbor walking a dog and permitting it to relieve itself in a location that is disagreeable to another neighbor, while a third neighbor encourages such behavior, does not fit within the ambit of protected constitutional conduct as defined by the anti-SLAPP statute. The anti-SLAPP statute concerns the exercise of the right of free speech, the right to petition, and the right of association. See
Additionally, the second requirement of the initial burden that the conduct be done in connection with a matter of public concern also is not satisfied. Section 52-196a (a) (1) defines a “‘matter of public concern‘” as “an issue related to (A) health or safety, (B) environmental, economic or community well-being, (C) the government, zoning and other regulatory matters, (D) a public official or public figure, or (E) an audiovisual work . . . .” First, it needs no further elaboration that, according to the plain and unambiguous language of the statute,9 the dispute in the present case between neighbors does not relate to the government, zoning and other regulatory matters, a public official or public figure, or an audiovisual work. Second, the location in which the dog walking and relieving occurs, namely, whether a dog is walked near the windows of the Chapnicks’ condominium units or on some other lawn, does not relate to health or safety except, perhaps, in the most attenuated way. Finally, although the location in which a dog is walked may relate to the well-being of the Chapnicks themselves, who allege an interference with their use and enjoyment of land and with the quality of their lives, any well-being is personal to the Chapnicks and does not involve the well-being of the community.
The defendants’ counsel admitted at oral argument before this court that, if the complaint sounded only in nuisance, then the anti-SLAPP statute would not apply. The defendants, however, argue that the court correctly determined that the first prong of the anti-SLAPP statute was satisfied because the complaint was brought in retaliation for the defendants having assisted in a criminal investigation and because Randall Chapnick threatened them with litigation after they gave statements to the investigating officer. We are not persuaded.
According to the statutory language of
In short, the claims for nuisance concern what is a private dispute involving private interests. For the foregoing reasons, these claims do not fall within the ambit of the anti-SLAPP statute.
The judgment is reversed only with respect to the dismissal of counts 26, 31, 32, 34, 71, 76, 77, and 79 of the complaint against Cynthia Flaherty and John Popolizio, Jr., and the case is remanded with direction to set aside the dismissal; the judgment is affirmed in all other respects.
In this opinion the other judges concurred.