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BLACK ROCK GARDENS, LLC v. HENRY BERRY
(AC 46942)
Bright, C. J., and Moll and Clark, Js.
Syllabus
The plaintiff landlord sought, by way of summary process, to regain posses-
sion of certain premises leased to the defendant tenant. The defendant
filed a special motion to dismiss pursuant to the anti-SLAPP statute
(§ 52-196a), arguing that the plaintiff violated his first amendment rights,
right of association, and right to petition the government by filing a
fraudulent and frivolous summary process action to evict him. The trial
court denied the motion, and the defendant appealed to this court. The
plaintiff filed a motion to dismiss the defendant’s appeal, claiming that
the trial court’s denial of the defendant’s special motion to dismiss was
not an appealable final judgment. Held that this court lacked subject
matter jurisdiction over the defendant’s appeal, and, accordingly, the
appeal was dismissed: the defendant failed to assert a colorable claim
that would entitle him to an immediate review of the trial court’s denial
of his special motion to dismiss pursuant to § 52-196a because none of
the allegations in the plaintiff’s complaint was based on the defendant’s
exercise of his right of free speech, to petition the government, or of
association, as the complaint made clear that the summary process
action was predicated solely on the defendant’s alleged failure to pay
rent owed to the plaintiff and the fact that the written lease agreement
between the parties had lapsed and had not been renewed, and the
complaint did not contain any allegations about things the defendant
said or communicated or about other actions that would otherwise
implicate the defendant’s right of free speech, to petition the government,
or of association, as those terms were understood under § 52-196a;
moreover, the defendant’s allegation that the summary process action
was motivated by a complaint he had filed against the plaintiff with
the state’s Commission on Human Rights and Opportunities did not
transform the action into a claim that was based on the defendant’s
exercise of his right of free speech, to petition the government, or of
association, as required by § 52-196a.
Considered December 6, 2023—officially released March 26, 2024
Procedural History
Summary process action, brought to the Superior
Court in the judicial district of Bridgeport, Housing
Session, where the court, Cirello, J., denied the defen-
dant’s special motion to dismiss, and the defendant
appealed to this court; thereafter, the plaintiff filed a
motion to dismiss the appeal. Appeal dismissed.
Matthew M. Hausman, in support of the motion.
Henry Berry, self-represented, in opposition to the
motion.
Opinion
CLARK, J. The defendant, Henry Berry, appeals from
the trial court’s denial of a special motion to dismiss that
he filed pursuant to Connecticut’s anti-SLAPP statute,
General Statutes § 52-196a,1 in a summary process
action brought against him by the plaintiff, Black Rock
Gardens, LLC. Before this court is the plaintiff’s motion
to dismiss the defendant’s appeal in which the plaintiff
claims that the defendant has not appealed from a final
judgment. Specifically, the plaintiff claims that the
defendant has failed to assert a colorable claim to the
protections afforded by the anti-SLAPP statute and,
consequently, pursuant to Smith v. Supple, 346 Conn.
928, 952, 293 A.3d 851 (2023), this court lacks subject
matter jurisdiction over the appeal. For the reasons
that follow, we agree with the plaintiff and dismiss the
defendant’s appeal.
We begin with the relevant facts and procedural his-
tory of this case. On July 28, 2023, the plaintiff com-
menced the underlying summary process action against
the defendant. In its complaint, the plaintiff alleges that
it is the owner of premises located at 293 Ellsworth
Street, Apartment 8D, in Bridgeport and that the defen-
dant failed to make full rental payments beginning in
August, 2022, and thereafter. The plaintiff alleges that
the defendant no longer has the right or privilege to
occupy the premises and that the lease agreement
between the parties has lapsed by its terms and has
not been renewed. The complaint requests a judgment
for immediate possession of the premises and forfeiture
of the defendant’s possessions and personal effects
within the premises.
On August 1, 2023, the defendant filed his answer
denying the allegations against him and checked off or
wrote in a host of special defenses on Judicial Form
JD-HM-5, titled ‘‘Summary Process (Eviction) Answer
to Complaint,’’2 including, inter alia, that rent had been
paid; that no rent is due under Connecticut law because
of the plaintiff’s ‘‘failure to do whatever is necessary
to put and keep the premises in a fit and habitable
condition’’; that the eviction was being brought because
the defendant had contacted his landlord and/or public
officials to complain about his apartment; and that he
should not be evicted because ‘‘[there was a] violation
of contract and statute regarding entry into the apart-
ment and [the plaintiff] has failed to remedy multiple
violations; [there was a] violation of the covenant of
quiet enjoyment; the plaintiff and [its] employees engage
in or allow harassment and infliction of emotional dis-
tress; the plaintiff has submitted fraudulent and/or mis-
represented documents in various legal actions of the
defendant; the plaintiff’s actions are retaliation; [and]
the plaintiff has made false statements with respect to
material facts, circumstances, and incidents.’’
On August 7, 2023, the defendant filed a motion to
dismiss the summary process action for, inter alia, insuf-
ficiency of process and insufficiency of service of pro-
cess. On August 21, 2023, the court, Cirello, J., denied
the defendant’s motion on the basis that ‘‘[t]he service
of the notice to quit, the quit date, the service of the
writ [of] summons and complaint, and the return date
on file with the court were all timely made under rele-
vant law.’’
On September 1, 2023, the defendant proceeded to file
a special motion to dismiss pursuant to § 52-196a in
which he argued that the plaintiff ‘‘violated his first
amendment rights, right of association, and right to peti-
tion the government using the guise of a largely fraudu-
lent and frivolous summary process to evict the defen-
dant from his apartment rented from the plaintiff.’’ He
alleged that ‘‘[d]ocuments relating directly to the sum-
mary process contain false information; and also the
motives, purposes, and malice of the summary process
action evidence that the action was undertaken with
improper, malicious, and retaliatory purposes to inten-
tionally harass, threaten, and disturb the defendant—
e.g., [to] upset his right of quiet enjoyment, [to] coerce
him to leave the apartment, [and to] create conditions of
precarious habitability.’’ The special motion to dismiss
also appears to have claimed that the defendant had
previously filed a complaint against the plaintiff with
Connecticut’s Commission on Human Rights and Opportu-
nities (CHRO) alleging age discrimination. He claimed
that the ‘‘plaintiff’s summary process is not only retalia-
tory in violation of Connecticut statutes including land-
lord-tenant statutes, but notably with regard to this
special motion to dismiss, a retaliatory, hostile, threat-
ening action against the defendant for petitioning the
government—namely, CHRO—by a complaint of age
discrimination . . . .’’
On September 14, 2023, the plaintiff filed an opposi-
tion to the defendant’s special motion to dismiss in
which it argued that ‘‘[t]his was the third motion to
dismiss filed by the defendant (who has since filed
several more), and is filed under a statute that does not
apply to summary process actions alleging nonpayment
of rent or lapse of time.’’ The plaintiff argued, inter alia,
that the present action has nothing to do with what the
defendant said or may have said in public or private and
nothing to do with public participation.
On September 20, 2023, a hearing on the special motion
to dismiss was held in conjunction with numerous other
motions to dismiss that the defendant had filed.3 The
court denied the defendant’s motion at the conclusion
of arguments. On September 25, 2023, the defendant
appealed from the court’s denial of that motion.
The question before us is whether the trial court’s
denial of the defendant’s special motion to dismiss
under the anti-SLAPP statute is an appealable final judg-
ment. To answer that question, we begin with the rele-
vant statutory provisions. Section 52-196a (b) 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 connec-
tion with a matter of public concern, such opposing party
may file a special motion to dismiss the complaint, counter-
claim or cross claim.’’
Section 52-196a (e) (3) instructs that ‘‘[t]he court shall
grant a special motion to dismiss if the moving party makes
an initial showing, by a preponderance of the evidence,
that the opposing party’s complaint, counterclaim or
cross claim is based on the moving party’s exercise of
its right of free speech, right to petition the government,
or right of association under the Constitution of the
United States or the Constitution of the state in connec-
tion 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.’’
Our Supreme Court recently decided three compan-
ion cases addressing the issue of whether a trial court’s
denial of a special motion to dismiss under the anti-SLAPP
statute constitutes an appealable final judgment. See
Smith v. Supple, supra, 346 Conn. 929; Pryor v. Brig-
nole, 346 Conn. 534, 536–37, 292 A.3d 701 (2023); Rob-
inson v. V. D., 346 Conn. 1002, 1007, 293 A.3d 345 (2023).
In Smith, the principal case of the three companion
cases, our Supreme Court examined the relevant statu-
tory text, legislative history, and analogous laws from
other jurisdictions; see Smith v. Supple, supra, 938–60;
and concluded that our ‘‘anti-SLAPP statute affords a
defendant a substantive right to avoid litigation on the
merits . . . .’’ Id., 949. It further concluded that, in
cases in which a defendant can assert a colorable claim
that a trial court’s denial of a special motion to dismiss
under that statute has placed that particular right at
risk, an immediate appeal may be taken pursuant to
the second prong of State v. Curcio, 191 Conn. 27, 31,
463 A.2d 566 (1983).4 Smith v. Supple, supra, 960.
The issue before us, therefore, is limited to whether
the defendant in the present case has asserted a color-
able claim to the protections afforded by our state’s
anti-SLAPP statute, as required to obtain an immediate
review of the trial court’s denial of his special motion
to dismiss. See, e.g., Pryor v. Brignole, supra, 346 Conn.
545. To that end, ‘‘we must determine whether the defen-
dant has asserted a colorable claim that his actions, as
alleged in the [plaintiff’s] complaint, are based on his
right of free speech, to petition the government, or of
association.’’ Robinson v. V. D., supra, 346 Conn. 1008.
We conclude that the defendant has failed to assert
a colorable claim to the protections afforded by our
anti-SLAPP statute because none of the allegations in
the plaintiff’s complaint is based on the defendant’s
exercise of his right of free speech, to petition the gov-
ernment, or of association. In particular, a review of the
complaint makes clear that the defendant’s summary
process action was predicated solely on the defendant’s
alleged failure to pay rent owed to the plaintiff and that
the written lease agreement between the parties had
lapsed and had not been renewed. The complaint con-
tains no allegations about things the defendant said
or communicated or about other actions that would
otherwise implicate the defendant’s right of free speech,
right to petition the government, or right of association,
as those terms are understood under the statute.5 The
defendant’s allegation that the plaintiff’s summary pro-
cess action was motivated by a prior CHRO complaint
that he filed against the plaintiff does not transform the
plaintiff’s summary process action into a claim that is
‘‘based on’’ the defendant’s exercise of his right of free
speech, to petition the government, or of association, as
required by § 52-196a (b). On the contrary, in determining
whether a party has presented a colorable claim that
entitles him to the right to avoid litigation under our
anti-SLAPP statute, our Supreme Court has confined its
analysis to whether the specific allegations made in
the complaint were based on the defendant’s protected
speech or conduct. See Robinson v. V. D., supra, 346
Conn. 1008 (‘‘we must determine whether the defendant
has asserted a colorable claim that his actions, as alleged
in the plaintiffs’ complaint, are based on his right of
free speech, to petition the government, or of associa-
tion’’ (emphasis added)); Smith v. Supple, supra, 346
Conn. 962 (‘‘we conclude that the defendants have asserted
a colorable claim that the conduct alleged in the com-
plaint falls within the meaning of the phrase ‘right of
association’ ’’ (emphasis added)); Pryor v. Brignole, supra,
346 Conn. 545 (‘‘[t]he existence of the previously cited
case law affords the defendants with at least a superfi-
cially well founded claim that the conduct alleged in
the plaintiff’s complaint—namely, [the defendant’s] send-
ing letters to ‘various news outlets and persons’ con-
cerning the arrest and prosecution of an attorney—
could be considered conduct furthering communication
in a public forum on a matter of public concern’’ (emphasis
added)). Our Supreme Court has not sought to deter-
mine a plaintiff’s motivation for bringing claims that are,
on their face, not based on a defendant’s protected speech
or conduct.6
In the present case, none of the allegations in the
plaintiff’s complaint is based on the defendant’s exer-
cise of his right of free speech, to petition the govern-
ment, or of association. We therefore conclude that the
defendant has failed to assert a colorable claim that
would entitle him to an immediate review of the trial
court’s denial of his special motion to dismiss. Conse-
quently, this court lacks subject matter jurisdiction over
the defendant’s appeal.
The appeal is dismissed.
In this opinion the other judges concurred.
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).
2
See Summary Process (Eviction) Answer to Complaint, Judicial Branch
Form JD-HM-5, available at https://www.jud.ct.gov/webforms/forms/hm005.pdf
(last visited March 14, 2024).
3
The docket reveals that the defendant had filed a host of court submis-
sions by the September 20, 2023 hearing date, including at least five other
motions to dismiss.
4
It is well settled that ‘‘[t]he subject matter jurisdiction of our appellate
courts is limited by statute to appeals from final judgments . . . .’’ (Internal
quotation marks omitted.) Blakely v. Danbury Hospital, 323 Conn. 741, 745,
150 A.3d 1109 (2016). In Curcio, however, our Supreme Court held that
‘‘[a]n otherwise interlocutory order is appealable in two circumstances: (1)
[when] the order or action terminates a separate and distinct proceeding,
[and] (2) [when] the order or action so concludes the rights of the parties
that further proceedings cannot affect them.’’ State v. Curcio, supra, 191
Conn. 31.
5
‘‘ ‘Right of free speech’ means communicating, or conduct furthering
communication, in a public forum on a matter of public concern . . . .’’
General Statutes § 52-196a (a) (2).
‘‘ ‘Matter of public concern’ means 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 . . . .’’ General Statutes § 52-196a (a) (1).
‘‘ ‘Right to petition the government’ means (A) communication in connec-
tion with an issue under consideration or review by a legislative, executive,
administrative, judicial or other governmental body, (B) communication
that is reasonably likely to encourage consideration or review of a matter
of public concern by a legislative, executive, administrative, judicial or other
governmental body, or (C) communication that is reasonably likely to enlist
public participation in an effort to effect consideration of an issue by a
legislative, executive, administrative, judicial or other governmental body
. . . .’’ General Statutes § 52-196a (a) (3).
‘‘ ‘Right of association’ means communication among individuals who
join together to collectively express, promote, pursue or defend common
interests . . . .’’ General Statutes § 52-196a (a) (4).
6
We note that the law affords the defendant a direct mechanism to chal-
lenge the summary process action on the basis of retaliation by the plaintiff.
General Statutes § 47a-33 provides: ‘‘In any action for summary process
under this chapter or [General Statutes §] 21-80 it shall be an affirmative
defense that the plaintiff brought such action solely because the defendant
attempted to remedy, by lawful means, including contacting officials of the
state or of any town, city, borough or public agency or filing a complaint
with a fair rent commission, any condition constituting a violation of any
of the provisions of chapter 368o, or of chapter 412, or of any other state
statute or regulation or of the housing or health ordinances of the municipal-
ity wherein the premises which are the subject of the complaint lie. The
obligation on the part of the defendant to pay rent or the reasonable value
of the use and occupancy of the premises which are the subject of any such
action shall not be abrogated or diminished by any provision of this section.’’