Chapnick v. DiLauro ( 2022 )

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RANDALL CHAPNICK ET AL. v.
BRIDGET DILAURO ET AL.
(AC 43128)
Bright, C. J., and Alvord and Lavine, Js.
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 defen-
dants 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 (§ 52-196a), to dismiss the counts of the complaint
asserted against them. On appeal, the plaintiffs claimed that the court
erred in dismissing the counts of the complaint against F and P alleging
nuisance. Held that, as F and P failed to satisfy their initial burden under
§ 52-196a as to the claims alleging nuisance, the trial court incorrectly
granted the special motions to dismiss as to those claims: the alleged
conduct of F and P, including walking a dog and allowing it to urinate
and defecate in a certain location and encouraging such behavior with
the dog, did not fit within the ambit of protected constitutional conduct
as defined by § 52-196a, which concerns the exercise of free speech,
the right to petition and the right of association; moreover, the alleged
conduct relating to the nuisance claims was not done in connection
with a matter of public concern, as the dispute did not relate to the
government, zoning, regulatory matters, a public official or figure, or
an audiovisual work, the location of the conduct did not relate to health
or safety, and the well-being of the community was not affected by
the conduct.
Argued January 20—officially released May 3, 2022
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the action was withdrawn as against the named defen-
dant 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, individ-
ually 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, General Statutes § 52-196a, the
counts of the complaint against the defendants Cynthia
Flaherty and John Popolizio, Jr.,3 alleging nuisance and
seeking injunctive relief. We reverse in part the judg-
ment of the trial court.
The following facts and procedural history are rele-
vant to our analysis. In November, 2018, Dominica
Chapnick and Randall Chapnick (Chapnicks) com-
menced the present action against the defendants and
several other neighbors. In the complaint, the Chap-
nicks 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 defen-
dants claims of intentional infliction of emotional dis-
tress, as to which they sought compensatory and puni-
tive damages. In addition, Randall Chapnick alleged
against both defendants claims of malicious prosecu-
tion, 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 Chap-
nicks’ three condominium units, despite having been
asked by Randall Chapnick numerous times to stop
permitting this. Popolizio, also a neighbor of the Chap-
nicks, allegedly encouraged one or more residents of
the condominium complex to bring their dogs to urinate
and defecate on the lawn near the windows of the
Chapnicks’ units. The remaining counts of the com-
plaint were based on the following additional allega-
tions. Because Flaherty wanted to continue to bring
her dog to urinate and defecate on the lawn near the
Chapnicks’ condominium units and because Popolizio
wanted to support such behavior and because they both
wanted to stop Randall Chapnick from complaining
about their conduct, the defendants intentionally made
false and/or exaggerated statements to the police in
order to have Randall Chapnick arrested. New Haven
police officers arrested Randall Chapnick for stalking
in the second degree in violation of General Statutes
§ 53a-181d and breach of the peace in the second degree
in violation of General Statutes § 53a-181, which
charges ultimately were dismissed.
In November, 2018, the defendants separately filed,
pursuant to § 52-196a (b),5 special motions to dismiss
the counts of the complaint asserted against them. The
defendants argued that the counts of the complaint
against them should be dismissed because the action
was a SLAPP suit seeking to punish them for having
made statements to the police in connection with a
criminal investigation, which statements were pro-
tected communications made in connection with a mat-
ter of public concern. In support of their respective
special motions to dismiss, both defendants attached a
police report regarding a breach of the peace complaint
made by another resident of the condominium complex,
Bridget DiLauro, against Randall Chapnick for having
approached her on more than one occasion in a ‘‘very
aggressive manner’’ in response to her having walked
her dog near the windows of his condominium units
on what DiLauro described as a ‘‘dog run.’’ According to
the police report, Popolizio informed the investigating
officer that, in March, 2016, he told Randall Chapnick
to ‘‘back off’’ from a verbal confrontation with DiLauro
concerning the location in which she walked her dog.
Popolizio stated that Randall Chapnick then ‘‘got in his
face’’ momentarily and walked away while continuing
to ‘‘yell about dog urine and feces.’’
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 Chap-
nick 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 defen-
dants ‘‘made an initial showing that, after the court’s
examination of the complaint, supporting and opposing
affidavits, they were exercising their rights, by a prepon-
derance of the evidence, of free speech, the right to
petition the government, and/or the right of association
under the constitution of the United States or the consti-
tution of the state of Connecticut with a matter of public
concern during a police investigation relating to the
plaintiff Randall Chapnick . . . .’’ The court granted
the motions and dismissed all the counts of the com-
plaint against the defendants. This appeal followed.
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 anal-
ysis. Connecticut’s anti-SLAPP statute provides a mech-
anism for early dismissal of SLAPP suits by way of a
special motion to dismiss. See General Statutes § 52-
196a (b). Section 52-196a (e) (3) provides in relevant
part: ‘‘The court shall grant a special motion to dismiss
if the moving party makes an initial showing, by a pre-
ponderance 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 govern-
ment, 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 . . . sets forth with
particularity the circumstances giving rise to the com-
plaint . . . 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
. . . .’’ According to § 52-196a (e) (2): ‘‘When ruling on
a special motion to dismiss [filed pursuant to the anti-
SLAPP statute], the court shall consider pleadings and
supporting and opposing affidavits of the parties
attesting to the facts upon which liability . . . is
based.’’ ‘‘A special motion to dismiss filed pursuant to
§ 52-196a . . . is not a traditional motion to dismiss
based on a jurisdictional ground. It is, instead, a trun-
cated evidentiary procedure enacted by our legislature
in order to achieve a legitimate policy objective, namely,
to provide for a prompt remedy.’’ Elder v. Kauffman,
204 Conn. App. 818, 824, 254 A.3d 1001 (2021).
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).
The nuisance claims are based on allegations that
Flaherty brought her dog to urinate and defecate near
the windows of the Chapnicks’ condominium units, a
behavior that Popolizio allegedly encouraged one or
more residents to engage in, resulting in an interference
with the Chapnicks’ use and enjoyment of their property
and with the quality of their lives. As to the nuisance
claims against Flaherty, the Chapnicks further alleged
that they ‘‘do not want to have feces residue and soaked
in urine on the lawn beneath the windows’’ of their
condominium units.
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 pri-
vate nuisance is an interference with the use and enjoy-
ment of land.’’8 (Citations omitted; internal quotation
marks omitted.) Pestey v. Cushman, 259 Conn. 345,
352, 788 A.2d 496 (2002).
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 con-
cerns the exercise of the right of free speech, the right
to petition, and the right of association. See General
Statutes § 52-196a. According to the definitions pro-
vided in § 52-196a (a), ‘‘(2) ‘Right of free speech’ means
communicating, or conduct furthering communication,
in a public forum on a matter of public concern; (3)
‘Right to petition the government’ means (A) communi-
cation in connection with an issue under consideration
or review by a legislative, executive, administrative,
judicial or other governmental body, (B) communica-
tion that is reasonably likely to encourage consideration
or review of a matter of public concern by a legislative,
executive, administrative, judicial or other governmen-
tal body, or (C) communication that is reasonably likely
to enlist public participation in an effort to effect consid-
eration of an issue by a legislative, executive, adminis-
trative, judicial or other governmental body; (4) ‘Right
of association’ means communication among individu-
als who join together to collectively express, promote,
pursue or defend common interests . . . .’’ General
Statutes § 52-196a (a). Specifically, the conduct on
which the nuisance claims in the present case is based
does not involve: a communication in a public forum;
any communication that is in connection with, reason-
ably likely to encourage, or reasonably likely to enlist
public participation to effect an issue under consider-
ation or review by a government body; or communica-
tion among individuals who join together to collectively
express, promote, pursue or defend common interests.
Although the United States Supreme Court in Dallas v.
Stanglin, 490 U.S. 19, 25, 109 S. Ct. 1591, 104 L. Ed. 2d
18 (1989), stated that ‘‘[i]t is possible to find some kernel
of expression in almost every activity a person under-
takes—for example, walking down the street or meeting
one’s friends at a shopping mall—but such a kernel is
not sufficient to bring the activity within the protection
of the [f]irst [a]mendment,’’ it is difficult to discern in
the present case even such a kernel of expression in
the dispute between neighbors regarding the location
at which a dog relieves itself.
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) environ-
mental, 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 Chap-
nicks’ 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 qual-
ity of their lives, any well-being is personal to the Chap-
nicks and does not involve the well-being of the commu-
nity.
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 crimi-
nal investigation and because Randall Chapnick threat-
ened them with litigation after they gave statements to
the investigating officer. We are not persuaded.
According to the statutory language of § 52-196a (e)
(3), the initial showing is satisfied when the moving
party shows, by a preponderance of the evidence, that
the complaint is based on the moving parties’ exercise
of certain constitutional conduct in connection with a
matter of public concern. The alleged act of threatening
litigation prior to filing a complaint does not mean that
the nuisance counts were based on such threats, and
that the complaint arguably was filed in retaliation for
the defendants having assisted in a criminal investiga-
tion does not mean that the nuisance claims were based
on the conduct that arguably spurred such retaliatory
motives.10 Not every matter with secondary legal
aspects involves a matter of public concern. The first
prong of the anti-SLAPP statute is not satisfied in the
present case where the nuisance claims were based on
the unprotected conduct of walking a dog in a location
that is disagreeable to another neighbor, and the
encouragement of such behavior, which unprotected
conduct was not done in connection with a matter of
public concern. Accordingly, because the defendants
have not satisfied their initial burden under the anti-
SLAPP statute as to the nuisance claims, we conclude
that the court incorrectly granted the special motions
to dismiss as to those claims.
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.
1
Pursuant to General Statutes § 52-599, Dominica Chapnick filed a sugges-
tion of death in October, 2021, regarding Randall Chapnick, and in November,
2021, filed a motion to substitute in place of the deceased, Dominica Chap-
nick as the administratrix of his estate. The trial court granted the motion.
2
‘‘SLAPP is an acronym for strategic lawsuit against public participation,
the distinctive elements of [which] are (1) a civil complaint (2) filed against
a nongovernment individual (3) because of their communications to govern-
ment bodies (4) that involves a substantive issue of some public concern.
. . . The purpose of a SLAPP suit is to punish and intimidate citizens who
petition state agencies and have the ultimate effect of chilling any such
action.’’ (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).
3
The complaint also listed as defendants Christopher Elgee, Sandra Elgee,
Hannah Bosworth, Melody Hawkins, and Mary Ellen DiLauro, individually
and as the executrix of the estate of Vincent DiLauro, and the action was
later withdrawn as to each of them. Flaherty and Popolizio will be referred to
collectively as the defendants and individually by name, where appropriate.
4
Although the Chapnicks assert separate counts of their complaint against
each defendant ‘‘for injunctive relief,’’ injunctive relief is a remedy and not
a cause of action. Furthermore, the counts seeking injunctive relief allege
that the defendants’ ‘‘acts are a nuisance.’’ We thus treat the Chapnicks’
counts for injunctive relief as merely restatements of their nuisance claims.
5
General Statutes § 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, counterclaim or cross claim.’’
6
The plaintiff does not challenge on appeal the court’s granting of the
special motions to dismiss as to the remaining counts of the complaint
against the defendants. See footnote 4 of this opinion.
7
The plaintiff also argues, in the alternative, that the court failed to con-
sider whether the second prong of the anti-SLAPP statute, concerning the
existence of probable cause to prevail on the merits of the complaint, was
satisfied. Because we agree with the plaintiff that the defendants have not
satisfied their initial showing with respect to the nuisance claims; see foot-
note 4 of this opinion; we do not address this issue.
8
‘‘To establish a nuisance four elements must be proven: (1) the condition
complained of had a natural tendency to create danger and inflict injury
upon person or property; (2) the danger created was a continuing one; (3)
the use of the land was unreasonable or unlawful; (4) the existence of the
nuisance was the proximate cause of the plaintiffs’ injuries and damages.’’
(Internal quotation marks omitted.) Dingwell v. Litchfield, 4 Conn. App.
621, 624, 496 A.2d 213 (1985).
9
See Gould v. Freedom of Information Commission, 314 Conn. 802,
810, 104 A.3d 727 (2014) (‘‘[w]hen construing a statute, [o]ur fundamental
objective is to ascertain and give effect to the apparent intent of the legisla-
ture’’ (internal quotation marks omitted)); see also General Statutes § 1-2z.
10
In the present case, the complaint involves a mix of allegations, wherein
some causes of action, such as the nuisance claims, are based on unprotected
conduct, while other causes of action, such as those stemming from the
allegations in the malicious prosecution counts, are based on the defendants’
communications with the police involving a criminal investigation, which
conduct the trial court determined to be protected, a conclusion that the
plaintiff does not challenge on appeal. The defendants’ counsel, however,
agreed at oral argument before this court that we must engage in a count
by count analysis of the complaint when analyzing the plaintiff’s claim on
appeal, and we agree.