Birch Hill Recovery Center, LLC v. High Watch Recovery Center, Inc.

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Birch Hill Recovery Center, LLC v. High Watch Recovery Center, Inc.

BIRCH HILL RECOVERY CENTER, LLC v. HIGH
WATCH RECOVERY CENTER, INC.
(AC 47452)
Alvord, Clark and Seeley, Js.

Syllabus

The plaintiff appealed from the trial court’s judgment dismissing its action
sounding in, inter alia, tortious interference with prospective business rela-
tions, following the court’s grant of the defendant’s special motion to dismiss
filed pursuant to the anti-SLAPP statute (§ 52-196a). The plaintiff, which
was seeking to open a substance abuse treatment facility in Kent, where the
defendant operated its own such facility, claimed that the court erroneously
dismissed the action because it had established that there was probable
cause that it would prevail on its claims against the defendant for the
defendant’s conduct in opposing the plaintiff’s opening of the facility. Held:

The trial court did not err in granting the defendant’s special motion to
dismiss, as the court properly concluded that the plaintiff failed to establish
probable cause that it would prevail on its claims in light of the defendant’s
first amendment defense and, accordingly, the plaintiff’s claims were barred
by the first amendment to the United States constitution.

This court concluded that the plaintiff’s claim that the trial court applied
the wrong legal standard and should have analyzed the issue of whether
the defendant’s conduct was protected activity under the sham litigation
exception, established by California Motor Transport Co. v. Trucking
Unlimited (404 U.S. 508), to the doctrine of immunity for petitioning activity
pursuant to Eastern Railroad Presidents Conference v. Noerr Motor Freight,
Inc. (365 U.S. 127) and United Mine Workers of America v. Pennington
(381 U.S. 657), was unavailing, as the record showed that the defendant
had an objectively reasonable basis for challenging the plaintiff’s application
seeking to open a substance abuse treatment facility.
Argued March 11—officially released June 10, 2025

Procedural History

Action to recover damages for, inter alia, tortious
interference with prospective business relations, and
for other relief, brought to the Superior Court in the
judicial district of Litchfield at Torrington, where the
court, Lynch, J., granted the defendant’s special motion
to dismiss and rendered judgment thereon, from which
the plaintiff appealed to this court. Affirmed.
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Birch Hill Recovery Center, LLC v. High Watch Recovery Center, Inc.

Christopher A. Klimmek, with whom was Jeffrey P.
Mueller, for the appellant (plaintiff).
Peter J. Zarella, with whom was Snigdha Mamilla-
palli, for the appellee (defendant).
Opinion

CLARK, J. The action underlying this appeal arises
from the efforts by the plaintiff, Birch Hill Recovery
Center, LLC, to open a substance abuse treatment facil-
ity (facility) in Kent and the alleged efforts of the defen-
dant, High Watch Recovery Center, Inc., to prevent the
plaintiff from doing so. The plaintiff brought this action
sounding in tortious interference with prospective busi-
ness relations and a violation of the Connecticut Unfair
Trade Practices Act (CUTPA), General Statutes § 42-
110a et seq., alleging that the defendant engaged in
anticompetitive conduct designed to prevent the plain-
tiff from opening the facility by making false or mis-
leading statements to the public and the press, by chal-
lenging the plaintiff’s efforts to obtain necessary
approvals from the Office of Health Care Access
(OHCA) and the Kent Planning and Zoning Commission
(commission), and by litigating appeals from the deci-
sions of those administrative bodies in the Superior
Court, this court, and our Supreme Court. The defen-
dant filed a special motion to dismiss the action pursu-
ant to the anti-SLAPP statute,1 General Statutes § 52-
196a.2 The court granted that motion, concluding that
1
‘‘SLAPP is an acronym for strategic lawsuit against public participation
. . . .’’ (Internal quotation marks omitted.) Black Rock Gardens, LLC v.
Berry, 224 Conn. App. 379, 380 n.1, 312 A.3d 588 (2024).
2
General Statutes § 52-196a provides in relevant part: ‘‘(b) 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
connection with a matter of public concern, such opposing party may file
a special motion to dismiss the complaint, counterclaim or cross claim. . . .
‘‘(e) . . . (3) The court shall grant a special motion to dismiss if the
moving party makes an initial showing, by a preponderance of the evidence,
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Birch Hill Recovery Center, LLC v. High Watch Recovery Center, Inc.

the defendant met its burden under § 52-196a (e) (3)
to establish by a preponderance of the evidence that
the plaintiff’s claims were based on the defendant’s
exercise of its right to free speech, right to petition the
government, or right of association under the United
States constitution or the state constitution in connec-
tion with a matter of public concern and that the plain-
tiff failed to meet its burden to establish probable cause
that it would prevail on the merits of its claims because
(1) the plaintiff’s claims were barred in their entirety
by the first amendment to the United States constitu-
tion3 and article first, §§ 4, 5 and 14,4 of the Connecticut
constitution, (2) the plaintiff’s claims with respect to
the defendant’s litigation conduct in court and before
the OHCA were barred by the absolute litigation privi-
lege, and (3) the plaintiff failed to allege sufficient facts
to support its claim for tortious interference with busi-
ness relations.
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 connection 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 com-
plaint, 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. . . .’’
3
The first amendment to the United States constitution provides in rele-
vant part: ‘‘Congress shall make no law . . . abridging the freedom of
speech . . . or the right of the people peaceably to assemble, and to petition
the Government for a redress of grievances.’’
4
Article first, § 4, of the Connecticut constitution provides: ‘‘Every citizen
may freely speak, write and publish his sentiments on all subjects, being
responsible for the abuse of that liberty.’’
Article first, § 5, of the Connecticut constitution provides in relevant part:
‘‘No law shall ever be passed to curtail or restrain the liberty of speech
. . . .’’
Article first, § 14, of the Connecticut constitution provides: ‘‘The citizens
have a right, in a peaceable manner, to assemble for their common good,
and to apply to those invested with the powers of government, for redress of
grievances, or other proper purposes, by petition, address or remonstrance.’’
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On appeal, the plaintiff does not argue that the court
erred in its determination that the defendant met its
initial burden under the first prong of § 52-196a (e) (3).
See footnote 2 of this opinion. Instead, the plaintiff
claims that the court erred by dismissing the action
because it established that there is probable cause that
it will prevail on its claims against the defendant. Specif-
ically, the plaintiff contends that (1) the defendant’s
efforts to challenge the facility in court and administra-
tive proceedings constituted ‘‘sham’’ litigation that is
not protected by the first amendment to the federal
constitution or the state constitution, (2) the absolute
litigation privilege does not bar the plaintiff’s claims,
and (3) the complaint sufficiently alleged that the defen-
dant’s conduct amounted to tortious interference with
business relations. We disagree with the plaintiff’s claim
that it established probable cause that it will prevail on
its claim that the defendant’s challenges to the facility
constituted sham litigation. We, therefore, conclude
that the court did not err in its determination that the
defendant’s conduct was protected by the first amend-
ment. Because that conclusion is sufficient to uphold
the dismissal of the complaint, we need not address the
plaintiff’s other challenges to the judgment of dismissal.
Accordingly, we affirm the judgment of the trial court.5
5
In its principal appellate brief, the plaintiff also claims that the court
erred in denying its motion for leave to amend the complaint, which the
plaintiff filed on the morning of oral argument on the special motion to
dismiss. In response, the defendant argues that any such error was harmless
because the court considered the allegations in the proposed amended
complaint and accompanying affidavit in deciding the special motion to
dismiss. In its reply brief, the plaintiff concedes that this court need address
this claim only if we reverse the judgment of dismissal.
In addition, in its reply brief, the plaintiff challenges the court’s decision
to award attorney’s fees to the defendant pursuant to § 52-196a (f) (1) and
claims that, ‘‘[i]f this court reverses [the judgment of] dismissal . . . it
should also reverse the award of attorney’s fees.’’ Because we affirm the
judgment of dismissal, we need not address the plaintiff’s claims challenging
the court’s denial of the motion for leave to amend and the court’s award
of attorney’s fees.
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The following facts and procedural history are rele-
vant to this appeal.6 The plaintiff was formed in 2017
for the purpose of establishing the facility. The defen-
dant has operated its own substance abuse treatment
facility in Kent since the 1940s. On June 23, 2017, the
plaintiff submitted a special permit and site plan appli-
cation to the commission, seeking to convert a former
convalescent home into a substance abuse treatment
facility. On October 12, 2017, the commission voted to
approve the plaintiff’s application. On October 27, 2017,
the defendant appealed the commission’s decision to
the Superior Court. In 2018, the parties reached a settle-
ment allowing the plaintiff to retain its approvals; the
settlement did not require the defendant to refrain from
further opposing the facility.
Separately, in September, 2017, the plaintiff applied
to the OHCA for a certificate of need.7 The defendant
6
In reviewing the trial court’s decision granting a special motion to dismiss
pursuant to § 52-196a, we take the facts as they appear in the pleadings,
affidavits, and other exhibits submitted by the parties and construe them
in the light most favorable to the plaintiff. See Murphy v. Rosen, 351 Conn.
120, 122, 329 A.3d 913 (2025); Mulvihill v. Spinnato, 228 Conn. App. 781,
794, 326 A.3d 251, cert. denied, 350 Conn. 926, 326 A.3d 248 (2024).
7
Pursuant to General Statutes § 19a-638 (a) (1), any person or entity
seeking to establish a new health care facility is required to obtain a certifi-
cate of need.
‘‘Pursuant to General Statutes (Rev. to 2017) § 19a-612d, the deputy com-
missioner of public health was responsible for directing and overseeing
the OHCA at the time that [the plaintiff] submitted its certificate of need
application. Pursuant to No. 18-91, § 1, of the 2018 Public Acts, which became
effective May 14, 2018, the [relevant] statutes . . . were amended to create
a Health Systems Planning Unit [within the Office of Health Strategy and
overseen by the Commissioner of Health Strategy], in lieu of the OHCA.’’
High Watch Recovery Center, Inc. v. Dept. of Public Health, 207 Conn. App.
397, 400 n.3, 263 A.3d 935 (2021), rev’d on other grounds, 347 Conn. 317,
297 A.3d 531 (2023).
Pursuant to General Statutes § 19a-612d (b), the deputy commissioner of
public health retained ‘‘independent decision-making authority over only
the certificate of need applications that [were] pending before the [OHCA]
and . . . deemed completed by said office on or before May 14, 2018. Fol-
lowing the issuance by the Deputy Commissioner of Public Health of a final
decision on any such certificate of need application, the Commissioner of
Health Strategy shall exercise independent authority on any further action
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requested and was granted permission to intervene in
the proceedings before the OHCA. On March 28 and
May 10, 2018, the OHCA held hearings on the plaintiff’s
application. The defendant objected to the plaintiff’s
application on various grounds, including that there
was no public need for the facility and that the facility
would have a detrimental impact on the state’s health
care system generally. On November 6, 2018, the hear-
ing officer issued a proposed final decision recommend-
ing the denial of the plaintiff’s application. The plaintiff
filed a brief and presented oral argument in opposition
to the proposed final decision. Subsequently, on March
28, 2019, the plaintiff and the Department of Public
Health (department) entered into an agreed settlement
pursuant to which the plaintiff’s application was
approved, subject to certain conditions. As part of the
agreed settlement, however, the department made find-
ings of fact and conclusions of law in which it found that
the plaintiff failed to satisfy ten of the twelve statutory
factors it was required to consider in assessing the
plaintiff’s application.8 Specifically, the department
required on such certificate of need application or the certificate of need
issued pursuant to such application.’’
In their appellate briefs, both parties refer only to the OHCA and the
Department of Public Health when discussing the certificate of need proceed-
ings. In the interest of simplicity and clarity, we likewise refer solely to the
OHCA in this opinion.
8
At the time of the plaintiff’s application, General Statutes (Rev. to 2017)
§ 19a-639 (a) required the OHCA to consider twelve ‘‘guidelines and princi-
ples’’ in assessing the application:
‘‘(1) Whether the proposed project is consistent with any applicable poli-
cies and standards adopted in regulations by the Department of Public
Health;
‘‘(2) The relationship of the proposed project to the state-wide health
care facilities and services plan;
‘‘(3) Whether there is a clear public need for the health care facility or
services proposed by the applicant;
‘‘(4) Whether the applicant has satisfactorily demonstrated how the pro-
posal will impact the financial strength of the health care system in the
state or that the proposal is financially feasible for the applicant;
‘‘(5) Whether the applicant has satisfactorily demonstrated how the pro-
posal will improve quality, accessibility and cost effectiveness of health care
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Birch Hill Recovery Center, LLC v. High Watch Recovery Center, Inc.

found that: the ‘‘application is not consistent with the
Statewide Health Care Facilities and Services Plan’’; the
plaintiff ‘‘has not sufficiently demonstrated that there
is a clear public need for the proposal’’; the plaintiff
‘‘has not satisfactorily demonstrated that the proposal
will improve the accessibility, quality and cost effective-
ness of health care delivery in the region’’; the plaintiff
‘‘has not sufficiently demonstrated that there would
be no adverse change to the provision of health care
services to the relevant populations and payer mix,
including access to services by Medicaid recipients and
indigent persons’’; the plaintiff ‘‘failed to submit evi-
dence that there are persons that have sought [the type
of treatment to be provided at the facility] but were
unable to find it in Connecticut’’; the plaintiff ‘‘has not
provided any historical utilization of behavioral health
treatment services in the service area that would sup-
port [the] proposal’’; the plaintiff ‘‘has not satisfactorily
delivery in the region, including, but not limited to, provision of or any
change in the access to services for Medicaid recipients and indigent persons;
‘‘(6) The applicant’s past and proposed provision of health care services
to relevant patient populations and payer mix, including, but not limited to,
access to services by Medicaid recipients and indigent persons;
‘‘(7) Whether the applicant has satisfactorily identified the population to
be served by the proposed project and satisfactorily demonstrated that the
identified population has a need for the proposed services;
‘‘(8) The utilization of existing health care facilities and health care ser-
vices in the service area of the applicant;
‘‘(9) Whether the applicant has satisfactorily demonstrated that the pro-
posed project shall not result in an unnecessary duplication of existing or
approved health care services or facilities;
‘‘(10) Whether an applicant, who has failed to provide or reduced access
to services by Medicaid recipients or indigent persons, has demonstrated
good cause for doing so, which shall not be demonstrated solely on the
basis of differences in reimbursement rates between Medicaid and other
health care payers;
‘‘(11) Whether the applicant has satisfactorily demonstrated that the pro-
posal will not negatively impact the diversity of health care providers and
patient choice in the geographic region; and
‘‘(12) Whether the applicant has satisfactorily demonstrated that any con-
solidation resulting from the proposal will not adversely affect health care
costs or accessibility to care.’’
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demonstrated that [the] proposal would not result in
an unnecessary duplication of existing services in the
area’’; the plaintiff ‘‘has not satisfactorily demonstrated
that there will be no reduction in access to services by
Medicaid recipients or indigent persons’’; the plaintiff
‘‘has not satisfactorily demonstrated that the proposal
will not negatively impact the diversity of health care
providers and client choice in the region’’; and the plain-
tiff ‘‘failed to satisfactorily demonstrate that the pro-
posal will not result in any consolidation that would
affect health care costs or accessibility to care.’’9
On May 8, 2019, the defendant appealed from the
agreed settlement to the Superior Court pursuant to
the Uniform Administrative Procedure Act, General
Statutes § 4-166 et seq. The Superior Court dismissed
the defendant’s appeal on the basis that the defendant
had not appealed from a final decision. See General
Statutes § 4-183 (a).10 On September 14, 2021, this court
affirmed the judgment of dismissal, but, on July 25,
2023, our Supreme Court reversed. See High Watch
Recovery Center, Inc. v. Dept. of Public Health, 207
Conn. App. 397, 263 A.3d 935 (2021), rev’d, 347 Conn.
317, 297 A.3d 531 (2023). On remand, the Superior Court
again dismissed the defendant’s appeal, concluding that
the defendant was not aggrieved by the department’s
decision to grant the plaintiff a certificate of need. See
High Watch Recovery Center, Inc. v. Dept. of Public
Health, Superior Court, judicial district of New Britain,
Docket No. CV-XX-XXXXXXX-S (May 30, 2024). The defen-
dant appealed from the judgment of dismissal, and that
9
The department did not make a finding as to the first factor and found
that the plaintiff satisfied the fourth factor. As to the seventh factor, the
department found that the plaintiff had ‘‘satisfactorily identified the popula-
tion to be [served]’’ but that the plaintiff did not demonstrate that that
population had a need for the proposed services.
10
General Statutes § 4-183 (a) provides in relevant part: ‘‘A person who
has exhausted all administrative remedies available within the agency and
who is aggrieved by a final decision may appeal to the Superior Court as
provided in this section. . . .’’
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appeal remains pending before our Supreme Court at
the time of the release of this opinion.11
During the pendency of the defendant’s appeal from
the certificate of need proceedings before the OHCA,
the plaintiff has been unable to proceed with the con-
struction of the facility. On October 6, 2023, the plaintiff
commenced the present action, alleging that the defen-
dant pursued ‘‘a multiyear and multifaceted effort to
thwart [the plaintiff’s] ability to develop its facility at
every step of the process for fear of the perceived com-
petition it would create.’’ The plaintiff alleged that the
defendant ‘‘did not have a good faith belief to assert
that [the plaintiff] did not meet the requirements for [a
certificate of need], but instead [opposed the facility]
simply because it did not want [the plaintiff] as a puta-
tive competitor.’’ To support that claim, the plaintiff
alleged that, although the defendant objected to the
plaintiff’s proposal to include detoxification beds on
the basis that there was no public need, the defendant
later received approval to expand its own facility to add
detoxification beds and then objected to the plaintiff’s
request to extend the expiration date of the agreed
settlement, relying on its expanded capacity to serve
the needed population. The plaintiff further alleged that,
although the defendant objected to the facility in part
on the basis that it ‘‘would be a drain on the town’s
emergency services,’’ when the defendant later sought
permission from the commission to expand its own
facility, the defendant represented that its expansion
would not negatively affect the town’s emergency ser-
vices ‘‘because rehabilitation facilities do not have secu-
rity issues like a prison, and they rarely need to call
the police.’’
11
This court heard oral argument on the defendant’s appeal on March
11, 2025, and, following oral argument, recommended that the matter be
transferred to the Supreme Court. Thereafter, on April 9, 2025, the appeal
was transferred to our Supreme Court pursuant to Practice Book § 65-1.
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The plaintiff also alleged that the defendant ‘‘embarked
on a smear campaign as another attempt to thwart [the
plaintiff’s] development plans.’’ The plaintiff alleged
that Jerry Schwab, the defendant’s chief executive offi-
cer, ‘‘sent a letter to all residents of Kent . . . ostensi-
bly ‘alerting’ them to [the plaintiff’s] proposed plans in
advance of the [commission] hearing at which the pub-
lic could voice its concerns.’’ The plaintiff also alleged
that ‘‘Schwab made false and misleading statements
about [the plaintiff’s] leadership’’ to the Republican-
American (newspaper), which quoted him as saying
that ‘‘the people who are applying and shopping this
around town are investment fund people from Manhat-
tan. They don’t have one tiny speck of experience with
a facility like this. These are venture capitalists that are
looking at this. We need to make sure there are proper
safety nets.’’ The plaintiff alleged that the defendant’s
actions ‘‘deprived [the plaintiff] of the substantial
income and profits that the facility would have gener-
ated’’ and sought damages based on claims of tortious
interference with prospective business relations and a
violation of CUTPA.
On November 22, 2023, the defendant filed a special
motion to dismiss pursuant to § 52-196a, an accompa-
nying memorandum of law, and several exhibits.12 The
defendant claimed that the complaint was based on the
defendant’s exercise of its rights under the state and
federal constitutions to free speech, to petition the gov-
ernment, and to associate in connection with a matter
12
The exhibits attached to the defendant’s memorandum of law consisted
of the newspaper article; the defendant’s petition to intervene in the certifi-
cate of need proceedings; the OHCA ruling granting the petition to intervene;
letters and emails submitted by members of the community in opposition
to the plaintiff’s application for a certificate of need; the agreed settlement
granting the plaintiff’s application for a certificate of need; the defendant’s
request for reconsideration of the agreed settlement; the order denying the
defendant’s request for reconsideration; and the order granting the plaintiff’s
request for an extension of the expiration date of the certificate of need.
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Birch Hill Recovery Center, LLC v. High Watch Recovery Center, Inc.

of public concern within the meaning of § 52-196a (e)
(3). The defendant further claimed that the plaintiff
could not meet its burden under § 52-196a (e) (3) to
establish probable cause that it would prevail on the
merits of its complaint because, inter alia, the complaint
was barred by the litigation privilege, the conduct at
issue was protected by the first amendment to the
United States constitution and article first, §§ 4, 5 and
14, of the Connecticut constitution, and the complaint
failed to allege the existence of a business relationship
that was harmed by the defendant’s allegedly tortious
conduct, as required to prevail on a claim of tortious
interference with prospective business relations.
In support of its first amendment claim, the defendant
argued that ‘‘speech that is objectively on a matter of
public concern in light of its substance, form, and con-
text is entitled to protection under the first amend-
ment.’’ In support of that argument, the defendant cited
Gleason v. Smolinski, 319 Conn. 394, 125 A.3d 920
(2015), in which our Supreme Court held that the first
amendment protected the family of a missing person
from liability for intentional infliction of emotional dis-
tress for its targeted campaign hanging missing person
posters near the home and workplace of the missing
person’s former girlfriend because that conduct related
to a matter of public concern. See id., 425. The defen-
dant argued that the conduct at issue in the present
case—namely, communicating with the public and the
press and opposing the plaintiff’s facility in administra-
tive and judicial proceedings—was protected by the
first amendment because ‘‘[t]he addition of a substance
abuse facility in the middle of Kent, and the governmen-
tal approvals that would be required, is plainly a matter
of public concern’’ that is entitled to ‘‘the strongest
of first amendment protections, notwithstanding [the
plaintiff’s] bald and conclusory allegations about [the
defendant’s] motives.’’ The defendant further argued
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that the fact that this case involves a dispute between
private businesses did not undermine its first amend-
ment claim, citing the United States Supreme Court’s
decision in California Motor Transport Co. v. Trucking
Unlimited, 404 U.S. 508, 92 S. Ct. 609, 30 L. Ed. 2d 642
(1972), for the proposition that ‘‘the first amendment’s
protections apply even in the realm of commercial dis-
putes between competitors . . . .’’
The plaintiff filed an opposition to the special motion
to dismiss on December 26, 2023.13 The plaintiff first
claimed that the defendant had not met its initial burden
under § 52-196a (e) (3) to show that the complaint is
based on the defendant’s exercise of its rights to speak,
petition, or assemble with respect to a matter of public
concern. The plaintiff argued that the complaint is not
‘‘based on’’ the defendant’s exercise of its first amend-
ment rights but, rather, ‘‘is based on [the defendant’s]
multiyear campaign to take down a perceived competi-
tor and thwart its business development,’’ which, the
plaintiff argued, ‘‘is simply not the type [of case that]
the anti-SLAPP [statute] was designed to prevent
. . . .’’ The plaintiff further argued that, even if the
complaint was based on the defendant’s exercise of its
first amendment rights, the issues involved were not a
matter of public concern because the defendant was
motivated not by ‘‘a desire to protect the community
or speak up against potentially harmful development’’
but, rather, to stifle competition and protect its own
business interests.
The plaintiff then claimed that, even if the defendant
had met its initial burden under § 52-196a (e) (3), there
was probable cause that the plaintiff would prevail on
the merits of the complaint. With respect to the first
amendment defense, the plaintiff reiterated its argu-
ment that the alleged conduct was not protected by
13
The plaintiff did not include any exhibits with its opposition.
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Birch Hill Recovery Center, LLC v. High Watch Recovery Center, Inc.

the first amendment because that conduct related to a
private business dispute and was aimed at thwarting
competition. The plaintiff argued that ‘‘where speech,
petition, or assembly is intended to harm another busi-
ness, it is no longer protected under the first amend-
ment,’’ and that ‘‘[t]his is simply not the type of case
involving an exercise of constitutional rights on an issue
of public concern for which the first amendment can
serve as a defense.’’ The plaintiff further noted that the
court in Gleason had distinguished between ‘‘matters
of purely private significance’’ and ‘‘matters of public
interest.’’ (Internal quotation marks omitted.) Gleason
v. Smolinski, supra, 319 Conn. 411. Finally, the plaintiff
disputed the defendant’s reliance on California Motor
Transport Co. v. Trucking Unlimited, supra, 404 U.S.
508, and cited that case for the proposition that the
first amendment did not protect ‘‘[the defendant’s]
attempts to squash a potential competitor by using
improper means.’’
On January 8, 2024, the court, Lynch, J., held a hear-
ing on the special motion to dismiss. On the morning
of the hearing, the plaintiff filed a motion for continu-
ance and a motion for leave to amend the complaint
to add new factual allegations based on information it
claimed to have received the day before. The court
denied the motion for continuance on the record and
indicated it would defer ruling on the motion for leave
to amend until after it ruled on the special motion to
dismiss. Prior to hearing oral argument, the court
inquired whether either party had evidence to present
in connection with the special motion to dismiss. The
defendant noted that it intended to rely on the exhibits
it had attached to its memorandum in support of the
special motion to dismiss; see footnote 12 of this opin-
ion; but neither party presented evidence during the
hearing.14
14
The defendant also indicated that, on the morning of the hearing, it had
filed as an additional exhibit a copy of the release that was executed in
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On February 23, 2024, the court issued a memoran-
dum of decision granting the special motion to dismiss.
In its analysis, the court identified the following conduct
and communications that formed the basis of the plain-
tiff’s claims as alleged in the complaint: the defendant’s
statements to the newspaper and letter to the commu-
nity about the facility; the defendant’s written and oral
statements to the commission; the defendant’s state-
ments in opposing the plaintiff’s certificate of need
application before the OHCA; and the defendant’s state-
ments in appealing the decisions of the commission
and the department. Addressing the first prong of § 52-
196a (e) (3), the court determined that all of the chal-
lenged conduct constituted an exercise of the defen-
dant’s right to free speech and to petition the govern-
ment, that the defendant’s statements to the public and
to the newspaper were an exercise of the defendant’s
right of association, and that the plaintiff’s development
of the facility is a matter of public concern. The court
therefore concluded that the defendant met its initial
burden under § 52-196a (e) (3) to establish that the
complaint was based on the defendant’s rights to free
speech, to petition the government, and to associate
with respect to a matter of public concern.
The court then addressed whether the plaintiff estab-
lished probable cause that it would prevail on the merits
of its complaint. In assessing the defendant’s first
amendment defense, because the parties’ briefs and
arguments focused almost exclusively on whether the
defendant’s alleged speech and conduct related to a
matter of public concern, the court began its analysis
connection with the settlement of the defendant’s appeal from the decision
of the commission. In its memorandum of decision, the court indicated that
it did not consider that exhibit in its decision because the defendant had
not explained how that exhibit was relevant to the special motion to dismiss.
Because neither party argues that the release is relevant to the plaintiff’s
claims on appeal, we do not consider that exhibit in our disposition of
this appeal.
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with a discussion of the United States Supreme Court’s
opinion in Snyder v. Phelps, 562 U.S. 443, 131 S. Ct.
1207, 179 L. Ed. 2d 172 (2011). It noted that, in Snyder,
the court held that the first amendment shielded from
tort liability church members who picketed near a sol-
dier’s funeral with ‘‘signs reflect[ing] the church’s view
that the United States is overly tolerant of sin and that
God kills American soldiers as punishment’’; id., 447;
because that speech related to a matter of public con-
cern. The court quoted from Snyder, which explained
that ‘‘[s]peech deals with matters of public concern
when it can be fairly considered as relating to any matter
of political, social, or other concern to the community
. . . or when it is a subject of legitimate news interest;
that is, a subject of general interest and of value and
concern to the public . . . . Deciding whether speech
is of public or private concern requires [the court] to
examine the content, form, and context of that speech,
as revealed by the whole record.’’ (Citations omitted;
internal quotation marks omitted.) Id., 453.
Applying that standard, the court determined that
‘‘[t]he development of a new substance abuse treatment
facility relates to the broad societal concerns of the
community in which the facility plans to operate, and,
thus, just as in Snyder, the defendant’s alleged conduct
relates to a matter of public concern.’’ The court also
rejected the plaintiff’s contention that the defendant’s
alleged anticompetitive purpose precluded a determina-
tion that its speech and petitioning activity related to
a matter of public concern. As the court explained, ‘‘the
allegations that the defendant in the present case is
motivated by a personal desire to harm its competitor
does not transform its speech regarding the substance
abuse treatment facility into a purely private matter.
. . . Even if the defendant acted solely with a business
motivation, it could still have intended to persuade oth-
ers regarding the development of the substance abuse
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treatment facility, just as the speech in Gleason could
have also been intended [not merely to] harass the
plaintiff but persuade her regarding a matter of public
concern.’’ (Citation omitted.) The court concluded that,
because the defendant’s conduct was protected by the
first amendment, the plaintiff failed to meet its burden
to establish probable cause that it would prevail on the
merits of its complaint.15 The court thereafter rendered
judgment dismissing the plaintiff’s complaint.16
On appeal, the plaintiff does not argue that the court
erred in concluding that the defendant met its initial
burden under the first prong of § 52-196a (e) (3). Rather,
the plaintiff focuses its challenge on the court’s conclu-
sion that the plaintiff failed to establish probable cause
that it would prevail on the merits of the complaint.
The plaintiff claims that the court erred in concluding
that the first amendment to the federal constitution,
the state constitution, and the litigation privilege pro-
tected the defendant’s conduct in opposing the pro-
posed substance abuse treatment facility and in con-
cluding that the plaintiff did not establish probable
cause that it would prevail on its tortious interference
claim because it failed to allege the existence of a busi-
ness relationship.
With respect to the first amendment defense, the
plaintiff claims that the court applied the wrong legal
15
As stated previously in this opinion, the court also concluded that all
of the plaintiff’s claims were barred by article first, §§ 4, 5 and 14, of the
state constitution, that some, but not all, of the plaintiff’s claims were barred
by the litigation privilege, and that the plaintiff had not alleged sufficient
facts to demonstrate probable cause that it would prevail on its tortious
interference claim. Because our conclusion that the plaintiff cannot prevail
on its sham litigation claim is sufficient to dispose of this appeal, we need
not address whether the court properly concluded that the defendant’s
alleged conduct is protected by the Connecticut constitution.
16
On the same day, the court entered an order denying the motion for
leave to amend. In addition, on September 30, 2024, the court entered an
order awarding the defendant attorney’s fees in the amount of $26,880.
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standard in analyzing whether the defendant’s conduct
was protected activity. Specifically, the plaintiff con-
tends that the court should have analyzed the first
amendment defense under the Noerr-Pennington doc-
trine; see United Mine Workers of America v. Pen-
nington, 381 U.S. 657, 85 S. Ct. 1585, 14 L. Ed. 2d 626
(1965); Eastern Railroad Presidents Conference v.
Noerr Motor Freight, Inc., 365 U.S. 127, 81 S. Ct. 523,
5 L. Ed. 2d 464 (1961) (Noerr); and the ‘‘sham litigation’’
exception thereto, established by the United States
Supreme Court in California Motor Transport Co. v.
Trucking Unlimited, supra, 404 U.S. 508. The plaintiff
claims that, analyzed under that standard, there was
probable cause that the defendant’s conduct falls within
the sham litigation exception and, therefore, that the
plaintiff’s complaint was not barred by the first amend-
ment. The defendant contends that the plaintiff cannot
prevail on its sham litigation claim because the record
does not support a finding of probable cause that the
defendant’s challenges to the facility were objectively
baseless, as required to establish that the sham excep-
tion applies. We agree with the defendant.17
17
The defendant also contends that the plaintiff’s claim is not reviewable
because the plaintiff ‘‘never once mentioned the Noerr-Pennington doctrine,
the sham exception to it, any of the cases . . . setting forth the current
test for the sham exception . . . or even that there was some established
exception to first amendment protections for ‘abuse of judicial and adminis-
trative proceedings for anticompetitive purposes’ . . . .’’ Although the plain-
tiff did not expressly raise either the Noerr-Pennington doctrine or the
sham exception, and we question whether the plaintiff’s mere reference to
California Motor Transport Co. was adequate to put the trial court on
notice of its claim, we exercise our discretion to review the plaintiff’s claim
‘‘because ‘the minimal requirements for review [have been] met and . . .
the party who raised the unpreserved claim cannot prevail.’ ’’ Forgione v.
Forgione, 186 Conn. App. 525, 533, 200 A.3d 190 (2018), quoting Blumberg
Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., 311
Conn. 123, 157–58, 84 A.3d 840 (2014). Moreover, because the question of
whether the plaintiff met its burden to establish probable cause that it would
prevail, as required to defeat the defendant’s anti-SLAPP motion, is a question
of law subject to plenary review, we can address the plaintiff’s claim even
though the trial court did not expressly address it. See Robinson v. V. D.,
229 Conn. App. 316, 342, 328 A.3d 198 (2024) (in appeal from denial of anti-
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The following legal principles and standard of review
govern our review of the plaintiff’s claim. Under § 52-
196a, ‘‘a party may file a special motion to dismiss when
the opposing party’s complaint is based on the moving
party’s exercise of, among other things, the right of
free speech or the right to petition the government in
connection with a matter of public concern.’’ Priore v.
Haig, 344 Conn. 636, 659, 280 A.3d 402 (2022). Pursuant
to § 52-196a (e) (3), the moving party bears the initial
burden to show by a preponderance of the evidence
that the complaint ‘‘is based on the moving party’s exer-
cise of its right of free speech, right to petition the
government, or right of association under the Constitu-
tion of the United States or the Constitution of the state
in connection with a matter of public concern . . . .’’
If the moving party satisfies that burden, the burden
shifts to the nonmoving party to establish ‘‘that there
is probable cause, considering all valid defenses, that
the [nonmoving] party will prevail on the merits of the
complaint . . . .’’ General Statutes § 52-196a (e) (3).
In the present case, the plaintiff challenges only the
court’s conclusion that it failed to establish probable
cause that it would prevail under the second prong of
§ 52-196a (e) (3). ‘‘The legal idea of probable cause is
a bona fide belief in the existence of the facts essential
under the law for the action and such as would warrant
a man of ordinary caution, prudence and judgment,
under the circumstances, in entertaining it.’’ (Internal
quotation marks omitted.) Elder v. Kauffman, 204
Conn. App. 818, 825, 254 A.3d 1001 (2021). ‘‘Proof of
probable cause is not as demanding as proof by prepon-
derance of the evidence . . . and is substantially less
SLAPP special motion to dismiss, this court addressed question of whether
plaintiffs established probable cause that they would prevail on their com-
plaint without remanding to trial court because ‘‘determination of whether
allegations of a complaint, assuming they are true, demonstrate the existence
of probable cause raises a question of law’’).
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than that required for conviction under the reasonable
doubt standard.’’ (Citation omitted; internal quotation
marks omitted.) Mulvihill v. Spinnato, 228 Conn. App.
781, 790, 326 A.3d 251, cert. denied, 350 Conn. 926, 326
A.3d 248 (2024). ‘‘Probable cause is a flexible common
sense standard . . . [that] does not demand that a
belief be correct or more likely true than false.’’ (Inter-
nal quotation marks omitted.) 36 DeForest Avenue, LLC
v. Creadore, 99 Conn. App. 690, 695, 915 A.2d 916, cert.
denied, 282 Conn. 905, 920 A.2d 311 (2007).
In assessing whether the plaintiff established proba-
ble cause that it would prevail under the second prong
of § 52-196a (e) (3), the court must ‘‘construe the plead-
ings, affidavits, and other proof submitted in the light
most favorable to the [plaintiff]’’; Mulvihill v. Spinnato,
supra, 228 Conn. App. 794; and determine ‘‘whether the
plaintiff has stated a legally sufficient claim and made
a prima facie factual showing sufficient to sustain a
favorable judgment.’’ Id., 795. Whether the plaintiff
established probable cause that it would prevail is a
question of law subject to plenary review. Id., 790.
The plaintiff argues that the court erred in concluding
that the first amendment barred its claims because the
court should have analyzed the first amendment
defense under the Noerr-Pennington doctrine and
determined that there was probable cause that the sham
litigation exception to that doctrine applies. As this
court previously has explained, the Noerr-Pennington
doctrine stems from a trio of federal antitrust cases:
California Motor Transport Co. v. Trucking Unlimited,
supra, 404 U.S. 508, United Mine Workers of America v.
Pennington, supra, 381 U.S. 657, and Eastern Railroad
Presidents Conference v. Noerr Motor Freight, Inc.,
supra, 365 U.S. 127; see Zeller v. Consolini, 59 Conn.
App. 545, 550, 758 A.2d 376 (2000); in which the United
States Supreme Court held that the first amendment
‘‘shields from the Sherman [Antitrust] Act [15 U.S.C § 1
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et seq.] a concerted effort to influence public officials
regardless of intent or purpose.’’ (Internal quotation
marks omitted.) Id. In those cases, the Supreme Court
‘‘reasoned that ‘it would be destructive of rights of asso-
ciation and of petition to hold that groups with common
interests may not, without violating the antitrust laws,
use the channels and procedures of state and federal
agencies and courts to advocate their causes and points
of view respecting resolution of their business and eco-
nomic interests vis-à-vis their competitors. California
Motor Transport Co. v. Trucking Unlimited, supra,
510–11.’ ’’ Zeller v. Consolini, supra, 550. The doctrine
has since ‘‘evolved from its antitrust origins to apply
to . . . myriad . . . situations in which it shields indi-
viduals from liability for petitioning a governmental
entity for redress.’’ Id., 551. In Zeller v. Consolini, supra,
545, this court ‘‘adopt[ed] the Noerr-Pennington doc-
trine and its accompanying sham [litigation] exception
as the applicable analysis’’ for CUTPA and tortious
interference with business relations claims premised
on a defendant’s use of agency and court proceedings
for an anticompetitive purpose. Id., 554; see also Pro-
curement, LLC v. Ahuja, 197 Conn. App. 696, 707, 234
A.3d 135 (2020).
The protection afforded by the Noerr-Pennington
doctrine, however, ‘‘is not limitless,’’ as it does not apply
to ‘‘petitioning activity . . . [that] is a mere sham or
pretense to interfere with no reasonable expectation
of obtaining a favorable ruling.’’ Zeller v. Consolini,
supra, 59 Conn. App. 551–52. ‘‘In Professional Real
Estate Investors, Inc. v. Columbia Pictures Industries,
Inc., 508 U.S. 49, 60–62, 113 S. Ct. 1920, 123 L. Ed. 2d
611 (1993), the court outlined a two part test to define
sham litigation. First, the lawsuit must be objectively
baseless in the sense that no reasonable litigant could
realistically expect success on the merits. Id., 60. Sec-
ond, the court should focus on whether the baseless
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lawsuit conceals an attempt to interfere directly with
the business relationships of a competitor . . .
through the use [of] the governmental process—as
opposed to the outcome of that process—as an anticom-
petitive weapon . . . . Id., 60–61.’’ (Internal quotation
marks omitted.) Zeller v. Consolini, supra, 552. ‘‘This
two-tiered process requires the plaintiff to disprove the
challenged lawsuit’s legal viability before the court will
entertain evidence of the suit’s economic viability.’’
(Emphasis in original.) Professional Real Estate Invest-
ors, Inc. v. Columbia Pictures Industries, Inc., supra,
61. ‘‘Only if challenged litigation is objectively meritless
may a court examine the litigant’s subjective motiva-
tion.’’ Id., 60.
The objective prong of the sham litigation exception
is a high bar. As the court explained in Professional
Real Estate Investors, Inc., a plaintiff invoking the sham
exception must show that the challenged litigation was
‘‘so baseless that no reasonable litigant could realisti-
cally expect to secure favorable relief’’; id., 62; and
‘‘[t]he existence of probable cause to institute legal
proceedings precludes a finding that [a] . . . defen-
dant has engaged in sham litigation.’’ Id. In other words,
a plaintiff ‘‘[cannot] pierce [a defendant’s] [Noerr-Pen-
nington] immunity without proof that [the challenged]
action was . . . frivolous.’’ Id., 65. Moreover, because
‘‘a party’s action cannot be objectively baseless when
at least one claim in the action has merit’’; Procurement,
LLC v. Ahuja, supra, 197 Conn. App. 720; the plaintiff
must show that all claims in the challenged litigation
were frivolous. Thus, under the objectively baseless
standard, ‘‘[a] defendant will be entitled to Noerr-Pen-
nington immunity if it enjoyed virtually any success in
the underlying litigation, unless [that success is] tainted
by fraud.’’18 (Emphasis added.) 8 P. Halle & J. Everett,
18
Some federal courts have held that the sham exception may be satisfied
if the plaintiff shows that the defendant made fraudulent misrepresentations
in the challenged proceeding that affected the outcome of that proceeding.
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Business & Commercial Litigation in Federal Courts (R.
Haig ed., 5th Ed. 2024) § 87:68. This demanding standard
is warranted because ‘‘even unsuccessful but reason-
ably based suits . . . allow the public airing of dis-
puted facts . . . and raise matters of public concern.’’
(Citation omitted; internal quotation marks omitted.)
BE&K Construction Co. v. National Labor Relations
Board, 536 U.S. 516, 532, 122 S. Ct. 2390, 153 L. Ed. 2d
499 (2002); see also Zeller v. Consolini, supra, 59 Conn.
App. 553–54 (‘‘[t]he Noerr-Pennington doctrine subor-
dinates . . . commercial expediency to the constitu-
tional rights of individuals and groups to petition their
government . . . [and] failure to apply [it] aggressively
may create a chilling effect on the first amendment
right to petition in zoning and other matters’’ (internal
quotation marks omitted)).
In the present case, the complaint alleged that the
defendant participated in the following proceedings for
the purpose of preventing the construction of the facil-
ity: the plaintiff’s application for a special permit and
See, e.g., Mercatus Group, LLC v. Lake Forest Hospital, 641 F.3d 834, 843
(7th Cir. 2011) (‘‘a misrepresentation renders an adjudicative proceeding a
sham only if the misrepresentation (1) was intentionally made, with knowl-
edge of its falsity; and (2) was material, in the sense that it actually altered
the outcome of the proceeding’’); Baltimore Scrap Corp. v. David J. Joseph
Co., 237 F.3d 394, 401–402 (4th Cir. 2001) (‘‘If a fraud exception to Noerr
Pennington does exist, it extends only to the type of fraud that deprives
litigation of its legitimacy. . . . If a judgment is not procured by fraud or
deceit, it cannot fall within any fraud exception to Noerr-Pennington.’’
(Citations omitted.)), cert. denied, 533 U.S. 916, 121 S. Ct. 2521, 150 L. Ed.
2d 693 (2001); but see Armstrong Surgical Center, Inc. v. Armstrong County
Memorial Hospital, 185 F.3d 154, 162 (3rd Cir. 1999) (plaintiff’s claim that
defendant committed antitrust violation by inducing state regulators to deny
certificate of need application on basis of allegedly false and misleading
statements did not satisfy sham exception because ‘‘[l]iability for injuries
caused by such state action is precluded even where it is alleged that a
private party urging the action did so by bribery, deceit or other wrongful
conduct that may have affected the decision making process’’), cert. denied,
530 U.S. 1261, 120 S. Ct. 2716, 147 L. Ed. 2d 982 (2000). Connecticut courts
have yet to address this issue and we need not address it here because the
plaintiff has not raised it in the present appeal.
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site plan application before the commission; the defen-
dant’s subsequent appeal from the commission’s deci-
sion to the Superior Court; the plaintiff’s application
for a certificate of need before the OHCA; and the defen-
dant’s subsequent appeals from the OHCA proceedings
to the Superior Court, this court, and our Supreme
Court.19 Because § 52-196a (e) (3) provides that the
plaintiff was required to establish probable cause that
it would prevail on its claims, in assessing the plaintiff’s
claim that the sham exception applies to the defendant’s
conduct in these proceedings, we review the record
to determine whether the plaintiff met its burden to
establish probable cause that the defendant’s challenge
in each proceeding was objectively baseless. See Rob-
inson v. V. D., 229 Conn. App. 316, 342, 328 A.3d 198
(2024) (reviewing trial court record to determine
whether plaintiffs established probable cause that they
would prevail on claim).

As an initial matter, we note that, in arguing on appeal
that the sham litigation exception applies, the plaintiff
primarily directs its arguments toward the defendant’s
intervention in the proceedings before the OHCA.
Although the plaintiff makes one passing reference to
19
As noted previously in this opinion, the complaint also alleged that the
defendant made statements to the public and to the press intended to drum
up opposition to the facility. On appeal, neither party addresses whether
these statements—which were made outside of the proceedings at issue—
are protected by the Noerr-Pennington doctrine and, if so, whether they
are subject to the sham exception. In addition, the plaintiff does not claim
that the court erred in concluding that these statements were a matter of
public concern. In fact, in the section of the plaintiff’s brief addressing
the court’s first amendment analysis, the plaintiff does not mention the
defendant’s statements to the public and to the press at all. Accordingly,
we decline to address whether the court erred in concluding that the first
amendment barred the plaintiff’s claims with respect to these statements.
See, e.g., Procurement, LLC v. Ahuja, supra, 197 Conn. App. 703 n.3 (declin-
ing to address application of Noerr-Pennington doctrine and sham exception
to alleged nonpetitioning activity where plaintiff failed adequately to brief
that issue).
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the proceedings before the commission in connection
with its argument regarding the subjective prong of the
sham exception, the plaintiff otherwise focuses exclu-
sively on the proceedings before the OHCA. Similarly,
before the trial court, the plaintiff did not make any
allegations or present any evidence concerning the fac-
tual or legal bases of the defendant’s claims before the
commission or in its ensuing administrative appeal from
the commission’s decision.20 Nor did the plaintiff pres-
ent any information about the legal basis for the defen-
dant’s claims in its administrative appeal from the
OHCA proceedings, or any argument to support a claim
that the defendant’s subsequent appeals to this court
and our Supreme Court were objectively without merit.
The plaintiff, which bore the burden of establishing
probable cause that it would prevail on these claims,
is unable to satisfy its burden without providing a suffi-
cient record to establish that the defendant’s claims
were objectively baseless. Accordingly, we conclude
that the plaintiff failed to establish probable cause that
the sham litigation exception applies to the defendant’s
challenge before the commission, its appeal from the
decisions of the commission, and its appeals from the
OHCA proceedings.
20
The only information in the record that even arguably relates to the
defendant’s claims before the commission and the ensuing administrative
appeal appears in two paragraphs in the complaint, in which the plaintiff
alleged that the defendant made ‘‘false and damaging statements about [the
plaintiff] and its leadership before the [commission] and the OHCA, falsely
characterizing them as nothing more than money-grabbing investors with
no legitimate interest in serving the addiction treatment population in Con-
necticut,’’ and that, during the appeal from the commission’s decision,
Schwab stated that the plaintiff would ‘‘ ‘skim the cream off the top’ . . .
in terms of attracting patients with ‘good insurance policies.’ ’’ There is no
information in the record, however, that provides any context to explain
whether these statements were relevant to the merits of the defendant’s
legal claims, and the plaintiff does not argue on appeal that these statements
show that the defendant’s legal claims in the relevant proceedings were
objectively baseless. Accordingly, these allegations do not support the con-
clusion that the defendant’s claims before the commission and in its subse-
quent administrative appeal were objectively baseless.
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With respect to the OHCA proceedings themselves,
although the record does include information about at
least some of the arguments that the defendant pre-
sented to the OCHA, it does not support the plaintiff’s
claim that the defendant’s challenge was objectively
baseless. To the contrary, the information that was pre-
sented to the court about the OHCA proceedings sup-
ports the conclusion that the defendant had an objec-
tively reasonable basis for challenging the plaintiff’s
application for a certificate of need.21
In its request to intervene in the certificate of need
proceeding, the defendant stated that it intended to
present evidence that ‘‘(1) the [plaintiff] has failed to
establish a clear public need for the facility; (2) the
proposed facility will have a significant and detrimental
impact on existing residential substance use disorder
treatment facilities located in Connecticut, including
the [defendant’s] facility; and (3) the proposed applica-
tion will not be in the best interests of the statewide
health care delivery system.’’ As the plaintiff acknowl-
edges, the hearing officer agreed with the defendant
and issued a proposed final decision recommending
that the department deny the plaintiff’s application.
Although the department did not adopt the proposed
final decision and instead granted the plaintiff’s applica-
tion by way of the agreed settlement, the department’s
findings that accompanied the agreed settlement were
consistent with many of the arguments the defendant
made in its motion to intervene. Specifically, the depart-
ment found that ‘‘[t]he [plaintiff] has not sufficiently
demonstrated that there is a clear public need for the
21
As mentioned previously; see footnote 13 of this opinion; the plaintiff
did not present any evidence in support of its opposition to the special
motion to dismiss. Thus, aside from the allegations in the complaint, all of
the information in the record about the defendant’s challenge to the plaintiff’s
certificate of need application is from the exhibits submitted by the defen-
dant in support of its special motion to dismiss.
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[facility]’’; that ‘‘[t]he [plaintiff] did not provide any evi-
dence that its proposal would not have a negative eco-
nomic impact on facilities like [the defendant’s] or the
behavioral health care system in Connecticut’’; that
‘‘[t]he [plaintiff’s] proposal . . . will have a negative
impact on the financial strength of the behavioral health
care system in the state’’; and that the plaintiff ‘‘failed
to provide credible evidence that its program would be
a high quality, cost-effective model that would avoid
negatively impacting the financial well-being of non-
profit substance abuse treatment facilities in Connecti-
cut.’’ Moreover, as discussed previously; see footnotes
8 and 9 of this opinion and accompanying text; the
department found against the plaintiff on ten of the
twelve statutory factors that it was required to consider
in assessing the plaintiff’s application. Even though the
defendant ultimately was not successful in convincing
the department to deny the plaintiff’s application, the
defendant’s initial success before the hearing officer,
together with the department’s favorable findings,
weigh heavily against the plaintiff’s claim that the defen-
dant lacked an objectively reasonable basis for its
claims in that proceeding. The plaintiff’s failure to pro-
vide evidence or argument to the contrary is fatal to its
claim that the defendant’s challenge before the OHCA
constituted sham litigation.
The plaintiff nevertheless points to two arguments
that the defendant made in the OHCA proceedings that,
the plaintiff contends, show that the defendant’s chal-
lenge to the plaintiff’s certificate of need application
was baseless. First, the plaintiff notes that the defendant
‘‘told the OHCA that there was no public need for [the
plaintiff’s] substance abuse treatment services, but then
sought to expand its own facility to provide the same
services and serve the need it claimed did not exist.’’22
22
As the defendant notes in its appellate brief, it appears from the record
that the defendant’s subsequent decision to expand its own facility to serve
the target population was not inconsistent with its claim that there was
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Birch Hill Recovery Center, LLC v. High Watch Recovery Center, Inc.

Second, the plaintiff relies on the fact that the defendant
‘‘told the OHCA that [the] facility would increase emer-
gency services costs, but then dismissed these same
concerns when raised about its proposed expansion.’’
The plaintiff argues that this ‘‘incongruity’’ between the
defendant’s arguments to the OHCA and its subsequent
conduct ‘‘at least provides good reason to believe . . .
that those objections were disingenuous and baseless.’’
We disagree.
First, the mere fact that the defendant took a position
in later proceedings that arguably was inconsistent with
certain arguments it previously had made to the OHCA
does not mean that those arguments were objectively
meritless at the time that they were made. To satisfy
the sham litigation exception, the plaintiff was required
to show that the defendant’s challenge to the plaintiff’s
application was ‘‘frivolous’’; Professional Real Estate
Investors, Inc. v. Columbia Pictures Industries, Inc.,
supra, 508 U.S. 65; in that ‘‘no reasonable litigant could
realistically [have] expect[ed]’’ to prevail. Id., 62. The
plaintiff did not present any evidence to indicate that
the defendant did not have a good faith basis for its
arguments at the time it presented them to the OHCA.
That the defendant later took a position in a different
proceeding that differed with respect to some of the
arguments it made to the OHCA does not mean that
those arguments were objectively baseless. Cf. Dia-
mond 67, LLC v. Oatis, 167 Conn. App. 659, 688–89, 144
A.3d 1055 (evidence supported claim that defendants
lacked good faith basis for claim that proposed con-
struction project would pollute groundwater, so as to
satisfy sham exception, based on emails indicating
no clear public need for the plaintiff’s facility. Specifically, in the agreed
settlement, the department found that ‘‘[t]he [plaintiff] has not sufficiently
demonstrated that there is a clear public need for the [facility]’’ and, citing
Schwab’s testimony, further found that ‘‘[e]xisting providers in the service
area can incrementally add beds to existing operations in a cost effective
manner.’’
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0 Conn. App. 1 ,0 29
Birch Hill Recovery Center, LLC v. High Watch Recovery Center, Inc.

defendants were aware their claims were false when
they made them), cert. denied, 323 Conn. 926, 150 A.3d
230 (2016), and cert. denied, 323 Conn. 927, 150 A.3d
228 (2016), and cert. denied, 323 Conn. 927, 150 A.3d
228 (2016), and cert. denied, 323 Conn. 927, 150 A.3d
229 (2016), and cert. denied, 323 Conn. 927, 150 A.3d
230 (2016).23
Second, and perhaps more importantly, even if the
alleged inconsistency in the defendant’s arguments
does establish that those specific arguments were base-
less, that still would not be sufficient to satisfy the
plaintiff’s burden. As this court previously recognized,
because ‘‘a party’s action cannot be objectively baseless
when at least one claim in the action has merit’’; Pro-
curement, LLC v. Ahuja, supra, 197 Conn. App. 720; a
party ‘‘[does] not need to show a realistic expectation
of success on all of [the] arguments in each petition
. . . .’’ (Emphasis in original; internal quotation marks
omitted.) Id. Thus, the plaintiff could not meet its bur-
den by pointing only to certain arguments made by
the defendant before the OHCA that were allegedly
23
The plaintiff incorrectly relies on Diamond 67, LLC, in arguing that
there was probable cause that the sham exception applies because the
defendant made ‘‘knowingly false’’ claims to the OHCA. First, the plaintiff
did not present evidence of any ‘‘knowingly false submissions’’ on the part
of the defendant, but merely alleged that the defendant took a different
position on certain issues in subsequent proceedings. In contrast, in Dia-
mond 67, LLC, the plaintiff submitted evidence that the defendants, who
had intervened in prior proceedings to object to a construction project on
the basis that it would pollute a reservoir they claimed was a source of
drinking water, knew that claim was false at the time they submitted their
verified petitions to intervene. See Diamond 67, LLC v. Oatis, supra, 167
Conn. App. 688–89. Second, as discussed herein, the plaintiff here did not
allege or present any evidence that all of the defendant’s claims before the
OHCA were objectively baseless, but only that some of their arguments
were inconsistent with positions they took in later proceedings. In contrast,
because the sole basis of the defendants’ opposition to the construction
project in Diamond 67, LLC, was that it would pollute the reservoir; see id.,
667–68; evidence that the defendants knew their claim was false necessarily
sufficed to establish that their entire claim was baseless.
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Birch Hill Recovery Center, LLC v. High Watch Recovery Center, Inc.

inconsistent with its later conduct. Instead, the plaintiff
was required to establish that no reasonable litigant
could have expected to prevail in challenging the plain-
tiff’s application for a certificate of need. As discussed
previously, the record before the court showed the
opposite: that the defendant had an objectively reason-
able basis for challenging the plaintiff’s application.
On the basis of the foregoing, we conclude that the
plaintiff failed to establish probable cause that it would
prevail on its claims in light of the defendant’s first
amendment defense and, accordingly, that the court
did not err in concluding that the complaint was barred
by the first amendment. Because the court’s conclusion
in that regard, standing alone, was sufficient to justify
its dismissal of the complaint, we further conclude that
the court did not err in dismissing the plaintiff’s com-
plaint.
The judgment is affirmed.
In this opinion the other judges concurred.