Mulvihill v. Spinnato

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Mulvihill v. Spinnato

DANIEL MULVIHILL v. KARA SPINNATO
(AC 45829)
Elgo, Moll and Seeley, Js.

Syllabus

The defendant appealed from the trial court’s judgment denying her special
motion to dismiss the plaintiff’s defamation action pursuant to the anti-
SLAPP statute (§ 52-196a), claiming that the court improperly concluded
that the plaintiff met his burden under § 52-196a of establishing probable
cause that he would prevail on the merits of his complaint. Held:

The trial court properly denied the defendant’s motion to dismiss, this court
having concluded that, viewing the pleadings and affidavits of the parties
in the light most favorable to the plaintiff, the plaintiff satisfied the relatively
minimal burden under § 52-196a of establishing probable cause that he would
prevail on the merits of his complaint.

Argued April 16—officially released October 22, 2024

Procedural History

Action to recover damages for, inter alia, defamation,
and for other relief, brought to the Superior Court in the
judicial district of Danbury, where the court, Brazzel-
Massaro, J., rendered judgment denying the defendant’s
special motion to dismiss, from which the defendant
appealed to this court. Affirmed.

Jack G. Steigelfest, with whom, on the brief, was
Thomas P. Cella, for the appellant (defendant).

Daniel Mulvihill, self-represented, the appellee
(plaintiff).

Opinion

ELGO, J. The defendant, Kara Spinnato, known also
as Kara Callahan, appeals from the judgment of the
trial court denying her special motion to dismiss filed
pursuant to Connecticut’s anti-SLAPP statute, General
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Mulvihill v. Spinnato

Statutes § 52-196a, in this defamation action brought
1

by the self-represented plaintiff, Daniel Mulvihill. On
appeal, the defendant claims that the court improperly
concluded that the plaintiff met his burden under § 52-
196a of establishing probable cause that he will prevail
on the merits of his complaint.2 We affirm the judgment
of the trial court.

At the outset, we note that § 52-196a constitutes a
‘‘special statutory benefit’’; Lafferty v. Jones, 336 Conn.
332, 372, 246 A.3d 429 (2020), cert. denied, U.S. ,
141 S. Ct. 2467, 209 L. Ed. 2d 529 (2021); that ‘‘provides
a moving party with the opportunity to have [a] lawsuit
dismissed early in the proceeding and stays all discov-
ery, pending the trial court’s resolution of the special
motion to dismiss.’’ Priore v. Haig, 344 Conn. 636, 659,
280 A.3d 402 (2022). As this court has observed, ‘‘[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 truncated eviden-
tiary 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); see also Smith v.
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).
Our Supreme Court recently held that ‘‘the denial of a special motion to
dismiss based on a colorable claim of a right to avoid litigation under § 52-
196a is an immediately appealable final judgment . . . .’’ (Emphasis in origi-
nal.) Smith v. Supple, 346 Conn. 928, 960, 293 A.3d 851 (2023). Because the
defendant has raised a colorable claim under § 52-196a, we conclude that
she properly has appealed from the judgment denying her special motion
to dismiss.
2
The defendant also claims that the court improperly concluded that she
failed to meet her burden of establishing that the conduct in question falls
within the ambit of the anti-SLAPP statute. In light of our conclusion that
the court properly determined that the plaintiff had established probable
cause pursuant to § 52-196a, we do not consider that contention.
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Supple, 346 Conn. 928, 965, 293 A.3d 851 (2023)
(D’Auria, J., dissenting) (‘‘[o]n an expedited basis and
on a quickly assembled record, a trial judge serves as
a gatekeeper, promptly weeding out and dismissing law-
suits that plainly have been filed for [an] illegitimate
purpose’’). Section 52-196a (e) (2) instructs that,
‘‘[w]hen ruling on a special motion to dismiss, the court
shall consider pleadings and supporting and opposing
affidavits of the parties attesting to the facts upon which
liability or a defense, as the case may be, is based.’’
Our recitation of the relevant facts is gleaned from such
materials in the record before us.3
The plaintiff has been a licensed real estate broker
since 1999.4 The defendant, who was a licensed real
estate agent from 2010–2016, at all relevant times main-
tained a Realtor profile on zillow.com (Zillow).5 The
3
Prior to oral argument before this court, the defendant moved to strike
portions of the plaintiff’s appellate brief and appendix on the ground that
it purported to introduce evidence that had not been presented to the trial
court. We granted that motion and ordered stricken several paragraphs
contained therein. In our consideration of the present appeal, we have
disregarded that stricken material.
4
In his objection to the special motion to dismiss, the plaintiff stated that
he ‘‘has been a licensed real estate broker for over twenty-three years. The
plaintiff is licensed in Connecticut, New York, Florida and Rhode Island.
He holds designations/certifications in the following: GRI: Graduate of Real
Estate Institute, SRES: Senior Residential Specialist, AWHD At Home with
Diversity, ABR Accredited Buyer Representative, CIPS Certified Interna-
tional Property Specialist, and SFR Short Sale Foreclosure Specialist. He
was the president of the Northern Fairfield County Association of Realtors
in 2012, he has served on the legislative committee with the Connecticut
Realtor Association and has been a member of the board for CTR and a
board member for NFCAR. The plaintiff has been a moderator for political
forums sponsored by NFCAR. He is a certified safety instructor for the
National Association of Realtors and teaches Realtors safety measures
throughout Connecticut and New York.’’
5
‘‘Zillow is an online real estate marketplace website that offers compre-
hensive real estate market data, including estimated values of real property.’’
Wahba v. JPMorgan Chase Bank, N.A., 349 Conn. 483, 490 n.3, 316 A.3d
338 (2024); see also San Diego v. Invitation Homes, Inc., Docket No. 22-
cv-260-L (MDD), 2023 WL 35217, *1 n.2 (S.D. Cal. January 3, 2023) (Zillow
‘‘hosts a database of homes for sale, homes for rent, and homes not currently
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defendant also is a licensed notary public. At all relevant
times, the defendant was the conservator of her uncle,
who was suffering from dementia and owned real prop-
erty known as 31 Skyline Drive in Danbury (property).
In November, 2021, the defendant contacted the
plaintiff about a potential sale of the property. The
plaintiff met with the defendant and toured the property
on November 15, 2021.6 At that time, the residence on
the property ‘‘was not habitable’’ and the parties had
to enter from the rear, where a doorway ‘‘was boarded
up with a piece of ply-wood and a pad-lock.’’ The parties
met the defendant’s husband, a general contractor, in
the basement and discussed possible rehabilitation
costs.7 With respect to a potential sales price for the
on the market as well as home value and rent estimates, among other
home-related information’’). The defendant at the present time continues
to maintain a Realtor profile on Zillow. See https://www.zillow.com/profile/
Kara-Spinnato (last visited October 8, 2024).
6
In his complaint and his affidavit, the plaintiff avers that the November
15, 2021 meeting at the property lasted ten minutes. In her affidavit, the
defendant states that the meeting lasted approximately forty-five minutes.
7
The respective affidavits of the parties contain differing accounts of
what transpired once they entered the basement. In her affidavit, the defen-
dant states in relevant part that the plaintiff ‘‘met my husband in the basement
of the home and seemed to focus more on discussing his suggestions with
my husband rather than with me, even though I was the person in charge of
selling the house. His conduct gave me the feeling that he was discriminating
against me because I am a woman. He told me and my husband that it
would cost $100,000 to rehabilitate the house. He suggested that we could
list the house for sale at $150,000 and that we might get an offer of $140,000.
He commented that he was involved in the sale of another house on the
same street and said ‘we flipped it,’ giving me the impression that he was
interested in a quick turn over of the property rather than selling the property
at the best possible price. Given the market for houses at that time, I
concluded that his suggestion of a listing price of $150,000 was very low.’’
In his affidavit, the plaintiff offered a different account, stating in relevant
part: ‘‘The defendant[’s] husband and I had a brief conversation in the
basement . . . about him being a general contractor and we discussed how
much it would cost to [rehabilitate the residence]. At the time he was
throwing items off a workbench into a garbage can. He said he was in a
hurry [be]cause he had to get back to the other side of the state. He kept
telling me that I will get you the code for the pad lock on the back door.
. . . I never told the defendant that ‘I [f]lipped [a] [h]ouse [n]earby.’ I never
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property, the plaintiff alleges in his complaint and in his
sworn affidavit that he provided a comparative market
analysis to the defendant ‘‘for $210,900’’ during the
November 15, 2021 meeting. In her affidavit, the defen-
dant states that the plaintiff ‘‘never provided me with
a comparative market analysis . . . .’’
On November 18, 2021, the plaintiff sent the defen-
dant an email, in which he stated: ‘‘Hi Kara, [j]ust check-
ing in with you. I have been thinking about the property,
and would recommend a hold harmless agreement due
to [the] condition of the property. Also in the listing, I
would include that only principals and decision makers
enter the property. I wouldn’t want a family to go in
with children and get hurt. A safety precaution. I am
attaching a hold harmless that I use often. Thanks,
Daniel.’’ The defendant replied to that email, stating:
‘‘Thank you Daniel. That makes good sense. I am waiting
to hear a proposal from one more realtor and I will be
in touch later today or tomorrow. Have a great day.’’
The defendant thereafter retained the services of
another real estate agent, who listed the property for
$200,000 on November 26, 2021.8 On November 29, 2021,
had [an] ownership [interest in a nearby house], nor did I ever make that
statement. I said that my client flipped [a nearby] property. I never had a
financial interest either direct or indirect, or derived any benefit except my
commission. . . . I made the conversation [in the basement] brief since
[the defendant and her husband] were both in a hurry. The meeting did not
drag on, nor did I direct the conversation to the defendant[’s] husband. I
had more conversation about the defendant[’s] uncle than we did about the
home. Besides [the defendant’s husband] was bending down and picking
items up off a work bench and the floor. It was poor lighting and I knew
they were on a time schedule and needed to leave. The defendant told me
about her children. She was very pleasant during our brief meeting.’’
8
The parties disagree as to whether the defendant informed the plaintiff
that she would not be working with him following their November 18, 2021
email exchange. In her affidavit, the defendant avers that she subsequently
‘‘informed [the plaintiff] that [she] would not be working with him.’’ By
contrast, the plaintiff states in his affidavit that ‘‘[t]he defendant never
informed me whether or not she was listing the property with me despite
the fact that she said she did in her ‘sworn affidavit.’ ’’
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the defendant accepted an offer to purchase the prop-
erty for $252,900; the real estate closing transpired on
February 9, 2022.
On March 28, 2022, the defendant posted a review of
the plaintiff on Zillow under the name ‘‘Kara Callahan.’’9
That post was titled ‘‘Will never recommend’’ and
stated: ‘‘[The plaintiff] worked with me on an opportu-
nity to be our selling agent for my [u]ncle’s home. [The
plaintiff] could not seem to handle being professional.
Furthermore he told me he’d advise listing the home
we were selling at $100k less [than] we actually got
when it sold within 48 hours with another agent. I have
a feeling he was never going to list it rather bring in a
cash buying friend (house was a big rehab project). I
have never dealt with such a shady individual. Buyer
and Seller beware!!’’
In response, the plaintiff commenced this defamation
action on April 21, 2022. His one count complaint
alleged that the defendant’s Zillow post was defamatory
and, by way of relief, sought removal of the post, as
well as monetary and injunctive relief.
After her attorney filed an appearance on June 2,
2022, the defendant filed a special motion to dismiss
pursuant to § 52-196a, claiming that her Zillow post
‘‘was an exercise of her right to free speech in connec-
tion with matters of public concern.’’ The plaintiff filed
an objection to that motion, in which he argued that
‘‘[t]he statements made [in the Zillow post] were false
statements, designed to impugn and damage the profes-
sional reputation of the plaintiff and deter third persons
from associating or dealing with the plaintiff. [They]
were designed and calculated specifically to injure the
plaintiff in his business and profession.’’ He further
stated that the defendant ‘‘was deceptive in writing the
review using her maiden name Kara Callahan and not
9
Kara Callahan is the defendant’s maiden name.
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her legal name Kara Spinnato. . . . [T]he defendant
hid behind her maiden name in order to defame the
plaintiff after the fact.’’ The plaintiff also recited various
factual allegations to support his contention that he
had presented sufficient evidence to establish probable
cause that he will prevail on the merits of his complaint.
The court held a hearing on the defendant’s special
motion to dismiss on August 8, 2022. At that time, the
court invited the parties to submit sworn affidavits.
Both parties did so days later.10
In its September 2, 2022 memorandum of decision,
the court first determined that, although Zillow consti-
tuted a public forum for purposes of § 52-196a, the
defendant’s post did not involve a matter of public con-
cern. The court further concluded that the plaintiff had
met his statutory burden of establishing probable cause
that he will prevail on the merits of his complaint. The
court thus denied the defendant’s special motion to
dismiss, and this appeal followed.11
As a preliminary matter, we note that the inquiry
mandated by § 52-196a is twofold in nature. Pursuant
to § 52-196a (e) (3), a party that files a special motion
to dismiss bears the initial burden of demonstrating,
by a preponderance 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
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 that burden is met, the burden shifts to the party that
brought the complaint to demonstrate ‘‘that there is
10
The defendant also submitted an affidavit from her husband, Joe Spin-
nato. His affidavit contains an account of what transpired in the basement
meeting on November 15, 2021, that is largely identical to that set forth in
his wife’s affidavit.
11
There is no indication in the record before us that the plaintiff sought
an award of costs as the prevailing party pursuant to § 52-196a (f) (2).
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probable cause, considering all valid defenses, that the
party will prevail on the merits of the complaint . . . .’’
General Statutes § 52-196a (e) (3). For a special motion
to dismiss to be granted, the court must resolve both
prongs in favor of the moving party.
In the present case, the court resolved both prongs
in favor of the nonmoving party, the plaintiff.12 To suc-
ceed in this appeal, the defendant therefore must dem-
onstrate that the court committed reversible error with
respect to both prongs of the test set forth in § 52-196a
(e) (3). Accordingly, we may address either prong of
that test in resolving her appeal.13 In the present case,
12
When a court is presented with a motion to dismiss predicated on
subject matter jurisdictional grounds, ‘‘it must be immediately acted upon
by the court. . . . [A]ll other action in the case must come to a halt until
such a determination is made.’’ (Citations omitted.) Gurliacci v. Mayer, 218
Conn. 531, 545, 590 A.2d 914 (1991). If the court concludes that the action
must be dismissed for lack of subject matter jurisdiction, it ‘‘need not,
and cannot, consider’’ additional claims raised by a defendant. (Internal
quotation marks omitted.) Haydusky’s Appeal from Probate, 220 Conn. App.
267, 276, 297 A.3d 1072 (2023); see also Weiss v. Weiss, 297 Conn. 446,
451 n.5, 998 A.2d 766 (2010) (conclusion that court lacks subject matter
jurisdiction ‘‘by its very nature precludes the court from considering the
merits’’ of nonjurisdictional claims); State v. Despres, 220 Conn. App. 612,
624 n.9, 300 A.3d 637 (2023) (‘‘because the court had determined . . . that
it did not have subject matter jurisdiction, it therefore should not have
addressed the claim on the merits, and the court’s analysis and conclusion
regarding the merits of the defendant’s arguments constitute dicta’’).
Special motions to dismiss, by contrast, do not implicate the subject
matter jurisdiction of the court. See Elder v. Kauffman, supra, 204 Conn.
App. 824. For that reason, it was entirely appropriate for the trial court, for
prudential reasons, to address both prongs of § 52-196a (e) (3).
13
Our precedent recognizes, in a variety of contexts, the discretion of a
reviewing court to focus on whichever prong of a multifactor test that it
deems most relevant to resolving the appeal. See, e.g., State v. Golding, 213
Conn. 233, 240, 567 A.2d 823 (1989) (because appellant’s claim will fail if
it cannot satisfy any prong of multifactor test for unpreserved claims of
constitutional error, ‘‘[t]he appellate tribunal is free . . . to respond to the
[appellant’s] claim by focusing on whichever condition is most relevant in
the particular circumstances’’); Dills v. Enfield, 210 Conn. 705, 717, 557
A.2d 517 (1989) (explaining that impracticability doctrine is governed by
multifactor test and that reviewing court need not address all prongs of test
if court concludes that party failed to establish any prong); McDonnell v.
Roberts, 224 Conn. App. 388, 400, 312 A.3d 1103 (2024) (explaining that
motion to open default judgment is governed by two-pronged test in which
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Mulvihill v. Spinnato

we focus our attention on whether the plaintiff met
his burden of establishing probable cause that he will
prevail on the merits of his complaint. We conclude
that the plaintiff satisfied that burden.14
appellant’s ‘‘failure . . . to meet either prong is fatal’’ and concluding that
reviewing court ‘‘need not address the [appellant’s] arguments as to the first
prong’’ in light of conclusion that she had not satisfied second prong of
test); Delgado v. Commissioner of Correction, 224 Conn. App. 283, 291–92,
311 A.3d 740 (‘‘[i]t is axiomatic that courts may decide against a petitioner
on either prong [of the two-pronged test for ineffective assistance of counsel
claims], whichever is easier’’), cert. denied, 349 Conn. 902, 312 A.3d 585
(2024); State v. Chester J., 204 Conn. App. 137, 156 n.13, 253 A.3d 971
(‘‘[b]ecause the test for an equal protection violation in jury selection proce-
dures is stated in the conjunctive, we need not address either of the other
two prongs, as a failure of proof on any of the prongs defeats the claim’’),
cert. denied, 337 Conn. 910, 253 A.3d 493 (2021); Stratford v. Winterbottom,
151 Conn. App. 60, 78, 95 A.3d 538 (‘‘[b]ecause a cause of action for money
had and received requires proof of two prongs, [a reviewing court] may
affirm the judgment of the trial court’’ if plaintiff failed to satisfy either
prong and reviewing court ‘‘need not address’’ both prongs), cert. denied,
314 Conn. 911, 100 A.3d 403 (2014).
14
In light of that conclusion, we do not address the defendant’s claim
that the court improperly concluded that she failed to meet her burden of
establishing that the conduct in question falls within the ambit of the anti-
SLAPP statute. We note that the statutory scheme set forth in § 52-196a is
of recent vintage and existing appellate case law is scant on precisely what
constitutes ‘‘a matter of public concern,’’ as that term is used therein. That
term is defined in § 52-196a (a) (1) as ‘‘an issue related to (A) health or safety,
(B) environmental, economic or community well-being, (C) the government,
zoning and other regulatory matters, (D) a public official or public figure,
or (E) an audiovisual work . . . .’’ At oral argument before this court, the
defendant’s counsel clarified that the defendant’s exercise of free speech
in this case allegedly involved an issue related to ‘‘community well-being,’’
as provided for in § 52-196a (a) (1) (B).
‘‘[C]ommunity well-being’’ is not defined in our anti-SLAPP statute. It is a
nebulous, broadly worded, and potentially far-reaching term. If the defendant
here is correct that a real estate agent’s conduct is a matter of community
concern sufficient to preclude actions regarding defamatory statements, is
the same not true for the conduct of other licensed professionals in the
community, such as teachers, child care providers, or plumbers? Broadly
construed, a matter of ‘‘community well-being’’ may pertain to the conduct
of any business establishment that is open to the public. Because we con-
clude that the plaintiff in this case satisfied the probable cause prong of
§ 52-196a (e) (3), prudence dictates that we leave for another day the question
of statutory interpretation regarding matters of community well-being under
§ 52-196a (a) (1) (B).
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‘‘[T]he existence of probable cause is a question of
law to be decided by the court. . . . Accordingly, our
review of the court’s determination that probable cause
existed is plenary.’’ (Citation omitted; internal quotation
marks omitted.) Ferri v. Powell-Ferri, 213 Conn. App.
841, 846, 278 A.3d 624, cert. denied, 345 Conn. 911, 283
A.3d 506 (2022); see also State v. Jones, 320 Conn. 22,
70 n.26, 128 A.3d 431 (2015) (‘‘whether a set of facts
is sufficient to satisfy the probable cause standard is
subject to plenary review’’). In the context of special
motions to dismiss, the determination as to whether
probable cause exists entails consideration of the
‘‘pleadings and supporting and opposing affidavits of
the parties . . . .’’ General Statutes § 52-196a (e) (2).
‘‘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 circum-
stances, in entertaining it.’’ (Internal quotation marks
omitted.) Elder v. Kauffman, supra, 204 Conn. App.
825. ‘‘Proof of probable cause is not as demanding as
proof by preponderance of the evidence’’; id.; and is
‘‘ ‘substantially less than that required for conviction’ ’’
under the reasonable doubt standard. State v. Eady,
249 Conn. 431, 439–40, 733 A.2d 112, cert. denied, 528
U.S. 1030, 120 S. Ct. 551, 145 L. Ed. 2d 428 (1999).
Probable cause is a ‘‘modest’’ standard; United States
v. Sanders, 106 F.4th 455, 463 (6th Cir. 2024); that
‘‘requires a plaintiff to show more than that success is
. . . merely plausible . . . .’’ (Internal quotation
marks omitted.) Sentementes v. Lamont, Docket No.
3:21-cv-453 (MPS), 2021 WL 5447125, *2 (D. Conn.
November 22, 2021); see also People’s United Bank v.
Kudej, 134 Conn. App. 432, 442, 39 A.3d 1139 (2012)
(noting ‘‘the very low burden of proof required’’ under
probable cause standard); Malden v. State, 359 So. 3d
442, 445 (Fla. App. 2023) (‘‘[p]robable cause is not rigid
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Mulvihill v. Spinnato

nor is it a standard that is particularly difficult to meet—
probable cause is a relatively low legal burden’’).
In concluding that the plaintiff had established proba-
ble cause pursuant to § 52-196a (e) (3), the court deter-
mined that the defendant’s Zillow post contained an
objective statement of fact. On appeal, the defendant
argues that the post constituted mere opinion, which
cannot form the basis of an action for defamation. See
Daley v. Aetna Life & Casualty Co., 249 Conn. 766, 795,
734 A.2d 112 (1999) (‘‘[t]o be actionable, the statement
in question must convey an objective fact, as generally,
a defendant cannot be held liable for expressing a mere
opinion’’). We disagree.
As our Supreme Court has explained, ‘‘[a] statement
can be defined as factual if it relates to an event or
state of affairs that existed in the past or present and
is capable of being known. . . . An opinion, on the
other hand, is a personal comment about another’s con-
duct, qualifications or character that has some basis in
fact. . . . This distinction between fact and opinion
cannot be made in a vacuum, however, for although
an opinion may appear to be in the form of a factual
statement, it remains an opinion if it is clear from the
context that the maker is not intending to assert another
objective fact but only his personal comment on the
facts which he has stated. . . . [W]hile this distinction
may be somewhat nebulous . . . [t]he important point
is whether ordinary persons hearing or reading the mat-
ter complained of would be likely to understand it as
an expression of the speaker’s or writer’s opinion, or
as a statement of existing fact.’’ (Citations omitted;
emphasis in original; internal quotation marks omitted.)
Goodrich v. Waterbury Republican-American, Inc., 188
Conn. 107, 111–12, 448 A.2d 1317 (1982). ‘‘Where the
court cannot reasonably characterize the allegedly
[defamatory] words as either fact or opinion . . . this
becomes an issue of fact for the jury . . . .’’ Id., 112
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n.5; see also NetScout Systems, Inc. v. Gartner, Inc.,
334 Conn. 396, 428, 223 A.3d 37 (2020) (‘‘in defamation
cases, a jury issue can arise when an expression of
opinion contains an ambiguity that reasonably can be
understood to convey by implication an actionable fac-
tual assertion’’).
In the present case, the defendant concedes that her
Zillow post contained an objective statement of fact.
In her appellate brief and at oral argument before this
court, the defendant acknowledged that her statement
that the plaintiff ‘‘told me he’d advise listing the [prop-
erty] at $100k less [than] we actually got’’ was a ‘‘factual
statement.’’ She nonetheless contends that the plaintiff
cannot establish probable cause because he did not
‘‘rebut’’ that factual statement or offer any ‘‘proof that
it was not true.’’ The record indicates otherwise.
In his complaint and his sworn affidavit, the plaintiff
averred that he provided a comparative market analysis
to the defendant ‘‘for $210,900’’ at the November 15,
2021 meeting. A comparative market analysis is a tool
commonly used by real estate professionals to provide
sellers with a proposed sales price.15 The purpose of a
comparative market analysis ‘‘is to get an idea of what
to list a property for [in order] to put the property on
the market.’’ (Internal quotation marks omitted.) Rover
Pipeline, LLC v. Rover Tract, Docket No. 5:18-CV-68
(LEAD), 2021 WL 3424270, *6 (N.D. W. Va. August 5,
2021); see also Pellet v. Keller Williams Realty Corp.,
177 Conn. App. 42, 66, 172 A.3d 283 (2017) (real estate
expert testified ‘‘how a comparative market analysis
. . . is generated for a client’s property’’ to arrive at
‘‘a recommended list price’’); Showah v. Korogodon,
15
A comparative market analysis also is referred to as a ‘‘broker price
opinion.’’ See, e.g., Securities & Exchange Commission v. Fujinaga, Docket
No. 2:13-CV-1658 JCM (CWH), 2017 WL 4369467, *2 (D. Nev. October 2,
2017); North Carolina Dept. of Transportation v. Mission Battleground
Park, DST, 370 N.C. 477, 479, 810 S.E.2d 217 (2018).
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Docket No. FA-XX-XXXXXXX-S, 2020 WL 5984774, *2
(Conn. Super. September 3, 2020) (real estate profes-
sional performed comparative market analysis to deter-
mine ‘‘a reasonable sales price’’); Taveres-Doram v.
Doram, Docket No. FA-XX-XXXXXXX-S, 2007 WL 155155,
*4 (Conn. Super. January 2, 2007) (Realtor provided
comparative market analysis predicated on recent sales
of similar properties that was basis for recommended
sales price). Because the record indicates that the defen-
dant was a licensed real estate agent in this state for
more than one half of a decade, it is reasonable to infer
that she was familiar with comparative market analyses
and their purpose.
Furthermore, the self-represented plaintiff responded
to the defendant’s special motion to dismiss by filing a
timely objection thereto.16 In that objection, the plaintiff
reiterated that he had ‘‘presented the defendant with a
[comparative market analysis] in the amount of
$210,900.’’ He further maintained that the defendant
subsequently listed the property for ‘‘$10,900 less than
the [comparative market analysis] presented to the defen-
dant.’’ His position, in short, was that he recommended
a sales price greater than the property’s $200,000 listing
price. The plaintiff’s complaint, his affidavit, and his
objection to the special motion to dismiss all belie the
defendant’s claim that the plaintiff did nothing to rebut
the factual statement contained in her Zillow post that
the plaintiff advised her to list the property for $100,000
less than its $252,900 sales price.
16
We note that ‘‘[i]t is the established policy of the Connecticut courts to
be solicitous of [self-represented] litigants . . . .’’ (Internal quotation marks
omitted.) New Haven v. Bonner, 272 Conn. 489, 497, 863 A.2d 680 (2005);
see also State v. Mark T., 339 Conn. 225, 233, 260 A.3d 402 (2021) (‘‘[a]lthough
the right of self-representation provides no attendant license not to comply
with relevant rules of procedural and substantive law . . . we, nevertheless,
give great latitude to [self-represented] litigants in order that justice may
both be done and be seen to be done’’ (citation omitted; internal quotation
marks omitted)).
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This case thus involves an issue of material fact
regarding the statement contained in the defendant’s
Zillow post. The plaintiff steadfastly has averred that
he provided a comparative market analysis to the defen-
dant at the November 15, 2021 meeting that recom-
mended a sales price of $210,900. In her sworn affidavit,
the defendant disputes that factual assertion and avers
that the plaintiff ‘‘never provided me with a comparative
market analysis . . . .’’ Accordingly, this is not a case in
which critical facts are not in dispute, as the defendant’s
counsel suggested at oral argument before this court.
Rather, this case involves a disputed issue of material
fact regarding the Zillow post made by the defendant,
as reflected in the pleadings and the affidavits of the
parties. See General Statutes § 52-196a (e) (2).
In this regard, we note that this court previously has
observed that the procedural mechanism embodied in
§ 52-196a is ‘‘similar to a motion for summary judg-
ment.’’ Elder v. Kauffman, supra, 204 Conn. App. 824.
Under Connecticut law, courts reviewing such motions
are obligated to construe the pleadings, affidavits, and
other proof submitted in the light most favorable to the
nonmoving party. See Dubinsky v. Black, 185 Conn.
App. 53, 71, 196 A.3d 870 (2018). Other courts have
taken a similar approach in applying their anti-SLAPP
statutes. As the Supreme Court of California explained:
‘‘The anti-SLAPP statute does not insulate defendants
from any liability for claims arising from the protected
rights of petition or speech. It only provides a procedure
for weeding out, at an early stage, meritless claims
arising from protected activity. Resolution of an anti-
SLAPP motion involves two steps. First, the defendant
must establish that the challenged claim arises from
activity protected by [the anti-SLAPP statute]. . . . If
the defendant makes the required showing, the burden
shifts to the plaintiff to demonstrate the merit of the
claim by establishing a probability of success. We have
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described this second step as a summary-judgment-like
procedure. . . . The court does not weigh evidence or
resolve conflicting factual claims. Its inquiry is limited
to whether the plaintiff has stated a legally sufficient
claim and made a prima facie factual showing sufficient
to sustain a favorable judgment. It accepts the plaintiff’s
evidence as true, and evaluates the defendant’s showing
only to determine if it defeats the plaintiff’s claim as a
matter of law. . . . [C]laims with the requisite minimal
merit may proceed.’’ (Citations omitted; emphasis in
original; footnote omitted; internal quotation marks
omitted.) Baral v. Schnitt, 1 Cal. 5th 376, 384–85, 376
P.3d 604, 205 Cal. Rptr. 3d 475 (2016); see also Reeves
v. Associated Newspapers, Ltd., App. Div. 3d ,
, N.Y.S.3d (2024) (motion to dismiss filed
pursuant to New York anti-SLAPP statute ‘‘is analogous
to an accelerated summary judgment motion’’).
Moreover, as the Supreme Judicial Court of Maine
has noted: ‘‘Other states . . . use different standards
to be applied when reviewing a motion brought under
their respective anti-SLAPP statutes. . . . What [they]
all have in common is that when there are disputed
facts, the nonmoving party is given all favorable infer-
ences.’’ (Citations omitted.) Thurlow v. Nelson, 263 A.3d
494, 501 n.5 (Me. 2021). Construing the pleadings and
affidavits of the parties filed in connection with a special
motion to dismiss pursuant to § 52-196a in the light
most favorable to the nonmoving party is consistent
with the approach taken in other jurisdictions when
applying anti-SLAPP statutes.17 Such an approach also
17
See, e.g., Roche v. Hyde, 51 Cal. App. 5th 757, 787, 265 Cal. Rptr. 3d 301
(2020) (‘‘we must draw every legitimate favorable inference from the [anti-
SLAPP] plaintiff’s evidence’’ (internal quotation marks omitted)); L.S.S. v.
S.A.P., 523 P.3d 1280, 1286 (Colo. App. 2022) (special motion to dismiss
filed pursuant to Colorado anti-SLAPP statute entails summary judgment-
like procedure where court accepts plaintiff’s evidence as true), cert. denied,
Colorado Supreme Court (July 17, 2023) (No. 22SC880); American Civil
Liberties Union, Inc. v. Zeh, 312 Ga. 647, 652–53, 864 S.E.2d 422 (2021)
(motion to strike filed pursuant to Georgia anti-SLAPP statute involves
summary judgment-like procedure where court is obligated to accept as
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Mulvihill v. Spinnato

comports with ‘‘a fundamental policy consideration in
this state. Connecticut law repeatedly has expressed a
policy preference to bring about a trial on the merits
of a dispute whenever possible and to secure for the
litigant his or her day in court. . . . Our practice does
not favor the termination of proceedings without a
determination of the merits of the controversy where
that can be brought about with due regard to necessary
rules of procedure. . . . For that reason, [a] trial court
should make every effort to adjudicate the substantive
controversy before it, and, where practicable, should
decide a procedural issue so as not to preclude hearing
the merits of an appeal.’’ (Citations omitted; internal
quotation marks omitted.) Egri v. Foisie, 83 Conn. App.
243, 249–50, 848 A.2d 1266, cert. denied, 271 Conn. 931,
859 A.2d 930 (2004); accord Lafferty v. Jones, supra,
336 Conn. 380 (in § 52-196a context, noting ‘‘the policy
preference to bring about a trial on the merits of a
true evidence favorable to plaintiff); Wynn v. Associated Press, Nev.
, , 555 P.3d 272 (2024) (in ruling on motion to dismiss pursuant to
Nevada anti-SLAPP statute, ‘‘the evidence, and any reasonable inferences
drawn from it, must be viewed in [the] light most favorable to the nonmoving
party’’ (internal quotation marks omitted)); Mohabeer v. Farmers Ins.
Exchange, 318 Or. App. 313, 316–17, 508 P.3d 37 (‘‘[w]e review a trial court’s
ruling on a special motion to strike [pursuant to the Oregon anti-SLAPP
statute] for legal error, viewing the evidence and drawing all reasonable
inferences in the light most favorable to the plaintiff’’), review denied, 370
Or. 212, 519 P.3d 536 (2022); Charles v. McQueen, 693 S.W.3d 262, 281 (Tenn.
2024) (‘‘[a]s is the case when a court rules on a motion for summary judgment
or motion for directed verdict, the court [in ruling on a motion to dismiss
pursuant to Tennessee’s anti-SLAPP statute] should view the evidence in
the light most favorable to the party seeking to establish the prima facie
case and disregard countervailing evidence’’); ML Dev, LP v. Ross Dress for
Less, Inc., 649 S.W.3d 623, 627 (Tex. App. 2022) (courts ‘‘view the pleadings
and evidence in a light most favorable to the plaintiff non-movant’’ in ruling
on motion to dismiss pursuant to Texas anti-SLAPP statute); Kruger v.
Daniel, Docket No. 43155-6-II, 2013 WL 5339143, *3 n.4 (Wn. App. September
17, 2013) (unpublished opinion) (stating that process set forth in Washington
anti-SLAPP statute ‘‘is identical to that of summary judgment’’ and court
must ‘‘accept as true all evidence favorable to the plaintiff and assess the
defendant’s evidence only to determine if it defeats the plaintiff’s submission
as a matter of law’’ (internal quotation marks omitted)).
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dispute whenever possible and to secure for the litigant
his day in court’’ (internal quotation marks omitted)).
Accordingly, when disputed issues of fact arise in the
context of a special motion to dismiss, we view the
pleadings and affidavits of the parties in the light most
favorable to the nonmoving party.
Viewed in that light, we conclude that the plaintiff
in the present case has alleged sufficient facts, if cred-
ited by the trier of fact, to establish probable cause that
he will prevail on the merits of his complaint. Specifi-
cally, the plaintiff has alleged that he provided the
defendant with a comparative market analysis that rec-
ommended a sales price of $210,900 for the property—
a figure greater than the listing price ultimately agreed
to by the defendant with another real estate agent. That
allegation stands in stark contrast to the defendant’s
statement in the Zillow post that the plaintiff advised
her to list the home for $100,000 less than its sales
price. If the trier of fact were to find that the plaintiff
provided a comparative market analysis recommending
a sales price of $210,900 and did not advise the defen-
dant to list the property for ‘‘$100k less [than] we actu-
ally got’’ as the defendant stated in the Zillow post,
the plaintiff may well prevail on his complaint. See
Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 228,
837 A.2d 759 (2004) (‘‘for a claim of defamation to be
actionable, the statement must be false’’); see also 3
Restatement (Second), Torts § 566, comment (a), pp.
170–71 (1977).18
18
The Restatement (Second) of Torts offers historical context regarding
expressions of opinion in defamation actions, stating: ‘‘If the expression of
opinion was on a matter of public concern, it was a form of privileged
criticism, customarily known by the name of fair comment. The privilege
extended to an expression of opinion on a matter of public concern so long
as it was the actual opinion of the critic and was not made solely for the
purpose of causing harm to the person about whom the comment was made,
regardless of whether the opinion was reasonable or not. . . . [T]he privi-
lege of fair comment applied only to an expression of opinion and not to
a false statement of fact, whether it was expressly stated or implied from an
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In his affidavit, the plaintiff also alleges facts that
raise a question as to the defendant’s credibility with
respect to her publication of the Zillow post. In his
objection to the special motion to dismiss, the plaintiff
alleged that the defendant purposely and deceptively
published the Zillow review in her maiden name. See
footnote 9 of this opinion. In response, the defendant
in her August 5, 2022 affidavit stated in relevant part
that ‘‘[t]he post appeared under my maiden name of
Kara Callahan because the last time I posted anything
on Zillow was before I was married and my account
was still in my maiden name. I did not intend to conceal
my identity from viewers of my post.’’ In his August 12,
2022 affidavit, the plaintiff avers that those statements
are directly contradicted by the fact that the defendant’s
Zillow account at that time was under the name ‘‘Kara
Spinnato.’’ Attached as exhibit A to the plaintiff’s affida-
vit is a copy of the defendant’s Zillow profile, which
features a photograph next to the name ‘‘Kara Spin-
nato.’’ That exhibit also indicates that the defendant
had been a Zillow member since 2014 and that her
‘‘screenname’’ is ‘‘Kara Spinnato.’’ The respective affida-
vits of the parties thus raise a factual dispute regarding
the defendant’s publication of the Zillow post, which
bears on the credibility of the defendant. If the plaintiff’s
allegations are credited in this regard, it further sup-
ports the court’s conclusion that he demonstrated prob-
able cause pursuant to § 52-196a (e) (3).
The context of the defendant’s Zillow post also is
highly relevant to the present inquiry. As our Supreme
Court has observed, ‘‘the distinction between action-
able statements of fact and nonactionable statements
of opinion is not always easily articulated or discerned.
. . . Context is a vital consideration in any effort to
distinguish a nonactionable statement of opinion from
expression of opinion.’’ (Emphasis added.) 3 Restatement (Second), supra,
§ 566, comment (a), p. 171.
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an actionable statement of fact.’’ (Citations omitted.)
NetScout Systems, Inc. v. Gartner, Inc., supra, 334
Conn. 411–12. To aid in distinguishing opinion from
fact, the court has articulated ‘‘three basic, overlapping
considerations: (1) whether the circumstances in which
the statement is made should cause the audience to
expect an evaluative or objective meaning; (2) whether
the nature and tenor of the actual language used by the
declarant suggests a statement of evaluative opinion or
objective fact; and (3) whether the statement is subject
to objective verification.’’ Id., 414.
The circumstances in which the Zillow post was made
are not disputed. The defendant at that time maintained
a Realtor profile on Zillow, which states that she is a
‘‘[h]ighly experienced sales professional.’’ As a result,
readers of her post may have inferred expertise on her
part with respect to real estate practices and transac-
tions. Moreover, in her appellate brief, the defendant
cites to General Statutes § 20-314 and states that ‘‘con-
sumers are entitled to assume that ‘only . . . persons
who bear a good reputation for honesty, truthfulness
and fair dealing and who are competent to transact the
business of a real estate broker or real estate salesper-
son’ will hold real estate licenses . . . .’’19 As applied
to the circumstances of this case, that proposition sug-
gests that readers of the defendant’s Zillow post were
entitled to assume that she was speaking honestly and
truthfully in light of her experience as a real estate
professional, which may have led them to expect an
objective perspective from the defendant.
The nature and tenor of the actual language used by
the defendant is less helpful. The defendant concedes
19
General Statutes § 20-314 (a) provides: ‘‘[Real estate] [l]icenses shall be
granted under this chapter only to persons who bear a good reputation for
honesty, truthfulness and fair dealing and who are competent to transact
the business of a real estate broker or real estate salesperson in such manner
as to safeguard the interests of the public.’’
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that it contains an objective statement of fact regarding
the plaintiff’s purported sales price advice. At the same
time, the Zillow post contains other statements that
appear to constitute opinion, rather than statements of
fact. Those statements nonetheless must be viewed in
the full context of the post, which centers on the defen-
dant’s objective statement of fact that the plaintiff
advised listing the property for $100,000 less than its
actual value as reflected by the sales price. That state-
ment of fact informs and is intertwined with the opinion
statements that follow in the post. A fair reading of the
defendant’s Zillow post is that it is precisely because
the plaintiff recommended an exorbitantly low sales
price that the defendant had ‘‘a feeling [that the plaintiff]
was never going to list [the property] rather bring in a
cash buying friend’’ and thought that he was a ‘‘shady
individual’’ of whom buyers and sellers should beware.
Importantly, the critical statement of fact in the
defendant’s Zillow post is subject to objective verifica-
tion. Although the defendant stated that the plaintiff
advised her to list the property for ‘‘$100k less [than]
we actually got,’’ the plaintiff provided a sworn affidavit
indicating that he provided her with a comparative mar-
ket analysis that recommended a sales price of $210,900
for the property. The defendant denied that averment,
creating an issue of material fact to be resolved by the
trier of fact.20 See Cweklinsky v. Mobil Chemical Co.,
20
We note that no discovery has taken place in this case, as the court
ordered a stay of ‘‘all discovery’’ upon the filing of the special motion to
dismiss in accordance with § 52-196a (d). The parties, therefore, have not
yet had an opportunity to depose each other. See Tryon v. North Branford,
58 Conn. App. 702, 716, 755 A.2d 317 (2000) (‘‘[d]eposition testimony often
. . . calls into question the credibility of the deponent’’); Gellman v. Lati-
more, 242 App. Div. 2d 920, 921, 665 N.Y.S.2d 377 (1997) (‘‘[D]efendant
has not yet had the opportunity to depose plaintiff. Summary judgment is
inappropriate where, as here, the existence of essential facts depends upon
knowledge exclusively within the possession of the moving party and [such
facts] might well be disclosed by . . . examination before trial or further
disclosure.’’ (Internal quotation marks omitted.)).
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supra, 267 Conn. 229 (‘‘the determination of the truthful-
ness of a statement is a question of fact for the jury’’).
In light of the foregoing, we cannot conclude that
the defendant’s Zillow post constituted mere opinion.
We are mindful that anti-SLAPP motions to dismiss are
designed to weed out meritless claims at an early stage
of litigation; see Baral v. Schnitt, supra, 1 Cal. 5th 384;
and that, with respect to the second prong of § 52-196a
(e) (3), they are governed by a minimal legal standard.
See Elder v. Kauffman, supra, 204 Conn. App. 825;
People’s United Bank v. Kudej, supra, 134 Conn. App.
442; see also Mindys Cosmetics, Inc. v. Dakar, 611 F.3d
590, 598 (9th Cir. 2010) (‘‘the second step of the anti-
SLAPP inquiry is often called the ‘minimal merit’
prong’’); cf. Priore v. Haig, supra, 344 Conn. 670
(D’Auria, J., concurring) (‘‘the special motion to dis-
miss permitted under § 52-196a is easily defeated under
a probable cause standard’’). Moreover, the precedent
of our Supreme Court instructs that ‘‘[w]here the court
cannot reasonably characterize the allegedly [defama-
tory] words as either fact or opinion . . . this becomes
an issue of fact for the jury . . . .’’ Goodrich v. Water-
bury Republican-American, Inc., supra, 188 Conn.
112 n.5.
Probable cause determinations are ‘‘fundamentally a
fact-specific inquiry.’’ United States v. Khounsavanh,
113 F.3d 279, 285 (1st Cir. 1997); see also Common-
wealth v. Melendez, 490 Mass. 648, 658, 194 N.E.3d 179
(2022) (‘‘[p]robable cause is a fact-intensive inquiry
[that] must be resolved based on the particular facts of
[the] case’’ (internal quotation marks omitted)). Where
objective facts central to an allegedly defamatory state-
ment are disputed in sworn affidavits, a summary dispo-
sition of the action is inappropriate. That is especially
the case given the circumstances here, in which a per-
son holding herself out to be a real estate professional
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on Zillow published a post on that real estate market-
place website that, as she maintains in her appellate
brief, pertained to whether another real estate profes-
sional was honest, truthful, and competent to engage
in real estate transactions. In response, the plaintiff has
averred in his complaint, his affidavit, and his objection
to the special motion to dismiss that the defendant’s
Zillow post contains an untruthful statement of fact.
Under the particular facts of this case, the defendant
should not be permitted to avail herself of the ‘‘special
statutory benefit’’; Lafferty v. Jones, supra, 336 Conn.
372; afforded by § 52-196a to summarily defeat the plain-
tiff’s action.21
Viewing the pleadings and affidavits of the parties in
the light most favorable to the plaintiff, we conclude
that the plaintiff satisfied the relatively minimal burden
under § 52-196a of establishing probable cause that he
will prevail on the merits of his complaint. For that
reason, the court properly denied the defendant’s spe-
cial motion to dismiss.
The judgment is affirmed.
In this opinion the other judges concurred.

21
We note that other procedural mechanisms remain available to the
defendant to challenge the substance of the plaintiff’s complaint, including
motions to strike and motions for summary judgment. See Practice Book
§§ 10-39 and 17-44.