Commissioner of Public Health v. Colandrea

C
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         COMMISSIONER OF PUBLIC HEALTH v.
               ANTHONY COLANDREA
                    (AC 42475)
                       Elgo, Cradle and Alexander, Js.

                                    Syllabus

The defendant, a dentist licensed by the Department of Public Health,
    appealed to this court from the judgment of the trial court denying in
    part his motion to vacate a prior contempt judgment stemming from
    his noncompliance with a subpoena duces tecum seeking the production
    of certain patient records, issued by the plaintiff, the Commissioner of
    Public Health, pursuant to statute (§ 19a-14 (a) (10)). The court pre-
    viously had granted a petition for the enforcement of the subpoena and
    ordered the defendant to release the records to the department, and
    this court affirmed that order. The trial court subsequently granted the
    plaintiff’s motion to find the defendant in contempt for failure to comply
    with the subpoena and ordered the defendant to pay a coercive fine
    each day until he produced the records to the department. Thereafter,
    the court affirmed its finding of contempt but vacated the fine, and it
    issued supplemental orders that the defendant permit the department
    to search his dental office for the patient records and awarded attorney’s
    fees and costs to the plaintiff pursuant to the statute (§ 52-256b (a))
    that permits the award of attorney’s fees in contempt proceedings in
    the discretion of the court. Held:
1. The defendant’s claim that the trial court erred in finding that his noncom-
    pliance with the subpoena was wilful was unavailing; the court found
    the defendant’s testimony as to how the subpoenaed records came to
    be discarded or destroyed was not credible and concluded that the
    defendant had failed to prove that he was unable to comply with the
    subpoena’s request for all applicable records, and, as the defendant bore
    the burden of proving that his noncompliance was not wilful, the plaintiff
    was not required to present evidence in opposition to the defendant’s
    claim.
2. The trial court did not abuse its discretion in awarding the plaintiff
    attorney’s fees pursuant to § 52-256b (a), as the court found the defen-
    dant’s noncompliance was wilful and this court affirmed that finding.
3. This court declined to review the defendant’s challenge to the constitution-
    ality of the trial court’s order permitting the plaintiff to search his office;
    the defendant claimed the search violated his fourth amendment rights
    pursuant to our rules of practice (§ 13-9), however, the plaintiff com-
    menced the action seeking enforcement of the subpoena pursuant to
    § 19a-14 (a) (10), and the defendant did not challenge the constitutional-
    ity of that statute or the court’s ability to issue the order under that
    statute.
      Argued October 19, 2020—officially released February 23, 2021

                              Procedural History

  Petition for an order to enforce a subpoena duces
tecum, brought to the Superior Court in the judicial
district of Hartford and tried to the court, Robaina, J.;
judgment granting the petition, from which the defen-
dant appealed to this court, DiPentima, C. J., and Alv-
ord and Lavery, Js., which affirmed the judgment of
the trial court; thereafter, the court, Sheridan, J.,
granted the plaintiff’s motion for contempt; subse-
quently, the court, Sheridan, J., granted in part the
defendant’s motion to vacate, and the defendant
appealed to this court. Affirmed.
   Paul Spinella, for the appellant (defendant).
  Susan Castonguay, assistant attorney general, with
whom, on the brief, were William Tong, attorney gen-
eral, and Clare Kindall, solicitor general, for the appel-
lee (plaintiff).
                          Opinion

   CRADLE, J. The defendant, Anthony Colandrea, a
dentist, appeals from the judgment of the trial court
denying in part his motion to vacate a prior contempt
judgment stemming from his noncompliance with a sub-
poena duces tecum issued by the plaintiff, the Commis-
sioner of Public Health,1 for certain records of his dental
practice. On appeal, the defendant claims that the trial
court (1) erred in finding that his noncompliance was
wilful, (2) improperly awarded attorney’s fees on the
basis of wilful noncompliance, and (3) violated his con-
stitutional right to be free from unreasonable searches
when it issued an order permitting the plaintiff to search
the office of his dental practice without a finding of
probable cause or a valid search warrant. We affirm
the judgment of the trial court.
   The trial court set forth the following relevant factual
and procedural history. ‘‘[The defendant] was licensed
as a dentist and has been a self-employed dentist in
Connecticut since 1980. In 2014, [the defendant] was
the subject of an investigation commenced by the [plain-
tiff]. United Healthcare, a health insur[ance] provider,
contracted with an auditing firm, Verisk Analytics, to
conduct audits of various healthcare providers to inves-
tigate potential fraudulent billing activities.
   ‘‘After reviewing patient billings submitted by the
[defendant] to United Healthcare billing, Verisk Analyt-
ics attempted to obtain certain patient records from
[the defendant]. [The defendant] refused to provide the
requested records, leading Verisk Analytics to refer the
matter to the Office of the Attorney General, which
subsequently referred the matter to the [plaintiff].
   ‘‘On August 27, 2014, the [Department of Public
Health’s] practitioner licensing and investigations sec-
tion initiated an investigation of allegations of fraudu-
lent billing activities by [the defendant]. On November
16, 2015, [the plaintiff] issued a subpoena duces tecum
to [the defendant] for complete copies of all records
for thirty-one patients identified by Verisk Analytics.
When [the defendant] refused to comply with the sub-
poena, the present action seeking a contempt order
was initiated.’’
   ‘‘On December 10, 2015, the plaintiff . . . filed a peti-
tion for enforcement of [the] November 16, 2015 sub-
poena duces tecum served [on] [the defendant] seeking
production of certain patient records in connection with
an investigation of possible fraudulent billing practices.
Th[e] [trial] court, Robaina, J., conducted a hearing
regarding the petition. On January 25, 2016, the court
granted [the plaintiff’s] petition and overruled the defen-
dant’s objection thereto, ordering the defendant to
release thirty-one subpoenaed patient records to [the
department]. The defendant appealed that decision and,
on August 1, 2017, in a per curiam decision, [this court]
affirmed the [trial court’s] granting of the petition for
enforcement of [the] subpoena. Commissioner of Pub-
lic Health v. Colandrea, 

175 Conn. App. 254

, 

167 A.3d 471

(2017). The defendant petitioned the Supreme Court
for certification. On November 8, 2017, [our] Supreme
Court denied the defendant’s petition. Commissioner
of Public Health v. Colandrea, 

327 Conn. 957

, 

172 A.3d 204

(2017).
   ‘‘On November 20, 2017, [the plaintiff] moved the
court to find the defendant in contempt for failing to
comply with the subpoenaed patient records. The
motion was calendared for a hearing on December 4,
2017. On November 28, 2017, the [defendant] moved
for a continuance of the hearing, supposedly because
[he] was ‘in Florida, and unable to attend or testify on
December [4].’ . . . The continuance was denied. On
December 4, 2017, the motion appeared on the short
calendar and the parties appeared and were heard. [The
defendant] was represented by counsel. At the hearing,
neither [the defendant] or his counsel informed the
court—or even suggested—that the records had been
‘accidentally destroyed.’ Quite to the contrary, counsel
represented that ‘there is an explanation for the non-
compliance with the court order’ but requested tha[t]
any questioning of [the defendant] regarding that expla-
nation be deferred until subsequent counsel could be
present, because ‘there is a fifth amendment problem.’
[The defendant] did briefly take the stand but, on the
advice of counsel, refused to answer any questions
regarding the subpoenaed documents, invoking his fifth
amendment privilege against self-incrimination.
   ‘‘After the hearing, counsel for [the defendant] filed
a motion for [a] protective order, based [on] a claim
that [the] production of [the] documents in response
to the subpoena would violate the fifth amendment
prohibition against self-incrimination. The court denied
the motion for [a] protective order and, on December
10, 2017, declared [the defendant] in contempt of court
and ordered the defendant to pay a coercive fine of
[$1000] per day to the Office of the Attorney General
from the date of the order until the documents which
are the subject of the plaintiff’s petition for [the]
enforcement of [the] subpoena were delivered to the
[department]. . . .
   ‘‘On December 15, 2017, new counsel for the defen-
dant . . . appeared in the case and filed the present
motion to vacate [the] order [of contempt]. In the
motion, the defendant conceded that he had failed to
produce the subpoenaed patient records to [the depart-
ment] but nonetheless moved to vacate the coercive
fine based on the impossibility of complying with the
court order. The defendant asserted that he could not
comply with the court’s order because the documents
are no longer in existence. The defendant explained
that the subpoenaed documents were destroyed under
circumstances which the defendant alleged were out-
side his knowledge or control.
  ‘‘The court heard evidence regarding the question of
inability to comply on January 11, May 17 and June
25, 2018. Posthearing briefs were submitted by both
parties.’’ (Citation omitted; footnote omitted.)
   On January 2, 2019, the court issued a memorandum
of decision, in which it granted in part and denied in part
the defendant’s motion to vacate the prior contempt
judgment. The court affirmed its prior finding of con-
tempt but vacated the $1000 per day fine. The court
issued supplemental orders that the defendant turn over
any of the relevant records and that he ‘‘permit [the
department] full and complete access to [his practice]
for the purposes of inspecting and verifying the manner
of storage, existence and location of stored patient
records and other documents.’’ The court also awarded
attorney’s fees and costs to the plaintiff pursuant to
General Statutes § 52-256b (a), and it invited ‘‘[t]he par-
ties [to] contact the court to schedule a hearing to
present evidence and argument as to the amount of
attorney’s fees to be awarded.’’ This appeal followed.2
                             I
   The defendant first claims that the court erred in
failing to vacate the judgment of contempt against him
because his failure to comply was not wilful because
‘‘the records had been destroyed as a result of basement
flooding and mold contamination and . . . the [plain-
tiff] failed to refute that evidence in any way.’’ We are
not persuaded.
   ‘‘Contempt is a disobedience to the rules and orders
of a court which has power to punish for such an
offense. . . . If the underlying court order was suffi-
ciently clear and unambiguous, we . . . determine
whether the trial court abused its discretion in issuing
. . . a judgment of contempt, which includes a review
of the trial court’s determination of whether the viola-
tion was wilful or excused by a good faith dispute or
misunderstanding. . . . [T]his court will not disturb
the trial court’s orders unless it has abused its legal
discretion or its findings have no reasonable basis in
fact. . . . It is within the province of the trial court to
find facts and draw proper inferences from the evidence
presented. . . . [E]very reasonable presumption will
be given in favor of the trial court’s ruling, and [n]othing
short of a conviction that the action of the trial court
is one which discloses a clear abuse of discretion can
warrant our interference. . . .
   ‘‘To constitute contempt, a party’s conduct must be
wilful. . . . Noncompliance alone will not support a
judgment of contempt. . . . The inability of a party to
obey an order of the court, without fault on his part,
is a good defense to the charge of contempt. . . . The
contemnor must establish that he cannot comply, or
was unable to do so.’’ (Citations omitted; internal quota-
tion marks omitted.) Brody v. Brody, 

145 Conn. App. 654

, 662, 

77 A.3d 156

(2013).
   Here, the defendant does not challenge the clarity of
the court’s order that he comply with the subpoena, nor
does he contend that he complied with it. The defendant
argues only that the court erred in finding that his non-
compliance was wilful. In addressing the defendant’s
claim of wilfulness, the court noted the defendant’s
testimony that he had a practice of storing, among other
things, patient records in the basement of his dental
office, and that, on at least two occasions, July 28, 2016
and February 19, 2017, the basement was subject to
minor flooding from leaky plumbing. The court stated
that ‘‘testimony was offered that after one of these
occasions, certain materials stored in the basement
were discarded, probably including patient records
responsive to the November 16, 2015 subpoena. The
court notes that testimony, but does not find that fact
to be proven by clear and convincing evidence.’’ Specifi-
cally, the court found that ‘‘[the defendant’s] testimony
as to how the subpoenaed records came to be discarded
or destroyed is relatively straightforward but ultimately
not credible.’’ The court specifically rejected the defen-
dant’s testimony that the subpoenaed records were in
the basement and that those records were discarded
due to the presence of mold. The court further found
that ‘‘[a] great deal of testimony was offered that
strongly suggested the existence of records related to
the patients listed on the subpoena other than those
that were allegedly stored in the basement of [the defen-
dant’s] office,’’ and that the defendant ‘‘made little to
no effort to locate or produce records responsive to
the subpoena.’’ The court reasoned that ‘‘several of the
patients identified in the subpoena continued in the
care of [the defendant’s] office after the service of the
subpoena, and records would have been kept of those
visits. . . . [The defendant’s] attempt to explain how
patient records were kept and maintained for these
returning patients after their files were supposedly sent
to the basement was not at all credible, and there is a
strong possibility that some or all of the patient records
requested by the subpoena still exist and are in use by
the dental office.’’ (Footnote omitted.) On those bases,
the court concluded that the defendant failed to prove
‘‘by clear and convincing evidence that he is unable to
comply with the subpoena’s request for any and all
documents in his possession and control related to the
patients in question.’’ The court further concluded that
the defendant failed to sustain ‘‘his burden of proving
a complete inability to comply with the court’s order.’’
  In challenging the court’s finding of wilfulness, the
defendant contends that the court erred in finding that
his noncompliance was wilful because his testimony to
the contrary was uncontroverted by the plaintiff. The
defendant sets forth all of the evidence that he pre-
sented in support of his argument that he was unable
to comply with the subpoena—evidence that was
expressly discredited by the trial court—and asks this
court to draw an alternative conclusion from that evi-
dence. It is not the role of this court to do so. ‘‘[T]he
trial judge is the sole arbiter of the credibility of the
witnesses and the weight to be given specific testimony
. . . and the trial court is privileged to adopt whatever
testimony [it] reasonably believes to be credible. . . .
On appeal, we do not retry the facts or pass on the
credibility of witnesses.’’ (Internal quotation marks
omitted.) FirstLight Hydro Generating Co. v. Stewart,

328 Conn. 668

, 679–80, 

182 A.3d 67

(2018). Thus, the
court was not required to credit the defendant’s testi-
mony or the evidence that he presented, and, because
he bore the burden of proving that his noncompliance
was not wilful, the plaintiff was not required to present
any evidence in opposition to the defendant’s claim.
Accordingly, the defendant’s claim that the court erred
in finding that his noncompliance was wilful is
unavailing.
                             II
   The defendant next challenges the court’s award of
attorney’s fees. ‘‘The authority of the trial court to award
attorney’s fees following a contempt proceeding is well
settled. Once a contempt has been found . . . [§ 52-
256b (a)] establishes a trial court’s power to sanction
a noncomplying party through the award of attorney’s
fees. . . . The award of attorney’s fees in contempt
proceedings is within the discretion of the trial court.’’
(Footnote omitted; internal quotation marks omitted.)
O’Toole v. Hernandez, 

163 Conn. App. 565

, 577, 

137 A.3d 52

, cert. denied, 

320 Conn. 934

, 

134 A.3d 623

(2016).
Section 52-256b (a) provides: ‘‘When any person is
found in contempt of any order or judgment of the
Superior Court, the court may award to the petitioner
a reasonable attorney’s fee and the fees of the officer
serving the contempt citation, such sums to be paid by
the person found in contempt.’’
   The defendant argues that the court abused its discre-
tion in awarding attorney’s fees in the absence of a
finding of wilful noncompliance. Because the court did,
in fact, find that the defendant’s noncompliance was
wilful, and we have affirmed that finding, the defen-
dant’s challenge to the award of attorney’s fees fails.
                            III
   The defendant finally claims that the trial court vio-
lated his constitutional right to be free from unreason-
able searches when it issued an order permitting the
plaintiff to search the office of his dental practice with-
out a finding of probable cause or a valid search war-
rant. Specifically, the defendant argues that the court’s
order violated the fourth amendment to the United
States constitution because our rules of practice, specif-
ically Practice Book § 13-9, do ‘‘not authorize the court
to order an indiscriminate search of private property
to obtain evidence to substantiate a perjury charge.’’3
He contends that the order ‘‘exceeded the physical
inspection authorized by Practice Book § 13-9, and,
[thus], violated the fourth amendment’s prohibition
against general warrants.’’ The defendant’s argument is
misplaced in that the court did not make any reference
whatsoever to our rules of practice, or, more specifi-
cally to Practice Book § 13-9, when it issued its order
permitting the plaintiff to search the defendant’s prop-
erty for patient records that were the subject of a sub-
poena that the defendant refused to comply with.
   The plaintiff commenced this action seeking enforce-
ment of the subpoena pursuant to General Statutes
§ 19a-14, which is entitled, ‘‘Powers of department con-
cerning regulated professions.’’ Section 19a-14 (c)
affords the department ‘‘all powers and duties normally
vested with a board in administering regulatory jurisdic-
tion over such professions . . . including, but not lim-
ited to, standards for entry and renewal; grounds for
discipline; receiving and processing complaints; and
disciplinary sanctions . . . .’’ Specifically, § 19a-14 pro-
vides in relevant part: ‘‘(a) . . . The department shall
. . . (10) Conduct any necessary review, inspection or
investigation regarding qualifications of applicants for
licenses or certificates, possible violations of statutes
or regulations, and disciplinary matters. In connection
with any investigation, the Commissioner of Public
Health or the commissioner’s authorized agent may
administer oaths, issue subpoenas, compel testimony
and order the production of books, records and docu-
ments. If any person refuses to appear, to testify or to
produce any book, record or document when so
ordered, a judge of the Superior Court may make such
order as may be appropriate to aid in the enforcement
of this section . . . .’’ Thus, the court’s authority to
enforce the subpoena power of the plaintiff is derived
from § 19a-14.
   Here, the defendant has not challenged the constitu-
tionality of § 19a-14 (a) (10), the authority pursuant to
which the plaintiff commenced this action to enforce
the subpoena that it had served upon the defendant.
Because the defendant has not challenged the court’s
authority to issue the order under § 19a-14 (a) (10), or
the constitutionality of that statute, we cannot review
his challenge to the constitutionality of the order.4 See
U.S. Bank, N.A. v. Armijo, 

195 Conn. App. 843

, 846,

228 A.3d 131

(2020).
      The judgment is affirmed.
      In this opinion the other judges concurred.
  1
    The Commissioner of Public Health acts on behalf of the Department
of Public Health, and references in this opinion to the department include
the commissioner.
  2
    ‘‘[A] civil contempt order requiring the contemnor to incur a cost or take
specific action . . . satisfies the second prong of [State v. Curcio, 

191 Conn. 27

, 31, 

463 A.2d 566

(1983)] and, therefore, constitutes an appealable final
judgment.’’ Khan v. Hillyer, 

306 Conn. 205

, 217, 

49 A.3d 996

(2012).
   3
     Practice Book § 13-9 (a) provides in relevant part: ‘‘In any civil action,
in any probate appeal, or in any administrative appeal where the judicial
authority finds it reasonably probable that evidence outside the record will
be required, any party may serve in accordance with Sections 10-12 through
10-17 upon any other party a request to afford the party submitting the
request the opportunity to inspect, copy, photograph or otherwise reproduce
designated documents or to inspect and copy, test or sample any tangible
things in the possession, custody or control of the party upon whom the
request is served or to permit entry upon designated land or other property
for the purpose of inspection, measuring, surveying, photographing, testing
or sampling the property or any designated object or operation thereon.
. . .’’
   4
     To the extent the defendant maintains that the warrantless search of
his office was unreasonable in that it ‘‘authorized a nearly unfettered search
of [his] private property,’’ that argument is belied by the plain language
limiting the scope of the search and the context of the proceeding in which
it was ordered. The defendant was afforded several opportunities over the
course of several years to comply with the subpoena, but he failed to do
so. The plaintiff commenced this action to enforce the subpoena that the
defendant had successfully avoided since 2015. Since 2015, his reasons for
noncompliance have been fluid, and, most recently, as noted herein, the
defendant has claimed that the records sought by the plaintiff no longer
exist because they were destroyed after they were contaminated by toxic
mold caused by flooding in the basement of his practice, where he allegedly
had been storing those and other active and inactive patient files. The court
held evidentiary hearings, first on the plaintiff’s motion for contempt, then
on the defendant’s motion to vacate. At both hearings, the defendant was
afforded the opportunity to be heard. The hearing on the motion to vacate,
which gave rise to the order now at issue, spanned three days, and the
defendant testified and presented exhibits in defense of his noncompliance.
After finding that the defendant’s explanation for noncompliance was not
credible, the court issued the order authorizing a search that was limited
in scope to allow an inspection of the defendant’s records and storage
practices.

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