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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 previously 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 noncompliance 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 defendant’s noncompliance was wilful and this court affirmed that finding.

3. This court declined to review the defendant’s challenge to the constitutionality 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 commenced the action seeking enforcement of the subpoena pursuant to

§ 19a-14 (a) (10), and the defendant did not challenge the constitutionality 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 defendant appealed to this court, DiPentima, C. J., and Alvord and Lavery, Js., which affirmed the judgment of

the trial court; thereafter, the court, Sheridan, J.,

granted the plaintiff’s motion for contempt; subsequently, 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 general, and Clare Kindall, solicitor general, for the appellee (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 subpoena duces tecum issued by the plaintiff, the Commissioner 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 constitutional 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 [plaintiff]. United Healthcare, a health insur[ance] provider,

contracted with an auditing firm, Verisk Analytics, to

conduct audits of various healthcare providers to investigate potential fraudulent billing activities.

‘‘After reviewing patient billings submitted by the

[defendant] to United Healthcare billing, Verisk Analytics 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 section initiated an investigation of allegations of fraudulent 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 subpoena, the present action seeking a contempt order

was initiated.’’

‘‘On December 10, 2015, the plaintiff . . . filed a petition for enforcement of [the] November 16, 2015 subpoena 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 defendant’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 Public 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 noncompliance with the court order’ but requested tha[t]

any questioning of [the defendant] regarding that explanation 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 defendant . . . 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 department] 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 outside 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 contempt 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 parties [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 [plaintiff] 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 sufficiently 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 violation 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 quotation 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 noncompliance 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.’’ Specifically, 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 defendant’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 defendant’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 evidence. 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 testimony 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 discretion 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 defendant’s challenge to the award of attorney’s fees fails.

III

The defendant finally claims that the trial court violated his constitutional 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. 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 specifically to Practice Book § 13-9, when it issued its order

permitting the plaintiff to search the defendant’s property for patient records that were the subject of a subpoena that the defendant refused to comply with.

The plaintiff commenced this action seeking enforcement of the subpoena pursuant to General Statutes

§ 19a-14, which is entitled, ‘‘Powers of department concerning regulated professions.’’ Section 19a-14 (c)

affords the department ‘‘all powers and duties normally

vested with a board in administering regulatory jurisdiction over such professions . . . including, but not limited to, standards for entry and renewal; grounds for

discipline; receiving and processing complaints; and

disciplinary sanctions . . . .’’ Specifically, § 19a-14 provides 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 documents. 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 constitutionality 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.