Comm'r of Pub. Health v. Colandrea

221 Conn.App. 631

302 A.3d 370

COMMISSIONER OF PUBLIC HEALTH v. Anthony COLANDREA

AC 45056

Appellate Court of Connecticut.

Argued May 9, 2023

Officially Released September 19, 2023

A. Paul Spinella, Hartford, for the appellant (defendant).

Susan Castonguay, assistant attorney general, with whom, on the brief, was William Tong, attorney general, for the appellee (plaintiff).

Moll, Seeley and Pellegrino, Js.

MOLL, J.

The defendant, Anthony Colandrea, appeals from the judgment of the trial court (1) denying his motion to vacate a contempt enforcement order, which stemmed from a contempt judgment rendered against him following his noncompliance with a subpoena duces tecum issued by the plaintiff, the Commissioner of Public Health, ¹ for certain records of his dental practice, and (2) granting in part the plaintiff's motion to increase a per diem fine that the court ordered as a contempt sanction. On appeal, the defendant claims that the court's judgment constitutes error because (1) the present subpoena enforcement action was barred by the doctrine of res judicata, (2) the contempt proceeding against him was criminal in nature, such that (a) he was entitled to several rights afforded by the federal constitution and (b) the Office of the Attorney General, which represents the plaintiff, lost its statutory authority to continue seeking to enforce the subpoena on behalf of the plaintiff, and (3) the investigation with respect to which the plaintiff issued the subpoena has been concluded, thereby depriving the plaintiff of its statutory authority to continue prosecuting the present subpoena enforcement action. ² We disagree and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history, as set forth by this court in a prior opinion or as undisputed in the record, are relevant to our disposition of this appeal. "[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 ... practitioner licensing and investigations section [of the Department of Public Health (department)] 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 [subpoena enforcement] action ... was initiated. ³

"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, [cert. denied, 327 Conn. 957, 172 A.3d 204 (2017) ]. The defendant petitioned [our] 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 [subpoena]. ... After [a] 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 [ Sheridan, J. ] 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 [a] 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. ...

"On January 2, 2019, [after conducting evidentiary hearings] 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), ⁴ 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.’ " (Footnotes added.) Commissioner of Public Health v. Colandrea , 202 Conn. App. 815, 817–20, 247 A.3d 193, cert. denied, 336 Conn. 930, 248 A.3d 1 (2021). The defendant appealed from the January 2, 2019 decision, which this court affirmed on February 23, 2021. Id., at 826, 247 A.3d 193. Thereafter, the defendant filed a petition for certification to appeal from this court's decision, which our Supreme Court denied on April 6, 2021. Commissioner of Public Health v. Colandrea , 336 Conn. 930, 248 A.3d 1 (2021).

On April 23, 2021, the plaintiff filed a motion for contempt on the basis of the defendant's failure to comply with the court's supplemental orders entered on January 2, 2019 (supplemental orders). The plaintiff asserted that (1) on April 20, 2021, two department investigators attempted to inspect the office of the defendant's dental practice in Rocky Hill, (2) the defendant permitted the investigators to access the basement of the office via an outside hatchway, wherein they did not locate any patient files, and (3) despite several requests, and in violation of the supplemental orders, the defendant refused to allow the investigators to access the rest of the office. On May 20, 2021, the plaintiff filed another motion for contempt, asserting that the defendant had violated the supplemental orders by failing to produce any patient records. On June 21, 2021, following two evidentiary hearings, the court granted the plaintiff's motions for contempt, concluding that (1) the supplemental orders were clear and unambiguous and (2) the defendant had "failed or refused to produce the specified patient records and, through the deliberate and calculated use of various subterfuges, continues to deny the department full and complete access to all the patient records, and has therefore wilfully disobeyed the court's order[s]." As a sanction, "to coerce the defendant into compliance with its order[s]," the court ordered that, unless he complied with the supplemental orders within ten days, the defendant was required to pay to the plaintiff a fine of $1000 per day, pending compliance. ⁵ The court further ordered that the plaintiff could petition the court to incarcerate the defendant if he failed (1) to comply with the supplemental orders within thirty days and (2) to pay the fine. ⁶

On July 8, 2021, the defendant filed a motion to vacate the June 21, 2021 enforcement order, asserting that (1) the department had "lost jurisdiction to regulate, investigate, or discipline [him]" following the revocation of his dental license on April 28, 2021, ⁷ (2) he no longer maintained a dental practice or a dental office, such that the court's supplemental order permitting the department to search his office was moot, and (3) the supplemental orders authorized the plaintiff to access records that exceeded the scope of the subpoena. On July 16, 2021, the plaintiff filed an objection to the defendant's motion to vacate. On the same day, the plaintiff filed motions (1) to increase the fine to $5000 per day and (2) to incarcerate the defendant, with both motions predicated on the defendant's continued failure to comply with the supplemental orders. On August 27, 2021, the defendant filed an objection to the plaintiff's motion to incarcerate, and, on October 5, 2021, the defendant filed a reply memorandum to the plaintiff...