Idlibi v. Hartford Courant Co. ( 2022 )

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AMMAR IDLIBI v. HARTFORD COURANT COMPANY
(AC 44977)
Cradle, Suarez and Seeley, Js.
Syllabus
The self-represented plaintiff, a pediatric dentist, sought to recover damages
for, inter alia, defamation and intentional misrepresentation in connec-
tion with two articles published by the defendant. The articles concerned
the plaintiff’s disciplinary proceedings before the Connecticut State Den-
tal Commission (commission) that stemmed from a complaint about
his treatment of a three year old child. A reporter employed by the
defendant contacted the plaintiff after he learned of a similar complaint
against another dentist at the plaintiff’s dental practice. The reporter
left the plaintiff a voicemail, in which he asked for an interview. The
parties disputed whether the reporter informed the plaintiff in that
voicemail or in subsequent conversations that he would be the subject
of the published articles. The defendant filed a motion for summary
judgment on all counts of the plaintiff’s complaint, arguing, inter alia,
that it was protected from liability for defamation under the fair report
privilege and substantial truth doctrine and that the plaintiff’s intentional
misrepresentation claim was legally insufficient. In his objection to the
motion for summary judgment, the plaintiff pointed to specific state-
ments in the articles to which he objected, including the headline of
the first article, and argued that the recorded voicemail from the reporter
provided sufficient evidence to support his claim of misrepresentation.
The court granted the defendant’s motion for summary judgment, con-
cluding that the alleged defamatory statements were protected under
either the fair report privilege, which protects the publication of a report
of an official action or proceeding that deals with a matter of public
concern if the report is accurate and complete or a fair abridgment of
the proceeding, or the substantial truth doctrine. Moreover, on the basis
of an email exchange between the reporter and a senior editor employed
by the defendant, which indicated that the original draft of at least one
of the articles had referenced the second dentist, the court held that,
because the reporter’s affirmative representation was true, the reporter
had no duty to tell the plaintiff he would be the subject of the defendant’s
article, and the plaintiff had no legal right to interfere with the defen-
dant’s publication of a story about him, the defendant was entitled
to summary judgment on the plaintiff’s intentional misrepresentation
claim. Held:
1. The trial court did not err in granting summary judgment with respect
to the plaintiff’s defamation claims on the basis that the fair report
privilege protected the defendant from liability:
a. The trial court properly found that the statement in one of the defen-
dant’s articles that the Department of Public Health had been investigat-
ing the plaintiff for two years was protected by the fair report privilege,
as it was a fair and accurate abridgement of the underlying proceedings;
moreover, if describing the proceedings before the commission as an
‘‘investigation’’ strayed from the truth of the matter, it did so only slightly
and well within the leeway afforded to reporters of official matters of
public concern.
b. The plaintiff could not prevail on his claim that the defendant abused
the fair report privilege because the headline of one article used the
word ‘‘children’’ rather than the word ‘‘child’’ and conveyed a message
that the state’s inquiry extended beyond the three year old child: the
headline was accurate overall and any imprecision therein was amelio-
rated by the accuracy of the article’s abridgement of the proceedings,
which clearly indicated that the case involved only one child.
c. This court declined to review the plaintiff’s claim that the defendant’s
use of a specific statistic from another state agency in one of the articles
was an abuse of the fair report privilege: the trial court determined that
the fair report privilege did not apply to that statement, and, instead,
that it was exempt from liability for defamation because that statistic
was substantially true; moreover, the plaintiff failed to sufficiently brief
his argument that the statistic was not substantially true.
2. The trial court properly granted the defendant’s motion for summary
judgment with respect to the claim of intentional misrepresentation:
contrary to the plaintiff’s claim, the trial court did not choose between
competing interpretations of fact, rather, the reporter’s statement that
he was working on an article about another dentist was apparently true,
thus defeating any claim of intentional misrepresentation.
Argued September 12—officially released December 13, 2022
Procedural History
Action to recover damages for, inter alia, defamation,
and for other relief, brought to the Superior Court in
the judicial district of New Britain, where the court,
Farley, J., granted the defendant’s motion for summary
judgment and rendered judgment thereon, from which
the plaintiff appealed to this court. Affirmed.
Ammar A. Idlibi, self-represented, the appellant
(plaintiff).
William S. Fish, Jr., with whom was Alexa T. Mill-
inger, for the appellee (defendant).
Opinion
CRADLE, J. The self-represented plaintiff, Ammar
Idlibi, a pediatric dentist, appeals from the summary
judgment rendered in favor of the defendant, Hartford
Courant Company, on his claims of defamation and
intentional misrepresentation.1 This appeal arises from
two articles the defendant published reporting on the
plaintiff’s disciplinary proceedings before the Depart-
ment of Public Health (DPH) and the Connecticut State
Dental Commission (commission). On appeal, the plain-
tiff claims that the court erroneously (1) concluded
that the fair report privilege applied to the allegedly
defamatory statements made by the defendant, and (2)
rendered summary judgment on the plaintiff’s inten-
tional misrepresentation claim. We disagree and, there-
fore, affirm the judgment of the trial court.
The record before the court, viewed in the light most
favorable to the plaintiff as the nonmoving party on the
prevailing motion for summary judgment, reveals the
following facts and procedural history. The plaintiff was
the subject of two separate disciplinary proceedings
beginning in 2013 and 2016. The first proceeding fol-
lowed allegations that the plaintiff improperly pre-
scribed medications, outside the scope of dentistry, to
himself and his family.2
The second proceeding arose from the plaintiff’s
treatment of a three year old patient on April 26, 2016.
On the scheduled treatment date, the plaintiff placed
the patient under general anesthesia and placed crowns
on eight of her teeth without the consent of the patient’s
mother, who had provided informed consent for the
placement of only one crown. The patient’s mother
submitted a complaint to DPH, which subsequently led
to charges before the commission. A panel of commis-
sioners (panel) conducted hearings on January 11 and
16, 2018, following which the panel submitted a pro-
posed decision to the commission, pursuant to General
Statutes § 4-179,3 and notified the plaintiff and DPH’s
attorney that a hearing on the proposed decision would
be held before the full commission on September 5,
2018.4
On or about August 31, 2018, prior to the plaintiff’s
full commission hearing, Matthew Ormseth, a reporter
employed by the defendant, called the plaintiff and left
him the following voicemail message: ‘‘Hi, Ammar, my
name is Matt Ormseth. I’m a reporter with the Hartford
Courant. . . . [A] woman who put her daughter into
Smile by Design5 . . . a few weeks ago told me that
her daughter went through a pretty traumatic experi-
ence there and ended up having four teeth extracted and
having eight stainless steel crowns installed in about a
half hour, and she’s very concerned about this. And
she’s going to DPH, and . . . I learned from DPH that
. . . you’re being investigated for doing something sim-
ilar to a three year old girl, and you’ve got a hearing
coming up on September 5th, and . . . I just want to
hear your side of the story and . . . give you the oppor-
tunity to respond to some of these complaints, some
of these allegations. . . .’’ (Footnote added.) Ormseth
then provided his phone number and encouraged the
plaintiff to call him back. The plaintiff later returned
Ormseth’s call, but the substance of their discussion is
disputed by the parties. The plaintiff alleges that Orm-
seth never informed the plaintiff that he would be the
subject of the published article, and Ormseth avers that
he did.
On September 5, 2018, before the plaintiff’s commis-
sion hearing, the defendant published an article,
authored by Ormseth, entitled ‘‘State Probes Terryville
Dentist for Excessive Work on Children’s Teeth’’ (first
article). The article included an image of a child under-
going a dental procedure.6 Following the image, the
article begins with the following statements: ‘‘The 3-
year-old girl had been told she needed a crown. When
the operation was over, she had eight.
‘‘After a two-year investigation, the state Department
of Public Health has concluded the work was unneces-
sary and medically unsound, and recommended that
the man who did it, Terryville dentist Ammar Idlibi, be
fined, put on probation and be monitored regularly. A
hearing before the state’s dental oversight board is set
for Wednesday.’’
The first article then includes information from an
interview with David Dearborn, a spokesperson for the
Department of Social Services (DSS). Among the infor-
mation attributed to Dearborn is the following statistic
published in the first article: ‘‘In Connecticut, just 37
steel crowns were placed on kids under general anes-
thesia who were insured by Medicaid in the last fiscal
year.’’ The first article subsequently states that,
‘‘[d]espite the DPH inquiry and a $2,000 penalty in 2014
for prescribing codeine, Xanax, Valium and other drugs
outside the scope of dentistry to himself and family
members, [the plaintiff] has been allowed to keep prac-
ticing and treating children. His license was not sus-
pended while DPH investigated.’’ (Internal quotation
marks omitted.)
On the same day, September 5, 2018, after conducting
its hearing, the commission concluded that ‘‘the plaintiff
(1) failed to obtain adequate informed consent from
the patient’s mother to place crowns on eight of the
patient’s teeth, (2) placed one or more crowns without
adequate justification, (3) failed to chart findings of
cervical decalcification adequately, (4) failed to attempt
treatment of the cervical decalcification by other
means, and (5) failed to chart caries or other dental
disease adequately for one or more of the teeth that
was crowned. The only charge that the commission did
not find against the plaintiff was the allegation that
the plaintiff had failed to make adequate attempts at
treatment without general anesthesia, as the commis-
sion determined there was insufficient evidence to sup-
port that charge. Subsequently, the commission ordered
sanctions against the plaintiff, including the payment
of a $10,000 civil penalty, placement of a reprimand on
his license, and a three year probationary period during
which his license would be subject to conditions.’’7
Idlibi v. State Dental Commission, 212 Conn. App. 501,
510–11, 275 A.3d 1214, cert. denied, 345 Conn. 904, 282
A.3d 980 (2022).
Later that same day, the defendant published a sec-
ond article—this one entitled: ‘‘Dental Board Disci-
plines Terryville Dentist for Doing Unnecessary Work
on 3-Year-Old’’ (second article). The second article
reported on the commission’s decision and then largely
restated the same information published in the first arti-
cle.
On August 26, 2020, the plaintiff commenced this
action by way of a four count complaint alleging defa-
mation, intentional misrepresentation, negligent inflic-
tion of emotional distress, and gross negligence. On
January 22, 2021, the defendant filed a motion for sum-
mary judgment on all four counts of the plaintiff’s com-
plaint.8 As to the defamation claim, the defendant
argued that it was entitled to judgment as a matter of law
because it was protected from liability for defamation
under the fair report privilege and substantial truth
doctrine. The defendant further asserted that the plain-
tiff needed to demonstrate that the defendant acted
with actual malice to succeed on his defamation claim.
Regarding the intentional misrepresentation claim, the
defendant argued that the claim was legally insufficient.
In his opposition to the defendant’s motion, filed Feb-
ruary 16, 2021, the plaintiff responded that five state-
ments from the two articles were false and, further, the
defendant was not entitled to the fair report privilege
on the basis thereof: the first article’s headline; the
statement that DPH conducted a two year investigation
into the plaintiff; the statement that DPH concluded
that the plaintiff’s treatment of the patient was unneces-
sary and medically unsound; the statistic that ‘‘37 steel
crowns were placed on kids under general anesthesia
who were insured by Medicaid’’ in the previous year;
and the statement regarding the plaintiff’s prescribing
medications outside the scope of dentistry to himself
and his family. Additionally, the plaintiff argued that
Ormseth’s August 31, 2018 voicemail message provided
sufficient evidence to support his claim of intentional
misrepresentation. In response, the defendant asserted
that the statements identified by the plaintiff were sub-
stantially true and privileged. The plaintiff subsequently
filed a surreply memorandum on April 12, 2021, reas-
serting that the five statements listed in his memoran-
dum in opposition of summary judgment were defama-
tory and not privileged.9
In its August 6, 2021 memorandum of decision, the
court found in favor of the defendant and rendered
summary judgment on the plaintiff’s defamation claim
because the alleged defamatory statements were pro-
tected under either the fair report privilege or the sub-
stantial truth doctrine.10 Moreover, the court held that,
‘‘[b]ecause Ormseth’s affirmative representation was
true, because he had no duty to tell the plaintiff he
would be the subject of [the defendant’s] article, and
because the plaintiff had no legal right to interfere with
the [defendant’s] publication of a story about him, the
[defendant] is entitled to summary judgment on’’ the
plaintiff’s intentional misrepresentation claim. Follow-
ing the court’s rendering of summary judgment, on
August 12, 2021, the plaintiff filed a motion to reargue.
The court denied that motion on September 8, 2021.
This appeal followed. Additional facts and procedure
will be set forth as necessary.
On appeal, the plaintiff claims that the trial court
erred in (1) concluding that the fair report privilege
provided grounds for granting summary judgment on
the plaintiff’s defamation claims, and (2) granting sum-
mary judgment on the plaintiff’s intentional misrepre-
sentation claim.
We begin by setting forth the applicable standard of
review. ‘‘Our review of a trial court’s decision to grant a
motion for summary judgment is well settled. Summary
judgment shall be rendered forthwith if the pleadings,
affidavits and any other proof submitted show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.
. . . In deciding a motion for summary judgment, the
trial court must view the evidence in the light most
favorable to the nonmoving party. . . . Although the
party seeking summary judgment has the burden of
showing the nonexistence of any material fact . . . a
party opposing summary judgment must substantiate
its adverse claim by showing that there is a genuine
issue of material fact together with the evidence disclos-
ing the existence of such an issue. . . . It is not enough,
however, for the opposing party merely to assert the
existence of such a disputed issue. Mere assertions of
fact . . . are insufficient to establish the existence of
a material fact and, therefore, cannot refute evidence
properly presented to the court [in support of a motion
for summary judgment]. . . . Our review of the trial
court’s decision to grant [a] motion for summary judg-
ment is plenary.’’ (Citation omitted; internal quotation
marks omitted.) Elder v. 21st Century Media Newspa-
per, LLC, 204 Conn. App. 414, 420, 254 A.3d 344 (2021).
‘‘[T]he determination of whether the contents of a news-
paper article are privileged as fair reporting is an issue
of law over which we exercise plenary review.’’ (Inter-
nal quotation marks omitted.) Id., 424.
With these principles in mind, we address the plain-
tiff’s claims in turn.
I
The plaintiff first claims that the court erred in grant-
ing the defendant’s motion for summary judgment as
to the plaintiff’s defamation claims on the basis that
the fair report privilege protected the defendant from
liability for statements made in the two September 5,
2018 articles. We disagree.
‘‘The fair report privilege is well established. The
publication of defamatory matter concerning another
in a report of an official action or proceeding or of a
meeting open to the public that deals with a matter of
public concern is privileged if the report is accurate
and complete or a fair abridgement of the occurrence
reported. . . . If the report is accurate or a fair abridg-
ment of the proceeding, an action cannot constitution-
ally be maintained for defamation. . . . The privilege
exists even though the publisher himself does not
believe the defamatory words he reports to be true,
and even when he knows them to be false and even if
they are libel per se.’’ (Citation omitted; internal quota-
tion marks omitted.) Id., 422. ‘‘Abuse of the privilege
takes place, therefore, when the publisher does not give
a fair and accurate report of the proceeding.’’ Id.
The plaintiff argues that the defendant abused the
fair report privilege in its publication of (1) the state-
ment that DPH had been investigating the plaintiff for
two years, and (2) the headline ‘‘State Probes Terryville
Dentist for Excessive Work on Children’s Teeth.’’11
A
The plaintiff first claims that the defendant abused
the fair report privilege by using the word ‘‘investiga-
tion’’ to describe the DPH complaint and resulting pro-
ceedings and by stating that the ‘‘investigation’’ spanned
two years.
‘‘[T]he fair reporting privilege requires the report to
be accurate. It is not necessary that it be exact in every
immaterial detail or that it conform to that precision
demanded in technical or scientific reporting. It is
enough that it conveys to the persons who read it a
substantially correct account of the proceedings . . . .
The accuracy required is to the proceedings, not to the
objective truth of the [alleged] defamatory charges.
. . . Further, the fair report privilege affords leeway to
an author who attempts to recount and popularize an
. . . event. . . . The author’s job is not simply to copy
statements verbatim, but to interpret and rework them
into the whole. . . . A fussy insistence upon literal
accuracy would condemn the press to an arid, desic-
cated recital of bare facts. . . . [T]he author of a news
article reporting on a judicial decision has no duty to
conduct an impartial investigation of the underlying
facts of the case—[t]he only question is whether the
news article represents a substantially accurate report
of the court decision upon which it is reporting.’’ (Cita-
tions omitted; internal quotation marks omitted.) Id.,
424.
In the present case, it was substantially accurate for
the defendant to state that DPH had engaged in an
investigation of the plaintiff. The court rejected the
plaintiff’s argument that use of the word ‘‘investigation’’
was misleading and, in its memorandum of decision,
noted that ‘‘any potential ambiguity raised by using the
word ‘investigation’ instead of the word ‘proceeding’
was avoided by the substance of what the [defendant]
accurately reported.’’ The defendant adopts the court’s
rationale on appeal and additionally highlights that ‘‘a
letter from DPH to the Connecticut Children’s Medical
Center dated May 26, 2016, [referenced] the petition
against the plaintiff . . . and [stated] that DPH is con-
ducting ‘an investigation. . . .’ ’’ The letter was
attached as an exhibit to Ormseth’s supplemental affida-
vit, filed with approval from the court on April 21, 2021.
Although ‘‘investigation’’ may give rise to more insidi-
ous implications than the word ‘‘proceedings,’’ the
defendant owes no duty to the plaintiff to use the exact
word used by the official as long as the word it chooses
is a substantially accurate report of official proceedings.
Elder v. 21st Century Media Newspaper, LLC, supra,
204 Conn. App. 428. To that end, DPH’s use of the word
‘‘investigation’’ to describe the proceedings in its May
26, 2016 letter supports the accuracy of its use in the
article. Further, if describing the proceedings before
the commission as an ‘‘investigation’’ strayed from the
truth of the matter, it did so only slightly, and well within
the leeway afforded to reporters of official matters of
public concern. See id., 427 (holding fair report privilege
applicable where defendant newspaper used the word
‘‘impersonating’’ rather than ‘‘misidentifying himself’’
because it was a ‘‘miniscule [departure from fact] and
can be attributed to the leeway afforded an author who
attempts to recount and popularize an . . . event’’
(internal quotation marks omitted)).
Turning to the ‘‘two-year’’ designation used in the
first article, in its memorandum of decision, the court
noted the relevant timeline of the proceedings: ‘‘The
underlying incident occurred in April, 2016, the DPH
complaint was filed in September, 2017, and the [com-
mission’s] decision was issued two years later.’’ The
plaintiff does not dispute this timeline on appeal.
Therefore, because the defendant’s statement regard-
ing DPH’s two year investigation was a fair and accurate
abridgement, the fair report privilege applies as a matter
of law and shields the defendant from liability for defa-
mation as to this statement.
B
The plaintiff also claims that the defendant abused
the fair report privilege by using the word ‘‘children’’
rather than the singular ‘‘child’’ in the headline of the
first article.12 The court held that the headline was not
an abuse of the fair report privilege, reasoning: ‘‘The
plaintiff first complains about the headline of the first
article, ‘State Probes Terryville Dentist for Excessive
Work on Children’s Teeth.’ He argues the headline con-
veyed a message that the state’s inquiry extended
beyond the three year old patient that was the subject of
the underlying complaint. The article is clear, however,
that the case involved only one child. The report is
accurate overall and any technical inaccuracy in the
headline is not sufficient to make the report actionable.’’
We agree with the court that the headline was accu-
rate overall and that any imprecision therein was amel-
iorated by the accuracy of the article’s abridgement
of the proceedings. See Elder v. 21st Century Media
Newspaper, LLC, supra, 204 Conn. App. 424 (‘‘[a] fussy
insistence upon literal accuracy would condemn the
press to an arid, desiccated recital of bare facts’’ (inter-
nal quotation marks omitted)).
On the basis of the foregoing, we conclude as a matter
of law that the defendant did not abuse the fair report
privilege by publishing the statement about DPH’s
investigation into the plaintiff or by its use of the word
‘‘children’’ in the headline of the first article. Therefore,
the court properly rendered summary judgment on the
plaintiff’s defamation claim.
II
The plaintiff next claims that the court erred in ren-
dering summary judgment on his intentional misrepre-
sentation claim. The plaintiff argues specifically that
the court improperly ‘‘weighed the plaintiff’s evidence
against the plaintiff in favor of the [defendant] and drew
inference[s] from the plaintiff’s evidence in favor of the
[defendant].’’13 We disagree.
As stated previously herein, ‘‘[o]ur review of the trial
court’s decision to grant [a] motion for summary judg-
ment is plenary.’’ Elder v. 21st Century Media Newspa-
per, LLC, supra, 204 Conn. App. 420. ‘‘In deciding a
motion for summary judgment, the trial court must view
the evidence in the light most favorable to the nonmov-
ing party.’’ (Internal quotation marks omitted.) Id.‘‘When the evidence in a summary judgment record
reasonably is susceptible to competing inferences, it is
improper for a trial court, in ruling on the summary
judgment motion, to choose among those inferences.’’
Doe v. West Hartford, 328 Conn. 172, 197–98, 177 A.3d
1128 (2018).
In rendering summary judgment on the plaintiff’s
intentional misrepresentation claim, the court stated:
‘‘From the evidence submitted by the plaintiff it appears
dentist. The plaintiff has submitted evidence that the
article Ormseth was preparing did include reporting
about another dentist, as described, in a practice that
was partially owned by the plaintiff. According to the
[defendant’s] September 4, 2018 internal . . . email
submitted by the plaintiff in opposition to the [defen-
dant’s] motion, [an editor for the defendant] eliminated
the portions of the draft article that concerned the other
dentist. The plaintiff’s evidence establishes that Orm-
seth’s statement that he was working on an article about
another dentist was true, not false.
‘‘The factual dispute between the parties is whether
Ormseth told the plaintiff he was writing an article
about him. Ormseth says he did; the plaintiff says he
did not. But the affirmative representation relied upon
by the plaintiff, that Ormseth was working on a story
about another dentist, is an accurate statement. Assum-
ing Ormseth said he was working on a story concerning
the other dentist without mentioning that the plaintiff
was also a subject of the story, Ormseth may have
allowed the plaintiff to believe the story would not be
about him, without actually saying so. . . . Because
Ormseth’s affirmative representation was true, because
he had no duty to tell the plaintiff he would be the
subject of [an] article [by the defendant], and because
the plaintiff had no legal right to interfere with the
[defendant’s] publication of a story about him, the
[defendant] is entitled to summary judgment on’’ the
plaintiff’s claim for intentional misrepresentation.
(Emphasis in original.)
The plaintiff argues that the court improperly
engaged in fact finding by stating the following: ‘‘The
plaintiff’s purpose in submitting [the defendant’s inter-
nal email exchange] was to corroborate his claim that
Ormseth told him he was preparing an article about
another dentist. Viewed slightly differently, however,
the evidence also reflects that Ormseth was truthful
when he told the plaintiff he was working on an article
about another dentist. The plaintiff’s complaint is that
Ormseth omitted any mention of the fact that the plain-
tiff would also be the subject of the article.’’14
The flaws in the plaintiff’s argument are manifold,
but, most crucially, the court never chose between com-
peting interpretations of fact. As the court properly
held, Ormseth’s affirmative statement to the plaintiff—
that he was working on an article about another den-
tist—is apparently true as evidenced by the plaintiff’s
own affidavit and evidence, thus defeating any claim
of intentional misrepresentation.15 See Dickau v. Min-
grone, 196 Conn. App. 59, 66 n.7, 229 A.3d 479 (2020)
(listing as required element of intentional misrepresen-
tation that false statement be made as statement of
fact). We conclude that the court did not impermissibly
weigh evidence or choose between competing infer-
ences. We further conclude that the court properly
granted the defendant’s motion for summary judgment
as to the intentional misrepresentation claim.16
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff’s complaint alleged ‘‘deceitful misrepresentation,’’ which
the trial court construed as a claim of intentional misrepresentation. The
plaintiff also purported to assert claims for negligent infliction of emotional
distress and gross negligence. The court, identifying that those claims arose
from the same underlying facts as the plaintiff’s defamation claim, granted
summary judgment on those two claims on the same ground as the plaintiff’s
defamation claim. The plaintiff has not challenged this aspect of the court’s
judgment on appeal.
2
As a result of the first proceeding, the plaintiff signed a consent order
in which he admitted to prescribing medications to himself and family
members outside the scope of dentistry, which required that the plaintiff
pay a $2000 civil penalty to the state and waive his right to a hearing on
the merits of the matter.
3
General Statutes § 4-179 provides in relevant part: ‘‘(a) When, in an
agency proceeding, a majority of the members of the agency who are to
render the final decision have not heard the matter or read the record, the
decision, if adverse to a party, shall not be rendered until a proposed final
decision is served upon the parties, and an opportunity is afforded to each
party adversely affected to file exceptions and present briefs and oral argu-
ment to the members of the agency who are to render the final decision.
‘‘(b) A proposed final decision made under this section shall be in writing
and contain a statement of the reasons for the decision and a finding of
facts and conclusion of law on each issue of fact or law necessary to the
decision, including the specific provisions of the general statutes or of
regulations adopted by the agency upon which the agency bases its find-
ings. . . .’’
4
The panel consisted of two dentists and a registered nurse, all of whom
were commissioners on the commission.
5
Smile by Design was a dental practice that was co-owned by the plaintiff.
6
The parties do not dispute that the image included in the article does
not depict the plaintiff or the patient.
7
‘‘On September 10, 2018, the plaintiff appealed to the Superior Court.
. . . After briefing by the parties and oral argument, on January 7, 2020,
the court issued an order remanding the final decision for clarification of
[a] finding [of fact] . . . . [A panel of commissioners] heard this issue on
remand and issued a new proposed final decision, finding, inter alia, that
‘the use of stainless steel crowns was not justified, and [that the plaintiff]
practiced below the standard of care in using eight stainless steel crowns.’
. . . On June 16, 2020, the commission issued a second final decision, this
time determining that it was not a violation of the standard of care to place
eight stainless steel crowns in the patient’s mouth, but that the disciplinary
orders contained in the initial decision were still appropriate on the basis
of the other findings concerning the allegations against the plaintiff.
‘‘On August 10, 2020, the court issued a second remand order related to
the same charge. Specifically, the court ordered the commission to reconcile
an inconsistency between the finding of fact that the plaintiff ‘did not practice
below the standard of care with respect to the placement of the stainless
steel crowns’ with a statement in its decision that ‘the [department] sustained
its burden of proof’ with respect to this charge. . . . On September 16,
2020, the commission issued a third and final decision . . . . The final
decision stated that, ‘[w]ith regard to the allegations . . . of the charges
that [the plaintiff] placed one or more crowns without adequate justification
. . . the department did not sustain its burden of proof.’ ’’ Idlibi v. State
Dental Commission, 212 Conn. App. 501, 511–12, 275 A.3d 1214, cert. denied,
345 Conn. 904, 282 A.3d 980 (2022). The final decision sustained the origi-
nal sanctions.
The plaintiff appealed the final decision, and ‘‘[o]n October 13, 2020, the
court issued a written decision dismissing the plaintiff’s appeal.’’ Id., 513.
This court subsequently affirmed the court’s dismissal of the plaintiff’s
appeal. Id., 532.
8
See footnote 1 of this opinion.
9
On the same day, the plaintiff filed a supplemental affidavit in which he
asserted that Ormseth ‘‘assured [the plaintiff] that he was writing a story
about another dentist from’’ the plaintiff’s practice. In support of that asser-
tion, the plaintiff attached an email chain between Ormseth and a senior
editor for the defendant to his supplemental affidavit. The email contained
a draft of the article that included reference to a dentist other than the
plaintiff. However, in their email correspondence, the senior editor notified
Ormseth that he removed the sections referencing the other dentist.
10
The court concluded that the statistic—regarding the number of crowns
placed on children under general anesthesia and insured by Medicaid—was
not protected by the fair report privilege but was nonetheless exempt from
liability for defamation because it was substantially true. The court held
that the remaining allegedly defamatory statements identified by the plaintiff
in his memorandum in opposition to summary judgment were protected by
the fair report privilege.
11
Although the plaintiff identified five allegedly defamatory statements in
his objection to the motion for summary judgment, in this appeal he focuses
on only three of those statements. Specifically, on appeal, the plaintiff does
not rely on the statements referring to the plaintiff’s actions as ‘‘medically
unsound’’ or his prescription of medications outside the scope of dentistry.
These aspects of the claim raised before the trial court are therefore deemed
abandoned. See Goshen Mortgage, LLC v. Androulidakis, 205 Conn. App.
15, 35 n.15, 257 A.3d 360 (‘‘arguments [that] have not been advanced on
appeal . . . are deemed abandoned’’), cert. denied, 338 Conn. 913, 259 A.3d
653 (2021).
The plaintiff also claims, for the first time on appeal, that the defendant’s
publication of a particular image in both articles constituted an abuse of
the fair report privilege because it was ‘‘a misleading picture of a child
undergoing invasive [dental] implants’’ and was unrelated to the proceedings.
Although the plaintiff referenced the image before the trial court in several
pleadings and at the summary judgment hearing, he never did so in further-
ance of a distinct argument that the picture itself abused the fair report
privilege, as he now does on appeal. Because this issue was not distinctly
raised before, or decided by, the trial court, it is not properly before us now.
Elder v. 21st Century Media Newspaper, LLC, supra, 204 Conn. App. 421.
Additionally, the plaintiff claims that the defendant abused the fair report
privilege by using a DSS statistic ‘‘unrelated to the official proceeding.’’
However, the court held that the fair report privilege did not apply to
this statement—instead holding that it was substantially true: ‘‘A statement
procured from a public official by a reporter working on a story does not
appear to fall within the scope of the fair report privilege, which applies
only to an official action or proceeding or of a meeting open to the public.
. . . Nevertheless, the statement as reported by the [defendant] was substan-
tially true and therefore not actionable.’’ (Citation omitted; internal quotation
marks omitted.) Therefore, to the extent that the plaintiff claims that the
use of the DSS statistic was an abuse of the fair report privilege, such claim
is moot. State v. Lester, 324 Conn. 519, 526–27, 153 A.3d 647 (2017) (claim
is moot where appellant fails to challenge basis of trial court’s adverse
ruling). We further note that the plaintiff fails to sufficiently brief his argu-
ment that the DSS statistic was not substantially true. Accordingly, we
decline to review this claim. See Starboard Fairfield Development, LLC v.
Gremp, 195 Conn. App. 21, 31, 223 A.3d 75 (2019) (‘‘[b]ecause we conclude
that the defendants have failed to adequately brief this claim, we decline
to review it’’).
12
The plaintiff also claims that the headline of the first article, as well as
other statements made by the defendant, indicate malice and that the court
erroneously held that the privilege applied regardless of malice. In response
to the plaintiff’s September 23, 2021 motion for articulation, the court stated
that it ‘‘did not reach the plaintiff’s allegations of malice . . . in rendering
its decision on summary judgment. The fair report privilege applies even
assuming, arguendo, the plaintiff could prove those allegations.’’ Quoting
Elder v. 21st Century Media Newspaper, LLC, supra, 204 Conn. App. 422,
the court concluded that ‘‘[t]he privilege exists even though the publisher
himself does not believe the defamatory words he reports to be true, and
even when he knows them to be false and even if they are libel per se.’’
(Internal quotation marks omitted.) Because we agree with the court that
the fair report privilege applies in the present case, the plaintiff’s malice
argument fails as a matter of law. See id.13
The plaintiff also claims that the ‘‘court erroneously ruled that the
plaintiff’s claim of fraudulent misrepresentation cannot be sustained because
Ormseth does not have the duty to speak, i.e., to disclose to the plaintiff,
that Ormseth was writing a story about the plaintiff. The court overlooks
the plaintiff’s claim that the plaintiff had the right to remain silent and not
to speak to Ormseth or to any member of the press.’’ However, the plaintiff
does not cite to any relevant authority in support of this argument. Because
we conclude that the plaintiff has failed to adequately brief this claim, we
decline to review it. Starboard Fairfield Development, LLC v. Gremp, supra,
195 Conn. App. 31.
Insofar as the plaintiff intended for this argument to challenge the court’s
alternative grounds for rendering summary judgment—that the plaintiff was
actually alleging fraud by omission and failed because ‘‘he had no legal right
to know the [defendant] was writing an article about him’’—that argument
is inadequately briefed and we decline to review it. Id.14
Additionally, the plaintiff suggests that the court could not use evidence
submitted in the plaintiff’s affidavit in support of its decision to render
summary judgment. The court was permitted, however, under Practice Book
§ 17-49, to consider the email attached to the plaintiff’s affidavit in rendering
summary judgment. See Salamone v. Wesleyan University, 210 Conn. App.
435, 443, 270 A.3d 172 (2022) (‘‘Practice Book § [17-49] provides that sum-
mary judgment shall be rendered forthwith if the pleadings, affidavits and
any other proof submitted show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter
of law’’).
15
The court additionally construed the plaintiff’s claim as one of fraud
by omission. The court concluded that the plaintiff had no legal right to
know the defendant was writing an article about him and, therefore, could
not sustain a claim of fraud by omission. On appeal, the plaintiff asserts
that he had a right to not talk to Ormseth but does not otherwise challenge
this aspect of the court’s conclusion. See footnote 13 of this opinion.
16
The plaintiff claims that the court erred in denying his motion to reargue.
On the basis of our discussion herein, we conclude that the court did not
abuse its discretion in denying reargument on the plaintiff’s defamation and
intentional misrepresentation claims. See JPMorgan Chase Bank, N.A. v.
Eldon, 144 Conn. App. 260, 277, 73 A.3d 757 (‘‘The standard of review for
a court’s denial of a motion to reargue is abuse of discretion. . . . When
reviewing a decision for an abuse of discretion, every reasonable presump-
tion should be given in favor of its correctness. . . . As with any discretion-
ary action of the trial court . . . the ultimate [question for appellate review]
is whether the trial court could have reasonably concluded as it did.’’ (Inter-
nal quotation marks omitted.)), cert. denied, 310 Conn. 935, 79 A.3d 889(2013).