author:
GRUENDEL, J.
      BERDON, J.,

text:
    DEPARTMENT OF PUBLIC SAFETY v. FREEDOM OF INFORMATION COMMISSION ET AL.
    (AC 27850)
    McLachlan, Gruendel and Berdon, Js.

      Argued April 25
    officially released September 4, 2007

      LynnD. Wittenbrink, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellant (plaintiff).

      Mary E. Schwind, director of adjudication, with whom, on the brief, was Colleen M. Murphy, general counsel, for the appellee (named defendant).
   Opinion

GRUENDEL, J.

The doctrine of mootness holds that before a claimed controversy is entitled to adjudication on the merits, it must be demonstrated that an actual controversy exists. In this appeal, we are asked to decide what role, if any, that doctrine plays in proceedings before the defendant freedom of information commission (commission). The plaintiff, the department of public safety, appeals from the judgment of the trial court dismissing its appeal from the decision of the commission, which granted the request of a newspaper reporter to inspect certain police records. We reverse the judgment of the trial court.

The court’s memorandum of decision reveals the following undisputed facts. “On January 5,2004, a newspaper reporter for the New Haven Register, Michelle Tuccitto . . . requested records from the plaintiff . . . regarding an investigation into a triple homicide; however, Tuccitto was told that disclosure of the records would be prejudicial to the pending prosecution, by compromising the jury selection process and tainting witness recollection, and her request was promptly denied by a letter dated January 6, 2004. . . . Following the denial of her request, Tuccitto filed a formal complaint with the . . . commission on January 16, 2004. ... On May 11, 2004, a hearing was held before a hearing officer for the commission. . . . The hearing officer issued a proposed final decision dated September 7, 2004, adverse to the [plaintiff]; the decision recommended that ‘[t]he [plaintiff] shall forthwith provide [Tuccitto and the New Haven Register] with access to inspect the requested records, other than signed statements of witnesses.’ . . . Following the issuance of the hearing officer’s proposed final decision [but before the commission’s hearing thereon], Tuccitto sent a letter to the commission dated October 9, 2004, stating that ‘the state police on [October 6, 2004] provided [her] with copies of the information [she] requested. Therefore, the commission hearing scheduled ... on [her] complaint and any further action are no longer necessary.’ . . .

“On October 27, 2004, at a regular meeting of the commission [at which] a representative of the [plaintiff] was present, but Tuccitto and the New Haven Register were not, the commission entertained the objection of the [plaintiff] to the entry of a final decision by the commission. . . . Specifically, the [plaintiff] argued that since the parties had resolved the matter, there was no contested case before the commission, and therefore the commission was without jurisdiction or simply unauthorized by the General Statutes to enter a final order. . . . Nevertheless, the presiding officer of the commission stated: ‘I find that we do have jurisdiction. There was a contested hearing, there was a finding at the contested hearing, and the purpose of the session today is to accept, reject or modify that report. No new evidence comes before us for the purposes of this hearing. It becomes part of the archives here and part of the precedential material that other persons may consider in the future, and so I’m ruling against [the plaintiff] on jurisdiction.’ . . . The commission voted to accept the proposed final order of the hearing officer. ... By a letter dated November 3, 2004, the commission sent notice to the parties of the final decision.” (Citations omitted.) From that judgment, the plaintiff appealed to the Superior Court pursuant to General Statutes §§ 1-206 (d) and 4-183 (a). By memorandum of decision filed June 26, 2006, the court dismissed the plaintiffs appeal, and this appeal followed.

I

The plaintiff first claims that the court applied an improper standard to its administrative appeal. Our review of that question of law is plenary. See Hartford Courant Co. v. Freedom of Information Commission, 261 Conn. 86, 96-97, 801 A.2d 759 (2002).

In its complaint, the plaintiff averred that the commission lacked jurisdiction to render a final decision “as there was no contested case before the [c]ommission for it to rule upon . . . .” In its memorandum of decision, the court acknowledged that “[w]hile ‘contested case’ status has been established as a prerequisite for Superior Court subject matter jurisdiction . . . the [plaintiff] now asks that this same requirement be placed on proceedings before the commission.” (Citation omitted.) In resolving that issue, the court applied the deferential standard of review generally governing administrative appeals. We agree with the plaintiff that application of that standard was improper.

The plaintiffs appeal involved a question of first impression, namely, whether the commission is statutorily authorized to issue a final decision on a matter when, following a hearing thereon, it is informed by the plaintiff that the matter no longer is contested. In essence, the plaintiff claimed that the matter was moot, thereby depriving the commission of jurisdiction. The commission concedes that legal question has not been subject to judicial scrutiny previously. Therefore, its determination is not entitled to any deference. See Raymond v. Freedom of Information Commission, 75 Conn. App. 142, 149, 815 A.2d 226 (2003). “[I]t is for the courts, and not administrative agencies, to expound and apply governing principles of law.” (Internal quotation marks omitted.) Southern New England Telephone Co. v. Dept. of Public Utility Control, 274 Conn. 119, 127, 874 A.2d 776 (2005); see also National Labor Relations Board v. Brown, 380 U.S. 278, 291, 85 S. Ct. 980, 13 L. Ed. 2d 839 (1965). “[A] determination regarding [an agency’s] subject matter jurisdiction is a question of law . . . .” (Internal quotation marks omitted.) Rweyemamu v. Commission on Human Rights & Opportunities, 98 Conn. App. 646, 650, 911 A.2d 319 (2006), cert. denied, 281 Conn. 911, 916 A.2d 51 (2007). Accordingly, the plaintiffs administrative appeal properly is reviewed under the plenary standard.

II

The plaintiff claims that the commission lacked jurisdiction to issue a final decision once Tuccitto notified the commission that the plaintiff had provided her with copies of the requested records and she requested that no further action be taken thereon. “Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong. ... A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy. . . . This concept, however, is not limited to courts. Administrative agencies . . . are tribunals of limited jurisdiction and their jurisdiction is dependent entirely upon the validity of the statutes vesting them with power . . . .” (Internal quotation marks omitted.) Figueroa v. C & S Ball Bearing, 237 Conn. 1, 4, 675 A.2d 845 (1996). As our Supreme Court has explained, “certain jurisdictional facts are essential to establish the statutory jurisdiction of tribunals of limited authority. The existence of these facts is fundamental to the power to entertain and adjudicate a proceeding on the merits. In short, such facts condition the power to act.” (Internal quotation marks omitted.) Stern v. Medical Examining Board, 208 Conn. 492, 502, 545 A.2d 1080 (1988). Resolution of the plaintiffs claim, therefore, requires an examination of the relevant statutory provisions governing the commission.

The commission is entirely a creature of statute. See General Statutes § 1-205. It operates within the confines of the Freedom of Information Act (act); General Statutes § 1-200 et seq.; and the complementary rules of the Uniform Administrative Procedure Act, General Statutes § 4-166 et seq. General Statutes § 1-206 (b) (1) provides in relevant part that “[a]ny person denied the right to inspect or copy records ... of a public agency . . . may appeal therefrom to the [commission], by filing a notice of appeal with said commission. . . . Said commission shall, after due notice to the parties, hear and decide the appeal within one year after the filing of the notice of appeal. ...” Likewise, General Statutes § 4-180 (a) provides that “[e]ach agency shall proceed with reasonable dispatch to conclude any matter pending before it and, in all contested cases, shall render a final decision within ninety days following the close of evidence or the due date for the filing of briefs, whichever is later, in such proceedings.” (Emphasis added.)

The General Assembly has defined a “contested case” as “a proceeding ... in which the legal rights, duties or privileges of a party are required by state statute or regulation to be determined by an agency after an opportunity for hearing or in which a hearing is in fact held . . . .” General Statutes § 4-166 (2). Our Supreme Court repeatedly has stated that the “test for determining contested case status has been well established and requires an inquiry into three criteria, to wit: (1) whether a legal right, duty or privilege is at issue, (2) and is statutorily required to be determined by the agency, (3) through an opportunity for hearing or in which a hearing is in fact held.” Herman v. Division of Special Revenue, 193 Conn. 379, 382, 477 A.2d 119 (1984); see also Fairfield v. Connecticut Siting Council, 238 Conn. 361, 369, 679 A.2d 354 (1996); Summit Hydropower Partnership v. Commissioner of Environmental Protection, 226 Conn. 792, 800-801, 629 A.2d 367 (1993).

A

The first question to be resolved is whether the commission was statutorily authorized to issue a final decision in light of the procedural history of this appeal. We conclude that it was not.

Tuccitto’s January 16, 2004 letter to the commission informed the commission that her legal right to inspect the requested records was at issue, and a hearing before a hearing officer followed. Subsequent to those events, the plaintiff furnished Tuccitto with copies of the requested records. By letter dated October 9, 2004, Tuc-citto notified the commission that the plaintiff “provided [her] with copies of the information [she] requested. Therefore, the commission hearing ... on [her] complaint and any further action are no longer necessary.” In short, she informed the commission that no issue regarding access to the requested information remained.

Pursuant to § 4-180 (a), the commission is required to render final decisions in all contested cases. The contested case test requires, inter alia, that Tuccitto’s legal right “is at issue . . . .” Herman v. Division of Special Revenue, supra, 193 Conn. 382. Her October 9, 2004 letter notified the commission that no issue remained concerning her access to the requested information. Plainly, the case no longer was contested. Without a contested case, the commission was not statutorily permitted to issue a final decision.

Tuccitto’s October 9, 2004 letter effectively withdrew her complaint to the commission. Pursuant to General Statutes § 4-177 (c), “[u]nless precluded by law, a contested case may be resolved by stipulation, agreed settlement, or consent order or by the default of a party.” Section l-21j-39 of the Regulations of Connecticut State Agencies, titled in part, “Uncontested disposition of complaint,” likewise permits that “[u]nless precluded by law, where any matter is uncontested, a complaint, application or petition may be resolved by stipulation, agreed settlement, consent order, dismissal, administrative withdrawal without hearing or default. . . .” While acknowledging that Tuccitto’s letter both informed it that the plaintiff had provided Tuccitto with copies of the requested information and requested that it take no further action on her complaint, the commission nevertheless maintains that Tuccitto never formally withdrew her complaint or submitted a formal settlement. That argument is disingenuous. Tuccitto attempted to withdraw her complaint in precisely the same manner in which she commenced it, through written letter to the commission. Having accepted and acted on her letter to begin its inquiry, the commission cannot now complain that Tuccitto’s subsequent written communication lacked the requisite formality.

Even in the face of a formal withdrawal or settlement, the commission argues that it retains discretion as to whether it shall issue a final decision in a given matter. It refers to the language of § 4-177 (c) and § 1-21J-39 of the Regulations of Connecticut State Agencies indicating that a contested case “may” be resolved via such procedures. “The word ‘may,’ unless the context in which it is employed requires otherwise, ordinarily does not connote a command. Rather, the word generally imports permissive conduct and the conferral of discretion.” Commission on Human Rights & Opportunities v. Truelove & Maclean, Inc., 238 Conn. 337, 349, 680 A.2d 1261 (1996). The commission’s argument amounts to an end run around the contested case requirement. The commission is required to issue a final decision only in contested cases. General Statutes § 4-180 (a). Withdrawal, settlement and the like as provided in § 4-177 (c) and § 1-21J-39 of the Regulations of Connecticut State Agencies all present situations in which the matter before the commission no longer is contested. Thus, given that particular context, we conclude that the aforementioned language does not impart on the commission the discretion to issue a final decision in an uncontested case.

Instructive is this court’s decision in Horn v. Freedom of Information Commission, 16 Conn. App. 49, 547 A.2d 56 (1988). In that case, an employee of the department of correction filed a complaint with the commission in which he requested access to his personnel file. Id., 51. As we stated, “[f]ollowing the hearing before the [commission’s] hearing officer but before the [commission] issued its final decision,” the employee settled his dispute with the department of correction. Id. Despite that settlement, which we noted was “part of the administrative record before the [commission] at the time of its final decision”; id.; the commission proceeded to issue a final decision in which it found a violation of the act and entered certain orders against the plaintiff. Id., 51-52. On appeal, we concluded that the commission’s action was improper: “The [commission’s] order at issue directly conflicted with, and had the effect of setting aside, a voluntary and mutual resolution of a dispute between two parties regarding a sanction to be imposed upon one of the parties. The order did not vindicate any interest of [the complainant], who had resolved his grievance with his employer. . . . The [commission’s] interference with this favored means of settling differences . . . was unwarranted.” (Citations omitted; internal quotation marks omitted.) Id., 53.

In the present case, the plaintiff and Tuccitto reached an agreement following the hearing, but before the commission issued its final decision. Tuccitto subsequently informed the commission that she had received the requested records and asked that no further action be taken on her complaint. The supplemental record filed by the commission expressly indicates that Tuccitto’s October 9, 2004 letter was part of the administrative record before the commission at the time of its final decision. As in Horn, the commission’s final decision did not vindicate any interest of Tuccitto, who had already resolved the matter with the plaintiff. In that respect, it bears mentioning that the legal right at issue in any given complaint to the commission belongs to the complainant, not the commission. It is the complainant’s interest that the commission is tasked with vindicating, not its own. The ultimate aim is the disclosure of requested information. Here, that aim was accomplished prior to the commission’s issuance of a final decision.

The commission also presents a novel interpretation of the contested case requirement, urging that it is free to issue a final decision as long as the matter was contested at the time a hearing was held. We perceive two problems with that reading. First, our case law is clear that whether, in fact, a hearing is held is not the determinative factor. “If a hearing is not statutorily mandated, even if one is gratuitously held, a ‘contested case’ is not created.” Dadiskos v. Connecticut Real Estate Commission, 37 Conn. App. 777, 782, 657 A.2d 717 (1995); see also Lewis v. Gaming Policy Board, 224 Conn. 693, 704-705, 620 A.2d 780 (1993) (“[although an agency rule, policy or regulation may require a hearing, that hearing will not qualify the proceedings as a contested case unless the agency is statutorily required to determine the legal rights or privileges of the party aggrieved in that proceeding”); Canterbury v. Rocque, 78 Conn. App. 169, 174, 826 A.2d 1201 (2003) (“[t]he question [of whether the agency was required to determine the legal rights of a party] is not answered simply by reference to the fact that a hearing was, indeed, held”). Second, the commission’s interpretation asks us to rewrite the test for determining whether a contested case exists. Under its interpretation, we would ask not whether a legal right, duty or privilege is at issue; see Herman v. Division of Special Revenue, supra, 193 Conn. 382; but rather whether the legal right, duty or privilege was at issue when the hearing was held. We decline that invitation.

As a creature of statute, the jurisdiction of the commission necessarily is restricted by the legislation from which it originates. “Administrative agencies are tribunals of limited jurisdiction and their jurisdiction is dependent entirely upon the validity of the statutes vesting them with power and they cannot confer jurisdiction upon themselves.” Castro v. Viera, 207 Conn. 420, 428, 541 A.2d 1216 (1988); see also State v. State Employees’ Review Board, 231 Conn. 391, 406, 650 A.2d 158 (1994) (administrative agency possesses no inherent power; its authority “is found in a legislative grant, beyond the terms and necessary implications of which it cannot lawfully function”). “[A]gencies must . . . act according to the strict statutory authority”; State v. White, 204 Conn. 410, 419, 528 A.2d 811 (1987); and they “cannot modify, abridge or otherwise change the statutory provisions under which [they derive] authority . . . .” Waterbury v. Commission on Human Rights & Opportunities, 160 Conn. 226, 230, 278 A.2d 771 (1971). This court has neither been presented with nor found any authority indicating that, in the absence of a contested case, the commission nevertheless may issue a final decision in a particular matter. Most importantly, the General Statutes do not confer that jurisdiction on the commission. If the commission’s jurisdiction to issue a final decision is to be extended to situations involving uncontested cases, such extension remains the exclusive province of the legislature.

B

Our conclusion today is further buttressed by the doctrine of mootness, which holds that “[a] case becomes moot when due to intervening circumstances a controversy between the parties no longer exists.” (Internal quotation marks omitted.) Crest Pontiac Cadillac, Inc. v. Hadley, 239 Conn. 437, 439 n.3, 685 A.2d 670 (1996). The parties disagree as to whether that doctrine applies to proceedings before the commission.

In Domestic Violence Services of Greater New Haven, Inc. v. Freedom of Information Commission, 240 Conn. 1, 688 A.2d 314 (1997), our Supreme Court addressed the question of whether the doctrine of mootness deprived the commission of jurisdiction to render a final decision. In that case, the complainant filed a complaint with the commission seeking access to certain documents of the plaintiff, which subsequently provided the documents to the complainant. As the court recounted, “[although the documents were voluntarily furnished to the complainant, the [commission] nonetheless proceeded with a contested hearing to determine whether the plaintiff was a public agency. After deciding that the plaintiff was a public agency, the [commission] then found that the plaintiffs voluntary disclosure had been untimely and ordered the plaintiff, in the future, to comply promptly with other disclosure requests.” Id., 3. On appeal, the plaintiff argued that “because the documents had already been turned over to the complainant and, therefore, no practical relief could be granted on appeal”; id., 6; the matter was moot before the commission. For two reasons, our Supreme Court thought otherwise. First, promptness was an issue in that case, as the complainant had alleged that the documents were not provided to her within a reasonable time. Id., 7. Thus, the fact that the requested documents were voluntarily furnished to the complainant did not resolve the question of whether they were timely furnished to the complainant. Second, the court emphasized that the order issued by the commission was prospective in nature. Id., 8. The court referred to its prior decisions in Gifford v. Freedom of Information Commission, 227 Conn. 641, 649 n.9, 631 A.2d 252 (1993), and Glastonbury Education Assn. v. Freedom of Information Commission, 234 Conn. 704, 707 n.3, 663 A.2d 349 (1995), to support its conclusion that although the requested information was disclosed prior to the issuance of its final decision, the matter was not moot before the commission in light of the prospective nature of its order. For those two reasons, the court concluded that the controversy before the commission “was not moot.” Domestic Violence Services of Greater New Haven, Inc. v. Freedom of Information Commission, supra, 9.

Notably, our Supreme Court in Domestic Violence Services of Greater New Haven, Inc., did not declare the doctrine of mootness inapplicable to proceedings before the commission. To the contrary, it recited the tenets of that doctrine and, in analyzing the plaintiffs claim, explained why the doctrine did not apply under the facts of that case. That our Supreme Court in Domestic Violence Services of Greater New Haven, Inc., recognized that a particular controversy before the commission could be deemed moot informs our analysis of the issue before us. Furthermore, in Commission on Human Rights & Opportunities v. Board of Education, 270 Conn. 665, 855 A.2d 212 (2004), our Supreme Court noted that “[i]t is axiomatic that, when events have occurred that preclude a court from granting practical relief to a party through a disposition on the merits, the case is moot. . . . The same is ordinarily true of an administrative agency.” (Citation omitted; emphasis added.) Id., 684.

The commission argues that mootness is a judicial doctrine. The plaintiff responds by referring to several federal cases that discuss the similarity between administrative agencies and courts. See Federal Maritime Commission v. South Carolina State Ports Authority, 535 U.S. 743, 756, 122 S. Ct. 1864, 152 L. Ed. 2d 962 (2002) (administrative law judge functionally comparable to judge); Butz v. Economou, 438 U.S. 478, 512-13, 98 S. Ct. 2894, 57 L. Ed. 2d 895 (1978) (“adjudication within a federal administrative agency shares enough of the characteristics of the judicial process”); Thomas Sysco Food Services v. Martin, 983 F.2d 60, 62 (6th Cir. 1993) (concluding issue before administrative agency moot). The plaintiff additionally notes the similarity between judges and commission officers under Connecticut law. Pursuant to § 4-177b, “the presiding officer may administer oaths, take testimony under oath relative to the case, subpoena witnesses and require the production of records, physical evidence, papers and documents to any hearing held in the case. . . .” Likewise, § l-21j-8 of the Regulations of Connecticut State Agencies vests broad powers in the commission’s hearing officers. Hearing officers possess discretion to “exclude irrelevant, immaterial or unduly repetitious evidence” and to “take administrative notice of judicially cognizable facts, including generally recognized technical or scientific facts within the commission’s specialized knowledge and the records, decisions and orders in other commission cases. . . .” Regs., Conn. State Agencies § 1-21J-37 (a) and (d). They also must “give effect to the rules of privilege recognized by law in Connecticut where appropriate” and must recognize “the right of any party to cross examine . . . .” Id., § l-21j-37 (a). Although administrative bodies such as the commission patently are not courts, those similarities cannot completely be discounted.

The commission also cautions that application of the doctrine of mootness to proceedings before it would “thwart the process by which it creates and develops a body of case law.” That admonition is puzzling in light of the commission’s representation to this court that an individual decision of the commission has no prece-dential value in subsequent appeals before it. At oral argument, the commission repeatedly was asked whether its final decisions carry any precedential value. The commission responded in the negative, insisting that each case before the commission is decided on its specific facts. In addition, the commission routinely applauds parties that settle prior to the issuance of a final decision on the merits, despite the fact that such settlement ostensibly thwarts the development of commission case law.

The “overriding purpose” of the act is to encourage disclosure. Wiese v. Freedom of Information Commission, 82 Conn. App. 604, 612, 847 A.2d 1004 (2004). In the present case, disclosure of the requested information was accomplished prior to the issuance of a final decision. Both the complainant and the plaintiff informed the commission that they had resolved the matter. We see no good reason why, in such instances, the doctrine of mootness should not apply to proceedings before the commission. Application of that doctrine merely confirms that the commission is permitted to render final decisions only in contested cases. See General Statutes § 4-180 (a). We therefore conclude that when Tuccitto notified the commission that the requested records had been disclosed and requested that it take no further action on her complaint, the matter was moot.

The judgment is reversed and the case is remanded with direction to render judgment remanding the matter to the commission with direction to dismiss the complaint as moot.

In this opinion McLACHLAN, J., concurred.

BERDON, J.,

concurring. I concur in the result on the basis of the fact that this case is moot, which is the only issue I would reach. Because our Supreme Court previously has indicated that the doctrine of mootness is applicable to the defendant freedom of information commission (commission), I would not address the issues of statutory authorization or whether the trial court applied the proper standard of review.

In this case, the complaint filed by Michelle Tuccitto, a newspaper reporter for the New Haven Register, effectively was withdrawn when the plaintiff, the department of public safety, complied with Tuccitto’s request to inspect certain records. This compliance occurred after a hearing before a hearing officer for the commission, in which the officer recommended a proposed final decision to the commission that it issue a formal order allowing for inspection of the requested records. Upon receipt of the proposed final decision, Tuccitto notified the commission that she had been provided with the information she had requested, and that “the commission hearing scheduled ... on [her] complaint and any further action [were] no longer necessary.” “A case becomes moot when due to intervening circumstances a controversy between the parties no longer exists.” (Internal quotation marks omitted.) Crest Pontiac Cadillac, Inc. v. Hadley, 239 Conn. 437, 439 n.3, 685 A.2d 670 (1996). The case became moot when Tuccitto notified the commission that no further action was necessary because a controversy no longer existed between the parties. Notwithstanding this, the commission entered a formal order, as pointed out in the majority opinion.

In Domestic Violence Services of Greater New Haven, Inc. v. Freedom of Information Commission, 240 Conn. 1, 4, 688 A.2d 314 (1997), the plaintiff also provided the information requested after a complaint was filed with the commission. Notwithstanding the voluntary compliance, our Supreme Court found that the controversy was not moot because the complainant at the hearing claimed that the documents were not provided to her within a reasonable time and the order issued by the commission was prospective in nature, ordering the plaintiff to comply strictly with provisions of the Freedom of Information Act in the future. Id., 9. In the present case, no such claim was made by Tuccitto and no prospective order was issued by the commission.

I understand the concerns of the commission, as it argued before this court that this position on mootness would encourage an agency “to violate the [Freedom of Information Act] with impunity. An agency could withhold records, which are clearly not exempt and not turn them over until a proposed final decision is issued that is adverse to the agency. . . . [Furthermore] only a small body of administrative law interpreting the [Freedom of Information Act] would ever develop because the commission would issue few . . . final decisions adverse to public agencies.” The answer to these valid concerns, which I can fully appreciate, lies with the legislature.

I reluctantly concur in the result that this matter is moot.

       Although named as defendants in this action, Michelle Tuccitto and the New Haven Register are not parties to this appeal.

       The commission’s final decision contained the following order: “The [plaintiff] shall forthwith provide [Tuccitto and the New Haven Register] with access to inspect the requested records, other than signed statements of witnesses.”

       The court stated: “Judicial review of [the commission’s] action is governed by the Uniform Administrative Procedure Act . . . General Statutes § 4-166 et seq., and the scope of that review is limited. ... A court must not retry a case or substitute its own judgment for that of the [commission], . . . The court’s ultimate duty is only to decide whether, in light of the evidence, the [commission] has acted unreasonably, arbitrarily, illegally, or in abuse of [its] discretion. . . . Furthermore, [conclusions of law reached by the [commission] must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts.” (Citations omitted; internal quotation marks omitted.)

       Writing for a unanimous Supreme Court in Summit Hydropower Partnership v. Commissioner of Environmental Protection, 226 Conn. 792, 629 A.2d 367 (1993), Justice Callahan aptly described the definition of contested case provided by General Statutes § 4-166 (2) as “a grammatical quagmire . . . .” Summit Hydropower Partnership v. Commissioner of Environmental Protection, supra, 808.

       The commission’s contention in its appellate brief that “since [the October 9, 2004] letter was not in evidence it was not bound to consider it” contradicts its “supplemental record summary” filed in the Superior Court on November 3, 2005. In that filing, Mary E. Schwind, the director of the commission’s law department, certified that the October 9, 2004 letter was part of the record “upon which the [commission] acted.”

       In addition, the plaintiff raised an objection to the entry of a final decision by the commission at the commission’s October 27, 2004 meeting. At that meeting, the plaintiff argued that because “the parties [had] resolved the matter,” the commission lacked statutory authority to issue a final decision.

       “If jurisdiction, although once obtained, has been lost, administrative proceedings must be dismissed.” 2 Am. Jur. 2d 261, Administrative Law § 297 (2004).

       In Capone v. State, Docket No. FIC 2006-236 (September 13, 2006), the complainant withdrew her complaint “by e-mail,” which the commission accepted and, accordingly, dismissed the case.

       We note that the present, factual scenario is far from unique. For example, in Young v. Mayor, Docket No. FIC 2006-115 (September 13, 2006), Winkler v. Commissioner of Transportation, Docket No. FIC 2005-494 (September 13, 2006), and Kane v. Board of Finance, Docket No. FIC 2005-449 (January 11, 2006), a contested hearing was held and the complainant subsequently withdrew the complaint by letter. Like the complainant in the present case, the complainant in Kane “informed the commission that he no longer wished to pursue his complaint.” In each of those cases, the commission dismissed the matter without reaching the merits of the complaint. Moreover, in Young and Winkler, the commission expressly commended “the parties on having reached a non-litigated settlement in [the] matter.”

       In an attempt to distinguish Horn, the commission states that the Horn court “did not conclude that the commission was without jurisdiction to issue afinal decision” in that matter. It is axiomatic that an appellate decision stands only for those issues presented to, and considered by, the court in that particular appeal. See, e.g., Cumberland Farms, Inc. v. Groton, 262 Conn. 45, 83 n.37, 808 A.2d 1107 (2002). Although the plaintiff in Horn claimed, as an alternate ground for affirmance, that the commission lacked statutory authority to proceed in that case, the Horn court stated that “[i]n light of our disposition of the case on the grounds upon which the trial court sustained the plaintiffs administrative appeal, we need not address this issue.” Horn v. Freedom of Information Commission, supra, 16 Conn. App. 50 n.2. That clarification by the Horn court belies the trial court’s statement that “the holding [of Horn] contemplates that the commission had jurisdiction.” Hence, it cannot be said that Horn stands for the proposition presently espoused by the commission.

       We note that proceedings before the commission do not conclude upon completion of a contested hearing. Rather, a proposed final decision subsequently is prepared. The commission then is free to accept, modify or reject that preliminary determination as it sees fit. See generally Regs., Conn. State Agencies § l-21j-40. In light of the fact that settlement is favored; Horn v. Freedom of Information Commission, supra, 16 Conn. App. 53; see also Young v. Mayor, Docket No. FIC 2006-115 (September 13, 2006); Winkler v. Commissioner of Transportation, Docket No. FIC 2005-494 (September 13, 2006); and the fact that the commission’s consideration of a given case is not completed until it issues a final decision, we are perplexed as to why Tuccitto’s withdrawal of her complaint almost one month prior to the commission’s final decision did not end the matter.

       The commission maintains, pursuant to Practice Book § 60-5, that we are not bound to consider the plaintiffs mootness claim because it was not raised before the commission or the trial court. We disagree. “[BJecause mootness is jurisdictional, it is an issue that can be raised at any time regardless of whether it was preserved at trial.” Kondrat v. Brookfield, 97 Conn. App. 31, 38, 902 A.2d 718, cert. denied, 280 Conn. 926, 908 A.2d 1087 (2006).

       Because the documents were not provided to her “until almost three months after her initial request and only three days before the scheduled [commission] hearing,” the commission found that the plaintiff had violated the act “by failing to make available the requested documents in a prompt manner." Domestic Violence Services of Greater New Haven, Inc. v. Freedom of Information Commission, supra, 240 Conn. 8.

       By contrast, the final decision in the present case does not contain a prospective order. Prospective relief is warranted only when the particular facts at hand demand such orders. A review of several recent decisions of the commission indicates that prospective relief is the exception, rather than the norm.

       The court stated: “Since mootness implicates subject matter jurisdiction ... it can be raised at any stage of the proceedings. . . . We have consistently held that we do not render advisory opinions. If there is no longer an actual controversy in which we can afford practical relief to the parties, we must dismiss the appeal. . . . Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable. Justiciability requires . . . that there be an actual controversy between or among the parties to the dispute: Courts exist for determination of actual and existing controversies, and under the law of this state the courts may not be used as a vehicle to obtain judicial opinions on points of law. . . . [Wjhere the question presented is purely academic, we must refuse to entertain the appeal. ... A case becomes moot when due to intervening circumstances a controversy between the parties no longer exists.” (Citations omitted; internal quotation marks omitted.) Domestic Violence Services of Greater New Haven, Inc. v. Freedom of Information Commission, supra, 240 Conn. 6-7.

       At one point, the commission stated that “if another case arises before the commission in which the plaintiff is a respondent, that case necessarily would be required to be decided on the facts of that specific case” and also indicated that the present case “cannot be used against the plaintiff in a future case.” Despite that representation, we note that § l-21j-37 (d) of the Regulations of Connecticut State Agencies expressly permits the commission to “take administrative notice of . . . decisions and orders in other commission cases. . . .” Moreover, in response to the plaintiffs objection to the entry of a final decision at the October 27, 2004 meeting, the chairperson of the commission stated: “I find that we do have jurisdiction. . . . [The final decision] becomes part of the archives here and part of the precedential material that other persons may consider in the future, and so I’m ruling against you on jurisdiction.”

       See footnote 9.

        Domestic Violence Services of Greater New Haven, Inc. v. Freedom of Information Commission, 240 Conn. 1, 6-9, 688 A.2d 314 (1997).


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    PEARL WIESELMAN v. FELICIA S. HOENIGER
    (AC 28014)
    Flynn, C. J., and Gruendel and Haiper, Js.

      Argued April 30
    officially released September 4, 2007

      James H. Lee, for the appellant (plaintiff).

      Donald A. Mitchell, for the appellee (defendant).
   Opinion

HARPER, J.

In this fraudulent conveyance action, the plaintiff, Pearl Wieselman, appeals from the judgment of the trial court in favor of the defendant, Felicia S. Hoeniger. On appeal, the plaintiff claims that the court improperly determined that no fraudulent conveyance occurred because the court improperly (1) allocated the burden of proof and (2) applied General Statutes § 52-5526 by requiring that the transferee share in the transferor’s fraudulent intent. We disagree with the arguments advanced by the plaintiff and, accordingly, affirm the judgment of the trial court.

The following facts, as found by the court, and procedural history are relevant to the issues on appeal. Berthold Hoeniger (Hoeniger) was the plaintiffs lawyer and is the defendant’s father. He and the plaintiff shared a personal relationship, in addition to their business relationship, since the 1980s. Hoeniger acted as the plaintiffs counsel beginning in the 1980s and continuing until the end of 1999, after he told the plaintiff that he had sold the property at issue in this case. During their relationship, the plaintiff loaned Hoeniger money upon his request.

The plaintiff loaned $75,000 to Hoeniger in August, 1994, and an additional $10,000 in August, 1995. As security for the first loan, Hoeniger mailed to the plaintiff a warranty deed to real estate that he owned in Bridgewater. The plaintiff did not record the deed until January 5, 2001, well after Hoeniger had transferred the property to the defendant. As of February, 1999, Hoeniger owed the plaintiff $85,000, plus interest.

On February 19, 1999, Hoeniger sold the property to the defendant for $176,500, which the court found to be reasonable consideration. The plaintiff learned of the transfer in December, 1999, and filed the original complaint in this action on January 31, 2003.

On April 23, 2003, the plaintiff filed an amended complaint alleging that the transfer of the property was a fraudulent conveyance in violation of § 52-552e because the transfer was made with the actual intent to hinder, delay or defraud the plaintiff. The plaintiff alleged that the defendant was an insider, as defined by General Statutes § 52-552b (7), and that the defendant took title to the property from a debtor of the plaintiff, which property already had been pledged to the plaintiff as collateral for an outstanding debt.

The case was tried to the court in March, 2006. On August 11, 2006, the court determined that the plaintiff did not prove by clear and convincing evidence that a fraudulent transfer occurred. This finding was based, in part, on the court’s finding that the consideration for the transfer was reasonable. Additionally, the court concluded that even if the evidence weighed in favor of the plaintiff, she did not prove by clear and convincing evidence that the defendant intended to defraud the plaintiff. On August 31, 2006, the plaintiff filed this appeal.

I

The plaintiff first claims that the court improperly allocated the burden of proof in this fraudulent conveyance action. The plaintiff concedes that as a general rule, she had the burden of proving fraudulent intent by clear, precise and unequivocal evidence. See Dietter v. Dietter, 54 Conn. App. 481, 488, 737 A.2d 926, cert. denied, 252 Conn. 906, 743 A.2d 617 (1999). She claims, however, that because Hoeniger was her attorney, he owed her a fiduciary duty. Under these circumstances, she contends that the court should have shifted the burden of proof to the defendant to establish fair and equitable dealing by clear and convincing evidence.

The defendant responds that the court properly allocated the burden of proof to the plaintiff because the plaintiffs amended complaint alleged neither the existence of a fiduciary relationship with the defendant nor the breach of a fiduciary duty by the defendant. Furthermore, the defendant argues that the plaintiff provided no legal precedent to support her claim that the plaintiffs fiduciary relationship with a nonparty should be imputed to the defendant, thereby requiring the burden to shift. We agree with the defendant that there was no basis for the court to have shifted the burden of proof to her and that the court therefore properly allocated the burden of proof to the plaintiff.

Prior to examining the plaintiffs claim, we set forth the standard of review. “When a party contests the burden of proof applied by the court, the standard of review is de novo because the matter is a question of law.” (Internal quotation marks omitted.) Rollar Construction & Demolition, Inc. v. Granite Rock Associates, LLC, 94 Conn. App. 125, 133, 891 A.2d 133 (2006). “A party who seeks to set aside a transfer as fraudulent bears the burden of proving fraudulent intent by clear and convincing evidence.” Dietter v. Dietter, supra, 54 Conn. App. 488. In common-law fraud cases in which the party alleging fraud first proves that the other party owed them a fiduciary duty, our courts have shifted the burden of proof to the fiduciary to prove fair dealing by clear and convincing evidence. Murphy v. Wakelee, 247 Conn. 396, 400, 721 A.2d 1181 (1998).

The Uniform Fraudulent Transfer Act (act), General Statutes § 52-552a et seq., which was in effect at the time of the conveyance at issue, “is largely an adoption and clarification of the standards of the common law [of fraudulent conveyances].” (Internal quotation marks omitted.) Litchfield Asset Management Corp. v. Howell, 70 Conn. App. 133, 145 n.7, 799 A.2d 298, cert. denied, 261 Conn. 911, 806 A.2d 49 (2002). According to General Statutes § 52-552k, “[u]nless displaced by the provisions of sections 52-552a to 52-5521, inclusive, the principles of law and equity, including . . . the law relating to . . . fraud . . . supplement the provisions of said section.”

The plaintiff claims that although the court applied the clear and convincing standard of proof required to establish a fraudulent transfer, it did so to the wrong party, and, thus, the judgment should be reversed. The plaintiff argues that once the court found the existence of an attorney-client relationship, the burden of proving fair dealing should have shifted to the defendant. We agree with the plaintiff that the existence of an attorney-client relationship imposes a fiduciary duty on the attorney because such a relationship is “characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other.” (Internal quotation marks omitted.) Guilietti v. Guilietti, 65 Conn. App. 813, 835, 784 A.2d 905, cert. denied, 258 Conn. 946, 947, 788 A.2d 95, 96, 97 (2001). We disagree, however, that the fiduciary duty that arose from the attorney-client relationship can be imputed to the defendant, thereby requiring the burden of proof to shift to the defendant.

The plaintiff does not cite, and we are unaware of, any case law establishing that, as a matter of law, the burden of proof shifts from the plaintiff to the defendant on the basis of the plaintiffs relationship with Hoeniger, a nonparty. Also, neither the act nor equity supports the plaintiffs claim that the duty owed by Hoeniger should be imputed to the defendant.

Furthermore, the complaint neither alleged that the defendant was a fiduciary nor did it set forth facts from which a fiduciary relationship might be implied. See United Components, Inc. v. Wdowiak, 239 Conn. 259, 264, 684 A.2d 693 (1996). In a case such as the one before us, in which the plaintiff has neither pleaded nor proven that the defendant owed her a fiduciary duty, the burden of proof remains with the plaintiff. We therefore conclude that the court correctly placed the burden of proof on the plaintiff.

II

The plaintiff also claims that the court improperly applied § 52-552e by requiring her to prove by clear and convincing evidence that the defendant shared in the transferor’s intent. Although we agree that the court did not set forth the proper legal standard in regard to the transferee’s intent, we conclude that any error in this regard was harmless because the transferee’s intent did not have a bearing on the outcome of this case.

We note at the outset that our analysis of whether the court applied the correct legal standard is a question of law subject to plenary review. Fish v. Fish, 90 Conn. App. 744, 754, 881 A.2d 342, cert. granted on other grounds, 275 Conn. 924, 883 A.2d 1243 (2005).

The act is found in § 52-552a et seq. General Statutes § 52-552e (a) provides in relevant part that “[a] transfer made or obligation incurred by a debtor is fraudulent as to a creditor ... if the debtor made the transfer or incurred the obligation: (1) With actual intent to hinder, delay or defraud any creditor of the debtor . . . .” Prior to the adoption of the act, the plaintiff had to prove (1) that the transferor had intent to defraud the creditor and (2) that the transferee shared in the transferor’s fraudulent intent. Bizzoco v. Chinitz, 193 Conn. 304, 312, 476 A.2d 572 (1984). With the adoption of the act, § 52-552e (b) sets forth the factors that a court may consider when determining whether a debtor had the actual intent to defraud his or her creditor. The plain language in § 52-552e addresses the fraudulent intent of the debtor and makes no mention of the fraudulent intent of the transferee. In this case, the court found that the transfer was not fraudulent because the plaintiff did not establish by clear and convincing evidence a fraudulent intent on the part of Hoeniger. Having reached that conclusion, there was no need to determine whether the defendant intended to effectuate a fraudulent conveyance. Such a finding renders any further inquiry into the intent of the transferee unnecessary.

In its memorandum of decision, the court properly stated that the determination of whether a fraudulent conveyance took place is solely a question of fact to be determined by the trier of fact. The court properly set forth the provisions of § 52-552e (a) and the factors to be considered as enumerated in § 52-552e (b). The court, citing Bizzoco v. Chinitz, supra, 193 Conn. 312, however, improperly stated that “the plaintiff bears the burden of proving that the subject conveyance was made with a fraudulent intent in which the grantee (defendant) participated.” Although improper, this misstatement of the law is harmless because once the court found that the “evidence weighs in the defendant’s favor in this action for fraud,” further inquiry into the transferee’s intent was no longer necessary.

Additionally, we decline to upset the court’s finding that a fraudulent transfer did not occur pursuant to § 52-552e. “The determination of whether a fraudulent transfer took place is a question of fact and it is axiomatic that [t]he trial court’s [factual] findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Greco v. Greco, 275 Conn. 348, 359, 880 A.2d 872 (2005). This court has held that “[t]he determination of the question of fraudulent intent is clearly an issue of fact which must often be inferred from surrounding circumstances. . . . Such a fact is, then, not ordinarily proven by direct evidence, but rather, by inference from other facts proven—the indi-cia or badges of fraud.” (Internal quotation marks omitted.) Dietter v. Dietter, supra, 54 Conn. App. 487. The court specifically considered the factors enumerated in § 52-552e (b) and determined that the transfer of the property at issue from Hoeniger to the defendant on February 19, 1999, was not fraudulent.

As the fact finder, the court was entitled to accept the testimony of Hoeniger that he did not intend to give the plaintiff a security interest in the property that he transferred to his daughter, the defendant. See Boccanfuso v. Conner, 89 Conn. App. 260, 292, 873 A.2d 208 (trier free to accept or reject, in whole or in part, testimony offered by either party), cert. denied, 275 Conn. 905, 882 A.2d 668 (2005). The court was entitled, similarly, to accept the testimony of the defendant and Hoeniger that he also owed the defendant $30,000. The court was further entitled to find that although the transfer was to an insider, all the other factors enumerated in § 52-552e (b) weighed in favor of a finding that the transfer was not fraudulent. We conclude that the court properly applied § 52-552e and that the facts in the record support the court’s finding that there was no fraudulent intent on the part of Hoeniger. The court never found that he had fraudulent intent; thus, its hypothetical inquiry into the defendant’s intent had no bearing on the outcome of the case.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-552e (a) provides in relevant part: “A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, if the creditor’s claim arose before the transfer was made or the obligation was incurred and if the debtor made the transfer or incurred the obligation: (1) With actual intent to hinder, delay or defraud any creditor of the debtor

       We refer in this opinion to the defendant’s father, Berthold Hoeniger, as Hoeniger. We refer to Felicia Hoeniger as the defendant.

       Hoeniger executed documents and received money from the plaintiff individually and by way of the Berthold Hoeniger Pension Trust and by way of his law firm account. We agree with the court that, for relevant purposes, there is no difference between any of these entities. As such, all of these entities will be referred to as the debtor-transferor without making any further distinction.

       Hoeniger testified that he intended to send the plaintiff a mortgage deed and not a warranty deed. The court noted that this was “an enormous and curious blunder, especially for a lawyer with [his] legal background.”

       We note that there is some evidence of minimal payments toward this obligation totaling approximately $14,000.

       General Statutes § 52-552b (7) provides in relevant part: “ ‘Insider’ includes: (A) If the debtor is an individual, (i) a relative of the debtor . . . .”

       We note that in this case, the burden that is shifting is the burden of proof. In common-law fraud cases, the plaintiff has the burden of proving fraud by clear and convincing evidence. When a plaintiff alleges fraud and the existence of a fiduciary duty, however, the plaintiff has only the burden of proving that the other party owed him or her a fiduciary duty. Once the plaintiff has demonstrated that a fiduciary relationship exists, the burden is lifted from the plaintiff and placed on the fiduciary. Specifically, the burden placed on the fiduciary is the burden to prove that the fiduciary’s conduct was fair and equitable. If the fiduciary is able to meet this burden, then the plaintiffs case fails because if the behavior was fair and equitable, it is axiomatic that the behavior was not fraudulent.

       “Our law on the obligations of a fiduciary is well settled. [A] fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other. . . . The superior position of the fiduciary or dominant party affords him great opportunity for abuse of the confidence reposed in him.” (Internal quotation marks omitted.) Murphy v. Wakelee, 247 Conn. 396, 400, 721 A.2d 1181 (1998).

       We note that shifting the burden of proof when a fiduciary relationship is found to exist arises out of equity, i.e., fairness. It is only fair that one who is under a duty to act for the benefit of the other, i.e., a fiduciary, should have to prove that he acted fairly and equitably.

       General Statutes § 52-552e (b) provides: “In determining actual intent under subdivision (1) of subsection (a) of this section, consideration may be given, among other factors, to whether: (1) The transfer or obligation was to an insider, (2) the debtor retained possession or control of the property transferred after the transfer, (3) the transfer or obligation was disclosed or concealed, (4) before the transfer was made or obligation was incurred, the debtor had been sued or threatened with suit, (5) the transfer was of substantially all the debtor’s assets, (6) the debtor absconded, (7) the debtor removed or concealed assets, (8) the value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred, (9) the debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred, (10) the transfer occurred shortly before or shortly after a substantial debt was incurred, and (11) the debtor transferred the essential assets of the business to a lienor who transferred the assets to an insider of the debtor.”