author: WEST, J.

text:
    STATE OF CONNECTICUT v. REINA HEYLIGER
    (AC 29620)
    Beach, Robinson and West, Js.

      Argued January 20
    officially released May 5, 2009

      Bradford Buchta, deputy assistant public defender, for the appellant (defendant).

      Melissa L. Streeto, assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Terence D. Mariani, senior assistant state’s attorney, for the appellee (state).
   Opinion

WEST, J.

The defendant, Reina Heyliger, appeals from the judgment of conviction, rendered by the trial court, after she entered guilty pleas under the Alford doctrine to conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a) (2) and larceny in the first degree in violation of General Statutes § 53a-122. The issue in this appeal is whether, at the time she entered her plea, the defendant was apprised adequately of the nature of the criminal charges against her consistent with the federal constitutional requirement that a guilty plea, to be valid, must be made knowingly and voluntarily. We conclude that she was not and, accordingly, reverse the judgment of the trial court.

The record reveals the following relevant facts and procedural history. The charges the defendant faced were the result of an incident that took place on August 20, 2004, in Waterbury. Police were dispatched to Fleet Bank on Fairfield Avenue on a report of a robbery that had taken place. Witnesses reported that a man, later identified as Dale Hylton, had entered the bank wearing women’s clothing and a wig. He then grabbed a teller and held her at knifepoint. He ordered the other tellers to empty their cash drawers into a bag and absconded with approximately $15,000 in cash. When Hylton left the bank, witnesses observed him get into a Mercury Mountaineer vehicle with New York license plates. Police soon located and stopped the vehicle. The defendant was driving, and Hylton was in the backseat along with the bag of stolen money. He had a knife in his possession. The defendant and Hylton were arrested and taken into police custody. Soon after, the defendant gave the police a written statement admitting her involvement in the robbery. On February 21, 2006, the state, by substitute information, charged the defendant with conspiracy to commit robbery in the first degree and larceny in the first degree. After canvassing the defendant, the court accepted her guilty plea. She was subsequently sentenced to twelve years incarceration, suspended after seven years, followed by five years of probation. This appeal followed.

At the outset, we note that the defendant failed to file a timely motion seeking to withdraw her guilty plea under Practice Book § 39-26. The defendant seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We will review the defendant’s claim, as the record is adequate for review, and the alleged violation is of constitutional magnitude. The defendant’s claim also satisfies the third prong of Golding because we conclude that it is clear from the record that a constitutional violation exists. Finally, the claim satisfies the fourth and final prong of Golding because the state has not demonstrated harmlessness of the alleged constitutional violation beyond a reasonable doubt.

“It is axiomatic that unless a plea of guilty is made knowingly and voluntarily, it has been obtained in violation of due process and is therefore voidable. ... A plea of guilty is, in effect, a conviction, the equivalent of a guilty verdict by a jury. ... In choosing to plead guilty, the defendant is waiving several constitutional rights, including his privilege against self-incrimination, his right to trial by jury, and his right to confront his accusers. . . . These considerations demand the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and its consequences. . . . We therefore require the record affirmatively to disclose that the defendant’s choice was made intelligently and voluntarily.” (Citations omitted.) State v. Childree, 189 Conn. 114, 119-20, 454 A.2d 1274 (1983). Moreover, “[t]he constitutional stricture that a plea of guilty must be made knowingly and voluntarily . . . requires not only that there be a voluntary waiver during a plea canvass of the right to a jury trial, the right of confrontation and the right against self-incrimination, but also that the defendant must be aware of and have an understanding of all of the elements of the crime or crimes with which he is charged .... [T]he plea could not be voluntary in the sense that it constituted an intelligent admission that he committed the offense unless the defendant received real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process.” (Citations omitted; internal quotation marks omitted.) State v. Hackett, 16 Conn. App. 601, 602, 548 A.2d 16 (1988).

“Our courts [however] have stopped short of adopting a per se rule that notice of the true nature of the charge always requires the court to give a description of every element of the offense charged. . . . The trial court’s failure to explicate an element renders the plea invalid only where the omitted element is a critical one . . . and only where it is not appropriate to presume that defense counsel has explained the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit.” (Internal quotation marks omitted.) State v. Barnwell, 102 Conn. App. 255, 260-61, 925 A.2d 1106 (2007). “Defense counsel generally is presumed to have informed the defendant of the charges against him. [E]ven without an express statement by the court of the elements of the crimes charged, it is appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit. . . . [U]nless a record contains some positive suggestion that the defendant’s attorney had not informed the defendant of the elements of the crimes to which he was pleading guilty, the normal presumption applies.” (Internal quotation marks omitted.) Id., 259-60.

Addressing whether the usual presumption applies, which is that the defendant’s attorney explained to her the elements of the crimes to which she pleaded guilty, we take note of the following colloquy that took place between the court and the defendant soon after the state related the facts of the case to the court:

“The Court: Did you discuss with [your attorney] the nature and the elements of the two charges you [pleaded] guilty to that the state would have to prove, and what the maximum and mandatory minimum sentences are?

“[The Defendant]: No, I don’t think I heard about what the state had to prove.

“The Court: Well, I’m going to read the statute to you in a minute, but didn’t he discuss with you the circumstances of the bank robbery, the—

“[The Defendant]: He discussed my statement, basically.

“The Court:—the confession that you gave.

“[The Defendant]: Yes.

“The Court: And that that would be put in front of a jury and would be part of the evidence used against you to try to prove that you committed the crime beyond a reasonable doubt. Did you discuss that with him?

“[The Defendant]: Yes.

“The Court: So, basically he went through the evidence, the confession.

“[The Defendant]: But there were other circumstances.

“The Court: I understand that, but those other circumstances might not necessarily be elements of the crime. He has to talk to you about what the state would have to prove to show there was a robbery.

“[The Defendant]: Well, that has been proven, because I made the statement.

“The Court: That’s kind of the point I’m making.

“[The Defendant]: Right.

“The Court: Okay. So, you discussed that with him.

“[The Defendant]: I was trying to explain that I was under duress.

“The Court: I understand that.

“[The Defendant]: During this whole situation.

“The Court: And that would be a defense that you would try to put forward.

“[The Defendant]: Right.

“The Court: But it is not an element of the crime of robbery.

“[The Defendant]: Okay.

“The Court: And I’ll read it to you in a second.”

We note that the defendant’s attorney did not refute the defendant’s contention that he failed to inform her of the elements of the crimes to which she was pleading guilty, nor was there any further discussion initiated by the court or the attorneys regarding this matter. We conclude, therefore, that the record contains some positive suggestion that the defendant’s attorney had not informed the defendant of the elements of the crimes to which she was pleading guilty. See State v. Lopez, 269 Conn. 799, 802, 850 A.2d 143 (2004). The state argues, essentially, that despite the previous colloquy and the positive suggestion therein, the record reveals circumstances that support the contention that the presumption applies. The state refers to portions of the record that indicate that the defendant informed the court that she had discussed with her attorney the state’s evidence, her confession and the case generally, and that she was satisfied with his advice. We are not persuaded.

We agree that “the constitutional prerequisites of a valid plea may be satisfied where the record accurately reflects that the nature of the charge and the elements of the crime were explained to the defendant by [the defendant’s] own, competent counsel.” (Internal quotation marks omitted.) State v. Reid, 277 Conn. 764, 784, 894 A.2d 963 (2006). Here, however, the record does not accurately reflect such an explanation by the defendant’s attorney. In fact, it reflects the contrary in that the defendant stated, in response to the court’s question regarding what her attorney had explained to her concerning the charges pending against her: “No, I don’t think I heard about what the state had to prove.” Moreover, the record reflects that this contention was not refuted by her attorney, nor did the court or the state through the court attempt to elicit from either the defendant or her attorney any statement for the record indicating otherwise. We find this omission in the record compelling to our decision as to whether the usual presumption applies. This is so, in part, because during the portion of the plea canvass in which the court discussed the parameters of the sentences that the defendant was facing, the court not only asked her if she had discussed those parameters with her attorney, it also corroborated that fact with her attorney. That exchange serves to underscore the court’s failure to seek from the defendant’s attorney any assurance that he had, in fact, explained to the defendant the elements of the crimes to which she was pleading guilty. We conclude, under the circumstances, that the record does not suggest any facts that would give rise to the presumption that the defendant’s attorney informed her of the elements and that, here, the presumption does not apply. We now must address whether the court adequately apprised the defendant of critical elements of the crimes to which she pleaded guilty.

Our review of the record discloses that the defendant was not informed by the court during the plea canvass of the critical elements of the crimes to which she pleaded guilty. Although the court did apprise her adequately of the elements of conspiracy by reading the statutory provision to her; see State v. Barnwell, supra, 102 Conn. App. 260 (court’s reading relevant provisions of statute sufficient to explain elements of crime to defendant); it failed to do the same with the underlying robbery charge or the larceny charge. The court stated repeatedly that it would read to the defendant the statutes defining the crimes to which she pleaded guilty. It did not. What the court did was to read the statutes that defined the elements that elevated the crimes charged to larceny in the first degree and robbery in the first degree, respectively. For example, as for the larceny charge, the court read to the defendant the following: “Larceny in the first degree reads: A person is guilty of larceny in the first degree when he commits larceny and the value of the property or services exceeds $10,000 under subsection two.” The court, however, failed to set out the elements of larceny itself. See footnote 3. The same can be said of the charge of robbery in the first degree underlying the conspiracy charge. The court read to the defendant: “Robbery in the first degree under [subsection] (a) (2)—a person is guilty of robbery in the first degree when in the course of the commission of the crime of robbery or of immediate flight therefrom, he or another participant in a crime is armed with a deadly weapon.” Again, however, the court failed to set out the elements of robbery itself. See footnote 2.

In State v. Childree, supra, 189 Conn. 121, our Supreme Court utilized a “[comparison of the trial court’s definition of [the charged offense] with the statutory definition of [that] offense” to come to “the conclusion that [an element] essential to a commission of [that offense] was not made clear to the defendant in [that] case.” Here, such a comparison results in the same conclusion for both the larceny charge and the robbery charge underlying the conspiracy charge. In Childree, the trial court neglected to make clear to the defendant one element of a crime to which he was pleading guilty, the threat of future harm element of larceny under General Statutes §§ 53a-119 (5) (A) and 53a-122 (a) (1). Id. Here, the court, in reading only those portions of the statutes that elevated the charges to larceny and robbery in the first degree, left out several elements essential to the commission of those crimes. The state claims that the record, as a whole, reveals that the defendant adequately was apprised by the court of the elements of the crimes to which she pleaded guilty. It makes several arguments in support of this contention.

First, it contends that, typically, a court’s reading of the relevant portions of the statutes with which the defendant has been charged suffices to apprise her of the elements of those crimes. Although we do not dispute that this is true, here, the court, as we have concluded, did not read the relevant portions of the statutes that set out the elements of the crimes to which the defendant was pleading guilty. Next, the state argues that the court attempted to explain the elements of the crimes to the defendant and that she indicated that she understood them. We agree that a court is permitted to rely on a defendant’s responses during a plea canvass in deciding whether she was informed adequately of elements of charged offenses. See State v. Irala, 68 Conn. App. 499, 512, 792 A.2d 109, cert. denied, 260 Conn. 923, 797 A.2d 519, cert. denied, 537 U.S. 887, 123 S. Ct. 132, 154 L. Ed. 2d 148 (2002); see State v. Johnson, 253 Conn. 1, 40, 751 A.2d 298 (2000), citing Bowers v. Warden, 19 Conn. App. 440, 443, 562 A.2d 588, cert. denied, 212 Conn. 817, 565 A.2d 534 (1989). Here, however, the defendant indicated that she understood what facts the state was prepared to prove on the basis of her written statement made to the police. We, however “require the record to disclose an act that represents ... an understanding of the law in relation to the facts”; (emphasis added; internal quotation marks omitted) State v. Holmes, 78 Conn. App. 479, 487-88, 827 A.2d 751, cert. denied, 266 Conn. 909, 832 A.2d 73 (2003); and here the record discloses none. Finally, the state’s argument that the factual allegations made at the plea canvass and the fact that the defendant made a written statement each served to put her on notice of the elements of the crimes charged also fails in light of the requirement of an indication on the record of an understanding by the defendant of the law in relation to those facts.

We conclude that the usual presumption that the defendant’s attorney adequately apprised her of the elements of the crimes to which she was pleading does not apply and that the court failed to set out the essential elements of those crimes. We, therefore, also conclude that at the time she entered her plea, the defendant was not apprised adequately of the nature of the criminal charges against her consistent with the federal constitutional requirement that a guilty plea, to be valid, must be made knowingly and voluntarily.

The judgment is reversed and the case is remanded with direction to allow the defendant to withdraw her guilty pleas and for further proceedings in accordance with law.

In this opinion the other judges concurred.

       See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”
      General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (2) is armed with a deadly weapon . . . .”
      General Statutes § 53a-133 defines robbery as follows: “A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.”

       General Statutes § 53a-122 (a) provides in relevant part: “A person is guilty of larceny in the first degree when he commits larceny, as defined in section 53a-119, and ... (2) the value of the property or service exceeds ten thousand dollars . . . .”
      General Statutes § 53a-119 provides in relevant part: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. . . .”

       Practice Book § 39-26 provides: “A defendant may withdraw his or her plea of guilty or nolo contendere as a matter of right until the plea has been accepted. After acceptance, the judicial authority shall allow the defendant to withdraw his or her plea upon proof of one of the grounds in Section 39-27. A defendant may not withdraw his or her plea after the conclusion of the proceeding at which the sentence was imposed.”

       The defendant’s statement was not made part of the record; however, the state at the plea hearing, without objection from the defendant, portrayed its contents as follows: “Police took [the defendant] into custody, advised her of her [rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)], and she gave a full, written statement wherein she indicated in pertinent part that she was, in fact, a girlfriend to the person who went into the bank [and] that they had discussed on a number of occasions robbing a bank here in Waterbury.
      “They had, in fact, come from New York this particular day, August 20, 2004. They looked for a number of banks, drove around various neighborhoods [and] discussed finding a bank in a more quiet location.
      “When they eventually found the bank on Fairfield Avenue that they had decided to rob, this defendant, after going into a grocery store, waited in the motor vehicle so that when the defendant—the other defendant, Mr. Hylton, completed the robbery, he fled the bank, drove in, [and] she was the getaway driver.”

       The state directs our attention to the colloquy quoted previously in this opinion as well as the following discussion between the defendant and the court:
      “The Court: All right. Miss Heyliger, have you now had enough time to speak to your lawyer?
      “[The Defendant]: Yes, I spoke to him. Yes. . . .
      “The Court: All right. Are you satisfied with his advice?
      “[The Defendant]: No, I can’t say that I am.
      “The Court: ... Is it that you’re not satisfied with his advice or you’re not happy that you’re accepting the seven year sentence?
      “[The Defendant]: I’m not happy with the sentence. . . . Well, he gave me [the] advice that he could give, but I’m not happy with what I have to do today. So, yeah, I’m happy—I’m all right with his advice. . . .
      “The Court: Okay. So, what you’re telling [the court] is [that] you’re doing what you ultimately think is in your best interest.

        “[The Defendant]: Yes, ultimately, yes.
      “The Court: And you’ve decided what you think is ultimately based— ultimately is in your best interest based upon your consultation with [defense counsel], the two of you sitting down, and I don’t want to know the contents of what you talked about, that’s not my business, but whatever it is the two of you talked about, you came out of that discussion believing that entering a guilty plea under the doctrine [of North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970)] was the best thing that you could do under the circumstances.
      “[The Defendant]: Yes. . . .
      “The Court: Right. So, you’re not dissatisfied with his advice, you’re just unhappy this whole thing happened and you’re here.
      “[The Defendant]: Yes. . . .
      “The Court: Okay. . . . You think he told you this is what we’ve got, and this is what could happen, what do you want to do, and based—I’m paraphrasing, you know—and then after whatever discussions you had, the two of you came away from that discussion and said there’s no good resolution here. My best benefit is to take the judge’s offer and not take the risk of going in front of a jury. I might get convicted.
      “[The Defendant]: Uh-huh. . . .
      “The Court: So, I’m going to ask you again, based on this little conversation we’ve had, are you satisfied with the advice he gave you?
      “[The Defendant]: Yes.”


source: Caselaw Access Project

author: STOUGHTON, J.

license: Public Domain

text:
    EDWARD J. TUCCIO ET AL. v. JACK D. GARAMELLA
    (AC 29254)
    Lavine, Beach and Stoughton, Js.
    Argued January 13
    officially released May 5, 2009

      John R. Williams, for the appellants (plaintiffs).

      Daniel B. Fitzgerald, with whom, on the brief, was David R. Makarewicz, for the appellee (defendant).
   Opinion

STOUGHTON, J.

The plaintiffs, Edward J. Tuccio and Tuccio Development Corporation, Inc., have appealed from the judgment of nonsuit rendered against them and from the denial of their motion to set aside the judgment of nonsuit. The plaintiffs claim that nonsuit as a discovery sanction under the circumstances in this case was unduly harsh and an abuse of the trial court’s discretion. We agree and, accordingly, reverse the judgment of the trial court.

The facts do not appear to be in dispute. In August, 2006, the plaintiffs commenced this action against the defendant, Jack D. Garamella, alleging legal malpractice and claiming damages. The pleadings were closed, and, thereafter, on February 23, 2007, the defendant filed a set of interrogatories and requests for production. The plaintiffs moved to extend the time in which to respond to the defendant’s discovery request to April 23, 2007, and the motion was granted by the court. On April 16, 2007, the plaintiffs moved for an additional extension of time until May 23, 2007. The defendant objected to this request, but neither his objection nor the plaintiffs’ request for an additional extension was ruled on. On June 13, 2007, the defendant filed a motion requesting that the court (1) enter a nonsuit against the plaintiffs for their failure to respond to his interrogatories and requests for production or (2) order that responses to his discovery request be provided within seven days of the court’s order. The court, after a hearing on July 30, 2007, granted the defendant’s request for a nonsuit and rendered judgment accordingly. The plaintiffs responded to the interrogatories and requests for production on August 13, 2007, and on August 15, 2007, moved to set aside the judgment of nonsuit. That motion was denied after a hearing on October 1, 2007. This appeal followed.

The plaintiffs claim that the court abused its discretion when it entered a nonsuit against them and denied their motion to set aside the judgment of nonsuit. Because we agree with the plaintiffs in regard to their first claim, we need not reach the plaintiffs’ second claim.

The defendant’s motion for a nonsuit or to compel compliance was assigned to be heard in Danbury on July 30, 2007. When the matter was called, counsel for the plaintiffs, John R. Williams, did not appear, and the court thereupon granted the motion. Later that day, a lawyer from the office of attorney Williams appeared before the court. She informed the court that she had been delayed in traffic coming from New Haven and that she had instructed her office to inform the defendant’s counsel on his cellular telephone. The court suggested that she consult with the defendant’s counsel. The defendant’s counsel reentered the courtroom before the colloquy between the court and the plaintiffs’ counsel had ended and thereafter agreed that the prior orders be vacated. The court asked why there had been no response to the defendant’s discovery request, and the plaintiffs’ counsel replied that she could report only that Tuccio had been involved in a federal trial during that period and that Williams had been working with Tuccio to finalize the answers. Although it is not as clear as it might be from the transcript, Williams informed us during oral argument that he and Tuccio had been engaged in a trial at the time. The court observed, quite properly, that the fact of counsel’s being engaged in a trial elsewhere did not excuse the noncompliance and thereafter rendered judgment of nonsuit.

Practice Book § 13-14 provides sanctions for failure to answer interrogatories, which the court may order upon motion as the ends of justice require. These orders may vary in severity from entry of a nonsuit or default or judgment of dismissal to an award of costs of the motion, including a reasonable attorney’s fee. “Decisions on the entry of such sanctions rest within the sound discretion of the trial court.” Rullo v. General Motors Corp., 208 Conn. 74, 78, 543 A.2d 279 (1988). On viewing a claim that this discretion has been abused, “great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness. . . . [T]he ultimate issue is whether the court could reasonably conclude as it did.” (Citations omitted; internal quotation marks omitted.) Id., 78-79.

“The factors to be considered by the court include: (1) whether the noncompliance was caused by inability, rather than wilfulness, bad faith or other fault; (2) whether and to what extent noncompliance caused prejudice to the other party, including the importance of the information sought to the party’s case; and (3) which sanction would, under the circumstances of the case, be an appropriate judicial response to the noncomplying party’s conduct.” Biro v. Hill, 231 Conn. 462, 464-65, 650 A.2d 541 (1994).

There is an insufficient record from which to conclude either that counsel was unable to respond to the interrogatories before he did, or that failure to respond was wilful or in bad faith, and the court made neither finding. There was no evidence of prejudice to the defendant except for his claim that he was prejudiced by the lawsuit against him itself.

We therefore review whether the court abused its discretion in rendering a judgment of nonsuit as a sanction. “ [Discretion imports something more than leeway in decision-making. ... It means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. ... In addition, the court’s discretion should be exercised mindful of the policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court. . . . The design of the rules of practice is both to facilitate business and to advance justice; they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice. . . . Rules are a means to justice, and not an end in themselves. . . . Our practice does not favor the termination of proceedings without a determination of the merits of the controversy where that can be brought about with due regard to necessary rules of procedure. . . . Therefore, although dismissal of an action is not an abuse of discretion where a party shows a deliberate, contumacious or unwarranted disregard for the court’s authority . . . the court should be reluctant to employ the sanction of dismissal except as a last resort. . . . [T]he sanction of dismissal should be imposed only as a last resort, and where it would be the only reasonable remedy available to vindicate the legitimate interests of the other party and the court. . . . Millbrook Owners Assn., Inc. v. Hamilton Standard, [257 Conn. 1, 16-17, 776 A.2d 1115 (2001)]. The reasoning oí Millbrook Owners Assn., Inc., applies equally to nonsuits and dismissals.” (Internal quotation marks omitted.) Blinkoff v. O & G Industries, Inc., 89 Conn. App. 251, 257-58, 873 A.2d 1009, cert. denied, 275 Conn. 907, 882 A.2d 668 (2005).

There was a delay and lack of diligence on the part of the plaintiffs with no real explanation for the delay in responding to the interrogatories. Nevertheless, under the circumstances of this case, we conclude that the ultimate sanction of nonsuit was disproportionate to the violation of the discovery request and therefore an abuse of discretion. See id., 259. We also note that although a nonsuit had entered, compliance occurred soon thereafter in a fashion that the defendant does not claim prejudiced his ability to prepare for trial.

The judgment is reversed and the case is remanded for further proceedings in accordance with the law.

In this opinion the other judges concurred.

       The defendant also requested that the court award him the costs of the motion, including a reasonable attorney’s fee, which the court denied.

       Specifically, the defendant claims that he is prejudiced in the following manner: (1) potential clients can go to the judicial branch Internet site and see that there is a lawsuit pending against him for legal malpractice; (2) he has to continue making payments toward his malpractice insurance deductible while his insurance company is paying an attorney to represent him in the matter; and (3) he has to take time away from his legal practice to respond to the plaintiffs’ arguments, to form a defense or to educate his attorneys about the factual background of the case.


author: DiPENTIMA, J.

text:
    IDA TESTONE v. C. R. GIBSON COMPANY ET AL.
    (AC 28918)
    Bishop, DiPentima and Foti, Js.

      Argued December 2, 2008
    officially released May 5, 2009

      Daniel D. Skuret III, for the appellant (plaintiff).

      JohnP. Clarkson, with whom, on the brief, was Matthias J. DeAngelo, for the appellees (defendants).
   Opinion

DiPENTIMA, J.

In this workers’ compensation case, the plaintiff, Ida Testone, appeals from the workers’ compensation review board’s (board) decision affirming the findings and conclusion of the workers’ compensation commissioner for the fifth district (commissioner), in which the commissioner denied the plaintiffs claims for temporary partial disability benefits and attorney’s fees. The principal issue in this appeal is the commissioner’s admission and use of three independent medical examination reports. Specifically, the plaintiff claims that the board should have determined that the commissioner improperly admitted the three reports and improperly relied on those reports in denying the plaintiff temporary partial disability benefits. The plaintiff also claims that the board improperly affirmed the commissioner’s ruling denying the plaintiffs motion to correct and the determination that the plaintiff had not suffered a compensable recurrence or relapse under General Statutes § 31-307b. We affirm the decision of the board.

The plaintiff suffered a compensable injury to her right hand on June 12, 2000. As of early 2002, the defendant C. R. Gibson Company was paying benefits to the plaintiff for this injury. On January 17, 2002, the plaintiffs treating physician, Robert W. Nolan, issued a report stating that the plaintiff had reached maximum medical improvement and could be discharged from therapy. The report also stated that the plaintiff would have a permanent restriction on work activities of no repetitive use of her right hand. On the basis of Nolan’s report, the defendant filed a form 36 seeking to reduce the plaintiffs benefits from temporary total disability to temporary partial disability and to require the plaintiff to perform job searches. The plaintiff objected to the form 36, and, following a formal hearing, the commissioner approved the form 36, effective March 25, 2002. The defendant paid the plaintiff for a 5 percent permanent partial disability to her wrist. On February 25, 2002, Balazs Somogyi, a physician, performed an independent medical examination of the plaintiff. Somogyi’s report concluded that the plaintiff was at maximum medical improvement and that “[t]he present symptoms and functional limitations are out of proportion to the injury reported.” On November 21, 2002, the plaintiff was seen by Nolan, who maintained his opinion that the plaintiff had reached maximum medical improvement and recommended that she continue job searches.

From May, 2002, to March, 2005, eight informal hearings and three preforma! hearings were held regarding the plaintiffs claims. On June 18, 2003, the plaintiff was seen by Marvin S. Arons, a physician, for an evaluation of an injuiy to her shoulder, which had occurred in 1999. Arons opined that the plaintiff had not reached maximum medical improvement and recommended that she be seen by a shoulder specialist before treatment could begin for symptoms related to her wrist injury. One year later, on June 30, 2004, Arons reported that the plaintiffs medical conditions had not changed. The plaintiff began receiving temporary partial disability benefits on August 2, 2004. On October 25, 2004, Arons issued an additional report, in which he diagnosed the plaintiff with chronic upper extremity pain syndrome and recommended that she undergo a wrist arthrogram. The plaintiff subsequently had a wrist arthrogram performed and underwent surgery on March 31, 2005.

In 2005, the plaintiff sought a formal hearing to open the commissioner’s decision on the form 36 and claimed entitlement to temporary partial disability benefits from March 14, 2002, through August 1, 2004. The plaintiff also sought attorney’s fees, interest and penalties for the discontinuance of temporary partial benefits on March 14, 2002, and for undue delay and unreasonable contest of medical treatment and payment of the benefits. On April 26, 2005, a formal hearing was held before the commissioner. On January 5, 2006, the commissioner issued her findings and denied the plaintiffs requests. Specifically, the commissioner denied the plaintiffs claim for temporary partial disability benefits between March 25,2002, and August 1,2004, concluding that the substantial weight of the medical authority did not support awarding the plaintiff those benefits. The commissioner further concluded that there was no undue delay in the provision of medical treatment or unreasonable contest of the claim and that the plaintiff was not entitled to attorney’s fees, interest or penalties.

The plaintiff filed a motion to correct, which the commissioner denied in an order dated February 27, 2006. The plaintiff filed an appeal with the board, which affirmed the commissioner’s decision. This appeal followed.

Before turning to the merits of the plaintiff claims, we identify our standard of review in workers’ compensation appeals. “The commissioner is the sole trier of fact and [t]he conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . The review [board’s] hearing of an appeal from the commissioner is not a de novo hearing of the facts. . . . [I]t is [obligated] to hear the appeal on the record and not retiy the facts. ... On appeal, the board must determine whether there is any evidence in the record to support the commissioner’s finding and award.” (Internal quotation marks omitted.) Anderson v. R & K Spero Co., 107 Conn. App. 608, 613, 946 A.2d 273 (2008); O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 816, 728 A.2d 527 (1999). Our review of the board’s actions is similarly limited. “[However] [t]he decision of the [board] must be correct in law, and it must not include facts found without evidence or fail to include material facts which are admitted or undisputed. . . . Put another way, the board is precluded from substituting its judgment for that of the commissioner with respect to factual determinations.” (Internal quotation marks omitted.) Anderson v. R & K Spero Co., supra, 614; see Tracy v. Scherwitzky Gutter Co., 279 Conn. 265, 272, 901 A.2d 1176 (2006).

I

The plaintiffs principal challenge addresses the commissioner’s admission and use of three independent medical examination reports in denying the plaintiffs claim of temporary partial disability benefits. We conclude that the commissioner improperly relied on the reports for a broader purpose than that for which they were admitted. We conclude, however, that such use was harmless error.

At the formal hearing, the defendant sought to introduce a report dated July 23, 2002, by Christopher Lena, a physician, who performed an independent medical examination of the plaintiff. The plaintiff objected to the admission of the report on the basis that she would not have an opportunity to cross-examine Lena. The defendant stated that it was not offering the report for its truth but as a defense to the issue of undue delay and unreasonable contest. The commissioner overruled the plaintiffs objection and admitted the report into evidence. The defendant then sought to introduce a report dated December 16, 2003, by Ira Spar, a physician, who also performed an independent medical examination of the plaintiff. The defendant offered the report “just to prove as to . . . what Travelers [Property and Casualty, the defendant’s workers’ compensation insurer] did and what they were told in the course of this case. ” The commissioner overruled the plaintiffs objection and admitted the report into evidence. Finally, the defendant sought to introduce a March 9, 2004 report by Michael Kaplan, a physician, who also performed an independent medical examination of the plaintiff. The defendant stated that it was also offering the report as a defense to the plaintiffs claim of undue delay. The plaintiff objected on the grounds of lack of opportunity to cross-examine the author and relevance, as the examination was performed for the plaintiffs 1999 shoulder injury. The commissioner overruled the plaintiffs objection and admitted the report “only so far as it is relevant to the wrist and hand injury and to the issue of undue delay . . . .”

In her findings, under a heading entitled “Temporary Total Disability Benefits,” the commissioner referred to the conclusions reached by each physician in the three independent medical reports. On appeal, the plaintiff argues that she was deprived of her procedural due process rights when the reports were admitted without providing her with an opportunity to cross-examine their authors. She further argues that this violation caused her to suffer prejudice, as the commissioner relied on the reports in denying the plaintiffs claim for temporary partial disability benefits as well as other unspecified claims.

Administrative hearings, such as those held before a workers’ compensation commissioner, are informal and are not bound by the common-law or statutory rules of evidence and procedure. Bryan v. Sheraton-Hartford Hotel, 62 Conn. App. 733, 740, 774 A.2d 1009 (2001); see General Statutes § 31-298. Instead, “the commissioner . . . shall make inquiry in a manner that is best calculated to ascertain the substantial rights of the parties.” Parisi v. Yale University, 89 Conn. App. 716, 723, 874 A.2d 852 (2005). “Nonetheless, procedural due process is a requirement of adjudicative administrative hearings, including those held before workers’] compensation commissioners . . . .” Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 177, 355 A.2d 227 (1974). “Due process of law requires not only that there be due notice of the hearing but that at the hearing the parties involved have a right to produce relevant evidence, and an opportunity to know the facts on which the agency is asked to act, to cross-examine witnesses and to offer rebuttal evidence. Huck v. Inland Wetlands & Watercourses Agency, [203 Conn. 525, 536, 525 A.2d 940 (1987)] . . . .” (Citation omitted; internal quotation marks omitted.) Bryan v. Sheraton-Hartford Hotel, supra, 740. “[A]dmission of hearsay material such as letters [or reports] without an opportunity to cross-examine is ordinarily a deprivation of procedural due process.” Balkus v. Terry Steam Turbine Co., supra, 177. This court will not disturb the commissioner’s finding, however, when there is sufficient evidence to support it independent of that hearsay evidence. Id., 177-78; see Barron v. City Printing Co., 55 Conn. App. 85, 91, 737 A.2d 978 (1999).

Here, the defendant proffered the reports in support of its defense to the claim of undue delay and unreasonable contest. The plaintiff objected, specifically citing the lack of opportunity for cross-examination. The commissioner then admitted the three reports limited to the issue of undue delay. For this limited purpose the reports were not inadmissible as hearsay because they were not offered to prove the truth of the content of the reports. See Conn. Code Evid. § 8-1 (3); Dinan v. Marchand, 279 Conn. 558, 572, 903 A.2d 201 (2006). The defendant explicitly offered the reports “to prove . . . what Travelers [Property and Casualty] did and what they were told in the course of this case.” Therefore, the reports were admitted properly as to the issue of undue delay.

As the board recognized in its decision, it was undisputed that the evidentiary use of the three reports was limited solely to the plaintiffs claim of undue delay. Yet, a review of her findings indicates that the commissioner used the three reports substantively to decide the plaintiffs entitlement to temporary partial disability benefits. Thus, the reports were considered beyond the limited purpose for which they were admitted, namely, for the issue of undue delay. This was improper. Damick v. Planning & Zoning Commission, 158 Conn. 78, 80-81, 256 A.2d 428 (1969) (improper for court to use evidence in its findings beyond limited scope for which it permitted evidence to be introduced); see State v. Thompson, 266 Conn. 440, 476-77, 832 A.2d 626 (2003) (improper for prosecutor to use admissible prior inconsistent statement for substantive purposes when such use was beyond scope of admissibility); C. Tait & E. Prescott, Connecticut Evidence (4th Ed. 2008) § 1.27.2, p. 70 (evidence admitted for limited purpose cannot be used for another purpose). In considering the reports for substantive purposes, the commissioner deprived the plaintiff of her right to due process. See Bryan v. Sheraton-Hartford Hotel, supra, 62 Conn. App. 741. Nonetheless, such an error is harmless if the record reveals sufficient evidence, independent of the three reports, to support the board’s decision affirming the commissioner’s findings. See Parisi v. Yale University, supra, 89 Conn. App. 723 (no reversible error when board properly concluded commissioner had ample evidence to support dismissal of claim outside of contested evidence); Barron v. City Printing Co., supra, 55 Conn. App. 91 (board properly affirmed commissioner’s decision when commissioner’s findings supported by sufficient evidence independent of disputed letter).

Here, the commissioner evaluated the evidence and concluded that the weight of the medical authority did not support the award of temporary partial disability benefits. The board affirmed the commissioner’s decision, reasoning that it must defer to the commissioner’s evaluation of the contested evidence. In its decision, however, it referred to the commissioner’s substantive findings on the reports without noting their limited admissibility. Nonetheless, on the basis of the record before us, we conclude that there was sufficient evidence, absent the three reports, to substantiate the commissioner’s finding that the plaintiff was not entitled to temporary partial disability benefits. Specifically, the evidence before the commissioner included a report by the plaintiffs treating physician, dated January 17,2002, stating that the plaintiff had reached maximum medical improvement, had a permanent partial disability rating of 5 percent and could return to work in a light duty capacity. The evidence also included a report by Somogyi, in which he concluded that the plaintiff had reached maximum medical improvement, that the “present symptoms and functional limitations are out of proportion to the injury” and that she was capable of light work capacity with restrictions on the use of her right wrist. The plaintiffs treating physician wrote an additional report on November 21, 2002, maintaining his position that the plaintiff had reached maximum medical improvement and recommending that she continue her job search.

Temporary partial disability benefits under General Statutes § 31-308 (a) are available “until the injured worker has reached maximum medical improvement . . . .” 1 A. Sevarino, Connecticut Workers’ Compensation After Reforms (3d Ed. 2006) § 6.06.3, p. 970; see also Rayhall v. Akim Co., 263 Conn. 328, 332, 357-58, 819 A.2d 803 (2003) (plaintiff who sustained injury to more than one body part entitled to receive temporary partial disability benefits until all injured members achieve maximum medical improvement); Murray v. Mass Mutual Life Ins. Co., No. 4590 CRB-1-02-11 (November 20, 2003) (commissioner properly awarded plaintiff benefits pursuant to § 31-308 [a] when evidence established plaintiff had not reached maximum medical improvement). The only evidence that did not conclude that the plaintiff had reached maximum medical improvement were two reports from Arons. “The burden of proving entitlement to benefits under § 31-308 (a) rests on the claimant, and [t]he trial commissioner must decide whether a claimant has met that burden as a factual matter, and possesses the sole authority to determine which, if any, of the medical, documentary or testimonial evidence is reliable.” (Internal quotation marks omitted.) Shepard v. Wethersfield Offset, Inc., 98 Conn. App. 682, 687, 910 A.2d 993 (2006), cert. denied, 281 Conn. 911, 916 A.2d 51 (2007). We conclude, therefore, that the commissioner was presented with sufficient evidence, absent the contested reports, to determine that the plaintiff had reached maximum medical improvement and was therefore not entitled to disability benefits under § 31-308 (a).

II

The plaintiff next claims that the board improperly affirmed the commissioner’s denial of the plaintiffs motion to correct. We disagree.

In her motion to correct, the plaintiff requested that the commissioner amend her findings by separating her findings regarding the plaintiffs claim for attorney’s fees and interest from her findings regarding temporary partial disability benefits and that all references to the three independent medical examinations be deleted from the findings regarding the benefits. In total, the plaintiff sought the addition of eighty-nine findings to the commissioner’s findings of fact as well as the modification or deletion of nine additional findings. The commissioner denied the plaintiffs motion, noting that it was “nothing more than an attempt to reargue [the] case in a different light” rather than a request to correct specific findings. The board agreed with the commissioner that the motion to correct was an effort to reargue the case and concluded that the commissioner properly denied the motion. On appeal, the plaintiff argues that the commissioner failed to “delineate the separate issues,” that the three reports were used beyond their scope and, that, as a result, the commissioner committed reversible error. We disagree with the plaintiff.

In concluding that the board properly declined to order the commissioner to correct her findings, this court, in D’Amico v. Dept. of Correction, 73 Conn. App. 718, 812 A.2d 17 (2002), cert. denied, 262 Conn. 933, 815 A.2d 132 (2003), noted: “We will not change the finding of the commissioner unless the record discloses that the finding includes facts found without evidence or fails to include material facts which are admitted or undisputed. ... It [is] the commissioner’s function to find the facts and determine the credibility of witnesses . . . and a fact is not admitted or undisputed merely because it is uncontradicted. ... A material fact is one that will affect the outcome of the case.” (Citation omitted; internal quotation marks omitted.) Id., 727-28. Thus, a motion to correct is properly denied when the additional findings sought by the movant would not change the outcome of the case. See Brinson v. Finlay Bros. Printing Co., No. 4307 CRB-1-00-10 (November 1, 2001), aff'd, 77 Conn. App. 319, 823 A.2d 1223 (2003); Fusco v. J. C. Penney Co., No. 1952 CRB-4-94-1 (March 20, 1997).

Here, the plaintiffs motion to correct sought to conform the commissioner’s findings to the plaintiffs version of the facts. It is the commissioner, however, who has the discretion to determine the facts. See Chesler v. Derby, 96 Conn. App. 207, 220, 899 A.2d 624, cert. denied, 280 Conn. 909, 907 A.2d 88 (2006). Because the findings and the award of the commissioner were supported by the evidence and included all material facts, we conclude that the board properly affirmed the commissioner’s denial of the plaintiffs motion to correct. See id., 220-21; D’Amico v. Dept. of Correction, supra, 73 Conn. App. 728-30.

Ill

The plaintiffs final claim is that the board improperly affirmed the commissioner’s determination that the plaintiff had not suffered a compensable recurrence or relapse under § 31-307b. We decline to review this claim because the plaintiff has failed to provide us with an adequate record for review.

As is always the case, the appellant, here the plaintiff, bears the burden of providing a reviewing court with an adequate record for review. See Cable v. Bic Corp., 270 Conn. 433, 442, 854 A.2d 1057 (2004). This burden applies equally to the appellant in workers’ compensation cases. See id. It is well settled that the role of this court “is not to guess at possibilities, but to review claims based on a complete factual record developed by a [fact finder]. . . . Without the necessary factual and legal conclusions furnished by the [fact finder] . . . any decision made by us respecting [an appellant’s claim] would be entirely speculative. ... It is, therefore, the responsibility of the [appellants] to move for an articulation or clarification of the record when the [fact finder] has failed to state the basis of a decision. . . . [W]here the trial court’s decision is ambiguous, unclear or incomplete, an appellant must seek an articulation ... or this court will not review the claim.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Manifold v. Ragaglia, 94 Conn. App. 103, 124-25, 891 A.2d 106 (2006).

The issue of whether the plaintiff suffered a recurrence or relapse was not among the issues before the commissioner at the formal hearing. Although it was mentioned in passing by the defendant’s counsel, the commissioner did not make any findings with regard to the issue. The plaintiff listed the issue of entitlement to benefits under § 31-307b in her appeal to the board. The board, however, did not address this claim in its decision affirming the findings and award of the commissioner, and the plaintiff did not file a motion for articulation. Thus, we are left without an adequate record for review of this claim. See Bragdon v. Sweet, 102 Conn. App. 600, 605, 925 A.2d 1226 (2007).

The fact that the plaintiff filed a motion to correct requesting the addition of findings regarding the plaintiffs alleged recurrence or relapse does not relieve the plaintiff of her duty to provide an adequate record for our review. Our Supreme Court, in Cable v. Bic Corp., supra, 270 Conn. 433, concluded that in workers’ compensation cases, motions for articulation are not synonymous with motions to correct. Id., 446. The court reasoned that motions to correct are “the proper vehicle for requesting corrections or additions to the factual findings based upon the evidence in the record [whereas] motions for articulation generally are employed when the basis of the commissioner’s conclusion is unclear.” (Citation omitted; internal quotation marks omitted.) Id. The court noted that although motions for articulation are not specifically provided for in the regulations, such motions previously have been considered and granted by workers’ compensation commissioners as well as by the board. Id., 444. Here, in the absence of an articulation, we are unable to determine whether the commissioner addressed this particular claim. Accordingly, we decline to review this claim. See Stiffler v. Continental Ins. Co., 288 Conn. 38, 52-53, 950 A.2d 1270 (2008); Manifold v. Ragaglia, supra, 94 Conn. App. 125.

The plaintiff also argues that the commissioner improperly denied the plaintiffs motion to correct on the issue of whether the plaintiff had suffered a recurrence or relapse. As we concluded in part II, the findings and award of the commissioner were supported by the evidence and included all the material facts. The commissioner, therefore, properly denied the motion to correct. See Chesler v. Derby, supra, 96 Conn. App. 220-21. To the extent that the plaintiff sought the reasoning for the commissioner’s omission of this issue from her findings of fact, the plaintiff should have filed a motion for articulation. See Cable v. Bic Corp., supra, 270 Conn. 444. Therefore, we cannot conclude that the commissioner improperly denied the plaintiffs motion to correct.

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       The plaintiff had also suffered a compensable injury to her right shoulder in 1999. This injury is not at issue in the present appeal.

       Travelers Property and Casualty, the insurance carrier for C. R. Gibson Company, also was named as a defendant. For simplicity, we refer in this opinion to C. R. Gibson Company as the defendant.

       “Form 36 is a notice to the compensation commissioner and the claimant of the intention of the employer and its insurer to discontinue compensation payments. The filing of this notice and its approval by the commissioner are required by statute in order properly to discontinue payments. General Statutes §§ 31-296, 31-296a, 31-300.” (Internal quotation marks omitted.) D’Amico v. Dept. of Correction, 73 Conn. App. 718, 720 n.2, 812 A.2d 17 (2002), cert. denied, 262 Conn. 933, 815 A.2d 132 (2003).

         An arthrogram is defined as "[ijmaging of a joint following the introduction of a contrast agent into the joint capsule to enhance visualization of the intraarticular structures.” Stedman’s Medical Dictionary (27th Ed. 2000) p. 150.

       We note that in her motion to correct, the plaintiff requested that the commissioner add, delete or modify ninety-eight facts in the commissioner’s findings of fact. Similarly, in the plaintiffs appeal to the board, she listed sixteen “reasons of appeal.” As this court has noted previously when a multitude of issues are raised on appeal, “pursuit of so large a number of issues forecloses the opportunity for a fully reasoned discussion of pivotal substantive concerns [by the plaintiff]. A shotgun approach does a disservice both to this court and to the party on whose behalf it is presented. . . . Multiplicity hints at lack of confidence in any one [issue] . . . .” (Citation omitted; internal quotation marks omitted.) LaBow v. LaBow, 65 Conn. App. 210, 211, 782 A.2d 200, cert. denied, 258 Conn. 943, 786 A.2d 430 (2001).

       The record and transcript of the formal hearing clearly indicate that the plaintiff sought and both parties addressed the issuance of temporary partial disability benefits. We therefore conclude, as did the board, that the reference to temporary total disability benefits is a scrivener’s error. See Wooten v. Heisler, 82 Conn. App. 815, 821 n.5, 847 A.2d 1040 (2004).

       The plaintiff appears to raise a claim regarding the defendant’s need to file a form 36 stating that she had reached maximum medical improvement. We do not reach this claim, however, as the plaintiff has failed to brief the issue adequately. See Rock Rimmon Grange #142, Inc. v. The Bible Speaks Ministries, Inc., 112 Conn. App. 1, 7-8, 961 A.2d 1012 (2009). To the extent that the plaintiff is arguing that notice of the filing of the February 19, 2002 form 36 was improper, we note that she received a full evidentiary hearing on that form 36. See Krol v. A. V. Tuchy, Inc., No. 4613 CRB 4-03-1 (January 29, 2004), aff'd, 90 Conn. App. 346, 876 A.2d 597 (2005) (full evidentiary hearing on subject of form 36 renders moot any alleged procedural deficiencies regarding form 36).

       General Statutes § 31-307b provides in relevant part: “If any employee who receives compensation under section 31-307 returns to work after recovery from his or her injury and subsequently suffers total or partial incapacity caused by a relapse from the recovery from, or a recurrence of, the injury, the employee shall be paid a weekly compensation . . . .”


author: HARPER, J.

text:
    STATE OF CONNECTICUT v. STANLEY BENJAMIN
    (AC 29170)
    McLachlan, Harper and Schaller, Js.

      Argued January 13
    officially released May 5, 2009

      Glenn W. Falk, special public defender, for the appellant (defendant).

      Robert J. Scheinblum, senior assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Pamela J. Esposito, assistant state’s attorney, for the appellee (state).
   Opinion

HARPER, J.

The defendant, Stanley Benjamin, appeals from the judgment of the trial court revoking his probation pursuant to General Statutes § 53a-32, and the judgment of conviction, rendered following a jury trial, of possession of narcotics in violation of General Statutes § 21a-279. The defendant claims that insofar as it is based on the court’s finding that he assaulted an elderly person, the judgment revoking his probation should be set aside because (1) the evidence did not support the court’s finding and (2) the court, in making such finding, relied on evidence that it should have suppressed. We affirm the judgments of the trial court.

The record reveals the following facts and procedural history, which are not in dispute. The defendant was convicted of selling narcotics and, in 2003, was sentenced to a five year term of incarceration, execution suspended after one year, followed by three years of probation. In 2003, the defendant was released from incarceration, signed a conditions of probation form and began serving his probation. As is customary, one of the conditions of the defendant’s probation was that he not violate any law of the state of Connecticut. On two subsequent occasions, the court extended the defendant’s term of probation following the defendant’s violation of the conditions of his probation. Those events are not germane to this appeal.

On June 10,2006, while the defendant was serving his probation, he was arrested and charged, under docket number CR-06-216449-S (criminal case), with possession of narcotics, assault of an elderly person in the third degree and attempt to commit robbery in the second degree. Following the defendant’s arrest, the defendant was charged, under docket number CR-02-182546-S (violation of probation case), with having violated the terms of his probation by engaging in criminal conduct on June 10, 2006. The court granted the state’s motion to consolidate the violation of probation case and the criminal case.

During jury deliberations in the criminal case, the court orally set forth its finding that the defendant had violated his probation by engaging in criminal conduct. The court found that on June 10, 2006, the defendant possessed narcotics and committed an assault on an elderly person, as alleged by the state in the criminal case.

The jury found the defendant guilty of the narcotics charge but found him not guilty of the assault charge. Prior to sentencing in the criminal case, the court heard evidence in the dispositional phase of the violation of probation case. Following that proceeding, the court found that the beneficial purposes of probation were no longer being served. After hearing argument as to the proper sentence, the court noted that the defendant, aged fifty-three years, had an extensive record of criminal activity that spanned nearly his entire adult life and that prior efforts at rehabilitation had not yielded positive results. The court deemed the defendant’s presentence investigation report “one of the worst” that it had ever reviewed. The court also discussed the criminal activity at issue, possession of narcotics and assault. The court viewed that criminal conduct as evidence that the defendant had not made any progress toward becoming a law-abiding person.

In the violation of probation case, the court sentenced the defendant to serve four years of his unexecuted sentence. As a result of the conviction in the criminal case, the court sentenced the defendant to a three year term of incarceration. The court ordered that the sentence in the criminal case run consecutively to the sentence in the violation of probation case, resulting in a total effective term of imprisonment of seven years. This appeal followed.

The defendant claims that the evidence did not support the court’s finding in the violation of probation case that he had committed an assault of an elderly person. The defendant also claims that the court improperly denied his motion to suppress identification evidence presented by the state, which was relevant only with regard to the assault charge. The defendant has not raised any claim in this appeal related to his conviction of possession of narcotics. Likewise, he has not raised any claim in this appeal related to the court’s finding, made during the adjudicative phase of the violation of probation case, that he possessed narcotics unlawfully. The defendant requests that insofar as it is related to the court’s finding that he engaged in assaultive conduct, the judgment revoking his probation should be set aside. The defendant requests that we remand the case to the trial court “for resentencing based exclusively on the possession of narcotics [finding].”

In light of the court’s findings and the claims raised in the defendant’s appeal, it is unnecessary for us to reach the merits of the defendant’s claims. In a recent decision, this court declined to address a defendant’s claim that one of a trial court’s findings in the adjudicative phase of a violation of probation proceeding was not supported by the evidence. State v. Wells, 112 Conn. App. 147, 156-58, 962 A.2d 810 (2009). In Wells, the trial court found that the defendant had violated his probation, first, by engaging in criminal conduct during a shooting and, later, by engaging in criminal conduct when the police were investigating the earlier shooting. Id., 149-50. On appeal, the defendant challenged the court’s findings that he had engaged in criminal conduct during both of these separate incidents. Id., 148. This court concluded that, insofar as the appeal related to the propriety of the court’s finding that the defendant had engaged in criminal conduct at the time that the police were investigating the shooting, the appeal had become moot. Id., 154-55. This conclusion was based on the fact that the defendant, following a separate criminal proceeding, had been convicted of that criminal conduct, the conviction had been affirmed by this court on direct appeal and our Supreme Court had denied the defendant’s petition for certification to appeal from this court’s decision. Id., 154. This court declined to review the claim related to the trial court’s finding that the defendant had engaged in criminal conduct during the shooting. Id., 156.

The reasoning set forth in Wells is instructive: “This court has observed that to support a judgment of revocation of probation, ‘[o]ur law does not require the state to prove that all conditions alleged were violated; it is sufficient to prove that one was violated.’ State v. Widlak, 74 Conn. App. 364, 370, 812 A.2d 134 (2002), cert. denied, 264 Conn. 902, 823 A.2d 1222 (2003); see also State v. Quinones, 92 Conn. App. 389, 391, 885 A.2d 227 (2005), cert. denied, 277 Conn. 904, 891 A.2d 4 (2006). In Widlak, the defendant appealed from the judgment of the trial court revoking his probation. State v. Widlak, supra, 365. The trial court found that the defendant had violated the conditions of his probation in five distinct ways, including failing to report to his probation officer as directed and violating criminal laws. Id., 368-69. On appeal, however, the defendant challenged the court’s findings only insofar as they related to one of the five violations found by the court. Id., 369. This court declined to review the claim, reasoning that the issue raised was ‘not relevant to [its] determination as to whether the court properly revoked [the defendant’s] probation. That is because the court’s finding [challenged by the defendant on appeal] was not the sole basis for its conclusion that he violated the terms of his probation. . . . [T]hat conduct was one of five grounds on which the court based its judgment.’ Id., 369-70.

“This rationale has been followed in other decisions of this court. Notably, in State v. Payne, 88 Conn. App. 656, 870 A.2d 1159, cert. denied, 274 Conn. 903, 876 A.2d 13 (2005), the defendant appealed from the judgment of the trial court revoking his probation. The trial court found that the defendant had violated his probation in two distinct ways in that he directed threats toward two different victims. Id., 659. On appeal, the defendant claimed that the court improperly admitted evidence that was relevant to the court’s finding with regard to the defendant’s conduct toward one of these victims. Id. This court declined to address the defendant’s claim, reasoning that the court’s finding with regard to the defendant’s conduct toward the other victim was sufficient to support a finding that he had violated his probation. Id., 660. This court stated: ‘[Additional findings, although made, were not necessary to support the court’s decision.’ Id.

“Similarly, in State v. Theoferlius D., 93 Conn. App. 88, 89, 888 A.2d 118 (2006), aff'd sub nom. State v. T.D., 286 Conn. 353, 944 A.2d 288 (2008), the defendant appealed from the judgment of the trial court revoking his probation. The court found that the defendant had violated the conditions of his probation by failing to register as a sex offender and by failing to complete a treatment program. Id., 90. On appeal, the defendant challenged the court’s admission of evidence relating to each of these distinct violations of probation. Id., 92-93. This court rejected on its merits the defendant’s claim that the trial court improperly admitted evidence relating to his failure to register as a sex offender. Id., 93. Although this court, to some extent, addressed the remaining evidentiary claim, it noted that its rejection of the first claim ‘rendered] unnecessary any consideration of [that second] claim.’ Id.” State v. Wells, supra, 112 Conn. App. 156-58.

The rationale set forth in Wells and the cases cited therein clearly apply to the present case. Those decisions undermine the defendant’s request that we set aside the judgment of revocation in part, even though a sufficient basis to support that judgment remains unchallenged. There is no controversy as to whether the defendant engaged in criminal conduct by possessing narcotics. That criminal conduct amply supported the court’s judgment of revocation. See General Statutes § 53a-32 (authorizing court to revoke sentence of probation for any violation of conditions of probation).

Further, these decisions also undermine the defendant’s assertion that, if we conclude that the court’s finding concerning the assault charge was improper, we should remand the case for resentencing based solely on the possession of narcotics finding. Our thorough review of the defendant’s brief reveals that with regard to the issue of resentencing, the defendant has done no more than to request such relief after analyzing his claims. During oral argument before this court, the defendant’s attorney, for the first time, set forth a basis for such relief by suggesting that the court’s finding that the defendant had engaged in assaultive conduct may have affected the severity of the court’s sentence. Accordingly, we are presented with a claim concerning the sentencing portion of the proceeding that was not analyzed in the defendant’s brief, was discussed by the defendant for the first time during oral argument and appears to be based on speculation as to how the court might have sentenced the defendant if it had not made some of the findings that it had made. When presented with claims of a similar nature, related to the issue of resentencing in violation of probation cases, this court has declined to review them. See State v. Widlak, supra, 74 Conn. App. 370-71; State v. Holmes, 70 Conn. App. 4, 5 n.2, 796 A.2d 561 (2002); cf. State v. Johnson, 75 Conn. App. 643, 817 A.2d 708 (2003). In light of the claims raised by the defendant in this appeal and the basis of the court’s judgment, we deem it unnecessary to reach the merits of the defendant’s claims.

The judgments are affirmed.

In this opinion the other judges concurred.

       The court’s oral decision concerning the acjjudicative phase of the violation of probation proceeding appears within the certified transcripts of the proceedings at trial. The record, however, does not contain a signed transcript of the court’s decision as is required by Practice Book § 64-1 (a). “It is the responsibility of the appellant to provide an adequate record for review. The appellant shall determine whether the entire trial court record is complete, correct and otherwise perfected for presentation on appeal. . . Practice Book § 61-10. The record does not reflect that the defendant attempted to remedy this defect pursuant to Practice Book § 64-1 (b). This defect in the record, however, does not hamper our review because we readily are able to identify in the transcript of proceedings a sufficiently detailed and concise statement of the court’s findings. See State v. Brunette, 92 Conn. App. 440, 446, 886 A.2d 427 (2005), cert. denied, 277 Conn. 902, 891 A.2d 2 (2006).

       The state withdrew the robbery charge during the trial.

       During oral argumentbefore this court, the defendant’s attorney acknowledged that the trial court’s finding that the defendant possessed narcotics was a sufficient basis for the court’s decision to revoke probation.

       The defendant in Johnson appealed from the judgment of the trial court revoking his probation and imposing a three year term of incarceration. State v. Johnson, supra, 75 Conn. App. 643. During the revocation proceeding, the trial court took into consideration the defendant’s repeated refusal to sign forms outlining his conditions of probation. Id., 659. This court determined that there was an irregularity in these forms, however, in that they did not accurately describe the conditions of probation imposed by the court at the time of sentencing. Id., 659-60. This court concluded that the trial court’s specific reliance on the defendant’s refusal to sign forms that were incorrect had implicated “[t]he fairness, integrity and public confidence in the judicial process . . . Id., 661. This court reversed the judgment of revocation only as to the sentence imposed and remanded the case to the trial court with direction to resentence the defendant. Id. Johnson is distinguishable from the present case, both in terms of its unique facts, involving “an error in the exemplification of a court order,” and because the defendant in Johnson adequately briefed a claim related to the sentencing phase of the violation of probation proceeding. See id., 660 n.7.


author: PELLEGRINO, J.

text:
    ORONOQUE SHORES CONDOMINIUM ASSOCIATION NO. 1, INC. v. DOROTHY A. SMULLEY ET AL.
    (AC 29916)
    Gruendel, Harper and Pellegrino, Js.

      Argued February 18
    officially released May 5, 2009

      James H. Lee, for the appellant (named defendant).

      Marie A. Casper, with whom was Brian E. Tims, for the appellee (plaintiff).
   Opinion

PELLEGRINO, J.

The defendant Dorothy A. Smulley, a unit owner in the Oronoque Shores condominium complex in Stratford, appeals from the judgment of the trial court foreclosing a lien for unpaid common charges, unpaid special assessments and attorney’s fees in this action brought by the plaintiff, Oronoque Shores Condominium Association No. 1, Inc. (association). The contested issues before the trial court, and the subject of this appeal, concern the levy of two special assessments, both as to their validity and enforceability, and the award of attorney’s fees pursuant to General Statutes § 47-258 (g). On appeal, the defendant claims that (1) both special assessments were incorrectly apportioned, thereby rendering them invalid, (2) notice of the special litigation assessment was improperly published and (3) because the special assessment liens were invalid, the association was not a prevailing party and, therefore, not entitled to an award of attorney’s fees. This court does not agree and, accordingly, affirms the judgment of the trial court.

The following facts found by the court are relevant to the disposition of the defendant’s appeal. The association levied two special assessments, one for additional costs incurred for snow removal (snow assessment) and the other for a fund to pay for litigation expenses (litigation assessment) to contest a zoning application of an adjacent landowner, which would adversely affect the complex. The association imposed the snow assessment on all unit owners for the additional cost of snow removal for the winter of 2004-2005, as the cost exceeded the amount the association originally had budgeted. In calculating the snow assessment, the association incorrectly apportioned the amount to each unit owner equally, instead of on the basis of each unit owner’s proportional percentage of interest in the common elements of the complex pursuant to its bylaws. After the commencement of this action, the association correctly reapportioned the snow assessment on the basis of each unit owner’s proportional percentage of interest in the common elements, which reduced the amount owed by the defendant. The court held that the correction cured the apportionment issue and that the snow assessment hen was valid.

The association imposed the litigation assessment after learning that an adjacent landowner had submitted an application to the planning and zoning commission of the town of Stratford to construct a new access road, which would involve truck traffic passing next to a portion of the complex. The association provided notice to all unit owners that it would hold a special meeting to discuss the adjacent landowner’s zoning application. The defendant attended the meeting, and the minutes from the meeting reflect that all parties were provided the opportunity to speak. A resolution to obtain legal counsel to represent the association was voted on and unanimously approved by voice vote. Additionally, a second resolution to assess each unit owner $500 to cover the anticipated litigation costs unanimously was approved by voice vote. The defendant acknowledged in a letter to the association that both the snow assessment and the litigation assessment were due and owing. The court held that the litigation assessment was valid but reduced the amount owed by the defendant to her proportional percentage of interest in the common elements. After a trial, the court rendered judgment in favor of the association and awarded it attorney’s fees as the prevailing party. From that judgment, the defendant now appeals.

We first set forth our standard of review. “The interpretation of a condominium’s declaration presents a question of law.” Stamford Landing Condominium Assn., Inc. v. Lerman, 109 Conn. App. 261, 267, 951 A.2d 642, cert. denied, 289 Conn. 938, 958 A.2d 1246 (2008). “We also conduct plenary review of corporate articles and bylaws.” Bella Vista Condominium Assn., Inc. v. Byars, 102 Conn. App. 245, 248, 925 A.2d 365 (2007). Our standard of review is thus plenary.

I

The defendant first claims that the snow assessment was not a valid lien because it did not conform with General Statutes §§ 47-76 (b) and 47-257 (b), as well as the Oronoque Shores Condominium No. 1, Inc., bylaws, §11 (a), and, accordingly, could not have been foreclosed. Specifically, the defendant claims that (1) the original snow assessment was invalid because it was improperly apportioned, (2) the correctly reapportioned assessment was invalid because the association’s board did not vote on it and (3) the corrected reapportioned snow assessment was not pleaded or litigated at trial. We disagree.

We start with the defendant’s argument that the snow assessment was invalid ab initio, and, therefore, the reapportionment could not make the snow assessment valid. Specifically, the defendant states that the original snow assessment was not valid because it was not calculated on the basis of the proportional percentage of each unit owner’s interest in the common elements but, rather, was divided equally, in violation of § 47-76 (b) and § 11 (a) of the condominium bylaws. The defendant argues, therefore, that a correction to the original invalid assessment does not make the snow assessment valid because it was never valid to begin with, and, further, the correction could not be a new assessment because it was not voted on by the board.

A

The defendant first argues that the original assessment was invalid because it was not apportioned properly. The unit owners had been notified that a snow assessment could be assessed in the future if the budget was exceeded and when that did occur, the board imposed the assessment. The defendant concedes that this was legal and to be expected. She argues, however, that merely because of the incorrect apportionment, the assessment should be considered void. We disagree. The snow assessment was forewarned, properly imposed and voted on by the board and within the association’s authority to impose. See General Statutes § 47-244 (a) (2); Oronoque Shores Condominium No. 1, Inc., bylaws, § 11 (a). Accordingly, the steps taken in imposing the original snow assessment were proper, and the snow assessment, as the total overrun of snowplowing costs, was valid.

B

The defendant further argues that the board was required to reconvene to vote on the corrected apportionment of the snow assessment to make the corrected assessment valid. The defendant claims that because the board did not do so, there is still no valid snow assessment to create a lien on which the association can foreclose. The snow assessment calculated by the association was the total amount of the overrun in the snowplowing costs. The only error was that the association initially improperly apportioned the total snow assessment equally among the unit owners rather than in proportion to their individual percentage interest in the common elements. We must note that there is a difference between the validity of the snow assessment, that is, the power of the association to impose the assessment, and the manner in which it was apportioned. The apportioning of the snow assessment to each unit owner is a ministerial task, which does not affect the validity of the snow assessment itself. See Birnie v. Electric Boat Corp., 288 Conn. 392, 394 n.1, 953 A.2d 28 (2008) (application of simple mathematical formula to calculate award under General Statutes § 31-306 ministerial task); Smith v. Yurkovsky, 265 Conn. 816, 820, 830 A.2d 743 (2003) (undertaking basic mathematical computation to calculate average weekly working hours, not exercising independent judgment or discretion, ministerial task).

In the present matter, the court found that the snow assessment was proper, and the defendant has not argued or briefed either that the association could not impose the assessment for the overage in the snow costs or that the amount of the total overrun was inaccurate or invalid. Accordingly, we consider only the ministerial apportionment of each owner’s percentage of the snow assessment. See Hare v. McClellan, 234 Conn. 581, 588 n.5, 662 A.2d 1242 (1995) (court will not consider issues not raised by parties). The association subsequently agreed with the defendant that the snow assessment should be apportioned on the basis of the unit owner’s proportional percentage of interest, which then led to a reduction of the defendant’s assessment. The court noted in its decision that the defendant acknowledged that the snow assessment was due and owing and, further, that the defendant’s postrue at trial was at variance with her admission that the snow assessment was due and owing. As the snow assessment was valid and the calculation to correct the apportionment to each owner was ministerial, the defendant’s argument that the snow assessment was invalid has no merit.

C

Last, the defendant argues that the corrected snow assessment was neither pleaded nor litigated and, therefore, cannot be valid and foreclosed upon. The association did allege in its complaint that it had a valid lien for “special assessments.” The snow assessment was pleaded and certainly was litigated. Even if there is a pleading deficiency as is argued by the defendant, the court can decide a case on the basis on which it is litigated. See Stamford Landing Condominium Assn., Inc. v. Lerman, supra, 109 Conn. App. 273-75 (holding common fees and late charges not pleaded but litigated were owed whereas garage assessment not pleaded or litigated not owed). The issue of the validity of the snow assessment was thoroughly litigated in this case.

We conclude, therefore, that the court properly determined that the snow assessment was a valid hen and that the association could foreclose on it on the basis of nonpayment.

II

The defendant next claims that the litigation assessment was invalid because (1) notice of the special meeting in which the litigation assessment was voted on was not proper and (2) it was not calculated in proportion to the percentage of interest each unit owner had in the common elements of the complex but, rather, was divided equally. The defendant, in her brief, states that she does not challenge the court’s factual findings but, rather, challenges its legal reasoning. Accordingly, our review is plenary. See Bella Vista Condominium Assn., Inc. v. Byars, supra, 102 Conn. App. 248.

The court found that the notice provision in the condominium bylaws was not strictly adhered to. Lack of notice, however, was not the court’s only inquiry. In its memorandum of decision, the court cited Twenty-Four Merrill Street Condominium Assn., Inc. v. Murray, 96 Conn. App. 616, 622, 902 A.2d 24 (2006), for the proposition that notice is a concept of fundamental fairness and not a rigid concept. Accordingly, the court found that because the defendant knew the purpose of the special meeting, attended the meeting in which the litigation assessment was approved by unanimous voice vote and later in a letter acknowledged that she owed the litigation assessment, the court would not invalidate the assessment on the basis of defective notice. The court then exercised its equitable jurisdiction and reduced the amount the defendant owed to her proportional share.

In Twenty-Four Merrill Street Condominium Assn., Inc., the defendant challenged whether the plaintiff provided him proper notice of its decision to levy an assessment. The court held that the statutory lien at issue was not invalid because no prejudice attached to the defendant by receiving late notice of the plaintiffs assessment. Id., 625. The court stated: “The concept of notice concerns notions of fundamental fairness, affording parties the opportunity to be apprised when their interests are implicated in a given matter. . . . Notice is not a rigid concept. Section two of the Restatement (Second) of Judgments, entitled ‘Adequate Notice,’ states in relevant part that ‘[a]n action may proceed without notice to a person interested therein when . . . (c) [t]he person is afforded an adequate subsequent opportunity to protect his interest.’ 1 Restatement (Second), Judgments § 2 (4) (c), p. 34 (1982). It further explains that ‘[t]he modem approach to notice-giving attaches primary importance to actual notice and treats technical compliance with notice procedures as a secondary consideration. ... To invalidate the notice simply because it is irregular is to protect no worthwhile interest of the party who has raised the objection. He has had his due. An objection to the notice on his part serves only to induce concern for punctilious adherence to formality ....’” (Citations omitted.) Twenty-Four Merrill Street Condominium Assn., Inc. v. Murray, supra, 96 Conn. App. 622-23.

Our review of the record leads us to the conclusion that the association did not strictly adhere to the notice requirement of the condominium bylaws; however, the defendant was provided adequate notice that the special meeting was to gather information about the adjacent landowner’s application to construct a roadway near the condominium complex. The information gathered at the meeting was to be used by the association to make a presentation to the planning and zoning commission regarding the association’s position on the application. Further, the defendant attended the meeting in which the minutes indicate that most participants asked at least one question, and the litigation assessment was unanimously passed by voice vote. Additionally, the defendant sent a letter to the association admitting that the debt was owed. Moreover, the court reduced the amount of the litigation assessment owed by the defendant so that the assessment was in accordance with the condominium bylaws. The court ordered that the defendant pay not an equal amount but, rather, her proportional share that was based on her interest in the common elements.

Pursuant to Twenty-Four Merrill Street Condominium Assn., Inc., we conclude that a mere technical deficiency in the notice does not invalidate the litigation assessment. See id., 622. Although the notice provided to the defendant was improper, notice is based on the concept of fundamental fairness, and the defendant was afforded the opportunity to be apprised of her interest with regard to the litigation assessment, and she had her due. See id., 622-23. Accordingly, we conclude that the court properly determined that the litigation assessment was valid.

Ill

Last, it is the defendant’s claim that because the liens were invalid, the association had no claim for attorney’s fees. Because we find that the liens were valid, the court properly awarded attorney’s fees to the prevailing party under § 47-258 (g). The special assessments were valid, but the defendant refused to pay them. The court properly determined that the association, as the prevailing party, was entitled to reasonable attorney’s fees.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although several subsequent encumbrancers also were named as defendants, they are not parties to this appeal. We therefore refer to Smulley in this opinion as the defendant.

       At trial, the other contested issues were the nonpayment of two months of common charges and the defendant’s counterclaim for water damage caused to her unit. Both of these issues were resolved in favor of the association, and the defendant does not appeal from that portion of the judgment.

       General Statutes § 47-76 (b) provides in relevant part: “Funds for the payment of current common expenses and . . . for improvements, replacements and additions shall be obtained by assessments against the unit owners in proportion to their percentage interests in the common element . . . .”

         General Statutes § 47-257 (b) provides in relevant part: “Except for assessments under subsections (c), (d) and (e) of this section, all common expenses shall be assessed against all units in accordance with the allocations set forth in the declaration pursuant to subsections (a) and (b) of section 47-226. . . .”

       Section 11 (a) of the plaintiffs bylaws provides in relevant part: “The association shall from time to time, and at least annually . . . determine the amount of the common charges payable by the unit owners to meet the common expenses of the [c]ondominium, and allocate and assess such common expenses and charges among the unit owners in proportion to their percentage interests in the common elements. . . . The common expenses may also include such amounts ... to make up any deficit in the common expenses for the prior year.”

       General Statutes § 47-244 (a) provides in relevant part: “ [T]he association . . . may ... (2) [a]dopt and amend budgets for revenues, expenditures and reserves and collect assessments for common expenses from unit owners .. . .”

       Section 11 (a) of the condominium bylaws provides in relevant part: “The association shall from time to time, and at least annually, prepare a budget for the [condominium, determine the amount of the common charges payable by the unit owners to meet the common expenses of the [c] ondominium . . . and to make up any deficit in the common expense for the prior year.”

       General Statutes § 47-258 (g) provides: “A judgment or decree in any action brought under this section shall include costs and reasonable attorney’s fees for the prevailing party.”

       In her reply brief, the defendant does not challenge the amount of the attorney’s fees. She acknowledges that the amount of attorney’s fees are in the sound discretion of the court but, rather, argues that the association is not entitled to any attorney’s fees if she prevails in this appeal.