Cahn v. Cahn

• Decision Date: 01 June 1993
• Docket Number: No. 14523,14523
• Citation: 626 A.2d 296,225 Conn. 666
• Court: Connecticut Supreme Court
• Parties: Bruce CAHN v. Florence CAHN.

Page 296

626 A.2d 296

225 Conn. 666

Bruce CAHN v. Florence CAHN.

No. 14523.

Supreme Court of Connecticut.

Argued Jan. 12, 1993.

Decided June 1, 1993.

William H. Narwold, with whom were Laura Welch Ray and, on the brief, C. Ian McLachlan and David D. Legere, Hartford, for appellant (defendant).

Sheldon A. Rosenbaum, with whom, on the brief, was Melinda S. Monson, Danbury, for appellee (plaintiff).

Before PETERS, C.J., and BORDEN, BERDON, NORCOTT and SANTANIELLO, JJ. SANTANIELLO, Justice.

The question posed by this certified appeal ¹ is whether the Appellate Court properly concluded that the mere filing of a motion for protective order by a nondeponent is a sufficient basis to exclude deposition testimony from evidence because the deposition was taken before the motion was heard. During the trial of the dissolution action filed by the plaintiff, Bruce Cahn, the defendant, Florence Cahn, gave notice of the depositions of three nonparty witnesses. Although the plaintiff thereafter filed a motion for protective order, the depositions were taken before the motion was heard and without the plaintiff being in attendance. The defendant now appeals the decision of the Appellate Court upholding the ruling of the trial court excluding the deposition testimony from evidence. We affirm.

The facts relevant to this appeal are as follows. ² Beginning in 1982, when the plaintiff had unsuccessfully attempted to obtain a divorce from the defendant in New York, the parties had been involved in contentious domestic litigation both in Connecticut and New York. The defendant had been responsible for delaying a subsequent dissolution action filed in Connecticut by failing to appear in court and by ignoring recommendations from the court. That action was withdrawn in 1987. Cahn v. Cahn, 26 Conn.App. 720, 721-23, 603 A.2d 759 (1992).

In February, 1989, the plaintiff instituted the present action in Connecticut. The parties were notified on May 10, 1990, that the action had been scheduled for trial on July 5 and 6, 1990. Cahn v. Cahn, supra, at 723, 603 A.2d 759. "On July 5, counsel for the defendant appeared without the defendant. The court assigned this case [to another judge] for a pretrial conference to determine if settlement was possible. The pretrial failed and the court instructed both sides to return the following day. The defendant did not appear on the morning of July 6, 1990, and the trial began without her. The defendant telephoned to state that she would be in court by the afternoon of July 6 and that she did not object to the trial continuing without her. The defendant arrived at approximately 3 p.m. that afternoon. The plaintiff was testifying when the defendant arrived in court. The court then allowed the defendant to take the stand out of order because the defendant claimed that she was having medical difficulties that could require surgery and prevent her from being present in court at a future date. The parties were not able to conclude the trial on July 6, 1990.

"After conferring with the parties, the court decided to continue the case until July 24, 1990. The defendant told the court that she had scheduled a medical procedure for July 23, 1990. The court told her that she should reschedule the procedure because the trial 'took precedence.' On July 24, the defendant again did not appear. Counsel for the defendant stated that she underwent medical procedures and was advised by her physicians not to travel for seven to ten days. Counsel for the defendant sought a continuance, which was granted, to September , 1990. The court ordered the defendant's counsel to bring a letter from the physician who performed the medical procedures for the defendant stating the reasons why the defendant could not be present in court on July 24 and whether these medical procedures were emergency procedures. On September 14, 1990, the defendant again did not appear in court. Counsel for the defendant presented a photocopy of a letter from the defendant's physician. According to the defendant's counsel, the physician met with the defendant on September 12, 1990, and faxed a letter to the defendant's counsel. The physician recommended that the defendant should not travel at this time and would need another eight weeks to recuperate. There was no response concerning whether the medical procedure performed on July 23, 1990, was an emergency procedure. The court ordered the defendant's counsel either to produce the treating physician for testimony on this procedure or to bring in a sworn affidavit that the defendant was physically incapable of being in court. The court also allowed the plaintiff to arrange for a physician of his choice to examine the defendant. The court then stated on the record that she felt that the defendant was delaying the resolution of this case. The court warned the defendant's counsel that if the defendant failed to show up on November 9, 1990, the court would grant the dissolution and make all related financial orders effective on that date.

"On October 22, 1990, counsel for the defendant notified the plaintiff's counsel that depositions of three witnesses for the defendant were scheduled on October 31, 1990, in New York. On October 25, 1990, the plaintiff's counsel mailed to the clerk's office a motion for protective order to prevent the deposition of these nonparty witnesses. The motion arrived at the clerk's office and was filed on Monday, October 29, 1990. The court noted that because the motions docket was heard on Mondays, there could not have been a hearing until the following Monday at the earliest. The defendant's counsel called the plaintiff's counsel on October 31. The defendant's counsel proceeded with the depositions after the plaintiff's counsel stated that he was not coming to New York. The New York witnesses were the defendant's treating physician and two psychotherapists.

"The court refused to admit these depositions as a substitute for live testimony. The court found that it would be prejudicial to the plaintiff to admit these depositions because the plaintiff was not present to cross-examine the defendant's witnesses. The court reasoned that because of the defendant's scheduling, the plaintiff was prevented from being heard on this motion for a protective order before the depositions took place in New York. The court felt that these depositions should have been scheduled earlier so as to allow the plaintiff to first be heard on his motion for a protective order." Cahn v. Cahn, supra, at 723-26, 603 A.2d 759.

"In an appeal following certification, the focus of our review is not the actions of the trial court, but the actions of the Appellate Court." (Internal quotation marks omitted.) Essex Leasing, Inc. v. Zoning Board of Appeals, 206 Conn. 595, 599, 539 A.2d 101 (1988); see also Nardini v. Manson, 207 Conn. 118, 119-20 n. 1, 540 A.2d 69 (1988). In upholding the decision of the trial court, the Appellate Court stated that the notice provided by the defendant was not reasonable. Cahn v. Cahn, supra, 26 Conn.App. at 728-29, 603 A.2d 759. "[A] deposition ... may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof...." Practice Book § 248. The plaintiff was neither present nor represented by counsel at the depositions. The Appellate Court ruled that the notice provided to the plaintiff was not reasonable because it did not allow the plaintiff sufficient time to argue his motion for protective order. Cahn v. Cahn, supra.

The defendant argues that the notice must merely be sufficient to afford a party an adequate opportunity to attend the deposition and cross-examine the deponent. In her view, there is no requirement that the notice be given far enough in advance of the deposition to afford the other party sufficient time to file a motion for protective order and to have that motion heard.

The defendant contends that the Appellate Court's ruling is contrary to our holding in Pavlinko v. Yale-New Haven Hospital, 192 Conn. 138, 470 A.2d 246 (1984). In Pavlinko, the plaintiff, who was also the deponent, was present at the deposition and had never sought a protective order to limit the allowable areas of inquiry at the deposition. He refused, however, to answer certain questions. Id., at 143, 470 A.2d 246. In holding that a plaintiff cannot use the privilege against self-incrimination to deny a defendant information to which the defendant is entitled, we stated that "[a]ll questions, including those objected to, are to be answered ... unless the objecting party procures from the court a protective order precluding or limiting the scope or disclosure of discovery." Id. The issue in Pavlinko was the plaintiff-deponent's conduct at the deposition. ³ The issue before the Appellate Court and this court, however, is whether, in the circumstances of this case, a notice of depositions subsequently ruled unreasonable because the notice did not allow the plaintiff to be heard on his motion for protective order permits a court to exclude the deposition testimony from the trial. The holding of the Appellate Court in this case, therefore, is not inconsistent with our holding in Pavlinko v. Yale-New Haven Hospital, supra.

The defendant next claims that the plaintiff could have requested a continuance and, because he did not do so, she argues that we should not review this claim. ⁴ In Kevin Roche-John Dinkeloo & Associates v. New Haven, 205 Conn. 741, 535 A.2d 1287 (1988), we declined to review a claim of error where a witness whose identity was not disclosed until after five weeks of trial was allowed to testify even though the defendant had not been given an opportunity to depose the witness until the night before he was scheduled to testify. Id., at 748, 535 A.2d 1287. The defendant in that case, however, had not requested a continuance and, because the witness testified at trial, the defendant had an opportunity to...