author: Berdon, J. Borden, J., Santaniello, J.,

text:
    State of Connecticut v. David Campbell
    (14566)
    Peters, C. J., Borden, Berdon, Norcott and Santaniello, Js.

      Argued January 12
    decision released June 1, 1993

      Deborah Del Prete, assistant public defender, and G. Douglas Nash, public defender, for the appellant (defendant).

      Rita M. Shair, assistant state’s attorney, with whom were Philip D’Eramo, assistant state’s attorney, and, on the brief, Eugene Callahan, state’s attorney, for the appellee (state).
   Berdon, J.

The defendant, David Campbell, was charged with the crimes of possession of narcotics with intent to sell by a person who is not drug-dependent pursuant to General Statutes § 21a-278 (b), possession of a weapon in a motor vehicle in violation of General Statutes '§ 29-38, and criminal impersonation in violation of General Statutes § 53a-130. The defendant pleaded not guilty to all three charges and elected a jury trial. At trial, the state nolled the charge of criminal impersonation and the court granted the defendant’s motion to dismiss that charge. The court also granted the defendant’s motion for judgment of acquittal on the charge of possession of a weapon in a motor véhicle. After a jury verdict of guilty on the charge of possession of narcotics with intent to sell by a person who is not drug-dependent, the defendant was sentenced to a term of imprisonment of twenty years, execution suspended after nineteen years, and five years probation. The defendant appealed to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 2003. We affirm.

The defendant raises three issues on appeal: (1) whether the trial court improperly qualified David Eason, a Westport police officer, as an expert witness and allowed him to testify to his opinion that the defendant intended to sell the narcotics seized by the police rather than use them himself; (2) whether the trial court incorrectly instructed the jury that it was required to determine whether the defendant was drug-dependent at the time of the offense when no evidence of drug dependency had been presented; and (3) whether the trial court inappropriately instructed the jury as to reasonable doubt.

The following evidence was presented at trial. On November 11,1989, Detective Michael Barrett observed a brown vehicle make a right turn at a red light. He followed the car onto Interstate Route 1-95 and pulled the vehicle over. As Barrett approached the car, the driver of the vehicle drove away at a high rate of speed. Barrett testified that he had observed the driver’s face and identified the defendant as the driver. Barrett returned to his car, radioed police headquarters, and pursued the vehicle for about two miles, at which point the engine in his car blew up. Eason passed by Barrett’s disabled vehicle in pursuit of the defendant. Shortly thereafter, the brown vehicle flipped over and landed at the bottom of an embankment. Eason was joined by Trooper Warren Hyatt, Jr., who had with him a police dog. Both officers commanded the occupants of the vehicle not to move, but the driver ran and was followed by Hyatt and the dog. The dog caught the driver, who sustained bites to the left leg, shoulder and arm. A search of the car revealed a nine millimeter Beretta handgun. The police also recovered from the defendant an ammunition clip and a baggie containing 118 vials that in a field test were determined to contain crack cocaine.

I

The defendant’s first claim is that the trial court abused its discretion when it improperly qualified Eason as an expert witness and allowed him to testify that in his opinion, the defendant had possessed the 118 vials of crack cocaine with the intent to sell, rather than the intent to use them personally. Defense counsel objected to Eason’s testimony on the grounds that he was not qualified as an expert witness, and that his opinion about whether the vials were held for personal use or for sale was “the ultimate issue to be decided in the case. That is why we have the jury here.” Defense counsel took an exception when the trial court ruled that Eason qualified as an expert witness and would be permitted to testify as to his opinion.

We turn first to the defendant’s assertion that the trial court incorrectly qualified Eason as an expert witness. “The trial court has wide discretion in ruling on the qualification of expert witnesses and the admissibility of their opinions. State v. Girolamo, 197 Conn. 201, 214, 496 A.2d 948 (1985); State v. Biller, 190 Conn. 594, 617, 462 A.2d 987 (1983).” State v. Kemp, 199 Conn. 473, 476, 507 A.2d 1387 (1986). We will not disturb the trial court’s decision absent a showing of abuse of discretion or a clear misconception of the law. Id. “The true test for the admissibility of expert testimony is whether the witnesses offered as experts have any peculiar knowledge or experience, not common to the world, which renders their opinions founded on such knowledge or experience any aid to the court or the jury in determining the question at issue. . . . Generally, expert testimony may be admitted if the witness has a special skill or knowledge, beyond the ken of the average juror, that, as properly applied, would be helpful to the determination of an ultimate issue.” (Citations omitted; internal quotation marks omitted.) State v. Forrest, 216 Conn. 139, 146-47, 578 A.2d 1066 (1990).

In the present case, Eason testified that he had been a police officer employed by the Westport police department for thirteen years, that he had been trained in conducting the field test used to analyze the narcotics seized in this case, that he had used the same test on previous occasions, that he had made “[pjossibly hundreds” of narcotics arrests, that he had worked in an undercover capacity in the past and that he had come into contact with drug sellers. He further testified that he had performed the field test on the narcotics seized from the defendant. On the basis of this evidence, the trial court concluded that Eason qualified as an expert witness. Nevertheless, the defendant contends that this evidence does not establish that Eason had “a special skill or knowledge directly applicable to a matter in issue.” We disagree. As we noted above, a trial judge is vested with wide discretion in assessing the qualifications of an expert witness. The central issue in this case was whether the defendant possessed the narcotics with the intent to sell or intended to use them for his own consumption. There is ample support for the trial court’s finding that Eason’s background as a police officer, his participation in numerous drug arrests, his undercover work and his encounters with drug sellers, in addition to his participation in the present arrest, constituted knowledge that would not be common to the average person and would be helpful to the jury in considering this issue. We conclude that the trial court did not abuse its discretion in qualifying Eason as an expert witness.

The defendant contends that even if Eason was properly qualified as an expert witness, he should not have been permitted to testify to his opinion on the ultimate fact of whether the defendant possessed the narcotics with the intent to sell or for his personal consumption. We agree with the defendant that the trial court should not have permitted the witness to testify to his opinion on this ultimate issue. We conclude, however, that the admission of Eason’s opinion did not harm the defendant and does not warrant a new trial.

In State v. Vilalastra, 207 Conn. 35, 43, 540 A.2d 42 (1988), we held that the trial court improperly permitted the state’s attorney to ask an expert witness, “ ‘[wjhether or not the items found . . . were possessed for either personal use and consumption or with the intent to sell and or dispense.’ ” We noted that “there is something rather offensive in allowing an investigating officer to testify not simply that a certain pattern of conduct is often found in narcotics cases, leaving it for the jury to determine whether the defendant’s conduct fits the pattern, but also that such conduct fitted that pattern, at least when other inferences could have been drawn not unreasonably although perhaps not as reasonably as that to which the expert testified. United States v. Brown, 776 F.2d 397, 401 (2d Cir. 1985), cert. denied, 475 U.S. 1141, 106 S. Ct. 1793, 90 L. Ed. 2d 339 (1986).” (Internal quotation marks omitted.) Id., 44. Furthermore, the legislature has made clear that the ultimate issue of the defendant’s intent is a question for the trier of fact to consider without expert testimony on this precise issue. See General Statutes § 54-86Í. Accordingly, we conclude that the trial court incorrectly permitted Eason to testify as to whether in his opinion the defendant possessed the drugs with the intent to sell or with the intent to use them personally.

We have often held that “the admissibility of evidence is a matter of state law and unless there is a resultant denial of fundamental fairness or the denial of a specific constitutional right, no constitutional issue is involved.” (Internal quotation marks omitted.) State v. Vilalastra, supra, 46. Moreover, we have declined to attach constitutional significance to the erroneous admission of expert testimony concerning an ultimate fact. Id., 47. “ ‘When a trial error in a criminal case does not involve a constitutional violation the burden is on the defendant to demonstrate the harmfulness of the court’s error. State v. Ruth, 181 Conn. 187, 196-97, 435 A.2d 3 (1980). The defendant must show that it is more probable than not that the erroneous action of the court affected the result. Id.; State v. McClain, 171 Conn. 293, 300, 370 A.2d 928 (1976).’ State v. Jones, 205 Conn. 723, 732, 535 A.2d 808 (1988).” State v. Vilalastra, supra, 47.

At trial, the state presented evidence that 118 vials of crack cocaine, an ammunition clip for a nine millimeter handgun, and $139 in small bills were retrieved from the defendant’s person. A nine millimeter Beretta handgun was seized from the defendant’s car. In addition, Barrett and Eason testified that when they asked the defendant what the crack vials sold for, he responded “five dollars.” The jury also heard testimony that the defendant attempted to evade the police by driving off after he had been pulled over, by leading officers on a high-speed chase, and by running away on foot after his car had flipped over the embankment. Finally, the state introduced evidence that the defendant had supplied the false name Alton Jarrett when he was arrested. This evidence provided a strong foundation from which the jury could infer that the defendant possessed the vials of crack cocaine with the intent to sell, rather than with the intent to use them personally. Accordingly, we conclude that the defendant has not sustained his burden of showing that it was more probable than not that the improper admission of the opinion testimony adversely affected the result of the trial.

II

The gravamen of the defendant’s second claim is that it was improper for the trial court to instruct the jurors that it was their duty to determine whether the defendant was drug-dependent when there was no evidence to support that instruction. The defendant asserts that the incorrect instruction deprived him of his right to a fair trial and his right to due process of law and equal protection of the law under the federal constitution. The state concedes that this instruction was improper, but maintains that the instruction was harmless because absolutely no evidence of drug dependency was proffered. We agree.

It is clear that “[t]he trial court should submit no issue to the jury which is foreign to the facts in evidence, or upon which no evidence was offered, and it should not submit to the jury considerations which find no support in the evidence. State v. Cofone, 164 Conn. 162, 168, 319 A.2d 381 (1972) . . . .” (Citation omitted.) State v. Rodgers, 198 Conn. 53, 56, 502 A.2d 360 (1985). For example, we have held that it was improper for the trial court to submit the issue of insanity to the jury when the sanity of the defendant was never in question. State v. Santangelo, 205 Conn. 578, 594, 534 A.2d 1175 (1987). In view of the fact that the record in this case was devoid of any evidence of drug dependency, we conclude that it was improper for the trial court to instruct the jury that it was required to determine whether the defendant was drug-dependent.

The state argues that even if the instruction was incorrect, it was harmless for two reasons: (1) because there was no evidence of drug dependency, the jury could not have been confused or misled; and (2) any possible harm from the instruction was vitiated when the court instructed the jury that there was no evidence of drug dependency offered by the defendant. We agree.

Although it was improper for the trial court to introduce the drug dependency issue by way of its jury charge, the trial court immediately stated: “There has been no evidence whatsoever, ladies and gentlemen, that I can recall that the defendant was not drug-dependent. There is no evidence that he was drug-dependent.” (Emphasis added.) In State v. Santangelo, supra, 594-95, we noted that “[although the trial court incorrectly injected the defendant’s sanity into the case, it promptly removed the issue by instructing the jury that ‘the law presumes that an accused was of sound mind at the time of the incident . . . unless there is some credible evidence tending to prove the contrary. In this case, as I recall the evidence, there has been no evidence tending to prove that the defendant was not of sound mind.’ (Emphasis added.)” Thus, we held that the improper charge in Santangelo was harmless. Id., 594.

In reviewing a constitutional challenge to the trial court’s instructions, we must consider the jury charge as a whole “ ‘to determine whether it is reasonably possible that the instruction misled the jury.’ ” State v. Avila, 223 Conn. 595, 607, 613 A.2d 731 (1992); State v. Santangelo, supra, 595 n.11; State v. Ruiz, 171 Conn. 264, 273, 368 A.2d 222 (1976). “The test is whether the charge as a whole presents the case to the jury so that no injustice will result. . . . Where, as here, the claimed error is one of constitutional magnitude, we must determine whether, in light of the charge as a whole, it is reasonably possible that the jury [was] misled.” (Citations omitted; internal quotation marks omitted.) State v. Utz, 201 Conn. 190, 196-97, 513 A.2d 1191 (1986). A review of the entire charge reveals that the overall effect of the trial court’s instruction was to make drug dependency a nonissue. As a result, it is not reasonably possible that the jury was confused or misled by the instruction.

Ill

The defendant’s final claim is that the trial court diluted the state’s burden of proof in violation of his state and federal constitutional rights when it instructed the jury that “[a] reasonable doubt is a doubt for which a valid reason can be assigned.” Although this claim was not properly preserved at trial, the defendant asserts that he should prevail under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The defendant cannot prevail on his challenge to the instruction on reasonable doubt in this case, however, because “there was no clear deprivation of a fundamental constitutional right . . . .” State v. Thomas, 214 Conn. 118, 120, 570 A.2d 1123 (1990); State v. Jeffrey, 220 Conn. 698, 719, 601 A.2d 993 (1991), cert. denied, U.S. , 112 S. Ct. 3041, 120 L. Ed. 2d 909 (1992). In State v. Jeffrey, supra, 719, this court concluded that a similar instruction, although improper “did not render an otherwise adequate instruction on reasonable doubt constitutionally defective.” We conclude from our reading of the entire charge that the jury was adequately informed that it was the state’s burden to prove the defendant guilty beyond a reasonable doubt. State v. Thomas, supra, 119-20. Nevertheless, we caution that our decision in this case should not be construed to endorse the use of this potentially confusing instruction.

The judgment is affirmed.

In this opinion Peters, C. J., and Norcott, J., concurred.

Borden, J.,

with whom

Santaniello, J.,

joins, concurring. I agree with the result reached by the majority, and with the reasoning in parts I and III of that opinion. I write separately, however, because: (1) I reach the result regarding part II of the opinion by a different route; and (2) I decline to join the final sentence of part III of the opinion, for reasons I spell out below.

In part II of the majority opinion, I would address the defendant’s claim in light of our recent decisions in State v. Hart, 221 Conn. 595, 605 A.2d 1366 (1992), and State v. Pinnock, 220 Conn. 765, 787-88, 601 A.2d 521 (1992). The defendant’s claim is that the trial court improperly charged the jury that: (1) drug dependency is an element of the crime; (2) the defendant had the burden to introduce some evidence that he was drug-dependent; and (3) if he did introduce such evidence, the state had the burden to disprove drug dependency by proof beyond a reasonable doubt.

In Hart, however, we held that “the language of [General Statutes] § 21a-269, which places the ‘burden of proof on a defendant invoking the exemption specified by [General Statutes] § 21a-278 (b), requires the defendant to carry the burden of persuading the jury by a preponderance of the evidence that he or she is drug-dependent.” State v. Hart, supra, 609. Under this analysis, therefore, the instruction of the trial court, which purported to continue to impose on the state the ultimate burden of persuasion on the issue of the absence of drug dependency, was erroneous but was unduly favorable to the defendant. An erroneous instruction that is unduly favorable to the defendant is harmless as a matter of law. State v. Pinnock, supra. I would conclude, therefore, that the error was harmless under Hart and Pinnocjc.

With respect to part III of the majority opinion, I decline to join the last sentence, which reads: “Nevertheless, we caution that our decision in this case should not be construed to endorse the use of this potentially confusing instruction.” The jury instruction at issue, which we are reviewing in the context of an Evans/Golding claim that it diluted the state’s burden of proof, was that “[a] reasonable doubt is a doubt for which a valid reason can be assigned.” I think that the majority’s implied disapproval of this instruction is inappropriate in this case.

First, we have recently decided to review this precise language in this precise context. See State v. Johnson, 224 Conn. 927, 619 A.2d 851 (1993) (grant of certification); State v. DePastino, Supreme Court Docket No. 14695. In light of these pending cases, I do not understand why this negative signal is gratuitously being sent prior to those cases being argued.

Second, this negative signal is inconsistent with our precedents on this and similar instructions defining reasonable doubt. In State v. Derrico, 181 Conn. 151, 170-71, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980), the defendant challenged that portion of the reasonable doubt instruction stating that such a doubt was, inter alia, “ ‘one for which you can, in your own mind, conscientiously give a reason.’ ” We held that, reading the instruction as a whole, the language did not dilute the state’s burden of proof or shift that burden to the defendant, and that the instruction “essentially defined a reasonable doubt as a doubt founded on reason as contrasted with a purely speculative doubt.” Id., 171.

In State v. Findlay, 198 Conn. 328, 345-46, 502 A.2d 921, cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986), the defendant challenged the precise language at issue in this case: a “ ‘doubt for which •a valid reason can be assigned.’ ” The court, analogizing this language to that approved in Derrico, agreed with the state that “the challenged definition was merely one in which the jurors could test the reasonableness of a doubt and that therefore the charge, taken as a whole, ’provided sufficient guidance for the jury.” Id., 347.

Derrico and Findlay were followed by State v. Lytell, 206 Conn. 657, 664-65, 539 A.2d 133 (1988), in which the challenged language was “ ‘a doubt for which a reasonable person can give a valid reason.’ ” Here, apparently not even in the context of an Evans/Golding claim, the court held that the charge, taken in its entirety, “fairly presented the proof beyond a reasonable doubt standard so that no injustice was done.” State v. Lytell, supra, 665.

More recently, we have rejected the same or similar challenges, without any inkling of disapproval. See State v. Gomez, 225 Conn. 347, 353 n.8, 622 A.2d 1014 (1993) (reasonable doubt is “ ‘a doubt for which a reasonable man or woman can give a valid reason’ ’’.and it “ ‘is a doubt which would cause you as reasonable and prudent men and women to hesitate to act in the more weighty and important matters relating to your own affairs’ ”); State v. Adams, 225 Conn. 270, 290, 623 A.2d 42 (1993) (“ ‘[a] reasonable doubt is a doubt for which a valid reason can be assigned’ and ‘is such a doubt as in serious affairs which concern yourselves you would . . . heed’ ”); State v. Thomas, 214 Conn. 118, 119 n.l, 570 A.2d 1123 (1990) (a reasonable doubt “ ‘is a doubt to which a valid reason can be assigned. . . . It is such a doubt as in serious affairs which concern you in your everyday life you would pay some strict attention to’ ”).

We have, however, disapproved of other language that resembles but is different from the language at issue in this case. In State v. Jeffrey, 220 Conn. 698, 719, 601 A.2d 993 (1991), cert. denied, U.S. 112 S. Ct. 3041, 120 L. Ed. 2d 909 (1992), the defendant challenged that portion of the trial court’s definition of reasonable doubt as “a doubt for which if necessary you can give an explanation of to your fellow jurors in the jury deliberation room . . . .” (Emphasis added; internal quotation marks omitted.) Id. Referring to our prior decision in State v. Ireland, 218 Conn. 447, 457, 590 A.2d 106 (1991), in which the same language had been considered, we reiterated our earlier conclusion that “such an articulation requirement, although improper, did not render an otherwise adequate instruction on reasonable doubt, constitutionally defective.” (Emphasis added.) State v. Jeffrey, supra.

The language in this case—“a doubt for which a valid reason can be assigned”—is somewhere in between the language approved in State v. Derrico, supra (a doubt “for which you can, in your own mind, conscientiously give a reason”); emphasis added; and the articulation requirement disapproved in Jeffrey. The Derrico language in effect tells the jurors that they must be able to give themselves a reason; the Jeffrey language tells them that they must be able to articulate that reason to their fellow jurors. The language in this case does neither explicitly.

Some of the questions with which we will presumably have to struggle in the two cases recently certified are: (1) whether the language in this case is closer to Jeffrey or to Derrico; (2) if it is improper in isolation, is it improper taken in the context of the entire charge? (3) if it is improper in that context, is it constitutionally improper in the sense of diluting the state’s burden of proof? and (4) if it is constitutionally improper, is the error harmless beyond a reasonable doubt in the context of the case as a whole? The last sentence of the majority opinion in this case appears to signal that the majority of this panel of this court has already decided at least questions (1) and (2) above.

In sum, I think it is inappropriate to offer a disapproval of language that: (1) will be before us in two cases soon; (2) we have reviewed numerous times over the past thirteen years without disapproval; and (3) is-not necessary to the decision in this case. I therefore decline to join that disapproval.

       General Statutes § 21a-278 (b) provides in relevant part: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance, hallucinogenic substance other than marijuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter, and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years. . . .”

       General Statutes § 29-38 provides in relevant part: “Any person who knowingly has, in any vehicle owned, operated or occupied by him, any weapon for which a proper permit has not been issued ... or has not registered such weapon . . . shall be fined not more than one thousand dollars or imprisoned not more than five years or both . . . .”

       General Statutes § 53a-130 provides in relevant part: “(a) A person is guilty of criminal impersonation when he: (1) Impersonates another and ■does an act in such assumed character with intent to obtain a benefit or to injure or defraud another; or (2) pretends to be a representative of some person or organization and does an act in such pretended capacity with intent to obtain a benefit or to injure or defraud another . . . .”

       Practice Book § 2003, which was repealed effective October 1, 1992, provided that “[a]ny appeal brought to the appellate court which is properly within the jurisdiction of the supreme court shall not be dismissed for the reason that it should have been brought to the supreme court but shall be transferred by the chief clerk of the appellate court to the supreme court . . . .” Practice Book § 4027 now allows transfer of cases between the Appellate Court and the Supreme Court.

       Although testimony at trial initially established that 119 vials were seized from the defendant, further testimony revealed that only 118 vials were actually seized.

       The testimony at issue is as follows:
      ‘“[The State]: Officer . . . based on your training and experience and the undercover work you have done, your surveillance work you have done, the arrests you have made in your narcotic[s] capacity as a statewide officer and such, if the vials, the 119 vials which were found on the defendant, based upon your opinion, is that used for personal use, or is that packaged with the possession with the intent to sell?
      “[Officer Eason]: That would be possession with intent to sell.
      “[The State]: What is the normal standard for someone just possessing, simple possession?
      “[Officer Eason]: One, two, maybe three.
      * * *
      “[The State]: Not 119?
      “[Officer Eason]: No. Not 119.”

       General Statutes § 54-86Í provides: “No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto, except that such expert witness may state his diagnosis of the mental state or condition of the defendant. The ultimate issue as to whether the defendant was criminally responsible for the crime charged is a matter for the trier of fact alone.”

       The concurring opinion states that the defendant also challenges the trial court’s charge that drug dependency is an element of the crime. The defendant has not briefed this claim nor is it necessary to discuss this claim to decide the issue in this case—namely, whether it was improper for the trial court to introduce, sua sponte, the issue of drug dependency.
      The concurring opinion also suggests that the case should be decided under State v. Pinnock, 220 Conn. 765, 787-88, 601 A.2d 521 (1992), on the ground that the erroneous instruction in this case was unduly favorable to the defendant and is harmless as a matter of law. In so stating, the concurring opinion fails to recognize that determining whether to introduce evidence of drug dependency is a complex issue. In State v. Frye, 224 Conn. 253, 261 n.3,617 A.2d 1382 (1992), we recognized the following difficulties: “(1) A jury exposed to evidence of drug dependency is not likely to entertain a reasonable doubt as to simple possession; and (2) evidence of drug dependency may bolster a claim that the defendant had a motive to sell drugs, thus helping to secure conviction under General Statutes § 21-277; however, (3) failure to put on any evidence of drug dependency is to risk conviction for General Statutes § 21a-278 (b)—possession by a person who is not drug-dependent.” Thus, an instruction introducing the stigma of drug dependency, which the defendant has strategically opted to avoid, can hardly be deemed “unduly favorable.” Accordingly, we find harmlessness on other grounds.

       The trial court instructed the jury as follows: “Now, the absence of drug dependency is not an element of the State’s prima facie case. . . .We have a statute that has the effect of placing the burden on the defendant to produce some evidence that he was a drug-dependent person at the time of the alleged offense. That is; if you find that the State has satisfied all of its own elements that it must prove beyond a reasonable doubt, then if you come to the question of whether or not the defendant was drug-dependent, under those circumstances, the statute places the burden on the defendant to produce some evidence that he was drug-dependent. In the statute there is that presumption that the defendant has the burden of producing some evidence, because most persons are not drug-dependent, and most people are not drug addicts, and that’s why the law presumes that the defendant was not drug-dependent at the time of the incident on which the charge is based. So then, the State of Connecticut has the right in the first instance to rely on the statutory presumption that the defendant was not drug-dependent at the time of the offense alleged in the information, and the defendant bears the burden of producing some evidence to prove drug dependency. There has been no evidence whatsoever, ladies and gentlemen, that I can recall that the defendant was not drug-dependent. There is no evidence that he was drug-dependent. If you think he was, that is up to you. If you think the facts lead themselves to reasonably conclude that the defendant was drug-dependent, then the State has the burden of establishing evidence that the defendant was not drug-dependent. Thus, if you find that the State has proven beyond a reasonable doubt all of the elements of the offense, you must find the defendant guilty. If on the other hand you do not so conclude, then you must find the defendant not guilty.” Defense counsel objected and took an exception to the charge.

       The defendant bases his claim on the fifth, sixth and fourteenth amendments to the United States constitution. He also challenges the instruction on state constitutional grounds. We refuse to review the defendant’s state constitutional claims, however, because he has failed to present an independent analysis. See State v. Joly, 219 Conn. 234, 258 n.l6, 593 A.2d 96 (1991); State v. Mercer, 208 Conn. 52, 67 n.9, 544 A.2d 611 (1988).

       The trial court in State v. Jeffrey, 220 Conn. 698, 719, 601 A.2d 993 (1991), cert. denied, U.S. , 112 S. Ct. 3041, 120 L. Ed. 2d 909 (1992), instructed the jury that a reasonable doubt “is ‘a doubt for which if necessary you can give an explanation of to your fellow jurors in the jury deliberation room ....’”

       In State v. DePastino, Supreme Court Docket No. 14695, which was transferred to our docket from the Appellate Court, we recently granted the defendant’s motion to add this claim to his brief.


source: Caselaw Access Project

author:
Santaniello, J.
      Berdon, J., Borden, J.,

license: Public Domain

text:
    Bruce Cahn v. Florence Cahn
    (14523)
    Peters, C. J., Borden, Berdon, Norcott and Santaniello, Js.

      Argued January 12
    decision released June 1, 1993

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

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

The question posed by this certified appeal 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. 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, 723. “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 [14], 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 ease. 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 plaintiffs 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 non-party 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 plaintiffs 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, 723-26.

“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.l, 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, 728-29. “[A] deposition . . . maybe 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., 143. 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. The issue before the Appellate Court and this court, however, is whether, in the circumstances of this case, a notice of deposition 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. 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., 748. The defendant in that case, however, had not requested a continuance and, because the witness testified at trial, the defendant had an opportunity to cross-examine the witness. Id. Although the plaintiff here did not request a continuance of the already protracted trial, he did file a motion for protective order. Filing such a motion was a viable means available to him to prevent the depositions from occurring.

The question remains, however, whether the plaintiff took reasonable steps to expedite a hearing on the motion for protective order. The motion is dated October 25,1990. Rather than delivering the motion to the clerk’s office on Thursday, October 25, or Friday, October 26, the plaintiff mailed the motion to the courthouse, resulting in its arrival in the clerk’s office on Monday, October 29,1990. In addition, the plaintiff did not bring the motion to the attention of the judge presiding over the trial; rather he followed the usual procedure for claiming a motion for short calendar. As a result, the motion for protective order did not come to the attention of the trial judge until the defendant attempted to introduce the deposition testimony at trial. Practice Book § 206 gives the court the discretion to dispose of any motion in a case on trial rather than automatically relegating the matter to the short calendar list. See Udolph v. West Hartford Spirit Shop, Inc., 20 Conn. App. 733, 736, 570 A.2d 240 (1990) (“[t]he court, in its discretion, could have heard the . . . motion although it was not on the short calendar list”); see also State ex rel. Bonoff v. Evarts, 115 Conn. 98, 100-101, 160 A. 294 (1932) (trial court can accelerate hearing at its discretion).

The defendant also did not attempt to expedite the disposition of the motion for protective order. Upon receiving notice of the motion, the defendant could have contacted the court to request immediate consideration of the motion by the trial judge, or contacted the plaintiff to attempt to resolve the problem. She did neither. Instead she waited to contact the plaintiff on the morning of the scheduled depositions, and proceeded to conduct the depositions even though the plaintiff had told her that neither the plaintiff nor his attorney would attend the depositions until after the motion for protective order had been decided.

Neither party in this case is without responsibility. Other courts also have acknowledged the responsibility of both parties for the orderly conduct of depositions. Where one party scheduled a deposition and canceled it when the other party, who had filed a motion for protective order, did not appear, the court reprimanded both parties. Goodwin v. Boston, 118 F.R.D. 297, 298 (D. Mass. 1988). The court stated that the objecting party should have contacted the other party to arrange a stay until the motion for protective order could be heard or, barring agreement, filed a motion to stay the deposition and alerted the court to the need for immediate action on the motion for a stay. Id. The court also noted that the party seeking the deposition did nothing to alert the court to the need for an immediate decision on the motion for protective order, and did not contact the objecting party before attempting to proceed with the deposition. Id.; see also Cady v. Laws, 341 So. 2d 1022, 1023 (Fla. App. 1977) (“many of the complaints expressed by the [plaintiffs] could be obviated by the exercise of a modicum of professional courtesy between counsel”).

“[W]hat is reasonable notice must depend largely upon the facts and circumstances of each case, and . . . such matters must be left to the wise legal discretion of the trial court.” Harris’s Appeal from Commissioners, 58 Conn. 492, 494-95, 20 A. 617 (1890); accord C & F Packing Co. v. Doskocil Companies, Inc., 126 F.R.D. 662, 678 (N.D. Ill. 1989) (“the most that can be gleaned from the case law is that the reasonableness of notice must be determined under the individual circumstances of each case”); Hogan v. Beckel, 783 S.W.2d 307, 308 (Tex. App. 1989) (“[w]hether notice is reasonable depends on the circumstances of each case”); Rovner v. Rovner, 778 S.W.2d 905, 908 (Tex. App. 1989) (“question of whether reasonable notice has been given is within the discretion of the trial court”). Courts, in Connecticut and in other jurisdictions, consider the proximity in time of the scheduled deposition to the trial date and the length of time during which the identity of the deponent has been known in determining whether the notice is reasonable.

In many cases, the court’s ultimate ruling assigned considerable weight to the objecting party’s filing of a motion for protective order. In Harris’s Appeal from Commissioners, supra, notice that a deposition was scheduled two days later was held reasonable because the deponent was leaving the state for an extended period, and thus would not be available at the time of trial. The objecting party, however, had taken no steps to postpone the deposition. Id.

In Mims v. Central Manufacturers Mutual Ins. Co., 178 F.2d 56 (5th Cir. 1949), the court held that notice served ten days before trial for taking sixteen depositions in ten cities throughout the country on the same day was not reasonable. “There was no real opportunity for a seasonable motion for the protection of the parties . . . .” Id., 59.

The Texas Court of Appeals noted that four days notice was rather short, but concluded that it was not automatically unreasonable where the plaintiff ignored the notice, did not file a motion for protective order and did not attempt to reschedule the deposition. Bohmfalk v. Linwood, 742 S.W.2d 518, 520 (Tex. App. 1987).

In Van Buren v. Dendy, 440 So. 2d 1012 (Ala. 1983), the defendant filed a motion for protective order claiming, inter alia, that “this case has been pending since February of 1982, that the Plaintiff has known at all times that the testimony of these deponents would be critical'in this trial but that Plaintiff has postponed the taking of this critical deposition until five (5) days before the trial of this case.” Id., 1014. The Alabama Supreme Court ruled that the trial court had properly granted the motion for protective order and stated that “[i]t seems clear that [the plaintiff] was aware, during the entire course of the proceedings in this action, that '[the deponent’s] testimony would be critical .to his case and that [the deponent] resided in Chicago, Illinois. This was not a ‘newly discovered’ witness.” Id.

Where the witness is not discovered or located until shortly before trial, the court will construe the notice requirement more liberally. In Federal Aviation Administration v. Landy, 705 F.2d 624 (2d Cir.), cert. denied, 464 U.S. 895, 104 S. Ct. 243, 78 L. Ed. 2d 232 (1983), the government gave notice of four working days for the deposition of a witness, located ten days before trial, who would -be unavailable at trial. The court held that this notice was reasonable because the defense coun.sel “neither contacted the government’s attorney . . . nor sought expedited relief from the court . . . but rather mailed a motion returnable eleven days later seeking an order vacating the notice.” Id., 634.

In the case presently before us, however, the defendant was neither attempting to depose witnesses in anticipation of trial nor seeking to depose a newly discovered witness. The trial had begun on July '5, 1990, and had been continued to July 24, September 14, and finally, November 9, 1990. The defendant was aware throughout the entire trial period that she wanted to include the testimony of her treating physician and psychotherapists. In anticipation of the fact that they might be unavailable at the time their testimony was required, she could have deposed them at any time during that four month period. The situation here is more egregious than that in Van Buren v. Dendy, supra, where the plaintiff delayed the deposition until a few days before trial. Here, the defendant waited until after the plaintiff had completed presenting his evidence before giving notice of the depositions.

The trial court ruled that the notice given for these depositions was unreasonable because the notice did not provide the plaintiff with sufficient opportunity to have his motion for protective order heard. The court further ruled that the plaintiff had been prejudiced by not being able to cross-examine the deponents. For these reasons, the trial court did not allow the depositions to be introduced into evidence. See Mims v. Central Manufacturers Mutual Ins. Co., supra, 59 (under Federal Rules of Civil Procedure, “reasonable notice” includes an opportunity to obtain a “seasonable motion for the protection of the parties”); Spangler v. Southeastern Greyhound Lines, 10 F.R.D. 591 (E.D. Tenn. 1950) (closeness in time of taking depositions to trial date should be considererd in deciding reasonableness of notice).

The admissibility of a deposition into evidence under Practice Book § 248 is “permissive in nature, leaving the ultimate determination to the trial judge.” Farrell v. St. Vincent’s Hospital, 203 Conn. 554, 565, 525 A.2d 954 (1987). “On appeal, the trial court’s rulings on the admissibility of evidence are accorded great deference .... [and] will be disturbed only upon a showing of clear abuse of discretion. . . . The party making the claim of error has the burden of showing that the court clearly abused its discretion.” (Citations omitted; internal quotation marks omitted.) Id., 565-66.

The trial court considered the actions of the parties when exercising its discretion and determined that, under the facts of this case, the mere filing of a motion for protective order made the notice not reasonable and provided a sufficient basis to exclude the deposition testimony. In these circumstances, the Appellate Court appropriately concluded that the trial court had not abused its discretion in denying the admissibility of the deposition testimony into evidence.

The judgment of the Appellate Court is affirmed.

In this opinion Peters, C. J., and Norcott, J., concurred.

Berdon, J.,

concurring. I agree that we should affirm the judgment dissolving the marriage of the parties and granting certain other relief. I write separately to elaborate on why I vote to affirm on the certified issue and to express my concern about some of the court’s dicta.

Implicit in the certified issue is the question of whether the plaintiff had reasonable notice of the deposition. When notice is unreasonable, as the trial court found in the present case, the fact that a party has filed a motion for protective order should apprise the party seeking to take the deposition that if he or she proceeds without first resolving the motion, there is a risk that the deposition will be rejected at trial for lack of sufficient notice. Any other result may deny the party opposing the deposition a reasonable time period in which to make objections.

I agree that the standard for the admissibility of a deposition into evidence under Practice Book § 248 is “permissive in nature, leaving the ultimate determination to the trial judge.” Farrell v. St. Vincent’s Hospital, 203 Conn. 554, 565, 525 A.2d 954 (1987). “On appeal, the trial court’s rulings on the admissibility of evidence are accorded great deference . . . [and] will be disturbed only upon a showing of clear abuse of discretion. . . . The party making the claim of error has the burden of showing that the court clearly abused its discretion.” (Citations omitted; internal quotation marks omitted.) Id., 565-66.

In determining the reasonableness of notice of a deposition to be taken after trial has commenced, the trial court should consider not only the amount of time given to the opposing party, but also whether the party seeking to take the deposition has been diligent. Neither party should be required to attend a deposition at the whim of the other party. See Practice Book § 221. In addition to the amount of notice given to the opposing party, the following are among the factors that the trial court should consider: (1) the date that the case was returned to court; (2) when the party became aware of facts suggesting a deposition would be necessary; (3) the need for the deposition; and (4) the place designated for taking the deposition. The trial court considered these factors in this case.

As Justice Santaniello points out in the majority opinion, on October 22,1990, counsel for the defendant notified counsel for the plaintiff that depositions of three medical witnesses for the defendant were scheduled to take place nine days later, on October 31,1990, in Long Island, New York. Counsel for the defendant gave notice of the deposition approximately sixteen months after the action was brought and three and one-half months after the trial commenced. The defendant does not claim that the three witnesses she sought to depose were newly discovered, nor does she allege any other circumstances that would justify such short notice. Moreover, counsel for the defendant admitted that he knew of the existence of these deponents prior to trial. Indeed, during the entire course of this litigation, dilatory tactics were the norm for the defendant.1 therefore agree that the trial court did not abuse its discretion in holding that notice was unreasonable under the circumstances of this case and justified the exclusion of the depositions.

I am concerned about the suggestion, in both the majority and dissenting opinions, that a party deponent must answer all questions asked at a deposition unless the party procures a protective order. They further suggest that the failure to do so would subject the party deponent to sanctions, including the draconian result of dismissal of his or her cause of action. I do not read Practice Book § 247 (b) to require the party deponent to answer every question proposed. Even if § 247 (b) required such a result, I would question its constitutionality. A deponent cannot predict each question that will be asked, and is therefore unable to obtain a protective order for an unanticipated line of questioning. Would the court order sanctions if a party deponent refused to respond to an unanticipated line of questioning involving privileged communications between the party and his or her attorney? Our holding in Pavlinko v. Yale-New Haven Hospital, 192 Conn. 138, 470 A.2d 246 (1984), cited in both opinions, must be held to its facts—that is, the plaintiff-deponent refused to answer the question after he was given an opportunity to be heard before the trial court, and after he was ordered to answer by the trial court.

Accordingly, I concur in the judgment of the court.

Borden, J.,

dissenting. I confess that it is difficult for me to follow the reasoning of the majority opinion. The majority begins by stating the issue that we certified: “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.” The opinion then reformulates the issue into a different question: “whether, in the circumstances of this case, a notice of deposition 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 majority then answers the certified issue, ipse dixit, by stating that “[filing such a motion [for a protective order] was a viable means available to [the plaintiff] to prevent the depositions from occurring.”

The majority proceeds from there to address the question of whether the plaintiff had taken sufficient steps to expedite a hearing on his motion. Concluding, albeit implicitly, that he had not, the majority answers this difficulty by pointing out that the defendant also could have taken steps to secure a ruling on the motion. That may be true, but it begs the question of this case, namely, which party had the burden of doing so, and the majority fails to indicate why the defendant had any burden to secure a ruling on her adversary’s motion.

The majority then explores the question of the reasonableness of the notice—a question which, as I demonstrate below, was not the basis of either the motion for protective order or the trial court’s ruling excluding the deposition testimony at the trial. The opinion then seeks comfort in the facts that, in this case, the defendant was not seeking to depose either pure discovery witnesses or newly discovered witnesses, and that “the defendant waited until after the plaintiff had completed presenting his evidence before giving notice of the depositions.” These facts ignore, however, the more significant facts that these depositions were for the purpose of preserving and presenting trial testimony of out-of-state witnesses for the defendant; see Practice Book § 248; whose testimony, if it had been presented live during the trial rather than by way of deposition, would not have been presented until after the plaintiff had completed presenting his evidence. I fail, therefore, to see how those facts help the plaintiff’s argument in this case.

The majority then appears to reduce the entire case to a question of evidentiary abuse of discretion vel non, as if we were reviewing a ruling by the trial court on whether evidence was relevant or, if relevant, whether its probative value outweighed its prejudicial effect. Relying on Farrell v. St. Vincent's Hospital, 203 Conn. 554, 565, 525 A.2d 954 (1987), the majority concludes by endorsing the trial court’s exercise of discretion in determining that “under the facts of this case, the mere filing of a motion for protective order made the notice not reasonable,” and by concluding further, therefore, that the Appellate Court properly determined “that the trial court had not abused its discretion in denying the admissibility of the deposition testimony into evidence.”

This reasoning does not address the issue in this case. I turn, therefore, to what I regard as the proper analysis of this appeal.

The question posed by this appeal is the question of law that we certified: “Did the Appellate Court properly conclude 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?” Cahn v. Cahn, 221 Conn. 924, 608 A.2d 688 (1992). This issue necessarily presents a question of law regarding the appropriate allocation of the burden to secure a ruling on a motion for a protective order. The majority opinion does not analyze this question, and reaches an incorrect conclusion, both on the facts of this case and on the applicable law.

First, the question of the reasonableness of the notice was not the basis—or even one of the bases—of the plaintiffs motion for a protective order. That motion did not challenge the reasonableness of the notice of the deposition. That motion was based instead upon the assertions of the plaintiff that: (1) the depositions were dilatory because the case had been returned to court in February, 1989, and the depositions were to take place in October, 1990; (2) the depositions would be prejudicial because the plaintiff had completed his case; and (3) the nonparty deposition witnesses were to be expert witnesses whom the defendant had not identified as such prior to trial. Moreover, at no time in the trial court—either at trial when the depositions were offered or when the issue was again raised in the defendant’s posttrial motion to open the judgment— did the plaintiff claim that he had not been given “reasonable notice” of the depositions as required by Practice Book § 248. Furthermore, insofar as I can tell, at no time did the trial court find that reasonable notice had not been given—except insofar as it ruled that the defendant had been obligated to notice the deposition in time for the plaintiff to have his motion for protective order heard at a normal short calendar session, a ruling I discuss in more detail below.

Indeed, on the facts of this case, a claim that the notice of the depositions was not “reasonable” (in the sense that the phrase “reasonable notice” is usually understood) is and would have been untenable. This trial, which was being held in Danbury, had begun on July 6, 1990, and at the time of the deposition notice the trial had been continued from September 14,1990, to November 9,1990. The notice was given to the plaintiff on October 22, 1990, for the depositions to take place on Long Island on October 31, 1990. The plaintiffs attorney was located in Danbury.

As early as 1910, this court held that eleven days notice given to a New Haven defendant of a deposition to take place in Kansas was reasonable; Alspaugh v. Dillon, 83 Conn. 65, 72, 75 A. 82 (1910); and in 1890, we considered to be reasonable a one day notice of a deposition to take place in Hartford. Harris’s Appeal from Commissioners, 58 Conn. 492, 494-95, 20 A. 617 (1890). The plaintiffs attorney in this case had a nine day notice of depositions that were to be taken at a location approximately two to three hours by car from the place of trial and the location of the plaintiffs attorney’s office. It can hardly be argued, therefore, that in this day of rapid travel and communication this notice was not reasonable.

I turn, therefore, to what is the issue in this appeal: whether the mere filing of a motion for a protective order seeking to preclude the taking of a deposition of a nonparty witness is sufficient to stay the taking of that deposition. As a factual matter, it is specious to say that, on this record, the defendant’s notice did not give the plaintiff the opportunity to have his motion for protective order heard before the depositions were to be taken. Indeed, the majority recognizes as much. The plaintiff received the notice on October 22, 1990. He did not mail his motion until three days later, October 25,1990, so that it was not received by the clerk’s office until four days after that, October 29,1990. Thus, it took the plaintiff’s counsel seven of the nine days notice period to prepare and file his one page motion in the clerk’s office located in the same city as his office.

More significantly, the ruling of the trial court, which both the Appellate Court and the majority opinion endorse, was based on the assumption that the plaintiff’s motion was required to be heard on the next short calendar. That assumption is not rooted in the provisions of the Practice Book or in the reality of our trial court practice. This case was already in the midst of trial. Practice Book § 206 provides that “any motion in a case on trial . . . may be disposed of by the court at its discretion . . . .” That section “sets forth the procedures to be followed in order to bring a motion before the court for a hearing .... The court need not place a motion on a short calendar list if to do so would delay the proceedings. See State ex rel. Bonoff v. Evarts, 115 Conn. 98, 100-101, 160 A. 294 (1932).” Udolf v. West Hartford Spirit Shop, Inc., 20 Conn. App. 733, 735-36, 570 A.2d 240 (1990).

It is inconceivable to me that any short calendar judge, other than the trial judge actually hearing the case, would have undertaken to hear the plaintiff’s motion. That short calendar judge would certainly have referred the motion to Judge Geen, the trial judge here, and it is equally inconceivable to me that the plaintiff’s counsel could have been unaware of that certainty. If he was not so aware, he should have been.

That being the case, the plaintiffs counsel should not have simply mailed the motion into court and awaited a short calendar session that could only have produced a reference to Judge Geen. Instead, he could (as the majority opinion acknowledges) and should (as common sense suggests) have arranged to file the motion earlier, and arranged with the clerk to have it brought to Judge Geen’s attention for a prompt hearing upon prompt notice to the defendant’s counsel. Practice Book § 206.

The facts are not, therefore, that the plaintiff had an insufficient opportunity to have his motion heard before the date of the depositions. The facts are that he had a full eight days (October 22 through October 30) to prepare, file and arrange a hearing on his motion.

As a legal matter, I disagree with the implied holding of the majority opinion, namely, that the legal burden is on the party who notices a deposition to anticipate a motion for protective order and to give the notice long enough before the deposition date so as to permit the opposing party time to have such a motion heard in the ordinary course of the motion practice. This raises the legal issue that we certified, and that should control this case: if, as here, a party has filed a motion for a protective order seeking to preclude a midtrial deposition, and if the movant has a sufficient opportunity to secure a ruling on his motion prior to the proposed date of the deposition, does the filing of the motion, without more, stay the deposition and thus give the movant the right not to attend with impunity? Stated another way, the issue is who—the movant or the party seeking the deposition—has the burden to secure a ruling on the motion for protective order before the proposed deposition date? Contrary to the majority opinion, I would resolve this issue in favor of the party seeking to take the deposition, and place the burden of securing such a ruling on the movant.

Placing the burden on the movant is consistent with our general jurisprudential rules that the party who seeks some form of relief from the court has the burden to take the steps necessary to secure that relief. Except for instances where the rules specifically provide, such as a motion to open a judgment or a motion to reargue staying the time for appeal; see, e.g., Practice Book §§ 4009 and 4050 ; I know of no other situation in which we permit the simple filing of a motion to stay proceedings.

This position, furthermore, is consistent with our analogous Connecticut precedent. In a similar but closely related context, namely, a notice of deposition to an adverse party, we have stated: “Any party may be compelled by notice to give a deposition. Practice Book § 246. The giving of the notice prescribed by § 2UU, unless modified by the court, constitutes an order to the deponent to appear at the time and place designated in the notice and to submit to examination and cross-examination as permitted at trial. Practice Book § 247. All questions, including those objected to, are to be answered; Practice Book § 247 (b); unless the objecting party procures from the court a protective order precluding or limiting the scope or disclosure of discovery. Practice Book § 221.” (Emphasis added.) Pavlinko v. Yale-New Haven Hospital, 192 Conn. 138, 143, 470 A.2d 246 (1984).

I cannot see why if, under Pavlinko, a party subject to a deposition notice must obtain a court order in order to avoid attendance at the deposition, a different rule should apply where a party has been given the same notice of a deposition of a nonparty witness. Yet, that is what the majority opinion holds.

Furthermore, under the federal rules of civil procedure, upon which our deposition rules are patterned, the general rule is that the movant has the burden to secure a ruling on a motion for a protective order. “Rule 30 (b) [of the Federal Rules of Civil Procedure] places the burden on the proposed deponent to get an order, not just to make a motion. And if there is not time to have his motion heard, the least that he can be expected to do is to get an order postponing the time of the deposition until his motion can be heard. He might also appear and seek to adjourn the deposition until an order can be obtained. . . . But unless he has obtained a court order that postpones or dispenses with his duty to appear, that duty remains.” Pioche Mines Consolidated, Inc. v. Dolman, 333 F.2d 257, 269 (9th Cir. 1964), cert. denied, 380 U.S. 956, 85 S. Ct. 1081, 13 L. Ed. 2d 972 (1965); Federal Aviation Administration v. Landy, 705 F.2d 624, 634 (2d Cir.), cert. denied, 464 U.S. 895, 104 S. Ct. 243, 78 L. Ed. 2d 232 (1983) (“it is not the filing of such a motion [for a protective order] that stays the deposition, but rather a court order”). Indeed, in Goodwin v. Boston, 118 F.R.D. 297 (D. Mass. 1988), upon which the majority opinion relies in part, the court, in ruling for the party seeking to take the deposition, stated: “The filing of a motion to quash or a motion for protective order does not automatically operate to stay a deposition or other discovery. When it appears that a Court is not going to be able to decide a motion to quash or a motion for protective order before the date set for a deposition, counsel for the movant should contact counsel for the party noticing the deposition and attempt to reach an agreement staying the deposition until after the Court acts on the motion .... If agreement cannot be reached, it is incumbent on counsel for the movant to file a motion to stay the deposition until the Court acts on the motion to quash and/or for a protective order and to alert the clerk to the need for immediate action on the motion to stay.” Id., 298.

The three cases upon which the majority opinion principally relies are distinguishable. In Mims v. Central Manufacturers Mutual Ins. Co., 178 F.2d 56 (5th Cir. 1949), the trial was set for October 12, 1948, in Alabama. On October 2, the defendants noticed depositions of fifteen witnesses on October 6, and one witness on October 9, in New York, Boston, Chicago, San Francisco, St. Louis, Alliance, Ohio, Cincinnati, Baltimore, Philadelphia, Birmingham and Dallas. Id., 58. On these “unusual features present in the record”; id., 59; the court held that the plaintiffs immediate letter to the defendants’ counsel objecting to the depositions on the grounds that the notice was not reasonable was sufficient to preclude the admission of the depositions into evidence.

In Spangler v. Southeastern Greyhound Lines, 10 F.R.D. 591 (E.D. Tenn. 1950), the court was ruling on the motion for a protective order prior to the taking of the depositions noticed. Thus, the issue presented by this case—upon whom does the burden lie to secure a ruling on such a motion—was not present.

Finally, Farrell v. St. Vincent’s Hospital, supra, does not control here. In Farrell, the discretionary ruling of the trial court was that the probative value of the deposition testimony was outweighed by its inclination to confuse the jury. Id., 565. The issue in this case, despite the majority’s attempt to recast it in discretionary terms, is a legal issue regarding the allocation of the burden to secure a ruling on a motion for protective order in order to forestall a reasonably noticed mid-trial deposition. That is the issue we certified, and that is the issue we ought to answer. I would do so by allocating the burden to the movant.

I therefore dissent, and would reverse the judgment of the Appellate Court and order a new trial.

       The defendant’s petition for certification, filed pursuant to Practice Book § 4126, was granted by the Supreme Court. Cahn v. Cahn, 221 Conn. 924, 608 A.2d 688 (1992).

       We adopt the factual recitation set out in the Appellate Court opinion, Cahn v. Cahn, 26 Conn. App. 720, 603 A.2d 759 (1992), and include here only those facts necessary to place the issue before us in context and to resolve it.

       In Pavlinko v. Yale-New Haven Hospital, 192 Conn. 138, 142-43, 470 A.2d 246 (1984), we upheld the granting of the defendant’s motion to dismiss the plaintiffs action after the plaintiff refused to respond to the defendant’s deposition questions and never indicated any willingness to answer those questions at any time prior to the entry of the judgment of dismissal.

       The defendant also challenges the merits of the motion for protective order. Whether the court would have granted the motion for protective order is not properly before this court and we do not consider that issue.

       Practice Book § 206 provides in relevant part: “Unless otherwise provided in these rules or ordered by the court ... all motions . . . must be placed on the short calendar list. No motions will be heard which are not on said list and ought to have been placed thereon; provided that any motion in a case on trial . . . may be disposed of by the court at its discretion, or ordered upon the short calendar list on terms, or otherwise.”

       Throughout the trial the defendant had attempted to delay and disrupt the orderly court proceedings. The trial court noted several examples in its memorandum of decision. The trial had been scheduled in February, 1990. The parties were notified in May, 1990, that the trial was scheduled for July 5 and 6,1990. As set out in the memorandum of decision, “before taking the bench [on July 5,1990], a sheriff came in and handed the court a letter dated July 3,1990, addressed to this Judicial District’s Administrative Judge from the Nassau County District Attorney’s Office saying that it was, at the recent request of Mrs. Cahn, reopening its investigation into a possible criminal action against Mrs. Cahn on the charge of bigamy, an affirmation dated June 28, 1990 (whatever that is), from defendant’s New York attorney attempting to stop the Connecticut trial, and a letter . . . from the defendant requesting the Connecticut case be dismissed and referred to the New York courts. . . .
      “After the opening of court, the court saw only two persons at one counsel table and several persons in the audience area. The plaintiff’s attorney said he was ready to proceed. The court stated it had reviewed the pleadings and noted the answer filed by Mrs. Cahn as well as her pro se appearance. Based upon her appearance, answer and the long lead time given to prepare for trial on a specific day, the court, having jurisdiction, would proceed.
      “At that moment, a gentleman stepped from the audience area into counsel’s space. He introduced himself as the Connecticut attorney for Mrs. Cahn. He handed in an appearance. It should be noted that the attorney’s appearance bears a typewritten date of June 22, 1990, but [was] not filed until presented in court on July 5, 1990.”
      In addition, the defendant was responsible for the lengthy continuances from July 6,1990, to July 24,1990, then to September 14,1990, and finally to November 9, 1990.

       In determining whether the deposition testimony was properly excluded in this case, the Appellate Court necessarily considered the issue of reasonable notice. “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). Since the Appellate Court’s resolution of the certified issue is intertwined with its resolution of the reasonable notice issue; Cahn v. Cahn, 26 Conn. App. 720, 603 A.2d 759 (1992); our review must address the notice issue as well.

       The dissent claims that the reasonableness of the notice was not the basis of the trial court’s decision. I read a different record. The record is replete with the trial court’s concern about notice. For example, in ruling that the depositions were not admissible, the court stated: “No, I agree with counsel for the [plaintiff] that the notice for depositions were filed much too late. They were dilatory and they are prejudicial.
      “Now really, sir, on a case that is a year and a half old . . . there was plenty of time to [take the depositions]. There was plenty of time to do that in August. In fact, I had warned counsel for both sides that if any depositions were to be taken they should be done promptly. And I did that back in July.”

         Counsel for the defendant stated: “Mrs. Cahn has been asking me to do the depositions ever since I first came into [the case], but I did not want to delay. I told her there could be no delay in the trial to do depositions. I didn’t think that time frame permitted it.” The court replied: “[Y]ou knew on August 3rd that I was going to be out of the courthouse for a month’s vacation. You had plenty of time. What happened to August?”

       See footnote 6 of the majority opinion.

       Practice Book § 247 (b) provides: “All objections made at time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted by the officer upon the deposition. Evidence objected to shall be taken subject to the objections. In lieu of participating in the oral examination, parties may serve written questions in a sealed envelope on the party taking the deposition and the party shall transmit the questions to the officer, who shall propound them to the witness and record the answers verbatim.”

       Subsequently, however, the majority demonstrates that there was no basis for the factual premise of the reformulated issue—namely, that the notice did not allow the plaintiff to be heard on his motion for protective order—because the plaintiff did have ample opportunity to secure a ruling on his motion.


author: Berdon, J.

text:
    Norman F. Wnuk et al. v. Zoning Board of Appeals of the City of New Britain et al. The Stanley Works et al. v. Zoning Board of Appeals of the City of New Britain et al.
    (14482) (14484)
    Callahan, Berdon, Norcott, Katz and F. X. Hennessy, Js.
    Argued December 4, 1992
    decision released June 8, 1993

      David K. Jaffe, with whom was Stephen J. Anderson, for the appellants (plaintiffs in Docket No. 14482).

      Elliott B. Pollack, with whom were Gregory F. Servodidio and, on the brief, Austin J. McGuigan, for the appellants (plaintiffs in Docket No. 14484).

      Howard H. Belkin, with whom, on the brief, was Peter C. Mlynarczyk, for the appellee in both appeals (named defendant in both cases).

      Charles G. Karanian, with whom, on the brief, was Stacy A. Welch, for the appellee in both appeals (defendant West Main Street Associates).
   Berdon, J.

The principal issue in these appeals is whether a zoning board of appeals must decide an applicant’s appeal from the decision of a zoning enforcement officer denying a building permit before it can act on the applicant’s request for a variance. These appeals arise from a decision of the defendant New Britain zoning board of appeals (board) granting the defendant West Main Street Associates (West Main) a variance from certain parking space requirements. The plaintiffs appealed the decision of the board to the Superior Court pursuant to General Statutes § 8-8 (b). The trial court, Goldberg, J., upheld the board’s grant of the variance. The plaintiffs filed petitions for certification that were granted by the Appellate Court. The Appellate Court then consolidated the appeals, and we transferred the consolidated appeals to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

West Main is the owner of a building located at 667-677 West Main Street in New Britain. At all times relevant to these appeals, the building was leased in part to an entertainment center called The Sting and a cafe called Molly Malone’s Pub. In July, 1990, West Main agreed to lease the remaining space in its building to the American Totalisator Company for use as an off-track betting (OTB) parlor.

In October, 1990, West Main applied for a permit to establish an OTB parlor. The plaintiff Norman F. Wnuk, zoning enforcement officer for the city of New Britain, determined that the off-street parking available at West Main’s building would be insufficient under §§ 240-10 and 240-30 of the New Britain zoning ordinances (1966), as amended, if an OTB parlor were authorized as an additional use. Specifically, Wnuk determined that 320 on-site parking spaces would be required for the building—200 for The Sting, twenty for Molly Malone’s Pub and 100 for the OTB parlor. West Main represented to Wnuk that it could provide only 199 spaces. Wnuk suggested that West Main petition the board for a variance from the parking space requirements.

On April 15,1991, West Main submitted an application to the board. The application stated that West Main was both appealing Wnuk’s decision not to issue a budding permit and seeking a variance from § 240-10-20. The board held a hearing on the application on May 28, 1991. West Main challenged Wnuk’s calculation of the parking requirements at the hearing, but concedes that it did not otherwise prosecute the appeal. Following the hearing, the board voted five to two to grant West Main a variance from the parking space requirements of § 240-10-20. The board did not furnish any grounds for its decision to grant a variance and never voted on West Main’s appeal from Wnuk’s decision not to issue the building permit because of inadequate parking.

The plaintiffs appealed from the granting of the variance to the Superior Court. They contended that the variance should be overturned because it was not justified by any unusual hardship. Because the board did not state the reasons why it granted the variance, the trial court searched the record to find a basis for sustaining the variance. See Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, 220 Conn. 527, 544, 600 A.2d 757 (1991); Gagnon v. Inland Wetlands & Watercourses Commission, 213 Conn. 604, 607-608, 569 A.2d 1094 (1990); Ward v. Zoning Board of Appeals, 153 Conn. 141, 144, 215 A.2d 104 (1965). The court determined that “the basis for the claim of hardship was the lack of specificity in the zoning regulations concerning the classification of the uses at issue and the arbitrary classification of these uses by the zoning enforcement officer.” The trial court upheld the variance on this basis.

On appeal to this court, the plaintiffs make two principal arguments for overturning the variance: (1) the board’s failure to decide West Main’s appeal before granting a variance violated General Statutes § 8-6a; and (2) neither the alleged arbitrariness of the zoning officer’s decision, nor the purported uncertainty of the ordinances, constituted the undue hardship necessary to support a variance. Because we find these issues dis-positive, we do not consider the plaintiffs’ other arguments.

Local zoning boards are vested with a liberal discretion. Pleasant View Farms Development, Inc. v. Zoning Board of Appeals, 218 Conn. 265, 269, 588 A.2d 1372 (1991). A trial court must, however, review the decision of a zoning board of appeals to determine if the board acted arbitrarily, illegally or unreasonably. Id. We hold that, because the board acted illegally, it was improper for the trial court to uphold the variance.

General Statutes § 8-6a provides: “Whenever an application to a zoning board of appeals for the grant of a variance is joined with an appeal from any order, requirement or decision made by the official charged with the enforcement of this chapter, or any bylaw, ordinance or regulation adopted under the provisions of this chapter, the board shall first decide the issues presented by such appeal.” (Emphasis added.) The language of the statute mandates that where an applicant seeks both to appeal an order and to obtain a variance, the appeal must be decided before a variance may be granted. See Miniter v. Zoning Board of Appeals, 20 Conn. App. 302, 309, 566 A.2d 997 (1989) (“it was the board’s duty, pursuant to General Statutes § 8-6a, to review and decide the plaintiffs’ appeal before acting on the application for a variance”).

West Main concedes that it appealed Wnuk’s decision to the board, and it is clear from the record that the board never issued a decision on the appeal. The board, therefore, acted in violation of § 8-6a, and the trial court incorrectly upheld the variance instead of remanding the case to the board to resolve the appeal from Wnuk’s decision first.

Our resolution of this issue disposes of the appeal. Because it is an issue that could arise on remand, however, we deem it appropriate to address the plaintiffs’ claim that neither the alleged arbitrariness of Wnuk’s decision nor the arguable uncertainty of the parking ordinances can properly support a grant of variance in this case. We agree with the plaintiffs.

The arbitrariness of a zoning enforcement officer’s decision is an inappropriate basis for a finding of undue hardship. A variance “authorizes the landowner to use his property in a manner prohibited by the regulatimis. ” (Emphasis added.) Talarico v. Conkling, 168 Conn. 194, 198, 362 A.2d 862 (1975). A local zoning board can only grant a variance if “ ‘adherence to the strict letter of the zoning ordinance [is] shown to cause unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan.’ ” (Emphasis added.) Grillo v. Zoning Board of Appeals, 206 Conn. 362, 368, 537 A.2d 1030 (1988). A request for a variance therefore asserts that the ordinance in question prohibits the proposed use and seeks relief from the requirements of the ordinance. In contrast, a challenge to a zoning officer’s application of an ordinance asserts instead that the ordinance does not prohibit the proposed use. If the ordinance does not prohibit the use, then there can be no undue hardship and a variance is inappropriate. Accordingly, an allegation that a zoning enforcement officer acted arbitrarily in applying an ordinance cannot properly support the grant of a variance. We conclude that the trial court improperly allowed Wnuk’s allegedly erroneous actions to serve as a basis for the finding of undue hardship needed to support a variance.

The trial court also found that it was the “lack of specificity in the zoning regulations” together with Wnuk’s arbitrariness in calculating the parking space requirements that formed the basis for the board’s finding of undue hardship. Thus, we will also consider whether the uncertainty of a zoning ordinance may properly support a finding of undue hardship.

The defendants claim that §§ 240-10 and 240-30 of the New Britain zoning ordinances are impermissibly uncertain and cause undue hardship because they provide insufficient guidance on how to classify uses like The Sting or an OTB parlor. The only authority they cite for the proposition that the uncertainty of a zoning ordinance is a proper basis for a finding of undue hardship is Leveille v. Zoning Board of Appeals, 145 Conn. 468, 144 A.2d 45 (1958).

In Leveille, a 1950 zone change created a commercial zone of unascertainable depth within a residential zone. The uncertainty of the depth of the commercial zone made it impossible to determine how it applied to two parcels of property. Id., 470. The property owners sought either a change of zone or a clarification of the zoning boundaries established by the 1950 zone change. After these requests were denied, they sought and obtained a variance that allowed them to use their properties commercially. Id., 471,473. In upholding the zoning board’s grant of the variance, this court held that the undue hardship was “[t]he uncertainty as to what portions of the properties . . . were placed in a commercial zone in 1950 [which] practically destroyed their salability by rendering the title of each property unmarketable.” Id., 472.

Leveille is a unique case in our zoning jurisprudence and must be limited to its specific facts. The regulation at issue in Leveille was so vague that it was not even susceptible to interpretation. The properties were not usable for residential purposes because they were surrounded by commercial enterprises, and could not be put to commercial uses because the depth of the zone was uncertain. Id., 472. In contrast, the ordinances at issue in this appeal are susceptible to interpretation and have in fact been interpreted by a zoning official. Further, West Main can employ its property for any combination of uses that does not require more than 199 on-site parking spaces. Two uses—Molly Malone’s Pub and The Sting—already exist on the property.

Leveille must be placed in the category of cases holding that extreme financial hardship can support a grant of variance. See, e.g., Chevron Oil Co. v. Zoning Board of Appeals, 170 Conn. 146, 365 A.2d 387 (1976) (undue hardship may exist where strict application of a regulation would be tantamount to confiscation of the applicant’s property). We conclude that the alleged uncertainty of the zoning ordinances in question cannot support the finding of undue hardship needed for a variance.

The judgments are reversed and the cases are remanded to the trial court with direction that they be remanded to the board for a new hearing.

In this opinion the other justices concurred.

       There are five plaintiffs in these consolidated appeals. Norman F. Wnuk, the common council of the city of New Britain, and the building commission of the city of N ew Britain are the plaintiffs in the first appeal (Docket No. 14482). Two abutting landowners, The Stanley Works and American Savings Bank, are the plaintiffs in the second appeal (Docket No. 14484). These two groups of plaintiffs appealed separately to the Superior Court.

       The trial court consolidated the two appeals and issued a joint memorandum of decision dismissing them both.

       General Statutes § 8-8 (o) provides in relevant part: “There shall be no right to further review except to the appellate court by certification for review . . . .”

       Subsection 20 of § 240-10 of the New Britain zoning ordinances (1966), as amended, provides that if there are multiple uses on a property, then the off-street parking space requirements for that property ‘ ‘shall bo determined by establishing the requirements for each component use from the schedule of such requirements which is a part of this Section, and adding them together.” Section 240-30 provides the schedule of off-street parking space requirements for a number of specific nonresidential uses. Subsection 40 of § 240-10 provides that if a use is not specifically listed in the schedule, then “the requirement shall be the same as for the most similar listed use.”

       Wnuk classified both The Sting (800 person capacity) and Molly Malone’s Pub (80 seats) as a restaurant or club, which must provide one space per four permanent seats or the floor area equivalent. He classified the OTB parlor as an auditorium, theater “or other place of public assembly not otherwise classified,” which must provide one space for each eight permanent seats or the floor area equivalent. New Britain Zoning Ordinances § 240-30 (1966), as amended. Since the OTB parlor had not yet been constructed, Wnuk decided that 1800 square feet of the facility would be dedicated to public use and divided this square footage by the amount of space needed for a single seat. This yielded a seating capacity of 800 people, and an on-site parking requirement of 100 spaces for the OTB parlor.

       General Statutes § 8-6 provides in relevant part: “The zoning board of appeals shall have the following powers and duties: (1) To hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the official charged with the enforcement of this chapter or any bylaw, ordinance or regulation adopted under the provisions of this chapter . . . and (3) to determine and vary the application of the zoning bylaws, ordinances or regulations in harmony with their general purpose and intent and with due consideration for conserving the public health, safety, convenience, welfare and property values solely with respect to a parcel of land where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of such bylaws, ordinances or regulations would result in exceptional difficulty or unusual hardship . . . .”

       Specifically, we do not reach the plaintiffs’ claims that West Main did not exhaust its administrative remedies, and that the trial court improperly heard additional testimony and substituted its own reasons for those of the defendant zoning board of appeals. The plaintiffs also argue that the trial court improperly allowed West Main to raise the alleged arbitrariness of Wnuk’s actions and the purported uncertainty of the ordinances as special defenses to the appeal below. In light of our holding that neither the alleged arbitrariness of Wnuk’s actions nor the purported uncertainty of the ordinances could constitute undue hardship, these special defenses were legally insufficient.

       Furthermore, the legislature has determined that an appeal is the proper mechanism for challenging the decision of a zoning enforcement officer. General Statutes § 8-6 provides that a zoning board of appeals shall “hear and decide appeals where it is alleged that there is an error in any . . . decision made by the official charged with the enforcement of . . . any bylaw, ordinance or regulation . . . .” (Emphasis added.) We would undermine this statutory framework if we allowed the arbitrariness of a decision to serve as a basis for the finding of undue hardship needed to support a variance.

       West Main does not claim that the ordinances are unconstitutionally vague. See, e.g., Barberino Realty & Development Corporation v. Planning & Zoning Commission, 222 Conn. 607, 618-20, 610 A.2d 1205 (1992).

       The regulation changed the zoning of “ ‘the property fronting on both sides of West Main Street’ ” from residential to commercial. It, however, provided no indication of the intended depth of the zone change. Leveille v. Zoning Board of Appeals, 145 Conn. 468, 470, 144 A.2d 45 (1958).

       In addition, for a hardship to justify the granting of a variance, it “must be different in kind from that affecting generally properties in the same zoning district . . . .” (Internal quotation marks omitted.) B.I.B. Associates v. Zoning Board of Appeals, 163 Conn. 615, 616, 316 A.2d 414 (1972). Even if it is assumed that the uncertainty of an ordinance could cause a hardship, a variance would ordinarily be inappropriate because an identical claim could be made by any property owner who sought approval for a use that was not specifically addressed by the ordinance. For example, any property owner who wanted to establish an off-track betting parlor but did not have sufficient on-site parking could claim hardship based on the uncertainty of § 240-10-20 of the New Britain zoning ordinances (1966), as amended. The hardship would not be unique to the owner’s property, however, and therefore could not support a grant of variance. See Ward v. Zoning Board of Appeals, 153 Conn. 141, 145, 215 A.2d 104 (1965) (variance inappropriate where “the rationale behind the granting of a variance for one piece of property would apply in like manner to the surrounding properties”).