Opinion
FSTCV125013927S
05-11-2017
Charles Henry, III et al. v. Gregory Imbruce et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE THIRD-PARTY WITNESSES'S OBJECTION TO AND MOTION TO QUASH SUBPOENA AND MOTION FOR PROTECTIVE ORDER (#338); PLAINTIFF'S MOTION FOR ORDER REGARDING DEFENDANT GREGORY IMBRUCE'S DEPOSITION TESTIMONY (#345); AND PLAINTIFF'S MOTION FOR ORDER RE COMPLIANCE REGARDING SPOUSAL PRIVILEGE (#352)
Robert L. Genuario, J.
I. BACKGROUND
On or about September 11, 2015 after a contested proceeding the plaintiffs obtained an arbitration award against certain defendants including the defendant Gregory Imbruce (hereinafter the defendant unless otherwise specified). On April 11, 2016 after a robust briefing schedule and several intervening motions this court entered an order confirming the award in favor of the plaintiff and entering judgment in accordance with that award. The judgment entered by the court was in the amount of $7, 805, 544.05 as well as $5, 983.33 in costs. The defendants have taken an appeal from this court's decision confirming the award. Additionally on July 19, 2016 the court granted the plaintiffs' motion for supplemental attorneys fees in the amount of $164, 507.00 as well as the plaintiffs' application for prejudgment remedy in the amount of $8, 300, 000.00. According to the uncontested representations of the plaintiffs the judgment remains fully unsatisfied.
In an effort to discover assets from which the judgment (pending appeal) may be satisfied, the plaintiffs have engaged in postjudgment proceedings including discovery by a judgment creditor consistent with Connecticut General Statutes § 52-351b. Those postjudgment proceedings include interrogatories served upon the defendants and the deposition of the defendant. The plaintiffs have also issued a subpoena duces tecum to Alana Imbruce, the wife of the defendant Gregory Imbruce to appear at a video taped deposition. These various postjudgment proceedings give rise to the three motions presently before the court.
II. DISCUSSION
A. The Motion for Protective Order of the Third-Party Witness Alana Imbruce (#338)
Third-party witness Alana Imbruce (Mrs. Imbruce) seeks an order of this court quashing the subpoena and protecting her from responding to discovery or being deposed in this action.
Mrs. Imbruce argues that the subpoena should be quashed and the protective order should issue because she has no real knowledge of the events giving rise to the subject case. Accordingly, she argues that the efforts by the plaintiffs to take her deposition are beyond the scope of discovery authorized by Connecticut Practice Book § 13-2 et seq. Essentially, Mrs. Imbruce argues that unlike discovery permitted pursuant to Connecticut Practice Book § 13-2 et seq. this deposition is not likely to lead to evidence that would be of an " assistance in the prosecution or defense of the action." Rather Mrs. Imbruce argues that the motion is designed to pry into her personal affairs or perhaps lead to discovery of information that might be more pertinent in another pending case in which she is a defendant. See Henry v. Imbruce, Docket #CV166028034, judicial district of Stamford/Norwalk at Stamford (alleging a fraudulent conveyance from the defendant to Mrs. Imbruce).
In this regard Mrs. Imbruce's motion is not well taken. The plaintiffs do not seek to take Mrs. Imbruce's deposition pursuant to their right to discovery under Chapter 13 of the Connecticut Practice Book; rather the plaintiffs seek to take Mrs. Imbruce's deposition under their postjudgment procedural rights set forth in Connecticut General Statutes § 52-351b. Specifically, § 52-351b(a) states " a judgment creditor may obtain discovery from the judgment debtor, or from any third person the judgment creditor reasonably believes in good faith may have assets of the judgment debtor or from any financial institution to the extent provided by this section, of any matters relevant to satisfaction of the money judgment ." (Emphasis added.) Section 52-351b(c) states " the judgment creditor may obtain discovery, including the taking of depositions, from any persons served with interrogatories in accordance with procedures for discovery and civil actions without further order of the court." (Emphasis added.) Thus, the judgment creditor in its postjudgment proceedings may seek discovery of assets of the judgment debtor from any third party who the judgment creditor reasonably believes may have assets of the judgment debtor. Included in this right of discovery is the right to take depositions. In this regard the judgment creditor has already determined from its discovery directed at the defendant that the defendant has conveyed certain property to Mrs. Imbruce, that a company has been formed which is owned by Mrs. Imbruce for which the defendant provides consulting services. The company so formed provide services for customers in areas related to the defendant's experience and expertise. While these underlying facts do not in and of themselves necessarily prove that property or income enjoyed by Mrs. Imbruce actually belongs to the defendant it is sufficient to establish a good faith belief on the part of the plaintiffs and allow them to proceed with a discovery authorized by C.G.S. § 52-351b in an effort to determine facts which may lead to the discovery of assets of the judgment debtor.
Moreover, the fact that the defendants have taken an appeal from the judgment does not stay the plaintiffs' rights to proceed with this type of discovery. In the case of All Seasons Services, Inc. v. Guildner, 89 Conn.App. 781, 878 A.2d 370 (2005), during the pendency of an appeal from a judgment confirming an arbitration award, the plaintiff filed a judgment lien against the defendants' residence and proceeded with the service of postjudgment interrogatories and subsequently a petition for examination for judgment debtor. The defendant filed a motion to enforce the automatic stay set forth in Connecticut Practice Book § 61-11(a). The All Seasons court held the pursuit of postjudgment discovery including postjudgment interrogatories relating to the defendants' assets and proceedings to examine the judgment debtor were not the subject of an automatic stay. Because the primary purpose of postjudgment discovery is to identify assets that can be utilized at some later time to satisfy a money judgment once an appeal is resolved, we conclude that neither the examination of a judgment debtor or the service of postjudgment interrogatories is a proceeding to enforce or carry out the judgment in violation of Practice Book § 61-11(a). All Seasons Services, Inc. at 789.
Accordingly the third-party witnesses objection to the subpoena is overruled and her motion to quash and motion for protective order are denied.
B. Plaintiffs' Motion for Order (#345)
In their motion for order the plaintiffs seek an order of the court directing the defendant " to provide direct and complete answers during his deposition, and an order prohibiting the defendant from being evasive, obstructive, uncooperative, and dilatory during his deposition and throughout the discovery process." In support of their order the plaintiffs have provided the court with excerpts and references to the transcript of the defendant's postjudgment deposition, which the plaintiffs claim evidences the defendant's continual efforts to frustrate the plaintiffs' discovery of assets from which their judgment can be satisfied. While a review of the transcripts provided reveals the basis for the plaintiffs' frustration, the problem with the plaintiffs' request is that the order sought, issued prospectively, would inevitably be as meaningless as it is broad. Indeed such an order in the absence of more specificity with regard to prospective questions would be inappropriate.
The motion does also seek such other relief as the court deems fair and equitable. In this case the court has previously scheduled the postjudgment deposition of the defendant to be taken before the court so the court can rule on specific objections as the questions were being posed and issued orders requiring the defendant to provide authorizations to obtain information from third parties when his answers to questions lead to the conclusion that pertinent information was in the hands of third parties.
If the plaintiffs request, the court will once again make itself available for the continuation of the deposition of the defendant to be held in the courthouse so that the court is available to rule on specific objections and the sufficiency of specific answers in a timely manner.
C. Plaintiffs' Motion for Order of Compliance Regarding Spousal Privilege (#352)
During the postjudgment deposition of the defendant the defendant refused to answer multiple questions involving business and financial transactions because he learned of the information from discussions with his wife and claimed that the conversations with his wife were protected by the spousal privilege.
In State v. Christian, 267 Conn. 710, 841 A.2d 1158 (2004), our Supreme Court identified two different types of privileges. " The adverse spousal testimony privilege, which is codified at § 54-84a, belongs to the witness spouse. Under that privilege, the husband or wife of a criminal defendant has a privilege not to testify against his or her spouse in a criminal proceeding, provided that the couple is married at the time of trial. The marital communications privilege on the other hand permits an individual to refuse to testify, and to prevent a spouse or former spouse from testifying, as to any confidential communication made by the individual to the spouse during their marriage." Id. at 725. (Internal citations and quotations omitted.) The defendant in refusing to testify about communications between himself and Mrs. Imbruce in a case in which Mrs. Imbruce is not a defendant could only have relied upon the marital communications privilege. Connecticut has never ruled whether either spouse can invoke the confidential communication privilege or whether only the communicating spouse can do so. Tait & Prescott, Tait's Handbook of Connecticut Evidence, 5th Edition, Section 5.35.1 at 279. Within the context of the current dispute this court need not resolve that issue because, in any event, the communications that are protected must be confidential communications. Moreover, the test of whether or not a communication is confidential is an objective test. In other words a communication may be claimed as confidential if " at the time of the communication, the communicator could have had a reasonable expectation of confidentiality ." Id. at 738, (Emphasis in original.) The presumption of confidentiality can be rebutted if there is evidence that a third party was present during the communication. " Even when no third party actually was present, the presumption of confidentiality may be rebutted by evidence that the communication was intended or expected to be disclosed to a third party or to the public. See, e.g., In re Witness Before the Grand Jury, 791 F.2d 234, 239 (2d Cir. 1986) (communication concerning defendant's bank accounts, real estate transactions, credit cards, car registration and payment of insurance premiums not confidential because defendant knew information was or would be disclosed to the third party or public)." Id. at 739.
Applying this test to the various areas of inquiry in which the defendant refused to respond leads the court to conclude that the invocation of the spousal privilege by the defendant was inappropriate. For example, the defendant claimed the privilege when he was asked about his spouse's investments. Of course by virtue of the nature of investments, the investor knows that third parties other than their spouse would be acquainted with the investments made by the investor. No reasonable expectation of confidentiality concerning what the spouse invested in could exist. Another area of inquiry concerned the relationship between the defendant and the Penfield Group which is a business which the defendant testified is owned by his wife and from which the defendant received income by virtue of his acting as a consultant. To the extent the defendant was asked about ordinary transactions concerning the Penfield Group, such as the identity or existence of other consultants, or what industries the company serviced, there can be no reasonable expectation of confidentiality because this information would have to be shared with third parties in the normal course of business. The defendant was also asked about a transaction concerning the transfer of his interest in his home to Mrs. Imbruce and financial transactions leading up to that transfer as well as transactions regarding mortgages granted by Mrs. Imbruce to other lenders including the defendant's brother. Once again there can be no reasonable expectation of confidentiality since other parties would have known of these transactions. The limitations on the spousal privilege indicated in the discussion in State v. Christian is consistent with similar limitations held by other courts. In the case of G-Fours, Inc. v. Miele, 496 F.2d 809 (2d Cir. 1974), the court engaged in a discussion relating to the " ordinary business matters" exception to the marital privilege. The G-Fours court, citing such cases as Parkhurst v. Berdell, 110 N.Y. 386, 18 N.E. 123, 15 Civ. Proc. R. 354, 18 N.Y.S. 193 (1888), concluded that conversations between spouses relating to ordinary matters of business would not trigger the spousal confidential communication privilege. See also Spitz's Appeal, 56 Conn. 184, 14 A. 776 (1887).
Accordingly, the court rules that the confidential marriage privilege does not apply to testimony of the defendant relating to conversations that the defendant had with Mrs. Imbruce about ordinary business transactions and specifically with regard to the transactions involving the Penfield Group, her investments, the transfer of the defendant Imbruce's interest in their residence to her and any mortgage financing transactions relating to that residence. These same general principles shall apply with regard to inquiries into other subjects that consist of ordinary business matters. The plaintiffs' motion in that regard is granted to the extent it seeks a ruling that the defendant has improperly asserted the spousal confidential communications privilege and that the privilege cannot be used to shield communications between the defendant and Mrs. Imbruce concerning ordinary business transactions including property conveyances, Penfield Group transactions, contracts and other ventures. The court further orders that the defendant shall pay for the additional costs charged by the court reporter for the reconvened deposition. However, the court will decline to award attorneys fees or impose any sanctions upon the defendant at this time since the state of the law on confidential spousal communications in Connecticut is not a fully development and there are limited number of Connecticut Appellate Court cases discussing and applying the same. Of course if assertion of the privilege in contradiction to this court's ruling continues, the plaintiffs may renew their motion for attorneys fees and for sanctions.
IV. CONCLUSION
The plaintiffs' motion to quash and for protective order regarding the deposition of Alana Imbruce is denied. The plaintiffs' motion for order regarding direct and non evasive answers of the defendant is denied though the plaintiff may schedule a continued deposition of the defendant in the courthouse if they choose. The plaintiffs' motion for order regarding a ruling on the defendants' assertion of the spousal confidential communication privilege is granted without award of attorneys fees or sanctions, but the defendant will pay for the cost of the court reporter as expressly set forth herein.