Opinion
No. CV 06 5001478-S
November 2, 2007
MEMORANDUM OF DECISION RE MOTION TO CONDUCT DEPOSITION OF THE DEFENDANTS OUTSIDE THE PRESENCE OF EACH OTHER #117
This is an action by the plaintiffs for damages resulting from allegedly fraudulent statements and misrepresentations claimed by to have been made by the defendants in connection with the sale of the defendants' residence to the plaintiffs.
The plaintiffs have moved to conduct the depositions of the defendants "outside" the presence of each other to which the defendants have filed an objection. Both parties have provided the court with memoranda in support of their positions.
I BACKGROUND
The defendants' depositions were scheduled for 10:00 a.m. and 11:30 a.m. on August 30, 2007, at the office of the plaintiffs' attorney. Prior to commencement of the defendant husband's deposition, the plaintiffs' attorney proposed that the defendants' depositions be taken out of the presence of each other. The defendants' attorney objected to the proposal and the depositions were canceled. The plaintiffs now move for an order that the defendants' depositions be taken out of each other's presence.
The defendants argue in their objection to the motion that "a party to litigation has the right to be present at the taking of a deposition." Anderson v. Snyder, 91 Conn. 44, 408, 99 A. 1032 (1917). The plaintiffs rely on the court's observation in Anderson that "An occasion may arise where, to prevent a similarity of statements by different witnesses, the court may exclude any witness, including a party to the litigation, from the courtroom, but this is a power to be sparingly exercised and only upon clearest grounds so far as the party is concerned." Id. at 409-10.
The facts in Anderson are notably different from the case at bar. In Anderson, judgment for the plaintiff was reversed on the grounds that the trial court erred in permitting the jury to consider the plaintiff's testimony taken at a deposition at which the defendant was not permitted to be present. The reason for the taking of the plaintiff's deposition in Anderson was on account of her age and physical infirmities and although the court noted that her attorneys objected to the presence of the defendant on the basis of the effect that it would have on her condition, the court went on to say that "The object of the trial is the ascertainment of the truth." Id. at 409. In reversing the judgment for the plaintiff the court concluded "We think it the fairer and better practice to permit the presence of the adverse party at the taking of a deposition: and so far as we are informed, this has been our practice." (Emphasis added.) Id. at 410.
The defendants also cite Clark v. Kennett, Docket No. CV 04 0092605, 2004 WL 2094766, 37 Conn. L. Rptr. 670 (Conn.Super.Ct. August 16, 2004) in support of their opposition to the motion. In Clark, an action for personal injuries resulting from an automobile collision, the nature of the action and the facts were distinctly different from the present matter.
In this action, the plaintiffs have alleged that the defendants fraudulently misrepresented the condition of their property "themselves" and in the property condition disclosure required to be delivered by C.G.S. § 20-327b.
C.G.S. § 20-327b provides that the seller's certification in the property condition disclosure be made "To the extent of the seller's knowledge as a property owner . . ." Moreover, Sec. 20-327e provides that "The representations made by the seller pursuant to section 20-327b . . . shall be construed only to extend to the seller's actual knowledge of the property . . ." "[A] plaintiff may seek relief under § 20-327b only for a knowing misrepresentation in the statutory report." Dockter v. Slowik, 91 Conn.App. 448, 457, 881 A.2d 479, cert. denied, 276 Conn. 919, 888 A.2d 87 (2005).
"The essential elements of an action in fraud are: (1) that a false representation was made as a statement of fact; (2) that it was untrue and known to be untrue by the party making it; (3) that it was made to induce the other party to act on it; and (4) that the latter did so act on it to his injury." (Internal quotation marks omitted.) Updike, Kelly Spellacy, P.C. v. Beckett, 269 Conn. 613, 643, 850 A.2d 145 (2004). "A party alleging fraudulent misrepresentation must prove the existence of the first three of [the] elements by a standard higher than the usual fair preponderance of the evidence, which higher standard we have described as clear and satisfactory or clear, precise and unequivocal." (Internal quotation marks omitted.) Wallenta v. Moscowitz, 81 Conn.App. 213, 220, 839 A.2d 641, cert. denied, 268 Conn. 909, 845 A.2d 414 (2004).
Unlike the plaintiff in Anderson, the plaintiffs have not sought to exclude the defendants from the deposition of an adverse party but seek to sequester the defendants from each other's depositions. Unlike an action for personal injuries, a plaintiff in an action alleging fraud must prove his case by a higher standard of evidence and often through the testimony of the defendant or by inference from other facts proven. The court is mindful of the need to uphold the right of a party to be present at all stages of a trial, including depositions. However, given the nature of the pending matter and the requirement that, in an action for fraudulent misrepresentation, a plaintiff must prove actual knowledge on the part of a defendant, equal consideration must be given to the admonition in Anderson that "The object of the trial is the ascertainment of the truth." Id. These considerations in an action such as the pending matter, may present the "occasion," referred to in Anderson, "where to prevent similarity of statements" the sequestration of co-defendants' depositions may be justified.
The plaintiffs' motion is hereby granted.