Opinion
No. CV 03-0823990S
July 10, 2003
MEMORANDUM OF DECISION
I. #109.10 — Malapanis's Motion to Dismiss the Application for PJR
1. Mr. Regan's affidavit in support of the State's application for a prejudgment remedy contained some misstatements of fact and attached some incorrect documents.
2. The Court will assume, without deciding, that these misstatements were material.
3. Glanz v. Testa, 200 Conn. 406 (1986), and Lengyl Lengyl Builders, Inc. v. Hill, 1 Conn. App. 349 (1984), make clear that an insufficient affidavit can be augmented by testimony at the probable cause hearing.
4. Lauf v. James, 33 Conn. App. 223 (1993), makes clear that in the absence of a valid affidavit, the trial court lacks jurisdiction to issue a PJR.
5. Lauf recognizes three separate elements of jurisdiction of a court: personal, subject matter, and "jurisdiction to render the particular judgment." Lauf at 226.
6. Practice Book § 10-30 requires a motion to dismiss to be filed "within thirty days of the filing of an appearance."
7. Lack of personal jurisdiction can be waived; Practice Book § 10-32. Subject matter jurisdiction cannot be waived; Practice Book § 10-33.
8. This motion to dismiss was not filed within 30 days of the appearance.
9. For purposes of this ruling, the Court assumes, without deciding, that lack of "jurisdiction to render the particular judgment" is a form of subject matter jurisdiction which cannot be waived.
10. The court finds that the inaccuracies in the affidavit, even if material do not amount to the absence of a valid affidavit.
11. The motion to dismiss is denied.
II. #110 Motion to Vacate the Temporary Injunction
1. The Court, Langenbach, J., issued a temporary restraining order authorizing the Connecticut State Police to retain a check in the amount of $495,000 thereby effectively depriving the defendant of the use of the funds.
2. The TRO is effective until the application for the PJR is resolved following a hearing.
3. The defendants argue that because the application for the PJR should be dismissed, the TRO should be vacated.
4. Because the court has refused to dismiss the application for the PJR, it likewise refuses to vacate the TRO.
III. #108 — #111 Defendants' Motion to Quash Notice of Deposition
1. The defendants have moved to quash the notice of depositions because they argue the depositions serve no purpose if the application for the PJR is dismissed.
2. While the defendants are correct in their claim, the court has not dismissed the application.
3. However, leave of the judicial authority must be obtained if a "party seeks to take a deposition prior to the expiration of twenty days after the return date." Practice Book § 13-27(b).
4. Such leave is not required if the "adverse party has served a notice of deposition."
5. The defendants have served such notice with the leave of this Court.
6. The matter has not yet been returned to Court and consequently the return date has not yet been reached.
7. The court may quash the subpoena for the deposition if it finds the subpoena to be "unreasonable and oppressive."
8. The defendants have appeared before this judge three times and before Judge Langenbach once. The defendants have been deprived of the use of $495,000 notwithstanding the fact that no hearing has yet been held on the request for a prejudgment remedy.
9. Although this Court authorized limited depositions by the defendants to allow them to prepare for the prejudgment remedy hearing, the plaintiff has sought the prejudgment remedy and should be in possession of sufficient evidence to support its application.
10. The Court finds the plaintiff's notice of deposition to be "unreasonable and oppressive" prior to the return date of this action.
11. The motion to quash the notice of deposition is granted without prejudice for the renotice of the deposition following the hearing on the prejudgment remedy.
BY THE COURT
Kevin E. Booth, J.