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KNIGHTS OF COLUMBUS v. SALISBURY1/22/1985
This is an action to recover the balance due on an installment promissory note. The matter was tried to the court, and the judgment rendered in favor of the plaintiff is the subject of this appeal.
On appeal, the defendant claims that the trial court erred (1) in failing to grant his motion to dismiss, (2)
in striking several of his various special defenses, (3) in sustaining the plaintiff's objection to his discovery requests, and (4) in concluding that the plaintiff did not wilfully violate the disclosure provisions of General Statutes (Rev. to 1977) 42-87.
I
The defendant first claims that the trial court erred in not dismissing the present action. He contends that the trial court had neither personal jurisdiction nor subject matter jurisdiction because the plaintiff's attorney had previously represented the defendant.
The claim of a lack of personal jurisdiction is as close to meritless as it is possible to get. The defendant is a resident of the state, abode service was made upon him and the jurisdiction of the court over him is obvious. Standard Tallow Corporation v. Jowdy, 190 Conn. 48, 51-52, 459, A.2d 503 (1983). The claim of a lack of subject matter jurisdiction is equally virtueless. Subject matter jurisdiction refers to whether the court has competence to entertain the action before it. Meinket v. Levinson, 193 Conn. 110, 115, 474 A.2d 454 (1984). General Statutes 51-164s provides that the Superior Court shall be the sole court of original jurisdiction for all causes of action except actions over which the courts> of probate have original jurisdiction.
Authorities cited by the defendant from other jurisdictions, which address the claim of whether a prior attorney-client relationship between the defendant and the plaintiff's attorney subject a complaint to dismissal, are inapposite. Doe v. A. Corporation, 330 F. Sup. 1352
(S.D.N.Y. 1971), aff'd, sub nom. Hall v. A. Corporation, 453 F.2d 1375 (2d Cir. 1972), and Slater v. Rimar, Inc., 462 Pa. 138, 338 A.2d 584 (1975), considered the issue of dismissal pursuant to the court's supervisory powers over litigation and the conduct of attorneys. Cf. Practice Book 231. Furthermore, the cases were dismissed without prejudice, unlike the dismissal sought here.
The record reveals that this motion was also considered, more appropriately, as a motion to disqualify the plaintiff's attorney. The defendant asserts that the trial court erred in failing to provide him with an evidentiary hearing on the matter. Alternatively, he contends that the trial court should have granted his motion on the basis of his affidavit and of the supporting documentation submitted.
The defendant informed the trial court that he wanted an evidentiary hearing on the matter by filing, in accordance with Practice Book 211, a request for oral argument and an opportunity to present testimony. When the matter came before the trial court, however, he stated that no testimony was necessary. Thus, he waived his claim to an evidentiary hearing.
Notwithstanding that fact, the defendant argues that the court, sua sponte, should have conducted an evidentiary hearing. The defendant mistakenly relies on Garden Mutual Benefit Assn. v. Levy, 37 Conn. Sup. 790, 437 A.2d 141 (1981), to support that proposition. That case held that where affidavits filed by both parties disclosed the presence of issues of fact in connection with a motion to dismiss, an evidentiary hearing must be conducted. A factual dispute triggers the hearing requirement. The plaintiff's attorney here submitted no counter affidavits and the facts were not disputed
since the pla
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