Costello v. Goldstein & Peck, P.C. ( 2016 )

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JAMES T. COSTELLO ET AL. v. GOLDSTEIN
AND PECK, P.C., ET AL.
(SC 19475)
Rogers, C. J., and Palmer, Zarella, McDonald, Espinosa, Robinson and
Vertefeuille, Js.
Argued January 27—officially released May 3, 2016
Dorothy Smulley Costello, self-represented, with
whom, on the brief, was James T. Costello, self-repre-
sented, the appellants (plaintiffs).
Sean E. Boyd, with whom was Nadine M. Pare, for
the appellees (defendants).
Opinion
McDONALD, J. The plaintiffs, James T. Costello and
Dorothy Costello, proceeding as self-represented par-
ties, brought a legal malpractice action against the
defendants, Goldstein and Peck, P.C., William J. Kup-
inse, Jr., and Andrew M. McPherson. The trial court
rendered judgment dismissing the action after granting
the defendants’ motion to dismiss the complaint on the
ground that the writ of summons (summons) failed to
provide either a recognizance1 by a third party or a
certification of the plaintiffs’ financial responsibility as
required by General Statutes § 52-185 (a)2 and Practice
Book §§ 8-3 (a)3 and 8-4 (a).4 The Appellate Court sum-
marily affirmed the judgment of dismissal; Costello v.
Goldstein & Peck, P.C., 155 Conn. App. 905, 109 A.3d
552 (2015); and we granted the plaintiffs’ petition for
certification to appeal to this court.5 We conclude that
the trial court improperly failed to afford the plaintiffs
an opportunity to file a bond to avoid dismissal of the
action. Accordingly, we reverse the Appellate Court’s
judgment.
The record reveals the following undisputed facts.
The plaintiffs, a married couple, commenced the pre-
sent action by way of a complaint and a summons.6 The
name entered for the recognizance in the summons was
‘‘Dorothy A. Smulley,’’ which is the maiden name of
Dorothy Costello. The defendants moved to dismiss the
complaint, claiming that the trial court lacked personal
jurisdiction over them because the summons was defec-
tive due to the lack of either a recognizance by a third
party or a certification of the plaintiffs’ financial respon-
sibility. The plaintiffs opposed the motion, arguing that
the requirements under § 52-185 apply only to plaintiffs
who are not inhabitants of this state and that the signa-
ture of the assistant clerk taking the recognizance
attested to their financial responsibility.
The trial court heard oral argument on the motion.
In addition to the arguments advanced in their opposi-
tion to the motion, the plaintiffs contended that nothing
prevented one spouse from entering into a recognizance
for the other spouse. At one point, the court indicated
that it agreed with the defendants’ interpretation of the
statute, but also questioned whether the plaintiffs could
enter into recognizances for each other. It indicated at
the close of argument that it would issue a decision on
the basis of the papers filed by the parties.
Approximately two months later, the trial court
issued an order granting the motion to dismiss. The
order noted that no case law had adopted the plaintiffs’
interpretation of § 52-185. The order further noted that
the rules of practice and case law indicate that a plaintiff
cannot enter into a recognizance for himself or herself
and that only a third party may enter into a recogni-
zance. Accordingly, the court deemed the summons
defective. On the same day that the court granted the
defendants’ motion to dismiss, it rendered judgment
dismissing the case.
The plaintiffs appealed from the trial court’s judg-
ment to the Appellate Court and filed a motion for
articulation from the trial court. The plaintiffs requested
an articulation as to the standard that the trial court
had applied to determine that: (1) the summons was
defective; (2) the judgment of dismissal was in accord
with this court’s position on amendable recognizance
defects; and (3) that remedial provisions—General Stat-
utes §§ 52-123, 52-126, 52-128 and Practice Book § 8-5
(b)—did not apply.
Over the defendants’ objection, the trial court issued
an articulation. In response to the second and third
requests, the articulation acknowledged that § 52-185
(d) and Practice Book § 8-5 (b) permit a court to order
a plaintiff to file a bond to cure a defective summons,
as well as the fact that a defective summons is amend-
able even after a motion to dismiss has been filed. See
Franchi v. Farmholme, Inc., 191 Conn. 201, 208, 464
A.2d 35 (1983). The articulation then explained: ‘‘The
plaintiffs had several options under Connecticut rules
of practice to correct their errors. First, the plaintiffs
could have requested the remedy provided by Practice
Book [§] 8-5 (b) which would have provided a period
of two weeks within which time to submit a proper
recognizance and bond. The plaintiffs did not, during
argument, nor have they to date requested the remedy
provided in Practice Book § 8-5 (b). Had the plaintiffs
so requested or had [the] plaintiffs at any time filed a
bond the court would have deemed the defect to have
been cured. Had the plaintiff[s] filed the recognizance
in proper form as required under § 52-185 and therefore
cured the defective process, the court would have been
able to order the clerk to treat the filing of the plaintiffs’
recognizance as if the summons were amended to
include same. This was the procedure which the court
was prepared to follow, but the plaintiffs chose not to
cure the defect, electing, rather, to maintain the position
argued at short calendar for the two months that passed
between the court taking the papers at short calendar
and the court granting the motion to dismiss, i.e., that
the same person can file an action as a plaintiff and
use a different name to satisfy the recognizance require-
ment. Because of the plaintiffs’ insistence on this
threshold issue, the court was unable to reach the rem-
edy provided by [Practice Book §] 8-5 (b). Thus, the
plaintiffs’ insistence regarding the identity of the party
signing the recognizance precluded the court from
ordering a bond to be filed within two weeks. . . .
Nonetheless, had the plaintiffs acknowledged the
requirement that the recognizance required the signa-
ture of a third party, the court would have then pro-
ceeded to order the plaintiffs to file a bond, thereby
curing the defect as provided in Practice Book § 8-5
(b). It is unfortunate that this did not occur.’’
The court also opined that the plaintiffs could have
filed a motion to reargue to establish their intention to
cure the defective recognizance, but elected instead to
pursue their appeal. The court noted that it had
neglected to state in its original order that it had ‘‘always
been willing’’ to allow the plaintiffs to cure the defect,
and that it still would be willing to allow them to do
so if they requested such an opportunity by way of a
motion to reargue.
The Appellate Court thereafter issued a per curiam
opinion summarily affirming the judgment of dismissal.
Costello v. Goldstein & Peck, P.C., supra, 155 Conn.
App. 905. The plaintiffs’ certified appeal to this court
followed. See footnote 5 of this opinion.
The plaintiffs’ argument is twofold. First, they con-
tend that the trial court’s interpretation of § 52-185 was
incorrect and based on an omission of the controlling
phrase referring to a plaintiff who is ‘‘not an inhabitant
of this state. . . .’’7 Second, the plaintiffs claim that the
trial court’s articulation evidences that it improperly
shifted the burden to them to seek remedial measures
that they did not know existed and of which they were
not informed, when the authority rested with the court.
They contend that the trial court had the authority to
order them to file a bond to cure the ‘‘circumstantial’’
defect in the summons, and had it done so, they would
have complied.
We conclude that the judgment must be reversed
because the trial court improperly failed to afford the
plaintiffs an opportunity to file a bond before it dis-
missed the action in accordance with the remedial pro-
visions under the statute and the rule of practice. We
conclude that it is unnecessary to address the trial
court’s construction of the recognizance requirements
under § 52-185 for two reasons. First, the filing of a
bond, which the plaintiffs represent that they would
have done had they known that they could do so to avoid
dismissal, would have rendered moot any objection to
the form of the recognizance and the action would have
proceeded on the merits. Second, the recognizance and
bond requirements of § 52-185 were substantively
altered, effective October 1, 2015, after the parties had
filed their briefs in this court.8 See Public Acts 2015, No.
15-85, § 14. Accordingly, there is little value to providing
guidance on the application of the repealed provision.9
The requirements under our statutes and rules of
practice raise a question of law, to which we apply
plenary review and settled rules of construction. See
General Statutes § 1-2z (plain meaning rule); Brennan
v. Brennan Associates, 316 Conn. 677, 684, 113 A.3d
957 (2015) (statute); Wexler v. DeMaio, 280 Conn. 168,
181–82, 905 A.2d 1196 (2006) (rule of practice); cf. State
v. Saucier, 283 Conn. 207, 218, 926 A.2d 633 (2007)
(distinguishing trial court’s interpretation of Code of
Evidence, subject to plenary review, from court’s appli-
cation of correct view of law, subject to review for
abuse of discretion).
Remedies for a failure to comply with the recogni-
zance or certification requirements under § 52-185 (a)
and Practice Book §§ 8-3 and 8-4; see footnotes 2
through 4 of this opinion; are respectively provided in
§ 52-185 (d) and Practice Book § 8-5. The statute pro-
vides in relevant part: ‘‘If there has been a failure to
comply with the provisions of this section . . . the
validity of the [summons] and service shall not be
affected unless the failure is made a ground of a plea
in abatement [currently a motion to dismiss].10 If such
plea in abatement is filed and sustained or if the plaintiff
voluntarily elects to cure the defect by filing a bond,
the court shall direct the plaintiff to file a bond to
prosecute in the usual amount. Upon the filing of the
bond, the case shall proceed in the same manner and
to the same effect as to rights of attachment and in all
other respects as though the failure had not occurred.
. . .’’ (Footnote added.) General Statutes § 52-185 (d).
Practice Book § 8-5 provides in relevant part: ‘‘(a)
When there has been a failure to comply with the provi-
sions of [§§] 8-3 and 8-4; the validity of the [summons]
and service shall not be affected unless the neglect is
made a ground of a motion to dismiss.
‘‘(b) If the judicial authority, upon the hearing of the
motion to dismiss, directs the plaintiff to file a bond to
prosecute in an amount deemed sufficient by the judi-
cial authority, the action shall be dismissed unless the
plaintiff complies with the order of the judicial authority
within two weeks of such order.
‘‘(c) Upon the filing of such bond, the case shall
proceed in the same manner and to the same effect as
to rights of attachment and in all other respects as
though the neglect had not occurred. . . .’’
In considering the scope and application of these
remedial provisions, we are mindful that ‘‘[i]t is our
expressed policy preference to bring about a trial on
the merits of a dispute whenever possible and to secure
for the litigant his day in court. . . . The design of the
rules of practice is both to facilitate business and to
advance justice; they will be interpreted liberally in any
case where it shall be manifest that a strict adherence
to them will work surprise or injustice. . . . Our prac-
tice does not favor the termination of proceedings with-
out a determination of the merits of the controversy
where that can be brought about with due regard to
necessary rules of procedure.’’ (Internal quotation
marks omitted.) Boyles v. Preston, 68 Conn. App. 596,
603, 792 A.2d 878, cert. denied, 261 Conn. 901, 802 A.2d
853 (2002).
In accordance with this policy, we observe that it is
common practice in the Superior Court either to deny
or to reserve judgment on a motion to dismiss premised
on a defective recognizance and to order the plaintiffs
to file a bond or to provide an opportunity to otherwise
cure that defect.11 See, e.g., Thompson v. Esserman,
Superior Court, judicial district of New Haven, Docket
No. CV-12-5034209-S (October 3, 2012); Samuel v. Chil-
dren’s Advocacy Center, Superior Court, judicial district
of Hartford, Docket No. CV-10-5034917-S (July 12, 2011);
Ridgefield Bank v. Stones Trail, LLC, Superior Court,
judicial district of Stamford, Docket No. CV-02-0188226-
S (April 2, 2003); Quinones v. Armstrong, Superior
Court, judicial district of Hartford, Docket No. CV-02-
0816230 (November 21, 2002); Loughery v. Commis-
sioner of Correction, Superior Court, judicial district
of Hartford, Docket No. CV-01-0812161-S (July 9, 2002);
Greenview Associates v. Milford, Superior Court, judi-
cial district of Ansonia-Milford at Milford, Docket No.
CV-92-039982-S (January 11, 1993).
The defendants contend, however, that the trial court
has discretion whether to order the posting of a bond.
Specifically, they posit that the statute and the rule of
practice are in conflict, because the former mandates
that the court order the posting of a bond when there
has been a failure to enter into a valid recognizance or
provide a certification of financial responsibility,
whereas the latter vests the court with discretion to
make such an order. They further contend that the rule
of practice trumps the statute when such a conflict
exists. We conclude that, even assuming without decid-
ing that the defendants are correct as to each of these
points, the trial court nonetheless plainly abused its dis-
cretion.
‘‘While it is normally true that this court will refrain
from interfering with a trial court’s exercise of discre-
tion . . . this presupposes that the trial court did in
fact exercise its discretion. [D]iscretion imports some-
thing more than leeway in decision-making. . . . It
means a legal discretion, to be exercised in conformity
with the spirit of the law and in a manner to subserve
and not to impede or defeat the ends of substantial
justice.’’ (Internal quotation marks omitted.) Gateway
Co. v. DiNoia, 232 Conn. 223, 239, 654 A.2d 342 (1995).
‘‘[T]he court’s discretion should be exercised mindful
of the policy preference to bring about a trial on the
merits of a dispute whenever possible and to secure
for the litigant his day in court.’’ (Internal quotation
marks omitted.) Millbrook Owners Assn., Inc. v. Hamil-
ton Standard, 257 Conn. 1, 16, 776 A.2d 1115 (2001).
Whether the trial court failed to exercise discretion
because it concluded that it was compelled to act in a
particular fashion is a matter to which we apply plenary
review. See Wichers v. Hatch, 252 Conn. 174, 181–82,
745 A.2d 789 (2000).
The trial court’s articulation reflects its belief that it
had no authority to act in the absence of an admission
by the plaintiffs that the summons was defective or a
request by them to file a bond. The articulation stated
in relevant part: ‘‘Because of the plaintiffs’ insistence
on this threshold issue [that the recognizance was
proper], the court was unable to reach the remedy pro-
vided by [Practice Book §] 8-5 (b). Thus, the plaintiffs’
insistence regarding the identity of the party signing
the recognizance precluded the court from ordering a
bond to be filed within two weeks.’’ (Emphasis added.)
Neither the statute nor the rule of practice, however,
imposes any such restraint. As such, the court’s failure
to recognize its authority to act constituted an abuse
of discretion. See State v. Lee, 229 Conn. 60, 73–74,
640 A.2d 553 (1994) (‘‘[i]n the discretionary realm, it
is improper for the trial court to fail to exercise its
discretion’’); State v. Martin, 201 Conn. 74, 88, 513 A.2d
116 (1986) (‘‘[w]here, as here, the trial court is properly
called upon to exercise its discretion, its failure to do
so is error’’).
To the extent that the trial court’s articulation could
be interpreted to suggest that it believed that an order
to file a bond before dismissing the action would have
been futile, as the defendants contend, there is simply
no basis in the record to support such a belief. At oral
argument on the motion to dismiss, the plaintiffs
undoubtedly were unequivocal that the recognizance
complied with the requirements under the statute and
rules of practice. They never stated, however, that they
would be unwilling to cure a defect should one be
determined to exist that would require dismissal of the
action. Although the plaintiffs did not request, in the
alternative, an opportunity to cure should the court
conclude that dismissal was required, the failure to
make such a request cannot reasonably be equated with
a refusal to comply with an order of the court to under-
take some action to cure the defect.12 Cf. Royster v.
Crown Towing, Superior Court, judicial district of New
Haven, Docket No. CV-11-5033931-S (December 21,
2011) (plaintiffs repeatedly asked for extensions of time
to correct defective recognizance and repeatedly failed
to cure). At no time during that argument did the court
raise the subject of bond or any other cure, which is in
tension with this court’s repeated guidance that ‘‘[t]his
court has always been solicitous of the rights of [self-
represented] litigants and, like the trial court, will
endeavor to see that such a litigant shall have the oppor-
tunity to have his case fully and fairly heard so far as
such latitude is consistent with the just rights of any
adverse party.’’ Conservation Commission v. Price, 193
Conn. 414, 421 n.4, 479 A.2d 187 (1984); accord New
Haven v. Bonner, 272 Conn. 489, 497–98, 863 A.2d 680(2005); Connecticut Light & Power Co. v. Kluczinsky,
171 Conn. 516, 519, 370 A.2d 1306 (1976).
Additionally, the trial court’s statements during that
hearing did not give the plaintiffs clear notice that the
court had concluded that dismissal was required. To
the contrary, although the court expressed a view that
Dorothy Costello could not enter into a recognizance
for herself, it questioned whether the plaintiffs could
enter into recognizances for each other. The court did
not issue an oral ruling, instead indicating that a deci-
sion would be forthcoming that would be decided on the
basis of the parties’ submissions to the court. Indeed,
because the statute contemplates that the trial court
will order a bond to be filed after a plea in abatement
(motion to dismiss) has been ‘‘filed and sustained’’;
(emphasis added) General Statutes § 52-185 (d); the
plaintiffs reasonably could have believed that a ruling
on the motion to dismiss would not require judgment
to be immediately rendered dismissing the action.
Accordingly, any assumption that it would have been
futile to order the plaintiffs to file a bond would have
been speculative. Consequently, declining to issue such
an order on this basis also would have been an abuse
of discretion.
Notably, the articulation unambiguously indicated
that the court would have allowed the plaintiffs to file a
bond if they were willing to do so. Because the plaintiffs
have represented to this court that they had been willing
to file a bond to avoid dismissal of their action, we
conclude that the case should be remanded to the trial
court to afford them that opportunity. On remand, the
parties are free to address to what extent, if any, the
recent amendments to § 52-185 bear on the plaintiffs’
obligations, a matter that was not addressed before this
court. See footnote 8 of this opinion.
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
reverse the judgment of the trial court and to remand
the case to that court for further proceedings consistent
with this opinion.
In this opinion the other justices concurred.
1
‘‘A recognizance is an obligation acknowledged before some court for
a certain sum, with condition that the plaintiff shall prosecute a suit pending
in court, or for the prosecution of an appeal. . . . A recognizance is in
effect a bond as to its obligation. . . . It imports an acknowledgment. . . .
Personal appearance is essential to an oral acknowledgment.’’ (Citations
omitted; internal quotation marks omitted.) Palmer v. Des Reis, 136 Conn.
232, 233, 70 A.2d 141 (1949). The purpose of the recognizance is to ensure
‘‘that the plaintiff shall prosecute his action to effect and answer all costs
for which judgment is rendered against him.’’ General Statutes § 52-185 (a).
2
General Statutes § 52-185 (a) provides: ‘‘If the plaintiff in any civil action
is not an inhabitant of this state, or if it does not appear to the authority
signing the process that the plaintiff is able to pay the costs of the action
should judgment be rendered against him, the plaintiff shall enter into a
recognizance to the adverse party with a financially responsible inhabitant
of this state as surety, or a financially responsible inhabitant of this state
shall enter into a recognizance to the adverse party, that the plaintiff shall
prosecute his action to effect and answer all costs for which judgment is
rendered against him. The recognizance shall not be discharged by any
amendment or alteration of the process between the time of signing and of
serving it.’’
Section 52-185 was substantively amended effective October 1, 2015. Pub-
lic Acts 2015, No. 15-85, § 14. Unless otherwise indicated, we refer in this
opinion to the 2015 revision of the statute.
3
Practice Book § 8-3, titled ‘‘Bond for Prosecution,’’ essentially mirrors
§ 52-185 (a). See footnote 2 of this opinion.
4
Practice Book § 8-4, titled ‘‘Certification of Financial Responsibility,’’
provides in relevant part: ‘‘(a) . . . [I]n all actions wherein costs may be
taxed against the plaintiff, no mesne process shall be issued until the recogni-
zance of a third party for costs has been taken, unless the authority signing
the [summons] shall certify thereon that he or she has personal knowledge
as to the financial responsibility of the plaintiff and deems it sufficient. . . .’’
5
We granted the plaintiff’s petition for certification limited to the following
issue: ‘‘Did the Appellate Court properly affirm the trial court’s dismissal
of the complaint for failure to comply with . . . § 52-185?’’ Costello v.
Goldstein & Peck, P.C., 316 Conn. 916, 113 A.3d 71 (2015).
6
The record reflects an appearance filed by James T. Costello on behalf
of himself. In response to questions at oral argument before this court,
Dorothy Costello represented that she also had filed an appearance. Our
review of the record reveals no such appearance. Nonetheless, the defen-
dants argued that she should be deemed a party for purposes of the recogni-
zance because she always had held herself out as such, including before
this court. For purposes of this opinion, we assume, without deciding, that
Dorothy Costello is a party plaintiff to this case.
7
The plaintiffs also argue that the defendants waived their right to chal-
lenge the trial court’s jurisdiction over them by filing a general appearance,
a motion for an extension of time, and an objection to the plaintiffs’ motion
to transfer venue. We decline to address this issue because the plaintiffs
did not raise it before the trial court or the Appellate Court. See Southport
Congregational Church–United Church of Christ v. Hadley, 320 Conn. 103,
119 n.21, 128 A.3d 478 (2016).
8
General Statutes (Supp. 2016) § 52-185 provides in relevant part: ‘‘(a) No
bond or recognizance for prosecution is required from a party in any civil
action unless the judicial authority, upon motion and for good cause shown,
finds that a party is not able to pay the costs of the action and orders that
the party give a sufficient bond or enter into a recognizance to an adverse
party with a financially responsible person to pay taxable costs. . . .
‘‘(d) Any party failing to comply with an order of the judicial authority
to give sufficient bond or recognizance may be nonsuited or defaulted.’’
We note that the corresponding rules of practice have not yet been
amended to conform to this change. See Practice Book §§ 8-3 through 8-5;
see generally Harnage v. Lightner, 163 Conn. App. 337, 361 and n.16,
A.3d (2016) (discussing legislative intent and quoting Judiciary Committee
testimony of Honorable Patrick L. Carroll III, then deputy chief court admin-
istrator, in support of amendment limiting circumstances under which recog-
nizance is required in which he stated that recognizance bond ‘‘unnecessarily
increases the burden on self-represented [plaintiffs] . . . and does not pro-
vide any realistic security for costs of an action’’ [internal quotation
marks omitted]).
9
We feel compelled to note, however, that the record does not support
the plaintiffs’ serious accusation that the defendants intentionally misrepre-
sented the text of § 52-185 (a) in order to mislead the trial court by omitting
the introductory, and, in the plaintiffs’ view controlling, phrase: ‘‘If the
plaintiff in any civil action is not an inhabitant of this state, or . . . .’’ The
defendants’ memorandum of law in support of their motion to dismiss
properly indicated that they had omitted text from the beginning of § 52-
185 (a) by quoting it in relevant part as follows: ‘‘[I]f it does not appear to
the authority signing the process . . . .’’ This approach conforms to the
standard practice of legal citation, which directs that: ‘‘An ellipsis should
never be used to begin a quotation . . . . Where the beginning of the quoted
sentence is being omitted, capitalize the first letter of the quoted language
and place it in brackets if it is not already capitalized . . . .’’ The Bluebook:
A Uniform System of Citation (20th Ed. 2015) § 5.3, p. 85. During oral
argument to the trial court, the defendants acknowledged, on three occa-
sions, the language on which the plaintiffs relied and explained why they
believed it did not control.
10
‘‘A motion to dismiss . . . has replaced the plea in abatement as the
vehicle for challenging the court’s jurisdiction . . . .’’ Concept Associates,
Ltd. v. Board of Tax Review, 229 Conn. 618, 625, 642 A.2d 1186 (1994).
11
Although the trial court’s articulation cited a few Superior Court cases
in which a motion to dismiss was granted without providing an opportunity
to cure, we agree with Judge Devine’s assessment of the case law: ‘‘While
some courts have immediately dismissed complaints for such failure . . .
many others have granted the plaintiff two weeks to file recognizance before
dismissal. . . . The latter approach seems more faithful to the Practice
Book.’’ (Citations omitted.) Traylor v. State, Superior Court, judicial district
of New London, Docket No. CV-13-5014624-S (January 9, 2014).
12
Although the trial court’s articulation cited the plaintiffs’ decision to
appeal rather than file a motion to reargue, the plaintiffs’ appeal could not
have played any role in the trial court’s assessment of whether to order the
plaintiffs to file a bond prior to granting the motion to dismiss and rendering
judgment thereon. Similarly, we disagree with the defendants’ reliance on
the fact that the articulation indicated that the court was amenable to
allowing them to cure the defect even after they had appealed if they filed
a motion to reargue and asserted therein their intention to cure the defect.
This aspect of the articulation reinforces the view that the trial court improp-
erly believed that a request by the plaintiffs to cure was a condition precedent
to its ability to order the plaintiffs to file a bond.