Bloch v. Ullman , 167 Conn. App. 62 ( 2016 )

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ROBERT M. BLOCH v. ANDREW ULLMAN ET AL.
(AC 37847)
Lavine, Alvord and Sheldon, Js.
Argued April 13—officially released July 19, 2016
(Appeal from Superior Court, judicial district of New
Haven, Wilson, J.)
Robert M. Bloch, self-represented, the appellant
(plaintiff).
Irving H. Perlmutter, self-represented, with whom,
on the brief, was Andrew M. Ullman, self-represented,
the appellees (defendants).
Opinion
LAVINE, J. The self-represented plaintiff, Robert M.
Bloch, appeals from the judgment of the trial court
dismissing his action against the defendant attorneys,
Andrew Ullman and Irving Perlmutter, on the ground
that he failed to file a recognizance bond as required
by General Statutes (Rev. to 2013) § 52-185.1 The issue
on appeal, as succinctly stated by the defendants,2 is
whether a judgment of dismissal properly entered
against the plaintiff on December 9, 2014, when he failed
to comply with the November 24, 2014 order of the
court, Wilson, J., that he file a recognizance bond for
costs in accordance with Practice Book § 8-43 and Gen-
eral Statutes (Rev. to 2013) § 52-185 within two weeks.4
We affirm the judgment of the trial court.
The record discloses the following facts. On August
14, 2014, the plaintiff filed an application, asking the
court to waive the entry fee and service of process fee,5
which was granted by the court, A. Robinson, J., on
August 18, 2014. On August 26, 2014, the plaintiff com-
menced the present action against the defendants.6
On or about August 28, 2014, Perlmutter sent the
plaintiff a letter via first class and certified mail, in
which he stated: ‘‘This will acknowledge receipt of your
summons and complaint dated August 14, 2014.
‘‘Pursuant to Section 8-3 (a)7 of the Connecticut Supe-
rior Court Rules and Section 52-185 of the Connecticut
General Statutes, you are required to furnish a bond
for prosecution of your action. You have failed to do
so and the summons contains no recognizance.
‘‘In accordance with Practice Book § 8-78 you are
hereby requested to furnish a recognizance signed by
some financially responsible person as surety that you
shall prosecute your action to effect and answer all
damages if you do not make your plea good.
‘‘You are required to either refuse this request or to
file a satisfactory bond within a reasonable time after
receipt of this request in accordance with the provisions
of Practice Book Section 8-7.’’ (Footnotes added.)
The plaintiff returned the summons and complaint
to court on September 8, 2014. On October 7, 2014,
pursuant to Practice Book § 10-30, the defendants filed
a motion to dismiss the plaintiff’s action with an accom-
panying memorandum of law. In their memorandum of
law, the defendants stated that the plaintiff’s action was
returnable to court on October 7, 2014, and that the
summons was signed by an assistant clerk of the Supe-
rior Court, permitting issuance of process. The memo-
randum continued: ‘‘On the summons form, in the space
provided for statutory recognizance required by Section
52-185 et seq. of the Connecticut General Statutes, no
one was recognized nor was there provided the neces-
sary security for costs as required by [§] 52-185 . . . .
On August 28, 2014, in accordance with [Practice Book
§] 8-7, the defendants requested that the plaintiff pro-
vide a recognizance for costs signed by some responsi-
ble person as provided by [§] 52-185 . . . . By reason
of the failure of the [plaintiff] to respond to the request
that he furnish security for costs as required by statute
and rule [of practice], the defendants have filed a
motion to dismiss this action in accordance with the
provisions of [Practice Book §] 8-5 (a).’’
The defendants acknowledged that Judge Robinson
had approved the plaintiff’s application to waive certain
fees, but noted that the plaintiff had not requested a
waiver of recognizance. The defendants argued that the
court has no authority to waive the provisions of § 52-
185, citing Steinkamp v. Jacque, 36 Conn. Supp. 37, 41,
410 A.2d 489 (1979). Moreover, the defendants argued
that the plaintiff’s cause of action will require substan-
tial discovery, at least a deposition of the plaintiff, and
a recognizance of $250 might not be sufficient to cover
taxable costs. The defendants, therefore, requested a
more substantial recognizance for costs.
On November 20, 2014, the plaintiff filed what the
Superior Court clerk’s office coded as a letter, which
stated: ‘‘The summons I filed in [this case] was deficient
in that it did not contain a recognizance bond. I wish
that I had this pointed out and explained to me when
I filed my summons and my complaint at the Court
Clerk’s Office on August 14, 2014. I am representing
myself pro se and have limited Court experience in
my background.
‘‘I now believe I understand enough about the process
and procedure to remedy the situation. As I understand
it, from the Court Clerk, this requirement can be com-
plied with by paying a $250 fee to the Court clerk and
by signing a refiled summons document in the appro-
priate way.
‘‘To comply with this, I have sold about one-half of
my last remaining financial asset, i.e., 157 shares of
Peoples’ United Bank. The proceeds, I have been told,
will be sent to me by mail to my P.O. Box no later than
December 3, 2014.
‘‘I hope that will be sufficient to remedy the problem.
/s/ Robert M. Bloch’’
On November 24, 2014, Judge Wilson issued a memo-
randum of decision on the defendants’ motion to dis-
miss. After setting forth the law with regard to a motion
to dismiss and § 52-185, the court stated that the plaintiff
‘‘has not obtained a recognizance as required by Prac-
tice Book §§ 8-3 and 8-4. Although the Practice Book
[provides] that ‘the validity of the writ and service shall
not be affected unless the neglect is made a ground
of a motion to dismiss’; Practice Book § 8-5 (a); the
defendants here have exercised their right to file such
a motion, and have done so in a timely and proper
manner claiming that the absence of the recognizance
rendered service of process invalid. Where, as here, a
proper motion to dismiss has been filed, Practice Book
§ 8-5 (b) provides that the court shall direct the plaintiff
to file an appropriate recognizance within two weeks,
and that if such recognizance is not thereafter timely
filed, the plaintiff shall suffer dismissal. . . .
‘‘Accordingly, the court hereby orders the plaintiff to
file the statutorily required recognizance on or before
December 8, 2014. The court further orders that if a
proper recognizance is not filed by said date, then with-
out further motion of the defendants or order of this
court, this matter shall thereupon be dismissed due
to insufficiency of process and the resulting lack of
personal jurisdiction.’’ In violation of the court order,
the plaintiff failed to file the recognizance bond by
December 8, 2014, and a judgment of dismissal was
entered against the plaintiff on December 9, 2014.
Although the plaintiff has identified numerous pur-
ported reasons, including a snowstorm, attempting to
excuse his failure to file the ordered recognizance; see
footnote 2 of this opinion; the reasons he offers are not
that he did not have the financial resources to file the
recognizance, but that he was unable to comply timely
with the court’s order. The plaintiff argues that he
should be excused from his failure to file the recogni-
zance by December 8, 2014, because he sold his shares
of stock on November 18, 2014, and received a check
for the proceeds of the sale on December 1, 2014.9 He
argues that the proceeds of the sale were necessary to
post a recognizance not only in the present case, but
also in another action he had pending. If, as the plaintiff
contends, the proceeds from the sale of his stock took
longer to clear his account than he anticipated, the
record does not disclose that he filed a motion for an
extension of time in which to file the recognizance or
a motion to set aside the judgment of dismissal when
he had the money in hand. The second set of facts the
plaintiff relies upon to excuse his failure to file the
recognizance by December 8, 2014, in compliance with
the court order, is that when he returned three com-
plaints to the Superior Court on August 14 and 15, 2014,
he ‘‘was not at all asked about or told by the court clerk
that civil bonds could be an issue or would at all be
required.’’ He also asserts that once he became aware of
the need to file a recognizance, no one in the courthouse
could explain to him what he was required to do or
how to do it.
The plaintiff’s brief, however, provides no legal analy-
sis of our rules of practice and § 52-185. As an appellate
court, we are not in a position to find facts. We are
required to resolve claims on appeal pursuant to the
law and facts found by the trial court. Our resolution
of the plaintiff’s appeal is controlled by our review
of the procedural history of the present case and the
relevant law.
We begin with the standard of review and the relevant
legal principles governing the plaintiff’s claim that the
court improperly dismissed his cause of action. ‘‘A
motion to dismiss . . . properly attacks the jurisdic-
tion of the court . . . . A motion to dismiss tests, inter
alia, whether on the face of the record, the court is
without jurisdiction. . . . [O]ur review of the trial
court’s ultimate legal conclusion and resulting [decision
to grant] . . . the motion to dismiss will be de novo.’’
(Internal quotation marks omitted.) Harnage v.
Lightner, 163 Conn. App. 337, 342–43, A.3d
(2016). ‘‘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) . . . .’’
(Citations omitted.) Costello v. Goldstein & Peck, P.C.,
321 Conn. 244, 252–53, A.3d (2016).
General Statutes (Rev. to 2013) §§ 52-185 and 52-186
are part of the controlling statutory scheme. In addition,
Practice Book §§ 8-3 (a) and 8-4 (a) must be considered
to resolve the claim in this appeal. See Costello v.
Goldstein & Peck, P.C., supra, 321 Conn. 246–47; Har-
nage v. Lightner, supra, 163 Conn. App. 347 n.5. Chapter
8 of our rules of practice also is pertinent to the question
before us.
General Statutes (Rev. to 2013) § 52-185 (a) provides
in relevant part: ‘‘If the plaintiff in any civil action . . .
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 ren-
dered against him. . . .’’
General Statutes (Rev. to 2013) § 52-186 (a) provides
in relevant part: ‘‘The court, upon motion of the defen-
dant or on its own motion, may order a sufficient bond
to be given by the plaintiff before trial . . . . In
determining the sufficiency of the bond to be given, the
court shall consider only the taxable costs which the
plaintiff may be responsible for under section 52-257
. . . .’’
‘‘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 footnote 7 of
this opinion]; are respectively provided in § 52-185 (d)
and Practice Book § 8-5. The statute provides in relevant
part: ‘If there has been a failure to comply with the
provisions of this section . . . the validity of the [sum-
mons] and service shall not be affected unless the fail-
ure is made a ground of a plea in abatement [currently
a motion to dismiss]. 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. . . .’ ’’ (Emphasis
added.) Costello v. Goldstein & Peck, P.C., supra, 321
Conn. 253.
‘‘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 on 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
judicial 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. . . .’ ’’ (Emphasis
added.) Id., 253–54.
‘‘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.) Id., 254; see also Boyles v. Preston, 68
Conn. App. 596, 603, 792 A.2d 878, cert. denied, 261
Conn. 901, 802 A.2d 583 (2002).
The language of §§ 52-185 and 52-186 is clear and
unambiguous as applied to the plaintiff; he was required
to post a recognizance bond when returning his process.
The defendants here alerted the plaintiff to his failure
to file a recognizance bond and requested that he do
so. The defendants subsequently filed a motion to dis-
miss the action grounded on the plaintiff’s failure to
post a recognizance bond. See Practice Book § 8-5 (a).
In response to the defendants’ motion to dismiss, the
plaintiff voluntarily offered to correct his error by filing
a recognizance bond. Following a hearing on the motion
to dismiss, the court ordered the plaintiff to file a recog-
nizance bond within two weeks, that is, by December
8, 2014.10 The court also ordered that if the plaintiff
failed to file a recognizance, a judgment of dismissal
shall enter without further motion of the defendants or
order of the court.
On appeal, the plaintiff does not claim that the court
failed to adhere to the statutory recognizance scheme
in effect at the time or to the rules of practice. His claim
on appeal is that his failure to file the recognizance
should be excused for extraneous reasons. Unlike the
trial court in Costello, which failed to give the plaintiff
an opportunity to file a bond; Costello v. Goldstein &
Peck, P.C., supra, 321 Conn. 251; the present record
discloses that the court conscientiously complied with
the dictates of the statutes and the rules of practice.
The court ordered the plaintiff, who volunteered to
provide a recognizance bond, to file the recognizance
within two weeks. The reasons proffered by the plain-
tiff; see footnote 2 of this opinion; are insufficient to
reverse the judgment dismissing his cause of action.11
The judgment is affirmed.
In this opinion the other judges concurred.
1
Since the time the plaintiff commenced the present action and the trial
court ruled on the defendants’ motion to dismiss, General Statutes (Rev. to
2013) § 52-185 has been amended, effective October 1, 2015. See Public
Acts 2015, No. 15-85, § 14. Because the current revision of the statute is
substantively different from its previous revision and was not in effect at
the time that the trial court decided the motion to dismiss, we are required
to undertake our analysis pursuant to the revision of the statute in effect
at the time. See Costello v. Goldstein & Peck, P.C., 321 Conn. 244, 252 n.8,
A.3d (2016); Harnage v. Lightner, 163 Conn. App. 337, 339 n.2,
A.3d (2016). All references in this opinion are to the 2013 revision of
§ 52-185.
2
In his brief, the plaintiff set forth the following claims:
‘‘1. The issue and the problem for me is the fact that a final date for
payment of the bond had been set and I did not and could not meet it for
the two reasons stated [at pages 4-8 and 9-14 of my brief]. The question is
can the decision be reversed based on these two reasons?
‘‘2. Also, it seems to be the case that there might not have been a full
understanding of the situation on [the part of the trial court], which, had
that not been the case, might not have resulted in the placement of the
date, December 8, 2014, as the deadline. . . .
‘‘3. There is also an issue, related to the discussion of the second reason
. . . that the Practice Book in [§] 8-4 et al. and the . . . General Statutes
[§§] 52-185 and 186 . . . are not at all or in any way clear as to exactly
who or what constitutes a ‘financially responsible inhabitant of the state’
or a ‘third party.’ Also, there were no people that I could find, noted further
in the brief, who were willing or able to inform me as to how the requirement
could be met. People who work in the court, e.g., in the court service center,
law library, or court clerk’s office by rule or by policy or both are not
allowed to ‘act as an attorney.’
‘‘4. When the official documents—i.e., the Practice Book and the Connecti-
cut General Statutes—are not at all clear, as noted above . . . it becomes
a huge problem to someone representing themselves pro se. This is because
they cannot afford an attorney for the reason that they have run out of money
due to the circumstances that bring them to court. Before the circumstances
occurred, I indeed could have afforded a lawyer and would have very much
wanted to have an attorney out of a very real fear of such circumstances
as are happening here.’’
3
We note that Practice Book §§ 8-3 through 8-7 have been amended to
reflect the legislative changes in § 52-185. Because those amendments to
the Practice Book do not take effect until January 1, 2017, we refer to the
current revision of the Practice Book.
4
The defendants also claim that this court lacks jurisdiction over the
plaintiff’s appeal ‘‘by reason of the entry of judgment of dismissal’’ and the
plaintiff’s failure to file a timely appeal in this court. This court has jurisdic-
tion to determine whether it or the trial court has jurisdiction. See Gemmell
v. Lee, 42 Conn. App. 682, 684 n.3, 680 A.2d 346 (1996). A claim that an
appeal is untimely is governed by Practice Book § 66-8 (motion to dismiss
must be filed within ten days after filing of appeal).
5
At the bottom of the form the plaintiff listed monthly income of $674,
expenses of $828, and assets of $40,103, including real estate, stock, and
$700 in his checking account. In response to the question asking how the
applicant supports himself if he has zero total monthly income or expenses,
the plaintiff stated: ‘‘My brother and sister-in-law help me out a bit.’’
6
Presumably, the plaintiff’s complaint sounds in legal malpractice, but
that is not at all clear, as it is a wide-ranging, handwritten document. In
their appellate brief, the defendants correctly point out that the complaint
is in narrative form and otherwise fails to conform to Practice Book § 10-
1 in that it is not a plain and concise statement of the material facts and
does not consist of statements divided into consecutively numbered para-
graphs, each stating a separate allegation.
7
Practice Book § 8-3 (a) provides: ‘‘Except as provided below, 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 the plaintiff,
he or she shall, before such process is signed, enter into a recognizance to
the adverse party with some substantial inhabitant of this state as surety,
or some substantial inhabitant of this state shall enter into a recognizance
to the adverse party, that the plaintiff shall prosecute the action to effect,
and answer all damages in case the plaintiff does not make his plea good; and
no such recognizance shall be discharged by any amendment or alteration of
the process between the time of signing and of serving it. (See General
Statutes [Rev. to 2013] § 52-185 and annotations.)’’
Practice Book § 8-4 (a) provides: ‘‘Except as provided below, in all actions
wherein costs may be taxed against the plaintiff, no mesne process shall
be issued until the recognizance of a third party for costs has been taken,
unless the authority signing the writ shall certify thereon that he or she has
personal knowledge as to the financial responsibility of the plaintiff and
deems it sufficient.’’
8
Practice Book § 8-7 provides: ‘‘No order for a bond for prosecution will
be made by the judicial authority unless it be shown that the adverse party
has been requested in writing to furnish the same and has refused such
request or has failed to file a satisfactory bond within a reasonable time
after the request was made.’’
9
The plaintiff directs us to a copy of his Fidelity Investments account he
included in the appendix of his brief. That document indicates that on
December 2, 2014, a check in the amount of $975 was deposited in the
account. Two checks were drawn on the account on December 4, 2014, one in
the amount of $95 and another in the amount of $260. There is a handwritten
notation next to the $260 entry stating: ‘‘This was for the bond paid in a
timely manner in a related case, Robert M. Bloch vs The Law Office of
Neil Crane.’’
10
The court ordered the plaintiff to post a recognizance bond within two
weeks approximately three months after the defendants requested by letter
that he do so.
11
The defendants also claim that, because the plaintiff alleged that they
withdrew as his counsel in June, 2010, and he did not serve process until
August, 2014, the plaintiff’s action is barred by the statute of limitations,
General Statutes § 52-577. A claim that a cause of action is barred by the
statute of limitations is properly alleged as a special defense and may be
resolved by a motion for summary judgment, but generally not by a motion
to dismiss. See Gianetti v. Connecticut Newspapers Publishing Co., 136
Conn. App. 67, 75, 44 A.3d 191, cert. denied, 307 Conn. 923, 55 A.3d 567 (2012).