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Costello v. Goldstein and Peck, P.C

Supreme Court of Connecticut

May 3, 2016


Argued January 27 2016

Dorothy Smulley Costello, self-represented, with whom, on the brief, was James T. Costello, self-represented, the appellants (plaintiffs).

Sean E. Boyd, with whom was Nadine M. Pare, for the appellees (defendants).

Rogers, C. J., and Palmer, Zarella, McDonald, Espinosa, Robinson and Vertefeuille, Js.



The plaintiffs, James T. Costello and Dorothy Costello, proceeding as self-represented parties, 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 recognizance[1] 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 summarily 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 present 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 defective due to the lack of either a recognizance by a third party or a certification of the plaintiffs’ financial responsibility. 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 signature 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 opposition 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 recognizance. 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 judgment 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 Statutes §§ 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 amendable 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 requirement. Because of the plaintiffs’ insistence on this threshold issue, the court was unable to reach the remedy 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 signature of a third party, the court would have then proceeded 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 ...

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