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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 General 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 commenced 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 Superior 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 accompanying 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 Superior Court, permitting issuance of process. The memorandum 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 necessary 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 provide a recognizance for costs signed by some responsible 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 substantial 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 complied with by paying a $250 fee to the Court clerk and

by signing a refiled summons document in the appropriate 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 memorandum of decision on the defendants’ motion to dismiss. 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 Practice 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 without 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 purported 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 recognizance 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 complaints 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 analysis 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 ofreview 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 jurisdiction 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; Harnage v. Lightner, supra, 163 Conn. App. 347 n.5. Chapter

8 of ourrules 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 rendered against him. . . .’’

General Statutes (Rev. to 2013) § 52-186 (a) provides

in relevant part: ‘‘The court, upon motion of the defendant 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 recognizance 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 PracticeBook § 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 [summons] 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 provisions 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 practice does not favor the termination of proceedings without 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 dismiss 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 recognizance 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 plaintiff; 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 Connecticut 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 forthe 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 jurisdiction 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 paragraphs, 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).