JAMES T. COSTELLO et al. v. GOLDSTEIN AND PECK, P.C., et al., SC 19475
Judicial District of Fairfield
Personal Jurisdiction; Whether Appellate Court Properly Affirmed Judgment Dismissing Action for Failure to Comply with the Personal Jurisdiction Requirements of General Statutes § 52-185 and Practice Book § 8-4. Plaintiffs James and Dorothy Costello brought this action against the defendant law firm and attorneys, alleging that they committed legal malpractice in their representation of the plaintiffs. The defendants filed a motion to dismiss the action, arguing that the trial court lacked personal jurisdiction over them because the writ of summons was not in compliance with General Statutes § 52-185 and Practice Book § 8-4. Section 52-185 provides that “[i]f 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.” Practice Book § 8-4 provides that “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.” The defendants maintained that the plaintiffs violated §§ 52-185 and 8-4 by failing to provide a recognizance of a third party or a certification as to the financial responsibility of the plaintiffs. The trial court agreed and granted the motion to dismiss, reasoning that the plaintiffs had failed to provide a recognizance of a third party on the writ and summons at the time that process was returned to court. It further determined that Dorothy Costello, who signed the recognizance as Dorothy Smulley, could not sign it on behalf of James Costello because she was not a third party. The court also emphasized that, while the plaintiffs could have cured the defective recognizance, they made no attempt to do so. On appeal, the Appellate Court (155 Conn. App. 905) summarily affirmed the judgment dismissing the action. In this appeal, the plaintiffs argue, among other things, that the defendants had waived their right to raise the personal jurisdiction issue when, prior to filing the motion to dismiss, they voluntarily submitted to the trial court’s jurisdiction. They also maintain that, because they are financially responsible inhabitants of Connecticut, § 52-185 is inapplicable here. Finally, the plaintiffs argue that Dorothy Costello, as James Costello’s spouse, had the authority and financial wherewithal to sign the recognizance on behalf of James Costello.