author: BISHOP, J.

text:
    STATE OF CONNECTICUT v. ROBERT KING
    (AC 34932)
    DiPentima, C. J., and Keller and Bishop, Js.

      Argued December 3, 2013
    officially released April 8, 2014

      Mark Rademacher, assistant public defender, with whom, on the brief, was Heather M. Wood, assistant public defender, for the appellant (defendant).

      Emily D. Trudeau, deputy assistant state’s attorney, with whom, on the brief, were Maureen Platt, state’s attorney, and Jayne F. Kennedy, assistant state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

Following a jury trial, the defendant, Robert King, was convicted of two counts of assault in the first degree in violation of General Statutes § 53a-59 (a) (l) and (3), and thereafter, he was sentenced to a total effective term of nine years of imprisonment to be followed by five years of special parole. On appeal, the defendant contends that his due process rights were violated by having been convicted after a legally inconsistent verdict, on the basis of the manner in which the charges against him were prosecuted, because the state did not claim, through its presentation of evidence and argument at trial, that he had both intentionally and recklessly assaulted the victim. Accordingly, the defendant argues, the state’s present theory of the case, formulated and argued for the first time after the verdict, does not form an adequate basis to sustain his conviction. We agree and, accordingly, reverse the judgment of the trial court.

The matter was tried over the course of three days in April, 2012, during which the jury reasonably could have found the following facts. On December 18, 2010, Angela Papp and Kyle Neri went to a residence where the victim, Kristen Severino, was staying temporarily. The three were sitting on a bed when the defendant entered the apartment, angry over Neri’s purported failure to repay him $10 that the defendant had loaned him earlier that day. As the argument continued, the defendant left the bedroom and returned with a steak knife that he had retrieved from the kitchen. The defendant continued to yell at both Papp and Neri while the victim attempted to defuse the situation by telling the defendant that no one should die over $10. The defendant called the victim a “bitch,” and when she protested, he stabbed her four times in quick succession. After the defendant had fled the scene, Papp and Neri also left the residence to call for assistance because they did not have telephone access in the home. Upon seeing a police vehicle on the street, Neri hid because he had an outstanding warrant for violation of probation and, thus, wanted to avoid the police. Instead, Papp approached the officer, got into the police vehicle, and both Papp and the officer went to the home to assist the victim and call for emergency medical help. The victim then was transported to Saint Mary’s Hospital in Waterbury, where Abdulmasih Zarif, an emergency room physician, performed surgery. At trial, Zarif testified that the victim had sustained stab wounds to her chest and abdomen, and that surgery was needed to mend lacerations to the victim’s liver and lymphatic channel. Zarif stated that had the victim’s wounds been left untreated, she would have bled out and died. At no time during his testimony, however, did Zarif distinguish among the victim’s four stab wounds or specifically identify more than one stab wound as life-threatening.

During its presentation of evidence, the state elicited testimony from both Papp and Neri concerning the night of the incident. Although both Papp and Neri stated that the defendant was irate on the night in question and indicated that the defendant stabbed the victim several times, neither witness distinguished among the victim’s four stab wounds. That is, neither witness testified to any break in time between the defendant’s swings of the knife; neither witness testified that any of the thrusts was any different in manner or degree from the others. Papp testified that the defendant “started swinging the knife on [the victim] . . . just over and over and over, just going into her.” Similarly, Neri testified that when the defendant became angry with the victim, he placed the kitchen knife on the victim’s face and began yelling at her. When the victim pushed the defendant’s hand away from her face, Neri testified that “at that point is when he stabs her three times.” When asked on cross-examination whether the victim had jumped in the middle of his altercation with the defendant, Neri stated: “No sir. . . . That’s not true at all.” Similarly, the victim herself did not attempt to draw a distinction among the multiple stab wounds. Rather, she stated that the defendant “threatened me with the knife to my face and then told me to sit down, and that’s when he stabbed me.”

The jury heard as well that the defendant was apprehended by the police on an unrelated matter after the assault. While at the police station, a detective read the defendant his Miranda rights, obtained a signed waiver, and questioned the defendant about the stabbing, which Papp had reported earlier that day. The defendant claimed that Neri had threatened him with a gun and that he had reacted in self-defense. The defendant also claimed that the stabbing had been an accident. The detective then wrote a statement that was based on the defendant’s narrative and gave it to the defendant to read, initial, and sign. The defendant read the entire statement and initialed the first page, but refused to sign the statement as a whole because he believed that the manner in which the detective wrote the statement “sounded bad.” Although the defendant did not testify at trial, his statement was read to the jury.

After the close of evidence, the parties began their respective closing arguments. At no time did the prosecutor argue to the jury that the defendant could be found guilty of both intentional and reckless assault. To the contrary, a fair reading of the prosecutor’s argument suggests that the prosecutor urged the jury to find that the defendant’s conduct was intentional rather than reckless. Specifically, the prosecutor stated: “You may be wondering why there are two charges. You have a variety of evidence to draw from, and I don’t know what you’ll find credible. If you find Mr. King’s statement credible, he’s saying he’s waving the knife around, he’s angry with Kyle, and [the victim] jumps in the middle, if you believe Mr. King’s statement, you would look more to the assault one, reckless indifference.” The balance of the prosecutor’s argument consisted, however, of an argument that the jury could disbelieve the defendant’s statement and find, instead, that he acted intentionally. After closing arguments, the court charged the jury, during which the court accurately informed the jury of the two charges against the defendant and the different elements of each count. The court, however, did not tell the jury that it could find the defendant guilty of both counts, nor did the court instruct that the jury could find the defendant guilty of only one count.

On April 23, 2012, the defendant filed a motion for a new trial pursuant to Practice Book § 42-63 and, on April 24, 2012, the defendant also filed a motion for a judgment of acquittal pursuant to Practice Book § 42-61. Notably, the defendant, by means of his motion for a new trial, argued that conviction under both § 53a-59 (a) (1) and (3) created a legal impossibility because the conviction required that he possess two different mental states for the same crime and that therefore, he was entitled to a new trial. On June 22, 2012, the defendant withdrew his motion for a judgment of acquittal and, after argument, the court denied the defendant’s motion for a new trial. In denying the defendant’s motion, the court posited that the jury reasonably could have found: “[I]n light of [the defendant’s] self-defense claim . . . the first stab wound resulted in swinging the knife wildly around and striking [the victim]. The second one was performed with an intent to cause serious physical injury.” This appeal followed.

On appeal, the defendant argues that the court improperly permitted the jury to return a verdict of guilty on both counts because the charges as they were presented by the state at trial required the jury to find either that he acted recklessly or intentionally, but not with both frames of mind, because those mental states are mutually exclusive when applied to the same act. Specifically, the defendant contends that the verdict of guilty of two counts of assault in the first degree, requiring different mental states for the same offense, violates his due process rights because he was not informed, at trial, of a claim by the state that he acted both intentionally and recklessly. The defendant asserts that the state’s posttrial argument that the jury reasonably could have found that the defendant’s mental state changed during his attack on the victim is inconsistent with the way in which the state presented its case to the jury and that, accordingly, the state cannot make such an argument on appeal. In response, the state contends that the jury reasonably could have concluded from the evidence adduced at trial that the defendant first injured the victim recklessly as he swung the knife at Neri and then injured the victim intentionally after she retaliated. Accordingly, the state argues, the jury could have determined that the defendant’s mental state changed during the course of the attack and that, therefore, the verdict of guilty on both counts is not legally inconsistent. We agree with the defendant.

Our standard of review is well established. Because the defendant claims a violation of his due process rights, his appeal raises a question of law for which our review is plenary. See State v. Mooney, 61 Conn. App. 713, 719, 767 A.2d 770, cert. denied, 256 Conn. 905, 772 A.2d 598 (2001). Here, we review the defendant’s claim of legal inconsistency not in a vacuum but in light of the manner in which the case was presented at trial by the state. That is, our assessment on review is not whether a jury reasonably could have found the defendant guilty of both intentional and reckless assault on evidence that he stabbed the victim four times, but rather, whether the jury reasonably could have reached that conclusion on the basis of the evidence as it was presented and argued by the state. See State v. Fourtin, 307 Conn. 186, 208-12, 52 A.3d 674 (2012).

“Initially, we note that the statutory definitions of intent and recklessness are mutually exclusive and inconsistent. . . . Reckless conduct is not intentional conduct because one who acts recklessly does not have a conscious objective to cause a particular result. . . . Therefore, the transgression that caused the victim’s injuries was either intentional or reckless; it could not, at one and the same time, be both.” (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Bjorklund, 79 Conn. App. 535, 565-66, 830 A.2d 1141 (2003), cert. denied, 268 Conn. 920, 846 A.2d 882 (2004). “The issue of legal inconsistency typically arises when a defendant is convicted of two offenses that contain contradictory elements. ... To determine whether a jury verdict is legally inconsistent, we look carefully to determine whether the existence of the essential elements for one offense negates the existence of the essential elements for another offense of which the defendant also stands convicted. If that is the case, the verdicts are legally inconsistent and cannot withstand challenge. . . . Put more simply, we determine if there is a rational theory by which the jury could have found the defendant guilty of both crimes. . . . It is not inconsistent ... to find that a criminal defendant possesses two different mental states, as long as [the] different mental states relate to different results.” (Citation omitted; internal quotation marks omitted.) State v. McFarlane, 128 Conn. App. 730, 735, 17 A.3d 1131, cert. denied, 301 Conn. 931, 23 A.3d 725 (2011).

Because the two counts of assault in the first degree charged in the present matter require both intentional and reckless mental states, the defendant relies on State v. King, 216 Conn. 585, 595, 583 A.2d 896 (1990), for the proposition that he may be convicted of one count or the other, but not of both, because the state’s theory at trial and its presentation of evidence was that his act was continuous and it was, in its entirety, wilful. In King, the defendant was found guilty by a jury of assault in the first degree in violation of § 53a-59 (a) (3), arson in the first degree in violation of General Statutes § 53a-lll (a) (2), and attempt to commit murder in violation of General Statutes §§ 53a-49 and 53a-54a (a) for setting fire to an inmate’s cell in the correctional center in which the defendant was imprisoned. Id., 586. Because the assault charge required a finding of a reckless mental state and the attempted murder charge required a finding of an intent to kill, the defendant claimed that the verdict as to those charges was inconsistent. Id., 592-93. In agreeing with the defendant and concluding that a new trial was necessary on the assault and attempted murder charges, our Supreme Court articulated: “Reckless conduct is not intentional conduct because one who acts recklessly does not have a conscious objective to cause a particular result. . . . Therefore, the transgression that caused the victim’s injuries was either intentional or reckless; it could not, at one and the same time, be both. . . . Where a determination is made that one mental state exists, to be legally consistent the other must be found not to exist. ... By no rational theory could the jury have found the defendant guilty of both crimes. . . . Logically then, the jury verdicts convicting the defendant of two offenses each of which requires a mutually exclusive and inconsistent state of mind as an essential element for conviction cannot stand.” (Citations omitted; internal quotation marks omitted.) Id., 594. Referring to the murder and assault counts, the court in King held that “the trial court must instruct the jury that, depending on its findings of fact, it may convict the defendant of one count or the other, but not of both.” (Emphasis in original.) Id., 595.

To be sure, there are fact patterns which warrant charging a defendant with multiple crimes with conflicting mental states. In State v. Fernandez, 27 Conn. App. 73, 604 A.2d 1308, cert. denied, 222 Conn. 904, 606 A.2d 1330 (1992), the defendant threw the victim down a flight of stairs and, after descending the stairs, also stabbed the victim in the stomach. Id., 76. After a jury trial, the defendant was convicted of attempt to commit murder in violation of §§ 53a-49 and 53a-54a (a), two counts of assault in the first degree in violation of § 53a-59 (a) (1) and burglary in the first degree in violation of General Statutes § 53a-101 (a) (2). Id., 74-75. On appeal to this court, the defendant argued, inter alia, that the trial court improperly permitted the jury to return a guilty verdict on both the attempted murder and assault charges because those crimes require proof of mutually exclusive mental states. Id., 92. Specifically, the defendant asserted that the intent to cause death is legally and logically inconsistent with the intent to cause serious physical injury when applied to the same act against the same victim. Id., 93. In finding that the verdict was not legally and logically inconsistent, we opined: “Unlike the guilty verdicts in State v. King, supra, [216 Conn. 686], the verdicts of guilty of assault in the first degree and attempted murder in this case are not inconsistent because the jury was not required to find that the defendant possessed the two different mental states simultaneously with respect to his acts against [the victim]. Specifically, the jury could reasonably have concluded that although the defendant commenced his attack on [the victim] with an intent to cause her serious physical injury, this intent was transformed, in midattack, into an intent to cause [the victim’s] death. Because the jury was not required to find that the defendant possessed the relevant mental states simultaneously, its verdict was not logically inconsistent.” Id., 94. In sum, if a criminal act may be bifurcated such that more than one mental state reasonably could be present throughout the course of the act at different times, a verdict of guilty on both counts is not legally and logically inconsistent. If, however, the act requires finding that the two distinct mental states occurred simultaneously against the same victim, finding a defendant guilty of both crimes constitutes a legally and logically inconsistent verdict.

In determining whether a verdict is legally and logically inconsistent, however, a reviewing court must also consider the way in which the state presented the case to the jury. “The ‘theory of the case’ doctrine is rooted in principles of due process of law. ... In Dunn [v. United States, 442 U.S. 100, 106, 99 S. Ct. 2190, 60 L. Ed. 2d 743 (1979)], the United States Supreme Court explained: ‘To uphold a conviction on a charge that was neither alleged in an indictment nor presented to a jury at trial offends the most basic notions of due process. Few constitutional principles are more firmly established than a defendant’s right to be heard on the specific charges of which he is accused.’ . . . The court further stated that ‘appellate courts are not free to revise the basis on which a defendant is convicted simply because the same result would likely obtain on retrial.’ . . . Subsequently, in Chiarella v. United States, 445 U.S. 222, 237 n.21, 100 S. Ct. 1108, 63 L. Ed. 2d 348 (1980), the United States Supreme Court observed that an isolated reference at trial to the theory of the case advanced on appeal is constitutionally insufficient to sustain a conviction on appeal.

“The Court of Appeals for the First Circuit applied the Dunn principles in Cola v. Reardon, 787 F.2d 681 (1st Cir.), cert. denied, 479 U.S. 930, 107 S. Ct. 398, 93 L. Ed. 2d 351 (1986), a federal habeas action .... In Cola, there was evidence in the record that would have been sufficient to sustain the petitioner’s conviction, but the Court of Appeals held that the state appellate court should not have considered that evidence in support of the conviction because it was not part of the state’s theory of the case at trial. ... In reaching that result, the Court of Appeals interpreted Dunn and its progeny as follows: ‘[I]n order for any appellate theory to withstand scrutiny under Dunn, it must be shown to be not merely before the jury due to an incidental reference, but as part of a coherent theory of guilt that, upon [review of] the principal stages of trial, can be characterized as having been presented in a focused or otherwise cognizable sense.’ . . . We conclude that this statement is an accurate synthesis of Dunn and Chiarella. We therefore adopt it as the standard by which to gauge whether evidence introduced at trial, but not relied on by the state in its legal argument, is properly cognizable by an. appellate court when evaluating the sufficiency of the evidence.” (Citations omitted.) State v. Robert H., 273 Conn. 56, 82-83, 866 A.2d 1255 (2005). Put succinctly, an appellate court cannot affirm a conviction on the basis of an argument newly fashioned after conviction and not presented at trial. Such is the situation we presently confront.

Therefore, in making our assessment of whether the jury’s verdict in the matter violates the defendant’s due process right because, given the manner in which he was prosecuted and the evidence in support of his culpability, he was convicted after an inconsistent verdict, we look first to the evidence and argument presented to the jury. While the charging document in the present matter did not articulate that the two counts of assault in the first degree were made in the disjunctive, our review of the record and transcripts confirms that the state presented the case in that manner. As noted, the state did not claim or suggest that the jury could find the defendant guilty of both intentional and reckless conduct at any point throughout the course of trial. Importantly, during the state’s closing argument, the prosecutor presented the two charges to the jury as an alternative to one another. While the court instructed the jury that the defendant was charged with two crimes and correctly described the different elements of each count, the court did not tell the jury that it could find the defendant guilty of both counts, nor did the court instruct that the jury could find the defendant guilty of only one count. A fair reading of the record regarding the court’s jury charge leads us to conclude that because the court’s instruction on reckless and intentional assault did not direct the jury that it could find guilt on one or the other or both, reference to the court’s charge is not helpful to either the state’s or the defendant’s claim on appeal in this regard.

Most importantly for purposes of this appeal, however, is the fact that the evidence was not presented at trial in a manner suggestive of more than one assault. In order to affirm the defendant’s conviction, we would have to find that the prosecutor presented the stabbing as two offenses; one committed intentionally and another committed recklessly. Nothing in the record supports such a conclusion. Interestingly, although there was evidence that the victim was stabbed four separate times, the state presented no evidence that each stabbing constituted a separate offense. If so, it would have been logical for the state to charge the defendant in four counts, one for each stab wound, which the state did not do. As noted, in addition to the eyewitness testimony of Neri and Papp, neither the victim nor any other witness distinguished among the multiple stab wounds at trial either by manner or timing. Instead, all witnesses testified that the assault occurred quickly, within a short span of time and, essentially, as one continuous act. There was no testimony elicited at trial that there was any temporal break between knife thrusts or distinguishing one thrust from another in any manner. The physician who testified at trial, Zarif, did not differentiate any of the stab wounds but, rather, concluded, on questioning from the state, that the victim’s wounds generally were life-threatening and that one or more of the wounds had lacerated the victim’s liver and lymphatic channel. In short, a fair reading of the record reflects that the state presented evidence of the defendant’s conduct as one continuous act, unbroken in time and character.

To be sure, if the state had pursued its appellate theory of the case at trial, with supporting evidence, appropriate argument, and attendant notice to the defendant, the jury, perhaps, could have properly found the defendant guilty of both intentional and reckless assault. But we decide appeals not in isolation or only based on theory unmoored to the factual record, but, rather, in the context of the trial proceedings as they actually occurred. We consistently have held that “in order for any appellate theory to withstand scrutiny ... it must be shown to be not merely before the jury due to an incidental reference, but as part of a coherent theory of guilt that, upon [review of] the principal stages of trial, can be characterized as having been presented in a focused or otherwise cognizable sense. We adopted this rule as the standard by which to gauge whether evidence introduced at trial, but not relied on by the state in its legal argument, is properly cognizable by an appellate court when evaluating the sufficiency of the evidence. ... In addition, it is well established that [o]ur rules of procedure do not allow a [party] to pursue one course of action at trial and later, on appeal, argue that a path [the party] rejected should now be open to him. ... To rule otherwise would permit trial by ambuscade.” (Internal quotation marks omitted.) State v. Fourtin, supra, 307 Conn. 208. Holding now for the first time in this appeal that the defendant could be convicted of both counts because his mental state could have changed during the course of the attack when the state’s theory of the case was presented in the disjunctive would constitute a violation of the defendant’s due process rights.

In sum, because this judgment violates the defendant’s due process rights to fair notice of the charges against him and represents a conviction of two offenses when the state presented the case as one offense committed either recklessly or intentionally, the judgment cannot stand.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical iryury to another person, he causes such iiyury to such person or to a third person by means of a deadly weapon or a dangerous instrument ... or (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical injury to another person . . . .”

       Although there is inconsistent testimony in the record as to whether the victim sustained three or four stab wounds, the photographic evidence produced at trial showed that there were, in fact, four stab wounds.

       It is unclear from Zarif s testimony as to whether one stab wound caused both the laceration to the liver and the damage to the lymphatic channel, or whether two or more different stab wounds caused damage to each system individually. The state made no effort, during Zarif s testimony, to elicit facts from which the jury reasonably could make distinctions among the stabbings or attribute the victim’s ir\juries to any specific act of stabbing by the defendant.

       See Miranda v. Arizona, 384 US. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       Although the defendant did not testify, his statement was read into the record at trial by Detective George Tirado during the state’s case-in-chief.

       Similarly, if the state in the present matter had presented direct or circumstantial evidence and argued that the defendant actually changed his mental state in the course of stabbing the victim, the verdict would not suffer the same due process impediment now claimed on appeal.

       Because there is no claim of instructional error in this appeal, we do not opine on whether the instruction provided adequate guidance to the jury on this issue.

       It is important to note, however, that as we are not deciding this matter on sufficiency grounds, we do not reverse the judgment to direct the trial court to render judgment in the defendant’s favor. Cf. State v. Gainey, 116 Conn. App. 710, 977 A.2d 257 (2009). In addition, because reckless assault is not a lesser included offense of intentional assault, we cannot simply vacate the conviction of one of the charges. See State v. Polanco, 308 Conn. 242, 248-49, 61 A.3d 1084 (2013) (holding that when defendant convicted of greater and lesser included offenses, trial court must vacate conviction of lesser offense rather than merge conviction of both offenses and vacate conviction of lesser included offense).


source: Caselaw Access Project

author: GRUENDEL, J.

license: Public Domain

text:
    IN RE ZEN T.

    (AC 36083)
    Gruendel, Beach and Harper, Js.
    Argued March 6
    officially released March 28, 2014

      Heather S., self-represented, the appellant (respondent mother).

      Amor C. Rosario, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Benjamin Zivyon, assistant attorney general, for the appellee (petitioner).

      Lisabeth B. Mindera, counsel for the minor child.

       In accordance with the spirit and intent of General Statutes § 46b-I42 (b) and Practice Book § 79a-12, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

       March 28,2014, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Opinion

GRUENDEL, J.

The respondent mother, Heather S., appearing as a self-represented party, appeals from the judgment of the trial court terminating her parental rights as to her minor child, Zen T. On appeal, the respondent claims that she was denied effective assistance of counsel and was thereby prejudiced. We disagree and, accordingly, affirm the judgment of the trial court.

The record discloses the following relevant factual and procedural history. In March, 2012, the respondent and Cory T. brought the child, who was less than three months old, to the emergency room because his left leg was swollen. An X-ray, CAT scan, and MRI were conducted, which revealed that “[the child] had sustained at least eight fractures, two additional long bone irregularities ... as well as bilateral chronic subdural hematomas, for a total of eleven injuries. These injuries occurred on multiple occasions over a time period of at least three weeks.” In addition, “[a]ll of the injuries resulted from trauma which could not have occurred during the normal handling of an infant; nor could [the child], who at three months of age was unable to stand, crawl, or even roll over, have accidently injured himself.”

The petitioner, the Commissioner of Children and Families, thereafter filed a petition with the court, requesting that the parental rights of the respondent be terminated. “The statutory ground alleged in the petition against the respondent mother is that the child has been denied, by reason of an act or acts of parental commission or omission, including, but not limited to, sexual molestation or exploitation, severe physical abuse or a pattern of abuse, the care, guidance, or control necessary for the child’s physical, educational, moral, or emotional well-being, [pursuant to] General Statutes § 17a-112 (j) (3) (C). The matter was tried to the court .... The respondent mother was present and was represented at trial by counsel. . . . The petitioner called nine witnesses and introduced twenty exhibits. [The respondent] called nine witnesses, testified in her own behalf and introduced twenty-one exhibits.”

After the trial concluded, the court held that the petitioner proved, by clear and convincing evidence, that: (1) the Department of Children and Families (department) made reasonable efforts to reunify the family, as required by § 17a-112 (j) (1); (2) termination was in the best interest of the child, pursuant to § 17a-112 (j) (2); and (3) with respect to § 17a-112 (j) (3) (C), the child’s various fractures and hematomas were serious physical injuries that were nonaccidental or were otherwise inadequately explained. The court further found that all seven grounds for termination delineated in § 17a-112 (k) existed. It then ordered the termination of the respondent’s parental rights. This appeal followed.

The respondent claims that she was denied effective assistance of counsel and was prejudiced as a result of this ineffectiveness. She therefore concludes that the case should be remanded for a new trial. We disagree.

“Ordinarily, we would not review the respondent’s claim because it was not raised at trial, and, therefore, the record is inadequate to review the claim. . . . The evidence on the face of the record, however, demonstrates that the respondent was not prejudiced by the representation she received at the termination of parental rights trial. The respondent’s claim, therefore, fails.” In re Dylan C., 126 Conn. App. 71, 90-91, 10 A.3d 100 (2011).

“In Connecticut, a parent who faces the termination of his or her parental rights is entitled, by statute, to the assistance of counsel. . . . Because of the substantial interests involved, a parent in a termination of parental rights hearing has the right not only to counsel but to the effective assistance of counsel. ... In re Alexander 7., 223 Conn. 557, 569, 613 A.2d 780 (1992).

“In determining whether counsel has been ineffective in a termination proceeding, we have enunciated the following standard: The range of competence . . . requires not errorless counsel, and not counsel judged ineffective by hindsight, but counsel whose performance is reasonably competent, or within the range of competence displayed by lawyers with ordinary training and skill in [that particular area of the] law. . . . The respondent must prove that [counsel’s performance] fell below this standard of competency and also that the lack of competency contributed to the termination of parental rights. ... A showing of incompetency without a showing of resulting prejudice . . . does not amount to ineffective assistance of counsel.” (Emphasis omitted; footnote omitted; internal quotation marks omitted.) In re Dylan C., supra, 126 Conn. App. 91. “In making such a claim, it is the responsibility of the respondent to create an adequate record pointing to the alleged ineffectiveness and any prejudice the respondent claims resulted from that ineffectiveness.” In re Christopher C., 129 Conn. App. 55, 59, 20 A.3d 689 (2011). “In the absence of findings by the trial court in this regard, we directly review the trial court record.” In re Jah’za G., 141 Conn. App. 15, 36, 60 A.3d 392, cert. denied, 308 Conn. 926, 64 A.3d 329 (2013).

The respondent claims that her trial counsel was ineffective because (1) he was unprepared to adequately analyze and challenge the methods of evaluation and conclusions drawn by the forensic psychologist who evaluated the respondent and testified as an expert witness at trial; (2) he failed to request a continuance to secure reasonable time to prepare the case or a meaningful defense; (3) he missed the deadline for disclosure of evidence; (4) he required the respondent to write her own questions when she chose to testify; (6) he failed to correct the record of statements she previously made to the department; and (6) he wrote in his brief that the department made reasonable efforts to reunify the child with her.

In the present case, we need not decide whether the respondent’s counsel provided assistance that fell below that of lawyers with ordinary training in termination of parental rights cases because the respondent has not demonstrated that her trial counsel’s representation resulted in prejudice to her. In order to demonstrate prejudice, the respondent has the “burden of proving that any alleged inadequacy of counsel could have affected the outcome of the termination proceedings.” In re Mariah S., 61 Conn. App. 248, 269, 763 A.2d 71 (2000), cert. denied, 265 Conn. 934, 767 A.2d 104 (2001).

The respondent does not specify in her brief how any of the alleged deficiencies by her counsel resulted in prejudice to her. She makes only conclusory statements, for example, stating that her counsel’s deficiencies “changed the perception of the trial court judge and ultimately the outcome of the case.” Bald assertions such as these are not enough to prove prejudice. The respondent was required to demonstrate that the outcome of the case—-the judgment terminating her parental rights—would have been different had the alleged ineffectiveness of her counsel not occurred. She failed to do just that. To the contrary, the record reveals that any alleged ineffectiveness of her counsel did not result in prejudice because there was overwhelming evidence that supported the court’s judgment. First, the respondent’s parental rights were terminated on the strength of the petitioner’s case that the child suffered serious physical injuries and that those injuries were not adequately explained by the respondent, pursuant to § 17a-112 (j) (3) (C). Moreover, as set forth in § 17a-112 (j) (3) (C), “nonaccidental or inadequately explained serious physical injury to a child shall constitute prima facie evidence of acts of parental commission or omission sufficient for the termination of parental rights.”

Furthermore, the court “examined multiple relevant factors [in making its decision] including the child’s interests in physical safety, sustained growth, development, well-being, stability and continuity of his environment; his length of stay in foster care; the nature of his relationship with his biological parents; the degree and quality of contact maintained with his biological parents; and his genetic bond to the respondents. The court . . . also balanced this child’s crucial need for physical safety, emotional stability, validation, consistency and permanency against the potential benefit of maintaining a connection with his biological parents.” After considering each of these factors, the court determined that it was in the best interests of the child to terminate the respondent’s parental rights.

“Moreover, our Supreme Court has indicated . . . that the trial judge is a minister of justice rather than strictly an umpire in a forensic encounter .... Although as a trial judge must adhere to dictates of impartiality, he or she, nevertheless, has the duty to deter and correct misconduct of attorneys with respect to their obligations as officers of the court to support the authority of the court and enable the trial to proceed with dignity. . . . Thus, a judge presiding over a proceeding wherein trial counsel had been woefully inadequate would not, consistent with judicial duty sit idly by and permit the client to suffer the consequences. To be sure, the trial judge may be more inclined to vigilance in solemn proceedings, such as those terminating parental rights, wherein the indigent litigants have obtained court-appointed counsel. . . . In re Jonathan M., 255 Conn. 208, 234, 764 A.2d 739 (2001).” (Internal quotation marks omitted.) In re Dylan C., supra, 126 Conn. App. 92-93. Nowhere in its memorandum of decision or in the transcript of the trial did the court give any indication that the respondent was not receiving effective assistance of counsel. And, the respondent has not identified where in the record that she alerted the court to her dissatisfaction with counsel. See id.

After reviewing the respondent’s claim of ineffective assistance of counsel and resultant prejudice, we conclude that the respondent did not meet her burden of demonstrating that any alleged inadequacy of counsel prejudiced her in a way that affected the outcome of the termination proceeding. See In re Mariah S., supra, 61 Conn. App. 269. In light of the foregoing reasons, the respondent’s ineffective assistance of counsel claim fails.

The judgment is affirmed.

In this opinion the other judges concurred.

       The respondent father, Cory T., tendered a signed written consent to terminate his parental rights to the court. The court thereafter canvassed the father and found that his consent was knowing, voluntary, and with a full understanding of all the consequences. It then accepted his consent and terminated Cory T.’s parental rights to the child. Cory T. is not a party to this appeal. Accordingly, we refer in this opinion to Heather S. as the respondent.

       General Statutes § 17a-112 (k) provides in relevant part: “[I]n determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding: (1) The timeliness, nature and extent of services offered, provided and made available to the parent and the child by an agency to facilitate the reunion of the child with the parent; (2) whether the Department of Children and Families has made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended; (3) the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order; (4) the feelings and emotional ties of the child with respect to the child’s parents, any guardian of such child’s person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties; (5) the age of the child; (6) the efforts the parent has made to adjust such parent’s circumstances, conduct, or conditions to make it in the best interest of the child to return such child home in the foreseeable future . . . and (7) the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent.”

       The psychologist’s “report indicate[d] that although [the respondent] did not show signs of mental illness, [she] showed indications of substantial psychological problems, which would prevent her from safely caring for an infant.” The respondent claims that she “did not have any unresolved and significant psychological issues and if those issues did not actually preclude the possibility of her safe reunification with [the child], then [she] has been prejudiced by counsel’s failure to adequately prepare for or challenge the psychologist’s testimony.” (Internal quotation marks omitted.)

       Since her counsel did not request a continuance, the respondent claims that he did not adequately prepare for trial and that she was therefore deprived of a meaningful defense of psychological fitness, a defense she claims “could have been a solid defense if it was diligently pursued.”

      The respondent claims that she was prejudiced when her trial counsel missed the deadline to disclose evidence, stating that “several powerful pieces of evidence were never brought to light that would surely have changed the perception of the trial court judge and ultimately the outcome of the case.” She states that this evidence included a calendar of “many things in order to watch [the child] and his diagnosed colic and acid reflux,” which would have “disproven certain allegations by the paternal grandparents and . . . given more credibility ... to the [respondent’s] belief of mental abuse by the paternal grandmother . . . .”

       She claims prejudice in this instance because her trial counsel insisted that she write her own questions if she chose to testify. The respondent states that this action “left an impression on the court of not having the proper respect for his client” and forced her to be her own trial counsel at a crucial time in the trial “knowing that she had a criminal case of neglect pending where all things in these proceedings could be used against her in criminal court.”

       The respondent claims that when her counsel failed to correct her statements, she was unable to give her side of the story.

       The respondent asserts on appeal that she believed that her case was mismanaged because of “altered forms, misleading notes and accepting bias[ed] statements without lending the [respondent] the opportunity to share her side of the story.” The respondent, however, has failed to challenge any of the trial court’s findings regarding the reasonableness of the department’s efforts, and therefore this specific instance of her ineffective assistance of counsel claim is moot. See In re Alison M., 127 Conn. App. 197, 205-206, 15 A.3d 194 (2011) (review of respondent’s challenge to finding that she was unable to benefit from reunification services was moot because she failed to challenge trial court’s finding that department made reasonable efforts to reunify her with children). As our Supreme Court has noted, “it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.” (Emphasis omitted; internal quotation marks omitted.) In re Jorden R., 293 Conn. 539, 556, 979 A.2d 469 (2009).


author: BEAR, J.

text:
    WELLS FARGO BANK, N.A., TRUSTEE v. ROBERT S. STRONG ET AL.
    (AC 36263)
    Lavine, Beach and Bear, Js.

      Argued November 15, 2013
    officially released April 15, 2014

      Jeffrey Gentes, with whom was Pamela A. Heller, for the appellant (defendant Diane Strong).

      Marissa I. Delinks, for the appellee (plaintiff).
   Opinion

BEAR, J.

The defendant Diane Strong appeals from the summary judgment as to liability and the subsequent judgment of strict foreclosure rendered by the trial court in favor of the plaintiff, Wells Fargo Bank, N.A., as trustee. On appeal, the defendant claims that the court erred because (1) it granted summary judgment even though there were genuine issues of material fact about the plaintiffs status as owner of the note and mortgage, which implicated the plaintiffs standing, and (2) it denied her request for an evidentiary hearing regarding the plaintiffs affidavit of debt, upon which it relied in granting the plaintiffs motion for judgment of strict foreclosure. We affirm the judgment of the trial court.

The following undisputed facts and procedural history are relevant to our resolution of the present appeal. The plaintiff commenced the present action by service of process on November 3, 2009. It made the following allegations in its complaint. The Strongs promised to pay $177,100 to the order of H&R Block Mortgage Corporation (H&R Block) by an adjustable rate note dated December 12, 2003. To secure the note, the Strongs mortgaged a parcel of land located at 111 Heather Glen Lane in Mystic to H&R Block. H&R Block later assigned the note and mortgage to Sand Canyon Corporation, formerly known as Option One Mortgage Corporation (Option One), by an instrument dated March 5, 2004. Option One in turn assigned its interest in the note and mortgage to the plaintiff, as trustee for SABR-20040P1 Mortgage Pass-Through Certificates, Series 2004-OP1 (mortgage pool), through the plaintiffs servicer and attomey-in-fact, American Home Mortgage Servicing, Inc., by an instrument dated May 26, 2006. The plaintiff owns the indebtedness evidenced by the note and secured by the mortgage, and it was the holder of the note and owner of the debt when it commenced the present action. The Strongs failed to make payments in accordance with the note, and the defendant therefore is in default under the note and the first paragraph of the mortgage. As a result of the default, the plaintiff accelerated the note and declared the principal balance of the note due and payable.

The Strongs filed an answer and special defense on February 9, 2011. They alleged in their special defense that the plaintiff lacked standing to foreclose on their property because ownership of their indebtedness was not transferred to the plaintiff in accordance with the terms of the pooling and servicing agreement (agreement) that governs the mortgage pool, and, consequently, the plaintiff was not the valid owner of the note and mortgage at the time that it commenced the present action. The plaintiff filed a reply to the Strongs’ answer and special defense on October 28, 2011, in which it denied their special defense.

The plaintiff moved for summary judgment as to liability only on March 9, 2012, on the ground that it had established a prima facie case for foreclosure, and the defendant’s special defense failed to raise a genuine issue of material fact. In support of its motion, the plaintiff submitted copies of the note with an attached allonge indorsed in blank, the mortgage, the two assignments of mortgage, and the notice of default sent to the Strongs, as well as an affidavit given by a vice president of American Home Mortgage Servicing, Inc., who attested that the plaintiff held the defendant’s note and owned her debt before it filed the present action. The defendant filed her objection on March 21, 2012, in which she repeated and elaborated upon her special defense of lack of standing. The court, Devine, J., granted the plaintiffs motion for summary judgment in a memorandum of decision dated June 20, 2012.

The plaintiff filed an affidavit of debt on July 20,2012, in support its motion for judgment of strict foreclosure, filed on November 27, 2009. The affiant, Gerhard Heck-ermann, averred that he was a vice president of the plaintiffs successor servicer and attomey-in-fact, Homeward Residential, Inc. (Homeward). The defendant filed an objection to the motion for judgment of strict foreclosure on July 20, 2012, arguing, inter alia, that “a simple Internet search” established that Hecker-mann is a Jacksonville, Florida-based notary, not a vice president of Homeward, and that his signature on his personal website is different from the signature on the affidavit. On the basis of this argument, the defendant requested that the court hold an evidentiary hearing in order to determine whether Heckermann is a vice president at Homeward, whether he is competent to testify to the matters contained in the affidavit, and whether he actually executed the affidavit.

The court, Cosgrove, J., heard oral argument on the motion for judgment of strict foreclosure on September 17,2012. It subsequently “rejected the defendant’s challenge to the affidavit of debt as being without an eviden-tiary basis” and granted the motion for judgment of strict foreclosure, in an order dated November 21,2012. This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

A

The defendant claims that the court erred in granting summary judgment because there was a genuine issue of material fact about whether the plaintiff validly held the note and owned the mortgage when it commenced the present foreclosure action. The defendant more specifically argues that she demonstrated the plaintiffs failure to meet its burden as movant and overcame her own burden as nonmovant by submitting a copy of the agreement, which provides that (1) all transfers to the trustee under the agreement are to be made by the depositor; (2) any mortgage note in the mortgage pool that is transferred and delivered to the plaintiff must contain a complete chain of endorsement from the originator to the last endorsee; (3) all of the mortgage loans to be conveyed to the plaintiff under the agreement must be transferred concurrently with the execution and delivery of the agreement; and (4) the plaintiffs rights and responsibilities as trustee are strictly limited by New York trust law and the “policy and intention of the Trust to acquire only Mortgage Loans meeting the requirements set forth in th[e] [agreement . . . .”

The copy of the note submitted by the plaintiff in support of its motion for summary judgment did not contain a complete chain of endorsement. Furthermore, the assignment of mortgage upon which the plaintiff relies to establish its receipt of the mortgage is dated May 26, 2006, more than two years after the March 1, 2004 date of the agreement. The assignment also indicates that the assignor was the mortgage pool’s servicer, Option One, and not its depositor, Securitized Asset Backed Receivables, LLC. The defendant consequently argues that these deviations demonstrate that there are genuine issues of material fact about whether the plaintiff validly held the note and owned the mortgage under the agreement when it commenced the present action, such that the plaintiff was not entitled to a judgment as a matter of law. According to the defendant, this is because the agreement wholly governs the plaintiffs ability to hold the note and own the mortgage, and New York trust law, which governs the agreement, limits a trustee’s powers to a trust agreement’s express terms.

We are not persuaded. The issue of whether a mortgagor may challenge a foreclosing party’s standing on the basis of its noncompliance with a pooling and servicing agreement, to which the mortgagor is not a party and in which such mortgagor has no legal interest, is one of first impression for our appellate courts. Nonetheless, our law with respect to foreclosure actions and third-party beneficiaries provides us with a sufficient basis to conclude that the court did not err in granting summary judgment in the present action. We therefore need not address the ever expanding panoply of decisions from courts in other jurisdictions, ranging from state trial courts to federal appellate courts, that have considered the issue under the separate laws and statutes of those jurisdictions.

B

“On appeal, [w]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. . . . Because the trial court rendered judgment for the [plaintiff] as a matter of law, our review is plenary and we must decide whether the [trial court’s] conclusions are legally and logically correct and find support in the facts that appear on the record. . . .

“Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . .

“A material fact is a fact that will make a difference in the outcome of the case. . . . Once the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue .... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book [§ 17-45]. . . . The movant has the burden of showing the nonexistence of such issues but the evidence thus presented, if otherwise sufficient, is not rebutted by the bald statement that an issue of fact does exist. ... To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts . . . which contradict those stated in the movant’s affidavits and documents. . . .

“Further, because the plaintiff sought summary judgment in a foreclosure action, which is an equitable proceeding, we note that the trial court may examine all relevant factors to ensure that complete justice is done. . . . The determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court.” (Citations omitted; internal quotation marks omitted.) Fidelity Bank v. Krenisky, 72 Conn. App. 700, 704-705, 807 A.2d 968, cert. denied, 262 Conn. 915, 811 A.2d 1291 (2002).

“In order to establish a prima facie case in a mortgage foreclosure action, the plaintiff must prove by a preponderance of the evidence that it is the owner of the note and mortgage, that the defendant mortgagor has defaulted on the note and that any conditions precedent to foreclosure, as established by the note and mortgage, have been satisfied. . . . Thus, a court may properly grant summary judgment as to liability in a foreclosure action if the complaint and supporting affidavits establish an undisputed prima facie case and the defendant fails to assert any legally sufficient special defense.” (Citations omitted.) GMAC Mortgage, LLC v. Ford, 144 Conn. App. 165, 176, 73 A.3d 742 (2013).

“A mortgagee that seeks summary judgment in a foreclosure action has the evidentiary burden of showing that there is no genuine issue of material fact as to any of the prima facie elements, including that it is the owner of the debt. Appellate courts in this state have held that the burden is satisfied when the mortgagee includes in its submissions to the court a sworn affidavit averring that the mortgagee is the holder of the promissory note in question at the time it commenced the action. . . . The evidentiary burden of showing the existence of a disputed material fact then shifts to the defendant. It is for the maker of the note to rebut the presumption that a holder of the note is also the owner of it.” (Citations omitted; internal quotation marks omitted.) Id., 177.

Furthermore, “[t]he possession by the bearer of a note indorsed in blank imports prima facie that he acquired the note in good faith for value and in the course of business, before maturity and without any notice of any circumstances impeaching its validity. The production of the note establishes his case prima facie against the makers and he may rest there. . . . It [is] for the [makers] to set up and prove the facts which limit or change the [bearer’s] rights.” (Footnote omitted; internal quotation marks omitted.) Chase Home Finance, LLC v. Fequiere, 119 Conn. App. 570, 578, 989 A.2d 606, cert. denied, 295 Conn. 922, 991 A.2d 564 (2010).

C

In granting summary judgment, the court noted in its well written memorandum of decision: “In the present case, the plaintiff has presented a copy of the note, endorsed in blank, the mortgage and the notice of default sent to the Strongs, which collectively establish the plaintiffs prima facie case for foreclosure. [The defendant] does not dispute the existence or validity of these documents or the fact that the Strongs defaulted. Rather, [the defendant] argues that the evidence is insufficient to demonstrate that the plaintiff is the owner of the debt, as the note was never transferred to the plaintiff in a manner consistent with the [agreement].”

The court then acknowledged that the present action raises an issue of first impression but considered: “In their treatise on Connecticut foreclosures, Denis R. Caron and Geoffrey L. Milne comment on a borrower’s ability to invoke the provisions of a [pooling and servicing agreement] to challenge a plaintiffs prima facie case or standing to foreclose. ‘The relevance of securitization documents on a lender’s standing to foreclose a mortgage is questionable. Simply put, a borrower has a contract—the note and mortgage—with the owner or holder of the loan documents. The borrower, however, is not a party to the pooling and servicing agreement, commonly referred to as a “trust” document. ... It is a basic tenet of contract law that only parties to an agreement may challenge its enforcement. . . . [C]lose scrutiny of trust documents and challenges to their veracity appear to offer little benefit to the court in determining the owner or holder of a note in a particular case. If admissible evidence of holder status has been presented, a borrower must then challenge those facts by competent evidence addressed to the delivery of the loan documents. In most instances, a borrower’s challenge to the content of trust documents or other borrower claims appear to have little relevance to the issue of standing.’ D. Caron & G. Milne, Connecticut Foreclosures (5th Ed. 2011) § 30-3, p. 401.

“ ‘The law of trusts limits the ability of a borrower to challenge whether conditions in the pooling and servicing agreement were satisfied. . . . “[A] stranger to a trust, when sued by the Trustee, cannot set up as a defense a violation of the rights of the Trust by the Trustee.” 90 C.J.S. Trusts, § 363 (a). Generally, the parties to a pooling and servicing agreement are the certifi-cateholders, who own interests in the mortgages, a trustee, a depositor of the assets, and a servicer. Borrowers, however, have no contractual privity with the parties to a pooling and servicing agreement.’ [D. Caron & G. Milne, supra], pp. 405-406 . . . .”

The court ultimately concluded: “The [agreement] states that there were three parties to that agreement: Securitized Asset Backed Receivables, LLC (the depositor), Option One Mortgage Corp [oration] (the servicer) and the plaintiff (the trustee). [The defendant] was not a party to or a third-party beneficiary of the [agreement]. Thus, [she] cannot invoke the terms of the [agreement] to challenge the plaintiffs ability to establish its prima facie case in this foreclosure action. [The defendant] asserts that she is not seeking to ‘enforce’ the [agreement]; rather, she claims that she has simply submitted the [agreement] as evidence to counter the plaintiffs claim that it is the owner of [the defendant’s] debt. The court finds no relevant distinction between these two ways of raising the [agreement] in an attempt to defeat the plaintiffs motion. Simply put, [the defendant] does not have standing to challenge the plaintiffs alleged lack of compliance with the [agreement] in an effort to show that the plaintiff does not own the debt. Accordingly, the plaintiff has established its prima facie case for foreclosure.”

The defendant contends that the court made the following errors in granting summary judgment. The court failed to acknowledge the relationship between the plaintiffs compliance with the agreement and its standing to bring the present action. The court also improperly shifted the burden of proof on summary judgment because the plaintiff could not meet its initial burden, due to its inability to establish its compliance with the agreement. Finally, the court erred in holding that her special defense was legally insufficient because she lacked standing to enforce the agreement as a nonparty. The defendant takes the position that she sought to use the agreement as evidence of the plaintiffs lack of standing, not to enforce its terms against the plaintiff, and even if this court concludes otherwise, it should join certain of our trial courts and courts in other jurisdictions that have recognized the relevance of a pooling and servicing agreement to a foreclosing party’s claim that it owns a mortgage.

D

We begin our analysis by noting, as did the court, that the defendant does not challenge two of the three elements of the plaintiffs prima facie case. Specifically, she does not contest that she has defaulted on the note or that the conditions precedent to foreclosure, as established by the note and mortgage, have been met. Nor does she challenge the veracity of the documents submitted by the plaintiff in support of its motion for summary judgment. The defendant instead challenges only the first element of the plaintiff’s prima facie case, that is, the plaintiffs status as owner of the note and mortgage, and she does so only on the basis of the plaintiffs alleged noncompliance with the agreement.

We therefore direct our attention to the specific agreement provisions that are presently at issue. The agreement provides that it was made among Securitized Asset Backed Receivables, LLC, as depositor, Option One as servicer, and the plaintiff as trustee. The agreement also provides: “Section 2.01 Conveyance of Mortgage Loans, (a) The Depositor, concurrently with the execution and delivery hereof, hereby sells, transfers, assigns, sets over and otherwise conveys to the Trustee/or the benefit of the Certificateholders, without recourse, all the right, title and interest of the Depositor in and to the Trust Fund, and the Trustee, on behalf of the Trust, hereby accepts the Trust Fund.

“(b) In connection with the transfer and assignment of each Mortgage Loan, the Depositor has delivered or caused to be delivered to the Trustee for the benefit of the Certificateholders the following documents with respect to each Mortgage Loan so assigned:

“(i) the original Mortgage Note bearing all intervening endorsements showing a complete chain of endorsement from the originator to the last endorsee, endorsed ‘Pay to the order of_, without recourse’ and signed (which may be by facsimile signature) in the name of the last endorsee by an authorized officer. To the extent that there is no room on the face of the Mortgage Notes for endorsements, the endorsements may be contained on an allonge, if state law so allows and tiie Trustee is so advised in writing by the Responsible Party that state law so allows . . . (Emphasis added.)

The agreement further provides: “Section 10.03 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HERETO AND THE CERTIFT-CATEHOLDERS SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.”

1

We must first address the relationship between the plaintiffs compliance with the agreement and its standing to bring the present foreclosure action, because the issue of standing implicates subject matter jurisdiction. “The issue of standing implicates the trial court’s subject matter jurisdiction and therefore presents a threshold issue for our determination.” (Internal quotation marks omitted.) Massey v. Branford, 119 Conn. App. 453, 458, 988 A.2d 370, cert. denied, 295 Conn. 921, 991 A.2d 565 (2010). “Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy. . . . [When] a party is found to lack standing, the court is consequently without subject matter jurisdiction to determine the cause. . . . We have long held that because [a] determination regarding a trial court’s subject matter jurisdiction is a question of law, our review is plenary. ... In addition, because standing implicates the court's subject matter jurisdiction, the issue of standing is not subject to waiver and may be raised at any time.” (Citations omitted; internal quotation marks omitted.) Equity One, Inc. v. Shivers, 310 Conn. 119, 125-26, 74 A.3d 1225 (2013). “[T]he plaintiff ultimately bears the burden of establishing standing.” Seymour v. Region One Board of Education, 274 Conn. 92, 104, 874 A.2d 742, cert. denied, 546 U.S. 1016, 126 S. Ct. 659, 163 L. Ed. 2d 526 (2005).

In addition to the standards enunciated in part I B of this opinion, “[s]everal general principles concerning mortgage foreclosure procedure . . . guide our analysis. . . . ‘[Standing to enforce [a] promissory note is [established] by the provisions of the Uniform Commercial Code .... [See] General Statutes § 42a-l-101 et seq. Under [the Uniform Commercial Code], only a “holder” of an instrument, or someone who has the rights of a holder is entitled to enforce the instrument. General Statutes § 42a-3-301. The “holder” is the person or entity in possession of the instrument if the instrument is payable to bearer. General Statutes § 42a-l-201 (b) (21) (A). When an instrument is endorsed in blank, it “becomes payable to bearer and may be negotiated by transfer of possession alone . . . .” General Statutes § 42a-3-205 (b). ... In addition, General Statutes § 49-17 allows the holder of a note to foreclose on real property even if the mortgage has not been assigned to him. . . . [Our Supreme Court] also has recently determined that a loan servicer for the owner of legal title to a note has standing in its own right to foreclose on the real property securing the note.’ ” (Citations omitted; footnotes omitted.) Equity One, Inc. v. Shivers, supra, 310 Conn. 126-27.

We reiterate that the defendant does not dispute the validity of the evidence that the plaintiff submitted in support of its motion for summary judgment as to liability to establish that it was not only the holder but also the owner of the note and mortgage before it commenced the present action. Rather, she disputes the validity of the plaintiffs status as the owner of the note and mortgage, based not on the note or the mortgage themselves but on a pooling and servicing agreement in which she has no legal interest and that does not pertain to her payment obligations pursuant to the note and mortgage. Our appellate courts have not required a foreclosure plaintiff to produce evidence of ownership deriving from a pooling and servicing agreement in making its prima facie case on summary judgment.

This court’s opinion in Ninth RMA Partners, L.P. v. Krass, 57 Conn. App. 1, 746 A.2d 826, cert. denied, 253 Conn. 918, 755 A.2d 215 (2000), is relevant to our analysis even though it is distinguishable to the extent that it involved (1) a promissory note pertaining to a nonmortgage debt and (2) defendants who conceded their liability on the note. In Ninth RMA Partners L.P., after the defendants “stipulated to the entry of summary judgment as to liability,” they “contested liability [during the hearing in damages] by claiming that the plaintiff was not a proper holder of the note and, therefore, lacked standing to enforce it. Specifically, the defendants attempted to raise doubts about the chain of title to the note.” (Emphasis added.) Id., 3.

This court rejected the defendants’ position: “The defendants make much of the maxim that standing implicates the subject matter jurisdiction of the court and may be raised at any time. The defendants, however, fail to understand that there is a difference between challenging a party’s standing to maintain a cause of action and challenging the merits of the cause of action itself. The question of standing does not involve an inquiry into the merits of the case. It merely requires the party to make allegations of a colorable claim of injury to an interest which is arguably protected or regulated by the statute ... in question. . . .

“When the defendants argued at the hearing in damages that the plaintiff was not a proper holder of the note, their argument went to the merits of the case, that is, to whether the plaintiff should prevail. Although they called their claim a lack of subject matter jurisdiction, we do not view it as such. We view it, instead, as a claim that goes to the heart of the issues that would have had to be resolved if the case had gone to trial.

“To prevail in an action to enforce a negotiable instrument, the plaintiff must be a holder of the instrument or nonholder with the rights of a holder. . . . This status is an element of an action on a note. . . . The failure to plead this fact properly is challenged by a motion to strike. . . . The failure to prove such element will result in a judgment for the defendants. . . . In neither event is jurisdiction implicated.” (Citations omitted; emphasis added; footnote omitted; internal quotation marks omitted.) Id., 5-6. Similarly, we conclude that the defendant’s challenge to the validity of the plaintiffs status as owner of the note and mortgage, as opposed to the plaintiffs actual possession of the note and ownership of the mortgage, implicates the merits of the present foreclosure action, not the plaintiffs standing to bring the action.

“[T]he term prima facie case has been utilized, according to [one commentator on the law of evidence] . . . where the proponent, having the burden of proving the issue . . . has not only removed by sufficient evidence the duty of producing evidence to get past the judge to the jury, but has gone further, and, either by means of a presumption or by a general mass of strong evidence, has entitled himself to a ruling that the opponent should fail if he does nothing more in the way of producing evidence.” (Emphasis in original; internal quotation marks omitted.) Franklin Credit Management Corp. v. Nicholas, 73 Conn. App. 830, 842, 812 A.2d 51 (2002), cert. denied, 262 Conn. 937, 815 A.2d 136 (2003). Because the plaintiff produced evidence that our appellate courts have recognized as sufficient to establish the elements of its prima facie case, it was entitled to the presumption that it had standing and that there were no genuine issues of material fact precluding a judgment as a matter of law in its favor, barring evidence produced by the defendant that showed otherwise. We thus reject the defendant’s argument that the plaintiffs alleged noncompliance with the agreement undermined the plaintiffs standing to bring the present action and its ability to establish the ownership element of its prima facie case.

2

Although the plaintiffs alleged noncompliance with the agreement did not impede the plaintiffs ability to meet its burden of proving that it was entitled to summary judgment as a matter of law, we cannot say the same with respect to the defendant and her burden of establishing a genuine issue of material fact or that the plaintiff was not entitled to summary judgment as a matter of law. “Contract obligations are imposed because of conduct of parties manifesting consent, and are owed only to the specific individuals named in the contract.” (Internal quotation marks omitted.) Bellemare v. Wachovia Mortgage Corp., 94 Conn. App. 593, 599, 894 A.2d 335 (2006), aff'd, 284 Conn. 193, 931 A.2d 916 (2007). “It is well settled that one who [is] neither a party to a contract nor a contemplated beneficiary thereof cannot sue to enforce the promises of the contract. . . . Under this general proposition, if the plaintiff is neither a party to, nor a contemplated beneficiary of, [the] agreement, she lacks standing to bring her claim for breach of [contract].” (Internal quotation marks omitted.) Cimmino v. Household Realty Corp., 104 Conn. App. 392, 395-96, 933 A.2d 1226 (2007), cert. denied, 285 Conn. 912, 943 A.2d 470 (2008).

The defendant argues that these well established standards do not apply to her special defense of the plaintiffs lack of standing due to its alleged noncompliance with the agreement, because she neither requests relief pursuant to the agreement nor brings an action or counterclaim based on its alleged failure to comply with the agreement. Therefore, she posits, she does not seek to enforce the agreement. She compares her use of the agreement to a tort plaintiffs use of a contract between a principal and its agent to establish their relationship for vicarious liability purposes, or a premises liability plaintiffs use of a lease agreement to establish which party had possession or control of the premises. The defendant, however, does not cite to any authority as to what constitutes or does not constitute contract enforcement in the foreclosure context.

“[A] court may properly grant summary judgment as to liability in a foreclosure action if the complaint and supporting affidavits establish an undisputed prima facie case and the defendant fails to assert any legally sufficient special defense.” GMAC Mortgage, LLC v. Ford, supra, 144 Conn. App. 176. The plaintiff met its burden of proving that it was entitled to summary judgment as to liability and established an undisputed prima facie case by submitting copies of (1) the note with an attached allonge indorsed in blank, (2) the mortgage, (3) the two assignments of mortgage, and (4) the notice of default, as well as an affidavit attesting to the plaintiffs status as holder of the note and owner of the debt at all relevant times. The defendant, however, did not meet her burden of establishing that summary judgment as to liability should not have been rendered by the court either because of a genuine issue of material fact or that it should not have been granted as a matter of law. Accordingly, we conclude that the court did not err in granting the plaintiffs motion for summary judgment.

II

The defendant’s second claim is that the court erred because it improperly denied her request for an eviden-tiary hearing regarding the plaintiffs affidavit of debt, upon which the court relied in granting the plaintiffs motion for judgment of strict foreclosure. More specifically, the defendant argues that the court’s denial of the request was clearly erroneous, given that she had a good faith basis for challenging the validity of the affidavit, and the affidavit was the only evidence before the court when it decided the motion for judgment of strict foreclosure. We are not persuaded.

“Our standard of review regarding challenges to a trial court’s evidentiary rulings is that these rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. . . . Additionally, it is well settled that even if the evidence was improperly admitted, the [defendant] must also establish that the ruling was harmful and likely to affect the result of the trial.” (Internal quotation marks omitted.) National City Mortgage Co. v. Stoecker, 92 Conn. App. 787, 797, 888 A.2d 95, cert. denied, 277 Conn. 925, 895 A.2d 799 (2006).

Practice Book § 23-18 provides: “(a) In any action to foreclose a mortgage where no defense as to the amount of the mortgage debt is interposed, such debt may be proved by presenting to the judicial authority the original note and mortgage, together with the affidavit of the plaintiff or other person familiar with the indebtedness, stating what amount, including interest to the date of the hearing, is due, and that there is no setoff or counterclaim thereto, (b) No less than five days before the hearing on the motion for judgment of foreclosure, the plaintiff shall file with the clerk of the court and serve on each appearing party, in accordance with Sections 10-12 through 10-17, a preliminary statement of the plaintiffs monetary claim.”

The defendant did not raise a defense regarding the amount of the mortgage debt at any point. She makes much of the amount of time between the plaintiffs filing of its affidavit of debt on July 20, 2012, and the scheduled hearing for the plaintiffs motion for judgment of strict foreclosure on July 23,2012, in explaining why she sought to establish her position with limited evidence and through an objection rather than a defense. We are not persuaded. During the July 23,2012 hearing, the parties agreed that the court could “mark off’ the hearing to a future date. The court subsequently heard the motion on September 17, 2012—approxi-mately two months after the plaintiff filed its affidavit of debt and the defendant filed her objection thereto. During that time, the defendant filed a surreply but introduced no additional evidence and made no additional arguments in support of her position on the evi-dentiary sufficiency of the affidavit of debt. “Where a defendant fails to raise a defense as to the amount of the debt, the plaintiff may prove the debt by way of an affidavit pursuant to Practice Book § 23-18.” Bank of America, FSB v. Franco, 57 Conn. App. 688, 694, 751 A.2d 394 (2002) (defendant claimed court improperly rendered judgment of strict foreclosure without competent evidence of debt because affidavit of debt did not identify affiant’s relationship with parties in foreclosure action); cf. Connecticut National Bank v. N. E. Owen II, Inc., 22 Conn. App. 468, 473, 578 A.2d 655 (1990) (“when a defendant mortgagor stipulates to the amount of the indebtedness, he is ordinarily barred from later contesting it” under predecessor to Practice Book § 23-18).

The present action is distinguishable from National City Mortgage Co. v. Stoecker, supra, 92 Conn. App. 798, in which this court held that the trial court abused its discretion in admitting an affidavit of debt into evidence, where the defendant “objected to the affidavit several times” and “specifically contended that the affidavit was hearsay and sought to cross-examine a representative of the plaintiff to ascertain what was paid, when it was paid, by whom it was paid and why it was paid.” “[T]he defendant’s claim seeking to establish the chronology and specific nature of the payments [therefore] was well articulated and . . . readily distinguishable from a vague claim of insufficient knowledge. Because the defendant challenged the amount of the debt, the use of Practice Book § 23-18 to introduce the affidavit [was] prohibited, and the hearsay rules applied].” (Internal quotation marks omitted.) Id., 798-99.

The defendant in the present action challenged the employment and signature of the affiant, not the amount of the debt. She based her challenge on conjecture derived from a cursory Internet search, not on any binding legal authority, recognized legal principle, or relevant evidence. We accordingly conclude that the court did not abuse its discretion in denying the defendant’s request for an evidentiary hearing to challenge the plaintiffs use of an affidavit of debt under Practice Book § 23-18.

The judgment is affirmed and the case is remanded for the purpose of setting a new law day.

In this opinion the other judges concurred.

       Robert S. Strong, the named defendant and Diane Strong’s husband, died during the pendency of this action, on May 19, 2011. His estate has not been substituted as a defendant in this action. After careful review, we conclude that the record does not contain any filings, arguments, or facts addressing the effect of Robert Strong’s death on this action or title to the property at issue. The only defendant involved in this appeal is Diane Strong. We therefore will refer to Robert Strong and Diane Strong collectively as the Strongs and to Diane Strong individually as the defendant hereinafter.

       “Securitization starts when a mortgage originator sells a mortgage and its note to a buyer, who is typically a subsidiary of an investment bank. . . . The investment bank bundles together the multitude of mortgages it purchased into a special purpose vehicle, usually in the form of a trust, and sells the income rights to other investors. ... A pooling and servicing agreement establishes two entities that maintain the trust: a trustee, who manages the loan assets, and a servicer, who communicates with and collects monthly payments from the mortgagors.” (Citations omitted; internal quotation marks omitted.) J.E. Robert Co. v. Signature Properties, LLC, 309 Conn. 307, 313 n.4, 71 A.3d 492 (2013).