author: GRUENDEL, J.

text:
    STATE OF CONNECTICUT v. DWAINE ARSENIO MILLER
    (AC 32092)
    Gruendel, Espinosa and Sheldon, Js.

      Argued April 17 —
    officially released August 14, 2012

      Alice Osedach, assistant public defender, for the appellant (defendant).

      SusannE. Gill, supervisory assistant state’s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, and Margaret E. Kelley, senior assistant state’s attorney, for the appellee (state).
   Opinion

GRUENDEL, J.

The defendant, Dwaine Arsenio Miller, appeals from the judgment of conviction, rendered after a jury trial, of one count of burglary in the first degree in violation of General Statutes § 53a-101 (a) (3), one count of burglary in the second degree in violation of General Statutes § 53a-102 (a) and one count of larceny in the third degree in violation of General Statutes §§ 53a-119 and 53a-124 (a) (2). He claims that the trial court erred in denying (1) his motion to suppress his videotaped statement to police and (2) his motion to suppress physical evidence police obtained during their investigatory stop of him in violation of his fourth and fifth amendment rights under the federal constitution. We affirm the judgment of the trial court.

In deciding the defendant’s motions, the court found the following facts. On the morning of April 26, 2008, shortly after 4 a.m., an individual entered the Lantern Point home of a female Fairfield University student while she slept. The student awoke to find the intruder in her bedroom standing near her. The intruder, who appeared to be male, was wearing light colored pants and a dark hooded jacket with the hood pulled tightly around his face. The student screamed for help, after which the intruder fled the house. The student immediately called the police, who responded promptly to her residence. When the police arrived, they did not find the intruder in the home. The police officers determined that a white Macintosh laptop computer and charger belonging to the student’s roommate were missing from the home. While at the residence, the responding officers heard the dispatcher announce an assistance call to a neighboring home.

The assistance call came on behalf of another female Fairfield University student, living in a nearby house in Lantern Point, who also awoke to find an individual standing near her in her bedroom. The student was able to chase the intruder from her home. This intruder also was wearing a dark hooded jacket and light colored pants.

After the report of the first break-in, Bryan Staffey, a Fairfield police officer, headed in his patrol car toward Lantern Point, which is situated in an area with few access roads. While en route to Lantern Point, Staffey observed a lone car, driven by the defendant, a twenty year old male, traveling at roughly fifteen miles per hour away from the Lantern Point area on Fairfield Beach Road, approximately one-eighth of a mile from the reported burglary. As Staffey approached the car, he directed his spotlight at the driver of the car and noticed that the driver turned his head to stare toward his police car and that the driver was sweating profusely. At this point, Staffey became suspicious that the driver of the car had been involved in the first reported burglary. Staffey then made a U-tum and stopped the defendant. Upon stopping the defendant, who was the sole occupant of the car, Staffey requested to see his license and registration, which he produced. From dispatch, Staffey learned that the intruder had been wearing a black “puffy” jacket. Staffey noticed that the defendant was wearing a black windbreaker. Staffey asked the defendant from where he was coming, and the defendant gave an answer Staffey knew conflicted with the direction from which he had observed the defendant’s car traveling. Staffey then asked the defendant to step out of his car and called for assistance.

During the stop, the defendant consented to a search of the passenger compartment of his car, as well as to a search of the trunk. Officers recovered a black “puffy” jacket and a white Macintosh laptop computer from the trunk of the car. While the defendant was stopped, the officers who had responded to the students’ homes brought the students to the scene to determine if they recognized him as the intruder. Although neither student identified the defendant as the intruder, both confirmed that his clothing and physical build were similar to that of the intruder. The first student identified the laptop computer as the one missing from her home. Staffey asked the defendant where he had obtained the laptop computer, to which the defendant first responded that he did not know. The defendant then stated that an unknown, light-skinned man had given it to him after threatening him and demanding his car keys. Subsequently, police arrested the defendant, advised him of his rights and escorted him to the Fair-field police department.

Once at the police department, Staffey again advised the defendant of his rights. Almost three and one-half hours later, at 9 a.m., Detective Kerry Dalling began her interview of the defendant. Dalling prefaced her interview with the defendant by advising him of his rights, for the third time that morning, this time in writing. She gave the defendant a “Waiver of Rights” form and asked that he read aloud the first right described on the form: the right to remain silent. The defendant did so and demonstrated that he understood this right. He also initialed the form indicating that he was waiving his right. Dalling did not request that the defendant read aloud the remaining rights listed on the form. Instead, the defendant silently read those rights, largely related to the right to counsel, as articulated on the form. As he was reading the waiver form, the defendant and Dalling had a colloquy about the defendant retaining a lawyer. During this discussion, Dalling told the defendant that it was his choice whether to speak to her without a lawyer and asked, “I just want to make it very clear. Are we talking?” The defendant then agreed to talk to Dalling and initialed the form, indicating that he waived his rights to silence and to counsel. During the interview that followed, the defendant confessed to entering the home of the first student and taking the laptop computer from her home.

The defendant was charged on October 17, 2008, in a substitute information, with two counts of burglary in the first degree, two counts of burglary in the second degree and one count of larceny in the third degree. On October 23, 2008, the defendant filed motions to suppress the physical evidence obtained by the police during the search of the car, the witness identifications of him and his statements to police. The court held a hearing on those motions, but reserved judgment on the issue of the defendant’s statement to Dalling until trial.

In a memorandum of decision dated April 3, 2009, the court thereafter denied the defendant’s motion to suppress any physical evidence seized from the defendant’s car because it found that the defendant’s consent to the search of his car was voluntary. After concluding that the witness identifications of the defendant were reliable and not unnecessarily suggestive, the court also denied the defendant’s motion to suppress these identifications. The court granted in part and denied in part the defendant’s motion to suppress his statements to police. As it had determined that Staffey’s investigatory stop of the defendant was lawful, the court denied the defendant’s motion with respect to the statements he made in response to Staffey’s question about the location from which the defendant had been traveling when he was stopped. The court suppressed the defendant’s statements made before he was arrested, about how he obtained the laptop and jacket officers found in his trunk, as the court found that these statements were made while the defendant was in custody, but before police had advised him of his rights, in violation of Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The court also suppressed the defendant’s statements made immediately following his arrest. Finally, the court suppressed statements made by the defendant upon his arrival at the police station, but before his interview with Dalling, finding that although Staffey had advised the defendant of his rights, the state had not shown that the defendant waived his rights voluntarily, knowingly and intelligently.

The court conducted a separate hearing on the defendant’s motion to suppress the defendant’s videotaped statement to Dalling. In an oral ruling delivered on September 28,2009, the court denied that motion because it found that the defendant had knowingly and voluntarily waived his rights to silence and to counsel.

After a jury trial, the defendant was convicted of the charges arising out of the first home intrusion: one count of burglary in the first degree, one count of burglary in the second degree and one count of larceny in the third degree. He was acquitted of the remaining charges related to the second home intrusion. The defendant filed a motion for a new trial, which the court denied. The court rendered judgment in accordance with the jury’s verdict and imposed on the defendant a sentence of fifteen years imprisonment, execution suspended after seven years, with five years of probation. This appeal followed.

“As a threshold matter, we set forth the appropriate standard pursuant to which we review a challenge to atrial court’s decisions regarding a suppression motion. This involves a two part function . . . . [T]o the extent that the trial court has made findings of fact, our review is limited to deciding whether those findings were clearly erroneous. Where, however, the trial court has drawn conclusions of law, our review is plenary, and we must decide whether those conclusions are legally and logically correct in fight of the findings of fact.” (Internal quotation marks omitted.) State v. Nowell, 262 Conn. 686, 694, 817 A.2d 76 (2003). “Because a trial court’s determination of the validity of a . . . search [or seizure] implicates a defendant’s constitutional rights ... we engage in a careful examination of the record to ensure that the court’s decision was supported by substantial evidence. . . . However, [w]e [will] give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it . . . .” (Citation omitted; internal quotation marks omitted.) State v. Reynolds, 264 Conn. 1, 43, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S. Ct. 1614, 158 L. Ed. 2d 254 (2004).

I

We address first the defendant’s claim that the court erred in admitting into evidence his videotaped statement to Dalling. The defendant asserts both that he did not knowingly and voluntarily waive his Miranda rights and that his statement was “tainted” by Staffey’s Miranda violation, which occurred prior to the defendant’s arrest. We disagree.

The following additional facts are relevant to the resolution of the defendant’s claim that the court improperly admitted into evidence his statement to Dal-ling. After the defendant was arrested and escorted to the Fairfield police department, he was booked and placed in an interview room. Upon arriving for her 8 a.m. shift, Dalling learned that the defendant had been arrested and that she would be interviewing him. Approximately one hour later, she went to the interview room where the defendant was held and began a conversation with him. This conversation, along with the rest of the defendant’s challenged statement to police, was recorded on video. Following this conversation, Dalling interviewed the defendant, during which he discussed his studies at the University of Bridgeport and ultimately confessed to the first home intrusion and to having taken the laptop that was found in the trunk of his car.

A

The defendant first claims that the court erred in admitting into evidence his videotaped statement to Dalling. We disagree.

“As a general proposition, the law can presume that an individual who, with a full understanding of his or her rights, acts in a manner inconsistent with their exercise has made a deliberate choice to relinquish the protection those rights afford.” Berghuis v. Thompkins, 560 U.S. 370, 385, 130 S. Ct. 2250, 176 L. Ed. 2d 1098 (2010). “Furthermore, [a] defendant’s express written and oral waiver is strong proof that the waiver is valid.” (Internal quotation marks omitted.) State v. Bell, 93 Conn. App. 650, 666, 891 A.2d 9, cert. denied, 277 Conn. 933, 896 A.2d 101 (2006). “To be valid, a waiver must be voluntary, knowing and intelligent. . . . The state has the burden of proving by a preponderance of the evidence that the defendant voluntarily, knowingly and intelligently waived his Miranda rights. . . . In considering the validity of a waiver, we look to the totality of the circumstances of the claimed waiver.” (Internal quotation marks omitted.) State v. Ortiz, 101 Conn. App. 411, 421, 922 A.2d 244, cert. denied, 283 Conn. 911, 928 A.2d 538 (2007). “Factors used to assess the totality of the circumstances include the age of the accused, the extent of his education, evidence concerning advisement of constitutional rights and the length and nature of the interrogation. . . . Although we usually defer to findings made by the trier of fact, such deference is qualified in questions of this nature by the need to examine the record scrupulously to ascertain whether the factual findings were supported by substantial evidence.” (Citation omitted.) State v. Sebastian, 41 Conn. App. 530, 540, 677 A.2d 437, cert. denied, 238 Conn. 906, 679 A.2d 365 (1996).

The totality of the circumstances surrounding the defendant’s interactions with the police following his arrest, as gleaned from the record, demonstrates that he validly waived his Miranda rights. The police advised the defendant of his rights twice before he met Dalling. Dalling then provided these rights to the defendant in writing. The defendant showed, by reading the first right aloud and articulating how the right could be exercised, that he was capable of reading and understanding written English. See footnote 6 of this opinion. Moreover, the defendant had obtained education beyond high school, similarly indicating that he was able to understand his rights and his decision to waive them. At the time of this interview, the defendant was a twenty year old adult, both legally and practically capable of comprehending his rights and his waiver of them. Additionally, neither his age nor his level of education made him vulnerable to misunderstanding his rights as presented to him or to being coerced into involuntarily waiving his rights.

Despite initialing and signing the “Waiver of Rights” form, which states that he has the right to consult an attorney at any time, that a lawyer could be appointed to represent him and that he did not want a lawyer at that time, the defendant nevertheless argues that his waiver was not knowing and voluntary because he asked Dalling questions about a lawyer while reading and completing the form. We do not agree.

The defendant’s comments to Dalling were related to the cost and utility of obtaining a lawyer. They did not indicate that the defendant wished not to speak with her without counsel. Nor did these comments indicate that the defendant did not understand his rights, but rather that he was weighing the relative benefits and costs of exercising those rights. Dailing told the defendant that it was his choice whether to speak to her, in addition to this being printed on the “Waiver of Rights” form. Furthermore, after the defendant raised the subject of a lawyer, but before beginning the interview, Dailing asked one final time, “to make it very clear,” whether the defendant wanted to speak to her, and he agreed to speak to her without a lawyer present.

The totality of these circumstances show that the defendant validly waived his rights. He was advised of his rights more than once, both orally and in writing. The defendant demonstrated an understanding of his Miranda rights and his decision to waive them. He was both adequately educated and old enough to understand his rights and the decision not to exercise them. Additionally, there is no evidence that suggests the defendant did not, in fact, understand his rights. Moreover, the conditions of the defendant’s interview were neither harsh nor intimidating. Most telling, the defendant expressly waived his rights in writing and orally. See State v. Chung, 202 Conn. 39, 50-51, 519 A.2d 1175 (1987) (defendant’s express written and oral waiver strong proof that waiver is valid). Thus, we conclude that the court properly found that the defendant voluntarily and knowingly waived his Miranda rights.

B

We turn next to the defendant’s argument that his statement to Dailing was inadmissible because it was tainted by Staffey’s Miranda violation. We conclude that it was not so tainted.

“ [E]rrors made by police in administering the prophylactic Miranda procedures . . . should not breed the same irremedial consequences as police infringement of the Fifth Amendment itself . . . [and] the admissibility of any subsequent statement should turn in these circumstances solely on whether it [was] knowingly and voluntarily made.” (Citation omitted; internal quotation marks omitted.) State v. Shifflett, 199 Conn. 718, 740-41, 508 A.2d 748 (1986). “[A]bsent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion. A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement.” Oregon v. Elstad, 470 U.S. 298, 314, 105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985). “[T]he finder of fact must examine the surrounding circumstances and the entire course of police conduct with respect to the suspect in evaluating the voluntariness of his statements. The fact that a suspect chooses to speak after being informed of his rights is, of course, highly probative.” Id., 318.

The Miranda violation committed by Staffey was neither deliberately coercive nor tactically improper. After the police discovered the laptop computer and black “puffy” jacket in the trunk of the defendant’s car, but before the defendant had been placed under arrest, Staffey asked only from where the defendant had obtained these items. There is no evidence, and the defendant does not claim, that the police engaged in any coercive conduct in order to obtain the defendant’s statement where he claimed that an unknown light-skinned man had given him the items found in his trunk. As the court established in Elstad, “the task of defining custody is a slippery one,” and “policemen . . . [cannot realistically be expected to] make no errors whatsoever.” (Internal quotation marks omitted.) Oregon v. Elstad, supra, 470 U.S. 309. Staffey committed a technical error in determining when the defendant was in custody and, accordingly, was entitled to be advised of his rights. This error does not constitute, however, coercive or compulsive action by the police warranting exclusion of the defendant’s subsequent statements to the police, statements that did follow proper Miranda warnings.

As the Miranda violation here was a technical one, where the police made an error in administering the warnings, rather than one of constitutional dimension, we look only at whether the defendant made the statement voluntarily — that is, absent police coercion. The most significant indicator of the voluntariness of the defendant’s statement is that he was advised of his rights in three separate instances, and ultimately chose not to exercise these rights. See State v. Gonzalez, 302 Conn. 287, 303, 25 A.3d 648 (2011) (“[subsequent] careful and thorough administration of Miranda warnings serve [s] to cure the condition that rendered the [prior] unwarned statement inadmissible” [internal quotation marks omitted]). Moreover, we do not find that Dalling’s responses to the defendant’s questions about a lawyer were coercive. Dalling provided factual information about the cost of a lawyer in response to the defendant’s inquiries. She reminded the defendant that he could be appointed an attorney, if he qualified financially. Dalling also explicitly told the defendant that whether to speak with her was his choice. Additionally, as the trial court found, Dalling’s interview of the defendant “proceeded] at a conversational pace,” with the defendant remaining unshackled for its entirety and provided with refreshment, conditions that do not indicate that the defendant’s statement was coerced, rather than voluntary. On the basis of these circumstances, and the entire course of police conduct, we conclude that the court properly found that the defendant voluntarily made his statement to Dalling, notwithstanding Staffey’s prior Miranda violation.

Despite the principle announced in Elstad, the defendant argues that his statement should have been excluded nonetheless. Specifically, the defendant asserts that his circumstances fall in line with the exception to Elstad detailed in Missouri v. Seibert, 542 U.S. 600, 124 S. Ct. 2601, 159 L. Ed. 2d 643 (2004). We do not agree.

In Seibert, the police questioned, without administering her Miranda rights, a woman suspected of involvement in an arson that resulted in the death of a disabled boy. Id., 604-605. After obtaining a confession from the woman, the police advised her of her Miranda rights. Id., 605. The detective interviewing her then reminded her of her confession and asked her questions that elicited her confession again. Id. The detective testified at trial that there was a “question first” policy in his department and that he had made a conscious decision to engage in this strategy. Id., 605-606.

The court found that this kind of police tactic undermines the purpose of issuing Miranda warnings before subjecting suspects to custodial interrogation, rendering suspects’ subsequent statements inadmissible. Id., 613-14. Yet, the court distinguished the “question first” scenario challenged in Seibert from the situation in Elstad, where police made an error in administering Miranda warnings. Id., 615-16. “The contrast between Elstad and [Seibert] reveals a series of relevant facts that bear on whether Miranda warnings delivered midstream could be effective enough to accomplish their object: the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and the second, the continuity of police personnel, and the degree to which the interrogator’s questions treated the second round as continuous with the first.” Id., 615.

The disparity between the defendant’s experience and that of the suspect in Seibert is substantial. In Seibert, the police intended to undermine the protections of Miranda, whereas there is no evidence that the Fairfield police had a similar intent. Moreover, in Seibert, the police obtained a confession from the suspect before administering the Miranda warnings. In this case, however, the police asked a single question before advising the defendant of his rights, a question that yielded, rather than a confession, a potentially exculpatory explanation for the evidence found in the defendant’s trunk.

Further, the suspect in Seibert was interviewed continuously by the same detective, in the same place, both before and after the Miranda warning. The defendant, however, made his unwarned statement to Staffey at the scene of the traffic stop near Lantern Point, but made the statement in which he confessed to Dalling at the Fairfield police department. Dalling initiated her interview with the defendant, more than three hours after the defendant made his unwarned statement to Staffey, by saying that she was not “entirely sure” of what had transpired that morning, that she needed to “fill in the spaces.” Her statement indicates that Dal-ling’s interview was not presented as continuous with Staffey’s prewaming question, but rather that it was an interview with the purpose of covering new information. Therefore, we conclude that the defendant’s circumstance is different from that addressed by Seibert. Accordingly, the defendant’s claims are squarely resolved under Elstad. Because the defendant knowingly and voluntarily waived his Miranda rights before making his statement to Dalling, the police advised the defendant of his rights several times and the police did not engage in coercive conduct in obtaining his statements, we conclude that the trial court did not err in admitting into evidence the defendant’s statement to Dalling.

II

We turn next to the defendant’s claim that the court erred in denying his motion to suppress the physical evidence police obtained from the search of his car. The defendant claims that Staffey’s investigatory stop of the defendant was unlawful, thereby tainting his consent to search his car, which rendered the fruits of that search inadmissible. We do not agree.

“Under the fourth amendment to the United States constitution ... a police officer may briefly detain an individual for investigative purposes if the officer has a reasonable and articulable suspicion that the individual has committed or is about to commit a crime. . . . [I]n justifying [a] particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” (Citation omitted; internal quotation marks omitted.) State v. DeMaio, 107 Conn. App. 462, 468, 945 A.2d 980, cert. denied, 287 Conn. 923, 951 A.2d 574 (2008). “Because a reasonable and articulable suspicion is an objective standard, we focus not on the actual state of mind of the police officer, but on whether a reasonable person, having the information available to and known by the police, would have had that level of suspicion.” (Internal quotation marks omitted.) State v. Cyrus, 297 Conn. 829, 837, 1 A.3d 59 (2010).

“The nature of the crime under investigation, the degree of suspicion, the location of the stop, the time of day, the reaction of the suspect to the approach of police are all facts which bear on the issue of reasonableness. . . . Proximity in the time and place of the stop to the crime is highly significant in the determination of whether an investigatory detention is justified by reasonable and articulable suspicion.” (Citation omitted; internal quotation marks omitted.) State v. Gregory, 74 Conn. App. 248, 257-58, 812 A.2d 102 (2002), cert. denied, 262 Conn. 948, 817 A.2d 108 (2003). “[Nervous, evasive behavior ... is a pertinent factor in determining reasonable suspicion.” (Internal quotation marks omitted.) State v. Benton, 304 Conn. 838, 851, 43 A.3d 619 (2012). “[Pjolice officers may reasonably act upon observation of a series of acts, each of them perhaps innocent in itself, but which taken together warranted further investigation.” (Internal quotation marks omitted.) Id., 849.

At the time Staffey made the investigatory stop of the defendant, he had a reasonable suspicion that the defendant had just committed the burglary reported by police dispatch. Although Staffey did not have a full description of the suspect, he did have information regarding the time and place of the incident before stopping the defendant. That information allowed Staf-fey to draw reasonable inferences from his observations of the defendant. Only minutes after the burglary was announced by dispatch, Staffey observed the defendant’s car, one-eighth of a mile from the burglarized home, traveling from the area where the reported burglary had occurred. Additionally, the defendant’s car was the only car on the road, in an area that has few routes of egress. The defendant’s lone presence, close in temporal and physical proximity to the scene of the burglary, contributed to the establishment of reasonable suspicion, thereby permitting the police to stop him. The defendant’s behavior immediately before Staf-fey stopped him also supported the court’s finding of reasonable suspicion. The court found that Staffey observed that the defendant was sweating profusely. Based on these facts, the court’s finding that the stop was justified was reasonable.

The totality of the circumstances, the proximity of the defendant to the home shortly after the burglary, taken together with his observed behavior and demeanor, supported a reasonable suspicion to stop him for investigatory purposes. As we have concluded that the court’s determination that Staffey’s stop of the defendant was not unlawful, we need not analyze whether it tainted the defendant’s consent to the search of his car.

The judgment is affirmed.

In this opinion the other judges concurred.

       Though the defendant claims that all evidence obtained as a result of the investigatory stop should have been suppressed, the defendant’s argument relates solely to the search of his car, which produced a laptop computer and black jacket, rather than any statements made by the defendant or identification witnesses. We therefore address only the propriety of the admission of physical evidence. See Kelib v. Connecticut Housing Finance Authority, 100 Conn. App. 351, 353, 918 A.2d 288 (2007) (claims not adequately briefed deemed abandoned).

       Although the defendant cites to our state constitution in his brief, he has not separately briefed his Connecticut constitutional claims. We, therefore, consider his claim under the federal constitution alone. See State v. Colon, 272 Conn. 106, 154 n.26, 864 A.2d 666 (2004) (“[ajlthough the defendant’s brief adverts to independent rights under the [state] constitution, [when] no such arguments have been briefed . . . they are . . . deemed to have been waived” [internal quotation marks omitted]), cert. denied, 546 U.S. 848, 126 S. Ct. 102, 163 L. Ed. 2d 116 (2005).

       Lantern Point is an area of Fairfield Beach where many Fairfield University students live during the regular school year. The houses on Lantern Point are situated in close proximity to one another.

       The form, titled “Waiver of Rights,” includes the following provisions, each of which the defendant initialed before signing: “I have the right to remain silent. ... If I talk to any police officer anything I say can be used against me. ... I have the right to consult with a lawyer before I answer any questions and I may have a lawyer with me during questioning. ... I have the right to have a lawyer appointed for me, if I cannot afford one, before I answer any questions. ... I know that if I answer questions, I have the right to stop answering at anytime. ... I may stop answering questions at anytime if I wish to talk with a lawyer and I may have him with me during further questioning. ... I am willing to answer questions and make a statement knowing that I have these rights. I do not want a lawyer at this time. I know and understand what I am doing. I do this freely and voluntarily and no threats or promises have been made to me.”

       We note that the defendant does not directly challenge the voluntariness of his confession itself, only the validity of his waiver prior to making the confession.

       The following is a transcript of the relevant portion of the interview, which the court admitted into evidence:
      “[Dalling]: Oh. I’m [Kerry] Dalling, I’m a detective.
      “[The Defendant]: All right.
      “[Dalling]: Nice to meet you. Sorry for the delay, but I had to get filled in on what was going on last night.
      “[The Defendant]: It’s your job.
      “[Dalling]: I’m still not entirely sure, so I’m hoping that you’ll be able to fill in some of the spaces for me. Do you spell it D-w-a-i-n-e? . . .
      “[Dalling]: Okay. I know that the officers downstairs read you your Miranda rights.
      “[The Defendant]: Mm-hmm.
      “[Dalling]: I just want to — and I guess that you do want to talk and you do want to kind of explain your side of the story here? . . .
      “[The Defendant]: Yeah.
      “[Dalling]: — but I just — it’s your choice. So, that being said, I know you were read your rights downstairs, so I want you to just read these. Read the first one out loud for me.
      “[The Defendant]: I have the right to remain silent.
      “[Dalling]: Okay. Do you understand what that means? What does that mean? I know it sounds simple, but I just want to kind of establish that you can read and that you can understand what you read. So, when you read that, I have the right to remain silent, what does that mean to you?

        “[The Defendant]: I have the right to remain silent. I was just doing it.
      “[Dalling]: Exactly, you don’t have to talk, right? Okay. So, read each one and initial.
      “[The Defendant]: You want me to read this one out loud?
      “[Dalling]: No, you can read it to yourself. . . .
      “[The Defendant]: How much is — how much is a lawyer going for right now?
      “[Dalling]: Well, there’s all different kinds. I mean, they’re not cheap, but you could also apply for a public defender if — depending on your financial status.
      “[The Defendant]: It’s not going to help me now, right, I mean—
      “[Dalling]: If you understand everything go ahead and sign.
      “[The Defendant]: All right.
      “[Dalling]: But lawyers are — I mean, sometimes — I mean, I think you can pay — find lawyers that are like 250 an hour; I mean it’s expensive, but if— like I said, depending on your financial means you could qualify for a public defender.
      “[The Defendant]: I got a family friend that’s a lawyer, like, but I think— yeah, go ahead.
      “[Dalling]: . . . I just want to make it very clear. Are we talking? Are you going to talk or—
      “[The Defendant]: I mean, yeah, I’ll let you know what I told them.”

       The defendant also argues that once he asked Dalling questions concerning a lawyer, she had the duty to ask clarifying questions before proceeding with the interview. The defendant asserts that this duty arises specifically in the prewaiver context. That is, if a suspect has not yet validly waived his Miranda rights and makes an ambiguous reference to a lawyer, the police must not proceed with the interview unless they ask questions to clarify whether the defendant is invoking his right to counsel. Neither the Connecticut courts nor the Supreme Court of the United States has recognized such a duty in the prewaiver context. Moreover, the Supreme Courts of Connecticut and the United States have found no such duty to ask clarifying questions after a suspect has validly waived his right to counsel. Davis v. United States, 512 U.S. 452, 462, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994); State v. Hafford, 252 Conn. 274, 292, 746 A.2d 150, cert. denied, 531 U.S. 855, 121 S. Ct. 136, 148 L. Ed. 2d 89 (2000).
      As the state points out, the Supreme Court of the United States has recently decided, in Berghuis v. Thompkins, supra, 560 U.S. 370, that once the suspect has been advised of his or her Miranda rights, the suspect bears the burden of unambiguously asserting the right to silence, regardless of whether the police have obtained a waiver of rights. In Berghuis, the suspect had remained silent for several hours, without having waived his Miranda rights, but then made several inculpatory comments to the police. Id., 375-76. Although it could have, on the facts of the case, the court did not recognize a distinction between the prewaiver and postwaiver contexts with respect to Miranda rights.

       The defendant does not claim that he invoked his fifth amendment right to counsel, but rather argues that the court improperly found that his waiver of this right was valid.

       The defendant also baldly alleges that the stop was a result of racial profiling by Staffey. He does not, however, offer any analysis of this claim, but merely asserts, that an African-American, being stopped in a predominately Caucasian neighborhood, “raises more than a specter” of racial profiling. We need not review that inadequately briefed claim. See State v. Griggs, 288 Conn. 116, 123 n.12, 951 A.2d 531 (2008) (“[ajnalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly” [internal quotation marks omitted]).

       The defendant’s sweating is the only factual finding he challenges. Given that the trial court credited Staffey’s testimony on this point and that the defendant himself noted that he was sweating when Staffey stopped him, we do not conclude that the trial court’s determination was clearly erroneous.


source: Caselaw Access Project

license: Public Domain

text:
    COYLE CRETE, LLC v. KATHLEEN NEVINS
    (AC 33332)
    Gruendel, Beach and Sheldon, Js.

      Argued April 25 —
    officially released August 21, 2012

      Noah J. Schafler, for the appellant (plaintiff).

      ElizabethM. Cristofaro, for the appellee (defendant).
   Opinion

GRUENDEL, J.

The plaintiff, Coyle Crete, LLC, appeals from the summary judgment rendered by the trial court in favor of the defendant, Kathleen Nevins. The plaintiff claims that the court improperly concluded that no genuine issue of material fact existed as to whether its claims were barred by the doctrines of collateral estoppel and res judicata. We agree and, accordingly, reverse the judgment of the trial court.

Mindful of the procedural posture of the case, we set forth the following facts as gleaned from the pleadings, affidavits and other proof submitted, viewed in a light most favorable to the plaintiff. See Martinelli v. Fusi, 290 Conn. 347, 350, 963 A.2d 640 (2009). In November, 2002, the plaintiff commenced a civil action against Six Flags New England (Six Flags) concerning concrete work it performed at the Six Flags amusement park in Agawam, Massachusetts. The defendant, an attorney licensed to practice law in Connecticut, represented Six Flags in that action. It is undisputed that, on May 11, 2005, the plaintiff obtained a money judgment against Six Flags.

On May 18, 2005, the defendant sent the plaintiff a facsimile confirming that the total amount due under the judgment was $18,445.66, which sum included costs and postjudgment interest. On May 20, 2005, the defendant informed the plaintiff that Six Flags would satisfy that judgment without resort to judicial enforcement. When the plaintiff made a demand for payment on May 23, 2005, the defendant assured it that payment would be made contemporaneously with her receipt of the funds from Six Flags. Despite that assurance, the defendant did not tender such payment when she received the funds from Six Flags on June 10, 2005. Instead, she notified the plaintiff on June 13, 2005, that although she had received payment from Six Flags, she was in possession of a property execution of a third party creditor of the plaintiff that was served upon her by state marshal Lisa H. Stevenson. That execution was issued on November 9, 2004, and did not bear the name or last known address of the judgment creditor, and hence was invalid.

On June 14,2005, the plaintiff apprised the defendant of the invalidity of the execution in her possession and again demanded payment. The defendant nevertheless refused to tender the funds. Beginning at approximately 9 a.m. on the morning of June 15, 2005, the plaintiffs attorneys repeatedly telephoned the defendant, who declined to speak with them. She eventually relented and spoke with the plaintiffs attorneys at approximately 2 p.m., at which time the defendant acknowledged that the execution in her possession was invalid. When the plaintiff demanded payment, the defendant indicated that Stevenson soon would be arriving at her office with a new execution. The defendant stated that in order to receive its funds, the plaintiff was “in a race with the [m]arshal” to see who would arrive at her office first. Reminding her that she had not been served with a valid execution, the plaintiffs attorneys again demanded immediate payment consistent with the money judgment against her client. The defendant refused and thereafter surrendered the funds to Stevenson later that day.

On August 30, 2005, the defendant, on behalf of Six Flags, filed a “motion for determination that judgment has been satisfied” in which she averred that (1) she received payment from Six Flags for the plaintiff in the amount of $18,445.66 on June 10, 2005; (2) while she was in possession of those funds, a third party served an execution upon her as a holder of personal property of the plaintiff; (3) in response thereto, she “turned over the plaintiffs funds to . . . Stevenson”; and (4) Six Flags “having paid the judgment in this matter in an amount that the plaintiff agreed would satisfy the judgment, has in fact satisfied the judgment. The fact that the plaintiff was the subject of an execution that is unrelated to this case is irrelevant to the question of [Six Flags’] satisfaction of judgment in this case and should not prevent [Six Flags] from obtaining a satisfaction of judgment.” The plaintiff filed an objection to that motion, in which it claimed that although Six Flags had made payment to the defendant with the express purpose of satisfying its legal obligation to the plaintiff, the defendant nevertheless improperly surrendered those funds to Stevenson. The defendant, on behalf of Six Flags, did not respond to that latter allegation in any manner and no argument was held on the matter. On September 12, 2005, the court granted Six Flags’ motion and determined that it had satisfied the money judgment in favor of the plaintiff. The court subsequently denied the plaintiffs motion to reargue, in which the plaintiff had requested that, “due to the factual complexities surrounding these events, [the court] set this matter down for oral argument.”

The plaintiff commenced the present action in June, 2006. Its revised complaint contained five counts against the defendant arising from her refusal to surrender the funds upon her receipt thereof in the days prior to being served with a valid property execution. The defendant filed an answer and special defenses on May 15, 2009. Those defenses alleged, inter alia, that the plaintiffs claims were barred by the doctrines of collateral estoppel and res judicata.

On November 8, 2010, the defendant filed a motion for summary judgment, in which she averred that she was “entitled to judgment as a matter of law as to all counts under the principles of collateral estoppel and res judicata because the undisputed material facts demonstrate that the issues and claims as to the defendant’s improper conduct in holding and forwarding judgment funds to a third party as alleged in the plaintiff’s complaint has already been litigated in the underlying action when the court decided [Six Flags’] [m]otion for [d]eter-mination as to satisfaction of judgment.” The defendant appended to that motion copies of various pleadings and documents related to the prior action against Six Flags, as well as an affidavit of Stevenson, who attested that “on June 15, 2005 I levied funds being held by [the defendant, and] these funds are a result of payment on a judgment in the [Six Flags litigation].” The plaintiff objected to the motion, on which the court heard argument on November 29, 2010. On March 23, 2011, the court issued a memorandum of decision rendering summary judgment in favor of the defendant, concluding that the plaintiffs claims were barred by both res judi-cata and collateral estoppel. From that judgment, the plaintiff appeals.

Before considering the plaintiffs specific claims, we note that summary judgment is appropriate when “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.” Practice Book § 17-49; Miller v. United Technologies Corp., 233 Conn. 732, 744-45, 660 A.2d 810 (1995). “A material fact is a fact that will make a difference in the result of the case. . . . [T]he burden of showing the nonexistence of any material fact is on the party seeking summary judgment .... It is not enough for the moving party merely to assert the absence of any disputed factual issue; the moving party is required to bring forward . . . evidentiary facts, or substantial evidence outside the pleadings to show the absence of any material dispute.” (Citation omitted; internal quotation marks omitted.) Barasso v. Rear Still Hill Road, LLC, 81 Conn. App. 798, 803, 842 A.2d 1134 (2004). “A motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiffs claim and involves no triable issue of fact.” (Internal quotation marks omitted.) Lunn v. Cummings & Lockwood, 56 Conn. App. 363, 370, 743 A.2d 653 (2000). Because the court’s decision on a motion for summary judgment is a legal determination, our review on appeal is plenary. Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005). Similarly, “[t]he applicability of the doctrines of res judicata or collateral estoppel presents a question of law, over which our review is plenary.” Somers v. Chan, 110 Conn. App. 511, 526, 955 A.2d 667 (2008).

On appeal, the plaintiff maintains that the court improperly concluded that no genuine issue of material fact existed as to whether the doctrines of preclusion bar its claims against the defendant. Those doctrines “are judicially created rules of reason that are enforced on public policy grounds . . . [and] whether to apply either doctrine in any particular case should be made based upon a consideration of the doctrine’s underlying policies, namely, the interests of the defendant and of the courts in bringing litigation to a close . . . and the competing interest of the plaintiff in the vindication of a just claim. . . . These [underlying] purposes are generally identified as being (1) to promote judicial economy by minimizing repetitive litigation; (2) to prevent inconsistent judgments which undermine the integrity of the judicial system; and (3) to provide repose by preventing a person from being harassed by vexatious litigation.” (Citation omitted; internal quotation marks omitted.) Weiss v. Weiss, 297 Conn. 446, 460, 998 A.2d 766 (2010). Both collateral estoppel and res judicata are grormded in “the fundamental principle that once a matter has been fully and fairly litigated, and finally decided, it comes to rest.” State v. Ellis, 197 Conn. 436, 465, 497 A.2d 974 (1985), on appeal after remand sub nom. State v. Paradise, 213 Conn. 388, 567 A.2d 1221 (1990), overruled in part by State v. Skakel, 276 Conn. 633, 693, 888 A.2d 985, cert. denied, 549 U.S. 1030, 127 S. Ct. 578, 166 L. Ed. 2d 428 (2006). At the same time, our Supreme Court has instructed that those doctrines of preclusion “should be flexible and must give way when their mechanical application would frustrate other social policies based on values equally or more important than the convenience afforded by finality in legal controversies. ” In re Juvenile Appeal (83-DE), 190 Conn. 310, 318, 460 A.2d 1277 (1983). Finally, we note that the party asserting a defense of collateral estoppel or res judicata bears the burden of establishing its applicability. See State v. Knight, 266 Conn. 658, 664, 835 A.2d 47 (2003); Commissioner of Environmental Protection v. Connecticut Building Wrecking Co., 227 Conn. 175, 195, 629 A.2d 1116 (1993). With that context in mind, we turn our attention to the plaintiffs specific claims.

I

The plaintiff contends that the court improperly concluded that no genuine issue of material fact existed as to whether collateral estoppel barred its claims in the present case. We agree.

“[C]ollateral estoppel precludes a party from relitigat-ing issues and facts actually and necessarily determined in an earlier proceeding between the same parties or those in privity with them upon a different claim. . . . An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined. . . . An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered. ... If an issue has been determined, but the judgment is not dependent upon the determination of the issue, the parties may relitigate the issue in a subsequent action. Findings on nonessential issues usually have the characteristics of dicta. ... To assert successfully the doctrine of issue preclusion, therefore, a party must establish that the issue sought to be foreclosed actually was litigated and determined in the prior action between the parties or their privies, and that the determination was essential to the decision in the prior case.” (Citations omitted; internal quotation marks omitted.) Dowling v. Finley Associates, Inc., 248 Conn. 364, 373-74, 727 A.2d 1245 (1999). Those requirements serve to ensure “fairness, which is a crowning consideration in collateral estoppel cases.” (Internal quotation marks omitted.) Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 306, 596 A.2d 414 (1991).

In the prior case, a court, trial was held on the issue of whether the plaintiff was entitled to damages for concrete work that it performed at the Six Flags amusement park, at the conclusion of which the court rendered a money judgment in favor of the plaintiff. Certainly, that issue was fully and fairly litigated, and neither party argues to the contrary. It further is undisputed that the parties to that prior action thereafter agreed that the total amount due under that judgment was $18,445.66.

On August 30, 2005, the defendant, on behalf of Six Flags, filed a “motion for determination that judgment has been satisfied.” In that motion, the defendant averred that she had received payment from Six Flags in the amount of $18,445.66 on June 10, 2005, to satisfy the aforementioned judgment. The defendant also indicated that she subsequently turned those funds over to Stevenson when served with a property execution on the personal property of the plaintiff, a copy of which she appended to the motion. Accordingly, the defendant averred that Six Flags “having paid the judgment in this matter in an amount that the plaintiff agreed would satisfy the judgment, has in fact satisfied the judgment. The fact that the plaintiff was the subject of an execution that is unrelated to this case is irrelevant to the question of [Six Flags’] satisfaction of judgment in this case and should not prevent [Six Flags] from obtaining a satisfaction of judgment.” Notably, the plaintiff, in objecting to the motion, did not dispute the fact that Six Flags in good faith had made payment to the defendant. More specifically, the plaintiff averred that the defendant “received the settlement funds from . . . Six Flags on or about June 15, 2005,” and acknowledged that Six Flags had “given [the] funds to [the defendant] with the express purpose of satisfying its legal obligation to pay [the plaintiff] . . . .’’On those pleadings, the court granted the motion and determined that Six Flags had satisfied the money judgment.

Although the filing of a notice of satisfaction of judgment is commonplace; see, e.g., Lestorti v. DeLeo, 298 Conn. 466, 470, 4 A.3d 269 (2010); Powell v. Infinity Ins. Co., 282 Conn. 594, 597, 922 A.2d 1073 (2007); Wells Fargo Bank, NA v. Cornelius, 131 Conn. App. 216, 219, 26 A.3d 700, cert. denied, 302 Conn. 946, 30 A.3d 1 (2011); MedValUSA Health Programs, Inc. v. MemberWorks, Inc., 109 Conn. App. 308, 312-13, 951 A.2d 26 (2008); our courts have not directly addressed the elements of the motion at issue in this appeal, namely, a motion to determine that a money judgment has been satisfied. That is not to say such a motion is improper. Pursuant to General Statutes § 52-350d (a), “[f]or the purposes of postjudgment procedures, the Superior Court shall have jurisdiction over all parties of record in an action until satisfaction of the judgment . . . As used in § 52-350d (a), a postjudgment procedure is “any procedure commenced after rendition of a money judgment”; General Statutes § 52-350a (15); and a money judgment “means a judgment, order or decree of the court calling in whole or in part for the payment of a sum of money . . . General Statutes § 52-350a (13). It is undisputed that the plaintiff obtained a money judgment against Six Flags in the prior action. The court therefore retained jurisdiction over the motion filed by Six Flags. Accord 50 C.J.S. 226, Judgments § 910 (2009) (“court may, on motion and satisfactory proof that a judgment has been paid and satisfied in whole or in part by the act of the parties thereto, order it discharged and canceled of record, to the extent of the payment or satisfaction”); 47 Am. Jur. 2d 382, Judgments § 804 (2006) (courts have inherent power to entertain action to determine whether judgment has been satisfied). Moreover, our rules of practice specifically authorize the filing of a motion to determine that a judgment has been satisfied. Practice Book § 6-5 provides in relevant part that “[w]hen the judgment is satisfied in a civil action, the party recovering the judgment shall file written notice thereof with the clerk, who shall endorse judgment satisfied on the judgment file .... The judicial authority may, upon motion, make a determination that the judgment has been satisfied.” The question pertinent to our inquiry, then, is what issues necessarily must be determined in order for a trial court properly to grant such a motion.

“A satisfaction of judgment is the discharge of an obligation under a judgment by payment of the amount due.” 47 Am. Jur. 2d, supra, § 804, p. 382. “The satisfaction of a judgment refers to compliance with or fulfillment of the mandate thereof. . . . There is realistically no substantial difference between the words paid and satisfied in the judgment context.” (Citation omitted; internal quotation marks omitted.) Mazziotti v. Allstate Ins. Co., 240 Conn. 799, 807, 695 A.2d 1010 (1997). A determination that a judgment has been satisfied “operates to extinguish [the judgment] for all purposes .... It is absolutely determinative of the rights of the parties .... Further proceedings may not commence upon a judgment which has been satisfied . . . .” 50 C.J.S. supra, § 909, p. 225. “Where a judgment creditor has received actual payment of the judgment or any equivalent therefor . . . but [the judgment creditor] refuses to acknowledge or enter satisfaction, the court having control of the judgment may . . . order satisfaction to be entered officially.” (Emphasis added.) Id., § 911, p. 228.

In light of the foregoing, we conclude that the following issues are prerequisites to the rendering of a determination by the court that a money judgment has been satisfied. First, the judgment creditor must have obtained a valid money judgment against the judgment debtor. Second, the judgment debtor must have paid the amount of that judgment. In so doing, the court must find that the judgment debtor either made actual payment to the judgment creditor or a payment equivalent thereto.

We now apply those elements to the matter at hand, cognizant both that the court did not render an oral or written decision in granting Six Flags’ motion for a determination that the judgment had been satisfied and that “[t]his court does not presume error on the part of the trial court . . . .” State v. Tocco, 120 Conn. App. 768, 781 n.5, 993 A.2d 989, cert. denied, 297 Conn. 917, 996 A.2d 279 (2010). It is undisputed that Six Flags did not make actual payment to the plaintiff. Thus, in granting Six Flags’ motion, the court necessarily found that (1) the plaintiff had obtained a valid money judgment against Six Flags in the amount of $18,445.66, and (2) Six Flags thereafter made payment in that amount in a manner equivalent to actual payment to the plaintiff. That latter finding is substantiated by the uncontested facts that Six Flags on June 10,2005, paid the defendant $18,445.66 to satisfy its legal obligation to the plaintiff and that on June 15, 2005, the defendant relinquished those funds to Stevenson upon being served with an execution against the property of the plaintiff. In so doing, the payment by Six Flags satisfied $18,445.66 in debt that the plaintiff legally owed to a third party at that time. Accordingly, the court properly could determine, in rendering a satisfaction of judgment, that the payment constituted an equivalent to actual payment of the money judgment to the plaintiff. Because a satisfaction of judgment “operates to extinguish [the judgment] for all purposes [and] is absolutely determinative of the rights of the parties”; 50 C.J.S., supra, § 909, p. 225; the court on those two predicate findings therefore could extinguish Six Flags’ legal obligation to the plaintiff by rendering a valid satisfaction of judgment.

Returning our attention to the attributes of collateral estoppel, we note that “[f]or estoppel to apply, the fact sought to be foreclosed by [the] defendant must necessarily have been determined in his favor in the prior trial; it is not enough that the fact may have been determined in the former trial. . . . The defendant has the burden of showing that the issue whose relitigation he seeks to foreclose was actually decided in the first proceeding.” (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Aparo, 223 Conn. 384, 406, 614 A.2d 401 (1992), cert. denied, 507 U.S. 972, 113 S. Ct. 1414, 1415, 122 L. Ed. 2d 785 (1993). In the context of summary judgment, our Supreme Court has held that “[a]s the moving party seeking summary judgment, it [is] incumbent upon the defendants to show that the judgment against the plaintiffs in the [prior] action could not have been rendered without deciding the issues upon which the [present] action was predicated.” Dowling v. Finley Associates, Inc., supra, 248 Conn. 378-79. Accordingly, the burden was on the defendant to demonstrate that the issues raised in the present action; see footnote 4 of this opinion; necessarily were determined by the court in deciding Six Flags’ motion for a determination that the judgment had been satisfied in the prior action. That she failed to do. We already have concluded that the court could have rendered a determination that a money judgment had been satisfied without passing on the question of whether the defendant wrongfully withheld the plaintiffs funds for five days after Six Flags tendered payment to her. The defendant has provided this court with no authority, nor are we aware of any, indicating that the issue of her retention of the plaintiffs funds prior to being served with a valid execution is an issue that the court necessarily had to determine prior to concluding that Six Flags had satisfied the money judgment in the prior proceeding.

The sole issue presented in the August 30, 2005 motion for a determination that the judgment had been satisfied was whether the legal obligations of Six Flags should be extinguished with respect to the money judgment in favor of the plaintiff. See 50 C.J.S. supra, § 909, p. 225. That motion plainly represented to the court that because Six Flags had paid the amount of the money judgment in a manner equivalent to actual payment to the judgment creditor, the entry of a satisfaction of judgment in favor of Six Flags was warranted. The motion further represented that ancillary issues, such as whether the plaintiff was subject to an execution by a third party, were “irrelevant” to the question of whether the liability of Six Flags should be extinguished. On that basis, the plaintiff maintains that the court could have granted Six Flags’ motion without ever considering whether the defendant acted improperly in withholding its payment to the plaintiff for a period of five days despite her earlier representation to the plaintiff that payment would be made contemporaneously with her receipt of the funds from Six Flags. We agree. The defendant has not met her burden in demonstrating on the record before us that the court necessarily had to determine the various issues raised in the present action in order to render a valid determination that Six Flags satisfied the money judgment.

We also are mindful that collateral estoppel is a flexible doctrine; Corcoran v. Dept. of Social Services, 271 Conn. 679, 697, 859 A.2d 533 (2004); whose “ ‘crowning consideration’ ” is fairness. Aetna Casualty & Surety Co. v. Jones, supra, 220 Conn. 306. The scope of matters precluded by that doctrine “necessarily depends on what has occurred in the former adjudication.” State v. Ellis, supra, 197 Conn. 467. As the Restatement (Second) of Judgments states in relevant part, “relitigation of [an] issue in a subsequent action between the parties is not precluded in the following circumstances .... A new determination of the issue is warranted by differences in the quality or extensiveness of the procedures followed in the two courts . ...” 1 Restatement (Second), Judgments § 28 (1982). The commentary to that provision explains that in many cases “there is no reason why preclusion should not apply; the procedures followed in the two courts are comparable in quality and extensiveness, and the first court was fully competent to render a determination of the issue on which preclusion is sought. In other cases, however, there may be compelling reasons why preclusion should not apply. For example, the procedures available in the first court may have been tailored to the prompt, inexpensive determination of small claims and thus may be wholly inappropriate to the determination of the same issues when presented in the context of a much larger claim. The scope of review in the first action may have been very narrow.” Id., comment (d), p. 279. That appears to be the case here, as the sole question presented in Six Flags’ motion was whether it had satisfied the money judgment by making a payment equivalent to actual payment to the plaintiff.

We find compelling the fact that neither Six Flags nor the defendant ever disputed the specific allegations raised by the plaintiff before the prior tribunal. In responding to Six Flags’ motion for a satisfaction of judgment determination, the plaintiff filed a three paragraph objection that, inter alia, alleged malfeasance on the part of the defendant while conceding that Six Flags had tendered payment in the proper amount, which ultimately ended up in the hands of one of its creditors via a property execution. The defendant, on behalf of Six Flags, did not acknowledge — never mind refute— the allegations of malfeasance in any manner. Rather, the defendant, on behalf of Six Flags, averred that Six Flags “having paid the judgment in this matter in an amount that the plaintiff agreed would satisfy the judgment, has in fact satisfied the judgment. The fact that the plaintiff was the subject of an execution that is unrelated to this case is irrelevant to the question of [Six Flags’] satisfaction of judgment in this case and should not prevent [Six Flags] from obtaining a satisfaction of judgment.” In addition, no argument was heard on the plaintiffs allegations of malfeasance by the defendant, despite its request therefor, and the court’s decision to grant Six Flags’ motion for a satisfaction of judgment determination did not address the plaintiffs allegations in any manner. Our examination of what transpired in the prior action; see State v. Ellis, supra, 197 Conn. 467; convinces us that the issue of the defendant’s alleged malfeasance was outside the narrow scope of the court’s review into whether the legal obligation of Six Flags to satisfy the money judgment should be extinguished. Accordingly, to apply the doctrine of collateral estoppel in such circumstances strikes us as unfair and unwarranted when the issues raised in the present action were tangential to the prior action.

Under well established law, the defendant bore both the burden of establishing the applicability of collateral estoppel and, given the procedural posture of this case, the lack of any genuine issue of material fact related thereto. It thus was incumbent on her to demonstrate that no genuine issue of material fact existed as to whether the court, in determining that Six Flags had satisfied the money judgment, decided the question of whether the defendant committed the alleged malfeasance in withholding payment to the plaintiff for days before being served with a valid execution by Stevenson despite her earlier assurance to the contrary. Because she did not satisfy that burden, the court improperly rendered summary judgment on collateral estoppel grounds.

n

The plaintiff also argues that the court improperly concluded that no genuine issue of material fact existed as to whether res judicata barred its claims in the present case. The doctrine of res judicata, or claim preclusion, provides that “[a] valid, final judgment rendered on the merits by a court of competent jurisdiction is an absolute bar to a subsequent action between the same parties, or those in privity with them, upon the same claim or demand.” (Internal quotation marks omitted.) Gaynor v. Payne, 261 Conn. 585, 595-96, 804 A.2d 170 (2002). Like collateral estoppel, res judicata is grounded in “the fundamental principle that once a matter has been fully and fairly litigated, and finally decided, it comes to rest”; State v. Ellis, supra, 197 Conn. 465; and thus operates to prevent “relitigation of issues or claims previously resolved.” Commissioner of Environmental Protection v. Connecticut Building Wrecking Co., supra, 227 Conn. 188. For two distinct reasons, we conclude that res judicata is inapplicable to the present case.

First, the defendant has not demonstrated the lack of a genuine issue of material fact as to whether the plaintiff had the opportunity to fully and fairly litigate, and have finally decided, the claims raised in the present action; see footnote 4 of this opinion; before the prior court. The sole question presented by Six Flags’ motion was whether it had satisfied the money judgment by making a payment equivalent to actual payment to the plaintiff. The undisputed facts indicate that in the prior action (1) Six Flags’ asserted that other issues were “irrelevant” to that determination; (2) neither Six Flags nor the defendant acknowledged or refuted the allegations of malfeasance on the part of the defendant in that proceeding; (3) no hearing was held on the matter; and (4) the court did not address those allegations in any manner in determining that Six Flags had satisfied the money judgment. In light of our conclusion in part I of this opinion that the trial court in the prior action properly could decide Six Flags’ motion for a satisfaction of judgment determination without considering the issue of the defendant’s alleged malfeasance, it would be incongruous nevertheless to conclude, given the procedural posture of this case, that no genuine issue of material fact exists as to whether the plaintiff had the opportunity before the prior court both to fully and fairly litigate, and to have finally decided, the claims raised in the present action.

Second, the defendant has not demonstrated the requisite identity of parties. “The doctrine of res judicata [applies] to the parties and their privies in all other actions in the same or any other judicial tribunal of concurrent jurisdiction.” Wade’s Dairy, Inc. v. Fairfield, 181 Conn. 556, 559, 436 A.2d 24 (1980); see also Commissioner of Environmental Protection v. Connecticut Building Wrecking Co., supra, 227 Conn. 188 (same); Corey v. Avco-Lycoming Division, 163 Conn. 309, 317, 307 A.2d 155 (1972) (“[a] final judgment on the merits is conclusive on the parties in an action and their privies as to the cause of action involved”), cert. denied, 409 U.S. 1116, 93 S. Ct. 903, 34 L. Ed. 2d 699 (1973); Barton v. Norwalk, 131 Conn. App. 719, 727, 27 A.3d 513 (whether “the identities of the parties to the actions are the same” is one of “essential elements of res judicata”), cert. denied, 303 Conn. 906, 31 A.3d 1181 (2011); 50 C.J.S., supra, § 936, p. 258 (“[f]or a judgment to be res judicata in a subsequent suit there must be identity of parties or their privies”). The defendant was not a party to the prior action.

On appeal, the defendant argues that privity is not required when a defendant employs the defensive use of res judicata. She provides no authority for that proposition. Rather, the defendant posits that because our case law provides that privity is not required in the context of the defensive use of collateral estoppel; see, e.g., Aetna Casualty & Surety Co. v. Jones, supra, 220 Conn. 300-302; Gionfriddo v. Gartenhaus Cafe, 15 Conn. App. 392, 404, 546 A.2d 284 (1988), aff'd, 211 Conn. 67, 557 A.2d 540 (1989); “the fact that the defendant was not a party or in privity with [Six Flags] is of no consequence here because she is seeking to assert res judicata against the plaintiff, who was a party to the prior adjudication . . . .” That novel assertion plainly is contrary to the well established law of our Supreme Court recognizing, as an “element of the doctrine of res judicata”; Commissioner of Environmental Protection v. Connecticut Building Wrecking Co., supra, 227 Conn. 195; the requirement of mutuality of parties and their privies. Id., 188. It is axiomatic that this court, as an intermediate body, is “bound by Supreme Court precedent and [is] unable to modify it .... [W]e are not at liberty to overrule or discard the decisions of our Supreme Court but are bound by them. . . . [I]t is not within our province to reevaluate or replace those decisions.” (Citation omitted; internal quotation marks omitted.) State v. Smith, 107 Conn. App. 666, 684-85, 946 A.2d 319, cert. denied, 288 Conn. 902, 952 A.2d 811 (2008). Proper regard for this court’s role as an intermediate appellate tribunal precludes our reconsideration of the aforementioned precedent.

Alternatively, the defendant maintains that she is in privity with Six Flags. She claims that because the plaintiff raised the issue of her alleged malfeasance in its opposition to Six Flags’ motion for a judgment of satisfaction, “her interests and rights were represented such that privily would exist between her and [Six Flags].” We disagree with the defendant that no genuine issue of material fact exists as to whether she is in privity with Six Flags.

Our Supreme Court has explained that “[p]rivity is a difficult concept to define precisely. . . . There is no prevailing definition of privity to be followed automatically in every case. It is not a matter of form or rigid labels; rather it is a matter of substance. In determining whether privity exists, we employ an analysis that focuses on the functional relationships of the parties. Privity is not established by the mere fact that persons may be interested in the same question or in proving or disproving the same set of facts. Rather, it is, in essence, a shorthand statement for the principle that [the doctrines of preclusion] should be applied only when there exists such an identification in interest of one person with another as to represent the same legal rights so as to justify preclusion.” (Citation omitted.) Mazziotti v. Allstate Ins. Co., supra, 240 Conn. 813-14. “A key consideration in determining the existence of privity is the sharing of the same legal right by the parties allegedly in privity.” (Internal quotation marks omitted.) Id., 813.

In the present case, commonality of interest appears to be lacking. Because the court properly could determine that Six Flags had satisfied the money judgment without passing on the question of whether the defendant committed the transgressions alleged in the present action, Six Flags had little interest in the resolution of that question. If anything, Six Flags possessed an interest potentially adverse to that of the defendant, as such allegations, if proven, could give rise to a dispute between it and the defendant regarding her representation thereof. Absent commonality of interest, there can be no privity. See id., 814.

Viewing the pleadings, affidavits and other proof submitted in a fight most favorable to the plaintiff, we conclude that genuine issues of material fact exist as to whether the plaintiffs claims are barred by the doctrines of collateral estoppel and res judicata. Accordingly, the court improperly rendered summary judgment in favor of the defendant.

The judgment is reversed and the case is remanded for further proceedings according to law.

In this opinion the other judges concurred.

       In its three paragraph objection, the plaintiff alleged, inter alia, that “[o]n June 13, 2005, two full days prior to the execution being issued, demand for payment of the settlement funds was made upon the [defendant, who] refused to turn over the settlement funds on June 13, 2005. Demand was made upon [her] again on June 14, 2005, and June 15, 2005 to pay over the settlement funds, again [she] refused to pay over the funds, and instead alerted a judgment creditor of [the plaintiff’s] that she was holding the settlement funds. Thus, [the defendant] acting in conspiracy with [the plaintiff’s] judgment creditor . . . converted the settlement funds.” In light of the foregoing, the plaintiff further alleged that “while Six [Flags] may have given funds to [the defendant] with the express purpose of satisfying its legal obligation to pay [the plaintiff, the defendant] unlawfully withheld those funds and unlawfully turned them over to [the judgment creditor].”

       In rendering a determination that the money judgment has been satisfied, the court did not issue an oral or written decision. Rather, the court circled “granted” on the order page of the plaintiffs motion and signed that document on September 12, 2005.

       At oral argument before this court, counsel for the defendant stated that the record indicates that “neither of the parties asked for oral argument” in the proceeding on the motion for a judgment of satisfaction. The plaintiffs October 7, 2005 motion to reargue its objection to that motion, which the defendant has included in the appendix to her appellate brief, plainly belies that assertion.

       The plaintiffs complaint alleged that the defendant (1) made false material representations upon which it relied to its detriment, (2) wrongfully withheld its property, thereby committing statutory theft in violation of General Statutes § 52-564 et seq., (3) committed conversion, (4) violated the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq., and (5) and breached her duties of care pursuant to the Rules of Professional Conduct.

       The defendant herself did not submit an affidavit.

       In its original appellate brief, the plaintiff claimed only that the court improperly determined that no genuine issue of material fact existed as to whether its claims were barred by res judicata. In her appellate brief, the defendant raised, as an alternate ground of affirmance, the issue of whether the court also correctly concluded that no genuine issue of material fact existed as to whether the plaintiffs claims were barred by collateral estoppel. This court subsequently ordered the parties to file simultaneous supplemental briefs addressing that issue.

       In light of the plaintiffs concession that the defendant ultimately surrendered the payment from Six Flags to avalid third party creditor of the plaintiff via Stevenson, it is difficult to discern precisely how the plaintiff suffered damages as a result thereof. Nevertheless, that is not at issue in this appeal.

       While certainly a situation in which the defendant’s payment of a client’s funds to a third party lacking legal claim thereto could require consideration by a court confronted with a motion to determine whether a judgment had been satisfied; see 50 C.J.S., supra, § 911, p. 228 (in acting on motion to determine whether judgment is satisfied, court may be required to decide “disputed issues of fact”); that is not the case here, as it is undisputed that Stevenson ultimately served the defendant with a valid execution and secured the plaintiffs funds from Six Flags. Moreover, such consideration would pertain to the question of whether the judgment debtor made a payment equivalent to actual payment to the judgment creditor. By contrast, in a case such as this, where the parties concede both (1) that Six Flags tendered payment of the money judgment to the defendant and (2) that the defendant furnished those funds to a valid third party judgment creditor via Stevenson five days later, the court could have determined that Six Flags had satisfied its legal obligation to the plaintiff while leaving for another day the question of whether the defendant committed the various alleged offenses; see footnote 4 of this opinion; in refusing to relinquish the funds to the plaintiff in the interim of those two events. Stated differently, it is possible for a court to determine whether a judgment debtor made a payment equivalent to actual payment to the judgment creditor and thereby satisfied the money judgment without necessarily deciding whether the judgment debtor’s attorney committed malfeasance in the handling of those funds prior to tendering such payment.

       As a result, even if the court expressly had addressed the plaintiffs allegations of malfeasance on the part of the defendant — which it did not— it nevertheless remains that when “an issue has been determined, but the judgment is not dependent upon the determination of the issue, the parties may relitigate the issue in a subsequent action. Findings on nonessential issues usually have the characteristics of dicta.” (Internal quotation marks omitted.) Dowling v. Finley Associates, Inc., supra, 248 Conn. 374; see also 1 Restatement (Second), Judgments § 27, comment (h), p. 258 (1982) (“Such determinations have the characteristics of dicta, and may not ordinarily be the subject of an appeal by the party against whom they were made. In these circumstances, the interest in providing an opportunity for a considered determination, which if adverse may be the subject of an appeal, outweighs the interest in avoiding the burden of relitigation.”).

       Her novel argument to the contrary, the defendant in her appellate brief quotes a decision of the Superior Court for the principle that “[f]or res judicata to apply, four . . . elements must be established [including] the [identities] of the parties must be the same in both actions . . . .” (Internal quotation marks omitted.)