McMahon v. City of Middletown, 186 A.3d 58, 181 Conn. App. 68 (2018)

April 17, 2018 · Connecticut Appellate Court · AC 38678
186 A.3d 58, 181 Conn. App. 68

Patrick T. MCMAHON
v.
CITY OF MIDDLETOWN et al.

AC 38678

Appellate Court of Connecticut.

Argued November 27, 2017
Officially released April 17, 2018

*59Richard Padykula, with whom, on the brief, was Leon M. Rosenblatt, West Hartford, for the appellant (plaintiff).

Michael J. Rose, with whom was Cindy M. Cieslak, Hartford, for the appellee (named defendant).

DiPentima, C.J., and Elgo and Bear, Js.

DiPENTIMA, C.J.

*69The plaintiff, Patrick T. McMahon, appeals from the judgment of the trial court rendered *70in favor of the defendant city *60of Middletown (city).1 On appeal, the plaintiff claims that the court contravened General Statutes § 52-1782 by denying his counsel's3 requests to ask leading questions during the direct examination of the city's mayor, former mayor, and former acting deputy police chief. We decline to review this unpreserved claim and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history are relevant. In October, 2007, the plaintiff was hired by the city to be its deputy chief of police. That position was classified in the personnel rules as a "Defined, Non-Bargaining Position," meaning that the city must have "just cause" to terminate employment.

In July, 2009, the city's chief of police retired, and then mayor, Sebastian Giuliano, appointed the plaintiff to the position of acting chief. In October, 2010, Giuliano nominated the plaintiff for permanent appointment as chief of police but the city's common council voted against the nomination. Giuliano nevertheless continued to support the plaintiff's nomination, which the council again rejected in January, 2011. Thereafter, a *71group of citizens successfully petitioned to put the plaintiff's nomination on the November, 2011 ballot. Giuliano maintained his support for the plaintiff, who remained acting chief.

In early October, 2011, an anonymous comment on the website of a local newspaper, the Middletown Press, stated that on Thursday, September 29, 2011, the plaintiff was seen consuming alcoholic beverages in public while armed and in uniform. Shortly after this comment appeared, a reporter from the Middletown Press called the police department concerning the comment. After the ensuing holiday weekend, on Tuesday, October 11, 2011, the acting deputy chief, William McKenna, told the plaintiff of both the comment and the reporter's most recent phone call. The plaintiff was "aggravated" to learn of "these rumors," and immediately called the Middletown Press from McKenna's office while McKenna was present and listening. The plaintiff spoke first to the reporter who had called the police station, and then to the editor, Viktoria Sundqvist. The plaintiff told Sundqvist that the allegation was not true; he was not in uniform at the time and he had consumed "a club soda and lime, but [he's] sure [he] wasn't drinking [alcohol]."

After speaking with Sundqvist, the plaintiff, while still in McKenna's office, called Giuliano. Giuliano's administrative assistant, William Pillarella, listened to the call on speakerphone. At trial, the plaintiff testified that the conversation proceeded *61as follows: "Just directly, I said, Mayor I'm giving you a call because I just spoke to the editor of the Middletown Press. There were some blogs about me drinking [alcohol] on duty in uniform ... at a party at Mezzo Grille. I said I spoke to her and I wanted to give you the heads up in case you hadn't heard anything about that. He said no, I hadn't heard anything.... Mayor, it wasn't a party I was at Mezzo [Grille]. I was off duty, I was in civilian clothes, *72I had a badge and gun on, it was a gathering of sorts for firefighters because-he knew that a firefighter had lost his girlfriend. I said I bought a round of drinks, and I probably had a club soda and lime. I remember saying that I probably had a club soda and lime because his aide, whose voice I recognized on his phone, said wine? I said no; la-la-la-lime, accentuating the word lime because he thought I said wine." Giuliano testified that he believed the plaintiff was telling the truth during their phone call.

McKenna, however, was concerned that the plaintiff's statements to Sundqvist and Giuliano were not true. After listening to the call to Giuliano, McKenna stated to the plaintiff that he had seen him drinking at the Mezzo Grille and that while McKenna could not be certain whether the plaintiff had been "in uniform," the plaintiff nevertheless may have violated a police department rule.4 On October 14, 2011, McKenna contacted Giuliano and Pillarella to inform them of his concerns about the veracity of the plaintiff's statements. Later that same day, two representatives from the police union met with Giuliano and the city's personnel director, Debra Milardo, to express their own concerns about statements the plaintiff had made to union members at a recent meeting to which he had been invited. Eventually, Giuliano came to believe that the plaintiff had demonstrated a serious lapse in judgment by failing to provide Giuliano with all of the relevant information. After consulting further with Milardo and others, Giuliano informed the plaintiff that he would be withdrawing his support for his nomination, returning him to the position of deputy chief, placing him on administrative leave, and opening an investigation into his conduct.

At McKenna's suggestion, the city ultimately hired Attorney Eric P. Daigle to conduct the investigation.

*73While the investigation was ongoing, in November, 2011, Daniel Drew defeated Giuliano in the city's mayoral election. During his campaign, Drew had made a political issue of the plaintiff's appointment.

On February 17, 2012, Daigle submitted his report. He had interviewed thirty witnesses, half of whom reported seeing the plaintiff drinking alcohol in public while wearing his badge and sidearm on various occasions, including at the Mezzo Grille on September 29, 2011. Daigle concluded that the plaintiff had indeed consumed alcohol at the Mezzo Grille while wearing a badge and a sidearm. While it was unclear whether this in and of itself violated any of the relevant police department rules, Daigle concluded that the plaintiff nevertheless had given false and misleading statements and had committed conduct unbecoming a police officer.

On the same day that the report was released, Drew sent the plaintiff a letter notifying him that the city would hold a hearing pursuant to Cleveland Board of Education v. Loudermill , 470 U.S. 532, 538-46, 105 S.Ct. 1487, 84 L.Ed. 2d 494 (1985) ( Loudermill ), to determine whether just cause existed to terminate the plaintiff's employment. In addition to the violations *62Daigle had reported, Drew charged the plaintiff with threatening city employees during a press conference, misleading the press by claiming not to have been drinking alcohol and being insubordinate because he attended a training session while on administrative leave.

At the Loudermill hearing, when given the opportunity to present mitigating evidence, the plaintiff read a lengthy statement in his defense, after which Drew immediately terminated the plaintiff's employment. The plaintiff's attorney objected to the alacrity with which Drew acted, claiming that it was evidence of a predetermined outcome. Drew did not reconsider, and the plaintiff's employment was terminated.

*74On December 6, 2012, the plaintiff brought an action against the city for (1) breach of contract on the ground that he had been terminated without just cause and (2) breach of the covenant of good faith and fair dealing. The bench trial commenced on November 12, 2015, and after the plaintiff testified, he called Milardo, Giuliano, Drew and McKenna as witnesses. During the direct examination of each of those witnesses, counsel for the plaintiff requested the court's permission to ask leading questions as if on cross-examination. The court granted this request with respect to Milardo5 but denied subsequent requests as to Giuliano, Drew and McKenna.6 The court ultimately rendered judgment for the city, finding that the plaintiff had consumed alcohol *75at the Mezzo *63Grille while wearing a badge and sidearm and that the plaintiff deliberately had lied about doing so to Giuliano and others.7 The court concluded that this was just cause for the termination of the plaintiff's employment. The plaintiff appealed.

The plaintiff's sole claim on appeal is that the trial court violated § 52-178 by denying his counsel permission to ask leading questions of Giuliano, Drew and McKenna on direct examination. Specifically, the plaintiff argues that § 52-178 requires a trial court to permit leading questions during the direct examination of a party opponent and its agents and employees; see footnote 2 of this opinion; and that the court's refusal to do so was harmful to his case. The city argues, inter alia, that the plaintiff failed to preserve this claim. We agree with the city.

"Our rules of practice require that a party 'intending to raise any question of law which may be the subject of an appeal must either state the question distinctly to the judicial authority in a written trial brief ... or state the question distinctly to the judicial authority on the record before such party's closing argument and within sufficient time to give the opposing counsel an *76opportunity to discuss the question....' Practice Book § 5-2." Adamo v. Adamo , 123 Conn. App. 38, 45-46, 1 A.3d 221, cert. denied, 298 Conn. 916, 4 A.3d 830 (2010). "It is well established that an appellate court is under no obligation to consider a claim that is not distinctly raised at the trial level. See Practice Book § 60-5.... The requirement that [a] claim be raised distinctly means that it must be so stated as to bring to the attention of the court the precise matter on which its decision is being asked.... We repeatedly have held that [a] party cannot present a case to the trial court on one theory and then seek appellate relief on a different one .... We will not promote a Kafkaesque academic test by which [a trial judge] may be determined on appeal to have failed because of questions never asked of [him] or issues never clearly presented to [him]." (Citations omitted; emphasis in original; internal quotation marks omitted.) DiGiuseppe v. DiGiuseppe , 174 Conn. App. 855, 864, 167 A.3d 411 (2017) ; see also Burnham v. Karl & Gelb, P.C. , 252 Conn. 153, 170-71, 745 A.2d 178 (2000). "These requirements are not simply formalities." (Internal quotation marks omitted.) White v. Mazda Motor of America, Inc. , 313 Conn. 610, 620, 99 A.3d 1079 (2014). "The reason for the rule is obvious: to permit a party to raise a claim on appeal that has not been raised at trial-after it is too late for the trial court or the opposing party to address the claim-would encourage trial by ambuscade, which is unfair to both the trial court and the opposing party." (Internal quotation marks omitted.) Chief Disciplinary Counsel v. Rozbicki , 326 Conn. 686, 695, 167 A.3d 351 (2017).

The plaintiff concedes that he did not specifically direct the trial court to § 52-178 but argues that his requests to ask leading questions "functionally raised" the issue.8 It is true that our appellate *64courts occasionally have "expressed a willingness to review claims that *77a party did not explicitly raise to the trial court if it is clear from the record that the substance of the claim *78was raised." State v. Santana , 313 Conn. 461, 467, 97 A.3d 963 (2014) ; see also Fadner v. Commissioner of Revenue Services , 281 Conn. 719, 729 n. 12, 917 A.2d 540 (2007) ; Salmon v. Dept. of Public Health & Addiction Services , 259 Conn. 288, 305, 788 A.2d 1199 (2002) ; State v. Munoz , 233 Conn. 106, 119 n. 7, 659 A.2d 683 (1995) ; State v. Dabkowski , 199 Conn. 193, 198, 506 A.2d 118 (1986). We sometimes review such claims because, "although a party need not use the term of art applicable to the claim, or cite to a particular statutory provision or rule of practice to functionally preserve a claim, he or she must have argued the underlying principles or rules at the trial court level in order to obtain appellate review." State v. Santana , supra, at 468, 97 A.3d 963. Ordinarily, our appellate courts review claims that are functionally raised "only when a similar claim was raised in the trial court and the record was adequate to review the claim." State v. Misenti , 112 Conn. App. 562, 567, 963 A.2d 696, cert. denied, 291 Conn. 904, 967 A.2d 1220 (2009).

In the present case, the record clearly indicates that the plaintiff did not raise, functionally or otherwise, the substance of the claim he now makes on appeal. Four times over the span of a six day trial, the plaintiff's counsel requested the court's permission to ask leading questions. The *65court denied those requests with respect to Giuliano, Drew and McKenna.9 At each denial, the plaintiff's counsel merely accepted the court's rulings and proceeded with direct examination. See footnote 7 of this opinion. The plaintiff's counsel did not argue, as on appeal, that there was an absolute right to ask leading questions pursuant to § 52-178. Instead, at trial, the plaintiff's counsel requested the court's permission to ask leading questions of three different witnesses, in addition to Milardo, and when such permission was *79not forthcoming as to those three witnesses, the plaintiff's counsel mounted no challenge to the rulings and made no proffer as to the testimony that leading questions might elicit. Although the trial court twice offered to reconsider its ruling if the plaintiff's counsel experienced difficulties examining the witnesses, no such request for reconsideration was made.10 See White v. Mazda Motor of America, Inc. , supra, 313 Conn. at 631, 99 A.3d 1079 ("an issue must be distinctly raised before the trial court, not just briefly suggested" [internal quotation marks omitted] ). In the present case, the plaintiff did not reach the threshold of briefly suggesting, let alone actually arguing, that he had a right to ask leading questions pursuant to § 52-178 ; neither the claimed right nor the statute itself were mentioned at any time during the trial.

On appeal, however, the plaintiff contends that § 52-178 mandates that the trial court permit leading questions during the direct examination of an adverse witness in every instance. Indeed, the plaintiff does not argue that the court abused its discretion by making an erroneous evidentiary ruling, but rather that the court had no discretion to make such a ruling. The plaintiff frames this as a question of statutory interpretation, relying in part on the legislative history of § 52-178 and on the commentary to the Connecticut Code of Evidence § 6-8, as well as related case law. To claim now, for the first time on appeal, that the trial court "contravened" § 52-178 amounts to an ambuscade of that court. There was neither occasion nor opportunity for the court to consider the statute upon which the plaintiff now relies because the plaintiff did not mention it at any time during the trial. See Practice Book § 60-5 ; see also *80White v. Mazda Motor of America, Inc. , supra, 313 Conn. at 639, 99 A.3d 1079 (Eveleigh, J. , dissenting) ("the essence of the preservation requirement is that fair notice be given to the trial court of the party's view of the governing law" [emphasis omitted; internal quotation marks omitted] ). For these reasons, we conclude that the plaintiff's claim was not preserved and decline to review it.

The judgment is affirmed.

In this opinion the other judges concurred.