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PATRICK T. MCMAHON v. CITY OF
MIDDLETOWN ET AL.
(AC 38678)
DiPentima, C. J., and Elgo and Bear, Js.
Syllabus
The plaintiff sought to recover damages from the defendant city of Middle-
town for breach of an employment contract and breach of the implied
covenant of good faith and fair dealing in connection with the allegedly
wrongful termination of his employment as the defendant’s deputy chief
of police without just cause. During the plaintiff’s direct examination
of four witnesses at trial, the plaintiff’s counsel requested the court’s
permission to ask leading questions, which the court denied as to three
of the witnesses. Thereafter, the trial court rendered judgment for the
city, from which the plaintiff appealed to this court. Held that this court
declined to review the plaintiff’s claim that the trial court violated statute
(§ 52-178) when it denied his counsel permission to ask leading questions
of the three allegedly adverse parties on direct examination, the plaintiff
having failed to preserve the claim by raising it at trial; the plaintiff
conceded that he did not specifically direct the trial court to § 52-178
but claimed that his requests to ask leading questions ‘‘functionally
raised’’ the issue, and although our appellate courts occasionally have
reviewed a claim that a party did not explicitly raise to the trial court
if it was clear from the record that the substance of the claim was
raised, the record here clearly indicated that the plaintiff did not raise,
functionally or otherwise, the substance of the claim made on appeal,
as the plaintiff’s counsel did not argue at trial, as on appeal, that § 52-
178 mandated that the court permit leading questions during the direct
examination of an adverse witness in every instance and, instead,
requested the court’s permission to ask leading questions of the three
witnesses, and when such permission was not forthcoming, the plaintiff’s
counsel mounted no challenge to the court’s rulings and made no proffer
as to the testimony that the leading questions might have elicited.
Argued November 27, 2017—officially released April 17, 2018
Procedural History
Action to recover damages for, inter alia, breach of
an employment contract, and for other relief, brought
to the Superior Court in the judicial district of New
London at Norwich and transferred to the Superior
Court in the judicial district of New London, where the
action was withdrawn as against the defendant Eric P.
Daigle; thereafter, the matter was tried to the court,
Hon. Joseph Q. Koletsky, judge trial referee; judgment
for the defendant city of Middletown, from which the
plaintiff appealed to this court. Affirmed.
Richard Padykula, with whom, on the brief, was
Leon M. Rosenblatt, for the appellant (plaintiff).
Michael J. Rose, with whom was Cindy M. Cieslak,
for the appellee (named defendant).
Opinion
DiPENTIMA, C. J. The plaintiff, Patrick T. McMahon,
appeals from the judgment of the trial court rendered
in favor of the defendant city of 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 rele-
vant. 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 contin-
ued to support the plaintiff’s nomination, which the
council again rejected in January, 2011. Thereafter, a
group 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 plain-
tiff 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 drink-
ing [alcohol].’’
After speaking with Sundqvist, the plaintiff, while still
in McKenna’s office, called Giuliano. Giuliano’s admin-
istrative assistant, William Pillarella, listened to the call
on speakerphone. At trial, the plaintiff testified that
the conversation proceeded as 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,
I 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 con-
tacted 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 direc-
tor, 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. Eventu-
ally, 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, Giuli-
ano 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.
While the investigation was ongoing, in November,
2011, Daniel Drew defeated Giuliano in the city’s may-
oral 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 con-
sumed 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 Daigle 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 opportu-
nity 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 predeter-
mined outcome. Drew did not reconsider, and the plain-
tiff’s employment was terminated.
On 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
at the Mezzo Grille 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 permis-
sion to ask leading questions of Giuliano, Drew and
McKenna on direct examination. Specifically, the plain-
tiff 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 foot-
note 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
opportunity 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 deter-
mined 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 courts occasion-
ally have ‘‘expressed a willingness to review claims that
a party did not explicitly raise to the trial court if it is
clear from the record that the substance of the claim
was 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, 468. 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 court 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
not forthcoming as to those three witnesses, the plain-
tiff’s counsel mounted no challenge to the rulings and
made no proffer as to the testimony that leading ques-
tions might elicit. Although the trial court twice offered
to reconsider its ruling if the plaintiff’s counsel experi-
enced difficulties examining the witnesses, no such
request for reconsideration was made.10 See White v.
Mazda Motors of America, Inc., supra, 313 Conn. 631
(‘‘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 ques-
tions 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 ques-
tions during the direct examination of an adverse wit-
ness 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 interpreta-
tion, 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 White v. Mazda Motors of America, Inc.,
supra, 313 Conn. 639 (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 quota-
tion 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.
1
The plaintiff also named Attorney Eric P. Daigle as a defendant, alleging
tortious interference with a contract and civil conspiracy. The claims against
Daigle were withdrawn; he is not party to this appeal.
2
General Statutes § 52-178 provides: ‘‘A party to a civil action or probate
proceeding: (1) May compel any adverse party, any person for whose benefit
the action or proceeding is instituted, prosecuted or defended, or any officer,
director, managing agent, or other agent or employee having knowledge of
facts relevant to the action or proceeding, of a public or private corporation,
partnership or association which is an adverse party or for whose benefit
the action or proceeding is instituted, prosecuted or defended, to testify as
a witness in his behalf, in the same manner and subject to the same rules
as other witnesses; (2) may take the deposition of such party or person in
the same manner and subject to the same rules as those pertaining to the
taking of other depositions; and, (3) in either case, may examine such party
to the same extent as an adverse witness.’’
3
At trial, two attorneys appeared on behalf of the plaintiff. For the sake
of convenience, we refer to both of them as ‘‘the plaintiff’s counsel.’’
4
McKenna later testified that he had personally seen the plaintiff order
‘‘a Jack Daniels on the rocks’’ while wearing a badge and sidearm.
5
‘‘[The Plaintiff’s Counsel]: Your Honor, at this time I’d like permission
to lead the witness given that she was the Personnel Director at the time.
‘‘The Court: Objection?
‘‘[The City’s Counsel]: There is; I don’t believe it’s a hostile witness, I
don’t believe there’s any indication she needs to be led.
‘‘The Court: Granted.
‘‘[The Plaintiff’s Counsel]: Thank you.’’
6
With respect to Giuliano, the following exchange occurred:
‘‘[The Plaintiff’s Counsel]: Your Honor, I request permission to lead the
witness.
‘‘The Court: Denied.
‘‘[The Plaintiff’s Counsel]: Excuse me?
‘‘The Court: Denied.
‘‘[The Plaintiff’s Counsel]: Thank you.
‘‘The Court: That hardly is a foundation; I see nothing but openness and
lack of hostility. I’m aware of Mayor Giuliano’s role in this; I have been
paying a moderate amount of attention during the trial. So, let’s proceed.
‘‘[The Plaintiff’s Counsel]: Very good, Your Honor.’’
The court also denied the request of the plaintiff’s counsel to ask leading
questions of Drew:
‘‘[The Plaintiff’s Counsel]: Your Honor, at this time I’d like permission to
treat the witness as a party opponent, an adverse witness, and lead?
‘‘The Court: No, it helps me as the trier of fact not to hear leading questions.
If you’re having difficulty, then I’ll grant you the permission; I don’t see any
indication that the witness is not going to respond fully and fairly to your
nonleading questions, and it is an aid to me as the fact finder. So, for the
moment the motion is denied with leave to renew if you’re perceiving that
the only way you can perform your task is with leading.
‘‘[The Plaintiff’s Counsel]: Understood, Your Honor. Thank you.’’
Finally, the court denied the plaintiff’s request to ask leading questions
of McKenna:
‘‘[The Plaintiff’s Counsel]: Your Honor, I would request permission to use
leading questions—
‘‘The Court: Let’s see how it goes, denied; let’s see how it goes.
‘‘[The Plaintiff’s Counsel]: All right, okay.
‘‘The Court: If you’re getting what appear to me to be open and complete
answers without leading questions, as I told your co-counsel, I vastly prefer
it as the trier of fact because it helps me to assess credibility much better.
‘‘[The Plaintiff’s Counsel]: Okay.
‘‘The Court: If, however, you perceive, and I agree, that the witness is
indeed hostile, I will be happy to reconsider my denial of your request for
leading questions.
‘‘[The Plaintiff’s Counsel]: Okay.’’
7
The court expressly declined to decide whether the plaintiff had been
‘‘in uniform.’’
8
In his reply brief, the plaintiff also suggests, for the first time, two
alternative grounds for review of this nonconstitutional claim. First, he
contends that this court may consider an unpreserved claim where it is ‘‘in
the interest of public welfare or of justice between the parties.’’ (Emphasis
omitted.) See Perez-Dickson v. Bridgeport, 304 Conn. 483, 500, 43 A.3d
69 (2012). We conclude that this claim is inadequately briefed and, thus,
abandoned. See Electrical Contractors, Inc. v. Dept. of Education, 303 Conn.
402, 444 n.40, 35 A.3d 188 (2012) (‘‘Claims are inadequately briefed when
they are merely mentioned and not briefed beyond a bare assertion. . . .
Claims are also inadequately briefed when they are raised for the first time
in a reply brief . . . or consist of conclusory assertions . . . with no men-
tion of relevant authority and minimal or no citations from the record . . . .’’
[Citations omitted; internal quotation marks omitted.]).
Second, in a footnote, the plaintiff argues that plain error review may be
appropriate—a claim repeated at oral argument before this court. See Prac-
tice Book § 60-5. ‘‘It is well established that the plain error doctrine . . .
is an extraordinary remedy used by appellate courts to rectify errors commit-
ted at trial that, although unpreserved [and nonconstitutional in nature], are
of such monumental proportion that they threaten to erode our system of
justice and work a serious and manifest injustice on the aggrieved party.
[T]he plain error doctrine . . . is not . . . a rule of reviewability. It is a
rule of reversibility. That is, it is a doctrine that this court invokes in order
to rectify a trial court ruling that . . . requires reversal of the trial court’s
judgment . . . for reasons of policy. . . . In addition, the plain error doc-
trine is reserved for truly extraordinary situations [in which] the existence
of the error is so obvious that it affects the fairness and integrity of and
public confidence in the judicial proceedings. . . . Plain error is a doctrine
that should be invoked sparingly. . . . Implicit in this very demanding stan-
dard is the notion . . . that invocation of the plain error doctrine is reserved
for occasions requiring the reversal of the judgment under review. . . .
‘‘An appellate court addressing a claim of plain error first must determine
if the error is indeed plain in the sense that it is patent [or] readily [discern-
ible] on the face of a factually adequate record, [and] also . . . obvious in
the sense of not debatable. . . .
‘‘[An appellant] cannot prevail under [the plain error doctrine] . . . unless
he demonstrates that the claimed error is both so clear and so harmful
that a failure to reverse the judgment would result in manifest injustice.’’
(Emphasis in original; internal quotation marks omitted.) Estela v. Bristol
Hospital, Inc., 179 Conn. App. 196, 199–200 n.2, A.3d (2018). After
a careful reading of the record, we are not convinced that the claimed error
is so clear that it is ‘‘[discernible] on the face of a factually adequate record’’
or ‘‘obvious in the sense of not debatable.’’ (Internal quotation marks omit-
ted.) Id., 200 n.2. Moreover, because the plaintiff’s counsel made no showing
that the preclusion of leading questions harmed the plaintiff in any way, we
are not convinced that the claimed error was ‘‘so harmful that a failure to
reverse the judgment would result in manifest injustice.’’ (Internal quotation
marks omitted.) Id. Accordingly, we decline to reverse the judgment under
the plain error doctrine.
9
Conversely, in addition to permitting the plaintiff’s counsel to ask leading
questions of Milardo; see footnote 6 of this opinion; the court at least twice
overruled objections from the city’s counsel to leading questions.
10
Additionally, the record reveals that, on at least one occasion, the court
contemplated whether to reassess its ruling sua sponte, noting that it was
‘‘inclined to start permitting [leading questions]’’ during the examination
of Drew.