Fishbein v. Menchetti

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
DAVID M. FISHBEIN v. TONI MENCHETTI
(AC 37638)
DiPentima, C. J., and Alvord and Sheldon, Js.
Argued March 10—officially released April 26, 2016

(Appeal from Superior Court, judicial district of New
Haven, Burke, J.)
Richard P. Savitt, for the appellant (plaintiff).
Gerald M. Still, for the appellee (defendant).
Opinion

PER CURIAM. The plaintiff, David M. Fishbein,
appeals from the judgment, after a trial to the court,
rendered in part in favor of the defendant, Toni Men-
chetti. On appeal, the plaintiff’s primary claim is that
the court improperly found that checks he issued on
behalf of the defendant to a hospital and a medical
group constituted gifts and not loans. We disagree, and,
accordingly, affirm the judgment of the trial court.
The following procedural history and facts, as set
forth in the court’s memorandum of decision, are rele-
vant to this appeal. The parties began a romantic rela-
tionship in 2008, and lived together for a period of time.
The defendant filed a voluntary bankruptcy petition in
2009. Her financial difficulties arose, in part, from her
health issues, namely, significant back problems that
caused her excruciating pain and limited her mobility.
At some point in 2008, it was determined that the defen-
dant required surgery.
The defendant’s health insurance provider declined
coverage for her disc replacement surgery. The plaintiff
issued two checks to pay the defendant’s surgical
expenses. The first check was payable to the Yale Medi-
cal Group in the amount of $33,500, and the second
was payable to Yale-New Haven Hospital in the amount
of $33,000. The plaintiff made the notation ‘‘Toni Men-
chetti loan from David Fishbein’’ on both checks. The
plaintiff also provided additional loans to the defendant
for other transactions not relevant to the plaintiff’s
appeal. At some point, the parties’ romantic relation-
ship ended.
By service of a complaint dated August 28, 2012,
the plaintiff commenced the present action against the
defendant. He claimed that he had loaned the defendant
a total of $71,769.29 and that the defendant had
breached her contractual obligation to repay that
amount. The plaintiff also alleged that he was entitled
to recover all sums that he had loaned to the defendant
under the equitable theories of unjust enrichment and
quantum meruit.
After a trial, the court issued a memorandum of deci-
sion on January 6, 2015. It determined that the plaintiff’s
breach of contract claim was barred by the statute of
frauds. See General Statutes § 52-550 (a) (6). With
respect to the plaintiff’s claims of unjust enrichment
and quantum meruit, the court determined that the dis-
positive issue was whether the two checks written by
the plaintiff constituted loans or gifts. The court noted
that the plaintiff wrote the words ‘‘Toni Menchetti loan
from David Fishbein’’ on the memorandum line of the
two checks written for the defendant’s surgery. Further-
more, the court observed that at the defendant’s bank-
ruptcy hearing, the plaintiff, attending as a ‘‘ ‘friend of
the debtor,’ ’’ stated that he loaned the defendant money
for her surgical expenses and expected to be repaid
from the sale of properties owned by the defendant. The
court, however, also credited the defendant’s witnesses,
all of whom ‘‘testified that the plaintiff told them that
he intended to gift the surgery payments to the [defen-
dant].’’ The court noted that these witnesses had not
been impeached and that it found them credible. The
court concluded: ‘‘The court finds that the plaintiff has
presented evidence that, during the [bankruptcy] hear-
ing, he intended to be reimbursed for the surgery pay-
ments. The defendant has presented evidence, however,
that subsequent to the [bankruptcy] hearing, the plain-
tiff represented that he was going to pay and that he
did not expect to be reimbursed. The court infers from
these two facts that subsequent to the [bankruptcy]
hearing, the plaintiff changed his mind . . . .’’
As a result of its finding that the plaintiff had gifted
the money to the defendant for her back surgery, the
court determined that the plaintiff was not entitled to
recover the $66,500 on any equitable theory. The court
further concluded that the plaintiff’s additional pay-
ments to the defendant for legal fees and insurance
payments, in the amount of $5470, were not gifts.
Accordingly, the court determined that the defendant
had been unjustly enriched by her retention of that
money and ordered her to repay it to the plaintiff. The
court did not award any interest. This appeal followed.
On appeal, the plaintiff first claims that the defendant
committed a fraud on the court. This issue was raised
for the first time in the plaintiff’s postjudgment motion
‘‘to set aside or open judgment’’ and ‘‘to reargue,’’ which
was filed on January 28, 2015.1 The plaintiff, however,
failed to raise this fraud claim at trial or in his posttrial
brief; the first time it was mentioned was in the post-
judgment motion. His appeal was taken from the court’s
judgment of January 6, 2015, and he has not amended
the appeal to include the court’s July 6, 2015 denial of
his postjudgment motion. As a result, we decline to
review this claim. See Jewett v. Jewett, 265 Conn. 669,
673 n.4, 830 A.2d 193 (2003); Brown v. Brown, 190 Conn.
345, 350–51, 460 A.2d 1287 (1983); see also Practice
Book § 61-9.
The plaintiff’s next claim of error is premised on his
assumption that the court based its decision that the
money he provided for the defendant’s surgery consti-
tuted a gift in contemplation of marriage. He further
contends that this was improper as a result of the defen-
dant’s fraudulent conduct. The flaw in this reasoning
is that the trial court did not address the issue of a gift
made in contemplation of marriage, and never used
those words in its decision. As the plaintiff’s claim is
based on a faulty interpretation of the court’s memoran-
dum of decision, we need not address it further. See
Moasser v. Becker, 107 Conn. App. 130, 142, 946 A.2d
230 (2008) (mischaracterization of trial proceedings
prevents appellate review); Crotty v. Naugatuck, 25
Conn. App. 599, 603 n.5, 595 A.2d 928 (1991) (claim
based on mischaracterization of trial court’s memoran-
dum of decision has no merit).
The plaintiff next claims that the court did not act
reasonably and abused its discretion in finding that he
made a gift to the defendant for her back surgery. To
the extent that this claim is made with respect to the
court’s denial of his postjudgment motion to open and
reargue, we already have explained that we will not
review claims regarding that motion because he failed
to amend his appeal to challenge that ruling. To the
extent that the plaintiff has challenged the court’s deter-
mination that the money for the surgery constituted
gifts, we conclude such a challenge is without merit.
Our Supreme Court has stated that the ‘‘burden of
proving the essential elements of such a valid gift rests
upon the party claiming the gift.’’ Bergen v. Bergen, 177
Conn. 53, 56, 411 A.2d 22 (1979). ‘‘A gift is the transfer
of property without consideration. . . . To make a
valid gift inter vivos, the donor must part with control
of the property which is the subject of the gift with an
intent that title shall pass immediately and irrevocably
to the donee.’’ (Internal quotation marks omitted.) In
re Probate Appeal of Mikoshi, 124 Conn. App. 536, 540,
5 A.3d 569 (2010); see also Wasniewski v. Quick &
Reilly, Inc., 292 Conn. 98, 103–104, 971 A.2d 8 (2009).
We note that it is the sole province of the trial court,
as the trier of fact, to determine the credibility of the
witnesses. Wasniewski v. Quick & Reilly, Inc., supra,
292 Conn. 103. The court’s determination that the defen-
dant’s witnesses were credible is beyond the scope of
this court’s review. Furthermore, we ‘‘give great defer-
ence to the trial court’s factual determination of
whether a gift has been made and will uphold the court’s
finding unless it is clearly erroneous. . . . [A] finding
[of fact] is clearly erroneous when there is no evidence
in the record to support it . . . or when although there
is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm convic-
tion that a mistake has been committed.’’ (Citations
omitted; internal quotation marks omitted.) Id. As there
was evidence before the court to support its finding
that the money paid to Yale-New Haven Hospital and
Yale Medical Group on behalf of the defendant for her
back surgery constituted a gift, and this court is not
left with a firm and definite conviction that a mistake
was committed, we cannot say that its finding was
clearly erroneous. Accordingly, this claim must fail.2
The judgment is affirmed.
1
The trial court denied this motion on July 6, 2015, stating that ‘‘it was
not timely and it raised issues already addressed by the court.’’
2
With respect to the other claims of error listed in the plaintiff’s statement
of issues, or mentioned briefly in his appellate brief, we decline to review
them because they are not briefed adequately. See Carmichael v. Stonkus,
133 Conn. App. 302, 307, 34 A.3d 1026, cert. denied, 304 Conn. 911, 39 A.3d
1211 (2012).