Wasniewski v. Quick and Reilly, Inc.

• Decision Date: 09 June 2009
• Docket Number: No. 18160.,18160.
• Citation: 971 A.2d 8,292 Conn. 98
• Parties: James W. WASNIEWSKI v. QUICK AND REILLY, INC.
• Court: Connecticut Supreme Court

971 A.2d 8

292 Conn. 98

James W. WASNIEWSKI v. QUICK AND REILLY, INC.

No. 18160.

Supreme Court of Connecticut.

Argued January 14, 2009.

Decided June 9, 2009.

Thomas J. Sansone, New Haven, for the appellant (defendant).

Frank J. Liberty, for the appellee (plaintiff).

ROGERS, C.J., and NORCOTT, PALMER, VERTEFEUILLE and ZARELLA, Js.

ROGERS, C.J.

The defendant, Quick and Reilly, Inc., appeals from the judgment of the Appellate Court affirming the judgment of the trial court in favor of the plaintiff, James W. Wasniewski. The plaintiff initiated this breach of contract action to recover funds that his father had deposited without the plaintiff's knowledge in an account bearing the plaintiff's name at the defendant brokerage firm. The certified issues in this appeal are: (1) whether "the Appellate Court [majority] properly conclude[d] that valid delivery of an inter vivos gift was effected by the plaintiff's father to the plaintiff"; and (2) whether "the Appellate Court [majority] properly determine[d] that the plaintiff was the intended third party beneficiary of [an] alleged contract entered into between the plaintiff's father and the defendant...." Wasniewski v. Quick & Reilly, Inc., 287 Conn. 913, 914, 950 A.2d 1291 (2008). We answer both of the certified questions in the negative and, accordingly, reverse the judgment of the Appellate Court.

The relevant facts, as found by the trial court, are set forth in the majority opinion of the Appellate Court. "The plaintiff's father, John Wasniewski, opened a brokerage account with the defendant on November 14, 1989, in the plaintiff's name and social security number. The account was funded with the proceeds of $30,000 worth of bonds issued by the Connecticut housing finance authority. The account earned $2115 per year in interest. The total value of the account, including accrued interest, was found to be $52,085. The account was closed on January 5, 2001, when the funds were withdrawn by someone other than the plaintiff and transferred to a joint account in the name of the plaintiff's father and the plaintiff's brother. The plaintiff was unaware of the account during the entire period that it was in existence. The plaintiff became aware of the account when his father mailed him a tax form 1099 for the 2001 calendar year. All statements for the brokerage account had been sent to the address of the plaintiff's father.

"The plaintiff commenced a civil action against the defendant by complaint filed August 18, 2004. The plaintiff set out four causes of action, three of which were dismissed by the court after hearing argument on the defendant's motion for summary judgment filed September 2, 2005. The plaintiff's breach of contract claim was the only claim remaining before the court. In a memorandum of decision filed June 27, 2006, the court, Hon. Robert C. Leuba, judge trial referee, [found] that the account was owned by the plaintiff from the time it was created and that he was entitled to the interest and the principal pursuant to the contract implicit in the relationship between a broker and the owner of an account with that broker. The court further [found] that the defendant breached this contract when it transferred the funds to someone other than the plaintiff. The plaintiff was awarded $52,085 plus costs.

"The defendant filed a motion for reargument on July 11, 2006, which was denied by the court. The defendant filed its appeal [to the Appellate Court on] September 21, 2006. The defendant then filed a motion for articulation on September 29, 2006, which was granted. The court filed its articulation on October 26, 2006." Wasniewski v. Quick & Reilly, Inc., 105 Conn.App. 379, 380-81, 940 A.2d 811 (2008).

The Appellate Court majority concluded that the trial court's findings were not clearly erroneous. Citing § 281 of volume 9 of Corpus Juris Secundum (1996),¹ and United States v. $79,000 in Account Number 2168050/ 674990, Docket No. 96 Civ. 3493, 1996 U.S. Dist. Lexis 16536, *3 (S.D.N.Y. November 7, 1996), the Appellate Court majority concluded that the weight of evidence supported the trial court's finding that once the funds were placed in the brokerage account in the plaintiff's name and under his social security number, the plaintiff obtained title and control over those funds. Wasniewski v. Quick & Reilly, Inc., supra, 105 Conn.App. at 383, 940 A.2d 811. The majority further found no error in the trial court's finding that the defendant had breached its contractual obligations to the plaintiff. Id., at 384-85, 940 A.2d 811.

In his dissent, Judge McLachlan concluded that the trial court improperly had found that the plaintiff held title to the funds in the brokerage account because the record contained no evidence that the funds were delivered, actually or constructively, to the plaintiff. Id., at 386-88, 940 A.2d 811. The dissent concluded that, in the absence of such evidence, the trial court could not find a valid inter vivos gift of the funds from the plaintiff's father to the plaintiff. Id. The dissent further concluded that the evidence did not support the trial court's conclusion that the plaintiff held a contractual right to receive the funds in the brokerage account. Id., at 388-91, 940 A.2d 811. We granted the defendant's petition for certification to appeal from the judgment of the Appellate Court. We address each of the certified issues in turn.

I

The first certified issue is whether the Appellate Court properly concluded that there was sufficient evidence for the trial court to find that the plaintiff's father had effected a valid inter vivos gift of the funds in the brokerage account to the plaintiff. Specifically, we must decide whether the trial court properly found that the plaintiff's father had executed a delivery of the funds, a requisite element of a valid inter vivos gift. We conclude that the Appellate Court improperly determined that the trial court's finding was not clearly erroneous.

We begin by setting forth the appropriate standard for our review of the first certified issue. We give great deference 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. Dalia v. Lawrence, 226 Conn. 51, 71, 627 A.2d 392 (1993); see also Kriedel v. Krampitz, 137 Conn. 532, 534, 79 A.2d 181 (1951). "[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 conviction that a mistake has been committed." (Internal quotation marks omitted.) National Grange Mutual Ins. Co. v. Santaniello, 290 Conn. 81, 90, 961 A.2d 387 (2009); Dalia v. Lawrence, supra, at 71, 627 A.2d 392. "The credibility of the witnesses and the weight to be accorded to their testimony is for the trier of fact.... This court does not try issues of fact or pass upon the credibility of witnesses." (Citations omitted; internal quotation marks omitted.) Dalia v. Lawrence, supra, at 71, 627 A.2d 392; see also Bristol v. Tilcon Minerals, Inc., 284 Conn. 55, 65, 931 A.2d 237 (2007). Even under this deferential standard, we conclude that the findings of the trial court must yield.

"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." (Citation omitted; internal quotation marks omitted.) Kriedel v. Krampitz, supra, 137 Conn. at 534, 79 A.2d 181; Parley v. Parley, 72 Conn.App. 742, 749, 807 A.2d 982 (2002); see also Burbank v. Stevens, 104 Conn. 17, 22, 131 A. 742 (1926). In other words, a valid inter vivos gift of personal property requires both delivery of possession of the property to the donee and an intent on the part of the donor that title shall pass immediately to the donee. Bergen v. Bergen, 177 Conn. 53, 56-57, 411 A.2d 22 (1979); Kukanskis v. Jasut, 169 Conn. 29, 34, 362 A.2d 898 (1975); Hartford-Connecticut Trust Co. v. Slater, 114 Conn. 603, 613, 159 A. 578 (1932); Main's Appeal from Probate, 73 Conn. 638, 640, 48 A. 965 (1901); Guinan's Appeal from Probate, 70 Conn. 342, 347, 39 A. 482 (1898); Fontaine v. Colt's Mfg. Co., 74 Conn.App. 730, 733, 814 A.2d 433 (2003). The burden of proving intent and delivery rests upon the party claiming the gift. Bergen v. Bergen, supra, at 56, 411 A.2d 22; Kriedel v. Krampitz, supra, at 534, 79 A.2d 181; Parley v. Parley, supra, at 749, 807 A.2d 982.

"Delivery of possession is the foundation of a transfer; without delivery there can be no transfer." City National Bank v. Morrissey, 97 Conn. 480, 483, 117 A. 493 (1922). In order to constitute a delivery, not only must the donor part with possession of the property, but he also must relinquish control of it. See Kriedel v. Krampitz, supra, 137 Conn. at 534, 79 A.2d 181; Burbank v. Stevens, supra, 104 Conn. at 22, 131 A. 742 (delivery to third person sufficient if donor parts with control, reserves no right to recall and intends thereby final disposition of property); Candee v. Connecticut Savings Bank, 81 Conn. 372, 375, 71 A. 551 (1908); Parley v. Parley, supra, 72 Conn.App. at 749, 807 A.2d 982; see also Costello v. Costello, 136 Conn. 611, 615, 73 A.2d 333 (1950) (to constitute delivery of deed grantor must part with legal possession of deed and with all right to retain it; present and future dominion over deed must pass from grantor); Grilley v. Atkins, 78 Conn. 380, 386-87, 62 A. 337 (1905) (same). Delivery may be actual or constructive, but does not require that the donor effect delivery in any particular form or mode. See Hebrew University Assn. v. Nye, 148 Conn. 223, 232, 169 A.2d 641 (1961); Fontaine v. Colt's Mfg. Co., supra, 74 Conn.App. at 733, 814 A.2d 433.

In the present case, the parties agree that the plaintiff...