Funaro v. Baisley

LANDAU, J.,

dissenting. Although I agree that General Statutes § 47433a1 does not bar the plaintiff from exer*642cising her option to purchase the subject property (option), I respectfully dissent from the majority’s opinion because the plaintiff has not complied with the terms of paragraph three of the option. Indeed, the plaintiff has not yet been able to exercise her option because no representative of Agnes Funaro’s estate has been appointed by the Probate Court as the plaintiff and Agnes Funaro had agreed.

To resolve this appeal, certain terms of the option must be examined in their entirety. Paragraph three provides: “Notice of election to purchase hereunder by [the plaintiff], or her heirs or assigns, shall be in writing and shall be given to the representative of my estate on or before thirty (SO) days from the date that the representative of my estate is appointed by the Probate Court for the District having jurisdiction of my estate.” (Emphasis added.) Paragraph four of the option provides: “If [the plaintiff] and/or her heirs or assigns elects to exercise this option, the payment of the $24,000.00 shall be made . . . and shall be secured by the promissory note of [the plaintiff], or her heirs and assigns, which promissory note shall be secured by a mortgage .... The note and mortgage shall be delivered to the personal representative of my estate within thirty (30) days of the election . . . .” (Emphasis added.)

“Where . . . there is clear and definitive contract language, the scope and meaning of that language is not a question of fact but a question of law. ... In such a situation our scope of review is plenary, and is not limited by the clearly erroneous standard.” (Citations omitted; internal quotation marks omitted.) De Leonardis v. Subway Sandwich Shops, Inc., 35 Conn. App. 353, 357, 646 A.2d 230, cert. denied, 231 Conn. 925, 648 A.2d 162 (1994).

*643“The time fixed by the parties for performance is, at law, deemed of the essence of the contract. Janulewycz v. Quagliano, 88 Conn. 60, 63, 89 A. 897 [ Brandford Novelty Co. v. Technomatic, Inc., 142 Conn. 166, 170, 112 A.2d 214 (1955). In rejecting the defendant’s argument that the option is unenforceable pursuant to § 47-33a, the trial court gave a well reasoned explanation why the option provided the time by which the plaintiff had to exercise her option, to wit, “The plaintiff could not exercise her option until Agnes Funaro died. . . . The plaintiff had purchased 50 percent of the property for $24,000 on the day the option was executed. Agnes Funaro wished to occupy her portion of the property until her death, yet was willing to sell the remaining 50 percent of the property to the plaintiff at the same figure of $24,000, but not until she died. While a specific date for the exercise of the option was not provided in the option, a specific event, for which the date could not be provided, was set forth in the option. The plaintiff had no control over that date, but it was a certainty to occur at some time in the future, and obviously the parties realized that the event might not occur for a long time because the option provided that it could be exercised by the plaintiff or her heirs and assigns.”

The trial court then, however, decided that the appointment of a representative of Agnes Funaro’s estate would be futile. This was improper. “The court will not torture words to impart ambiguity where ordinary meaning leaves no room for ambiguity.” (Internal quotation marks omitted.) Sturman v. Socha, 191 Conn. 1, 11-12, 463 A.2d 527 (1983). “A contract is to be construed as a whole and all relevant provisions will be considered together. ... A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity and words do not become ambiguous simply because lawyers or laymen contend for different meanings.” (Citations omitted; internal *644quotation marks omitted.) Scinto v. Sosin, 51 Conn. App. 222, 239, 721 A.2d 552 (1998), cert. denied, 247 Conn. 963, 724 A.2d 1125 (1999). “ ‘The question before us is not what the parties meant to bind themselves to do, nor what they supposed they had bound themselves to do, nor even what they ought to have bound themselves to do; it is simply what they have, as manifested by their written words, bound themselves to do.’ ” Lakitsch v. Brand, 99 Conn. 388, 394, 121 A. 865 (1923).

With respect to the case before us, if no representative is appointed, the plaintiff cannot determine the thirty days in which to exercise her option. Paragraph three does not say that the option must be exercised within thirty days of Agnes Funaro’s death, which is essentially what the trial court has concluded. Trial courts may not impart contractual provisions that have not been agreed upon by the parties.

According to paragraph four, a representative of the estate must also be appointed to receive the plaintiffs mortgage and note. Presumably, the proceeds of the mortgage and note would flow to the estate for disbursement to the trust. Furthermore, a representative of the estate will be bound by the terms of the option and must accept the plaintiffs option if she exercises it in a timely fashion. The appointment of a representative of the estate who is bound to accept the plaintiffs timely exercise of her option will also avoid the situation that gave rise to this dispute.

For the foregoing reasons, I respectfully dissent.

General Statutes § 47-33a (a) provides: “No interest in real property existing under an executory agreement for the sale of real property or for the sale of an interest in real property or under an option to purchase real property shall survive longer than one year after the date provided in the agreement for the performance of it or, if the date is not. so provided, longer than eighteen months after the date on which the agreement was executed, unless the interest is extended as provided herein or unless action is com*642menced within the period to enforce the agreement and notice of lis pendens is filed as directed by section 52-325.”