JOAN FUNARO v. BARBARA BAISLEY, TRUSTEE, ET AL., 57 Conn. App. 636

Opinion DALY, J. The named defendant, Barbara Baisley, appeals from the judgment of the trial court granting specific performance of an option to purchase real estate. The defendant claims that the court improperly (1) misconstrued General Statutes § 47-33a and (2) found that the plaintiff, Joan Funaro, was not required to perform fully the terms of the option agreement, specifically, the tender of a promissory note and mortgage deed. We affirm the judgment of the trial court. The following factual situation does not appear to be in dispute.

On August 25, 1975, the plaintiff purchased from her mother-in-law, Agnes Funaro, a one-half interest in real property located at 617-619 Main Street (property) in East Haven for $24,000. On that same day, Agnes Funaro gave the plaintiff an option to purchase the remaining one-half interest in the property for $24,000, for the consideration of “one dollar and other good and valuable consideration.” The purchase price was to be paid in 120 equal monthly installments secured by a promissory note and a mortgage on the entire property.

The option provided that it was to be exercised by the plaintiff, or her heirs and assigns, by giving notice to the personal representative of the estate of Agnes Funaro within thirty days of the appointment of the representative. On February 4,1991, Agnes Funaro created the Agnes E. Funaro Irrevocable Trust (trust) and conveyed her remaining one-half interest in the property to her daughters, trustees Barbara Baisley and Louise Avallon, reserving a life use in the property for herself. On April 1, 1995, Agnes Funaro died and no probate estate was instituted.

Thereafter, on April 24, 1995, the plaintiff notified the trustees of her intention to exercise the option. Avallon agreed to convey the interest the trust has in the property, but the defendant refused. This underlying action and the defendant’s appeal ensued. I The defendant claims first that the trial court improperly misconstrued § 47-33a. She claims that since no date was specified for exercising the option, the plaintiff was required to exercise it within eighteen months of its execution, i.e., February 25, 1977, pursuant to § 47-33a (a).

We disagree. “ ‘Statutory construction is a question of law and therefore our review is plenary.’ ” Jupiter Realty Co. v. Board of Tax Review, 242 Conn. 363, 367, 698 A.2d 312 (1997). “If the language of a statute is plain and unambiguous, courts need look no further than the words used because courts assume that the language expresses legislative intent. Office of Consumer Counsel v. Dept. of Public Utility Control, 234 Conn. 624, 646, 662 A.2d 1251 (1995).” Candlewood Landing Condominium Assn., Inc. v. New Milford, 44 Conn. App. 107, 110, 686 A.2d 1007 (1997); see also 1 B. Holden & J.

Daly, Connecticut Evidence (2d Ed. 1988) § 50, p. 227. “ ‘When a statute does not define a term, it is appropriate to look to the common understanding expressed in the law and in dictionaries.’ ” Beloff v. Progressive Casualty Ins. Co., 203 Conn. 45, 59, 523 A.2d 477 (1987). General Statutes § 47-33a (

a) provides in relevant part: “No interest in real property existing . . . 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 commenced within the period to enforce the agreement and notice of lis pendens is filed as directed by

section 52-325.” “Date” is defined as “the time at which an event occurs” and “a statement of the time of execution or making . . . .” Merriam-Webster’s Collegiate Dictionary (10th Ed. 1993). Here, the time at which the operative event occurred was the date of the death of Agnes Funaro, April 1, 1995. The defendant appears to construe § 47-33a (

a) as a statute of limitations under which the plaintiffs option to purchase did not “survive” to the date the plaintiff brought her action for specific performance. We disagree with this argument and instead agree with the trial court that § 47-33a (

a) had no applicability to the option in the plaintiffs purchase agreement until April 24, 1995, when she exercised her option to purchase within thirty days of the death of Agnes Funaro. We agree also with the court’s well reasoned memorandum of decision rejecting the defendant’s reasoning that only if Agnes Funaro died within eighteen months of the date of the granting of the option, would the option be valid; this clearly does not embody the intent of the parties. While a specific date was not provided in the option to purchase agreement, a specific event was provided, i.e., Agnes Funaro’s death.

It becomes clear that this eighteen month “limitation” promulgated by the defendant obviously was not the intent of the parties because the option provided that it could be exercised not only by the plaintiff, but also her heirs a,nd assigns. II The defendant claims also that the court improperly found that the plaintiff was not required to perform fully the terms of the option agreement. She claims that the court improperly failed to require the tender of a promissory note and mortgage deed by the plaintiff to the representatives of the estate within thirty days of election.

We disagree. “[W]here the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. . . . On appeal, we must give the evidence the most favorable construction in support of the judgment to which it is entitled.” (Citation omitted; internal quotation marks omitted.) Owens v. New Britain General Hospital, 32 Conn. App. 56, 71, 627 A.2d 1373 (1993), aff'd, 229 Conn. 592, 643 A.2d 233 (1994).

The defendant claims that the tender of the note and mortgage by the plaintiff is a condition precedent to the performance of the option agreement. The plaintiff argues, conversely, that the defendant’s refusal to transfer was an anticipatory breach and so the plaintiff was excused from further performance. “A condition precedent is a fact or event which the parties intend must exist or take place before there is a right to performance. ... A condition is distinguished from a promise in that it creates no right or duty in and of itself but is merely a limiting or modifying factor. ...

If the condition is not fulfilled, the right to enforce the contract does not come into existence.” (Internal quotation marks omitted.) Sicaras v. Hartford, 44 Conn. App. 771, 780, 692 A.2d 1290, cert. denied, 241 Conn. 916, 696 A.2d 340 (1997). “An anticipatory breach of contract occurs when the breaching party repudiates his duty before the time for performance has arrived. ...

Its effect is to allow the nonbreaching party to discharge his remaining duties of performance, and to initiate an action without having to await the time for performance.” (Internal quotation marks omitted.) Thames River Recycling, Inc. v. Gallo, 50 Conn. App. 767, 791, 720 A.2d 242 (1998). Here, no estate ever was opened because Agnes Funaro had no assets at the time of her death, and, indeed, the trust was the owner of the property, not the estate.

The plaintiff, through her attorney, notified the trustees, who held legal title to the property, of her willingness to exercise her option, but the option was disavowed, as the defendant refused to transfer the property. The court excused the plaintiff from “performing futile acts,” specifically, from petitioning the Probate Court to open an estate and to appoint a representative, as required by the terms of the option agreement.

We agree with the well supported and reasoned conclusion of the trial court that “to satisfy her obligations under the option, the plaintiff was required to notify the owners of the property of her intention to exercise the option and her willingness and ability to provide the necessary documents.

The formal notification to the trustees, given through counsel within thirty days of Agnes Funaro’s death, of her intention to exercise the option and to execute the necessary promissory note and mortgage was sufficient compliance with the option.” (Emphasis added.) We conclude that the plaintiffs option in this case was enforceable. We cannot find that the trial court’s conclusion was clearly erroneous. The judgment is affirmed. In this opinion FOTI, J., concurred. Louise Avallon, the other defendant in this action, is not, a party in this appeal. Avallon and Baisley are trustees of the Agnes E.

Funaro Irrevocable Trust. We refer in this opinion to Baisley as the defendant.