COSGROVE, JUDGE.
The plaintiff Billy Leo LLC entered into a lease option agreement with the defendant Gregory Michaelidis. In a single-count complaint the plaintiff alleged that it exercised its option rights under the terms of the lease and despite its demand for performance the defendant refused to convey the premises located at 109 Hartford Road, Brooklyn, Connecticut. The plaintiff claims damages and that it is entitled to specific performance. The defendant filed a special defense claiming that the plaintiff's claim is barred by the statute of frauds.
The case was originally set down for pretrial on August 15, 2003 and was continued at the plaintiff's request. The pretrial was rescheduled for October 23, 2003 before Scholl, J. On October 28, 2003 the defendant filed a motion in limine seeking to restrict the evidence to be offered by the plaintiff at trial. On October 31, 2003, four days before trial, the plaintiff filed a motion to amend his complaint. The amended complaint added a second count alleging that the defendant was estopped from refusing to perform with regard to the option to purchase. "[P]leadings have their place in our system of jurisprudence. While they are not held to the strict and artificial standard that once prevailed, we still cling to the belief, even in these iconoclastic days, that no orderly administration of justice is possible without them . . . The purpose of a complaint or counterclaim is to limit the issues at trial, and such pleadings are calculated to prevent surprise . . . It is fundamental in our law that the right of a [party] to recover is limited to the allegations in his [pleading] . . . Facts found but not averred cannot be made the basis for a recovery . . . Thus, it is clear that [t]he court is not permitted to decide issues outside of those raised in the pleadings." (Internal quotation marks omitted.) Breiter v. Bretier, 80 Conn. App. 332, 335 (2003). The defendant objected to the amendment of the complaint on multiple grounds. The court denied the motion to amend and a trial was conducted on the initial complaint on November 4, 2003.
The issue presented by the plaintiff's complaint is whether the CT Page 13921 plaintiff has exercised its rights under a lease with an option to purchase agreement such that it is entitled to specific performance of the option to purchase and damages.
The court finds that Vasil Therecka and his brother-in-law, Leo Papa, are the members of the plaintiff LLC. The plaintiff and the defendant entered into a two-part transaction on September 1, 1999. The plaintiff contracted to and did purchase from the defendant the business and assets known as Brooklyn Pizza then operating in a building owned by the defendant at 109 Hartford Road, Brooklyn, Connecticut. On that same date the plaintiff entered into a lease with the defendant for the real property at 109 Hartford Road, Brooklyn, Connecticut. In the lease the defendant landlord granted the plaintiff tenant an option to purchase the real estate. The option provided:
30. Option to Buy. The tenant shall have the option to buy the demised premises within two years from the date of this lease for a purchase price of One Hundred Seventy-Five ($175,000.00) Dollars. The Tenant must notify the Landlord of its intention to do so in writing by no later than April 1, 2001 and shall close on the same by June 1, 2001, unless agreed to in writing by the parties hereto.
Vasil Therecka of Billy Leo LLC testified that he ran the Brooklyn Pizza business. Mr. Therecka met with the defendant Gregory Michaelidis on a regular basis at the business. Mr. Therecka never, at any time, notified the defendant landlord in writing, in accordance with paragraph 30 of the lease, that the plaintiff intended to exercise its option to purchase the premises. Mr. Therecka, acting on behalf of the plaintiff, orally indicated that it would be exercising the option to purchase the real estate. He claims these conversations took place in January of 2001 at the pizza shop and at the home of the defendant. Mr. Michaelidis disputes that the conversations regarding the option took place. Even if they had taken place they would not be an effective exercise of the option rights created by the lease.
During the first two years of the lease, Mr. Therecka claims that he and the defendant discussed additional potential deals. They discussed whether or not the defendant would provide financing for the purchase of 109 Hartford Road and if the "deal" would also include the purchase of some additional property. There were also discussions regarding whether part of the price would be paid in cash and not be disclosed as a part of the sale price. The conversations included additional proposals regarding the purchase of other buildings and financing. Finally these conversations touched on whether the plaintiff would waive a non-competition clause that was a part of the September 1, 1999 CT Page 13922 transactions. All of these discussions would have added to the terms of the express rights described in paragraph 30 of the lease. Ultimately no agreements were reached orally, or in writing, modifying the express written terms of the option rights contained in the lease. There was no meeting of the minds.
The plaintiff offered proof that it had an approval for a loan of $105,000.00 as of February 18, 2002. The plaintiff also offered proof that he had made cash deposits to the Savings Bank of Manchester. All of the deposits occur after June 1, 2001 and the deposit slips do not demonstrate that the plaintiff had sufficient cash on June 1, 2001 to close the transaction. The court further notes that the loan commitment is not for the full option price and that the loan commitment was not secured until after the required closing date.
"[C]ontracting parties are free to impose conditions upon contractual liability." (Internal quotation marks omitted.) John T. Brady Co. v. Stamford, 220 Conn. 432, 449-50, 599 A.2d 370 (1991). "Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms." (Internal quotation marks omitted.) Tomlinson v. Board of Education, 226 Conn. 704, 722, 629 A.2d 333 (1993). See also Barnard v. Barnard, 214 Conn. 99, 110, 570 A.2d 690 (1990). "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 . . . Whether a provision in a contract is a condition the nonfulfilment of which excuses performance depends upon the intent of the parties, to be ascertained from a fair and reasonable construction of the language used in the light of all the surrounding circumstances when they executed the contract." (Citations omitted.) Lach v. Cahill, 138 Conn. 418, 421, 85 A.2d 481 (1951). See also FW Welding Service, Inc. v. ADL Contracting Corp., 217 Conn. 507, 517, 587 A.2d 92 (1991); Christophersen v. Blount, 216 Conn. 509, 512, 582 A.2d 460 (1990); Maloney v. PCRE, LLC, 68 Conn. App. 727, 735, 793 A.2d 1118 (2002).
The plaintiff's complaint alleges specifically that "in January of 2001 the Plaintiff exercised its option to purchase the premises." The power of acceptance created by the written agreement of the parties required by its terms that the plaintiff's exercise of the option to purchase be in writing, that it be done prior to April 1, 2001 and that the closing take place by June 1, 2001. The conditions precedent to the plaintiff having the right to require the defendant to perform on the terms of the option CT Page 13923 was that it was to give notice of its intent to exercise the option and to be ready, willing, and able to perform its obligations under the option on or before June 1, 2001. The evidence shows that the plaintiff has not exercised its power of acceptance in accordance with the agreement that created the power. There was no notice in writing to the defendant prior to April 1, 2001. There was no evidence that the plaintiff was ready, willing or able to complete the transaction as of June 1, 2001.
Judgment shall enter in favor of the defendant Gregory Michaelidis plus costs.
COSGROVE, JUDGE. CT Page 13924