Angiolillo v. Nevard

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The syllabus and procedural history accompanying an opinion that appear in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced or distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ************************************************  Angiolillo v. Nevard GLENN ANGIOLILLO ET AL. v. BARRETT NEVARD ET AL. (AC 47464) Alvord, Moll and Seeley, Js.* Syllabus The plaintiffs appealed from the trial court’s judgment for the defendants on the plaintiffs’ complaint for, inter alia, breach of contract, and in part on the defendants’ counterclaim seeking a declaratory judgment, in connection with two real estate sales contracts for two of the defendants’ properties. The plaintiffs claimed, inter alia, that the court improperly interpreted various provisions of the parties’ contracts. Held: The trial court properly interpreted the contracts to set January 16, 2019, as the extended closing deadline following the defendant B’s extension of the original closing date, as the contracts, in clear and unambiguous terms, established January 16, 2019, as the extended closing deadline, and this court rejected the plaintiffs’ proposition that the parties had an additional twenty-one days following that date to close on the properties. This court concluded that, although the trial court misconstrued the con- tracts to provide that, with respect to the closing, time was of the essence, that error did not warrant reversal of the court’s judgment against the plaintiffs as they alleged, as the error was not integral to its adjudication of the plaintiffs’ claims or the defendants’ counterclaim. The plaintiffs’ claim that there was no contractual basis to determine that they made an implied election to terminate the contracts failed, as the con- tracts did not designate any particular method by which the plaintiffs must make an election to accept or reject such title as B could convey, and there was nothing in the contracts that prohibited a determination that, through their conduct, the plaintiffs made an implicit election to cancel the contracts. There was an adequate factual basis supporting the trial court’s determination that the plaintiffs made an implied election of cancellation of the contracts, as it was reasonable for B to have concluded that the plaintiffs’ conduct in commencing the present action indicated an unwillingness to proceed with the purchase of both properties in light of a title defect with respect to one of the properties, and the passage of the extended closing deadline also sup- ported that determination. Argued December 9, 2025—officially released September 29, 2026 * The listing of judges reflects their seniority status on this court as of the date of oral argument.  Angiolillo v. Nevard Procedural History Action to recover damages for, inter alia, breach of contract, and for other relief, brought to the Superior Court in the judicial district of Stamford-Norwalk, where the defendants filed a counterclaim; thereafter, the case was tried to the court, Hon. Kenneth B. Povodator, judge trial referee; judgment for the defendants on the amended complaint and in part on the counterclaim, from which the plaintiffs appealed to this court. Affirmed. Karen L. Dowd, with whom was Kenneth J. Bartschi, for the appellants (plaintiffs). Edward N. Lerner, for the appellees (defendant). Opinion MOLL, J. The plaintiffs, Glenn Angiolillo (Glenn) and Gian Angiolillo (Gian), appeal from the judgment of the trial court rendered in favor of the defendants, Barrett Nevard, the Leila B. Nevard Living Trust, and Susan J. Nevard,1 with respect to the plaintiffs’ amended com- plaint and in part as to the defendants’ counterclaim. On appeal, the plaintiffs claim that the court improperly (1) interpreted the real estate sales contracts at issue and (2) determined that Barrett properly treated their conduct as demonstrating an “implied” contractual election to terminate the contracts. We affirm the judgment of the trial court. 1 The summons filed in the present action lists two defendants: (1) Barrett Nevard; and (2) “Susan J. & Leila B. Nevard Living Trust.” The plaintiffs’ original and amended complaints, however, reference three defendants: (1) Barrett Nevard; (2) the Leila B. Nevard Living Trust, with Barrett Nevard acting as trustee or cotrustee; and (3) Susan J. Nevard. The parties’ respective pleadings and appellate briefs further reflect an apparent understanding that there are three defendants in the present action, with Susan J. Nevard being distinct from the Leila B. Nevard Living Trust. This discrepancy is not germane to our analy- sis of the plaintiffs’ claims on appeal. In the interest of simplicity, we refer in this opinion to (1) Barrett Nevard, the Leila B. Nevard Living Trust, and Susan J. Nevard collectively as the defendants and (2) the individual parties by first name.  Angiolillo v. Nevard The following undisputed facts, as found by the trial court or as gleaned from the record, and procedural history are relevant to our resolution of this appeal. In September 2018, the plaintiffs and Barrett executed two real estate sales contracts (contracts), with one contract governing the sale of 19 Henry Street in Greenwich (19 Henry Street contract) and the other contract govern- ing the sale of 23 Henry Street in Greenwich (23 Henry Street contract).2 Before executing the contracts, Barrett represented to the plaintiffs that both properties were three-family dwellings. The plaintiffs made a $132,000 deposit in accordance with the contracts. The contracts, which are substantially identical in terms, contain the following relevant provisions. Para- graph 4 of the contracts provides in relevant part that the respective property deed “shall be delivered . . . on the 17th day of December, 2018, at 2:00 P.M. or sooner by mutual agreement of the parties . . . .” Moreover, the contracts provide that the closing on one property is con- tingent on a simultaneous closing on the other property. Paragraph 6 (a) of the contracts provides in relevant part: “If, upon the date for the delivery of the [respective property] deed . . . [Barrett] shall be unable to deliver or cause to be delivered a deed or deeds conveying a good and marketable title to the [respective property], subject only to the items set forth in Schedule A3 and [p]aragraph [6 (e)]4 . . . then [Barrett] shall be allowed a reasonable 2 The court found that “[t]he parties” entered into the contracts. The contracts, which were admitted in full into the record, identify Barrett as the seller of the properties; however, the contracts further reflect that Susan J. Nevard and the Leila B. Nevard Living Trust had interests in one or both properties in September 2018, and the contracts contemplate certain deeds being “duly executed and recorded on the Greenwich [l]and [r]ecords thereby establishing 100 [percent] owner- ship in Barrett . . . .” In the interest of simplicity, we refer to Barrett as the seller of the properties. 3 Schedule A appended to each contract sets forth a description of the respective property and provides that said property is to be conveyed subject to, inter alia, “[a]ny and all provisions of any ordinance, munici- pal regulation or public or private law.” 4 Paragraph 6 (e) of the contracts provides that the respective prop- erty will be conveyed subject to, inter alia, governmental restrictions,  Angiolillo v. Nevard postponement of closing not to exceed thirty (30) cal- endar days, or such shorter time as may be within the term of the [plaintiffs’] mortgage commitment, within which to perfect title. If at the end of said time [Bar- rett] is still unable to deliver or cause to be delivered a deed or deeds conveying a good and marketable title to [the respective property], subject as aforesaid, then the [plaintiffs] (i) may elect to accept such title as [Barrett] can convey, without modification of the purchase price, or (ii) may reject such title. Upon such rejection, all sums paid on account hereof, together with any nonrefundable expenses actually incurred by the [plaintiffs] in the aggre- gate not to exceed the cost of an A.L.T.A. Homeowner’s Policy (or the equivalent thereof) based on the amount of the purchase price shall be paid to the [plaintiffs] without interest thereon. Upon receipt of such payment, [the respective contract] shall terminate and the parties . . . shall be released and discharged from all further claims and obligations [t]hereunder. [Barrett] shall be entitled to require [the plaintiffs] to provide reasonable proof of payment of said expenses.” (Footnotes added.) Paragraph 16 of the contracts provides in relevant part: “In no event shall the closing, or any extension thereof, take place later than twenty-one (21) calendar days from the date of closing set forth in [p]aragraph 4 . . . subject to the provisions of [p]aragraphs 6 and 11.5 . . .” (Footnote added.) Paragraph 26 of the contracts provides in relevant part: “[A]ll representations by [Barrett] are made to the best of [Barrett’s] knowledge and belief and without duty of inquiry. [Barrett] shall have an affirmative obligation to notify [the plaintiffs] if any of [the] representations [made in the respective contract] are no longer true. Except in the event of an intentional misrepresentation, limitations, regulations, ordinances, and/or public laws, provided that said property is not in violation of the same at the time of the closing. 5 Paragraph 11 of the contracts concerns risk of loss or damage by fire or other casualty. As the trial court, Hon. Kenneth B. Povodator, judge trial referee, determined, and we agree, the provisions of paragraph 11 are immaterial to the claims adjudicated in the present action.  Angiolillo v. Nevard if [the plaintiffs discover] prior to the closing of title any material representation contained in [the respective contract] . . . to be untrue or inaccurate, the remedy of the parties shall be those available to them in the event of a valid defect in or objection to title, as set forth in paragraph [6 (a)] . . . .” Attached to and incorporated into the contracts is a purchaser’s rider, which provides in relevant part: “[Bar- rett] represents that all certificates of occupancy or other governmental approvals in connection with the current use of the [respective property] as three residential units . . . have been obtained. . . . If, prior to [c]losing, [the plaintiffs learn] that a violation exists, the remedy of the parties shall be those available to them in the event of a defect in title. Notwithstanding the foregoing, [Bar- rett] shall have a good faith obligation to cure any and all violations prior to [c]losing.” On November 2, 2018, the plaintiffs6 emailed Barrett’s real estate attorney, Christopher A. Kristoff, raising a concern as to whether the 23 Henry Street property was approved by the town of Greenwich (town) to be a three- family dwelling and requesting proof of such approval. On November 6, 2018, Attorney Kristoff replied that “the [t]own carrie[d] [the 23 Henry Street property] as a [three-family dwelling] . . . .” On December 4, 2018, Attorney Kristoff emailed Glenn a letter stating that the town’s building department identified the 23 Henry Street property as a two-family dwelling, such that Barrett did “not have ‘all certifi- cates of occupancy or other governmental approvals in connection with the current use of the [p]remises as three residential units’ ” as required under the 23 Henry Street contract. This letter further stated that “[i]t is [Barrett’s] position that this represents a defect in title that cannot be cured under the [t]own’s current [b]uilding [c]ode and [z]oning laws. Now that [the plaintiffs have] 6 The November 2, 2018 email was sent by Glenn with Gian copied on the email. In the interest of simplicity, we treat emails sent to or by Glenn with Gian copied as having been sent to or by the plaintiffs collectively.  Angiolillo v. Nevard this information, unless [the plaintiffs are] prepared to close simultaneously on both [properties] . . . [Barrett] is prepared to return to [the plaintiffs] all sums paid under the [c]ontract[s] . . . .” Additionally, this letter stated that, until the aforementioned issue was resolved, Bar- rett could not confirm a closing that had been scheduled for December 10, 2018, with respect to the 19 Henry Street property.7 On December 7, 2018, the plaintiffs emailed Attorney Kristoff stating that Barrett was obligated to close on the 19 Henry Street property, and, if he refused to close on December 10, 2018, the plaintiffs “intend[ed] to pursue all of their legal remedies . . . .” Additionally, as to the 23 Henry Street property, the plaintiffs stated in relevant part that (1) pursuant to the 23 Henry Street contract, Barrett had a good faith obligation to cure any and all violations prior to closing, (2) Barrett had not informed the plaintiffs as to what steps had been taken to cure the “violation” caused by the 23 Henry Street property not being approved by the town as a three-family dwelling, and (3) Barrett’s failure to cure this “violation” consti- tuted a breach of the 23 Henry Street contract. On December 14, 2018, Attorney Kristoff emailed the plaintiffs an offer to reduce the price of the 23 Henry Street property by $25,000.8 The plaintiffs “apparently rejected” this offer. On December 17, 2018, the original closing date identi- fied in the contracts, Attorney Kristoff emailed a letter to 7 In a December 3, 2018 email to Attorney Kristoff, which was admit- ted in full into the record, the plaintiffs, in accordance with a provision in the 19 Henry Street contract, provided advance notice to Barrett that a closing on the 19 Henry Street property was to be scheduled for December 10, 2018. 8 In the December 14, 2018 email, which was admitted in full into the record, Attorney Kristoff further requested that (1) the $25,000 price reduction be effectuated by way of an amendment to the 23 Henry Street contract, (2) other provisions of the 23 Henry Street contract be amended with respect to “the [three] family and violation issues,” (3) the parties agree to mutual releases “given the threat of lawsuits,” and (4) the parties close on both properties on December 21, 2018.  Angiolillo v. Nevard the plaintiffs, which letter was addressed to Glenn only, (1) maintaining that a title defect existed as to the 23 Henry Street property and (2) exercising Barrett’s right under paragraph 6 (a) of the contracts to “a reasonable postponement of the closing not to exceed thirty (30) calendar days . . . within which to perfect title by seek- ing a variance with the [t]own to convert [the] 23 Henry Street [property] to a [three]-family house.” Attorney Kristoff further represented that, alternatively, “[Bar- rett] is prepared to return to [the plaintiffs] all sums paid under the [c]ontract[s] pursuant to the terms of said [paragraph 6 (a)], should [the plaintiffs] so desire.” On December 19, 2018, Attorney Kristoff emailed a letter to Glenn accompanied by a copy of a zoning viola- tion notice that he had received with respect to the use of the 23 Henry Street property as a three-family dwelling. This letter stated that (1) on the basis of communications with the town’s zoning enforcement officer about apply- ing for a variance to permit the 23 Henry Street property to be utilized as a three-family dwelling, “all indications are that the [t]own would deny that request based upon current [r]egulations,” and (2) Barrett had decided to submit an application seeking the town’s approval to treat the third unit at the 23 Henry Street property as an affordable housing unit under the town’s regulations, and he was “cautiously optimistic” about securing such approval, “thereby allowing [him] to perfect title and move forward with a simultaneous closing o[n] [both properties] within a reasonable time.” Additionally, this letter requested that Glenn inform Attorney Kristoff if he “object[ed] to this approach or prefer[red] [that Bar- rett] . . . return all sums paid under the [c]ontract[s] . . . .” The plaintiffs subsequently rejected this proposal. On December 26, 2018, Glenn emailed Attorney Krist- off requesting a phone call, whereupon he received an automatic response reflecting that Attorney Kristoff was out of the office from December 21, 2018, through January 2, 2019. On January 7, 2019, Attorney Kristoff emailed a letter to Glenn setting forth a “ ‘final offer’ ” to  Angiolillo v. Nevard be effectuated by way of an amendment to the 23 Henry Street contract (January 7, 2019 letter). The January 7, 2019 letter proposed in relevant part that (1) the price for the 23 Henry Street property be reduced by $30,000, (2) the plaintiffs acknowledge that a title defect exists as to the 23 Henry Street property that Barrett can- not cure, (3) the plaintiffs accept title to the 23 Henry Street property with the title defect, and (4) the parties exchange mutual releases. The January 7, 2019 letter further provided that (1) “[n]o agreement exists unless and until the [p]arties have executed and exchanged an amendment to the [23 Henry Street] [c]ontract” and (2) “[i]n the alternative, if these terms are not acceptable, [Barrett] will take the position that the defect in title cannot be cured and will return to [the plaintiffs] all sums paid under the [c]ontract[s] per [p]aragraph [6 (a)].” On January 15, 2019, the plaintiffs commenced the present action. On January 16, 2019, Attorney Kristoff sent a letter to Glenn (January 16, 2019 letter). Attor- ney Kristoff stated that he was interpreting the lack of a response to the January 7, 2019 letter “as a rejection of [the defective] title [to the 23 Henry Street property] per paragraph [6 (a)] of the [c]ontract[s]” and that he was enclosing a check in the amount of $132,000, thereby tendering a return of the plaintiffs’ deposit on both properties. Thus, by way of the January 16, 2019 letter, Barrett withdrew the offer proposed in the January 7, 2019 letter and deemed the contracts to be terminated. In their amended complaint dated July 3, 2023, which was the operative complaint,9 the plaintiffs asserted claims for (1) breach of contract and (2) breach of the implied covenant of good faith and fair dealing.10 In support of their breach of contract claim, the plain- tiffs alleged that (1) the defendants failed, refused, or 9 The plaintiffs filed the amended complaint with leave of the trial court, Hon. Kenneth B. Povodator, judge trial referee. 10 The amended complaint also set forth counts sounding in (1) fraud, (2) so-called “fraud by negligent misrepresentation,” and (3) a viola- tion of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. These counts are not relevant to this appeal.  Angiolillo v. Nevard neglected to convey the title to the 19 Henry Street prop- erty to them notwithstanding that they had informed the defendants that they were ready, willing, and able to consummate the 19 Henry Street contract and to close on December 10, 2018, and (2) the defendants failed to comply with various provisions of the 23 Henry Street contract and made a materially false representation that the 23 Henry Street property was a three-family dwell- ing. In support of their breach of the implied covenant of good faith and fair dealing claim, the plaintiffs alleged that the defendants had acted in bad faith by misleading and misrepresenting the legal use and value of the 23 Henry Street property, “refusing to cure the defects,” and failing to adjust the price of the 23 Henry Street property. The amended complaint also contained a stand- alone count seeking specific performance with respect to both properties.11 On June 5, 2019, the defendants filed an answer denying the plaintiffs’ material allegations or leaving the plaintiffs to their proof.12 Additionally, on June 5, 2019, the defendants filed a two count counterclaim (1) seeking a declaratory judg- ment that the contracts had been terminated and (2) alleging slander of title. On June 14, 2019, the plaintiffs filed an answer denying the defendants’ material allega- tions or leaving the defendants to their proof. 11 In their original complaint, the plaintiffs sought specific performance with respect to the 19 Henry Street property only. In their amended com- plaint, the plaintiffs sought specific performance as to both properties. 12 The defendants also asserted special defenses as to each claim asserted by the plaintiffs. On June 14, 2019, the plaintiffs filed a reply denying the defendants’ special defenses. The defendants’ answer and special defenses were directed to the plaintiffs’ original complaint. The defendants did not plead further. See Practice Book § 10-61 (“When any pleading is amended the adverse party may plead thereto within the time provided by Section 10-8 or, if the adverse party has already pleaded, alter the pleading, if desired, within ten days after such amendment or such other time as the rules of practice, or the judicial authority, may prescribe, and thereafter pleadings shall advance in the time provided by that section. If the adverse party fails to plead further, pleadings already filed by the adverse party shall be regarded as applicable so far as possible to the amended pleading.”).  Angiolillo v. Nevard The case was tried to the court, Hon. Kenneth B. Povo- dator, judge trial referee, on July 6 and 7, 2023. The court heard testimony from several witnesses and admit- ted various exhibits into the record. Following trial, the parties filed posttrial briefs. On February 26, 2024, the court issued a memorandum of decision rendering judgment in the defendants’ favor with respect to (1) the entirety of the plaintiffs’ amended complaint and (2) the portion of their counterclaim seek- ing declaratory relief.13 The court made the following relevant findings and conclusions. Barrett’s representa- tion to the plaintiffs that the 23 Henry Street property was a three-family dwelling constituted an unintentional misrepresentation, which created a “defect-in-title” issue subject to paragraph 6 (a) of the contracts. With respect to the closing, the contracts (1) provide that time was of the essence and (2) authorize Barrett to exercise an option for a single extension of the original closing date for up to thirty days (that is, up to January 16, 2019), in order to perfect a defective title, which option Barrett exercised. In the weeks leading up to January 16, 2019, the plaintiffs made “no substantive communications that might be characterized as the [plaintiffs partici- pating] in an [attempt] to resolve the [title defect] issue . . . .” (Internal quotation marks omitted.) In contrast, Barrett made “documented efforts . . . to keep the plain- tiffs informed about [his] efforts to correct the problem and propos[ed] alternatives . . . .” Specifically, Barrett proposed (1) applying for approval to convert the third unit at the 23 Henry Street property into an affordable housing unit, which the plaintiffs rejected, (2) applying for approval to convert the 23 Henry Street property into a legal three-family dwelling, which, as Barrett reason- ably determined, was not a reasonably feasible option “based on the high likelihood of it being unsuccessful (with time and expense presumably to be incurred in a likely futile effort)”; (footnote omitted); (3) structurally 13 The court rendered judgment in the plaintiffs’ favor on the portion of the defendants’ counterclaim alleging slander of title. The defendants have not cross appealed from that portion of the judgment.  Angiolillo v. Nevard converting the 23 Henry Street property into a legal two- family dwelling, which “[t]here had been no indication of any willingness of the plaintiffs to accept” and which, as Barrett reasonably determined, was not a reasonably feasible option because “there was no credible evidence that the entire process of [evicting the tenant of the third unit] and renovation could be accomplished in a reason- able time and at a reasonable cost,” and (4) amending the 23 Henry Street contract, inter alia, to reduce the price of the 23 Henry Street property by $25,000, which the plaintiffs “apparently rejected . . . .” Subsequently, by way of the January 7, 2019 letter, Barrett offered to amend the 23 Henry Street contract, inter alia, by reducing the price of the 23 Henry Street property by $30,000, but “the [plaintiffs’] only known ‘answer’ to the offer” was the commencement of the present action on January 15, 2019. Barrett reasonably construed the commencement of the present action as a rejection of the offer proposed in the January 7, 2019 letter, as well as to the sales contemplated by the con- tracts as executed. Rather than electing one of the two options available to them under paragraph 6 (a) of the contracts following Barrett’s inability to cure the title defect as to the 23 Henry Street property—accepting the defective title to the 23 Henry Street property as is or rejecting said title and cancelling the contracts—“[t]he plaintiffs appar- ently elected a third option [which was to] do nothing, insist that [Barrett] had not done enough or offered to do enough, [and] start litigation, all the while stating that they were under no obligation to make an election of the contract option they chose to assert.” Indeed, there was no evidence that, at any relevant time, the plaintiffs were willing to elect a contractually designated remedy in response to Barrett’s failure to cure the title defect. Moreover, there was no credible evidence reflecting that, prior to amending their original complaint in the present action in 2023, the plaintiffs were willing to proceed with a closing on both properties with the title defect in place  Angiolillo v. Nevard or in accordance with the offer proposed in the January 7, 2019 letter.14 In contrast, Barrett was willing either to proceed with a closing on both properties, including at a reduced price, with the title defect in place or to refund the plaintiffs’ deposit. Additionally, the January 16, 2019 letter “technically might be considered to have been ‘early’ by a matter of hours,” as the extended closing deadline expired on Janu- ary 16, 2019. Nevertheless, “[a]s a practical matter, that [was] of no consequence [because] [t]here was no evidence that anyone was prepared to go forward with a closing on January 16, 2019, but for the [January 16, 2019] letter, with an overlay of no evidence that the plaintiffs would have been willing to go forward with a closing on [the] 23 Henry Street [property] based on the situation then existing.” As to the plaintiffs’ breach of contract claim, the court concluded that the defendants did not materially breach the contracts. First, insofar as the plaintiffs asserted that the defendants breached the contracts by failing to convey the 19 Henry Street property separately from the 23 Henry Street property, the court determined that the contracts expressly required that both properties be conveyed simultaneously, such that the plaintiffs were not entitled to a standalone sale of the 19 Henry Street property. Second, insofar as the plaintiffs asserted that the defendants breached the contracts by failing to sched- ule a closing on or before January 16, 2019, the court determined that there was no evidence that the plaintiffs were prepared to proceed with a closing on both properties on or before that date, ergo no closing could have been scheduled. Third, insofar as the plaintiffs asserted that the defendants breached the contracts by failing to cure the title defect regarding the 23 Henry Street property prior to January 16, 2019, the court iterated that (1) 14 The court determined that the plaintiffs made a “strategic and intentional” decision to seek specific performance with respect to the 19 Henry Street property only in their original complaint, whereas they sought specific performance with regard to both properties in their amended complaint. See footnote 11 of this opinion.  Angiolillo v. Nevard the contracts permitted Barrett to extend the closing up to January 16, 2019, and (2) there were no feasible options to correct the defect within a reasonable period of time, even if January 16, 2019, were not the “outer limit for a closing . . . .”15 Fourth, insofar as the plaintiffs asserted that the defendants breached the contracts by withdrawing the offer proposed in the January 7, 2019 letter to sell the 23 Henry Street property at a reduced price, the court determined that the offer “was not part of any existing obligation, but it tend[ed] to reinforce the desire of [Barrett] to proceed with the transaction, even with a price adjustment not required or suggested as part of the contract performance obligation of [Bar- rett]. It [was] a measure of good faith in attempting to make the deal feasible.” Additionally, the court rejected the plaintiffs’ request for specific performance with respect to both properties because “[t]here [was] no breach that would support such a remedy. [Barrett was] not only willing to proceed with the . . . contracts as a package, as intended by the provisions of the [contracts], but extracontractually [he] had offered to reduce the price for [the] 23 Henry Street [property]. The court has concluded that [he] reasonably concluded, in good faith, that it was unlikely that [he] could obtain a change in legal characterization of the [23 Henry Street] property from the [town’s] appropri- ate land use agency . . . and that other options were not 15 The court further determined that one of the corrective options proposed by Barrett—structurally converting the 23 Henry Street property into a legal two-family dwelling—would not cure the title defect because “[t]he defect was the representation that the structure could legally be used as a three-unit structure and removal of a unit would not correct the defect to the extent that the defect properly is characterized as a representation that the [23 Henry Street] property legally could have three tenants. Simplistically, this would eliminate any illegality of use of the structure, but would not cure the inaccurate and improper representation that the [23 Henry Street] property could legally be used for occupancy by three tenants . . . . In a sense, then, this would be similar to the price reduction proposal—a possible means to facilitate the transaction but requiring something in the nature of a modification to the [23 Henry Street contract] rather than a cure of a contractually defined title defect.”  Angiolillo v. Nevard practical or had been rejected by the plaintiffs.” The court further determined that (1) the plaintiffs were not ready, willing, and able to proceed with a closing on both properties on or before January 16, 2019, and (2) it would be inequitable to order the sale of both properties on the basis of terms negotiated more than five years earlier, particularly as there was no evidence that the plaintiffs had been willing to purchase both properties on an as is basis prior to the commencement of the present action, and in light of the possible impact of the COVID-19 pan- demic on property values.16 As to the plaintiffs’ breach of the implied covenant of good faith and fair dealing claim, the court stated that “[t]here appear to be only two . . . categories of conduct [following the execution of the contracts] seemingly alleged [by the plaintiffs] and presented via evidence.”17 First, the plaintiffs asserted that Barrett did not act diligently in seeking to cure the defect vis-à-vis the 23 Henry Street property, particularly by failing to apply for a variance to permit its use as a three-family dwell- ing. The court determined that Barrett did not act in bad faith in this regard because there were no “reasonable mechanisms for curing the [title defect] in a reasonable time and at a reasonable expense . . . .” With respect to the 16 The court also determined that “there were . . . critical gaps—an almost total lack of evidence—as to damages for each of the plaintiffs’ claimed causes of action.” 17 Insofar as the plaintiffs relied on Barrett’s misrepresentation regard- ing the 23 Henry Street property to support their breach of the implied covenant of good faith and fair dealing claim, the court rejected that reliance because “conduct before a contract was signed cannot be bad faith performance of that contract.” See Macomber v. Travelers Prop- erty & Casualty Corp., 261 Conn. 620, 638, 804 A.2d 180 (2002) (“It is axiomatic that the . . . duty of good faith and fair dealing is a covenant implied into a contract or a contractual relationship. . . . The covenant of good faith and fair dealing presupposes that the terms and purpose of the contract are agreed upon by the parties and that what is in dispute is a party’s discretionary application or interpretation of a contract term. . . . In accordance with these authorities, the existence of a contract between the parties is a necessary antecedent to any claim of breach of the [cov- enant] of good faith and fair dealing.” (Citations omitted; emphasis omitted; internal quotation marks omitted.)).  Angiolillo v. Nevard plaintiffs’ proposition that Barrett should have applied for a variance, the court “credit[ed] the reasonableness of [Barrett’s] assessment of the situation” and iterated that “an administrative procedure such as that would require some period of time . . . [and] would require an indefinite extension [of the closing] with no assurance of success (or even reasonable basis that the application would be successful).” The court further determined that Barrett acted in good faith by offering to reduce the price of the 23 Henry Street property, comprising “an extracontractual effort to effectuate performance of the contract[s] . . . .” As the court summarized, “there is a failure [by the plaintiffs] to explain how or why offering to comply with contractual remedies—with an added option of an offered adjustment of the sale[s] price for [the] 23 Henry Street [property]—might be considered a breach of the [implied] covenant of good faith and fair dealing. [Barrett] did not do anything that, in bad faith, deprived the plaintiffs of a benefit to which they were entitled under the contracts.” The court next considered the plaintiffs’ contention that Barrett acted in bad faith by deeming the contracts terminated by way of the January 16, 2019 letter. The court stated that the evidence “was equivocal” as to whether the January 16, 2019 letter stemmed directly from the commencement of the present action the day before or “simply coincided with the end of the maxi- mum thirty day extension for a closing”; nevertheless, “to the extent that the commencement of the [present action] may have been the triggering event for deem- ing the contracts terminated . . . the court conclude[d] that that was not a violation of the [implied] covenant of good faith and fair dealing.” As the court elaborated, “[b]eing sued approximately one week after having made an offer to reduce the price for [the] 23 Henry Street [property]—with being served the only known ‘answer’ to the offer—it would not be unreasonable [for Barrett] to interpret that answer as ending discussions, including  Angiolillo v. Nevard rejection of a nonrequired offer to reduce the price.”18 The court further concluded that “[t]he expiration of the thirty day extension for a closing also constituted a good cause basis to terminate the process.”19 Finally, the court addressed the defendants’ request for declaratory relief. The court iterated that, pursu- ant to the contracts, time was of the essence as to the closing. The court continued: “Even if the court were in error in this respect, the [contractual] language relating to an obligation to correct defects in title is subject to a reasonableness or good faith standard, and the plaintiffs offered no credible evidence to counter the conclusion that had been reached by [Barrett] that based on [his] inquiries, it would be futile—with a substantial cost and delay—even to try to obtain formal approval of [the] 23 Henry Street [property] as a legal three-family structure. Absent a reasonable basis to challenge that conclusion, the ‘obvious’ options were to accept the impracticality of that as a solution, or pursue that unlikely to succeed course of action, or leave everything in limbo, indefi- nitely. [Barrett] reasonably relied on the expiration of the authorized thirty day extension [of the closing date] without any prospect for cure, leaving the options of the plaintiffs accepting the [23 Henry Street] property with the [title] defect or the contracts being terminated with the [plaintiffs’] deposit returned. The plaintiffs’ refusal 18 In addition, the court determined that there was no credible evidence demonstrating that the plaintiffs made “any attempt to get discussions back on track relating to curing the problem with [the] 23 Henry Street [property] or making the election of remedy as set forth in [paragraph 6 (a) of] the contracts, after [Barrett] returned (tendered return) of the . . . [plaintiffs’] deposit. In other words, even if [Barrett] overreacted, and assuming that the plaintiffs actually did not want to terminate the [contracts], the plaintiffs appear to have taken no steps (no documented steps) to try to restore the relationship to one of cooperatively working towards addressing the problem as to [the] 23 Henry Street [property]; no steps appear to have been taken to convince [Barrett] that [he] had acted rashly.” (Emphasis omitted.) 19 In addressing the plaintiffs’ breach of the implied covenant of good faith and fair dealing claim, the court also rejected their assertion that Barrett failed to provide them with material information that they had requested following the execution of the contracts.  Angiolillo v. Nevard to do what was needed—make an election—could not be allowed [as] the status quo [would] persist indefinitely. The