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1916 POST ROAD ASSOCIATES, LLC v. MRS.
GREEN’S OF FAIRFIELD, INC., ET AL.
(AC 41276)
DiPentima, C. J., and Prescott and Bright, Js.
Syllabus
The plaintiff, which had entered into a commercial lease for certain of its
real property, sought to recover damages from the defendant U Co., the
guarantor on the commercial lease, which had been assigned to N Co.
When N Co. assigned its interest to G Co., U Co. confirmed in a letter
to the plaintiff that its guarantee would remain in effect. During the
term of G Co.’s lease, G Co. was sold to P Co. Prior to the sale, U Co.
sent a second letter to the plaintiff in which U Co. requested that the
plaintiff irrevocably waive its option to cancel the lease as a result of
P Co.’s acquisition of G Co., and that neither P Co.’s acquisition of G
Co. nor the cancellation waiver would limit U Co.’s obligations under
the guarantee. Thereafter, G Co., in connection with its acquisition by
P Co., informed the plaintiff that it was exercising its option to extend
the lease term beyond the original termination date of the lease. The
plaintiff then consented to the acquisition of G Co. by P Co. and waived
its option to cancel the lease. Thereafter, G Co. failed to pay rent owed,
and the plaintiff obtained a judgment in its favor in a summary process
action against G Co. and evicted G Co. for failure to pay rent. Subse-
quently, the plaintiff brought this action, in which it claimed that U Co.
was liable for G Co.’s debts to the plaintiff. U Co. filed a motion for
summary judgment, asserting that, under the language of the guarantee,
it could not be held liable for a breach that occurred after the expiration
date of the original lease term. The plaintiff claimed that U Co.’s two
letters to the plaintiff created a genuine issue of material fact as to
whether U Co.’s guarantee was expanded or modified to cover the
optional lease term. The trial court granted U Co.’s motion for summary
judgment and rendered judgment thereon, from which the plaintiff
appealed to this court. Held that the trial court properly granted U Co.’s
motion for summary judgment, as the unambiguous language in U Co.’s
two letters to the plaintiff did not change U Co.’s obligations under the
guarantee and, thus, there was no genuine issue of material fact as to
whether U Co.’s guarantee covered the optional extension period of the
lease agreement; there was no language in the first letter that supported
the plaintiff’s claim that it served to create a new guarantee, as the
unambiguous language of the letter did nothing more than assure the
plaintiff that U Co.’s guarantee would not be unenforceable as a result
of the lease assignment to G Co., there was no indication in the second
letter that the guarantee was being modified in consideration of the
plaintiff’s consent to the acquisition of G Co. by P Co., as there was no
reference to G Co.’s exercise of its option to extend the lease, and
the plaintiff’s contention that U Co.’s reference to a future transaction
referred to the extension of the lease term was at best speculation, which
alone was not sufficient to overcome a motion for summary judgment.
Argued February 14—officially released June 25, 2019
Procedural History
Action to recover damages for, inter alia, breach of
a guarantee of a commercial lease, brought to the Supe-
rior Court in the judicial district of Fairfield, Housing
Session at Bridgeport, where the named defendant et
al. were defaulted for failure to plead; thereafter, the
court, Rodriguez, J., granted the motion for summary
judgment filed by the defendant United Natural Foods,
Inc., and rendered judgment thereon, from which the
plaintiff appealed to this court. Affirmed.
Robert D. Russo, for the appellant (plaintiff).
Robert C. Hinton, for the appellee (defendant United
Natural Foods, Inc.).
Opinion
DiPENTIMA, C. J. The plaintiff, 1916 Post Road Asso-
ciates, LLC, appeals from the summary judgment ren-
dered in favor of the defendant United Natural Foods,
Inc.1 The plaintiff contends that the trial court improp-
erly rendered summary judgment because two separate
letters sent by the defendant create a genuine issue of
material fact as to whether the defendant’s guarantee
of the terms of a commercial lease continued through
an optional extension period following the expiration
of the original lease term. We disagree and, accordingly,
affirm the judgment of the trial court.
Viewed in the light most favorable to the plaintiff as
the nonmoving party, the record reveals the following
facts and procedural history. The plaintiff is the owner
of real property located at 1916 Post Road in Fairfield,
Connecticut. On May 24, 1996, the plaintiff entered into
a fifteen year lease agreement (lease) with Sweetwater
Associates, Inc. (Sweetwater), and on May 1, 1997, the
lease term began.2 Five months later, on November 7,
1997, Sweetwater assigned the lease to Natural Retail
Group, Inc. (Natural Retail), and, on the same day, the
defendant guaranteed ‘‘the payment and performance
by the [a]ssignee of all of its obligations under the
[l]ease and all of the obligations of the [t]enant as
defined under the [l]ease effective as of the date hereof.’’
On April 4, 1999, Natural Retail subsequently assigned
its interest to Mrs. Green’s of Fairfield, Inc. (Mrs.
Green’s); in a letter dated May 13, 1999, the defendant
confirmed that its guarantee would remain in effect
despite the assignment of the lease to Mrs. Green’s.3
At some point during the original lease term, the
shareholders of Mrs. Green’s sold all interest in the
business to Planet Organic Health Corp. Prior to this
sale, the defendant sent a second letter, dated June 28,
2007, to the plaintiff indicating that it had ‘‘no objection
to the acquisition of the shares of [Mrs. Green’s] by
Planet Organic Health Corp. or its affiliates . . . .’’ In
addition to communicating that it had no objection to
the acquisition of Mrs. Green’s, the defendant also
requested that the plaintiff ‘‘irrevocably waive its option
to cancel the [l]ease as a result of the [a]cquisition . . .
without prejudice to [the plaintiff’s] right to exercise
such option in connection with a future transaction.’’4
Finally, the defendant stated that ‘‘neither the [a]cquisi-
tion nor the [c]ancellation [w]aiver shall in any way
limit [the defendant’s] obligations under the existing
guarant[ee] made by [the defendant] in favor of [the
plaintiff].’’
On July 3, 2007, in connection with Planet Organic
Health Corp.’s acquisition of Mrs. Green’s, the plaintiff
received a letter from Mrs. Green’s with several enclo-
sures. Among those enclosures was a notice from Mrs.
Green’s that it was exercising its option to extend the
lease term from the original termination date through
April 30, 2017.5 Also included were a copy of the defen-
dant’s June 28, 2007 letter to the plaintiff and lease
guarantees from Planet Organic Health Corp. and Planet
Organic Holding Corp. Sometime after receiving the
July 3, 2007 letter from Mrs. Green’s, the plaintiff con-
sented to the acquisition of Mrs. Green’s by Planet
Organic Health Corp. and waived its option to cancel
the lease.
During the extension period, Mrs. Green’s failed to
pay the rent owed for November, 2016.6 Thereafter, on
January 5, 2017, the plaintiff served Mrs. Green’s with
a notice to quit the premises and, on February 15, 2017,
commenced a summary process action to evict Mrs.
Green’s. Judgment in the summary process action was
rendered in favor of the plaintiff on March 1, 2017,
and Mrs. Green’s was evicted on March 17, 2017. The
plaintiff claims that, despite diligent efforts, it was
unable to re-lease the premises prior to the expiration
of the extended lease term, April 30, 2017.
On April 24, 2017, the plaintiff commenced the pre-
sent action against the defendant. The complaint alleges
that the defendant is liable for the debts of Mrs. Green’s
pursuant to the terms of the November 7, 1997 guaran-
tee, as confirmed by the May 13, 1999 letter. On July
31, 2017, the defendant filed an answer and special
defenses, in which it admitted that it had entered into
a written guarantee of the lease obligations of Mrs.
Green’s, but denied that it was liable for that company’s
debts to the plaintiff. Then, on September 20, 2017,
the defendant filed a motion for summary judgment,
arguing that there was no genuine issue of material
fact as to whether the guarantee extended through the
optional extension period beyond the original lease
term and, on the basis of the language in the guarantee,
the defendant could not be held liable for a breach that
occurred after the expiration of the original lease term.
The plaintiff filed an opposition to the defendant’s
motion, contending that the defendant’s guarantee did
apply to the optional extension period or, ‘‘[a]t the very
least,’’ there was a factual dispute as to this issue. On
December 18, 2017, the court granted the defendant’s
motion for summary judgment.7 This appeal followed.
On appeal, the plaintiff claims that the trial court
improperly granted the defendant’s motion for sum-
mary judgment because there is a genuine issue of mate-
rial fact that the defendant’s guarantee continued
through the optional extension period following the
expiration of the original lease term. We disagree and,
therefore, affirm the judgment of the trial court.
We begin by setting forth the relevant standard of
review and legal principles that govern our review.
‘‘Practice Book § [17-49] provides that summary judg-
ment shall be rendered forthwith if the pleadings, affida-
vits and any other proof submitted show that there is
no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.
. . . In deciding a motion for summary judgment, the
trial court must view the evidence in the light most
favorable to the nonmoving party. . . . The party seek-
ing summary judgment has the burden of showing the
absence of any genuine issue [of] material facts which,
under applicable principles of substantive law, entitle
him to a judgment as a matter of law . . . and the party
opposing such a motion must provide an evidentiary
foundation to demonstrate the existence of a genuine
issue of material fact. . . . [I]ssue-finding, rather than
issue-determination, is the key to the procedure. . . .
[T]he trial court does not sit as the trier of fact when
ruling on a motion for summary judgment. . . . [Its]
function is not to decide issues of material fact, but
rather to determine whether any such issues exist. . . .
Our review of the decision to grant a motion for sum-
mary judgment is plenary. . . . We therefore must
decide whether the court’s conclusions were legally
and logically correct and find support in the record.’’
(Internal quotation marks omitted.) Cruz v. Schoenh-
orn, 188 Conn. App. 208, 214–15, 204 A.3d 764 (2019).
The standard of review for contract interpretation is
also well established. ‘‘Although ordinarily the question
of contract interpretation, being a question of the par-
ties’ intent, is a question of fact . . . [when] there is
definitive contract language, the determination of what
the parties intended by their . . . commitments is a
question of law [over which our review is plenary]. . . .
Where the language of an agreement is susceptible to
more than one reasonable interpretation, however, it
is ambiguous. . . . [T]he determination . . . whether
contractual language is plain and unambiguous is itself
a question of law subject to plenary review.’’ (Citations
omitted; internal quotation marks omitted.) Meeker v.
Mahon, 167 Conn. App. 627, 632–33, 143 A.3d 1193
(2016). ‘‘Furthermore, a presumption that the language
used is definitive arises when . . . the contract at issue
is between sophisticated parties and is commercial in
nature.’’ (Internal quotation marks omitted.) Allstate
Life Ins. Co. v. BFA Ltd. Partnership, 287 Conn. 307,
314, 948 A.2d 318 (2008). It is undisputed that the parties
to this case are corporations and that the transaction
was commercial in nature.
‘‘[Guarantees] are . . . distinct and essentially dif-
ferent contracts; they are between different parties,
they may be executed at different times and by separate
instruments, and the nature of the promises and the
liability of the promisors differ substantially . . . . The
contract of the guarantor is his own separate undertak-
ing in which the principal does not join.’’ (Internal quo-
tation marks omitted.) JP Morgan Chase Bank, N.A. v.
Winthrop Properties, LLC, 312 Conn. 662, 675–76, 94
A.3d 622 (2014); see also Wolthausen v. Trimpert, 93
Conn. 260, 265, 105 A. 687 (1919) (‘‘[a] guaranty is a
collateral undertaking to pay a debt or perform a duty,
in case of the failure of another person, who is in the
first instance liable to such payment or performance’’
[internal quotation marks omitted]).
This court previously has addressed whether a guar-
antor of a lease can be held liable for a default that
occurred during an extension period following the expi-
ration of the original lease term. See Village Linc Corp.
v. Children’s Store, Inc., 31 Conn. App. 652, 626 A.2d
813 (1993). In Village Linc Corp., the plaintiff appealed
from the trial court’s denial of an application for a
prejudgment remedy against defendants who had guar-
anteed a rental lease. Id., 652–53. The trial court denied
the prejudgment remedy on the ground that the plaintiff
had failed to adduce sufficient evidence to show that
the defendants’ guarantee was intended to secure the
renewed lease period in which the default had occurred.
Id., 658. On appeal, this court affirmed the judgment of
the trial court. Id., 660. In reaching that decision, this
court noted that the guarantee did not refer to any lease
renewal and that the lease renewal itself did not include
any indication that the guarantee would continue to
apply. Id., 659–60. Further, the court contrasted the
language in the defendants’ guarantee with those cases
in which the parties clearly intended a continuing guar-
antee to have been created. Id. For example, in Connect-
icut National Bank v. Foley, 18 Conn. App. 667, 560
A.2d 475 (1989), the guarantee provided that the guaran-
tor could be held ‘‘responsible for everything the bor-
rower owes . . . now and in the future.’’ (Emphasis
in original; internal quotation marks omitted.) Id., 670.
Similarly, in LeCraw v. Atlanta Arts Alliance, Inc., 126
Ga. App. 656, 191 S.E.2d 572 (1972), the language of
the guarantee provided that if a default occurred ‘‘ ‘at
any time’ ’’ during the lease, the guarantor would
assume responsibility for the tenant’s obligations. Id.,
657; see also Zero Food Storage, Inc. v. Udell, 163 So.
2d 303, 304–305 (Fla. App. 1964). Conversely, the guar-
antee in Village Linc Corp. provided that it applied to
the original lease term and made no mention of its
applicability to any potential lease renewals. In light of
this evidence, the court concluded that the decision to
deny the application for a prejudgment remedy against
the guarantor was not clearly erroneous. Village Linc
Corp. v. Children’s Store, Inc., supra, 660.
Here, the defendant claims that the present case is
similar to Village Linc Corp. because the November
7, 1997 guarantee contains no indication that it was
intended to continue in the event the tenant exercised
its option to extend the lease term. In support of this
argument, the defendant cites the provision of the guar-
antee that specifies it is limited to the payment and
performance of the tenant’s obligations under the lease
‘‘effective as of the date hereof.’’ The defendant con-
tends that this provision unambiguously limits the guar-
antee to the obligations that the tenant had under the
lease when the guarantee went into effect, which did
not include the optional lease term. In response, the
plaintiff does not dispute that the November 7, 1997
guarantee references the original lease term and, thus,
was not intended to cover the optional extension
period.8 Instead, the plaintiff rests its argument on the
May 13, 1999 letter and the June 28, 2007 letter, arguing
that the language in these letters creates a genuine
issue of material fact as to whether the guarantee was
expanded or modified to cover the optional lease term.
With respect to the May 13, 1999 letter, the plaintiff
argues that, in confirming that its guarantee would
remain in effect despite the assignment of the lease to
Mrs. Green’s, the defendant did not indicate that the
guarantee was limited to the original lease term. In
essence, the plaintiff infers that this letter served to
create a new guarantee—one that was not limited to the
original lease term—in consideration of the plaintiff’s
consent to the assignment of the lease. As to the June
28, 2007 letter, the plaintiff contends that it was sent
in contemplation not only of the acquisition of Mrs.
Green’s by Planet Organic Health Corp. but also of
the lease extension, and was intended to modify the
guarantee to cover this period in consideration of the
plaintiff waiving its right to cancel the lease. We do not
read these two letters to the same effect.
First, as to the May 13, 1999 letter, there is no language
in the document that supports the plaintiff’s claim that
it served to create a new guarantee. Rather, the letter
merely confirms that the obligations of the defendant,
as guarantor, would not change as a result of the plain-
tiff’s consent to the assignment of the lease to Mrs.
Green’s. See footnote 3 of this opinion. Those obliga-
tions were created by the November 7, 1997 guarantee,
which the plaintiff does not dispute was limited to the
original lease term. As such, the unambiguous language
of the May 13, 1999 letter does nothing more than assure
the plaintiff that the defendant’s guarantee would not
be unenforceable as a result of the lease assignment.
See Meeker v. Mahon, supra, 167 Conn. App. 635–36
(holding that ‘‘unambiguous language of the guarantee,
read in conjunction with the unambiguous language of
the lease,’’ supported legal conclusion that defendants’
liability for any of the tenants’ lease obligations did not
include any of those obligations occurring on dates
after the lease expired).
Second, in reviewing the defendant’s June 28, 2007
letter to the plaintiff, we can discern no indication that
the guarantee was being modified in consideration of
the plaintiff’s consent to the acquisition of Mrs. Green’s
by Planet Organic Health Corp. As stated previously in
this opinion, the June 28, 2007 letter: (1) provides that
the defendant has no objection to the acquisition of
Mrs. Green’s by Planet Organic Health Corp.; (2)
requests that the plaintiff waive its right to cancel the
lease; and (3) confirms that the plaintiff’s consent to
the acquisition of Mrs. Green’s by Planet Organic Health
Corp. would not affect the defendant’s obligations
under its existing guarantee. There is no reference to
Mrs. Green’s exercising its option to extend the lease;
thus, it can hardly be surmised that the letter was sent
in contemplation of such an action. Moreover, the con-
tention that the defendant’s reference to a ‘‘future trans-
action’’ referred to the extension of the lease term is
at best speculation, which alone is not sufficient to
overcome a motion for summary judgment. See
Escourse v. 100 Taylor Avenue, LLC, 150 Conn. App.
819, 829–30, 92 A.3d 1025 (2014). Accordingly, having
concluded that the unambiguous language in the May
13, 1999 letter and the June 28, 2007 letter did not
change the defendant’s obligations under the November
7, 1997 guarantee, we further conclude there is no genu-
ine issue of material fact as to whether the defendant’s
guarantee covered the optional extension period of the
lease agreement.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Mrs. Green’s of Fairfield, Inc., Planet Organic Holding Corp. and Planet
Organic Health Corp. also were named as defendants in the underlying
action. They were defaulted for failure to plead and have not participated
in the present appeal. Accordingly, we refer to United Natural Foods, Inc.,
as the defendant.
2
The original fifteen year term, therefore, was set to expire on May 1, 2012.
3
The May 13, 1999 letter provides in relevant part: ‘‘Reference is made
to . . . a certain [l]ease [a]greement dated as of May 24, 1996 . . . between
[the plaintiff] and [National Retail], as assignee of Sweetwater Associates,
Inc. . . . and . . . a certain [a]ssignment of [the] [l]ease of even date . . .
relating to the assignment of the [l]ease to Mrs. Green’s . . . . [The defen-
dant] has guaranteed [National Retail’s] obligations under the [l]ease. This
letter will confirm the agreement of [National Retail] and [the defendant]
that, in order to induce [the plaintiff] to execute a certain [c]onsent to
[a]ssignment of even date . . . [National Retail] and [the defendant]
expressly agree that [the plaintiff’s] consent to the [a]ssignment shall not
release [National Retail] or [the defendant] from any obligation with respect
to the [l]ease, except to the extent paid or performed by [the] [a]ssignee.’’
4
Section 15.2 of the lease provides in relevant part: ‘‘If [t]enant is a
corporation . . . and if at any time after execution of this [l]ease any part
of all of the corporate shares shall be transferred by sale, assignment,
bequest, inheritance, operation of law or other disposition . . . so as to
result in a change in the present control of said corporation by the person
or persons now owning a majority of said corporate shares, [t]enant shall
give the landlord notice of such event within fifteen (15) days prior to the
date of such transfer. In such event and whether or not [t]enant has given
such notice, [l]andlord may elect to terminate this [l]ease at any time there-
after by giving [t]enant notice of such election, in which event this [l]ease
and the rights and obligations of the parties hereunder shall cease as of a
date set forth in such notice which date shall not be less than sixty (60)
days after the date of such notice.’’
5
Section 21.1 of the lease provides in relevant part: ‘‘At the expiration of
the original [t]erm hereof, and provided [t]enant is not in material default
of its part hereunder, [l]andlord hereby grants to [t]enant an option to
renew this [l]ease for three (3) separate additional five (5) year [t]erms . . .
commencing at the expiration of the [i]nitial [t]erm. Tenant must notify
[l]andlord of its intention to renew under this option at least six (6) months
prior to the expiration of the [i]nitial [t]erm.’’
Further, the lease provided that the terms of the option period would be
the same as the terms for the original lease period, with the exception of
changes to the yearly rental cost.
6
Mrs. Green’s also failed to pay the rent for each of the months remaining
on the lease until its expiration on April 30, 2017.
7
On January 2, 2018, the plaintiff filed a motion to reargue, which was
summarily denied by the court on January 5, 2018.
8
In its principal brief to this court, the plaintiff acknowledged that ‘‘[t]he
first guarantee, dated November 7, 1997, like in Village Linc Corp. . . . did
refer only to the initial term of the lease. . . . The [November 7, 1997
guarantee] stated the commencement date and the expiration date of the
lease.’’ At oral argument, however, the plaintiff’s counsel claimed that the
November 7, 1997 guarantee itself was not expressly limited to the original
lease term. To the extent that the plaintiff takes the position that the Novem-
ber 7, 1997 guarantee is ambiguous with respect to whether the parties
intended it to cover the optional extension period, we decline to address
this contention, as it runs afoul of our well settled rule that ‘‘claims on
appeal must be adequately briefed, and cannot be raised for the first time
at oral argument before the reviewing court.’’ (Internal quotation marks
omitted.) Bridgeport v. Grace Building, LLC, 181 Conn. App. 280, 294, 186
A.3d 754 (2018).