Tolland Meetinghouse Commons, LLC v. CXF Tolland, LLC
| Decision Date | 01 March 2022 |
| Docket Number | AC 44379 |
| Citation | 211 Conn.App. 1,271 A.3d 1118 |
| Parties | TOLLAND MEETINGHOUSE COMMONS, LLC v. CXF TOLLAND, LLC, et al. |
| Court | Connecticut Court of Appeals |
Matthew Wax-Krell, with whom, on the brief, was Denise Lucchio, Hartford, for the appellant (defendant Peter A. Rusconi).
Kurosh L. Marjani, Stamford, with whom, on the brief, was Daniel B. Brill, for the appellee (plaintiff).
Moll, Clark and Sheldon, Js.
The present appeal arises out of an action alleging breach of a commercial lease agreement against the defendant CXF Tolland, LLC (Cardio Express),1 and breach of a guaranty agreement against the defendant Peter A. Rusconi. Rusconi appeals from the judgment of the trial court rendered in favor of the plaintiff, Tolland Meetinghouse Commons, LLC (Tolland Meetinghouse), granting Tolland Meetinghouse's motion for summary judgment.2 We affirm the judgment of the trial court.
The record, viewed in the light most favorable to Rusconi for purposes of reviewing the trial court's summary judgment ruling; see Cefaratti v. Aranow , 321 Conn. 637, 641, 138 A.3d 837 (2016) ; reveals the following facts. On May 14, 2007, Cardio Express entered into a lease with Tolland Meetinghouse's predecessor in interest (landlord) to lease certain premises in a shopping center3 to be used as an exercise facility and health club. The term of the lease was from May 1, 2007, until October 31, 2018.
On May 10, 2007, Rusconi signed a guaranty agreement. The guaranty agreement provides in part:
Paragraph 2 of the guaranty agreement provides in part that, "[e]ven if the Lease is renewed or its term extended, for any period beyond the original expiration date specified in the Lease, either pursuant to any option to renew granted under the Lease or otherwise at any time, or if [Cardio Express] holds over beyond the term of the Lease, or if the Lease is modified in any way, the obligations hereunder of the Guarantor shall terminate at the expiration of the initial five (5) years of the initial Lease term." Paragraph 11 (j) of the guaranty agreement provides that the "term of this Guaranty Agreement shall be only for the initial first five years of the initial Lease term."
On August 17, 2010, after Tolland Meetinghouse acquired an interest in the premises, it and Cardio Express entered into the first amendment of lease. The first amendment provided in part that "the Lease is hereby ratified and confirmed and shall remain in full force and effect." Rusconi signed the first amendment for Cardio Express as its member/manager. Several years later, Cardio Express failed to pay rent due and Tolland Meetinghouse issued a notice to quit dated March 16, 2016.
In April, 2016, Tolland Meetinghouse and Cardio Express entered into a second amendment to lease.
The second amendment stated in part: "The parties desire to amend the Lease, by restructuring the amounts due under the Lease, as hereinafter set forth. ...
(Emphasis added.) Rusconi signed the second amendment for Cardio Express as its member/manager and as Guarantor. Cardio Express paid Tolland Meetinghouse the reduced arrearage in full in 2017.
Tolland Meetinghouse commenced the present action in 2019. In its revised complaint, Tolland Meetinghouse alleged in relevant part that Cardio Express entered into possession of the premises pursuant to the lease as amended and continued in possession until it vacated the premises on or about December 18, 2018, after having held over after the lease expired on October 11, 2018. Pursuant to the lease, Cardio Express agreed to pay monthly rent of $17,410.67 in the tenth year of the lease and $18,498.83 per month for the eleventh year of the lease. The lease also provided that any holding over of the premises entitled Tolland Meetinghouse to recover a use and occupancy charge of 150 percent of the monthly rent. Cardio Express is responsible for holdover charges for November and December, 2018. The revised complaint sounds in five counts against Cardio Express: nonpayment of base rent, nonpayment of common area maintenance charges, nonpayment of water charges, nonpayment of administrative charges, and nonpayment of late fee.
The revised complaint alleged one count of breach of guaranty against Rusconi. More specifically, the count against Rusconi incorporated the allegations against Cardio Express, that, on May 10, 2007, Rusconi executed a separate guaranty agreement providing that he "unconditionally and absolutely Guarantees to Landlord the prompt payment, when due, of the rents and any and all other charges payable under the Lease ...." By the second amendment to lease, which Rusconi executed on behalf of Cardio Express and as a personal guarantor in April, 2016, "he reaffirmed his obligations in respect to that Guaranty and acknowledged that it ‘shall remain in full force and effect.’ " As a result of Cardio Express’ nonpayment, Rusconi owes those sums to Tolland Meetinghouse. In his answer, Rusconi denied, among other things, that he reaffirmed his obligations as guarantor in the second amendment to lease. He pleaded as a special defense that the guarantee agreement "previously expired on its own terms, and is therefore unenforceable."
After the pleadings were closed, on January 30, 2020, Tolland Meetinghouse filed a motion for summary judgment with respect to its claims against Cardio Express and Rusconi. With respect to its breach of guaranty claim against Rusconi, Tolland Meetinghouse argued that it was entitled to judgment as a matter of law because it established that it was owed a debt from a third party, Rusconi signed a guaranty to pay the debt, and the debt had not been paid by either Cardio Express or Rusconi. See Chase Manhattan Bank, N.A. v. Harris , 899 F. Supp. 64, 67 (D. Conn. 1995) (), vacated in part, Docket No. 5:92CV188, 1998 WL 164763 (D. Conn. February 25, 1998). It also argued that, in April, 2016, Rusconi reaffirmed his obligations in the second lease agreement as Cardio Express’ guarantor and agreed that the guaranty shall remain in full force and effect. Moreover, Rusconi admitted that he signed the second lease agreement in his personal capacity as guarantor.
On January 31, 2020, Rusconi filed a motion for summary judgment in which he claimed that Tolland Meetinghouse could not prevail against him as a matter of law because the "guaranty at issue had long since expired by its terms." Moreover, "to the extent [he] provided any subsequent guaranty ... [it] was limited to an amount that was paid in full by [Cardio Express]."
Tolland Meetinghouse objected to Rusconi's motion for summary judgment on March 16, 2020, arguing with respect to the second amendment to lease that Rusconi admitted that "[t]he Guarantor hereby reaffirms his obligations in respect to the terms of the Guaranty dated May 10, 2007, which Guaranty shall remain in full force and effect." In support of its position, Tolland Meetinghouse appended Rusconi's January 31, 2020 affidavit in which he attested that the attached "[e]xhibit D is a true and accurate copy of the second amendment to lease dated April ––, 2016 between Tolland Meetinghouse Commons, LLC and CXF Tolland LLC ...."
On June 15, 2020, Cardio Express and Rusconi filed an opposition to Tolland Meetinghouse's motion for summary judgment. They did not contest Cardio Express’ liability but requested a hearing in damages as to the amount due Tolland Meetinghouse. Rusconi, however, argued that Tolland Meetinghouse's motion for summary judgment should be denied and that his motion for summary judgment should be granted. In support of his opposition, Rusconi contended that the guaranty had expired prior to the execution of the second amendment to lease, and, therefore, there was nothing to reaffirm. Alternatively, he argued that, to the extent the second amendment includes an enforceable guaranty, it was limited to Cardio Express’ obligation to pay the reduced arrearage, which...
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