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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. Subsequently, 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 Superior 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 Associates, LLC, appeals from the summary judgment rendered in favor of the defendant United Natural Foods,

Inc.1 The plaintiff contends that the trial court improperly 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]cquisition 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 enclosures. 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 defendant’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 consented 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 present 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 guarantee, 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 summary judgment because there is a genuine issue of material 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 judgment shall be rendered forthwith if the pleadings, affidavits 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 seeking 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 summary 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. Schoenhorn, 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 parties’ 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 different 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 undertaking in which the principal does not join.’’ (Internal quotation 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 guarantor of a lease can be held liable for a default that

occurred during an extension period following the expiration 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 guaranteed 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 guarantee to have been created. Id. For example, in Connecticut National Bank v. Foley, 18 Conn. App. 667, 560

A.2d 475 (1989), the guarantee provided that the guarantor could be held ‘‘responsible for everything the borrower 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 guarantee 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 guarantee 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 contends that this provision unambiguously limits the guarantee 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 plaintiff’s consent to the assignment of the lease to Mrs.

Green’s. See footnote 3 of this opinion. Those obligations 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 contention that the defendant’s reference to a ‘‘future transaction’’ 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 genuine 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 defendant] 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 thereafter 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 November 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).