Tolland Meetinghouse Commons, LLC v. CXF Tolland, LLC ( 2022 )

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APPENDIX
TOLLAND MEETINGHOUSE COMMONS, LLC v.
CXF TOLLAND, LLC, ET AL.*
Superior Court, Judicial District of Tolland
File No. CV-XX-XXXXXXX-S
Memorandum filed October 27, 2020
Proceedings
Memorandum of decision on plaintiff’s motion for
summary judgment and on defendant Peter A. Rusconi’s
motion for summary judgment. Plaintiff’s motion
granted; defendant’s motion denied.
Kurosh L. Marjani and Daniel B. Brill, for the plain-
tiff.
Matthew T. Wax-Krell and Denise Luccio, for the
defendants.
Opinion
FARLEY, J.
MEMORANDUM OF DECISION
The plaintiff, Tolland Meetinghouse Commons, LLC
(‘‘Tolland Meetinghouse’’), has brought this action
claiming breach of a commercial lease agreement by
the defendant CXF Tolland, LLC, d/b/a Cardio Express
(‘‘Cardio Express’’), and claiming breach of a guaranty
agreement by the defendant Peter Rusconi. Tolland
Meetinghouse and Rusconi have both moved for sum-
mary judgment. Tolland Meetinghouse’s motion is
granted as to both Rusconi and Cardio Express. Rus-
coni’s motion is denied.
FACTS AND PROCEEDINGS
On May 14, 2007, a predecessor in interest to Tolland
Meetinghouse entered into a commercial lease agree-
ment with Cardio Express demising premises that were
part of a shopping center called Meetinghouse Com-
mons, to be used as an exercise facility and health club.
The lease provided for a term of eleven years and six
months, commencing on May 1, 2007, and terminating
on October 31, 2018. Also in May, 2007, Rusconi, at
the time a member of CXF Tolland, LLC, signed an
agreement (the ‘‘guaranty agreement’’) dated May 10,
2007, unconditionally guaranteeing the performance of
Cardio Express’ obligations under the lease for a term
of five years, a period that expired on May 1, 2012. In
August, 2010, following Tolland Meetinghouse’s succes-
sion to the original landlord’s interests, the lease was
amended (‘‘first amendment of lease’’) to recognize that
Tolland Meetinghouse was now the landlord, and the
lease was ratified and remained in full force and effect.
Thereafter, on May 1, 2012, the guaranty agreement
expired by its own terms.
A ledger statement submitted in support of Tolland
Meetinghouse’s motion for summary judgment indi-
cates that Cardio Express was current on its account
as of August 5, 2014, two years after the original guar-
anty by Rusconi expired. The account was in arrears,
however, throughout the rest of 2014, all of 2015, and
into 2016. In March, 2016, Tolland Meetinghouse com-
menced eviction proceedings by serving Cardio Express
with a notice to quit. In April, 2016, Tolland Meeting-
house and Cardio Express entered into a ‘‘Second
Amendment to Lease’’ (‘‘second amendment’’). The pur-
pose of this amendment was to restructure an arrearage
under the lease, acknowledged at the time by Cardio
Express to be $122,275.71. The notice to quit was
revoked and the pending eviction thus avoided by
means of the second amendment.
Under the second amendment to the lease, Tolland
Meetinghouse agreed to reduce the amount of the
arrearage to $100,000 to be paid in eighteen monthly
installments of $5555.55 through September, 2017, ‘‘con-
ditioned on the Tenant’s full compliance with the terms
set forth herein.’’ Upon any default in the payments
or otherwise under the lease, the original amount of
$122,275.71 would become due, subject to credit for
any installment payments already made. Importantly,
although Rusconi was not a party to the lease, he signed
the second amendment as ‘‘guarantor’’ in addition to
signing in his status as ‘‘member/manager’’ of Cardio
Express. Paragraph 5 of the second amendment pro-
vides: ‘‘The 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.’’ Following the execution of the second amend-
ment, Cardio Express made all eighteen of the $5555.55
payments called for in the agreement, although its
account never achieved currency again. From June,
2018, through the end of the lease on October 31, 2018,
Cardio Express made no payments under the lease as
amended, and it held over in the premises until Decem-
ber 18, 2018. According to the ledger, at that time Cardio
Express’ account was in arrears $291,997.61. In this
litigation, however, Tolland Meetinghouse has chosen
not to pursue $7687.27 reflected in the ledger because
it was not included in the $122,275.71 arrearage agreed
upon between the parties in the second amendment.
Tolland Meetinghouse has also credited a prorated
share of rent for December, 2018, which is not reflected
in the ledger. Thus, the amount sought by Tolland Meet-
inghouse is an arrearage of $276,552.77, an amount
which includes rent and other charges for the month
of November, 2018, and part of December, 2018, after
the lease expired, totaling $42,412.63.
The principal dispute between the parties concerns
the nature and extent of Rusconi’s obligations as guar-
antor. Rusconi contests liability and has moved for sum-
mary judgment himself, based principally upon the
argument that the original guaranty expired in 2012,
and the 2016 second amendment did not create any
new obligations beyond those set forth in the original
guaranty agreement. Cardio Express acknowledges its
default under the lease. As referenced above, Tolland
Meetinghouse has supported its motion for summary
judgment with evidence of the amounts owed under
the lease. Cardio Express and Rusconi submitted no
evidence concerning the amounts due. While Cardio
Express does not contest liability it does contest the
amount of damages sought by Tolland Meetinghouse
and, without submitting any evidence contesting dam-
ages, requests that the court conduct a hearing in dam-
ages ‘‘so it may cross-examine the plaintiff’s representa-
tive regarding the amount of claimed damages,
including late fees, charges, and credits.’’
DISCUSSION
‘‘[S]ummary judgment shall be rendered forthwith if
the pleadings, affidavits and 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.’’ (Internal
quotation marks omitted.) Stuart v. Freiberg, 316 Conn.
809, 820–21, 116 A.3d 1195 (2015). ‘‘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. . . . A material fact . . . [is] a
fact which will make a difference in the result of the
case.’’ (Internal quotation marks omitted.) Id., 821.
‘‘To satisfy his burden the movant must make a show-
ing that it is quite clear what the truth is, and that
excludes any real doubt as to the existence of any
genuine issue of material fact. . . . When documents
submitted in support of a motion for summary judgment
fail to establish that there is no genuine issue of material
fact, the nonmoving party has no obligation to submit
documents establishing the existence of such an issue.
. . . Once the moving party has met its burden, how-
ever, the opposing party must present evidence that
demonstrates the existence of some disputed factual
issue.’’ (Internal quotation marks omitted.) Ferri v.
Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015).
‘‘Although ordinarily the question of contract inter-
pretation, being a question of the parties’ intent, is a
question of fact . . . [w]here there is definitive con-
tract language, the determination of what the parties
intended by their contractual commitments is a ques-
tion of law.’’ (Internal quotation marks omitted.) Tall-
madge Bros., Inc. v. Iroquois Gas Transmission Sys-
tem, L.P., 252 Conn. 479, 495, 746 A.2d 1277 (2000). ‘‘A
contract must be construed to effectuate the intent of
the parties, which is determined from the language used
interpreted in the light of the situation of the parties
and the circumstances connected with the transaction.
. . . [T]he intent of the parties is to be ascertained by
a fair and reasonable construction of the written words
and . . . the language used must be accorded its com-
mon, natural, and ordinary meaning and usage where
it can be sensibly applied to the subject matter of the
contract.’’ Id., 498. ‘‘In ascertaining intent, we consider
not only the language used in the contract but also the
circumstances surrounding the making of the contract,
the motives of the parties and the purposes which they
sought to accomplish.’’ Connecticut Co. v. Division
425, 147 Conn. 608, 616, 164 A.2d 413 (1960); Schlicher
v. Schwartz, 58 Conn. App. 80, 85, 752 A.2d 517 (2000).
‘‘Every provision of the contract must be given effect
if it can reasonably be done, because parties ordinarily
do not insert meaningless provisions in their agree-
ments.’’ Connecticut Co. v. Division 425, supra, 617.
‘‘When there are multiple writings regarding the same
transaction, the writings should be considered together
to determine the intent of the parties.’’ (Internal quota-
tion marks omitted.) Frantz v. Romaine, 93 Conn. App.
385, 395, 889 A.2d 865, cert. denied, 277 Conn. 932, 896
A.2d 100 (2006). ‘‘[Guarantees] are . . . distinct and
essentially different contracts; they are between differ-
ent 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.) 1916 Post Road
Associates, LLC v. Mrs. Green’s of Fairfield, Inc., 191
Conn. App. 16, 23, 212 A.3d 744 (2019), quoting 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 pay-
ment or performance’’ (internal quotation marks omit-
ted)). When two agreements, however, are connected
by reference and subject matter, both are to be consid-
ered in determining the real intent of the parties. See
Massaro v. Savoy Estates Realty Co., 110 Conn. 452,
459, 148 A. 342 (1930). ‘‘Where . . . the signatories exe-
cute a contract which refers to another instrument in
such a manner as to establish that they intended to
make the terms and conditions of that other instrument
a part of their understanding, the two may be interpre-
ted together as the agreement of the parties.’’ (Internal
quotation marks omitted.) Regency Savings Bank v.
Westmark Partners, 59 Conn. App. 160, 165, 756 A.2d
299 (2000), quoting Batter Building Materials Co. v.
Kirschner, 142 Conn. 1, 7, 110 A.2d 464 (1954).
‘‘Where the language of the contract is clear and
unambiguous, the contract is to be given effect
according to its terms. A court will not torture words
to import ambiguity where the ordinary meaning leaves
no room for ambiguity . . . . Similarly, any ambiguity
in a contract must emanate from the language used in
the contract rather than from one party’s subjective
perception of the terms.’’ (Internal quotation marks
omitted.) Tallmadge Bros., Inc. v. Iroquois Gas Trans-
mission System, L.P., supra, 252 Conn. 498. When con-
sidering a claim of ambiguity, the court does ‘‘not decide
which party has the better interpretation, only whether
there is more than one reasonable interpretation of
the contract language at issue. If we conclude that the
language allows for more than one reasonable interpre-
tation, the contract is ambiguous . . . . Conversely,
if the contract is unambiguous, its interpretation and
application is a question of law for the court, permitting
the court to resolve a breach of contract claim on sum-
mary judgment if there is no genuine dispute of material
fact.’’ Salce v. Wolczek, 314 Conn. 675, 683, 104 A.3d
694 (2014).
Of principal concern to the parties is whether Rus-
coni’s signature as ‘‘guarantor’’ on the second amend-
ment, in addition to his separate signature on behalf of
Cardio Express, along with the language of paragraph
5 of the second amendment, makes him personally lia-
ble for the amounts owed by Cardio Express under the
lease. Paragraph 5 states 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.’’ Tolland Meetinghouse
argues in support of its motion for summary judgment
that this language clearly and unambiguously renews
or reactivates the terms of the guaranty agreement to
cover Cardio Express’ lease obligations as of April,
2016, when the second amendment became effective.
Rusconi, on the other hand, argues in opposition to
Tolland Meetinghouse’s motion and in support of his
own motion that paragraph 5 clearly and unambigu-
ously fails to impose any obligation upon him beyond
the original obligations undertaken in the 2007 guaranty
agreement. Under the terms of the original guaranty
agreement, Rusconi had no obligations after May 1,
2012.
Rusconi argues it was clear under the guaranty agree-
ment that it expired after five years and that paragraph
5 of the second amendment could not ‘‘magically resus-
citate an expired guaranty.’’ Acknowledging that Rus-
coni did ‘‘reaffirm’’ his expired guaranty obligations,
Rusconi maintains that he was ‘‘reaffirming a nullity.’’
Because it had expired it ‘‘could not ‘remain’ in full
force and effect.’’ Perhaps recognizing that the law of
contracts presumes contract language is not a ‘‘nullity,’’
Rusconi offers the ‘‘alternative argument’’ that he
merely guaranteed the arrearage amount referenced in
the second amendment. The arrearage payments were
made in full and thus, Rusconi argues, he would still owe
nothing to Tolland Meetinghouse. Rusconi’s alternative
argument is actually an alternative construction of the
contract. At oral argument he maintained that both con-
structions of the contract were ‘‘reasonable.’’ Rusconi’s
arguments, therefore, support a conclusion that the sec-
ond amendment is ambiguous as it pertains to his per-
sonal obligations.1
Tolland Meetinghouse’s argument that the meaning
of paragraph 5 is clear and unambiguous is impaired
by the choice of words in that paragraph. Specifically,
the phrase ‘‘shall remain in full force and effect’’ would
more clearly reflect the intent advocated by Tolland
Meetinghouse if, for example, the agreement provided
instead that the guaranty ‘‘shall be reinstated for the
duration of the lease term.’’ It is only by placing the
language into the context of the circumstances sur-
rounding the second amendment that the meaning of
paragraph 5 becomes clear. ‘‘The intention of the parties
to a contract is to be determined from the language
used interpreted in the light of the situation of the
parties and the circumstances connected with the
transaction.’’ (Emphasis added; internal quotation
marks omitted.) Barnard v. Barnard, 214 Conn. 99,
110, 570 A.2d 690 (1990); Connecticut Housing Finance
Authority v. John Fitch Court Associates Ltd. Partner-
ship, 49 Conn. App. 142, 147, 713 A.2d 900, cert. denied,
247 Conn. 908, 719 A.2d 901 (1998). ‘‘The circumstances
to be considered are those known to the parties when
the [contract] was made.’’ Hatcho Corp. v. Della Pietra,
195 Conn. 18, 20, 485 A.2d 1285 (1985). The surrounding
circumstances in the present case are undisputed and,
under the undisputed circumstances, there is only one
construction of paragraph 5 that gives it any meaning.2
The arrearages that accumulated prior to the execu-
tion of the second amendment began accumulating after
the original guaranty expired. They do not constitute
obligations that were ever within the scope of the origi-
nal guaranty agreement. Thus, by ‘‘reaffirming’’ his obli-
gations under that agreement, Rusconi was not
acknowledging a preexisting responsibility for the
arrearages. Rusconi’s argument that paragraph 5 may
be read consistently with his position that he undertook
no new obligations under paragraph 5, by applying it
only to these prior arrearages, is not reasonable because
it is inconsistent with the undisputed surrounding cir-
cumstances. Instead, the only reasonable construction
of the portion of paragraph 5 where Rusconi ‘‘reaffirms
his obligations in respect to the terms of the Guaranty
dated May 10, 2007,’’ is that the substantive terms of
that agreement are incorporated into whatever is being
agreed to in paragraph 5. Paragraph 5 subsequently
provides that the May 10, 2007 guaranty, with those
terms, ‘‘shall remain in full force and effect.’’ In order
for this phrase to have any practical meaning, it must
refer to obligations under the Cardio Express lease
as to which Rusconi had no responsibility under the
original guaranty agreement, but which are now made
subject to the terms of that guaranty.
Rusconi leans heavily on the provisions of paragraph
2 of the guaranty agreement that limit his guarantee
obligations to the initial five years of the lease. Para-
graph 2 of the guaranty agreement states that, ‘‘[e]ven
if the Lease . . . is modified in any way, the obligations
hereunder of the Guarantor shall terminate at the expi-
ration of the initial five (5) years of the initial Lease
term.’’ It further provides: ‘‘In the event that any agree-
ment or stipulation between Landlord and Tenant shall
extend the time of performance . . . Guarantor shall
continue to be liable upon this Guaranty, except that
the obligations hereunder of Guarantor shall terminate
at the expiration of the initial five years of the Lease
term.’’ Paragraph 11 (j) repeats: ‘‘The term of this Guar-
anty Agreement shall be only for the initial first five
years of the initial Lease term.’’ Rusconi argues that
any incorporation of the terms of the guaranty agree-
ment into the second amendment must also incorporate
these provisions and they clearly limit the term of the
guaranty agreement to the initial five years of the lease.
Any ‘‘reaffirmation’’ of the guaranty agreement also
reaffirms this term limit, according to Rusconi.
These provisions of the original guaranty agreement
clearly prevent modifications to the lease and any other
agreements reached between Tolland Meetinghouse
and Cardio Express in the second amendment from
reinstating or otherwise impacting Rusconi’s obliga-
tions under the guaranty agreement. They do not, how-
ever, prevent Rusconi himself from agreeing to modify,
renew or reactivate his obligations as guarantor. The
question is not whether the lease amendments revived
his obligations as a guarantor, but whether by signing
the second amendment as ‘‘guarantor’’ and agreeing to
the provisions of paragraph 5, Rusconi agreed to revive
his obligations as guarantor. Notably, the guaranty
agreement does not specify any particular mechanism
or other requirements necessary to form an amendment
or modification of that agreement. Consequently, not-
withstanding the term limitations contained in the origi-
nal guaranty agreement, the question remains whether
paragraph 5 of the second amendment clearly and
unambiguously restored Rusconi to the position of guar-
antor of Cardio Express’ obligations under the lease as
amended.
The terms of the original guaranty agreement provide
that Rusconi ‘‘unconditionally and absolutely Guaran-
tees to Landlord the prompt payment, when due, of the
rents and any and all other charges payable under the
Lease . . . . Guarantor unconditionally and absolutely
covenants to Landlord that, if Tenant shall default at
any time in the Covenants to pay rent or any other
charge stipulated in the Lease . . . then Guarantor will
. . . pay the rent of (sic) other charges or arrears
thereof that may remain due . . . and also all damages
stipulated in the Lease. Guarantor shall pay to Landlord,
on demand, all expenses (including reasonable
expenses for attorney’s fees and reasonable charges of
every kind) incidental to, or relating to, the enforcement
of this Guaranty Agreement.’’ These terms apply to the
obligations undertaken by Rusconi in paragraph 5 of the
second amendment and, according to that paragraph
agreed to by Rusconi, they ‘‘remain in full force and
effect.’’
Tolland Meetinghouse’s position that the terms of the
guaranty agreement apply to the outstanding amounts
due under the lease as amended in 2016 is not only
reasonable, it is the only construction of the agreement
stated in paragraph 5 that makes sense under the cir-
cumstances. The second amendment was agreed to in
the context of eviction proceedings that Tolland Meet-
inghouse had initiated by serving a notice to quit, as
referenced in paragraph 7 of the second amendment,
and with the purpose of ‘‘restructuring the amounts
due under the Lease,’’ as stated in the recitals. The
restructuring involved the forgiveness of $22,275.71 in
past due rent and eighteen monthly installments to pay
off the $100,000 balance, conditioned upon the timely
making of those payments, the timely payment of future
rent and the performance of all other lease obligations.
Reading paragraph 5 of the second amendment in con-
nection with the terms of the guaranty agreement, the
only meaningful construction of paragraph 5 is that, in
consideration of the concessions Tolland Meetinghouse
made to Cardio Express, Rusconi agreed to guaranty
the obligations of Cardio Express under the lease as
amended. Granted that the original guaranty agreement
had expired, paragraph 5 can only be understood as a
new guaranty agreement on the same terms and condi-
tions as were agreed under the original guaranty agree-
ment except that the original five year limit, which
was no longer congruous, was superseded by the new
promise to guaranty performance.
Rusconi’s argument revolves around the use of the
word ‘‘remain’’ in paragraph 5. Focusing on the provi-
sion that the ‘‘Guaranty shall remain in full force and
effect,’’ he argues, ‘‘But it was no longer in full force
and effect at that time, and could not ‘remain’ in full
force and effect, as it had previously expired.’’ While
semantically sound, this analysis leads Rusconi himself
to the conclusion that paragraph 5 is merely the reaffir-
mation of a ‘‘nullity’’ because the terms of the guaranty
agreement remained in effect only as to obligations that
no longer existed. At the time the second amendment
was agreed to, Cardio Express’ obligations were all
future obligations under the lease as amended. Para-
graph 5 has no purpose unless it is construed to mean
that the terms of the guaranty agreement remain in
effect as to those future obligations.
‘‘Parties do not ordinarily insert meaningless provi-
sions in their agreements and, therefore, if it is reason-
ably possible to do so, every provision must be given
effect. . . . We are reluctant to conclude that a con-
tractual provision constitutes a meaningless gesture by
the parties.’’ (Citations omitted; internal quotations
omitted.) Dainty Rubbish Service, Inc. v. Beacon Hill
Assn., Inc., 32 Conn. App. 530, 534, 630 A.2d 115 (1993).
Rusconi’s alternative constructions of paragraph 5 vio-
late this ‘‘elementary [principle].’’ Hatcho Corp. v. Della
Pietra, supra, 195 Conn. 20. Rusconi himself character-
izes paragraph five as a ‘‘nullity’’ under his principal
construction, and his alternative construction would
only make him responsible for obligations that had
already been satisfied at the time of the second amend-
ment. The only reasonable construction of paragraph
5 that gives that provision any practical meaning is that
Rusconi agreed to guarantee Cardio Express’ remaining
obligations under the lease at the time the second
amendment was executed. To the extent that this agree-
ment conflicts with the five year term limit provisions
in the original guaranty agreement, it must be under-
stood that paragraph 5 modifies and supersedes those
provisions. ‘‘[T]he rules of construction . . . dictate
giving effect to all the provisions of a contract, constru-
ing it as a whole and reconciling its clauses. . . . Where
two clauses which are apparently inconsistent may be
reconciled by a reasonable construction, that construc-
tion must be given, because it cannot be assumed that
the parties intended to insert inconsistent and repug-
nant provisions.’’ (Citations omitted.) Dugan v. Grzy-
bowski, 165 Conn. 173, 179, 332 A.2d 97 (1973); see
Dainty Rubbish Service, Inc. v. Beacon Hill Assn., Inc.,
supra, 32 Conn. App. 534. The court concludes that
Rusconi clearly and unambiguously agreed to guarantee
the obligations of Cardio Express under the lease as
amended in April, 2016.
Cardio Express does not dispute liability, but does
dispute damages. It must be presumed that Rusconi
disputes damages as well. Tolland Meetinghouse has
documented its damages with an affidavit and support-
ing documents whose admissibility has not been ques-
tioned by the defendants. Neither Cardio Express nor
Rusconi, however, has submitted an affidavit, docu-
ments or testimony establishing an evidentiary basis
for their opposition to Tolland Meetinghouse’s damages
claim. Once a moving party has met its burden to dem-
onstrate that no genuine issue of fact exists, ‘‘the oppos-
ing party must present evidence that demonstrates the
existence of some disputed factual issue.’’ (Internal quo-
tation marks omitted.) Ferri v. Powell-Ferri, supra, 317
Conn. 228. The materials submitted by Tolland Meeting-
house demonstrate clearly what the damages are, and
the defendants have put forward no evidence support-
ing the existence of a genuine dispute over them. If
the defendants wished to ‘‘cross-examine the plaintiff’s
representative’’ on the plaintiff’s evidence before the
issue of damages was adjudicated, they were obliged
to seek the deposition of that representative, which
they did not do.3 The record as it stands on summary
judgment supports not only the construction of the
contract as a matter of law, it also supports the determi-
nation of damages due to the absence of any factual
dispute.
Although the defendants did not create an evidentiary
record upon which to dispute the Tolland Meeting-
house’s damages claims, they did reference certain case
law that bears upon the issue, albeit in the context of
Rusconi’s arguments opposing liability. In 1916 Post
Road Associates, LLC v. Mrs. Green’s of Fairfield, Inc.,
supra, 191 Conn. App. 25, the court held that a lease
guarantor’s obligations did not extend beyond the end
of the lease term because the guarantee was ‘‘limited
to the payment and performance of the tenant’s obliga-
tions under the lease ‘effective as of the date hereof.’ ’’
See also Village Linc Corp. v. Children’s Store, Inc., 31
Conn. App. 652, 658, 626 A.2d 813 (1993). The guaranty
signed by Rusconi is more explicit in this respect by
expressly disclaiming any responsibility on the part of
Rusconi in the event the tenant holds over. Retaining
this limitation is not inconsistent with paragraph 5 of
the second amendment and, therefore, it remains
enforceable. Consequently, the amount of damages
sought from Rusconi must be reduced by the amounts
attributable to the holdover period. The court has calcu-
lated that amount as $42,412.63. Applying that reduction
to the total amount of damages documented by Tolland
Meetinghouse ($276,552.77) yields recoverable dam-
ages in the amount of $234,140.14 on the claim against
Rusconi.
The lease and the guaranty agreement further obli-
gate Cardio Express and Rusconi respectively to pay
expenses, including attorney’s fees, incurred in the
enforcement of the guaranty agreement. Tolland Meet-
inghouse has documented those expenses in the
amount of $20,797.26, with no dispute raised by Cardio
Express or Rusconi, and therefore this amount will be
added to the contract damages.
CONCLUSION
Cardio Express has admitted liability, and there is
no genuine issue of material fact concerning Rusconi’s
obligation to guarantee the performance of Cardio
Express under the lease pursuant to the second amend-
ment. Further, there is no genuine issue of material fact
concerning the amount of damages Tolland Meeting-
house may recover. Rusconi’s motion for summary
judgment is denied. Tolland Meetinghouse’s motion for
summary judgment is granted and judgment shall enter
in favor of Tolland Meetinghouse against Cardio
Express in the amount of $297,350.03 and against Rus-
coni in the amount of $254,937.40. So ordered.
* Affirmed. Tolland Meetinghouse Commons, LLC v. CXF Tolland, LLC,
210 Conn. App. , A.3d (2022).
1
Rusconi would maintain that his two alternative constructions are the
only reasonable constructions, and he is entitled to summary judgment
because he would owe nothing under either construction. As discussed
[subsequently], however, the court disagrees that either of Rusconi’s con-
structions of paragraph 5 are reasonable and concludes that Tolland Meeting-
house’s construction is the only reasonable construction when the undis-
puted circumstances surrounding the making of the agreement are
accounted for.
2
At oral argument, counsel for the defendants was unable to identify any
evidence in addition to that in the record on summary judgment concerning
the surrounding circumstances, explaining that discovery had not been done.
It appears from the defendants’ arguments on summary judgment they
believed discovery was unnecessary. If the defendants had believed discov-
ery was necessary to complete the picture as to the surrounding circum-
stances, it was incumbent upon them to seek an opportunity to pursue
discovery prior to an adjudication of the summary judgment motions, in
accordance with Practice Book §§ 17-45 and 17-47. The factual record, there-
fore, is complete for purposes of construing the contract on summary judg-
ment.
3
See footnote 2 of this opinion.