Gateway Development/East Lyme, LLC v. Duong, 227 Conn. App. 38 (2024)

The plaintiff subleased certain real property to the defendants. After the
             defendants failed to make a rent payment, the plaintiff sent the defen-
             dants a notice of cancellation of the lease and served them with a notice
             to quit possession on the ground of nonpayment of rent. When the
             defendants did not quit possession, the plaintiff served the defendants
             with a summary process summons and complaint. The sublease agree-
             ment contained a clause providing that the agreement could not be
             modified in any manner except by an instrument in writing executed
             by the parties. At trial, the plaintiff presented testimony from the plain-
             tiff’s lease administrator, who testified that the defendants’ rental pay-
             ments were habitually late, that she typically sent the defendants a
             notice of default with a ten day right to cure such default, and that she
             would routinely accept the late payments that followed but that she
             had lost patience with the defendants. The court found that the defen-
             dants had breached the sublease agreement by nonpayment of rent,
             rejected the defendants’ argument that the sublease agreement required
             the plaintiff to provide the defendants with a pretermination notice and
             a ten day right to cure, and rendered a judgment of possession for the
             plaintiff. On the defendants’ appeal to this court, held:
         1. The defendants could not prevail on their claim that the trial court should
             have considered evidence of the parties’ course of performance in its
             interpretation of the sublease agreement and improperly concluded that
             the language of the lease controlled; the plain and unambiguous language
             of the sublease agreement made clear that a pretermination notice and
             a ten day cure period were not required in the context of a default for
             nonpayment of rent and that such notice applied only to other specified
             events of default.
         2. The defendants could not prevail on their claim that the parties’ course
             of performance modified the terms of the sublease agreement; the trial
             court properly relied on the written terms of the sublease agreement
             to conclude that the plaintiff was not required to provide the defendants
             with a pretermination notice and an opportunity to cure their default
             for nonpayment of rent, as any modification of the agreement by the
             parties’ course of performance was barred by the contractual provision
             requiring that modifications be in writing.