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

Citation: Gateway Development/East Lyme, LLC v. Duong, 227 Conn. App. 38 (2024)
Parent Document: Gateway Development/East Lyme, LLC v. Duong, 227 Conn. App. 38 (2024)
Jurisdiction: Connecticut (state)
Effective Date: 2024-07-30
Original Source: https://www.courtlistener.com/opinion/10131818/gateway-developmenteast-lyme-l... ↗

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In support of their argument, the defendants rely on
RBC Nice Bearings, Inc. v. SKF USA, Inc., 318 Conn.
737, 123 A.3d 417 (2015). That decision, however, under-
mines, rather than supports, the defendants’ position.
In that case, the trial court concluded that the evidence
presented clearly demonstrated that an annual mini-
mum purchase requirement set forth in an agreement
between the parties had been modified by the conduct
of the parties. Id., 745. In the alternative, the court found
that, for certain years, the plaintiffs waived their right
to enforce that minimum purchase requirement. Id. On
appeal, this court reversed the judgment of the trial
court, concluding in relevant part that (1) modification
based on the parties’ course of performance was barred
by a written modification clause in the parties’ agree-
ment, and (2) the trial court’s finding of waiver was
clearly erroneous. Id., 746. Our Supreme Court reversed
in part the judgment of this court on the issue of waiver,
concluding that ‘‘[t]he parties’ undisputed course of
performance and course of dealing . . . adequately
support[ed] the trial court’s finding of continuing
waiver.’’ Id., 757. As to the issue of modification, how-
ever, our Supreme Court agreed with this court’s analy-
sis, explaining: ‘‘The Appellate Court properly rejected
[the trial court’s finding that the parties modified their
agreement], concluding, as a matter of law, that any
modification of the . . . agreement by the parties’
course of performance was barred by the contractual
provision requiring that modifications be in writing.’’
Id., 758.
In the present case, the defendants do not claim that
the plaintiff waived its right to enforce any of the terms
of the sublease agreement governing the payment or
nonpayment of rent.8 Instead, the defendants contend
8
The defendants’ appellate briefs contain some discussion of waiver in
the context of summarizing RBC Nice Bearings, Inc. v. SKF USA, Inc.,
supra, 318 Conn. 737. At oral argument before this court, however, the
defendants’ counsel confirmed that the defendants’ claim is one of modifica-
tion, not waiver.
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