THE ACCESS AGENCY, INC.
SECOND CONSOLIDATED BLIMPIE CONNECTICUT REALTY, INC. ET AL.
January 5, 2017
from Superior Court, judicial district of Windham, A. Santos,
L. Langhammer, for the appellant (plaintiff).
Richard S. Cody, with whom, on the brief, was Jon B. Chase,
for the appellee (defendant Richard Taras-cio, Jr.).
Lavine, Keller and Beach, Js.
plaintiff, The Access Agency, Inc., appeals from the judgment
of the trial court rendered in favor of the defendant,
Richard Tarascio, Jr. The plaintiff claims the court erred in
(1) finding that a guaranty signed in connection with an
expired lease did not obligate the guarantor under a new
lease and (2) using an exhibit for purposes beyond the
limited purpose for which it was introduced. We affirm the
judgment of the trial court.
to a lease agreement executed in August, 2000, the plaintiff
leased premises at 1325 Main Street in Willimantic (premises)
to Second Consolidated Blimpie Connecticut Realty, Inc.,
(Consolidated Blimpie) for use as a sandwich shop (2000 lease
agreement). The parties introduced into evidence several
documents which together define the business relationships
among the several entities. The seminal document is the lease
agreement between the plaintiff landlord and Consolidated
Blimpie, as tenant. The lease created a tenancy of five
years, from August 1, 2000 until July 31, 2005. The lease
granted to Consolidated Blimpie three options to renew the
lease for three additional five year periods. The lease
expressly incorporated a second document, entitled
‘‘Rider to Lease'' (rider). The lease was
executed in August, 2000, by representatives of the plaintiff
and of Consolidated Blimpie.
rider specifically contemplated the use of the premises as a
Blimpie's franchise, and provided for the subletting of
the premises to a franchisee of Blimpie International, Inc.
The subtenant was required, according to the rider, to
execute a personal guaranty. In the event that the
‘‘store'' was transferred to another
subtenant and the new subtenant signed a personal guaranty,
the ‘‘prior subtenant shall be released from its
guaranty.'' The rider also provided that Consolidated
Blimpie was entitled to assign the lease, and paragraph 7 (b)
provided that an assignment or sublease would not serve to
extinguish the liability of the assignor or sublessor.
rider specifically contemplated that Consolidated Blimpie did
not have assets other than the lease, but was created for the
purpose of negotiating and signing the lease. The rider
provided that the plaintiff could not seek damages from any
party other than the tenant ‘‘and/or, if
appropriate, the sublessee.'' No stockholder or
member of a limited liability company, expressly including
Blimpie International, Inc., could be held liable for any
obligation of the tenant. The rider further provided that
Consolidated Blimpie would be subletting the premises to a
Blimpie's franchisee, and, in the event of any default on
the part of the sublessee, the plaintiff agreed to offer the
tenant a new lease, so that Consolidated Blimpie could sublet
the premises to another Blimpie franchisee.
structure of the arrangement can be gleaned from the rider
and the lease. The tenant, Consolidated Blimpie, was acting
in the interest of Blimpie International, the franchisor.
Consolidated Blimpie effectively insulated itself from
liability by having no assets other than the lease and by
requiring the plaintiff to agree that no stockholders or
members, including Blimpie International, Inc., could be held
liable in damages. Consolidated Blimpie could freely sublet
the premises to Blimpie franchisees, who were to pay rent
directly to the plaintiff and were liable to the plaintiff in
the event of default. In essence, the tenant, acting in the
interest of the franchisor, decided who, as a Blimpie
franchisee, would be in possession of the premises and who
would serve to guarantee Consolidated Blimpie's
obligations to the plaintiff.
first relevant guaranty was executed by the defendant at
approximately the same time as the first lease and rider were
executed. The guaranty referenced the lease between the
plaintiff and Consolidated Blim-pie. The defendant generally
guaranteed payment for liabilities incurred by Consolidated
Blimpie under ‘‘the lease.'' The guaranty
provided that the defendant's potential liability would
‘‘remain . . . payable even though the demised
term or any renewal or extension thereof shall have expired,
'' and an assignment of the lease or any subletting
was not to release the defendant from liability as guarantor.
first lease was renewed in 2005, for a five year period. In
2007, KRES-CT, LLC, (KRES-CT), became the successor, by
merger, to Consolidated Blimpie. The renewed lease lapsed on
July 31, 2010. A series of events took place at the end of
2010: the prior franchisee, Tri-Star Blimpie I, LLC, which
was controlled by the defendant, sold its franchise,
equipment and inventory to Marshall Gebhardt, who in turn
entered into a new guaranty agreement with the plaintiff. The
Gebhardt guaranty is identical inmaterial respects to the
guaranty previously executed by the defendant, except that it
guarantees the obligations of ‘‘KRES-CT, LLC,
successor by merger to [Consolidated Blimpie].'' At
approximately the same time, a ‘‘Renewal of Lease
Agreement'' was entered into by the plaintiff and
KRES-CT. The renewal recited the prior merger of Consolidated
Blimpie and KRES-CT, and generally incorporated the
provisions of the prior leases. KRES-CT represented that it
was the successor to all duties and obligations of the
by letter dated January 6, 2011, the plaintiff was informed
that Gebhardt had bought the franchise and that KRES-CT would
remain liable as tenant. As discussed ...