Gateway Development/East Lyme, LLC v. Duong

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Gateway Development/East Lyme, LLC v. Duong

GATEWAY DEVELOPMENT/EAST LYME, LLC
v. ANH DUONG ET AL.
(AC 46505)
Suarez, Clark and Vertefeuille, Js.

Syllabus

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.

Argued May 13—officially released July 30, 2024
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Gateway Development/East Lyme, LLC v. Duong

Procedural History

Summary process action, brought to the Superior
Court in the judicial district of New London, where the
defendants filed a counterclaim; thereafter, the matter
was tried to the court, Graff, J.; subsequently, the defen-
dants withdrew their counterclaim; judgment for the
plaintiff, from which the defendants appealed to this
court. Affirmed.
Keith Yagaloff, for the appellants (defendants).
Alexa Massad Powers, with whom, on the brief, was
Jason B. Burdick, for the appellee (plaintiff).
Opinion

VERTEFEUILLE, J. In this summary process action,
the plaintiff, Gateway Development/East Lyme, LLC,
leased property located at 295 Flanders Road in East
Lyme (premises) and subleased the premises to the
defendants, Anh Duong doing business as Daddy’s Noo-
dle Bar and Daddy’s Noodle Bar 2, LLC. The defendants
appeal from the trial court’s judgment of possession
rendered in favor of the plaintiff. It is undisputed that
the defendants failed to pay rent in a timely manner. On
appeal, the defendants claim that the court improperly
concluded that the plaintiff was not required to provide
them with a pretermination notice and an opportunity
to cure their default for nonpayment of rent within
ten days of such notice. We disagree and, accordingly,
affirm the judgment of the trial court.
The record reveals the following facts and procedural
history that are relevant to our resolution of the defen-
dants’ appeal. The plaintiff subleased the premises to
the defendants beginning in January, 2019.1 The defen-
dants occupied the premises and agreed to pay $6829.54
1
The plaintiff initially subleased the premises only to the defendant Anh
Duong doing business as Daddy’s Noodle Bar pursuant to a sublease agree-
ment dated January 9, 2019. On September 12, 2022, in a second amendment
to the sublease agreement, the parties agreed that the defendant Daddy’s
Noodle Bar 2, LLC, would become a cosublessee that was jointly and sever-
ally liable for the obligations imposed under the sublease agreement.
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per month for rent, due on the first day of each month.
The defendants failed to pay the rent due on November
1, 2022. On November 11, 2022, the plaintiff sent the
defendants a notice of cancellation of the lease, and,
on November 14, 2022, the plaintiff served the defen-
dants with a notice to quit possession on the ground
of nonpayment of rent.
Although the notice to quit instructed the defendants
to vacate the property by November 22, 2022, the defen-
dants did not quit possession. The plaintiff served the
defendants with a summary process summons and com-
plaint on November 28, 2022, seeking immediate posses-
sion of the premises. In response, the defendants filed
an answer and special defenses to the plaintiff’s com-
plaint, asserting, inter alia, that the plaintiff’s notice to
quit was defective and that they had lawfully tendered
rent.2 Specifically, the defendants argued that the sub-
lease agreement required the plaintiff to afford them a
ten day notice to cure their default before serving them
with a notice to quit. The defendants further argued that
the plaintiff improperly refused to accept a payment of
rent that they had tendered on November 16, 2022,
which they contended would have been within the ten
day cure period.
The defendants specifically relied on paragraph 21
of the sublease agreement, which provides in relevant
part: ‘‘Any of the following occurrences shall constitute
a default under this Sublease . . . Failure of Sublessee
to pay any installment of rent, reimbursements, or any
other charge within ten (10) days after the same is due
and payable . . . Any breach by Sublessee to observe
or perform any of its other obligations under this Sub-
lease, which shall continue for ten (10) days after notice
in writing to Sublessee of such default, and in connec-
tion with which Sublessee shall not have in good faith
2
The defendants also filed a counterclaim, which subsequently was
marked ‘‘off’’ by agreement of the parties and is not at issue in this appeal.
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commenced performance if full performance cannot be
reasonably had within the ten (10) day period . . . .
‘‘In the event Sublessee shall fail to pay its rent within
ten (10) days after the same shall be due and payable,
Sublessor shall have the right, without prior notice to
the Sublessee, to immediately initiate any and all legal
action to recover possession of the Premises, and to
terminate this Sublease in the manner provided by law
relating to summary process. Such right shall be in
addition to any other rights to which Sublessor is enti-
tled by law or by the other terms of this Sublease.
‘‘Upon the occurrence of any one or more of such
events, and upon Sublessor serving a written ten (10)
days notice of cancellation of this Sublease upon Sub-
lessee and upon the expiration of such ten (10) days,
this Sublease and the terms thereunder shall end and
expire as fully and completely as if the date of expiration
of such ten (10) day period herein definitely fixed for
the end and expiration of this Sublease and Sublessee
shall then quit and surrender the Premises to Sublessor,
but Sublessee shall remain liable as hereinafter pro-
vided. . . .’’
In their pretrial brief, the defendants argued that, in
addition to the language of the agreement, ‘‘[t]he course
of performance by the parties demonstrated that [para-
graph] 21 required notice and a ten day cure period,
including for nonpayment of rent.’’
A bench trial was held on April 5, 2023. Copies of
the sublease agreement and subsequent amendments
to that agreement were admitted into evidence. In addi-
tion, the plaintiff presented testimony from Mara Hen-
derson King, who worked as the plaintiff’s lease admin-
istrator. King testified, in relevant part, that the
defendants’ rental payments were ‘‘habitually late’’ and
they had paid rent within the first ten days of the month
on only eight occasions since the inception of the lease
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in January, 2019. She also testified that she typically
sent the defendants a ‘‘notice of default’’ with a ten day
right to cure such default, and she would routinely
accept the late payments that followed. She explained
that the plaintiff would ‘‘try to be as accommodating
to [its] tenants as possible,’’ which is why she typically
provided a notice of default with a cure period, regard-
less of whether it was required under the lease. When
the defendants failed to pay their November, 2022 rent
in a timely fashion, King sent the notice of cancellation
and issued the notice to quit, rather than providing a
notice of default with a cure period, because ‘‘[p]atience
ha[d] been worn way too thin.’’ King further testified
as to her understanding of what was required under
the terms of the lease. Specifically, she testified that,
pursuant to paragraph 21 of the sublease agreement,3
a pretermination notice was not required when the
claimed default was the nonpayment of rent. Instead,
a notice of default with a ten day cure period was
required with respect to the other events of default
listed in the lease.4
The defendants presented testimony from Peter Tran,
who had a personal relationship with Duong. Tran han-
dled communications with King about the lease on
behalf of Duong. Tran testified that the plaintiff
accepted many late rental payments from the defen-
dants after providing them with a ten day period to
cure their default and, on the basis of the notices of
default they previously had received, he believed the
defendants had a right to cure under the terms of the
lease. The defendants also submitted documentary evi-
dence to the court, including two letters sent from King
to Duong dated May 11, 2020, and October 31, 2022.
3
The language of paragraph 21 of the sublease agreement is set forth
previously in this opinion.
4
Subsections (a) through (f) of paragraph 21 of the sublease agreement
list various events that constitute defaults under the lease.
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The letters provided the defendants with notice of cer-
tain prior defaults, including the nonpayment of rent
and multiple bounced checks, and gave the defendants
ten days to cure such defaults.

At the conclusion of trial, the defendants’ counsel
argued that the foregoing evidence reflected the parties’
course of performance5 and that such evidence could
be used in two ways: (1) it could serve as evidence of
the intent of the parties in the court’s interpretation of
the sublease agreement, and (2) it could demonstrate
a modification of the sublease agreement.

In an order dated April 12, 2023, the court, Graff, J.,
found that the defendants had breached the sublease
agreement by nonpayment of rent and 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. The
court explained: ‘‘It is clear that the terms of the lease
in the aforementioned paragraph 21 do not require a
ten day notice to cure period for the failure to pay rent.
While there is a notice to cure provision, this provision
does not apply to the failure to pay rent. The lease
permits that when there is a failure to pay rent, the
landlord may take possession of the premises as well
as take advantage of other legal remedies available.

‘‘A landlord cannot commence an eviction without
first complying with the notice and compliance provi-
sions of a lease. . . . Here, the terms of the lease do
not require a ten day notice to cure period. Moreover,
the court finds that the notice to quit which is dated
November 29, 2022, is sufficient. . . . The plaintiff has
5
The defendants have used the terms ‘‘course of performance’’ and ‘‘course
of conduct’’ interchangeably both before the trial court and on appeal.
For purposes of consistency, we use the term ‘‘course of performance’’
throughout this opinion.
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met its burden of showing that there has been nonpay-
ment of rent in violation of the lease terms.’’ (Citations
omitted.) Accordingly, the court rendered a judgment
of possession in favor of the plaintiff. This appeal fol-
lowed.
On appeal, the defendants claim that the court
improperly concluded that the plaintiff was not required
to provide them with a pretermination notice and a ten
day cure period prior to serving them with a notice to
quit. Specifically, the defendants contend that the court
incorrectly limited its analysis to the terms of the par-
ties’ sublease agreement and that it should have consid-
ered evidence of the parties’ course of performance (1)
as evidence of the parties’ understanding or intended
interpretation of the agreement, or (2) to find that the
parties had modified the terms of their agreement
through that course of performance.
As an initial matter, we note that the court did not
make any specific factual findings regarding whether
the defendants had established a course of performance
between the parties, and it did not explicitly address
the defendants’ arguments related to the parties’ alleged
course of performance.6 Nevertheless, in reaching its
conclusion, the court necessarily rejected the defen-
dants’ arguments concerning course of performance;
6
To the extent that the defendants contend that the court entirely failed
to consider their arguments regarding the parties’ course of performance,
we disagree. We do not presume error on the part of the trial court. See
United Cleaning & Restoration, LLC v. Bank of America, N.A., 225 Conn.
App. 702, 713 n.7, A.3d (2024). In addition, at a hearing held on May
2, 2023, to address the defendants’ counterclaim; see footnote 2 of this
opinion; the court confirmed that it had considered the defendants’ argument
regarding the parties’ course of performance. Specifically, the defendants’
counsel told the court: ‘‘The only thing I was going to ask, Your Honor.
. . . I think I know the answer, but I just wanted to make sure that the course
of performance issues that were addressed in the hearing—the original
hearing—were addressed by Your Honor when you made your decision on
the merits of the motion. And I believe you did, Your Honor.’’ The court
responded: ‘‘Yes.’’
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see Russo v. Thornton, 217 Conn. App. 553, 567 n.18,
290 A.3d 387 (court ‘‘necessarily rejected’’ argument
that it did not explicitly address), cert. denied, 346 Conn.
921, 291 A.3d 608 (2023); T & M Building Co. v. Has-
tings, 194 Conn. App. 532, 545–46, 221 A.3d 857 (2019)
(same), cert. denied, 334 Conn. 926, 224 A.3d 162 (2020);
and ‘‘we will presume, in the absence of an articulation,
[that the] trial court acted correctly, meaning that it
undertook a proper analysis of the law and made what-
ever findings of the facts were necessary.’’ (Emphasis
omitted.) Zaniewski v. Zaniewski, 190 Conn. App. 386,
396, 210 A.3d 620 (2019). With these principles in mind,
we turn to the defendants’ claims.
I
First, the defendants contend that the court improp-
erly relied solely on the language of the parties’ sublease
agreement and failed to consider the evidence of the
parties’ course of performance in its interpretation of
the agreement. Specifically, the defendants argue that
paragraph 21 of the sublease agreement was ambiguous
as to whether a pretermination notice and a ten day
cure period was required in the context of a default for
nonpayment of rent and, therefore, the court should
have considered the parties’ course of performance as
evidence of the parties’ understanding of the terms of
the lease. We are not persuaded.
We begin our analysis with the applicable standard
of review. The defendants’ claim ‘‘presents a question
of contract interpretation because a lease is a contract,
and, therefore, it is subject to the same rules of con-
struction as other contracts. . . . 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 . . . commit-
ments is a question of law [over which our review is
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Gateway Development/East Lyme, LLC v. Duong

plenary].’’ (Internal quotation marks omitted.) Carroll v.
Yankwitt, 203 Conn. App. 449, 487, 250 A.3d 696 (2021).
‘‘The intent of the parties as expressed in [writing]
is determined from the language used interpreted in
the light of the situation of the parties and the circum-
stances 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 common, natu-
ral, and ordinary meaning and usage where it can be
sensibly applied to the subject matter of the [writing].’’
(Internal quotation marks omitted.) 19 Perry Street,
LLC v. Unionville Water Co., 294 Conn. 611, 623, 987
A.2d 1009 (2010).
‘‘Where the language of the [writing] is clear and
unambiguous, the [writing] is to be given effect accord-
ing to its terms.’’ (Internal quotation marks omitted.)
Electrical Contractors, Inc. v. 50 Morgan Hospitality
Group, LLC, 211 Conn. App. 724, 731, 273 A.3d 726
(2022); see also Bellini v. Patterson Oil Co., 156 Conn.
App. 158, 163, 111 A.3d 987 (2015) (‘‘[w]hen only one
interpretation of a contract is possible, the court need
not look outside the four corners of the contract’’ (inter-
nal quotation marks omitted)). ‘‘If, however, the con-
tractual language is found to be ambiguous, [s]uch
ambiguity permits the trial court’s consideration of
extrinsic evidence as to the conduct of the parties.’’
(Internal quotation marks omitted.) Heyman Associ-
ates No. 5, L.P. v. FelCor TRS Guarantor, L.P., 153
Conn. App. 387, 403, 102 A.3d 87, cert. denied, 315 Conn.
901, 104 A.3d 106 (2014).
An agreement is ambiguous ‘‘[w]here the language
of [that] agreement is susceptible to more than one
reasonable interpretation . . . .’’ (Internal quotation
marks omitted.) Cody Real Estate, LLC v. G & H Cater-
ing, Inc., 219 Conn. App. 773, 784, 296 A.3d 214, cert.
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denied, 348 Conn. 910, 303 A.3d 11 (2023). ‘‘The court
will not torture words to impart ambiguity where ordi-
nary meaning leaves no room for ambiguity. . . . More-
over, the mere fact that the parties advance different
interpretations of the language in question does not
necessitate a conclusion that the language is ambigu-
ous. . . . [A]ny ambiguity in a contract must emanate
from the language used by the parties. . . . The con-
tract must be viewed in its entirety, with each provision
read in light of the other provisions . . . and every
provision must be given effect if it is possible to do
so.’’ (Internal quotation marks omitted.) Heyman Asso-
ciates No. 5, L.P. v. FelCor TRS Guarantor, L.P., supra,
153 Conn. App. 403–404.

In the present case, we conclude that the plain and
unambiguous language of paragraph 21 of the sublease
agreement makes clear that a pretermination notice
and a ten day cure period were not required in the
context of a default for nonpayment of rent. Paragraph
21 specifically provides that, if the defendants fail to
pay rent within ten days after it is due, the plaintiff may
‘‘immediately initiate’’ legal action to recover posses-
sion of the premises, ‘‘without prior notice’’ to the defen-
dants.

Although paragraph 21 proceeds to require the plain-
tiff to serve a ‘‘written ten (10) days notice of cancella-
tion’’ before serving the defendants with a notice to
quit ‘‘[u]pon the occurrence of any one or more of such
events [of default],’’ it is clear that this more general
portion of paragraph 21, when viewed in context, does
not apply to a default for nonpayment of rent. Instead,
given the immediately preceding portion of paragraph
21 that specifically addresses the nonpayment of rent,
the notice provision can only be read reasonably to
apply to the other events of default listed in paragraph
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21. See Rader v. Valeri, 223 Conn. App. 243, 268–69,
7

308 A.3d 66 (more specific provisions of agreement
control over standardized and more general ones), cert.
denied, 348 Conn. 959, 312 A.3d 37 (2024); Grogan v.
Penza, 194 Conn. App. 72, 81, 220 A.3d 147 (2019) (‘‘[i]t
has been well settled that the particular language of a
contract must prevail over the general’’ (internal quota-
tion marks omitted)).
Because the language of the sublease agreement is
unambiguous with respect to the consequences of default
for the nonpayment of rent, the court correctly declined
to consider evidence of the parties’ course of perfor-
mance in its interpretation of the agreement and prop-
erly concluded that the language of the lease controls.
See 19 Perry Street, LLC v. Unionville Water Co., supra,
294 Conn. 625 (declining to consider conduct of parties
in construing contract and concluding that ‘‘the lan-
guage of the lease controls’’); Heyman Associates No.
5, L.P. v. FelCor TRS Guarantor, L.P., supra, 153 Conn.
App. 403 (consideration of parties’ conduct permitted
in contract interpretation only when contract is ambigu-
ous); see also Poole v. Waterbury, 266 Conn. 68, 97, 831
7
In addition to the nonpayment of rent, paragraph 21 provides that the
following occurrences shall constitute a default under the sublease: ‘‘Any
breach by Sublessee to observe or perform any of its other obligations under
this Sublease, which shall continue for ten (10) days after notice in writing
to Sublessee of such default, and in connection with which Sublessee shall
not have in good faith commenced performance if full performance cannot
be reasonably had within the ten (10) day period . . . [t]o the extent permit-
ted by law, Sublessee becoming insolvent or bankrupt, or making an assess-
ment for the benefit of creditors, or the commencement of any proceeding
under any bankruptcy or insolvency law by or against Sublessee if such
proceeding or case is not discharged within sixty (60) days . . . Sublessee
vacating or abandoning the Premises (failure to occupy and operate the
premises for ten (10) consecutive days shall be deemed an abandonment)
or ceasing its use of the Premises for the purpose set forth above . . . [t]he
transfer, assignment, encumbrance or sale of this Sublease or Sublessee’s
right thereunder by Sublessee, except in any manner herein permitted . . .
[and] [a]ny breach by the Sublessee to observe or perform its obligation
under this Sublease.’’
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A.2d 211 (2003); Perez v. Carlevaro, 158 Conn. App.
716, 722, 120 A.3d 1265 (2015). Accordingly, the court
properly limited its analysis to the written terms of the
agreement.
II
We next consider the defendants’ contention that the
court improperly failed to find that the parties’ course
of performance modified the terms of their sublease
agreement to require the plaintiff to provide the defen-
dants with a pretermination notice and a ten day cure
period for the nonpayment of rent. The plaintiff argues
that a written modification clause in the parties’ agree-
ment precluded a finding of a modification based on
any course of performance between the parties. We
agree with the plaintiff.
‘‘For a valid modification to exist, there must be
mutual assent to the meaning and conditions of the
modification and the parties must assent to the same
thing in the same sense. . . . Modification of a con-
tract may be inferred from the attendant circum-
stances and conduct of the parties.’’ (Emphasis in origi-
nal; internal quotation marks omitted.) Alarmax
Distributors, Inc. v. New Canaan Alarm Co., 141 Conn.
App. 319, 329, 61 A.3d 1142 (2013). ‘‘A modification of
an agreement must be supported by valid consideration
and requires a party to do, or promise to do, something
further than, or different from, that which he is already
bound to do.’’ (Internal quotation marks omitted.) Har-
ley v. Indian Spring Land Co., 123 Conn. App. 800,
822, 3 A.3d 992 (2010).
‘‘The question of whether the parties to a contract
agreed to a modification of its terms is ordinarily an
issue of fact.’’ RBC Nice Bearings, Inc. v. SKF USA,
Inc., 146 Conn. App. 288, 298, 78 A.3d 195 (2013), rev’d
in part on other grounds, 318 Conn. 737, 123 A.3d 417
(2015). ‘‘The resolution of conflicting factual claims falls
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within the province of the trial court. . . . The trial
court’s findings are binding upon this court unless they
are clearly erroneous in light of the evidence and the
pleadings in the record as a whole. . . . We cannot
retry the facts or pass on the credibility of the witness.’’
(Internal quotation marks omitted.) Alarmax Distribu-
tors, Inc. v. New Canaan Alarm Co., supra, 141 Conn.
App. 329–30.
The question of whether the parties’ agreement lim-
ited their ability to make a modification without a writ-
ing, however, presents a legal issue subject to plenary
review. See RBC Nice Bearings, Inc. v. SKF USA, Inc.,
supra, 146 Conn. App. 298. As indicated previously in
this opinion, ‘‘[a] contract must be construed to effectu-
ate 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. . . . Where the language of the contract
is clear and unambiguous, the contract is to be given
effect according to its terms. . . . Although ordinarily
the question of contract interpretation, being a question
of the parties’ intent, is a question of fact . . . [w]here
there is definitive contract language, the determination
of what the parties intended by their contractual com-
mitments is a question of law. . . . When . . . the trial
court draws conclusions of law, our review is plenary
and we must decide whether its conclusions are legally
and logically correct . . . .’’ (Internal quotation marks
omitted.) Id., 298–99.
In the present case, the court did not make a finding
that the parties intended to modify their agreement.
The defendants argue that it was ‘‘clearly erroneous for
the trial court to fail to find that the plaintiff’s conduct
gave rise to a modification of the lease’’ on the basis
of the ‘‘uncontroverted evidence establishing the course
of performance . . . .’’
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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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16 ,0 0 Conn. App. 1
Gateway Development/East Lyme, LLC v. Duong

that the parties modified their agreement through their
course of performance, which claim was unavailing in
RBC Nice Bearings, Inc. See id.; see also id., 750–51
(explaining differences between waiver and modifica-
tion). As in RBC Nice Bearings, Inc., the parties’ sub-
lease agreement in the present case contains a written
modification clause. Specifically, paragraph 43 of the
sublease agreement sets forth that ‘‘[t]his Sublease con-
tains the entire agreement between the parties and shall
not be modified in any manner except by an instrument
in writing executed by the parties, their administrators,
executors, successors or assigns.’’ Thus, like in RBC
Nice Bearings, Inc., ‘‘any modification of the . . .
agreement by the parties’ course of performance was
barred by the contractual provision requiring that modi-
fications be in writing.’’9 RBC Nice Bearings, Inc. v.
SKF USA, Inc., supra, 318 Conn. 758. Accordingly, 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 pretermi-
nation notice and an opportunity to cure their default.
The judgment is affirmed.
In this opinion the other judges concurred.

In addition, we note that subsection (d) of paragraph 3 of the sublease
agreement in the present case contains a waiver clause, which provides:
‘‘Any extension of time for the payment of any installment of rent shall not
be a waiver of the rights of [the plaintiff] to insist on having all other
payments of rent made in the manner and the time herein specified. . . .’’
(Emphasis added.)
9
The defendants do not argue that the letters from King to Duong—or
any other writing—would satisfy the written modification clause.