Wren v. MacPherson Interiors, Inc. (dissenting)
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****************************************************** The officially released date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the officially released date appearing in the opinion. In no event will any such motions be accepted before the officially released date. All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ****************************************************** Wren v. MacPherson Interiors, Inc. DISSENT FLYNN, J., concurring in part and dissenting in part. I respectfully dissent in part from the result reached by the majority as to the defendant individual guarantors, Robert and Roger Roth and Robert Allred. These three individual guarantors of the corporate debt of RAR, Inc., signed a written guarantee. Paragraph three of the guarantee specifies that the guarantors were to guarantee payment of $180,000 of the consideration recited and to pay upon demand the balance then due after any default. Paragraph five reduced the amount of the guarantee by each debt payment made after January 1, 1988, unless RAR, Inc., was in default of any provision of the agreement on that date. This reference to the agreement is to a consultation and noncompete agreement which had been signed on the same day as the guarantee. It provided for two events of default. The first was triggered if payments on the debt were not made within a ten day grace period following the due date. The second, if certified financial statements were not delivered to the plaintiffs within twenty days of the end of each quarter. The parties were not in dispute about the number of cash payments made under the consultation agreement. The plaintiff Barbara Wren testified, however, that RAR, Inc., had never provided the required financial statements properly certified. Failure to do so would constitute the second possible event of default under the consultation agreement. The significance of the date of default is that the defendant individual guarantors were to be credited for each cash payment made on the consultation agreement debt with an aliquot reduction in the $180,000 amount guaranteed unless RAR, Inc., had defaulted on the obligation to furnish financial statements. For the guarantors to receive no credits against the guarantee, they would have to have been in default from the January 1, 1988 date set forth in the guarantee agreement. The court did not make such a finding. Instead, in its articulation, it expressly found that the default occurred [i]n May of 1990 . . . . Accordingly, I would affirm only so much of the judgment against the guarantors as represents the balance of the $180,000 due after crediting all post-January 1, 1988 payments made through May, 1990, together with the reasonable costs of enforcement of the guarantee.
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