This section contains the nature of the case and procedural background.

P entered into a lease agreement with D, where D would use and occupy premises for a ten-year period beginning on January 1, 2019. The agreement provides that Ds 'shall use the premises for the operation of a restaurant and bar selling food, beverages, and related accessories, together with uses incidental thereto, and for no other purpose. . . .' D was obligated to pay both base monthly and percentage rent, with additional rent to cover its apportioned amounts of P's insurance, common area expenses and real estate taxes, commencing on July 1, 2019, and concluding on December 31, 2028. Ahmetaj, who is the managing member of D, executed a guarantee agreement pursuant to which he personally guaranteed all of D's obligations under the lease agreement. In December 2019, P purchased six commercial properties, including the premises, from P, which assigned all of its rights and obligations under the lease and guarantee agreements for those properties to P. D operated Blackstones Bistro (bistro) on the premises. Most of the bistro's business came during dinner service when an average seating would generate a bill of $100 to $200 per patron, given bar service and dishes priced on average between $35 and $60 each. The upscale bar supported the restaurant side of the business and occupied approximately 40 percent of the total rental space. Prior to the WuHan pandemic, the bar was busy and could accommodate sixty customers by providing more than twenty-eight seats at the bar plus standing room for crowds. Ds defaulted on their payment obligations in January 2020, by making only half the required monthly rent payment; they cured that default in February 2020, by making payment within two weeks of receiving a default notice. Ds then defaulted on their February 2020 obligations, which they cured one week later. Ahmetaj met with Adam Greenbaum, P's manager, to discuss the defaults; Ahmetaj informed Greenbaum that the defaults resulted from slower winter business and would cease when business improved during the warmer months. Ahmetaj was surprised that P, unlike TR Sono, did not accept late payments given the seasonal nature of the restaurant business. Ds defaulted a third time the next month, and P sent them a default notice on March 11, 2020. On March 10, 2020, Governor Lamont issued a Declaration of Public Health and Civil Preparedness Emergencies (declaration) because of the WuHan flu outbreak. An order closed bars and restaurants to in-person business through May 20, 2020. In May restaurants were allowed to offer outdoor dining and on-premises alcohol consumption beginning on May 20, 2020, and, on June 16, 2020. A subsequent Executive Order allowed restaurants to resume providing indoor dining at 50 percent capacity. The bistro closed between March 11 and May 27, 2020. D had no income and Ahmetaj testified that it was not profitable when the bistro attempted to do curbside delivery. D reopened the bistro for outdoor dining on May 28, 2020. Subsequently, during the summer of 2020, the bistro was open for indoor dining. The nine-foot social distancing requirements meant instead of 140 patrons just twenty-five individuals, including staff, could be inside. Eventually, P served a notice to quit, demanding that D vacate the premises on or before June 12, 2020. D vacated the premises by September 11, 2020. On November 30, 2020, P entered into a ten-year lease agreement for the premises with a new tenant, Sono Boil, Inc. (Sono Boil). Sono Boil planned to renovate the premises and operate a full-service restaurant there. The rent for Sono Boil's lease was $12,500 per month, including base rent and the additional rent for reimbursement of property taxes and common area expenses, which was less than Ds had been paying. P provided Sono Boil with a concession of free rent for the first six months of the lease. P sued Ds seeking money damages. Ds various special defenses, including the doctrines of the impossibility of performance and frustration of contract, relying on the purpose of the lease agreement, namely, ''the operation of a first-class restaurant and bar,'' and the adverse effects of the various executive orders on the restaurant and hospitality industry. Ds claimed that the executive orders rendered the lease agreement illegal as a matter of law. The trial court found for P. It then concluded that Ds had not proven, by a fair preponderance of the evidence, that the executive orders rendered the operation of a restaurant impossible, impracticable, or illegal, and had not frustrated the purpose of the lease agreement. It noted that Section 4 (d) of the lease agreement required the defendants to bear the risk of complying with applicable laws and regulations. The trial court concluded that the 'pandemic . . . was certainly an unforeseen event, but compliance with the governmental orders in response thereto was an expense allocated to Ds in the lease [agreement]. It held that none of the executive orders specifically made the operation of a restaurant 'illegal' or 'impossible and only Ds' profitability for continuing a restaurant was frustrated. Ds appealed.

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