When does a commercial lease guarantor escape liability for treble damages and surrender-based cutoffs? 628 Park Avenue, LLC v. Miller Explained

Background and facts

628 Park Avenue LLC leased commercial space in Park City to Church LLC dba Church Public House, with Robert Miller personally guaranteeing Church’s lease obligations. After Church defaulted on rent in mid-2017, the parties executed a court-ordered eviction followed by two documents: a Return of Possession and a short-term License Agreement permitting Church to remain through August 18, 2017, in exchange for $35,000. Park Avenue never served written notice of lease termination. Church ultimately vacated, and Park Avenue sued Miller under the guaranty for over $2 million in damages.

Key legal issues

Three issues reached the Utah Court of Appeals. First, whether the Return of Possession and License Agreement constituted a surrender and acceptance as a matter of law, cutting off damages after August 12, 2017. Second, whether the guaranty’s language—covering “losses, damages, or liabilities of any kind or nature incurred by” Park Avenue—obligated Miller to pay statutory treble damages under Utah Code section 78B-6-811(3). Third, whether Park Avenue’s rule 26(a)(1)(C) damages disclosure was adequate, and if not, what evidence remained admissible.

Court’s analysis and holding

On surrender and acceptance, the court reiterated that this common law doctrine presents a fact-intensive inquiry for the fact-finder and that summary judgment should be granted with great caution. The court found conflicting evidence: the License Agreement repeatedly called the lease “terminated” and Park Avenue’s email referenced “reviving” the lease, but the Return of Possession expressly preserved all of Park Avenue’s rights under the lease and Park Avenue’s manager declared no intent to accept a surrender. Because the evidence was not “so one-sided that a reasonable factfinder could reach but one conclusion,” summary judgment was improper.

On treble damages, the court found the term “incurred” in the guaranty ambiguous. The district court’s reading—that treble damages are a statutory penalty rather than a loss “incurred” by the landlord—was reasonable under plain meaning. But the Lease itself used “incurred” to encompass all amounts “permitted from time to time by the laws of the State of Utah,” and because the guaranty was executed contemporaneously with and attached to the lease, construing the two instruments in harmony was equally reasonable. Contractual ambiguity converts the issue into a question of fact for the finder of fact, precluding summary judgment.

On damages disclosure, the court affirmed that Park Avenue’s disclosure of a lump-sum figure without revealing the underlying computation violated rule 26(a)(1)(C). However, applying Williams v. Anderson and Bad Ass Coffee Co. v. Royal Aloha International LLC, the court held that four components were adequately disclosed and readily calculable: (1) unpaid rent for April–August 2017; (2) unpaid minimum future rent through the end of the lease term; (3) treble damages on unpaid rent from May 15 through June 2, 2017; and (4) the base amount still owed under the Forbearance Agreement. The court reversed exclusion of those components and remanded for further proceedings.

Practice implications

Practitioners advising landlords should ensure that any post-eviction agreements contain unambiguous language regarding lease termination or continuation—boilerplate rights-reservation clauses create fact questions that defeat summary judgment. On guaranty drafting, explicitly address whether the guarantor’s obligation extends to statutory multiplied damages. Most critically, rule 26(a)(1)(C) demands more than a single dollar figure and a document dump: disclose the formula, the inputs, and how each category of claimed damages was computed. Failing to do so risks exclusion of all but the most facially obvious damages components, even years into litigation.