Penelko, Inc. v. John Price Associates, Inc.

OAKS, Justice

(dissenting in part):

I dissent from the partial reversal and remand of the cross-appeal to allow the lessee to recover attorney fees from the transferee of the lessor. In my view, the district court correctly denied attorney fees on the authority of Latses v. Nick Floor, Inc., 99 Utah 214, 104 P.2d 619 (1940), which I find indistinguishable from the present case. This is not a trivial matter. Penelko claims approximately $30,000 attorney fees in the trial court, plus attorney fees on this appeal. In all other respects, I concur in the majority opinion.

In the Latses case and in this case, the original lease contained the usual clause that if either lessor or lessee fails to perform the lease, such party agrees to pay all of the costs and expenses of enforcing the lease, including reasonable attorney fees. In both cases, the original lessor transferred the leasehold property to a transferee, from whom the lessee later attempted to recover attorney fees under the lease provision the transferee had not signed. In this case, the subsequent (1977) lease to Price was expressly “subject to and together with” the original lease (1972); in the Latses case, the Court held that the purchasers took “subject to the tenancy” either because they had “actual knowledge of the lease before they purchased” or “were put on inquiry as to the status of respondent’s occupancy.” 99 Utah at 219, 224, 104 P.2d at 622, 624. The two circumstances are indistinguishable in that respect.

Under the holding of Latses, a promise to pay attorney fees in a lease agreement is a *1239personal covenant rather than a covenant running with the land. And, under the holding in Latses, confirmed by the general discussion in 20 Am.Jur.2d, “Covenants, Conditions, Etc.” §§ 24-25, 29-30 (1965), and the authorities cited in the majority opinion, the transferee of a lessor is not responsible under the personal covenants of the lessor unless the transferee expressly agrees to be bound by them. In Latses, this Court gave this explanation of why the lessor’s transferee could not be held liable to the lessee for attorney fees: “Though appellants purchased the property subject to the tenancy, they did not expressly agree to abide by all the terms of the lease." (Emphasis added.) 99 Utah at 224,104 P.2d at 624.

In the facts of this case, I find no express agreement by the transferee to be bound by all the terms of the lease. In the 22 pages of the 1977 “Lease Agreement” between the original lessor and its transferee, Price, the transferee’s only express agreement to be bound by “the duties and responsibilities contained in covenants of the [1972 lease to Penelko]” was a statement in an exhibit that is expressly limited to “reciprocal parking and access privileges” and similar matters. (The statement is quoted in full in the majority opinion.) It does not include attorney fees.

Being unable to find the necessary express agreement required by the Latses case, and being unwilling to subscribe to the “less rigorous test” the majority impliedly promotes in its references to cases in other states, I respectfully dissent from this aspect of the majority’s decision.