Bonnema v. Shafizadeh

Bonnema v. Shafizadeh

IN THE UTAH COURT OF APPEALS
 

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Steve Bonnema and Tori Bonnema dba Visions Salon,

Plaintiffs and Appellants,

v.

Masoud Shafizadeh aka Massoud Shafizadeh,

Defendant and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20031002-CA
 

F I L E D
(February 10, 2005)
 

2005 UT App 54

 

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Third District, Salt Lake Department

The Honorable Robert K. Hilder

Attorneys: Steve Bonnema and Tori Bonnema, Sandy, Appellants Pro Se

Peter H. Barlow, Salt Lake City, for Appellee

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Before Judges Greenwood, Orme, and Thorne.

GREENWOOD, Judge:

    Plaintiffs Steve and Tori Bonnema appeal the trial court's grant of Defendant Masoud Shafizadeh's motion to dismiss and request for attorney fees. Plaintiffs, lessees, argue that Defendant, lessor, negligently breached the terms of the lease contract (Lease Agreement), and should therefore be liable for damages resulting from a fire on the premises.(1) In response, Defendant asserts he has no liability under the Lease Agreement's hold harmless provisions. Defendant further claims that by failing to obtain adequate insurance, Plaintiffs step into the shoes of the insurer, thus indemnifying Defendant, lessor. In addition, Defendant requests, pursuant to the Lease Agreement, attorney fees stemming from this appeal. We affirm and remand.

    "'Because the propriety of a motion to dismiss is a question of law, we review for correctness, giving no deference to the decision of the trial court.'" Wagner v. Clifton, 2002 UT 109,¶8, 62 P.3d 440 (quoting Krouse v. Bower, 2001 UT 28,¶2, 20 P.3d 895).

    "Under rule 12 of the Utah Rules of Civil Procedure, a motion to dismiss is proper 'only where it clearly appears that the plaintiff or plaintiffs would not be entitled to relief under the facts alleged or under any state of facts they could prove to support their claim.'" Bennett v. Jones, Waldo, Holbrook & McDonough, 2003 UT 9,¶30, 70 P.3d 17 (additional quotations and citation omitted). "On appeal from a motion to dismiss, we review the facts as they are alleged in the complaint. We accept the factual allegations in the complaint as true and consider all reasonable inferences to be drawn from those facts in a light most favorable to the plaintiff." Ramsey v. Hancock, 2003 UT App 319,¶1 n.1, 79 P.3d 423 (quotations and citation omitted).

    Defendant maintains that Plaintiffs' failure to obtain adequate insurance, as required by the Lease Agreement, positions Plaintiffs as insurers, and thus, indemnitors of Defendant. While "a tenant is presumed to be a coinsured of the landlord absent an express agreement between them to the contrary," GNS P'ship v. Fullmer, 873 P.2d 1157, 1163 (Utah Ct. App. 1994), a "landlord may simply by contract require the tenant to provide insurance." Id. at 1164.

    It is undisputed that the Lease Agreement required Plaintiffs to purchase property and fire insurance for the leased property with liability limits of $1,000,000. Furthermore, it is undisputed that Plaintiffs did not purchase said insurance.

    "[I]n general, the party who agrees to procure the insurance and fails to do so assumes the position of the insurer and, thus, the risk of loss." Christiansen v. Holiday Rent-A-Car, 845 P.2d 1316, 1321 (Utah Ct. App. 1992) (quoting Richmond v. Grabowski, 781 P.2d 192, 194 (Colo. Ct. App. 1989)). Because Plaintiffs breached the Lease Agreement by failing to obtain the required insurance, they step into the shoes of the insurer and must indemnify Defendant against loss. In addition, Plaintiffs' legal status as indemnitor of Defendant obviates their claim for negligence because the required insurance would have covered damages resulting from any negligence. Therefore, on this basis, the trial court did not err when it granted Defendant's motion to dismiss.

    This holding makes it unnecessary to analyze the effect of the Lease Agreement's hold harmless provisions. However, we note that in Hawkins v. Peart, 2001 UT 94, 37 P.3d 1062, the Utah Supreme Court held that a party may contractually "bargain against liability for harm caused by their ordinary negligence." Id. at ¶9 (quoting 6A Arthur Linton Corbin, Corbin on Contracts § 1472, at 596-97 (1962) (footnote omitted)); see also Russ v. Woodside Homes, Inc., 905 P.2d 901, 904 (Utah Ct. App. 1995).

    Finally, turning to the issue of attorney fees, "a party is entitled to attorney fees only if authorized by statute or contract." Brookside Mobile Home Park, Ltd. v. Peebles, 2002 UT 48,¶24, 48 P.3d 968. Here, the Lease Agreement explicitly provides that, in the event one party brings an action arising out of the agreement against the other, the losing party pays the prevailing party's attorney fees. Therefore, after granting Defendant's motion for dismissal, the trial court correctly awarded Defendant his attorney fees.

    When attorney fees are authorized and awarded below, and the party who prevailed below prevails on appeal, that party is also entitled to an award of attorney fees reasonably incurred on appeal. See Management Servs. Corp. v. Development Assocs., 617 P.2d 406, 409 (Utah 1980) ("We therefore adopt the rule of law that a provision for payment of attorney[] fees in a contract includes attorney[] fees incurred by the prevailing party on appeal as well as at trial, if the action is brought to enforce the contract . . . ."). Defendant is accordingly entitled to his reasonable attorney fees incurred on appeal.

    Accordingly, we affirm the trial court's dismissal of Plaintiffs' complaint. Further, we remand to the trial court for determination of Defendant's reasonable attorney fees incurred on appeal.

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Pamela T. Greenwood, Judge

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WE CONCUR:

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Gregory K. Orme, Judge

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William A. Thorne Jr., Judge

1. Additionally, Plaintiffs assert that their trial counsel was ineffective. However, "[t]he doctrine of ineffective assistance of counsel arises out of the Sixth Amendment to the United States Constitution and has no parallel in the civil context." Davis v. Grand County Serv. Area, 905 P.2d 888, 894 (Utah Ct. App. 1995). As the instant case is civil, we may not grant Plaintiffs a new trial on ineffective assistance of counsel grounds.