9
The Attorney Fee Award Was Proper
Background and Introduction to the Issue
As mentioned, two different provisions in the lease provided for attorney fees,
paragraph 23 and 30, as follows:
Paragraph 23: “Resident(s) agrees that if they fail to vacate past the ending date of
a proper notice to terminate by either party, [sic] shall become a holdover tenancy
commencing with the first day after the expiration of the notice period, and that
Resident(s) shall be responsible for all losses suffered by management and displaced
tenants who anticipated taking occupancy at the end of the notice period, including
attorney’s fees and costs.”
Paragraph 30: . . . “This Agreement is made on the express condition that
Management is to be free from all liability or loss caused by Resident(s), or Resident(s)
guests’, agents’ or invitees’, improper, negligent or intentional acts or
omissions . . . . Resident(s) hereby covenants and agrees to indemnify, hold harmless, and
defend Management against all claims, losses or liabilities . . . by Resident(s) or
Resident(s) agents or invitees, unless such claim, loss or liability is solely as a result of
Management’s gross negligence or willful misconduct. Such indemnification shall
include and apply to attorney’s fees, investigator costs, and other costs actually incurred
by Management. Resident(s) shall further indemnify, defend and hold harmless
Management from and against any and all claims arising from any breach or default in
the performance of any obligation on Resident(s) part to be performed under the terms of
this Rental Agreement.”
The mold addendum also had a fee provision: “Resident agrees to defend,
indemnify and hold harmless Management . . . from claims, liabilities, losses, damages
and expenses (including attorneys’ fees), that they incur that are related to the Resident’s
breach of the Resident’s obligations to Management.”
In light of these provisions giving Prometheus the right to recover attorney fees if
it were to sue the Hjelms, the Hjelms sought attorney fees under section 1717. Judge
Bergeron agreed, and awarded the Hjelms fees.