b. Defendant proved by a preponderance of the evidence that certain portions of
the Declaration of Covenants are substantively unconscionable or may be
subject to interpretation in a substantively unconscionable way. The provisions
which the Court finds substantively unconscionable and the remedies therefore
are set forth below.
5. Paragraph 6 of the Declaration of Covenants enables the
Manager to prosecute violations of the Declaration of Covenants. The second
sentence of such paragraph reads as follows:
"Costs of such proceedings, including reasonable attorney's fees, shall be paid
by the Lot Owner."
This sentence is unconscionable because it does not require the Manager to be
the prevailing party in such a proceeding before it is entitled to collect fees and
costs. Therefore, the Court exercises its power to interpret this provision to
avoid an unconscionable result and will require that Manager be the prevailing
party in any such proceeding before it is entitled to collect the fees and costs
indicated.
The Court will interpret this sentence
to read as follows:
"Costs of such proceedings, including reasonable attorney's fees, shall be paid
by the Lot Owner, if the Manager is the prevailing party."
6. The Court makes the same finding, for the same reason, with respect
to the third sentence of paragraph 4.9 of the Declaration of Covenants. As-
written the sentence states:
"In any such action or other action to enforce the provision of this lien, including
appeals, the Manager shall be entitled to recover its reasonable attorney's fees
and costs and interest at the highest rate permitted by law."
To avoid an unconscionable result, the Court will interpret this sentence to read:
"In any such action or other action to enforce the provision of this lien, including
appeals, the Manager shall be entitled to recover its reasonable attorney's fees
and costs and interest at the highest rate permitted by law, if the Manager is the
prevailing party."
7. The Court makes the same finding, for the same reason, with respect
to the final sentence of paragraph 5 of the Declaration of Covenants. As-written
the sentence reads:
"Each Owner shall not interfere with any prospective or existing contractual
relationship involving the Manager and a customer of Manager and any breach
of the provisions of this paragraph by a [sic] Owner shall entitle the Manager to
bring an action for injunction and for damages against the Owner and Manager
shall be entitled to recover reasonable attorney's fees, court costs and all other
expenses of litigation."
To avoid an unconscionable result, the Court will interpret this sentence to read:
"Each Owner shall not interfere with any prospective or existing contractual
relationship involving the Manager and a customer of Manager and any breach
of the provisions of this paragraph by a [sic] Owner shall entitle the Manager to
bring an action for injunction and for damages against the Owner and Manager
shall be entitled to recover reasonable attorney's fees, court costs and all other
expenses of litigation, if the Manager is the prevailing party." |