"SUBSTANTIVELY UNCONSCIONABLE" EQUALS "HIGHWAY ROBBERY"

Judge throws out provisions in governing documents that allows collection of cost and attorney's fees without being the prevailing party!

In a case pending in THE CIRCUIT COURT OF THE TENTH JUDICIAL CIRCUIT IN AND FOR POLK COUNTY, FLORIDA Circuit Court Judge Dick Prince ruled on motions brought in front of his court that provisions in the governing documents that allow the party in charge to collect attorney's fees and cost without being the prevailing party SUBSTANTIVELY UNCONSCIONABLE. Please read here the important paragraphs of his important ruling:

 

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."

 

CLICK HERE FOR THE COMPLETE RULING!

 


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