listing similar factors, and also considering “any gross disparity in the values exchanged,” signs that one party did not willingly “assent to the unfair terms,” “knowledge of the stronger party that the weaker party will be unable to receive substantial benefits 11 from the contract,” and “knowledge of the stronger party that the weaker party is unable reasonably to protect his interests by reason of” infirmities or ignorance
How later courts described this case
- listing similar factors, and also considering “any gross disparity in the values exchanged,” signs that one party did not willingly “assent to the unfair terms,” “knowledge of the stronger party that the weaker party will be unable to receive substantial benefits 11 from the contract,” and “knowledge of the stronger party that the weaker party is unable reasonably to protect his interests by reason of” infirmities or ignorance
- noting that attorney’s fees need not be segregated when the fees incurred are rendered in connection with claims arising from the same transaction or occurrence and are so interrelated that their prosecution or defense entails proof or denial of essentially the same facts
- holding that, where the claims are intertwined “the party suing for attorney’s fees may recover the entire amount covering all claims”
- explaining that courts examine the procedural and substantive aspects of a contract in determining whether it is unconscionable
Written by the judges who cited it.
The opinion
TOM GRAY, Chief Justice,
concurring.
If it is within our job description to come up with a laundry list of questions that could pose a problem in the subsequent enforcement of a contract, I assure you that only the wealthiest of clients could afford to have enforceable contracts drafted. Fortunately that is not the law. That is, however, what the majority has done to determine McCalla’s contract is “void.” I would not.
In June 1994, Mary Baker took the necessary steps to list the property with a broker. At this point, she had affirmatively triggered the provisions of her contract with McCalla that if she decided to sell, McCalla had certain rights. I agree with McCalla that Mary’s effort to include a 72 hour response time for McCalla to act on the rights was not effective because it was not part of that contract. If time to act in a contract is not specified, a reasonable time is implied.
By October of 1994, McCalla had an appraisal of the fair market value completed. It would have been a jury issue of whether this was a reasonable time to obtain such an appraisal and then immediately act on the contract. We need not decide that issue, however, because McCal-la did not attempt or endeavor to act on his rights under the contract at that time. In fact, McCalla did not act on this appraisal of the fair market value, by attempting to exercise his rights under the contract, until April 1996, almost two years after Mary decided to sell the property, and well over a year after the appraisal was received by McCalla. Many events occurred during this extended delay. The length of the delay alone would raise the issue of whether the appraised value had changed, and the jury did make such findings.
Under these circumstances, I have no problem in determining, as a matter of law, that McCalla failed to exercise his rights under the contract in a timely manner. His efforts to delay the exercise, for whatever reason, are ineffective because, like the 72 hour provision, they are not in the contract.
I do not, however, find any reason to interfere with an agreement freely entered into by these parties by declaring the provision void as the majority has done. I would sustain issue three on the basis that McCalla waived his rights under the agreement by failing to timely exercise them.
It does not appear that my disagreement with the majority on resolving this issue would substantively impact the disposition of the appeal. I concur.