Gene's Gulf, Inc. v. Walnut Equipment Leasing Co.

District Court of Appeal of Florida

Gene's Gulf, Inc. v. Walnut Equipment Leasing Co.

391 So. 2d 753, 1980 Fla. App. LEXIS 17921

CourtDistrict Court of Appeal of Florida

DecidedDecember 24, 1980

DocketNo. 79-325

StatusPublished

This text of 391 So. 2d 753 (Gene's Gulf, Inc. v. Walnut Equipment Leasing Co.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Gene's Gulf, Inc. v. Walnut Equipment Leasing Co., 391 So. 2d 753, 1980 Fla. App. LEXIS 17921 (Fla. Ct. App. 1980).

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Opinion

ORFINGER, Judge.

The final judgment appealed from awarded appellee money damages for breach of a lease agreement, and included in the award was a 25% collection fee, the allowance of which appellant contends was error. We agree and reverse on that point.

The lease provided that upon default, in addition to other remedies available to lessor,

lessee shall remain and be liable for the total balance of the unpaid rent therefor and all such rent shall become due and payable forthwith and, lessee authorizes the Prothonotary or any attorney of any court of record, whenever lessee is in default hereunder to appear for and confess judgment as often as necessary against lessee (1) in any action to recover said property and (2) for all sums payable by lessee hereunder with 25% added as a collection fee (emphasis added).

Appellants’ objection to the awarding of the 25% collection fee is based upon two grounds: (1) that the collection fee pertains to the confession of judgment provision, which is invalid under Florida law and (2) the collection fee is unenforceable as a penalty.

[754]*754In Florida, confession of judgment provisions are invalid,¹ although contracts are not necessarily invalid in their entirety because of the inclusion of such provision where the clause is severable. Hawke v. Broward National Bank of Fort Lauderdale, 220 So.2d 678 (Fla.4th DCA 1969). Here, the provision is severable, and appel-lee did not rely on it in obtaining the judgment.

However, it is clear that the “25% collection fee” is part and parcel of the confession of judgment clause, and must fall with it. Because of our interpretation of the lease agreement, we need not decide whether this collection fee is unenforceable as a penalty.

The final judgment is reversed as to the award of $1,623.00 as a collection fee, but is otherwise affirmed and the cause is remanded to the trial court for correction of the final judgment in accordance herewith.

AFFIRMED in part and REVERSED in part.

FRANK D. UPCHURCH, Jr. and CO-WART, JJ., concur.

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