01-1953 Westhaven Assoc., Ltd. v. CC of Madison, Inc.

By: dmc-admin//September 3, 2002//

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Commercial tenant vacated its mall space before the lease expired; the circuit court erred in refusing to enforce the lease provisions granting landlord daily rent and $20 per day for “failure to do business.”

Tenant had the burden of proving, under the factors set out in Wassenaar v. Panos, that the stipulated damages listed in the lease were unreasonable and amounted to a penalty.

Attorneys’ fees are authorized by the lease only as an expense of reletting the premises to a third party; we reverse the circuit court’s award of landlord’s attorney fee request, as the fees relate only to this action for rent deficiencies and stipulated damages.

Reversed and remanded.

Recommended for publication in the official reports.

Dist IV, Dane County, Albert, J., Lundsten, J.

Attorneys:

For Appellant: Stephen J. Nording, Madison; Laura E. Callan, Madison; Jeanette C. Lytle, Madison

For Respondent: Todd G. Smith, Madison

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