Westhaven Associates, Ltd. v. C.C. Of Madison, Inc

652 N.W.2d 819 (2002)

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Nature of the Case

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Facts

D entered into a lease with P. D leased about 17% of the available rentable space in the Shopping Center. The lease term was ten years. D closed its store without P's approval. At this time, the lease rate was $49.58 per day. From February 1, 2000, forward, D did not pay rent. In accordance with the lease, P attempted to find a new tenant for the D space. The space remained vacant until it was leased to a third party beginning December 1, 2000. P sued D seeking attorneys' fees, rent, and contract damages relating to the approximately thirteen-month period the space remained unoccupied. The contract sets forth P's remedies in the event D 'defaults in the payment of Minimum Rent or other charges or the performance of any other of Tenant's obligations hereunder, and fails to remedy such default within ten (10) days after written notice from Landlord ....' P can terminate the lease, reenter the premises, and recover from P 'any sums due Landlord for rent or otherwise to the date of such entry,' and liquidated damages or P can choose to not terminate the lease and attempt to relet in its own name for the remainder of the term and then recover from D 'any deficiency ... between the amount for which the premises were relet, less expense of reletting, including all necessary repairs and alterations and reasonable attorney's fees and the rent provided hereunder.' P exercised the second option. P was entitled to the lease rate of $49.58 for each day between October 9, 1999, when D vacated, and December 1, 2000, when the space was sublet. P also sought the stipulated damages of $20 per day if D fails to keep its premises open for business during 'normal business hours.' P argued that it was entitled to $20 per day for each violation of paragraph 3.02 from October 14, 1999, to November 30, 2000. Paragraph 8.00(n) of the lease requires D to pay a sum equal to P's normal daily rent for each day D fails to keep its premises open for business during specified 'minimum hours.' The circuit court determined that P was entitled to recover attorneys' fees but that the 'failure to do business' provisions contained in paragraphs 3.02 and 8.00(n) were unreasonable and, therefore, unenforceable. Both parties appealed.