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Lyman Lumber of Wisconsin3/29/2005
. Yourchuck Video, Inc., appeals a summary judgment dismissing its counterclaim for negligent construction against Lyman Lumber of Wisconsin, Inc., and a judgment holding it in breach of contract and awarding damages to Lyman. Yourchuck claims there are genuine issues of material fact that preclude summary judgment, that there was insufficient evidence to support the judgment and damage award, and that the trial court took too long to issue its decision. Lyman cross-appeals the portions of the judgment that suspended accrual of interest during the pendency of the action and reduced the attorney fees to what the court deemed the reasonable local rate. Lyman argues that there is no basis for suspending the interest accrual and that because the contract called for actual attorney fees, the court erred by reducing them. We affirm the judgments on the appeal but reverse on the cross-appeal: the court had no basis for suspending interest and erroneously exercised its discretion when it adjusted Lyman's attorney's hourly rate. We remand to the trial court for computation and entry of the correct interest amount and attorney fees.
Background
. Yourchuck contracted with Lyman for the construction of a commercial building at a contract price of $822,074.48. The contract was dated April 18, 2000, and contained, as the trial court ultimately found, a "skeletal contract" consisting of terms of sale and specifications, along with sketches of the proposed building. The court determined that blueprints prepared over a month later were not a part of the contract.
. During the course of construction there were, in addition to the contract specifications, items built or installed totaling $26,264.53. Yourchuck disputed the extra costs, contending it did not approve them or they were already included in the initial contract price. Yourchuck also disapproved some of the workmanship, claiming some work was subpar and some was incomplete, but ultimately took physical occupancy of the building, opening its store to the public in January 2001. For contract purposes, the parties agreed on an occupancy date of June 12, 2001, the date Lyman submitted its final bill.
. Because of what it terms "substantial problems," Yourchuck refused to pay the final bill until the building was "actually complete" and the defects remedied. Lyman brought the underlying action, seeking $180,812.01 as the unpaid amount remaining on the contract, imposition and enforcement of a construction lien, and interest and attorney fees. Yourchuck counterclaimed, alleging breach of contract, "strict responsibility and representation," intentional misrepresentation, negligent construction, and nuisance. On Lyman's motion for summary judgment, the court dismissed all but Yourchuck's breach of contract counterclaim. A trial to the court followed.
. Yourchuck's essential defense was to establish what it believed to be deficiencies in construction that would entitle it to an $88,649.53 offset. It further disputed any liability for interest or attorney fees, claiming Lyman breached the contract and, therefore, could not enforce either contractual provision.
. Lyman presented witnesses to establish the building was "substantially complete" and free of significant defects. At least one witness also testified that Lyman had been unable to remedy certain minor defects because Yourchuck would not specify what needed to be fixed and had barred Lyman from reentering the property.
. Ultimately, the trial court rejected Yourchuck's breach of contract counterclaim and concluded the building was substantially complete, entitling Lyman to 98% of the contract price. The remaining 2% was grante
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