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Harley Paws11/13/2001
APPEAL from a judgment of the circuit court for Milwaukee County: DAVID A. HANSHER, Judge. Affirmed.
. Mohns, Inc., appeals from the judgment awarding Harley Paws, Inc., $21,958.82 in damages, following a court trial. Mohns argues that the trial court erred in finding that it breached the construction contract it had entered into with Harley Paws. Mohns also argues that the trial court's damage findings are arbitrary and excessive. Finally, Mohns argues that Harley Paws wrongfully terminated the contract and, therefore, that it (Mohns) is entitled to an award on its counterclaim for $14,852.87. We affirm.
I. BACKGROUND
. In July 1998, the parties contracted for the remodeling of a retail store on Brady Street that Harley Paws planned to operate as "Three Dog Bakery." During contract negotiations, Mohns told Harley Paws that the construction should be completed in approximately five weeks, and estimated the cost to be $52,000. Based on that information, Harley Paws scheduled its grand opening for September 26, 1998. Construction commenced in early August 1998 and continued until September 11, when disputes developed primarily involving: (1) the modification, possible delay, and additional costs involving the construction of the store's cabinetry; and (2) the rescheduling of the faux finisher, who was scheduled to do the finishing painting on September 12, but could not because Mohns had failed to complete the preliminary painting. The former problem was resolved through an informal mediation meeting with Harley Paws' attorney on the afternoon of September 11. During the mediation, Harley Paws and Mohns agreed to a change order on the cabinets, which included a $5,000 increase in their cost. Hours later, however, when Harley Paws discovered defects in the drywall and learned from Ben Mohns, Mohns' President, that the store would not be completed by the grand opening date, Harley Paws fired Mohns and arranged for other contractors to complete the remodeling.
. Harley Paws subsequently sued Mohns for breach of contract. Throughout the trial, Harley Paws maintained that the contract's completion date, which was based on Mohns' five-week estimate, was September 12. The trial court found, however, that the parties had agreed to a completion date of September 23. Nevertheless, the court concluded that Mohns had breached the contract. In its findings of fact, the court explained that, given the need to be ready for the September 26 opening, the parties clearly understood that "time was of the essence." The court also found that as of September 11, "there was not substantial performance." The court concluded "that the termination on the 11th of the contract and the hiring of replacement contractors was reasonable and warranted under all circumstances and the totality of what happened from the beginning to the end." Consequently, the court also found "that the plaintiffs had no choice at that point but to get other contractors to be brought in to finish the job and get it done by the time set for the opening...."
. After hearing extensive testimony regarding damages, the trial court awarded Harley Paws $21,958.82, plus costs and statutory attorneys' fees. The court also dismissed Mohns' counterclaim. Mohns appeals.
II. ANALYSIS
A. Breach
. Mohns first argues that the trial court erred in finding that it was in breach of contract at the time Harley Paws terminated the contract. Asserting that the court "made no findings that Mohns' workmanship was defective," Mohns contends that the trial court's decision "indicated that its finding of breach rested on the issue of timeliness." Mohns maintains, however, that "the ev
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