00-3428 Madison Crushing & Excavating Co., Inc., et al. v. Volkmann Railroad Builders, Inc., et al.

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This is an appeal in a case which involves three separate lawsuits. The suits all involve, directly or indirectly, a contract between the Wisconsin River Rail Transit Commission (River Rail) and Volkmann Railroad Builders, Inc. (Volkmann), pertaining to the rehabilitation of a railroad track extending through parts of Madison and Middleton, Wisconsin. The suits began when Madison Crushing & Excavating Co., Inc. (Madison Crushing) sued Volkmann demanding payment for subcontracting work it did for Volkmann on the project. Volkmann impleaded the owner of the railroad, River Rail. Another subcontractor of Volkmann’s, Werner Brothers, Inc. (Werner Brothers), intervened in the action, asserting that it was owed money on its subcontract with Volkmann. Although these are separate lawsuits, they are all tied to the Volkmann/River Rail dispute in one way or another. That dispute is over how much of Volkmann’s work on the project was required by the contract between Volkmann and River Rail, and how much was extra-contractual work, or “extras” required by River Rail.

The trial court concluded that the contract between Volkmann and River Rail was unambiguous and awarded Volkmann damages of over $800,000. It awarded damages of $224,309 to Madison Crushing against Volkmann, and $39,793 to Werner against Volkmann. It also awarded interest to Werner and Madison Crushing.

River Rail appeals from the judgment in favor of Volkmann. Volkmann appeals from the judgments in favor of Madison Crushing and Werner. Madison Crushing cross-appeals from the trial court’s denial of its claim for 18% interest against Volkmann.

As to Volkmann and River Rail: We conclude that the contract between River Rail and Volkmann is unambiguous, and we accept Volkmann’s view as to its meaning. Accordingly, we affirm the trial court’s judgment in this respect. We affirm the trial court’s method of calculating damages for River Rail’s breach of the contract. But we also conclude that Volkmann’s evidence was insufficient to show that River Rail interfered with Volkmann’s performance of the contract. We therefore reverse the trial court’s award of damages for the interference. We affirm the trial court’s award of interest and attorney fees pursuant to statute, and we also affirm the trial court’s award of prejudgment interest on “extra work” that Volkmann performed.

As to Volkmann’s cross-appeal: We modify the trial court’s award of prejudgment interest to Werner Brothers by changing the rate to 5%. We remand with directions to award prejudgment interest at that rate. We reverse the trial court’s award of 12% prejudgment interest to Madison Crushing.

As to Madison Crushing’s cross-appeal: We affirm the trial court’s denial of 18% or 5% prejudgment interest on Madison Crushing’s claim.

Not recommended for publication in the official reports.

Dist IV, Dane County, Flanagan, J., Dykman, J.

Attorneys:

For Appellant: Eileen A. Brownlee, Fennimore; for plaintiff: Catherine J. Furay, Madison; Stephen L. Morgan, Madison; Suzanne Lee, Madison; Michael C. Witt, Jefferson

For Respondent: Philip J. Bradbury, Madison; Jenifer L. Kraemer, Madison