Midwest Amusement ordered to pay for work done at track

Shawano Leader/November 18, 2005
By Tim Ryan

Midwest Amusement Park on Thursday was ordered to pay more than $380,000 to a Green Bay company for work done on the park’s USA International Raceway.

Shawano County Circuit Court Judge Thomas Grover granted a motion for judgment to Northeast Asphalt, Inc., partly on grounds that Midwest had provided no legitimate excuse for failing to answer the company’s claim.

"We’re not here on any one procedural issue," said the attorney for Northeast Asphalt, Mike Hermes. "We’re here because of a pattern of Midwest failing to follow procedures and thumbing their nose at the law."

Midwest Amusement Park and USA International Raceway are subsidiaries of the Samanta Roy Institute of Science and Technology (SIST).

The racetrack has held a number of racing events, including national motorcycle races, over the past year.

Hermes argued that Midwest did not file an answer to its lawsuit, did not show up for depositions in the case, and refused to respond to a motion for discovery.

"There is no excusable neglect, just simple neglect," Hermes said, and asked that Grover "not allow this to continue."

Midwest attorney Rebekah Brown told the court she did not become involved in the case until September. Previous counsel Winston Ostrow withdrew from the case in August.

"I was not aware that an answer was not filed," Brown said.

Brown said that her client was not disputing that there was a debt, only the amount. The original cost of the work was about $286,000 before 1.5 percent monthly finance charges were added, she said.

Brown also said she was unaware of demands for discovery.

"To the best of my knowledge, my client did not receive them," she said.

Brown said that Northeast’s legal counsel was informed that her client would not be at the deposition hearing.

"My client did not want to incur the expense," she said.

Brown said that Midwest is disputing the amount owed to Northeast Asphalt because of problems they are having with the racetrack.

"Northeast Asphalt is saying they do not want to stand behind their warranty," Brown said.

Hermes responded that Northeast would be willing to deal with any problems covered by the warranty, but that the warranty is not yet valid because Midwest has refused to pay for the work.

"There was no promise made that they’re backing out on," Hermes said. "They want to be paid for the work they’ve done."

Hermes also said that Northeast recommended that Midwest Amusement Park hire an outside engineer for additional paving work after Northeast had finished construction.

Regardless, he said, Midwest’s contention that the track is in need of repair is "a separate and distinct claim" that would not be affected by granting the judgment in Northeast Asphalt’s favor.

Earlier in the day Thursday, prior to the court hearing, Brown filed an answer to Northeast’s suit.

However, Grover refused to accept it because the answer was not filed when it should have been, no extension was requested, and no legitimate excuse had been given for Midwest’s failure to meet the deadline.

"This court is not going to allow an answer to be filed without a hearing showing that there was some mistake or excusable neglect," he said.

Grover also noted in granting Northeast Asphalt’s default judgment that Midwest also did not respond to the notice of deposition or the notice to admit or deny Northeast’s claims.

The civil suit heard in circuit court on Thursday was actually filed in February by Heyrman Construction Co., of Green Bay, over payment due for work done at the race track.

Northeast Asphalt joined the suit in June as an intervenor, but their claim has moved along faster.

Hermes said after the court hearing that the Heyrman claim was still proceeding.

"They’ll probably be here next month doing the same thing," he said.

In addition to the civil suit, Heyrman in October filed a construction lien against Midwest Amusement Park in the amount of $74,421.

Also in October, Hugo & Bramschreiber Asphalt Co., of Sobieski, Wis. filed a small claims case against Midwest Amusement Park. That matter has been scheduled for a court trial on Dec. 27.

In April, a construction lien in the amount of $75,086 was filed against Midwest Amusement Park by Fencing Plus, of Sheldon, Wis.

Northeast Asphalt filed a construction lien against the racetrack in March.

Hermes did not put a timetable on expected payment from Midwest, but said Northeast would return to court if nothing happens after a reasonable amount of time.

Kevin Gannon, vice president of Northeast Asphalt, said the company would rather receive payment than see a foreclosure go forward.

"We just want to get paid for our work," he said. "We don’t want to own a racetrack."

Gannon said that Northeast has been trying to collect for the work done at USA International Raceway for a year.

SIST and its subsidiaries have purchased about $12 million worth of property in the Shawano area.

Brown declined to comment on the judgment after the hearing.