IN THE SUPREME COURT OF MISSISSIPPI

NO. 96-CA-00592-SCT

MISSISSIPPI TRANSPORTATION COMMISSION

v.

SCI, INC.

DATE OF JUDGMENT: 05/07/96

TRIAL JUDGE: HON. JOHN H. WHITFIELD

COURT FROM WHICH APPEALED: HANCOCK COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANT: WHITNEY B. BYARS

PEYTON S. IRBY, JR.

ATTORNEY FOR APPELLEE: THOMAS W. PREWITT

NATURE OF THE CASE: CIVIL - CONTRACT

DISPOSITION: AFFIRMED IN PART; REVERSED AND

REMANDED IN PART - 07/23/98

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 8/17/98

BEFORE SULLIVAN, P.J., McRAE AND SMITH, JJ.

McRAE, JUSTICE, FOR THE COURT:

¶1. The Mississippi Transportation Commission (Commission) appeals a judgment in favor of SCI,

Inc. (SCI) based on the Commission's breach of a highway construction contract. The Commission

alleges that the circuit court improperly granted summary judgment to SCI regarding damages, that

the Commission deserved a judgment notwithstanding the verdict, that the circuit court improperly

granted SCI an additur, and that the circuit court erred in refusing to allow the Commission to file a

third-party complaint. We affirm the decisions of the circuit court below, except with regard to the

award of summary judgment as to the damages recoverable by SCI. While the circuit court is fully

empowered to grant summary judgment after the refusal of an additur, we find that the circuit court

in this case erred in finding that no genuine issue of material fact existed in relation to SCI's damages.

The Commission did raise factual disputes that required a jury determination. We also note that the

statement that the Commission acted as "stewards for the taxpayers," which was made in front of the

jury by the attorney for the Commission was wholly inappropriate. Accordingly, we reverse and

remand for a new trial on damages only.

BACKGROUND
¶2. In 1992, the Commission issued an advertisement to bidders, inviting contractors to submit bids

to construct improvements to Highway 603 in Hancock County. SCI, a contracting company that

builds bridges and highways, submitted a proposal of $7,882,180.35 for the Highway 603 Project.

SCI, which had previously bid successfully on contracts with the Commission, submitted the low bid

and was chosen to be the contractor for the project.

¶3. The bid package contained a form contract and a Utility Certification. The form contract signed

by SCI incorporated the Mississippi Standard Specifications for Road and Bridge Construction. Also

contained in the bid package was the Utility Certification, dated August 21, 1992. The Commission

alleges that of all the utility conflicts, only three set forth a specific relocation date, and the other

utility conflicts failed to provide a specific date for relocation or removal of the utility conflicts. SCI

argues that the Commission promised SCI that numerous utility poles, lines and pipelines that crossed

and paralleled the Highway 603 Project area would be removed by the end of January 1993.

¶4. On October 16, 1992, SCI and the Commission executed the contract for the Mississippi

Highway 603 Project in Hancock County. SCI was to build two new lanes on a seven-mile stretch of

Highway 603 from Kiln to Waveland. SCI was also supposed to lay a new asphalt topping on the two

existing lanes of Highway 603 in the same stretch. The completion date was specified as July 28,

1994.

¶5. At the time SCI executed the contract, some utility conflicts still had not been relocated by the

dates set forth in the Utility Certification. Though the parties agree on that fact, at trial, the parties

disputed whether or not SCI's work progress was or should have been delayed by these utility

conflicts. Nonetheless, on October 29, 1992, SCI requested that the Commission not count time

against it, since some utilities were still conflicting with its construction efforts.

¶6. On November 5, 1992, a preconstruction conference was held with representatives of the

Commission, SCI, and several of the utility companies present. The parties discussed project

formalities along with the status of the utility conflict relocation work. Apparently, it was mentioned

that several of the utility conflicts would not be relocated or removed in the near future. The day after

the conference, parties from the Commission and SCI discussed the possibility of terminating the

contract because of the utility conflicts. However, SCI indicated that it would attempt to continue.

¶7. Work on the Highway 603 Project continued, but according to SCI, operations were rendered

much less efficient and much more costly because it had to work around utility conflicts which had

not been resolved. The Commission argues that SCI essentially remained on schedule through 1993.

Nonetheless, in May 1993, Shackelford sought to terminate SCI's contract. However, the

Commission directed SCI to continue with its work. SCI tried again to terminate the contract, but the

Commission continued to charge time units against SCI. In November 1994, SCI and the

Commission executed a supplemental agreement which acknowledged that certain utility conflicts

had not been resolved until September and October 1993. Feeling aggrieved, SCI brought a breach of

contract suit against the Commission on December 9, 1994, in the Circuit Court of Hancock County.

¶8. Meanwhile, in March 1995, the parties executed another supplemental agreement, under which

SCI received $600,000, an advance to complete the Highway 603 Project. The Commission also

granted SCI time extensions because of the utility conflicts and an inability to secure a needed

material for road bed stabilization.
¶9. SCI filed a motion for partial summary judgment on July 5, 1995, alleging that there was no

genuine issue of material fact existing as to liability. The circuit court denied this motion. On July 12,

1995, the Commission filed a motion for leave to file third-party complaint, seeking to join as party

defendants the phone, electric, water, gas and cable utilities which allegedly caused the delay in the

Highway 603 Project. The circuit court also denied this motion, noting that the Commission had

"taken no steps to expeditiously resolve the action." Subsequently, the circuit court set the trial date

for October 2, 1995.

¶10. The jury received the case on October 6, 1995, and returned a verdict in favor of SCI. The jury

awarded SCI $2,370,888.85 in damages, with $153,386.85 designated for a claim made by the Bond

Paving Company. The jury did not grant an award for SCI's claim for damages allegedly incurred

because of the sale of the Menge Avenue dirt pit. The trial court entered final judgment on October

17, 1995.

¶11. SCI then filed a motion for new trial or additur. On October 24, 1995, the Commission filed a

motion for judgment notwithstanding the verdict. The circuit court denied the Commission's motion

but granted SCI an additur of $2,282,498.00, bringing the total judgment to $4,653,386.85. The

Commission eventually rejected the additur and a new trial for damages only was scheduled for May

6, 1996.

¶12. On January 29, 1996, the Commission renewed its motion for leave to file third party complaint.

However, the circuit court never ruled on the motion. On March 15, 1996, SCI filed a motion for

summary judgment on the issue of damages alone. After a hearing, the circuit court granted the

motion and entered judgment in favor of SCI in the amount of $4,653,386.85. Aggrieved, the

Commission filed a timely appeal to this Court.

ANALYSIS

I. Whether the Circuit Court of Hancock County, Mississippi erred in granting summary

judgment to SCI, Inc., the Plaintiff-Appellee.

¶13. The Commission believes that the circuit court's grant of summary judgment on damages to SCI

"caused a grave miscarriage of justice" and frustrated the "well-established legal principles of additurs

and remittiturs of this State."

"It is well-settled that a motion for summary judgment challenges the legal sufficiency of all or

part of an opponent's case." "The motion lies only where there is no genuine issue as to any

material fact. A fact is material if it tends to resolve any of the issues properly raised by the

parties."

This Court conducts a de novo review of the record on appeal from a grant of a motion of

summary judgment. "When reviewing an award of summary judgment, this Court views all

evidence in the light most favorable to the non-movant, including admissions in pleadings,

answers to interrogatories, depositions, affidavits, etc. and will presume that all evidence in the

non-movant's favor is true." If any triable issues of fact exist, the lower court's decision to grant

summary judgment will be reversed. Otherwise, this Court affirms the decision.
Diogenes Editions, Inc. v. State ex rel. Bd. of Trustees of Inst. of Higher Learning, 700 So. 2d

316, 319 (Miss. 1997) (citations omitted).

¶14. Initially, the Commission argues that the circuit court below was without authority to enter

summary judgment after refusal of an additur and election of a new trial on damages. However, SCI

argues that the trial court is entitled to grant summary judgment, if appropriate, in cases that have

been remanded for a trial on damages only, relying on United States v. United States Gypsum Co.,

340 U.S. 76, 86 (1950). The procedural history in United States Gypsum was somewhat different

from the instant case, since there was no additur or remittitur involved. Rather, after reversing an

order of dismissal, the Supreme Court remanded the case to the district court for further proceedings.

Id. at 81. At that point, one party moved for summary judgment on the grounds that there was no

genuine issue of material fact. Id. Recognizing the trial court's ability to grant summary judgment on

remand, the Court noted that the trial court, in determining whether genuine issues of fact remained,

could rely on the findings of the Court in previous procedural appeals. Id. at 86. Then the Court went

on to evaluate the proof regarding summary judgment. Id. at 87.

¶15. While the Commission argues that the additur/remittitur statute does not allow a trial court to

enter summary judgment, it offers no precedent to support its position. The situation faced by the

circuit court here is analogous to United States Gypsum. The circuit court below had already

received damages evidence in the trial of the matter. Upon the summary judgment motion, SCI

offered proof based on the jury's determinations and the circuit court's amended order. To the

itemization of facts presented by SCI in support of its summary judgment motion, the Commission

responded with its own brief and admissions/denials of SCI's itemized facts. At that point, the circuit

court issued an order that read in part:

Came on for hearing the Motion of SCI, INC., For Summary Judgment, and the Court, having

considered and read the Motion and Briefs in support and opposition thereto, as well as all of

the evidence submitted at the first trial that began October 2, 1995, and MDOT's Supplemental

Responses to SCI's First Set of Interrogatories, and having heard and considered the arguments

of counsel, finds and concludes that Plaintiff's Motion is well taken and should be granted.

¶16. A party seeking to recover upon a claim may, at any time after the expiration of thirty days

from the commencement of an action, move for a summary judgment in his favor. Miss. R. Civ. P.

56(a). See also Soley v. Star & Herald Co., 390 F.2d 364, 367 (5th Cir. 1968) (recognizing the

general rule which permits judicial notice of a court's prior cases to support a motion for summary

judgment, but reversing because in his order, the trial judge made no specific reference to the basis

for his grant of summary judgment).(1) Accordingly, we hold that it was proper for SCI to move for

summary judgment, and we also hold that the circuit court was within its power to grant summary

judgment in the trial on damages, if such judgment was proper.

¶17. The question becomes, then, whether summary judgment for SCI was actually appropriate in

this case. Clearly, the Commission had the alternative to elect a new trial on damages only, after

refusing the additur. Odom v. Roberts, 606 So. 2d 114, 121 (Miss. 1992). There was, on remand, no

question that the Commission breached the contract with SCI. Pursuant to United States Gypsum, it

was proper for the circuit court to rely on its determination that SCI's proof at trial was "inherently

probable, reasonable, credible, and trustworthy." However, since the circuit court determined that the
original jury award of $2,370,888.65 was influenced by bias, passion, and prejudice, that award

should have been treated as a nullity instead of a floor for awarding damages. As a result, the additur

ordered by the circuit court was, at best, a suggestion offered to the Commission, which was rejected

in lieu of a new trial on damages.

¶18. The Commission argues that numerous issues of material fact remain as to the extent of

damages due SCI and, accordingly, that summary judgment was inappropriate. Further, the

Commission argues, evidence showed that SCI could do productive work even with utilities present

on the project site, that there was a difference in the damages actually incurred by SCI, and that SCI

was not entitled to recover for "extra work" because it was not required to perform such work. The

Commission also disputed the method by which SCI calculated its damages.

¶19. To determine the propriety of summary judgment, this Court must conduct a de novo review of

the evidence regarding damages that was relied on by the circuit court below. Specifically, the

Commission cites testimony suggesting that SCI failed to mitigate its damages. The Commission

argues that evidence would show that SCI could have used more efficient equipment and could not

have performed certain activities that are reflected in SCI's calculation of damages. Testimony at trial

indicated that SCI was aware of work that it could have performed even with utilities on the project

site, including new lane construction, dirt and grading work, repaving and widening of the shoulders,

and wetlands mitigation planting.

¶20. SCI's summary judgment motion was simply that its damages, as determined by the Court

previously, were still undisputed. It did not establish conclusively that mitigation did not exist.

Nothing in the facts supporting summary judgment attempt to conclusively establish that mitigation

of damages was not a defense.

¶21. SCI admitted in the hearing on the motion for summary judgment that there was proof as to

SCI's failure to mitigate damages. However, SCI tried to dismiss this proof as useless because "there

was no quantum associated with it." Though the circuit court asserted that "MDOT presented no

evidence of the value of SCI's alleged failure to mitigate, did not promise any such evidence, and

therefore MDOT did not demonstrate that a genuine issue of material fact exists," this assertion is

contradicted by what the Commission provided in responses to interrogatories, which constitute valid

summary judgment evidence.

¶22. Jack McSwain, Rick Turner, David Foster, and Sam Peterson were all expected to offer

evidence relating to work that SCI could have performed on the Highway 603 project that could

have possibly mitigated damages that would be owed by the Commission. Similar testimony was

presented by these individuals at trial. Foster and Peterson testified that SCI was able to do

productive work on the Highway 603 Project. Turner testified that SCI could have done new lane

construction and grading work despite the utility conflicts. The jury was even instructed regarding

mitigation of damages. Although the jury verdict does not indicate explicitly that mitigation was a

factor in its decision, if such mitigation evidence was sufficient to warrant an instruction to the jury, a

factual question had to be present for resolution by the finder of fact. Moreover, the circuit court's

determination that the jury verdict was improper reinforces the concept that mitigation might have

been a factor that was improperly ignored by the jury. The circuit court recognized that money

damages was challenged heavily by the Commission at trial. Given the circuit court's reliance on the
facts revealed at trial, that court could not have concluded that SCI's damages were clear and

undisputed.

¶23. We now emphasize that although the circuit court is empowered to grant summary judgment in

a trial on damages only, it may only do so if there are no genuine issues of material fact as to

damages. Here, there was a conflict as to the amount of damages. In light of its finding that the jury

came back with an improper verdict, the circuit court should not have relied solely on that verdict to

conclude that SCI was automatically entitled to damages. Genuine issues of fact as to the amount of

damages recoverable by SCI existed in this case. Accordingly, we find that the circuit court below

erred in assessing damages through summary judgment.

II. Whether the Circuit Court of Hancock County, Mississippi erred in denying the

Mississippi Transportation Commission's Motion for a Judgment Notwithstanding the

Verdict.

¶24. The Commission also alleges that the circuit court erred in denying the Commission's motion for

judgment notwithstanding the verdict. The standard of review for a denial of a judgment

notwithstanding the verdict requires this Court to consider the evidence in the light most favorable to

the appellee, giving the appellee the benefit of all favorable inferences that may reasonably be drawn

from the evidence. Sperry-New Holland v. Prestage, 617 So. 2d 248, 252 (Miss. 1993). If the facts

are so overwhelmingly in favor of the appellant that reasonable and fair-minded jurors could not have

arrived at a contrary verdict, then this Court must reverse and render. Id. On the other hand, if there

is substantial evidence in support of the verdict, that is, evidence of such quality and weight that

reasonable and fair minded jurors in the exercise of impartial judgment might have reached different

conclusions, affirmance is required. Id. See also Fitzner Pontiac-Buick-Cadillac, Inc. v. Smith, 523

So. 2d 324, 326 (Miss. 1988).

¶25. The Commission argues that the trial court erred in allowing the jury to award monetary

damages, and in the alternative argues that the amount of the jury verdict was contrary to the

overwhelming weight of the evidence. The Commission relies on the Mississippi Standards

Specifications for Road and Bridge Construction ("Standards"). The Commission refers to Section

105.06, which is basically a "no damage for delay" provision,(2)to claim that SCI was not entitled to

recover monetary damages. The Commission also argues that SCI was not required to perform "extra

work" under Section 105.06, as a result of having to make adjustment to the utility facilities, and

therefore could not recover damages as calculated under Section 109.04 of the Standards.

¶26. Despite the apparent commonness of them, this Court has only once addressed and upheld the

validity of a "no damage for delay" provision in a construction contract. Edward E. Morgan Co. v.

State Highway Comm'n, 212 Miss. 504, 54 So. 2d 742 (1951). Contractual no-damage-for-delay

clauses are enforceable, though they are construed strictly against those who seek their benefit. J &

B Steel Contractors, Inc. v. C. Iber & Sons, Inc., 642 N.E.2d 1215, 1221 (Ill. 1994). However,

even with a "no damages for delay" clause, many jurisdictions have determined that damages may be

recovered for any delay that: (1) was not intended or contemplated by the parties to be within the

purview of the provision; (2) resulted from fraud, misrepresentation, or other bad faith on the part of

one seeking the benefit of the provision; (3) has extended such an unreasonable length of time that

the party delayed would have been justified in abandoning the contract; or (4) is not within the
specifically enumerated delays to which the clause applies. See, e.g., Green Int'l, Inc. v. Solis, 951

S.W. 2d 384, 387 (Tex. 1997); United States v. Metric Constructors, Inc., 480 S.E.2d 447, 448

(S.C. 1997); J & B Steel, 642 N.E.2d at 1221; see also Maurice T. Brunner, Annotation, Validity

and Construction of "No Damage" Clause with Respect to Delay in Building or Construction

Contract, 74 A.L.R.3d 187, § 2[a] (1976).

¶27. Though the Commission argues that the "no damages for delay" provision precluded a monetary

award for breach, the Commission submitted an instruction to the jury which tracked the previously

listed exceptions and reflected the instances in which the jury could return a damages award. The

jury's verdict and award of damages implicitly established that the "no damages for delay" provision

was not a bar to recovery of money damages by SCI for the Commission's breach. The Commission's

refusal to grant extensions on a timely basis can reasonably be interpreted as active interference or

bad faith and would justify a damages award. Therefore, the "no damages for delay" provision does

not preclude a damages award in this case.

¶28. The Commission also argues that the amount of the verdict was contrary to the overwhelming

weight of the evidence. However, the Commission only points to variances in testimony, specifically

in the amount of SCI's anticipated profits and the difference between SCI's costs and payments

received for worked performed. That SCI's testimony may have been contradicted by that of the

Commission is, in and of itself, of no consequence. There being substantial evidence to support the

jury's finding that a breach existed and that an award was warranted, the circuit court did not err in

refusing to grant a judgment notwithstanding the verdict.

III. Whether the Circuit Court of Hancock County, Mississippi erred in granting SCI, Inc.,

Motion for a New Trial or for an Additur.

¶29. The Commission alleges next that the circuit court erred in granting SCI's motion for additur.

Although the Commission exercised its option to reject the additur and receive a new trial on

damages, we will address the Commission's argument to the extent that it claims that the circuit court

should not have disturbed the jury award. We apply the following standard in making such a

determination.

". . .[T]he grant or denial of a motion for a new trial is a matter committed to the sound

discretion of the trial court. We reverse only where there has been an abuse of that discretion."

"In considering a motion for a new trial, the trial judge in exercising his sound discretion may

grant the motion thereby overruling the jury's verdict only where such a verdict is against the

overwhelming weight of the evidence or is contrary to the law."

Allstate Ins. Co. v. McGory, 697 So. 2d 1171, 1174 (Miss. 1997)(citations omitted). Similarly, this

Court consistently has held that the test for deciding whether or not to overturn a granting of additur

is whether or not the trial court manifestly abused its discretion. Copeland v. City of Jackson, 548

So. 2d 970, 974 (Miss. 1989).

¶30. In this case, the jury returned a verdict of $2,370,888.85 in favor of SCI. Subsequently, SCI

moved for a new trial or additur on the following grounds: (1) during closing arguments, an attorney

for the Commission made improper comments; (2) the amount of the judgment was inadequate and

was contrary to the overwhelming weight of credible evidence; and (3) the amount of the judgment
evidences that the jury was wrongfully influenced by bias, prejudice and/or passion. The circuit court

granted the additur, pursuant to the standards enunciated in Miss. Code Ann. § 11-1-55 (1991).

¶31. We note that SCI presented testimony from Mike Vickery regarding the rental value of

depreciated equipment, the value of stock items used by SCI, and lost profits due to the

Commission's breach. Further, as was noted by the circuit court below, Jackie Duckworth, the

auditor who testified for the Commission, did not include in his estimate of SCI's loss numerous items

of damages experienced by SCI. In its brief, the Commission argues that the damages incurred and

calculated by SCI were disputed. SCI argued in the hearing on the motion for additur that Vickery's

testimony clearly established the damages recoverable by SCI and that Exhibit 83, a summation of the

damages, was not contradicted. The circuit court below apparently relied heavily on the fact that

Duckworth did not take into account all elements of loss sustained by SCI and therefore concluded

that the overwhelming weight of the evidence supported a greater award.

¶32. The circuit court also determined that another basis for an additur was the improper comment

made by the Commission's attorney. In Dykes v. State Highway Comm'n of Mississippi, 535 So. 2d

1349, 1352-53 (Miss. 1988), this Court reiterated that statements during closing arguments by

counsel for the Commission that the department was working for the jurors as citizens and taxpayers

constituted reversible error. The following statements were made during closing argument by SCI's

attorney:

Prewitt: Time doesn't pay in this game. Crime doesn't pay. Time doesn't pay in the construction

business. This argument that they're going to grant us time sometime later on, it doesn't work.

It's like Bosnia, slaughter the innocent, reward the victims. Let the Goliaths fight it out. We ask

--

The Commission's attorney then interrupted:

Lusk: If Your Honor please -- excuse me, Mr. Prewitt -- I let him get by with two that I wanted

to complain about. One, he refers to MDOT as the people with the money. I think that is --

The Court: I haven't heard that, Mr. Lusk.

Lusk: Sir?

The Court: I haven't heard that.

Lusk: Well, I did. Anyway -- all right, maybe they won't do it again. The second is calling us the

Goliath. That should allow us to call ourselves the stewards for the taxpayers, which we can't

do, and I wouldn't consider doing it."

The circuit court found that the Commission's attorney knowingly made an improper statement in the

jury's presence, and it accordingly determined that the verdict was so low as to have been returned by

a jury impermissibly influenced by bias, prejudice or passion.

¶33. We do not believe that the damage portion of the verdict was contrary to the overwhelming

weight of the evidence, since both the Commission and SCI elicited much testimony regarding the

damages incurred by SCI as a result of the Commission's breach. This testimony did conflict, and
resulted in different expectations for each party. Deferring to the discretion of the circuit court in this

matter and the evidence presented, we cannot say that the circuit court abused its discretion in

originally imposing an additur on behalf of SCI. Nonetheless, we hasten to note our agreement with

the circuit court that the statements made by the Commission's attorney could have improperly biased

or prejudiced the jury. At the same time, the comment by SCI's attorney referring to MDOT as

"Goliaths" in front of the jury probably invited the comment by the Commission's attorney. When

attorneys make comments like these, a disservice is done to all clients. Such commentary only

inflames the minds of jurors. The statements are not in keeping with the oath taken by attorneys, and

they only serve to delay justice. While we will not do so in this case, we reserve the prerogative to

impose sanctions, which may include substantial monetary fines, upon attorneys who make such

statements in the future.

IV. Whether the Circuit Court of Hancock County, Mississippi erred in denying the

Mississippi Transportation Commission's Motion for Leave to File Third-Party Complaint.

¶34. Finally, the Commission relies upon Rule 14 of the Mississippi Rules of Civil Procedure for its

position that the lower court committed reversible error by denying its motion for leave to file thirdparty complaint against certain utility companies. Both parties direct the Court's attention to

Weyerhaueser Co. v. Wells, 593 So. 2d 1010, 1012-13 (Miss. 1992). Relying on the comments to

Miss. R. Civ. P. 14, the Court recognized that the trial court has discretion to disallow a claim even if

it meets the technical requirements of the rule. Id. The Court also noted, "It is apparent that the rule

does not grant a defendant the right to have a third party claim heard by the court in the same action.

The Mississippi trial courts have greater discretion on Rule 14 than the federal courts have." Id. at

1012.

¶35. The Commission argues that since SCI's claims are solely related to the location and nonremoval of the utility conflicts owned by parties other than the Commission, the third-party utility

companies would have been liable to the Commission for all or part of the judgment against it. The

Commission argues that allowing it to add the utility companies would have prevented needless

additional litigation, thus satisfying the rule's purpose of avoiding "circuitous or duplicative actions."

¶36. The circuit court found that, "The Mississippi Transportation Commission has taken no steps

whatsoever, to expeditiously resolve this action, although it noted in its argument that time was of

the essence in completing the project in question." As the commentary to Rule 14 states,

. . .a valid third-party claim that will avoid circuitous or duplicative actions should ordinarily be

permitted, unless it would unduly delay the original action. If the court determines that the

third-party claim would unduly complicate the original action, it should not disallow impleader;

instead, it should permit the claim and order a separate trial as authorized by the rule and by

Rule 42(a).

Miss. R. Civ. P. 14 cmt.

¶37. Once again, we defer to the discretion of the circuit court below because it was in the best

position to determine whether the third party claim was appropriate. Given the court's determination

that the Commission had already delayed the action long enough and that further delay would be

prejudicial to SCI, we find that the court did not abuse its discretion by refusing to allow the
Commission to file a third-party complaint.

CONCLUSION

¶38. Assignments of error II, III, and IV by the Commission are without merit. However, assignment

I, alleging that the circuit court erred in granting summary judgment as to the damages recoverable

by SCI, does have merit. Because genuine issues of material fact remained as to the amount of

damages recoverable by SCI, summary judgment was improper. Accordingly, we affirm as to issues

II, III, and IV, reverse as to issue I, and remand this matter for a new trial on damages only.

¶39. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

PRATHER, C.J., SULLIVAN, P.J., BANKS, SMITH, MILLS AND WALLER, JJ., CONCUR.

ROBERTS, J., CONCURS IN RESULT ONLY. PITTMAN, P.J., NOT PARTICIPATING.

1. However, we also note that the "commencement of trial closes the season for granting motions for

summary judgment," and before a motion for summary judgment can be heard, the moving party

must comply with Miss. R. Civ. P. 56(c). Hurst v. Southwest Mississippi Legal Serv. Corp., 610 So.

2d 374, 384 (Miss. 1992).

2. The clause states that:

. . .no additional compensation will be allowed for delays, inconvenience, or damage sustained

by [the contractor] due to interference from the said utility appurtenances or the operation of

moving them. The engineer's determination that removing, relocating or adjusting of utility

appurtenances or failure of others to do so is causing a delay in major facets of construction

which normally should be in progress will be considered a delay by the state in the

determination of the extension of contract time.. . .