IN THE SUPREME COURT OF MISSISSIPPI NO. 2015-CA-00519-SCT GARY ROLISON, MARTHA ROLISON, GM LANDS, LLC AND ROLISON TIE AND TIMBER COMPANY

, INC.

v. EDITH CAROLY

N FRY AR, CALEB FRY

AR, PINE GROV E TRUCKING, INC., ROBERT A. FRY AR AND OPERATORS INV E STMENT GROUP, P.A. DATE OF JUDGMENT: 02/17/2015 TRIAL JUDGE: HON. ANDREW K. HOW ORTH TRIAL COURT ATTORNEYS: JOHN W EDDLE ALAN LANCASTER REID STANFORD KIRK THARP SHANE McLAUGHLIN BRADLEY TRUETT GOLMAN STACEY W OODRUFF GOLMAN COURT FROM W HICH APPEALED: TIPPAH COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANTS: BRADLEY TRUETT GOLMON STACEY W OODRUFF GOLMON ATTORNEYS FOR APPELLEES: MARVIN REID STANFORD ALAN D. LANCASTER NATURE OF THE CASE: CIVIL - CONTRACT DISPOSITION: AFFIRMED - 12/01/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE DICKINSON, P.J., KITCHENS AND KING, JJ. KITCHENS, JUSTICE, FOR THE COURT: ¶1. Fol l o w i n g court-ordered m ediation, spouses Gary Rolison a n d Martha R olison and Caleb Fry ar and his f

ather, Robert A llen Fry ar, entered into a m ediation s ettlem ent agreem entthat resolved f o ur lawsuits pending between the Rolisons a n d the Fry ars. 1 Af ter a bench trial, the Circuit C o u r t o f Tippah C ounty f ound that the Rolisons had breached the settlem ent
agreem ent, and the court entered a f inal judgm ent pursuant to Mississippi R u le of Civil Procedure 54(b) and postponed hearing the issue of dam ages. The Rolisons appealed f rom the f inal judgm e nt but later dism issed the appeal voluntarily

. Af ter the trial on dam ages, the trial court awarded the Fry ars $399,733.02 i n dam ages, includin g lost prof its and attorney f ees. ¶2. T h e R olisons appeal, arguing that their jury trial waiver was inef f ecti v e , t h e t r i a l court’s R u l e 5 4 ( b ) certif ication was erroneous, and the trial court erroneously denied a

m otion t o intervene f

iled b y two interested par t i e s . Because the Rolisons dism i ssed their appeal f r om the Rule 54(b) f

inal judgm ent, these issues are not bef ore the C ourt. W e do hold that the trial court com m itted no error by f i nding that the Rolisons had w aived their right to

a jury trial on dam a ges and attorney f e es. Further, we r eject the R olisons’ challenges to the trial court’s awards of dam ages and attorney f ees because those awards were supported by substantial, credible evidence. Theref o re, we af f irm the judgm ent of

the trial court. FACTS ¶3. In 2006, the Rolisons p urchased ninet y - s e v e n a c res of land, known a s the sawm ill property , f

rom the Fry ars. Af

t er the purchase, disputes arose between the Rolisons and the Fry a r s concerning o wnership of c ertain equipm ent and m aterials located o n the pr operty

.

1 T h is litig atio n in v o lv ed ap p ellan ts G ary R o l iso n , M arth a R o liso n , G M L an d s, L L C , an d R o liso n T ie an d T im b er, C o ., In c. (th e R o liso n s), a n d a p p e llees E d ith C aro ly n F ry ar, C a leb F ry ar, P i n e G r o v e T r u ck in g , In c., R o b ert A lle n F ry a r, a n d O p erato rs I n v estm en t G r o u p , P

. A (th e F ry ars). 2Litigation ensued i n the Circuit Court of Tippah County , which c o nsolidated f o ur of the cases f or trial. On February 15, 2011, a f ter all parties orally w aived the r ight to a jury trial, the trial

court ordered them t o participate in m e diation in an ef f ort to resolve the f

our cases. The trial

court f urther ordered that “all of the d isputed property rem ain where is, as i s” until the cases

were r esolved. The m ediation occurred on March 2, 2011, and resulted in a settlem ent
agreem ent signed by

Gary Rolison, Martha Rolison, Robert Allen Fry ar, and Caleb Fry ar. ¶4. The m e diation s ettlem ent agreem ent provided that if the Fry ars tendered $400,000 to the Rolisons, the Rolisons would convey the s a w m ill p roperty to Caleb Fry ar and execute

a bill of sale f

or “ all equipm ent and m aterials located on said p roperty as is where i s as of the date of this agreem ent on March 2, 2 0 1 1

. ” 2 A p p r oxim a t ely one w eek later, the Rolisons notif ied the Fry a rs o f their belief that the parties had not reached a valid agreem ent because there had been no m eeting of the m inds. On M ay 24, 2 011, Caleb Fry ar tendered a cashier’s check in the am o unt of $400,000 t o the Rolisons along w ith p roposed settlem e n t docum ents. The Rolisons r eturned the check and docum ents to the F ry ars’ attorney

. Then, the Fry ars f iled

a m o tion to enf

orce the settlem ent agreem ent, claim ing reasonable dam a ges i ncurred due to the delay , plus attorney

f ees. ¶5. A bench trial on the Fry ars’ m otion to enf orce the settlem ent agreem ent occurred on October 21, 2011. The trial court heard testim ony f rom Gary Rolison, Martha Rolison, Gary

2 T h e m ed iatio n settlem en t ag r eem en t a lso p ro v id ed th at, in th e ev en t th e F ry ars d id n o t ten d er $ 4 0 0 ,0 0 0 to th e R o liso n s o n o r b ef o re M ay 3 1 , 2 0 1 1 , th e F ry ars w o u ld h av e th e o p tio n to p u rch a se a tract o f lan d alo n g th e eastern b o u n d ary o f th e saw mi l l p r o p erty f o r $ 4 0 ,0 0 0 . B e cau s e th e F ry ars ten d ered $ 4 0 0 ,0 0 0 to th e R o liso n s b ef o re M ay 3 1 , 2 0 1 1 , th is o p tio n is n o t at issu e in th i s case. 3W a y

ne Rolison, Jr., Caleb Fry ar, and the m ediator, Larry Latham

. The Rolisons argued that there h ad been either a m istake or no m e eting of the m inds on t h e s p e c i f i c equipm ent and

m aterials that they

were to transf

er to Caleb Fry a r f

or $ 400,000. The Fry ars countered that there had been a m eeting of the m inds because the m e d iation settlem e nt a g reem ent stated that the Rolisons agreed to transf er “all” equipm ent and m ateria l s l o c a t ed on the sawm ill property

. The Rolisons also argued that som e of the equipm ent and m aterials on the sawm ill property was owned by their s on, Gary W ay ne Rolison, Jr., and by their logging operation, Rolison Logging/Tim

ber Com pany Trust. Gary W ay ne Rolison, Jr. , and Rolison Logging/Tim

ber Com pany Trust m oved to intervene to protect their interests, arguing that, because they owned the property , it could not h a v e b e e n t ransf e r red to Caleb Fry ar by the

m ediation settlem e nt agreem ent. They requested a declaratory judgm ent that c ertain property rightf ully belonged to G ary W ay ne Rolison, Jr., or Rolison L ogging/Tim ber Com pany Trust. ¶6. The trial court denied the m otion to intervene, f inding that the m otion was untim ely because the litigation had been ongoing f or three y e a rs with no attem pt to intervene. Further, the trial court f

o und that “the relationship between the Rolison[ ]s and the trust is so hopelessly intertwined that it does not f unction as a separate entity ” and that the Rolisons had either e xpress or i m

plied authority to speak f

or the trust at all relevant tim es. T he trial court also f o und that, based on the testim ony of the w i t n esses a nd especially the m ediator, the

m ediation settlem ent a greem ent had been the product of a m eeting of the m i nds, a nd its term s

were clear and unam

biguous. The trial court also rejected the Rolisons’ claim of a unilateral

or m utual m istake. T he issues of dam ages and attorney f e es were p ostponed. Upon a f inding

4of

no just reason f

or delay , the trial court directed the entry of a f inal judgm ent on its grant of the Fry ars’ m otion to e nf o r c e t h e s e ttlem ent agreem e nt. See M.R.C.P. 54(b). At the conclusion of t h e b e n c h t r ial, the trial court ordered a continuing injunction against the

rem oval of

any thing f rom the property

by any one. ¶7. Af ter the Rolisons’ m otion f or a n e w t r i a l w a s d enied on May 3, 2 012, they f iled a ti me l y n o t i c e of appeal. On August 15, 2012, the p arties entered into a second settlem ent
agreem ent providing f

o r the transf

er o f the sawm ill property , but preserving the Fry ars’ claim f or dam ages. Pursuant t o this agreem ent, the Rolisons agreed to dism i ss their pending appeal. On Septem

ber 14, 2012, this Court granted the Rolisons’ m otion to dism i ss their appeal, and the m andate issued on October 8, 2012. ¶8. The issues of dam ages and attorney f ees were tried on January 1 2, 2 015. The Fry ars presented evidence that dam age had occurred to the sawm ill property af ter the Rolisons had breached the m ediation settlem ent agreem ent. They showed that a n of f ice loc ated on the property had sustained water dam age, a retaining wall h ad collapsed due to a water leak, the Rolisons had rem o v ed lum ber and scrap m e tal f

rom the property i n violation of the court’s order, m otors had b e e n rem oved and wires cut on the sawm ill, a nd the scales had been dam aged. The Fry ars also showed that, b ecause of a regulatory c hange d uring the breaching period, they had to m odif y the scales in a m anner that would not have been required due to “grandf athering” if they had obtained the property when prom ised. The trial court f ound that the relevant dates f

or the breaching period were July 1, 2011, which was the undisputed date the Fry ars would have begun sawm ill operations, until S epte mb er 14, 2012, the date the

5Fry a r s would have been able to b egin o perat i o n s af ter they f inally took possession, if the

sawm i ll property had not been i n a s t a te of disrepair. The trial c ourt awarded $231,960.32 f or the costs to repair or replace m issing or dam aged item s and $75,000 i n lost prof its. The trial court f

ound that, because the Rolisons intentionally had disregarded the unam biguous

term s of the m e diation settlem e n t a g reem ent and had r em oved item s f rom the sawm ill propert y i n v i o lation of court orders, their conduct w as so outrageous that it supported the Fry a r s’ claim

f or attorney f

ees in the am ount of

$92,772.70. STANDARD OF REVIEW ¶9. “A circuit court judge sitti n g w i t h o u t a j u r y is a ccorded the s am e def erence with regard to his f

indings as a c hancellor, and his f indings will not be reversed on a ppeal where they are supported by substantial, credible, a nd reasonable evidence.” Brewer Constr. Co., Inc. v. David Brewer, Inc. , 940 So. 2d 921, 925 (Miss. 2006). This C ourt reviews questions of l aw de novo . Upchurch Plum bing, Inc. v. Greenwood Utils. Com m ’n , 964 So. 2d 1100, 1107 (Miss. 2007).
D ISCUSSION 3
I. W HETHER THE T R I AL COURT D ENIED THE ROLISONS’ CO N S TITUTIONAL R IGHT TO A JURY T RIAL U NDER ARTICLE 3, SECTION 31, OF THE MISSISSIPPI CONSTITUTION. ¶10. The Rolisons a rgue that they f ailed t o ef f ect a waiver of their state constitutional right

to a jury trial. Af

ter the trial court consolidated the f our cases, all parties orally w aived their rights to a jury trial and consented to a bench trial

. T h e n t h e trial court ordered m ediation,

3 F o r clarity , w e h av e reo rd ered th e ap p ellate issu es. 6which resulted in a settlem en t

. A f ter the Rolisons f

a iled to perf

orm their duties under the

m ediation se t t l e me n t a g r eem ent, the trial court h eld a bench trial on the Fry ars’ m otion to enf orce the settlem ent agreem ent. No party requested a jury trial and all participated in the b e n ch trial. At the conclusion, the trial court ruled f rom the bench that the Rolisons had breached the m ediation settlem ent agreem ent and denied the m otion to intervene by Rolison Logging/Tim

ber Com pany Trust and Gary

W ay ne Rolison, Jr. ¶11. Approxim ately one m onth later, o n Novem ber 18, 2011, the p arties appeared in court
to try the issues of dam ages a nd attorney f ees. T he Rolisons, now with new counsel, argued that they had not waived their right to a jury trial. The Rolisons contended that their oral jury trial w a i v e r was i nef

f ective because they had not f iled a written waiver under Mississippi Rule of Civil Procedure 38(b). Alternatively , they argued that their oral waiver extended only

to the f our consolidated c a s e s , and that a n ew cause o f action f o r breach of contract had arisen upon their noncom p l iance with the m e diation settlem ent a greem e n t, f o r which they had n o t waived a jury trial. They argued that the Fry ars s hould f ile an am ended com

plaint adding a breach of contract action, and that the rem aining issues of dam ages a nd attorney f ees f or breach of

contract should be tried bef ore a jury

. ¶12. The trial court postponed the trial and ordered the parties to b rief the jury trial waiver issue. O n Decem

ber 9, 2 011, the trial court directed the entry of a f i nal judgm ent under Rule 54(b) with respect to the m a tters that had been adjudicated. T h e Rolisons appealed f rom that jud g m e n t b u t later dism issed their appeal p ursuant to their August 2012 s ettlem ent agreem ent with the Fry ars. On July

15, 2013, the trial court e n tered an order f inding that the Rolisons

7had waived their r ight to a j ury trial a t the February 15, 2011, hearing “ and by subsequent

conduct, r egarding the issue of the enf orceability of the settlem ent agreem ent” and “on the present issue of

any dam a ges resulting f

rom the breach of the settlem e nt agreem ent.” ¶13. On appeal, the Rolisons argue that their oral waiver of a jury trial was inef f ective due to Rule 38(b)’s requirem ent of a written waiver of a jury trial. Rule 38 provides: (a) Right Preserved. The right of trial by jury as declared by the Constitution or any statute of the State of Mississippi s hal l be p reserved t o the parties inviolate. (b) W aiver of

Jury Trial. P arties to an action m ay waive their r ights to a jury trial by f iling with the court a specif i c , w r i t ten stipulation that the right h as been waived a nd requesting that the action b e tried by the c o urt. The court m ay , in its d iscretion, require that the action b e tried by a jury notwithstanding the stipulation of

waiver. M

. R

. C .P. 38(b). The Rolisons a lso argue that they never waived a jury trial o n the F r y a r s ’

new cause of action f

or b r e a c h o f c o n t ract, and that their conduct of orally waiving a jury trial and then f

ully try i ng the breach of contract i s s u e cannot be construed as an ef f ective waiver. ¶14. The Rolisons’ argum ent that they w ere entitled to a jury trial on the issue of whether they breached the m ediation settlem ent agreem e nt is not properly bef ore the Court. This is because, af

ter the bench trial on that issue, the trial court e n t e r e d a f i n a l judgm e nt under Mississippi Rule o f Civil Procedure 54(b). R ule 54(b) provides that “the c ourt m ay direct the entry of a f

inal j udgm e n t a s t o o n e or m ore but f ewer than all of the c l aim s or parties only
upon an expressed determ ination that there is no just r eason f or delay and u

pon an expressed direction f

or the entry of the judgm ent.” M.R.C.P. 54(b). A party h as thirty day s a f t er the date

8a f

inal judgm ent is entered to perf ect an appeal. M.R.A.P. 4(a). If the Rolisons had wished

to appeal the denial of a j ury trial on the issue of whether the m ediation settlem ent agreem ent

was breached, they s h ould have f iled an appeal within thirty day s a f t er the entry of the Rule 54(b) f inal judgm ent. In f

act, the Rolisons did p erf ect an appeal f

ro m t h e Rule 5 4(b) f

inal judgm ent but later d ism issed that appeal. Theref o re, the issue of whether they w ere entitled

to a jury trial on the m atters reso l v e d b y t h e R u le 54(b) f

inal judgm ent is not bef

ore this Court. 4 ¶15. Af ter the entry of the Rule 54(b) f inal judgm ent, the issues of d am ages a nd attorney f ees rem ained bef

ore the trial court. Because the issue of whether the Rolisons were entitled

t o a jury trial solely on d am ages and attorney f ees was n ot encom

passed by the f

i n a l judgm ent, it is properly bef ore this Court. However, the issue is without m erit. The Rolisons cite B urnette v. Hartford U nderwriters Ins. C

o. , 770 So. 2d 948, 951-52 (Miss. 2000), f or the p roposition that the right to a j ury trial cannot b e waived under Mississippi Rule of Civil Procedure 38(b) through im plied conduct. I n B urnette , this Court f ound that the f

iling o f an action in c h a n cery court, where a jury i s not available, did n ot f unction as a waiver of the right to a jury

trial when the case was transf erred to circuit court, where a jury is available. Id. at 952. The Court held that , because the Burnettes had n ot f i led “ a s pecif

ic written

4 T h e F ry ars claim th at th e R o liso n s ’ arg u m en t is b arred b y M ississip p i C o d e S ectio n 1 1 -3 -1 5 (R ev . 2 0 1 4 ), w h ich p ro v i d es th at “[ a] f ter th e d i sm issal o f an ap p eal o r s u p ersed eas b y th e S u p rem e C o u r

t , a n o th er ap p eal o r su p ersed eas s h all n o t b e g r an ted in th e sam e cau se, so as to b rin g it ag ain b ef o re th e C o u rt.” T h e F ry ars claim th at th e R o liso n s raised th e j u ry trial issu e in th eir d ism issed ap p eal an d t h e y c a n n o t raise it ag ain

. We d o n o t ad d ress th is statu to ry arg u m en t b e cau se th e j u ry trial issu e m ay b e reso l v e d f u lly u n d er th e M ississip p i R u les o f C iv il P ro ced u re an d th e M ississip p i R u les o f A p p ellate P r o ced u re. 9stipulation waiving their right to a jury , they have not waived that r ight. Id. Thus, Burnette

held that a party m ay waive the right to a jury trial under R ule 38(b) o nly by f

iling a written waiver. ¶16. In this case, it is undisputed that the Rolisons never f iled a written jury

trial waiver. Theref ore, the trial c ourt erred by f i nding that the y had w aived the right to a j ury trial. However, this Court will af f irm if the trial court reached the c o rrect result, but f or the wrong

reason. Love v. B arnett , 611 So. 2d 2 05, 2 07 ( Miss. 1992). Although the trial court incorrectly d eterm ined that the Rolisons had waived their r i g h t t o a jury trial, w e f ind the issue to be one of f

o rf eiture. “[ W ]aiver is dif

f erent f rom f orf e iture. W hereas f

orf eiture is the f ailure to m ake the tim ely assertion of a right, waiver is ‘ the intention a l relinquishm ent or abandonm ent of a known right.’” U.S. v. Olano , 507 U.S. 725, 733, 113 S. Ct. 1770, 1777, 123 L. Ed. 2d 508 (1993) (quot i n g J o h n s o n v . Zerbst , 304 U .S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461 (1938)). W hen a party f ails t o dem and a jury trial and proceeds to try the case to the bench, the part y , h a v i n g f ailed to exercise the jury trial right in a tim ely

m anner, f orf eits the right to c om

plain. That is what o ccurred in this case. The R olisons tried the breach of contract i ssue to the bench and f a iled to dem and a jury trial until the dam ages phase. Because the Rolisons f orf eited the r ight to a jury trial by f ailing to exercise the right in a t im ely m anner, we af f i rm the trial court’s f

inding that the Rolisons were not entitled to a jury trial on the issues of

dam ages and attorney

f ees. II. W HETHER THE T RIAL COURT E R R E D B Y D I R E C T I N G T H E E N TRY OF THE RULE 54(B) FINAL JUDGMENT. ¶17. Under Rule 54(b), the trial court m ay “direct the entry of a f i nal judgm ent as to one

1 0or m ore but f ewer than all of the parties only upon an expressed determ ination that there is

no just reason f

or delay and upon an expressed direction f or th e e ntry of the j udgm ent.” M.R.C.P. 54(b). This Court h a s held that a decision that l eaves a portion o f a claim pending

as to all d e f

endants m ay not be certif ied as a f i nal, appealable judg m ent under Rule 54(b). Brown v. Collections, Inc. , 188 So. 3d 1171, 1175 (Miss. 2016). The Rolisons a rgue that this prohibi t i o n is im

plicated in this case b ecause the Fry ars brought a single claim , f or breach of the m ediation settlem ent agreem ent, against al l def endants. The Rolisons argue that the trial court erred by direc t i n g t h e e n t r y of the R ule 54(b) f

inal judgm e nt af

ter ruling on the breach of the m e diation s ettlem ent agreem ent. They c ontend that, because the Fry ars’

rem aining requests f

or dam ages and attorney f ees w ere sim

ply dam ages f

o r their breach of
contract claim , they were not separate “claim s” f or the purposes of Rule 54(b).The Rolisons
argue that, because the e ntry of a Rule 54(b) f inal judgm e nt w as erro n e ous, this Court can now address all claim s adjudicated by the Rule 54(b) f

inal judgm ent. ¶18. This Court lacks jurisdiction to address any claim s em braced b y the Rule 54(b) f inal judgm ent. This i s b ecause the Rolisons’ tim e f or appealing that judgm ent has e xpired. A notice of appeal m ust be f iled within thirty day s af

ter the d ate o f the entry of the j udgm ent f rom which appeal is taken. M.R.A.P. 4(a). T h e Rolisons appealed the Rule 54(b) f inal judgm ent; but, when they voluntarily dism i ssed their appeal af ter the expiration of the thirty day period, they lost the opportunity to challenge any issues em braced b y the R

ule 54(b) f

inal judgm ent. ¶19. The Rolisons argue that, b e c a u s e t h e t r i a l c o u r t ’ s R u l e 54(b) certif ication was

1 1erroneous, the judgm ent was n ot f inal, but interlocutory , a n d inef f ective to com m ence the running of t h e t h i r t y d ay tim e f o r appeal. This argum ent is without m erit. “ A j udgm ent

m erely voidable because based upon an erroneous view of the law is not open to collateral attack, but can be correc t e d o n l y b y a direct r eview

. . . . ” Federated Dep’t Stores, Inc. v. Moitie , 452 U.S. 394, 398, 101 S. Ct. 2424, 69 L. Ed. 2 d 103 ( 1981) (citations om itted). This precept a pplies to an e rroneous Rule 54(b) certif ication. “ A R

ule 54(b) c ertif

ication, right or wrong, starts the tim e f

or appeal running.” In re Lindsey , 59 F.3d 942, 951 (9th Cir. 1995). Thus, once a trial court has directed the entry of a f inal judgm ent under Rule 5 4(b), any party

s e eking relief f

rom that j udgm ent, even on the ground that the judgm ent i s, i n f a c t , interlocutory , m

ust perf ect an appeal within thirty d ay s a f t er the entry of judgm ent. Id. W hen

a party perf

ects a n a

ppeal f rom a Rule 54(b) f

inal judgme n t , t h i s Court’s routine jurisdictional inquiry include s d e term ining whether the judgm ent was, in f act, a proper exercise of the trial court’s authority under Rule 54(b). See Brown , 188 So. 3d at 1173. If the judgm ent was interlocutory because the requirem ents o f Rule 54(b) were not m et, this Court has not hesitated t o reverse f or lack of jurisdiction. Id. ; Cox v . H o w a r d , Weil, Labouisse, Friedrichs, Inc. , 512 So. 2d 897, 899 (Miss. 1987). ¶20. Because the R olisons dism issed their appeal, they l ost their opportunity to challenge the issues em

braced by t h e Rule 54(b) f inal judgm ent, including whether the entry of the judgm ent com

plied w i t h R u l e 54(b). The Rolisons’ argum e nt that the R ule 54(b) f

inal judgm ent was interlocutory i s untim ely

. Theref ore, this Court lacks jurisdiction to a djudicate the argum ent. M.R.A.P. 4(a).

1 2III. W H ETHER THE TRIAL COURT E RRED BY DENYING THE

MOTION TO INTERVENE BY GARY W AYNE ROLISON, J R., AND THE ROLISON LOGGING/TIMBER COMPANY TRUST. ¶21. The R olisons com

plain that the trial court erroneously disallowed the intervention of Gary W ay ne Rolison, Jr., a nd the Rolison Logging/Tim ber C om pany Trust. They a rgue that, because these p a rties owned equipm ent a n d m aterial on the sawm ill p roperty , their participation i n the litigation w as necessary . T h ey also contend that the trial court’s f inding that Gary Rolison and Martha Rolison had e x press or a pparent authority to bind their son or the trust was baseless. ¶22. Again, this issue is not properly bef o re the Court. The trial court resolved this issue in i ts bench ruling af

ter the trial on the m otion to enf orce the m ediation s e ttlem ent agreem ent. Subsequently , it entered a Rule 54(b) f inal judgm e nt, f

rom which the Rolisons perf ected, and later dism issed, an appeal. Because the Rolisons dism issed their appeal a n d t h e tim e f or taking an appeal f

rom the Rule 54(b) f

inal judgm ent has long passed, the Rolisons lost the opportunity

to challenge the trial court’s denial of the m otion to intervene. IV. W H ETHER, BECAUSE THE PLAINTIFFS F AI LED TO MITIGATE THEIR DAMAG E S , THE TRIAL COURT E RRED BY FINDING THAT THE BREACHING PERIOD W AS FIFTEEN MONTHS. ¶23. The trial court f

o und that the breaching period was f if teen m onths, with a beginning d a te of July 1, 2011, when the Fry ars would have b egun sawm ill operations had t h e y purchased the sawm i ll property as prom ised, an d a n ending d ate of Septem b er 14, 2012, when the Fry ars would have been able to begin sawm ill operations af ter taking possession pursuant to the second s ettlem ent agreem ent if the sawm ill property had not been in disrepair.

1 3The Rolisons a nd the Fry ars consum m ated the second s ettlem ent agreem ent in August 2012.

This settlem ent a greem ent provided that the Rolisons w ould convey the sawm ill property to the Fry ars by quitclaim deed. It also provided that the Rolisons would convey certain sawm ill equipm ent to the Fry a rs, including the b lue m ill. The agreem e nt stated that the Rolisons had f ourteen day s to rem ove c ertain equipm ent and m aterials f rom the property , including eighty percent of the cy

press lum

b e r and eighty p ercent of the p ine lum b er and tim

ber. The
agreem ent provided that the R olisons would l eave twenty p ercent of the cy press lum ber and twenty percent of the pine lum ber and tim

ber on the property

. In exchange f or all of this, the Fry a r s would pay

the Rolisons $400,000. ¶24. At trial, the R olis o n s s h o w e d t h a t t h e F r y a r s h a d ref used a sim ilar settlem ent
arrangem e nt that they were of f ered on Novem

ber 23, 2011. On that date, the Rolisons of f ered

to execute a quitclaim deed f or the land and a bill of s ale f or the sam e equipm ent, including the blue m ill. But they did not of f er to s ell the Rolisons any of the lum ber on the property

. Signif icant l y , b oth the August 2012 settlem ent agreem ent and the Novem ber 2011 of

f er provided that the Rolisons would get less than “all equipm ent and m aterials located on said property as i s where i s as o f the date of

this agreem ent . . . .” as they had b een prom ised in the m ediation settlem ent agreem ent. ¶25. The R olisons argue that, i f the Fry ars had a ccepted the Novem ber 23, 2011, settlem ent of f er, they wou l d have had the sawm ill operational in the next six w e e ks, prevented nine

m onths of deterioration to the sawm ill property , and likely prevented the thef t and vandalism that f u rther dam a ged the property

. They contend that the F ry ars’ ref usal of the N ovem

ber 23,

1 42011, of

f er was unreasonable and f ailed to m itigate d am ages and, theref ore, the trial court should have lim ited the b reaching period to six mo n t h s . The Fry a rs counter that this
argum ent is “absurd” because they had no duty to m itigate dam ages by accepting less than they had been prom ised in the m ediation settlem ent agreem ent. ¶26. An injured party has a duty to take reasonable s teps to m itigate dam ages. Nat’l Dairy Prods. Corp. v. J

um per , 241 Miss. 339, 334, 130 So. 2 d 922, 923 (1961). Under the doctrine of avoidable consequences, an injured party is n ot e ntitled to recover dam ages which he or she could have avoided through r easonable ef f orts. Manhattan Nursing & Rehab. Ctr., LLC

v. Pace , 134 So. 3d 810, 818 ( Miss. Ct. App. 2 0 14) (citing M unn v. A lgee , 924 F.2d 568, 573 n.9 ( 5th Cir. 1 991) (collecting Mississippi cases)). “This legal p rinciple ‘ deals not with the conduct of a plaintif f c ontributing to his injury , but with his f ailure to a void the
consequences of his injury af ter it has been inf

licted, to avoid or d imi n i s h the dam ages resulting f rom his i njury .’” Manhattan Nursing , 134 So. 3d at 818 (quoting Y azoo & M.V

.R. Co. v. Fields , 188 Miss. 725, 732, 195 So. 489, 490 (1940)). ¶27. This Court rejects the Rolisons’ argum ent that the trial c ourt should h ave lim ited the breaching period to six m onths d ue to their Novem

b er 2011 settlem ent of

f er. The Rolisons’ Novem ber 2 011 of

f er was f or less than the Fry ars were entit l e d to receive under the court order f or p e r f o r mance of the m ediation settlem ent a greem ent. The F ry ars did not act unreasonably by ref

using to enter into a new contract f or less than they had b argained f or in the m e diation settlem ent agreem ent. Although the Fry ars’ negotiation of the A u gust 2012
agreem ent gained them little m ore than the Rolis o n s h a d of f e red in N o vem

ber 2011, the

1 5Fry a r s h ad no duty to m itigate dam ages by entering into a n e w contract f or less than they

w e re entitled to receive under the m ediation settlem ent a g reem ent. See U nited St a t e s v . Sabin Metal Corp. , 151 F. Supp. 6 83, 690 (S.D.N.Y. 1957) (stating that “[ t]he def endant’s of f er to the plaintif

f of som ething other than that t o which it i s entitled as com pensation is not adm issible in m itigation”). V. W HETHER T HE TRIAL COURT ERRED BY A W A R D I N G THE FRY ARS D AMAGES FOR DETERIORATION OF T HE SAW MILL PROPERTY. ¶28. The R olisons argue that l anguage in the August 2 012 settlem ent agreem ent f oreclosed the Fry ars’ recovery f

or deterioration of the s a w mi l l property that occurred during the breaching period. Specif

ically , the Rolisons assert that the August 2012 s e t t l e m e n t a g r e e m ent stated that the Fry ars accepted the sawm i l l p r o p erty and equipm ent “ as is, where is,” as of the date of the agreem ent. But the August 2012 settlem ent agreem ent and the associated bills of s ale do not contain the words “as is, where is” or any other language indicating the Fry ars intended to relinquish their claim f or da ma ges attributable t o the b reached m ediation

s e t t l e m ent agreem ent. To the contrary , the settlem e nt agreem ent stated that “[ t]his Settlem en t Agreem ent in no way com prom ises or addresses the claim f or dam ages that Caleb Fry ar has against the parties to the above captioned l itigation, should h e c h o o se to pursue that cause of action.” In the m otion t o enf orce the sett l e me n t a greem ent, the Fry a rs had claim ed reasonable dam ages incurred due to the delay caused by the Roli s o n s ’ b reach. Thus, the August 2012 settlem e nt agreem ent preserved the Fry ars’ claim f o r dam ages f

or b reach of the

m ediation settlem ent agreem ent, including deterioration of the sawm ill property

.

1 6V I

. W H E T H ER THE TRIAL COURT ERR E D B Y A W A R D I N G D A M A G E S FOR THE STOLEN MOTORS AND STOLEN AND/OR D AMAGED W I RING AT THE MILL. ¶29. T h e F r y a r s s h o w e d that, during the breaching period, several m otors h a d b e e n

rem oved and wiring intentionally was cut and/or rem oved f rom the blue m i ll, which was the

sawm i ll the Fry ars eventually began operating. Investigator J o sh Batem an with the Tippah County Sherif

f ’s Departm ent t estif

ied that three p ersons had b e e n c h a r ged with thef t of

m otors and wiring f

rom the sawm ill property that had been reported on July 6 , 2 012, and July 13, 2012. The Fry ars presented evidence that the m issing m otors had a v alue of $39,433.50. They showed that the dam a ged o r m issing wire had cost $36,827.50 to replace or repair. The trial court accepted the Fry ars’ proof and awarded them

the am ounts claim ed. ¶30. The Rolisons c ontend that the trial court erred by awarding the Fry ars dam ages f or the

m issing m otors a nd m issing or dam aged wiring. First, they argue that the Fry ars’ agreem ent
to a ccept c ert a i n e q u i pm ent at the sawm ill property “as i s, where is” on August 15, 2014, precludes their recovery . A s noted in the d i s c u s s ion of the previous issue, the August 15, 2014, agreem ent does not include the language, “as is, where is,” and it expressly p reserved the Fry ars’ claim f

or dam ages f

or breach of

the m ediation settlem ent agreem ent. ¶31. Second, the Rolisons argue that the Fry ars f ailed to prove that the v alue o f the m issing

mo t o r s w a s $39,433.50. However, even if the extent of dam ages is uncertain, recovery is allowed if the nature of the dam ages is certain. B enchm ark Health Care Ctr., Inc. v. Cain , 912 So. 2d 175, 179 (Miss. Ct. App. 2005). This Court has stated that: [ W ]here i t is reasonably certain that dam age has resulted, m ere u ncertainty as to the am ount will not preclude the r i ght o f recovery or prevent a jury decision

1 7awarding dam ages. This view h as b een sustained where, f r om the nature of the case, the extent of the injur y a n d t h e a m ount o f dam age are not capable of exact and accurate p r oof

. Under such c ircum stances, all that can be required is that the e v i d e n c e – w ith such certainty as the nature of the particular c ase m ay perm it

– l ay a f

oundation which will enable the trier of f act to m ake a f

air and reasonable estim ate of the a m ount of dam age. T he p laintif f will not be denied a substa n tial recovery if he has produced the best evidence available and it is suf

f icient to af

f o rd a reasonable basis f

o r estim ating his loss. Cain v. Mid-South Pum

p Co. , 458 So. 2d 1048, 1050 (Miss. 1984). ¶32. The F ry ars’ p roof that the value of th e m issing m otors was $39,433.50 was a quote f rom supplier JESCO, Inc., to r eplace each t y p e o f m issing m otor with a new m otor. The Rolisons did not ref

ute the reasonableness of these costs. In f act, the Rolisons adm itted that they had c laim ed $55,000 f rom their insurance com

p any f or the v alue of the m i ssing m otors. W e f ind that the Fry ars provided the tr i a l c o u r t a r easonable f oundation to estim ate the dam ages, and the trial court’s decision to award the Fry ars $39,433.50 f or the m issing m otors was supported by substantial, credible evidence. ¶33. Next, the Rolisons argue that they should not have been held liable f or m issing m otors and wire rem o ved f

r om the s awm i ll property by thieves. However, they cite no authority f or this p ropo s i t i o n. “ This Court has repeatedly held that f ailure to cite any authority m ay be treated as a procedural bar.” City of Jackson v. In t e rnal E ngine Parts G

rp., Inc. , 903 So. 2d 60, 66 (Miss. 2005) ( c i t i n g William s v. State , 708 So. 2d 1358, 1361 (Miss. 1998)). Not w i thstanding the procedural bar, the thef t and vandalism i tself evidenced that the Rolisons had f

ailed to secure the property reasonably

against third-party

crim inal activity

. VII. W HETHER THE TRIAL C OURT ERRED BY COMPENSATING THE FRYARS FOR DAMAGE TO THE SCALES.

1 8¶34. A set of scales w as located on the sawm ill property that was used to weig h l ogging

trucks. Ownership of the scales w as disputed between the Rolisons and the Fry ars; however,

at the trial it was established that the F ry ars owned the scales. But, b ecause the scales were located on the sawm ill p roperty w hich the Rolisons o wned, the Rolisons exercised dom inion and control over the scales during the breaching per i o d

. I n f act, at the bench trial on the

m ot i o n to enf

orce the settlem ent agreem ent, Gary W a y n e Rolison, Jr. testif

ied that the Rolisons had paid to have c oncrete poured s o the scales could be recertif ied to com

ply with certain governm ent regulations. ¶35. Caleb Fry a r testif

ied that, w hen the F r y a rs took possession of the property af ter the August 1 5, 2012, settlem ent agreem ent, he d iscovered that the w ires to the s cales had been cut, necessitating repair c osts. He also incurred costs to a dd concrete and a sphalt to level the scales to com

p ly with a n ew regulation. He testif i ed that, if he had gained p ossession of the

sawm i ll p r operty in 2011 pursuant to the m ediation settlem ent agreem e nt, the scales would have been “grandf

athered in,” a nd no m odif ications would have been required to com ply with the new regulation. The trial court awarded the F ry ars the $10,873.02 they claim ed f or dam ages related to the scales. ¶36. The Rolisons a rgue that, because the Fry ars owned the scales, they were not entitled

to r ecover the costs of the cut w ires or the r e q uired m odif

ications to the scales. T hey f urther
argue that, because the Fry ars owned the scales, they and not the Rolisons were responsible f or their upkeep. Further, they argue that, because the Fry ars had owned the scales all along, the scales were “ grandf

athered in” and the Fry a r s were not required to m odif y them and did

1 9so at their own peril.

¶37. W e f

ind that the trial court’s award of the f u ll cost claim ed by the Fry ars to repair and

m odif y the scales was supported by substantial, credible evidence. The dam age to the scales’ wiring occurred when the scales were under the d om i nion and control of the Rolisons. And Caleb Fry ar testif

i ed that the regulation required m odif ication of the scales when they cam e into his p ossession. T he R olisons did not ref ute this testim ony by showing that the regulation required no m odif

ication of the s cales if they w ere under c ontinuous ownership by the sam e individual or entity

. Certainly , the scales were not in continuous o peration, and the regulation

m ay have required the m odif ication when use of the scales resum ed. In any e vent, Ca leb Fry a r ’s testim ony constituted substantial, credible evidence upon which the trial court was entitled to rely

. VIII. W HETHE R THE TRIAL COURT ERRED BY AW ARDING THE FRYARS COMPENSATION FOR MISSING SCRAP METAL. ¶38. During the breaching pe r i o d , the Rolisons’ son, Gary W ay ne Rolison, Jr., rem oved
scrap m etal f

rom the sawm ill property despite the court order not to rem ove any thing f rom the property

. Caleb Fry ar presented photographs o f G ary W ay n e Rolison, Jr., rem oving scrap

m etal, a n d h e testif

ied that approxim ately one-half of the scrap m etal on the property had been rem oved. The trial court f ound that the Rolisons had allowed i tem s t o be rem oved f rom
t h e s a w mill property in violation of the court order. The Fry ars valued the m issing scr a p

m etal at $22,471.95, representing the am ount they h ad received when they sold the rem aining
scrap m e tal. The trial court f ound that the Fry a r s h ad presented the best estim a t e of the value of the m issing scrap m etal, and awarded them $22,471.95.

2 0¶39. The Rolisons argue that the Fry ars were not entitled to com pensation f

or the m issing
scrap m etal because G ary W ay ne Rolison, Jr., w a s n o t a party to the litigation. W ith this contention, they repeat their argum ent that the Rolisons cannot be held liable f or dam age to the sawm ill property caused by third parties. A g a i n , the R olisons cite no authority f or this proposition, so this argum ent is procedurally barred. Internal Engine P arts Grp., Inc. , 903 So. 2d at 66. Notwithstanding the procedural bar, the trial court specif ically f ound that the Rolisons had allowed ot h e r s t o r e mo ve item s f rom the property , i n violation of the court order. ¶40. The Rolisons also argue that Gary W a y n e Rolison, Jr., would h ave been unable to

rem ove the 130 tons o f scrap m etal which the Fry ars claim ed was m issing because rem oving that am ount would h ave required m ultiple eighteen wheelers. T he trial court was f aced with conf licting evidence on the scrap m etal issue. W e f ind that the trial court’s resolution of the conf licting evidence i n f

a vor of the Fry ars was supported by substantial, credible e vidence. I X. W HETHER THE TRIAL COURT ERRED BY AW A RDING THE FRYARS DAMAGES FOR LOST PROFITS. ¶41. The Fry ars claim ed lost prof its of $230,356.47 attributable t o their inability to run the blue m ill during the breaching period. T he trial court f ound that they had pres e nted the testim o ny of “experts with substantial experience” in the sawm ill industry to support the lost prof its claim

. W i th the a ssistance o f the experts, the Fry ars com piled m onthly prof

it and loss projections which were adm itted into evidence. ¶42. The Fry ars’ projections showed they expected to cut an average of 20,000 board f eet of l um ber per d a y . The projections included the num ber of work day s per m onth, the cost of

2 1logs, and the prices at which the Fry ars expected to sell the three ty p es of lum

ber produced by the blue m ill, including crossties, one-inch lum ber, and “cants,” def

ined as f our-by -sixinch l um ber. The projections also included o ther expected costs of producti o n including
pay roll, workers’ com

pensation insurance, and other e xpenses. Caleb Fry ar testif i ed that, f or the breaching period, Koppers, Inc., ha d agreed to b uy all crossties produced, Hassell & Hughes Lum

ber Com pany had agreed to buy all one-inch l um ber produced, and Tenn-Tom Pallet had com m itted to buy all cants produced. Represe n t a t ives f rom Koppers, Inc., and Hassell & Hughes Lum

ber Com pany corroborated Caleb Fry a r ’ s t e s tim o ny about their

com panies’ purchasing com m i tm e nts. T h e g e n e r a l m a n a g e r of a nother lum

ber c om pany gave expert testim ony supporting the Fry ars’ projections. The Fry ars also showed that they had run the blue m ill f

o r approxim ately six day s in D ecem ber 2014 a nd averaged m o re than 20,000 board f eet per day

. ¶43. The Rolisons presented the testim ony of an accountant, Charles L. Davis, Jr., along with d ocum ents showing that Rolison Tie and Tim b er Com pany h ad operated the blue m ill

at a loss in 2006. Davis testif ied that he had com

pared the Fry ars’ projections with the actual operating expenses that Rolison Tie and Tim b er Com pany had i ncurred in 2006 and had concluded that the Fry a r s w o u l d have operated at a l oss during the breaching period. However, it was established that Davis had not considered certain lum ber that Rolison Tie and Tim ber Com pany h ad cut, but not sold, that was l ef t on the sawm ill p roperty

. Nor did he take into consideration that, instead of the f i f t e e n e m ploy ees that Rolison Tie and Tim ber Com pany had used to run the blue m ill, the Fry ars planned t o u s e e i g h t

. Further, Davis

2 2adm itted that the Fry a rs p lanned to cut dif f erent ty pes of wood than Rolison Tie a nd Tim ber Com pany had cut. He a lso adm itted that the goal of cutting 20,0 0 0 b o a r d f e et per day was a conservative estim ate of what the Fry ars could produce. ¶44. The trial court f

ound that the F r y ars h ad sustained lost p rof its during the breaching period. The trial court f

ound f rom the testim ony

of the industry

experts and the accountant that, if the sawm i ll had operated during the breaching period, a s u p p l y o f m aterials and a

m arket had existed f

or the s awm ill’s f

inished products. T h e trial court f o und that this testim o ny “rem oved the q

uestion o f whether r evenue, costs, a n d p r o f it m ight be speculation.” The trial court f

u rther f ound f rom t h e testim o ny o f Sam u el Robert Bradley , a regional director f or Koppers, Inc., that the am ount of m oney available f rom Koppers f

or lending to

sawm i lls h ad reduced drastically f rom the tim e the Fry ars had tendered their purchase m oney
to the Rolisons u nder the m ediation settlem ent agreem e nt a nd when the Fry ars actually took possession of the sawm ill in A ugust 2012. Bradley testif i ed that, if the F ry ars had received the sawm ill when prom ised under the m ediation settlem ent agreem ent, Koppe r s , Inc., had $250,000 available f

or the purchase of logs t o g et t h e m ill running. 5 Bradley testif ied that, due t o changes in the m arket and f unds availability u nrelated to this case, the f unds available

to the Fry ars had been r educed to $50,000. The trial court f ound that the evidence supported

a loss of prof

i t s o f $ 7 5 , 0 0 0

. Thus, the trial court awarded less than half of the lost prof its claim ed by the Fry ars. The trial court did n ot explain how it determ ined this num ber or note which evidence it f

o und m ost credible.

5 C aleb F ry ar t estif

ied th at K o p p ers h a d a g r e e d t o len d h im m o n ey t o b u y lo g s an d to f u n d o p eratin g ex p en ses w ith rep ay m e n t in cro s sties. 2 3¶45. The R olisons a r g u e t h a t t h e F r y a rs’ projections c ontain several m i scalculations which, when c orrected, show that the b l ue m ill would have operated at a loss. First, they contend that the Fry a rs’ claim that they wo u l d h ave p roduced an a v erage of 238 crossties a day is

erroneous, because the evidence showed they would have averaged only 217 crossties a day

. The Fry ars claim ed they would have averaged 10,000 board f eet of c r o s s t i e s per day

. The Fry a r s’ ev i d e n c e that they would have averaged 238 crossties a day was based on the testim o ny of Koppers, Inc., em ploy ee Joe Foley and sawm ill m anager T o n y Jarrell that 10,000 board f

eet would y i e l d a

p p r o x i m a t e l y 2 3 8 s e v e n - by -nine-inch crossties. Thus, the trial court was presented evidence supporting the Fry ars’ projected crosstie production. ¶46. Second, the Rolisons contend that the Fry a rs u nderestim ated the c osts to operate the blue m ill. The Fry ars’ expenses f or t h e approxim ately six day s of operation in Decem ber 2014 showed $158 f

or workers’ com

p ensation insurance and nothing f or taxes and liability insuran c e . T h e R o lisons com plain that the Fry ars’ expert, T ony Jarrell, represented that it would cost $ 4 ,000 per m o nth f or taxes and liability insurance and $2,000 a m onth f or worker’s com

pensation insurance to run the sawm ill. The Rolisons claim that, correcting f or these errors, a proper calculation of operating expenses would m ean th e mi l l c ost $134.56
per thousand board f

eet to operate, not $112.50 as claim ed by the F r y a r s. However, the Rolisons’ expert accountant testif ied that, considering Tony Jarrell’s calculations, $112.50
per thousand board f

eet i n o perating expenses f or the blue m ill was a conservative estim ate. And Tony Jarrell t estif

ied that the cost of workers’ com pensation insurance varies, and that his workers’ com

pensation estim ate of $2,000 per m onth was based on the cost of workers’

2 4com

pensation f

o r h i s own sawm ill, which had increased coverage costs due to accidents. Thus, the trial court w as within its discretion in rely i ng, to whatever e x t e nt it did, on the Fry a r s’ estim ate of tax and insurance expenses. Moreover, the trial court awarded the Fry ars less than half of

their claim

f or lost prof

its. ¶47. Next, the Rolisons attack the Fry ars’ claim that the c ost of logs w as $ 55 per ton. They contend that the Fry ars’ expert, Tony Jarrell, adm i tted that the cost of oak logs was between $60 and $62 per ton, and G ary Rolison testif ied that h e had s old oak logs f o r be t ween $60 and $68 during t h e breaching period. H owever, Caleb Fry ar testif ied that the projections considered that they would buy both oak and m ixed hardwood logs, and Tony Jarrell testif ied that m ixed hardwood logs cost $55 per ton. T h e Rolisons f ail to explain how these dif f erences in log costs would h ave destroy ed the prof itability of the F ry a rs’ m illing operation during the bre a c h i n g period. Im portantly , the trial court a warded the Fry ars less than half of their claim ed lost prof

its. The trial court w as perm i tted to accept, to the extent that it did, the Rolisons’ estim ate of the cost of

logs. ¶48. The Rolisons also com plain that the representative f rom Hassell & Hughes Lum

ber Com pany te s t i f

i ed that, a lthough the com pany h ad c om m itted t o p urchase all the one-inch lum ber the Fry ars produced, the com pany never had bought one-inch lum ber f rom the Fry ars. H o w e v e r , C aleb F ry ar testif ied that he currently was selling all the one-inch lum ber to another c ustom er. Thus, contrary to the Rolisons’ argum ent, the F ry ars did present evidence of a m arket f

or one-inch lum

ber. ¶49. The Rolisons a lso argue that the trial court s h ould have placed m ore weight on the f act

2 5that, i n 2006, Rolison T ie and Tim ber Com pany had r

un the blue m ill at a loss than on the Fry a r s’ projection of f

uture prof its. They also com

p lain that the Fry ars h ad operated the blue

m ill in October and Novem ber 2014 but subm itted no data f or those m onths. “In M ississippi,

a party m ay recover f

or loss of f

uture prof

its in a breach of contract action so long as such prof its are proved to a reasonable certainty a n d not based on m ere speculation or conjecture.” Benchm ark H

e alth Care Ctr. v

. Cain , 912 So. 2d 1 75, 179 (Miss. Ct. A pp. 2005). W hen dam ages have occurred, m ere uncertainty as t o the am ount does not preclude recovery

. Id. (quoting Cain v. Mid-South Pum p Co. , 458 S o. 2 d 1048, 1 050 (Miss. 1984)). “[ A]ll that can be required is that the evidence – with such certainty as the nature of the particular case m ay perm it – lay a f

oundation w hich w ill enable the trier of f a c t t o m a k e a f

air and r easonable estim ate of the a m o unt of dam age.” C a i n , 4 5 8 So. 2d at 1050. The plaintif f is entitled to

recover if he has produced the best evidence a v ailab l e a n d t h at evidence provides a reasonable b asis f

or estim a ting the loss. Id. P urel y speculative evidence of lost prof its is inadequate to support a n a ward. Benchm ark , 912 So. 2d at 180. B ut “ [ s ] om e speculation

m ust be involved in an attem pt to com pute unrealized prof

its.” Id. ¶50. T h e R o l i s o n s argue that, unlike in this c ase, in Benchm ark , the lost f uture prof

i t s evidence was based on past prof its. I d. They f urther argue that, i n Ballard Realty Co., Inc.

v. Ohazurike , 9 7 So. 3d 52 (Miss. 2012), this Court f o und that the plaintif

f had n ot presented adequate evidence of lost prof i ts. In Ohazurike , this C ourt f ound that the p laintif

f ’s proof of lost prof its was unreliable because the p laintif f ’ s expert m e r ely had adopted the plaintif f ’s “grandiose f

igures” and had reduced those am ounts to present v alue. Id. at 61. A nd the expert

2 6f

ailed to deduc t o v e r h e a d , d epreciation, taxes, or inf lation. Id. This Court also f ound that another expert’s testim ony was unreliable because it was based on lof ty estim a tes f

rom the plaintif f ’s business p l an, and the expert had adm itted that h istorical data is a b etter basis f or valuation. Id. at 64. ¶51. W e conclude that the trial court’s award of $75,000 f or lost prof

i ts w as supported by substantial evidence. The trial court f ound that the Fry ars had put f orth the b est evidence of lost p rof its. Unlike Oh a z u r ike , the Fry ars’ projections w ere based on sound testim ony of industry e x perts and i ncluded estim ates f or the anticipated expenses of running the sawm ill. Thus, the projections were not purely speculative, a nd the trial court was entitled t o rely on them

. N otably , the trial c ourt awar d e d t h e F r y ars less than half their projected lost prof its. The Rolisons are entitled to no relief on this issue. X. W HETHER T HE TRIAL COURT ERRED BY A WA R D ING THE FRYARS THE FULL AMOUNT OF ATTORNEY FEES CLAIMED. ¶52. The trial court f

o und that the Fry ars had incurr e d a t t o r n e y f e e s i n t h e am ount of $92 , 7 7 2 .70 in connection with the enf orcem e nt of the breached m ediation settlem ent

a g r e e me n t and that those f ees were reasonable and necessary to e nf orce the s ettlem ent
agreem ent f

ully

. The trial court awarded the f ull am ount of attorney f

ees requested because the Rolisons “intentionally disre g a r d e d the expressed and unam biguous term s of the Mediation Agreem ent and the orders of the Court and rem o ved property or allowed property
to b e rem oved that was subject to the M ediation Agreem ent.” The trial court f ound that this conduct was so outrageous that it supported an award of attorney f ees. ¶53. Generally , a party m ay not recover attorney f e es f or b reach of contract. B l u e w a t er

2 7Logistics, LLC v. Williford , 55 So. 3d 148, 164 (Miss. 2011). However, attorney f ees m ay be awarded if they are provided f o r in the c ontract, or f

o r conduct that is s o outrageous that it would support an award of punitive dam a ges. Id. The Rolisons a r gue that a t torney f ees

w e r e not warranted because they com plied w ith the trial c o urt’s order enf orcing t h e settlem ent agreem ent by m aking the Novem b er 23, 2011, settlem ent of f er to the Fry ars. ¶54. The R olisons’ argum e nt m isconstrues the trial court’s f indings. The trial court f

ound that the Rolisons’ breach of the March 2, 2 011, m ed i a t i o n settlem ent agreem ent was intentional. This f

inding h ad nothing to d o with the order enf orcing the m ediation settlem ent
agreem ent, which the trial court h ad entered a s a rem edy f o r t h e Rolisons’ breach of that
agreem ent. Copious evidence was bef ore t h e t r i al court that the Rolisons’ breach of the

m ediation settlem ent agreem ent was intentiona l, i ncluding the plain language of the

m ediation settlem ent agreem ent and the testim ony of the m e diator that, to all appearances, the Rolisons knowingly

had agreed to its term s when they signed it. Further, the trial court

was conf ronted with evidence that the Rolisons had rem oved item s f rom the sawm ill property , o r had allowed i tem s to be rem oved, in violation of court orders. Theref ore, the trial court’s f inding tha t t h e Rolisons’ wrongf ul conduct was intentional was supported by substantial, credible evidence. ¶55. The Rolisons also argue that the Fry ars were n ot entitled to f ull attorney f

ees because they did not m itigate d am ages by accepting the Novem ber 23, 201 1 , s e t t l em ent of f er. As discussed in Issue IV, the Fry ars’ duty to m ake reasonable ef f o rts to m itigate their dam ages did not include a n obligation to accept the Novem b er 23, 2011, of

f er and t o accept less f

rom

2 8the R olisons than w hat they had bargained f o r i n t he m ediation settlem ent agreem ent. Theref ore, this argum ent is w ithout m erit. The trial c o urt did not err by awarding the Fry ars their f ull attorney

f ees. CONCLUSION ¶56. Because the R olisons dism i ssed their appeal f rom the Rule 54(b) f

inal judgm ent, their

a rgum ents that their jury trial waiver was inef f ective, that the trial court’s Rule 54(b) certif i cation was erroneous, and that the trial court erroneously d enied a m otion to intervene

are not properly bef

ore the Court. The trial court’s f inding that the Rolisons waived their right to a jury trial o n dam ages and attorney f e e s w as not m anif

estly e rroneous. And the trial court’s awards of dam ages a nd attorn e y f ees were supported b y substantial, credible evidence. Theref

o re, we af f i rm the judgm ent of the Circuit Court of Tippah County

. ¶57. AFFIRMED. WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., K I N G , COLEMAN AND B EAM, JJ., CONCUR. MAX WELL, J., CONCURS IN PART A ND IN RESULT WITH SEPARATE WRITTEN OPINION JOINED BY LAMAR, J. MAX WELL, JUSTICE, CONCURRING IN PART AND IN RESULT: ¶58. I agree that the trial court’s f inal judgm ent should b e af f i rm ed. The Rolisons f

orf eited

t h e r ight to a jury through their conduct. And the Fry ars’ award f or dam a ges and attor n e y f ees was supported by

the evidence. ¶59. But I question the Rule 54(b) certif ication a nd the m ajority ’s reliance on the f inality of that judgm ent. To m e, the D ecem ber 2011 judgm ent d eclaring the settlem ent agreem ent enf orceable does not appear to have been a f inal, appeala b l e j u d gm ent—despite its Rule

2 954(b) designation. See M.R.C.P. 54(b). As this Court recently reiterated, Rule 54(b) can be

invoked only “in a relatively select group of cases and applied to an even m o re lim ited category of decisions.” 6 Brown v. C o l l e c t i o n s , I nc. , 188 So. 3d 1 171, 1175 (Miss. 2015). And “decisions that l eave a portion of the clai m p ending as to all def endants” do not f

it in this narrow category

. Id. ¶60. Here, as the m ajority acknowledges, the D e cem ber 2011 order lef

t a p ortion of the Fry a r s’ settlem ent

- e n fo r c e m e nt c laim p ending—i.e., the issues of dam ages and attorney f ees. So according t o o u r precedent, it w as “not a true Rule 54(b) judgm ent.” White v. Mills , 735 So. 2d 4 28, 431 (Miss. 1999) ( holding the grant of sum m ary judgm ent w as “not a true Rule 54(b) j u d g me n t ” because i t “lef t a portion of the claim p ending—i.e., that p ortion dealing with the relief due”); see also C olum L a w F

i r m v. Bd. of Trustees , 16 So. 3d 692, 695 (Miss. 2009) (holding that “th e t rial court’s ruling as to whether the m eeting could be declared void does not properly f all within the purview of Rule 54(b)” because “portions of the claim

— the f actual a llegations and the r em aining pray ers f or relief —are still p ending as
to all the def

endants”). And since it was not a true Rule 54(b) judgm en t , n o a p pellate jurisdiction arose over the Rolisons’ earlier appeal. See Brown , 188 S o . 3d at 175-77 (dism i ssing the appeal s ua s ponte f or lack o f j urisdiction because R

ule 54(b) c e r

t i fication was invalid); W

h i te , 735 So. 2d at 432 (holding, despite no challenge to the Rule 54(b) certif i cation, the Court of

Appeals plainly erred by entertaining the appeal).

6 “For a n order or judgm ent to qualif y f or Rule 54(b) f

i nality , the case m

ust include: (1) either m

ultiple c laim s, m

u ltiple parties, or both; and (2) either o ne or m ore but f ewer than all claim s m

ust have been d ecided or all rights and liabilities of at least one party m ust have been adjudicated.” Brown v. Collections, Inc. , 188 So. 3d 1171, 1175 (Miss. 2015). 3 0¶61. It is this l a c k of a ppellate jurisdiction that distinguishes this case f rom the Ninth Circuit case the m ajority cites, I n re Lindsey , 59 F .3d 942, 9 51 ( 9th Cir. 1995). I n that case, the d istrict court m a de a Rule 54(b) certif ication without m aking the requisite on-the-record f indings. Still, the Ninth Circuit held that the Rule 54(b) certif ication triggered the tim e to appeal because the “lack of

. . . f i ndings is not a jurisdictional def ect.” Id. See also Cox v. Howard, Weil, Labouisse, Friedrichs, Inc. , 512 S o. 2d 897, 9 01 (Miss. 1987) (suggesting, but not requiring, the “trial court to set f orth specif

ic reasons a nd f

indings pref

atory to entering a Rule 5 4 (b) j udgm ent”). But here, the def ect is j urisdictional. This is not a case where the trial court s hould not have certif ied a s f inal a j udgm ent disposing of less than all claim s. See, e.g., Cox , 512 So. 2d at 901. Rather, this is a case where the trial court could

not certif y its d ecision as f

i nal, because it did not dispose of a n y claim

. See, e.g. , Brown , 188 So. 3d at 175-77; White , 735 So. 2d at 432. ¶62. So the Rolisons have not “lost their opportunity to challenge the issues em braced by the Rule 54(b) f

inal judgm ent,” b ecause no such opportunity arose in the f irst place. Had the Rolisons p ursued their prior appeal—as the m ajority f inds they should have—this Court could not have addressed the issues raised, due to the lack of a ppellate jurisdiction. Instead, it was o nly when the s ettlem ent-enf orcem ent claim was f

ully resolved i n February 2015 that all underly ing issues becam e f inal and appealable. ¶63. That said, there is no m erit to the Rolisons’ j ury -trial argum ent. As the m ajority points out, the Rolisons litigated the enf orcem ent issue through a bench trial “without objection and without dem anding a jury trial.” So they f o rf eited their right t o a jury trial. And because of

3 1this f

orf eiture, I concur with the m ajority that the trial court did not e rr by c o n t i n u i n g the bench trial on the issues of dam ages and attorney

f ees. ¶64. I also concur with the m ajority ’s holding that the trial c ourt did not err in deny ing the

m otion to intervene and in determ ining appropriate am o unt of dam ages a n d a t t o r ney f ees. Thus, I concur in part and in result. LAMAR, J., JOINS THIS OPINION.

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