                    IN THE SUPREME COURT OF MISSISSIPPI

                                   NO. 2005-CA-01689-SCT

UPCHURCH PLUMBING, INC. AND TRICONEX
SYSTEMS, INC.

v.

GREENWOOD UTILITIES COMMISSION


                           ON MOTION FOR REHEARING

DATE OF JUDGMENT:                          07/12/2005
TRIAL JUDGE:                               HON. W. ASHLEY HINES
COURT FROM WHICH APPEALED:                 LEFLORE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:                  BRENDA B. BETHANY
                                           C. MICHAEL ELLINGBURG
ATTORNEYS FOR APPELLEE:                    PHIL B. ABERNETHY
                                           THOMAS M. FLANAGAN, JR.
NATURE OF THE CASE:                        CIVIL - CONTRACT
DISPOSITION:                               AFFIRMED - 08/30/2007
MOTION FOR REHEARING FILED:                05/14/2007
MANDATE ISSUED:


       EN BANC.

       CARLSON, JUSTICE, FOR THE COURT:

¶1.    The motion for rehearing is denied. The original opinion is withdrawn, and this

opinion is substituted therefor.

¶2.    The Leflore County Circuit Court, after conducting a bench trial, entered judgment

in favor of Greenwood Utilities Commission and against Upchurch Plumbing, Inc., and

Triconex Systems, Inc., in the total amount of $2,622,451.96, plus post-judgment interest.
Upchurch Plumbing, Inc., and Triconex Systems, Inc., appeal the trial court’s judgment.

Finding no error, we affirm.

               FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶3.    In May 1993, the Municipal Energy Agency of Mississippi (MEAM) contracted with

General Electric Company (GE) for a major upgrade of three generating units at Greenwood,

Yazoo City, and Clarksdale. With the written consent of GE, the Greenwood portion of that

contract was fully assigned by MEAM to Greenwood Utilities Commission (Greenwood).1

In January 1995, Greenwood contracted with Upchurch Plumbing, Inc., (Upchurch) for an

upgrade of the control system for its General Electric Frame V combustion turbine.

Upchurch subcontracted with Triconex Systems, Inc., (Triconex) for the hardware and

installation of a digital control system for the turbine, in accordance with what is referred to

by the parties as Contract 103.

¶4.    Marion Flanagan was Greenwood’s manager of the turbine project, and Kimble Kelly

was Greenwood’s plant superintendent, with responsibility for daily operations at

Greenwood. On November 10, 1995, Hamid Niakian, a control systems specialist for

Triconex, went to Greenwood for on-site testing of the turbine. An attempt to start the

turbine at the rated speed of 4,860 RPM ended when the mechanical overspeed bolt tripped

and shut the turbine down at a speed reported as 4,000 RPM on the Triconex controls.

Niakian asked that a Greenwood employee assist him with the testing of the turbine using


       1
       Greenwood is an electric company owned and operated by the City of Greenwood,
and Greenwood is a member of MEAM.

                                               2
a Strobotac instrument2 by pointing the Strobotac instrument at a designated place while

Niakian viewed the digital RPM readout in the control room. Greenwood, without objection,

provided Jerry Shaw, Greenwood’s maintenance supervisor, who had never conducted that

specific type of test using a Strobotac instrument. Shaw used a Strobotac instrument owned

by Greenwood.

¶5.    Shaw placed the Strobotac instrument onto some portion of the turbine shaft and

called out the speed readings into the control room area to Niakian, Bobby Bennett, a

Greenwood electrical engineer, and Yu-Gene Chen, a GE engineer. The readings reported

by Shaw confirmed the speed reported by the Triconex controls at each point, which led

everyone involved to believe that the readings were correct. Thus, Lane Richard, a GE

engineer in New Orleans, was contacted, and Richard directed Greenwood to adjust the

overspeed trip bolt. Pursuant to Chen’s instructions, Doug Elmore, a Greenwood employee,

constructed a wrench and adjusted the mechanical overspeed bolt. The unit was started

again, and when the unit reached normal operation speed, it experienced excessive vibration.

Triconex was released from the job site pending resolution of the problem.

¶6.    On February 9, 1996, Dean Walters, a GE service engineer, tested the turbine speed

using a digital tachometer.       The turbine tachometer showed the turbine was actually

operating at a speed of 6,560 RPM, while the new Triconex control system showed a speed

of 4,860 RPM. GE instructed Greenwood not to operate the turbine any longer, because the



       2
           A Strobotac instrument is an instrument for measuring the speed of a rotating object.

                                                3
overspeed event had caused damage. Triconex’s software for the control system contained

a programming defect. Instead of using a 1:1 ratio between the turbine shaft and unit speed,

the software used a 1:1.35 ratio, which corresponded to the auxiliary shaft rather than the

turbine shaft. The result was an incorrect speed readout, which caused the turbine to run too

fast during testing; as a result, the turbine rotor was damaged beyond repair and had to be

replaced.

¶7.    Greenwood originally filed suit against GE, Upchurch and Triconex in the Chancery

Court of Leflore County on June 24, 1996. Greenwood’s complaint requested that the

chancery court grant, inter alia: (1) a declaratory judgment adjudicating which defendants

were liable for the damage and repair to the unit; (2) an injunction mandating that the liable

defendants repair the unit and specifically perform their contracts; (3) actual damages; (4)

punitive damages; (5) prejudgment interest; (6) costs; (7) attorneys’ fees; and (8) any other

damages or relief as the court might find just. Subsequently, on September 17, 1996, GE

filed its Motion to Transfer to Circuit Court, and Motion to Transfer Venue to Hinds County,

pursuant to Miss. R. Civ. P. 12. GE argued that the chancery court did not have subject

matter jurisdiction over a breach of contract claim where monetary damages, rather than an

injunction, is the appropriate remedy. Additionally, GE argued that it could not get a fair

trial in Leflore County because of press coverage concerning the incident with the unit.

¶8.    On February 4, 1997, Chancellor Jon Barnwell entered an order finding that the

chancery court did have subject matter jurisdiction and further ordered GE to investigate the

damage to the unit, identify repairs necessary to correct the damage, and provide an estimate

                                              4
of the cost of the necessary repairs. Chancellor Barnwell also ordered Greenwood, within

ten days of receiving the quote from GE, to issue a purchase order to allow GE to proceed

with the work pursuant to the quote, and directed Greenwood to pay GE for the completed

repairs. On December 11, 1997, Chancellor Barnwell entered an agreed amended order by

the parties allowing Greenwood to contract with GE for the actual repairs. On March 1,

2000, Chancellor Barnwell entered another order granting Defendant’s Motion to Transfer

to the Circuit Court of Leflore County.

¶9.   After years of discovery, this case eventually was scheduled to be conducted as a

circuit court jury trial with Judge Ashley Hines presiding, on May 5, 2003, but it was

rescheduled for September 8, 2003. However, on September 3, 2003, Judge Hines entered

an Agreed Order Continuing Trial Setting and Resetting for Bench Trial. Judge Hines

ultimately conducted a bench trial October 7-9, 2003, and issued his Findings of Fact and

Conclusions of Law on October 18, 2004, which we quote verbatim:

      1.     In the 1990s the Plaintiff, Greenwood Utilities Commission
             (“Greenwood Utilities”), began an upgrade project on its Frame V Gas
             Turbine (“the turbine”) at its Henderson Generating Station.
      2.     In order to upgrade the turbine, Greenwood Utilities entered into a
             contract with Upchurch Plumbing, Inc. (“Upchurch”). Pursuant to this
             contract Upchurch was to design and install a digital control system for
             the turbine. Upchurch then subcontracted with Triconex Systems, Inc.
             (“Triconex”) for both the design and installation of the control system.
      3.     Greenwood Utilities entered into a separate contract with General
             Electric Company (“GE”) to produce the mechanical upgrade of the
             turbine and to complete its reinstallation at the Henderson Generating
             Station.
      4.     The control system designed by Triconex was defective. The system
             required the input of data by which the controls determined the turbine
             shaft speed. Triconex chose to place the data sensors on an auxiliary

                                            5
      shaft without ascertaining the speed of the auxiliary shaft. Since the
      auxiliary shaft turned at a different speed than the turbine shaft speed
      the data sensors caused the control system to indicate a lower operating
      speed for the turbine than the actual operating speed.
5.    The turbine featured an overspeed trip device which would stop the
      turbine if it exceeded a designated speed. During the installation and
      start up of the control system, the overspeed bolt tripped at the reported
      speed of 4,000 RPM. This was considerably below the designated trip
      speed of 5,346 RPM. Triconex engineer Hamid Niakian sought to
      confirm the actual turbine speed by independent testing. Greenwood
      Utilities employee Jerry Shaw assisted in this testing. Mr. Shaw
      entered the small confined area of the turbine with a strobotac
      instrument. Mr. Shaw, using the strobotac instrument, checked the
      speed of the turbine and called out the speed to Mr. Niakian who was
      in the control room. The speeds confirmed by Mr. Shaw matched those
      indicated by the Triconex controls.
6.    Mr. Shaw’s competence was called into question by the defendants at
      trial. However, no party ever offered any evidence to prove that Mr.
      Shaw was not competent or that his readings were incorrect. Mr. Shaw
      testified that he took speed readings from the shaft pursuant to the
      instructions of Mr. Niakian. Since the speeds obtained by Mr. Shaw
      were the same as those indicated by the Triconex control device, the
      Court is led to the only logical conclusion; that Mr. Shaw correctly took
      readings from the auxiliary shaft just as he was directed by Mr.
      Niakian. It is logical that Mr. Niakian would direct Mr. Shaw to the
      auxiliary shaft, since that is where Triconex placed the data sensors.
7.    After confirmation of the speed by independent means, Greenwood
      Utilities adjusted the overspeed bolt in reliance on Triconex’s faulty
      design. This led to the operation of the Turbine at a speed of at least
      6,932 RPM, causing irreparable damage to the turbine.
8.    The Court finds that the Triconex controls, if properly designed, should
      have prevented the overspeed incident regardless of the operation of the
      overspeed bolt.
9.    Under its contract Triconex was obligated to deliver a working system.
      The system that was installed was defective. Accordingly, the Court
      finds that Triconex is liable to Greenwood Utilities for Breach of
      Contract.
10.   The Court finds that GE did not breach its contract with Greenwood
      Utilities. GE had no obligation under its contract to second-guess the
      Triconex design.


                                      6
11.   The Court finds that Greenwood Utilities has sustained the following
      losses:
      1. Initial repair contract with GE........................$1,500,000.00
      2. Additional repair work outside the scope of the repair
      contract, but related to the overspeed event...........$225,806.86
      3. Collective cost to purchase additional capacity to meet
      contractual obligations from June, 1996 through September,
      1996...........................................................................$27,500.00
      4. Prejudgment interest at the rate of 8% per annum on the
      $1,500,000.00 payment to GE for the repair to the unit since the
      date of payment in this case ($600,000.00 on 3/13/1998,
      $450,000.00 on 9/9/1998, and $450,000.00 on 11/21/1998)
      pursuant to § 75-17-7 of the Mississippi Code of 1972. The
      Court calculates the pre-judgment interest to be.....$748,000.00
                                                            Total...........$2,501,306.56
12.   The Court finds that Greenwood Utilities is not entitled to all amounts
      included on the GE invoice for additional repair work outside the scope
      of the repair contract, as Mr. John Nugent of GE testified that item 1
      ($2,292.10) was not related to the overspeed event, and that he did not
      know whether item 10 ($61,379.87) was related to the overspeed event.
13.   The Court finds that Greenwood Utilities is not entitled to the collective
      cost to purchase additional capacity to meet contractual obligations
      from July 1997 through October, 1998, or revenues lost for reduced
      capacity sales to MEAM from July, 1998 through September 1998, as
      Greenwood Utilities had a duty to mitigate its damages, which it failed
      to do. See F[r]ierson v. Delta Outdoor, Inc., 794 So.2d 220 (¶14)
      (Miss. 2001); Wall v. Swilley, 562 So.2d 1252, 1258 (Miss. 1990);
      Lovett v. E.L. Garner, Inc., 511 So.2d 1346, 1353 (Miss. 1987).
14.   The Court finds that pre-judgment interest should be awarded on the
      cost to repair the turbine from the date of payment. This amount was
      known to the parties. The defendants assert that they should not be
      liable for pre-judgment interest due to the undetermined contribution
      of Greenwood Utilities to its own damage. In the Court’s view, this
      reliance on the negligence of Greenwood Utilities is misplaced. There
      was never any evidence that Mr. Shaw’s readings were incorrect or that
      he was negligent in any way. Accordingly, it was unreasonable for the
      defendants to rely on Greenwood Utilities’ alleged negligence as a
      defense. The pre-judgment interest is awarded to compensate
      Greenwood Utilities for the loss of use of its money.
15.   The Court finds that the contract between Greenwood Utilities and
      Upchurch provided for an award of attorney’s fees. Accordingly, the

                                             7
              Court will conduct a post judgment hearing to determine the amount of
              attorney’s fees.
       16.    It is clear that Greenwood Utilities never paid the $119,835.00 owed to
              Upchurch and Triconex. Accordingly, Upchurch and Triconex’s
              motion to amend is granted. The amount of $119,835.00 is awarded to
              Upchurch and Triconex which shall be set-off against the judgment
              against Upchurch and Triconex.
       17.    Accordingly, Judgment shall be entered in favor of the Plaintiff,
              Greenwood Utilities Commission, and against Upchurch and Triconex
              in the total amount of $2,381,471.56.
       18.    The (sic) was no dispute that Greenwood Utilities is liable to GE on the
              counterclaim of $289,478.83. Accordingly, Judgment shall be entered
              in favor of GE and against Greenwood Utilities in the total amount of
              $289,478.83.[3 ]

¶10.   On October 25, 2004, Upchurch and Triconex filed a Motion to Amend the Findings

of Fact Pursuant to Rule 52(b) of the Mississippi Rules of Civil Procedure. Upchurch and

Triconex stated in their motion, inter alia:

       Specifically, the following Findings of Fact are not supported by substantial
       evidence and should be amended with the conclusions based on such findings:

              A.     That Mr. Shaw took readings on November 10, 1995, off
                     of an auxiliary shaft as directed by Mr. Niakian;
              B.     That Mr. Shaw correctly took the readings he reported
                     and which were relied upon by GU, GE, and Triconex;
              C.     That Mr. Shaw was competent to perform the task of
                     taking accurate turbine speed readings for which he was
                     provided by GU;
              D.     That Triconex’s controls system was defective on
                     November 10, 1995; and
              E.     Other related findings of fact and conclusions detailed in
                     the attached Memorandum of Evidence and Authorities
                     Submitted in Support of Upchurch Pluming, Inc.’s (sic)


       3
        This final judgment in favor of GE and against Greenwood was entered on October
18, 2004. During the pendency of this appeal, GE was dismissed as a party by order of a
three-justice panel of this Court.

                                               8
                     and Triconex Systems, Inc.’s Motion to Amend Findings
                     of Fact Pursuant to Rule 52(b) of the Mississippi Rules
                     of Civil Procedure.

¶11.   On February 1, 2005, Judge Hines heard Greenwood’s Motion for Attorney’s Fees.

On July 14, 2005, Judge Hines entered: (1) an order denying the Motion to Amend the

Findings of Fact filed by Upchurch and Triconex; (2) an order awarding attorneys’ fees to

Greenwood; (3) and final judgment in favor of Greenwood and against Upchurch and

Triconex, “in the amount of $2,381,471.56 pursuant to the Court’s findings on October 13,

2004, plus attorney fees in the amount of $240,980.40 for a total amount owed of

$2,622,451.96 . . . with post-judgment interest at the annual rate of 8% until paid. Post-

judgment interest shall run on the original judgment from October 13, 2004 and on the

attorney fees from the date of this order.”

¶12.   On July 21, 2005, Upchurch and Triconex filed a postjudgment Motion for Judgment

as a Matter of Law or, Alternatively, Motion to Alter, Amend or Vacate the Judgment, or

Motion for New Trial, which Judge Hines denied on August 3, 2005.

¶13.   Upchurch and Triconex 4 then timely perfected their appeal to this Court.




       4
        Triconex’s brief states: “Triconex has assumed the defense of and is indemnifying
Upchurch since all events complained of in the underlying action occurred while Triconex
was onsite testing the computerized controls system for the turbine under the provisions of
the Upchurch contract expressly incorporated into the Triconex subcontract.” Therefore, we
will refer to Triconex and Upchurch collectively as “Triconex.”

                                              9
                                        DISCUSSION

¶14.   Eight issues are before this Court: (1) whether the factual determinations made by the

trial court are manifestly wrong; (2) whether the Mississippi Uniform Commercial Code is

applicable; (3) whether obtaining assistance from Greenwood during on-site testing of the

control systems was a breach of contract by Triconex; (4) whether Greenwood’s providing

personnel and instrumentation for on-site testing waived the contractual requirement for

Triconex to provide all personnel and instrumentation; (5) whether Greenwood can recover

on its negligence theory; (6) whether attorneys’ fees are allowed by contract; (7) whether

there was sufficient proof as to the reasonableness of attorneys’ fees; and, (8) whether

Greenwood met the legal prerequisites to be entitled to an award of prejudgment interest.

¶15.   Questions of law are reviewed by this Court using a de novo standard. A&F Props.,

LLC v. Madison County Bd. of Supervisors, 933 So. 2d 296, 300 (Miss. 2006); Harrah’s

Vicksburg Corp. v. Pennebaker, 812 So. 2d 163, 170 (Miss. 2001). On the other hand,

“[w]henever this Court considers on appeal a trial judge's findings of fact, we appropriately

afford deferential treatment. Even though we quite often review circuit court cases based

upon judgments entered after a jury trial, whenever we are called upon to consider the

findings of fact of a circuit judge sitting without a jury, that circuit judge is entitled to the

same deference concerning his/her findings of fact as is afforded to a chancellor, who almost

always sits, without a jury.” City of Greenville v. Jones, 925 So. 2d 106, 109 (Miss. 2006)

(citing City of Jackson v. Perry, 764 So. 2d 373, 376 (Miss. 2000); Puckett v. Stuckey, 633

So. 2d 978, 982 (Miss. 1993)). In other words, if the trial judge’s findings of fact are

                                               10
supported by substantial, credible and reasonable evidence, we must afford deference to these

findings on appeal, and thus, we will not disturb the trial judge’s findings of fact “unless they

are manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Perry,

764 So. 2d at 376 (citing Puckett, 633 So. 2d at 982; Bell v. City of Bay St. Louis, 467 So.

2d 657, 661 (Miss. 1985)). This Court reviews a trial judge’s award of attorneys’ fees and

prejudgment interest for abuse of discretion. Microtek Med., Inc. v. 3M Co., 942 So. 2d 122,

130 (Miss. 2006); Mabus v. Mabus, 910 So. 2d 486, 488 (Miss. 2005) (citing Mauck v.

Columbus Hotel Co., 741 So. 2d 259, 269 (Miss. 1999); Bredemeier v. Jackson, 689 So. 2d

770, 778 (Miss. 1997)).

¶16.   We will restate the issues for clarity during the course of our discussion.

       I.       WHETHER THE FACTUAL DETERMINATIONS MADE BY
                THE TRIAL COURT ARE MANIFESTLY WRONG.

¶17.   Concerning this first issue, Triconex argues, inter alia, that the trial judge erroneously

determined that Shaw took his speed readings off the auxiliary shaft, rather than directly off

the turbine shaft, during the testing conducted on November 10, 1995. On the other hand,

Greenwood argues that the evidence is not conclusive as to whether Shaw took his readings

off the auxiliary shaft or directly off the turbine shaft. However, Greenwood argues that

even if the trial judge did err, this issue is not controlling as to whether Triconex breached

the contract.

¶18.   After denying Triconex’s Motion to Amend the Findings of Fact, Judge Hines stated

in his Order:


                                               11
Upchurch and Triconex in their memorandum in support of the motion repeat
from the transcript the following testimony of Jerry Shaw:
       Q.     And where did you locate yourself with the strobe light?
       A.     It’s a little compartment behind the accessory gear box.
              Between there and the turbine.
       Q.     Was there anybody who told you to select that place?
       A.     Well, I was – I don’t remember in – who particular. I
              suppose – Hamid, I suppose. They wanted to get on that
              shaft.
       Q.     When you say “get on that shaft,” what are you referring
              to?
       A.     It’s the shaft between the accessory gear box and the
              turbine.
       Q.     So this would have been the actual turbine shaft that you
              were going to be shining the strobe light on.
       A.     Well –
       Q.     Or a portion.
       A.     Right. That’s correct.
Transcript 165:2-20 (emphasis added).

The Court accepts this testimony and finds as a fact the speed measurement
was taken from something attached to the shaft, but not the shaft itself. It is
only logical that Hamid Niakian would tell Mr. Shaw to take the measurement
there since that is where Triconex placed the speed sensor device.

The Court rejects the testimony of Lane Richard regarding the placement of
the strobe device because he was not present when the events occurred, and his
testimony is therefore not as reliable as Mr. Shaw’s testimony. Likewise, the
Court rejects the direct testimony of Bobby Bennett, Hamid Niakian, Edgar
Alan Walters, because none of it was based upon eyewitness observation, but
rather what each witness heard from someone else. The Court also rejects
Triconex’s argument that Mr. Shaw did not know how to use the strobe device.
Mr. Shaw demonstrated later that he knew how to use the strobe device. See
Transcript 170.

The argument presented by Upchurch and Triconex ignores a fundamental
issue. Triconex designed the system using the speed of an auxiliary shaft to
measure the speed of the main turbine shaft without adjusting for the fact that
the shafts did not operate at the same speed. This failure occurred despite the
fact that this variation in speed was detailed in the General Electric Company


                                      12
       manual which Triconex used in the design. This seems to the Court would be
       an elementary fact to an engineer.

       Triconex designed a system and allowed it to be installed and operated with
       such a fundamental flaw that its malfunction caused a catastrophic loss.
       Triconex cannot hide behind the fact that they failed to bring the proper
       equipment or sufficient personnel to the site. If Triconex had properly
       designed the system and brought the proper equipment and personnel to the
       site, the damage to the turbine would never have occurred. This constitutes a
       breach of their contractual obligations. Accordingly, Upchurch’s and
       Triconex’s motion is denied.

¶19.   Triconex cites specific testimony in the transcript and record in an effort to prove that

Judge Hines erred in his findings of fact. Triconex argues that the testimony shows, contrary

to the trial judge’s findings, that Shaw took his readings directly off the turbine shaft rather

than the auxiliary shaft. Triconex further argues that the evidence established that Shaw

unforeseeably provided erroneous turbine speed readings on which everyone involved relied.

Finally, Triconex argues that the testimony presented at trial demonstrated that Shaw was not

competent to operate a Strobotac instrument. On the other hand, Greenwood presents

portions of testimony that it claims support the trial judge’s findings. Even though this case

is obviously fact-intensive, we will set out the facts as succinctly as possible, and quote only

the testimony we deem critical to this discussion, so as to avoid endless quotations from the

record.

¶20.   With this being said, we quote here portions of the testimony of Lane Richard, the GE

engineer:

       Q.     Do you recall Dean Walters issuing a report to you saying that when he
              went to the plant, he and Jerry Shaw, he took his handheld digital tach


                                              13
              and Jerry Shaw took the Greenwood Utilities strobe and they both
              tested them against the boiler feed pump?
       A.     Well, you know, actually, Jerry Shaw – I’ve never heard the name Jerry
              Shaw except in preparation for this. So he didn’t mention Jerry Shaw’s
              name, but he did mention he got with the guy with Greenwood that had
              used the strobotac. And it sounds familiar that they went to some piece
              of equipment in the plant and compared speed values.
       Q.     And they got the same number.
       A.     Seems like they did, yes, sir.
       Q.     Which suggested whoever was operating that thing was operating it
              properly, correct?
       A.     Yes, sir.
       Q.     And then later on that day, they went out and they both sat down on the
              generator.
       A.     Yes, sir, they did.
       Q.     And Mr. Walters confirmed that he had a speed reading on the
              generator of 900, and he looked over and the Greenwood Utilities
              employee had a speed reading on the strobe of 900, or that was
              communicated to him.
       A.     Yeah, that’s correct. And actually, it just so happened the speed ratio
              of that auxiliary gear shaft matches almost to the rpm the speed of the
              generator as well. So, again, Triconex’s readout was exactly what
              these guys were reading, except they were on the generator rotor. And
              at the time the Greenwood person, I think, made the comment to Dean,
              “See, right on the money.” And that’s when Dean said, “Wait a second,
              man. Right on the money, yeah, but there’s a gearbox between us and
              the turbine.”
       Q.     But my point is, is that if the GE employee using the strobe is standing
              next to Dean Walters using the digital handheld tachometer and they’re
              getting the same number, that doesn’t suggest that the Greenwood
              Utilities employee was doing anything wrong in his use of the strobe,
              does it?
       A.     That’s correct.

(Emphasis added).

¶21.   It is readily apparent from the record that Judge Hines, as the fact-finder in this bench

trial, acted within his discretion in finding that Shaw must have placed his Strobotac on the

auxiliary shaft. Judge Hines did not pull this idea out of a hat; Richard testified that the

                                              14
speed of the auxiliary shaft, which has a 1:1.35 ratio, matched the overspeed. The turbine

shaft has a 1:1 ratio. Judge Hines, as the factfinder, had the discretion to disregard as

unreliable the testimony of witnesses who were not present during the testing. We likewise

find that Judge Hines acted within his discretion in finding that Jerry Shaw was competent

to use the Strobotac instrument and that he used it properly. In sum, after a meticulous

review of the entire record, including the testimony of the witnesses, we are left with the

inescapable conclusion that Judge Hines’s findings of fact are supported by substantial,

credible and reasonable evidence; therefore, we will not disturb these findings on appeal,

since they are not manifestly wrong or clearly erroneous. This issue is thus without merit.

       II.    WHETHER THE MISSISSIPPI UNIFORM COMMERCIAL
              CODE IS APPLICABLE.

¶22.   Triconex argues that the control system had not been “delivered” at the time of the

turbine damage because the system was still being tested; accordingly, the trial court’s

finding that the system was defective is clearly erroneous. Triconex further asserts that the

Uniform Commercial Code (UCC) provides that there can be no breach of contract where

the goods in question have not been tendered, and Triconex argues that the system had not

been “tendered” at the time of the testing. See Miss. Code Ann. § 75-2-503 (Rev. 2002).

¶23.   Triconex further argues that Greenwood has failed to prove that its damages, which

are all consequential damages, were foreseeable and were proximately caused by Triconex,

because it was not foreseeable that Greenwood would offer an employee who was

incompetent to assist in the testing and who would make a mistake.


                                             15
¶24.   Greenwood argues that the UCC is not applicable since the trial court based its ruling

on Mississippi general contract law. Greenwood further argues that the contract is not for

the sale of goods; it is a competitively-bid construction contract for the specially-designed

system. Greenwood also argues that this Court’s mixed-transactions test in J.O. Hooker &

Sons, Inc. v. Roberts Cabinet Co., Inc., 683 So. 2d 396, 400 (Miss. 1996) applies. In J.O.

Hooker this Court stated:

       [W]hether or not the contract should be interpreted under the UCC or general
       contract law should depend upon the nature of the contract and also upon
       whether the dispute in question primarily concerns the goods furnished or the
       services rendered under the contract.

Id. (emphasis in original); see also Anderson Const. Co., Inc. v. Lyon Metal Products, Inc.,

370 So. 2d 935, 938 (Miss. 1979).

¶25.   Greenwood asserts that only forty percent of the contract deals with hardware, while

sixty percent deals with services.5 Greenwood further asserts that the dispute is over the

design of the software and the testing that occurred.

¶26.   In accordance with J.O. Hooker, we find that the UCC does not apply. Using this

Court’s mixed-transactions test, the dispute in the case sub judice clearly concerns testing of

the system, which is a service. Additionally, this Court finds that the contract as a whole, as


       5
        Greenwood’s brief states: “Only 40% of the contract price related to Triconex
hardware, with the remaining 60% covering the following ‘service’ categories: site
investigations; initial design; mechanical cabinet assembly; electrical cabinet assembly;
specifications; software development; factory acceptance test; field design package; a second
factory acceptance test; site acceptance test; start up and commissioning; and project
documentation.”


                                              16
evidenced by Greenwood’s demonstration that sixty percent of the contract related to

services, was for the specialized design of the turbine by Triconex. Therefore, we find that

this issue is without merit.

       III.   WHETHER OBTAINING ASSISTANCE FROM GREENWOOD
              DURING ON-SITE TESTING OF THE CONTROL SYSTEM
              WAS A BREACH OF CONTRACT BY TRICONEX.

¶27.   Triconex argues that the contract in question provided that “[a]t times the Owner may

provide personnel to assist the Contractor’s field service personnel during on-site testing.”

Triconex further argues that Greenwood did not object to providing Shaw, and that this type

of assistance from Shaw is customary in the industry.

¶28.   Greenwood argues that the trial judge held that Triconex breached the contract not by

requesting assistance from Shaw, but by installing a defective control system. Greenwood

further argues that the contract clearly stated that Triconex had sole responsibility for the

testing. Contract 103, Article 6, stated:

       B.     LABOR, MATERIALS AND EQUIPMENT:
              2.  Unless otherwise specified in the General Requirements,
                  Contractor shall furnish and assume full responsibility
                  for all materials, equipment, labor, transportation,
                  construction equipment and machinery, tools, appliances,
                  fuel, telephone, temporary facilities and all other
                  facilities and incidentals necessary for the furnishing,
                  performance, testing, start-up and completion of the
                  Work.

(Emphasis added). Additionally, the contract states:

       B.     On-Site Testing:
              ....


                                             17
              3.      Provide all labor and technical direction to test and start-up all
                      combustion turbine-generator systems.
              ....
              7.      Service personnel shall report with any test equipment or tools
                      required to place the control equipment and systems into
                      operation.

Greenwood also argues that for Triconex to rely upon the provision providing that the

“Owner may provide personnel to assist” (emphasis added), Triconex must have asked

Marion Flanagan, the project manager, for permission, because he was the only person who

had authority as the owner.

¶29.   In the end, it is irrelevant whether Triconex asked Greenwood for assistance.

According to the plain language of the contract, Triconex had the burden of providing all

labor, tools, and technical assistance for the testing. In other words, Triconex had sole

responsibility for the testing. Thus, we find that this issue is without merit.

       IV.    WHETHER GREENWOOD’S PROVIDING PERSONNEL AND
              INSTRUMENTATION FOR ON-SITE TESTING WAIVED THE
              CONTRACTUAL REQUIREMENT FOR TRICONEX TO
              PROVIDE ALL PERSONNEL AND INSTRUMENTATION.

¶30.   Triconex argues that the contract allowed for assistance by Greenwood personnel.

Further, Triconex argues that Greenwood never objected to Shaw’s assistance and, therefore,

waived the contractual requirement for Triconex to provide all personnel and

instrumentation. This Court has stated that the actions and pattern of conduct of the parties

determine if a waiver or modification occurred. Sanderson Farms v. Gatlin, 848 So. 2d 828,

837 (Miss. 2003). To determine the point at which any waiver occurs, the Court should look

to the actions of the relevant party after that party has sufficient information to be on notice

                                              18
of the alleged deviation from the contractual duty. Brent Towing Co., Inc. v. Scott

Petroleum Corp., 735 So. 2d 355, 358 (Miss. 1999). If, after acquiring knowledge of the

deviation from a known right articulated in the contract, a party fails to insist on its

contractual rights, or acts inconsistently with such rights, then that party waives the right to

require such performance. Id.; Sanderson Farms, 848 So. 2d at 837-38.

¶31.   Triconex argues that Greenwood had notice of deviation from the contract on the date

of testing and, by failing to object to providing Shaw for testing, waived Triconex’s

obligation to provide all personnel for testing. However, Greenwood argues that the trial

judge did not base his decision on the personnel issue, but instead upon Triconex’s design

and installation of a defective control system. Furthermore, Greenwood argues that no

“known deviation” occurred because the contract specifically states when a waiver or

amendment may occur. Greenwood also argues that, according to the language of the

contract, only the engineer6 for Greenwood had the authority to modify the contract.

Greenwood directs this Court to three sections of the contract:

       ARTICLE 3 – CONTRACT DOCUMENTS: INTENT, AMENDING, REUSE
       B.   AMENDING AND SUPPLEMENTING CONTRACT DOCUMENTS:
            1.     The Contract Documents may be amended to provide for
                   additions, deletions and revisions in the Work or to modify the
                   terms and conditions thereof in one or more of the following
                   ways:
                   a.     A formal Written Amendment.
                   b.     A Change Order (pursuant to Paragraph 10.A.4,)
       ....


       6
       Greenwood’s engineering firm was Burns and McDonnell of Kansas City, Missouri,
which also wrote the contract.

                                              19
              3.     In addition, the requirements of the Contract Documents may be
                     supplemented, and minor variations and deviations in the Work
                     may be authorized, in the following way:
                     a.     A Field Order (pursuant to Paragraph 9.E).
                     b.     Engineer’s written interpretation or clarification
                            (pursuant to Paragraph 9.D).
       ....

       ARTICLE 9–ENGINEER’S STATUS DURING CONSTRUCTION:
       E.   AUTHORIZED VARIATIONS IN WORK: Engineer may authorize
            minor variations in the Work from the requirements of the Contract
            Documents which do not involve an adjustment in the Contract Price
            or the Contract Time and are consistent with the overall intent of the
            Contract Documents. These may be accomplished by a Field Order and
            will be binding on Owner, and also on Contractor who shall perform
            the Work involved promptly.
       ....

       I.     PROJECT REPRESENTATION:
              1.   Owner may furnish Resident Project Representative and
                   assistants to assist Engineer in observing the performance of the
                   Work.
       ....
              d.     Resident Project Representative will not have authority to
                     permit any deviation from the Contract Documents, except with
                     the concurrence of Engineer.

Greenwood further argues that the contract specifically addressed the contractor’s

responsibilities:

       ARTICLE 6–CONTRACTOR’S RESPONSIBILITIES
       2.   Unless otherwise specified in the General Requirements, Contractor
            shall furnish and assume full responsibility for all materials, equipment,
            labor. . . necessary for the furnishing, performance, testing, start-up and
            completion of the Work.

¶32.   We agree with Greenwood that Triconex’s responsibilities according to the contract

were not waived. The contract stated that Greenwood employees could assist, and Shaw did


                                             20
so. The contract also stated that Triconex had sole responsibility for testing. Thus, no

provision of the contract was waived, and this issue is without merit.

       V.     WHETHER GREENWOOD                     CAN     RECOVER         ON     ITS
              NEGLIGENCE THEORY.

¶33.   The trial judge did not rule on this issue because his holding was based upon breach

of contract. Based on the ultimate disposition of this case, we need not address it.7

       VI.    WHETHER ATTORNEYS’ FEES ARE ALLOWED BY THE
              CONTRACT.

¶34.   Where a contractual provision concerning the award of attorneys’ fees is at issue, this

Court will apply its rule concerning the interpretation of any contract, which is to “enforce

a contract when its terms are clear and unambiguous.” Hamilton v. Hopkins, 834 So. 2d

695, 700 (Miss. 2003) (citing Ivison v. Ivison, 762 So. 2d 329, 334 (Miss. 2000)); Gulfside

Casino P’ship v. Miss. State Port Auth. at Gulfport, 757 So. 2d 250, 256 (Miss. 2000);

Delta Pride Catfish, Inc. v. Home Ins. Co., 697 So. 2d 400, 403 (Miss. 1997); Century 21

Deep S. Props., Ltd. v. Keys, 652 So. 2d 707, 717 (Miss. 1995)).

¶35.   Triconex directs our attention to the provision of Contract 103, Article 13 G.,

regarding the award of attorneys’ fees, which stated:

       G.     CORRECTION OR REMOVAL OF DEFECTIVE WORK: If required
              by Engineer, Contractor shall promptly, as directed, either correct all


       7
       In his findings of fact and conclusions of law, the trial judge stated, inter alia, that
“[u]nder its contract Triconex was obligated to deliver a working system. The system that
was installed was defective. Accordingly, the Court finds that Triconex is liable to
Greenwood Utilities for Breach of Contract.” Also, it is to be remembered that Greenwood
had contracted with Upchurch, which in turn subcontracted with Triconex.

                                              21
              defective Work, whether or not fabricated, installed or completed, or,
              if the Work has been rejected by Engineer, remove it from the site and
              replace it with nondefective Work. Contractor shall bear all direct,
              indirect and consequential costs of such correction or removal
              (including but not limited to fees and charges of engineers, architects,
              attorneys and other professionals) made necessary thereby.

Triconex further argues that the contract allowed attorneys’ fees only for the removal or

correction of defective “Work,” which was defined by the contract as:

       1.     Work shall include furnishing all Equipment and Materials, design,
              supervision, labor, tools, and field services required for the following:
              a.    A control system upgrade for the General Electric Frame
                    5 CT as specified herein and as indicated on the
                    drawings. Work to include installation of all Equipment
                    and Materials.
              b.    A control system for the HRSG and associated
                    equipment. The HRSG control system cabinet will be
                    installed and wired by Contract 106.

Triconex argues in its brief that no attorneys’ fees were incurred by Greenwood, as Triconex

voluntarily fixed the speed problem:

       The only action necessary to correct the alleged defective “Work” in the
       instant case, was sending a field services representatives (sic) to Greenwood
       to verify the value for the scaling factor required to calculate turbine speed
       from a sensor placed on the auxiliary pump, having that field services
       representative correct the value in the program, and download the changes to
       the Triconex computer at Greenwood to implement the change. Those precise
       actions were in fact taken in Greenwood on February 14, 1996, by John
       Driskill, a field services representative for Triconex. (Ex. Vol. 5, Ex. 81). No
       attorney’s fees were incurred to encourage or compel the subcontractor,
       Triconex, to correct the alleged defective work; and therefore, no award of
       attorney’s fees is authorized under Contract 103 on the events that occurred in
       the instant case.

From the record before us, we find that the trial judge properly awarded attorneys’ fees to

Greenwood in accordance with the contract. Notwithstanding Triconex’s assertions, the

                                             22
“Work” included the installation of the system, whether or not completed. According to the

contract, Triconex was responsible for replacing any defective “Work” with nondefective

“Work.” Greenwood had to file suit because Triconex refused to pay for the damage to the

turbine. Thus, finding no abuse of discretion, and for the reasons stated, we find this issue

to be without merit.

       VII.    WHETHER THERE WAS SUFFICIENT PROOF AS TO THE
               REASONABLENESS OF ATTORNEYS’ FEES

¶36.   On July 14, 2005, Judge Hines entered an Order on the issue of attorneys’ fees, which

stated in its entirety:

       THIS CAUSE came before the Court on the issue of attorney fees. The Court
       has reviewed the attorney fees sought and finds that they meet the
       reasonableness requirement of the rules. The Court further finds that due to
       the complexity of the subject matter and the lengthy duration of the litigation
       that the employment of two (2) attorneys was justified. Accordingly the Court
       finds that the amount of attorney fees to be awarded in this cause shall be
       $240,980.40.

Triconex argues that Judge Hines failed to make substantive findings of fact in accordance

with the McKee factors established by this Court in McKee v. McKee, 418 So. 2d 764 (Miss

1982). Instead, Triconex argues, Judge Hines simply gave an impermissible “blanket

endorsement” of Greenwood’s attorneys’ claimed fees and expenses, which this Court

forbade in BellSouth v. Board of Supervisors, 912 So. 2d 436, 447 (Miss. 2005). The

McKee factors are adopted from Rule 1.5(a) of the Mississippi Rules of Professional

Conduct, which states:

       A lawyer's fee shall be reasonable. The factors to be considered in determining
       the reasonableness of a fee include the following: (1) the time and labor

                                             23
       required, the novelty and difficulty of the questions involved, and the skill
       requisite to perform the legal services properly; (2) the likelihood, if apparent
       to the client, that the acceptance of the particular employment will preclude
       other employment by the lawyer; (3) the fee customarily charged in the
       location for similar legal services; (4) the amount involved and the results
       obtained; (5) the time limitations imposed by the client or by the
       circumstances; (6) the nature and length of the professional relationship with
       the client; (7) the experience, reputation, and ability of the lawyer or lawyers
       performing the services; and (8) whether the fee is fixed or contingent.

Miss. R. Prof’l Conduct 1.5(a).

¶37.   Triconex further argues that the Court of Appeals has held that an amount to

compensate for one competent attorney is the criteria upon which an award should be made.

Evans v. Evans, 912 So. 2d 184 (Miss. Ct. App. 2005).

¶38.   Greenwood argues that it submitted itemized attorney records for time and expenses

for the trial court to consider. Furthermore, Greenwood cites Miss. Code Ann. § 9-1-41 and

argues that the trial judge makes the determination of reasonableness from experience and

observation. Miss. Code Ann. § 9-1-41 (Rev. 2002) states:

       In any action in which a court is authorized to award reasonable attorneys’
       fees, the court shall not require the party seeking such fees to put on proof as
       to the reasonableness of the amount sought, but shall make the award based on
       the information already before it and the court’s own opinion based on
       experience and observation; provided however, a party may, in its discretion,
       place before the court other evidence as to the reasonableness of the amount
       of the award, and the court may consider such evidence in making the award.

Id. Greenwood further argues that McKee predates the passage of Miss. Code Ann. § 9-1-41,

and thus McKee is no longer applicable.8 Greenwood also argues that the McKee factors,


       8
        Miss. Code Ann. § 9-1-41 was approved by the Legislature on March 13, 1990,
while this Court decided McKee on July 28, 1982.

                                              24
since they are adopted from Miss. R. Prof’l Conduct 1.5(a), should be applicable only to

determine reasonableness in a dispute between an attorney and a client. However, we note

that in BellSouth (a “business dispute”), even though this Court reversed the trial court’s

findings on attorneys fees, we discussed and applied McKee and the Miss. R. Prof’l Conduct

1.5(a) factors. See BellSouth, 912 So. 2d at 445-48.

¶39.   This Court stated in Mabus v. Mabus, 910 So. 2d 486, 489 (Miss. 2005) that, where

a trial judge relies “on substantial credible evidence in the record regarding attorney’s fees,”

the trial judge has not abused his discretion. It is clear from the language of the trial judge’s

order that the judge did in fact apply the McKee factors even though he did not detail his

reasoning. Thus, we find that Judge Hines did not abuse his discretion, and we deem it

unnecessary to enter into a discussion of whether Section 9-1-41 supercedes McKee.

¶40.   Further, this Court finds Evans wholly irrelevant even though, as this Court stated in

Mabus, “the general rule is that appropriate attorney fees should be awarded in the amount

to secure one competent attorney.” Mabus, 910 So. 2d at 490. Evans and Mabus are clearly

distinguishable from this case as those cases concerned divorce, where the trial judge may

take into account the parties’ ability to pay. This case involves a business dispute, where

ability to pay is not a consideration. The trial judge did not abuse his discretion in awarding

fees and expenses for two attorneys in this case, which contains complex legal issues and has

been ongoing for more than a decade. Accordingly, we find that this issue is without merit.




                                               25
        VIII. W H E T H E R GREENWOOD    MET   THE LEGAL
              PREREQUISITES TO BE ENTITLED TO AN AWARD OF
              PREJUDGMENT INTEREST.

¶41.    This Court recently discussed the issue of prejudgment interest in Microtek Med., Inc.

v. 3M Co., 942 So. 2d 122, 132 (Miss. 2006), in which we stated that “[t]he trial judge no

doubt has discretion to award prejudgment interest if (1) the amount of damages is fixed and

(2) liability is undisputed.” “Prejudgment interest has been denied where there is a bona fide

dispute as to the amount of damages as well as the responsibility for the liability therefor.”

Id. (quoting Grace v. Lititz Mut. Ins. Co., 257 So. 2d 217, 225 (Miss. 1972)). “For

prejudgment interest to be awarded, the party must make a proper demand for the interest in

the pleadings, including the date that it was allegedly due.” Id.; see also Simpson v. State

Farm Fire & Cas. Co., 564 So. 2d 1374, 1380 (Miss. 1990).

¶42.    Upon reflection, it is readily apparent to us that in today’s case, we must clarify our

holding in Microtek, which relied on this Court’s decision in Grace. A study of Grace

reveals that the primary issue was whether an insurer was responsible to its insureds under

the applicable insurance policy, which provided coverage for an office building damaged in

the wake of Hurricane Camille.9 In addressing the prejudgment interest issue in Grace, this

Court succinctly disposed of this issue by stating, inter alia, that the plaintiffs/appellants

were not entitled to interest “because in this instance there is a bona fide dispute as to the




        9
            Hurricane Camille struck the Mississippi Gulf Coast on Sunday night, August 17,
1969.

                                              26
amount of damages as well as the responsibility for the liability therefor.” Grace, 257 So. 2d

at 225.10

¶43.   We seized upon this language from Grace in Simpson v. State Farm Fire & Cas. Co.,

564 So. 2d 1374, 1380 (Miss. 1990), and again in Thompson Machinery Commerce v.

Wallace, 687 So. 2d 149, 152 (Miss. 1997). The appropriate criteria for determining when

an award of prejudgment interest is proper is found in our recent opinion in Stockstill v.

Gammill, 943 So. 2d 35, 50 (Miss. 2006), where we stated:

       It is well settled that in Mississippi a [trial judge] is afforded discretion in
       deciding whether to award prejudgment interest. “An award of prejudgment
       interest rests in the discretion of the awarding judge. Under Mississippi law,
       prejudgment interest may be allowed in cases where the amount due is
       liquidated when the claim is originally made or where the denial of a claim is
       frivolous or in bad faith. No award of prejudgment interest may rationally be
       made where the principal amount has not been fixed prior to judgment.” Coho
       Res. v. McCarthy, 829 So. 2d 1, 19-20 (Miss. 2002) (quoting Warwick v.
       Matheney, 603 So. 2d 330, 342 (Miss. 1992)). See also Tupelo Redev.
       Agency v. Abernathy, 913 So. 2d 278, 286 (Miss. 2005).

Id. at 50. Thus, in sum, we today clarify this issue as discussed in Grace and its progeny,

including Microtek, by stating that when considering the issue of prejudgment interest, the

trial court, and the appellate court upon review, should remember that prejudgment interest

may be allowed in those cases where the amount due is liquidated when the claim is

originally made or where the denial of a claim is frivolous or in bad faith.




       10
         Perhaps a better way to state this principle is that prejudgment interest may not be
awarded unless the amount due is liquidated when the claim is originally made or where the
denial of a claim was frivolous or in bad faith.

                                             27
¶44.   The motion for rehearing likewise asserts error by this Court in awarding prejudgment

interest because the complaint does not contain a specified date on which prejudgment

interest allegedly became due. To address this issue we feel compelled briefly to review this

Court’s judicial enactment of the Mississippi Rules of Civil Procedure, which became

applicable to all civil actions filed on or after January 1, 1982. As of the effective date of our

civil procedure rules, Mississippi became a “notice pleadings” state. See Miss. R. Civ. P. 8

and Comment thereunder. No doubt, prior to the Mississippi Rules of Civil Procedure,

technical pleading requirements existed. This Court’s cases prior to the enactment of our

civil procedure rules required a plaintiff to specifically demand prejudgment interest in the

complaint and to also specify the date from which the prejudgment interest was due. See,

e.g., Md. Cas. Co. v. Legg, 247 So. 2d 812, 814 (Miss. 1971).

¶45.   Miss. R. Civ. P. 8(a) provides:

       (a) Claims for Relief. A pleading which sets forth a claim for relief, whether
       an original claim, counter-claim, cross-claim, or third-party claim, shall
       contain
       (1) a short and plain statement of the claim showing that the pleader is entitled
       to relief, and,
       (2) a demand for judgment for the relief to which he deems himself entitled.
       Relief in the alternative or of several different types may be demanded.

See also Miss. R. Civ. P. 8(e). In applying this rule, we stated in Church v. Massey, 697 So.

2d 407, 412 (Miss. 1997) that “the comment to that rule states that ‘[t]he purpose of Rule 8

is to give notice, not to state facts and narrow the issues as was the purpose of pleadings in

prior Mississippi practice.’” Id. However, as recently as our decision in Preferred Risk Mut.

Ins. Co. v. Johnson, 730 So. 2d 574, 578 (Miss. 1998), this Court stated:

                                               28
       A party must make a proper demand for the interest in the pleadings, including
       the date that it was allegedly due. [Wirtz v. Switzer], 586 So. 2d [775] at 785
       [(Miss. 1991)]; Thompson Mach. Commerce Corp. v. Wallace, 687 So. 2d
       149, 152 (Miss. 1997); Simpson, 564 So. 2d at 1380.

Id. at 578. (Emphasis added). Accordingly, insofar as Preferred Risk can be interpreted to

stand for the proposition that a pleader’s failure to allege in the complaint the specific date

on which prejudgment interest is due is fatal to a claim for prejudgment interest, Preferred

Risk (and any other case so holding) is overruled to this limited extent. We wish to make

clear today that while Miss. R. Civ. P. 8 does require that a party assert a demand for

prejudgment interest in the appropriate pleading; on the other hand, Rule 8 does not require

that a party seeking prejudgment interest must plead the specific date on which the

prejudgment interest allegedly is due.

¶46.   With all this having been said, we now return to today’s case. First, Triconex argues

that Greenwood’s damages claim was not for a liquidated amount, because the trial court

found that Greenwood failed to mitigate its damages; that GE was not entitled to some of the

charges for additional repair work; and that Greenwood could not recover for the costs to

purchase additional capacity or lost revenue due to reduced capacity. However, Greenwood

argues that the amount obviously became liquidated when the money was paid by

Greenwood, and the trial court used those dates in its calculations. Greenwood further argues

that this Court requires only that amounts must be liquidated “prior to judgment.” Preferred

Risk Mut. Ins. Co. v. Johnson, 730 So. 2d 574, 577 (Miss. 1998).




                                              29
¶47.   The amounts were liquidated when paid and certainly prior to judgment, as

Greenwood received bills for the amounts required to repair the damage to the turbine.

Accordingly, there can be no bona fide dispute as to the amount of damages, as these bills

came due prior to the judgment entered by Judge Hines. Thus, the damages were fixed when

Greenwood received the bills.

¶48.   Next, Triconex argues that Greenwood simply demanded prejudgment interest in its

complaint without stating an amount or the date from which it was allegedly due. As we

have clarified the law on this issue supra, Greenwood was required only to make a demand

for prejudgment interest, and Greenwood’s failure to state a specific date in its complaint

does not relieve Triconex from being responsible for prejudgment interest.

¶49.   Triconex directs this Court to its decision in Theobald v. Nosser, 784 So. 2d 142, 145

(Miss. 2001), and argues that Theobald stands for the proposition that a plaintiff must state

a specific date from which prejudgment interest is allegedly due in the pleadings. However,

this Court stated in Theobald:

       The Nossers assert that the Theobalds did not request prejudgment interest
       until the hearing before the chancery court after this Court had issued its
       opinion. That assertion is supported by the chancery court, which found that
       the Theobalds did not make a proper demand for prejudgment interest, and by
       the Theobalds' own complaint, which specifically asked for "legal interest
       after date of judgment." In light of all these factors, we conclude that the
       chancery court did not abuse its discretion in denying the Theobalds
       prejudgment interest.

Id. (emphasis in original). Thus, this Court specifically emphasized that the Theobalds

demanded interest after the date of judgment, which is distinguishable from this case.


                                             30
Greenwood clearly asked for prejudgment interest in its complaint. Greenwood’s failure to

state a specific date in its complaint does not relieve Triconex from being responsible for

prejudgment interest.

¶50.   Finally, Triconex argues that prejudgment interest is not authorized by statute.

Triconex argues that Miss. Code Ann. § 75-17-1(1) (Rev. 2000) allows trial judges to award

prejudgment interest only where expressly provided in the contract. Miss. Code Ann. § 75-

17-1(1) states:

       The legal rate of interest on all notes, accounts and contracts shall be eight
       percent (8%) per annum, calculated according to the actuarial method, but
       contracts may be made, in writing, for payment of a finance charge as
       otherwise provided by this section or as otherwise authorized by law.

Id. However, Greenwood argues that Miss. Code Ann. § 75-17-7 (Rev. 2000) is the

applicable statute and allows trial judges the discretion to award prejudgment interest. Miss.

Code Ann. § 75-17-7 states:

       All judgments or decrees founded on any sale or contract shall bear interest at
       the same rate as the contract evidencing the debt on which the judgment or
       decree was rendered. All other judgments or decrees shall bear interest at a per
       annum rate set by the judge hearing the complaint from a date determined by
       such judge to be fair but in no event prior to the filing of the complaint.

Id. We find that Miss. Code Ann. § 75-17-7 is the applicable statute. The trial judge relied

on Miss. Code Ann. § 75-17-7 in his Finding of Facts and Conclusions of Law. Thus, the

trial judge acted well within his authority by awarding prejudgment interest. For these

reasons, and finding no abuse of discretion on the part of the trial judge, we find this issue

to be without merit.


                                             31
                                     CONCLUSION

¶51.   For the reasons discussed, we affirm the Leflore County Circuit Court’s final

judgment entered in favor of Greenwood Utilities Commission and against Upchurch

Plumbing, Inc., and Triconex Systems, Inc., in the total amount of $2,622,451.96, plus post-

judgment interest.

¶52.   AFFIRMED.

    SMITH, C.J., WALLER AND DIAZ, P.JJ., EASLEY, DICKINSON AND
RANDOLPH, JJ., CONCUR. GRAVES, J., CONCURS IN PART AND DISSENTS IN
PART WITHOUT SEPARATE WRITTEN OPINION.            LAMAR, J., NOT
PARTICIPATING.




                                            32
