                          IN THE SUPREME COURT OF MISSISSIPPI
                                   NO. 96-CA-00592-SCT
MISSISSIPPI TRANSPORTATION COMMISSION
v.
SCI, INC.

DATE OF JUDGMENT:                               05/07/96
TRIAL JUDGE:                                    HON. JOHN H. WHITFIELD
COURT FROM WHICH APPEALED:                      HANCOCK COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                        WHITNEY B. BYARS
                                                PEYTON S. IRBY, JR.
ATTORNEY FOR APPELLEE:                          THOMAS W. PREWITT
NATURE OF THE CASE:                             CIVIL - CONTRACT
DISPOSITION:                                    AFFIRMED IN PART; REVERSED AND
                                                REMANDED IN PART - 07/23/98
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                 8/17/98




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


     McRAE, JUSTICE, FOR THE COURT:


¶1. The Mississippi Transportation Commission (Commission) appeals a judgment in favor of SCI,
Inc. (SCI) based on the Commission's breach of a highway construction contract. The Commission
alleges that the circuit court improperly granted summary judgment to SCI regarding damages, that
the Commission deserved a judgment notwithstanding the verdict, that the circuit court improperly
granted SCI an additur, and that the circuit court erred in refusing to allow the Commission to file a
third-party complaint. We affirm the decisions of the circuit court below, except with regard to the
award of summary judgment as to the damages recoverable by SCI. While the circuit court is fully
empowered to grant summary judgment after the refusal of an additur, we find that the circuit court
in this case erred in finding that no genuine issue of material fact existed in relation to SCI's damages.
The Commission did raise factual disputes that required a jury determination. We also note that the
statement that the Commission acted as "stewards for the taxpayers," which was made in front of the
jury by the attorney for the Commission was wholly inappropriate. Accordingly, we reverse and
remand for a new trial on damages only.

                                           BACKGROUND
¶2. In 1992, the Commission issued an advertisement to bidders, inviting contractors to submit bids
to construct improvements to Highway 603 in Hancock County. SCI, a contracting company that
builds bridges and highways, submitted a proposal of $7,882,180.35 for the Highway 603 Project.
SCI, which had previously bid successfully on contracts with the Commission, submitted the low bid
and was chosen to be the contractor for the project.

¶3. The bid package contained a form contract and a Utility Certification. The form contract signed
by SCI incorporated the Mississippi Standard Specifications for Road and Bridge Construction. Also
contained in the bid package was the Utility Certification, dated August 21, 1992. The Commission
alleges that of all the utility conflicts, only three set forth a specific relocation date, and the other
utility conflicts failed to provide a specific date for relocation or removal of the utility conflicts. SCI
argues that the Commission promised SCI that numerous utility poles, lines and pipelines that crossed
and paralleled the Highway 603 Project area would be removed by the end of January 1993.

¶4. On October 16, 1992, SCI and the Commission executed the contract for the Mississippi
Highway 603 Project in Hancock County. SCI was to build two new lanes on a seven-mile stretch of
Highway 603 from Kiln to Waveland. SCI was also supposed to lay a new asphalt topping on the two
existing lanes of Highway 603 in the same stretch. The completion date was specified as July 28,
1994.

¶5. At the time SCI executed the contract, some utility conflicts still had not been relocated by the
dates set forth in the Utility Certification. Though the parties agree on that fact, at trial, the parties
disputed whether or not SCI's work progress was or should have been delayed by these utility
conflicts. Nonetheless, on October 29, 1992, SCI requested that the Commission not count time
against it, since some utilities were still conflicting with its construction efforts.

¶6. On November 5, 1992, a preconstruction conference was held with representatives of the
Commission, SCI, and several of the utility companies present. The parties discussed project
formalities along with the status of the utility conflict relocation work. Apparently, it was mentioned
that several of the utility conflicts would not be relocated or removed in the near future. The day after
the conference, parties from the Commission and SCI discussed the possibility of terminating the
contract because of the utility conflicts. However, SCI indicated that it would attempt to continue.

¶7. Work on the Highway 603 Project continued, but according to SCI, operations were rendered
much less efficient and much more costly because it had to work around utility conflicts which had
not been resolved. The Commission argues that SCI essentially remained on schedule through 1993.
Nonetheless, in May 1993, Shackelford sought to terminate SCI's contract. However, the
Commission directed SCI to continue with its work. SCI tried again to terminate the contract, but the
Commission continued to charge time units against SCI. In November 1994, SCI and the
Commission executed a supplemental agreement which acknowledged that certain utility conflicts
had not been resolved until September and October 1993. Feeling aggrieved, SCI brought a breach of
contract suit against the Commission on December 9, 1994, in the Circuit Court of Hancock County.

¶8. Meanwhile, in March 1995, the parties executed another supplemental agreement, under which
SCI received $600,000, an advance to complete the Highway 603 Project. The Commission also
granted SCI time extensions because of the utility conflicts and an inability to secure a needed
material for road bed stabilization.
¶9. SCI filed a motion for partial summary judgment on July 5, 1995, alleging that there was no
genuine issue of material fact existing as to liability. The circuit court denied this motion. On July 12,
1995, the Commission filed a motion for leave to file third-party complaint, seeking to join as party
defendants the phone, electric, water, gas and cable utilities which allegedly caused the delay in the
Highway 603 Project. The circuit court also denied this motion, noting that the Commission had
"taken no steps to expeditiously resolve the action." Subsequently, the circuit court set the trial date
for October 2, 1995.

¶10. The jury received the case on October 6, 1995, and returned a verdict in favor of SCI. The jury
awarded SCI $2,370,888.85 in damages, with $153,386.85 designated for a claim made by the Bond
Paving Company. The jury did not grant an award for SCI's claim for damages allegedly incurred
because of the sale of the Menge Avenue dirt pit. The trial court entered final judgment on October
17, 1995.

¶11. SCI then filed a motion for new trial or additur. On October 24, 1995, the Commission filed a
motion for judgment notwithstanding the verdict. The circuit court denied the Commission's motion
but granted SCI an additur of $2,282,498.00, bringing the total judgment to $4,653,386.85. The
Commission eventually rejected the additur and a new trial for damages only was scheduled for May
6, 1996.

¶12. On January 29, 1996, the Commission renewed its motion for leave to file third party complaint.
However, the circuit court never ruled on the motion. On March 15, 1996, SCI filed a motion for
summary judgment on the issue of damages alone. After a hearing, the circuit court granted the
motion and entered judgment in favor of SCI in the amount of $4,653,386.85. Aggrieved, the
Commission filed a timely appeal to this Court.

                                              ANALYSIS

I. Whether the Circuit Court of Hancock County, Mississippi erred in granting summary
judgment to SCI, Inc., the Plaintiff-Appellee.

¶13. The Commission believes that the circuit court's grant of summary judgment on damages to SCI
"caused a grave miscarriage of justice" and frustrated the "well-established legal principles of additurs
and remittiturs of this State."

     "It is well-settled that a motion for summary judgment challenges the legal sufficiency of all or
     part of an opponent's case." "The motion lies only where there is no genuine issue as to any
     material fact. A fact is material if it tends to resolve any of the issues properly raised by the
     parties."

     This Court conducts a de novo review of the record on appeal from a grant of a motion of
     summary judgment. "When reviewing an award of summary judgment, this Court views all
     evidence in the light most favorable to the non-movant, including admissions in pleadings,
     answers to interrogatories, depositions, affidavits, etc. and will presume that all evidence in the
     non-movant's favor is true." If any triable issues of fact exist, the lower court's decision to grant
     summary judgment will be reversed. Otherwise, this Court affirms the decision.
Diogenes Editions, Inc. v. State ex rel. Bd. of Trustees of Inst. of Higher Learning, 700 So. 2d
316, 319 (Miss. 1997) (citations omitted).

¶14. Initially, the Commission argues that the circuit court below was without authority to enter
summary judgment after refusal of an additur and election of a new trial on damages. However, SCI
argues that the trial court is entitled to grant summary judgment, if appropriate, in cases that have
been remanded for a trial on damages only, relying on United States v. United States Gypsum Co.,
340 U.S. 76, 86 (1950). The procedural history in United States Gypsum was somewhat different
from the instant case, since there was no additur or remittitur involved. Rather, after reversing an
order of dismissal, the Supreme Court remanded the case to the district court for further proceedings.
Id. at 81. At that point, one party moved for summary judgment on the grounds that there was no
genuine issue of material fact. Id. Recognizing the trial court's ability to grant summary judgment on
remand, the Court noted that the trial court, in determining whether genuine issues of fact remained,
could rely on the findings of the Court in previous procedural appeals. Id. at 86. Then the Court went
on to evaluate the proof regarding summary judgment. Id. at 87.

¶15. While the Commission argues that the additur/remittitur statute does not allow a trial court to
enter summary judgment, it offers no precedent to support its position. The situation faced by the
circuit court here is analogous to United States Gypsum. The circuit court below had already
received damages evidence in the trial of the matter. Upon the summary judgment motion, SCI
offered proof based on the jury's determinations and the circuit court's amended order. To the
itemization of facts presented by SCI in support of its summary judgment motion, the Commission
responded with its own brief and admissions/denials of SCI's itemized facts. At that point, the circuit
court issued an order that read in part:

     Came on for hearing the Motion of SCI, INC., For Summary Judgment, and the Court, having
     considered and read the Motion and Briefs in support and opposition thereto, as well as all of
     the evidence submitted at the first trial that began October 2, 1995, and MDOT's Supplemental
     Responses to SCI's First Set of Interrogatories, and having heard and considered the arguments
     of counsel, finds and concludes that Plaintiff's Motion is well taken and should be granted.

¶16. A party seeking to recover upon a claim may, at any time after the expiration of thirty days
from the commencement of an action, move for a summary judgment in his favor. Miss. R. Civ. P.
56(a). See also Soley v. Star & Herald Co., 390 F.2d 364, 367 (5th Cir. 1968) (recognizing the
general rule which permits judicial notice of a court's prior cases to support a motion for summary
judgment, but reversing because in his order, the trial judge made no specific reference to the basis
for his grant of summary judgment).(1) Accordingly, we hold that it was proper for SCI to move for
summary judgment, and we also hold that the circuit court was within its power to grant summary
judgment in the trial on damages, if such judgment was proper.

¶17. The question becomes, then, whether summary judgment for SCI was actually appropriate in
this case. Clearly, the Commission had the alternative to elect a new trial on damages only, after
refusing the additur. Odom v. Roberts, 606 So. 2d 114, 121 (Miss. 1992). There was, on remand, no
question that the Commission breached the contract with SCI. Pursuant to United States Gypsum, it
was proper for the circuit court to rely on its determination that SCI's proof at trial was "inherently
probable, reasonable, credible, and trustworthy." However, since the circuit court determined that the
original jury award of $2,370,888.65 was influenced by bias, passion, and prejudice, that award
should have been treated as a nullity instead of a floor for awarding damages. As a result, the additur
ordered by the circuit court was, at best, a suggestion offered to the Commission, which was rejected
in lieu of a new trial on damages.

¶18. The Commission argues that numerous issues of material fact remain as to the extent of
damages due SCI and, accordingly, that summary judgment was inappropriate. Further, the
Commission argues, evidence showed that SCI could do productive work even with utilities present
on the project site, that there was a difference in the damages actually incurred by SCI, and that SCI
was not entitled to recover for "extra work" because it was not required to perform such work. The
Commission also disputed the method by which SCI calculated its damages.

¶19. To determine the propriety of summary judgment, this Court must conduct a de novo review of
the evidence regarding damages that was relied on by the circuit court below. Specifically, the
Commission cites testimony suggesting that SCI failed to mitigate its damages. The Commission
argues that evidence would show that SCI could have used more efficient equipment and could not
have performed certain activities that are reflected in SCI's calculation of damages. Testimony at trial
indicated that SCI was aware of work that it could have performed even with utilities on the project
site, including new lane construction, dirt and grading work, repaving and widening of the shoulders,
and wetlands mitigation planting.

¶20. SCI's summary judgment motion was simply that its damages, as determined by the Court
previously, were still undisputed. It did not establish conclusively that mitigation did not exist.
Nothing in the facts supporting summary judgment attempt to conclusively establish that mitigation
of damages was not a defense.

¶21. SCI admitted in the hearing on the motion for summary judgment that there was proof as to
SCI's failure to mitigate damages. However, SCI tried to dismiss this proof as useless because "there
was no quantum associated with it." Though the circuit court asserted that "MDOT presented no
evidence of the value of SCI's alleged failure to mitigate, did not promise any such evidence, and
therefore MDOT did not demonstrate that a genuine issue of material fact exists," this assertion is
contradicted by what the Commission provided in responses to interrogatories, which constitute valid
summary judgment evidence.

¶22. Jack McSwain, Rick Turner, David Foster, and Sam Peterson were all expected to offer
evidence relating to work that SCI could have performed on the Highway 603 project that could
have possibly mitigated damages that would be owed by the Commission. Similar testimony was
presented by these individuals at trial. Foster and Peterson testified that SCI was able to do
productive work on the Highway 603 Project. Turner testified that SCI could have done new lane
construction and grading work despite the utility conflicts. The jury was even instructed regarding
mitigation of damages. Although the jury verdict does not indicate explicitly that mitigation was a
factor in its decision, if such mitigation evidence was sufficient to warrant an instruction to the jury, a
factual question had to be present for resolution by the finder of fact. Moreover, the circuit court's
determination that the jury verdict was improper reinforces the concept that mitigation might have
been a factor that was improperly ignored by the jury. The circuit court recognized that money
damages was challenged heavily by the Commission at trial. Given the circuit court's reliance on the
facts revealed at trial, that court could not have concluded that SCI's damages were clear and
undisputed.

¶23. We now emphasize that although the circuit court is empowered to grant summary judgment in
a trial on damages only, it may only do so if there are no genuine issues of material fact as to
damages. Here, there was a conflict as to the amount of damages. In light of its finding that the jury
came back with an improper verdict, the circuit court should not have relied solely on that verdict to
conclude that SCI was automatically entitled to damages. Genuine issues of fact as to the amount of
damages recoverable by SCI existed in this case. Accordingly, we find that the circuit court below
erred in assessing damages through summary judgment.

II. Whether the Circuit Court of Hancock County, Mississippi erred in denying the
Mississippi Transportation Commission's Motion for a Judgment Notwithstanding the
Verdict.

¶24. The Commission also alleges that the circuit court erred in denying the Commission's motion for
judgment notwithstanding the verdict. The standard of review for a denial of a judgment
notwithstanding the verdict requires this Court to consider the evidence in the light most favorable to
the appellee, giving the appellee the benefit of all favorable inferences that may reasonably be drawn
from the evidence. Sperry-New Holland v. Prestage, 617 So. 2d 248, 252 (Miss. 1993). If the facts
are so overwhelmingly in favor of the appellant that reasonable and fair-minded jurors could not have
arrived at a contrary verdict, then this Court must reverse and render. Id. On the other hand, if there
is substantial evidence in support of the verdict, that is, evidence of such quality and weight that
reasonable and fair minded jurors in the exercise of impartial judgment might have reached different
conclusions, affirmance is required. Id. See also Fitzner Pontiac-Buick-Cadillac, Inc. v. Smith, 523
So. 2d 324, 326 (Miss. 1988).

¶25. The Commission argues that the trial court erred in allowing the jury to award monetary
damages, and in the alternative argues that the amount of the jury verdict was contrary to the
overwhelming weight of the evidence. The Commission relies on the Mississippi Standards
Specifications for Road and Bridge Construction ("Standards"). The Commission refers to Section
105.06, which is basically a "no damage for delay" provision,(2)to claim that SCI was not entitled to
recover monetary damages. The Commission also argues that SCI was not required to perform "extra
work" under Section 105.06, as a result of having to make adjustment to the utility facilities, and
therefore could not recover damages as calculated under Section 109.04 of the Standards.

¶26. Despite the apparent commonness of them, this Court has only once addressed and upheld the
validity of a "no damage for delay" provision in a construction contract. Edward E. Morgan Co. v.
State Highway Comm'n, 212 Miss. 504, 54 So. 2d 742 (1951). Contractual no-damage-for-delay
clauses are enforceable, though they are construed strictly against those who seek their benefit. J &
B Steel Contractors, Inc. v. C. Iber & Sons, Inc., 642 N.E.2d 1215, 1221 (Ill. 1994). However,
even with a "no damages for delay" clause, many jurisdictions have determined that damages may be
recovered for any delay that: (1) was not intended or contemplated by the parties to be within the
purview of the provision; (2) resulted from fraud, misrepresentation, or other bad faith on the part of
one seeking the benefit of the provision; (3) has extended such an unreasonable length of time that
the party delayed would have been justified in abandoning the contract; or (4) is not within the
specifically enumerated delays to which the clause applies. See, e.g., Green Int'l, Inc. v. Solis, 951
S.W. 2d 384, 387 (Tex. 1997); United States v. Metric Constructors, Inc., 480 S.E.2d 447, 448
(S.C. 1997); J & B Steel, 642 N.E.2d at 1221; see also Maurice T. Brunner, Annotation, Validity
and Construction of "No Damage" Clause with Respect to Delay in Building or Construction
Contract, 74 A.L.R.3d 187, § 2[a] (1976).

¶27. Though the Commission argues that the "no damages for delay" provision precluded a monetary
award for breach, the Commission submitted an instruction to the jury which tracked the previously
listed exceptions and reflected the instances in which the jury could return a damages award. The
jury's verdict and award of damages implicitly established that the "no damages for delay" provision
was not a bar to recovery of money damages by SCI for the Commission's breach. The Commission's
refusal to grant extensions on a timely basis can reasonably be interpreted as active interference or
bad faith and would justify a damages award. Therefore, the "no damages for delay" provision does
not preclude a damages award in this case.

¶28. The Commission also argues that the amount of the verdict was contrary to the overwhelming
weight of the evidence. However, the Commission only points to variances in testimony, specifically
in the amount of SCI's anticipated profits and the difference between SCI's costs and payments
received for worked performed. That SCI's testimony may have been contradicted by that of the
Commission is, in and of itself, of no consequence. There being substantial evidence to support the
jury's finding that a breach existed and that an award was warranted, the circuit court did not err in
refusing to grant a judgment notwithstanding the verdict.

III. Whether the Circuit Court of Hancock County, Mississippi erred in granting SCI, Inc.,
Motion for a New Trial or for an Additur.

¶29. The Commission alleges next that the circuit court erred in granting SCI's motion for additur.
Although the Commission exercised its option to reject the additur and receive a new trial on
damages, we will address the Commission's argument to the extent that it claims that the circuit court
should not have disturbed the jury award. We apply the following standard in making such a
determination.

     ". . .[T]he grant or denial of a motion for a new trial is a matter committed to the sound
     discretion of the trial court. We reverse only where there has been an abuse of that discretion."
     "In considering a motion for a new trial, the trial judge in exercising his sound discretion may
     grant the motion thereby overruling the jury's verdict only where such a verdict is against the
     overwhelming weight of the evidence or is contrary to the law."

Allstate Ins. Co. v. McGory, 697 So. 2d 1171, 1174 (Miss. 1997)(citations omitted). Similarly, this
Court consistently has held that the test for deciding whether or not to overturn a granting of additur
is whether or not the trial court manifestly abused its discretion. Copeland v. City of Jackson, 548
So. 2d 970, 974 (Miss. 1989).

¶30. In this case, the jury returned a verdict of $2,370,888.85 in favor of SCI. Subsequently, SCI
moved for a new trial or additur on the following grounds: (1) during closing arguments, an attorney
for the Commission made improper comments; (2) the amount of the judgment was inadequate and
was contrary to the overwhelming weight of credible evidence; and (3) the amount of the judgment
evidences that the jury was wrongfully influenced by bias, prejudice and/or passion. The circuit court
granted the additur, pursuant to the standards enunciated in Miss. Code Ann. § 11-1-55 (1991).

¶31. We note that SCI presented testimony from Mike Vickery regarding the rental value of
depreciated equipment, the value of stock items used by SCI, and lost profits due to the
Commission's breach. Further, as was noted by the circuit court below, Jackie Duckworth, the
auditor who testified for the Commission, did not include in his estimate of SCI's loss numerous items
of damages experienced by SCI. In its brief, the Commission argues that the damages incurred and
calculated by SCI were disputed. SCI argued in the hearing on the motion for additur that Vickery's
testimony clearly established the damages recoverable by SCI and that Exhibit 83, a summation of the
damages, was not contradicted. The circuit court below apparently relied heavily on the fact that
Duckworth did not take into account all elements of loss sustained by SCI and therefore concluded
that the overwhelming weight of the evidence supported a greater award.

¶32. The circuit court also determined that another basis for an additur was the improper comment
made by the Commission's attorney. In Dykes v. State Highway Comm'n of Mississippi, 535 So. 2d
1349, 1352-53 (Miss. 1988), this Court reiterated that statements during closing arguments by
counsel for the Commission that the department was working for the jurors as citizens and taxpayers
constituted reversible error. The following statements were made during closing argument by SCI's
attorney:

     Prewitt: Time doesn't pay in this game. Crime doesn't pay. Time doesn't pay in the construction
     business. This argument that they're going to grant us time sometime later on, it doesn't work.
     It's like Bosnia, slaughter the innocent, reward the victims. Let the Goliaths fight it out. We ask
     --

The Commission's attorney then interrupted:

     Lusk: If Your Honor please -- excuse me, Mr. Prewitt -- I let him get by with two that I wanted
     to complain about. One, he refers to MDOT as the people with the money. I think that is --

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

     Lusk: Sir?

     The Court: I haven't heard that.

     Lusk: Well, I did. Anyway -- all right, maybe they won't do it again. The second is calling us the
     Goliath. That should allow us to call ourselves the stewards for the taxpayers, which we can't
     do, and I wouldn't consider doing it."

The circuit court found that the Commission's attorney knowingly made an improper statement in the
jury's presence, and it accordingly determined that the verdict was so low as to have been returned by
a jury impermissibly influenced by bias, prejudice or passion.

¶33. We do not believe that the damage portion of the verdict was contrary to the overwhelming
weight of the evidence, since both the Commission and SCI elicited much testimony regarding the
damages incurred by SCI as a result of the Commission's breach. This testimony did conflict, and
resulted in different expectations for each party. Deferring to the discretion of the circuit court in this
matter and the evidence presented, we cannot say that the circuit court abused its discretion in
originally imposing an additur on behalf of SCI. Nonetheless, we hasten to note our agreement with
the circuit court that the statements made by the Commission's attorney could have improperly biased
or prejudiced the jury. At the same time, the comment by SCI's attorney referring to MDOT as
"Goliaths" in front of the jury probably invited the comment by the Commission's attorney. When
attorneys make comments like these, a disservice is done to all clients. Such commentary only
inflames the minds of jurors. The statements are not in keeping with the oath taken by attorneys, and
they only serve to delay justice. While we will not do so in this case, we reserve the prerogative to
impose sanctions, which may include substantial monetary fines, upon attorneys who make such
statements in the future.

IV. Whether the Circuit Court of Hancock County, Mississippi erred in denying the
Mississippi Transportation Commission's Motion for Leave to File Third-Party Complaint.

¶34. Finally, the Commission relies upon Rule 14 of the Mississippi Rules of Civil Procedure for its
position that the lower court committed reversible error by denying its motion for leave to file third-
party complaint against certain utility companies. Both parties direct the Court's attention to
Weyerhaueser Co. v. Wells, 593 So. 2d 1010, 1012-13 (Miss. 1992). Relying on the comments to
Miss. R. Civ. P. 14, the Court recognized that the trial court has discretion to disallow a claim even if
it meets the technical requirements of the rule. Id. The Court also noted, "It is apparent that the rule
does not grant a defendant the right to have a third party claim heard by the court in the same action.
The Mississippi trial courts have greater discretion on Rule 14 than the federal courts have." Id. at
1012.

¶35. The Commission argues that since SCI's claims are solely related to the location and non-
removal of the utility conflicts owned by parties other than the Commission, the third-party utility
companies would have been liable to the Commission for all or part of the judgment against it. The
Commission argues that allowing it to add the utility companies would have prevented needless
additional litigation, thus satisfying the rule's purpose of avoiding "circuitous or duplicative actions."

¶36. The circuit court found that, "The Mississippi Transportation Commission has taken no steps
whatsoever, to expeditiously resolve this action, although it noted in its argument that time was of
the essence in completing the project in question." As the commentary to Rule 14 states,

     . . .a valid third-party claim that will avoid circuitous or duplicative actions should ordinarily be
     permitted, unless it would unduly delay the original action. If the court determines that the
     third-party claim would unduly complicate the original action, it should not disallow impleader;
     instead, it should permit the claim and order a separate trial as authorized by the rule and by
     Rule 42(a).

Miss. R. Civ. P. 14 cmt.

¶37. Once again, we defer to the discretion of the circuit court below because it was in the best
position to determine whether the third party claim was appropriate. Given the court's determination
that the Commission had already delayed the action long enough and that further delay would be
prejudicial to SCI, we find that the court did not abuse its discretion by refusing to allow the
Commission to file a third-party complaint.

                                          CONCLUSION

¶38. Assignments of error II, III, and IV by the Commission are without merit. However, assignment
I, alleging that the circuit court erred in granting summary judgment as to the damages recoverable
by SCI, does have merit. Because genuine issues of material fact remained as to the amount of
damages recoverable by SCI, summary judgment was improper. Accordingly, we affirm as to issues
II, III, and IV, reverse as to issue I, and remand this matter for a new trial on damages only.

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

PRATHER, C.J., SULLIVAN, P.J., BANKS, SMITH, MILLS AND WALLER, JJ., CONCUR.
ROBERTS, J., CONCURS IN RESULT ONLY. PITTMAN, P.J., NOT PARTICIPATING.




1. However, we also note that the "commencement of trial closes the season for granting motions for
summary judgment," and before a motion for summary judgment can be heard, the moving party
must comply with Miss. R. Civ. P. 56(c). Hurst v. Southwest Mississippi Legal Serv. Corp., 610 So.
2d 374, 384 (Miss. 1992).

2. The clause states that:

     . . .no additional compensation will be allowed for delays, inconvenience, or damage sustained
     by [the contractor] due to interference from the said utility appurtenances or the operation of
     moving them. The engineer's determination that removing, relocating or adjusting of utility
     appurtenances or failure of others to do so is causing a delay in major facets of construction
     which normally should be in progress will be considered a delay by the state in the
     determination of the extension of contract time.. . .
