Before Sullivan, P.j., McRAE And Smith, JJ.
The opinion of the court was delivered by: McRAE, Justice
DATE OF JUDGMENT: 05/07/96
TRIAL JUDGE: HON. JOHN H. WHITFIELD
COURT FROM WHICH APPEALED: HANCOCK COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - CONTRACT
DISPOSITION AFFIRMED IN PART; REVERSED AND REMANDED IN PART
¶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.
¶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 ...