Gary Rolison v. Edith Carolyn Fryar

IN THE SUPREME COURT OF MISSISSIPPI

NO. 2015-CA-00519-SCT

GARY ROLISON, MARTHA ROLISON, GM
LANDS, LLC AND ROLISON TIE AND TIMBER
COMPANY, INC.

v.

EDITH CAROLYN FRYAR, CALEB FRYAR, PINE
GROVE TRUCKING, INC., ROBERT A. FRYAR
AND OPERATORS INVESTMENT GROUP, P.A.

DATE OF JUDGMENT: 02/17/2015
TRIAL JUDGE: HON. ANDREW K. HOWORTH
TRIAL COURT ATTORNEYS: JOHN WEDDLE
ALAN LANCASTER
REID STANFORD
KIRK THARP
SHANE McLAUGHLIN
BRADLEY TRUETT GOLMAN
STACEY WOODRUFF GOLMAN
COURT FROM WHICH APPEALED: TIPPAH COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS: BRADLEY TRUETT GOLMON
STACEY WOODRUFF GOLMON
ATTORNEYS FOR APPELLEES: MARVIN REID STANFORD
ALAN D. LANCASTER
NATURE OF THE CASE: CIVIL - CONTRACT
DISPOSITION: AFFIRMED - 12/01/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE DICKINSON, P.J., KITCHENS AND KING, JJ.

KITCHENS, JUSTICE, FOR THE COURT:

¶1. Following court-ordered mediation, spouses Gary Rolison and Martha Rolison and

Caleb Fryar and his father, Robert Allen Fryar, entered into a mediation settlement agreement
that resolved four lawsuits pending between the Rolisons and the Fryars.1 After a bench trial,

the Circuit Court of Tippah County found that the Rolisons had breached the settlement

agreement, and the court entered a final judgment pursuant to Mississippi Rule of Civil

Procedure 54(b) and postponed hearing the issue of damages. The Rolisons appealed from

the final judgment but later dismissed the appeal voluntarily. After the trial on damages, the

trial court awarded the Fryars $399,733.02 in damages, including lost profits and attorney

fees.

¶2. The Rolisons appeal, arguing that their jury trial waiver was ineffective, the trial

court’s Rule 54(b) certification was erroneous, and the trial court erroneously denied a

motion to intervene filed by two interested parties. Because the Rolisons dismissed their

appeal from the Rule 54(b) final judgment, these issues are not before the Court. We do hold

that the trial court committed no error by finding that the Rolisons had waived their right to

a jury trial on damages and attorney fees. Further, we reject the Rolisons’ challenges to the

trial court’s awards of damages and attorney fees because those awards were supported by

substantial, credible evidence. Therefore, we affirm the judgment of the trial court.

FACTS

¶3. In 2006, the Rolisons purchased ninety-seven acres of land, known as the sawmill

property, from the Fryars. After the purchase, disputes arose between the Rolisons and the

Fryars concerning ownership of certain equipment and materials located on the property.

1
This litigation involved appellants Gary Rolison, Martha Rolison, GM Lands, LLC,
and Rolison Tie and Timber, Co., Inc. (the Rolisons), and appellees Edith Carolyn Fryar,
Caleb Fryar, Pine Grove Trucking, Inc., Robert Allen Fryar, and Operators Investment
Group, P.A (the Fryars).

2
Litigation ensued in the Circuit Court of Tippah County, which consolidated four of the cases

for trial. On February 15, 2011, after all parties orally waived the right to a jury trial, the trial

court ordered them to participate in mediation in an effort to resolve the four cases. The trial

court further ordered that “all of the disputed property remain where is, as is” until the cases

were resolved. The mediation occurred on March 2, 2011, and resulted in a settlement

agreement signed by Gary Rolison, Martha Rolison, Robert Allen Fryar, and Caleb Fryar.

¶4. The mediation settlement agreement provided that if the Fryars tendered $400,000 to

the Rolisons, the Rolisons would convey the sawmill property to Caleb Fryar and execute

a bill of sale for “all equipment and materials located on said property as is where is as of the

date of this agreement on March 2, 2011.”2 Approximately one week later, the Rolisons

notified the Fryars of their belief that the parties had not reached a valid agreement because

there had been no meeting of the minds. On May 24, 2011, Caleb Fryar tendered a cashier’s

check in the amount of $400,000 to the Rolisons along with proposed settlement documents.

The Rolisons returned the check and documents to the Fryars’ attorney. Then, the Fryars filed

a motion to enforce the settlement agreement, claiming reasonable damages incurred due to

the delay, plus attorney fees.

¶5. A bench trial on the Fryars’ motion to enforce the settlement agreement occurred on

October 21, 2011. The trial court heard testimony from Gary Rolison, Martha Rolison, Gary

2
The mediation settlement agreement also provided that, in the event the Fryars did
not tender $400,000 to the Rolisons on or before May 31, 2011, the Fryars would have the
option to purchase a tract of land along the eastern boundary of the sawmill property for
$40,000. Because the Fryars tendered $400,000 to the Rolisons before May 31, 2011, this
option is not at issue in this case.

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Wayne Rolison, Jr., Caleb Fryar, and the mediator, Larry Latham. The Rolisons argued that

there had been either a mistake or no meeting of the minds on the specific equipment and

materials that they were to transfer to Caleb Fryar for $400,000. The Fryars countered that

there had been a meeting of the minds because the mediation settlement agreement stated that

the Rolisons agreed to transfer “all” equipment and materials located on the sawmill

property. The Rolisons also argued that some of the equipment and materials on the sawmill

property was owned by their son, Gary Wayne Rolison, Jr., and by their logging operation,

Rolison Logging/Timber Company Trust. Gary Wayne Rolison, Jr., and Rolison

Logging/Timber Company Trust moved to intervene to protect their interests, arguing that,

because they owned the property, it could not have been transferred to Caleb Fryar by the

mediation settlement agreement. They requested a declaratory judgment that certain property

rightfully belonged to Gary Wayne Rolison, Jr., or Rolison Logging/Timber Company Trust.

¶6. The trial court denied the motion to intervene, finding that the motion was untimely

because the litigation had been ongoing for three years with no attempt to intervene. Further,

the trial court found that “the relationship between the Rolison[]s and the trust is so

hopelessly intertwined that it does not function as a separate entity” and that the Rolisons had

either express or implied authority to speak for the trust at all relevant times. The trial court

also found that, based on the testimony of the witnesses and especially the mediator, the

mediation settlement agreement had been the product of a meeting of the minds, and its terms

were clear and unambiguous. The trial court also rejected the Rolisons’ claim of a unilateral

or mutual mistake. The issues of damages and attorney fees were postponed. Upon a finding

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of no just reason for delay, the trial court directed the entry of a final judgment on its grant

of the Fryars’ motion to enforce the settlement agreement. See M.R.C.P. 54(b). At the

conclusion of the bench trial, the trial court ordered a continuing injunction against the

removal of anything from the property by anyone.

¶7. After the Rolisons’ motion for a new trial was denied on May 3, 2012, they filed a

timely notice of appeal. On August 15, 2012, the parties entered into a second settlement

agreement providing for the transfer of the sawmill property, but preserving the Fryars’ claim

for damages. Pursuant to this agreement, the Rolisons agreed to dismiss their pending appeal.

On September 14, 2012, this Court granted the Rolisons’ motion to dismiss their appeal, and

the mandate issued on October 8, 2012.

¶8. The issues of damages and attorney fees were tried on January 12, 2015. The Fryars

presented evidence that damage had occurred to the sawmill property after the Rolisons had

breached the mediation settlement agreement. They showed that an office located on the

property had sustained water damage, a retaining wall had collapsed due to a water leak, the

Rolisons had removed lumber and scrap metal from the property in violation of the court’s

order, motors had been removed and wires cut on the sawmill, and the scales had been

damaged. The Fryars also showed that, because of a regulatory change during the breaching

period, they had to modify the scales in a manner that would not have been required due to

“grandfathering” if they had obtained the property when promised. The trial court found that

the relevant dates for the breaching period were July 1, 2011, which was the undisputed date

the Fryars would have begun sawmill operations, until September 14, 2012, the date the

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Fryars would have been able to begin operations after they finally took possession, if the

sawmill property had not been in a state of disrepair. The trial court awarded $231,960.32

for the costs to repair or replace missing or damaged items and $75,000 in lost profits. The

trial court found that, because the Rolisons intentionally had disregarded the unambiguous

terms of the mediation settlement agreement and had removed items from the sawmill

property in violation of court orders, their conduct was so outrageous that it supported the

Fryars’ claim for attorney fees in the amount of $92,772.70.

STANDARD OF REVIEW

¶9. “A circuit court judge sitting without a jury is accorded the same deference with

regard to his findings as a chancellor, and his findings will not be reversed on appeal where

they are supported by substantial, credible, and reasonable evidence.” Brewer Constr. Co.,

Inc. v. David Brewer, Inc., 940 So. 2d 921, 925 (Miss. 2006). This Court reviews questions

of law de novo. Upchurch Plumbing, Inc. v. Greenwood Utils. Comm’n, 964 So. 2d 1100,

1107 (Miss. 2007).

DISCUSSION3

I. WHETHER THE TRIAL COURT DENIED THE ROLISONS’
CONSTITUTIONAL RIGHT TO A JURY TRIAL UNDER ARTICLE 3,
SECTION 31, OF THE MISSISSIPPI CONSTITUTION.

¶10. The Rolisons argue that they failed to effect a waiver of their state constitutional right

to a jury trial. After the trial court consolidated the four cases, all parties orally waived their

rights to a jury trial and consented to a bench trial. Then the trial court ordered mediation,

3
For clarity, we have reordered the appellate issues.

6
which resulted in a settlement. After the Rolisons failed to perform their duties under the

mediation settlement agreement, the trial court held a bench trial on the Fryars’ motion to

enforce the settlement agreement. No party requested a jury trial and all participated in the

bench trial. At the conclusion, the trial court ruled from the bench that the Rolisons had

breached the mediation settlement agreement and denied the motion to intervene by Rolison

Logging/Timber Company Trust and Gary Wayne Rolison, Jr.

¶11. Approximately one month later, on November 18, 2011, the parties appeared in court

to try the issues of damages and attorney fees. The Rolisons, now with new counsel, argued

that they had not waived their right to a jury trial. The Rolisons contended that their oral jury

trial waiver was ineffective because they had not filed a written waiver under Mississippi

Rule of Civil Procedure 38(b). Alternatively, they argued that their oral waiver extended only

to the four consolidated cases, and that a new cause of action for breach of contract had

arisen upon their noncompliance with the mediation settlement agreement, for which they

had not waived a jury trial. They argued that the Fryars should file an amended complaint

adding a breach of contract action, and that the remaining issues of damages and attorney

fees for breach of contract should be tried before a jury.

¶12. The trial court postponed the trial and ordered the parties to brief the jury trial waiver

issue. On December 9, 2011, the trial court directed the entry of a final judgment under Rule

54(b) with respect to the matters that had been adjudicated. The Rolisons appealed from that

judgment but later dismissed their appeal pursuant to their August 2012 settlement agreement

with the Fryars. On July 15, 2013, the trial court entered an order finding that the Rolisons

7
had waived their right to a jury trial at the February 15, 2011, hearing “and by subsequent

conduct, regarding the issue of the enforceability of the settlement agreement” and “on the

present issue of any damages resulting from the breach of the settlement agreement.”

¶13. On appeal, the Rolisons argue that their oral waiver of a jury trial was ineffective due

to Rule 38(b)’s requirement of a written waiver of a jury trial. Rule 38 provides:

(a) Right Preserved. The right of trial by jury as declared by the Constitution
or any statute of the State of Mississippi shall be preserved to the parties
inviolate.

(b) Waiver of Jury Trial. Parties to an action may waive their rights to a jury
trial by filing with the court a specific, written stipulation that the right has
been waived and requesting that the action be tried by the court. The court
may, in its discretion, require that the action be tried by a jury notwithstanding
the stipulation of waiver.

M.R.C.P. 38(b). The Rolisons also argue that they never waived a jury trial on the Fryars’

new cause of action for breach of contract, and that their conduct of orally waiving a jury

trial and then fully trying the breach of contract issue cannot be construed as an effective

waiver.

¶14. The Rolisons’ argument that they were entitled to a jury trial on the issue of whether

they breached the mediation settlement agreement is not properly before the Court. This is

because, after the bench trial on that issue, the trial court entered a final judgment under

Mississippi Rule of Civil Procedure 54(b). Rule 54(b) provides that “the court may direct the

entry of a final judgment as to one or more but fewer than all of the claims or parties only

upon an expressed determination that there is no just reason for delay and upon an expressed

direction for the entry of the judgment.” M.R.C.P. 54(b). A party has thirty days after the date

8
a final judgment is entered to perfect an appeal. M.R.A.P. 4(a). If the Rolisons had wished

to appeal the denial of a jury trial on the issue of whether the mediation settlement agreement

was breached, they should have filed an appeal within thirty days after the entry of the Rule

54(b) final judgment. In fact, the Rolisons did perfect an appeal from the Rule 54(b) final

judgment but later dismissed that appeal. Therefore, the issue of whether they were entitled

to a jury trial on the matters resolved by the Rule 54(b) final judgment is not before this

Court.4

¶15. After the entry of the Rule 54(b) final judgment, the issues of damages and attorney

fees remained before the trial court. Because the issue of whether the Rolisons were entitled

to a jury trial solely on damages and attorney fees was not encompassed by the final

judgment, it is properly before this Court. However, the issue is without merit. The Rolisons

cite Burnette v. Hartford Underwriters Ins. Co., 770 So. 2d 948, 951-52 (Miss. 2000), for

the proposition that the right to a jury trial cannot be waived under Mississippi Rule of Civil

Procedure 38(b) through implied conduct. In Burnette, this Court found that the filing of an

action in chancery court, where a jury is not available, did not function as a waiver of the

right to a jury trial when the case was transferred to circuit court, where a jury is available.

Id. at 952. The Court held that, because the Burnettes had not filed “a specific written

4
The Fryars claim that the Rolisons’ argument is barred by Mississippi Code Section
11-3-15 (Rev. 2014), which provides that “[a]fter the dismissal of an appeal or supersedeas
by the Supreme Court, another appeal or supersedeas shall not be granted in the same cause,
so as to bring it again before the Court.” The Fryars claim that the Rolisons raised the jury
trial issue in their dismissed appeal and they cannot raise it again. We do not address this
statutory argument because the jury trial issue may be resolved fully under the Mississippi
Rules of Civil Procedure and the Mississippi Rules of Appellate Procedure.

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stipulation waiving their right to a jury, they have not waived that right. Id. Thus, Burnette

held that a party may waive the right to a jury trial under Rule 38(b) only by filing a written

waiver.

¶16. In this case, it is undisputed that the Rolisons never filed a written jury trial waiver.

Therefore, the trial court erred by finding that they had waived the right to a jury trial.

However, this Court will affirm if the trial court reached the correct result, but for the wrong

reason. Love v. Barnett, 611 So. 2d 205, 207 (Miss. 1992). Although the trial court

incorrectly determined that the Rolisons had waived their right to a jury trial, we find the

issue to be one of forfeiture. “[W]aiver is different from forfeiture. Whereas forfeiture is the

failure to make the timely assertion of a right, waiver is ‘the intentional relinquishment or

abandonment of a known right.’” U.S. v. Olano, 507 U.S. 725, 733, 113 S. Ct. 1770, 1777,

123 L. Ed. 2d 508 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019,

1023, 82 L. Ed. 1461 (1938)). When a party fails to demand a jury trial and proceeds to try

the case to the bench, the party, having failed to exercise the jury trial right in a timely

manner, forfeits the right to complain. That is what occurred in this case. The Rolisons tried

the breach of contract issue to the bench and failed to demand a jury trial until the damages

phase. Because the Rolisons forfeited the right to a jury trial by failing to exercise the right

in a timely manner, we affirm the trial court’s finding that the Rolisons were not entitled to

a jury trial on the issues of damages and attorney fees.

II. WHETHER THE TRIAL COURT ERRED BY DIRECTING THE ENTRY
OF THE RULE 54(B) FINAL JUDGMENT.

¶17. Under Rule 54(b), the trial court may “direct the entry of a final judgment as to one

10
or more but fewer than all of the parties only upon an expressed determination that there is

no just reason for delay and upon an expressed direction for the entry of the judgment.”

M.R.C.P. 54(b). This Court has held that a decision that leaves a portion of a claim pending

as to all defendants may not be certified as a final, appealable judgment under Rule 54(b).

Brown v. Collections, Inc., 188 So. 3d 1171, 1175 (Miss. 2016). The Rolisons argue that this

prohibition is implicated in this case because the Fryars brought a single claim, for breach

of the mediation settlement agreement, against all defendants. The Rolisons argue that the

trial court erred by directing the entry of the Rule 54(b) final judgment after ruling on the

breach of the mediation settlement agreement. They contend that, because the Fryars’

remaining requests for damages and attorney fees were simply damages for their breach of

contract claim, they were not separate “claims” for the purposes of Rule 54(b).The Rolisons

argue that, because the entry of a Rule 54(b) final judgment was erroneous, this Court can

now address all claims adjudicated by the Rule 54(b) final judgment.

¶18. This Court lacks jurisdiction to address any claims embraced by the Rule 54(b) final

judgment. This is because the Rolisons’ time for appealing that judgment has expired. A

notice of appeal must be filed within thirty days after the date of the entry of the judgment

from which appeal is taken. M.R.A.P. 4(a). The Rolisons appealed the Rule 54(b) final

judgment; but, when they voluntarily dismissed their appeal after the expiration of the thirty

day period, they lost the opportunity to challenge any issues embraced by the Rule 54(b) final

judgment.

¶19. The Rolisons argue that, because the trial court’s Rule 54(b) certification was

11
erroneous, the judgment was not final, but interlocutory, and ineffective to commence the

running of the thirty day time for appeal. This argument is without merit. “A judgment

merely voidable because based upon an erroneous view of the law is not open to collateral

attack, but can be corrected only by a direct review . . . .” Federated Dep’t Stores, Inc. v.

Moitie, 452 U.S. 394, 398, 101 S. Ct. 2424, 69 L. Ed. 2d 103 (1981) (citations omitted). This

precept applies to an erroneous Rule 54(b) certification. “A Rule 54(b) certification, right or

wrong, starts the time for appeal running.” In re Lindsey, 59 F.3d 942, 951 (9th Cir. 1995).

Thus, once a trial court has directed the entry of a final judgment under Rule 54(b), any party

seeking relief from that judgment, even on the ground that the judgment is, in fact,

interlocutory, must perfect an appeal within thirty days after the entry of judgment. Id. When

a party perfects an appeal from a Rule 54(b) final judgment, this Court’s routine

jurisdictional inquiry includes determining whether the judgment was, in fact, a proper

exercise of the trial court’s authority under Rule 54(b). See Brown, 188 So. 3d at 1173. If the

judgment was interlocutory because the requirements of Rule 54(b) were not met, this Court

has not hesitated to reverse for lack of jurisdiction. Id.; Cox v. Howard, Weil, Labouisse,

Friedrichs, Inc., 512 So. 2d 897, 899 (Miss. 1987).

¶20. Because the Rolisons dismissed their appeal, they lost their opportunity to challenge

the issues embraced by the Rule 54(b) final judgment, including whether the entry of the

judgment complied with Rule 54(b). The Rolisons’ argument that the Rule 54(b) final

judgment was interlocutory is untimely. Therefore, this Court lacks jurisdiction to adjudicate

the argument. M.R.A.P. 4(a).

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 III. WHETHER THE TRIAL COURT ERRED BY DENYING THE
MOTION TO INTERVENE BY GARY WAYNE ROLISON, JR., AND THE
ROLISON LOGGING/TIMBER COMPANY TRUST.

¶21. The Rolisons complain that the trial court erroneously disallowed the intervention of

Gary Wayne Rolison, Jr., and the Rolison Logging/Timber Company Trust. They argue that,

because these parties owned equipment and material on the sawmill property, their

participation in the litigation was necessary. They also contend that the trial court’s finding

that Gary Rolison and Martha Rolison had express or apparent authority to bind their son or

the trust was baseless.

¶22. Again, this issue is not properly before the Court. The trial court resolved this issue

in its bench ruling after the trial on the motion to enforce the mediation settlement agreement.

Subsequently, it entered a Rule 54(b) final judgment, from which the Rolisons perfected, and

later dismissed, an appeal. Because the Rolisons dismissed their appeal and the time for

taking an appeal from the Rule 54(b) final judgment has long passed, the Rolisons lost the

opportunity to challenge the trial court’s denial of the motion to intervene.

IV. WHETHER, BECAUSE THE PLAINTIFFS FAILED TO MITIGATE
THEIR DAMAGES, THE TRIAL COURT ERRED BY FINDING THAT
THE BREACHING PERIOD WAS FIFTEEN MONTHS.

¶23. The trial court found that the breaching period was fifteen months, with a beginning

date of July 1, 2011, when the Fryars would have begun sawmill operations had they

purchased the sawmill property as promised, and an ending date of September 14, 2012,

when the Fryars would have been able to begin sawmill operations after taking possession

pursuant to the second settlement agreement if the sawmill property had not been in disrepair.

13
The Rolisons and the Fryars consummated the second settlement agreement in August 2012.

This settlement agreement provided that the Rolisons would convey the sawmill property to

the Fryars by quitclaim deed. It also provided that the Rolisons would convey certain sawmill

equipment to the Fryars, including the blue mill. The agreement stated that the Rolisons had

fourteen days to remove certain equipment and materials from the property, including eighty

percent of the cypress lumber and eighty percent of the pine lumber and timber. The

agreement provided that the Rolisons would leave twenty percent of the cypress lumber and

twenty percent of the pine lumber and timber on the property. In exchange for all of this, the

Fryars would pay the Rolisons $400,000.

¶24. At trial, the Rolisons showed that the Fryars had refused a similar settlement

arrangement that they were offered on November 23, 2011. On that date, the Rolisons offered

to execute a quitclaim deed for the land and a bill of sale for the same equipment, including

the blue mill. But they did not offer to sell the Rolisons any of the lumber on the property.

Significantly, both the August 2012 settlement agreement and the November 2011 offer

provided that the Rolisons would get less than “all equipment and materials located on said

property as is where is as of the date of this agreement . . . .” as they had been promised in

the mediation settlement agreement.

¶25. The Rolisons argue that, if the Fryars had accepted the November 23, 2011, settlement

offer, they would have had the sawmill operational in the next six weeks, prevented nine

months of deterioration to the sawmill property, and likely prevented the theft and vandalism

that further damaged the property. They contend that the Fryars’ refusal of the November 23,

14
2011, offer was unreasonable and failed to mitigate damages and, therefore, the trial court

should have limited the breaching period to six months. The Fryars counter that this

argument is “absurd” because they had no duty to mitigate damages by accepting less than

they had been promised in the mediation settlement agreement.

¶26. An injured party has a duty to take reasonable steps to mitigate damages. Nat’l Dairy

Prods. Corp. v. Jumper, 241 Miss. 339, 334, 130 So. 2d 922, 923 (1961). Under the doctrine

of avoidable consequences, an injured party is not entitled to recover damages which he or

she could have avoided through reasonable efforts. Manhattan Nursing & Rehab. Ctr., LLC

v. Pace, 134 So. 3d 810, 818 (Miss. Ct. App. 2014) (citing Munn v. Algee, 924 F.2d 568,

573 n.9 (5th Cir. 1991) (collecting Mississippi cases)). “This legal principle ‘deals not with

the conduct of a plaintiff contributing to his injury, but with his failure to avoid the

consequences of his injury after it has been inflicted, to avoid or diminish the damages

resulting from his injury.’” Manhattan Nursing, 134 So. 3d at 818 (quoting Yazoo & M.V.R.

Co. v. Fields, 188 Miss. 725, 732, 195 So. 489, 490 (1940)).

¶27. This Court rejects the Rolisons’ argument that the trial court should have limited the

breaching period to six months due to their November 2011 settlement offer. The Rolisons’

November 2011 offer was for less than the Fryars were entitled to receive under the court

order for performance of the mediation settlement agreement. The Fryars did not act

unreasonably by refusing to enter into a new contract for less than they had bargained for in

the mediation settlement agreement. Although the Fryars’ negotiation of the August 2012

agreement gained them little more than the Rolisons had offered in November 2011, the

15
Fryars had no duty to mitigate damages by entering into a new contract for less than they

were entitled to receive under the mediation settlement agreement. See United States v.

Sabin Metal Corp., 151 F. Supp. 683, 690 (S.D.N.Y. 1957) (stating that “[t]he defendant’s

offer to the plaintiff of something other than that to which it is entitled as compensation is

not admissible in mitigation”).

V. WHETHER THE TRIAL COURT ERRED BY AWARDING THE
FRYARS DAMAGES FOR DETERIORATION OF THE SAWMILL
PROPERTY.

¶28. The Rolisons argue that language in the August 2012 settlement agreement foreclosed

the Fryars’ recovery for deterioration of the sawmill property that occurred during the

breaching period. Specifically, the Rolisons assert that the August 2012 settlement agreement

stated that the Fryars accepted the sawmill property and equipment “as is, where is,” as of

the date of the agreement. But the August 2012 settlement agreement and the associated bills

of sale do not contain the words “as is, where is” or any other language indicating the Fryars

intended to relinquish their claim for damages attributable to the breached mediation

settlement agreement. To the contrary, the settlement agreement stated that “[t]his Settlement

Agreement in no way compromises or addresses the claim for damages that Caleb Fryar has

against the parties to the above captioned litigation, should he choose to pursue that cause

of action.” In the motion to enforce the settlement agreement, the Fryars had claimed

reasonable damages incurred due to the delay caused by the Rolisons’ breach. Thus, the

August 2012 settlement agreement preserved the Fryars’ claim for damages for breach of the

mediation settlement agreement, including deterioration of the sawmill property.

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 VI. WHETHER THE TRIAL COURT ERRED BY AWARDING DAMAGES
FOR THE STOLEN MOTORS AND STOLEN AND/OR DAMAGED
WIRING AT THE MILL.

¶29. The Fryars showed that, during the breaching period, several motors had been

removed and wiring intentionally was cut and/or removed from the blue mill, which was the

sawmill the Fryars eventually began operating. Investigator Josh Bateman with the Tippah

County Sheriff’s Department testified that three persons had been charged with theft of

motors and wiring from the sawmill property that had been reported on July 6, 2012, and July

13, 2012. The Fryars presented evidence that the missing motors had a value of $39,433.50.

They showed that the damaged or missing wire had cost $36,827.50 to replace or repair. The

trial court accepted the Fryars’ proof and awarded them the amounts claimed.

¶30. The Rolisons contend that the trial court erred by awarding the Fryars damages for the

missing motors and missing or damaged wiring. First, they argue that the Fryars’ agreement

to accept certain equipment at the sawmill property “as is, where is” on August 15, 2014,

precludes their recovery. As noted in the discussion of the previous issue, the August 15,

2014, agreement does not include the language, “as is, where is,” and it expressly preserved

the Fryars’ claim for damages for breach of the mediation settlement agreement.

¶31. Second, the Rolisons argue that the Fryars failed to prove that the value of the missing

motors was $39,433.50. However, even if the extent of damages is uncertain, recovery is

allowed if the nature of the damages is certain. Benchmark Health Care Ctr., Inc. v. Cain,

912 So. 2d 175, 179 (Miss. Ct. App. 2005). This Court has stated that:

[W]here it is reasonably certain that damage has resulted, mere uncertainty as
to the amount will not preclude the right of recovery or prevent a jury decision

17
 awarding damages. This view has been sustained where, from the nature of the
case, the extent of the injury and the amount of damage are not capable of
exact and accurate proof. Under such circumstances, all that can be required
is that the evidence – with such certainty as the nature of the particular case
may permit – lay a foundation which will enable the trier of fact to make a fair
and reasonable estimate of the amount of damage. The plaintiff will not be
denied a substantial recovery if he has produced the best evidence available
and it is sufficient to afford a reasonable basis for estimating his loss.

Cain v. Mid-South Pump Co., 458 So. 2d 1048, 1050 (Miss. 1984).

¶32. The Fryars’ proof that the value of the missing motors was $39,433.50 was a quote

from supplier JESCO, Inc., to replace each type of missing motor with a new motor. The

Rolisons did not refute the reasonableness of these costs. In fact, the Rolisons admitted that

they had claimed $55,000 from their insurance company for the value of the missing motors.

We find that the Fryars provided the trial court a reasonable foundation to estimate the

damages, and the trial court’s decision to award the Fryars $39,433.50 for the missing motors

was supported by substantial, credible evidence.

¶33. Next, the Rolisons argue that they should not have been held liable for missing motors

and wire removed from the sawmill property by thieves. However, they cite no authority for

this proposition. “This Court has repeatedly held that failure to cite any authority may be

treated as a procedural bar.” City of Jackson v. Internal Engine Parts Grp., Inc., 903 So.

2d 60, 66 (Miss. 2005) (citing Williams v. State, 708 So. 2d 1358, 1361 (Miss. 1998)).

Notwithstanding the procedural bar, the theft and vandalism itself evidenced that the

Rolisons had failed to secure the property reasonably against third-party criminal activity.

VII. WHETHER THE TRIAL COURT ERRED BY COMPENSATING THE
FRYARS FOR DAMAGE TO THE SCALES.

18
¶34. A set of scales was located on the sawmill property that was used to weigh logging

trucks. Ownership of the scales was disputed between the Rolisons and the Fryars; however,

at the trial it was established that the Fryars owned the scales. But, because the scales were

located on the sawmill property which the Rolisons owned, the Rolisons exercised dominion

and control over the scales during the breaching period. In fact, at the bench trial on the

motion to enforce the settlement agreement, Gary Wayne Rolison, Jr. testified that the

Rolisons had paid to have concrete poured so the scales could be recertified to comply with

certain government regulations.

¶35. Caleb Fryar testified that, when the Fryars took possession of the property after the

August 15, 2012, settlement agreement, he discovered that the wires to the scales had been

cut, necessitating repair costs. He also incurred costs to add concrete and asphalt to level the

scales to comply with a new regulation. He testified that, if he had gained possession of the

sawmill property in 2011 pursuant to the mediation settlement agreement, the scales would

have been “grandfathered in,” and no modifications would have been required to comply

with the new regulation. The trial court awarded the Fryars the $10,873.02 they claimed for

damages related to the scales.

¶36. The Rolisons argue that, because the Fryars owned the scales, they were not entitled

to recover the costs of the cut wires or the required modifications to the scales. They further

argue that, because the Fryars owned the scales, they and not the Rolisons were responsible

for their upkeep. Further, they argue that, because the Fryars had owned the scales all along,

the scales were “grandfathered in” and the Fryars were not required to modify them and did

19
so at their own peril.

¶37. We find that the trial court’s award of the full cost claimed by the Fryars to repair and

modify the scales was supported by substantial, credible evidence. The damage to the scales’

wiring occurred when the scales were under the dominion and control of the Rolisons. And

Caleb Fryar testified that the regulation required modification of the scales when they came

into his possession. The Rolisons did not refute this testimony by showing that the regulation

required no modification of the scales if they were under continuous ownership by the same

individual or entity. Certainly, the scales were not in continuous operation, and the regulation

may have required the modification when use of the scales resumed. In any event, Caleb

Fryar’s testimony constituted substantial, credible evidence upon which the trial court was

entitled to rely.

VIII. WHETHER THE TRIAL COURT ERRED BY AWARDING THE
FRYARS COMPENSATION FOR MISSING SCRAP METAL.

¶38. During the breaching period, the Rolisons’ son, Gary Wayne Rolison, Jr., removed

scrap metal from the sawmill property despite the court order not to remove anything from

the property. Caleb Fryar presented photographs of Gary Wayne Rolison, Jr., removing scrap

metal, and he testified that approximately one-half of the scrap metal on the property had

been removed. The trial court found that the Rolisons had allowed items to be removed from

the sawmill property in violation of the court order. The Fryars valued the missing scrap

metal at $22,471.95, representing the amount they had received when they sold the remaining

scrap metal. The trial court found that the Fryars had presented the best estimate of the value

of the missing scrap metal, and awarded them $22,471.95.

20
¶39. The Rolisons argue that the Fryars were not entitled to compensation for the missing

scrap metal because Gary Wayne Rolison, Jr., was not a party to the litigation. With this

contention, they repeat their argument that the Rolisons cannot be held liable for damage to

the sawmill property caused by third parties. Again, the Rolisons cite no authority for this

proposition, so this argument is procedurally barred. Internal Engine Parts Grp., Inc., 903

So. 2d at 66. Notwithstanding the procedural bar, the trial court specifically found that the

Rolisons had allowed others to remove items from the property, in violation of the court

order.

¶40. The Rolisons also argue that Gary Wayne Rolison, Jr., would have been unable to

remove the 130 tons of scrap metal which the Fryars claimed was missing because removing

that amount would have required multiple eighteen wheelers. The trial court was faced with

conflicting evidence on the scrap metal issue. We find that the trial court’s resolution of the

conflicting evidence in favor of the Fryars was supported by substantial, credible evidence.

IX. WHETHER THE TRIAL COURT ERRED BY AWARDING THE
FRYARS DAMAGES FOR LOST PROFITS.

¶41. The Fryars claimed lost profits of $230,356.47 attributable to their inability to run the

blue mill during the breaching period. The trial court found that they had presented the

testimony of “experts with substantial experience” in the sawmill industry to support the lost

profits claim. With the assistance of the experts, the Fryars compiled monthly profit and loss

projections which were admitted into evidence.

¶42. The Fryars’ projections showed they expected to cut an average of 20,000 board feet

of lumber per day. The projections included the number of work days per month, the cost of

21
logs, and the prices at which the Fryars expected to sell the three types of lumber produced

by the blue mill, including crossties, one-inch lumber, and “cants,” defined as four-by-six-

inch lumber. The projections also included other expected costs of production including

payroll, workers’ compensation insurance, and other expenses. Caleb Fryar testified that, for

the breaching period, Koppers, Inc., had agreed to buy all crossties produced, Hassell &

Hughes Lumber Company had agreed to buy all one-inch lumber produced, and Tenn-Tom

Pallet had committed to buy all cants produced. Representatives from Koppers, Inc., and

Hassell & Hughes Lumber Company corroborated Caleb Fryar’s testimony about their

companies’ purchasing commitments. The general manager of another lumber company gave

expert testimony supporting the Fryars’ projections. The Fryars also showed that they had run

the blue mill for approximately six days in December 2014 and averaged more than 20,000

board feet per day.

¶43. The Rolisons presented the testimony of an accountant, Charles L. Davis, Jr., along

with documents showing that Rolison Tie and Timber Company had operated the blue mill

at a loss in 2006. Davis testified that he had compared the Fryars’ projections with the actual

operating expenses that Rolison Tie and Timber Company had incurred in 2006 and had

concluded that the Fryars would have operated at a loss during the breaching period.

However, it was established that Davis had not considered certain lumber that Rolison Tie

and Timber Company had cut, but not sold, that was left on the sawmill property. Nor did he

take into consideration that, instead of the fifteen employees that Rolison Tie and Timber

Company had used to run the blue mill, the Fryars planned to use eight. Further, Davis

22
admitted that the Fryars planned to cut different types of wood than Rolison Tie and Timber

Company had cut. He also admitted that the goal of cutting 20,000 board feet per day was

a conservative estimate of what the Fryars could produce.

¶44. The trial court found that the Fryars had sustained lost profits during the breaching

period. The trial court found from the testimony of the industry experts and the accountant

that, if the sawmill had operated during the breaching period, a supply of materials and a

market had existed for the sawmill’s finished products. The trial court found that this

testimony “removed the question of whether revenue, costs, and profit might be speculation.”

The trial court further found from the testimony of Samuel Robert Bradley, a regional

director for Koppers, Inc., that the amount of money available from Koppers for lending to

sawmills had reduced drastically from the time the Fryars had tendered their purchase money

to the Rolisons under the mediation settlement agreement and when the Fryars actually took

possession of the sawmill in August 2012. Bradley testified that, if the Fryars had received

the sawmill when promised under the mediation settlement agreement, Koppers, Inc., had

$250,000 available for the purchase of logs to get the mill running.5 Bradley testified that,

due to changes in the market and funds availability unrelated to this case, the funds available

to the Fryars had been reduced to $50,000. The trial court found that the evidence supported

a loss of profits of $75,000. Thus, the trial court awarded less than half of the lost profits

claimed by the Fryars. The trial court did not explain how it determined this number or note

which evidence it found most credible.

5
Caleb Fryar testified that Koppers had agreed to lend him money to buy logs and
to fund operating expenses with repayment in crossties.

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¶45. The Rolisons argue that the Fryars’ projections contain several miscalculations which,

when corrected, show that the blue mill would have operated at a loss. First, they contend

that the Fryars’ claim that they would have produced an average of 238 crossties a day is

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

The Fryars claimed they would have averaged 10,000 board feet of crossties per day. The

Fryars’ evidence that they would have averaged 238 crossties a day was based on the

testimony of Koppers, Inc., employee Joe Foley and sawmill manager Tony Jarrell that

10,000 board feet would yield approximately 238 seven-by-nine-inch crossties. Thus, the trial

court was presented evidence supporting the Fryars’ projected crosstie production.

¶46. Second, the Rolisons contend that the Fryars underestimated the costs to operate the

blue mill. The Fryars’ expenses for the approximately six days of operation in December

2014 showed $158 for workers’ compensation insurance and nothing for taxes and liability

insurance. The Rolisons complain that the Fryars’ expert, Tony Jarrell, represented that it

would cost $4,000 per month for taxes and liability insurance and $2,000 a month for

worker’s compensation insurance to run the sawmill. The Rolisons claim that, correcting for

these errors, a proper calculation of operating expenses would mean the mill cost $134.56

per thousand board feet to operate, not $112.50 as claimed by the Fryars. However, the

Rolisons’ expert accountant testified that, considering Tony Jarrell’s calculations, $112.50

per thousand board feet in operating expenses for the blue mill was a conservative estimate.

And Tony Jarrell testified that the cost of workers’ compensation insurance varies, and that

his workers’ compensation estimate of $2,000 per month was based on the cost of workers’

24
compensation for his own sawmill, which had increased coverage costs due to accidents.

Thus, the trial court was within its discretion in relying, to whatever extent it did, on the

Fryars’ estimate of tax and insurance expenses. Moreover, the trial court awarded the Fryars

less than half of their claim for lost profits.

¶47. Next, the Rolisons attack the Fryars’ claim that the cost of logs was $55 per ton. They

contend that the Fryars’ expert, Tony Jarrell, admitted that the cost of oak logs was between

$60 and $62 per ton, and Gary Rolison testified that he had sold oak logs for between $60

and $68 during the breaching period. However, Caleb Fryar testified that the projections

considered that they would buy both oak and mixed hardwood logs, and Tony Jarrell testified

that mixed hardwood logs cost $55 per ton. The Rolisons fail to explain how these

differences in log costs would have destroyed the profitability of the Fryars’ milling

operation during the breaching period. Importantly, the trial court awarded the Fryars less

than half of their claimed lost profits. The trial court was permitted to accept, to the extent

that it did, the Rolisons’ estimate of the cost of logs.

¶48. The Rolisons also complain that the representative from Hassell & Hughes Lumber

Company testified that, although the company had committed to purchase all the one-inch

lumber the Fryars produced, the company never had bought one-inch lumber from the Fryars.

However, Caleb Fryar testified that he currently was selling all the one-inch lumber to

another customer. Thus, contrary to the Rolisons’ argument, the Fryars did present evidence

of a market for one-inch lumber.

¶49. The Rolisons also argue that the trial court should have placed more weight on the fact

25
that, in 2006, Rolison Tie and Timber Company had run the blue mill at a loss than on the

Fryars’ projection of future profits. They also complain that the Fryars had operated the blue

mill in October and November 2014 but submitted no data for those months. “In Mississippi,

a party may recover for loss of future profits in a breach of contract action so long as such

profits are proved to a reasonable certainty and not based on mere speculation or conjecture.”

Benchmark Health Care Ctr. v. Cain, 912 So. 2d 175, 179 (Miss. Ct. App. 2005). When

damages have occurred, mere uncertainty as to the amount does not preclude recovery. Id.

(quoting Cain v. Mid-South Pump Co., 458 So. 2d 1048, 1050 (Miss. 1984)). “[A]ll that can

be required is that the evidence – with such certainty as the nature of the particular case may

permit – lay a foundation which will enable the trier of fact to make a fair and reasonable

estimate of the amount of damage.” Cain, 458 So. 2d at 1050. The plaintiff is entitled to

recover if he has produced the best evidence available and that evidence provides a

reasonable basis for estimating the loss. Id. Purely speculative evidence of lost profits is

inadequate to support an award. Benchmark, 912 So. 2d at 180. But “[s]ome speculation

must be involved in an attempt to compute unrealized profits.” Id.

¶50. The Rolisons argue that, unlike in this case, in Benchmark, the lost future profits

evidence was based on past profits. Id. They further argue that, in Ballard Realty Co., Inc.

v. Ohazurike, 97 So. 3d 52 (Miss. 2012), this Court found that the plaintiff had not presented

adequate evidence of lost profits. In Ohazurike, this Court found that the plaintiff’s proof of

lost profits was unreliable because the plaintiff’s expert merely had adopted the plaintiff’s

“grandiose figures” and had reduced those amounts to present value. Id. at 61. And the expert

26
failed to deduct overhead, depreciation, taxes, or inflation. Id. This Court also found that

another expert’s testimony was unreliable because it was based on lofty estimates from the

plaintiff’s business plan, and the expert had admitted that historical data is a better basis for

valuation. Id. at 64.

¶51. We conclude that the trial court’s award of $75,000 for lost profits was supported by

substantial evidence. The trial court found that the Fryars had put forth the best evidence of

lost profits. Unlike Ohazurike, the Fryars’ projections were based on sound testimony of

industry experts and included estimates for the anticipated expenses of running the sawmill.

Thus, the projections were not purely speculative, and the trial court was entitled to rely on

them. Notably, the trial court awarded the Fryars less than half their projected lost profits.

The Rolisons are entitled to no relief on this issue.

X. WHETHER THE TRIAL COURT ERRED BY AWARDING THE
FRYARS THE FULL AMOUNT OF ATTORNEY FEES CLAIMED.

¶52. The trial court found that the Fryars had incurred attorney fees in the amount of

$92,772.70 in connection with the enforcement of the breached mediation settlement

agreement and that those fees were reasonable and necessary to enforce the settlement

agreement fully. The trial court awarded the full amount of attorney fees requested because

the Rolisons “intentionally disregarded the expressed and unambiguous terms of the

Mediation Agreement and the orders of the Court and removed property or allowed property

to be removed that was subject to the Mediation Agreement.” The trial court found that this

conduct was so outrageous that it supported an award of attorney fees.

¶53. Generally, a party may not recover attorney fees for breach of contract. Bluewater

27
Logistics, LLC v. Williford, 55 So. 3d 148, 164 (Miss. 2011). However, attorney fees may

be awarded if they are provided for in the contract, or for conduct that is so outrageous that

it would support an award of punitive damages. Id. The Rolisons argue that attorney fees

were not warranted because they complied with the trial court’s order enforcing the

settlement agreement by making the November 23, 2011, settlement offer to the Fryars.

¶54. The Rolisons’ argument misconstrues the trial court’s findings. The trial court found

that the Rolisons’ breach of the March 2, 2011, mediation settlement agreement was

intentional. This finding had nothing to do with the order enforcing the mediation settlement

agreement, which the trial court had entered as a remedy for the Rolisons’ breach of that

agreement. Copious evidence was before the trial court that the Rolisons’ breach of the

mediation settlement agreement was intentional, including the plain language of the

mediation settlement agreement and the testimony of the mediator that, to all appearances,

the Rolisons knowingly had agreed to its terms when they signed it. Further, the trial court

was confronted with evidence that the Rolisons had removed items from the sawmill

property, or had allowed items to be removed, in violation of court orders. Therefore, the trial

court’s finding that the Rolisons’ wrongful conduct was intentional was supported by

substantial, credible evidence.

¶55. The Rolisons also argue that the Fryars were not entitled to full attorney fees because

they did not mitigate damages by accepting the November 23, 2011, settlement offer. As

discussed in Issue IV, the Fryars’ duty to make reasonable efforts to mitigate their damages

did not include an obligation to accept the November 23, 2011, offer and to accept less from

28
the Rolisons than what they had bargained for in the mediation settlement agreement.

Therefore, this argument is without merit. The trial court did not err by awarding the Fryars

their full attorney fees.

CONCLUSION

¶56. Because the Rolisons dismissed their appeal from the Rule 54(b) final judgment, their

arguments that their jury trial waiver was ineffective, that the trial court’s Rule 54(b)

certification was erroneous, and that the trial court erroneously denied a motion to intervene

are not properly before the Court. The trial court’s finding that the Rolisons waived their

right to a jury trial on damages and attorney fees was not manifestly erroneous. And the trial

court’s awards of damages and attorney fees were supported by substantial, credible

evidence. Therefore, we affirm the judgment of the Circuit Court of Tippah County.

¶57. AFFIRMED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KING, COLEMAN
AND BEAM, JJ., CONCUR. MAXWELL, J., CONCURS IN PART AND IN RESULT
WITH SEPARATE WRITTEN OPINION JOINED BY LAMAR, J.

MAXWELL, JUSTICE, CONCURRING IN PART AND IN RESULT:

¶58. I agree that the trial court’s final judgment should be affirmed. The Rolisons forfeited

the right to a jury through their conduct. And the Fryars’ award for damages and attorney

fees was supported by the evidence.

¶59. But I question the Rule 54(b) certification and the majority’s reliance on the finality

of that judgment. To me, the December 2011 judgment declaring the settlement agreement

enforceable does not appear to have been a final, appealable judgment—despite its Rule

29
54(b) designation. See M.R.C.P. 54(b). As this Court recently reiterated, Rule 54(b) can be

invoked only “in a relatively select group of cases and applied to an even more limited

category of decisions.”6 Brown v. Collections, Inc., 188 So. 3d 1171, 1175 (Miss. 2015).

And “decisions that leave a portion of the claim pending as to all defendants” do not fit in

this narrow category. Id.

¶60. Here, as the majority acknowledges, the December 2011 order left a portion of the

Fryars’ settlement-enforcement claim pending—i.e., the issues of damages and attorney fees.

So according to our precedent, it was “not a true Rule 54(b) judgment.” White v. Mills, 735

So. 2d 428, 431 (Miss. 1999) (holding the grant of summary judgment was “not a true Rule

54(b) judgment” because it “left a portion of the claim pending—i.e., that portion dealing

with the relief due”); see also Colum Law Firm v. Bd. of Trustees, 16 So. 3d 692, 695

(Miss. 2009) (holding that “the trial court’s ruling as to whether the meeting could be

declared void does not properly fall within the purview of Rule 54(b)” because “portions of

the claim—the factual allegations and the remaining prayers for relief—are still pending as

to all the defendants”). And since it was not a true Rule 54(b) judgment, no appellate

jurisdiction arose over the Rolisons’ earlier appeal. See Brown, 188 So. 3d at 175-77

(dismissing the appeal sua sponte for lack of jurisdiction because Rule 54(b) certification was

invalid); White, 735 So. 2d at 432 (holding, despite no challenge to the Rule 54(b)

certification, the Court of Appeals plainly erred by entertaining the appeal).

6
“For an order or judgment to qualify for Rule 54(b) finality, the case must include:
(1) either multiple claims, multiple parties, or both; and (2) either one or more but fewer than
all claims must have been decided or all rights and liabilities of at least one party must have
been adjudicated.” Brown v. Collections, Inc., 188 So. 3d 1171, 1175 (Miss. 2015).

30
¶61. It is this lack of appellate jurisdiction that distinguishes this case from the Ninth

Circuit case the majority cites, In re Lindsey, 59 F.3d 942, 951 (9th Cir. 1995). In that case,

the district court made a Rule 54(b) certification without making the requisite on-the-record

findings. Still, the Ninth Circuit held that the Rule 54(b) certification triggered the time to

appeal because the “lack of . . . findings is not a jurisdictional defect.” Id. See also Cox v.

Howard, Weil, Labouisse, Friedrichs, Inc., 512 So. 2d 897, 901 (Miss. 1987) (suggesting,

but not requiring, the “trial court to set forth specific reasons and findings prefatory to

entering a Rule 54(b) judgment”). But here, the defect is jurisdictional. This is not a case

where the trial court should not have certified as final a judgment disposing of less than all

claims. See, e.g., Cox, 512 So. 2d at 901. Rather, this is a case where the trial court could

not certify its decision as final, because it did not dispose of any claim. See, e.g., Brown, 188

So. 3d at 175-77; White, 735 So. 2d at 432.

¶62. So the Rolisons have not “lost their opportunity to challenge the issues embraced by

the Rule 54(b) final judgment,” because no such opportunity arose in the first place. Had the

Rolisons pursued their prior appeal—as the majority finds they should have—this Court

could not have addressed the issues raised, due to the lack of appellate jurisdiction. Instead,

it was only when the settlement-enforcement claim was fully resolved in February 2015 that

all underlying issues became final and appealable.

¶63. That said, there is no merit to the Rolisons’ jury-trial argument. As the majority points

out, the Rolisons litigated the enforcement issue through a bench trial “without objection and

without demanding a jury trial.” So they forfeited their right to a jury trial. And because of

31
this forfeiture, I concur with the majority that the trial court did not err by continuing the

bench trial on the issues of damages and attorney fees.

¶64. I also concur with the majority’s holding that the trial court did not err in denying the

motion to intervene and in determining appropriate amount of damages and attorney fees.

Thus, I concur in part and in result.

LAMAR, J., JOINS THIS OPINION.

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