The South Dakota Cement Plant (Cement Plant) appeals from a judgment for Har-drives, Inc. (Hardrives), a highway construction subcontractor for the general contractor, Arcon Construction Co., Inc. (Ar-con). We affirm.
FACTS
Arcon commenced a breach of contract action against Cement Plant on April 17, 1980. This action was based upon Cement Plant’s failure to make timely delivery of certain quantities of cement Arcon had required on two highway paving projects scheduled for the 1978 construction season. Without the supply of cement, Arcon was unable to perform work on the projects until the 1979 and 1980 construction seasons.
Arcon’s subcontractor, Hardrives, like Arcon, suffered increased costs due to the delays. Although Hardrives did not use cement for its bituminous work, Hardrives’ *877work was delayed because it could not build the asphalt shoulder until Arcon finished paving the roadway.
During the period construction was delayed, prices for materials used by Har-drives increased substantially. In a letter to Arcon dated May 5, 1980, Hardrives requested that its subcontract be amended to cover the increased costs it expected to incur due to the delays. Arcon responded by letter dated May 28, 1980, in which Arcon offered to pay Hardrives an additional $12,500 as a change order to the subcontract. In addition, Arcon requested that Hardrives furnish evidence of the projected increased cost of materials so that Arcon could make a claim for those costs. The change order further provided:
If the Subcontractor chooses to participate in any claim the Contractor makes against the South Dakota Department of Transportation or the South Dakota Cement Plant, and if the Contractor does recover, $12,500 will be retained by the Contractor in consideration of this change order.
By virtue of this change order, Hardrives assigned its claim against the Cement Plant (damages exceeding $12,500) to Arcon, and Arcon agreed to bring that claim on behalf of Hardrives. On October 4, 1982, Arcon moved to amend its complaint to include the damages of its subcontractor, Har-drives. The trial court denied the motion. The case proceeded to trial and the jury found in favor of Arcon. On appeal, this court affirmed the liability determination but reversed and remanded for retrial on the damage issues. Arcon Constr. Co. v. South Dakota Cement Plant, 349 N.W.2d 407 (S.D.1984) (Arcon I).
Thereafter, on August 9, 1984, Arcon moved the assigned claim be included by allowing Hardrives as a party plaintiff. This motion was part of Arcon’s motion to further amend the complaint, which included claims for certain other damages caused to Arcon. Prior to retrial there were appeals from the interlocutory order of the trial court. This court again remanded for a new trial on damages and also directed Arcon be allowed to amend its complaint with additional claim items. Arcon Constr. Co., Inc. v. South Dakota Cement Plant, 382 N.W.2d 668 (S.D.1986) (Arcon II).1
Our initial decision clearly requires a “retrial on the damage question.” We interpret this to mean a retrial of all of the elements of damages claimed by Ar-con, including those provided for in the amended complaint.
[W]e reverse with directions to allow amendment of the complaint as embodied in Arcon’s motion.... upon retrial, all the elements of damages claimed by Ar-con including those provided for in the amended complaint, may be properly considered.
Arcon II, 382 N.W.2d at 672.
Thereafter, on March 14, 1986, Arcon filed another motion to amend the complaint which among other things again sought to add Hardrives as a party plaintiff. The trial court, construing our decision in Arcon II, stated:
[T]he Supreme Court ... has made it clear ... that Hardrives is included, and they have essentially directed liability in my opinion ... they have clearly allowed Hardrives to become a party through Arcon ... the Supreme Court has directed liability in favor of Hardrives and against the Cement Plant.
(Pretrial Proceedings of March 26, 1986 at pp. 15 and 17).
The trial court granted Arcon’s motion as to Hardrives on April 8, 1986. In addition, the trial court in essence directed liability in favor of Hardrives without consideration of the statute of limitations and privity defenses asserted by Cement Plant. Cement Plant argued that Hardrives had no valid cause of action to assign to Arcon, even assuming some assignment had been made.
*878At the conclusion of the 1986 retrial on damages the jury was instructed that the question of Cement Plant’s liability to Har-drives had already been determined and all that remained was to fix damages. The jury awarded Hardrives $20,542.05, which was the $33,042.05 increased cost of burner fuel and asphalt less the $12,500 Hardrives had already received from Arcon. This appeal (Arcon IV) follows the trial court’s denial of Cement Plant’s motion for judgment notwithstanding the verdict pertaining to the $20,542.05 award to Hardrives.
Cement Plant’s Claims
Cement Plant claims that it is immune from a delay damages suit brought by one who is not a buyer and not a party to any contract under the U.C.C., and that the claim was barred by the applicable U.C.C. statute of limitations.
Decision
In Arcon I, we held that sovereign immunity does not bar a breach of contract action under the U.C.C. against Cement Plant. Arcon II indicated that the trial court should allow Arcon to amend its pleadings to include other additional damages suffered by Arcon. The trial court ruled that Arcon II entitled Arcon to add Hardrives as a party. The trial court disposed of Cement Plant’s privity and statute of limitation arguments based on its understanding of Arcon II, which was that Har-drives had a claim in its own name, which claim related back to the very beginning of the lawsuit. Although it is not clear that Arcon II intended to have Hardrives added as a party, it is clear that it intended a retrial “of all of the elements of damages claimed by Arcon, including those provided for in the amended complaint.” Arcon II, supra at 672. This was a retrial on damages only because liability had been upheld by the Supreme Court in Arcon II. This became the law of the case2 and eliminates the immunity, privity, and statute of limitation defenses urged by Cement Plant.
Cement Plant also argues that Har-drives’ delay damages, except for the $12,-500 paid to Hardrives by Arcon, were not damages that Arcon could claim it suffered.
Cement Plant’s actions wrongfully delayed Arcon, which caused Hardrives $33,042.05 damages from Arcon, not just $12,500. Since Arcon must indemnify Har-drives, Arcon can claim all of these damages ($33,042.05) against Cement Plant, not just the $12,500 which was already included.
The trial court simply allowed Hardrives to prove its claim against Arcon, directly against the wrongdoer, the Cement Plant. This was simply another method of presenting the balance of Arcon’s claim against the Cement Plant. Essentially, this was more like a bifurcated trial on this issue of these damages. No harm was done. Cement Plant received a fair trial. Now, it is asking to be relieved of the result of that fair trial despite the fact that no substantial rights of the parties were affected. SDCL 15-6-61. We refuse that request; to do otherwise would produce gross injustice. It would take $20,542.05 from Hardrives and give it to the Cement Plant. This would be an undeserved “windfall” to the Cement Plant at the expense of the damaged party.
Judgment affirmed.
MORGAN and MILLER, JJ., concur. WUEST, C.J., and HERTZ, Circuit Judge, dissent. HERTZ, Circuit Judge, sitting for HENDERSON, J., disqualified.. Arcon Constr. v. South Dakota Dept. of Transp., 365 N.W.2d 866 (S.D.1985), dealt with separate projects. Arcon Constr. Co. v. South Dakota Cement Plant, 405 N.W.2d 45 (S.D.1987) (Arcon III), deals with this subject matter and prejudgment interest. The present appeal is Ar-con IV.
. See Dakota Block Co. v. Western Cas. & Sur. Co., 82 S.D. 546, 150 N.W.2d 729 (1967); Beeck v. Aquaslide ‘N’ Dive Corp., 350 N.W.2d 149 (Iowa 1984), citing United States v. Unger, 700 F.2d 445, 450 (8th Cir.), cert. denied, 464 U.S. 934, 104 S.Ct. 339, 78 L.Ed.2d 308 (1983); Cicelski v. Sears, Roebuck & Co., 132 Mich.App. 298, 348 N.W.2d 685 (1984).