dissenting.
I respectfully dissent because I disagree with the majority’s conclusion that the outcome of the litigation between MAC Construction & Excavating, Inc. (“MAC”) and the University of Louisville (“U of L”) was not a substantial change of circumstances that allowed U of L to cancel the original *588contract between RAM Engineering & Construction, Inc. (“RAM”) and U of L. But before explaining the reasons for my dissent, I take a moment to address the majority’s discussion regarding the question of whether RAM was an indispensable party to this litigation.
CR 19.01 provides in pertinent part:
A person who is subject to service of process, either personal or constructive, shall be joined as a party in the action if (a) in his absence complete relief cannot be accorded among those already parties, or (b) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.
As noted by the majority, RAM did not move to intervene in this action even though it could have. Op. at 582, 583. Thus, the issue here is not whether the trial court erred in denying RAM’s motion to intervene, and the considerations of CR 19.01(b) do not apply. Therefore, the indispensable party issue is limited to the question of whether the trial court should have sua sponte joined RAM because “complete relief cannot be accorded among those already parties.”
The Court of Appeals correctly concluded that the trial court did not err in failing to join RAM, because RAM was not a necessary party to MAC’s claim that the bidding procedure used by U of L was unlawful. That is, inclusion of RAM in the proceedings was not necessary to accord “complete relief1’ to either MAC or U of L. True, the Agreed Order did have the effect of voiding U of L’s contract with RAM, but it did not do so via construction or interpretation of that contract. This left MAC with full legal recourse for its claim of breach of contract, which is what RAM raised in the underlying law suit. I now turn to the question of whether the Agreed Order was a substantial change of circumstances that allowed U of L to cancel its,, original contract with RAM under the termination for convenience clause.1
I strongly disagree with the majesty's conclusion that the MAC litigation '¿tid the; entry of the Temporary Restraints Order were not sufficient changes hi .circumstances to justify canceling the original RAM contract under the termination for convenience clause. This clause provided that U of L could cancel the contract when it was in U of L’s best interest to do so.
The majority found these events to be insufficient reasons to cancel the contract because “[ajlthough the litigation may have eventually delayed construction of the stadium beyond the construction deadlines, and may have resulted in an increased cost, neither event had yet occurred.” Op. at 587. On the contrary, the possibility of delay in construction made it strongly in U of L’s best interest to cancel the contract in order to prevent the delay from occurring.
To benefit from the construction of the stadium, U of L had to be able to use it. The stadium’s primary use is for college football games. Consequently, U of L had a strong interest in seeing that construction of the stadium was done timely because its use is tied to a time period — the college football season — that it cannot change. The majority reasons that U of L should have waited until delay was not just a possibility, but an actual fact. But at that point, U of L may have had a lot less *589reason to cancel the contract, because the opportunity to use the stadium for the 1998 football season may well have been lost along with the considerable revenues and profits generated by the new stadium.2 In other words, the majority is punishing U of L for not litigating this action. In so doing, the majority fails to recognize that sometimes it is better to retreat than to fight.
The majority holds U of L “responsible” for its retreat, ie., entering into the Agreed Order, and implies that it acted in bad faith by doing so. This is simply not true. The temporary restraining order entered against U of L was not an adjudication of liability or fault by U of L. Rather, the temporary restraining order caused U of L to enter into the Agreed Order with MAC even though it “dispute[d] MAC’S claims and its entitlement to any relief.” U of L did so because it “believe[d] time [was] of the essence in the construction of the Stadium and it [was] in its best interest to resolve [the litigation] as quickly as possible.” In other words, U of L weighed its options and concluded that entering into the Agreed Order was its best course of action. U of L merely made the best of a bad situation. Thus, what U of L is ultimately “responsible” for is acting prudently in its own best interest. Therefore, it was entitled to cancel the contract with RAM under the termination for convenience clause, and therefore I dissent.
LAMBERT, C.J., and COOPER, J., join this dissenting opinion.
. I find it curious that the majority chooses to address this issue after holding that RAM was an indispensable party to the litigation between MAC and U of L. If true, this holding should have resolved the case.
. One source puts the profits generated by the stadium during its first year of use at $1.6 million. See http://www.sfo.com/ csup-pes/NCAA/ConfUSA/index.htm? Louisville/index.htm visited on November 12, 2003. The potential loss of such a considerable and expected sum would certainly seem to be a substantial change of circumstances brought about by the specter of delay created by the MAC litigation.