author: HAWKINS, Justice,

text:
    Bert Lee FRAZIER and Joan P. Frazier, d/b/a Tupelo One Hour Martinizing No. 2 v. NORTHEAST MISSISSIPPI SHOPPING CENTER, INC.
    No. 54419.
    Supreme Court of Mississippi.
    Oct. 3, 1984.
    Rehearing Denied Nov. 28, 1984.

      Steven E. Cork, Mounce, McElroy & Cork, Tupelo, for appellant.
    Roy 0. Parker, Tupelo, for appellee.
    Before BOWLING, HAWKINS and SULLIVAN, JJ.
   HAWKINS, Justice,

for the Court:

Bert Lee Frazier and his wife Mrs. Joan P. Frazier (Fraziers) appeal from a final decree of the Chancery Court of Lee County denying an extension of a lease contract between the Fraziers and Northeast Mississippi Shopping Center, Inc. (Shopping Center), which the Fraziers contend they were entitled to under the provisions of the lease. We affirm.

The issue on this appeal is the construction of the written lease between the parties.

FACTS

On December 19, 1964, the Fraziers entered into a lease with Northeast Mississippi Shopping Center, Inc., for a building 80 feet by 30 feet in which to locate their second dry cleaning shop in Tupelo. The primary term of the lease was eight years, from September 1, 1964, to August 31, 1972. The monthly rental, by subsequent agreement was $165.

The lease also contained the following provisions:

Lessees shall have two (2) four (4) year options to extend this year under the same terms as conditions as set out above. If the Lessees elect to renew the lease under said option, said lessees must give the Lessor written notice not less than 6 months prior to the end of the term of this lease.
⅜ ⅝ 5¡{ Sfc * ⅜!
Five years after start of lease, Lessee has the option to request Lessor to expand the building an additional 20 feet or any part thereof, at the rear at an annual rental increase of 18-percent of total gross additional construction cost. Lessee retains the right to approve the bid reflecting cost of additional construction. The 20 feet immediately to the rear of the initial 82-foot building is construed to be under lease whether or not the Lessee exercises the additional option. If the option to expand is exercised, it is understood that this lease, inclusive of all options, shall be beginning anew. [Emphasis added]
* * * * * *
In an effort to establish a general understanding of numerous other items, may we mention the following provisions:
* * * * * *
(1) It is agreed that the Lessee and Lessor must mutually agree on all plans and specifications or else this lease is null and void.

Thus, by exercising the two extension options, the lease would run for a period of 16 years, from and after September 1, 1964, or to August 31, 1980.

On February 20, 1980, Frazier wrote the Shopping Center as follows:

Dear Mr. Fain:
As per the lease in caption, may I offer demand with special emphasis toward paragraph 3 on page 3 of the instrument. I have tentative plans to further diversify my services by going into the leather garment service business also. In connection therewith, I choose to extend the size of my building northward to encompass up to an additional 20’ which will incorporate the full width of 30’ ID. This further development will be of the same general specifications, materials, and labor-wise as is the existing building. All other facets and provisions of the lease shall be recognized as guidances. Please advise.
Mr. Fain replied on March 5, 1980:
Dear Mr. Frazier:
This is to advise that the suggestions in your letter of February 20, 1980, and those set out in Mr. Tate’s letter to me of the same date are not acceptable. It is our position that your lease with us expires on August 31, 1980. Unless a new lease containing terms acceptable to us has been negotiated prior thereto, we will expect you to surrender quiet and peaceable possession [sic] to us on August 31, 1980.

This was the genesis of the suit in the Chancery Court. We need not lengthen this opinion with all the injunctive proceedings. Suffice it to say it was the contention of the Frazier’s in the Chancery Court that under the clear terms of the lease they had the right by this letter of February 20, 1980, to extend the lease. Or, that upon receipt of the letter, Shopping Center was obligated to take steps toward adding to the building and the lease would be automatically extended. Counsel for the Frazi-ers do not enlighten us precisely as to how many years the lease was to be extended. It is clear, in any event, they contend that the lease was thereby extended, and did not terminate August 31, 1980.

In his ruling the chancellor took dead aim on the first sentence to the above paragraph beginning as follows: “Five years after start of lease ...” The chancellor then made the following pragmatic ruling:

The proof shows that complainants requested an additional twenty (20) feet be added to their leased premises under this paragraph, thereby, according to them, extending the lease for another term of eight (8) years, with an option for eight years.
The proof is this request for extention [sic] was made February 20, 1980, some fifteen (15) years and five (5) months after the start of the lease.
THIS COURT IS OF THE OPINION the complainants, lessees, have lost their rights under the paragraph by not exercising same within the time agreed to in this section; that fifteen years and five months is unreasonable to extend the rights set out herein.

The contention by the Fraziers on appeal is that they had a clear, unambiguous right to extend the lease by their letter dated February 20, 1980, and even if ambiguity exists, the contract should be interpreted in their favor, since it was drafted by Shopping Center.

Shopping Center admits it furnished a form lease, objected to by the Fraziers, and contends that another was drafted, with this particular paragraph inserted at the special instance and request of the Frazi-ers. The record itself is ambiguous on this question.

Shopping Center contends on appeal that a clear interpretation of the lease requires we hold the Fraziers had a period of five years from and after September 1, 1964, the beginning of the lease, in which to exercise the rights contained in this particular paragraph, and no longer.

To say this paragraph is free from doubt ignores the fact that intelligent lawyers reading it have come to opposite views. It is not clear to this Court. In the absence of the two parties who signed it informing us precisely what was meant, the most enlightened argument from here to the millennium would never remove the cloud cast by the words.

Nor, do we have to agree with counsel for Shopping Center that the Fraziers only had five years to the day from and after September 1, 1964, in which to notify the Shopping Center of their desire for an addition in order to extend the lease. It is obvious they did not attempt to exercise any such right remotely within that time frame.

We content ourselves with fully agreeing with the chancellor that it was manifestly unreasonable for the Fraziers to wait some fifteen years and five months after the start of the lease, and just a little more than six months before its end, to exercise their rights under this paragraph.

There was no increase in rent for sixteen years in a centrally located shopping center in one of the liveliest cities in this state. To claim that by this February 20, 1980, letter the Fraziers extended the lease for another eight, twelve or sixteen years at the same rent is simply incredible.

Parties are bound by what they promise in writing. But, we are not bound to adopt a construction not compelled by the instrument in which we would have to believe no man in his right mind would have agreed to.

A construction leading to an absurd, harsh or unreasonable result in a contract should be avoided, unless the terms are express and free of doubt.

Years ago this Court stated in Citizens’ Bank v. Frazier, 157 Miss. 298, 127 So. 716 (1930), p. 302 of the Mississippi Reports: “It is the duty of courts to give to a contract that construction or interpretation, if possible, which will square its terms with fairness and reasonableness, each party toward the other ...”

In Rubel v. Rubel, 221 Miss. 848, 75 So.2d 59 (1954), we said:

... It is also well settled that the words of a contract should be given a reasonable construction, where that is possible, rather than an unreasonable one; and the court should likewise endeavor to give a construction most equitable to the parties, and one which will not give one of them an unfair or unreasonable advantage over the other. 17 C.J.S., Contracts, § 319, page 739; Citizens’ Bank v. Frazier, 157 Miss. 298, 127 So. 716. “Constructions of contracts which would make them unfair or unjust are to be avoided, unless the terms are unambiguous and express.” McCain v. Lamar Life Ins. Co., 178 Miss. 459, 172 So. 495, 500. [75 So.2d 59 at 65].

Also see: Glantz Contracting Co. v. General Electric Co., 379 So.2d 912 (Miss. 1980), p. 917.

Other states have announced the same rule in interpreting leases. Atlantic Discount Corporation v. Mangel’s of North Carolina, Inc., 2 N.C.App. 472, 163 S.E.2d 295 (1968), p. 299 states: “A construction of a contract leading to an absurd, harsh or unreasonable result should be avoided if possible.” Atlantic Greyhound Corp. v. Smithdeal, et al. (C.A. 4th Cir.1951), 192 F.2d 453, p. 458, states: “If there is any doubt entertained as to the real intention, we should reject that interpretation which plainly leads to injustice, and adopt that one which conforms more to the presumed meaning, because it does not produce unusual and injust results.”

In Broida v. Hayashi, 51 Hawaii 493, 464 P.2d 285 (1970), the Court states: “In construing a lease we must avoid an unreasonable interpretation if that can be done consistently with the tenor of the agreement and choose the most obviously just interpretation as the presumed intent.”

Moreover, the right granted the Fraziers was, a simple option, given without additional consideration, which they were free to exercise or ignore. On the other hand, until the time for the exercise of the option had expired, Shopping Center was bound by the option it granted. Shopping Center had no right to compel its exercise, or even be notified by the Fraziers of their intent to exercise the option until the right expired. It is for this reason Courts generally hold that time is of the essence in exercising a simple option. We stated in Poole v. McCarty, 229 Miss. 170, p.176, 90 So.2d 190 (1956): “Time is of the very essence of an option ...”

In Robinson v. Martel Enterprises, Inc., 337 So.2d 698 (Miss.1976), p.703, we stated:

As a general rule, time is of the very essence of an option contract.... When the option contract calls for giving notice of the grantee’s intention to exercise the option, the great majority of courts have held that this provision is of the essence, and that upon failure to give timely notice, the option expires.

The Fraziers had the right to exercise the option five years after September 1, 1964, which was August 31, 1969. We must agree with the chancellor that the Fraziers had no right to wait over ten years following in which to exercise the option.

AFFIRMED.

WALKER and ROY NOBLE LEE, P.JJ., and BOWLING, DAN M. LEE, PRATHER, ROBERTSON AND SULLIVAN, JJ., Concur.

PATTERSON, C.J., not participating.


source: Caselaw Access Project

author: ROBERTSON, Justice,

license: Public Domain

text:
    James Dwight VICKERS and William Thomas, Jr., Trustee v. FIRST MISSISSIPPI NATIONAL BANK.
    No. 54408.
    Supreme Court of Mississippi.
    Oct. 31, 1984.

      J. Murray Akers, Greenville, for appellant.
    James K. Dukes, Dukes & Jernigan, Hat-tiesburg, Michael E. Friedlander, Washington, D.C., for appellee.
    Before ROY NOBLE LEE, P.J., and DAN M. LEE and ROBERTSON, JJ.
   ROBERTSON, Justice,

for the Court:

I.

This ease presents the substantive question whether, in the context of a third party beneficiary contract, a promisee/shareholder in the beneficiary corporation may on proper proof recover damages of and from his promisor consistent with our recent decision in Bruno v. Southeastern Services, Inc., 385 So.2d 620 (Miss.1980).

Assuming at least a partially affirmative answer to the substantive question, the case also presents the procedural question whether on this record such rights as the promisee/shareholder may have may be adjudicated summarily consistent with Rule 56, Miss.R.Civ.P.

Substantively, we recognize as valid in this state a rule of law which affords a promisee/shareholder a right to recover foreseeable damages sustained by him or her individually flowing from the promis- or’s breach of duties imposed upon that promisor and owing to the promisee/share-holder in his or her individual capacity.

Procedurally, we hold that the Circuit Court erred when it granted summary judgment in favor of the promisor dismissing in their entirety the prom-isee/shareholder’s claims. We reverse in part and remand for trial.

II.

A.

The cast of characters is as follows:

(1) James D. Vickers is an adult resident citizen of the Greenville, Mississippi/Lake Village, Arkansas area. He was the original Plaintiff below and is one of the Appellants here. He is the “promisee/shareholder” and is sometimes referred to below merely as “Vickers”.

(2) William Thomas, Jr., is an adult resident citizen of Greenville, Mississippi, who is the lawfully appointed, qualified and serving Trustee of the Estate of James D. Vickers, Bankrupt. Trustee Thomas was a Plaintiff below and is an Appellant here under authority of an order of the United States Bankruptcy Court for the Northern District of Mississippi filed February 9, 1981, in In Re James Dwight Vickers, No. GBK 78-00147.

(3) First Mississippi National Bank is a banking association organized, chartered and existing under the laws of the United States and having its principal place of business in Hattiesburg, Mississippi. The Bank was the sole Defendant below and is the Appellee here. In much of the discussion that follows, the Bank is the promisor.

(4) Toche Enterprises, Inc. and Jays & W, Inc. are two separate corporations each of which, at all times relevant hereto, was chartered and existing under the laws of this state. Neither of these corporations is a formal party in this action. Collectively, they are referred to below as “Toche”. Toche is the beneficiary in the third party beneficiary setting discussed below.

B.

The facts of this case — and the inferences therefrom and interpretations to be made thereof and ultimately the legal conclusions to be drawn therefrom — are hotly disputed. Because of the present posture of the matter, however, summary judgment having been granted in favor of the Bank and against Vickers, we here state the facts in a light reasonably favorable to Vickers.

In the year 1975, Toche operated a marine construction and repair facility in Ocean Springs, Mississippi. All stock in the Toche corporation was owned by four members of the Toche family. As 1975 drew to a close, the corporation was indebted to First Mississippi National Bank for over $800,000 and its payments were in arrears.

James D. Vickers is a member of a family with substantial experience in the marine construction business, operating primarily through Greenville Shipbuilding Corporation based in Greenville, Mississippi. In December of 1975 and early January of 1976, officers of the Bank engaged Vickers in negotiations regarding his possible acquisition of the Toche facility in Ocean Springs. These negotiations culminated on January 19, 1976, with the execution of a written agreement between (1) James D. Vickers, (2) First Mississippi National Bank and (3) the four members of the Toche family in their individual capacities as stockholders. Toche, the corporation, was not a party to the agreement, although it was obviously a third party beneficiary thereof.

The agreement of January 19, 1976, provided, inter alia:

(1) that the Toche family members should transfer ownership of all stock to Vickers;

(2) that the Bank would loan the Toche Corporation $1,435,000 at 7% per annum repayable over 24 months in four semi-annual payments;

(3) that certain indebtedness — including the over $800,000 owed by Toche to the Bank — would be extinguished (“refinanced”) with the loan proceeds;

(4) that Vickers would personally guarantee that portion of the loan from Bank to Toche which constituted new money (approximately $500,000) and further guarantee any other sums advanced by the bank to Toche;

(5) that, in addition, the Bank would •provide Toche a line of credit up to $3,000,000.00 for interim construction financing; and

(6) that in the event of the Bank’s foreclosure upon Toche collateral, such proceeds would be applied first to that part of the indebtedness guaranteed by Vickers.

Immediately thereafter, Vickers went to Ocean Springs and took over the operation of the Toche marine construction facility. He caused Toche to begin purchases of steel, welding machines and other materials necessary for the construction of vessels. In March of 1976, through Vickers’ efforts Toche had obtained contracts for the construction of marine hulls and began this work. It is in this connection that one of Vickers’ primary complaints arises, to wit: the alleged failure of the Bank to provide Toche with interim ship construction financing. Again because of the summary judgment posture of the case, the rest of the story will be told in Vickers’ own words as they appear in his affidavit of June 22, 1982.

Paragraphs 3 and 9 of the January 19, 1976, contract state that Defendant would provide Toche with up to $3,000,-000.00 in interim financing. These funds are used in the shipbuilding industry to finance vessels while they are under construction. A shipyard cannot operate if no interim financing is available. Thus, without this portion of the January 19, 1976, contract, the remainder would have been worthless to Toche and to me. I would not have entered into the January 19, 1976, Agreement if Paragraph 9 had not been included in the Agreement.
From the time the contract was executed until April, I repeatedly requested First Mississippi National Bank to provide Toche and me with the promised $3,000,000.00 in interim construction funding. First Mississippi National Bank, speaking through Gray Slay, told me that the Bank was engaged in completing the paperwork and in contacting and negotiating with correspondent banks. He promised me that it would be only a short time before Toche and I could obtain the interim financing.
In the meantime, I operated Toche with my own personal funds and out of capital funds, as distinguished from interim financing which was to be furnished by the Defendant. Although I do not at this time have an exact accounting of how much money I ultimately put into Toche, to my best information and belief, the sum is approximately $1,000,000.00.
Also during this time, I attempted to obtain interim financing on my own so that Toche could commence construction of vessels. I was unable to obtain interim construction money because the Defendant had all of the assets of Toche, including my stock, encumbered.
In March, 1976, I entered into two construction contracts, for Hulls 101 and 102, on the strength of Defendant’s commitment to provide Toche and me with interim financing. I was to receive approximately $3,000,000.00 for this construction. I commenced work on these vessels, using my personal money, inasmuch as First Mississippi National Bank had not provided me with any interim financing.
In April or May of 1976, I once again called First Mississippi National Bank to inquire about the interim financing. Gray Slay told me that the bank could not lend Toche or me any interim financing funds because to do so would cause the bank to exceed its legal lending limit to a single borrower.
The following day, I traveled to Green-ville to consult with my attorney, Philip Terney. Mr. Terney telephoned Defendant, speaking with William A. Pittman and Gray Slay, to inquire about the interim financing. With me listening to both sides of the conversation, Pittman and Slay told us that the Bank was not obligated to provide Toche or me with interim financing because of an agreement we had signed. Defendant ultimately produced an agreement which is a copy of the January 19, agreement except that Paragraph 9, which required Defendant to provide $3,000,000.00 in interim financing, had been crossed out and initialed by only by [sic] Pittman.
In May, I shut down the Toche boat yard. Toche was unable to continue operations for lack of interim financing. At about this same time, I had negotiated construction deals for several supply boats which I could not complete without construction financing. Ultimately, Greenville Shipbuilding Corporation built these boats because Toche was unable to obtain interim financing elsewhere.
From the time that I entered into this contract until October, 1976, and lasting thereafter, I approached numerous banks to attempt to obtain interim financing to construct boats. These banks included First National Bank of Greenville, Mississippi; of New Orleans, Louisiana; Colonial Bank of New Orleans, Louisiana; Greyhound Leasing Corporation of Chicago; Commercial Bank and Trust of Metarie, [sic] Louisiana; CitiCorp of New York; a large bank in Mobile; The Mississippi Bank; First National Bank of America of California; The Crocker Bank of California; The Bank of England; a Japanese bank; The Ranier Bank of Seattle, Washington; and a bank in Little Rock, Arkansas. I was unable to obtain interim construction funding from any of these banks because the Defendant Bank had a lien on all the assets of Toche, including my stock in the corporation.
Thus, in October, 1976, Toche had been shut down for months, no interim financing was available despite my best efforts to obtain it, and my personal fortune was exhausted. At that time, my economic situation and that of Toche left me with no alternative but yield to the economic threats and coercion of the Defendant Bank and sign the Agreement dated October 6, 1976[] This Agreement was forced upon me and Toche by Defendant, and represented the only hope I had of operating the shipyard long enough to get my personal money back.
Defendant then undertook to lend interim construction funds directly to those who contracted with Toche for ship construction, rather than to Toche, a mechanism Defendant believed would alleviate legal lending limit restrictions.
Despite the interim financing which then became available, the financial situation of the shipyard was no longer viable. In 1978, Toche was forced into involuntary bankruptcy. As a result of my guarantees of the debts of Toche, I was also forced to take bankruptcy.

C.

On April 12, 1982, Vickers and his Trustee in Bankruptcy commenced this action by filing their complaint in the Circuit Court of Forrest County, Mississippi, naming the Bank as a Defendant. In his complaint Vickers demanded damages of and from the Bank for what amounts to all losses he sustained as a result of the Bank’s alleged breach of certain contractual obligations alleged to exist by virtue of the January 19, 1976, agreement, a copy of which was attached to the complaint.

The Bank did not answer but rather on May 18, 1982, filed a motion to dismiss, Rule 12(b)(6), Miss.R.Civ.P., or, in the alternative, for summary judgment, Rule 56, Miss.R.Civ.P., asserting, essentially, three grounds, to wit: Vickers’ alleged lack of standing, the failure of the complaint to state a claim upon which relief can be granted, and judicial estoppel. The motion was heard on affidavits submitted by the respective parties and memorandum briefs filed by their counsel. On July 16, 1982, the Circuit Court adjudged that there were no genuine issues of material fact and that First Mississippi National Bank was entitled to judgment as a matter of law and, accordingly, entered final judgment in favor of the Bank and against Vickers and his trustee. En route, the Circuit Court stated:

The decisive issue is plaintiff Vickers’ status to bring this action for breach of contract.
These facts are not in issue: There are two written agreements which control the obligations of the defendant in the premises. (The one dated January 19, 1976, Vickers claims is controlling. Defendant claims the subsequent agreement dated October 6, 1976, supersedes and controls. However, defendant claims Vickers is not a principal party to either agreement, and therefore, without status to bring this action.) No demand or claim has been made by defendant against plaintiffs under either agreement, and defendant has affirmatively waived any such claim. Defendant and Joseph A. Toche, Sr., John Anthony Toche, William R. Toche, Sr., and John Adaulph Toche, sole owners of all capital stock of Toche Enterprises, Inc., and Jay’s & W., Inc., are principal parties to the January 1976 agreement. Toche Enterprises, Inc., and Jay’s & W., Inc., (both Mississippi corporations) and defendant are principal parties to the October 1976 agreement.
It is determined that Vickers is a guarantor or secondary party in both agreements. The corporation, not Vickers, has the cause of action.
The law of this state controlling in these facts is clearly stated in Bruno v. Southeastern Services, Inc., Miss., 385 So.2d 620 (1980). In Bruno the Court denied to plaintiff, the sole stockholder, a cause of action for damages for alleged breach of contract to the corporation. The Mississippi Court held:
“... that the basis of the suit in this case is wrong to the corporation and plaintiff may not bring suit in his individual capacity to redress a wrong to the corporation. The cause of action belongs solely to the corporate entity, Bruneau’s, Inc., and may be asserted only by the corporation itself or by plaintiff in a representative capacity in the form of a shareholder derivative suit. The corporation is an indispensable party to such an action ...”
The rationale for the Mississippi rule is that (1) the corporation is a separate entity and the shareholder does not have a legal interest in its property; (2) multiplicity of suits by individual shareholders will be avoided; (3) impairment to creditors’ rights will be avoided since the recovery will belong to the corporation, and (4) corporate recovery benefits all shareholders equally.
IT IS THEREFORE, ORDERED AND ADJUDGED that defendant’s motion for summary judgment is granted and plaintiffs’ complaint is dismissed at cost of plaintiffs.

Vickers and his Trustee have timely perfected their appeal to this Court. The matter has been competently briefed and argued and is now ripe for decision.

III.

The procedure whereby in a civil action final judgment may be entered summarily and without plenary trial on the merits has been a part of our law since January 1, 1982. Rule 56, Miss.R.Civ.P. Its contours and nuances are becoming familiar and established. See Brown v. Credit Center, Inc., 444 So.2d 358 (Miss.1983); Bourn v. Tomlinson Interests, Inc., 456 So.2d 747 (Miss.1984); Biggers v. Fox, 456 So.2d 761 (Miss.1984); Dethlefs v. Beau Maison Development Corporation, 458 So.2d 714 (Miss.1984); Dennis v. Searle, 457 So.2d 941 (Miss.1984); Pearl River County Board of Supervisors v. South East Collections, Inc., 459 So.2d 783 (Miss.1984).

For present purposes, we need keep well in mind the admonition of the Advisory Committee in its Comment to Rule 56:

A motion for summary judgment lies only where there is no genuine issue of material fact; summary judgment is not a substitute for trial of disputed fact issues. Accordingly, the court cannot try issues of fact on a Rule 56 motion; it may only determine whether there are issues [of fact] to be tried.

In Brown v. Credit Center, Inc., we stated:

The trial court must review carefully all of the evidentiary matters before it — admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If in this view the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Otherwise the motion should be denied.
444 So.2d at 362. See also Dennis v. Searle, 457 So.2d at 944.

Not all disputed issues of fact may be sufficient to defeat a motion for summary judgment or to require trial on the merits; only material issues of fact. Put another way, if, viewing the evidence in the light most favorable to the party against whom the motion has been made, that party’s claim or defense still fails as a matter of law, summary judgment generally ought to be granted, even though there may be hot disputes regarding non-material facts. As will be apparent, this principle has importance with respect to a part of our decision in this case.

Another principle of relevance here is that found in Rule 56(d), Miss.R.Civ.P., to the effect that the Court has authority where appropriate to enter a partial summary judgment on those issues where there are no material disputes of fact and where the moving party is entitled to judgment as a matter of law, leaving the remainder of the case for trial. Brown v. Credit Center, Inc., 444 So.2d at 363; Dennis v. Searle, 457 So.2d at 944. In Brown we stated:

Partial summary judgments when granted have the effect of removing from trial issues that ought not be there. The courts and litigants are thus free to concentrate on the real to the exclusion of the pretended.
444 So.2d at 363.

Again, as will be apparent, this principle has relevance to the case at bar.

Finally, Vickers reminds us of his right to trial by jury secured by virtue of the constitution of this state. In light of Miss. Const. Art. Ill § 31 (1890) wherein litigants are vested with that right, Brown correctly admonishes that

“Trial judges must be sensitive to the notion that summary judgment may never be granted in derogation of party’s constitutional right to trial by jury.” —444 So.2d at 362.

On the other hand, there is no denial of that right where under the facts tendered the moving party is entitled to judgment as a matter of law. In such instances, granting the motion no more denies a litigant his right to trial by jury than does the sustaining of a demurrer or granting of a peremptory instruction under our former practice.

IV.

A.

The Circuit Court’s memorandum opinion sustaining the motion for summary judgment makes clear that it is based upon the notion that Vickers has no standing to sue. As we perceive it, the Circuit Court’s opinion does not question that the complaint states a claim against the Bank upon which relief can be granted (to employ the parlance of Rule 12(b)(6), Miss.R.Civ.P.). It merely holds that this claim may be asserted only by the corporation, Toche, and that Vickers is a “secondary party” with no independent standing to sue.

The Circuit Court relies on Bruno v. Southeastern Services, Inc., 385 So.2d 620 (Miss.1980) which squarely holds that, where the basis of the suit is a wrong to the corporation,

“plaintiff [stockholder] may not bring suit in his individual capacity to redress a wrong to the corporation.”
385 So.2d at 622.

The Bruno opinion further states that

“An action to redress injuries to a corporation, whether arising in contract or in tort, cannot be maintained by a stockholder in his own name, but must be brought by the corporation because the action belongs to the corporation and not the individual stockholders whose rights are merely derivative. The rule applies even though the complaining stockholder owns all or substantially all of the stock of the corporation.”
385 So.2d at 622.

The facial similarities of the case at bar to Bruno become reality when we remember that Vickers has sued for recovery of “damages from the loss of income from and the profits of Toche Enterprises, Inc., the loss of his investments, loss of sums due to the United States Internal Revenue Service, ...” Under the rule in Bruno these are in law claims of the corporation for damage to the corporation with respect to which redress must be sought only in a stockholder’s derivative suit. Bruno v. Southeastern Services, Inc., 385 So.2d at 622. Vickers has no standing to assert these claims in his individual capacity. To that extent, the circuit judge was correct and the portion of his judgment which is sustained by the rule in Bruno must be affirmed. Indeed, counsel for Vickers conceded the point at oral argument.

B.

While it includes a Bruno-type claim, the Vickers complaint goes far beyond. Significant for present purposes are the allegations that the Bank had substantial contractual obligations to Vickers individually, as distinguished from those obviously running in favor of the corporation. The alleged breach of obligations said to be owing to Vickers individually forms a part of the basis for this action. A review of the agreement of January 19, 1976, suggests that James D. Vickers is a party to it in his individual capacity and that the Bank undertook substantial obligations owing to Vickers, although for the benefit of the corporation. Moreover, in addition to the Bruno-type damages sought, Vickers and his trustee also claim that Vickers, individually and not just derivatively, has been damaged, and recovery is sought therefor.

Vickers’ primary claim over and above those precluded under Bruno is that the Bank breached its obligations to provide interim financing for the construction of marine vessels. To be sure, this is an obligation the beneficiary of which was the corporation. Vickers makes clear in his affidavit, however, the importance of interim financing in the ship construction business and the fact that he would never have become involved in Toche or undertaken any of the obligations imposed upon him personally by the agreement of January 19, 1976, had the Bank not made a commitment for interim construction financing. According to Vickers, having cast his lot with Toche, he had no choice, when the Bank failed to provide the necessary interim construction financing, but to invest his own money. As set forth in his affidavit, Vick-ers alleges that he put close to a million dollars of his own money into the business as a proximate result of the Bank’s failure to honor obligations said to have been imposed upon it by paragraph 9 of the January, 1976, agreement. That money cannot now be salvaged. In addition, Vickers claims that he incurred substantial expenses in searching for interim financing to replace that originally promised but subsequently denied by the Bank.

Without doubt, we are here considering an obligation on the part of the Bank owed to and enforceable by Vickers individually. Back in the Spring of 1976, he could have brought an action for specific performance. There is no reason on principle why he should not now be allowed to prosecute an action for foreseeable damages he has sustained as a proximate result of the breach by the Bank of the obligations it had undertaken in paragraph 9 of the agreement. We certainly cannot say on this record that damages of this nature were not reasonably foreseeable by the Bank back on January 19, 1976, as likely to result if it failed to perform its obligation to provide interim construction financing. See Wright v. Stevens, 445 So.2d 791, 798 (Miss.1984).

Fundamentally, Vickers asserts a claim predicated upon his contract with the Bank. That contract contains a feature which classifies it as a third party beneficiary contract. In the present context, Bank (prom-isor) has made promises to Vickers (prom-isee) for the benefit of Toche (beneficiary).

No one would deny the promisee the right to seek specific performance in the event of the promisor’s breach of obligations owing to the beneficiary. Restatement of Contracts 2d § 307 (1979). Our perusal of the treatises reveals a near unanimous view that a promisee may sue a breaching promisor for damages as well. Farnsworth, Contracts 735-736 (1982); Calamari and Perillo, Contracts 629-630 (2d ed. 1977); 4 Corbin, Contracts 237-244 (1951); 2 Williston, Law of Contracts 1131-1134 (rev.ed.1936). Professor Farns-worth’s statement is representative:

The promisee (B), as well as the beneficiary (C), has a right against the promis- or (A). In principle, that right is also enforceable by an action for damages or specific performance to the same extent as are other contract rights.
—Farnsworth, supra, at 736.

The effect of the lower court’s decision— and of the argument advanced here by the Bank — is that Bruno alters this general rule where the promisee is a shareholder in the beneficiary corporation. What — and all — Bruno holds, however, is that a prom-isee plaintiff has no standing to sue and recover from a promisor where all damages claimed were in fact sustained by the corporation beneficiary and where the losses incurred by the promisee were wholly derivative from the losses to the corporation. As stated, Bruno, announces a salutary rule. It protects defendant promisor from a multiplicity of suits and promotes the efficient use of judicial resources. Put another way, to the extent that a shareholder may under our law bring a derivative action, he has no standing to sue in his own name.

Across the country there exists a well-recognized complement to Bruno which implements in this context the general rule taken from the treatises cited above. The Fifth Circuit in Empire Life Insurance Co. of America v. Valdak Corp., 468 F.2d 330 (5th Cir.1972) put it this way

“Where the act complained of ... [gives rise to] not only a cause of action in favor of the corporation but also ... [gives rise to] a cause of action in favor of the stockholder, as an individual, for violation of a duty owing directly to him, the stockholder may bring suit as an individual.” 468 F.2d at 335 [emphasis in original text]

Other authorities to like effect include: Buschmann v. Professional Men's Association, 405 F.2d 659, 663 (7th Cir.1969); Dann v. Studebaker-Packard Corporation, 288 F.2d 201, 211 (6th Cir.1961); Eden v. Miller, 37 F.2d 8, 9-10 (2d Cir. 1930); and Banker’s Trust Co. v. Steenbum, 95 Misc. 2d 967, 409 N.Y. S.2d 51, 63-65 (1978).

One leading case with somewhat analogous facts is the Second Circuit’s decision in Eden v. Miller. There the complaint alleged that the promisee plaintiffs (individuals) entered into an oral agreement with the promisor defendant on terms which provided that a freight forwarding corporation, the beneficiary, was to be organized, financed and operated. The plaintiffs agreed to and did organize the corporation with $40,000 in cash as working capital and entered into its employ. They asserted their best efforts to its management and operation. The defendant agreed to provide the corporation with $60,000 in cash as working capital and to use his best efforts to secure business for it. The plaintiffs by their complaint alleged a breach of contract and damages to them as individuals. The defendant moved to dismiss on the grounds that the plaintiffs, as individuals, stated no cause of action and that such cause of action, if it existed, belonged to the corporation. The motion to dismiss was granted by the district court. In reversing, the Court of Appeals said:

“We will assume for the purposes of this case, without deciding, that the corporation has such right of action, for the recovery of what damages, if any, it has sustained. We are concerned now only with the right of the plaintiffs, as prom-isees, to maintain an action against the defendant, as promisor, to recover their, not the corporation’s, damages, where the promise is for the benefit both of the plaintiffs and of a third party, who may or may not sue”.
“Because they performed their promises by organizing the corporation, taking employment and making an investment in it, in reliance upon the now broken promise of the defendant to give to the business both financial and personal aid, they claimed to have been damaged. For such damage as they can prove they may recover, regardless of any cause of action the corporation may have against the defendant”. 37 F.2d at 9-10 (emphasis added).

The rule derived from the cases cited above is logically consistent with Bruno. The apparent rationale underlying it is sound. This rule and its rationale undergird today’s decision not because the courts from which they emanate have any authority in this state but because sound legal principles and reasoning have power wherever they are encountered without regard to origin. Berkline Corp. v. Bank of Mississippi, 453 So.2d 699, 701 (Miss.1984).

We thus recognize as valid in Mississippi a rule providing that a third party beneficiary contract, wherein the promisee is a shareholder of the beneficiary corporation, may vest in the promisee rights against the promisor enforceable in a direct action by the promisee for damages. Where the promisor's act(s) or omission(s) constitute(s) a substantial breach of a duty imposed by the contract upon the promisor and correlatively a right held by the prom-isee, as an individual and not in his shareholder capacity, the promisee may in addition to any other remedies available in law recover of and from the promisor such reasonably foreseeable damages as the promisee may have sustained as a proximate result of the breach. Restatement of Contracts 2d §§ 346 et seq. (1979); Wright v. Stevens, 445 So.2d 791, 797-798 (Miss. 1984). The promisee has standing to maintain any such action and enforce any such direct rights (as distinguished from derivative rights) in his individual capacity and in his own name. This is so even though the same act(s) or omission(s) may also give rise to a claim by the beneficiary against the promisor although, of course, no double recovery will be allowed.

V.

The judgment summarily entered by the Circuit Judge must in significant part be reversed. The Circuit Judge was wrong when he held that on his complaint Vickers had no standing to sue with respect to the non-Bruno claims. Indeed, he was wrong in trying to force the entire complaint into the Bruno straightjacket.

Beyond that, there are genuine and substantial issues of material fact intertwined with the question whether the January 19, 1976, agreement imposed binding and subsisting duties upon the Bank, and thus vested rights in Vickers. If these matters be established in the affirmative, there remain on this record genuine issues of material fact which must be resolved before there can be a judicial determination of the scope and contours of those correlative duties and rights. Finally, of course, there are substantial fact questions suggested by this record on the matters of causation, forseeability and damages.

In this context, the judgment entered summarily below is affirmed to the extent, and only to the extent that, it precludes Vickers and his Trustee prosecuting an action for damages suffered (a) by the corporation and (b) by Vickers derivatively in his capacity as a shareholder of the corporation. To this extent, the judgment entered in the Bank’s favor below is converted into a partial summary judgment. Rule 56(d), Miss.R.Civ.P.

The judgment below is reversed insofar as it precludes Vickers and his Trustee from seeking recovery of damages, if any, sustained by Vickers in his individual capacity as a proximate result of the Bank’s breach, if any, of a valid and subsisting duty or duties, if any, owed by Bank to Vickers individually. The case is remanded for plenary trial on the merits of the issues just stated and for such further proceedings as may be appropriate not inconsistent with this opinion.

VI.

A postscript. The facts stated here have been slanted in Vickers’ favor. This is both necessary and proper in that summary judgment was entered against him. No fact stated here should by virtue of this opinion be taken as established for purposes of trial on remand.

Indeed, all are enjoined to discern from these pages not so much as a whisper of a suggestion how any question of evidentiary or ultimate fact ought to be resolved, or, for that matter, what final judgment ought ultimately to be entered. Such are for trial on the merits.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

PATTERSON, C.J., WALKER and ROY NOBLE LEE, P.JJ., and BOWLING, HAWKINS, DAN M. LEE, PRATHER and SULLIVAN, JJ., concur.

      , These facts are drawn from the uncontrovert-ed allegation of Vickers’ complaint, from his affidavit made upon personal knowledge on June 22, 1982, Rule 56(e), Miss.R.Civ.P., and upon concessions made by First Mississippi National Bank in its version of the facts.

      . The Bank contends that the October 6 agreement superseded the one made January 19. Vickers argues several theories as to why the October 6 agreement does not control. We regard this as a matter involving substantial factual components hotly and genuinely disputed, not appropriate for resolution via summary judgment.


text:
    Thomas James MERRILL v. STATE of Mississippi.
    No. 55138.
    Supreme Court of Mississippi.
    Nov. 7, 1984.
    Rehearing Denied Dec. 5, 1984.
    Jon A. Swartzfager, Laurel, for appellant.
    Edwin Lloyd Pittman, Atty. Gen. by Catherine Walker Underwood, Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Jones County; James D. Hester, Judge.

Before WALKER, P.J., and PRATHER and SULLIVAN, JJ, and SUGG, Retired Supreme Court Justice.

AFFIRMED.

ROY NOBLE LEE, P.J., and BOWLING, HAWKINS, DAN M. LEE and ROBERTSON, JJ., concur.

PATTERSON, C.J., not participating.


text:
    Walter ANDERTON v. CITY OF JACKSON.
    No. 55168.
    Supreme Court of Mississippi.
    Nov. 7, 1984.
    Robert W. Sneed, Jackson, for appellant.
    James W. Newman, III, Edwin Lloyd Pittman, Atty. Gen., Wayne Snuggs, Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; Reuben Anderson, Judge.

Before WALKER, P.J., and HAWKINS and PRATHER, JJ.

AFFIRMED.


text:
    Gary Jerome LARKINS v. STATE of Mississippi.
    No. 55172.
    Supreme Court of Mississippi.
    Nov. 7, 1984.
    John Cotter, Pascagoula, for appellant.
    Edwin Lloyd Pittman, Atty. Gen. by Henry C. Clay, III, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Jackson County; Darwin M. Maples, Judge.

Before ROY NOBLE LEE, P.J., and HAWKINS and SULLIVAN, JJ.

AFFIRMED.


author: ROY NOBLE LEE, Presiding Justice,

text:
    FARRISH GRAVEL COMPANY, INC. and Phillips Contracting Company, Inc. v. MISSISSIPPI STATE HIGHWAY COMMISSION.
    No. 54364.
    Supreme Court of Mississippi.
    Nov. 7, 1984.
    Rehearing Denied Nov. 28, 1984.

      Vardaman S. Dunn, Cox & Dunn, Jackson, for appellants.
    James W. Nobles, Jr., Bill Allain, Atty. Gen., P.O. Gibson, Jr., Asst. Atty. Gen., Walter E. Wood, Clinton A. Davis, Jr., Jackson, for appellee.
    Before ROY NOBLE LEE, P.J., and DAN M. LEE and ROBERTSON, JJ.
   ROY NOBLE LEE, Presiding Justice,

for the Court:

Farrish Gravel Company, Inc. (Farrish) and Phillips Contracting Company, Inc. (Phillips) filed suit in the First Judicial District of Hinds County, against the Mississippi State Highway Commission [Commission] seeking money judgments for adjustments in highway contracts and seeking to enjoin the Commission from restricting the price adjustment program under highway contracts to the time period prior to the beginning of overtime on the respective projects. The cases were consolidated for trial, the chancellor found against both Farrish and Phillips and dismissed the complaints. Farrish and Phillips appeal here and assign three (3) errors in the trial below.

The central issue in this case involves the interpretation and applicability of Laws of 1975, Chapter 470 [an amendment to Mississippi Code Annotated § 31-7-39 (1972)] to contracts between the Commission and road contractors. The relevant part of the amendment follows:

Provided further, any public authority authorized to enter into contracts for the construction, maintenance, surfacing or repair of highways, roads or streets, including any department or agency of the State of Mississippi and its political subdivisions, may include in its bid proposal and contract documents a price adjustment clause with relation to the cost to the contractor, including taxes, based upon an industry wide cost index, of petroleum products including asphalt used in the performance or execution of the contract or in the production or manufacture of materials for use in such performance; such industry wide cost index to be established and published monthly by the State Highway Department with a copy thereof to be mailed to the clerks of the governing authority of each municipality and the clerks of each board of supervisors throughout the state. The price adjustment clause shall be based on such cost of said petroleum products only and shall not include any additional profit or overhead as part of the adjustment. The bid proposals or document contract shall contain the basis and methods of adjusting unit prices for the change in such cost of said petroleum products.

After enactment of the amendment, the Commission adopted a price adjustment program and contracts stated in detail the basis and method of adjusting unit prices for changes in the cost of petroleum products necessarily consumed in the road building. The bid proposals and contracts prepared by personnel of the Mississippi State Highway Department provided for a price adjustment clause “based upon an industry-wide cost index, of petroleum products including asphalt used in the performance or execution of the contract.” The personnel of the Mississippi State Highway Department inserted a restrictive paragraph in the special contract provision which follows:

Adjustments herein provided shall not apply to fuels consumed or materials incorporated into the work during any monthly estimate period falling wholly after the expiration of contract time as determined by checked final quantities.

The appellants contend that use of the quoted restrictive paragraph is not within the authority conferred by the Legislature, and its use violates the intent of the Legislature as well as the letter of the law, and creates a second penalty on top of liquidated damages. Further, that the Commission never intended to restrict the price adjustment allowance to eliminate periods of performance in overtime and, when the attention of the Commission was called to the restrictive paragraph in the contract documents, the same was eliminated and stricken from the contract documents in May, 1980. In the alternative, appellants argue, if they are mistaken, then the restriction should be construed to exclude only increases in the price of petroleum products above the price prevailing on the date that the contract time allowance for completion expired, free of liquidated damages.

The Commission vigorously defends its position that the chancellor correctly decided the questions in dismissing appellant’s bills of complaint and strongly argue that the decree entered in the lower court should be affirmed.

On May 5, 1980, the restrictive provision was removed from contract by order of the Commission and was intended by the Commissioners to apply both in the future and to those contracts which already contained the provision. On April 28, 1981, the Commission adopted a new provision, viz, “After the expiration of contract time, including all authorized extensions, adjustments will be computed using fuel and material prices that are in effect at the expiration of contract time.” On that date, Parrish and Phillips filed their suits for $648,659.39, and $120,249.96, respectively.

I.

THE RESTRICTIVE PARAGRAPH WAS UNAUTHORIZED BY THE ENABLING STATUTE AND IS INVALID AND UNENFORCEABLE.

Appellants contend that the Mississippi State Highway Commission was not required by statute to include the petroleum adjustment in its contracts and, since the Commission made the decision to do so, the petroleum adjustment could not be limited just to the work done during the contract period. The Commission contends that the determination of how to implement the petroleum adjustment clause was a function within the policy-making powers of the Commission. We recognize that government agencies have only such powers that are expressly granted to them, or necessarily implied in their grant of authority. Any acts which are not so authorized are void. Strong v. Bostick, 420 So.2d 1356 (Miss.1982); Golding v. Salter, 234 Miss. 567, 107 So.2d 348 (1958).

We have not been cited cases by the parties dealing with the petroleum adjustment clause and the Commission’s implementation of it. In his opinion, the chancellor said:

The Highway Department had written the provision into the fuel adjustment portion or provisions of its contracts without any stated authority in the minutes of the Commission a clause which provided that the fuel adjustment provisions would not be applicable to the period of time falling after the stated completion date of the contract. In the case at bar, as I understand the evidence, the price of fuels continued to go up after the date of the bid letting or the acceptance by the Highway Department, and these that are involved here went into overtime or past the contract due date. The provision in the contract had provided that there would be no price escalation or des-escalation [sic] up or down on the fuels for the period beyond the date specified for the completion of the contract. These claims were for the period of time which did go past completion dates. The testimony was, then, that the clause eliminating the fuel adjustment for the period of time falling past the contract date was eliminated itself from the Highway Department contracts, again without any written minutes authorizing that. Later, the fuel adjustment clause was, to a modified extent, put back in, pegging the price of fuels as of the time that the contract expired or the time for completion of the contract expired, no matter how long it took to complete it thereafter.
It is the opinion of the Court that the Highway Department had the right to put the clause which eliminated fuel escalation for the period after the contract completion date into the contracts as being under the permissive authority granted by the Legislature in I believe the ’75 Act. The Court is not saying it thinks that was a wise decision. I don’t know that it is required to be wise or that everybody agrees that it is. I have not really understood the objection to the Highway Department, that the Highway Department has had, to the fuel escalation clause as anything other than really what amounts to a further penalty, but then I think they had the right to do it. If the fuel escalation clause is not properly drawn, then it ought to be redrawn, the whole fuel escalation, so as to do what was intended, and that was simply to vary the price of the contract to fit the currect [sic] price of fuel. That way, I certainly agree with Mr. Dunn that it was not designed to be a profit or loss of profit in that sense, but it was within the scope of authority, I think, of the Highway Commission to do. It was put into the contracts. The contracts were examined. Pre-letting sessions were held in which no one protested that. All of the contractors knew or should have known what the provisions were. They all accepted that, and as Mr. Dunn pointed out, the price could have gone down as well as up, and if it had gone down, then the Highway Department would in the view of this Court have been required to take that into just as much consideration as they would if the price went up, since it was a contractual part of the contract.

Appellants cite Broadhead v. State Tax Commission, 238 Miss. 239, 117 So.2d 881 (1960), for the proposition that the determination of the amount of a penalty cannot be delegated to an administrative agency. However, Broadhead involved the authority of the Tax Commission to levy a penalty ranging from ten percent (10%) to twenty-five percent (25%) for the failure to pay income taxes. The petroleum adjustment restriction is not a penalty and the present case involves contracts not violation of the income tax statute. Broadhead is not authority for the proposition here.

Witnesses for appellants, principally contractors, were frank to state that, if they felt they could not complete a job on time, they would not bid on it.

We are of the opinion that there is no merit in this assignment.

II.

THE PENALTY OF THE RESTRICTIVE PARAGRAPH, IF NOT VOID, WAS REPEALED RETROACTIVELY.

The facts of this case are practically undisputed. On May 5, 1980, the Commissioners attempted to delete the restriction from the contracts. On April 28, 1981, they attempted to modify the provision so that the petroleum adjustment would be paid, but only at the rate set on the completion date. Appellee argues that the Commissioners had no authority to make such a substantial change in the contract once construction had begun.

Section 96, Miss. Const. 1890, states:

The Legislature shall never grant extra compensation, fee, or allowance, to any public officer, agent, servant, or contractor, after service rendered or contract made, nor authorize payment, or part payment, of any claim under any contract not authorized by law; but appropriations may be made for expenditures in repelling invasion, preventing or suppressing insurrections.

The above section is controlling on the Legislature and any state agency created by the Legislature. In Clark v. Miller, 142 Miss. 123, 105 So. 502 (1925), contractors had agreed to build a levee but with increased price of labor and materials due to World War I, they claimed it would be difficult to complete. They agreed to work as long as possible, but stated it would eventually bankrupt them. Thereupon, the Levee Board agreed to pay extra compensation to complete the project. Although the Court sympathized with the contractor, such action was held to be a violation of Section 96, Miss. Const. 1890.

If such change in the contract were permitted, it would be contrary to the purpose of competitive bidding. All the parties had access to the contracts before making their bids. The appellants admitted that they either knew about the restrictive clause or would have known had they read that part of the contract. All bidders based their bid on the original proposal. If the contract were changed subsequent to the bidding so that Farrish and Phillips would receive the large amounts sued for in this case, such would be unfair and discriminatory to the other bidders, who considered that restrictive provision. If such were permitted, government officials could grant substantial benefits to favored contractors. If the contractors knew in advance that they could obtain modifications of the contract to their benefit, they would have a clear advantage over other competitors.

We are of the opinion that there is no merit in Assignment II.

III.

THE RESTRICTIVE CLAUSE WAS NOT VOLUNTARILY INCLUDED BY THE CONTRACTORS.

Appellants argue that they did not voluntarily enter into the contracts, reasoning that the Mississippi State Highway Commission prepares the project specifications and the contract; the contract and the specifications are not open to negotiations; they are in the business of constructing roads in Mississippi; their main customer is the State and they must, therefore, bid on the projects as the State sets forth, or go out of business.

The simple answer to such argument is that no one forced the appellants to go into business. When the State opens a project for bids, a contractor decides what the project is worth. If he cannot make money on it, he does not have to bid on it and good business judgment would dictate that he not enter a bid. If none of the contractors bid, the State of Mississippi must take such action as is necessary to obtain bids, or stop building roads. The reasoning on this point is not sound, and we reject it.

While sympathy may be extended to the contractors who lost large sums of money in failing to perform those contracts, the blame must fall upon them. Apparently, before submitting their bids neither these contractors nor any other contractors contacted or approached the Commission about modifying the restrictive provision. Only after the contracts had overrun and the contractors had incurred losses did they approach the Commission for help. The time was too late. Action should have been taken before the bids were submitted. If the courts should sustain the position of the appellants, then there would be a new day in Mississippi contract law and chaos in the interpretation and enforcement of contracts.

The decree of the lower court is affirmed.

AFFIRMED.

PATTERSON, C.J., WALKER, P.J., and BOWLING, HAWKINS, DAN M. LEE, PRATHER, ROBERTSON and SULLIVAN, JJ., concur.


author: PER CURIAM. ALDERMAN, Justice,

text:
    David CERF, Appellant, v. STATE of Florida, Appellee.
    No. 64183.
    Supreme Court of Florida.
    Sept. 6, 1984.
    Rehearing Denied Dec. 6, 1984.
    David F. Cerf, Jr., in pro. per.
    Janet Reno, State Atty. and Ira N. Lo-ewy, Asst. State Atty., Eleventh Judicial Circuit, Miami, for appellee.
   PER CURIAM.

This is an appeal from an attorney disciplinary proceeding in circuit court pursuant to Fla.Bar Integr.Rule, art. XI, Rule 11.14. We have jurisdiction. Art. V, § 15, Fla. Const. We approve the disciplinary measure recommended by the circuit judge in his written judgment and report of disciplinary matter.

Appellant was the attorney in a child custody proceeding. He was not the original attorney of record; he came into the case after what he thought were improper orders were entered. Appellant represented the mother, who initially was awarded custody of the minor child. However, when the mother was admitted to a psychiatric hospital for treatment of a mental illness, temporary custody of the child was awarded to the father. Upon her release, the mother sought to regain custody of the child in the proceedings which are the subject of this disciplinary action.

During the course of the proceedings, appellant had many heated discussions with the presiding judge in the matter, Judge Jon Gordon. Judge Gordon appointed a guardian ad litem to represent the minor child in the custody proceeding. Appellant, dissatisfied with this appointment, filed numerous motions attempting to have the order appointing the guardian ad litem vacated.

His motions unsuccessful and the child custody litigation terminated adversely to his client, appellant filed a writ of mandamus in the Third District Court of Appeal attempting to have the child returned to his mother. He also filed an appeal from the circuit court judgment. It is primarily the allegations concerning Judge Gordon made in these pleadings to the Third District Court of Appeal that caused this disciplinary action to be brought against appellant. '

As a result of the accusations made against him in appellant’s pleadings, Judge Gordon, pursuant to Fla.Bar Integr.Rule, art. XI, Rule 11.14, directed the state attorney for the Eleventh Judicial Circuit to file disciplinary proceedings against the appellant. The motion was filed on February 9, 1983, and Judge Vann was assigned to try the case. After trial, the judge entered a written order setting forth his findings. Because the record supports these findings, we will quote the relevant portions. The trial judge found as follows:

Certain pleadings had been filed on December the 22nd, 1982 entitled, Petition or for Rehearing of Order dated December 7th, 1982 and for other relief. The appellate court on its own motion struck paragraphs ten and eleven from the petition as being scandalous and impertinent.
Paragraph ten of this petition had stated, “This should have been the end of the case but that was not to be, Judge Gordon on his own motion made this case into a federal case and appointed Paul Fletcher as an attorney ad litem for the child. The judge also ordered the parties to pay Mr. Fletcher one thousand dollars within a week and whatever he chose to charge them. Judge Gordon later re-cused himself to avoid the appearance of impropriety and Paul Fletcher was removed by the new judge assigned to the case. In paragraph eleven the Petitioner submits, there can be no doubt that the only reason Judge Gordon joined the grandparents in this action and appointed Paul Fletcher to be the attorney for the child was so Judge Gordon could give one of his cronies a political appointment, and for no other reason. This action by Judge Gordon does not reflect the actions of the vast majority of circuit judges and be considered an abuse of his discretion.”
In another pleading filed by Cerf on January 13th, entitled Petitioner’s Response to the Motion to Strike, contained in Respondent’s reply for petition of rehearing, he stated on page 3 of that pleading, paragraph B, “The Respondent was the person who entered the order appointing the attorney ad litem and the Respondent was the person responsible for its content and whether or not it arose public confidence in the judiciary. Every knowledgeable person including the press knows that one thousand dollars is the maximum political contribution, and that the court appointed attorneys are only entitled to a reasonable fee. To order the mother and father of the child to pay a court appointed attorney the same amount as the maximum political contribution allowable to judge up front and to order them to pay the attorney’s fee without limitation is scandalous in itself.” Further, on page 5, paragraph E of that pleading Cerf wrote “Proverbs 28:01, the wicked fleeth when no man pursueth. The Petitioner’s counsel has known and liked the Respondent for many years and bears no hard feelings against Respondent or the attorney ad litem he appointed, as is more fully set forth in Exhibit 9 attached. This, of course, does not mean that the Petitioner’s counsel would sit idly by and watch his client get ripped off without trying to do something about it. To just sit idly by would be to enter into a conspiracy of silence and the Petitioner’s counsel has never been a part of that conspiracy. Rather he tried to make the best of a bad situation and work around it.”
Further in that same paragraph he wrote “It was the Respondent who entered the order and it is his own fault that he was, as Shakespear wrote, ‘Hoisted with his own Petard’: Hamlet, Act 3, Scene 4. The Petitioner further submits that the reporting of a scandalous action by the Respondent to this court does not make the report scandalous. If it was, then this court would never be able to review a scandalous order entered by a lower court judge.” On page 6 of the same pleading, paragraph F, Cerf writes “He’s also working with the Circuit Court to try to prevent another unfavorable Dade County Grand Jury report as to the failure of the political spoils system to provide guardians ad litem for the elderly as is more fully set forth in Exhibit 11. He has been in contact with the press about problems concerning the appointment of attorneys but has not given the press the name of this case or the case number of the name of the judge. Suffice it is to say the press considers the action of any judge in ordering parents to pay a court appointment attorney one thousand dollars up front scandalous and newsworthy. Petitioner’s counsel has, however, kept this out of the press.... The honest judges and honest lawyers do not need any more negative publicity about their brethern who stray from the path.” Further in page 6 of the motion Cerf writes, ‘‘The Respondent seeks to have sanctions imposed upon counsel for the Petitioner for blowing the whistle on him based on the Carter v. Beggs case found at 51 Southern Second 423.”
Further in the same petition on page 7, Cerf writes “The Petitioner is also concerned that the granting of the motion to strike or the imposition of sanction on counsel for the Petitioner for bringing the action of the lower court to this court’s attention will lead to the negative publicity about the court that he has in good faith tried to prevent. Such a thing may lead to the identification of the order already considered scandalous by the press and every attorney that has discussed this with counsel for the Petitioner.”
In a petition for rehearing of order dated January 11, 1983 filed on January the 26th, 1983 in paragraph eight of said petition, Cerf wrote, “Acts like the order entered by the lower court judge just add fuel to the fire of the public perception and that the Dade County courts exist only for the rich, and those citizens unable to bribe a judge or make a maximum political contribution to his campaign can’t get justice. This is especially acute when Dade County has been torn by repeated riots and scandals involving judges.”
In another proceeding in the Third District Court of Appeal, Case Number 82-1464, which was a motion filed in evidence in this proceeding, marked Respondent’s Exhibit “N”, in an action for mandamus in which David Cerf attempted to have the Third District Court of Appeal mandamus Judge Edward Kline, a judge of the Eleventh Judicial Circuit to enter an injunction, to enjoin the killing of the deer in the Everglades. Mr. Cerf wrote in his pleadings in paragraph eight of said exhibit, “These appellants complained that Judge Kline did not give them their day in court before a judicial decision was made as to whether or not the mass killing of these deer was lawful. Judge Kline passed the buck to this court, and it appears the court will be remembered as the court that permitted the killing of deer without letting the humane organizations have their day in court on the lawfulness of the killing. Unless this court now grants a stay, or an alternative writ of mandamus so the humane organization can have their day in court, and this will not prejudice the appellee and will help restore the public confidence in the courts. The courts in and around Miami have suffered since the senseless killing of Arthur McDuffy. The senseless killing of these deer by cruel hunters will only reinforce the incorrect public impression of Miamians as barbarians who have nothing better to do than to go to the Everglades in the daytime, drink beer, kill tame deer and, later, in the nighttime, put on white sheets, bomb Jewish places of worship, burn crosses, and beat black men to death for running a red light, I’m afraid that in the court of law we’ll hear the complaints of these victims.”
It is primarily on the pleadings that Mr. Cerf filed more than the words spoken in proceedings before Judge Gordon, that brought about this action.
FINDING OF FACT
In the testimony before me that encompassed six different hearings, there was much irrelevant testimony, as well as documents of no relevant value, admitted by me in these proceedings. The testimony of David Cerf was repetitious, rambling, and he apparently did not comprehend that most of his testimony was not pertinent to issues before this court. Cerf holds himself out to be an expert in appellate procedure and in particular the use of extraordinary writs, to attempt to force trial judges to rule favorably with him. He testified that he gives lectures in which he tells those in attendance that he uses colorful words to catch the attention of the appellate court. The record of the pleadings filed and the appellate court’s striking of certain portions of his pleading as being scandalous and impertinent, clearly shows that the conduct of David Cerf in filing such pleadings was irresponsible, impertinent, scandalous, and totally lacking in foundation for the truth or voracity of these pleadings.
Mr. Cerf attempted to create the impression that Judge Gordon had appointed Paul Fletcher because he was, as quoted from Cerf, “A political crony”, and that Judge Gordon had awarded him a thousand dollars to repay him for a political contribution. The records show that Mr. Fletcher had never contributed anything to Judge Gordon and that Judge Gordon had accepted no contributions from any lawyer. The record shows that Paul Fletcher had represented Judge Gordon at one time when Judge Gordon bought and sold a home and for that service Judge Gordon had paid him a fee of eight hundred dollars. In his testimony, Cerf stated that Judge Gordon as well as Judge Thomas Tester were not, “square shooters”. Throughout the proceeding, Mr. Cerf referred to perception of the public and perception of the press as an excuse, an apparent excuse, for the use of some of the language that he used in the pleadings. However, there was no evidence of what the public perception was, or the perception of the press, except for Mr. Cerf and from a Reverend Thedford Johnson, a black minister, who felt that most black people think that white politicians including judges are dishonest.
It is my finding that the Respondent did violate Canon 1 EC 1-5, D.R. 1-102(5) in his conduct before the trial court and in filing pleadings of such a nature before the appellate court, and in his testimony at the proceedings of this action.
RECOMMENDATION
I recommend the following:
1. That the Respondent be found guilty as charged of the violation of said Canon, Canon 1 EC 1-5, D.R. 1-102(5).
2. That the Respondent be given a public reprimand.
3. That all cost incurred in this proceeding be taxed against the Respondent.

Appellant does not deny that he made these statements against Judge Gordon without investigation as to their truth. Indeed, he cannot deny it, since they are documented in his pleadings that are made a part of the record in this proceeding.

Instead he argues in his petition for review to this Court that the trial judge erroneously denied certain motions that he made during the proceedings such as a motion to strike as sham pleading and a motion for summary judgment. Rule 11.14 does not expressly provide that the Florida Rules of Civil Procedure should apply. As such, it was not an abuse of discretion for the circuit judge to deny these motions.

The record clearly shows that appellant made false and unsubstantiated charges against Judge Gordon’s integrity. Such conduct cannot be condoned. It is one thing to allow an attorney his truthful criticisms against our judicial system. However, it is quite another to allow an attorney a poetic license to falsely slander a circuit judge with untrue accusations of political corruption and bribery. Such accusations represent more than a personal attack upon that particular judge, but casts slur and insult upon the judiciary as a whole. See The Florida Bar in re Shimek, 284 So.2d 686 (Fla.1973).

The findings and recommendation of discipline against appellant of the circuit judge are hereby approved. The publishing of this opinion in the Southern Reporter serves as a public reprimand to the appellant.

It is so ordered.

BOYD, C.J., and OVERTON, MCDONALD, EHRLICH and SHAW, JJ., concur.

ALDERMAN, J., concurs in part and dissents in part with an opinion, in which ADKINS, J., concurs.

ALDERMAN, Justice,

concurring in part, dissenting in part.

I concur with the approval of the findings and the recommendation as to guilt of David Cerf. His conduct in filing such pleadings, however, was so irresponsible, impertinent, and scandalous that a public reprimand is not a sufficient penalty in this case. I therefore dissent from that portion of the majority opinion which approves the trial judge’s recommended penalty. Instead, I would suspend appellant from The Florida Bar for six months. His conduct was reprehensible and warrants no less. It was contemptuous conduct, and the judges of the district court used unusual restraint when they merely struck portions of his rehearing petition as impertinent and scandalous and when they struck his petition for rehearing filed January 26, 1983. Appellant’s reprehensible conduct has not ceased as evidenced by his reply brief in the present proceeding before us wherein he continues to make the same type of slurring comments for which the Court is now reprimanding him.

Appellant should be suspended from The Florida Bar for six months. Nothing less will impress upon him the reprehensibility of his conduct.

ADKINS, J., concurs.


author: EHRLICH, Justice.

text:
    The TRIBUNE COMPANY, Petitioner, v. Norman CANNELLA, Chief Assistant State Attorney, Cynthia Sontag, Director of Administration of the City of Tampa, Robert DePerte, Robert Jones, and Roy Pierce, Respondents. Robert DePERTE, Robert Jones, and Roy Pierce, Petitioners, v. The TRIBUNE COMPANY, Respondent.
    Nos. 64450, 64453.
    Supreme Court of Florida.
    Sept. 6, 1984.
    Rehearing Denied Dec. 20, 1984.

      Julian Clarkson, Gregg D. Thomas, Steven L. Brannock and Mike Piscitelli of Holland & Knight, Tampa, for The Tribune Co., petitioner/cross-respondent.
    Joseph G. Spicola, Jr., City Atty., and Luis G. Figueroa, Asst. City Atty., for Cynthia Sontag, Director of Administration of the City of Tampa.
    Edwina J. Duryea and R. Jeffrey Stull of Stull & Heidt, Tampa, for DePerte, Jones and Pierce.
    Jim Smith, Atty. Gen., Mitchell D. Franks, Chief Trial Counsel and Eric J. Taylor, Asst. Atty. Gen., Tallahassee, ami-cus curiae for State of Florida.
    George K. Rahdert of Rahdert, Anderson & Richardson, St. Petersburg, and Richard J. Ovelmen, Gen. Counsel, Miami, amiei curiae for Times Pub. Co. and The Miami Herald Pub. Co.
   EHRLICH, Justice.

This case is before us to answer questions certified to be of great public importance. Tribune Co. v. Cannella, 438 So.2d 516 (Fla. 2d DCA 1983). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

The Tampa Times, a now-defunct afternoon newspaper published by the Tribune Co., sought release of the personnel files of three Tampa police officers, pursuant to the Public Records Act, chapter 119, Florida Statutes (1981). The officers had been involved in an incident where a suspect was shot and killed. Sontag, director of administration for the City of Tampa and custodian of the records requested, refused to release the files. Her refusal was based on a city policy of delaying release of personnel files seven days pending notice to the affected employee. The delay had been reduced to three days before the district court filed its opinion. The newspaper persisted in demanding the files, leading to actions in both state and federal court, by the newspaper and by the city and the officers. Following three weeks of intricate legal maneuvering, the city released the personnel files.

During the maneuvers, the newspaper had filed a petition for a writ of certiorari with the Second District Court of Appeal. Although the files had been released, the district court took jurisdiction because the problem was “capable of repetition yet evading review.” Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975). In an en banc decision, the Second District held, 5-4, that government employee personnel files could be automatically withheld for 48 hours, to allow employees an opportunity to raise any claims that the information should be withheld permanently because of privacy interests. The court also certified two questions to this Court:

I. May disclosure of nonexempt public records automatically be delayed for a specific period of time for any reason?
II. If the answer to the first question is yes, what is the maximum permissible delay period, and for what purpose or purposes may the delay period be invoked?

The Tribune challenges the holding that a 48-hour delay is permissible, while the officers have cross-petitioned, urging that they have a privacy interest which must be protected by an automatic delay to allow time to raise the issue. The Court allowed the briefing on the two cases to be consolidated. We hold that no automatic delay is permitted and answer the first question in the negative. The second question is mooted.

We base our decision on the fundamental principle that a municipality may not act in an area preempted by the legislature. We agree with Judge Lehan’s cogent dissent to the opinion below on this point, 438 So.2d at 525-26.

Under [the preemption] doctrine a subject is preempted by a senior legislative body from the action by a junior legislative body if the senior legislative body’s scheme of regulation of the subject is pervasive and if further regulation of the subject by the junior legislative body would present a danger of conflict with that pervasive regulatory scheme.... Florida law, under section 166.021, Florida Statutes (1981), which cites article VIII, section 2(b) of the Florida Constitution, includes a more restrictive application of the preemption doctrine, precluding preemption and leaving “home rule” to municipalities unless the legislature has expressly said otherwise.

Id. at 525. See Rinzler v. Carson, 262 So.2d 661, 668 (Fla.1972) (“A municipality cannot forbid what the legislature has expressly licensed, authorized or required, nor may it authorize what the legislature has expressly forbidden.”); State ex rel. Johnson v. Johns, 92 Fla. 187, 109 So. 228 (1926).

The legislature has clearly preempted local regulation vis-a-vis delay in the release of public records. The Public Records Act, chapter 119, Florida Statutes (1981), provides that “It is the public policy of this state that all state, county and municipal records shall at all times be open for a personal inspection by any person.” Section 119.01(1). This fundamental policy in essence places all government records on the table for open inspection by all. While there are certain statutory exemptions from this initial disclosure, section 119.07 and the statutes cross-referenced therein, the public disclosure of the content of all nonexempt records occurs at the moment they become records. See, e.g., Shevin v. Byron, Harless, Schaffer, Reid and Associates, 379 So.2d 633 (Fla.1980) (information becomes public record when it is “prepared in connection with official agency business which is intended to perpetuate, communicate, or formalize knowledge of some type.” Id. at 640); Wait v. Florida Power and Light Co., 372 So.2d 420 (Fla. 1979) (exemptions limited solely to those provided by statute).

To literally place the records on the public table would be unrealistic. The legislature thus provided a procedure for making the records available for inspection. Section 119.07(l)(a) mandates that “Every person who has custody of public records shall permit the records to be inspected and examined by any person desiring to do so, at reasonable times, under reasonable conditions, and under supervision by the custodian of records or his designee.” Section 119.07(2)(a) provides that if the custodian believes certain items are statutorily exempt he “shall produce for inspection and examination” the record with the asserted exempt material deleted. Section 119.11 provides for an accelerated court hearing when, inter alia, the party seeking to inspect a record challenges the exemption asserted by the custodian under section 119.07(2)(a). The effect of these cited sections of the Act is to provide for timely inspection of the records, with the exception of statutory exemptions asserted by the custodian, which may be challenged by an accelerated court hearing. In essence, the custodian is mandated to place any nonexempt requested record “on the table” for inspection, at reasonable times and under reasonable conditions.

We have already held that reasonable items and conditions

refers not to conditions which must be fulfilled before review is permitted but to reasonable regulations that would permit the custodian of records to protect them from alteration, damage, or destruction and also to ensure that the person reviewing the records is not subjected to physical constraints designed to preclude review.

Wait, 372 So.2d at 425. No provision is made for anyone other than the custodian of records to withhold a record, and the only justification for withholding a record or a portion thereof is the custodian’s assertion of a statutory exemption.

The City of Tampa and the police officers urge that an automatic delay is necessary to allow the officers to be present during the inspection of their records, and to allow them time to raise any constitutional claim that the records should not be opened for inspection. To agree with these positions would cause us to write into the statute something that is not there, and this we decline to do.

Delaying inspection to allow an employee to be present during the inspection of his personnel records is not within the legislative scheme. The Act provides for the custodian or his designee to supervise the inspection of records. Section 119.07(l)(a). The sole purpose of custodial supervision is to protect the records from “alteration, damage, or destruction.” Wait. The Act does not provide that the employee be present during the inspection, nor even that the employee be given notice that an inspection has been requested or made. The employee’s presence could serve no legally cognizable purpose, and any delay to allow such presence is therefore inconsistent with the Act, which contemplates only the reasonable custodial delay necessary to retrieve a record and review and excise exempt material.

As to the argument that an automatic delay is necessary to allow an employee time within which to raise a constitutional challenge, we can only say that the time when the record is requested is not the time to raise such a challenge. The only challenge permitted by the Act at the time a request for records is made is the assertion of a statutory exemption pursuant to section 119.07. The only person with the power to raise such a challenge is the custodian. The employee therefore has no statutory right at the time a request for inspection is made. When the records are on the table, the purpose of the Act would be frustrated if, every time a member of the public reaches for a record, he or she is subjected to the possibility that someone will attempt to take it off the table through a court challenge. Likewise, an automatic delay, no matter how short, impermissibly interferes with the public’s right, restrained only by the physical problems involved in retrieving the records and protecting them, to examine the records. The legislature has placed the books on the table; only it has the power to alter that situation.

We therefore hold that the legislative scheme of the Public Records Act has preempted the law relating to any delay in producing records for inspection. The only delay permitted by the Act is the limited reasonable time allowed the custodian to retrieve the record and delete those portions of the record the custodian asserts are exempt.

Accordingly, the decision of the district court is quashed.

It is so ordered.

BOYD, C.J., and ADKINS, OVERTON, ALDERMAN, MeDONALD and SHAW, JJ., concur.

      . The district court also held that the officers had no privacy interest in their personnel records, and that personnel records could never be criminal investigative or intelligence information which are exempted from inspection by section 119.07(3)(d). Cannella had subpoenaed the records after the newspaper made its inspection request, and the city complied without retaining copies of the files, thereby rendering it temporarily unable to comply with the inspection request. Cannella then claimed the records were exempt as part of his investigation into the death of the suspect. The district court found this to be an improper "shell game” thwarting inspection and suggested a method to prevent such games in the future. 438 So.2d at 523. These issues were not raised in this Court.

      . The second district did not discuss in its opinion the right to be present during an inspection. However, the court relied heavily on its prior decision in Roberts v. News-Press Publishing Co., 409 So.2d 1089 (Fla. 2d DCA), review denied, 418 So.2d 1280 (Fla. 1982). In that case, the court found a 24-hour delay to be reasonable to allow an employee time to challenge the release of information as being statutorily exempt or protected by a constitutional right, and to allow the employee to be present during the inspection. In the instant case, the district court’s references to Roberts avoid mention of the right to be present. However, Sontag’s counsel urged at oral argument that the right to be present was one rationale for an automatic delay. Sontag urges in her brief that an automatic delay to permit the employee to be present may in fact further the goals of the Act, quoting from Roberts: "The right to be present may well result in the employee waiving any right of privilege or confidentiality, and, therefore, work to the advantage of prompt access to the records." 409 So.2d at 1095. Although the instant case apparently does not involve a regulation designed to allow the employee to be present, unlike the ordinance in Roberts, we find it necessary to address the issue because it has been raised.

      . We are aware of the 48-hour deadline of section 119.11(2) upon which the court below relied in determining what would constitute a reasonable period for an automatic delay. This section merely provides a two-day grace period for a custodian to appeal an inspection order and can have no effect on the custodian’s obligation to timely produce records for which he asserts no statutory exemption.