IN THE SUPREME COURT OF MISSISSIPPI NO. 2013-CA-02145-SCT STRIBLING INV

ESTMENTS, LLC

v. MIKE ROZIER CONSTRUCTION COMPANY , INC.

DATE OF JUDGMENT: 12/05/2013 TRIAL JUDGE: HON. JOHN HUEY EMFINGER COURT FROM W HICH APPEALED: MADISON COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: MARK D. HERBERT BRADFORD COLEMAN RAY ATTORNEYS FOR APPELLEE: CHARLES G. COPELAND TIMOTHY JOHN STERLING NATURE OF THE CASE: CIVIL - PROPERTY DAMAGE DISPOSITION: REVERSED AND REMANDED - 01/14/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED:

EN BANC. COLEMAN, JUSTICE, FOR THE COURT: ¶1. Stribling Investm e nts, LLC, sued Mike Rozier Construction Com pany , Inc., alleging negligence and negligent construction. The trial c ourt granted Mike Rozier C onstruction’s Motion f or Sum m a ry J udgm ent and dism issed S tribling Investm ents’ Com plaint on the ground t hat Mike Rozier Construction did not o we a duty to Stribling Investm ents. Stribling
Investm ents appeals. Holding that the trial court should consider whether the builder-vendor rule applies to Mike Rozier Construction Com p any , we reverse.FACTS AND PROCEDURAL HISTORY

¶2. In Decem

ber 2005, D .G. Gluckstadt, LLC (a nonparty to t he s uit), bought property on Yandell Road i n Gluckstadt, Mississippi, and e ntered into a lease with Dollar General. Mike Rozier and his son f

orm ed D.G. Gluckstadt solely to b uy property in G l u ckstadt, build a Dollar Gene r a l S tore, and then sell the property and assign the Dollar General lease to a subsequent buy er. ¶3. The lease between D.G. Gl u c k s t a d t , a s L e s s o r , a n d D ollar General, as Lessee, provided D .G. G luckstadt with D ollar General’s standard p lans to build a store a nd parking lot. Specif

ically , the lease required D.G. Gluckstadt to [ c]onstruct a building per the attached L essee approved site p l a n ( s howing building ingress a nd egress) using the Lessee’s P rototy pe Design Package (both d ocum ents attached hereto and m ade a p a r t of the L ease). D em ised P rem ises to be com

plete, i n com

pliance with all governing code authorit i e s and r eady f

or Lessee’s im m ediate occupancy . Dim ensions of De mised Prem ises to be as listed. The Dollar General prototy pe plans included grading and paving options f o r the heavy -duty section o f the parking lot, but provided an exception in the event that a certif ied geotechnical report specif

ied an alternate m ethod of construction. ¶4. D.G. Gluckstadt then s e n t a p r oject budget to Dollar General to help determ ine the lease am o unt, calculating a $30,000 cost of building the parking lot. The project budget also stated t hat an additional $30,000 would b e used f or “e a r t h w ork,” including grading, excavating, f

i lling, and degrassing the site. D.G. Gluckstadt claim s that it then hired Mike Rozier Construction Com p any , Inc. (“Rozier Construction”), to construct the building and the parking l ot. Mike Rozier also owns Rozier Construction. No f orm al written agreem ent

2existed b etween Rozier Construction and D.G. Gluckstadt. According t o M ike R ozier, “I do

not write contracts to m y self .” ¶5. B e f

o r e c o n s t r u c t i o n , Ladner T esting Laboratories was h ired to test the soil a n d

recom m end the best way to build the parking lot

. R o z i e r C o nstruction did not f ollow the construction recom m endations f r o m L adner Laboratories, nor did it excavate the ground according to the project b udget. R ozier Construction degrassed t he area f o r the parking lot, installed between three a nd eight f eet of f ill, a n d l a i d a slab. R ozier C onstruction did not check the m oisture level of the soil. It also did not utilize any steel rebarb or geotechnical f a b r i c to stabilize the parking l ot. Rozier Construction claim s that it inf o rm ed D

. G

. Gluckstadt of all of t he above, and that D.G. Gluckstadt waived the duty of workm anlike construction. Rozier Construction states that D.G. Gluckstadt “m ade an inf orm ed econom ic decision” to construct a less-expensive parking lot t h a n that recom m ended b y Ladner Laboratories a nd D ollar General’s prototy pe p lan, a ll considered w ith “f ull knowledge and appreciation of the costs and benef its of the construction design and m ethods.” ¶6. Other t h an Mike R ozier’s depositions, the record does not contain any e v idence that Rozier Construction com m unicated the m eans of construction to D.G. Gluckstadt, let alone that D. G. Gluckstadt a

pproved t hose m e ans. In f a c t, during his deposition, Rozier stated that he was not sure whether he had e ver seen the 2005 Ladner Report. Further, as Rozier owned both com panies, f or Rozier Construction to present f acts and o ptions to D.G. Gluck s tadt would m ean that Mike Rozier presented them to himself

(and, perhaps, his son.)

3¶7. I n 2 0 0 6 , at the e nd of construction, D.G. Gluckstadt sold the building a n d l a n d t o

Stribling Investm e nts, LLC, and assigned to i t the Dollar General l ease. Prior to p urchase, Stribling procured a n inspection perf orm ed by a licensed c ontractor t hat did not reveal any visual cracks or other issues in t he parking lot. The contract between D.G. Gluckstadt and Stribling did not disclose the s ubsoil conditions. The land sale c o n t r a c t between D.G. Gluckstadt and Stribling contained an “as-is clause” that stated: It is understood and agreed that the property is being sold “as is”; that Buy er has, o r will have prior to the Cl o s i n g D ate, Inspected the Property ; and t hat neither Seller nor Agent m akes any representation or warra n t y a s to the phy sical condition or value of the Property o r i ts suitability f or Buy e r’s intended use. Af ter the lot began showing signs of d ef iciencies and deterioration and a n April 2012 analy sis and report f

rom Ladner Testing Laboratories indicated poor construction, Stribling contacted Rozier Construction and m ade a dem and f o r repairs. W hen Rozier Construction did not respon d , S t r i b l ing f iled suit against Rozier Construction in the Circuit Court of Madison County , alleging negligent design and negligent construction of the parking lot. ¶8. The trial judge granted s u m m ary judgm ent in f avor o f R ozier Construction. The trial judge f ound that “[ t]he plaintif

f has not shown any ‘sum m ary judgm ent’ proof that the Def endant f ailed to c onstruct the parking lot in question a c c ording to the s pecif ications required according to its verbal contract with D.G.” The instant appeal f ollowed. ISSUE

4¶9. We a d dress the issue of whether genuine issues o f m aterial f act exist and p r e c l u d e

sum m ary judgm ent in f

avor of Rozier Construction. Resolving this q uestion requires us to address the f

ollowing:
I. W hether D .G. G luckstadt i n d e e d waived the duty owed by Rozier Construction such that Stribling cannot invoke it.
II. W hether the sale contract’s “as-is” clause bars Stribling’s suit against Rozier Construction.

STANDARD OF REVIEW ¶10. The grant or denial of a sum m ary judgm ent m otion i s reviewed de novo . Town Creek
Master Water Mgm t. Dist. o f Lee, Pontotoc, Prentiss, Union Ctys. v. W ebb , 93 S o. 3d 20, 24 (¶ 9) (Miss. 2012). “[ The] Court, as wel l a s t h e trial court, considers all evidentiary

m atters bef

ore it

– a dm issions in pleadings, answers to interrogatories, d epositions, af f idavits, etc.” Rein v. Benchm ark Constr. C o. , 8 65 So. 2d 1134, 1 142 (¶ 2 4) ( Miss. 2004). The Court views the evidence in a light m ost f avo rable to t he nonm oving party

. “The

m oving party has the b urden to show n o genuine issue of m at e r i a l f act exists.” Cade v. B e a r d , 1 3 0 So. 3d 77, 8 1 (¶ 11) (Miss. 2 014). The opposing party m ust t hen set f

or t h specif ic f acts to show a g e n u i ne issue f or trial. Id. Sum m ary judgm ent is p roper if “there is no genuine issue of m aterial f ac t a n d t h e m o vant is entitled to judgm ent as a m atter of law.” Rein , 856 So. 2d at 1142 (¶ 25). ANALYSIS ¶11. W e reverse the grant of sum m ary judgm ent because whether Rozier Construction and D.G. Gluckstadt had a builder-vendor relationship serves as an i ssue of m aterial f act. If so,

5D.G.Gluckstadt would be ineligible to “waive” R ozier Construction’s duties to the f i r s t purchaser o f t h e p roperty

. A t the hearing o n Rozier Construction’s M otion f or Sum m ary Judgm ent, Stribling did n ot use the term “builder-vendor,” but Stribling’s m ain argum ent in opposition to the Motion was that Mike Rozier owned both com panies and theref

ore could

not give notice to him self of any def ects, nor could h e w aive d uties owed to him self when the purpose of

the construction was f

or sale to another party

. ¶12. For y ears, Mississippi has em braced the duty of workm a nlike construction f or hom es. The purchase of a hom e is quite f requently the m ost im

portant a nd expensive investm ent that a f

am ily m a kes. Yet, m ost purchasers sim ply do not h ave the knowledge o r e xpertise necessary to discover m any def ects. They m

u st instead rely upon t he h onesty and expertise o f the builder. Consequently , if the hom e is poorly constructed w ith latent def e cts, the purchaser m ay very well be subject to a m ajor f

inancial c atastroph e a gainst which he has n o practical m eans of protecting him self

. Key es v . Guy Bailey Hom e

s, Inc. , 439 So. 2d 670, 671-72 (Miss. 1983). In addition,

contractors and construction com p anies have a duty to disclose def ects i n f i lls and subsoils
upo n w h i c h t h e construction is to take place, regardless of the com m ercial or residential

nature of the c onstruction. Pike v. Howell , 748 S o. 2d 710, 712 (¶ 6) (Miss. 1999); George B. Gilm ore Co. v. Garrett , 582 So. 2d 387, 393 (Miss. 1991). ¶13. In Pike , t he Court decided a case in which the owner o f a g a s s tation h ad alleged negligent construction of its concrete pad. The Court narrowed the issue on appeal, stating that “ [ q]uite sim

ply , t his case deals with notice and waiver.” Id. at 7 12 ( ¶ 6). A contractor has a well-established duty to warn of def e cts i n the subsoil, the Cou r t stated, and Howell Building Supply

had f ulf illed that duty

when it pointed o ut the problem s to the owner. Id.

6By contrast, a contractor “does not perf orm his contractual o bligations i n a workm anlike

m anner if he f

ails to notif

y the owner of the existence o f the condition.” Id. (internal citation

rem oved.) T he Court held that, by then choosing to g o ahead with her p lans af ter hearing of the s ubsoil def

ects, the owner had waived objection to the s ubsoil def ects and any harm that potentially

m ight result in the gas station’s concrete pad. Id. at 713 (¶ 8). ¶14. R o z i er Construction argues t hat i t h ad an oral contract with D.G. Glucks t a d t , t h e

o r iginal owner of the property , to construct the parking lot and that D.G. Gluck s t a d t h a d approved the m ethods subsequently u s e d f or construction. Pointing to Garrett , Rozier Construction claim s that the oral contract serves as the sole instrum ent that “creates the state of things which f

u rnishes the occasion o f the t o r t

. ” G a r r e t t , 582 So. 2d at 391 (quoting Pinnix v. Toom e

y , 87 S .E.2d 893, 897-98 (N.C. 1955)). Under its theory , D.G. Gluckstadt knew about the D ollar General prototy pe p l a n and about the Ladner r ecom m endations but ultim ately cho s e a dif

f e rent design. Because D .G. G luckstadt had been notif ied about the condition of

the subsoil and the range of options and costs available to construct a parking lot of vary ing degrees of sturdiness a nd longevity , and because D.G. Gluckstadt ultim ately chose a “Chevrolet” instead of a “Cadillac,” Rozier Construction argu e s t hat Stribling
Investm ents cannot now claim m ore rights a gainst Rozier C onstruction than D.G. Gluckstadt would have had. ¶15. At f

irst blush, Rozier Construction’s conclusions a ppear t o b e legally sound. Under Pike , D

. G

. G l u c k stadt certainly would not have been able to s ucceed in a negligence suit against Rozier Construction af ter it had waived the condition of t he subsoil.

7On num erous occasions this Court has said t ha t i n a s signm ents of contracts

between parties an assignee obtains no greater right in the thing assigned t han was possessed b y the assignor, but sim ply stands in the shoes o f the latter and the assignee’s r i g h t s c a n rise no higher t han the assignors. See Indiana Lum berm en’s Mut. Ins. Co. v. Curtis Ma t h e s M f g . Co. , 456 So. 2d 7 50 (Miss. 1984); S

m ith v. Copiah County , 232 Miss. 838, 100 So. 2d 6 14 (Miss. 1958); Sim m ons v

. Sm ith County Bank , 225 Miss. 384, 83 So. 2d 441 (Miss. 1955); and Canton E

xchange B ank v. Y

azoo County , 144 Miss. 579, 109 So. 1 (Miss. 1926). Ford v. White , 495 So. 2d 4 94, 497 (Miss. 1986). However, Rozier Construction’s a rgum ent conceals one f

atal f law: W hen asked during his deposition i f he w ould be able to produce the contract c rea t e d between R ozier Construction and D.G. Gluckstadt, Mike Rozier responded, “I d on’t write contracts to m y self

. ” Theref ore, other than Rozier C onstruction’s

c l a i m s of an oral c ontract, no evidence exists proving that Rozier Construction i n d e e d warned D .G. Gluckstadt about the def ects in the subsoil. Nor does any evidence exist within the record that D .G. G luckstadt exercised a choice of a “Chevrolet” parking l o t o v e r a “Cadillac” parking lot. ¶16. In B rown v. Elton Chalk, Inc. , 3 58 So. 2d 721, 722 (Miss. 1978), the Court allowed

a purchaser of a hom e to proceed with a claim o f a builder-vendor’s breach of the im plied warranty of habitability

. The r ule required the party to “allege in his declaration, inter alia , that (1) the house is new; and (2) that the plaintif f was the f irst purchaser.” Id. The Court had continued to hear c ases in w hich a party has been accepted as a builder

- v e n d o r entity , but as of y et has not established a f r am ework f

or determ ining w hat, e xactly , constitutes a builder-vendor. See Parker v. Thornton , 596 So. 2d 8 54 (Miss. 1992); K eyes v. Guy Bailey
Hom es, Inc. , 439 So. 2d 670 (Miss. 1983).

8¶17. Pennsy lvania has s tated that a builder-vendor is “one who buy s land and builds hom es

upon that land f

or purposes of sale to the g eneral p ublic.” Elderkin v. G aster , 288 A.2d 771, 774 n.10 (Pa. 1972). In Rogers v. Lewton , 570 N.E.2d 133, 135 (Ind. Ct. A p p . 1991) (quoting Callander v. Sheridan , 546 N.E. 2d 850, 853 (Ind. App. 1989)), Indiana determ ined that “where a person undertakes the res p o n sibility of a g eneral contractor, h e m ust also accept t he attached liability of a builder-vendor to a subsequent buy er.” The Suprem e Court of A rizona r e iterated in Lofts a t F i l l m o re Condom inium Association v. Reliance C o m m e r c i a l Construction, I nc. , 190 P. 3d 733, 736 (¶ 12) (Ariz. 2008), that the publi c policy b ehind im

plied w arranties in the construction industry is “to p rotect innocent buy ers and hold builders responsible f or their work.” Any o ther rule t hat arbitrarily would block an innocent buy e r f

rom relief would be “incom prehensible” and “m ight encourage sha m f irst sales to insulate builders f rom liability .” Id. at 736 (¶ 16) (quoting Richards v. Powercraft
Hom es, Inc. , 678 P.2d 4 2 7, 4 30 (Ariz. 1984)). The Arizona S uprem e Court also noted that,

as t he m arket continues t o evolve, the builder-vendor identif ication h as been s h if

ting “f rom the t raditional b uilder-vendor m odel to arrangem ent s u n d e r w h i c h a c o n s t

r u c t i o n e n t ity builds the hom es and a sales e ntity m arkets them to the p ublic. In s om e cases, the builder m ay be related to the vendor; in other cases, the builder and the vendor m ay be unrelated.” Id. at 736 (¶ 17). ¶18. We t a ke f

rom Lofts t he guiding principle that, i n determ ini n g w h e t h e r a p a r t y constitutes a builder-vendor, Mississippi’s o verarching policy is t o vitiate sham transactions that would d eny r e l ief to t he innocent purchaser of new construction. The builder-vendor

9transactions m ay t ake the f orm of hollow sales of com pleted projects to strawm e n, and then

to the true f

i rst purchaser. They also m ay take the f orm o f s ister c om

panies – one entity who

owns t he l a n d , t h e o ther w ho im proves the l and – that work t ogether t o ef f ectuate sham waivers of notices or im

plied warranties. Further, we rem ind plaintif f s that they m

ust raise the builder-vendor issue early in litigation: They m ust allege in t h eir declaration, at

m inim um, t h a t ( 1 ) the construction is new; and (2) that the plaintif f was the f

irst innocent purchaser af

ter the com

pletion of the allegedly negligent construction. B rown , 538 So. 2d at 722. ¶19. The m ajority of builder-vendor precedent in Mississippi and in other states centers on hom ebuilders, a s hom ebuilders are resp o n s i b l e f or i m p lied warranties of f

itness f or habitability

. The duty to disclose def ects in subsoil and f

ill conditions, however, applies to all builders, regardless of whether their construction is f or com m ercial or residential
purposes. See Pike , 7 48 So. 2d a t 712 (¶ 6). W hether t he def endant is a builder-vendor f or the purposes of d eterm ining the v alidity of the disclos ure or subsequent waiver of those conditions “is a question of f act to be determ i ned on a case-by

- case basis.” Hoke v. Beck , 587 N.E.2d 4, 7 (Ill. App. 3d 1992). ¶20. Regarding the instant case, we reverse the trial c o urt’s grant of s u m m a r y j udgm ent and

r e ma n d f o r f urther proceedings. On rem and, t he trial court should consider whether the b u i l der-vendor context applies to the relationship between Ro z i e r C o n s t r u c t i o n C o m

p a n y a n d D.G. Gluckstadt. A review of Stribling’s com plaint shows that i t alleged that the parking lot

was new, and th a t Stribling was the f irst p urchaser, satisf

y ing Brown , 358 S o. 2d at 722.

1 0Should the trial court f ind that the builde r -vendor classif ication applies to Rozier Construction, its a rgum ent that it disclosed t he def ective subsoil conditions beneath the parking lot to D.G. Gluckstadt , a n d that D.G. Gluckstadt w aived the use of particular im p rovem ents to com

bat the subsoil def

ects, m ust f ail. However, if t he t rial c ourt were to f ind the b uilder-vendor classif ication inapplic a

b l e t o D

. G

. G l u c k s t a d

t , t h e n t he disclosure and waiver were ef

f ective and dism issal is appropriate. ¶21. Another issue exi s t s r e g a r d i n g whether the “as-is” clause within the sales contract between D.G. Gluckstadt and Stribling bars any objection Stribling has to the condition of the land and parking lot. Notably , Stribling has sued only Rozier Construction, a nonparty

to the sales c ontract, a nd not D.G. Gluckstadt. Mississippi does not have m uch caselaw on the f orce and ef

f ect of a n “as-is” clause, but suc h a c l a u se h as been applied t o c o nstitute a transf er of property without any warranties. See Stonecipher v. Kornhaus , 6 23 So. 2d 955, 963 ( Miss. 1993) ( holding that the “as-is” clause bars a negligent-m isrepresentation suit as
to the natural condition of the land); Be aum ont Hom es, LLC v. Colonial/Jordan Props.,
L L C , 7 1 So. 3d 1238, 1240 (¶ 8) (Miss. Ct. App. 2011) (“[ A ]n ‘ as is’ clause in a c o n t r a c t

exem pts a seller f

rom liability pertaining to the condition of the property .”) ¶22. Rozier Construction argues t h a t t h e b u i l d e r-vendor rule would m e rge it and D.G. Gluckstadt into a single entity , thereby a llowing Rozier Construction to benef i t f rom the “asis” clause within the sales contract executed by D.G. Gluckstadt. W hile Mississippi requires

a disclosure statem ent to a c c o mp any the sale of a dom icile or house, “[ t]ransf ers of real property o n w hich no dwelling is located” do not require disclosure statem ents to be provided

1 1to the buy er. Miss. C ode Ann. §§ 8 9-1-501( 1 ) , 8 9

- 1

- 5 0 1(2)(h) (Rev. 2011). However,

should the trial court determ i ne that Rozier Construction and D.G. G luckstadt t ogether f orm

a builder-vendor e ntity , the af f i rm ative duty to disclose def ects within th e subsoil to
p r o s p e c t i v e buy ers would still a pply , regardless of a n “as-is” c lause. S ee Pike v. Howell Bldg. Supply C

o . , I n c. , 7 48 So. 2d 710 (Miss. 1999). In the instant case, the Yazoo clay

un d e r t h e p a r king lot has caused its deterioration. The C ourt has m ade it clear that the
p r oblem s presented by Yazoo dlay are known and should not be i gnored. Garrett , 582 So. 2d at 393-94 (“‘As a general rule, the builder is responsible f o r def ects caused by def

ects in the s oil

. . . . ’ Gilm ore gave the Yateses n o i n f orm ation a s to y azoo clay , and m ade no allowance whatever in the f oundation f

or y azoo clay just a f

ew f eet beneath the surf

ace.”) (quoting 17A C.J.S. Contracts , § 515(e), 857). ¶23. If the builder- v e n d o r c l a s s i f i c a t i o n a p p l i e s t o R o z i e r Construction and D.G. Gluckstadt, then the f

irst purchaser of the property is Str i b l i n g . The warranty of workm anlike construction applies to the s ale of new c onstruction to the f irst purchaser, and it requires the contractor t o inf o rm the owner – or u nder the builder-vendor c lassif ication, the f irst purchaser – “of a def

e ct in a particular subsoil” if the contractor k nows or should know of the def ect. Pike , 748 So. 2 d a t 7 1 2 ; Garrett , 5 82 So. 2d at 393. An “as-is” clause m ay waive a warranty , but only after the satisf action of the af

f irm ative duty t o disclose soil def ects. Thus, s h o uld the f

actf inder, o n rem and, f

i nd that Rozier Construction and D.G. Gluckstadt have a builder-vendor relationship, the com b ined entity of Rozier C onstructionD.G. Gluckstadt carried the af f irm ative duty to inf

orm Stribling of the Yazoo clay below the

1 2parking lot, as well as any o ther subsoil def e cts, before Stribling executed the sales contract containing the “as-is” clause. ¶24. T o be clear, t oday we hand down a very f act-driven hol d i n g . F i r s t , an issue of

m aterial f act exists as t o whether Rozier Construction a nd D.G. Gluckstadt have a buildervendor r elati o n ship, rendering the trial court’s grant of s um m ary judgm ent inappropriate. Should t hey be deem e d to have a builder-vendor relationship on rem and, the analy sis should disregard a ny “notice and waiver” of the existence of Yazoo c lay and of c onstruction options that would have accounted f or that ty pe of soil, and Stribling should b e r egarded a s the f irst purchaser of the property f rom t h e b u ilder-vendor e ntity Rozier Construction-D.G. Gluckstadt. W i th Stribling as the f irst p u r c h a ser, Rozier Construction-D.G. Gluckstadt would have been under a duty to dis c l o s e a n y s oil def ects to Stribling bef

ore the sales contract’s execution. However, the trial court also m ay com e t o t he alternative f inding that Rozier Construction and D .G. Gluckstadt did not have a builder-vendor relat i o n s h ip, at which point Stribling would be bound by D.G. G luckstadt’s n otice and waiver of t he subsoil def ects, as well a s the m

utual decision between D

. G. Gluckstadt and R ozier Construction to build a substandard parking lot. CONCLUSION ¶25. W e have long enf

o r ced the builder-vendor classif ication f or our citizens’ hom es and

see no reason to ref

u se sim ilar protection to M ississippi’s c o m m ercial class. Today , we give guidance to f

actf inders f or their f uture consideration of

whether entities possess a buildervendor relationship, regardless o f whether the property i n q u estion was residential or

1 3com m ercial. W e f urther hold that a builder-vendor’s duty t o disclose known def ects survives

an “as-is” clause i n a s ales c ontract, unless t he buy er provides an inf orm ed waiver of claim s with respect to t h e k n o w n def ect. W e theref

o re reverse the trial court’s grant of sum m ary judgm ent and rem and the case f or f urther proceedings consistent with the instant opinion. ¶26. REVERSED AND REMANDED. DICKINSON A ND RANDOLPH, P. J J . , L A M A R A N D P I E R C E , J J . , C O NCUR. KITCHENS, J., CONCURS IN RESULT ONLY WITH SEPARA TE WRITTEN OPINION JOINED BY KING, J.; DICKINSON AND RANDOLPH, P.JJ., JOIN IN PART. WALLER, C.J., AND MAX WELL, J., NOT PARTICIPATING. KITCHENS, JUSTICE, CONCURRING IN RESULT ONLY: ¶27. The m ajority is correct in r eversing the grant of sum m ary judgm ent to Mike Rozier Construction Com

pany , Inc. But I respectf

ully concur only in the Court’s result. ¶28. This Court h a s h e l d t h a t , “ a s b e t w een the builder-vendor of a new hom e and his vendee there i s a n im

plied w arranty that the hom e w as built in a workm anlike m anner and that it is suitable f

or habitation.” Brown v

. E l t o n C h a l k , Inc. , 358 So. 2 d 721, 722 (Miss. 1978). As the m ajority recognizes, “[ t]he rule required the party t o ‘allege i n his declaration

. . . that (1) the house is new; and (2) that the plaintif f was the f

i rst purchaser.’” Maj. Op. ¶16 (quoting Brown , 358 So. 2d at 722). The m ajority adopts the ra t i o n a l e o f the Arizona Suprem e Court that , “ i n determ ining whether a p arty constitutes a b uilder-vendor, Mississippi’s overarching policy i s to vitiate sham transactions t hat would deny relief to the innocent purchaser o f n e w c onstruction.” Maj. Op. ¶18 (citing Lofts at Fillm ore Condo. Ass’n v. Reliance Com m ercial Constr., Inc. , 190 P.3d 733, 736 (Ariz. 2008)).

1 4¶29. The m ajority reverses the ju d g me n t a n d r e ma n d s t h i s c a s e w i th the f ollowing instruction to the trial court: Should the trial court f

i nd that the builder-vendor c l a ssif i cation applies to Rozier Construction, its a rgum ent that it disclosed the def ective subsoil conditions beneath the parking lot to D.G. Gluckstadt, and t hat D.G. Gluckstadt waived the use of particular im provem ents to c o m

b at the subsoil def ects, m u st f ail. However, if

the trial court were to f

ind the builder-vendor classif i cation inapplicable to D.G. Gluckstadt, then the disclosure and w aiver were ef f e ctive and dism issal is appropriate. Maj. Op. ¶20. Further, according to the m ajority , “ [ o]n rem and, the trial court should

c o n sider whether the builder-vendor c ontext applies to the relationship between Rozie r Construction Com

p any and D.G. Gluckstadt.” Maj. Op. ¶20. But the i ssue s ub j udice is not,

as the m ajority f

inds, “whether Rozier C o n s t r uction and D.G. G luckstadt have a buildervendor relationship.” Maj. Op. ¶24. Under Mississippi law, t he concept o f builder-vendor is

not a “relationship,” b ut rather a classif ication. Thus, the issue is whether D.G. Gluckstadt’s and Rozier’s alleged relationship violates Mississippi’s pu b l i c policy against sham transactions that would deny r elief to th e i n n o c e n t purchasers o f new construction and, as such, whether the builder-vendor classif ication applies t o im

p ute D.G. Gluckstadt’s duty to Rozier to construct in a workm anlike m anner. ¶30. The c o mmo n l a w b u i l d e r - v e n d o r r ule protects innocent f

irst purchasers of

new

c o nstruction. Brown , 358 So. 2d at 722. T his Court has extended the d uty to construct a “hom e in a w orkm anlike m anner and to construct a hom e which i s suitable f or habitation,”

to subsequent purchasers. Keyes v. Guy Bailey H o m e s, I n c. , 439 So. 2d 670, 673 (Miss. 1983). And t he m ajority today correctly e x tends t he b uilder-vendor c lassif i cation to

1 5Mississippi’s com m ercial c lass. Maj. Op. ¶19. In light o f Mississippi’s public policy interest,

and in the spirit of Keyes , I would expand the rule f urther t o i m

p u te the builder-vendor classif ication to entities contrived solely f o r the purpose of artif

ice. ¶31. To assert that the builder-vendor classif ication applies to D.G. G l uckstadt and Rozier, Stribling m

us t h ave a lleged, which it did, (1) that the c o nstruction is new, and (2) that Stribling was a f

irst or subseq uent innocent purchaser af ter com pletion of the allegedly negligent construction. See Brown , 358 So. 2d at 7 22; Keyes , 439 So. 2d at 673. The trier of f act m ust then determ ine whether Rozier is a builder-vendor in light o f its alleged status as

an alter ego f

or D.G. Gluckstadt. See Park v. Sohn , 4 33 N.E. 2d 651, 6 55 (I l l. 1982) (“Courts have def

i ned the builder-vendor as one who is engaged in the business of building,

so that t he sale is of a com m ercial nature, rather than a casual or personal o ne.”); Luana Sav. Bank v . Pro-Build Holdings, Inc. , 856 N.W

. 2d 892, 897 (Iowa 2014) (quoting Elderkin v. Gaster , 288 A.2d 771, 774 n.10 (Pa. 1972)) (“A builder-vendor

. . . ref e r s to o ne who buy s land and builds hom es upon that land f or purposes of sale to the general public.”); Hoke v. Beck , 587 N.E. 2d 4, 7 (Ill. 1992) (“W hether a def endant i s a builder-vendor f o r t he purpose of the warranty is a question of f act to be determ i ned on a case-by -case basis.”). If the trier of f act d eterm i nes t hat the com panies are, in essence, one and the s am e, the builder-vendor rule applies. T hen, as between Rozier and Stribling, a duty of workm a nlike construction exists, a n d Stribling m ay proceed w ith its claim that such duty was breached. Brown , 358 So. 2d at 722.

1 6¶32. Because a g e nuine issue of m aterial f act e x ists regarding whether t he builder-vendor classif ication applies, I would f ind only that t h e t rial court i m properly granted sum m ary judgm ent to Rozier. I theref o r e concur in result only

. KING, J., JOINS THIS OPINION. DICKINSON AND RANDOLPH, P.JJ., JOIN THIS OPINION IN PART.

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