Stribling Investments, LLC v. Mike Rozier Construction Company, Inc.
189 So. 3d 1216
Miss.2016Background
- D.G. Gluckstadt, LLC (formed by Mike Rozier and son) purchased land, built a Dollar General store and parking lot using Rozier Construction (no written contract), then sold the completed project to Stribling Investments, LLC and assigned the lease.
- Dollar General provided prototype plans and required compliance; a preconstruction geotechnical report (Ladner) recommended certain earthwork/paving, but Rozier Construction deviated, placing 3–8 feet of fill without moisture testing or geotextile/rebar.
- D.G. Gluckstadt’s project budget and Rozier’s deposition suggest awareness of options/costs, but no documentary evidence shows Rozier warned or obtained an informed waiver from D.G. Gluckstadt; Rozier owned both entities.
- Stribling bought the property “as-is,” received a pre-purchase visual inspection (no defects noted), later found parking-lot failure attributable to Yazoo clay; Stribling sued Rozier Construction for negligent design/construction.
- Trial court granted summary judgment for Rozier, finding no duty owed; Mississippi Supreme Court reversed and remanded, holding a factual question exists whether Rozier and D.G. Gluckstadt qualify as a builder-vendor, which would prevent imputation of a waiver and could defeat the "as-is" defense.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rozier/D.G. Gluckstadt qualify as a builder-vendor (so duties to first purchaser survive) | Rozier and D.G. Gluckstadt are effectively the same actor (owner overlap and purpose-built entity), so Stribling is the first purchaser and entitled to protection | There was an oral contract and D.G. Gluckstadt knowingly approved a cheaper construction method; any waiver/notice from D.G. binds assignee | Remanded: existence of a builder-vendor relationship is a material factual issue for trial; if found, waiver/notice defense fails |
| Whether the sales contract "as‑is" clause bars Stribling's claim | "As‑is" cannot insulate a builder-vendor from the affirmative duty to disclose known soil defects to the first purchaser | The "as‑is" clause and any informed waiver by D.G. Gluckstadt bar recovery | Remanded: if builder-vendor applies, the duty to disclose survives the "as‑is" clause; if not, "as‑is"/waiver may bar suit |
Key Cases Cited
- Keyes v. Guy Bailey Homes, 439 So.2d 670 (Miss. 1983) (recognizes implied warranty/workmanlike construction for homebuilders)
- Brown v. Elton Chalk, Inc., 358 So.2d 721 (Miss. 1978) (builder-vendor rule requires plaintiff to allege new construction and first purchase)
- Pike v. Howell Bldg. Supply Co., Inc., 748 So.2d 710 (Miss. 1999) (contractor duty to disclose subsoil defects; waiver by owner can defeat claim)
- George B. Gilmore Co. v. Garrett, 582 So.2d 387 (Miss. 1991) (builder responsibility for soil-caused defects; duty to disclose)
- Lofts at Fillmore Condo. Ass'n v. Reliance Commercial Constr., Inc., 190 P.3d 733 (Ariz. 2008) (policy against sham transactions; builder-vendor concept extends beyond traditional models)