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Holifield v. City Salvage, Inc.

Court of Appeals of Mississippi

February 28, 2017

KENT HOLIFIELD AND LAURIE HOLIFIELD APPELLANTS
v.
CITY SALVAGE, INC. APPELLEE

          DATE OF JUDGMENT: 08/11/2015

         JONES COUNTY CIRCUIT COURT, HON. WAYMAN DAL WILLIAMSON TRIAL JUDGE

          ATTORNEY FOR APPELLANTS: STEPHEN W. MULLINS.

          ATTORNEYS FOR APPELLEE: EDWARD C. TAYLOR JOSHUA POWELL GARROTT KATIE RYAN VAN CAMP.

          BEFORE IRVING, P.J., FAIR AND WILSON, JJ.

          WILSON, J.

         ¶1. This appeal involves homeowners' claims against a building materials supplier that sold defective Chinese drywall that was used in the construction of their home. The circuit court granted summary judgment for the supplier based on the "innocent seller" provision of the Mississippi Products Liability Act (MPLA). Miss. Code Ann. § 11-1-63(h) (Rev. 2014). The circuit court correctly concluded that, as a matter of law, the supplier was an "innocent seller" within the meaning of the MPLA. Therefore, we affirm.

         FACTS AND PROCEDURAL HISTORY

         ¶2. In April 2006, the M/V Sanko Rally departed from port in Qingdao, China, with a large cargo of Chinese drywall. The Sanko Rally encountered rough seas, and upon arrival in Pensacola, Florida, about fifty-five percent of its cargo was deemed damaged. The drywall manufacturer's insurer sold some part of the drywall to Pensacola Stevedore Company, which resold some part to third-party defendant Gulf Coast Shelter Inc. ("Gulf Coast"). Between 2006 and 2008, Gulf Coast resold some of the drywall to defendant-appellee City Salvage Inc., a building materials supplier in Laurel. In 2008, City Salvage resold some of the drywall to defendant Ronny Hill Construction Inc. ("Ronny Hill"), a contractor in Laurel. Ronny Hill used some of the drywall in a home that it built for plaintiffs Kent and Laurie Holifield.

         ¶3. In October 2011, the Holifields discovered that the drywall in their home was made in China. The Holifields allege that their drywall exhibits defects now known to be common in drywall manufactured in China during the relevant period, i.e., it contains elevated levels of sulfur and other substances, which result in the emission of smelly gasses that corrode copper piping and wiring and can cause serious health problems. See In re Chinese Manufactured Drywall Prods. Liab. Litig., 706 F.Supp.2d 655, 663-66 (E.D. La. 2010). In March 2013, the Holifields filed a "shotgun complaint, "[1] asserting numerous claims against Ronny Hill, City Salvage, and unknown manufacturers and distributors of the drywall. In June 2013, City Salvage answered and filed a third-party complaint against Gulf Coast, in which it alleged that it had no knowledge of the alleged defects in the drywall and that it was entitled to indemnification from Gulf Coast for any liability to the Holifields.

         ¶4. On April 24, 2015, City Salvage moved for summary judgment, arguing that it was immune from liability as an "innocent seller" pursuant to the MPLA. On July 23, 2015, the Holifields filed their response in opposition to City Salvage's motion, and a hearing on the motion was held on July 27, 2015. The circuit court ruled that City Salvage was an "innocent seller" under the MPLA, granted summary judgment for City Salvage, and certified its ruling as final pursuant to Mississippi Rule of Civil Procedure 54(b). This appeal followed.

         DISCUSSION

         I. Standard of Review

         ¶5. "We review the grant or denial of a motion for summary judgment de novo, viewing the evidence in the light most favorable to the party against whom the motion has been made." Karpinsky v. Am. Nat'l. Ins., 109 So.3d 84, 88 (¶9) (Miss. 2013) (quotation marks omitted). Summary judgment "shall be rendered . . . if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." M.R.C.P. 56(c). "Numerous[, ] immaterial facts may be controverted, but only those that affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Summers ex rel. Dawson v. St. Andrew's Episcopal Sch., 759 So.2d 1203, 1208 (ΒΆ12) (Miss. 2000) (quotation marks omitted). In addition, the nonmovant "may not rest upon ...


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