IN THE SUPREME COURT OF MISSISSIPPI 2013 CA STRIBLING INVESTMENTS, LLC. Appellant VS. MIKE ROZIER CONSTRUCTION COMPANY, INC.

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1 E-Filed Document Mar :26: CA SCT Pages: 8 IN THE SUPREME COURT OF MISSISSIPPI 2013 CA STRIBLING INVESTMENTS, LLC Appellant VS. MIKE ROZIER CONSTRUCTION COMPANY, INC. Appellee RESPONSE OF APPELLANT, STRIBLING INVESTMENTS, LLC, IN OPPOSITION TO MOTION FOR REHEARING On Appeal from the Circuit Court of Madison County, Mississippi Cause No. CI JE MARK D. HERBERT (MB No. 2370) BRADFORD C. RAY (MB No ) JONES WALKER LLP 190 E. Capitol Street, Suite 800 P.O. Box 427 Jackson, MS Telephone: (601) mherbert@joneswalker.com bray@joneswalker.com Attorneys for Appellant {JX }

2 IN THE SUPREME COURT OF MISSISSIPPI 2013 CA STRIBLING INVESTMENTS, LLC APPELLANT VS. MIKE ROZIER CONSTRUCTION COMPANY, INC. APPELLEE CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the justices of the Supreme Court and/or judges of the Court of Appeals may evaluate possible disqualification or recusal. 1. Stribling Investments, LLC, Appellant; 2. Mark D. Herbert, Attorney for Appellant; 3. Bradford C. Ray, Attorney for Appellant; 4. Mike Rozier Construction Company, Inc., Appellee; 5. Greg Copeland, Attorney for Appellee. So certified this, the 22 nd day of March /s/ Mark D. Herbert Mark D. Herbert Attorney of Record for Appellant {JX } i

3 TABLE OF CONTENTS Page Certificate of Interested Persons... i I. Waiver...3 II. Freedom of Contract...3 III. Claims Not Pursued By Stribling...4 IV. The Opinion Does Not Leave Stribling In A Precarious Place...4 CONCLUSION...4 {JX } 1

4 TABLE OF AUTHORITIES Page Mississippi Rule of Appellate Procedure {JX } 2

5 COMES NOW the Appellant, Stribling Investments, Inc. and submits its Response in Opposition to the Appellee s Motion for Rehearing. I. WAIVER. As noted by the Mississippi Rule of Appellate Procedure 40, motions for rehearing are for the sole purpose of bringing to the Court s attention points of law or fact which the court has overlooked or misappropriated. Rozier s motion does neither. Rozier s primary arguments on waiver attempt to supplement and add new arguments to the as is claims it asserted on its original briefs. These are arguments that Rozier could have and should have made in its original response. That there was as is or waiver clauses in the purchase agreement were well known to Rozier. The fundamental principal which Rozier argues, that there were provisions in the real estate contract between Stribling and D.G. Gluckstadt that might bar Stribling s claims, whether as is or waiver clauses, was argued extensively by Rozier, and dealt with by the Court in its opinion. See Opinion 21. The fact that one might be called an as is clause and the other a waiver clause is of no consequence. II. FREEDOM OF CONTRACT. Nothing in the Court s decision imperils the freedom of contract as Rozier so dramatically claims. It is always the duty of both the trial courts and, ultimately, this Court to construe contracts in light of the applicable law of Mississippi. This is exactly what this Court has done. It is also important to remember that Rozier created its own dilemma, which this Court noted, by premising much of its defense on an unwritten and very illusory oral agreement between Mike Rozier as the developer and Mike Rozier the builder. Rozier should now not be heard to complain that the Court has constructed this Agreement under prevailing Mississippi law. See Opinion 19. {JX } 3

6 III. CLAIMS NOT PURSUED BY STRIBLING Section III of Rozier s Motion is non sensical. Rozier does not now appear to challenge this Court s determination of the duty to warn as it knows that argument will fail. Instead, it asserts a new argument that it was the job of Stribling s experts to opine on the duty to warn. It was never the duty of Stribling s experts to opine on such duty. That is a legal question for this Court to decide, which it did. See Opinion 22. IV. THE OPINION DOES NOT LEAVE STRIBLING IN A PRECARIOUS PLACE While Stribling appreciates Rozier s concern with the legal and factual issues facing Stribling as it now proceeds in the trial court, such is no basis for rehearing this matter. This Court was very clear as to how this matter must proceed and there is no need to rehear this matter to clarify that. CONCLUSION Rozier has taken the opportunity with this Motion to assert new arguments it could have and should have made in its original briefs. That is not the purpose of such a motion under M.R.A.P. 40. Furthermore, this Court was very clear that its decision was very fact driven. See Opinion 24. It will be up to the parties and the trial court to lay out the legal and factual issues to be heard at trial. Finally, and most importantly, this Court s decision recognized the fundamental injustice of Rozier s agreement with itself to attempt to insulate itself from responsibility for knowingly constructing a defective parking lot. This Court s decision was just and proper under the facts and law. There is no need for a rehearing. {JX } 4

7 This the 22 nd day of March, Respectfully Submitted, STRIBLING INVESTMENTS, LLC BY: /s/ Mark D. Herbert MARK D. HERBERT OF COUNSEL: Mark D. Herbert (MSB No. 2370) Bradford C. Ray (MSB ) Jones Walker LLP 190 East Capitol Street, Suite 800 (39201) Post Office Box 427 Jackson, Mississippi Telephone: (601) Facsimile: (601) {JX } 5

8 CERTIFICATE OF SERVICE I, Mark D. Herbert, do hereby certify that a true and correct copy of the RESPONSE OF APPELLANT, STRIBLING INVESTMENTS, LLC, IN OPPOSITION TO MOTION FOR REHEARING was sent, via ECF notification, on March 22, 2016 to the following interested party: Greg Copeland, Esq. gcopeland@cctb.com Attorney for Appellee I certify that a true and correct copy of the brief and Appellant s Record Excerpts was mailed today to: Honorable John H. Emfinger Rankin County Circuit Court Judge P. O. Box 1885 Brandon, MS Trial Court Judge This the 22 nd day of March, BY: /s/ Mark D. Herbert MARK D. HERBERT {JX } 6