Maynard, Justice, dissenting, in part, and concurring, in part:
I agree with the majority that a lender creates a special relationship with a
borrower when the lender maintains oversight of, or intervenes in, the construction process.
I also agree with the majority that once a special relationship is created, the lender must
disclose to the borrower any information that would be critical to the integrity of the
construction project. However, I do not believe that under the facts of this case, the bank
created the requisite special relationship with the Glascocks which necessitated disclosure
of the bank's second inspection report. Consequently, I concur, in part, and dissent, in part,
to the majority opinion.
Initially, I note that the majority opinion details at least eight independent
inspections which the Glascocks instituted. The bank's second inspection, performed by
Robert Lemon, was completed after the Glascocks' third inspection was completed by
Structural Concepts. The Glascocks had five inspections performed following the bank's
second and final inspection. It appears to me that the Glascocks certainly should have had
the same information available to them independent of the bank's report. In fact, the bank's
second inspection was completed in October 1995. The Glascocks had inspections
performed in November 1995 and in December 1995.
There is no evidence presented in this case that would lead to a conclusion that
the Glascocks had an agreement with the bank whereby they would rely on the bank's
structural inspections to uncover defects in the construction of the house. In fact, the
Glascocks signed a document which stated, “Inspections required with respect to this loan
are solely for the bank's benefit; borrowers shall receive no comfort or rights with respect
to such inspections or bank's evaluation thereof.”
Under these circumstances, I simply cannot find that a special relationship
exists between the Glascocks and the bank. I believe the circuit court properly granted
summary judgment to the bank.