UNPUBLISHED

UNITED STATES COURT OF APPEALS
               FOR THE FOURTH CIRCUIT


C. WAYNE BASORE,                      
               Plaintiff-Appellant,
                v.
WAL-MART STORES, INCORPORATED,
             Defendant-Appellee,                No. 00-1233

               and
DYER WOOD, INCORPORATED,
                      Defendant.
                                      
           Appeal from the United States District Court
        for the Eastern District of Virginia, at Alexandria.
               Leonie M. Brinkema, District Judge.
                          (CA-99-90-A)

                     Argued: January 22, 2001

                     Decided: April 27, 2001

  Before WILKINS, MICHAEL, and TRAXLER, Circuit Judges.



Vacated in part and remanded by unpublished per curiam opinion.


                           COUNSEL

ARGUED: David John Fudala, Fairfax, Virginia, for Appellant. Wil-
liam Beverley Tiller, MORRIS & MORRIS, P.C., Richmond, Vir-
ginia, for Appellee.
2                    BASORE v. WAL-MART STORES
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

   C. Wayne Basore brought a personal injury action against Wal-
Mart Stores, Inc., alleging that Wal-Mart was negligent and had
breached the implied warranty of merchantability by selling him a
defective bar stool. The district court entered summary judgment in
favor of Wal-Mart on both claims, and Basore appeals the grant of
summary judgment on the breach of warranty claim. Because the
issue of whether Basore has a claim for breach of the implied war-
ranty of merchantability requires further consideration, we will
remand the case to the district court.

                                   I.

   Basore operates a business that liquidates the assets of bankrupt
companies. In 1996 he was hired by Minnesota Mining and Manufac-
turing Co. (3M) to liquidate certain collateral (crystal) reclaimed from
a company that 3M had financed. Basore was to sell the crystal at
retail, so he rented store space in Fairfax, Virginia, for that purpose.
Basore realized that he needed a stool for his own use at the cash reg-
ister while he conducted the liquidation sale, and on October 31,
1996, he went to a Wal-Mart store in Fairfax and bought a wooden
bar stool. The stool, which was manufactured by Dyer Wood, Inc.,
did not require any assembly. Dyer Wood’s limited warranty was
attached to the underside of the seat cushion. It provided that the stool
was for "residential use only" and that use in a commercial establish-
ment voided all express and implied warranties. The limited warranty
disclaimed any express warranties and limited all implied warranties
to six months from the date of purchase. The sole remedy provided
for under the limited warranty was "repair or replacement of a defec-
tive stool at the option of Dyer Wood."

   On November 10, 1996, within two weeks of the purchase, the bar
stool collapsed while Basore was tallying sales at the end of the day.
                     BASORE v. WAL-MART STORES                        3
Basore hit his head on the concrete floor and suffered personal inju-
ries. He filed a motion for judgment against Dyer Wood and Wal-
Mart in Fairfax County Circuit Court, alleging negligence and breach
of the implied warranty of merchantability. Wal-Mart removed the
action to federal court on the basis of diversity of citizenship. Dyer
Wood was then dismissed from the case because Basore failed to
serve that company with a copy of the summons and complaint.

   Wal-Mart moved for summary judgment, arguing that Basore did
not allege any independent act of negligence by Wal-Mart and that
Basore’s use of the chair in a commercial setting voided any war-
ranty. The district court granted Wal-Mart’s motion. On the negli-
gence claim the court accepted Wal-Mart’s argument that it had no
duty to inspect the bar stool for defects. On the breach of warranty
claim the court reasoned that Wal-Mart was not liable because it does
not issue any kind of warranty on the products it sells. Specifically,
the court considered Dyer Wood’s limited warranty irrelevant because
it was not issued by Wal-Mart. Basore appeals the district court’s
grant of summary judgment to Wal-Mart on his breach of implied
warranty claim.

                                  II.

   We review a grant of summary judgment de novo. See Marshall v.
Cuomo, 

, 478 (4th Cir. 1999). Summary judgment is
appropriate if there is no genuine issue of material fact and the mov-
ing party is entitled to judgment as a matter of law. See Fed. R. Civ.
P. 56(c). We view the facts in the light most favorable to the nonmo-
vant, drawing all inferences in his favor. See Masson v. New Yorker
Magazine, Inc., 

, 520 (1991); Anderson v. Liberty Lobby,
Inc., 

, 255 (1986).

   Basore argues on appeal that the district court, in granting Wal-
Mart’s motion for summary judgment, did not adequately analyze his
claim that Wal-Mart breached the implied warranty of merchanta-
bility. For the reasons that follow, we believe that further consider-
ation of that issue is required.

  Under Virginia law "a warranty that the goods shall be merchant-
able is implied in a contract for their sale if the seller is a merchant
4                    BASORE v. WAL-MART STORES
with respect to goods of that kind." Va. Code Ann. § 8.2-314(1). For
goods to be merchantable, they must be "fit for the ordinary purposes
for which such goods are used." 

also Bayliner
Marine Corp. v. Crow, 

, 503 (Va. 1999). Subject to
certain requirements, a seller can exclude or modify the implied war-
ranty of merchantability. See Va. Code Ann. § 8.2-316.

   In his complaint Basore stated a claim for breach of the implied
warranty of merchantability. In its summary judgment papers Wal-
Mart argued that under the terms of the limited warranty attached to
the bar stool, Basore’s use of the stool in a commercial setting voided
all implied warranties. In his written response Basore denied that he
was using the stool for a commercial purpose. Rather, Basore con-
tended that he was making personal use of the stool because he was
the only one who sat on it. Furthermore, Basore argued that the lim-
ited warranty was ineffective because it was placed on the underside
of the seat cushion, which is not conspicuous as required by Virginia
law. See Va. Code Ann. § 8.2-316 ("[T]o exclude or modify the
implied warranty of merchantability or any part of it the language . . .
must be conspicuous . . . ."); 

"conspicu-
ous" as "so written that a reasonable person against whom it is to
operate ought to have noticed it").

   At the oral argument on Wal-Mart’s motion for summary judg-
ment, the district court asked Basore’s counsel to explain the breach
of warranty theory. Counsel repeated the arguments made in his writ-
ten response. The court then asked whether Wal-Mart "puts out any
kind of a warranty about its products." Because Basore’s counsel
answered that Wal-Mart did not issue "any independent warranties,"
the court entered summary judgment in favor of Wal-Mart on
Basore’s implied warranty of merchantability claim. However, the
fact that Wal-Mart did not issue any sort of written warranty does not
mean that there is no warranty of merchantability on the bar stool.
Again, the warranty of merchantability is implied "if the seller is a
merchant with respect to goods of that kind." Va. Code Ann. § 8.2-
314(1). Because the warranty of merchantability is an implied war-
ranty, we remand for further proceedings on the claim based on that
warranty. The district court might wish to begin with a reconsidera-
tion of Wal-Mart’s motion for summary judgment on Basore’s claim
that Wal-Mart breached the implied warranty of merchantability. We
                    BASORE v. WAL-MART STORES                      5
express no opinion on the merits of either side’s arguments with
respect to this claim.

   The summary judgment is vacated to the extent that it awarded
judgment to Wal-Mart on Basore’s implied warranty of merchanta-
bility claim. The case is remanded for further proceedings consistent
with this opinion.

                            VACATED IN PART AND REMANDED