concurring specially.
Since the majority recognizes a nondelegable “right and duty for builder-sellers to direct and control the work of those [subcontractors] employed by them to the extent that an ordinarily prudent builder would exercise such direction and control to build a fit and workmanlike [residential] structure,” (majority opinion, ante, p. 721), it is not necessary to consider whether such a duty exists under OCGA § 51-2-5 (3). Accordingly, I concur fully in Division 1 and the reversal of summary judgment in Case No. A95A1853. I also concur fully in Division 2 and the absence of strict liability against the defendant builder-sellers. In Case Nos. A95A1854 and A95A1855,1 fully concur with Division 3 that there is no evidence that cross-defendant Douglas L. Singletary, the carpenter subcontractor, was negligent when he nailed the bathroom wall baseboard or shoe molding, thereby piercing the unprotected or inadequately protected water pipe behind the sheetrock. Consequently, summary judgment was correctly granted to him. With respect to cross-defendant R & R Plumbing, Inc., it remains my view that the defense of failure to file an OCGA § 9-11-9.1 expert’s affidavit can be raised for the first time in a motion under OCGA § 9-11-12 (b) (6), under the holding of Hewett v. Kalish, 264 Ga. 183, 184 (1), 185 (442 SE2d 233). Consequently, I concur in the judgment only with respect to the partial reversal of summary judgment as to R & R Plumbing, Inc.