No. 85-7658.

821 F.2d 590 (1987)

L.A. DRAPER & SON, INC., Plaintiff-Appellant, v. WHEELABRATOR-FRYE, INC., a corporation; Hessco Industrial Supply, Inc., a corporation; Fred Z. Hester, an individual, Joseph E. O'Callaghan, an individual, Defendants-Appellees.

United States Court of Appeals, Eleventh Circuit.

July 15, 1987.

Attorney(s) appearing for the Case

Thad G. Long, Bradley, Arant, Rose & White, Jere F. White, Jr., Birmingham, Ala., for plaintiff-appellant.

L. Vastine Stabler, Jr., Cabaniss, Johnston, Gardner, Dumas & O'Neal, Birmingham, Ala., L. Murray Alley, for Wheelabrator-Frye, Inc. & Hessco.

Ralph D. Gaines, Jr., Gaines & Cleckler, P.C., Talledega, Ala., Charlie P. Gaines, for Hester.

Before HILL and HATCHETT, Circuit Judges and THOMAS, Senior District Judge.


(Opinion March 27, 1987, 11 Cir., 813 F.2d 332)


On petition for rehearing the appellant, L.A. Draper & Sons, Inc., moves this court to clarify its disposition of the case with respect to defendant Hessco Industrial Supply, Inc., a corporation. After closely examining the record we have determined that neither the district court nor this court ever treated the claims against Hessco as separate from the claims against Hessco's founder, Fred Z. Hester. Thus, no determination has been made regarding the degree to which Hessco's potential liabilities and defenses may be differentiated from Hesters. Such a determination must be made in the first instance in district court. Accordingly, we clarify our earlier opinion by vacating the district court's judgment in favor of Hessco and remanding the claims against Hessco to the district court for further proceedings, not inconsistent with the panel opinion in this case, 813 F.2d 332 (11th Cir.1987).

In all other respects the petition for rehearing is DENIED.


* Honorable Daniel H. Thomas, Senior U.S. District Judge for the Southern District of Alabama, sitting by designation.


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