REL:04/02/2004 SHIV-RAM V. McCALEB (Rehearing)
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 242-4621), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2003-2004
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Shiv-Ram, Inc., d/b/a Ramada Inn of Anniston
v.
Appeal from Calhoun Circuit Court
HARWOOD, Justice.
The Business Council of Alabama, Alabama Bankers Association, Alabama Civil Justice Reform Committee, and Automobile Dealers Association of Alabama, Inc., jointly filed a brief on application for rehearing as amici curiae. For the most part, that brief urged some of the same arguments Shiv-Ram presented in its rehearing brief, and we are denying its application for rehearing. With respect to a concern of amici curiae that our original opinion might be susceptible to misinterpretation on a particular issue, and their request that this Court clarify that issue so as to remove that concern, the Court deems it appropriate to furnish the requested clarification. Amici curiae are apprehensive that our original opinion might be misconstrued as implying that "the contractual right to inspect the premises and records prior to the closing -- to perform 'due diligence'" (brief of amici curiae, p. 3) could give rise to a duty or obligation on the part of a purchaser to inspect. Amici curiae acknowledge that they understand why that is not actually the case, in the context of the specific appellate review we were called upon to undertake, but they request clarification nonetheless, as follows:
"Amici understand that Shiv-Ram did not, in this appeal, raise, argue, or brief the underlying retroactive duty issue for wantonness and[,] thus, none of these issues were (or could have been) addressed by the Court. See Shiv-Ram Reply Br. at 1 ('[W]hether or not Shiv-Ram was negligent or wanton in failing to inspect the motel in question is simply not at issue on this appeal....'). Amici are not asking that the Court address issues not properly preserved. Amici ask only that the Court clarify that the issue of whether contractual due diligence rights gave rise to a duty in tort was not challenged on appeal and[,] thus, the Court did not hold that such a duty exists."
We hereby provide the requested clarification, by confirming that the issue whether contractual due-diligence rights gave rise to a duty in tort was not raised in this appeal; consequently, we did not hold, implicitly or otherwise, that such a duty exists.
APPLICATION OVERRULED.
Lyons, Johnstone, and Woodall, JJ., and Gordon, Special Justice,* concur.
Houston and Stuart, JJ., concur in the opinion issued on rehearing, but dissent from overruling the application for rehearing.
See and Brown, JJ., dissent.
*Retired Circuit Judge William R. Gordon was appointed on November 14, 2003, to be a Special Justice in regard to this appeal.