                                 United States Court of Appeals,

                                         Eleventh Circuit.

                                           No. 96-6736.

 FOLSOM METAL PRODUCTS, INC., an Alabama Corporation, Plaintiff-Counter-Defendant-
Appellee,

        RBOP Tools International Inc., Texas Corporation, Intervenor-Plaintiff-Appellee,

                                                 v.

         TORUS EQUIPMENT COMPANY, Defendant-Counter-Claimant-Appellant.

                                           July 24, 1997.

Appeal from the United States District Court for the Northern District of Alabama (CV 94-L-988-S
SHL); Seybourn H. Lynne, Judge.

Before BIRCH and CARNES, Circuit Judges, and GODBOLD, Senior Circuit Judge.

       PER CURIAM:

       The petition for rehearing by RBOP Tools International Inc. asserts that the district court

addressed the issue of whether RBOP was subject to liability as a successor in interest to Folsom

Metal Products, Inc. and held it was not subject to such liability. Therefore, RBOP says, the panel

erred in holding that the district court had not addressed that issue and in remanding that issue for

consideration.

       The district court referred to successor liability of RBOP in the context of its determination

of whether Folsom was responsible to Torus Equipment Co. for more than 5% of $2,100,000 (a 5%

that Folsom agreed it must pay). The district court's barebones order held Folsom had no further

contract obligation beyond the 5% and there were "no further contract obligations" owed to Torus

by RBOP or any other successor in interest.

       We do not construe the district court's decision as a plenary determination that RBOP could

not be subject to successor liability for obligations of Folsom to Torus but rather as a limited

decision relating to Torus' claims for more than 5%, i.e., "Folsom doesn't owe anything more than

5% and RBOP can't have successor liability for something Folsom doesn't owe." If the district court

intended to confer on RBOP a status of freedom from any successor liability, the record does not
support such a ruling at the summary judgment stage.

       Additionally the district court did not focus at all on whether if RBOP were a successor in

interest to Folsom it might be responsible for Folsom's obligation to pay 5% of $2,100,000.

       We neither whisper nor hint what we think the determination should be on whether RBOP

has successor liability. But it is an issue alive and well to be considered on remand. If RBOP is

found to be a successor, it is for the district court in the first instance to decide whether it has

successor liability for the 5% of $2,100,000 that Folsom acknowledges it owes, or for additional

amounts, if any, found to be owed by Folsom, or both.

       The petition for rehearing is DENIED. The summary judgments in favor of Folsom and

RBOP are REVERSED and the case is REMANDED to the district court for further proceedings

not inconsistent with our opinion and with this order.
