By petition for rehearing filed by the appellee, and the appellants’ response, both parties seek a clarification of this Court’s original opinion dated October 3, 1984.
The appellee argues that clarification is needed to settle the question of whether the bed capacity of the two nursing homes, and the certificate of need, is an “asset” of the nursing home business which belongs to the appellants. The appellants respond, contending that the issue was not fully developed at trial, and that the case should be remanded for further proceedings. We agree with the appellants’ position. This present dispute is one of the principal reasons we remanded the case to the chancellor.
The trial and appeal of this case involved two issues: first, whether the chancellor was correct in his ruling regarding the validity of the option to renew. We held that the chancellor correctly found the option to renew void. The second issue involved the chancellor’s injunction prohibiting the appellants from taking certain actions. The decree states:
3. The lessees under said lease are obligated to operate the leased premises as nursing homes and are not authorized to relocate to other premises the beds allocated to the leased premises.
Further, the decree states that the lease expires June 4, 1983.
Neither the issue concerning the validity of the option, nor the decision that the lease expired June 4, 1983, is raised by either party on rehearing. Neither this Court, nor the trial court, was asked to determine the respective rights and obligations of the parties once the lease terminated. The appellants did not develop the point because they were arguing that they controlled the bed capacity during the term of the lease. The appellee argued that the appellants could not, during the lease, apply for a new certificate of need and transfer the bed capacity to another nursing home, as such a transfer would violate the terms of the lease.
We originally remanded the case so that the chancellor could, if necessary, enter orders to ensure an orderly transition. If the parties cannot agree on the ownership of assets, or even what those assets are, such orders by the chancellor obviously will be necessary.
We did not intend, nor attempt, in our original opinion, to define what the business assets were, nor, for example, what items were fixtures or personalty. That is a task for the chancellor, if the parties cannot agree. The record is not fully developed and that issue was not tried below.
Because the judges in the division which originally decided this case are not unanimous in this supplemental opinion, it is issued by the Court sitting en banc.
The petition for rehearing is denied.
Corbin, J., not participating.