Nathan Rodgers Construction & Realty Corp. v. City of Saraland, Alabama, a Municipal Corporation

ON PETITION FOR REHEARING

GODBOLD, Chief Judge:

Appellant correctly notes that we requested supplemental briefs on its contention made for the first time in oral argument that the statute of limitations was tolled while its state judicial remedies were being exhausted. The tolling argument made to us was not, however, clearly addressed to the district court. Although that court used the term “tolling,” appellant’s contention before the district court was really an accrual argument, namely, that the cause of action had not accrued because of continuing harm.

Absent plain error we would not…