SMITH, Justice.
J. Gregory Kennedy appeals from a judgment in favor of Boles Investment, Inc. ("BI"), and Ian Boles ("Boles") in an action stemming from the sale of real property in Baldwin County. We affirm.
Kennedy owned a 1.55-acre parcel of beachfront property in Orange Beach ("the property"). In April 2004, Boles and Kennedy entered into a contract for Boles to purchase the property ("the purchase agreement"). Before the closing, on July 2, 2004, Boles assigned the contract to BI, a Delaware corporation he solely owned.
The purchase price of the property was $3.7 million. BI paid Kennedy $370,000 as an initial down payment, and BI executed a promissory note in favor of Kennedy for $3.33 million. The terms of the note required a monthly interest payment of $16,650 for five years and then a balloon payment of the principal, $3.33 million, would be due on July 2, 2009. Relevant to this appeal, the promissory note contains a prepayment provision, which states: "[BI] may prepay this Note, in its entirety, including all interest and principal then due, upon payment of a penalty equal to five percent (5.0%) of the amount being prepaid."
On the day of the closing, BI was not qualified to do business within the State of
Under the terms of the purchase agreement, Kennedy deeded the property to BI but reserved a vendor's lien deed for the property until the note was paid off. Kennedy testified that as part of the sale of the property Boles also orally agreed to give Kennedy a right of first refusal to repurchase the property. Boles denies that he gave Kennedy a right of first refusal.
In April 2005, an individual named Rex Hall contracted with BI to purchase the property for nearly $16 million. BI and Boles assert that Hall sought to assemble purchase contracts on several adjoining properties for the development of condominiums and that the purchase price of $16 million was consistent with the appraised value of the property under a multifamily-zoning classification (at that time the property was classified as "RS-1"). The agreement provided Hall with a 45-day due-diligence period in which he could terminate the agreement in his absolute discretion. During this 45-day period Boles told Kennedy that BI had entered into an agreement to sell the property and that BI planned to prepay the promissory note in the near future. Boles testified that when he told Kennedy of the agreement to sell the property, Kennedy became agitated and stated that he needed "to make some more money out of that deal." Boles further testified that Kennedy requested a copy of the agreement between BI and Hall "so that he could go to ... the purchasers, to get the money out of them," and said that "if that doesn't happen or if you don't pay me, then I'm going to have to get my lawyers involved."
A former employee of Wachovia Bank, Michael Tarlton, testified that the bank had approved Boles for a loan to pay off the note on the property. Tarlton testified that "[t]he credit underwriter notified me that the loan was approved, and I then notified Mr. Boles that the loan was approved." Tarlton further testified that the credit underwriter notified Boles's counsel that the bank had approved the loan and that "[t]he bank was ready to wire the money [on June 28 or 29, 2005]."
Counsel for BI and Boles faxed and mailed a letter dated June 29, 2005, to Kennedy's counsel stating, among other things, that BI and Boles had "secured alternate financing and will pay off Mr. Kennedy." The letter further states:
Presumably in response to this letter, Kennedy's counsel faxed counsel for BI and Boles a note on June 30, 2005, stating:
Boles never closed the loan with Wachovia or sent the prepayment tender to Kennedy.
The complaint Kennedy filed against BI and Boles in the Baldwin Circuit Court contained three counts. The first count alleged that BI had breached the post-closing agreement by failing to qualify to do business in the State of Alabama by July 31, 2004. The second count alleged that BI fraudulently induced Kennedy to enter into the purchase agreement by providing him an oral right of first refusal to repurchase the property. The third count alleged that BI had defaulted on "the security documents" and the post-closing agreement by failing to keep the property in good repair and condition. The same day, June 30, 2005, Kennedy filed in the Baldwin Probate Court a notice of lis pendens as to the property. See § 35-4-131(a), Ala.Code 1975.
BI and Boles filed nine counterclaims against Kennedy on July 8, 2005. The first counterclaim sought a "preliminary and/or permanent injunction" requesting that the trial court order BI to pay off the balance of the note, order Kennedy to accept the prepayment of the note, and order Kennedy or the clerk of court to release all "security instrument documents" related to the property. BI and Boles also asserted the following counterclaims against Kennedy: slander of title, breach of contract, tortious breach of contract, negligence, wantonness, tortious interference with business relations, extortion, and violation of the Alabama Litigation Accountability Act ("ALAA"). They sought compensatory and punitive damages under the counterclaims for tortious breach of contract, wantonness, tortious interference with business relations, and extortion; they sought compensatory damages under the counterclaims for slander of title, breach of contract, negligence, and violation of the ALAA.
Kennedy's counsel mailed and faxed a letter dated July 28, 2005, to counsel for BI and Boles stating, "Mr. Kennedy requests that all future payments or actual tenders made by your client be held in escrow in the Registry of the Court ... until the voidability issue can be addressed by the Court." The record indicates that BI and Boles did not comply with this request. BI made monthly interest payments to Kennedy from July 2004 to January 2006 via wire transfer or check. In January 2006, BI and Boles moved the trial court to order that the monthly interest payments be deposited with the clerk
BI's sale of the property to Hall ultimately fell through. BI and Boles assert that the sale fell through because the lis pendens disparaged BI's title to the property. After the sale to Hall was unsuccessful, BI transferred the property to Boles.
Boles and an entity known as WCI Communities, Inc. ("WCI"), executed a letter of intent on November 15, 2005, in which WCI indicated its intent to purchase the property for $16.5 million. An agreement was prepared that provided that Boles would convey clear title to the property. Boles testified that his counsel advised him not to sign the agreement "due to the title issue." The sale to WCI never took place. A former employee of WCI, Cameron Price, testified that he believed "WCI made the decision to walk away from the deal because of the cloud due to the lis pendens on Ian Boles's property and his— his verbal direction that he was not interested in curing that within a date certain time period." WCI later offered Boles $7 million for the property; Boles rejected the offer. WCI then offered Boles $8.5 million for the property if WCI could secure concessions from adjoining property owners; Boles rejected this offer also. The record is not clear on whether these offers also required resolution of the lis pendens issue. Price testified that the lis pendens on the property was a "deal killer."
Meanwhile, on August 12, 2005, Kennedy moved for a judgment (1) declaring the purchase agreement between Kennedy and BI void and (2) returning full title and possession of the property to Kennedy. Thereafter, BI and Boles moved for a summary judgment as to "any and all claims" asserted by Kennedy and on their counterclaim seeking injunctive relief. BI and Boles did not move for a summary judgment as to the remainder of the counterclaims they asserted against Kennedy.
The parties then filed a stipulation for a bifurcated trial, stating:
On January 11, 2006, after a hearing on Kennedy's declaratory-judgment motion and BI and Boles's summary-judgment motion, the trial court entered a one-page order, stating: "motion for summary judgment is granted re: declaratory judgment and injunctive relief in favor of defendants." The order further stated: "There being no just cause for delay this order is made final. The issues remaining for claims for damages are withheld for future ruling and trial." On January 24, 2006, Kennedy filed a notice of appeal. The trial court then entered an order on January 30, 2006, entitled "Amended Rule 54(b)[, Ala. R. Civ. P.,] Order Granting Summary Judgment for Defendants."
On February 17, 2006, counsel for Kennedy faxed and mailed counsel for BI and Boles a letter stating, "[E]nclosed please find our Notice of Foreclosure which will be advertised in the newspaper based on your client's default under the terms of the financing statement." BI and Boles then moved the trial court for an "injunction against foreclosure" noting that Kennedy had given notice that he would foreclose on the property. The trial court granted the motion in an order stating that "the pending foreclosure action by [Kennedy] is hereby enjoined and stayed pending the appeal and/or ruling by the Supreme Court of Alabama." From all that appears in the record, Kennedy never commenced foreclosure proceedings against BI and Boles.
On February 15, 2008, this Court affirmed the January 30, 2006, judgment of the trial court without an opinion. Kennedy v. Boles Inv., Inc. (No. 1050543, Feb. 15, 2008), 28 So.3d 37 (Ala.2008) (table). In the trial court, Kennedy then moved for leave to amend the complaint to add two counts. The first count alleged that BI had breached the promissory note for which Kennedy sought "a judgment in favor of Kennedy and against Boles for $3,350,000 as principal due on the Note, plus interest thereon from the date of the default forward, and a reasonable attorneys' fee of 15% of the Note principal plus expenses ...." The second count alleged that Boles had breached his personal guaranty for "payment of the obligation of [BI] to plaintiff Kennedy of the amount borrowed
The trial court tried Kennedy's claims alleging breach of the note and the personal guaranty and BI and Boles's remaining counterclaims in a two-day bench trial on October 27 and 28, 2008. During the trial the following individuals testified: Kennedy; Boles; Tarlton; Shawn Brantley, a real-estate appraiser hired by Wachovia; Price; Joe Courtney, Jr., a real-estate appraiser hired by Boles; and Robin May Boles, Boles's wife.
Wachovia had hired Brantley, a licensed real-estate appraiser, to appraise the property before approving the loan Boles intended to use to prepay the note. Brantley testified that he appraised the property on June 23, 2005, under the existing "RS-1 zoning" classification for $7.3 million and under the multifamily zoning classification for $17.75 million. Brantley testified that "[t]here were properties in the immediate vicinity that were being rezoned from the RS classification to the [multifamily] classification." At that same time, Boles had also hired Courtney, a licensed real-estate appraiser, to appraise the property. Courtney testified that he appraised the property on June 30, 2005, under the RS-1 zoning classification for $2,976 million and under the multifamily zoning classification for $15 million.
On November 3, 2008, the trial court issued a judgment, stating:
Kennedy then timely filed two postjudgment motions pursuant to Rule 59(e), Ala. R. Civ. P. In the first motion, Kennedy moved the trial court to alter and to clarify the November 3, 2008, judgment because, he argued, it was silent as to his claims alleging breach of the note and the personal guaranty. In the alternative, Kennedy argued that the trial court should clarify the judgment to provide that BI continues to be indebted to Kennedy on the note. In the second motion, Kennedy moved the trial court to vacate the November 3, 2008, judgment, as inconsistent with the law and undisputed evidence, or, in the alternative, to enter special written findings of fact and conclusions of law pursuant to Rule 52, Ala. R. Civ. P. The trial court denied both motions. Kennedy appeals.
Because the trial court heard ore tenus evidence during the bench trial, the ore tenus standard of review applies. Our ore tenus standard of review is well settled. "`When a judge in a nonjury case hears oral testimony, a judgment based on findings of fact based on that testimony
Reed v. Board of Trs. for Alabama State Univ., 778 So.2d 791, 795 (Ala.2000) (quoting Raidt v. Crane, 342 So.2d 358, 360 (Ala.1977)). However, "that presumption [of correctness] has no application when the trial court is shown to have improperly applied the law to the facts." Ex parte Board of Zoning Adjustment of Mobile, 636 So.2d 415, 417 (Ala.1994).
"The ore tenus standard of review extends to the trial court's assessment of damages." Edwards v. Valentine, 926 So.2d 315, 325 (Ala.2005). Thus, the trial court's damages award based on ore tenus evidence will be reversed "only if clearly and palpably erroneous." Robinson v. Morse, 352 So.2d 1355, 1357 (Ala.1977).
Kennedy initially argues that this Court lacks subject-matter jurisdiction over this appeal because, he says, the November 3, 2008, order is not a final judgment. See McGowin Inv. Co. v. Johnstone, 291 Ala. 714, 715, 287 So.2d 835, 836 (1973) (holding that "a final judgment is necessary to give jurisdiction to this court on an appeal, and it cannot be waived by the parties"). This Court has routinely defined a final judgment as "an order `that conclusively determines the issues before the court and ascertains and declares the rights of the parties involved.'" Lunceford v. Monumental Life Ins. Co., 641 So.2d 244, 246 (Ala.1994) (quoting Bean v. Craig, 557 So.2d 1249, 1253 (Ala.1990)). Kennedy contends that the November 3, 2008, order fails to conclusively determine all the issues before the trial court because, he says, the order fails to dispose of his claims asserting that BI breached the promissory note and that Boles breached his personal guaranty to pay BI's obligation under the note.
We conclude that the November 3, 2008, order adjudicated all pending claims and that it conclusively determined all the issues before the trial court. The trial court's judgment that "all interest payments in the Clerk's office ... [are] hereby awarded to [BI and Boles]" is an implicit denial of Kennedy's claims that BI breached the promissory note and that Boles breached his personal guaranty to pay BI's obligation under the note. The terms of the promissory note provide that BI's interest-payment obligation would terminate upon payment of the principal. Accordingly, the trial court's return of the interest payments to BI and Boles demonstrates that the trial court found that BI
The trial court's general award to BI and Boles of $3.65 million plus court costs is an implicit resolution of all BI and Boles's counterclaims. A trial court is not required provide a precise calculation for its damages award following ore tenus proceedings, and, in this case, the trial court's failure to attribute the money damages to a particular counterclaim does not affect the finality of the judgment. An appellate court may attribute a general-liability award resulting from an ore tenus proceeding to any count that is supported by the evidence, and, as discussed below, we conclude that the trial court's $3.65 million judgment is supported by BI and Boles's breach-of-contract counterclaim. See Hamilton v. Hamilton, 255 Ala. 284, 288, 51 So.2d 13, 17 (1951) (holding that "[a general] finding of the trial court, sitting without a jury," "will be referred to a count which is sufficient and which is supported by the evidence" (citing Evans Bros. Constr. Co. v. Steiner Bros., 208 Ala. 306, 94 So. 361 (1922))). Because the $3.65 million judgment is supported by BI and Boles's breach-of-contract counterclaim, we infer the denial of BI and Boles's remaining counterclaims. Alabama law is settled that, in the absence of an order severing a claim or ordering a separate trial, "[a] judgment will be deemed a final judgment on all issues pleaded and any claims which are not specifically disposed of in the judgment will be deemed to have been rejected or denied." Poston v. Gaddis, 372 So.2d 1099, 1101 (Ala.1979). From all that appears in the record, BI and Boles's counterclaims were tried during the bench trial and no party to the proceeding sought a separate proceeding for any counterclaim. See also Roberts v. Security Trust & Sav. Bank of Brilliant, 470 So.2d 674, 675 (Ala.1985) (holding that even though the record contained no order dismissing the defendant's counterclaim, the judgment was final because the trial court entered a judgment in full for the plaintiff and "[t]hat holding implicitly denied the counterclaim"). The November 3, 2008, order is a final judgment.
As to the merits of the November 3, 2008, order, Kennedy first argues that the trial court erred by "stopping interest under the Note ... because [BI] did not keep the prepayment tender good, did not pay it into court, and never borrowed funds necessary to prepay the Note to Kennedy." Kennedy's brief, at p. 31. Kennedy liberally construes the order of the trial court to frame his argument because the November 3, 2008, order does not "stop[] interest payments under the Note." Instead, the trial court ordered that "all interest payments in the Clerk's office in this case, including all accrued interest, [are] hereby awarded to [BI and Boles]."
Kennedy appears to argue that the trial court's return of the interest payments to BI and Boles was error because, he contends, BI's interest-payment obligation did not terminate upon BI's prepayment tender. Kennedy argues that a prepayment tender stops interest only if the tender is "kept good" and that "[BI] did not keep good the prepayment tender" because BI did not pay the tender into the court. Kennedy's brief, at p. 35. To support the contention that a prepayment tender stops interest only if it is kept good, Kennedy relies on McCalley v. Otey, 99 Ala. 584, 589, 12 So. 406, 407 (1893)
(Emphasis added.) Kennedy's application of this passage to the facts of this case is misguided, however, because the Court in McCalley II appears to be referring to a situation in which the debtor independently fails to keep a tender good, as opposed to a situation in which the debtor fails to keep the tender good because the creditor rejects the tender. This conclusion is supported by the fact that before the above-quoted passage in McCalley II, the Court noted with approval that in McCalley v. Otey, 90 Ala. 302, 8 So. 157 (1890) ("McCalley I"), it held "`[a] tender refused does not operate to discharge the debtor from the debt, but only releases him from the payment of interest subsequently accruing.'" 99 Ala. at 589, 12 So. at 407 (quoting McCalley I, 90 Ala. at 308, 8 So. at 159 (emphasis added)). In McCalley II, this Court further stated that "tender of the whole amount due, principal and interest, at any time after the debt falls due, but before suit is brought, stops the interest. ..." 99 Ala. at 589, 12 So. at 407. See also Odum v. Rutledge & Julian R.R., 94 Ala. 488, 496, 10 So. 222, 224 (1891) ("the proffer of the money is dispensed with, if the party is ready and willing to pay the same, but is prevented by the creditor's declaring that he will not receive it"); 13 Sarah Howard Jenkins, Corbin on Contracts § 67.6, at 33 (Joseph M. Perillo ed., 2003) (stating that a "creditor [who refuses proper tender] has no right to interest beyond the due date"). These general rules are now codified in § 7-3-603(c), Ala.Code 1975,
We conclude that BI owed no interest payments to Kennedy after Kennedy rejected BI's prepayment tender. The record shows that the trial court heard sufficient evidence indicating that BI had tendered prepayment to Kennedy. "`Where evidence is presented to the trial court ore tenus, a presumption of correctness exists as to the court's conclusions on issues of fact; its determination
Kennedy further argues that the November 3, 2008, order improperly allows BI and Boles to benefit from the prepayment tender and to avoid its burden because, he argues, the order does not enter a judgment against BI and Boles for the prepayment-tender amount. Kennedy contends that if this Court "affirms the trial court's finding of tender and cessation of interest, the trial court should be directed to enter judgment for Kennedy on the note against BI and against Ian Boles on the guaranty for $3,513,000, the prepayment amount." Kennedy's brief, at p. 41. This argument is misguided because our affirmance of that portion of the trial court's judgment returning interest payments to BI and Boles is based upon a finding that Kennedy breached the note by rejecting BI's prepayment tender. Consistent with this finding, BI did not at that juncture breach the note and Boles did not at that point breach his alleged guaranty to pay BI's obligation on the note. Therefore, Kennedy is not entitled to a judgment against BI or Boles in this proceeding in the absence of a breach.
Kennedy did not have another claim seeking a judgment on the note; his only pending claims alleged a breach of the note by BI and a breach of a personal obligation to pay the note by Boles.
Kennedy next argues that the trial court erred in awarding $3.65 million to BI and Boles because, he says, BI and Boles's counterclaims are barred by the door-closing statute, § 10-2B-15.02, Ala.Code 1975. The door-closing statute provides:
§ 10-2B-15.02(a), Ala.Code 1975. Kennedy argues that under the door-closing statute BI and Boles cannot enforce the promissory note because BI failed to qualify to do business in Alabama at the time BI and Kennedy entered into the note.
This Court previously affirmed the trial court's January 30, 2006, judgment finding that Kennedy had waived his right to assert the door-closing statute in order to void the agreements he had entered into with BI, and, based on the law-of-the-case doctrine, we see no reason to reconsider this issue. "The law-of-the-case doctrine provides that when a court decides upon a rule of law, that rule should continue to govern the same issues in subsequent stages in the same case, thereby hastening an end to litigation by foreclosing the possibility of repeatedly litigating an issue already decided." Belcher v. Queen, 39 So.3d 1023 (Ala.2009) (citing Ex
Regarding whether Kennedy waived his right to void his agreements with BI, the January 30, 2006, judgment provides:
(Emphasis added.)
Kennedy argues that this judgment is limited to his waiver of the right to void the sale of the property—the deed itself— pursuant to the door-closing statute, and, therefore, that this Court's affirmance of the January 30, 2006, judgment did not address the issue whether Kennedy waived the right to void other agreements entered into by Kennedy and BI related to the sale of the property, such as the promissory note. We do not agree that the January 30, 2006, judgment is limited to the purchase agreement. In the January 30, 2006, judgment the trial court found that "the claim made by [Kennedy] that he was entitled to avoid the entire transaction ... is without merit" because, the court found, Kennedy knowingly waived the right to void agreements made the basis of the sale by entering into the transaction and the post-closing agreement. (Emphasis added.) Indeed, in Kennedy's motion for a declaratory judgment Kennedy broadly asserted that "[t]he conveyance contract and agreements entered by [BI] should be deemed void by this Honorable Court" under the door-closing statute because BI was not qualified to do business within the State of Alabama when those agreements were entered
This Court has recognized that it may disregard the law-of-the-case doctrine "when compelling circumstances call for the redetermination of a point of law on a prior appeal." Ex parte Discount Foods, Inc., 789 So.2d at 846 n. 4. Here, however, Kennedy has not provided us with any reason to question the propriety of our affirmance of the January 30, 2006, judgment.
Kennedy next argues that even if BI and Boles could recover damages for breach of contract, BI and Boles did not present sufficient evidence to support a $3.65 million damages award for the breach. Kennedy contends that BI and Boles improperly presented evidence of the contract price and market value of the property to establish their breach-of-contract damages and that such a calculation does not apply to this case because the underlying claim is breach of a promissory note, not breach of a real-estate-sales contract. The only legal authority Kennedy cites in support of this argument is Duncan v. Rossuck, 621 So.2d 1313, 1315-16 (Ala.1993), in which this Court noted that the "measure of damages for the breach of a contract involving the sale of land is the difference between the contract price and the market value of the land on the date of the breach." Kennedy then contends that such a calculation does not apply to this case and that "[t]he controlling cases here are those involving tender by the debtor of prepayment of the mortgage. The tender cases hold that where a debtor makes a legally sufficient tender that is kept good, interest stops as of the date of tender." Kennedy's brief, at p. 51. Kennedy provides no authority to support these contentions. Rule 28(a)(10), Ala. R.App. P., requires that the argument in an appellant's
"The law generally allows for the recovery of all damages, including incidental and consequential, caused by the breach of contract or the commission of a tort." Van Hoof v. Van Hoof, 997 So.2d 278, 298 (Ala.2007) (citing Ex parte Steadman, 812 So.2d 290, 295 (Ala.2001) ("`The general rule as to the measure of damages in breach of contract cases is that damages are recoverable which are the natural and proximate consequence of the breach, and it is that sum which would place the injured party in the same condition he would have occupied if the contract had not been breached.'" (quoting Brendle Fire Equip., Inc. v. Elec. Eng'rs, Inc., 454 So.2d 1032, 1034 (Ala.Civ.App.1984))).
We must determine whether a damages award of $3.65 million on BI and Boles's breach-of-contract claim is palpably erroneous or manifestly unjust. See Black Diamond Dev., Inc. v. Thompson, 979 So.2d 47, 52 (Ala.2007) ("It is well established that `[w]hen a trial court hears ore tenus testimony "its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust."'" (quoting New Props., L.L.C. v. Stewart, 905 So.2d 797, 799 (Ala.2004), quoting in turn Philpot v. State, 843 So.2d 122, 125 (Ala. 2002))). During the two-day bench trial, BI and Boles presented evidence indicating that as a consequence of Kennedy's dissatisfaction with BI's agreement to sell the property to Hall for $16 million and BI's intention to prepay the note, Kennedy refused the prepayment tender and filed this action and the notice of lis pendens on the property. BI and Boles produced evidence indicating that as a consequence of the lis pendens on the property they were unable to sell the property to interested parties and to make a profit of at least $3.65 million from those sales.
Based on the foregoing, the trial court's November 3, 2008, judgment is affirmed.
AFFIRMED.
COBB, C.J., and LYONS, WOODALL, STUART, BOLIN, PARKER, and SHAW, JJ., concur.
MURDOCK, J., concurs in the result.
SMITH, Justice.
On March 12, 2010, this Court issued its opinion on original submission, affirming the November 3, 2008, judgment of the Baldwin Circuit Court in favor of defendants Boles Investment, Inc. ("BI"), and Ian Boles ("Boles"), the owner of BI. J. Gregory Kennedy, the plaintiff below, states in his application for rehearing that "[t]he Opinion's holding that the November 3, 2008, judgment is a final judgment is in error because this Court overlooked the injunction against foreclosure ordered after the first affirmance." Kennedy's rehearing application, at 12.
On April 11, 2008, after this Court on February 15, 2008, had affirmed, without an opinion, the trial court's January 30, 2006, judgment, which had been made final pursuant to Rule 54(b), Ala. R. Civ. P., BI and Boles filed a "Motion for Immediate Injunction Against Foreclosure" in the trial court requesting that the trial court "enjoin [Kennedy] from proceeding with any foreclosure at this time pending the outcome on the trial for damages against [Kennedy] currently pending and due to be set down during the first available jury term." (Emphasis added.) The trial court summarily granted BI and Boles's motion and issued the injunction on April 29, 2008.
On October 27 and 28, 2008, the trial court held a bench trial on all pending claims. On November 3, 2008, the trial court issued an order disposing of all pending claims and "award[ing] a judgment against [Kennedy] in the amount of $3,650,000.00 plus costs of court." Because the November 3, 2008, judgment ruled upon the counterclaims against Kennedy, the judgment effectively dissolved the April 2008 injunction. Therefore, the April 2008 injunction does not render the November 3, 2008, judgment nonfinal.
The remaining issues raised by Kennedy having been thoroughly considered on original submission, the application for rehearing is overruled.
APPLICATION OVERRULED.
COBB, C.J., and LYONS, WOODALL, STUART, BOLIN, PARKER, MURDOCK, and SHAW, JJ., concur.
Thus, we note that under the trial court's rationale BI and Boles remain liable on the promissory note. As discussed in Part III.C above, however, Kennedy is not entitled on this record to a judgment on the note. Whether future events might warrant such relief is obviously a question not before us.
