author: STUART, Justice. LYONS, Justice JOHNSTONE, Justice WOODALL, Justice MOORE, Chief Justice

text:
    James T. PARSONS et al. v. Patrick AARON, and Pat & Pat, Inc. James T. Parsons et al. v. Patrick Aaron, and Pat & Pat, Inc. Patrick Aaron, and Pat & Pat, Inc. v. James C. Parsons et al.
    1002086, 1002087 and 1010105.
    Supreme Court of Alabama.
    Oct. 4, 2002.
    Rehearing Applications Denied Nov. 15, 2002.

      E. Allen Dodd, Jr., of Scruggs, Dodd & Dodd Attorneys, P.A., Fort Payne; and James W. Fuhrmeister of Allison, May, Alvis, Fuhrmeister, Kimbrough & Sharp, L.L.C., Birmingham, for James C. Parsons, James T. Parsons, and James C. Parsons, Inc.
    John E. Medaris, Pelham, for Patrick Aaron, and Pat & Pat, Inc.
   STUART, Justice.

James C. Parsons, James C. Parsons, Inc., and James T. Parsons (hereinafter sometimes collectively referred to as “the Parsonses”) appeal from a judgment entered by the Shelby Circuit Court in favor of Patrick Aaron and Pat & Pat, Inc. (hereinafter sometimes collectively referred to as “Aaron”), on claims of tortious interference with contractual or business relations, breach of contract, and conversion, arising out of Aaron’s sale of World Gym Health and Fitness Center-Pelham (hereinafter “World Gym”), to James C. Parsons and James C. Parsons, Inc. The jury awarded Aaron a total of $107,000 in compensatory damages and $193,000 in punitive damages; the trial court remitted the punitive-damages award to $60,000. Aaron filed with this Court a motion to dismiss the Parsonses’ appeals as untimely filed; Aaron also conditionally cross-appeals as to the trial court’s order of remit-titur of the punitive-damages award. We deny the motion to dismiss the appeals and we affirm in part, reverse in part, render a judgment in part, and remand.

Procedural Background

These appeals result from two actions filed in the Shelby Circuit Court. The plaintiffs in case no. CV-98-903 are James C. Parsons (“Jimbo”), James C. Parsons, Inc. (“the corporation”), and Jimbo’s father, James T. Parsons (“Jim Parsons” or “Parsons”). The Parsonses sued Aaron seeking to enjoin him from taking certain actions the Parsonses contended would violate a noncompetition agreement Aaron had entered into in conjunction with the sale of World Gym to the Parsonses.

Aaron responded by filing his own complaint in Shelby Circuit Court, suing Jim-bo and the corporation (case no. CV-98-955). Aaron alleged breach of contract and conversion. In a later amendment to his complaint, Aaron added Jim Parsons as a defendant, alleging a claim of tortious interference with contractual or business relations.

The Parsonses then filed a counterclaim in case no. CV-98-955, alleging that Aaron had breached the noncompetition agreement and seeking monetary damages. The cases were consolidated and all of the above-identified claims were tried before a jury. At the close of Aaron’s evidence, the Parsonses moved for a judgment as a matter of law; the trial court denied that motion.

The jury returned a verdict against the Parsonses on their claim alleging breach of the noncompetition agreement and seeking an injunction. The jury returned a verdict in favor of Aaron on his claims of breach of contract, conversion, and tortious interference, awarding Aaron compensatory and punitive damages.

The Parsonses filed postjudgment motions pursuant to Rules 50 and 59, Ala. R. Civ. P., seeking a judgment as a matter of law, a new trial, or alternatively, a remitti-tur of the punitive-damages award. On June 6, 2001, the trial court entered on the case action summary the following notation: “by express consent of all parties pursuant to the provisions of [Ala. R. Civ. P.], Rule 59.1, the post-judgment motion of the Plaintiffs — i.e., ‘James C. Parsons, Inc., James. C. Parsons, and James T. Parsons’ Alternative Post-Trial Motions Under Rules 50 and 59’ — shall remain pending in this court until July 6, 2001, unless said motion is ruled upon by the court prior to said date.”

On July 5, 2001, the trial court entered its order on all the Parsonses’ post-judgment motions. The trial court conditionally granted the Parsonses’ motion for a new trial unless Aaron accepted a remit-titur of the $193,000 punitive-damages award to $60,000.

On July 19, 2001, Aaron filed a motion styled “Request for Correction/Amendment of Order.” In that motion, Aaron argued that the trial court should correct or amend its postjudgment order to reflect that, if Aaron accepted the remittitur, the Parsonses must agree to forgo any appeal of the judgment. Aaron asserted that the trial court had no authority to order a remittitur without also ordering that the Parsonses forgo their right of appeal upon Aaron’s acceptance of the remittitur. The trial court set this motion for a hearing on August 29, 2001. On July 28, the Parsons-es responded to Aaron’s request for correction or amendment of the postjudgment order by noting that Rule 59(f), Ala. R. Civ. P., allows the trial court to order a remittitur and, even if accepted, Aaron would still retain the right on appeal to seek reinstatement of the entire damages award. On July 25, Aaron filed a notice styled “Involuntary Acceptance of Remitti-tur.” However, Aaron did not withdraw his motion to correct or amend.

On August 17, 2001, the Parsonses filed their notices of appeal. They indicated that they were appealing from a final judgment and that, the date of that judgment was February 15, 2001; that the date of the trial court’s postjudgment order was July 5, 2001; and that two postjudgment motions had been filed: (1) the Parsonses’ motion for new trial; and (2) Aaron’s request for correction or amendment of the trial court’s order. The Parsonses did not indicate on their notices of appeal the date of filing or the date of disposition of the postjudgment motions. However, the Par-sonses added to each notice of appeal the following: “This notice is filed although some post-trial motions remain pending.” These appeals are case no. 1002086 and case no. 1002087.

On August 22, 2001, Aaron filed a motion to dismiss the Parsonses’ appeal in case no. 1002086, claiming that the notice of appeal in that case was not timely filed. On August 29, 2001, Aaron filed a conditional cross-appeal, seeking reinstatement of the full punitive-damages award in the event the Parsonses’ appeals were not dismissed as untimely. Aaron’s cross-appeal is case no. 1010105.

Aaron asserts that the time for filing a notice of appeal began to run the day the trial court entered its order on the Parsonses’ postjudgment motions. The trial court entered its order on those motions on July 5, 2001. Forty-two days from that date was August 16; the Par-sonses filed their notice of appeal on August 17.

However, the Parsonses assert that their notice of appeal was timely because, they say, the July 5, 2001, order was not a final judgment. The Parsonses assert several bases for their position. First, they assert that their claim seeking equitable relief against Aaron (seeking to enjoin Aaron from proceeding with the purchase, lease, or operation of a competing gym) was never ruled upon — even though the jury returned a verdict on that claim — and that it remained pending. The Parsonses also assert that the trial court had not certified the judgment awarding damages as final for purposes of appeal.

The Parsonses also allege that the July 5, 2001, order was conditioned upon Aaron’s accepting the trial court’s order of remittitur. Thus, the Parsonses allege that the July 5, 2001, order was conditional; that it required further action by the parties; and that it did not have the effect of a final judgment.

. The Parsonses also allege that the 42-day period did not begin to run until after all postjudgment motions had been ruled upon. The Parsonses assert that Aaron’s July 19, 2001, motion styled as a “Request for Correction/Amendment of Order,” prevented the 42-day period for appeal from running. The Parsonses assert that the request for correction or amendment of the order was another postjudgment motion and that, although Aaron filed a notice of acceptance of the remittitur on July 25, Aaron never withdrew the pending post-judgment motion to correct or amend. Because the trial court has not ruled upon that motion, the Parsonses argue, the request for correction or amendment of the order remains pending.

Was the Parsonses Notice Of Appeal Timely ?

Rule 4(a)(1), Ala. R.App. P., provides (with limited exceptions) that a party wanting to appeal to an appellate court must file his or her notice of appeal within 42 days of the date of the entry of the judgment appealed from. Rule 4(a)(3), Ala. R.App. P., provides that the filing of a postjudgment motion under Rule 59, Ala. R. Civ. P., suspends the time for filing a notice of appeal; it provides that “the full time fixed for filing a notice of appeal shall be computed from the date of the entry in the civil docket of an order granting or denying such motion.”

However, what saves the Parsonses’ appeal from being untimely in this case is the effect of Rule 59.1, Ala. R. Civ. P. To avoid the automatic denial of pending motions after 90 days as mandated by Rule 59.1, the trial court entered upon the case action summary a statement reflecting that the parties had expressly consented to the posttrial motions’ remaining pending until July 6, 2001, unless they were ruled upon by the court before that date. On July 5, 2001, the trial court unconditionally denied all posttrial motions except for the Par-sonses’ motion for a new trial, which the court denied conditioned upon Aaron’s acceptance of a remittitur. Because that remittitur had not been accepted as of July 6, that aspect of the Parsonses’ posttrial motions remained pending on July 6, 2001. Because the Parsonses’ notices of appeal were filed on August 17, 2001, 42 days after July 6, the notices of appeal were timely filed. For this reason, we deny Aaron’s motion to dismiss the Par-sonses’ appeals.

Factual Background

From a factual standpoint, this case is riddled with conflicts — interpersonal ones among the parties and evidentiary ones presented at trial. We summarize, as best we can, the evidence contained in the record.

In 1997, Jimbo initiated conversations with Patrick Aaron abont Aaron’s selling World Gym to Jimbo. After some negotiations, they ultimately agreed upon a purchase price of $1,700,000, and the transaction was consummated. On January 30, 1998, the parties executed a detailed “Asset Sale and Purchase Agreement” (hereinafter “the Sale Agreement”).

As part of the sale transaction, Patrick Aaron also executed a “noncompetition agreement,” which provided, in pertinent part:

“Aaron agrees that for a period of five (5) years from February 15, 1998, Aaron shall not, either directly or indirectly, whether as owner, partner, shareholder or employee, or in any other manner whatsoever, own, operate, manage, join, contract or participate in the ownership, management, operation or control of, or be connected in any manner with, or act as a consultant to, any business which operates a similar business to that operated by Pat & Pat, Inc. [a]s of the date of closing -within the counties of Jefferson and Shelby within the State of Alabama.”

The noncompetition agreement is dated February 2,1998.

At a meeting at which only Jimbo, Patrick Aaron, and John Oei were present, Jimbo and Aaron executed a document entitled “Letter of Intent — Pro Shop” (hereinafter referred to as “the pro shop agreement”). This agreement provided, in pertinent part:

“In effect April 1,1998.
“I, James C. Parsons; [d/b/a] World Gym-Pelham, Alabama (henceforth, to be recognized as ‘the Gym,’) agree to allow Patrick D. Aaron of Pat & Pat, Inc. the rights to be the exclusive supplier of certain and limited products of the ‘Pro Shop’; a retail site located within and used in conjunction to, the Gym. Such items include:
“... Any products furnished by Patrick Aaron will be sold upon the basis of consignment with a monthly record to be kept of inventory, sales and profits. Mr. Aaron will receive 70% of all revenue received beyond the purchase price of the products described as being furnished by Mr. Aaron.
“This agreement is for a term of 6 months from the day of inception to be reviewed for renewal at an identical term designed to maintain a profit ratio acceptable by both parties.”

This document is dated January 28, 1998 — two days before the Sale Agreement was executed. However, Jimbo testified that the document was actually executed several days after the parties executed the Sale Agreement. All parties agreed that John Oei drafted the pro shop agreement.

Jimbo and Aaron also had Oei, who was not a lawyer, draft a document entitled “Letter of Intent — Personal Training” (hereinafter referred to as “the personal-training agreement”), which provided:

“I, James C. Parsons; [d/b/a] World Gym-Pelham, Alabama (henceforth, to be recognized as ‘the Gym,’) agree to allow Patrick D. Aaron of Pat & Pat, Inc. the right to have, and receive payments for, services rendered by the personal training of clients free of charges, fees or incumbrances.
“The services will need to be performed under identical precautions and restrictions as any member of the training staff conducting business at the Gym including certification, CPR training, insurance and fee restrictions paid by members, but with exemption to fees paid to the Gym.
“This agreement can be void and Mr. Aaron be subject to banishment from the Gym if his actions or interpretation of services are considered detrimental toward the Gym under the same guidelines and boundaries given to all other persons working in a similar position.”

Although the record does not contain an executed copy of this agreement, the parties did not dispute that, after Jimbo purchased World Gym, Aaron was allowed to conduct personal training at the gym for his clients at no charge to him.

In conjunction with this transaction, Jimbo formed the corporation, of which he was the sole shareholder and the only officer. In February 1998, the corporation took ownership and began operation of World Gym.

Testimony of Patrick D. Aaron

Patrick Aaron was a minority shareholder in Pat & Pat, Inc., a family owned corporation that owned World Gym. Aaron served as the president and general manager of World Gym; Aaron’s mother and his wife also worked at the gym.

Aaron testified that Jimbo approached him about purchasing the gym and that ultimately he and Jimbo agreed on a purchase price of $2,000,000. When they reached that agreement, Jimbo, Oei, and Julie Kitchings, a personal friend of Jim-bo’s, began to work at World Gym, in order to conduct what Aaron described as a “due diligence” analysis.

When Jimbo learned that he could obtain financing for only $1,700,000 of the purchase price, Jimbo and Oei made additional offers designed to compensate Aaron for the $300,000 reduction in the purchase price. Jimbo and Oei offered to allow Aaron to keep and to continue operating the pro shop at World Gym, selling clothes, certain health and fitness products, nutritional supplements, and equipment. Jimbo and Oei also offered to allow Aaron to continue to train his fitness clients at the gym at no cost to Aaron. Aaron also testified that he and his family were to receive lifetime memberships to the gym. Aaron agreed to this offer because, he stated, this offer would net him several thousand dollars per month in income, which, over time, would compensate him for the $300,000 shortfall in the purchase price. On cross-examination, Aaron was asked why, if, as he claimed, all of the agreements were part of the same transaction, the documents for each were prepared by different persons and were executed on different dates.

Patrick Aaron testified that, after Jimbo took over the gym, Aaron and Kitchings experienced personal conflicts. Aaron acknowledged that he did not like Kitchings and that he was critical of Kitchings to Jimbo. Aaron testified that, as early as February 1998, he warned Jimbo that Kitchings was “taking money from the club,” “that she was belittling the staff,” and that she was “causing chaos throughout the club.” Aaron told Jimbo “she was nothing but trouble to that club.” According to Aaron, he relayed this information to Jimbo as Jimbo’s consultant and in eon-fidence so that Jimbo could monitor the gym for himself.

Aaron denied Kitchings’s claim that he had threatened to “knock [Kitchings’s] head off,” that he had ever cursed in front of members at the gym, or that he had ever done anything to hurt World Gym. Aaron testified that, even after he sold World Gym to Jimbo, he wanted World Gym to succeed. As evidence of this, he stated that he had agreed to act as a consultant to Jimbo without being paid for those services and that he had voluntarily mopped floors to help Jimbo and the gym.

Aaron acknowledged that before his noncompetition agreement with World Gym expired, he was approached by Ron McNeeley, an employee of World Gym who had become unhappy with World Gym and who wanted to open a competing gym. McNeeley asked Aaron if he would be interested in building a facility to be used as a gym and then leasing it to McNeeley. Aaron admitted that he contemplated this proposal.

Aaron telephoned Jimbo to ask if owning and leasing a building in which a gym was located would violate his noncompetition agreement. Aaron said that Jimbo instructed him to telephone Jim Parsons. Aaron called Parsons with his question; he did not remember the exact date of his telephone conversation with Parsons, but he recalled that it occurred before his termination from World Gym. According to Aaron, Jim Parsons responded, “I don’t think that it does.... Let me talk to my attorney, and you talk to your attorney-I don’t think it does.”

Aaron testified that, as early as July 1998, he heard rumors among the employees of World Gym that he was going to be fired. Aaron stated that because of those rumors, he continued to consider the possibility of other business ventures.

Aaron testified that he was fired from World Gym on August 10, 1998. Aaron testified:

“A: And that day that I came in on August 10, Zane Woodward told me, ‘Patrick, I don’t want to have to tell you this, but Pm going to have to ask you to leave the premises.’ And I asked him, Why am I going to have to leave the premises?’
“He said, under [Kitchings’s] instructions, she told me if you don’t leave the premises, for me to call the police and have them escort you off the premises. At that time is when I went in and called Jimbo and told Jimbo, ‘Jimbo, I think it’s apparent that we need to have a meeting and talk.’ And thirty minutes later him and his dad showed up.
“Q: And you went into that meeting. Who spoke during that meeting? Did you speak?
“A: No, sir. Mr. [Jim] Parsons did most of the speaking.
“Q: What did Mr. Parsons tell you, as best you can remember?
“A: Mr. Parsons told me, he said, ‘Patrick,’ he said, ‘we’re having some conflicts with you and [Kitchings]. And we think that it would be in our best interest if we ask you to leave the premises of World Gym and never step foot back on the premises of World Gym.’
“And I looked at him, and I said, ‘Mr. Parsons, me and Jimbo have an agreement to where I — I have the pro shop. I have a personal training agreement with Jimbo and a complimentary free membership for life at this club.’ And he looked at me, and he said, “You no longer do.’ And he put his finger in my face and said, ‘I’ll tell you, don’t you ever go up against me because you will lose.’
“Q: And did you shake hands after that?
“A: Absolutely not.
“Q: So the demeanor of the meeting, was it not a pleasant event?
“A: It wasn’t pleasant at all.”

Aaron testified that he saw Jim Parsons in the World Gym facility “maybe twice” during the period from February 1998 through August 10, 1998. He never dealt with Jim Parsons while negotiating the sale of the gym to Jimbo or while negotiating the pro shop agreement or the personal-training agreement. Aaron testified that neither Jim Parsons nor Jimbo ever told him that he had done anything wrong other than the statements made to him on August 10,1998.

After he was fired from World Gym and instructed never to return, Aaron purchased land in Shelby County on which he had a large facility built. Aaron had entered into the agreement to purchase this land on July 21, 1998 — more than two weeks before Jim Parsons asked him to leave World Gym. At the time of the trial, Ron McNeeley was leasing the facility, and he was operating Power House Gym in the facility. Aaron continued to train his personal-fitness clients at Power House Gym, although he testified that the number of his clients had decreased. Aaron also continued to manage a stand-alone nutritional supplement shop he had opened while he was still working with World Gym. However, he testified that his business at that shop had suffered as a result of his termination from World Gym. Aaron acknowledged that Power House Gym competes with World Gym.

Testimony of Jimbo Parsons

In 1997, Jimbo Parsons, a high school teacher, joined World Gym as a member. Shortly after joining, Jimbo became interested in owning and operating a gym. With the assistance of a personal friend, Julie Kitchings, and a consultant, John Oei, Jimbo began to investigate the possibility of purchasing World Gym.

Jimbo and Oei entered into informal negotiations with Patrick Aaron. Jimbo testified that he never offered to purchase World Gym for a price of $2,000,000; he testified that his purchase offer was always $1,700,000. Jimbo admitted that he and Oei agreed to allow Aaron to stock the pro shop and to allow Aaron to train his fitness clients at World Gym at no charge to Aaron, but he denied that those offers were designed to compensate Aaron for any shortfall in the purchase price. Jimbo testified that those agreements were wholly separate transactions from the Sale Agreement.

Upon assuming ownership of World Gym, Jimbo hired Kitchings as the director of the facility; he also retained Ron McNeeley, who had worked for Aaron, as the sales manager.

Patrick Aaron, who was to be present in the gym training his fitness clients and stocking the pro shop, agreed to serve as a consultant, free of charge, to Jimbo. However, the gym, under Jimbo’s ownership, experienced difficulties from the beginning.

Jimbo acknowledged that conflicts occurred between Etchings and other members of the staff at World Gym. Jimbo admitted that World Gym eventually lost members because of Etchings.

Jimbo admitted that Etchings and Aaron also experienced some conflict. Although Aaron, Oei, Etchings, and Jimbo hád all worked well together before Jimbo purchased the gym, Aaron and Oei expressed their concern to Jimbo immediately after the closing regarding Etchings’s ability to serve as the director. Jimbo immediately relayed this information to Etchings. Jimbo acknowledged that, whenever Aaron provided negative feedback to him concerning Etchings, Jimbo would relay that information and its source to Etchings. From the record, it appears that the more information Jimbo relayed to Etchings, the more antagonistic her relationship with Aaron became.

Evidence was presented indicating that Etchings also complained to Jimbo about Patrick Aaron. Specifically, Jimbo testified that, according to Etchings, Aaron used foul language in front of gym members and threatened to “knock her head off.” However, Jimbo acknowledged that he never witnessed any of this alleged behavior; he also acknowledged that no one but Etchings ever complained to him about Aaron. Jimbo described Aaron’s conduct as cordial and polite and as always providing accurate advice and guidance on how to run the gym in a better manner.

Jimbo also claimed to have learned information during this same period indi-eating that Aaron was violating his non-competition • agreement. In an undated memorandum, referred to at trial as the “golden-egg memo,” Jimbo told his father:

“The other thing and hopefully best news of all, is that it appears Patrick [Aaron] is active in the consultation and/or means to run a new gym for a particular investor. Apparently he’s already looked at a place behind Winn Dixie [grocery store] on Hwy 31 and a spot near Copeland’s [restaurant] here on 280. The understanding is that on several occasions he’s told people that it’s O.K. for him to run a gym and that he just can’t be an owner or investor. Obviously I’m mentioning any of this to no one. However, Julie knows all the details. It seems that there is an individual who knows both Patrick and Julie. The stroke of luck is that Patrick doesn’t know that this individual offering this info knows both he [sic] and Julie. We’re just being patient and continue to record any info aiding in building our arsenal.”

(Emphasis original.)

Jimbo testified that Aaron telephoned Jim Parsons and asked if “being a landlord of a gym” would violate the noncompetition agreement. According to Jimbo, Jim Parsons simply responded that Aaron should seek legal advice regarding the terms of his noncompetition agreement. Although the conversation with Aaron took place on a speakerphone and Jimbo heard the entire conversation, Jimbo did not respond to Aaron’s question; only Jim Parsons responded. Jimbo testified that he believed Aaron had breached his noncom-petition agreement by planning to purchase real estate and lease it to a competing gym, although Jimbo admitted he had no direct knowledge that Aaron actually had such plans.

Jimbo also acknowledged that his father terminated Aaron’s agreements with World Gym on August 10, 1998. Jimbo testified that, on that day, neither Parsons nor Jimbo informed Aaron that they considered any of his actions to be in violation of his noncompetition agreement or his personal-training agreement.

Jimbo acknowledged that his father did not work at the gym and that he had been in the gym only a handful of times between February 2 and August 10, but that he came to the gym to talk with Jimbo about business. Jimbo acknowledged that he had no control over his father; that he could not “boss” his father around; that he could not give him directions; and that he could not fire him. Jimbo also admitted that his father was unaware of what went on day-to-day at the gym. However, Jim-bo also testified that his father interviewed other employees of the gym on different occasions.

On cross-examination, Aaron’s counsel asked Jimbo if the reason he had wanted Aaron to leave World Gym was simply because Kitchings disliked Aaron. Aaron’s counsel also asked Jimbo if he was looking for a means to avoid renewing the pro shop agreement with Aaron in order to retain all of the profits from the pro shop. Jimbo denied that the prospect of profits motivated him to terminate Aaron’s pro shop agreement. Jimbo testified:

“While we were having problems with his behavior, and as I stated yesterday, it was — it was so problematic, something had to be done, but I thought it would be so unbecoming, nasty, just a terrible process to go through to take action to get — to have him exit the premises based on his behavior. That being said, as this fell into our laps [the alleged violation of the noncompetition agreement], we were not actively looking for it. And when this came about, this was — in my opinion this was such a clear-cut means for — for correcting the problem that we were having.”

Jimbo testified that he ultimately had to fire Kitchings when he discovered that Aaron’s assessment of her had been correct. Jimbo testified that he learned that “having [Kitchings] as a manager was not in World Gym’s best interest,” and that “if [he] had listened to [Aaron], the gym might have been better.”

Testimony of Jim Parsons

Jim Parsons testified that he became involved with Jimbo’s attempt to purchase World Gym when the financing at one lending institution did not materialize. Parsons assisted Jimbo in obtaining financing, and he attended the closing of the purchase transaction. However, Parsons acknowledged that he had not been involved in negotiating the purchase of World Gym. He was not a party to the Sale Agreement, the noncompetition agreement, the pro shop agreement, or the personal-training agreement. He was not present when Jimbo and Patrick Aaron signed the pro shop agreement or the personal-training agreement.

Parsons testified that in May 1998, McNeeley, Kitchings, and Jimbo met with him. At this meeting, Jim Parsons informed McNeeley that he would not be given an ownership interest in the gym, as Jimbo had promised him.

Jim Parsons testified that he heard, through personal trainers and staff members of World Gym, that Patrick Aaron had used “foul and abusive language” to a female employee of the gym, had made a physical threat against Kitchings, and was in the process of setting up a competing gym. Parsons testified that he considered those actions to be detrimental to World Gym and, thus, to be in direct violation of the personal-training agreement.

On August 10, 1998, Parsons, although he was neither an owner nor an employee of World Gym, met with Patrick Aaron in the office of World Gym and “excused Mr. Aaron from the premises.” Parsons told Aaron “not to come back to the gym” and that he “no longer had the pro shop business.” Parsons admitted that, at the time he fired Aaron, he believed Aaron had one month remaining under his pro shop agreement. Parsons claimed that he explained to Aaron all of the reasons for his termination.

“A: I told him that because of his acts of competition up the road, that— that along with all of the turmoil that he was creating among our staff and our members, I could not continue. His language, his threats. I — and he never denied it.
“Q: Is that all you said to him, what you’ve just told us?
“A: Obviously, we had more conversation. No, I couldn’t say that’s all.
“Q: Is that all you can recall?
“A: I can recall a fair amount about that conduct. Yes, there’s more that I can recall.
“Q: Well, tell me about it.
“A: In the conver — I had — I had been hearing that he was competing. We had been gathering our information. He never denied it. It was a — the parting was — was quite amicable. We shook hands. And I remember thinking that it was almost as though I had done him a favor by dismissing him, because this was something that later proved exactly what he wanted us to do, was to dismiss him and thereby violate our agreement.”

Although Jimbo was present for this meeting, Jim Parsons actually undertook to “fire” Aaron.

Jim Parsons also fired Ron McNeeley on August 10, 1998. Parsons admitted that he was not McNeeley’s employer or his supervisor. Parsons testified that he heard that McNeeley “had lost his motivation.” Parsons stated: “I asked him was that true, and he said yes.... And I said, well, then I accept that as your resignation. He said, fine.” Jimbo was not present for this meeting.

Jim Parsons testified that he was “the agent” of World Gym. He testified that his job description was to “assist his son in whatever manner [he] could.” However, he acknowledged that he was not paid for his services, that he had no job title, and that he was not involved in the day-to-day operations of the gym. Jim Parsons testified that during the period these events occurred he was present in the gym “several times.”

Parsons acknowledged at trial that Jim-bo had not done a respectable job of managing World Gym. As of October 30, 1998, Parsons purchased 90% of his son’s interest in the corporation and changed the corporation’s name to Southoak, Inc. Jim-bo returned to teaching, and Parsons took over the majority ownership and management of World Gym.

Parsons claimed that World Gym lost sales due to competition from Power House Gym, a competing gym at which Patrick Aaron trained his fitness clients and which operated out of a building owned by Aaron.

Testimony of Ron McNeeley

When Aaron owned World Gym, Ron McNeeley worked as its general manager. As the general manager of the gym, McNeeley was in charge of marketing and the sales staff, as well as supervising a staff of 80 employees who were responsible for the front desk, fitness and training, maintenance, and janitorial and day-care services. He testified that he worked approximately 10 hours per day. For his services, McNeeley received $2,500, plus commissions on his sales of club memberships. McNeeley also received monthly bonuses if certain sales quotas were met.

When Aaron sold the gym to Jimbo, Jimbo kept McNeeley on to serve as the sales manager, and he hired Julie Kitch-ings as the gym manager. McNeeley testified that he agreed to stay on as the sales manager only because Jimbo promised him an immediate 5% ownership interest in the gym and, in two years, another 5% ownership interest. According to McNeeley, Jim-bo also promised that every year thereafter on the date of the anniversary of his employment, McNeeley would receive an additional 1% ownership interest until he owned 15% of World Gym. McNeeley testified that, in February 1998, Jimbo announced to the employees and members of the gym that McNeeley was one of the “new owners.”

McNeeley confronted Jimbo in March when he had taken no action to transfer any ownership interest in the gym to McNeeley. Jimbo then had minutes of a “special meeting [of the corporation]” drawn up, authorizing the issuance of 55 shares of the corporation’s stock each to McNeeley and Kitchings. However, shortly after this document was drafted, Jim Parsons summoned McNeeley and Kitch-ings to a meeting. At this meeting, Parsons informed McNeeley and Kitchings that he was not going to honor the agreement to give them each 55 shares of the corporation’s stock; although present at the meeting, Jimbo said nothing.

According to McNeeley, on August 10 Jimbo and Jim Parsons called McNeeley into the office. Parsons stated “Jimbo tells me that you’re just having a hard time getting over the fact that you didn’t get your ownership and that you’re not motivated, and that we feel like we’re going to take that as your resignation.” McNeeley responded that he would not resign; however, August 10 was his last day to work at World Gym.

Testimony of John Oei

John Oei served as a consultant for Jim-bo. Because Oei moved out of state shortly after Jimbo purchased World Gym, Oei’s knowledge of this dispute is limited to the parties’ negotiations and to the events that occurred during the first few weeks after Jimbo purchased the gym.

Oei testified that he and Jimbo began informal discussions with Patrick Aaron regarding the purchase of World Gym. Aaron initially mentioned $3,000,000, which Oei and Jimbo quickly rejected. Oei testified that Aaron then informally mentioned $2,000,000, and Oei and Jimbo began investigating the books and accounts of World Gym.

However, after reviewing that figure with accountants and banks, “[we] determined that $1,700,000 would be a much better price for Jimbo.... And then we had a discussion with Patrick Aaron about reducing that price down to $1,700,000.” Oei testified that Jimbo and he offered Aaron the pro shop arrangement, the personal-training agreement, and the free membership, “in what we were' hoping would be a win-win situation.” Oei agreed that those other agreements were incorporated into the transaction as a means for Aaron to recoup the $300,000 reduction in the purchase price.

Oei also testified that he advised Jimbo that he did not believe Kitchings was well suited to the position of general manager but that McNeeley was essential to the success of World Gym. However, despite this advice, Jimbo hired Kitchings as the general manager.

On cross-examination, the Parsonses’ attorney questioned Oei, who was called as a witness by Aaron, as to why he would leave his job in Illinois for two days, allow Aaron to pay his travel and lodging expenses, and testify at trial against Jimbo without a subpoena, if, as Oei testified, he was merely concerned with Jimbo’s best interest. The Parsonses’ counsel asked Oei if he had wanted the director’s position at World Gym for himself and whether he was bitter because Jimbo had hired Kitch-ings, rather than Oei, for that job.

Testimony of Michael Sperando

Michael Sperando, a certified public accountant, testified regarding World Gym’s financial records. Using financial ledgers prepared by the Parsonses, Sperando concluded that World Gym lost over $100,000 in revenues during 1998. Sperando testified that World Gym’s revenues decreased “most months” of 1998.

Issues Asserted on Appeal

On appeal, the Parsonses assert the following issues:

I. Whether the trial court committed reversible error by permitting Aaron’s tortious-interference claim to go to the jury.
II. Whether the trial court committed reversible error by admitting parol evidence to vary the terms of the written contract between the corporation and Patrick Aaron.
III. Whether the compensatory-damages award for breach of contract is excessive and warrants a new trial.
IV. 'Whether the jury’s award of compensatory damages for tortious interference is excessive.
V. Whether the trial court’s remitted punitive-damages award of $60,000 on the tortious-interference claim is excessive.

We conclude that the trial court improperly denied Jim Parsons’s motion for a judgment as a matter of law on Aaron’s tortious-interference claim; we reverse the judgment entered on the jury’s verdict in favor of Aaron on his tortious-interference claim and render a judgment in favor of Jim Parsons. Because of our resolution of this issue, we need not address the challenge to the compensatory- and punitive-damages awards on that tortious-interference claim (Issues IV and V). We find no reversible error in the trial court’s ruling regarding parol evidence. We reverse the judgment entered for Aaron on his breach-of-contract claim and remand the cause to the trial court for a new trial on that claim.

Discussion

I. Whether the trial court committed reversible error by permitting Aaron’s tortious-interference claim to go to the jury.

Jim Parsons argues that the trial court committed reversible error by submitting Aaron’s claim of tortious interference to the jury because, he says: (a) Jim Parsons was not a third party or a “stranger” to the business relations between Aaron and Jimbo; (b) Aaron failed to prove that Jim Parsons intentionally interfered with Aaron’s relationship with Jimbo or the corporation; (c) Aaron failed to prove a lack of justification for Parsons’s interference; and (d) Aaron failed to prove any damages resulting from Parsons’s interference. We agree that the trial court improperly submitted the tortious-interference claim to the jury. We reverse its judgment and render judgment for Jim Parsons on this issue.

This Court recently recognized that to establish tortious interference with contractual or business relations a plaintiff must prove:

“ T) the existence of a contract or business relation; 2) the defendant’s knowledge of the contract or business relation; 3) intentional interference by the defendant with the contract or business relation; 4) the absence of justification for the defendant’s interference; and 5) damage to the plaintiff as a result of the interference.’ ”

Ex parte Awtrey Realty Co., 827 So.2d 104, 108-109 (Ala.2001), quoting Soap Co. v. Ecolab, Inc., 646 So.2d 1366, 1371 (Ala.1994).

Justification has been recognized both as an element to be proved by the plaintiff and as an affirmative defense to be pleaded and proved by the defendant. Compare Awtrey Realty, supra, and Pakruda v. Cross, 669 So.2d 907, 909 (Ala.Civ.App.1995); BellSouth Mobility, Inc. v. Cellulink, Inc., 814 So.2d 203 (Ala.2001). As we noted in BellSouth Mobility, “ ‘it is illogical to continue to list an absence of justification as one of the elements of the plaintiffs cause of action and then to place the burden on the defendant to disprove it.’ ” 814 So.2d at 212 n. 5, quoting Century 21 Academy Realty, Inc. v. Breland, 571 So.2d 296, 298 (Ala.1990).

We agree with the language quoted in BellSouth Mobility. We reiterate that justification for interference with contractual or business relations is an affirmative defense to be pleaded and proved by the defendant.

In addition to the elements recited above, this Court has also recognized:

“ ‘After proving the existence of a contract, it is essential to a claim of tortious interference with contractual relations that the plaintiff establish that the defendant is a “third party,” i.e., a “stranger” to the contract with which the defendant allegedly interfered.’ Atlanta Market Ctr. Management Co. v. McLane, 269 Ga. 604, 608, 503 S.E.2d 278, 282 (1998); see also Alcazar Amusement Co. v. Mudd & Colley Amusement Co., 204 Ala. 509, 86 So. 209 (1920). This is so, because ‘a party to a contract cannot, as a matter of law, be hable for tortious interference with the contract.’ Lolley v. Howell, 504 So.2d 253, 255 (Ala.1987).
“ ‘One is not a stranger to the contract just because one is not a party to the contract....’ McLane, 269 Ga. at 608, 503 S.E.2d at 282 (emphasis added [in BellSouth Mobility]). As we recently stated in Colonial Bank v. Patterson, 788 So.2d 134 (Ala.2000): ‘[W]hen tripartite relationships exist and disputes arise between two of the three parties, then a claim alleging interference by the third party that arises from conduct by the third party that is appropriate under its contract with the other two parties is not recognized.’ ”

BellSouth Mobility, 814 So.2d at 212. Thus, we examine these elements in light of the evidence included in the record.

Aaron established the existence of a contract or business relationship with Jimbo or the corporation. The parties admitted that the pro shop agreement and the personal-training agreement, as well as the lifetime gym membership, were in effect on August 10,1998, when Patrick Aaron’s agreements were terminated and he was forbidden to return to World Gym. Additionally, Jim Parsons admitted that he was aware of the existence of those agreements. Thus, the first and second elements of the tort of interference are not in dispute.

However, the evidence established that Jim Parsons undertook to act on behalf of the corporation in numerous ways. Parsons was involved in obtaining the financing for the purchase of the gym, and Jim-bo testified that his father came to the gym on more than one occasion to talk with him about the business. Jimbo also testified that Parsons interviewed World Gym employees on other occasions. Additionally, Jimbo instructed Patrick Aaron and other employees to contact Jim Parsons with certain legal and business questions.

However, it is significant that, as early as March 1998, Jim Parsons began making what appear to be unilateral business decisions on behalf of the corporation. Although those decisions may have contradicted Jimbo’s earlier directives, Jimbo knew of those decisions and allowed those decisions to stand. Jimbo was even present when Parsons made the majority of the decisions at issue in these actions. Accordingly, Jimbo, the sole shareholder and sole officer of the corporation, ratified those actions.

From this evidence, we conclude that Jim Parsons was acting as an agent for the corporation and/or as an agent for Jimbo and, thus, that Jim Parsons was not a third party to the business relations of Jimbo, the corporation, and Aaron. We conclude that, as a matter of law, Jim Parsons cannot be liable for tortious interference with the business or contractual relations between Jimbo, the corporation, and Aaron. We reverse the judgment entered on the jury’s verdict and render a judgment in favor of Jim Parsons.

II. Whether the trial court committed reversible error by admitting parol evidence to vary the terms of the written contract between the corporation and Patrick Aaron.

The corporation and Jimbo assert on appeal that the trial court erred in allowing Aaron to testify about negotiations that occurred before the execution of the Sale Agreement and regarding the $2,000,000 asking price. The Parsonses argue that the trial court erred by allowing this testimony because it was offered only to vary the terms of the Sale Agreement, because the Sale Agreement contained an integration clause and because the Sale Agreement was unambiguous. Further, because the jury awarded Aaron exactly $300,000 ($193,000 in compensatory damages and $107,000 in punitive damages)— the difference between the $2,000,000 and the amount reflected in the Sale Agreement as the purchase price for World Gym — the Parsonses argue that the impermissible parol evidence prejudiced their case. We reject that argument, finding no error in the trial court’s evidentiary ruling.

First, the evidence complained of could have been offered for purposes other than to vary the terms of the Sale Agreement, which the Parsonses contend is a fully integrated writing. Marriott Int’l, Inc. v. deCelle, 722 So.2d 760 (Ala.1998) (general rule is that if a written contract exists, the rights of the parties are controlled by that contract and parol evidence is not admissible to contradict, vary, add to, or subtract from its terms; however, if the contract is ambiguous, parol or extrinsic evidence will be allowed to clarify the contract). Aaron presented the pro shop agreement and the personal-training agreement as the agreements with which Jim Parsons had wrongfully interfered and which had been breached. However, if those agreements were deemed to be ambiguous, then the evidence relating to the negotiations and how the pro shop agreement and the personal-training agreement came about could have been introduced for the purpose of explaining ambiguities surrounding those documents rather than for the sole purpose of varying the terms of the Sale Agreement. See Anderson Bros. Chrysler Plymouth Dodge, Inc. v. Hadley, 720 So.2d 895 (Ala.1998) (if a written agreement is ambiguous, then parol evidence is admissible to clarify its terms).

In testifying as to the value of those agreements, Patrick Aaron explained why he entered into those agreements and what he expected to earn under them. Aaron’s testimony contradicted Jimbo’s explanation of why the parties entered into those agreements. This conflict in the testimony established that the parties had different understandings of how they arrived at the $1,700,000 purchase price reflected in the Sale Agreement and different understandings of why they entered into the pro shop agreement and the personal-training agreement. In explaining those discrepancies, Aaron and Oei testified that the pro shop and personal-training agreements were negotiated as part of the purchase transaction; Jimbo testified that they were negotiated as separate transactions. From a reading of the record, it is clear that the trial court could have concluded that whether the Sale Agreement, the pro shop agreement, and the personal-training agreement were intended to be construed together or separately was ambiguous. This ambiguity justified the trial court’s evidentiary ruling on parol evidence.

Additionally, the record is unclear as to the dates on which, and the order in which, the agreements were executed. The Sale Agreement bears a typed-in date of January 30, 1998. Jimbo testified that, although the pro shop agreement bears the date of January 28, 1998 — before the execution of the Sale Agreement — the parties actually executed the pro shop agreement several days after they executed the Sale Agreement. Moreover, the personal-training agreement was unexecuted and undated, but the parties honored it. Thus, Jim-bo’s testimony, as well as other portions of the record, revealed some ambiguities involving when each of the agreements was executed. Those ambiguities justified the trial court’s ruling on parol evidence. See Crimson Indus., Inc. v. Kirkland, 736 So.2d 597 (Ala.1999) (because the parol evidence rule applies only to evidence of prior and contemporaneous negotiations, it does not exclude evidence of negotiations that took place after the written agreement was made); Stephens v. Stephens, 680 So.2d 329 (Ala.Civ.App.1996) (the parol evidence rule excludes only evidence of prior or contemporaneous agreements and has no application to subsequent agreements). For these reasons, we find no reversible error in the trial court’s eviden-tiary ruling.

III. Whether the compensatory-damages award for breach of contract is excessive and warrants a new trial.

The Parsonses allege that the $92,000 awarded as compensatory damages on Aaron’s breach-of-contract claim is excessive and warrants a new trial. We agree.

Aaron claimed that the Parsonses had breached his pro shop agreement, his personal-training agreement, and his lifetime-membership agreement. Aaron testified that his profits from the pro shop sales were as much as $3,000 per month. Jim Parsons admitted that, at the time he terminated Aaron’s pro shop agreement, at least one month remained under that agreement. Although the parties disputed whether that agreement would have terminated at the end of that month or whether it would have been automatically renewed for another six-month term, the trial court instructed the jury that the term of the pro shop agreement was only six months. Thus, the most the jury could have awarded for the breach of this agreement was $3,000.

The evidence also established that Aaron’s personal-training agreement had been breached. He testified that, as a result, he was forced to join another gym in order to train his clients and that he lost clients who found the location of the new gym inconvenient. However, Aaron presented no evidence as to the financial losses associated with the breach of that agreement.

Aaron also lost the benefit of his free lifetime family membership at World Gym. Although this agreement clearly had some value to Aaron, no evidence of that value was presented, so we do not know, and the jury could not have known, what value to attribute to the breach of this agreement.

We recognize that some evidence was presented indicating that the pro shop agreement, the personal-training agreement, and the lifetime membership at the gym were intended to supplement the Sale Agreement in the amount of $300,000. This testimony could have been construed by the jury as evidence of Aaron’s damages resulting from the breach of contract. However, Aaron presented no evidence to establish that the anticipated value of these agreements to him was $300,000.

“ ‘ “It is well settled that damages awarded for breach of contract should return the injured party to the position he would have been in had the contract been fully performed.” ’ ” Mannington Wood Floors, Inc. v. Port Epes Transp., Inc., 669 So.2d 817, 822 (Ala.1995) (quoting Med Plus Props, v. Colcock Constr. Group, Inc., 628 So.2d 370, 375 (Ala.1993), quoting in turn Cobbs v. Fred Burgos Constr. Co., 477 So.2d 335, 338 (Ala.1985)). The Manning-ton Wood Floors Court also recognized:

“In computing damages for breach of contract, a jury need not achieve ‘mathematical precision.’ Indeed, ‘ “the uncertainty which prevents a recovery is uncertainty as to the fact of the damage and not as to its amount.” ’ Thus, a ‘ “plaintiff will not be denied a substantial recovery if he has produced the best evidence available and it is sufficient to afford a reasonable basis for estimating his loss.” ’ ”

669 So.2d at 822 (citations omitted).

However, damages may not be awarded where they are remote or speculative. A jury must have some reasonable basis for the amount of its award. “ “Where, as here, the jury verdict cannot be justified upon any reasonable hypothesis presented by the evidence, it ought to be set aside upon proper proceedings as being the result of compromise or mistake ....’” Ferguson v. Cadle Co., 816 So.2d 473, 476 (Ala.2001), quoting Donavan v. Fandrich, 265 Ala. 439, 440, 92 So.2d 1, 2 (1957).

Although we find sufficient evidence in the record from which the jury could have determined that the contracts were breached and that Aaron was damaged as a result of that breach, we find insufficient evidence in the record from which the jury properly could have determined the amount of damages to award on Aaron’s breach-of-contract claim to exceed $3,000. We, therefore, reverse the judgment entered on Aaron’s breach-of-contract'claim and remand this case for a new trial of that.claim.

Conclusion

The Parsonses timely filed their notices of appeal, and we deny Aaron’s motion to dismiss the Parsonses’ notice of appeal in case no. 1002086. We reverse the judgment entered on the tortious-in-terference claim and render judgment in favor of Jim Parsons on that claim. We find no reversible error regarding the trial court’s ruling on parol evidence; we affirm that ruling. We reverse the judgment entered on the breach-of-contract claim and remand it to the trial court for a new trial. We dismiss as moot Aaron’s cross-appeal from the trial court’s order of remittitur.

1002086 and 1002087 — MOTION TO DISMISS APPEAL DENIED; AFFIRMED IN PART; REVERSED IN PART; JUDGMENT RENDERED IN PART; REMANDED.

HOUSTON, BROWN and HARWOOD, JJ., concur.

SEE and LYONS, JJ., concur specially in part and concur in the result in part.

JOHNSTONE and WOODALL, JJ., concur in part and concur in the result in part.

MOORE, C.J., concurs in part and dissents in part.

1010105 — CROSS-APPEAL DISMISSED AS MOOT.

HOUSTON, SEE, LYONS, BROWN, JOHNSTONE, HARWOOD, and WOODALL, JJ., concur.

MOORE, C.J., dissents.

LYONS, Justice

(concurring specially in part and concurring in the result in part).

In case no. 1002086 and case no. 1002087, I concur in reversing the trial court’s judgment and rendering a judgment for Jim Parsons on the tortious-interference claim. I express no opinion as to the admissibility of parol evidence because I consider a ruling on that issue unnecessary. I also concur in reversing the trial court’s judgment on the breach-of-contract claim and remanding the case for a new trial on that issue.

In case no. 1010105,1 concur.

SEE, J., concurs.

JOHNSTONE, Justice

(concurring in part and concurring in the result in part).

I concur in the holding that the Parsons-es’ appeal was timely. The operation of Rule 59.1, Ala. R. Civ. P., supplanted the interlocutory July 5 conditional denial of the Parsonses’ Rule 59 motion with an absolute denial on the July 6 deadline for ruling. The Parsonses filed their appeal on the forty-second day thereafter.

I also concur in the conclusion that Aaron’s cross-appeal is moot. One of the reasons is that the Parsonses’ Rule 59 motion for, amidst other relief, a remittitur was absolutely denied by operation of law on July 6, as already mentioned. The subsequent filings by the parties and ruling by the trial court on the topic of remittitur were nullities.

I concur in the result of reversing the judgment of the trial court in favor of Aaron on the tortious interference claim and rendering a judgment in favor of Jim Parsons on that claim. Jim Parsons’s evidence that he was the agent of his son Jimbo and the corporation was not contradicted by substantial evidence.

I concur in the result of reversing the judgment in favor of Aaron on the breach of contract claim. I agree that Aaron did not prove more than $3,000 in damages for breach of contract. I also respectfully submit, however, contrary to the rationale in the main opinion, that the trial court erred to reversal in allowing Aaron to introduce evidence that the parties orally agreed on a $2,000,000 price for the gym before they entered the written contract fixing the price at $1,700,000. Neither Aaron nor the main opinion identifies any ambiguity in that contract itself or any of the other written agreements themselves. Contradictions in the testimony of witnesses do not constitute ambiguities in contracts — much less any ambiguity that would justify the admission of testimony to a $300,000 difference in the price of the gym. This testimony apparently irrationally influenced the jury in that it awarded Aaron a total of exactly $300,000 apportioned among the various claims and combinations of defendants.

WOODALL, Justice

(concurring in part and concurring in the result in part).

In case no. 1002086 and case no. 1002087, I concur in the result. In case no. 1010106,1 concur.

MOORE, Chief Justice

(concurring in part and dissenting in part).

I respectfully dissent from the main opinion insofar as it reverses the judgment entered on the jury’s verdict and renders a judgment in favor of James T. Parsons as to the tortious-interference claim. I believe the main opinion errs in deciding that Parsons was acting as an agent for James C. Parsons, Inc., or James C. Parsons (“Jimbo”), and, thereby deciding the tor-tious-interference claim in Parsons’s favor. “As this Court has held, ‘the existence and scope of an agency relationship are questions of fact to be determined, by the jury.’ Lee v. YES of Russellville, Inc., 784 So.2d 1022, 1028 (Ala.2000), quoting Standard Plan, Inc. v. Tucker, 582 So.2d 1024, 1029 (Ala.1991) (emphasis added). See also Thrash v. Credit Acceptance Corp., 821 So.2d 968, 972 (Ala.2001); Tyson Foods, Inc. v. Stevens, 783 So.2d 804, 808 (Ala.2000). Therefore, I also dissent from the dismissal of the cross-appeal.

I concur with the remainder of the main opinion.

      . Although the complaint filed in this action lists the name of the corporation as James C. Parsons, Inc., and the parties referred to the corporation as James C. Parsons, Inc., the record reflects that the actual name of the corporation was “JCP, Inc.” In this opinion we refer to the corporate plaintiff as did the complaint and the parties — James C. Parsons, Inc.

      . The Parsonses do not appeal from the judgment entered on Aaron's conversion claim.

      . Before Aaron's complaint was filed, Jim Parsons had acquired 90% of the shares of the corporation and had changed the name of the corporation to Southoak, Inc. Accordingly, in his amended complaint, Aaron alleged breach-of-contract and conversion claims against Jimbo, Jim Parsons, and Southoak, Inc. Aaron alleged tortious interference only against Jim Parsons.

      . We note that although Aaron’s motion to dismiss was filed in case no. 1002086, the same arguments apply to case no. 1002087.

      . Pursuant to Rule 59.1, Ala. R. Civ. P., the trial court may extend the time in which motions may remain pending, so long as it has the express consent of all parties. The record reflects that all parties expressly consented to an extension until July 6, 2001, unless the trial court ruled upon the motions before that date. No further extensions are reflected in the record; thus, as of July 6, all posttrial motions in this case that had not been ruled upon by the trial court were deemed denied as a matter of law.

      . John Oei acted as a consultant and adviser to Jimbo while Jimbo investigated and negotiated the purchase from Aaron of World Gym. His involvement in the transaction and his testimony at trial is discussed in more detail later in this opinion.

      . Patrick Aaron's mother, Patricia Cottrell, was the majority shareholder in that corporation.

      . Jimbo, however, returned to the gym after this conversation with Aaron and immediately told Kitchings what Aaron had said.

      . Although not completely clear from the record, it appears that Aaron did not complete this transaction until after Parsons terminated his agreements with World Gym.

      . The record sometimes refers to Kitchings as the director of the gym and sometimes as the general manager of the gym. We assume that these terms are interchangeable.

      . The jury also heard evidence indicating that an oral modification was made to the Sale Agreement and the noncompetition agreement. The parties originally interpreted those agreements to prohibit Patrick Aaron from even joining another gym. However, Jim Parsons testified that "that was not our intent to restrict [Aaron]” and when Aaron asked for the right to train clients at other gyms "we told him that it was no problem at all.”

      . As part of his response to this line of questioning, Jimbo stated that he believed the pro shop agreement did not automatically renew but that it was to be "reviewed for renewal” at the end of six months.

      . The record contains conflicting accounts of where this meeting took place. One witness testified that the meeting took place at Parsons’s home; another witness testified that the meeting took place at Shoal Creek Country Club.

      . Although the record is unclear, we assume this meant McNeeley was paid $2,500 per month.

      . In their cross-appeal, Patrick Aaron and Pat & Pat, Inc., appeal from the trial court's order remitting the punitive-damages award. Based on our resolution of the Parsonses' appeals, this issue is moot.


source: Caselaw Access Project

author: PER CURIAM. MOORE, Chief Justice

license: Public Domain

text:
    Barry WOOD d/b/a Baldwin Broadcasting Company v. William H. PHILLIPS.
    1002091.
    Supreme Court of Alabama.
    Nov. 8, 2002.

      Steven L. Nicholas and Michael A. Youngpeter of Olen, Nicholas & Copeland, P.C., Mobile, for appellant.
    Thomas Troy Zieman, Jr., Anthony M. Hoffman, and Robin B. Taylor, of Zieman, Speegle, Jackson & Hoffman, L.L.C., Mobile, for appellee.
   PER CURIAM.

This case involves a dispute between Barry Wood and William H. Phillips over the ownership of FM radio broadcast stations WAVH in Daphne and WZEW in Fairhope. The central question presented is whether there was sufficient evidence to show, as the jury determined in answers to special interrogatories, that a partnership was created in December 1992, between Wood and Phillips. This is the .second time this case has been before this Court. See Wood v. Phillips, 828 So.2d 648 (Ala.2001) (“Wood I”), where this Court affirmed an order of the trial judge appointing a receiver. Because we find that there was insufficient evidence to show that a partnership was created in December 1992, as determined by the jury in answer to special interrogatories, we reverse and remand.

Facts

As stated above, this is the second time this case has been before this Court. In Wood I this Court, in affirming the trial court’s order appointing a receiver, summarized the facts pertinent to the case, as follows:

“From 1987 to 1997, William H. Phillips was a 50% owner of Faulkner-Phillips Media, Inc., the licensee of an FM radio station in Bay Minette, Alabama. In June 1988, Phillips learned that the Federal Communications Commission (‘FCC’) had published a notice, inviting applications for a permit for a new FM radio station frequency in Bay Minette, Alabama. Upon learning this, Phillips telephoned the attorney who handled FCC matters for him, Washington, D.C., lawyer Barry D. Wood, for advice on the appropriate way to apply for a license for that frequency. Phillips alleges that he and Wood discussed pursuing the application for the frequency together as full partners, but that Wood advised him that Wood alone should apply for the license, and conceal the existence of the partnership from the FCC. Wood disputes this and contends that because Phillips owned a license to another frequency in south Alabama, FCC regulations prohibited Phillips from applying for, or owning, any interest in the new frequency. Therefore, Wood asserts, Phillips encouraged him to apply for the license for the new frequency. Wood maintains that the two men did not discuss a role for Phillips in the new station, much less any ownership interest.
“The ‘filing window for the new frequency closed in July 1988. Because the filing window closed without attracting a single application, the FCC’s rules provided that the first application from a qualified candidate would receive the permit for the frequency. Wood applied for the permit under the name Baldwin Broadcasting Company, and the FCC granted a broadcast-construction permit to the Baldwin Broadcasting Company on March 15, 1990. On May 16, 1990, Wood submitted a required initial-ownership report to the FCC. In that report he certified that he was the sole owner of the Baldwin Broadcasting Company and that the company had no contracts, agreements, or other legal instruments reflecting that additional persons had any ownership rights in the company.
“Although the two men dispute Phillips’s role at the new station, it appears undisputed that Phillips located a studio site, hired the contractor to build the studio and the office, rented tower space for the transmission antenna, and installed the transmitter for the station. Phillips also managed the new station, hired disc jockeys and sales staff, selected a music format, and conducted initial marketing. Phillips alleges that he invested more than $130,000 in the station during his six years of managing the station. The station began broadcasting on May 15,1993.
‘Wood argues that Phillips was not a partner in Baldwin Broadcasting Company; rather, he contends that Phillips was simply an employee of Baldwin Broadcasting Company. Phillips, however, alleges that he repeatedly asked Wood to formalize what he says was their partnership. It is undisputed that Wood and Phillips negotiated an employment agreement pursuant to which Phillips could receive additional compensation if the new station generated cash flow for Wood or if the new station was sold for a profit during the period of the agreement.
“In the spring of 1997, AGM Nevada, LLC, offered to purchase the new station for $4,000,000. Wood alleges that, at this time, Phillips began complaining that the bonus he would receive from the sale of the station would be subject to ordinary income tax, and that, as a favor to Phillips, Wood requested a taxpayer-identification number for a partnership and submitted a federal partnership tax return showing him and Phillips as partners. On that return Wood attributed much of the station’s revenue to the partnership, which he says did not exist as an entity. In his version of the events that took place during this period, Phillips contends that in 1997 he was finally able to convince Wood to formally recognize their partnership and that Wood filed, under penalty of perjury, a tax return for the partnership, Baldwin Broadcasting Company, that same year. The sale of the station to AGM Nevada was never completed; however, AGM Nevada sold one of its radio stations to Baldwin Broadcasting Company.
“In 1999, Cumulus Broadcasting Company approached Phillips about purchasing the two radio stations in Bay Mi-nette owned by Baldwin Broadcasting Company for $6,000,000. As the result of negotiations, Phillips was able to increase the purchase price to $8,075,000, and a letter of intent was drafted. The letter of intent was signed by Phillips as the operating partner, by Wood as president of Baldwin Broadcasting Company, and by Cumulus as the prospective purchaser.
“Phillips contends that Wood first began denying the existence of the partnership and began trying to force Phillips out of the business after the letter of intent for the sale of the stations to Cumulus Broadcasting Company was signed. However, Wood contends that in late 1998 he learned that Phillips had written himself extra paychecks and had effectively given himself an unauthorized $3,000 per month raise.
‘Wood states that he first received notice that Phillips was claiming that the two men had formed a partnership in mid-May 1999, when he received a letter from Phillips’s attorney. Wood says that upon receiving this letter, he attended a meeting with Phillips and his attorneys in Mobile, at which Wood indicated he was terminating Phillips’s employment for cause. However, Wood says, Phillips convinced him to ‘suspend’ the termination while the two men attempted to resolve their differences. Wood says that after that meeting he increased his scrutiny of Phillips’s activities. After discovering that Phillips had held himself out as an owner of the station, had made certain unauthorized personnel changes, and had changed the program format without Wood’s approval, Wood terminated Phillips’s employment on September 13,1999.
“On September 16, 1999, Phillips filed a complaint in the Circuit Court of Mobile County. Phillips’s complaint alleged that he held an ownership interest in the stations and that Wood, doing business as Baldwin Broadcasting Company, had breached the oral partnership agreement between the two men, had misrepresented the actual nature of their relationship, and had breached his fiduciary duty to Phillips, as a partner.
“After terminating Phillips’s employment, Wood assumed the managerial role of the two stations. After Wood took over, the stations’ advertising revenues significantly decreased. Because the value of the stations was declining under Wood’s management, Phillips petitioned the trial court to appoint a receiver on September 11, 2000. Following a five-day hearing in which ore tenus evidence was presented, the trial court granted Phillips’s motion and appointed a receiver on November 1, 2000. Only two days later, on November 3, 2000, Wood filed a petition in bankruptcy in the United States District Court for the Eastern District of Virginia. Although Phillips states that Wood filed the bankruptcy petition to avoid the appointment of a receiver, the bankruptcy petition is not included in the record. As a result of the pending bankruptcy proceeding in Virginia, the circuit court’s decision to appoint a receiver was automatically stayed until the Virginia court lifted the stay in mid-December 2000.
“On December 13, 2000, Wood moved the trial court to reconsider its order appointing a receiver, or, in the alternative, to enter an order requiring the receiver to post bond in the amount of $6,000,000. Although the trial court denied Wood’s motion for reconsideration, it ordered the receiver to post a bond of $25,000 and Phillips to post a bond of $100,000. The trial court also directed the receiver to file an application with the FCC for consent to the assignment of the license before he assumed control of the stations. Wood submitted to the FCC an objection to the assignment on January 12, 2001. Following the trial court’s denial of his motion for reconsideration, Wood appealed the trial court’s ruling....”

823 So.2d at 649-51. These facts were gleaned from the record as it existed after the trial court’s five-day ore tenus hearing on the issue of the appointment of a receiver.

This Court released its opinion in Wood I on December 21, 2001.1 While the appeal from the order appointing a receiver in' Wood I was pending, a jury trial was held in this case. The trial lasted from March 19, 2001, to April 5, 2001. The jury returned a special verdict, answering special interrogatories submitted by the court as permitted by Rule 49(b), Ala. R. Civ. P., finding that a partnership had been created between Wood and Phillips in December 1992, and that Phillips’s interest in the partnership, as of September 13, 1999, was 40%.

One of the critical questions presented by this appeal is the effect of an “employment agreement” dated December 30,1992 (“the employment agreement”), in which Phillips was identified as the manager and “Baldwin Broadcasting Company, a sole proprietorship,” was identified as the employer. The employment agreement, among other things, set forth the duties Phillips was to perform as manager of the stations and the salary he would receive. The employment agreement also provided for an incentive salary to Phillips based on the station’s net income and further provided that, in the event the stations were sold, Phillips would receive the greater of $80,000 or 30% of the net proceeds of the sale. The employment agreement contained a so-called merger clause; that clause stated:

“This Agreement contains the entire agreement and understanding between the parties and integrates all prior discussions between them with respect to the subject matter hereof. This Agreement does not create a partnership between the parties.”

The complaint filed by Phillips consisted of four counts. Count one alleged a breach of contract in failing to pay Phillips the incentive payments provided for in the employment agreement. Counts two and three alleged misrepresentation and breach of contract, respectively, based on Wood’s alleged representations that Phillips would be given an ownership interest in the stations. Count four alleged that Wood had breached his fiduciary duty by promising Phillips that he would be given an ownership interest in the stations based on the attorney-client relationship between Phillips and Wood, as well as their relationship as “de facto (if not on paper) partners.”

Wood answered the complaint, and counterclaimed, alleging eight causes of action against Phillips. In his counterclaim, Wood alleged that Phillips had violated the Alabama Trade Secrets Act; that he had interfered with Wood’s contractual and business relations; that he had conspired to misappropriate items for his personal benefit; that he had converted corporate funds; that he had defamed Wood and had thereby damaged Wood’s reputation; that he had negligently discharged his duties under the employment agreement; that he had wantonly discharged his duties under the employment agreement; and that he had breached the employment agreement.

On September 12, 2000, Phillips amended his complaint to add count five, in which he alleged that Wood had breached a duty of due care that, he asserted, Wood owed “to the Partnership and Mr. Phillips, the partner.” Phillips also alleged in count five that Wood violated his obligation of good faith and fair dealing that partners owe each other.

On March 20, 2001, during the first day testimony was taken in the trial of this case, Phillips dismissed count one of his complaint, pertaining to the incentive payments he claimed were due him pursuant to the provisions of the employment agreement.

At the close of Phillips’s case, Phillips filed a motion to amend the pleadings to conform to the evidence; the trial court granted the motion. Count three was then amended to include a claim that the parties’ actions had created a partnership and that Phillips had been expelled from the partnership in September 1999, when his employment was terminated, creating a dissolution of the partnership.

Also at the close of Phillips’s case, Wood filed a motion for a judgment as a matter of law; in that motion he asserted that Phillips’s claim that a partnership had been created was barred because any such partnership would be illegal as having been created to mislead to the FCC. Wood also asserted that there was insufficient evidence as a matter of law to support Phillips’s claim as to the existence of a partnership. At the close of all of the evidence, Wood filed a second motion for a judgment as a matter of law, in which he reasserted the claims he had previously made in his first motion for a judgment as a matter of law. The trial court denied both motions.

At the conclusion of the trial, the trial court submitted three interrogatories and two verdict forms to the jury, and the jury returned a verdict finding that a partnership, in which Phillips was a partner, was formed in December 1992, and that as of September 13, 1999, Phillips’s interest in the partnership was 40%. The jury also found for Wood on Phillips’s misrepresentation claim and found for Phillips on Wood’s defamation and breach-of-contract claims.

Subsequently, Wood timely filed a motion for a judgment as a matter of law, or, in the alternative, for a new trial. On July 18, 2001, the trial court issued an order, which the trial court amended on September 5, 2001. In the amended order, which it made final pursuant to the provisions of Rule 54(b), Ala. R. Civ. P., the trial court denied Wood’s motion for a judgment as a matter of law, or, in the alternative, for a new trial. Wood appealed.

Standard of Review

This Court recently stated the standard of review for the denial of a motion for a judgment as a matter of law in Liberty National Life Insurance Co. v. Daugherty, 840 So.2d 152 (Ala.2002):

“ ‘ “A judgment as a matter of law is proper only where there is a complete absence of proof on a material issue or where there are no controverted questions of fact on which reasonable people could differ and the moving party is entitled to a judgment as a matter of law.” ’ Southern Energy Homes, Inc. v. Washington, 774 So.2d 505, 510-11 (Ala.2000), quoting Locklear Dodge City, Inc. v. Kimbrell, 70S So.2d 303, 304 (Ala.1997). In reviewing the denial of a motion for a judgment as a matter of law, this Court is required to view the evidence in a light most favorable to the nonmovant. Kmart Corp. v. Kyles, 723 So.2d 572, 573 (Ala.1998). Therefore, where the evidence in the record is disputed, we present it in a light most favorable to Daugherty.”

840 So.2d at 156.

The trial court also denied Wood’s alternative motion for a new trial. We set out our scope of review in such a case in Acceptance Insurance Co. v. Brown, 832 So.2d 1, 12 (Ala.2001):

“The denial of a motion for a new trial is within the sound discretion of the trial court. Williams v. Williams, 786 So.2d 477, 479 (Ala.2000) (citing Hill v. Cherry, 379 So.2d 590 (Ala.1980)).”

Discussion

We first consider Wood’s argument that the trial court erred in denying his motion for a judgment as a matter of law, because, he says, Phillips did not present evidence of a contract establishing a partnership between him and Phillips and that Phillips should not have been permitted to present any evidence as to whether a partnership was created, on the ground that the employment agreement contained a merger clause and that the admission of any evidence relating to an alleged partnership agreement would violate the provisions of the parol evidence rule. Wood argued before the trial court, and he argues on appeal, that the employment agreement, which specifically states, “This Agreement does not create a partnership between the parties,” contained the entire agreement of the parties.

Although Wood concedes that evidence of the existence of an alleged partnership agreement was properly admitted on the question of whether he had made certain misrepresentations to Phillips, he nevertheless says that once the jury found in his favor on Phillips’s misrepresentation claim, the jury should not have considered such evidence in deciding whether a partnership was in fact created.

Phillips argues in his brief to this Court, that once he dismissed count one of his complaint, he asserted no claim whatsoever under the employment agreement and that the jury was free to consider all the evidence relating to the formation of a partnership under count three of his complaint, where he asserted that “Wood’s promises to [him] that [he] would be made an owner of WAVH and that he would be made an owner of WZEW constituted a contract between defendants and [him].”

Phillips further argues that the record shows that in count three of his complaint he claimed that there was a separate oral agreement to create a partnership and that the provisions of the employment agreement were not controlling. He argues that the evidence offered to prove the oral agreement to create a partnership was not offered to interpret the employment agreement, but rather was offered to prove a separate and entirely different oral agreement to create a partnership.

In arguing that the trial court erred in refusing to grant his motion for a judgment as a matter of law, Wood states the following in his brief to this Court:

“The trial court erred by denying Wood’s motion for a JML [judgment as a matter of law] as to the jury’s verdict finding a partnership between Wood and Phillips originating in December 1992. Phillips asserted that he and Wood entered into an oral partnership beginning in 1988 concerning the subject radio stations. Phillips repeatedly testified that the partnership he was seeking to establish originated in 1988. The jury rejected Phillips’ claim of a 1988 partnership, but the jury determined that a partnership was created in December 1992.
“There is a dearth of evidence supporting the jury’s finding of a December 1992 partnership. The only possible evidence upon which a jury could have based its finding of a partnership is the pre-December 1992 partnership representations which Phillips testified to in connection with his fraud claim. That evidence cannot be considered with respect to Phillips’ partnership claim.
“The [employment agreement] between Wood and Phillips contains a merger agreement, and Phillips’ own testimony demonstrates conclusively that the statements and evidence concerning Phillips’ claim of an oral partnership were part of the same subject matter of the parties’ [employment agreement]. Consequently, the parol evidence rule and the merger clause in the [employment agreement] preclude that evidence from being considered to vary or contradict the [employment agreement].
“The testimony by Phillips establishes that Phillips’ claimed partnership directly contradicts the [employment agreement] and Phillips admits the same. Consequently the testimony and evidence relating to an alleged oral partnership formed between the parties outside of the [employment agreement] violated the parol evidence rule and could not have been properly considered by the jury in reaching its finding of a December 1992 partnership. That being the case, there was no proper evidence supporting Phillips’ claim of an oral partnership, and the trial court erred by not granting Wood’s motion for a JML with respect to that claim.”

(Wood’s brief, pp. 13-15.)

In support of his argument, Wood cites Infiniti of Mobile, Inc. v. Office, 727 So.2d 42 (Ala.1999), and Lake Martin/Alabama Power Licensee Assoc. v. Alabama Power Co., 601 So.2d 942 (Ala.1992). In Infiniti, this Court stated:

“Merger clauses such as the one appearing on the front of the second retail-buyer’s-order form signed by Mr. Office, are enforceable under Alabama contract law. Although a merger clause does not bar the admission of parol evidence to prove fraud in the inducement of the contract, it is properly used to ensure that preliminary negotiations, whether oral or written, are either memorialized in the final contract or are not considered part of it.”

727 So.2d at 46. In Lake Martini Alabama Power Licensee Association, this Court stated:

“When fraud in the inducement has been ruled out, as it has in this case ([Lake Martin/Alabama Power Licensee Ass’n v. Alabama Power Co.,] 547 So.2d [404] at 407-08 [(Ala.1989) ]), it is clear that under Alabama law all prior statements and negotiations are merged into the written contract and that, the written agreement being the best evidence, in the absence of an ambiguity ... parol evidence will not be received to explain, contradict, vary, add to, or subtract from the express terms of the written contract.”

601 So.2d at 946. Wood’s argument is succinctly stated in his brief, as follows: “It is clear that evidence which may be admissible to attempt to prove fraud in the inducement of a contract is not to be considered in interpreting a written contract.” (Wood’s brief, p. 25.)(Emphasis added.) We agree. Based on the law as set out in Infiniti of Mobile, Inc. and Lake Martin/Alabama Power Licensee Association, we do not believe that any evidence was presented that would support the jury’s determination that a partnership between Wood and Phillips was formed in December 1992. The employment agreement was executed on December 30, 1992, and although the record does contain evidence indicating that a partnership was created after December 1992, there is no evidence in the record indicating that the parties entered into an oral partnership agreement between the date the alleged agreement was negotiated on December 30, 1992, and December 31,1992.

Based on the foregoing, we hold that the trial judge erred in entering a judgment in favor of Phillips based upon the jury’s determination that a partnership was created in December 1992. The judgment of the trial court refusing to grant Wood’s alternative motion for a new trial is, therefore, reversed and the cause remanded.

Having determined that the trial court’s judgment is due to be reversed and the cause remanded, we find it unnecessary to discuss Wood’s other issues. See National American Ins. Co. v. Boh Bros. Constr. Co., 700 So.2d 1363 (Ala.1997).

REVERSED AND REMANDED.

HOUSTON, SEE, LYONS, BROWN, JOHNSTONE, HARWOOD, WOODALL, and STUART, JJ., concur.

MOORE, C.J., dissents.

MOORE, Chief Justice

(dissenting).

I respectfully dissent from the Court’s decision to reverse the judgment based on the jury verdict and remand this case. The rationale behind the majority’s ruling is that all of the evidence relating to the existence of a partnership through December 1992 was oral evidence admitted only as to the misrepresentation claim against Barry Wood. Once the jury found for Wood on the misrepresentation claim, the majority reasons, the parol evidence rule prohibited that oral evidence from being considered on the partnership claim. Because the only evidence demonstrating that a partnership existed before 1993 was oral evidence, the Court concludes that the jury could not have reasonably found that a partnership was formed in December 1992.

The Court is correct that the oral evidence indicating that a partnership existed before December 1992 could not be used to interpret that written employment agreement. However, it was not offered to interpret that agreement, but to prove count three of Phillips’s complaint, a breach-of-contract claim entirely separate from the breach-of-contract claim relating to the employment agreement. Count three of Phillips’s complaint alleged that the parties had entered into an oral agreement to form a partnership to acquire and operate the two radio stations and that Wood breached that oral agreement. There is no reason the oral evidence of the existence of the partnership could not be used to prove that separate count of breach of an oral contract.

The record reflects that on the first day testimony was taken, during a bench conference outside the presence of the jury, Phillips stated in response to Wood’s continuing parol evidence objection that “[w]e agree [that the employment contract does not create a partnership]. We say that the oral agreement creates a partnership.” Phillips later dismissed count one of his complaint, which alleged breach of the 1992 employment agreement for failure to award him certain incentives pursuant to that contract. Phillips retained count two of his complaint, alleging that Wood had misrepresented to him that they would be partners in the ownership of the radio stations, along with count three, alleging that Wood had breached an oral agreement to create a partnership. Accordingly, the trial court instructed the jury as follows:

“Mr. Phillips would not be entitled to a favorable verdict under both theories [misrepresentation and that a partnership was created] if, indeed, either one. That will be your decision. But he cannot be entitled to a favorable verdict both for the creation of a partnership and the claim of misrepresentation.”

Thus, the jury’s finding that there was no misrepresentation but that a partnership did exist is logical.

Thus, because the oral evidence was not submitted to prove anything regarding the employment agreement, the finding on the misrepresentation claim did not preclude a finding that a partnership existed or preclude consideration of any oral evidence of the existence of such a partnership. Moreover, there need not have been a written agreement to prove that a partnership existed. As this Court has stated:

“There is no arbitrary test as to whether a partnership exists, but such a determination will be made upon all of the attendant circumstances. Adder-hold v. Adderhold, [426 So.2d 457 (Ala.Civ.App.1983) ]. A partnership arises only from an express or implied agreement among the parties and is never established by implication or by operation of law. Waters v. Union Bank of Repton, 370 So.2d 957 (Ala.1979); Adderhold v. Adderhold, supra; see also Ala. Code 1975, § 10-8-20. This Court, in Waters v. Union Bank of Repton, supra, held that ‘[t]he surrounding circumstances as well as any express agreement between the parties may evidence the intention of the parties necessary to establish such a [partnership] relationship. Hair v. Beall, 274 Ala. 699, 151 So.2d 613 (1963).’ Id. at 960, 151 So.2d 613. The right to manage and control a business is one circumstance to be considered in determining the existence of a partnership relationship. § 10-8-20; Adderhold v. Adderhold, supra.

McCrary v. Butler, 540 So.2d 736, 739 (Ala.1989).

It is beyond dispute that the jury had before it ample evidence from which to conclude that a partnership existed. As note 2 of the Court’s main opinion details, Wood filed federal tax documents in 1997 for the calendar year 1996 in which, under penalty of perjury, Wood stated that Baldwin Broadcasting Company was a partnership consisting of two partners. Again in 1998, Wood signed and filed an unemployment-tax report with the Commonwealth of Virginia in which he stated that Baldwin Broadcasting was a partnership, of which Barry Wood and William Phillips were the partners. In a letter dated August 28, 1996, Wood wrote to Phillips, “I hope the collections are flowing in a serious way this week. As you know, I am tapped out right now, ... I am not really sure how I’m going to meet the coming mortgage payment. It’s your turn to cover any shortfall on this payroll. Good luck.” Phillips introduced into evidence nine checks from his personal checking account dated from February 1998 to May 1999, showing that Phillips provided both radio stations $118,000 with which to pay payroll and other expenses. This evidence demonstrates that Phillips took on partnership responsibilities during his tenure at Baldwin Broadcasting.

Since plenty of evidence indicating the existence of the partnership was provided to the jury, the only potential problem with the jury’s finding that a partnership existed was its answer to the special interrogatory asking when the partnership began. Phillips testified that he and Wood agreed to be partners in 1988 when Wood applied to the Federal Communications Commission (“FCC”) for the rights to the frequencies of the radio stations. The jury found that the partnership began in December 1992, the same month Phillips signed the employment agreement that stated that that document did not create a partnership between Wood and Phillips. However, the employment agreement simply stated that it did not create a partnership, not that a partnership did not exist or could not be created. Moreover, the fact that the employment agreement stated that it contained “the entire agreement and understanding of the parties .... [and] does not create a partnership between the parties” does not mean the jury was required to believe that no partnership had been forged apart from the employment agreement, particularly if there was evidence to the contrary.

Indeed, this Court in Wood v. Phillips, 828 So.2d 648 (Ala.2001)(“Wood I ”), pointed to several indicia of the existence of a partnership that occurred immediately following December 1992:

“Although the evidence regarding the existence of a partnership was conflicting, the fact that Phillips assumed a managerial role at the stations appears to be undisputed. In the initial phase of the radio station, Phillips was responsible for locating a studio site, hiring the contractor to construct the studio and the office, leasing tower space for the transmission antenna, and installing the transmitter for the station. Once the radio-station building had been constructed, Phillips remained in a managerial role by hiring disc jockeys and sales staff, making all staff decisions, selecting a music format for the station, and conducting the initial marketing.”

823 So.2d at 653. As the Court pointed out in McCrary and repeated in Wood I, “[t]he right to manage and control a business is one circumstance to be considered in determining the existence of a partnership relationship.” McCrary, 540 So.2d at 739; see also Vance v. Huff, 568 So.2d 745, 748 (Ala.1990). Those acts by Phillips clearly showed a high degree of control and management of the radio stations.

As I stated above, Phillips did not dispute that the employment agreement did not create a partnership; rather, he argued that the partnership agreement was an oral agreement, and that his and Wood’s actions displayed the indicia of the partnership. The radio station went from “application” stage to full-time operation between January 1, 1993, and May 15, 1993, and it was during that period that Phillips performed most of the actions listed above, including selecting the site for the studio, setting up the studio, selecting the music format for the radio stations, creating the stations’ logos and slogans, and hiring the employees without Wood’s input. In performing those tasks, Phillips incurred expenses well in excess of $500, without Wood’s consent, despite the fact that the 1992 employment agreement specifically stated that no employee would be hired and no expense over $500 would be incurred without Wood’s express authorization.

The jury may have inferred that those acts, beginning in January 1993, in which Phillips began to manage and control the radio stations demonstrated that apart from the employment agreement, a partnership between Wood and Phillips began in December 1992, one that Wood and Phillips studiously avoided reducing to writing because Phillips already owned a radio station in Alabama, a fact that probably would have caused the FCC to withdraw the license it had granted Baldwin Broadcasting. Such a logical inference does not contradict the evidence, as the majority holds. The jury certainly was not confined to finding that the partnership began either in 1988 when Phillips claimed it did or in 1996 when written evidence of it first surfaced, but could not possibly have begun in December 1992 because the employment agreement states that it does not create a partnership. Yet, that seems to be the decision of this Court.

“[I]t is an established rule that a jury verdict cannot be set aside merely because the jury could have drawn different conclusions from conflicting evidence. As this Court stated in Harris v. Meadows, 477 So.2d 374 (Ala.1985):
“ ‘A jury verdict is presumed correct and will not be set aside unless it is without supporting evidence or is so contrary to the evidence as to render it wrong and unjust. Where the jury verdict is not plainly erroneous, we cannot consider other possible conclusions that might have been reached.’ ”

Muggins v. Neeley, 541 So.2d 506, 507 (Ala.1989).

So long as there is evidence to support the verdict and that evidence is properly before the jury, it is our duty to affirm the judgment the trial court entered on that verdict. I believe that was the case with this verdict because the oral evidence it considered in reaching its decision was not admitted for the purpose of interpreting the employment agreement. Moreover, other evidence that was not oral, namely Phillips’s integral role in starting and managing the radio stations, was also admitted and supports the jury’s finding. For all of these reasons, I believe that the judgment based on the jury verdict is due to be affirmed. I therefore dissent.

      . We note that Wood, on that appeal, presented four arguments: "(1) that any ownership interest Phillips asserts as a result of the partnership with Wood was not enforceable because the partnership, if one existed, would have been illegal, (2) that the trial court failed to articulate a legal or factual basis for its appointment of a receiver, (3) that in appointing a receiver the trial court failed to consider the effect of intervening evidence — -the filing of the bankruptcy petition — which would serve to protect the stations from financial collapse, and (4) that the trial court failed to require an adequate amount as a bond for the receiver and for Phillips.” 823 So.2d at 652.

      . For example, the record shows that, on October 15, 1997, Wood signed and filed a federal tax Form 1065, partnership income tax return for the year 1996. Under penalty of perjury, Wood stated on the return that the name of the partnership was Baldwin Broadcasting Company, and on that return, under item E, "Date Business Started," Wood had entered "1 APR. 1996." Also on October 15, 1997, Wood signed and filed a Form SS-4, Application for Employer Identification Number for Baldwin Broadcasting Company, and in item 8a of that form, "Type of entity," Wood had checked the box indicating that the entity applying for the employee identification number was a partnership, and in item 10 of that form, “Date business started or acquired,” Wood had entered "APRIL 1, 1996,” and in the space for "First date wages or annuities were paid or will be paid," Wood had entered “APRIL 1, 1997.” On March 9, 1998, Wood signed and filed an unemployment tax report with the Commonwealth of Virginia, and stated that Baldwin Broadcasting Company was a partnership, and that "Barry D. Wood” and "William H. Phillips" were the partners. Above the signature line were the words, "I certify that the information contained in this report is true and correct to the best of my knowledge.” In addition to the documentary evidence listed above, there was other evidence indicating that a partnership was created.
      It should be noted that this Court, in McCrary v. Butler, 540 So.2d 736 (Ala.1989), stated the following:
      "There is no arbitrary test as to whether a partnership exists, but such a determination will be made upon all of the attendant circumstances. Adderhold v. Adderhold, [426 So.2d 457 (Ala.Civ.App.1983) ]. A partnership arises only from an express or implied agreement among the parties and is never established by implication or by operation of law. Waters v. Union Bank of Repton, 370 So.2d 957 (Ala.1979); Adderhold v. Adderhold, supra; see also Ala.Code 1975, § 10-8-20. This Court, in Waters v. Union Bank of Repton, supra, held that '[t]he surrounding circumstances as well as any express agreement between the parties may evidence the intention of the parties necessary to establish such a [partnership] relationship. Hair v. Beall, 274 Ala. 699, 151 So.2d 613 (1963). Id. at 960. The right to manage and control a business is one circumstance to be considered in determining the existence of a partnership relationship.
      § 10-8-20; Adderhold v. Adderhold, supra.” 540 So.2d at 739. In Adderhold v. Adderhold, 426 So.2d 457 (Ala.Civ.App.1983), cited in McCrary v. Butler, the Court of Civil Appeals held:
      "It is especially difficult to determine if a partnership relationship exists where, as here, there is no written agreement.
      " 'The courts, both at common law and under the Uniform [Partnership] Act, have recognized that no one fact or circumstance can be taken as a conclusive test, nor is it possible to state any number of facts that would in all cases be decisive of the existence of a partnership relation. In the last analysis there is no arbitrary test for determining the existence of a partnership, and each case must be decided according to its own peculiar facts.’
      "59 Am.Jur., Partnerships § 39 (1971).” 426 So.2d at 459-60.