concurring in the denial of application for rehearing.
On application for rehearing plaintiffs argue that our decision resurrects the “theory of the case” doctrine. I personally abhor this doctrine and would not participate in its resurrection.
At the beginning of the hearing the trial court clearly announced that only the rule for preliminary injunction was being tried. Therefore, we could not, on appellate review of the judgment on that rule, consider the merits of the case with regard to other possible relief.