From: "Saved by Windows Internet Explorer 7" Subject: Texas Judiciary Online - HTML Opinion Date: Thu, 10 Apr 2008 23:55:42 -0500 MIME-Version: 1.0 Content-Type: multipart/related; type="text/html"; boundary="----=_NextPart_000_0024_01C89B66.62FBD5A0" X-MimeOLE: Produced By Microsoft MimeOLE V6.0.6000.16545 This is a multi-part message in MIME format. ------=_NextPart_000_0024_01C89B66.62FBD5A0 Content-Type: text/html; charset="Windows-1252" Content-Transfer-Encoding: quoted-printable Content-Location: http://www.14thcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=84367 Texas Judiciary Online - HTML Opinion
Send this document to a=20 colleague    Close=20 This Window


Reversed and Remanded and Memorandum = Opinion on=20 Remand filed April 1, 2008.

 

 

In The

 

Fourteenth Court=20 of Appeals

____________

 

NO. 14-02-00874-CV

____________

 

EQUISTAR=20 CHEMICALS, LP, = Appellant

 

V.

 

DRESSER-RAND=20 COMPANY, = Appellee

 

 

On Appeal from the = 11th District Court

Harris County, = Texas

Trial Court Cause = No. 2000-37203

 

 

M E M O R=20 A N D U M   O P I N I O N   O N   R = E M A N=20 D

This is a=20 double appeal on remand from the Texas Supreme Court.  = Equistar=20 Chemicals, LP, sued Dresser-Rand Company for damages Equistar = incurred in=20 connection with the failure of components manufactured by Dresser = and=20 installed and serviced by Dresser at Equistar=3Ds chemical=20 plant.  Prior to trial, the trial court granted a partial = summary=20 judgment limiting the elements of damages for which Equistar could = recover.  At the conclusion of trial, a jury found in favor = of=20 Equistar on all submitted theories of recovery, and the trial = court=20 entered judgment for Equistar in the amount of=20 $3,510,725.

In our=20 original opinion, we reversed the trial court=3Ds judgment=20 based on application of the economic loss rule and remanded for a = new=20 trial.  Equistar Chems., L.P. = v.=20 Dresser-Rand Co., 123 S.W.3d 584, = 586-92 (Tex.=20 App.CHouston [14th Dist.] = 2003)=20 (AEquistar = I@), = rev=3Dd, 240 S.W.3d 864 = (Tex. 2007)=20 (AEquistar = II@).  The=20 Texas Supreme Court subsequently reversed and remanded our = opinion,=20 finding that the economic loss rule argument had not been = preserved in the=20 trial court.  Equistar = II, =20 240 = S.W.3d=20 at=20 867-69.  The key issues remaining for determination on remand = are (1)=20 whether the trial court properly limited the elements of damages = that=20 Equistar could recover, and (2) whether the evidence was factually = sufficient to support the verdict.  Additionally, Equistar = has filed=20 a motion to voluntarily dismiss its warranty claims with = prejudice. =20 We grant the motion to dismiss the warranty claims and reverse and = remand=20 all remaining claims for a new trial.

Factual=20 and Procedural Background

Dresser=20 manufactured, installed, and serviced two charge gas compressors = in=20 operation at Equistar=3Ds=20 Channelview, Texas ethylene plant.  The impeller component of = one of=20 the compressors failed twice in 1999, each time causing extensive = damage=20 to the compressor itself and to adjacent plant parts.[1] =20 Equistar sued Dresser seeking to recover repair costs as well as=20 additional damages, including the cost of replacing lost ethylene=20 production, obtaining additional feedstock, and expediting = repairs. =20 Prior to trial, Dresser filed a motion for summary judgment, = arguing=20 principally that Equistar=3Ds=20 recoverable damages were governed by a limitation of liability = provision=20 between the parties.[2] =20 Dresser specifically asserted that damages should be limited to = the costs=20 of repairing the compressors.[3] =20 The trial court agreed, granted a partial summary judgment, and=20 subsequently permitted the jury to consider only repair costs in = assessing=20 damages.  Five theories of liability were submitted to the=20 jury:  negligence, manufacturing defect, design defect, = marketing=20 defect, and breach of warranty.  The jury found for Equistar = on each=20 theory, and apportioned liability 80% to Dresser and 20% to=20 Equistar.  The jury further determined that $3,641,210 would = fairly=20 and reasonably compensate Equistar for the cost of repairing the=20 compressors.  Based on the jury findings and a calculation of = prejudgment interest, the trial court awarded Equistar = $3,510,725. =20 Both sides appealed.

In its=20 first appeal to this court, Equistar attacked the partial summary = judgment=20 on the ground that Dresser had failed to conclusively establish = that a=20 limitation of liability applied to the occurrences forming the = basis of=20 the suit. =20 Because of our resolution of Dresser=3Ds=20 appellate issues, neither we nor the supreme court in its opinion = reached=20 Equistar=3Ds=20 arguments as appellant.  See generally = Equistar=20 II,=20 240 = S.W.3d 864;=20 Equistar I, 123 S.W.3d 584. =20 Equistar now raises the same issues on remand.[4]

<= SPAN=20 style=3D"FONT-SIZE: 13pt; LINE-HEIGHT: 150%; FONT-FAMILY: = Shruti">

In its=20 first appeal, Dresser challenged the final judgment awarding = damages to=20 Equistar on the grounds that (1) Equistar=3Ds claims=20 are all barred by applicable statutes of limitations, (2) the = evidence is=20 legally insufficient to support the jury=3Ds verdict,=20 and (3) the evidence is factually insufficient to support the=20 jury=3Ds=20 verdict.[5] =20 In connection with its limitations arguments, Dresser further = argued that=20 the economic loss rule limited Equistar to recovery under its = warranty=20 theory and that the warranty theory was barred by the applicable = statute=20 of limitations.  We agreed with this argument in regard to = damage to=20 the compressors themselves (and attendant business interruption = and other=20 additional damages); however, we found the economic loss rule = inapplicable=20 to damage to adjacent parts.  Equistar = I, 123 S.W.3d = at=20 586-92.  We further found that the statutes of limitations = were no=20 bar to Equistar=3Ds tort=20 claims and that legally sufficient evidence supported the = jury=3Ds findings=20 thereon.  Id. at 591.  Accordingly, we reversed = the trial=20 court=3Ds judgment=20 and rendered a take‑nothing judgment on Equistar=3Ds claims=20 stemming from damage to the compressors themselves.  = Id. at=20 592.  We further remanded Equistar=3Ds tort=20 claims stemming from damage to property other than the compressors = because=20 there was no evidence in the original trial segregating the amount = of=20 damage to that other property.  Id. at = 591-92.

In its=20 opinion, the supreme court held that Dresser failed to preserve = its=20 economic loss rule argument in the trial court.  = Equistar = II,=20 240 = S.W.3d at 868.=20  However,=20 the supreme court agreed with our holdings that the evidence was = legally=20 sufficient to support the jury=3Ds findings=20 on Equistar=3Ds tort=20 theories and that those claims were not barred by statutes of=20 limitations.  Id. at 868.  Accordingly the = supreme court=20 remanded for consideration of Dresser=3Ds factual=20 sufficiency challenges and Aany=20 additional issues raised by the parties.@ =20 Id. at 868-69.

On remand,=20 Dresser urges that both its limitations and legal sufficiency = arguments=20 are still at issue.  In our original opinion, we disposed of = these=20 arguments as without merit.  Equistar = I, 123 S.W.3d at = 591. =20 In fact, we were required to address these issues (limitations and = legal=20 sufficiency) in our original opinion because they are Arender=20 issues@ = as=20 opposed to Aremand=20 issues.@ =20 See, e.g., Pruitt v. Republic Bankers Life Ins. Co., 491 = S.W.2d=20 109, 112 (Tex. 1973) (A[A]n=20 appellate court should give consideration to all points calling = for a=20 judgment of reversal and rendition before reversing a trial court = judgment=20 and remanding the cause.@). =20 Had we found merit in Dresser=3Ds=20 limitations or legal sufficiency arguments, we would have rendered = judgment favoring Dresser rather than remanding to the trial = court. =20 Additionally, it should be pointed out that in its opinion, the = supreme=20 court treated our original opinion as having disposed of=20 Dresser=3Ds=20 limitations and legal sufficiency claims.  Indeed, the court = stated:=20 Awe agree=20 with the court of appeals=3D = conclusions that (1) legally sufficient evidence supported the = liability=20 findings, [and] (2) Equistar=3Ds tort=20 claims were not barred by limitations.@ =20 Equistar=20 II,=20 240 = S.W.3d at 868.=20  Thus,=20 Dresser=3Ds issues=20 on remand are limited to its attacks on the factual sufficiency of = the=20 evidence.

Partial=20 Summary Judgment

In its=20 appeal, Equistar challenges the trial court=3Ds grant of=20 partial summary judgment limiting the elements of damages on which = Equistar could recover to the costs of repair.  In its motion = for=20 summary judgment, Dresser asserted that the additional damages = sought by=20 Equistar are barred under either (1) a limitation of liability = contained=20 in a 1998 document signed by the parties, (2) a limitation of = liability=20 contained in a Dresser order acknowledgment form sent in response = to an=20 Equistar purchase order form, or (3) some combination of = both.  In=20 its order granting partial summary judgment, the trial court = stated that=20 Asaid=20 motion should be GRANTED as to the limitations on = Plaintiff=3Ds claim(s)=20 for all damages, including consequential, incidental and indirect = damages,=20 other than those plead [sic] and specifically allowed pursuant to = the=20 contract.@ =

The=20 parties signed a document entitled ANegotiated=20 Terms and Conditions@ = in=20 1998.  Dresser maintains that the parties expressed an intent = in this=20 document to merge all of their prior agreements into the agreement = evidenced by that document itself.  Equistar, on the other = hand,=20 insists that the document was not intended to be a contract by = itself but=20 was instead a set of pre-negotiated terms to be included in future = contracts between the parties.

As movant=20 on a traditional summary judgment, Dresser had to establish that = there is=20 no genuine issue of material fact in order to prevail on its = motion. =20 See Tex. R. Civ. P.=20 166a(c); SAS Inst., Inc. v. Breitenfeld, 167 S.W.3d 840, = 841 (Tex.=20 2005) (citing State Farm Fire and Cas. Co. v. Vaughan, 968 = S.W.2d=20 931, 932 (Tex.1998), and Nixon v. Mr. Prop.  Mgmt. = Co., 690=20 S.W.2d 546, 548‑49 (Tex. 1985)).[6] =20 The primary goal in interpreting a contract should be to ascertain = and=20 give effect to the parties=3D = intent as=20 expressed in the contract.  Seagull Energy E & P, Inc. = v.=20 Eland Energy, 207 S.W.3d 342, 345 (Tex. 2006).  Intent = must be=20 gleaned from the contract as a whole, and no single provision = taken alone=20 will be given controlling effect.  See SAS Inst., = Inc., 167=20 S.W.3d at 841  (quoting Coker v. Coker, 650 S.W.2d = 391, 393=20 (Tex. 1983)).  AIf the=20 written instrument is so worded that it can be given a certain or = definite=20 legal meaning or interpretation, then it is not ambiguous and the = court=20 will construe the contract as a matter of law.@ =20 Id. (quoting Coker, 650 S.W.2d at 393).  = However, if=20 the language of the document is susceptible to two or more = reasonable=20 interpretations, an ambiguity exists, and the contract cannot be=20 interpreted as a matter of law solely from its own terms.  = See Am.=20 Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 157 (Tex.=20 2003).

In=20 general, a Amerger=20 clause@ = is a=20 contractual provision mandating that the written terms of the = contract may=20 not be varied by prior agreements because all such agreements have = been=20 merged into the new document.  IKON Office Solutions, Inc. = v.=20 Eifert, 125 S.W.3d 113, 125 n. 6 (Tex. App.CHouston=20 [14th Dist.] 2003, pet. denied).  Such clauses memorialize = the=20 parties=3D = intent to=20 invoke the Amerger=20 doctrine.@ =20 Fish v. Tandy Corp., 948 S.W.2d 886, 899 (Tex. = App.CFort Worth=20 1997, pet. denied).  Under the merger doctrine, prior or=20 contemporaneous agreements between the same parties, concerning = the same=20 subject matter, are absorbed into a subsequent agreement.  = See=20 Texas A & M Univ.‑Kingsville v. Lawson, 127 S.W.3d = 866, 872 (Tex.=20 App.CAustin=20 2004, pet. denied); Fish, 948 S.W.2d at 898; see also = Hubacek v.=20 Ennis State Bank, 159 Tex. 166, 317 S.W.2d 30, 31 (1958) = (explaining=20 merger rule).  The intent of the parties is paramount in = determining=20 whether merger occurs.  Lawson, 127 S.W.3d at 872;=20 Fish, 948 S.W.2d at 898.

As set=20 forth below, we find that the 1998 document is so forward looking = and so=20 ambiguous as to certain terms that Equistar has at least raised a = fact=20 question as to whether the parties intended to merge all their = prior=20 agreements into an agreement evidenced by the document = itself.  To=20 begin with, the document=3Ds title,=20 ANegotiated=20 Terms and Conditions,@ = sounds=20 like exactly what Equistar says it is:  a set of terms to = govern=20 future dealings.  Although the document contains a = boilerplate=20 integration clause, interpreting this clause as merging all = previous=20 agreements presents at least two problems.  First, while the = clause=20 states that no provisions of the agreement, including those = relating to=20 the price or nature of the work to be performed, can be changed = except on=20 Equistar=3Ds written=20 Change Notice form, the document itself contains no provisions = regarding=20 price or the nature of the work.  Second, the very same = integration=20 clause precludes looking at prior agreements to fill in those = blanks:=20 AThe=20 written terms of this Contract constitute the entire agreement = between the=20 parties . . . .@ =20 Thus, Equistar=3Ds=20 insistence that these provisions were simply the result of = negotiations=20 for terms for future contracts (which would include the terms from = the=20 1998 document but also fill in price and nature of performance = terms) is a=20 reasonable interpretation of the document.

While=20 Dresser argues that the language quoted above regarding the = Aentire=20 agreement between the parties@ = means=20 that this document governs all dealings between the parties, the = merger=20 doctrine itself is not so limiting.  Frequently, a contract=20 containing a merger clause is limited to a particular service or = facility,=20 and parties may conceivably have multiple contracts concerning = different=20 subject matter, each with its own merger clause.  See = generally=20 Lawson, 127 S.W.3d at 872 (AUnder the=20 merger doctrine, prior or contemporaneous agreements between the = same=20 parties, concerning the same subject matter, are absorbed into a=20 subsequent agreement.@);=20 Cont=3Dl Cas. Co.=20 v. Fina Oil & Chem. Co., 126=20 S.W.3d 163, 174 (Tex. App.CHouston=20 [1st Dist.] 2003, no pet.) (holding earlier agreement was not = merged into=20 subsequent agreement containing merger clause because the two = agreements=20 pertained to different subject matters).

Additionally,=20 the 1998 document is replete with prospective language and = contains almost=20 no retrospective language.  Phrases such as Ashall=20 be,@ = Aany order=20 accepted,@ = and=20 Ato be=20 delivered or performed@ = are=20 common throughout the document, suggesting that the terms were to = be=20 incorporated in future contracts and were not intended to govern = all prior=20 dealings.  The statement that ACONTRACTOR=20 has had . . . the ability to make inspections,@ = can also=20 be reasonably interpreted as prospective, suggesting that at the = time of=20 contracting, the contractor is already familiar with conditions at = the=20 facility and thus cannot in the future claim ignorance=20 thereof.

Regarding=20 Aperformance=20 of work,@ = the=20 agreement states:  AContractor=20 warrants that its work when performed and services when rendered = will meet=20 all specific requirements, if any, of this agreement, and will be = done in=20 a good and workmanlike manner.@  Not=20 only is this statement prospective in nature, but it also = references the=20 possibility that specific performance requirements may (or may = not) be=20 included in the agreement.  This clause further supports=20 Equistar=3Ds=20 contention that these ATerms and=20 Conditions@ = were=20 negotiated for inclusion in future agreements between the parties=20 governing specific goods and services.

Equally=20 important is what the document does not say.  Other than the = general=20 statements in the merger clause discussed above, the document = includes no=20 reference to any prior work, prior agreements, price terms, or = performance=20 terms.  Dresser contends that Equistar, upon taking over from = Lyondell, wanted to merge all the prior agreements that Lyondell = had=20 entered into.  It is at least debatable whether Equistar = would have=20 done so in such a forward-looking document, omitting any terms of = price or=20 performance and omitting any express mention of the prior=20 agreements.  Consequently, Equistar has raised at least a = fact issue=20 regarding whether the 1998 document expresses an intent to merge = all prior=20 agreements between the parties concerning the Channelview plant=20 impellers.  The trial court therefore erred if it based its = partial=20 summary judgment on Dresser=3Ds=20 contention that the 1998 document constitutes a merger agreement = between=20 the parties.

Dresser=20 additionally contended that the 1998 document represented=20 Equistar=3Ds release=20 of all claims based on Dresser=3Ds prior=20 work.  In order to be entitled to a summary judgment on this=20 assertion, Dresser was required to conclusively demonstrate that = the 1998=20 document constituted an agreement to discharge duties or = obligations=20 Dresser owed to Equistar and that Equistar=3Ds claims=20 relating to the impeller failures were clearly within the subject = matter=20 of the agreement.  See Baty v. ProTech Ins. Agency, 63 = S.W.3d=20 841, 848 (Tex. App.CHouston=20 [14th Dist.] 2001, pet. denied).  In support of its position, = Dresser=20 again relies on the limitation of liability provision, which = states that=20 Dresser Ashall in=20 no event be liable to Equistar . . . for any consequential, = incidental, or=20 indirect damages arising out of this agreement.@ =20 Dresser=3Ds argument=20 fails for the same reasons as its merger doctrine argument. =20 Consequently, there is at least a fact question as to whether the = document=20 evidences an agreement to discharge any of Dresser=3Ds duties=20 or obligations to Equistar, and whether damages to the compressor = would be=20 included in such discharge.  Accordingly, the trial court = erred if it=20 based its partial summary judgment on Dresser=3Ds=20 contention that the 1998 document constitutes a release of=20 Equistar=3Ds=20 claims.

Lastly, as=20 an alternative to its arguments regarding the 1998 document, = Dresser=20 asserted that even if the 1998 document did not serve to limit=20 Equistar=3Ds=20 recoverable damages, a limitation of liability provision in an=20 acknowledgment form limited recoverable damages.[7] =20 Dresser contended that a Uniform Commercial Code Abattle of=20 the forms@ = analysis=20 establishes that the limitation in Dresser=3Ds form=20 became part of the agreement between the parties for work done by = Dresser=20 on Equistar=3Ds=20 compressors.  See generally Tex. Bus. & Com. Code=20 ' = 2.207=20 (governing when additional or different terms in an acceptance = become part=20 of the contract between two parties).  However, regardless of = whether=20 its UCC argument is correct, Dresser failed to conclusively = demonstrate=20 that (1) all of the relevant work done on the compressors was = governed by=20 acknowledgment forms containing a limitation of liability, or (2) = the=20 damages claimed by Equistar were the result of the particular work = for=20 which Dresser produced acknowledgment forms containing a = limitation of=20 liability.  Although Dresser included what appear to be = several order=20 and acknowledgment forms attached to its motion, Dresser did not = provide=20 any other summary judgment evidence connecting these forms to the = work=20 that supposedly caused Equistar=3Ds=20 damages.  These bare forms themselves do not conclusively = establish=20 that they cover the relevant work.  Accordingly, the trial = court=20 erred if it based its partial summary judgment on = Dresser=3Ds=20 Abattle of=20 the forms@ = argument.

The trial=20 court erred in granting a partial summary judgment limiting the = elements=20 of damages.  We therefore sustain Equistar=3Ds first=20 issue.  Because our decision results in the necessity of a = remand, we=20 need not consider the remainder of Equistar=3Ds or any=20 of Dresser=3Ds=20 substantive issues.  These issues encompass no contentions = that=20 either (1) would result in other than a remand or (2) require = resolution=20 for a remand.  Accordingly, we do not reach them in this=20 appeal.

Disposition

Pursuant=20 to Texas Rule of Appellate Procedure 44.1(b), we are not permitted = to=20 order a new trial on remand solely for determination of = unliquidated=20 damages when liability is contested.  Tex. R. App. P. = 44.1(b). =20 Dresser has contested liability at every stage of trial and = appeal. =20 See Estrada v. Dillon, 44 S.W.3d 558, 562 (Tex. = 2001)=20 (explaining that liability is contested in a case for purposes of = applying=20 Rule 44.1(b) if the defendant filed a general denial in the trial = court);=20 see also Turner, Collie & Braden, Inc. v. Brookhollow, = Inc.,=20 642 S.W.2d 160, 166 (Tex. 1982) (stating party in double appeal = contested=20 liability issue by challenging the sufficiency of the evidence in = its=20 appellant=3Ds=20 brief).  Equistar urges us to suspend application of Rule = 44.1 in=20 order Ato=20 expedite a decision or for other good cause@ = as=20 permitted under Rule 2.  Tex. R. App. P. 2.  We fail to = see any=20 reason for suspending the clear dictate of Rule 44.1 here that = would not=20 apply in many other cases in which a trial court decision on = damages must=20 be remanded.[8] =20 We therefore decline to do so.

Furthermore,=20 because the issues of liability, repair damages, and additional = damages=20 are inextricably intertwined in this case, we feel it incumbent to = remand=20 all questions of both liability and damages.  See Tex. = R. App.=20 P. 44.1 (permitting remand of part of a judgment only if that part = is=20 separable without unfairness to the parties); Ford Motor Co. v. = Miles, 967 S.W.2d 377, 390 (Tex. 1998) (Gonzales, J., = concurring)=20 (stating that issues of negligence and gross negligence were so=20 inextricably intertwined that new trial could not be fairly had = upon sole=20 issue of gross negligence for purposes of punitive damages); = Green Tree=20 Fin. Corp. v. Garcia, 988 S.W.2d 776, 785 (Tex. = App.CSan=20 Antonio 1999, no pet.) (remanding for a Acomplete=20 new trial@ = after=20 overruling objection to actual damages award but sustaining = challenge to=20 award of punitive damages).  Lastly, Equistar has filed a = motion in=20 this appeal to sever and dismiss its warranty claim with = prejudice.[9] =20 We grant this motion, sever and dismiss the warranty claim with = prejudice,=20 and remand all remaining liability and damages issues for a new=20 trial.

We reverse=20 the trial court=3Ds judgment=20 and remand for further proceedings in accordance with this=20 opinion.

 

 

/s/     =20 Adele Hedges

Chief = Justice

 

 

 

 

Judgment=20 rendered and Memorandum Opinion on Remand filed April 1, = 2008.

Panel=20 consists of Chief Justice Hedges and Justices Anderson and=20 Boyce.


[1]  For a more detailed description = of the=20 history of the compressors, the 1999 failures, and the efforts to = repair,=20 please see our prior opinion and that of the Texas Supreme = Court. =20 Equistar II,=20 240 S.W.3d at 865-66; = Equistar=20 I, 123 S.W.3d 585-86.

[2]  As will be discussed in greater = detail=20 below, Dresser=3Ds primary argument was that the damages = were=20 governed by a limitation of liability contained in an agreement = signed by=20 the parties in 1998.  In regard to this document, Equistar = contended=20 that it was not intended to affect prior transactions but was = instead a=20 set of negotiated terms to govern only future contracts between = the=20 parties.  In its motion for summary judgment, Dresser = additionally=20 argued that the exchange of purchase order and order = acknowledgment forms=20 between the parties imposed a limitation of liability applicable = to the=20 damages alleged in this case.  In relation to this = contention,=20 Equistar argued that Dresser failed to conclusively establish that = the=20 relevant forms carried a limitation of liability clause.  = Equistar=20 did not file its own motion for summary judgment seeking = interpretation of=20 any of these documents as a matter of law.

[3]  The limitation of liability = clause in the=20 1998 document read as follows:

 

A.  CONTRACTOR shall in no event be = liable to=20 EQUISTAR or any successor for any consequential, incidental, or = indirect=20 damages arising out of this Agreement or any breach thereof, = including but=20 not limited to damages resulting from loss of use, profits, = revenue,=20 interest, or goodwill; work stoppage; impairment of other goods; = shutdown=20 or non-operation; increased expenses of operation; cost of = purchase of=20 replacement power; or claims of EQUISTAR or customers of EQUISTAR = for=20 service interruption whether or not such loss or damage is based = on=20 contract, indemnity, tort, strict liability or = otherwise.

 

B.  The remedies of EQUISTAR set = forth herein=20 are exclusive.  Excluding CONTRACTOR=3Ds indemnity obligation for AInjury, Death or Damage@ herein, the total liability of = CONTRACTOR with=20 respect to the performance or breach of this Agreement, whether = based on=20 contract, indemnity, tort, strict liability or otherwise, shall = not exceed=20 the contract price of such services or the part upon which such = liability=20 is based.

[4]  Equistar additionally argues that = the trial=20 court erred in excluding its offer of proof regarding additional = damages=20 and in refusing to submit the additional damages in the jury = charge. =20 However, the trial court clearly made these decisions based on its = holding=20 on the partial summary judgment.  Accordingly, these = additional=20 arguments do not raise any distinct issues for=20 determination.

[5]  Dresser additionally argued in = its first=20 appeal that Equistar=3Ds claims were all barred by a statute of = repose.  The supreme court held that Dresser waived its = statute of=20 repose defense.  Equistar II, 240 S.W.3d at 868.

[6]  Dresser additionally suggests on = remand=20 that the trial court also granted a Ano evidence@ ground in its motion for summary = judgment. =20 As evidence of this, Dresser cites only the court=3Ds order, wherein the court stated = ADefendants=3D Motion for Summary Judgment and = Alternative=20 No-Evidence Motion for Summary Judgment should be = GRANTED.@  However, it is clear that the = trial court=20 did not actually grant the no evidence portion of the motion but = was only=20 stating the title of the motion.  As mentioned in the text = above, the=20 order itself states that Asaid motion should be GRANTED as to the=20 limitations on Plaintiff=3Ds claims for . . . damages;@ the order does not state that the = motion is=20 granted on the no-evidence ground.

Furthermore, the no-evidence ground that = Dresser=20 claims was granted postulated that there was no evidence to prove=20 causation of any damages for certain causes of action.  If = granted,=20 this ground would have eliminated the specified causes of action, = not=20 simply limited the damages recoverable for those claims. =20 Accordingly, it is clear that the trial court did not base its = grant of=20 partial summary judgment on Dresser=3Ds no-evidence ground; thus, the = no-evidence ground=20 cannot be used to support the summary judgment on = appeal.

[7]  The limitation of liability = clause in=20 Dresser=3Ds acknowledgment forms were virtually = identical to=20 the limitation of liability clause contained in the 1998 = document. =20 The forms attached to Dresser=3Ds motion for summary judgment were from = the=20 1994-95 time period.

[8]  In support of its arguments, = Equistar cites=20 Browning Oil Co. v. Luecke, 38 S.W.3d 625 (Tex. = App.CAustin 2000, pet. denied), in which the = court=20 relied upon Rule 2 in remanding for a new trial solely on = damages. =20 Browning is readily distinguishable from the present = case.  In=20 Browning, the original trial was bifurcated such that = liability=20 issues were tried to the bench and not the jury.  Id. = at 647=20 n.31.  The court therefore determined that remanding = liability issues=20 for a new trial in addition to damages issues would serve no=20 purpose.  Id.  The trial in the present case was = not so=20 bifurcated.  Because Browning is distinguishable in = this=20 manner, we need not discuss whether we agree with its outcome or=20 reasoning.

[9]  Dresser opposes the motion, = suggesting that=20 Equistar may be attempting to circumvent a holding by this court = in its=20 original opinion.  Equistar denies any strategic intentions = but=20 insists instead that it merely wishes to simplify matters on = appeal and on=20 remand.  Dresser specifically accuses Equistar of attempting = to=20 nullify our holding in our original opinion that the relevant = product for=20 warranty purposes was the compressor, citing Equistar I, = 123 S.W.3d=20 at 587-90.  Dresser further postulates that the supreme court = left=20 this holding intact by not addressing the warranty claim.  = Dresser is=20 incorrect.  The supreme court reversed our prior judgment, = which was=20 based on an opinion holding that the statute of limitations had = run on=20 Equistar=3Ds warranty claim.  Equistar = II, 240=20 S.W.3d at 868-69; Equistar I, 123 S.W.3d at 587-90.  = Our=20 holding on the statute of limitations as it relates to the = warranty claim=20 was not left intact given the supreme court=3Ds reversal of our prior=20 = judgment.

------=_NextPart_000_0024_01C89B66.62FBD5A0 Content-Type: image/gif Content-Transfer-Encoding: base64 Content-Location: http://www.14thcoa.courts.state.tx.us/resource/opinions/images/icoEMail.gif R0lGODlhFAAPAKIAAAAAgIAAAP///8DAwICAgAAAAAAAAAAAACwAAAAAFAAPAAADNCi63P4wykaq vba4Mrr/ndaITxAM5JI2JrotQCwr7jjVDCnPAq7eKwEHRAwWjshkcsJsShIAOw== ------=_NextPart_000_0024_01C89B66.62FBD5A0 Content-Type: image/gif Content-Transfer-Encoding: base64 Content-Location: http://www.14thcoa.courts.state.tx.us/resource/images/icons/close.gif R0lGODlhFwAPAMQAAMDAwP//nP/OnPf39+/v5+/e3ufn5+fWxt7e3s7OY6+vMpycAISEhISEAFlN MkpCQkpCOTEhAAAAhAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAACH5BAEA AAAALAAAAAAXAA8AQAVxICCOJMCU6KgMQesGArwYUTouCTMAgzQMBkijYRMtYkgYTLCoFQGLqA74 eIoU0aw2ijBUbYuXEsl0Fh3otNqKYgTZt0Rut/PCF25DQUKQHAxBRCkKIj88IwIJCwcIXyhhLTFj iU1FYZJJSJWWW51mIiEAOw== ------=_NextPart_000_0024_01C89B66.62FBD5A0 Content-Type: text/css; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable Content-Location: http://www.14thcoa.courts.state.tx.us/resource/includes/oca.css .TitleBlue { FONT-WEIGHT: bold; FONT-SIZE: 14pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, = sans-serif; TEXT-ALIGN: left } .TitleBlueCenter { FONT-WEIGHT: bold; FONT-SIZE: 14pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, = sans-serif; TEXT-ALIGN: center } .TitleMaroon { FONT-WEIGHT: bold; FONT-SIZE: 14pt; COLOR: maroon; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-ALIGN: left } .TitleWhite { FONT-WEIGHT: bold; FONT-SIZE: 14pt; COLOR: white; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-ALIGN: left } .TitleBlack { FONT-WEIGHT: bold; FONT-SIZE: 14pt; COLOR: black; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-ALIGN: left } .NavWhite { FONT-WEIGHT: bold; FONT-SIZE: 10pt; COLOR: white; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-DECORATION: none } A.NavWhite:hover { TEXT-DECORATION: underline } .BreadCrumbs { FONT-WEIGHT: bold; FONT-SIZE: 10pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, = sans-serif } A.BreadCrumbs { FONT-WEIGHT: bold; FONT-SIZE: 10pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, = sans-serif; TEXT-DECORATION: underline } A.BreadCrumbs:hover { COLOR: blue } .TextNormal { FONT-WEIGHT: normal; FONT-SIZE: 10pt; COLOR: black; LINE-HEIGHT: = normal; FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, = sans-serif } .TextJustify { FONT-WEIGHT: normal; FONT-SIZE: 10pt; VERTICAL-ALIGN: top; COLOR: = black; FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, = sans-serif; TEXT-ALIGN: justify } A.TextNormal { FONT-WEIGHT: normal; FONT-SIZE: 10pt; COLOR: #000099; FONT-FAMILY: = Tahoma, Arial, Helvetica, sans-serif; TEXT-DECORATION: underline } A.TextNormal:hover { FONT-WEIGHT: bold } .TextSmall { FONT-WEIGHT: normal; FONT-SIZE: 10pt; VERTICAL-ALIGN: top; FONT-FAMILY: = Arial Narrow } .TextSmallBlue { FONT-WEIGHT: normal; FONT-SIZE: 10pt; VERTICAL-ALIGN: top; COLOR: = #000099; FONT-FAMILY: Arial Narrow } .TextSmallJust { FONT-WEIGHT: normal; FONT-SIZE: 10pt; VERTICAL-ALIGN: top; FONT-FAMILY: = Arial Narrow; TEXT-ALIGN: justify } A.TextSmall { COLOR: #000099; TEXT-DECORATION: underline } A.TextSmallJust { COLOR: #000099; TEXT-DECORATION: underline } A.TextSmall:hover { FONT-WEIGHT: bold } A.TextSmallJust:hover { FONT-WEIGHT: bold } .TextSmallWhite { FONT-WEIGHT: normal; FONT-SIZE: 10pt; VERTICAL-ALIGN: top; COLOR: = white; FONT-FAMILY: Arial Narrow } .TextWhite { FONT-WEIGHT: normal; FONT-SIZE: 10pt; COLOR: white; FONT-FAMILY: = Tahoma, Arial, Helvetica, sans-serif } A.TextWhite { =09 } A.TextWhite:hover { FONT-WEIGHT: bold } .LinksSite { FONT-WEIGHT: normal; FONT-SIZE: 9pt; COLOR: #000099; FONT-FAMILY: Arial = Narrow; TEXT-DECORATION: none } A.LinksSite { =09 } A.LinksSite:hover { FONT-WEIGHT: bold } .TextNotify { FONT-WEIGHT: normal; FONT-SIZE: 9pt; COLOR: #000099; FONT-FAMILY: Arial = Narrow } .SiteMaster { FONT-WEIGHT: bold; FONT-SIZE: 14pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, = sans-serif; TEXT-DECORATION: underline } A.SiteMaster { LINE-HEIGHT: normal; TEXT-DECORATION: underline } A.SiteMaster:hover { COLOR: blue } .SiteMenu { FONT-WEIGHT: bold; FONT-SIZE: 10pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-DECORATION: none } A.SiteMenu { FONT-WEIGHT: bold; TEXT-DECORATION: none } A.SiteMenu:hover { COLOR: blue } .SiteBase { FONT-WEIGHT: bold; FONT-SIZE: 9pt; COLOR: #000099; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-DECORATION: none } A.SiteBase { FONT-WEIGHT: bold; COLOR: maroon; FONT-FAMILY: Tahoma, Arial, = Helvetica, sans-serif; TEXT-DECORATION: none } A.SiteBase:hover { COLOR: blue } .ErrorNormal { FONT-WEIGHT: normal; FONT-SIZE: 10pt; VERTICAL-ALIGN: top; COLOR: red; = FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif } .ErrorSmall { FONT-WEIGHT: normal; FONT-SIZE: 10pt; VERTICAL-ALIGN: top; COLOR: red; = FONT-FAMILY: Arial Narrow } .SystemMSG { FONT-WEIGHT: bold; FONT-SIZE: 10pt; VERTICAL-ALIGN: top; COLOR: white; = FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; BACKGROUND-COLOR: = navy } .SystemErrorMSG { FONT-WEIGHT: bold; FONT-SIZE: 10pt; VERTICAL-ALIGN: top; COLOR: white; = FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; BACKGROUND-COLOR: red } .buttonUnused { PADDING-RIGHT: 1pt; PADDING-LEFT: 1pt; FONT-WEIGHT: normal; FONT-SIZE: = 9pt; PADDING-BOTTOM: 1pt; MARGIN: 1pt; COLOR: #fff5d7; PADDING-TOP: 1pt; = BACKGROUND-COLOR: #576a9d; font-face: Tahoma, Arial, Helvetica, = sans-serif } .buttonTanUnused { PADDING-RIGHT: 1pt; PADDING-LEFT: 1pt; FONT-WEIGHT: normal; FONT-SIZE: = 9pt; PADDING-BOTTOM: 1pt; MARGIN: 1pt; COLOR: #576a9d; PADDING-TOP: 1pt; = BACKGROUND-COLOR: #fff5d7; font-face: Tahoma, Arial, Helvetica, = sans-serif } .TextLargeBlue { FONT-WEIGHT: bold; FONT-SIZE: 12pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, = sans-serif; TEXT-ALIGN: left } .DocketHeaderTitle { FONT-WEIGHT: bold; FONT-SIZE: 14pt; COLOR: black; LINE-HEIGHT: normal; = FONT-FAMILY: Tahoma, Arial, ' Helvetica', sans-serif; TEXT-ALIGN: center } .TextLargeBlack { FONT-WEIGHT: bold; FONT-SIZE: 11pt; COLOR: black; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-ALIGN: left } .TextLargeBlackcenter { FONT-WEIGHT: bold; FONT-SIZE: 11pt; COLOR: black; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-ALIGN: center } .TextBlue { FONT-WEIGHT: normal; FONT-SIZE: 10pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif } A.TextBlue { FONT-WEIGHT: normal; FONT-SIZE: 10pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-DECORATION: none } .TextRed { FONT-WEIGHT: normal; FONT-SIZE: 12pt; COLOR: red; LINE-HEIGHT: normal; = FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif } .TextHidenGray { FONT-SIZE: 0pt; COLOR: #ebebe1; LINE-HEIGHT: normal; FONT-FAMILY: = Tahoma, Arial, Helvetica, sans-serif; TEXT-ALIGN: left } .Time { FONT-WEIGHT: bold; FONT-SIZE: 10px; COLOR: red; LINE-HEIGHT: 4em; = FONT-FAMILY: Arial, Helvetica, sans-serif; TEXT-ALIGN: center } ------=_NextPart_000_0024_01C89B66.62FBD5A0--