                                          NO. 07-05-0156-CV

                                   IN THE COURT OF APPEALS

                           FOR THE SEVENTH DISTRICT OF TEXAS

                                             AT AMARILLO

                                                 PANEL C

                                        JULY 17, 2007
                               ______________________________

                                            PRAXAIR, INC.,

                                                                            Appellant

                                                     v.

                                  STERLING CHEMICALS, INC.,

                                                          Appellee
                            _________________________________

             FROM THE 405TH DISTRICT COURT OF GALVESTON COUNTY;

                   NO. 00-CV-0060; HON. WAYNE J. MALIA, PRESIDING
                          _______________________________

                                  On Motion For Rehearing
                              _______________________________

Before QUINN, C.J., and REAVIS and HANCOCK, JJ.1

        Pending before us is the motion for rehearing of appellee Sterling Chemicals, Inc.

(Sterling) in which it asks us to address an alternative basis upon which it seeks to have

us affirm the judgment of the trial court. We overrule the motion.

        The basis alluded to rests upon the jury’s finding that Sterling and Praxair, Inc.

(Praxair), (as opposed to Praxair Hydrogen Supply, Inc. (PHS)), orally agreed that Praxair


        1
          Don Reavis, Justice (Ret.), Seventh Court of Appeals, sitting by assignm ent, did not participate in
this decision.
“would design or construct the piping in the Texas City plant in accordance with [Praxair’s]

current design practices and facilities to comply with U.S. Codes, the latest ASME Unfired

Pressure Vessel Code, and the ANSI B31.3 for refinery piping.” Yet, the only written

agreement between Praxair and Sterling consisted of the written guaranty alluded to in our

original opinion. Moreover, in that document the following clause appeared:

       This Guaranty contains the entire agreement of the parties with respect to
       the subject matter hereof, and supersedes any and all prior agreements,
       whether written or oral, that may exist between the parties with respect
       thereto. There are no promises, representations or warranties affecting this
       Agreement that are not contained herein.

Clauses such as this prohibit the terms of written contracts from being varied by prior oral

agreements which are absorbed or merged into the subsequent agreement. Hubacek v.

Ennis State Bank, 159 Tex. 166, 317 S.W.2d 30, 32 (1958). Because the purported oral

agreement to which Sterling alludes arose before the guaranty was executed, the

aforementioned clause vitiated it.

       Sterling’s motion for rehearing is overruled.



                                                 Per Curiam




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