Apache Corp. v. Moore , 1994 Tex. App. LEXIS 2584 ( 1994 )

ON MOTION FOR REHEARING

By its motion for rehearing, Apache alleges that our original opinion contained numerous factual inaccuracies and mischaracteriza-tions of the evidence. While we remain convinced that our original disposition of Apache’s appeal is correct, we concede, in regard to its factual inaccuracy claim, that our recording, in paragraph eleven of the opinion, of events in June and the following February, showed, by typographical mischance, the year 1992 for the June events and the year 1993 for the February events, whereas the correct years were 1982 and 1983, respectively. We, therefore, readily amend the eleventh paragraph to reflect that the June events were in 1982 and the February events were in 1983.

Upon analysis, Apache’s evidentiary complaints are centered on what it characterizes in its motion as this Court’s findings made from the evidence. It suffices to state that the perceived findings are merely recitations of the facts culled from a voluminous evidential record, marshalled in response to Apache’s complaints of insufficient evidence, and determined to be sufficient bases for the jury’s findings of fact. Consequently, the varying interpretations of the evidence need not be again addressed; but, in this connection, we observe that Apache’s associated complaints that we erred in our application of the law to the facts are virtually the same complaints made on original submission, and we deem they were given full attention in our original opinion.

Parenthetically, we note that since the writing of our original opinion, it has come to our attention that the judgments rendered in Heil-Quaker Corp. v. Mischer Corp., 863 S.W.2d 210 (Tex.App.— Houston [14th Dist.] 1993), cited, with a “no writ” history, in marginal note 10 of our opinion, and in Borden Inc. v. Rios, 850 S.W.2d 821 (Tex.App.—Corpus Christi 1993), cited, with a “no writ” history, late in our opinion during the address of Apache’s third-point challenge to the constitutionality of the exemplary damage award, have been set aside pursuant to settlement agreements. Because the judgments were set aside “without reference to the merits,” Mischer Corp. v. Heil-Quaker Corp., 877 S.W.2d 300, (Tex.1994); Borden, Inc. v. Rios, 859 S.W.2d 70 (Tex.1993), their stature as stare decisis is equivalent to a writ dismissed case, and their opinions remain valid support for the propositions for which they were cited in the original opinion. Houston Cable v. Imvood West Civic Ass’n, 860 S.W.2d 72, 73 (Tex.1993).

Aside from these corrections, Apache’s motion for rehearing is overruled.