Opinion issued April 25, 2017




                                        In The

                                Court of Appeals
                                       For The

                            First District of Texas
                             ————————————
                                NO. 01-17-00035-CV
                             ———————————
    IN RE SEASCAPE OWNERS ASSOCIATION, INC., AND HOME DEPOT
              USA, INC. D/B/A THE HOME DEPOT, Relators



             Original Proceeding on Petition for Writ of Mandamus


                           MEMORANDUM OPINION
       Relators, Seascape Owners Association, Inc. (“Seascape”) and Home Depot

USA, Inc. d/b/a The Home Depot (“Home Depot”), filed a petition for writ of

mandamus seeking to compel the respondent trial judge to vacate the October 10,

2016 order granting the plaintiffs’ motion for new trial.1 This Court’s January 19,


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       The underlying case is Julie Dow, Individually, And as Executrix of the Estate of
       David Holden Gasser, Deceased; Karen Ragland, Heir at Law of the Estate of
       David Holden Gasser, Deceased; and Virginia Wonderly, Heir at Law of the Estate
2017 Order, among other things, requested a response to the petition by the real

parties in interest, which was filed by them on March 22, 2017.

      On March 3, 2017, relator Home Depot had filed a letter with this Court

stating that it is no longer a party to this mandamus petition because it was not

seeking any relief from this Court, which we construe as a motion to dismiss. See

TEX. R. APP. P. 42.1(a)(1). While there was no certificate of conference with Home

Depot’s motion, it indicated that the motion was served on all counsel of record, and

while it has been on file with this Court for more than 10 days, no party has opposed

the motion. See id. 10.1(a)(5), 10.3(a)(2).

      On April 12, 2017, relator Seascape filed an “Agreed Motion to Dismiss

Because of Settlement,” noting that Home Depot already withdrew, and stating that

Seascape and the real parties in interest have settled all issues. Seascape attached a

certificate of conference stating that counsel for the real parties in interest agrees with

this motion. See TEX. R. APP. P. 10.1(a)(5), 10.3(a)(2). Thus, Seascape requests

dismissal of this mandamus petition and further requests that each party bear its own

costs. See id. 42.1(a)(1), (d). No opinion has issued. See id. 42.1(c).




      of David Holden Gasser, Deceased v. Home Depot USA, Inc. d/b/a The Home
      Depot, et al., Cause No. 13-CV-0895, pending in the 122nd District Court of
      Galveston County, Texas, the Honorable John Ellisor presiding.
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      Accordingly, we grant the relators’ motions to dismiss the petition for writ

of mandamus as moot, with each party to bear its own costs. See TEX. R. APP. P.

42.1(a)(1), (d), 43.2(f).

                                 PER CURIAM
Panel consists of Justices Jennings, Higley, and Massengale.




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