                                   NO. 07-05-0340-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                  FEBRUARY 10, 2006

                         ______________________________

                             KERWIN GIBBS, APPELLANT

                                            V.

                 ALLSUP’S CONVENIENCE STORES, INC. AND
                 FEDERATED MUTUAL INSURANCE COMPANY,
                 FEDERATED INSURANCE AN ASSUMED NAME
               OF FEDERATED MUTUAL INSURANCE COMPANY
             AND/OR FEDERATED SERVICES INSURANCE COMPANY
                     AND DAWN WILLEFORD, APPELLEES
                    _________________________________

        FROM THE COUNTY COURT AT LAW NO. 3 OF LUBBOCK COUNTY;

            NO. 2005-597,010; HONORABLE PAULA LANEHART, JUDGE
                       _______________________________


Before REAVIS and CAMPBELL and HANCOCK, JJ.


                            ON MOTION FOR REHEARING


      By opinion dated December 16, 2005, this court dismissed appellant, Kerwin Gibbs’

appeal for want of prosecution pursuant to Rule 38.8(a)(1) and 42.3(b), (c) of the Texas

Rules of Appellate procedure. By motion for rehearing, appellant contends all matters in

controversy were settled between the parties prior to this court’s order. The pleadings and
the motion for dismissal filed with the petition for rehearing confirm this contention.

Accordingly, the motion for rehearing is granted and the case is reinstated.


      Appellant has filed before this court a motion to dismiss the appeal, citing settlement

of all matters in controversy. Appellee has confirmed the settlement by a responsive

pleading. From the record it is clear that appellant does not desire to pursue the appeal.


      Without passing on the merits of the appeal, we grant the motion and dismiss the

appeal. TEX . R. APP . P. 42.1(a). Pursuant to the motion, costs are to be assessed against

the party incurring them. Having dismissed the appeal by agreement of the parties, no

motion for rehearing will be entertained and our mandate will issue forthwith.




                                                 Mackey K. Hancock
                                                     Justice




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