in Re Seascape Owners Association, Inc., and Home Depot USA, Inc. D/B/A the Home Depot ( 2017 )

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,
1
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.
2
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.
3