Before BOYD, C.J., and QUINN and JOHNSON, JJ.

On January 28, 2002, the appellant filed a Motion to Dismiss Appeal moving this court to withdraw appellant's Notice of Appeal and dismiss the appeal.

Without passing on the merits of the case, the appellant's Motion to Dismiss Appeal is granted and the appeal is hereby dismissed. Tex. R. App. P. 42.1(a)(1). All costs are assessed against the party incurring the same.

Phil Johnson

Justice

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ithout prejudice to the refiling of a second motion.

Counsel for real party in interest in the underlying action, entitled Lilith Brainard, Sally Brainard Wicker, E. Swasey F. Brainard, II, Amy Brainard, Berklee Brainard Clements, Sena Brainard, and the Estate of Edward H. Brainard, II, v. Premier Well Service, Inc., cause number 31,677, 31^st Judicial District Court, Gray County, is requested to file a response to the petition for writ of mandamus pursuant to Rule 52.4 of the Texas Rules of Appellate Procedure on or before October 1, 2001.

It is so ordered.

Per Curiam

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