IN THE

TENTH COURT OF APPEALS

No. 10-02-126-CV

     DONALD A. BALL D/B/A KOVAK & CO.,

                                                                              Appellant

     v.

     DENNIS AVERITT D/B/A SPECTRUM,

                                                                              Appellee

From the 361st District Court

Brazos County, Texas

Trial Court # 50,795-361

MEMORANDUM OPINION

      Donald A. Ball dba Kovak and Co. filed suit against Dennis Averitt dba Spectrum alleging that Averitt had breached a written lease agreement. The court refused to find a written contract but found that Averitt had breached an oral lease agreement. The court rendered judgment in Ball’s favor. Ball appealed the court’s adverse finding on the existence of a written contract.

      The parties have now filed a joint motion to dismiss the appeal. They state that they have settled their dispute and ask that costs be taxed against the party incurring same. Rule of Appellate Procedure 42.1(a)(1) provides:

(a) The appellate court may dispose of an appeal as follows:

(1) On Motion of Appellant. In accordance with a motion of appellant, the court may dismiss the appeal or affirm the appealed judgment or order unless such disposition would prevent a party from seeking relief to which it would otherwise be entitled.

Tex. R. App. P. 42.1(a)(1).

      The parties’ joint motion complies with the requirements of the appellate rules. Accordingly, we dismiss the appeal with costs to be taxed against the party incurring same. See id. 42.1(d).

                                                                   PER CURIAM

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Appeal dismissed

Opinion delivered and filed May 28, 2003

[CV06]