Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.

On December 17, 2003, appellant, Zurich American Insurance Company, filed a Motion to Dismiss Appeal pursuant to Tex. R. App. P. 42.1(a) ⁽¹⁾ based on an agreement resolving the underlying dispute. The motion includes a certificate of service that counsel for appellee was served a copy of the motion by first class mail on December 3, 2003. No response to the motion has been received.

Accordingly, without passing on the merits of the case, appellant's Motion to Dismiss is granted and the appeal is hereby dismissed. Rule 42.1(a).

All costs are assessed to appellant. Having dismissed the appeal at appellant's request, no motion for rehearing will be entertained, and our mandate will issue forthwith.

Phil Johnson

Chief Justice

1. A rule of appellate procedure will hereafter be referred to as "Rule ____."

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