COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 2-08-174-CV

HUSSAIN ABDULWAHAB, INDIVIDUALLY APPELLANT AND D/B/A FURNITURE GALAXY AND BAZAAR V. SAM'S REAL ESTATE BUSINESS TRUST APPELLEE ---------- FROM THE 153 rd DISTRICT COURT OF TARRANT COUNTY ------------ MEMORANDUM OPINION 1 AND JUDGMENT ------------ Appellant timely filed a motion for new trial and a notice of appeal from the trial court’s January 28, 2008 “Final Judgment.” The trial court subsequently granted Appellant’s motion for new trial on April 24, 2008, while it still had plenary jurisdiction over the case. See T EX. R. C IV. P. 329b(e).

… See T EX. R. A PP. P. 47.4.

On April 30, 2008, we informed the parties that it appeared the trial court’s granting of the motion for new trial rendered this appeal moot and that the appeal would be dismissed as moot unless, on or before May 16, 2008, any party desiring to continue the appeal filed a response showing grounds for continuing the appeal. Appellant responded in a letter filed with this court on May 5, 2008, indicating that he desired withdrawal of his notice of appeal.2 Appellant filed this letter with the trial court and copied this court, without a motion. See T EX. R. A PP. P. 42.1(a).

Therefore, on this court’s own motion, we dismiss the appeal as moot.

See T EX. R. A PP. P. 42.3(a), 43.2(f).

PER CURIAM PANEL D: MCCOY, J.; CAYCE, C.J.; and LIVINGSTON, J.

DELIVERED: May 22, 2008

… On May 6, 2008 we determined that our April 30, 2008 letter was incorrect and we informed the parties that this court might lack jurisdiction over the appeal because the motion for new trial was due February 27, 2008, but was not date-stamped as filed until February 28, 2008. The court has considered Appellant’s May 12, 2008 response to our jurisdiction inquiry, and we find that this court has jurisdiction over Appellant’s appeal.