NO. 07-09-0088-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

OCTOBER 1, 2009

______________________________

EXAMONE WORLDWIDE, INC., THE NORTHWESTERN MUTUAL

LIFE INSURANCE COMPANY, KELLY SCHAEFER, PAMELA LAMBERT

AND QUEST DIAGNOSTICS CLINICAL LABORATORIES, INC., APPELLANTS

V.

VON ALAN VENHUIZEN AND SUSAN VENHUIZEN, APPELLEES

                                    _________________________________

FROM THE 99TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2008-543,155; HONORABLE WILLIAM SOWDER, JUDGE

_______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

ON AGREED MOTION TO DISMISS APPEAL

          Appellants, Examone Worldwide, Inc., Kelly Schaefer, Paula Lambert, and Quest Diagnostics Clinical Laboratories, Inc., perfected an interlocutory appeal from the trial court’s denial of appellants’ motion to dismiss and motion for costs. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(9) (Vernon 2008). Appellants and appellees, Von Alan Venhuizen and Susan Vanhuizen, have filed an agreed motion to dismiss this appeal on the basis that the parties have reached a settlement agreement. This agreed motion requests this Court to dismiss the appeal. Dismissal of the appeal is authorized on motion of appellant by Rule 42.1(a)(1) of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 42.1(a)(1). Thus, to effectuate the agreement of the parties as articulated in their agreed motion to dismiss, this Court will construe that portion of the motion that requests dismissal to be appellants’ request for such relief and we will grant the relief requested. Finding the motion, as construed, to comply with Rule 42.1(a)(1) of the Texas Rules of Appellate Procedure, we dismiss the appeal.

          Further, the parties have requested that costs of the appeal be taxed to the party incurring the same. As the agreed motion complies with the requisites of Rule 6.6 of the Texas Rules of Appellate Procedure, we will tax costs of this appeal against the party that incurred those costs. See Tex. R. App. P. 42.1(d), 6.6.

          Having disposed of this appeal at the parties’ request, we will not entertain a motion for rehearing and our mandate shall issue forthwith.

                                                                                      Per Curium

did not provide us with a complete reporter's record of all evidence received by the trial court below, she denied us with the tools necessary to perform our duty. Moreover, authority requires us to presume that the missing record excerpts support the jury's determination. Brown v. McGuyer Homebuilders, Inc., 58 S.W.3d 172, 175 (Tex. App.-Houston [14^th Dist.] 2001, pet. denied). Thus, we overrule this issue as well.

Having overruled each issue, we affirm the judgment of the trial court.

Brian Quinn

Chief Justice