NO. 07-10-0046-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL C FEBRUARY 17, 2010 ______________________________

ROBERT PATRICK WHITEAKER AND ROBERT WHITEAKER RANCHES, INC., APPELLANTS V. DOUG LATHEM, APPELLEE _________________________________ FROM THE 69TH DISTRICT COURT OF HARTLEY COUNTY; NO.4371-H; HONORABLE RON ENNS, JUDGE _______________________________ Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

Pending before this Court is Appellants' Motion to Dismiss Appeal Without Prejudice in which they represent that the issues presented in this appeal have been rendered moot by this Court's Order on Petition for Writ of Mandamus and Judgment rendered in cause number 07-10-00001-CV on February 4, 2010. Without passing on the merits of the case, the motion to dismiss is granted and the appeal is dismissed without prejudice. Tex. R. App. P. 42.1(a)(1). Having dismissed the appeal at Appellants= request, no motion for rehearing will be entertained, and our mandate will issue forthwith.

Patrick A. Pirtle Justice