Opinion issued March 4, 2014

In The Court of Appeals For The First District of Texas ———————————— NO. 01-11-01032-CV ——————————— STEWART & STEVENSON, LLC, Appellant V. BRADY FORET, Appellee

On Appeal from the 80th District Court Harris County, Texas Trial Court Case No. 2009-80709

MEMORANDUM OPINION Appellant, Stewart & Stevenson, LLC, has filed a motion to dismiss the appeal, informing us that the parties have reached a settlement agreement. See TEX. R. APP. P. 42.1(a)(1). Appellant asserts that, “[i]n their settlement, the parties agreed ‘to the entry of a Final Judgment with all claims asserted against [Stewart & Stevenson, LLC] being dismissed with prejudice, with all taxable court costs to be borne by the party incurring same.’” To effectuate their agreement, appellant requests that we “set aside the trial court’s judgment without regard to the merits and remand the case to the trial court for rendition of judgment in accordance with the agreement.” See id. 42.1(a)(2)(B).

Appellant further asserts that it attempted to confer with appellee regarding its motion, but cannot state that no party opposes the motion. See TEX. R. APP. P. 10.1(a). Ten days have passed, however, and appellee has not filed a response in opposition. See id. 10.1(b) (providing that court may determine motion before response is filed), 10.3(a) (providing, in pertinent part, that court should not hear or determine motion until ten days after motion is filed, unless motion states that parties have conferred and no party opposes motion).

Accordingly, we grant the motion, set aside the trial court’s judgment without regard to the merits, remand this case to the trial court for rendition of judgment in accordance with the parties’ agreement, and dismiss the appeal. See TEX. R. APP. P. 42.1(a)(2)(B). Appellant does not request that this Court’s opinion, issued August 15, 2013, be withdrawn. See id. 42.1(c). We vacate our judgment of August 15, 2013 and issue a new judgment in its stead.

Pursuant to the parties’ agreement, costs incurred by reason of this appeal shall be borne by the party incurring same. See id. 42.1(d). We dismiss as moot any other pending motions, including appellant’s motion for rehearing.

PER CURIAM Panel consists of Justices Jennings, Brown, and Huddle.