Opinion
No. 2-92-108-CV.
March 3, 1993. Rehearing Overruled March 30, 1993.
Appeal from 352nd District Court, Tarrant County; Bruce Auld, Judge.
Kelly, Hart Hallman, Jonathan T. Suder, Fort Worth, for appellant.
Gandy, Michener, Swindle Whitaker, L.L.P., John Allen Chalk, P.C. and Terrie Livingston, Fort Worth, for appellee.
Before LATTIMORE, DAY and ASHWORTH (Retired), JJ.
OPINION AND JUDGMENT ON DISMISSAL OF APPEAL
On this day came on to be considered by the Court the motion of appellee, Ernst Young, to dismiss appeal. The Court finds that prior to the submission of this cause on December 2, 1992, the appellant, on December 1, 1992, filed an identical suit in the Santa Clara County Superior Court, San Jose, California. Such filing rendered moot the cause before us. Such filing was not made known to this Court at time of submission. It is therefore this Court's opinion that appellee's motion to dismiss should be granted.
It is therefore ordered, adjudged and decreed that our opinion and judgment of January 26, 1993 is withdrawn and this appeal is dismissed.
Appellee's motion for rehearing is overruled.
It is further ordered that appellant, VE Corp., pay all costs of this appeal, and that said costs be paid from the cash deposit made with the clerk of the trial court, for which let execution issue, and that this decision be certified below for observance.