
    Scott KAISER d/b/a Tri Color Painting, Inc., Appellant, v. ROSS MERY BUILDERS, INC. and Ross Mery, Appellees.
    No. 04-97-00382-CV.
    Court of Appeals of Texas, San Antonio.
    Oct. 22, 1997.
    David Lee Cunningham, Killian, Hayden & Cunningham, San Antonio, for Appellant.
    Richard H. Sommer, Hibler & Sommer (Individual Practitioners), San Antonio, for Appellee.
    Before HARDBERGER, C.J., and LÓPEZ and DUNCAN, JJ.
   OPINION

HARDBERGER, Chief Justice.

On September 18, 1997, appellees filed a motion to dismiss or abate this appeal, requesting that the appeal be dismissed “on grounds of mootness.” Based on the information provided in appellees’ motion, we were uncertain whether dismissing the appeal as moot was in accordance with the parties’ agreement; therefore, we ordered appellant to respond. In our order, we cited our prior decision in Panterra Corp. v. American Dairy Queen, 908 S.W.2d 300 (Tex.App.—San Antonio 1995, no writ), and explained the effect of dismissing the appeal as moot. On October 7, 1997, appellant filed a response, stating that he was in agreement with the dismissal of the appeal as moot.

Therefore, appellees’ motion to dismiss is granted. See Tex.R.App. P. 42.1(a). The cause is moot. All previous orders and judgments, both trial and appellate, are set aside, and the cause is dismissed. Freeman v. Burrows, 141 Tex. 318, 171 S.W.2d 863, 863-64 (1943); Panterra v. American Dairy Queen, 908 S.W.2d 300, 301 (Tex.App.—San Antonio 1995, no writ). Costs of appeal are assessed against the parties who incurred them.

DUNCAN, J., issues dissenting opinion.

DUNCAN, Justice,

dissenting.

For the reasons previously set forth, I respectfully dissent. See Panterra Corp. v. American Dairy Queen, 908 S.W.2d 300, 301 (Tex.App.—San Antonio 1995, no writ) (Duncan, J., dissenting).  