IN RE: VULCAN MATERIALS COMPANY AND KELCO SALES & ENGINEERING COMPANY, A DIVISION OF POLLEY, INC. ("KELCO")--Appeal from 347th District Court of Nueces County

 NUMBER 13-05-440-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

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IN RE VULCAN MATERIALS COMPANY AND

KELCO SALES & ENGINEERING COMPANY

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On Petition for Writ of Mandamus

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MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

Per Curiam Memorandum Opinion[1]

Relator, Vulcan Materials Company, filed a petition for writ of mandamus with this Court on July 12, 2005. Kelco Sales & Engineering Company filed a motion to join the petition for writ of mandamus on July 22, 2005. This Court granted Kelco Sales & Engineering Company=s joinder on August 2, 2005.

Vulcan Materials Company has now filed a motion requesting that this Court dismiss it from this original proceeding because it has been non-suited in the underlying proceeding. Kelco remains a relator in this original proceeding.

We GRANT Vulcan Materials Company=s motion to dismiss. Accordingly, this original proceeding is DISMISSED. The original proceeding filed by Kelco Sales & Engineering Company is ordered SEVERED and will be assigned cause number 13-05-539-CV. We ORDER the Clerk of this Court to transfer all pleadings and records relevant to Kelco=s petition for writ of mandamus from this cause number to cause number 13-05-539-CV.

The Court requests that real parties in interest file a response to Kelco=s petition for writ of mandamus on or before August 30, 2005. Any such response should be filed in the severed cause.

PER CURIAM

Justice Rodriguez not participating.

Memorandum Opinion delivered and filed

this 24th day of August, 2005.

[1] See Tex. R. App. P. 52.8(d) (AWhen denying relief, the court may hand down an opinion but is not required to do so.@); Tex. R. App. P. 47.4 (distinguishing opinions and memorandum opinions).