NO. 07-01-0471-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

APRIL 18, 2002

______________________________

SCOTT MAPLES, RACHEL MAPLES AND TBA, INC., APPELLANTS

V.

MUSCLETECH, INC., APPELLEE

_________________________________

FROM THE 72^ND DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2001-515,088; HONORABLE J. BLAIR CHERRY, JUDGE

_______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.

Appellants Scott Maples, Rachel Maples, and TBA, Inc. appealed from a temporary injunction entered by the trial court in an action brought by Muscletech, Inc. to recover damages for breach of a license agreement and violation of a covenant not to compete, negligent misappropriation of trade secrets, and tortuous interference with contractual and business relations. However, appellants have now filed a motion to dismiss their appeal, asserting that the issues presented for review have been fully compromised and settled by the parties.

The motion has been filed prior to the rendition of an opinion, and it complies with the requirements of Texas Rule of Appellate Procedure 42.1(2). Thus, the motion is granted.

Accordingly, this appeal is hereby dismissed. Because this dismissal is at the request of appellants, no motion for rehearing will be entertained, and our mandate will issue forthwith.

John T. Boyd

Chief Justice

Do not publish.

LE="font-family: Times New Roman"> Relators seeking issuance of a writ of mandamus must satisfy three requirements to show entitlement to the writ: (1) a legal duty to perform; (2) a demand for performance; and (3) a refusal to act. Stoner v. Massey, 586 S.W.2d 843, 846 (Tex. 1979). A court is not required to consider a motion not called to its attention. Metzger v. Sebek, 892 S.W.2d 20, 49 (Tex.App.--Houston [1st Dist.] 1994, writ denied).

Relator's petition does not demonstrate that his motion has been called to respondent's attention or presented to respondent for a ruling. Relator has not presented a record which shows respondent has refused to act, thus relator has not shown entitlement to the relief sought.

The petition for writ of mandamus is denied.

Phil Johnson

Chief Justice