DENY; and Opinion Filed July 12, 2016.




                                          S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-16-00737-CV

             IN RE BETTIE PRIESTER AND JOHN PRIESTER, JR., Relators

                  Original Proceeding from the 429th Judicial District Court
                                    Collin County, Texas
                            Trial Court Cause No. 429-04751-2014

                              MEMORANDUM OPINION
                           Before Justices Bridges, Myers, and Schenck
                                   Opinion by Justice Bridges
       This case involves a Rule 736 expedited foreclosure action. TEX. R. CIV. P. 736. In this

petition for writ of mandamus, relators complain that the trial court has not signed a proposed

order vacating that court’s prior order granting expedited foreclosure. Relators ask this Court to

order the trial court to vacate the expedited foreclosure order.

       To be entitled to mandamus relief, a relator must show both that the trial court has clearly

abused its discretion and that relator has no adequate appellate remedy. In re Prudential Ins. Co.,

148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). When a motion is properly pending

before a trial court, the act of considering and ruling on the motion is a ministerial act. Eli Lilly

and Co. v. Marshall, 829 S.W.2d 157, 158 (Tex. 1992) (orig. proceeding). Mandamus relief

generally requires a predicate request for an action and a refusal of that request. Axelson, Inc. v.

McIlhany, 798 S.W.2d 550, 556 (Tex. 1990); In re Villarreal, 96 S.W.3d 708, 710 n. 2 (Tex.

App.—Amarillo 2003, orig. proceeding) (filing something with the District Clerk does not
demonstrate that a motion has been brought to the trial court’s attention). Those requirements are

excused when such a request would have been futile and the trial court's refusal little more than a

formality. In re Brown, 277 S.W.3d 474, 482-83 (Tex. App.—Houston [14th Dist.] 2009, orig.

proceeding). A trial court abuses its discretion if it refuses to rule within a reasonable time.

Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App.—San Antonio 1997, orig.

proceeding) (court must be given a reasonable time to perform its ministerial duty to rule).

       Based on the record presented, we conclude relators have failed to show themselves

entitled to the relief requested. Accordingly, we DENY relators’ petition for writ of mandamus.

TEX. R. APP. P. 52.8(a); Walker v. Packer, 827 S.W.2d 833, 839-844 (Tex.1992) (orig.

proceeding); see also Axelson, Inc., 798 S.W.2d at 556.




                                                     /s/ David Bridges
                                                     DAVID BRIDGES
                                                     JUSTICE


160737F.P05




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