In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-06-353 CV
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IN RE KARMAY JANITORIAL CO.
Karmay Janitorial Co. petitions the Court for a writ of mandamus to compel the trial court to vacate its interlocutory orders excluding the testimony of the relator's expert witness, and denying the relator's motion for continuance. The underlying suit is a slip and fall case in which the real party in interest, Pauline Barnett, alleges negligence by the relator's floor cleaning crew. The trial court ruled that the relator failed to timely designate the witness. Trial is set for August 28, 2006.
Assuming without deciding that the trial court abused its discretion, we hold that the relator failed to establish that appeal will not be an adequate remedy. Supreme Court precedent recognizes appeal as the appropriate remedy for the erroneous exclusion of an expert witness. See generally In re Ford Motor Co., 988 S.W.2d 714, 721 (Tex.1998); Walker v. Packer, 827 S.W.2d 833, 843 (Tex. 1992). The denial of a motion for continuance is an incidental trial ruling ordinarily not reviewable by mandamus. Gen. Motors Corp. v. Gayle, 951 S.W.2d 469, 477 (Tex. 1997). Relator does not explain how this particular case presents unique circumstances justifying extraordinary relief for complaints historically not subject to mandamus. See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136-37 (Tex. 2004). The relator's petition for writ of mandamus is denied. We deny the relator's motion for an emergency stay of the proceedings in the trial court.
WRIT DENIED.
PER CURIAM
Opinion Delivered August 24, 2006
Before McKeithen, C.J., Gaultney and Horton, JJ.