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Opinion filed March 5, 2010
In The
Eleventh Court of Appeals
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No. 11-09-00351-CV
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IN RE BARNETT GATHERING, L.P.
Original Mandamus Proceeding
M E M O R A N D U M O P I N I O N
Barnett Gathering, L.P., has filed in this court a petition for writ of mandamus seeking to compel the trial court to grant its motion to dismiss and to reinstate the award of the special commissioners. This mandamus action stems from a condemnation proceeding wherein the landowner Sam Otto Gaddy filed objections to the award of the special commissioners. Barnett Gathering subsequently filed a motion to dismiss the objections, asserting that Barnett Gathering was not timely served with the objections. The trial court denied the motion to dismiss, and Barnett Gathering now seeks mandamus relief in this court. We deny that request.
Mandamus is an extraordinary remedy that is available to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no adequate remedy by appeal. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding). Even if we were to agree that the trial court clearly abused its discretion or violated a duty imposed by law when it denied Barnett Gathering=s motion to dismiss, we cannot grant mandamus relief because Barnett Gathering has an adequate remedy by appeal. As stated by the supreme court, AAbsent extraordinary circumstances not present here, a denial of a motion to dismiss or a plea in abatement is a ruling incident to the ordinary trial process which will not be corrected by mandamus, but by the legal remedy of the ordinary appellate process.@ Hooks v. Fourth Court of Appeals, 808 S.W.2d 56, 59 (Tex. 1991) (orig. proceeding). There are no extraordinary circumstances present in this case. Barnett Gathering has already taken possession of the condemned property, and the only remaining issue is the amount to be awarded to the landowner.
The petition for writ of mandamus is denied.
PER CURIAM
March 5, 2010
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.