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2010
 
 
 
 
 
 
                                                                        In The
                                                                              
           Eleventh Court of Appeals
                                                                 ____________
 
                                                           No. 11-09-00351-CV
                                                    __________
 
                                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. 
 

