Opinion filed March 5, 2010




                                              In The


   Eleventh Court of Appeals
                                          ____________

                                     No. 11-09-00351-CV
                                         __________

                         IN RE BARNETT GATHERING, L.P.


                                Original Mandamus Proceeding


                              MEMORANDUM OPINION

       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, “Absent 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.




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