Court of Appeals of Texas,

Beaumont.

Dennis MILLER and Susan Miller, Relators,

v.

The Honorable J.L. SMITH, Respondent.

No. 09-94-087 CV.

|

Oct. 6, 1994.

Before WALKER, C.J., and BROOKSHIRE and BURGESS, JJ.

PER CURIAM.

OPINION

*1 Relators, Dennis Miller and Susan Miller, filed a motion for leave to file petition for writ of mandamus before this Court on March 7, 1994. On March 7, 1994, this Court entered an order granting relators’ motion to file petition for writ of mandamus and set argument by the parties before this Court on the petition for the writ for April 7, 1994.

Gregory Longino, real party in interest, was employed as an associated attorney by one John Cely, attorney, but Longino left this employment on April 27, 1990, to open his own law office. Cely represented relators in a workers’ compensation action and was then later sued by relators for wrongfully withholding settlement proceeds. Longino was also joined as a defendant in the action, presumably because he had been (at one time) employed by Cely.

Longino personally retained Kenzy D. Hallmark as his own attorney. However, Mr. Hallmark also had represented another defendant sued by relators.

Relators filed a motion to disqualify Mr. Hallmark alleging that he would be a witness in the malpractice action against Longino. At the hearing on the motion to disqualify, Hallmark stated that he did not intend to call himself as a witness but instead, offered to give his deposition to demonstrate there was no basis for his being disqualified. He, in fact, testified at the hearing to demonstrate why he should not be disqualified.

The trial court overruled the relators’ motion to disqualify, and the respondent gave the relators the right to reurge their motion if Mr. Hallmark’s deposition demonstrated that he would be a material witness. Respondent, in fact, offered and encouraged relators to take the deposition of Mr. Hallmark; however, relators chose to ask this Court to mandamus the respondent to disqualify Mr. Hallmark.

Relators conceded that they had not taken the deposition of Mr. Hallmark, that they had time to do so and could have so taken his deposition prior to oral argument in our Ninth Court of Appeals. We note again that respondent agreed to rehear the motion to disqualify Mr. Hallmark after relators had taken the deposition of Mr. Hallmark. This offer to rehear the motion to disqualify Mr. Hallmark is salutary to all parties.

It is apparent to our Ninth Court that the relators have not exhausted their remedies in the trial court and, therefore, they are not entitled to the relief which they seek. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916 (Tex.1985). Clearly, relators have not shown abuse of discretion by the trial judge; the trial bench acted prudently and in a manner helpful to all parties and in the interest of justice and fairness. The trial judge below acted in the furtherance of judicial economy.

The Court is of the opinion that the motion for leave to file petition for writ of mandamus was improvidently granted and the order of this Court of March 7, 1994, granting the motion is hereby withdrawn. It is therefore ordered that the motion for leave to file petition for writ of mandamus is denied and this cause is dismissed from the docket of our Ninth Court.

*2 WRIT DISMISSED.