In re KANSAS CITY SOUTHERN INDUSTRIES, INC.
No. 03-0179.
Supreme Court of Texas.
Argued Nov. 12, 2003. Decided July 2, 2004.
669
Garland Keith Grady, Peter Brian Schneider, Grady Schneider & Newman, L.L.P., and James Patrick Smith, James Patrick Smith, P.C., Houston, for 381 Minors.
Chief Justice PHILLIPS delivered the opinion of the Court.
The issue in this original proceeding is whether mandamus is appropriate to resolve a dispute about who is entitled to certain settlement proceeds. Relator asserts that because it clearly established the right to a return of part of the proceeds the trial court abused its discretion by subsequently approving the initial settlement without modification. Because we conclude that relator has an adequate remedy by appeal, we deny mandamus relief without reaching the merits of the dispute.
The underlying case involves the claims of over two thousand plaintiffs, about half of them minors, who were allegedly exposed to a hazardous chemical that leaked from a railroad tanker car. One of the defendants, Kansas City Southern Industries, Inc. (KCSI), agreed to settle all of the minors’ claims for $300,300. The precise amount to be paid each minor varied, depending on his or her physical symptoms, extent of treatment, and location at the time of the chemical release. All parties agree that all minor plaintiffs have fully recovered from any injuries and will have no future damages.
KCSI tendered to plaintiffs’ attorneys a check for $300,300 with the understanding that it would not be negotiated before the documents had been executed releasing all of the minors’ claims against KCSI. Plain-
Rather than obtain a final judgment and appeal, KCSI petitioned the court of appeals for mandamus relief, asserting that approximately $85,000 of the settlement still in the registry of the court should be immediately returned.2 KCSI complained that the trial court abused its discretion in approving settlements for minors that could not be found or might not exist. KCSI argued that the court had impermissibly seized its money by holding the missing minors’ share in the court‘s registry. When the court of appeals declined to grant relief, KCSI petitioned this Court for writ of mandamus.
To obtain a writ of mandamus, a relator must establish not only that the trial court clearly abused its discretion but also that no adequate remedy by appeal exists. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992). An appeal is inadequate when it comes too late to correct the court‘s error without the loss of substantial rights to the complaining party. See Perry v. Del Rio, 66 S.W.3d 239, 257 (Tex. 2001); Polaris Inv. Mgmt. Corp. v. Abascal, 892 S.W.2d 860, 862 (Tex.1995). KCSI argues that its remedy by appeal is inadequate because the trial court has improperly deprived it of the “valuable use” of its own money. That is not the permanent loss of substantial rights; it is really only a complaint that the normal appellate remedy is too slow. As we have repeatedly held, the cost or delay incident to pursuing an appeal does not make the remedy inadequate. In re Ford Motor Co., 988 S.W.2d 714, 721 (Tex.1998); CSR Ltd. v. Link, 925 S.W.2d 591, 596 (Tex.1996); Walker, 827 S.W.2d at 842; Hooks v. Fourth Court of Appeals, 808 S.W.2d 56, 60 (Tex.1991); Iley v. Hughes, 158 Tex. 362, 311 S.W.2d 648, 652 (Tex.1958). Because KCSI has not shown that its appellate remedy will cause the permanent loss of substantial rights, we deny the writ.
Justice HECHT filed a concurring opinion.
I join the Court‘s opinion and add a word only to say that one should not take from the opinion‘s businesslike approach to the legal issues now before us that the trial court proceedings it describes were proper. The trial court appointed a guardian ad litem to represent about a thousand children individually and authorized him to settle all of their personal injury claims for anywhere from a few dollars to a few hundred dollars apiece over some parents’ objections, without even telling other parents, and without ever ascertaining what injuries were suffered by 285 of the children who have never appeared to collect their portion—all with the approval of counsel for plaintiffs and defendants. The court found this global settlement to be in the children‘s best interest. It strikes me as astonishing that it should be thought in the best interest of a party before the court to have his claim for personal injuries settled without his knowledge. At oral argument, counsel for the relator and for the plaintiffs were each asked how the trial court proceedings could be justified. The only answers were simply that trial courts and guardians ad litem should have the power to do what was done here. No one cited any supporting authority.
There are a few situations in which the appointment of a guardian ad litem to represent unknown parties is authorized by statute.1 This is not one of them.