A & W Props. v. Kansas City Southern Ry.

• Decision Date: 28 August 2006
• Docket Number: No. 05-04-01669-CV.,05-04-01669-CV.
• Citation: 200 S.W.3d 342
• Parties: A & W PROPERTIES, INC., Appellant v. THE KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 342

200 S.W.3d 342

A & W PROPERTIES, INC., Appellant v. THE KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellee.

No. 05-04-01669-CV.

Court of Appeals of Texas, Dallas.

August 28, 2006.

Robert H. Westerburg, McCorkle Westerburg & Thornton, P.C., Dallas, TX, for Appellant.

Paul Oliver Wickes, Hunton & Williams LLP, Dallas, TX, for Appellee.

Before Justices FITZGERALD, LANGMIERS, and MAZZANT.

OPINION

Opinion by Justice FITZGERALD.

A & W Properties, Inc. appeals a takenothing summary judgment entered against it and in favor of Kansas City Southern Railway Company (the "Railroad"). In a single issue, A & W challenges the trial court's conclusion that A & W's state-law claims are preempted by the Interstate Commerce Commission Termination Act (the "ICCTA"). We affirm the judgment of the trial court in part and reverse and remand in part.

BACKGROUND

A & W acquired a parcel of land in Garland, Texas, for purposes of development. A & W's land is adjacent to land owned by the Railroad. The Railroad's property includes a creek, which flows through a culvert. The culvert, in turn, runs under a bridge. Tracks on the bridge carry the Railroad across the creek. In July 2003, one day after A & W acquired its land, it advised the Railroad that a study had revealed that A & W's land lay in a flood plain. The study was performed in May 2003, and was required by the City of Garland for purposes of the development planned by A & W. The study indicated the Railroad's culvert would be too narrow to contain the creek in the event of a 100-year flood. A & W makes no allegation of actual or imminent flooding of its property. Instead, A & W alleges it was unable to obtain a building permit for the planned development because of the possibility of flooding. A & W demanded that the Railroad fix the problem; the Railroad refused.

A & W filed this lawsuit against the Railroad, pleading the following causes of action: breach of statutory duty, by violating article 6328¹; nuisance; negligence trespass; and a request for injunctive relief.² As an alternative to injunctive relief to prevent any possibility of flooding, the petition sought an award of actual and exemplary damages. In an amended petition, A & W added a second ground to its breach-of-statutory-duty claim, alleging a violation of section 11.086 of the Texas Water Code.³

THE RAILROAD'S SUMMARY JUDGMENT MOTION

The Railroad moved for summary judgment on all of A & W's claims on the single ground that the claims were preempted by federal law. The Railroad's summary judgment evidence includes an affidavit from Kenneth Lee, the Railroad's Director of Field Engineering. Lee's affidavit states, that to remedy the bridge-culvert crossing as A & W requested, the Railroad must:

(I) spend hundreds of thousands of dollars to make a significant capital improvement to its main line rail facility, (ii) temporarily shut down the stretch of track that passes by the Property to perform the construction work to enlarge the bridge, and (iii) operate trains at a dramatically reduced speed during those periods when the track is not shut down completely but while work is being done in the area.

Lee's affidavit includes a minimum estimate of cost to perform the work of "more than $550,000."

The motion also relied on an affidavit from Mark Dabney, a terminal Superintendent for the Railroad. Dabney's job duties include managing car and train movements over all the Railroad's tracks in Texas. Dabney's affidavit outlines the patterns of the Railroad's traffic through the North Texas area, and it describes the rerouting and switching maneuver that trains would have to undergo to accommodate the crossing construction. The affidavit explains that most Railroad trains are more than 6,000 feet in length, and are occasionally more than 10,000 feet in length. But because of the size of the switching location, the Railroad would only be able to operate trains 4780 feet in length, or less. As Dabney testifies:

Thus, to reroute the existing traffic and make the switching move . . . [the Railroad] would have to operate shorter trains than it normally does. This, of course, would require [the Railroad] to operate additional trains to move the same amount of freight. Operating the additional trains would add to [the Railroad's] costs in that it would have to use additional locomotives and train crews.

According to Dabney, the delays caused by the rerouting itself, the switching procedures and the additional trains would be significant and the congestion on the main line track would be "unworkable." He concluded that the track cannot be shut down without having a significant effect on the Railroad's rail transportation.

A & W responded, arguing its state-law claims were not preempted because those claims: (1) do not affect interstate commerce, (2) do not affect railroad operations, and (3) are based on the State's police power. Finally, A & W argued that its inverse condemnation claim — added in its live pleading — had not been addressed by the Railroad's motion and evidence concerning preemption; thus, the Railroad had failed to prove that claim was preempted, and summary judgment was inappropriate.⁴ A & W did not challenge any of the Railroad's evidence. A & W's summary judgment evidence included an affidavit from Tom Allred, one of the principles of A & W. Allred's affidavit includes the background facts concerning A & W's learning that the property lay in the flood plain and its subsequent purchase of the property and demand that the Railroad enlarge the culvert to alleviate the problem. It also offers "other possible solutions to the flooding problem at [A & W's] Property that would not require any work to be done to the culvert or [the Railroad's] railroad line." Allred's affidavit suggests that the Railroad: build a retaining wall or berm on A & W's property, bring in sufficient fill dirt to raise the level of A & W's property above the level of the flood plain, or build a detention pond on A & W's property.

The trial court granted the Railroad's motion and entered a final judgment in the suit. A & W appeals.

SUMMARY JUDGMENT STANDARDS

The standards for reviewing a summary judgment are well established. The party moving for summary judgment has the burden of showing no genuine issue of material fact exists and it is entitled to judgment as a matter of law. TEX.R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985); Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972). When reviewing a summary judgment, we take as true all evidence favorable to the non-movant and indulge every reasonable inference and resolve any doubts in favor of the non-movant. Nixon, 690 S.W.2d at 548-49. A defendant may prevail on summary judgment by pleading and conclusively establishing an affirmative defense. Zep Mfg. Co. v. Harthcock, 824 S.W.2d 654, 657 (Tex.App.-Dallas 1992, no writ).

PREEMPTION BY THE ICCTA

The single ground of the Railroad's motion for summary judgment is the affirmative defense of preemption of A & W's state-law remedies by the Interstate Commerce Commission Termination Act ("ICCTA"). Preemption law is rooted in the Constitution's Supremacy Clause, which states "the Laws of the United States . . . shall be the Supreme Law of the Land . . . any Thing in the Constitution or the Laws of any State to the Contrary notwithstanding." U.S. CONST. art. VI, cl. 2. On that basis, federal law will displace state law when:

(1) Congress has acted to expressly preempt state or local law, (2) the intent of Congress to preempt state or local law may be inferred from the existence of a pervasive regulatory scheme, or (3) state or local law conflicts with federal law or otherwise frustrates the accomplishment of a federal objective.

Rushing v. Kansas City S. Ry. Co., 194 F.Supp.2d 493, 497 (S.D.Miss.2001) (citing Hodges v. Delta Airlines, Inc., 44 F.3d 334, 336 n. 1 (5th Cir.1995)).

The ICCTA's specific preemption clause provides the focus of our analysis. See Friberg v. Kansas City S. Ry., 267 F.3d 439, 442 (5th Cir.2001). The ICCTA states that the Surface Transportation Board ("STB") has exclusive jurisdiction over:

(1) transportation by rail carriers, and the remedies provided in this act with respect to rates, classifications, rules (including car service, interchange, and other operating rules), practices, routes, services, and facilities of such carriers; and

(2) the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching or side tracks, or facilities, even if the tracks are located, or intended to be located, entirely in one State.

49 U.S.C. § 10501(b) (1996). This section of the ICCTA goes on to provide that "the remedies provided under this part with respect to regulation of rail transportation are exclusive and preempt the remedies provided under Federal or State law." Id. One of our sister courts has remarked on the breadth of the ICCTA's preemption provision generally, stating:

Courts have consistently interpreted this preemption language to be broad in scope. . . . . Indeed, "[i]t is difficult to imagine a broader statement of Congress's intent to preempt state regulatory authority over railroad operations."

Burlington N. & Santa Fe Ry. Co. v. City of Houston, 171 S.W.3d 240, 247 (Tex. App.-Houston [14th Dist.] 2005, no pet.) (quoting CSX Transp., Inc. v. Georgia Pub. Serv. Comm'n, 944 F.Supp. 1573, 1581 (N.D.Ga.1996)(emphasis added)). As to the specific facts of this case, the definition section of the ICCTA states "rail carriers" include persons providing "railroad transportation" for compensation, and that "railroad" includes a bridge used by or in connection with a railroad. 49 U.S.C. § 10102(5), (6)(A).⁵ Nevertheless, A & W proffers two grounds for excusing its claims from this broad preemptive scope.

Police Power

First, A & W argues its claims represent enforcement of the state's traditional police power and that...