AL SCOGGINS Justice

From the 249th District Court Johnson County, Texas
Trial Court No. DC-C201500684

MEMORANDUM OPINION

In five issues, appellants, Laurence Stevenson, Effie Stevenson, Ida Simon, and Kerry D. Simon, complain about a summary judgment and a sanctions order granted in favor of appellees, Fort Worth & Western Railroad Company ("FWWR") and Tarantula Corporation. Because we overrule all of appellants' issues, we affirm the judgment and sanctions order of the trial court.

I. BACKGROUND

This is a damages suit for personal injury and property damage arising out of a collision between an automobile and a train. In its original petition, FWWR alleged the following facts:

5. On or about February 11, 2015, Stephenson [sic] caused a collision with FWWR's train. Stephenson [sic] failed to yield the right of way at an intersection of train tracks and a highway and caused a collision with FWWR's train. The crossing where the incident occurred is located at or near the intersection of Highway 171 and County Road 1000 (the "crossing"), just south of Cresson in Johnson County, Texas.

6. At the time of the incident, Stephenson [sic] was properly warned of the crossing by the presence of a crossbuck (the familiar black and white sign in the shape of an "X" that says "railroad crossing"). Stephenson [sic] disregarded this warning and stopped his vehicle in a manner that caused it to block the tracks.

7. As a result of Stephenson's [sic] acts and omissions, FWWR has suffered damages within the jurisdictional limits of the Court.

Laurence filed an answer generally denying all of the allegations contained in FWWR's original petition and asserting numerous affirmative defenses. Later, Laurence filed counterclaims, arguing that FWWR proximately caused disabling personal injuries to him under "Respondeat superior for [FWWR's] negligence, negligence per se and/or gross negligence for all of his actual damages and for his exemplary damages . . . ." Thereafter, Effie Stevenson, Ida Simon, and Kerry D. Simon filed suit against FWWR and Tarantula, asserting respondeat superior, negligence, negligence per se, gross negligence, and strict-products-liability claims.

Subsequently, several of the parties filed amended petitions, which included an amendment filed by Effie Stevenson, Ida Simon, Kerry D. Simon to add Laurence as a co-plaintiff against both FWWR and Tarantula. Additionally, FWWR filed a traditional motion for summary judgment, arguing that it was entitled to judgment as a matter of law because "Stevenson stopped the vehicle he was driving in such a manner as to park the attached trailer upon the tracks and as a matter of law he failed to yield the right-of-way to the train and thus proximately causing [sic] the collision." Laurence filed a response to FWWR's summary-judgment motion, without attaching any evidence. However, several days later and independent of his response, Laurence filed his affidavit and statement, as well as an actuarial report prepared by Andrew C. Blum.

Later in the case, FWWR filed a motion for sanctions against Laurence's attorneys for, among other things, repeatedly filing irrelevant attorney-client communications—an invoice between FWWR and its attorneys that was inadvertently produced—despite being ordered by the trial court to return the communications to FWWR. The trial court ultimately sanctioned appellants' counsel for the disclosure of the irrelevant invoice and ordered counsel to return the invoice and all copies made, as well as refrain from including the invoice in subsequent filings in the trial court.

Several months later, the trial court entered its final order and judgment, wherein the trial court granted FWWR's summary-judgment motion against Laurence and awarded FWWR $8,753.14 in damages, along with post-judgment interest. Additionally, the trial court ordered that appellants take nothing for their counterclaims against FWWR and Tarantula. Appellants filed a motion for new trial, which was overruled by operation of law. See TEX. R. CIV. P. 329b(c). This appeal followed.

II. STANDARD OF REVIEW

We review the trial court's grant of a traditional motion for summary judgment de novo. See Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). When reviewing a traditional motion for summary judgment, we must determine whether the movant met its burden to establish that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. See TEX. R. CIV. P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). The movant bears the burden of proof in a traditional motion for summary judgment, and all doubts about the existence of a genuine issue of material fact are resolved against the movant. See Grant, 73 S.W.3d at 215. We take as true all evidence favorable to the non-movant, and we indulge every reasonable inference and resolve any doubts in the non-movant's favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).

III. FEDERAL PREEMPTION

In their first issue, appellants complain that the 2007 Congressional Amendments to the Federal Railroad Safety Act superseded FWWR's federal-preemption defense.

Under the Supremacy Clause of the United States Constitution, federal law may supersede or "preempt" state law in the following ways: (1) Congress may preempt all state law in a particular field by express preemptive language; (2) Congress may inferentially preempt all state law in a particular field, in the absence of express preemptive language, when the scheme of the federal regulation is sufficiently comprehensive to reasonably infer Congress has "left no room" for supplementary state regulation; or (3) even where Congress has not displaced state regulation in a particular field, federal law will nullify state law to the extent that they actually conflict. Hillsborough County, Fla. v. Auto. Med. Labs., Inc., 471 U.S. 707, 713, 105 S. Ct. 2371, 85 L. Ed. 714 (1985); Trice v. State, 712 S.W.2d 842, 848 (Tex. App.—Waco 1986, writ ref'd n.r.e.).

Congress enacted the Federal Railroad Safety Act of 1970 ("FRSA") "to promote safety in all areas of railroad operations and to reduce railroad-related accidents and injuries to persons." Mo. Pac. R.R. v. Limmer, 299 S.W.3d 78, 82 (Tex. 2009) (citing Pub. L. No. 91-458 § 101, 84 Stat. 971). The FRSA states that "[l]aws, regulations, and orders related to railroad safety [should] be nationally uniform to the extent practicable." Id. (quoting 49 U.S.C. § 20106(a)(1)). To further that goal, the FRSA authorizes the Secretary of Transportation to "prescribe regulations and issue orders for every area of railroad safety" and provides in section 20106 that a "State may adopt or continue in force a law, regulation, or order related to railroad safety . . . until the Secretary of Transportation . . . prescribes a regulation or issues an order covering the subject matter of the State requirement . . . ." Id. (citing 49 U.S.C. § 20106(a)(2)). Furthermore, in CSX Transportation, Inc. v. Easterwood and Norfolk Southern Railway v. Shanklin, the United States Supreme Court held "that under section 20106, federal regulations 'covering the subject matter' of a railroad safety requirement of state law preempt state law, including common law tort liability." Id. (citing Norfolk S. Ry. Co. v. Shanklin, 529 U.S. 344, 357-58, 120 S. Ct. 1467, 146 L. Ed. 2d 374 (2000); CSX Transp., Inc., v. Easterwood, 507 U.S. 658, 670-71, 113 S. Ct. 1732, 123 L. Ed. 2d 387 (1993)).

As shown below, appellants' claims related to the crossing in this case were preempted because federal funds were used in the installation of retro-reflective tape during a federal safety improvement program. The Highway Safety Act of 1973 ("HSA") granted federal funding to states to "eliminate[e] . . . hazards of railroad-highway crossings." Id. (citing Pub. L. No. 93-87, §§ 201, 203, 87 Stat. 282, 282-83; Shanklin, 529 U.S. at 348; Easterwood, 507 U.S. at 662-63). Both the FRSA and the HSA instituted numerous regulations to address the installation of warning devices at railroad crossings. Id. In particular, 23 C.F.R. § 646.214(b)(3) and (4) control the design of grade-crossing improvements for railroad-highway projects that receive federal funding. Id.

Subsection (b)(3) requires adequate warning devices that include automatic gates with flashing light signals if any of six enumerated conditions is present. Where none is present, subsection (b)(4) states that the type of warning device to be installed, whether the determination is made by a State regulatory agency, State highway agency, and/or the railroad, is subject to the approval of the FHWA." According to the Supreme Court, when subsections (b)(3) and (b)(4) apply, the Secretary has determined the devices to be installed and the means by which railroads are to participate in their selection. These regulations therefore cover the subject matter of state law which, like the tort law . . . seeks to impose an independent duty on a railroad to identify and/or repair dangerous crossings, and thus preempt common law tort liability for a claim that a warning device installed at a railroad crossing was inadequate.

It was uncontested in the trial court that federal funds were used to improve the crossbuck warning device at the crossing involved in this case. Indeed, on June 2, 2004, the State of Texas and FWWR entered into a master agreement to upgrade the crossbuck warning signs at highway-railroad crossings along the tracks utilized by FWWR. The upgrade project was 90% funded by federal funds with the remainder funded by the State. The summary-judgment evidence traced the federal funds from the federal bank account to the crossing involved in this case and demonstrated the work performed. Therefore, in light of this evidence and the aforementioned case law, Stevenson's claims related to the safety of the crossing were preempted.

However, despite the foregoing, Stevenson claims that 2007 amendments to the FRSA eliminated federal preemption. This contention has been rejected in the federal courts. See Henning v. Union Pac. R.R. Co., 530 F.3d 1206, 1214-15 (10th Cir. 2008) ("Congress did not overrule Shanklin, but instead provided clarification for courts interpreting Shanklin, establishing FRSA preemption does not apply when a railroad violates a federal safety standard of care."); see also Van Buren v. Burlington N. Santa Fe Ry. Co., 544 F. Supp. 2d 867, 876 (D. Neb. 2008) ("After amendment of section 20106, the familiar preemption analysis of CSX Transp., Inc. v. Easterwood . . . Norfolk S. Ry. Co. v. Shanklin . . ., and their progeny is applied to allegations of state law negligence, unless: (1) the negligence involves a railroad's failure to comply with a federal standard of care and section 20106(b)(1)(A) applies or (2) the negligence involves a railroad's failure to comply with its own plan, rule, or standard created pursuant to federal regulation and section 20106(b)(1)(B) applies." (emphasis in original)). The 2007 amendments have no impact on the preemption issues supporting the trial court's orders in this case; furthermore, appellants have not demonstrated that the 2007 amendments set aside the federal preemption scheme outlined in Easterwood and Shanklin. See Henning, 530 F.3d at 1214-15; see also Van Buren, 544 F. Supp. 2d at 876. Accordingly, we overrule appellant's first issue.

IV. PROXIMATE CAUSATION

In their second and fourth issues, appellants assert that the trial court erred in granting judgment in favor of FWWR because the rig Laurence was driving complied with state law regarding the length of the rig; therefore, Laurence's actions could not have been the proximate cause of the collision.

As mentioned earlier, FWWR alleged negligence and negligence per se claims against Laurence. "Under common law, one person owes another the duty to act as a reasonably prudent person would act under the same or similar circumstances regarding any reasonably foreseeable risk." Williams v. Parker, 472 S.W.3d 467, 471 (Tex. App.—Waco 2015, no pet.). "However, '[w]here the Legislature has declared that a particular act shall not be done, it fixes a standard of reasonable care, and an unexcused violation of the statute constitutes negligence or contributory negligence as a matter of law.'" Id. (quoting Mo. Pac. R.R. Co. v. Am. Statesman, 552 S.W.2d 99, 103 (Tex. 1977) & citing Kelly v. Brown, 260 S.W.3d 212, 218 (Tex. App.—Dallas 2008, pet. dism'd)). "The doctrine under which courts rely on a penal statute to define a reasonably prudent person's standard of care is referred to as negligence per se." Id. (citing Reeder v. Daniel, 61 S.W.3d 359, 361-62 (Tex. 2001).

Generally, a party alleging negligence per se as a ground of recovery must assume the burden of proving a statutory violation. Id. "The typical submission of such a case includes an issue inquiring whether the party charged is actually guilty of legislatively proscribed conduct along with an issue inquiring whether the violative conduct was the proximate cause of the accident." Id. at 471-72. "The violator may excuse his conduct, but he must produce some evidence of a legally acceptable excuse." Id. at 472.

FWWR's negligence and negligence per se claims were premised on Stevenson's violation of the duty of care imposed by sections 545.251 and 545.302 of the Texas Transportation Code. See TEX. TRANSP. CODE ANN. §§ 545.251(a), 545.302(a)(8) (West 2011). Specifically, section 545.251 requires an automobile driver to stop sufficiently clear of a railroad crossing if:

(1) a clearly visible railroad signal warns of the approach of a railroad train;

(2) a crossing gate is lowered, or a flagger warns of the approach or passage of a train;

(3) a railroad engine approaching within approximately 1,500 feet of the highway crossing emits a signal audible from that distance and the engine is an immediate hazard because of its speed or proximity to the crossing;

(4) an approaching railroad train is plainly visible to the operator and is in hazardous proximity to the crossing; or

(5) the operator is required to stop by:

(A)other law;

(B)a rule adopted under a statute;

(C)an official traffic-control device;

(D)a traffic-control signal.

An operator of a vehicle who approaches a railroad grade crossing equipped with railroad crossbuck signs without automatic, electric, or mechanical signal devices, crossing gates, or a flagger warning of the approach or passage of a train shall yield the right-of-way to a train in hazardous proximity to the crossing, and proceed at a speed that is reasonable for the existing conditions. If required for safety, the operator shall stop at a clearly marked stop line before the grade crossing or, if no stop line exists, not closer than 15 feet or father than 50 feet from the nearest rail.

Among the items included in the summary-judgment record was the police report documenting the incident. The police report indicated that the railroad crossing in question did not have railroad-crossing arms; rather, the crossing had warning signs. In any event, while towing a forty-foot trailer, Laurence proceeded across the railroad tracks. He stopped at the next stop sign while waiting to make a left turn during the daylight hours of February 11, 2015. Though Laurence's vehicle cleared the railroad tracks, the trailer was partially stopped on the railroad tracks. The police report reflected that Laurence had been waiting for two minutes to make a left turn when the train collided with the portion of the trailer that was stopped on the railroad tracks. Also attached to FWWR's summary-judgment motion were admissions from Laurence, wherein he admitted to stopping on the railroad tracks, though he complained that the distance between the railroad tracks and the stop sign was insufficient and unsafe and that the combined length of his vehicle and the trailer was lawful under Texas and federal regulations. These sentiments were reiterated in Laurence's affidavit that was filed in response to FWWR's summary-judgment motion.

Based on the foregoing, the summary-judgment record demonstrates that Laurence stopped on the railroad tracks and failed to yield the right-of-way to a train in hazardous proximity to the crossing. See TEX. TRANSP. CODE ANN. §§ 545.251(a)-(c), 545.302(a)(8). Accordingly, we conclude that the trial court did not err in implicitly concluding that FWWR's summary-judgment evidence established as a matter of law that Laurence violated sections 545.251 and 545.302 of the Transportation Code. See id. §§ 545.251(a)-(c), 545.302(a)(8); see also Thacker v. State, No. 03-15-00079-CR, 2015 Tex. App. LEXIS 11535, at *26 (Tex. App.—Austin Nov. 6, 2015, pet. ref'd) (mem. op., not designated for publication) (noting that "the Transportation Code prohibits individuals from parking on a railroad track or parking within 50 feet of the nearest rail or railroad crossing" (internal citations & quotations omitted)). And because the violation of any statute, ordinance, administrative order, or basis of duty constitutes negligence per se, we cannot say that the trial court erred in: (1) implicitly concluding that FWWR established its negligence per se claim as a matter of law; (2) implicitly concluding that Laurence's actions were the sole proximate cause of the collision; and (3) granting FWWR's summary-judgment motion. See Williams, 472 S.W.3d at 471; Sheppard v. Judkins, 476 S.W.2d 102, 107 (Tex. Civ. App.—Texarkana 1971, writ ref'd n.r.e.) ("The violation of any statute, ordinance, administrative order or basis of duty, is usually classified as negligence per se."); see also Knott, 128 S.W.3d at 215; Dorsett, 164 S.W.3d at 661. We overrule appellants' second and fourth issues.

V. THE TRIAL COURT'S SANCTIONS ORDER

In their third issue, appellants complain about the trial court's sanctions order. In particular, appellants argue that the trial court abused its discretion by ordering counsel to return relevant, discoverable, and admissible FWWR invoices and to desist from including the invoices in subsequent pleadings.

We review the imposition of sanctions for an abuse of discretion. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007) (citing Am. Flood Research, Inc. v. Jones, 192 S.W.3d 581, 583 (Tex. 2006); Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004)). "A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles." Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003).

The record reflects that the filings of appellants' attorney often contained an unrelated invoice sent to FWWR by its attorneys. This invoice was inadvertently attached by FWWR to a mandatory Highway User Injury Inquiry Form that was dated February 16, 2015, and addressed to Laurence. FWWR characterized this invoice as privileged attorney-client communications and requested that appellants' counsel refrain from including the invoice in future filings. Contrary to appellants' assertions, the invoice was directed to FWWR, not Laurence. Furthermore, there is no indication that the invoice pertains to this case.

In any event, appellants' counsel was directed by appellees and the trial court to cease using the invoice in public filings and return the original and all copies of the communication. However, appellants' counsel continued to include the invoice in subsequent public filings. Ultimately, the trial court concluded that:

THE COURT FINDS that Newton Schwartz made use of an attorney/client communication invoice regarding an unrelated matter between FWWR and its attorneys after being requested to cease using the invoice in public filings and to return the original and all copies of the communication.

. . .

THE COURT FURTHER FINDS that Newton Schwartz has failed to exhibit professional courtesy that is required by an officer of the court regarding an attorneys' interaction with other attorneys and with the Court, regarding the said invoice.

THE COURT ORDERS Newton Schwartz to return the said invoice and all copies made to counsel for FWWR and to immediately cease filing a copy of the invoice in any public record. Further the Court orders Newton Schwartz and all counsel to observe the professional courtesies required by an officer of the Court in his/her dealings with opposing counsel and with the Court.

Because the invoice contains no information relevant to this case, and because appellants' counsel had a duty to return the misappropriated privileged invoice to FWWR, we cannot say that the trial court abused its discretion in sanctioning appellants' inclusion of the invoice in his subsequent filings in the trial court. See Low, 221 S.W.3d at 614; Am. Flood Research, Inc., 192 S.W.3d at 583; Cire, 134 S.W.3d at 838; see also TEX. R. CIV. P. 193.3(d); In re Meador, 968 S.W.2d 346, 353 (Tex. 1998) ("Similarly, the privilege should not affect an attorney's obligation to return misappropriated privileged documents."). As such, we overrule appellants' third issue.

VI. SUMMARY JUDGMENTS AND THE FEDERAL AND STATE CONSTITUTIONS

In their fifth issue, appellants assert that the summary-judgment process violates their right to a jury trial under the Texas and United States Constitutions. Summary-judgment rules do not infringe on any right to a jury trial. See Fidelity & Deposit Co. of Maryland v. United States, 187 U.S. 315, 319-20, 23 S. Ct. 120, 47 L. Ed. 194 (1902); Lattrell v. Chrysler Corp., 79 S.W.3d 141, 149-51 (Tex. App.—Texarkana 2002, no pet.) ("Summary judgment proceedings have long been recognized in the law, and this procedure does not deny a party to have a remedy by due course of law in open court."); see also Espinoza, 2000 Tex. App. LEXIS 3284, at *6 n.3. Indeed, the Texas Constitution does not guarantee a jury trial in a civil case when no factual issues exist, making the grant of a summary judgment constitutional. See Tex. Workers' Compensation Comm'n v. Garcia, 893 S.W.2d 504, 526 (Tex. 1995); Schroder v. Tex. & Pac. Ry. Co., 243 S.W.2d 261, 263 (Tex. Civ. App.—Dallas 1951, no writ) (finding that summary judgment does not infringe on the right to a jury trial in the Texas Constitution); see also Espinoza, 2000 Tex. App. LEXIS 3284, at *6 n.3. Accordingly, we cannot conclude that the trial court's granting of summary judgment in favor of FWWR violated appellants' constitutional right to a jury trial. We overrule appellants' fifth issue.

VII. CONCLUSION

Having overruled all of appellant's issues, we affirm the judgment and sanctions order of the trial court.

AL SCOGGINS

Justice Before Chief Justice Gray, Justice Davis, and Justice Scoggins
Affirmed
Opinion delivered and filed October 4, 2017
[CV06]