Petition for Writ of Certiorari — City of Palestine, Texas, et al., Petitioners v. Union Pacific Railroad Company

No. 24In the

Supreme Court of the United States

CITY OF PALESTINE, TEXAS AND

COUNTY OF ANDERSON, TEXAS,

Petitioners,

v.

UNION PACIFIC RAILROAD COMPANY,

Respondent.

On Petition for a Writ of Certiorari to

the Supreme Court of the State of Texas

PETITION FOR A WRIT OF CERTIORARI

James P. A llison

Counsel of Record

J. Eric Magee

A llison, Bass & Magee, L.L.P.

1301 Nueces Street, Suite 201

Austin, TX 78701

(512) 482-0701

j.allison@allison-bass.com

D. Bryan Hughes

Law Office of

D. Bryan Hughes

110 North College Avenue,

Suite 207

Tyler, TX 75702

Counsel for Petitioners

131260

A

(800) 274-3321 • (800) 359-6859

i

QUESTIONS PRESENTED

1.

W hether the Texas Supreme Cour t er red in

retroactively applying the preemption provisions of

the Interstate Commerce Commission Termination

Act (ICCTA) to a final state court judgment, in conflict

with precedent from this Court and federal circuits.

2.

Whether the retroactive application of the Interstate

Commerce Commission Termination Act to a final

court judgment violates the separation of powers

provision of Section 1 of A rticle 3 of the U.S.

Constitution

Specifically:

Question 1: In upholding the grant of summary

judgment by the Texas Twelfth Court of Appeals, did

the Texas Supreme Court err in retroactively applying

the preemption provisions of the ICCTA in conflict with

decisions by this Court and the Eighth and Ninth Circuit

precedent?

Question 2: Did the retroactive application of the

preemption provisions of the ICCTA to a final court

judgment by the Texas Twelfth Court of Appeals and the

Texas Supreme Court violate the separation of powers

provision of Section 1 of Article 3 of the U.S. Constitution.

ii

PARTIES TO THE PROCEEDING

Petitioners City of Palestine, Texas and County of

Anderson, Texas were the Appellees in the Texas Twelfth

Court of Appeals and Petitioners in the Texas Supreme

Court.

Respondent Union Pacific Railroad Company was

the Appellant in the Texas Twelfth Court of Appeals and

Respondent in the Texas Supreme Court.

Intervenor-Appellees Steve Presley, Jean Mollard,

Ben Campbell, Hugh Summers, Phil Jenkins and Larry

Mayo, referred to as “the Citizens Committee”, were the

Intervenors in the trial court and Appellees in the Texas

Twelfth Court of Appeals.

The style of the case, listed above, correctly reflects

the parties to this proceeding.

iii

STATEMENT OF RELATED CASES

•

Union Pacific Railroad Company v. City of Palestine,

Texas; County of Anderson, Texas, No. 21-40445 (5th

Cir.) (opinion issued and judgment entered July 22,

2022).

•

Union Pacific Railroad Company v. City of Palestine,

et al., No. 6:19-cv-574-JDK (E.D. Tex.) (opinion issued

and final judgment entered March 26, 2021).

Apart from the proceedings directly on review in this

case, there are no other directly related proceedings in

any court.

iv

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDING . . . . . . . . . . . . . . . . ii

STATEMENT OF RELATED CASES . . . . . . . . . . . . iii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . . vi

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . viii

PETITION FOR WRIT OF CERTIORARI . . . . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATUTORY PROVISIONS INVOLVED . . . . . . . . . . 1

INTRODUCTION AND STATEMENT OF

THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Factual Background . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Course of Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . 6

REASONS FOR GRANTING THE PETITION . . . . . 7

v

Table of Contents

Page

SUMMARY OF THE ARGUMENTS MERITING

REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Issue 1: In its decision upholding the Texas

Twelfth Court of Appeals’ grant of summary

judgment, the Texas Supreme Court erred

in apply ing the ICCTA to retroactively

preempt final state court judgments prior to its

enactment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Issue 2: By its decision upholding the summary

judgment for Union Pacific by the Twelfth

Court of Appeals retroactively applying a

statute to vacate a final court judgment, the

Texas Supreme Court violated Section 1 of

Article 3 of the U. S. Constitution . . . . . . . . . . . . . . . 15

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

vi

TABLE OF APPENDICES

Page

APPENDIX A — OPINION AND JUDGMENT

OF THE COURT OF APPEALS OF TEXAS

FOR THE TWELFTH DISTRICT, TYLER,

TEXAS, FILED FEBRUARY 22, 2024 . . . . . . . . . . 1a

A P P E N DI X B — O R D E R D E N Y I N G

P E T I T ION F OR R E V I E W OF T H E

SUPREME COURT OF TEXAS, DATED

SEPTEMBER 6, 2024 . . . . . . . . . . . . . . . . . . . . . . . 30a

A P P E N DI X C — O R D E R D E N Y I N G

MOTION FOR REHEA RING OF THE

SUPREME COURT OF TEXAS, DATED

MARCH 7, 2025 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31a

APPENDIX D — ORDER IN THE DISTRICT

COURT OF 369TH JUDICIAL DISTRICT

CHEROKEE COUNTY, TEXAS, FILED

MAY 15, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32a

A P P EN DI X E — A P P EL L E E S ’ A N D

INTERVENORS’ MOTION FOR REHEARING

IN THE COURT OF APPEALS FOR THE

TWELFTH JUDICIAL DISTRICT, TYLER,

TEXAS, FILED MARCH 8, 2024 . . . . . . . . . . . . . 34a

APPENDIX F — MOTION FOR REHEARING

OF THE SUPREME COURT OF TEXAS,

FILED SEPTEMBER 23, 2024 . . . . . . . . . . . . . . . 54a

vii

Table of Appendices

Page

APPENDIX G — PETITION FOR REVIEW

OF THE SUPREME COURT OF TEXAS,

FILED MAY 2, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . 64a

viii

TABLE OF CITED AUTHORITIES

Cases

Page

City of Palestine v. United States,

559 F.2d 408 (1977, pet. denied) . . . . . . . . . . . . . . 5, 14

Hughes Aircraft Co. v. United States,

520 U.S. 939, 117 S. Ct. 135,

138 L. Ed. 2d 135 (1997) . . . . . . . . . . . . . . 10, 11, 12, 13

INS v. Chadha,

462 U.S. 919 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Int’l & G.N. Ry. Co. v. Anderson County,

246 U.S. 424, 38 S. Ct. 370,

62 L. Ed. 807 (1918) . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4

Int’l & G.N. Ry. Co. v. Anderson County,

150 S.W. 239 (Tex. Civ. App.—Galveston 1912) . . . . . 4

Langraf v. U.S. Film Products,

511 U.S. 244, 114 S. Ct. 1483,

128 L. Ed. 2d 229 (1994) . . . . . . . . . 9, 10, 11, 12, 14, 15

Martin v. Hadix,

527 U.S. 343, 119 S. Ct. 1998,

144 L. Ed. 347 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Massachusetts v. Mellon,

262 U.S. 447 (1923) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

ix

Cited Authorities

Page

Missouri Pac. R. Co. v. City of Palestine, Tex.,

435 U.S. 950, 98 S. Ct. 1576,

55 L. Ed. 2d 800 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . 5

Owner-Operator Indep. Drivers Ass’n, Inc. v.

Arctic Express, Inc.,

No. 97-CV-750, 2003 WL 21645754

(S.D. Ohio July 11, 2003) . . . . . . . . . . . . . . . . . . . . . . . 13

Owner-Operator Indep. Drivers Ass’n, Inc. v.

New Prime, Inc.,

339 F.3d 1001 (8th Cir. 2003) . . . . . . . . . . . . . . . . 11, 13

Owner-Operator Indep. Drivers Ass’n, Inc. v.

New Prime, Inc.,

541 U.S. 973, 124 S. Ct. 1878,

158 L. Ed. 2d 467 (2004) . . . . . . . . . . . . . . . . . . . . . . . 13

Patchak v. Zinke,

583 U.S. 244, 138 S. Ct. 897,

200 L. Ed. 2d 92 (2018) . . . . . . . . . . . . . . . . . . . . . . . . 16

Plaut v. Spendthrift Farms, Inc.,

514 U.S. 211 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Rivas v. Rail Delivery Serv., Inc.,

423 F.3d 1079 (9th Cir. 2005) . . . . . . . . . . . . . . . . . . . 14

Tex. Cent. Bus. Lines Corp. v. Midlothian,

669 F.3d 525 (5th Cir. 2012) . . . . . . . . . . . . . . . . . . . . . 5

x

Cited Authorities

Page

Wayman v. Southard,

10 Wheat. 1 (1825) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Constitutional Provisions

U.S. Const. art. III, § 1 . . . . . . . . . . . . . . . . . . . . 1, 3, 8, 15

Statutes

28 U.S.C. § 1257 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

49 U.S. Code § 10102(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

49 U.S. Code § 10501(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Other Authorities

Pub. L. No. 104-88, 109 Stat. 803 (1995) . . . . . . . . . . . . . 5

1

PETITION FOR WRIT OF CERTIORARI

The City of Palestine, Texas, and the County of

Anderson, Texas, petition for a writ of certiorari to review

the judgment of the Texas Supreme Court in this case.

OPINIONS BELOW

The Texas Twelfth Court of Appeals opinion is

reported at and reproduced at App. A. The Texas Supreme

Court denial of petitioner’s petition for review and motion

for rehearing is reproduced at App. B.

JURISDICTION

The Texas Supreme Court denied a timely motion

for rehearing on March 7, 2025. App. B. This Court has

jurisdiction under 28 U.S.C. § 1257.

STATUTORY PROVISIONS INVOLVED

49 U.S. Code § 10102(9) provides in relevant part:

(9)

“transportation” includes—

(A) a locomot ive, ca r, veh icle, vessel,

warehouse, wharf, pier, dock, yard, property,

facility, instrumentality, or equipment of any

kind related to the movement of passengers

or property, or both, by rail, regardless of

ownership or an agreement concerning use; and

(B) ser vices related to that movement,

including receipt, delivery, elevation, transfer in

2

transit, refrigeration, icing, ventilation, storage,

handling, and interchange of passengers and

property; and

49 U.S. Code § 10501(b) provides in relevant part:

(b)

The jurisdiction of the Board over—

(1) transportation by rail carriers, and the

remedies provided in this part 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, is

exclusive. Except as otherwise provided in this

part, 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.

INTRODUCTION AND

STATEMENT OF THE CASE

Over a century ago, the small Texas town of Palestine

staked its fortune and future on the promises of a railroad.

In exchange, the town and its citizens pledged money

and land to the railroad. For over a century, these vested

rights have weathered legal scrutiny in the highest courts

3

in the land1. In 1955, these rights were enshrined in a

state court judgment. Union Pacific voluntarily assumed

the Palestine assets and the obligations of the state court

judgment decades ago.

The Texas Twelfth Court of Appeals decision (upheld

by the Texas Supreme Court) nullifying the 1955 state

court judgment and a century of legal precedent is

significant and substantially important, and, if upheld, will

establish a genuine and current split of authority clouding

the issue of retroactive application of federal statutes

and particularly preemption to final court judgments.

The retroactive application of ICCTA to a final court

judgment will violate the separation of powers provision

of Section 1, Article 3, U.S. Constitution. These errors,

if left uncorrected, will have widespread and immediate

impact on final court judgments throughout the nation.

These court judgments will become subject to preemptive

enactments under ICCTA and other federal statutes.

ICCTA created the Surface Transportation Board

and established the current regulatory system for rail

transportation, a vital national industry. The incorrect

construction of ICCTA by the Texas courts, retroactively

applying the preemption provisions of ICCTA in direct

conflict with precedents from this Court and federal

circuits, will create confusion and uncertainty concerning

the finality of judgments in the state and federal courts

and among the litigants in those courts.

1. Int’l & Great N. Ry. Co. v. Anderson Cty., 246 U.S. 424,

38 S.Ct. 370, 62 L. Ed. 807 (1918).

4

Factual Background

A contractual relationship arose in 1872 when the

Houston & Great Northern Railroad Company (H&GN)

contracted and agreed with the citizens of the City of

Palestine, Texas, to extend its rail line from Houston,

north to Palestine intersecting with a line owned by the

International Railroad Company, to establish a depot in

Palestine, and thereafter keep and maintain, the general

offices, machine shops and round houses of H&GN at

the City of Palestine in consideration of the promise and

agreement by Anderson County to issue interest bearing

bonds and transfer the proceeds to the railroad upon the

completion of the rail line, construction of the depot and

commencement of regular running of cars to the depot.

Int’l & G.N. Ry. Co. v. Anderson County, 150 S.W. 239,

241 (Tex. Civ. App.—Galveston 1912), aff’d, 106 Tex.

60, 156 S.W. 499 (1913). The railroad engaged in several

attempts to avoid its obligations, requiring extensive

litigation. The courts consistently upheld the terms of this

promise and agreement, including this Honorable Court.

See International G.N. Ry. Co. v. Anderson County, 246

U.S. 424, 38 S. Ct. 370, 62 L. Ed. 807 (1917).

Then in 195 4, after the railroad’s successive

bankruptcies, reorganizations, and unsuccessful legal

attacks on the agreement, International and Great

Northern Railroad (I&GN), the City of Palestine,

Anderson County, and the committee representing

the class of citizens of Palestine and Anderson County

executed an Agreement (“The 1954 Agreement”) that

replaced the prior agreements, relieved the railroad from

its obligation to maintain its corporate headquarters

in Palestine and substituted a requirement that the

5

railroad employ a percentage of employees within certain

classifications at Palestine. The validity of this agreement

was upheld by this Court. 2

In 1955, the state district court entered judgment,

modifying the 1914 judgment, relieving the railroad of

its obligation to maintain its headquarters at Palestine in

return for an obligation to maintain a certain proportion of

its employees there. This judgment was not appealed and

became final in thirty days thereafter. The railroad then

attempted to rid itself of its 1954 agreement and the 1955

judgment through an order of the Interstate Commerce

Commission. The Fifth Circuit Court of Appeals denied

this attempt. See City of Palestine v. United States, 559

F.2d 408 (1977, pet. denied).

Nearly seventy-five years passed with uncontested

performance of the 1955 judgment. In 1982, Union Pacific

acquired MoPac. In 1995, Congress passed the ICCTA,

establishing the Surface Transportation Board to regulate

rail carriers and preempting state and local laws that

come within the Board’s jurisdiction. Pub. L. No. 10488, 109 Stat. 803 (1995); Tex. Cent. Bus. Lines Corp. v.

Midlothian, 669 F.3d 525, 530 (5th Cir. 2012).

In 1997, Union Pacific merged with MoPac. Thereafter,

Union Pacific performed the assumed obligations under

the 1955 judgment without further litigation until 2019.

2. The 1954 Agreement was upheld by the Supreme Court in

Missouri Pac. R. Co. v. City of Palestine, Tex., 435 U.S. 950, 98

S. Ct. 1576, 55 L. Ed. 2d 800 (1978)(pet. denied).

6

Course of Proceedings

In 2019, Union Pacific notified its Palestine employees

that it was terminating its operations at Palestine, in

violation of the 1955 judgment. The City of Palestine,

Anderson County, and a citizens committee sought an

order from the state district court to enforce the terms

of the 1955 judgment. The district court entered an

enforcement order, maintaining the employment terms

of the judgment. Union Pacific filed a motion to vacate

the 1955 judgment.

Union Pacific and Palestine and Anderson County

filed motions for summary judgment. The district court

granted the Palestine and Anderson County motion and

denied the Union Pacific motion. Union Pacific appealed

the district court’s grant of summary judgment for

Palestine and Anderson County and the denial of its

motion to the Texas Twelfth Court of Appeals.

On February 22, 2024, in a published opinion, the

Texas Twelfth Court of Appeals reversed the summary

judgment for Palestine and Anderson County and granted

summary judgment for Union Pacific. Palestine and

Anderson County filed a petition for review by the Texas

Supreme Court, which was denied. On March 7, 2025,

the Texas Supreme Court denied Petitioners’ request for

rehearing. Thus, this Petition is timely if filed by June 5,

2025.

7

REASONS FOR GRANTING THE PETITION

The Texas Twelfth Court of Appeals and Texas

Supreme Court incorrectly decided important questions

of first impression within the state and federal courts,

contrary to prior precedents: 1) whether Congress

intended the enactment of the Interstate Commerce

Commission Termination Act (“ICCTA”) to retroactively

preempt a final state court judgment and whether a

retroactive application of ICCTA to vacate a final court

judgment violates the separation of powers provisions of

the U.S. Constitution. This Court has long established

precedent against the retroactive application of statutes

to impair vested rights and the retroactive application

of statutes to overturn final court judgments. Federal

Circuits have considered and rejected the retroactive

application of ICCTA to contracts executed before the

enactment of the statute. Although these issues were

briefed and presented to the Texas courts, the decisions

below ignored these precedents and retroactively applied

the provisions of ICCTA to vacate a 1955 final judgment.

With no evidence or analysis to support that Congress

intended a retroactive application of ICCTA to prior state

court judgments or whether such retroactive application

will violate the separation of powers, the Texas court

decision impermissibly obviates the substantial rights

enshrined in a final state court judgment decades prior to

contemplation of the ICCTA, create a substantial conflict

with direct precedent in the Eighth and Ninth Circuits,

and unconstitutionally infringe upon the powers of the

judiciary.

8

SUMMARY OF THE ARGUMENTS

MERITING REVIEW

Issue 1: In its decision upholding the Texas Twelfth

Court of Appeals’ grant of summary judgment, the

Texas Supreme Court erred in applying the ICCTA to

retroactively preempt a final state court judgment entered

prior to its enactment.

Issue 2: In its decision upholding the Texas Twelfth Court

of Appeals’ grant of summary judgment retroactively

vacating a final court judgment, the Texas Supreme Court

violated the separation of powers provision of Section 1 of

Article 3 of the U.S. Constitution.

ARGUMENT

Issue 1: In its decision upholding the Texas Twelfth

Court of Appeals’ grant of summary judgment, the

Texas Supreme Court erred in applying the ICCTA to

retroactively preempt final state court judgments prior

to its enactment.

The Texas court decision holds that the ICCTA

retroactively preempted a pre-existing final state court

judgment.

The decision by the Texas courts divest the Petitioners

and their citizens of established rights under a final

judgment by imposing a retroactive application of the

ICCTA which is unsupported by any precedent and

contrary to precedent of this Court and two federal

circuits. Absent the retroactive application of ICCTA,

Respondent Union Pacific has asserted no basis to

9

challenge the provisions of the 1955 final state court

judgment.

When reviewing the issue of retroactive or retrospective

application of a statute, there is a presumption against

retroactivity. Martin v. Hadix, 527 U.S. 343, 119 S. Ct.

1998, 144 L. Ed. 347 (1999) The principles for determining

an impermissible retroactive effect have been long

established. Langraf v. U.S. Film Products, 511 U.S. 244,

265-266, 114 S. Ct. 1483, 128 L. Ed. 2d 229 (1994). Writing

for the Court, Justice Stevens outlined the principles

against retroactive application: “As Justice Scalia has

demonstrated, the presumption against retroactive

legislation is deeply rooted in our jurisprudence, and

embodies a legal doctrine centuries older than our

Republic. Elementary considerations of fairness dictate

that individuals should have an opportunity to know what

the law is and to conform their conduct accordingly; settled

expectations should not be lightly disrupted. For that

reason, the principle that the legal effect of conduct should

ordinarily be assessed under the law that existed when

the conduct took place has timeless and universal appeal.

In a free, dynamic society, creativity in both commercial

and artistic endeavors is fostered by a rule of law that

gives people confidence about the legal consequences of

their actions.” (internal citations and quotations omitted)

Id. at 265-66.

The protection of vested rights is a significant factor

in the evaluation of retroactive application of statutes. The

impairment of existing rights, such as a final judgment, by

a statute implicates the presumption of an impermissible

retroactivity. “Instead, the ban on retrospective legislation

embraced all statutes, which, though operating only from

10

their passage, affect vested rights and past transactions.

Upon principle, Justice Story elaborated, every statute,

which takes away or impairs vested rights acquired

under existing laws, or creates a new obligation, imposes

a new duty, or attaches a new disability, in respect to

transactions or considerations already past, must be

deemed retrospective….” Id. at 268-69. The presumption

against statutory retroactivity is particularly significant

when provisions affect contractual or property rights,

“matters in which predictability and stability are of prime

importance.” Id. at 271.

The need for predictability and stability is paramount

when considering applying a subsequent legislative

enactment to vacate an existing final court judgment.

Vacating a final judgment that assures continuing

employment will certainly impair the vested rights of

Petitioners acquired under existing laws, previously

upheld by the courts, and “impose new duties with respect

to transactions already completed”. Id. at 280.

Nothing in the record suggests a clear intent by

Congress that ICCTA should be applied retroactively,

and federals courts have held to the contrary. The Texas

court opinion provides no analysis or basis justifying

the retroactive application of the ICCTA to a final

judgment. The issue of retroactive application was raised

by Petitioners at both the Twelfth Court of Appeals and

the Texas Supreme Court. See Appendix C, D, and E.

The record clearly reflects that the 1955 Judgment was

entered long before the contemplation and adoption of the

ICCTA. “The Supreme Court has frequently noted that

there is a ‘presumption against retroactive legislation

[that] is deeply rooted in our jurisprudence.”’ Hughes

11

Aircraft Co. v. United States, 520 U.S. 939, 117 S. Ct. 135,

138 L. Ed. 2d 135.Courts should be reluctant to disrupt

settled expectations or alter the legal consequences of

past actions. Landgraf, 511 U.S. at 265-66.

This issue of the potential retroactive effect of

ICCTA on contracts was explicitly decided soon after its

enactment in both the Eighth and Ninth Circuits, which

specifically held that there is no evidence that Congress

intended for the ICCTA to apply to pre–1996 contracts,

and that this lack of standing deprived the district courts

of jurisdiction. First, the Eighth Circuit ruled against

retroactive application to pre-existing contracts in OwnerOperator Indep. Drivers Ass’n, Inc. v. New Prime, Inc.,

holding that:

“[A] presumption against retroactive legislation

is deeply rooted in our jurisprudence.” Landgraf

v. USI Film Prods., 511 U.S. 244, 265, 114 S.Ct.

1483, 128 L.Ed.2d 229 (1994) (citation omitted).

The rationale for this presumption is that

“[e]lementary considerations of fairness dictate

that individuals should have an opportunity

to know what the law is and to conform

their conduct accordingly.” Id. As such, the

Supreme Court has provided a framework for

determining when a federal statute applies

to conduct predating the statute’s enactment.

First, a court must determine if Congress

has expressly prescribed the statute’s proper

reach. Id. at 280, 114 S.Ct. 1483. If Congress

has prescribed the reach, “there is no need to

resort to judicial default rules.” Id. If not, a

court must examine whether the statute would

12

have a retroactive effect; i.e., “whether it would

impair rights a party possessed when he acted,

increase a party’s liability for past conduct, or

impose new duties with respect to transactions

already completed.” Id. If the statute would

do any of these things, the presumption is

that the statute does not govern, absent clear

congressional intent otherwise. Id.

With regard to the ICCTA, Congress has

not expressly prescribed the statute’s reach.

Therefore, we must proceed to the second step:

whether application of the statute in this case

would have a retroactive effect. We agree with

the district court that private rights of action

for damages based on the ICCTA are limited to

actions involving agreements executed after the

ICCTA’s effective date; otherwise, the statute

has a retroactive effect.

Prior to the ICCTA, only the ICC could

bring claims against motor carriers for failure

to comply with the applicable regulations. The

ICCTA shifts this power and permits individual

Owner–Operators to bring defendants directly

into court. We find that this creates an

impermissible retroactive effect.

This issue is analogous to the issue presented

in Hughes Aircraft Co. v. United States, 520

U.S. 939, 117 S.Ct. 1871, 138 L.Ed.2d 135

(1997), in which the Supreme Court held that

when a statute expanded the class of plaintiffs

who could bring claims, the statute altered the

defendant’s substantive rights and therefore

13

had a retroactive effect. Id. at 950, 117 S.Ct.

1871 (“In permitting actions by an expanded

universe of plaintiffs with different incentives,

the [new statute] essentially creates a new cause

of action, not just an increased likelihood that

an existing cause of action will be pursued.”)

(citation omitted). Here, by permitting Owner–

Operators to bring their own actions against

motor carriers, the ICCTA expands the class

of plaintiffs who could bring claims, thereby

altering the motor carriers’ substantive rights.

But see Owner-Operator Indep. Drivers Ass’n,

Inc. v. Arctic Express, Inc., No. 97-CV-750,

2003 WL 21645754 (S.D.Ohio July 11, 2003).

Owner-Operator Indep. Drivers Ass’n, Inc. v. New Prime,

Inc., 339 F.3d 1001, 1006-07 (8th Cir. 2003). Consequently,

the New Prime Petitioners’ Petition for writ of certiorari

to the United States Supreme Court was denied. See

Owner-Operator Indep. Drivers Ass’n, Inc. v. New Prime,

Inc., 541 U.S. 973, 124 S. Ct. 1878, 158 L. Ed. 2d 467 (2004).

The Ninth Circuit then quickly followed this precedent,

also holding that the ICCTA could only preempt contracts

executed after its enactment, reasoning that,

We find persuasive New Prime’s conclusion

that in this case, as in Hughes, retroactively

expanding the universe of potential plaintiffs

would have an impermissible retroactive effect.

Because application of the ICCTA to pre–1996

ag reements would increase Defendants’

potential liability, the statute has a retroactive

effect. See New Prime, 339 F.3d at 1007. In the

absence of evidence of congressional intent to

14

create such an effect, we apply a presumption

that the statute does not operate retroactively.

See Landgraf, 511 U.S. at 280, 114 S.Ct. 1483.

Because there is no evidence that Congress

intended for the ICCTA to apply to pre–1996

contracts, we hold that ICCTA’s private right

of action for damages applies only to contracts

executed after its enactment.

Rivas v. Rail Delivery Serv., Inc., 423 F.3d 1079, 1084-85

(9th Cir. 2005).

These decisions holding that ICCTA does not apply

retroactively to contracts are instructive. If the statute

does not retroactively apply to contracts, it would be

absurd to apply its provisions retroactively to vacate a

final state court judgment.

Though it fails to identify any statutory language

suggesting Congress’ intent, the Texas decision grants

preemption of a 1955 Judgment entered 40 years prior to

the existence of the ICCTA. The 1955 Judgment, like the

1954 Agreement was valid and enforceable at the time of

its execution, and was upheld in City of Palestine, Tex. v.

United States, 559 F.2d 408, 415 (1977). For many years,

the parties have relied upon the terms of the judgment

and had the full opportunity to know the law and conform

their conduct accordingly. A retroactive application of

the ICCTA to the 1955 Judgment will alter Petitioners’

substantive rights, relieve the railroad of its assumed

obligations, and create a new cause of action that did not

exist prior to enactment. The Texas court decision in this

case to retroactively apply the preemption provisions of

the ICCTA to preempt the 1955 Judgment, if upheld by

this Court, would undoubtedly create a severe departure

15

from the doctrine of finality of judgments and a split of

authority between the state courts and the federal circuits.

Thus, this Court should grant review to examine this issue

and correct this improper construction of the law.

Issue 2: By its decision upholding the summary

judgment for Union Pacific by the Twelfth Court of

Appeals retroactively applying a statute to vacate a

final court judgment, the Texas Supreme Court violated

Section 1 of Article 3 of the U. S. Constitution.

The Twelfth Court of Appeals and the Texas Supreme

Court retroactively applied the provisions of ICCTA to

vacate a final court judgment. Although briefed by the

Petitioners, the Texas courts performed no analysis and

failed to apply U. S. Supreme Court precedent to this

issue. Without reviewing Langraf or any other Supreme

Court precedent, the Texas court erroneously determined

that federal preemption applies to a final court judgment.

See Appendix A, pp. 10-14. This decision to preempt a final

court judgment based upon the retroactive application

of a statute violates the separation of powers provision

of the U. S. Constitution. The Constitution creates three

branches of government and vests each branch with a

different type of power. See Art. I, §1; Art. II, §1, cl.

1; Art. III, §1. ‘To the legislative department has been

committed the duty of making laws; to the executive the

duty of executing them; and to the judiciary the duty of

interpreting and applying them in cases properly brought

before the courts. Massachusetts v. Mellon, 262 U.S.

447, 488 (1923); see also Wayman v. Southard, 10 Wheat.

1, 46 (1825) (Marshall, C. J.) (‘[T]he legislature makes,

the executive executes, and the judiciary construes the

law’). By vesting each branch with an exclusive form of

16

power, the Framers kept those powers separate. See INS

v. Chadha, 462 U.S. 919, 946 (1983).” Patchak v. Zinke,

583 U.S. 244, 249-250, 138 S. Ct. 897, 904, 200 L. Ed. 2d

92 (2018).

This Court has previously addressed the issue of a

statutory attempt to reopen final judgments. In Plaut v.

Spendthrift Farms, Inc., 514 U.S. 211 (1995), the Court

held that a statute that requires that a final judgment be

reopened violates the separation of powers clause. The

reasoning in Plaut is directly applicable to the present

case. “When retroactive legislation requires its own

application in a case already finally adjudicated, it does

no more and no less that ‘reverse a determination once

made, in a particular case’” Id. at 225 (quoting Federalist

No. 81 at 545). Especially as it respects the adjudication

upon the rights of private parties that have passed into

judgment, the right becomes absolute, and it is the duty

of the court to enforce it. Id. at 226. “The prohibition

is violated when an individual judgment is legislatively

rescinded for even the very best of reasons….” Id. at 229.

Attempts to retroactively apply a statute to vacate a final

judgment are rare. As noted by Justice Scalia in Plaut:

We know of no previous instance in which

Congress has enacted retroactive legislation

requiring an Article III court to set aside

a final judgment, and for good reason. The

Constitution’s separation of legislative and

judicial powers denies it the authority to do so.

Section 27 A(b) is unconstitutional to the extent

that it requires federal courts to reopen final

judgments entered before its enactment.

Id. at 240.

17

Unfortunately, the Texas courts in this case have

reached an unconstitutional result by retroactively

applying the federal ICCTA statute to vacate a final

judgment that established the rights of the parties over

70 years ago. This result violates the vested rights of the

parties and would obviate the ability to rely upon any

final judgment in the future. This mis-application of the

preemption doctrine to a final court judgment must be

corrected. “Good fences make good neighbors.” Id. The

power of the judiciary cannot be assigned to the legislative

branch. Final judgments must remain final.

The Supreme Court should therefore grant this

petition for writ of certiorari, resolve the conflict between

the Texas decision and the precedents of this Court and

the federal circuits, correct the Texas courts’ erroneous

holding in this case and remand for a proper construction

of the federal statutes.

18

CONCLUSION

For the foregoing reasons, the Court should grant a

writ of certiorari.

Respectfully submitted,

James P. A llison

Counsel of Record

J. Eric Magee

A llison, Bass & Magee, L.L.P.

1301 Nueces Street, Suite 201

Austin, TX 78701

(512) 482-0701

j.allison@allison-bass.com

D. Bryan Hughes

Law Office of

D. Bryan Hughes

110 North College Avenue,

Suite 207

Tyler, TX 75702

Counsel for Petitioners

APPENDIX

i

TABLE OF APPENDICES

Page

APPENDIX A — OPINION AND JUDGMENT

OF THE COURT OF APPEALS OF TEXAS

FOR THE TWELFTH DISTRICT, TYLER,

TEXAS, FILED FEBRUARY 22, 2024 . . . . . . . . . . 1a

A P P E N DI X B — O R D E R D E N Y I N G

P E T I T ION F OR R E V I E W OF T H E

SUPREME COURT OF TEXAS, DATED

SEPTEMBER 6, 2024 . . . . . . . . . . . . . . . . . . . . . . . 30a

A P P E N DI X C — O R D E R D E N Y I N G

MOTION FOR REHEA RING OF THE

SUPREME COURT OF TEXAS, DATED

MARCH 7, 2025 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31a

APPENDIX D — ORDER IN THE DISTRICT

COURT OF 369TH JUDICIAL DISTRICT

CHEROKEE COUNTY, TEXAS, FILED

MAY 15, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32a

A P P EN DI X E — A P P EL L E E S ’ A N D

INTERVENORS’ MOTION FOR REHEARING

IN THE COURT OF APPEALS FOR THE

TWELFTH JUDICIAL DISTRICT, TYLER,

TEXAS, FILED MARCH 8, 2024 . . . . . . . . . . . . . 34a

APPENDIX F — MOTION FOR REHEARING

OF THE SUPREME COURT OF TEXAS,

FILED SEPTEMBER 23, 2024 . . . . . . . . . . . . . . . 54a

ii

Table of Appendices

Page

APPENDIX G — PETITION FOR REVIEW

OF THE SUPREME COURT OF TEXAS,

FILED MAY 2, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . 64a

1a

Appendix AAND JUDGMENT

APPENDIX A — OPINION

OF THE COURT OF APPEALS OF TEXAS FOR

THE TWELFTH DISTRICT, TYLER, TEXAS,

FILED FEBRUARY 22, 2024

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

NO. 12-23-00152-CV

UNION PACIFIC RAILROAD COMPANY,

Appellant,

v.

ANDERSON COUNTY, et al.,

Appellees.

Appeal from the 369th Judicial District Court

Cherokee County, Texas

February 22, 2024, Opinion Delivered

OPINION

Union Pacific Railroad Company appeals the trial

court’s granting of summary judgment in favor of

Anderson County and the City of Palestine and denying

its motion for summary judgment and motion to dismiss.

Union Pacific presents five issues on appeal. We reverse

and render.

2a

Appendix A

Background

The background of this case spans 150 years, and

much of it is not in dispute. It has been discussed at length

in prior federal court opinions; however, we recount it

here to illuminate the intersection between the parties’

purported contractual agreements and increased federal

regulation of the railroad system.

The 1872 Original Agreement

In the 1870s, during the boom of westward railroad

expansion following the Civil War, small towns competed

for railroad depots and stops as essential parts of their

continued economic power and survival. One of these towns

was Palestine, Texas. Palestine was uniquely positioned

to serve as the crossroads between the International

Railroad, approaching Palestine from Hearne, Texas

to the southwest, and the Houston and Great Northern

Railroad Company (“HGNR”), approaching Palestine

from Houston to the south. See City of Palestine v. United

States, 559 F.2d 408, 410 (5th Cir. 1977). In 1872, under

the leadership of John H. Reagan, Palestine and Anderson

County raised $150,000 in bonds from their citizens to

finance the railroad. Id. In turn, HGNR agreed to “run[]

cars regularly” to Palestine, construct a depot, and “locate

and establish and forever thereafter keep and maintain”

its “general offices, machine shops and roundhouses” in

Palestine. Id.

In 1873, HGNR merged with the International

Railroad to create the International & Great Northern

3a

Appendix A

Railroad (IGNR). Id. The Texas legislature approved

the merger so long as IGNR assumed “all acts done in

the name of either of the companies,” including HGNR’s

obligations in the 1872 Agreement with Palestine. Id.

Consideration included another $150,000 in bonds and

Palestine’s commitment to construct housing for the IGNR

employees. Id.

1892 and 1911 Foreclosure Sales and 1914 Judgment

Granting Injunctive Relief

In 1892, IGNR’s assets were sold at a foreclosure sale,

but because the purchasers were trustees for IGNR’s

stockholders, Texas courts ultimately classified this as a

mortgage refinancing rather than a bona fide sale. Int’l &

Great N. Ry. Co. v. Anderson Cty. (IGNR IV), 246 U.S.

424, 433, 38 S. Ct. 370, 373, 62 L. Ed. 807 (1918). Thus,

the 1872 Agreement remained in effect. Int’l & Great N.

Ry. Co. v. Anderson Cty. (IGNR III), 174 S.W. 305, 316

(Tex. Civ. App—Texarkana 1915), aff’d, 246 U.S. 424, 38

S. Ct. 370, 62 L. Ed. 807 (1918).

In 1911, IGNR again sold its assets at a foreclosure

sale, this time to outside investors who kept the name of

the company and listed Houston as the new corporate

office. City of Palestine, 559 F.2d at 410-11. However,

because IGNR planned to move its offices, Palestine and

Anderson County successfully sued for an injunction under

the 1872 Agreement to keep IGNR’s “general offices,

machine shops, and roundhouses in Palestine “forever.”

IGNR III, 174 S.W. at 327. This 1914 Judgment was twice

upheld by both the Texas Court of Civil Appeals and the

4a

Appendix A

United States Supreme Court. See id.; see also, IGNR IV,

246 U.S. at 434, 38 S. Ct. 370.

In addressing the impact of the foreclosure, Texas

courts concluded that there was no “irregularity in the

foreclosure proceedings or in the organization of the new

company” that would impute the personal obligations of

the prior company onto the purchaser. Int’l & Great N. Ry.

Co. v. Anderson Cty. (IGNR I), 150 S.W. 239, 250 (Tex. Civ.

App—Galveston 1912), aff’d, Int’l & Great N. Ry. Co. v.

Anderson Cty. (IGNR II), 106 Tex. 60, 156 S.W. 499 (Tex.

1913). Instead, the courts used the general rule that “the

purchaser of a railroad sold under” foreclosure would take

ownership “free from all liability” for indebtedness and

similar personal obligations. IGNR I, 150 S.W. at 250. The

obligation to “maintain its offices, shops and roundhouses

in Palestine” was a “personal obligation that would not

have bound the new company.” City of Palestine, 559

F.2d at 411; see also IGNR I, 150 S.W. at 250 (noting that

the purchaser in a railroad foreclosure obtains property

“free from all mere personal obligations of the former

company,” including a contract “for the establishment and

permanent maintenance of a depot”).

Even though personal contractual obligations typically

do not transfer to the purchaser in a foreclosure sale,

Texas state courts nonetheless concluded that the Texas

Office Shops Act changed this calculus, and the purchaser

was thus “liable to perform the public duties imposed

by law upon the old corporation.” IGNR II, 156 S.W. at

503 (internal quotations omitted). The Office Shops Act

required a railroad such as IGNR to “keep and maintain

5a

Appendix A

its general offices at such place within this state where it

shall have contracted or agreed” and “said location shall

not be changed” even during consolidation if the railroad

was “aided . . . by an issue of bonds in consideration of such

location.” City of Palestine, 559 F.2d at 411 (quoting Tex.

Rev. Civ. Stat. art. 6423 (1911)).

In short, the Texas courts held that the 1889 Office

Shops Act mandated the transfer of IGNR’s personal

obligation to remain in Palestine to the new purchaser.

IGNR I, 150 S.W. at 251 (noting that the requirement

was not “a mere personal obligation of that company, but

was an obligation or duty imposed by law” that could not

be disavowed in a foreclosure sale, even to a bona fide

purchaser). The Texas Court of Civil Appeals stated that

the 1914 Judgment was “entirely dependent upon the

statute, and not the enforcement of a private contract as

such, for its vitality.” IGNR III, 174 S.W. at 316.

IGNR appealed to the United States Supreme Court,

arguing that the Office Shops Act impermissibly burdened

interstate commerce and contractual obligations. IGNR

IV, 246 U.S. at 428, 38 S. Ct. 370. The Supreme Court

disagreed and noted that the new IGNR “took out a

charter under general laws that expressly subjected it to

the limitations imposed by law.” Id. at 432, 38 S. Ct. 370.

1954 Agreement and 1955 Judgment Modifying 1914

Judgment

Later, in the 1920s, Missouri Pacific (MoPac)

purchased IGNR. City of Palestine, 559 F.2d at 412. In

6a

Appendix A

the 1930s, MoPac filed for bankruptcy and requested

reorganization under the Bankruptcy Act. Id. As part

of its proposed reorganization, MoPac stated it would

consolidate with its subsidiaries, including IGNR. Id. But

because the 1914 Judgment required IGNR to maintain

its general offices in Palestine, and MoPac’s offices were

located elsewhere, this posed a serious problem. Id.

The Bankruptcy Act also included the following

requirement, which, in essence, required continued

enforcement of the 1914 Judgment:

No reorganization effected under this title

and no order of the court or Commission in

connection therewith shall relieve any carrier

from the obligation of any final judgment of

any Federal or State court rendered prior

to January 1, 1929, against such carrier

or against one of its predecessors in title,

requiring the maintenance of offices, shops,

and roundhouses at any place, where such

judgment was rendered on account of the

making of a valid contract or contracts by such

carrier or one of its predecessors in title.

Id. (citing 11 U.S.C. § 205(n) (1970) (emphasis added)).

Given these difficulties, the bankruptcy court

requested that MoPac negotiate with Palestine and

Anderson County to modify the 1914 Judgment before

it would approve the reorganization. Id. As a result of

these negotiations, MoPac “agreed to forever maintain

7a

Appendix A

in Palestine 4.5% of all of its employees in certain job

classifications,” but it did not have to “maintain its general

offices, shops and roundhouses in Palestine.” Id. (the 1954

Agreement). MoPac agreed that as long as it or “any

successor in interest or assign thereof shall remain in the

railroad business,” it would maintain “Office and Shop

Employees” in Palestine. A group of ten local citizens (the

Palestine Citizens Committee) signed the 1954 Agreement

along with MoPac, Palestine, and Anderson County.

In 1955, the District Court of Cherokee County, Texas,

entered a judgment (the 1955 Judgment) that modified

the 1914 Judgment to align with the 1954 Agreement’s

terms, and the bankruptcy court approved the proposed

reorganization. Id.

Union Pacific Acquires MoPac, Assumes Operations in

Palestine; Texas Repeals Office Shops Act

Approximately three decades passed, and in 1982,

Union Pacific first acquired MoPac, and they subsequently

merged. In 1995, Congress passed the Interstate

Commerce Commission Termination Act (ICCTA) which

established the Surface Transportation Board (STB) to

regulate rail carriers and preempted various state and

local laws that were within the STB’s jurisdiction. 49

U.S.C. § 10501(b). In 2007, Texas repealed its Office Shops

Act after determining the ICCTA preempted it. See H.R.

Rep. 80-3711, Reg. Sess. at 1 (Tex. 2007).

With automatic adjustments from subsequent

mergers, Union Pacific must maintain 0.52% of its

8a

Appendix A

“Office and Shop” employees in Palestine. Under the 1954

Agreement, these employees can be “Executives, Officials

and Staff Assistants; Professional, Clerical, and General;

Maintenance of Equipment and Stores; Transportation

(other than Train, Engine and Yard); Transportation

(Yardmasters, Switch Tenders, and Hostlers).” These

employees fall into two categories: (1) “the freight claims

department, which investigates and resolves claims

arising out of shipments on Union Pacific’s rail line,” and

(2) “the car shop, which repairs cars in Union Pacific’s

fleet.”

Procedural History

In November 2019, Union Pacific filed suit in federal

court seeking declaratory relief that the ICCTA preempts

the 1954 Agreement. Union Pacific also sought an

injunction preventing Palestine and Anderson County

from enforcing the Agreement. See Union Pacific

Railroad Co. v. City of Palestine, 517 F. Supp. 3d 609,

618 (E.D. Tex. 2021).

Palestine and Anderson County filed a motion to

dismiss and a motion for judgment on the pleadings. Id.

The motions were based on the Anti-Injunction Act and

the failure to join the Palestine Citizens Committee—the

ten local citizens who signed the 1954 Agreement. Id. The

district court denied these motions. Id.

Union Pacific filed a motion for summary judgment,

which the district court granted, holding that the 1954

Agreement was expressly and impliedly preempted. Id.

9a

Appendix A

at 625-31. It also concluded that the 1954 Agreement did

not meet the voluntary contract exception to preemption.

Id. at 631-33. The district court enjoined Palestine and

Anderson County from enforcing the 1954 Agreement

against Union Pacific.

Defendants appealed the district court’s grant of

summary judgment for Union Pacific and the denials of

their motion to dismiss for failure to join a necessary

party, motion for judgment on the pleadings, and crossmotion for summary judgment to the Fifth Circuit. See

Union Pacific Railroad Co. v. City of Palestine, 41

F.4th 696, 703 (5th Cir. 2022). The Fifth Circuit likewise

determined the 1954 Agreement was preempted by the

ICCTA and held that Union Pacific is “free to leave”

Palestine. Id. at 700.

After the district court entered judgment, and while

the case was on appeal to the Fifth Circuit, Palestine and

Anderson County filed suit in Texas state court seeking

to enforce the 1955 Judgment which had approved the

1954 Agreement. Union Pacific filed a cross-petition and

motion to vacate the 1955 Judgment. On July 15, 2021, the

trial court granted the City’s and County’s request for

temporary relief and ordered Union Pacific to continue to

comply with “the reporting and employment requirements

imposed by the 1955 Judgment and its terms until further

orders of this Court.” The parties filed cross-motions for

summary judgment regarding the continuing validity of

the 1955 Judgment. Union Pacific argued that collateral

estoppel and preemption barred enforcement of the

1955 Judgment. While Palestine and Anderson County

10a

Appendix A

contended collateral estoppel and preemption did not

apply, Union Pacific failed to plead a sufficient change in

circumstances to warrant dissolving the 1955 Judgment,

and Union Pacific’s claim was barred by laches. After the

Fifth Circuit ruled, Union Pacific filed motions to dissolve

or modify the trial court’s July 2021 injunction. Palestine

and Anderson County responded and filed a plea to the

jurisdiction, arguing that the trial court lacked jurisdiction

to modify or dissolve the 1955 Judgment. Meanwhile, a

group purporting to be the “Citizens Committee” filed a

notice of intervention, which Union Pacific moved to strike.

Ultimately, the trial court granted Palestine’s and

Anderson County’s motion for summary judgment,

granted the plea to the jurisdiction, denied Union Pacific’s

motion for summary judgment, and denied the motions to

vacate the 1955 Judgment and the July 2021 injunction.

The court also denied Union Pacific’s motion to strike the

notice of intervention. This appeal followed.

Jurisdiction

As a preliminary matter, we address Palestine’s and

Anderson County’s motion to dismiss. In their motion,

they assert this Court lacks jurisdiction because there

is no appealable order. They further urge that we lack

jurisdiction because the original judgment is not an

injunction.

Final Appealable Order

A judgment issued without a conventional trial is final

for purposes of appeal if, and only if, it actually disposes

11a

Appendix A

of all claims and parties then before the court, regardless

of its language, or it states with unmistakable clarity that

it is a final judgment as to all claims and all parties. See

Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex.

2001); In re Certain Underwriters at Lloyd’s London,

No. 01-09-00851-CV, 2010 Tex. App. LEXIS 393, 2010

WL 184300, at *2 (Tex. App—Houston [1st Dist.] 2010,

orig. proceeding) (mem. op.). If a judgment disposes of all

parties and claims, based on the record in the case, it is a

final judgment, regardless of its language. See Lehmann,

39 S.W.3d at 200. Even if an order or judgment does not

finally dispose of all remaining parties and claims, express

language of finality can make it final, even though it should

have been interlocutory. Id. But an order does not dispose

of all claims and all parties merely because it is entitled

“final,” or because the word “final” appears elsewhere in

the order, or even because it awards costs. Id. at 205.

Here, the trial court entered four written orders on

May 15, 2023. By those orders, the trial court denied

Union Pacific’s motion for summary judgment, denied

Union Pacific’s motion to vacate and granted Palestine’s

and Anderson County’s plea to the jurisdiction, denied

Union Pacific’s plea to the jurisdiction and motion to

strike the intervention, and granted Anderson County’s

and Palestine’s motion for summary judgment. These

orders disposed of all pending claims by the parties. In

their motion to dismiss, Palestine and Anderson County

neglect the ruling on their motion for summary judgment

and argue that the other three orders do not dispose of

all claims. However, because the trial court also granted

Palestine’s and Anderson County’s motion for summary

12a

Appendix A

judgment, all pending claims have been disposed and there

is a final, appealable order. See id. at 205. We overrule the

motion to dismiss.

Injunction

Palestine and Anderson County further urge this

Court lacks jurisdiction because the 1955 Judgment is not

an injunction. As a result, they contend the trial court’s

plenary power expired and this Court lacks jurisdiction to

vacate the judgment. In its third issue, Union Pacific urges

that the trial court maintained continuing jurisdiction to

dissolve the injunction. We agree with Union Pacific.

A court granting a permanent injunction may retain

jurisdiction to change, alter or modify it depending upon

the facts and circumstances subsequently shown to change

the reason for the granting of equitable relief. Fuller v.

Walter E. Heller & Co., 483 S.W.2d 348, 351 (Tex. App.—

Dallas 1972, no writ). This is an exception to the general

rule that the trial court’s plenary power expires thirty

days after the signing of a judgment. See Tex. R. Civ. P.

329b(d).

At its core, an injunction is a court order commanding

or preventing an action. Black’s Law Dictionary (11th ed.

2019). The 1955 Judgment commands Union Pacific to

remain in Palestine perpetually. It concerns a continuing

situation that carries the continuing right of the trial court

to change, alter, or modify the decree upon a showing

of changed conditions or circumstances. See Fuller, 483

S.W.2d at 351 (distinguishing City of Tyler v. St. Louis

13a

Appendix A

Sw. Ry. Co. of Tex., 405 S.W.2d 330 (Tex. 1966)). Therefore,

the 1955 Judgment is an injunction.

Furthermore, Palestine and Anderson County sought

and obtained an injunction against Union Pacific forcing

it to comply with the requirements of the 1955 Judgment.

Therefore, the trial court and this Court have continuing

jurisdiction to vacate such an injunction. See City of Tyler,

405 S.W.2d at 333. We sustain Union Pacific’s third issue.

Summary Judgment

We review traditional motions for summary judgment

de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d

656, 661 (Tex. 2005). To prevail, the movant must show

there are no genuine issues of material fact and that it

is entitled to judgment as a matter of law. Tex. R. Civ. P.

166a(c); Provident Life & Accident Ins. Co. v. Knott, 128

S.W.3d 211, 215-16 (Tex. 2003). If the movant satisfies this

burden, the burden shifts to the nonmovant to provide

evidence that raises a genuine issue of material fact,

thus avoiding summary judgment. See Amedisys, Inc. v.

Kingwood Home Health Care, LLC, 437 S.W.3d 507, 511

(Tex. 2014). When, as here, cross-motions for summary

judgment are filed, we consider each motion and render

the judgment the trial court should have reached. Coastal

Liquids Transp., LP v. Harris Cty. Appraisal Dist.,

46 S.W.3d 880, 884 (Tex. 2001). When, also as here, “a

trial court’s order granting summary judgment does not

specify the ground or grounds relied on for the ruling,

summary judgment will be affirmed on appeal if any of

the theories advanced are meritorious.” Rogers v. Ricane

Enters., Inc., 772 S.W.2d 76, 79 (Tex. 1989).

14a

Appendix A

Collateral Estoppel

In its first issue, Union Pacific urges the case has

previously been litigated in the federal courts and is

thereby barred by collateral estoppel. As a result, it urges

the trial court should have granted its motion for summary

judgment and motion to vacate the 1955 judgment.

Applicable Law

The doctrine of collateral estoppel precludes

relitigation of ultimate issues of fact actually litigated

and essential to the judgment in a prior suit. Getty Oil

Co. v. Ins. Co. of N. Am., 845 S.W.2d 794, 801 (Tex. 1992);

Tarter v. Metro. Sav. & Loan Ass’n, 744 S.W.2d 926, 927

(Tex. 1988). “The term ‘ultimate issue’ does not refer to a

cause of action or a claim.” Tarter, 744 S.W.2d at 928; see

also Haddock v. Gruber, No. 05-16-01113-CV, 2018 Tex.

App. LEXIS 2088, 2018 WL 1417453, at *8 (Tex. App.—

Dallas Mar. 22, 2018, pet. denied) (mem. op.). Collateral

estoppel applies when the party against whom the doctrine

is asserted had a full and fair opportunity to litigate the

issue in the prior suit and lost. See Quinney Elec., Inc.

v. Kondos Entm’t, Inc., 988 S.W.2d 212, 213 (Tex. 1999);

Tarter, 744 S.W.2d at 927. Collateral estoppel is designed

to promote judicial efficiency, protect parties from

multiple lawsuits, and prevent inconsistent judgments by

precluding relitigation of issues. Sysco Food Servs., Inc.

v. Trapnell, 890 S.W.2d 796, 802 (Tex. 1994).

Collateral estoppel can be applied offensively or

defensively. Mann v. Old Republic Nat’l Title Ins. Co.,

15a

Appendix A

975 S.W.2d 347, 351 n.5 (Tex. App.—Houston [14th Dist.]

1998, no pet.). Offensive collateral estoppel is used by a

plaintiff “seeking to estop a defendant from relitigating

an issue which the defendant previously litigated and lost

in a suit involving another party.” Fletcher v. Nat’l Bank

of Commerce, 825 S.W.2d 176, 177 (Tex. App.—Amarillo

1992, no writ). Defensive use of collateral estoppel is the

opposite—that is, the defendant asserts collateral estoppel

as an affirmative defense because the plaintiff previously

litigated the issue and lost. Id. Union Pacific employs the

doctrine defensively.

To invoke collateral estoppel successfully, a party

must establish the following elements: (1) the facts sought

to be litigated in the second action were fully and fairly

litigated in the first action; (2) those facts were essential

to the judgment in the first action; and (3) the parties were

cast as adversaries in the first action. Eagle Props., Ltd.

v. Scharbauer, 807 S.W.2d 714, 721 (Tex. 1990); Mann,

975 S.W.2d at 350. Whether collateral estoppel applies is a

question of law for the court to decide. Spera v. Fleming,

Hovenkamp & Grayson, P.C., 25 S.W.3d 863, 870 (Tex.

App.—Houston [14th Dist.] 2000, no pet.).

To determine whether the facts were fully and fairly

litigated in the first suit, we consider “(1) whether the

parties were fully heard, (2) that the court supported its

decision with a reasoned opinion, and (3) that the decision

was subject to appeal or was in fact reviewed on appeal.”

Mower v. Boyer, 811 S.W.2d 560, 562 (Tex. 1991); Cole v.

G.O. Assocs., Ltd., 847 S.W.2d 429, 431 (Tex. App.-Fort

Worth 1993, writ denied). To determine whether a fact

16a

Appendix A

issue is essential to the judgment, i.e., whether it is an

“ultimate issue,” we look to the factual determinations

made by the trier of fact that are “necessary to form the

basis of a judgment.” Tarter, 744 S.W.2d at 928.

For parties to be cast as adversaries in the first

suit, “it is only necessary that the party against whom

the doctrine is asserted was a party or in privity with a

party in the first action.” Trapnell, 890 S.W.2d at 80102; see Eagle Props., 807 S.W.2d at 721; Tex. Capital

Secs. Mgmt., Inc. v. Sandefer, 80 S.W.3d 260, 264 (Tex.

App.-Texarkana 2002, pet. struck). Whether collateral

estoppel applies depends on the circumstances of the

particular case. HECI Expl. Co. v. Neel, 982 S.W.2d 881,

890 (Tex. 1998); Sandefer, 80 S.W.3d at 265. However,

parties are generally in privity when “(1) they control an

action even if they are not parties to it; (2) their interests

are represented by a party to the action; or (3) they are

successors in interest, deriving their claims through a

party to the prior action.” Neel, 982 S.W.2d at 890 (citing

Benson v. Wanda Petroleum, 468 S.W.2d 361, 362 (Tex.

1971)); Sandefer, 80 S.W.3d at 265. “Privity connotes those

who are in law so connected with a party to the judgment

as to have such an identity of interest that the party to

the judgment represented the same legal right.” Sandefer,

80 S.W.3d at 265 (citing Benson, 468 S.W.2d at 363). The

determination of whether parties are in privity is the

same for both res judicata and collateral estoppel. See

Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 653 (Tex.

1996); Benson, 468 S.W.2d at 363-64.

17a

Appendix A

Analysis

Union Pacific contends that the federal courts have

already determined its obligation is preempted and, as a

result, the enforceability of the 1955 Judgment is barred

by collateral estoppel. However, Anderson County and

Palestine urge that the federal action concerned the

1954 Agreement and not the 1955 Judgment. Union

Pacific claims this distinction is immaterial because the

preemption issue is the same whether discussing the 1954

Agreement or the 1955 Judgment.

The 1955 Judgment adopted, and is practically

identical to, the 1954 Agreement. Both the Eastern

District and the Fifth Circuit explained in lengthy

opinions why Union Pacific’s obligations under the 1954

Agreement are preempted by the ICCTA. The federal

courts’ preemption analysis did not hinge on whether the

obligations imposed on Union Pacific were contained in

a judgment or an agreement. Instead, the preemption

analysis determined whether the substantive obligations

imposed by state law conflict with federal law. Therefore,

even if the causes of action are different in the state

court action, the issues are the same. See BP Auto. LP

v. RML Waxahachie Dodge, LLC, 517 S.W.3d 186, 200

(Tex. App.—Texarkana 2017, no pet.) (citing Johnson &

Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d

507, 521 (Tex. 1998)).

Palestine and Anderson County claim that the

Eastern District judgment states that it does not affect the

1955 Judgment. However, that judgment merely clarified

18a

Appendix A

that the federal district court was not asked to enjoin the

parties from filing any action in state court regarding the

1955 Judgment. This has more to do with the independent

roles of federal and state courts than the enforceability

of the 1955 Judgment. Federal courts do not usually

enjoin state courts from enforcing their judgments.

Therefore, the federal court left all issues regarding the

1955 Judgment, including collateral estoppel, for the state

court’s determination.

The issue before the federal courts was whether

the ICCTA preempts Union Pacific’s obligations under

the 1954 Agreement. The parties were able to brief the

preemption issue on summary judgment before the federal

district court. After hearing oral argument and reviewing

the briefing, the district court issued an extensive opinion

detailing its analysis as to why the 1954 Agreement is

preempted. See generally, Union Pacific RR Co. v. City

of Palestine, 517 F. Supp. 3d 609 (E.D. Tex. 2021). Then,

the district court’s decision was appealed to the Fifth

Circuit, which likewise issued an opinion that the ICCTA

preempts the 1954 Agreement. See generally, Union

Pacific RR Co. v. City of Palestine, Tex., 41 F.4th 696 (5th

Cir. 2022). Therefore, the issue was fully litigated in the

prior suit. See Mower, 811 S.W.2d at 562. This preemption

analysis was the basis for the District Court’s and Fifth

Circuit’s findings that the obligations are unenforceable

and Union Pacific may leave Palestine; therefore, the

facts were essential to the federal court judgments. See

Tarter, 744 S.W.2d at 928. In addition, Union Pacific,

Palestine, Anderson County, and the Citizens Committee

were all parties to the federal case. Therefore, they were

19a

Appendix A

adversaries in both actions. See BP Auto, 517 S.W.3d at

199.

Based on the foregoing, we hold that collateral

estoppel applies to this case. Because the federal courts

determined that Union Pacific’s obligations are preempted

by the ICCTA, the trial court should have granted Union

Pacific’s motion for summary judgment and motion to

vacate the 1955 judgment based on collateral estoppel.

We sustain Union Pacific’s first issue.

Preemption

In its second issue, Union Pacific contends that, if

the issue is not precluded by collateral estoppel, the trial

court should have found that the obligations under the 1955

Judgment are preempted by the ICCTA. Essentially, it

urges that the trial court should have concurred with the

federal courts. We agree and adopt the reasoning of the

Eastern District and Fifth Circuit.

Applicable Law

Any state law that conflicts with either a federal

law or the Constitution is “without effect.” Maryland

v. Louisiana, 451 U.S. 725, 746, 101 S. Ct. 2114, 2128,

68 L.Ed.2d 576 (1981). This framework, known as

preemption, applies in the railroad context where a

state law remedy “invokes laws that have the effect of

managing or governing, and not merely incidentally

affecting, rail transportation.” Franks Inv. Co. LLC v.

Union Pacific R.R. Co., 593 F.3d 404, 411 (5th Cir. 2010)

20a

Appendix A

(citation omitted). In determining whether a state law or

regulation is preempted, Congress’s intent is the “ultimate

touchstone.” Medtronic, Inc. v. Lohr, 518 U.S. 470, 485,

116 S. Ct. 2240, 2250, 135 L.Ed.2d 700 (1996). Congress

can indicate its preemptive intent either expressly,

through a statute’s plain language, or impliedly, through

its “structure and purpose.” Altria Group, Inc. v. Good,

555 U.S. 70, 76, 129 S. Ct. 538, 543, 172 L.Ed.2d 398

(2008). In 1995, Congress enacted key legislation known

as the ICCTA which abolished the Interstate Commerce

Commission and established the Surface Transportation

Board to have broad jurisdiction over rail operations. See

49 U.S.C. § 10101, et seq.

The ICCTA essentially overhauled the railroad

industry, which was already historically intertwined with

the federal government: “[R]ailroad operations [have]

long been a traditionally federal endeavor, to better

establish uniformity in such operations and expediency in

commerce, and it appears manifest that Congress intended

the ICCTA to further that exclusively federal effort, at

least in the economic realm.” Friberg v. Kan. City S. Ry.

Co., 267 F.3d 439, 443 (5th Cir. 2001). In response to the

ICCTA, in 2007, the Texas legislature repealed the Office

Shops Acts, concluding it was “preempted by federal law.”

H.R. 80-3711, Reg. Sess. at 1 (Tex. 2007).

Section 10501(b) of the ICCTA evinces the explicit

preemptive intent of Congress, as it describes the STB’s

exclusive jurisdiction over a wide range of railroad

operations:

21a

Appendix A

(b) The jurisdiction of the Board over—

(1) transportation by rail carriers, and the

remedies provided in this part 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,

is exclusive. Except as otherwise provided

in this part, 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.

49 U.S.C. § 10501(b).

Analysis

The Fifth Circuit previously addressed preemption

under the ICCTA, holding that Section 10501(b) expressly

preempts laws that seek to “manag[e] or govern[] rail

transportation” and that “[t]o the extent remedies are

provided under laws that have the effect of regulating

rail transportation, they are [expressly] preempted.”

Franks, 593 F.3d at 410 (emphasis in original). However,

22a

Appendix A

if a state law or regulation only has a “mere remote or

incidental effect on rail transportation,” it is not expressly

preempted. Elam v. Kan. City S. Ry. Co., 635 F.3d 796,

805 (5th Cir. 2011) (internal quotations omitted).

Rail “transportation” is broadly defined to include

“facilit[ies]” and “services” that are “related to the

movement of passengers or property, or both, by rail.” 49

U.S.C. § 10102(9). The Fifth Circuit held that “because

the 1954 Agreement manages and governs facilities

or services related to the movement of passengers or

property by rail, it is expressly preempted.” Union

Pacific, 41 F.4th at 705.

The Fifth Circuit recognized that the 1954 Agreement

requires Union Pacific to employ a certain percentage of

its “Office and Shop Employees” in Palestine. Id. Union

Pacific maintains a car shop and freight claims office to

comply with that agreement. The car shop employees

repair empty freight cars, and the freight claims office

processes complaints and claims for freight damage. “Both

categories include employees who are engaged in ‘services

related to’ the ‘movement [of] property’ by rail.” Id.

Anderson County and Palestine urged that the

employee requirement has no direct impact on the

movement of freight because the employees work on

railcars that are out of service and the shipping claims

employees deal with involve items previously moved by

rail. Id. The court disagreed because the ICCTA does not

require contemporaneous movement of property related to

the rails for the regulation to be preempted. Id. Instead,

23a

Appendix A

the Fifth Circuit opined that if the “facilities or services—

in any non-incidental way—relate to the movement of

property by rail, they are preempted by the ICCTA.” Id.

The rail car repair shop employees work on cars

that were involved in and may later be involved in the

movement of items by rail, and the freight claims office

employees deal with problems that arose while property

traveled by rail. Id. The 1954 Agreement was premised

on now-preempted and repealed Texas law and requires

the continued employ of those individuals; therefore, the

1954 Agreement regulates Union Pacific’s use of railroad

facilities and services. Id.

The Fifth Circuit further opined that the 1954

Ag reement’s mandate that Union Pacif ic cannot

leave Palestine interferes with the STB’s exclusive

jurisdiction over “routes, services, and facilities” and the

“abandonment, or discontinuance of . . . facilities.” Id.; 49

U.S.C. § 10501(b). As a result, the Fifth Circuit concluded

that the Eastern District correctly held that the 1954

Agreement is expressly preempted.

As noted above, the 1955 Judgment mirrors and

memorializes the 1954 Agreement. Applying the federal

courts’ reasoning, the 1955 Judgment’s requirement

that Union Pacific remain in Palestine both regulates

Union Pacific’s use of railroad facilities and services and

interferes with the STB’s jurisdiction over those facilities.

As a result, the 1955 Judgment’s perpetual obligations on

Union Pacific are preempted by the ICCTA. As Justice

Holmes recognized, the “requirement is perpetual until

24a

Appendix A

the law is changed.” IGNR IV, 246 U.S. at 434. Therefore,

the trial court should have granted Union Pacific’s motion

for summary judgment and motion to vacate the judgment

based on preemption. We sustain Union Pacific’s second

issue.

Laches

In its fourth issue, Union Pacific urges that Palestine’s

and Anderson County’s affirmative defense of laches is

barred.1

The defense of laches precludes a plaintiff from

asserting legal rights after an unreasonable delay against

a defendant who changed his position in good faith and to

his detriment because of the delay. Fair v. Arp Club Lake,

Inc., 437 S.W.3d 619, 625 (Tex. App.-Tyler 2014, no pet.);

Weaks v. White, 479 S.W.3d 432, 438 (Tex. App.—Tyler

2015, pet. denied).

Palestine and A nderson County contend they

“detrimentally changed their position” when they assumed

“permanent responsibility for the maintenance of a road

at the request of Union Pacific, continu[ed] to partner with

the railroad in Palestine, and bas[ed] the city and county

financial planning decisions on Union Pacific continuing to

honor its obligations.” They further urge that the twentyfive-year delay was unreasonable and impairs their ability

to defend the claim because the evidence has been lost.

1. Palestine and Anderson County initially raised several

other affirmative defenses including limitations, waiver, equitable

estoppel, and governmental immunity. However, on appeal, they

rely solely on laches.

25a

Appendix A

In support of their argument, Palestine and Anderson

County point to the affidavit testimony of County Judge

Robert Johnson. In his affidavit, Judge Johnson stated

the following:

I was happy to work with the City and the

railroad to attempt to renegotiate the 1954

Agreement in 2015, when Union Pacific was

considering developing the Alcoa property in

the County. At the request of Union Pacific, the

County incorporated a private road adjacent to

UP property into the county road system and

made improvements to it for Union Pacific’s

benefit without consideration. That road is now

permanently part of the County’s road system,

and the County is forever responsible for its

maintenance and has liability for potential

claims and actions thereon.

Union Pacific ended up not developing the Alcoa property.

However, Judge Johnson testified in his deposition that the

road services other properties in the area. Additionally,

the Alcoa plant was outside Palestine city limits, meaning

there were questions as to whether any employment at

that location would fulfill Union Pacific’s obligations under

the 1955 Judgment. Therefore, the evidence does not

support Palestine’s and Anderson County’s argument that

they took over the road in detrimental reliance on Union

Pacific’s promise to comply with the 1955 Judgment’s

obligations.

Anderson County and Palestine also claim they

based “financial planning decisions” on the assumption

26a

Appendix A

that Union Pacific would remain in Palestine. However,

they do not describe or specify what those decisions

were, how they can be attributed to delay, or how they

are detrimental. See Tex. R. A pp. P. 38.1 (parties must

support contention with argument and analysis showing

the record and law).

Palestine and Anderson County further urge Union

Pacific waited twenty-five years after the passage of the

ICCTA to file suit, which constitutes unreasonable delay.

However, in response to the declining demand for coal

reducing its revenue stream, Union Pacific adopted a

new business model in 2018 called “Precision Scheduled

Railroading” (PSR). Maintaining the car shop and

administrative operations in Palestine conflicts with the

PSR principle of maximizing utilization of fewer assets

and minimizing customized arrangements for individual

customers at the expense of overall network efficiency.

Therefore, Union Pacific attempted to set aside its

employment obligations in federal court the next year. As

a result, there is no unreasonable delay.

Because there was neither unreasonable delay nor

detrimental reliance, Palestine and Anderson County did

not establish the affirmative defense of laches. Therefore,

it cannot support the trial court’s granting of summary

judgment in their favor. Further, the laches defense cannot

defeat Union Pacific’s Motion for summary judgment. We

sustain Union Pacific’s fourth issue. 2

2. Because we hold that the trial court should have granted

Union Pacific’s motion for summary judgment and motion to vacate

the 1955 judgment, we need not address Union Pacific’s fifth issue

27a

Appendix A

Disposition

Having sustained Union Pacific’s first, second, third,

and fourth issues, we reverse the trial court’s judgment

and render judgment granting Union Pacific’s motion

for summary judgment and motion to vacate the 1955

Judgment and July 2021 injunction.

/s/ James T. Worthen

Chief Justice

Opinion delivered February 22, 2024.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(PUBLISH)

regarding the propriety of the Citizen Committee’s intervention.

See Tex. R. A pp. P. 47.1.

28a

Appendix A

[SEAL]

COURT OF APPEALS

TWELFTH COURT OF APPEALS

DISTRICT OF TEXAS

JUDGMENT

FEBRUARY 22, 2024

NO. 12-23-00152-CV

UNION PACIFIC RAILROAD COMPANY,

Appellant,

v.

ANDERSON COUNTY, et al.,

Appellees.

Appeal from the 369th Judicial District Court

Cherokee County, Texas

THIS CAUSE came to be heard on the appellate

record and the briefs filed herein, and the same being

considered, because it is the opinion of this court that

there was error in the judgment of the court below, it is

ORDERED, ADJUDGED and DECREED by this court

29a

Appendix A

that the judgment be reversed and judgment rendered

granting Union Pacific’s motion for summary judgment

and motion to vacate the 1955 Judgment and July 2021

injunction. All costs in this cause expended in this court

be, and the same are, hereby adjudged against the

Appellees, ANDERSON COUNTY, ET AL, for which let

execution issue; and that this decision be certified to the

court below for observance.

James T. Worthen, Chief Justice.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

30a

Appendix

B

APPENDIX B — ORDER

DENYING

PETITION

FOR REVIEW OF THE SUPREME COURT OF

TEXAS, DATED SEPTEMBER 6, 2024

RE: Case No. 24-0354

DATE: 9/6/2024

COA #: 12-23-00152-CV

TC#: 2021-060150

STYLE: ANDERSON CNTY v. UNON PACIFIC R.R. CO.

Today the Supreme Court of Texas denied the petition

for review in the above-referenced case.

MR. JAMES P. ALLISON

ALLISON BASS & MAGEE LLP

1301 NUECES ST. STE. 201

AUSTIN, TX 78701

* DELIVERED VIA E-MAIL *

31a

Appendix

C

APPENDIX C — ORDER

DENYING

MOTION FOR

REHEARING OF THE SUPREME COURT OF

TEXAS, DATED MARCH 7, 2025

RE: Case No. 24-0354

DATE: 3/7/2025

COA #: 12-23-00152-CV

TC#: 2021-060150

STYLE: ANDERSON CNTY v. UNON PACIFIC R.R. CO.

Today the Supreme Court of Texas denied the motion

for rehearing of the above-referenced petition for review.

MR. JAMES P. ALLISON

ALLISON BASS & MAGEE LLP

1301 NUECES ST. STE. 201

AUSTIN, TX 78701

* DELIVERED VIA E-MAIL *

32a

D THE DISTRICT

APPENDIX D — Appendix

ORDER IN

COURT OF 369TH JUDICIAL DISTRICT

CHEROKEE COUNTY, TEXAS,

FILED MAY 15, 2023

IN THE DISTRICT COURT OF 369TH JUDICIAL

DISTRICT, CHEROKEE COUNTY, TEXAS

CAUSE NO. 2021-060150

(No. 6415)

ANDERSON COUNTY, et al.,

v.

INTERNATIONAL & GREAT NORTHERN

RAILWAY COMPANY; UNION PACIFIC

RAILROAD COMPANY AS SUCCESSOR

IN INTEREST

Filed May 15, 2023

ORDER DENYING UNION PACIFIC'S

MOTION FOR SUMMARY JUDGMENT

ON ITS PETITION AND MOTION TO

DISSOLVE THE 1955 JUDGMENT

BE IT REMEMBERED, that on the 9th day of

March, 2023, came on to be considered Union Pacific's

Motion for Summary Judgment on its Petition and Motion

to Dissolve the 1955 Judgment ("Motion"), and the Court,

after considering the pleadings, evidence, arguments of

counsel, and law, is of the opinion that such Motion should

be DENIED.

33a

Appendix D

IT IS THEREFORE ORDERED, ADJUDGED AND

DECREED that Union Pacific's Motion for Summary

Judgment on its Petition and Motion to Dissolve the 1955

Judgment is HEREBY DENIED.

SIGNED on May 15, 2023.

/s/

Presiding Judge

34a

Appendix

E

APPENDIX E

— APPELLEES’

AND

INTERVENORS’ MOTION FOR REHEARING

IN THE COURT OF APPEALS FOR THE

TWELFTH JUDICIAL DISTRICT, TYLER,

TEXAS, FILED MARCH 8, 2024

IN THE COURT OF APPEALS FOR THE

TWELFTH JUDICIAL DISTRICT, TYLER, TEXAS

NO. 12-23-00152-CV

UNION PACIFIC RAILROAD COMPANY,

Appellant,

v.

ANDERSON COUNTY AND

CITY OF PALESTINE, TEXAS,

Appellees.

–and–

STEVE PRESLEY, JEAN MOLLARD,

BEN CAMPBELL, HUGH SUMMERS,

PHIL JENKINS AND LARRY MAYO,

Intervenor-Appellees.

Filed March 8, 2024

APPELLEES’ AND INTERVENORS’

MOTION FOR REHEARING

35a

Appendix E

Appellees Anderson County and the City of Palestine,

Texas and Intervenors, timely file this their Motion for

Rehearing pursuant to Texas Rule of Appellate Procedure

49. In support thereof, Appellees and Intervenors would

show the Court as follows:

I.

Introduction

Appellant is Union Pacific Railroad Company;

Appellees are Anderson County and the City of Palestine,

Texas and Citizen Intervenors are Steve Presley, Jean

Mollard, Ben Campbell, Hugh Summers, Phil Jenkins

and Larry Mayo.

The 369th Court of Cherokee County, Texas, signed:

(1) the Order on Anderson County and City of Palestine’s

No-Evidence and, in the Alternative, Traditional Motion

for Summary Judgment; (2) the Order Denying Union

Pacific’s Motion for Summary Judgment on its Petition

and Motion to Dissolve the 1955 Judgment; (3) the Order

Denying Union Pacific Railroad Company’s Motion to

Dissolve the Order on Post-Judgment Relief Signed July

15, 2021 and Order Granting Anderson County and the

City of Palestine’s Plea to the Jurisdiction; and (4) an

Order on Union Pacific’s Plea to the Jurisdiction and

Motion to Strike Alleged Substitutes/Intervenors’ Notice

and Attempted Substitution/Intervention on May 15, 2023.

This Court issued the judgment and opinion in this

case on February 22, 2024. See Union Pacific Railroad

Company v. Anderson County, et al, 12-23-00152-CV,

2024 WL 739110 (Tex. App.—Tyler, Feb. 22, 2024).

36a

Appendix E

II. Summary of the Argument

The Court erred in rendering its judgment. First,

the Court erred in retroactively applying the Interstate

Commerce Commission Termination Act (“ICCTA”) to

a pre-existing, final judgment. Second, the Court lacked

jurisdiction to vacate the 1955 final judgment. Third, the

Court erred in failing to remand the case to the District

Court for proper application of equitable standards for

vacating a judgment. Fourth, the Court erred in failing

to remand for a trial on the merits for the issue of laches.

Fifth, the Court erred in finding that the Intervenor

Citizens were parties to the federal proceedings. These

errors require review and reversal. Therefore, Anderson

County and the City of Palestine and Citizen Intervenors

move for rehearing pursuant to Texas Rule of Appellate

Procedure 49.

III. Issues Presented

Appellees and Citizen Intervenors present five issues

for review:

(1) The Court improperly decided that this case

had been previously barred by collateral estoppel, and

improperly determined that Union Pacific’s obligations

were preempted by the ICCTA because the issue at the

forefront of this case is the 1955 Judgment, and not the

1954 Agreement. Does the ICCTA retroactively apply to

pre-empt a pre-existing, final judgment?

(2) The Court did not have jurisdiction because only

a trial court has jurisdiction to vacate a judgment based

37a

Appendix E

upon changed conditions and there was no appealable

order. The Court improperly entered judgment vacating

the 1955 final judgment and determined that it had

jurisdiction based on the 2023 orders, and also improperly

determined that the 1955 Judgment was an injunction.

Are agreed judgments and injunctions interchangeable?

(3) The Court erred in failing to remand the case to

the District Court for the proper application of equitable

standards for vacating a judgment. If the 1955 Judgment

was capable of being vacated, would the Appellate Court

be required to remand the case to the District Court to

properly apply the equitable balancing test to determine

the proper remedy?

(4) Is the issue of laches appropriate for determination

by the appellate court when there are issues of fact or does

it require remand to the trial court?

(5) The Court erroneously found that the Intervenor

Citizens were parties to the federal proceedings. Does

equitable estoppel apply since the state and federal

proceedings involve different parties?

IV. Arguments and Authorities

The Court has authority to grant this motion for

rehearing, withdraw its opinion, and uphold the trial

court’s judgment, or remand to the trial court for further

proceedings. Tex. R. App. P. 49.3.

38a

Appendix E

A.

Preemption

The first issue is whether the Court improperly decided

that this case had been previously barred by collateral

estoppel, and whether the Court improperly applied

the Interstate Commerce Commission Termination Act

(“ICCTA”) retroactively to vacate a pre-existing, final

state court judgment.

Under the ICCTA, state or local laws or regulations

that have the effect of managing or governing rail

transportation are preempted. However, federal courts

have held that preemption is not to be applied retroactively

to prior valid actions.

The Opinion of this Court provides no analysis or

basis justifying the retroactive application of the ICCTA,

and the record clearly reflects that the 1955 Judgment

was entered long before the congressional adoption of

the ICCTA and long before Union Pacific’s acquisition

of the Palestine assets and obligations. “The Supreme

Court has frequently noted that there is a ‘presumption

against retroactive legislation [that] is deeply rooted in

our jurisprudence.”’ Lieberman v. Cambridge Partners,

LLC, 432 F.3d 482, 488 (3d Cir. 2005) (quoting Landgraf

v. USI Film Products, 511 U.S. 244, 265, 114 S.Ct. 1483

(1994). “Elementary considerations of fairness dictate

that individuals should have an opportunity to know what

the law is and to conform their conduct according. . . .”

Landgraf, 511 U.S. at 265. “Consequently, ‘congressional

enactments will not be construed to have retroactive effect

unless their language requires this result.”’ Lieberman,

39a

Appendix E

432 F.3d at 488 (quoting Bowen v. Georgetown Univ.

Hosp., 488 U.S. 204, 208 (1988)).

Courts should be reluctant to disrupt settled

expectations or alter the legal consequences of past

actions. Landgraf, 511 U.S. at 265-66. Cases involving

contract and property rights require predictability and

stability and are particularly inappropriate candidates for

statutory retroactivity. Id. at 270-72. Consequently, the

presumption against statutory retroactivity has special

force in the area of legislative interference with property

and contract rights. Id. at 272.

This issue of the potential retroactive effect of ICCTA

was explicitly decided soon after its enactment in both

the Eighth and Ninth Circuits, which specifically held

that there is no evidence that Congress intended for the

ICCTA to apply to pre-1996 actions. First, the Eighth

Circuit ruled against retroactive application to preexisting

matters in Owner–Operator Indep. Drivers Ass’n, Inc. v.

New Prime, Inc., holding that:

[A] presumption against retroactive legislation

is deeply rooted in our jurisprudence.” Landgraf

v. USI Film Prods., 511 U.S. 244, 265, 114 S.Ct.

1483, 128 L.Ed.2d 229 (1994) (citation omitted).

The rationale for this presumption is that

“[e]lementary considerations of fairness dictate

that individuals should have an opportunity

to know what the law is and to conform

their conduct accordingly.” Id. As such, the

Supreme Court has provided a framework for

40a

Appendix E

determining when a federal statute applies

to conduct predating the statute’s enactment.

First, a court must determine if Congress

has expressly prescribed the statute’s proper

reach. Id. at 280, 114 S.Ct. 1483. If Congress

has prescribed the reach, “there is no need to

resort to judicial default rules.” Id. If not, a

court must examine whether the statute would

have a retroactive effect; i.e., “whether it would

impair rights a party possessed when he acted,

increase a party’s liability for past conduct, or

impose new duties with respect to transactions

already completed.” Id. If the statute would

do any of these things, the presumption is

that the statute does not govern, absent clear

congressional intent otherwise. Id.

With regard to the ICCTA, Congress has

not expressly prescribed the statute’s reach.

Therefore, we must proceed to the second step:

whether application of the statute in this case

would have a retroactive effect. We agree with

the district court that private rights of action

for damages based on the ICCTA are limited to

actions involving agreements executed after the

ICCTA’s effective date; otherwise, the statute

has a retroactive effect.

Prior to the ICCTA, only the ICC could bring

claims against motor carriers for failure to

comply with the applicable regulations. The

ICCTA shifts this power and permits individual

41a

Appendix E

Owner–Operators to bring defendants directly

into court. We find that this creates an

impermissible retroactive effect.

This issue is analogous to the issue presented

in Hughes Aircraft Co. v. United States, 520

U.S. 939, 117 S.Ct. 1871, 138 L.Ed.2d 135

(1997), in which the Supreme Court held that

when a statute expanded the class of plaintiffs

who could bring claims, the statute altered the

defendant’s substantive rights and therefore

had a retroactive effect. Id. at 950, 117 S.Ct.

1871 (“In permitting actions by an expanded

universe of plaintiffs with different incentives,

the [new statute] essentially creates a new cause

of action, not just an increased likelihood that

an existing cause of action will be pursued.”)

(citation omitted). Here, by permitting Owner–

Operators to bring their own actions against

motor carriers, the ICCTA expands the class

of plaintiffs who could bring claims, thereby

altering the motor carriers’ substantive rights.

But see Owner–Operator Indep. Drivers Ass’n,

Inc. v. Arctic Express, Inc., No. 97–CV–750,

2003 WL 21645754 (S.D.Ohio July 11, 2003).

339 F.3d 1001, 1006–07 (8th Cir. 2003). Consequently, the

New Prime Petitioners’ Petition for writ of certiorari to

the United States Supreme Court was denied. See Owner–

Operator Indep. Drivers Ass’n, Inc. v. New Prime, Inc.,

541 U.S. 973, 124 S. Ct. 1878, 158 L. Ed. 2d 467 (2004).

42a

Appendix E

The Ninth Circuit then quickly followed this precedent,

also holding that the ICCTA could only preempt actions

after its enactment, reasoning that,

[w]e find persuasive New Prime’s conclusion

that in this case, as in Hughes, retroactively

expanding the universe of potential plaintiffs

would have an impermissible retroactive effect.

Because application of the ICCTA to pre1996 agreements would increase Defendants’

potential liability, the statute has a retroactive

effect. See New Prime, 339 F.3d at 1007. In the

absence of evidence of congressional intent to

create such an effect, we apply a presumption

that the statute does not operate retroactively.

See Landgraf, 511 U.S. at 280, 114 S.Ct. 1483.

Because there is no evidence that Congress

intended for the ICCTA to apply to pre-1996

contracts, we hold that ICCTA’s private right

of action for damages applies only to contracts

executed after its enactment.

Rivas v. Rail Delivery Serv., Inc., 423 F.3d 1079, 1084–85

(9th Cir. 2005).

The Fifth Circuit has held that, “[t]he standard for

finding a statute expressly retroactive is demanding . . .

the Supreme Court has suggested that retroactivity has

only been found in “statutory language that was so clear

that it could sustain only one interpretation.” (Internal

citations omitted). Garrido-Morato v. Gonzales, 485 F.3d

319, 322 (5th Cir. 2007). Thus, the dispositive question is

43a

Appendix E

whether Congress has expressed its clear intent that the

ICCTA apply retroactively to final judgments entered

before its enactment.

Though it fails to identify any statutory language

suggesting Congress’ intent, the Opinion of the Court

grants preemption of a 1955 Agreed Judgment executed

over 40 years prior to the existence of the ICCTA. The

1955 Judgment was valid and enforceable at the time of

its entry. For many years, the parties have relied upon the

terms of the 1955 Judgment and had the full opportunity

to know the law and conform their conduct accordingly. A

retroactive application of the ICCTA to the 1955 Judgment

will alter the Appellees substantive rights, relieve the

railroad of its assumed obligations, and create a new

cause of action that did not exist prior to enactment. The

decision in this case to retroactively apply the preemption

provisions of the ICCTA to preempt the 1955 Judgment

would relegate the doctrine of finality of judgments to the

dust bin of Texas jurisprudence. Thus, this Court should

grant rehearing to examine this issue and correct this

improper construction of the law.

B. Jurisdiction

1.

No Jurisdiction to Vacate Trial Court 1955

Judgment.

The Judgment of this Court orders that the judgment

below “be reversed and judgment rendered granting

Union Pacific’s motion for summary judgment and motion

to vacate the 1955 Judgment and July 2021 injunction.”

44a

Appendix E

Judgment at p. 1. This Judgment is contrary to holdings

by the Texas Supreme Court and exceeds the jurisdiction

of this Court. Only the trial court has the jurisdiction

to vacate, modify or suspend a final judgment because

of changed conditions. This issue was analyzed and

determined by the Texas Supreme Court in City of Tyler

v. St. Louis Southwestern Ry. Co., 405 S.W. 2d 330 (Tex.

1966). The Supreme Court considered whether appellate

courts have “jurisdiction to determine in the first instance

whether a judgment rendered by it as a court of review

has become void and unenforceable because of changed

conditions? We hold that it does not; that jurisdiction so

to determine lies with the trial court in which the case

was pending when final judgment was entered.” Id. at

332. A remand is necessary because only the trial court

can subpoena witnesses, take evidence, and make the

necessary findings of fact to apply the balancing of equities

test required to vacate a trial court judgment. The trial

courts must be accorded the jurisdiction to make the initial

determination. “Their judgments doing so or refusing

to do so are, of course, reviewable on appeal; but their

original jurisdiction to make the decision is exclusive. Id.

at 333.

2.

Insufficient Record to Support Vacating

Judgment.

Appellate courts have jurisdiction only over final

judgments and such interlocutory orders as the legislature

deems appealable. Lehmann v. Har–Con Corp., 39 S.W.3d

191, 195 (Tex.2001); Ruiz v. Ruiz, 946 S.W.2d 123, 124

(Tex.App.—El Paso 1997, no writ). Texas courts have held

45a

Appendix E

that an appellate court in an untimely direct appeal may

not adjudicate a party’s arguments as to why a judgment

or order is void. See Royal Indep. Sch. Dist. v. Ragsdale,

273 S.W.3d 759, 766 n.7 (Tex. App.—Houston [14th Dist.]

2008, no pet.); Tafoya v. Green Tree Servicing, LLC, No.

03-14-00391-CV, 2014 WL 7464321, at *2, n.2 (Tex. App.—

Austin Dec. 30, 2014, no pet.) (mem. op.); Kenseth v. Dallas

Cnty., 126 S.W.3d 584, 596–97 (Tex. App.—Dallas 2004,

pet. denied); In re Estate of Courvier, No. 04-07-00469CV, 2007 WL 2935809, at *1 (Tex. App.—San Antonio Oct.

10, 2007, no pet.) (mem. op.); In re Estate of Mitchell, 20

S.W.3d 160, 161–62 (Tex. App.—Texarkana 2000, no pet.).

A final judgment is not subject to further modification

when the court has lost plenary jurisdiction. Postjudgment

relief is limited to enforcement of the terms of the

judgment, especially for a consent judgment entered

at the request of the parties. Consequently, parties

should exercise care when consenting or assuming such

judgments. A change in circumstances that renders the

terms to be less profitable is not a basis for vacating the

judgment.

Even if the 1955 Judgment were construed as an

injunction, this Court’s jurisdiction was still not invoked.

The federal court proceedings concerning the 1954

contract merely confirms the finality and importance

of the 1955 Judgment. The parties correctly foresaw

the vagarious nature of contracts and enshrined their

obligations in a final, binding judgment. An attempt to

absolve a party from a final judgment, even an injunction,

must be based upon allegations and evidence that the

46a

Appendix E

obligations have become so exceedingly onerous to be

impossible to perform or so inequitable that a re-balancing

of the equities between the parties is required. The

pleadings by Union Pacific only describe limited financial

effects, effects that are clearly sustainable without dire

consequences. Even if the 1955 Judgment constituted

an injunction, these allegations are insufficient to invoke

the jurisdiction of this Court. Federal preemption of

the contract is only one factor to be considered in the

evaluation of whether to vacate or modify the judgment

due to alleged changed circumstances

C.

Remand

When a cause is remanded to a trial court by an

appellate court, the application of both the law of the case

doctrine and the scope of the remand must be considered

by the trial court in determining what additional

proceedings are necessary to fully resolve the underlying

cause. “The ‘law of the case’ doctrine is defined as that

principle under which questions of law decided on appeal

to a court of last resort will govern the case throughout its

subsequent stages.” Hudson v. Wakefield, 711 S.W.2d 628,

630 (Tex. 1986). “By narrowing the issues in successive

stages of the litigation, the law of the case doctrine is

intended to achieve uniformity of decision as well as

judicial economy and efficiency.” Id. Similarly, when an

appellate court “remands a case and limits a subsequent

trial to a particular issue, the trial court is restricted to

a determination of that particular issue.” Id. “Thus, in

a subsequent appeal, instructions given to a trial court

in the former appeal will be adhered to and enforced,”

47a

Appendix E

regardless of whether those instructions appear in the

appellate court’s mandate or in its opinion. Id.

When a trial court grants a summary judgment,

the losing party appeals, and an appellate court finds

reversible error in the judgment, the appellate court’s

normal action is to reverse the trial court’s judgment and

remand the cause to the trial court. This court has broad

discretion to remand in the interest of justice. Ahmed v.

Ahmed, 261 S.W.3d 190, 196 (Tex. App.—Houston [14th

Dist.] 2008, no pet.). Appellate courts have remanded in

the interest of justice “when a decision has clarified the

way in which a claim should be submitted to the jury.”

Berkel & Co. Contractors, Inc. v. Lee, 543 S.W.3d 288,

308 (Tex. App.—Houston [14th Dist.] 2018, pet. filed)

(citing Torrington Co. v. Stutzman, 46 S.W.3d 829, 840–41

(Tex. 2000)). Courts have also remanded in the interest of

justice if a case was “tried on an incorrect legal theory or

to establish and present evidence regarding an alternate

legal theory.” Id.; see also Morrow v. Shotwell, 477 S.W.2d

538, 541–42 (Tex. 1972) (remanding in the interest of

justice rather than rendering a take-nothing judgment

when the plaintiff “tried his case on a wrong theory”).

Appellate courts, however, can also remand a case when

further proceedings are necessary or when the interest

of justice requires another trial. Tex.R.App. P. 43.3. This

is often the case in situations that require reweighing

evidence or finding facts. Although appellate courts can

unfind facts, they are not fact-finding courts. See Parsons

v. Parsons, 722 S.W.2d 751, 753 (Tex.App.—Houston [14th

Dist.] 1986, no writ).

48a

Appendix E

Here, the Judgment of this Court failed to remand

the case, despite the decision needing further clarification

by the trial court. If the decision to render judgment in

favor of Union Pacific and vacate the 1955 Judgment and

July 2021 injunction stand, both parties would require

significant clarification about the timeline of such

dissolution, remaining length of time for the cessation of

employment, any potential payouts to employees, equitable

compensation to Anderson County, the City of Palestine

and the Citizen Intervenors, and what would happen to the

Union Pacific property in Palestine. Vacating a judgment

is an equitable proceeding requiring consideration of

the interests of the parties. Simply vacating the 1955

Judgment and 2021 Injunction does not implement the

balancing of the equities requirements and would not be in

the interest of justice for either Union Pacific or Anderson

County, the City of Palestine and the Intervenor Citizens.

The Court should withdraw its Judgment and remand to

the trial court for further proceedings.

D.

No Collateral Estoppel

The Opinion of the Court held that “collateral estoppel

applies to this case.” Opinion at p. 11. However, there are

at least two essential elements of collateral estoppel that

are missing in this case. First, the issue decided in the

first case must be identical to the issue in the pending suit.

State & Cty. Mut. Fire Ins. v Miller, 52 S.W, 3d 693, 696

(Tex. 2001). The equitable issues and legal standards in an

action to vacate a final court judgment are substantively

differ that the preemption issues pertaining to a contract

in the federal proceeding. Second, the Opinion of the

49a

Appendix E

Court is erroneously based upon an incorrect finding

that “Union Pacific, Palestine, Anderson County, and the

Citizens Committee were all parties to the federal case.”

Opinion at p.11. As demonstrated by the record in this

case, the Citizens Committee was not a party to the federal

case. C.R.2:521-53 1. Collateral estoppel does not apply

if the parties are not the same. Southwest Guar. Trust

Co. v. Providence Trust Co., 970 S.W. 2d 777, 784 (Tex.

App.—Austin 1998, pet. Denied). Due process requires

that collateral estoppel only apply to persons who have

already had their day in court.

E. Laches Requires Remand

“Laches, in legal significance, is not mere delay but

delay that works a disadvantage to another. So long

as parties are in the same condition, it matters little

whether one presses a right promptly or slowly, within

the limits allowed by law; but when knowing his rights,

he takes no steps to enforce them until the condition of

the other party has, in good faith, become so changed

that he cannot be restored to his former state, if the

right be then enforced, delay becomes inequitable, and

operates as estoppel against the assertion of the right.”

Culver v. Pickens, 142 Tex. 87, 176 S.W.2d 167, 170 (1943).

Laches, similar to estoppel, rests on the theory, that

because of a delay in the exercise of a legal or equitable

right, the defendant would be unconscionably prejudiced

if the right were exercised. Continental Insurance Co.

v. Stewart & Stevenson Services, Inc., 306 S.W.2d 415,

423 (Tex.Civ.App.—Houston 1957, writ ref’d n.r.e.). Two

essential elements of laches are (1) unreasonable delay

50a

Appendix E

by one having legal or equitable rights in asserting them

and (2) a good faith change of position by another to his

detriment because of the delay. City of Fort Worth v.

Johnson, 388 S.W.2d 400, 403 (Tex.1964). Although some

appellate courts have viewed laches as a defense against

the enforcement of equitable rights, the Texas Supreme

Court and many appellate courts have included legal

rights as well. See City of Fort Worth v. Johnson, 388

S.W.2d 400, 403 (Tex.1964) (laches is “unreasonable delay

by one having legal or equitable rights in asserting them”);

Preston Tower Condominium Association v. S.B. Realty,

Inc. et al, 685 S.W.2d 98, 103–04 (Tex.App.—Dallas

1985, no writ) (laches was used as a defense against the

enforcement of a lease restriction); Smith v. Smith, 681

S.W.2d 793, 796 (Tex.App.— Houston [14th Dist.] 1984, no

writ); De Benavides v. Warren, 674 S.W.2d 353, 362 (Tex.

App.—San Antonio 1984, no writ).

Here, Anderson County and the City of Palestine have

certainly met the elements to at least establish a fact issue

on the issue of laches. Twenty-five years passed between

the passing of the ICCTA and Union Pacific’s first dissent

about the long-standing arrangement between Union

Pacific and Anderson County and the City of Palestine.

Union Pacific’s delay led Anderson County and the

City of Palestine to rely on, in good faith, the continued

employment opportunities for their residents and the

expenditure of public funds to support the employment

by the railroad. A change in the requirements of the 1955

Judgment will lead to significant detriment to Anderson

County and the City of Palestine and their residents. There

will be decreased employment opportunities, decreased

51a

Appendix E

taxable income for the two governmental entities, and

other harms. The Opinion of the Court implies that

twenty-five years is not an unreasonable delay, and states

that Union Pacific’s 2018 internal business model decision

was sufficient notice to prevent unreasonable delay without

explanation. The Opinion discounts the affidavit of Judge

Robert Johnston because “Judge Johnson (sic) testified in

his deposition that the road services other properties in

the area.” This analysis ignores the fact that the road was

improved and maintained solely at the request of Union

Pacific and that Anderson County will be compelled to

continue to maintain the road at its expense. The reversal

and rendering of a decision on this issue exceeds the

role of the appellate court to determine whether there

is sufficient lack of evidence of a material fact issue

to warrant summary judgment. In this case, there is

certainly sufficient evidence of delay and detrimental

reliance to require a hearing on the merits. The Judgment

of the Court should be withdrawn and the issue of laches

remanded to the trial court for further proceedings.

The Opinion further discounts the evidence Anderson

County and Palestine presented regarding their financial

planning decisions. Removing a major employer for a

community will have significant financial impacts to

that community. In this equitable proceeding, the trial

court was required to consider the imminent harm to

the employees of Union Pacific and the citizens in the

community if the income from the payroll requirement was

suspended. There is ample evidence in the record of the

importance of the continued maintenance of this payroll to

the employees and the community. The employees of Union

52a

Appendix E

Pacific will be immediately harmed by the elimination of

their economic livelihood and this will inflict direct harm

on the citizens of the City of Palestine and Anderson

County. The record in this case is sufficient to create a

material fact issue and require remand for hearing on

the merits.

Because there is a material issue of fact concerning an

unreasonable delay and detrimental reliance, this Court

should remand this issue to the trial court for further

proceedings on the issue of laches.

V. Conclusion & Prayer

In summary, Appellees and Citizen Intervenors

urge the Court to reconsider its Opinion and Judgment

retroactively applying ICCTA to a final court judgment,

improperly applying collateral estoppel to this case,

supplanting the exclusive jurisdiction of the trial court on

the issue of vacating its judgment, and failing to remand

on the issue of laches. Therefore, Appellees Anderson

County and the City of Palestine and Intervenors Steve

Presley, Jean Mollard, Ben Campbell, Hugh Summers,

Phil Jenkins and Larry Mayo move for rehearing pursuant

to Texas Rule of Appellate Procedure 49.

Respectfully submitted,

/s/

James P. Allison

SBN: 01090000

j.allison@allison-bass.com

53a

Appendix E

J. Eric Magee

SBN: 24007585

e.magee@allison-bass.com

Susana Naranjo-Padron

SBN: 24105699

s.naranjo-padron@allison-bass.com

Allison, Bass & Magee, L.L.P.

1301 Nueces Street, Suite 201

Austin, Texas 78701

(512) 482-0701 telephone

(512) 480-0902 facsimile

D. Bryan Hughes

SBN: 00793995

bryan@bryanhughes.com

Law Office of D. Bryan Hughes

110 N. College Ave. Suite 207

Tyler, Texas 75702

(903)581-1776 telephone

(903) 630-8794 facsimile

Attorneys for Appellees

Charles H. Clark

Law Office of Charles H. Clark, P.C.

604 W. Woldert Street

Tyler, Texas 75702

Telephone: (903) 593-2514

Attorney for Intervenor-Appellees

54a

Appendix FOR

F

APPENDIX F — MOTION

REHEARING

OF THE SUPREME COURT OF TEXAS,

FILED SEPTEMBER 23, 2024

IN THE SUPREME COURT OF TEXAS

NO. 24-0354

ANDERSON COUNTY AND

CITY OF PALESTINE, TEXAS,

Appellants,

v.

UNION PACIFIC RAILROAD COMPANY,

Appellee.

Filed September 23, 2024

From the 12th Court of Appeals at Tyler, Texas

(No. 13-22-00359-CV)

PETITIONERS’ MOTION FOR REHEARING

James P. Allison

SBN: 01090000

j.allison@allison-bass.com

Susana Naranjo-Padron

SBN: 24105688

s.naranjo-padron@allison-bass.com

ALLISON, BASS & MAGEE, L.L.P.

1301 Nueces Street, Suite 201

Austin, Texas 78701

55a

Appendix F

(512) 482-0701 telephone

(512) 480-0902 facsimile

D. Bryan Hughes

SBN: 00793995

bryan@bryanhughes.com

Law Office of D. Bryan Hughes

110 N. College Ave. Suite 207

Tyler, Texas 75702

(903)581-1776 telephone

(903) 630-8794 facsimile

Counsel for Petitioners

[TABLES INTENTIONALLY OMITTED]

IN THE SUPREME COURT OF TEXAS

NO. 24-0354

ANDERSON COUNTY AND

CITY OF PALESTINE, TEXAS,

Appellants,

v.

UNION PACIFIC RAILROAD COMPANY,

Appellee.

From the 12th Court of Appeals at Tyler, Texas

(No. 13-22-00359-CV)

56a

Appendix F

PETITIONERS’ MOTION FOR REHEARING

TO THE HONORABLE JUSTICES OF THE SUPREME

COURT OF TEXAS:

Petitioners, Anderson County, Texas, and the City

of Palestine, Texas respectfully present this Motion for

Rehearing pursuant to Tex. R. App. P. Rules 64, et seq.,

requesting that the Supreme Court grant rehearing,

withdraw its order denying review, and grant the petition

for review. In support of this Motion, Petitioners would

show the Court as follows:

STATEMENT OF JURISDICTION

The Supreme Court has jurisdiction over this appeal

pursuant to Tex. Gov’t Code § 22.001(a) because this

case involves a question of law that is important to the

jurisprudence of this state.

ISSUE FOR REHEARING

The Court of Appeals mis-applied the standard for

federal preemption and improperly vacated a final state

court judgment.

ARGUMENT AND AUTHORITIES

A fter prolonged litigation, this Court has the

opportunity to correctly preserve and uphold the agreed

final judgment between the railroad and Anderson County

and the City of Palestine. Without the opportunity to

57a

Appendix F

consider later precedent from this Court, the Court

of Appeals incorrectly held that a federal declaratory

judgment involving different issues and parties was

sufficient to vacate an agreed final state court judgment.

The faulty analysis adopted by the court of appeals

would eviscerate the established doctrine of finality of

judgments and the established common law precedents

for the requirements to vacate a final judgment. Further,

this decision would inject uncertainty into the ability of

parties to negotiate a final resolution of issues through an

agreed judgment. Finally, the decision below will reduce

the state courts and their judgments to a “rubber stamp”

of a federal court declaratory judgment, surrendering the

sovereignty guaranteed by the Tenth Amendment to the

U. S. Constitution.

Federal declaratory relief is generally not available

once state court proceedings commence and is certainly

not available to disturb a final state court judgment. This is

a basic tenant of federalism, in which lower federal courts

are not given the power to directly review cases from state

courts. Atlantic Line R. Co. v. Brotherhood of Locomotive

Engineers, 90 S.Ct. 1739, 1742-43 (1970). Upholding this

tenet is necessary for the separation of federal and state

courts and the independence of the States in which this

country was founded. Chick Kam Choo v. Exxon Corp.,

486 U.S. 140 (1988).

58a

Appendix F

A.

The Preemption Analysis by the Court of

Appeals was Erroneous and without Benefit

of Recent Texas Supreme Court Precedent.

Rather than perform its own analysis of the proper

application of preemption to a state court judgment, the

Twelfth Court of Appeals specifically cited and adopted

the federal court preemption analysis of the application

of preemption to the 1954 Agreement, rather than the

final 1955 judgment. Union Pacific Railroad Company

v. Anderson County et al, No. 12-23-00152-CV at 11. The

Twelfth Court of Appeals did not have the benefit of the

considered analysis of preemption provided by this Court

in Horton v. Kansas City S. Ry. Co., 692 S.W. 3d 112 (Tex.

2024). After its brief (less than two page) preemption

analysis, the Court of Appeals opines that “[a]pplying

the federal courts’ reasoning, the 1955 Judgment’s

requirement that Union Pacific remain in Palestine both

regulates Union Pacific’s use of railroad facilities and

services and interferes with the STB’s jurisdiction over

those facilities. As a result, the 1955 Judgment’s perpetual

obligations on Union Pacific are preempted by the

ICCTA.” Id. at 14. Besides the erroneous statement that

the obligations are perpetual, this cursory discussion fails

to apply the principles enunciated by this Court in Horton

in several respects. As instructed by Horton, a proper

analysis of the potential application of federal preemption

of state court actions by ICCTA requires consideration

of its text, precedent, and remedies, especially when

affecting state common-law and uncontested claims.

59a

Appendix F

The 1955 Judgment imposes a single requirement

on the railroad: that it expend a certain percentage of

its funds for employment in Palestine. C.R. 21-39. The

Judgment does not require the railroad to provide any

services; it does not control any of the duties of these

employees or even that they perform any railroad

functions. As this Court noted in Horton, “[e]ven if this

cost were unreasonable, courts have generally concluded

that increased costs alone cannot create the type of

“unreasonable” burden or interference necessary to

trigger implied preemption.” Horton at 25.

Perhaps, the greatest lapse in the Court of Appeals

preemption analysis is its failure to recognize the

difference between a contract and a final state court

judgment. By adopting in toto the federal court contract

analysis, the court completely ignores the issues of

federalism vital to an attempt to vacate a final state court

judgment based upon a later federal declaratory judgment.

As noted in the concurrence in Horton, “ICCTA does not

expressly preempt ordinary state common- law claims.”

Id. at 38. The Court of Appeals cited no authority for its

extraordinary decision to vacate an agreed, final state

court judgment based upon its application of preemption

by a later federal statute. Indeed, the Court of Appeals

ignored its own precedent which previously held that “the

record reveals there is a final, unappealed judgment on

the merits, and in our view such a judgment ought not

to be, and is not, altered by the fact that it ‘rested on a

legal principle subsequently overruled in another case.’”

Ex parte Forderhase, 635 S.W.2d 198, 200 (Tex.App.—

Tyler 1982, no writ). All prior precedent requires that a

60a

Appendix F

petition to vacate a final state court judgment be equitably

reviewed by the trial court and determined by balancing

the equities between the parties, and, if necessary, be

modified to maintain that balance. Despite prior precedent

to the contrary, the Twelfth Court of Appeals has adopted

the reasoning of a federal district court declaratory

judgment without analysis and improperly vacated a final

state court judgment.

Preemption is a question of law reviewed de novo.

Thompson v. Tex. Dep’t of Licensing & Regulation, 455

S.W.3d This Court has rejected similar federal preemption

in other circumstances. In Tex. Mut. Ins. Co. v. PHI Air

Med., LLC, this Court noted that the attempted federal

preemption “would irrationally leave the parties without

any governing law or available remedy”. Tex. Mut. Ins.

Co. v. PHI Air Med, LLC, 610 S.W. 3d 839, 854 (Tex. 2020)

(citing Dan’s City Used Cars, Inc. v. Pelkey, 569 U.S. 251,

265 (2013)). The 1955 Judgment simply provides for specific

enforcement of the voluntary railroad commitments. If a

declaratory judgment from a federal district court can

provide the sole basis for vacating a final state court

judgment without a hearing on the merits, the entire basis

for reliance upon the finality of judgments is jeopardized.

Vacating an agreed, final judgment on this basis will leave

the parties with no available remedy and will result in an

unconscionable windfall for the vacating party.

61a

Appendix F

B. The Court of Appeals improperly retroactively

applied ICCTA to a final state court judgment.

On the issue of retroactive application, Texas courts

have consistently followed the United States Supreme

Court decision in Linkletter v. Walker, 381 U.S. 618 (1965),

which specifically considered the problem involved in

applying subsequent law retroactively to prior judgments.

The Linkletter doctrine applies to long-established

common law rules, such as the doctrine of finality of

judgments and procedures for vacating final judgments.

Linkletter weighs the factors involved, such as the prior

history of finality of judgments, and then determines

whether retroactive application will further or retard its

purpose. The doctrine also considers the reliance placed

on the previous rule and the effect on the administration

of justice of a retroactive application of the new law. This

Court has held that “resolution of the issue turns primarily

on the extent of public reliance on the former rule and the

ability to foresee a coming change in the law.” Sanchez v.

Schindler, 651 S.W.2d 249, 254 (Tex. 1983)

Federal appellate courts have held that ICCTA has

no retroactive effect. Owner-Operator Indep. Drivers

Ass’n, Inc. v. New Prime, Inc., 339 F. 3d 1001 (8th Cir.

2003, cert. denied); Rivas v. Rail Delivery Serv., Inc., 423

F. 3d 1079 (9th Cir. 2005). However, the Twelfth Court of

Appeals decision in this case will establish a precedent of

retroactively applying preemptive acts of Congress to final

state court judgments without any Linkletter analysis.

A simple analysis of the Linkletter factors reveals that

62a

Appendix F

the public reliance on the finality of judgments is vitally

important and that it was not foreseeable in 1955 that

Congress would adopt a measure in 1995 to preempt an

agreed final judgment. Clearly, the Court of Appeals did

not perform any such analysis and erroneously applied a

federal court preemption contract analysis to this agreed,

final judgment.

If the Twelfth Court of Appeals decision stands, no

state court final decision can be considered final. Any

party who disagrees with a state court final judgment

may seek to overturn the decision with a federal court

declaratory judgment. The traditional rules for vacating

judgments requiring an equitable balancing analysis will

be obviated. While this decision may appear to only affect

the citizens of Anderson County and Palestine, there will

be much broader repercussions.

CONCLUSION

W HEREFORE, PREMISES CONSIDERED,

Anderson County, Texas, and the City of Palestine, Texas

pray that this Court grant their Motion for Rehearing,

grant the Petition for Review; and upon full consideration,

correct and reverse the judgment of the Court of Appeals,

and also request such other and further relief to which

they may be entitled.

63a

Appendix F

Respectfully submitted,

/s/ James P. Allison

James P. Allison

SBN: 01090000

j.allison@allison-bass.com

Susana Naranjo-Padron

SBN: 24105699

s.naranjo-padron@allison-bass.com

ALLISON, BASS & MAGEE, L.L.P.

1301 Nueces Street, Suite 201

Austin, Texas 78701

(512) 482-0701 telephone

(512) 480-0902 facsimile

D. Bryan Hughes

SBN: 00793995

bryan@bryanhughes.com

Law Office of D. Bryan Hughes

110 N. College Ave. Suite 207

Tyler, Texas 75702

(903)581-1776 telephone

(903) 630-8794 facsimile

64a

G FOR REVIEW

APPENDIX G —Appendix

PETITION

OF THE SUPREME COURT OF TEXAS,

FILED MAY 2, 2024

IN THE SUPREME COURT OF TEXAS

NO.

ANDERSON COUNTY AND

CITY OF PALESTINE, TEXAS,

Petitioners,

v.

UNION PACIFIC RAILROAD COMPANY,

Respondent.

Filed May 2, 2024

From the Twelfth Court of Appeals at Tyler, Texas

(No. 12-23-00152-CV)

PETITION FOR REVIEW

James P. Allison

SBN: 01090000

j.allison@allison-bass.com

Susana Naranjo-Padron

SBN: 24105688

s.naranjo-padron@allison-bass.com

ALLISON, BASS & MAGEE, L.L.P.

65a

Appendix G

1301 Nueces Street, Suite 201

Austin, Texas 78701

(512) 482-0701 telephone

(512) 480-0902 facsimile

D. Bryan Hughes

SBN: 00793995

bryan@bryanhughes.com

Law Office of D. Bryan Hughes

110 N. College Ave. Suite 207

Tyler, Texas 75702

(903)581-1776 telephone

(903) 630-8794 facsimile

Counsel for Petitioners

IDENTITY OF PARTIES & COUNSEL

Petitioners certify that the following is a complete list

of the parties, the attorneys, and any other person who

has any interest in the outcome of this lawsuit:

66a

Appendix G

Petitioners:

Counsel for Petitioners:

Anderson County, Texas James P. Allison

City of Palestine, Texas SBN: 01090000

j.allison@allison-bass.com

Susana Naranjo-Padron

SBN: 24105688

s.naranjo-padron@

allison-bass.com

ALLISON, BASS &

MAGEE, L.L.P.

1301 Nueces Street,

Suite 201

Austin, Texas 78701

(512) 482-0701 telephone

(512) 480-0902 facsimile

D. Bryan Hughes

SBN: 00793995

bryan@bryanhughes.com

Law Office of

D. Bryan Hughes

110 N. College Ave. Suite 207

Tyler, Texas 75702

(903)581-1776 telephone

(903) 630-8794 facsimile

67a

Appendix G

Respondent:

Counsel for Respondent:

Union Pacific Railroad

Company

Kent Rutter

Kent.rutter@haynesboone.com

Polly Fohn

Polly.fohn@haynesboone.com

Haynes and Boone, LLP

1221 McKinney Street,

Suite 4000

Houston, Texas 77010

Tel: (713) 547-2000

Fax: (713) 547-2600

Substituting

Intervenors:

Steve Presley

Jean Mollard

Ben Campbell

Hugh Summers

Phil Jenkins

Larry Mayo

John Proctor

jproctor@brownproctor.com

Brown, Proctor & Howell, LLP

830 Taylor Street

Fort Worth, Texas 76102

Tel: (817) 332-1391

Fax: (817) 870-2427

Counsel for Substituting

Intervenors:

Charles H. Clark

chc@charlesclarklaw.com

Law Office of

Charles H. Clark, P.C.

604 W. Woldert

Tyler, Texas 75702

Tel: (903) 593-2514

Fax: (903) 595-1294

[TABLES INTENTIONALLY OMITTED]

68a

Appendix G

DESIGNATION OF RECORD REFERENCES

This Petition uses the following conventions in citing

to the record:

Clerk’s Record:

(CR [vol]:[page].)

Reporter’s Record: (RR [vol]:[page].)

Appendix:

(App.[letter]:[page].)

STATEMENT OF THE CASE

Nature of the Case:

This Petition seeks review of the Memorandum

Opinion and Judgment of the Twelfth Court of Appeals

which reversed the orders of the 369th District Court

and rendered summary judgment vacating a final, agreed

1955 Judgment. Petitioners sought post-judgment relief

against Respondent Union Pacific Railroad Company

(“Union Pacific”) when it unilaterally violated the terms

of the agreed 1955 Judgment.

Trial Court Information:

The post-judgment action was filed in the 369th

Judicial District Court of Cherokee County, Texas, with

the Honorable C. Michael Davis presiding, and styled

as Anderson County, et al v. International & Great

Northern Railway Company; Union Pacific Railroad

Company as successor in interest, Cause No. 2021-060150.

69a

Appendix G

Trial Court Disposition:

Judge Davis entered temporary enforcement orders

on July 15, 2021. Judge Davis entered further enforcement

orders, granting summary judgment to Anderson County,

City of Palestine, and Intervenors and denying summary

judgment to Union Pacific on May 15, 2023.

Proceedings in the Court of Appeals:

Union Pacific appealed the trial court orders to the

Twelfth Court of Appeals. Union Pacific was the appellant,

Anderson County, City of Palestine, and Intervenors were

the appellees.

Parties in the Court of Appeals and Supreme Court:

Petitioners/Appellees:

Anderson County and the

City of Palestine, Texas

Respondent/Appellants: Union Pacific Railroad

Company

Intervenors/Appellees:

Steve Presley, Jean

Mollard, Ben Campbell

Hugh Summers, Phil

Jenkins and Larry Mayo

Court of Appeals’ Opinion:

The Court of Appeals’ opinion was authored by Chief

Justice James T. Worthen, joined by Justices Brian Hoyle

and Greg Neeley. The memorandum opinion of the court

70a

Appendix G

can be found at Union Pacific Railroad Company v.

Anderson County, No. 12-23-00152-CV, 2024 WL 739110

(Tex. App.—Tyler Feb. 22, 2024). Copies of this opinion

can also be found in the Appendix hereto at App. A.

Court of Appeals’ Disposition:

The Court of Appeals’ judgment and memorandum

opinion reversed the trial court’s orders signed on May

15, 2023 and rendered judgment vacating the agreed 1955

Judgment. App. A. Petitioners’ Motion for Rehearing was

denied by the Court of Appeals.

STATEMENT OF JURISDICTION

The Court has jurisdiction over this case because:

(1) the justices of the Court of Appeals held differently

from prior decisions of this Court and other courts of

appeal on important questions of law that are material

to its decision;

(2) this case involves fundamental legal principles

concerning finality and validity of a trial court judgment;

and

(3) the justices of the Court of Appeals committed an

error of law of such importance to the state’s jurisprudence

that it should be corrected.

See Tex Gov’t Code Ann. § 22.001; Tex. R. App. P. 56.1.

71a

Appendix G

First, this Petition arises from a flawed holding of

the Twelfth Court of Appeals. The Supreme Court has

jurisdiction over this appeal because the case involves

the Court of Appeals’ misapplication of Texas law in

conjunction with the federal law by retroactively applying

a federal law to a final state-court judgment. The appeal

also ignores the finality and importance of agreed

judgments. The Court of Appeals improperly vacated

the 1955 trial court judgment, mis-applied the 2021

federal district court opinion and the federal appellate

opinion, retroactively applied federal law contrary to clear

precedent, and mis-construed the 2023 trial court order.

Under the precedents of this Court, the 1955 Judgment

is final and enforceable and Union Pacific is not entitled

to vacate its terms.

ISSUES PRESENTED

1.

The Twelfth Court of Appeals improperly assumed

jurisdiction over the trial court’s 2021 and 2023 orders

because the enforcement orders were not a final

judgment, but rather, an interlocutory enforcement

order of the 1955 final judgment and not an appealable

final judgment.

2.

The Twelfth Court of Appeals lacked jurisdiction to

vacate the 1955 Judgment.

3.

The Twelfth Court of Appeals improperly applied the

Interstate Commerce Commission Termination Act

(ICCTA) retroactively to the 1955 Judgment.

72a

Appendix G

4.

The Twelfth Court of Appeals failed to remand

the case to the 369th District Court for the proper

application of equitable standards for vacating a

judgment.

5.

The Twelfth Court of Appeals improperly applied

laches to the material fact issues brought by Anderson

County and the City of Palestine, which should have

been decided by the District Court.

6.

The Twelfth Court of Appeals improperly found that

the Intervenor Citizens were a party to the federal

proceedings.

7.

The Twelfth Court of Appeals improperly applied

the doctrine of collateral estoppel to the trial court

enforcement orders of the 1955 final judgment.

STATEMENT OF FACTS

The opinion of the Court of Appeals correctly states

the nature of the case.

SUMMARY OF THE ARGUMENT

The Supreme Court should exercise jurisdiction

to review this case because it involves matters of first

impression and importance to the jurisprudence of this

state concerning the finality and validity of judgments,

the proper standard for vacating a final judgment, and

the requirements for summary judgment. The Court of

Appeals erroneously overturned the trial court’s 2021 and

73a

Appendix G

2023 orders—not a final judgment; rather, enforcement

orders of the 1955 Judgment. Without a final judgment,

the Court of Appeals lacked jurisdiction to consider an

appeal from the 2021 and 2023 orders, and did not have the

ability to overturn them. Further, the Court of Appeals

improperly applied the ICCTA retroactively to the 1955

Judgment. Prior court decisions have unanimously held

that ICCTA has no retroactive effect and is not applicable

to actions and events prior to its passage. The ICCTA has

no retroactive application to the 1955 Judgment and may

not be applied to vacate it. Further, the Court of Appeals

erroneously failed to remand the case to the district

court for the proper application of equitable standards

for vacating the 1955 Judgment. After rendering its

decision, the Court of Appeals was required to remand

the case to the trial court to apply the equitable balancing

principles on the issue of vacating a judgment. Further,

the Court of Appeals improperly granted summary

judgment on the issue of laches. There were material

issues of fact concerning an unreasonable delay and

detrimental reliance, which must be remanded to the

trial court. Further, the Court of Appeals erroneously

found that the intervenor citizens were a party to the

federal proceeding for purposes of applying the doctrine

of collateral estoppel. Finally, the Court of Appeals

improperly applied the doctrine of collateral estoppel to a

final judgment. A collateral attack cannot be levied against

a final judgment, and both the federal district court and

the Fifth Circuit Court of Appeals previously recognized

that their decisions did not apply to the 1955 Judgment.

74a

Appendix G

ARGUMENT AND AUTHORITIES

This petition is the latest in a long line of litigation and

appeals by railroads attempting to avoid their voluntary

commitments to Anderson County, the City of Palestine

and their citizens. It is a struggle to save the livelihoods of

the citizens of Anderson County and the City of Palestine,

who have long relied upon their employment with Union

Pacific as a means to provide for their community. With its

actions, Union Pacific has shown that it places profits over

its commitments. It remains the solemn duty of our courts

to preserve and enforce these commitments, especially

when verified in a final court judgment. The decision by the

Court of Appeals ignores well established jurisdictional

law and precedent and should not be allowed to stand.

A. The Court of Appeals Improperly Overturned the

Trial Court’s 2021 and 2023 orders, which were not

final judgments, but rather, enforcement actions of

the 1955 Judgment.

The trial court has both a statutory and an inherent

power to enforce its judgment. Tex. R. Civ. P. 308 (“The

court shall cause its judgments and decrees to be carried

into execution.”). See also, Arndt v. Farris, 633 S.W.2d

497, 499 (Tex.1982) (“The general rule is that every court

having jurisdiction to render a judgment has the inherent

power to enforce its judgments.”). The trial court may

not, however, issue an order that is inconsistent with

the original judgment or that otherwise constitutes “a

material change in the substantive adjudicative portions

of the judgment” after its plenary power has expired. See

75a

Appendix G

Comm. For Lawyer Discipline v. Denisco, 132 S.W.3d

211, 215 (Tex. App.—Houston [14th Dist.] 2004, no pet.);

Bank One, N.A. v. Wohlfahrt, 193 S.W.3d 190, 194–95 (Tex.

App.-Houston [1st Dist.] 2006, no pet.).

A motion to vacate, modify, correct, or reform a

judgment must be filed before or within thirty days after

the judgment or other order complained of is signed. Tex.

R. Civ. P. 329b(a)(d). On expiration of the time in which

the trial court has plenary power, a judgment cannot

be set aside by the trial court except by a timely-filed

bill of review for sufficient cause. Tex. R. Civ. P. 329b(f).

Generally, the date the judgment or order is signed of

record shall determine the calculation of the periods in

which the trial court has plenary power to grant a new

trial or to vacate, modify, correct, or reform a judgment

or order. See Tex. R. Civ. P. 306a(1); See also In re Parker,

117 S.W.3d 484, 486–87 (Tex. App.—Texarkana 2003, orig.

proceeding) (reversing order granting motion to vacate

final decree of divorce filed 39 days after final judgment

signed).

B. The Court of Appeals Lacked Jurisdiction to

Overturn the 1955 Judgment.

Despite the fact that a judgment has its genesis in an

agreement between the parties, the judgment itself has

an independent status. Pollard v. Steffens, 161 Tex. 594,

343 S.W.2d 234 (1961). Once the agreement of the parties

has been approved by the court and made a part of its

judgment, the agreement is no longer merely a contract

between private individuals but is the judgment of the

court. Ex parte Gorena, 595 S.W.2d 841, 844 (Tex. 1979).

76a

Appendix G

Most post-judgment orders made for the purpose

of enforcing or carrying into effect an already-entered

judgment are not subject to an appeal because an appeal

is typically not statutorily authorized from such an order

and because such orders are typically not final judgments

or decrees. See, e.g., Wagner v. Warnasch, 156 Tex. 334,

295 S.W.2d 890, 893 (Tex. 1956); Bahar v. Lyon Fin.

Servs., Inc., 330 S.W.3d 379, 385 (Tex. App.-Austin 2010,

pet. denied) (citing Schultz v. Fifth Judicial Dist. Court

of Appeals, 810 S. W.2d 738, 740 (Tex.1991), abrogated

on other grounds by In re Sheshtawy, 154 S.W.3d 114,

124-25 (Tex. 2004) (orig. proceeding)); State Office of

Risk Mgmt. v. Berdan, 335 S.W.3d 421, 428 (Tex. App.Corpus Christi 2011, pet. denied); Kennedy v. Hudnall,

249 S.W.3d 520, 523 (Tex. App.-Texarkana 2008, no pet.).

Non-appealable post-judgment orders must be challenged

by a petition for writ of mandamus. Sunnyland Dev. Inc.

v. Shawn Ibrahim, Inc., 597 S.W.3d 1, 3 (Tex. App.—

Houston [1st Dist.] 2020, no pet.). A direct appeal from a

non-appealable post-judgment order must be dismissed

for lack of jurisdiction. Id.; Kelly v. Wiggins, 466 S.W.3d

324, 328-29 (Tex. App.—Houston [14th Dist] 2015, no pet.).

For anything other than what could properly be

characterized as a final judgment, a post-judgment order

in the nature of a mandatory injunction resolving property

rights, or an order subject to a statutorily authorized

appeal, mandamus is the proper form to obtain review of

a trial court’s orders. See In re Amaya, 34 S.W.3d 354,

356 (Tex. App.-Waco 2001, orig. proceeding); In re Doe,

397 S.W.3d 847, 849 (Tex. App.—Fort Worth 2013, no pet.).

77a

Appendix G

The trial court’s orders—in light of Union Pacific’s

unilateral violation—qualifies as a post-judgment

enforcement order because it is (a) not inconsistent with

the original judgment; (b) not a material change in the

substantive adjudicative portions of the judgment; or (c)

not an order that requires the performance of obligations

not required by the judgment. See Custom Corporates,

Inc. v. Security Storage, Inc., 207 S.W.3d 835, 839 (Tex.

App.-Houston [14th Dist.] 2006, no pet.).; See also Kelly

v. Wiggins, 466 S.W.3d at 328.

Here, without any attempt to obtain any relief from

the requirements of the 1955 Judgment in either federal

or state court, Union Pacific violated the requirements of

the 1955 Judgment in several respects. Specifically, Union

Pacific issued a unilateral termination notice to all of the

Palestine employees. CR Vol. 1: Pages, 000084-000090.

This action constituted a complete default in its obligations

under the 1955 Judgment. CR Vol 1: Page 000244-000246.

It also failed to meet the payroll repairment for 2020. CR

Vol 2: Page 000625. Therefore, Anderson County and City

of Palestine filed a request for an enforcement order for

specific performance in the state district court. CR Vol 1:

Page 000010-000017.

On June 21, 2021, the trial court granted this relief

and ordered Union Pacific to comply with its requirements

“pending further orders of the court.” CR Vol 2: Page

000450-000451. The trial court specifically noted that the

federal court had held that its decision did not apply to the

1955 state court judgment. Id. Until these proceedings,

a Citizens Committee had participated as a party to all

78a

Appendix G

previous litigation, including the 1914 Judgment and the

1955 Judgment. The state district court in 1955 specifically

overruled an objection by the railroad and held that the

Citizens Committee was entitled to participate as a party

intervenor in the 1955 Judgment. CR Vol. 1 Page 000240.

Asserting that their predecessors had significantly

participated in the donations to the railroad and that their

rights were affected by the attempt to vacate the 1955

Judgment, a successor Citizens Committee intervened

in the current proceedings. Id. Because the trial court’s

orders granting Petitioners’ motion to enforce is not a final

judgment or an interlocutory order made appealable by

statute, it is not an appealable order. The Court of Appeals

therefore lacked jurisdiction over this appeal, and it should

have been dismissed.

C. The Court of Appeals Improperly Applied ICCTA

Retroactively to the 1955 Judgment.

Under the ICCTA, state or local laws or regulations

that have the effect of managing or governing rail

transportation are preempted. However, federal courts

have held that preemption is not to be applied retroactively

to prior valid actions.

The opinion of the Court of Appeals provides no

analysis or basis justifying the retroactive application of

the ICCTA, and the record clearly reflects that the 1955

Judgment was entered long before the congressional

adoption of the ICCTA in 1995 and long before Union

Pacific’s acquisition of the Palestine assets and obligations.

CR Vol 1: Page 000239-000251. “The Supreme Court has

79a

Appendix G

frequently noted that there is a ‘presumption against

retroactive legislation [that] is deeply rooted in our

jurisprudence.’” Lieberman v. Cambridge Partners,

LLC, 432 F.3d 482, 488 (3d Cir. 2005) (quoting Landgraf

v. USI Film Products, 511 U.S. 244, 265, 114 S.Ct. 1483

(1994). “[E]lementary considerations of fairness dictate

that individuals should have an opportunity to know what

the law is and to conform their conduct accordingly.”

Landgraf, 511 U.S. at 265. “Consequently, ‘congressional

enactments will not be construed to have retroactive effect

unless their language requires this result.’” Lieberman,

432 F.3d at 488 (quoting Bowen v. Georgetown Univ.

Hosp., 488 U.S. 204, 208, 109 S.Ct. 468, 102 L.Ed.2d 493

(1988)).

Courts should be reluctant to disrupt settled

expectations or alter the legal consequences of past

actions. Landgraf, 511 U.S. at 265-66. Cases involving

contract and property rights require predictability and

stability and are particularly inappropriate candidates for

statutory retroactivity. Id. at 270-72. Consequently, the

presumption against statutory retroactivity has special

force in the area of legislative interference with property

and contract rights. Id. at 272.

This issue of the potential retroactive effect of ICCTA

was explicitly decided soon after its enactment in both the

Eighth and Ninth Circuits, which specifically held that

there is no evidence that Congress intended for the ICCTA

to apply to pre–1996 actions. First, the Eighth Circuit

ruled against retroactive application to pre-existing

80a

Appendix G

matters in Owner-Operator Indep. Drivers Ass’n, Inc.

v. New Prime, Inc., holding that:

[A] presumption against retroactive legislation

is deeply rooted in our jurisprudence.” Landgraf

v. USI Film Prods., 511 U.S. 244, 265, 114

S.Ct. 1483, 128 L.Ed.2d 229 (1994) (citation

omitted). The rationale for this presumption

i s t hat “ [e] lement a r y considerations of

fairness dictate that individuals should have

an opportunity to know what the law is and to

conform their conduct accordingly.” Id.

339 F.3d 1001, 1006–07 (8th Cir. 2003). Consequently, the

New Prime petitioners’ Petition for writ of certiorari to

the United States Supreme Court was denied. See OwnerOperator Indep. Drivers Ass’n, Inc. v. New Prime, Inc.,

541 U.S. 973, 124 S. Ct. 1878, 158 L. Ed. 2d 467 (2004).

The Ninth Circuit then quickly followed this precedent,

also holding that the ICCTA could only preempt actions

after its enactment, reasoning that,

[w]e find persuasive New Prime’s conclusion

that in this case, as in Hughes, retroactively

expanding the universe of potential plaintiffs

would have an impermissible retroactive effect.

Because application of the ICCTA to pre–1996

ag reements would increase Defendants’

potential liability, the statute has a retroactive

effect. See New Prime, 339 F.3d at 1007. In the

absence of evidence of congressional intent to

81a

Appendix G

create such an effect, we apply a presumption

that the statute does not operate retroactively.

See Landgraf, 511 U.S. at 280, 114 S.Ct. 1483.

Because there is no evidence that Congress

intended for the ICCTA to apply to pre–1996

contracts, we hold that ICCTA’s private right

of action for damages applies only to contracts

executed after its enactment.

Rivas v. Rail Delivery Serv., Inc., 423 F.3d 1079, 1084–85

(9th Cir. 2005).

The Fifth Circuit has held that retroactivity has

only been found in “statutory language that was so clear

that it could sustain only one interpretation.” GarridoMorato v. Gonzales, 485 F.3d 319, 322 (5th Cir. 2007)

(internal citations omitted). Thus, the dispositive question

is whether Congress has expressed its clear intent that

the ICCTA apply retroactively to final judgments entered

before its enactment.

Though it fails to identify any statutory language

suggesting Congress’ intent, the opinion of the Court of

Appeals grants preemption of a 1955 Judgment executed

over 40 years prior to the existence of the ICCTA. App. A:

Page 12-14. The 1955 Judgment was valid and enforceable

at the time of its entry. For many years, the parties have

relied upon the terms of the 1955 Judgment and had the

full opportunity to know the law and conform their conduct

accordingly. A retroactive application of the ICCTA to

the 1955 Judgment will alter the Petitioners’ substantive

rights, relieve the railroad of its assumed obligations, and

82a

Appendix G

create a new cause of action that did not exist prior to its

enactment. The decision in this case to retroactively apply

the preemption provisions of the ICCTA to preempt the

1955 Judgment would relegate the doctrine of finality of

judgments to the dust bin of Texas jurisprudence. Thus,

this Court should grant review to examine this issue and

correct this improper construction of the law.

D. The Court of Appeals Failed to Remand the Case

to the District Court.

When a trial court grants a summary judgment,

the losing party appeals, and an appellate court finds

reversible error in the judgment, the appellate court’s

normal action is to reverse the trial court’s judgment and

remand the cause to the trial court. Hudson v. Wakefield,

711 S.W. 2d 628 (Tex. 1986). This court has broad

discretion to remand in the interest of justice. Ahmed v.

Ahmed, 261 S.W.3d 190, 196 (Tex. App.—Houston [14th

Dist.] 2008, no pet.). Appellate courts have remanded in

the interest of justice “when a decision has clarified the

way in which a claim should be submitted to the jury.”

Berkel & Co. Contractors, Inc. v. Lee, 543 S.W.3d 288,

308 (Tex. App.—Houston [14th Dist.] 2018), aff’d in part,

rev’d in part on other grounds, 612 S.W.3d 280 (Tex. 2020)

(citing Torrington Co. v. Stutzman, 46 S.W.3d 829, 840–41

(Tex. 2000)). Courts have also remanded in the interest of

justice if a case was “tried on an incorrect legal theory or

to establish and present evidence regarding an alternate

legal theory.” Id. Appellate courts, however, can also

remand a case when further proceedings are necessary

or when the interest of justice requires another trial. Tex.

83a

Appendix G

R. App. P. 43.3. This is often the case in situations that

require reweighing evidence or finding facts. Although

appellate courts can “unfind facts”, they are not factfinding courts. See Parsons v. Parsons, 722 S.W.2d 751,

753 (Tex. App.-Houston [14th Dist.] 1986, no writ).

Here, the judgment of the Court of Appeals failed to

remand the case, despite the decision needing further

clarification by the trial court. App A. Page 16. If the

decision to vacate the 1955 Judgment stands, both parties

would require significant clarification about the timeline

of such dissolution, the remaining length of time for

the cessation of employment, any potential payouts to

employees, equitable compensation to Anderson County,

the City of Palestine and the Citizen Intervenors; and

disposition of the donated Union Pacific property in

Palestine. Vacating a judgment is an equitable proceeding

requiring consideration of the interests of the parties.

Simply vacating the 1955 Judgment does not implement

the balancing of the equities requirements and would

not be in the interest of justice for either Union Pacific or

Anderson County, the City of Palestine and the Intervenor

Citizens.

E. The Court of Appeals Improperly Applied Laches

to the Issues Brought by Anderson County.

“Laches, in legal significance, is not mere delay but

delay that works a disadvantage to another. So long

as parties are in the same condition, it matters little

whether one presses a right promptly or slowly, within

the limits allowed by law; but when knowing his rights,

84a

Appendix G

he takes no steps to enforce them until the condition of

the other party has, in good faith, become so changed

that he cannot be restored to his former state, if the

right be then enforced, delay becomes inequitable, and

operates as estoppel against the assertion of the right.”

Culver v. Pickens, 142 Tex. 87, 176 S.W.2d 167, 170 (1943).

Laches, similar to estoppel, rests on the theory, that

because of a delay in the exercise of a legal or equitable

right, the defendant would be unconscionably prejudiced

if the right were exercised. Continental Insurance Co.

v. Stewart & Stevenson Services, Inc., 306 S.W.2d 415,

423 (Tex. Civ. App.—Houston 1957, writ ref’d n.r.e.).

Two essential elements of laches are (1) unreasonable

delay by one having legal or equitable rights in asserting

them and (2) a good faith change of position by another

to his detriment because of the delay. City of Fort Worth

v. Johnson, 388 S.W.2d 400, 403 (Tex. 1964). Although

some appellate courts have viewed laches as a defense

against the enforcement of equitable rights, the Texas

Supreme Court and many appellate courts have included

legal rights as well. Id. (laches is “unreasonable delay

by one having legal or equitable rights in asserting

them”); Preston Tower Condominium Association v. S.B.

Realty, Inc., 685 S.W.2d 98, 103–04 (Tex. App.—Dallas

1985, no writ) (laches was used as a defense against the

enforcement of a lease restriction); Smith v. Smith, 681

S.W.2d 793, 796 (Tex. App.—Houston [14th Dist.] 1984, no

writ); De Benavides v. Warren, 674 S.W.2d 353, 362 (Tex.

App.—San Antonio 1984, no writ).

Here, Petitioners have certainly met the elements to at

least establish a fact issue on the issue of laches. Twenty-five

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years passed between the passing of the ICCTA and Union

Pacific’s first dissent about the long-standing arrangement

between Union Pacific and Petitioners. CR Vol. 1: Pages,

000084-000090. Union Pacific’s delay led Petitioners to rely

on, in good faith, the continued employment opportunities

for their residents and the expenditure of public funds

to support the employment by the railroad. Vacating the

requirements of the 1955 Judgment will lead to significant

detriment to Petitioners and their residents. There will

be decreased employment opportunities, decreased

taxable income for the two governmental entities, and

other harms. The opinion of the Court of Appeals implies

that twenty-five years is not an unreasonable delay, and

states that Union Pacific’s 2018 internal business model

decision was sufficient notice to prevent unreasonable

delay without explanation. App. A: Page 15. The Court

of Appeals’ opinion discounts the affidavit of Anderson

County Judge Robert Johnston because “Judge Johnson

(sic) testified in his deposition that the road services other

properties in the area.” Id. This analysis ignores the fact

that the road was improved and maintained solely at the

request of Union Pacific and that Anderson County will be

compelled to continue to maintain the road at its expense.

App A: Page 14. The reversal and rendering of a decision

on this issue exceeds the role of the appellate court to

determine whether there is a sufficient lack of evidence

of a material fact issue to warrant summary judgment. In

this case, there is certainly sufficient evidence of delay and

detrimental reliance by Petitioners to require a hearing

on the merits. The opinion and judgment of the Court

of Appeals should be reversed, and the issue of laches

remanded to the trial court for further proceedings.

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Appendix G

The Court of Appeals’ opinion further discounts

the evidence that Petitioners presented regarding their

financial planning decisions. App. A: Page 15. Removing

a major employer from a community will have significant

financial impacts to that community. In this equitable

proceeding, the trial court was required to consider the

imminent harm to the employees of Union Pacific and

the citizens in the community if the income from the

payroll requirement was terminated. There is ample

evidence in the record of the importance of the continued

maintenance of this payroll to the employees and the

community. CR Vol. 1: Pages, 000084-000090; CR Vol. 6:

Pages 0001450-0001452. The employees of Union Pacific

will be immediately harmed by the elimination of their

economic livelihood and this will inflict direct harm on

the citizens of the City of Palestine and Anderson County.

The record in this case is sufficient to create a material

fact issue and requires remand for hearing on the merits

of this equitable remedy.

F. The Court of Appeals Improperly Found that the

Intervenor Citizens were Parties to the Federal

Proceedings.

The opinion of the Court of Appeals is erroneously

based upon an incorrect finding that “Union Pacific,

Palestine, Anderson County, and the Citizens Committee

were all parties to the federal case.” App. A: Page 11. As

demonstrated by the record in this case, the Intervenors

Citizens Committee was not a party to the federal case.

CR Vol 10: Pages 0002469-0002487.

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Appendix G

G. The Court of Appeals Improperly Applied the

Doctrine of Collateral Estoppel to a Final

Judgment.

The opinion of the Court of Appeals held that

“collateral estoppel applies to this case.” However, there

are at least two essential elements of collateral estoppel

that are missing in this case. First, the issue decided in

the first case must be identical to the issue in the pending

suit. State & Cty. Mut. Fire Ins. v Miller, 52 S.W, 3d

693, 696 (Tex. 2001). The equitable issues and applicable

legal standards in an action to vacate a final state court

judgment are substantively distinct from the preemption

issues pertaining to a private contract in the federal

proceeding. Second, as previously stated, the Citizens

Committee was not a party to the federal case. CR Vol

10: Pages 0002469-0002487. Collateral estoppel does not

apply if the parties are not the same. Southwest Guar.

Trust Co. v. Providence Trust Co., 970 S.W. 2d 777, 784

(Tex. App.—Austin 1998, pet. denied). The legal issues

must have been fully and fairly litigated in the previous

action. Union Pacific did not litigate whether the ICCTA

preempts the 1955 Judgment in the federal proceedings.

Both the federal district court and the circuit court of

appeals noted that their decisions did not affect the 1955

state court judgment. CR Vol 10: Pages 0002469-0002487

Clearly, there are different issues involved in the state

and federal proceedings. The federal anti-injunction

act precludes a federal court’s review of a final state

court judgment. The state courts have sole jurisdiction

to review their judgments. Also, the issues and burden

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Appendix G

upon Union Pacific to plead and submit proof justifying

a basis for modification of a state court judgment is

substantially different and greater than its burden and

the issues involved with a federal declaratory judgment

action pertaining to the private contract embodied in the

1954 agreement. Likewise, Union Pacific failed to seek or

obtain a finding that the ICCTA preempts the agreed 1955

Judgment. Finally, the Intervenor Citizens Committee,

a party to the 1955 Judgment, was not a party to the

federal proceeding. Due process requires that collateral

estoppel only apply to persons who have already had their

day in court. Because Union Pacific failed to litigate the

same issues and failed to include the same parties in the

federal proceeding, offensive collateral estoppel does not

apply. The reliance on this determination by the Court of

Appeals was error.

PRAYER FOR RELIEF

For the reasons stated in this petition, the Petitioners

respectfully request that the Supreme Court grant

this petition for review, request merits briefing from

the parties, set this case for oral argument, and after

argument, reverse the judgment of the Court of Appeals

and restore the trial court’s order requiring specific

performance of the terms of the 1955 Judgment by Union

Pacific. Alternatively, this Court should reverse the

judgment of the Court of Appeals and remand this matter

for further proceedings in the trial court. Petitioners

additionally pray for such other and further relief to which

they may be justly entitled.

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Appendix G

Respectfully submitted,

/s/ James P. Allison

James P. Allison

SBN: 01090000

j.allison@allison-bass.com

Susana Naranjo-Padron

SBN: 24105699

s.naranjo-padron@allison-bass.com

ALLISON, BASS & MAGEE, L.L.P.

1301 Nueces Street, Suite 201

Austin, Texas 78701

(512) 482-0701 telephone

(512) 480-0902 facsimile

D. Bryan Hughes

SBN: 00793995

bryan@bryanhughes.com

Law Office of D. Bryan Hughes

110 N. College Ave. Suite 207

Tyler, Texas 75702

(903)581-1776 telephone

(903) 630-8794 facsimile